The Federal Trade Commission and U.S. Department of Justice's Antitrust Division said this month that they will continue to use Biden-era merger guidelines, contrary to predictions that the Trump administration would relax antitrust enforcement.
Going forward with the stricter guidelines championed by former FTC Chair Lina Khan could indicate more robust enforcement of antitrust law than is typical for a Republican administration, attorneys said this week.
“The Trump administration is challenging to predict, I will say, but I'm not expecting a substantial reduction in enforcement,” said Mayer Brown partner Rachel Lamorte.
Reed Smith partner Michelle Mantine said many companies looking to complete merger deals were excited with the change in administration, thinking there would be an immediate return to lighter enforcement.
Now, “I think a lot of companies are like, ‘Wait, what's happening here?'” Mantine said. “So there's a little bit of that reaction of: ‘Now what do we do? It's not changing. What does that mean for us?'“
New FTC Chair Andrew Ferguson, a Republican, reaffirmed his agency's support for the guidelines, saying stability is good for enforcement agencies.
“The wholesale rescission and reworking of guidelines is time consuming and expensive,” Ferguson said in a statement. “We should undertake this process sparingly. We have limited resources to patrol the beat, and constant turnover undermines agency credibility.”
Ferguson added in a memo to staff that he will consider revisions to the guidelines if appropriate.
Troutman Pepper Locke partner Brad Weber agreed that rewriting merger guidelines is a big undertaking that would take a lot of time and resources for the commission to accomplish. He added that the guidelines are not law.
“They can always use the current guidelines and just not follow all of them,” Weber said. “They can still make decisions on mergers that may be inconsistent with some of the framework within the guidelines and just decide they're not going to follow it.”
The FTC this month also left undisturbed Biden-era Hart-Scott-Rodino regulations governing premerger notification filings.
“I do think that keeping the guidelines and also the HSR filing rules does support stability,” said Lamorte, of Mayer Brown. “And I think as a general matter, that's really good for businesses as they are planning.”
But Weber, of Troutman Pepper Locke, said the Biden-era HSR rules are more onerous to comply with and are increasing the legal costs for parties.
“A lot of us were hoping that once the Republicans took control of the FTC and DOJ that they might rescind those new rules, but public statements have indicated that that's not the case,” he said.
Reprinted with permission from the February 28th edition of The National Law Journal © 2025 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
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