A Review of Early Antitrust Enforcement Under Trump 2.0

At a Glance

• Terminated Democratic commissioners of the FTC, Alvaro Bedoya and Rebecca Kelly Slaughter, filed a lawsuit arguing their terminations are illegal because FTC commissioners may only be removed from their positions for cause, as a protection against presidential overreach under the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States.
• Chair Ferguson has stated unequivocally that “the FTC’s and DOJ’s joint 2023 Merger Guidelines are in effect and are the framework for this agency’s merger-review analysis.”
• On July 21, 2025, the FTC is to submit a report to the courts outlining its next steps regarding the challenged rule banning noncompete agreements. It is generally anticipated the new FTC leadership will use this opportunity to walk back the agency’s support for the rule.
• The final rule for changes to the notification form under the Hart-Scott-Rodino Act went into effect without issue earlier this year and applies to all HSR filings made after February 7, 2025.
• The FTC’s trial against Meta, which started on April 14, 2025, and is expected to last up to eight weeks, will be an early test of the administration’s willingness to pursue novel cases against Big Tech.

In the months before the 2024 presidential election, we reported on the stated antitrust agendas of candidates Kamala Harris and Donald Trump. Now a few months into the second Trump administration, we review recent developments in antitrust enforcement and consumer protection.

Changes in FTC Personnel and Enforcement Priorities

Last month, consistent with its terminations of federal workers from at least 18 federal agencies, the Trump administration removed two Democratic commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter, from their roles at the Federal Trade Commission (FTC). Newly installed FTC Chair Andrew Ferguson published a statement of support for the removals, writing that he had “no doubts about [President Trump’s] constitutional authority to remove Commissioners.”

In response, Bedoya and Slaughter filed a lawsuit in the U.S. District Court for the District of Columbia, naming as defendants President Trump, Chair Ferguson, Melissa Holyoak (another Republican commissioner of the FTC) and David Robbins (executive director of the FTC). The complaint argues the terminations are illegal because FTC commissioners may only be removed from their positions for cause, as a protection against presidential overreach under the Supreme Court’s 1935 precedent in Humphrey’s Executor v. United States. Humphrey’s Executor, the complaint alleges, provides for cause-termination protection to “ensur[e] that agency officials can exercise their own judgment,” consistent with the FTC’s enabling statute that contemplates bipartisan decision-making at the agency.

It remains to be seen how Bedoya and Slaughter’s lawsuit will be resolved and, more imminently, how the removal of two of the four commissioners (the fifth seat was vacated by the previous chair, Lina Kahn, at the beginning of President Trump’s second term) will affect the FTC’s ability to continue its enforcement duties. Historically, the FTC has acted in a bipartisan manner, though political divisions among commissioners became more pronounced under the leadership of Lina Khan, the recently departed FTC chair appointed by former President Biden. Prior to and following their terminations, Bedoya and Slaughter had questioned whether President Trump might curtail the powers of the FTC to serve the interests of tech companies and other large business interests.

A handful of lawsuits, including against Southern Glazer and Pepsi for price discrimination under the Robinson-Patman Act (RPA), were filed in the last months of the Biden administration. The RPA has long been disfavored by enforcers, who had sidelined RPA enforcement in recent decades in favor of enforcement actions under the Sherman and Clayton Acts. The lawsuits against Southern Glazer and Pepsi are the first enforcement actions filed under the RPA since 2000, and Commissioners Ferguson and Holyoak dissented from the FTC’s majority decision to initiate both litigations. While each of them acknowledged the FTC’s obligation to enforce all antitrust laws, including the RPA, they questioned whether the cases against Southern Glazer and Pepsi could be successful based on the record that had been developed during the FTC’s initial investigation. That said, as of the publication date of this article, the FTC has not indicated it intends to drop these RPA lawsuits, and Judge Slaughter from the Central District of California has denied Southern Glazer’s motion to dismiss the case against it.

