Competition leaders “threading the needle” of antitrust enforcement
Antitrust will look different under Trump 2.0.
That’s according to FTC Chair Andrew Ferguson, who, along with Gail Slater, Assistant Attorney General in the DOJ’s Antitrust Division, spoke at a recent panel event hosted by FGS Global and The Capitol Forum.
Specifically, when asked by moderator Oren Cass, Chief Economist of American Compass, about the difference between the antitrust philosophy of Trump 2.0 and the Biden Administration, Ferguson criticized his predecessor for having an “ideological predisposition against M&A.” By contrast, he stated, today’s FTC will “thread the needle” by scrutinizing illegal conduct but quickly getting out of the way of mergers that do not violate the antitrust laws.
They'll also be more receptive to remedies than their predecessors – but not just any remedies. Slater chimed in to caution that only those that are substantive enough to truly fix competition issues and that are, to put it simply, “not bullshit,” will be considered.
Further, the FTC emphasized that their priorities will be on specific markets that are most likely to improve the lives of ordinary families, such as Big Tech. In addition to being a sector that touches the lives of nearly everyone, every day, Ferguson explained that Big Tech concentration can and has led to companies holding tangible political power, an issue which the administration intends to temper. In fact, Ferguson cited big monopoly alongside big government as the two greatest threats to American families.
On the regulatory side of things, the priority will be on non-competes. Ferguson expressed a desire for a vigorous non-compete program at the FTC, one he is already beginning to shape through the establishment of a labor task force at the agency earlier this year. As for the DOJ, Slater is still in information gathering mode but is interested in investigating regulations that could be unintentionally anticompetitive.
However, both the FTC and DOJ are on the same page about a rethink of the “consumer welfare standard.” While Ferguson and Slater acknowledged that the courts have historically viewed it as being about more than price, they noted that previous enforcers made an ideological decision to think about it more narrowly. Ferguson and Slater intend to re-expand this view, agreeing that the consumer welfare standard can be applied to non-price considerations such as the collection and use of data from tech companies.
Ultimately, while companies should not expect deals to get a free pass in a second Trump administration, the enforcers signaled that they will be more open to remedies and more willing to get out of the way of non-problematic transactions quicker than their predecessors. Still, how this plays out in practice remains to be seen.
To watch the full video of the session, please fill out the form below.