Now more than a month into President Trump’s second term, the Administration’s antitrust enforcement priorities have begun to take shape. Recent actions indicate that the Federal Trade Commission (FTC) and Antitrust Division of the U.S. Department of Justice (DOJ) will continue to focus on labor markets and keep a close eye on the most systemically important technology companies, with a new emphasis on content moderation practices. The antitrust agencies’ recent actions also provide insight into the possible trajectory of merger enforcement under the Trump Administration, with the agencies announcing that they will continue to evaluate proposed transactions under the President Biden-era merger guidelines.
At the same time, some uncertainty about the practical outcomes of agency practice remains, particularly in light of President Trump’s recent executive order reining in independent agencies, which prohibits the FTC from advancing legal interpretations that contravene those of the DOJ.
This alert is part of an ongoing series on what you need to know about how antitrust enforcement is shaping up under President Trump’s second administration.
Antitrust Agencies Signal Focus on Tech Platforms’ Content Moderation Practices and Labor Markets
Deplatforming and Content Moderation
As expected, the new heads of the antitrust agencies have signaled a commitment to scrutinizing the content moderation policies of digital platforms, citing concerns over the motivation for and effects of deplatforming and other practices that limit users’ access to technology platforms.
On February 20, 2025, the FTC issued a Request for Information (RFI) seeking public comment on technology platforms’ alleged practice of denying or limiting users’ access based on the content of their speech or affiliations. The RFI expresses concern that tech platforms’ moderation practices, including banning, shadow banning, and demonetizing users, “may affect competition, may have resulted from a lack of competition or may have been the product of anti-competitive conduct.”1 The FTC also claims that such practices may violate platforms’ terms of service or run afoul of the platforms’ public-facing representations.
The RFI casts a broad net, defining technology platforms to include “social media, video sharing, photo sharing, ride sharing, event planning, internal or external communications, or other internet services”; and seeking information about advertiser-customers who may have influenced the platforms themselves.
The inquiry indicates that the FTC is looking to use its unique authority under Section 5 of the FTC Act, which prohibits both “unfair methods of competition” as well as “unfair or deceptive acts or practices.”2 Even where traditional antitrust theories of harm may not prohibit certain platform policies, the FTC may still pursue a consumer protection investigation if users were deceived or harmed.
During his confirmation hearing before the U.S. Senate on February 25, 2025, FTC Commissioner nominee Mark Meador echoed that the FTC may act on content moderation policies using both these authorities. Meador, who is nominated to fill the third Republican seat on the Commission, testified that “there are two avenues through which the FTC could potentially address this kind of conduct. There’s the antitrust laws, so if you have competitors colluding on content moderation standards, that could potentially amount to a violation of the antitrust laws. And on the consumer protection side, if the application of terms of service or other promises made by a platform end up being deceptive in some way to consumers, you could potentially have a concern there under the FTC Act.”
Public comments to the RFI are due May 21, 2025. While the inquiry does not announce a formal investigation or enforcement action, it does state that these comments “could inform the FTC’s enforcement priorities and future actions.”3
Recent comments by Gail Slater, President Trump’s nominee for head of the DOJ Antitrust Division as Assistant Attorney General (AG), indicate that she shares the FTC’s concern and may be interested in opening a competition-related investigation at the DOJ. During her February 11, 2025, confirmation hearing before the Senate Judiciary Committee, Slater pointed to de-platforming of conservative voices as an example of how market concentration can pose a threat to personal liberties. She also testified about a now-disbanded advertising trade association that allegedly engaged in a boycott of conservative news outlets. In response to a question about a hypothetical cartel targeting conservative media, Slater stated that it was “fair to say a certain amount of collusion went on via this trade association, and I think that pattern of conduct is quite troubling.”
It is unusual for both the DOJ and FTC to investigate the same potentially anticompetitive conduct, so we will have to stay tuned for the conclusion of the RFI and Slater’s confirmation to see how the agencies move forward in addressing their concerns. In the meantime, technology platforms may want to review and document the procompetitive reasons for their content moderation policies and audit the practices of trade associations in which they participate.
Labor Markets
On February 24, 2025, FTC Chairman Andrew Ferguson announced that the FTC is launching a “labor markets task force” aimed at investigating corporate practices that may violate antitrust and consumer protection laws. During an event on Capitol Hill, Chairman Ferguson stated that one of the ways to combat the effects of inflation is to ensure wages remain high, and that “one of the ways the FTC is going to focus on this very intentionally is making sure that unfair competition or deception or unfairness do not suppress American wages.”
Chairman Ferguson stated that as part of this effort, the FTC’s Bureau of Competition, the Bureau of Consumer Protection, and the Bureau of Economics will investigate corporate practices that may violate the antitrust laws, with a focus on noncompete agreements, no-hire clauses, and no-poach agreements. Chairman Ferguson described this as one of the top priorities of the new Administration, and stated, “President Trump is the party of the working American and at the FTC, we are going to take incredibly seriously the fact that the antitrust laws protect competition in labor markets.”
The creation of this task force indicates some alignment with President Biden’s FTC, which focused on addressing anticompetitive conduct in the labor markets. Notably, in April 2023, the FTC issued a sweeping rule banning most non-compete agreements (though that rule was subsequently blocked). Chairman Ferguson, who was an FTC commissioner at the time, voted against the rule on the grounds that the competition rulemaking overstepped the Commission’s constitutional authority. Despite his opposition to a broad noncompete rule, however, Chairman Ferguson’s remarks in announcing the new task force signal that under his leadership, the FTC will use its case-by-case competition enforcement authority to take a firm stance against overbroad non-compete agreements that suppress competition for workers.