Removals aside, the FTC does not require a quorum to run, and can continue to conduct business, with only two commissioners. Jordan S. Andrew, deputy assistant director of the FTC’s Mergers I Division, said, during a panel discussion at the American Bar Association Antitrust Section’s annual Spring Meeting, that the FTC will continue to focus on “rollups” — i.e., serial, nonreportable transactions that collectively result in significant acquisitions of market share. Speakers on other panels suggested that enforcement overall might decrease, but industries and companies that fall in White House crosshairs are likely to receive special scrutiny. Panelists also suggested there likely will be more direct discussions between agencies and the administration about enforcement targets and litigation decisions. In a separate speech at an event hosted by the Capitol Forum in early April, Chair Ferguson stated his intention to continue lawsuits against large tech companies.

Merger Guidelines

In December 2023, the FTC and Department of Justice (DOJ) released joint Merger Guidelines “describ[ing] factors and frameworks the Agencies often utilize when reviewing mergers and acquisitions.” We have previously written about the ways in which the new guidelines departed from prior iterations, reflecting the most significant change to the guidelines in 30 years. The guidelines, which are not binding law, are issued to inform industry participants and practitioners about the ways the FTC and DOJ analyze proposed mergers and acquisitions, and they are often relied upon by judges. During discussions at the 2025 Spring Meeting, it was suggested that the new Merger Guidelines, while broader than what the Republican commissioners might have chosen, could nonetheless be helpful to the Republican-controlled FTC to the extent they help the FTC plausibly pursue creative antitrust enforcement actions against businesses that find themselves in the crosshairs of the Trump administration.

Many had previously speculated that the Trump administration might roll back the 2023 Merger Guidelines, emphasizing their focus on a “law-centered approach” rather than the traditional “economic theory of antitrust law.“ Such conjecture was disproved when Chair Ferguson released a statement to FTC staff on February 18, 2025, stating unequivocally that “the FTC’s and DOJ’s joint 2023 Merger Guidelines are in effect and are the framework for this agency’s merger-review analysis.” He continued, “the clear lesson of history is that we should prize stability and disfavor wholesale rescission.” Ferguson’s statement also suggested that the federal government’s limited resources should not be directed toward reworking guidelines, noting constant changes diminish their usefulness to courts and businesses. Omeed Assefi, the then-acting assistant attorney general for the Antitrust Division, issued a similar memorandum to Antitrust Division staff on the same day. And Gail Slater, the new assistant attorney general for the Antitrust Division, echoed the same sentiment in her confirmation hearing with the caveat that when and if “revisions are undertaken, a careful and transparent process should be used to ensure our guidelines maintain the stability needed for rules of the road to serve their purpose.”

Ban on Noncompete Agreements

Last year, the FTC attempted to institute a rule banning most noncompete agreements nationwide. The rule has since been the subject of lawsuits in various federal district courts, with Judge Ada Brown in the Northern District of Texas issuing an August 20, 2024, order enjoining the rule from going into effect nationwide. This decision and a companion order issued by Judge Timothy Corrigan in the Middle District of Florida were appealed to the Fifth and Eleventh Circuits, respectively.

Originally, the commissioners voted 3-2 along party lines in favor of the noncompete rule, with now-Chair Ferguson and Republican Commissioner Melissa Holyoak dissenting. Chair Ferguson and Commissioner Holyoak each issued strongly worded dissenting statements against the rule’s initial passage, with Ferguson stating the rule “is by far the most extraordinary assertion of authority in the Commission’s history.” The crux of Ferguson’s argument against the rule was that the FTC lacked rulemaking authority under Section 6(g) of the FTC Act to “make substantive rules regulating private conduct,” including employment contracts. Importantly, however, while each dissent acknowledged historical problems and concerns about the use of noncompetes, the FTC’s continued focus on labor markets may mean noncompetes will continue to be targeted, albeit on an individualized basis.

On March 7, 2025, the FTC filed motions to stay both appeals, citing the changes in the new administration and the agency’s desire to reconsider the rule. Each of the motions quoted Chair Ferguson’s prior comments that “the Commission . . . basically needs to decide whether it’s a good idea [and] it’s in the public interest to continue defending this rule.” Both courts granted the stay motions. At the end of the 120-day stay period, on July 21, 2025, the FTC is to submit a report to the courts outlining its next steps with regard to the rule. It is generally anticipated that the new FTC leadership will use this opportunity to walk back the agency’s support for the rule.

