Introduction
After President Trump’s election for a second term, those predicting where federal antitrust enforcement was headed had to contend with internal tensions in the Trump coalition that extend to economic policy more broadly: Will the administration be solicitous of traditional Republican laissez-faire values (i.e., anti-interventionism in antitrust), or will it execute a populist conception of robust government action that leads to aggressive enforcement. We seem to have an early answer: While they situate their views in different rhetorical (and sometimes philosophical) frameworks, on the substance, the new Republican leaders of the Federal Trade Commission (FTC or Commission) and Department of Justice Antitrust Division (DOJ) are acting and talking in ways that differ in most respects only modestly from antitrust agency leadership in the Biden era. Much of the deviations from the Biden era, moreover, concern issues that are a particular focus of the Trump Administration that go beyond antitrust. Although the new leaders depart from their immediate predecessors on some points, they have done little retreating and articulate a vision of muscular antitrust enforcement that in many respects their predecessors could cheer. Indeed, so far, the new antitrust leadership seems more focused on advancing its views regarding active antitrust enforcement within the Trump coalition than on criticizing the agencies’ Biden-era approach.
We discuss below preliminary indications that Trump-era federal antitrust enforcement will not vary dramatically in terms of aggressiveness from Biden-era enforcement and what that means for companies moving forward.
The Dogs That Have Not Barked
One of the most telling early indications about federal antitrust enforcement in the Trump Administration is what the new leaders at the FTC and DOJ have not done. At the start of President Trump’s second term, there was considerable speculation about a significant ideological shift at the FTC and DOJ, with the new leadership revoking guidelines and policies that the antitrust agencies enacted during the Biden Administration. That has not happened.
Key guidelines and policies that the agencies have kept in place (at least so far) include:
- 2023 Merger Guidelines: In February 2025, FTC Chair Andrew Ferguson and DOJ Acting Assistant Attorney General (AAG) Omeed Assefi issued memoranda to FTC and DOJ staff, respectively, instructing them to continue to apply the 2023 Merger Guidelines,1 which took a substantially more interventionist approach to merger enforcement than did the 2010 Horizontal Merger Guidelines and 2020 Vertical Merger Guidelines they replaced.2 In his memorandum to FTC staff, Chair Ferguson made clear it was important for the 2023 Merger Guidelines to remain in effect to ensure “[s]tability across administrations of both parties,” and that the antitrust agencies, businesses and the courts would not benefit from revocation.3
- New HSR Form: The new Hart-Scott-Rodino (HSR) Act form instituted by the FTC and DOJ in 2024, which significantly increases the scope of information merging parties must submit with their notifications, also remains in effect. The FTC’s two Republican commissioners at the time, Melissa Holyoak and Andrew Ferguson, each voted for the new HSR form.4
- FTC Section 5 Statement: The FTC’s November 2022 Section 5 “unfair methods of competition” statement takes an expansive view of antitrust liability under the statute and replaced an earlier statement that the FTC issued in 2015 during the Obama Administration, which took a less sweeping approach.5 The current Commission has yet to rescind the 2022 Section 5 statement.
The new administration’s continuation of the Biden-era aggressive approach to antitrust enforcement is also reflected in the headline cases that the new leadership has continued to pursue and not scaled back, including seeking corporate breakups as remedies. For instance:
- FTC v. Amazon: The FTC sued Amazon, Inc., in September 2023, alleging the online retail company uses anticompetitive and unfair strategies to preserve its monopoly power over rival online sellers.6 Proceedings are ongoing in federal district court in Washington State. In testimony to Congress about the case earlier this month, Chair Ferguson stated that “[i]t is vitally important that the FTC continue to scrutinize digital markets, recognizing the enormous power that these technology companies wield and the scope of their influence on the lives of ordinary Americans.”7
- United States v. Visa: In September 2024, DOJ sued Visa, Inc., alleging the credit card company monopolized US debt markets, including by entering into exclusive contracts with merchants and banks, in violation of the Sherman Act.8 Litigation is ongoing in the US District Court for the Southern District of New York.
- United States v. Google (search case): DOJ sued Google in 2020, alleging the company had illegally monopolized online search markets.9 In August 2024, a judge in the US District Court for the District of Columbia found in DOJ’s favor, ruling that Google violated Section 2 of the Sherman Act by monopolizing general search and general search text advertising markets. The parties are currently litigating the remedies phase of the proceeding, with DOJ seeking an order that includes requiring Google to divest its Chrome browser. The case was filed during the first Trump Administration and continued during the Biden Administration. The current Trump Administration has maintained the position that a divestiture of Chrome is a necessary remedy.
- United States v. Google (adtech case): In January 2023, DOJ filed a separate case against Google in the Eastern District of Virginia, alleging that Google monopolized digital advertising technologies.10 DOJ prevailed in the liability phase of that proceeding in April 2025.
