Trump Antitrust Enforcers Outline “America First” Antitrust Enforcement

Over the past few weeks, several Trump Administration antitrust enforcers at both the Federal Trade Commission (“FTC”) and U.S. Department of Justice Antitrust Division (“DOJ Antitrust”) have written or spoken about the direction of conservative antitrust enforcement policy.[1] FTC Chairman Andrew Ferguson penned an opinion editorial in the New York Post, highlighting the FTC’s efforts to subdue Meta’s “anticompetitive and monopolistic behavior” from its previous acquisitions of Instagram and WhatsApp in an ongoing trial, the Trump Administration’s ongoing deregulatory initiatives, and Chairman Ferguson’s focus on protecting “American workers . . . against anticompetitive requirements, wage-fixing conspiracies, and DEI collusion.”[2] The DOJ Assistant Attorney General (“AAG”) for Antitrust, Gail Slater, delivered her first formal address since her March confirmation at Notre Dame Law School, outlining the "Conservative Roots of America First Antitrust Enforcement.”[3] The speech highlighted the Trump Administration’s antitrust priorities, including conservative guiding antitrust principles and its approach to merger enforcement, application of the antitrust laws to labor markets, and a preference for litigation over regulation.[4] Newly confirmed FTC Commissioner Mark Meador also released a 33-page paper, titled, “Antitrust Policy for the Conservative,” in which he calls for conservatives to “reaffirm that concentrated economic power is just as dangerous as concentrated political power, and that rightly ordained political power is a necessary and appropriate tool for restraining excessive economic power and preserving liberty.”[5] Gone is the thought (or hope) that Trump Administration antitrust enforcers will be less enforcement-oriented than the Biden Administration, as a key theme throughout all three writings is the administration’s proactive approach to antitrust enforcement.

Highlights from Chairman Ferguson’s Opinion Editorial

Chairman Ferguson’s piece alludes to the current FTC request for public comment on burdensome regulations that stifle competition, entrepreneurship, and innovation that arises from President Trump’s recent Executive Order and highlights that the FTC’s ongoing suit against Meta.[6] Chairman Ferguson also delineates the “consequences of illegal concentrations of market power and anticompetitive behavior — lower product quality, higher prices, misleading job postings and poor customer service” and notes that enforcing the antitrust laws is key to President Trump’s economic vision.[7] Notably, the editorial seems to make clear that the markets should not expect a pulling back of enforcement under the current administration. Chair Ferguson’s writings make clear that he intends to vigorously enforce the antitrust laws—albeit in a different style than previous Chairwoman Lina Khan.

Highlights from AAG Slater's Address

AAG Slater, in her remarks at Notre Dame Law School, articulated “three core conservative values” that underpin the Trump Administration's approach to antitrust enforcement:

• American Patriotism: AAG Slater noted that the Trump Administration is focused on standing for “America’s forgotten consumers” and the “protection of individual liberty from both government and corporate tyranny.”[8]
• Textualism and Adherence to Precedent: AAG Slater discussed the Trump Administration’s commitment to the rule of law, binding precedent, and the original meaning of the statutory text of the antitrust laws.[9] She elaborated on how DOJ Antitrust will adhere to the statutory text when bringing enforcement actions because a “faithful humility to law’s limits is the cornerstone of much conservative legal theory.”[10] She noted that DOJ Antitrust will ensure the antitrust laws are applied as written, respecting historical interpretations and judicial precedents, because “[i]nnovations in economic theory and practice may shape more recent law, but they do not render older precedent a dead letter. That is the Supreme Court’s prerogative.”[11]
• Commitment to Law Enforcement: AAG Slater noted a preference for vigorous law enforcement via litigation over regulation.[12] She explained that the “America First conservatives’” preferred approach to “cure market ills” is to impose government obligations “only on parties that violate the law, and only for the limited time necessary to restore competition.”[13] AAG Slater also highlighted the DOJ’s Anticompetitive Regulations Task Force as part of the Trump Administration’s deregulatory initiatives.[14]

AAG Slater noted that there will be important debates on the weight that DOJ Antitrust should place on older versus newer precedent in its merger enforcement philosophy, alluding to the criticisms by some antitrust practitioners of the 2023 Merger Guidelines’ reliance on earlier case law to support more novel enforcement theories:

Those are important debates to have, and I have an open mind. But at the end of those discussions, our merger enforcement will apply our prosecutorial discretion based on the best interpretations of the laws on the books, and analysis of economic facts and data, respecting the original public meaning of the statutory text and the binding nature of Supreme Court and other relevant precedent. This is a deeply conservative position and there is nothing radical about it. To the contrary, what is radical is the notion that we should as antitrust enforcers ignore the text of the law and divorce ourselves from binding precedent, old and new alike.[15]

