After 100 days, the second Trump administration is signaling an antitrust enforcement agenda that favors robust case-by-case enforcement rather than ex ante regulations. Gail Slater, confirmed in March as Assistant Attorney General (AAG) for the Antitrust Division of the Department of Justice (DOJ), said that enforcement will concentrate on “pocketbook issues” including “housing, healthcare, groceries, transportation, insurance, entertainment, and similar markets that directly impact” American consumers and workers. Andrew Ferguson, new chair of the Federal Trade Commission (FTC), echoed this sentiment, emphasizing the need to protect American consumers and workers from anticompetitive conduct and mergers that create or strengthen monopolies.
Mergers and acquisitions
The Biden administration emphasized merger review, and it will likely remain a priority in the Trump administration, continuing under many of the same rules and guidelines.
New Hart-Scott-Rodino (HSR) rules issued at the end of the Biden administration, went into effect on February 10, 2025, and require more documents and detailed information for HSR filings. Chair Ferguson and AAG Slater support the rules. The rules increase the amount of time and effort required to complete HSR filings, but agency officials suggest that the more detailed information in filings allows them to evaluate competitive overlaps, if any, more quickly within the initial HSR waiting period, potentially avoiding some second requests. And, after it was paused for nearly four years, early termination of the HSR waiting period is again being granted when parties request early termination in their HSR filings, and the proposed transaction does not raise competition concerns.
Emphasizing stability, the FTC and DOJ say they will continue to use the 2023 Merger Guidelines, which are significantly different from prior guidelines, as a framework for merger-review analysis and investigations. The following principles and areas of focus will likely drive merger enforcement:
MARKET CONCENTRATION
Under the Merger Guidelines, any horizontal merger resulting in a combined firm with more than 30% market share and a small increase in market concentration is presumptively anticompetitive, even if one merging party has only a small market share and the market is otherwise fragmented with multiple competitors. The agencies continue to focus on market share analysis when evaluating strategic acquisitions, as evidenced by DOJ’s recent challenge of a deal involving what DOJ characterized as the second- and third-largest providers of enterprise-grade wireless local area network (WLAN) solutions, commanding more than 70% of the market. The FTC also recently sued to block an acquisition of a medical device coating company based on the FTC’s allegation that the combined company would control more than 50% of the outsourced market for hydrophilic coatings for medical devices.
VERTICAL MERGERS
Vertical mergers will continue to receive increased scrutiny when they might foreclose competition by limiting rivals’ access to essential inputs or customers. Agency officials have also expressed concern about vertical mergers that result in the acquiring firm gaining or increasing access to competitively sensitive information or when they deter rivals from investing in the market. Agency officials have highlighted the potential harms of vertical integration in various industries, including healthcare and technology, even when they do not result in immediate price increases.
SERIAL ACQUISITIONS
Multiple acquisitions in the same or related business lines will continue to be scrutinized, especially in healthcare, technology, and consumer staples. Private equity (PE) buyers, a focus of the Biden administration, are not being singled out. Instead, the agencies suggest they will treat PE buyers like strategic buyers, focusing on market share analysis when there is a pattern or strategy of serial acquisitions.
In recent public comments, Chair Ferguson and AAG Slaughter expressed willingness to consider consent decrees with structural remedies, though both stressed they would only accept consent proposals when they are confident the fix will work.
Conduct cases
AAG Slater and Chair Ferguson emphasize that price is not the only metric of antitrust harm, citing quality, output, innovation, impact on workers, and even free speech as other considerations. The agencies say they will target conduct that suppresses innovation, blocks small-business entry, or erodes worker bargaining power. Areas of focus include:
BIG TECH
Both AAG Slater and Chair Ferguson express a continuing focus on Big Tech, with investigations and enforcement actions focusing on monopolistic practices, including self-preferencing by large digital platforms that reduce competition and innovation when consumers have difficulty leaving a platform after being invited in. For example, after a US District Court concluded that Google unlawfully maintains monopoly power in general search services and search text ads, the DOJ continues to argue that Google must divest its web browser, Chrome, and end exclusive distribution agreements with phone makers.
ARTIFICIAL INTELLIGENCE (“AI”)
So far, the agencies are rejecting calls for special treatment or regulatory exemptions for AI companies and platforms based on arguments that the US government needs to support US AI companies to ensure they can compete internationally.
PRICING ALGORITHMS
DOJ continues to pursue cases involving the use of pricing algorithms when competitors feed competitively sensitive data, especially pricing information, into a common pricing engine. DOJ continues to litigate against RealPage, Inc., with respect to algorithmic pricing software for apartments. DOJ also recently filed a Statement of Interest in a healthcare algorithmic pricing case, arguing that the use of a common pricing algorithm can constitute an antitrust violation, even if competitors do not always use the algorithm in the same way and even if any exchange of competitively sensitive information in connection with the algorithm is through an intermediary.
LABOR
Agency officials stated that they would continue to pursue cases involving no-poach, non-solicitation, no-hire, and wage-fixing agreements for workers characterized as more vulnerable in lower- and middle-income brackets. In February, the FTC announced the formation of a Joint Labor Task Force, intended to prioritize investigations and prosecutions of anticompetitive labor market conduct, including “no-poach, non-solicitation, or no-hire agreements, noncompete agreements, wage-fixing agreements, deceptive job advertising such as misleading earnings claims, deceptive business opportunities, misleading franchise offerings, and collusion or unlawful coordination on DEI employment metrics.” And in March, the DOJ secured a jury verdict convicting a home health agency executive for participating in a conspiracy to fix wages for home healthcare nurses in Las Vegas, Nevada.
PRESCRIPTION DRUGS
In an executive order issued in April, President Trump directed the Secretary of Health and Human Services to take a number of actions, including conducting joint public listening sessions with DOJ and FTC personnel and issuing a report and recommendations to reduce “anti-competitive behavior from pharmaceutical manufacturers” within 180 days.
GOVERNMENT PROCUREMENT
The Procurement Collusion Strike Force (PCSF), which was formed in the first Trump administration and is led by DOJ’s Antitrust Division, recently reaffirmed its commitment to ensuring a competitive bidding process for contracts across the government, including public schools, municipal infrastructure projects, and especially for the Department of Defense and national security.
TARIFF-RELATED PRICING CHANGES
Trade policy is another lens through which the agencies will view competition. DOJ officials are alert to the risk that tariffs might reduce the number of competitors for certain products and be used as a pretext for pricing coordination or supply restrictions. Sectors shielded from import competition should expect heightened monitoring.
Targeting government regulations
In early April, President Trump issued an executive order intended to reduce purportedly anticompetitive regulatory barriers, instructing agencies to identify regulations that should be rescinded or modified because of their anticompetitive effects. Consistent with that executive order, the DOJ also launched an Anticompetitive Regulations Task Force to identify laws and regulations that may create unnecessary barriers to competition, with a particular emphasis on housing, transportation, food and agriculture, healthcare, and energy. Similarly, the FTC launched a public inquiry seeking comments on how federal regulations harm or may harm competition. Both the DOJ and FTC are seeking public comments until May 27, 2025.
Challenging FTC independence
In February, the DOJ stated that it would stop defending the constitutionality of statutory protections that prevent the president from removing members of independent agencies, including the FTC. Chair Ferguson publicly supported this change in position. Since then, President Trump removed two Democratic FTC commissioners without cause, who are now challenging their removal in court. In an executive order issued in February, President Trump also directed independent agencies, including the FTC, to clear rules through the White House, underscoring a willingness to intervene directly. In early April, Chair Ferguson suggested he would obey lawful orders from President Trump to drop or pursue antitrust cases.
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