Antitrust Under Trump 2.0: No More "Hipster Antitrust," But Scrutiny Will Remain
With President Joe Biden's departure, aggressive antitrust enforcers at the U.S. Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hand over the reins to incoming Trump Administration appointees who do not share their predecessors' dogmatic commitment to an anti-monopoly (sometimes derisively referred to as "hipster antitrust") agenda.
In practice, this agenda prioritized major enforcement actions against technology giants and ambitious efforts to expand the antitrust agencies' powers. These efforts included using rulemaking powers to block employers from imposing non-compete restrictions on employees or adopting or revising policy guidelines to attempt to strengthen the agencies' hands in litigation. When it came to applying the antitrust laws to mergers and acquisitions, the agencies often appeared to adopt a stance that all mergers were inherently problematic and seemed to measure their success based on the number of proposed transactions merging parties abandoned, regardless of whether those deals might have yielded significant efficiencies or resulted in higher prices for consumers.
Transportation was not a major focus of the Biden antitrust agencies, but its enforcers (as noted in a recent Holland & Knight blog post) challenged an airline merger and a major commercial alliance between commercial airlines, and in October 2024 solicited information about competition in the industry.
Businesses in the transportation and infrastructure sectors should expect a less aggressive and more accommodating antitrust enforcement posture in the new administration, but by no means a hands-off approach. Companies pursuing mergers and acquisitions will no longer face hostile agencies committed to preventing the consummation of as many transactions as possible. The second Trump Administration's Antitrust Division and FTC are expected to revive "early termination" of Hart-Scott-Rodino (HSR) waiting periods for deals with no prospect of impacting competition. They are also likely return to engaging more constructively with merging parties on divestitures or other remedies to potentially anticompetitive mergers, and might be more open to factoring into their analyses how certain transactions might create more efficient and competitive businesses.
The new administration might also reconsider some of the more aggressive policy statements adopted during the Biden Administration, including new Merger Guidelines that (among other things) lowered market share and concentration thresholds for finding transactions presumptively anticompetitive. However, particularly when it comes to transactions between head-to-head, "horizontal" competitors, the antitrust agencies (as they did during the first Trump Administration) will likely continue to enforce the antitrust laws aggressively.
The transportation and infrastructure industries were not an obvious enforcement priority of the first Trump Administration's antitrust enforcers, and nothing about President-Elect Donald Trump's nominees to lead the antitrust agencies – Gail Slater at the Antitrust Division or Andrew Ferguson at the FTC – suggests that they will prioritize these sectors in particular going forward. But to the extent the agencies seek to respond to economic concerns that appeared to motivate many voters in the 2024 election, prominent targets of periodic consumer dissatisfaction such as airlines could remain in the crosshairs under new leadership.