Many businesses and organizations are in the unique position of having already observed four years of antitrust enforcement under President-elect Donald J. Trump. That, plus the well-publicized records of his announced nominees for antitrust positions, provides heightened insight into enforcement priorities for his second term.
The intended nominees:
- Gail Slater, tapped to lead the Department of Justice Antitrust Division, a former policy advisor for Vice President-elect JD Vance, and a former tech policy advisor at the National Economic Council
- Andrew Ferguson, currently a commissioner at the Federal Trade Commission (FTC) and the choice for FTC chair, who has said the FTC should continue its scrutiny of dominance by tech platforms but otherwise has more traditional views on enforcement
- Mark Meador, the pick for the third Republican seat on the FTC, who holds pro-enforcement views, especially on tech platforms
With that background, here are five must-watch storylines for 2025:
1) Tenacious Big Tech Enforcement Will Continue. The first Trump Administration was focused on technology companies and sued several—including Meta, which the administration claimed had unlawfully accumulated monopoly power via transactions such as its acquisitions of Instagram and WhatsApp. Expect more cases challenging the dominance of tech companies but with skepticism of breaking up these companies.
2) Expect More Mergers—and Maybe More Paperwork. The Biden Administration has been a difficult time for deals. More than a dozen transactions have been challenged, and the agencies have almost blanketly refused to accept divestitures as remedies. Commissioner Ferguson and Slater will likely adopt a more traditional approach to transactions, so expect more deals. In addition, on February 10, 2025, the first major changes to the Hart-Scott-Rodino Act (HSR) premerger notification requirements in the last 45 years are slated to go into effect. The changes will require parties to disclose significantly more information and documents related to transactions, including more details about deal rationales, the parties, and industries involved. Business leaders are lining up in opposition and are considering asking the new Congress to rescind the rules. Commissioner Ferguson expressed some support for these changes but Slater's position is less defined. Wait and see if the new requirements go into effect as scheduled, but be prepared for more complicated and burdensome merger filings.
3) FTC Rulemaking May Be Over. Though a key FTC policy in the Biden Administration was the ban on non-compete agreements in employment, Commissioner Ferguson was a vocal opponent of the rule and the FTC's authority to promulgate rules concerning unfair competition more generally. Expect FTC rulemaking to all but disappear.
4) State Attorneys General Will Be More Aggressive. For the past decade, state attorneys general across the political spectrum have flexed their antitrust authority. Just recently, Texas and similarly aligned states sued asset managers, claiming they conspired to artificially constrain US coal output. Expect similar efforts from the left, as attorneys general in places like California and New York try to plug perceived holes in antitrust enforcement. Also, expect new or amended state antitrust legislation that will seek to provide greater scrutiny and harsher punishment for anticompetitive behavior. For instance, Pennsylvania—the only state without its own antitrust law—is in the process of enacting state-specific antitrust and health care merger notification standards. California, which has had antitrust laws for over a century, is aiming to strengthen its enforcement capabilities by bringing criminal prosecutions for offenses.
5) Vigorous FTC Enforcement Will Continue. Outgoing FTC Chair Lina Khan championed an expanded view of the FTC's authority to root out practices of unfair competition beyond what is anticompetitive under the antitrust laws. Though both current Republican commissioners have been critical of this expansion, Commissioner Ferguson thinks such enforcement should be scrutinized but not eliminated outright. Expect the FTC to continue to be active in enforcement.
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