Antitrust Under Trump: June 2025 Updates

THE RETURN OF STRUCTURAL REMEDIES

• The FTC and DOJ have made good on their promise to accept structural remedies to address antitrust concerns, and they have announced consent decrees involving requirements to divest specific product lines to experienced divestiture buyers in two transactions in the technology industry. The agencies emphasized the importance of “clean” divestitures and strong divestiture buyers in discussing the settlements.
• The two consent decrees stand in contrast to the Biden administration (which had not accepted a prelitigation divestiture since 2022) and its policies disfavoring antitrust remedies.

AGENCIES SUPPORT RESOLUTION OF MERGER CONCERNS THROUGH TRANSPARENT SETTLEMENTS 

• A representative from the DOJ emphasized the agency’s preference for settlements under the Tunney Act at a conference on June 4. Such settlements involve the agency filing a public complaint and a statement of how the proposed remedy would resolve anticompetitive issues.
• The DOJ representative went on to explain that the transparency involved in Tunney Act settlements is beneficial to the public and that proposed fix-it-first settlements also should be approached with transparency to allow the public to comment on the deal and to provide clear guideposts for parties. The representative emphasized the DOJ’s interest in encouraging transparency in all parts of the merger review process and criticized Biden-era procedures under which the agency allowed parties to resolve matters with divestitures outside of the formal consent order process.
• An FTC representative at the same conference laid out the principles the Trump administration will apply in examining divestiture proposals, explaining that the agency prefers divestiture of standalone businesses.

COMMISSIONER HOLYOAK IS SKEPTICAL OF LACKLUSTER MERGER REMEDY PROPOSALS

• Despite statements from the antitrust agencies that strong divestiture proposals would be well-received, FTC Commissioner Melissa Holyoak emphasized in a speech that the FTC will not hesitate to litigate against the fix when a proposal is inadequate.
• Holyoak pointed to recent divestiture remedies to explain that the FTC would be taking its time to evaluate proposed merger remedies and would add additional requirements to ensure the ultimate remedy is effective.
• Holyoak also discussed the important aspects the FTC may consider when determining whether a divestiture buyer is suitable, including experience with the industry, financial soundness, existing relationships with customers of the divestiture assets, and a track record of successful acquisitions.

DOJ INTENDS TO PROVIDE CLARIFICATION FOR THE 2023 MERGER GUIDELINES

• Principal Deputy Assistant Attorney General of the DOJ Antitrust Division Roger Alford has stated that there is a need for clarity on the 2023 Merger Guidelines, pointing out the uncertainty of how the guidelines would be applied by the courts and whether the administration could enforce them.
• Speaking at a May 21 event, Alford explained that providing more clarity regarding market thresholds that trigger a presumption of merger illegality is one of the provisions that may require further explanation. These thresholds of concern were lowered in the 2023 Merger Guidelines, which substantially lowered the threshold for transactions being deemed presumptively unlawful.

COMMISSIONER MEADOR IS SKEPTICAL OF INNOVATION AS A DEFENSE FOR TECH DEALS

• FTC Commissioner Mark Meador expressed apprehension over antitrust defenses typically presented by merging parties to justify their proposed transactions at a recent antitrust conference.
• Meador criticized the use of “innovation” as a broad-strokes argument to justify vertical mergers that present anticompetitive concerns, claiming that innovation is “a floating abstraction” and a “kitchen sink ‘innovation defense’” that helps merging parties avoid scrutiny.
• Meador went on to emphasize the importance of the antitrust agencies taking the time to distinguish genuine product improvements through innovation from conduct that excludes rivals or forecloses competition.

DOJ CONTINUES TO PROMOTE REACHING MERGER DECISIONS QUICKLY

• Assistant Attorney General Gail Slater highlighted the early responses to the Trump administration, including 36 early terminations since March 1, at the International Competition Network Annual Conference.
• Slater also mentioned that the DOJ has been looking for additional ways to speed up the merger review process outside of the reintroduction of early termination, and she restated the new administration’s openness to approving robust settlements that include structural remedies.

FTC PLANS TO CUT WORKFORCE AGAIN

• FTC Chair Andrew Ferguson told the House Appropriations Committee on May 15 that FTC staff need to be cut further to bring the total staff down to around 1,100 employees, pointing to the fact that the agency had been paying employee salaries using carryover funds.
• These cuts would return the FTC workforce to the same number of workers it had before the Biden administration and would represent a 15% reduction in employees.
• Ferguson also discussed the FTC’s planned cost-saving cuts to non-staff-related expenditures, including real estate and facilities.

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.