In May 2025, however, the Commission voted 3-0 to dismiss its complaint against PepsiCo.11 The complaint, which the agency filed three days before President Trump’s second inauguration, alleged the company had engaged in illegal price discrimination in violation of the Robinson-Patman Act.
Recent Statements From DOJ and FTC Officials
Recent speeches by DOJ AAG Gail Slater at Notre Dame University,12 FTC Commissioner Mark Meador at George Washington University13 and FTC Chair Andrew Ferguson at ICN2514 shed substantial light on their aggressive enforcement philosophy and efforts to prevail in Republican internal debates.
Slater took pains to harmonize DOJ’s aggressive posture toward antitrust enforcement with the Republican party’s leap toward populism under President Trump’s leadership, labeling her agenda “America First Antitrust.” In that regard, she argued that “monopolies are driving a Republican realignment away from big business and—under President Trump’s leadership—toward the working class that is reconnecting the party with its roots, recognizing antitrust as a critical tool for protecting individual liberty.”15 In strikingly blunt criticism of the Chicago School, which has significantly influenced Republican antitrust philosophy over the past several decades, Slater said that “one cannot wish away monopolies and cartels with false economic theories of self-correction.”16
Commissioner Meador focused on “antitrust myth busting” during his recent speech at George Washington University. Most of the “myths” he identified, though sometimes stylized, are associated with anti-interventionist antitrust thinkers. He said, for instance, that vertical integration does not “guarantee competitive outcomes” and that such integration can lead to “moat building” by raising switching costs or locking out rivals.17 Meador also said that innovation is too often used as “a sweeping defense that excuses exclusionary conduct.”18 He concluded the speech by quoting Treasury Secretary Scott Bessent as saying, “MAGA doesn’t stand for ‘Make M&A Great Again.’”19 Meador also strongly rejected assertions that aggressive antitrust enforcement in the Trump era is largely about attacking alleged Big Tech content control, stating that “God willing,” the FTC will enforce the antitrust laws not just against Big Tech but in every industry.20
Commissioner Meador’s recent article, “Antitrust Policy for the Conservative,” an abridged version of which he delivered as a speech at an event hosted by The Conservative Partnership Institute and American Compass, similarly takes on laissez-faire antitrust policy.21 He draws a sharp distinction between his view of “conservative” philosophy and “libertarian” approaches, again focusing on tensions within the Republican party. Meador argues that “the temptation of conservatives to acquiesce “to libertarian economic policy, and to eschew the government’s necessary role in preserving free markets, has been especially strong in antitrust law.”22 He contends that Republicans must embrace an assertive approach to antitrust enforcement, stating that Republicans should be less resistant to the concept that “big is bad” and that the “size and the power that often accompanies [bigness] do in fact warrant greater scrutiny and concern.”23
Like Slater, Meador devotes substantial energy to advocating for interventionism in the intra-Republican debate regarding antitrust’s proper role. He posits that robust antitrust enforcement is part of conservatives’ “intellectual heritage,” citing prominent 19th- and 20th-century pro-enforcement Republicans, including Senator John Sherman (whom the Sherman Act is named after) and Presidents Theodore Roosevelt and William Howard Taft24 Drawing on his background as a University of Chicago philosophy graduate, he finds support for his view regarding the role for antitrust in political thinkers like Russell Kirk.
Regarding antitrust policy particulars, Meador criticizes Robert Bork’s “consumer welfare” approach—which Meador characterizes as actually a “total welfare” standard that accounts for benefits or harms to all market participants (including suppliers), not just consumers.25 Instead, Meador advocates for a “consumer surplus” standard, which would evaluate the effects only on consumers in evaluating alleged anticompetitive conduct, including as “consumers” all persons on the opposite side of the transaction as the accused antitrust malefactor, e.g., employees. Meador argues that focusing antitrust analysis on consumer surplus avoids forcing courts to “weigh social, political, and economic equities among competing constituencies without any grounding principles or guidance.”26 Other commentators have made similar points.27 And, bringing political philosophy into his argument, Meador argues that “[t]o give such power to the judicial branch would create the very consolidation of political power that the Framers sought to prevent.”28 Finally, like Slater, Meador departs sharply from the Chicago School, arguing that antitrust should “prioritize[] avoiding false negatives over [avoiding] false positives[,]” observing that, in the merger context, the Clayton Act’s language that the effect of the merger “may be to substantially lessen competition or tend to create a monopoly” supports his view.29 Meador’s argument that false negatives are more damaging than false positives for antitrust enforcement is directly contrary to what Judge Frank Easterbrook, a leader of the Chicago School, argued in an iconic 1984 article.30
