Trump FTC Endorses Several Legacy Biden Accomplishments: But Things Won’t Be the Same

Written By John Roberti and Elliot Buckman

Introduction

Antitrust enforcement was a key priority during the Biden administration. One of the administration’s significant accomplishments was the release of new Merger Guidelines, and the Biden antitrust agencies adopted far-reaching enforcement measures such as overhauling Hart-Scott Rodino requirements and targeting employer-side restrictive labor practices. Just before President Biden left office, the FTC and DOJ jointly released the Antitrust Guidelines for Business Practices Affecting Workers,[1] which outlined several previously unchallenged practices that could be subject to antitrust scrutiny. The Biden FTC also targeted noncompete agreements, going so far as to move to ban virtually all noncompete clauses nationwide.[2] The Biden administration frequently examined the impact on labor markets as a distinct product market in merger reviews—a departure from traditional analyses that primarily focused on consumer prices and market competition—underscoring the administration’s commitment to protecting workers.

The Trump administration’s FTC and DOJ have long been anticipated to distinguish themselves from the agencies’ approaches under President Biden. Three recent announcements, however, suggest the differences may not be as stark as expected. As we discuss below, in the last three weeks, FTC Chairman Andrew Ferguson voiced support for the new Hart-Scott-Rodino Act (HSR) filing requirements established by the Biden administration, confirmed that the 2023 Merger Guidelines developed by the Biden administration will remain in effect, and announced a new Task Force to pursue cases designed to prosecute deceptive, unfair, and anticompetitive labor-market practices — a major Biden administration priority. Ultimately, however, we expect the Trump FTC to pursue its own objectives, albeit within the legacy Biden FTC framework. We also believe fewer guidelines will be released and rules issued, as the Trump antitrust leaders will likely develop their antitrust priorities through enforcement rather than rulemaking.

The FTC Chair Endorses the New Hart-Scott Rodino Rules.

On February 10, 2025, the new HSR premerger notification form took effect.[3] Many in the business community and the antitrust bar had complained that the new filing requirements were too onerous, and some thought the Trump Administration might try to curb — or, at a minimum, delay — them. Business groups led by the U.S. Chamber of Commerce sued to enjoin the new filing requirements, and the Chair of the House Subcommittee on Antitrust, Republican Scott Fitzgerald, introduced a Congressional Review Act resolution seeking Congressional disapproval of the new HSR rules.[4]

However, on the very day the rules took effect, Chairman Ferguson endorsed them, writing in a post on X that updates “were long overdue” and “were the product of bipartisan consensus and will allow us to find anticompetitive mergers efficiently, while more quickly getting out of the way of deals that will benefit the American people.”[5]

The new rules require companies to expend more resources to submit HSR filings, including wider searches for responsive documents, more detailed narrative answers about competitive overlaps, and further disclosures about company ownership and structure. The FTC estimates the new requirements will add an average of 68-121 hours to the current filing preparation time.

Despite the added burden, the new filing requirements have benefits. They will provide antitrust agencies with more information about potentially problematic transactions much earlier in the merger process. Therefore, while possibly adding cost and time to the filing process, they will offer the agencies increased flexibility and enhanced enforcement capabilities, attractive developments to FTC leadership across both parties.

DOJ and FTC Reaffirm the Merger Guidelines 

On February 18, 2025, FTC Chairman Ferguson confirmed that the FTC and DOJ’s joint 2023 Merger Guidelines (the “Guidelines”) remain effective and will serve as the framework for future merger review analysis.[6] The Guidelines have been in effect since January 2024, when they were released to update the prior merger guidelines issued in 2010. Key aspects of the Guidelines include a lower market concentration to trigger presumptive illegality, a focus on mergers that eliminate potential competition, and enhanced enforcement against vertical and other non-horizontal mergers. The Guidelines also address challenges to roll-up acquisitions and minority ownership.

Before this announcement, some commentators had expected the Trump administration to roll back the enforcement-friendly Guidelines to make them more favorable to businesses. With the Guidelines remaining in effect, the FTC and DOJ can continue to use them to analyze the legality of mergers. With this said — and while the FTC chair justified the continued use of the Guidelines as a means to provide “stability” — the Guidelines’ application remains unknown, as we expect broad prosecutorial discretion to result in less than predictable outcomes.

FTC Announces a New Task Force to Explore Labor Markets

On February 26, 2025, the FTC announced the formation of a Joint Labor Task Force that will use agency resources to target anticompetitive and deceptive activity in labor markets.[7] The Task Force is charged with investigating matters such as no-poach, wage-fixing, and noncompete agreements, anticompetitive labor market buyer power, deceptive job advertising, and harmful occupational licensing requirements.

Labor enforcement will remain a priority under the Trump FTC, which is unsurprising given that the Republican Party has made substantial inroads with blue-collar workers.  However, the Trump administration may pursue labor market investigations with different policy goals in mind, such as a focus on combatting diversity, equity and inclusion, or labor unions. 

Old Topics and New Priorities

While on its face, the Trump FTC’s continuation of Biden administration policies suggests the new administration will follow in lockstep, we expect substantial deviation from the prior regime. Certainly, facially problematic mergers have already been and will continue to be challenged by the Trump antitrust enforcers, and the still-effective 2023 Merger Guidelines will give the new administration substantial leeway in deeming mergers potentially anticompetitive. However, the administration must also make targeted choices about attacking mergers in its crosshairs. Of note is that the Trump administration is taking steps to substantially reduce federal spending and reduce the size of the federal workforce, with public reports suggesting there will be layoffs at both antitrust agencies. If budgets are reduced, it is reasonable to expect fewer enforcers and, therefore, fewer prosecutions.

One likely scenario is that the new Trump administration will focus its antitrust resources on its highest enforcement policy priorities. One such example is the allegedly anti-competitive activity by Big Tech companies. Another appears in Chairman Ferguson’s memorandum establishing the Labor Task Force, where the Chairman wrote the Task Force will be attacking “[c]ollusion or unlawful coordination on DEI metrics, which may have the effect of diminishing labor competition by excluding certain workers from markets, or students from professional training schools, on the basis of race, sex, or sexual orientation.” By contrast, the Biden administration considered how antitrust could enhance diversity and opportunities among minorities and underprivileged communities.

With more limited resources due to expected layoffs and budget cuts, we also anticipate that the Trump administration will focus on enforcement rather than rules and guidelines. We therefore expect fewer cases but, at least in some areas, continued aggressive enforcement.

Conclusion

The new Trump administration’s antitrust agencies will follow prior administrations in certain traditional respects, such as contesting facially anticompetitive mergers and unlawful collusion. However, buoyed by the flexibility granted by the Biden administration’s enforcement guidelines, the agencies will likely use any available resources to focus on the Trump administration’s core policy goals.

John Roberti and Elliot Buckman
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