The procedures by which the FTC must abide in creating new rules also govern its ability to rescind or alter rules. This means that an agency seeking to repeal or amend existing rules is beholden to follow the requirements of the Administrative Procedures Act (APA) unless a relevant exception applies. Courts reviewing rescissions of rules will require an agency to show “that its new policy adheres to the underlying statute; is supported by good reasons; and is better, in the agency’s belief, than the prior policy.”

Amendments to the Hart-Scott-Rodino Act

In June 2023, the FTC and DOJ announced sweeping changes to the notification form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Following a notice and comment period, the final rule was posted late last year. The final rule, which was changed from the original, more onerous, proposal after Chair Ferguson and Commissioner Holyoak joined the FTC, is a substantial departure from the prior iteration. Despite the change in administration, the final rule went into effect without issue earlier this year and applies to all HSR filings made after February 7, 2025. Chair Ferguson has acknowledged that even if the final rule is “not perfect,” it is “a lawful improvement over the status quo.” The changes mean every business making an HSR filing, regardless of the potential competitive implications of the underlying transaction, will be required to provide the antitrust enforcers with more information up front, which will result in significantly greater legal expenses and initial business burdens. But the new rule also is intended to help the agencies quickly identify potentially anticompetitive deals and short-circuit preliminary investigations.

The final HSR rule is not without its critics. On January 10, 2025, the United States Chamber of Commerce filed a lawsuit in the Eastern District of Texas alleging the final HSR rule is not “necessary and appropriate” under the HSR Act, and thus, the FTC is without authority to issue the new rule. The complaint further alleges the final rule is arbitrary and capricious in violation of the APA. Perhaps unexpectedly, the Chamber of Commerce did not immediately seek a preliminary injunction or other equitable relief preventing the final rule from taking effect. On April 10, 2025, the FTC filed a motion to dismiss for lack of jurisdiction and accompanying motion to transfer the case to the District of Columbia. Briefing on these motions remains ongoing.

“Big Tech” Enforcement

Many have noticed the apparent closeness between President Trump and tech moguls, whose businesses were favored targets for antitrust enforcement under the Biden administration. Though there is yet to be as significant of a break from Big Tech enforcement as anticipated, AAG Slater has commented that the “Big Tech” cases that began under President Trump’s first administration are “very complex civil litigation and costly.“ The FTC’s trial against Meta, which started on April 14, 2025, and is expected to last up to eight weeks, will be an early test of the administration’s willingness to pursue similarly novel cases against the tech giants. It has been reported that Mark Zuckerberg had engaged in preemptive settlement talks with President Trump in the apparent hope of avoiding a trial. Such direct engagement by the White House is a departure from its traditionally more hands-off role in federal antitrust enforcement.

A recent DOJ panel on censorship in Big Tech saw Antitrust Division attorneys questioning whether trade associations organized for the development of common policies among tech platforms are really a way for them to coordinate against regulations they deem too prohibitive. AAG Slater espoused a similar view during her confirmation hearing, indicating that while members of the administration may be more closely involved in Big Tech enforcement than in previous administrations, it is unlikely to cease.

Takeaways

The first few months of Trump’s second administration have resulted in less substantive shifts in antitrust administration than many had anticipated. Though there may be more leeway for mergers and other transactions than existed under the Biden administration, the pendulum has not swung so significantly toward free rein that businesses should relax their antitrust policies or avoid discussing complicated transactions with experienced antitrust counsel.

Companies also should continue to monitor cases and enforcement actions brought by the DOJ and FTC, as the agencies may reevaluate what actions are worthy of the enforcers’ limited resources.

Failure to comply with the antitrust laws will continue to have serious consequences for businesses and individuals. Companies should continue to strengthen their antitrust compliance practices to avoid civil or criminal actions against them.