Introduction
With only a week having passed since the 2024 Presidential Election, we find ourselves awash in speculation about what a Second Trump Administration (Trump 2.0) portends for the United States and for the world. This client alert limits itself to providing some preliminary thoughts about the potential direction of antitrust enforcement under Trump 2.0.
President-elect Trump’s actions are not always easy to predict, and his instincts about how to use the tools of antitrust are no exception. Antitrust did not feature in the election campaign, and antitrust may be low on the list of priorities for a new Trump Administration. Immigration, trade, taxes, and environmental regulation are likely to be the priorities for Trump 2.0, as confirmed by the first personnel picks announced by the President-elect and his advisors.
Even if antitrust is low on the list of priorities for the incoming Administration, nevertheless we expect some pullback from the antitrust agenda pursued by the Biden Administration. This pullback would reflect: i) the intense opposition that aspects of the Biden antitrust agenda provoked for Republican appointees on the Federal Trade Commission (FTC) who have issued fierce dissents and even resigned in protest as well as Republicans on the Hill (exemplified in the strong criticism of the leadership of FTC Chair Lina Khan); ii) opposition from the financial and technology sectors generally, two sectors whose views may be influential under a new Trump Administration given the support that President-elect Trump received from key players in these industries; and iii) the influence of "traditional" Republicans who strictly prefer a less adventurous antitrust policy in which the consumer welfare standard and robust economic analysis remain the bedrock principles.
Given this context, we see some prospect that a new Trump Administration would modify President Biden-era initiatives such as HSR Reform, roll back the more controversial aspects of the 2023 Merger Guidelines, repeal the 2024 FTC rule banning employee non-competes, cease all competition rulemaking, and jettison the Biden Administration’s signature "whole of government" approach to antitrust to the extent it increases regulatory burdens on U.S. companies.
While our expectation is for more continuity than radical change, the new Trump administration could pursue a more sweeping deregulatory agenda affecting antitrust, including cutting funding and staffing of the antitrust agencies. On November 12, President-elect Trump announced that Elon Musk and Vivek Ramaswamy would lead a new Department of Government Efficiency (DOGE), designed "to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies."1 We don’t know if DOGE has the antitrust agencies in its sights. But if it does, with fewer staff and slimmer budgets, antitrust enforcement must necessarily decline.
After the dramatic shift in tone under the Biden Administration, we also cannot rule out antitrust enforcement continuing to be used as a tool to achieve the preferred economy-wide outcomes of the new Administration. In this scenario, the Administration could focus enforcement actions on certain companies and sectors over others and use antitrust policy to foster the interests of U.S. champions at the expense of foreign competitors.
Countercurrents Suggesting a Steadier Course on Antitrust Policy
Against the strong currents favoring a less aggressive enforcement posture than the Biden Administration’s, there are countercurrents suggesting that antitrust enforcement could be an exception to a broad deregulatory agenda pursued under Trump 2.0. In this scenario, the more adventurous parts of President Biden’s antirust agenda could be trimmed, but antitrust enforcement would remain broadly on track. Why do we say this?
To start, the approach to antitrust in the first Trump administration may provide clues to Trump 2.0. Under the first Trump Administration, we witnessed strong merger enforcement, including in vertical cases, and the agencies opened prominent monopolization investigations in the tech sector, initiating investigations of Google, Apple, Meta, Amazon, and others, leading to several court challenges. If Trump 2.0 looks like the first Trump Administration when it comes to antitrust, then the changes in enforcement levels are likely to be moderate.
Another reason for thinking that antitrust enforcement will not completely retrench is that there is bipartisan support for robust antitrust enforcement, particularly against companies perceived to wield significant market power. The right and the left both fear large tech platforms, not only for their economic power, but for their political and cultural power. In the last decade, investigations and litigation against large tech platforms gained support not only from the federal agencies under both President-elect Trump and President Biden, but also from a bipartisan group of State Attorneys General (AGs).
Third, the election revealed that a wide swath of voters were concerned about the high cost of living and their declining purchasing power. If Congress and the new President wish to be seen as responding to the economic concerns of a large part of the electorate, effective antitrust enforcement may be touted as an important policy tool (even if the Biden Administration’s aggressive stance did not seem to resonate with many voters), particularly in sectors such as consumer retail (including food), housing, healthcare, agriculture, transportation, and energy.