While this announcement signals that the FTC will continue to closely scrutinize non-compete, no-hire, and no-poach agreements, we do not expect the agency to take the view of the prior administration that such provisions are inherently anticompetitive. Instead, Chairman Ferguson’s remarks and previous dissents indicate the FTC may require stronger evidence of anticompetitive effects—beyond the mere existence of one of these provisions—before initiating an enforcement action.
President Biden-Era Merger Guidelines to Stay (for Now)
In a less anticipated move, the antitrust agencies have announced they will continue to review proposed mergers under the DOJ and FTC’s joint 2023 Merger Guidelines. On February 18, 2025, Chairman Ferguson and Acting Assistant AG for the Antitrust Division Omeed Assefi separately announced the President Biden-era guidelines would remain in effect in memos sent to their staff.
Chairman Ferguson’s memo emphasized the importance of stability and predictability across administrations, explaining that “the clear lesson of history is that we should prize stability and disfavor wholesale rescission.”4 Chairman Ferguson also stated that the 2023 Merger Guidelines “[b]y in large…are a restatement of prior iterations of the guidelines, and a reflection of what can be found in case law.”5 This description is somewhat surprising given the significant changes introduced by the 2023 Merger Guidelines, including a greater reliance on structural presumptions and skepticism toward mergers that could improve firm performance.
In his memo to DOJ staff, Acting Assistant AG Assefi cited responses submitted by Assistant AG nominee Slater as part of her confirmation process that “make clear that—should [Slater] be confirmed—the Antitrust Division plans to continue using the 2023 Merger Guidelines.”6 In those responses, Slater expressed agreement with Chairman Ferguson regarding the importance of maintaining stability across administrations and his description of the 2023 Merger Guidelines as largely a restatement of longstanding law.7 Slater expressed no rush to reform the 2023 Merger Guidelines, which many saw as expansive and difficult for businesses to interpret on a practical level. She indicated that the guidelines would only be revised “when time and experience suggest changes are necessary.”8
Although the 2023 Merger Guidelines will remain in effect for the time being, the agencies’ enforcement priorities may alter the way the agencies interpret and apply the guidelines. For instance, despite being a focus of the Merger Guidelines, we do not expect the agencies to dedicate as many resources to non-horizontal mergers where industry participants speculate that the company will engage in an exclusionary course of conduct post-merger. And we note that the agencies may return to efficiently resolving merger matters when structural remedies can resolve competitive concerns. As Slater said in her written responses to the Senate Judiciary Committee, she “expects this Administration will be more open to settlements in merger cases when effective and robust structural remedies can be implemented without excessively burdening the Antitrust Division’s resources.”9
FTC Bound by DOJ’s Interpretations of Law Under Trump’s Latest Executive Order
On February 18, 2025, President Trump issued an executive order that, among other things, prohibits “independent agencies” from advancing interpretations of the law that are inconsistent with the President or Attorney General’s opinion. Under the executive order, the President and Attorney General’s “authoritative interpretation” applies to any matter of law, including “the issuance of regulations, guidance, and positions advanced in litigation.”10 The Executive Order (EO) also requires independent agencies to “submit for review all proposed and final significant regulatory actions” to the White House and Office of Information and Regulatory Affairs (OIRA). This move brings the FTC under the same procedural requirements as the DOJ and keeps with the recent announcement that the Trump Administration will seek to overturn Humphrey’s Executor and end the protection from removal at the President’s discretion that FTC commissioners currently appreciate.
While the future of Humphrey’s Executor will likely play out over several years, we expect some immediate practical implication from President Trump’s EO on independent agencies. First and foremost, there will be closer alignment between the FTC’s enforcement priorities and the President’s policy objectives. In addition, we do not expect to see any splits between the DOJ and the FTC such as we saw in President Trump’s first administration when the two agencies had different views of legal questions at the heart of the FTC’s monopolization lawsuit against Qualcomm.11 However, some practical questions remain. For example, under the new EO, parties in front of the FTC may seek an audience not just with commissioners but also with the DOJ, if they see issues of legal interpretation at the heart of their matters. Additionally, arguments about the broader policy implications of taking action in certain matters may have more force with DOJ or White House officials who oversee a wide variety of legal issues.
[1] Request for Public Comment Regarding Technology Platform Censorship (February 20, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/P251203CensorshipRFI.pdf.
[2] 15 U.S.C. § 45(a)(1).
[3] See Request for Information.
[4] https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-memo-re-merger-guidelines.pdf
[5] Id.
[6] https://www.justice.gov/atr/media/1389861/dl?inline.
[7] Abigail Slater, Responses to Written Questions of Senator Peter Welch for Hearing on ‘Nominations,’ submitted February 17, 2025, available at https://www.judiciary.senate.gov/imo/media/doc/2025-02-12_-_qfr_responses_-_slater.pdf.
[8] Id.
[9] Id.
[10] https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-accountability-for-all-agencies/.
[11] In Federal Trade Commission v. Qualcomm, 969 F.3d 974 (9thCir. 2020), the DOJ filed three statements opposing the FTC’s interpretation of law. Among these was an amicus brief in the Ninth Circuit Court of Appeals in which the DOJ argued that the case ran afoul of well-established antitrust principles.
