After the election of President Trump, the antitrust community wondered whether he would maintain the relatively business-friendly approach of his prior term or embrace a more populist approach. Clearly, some of the edge on the aggressive and often hostile rhetoric of the Biden administration will be dulled. However, the new Hart-Scott-Rodino merger notification rules drafted by the Biden administration, which many in the business community loudly protested but were adopted by a 5-0 vote, took effect in February and it appears that the ongoing investigations and lawsuits against Big Tech, some of which were either filed or investigated by the Trump administration, will continue. Trump 2.0 also appears committed to strong antitrust enforcement with FTC Chairman Andrew Ferguson recently stating: "If we think that you have violated the law ... then we're going to enforce it." So how does this bode for merger enforcement under Trump 2.0? And, how does it compare with recent developments on merger enforcement in the UK and EU where there appears to be a turn toward a more business-friendly position on mergers?
United States
The Biden administration was aggressive in investigating mergers and refusing to enter consent decrees, leading to many mergers being abandoned. The natural result was an environment that deterred mergers. Given the posture of the Biden administration, almost any other approach would be less aggressive for merger enforcement, but in the first 45 days, there has been a mix of continuity and change.
At her confirmation hearing, incoming DOJ Antitrust Division head Gail Slater expressed a preference for "robust divestitures" that "can remove any competitive harm from a merger," rather than seeking to halt mergers outright. At the FTC, Chairman Andrew Ferguson has signaled a need for consistency and "vigorous" antitrust enforcement while keeping an eye out to make changes where needed. Ferguson announced that the Biden administration's merger guidelines will remain in force, reasoning that businesses need regulatory predictability, but also stated "[t]here are parts of those guidelines ... that push the envelope a bit." He plans for the FTC to work with the DOJ to ensure the guidelines align with established law and suggested that revisions would be part of "an iterative, transparent revision process" rather than wholesale replacement.
The DOJ has already demonstrated that it will not be a lighter touch on merger enforcement across the board. In the second week of Trump 2.0, the DOJ filed a lawsuit challenging Hewlett Packard's $14 billion acquisition of Juniper Networks. Hewlett Packard and Juniper are major players in the Wireless Local Area Network (WLAN) networking market, where Cisco is considered to be the market leader. In contrast to the DOJ's approach, the EU and UK had already approved the proposed transaction, likely because of the view that the proposed merger would lead to a single firm better able to compete with Cisco.
On March 6, the Trump 2.0 FTC announced its first merger challenge. The FTC sued to block GTCR's $627 million acquisition of Surmodics, alleging that the deal to combine the two largest manufacturers of friction-reducing hydrophilic coatings for medical devices, is anticompetitive. The Commission vote was 4-0 in favor of the lawsuit. This is an early sign that the Trump 2.0 FTC intends to take an active role in merger enforcement and is consistent with Chairman Ferguson's pledge for "vigorous" enforcement.
These early examples show that hopes in some quarters that Trump 2.0 would lead to wholesale change in merger enforcement were misplaced, but their significance should not be overstated at this stage. The degree of change from the Biden administration's strategy should become clearer over the next year as it conducts its own merger investigations.
United Kingdom
More dramatic changes are happening across the pond. The UK Competition & Markets Authority (CMA) has faced criticism for a perceived hostility to business, opaque decision-making, and poor management, leading the UK government, in an unprecedented move, to oust the chair of the CMA in late January, replacing him with Doug Gurr, a former Amazon UK executive. This action reflects the British government's desire to be friendlier to business and demonstrates its longstanding frustrations with the CMA's operations. Gurr has already promised that investigations will be "as simple and rapid as possible," while also pledging reduced review of global transactions. According to Gurr, the agency will also cut timelines on some reviews to speed up the process and focus on "good decisions, clear decisions, rapid decisions" in reviews.
European Union
On the continent, the European Union has shifted toward promoting its global competitiveness, following a perceived loss of status compared to the United States and China. In November 2024, former European Central Bank President Mario Draghi issued a report assessing the EU's competitiveness, which focused on the weakness of the EU's high-tech industry. He called for an ambitious €800 billion in yearly additional investment in energy transition, digital, defense, and innovation, and a more flexible review of telecom mergers, especially in considering whether a merger would drive innovation. Draghi did not specify where the additional funds would come from. At the same time, President of the European Commission Ursula von der Leyen directed the new European Union Competition Commissioner Teresa Ribera to foster a new approach to competition policy that is more supportive of companies scaling up in global markets. In January, she also stated that the EU must be more business-friendly if it is to compete with the United States and China.
Collectively, these developments suggest a pivot to a friendlier antitrust merger enforcement environment in the United States, United Kingdom, and European Union, though the precise parameters remain undefined. The CMA's changes have not yet been fully implemented, while the EU's changes may prove more aspirational than practical. And with the first days of Trump 2.0 suggesting some business-friendly policies along with some moves on the enforcement front, more time is needed to reveal the extent of recalibration from Biden-era policies.
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