The Development of a New Antitrust Consensus in the USA

Changes in presidential administrations tend to yield changes in policy. The Trump Administration has promulgated 170 orders in 2025 alone, marking substantial changes in American energy, education, and trade policy, among others. In prior eras, changes in administrations often reflected changes in antitrust enforcement; the Obama Administration’s Federal Trade Commission (FTC) initiated more merger enforcement 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 following the 2024 election with many businesses, including private equity firms, expecting a return to a more permissive antitrust scheme. (See id.) Rather, the Trump Administration maintains a similarly expansive view of antitrust to that of the Biden Administration, but different 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 concurring statement released three days before President Trump’s inauguration. (Concurring Statement of Commissioner Andrew N. Ferguson, Joined by Commissioner Melissa Holyoak, In the Matter of Welsh, Carson, Anderson & Stowe, Matter No. 201-0031 (17 January 2025) (hereinafter, “Welsh Carson Concurrence”).) There, upon issuing an administrative complaint and accepting a proposed consent order in a dispute involving Welsh, Carson, Anderson & Stowe (“Welsh Carson”), the FTC released a statement celebrating the proposed order’s “novel treatment of private equity defendants” for establishing a “valuable 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 Matter 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 principles.” (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 Administration’s antitrust legacy – even if Ferguson appears more sympathetic to mergers. (Statement of Chair Andrew N. Ferguson, Joined by Commissioner Melissa Holyoak & 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 Department of Justice (DOJ) (collectively, with the FTC, the “Agencies”), Assistant Attorney General for the Antitrust Division Gail Slater, appear to have embraced the Biden administration’s belief that antitrust laws should be “bulwarks” against “well-heeled interests ... wielding enormous not just economic power, but political 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? Keeping the Federal 2023 Merger Guidelines – the tightest in decades. (Id.)

A new “America First” antitrust

The decision to retain so much of the Biden Administration’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 Attorney 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 exclude competition. Today’s online platforms can do so much more. They control not just the prices of their services, but the flow of the US’s commerce and communication. ... They are key not only to the ordinary citizen’s free expression, but also to how elections are won or lost, and how US news is disseminated or not.” (Id.) In this light, “[c]ensorship,” per former Slater deputy Roger Alford, is thus “the downstream manifestation of monopoly power.” Likewise, Ferguson believes that “[t]he Commission must use the full extent of its authority to protect the free speech of all Americans” after investigating “the structural issues that may have given [Big Tech] platforms their power over Americans’ lives and speech in the first place” (Concurring Statement of Commissioner Andrew N. Ferguson, FTC v 1661, Inc., Matter No. 222-3016 (2 December 2024) (hereinafter, “1661 Concurrence”), positing reining in the “truly terrifying ... elites” is “of course” a “traditional concern of antitrust.”

FTC Commissioner Mark Meador likewise added that, contrary to the Bork-inspired consensus, the antitrust laws reflect a “firm insistence that the disaggregation of economic power is far more important to the country than efficiency in business.” (Mark R. Meador, Comm’r, Fed. Trade. Comm’n, “Antitrust Policy for the Conservative” 16-18 (1 May 2025).) As such, the Trump Administration’s enforcers argue, “[I]n a sense, it is true that Congress’s intent with the antitrust laws was to promote consumer welfare. It is just that Congress’s vision of consumer welfare does not align with Judge Bork’s” – much like the Biden Administration before it argued. (Id.; Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 720-21 (2017) (hereinafter, “Amazon’s Antitrust Paradox”).)

Thus, America First antitrust is cognisant of the same structural concerns as its President Biden-era counterpart. In this light, it is unsurprising that Khan counted Vice President Vance (for whom Slater once worked) among her fans, nor is it surprising that Trump Administration members are less deferential to purported efficiencies and defences of mergers and other conduct. While the underlying ideals surrounding the dangers of centralised private power remain paramount, interpretation is left to the current administration.

How did we get here?

The 2023 Merger Guidelines

“[H]undreds of federal decisions that date to the 1890s ... declare ... the purpose of the antitrust law to be combatting lower output or higher prices: the indicia of market power” and “nothing in this history suggests that merger policy under Section 7 of the Clayton Act was intended to differ from the other antitrust laws in this regard.” (See Herbert Hovenkamp, The 2023 Merger Guidelines: Law, Fact, and Method, 65 REV. INDUST. ORG. 39, 45 (2024).) Thus, antitrust scrutiny has long rested upon market power rather than strictly market concentration. (See Cargill, Inc. v Monfort of Colorado, Inc., 479 U.S. 104, 114-116 (1986); and F.T.C. v H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001) (“[M]erger enforcement, like other areas of antitrust is directed at market power.”).) Further, in many antitrust cases, even “the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.” (Verizon Communications Inc. v L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004).) The Federal 2023 Merger Guidelines (the “2023 Guidelines”), however, reflect a growing consensus among antitrust enforcers that the antitrust laws can – and should – expand such understandings and play a larger role in the US economy and society as a whole. It remains to be seen if regulators will convince the courts of the same.

