The Federal Trade Commission (FTC) remains vigilant about the risks of underenforcing merger regulations, even as the landscape of antitrust enforcement evolves under the current Trump administration. Deal makers have continued to experience an ongoing commitment to robust merger scrutiny by the FTC, a trend that has intensified since the first Trump administration and accelerated during President Biden's tenure.
A Shift Toward Aggressive Enforcement
At a recent George Washington University Law School event, FTC Mergers I Division Acting Assistant Director Jordan Andrew emphasized that, over the past several administrations, there has been a clear shift toward addressing concerns of underenforcement rather than overenforcement in merger review. This approach seeks to prevent excessive corporate concentration, which can stifle competition and harm consumers. The FTC and Department of Justice (DOJ) have increasingly favored a more assertive stance, particularly in industries where market power is consolidating, in particular targeting the Big Seven.
Evolving Enforcement Tools and Philosophies
While the Trump administration has revived the practice of granting "early termination" for the review of mergers deemed unlikely to harm competition, it is also reconsidering the approach to resolving merger cases. Unlike the Biden-era DOJ, which often set a high bar for accepting merger settlements and preferred to challenge deals outright, the Trump-era enforcers are open to reintroducing consent decrees. DOJ Antitrust Division Principal Deputy Assistant Attorney General Roger Alford explained that this change offers a third path, beyond simply approving or challenging deals, by allowing regulators to monitor and enforce commitments made by merging companies.
Continuity With Biden-Era Guidelines
Despite some procedural differences, Trump administration officials have embraced the 2023 merger review guidelines developed during the Biden administration. FTC Chairman Andrew Ferguson has underscored the importance of continuity in enforcement, noting that courts are increasingly referencing these guidelines, which reflect a more aggressive posture toward merger scrutiny.
Balancing Innovation and Enforcement
Andrew acknowledged the need to balance aggressive enforcement with the promotion of innovation and economic growth. He stressed that each merger investigation requires a nuanced understanding of the relevant market and careful consideration of how a transaction might affect competition and innovation. Internal corporate documents and strategic plans are central to this analysis, helping regulators assess whether a merger would eliminate meaningful competition or create new efficiencies.
Looking Ahead
With FTC leadership reaffirming a tough stance on both merger and conduct cases, especially in the technology sector, the agency appears poised to continue its aggressive enforcement trajectory. At the same time, officials are mindful of the need to avoid stifling innovation or growth, aiming for a balanced approach that protects competition while fostering a dynamic economy. While not the most important, the more balanced approach to enforcement will certainly contribute to increasing deal flow in the second half of 2025.
[1] The 2023 Merger Guidelines: Analysis and Issues for Congress. Congress Gov. (2024, March 28). https://www.congress.gov/crs_external_products/LSB/PDF/LSB11138/LSB11138.1.pdf
[2] Meyersohn, N. (2025, February 20). The trump administration is reversing Biden policies everywhere. but it's keeping this one | CNN business. CNN. https://edition.cnn.com/2025/02/20/business/ftc-merger-guidelines
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