How Trump’s FTC Largely Keeps Antitrust Policies Under Biden

In February, the commission’s chairman told staff that the agency would follow the merger guidelines put in place by his predecessor.

The Federal Trade Commission building is seen in Washington, on Dec. 8, 2024. Jose Luis Magana, File/AP Photo

News Analysis

The Federal Trade Commission (FTC), headed by Chairman Andrew Ferguson, is largely keeping the antitrust policy under the Biden administration.

In February, Ferguson, appointed by President Donald Trump, told commission staff that the agency would follow the merger guidelines put in place by his predecessor, Lina Khan.

Under Khan’s leadership, the FTC expanded the scope of its scrutiny to companies’ size and market share, not just evidence of direct consumer harm, when evaluating mergers and acquisitions.

Many Democrats praised Khan’s approach, as did some Republicans.

Sen. Josh Hawley (R-Mo.) and then-Rep. Matt Gaetz (R-Fla.) were often called “Khanservatives” for concurring with Khan that U.S. antitrust law has a broader purpose than protecting consumers from high prices.

Vice President JD Vance also stated at an event in Washington in February that Khan “recognized there has to be a broader understanding of how we think about competition in the marketplace.”

Critics of the previous FTC said it expanded the government’s control over private industry beyond what it traditionally had been.

“To the dismay of many in the antitrust community, Chairman Andrew Ferguson is continuing the Biden-era joint merger guidelines developed by Biden’s Federal Trade Commission chair Lina Khan and Justice Department antitrust chief Jonathan Kanter,” Robert Bork Jr., president of the Antitrust Education Project, told The Epoch Times.

“Those guidelines are designed to maximize the power of the Washington, D.C., regulator over the market.”

The Consumer Welfare Standard

In 2019, then-Trade Commissioner Christine Wilson explained that “under the consumer welfare standard, business conduct and mergers are evaluated to determine whether they harm consumers in any relevant market. Generally speaking, if consumers are not harmed, the antitrust agencies do not act.”

Advocates of the consumer welfare standard also say that consumer harm is clearly defined and measurable, creating more certainty among companies regarding what sort of behavior the government will oppose.

“Without this standard and its reliance on econometrics, antitrust law is no longer a tool to promote efficiency and competition in the service of the consumer; it is a weapon the regulator can point in any direction he or she wants, at any politically disfavored target,” Bork said.

Big Tech a Primary Target

Under Khan’s leadership, the trade commission also took a more aggressive stance against tech companies, including Alphabet (parent of Google), Amazon, Microsoft, and Meta (parent of Facebook).

The trade commission under Ferguson has retained all cases from his predecessor, “signaling a firm stance against big tech,” Wesley Hodges, director of the Heritage Foundation’s Tech Policy Center, told The Epoch Times.

“Instead of revoking the [merger] guidelines outright, he preserved them within a broader anti-monopoly framework,” Hodges said. This framework is focused on protecting other companies in concentrated industries, he said.

After Trump announced his appointment as chairman, Ferguson stated on the social media platform X in December that the commission would “end Big Tech’s vendetta against competition and free speech.”

Hodges said he expects “the desire to hold Big Tech accountable for its harmful and anticompetitive practices to be the driving force of the Ferguson [Federal Trade Commission],” Hodges said.

On Feb. 20, a month after Ferguson took office, the FTC launched an investigation into whether technology platforms “deny or degrade users’ access to services” because of their point of view or political or religious affiliation.

“Tech firms should not be bullying their users,” Ferguson stated. “This inquiry will help the FTC better understand how these firms may have violated the law by silencing and intimidating Americans for speaking their minds.”

As an additional sign of what is to come for tech companies under the Trump administration, the DOJ antitrust division sued to block the merger of Hewlett Packard and Juniper Networks, two wireless networking firms, on Jan. 30.

Workers’ Rights and AI

Khan also attempted to steer the commission toward defending workers’ rights, including an unsuccessful effort to ban noncompete agreements for employees.

The commission under Ferguson also continues Khan’s approach regarding worker protections, although with some variations, such as investigations of corporate diversity policies.

In February, the FTC launched a joint labor task force, which it said will target “deceptive, unfair, and anticompetitive labor-market practices” including “no-poach, non-solicitation, or no-hire agreements, noncompete agreements, wage-fixing agreements … and collusion or unlawful coordination on DEI employment metrics.”

However, artificial intelligence is one area where the FTC may grant more leeway going forward than it did under Khan’s leadership.

“The commission must not charge headlong to regulate AI,” Ferguson stated in January. “Such regulation could strangle this nascent technology in its cradle, or move the development of the technology to foreign states hostile to our national interests.

“On the other hand,” he said, “the commission must remain a vigilant competition watchman, ensuring that Big Tech incumbents do not control AI innovators in order to blunt any potential competitive threats.”