USA – ILLINOIS Trends and Developments Contributed by: Craig C. Martin and Matt Basil, Willkie Farr & Gallagher LLP
The Development of a New Antitrust Consensus in the USA Changes in presidential administrations tend to yield changes in policy. The Trump Administration has prom - ulgated 170 orders in 2025 alone, marking substan - tial changes in American energy, education, and trade policy, among others. In prior eras, changes in admin - istrations often reflected changes in antitrust enforce - ment; the Obama Administration’s Federal Trade Commission (FTC) initiated more merger enforce - ment actions than that of the Bush Administration, for example. Merger activity has often reflected the same – rising under more permissive administrations – and sinking below USD3 trillion in 2023 for the first time since 2013, partially due to “the Biden administration’s stringent antitrust enforcement lower[ing] the appetite for transactions” (Financial Times). It spiked follow - ing the 2024 election with many businesses, including private equity firms, expecting a return to a more per - missive antitrust scheme. (See id.) Rather, the Trump Administration maintains a similarly expansive view of antitrust to that of the Biden Administration, but differ - ent understandings of corporate power and protected interests make it challenging to predict outcomes. I. The current state American companies secured over USD35 billion in deals in a single day shortly after the 2024 election. (See id.) After all, the New York Times wrote that now- FTC Chair Andrew Ferguson would “almost certainly scrap [Biden FTC Chair Lina] Khan’s signature merger policy.” Indeed, Ferguson hinted at a return to “traditional” restrained understandings of antitrust in a concur - ring statement released three days before President Trump’s inauguration. (Concurring Statement of Commissioner Andrew N. Ferguson, Joined by Com - missioner Melissa Holyoak, In the Matter of Welsh, Carson, Anderson & Stowe, Matter No. 201-0031 (17 January 2025) (hereinafter, “Welsh Carson Concur - rence”).) There, upon issuing an administrative com - plaint and accepting a proposed consent order in a dispute involving Welsh, Carson, Anderson & Stowe (“Welsh Carson”), the FTC released a statement cel - ebrating the proposed order’s “novel treatment of private equity defendants” for establishing a “valu - able blueprint for future Commission orders involving
financially sophisticated actors.” (Statement of Chair Lina M. Khan, Joined by Commissioner Rebecca Kelly Slaughter & Commissioner Alvaro Bedoya, In the Mat - ter of Welsh, Carson, Anderson & Stowe, Matter No. 201-0031 (17 January 2025).) Ferguson, however, was unimpressed. To him, the matter was “an ordinary application of the most elementary antitrust princi - ples.” (Welsh Carson Concurrence, supra at 1-2.) The FTC observed Welsh Carson using market power to raise prices; in Ferguson’s view, that was sufficient to justify punishment. (Id.) But that apparent emphasis on price and output has not led to a full-frontal assault on the Biden Administra - tion’s antitrust legacy – even if Ferguson appears more sympathetic to mergers. (Statement of Chair Andrew N. Ferguson, Joined by Commissioner Melissa Holy - oak & Commissioner Mark R. Meador, In the Matter of Synopsys, Inc./Ansys, Inc., Matter No. 2410059 (28 May 2025) (hereinafter, “Synopsys Statement”).) Rather, Ferguson and his counterpart at the Depart - ment of Justice (DOJ) (collectively, with the FTC, the “Agencies”), Assistant Attorney General for the Anti - trust Division Gail Slater, appear to have embraced the Biden administration’s belief that antitrust laws should be “bulwarks” against “well-heeled interests... wield - ing enormous not just economic power, but politi - cal power,” and that “traditional” antitrust concerns itself with far larger matters than price and quantity. Among the nascent movement’s first steps? Allowing the Biden administration’s stricter Hart-Scott-Rodino (HSR) Act rules to take effect in February. Next? Keep - ing the Federal 2023 Merger Guidelines – the tightest in decades. (Id.) A new “America First” antitrust The decision to retain so much of the Biden Adminis - tration’s antitrust ethos reflects a growing consensus among regulators that antitrust can – and should – take a more active role in shaping our world. Indeed, DOJ Antitrust Division leader Assistant Attor - ney General Gail Slater said that she has “grown to appreciate that personal liberty and economic liberty are closely connected; that in many ways they are two sides of the same coin.” (Slater, supra.) In the past, Slater asserted, “a monopoly could control prices and
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