The Trump administration’s antitrust enforcers will follow Biden-era merger review rules, disappointing critics who had hoped for a rollback of the requirements.
Leadership of the Justice Department and Federal Trade Commission, the two agencies involved with reviewing deals for antitrust implications, on Tuesday sent memos to staff saying that they would be adhering to the 2023 rules.
The guidelines were “consistent with the iterative, bipartisan approach” of previous versions and while not perfect, would remain in place, wrote Omeed Assefi, the acting assistant attorney general for antitrust at the Justice Department.
In his own memo, FTC chair Andrew Ferguson said maintaining consistent standards for merger reviews is key for the business and legal community.
“If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts,” he wrote. “No business can plan for the future on the basis of guidelines they know are one election away from rescission, and no court will rely on guidance that is so obviously partisan.”
The guidelines were adopted in December 2023 by the Biden administration, replacing both 2010 guidance on mergers between direct competitors and 2020 rules by the first Trump administration on so-called vertical deals, which involve companies that operate in the same supply chain but don’t compete directly. The US Chamber of Commerce and other business groups criticised the guidelines, saying they would chill merger activity.
Since their adoption, the rules have been cited favourably by several courts, including in the FTC’s successful challenges to the deal between Kroger Co. and Albertsons Cos. and Tapestry Inc. and Capri Holdings Ltd.
In written responses to senators also made available Tuesday, Gail Slater — Trump’s nominee to head the Justice Department’s antitrust division — said she agreed with maintaining the 2023 rules.
“It is critical to the antitrust division’s law enforcement mission that its guidelines reflect the original meaning of the applicable statutory text as interpreted by the binding rulings of the courts,” she wrote.
“The merger guidelines have been revised periodically when time and experience suggest changes are necessary, but when revisions are undertaken a careful and transparent process should be used to ensure our guidelines maintain the stability needed for rules of the road to serve their purpose,” Slater continued.
Slater appeared before a Senate panel last week, but still requires a vote from the full chamber before her nomination is confirmed.
Joel Thayer, president of think tank Digital Progress Institute, called criticism of the 2023 guidelines “overblown.”
The rules are “very much a textualist perspective on antitrust” that seek to “outline what current law is,” said Thayer, who is also a member of the conservative legal group The Federalist Society. “If the Trump administration is to stand for law enforcement, understanding the law and having guidance that says it will enforce the law is preeminent.”
By Leah Nylen
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US Court Blocks Tapestry’s $8.5 Billion Acquisition of Rival Capri
The FTC argued at an eight-day trial in New York that the merger would eliminate fierce head-to-head competition between the top two US handbag makers.
