On February 18, Federal Trade Commission (FTC) Chairman Andrew Ferguson announced the agency’s commitment to the Biden-era merger guidelines, which the FTC and Department of Justice (DOJ) jointly issued in 2023.

The 2023 merger guidelines constitute the legal and economic framework for the antitrust agencies’ merger review analysis. In a parallel move, Acting Assistant Attorney General for the Antitrust Division of the DOJ Omeed Assefi announced the same intention to continue following the 2023 merger guidelines’ framework.

Both agency heads echoed the sentiment that the 2023 merger guidelines are “not perfect,” but that any future revisions would be completed in a transparent and thoughtful manner.

Michelle Mantine, partner and leader of the Antitrust and Competition group at global law firm Reed Smith, and Courtney Bedell Averbach, also a partner in Reed Smith’s Antitrust and Competition team, addressed what this surprising commitment to Biden-era merger guidelines mean for businesses and their in-house counsel as well as to the overall movement for antitrust regulation under President Trump.

How do the 2023 merger guidelines influence the FTC and DOJ’s merger review process and what are the immediate takeaways for businesses and their in-house counsel?

The merger guidelines provide principles that the FTC and DOJ will rely on to answer the questions:

• How do firms in this industry compete? and
• Does the merger threaten to substantially lessen competition or tend to create a monopoly?

The Guidelines are not themselves binding law, but they describe the agencies’ review process and areas of inquiry in determining a potential merger’s compliance with federal antitrust laws. While it is wise to expect the unexpected in the second Trump Administration, the immediate takeaways of the agencies’ commitment to keep the 2023 merger guidelines intact are that they are prioritizing stability in antitrust enforcement – at least for the time being – and that the type of ordinary course antitrust enforcement that typically continues from administration to administration is unlikely to significantly recede in 2025 and beyond.

What are some areas of uncertainty in how the agencies will apply the 2023 merger guidelines?

The 2023 merger guidelines were more expansive than predecessor guidelines in several key ways, including by:

• treating transactions between horizontal competitors with a combined market share of 30% or more as presumptively unlawful at the investigative stage;
• formally identifying mergers’ effects on labor markets as an area of inquiry in merger investigations; and
• highlighting potential harm to competition from roll-up acquisition strategies by private equity firms and other investors.

We now know that the merger guidelines will remain in effect in the new administration, but it remains to be seen whether and to what extent the agencies will rely on some of the guidelines’ more expansive provisions. It is possible that enforcers will direct investigative resources toward more traditional investigations under provisions that do not reflect a meaningful departure from the previous guidelines dating back to 2010 and 2020. 

In particular, are there any uncertainties as to enforcement of the 2023 merger guidelines’ provisions regarding roll-up acquisitions?

With respect to the 2023 merger guidelines’ directive to assess the cumulative impact of multiple acquisitions in the same or related business lines, antitrust enforcers under Trump 2.0 are likely to be less critical of a merger solely because it involves private equity on one or both sides.

Chairman Ferguson has distanced himself from rhetoric that “single[s] out private equity for special treatment,” saying that antitrust analysis of serial acquisitions must be the same whether the investor is a private equity firm, an individual, or an institutional investor.

Recent comments by FTC Commissioner Melissa Holyoak, also a Republican, similarly suggest a friendlier attitude toward serial acquirers, such as private equity firms. Commissioner Holyoak suggested that the FTC should reexamine a 2021 policy directive that gave the FTC wide latitude to include “prior approval” provisions in settlement agreements.

Such provisions require that parties to proposed unlawful mergers give notice of and receive prior approval for future transactions, including transactions that fall under HSR thresholds, for periods of up to ten years or longer. Through this mechanism, the FTC gains the ability to review small transactions, such as PE roll-ups, that would not otherwise be subject to mandatory premerger notification requirements.

While Commissioner Holyoak’s comments were made during an interview and do not (as of now) reflect official FTC policy, they echo Chairman Ferguson’s stated unwillingness to treat private equity different than any other type of investor.  

How might merging parties and their counsel benefit from the continuation of the 2023 merger guidelines? What are the pros and cons to the guidelines?

Though some businesses and investors who were hoping for a more lax enforcement environment under President Trump may be disappointed that the agencies are electing to uphold the guidelines, there are benefits in the form of enhanced clarity and predictability. The guidelines provide more detailed criteria for evaluating mergers, which can help businesses better understand the regulatory landscape and plan their transactions accordingly.

By outlining specific factors and methodologies, the guidelines increase transparency in the merger review process, making it easier for companies to anticipate potential regulatory challenges. The guidelines also focus on modern market dynamics, addressing the unique characteristics of digital and technology markets and the importance of fostering innovation. The 2023 guidelines are arguably better suited evaluating competition in changing market conditions than the predecessor guidelines were.

At the same time, the guidelines pose challenges in terms of regulatory burden and uncertainty in how some of the more expansive provisions will be applied going forward (as discussed above). These challenges will almost certainly be felt more acutely by smaller, less resourced businesses, as well as frequent acquirers.

In what ways could the second Trump administration affect future decisions related to antitrust law and merger reviews? Does this signal any other trends in antitrust under President Trump?

Conventional wisdom says that the second Trump administration will affect future decisions related to antitrust law and merger reviews through its agency appointments: Commissioner Ferguson at the FTC, and Gail Slater, whose nomination to head antitrust enforcement at the DOJ is pending. Both are mainstays of federal antitrust enforcement and fall within the conservative mainstream (unlike some of President Trump’s less orthodox appointments to head up other agencies).

Slater has expressed a desire to maintain the DOJ’s focus on Big Tech, and Ferguson is bringing a Trump-era bend to FTC enforcement priorities (e.g., by announcing that an FTC labor task force will seek to root out unlawful collusion on DEI employment metrics, among other things).

More nebulous are the potential impacts of other figures in the Trump universe. For example, Elon Musk voiced support, in response to a post on X by Republican Senator Mike Lee, of a bill that would consolidate antitrust enforcement at the DOJ and remove the FTC’s authority to enforce competition laws. Enforcement priorities may also be impacted by resource constraints and staffing in light of the administration’s shakeup of agency funding and the federal workforce.

How do the FTC and DOJ’s joint commitment to the 2023 merger guidelines reflect a broader trend in antitrust policy?

Though there is a public perception that Republican administrations tend to be more “business friendly” in antitrust enforcement than Democratic administrations, the reality is that run-of-the-mill enforcement tends to span administrations. Bipartisan support for antitrust enforcement in Washington also has surged in unlikely corners over the last several years, with figures like now-Vice President JD Vance having praised in 2024 Biden-era FTC Commissioner Lina Khan’s efforts to build a competitive marketplace, especially in technology markets.

One of the most notable antitrust trends during the first Trump Administration was heightened scrutiny of major technology companies driven by concerns of monopolistic practices, market dominance, and the impact on consumer choice and innovation, and we expect this to continue into his second term.

Our view is that the FTC and DOJ’s joint commitment to the 2023 merger guidelines reflects that a robust, bipartisan approach to antitrust regulation is here to stay, both at the federal and state levels, though we may see some adjustments in enforcement priorities going forward.