Trump Antitrust Duo Keeps Rules From Biden-Era Deals Crackdown

The Trump administration is engaged in a wholesale unwinding of President Joe Biden’s policy agenda — except when it comes to competition enforcement — disappointing dealmakers who had been anticipating an easier time with regulators.

Trump’s antitrust chiefs at the US Justice Department and the Federal Trade Commission said Tuesday that they will follow tougher merger review rules adopted under Biden in 2023, surprising critics who had hoped for a rollback of those requirements.

DOJ and FTC leadership sent memos to staff saying they will be keeping the rules, signaling some continuity with Biden’s stepped-up competition agenda — which drew the ire of business groups and billionaires alike.

“The Trump Antitrust Division and FTC will serve as tough enforcers, and they will work closely together to deliver results for the American people. America First Antitrust,” said Mike Davis, a key Trump ally, and head of the conservative legal advocacy group Article III Project. “The Trump antitrust enforcers won’t do regulations; they will serve as law enforcers first.”

Sweeping Overhaul

Under Biden’s watch, the agencies finalized a sweeping overhaul of rules the government uses to determine whether deals violate competition law in a bid to extend a crackdown on illegal mergers and acquisitions. The guidelines were designed to thwart companies seeking to dominate their industries by buying up rivals.

The US Chamber of Commerce slammed the move at the time, saying the guidelines were designed to chill merger activity, hurt smaller companies and place U.S. businesses at a disadvantage with their global competitors.

The move to keep the framework was already drawing fresh ire from groups backed by big business, including the International Center for Law and Economics, which has been funded by the Charles Koch Institute and tech trade associations backed by Alphabet Inc.’s Google and Amazon.com Inc.

Read more: Trump Antitrust Enforcers to Keep Biden-Era Merger Rules (2)

Rare Alignment

A tougher stance on antitrust enforcement marks a rare area of alignment between the two administrations. The Biden team continued federal lawsuits seeking to rein in the power of giant technology companies that were filed under Trump’s first administration.

Trump criticized the big tech platforms for suppressing conservative viewpoints and moved to crack down on them during his first term. His antitrust enforcers sued Google and Meta Platforms Inc. over their search and social media businesses. They also opened investigations of Amazon and Apple Inc. that led to lawsuits under Biden’s watch.

Both the DOJ and the FTC review mergers to assess if they would cause competitive harm and also have the power to bring monopoly cases against companies they determine are abusing market dominance.

The merger guidelines were “consistent with the iterative, bipartisan approach” of previous versions and while not perfect, would remain in place, wrote Omeed Assefi, the acting assistant attorney general for antitrust at the Justice Department.

In his own memo,FTC Chair Andrew Ferguson said maintaining consistent standards for merger reviews is key for the business and legal community.

“If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts,” he wrote. “No business can plan for the future on the basis of guidelines they know are one election away from rescission, and no court will rely on guidance that is so obviously partisan.”

Bill Kovacic, a law professor at George Washington University, said keeping the merger rules doesn’t necessarily mean the agencies are bound to challenge more deals. “There’s also a lot of discretion built into the guidelines with freedom to make adjustments and affect the way they are applied and interpreted,” he said, suggesting merger enforcement priorities could still change without withdrawing the guidelines.

Kroger, Albertsons

Since their adoption, the rules have been cited favorably by several courts, including in the FTC’s successful challenges to the deal between Kroger Co. and Albertsons Cos. and Tapestry Inc. and Capri Holdings Ltd.

In written responses to senators also made available Tuesday, Gail Slater — Trump’s nominee to head the Justice Department’s antitrust division — said she agreed with maintaining the 2023 rules.

“It is critical to the antitrust division’s law enforcement mission that its guidelines reflect the original meaning of the applicable statutory text as interpreted by the binding rulings of the courts,” she wrote.

“The merger guidelines have been revised periodically when time and experience suggest changes are necessary, but when 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,” Slater continued.

Slater appeared before a Senate panel last week, but still requires a vote from the full chamber before her nomination is confirmed.

Joel Thayer, president of think tank Digital Progress Institute, called criticism of the 2023 guidelines “overblown.”

The rules are “very much a textualist perspective on antitrust” that seek to “outline what current law is,” said Thayer, who is also a member of the conservative legal group The Federalist Society. “If the Trump administration is to stand for law enforcement, understanding the law and having guidance that says it will enforce the law is preeminent.”

(Updates with outside quote in fourth paragraph, context throughout.)

To contact the reporters on this story:
Leah Nylen in Washington at lnylen2@bloomberg.net;
Josh Sisco in San Francisco at jsisco6@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman

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