The New Administration: Trends in Antitrust Enforcement

Trump’s Picks for the Federal Trade Commission and DOJ Antitrust Division

On January 20, 2025, former FTC Commissioner Andrew Ferguson assumed his new role as FTC Chair. Ferguson, who joined the Commission in April as one of two Republicans at the five-member agency, succeeds former Chair, Democrat Lina Khan. Prior to his appointment to the FTC, Ferguson served as Solicitor General of Virginia and as Chief Counsel to Senator Mitch McConnell in the U.S. Senate Judiciary Committee.

Ferguson is expected to shake up the agency’s enforcement priorities, although the extent of the FTC’s pivot—both in terms of process and enforcement—remains to be seen. While Ferguson’s selection signals less hostility to mergers in general, he (like many prominent Republican lawmakers) has expressed hostility toward certain practices of large technology companies. In a statement before the House Energy and Commerce Committee, Ferguson reinforced that “confronting Big Tech is the fundamental competition question of our day.”

Because of his former status as an acting commissioner, Ferguson assumed the role of FTC Chair on Inauguration Day. However, until the Senate confirms a fifth Commissioner, the Commission remains split 2-2, meaning any enforcement action or significant policy changes will require the support of at least one Democratic commissioner. On January 20, Trump formally nominated a third Republican commissioner, Mark Meador, to fill the expected vacancy. Meador, a veteran of both the FTC and the Department of Justice Antitrust Division (“DOJ”), currently serves as a partner at Kressin Meador LLC, where he specializes in antitrust litigation and policy. For some competition experts, Meador’s nomination suggests that certain aspects of Lina Khan’s ideology are here to stay and that the agency will be more hostile to corporate power during Trump’s second term than in previous Republican administrations.

Inauguration Day also marked Trump’s formal nomination for Assistant Attorney General, Gail Slater. Slater will replace Jonathan Kanter as the head of the DOJ Antitrust Division. Slater has served as an economic advisor to Vice-President J.D. Vance since February 2024, and in 2018 served on the National Economic Council. Prior to these roles, Slater was an attorney with the FTC for over ten years, serving in a variety of positions.

While Slater is expected to continue DOJ’s aggressive stance against Big Tech, her enforcement approach in other industries is less clear.

Looking Forward: Expected Trends in Enforcement in Key Industries

With the FTC and DOJ’s stance towards competition in mind, here’s what we expect to see in a few key industries:

1. Big Tech – Freedom of Speech and Artificial Intelligence
   According to President Trump, Ferguson’s role as FTC Chair will bring an “America First,” pro-innovation approach to enforcement. The first Trump administration investigated, and filed cases against, acquisitions by several large tech companies, and Ferguson’s FTC may continue that trend. In a statement before the FTC, Ferguson urged investigation into “unlawful collusion” between platforms found to be limiting free speech. And he has since vowed that the FTC will “end Big Tech’s vendetta against competition and free speech.” Consistent with his pro-innovation stance, however, Ferguson also has cautioned against overzealous regulation of artificial intelligence, and the extent to which he will continue the FTC’s current efforts remains to be seen. On January 25, 2024, the FTC announced that it issued subpoenas to five companies—Alphabet, Inc., Amazon.com Inc., Anthropic PBC, Microsoft Corp., and Open AI, Inc.—seeking information related to, among other things, the rationale behind these companies’ generative AI investments, an analysis of the transactions’ competitive impact, and the competition for developmental resources such as data.¹ For now, the inquiry remains ongoing, but the FTC’s future commitment to the investigation is unclear. Several months after the FTC announced its inquiry, Ferguson suggested that a comprehensive regulatory response to AI could squelch innovation in the U.S. tech sector.Meador has voiced strong opinions on regulating AI and other emerging technologies that suggest a potentially more active regulatory approach. In an interview with Global Competition Review, Meador rejected the notion that antitrust oversight tends to stifle innovation and stated that “antitrust should absolutely play a role in the development of AI and ensure that those markets remain competitive.”
2. Energy and Natural Resources
   President Biden’s administration prioritized investigating and challenging mergers in the oil and gas industry. In the last year alone, the Federal Trade Commission (FTC) initiated in-depth investigations into at least six major upstream oil and gas mergers and ultimately took action against ExxonMobil’s $64.5 billion acquisition of Pioneer Natural Resources and Chevron’s $53 billion acquisition of Hess Corporation. In both cases, the FTC pursued a novel theory of harm that focused on the actions of individual executives at each target company, rather than structural concentration levels in the industry. The FTC ultimately cleared both deals, subject to orders prohibiting the target companies’ CEOs from taking a seat on their respective buyers’ boards. Under the Trump administration, the FTC is unlikely to continue the Biden Administration practice of testing novel theories of harm, at least in the merger context. For instance, Ferguson filed dissenting statements in the Exxon and Chevron cases arguing that the transactions did not violate Section 7 of the Clayton Act. In his view, although the executives’ conduct may have warranted a separate investigation, in each case, he concluded that there was nothing about the proposed transaction itself that would have substantially lessened competition in violation of Section 7.

