North America Antitrust Digest

A quick look at the top headlines in Antitrust and Competition

1. FTC and DOJ Commit to 2023 Merger Guidelines

2. Slater Signals Strong Enforcement with Openness for Settlements

3. Trump Seeks Control Over FTC, Other Independent Agencies

4. Hart-Scott-Rodino Form Update Set for Implementation

A breakdown of the latest news, moves and trends

FTC and DOJ Commit to 2023 Merger Guidelines

FTC Chairman Andrew Ferguson recently announced in a series of posts on Xthat the 2023 Merger Guidelines will serve as the analytical framework for merger review at the FTC – a surprising move that means the standards of the Biden Administration will continue into the Trump era. The implications are profound for M&A activity and economic policies for several key reasons:

• Central to Biden Administration Policy: The Guidelines were crafted by former AAG Jonathan Kanter and FTC Chair Lina Khan, who received criticism from traditional conservative economists and the antitrust defense bar for abandoning the “consumer welfare standard” as the central tenet of review.

• Focused on More than Price: The 2023 Guidelines brought a broader analysis than a simple examination of prices, instead looking at competitive effects across the economy, labor concerns and other non-price issues like those in technology markets.

• Indicative of a Skeptical Stance: After the election, FGS predicted that antitrust and competition policy would depend on the personnel chosen for the FTC and DOJ. One month into the Administration, it is clear that VicePresident Vance and his pro-enforcement posture has largely won out over the laissez-faire “Chicago School” wing of more traditional Republican administrations.

Merger Guidelines are not law - they are merely an analytical framework the agencies use to assess the competitive implications of a proposed transaction. They do, however, influence the judiciary where antitrust trials happen.

Top Takeaway: A generation of jurists appointed by the Trump and Biden Administration using the 2023 Guidelines are now poised to write the future of antitrust enforcement for years to come.

Slater Signals Strong Enforcement with Openness for Settlements

“I expect this administration will be more open to settlements in merger cases when effective and robust structural remedies can be implementedwithout excessively burdening the Antitrust Division’s resources.” – Gail Slater, 2025

During the hearing to consider Gail Slater’s nomination for Assistant Attorney General for Antitrust at the Department of Justice (DOJ), in which she received broad bipartisan support, Slater asserted the importance of vigorous antitrust enforcement, calling the tool a “scalpel” that should be targeted to cases with evidence of harm.

While both she and Andrew Ferguson at the FTC are expected to continue the robust enforcement posture of the Biden Administration, Slater also signaled that at least one area of distinction will be in a willingness to accept remedies. If done right, she noted, remedies can remove any competitive harm from a merger.

Further, Slater, previously a notable critic of Big Tech, assured Republican Senators she would continue working on the cases against Apple and Google, but added that adequate resourcing will influence how the agency pursues cases.

Developments and deals to watch

Trump Seeks Control Over FTC, Other Independent Agencies

On February 18, President Trump signed an executive order requiring independent agencies including the FTC, FCC, and SEC to allow the White House to review proposed regulations, priorities and strategic plans. The order aims to help ensure tax dollars are spent wisely; according to the statement, “these agencies issue rules and regulations that cost billions of dollars and implicate some of the most controversial policy matters, and they do so without the review of the democratically elected President.”

The actions are the latest example of President Trump seeking to consolidate executive power and exert control over independent agencies. Last week, Acting Solicitor General Sarah Harris sent a letter to Senate Judiciary Committee Ranking Member Richard Durbin (D-Ill.) stating that the Department of Justice will ask the Supreme Court to overturn Humphrey’s Executor, a legal precedent limiting the ability for the president to fire members of independent agencies, including FTC Commissioners, at will. Notably, FTC Commissioner Andrew Ferguson endorsed the letter, telling Axios, "I will be making a motion to ask my fellow Commissioners to agree to align the FTC's position on this issue with the President's position.”

Top Takeaway: If successful, these moves could make the enforcement decisions of the FTC more beholden to the whims of the president. That being said, the actions from President Trump have raised several legal questions that are likely to be challenged and determined in court.

Essential insights and analysis

Hart-Scott-Rodino Form Update Set for Implementation

In another post on X, the FTC announced that the Commission will be fully implementing the updated Hart-Scott-Rodino (HSR) pre-merger notification form, which requires more data and details upfront in HSR filings. The announcement sets up an immediate conflict with the House Judiciary Committee’s new Antitrust Subcommittee Chair Scott Fitzgerald (R-WI), who introduced a resolution of disapproval for the new form.

Under longstanding law, an HSR submission is required for any transaction over a certain size (the inflation adjusted number this year is $126 million). Chair Ferguson has argued that the new form will increase efficiency and transparency by asking for more relevant information up front, but some in the business community and the antitrust bar believe the requirements are intrusive and have limited relevance to competition concerns.

Top Takeaway: Fitzgerald’s resolution of disapproval, filed under the Congressional Review Act, could repeal the new HSR form through a simple majority vote. Yet with Chair Ferguson endorsing the new HSR form, and slim vote margins in the House, passing such a resolution would be a political tightrope that might not be worth the risk for Speaker Johnson.