FTC Chair Ferguson echoed many of AAG Slater’s and Commissioner Meador’s points during a recent keynote speech at ICN25. He described how the FTC intends to vigorously enforce the antitrust laws, discussing the administration’s general preference for after-the-fact antitrust enforcement over up-front regulations, consistent with Commissioner Meador’s earlier statement that “antitrust is actually a deregulatory tool” because it “maintain[s] [] market conditions that obviate the need for regulation by promoting fair competition.”31 Chair Ferguson went on to state that Europe’s focus on regulation has led to stagnation in its markets.32 He argued that overregulation of artificial intelligence (AI) could “squelch innovation, further entrench Big Tech incumbents, and perhaps even ensure that AI innovators will move to jurisdictions friendlier to them but perhaps hostile to our nations and our shared interests.”33
The positions that leading officials at the FTC and DOJ have taken are in line with some Republican politicians’ praise for Biden-era antitrust enforcement, paradoxical as it may seem at first blush. For instance, Vice President JD Vance commended the aggressive agenda of former FTC Chair Lina Khan, particularly her enforcement against Big Tech.34 Other Republicans, including former Congressman Matt Gaetz and Senator Josh Hawley, have similarly praised Khan’s agenda.35
Dividing Line
To be clear, there remain ideological differences between the current regime and antitrust leadership during the Biden Administration. Commissioner Meador remarked that “modern progressives” hold a “vision of antitrust law [] closer to a ‘public interest standard’ . . . [that] would give to unelected lifetime-appointed judges oversight of the entire economy.”36 And unlike their predecessors, conservative leaders at the FTC have made clear they are staunchly opposed to the agency’s promulgating substantive rules regarding unfair methods of competition, including the agency’s 2024 rule to ban non-compete clauses, though the Commission has yet to rescind the non-compete rule.37
That said, the new Republican leadership’s policy shifts have largely concerned process. Those include:
- Procedural delay during merger reviews: FTC Chair Andrew Ferguson spoke critically of what he described as the prior administration’s “sub-regulatory means to hold up mergers without actually taking people to court and hope that they [mergers] die on the vine,” saying, “That’s over.”38 Moving forward, businesses can expect that the new agency regimes will pursue extended merger investigations only when they have a clear and articulable antitrust theory of harm.
- Early termination of the initial HSR waiting period: The FTC recently announced a return to granting early termination of the initial HSR waiting period for mergers that clearly raise no antitrust concerns.39 The FTC had suspended early terminations in February 2021, requiring all deals to observe the full 30-day initial waiting period.40
- Merger consent decrees: The FTC and DOJ recently announced they are open to resolving competitive concerns about mergers through consent decrees. DOJ AAG Gail Slater said DOJ will be “more open to consent decrees in particular cases.”41 By contrast, DOJ entered only one consent decree with merging parties during the Biden Administration, and that was in the midst of a litigation.42 Similarly, in recent congressional testimony, Chair Ferguson stated that “the Commission is open to settlement offers that eliminate the possibility that the proposed acquisition could cause harm to market participants. Here too the Commission will rely on its experience in fashioning effective remedies and will be clear about what is expected in any consent order.”43 On May 28, 2025, the FTC announced its first proposed merger consent decree of the Trump-era, which would require merging parties Synopsys, Inc. and Ansys, Inc. to divest Synopsys’ optical software tools and photonic software tools and Ansys’ power consumption analysis tool to Keysight Technologies, Inc. or another acquirer approved by the FTC.44 The following week, DOJ announced that it had entered into a consent decree with Keysight Technologies, Inc. and Spirent Communications PLC, which requires the parties to divest Spirent’s high-speed ethernet, network security, and channel emulation businesses to Viavi Solutions, Inc. or another purchaser approved by DOJ.45 (WilmerHale represents the divestiture buyer in the Synopsys-Ansys transaction and the acquirer in the Keysight-Spirent transaction.)
The Road Ahead
Those who thought that antitrust enforcement in the Trump Administration might take a turn toward anti-interventionism are so far being proved wrong. Recent FTC and DOJ actions and leadership statements suggest that the federal antitrust agencies appear poised to enforce the antitrust laws across the economy with a robustness that rivals—or could conceivably even exceed—antitrust enforcement during the Biden Administration. Businesses that are contemplating transactions or other conduct that could receive scrutiny from the US antitrust agencies are well advised to bear this in mind.
At the same time, the new antitrust agency leadership has emphasized a few areas of particular focus. Leaders at both the FTC and DOJ have especially emphasized their intentions to aggressively enforce the antitrust laws in the tech, healthcare and labor sectors.46 Officials also are focused on using the antitrust laws to pursue President Trump’s agenda. For instance, the FTC recently launched a Joint Labor Task Force, designed to prosecute unfair labor market practices, including alleged unlawful coordination on DEI metrics (which appears to be an especially intense Trump Administration focus).47 And the FTC has initiated a broad investigation into the decisions of certain advertisers not to advertise on X.
It remains unclear how the new administration’s aggressive antitrust agenda squares with its calls to reduce the workforce across the federal government, including at the antitrust agencies, which have already experienced job cuts and reported difficulties with employee morale. Chair Ferguson testified to Congress on May 15, 2025, that the FTC has shed 94 employees since the beginning of Fiscal Year 2025 and plans to further reduce staff to the lowest level it has been in the last 10 years.48
Footnotes