Changes Ahead (and Some Continuity)

As the FTC’s future enforcement priorities become more clear, changes to remedies, policy, and objectives will likely evolve with them. For example, we expect the FTC to:

1. Withdraw the Rule Banning Non-Competes
   On April 23, 2024, the FTC issued a final rule that banned non-competes nationwide. Once the Senate confirms the third Republican FTC commissioner, the Commission is expected to withdraw the FTC’s rule restricting employee non-competes, which Ferguson has described as “wildly exceed[ing]” the FTC’s authority to address noncompete agreements.
2. Update the Guidelines for Collaborations Among Competitors
   When the Biden Administration withdrew its Guidelines for Collaborations Among Competitors (“Collaboration Guidelines”) in early December, dissenting FTC Commissioners Ferguson and Holyoak criticized the lack of new guidance and argued that the timing of the withdrawal was improper. The FTC and DOJ could simply reissue the guidelines when the new administration takes office but we expect they will take this as an opportunity to update the Collaboration Guidelines. What form that update takes, and when, may take time to develop.
3. Continued Rejection of Environmental, Social, and Governance Exemptions
   Consistent with the Biden Administration’s rejection of Environmental, Social, and Governance (ESG) exemptions to the antitrust laws,² Ferguson has publicly criticized using competition law to achieve non-competition objectives, stating that “[c]ompetition law should promote market competition alone. We should leave intentional conservation and sustainability to the bodies of law and agencies specially designed to pursue those objectives.” The Trump Administration is likely to look upon ESG-related defenses to competition issues with even greater disdain than did the last administration.
4. Remain Consistent with its Issuance of Second Request Investigations
   Although the Biden Administration initially increased the pace of “second request” (in-depth) merger investigations, Biden enforcers faced headwinds from staff burnout and public criticism of their “yield” (the number of investigations that led to challenges or other relief – this yield rate initially dipped). The FTC and DOJ returned in the last several years to a more traditional second request pace. Ultimately, the Biden administration issued second requests at almost identical rates as under the first Trump administration. Accordingly, we do not expect investigations – as opposed to enforcement – to decrease meaningfully over the next four years.

Conclusion

The next Trump administration’s antitrust agenda likely will contain some of the pro-business flavor—relaxed merger control enforcement, lesser focus on labor markets, and predictable theories of harm—of recent Republican administrations. While the next four years of antitrust enforcement promise some return to traditional tools and theories, the FTC and DOJ likely will remain active enforcers of the law and may continue advancing priorities established during Trump’s first administration, particularly with respect to big tech.

¹Section 6(b) of the FTC Act authorizes the Commission to require entities to file “annual or special . . . reports or answers in writing to specific questions” to provide information about the entity’s “organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals.” 15 U.S.C. Sec. 46(b).

²U.S. Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights, Oversight of Federal Enforcement of the Antitrust Laws (20 September, 2022).