Biden-Era FTC Merger Guidelines Maintained by New Chair Andrew Ferguson
In a move signaling continued scrutiny of US mergers, the Federal Trade Commission (FTC) under Chair Andrew Ferguson has retained stricter Biden-era standards for merger policing.
Ferguson stated that merger guidelines implemented by the Biden administration would serve as the agency's "framework" for merger review. These guidelines, while not legally binding, broaden the circumstances for antitrust review by:
* Lowering thresholds for presuming a merger violates antitrust law
* Considering a merger's labor market impact
* Scrutinizing common ownership and competition among technology platforms
The guidelines depart from previous approaches by omitting consumer welfare as the primary review standard.
University of Tennessee College of Law professor Maurice Stucke noted that the guidelines reflect bipartisan support for increased antitrust enforcement. Despite potential differences in antitrust policy between the Trump and Biden administrations, the elevated enforcement level is expected to remain.
During Trump's first three years in office, the DOJ and FTC brought 118 merger challenges. Biden's first three years saw 108 challenges, including a record 50 in fiscal year 2022.
The new Trump administration has also displayed antitrust aggressiveness. The Justice Department is currently challenging Hewlett Packard Enterprise (HPE) acquiring rival Juniper Networks (JNPR), alleging the deal would reduce competition in the enterprise wireless networking market.