Antitrust Under Trump: May 2025 Updates

US House Panel Considering One Agency Act to Eliminate FTC Competition Authority

• A Republican-sponsored bill seeking to consolidate agency antitrust powers, the One Agency Act, was scheduled to be marked up by the US House Judiciary Committee.
• The bill would allow the antitrust agencies one year to implement the transition, wherein the FTC will transfer its antitrust functions, employees, assets, and funding to the DOJ’s Antitrust Division.
• The bill also allocates funding for the consolidation of the two agencies, and it grants the DOJ the power to require businesses to file annual or special reports – or answers in writing to specific questions – about their organization, practices, management, and relationships with other businesses. This new power mirrors the FTC’s ability to conduct industry studies to better understand competition in those industries.

Commissioner Holyoak Wants More Early Termination Requests

• To achieve a friendlier merger review process and create a more predictable antitrust environment through the granting of early termination, FTC Commissioner Melissa Holyoak reminded parties at a University of California, Berkeley, forum that the FTC will grant early termination requests where possible.
• Concerned that merging parties might be “gun-shy” about submitting for early termination, Holyoak explained that the requests will help reduce the workload of FTC staff and help parties close transactions sooner.

THE CONTINUING SAGA OF THE FIRED FTC COMMISSIONERS

Democratic Attorneys General Support Terminated FTC Commissioners

• As we reported earlier, FTC Commissioners Rebecca Slaughter and Alvaro Bedoya filed a lawsuit against President Trump and the remaining FTC commissioners, claiming that their termination was unlawful because Supreme Court precedent from 1935 in Humphrey’s Executor protects FTC commissioners from removal by the president for political reasons.
• Attorneys general from 20 states as well as the District of Columbia have filed a joint amicus brief in support of former FTC Commissioners Slaughter and Bedoya.
• The amicus brief argues that President Trump’s termination of Slaughter and Bedoya violates long-standing federal law preventing the removal of FTC commissioners by the executive office for reasons other than inefficiency, neglect of duty, or malfeasance in office.
• The brief went on to argue that the FTC was deliberately established by Congress as an independent and bipartisan body, and that the FTC’s bipartisan nature is a vital part of its success.

Trump, Remaining FTC Commissioners Argue to Uphold Termination of Former Commissioners Slaughter and Bedoya

• In response to Bedoya and Slaughter’s motion for expedited summary judgment, Trump and Commissioners Ferguson, Holyoak, and Meador filed a brief arguing that the more recent Supreme Court opinion in Seila Law made Humphrey’s Executor removal restrictions unconstitutional because Congress may not restrict the president’s power to remove officers of agencies exercising executive power.
• In their brief, Trump and the commissioners argued that the FTC today exercises substantial executive power – such as the ability to seek injunctions, conduct investigations, and impose monetary penalties – that the FTC in 1935 did not exercise because its authority was limited to preparing reports and recommendations on unfair competition for Congress and the judiciary.
• They also argued that Slaughter and Bedoya’s seeking of reinstatement rather than backpay is unwarranted and that the president should not be forced to retain officers performing executive functions that he no longer believes should wield that power
• Twenty-one other states have filed papers arguing in support of Trump’s authority to dismiss the commissioners, including the Arizona State Legislature, despite the Arizona attorney general joining the amicus brief against the terminations.

FTC Offering Staff Deferred Resignation Program

• The Office of Personnel Management has granted the FTC the ability to offer buyouts to eligible FTC employees through the Voluntary Early Retirements or Voluntary Separation Incentive Payments programs.

Chair Ferguson Objects to Comparison to Lina Khan

• In an editorial, The Wall Street Journal editorial board compared FTC Chair Andrew N. Ferguson to former Chair Lina Khan, pointing to the new administration’s support of continued antitrust regulation of American business. Ferguson vigorously disagreed with the comparison.
• Ferguson, speaking at the Semafor World Economy Summit, explained that though he, like Khan, believes in strong antitrust enforcement where he thinks a merger is anticompetitive and he can prove it in court, he distinguished himself by saying that if those things are not true, he will get out of the way and will not abuse the process to dry up deal flow as the previous administration did.

Slater Doubles Down on “America First Antitrust”

• In her first public address as the assistant attorney general of the Antitrust Division, delivered at Notre Dame Law School, Slater echoed her own earlier statements regarding the new administration’s interest in promoting populist or “America First” antitrust policies.
• “America First Antitrust” will support the needs of “forgotten” workers and consumers, small businesses, manufacturing, and family-owned agribusiness, according to Slater.
• She went on to say that deregulation and transparency are key to these efforts, asserting that federal regulations impede the benefits of a free market, and that antitrust enforcement should be understandable to everyone, even farmers in Indiana or Iowa.

As the Trump administration’s approach to antitrust takes shape through political appointments, policy statements, speeches, and enforcement actions, McDermott’s antitrust team continues to track new developments. We are providing important updates on issues pertinent to clients. Stay tuned for more at-a-glance reviews of relevant policy as it is being created.

Our earlier insights on antitrust under the Trump administration can be viewed here.