The 2023 Guidelines were the linchpin or, perhaps, the embodiment of Biden-era antitrust enforcement. They are, in some respects, a modern-day antitrust paradox, simultaneously constituting a progressive break with long-standing antitrust policy and an “excessively nostalgic” step toward the policies of a “past era”. (See Hovenkamp, supra at 40.) Indeed, to “moderniz[e] merger enforcement,” the 2023 Guidelines draw from landmark Supreme Court cases of the 1960s and 1970s, like Brown Shoe Co. v United States, 370 U.S. 294 (1962), that are more hostile to mergers than modern jurisprudence. (US Department of Justice & Federal Trade Commission, Merger Guidelines, Section 2.5.A.2 n.30 (18 December 2023) (hereinafter, “2023 Guidelines”).) Such citations mark a deliberate departure from the theory, advanced in the seminal Antitrust Paradox by Judge Robert Bork and embraced by courts, that “the antitrust laws should be interpreted as designed for the sole purpose of forwarding consumer welfare” through lower prices or higher quantities. (Robert Bork, The Antitrust Paradox 71 (1978); see also Hovenkamp, supra at 45 (noting certain aspects of the “[t]he 2010 Horizontal Merger Guidelines [are] more consistent with the concerns of current merger case law” than the 2023 Guidelines).)

In Amazon’s Antitrust Paradox, a seminal work of the Neo-Brandeisian movement, then-future Biden Administration FTC Chair Lina Khan rejects that exclusive emphasis upon price and quantity in favour of a “much thicker conception of ‘consumer welfare’” conscious of a “host of political economic ends,” focusing on market structure and the competitive process, rather than just its outcomes. (See Amazon’s Antitrust Paradox, supra at 720–21.) That same attention to structure and competition appears in the 2023 Guidelines. To illustrate: the 2010 Horizontal Merger Guidelines presumed illegality of 5-to-4 horizontal mergers (mergers between competitors which reduce the number of competitors in the market from five firms of roughly equal size to four firms), whereas the 2023 Guidelines presume illegality in 7-to-6 mergers, reflecting a greater emphasis on preventing “the concentration of economic power in the hands of a few ... by keeping a large[r] number of small[er] competitors in business” than prior iterations.

The Biden Administration’s concern about private equity appears in its policies

Concern for a market’s structure naturally lends itself to an interest in its participants. Under the Biden Administration, however, that interest led to unease about the role and conduct of private equity in the marketplace.

From the administration’s outset, former Assistant Attorney General Jonathan Kantor, then head of the DOJ Antitrust Division, viewed policing buyout groups as “an extremely important part of [the Biden administration’s] enforcement program,” arguing the “business model” to “roll up an industry and essentially cash out” is “often very much at odds with the law and very much at odds with the competition we’re trying to protect.” Similarly, Chair Khan argued that “[b]y consolidating power gradually and incrementally through a series of smaller deals, [private equity] firms have sometimes sidestepped antitrust review. In the aggregate, these roll-up plays can eliminate meaningful competition and allow new owners to jack up prices, degrade quality, and neutralize rivals without competitive checks,” and called for greater enforcement.

Informed by those concerns, the Biden Administration sought to mitigate them. When announcing a review of the pre-existing merger guidelines, then-Chair Khan “spotlight[ed]” three topics. The first? Examining whether the existing guidelines were “adequately attentive to the range of business strategies and incentives that might drive acquisitions, including roll-up plays by private equity firms.” To combat anticompetitive roll-ups, the FTC also identified “a series of mergers, acquisitions, or joint ventures that tend to bring about the harms that the antitrust laws were designed to prevent, but individually may not have violated the antitrust laws” as a potential unfair method of competition under Section 5 of the FTC Act. (Fed. Trade Comm’n, Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act (10 November 2022).) Moreover, in June 2023, days before the DOJ and FTC would post a draft of the 2023 Guidelines, the Agencies proposed changes to the pre-merger notification form, associated instructions, and the pre-merger notification rules implementing the HSR Act. The proposed HSR changes also required acquirers to describe “all strategic rationales for the transaction” and provide information about certain officers and directors of the acquirer to avoid interlocking directorates, but, under certain circumstances, demanded that all parties report certain prior acquisitions to uncover serial acquisitions – all portending substantial consequences for private equity. (16 Code of Federal Regulations (CFR), Sections 801 and 803.)

