New Federal Trade Commission Chair Andrew Ferguson said Tuesday that the Trump administration would continue using Biden-era guidelines to review proposed mergers and acquisitions. These guidelines are not legally binding, but they are an important tool that guides companies, courts, and agencies about how the FTC and Justice Department review whether deals harm competition.
The FTC and Justice Department’s joint merger guidelines from 2023 “are in effect and are the framework for this agency’s merger-review analysis,” Ferguson said in a memo to staff.
The merger guidelines— the first update to how the US government reviews mergers in more than a decade — encouraged tighter scrutiny of mergers’ impact on worker pay and online markets. They were part of the Biden administration’s aggressive approach to antitrust enforcement under FTC Chair Lina Khan and Justice Department antitrust chief Jonathan Kanter. The Biden administration challenged several major mergers, going after tech companies such as Google, Amazon, and Meta.
The FTC under Khan enraged business leaders, who accused the agency of stifling innovation and competition. Corporate America was happy to see Khan gone and salivated at the prospect of looser enforcement under Trump. Some predicted a new administration would unleash a wave of mergers.
“The merger guidelines were extraordinarily unpopular in the business community. They gave the government a lot of flexibility to bring cases,” said Vadim Brusser, an antitrust attorney at Sidley Austin. “There was thought that a Republican administration would potentially scale them back.”
It’s yet to be seen how Trump’s administration treats corporate tie-ups and interprets the 2023 merger guidelines.
Vice President JD Vance and a handful of other Republicans had praised Khan. And in addition to his announcement Tuesday, FTC’s Ferguson recently tapped a deputy known as an aggressive antitrust enforcer. The government has already moved to block Hewlett Packard Enterprise’s $14 billion acquisition of Juniper Networks, the first deal to be challenged by Trump’s antitrust enforcers and a potential bellwether for how the Trump administration will handle mergers.
Ferguson said the agency was keeping the guidelines to “prize stability” for both businesses and enforcement agencies.
“If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts. No business can plan for the future based on guidelines they know are one election away from rescission,” he said.
Advocates of stricter FTC enforcement were encouraged by Ferguson’s memo.
Tuesday’s announcement is “a pretty big step in the revival of antitrust,” said Nidhi Hegde, the executive director of the American Economic Liberties Project, a nonprofit organization. “It shows that there is bipartisan support for this approach to how we think about mergers and markets. That’s the signal that was sent.”
However, business allies and supporters of tech companies criticized the announcement.
“Unfortunately, the new Trump administration is doubling down on the highly flawed” merger guidelines, Joseph Coniglio at the Information Technology and Innovation Foundation, a technology think tank, said in a statement Tuesday. “These guidelines constitute a transparent attempt to reinstate a failed merger policy that harmed innovation, competition, and consumers.”
However, just because the FTC is keeping the merger guidelines does not mean Ferguson will challenge mergers as aggressively as Khan did, or that the Trump FTC’s enforcement priorities will be the same. It’s also possible there will be a hollowing out of resources at the FTC.
“I think what this signals is the current FTC would like all the tools that the 2023 guidelines offer them concerning enforcement,” Brusser from Sidley Austin said. “The FTC likes this quiver with all its arrows.”
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