What will antitrust enforcement look like under a second Trump presidency? While much remains uncertain, particularly regarding key appointments to the enforcement agencies, historical trends and policy priorities offer important clues.
We anticipate a return to more traditional enforcement approaches, with notable departures from the ambitious reforms pursued by the Biden administration. However, Biden’s reform agenda will likely continue to persist in the background and private and class action litigation as well as actions initiated by Democratic State Attorneys General.
A Return to Traditional Antitrust Enforcement?
The Biden administration, under FTC Chair Lina Khan and DOJ Assistant Attorney General for Antitrust Jonathan Kanter, sought to revolutionize antitrust enforcement in the U.S. Their approach aimed to:
- Expand protections for employees and consumers.
- Move away from the “consumer welfare standard” rooted in neoclassical economics or Chicago School economics, which historically permitted most mergers and cartels.
- Adopt a holistic enforcement model reminiscent of antitrust principles from the first half of the twentieth century.
This ambitious agenda faced resistance and gained limited or possibly no measurable success within Biden’s single term. A second Trump administration would likely pull back from these efforts, emphasizing predictability and aligning more closely with the enforcement norms of prior Republican administrations.
However, the revolutionary approach to antitrust enforcement won’t vanish entirely. European and Asian competition authorities, which often set global benchmarks, are pursuing similar strategies, ensuring these ideas remain influential. Whether the Biden/Khan/Kanter reforms will be seen as a failed experiment or the first step in a long journey remains an open question—one that may take decades to answer.
Key Shifts in Enforcement Priorities
Criminal Enforcement: Focus on Core Cartels
A second Trump administration would likely maintain traditional criminal cartel enforcement, focusing on clear cases of price fixing, output restrictions, bid rigging, and other core cartel conduct. Employer-related cartels, such as labor price-fixing and no-poach agreements, would see a significant shift, however. Criminal investigations and prosecutions of cartel behavior in labor markets would likely decrease, reverting to civil enforcement except in cases with overwhelming evidence.
Criminal prosecutions of other cartel behavior would largely remain as they have been since the 1990s. The hesitancy to prosecute technology-related cartels criminally, like the booksellers cartel will regain a foothold, but the DOJ Antitrust Division will not otherwise hesitate to prosecute criminally traditional core cartel agreements.
The DOJ Antitrust Division would continue relying on its Corporate Leniency Policy, which encourages companies to self-report cartel activity to generate criminal cases. As a result, the premium to conduct meaningful compliance programs and due diligence, particularly when private equity roll-ups are seen in the industry, will remain salient in the second Trump Administration. In this light, enforcement agencies’ guidance regarding compliance programs and obtaining corporate leniency – either formally or informally in speeches – will not be withdrawn.
Merger Guidelines and Enforcement
Under Biden, the DOJ introduced the 2023 Merger Guidelines reflecting a more aggressive stance, a return to earlier enforcement priorities from the first half of the twentieth century, such as protecting labor, and a reduced influence of neoclassical or Chicago School economics. A second Trump administration would likely:
- Withdraw these guidelines and initiate discussions on drafting new ones, though these efforts might stall due to conflicting policy priorities.
- Return to merger assessments rooted in neoclassical economics, focusing on whether post-merger prices might increase or output might decline.
The FTC’s approach may depend on political dynamics. A Republican-led Congress could constrain its budget, pushing it toward a more traditional enforcement path. Overall, businesses can expect merger reviews to be less burdensome and more predictable. As discussed below, whether the FTC will exist in its current rulemaking role is an open question.
Will ESG Policies Face Scrutiny?
Environmental, Social, and Governance (ESG) practices and policies by private entities have become a flashpoint in political debates. While some in the MAGA-GOP sphere of influence have speculated about antitrust challenges to private ESG practices and policies, such cases are unlikely to be successful – if litigated rather than settled – due to their weak footing in traditional antitrust principles and current case law. A successful antitrust attack on private ESG practices and policies will require the abandonment of neoclassical economics and the Chicago School that have been the mainstay of Republican antitrust enforcement since President Reagan. Such an attack will also face stubborn adherence to 50 years of legal precedent, although forum shopping might mitigate this obstacle.
More plausible avenues for targeting private ESG policies and practices include the securities laws or administrative actions through agencies like the SEC. Expanding antitrust enforcement to address private ESG practices and policies would risk unintended consequences and might inadvertently bolster the “antitrust revolution” many Republican policymakers oppose.
The FTC After Loper Bright Enterprises
Even without the Second Trump Administration, the Supreme Court’s decision in Loper Bright Enterprises raises serious questions about the FTC’s rulemaking and enforcement practices. In Loper Bright Enterprises, the Supreme Court held that “[t]he Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Although the Supreme Court did not expressly overrule earlier decisions regarding federal administrative agencies (including the FTC), it clearly paved a road for future challenges to the FTC’s rulemaking and enforcement decisions. Keep in mind that Loper Bright Enterprises turned on Congress’ failure to adequately inform the agencies on how to interpret its statutes, and there is no more vague set of statutes than the federal antitrust laws such as the Sherman Act and Clayton Act.
Looking Ahead
A second Trump administration will likely prioritize predictability and pro-business rhetoric in antitrust enforcement. While this marks a step back from the Biden administration’s ambitious reforms, the influence of global enforcement trends ensures the conversation around remains dynamic.
Last week (early December 2024), President Trump announce his first nomination to work at the antitrust enforcement agencies. He nominated Gail Slater for Assistant Attorney General for the DOJ Antitrust Division. Slater is a return to the old school ways. A longtime FTC staffer whose work fell into the mainstream of enforcement for the 50 years before the Biden administration.
In response to federal shifts, Democratic state attorneys general may step up enforcement efforts. However, revenue constraints and limited resources – and possible removal to federal court – will likely hamper their ability to fill the gap left by a more restrained federal approach.
Ultimately, the legacy of current antitrust reforms may depend not on the next administration or state enforcement agencies but on the decades-long evolution of competition policy in the U.S. and abroad. This was likely the case, even if Vice President Harris had won the election.
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About the Author
Dan Goldfine is a business-focused litigator with a demonstrated history of resolving difficult legal challenges. With an abundance of experience handling class action and other complex litigation for his clients, including matters involving antitrust, insurance coverage, Racketeer Influenced and Corrupt Organizations Act (RICO), consumer fraud and consumer protection laws, Dan understands how litigation risks impact a business and aims to mitigate these risks to the fullest extent possible.