President Trump’s new Federal Trade Commission chairman Andrew Ferguson is keeping in place stricter Biden-era standards for policing US mergers, the latest sign that American companies won't get a free pass when it comes to big acquisitions.
In a post on X Tuesday Ferguson said he informed his FTC staff that merger guidelines fashioned by the Biden administration were in effect and would serve as the "framework" for the agency’s merger-review analysis.
The guidelines, which are not legally binding, were adopted in 2023 during the tenure of Ferguson’s controversial predecessor Lina Khan, who aggressively pushed to broaden the circumstances under which regulators and courts could block vertical and horizontal mergers.
They take a more rigorous approach by expanding the conditions that trigger antitrust review, like lowering thresholds for presuming a proposed merger violates antitrust law, and considering a tie up’s labor market impact.
The new guidelines also omit mention of consumer welfare as the primary standard for review, a departure from prior approaches. The guidelines broke additional new ground by scrutinizing common ownership and how mergers might affect competition among different technology platforms.
"It was really a recalibration of antitrust …across the board," University of Tennessee College of Law professor Maurice Stucke, told chof360 Finance in December.
Stucke said the guidelines reflect increasing bipartisan support for stepped up antitrust enforcement that began during Trump’s first term.
"Even though antitrust may not be the same under Trump as it is under Biden, it's not going to go back to the way it was."
Between fiscal years 2017 and 2019, a period that roughly corresponds with Trump’s first three years in office, the DOJ and FTC brought 118 M&A challenges, according to annual reports issued by the agencies.
That was a higher cumulative total than the 108 brought between fiscal years 2021 and 2023, a period that roughly corresponds with Biden’s first three years in office.
Biden, however, did achieve the highest single-year total of 50 merger challenges in fiscal 2022 — the largest annual count in more than two decades.
There have been other early signs of antitrust aggressiveness by the new Trump administration. Trump's Justice Department has already filed a lawsuit seeking to block Hewlett Packard (HPE) from acquiring rival Juniper Networks (JNPR).
The DOJ alleged that the $14 billion tie-up of the nation’s second- and third-largest providers of enterprise wireless networking would substantially lessen competition in that market.
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