Fourth, even if we see a pullback in antitrust enforcement under Trump 2.0, some activist State AGs are likely to step up to pursue policies that vary from the Trump Administration. In the early days of the first Trump administration, we witnessed several State AGs do just that. The State AGs, however, lack the resources to fill the void if the federal agencies face a considerable reduction in force.
Below are some predictions about changes that might occur to antitrust enforcement under Trump 2.0, some obvious and others more conjectural at this stage.
Transitional Staffing and Leadership Changes
Ronald Reagan's director of presidential personnel reportedly remarked that "Personnel is policy." Once key leadership of the antitrust agencies is announced, we can be more confident of the likely direction of policy. Below we outline the immediate changes to the agencies that will occur with the transition to a new administration.
Antitrust Division
As is normal with any change of administration, the Assistant Attorney General (AAG) for Antitrust, Jonathan Kanter, his deputies, and their attorney-advisors, all of whom are political appointees, will resign by Jan 20, 2025.
If he is confirmed by the Senate, the direction of the Antitrust Division could be determined by President-elect Trump’s nomination of Rep. Matt Gaetz to be the next U.S. Attorney General. For his part, Rep. Gaetz has expressed some support for current FTC Chair Khan and the cases the FTC has brought against large businesses under her leadership. Pending confirmation of and a new head of the Antitrust Division, a career U.S. Department of Justice (DOJ) lawyer may become acting head. The traditional choice is the Deputy AAG focusing on criminal antitrust, a post which is currently held by Manish Kumar, a veteran of the San Francisco field office of the Antitrust Division, who was promoted in both the Trump Administration (to chief of that office) and the Biden Administration (to his current position). The administration could also decide to install a political appointee to serve as acting head, something which occurred in May 2018 of the first Trump Administration. Given the stated desire to assert firm control over career civil servants, we think it likely that a political appointee will serve as acting head of the Antitrust Division pending senate confirmation of a new AAG for Antitrust.
FTC
Although she has garnered some praise from a few Republicans including, notably, JD Vance and Rep. Gaetz, Chair Khan has been the subject of intense criticism from Republicans at the FTC and in Congress, as well as from influential figures in Silicon Valley. News services report that aides to JD Vance are already considering whom to nominate to replace Chair Khan as Commissioner and Chair. As such, it is very likely Chair Khan will follow tradition and resign as Chair and Commissioner, leaving the Commission with two Democratic commissioners and two Republican Commissioners until a new Commissioner is confirmed by the Senate to fill the open seat left by Chair Khan.
Although one of the Republican Commissioners will be appointed Acting Chair upon President-elect Trump’s inauguration, the Chair has the same number of votes as other Commissioners. This means that there will be a period where an FTC would be unable to take enforcement actions or rescind previous agency actions if it is split 2-2.2
How long the FTC remains in this position depends entirely on the speed with which the administration can have the Senate confirm its nominee for the open Commissioner slot. In the prior Trump administration, it took over a year until President-elect Trump’s selected FTC Chair was confirmed and sworn in. Similarly, under the Biden Administration, it took six months to confirm Chair Khan as a Commissioner. The President-Elect has publicly pressured Republican senators to move swiftly to confirm all personnel he nominates, so it is possible that appointments may be accelerated compared with prior administrations, particularly given the large Republican majority in the Senate.
Changes to Merger Enforcement
Although Trump 2.0 is likely to retreat from the outright hostility to mergers and corporate concentration that marked the Biden era, we do not expect a laissez-faire approach to merger policy. There is some bipartisan concern that too lax an approach to merger policy has created a concentration problem in some sectors in the U.S. economy, and that excessive concentration may have increased price pressures and exacerbated income inequality.
In spite of some bipartisan support for continued scrutiny of corporate consolidation, our intuition is that there will be some loosening of merger scrutiny, but that the effect is unlikely to be uniform across sectors. Because of concerns about the high cost of living for many U.S. consumers, we expect continued scrutiny of mergers in consumer retail (including food), agriculture, pharmaceuticals, healthcare, transportation, and housing. By contrast, we are more likely to see easing of merger policy, especially actions targeting vertical mergers and other non-traditional theories, in energy, financial services, industrials, and, possibly in technology and media.
In terms of concrete change to Biden-era policies on merger enforcement, we identify the following areas as prime candidates for modification.
2023 Merger Guidelines
One of the most ambitious and controversial initiatives of the Agencies under the Biden Administration was to withdraw the merger guidelines and comprehensively rewrite them. Many antitrust scholars, economists, and lawyers have criticized the 2023 Merger Guidelines as too ideological and regressive; an attempt to return merger enforcement to the state it was in the 1960s, demoting the role of economics in merger review and ignoring important later precedents from the U.S. Supreme Court and lower courts.
