Private Equity Isn’t the Target Now, but Antitrust Risk Remains

Private equity firms faced unprecedented scrutiny from antitrust enforcement agencies during the Biden administration. The Trump administration shifted away from this, ending the policy of targeting private equity transactions and firms.

The current administration has demonstrated a willingness to allow transactions to proceed with divestiture remedies to resolve concerns, encouraging parties to engage early. Private equity (PE) dealmakers should expect the same level of scrutiny imposed upon all transactions moving forward.

PE Under Biden

The Biden administration targeted the PE business model itself, which they characterized as an inherent threat to competitive markets. According to Lina Khan, then chair of the Federal Trade Commission, PE firms use “extractive” strategies to strip their portfolio companies of assets to maximize short-term profits at the expense of long-term viability.

PE firms were also accused of using serial acquisitions of smaller companies and interlocking directors to consolidate industries and raise prices. PE transactions were subjected to heavy scrutiny and heavy-handed enforcement designed to “correct” the business model.

The Biden administration’s US Department of Justice and FTC implemented several changes that negatively affected PE firms. The agencies reworked the 2010 Horizontal Merger Guidelines, resulting in some novel considerations that have a disproportionate effect on transactions involving PE firms. The FTC under Khan issued a new policy statement on Section 5 of the FTC Act that specifically targeted PE firms and their transactions.

The agencies also finalized a major overhaul of the Hart-Scott Rodino form that substantially increased the burden on all filers, but also specifically targeted PE transactions. Additionally, the FTC suspended the statutory right to early termination of HSR Act review. Early termination allows non-problematic transactions to close before statutory waiting periods have expired.

The agencies also pursued several actions against PE firms, including some aggressive and novel approaches under the Sherman and Clayton Acts.

PE Under Trump

The Trump administration’s approach was foreshadowed in a statement issued on the final business day of the Biden administration by then-Commissioner Andrew Ferguson (now Chairman) on a settlement of the FTC’s action against PE firm Welsh Carson. Compared with the Biden enforcers who considered it a victory against PE firms, Ferguson, described the action as a “routine law-enforcement matter embodying a traditional approach to competition law.”

He explained: “I write to pierce through this breathless rhetoric to make clear that this case is an ordinary application of the most elementary antitrust principles. That Welsh Carson is a private equity firm is irrelevant; the antitrust analysis would be the same if Welsh Carson were, for example, an individual or institutional investor.”

He relied upon the unique evidence and posture in Welsh Carson and explained, “There is thus no reason for the Commission to single out private equity for special treatment.”

The Trump administration’s antitrust enforcement record to date is consistent with a return to a more neutral application of the law for PE transactions. The administration has challenged one PE transaction—PE firm GTCR’s acquisition of Surmodics. The complaint represents a traditional horizontal merger challenge based on a theory of unilateral effects—without any facts or allegations about rollups, about serial acquisitions, or turning on the fact that GTCR is a PE firm. The FTC lost its efforts to preliminarily enjoin the transaction on Nov. 10, 2025, and GTCR closed the transaction on Nov. 21, 2025.

The FTC and DOJ also ended the Biden-era suspension of early termination under the HSR Act. The absence of early termination likely delayed thousands of non-problematic deals during the Biden administration and had a negative effect on PE transactions. Additionally, the DOJ approved PE or PE-backed buyers of divestiture assets to remedy the challenge of UnitedHealth’s acquisition of Amedisys, a major change from the Biden era that essentially ended all divestitures to remedy competitive concerns with mergers.

In general, the Trump antitrust enforcers represent a reversal of course when it comes to merger remedies. The Biden enforcers largely refused to engage on divestitures to solve competitive concerns with proposed transactions. Since Trump took office, however, the agencies have resolved seven merger investigations via divestitures.

Despite these positive signs of neutral treatment of PE firms, a few Biden-era holdovers with a negative effect on PE firms remain: the HSR form, the 2023 merger guidelines, and the 2022 Policy Statement on Section 5 of the FTC Act.

Director interlock enforcement by the Trump administration has been limited to a single announcement by the FTC in September 2025 that three board members of Sevita Health had stepped down to avoid an unlawful board interlock. There was no complaint or consent order and the FTC’s announcement didn‘t mention that Sevita Health was owned by a PE firm.

Relatedly, also in September 2025, the commission issued an order denying the petition to reopen the FTC’s 2023 decision and order with Quantum/EQT, which involved non-corporate entities. Though the commission denied the petition, the FTC’s decision seemed to be based upon the application of the FTC’s modification standards, rather than substance. However, the commission did sidestep an opportunity to address the novel and aggressive issues furthered by the Biden commission related to the scope of Section 8 (combined with Section 5) for non-corporate entities, leaving at least some risk that the Trump enforcers aren’t opposed to such aggressive interpretations.

The anti-PE rhetoric of the Biden antitrust enforcers hasn’t found a home within the second Trump administration. Trump’s enforcers have largely remained quiet on the issue, and when confronted, seem to share Ferguson’s view that there is “no reason . . . to single out private equity for special treatment.”

This certainly doesn’t mean PE firms should expect a free pass—instead, it means that they should expect the same enforcement faced by other firms.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Deborah Garza is vice chair of Rule Garza Howley and a veteran antitrust lawyer with more than 40 years of experience advising on strategic transactions, investigations, and litigation.

Nathaniel J. Harris is a counsel at Rule Garza Howley with over a decade of antitrust experience spanning federal government roles at the FTC and DOJ and private practice.

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