When President Biden appointed Lina Khan to lead the Federal Trade Commission, and Jonathan Kanter to lead the Antitrust Division of the Department of Justice, he staked out an energetic new approach to antitrust enforcement for his administration, exemplifying the old maxim that “personnel is policy.” Khan and Kanter went on to capture more headlines than any previous United States antitrust enforcers. Through their aggressive rhetoric, controversial policy shifts, and a remarkable number of high-profile enforcement matters, Biden’s antitrust duo brought issues around competition to unprecedented prominence among business leaders, policymakers, and the general public alike.
President-elect Trump’s own personnel picks likewise provide a window into what companies can expect over the next four years. Trump’s choices for top antitrust roles have reputations for being antitrust “hawks,” and send a clear signal that the new administration will continue current levels of vigorous enforcement—particularly with respect to Big Tech. However, while the new administration is likely to be tough on antitrust issues relative to most of its predecessors, it can also be expected to proceed from a more conventional and predictable framework than we’ve seen over the last few years. Importantly, the choices reveal that the new administration is unlikely to exhibit the same abiding hostility to M&A in general that seemed to characterize Khan’s and Kanter’s tenures and is instead likely to adopt a more traditional (and business-friendly) tone and cadence for regulatory engagement.
Trump announced his intention to appoint Gail Slater to lead the DOJ’s Antitrust Division. Slater is an Ireland-born and educated antitrust veteran who, after a stint in private practice, spent 10 years at the FTC and later served on the president’s National Economic Council during the first Trump administration. Most recently, Slater served as an economic advisor to incoming Vice President J.D. Vance. Vance’s own populist bent toward antitrust policy suggests Slater is unlikely to fit the mold of prior Republican-appointed antitrust enforcement officials, who traditionally have taken a more hands-off, “do no harm” approach to intervention in the free market.
In announcing his choice of Slater, Trump said, “Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech!” Trump added that he “was proud to fight these abuses in my First Term, and our Department of Justice’s antitrust team will continue that work under Gail’s leadership.”
Following his selection for DOJ leadership, Trump tapped current FTC Commissioner Andrew Ferguson to chair the FTC. Ferguson reacted to the news of his appointment with a social media post promising to “end Big Tech’s vendetta against competition and free speech.” Since his appointment as one of two Republican commissioners in April 2024, Ferguson has voted with the Democratic majority in most of its enforcement actions. However, Ferguson has also joined with fellow GOP Commissioner Melissa Holyoak in a number of vigorous dissents from the Khan-led majority. Further, Ferguson, and Holyoak were instrumental in scaling back the ambitious new pre-merger notification rules first published in 2023 and finalized in October of last year—and delivered pivotal votes to secure an agreement from the majority to lift the suspension of grants of early termination of Hart-Scott-Rodino Act waiting periods first put in place in the early days of the Biden administration.
Importantly, Trump also announced that he would nominate Mark Meador to become an FTC commissioner. Meador, a partner with a boutique antitrust practice, previously served as the deputy chief counsel for antitrust for Republican Senator Mike Lee of Utah and has several years of experience at both federal antitrust agencies. His public statements over the last several years reveal a populist, pro-enforcement outlook, and his nomination is a clean break from the traditionalist antitrust wing of the Republican party. Like Khan and Kanter, Meador has openly criticized what he regards as under-enforcement of antitrust laws over the last several decades and has spoken favorably of the 2023 merger guidelines adopted by the FTC and DOJ. Further, last year Meador said that governmental antitrust enforcement “has a legitimate role to play in protecting our economic liberties and our cultural values.” Given his involvement in drafting a bill that would have forced the breakup of Google’s ad tech business, his public criticism of Google as a “monopolist,” and his representation of conservative social media platform Rumble while in private practice, he can be expected to support continued scrutiny of Big Tech.
Trump’s first term was characterized by relatively aggressive antitrust enforcement—a departure from traditional Republican antitrust philosophy that is often viewed as more lax on both merger and conduct enforcement. Trump’s DOJ brought the first litigated case against a vertical merger (AT&T/Time Warner) in decades, and it was the Trump administration that launched the Google search monopolization case, which was the first Big Tech monopolization enforcement action since the Clinton administration suit against Microsoft in 1998. The FTC and DOJ under Trump also initiated more Second Request merger investigations than occurred during Obama’s second term—and significantly more than during the Biden administration. Trump’s DOJ also embraced and expanded labor-related enforcement activity begun during the Obama years, targeting no-poach agreements between competitors.
Something interesting then happened among a subset of GOP legislators and policy leaders during the tenure of the more populist/progressive antitrust leadership under Biden: the rise of the “Khanservatives,” or conservatives (like Meador) who openly sympathize with the progressive antitrust critique that views large concentrations of economic power in big business to be a threat to society. These include many Republican lawmakers with antitrust oversight roles, as well as Vance, who once famously quipped that, “I look at Lina Khan as one of the few people in the Biden administration that I actually think is doing a pretty good job.”
While changes in presidential administration are often characterized as representing a pendulum swing in policy (e.g., from left to right), against this backdrop a pendulum swing away from rigorous enforcement does not appear to be in the cards. The changes in store with the second Trump administration are therefore more likely to relate to the focus, character, and tone of the enforcement efforts.
Biden’s enforcers embraced the deterrence value of saber-rattling rhetoric, as well as threats of costly investigations and lengthy procedures, and adopted a number of practices that reduced the predictability of enforcement decisions and otherwise increased costs and uncertainty for businesses.1 Despite a less-than-impressive track record in court challenges to M&A transactions, Khan nonetheless touted her success during her tenure in securing the abandonment of dozens of deals without a challenge (most even before a Second Request was issued). Kanter boasted that, “The deterrent effect [of the agencies’ actions] is powerful and the results are tangible. Simply put—most anticompetitive deals are no longer getting out of the boardroom.”
Signs point to a sharp departure from this kind of approach in the new administration. The dissents of soon-to-be FTC Chairman Ferguson and other Republicans at the FTC over the last four years provide the best illustration of the coming shift. By and large, the GOP minority were supportive of Khan’s enforcement actions and investigatory initiatives, but dissented vigorously when:
Stung by the failure of the majority’s noncompete rule to overcome judicial opposition (which largely mirrored the minority’s dissents), Khan negotiated with the Ferguson and Holyoak to secure their support for her other major rulemaking effort—the new HSR rules, which were substantially scaled back from the changes originally proposed when the Democrats had a 3-0 majority. Together with the nominees’ public statements, this all suggests that new leadership is likely to continue the current zealous enforcement agenda, but is equally likely to abandon novel tactics, hostile rhetoric, and boundary-stretching policy pronouncements.