I. Introduction
President Trump's return to the White House will likely bring a noticeable shift in U.S. antitrust regulations and enforcement priorities. Below, we examine possible enforcement changes under a second Trump term, and offer some fearless forecasts focusing on several key areas: Hart-Scott-Rodino (HSR) Act implementation, Merger Guidelines interpretation, Big Tech enforcement actions, and agency leadership transitions at the Antitrust Division of Department of Justice (DOJ) and the Federal Trade Commission (FTC).
II. HSR Rules Implementation
The new HSR rule, which imposes an increased burden for U.S. premerger filings submitted on and after February 10, 2025, is grounded in statutory authority of the HSR Act and governed by the Administrative Procedure Act (APA).1
Under the APA, all regulations by federal agencies need to go through a formal rulemaking process, including a notice of proposed rulemaking (NPRM) followed by a public comment period, agency response, and the issuance of a final rule with a future effective date.2 At this point, the new HSR rule proposed by the FTC has completed every stage of the required rulemaking process, and is set to take effect on February 10, 2025. Because "agencies cannot change regulations arbitrarily,"3 should the FTC under the new Trump Administration decide to rescind or modify the published Final Rule, it would need to restart the entire rulemaking process,4 following the APA's general notice and public comment requirements, which can be time consuming.
The Final Rule, approved unanimously (5-0) by an unusually bipartisan FTC, represents a compromise from the June 2023 Proposed Rule reportedly reached by removing some of the more burdensome reporting requirements. Given procedural challenges and the time required to withdraw or modify this bipartisan rule, we believe the new Trump Administration will likely keep the new HSR Rule, although the FTC could decide to delay its final implementation (as could potential legal challenges).
Though unlikely to rescind the rule, the new administration can influence its implementation by directing the agencies to interpret certain filing requirements through a lenient lens. The FTC's website states that "over the next few months, we will continue to post information to guide filers in using the new form."5 This guidance may change after January 20, 2025 to provide a more practical approach to comply with some of the more burdensome requirements.
III. Merger Guidelines
While influential, the 2023 Merger Guidelines, which set forth the framework that DOJ and FTC now apply to evaluate transactions, remain non-binding. Rescinding or modifying these guidelines is relatively easy compared to the mandatory rulemaking process required for withdrawing or modifying the new HSR rule. Such a change has already been suggested by Republican FTC Commissioner Melissa Holyoak. During a webinar hosted by George Mason University's Mercatus Center, Commissioner Holyoak criticized that the 2023 Guidelines cite "a lot of old case law," and that she would "strongly consider rescinding or revising the 2023 Merger Guidelines."6
The 2023 Merger Guidelines mark a substantial departure from previous regulatory approaches, introducing several fundamental changes to the merger review framework. In terms of market share analysis, the guidelines implemented lower thresholds for presumptive illegality and moved away from earlier market concentration standards. Regarding vertical integration oversight, they adopted stricter scrutiny of vertical mergers, as demonstrated by the Microsoft-Activision case review, which proved unsuccessful at trial and remains under appeal. The guidelines also expanded their scope to include broader labor market considerations, introducing wide-ranging workforce impact criteria into merger evaluations.
Previous frameworks typically emphasized case-specific competitive analysis, acknowledged potential efficiency benefits in vertical integration, and confined labor market analysis primarily to specialized workforce segments with limited employment alternatives. The new Trump Administration could revise these guidelines to align more closely with traditional merger analysis frameworks, though specific policy directions would depend on leadership priorities and market conditions at the time. However, just as it took time and effort to draft the new 2023 Merger Guidelines, it would take time and effort to draft new guidelines to replace the 2023 Guidelines. Therefore, the most obvious and straightforward fix is to revert to the 2010 Horizontal Merger Guidelines – a document with 13 years of experience and interpretation history behind it.
Moreover, under the new Trump Administration, both agencies may be more willing to return to a traditional approach of accepting structural remedies, rather than focusing on litigation to block transactions with potential competitive concerns. Consequently, more complex transactions could be completed through consent decrees involving divestitures, rather than being challenged in court as the Biden Administration has done. This is the Art of the Deal presidency – 2.0.
IV. Big Tech Oversight
During President-elect Trump's first term, agencies launched major investigations of Big Tech, including DOJ's landmark lawsuit against Google's monopolization of internet search (which it recently won), and the FTC's litigation against Meta for its unlawful monopoly over social media (which is about to go to trial).
The new Trump Administration is likely to continue scrutiny over Big Tech, as suggested by Vice President-elect JD Vance's support for targeting big tech companies and his public praise of current FTC Chair Lina Khan, calling her "one of the few people in the Biden Administration... doing a pretty good job," while appreciating Khan's "broader understanding of how we think about competition in the market place."7
Although the new Trump Administration is expected to continue existing enforcement against Big Tech, it may take a less aggressive approach to competition law than the Biden Administration. The Google search case illustrates this potential shift - while DOJ is currently evaluating various remedies including breaking up Google and requiring divestiture of products like the Chrome browser, the trial regarding remedies will not begin until April 2025. This timing could allow for strategic adjustments under new leadership. Recent statements from President-elect Trump suggest a preference for less drastic measures, as he commented that "what you can do about Google without breaking it up is make sure it's more fair," indicating an inclination toward more moderate remedies.8
Changes in political regimes have historically influenced major antitrust cases, as illustrated inU.S. v. Microsoftin the early 2000s.9 Under the Clinton Administration, DOJ pursued an aggressive breakup strategy targeting Microsoft's monopolistic practices in software bundling and market control. However, when the Bush Administration assumed office in 2001, DOJ quickly shifted focus towards negotiating remedies, dropping its previous push for a breakup and eventually reaching a consent decree that preserved Microsoft's corporate structure, including limits on certain contracting practices, mandated disclosure of certain software program interfaces and protocols, and rights for computer manufacturers to limit the visibility of certain Windows features in new PCs. DOJ also retained the right to monitor compliance and to impose additional penalties if necessary. The Google search case could follow a similar pattern of evolution in enforcement strategy.