Between the regulatory changes and the draft guidelines, it was clear that roll-up strategies (and private equity by extension) were no longer under the radar. Section 2.8 of the official 2023 Guidelines says so outright: the Agencies “may evaluate the series of acquisitions as part of an industry trend or evaluate the overall pattern or strategy of serial acquisitions by the acquiring firm.” Echoing then-Assistant Attorney General Kantor’s aforementioned concerns, the 2023 Guidelines further permit the Agencies to “examine a pattern or strategy of growth through acquisition by examining both the firm’s history and current or future strategic incentives,” including “in the markets at issue and in other markets.” (2023 Guidelines, supra at Section 2.8.)

States followed suit. Illinois, for example, enacted a “Baby HSR” law, 740 Ill. Comp. Stat. Ann. 10/7.2a, effective from 1 January 2024, extending quasi-HSR requirements to any healthcare facility or provider organisation headquartered in it, exempting certain out-of-state entities. (Id. at 10/7.2a(b).) Accordingly, many entities engaging in covered activity, when at least one party is Illinois-based and the transaction involves out-of-state entities that, post-merger, will generate at least USD10 million in revenue annually from Illinois patients, must now provide at least 30 days’ notice to the Illinois Attorney General, who may seek injunctive relief forbidding non-compliance. (Id. at 10/7.2a(d).)

Like the states, the Biden Administration then began using those tools to realise its proposed enforcement efforts, including against private equity. The Agencies launched a public inquiry to “identify serial acquisitions and roll-up strategies throughout the U.S. economy that have led to consolidation and harmed competition.” The Biden Administration advanced that mission in court, too. In September 2023, the FTC sued Welsh Carson and its portfolio company U.S. Anesthesia Partners (USAP), challenging USAP’s prolonged series of acquisitions in the Texas anesthesiology market. Alleging a number of violations, including, notably, Section 7 of the Clayton Act and Section 2 of the Sherman Act. (Compl., FTC v U.S. Anesthesia Partners, Case No. 4:23-cv-03560 (S.D. Tex. 21 September 2023).) Just days before President Trump’s inauguration, the DOJ filed a novel lawsuit against KKR, one of the largest private equity firms in the US, seeking civil penalties of up to USD51,000 per day in perpetuity, for allegedly violating the HSR Act. (Compl., United States v KKR & Co., Inc., et al., No. 1:25-cv-00343 (S.D.N.Y. 14 January 2025).) Put simply, private equity was under scrutiny from the Biden Administration’s beginning to its literal end.

More broadly, the Biden Administration’s view of private equity affected its overall approach to resolving such enforcement actions, too. Assistant Attorney General Kantor was particularly concerned that settlement divestitures “very often ... [involved] private equity firms [often] motivated by either reducing costs at a company, which will make it less competitive, or squeezing out value by concentrating [the] industry in a roll-up.” In such situations, he argued, “divestitures that were supposed to address a competitive problem have ended up fuelling additional competitive problems.” (Id.) Thus, Biden Administration enforcers thought divestiture less effective than attempting to block the deal outright, shrinking the enforcers’ toolbox. In turn, that led to more severe enforcement overall and fewer opportunities for private equity firms to acquire divested companies. (Id.)

A new antitrust consensus?

If both political parties are coalescing around a broader understanding of antitrust’s task, what explains occasional pro-merger statements from Slater or Ferguson? After all, they ostensibly deviate from the prior administration’s approach to enforcement. And what does it mean for private equity?

First, agreement on the task – policing aggrandisement of power – does not mean the Trump Administration agrees with the Biden Administration’s scope. The Sherman Act protects “all who are made victims of the forbidden practices by whomever they may be perpetrated.” (Reiter v Sonotone, 442 U.S. 330, 337-38 (1979) (quoting Mandeville Island Farms v Am. Crystal Sugar Co., 334 U.S. 219, 236 (1948)).) Much of the differences observed between President Trump and President Biden’s antitrust schemes may lie in their respective definitions of those whose interests are within their understandings of consumer welfare (or any other term) used to define whose interests are to be considered or protected. For example, the Biden Administration’s “merger analysis ... account[ed] for the differences between unionized and nonunionized workforces,” holding that the 2023 Guidelines make clear that mergers “that lessen competition in labor markets cannot be redeemed through benefits provided to other market participants.” Ferguson has vowed the FTC “will end Big Tech’s vendetta against ... free speech.” He reaffirmed the 2023 Guidelines and, nonetheless, the shift in interests considered may result in a shift in practices downstream.

