New Federal Trade Commission (FTC) Chair Andrew Ferguson and Acting Assistant Attorney General of the Department of Justice (DOJ) Omeed Assefi have separately announced that the U.S. antitrust agencies will continue to apply the merger guidelines adopted under the Biden administration as the framework for assessing mergers.
The guidelines were adopted in 2023 and amounted to a major shake-up in U.S. merger control policy.
They set out a lower concentration threshold for presuming the illegality of horizontal transactions. They also promote less traditional theories of harm, including the cumulative effects of serial acquisitions, the potential adverse impact of a deal on labor markets, and an expanded framework for assessing vertical mergers.
They were seen as a reflection of the aggressive approach to merger control enforcement adopted by the agencies under the Biden Administration, where we saw merger enforcement activity reach record highs.
The announcements will therefore come as a surprise to many. Under a "pro-business" Trump administration, there was at least some expectation that the agencies would row back on some of the more novel aspects of the guidelines.
In a memo to FTC staff, Chairman Ferguson is clear that "stability" is key. He says that guidelines will become "largely worthless to businesses and the courts" if they change with every administration. From an agency perspective, he notes that the recission and reworking of guidance is time consuming and expensive and should be undertaken sparingly.
Ultimately, Ferguson notes that the 2023 guidelines are "a restatement of prior iterations of the guidelines, and a reflection of what can be found in case law." This, he says, is "good reason to retain them."
Acting AAG Assefi's note to DOJ Antitrust Division staff follows a very similar line. He quotes responses by Gail Slater, Trump's nominee to head up the Antitrust Division, as part of her confirmation process. She set out her agreement with Chairman Ferguson's approach to the merger guidelines and committed to follow them.
However, both Ferguson and Assefi acknowledge that the merger guidelines are not perfect. They leave it open that there may be revisions in future. Any change will, according to both officials, go through the usual iterative and transparent revision process.
For merging parties, a stable and predictable approach to merger control enforcement is important. But many will have been hoping for a clear signal that the U.S. antitrust agencies plan to adopt more permissive (or at least a more balanced) approach under Trump 2.0.
That shift is not off the cards. Even in continuing to apply the 2023 merger guidelines, we may still see the FTC and DOJ recenter their focus in merger assessment on more traditional theories of harm, rather than novel concerns such as labor market issues. Enforcement practice in the coming months will be a crucial indicator of the path forward.
In the meantime, the overhauled merger filing requirements took effect on February 10, 2025. Merging parties now face much greater submission requirements, which will inevitably impact resourcing and deal timelines.
Read more about the impact of U.S.—and global—merger control enforcement in our global trends report.
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