USA Trends and Developments Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
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Continuity of Biden administration policies Federal antitrust enforcement in the United States is charged to two agencies: the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ). The heads of these two agencies – each a political appoint - ment by the President – have broad discretion to set the antitrust enforcement agenda of the US federal government. Outgoing Biden-era FTC chair Lina Khan achieved notoriety in the business community and in the general public for her aggressive approach to antitrust enforcement. Khan and her DOJ counterpart, Jonathan Kanter, over - saw a rewrite of the agencies’ Merger Guide - lines, which articulate the principles by which the agencies assess whether a transaction is likely to harm competition. Under those revised Merger Guidelines, US antitrust enforcement has been characterised by increased challenges to merger activity and greater willingness to litigate merger challenges than to negotiate settlements. In addition, the FTC and DOJ collaborated on a rule-making initiative that significantly increased the burden to parties of filing a merger control notification under the Hart-Scott-Rodino Anti - trust Improvements Act of 1976 (the “HSR Act”).
Merger Control Enforcement Through an Administration Change The second presidential administration of Don - ald Trump has changed expectations for Ameri - can domestic and foreign policy in many ways. For businesses, changing international trade policy, restriction of immigration, and cuts to the federal government have required adapting business strategy to changing circumstances. But, through the first few months of the sec - ond Trump administration, there has been less change to antitrust merger enforcement than some expected. Importantly, some of the ambi - tious merger control policies initiated under President Biden have continued at the Federal Trade Commission and the Department of Jus - tice Antitrust Division, as administration officials seek to promote economic populism. Nonetheless, there are also emerging develop - ments in antitrust enforcement that may help facilitate pro-competitive mergers, and allow businesses to unlock efficiencies that were sidelined as part of the Biden administration’s inherent scepticism of mergers and financial investors. The administration has also intro - duced some new policy priorities that may align merger enforcement with political themes from President Trump’s election.
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