USA Trends and Developments Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
With the inauguration of a Republican president in January 2025, Khan and Kanter were replaced, as is customary for political appointees. Republi - can commissioner Andrew Ferguson was elevat - ed to Chair of the FTC, and Gail Slater, a former aide to Vice-President JD Vance, was named Assistant Attorney General at DOJ. At the helm of the federal antitrust agencies, Ferguson and Slater are empowered to reverse many of the initiatives that characterised Biden-era antitrust enforcement under Khan and Kanter, but to this point, they have signalled an intent to continue to pursue aggressive merger enforcement. 2023 Merger Guidelines On 18 February 2025, Chair Ferguson published a memo to FTC staff affirming his support for the revised Merger Guidelines published under the Biden administration in 2023. Ferguson extolled the virtues of a predictable merger control regime for businesses, which is not subjected to pendu - lum swings with every presidential election. To that end, Ferguson explained, “stability across administrations of both parties has thus been the name of the game” and history instructs that the agencies ”should prize stability and disfavor wholesale rescission” of the Merger Guidelines. Indeed, this commitment to the 2023 Merger Guidelines has already been seen in action: since the inauguration of President Trump, the FTC and DOJ (as of May 2025) have each brought a complaint to enjoin a merger, and each complaint cites the 2023 Merger Guidelines. While Chair Ferguson characterises the 2023 Merger Guidelines as a “restatement of prior iterations”, the text of the 2023 Guidelines did contain significant departures from the prior guidelines. In particular, the 2023 Guidelines:
• place greater weight on structural presump - tions of harm, and lower the standards for finding mergers presumptively unlawful; • reflect deep scepticism of arguments of a transaction’s pro-competitive benefits and efficiencies; • ascribe significant weight to the potential market entry of the parties, as a theory of a transaction’s harm to competition; • introduce non-horizontal theories of harm premised on market “dominance” and ”entrenchment” that have generally not been pursued by prior administrations; and • make special mention of transactions involv - ing multi-sided platforms and transactions impacting labour markets. Nonetheless, the agencies are not bound by the 2023 Merger Guidelines; functionally, the Guide - lines are an announcement of the agencies’ own enforcement priorities and processes, which aim to “provide transparency into the agencies’ deci - sion-making process” by describing the ”factors and frameworks” the agencies use in reviewing On 10 February 2025, when the revised HSR Act rules took effect, Chair Ferguson affirmed on X (formerly Twitter) his support for the more burdensome reporting requirements. Ferguson described the revised rules as the product of “bipartisan consensus” to enact updates that ”were long overdue” and he heralded the intro - duction of the new rules as “a big day if you care about stopping monopolization and protecting Americans from anticompetitive mergers”. proposed mergers. HSR Act revisions Key revisions to the HSR Act’s reporting require - ments are outlined at 3.5 Information Included in a Filing of the US Law and Practice chapter in this guide. Among the most notable chang -
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