As predicted, antitrust merger enforcement under the second Trump Administration exhibits a return to a more restrained approach at both the Federal Trade Commission and the Antitrust Division of the Department of Justice. Most refreshingly, the agencies appear committed to good faith engagement with merging parties. The FTC lifted its four-year “temporary” suspension of early terminations of the HSR waiting period, and a senior Division official recently stated that the DOJ will “not send ‘scarlet’ letters warning parties that they ‘close at their own risk’”—a practice adopted under the prior administration. In recent orders, the FTC highlighted the importance of Commission staff and merging parties working together in “good faith” during merger reviews. In public statements, both the FTC and DOJ have eschewed “turning the HSR review into an extortion racket.” These commitments reflect a welcome return to established patterns of antitrust practice, where proactive engagement with regulators can lead to efficient outcomes for lawful transactions. Among the most notable takeaways from the past six months:
- Settlements are back on the table. Both DOJ and FTC leadership have publicly endorsed negotiated remedies as a vital tool for effective merger enforcement, and have shown a willingness to accept creative solutions to remediate competition concerns. The DOJ has entered into three such settlement agreements—Keysight/Spirent (discussed here), Safran/Raytheon, and HPE/Juniper Networks. All three involved structural remedies. In HPE/Juniper, which resolved one of the two litigated merger challenges initiated under the new administration, the DOJ agreed to allow the parties to find a divestiture buyer within six months of the settlement date—a notable deviation from the agencies’ longstanding requirement for upfront divestiture buyers.The FTC has similarly agreed to divestiture remedies to resolve two merger investigations—Synopsys/Ansys
(discussed here) and Alimentation Couche-Tard/Giant Eagle. In Omnicom/Interpublic Group, the FTC entered into a settlement requiring only a behavioral remedy, which prohibits Omnicom from engaging in collusive or coordinated activity to direct advertising away from media publishers “based on political or ideological viewpoints or political content.” - The energy sector and private equity are no longer on the hot seat. A spate of large transactions in the upstream oil and gas market during the Biden Administration resulted in an FTC effort to investigate, delay and challenge exploration and production mergers across the board. While most of those transactions ultimately closed with no remedies, for two of the largest upstream energy deals—Chevron/Hess and ExxonMobil/Pioneer—a divided FTC voted to approve unprecedented consent decrees that barred the targets’ CEOs from serving on the buyers’ boards of directors, despite no finding of merger-specific harm or lessening of competition. Now-Chairman Ferguson and Commissioner Holyoak vehemently dissented, arguing the consent decrees lacked any legal basis under the Clayton Act. As noted in the Ferguson dissent to the Chevron/Hess order, “[t]he Commission leveraged its Hart-Scott-Rodino Act authority by threatening to hold up Chevron and Hess’s $53 billion merger even though the lack of a plausible Section 7 theory had long been obvious.” Chairman Ferguson accused the Commission of running a “pay for peace racket,” based on “one of the most ludicrous theories of harm in its merger-enforcement history.” This month, a unanimous Commission vacated these orders, finding that their restrictions would “damage the rule of law and undermine the Commission’s credibility.” Notably, the prior administration’s investigative efforts in upstream oil and gas yielded no divestitures and no blocked deals. Even the FTC’s administrative complaints asserted a global relevant market for the production and marketing of crude oil, and the recent vacating orders make clear that “the Commission had no reason to believe the law had been violated in a market as unconcentrated as the oil market.”The Biden Administration also expressed its distaste for transactions involving private equity buyers, focusing on roll-up strategies and interlocking directorates in ways that called into question core private equity business strategies. The current administration has removed private equity from its crosshairs. In a concurring statement in connection with a settlement with Welsh, Carson, Anderson & Stowe, now-Chairman Ferguson called out the Biden Administration’s “antipathy toward private equity,” and noted there was “no reason for the Commission to single out private equity for special treatment.”
- The administration continues to endorse an expansive scope of the antitrust laws. The current administration has continued to endorse many of the substantive views of the Biden Administration. For example, Chairman Ferguson announced that the FTC would maintain the 2023 Merger Guidelines as its framework for substantive merger review. As we previously discussed, the 2023 Guidelines adopted lower concentration thresholds at which the agencies will presume a transaction violates the antitrust laws, and memorialized more expansive theories of harm than the prior 2010 Guidelines. The FTC also implemented the new, more burdensome HSR Form despite a pending challenge from the U.S. Chamber of Commerce. Chairman Ferguson has endorsed the new Form as a “win-win for all parties.”Both agencies also have active merger litigation. The DOJ continues to pursue the UnitedHealth/Amedisys and American Express GBT/CWT Holdings challenges brought by the prior administration. In March, the FTC sued to block GTCR’s proposed acquisition of Surmodics, citing favorably to the 2023 Merger Guidelines in support of its allegation that the transaction is “presumptively unlawful.”
- Big Tech and healthcare remain priorities. The focus on Big Tech remains a throughline connecting the Trump and Biden Administrations. As we previously discussed, the DOJ scored a significant victory in its case against Google’s digital advertising business, and the FTC continues to litigate the Meta antitrust case, among other ongoing Big Tech investigations. With respect to healthcare, President Trump recently issued an Executive Order tasking the FTC and DOJ to issue a report “with recommendations to reduce anti-competitive behavior from pharmaceutical manufacturers.” Two of the agencies’ three pending merger litigations involve the healthcare sector.
- The FTC and DOJ are closely aligned with the administration’s policy agenda. As with other federal agencies, President Trump has taken action to more directly supervise and align the DOJ’s and FTC’s activities with his policy priorities. In that context, in March President Trump fired the two Democratic Commissioners on the basis that their “continued service on the F.T.C. is inconsistent with [his] administration’s priorities.” Former Commissioner Slaughter challenged that action in federal court, and the case will likely be appealed up to the U.S. Supreme Court. Regardless of the outcome, we expect that antitrust policy, including enforcement decisions, will continue to be informed by the Trump Administration’s broader agenda.
- State attorney general involvement in antitrust merger enforcement is growing. State attorneys general across the political spectrum are increasingly focused on antitrust merger enforcement. Furthering this trend, Washington and Colorado became the first states to adopt universal premerger notification requirements, which require transacting parties meeting relevant thresholds to submit their HSR Forms to the state attorneys general at the same time they file with the FTC and DOJ. Other states and the District of Columbia are considering similar legislation, and the New York and California legislatures are debating new laws that would apply stricter substantive antitrust standards to merger reviews. This spate of state direct notification legislation will deepen state involvement in merger reviews going forward.
The administration’s first six months brought many welcome developments for the agencies’ merger enforcement policies, with a prospect of increased engagement and procedural fairness. Because transacting parties must still prepare for close scrutiny from regulators, thoughtful planning and early engagement with counsel and regulators remain dealmakers’ best strategies for navigating the regulatory landscape.
This post comes to us from Wachtell, Lipton, Rosen & Katz. It is based on the firm’s memorandum, “Antitrust Insights from the Administration’s First Six Months,” dated July 28, 2025.