The 2023 Merger Guidelines also somewhat controversially introduced a new Guideline relating to the competitive effects of mergers on labor, a focus which could change under a new administration. The new Guidelines also lowered the market concentration thresholds for presuming anticompetitive harm, as well as clarified the approach to potential competition analysis and acquisitions of nascent competitors by dominant firms.
We expect that a new administration will revisit the 2023 Merger Guidelines, either by issuing revisions, replacing them altogether with Guidelines more consistent with the 2010 Merger Guidelines and their forebears, or by making policy statements that suggest they will not enforce some of the more controversial aspects of the Guidelines.
HSR Reform
One of the final initiatives of the Biden Agencies was to finalize the most significant changes to the HSR Rules since the enactment of the HSR Act in 1976. Although the final rules issued by the FTC were not nearly as radical and burdensome as the draft rules initially proposed, and some updates to the rules were needed, the new rules will significantly increase the burden on merging parties. If the new administration wishes to make good on its promise to reduce regulatory burdens on business, then it is possible that the new rules could be delayed, if not modified or repealed altogether.
As it stands, the final HSR rules were published in the Federal Register on November 12, meaning that they will enter into force on February 10, 2025, unless action is taken to delay the rules.
We expect that there will be a delay. Each of the three previous administrations directed agency heads to delay the effective date of new rules by 60 days so that the new administration could review pending rules and, if necessary, take actions to modify or repeal them.
Assuming the incoming Trump administration provides the same direction to agency heads as prior administrations to pause implementation of new regulations, the new acting Chair of the FTC may try to delay the effective date of the new HSR Rules by 60 days, though it is not clear that is possible without a Republican majority in place. Apart from delay, there is also some prospect that the FTC majority appointed by the new president will withdraw or modify the new HSR rules, but that will depend entirely on the timing of FTC appointments, the proclivity of the new FTC majority to do so, and whether the DOJ consents.
Tech Scrutiny Will Remain an Enforcement Priority
Some commentators have speculated that the tech sector may have an easier time under Trump 2.0, citing the prominent support that Silicon Valley heavyweights such as Elon Musk provided to President-elect Trump’s reelection campaign. Broad popular support for antitrust challenges to successful U.S. technology firms has always appeared lacking, as witnessed in the failed attempts to target tech on Capitol Hill when AICOA and other antitrust reform bills were introduced in the 117th Congress. A new Trump Administration may prefer to promote the interests of U.S. companies in the tech sector, including in emerging areas such as AI.
As noted above, however, many conservatives have concerns about the cultural and political power of dominant tech platforms. For example, the Heritage Foundation’s Project 2025 report, which some have pointed to as a template for Trump 2.0, expresses these concerns. The Project 2025 authors state that “the interference of large internet firms with democratic political discourse” is undermining “liberal democracy, a truly open society, and, indeed, the rule of law.”3Vice President-Elect JD Vance has also been a vocal critic of Big Tech, and one of his economic policy advisors, Gail Slater, a veteran of the FTC and the Trump White House, appears set to play a key role in antitrust policy in the next administration.
Given the concerns of prominent conservatives and the track record of the first Trump administration in bringing challenges against Google and Meta that have so far found favor in the courts, we do not expect antitrust scrutiny of Big Tech to dissipate, although it could moderate. As a practical matter, the real question for the incoming Administration is whether to revise or withdraw any of the already-filed lawsuits against the largest tech companies. We suspect that a middle-of-the-road approach may prevail with some of the most novel theories trimmed back.
FTC Non-Compete Ban and Any Future FTC Competition Rulemaking Likely to Be Killed
A signature initiative of Chair Khan’s FTC was its adoption in April 2024 of a rule that would ban most non-compete agreements in employment agreements. The FTC rule was adopted by a 3-2 vote, with the two Republican Commissioners dissenting on the ground that the agency lacked authority to issue competition rules at all and that this particular rule was unsupported.
Many have questioned whether the FTC exceeded its regulatory authority in enacting this rule, including most recently a blistering report from the House Committee on Oversight and Accountability.4The non-compete ban has been preliminarily enjoined by two federal judges, and these cases are now on appeal to the U.S. Court of Appeals for the Fifth Circuit and the Eleventh Circuit. Several State Attorneys General, both Republican and Democratic, have also objected to the FTC’s attempts to regulate employment contracts that have traditionally governed by State law.