V. FTC Non-Compete Rule Status
The FTC's non-compete rule has faced legal challenges since its introduction. Two key court decisions have halted its implementation: Ryan LLC v. FTC, which blocked nationwide enforcement of the ban on employer non-compete agreements10, and Properties of the Villages, Inc v. FTC, which prevented enforcement against the specific plaintiff.11 While the FTC has appealed both rulings, these appeals are unlikely to reach resolution before the transition in January. Under new leadership, the FTC could withdraw these appeals, leaving the Ryan court order in place and effectively preventing nationwide implementation of the non-compete rule.
VI. Agency Leadership Transition
Leadership transitions are currently pending at both major antitrust enforcement agencies. At the FTC, Chair Khan's term officially ended on September 25, 2024, although she may remain as Commissioner until her replacement is confirmed by the Senate. While popular with some Republicans, we believe that Chair Khan is likely to resign soon both as Chair and Commissioner, giving the new president12 the opportunity to nominate a new chair and a new commissioner – and swing the FTC to 3-2 in favor of Republicans upon approval by the Republican Senate. Based on the transition in 2021, Senate confirmation of a new Chair may occur around June 2025. However, it could be different this time as President-elect Trump has been picking nominees at a rapid pace. Until Chair Khan leaves office, the Commission's current three-Democrat majority is likely to maintain its aggressive enforcement approach, but upon her departure, the FTC will be stuck in a 2-2 split between Republican and Democrat commissioners and likely to be unable to agree on new actions until the Senate approves a new Republican commissioner.
For the Department of Justice's Antitrust Division, recent historical patterns suggest the nomination and confirmation process for a new Assistant Attorney General typically spans 8-10 months after a new administration takes office.13 Again, this timeline could be accelerated if President-elect Trump's current pace of naming Cabinet officials continues at the Assistant Attorney General level, but, on the other hand, the timeline could be delayed if there are problems with the nominee in the Senate confirmation process. There has been recent talk of avoiding delays in the Senate confirmation process by making recess appointments, but it is unclear if this is a realistic option or simply an idea at this point. In any interim period, the new administration would likely designate an Acting Assistant Attorney General to lead the Antitrust Division.
VII. Looking Ahead
In sum, we anticipate that both antitrust agencies in the second Trump Administration will maintain robust enforcement, particularly regarding Big Tech companies. However, the approach is likely to reflect some overall tempering of the Biden Administration's apparent hostility toward M&A activity.
Footnotes
1. 5 U.S.C. § § 551-559.
2. 5 U.S.C. § 553.
3. Susan Dudley, Reversing Midnight Regulations, Regulation Vol. 24, No. 1 (Spring 2001) available at:
http://object.cato.org/sites/cato.org/files/serials/files/regulation/2001/4/dudley.pdf.
4. 5 U.S.C. §551 et seq. defines "rulemaking" as "formulating, amending, or repealing a rule," indicating that an agency must follow the rulemaking procedures set forth by the APA to change or repeal a rule. See also, Congressional Research Service (CRS), Midnight Rulemaking: Background and Options for Congress (Oct. 4, 2016), https://fas.org/sgp/crs/misc/R42612.pdf, at 9.
5. See https://www.ftc.gov/enforcement/premerger-notification-program (last accessed on 11/18/2024).
6. See Justin Wise, GOP FTC Commissioner Says She'd Consider Undoing Merger Guidance, Bloomberg Law, (Oct. 30, 2024), https://news.bloomberglaw.com/antitrust/gop-ftc-commissioner-says-shed-consider-repealing-merger-rules.
7. Rebecca Klar, Vance: Biden FTC Chief is "Doing a Pretty Good Job" (Feb. 27, 2024), https://thehill.com/policy/technology/4491363-vance-biden-ftc-chief-is-doing-a-pretty-good-job/. See Michael L. Weiner, Lina Khan: Khantroversy and Khanservatives, https://www.steptoe.com/en/news-publications/antitrust-and-competition-blog/lina-khan-khantroversy-and-khanservatives.html.
8. See Nico Grant, David McCabe, Trump Signals Skepticism of Google Breakup, Citing Competition With China, (Oct. 15, 2024), The New York Times, https://www.nytimes.com/2024/10/15/us/politics/trump-google-monopoly-china.html.
9. U.S. v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001).
10. Ryan LLC v. FTC, No. 3:24-CV-00986-E (N.D. Tex).
11. Properties of the Villages, Inc v. FTC, No. 5:24-cv-00316 (M.D. Fla).
12. If Chair Khan were to step down in the immediate future, President Biden could nominate a potential commissioner for Senate approval, but there is no indication that such a move is in the works.
13. The current AAG, Jonathan Kanter, was confirmed on November 16, 2021, around 10 months after President Biden's inauguration; former AAG Makan Delrahim during the first Trump Administration was confirmed by Senate on September 27, 2017, around eight months post-inauguration.
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