Despite criticism from some places that recent focus on labor markets was a novel extension of antitrust enforcement, Slater discussed favorably the application of conservative antitrust principles to labor markets.[16] Noting that the antitrust laws protect labor market competition and that conduct harming competition for workers can violate the spirit and letter of the antitrust laws, she committed to “stand[ing] up for workers when dominant firms impose restraints of trade, whether directly on workers or on the businesses who employ workers for them.”[17]

Highlights from Commissioner Meador’s Paper

In perhaps a foreshadowing of the approach he will take as a newly-minted Commissioner, Commissioner Meador outlines in his paper why he believes that “[f]ree markets are not self-perpetuating” and require “law enforcement to protect and maintain them.”[18] Commissioner Meador argues that conservatives should advocate for “interpreting and applying the antitrust laws in a way that preserves the priority of consumer welfare as the ultimate goal, but with an understanding of consumer welfare that actually focuses on consumers and an approach to legal and factual antitrust analyses that prioritizes avoiding false negatives over false positives.”[19] Commissioner Meador believes that Judge Robert Bork’s conception of consumer welfare is misleading, but it can be restored by correctly defining the term and recognizing that “consumer welfare, properly understood, is best suited to serve as the neutral principle that judges may apply while remaining faithful to the Constitution’s separation of powers.”[20]

Commissioner Meador argues for refocused use of economic analysis in antitrust policy and enforcement, noting that antitrust law is primarily “an exercise in law and policy and morality, not in economics.”[21] Commissioner Meador also calls for reexamining case law and conducting comprehensive merger retrospectives, noting that that his approach to consumer welfare may have resulted in different outcomes for many important Section 2 cases and arguing that the plain meaning of Section 7 of the Clayton Act is “clear that a merger should be blocked if there is reasonable likelihood that it will meaningfully reduce competition.”[22] Meador also calls for Congress to appropriate more resources for antitrust enforcement; statutorily cabin the use of economic evidence; codify his definition of consumer welfare as consumer or “trading partner” surplus; and reenact “a modern version of the Expediting Act so that important antitrust cases can more quickly reach the Supreme Court for review, providing greater clarity and certainty for market participants and allowing the law to develop without delay as markets and technologies change.”[23]

Key Takeaways

Focus on Labor Markets. Businesses should be aware of the FTC and DOJ's focus on labor market practices, which is an area that some previously predicted would not be a focus of Trump antitrust enforcers. Both Chair Ferguson and AAG Slater have made clear that the antitrust agencies will focus their efforts on protecting labor market competition.[24]

No Particular Focus on Private Equity. Although the Trump Administration has kept in place the 2023 Merger Guidelines and new Hart-Scott-Rodino premerger notification filing requirements, both of which had clear hostility and focus toward private equity strategies—like Sherlock Holmes’ “dog that did not bark in the night”—none of the three writings and speeches called out private equity or suggest increased focus on private equity activities.

Conservative Principles. The Trump Administration’s antitrust enforcement is deeply rooted in conservative values, emphasizing patriotism, textualism, and a strong commitment to law enforcement. In her address, AAG Slater stated, “Antitrust is a scalpel, and regulation is a sledgehammer. Free markets often fail, and one cannot wish away monopolies and cartels with false economic theories of self-correction. The scalpel is necessary to make targeted incisive cuts to remove the cancer of collusion and monopoly abuse.”[25] Commissioner Meador also noted his antitrust policy’s alignment with conservative values and faith to the text of the antitrust laws, stating that “Bork’s observation that the insertion of explicit political values into the antitrust analysis performed by courts is unconstitutional is unassailable. It rests on a foundational legal principle for American conservatives, that the role of the judge is to say what the law is, not what it should be.”[26]

Proactive Enforcement. It is clear from all three writings that the Trump Administration is committed to proactive antitrust enforcement, even if it takes a different form than we’ve seen in the past four years. Clients should expect continued scrutiny of mergers and business practices that may harm competition, though this administration’s enforcement agenda seems to be more likely to adhere to the letter and text of the antitrust laws and not push novel or untested enforcement theories. Though previous Republican administrations were thought by some—rightly or wrongly—to be less aggressive in enforcing the antitrust laws, it is clear that the Trump Administration intends to enforce the antitrust laws vigorously. In fact, none of the three Trump enforcers even hinted at agreeing with the premise that the previous administration’s antitrust officials brought too many merger litigations. All three enforcers seem to be making a statement that the current administration will not be afraid to bring cases in court as long as those cases remain faithful to the text of the antitrust laws.

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