Although there appears to be popular support for banning non-competes, particularly among salaried workers and professionals, we believe the FTC’s ban on non-competes has no future in a second Trump administration. The new administration has several options to kill the FTC’s non-compete ban: it could withdraw the appeals in the pending federal court challenges, resulting in the ban being permanently enjoined. Alternatively, the new administration has several administrative and legislative avenues to repeal or modify the ban and to clarify that the agency lacks competition rulemaking authority more broadly.
No More “Whole of Government” Approach
One innovation of the Biden Administration was Executive Order 14036,5established a “whole of government approach” to competition coordinated by a White House Competition Council.
The Biden Administration’s “Whole of Government” approach was pilloried in the recent report on the FTC issued by the House Committee on Oversight and Accountability. Given President-elect Trump’s announcement this week that his team would be seeking to dismantle the federal bureaucracy, the days of the “whole of government approach” to antitrust appear to be numbered.
No Changes to Cartel Enforcement, No-Poach, Information-Sharing, and Algorithmic Pricing
Hard-core cartel enforcement has been a priority for every administration, and we expect no change of priority under Trump 2.0. Since 2016, the DOJ has also pursued wage-fixing and no-poach agreements as per-se criminal offenses, although the DOJ has had little success in securing convictions. Despite these losses, we also do not foresee the DOJ under Trump 2.0 adopting a more tolerant approach to wage-fixing and no-poach agreements. It is also conceivable that, as part of an administration drive to reduce waste and inefficiency in government spending, the DOJ pursues the enforcement priorities outlined by the DOJ in the Procurement Collusion Task Force, as established under the prior Trump administration.
Under the Biden Administration, the DOJ has also taken a more aggressive approach to information sharing and algorithmic pricing. The DOJ has brought cases against Agri Stats and RealPage, has withdrawn “outdated” guidance on information-sharing safe-harbors, and has also filed statements of interest in private cases relating to algorithmic pricing. Concerns about information-sharing and algorithmic pricing, however, predate the Biden administration. We note for example, that concerns about algorithmic pricing were on the minds of enforcers during the first Trump administration.6As such, while it is hazardous to predict, we expect that the DOJ under Trump 2.0 will continue the Biden Administration’s stricter scrutiny of information-sharing and algorithmic pricing.
The Environmental, Social and Governance (ESG) movement, already on the retreat in the U.S., will likely be a target of the new administration’s deregulatory agenda. We expect to see SEC rules on ESG disclosure watered down, and new SEC leadership move to restrict ESG-related shareholder proxy proposals. Given that ESG appears to be disfavored by new administration, we may also see the antitrust agencies heighten their scrutiny of sustainability collaborations between competitors and shareholder activists. The Heritage Foundation’s Project 2025 report, for example, calls for the FTC to establish an “ESG/DEI collusion task force to investigate firms” to see if they are using ESG/DEI practices “as a means to meet targets, fix prices, or reduce output.”7
Conclusion
It is difficult to predict much about the direction of the incoming Trump Administration. Nevertheless, we think it unlikely that the new administration will adopt a laissez-faire approach to consolidation or a hands-off approach to Big Tech. While we expect a pull-back from signature Biden Administration initiatives (such as the 2023 Merger Guidelines and the FTC’s ban on non-competes), we expect there to be more continuity than a dramatic change in approach. Although it would be an unwelcome development, it is also possible that antitrust becomes defunded as part of a radical push for deregulation, and/or that antitrust continues to become more politicized compared with norms in prior administrations.
For further information, please contact any member of the antitrust and competition practice at Wilson Sonsini Goodrich & Rosati.
[1] Statement from President-elect Donald J. Trump, Nov 12. 2024.
[2] Under the Federal Trade Commission Act, there must be a majority of Commissioners voting in favor for the FTC to pursue an enforcement action.
[3] Heritage Foundation, 2025 Presidential Transition Project, p. 871.
[4] https://oversight.house.gov/wp-content/uploads/2024/10/HCOA-Majority-Staff-Report-FTC-Investigation.pdf.
[5] 86 Fed. Reg. 36987 (July 14, 2021).
[6] See https://www.ftc.gov/system/files/documents/public_statements/1220893/ohlhausen_-_concurrences_5-23-17.pdf.
[7] Heritage Foundation, 2025 Presidential Transition Project, p. 875.