Second, agreeing that antitrust must rein in corporate power does require agreement as to who has (or should have) it. That is, the difference may lie in each administration’s respective targets. The underlying law may remain consistent – both Slater and Khan have endorsed older Supreme Court precedents, and the 2023 Guidelines’ lower Herfindahl-Hirschman Index (HHI) thresholds and distrust of conduct remedies remain – but the firms or industries in the spotlight, to whom the law will be applied, may vary by administration. That will inevitably lead to different enforcement outcomes and remedies used. The Biden Administration’s suspicion of private equity led to fewer divestiture remedies and more litigation, prompting many companies to attempt “fix-it-first” DIY remedies or abandoning mergers and acquisitions altogether. (Synopsys Statement, supra at 5-6.)

The potential side effect of a divestiture remedy – private equity scooping up the divested company – was often thought to outweigh the cure. In contrast, even if it recognises the same ailment of consolidated power, the Trump Administration is more neutral toward private equity and, as such, more willing to order divestiture over litigation to cure it. Being less concerned with the buyer of a divested company means more opportunities to use a divestiture remedy, leading to more mergers and acquisitions downstream. Thus, even if the current administration has embraced some of the spirit of the Biden Administration (and the 2023 Guidelines embodying it), the Trump Administration may appear more merger-friendly by simply shifting the enforcers’ scrutiny elsewhere, like to online content moderation.

Ironically, however, this relative emphasis on divestiture requires more direct intervention than the Biden Administration’s view that the FTC lacks “the mandate to function as an industrial planner.” Ferguson admits some “sympath[y]” for that view, but maintains settlements “must be on the table ... to protect competition efficiently and as fully as [FTC] resources allow.” (Synopsys Statement, supra at 7.) Favouring structural remedies over behavioural ones, and ensuring divested businesses are able to compete, in his view, strikes an appropriate balance between protecting competition and FTC resources. In short, the administrations’ favoured remedies have different side effects and the Trump Administration’s preference is increased merger activity.

Looking ahead

At the moment, the impact on private equity is unclear and there are at least a couple of different paths that this may take in the coming years. Ferguson’s Welsh Carson concurring statement reflects this, writing that whether or not one party “is a private equity firm is irrelevant; the antitrust analysis would be the same if [the private equity firm] were, for example, an individual or institutional investor.” (Welsh Carson Concurrence, supra at 1-2.) One could resolve the matter using the “traditional approach to competition law” under Section 7 of the Clayton Act, he reasons, because it “prohibits mergers that may substantially lessen competition” in general. (Id.) In that regulatory light, private equity and serial acquisitions are not, as Ferguson writes, inherently “extraordinary.” (Id.)

On one hand, that private equity is out of the spotlight may cool tensions everywhere. The Biden Administration’s relative preference for litigation, paired with a more hostile view of private equity, led to fewer divestiture remedies and mergers. The Trump Administration appears to have trained its sights elsewhere, so divestiture will likely become more common, giving well-positioned private equity firms opportunities to acquire divested entities in the coming years.

On the other hand, like much of antitrust, the “traditional approach to competition law” is a matter of interpretation. Enforcers’ recent and broader understanding of consumer welfare is simultaneously old and new, much like courts’ post-Bork emphasis on allocative efficiency. (See Hovenkamp, supra at 45.) In his Welsh Carson statement, Ferguson spoke to the latter “traditional” approach embraced by courts, using price and output effects. But he also believes in another “traditional” approach, embraced by many modern enforcers, holding that Congress intended antitrust to protect far broader interests – just often different ones than the prior administration considered. Accordingly, private equity firms hoping to engage in serial acquisitions must be careful to justify every step along their paths in ways that survive both approaches as understood by both political parties – promoting economic efficiency and key non-monetary interests.

Indeed, the Attorneys General of Illinois and Minnesota recently joined the FTC’s lawsuit to prevent an acquisition by Chicago-based private equity firm GTCR BC Holdings (GTCR). Certain FTC appointees and Attorneys General praised the lawsuit, noting the role of private equity and loss of “options.” The FTC did not similarly criticise private equity, but did allege that the proposed acquisition would give GTCR control over 50% of the relevant market. Nonetheless, the lawsuit garnered a unanimous vote, showing how both political parties’ approaches to antitrust often intersect.

Thus, for now, the only certainty is that skilled counselling and a steady hand are more important than ever.

Author’s note: Thank you to William Weber for his assistance in preparing this article.