Trump's Antitrust Policies Still Coming Into Focus
The antitrust policies of President Donald Trump's second administration continue to take shape, though it's expected that the FTC and DOJ will be less aggressive in rejecting mergers compared with Joe Biden's administration, experts said Tuesday during an Information Technology and Innovation Foundation webinar.
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Antitrust regulators today face a different challenge than those of the past, with little direction from Congress about doing their jobs, former FTC Chairman Timothy Muris said. In the 20th century, Congress passed legislation and members were known by the bills attached to their names, Muris said. Not only are fewer significant bills passed today, but those that are approved “are often written at the very highest levels of Congress, not even by committee chairs.”
Lina Khan, the Democrat who led the FTC under Biden, was, like many members of Congress today, less focused on achievements than publicity, said Muris, a Republican. “I wonder if we’re in a new era where optics aren’t just important, but they dominate?” Current FTC Chairman Andrew Ferguson appears more focused on the law and what's required to win cases, Muris said: “I think he recognizes the limitations of the FTC Act.” But the Trump administration is also very focused on optics, and Ferguson won’t be able to avoid the spotlight, Muris said. “Managing the commission’s image has always been part of the leader’s job.”
Bringing cases and winning them in court is what “makes [a] lasting change in antitrust law,” said Maureen Ohlhausen, acting FTC chair during the first Trump administration. “Ferguson is being very astute in picking his battles.” Some expected him to throw everything Khan worked on “out the window,” but he's been more selective, she said.
Ferguson still doesn’t have a Republican majority, and the FTC must devote time and resources to cases Khan started, Ohlhausen said. The FTC could also see staff cuts from the Department of Government Efficiency process, she added. The commission will likely put more emphasis on settlements and “reengaging on allowing deals that have some problems that can be resolved to move forward.”
William Blumenthal, a former FTC general counsel, said Khan and Jonathan Kanter, chief of the DOJ Antitrust Division under Biden, focused on “a fair number of things that people really ought to be thinking about,” though they sometimes “went way overboard.” Regulators are collecting much more information than they used to in reviewing mergers, Blumenthal said. “That imposes significant costs on the business community” and “significant delays.” Those policies may not change very much under Trump, he said.