The Trump administration will retain tough merger guidelines adopted under the Biden administration, dashing corporate hopes for looser consolidation rules.
The Trump administration has announced it will retain the stringent merger review guidelines introduced by the Biden administration, disappointing Wall Street and Big Tech, which had hoped for a regulatory rollback that would ease corporate consolidation.
In memos issued on Feb. 18, Federal Trade Commission (FTC) Chairman Andrew Ferguson and Department of Justice (DOJ) acting antitrust chief Omeed Assefi confirmed that the agencies will continue using the
2023 Merger Guidelines, which have faced sustained criticism from corporate interests since their implementation.
“This approach is consistent with the iterative, bipartisan approach to revisions that has long defined the Agencies’ approach to merger guidelines,” Assefi
wrote.
While acknowledging that the guidelines are “not necessarily perfect,” he stated that any potential revisions would be made with transparency and careful consideration.
Ferguson echoed these sentiments, emphasizing the need for stability in merger enforcement.
“If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts,” he
wrote. “No business can plan for the future on the basis of guidelines they know are one election away from rescission, and no court will rely on guidance that is so obviously partisan.”
Ferguson also noted that the 2023 guidelines largely restate previous iterations and align with established case law. Like Assefi, he acknowledged the guidelines are not “perfect” but stressed the need for a measured and transparent review process to maintain regulatory stability.
Gail Slater, President Donald Trump’s nominee to lead the DOJ’s antitrust division, also signaled support for maintaining the 2023 rules. In written responses to senators, she endorsed Ferguson’s approach and emphasized the importance of “strong oversight of merger enforcement,” particularly in the health care sector.
“I would work with Chairman Ferguson to ensure a careful and transparent process that maintains the stability that rules of the road need in order to serve their purpose and that respects the original meaning of the applicable statutory text as interpreted by the binding rulings of the courts,” Slater wrote.
Adopted in 2023, the guidelines replaced earlier rules governing two types of mergers: horizontal mergers between direct competitors and vertical mergers involving companies at different stages of the supply chain. Business groups, led by the U.S. Chamber of Commerce, have strongly opposed the changes, arguing they create unnecessary barriers to corporate growth and economic activity.
The guidelines “would reduce capital flows, discourage risk and innovation, and punish or deter efficient mergers and other pro-competitive transactions, all to the detriment of consumers and long-term U.S. economic competitiveness,” the chamber wrote in a September 2023
note opposing the regulatory changes.
The Computer and Communications Industry Association (CCIA) also voiced opposition,
arguing the guidelines unfairly lower the bar for what mergers are deemed presumptively illegal, particularly targeting Big Tech firms.
“As technology and AI transform more sectors of the economy, creating a special set of regulations that apply only to specific companies doesn’t make good legal or economic sense,” CCIA President Matt Schruers said in a statement at the time. “The new merger guidelines may risk chilling valuable transactions in ways that would weaken U.S. exporters’ ability to compete globally.”
Despite corporate pushback, the DOJ–FTC decision to uphold the 2023 merger guidelines was welcomed by some conservative legal figures and advocacy groups. Mike Davis, founder of the Internet Accountability Project, which pushes for tougher regulations on Big Tech, celebrated the move,
stating in a post on the social media platform X, “This is an important message to monopolists: The decades of antitrust amnesty are over.”
Joel Thayer, president of the Digital Progress Institute and a member of the conservative Federalist Society, also praised the decision.
“The 2023 Merger Guidelines are grounded in the law and not voodoo economics. It is textualism 101 and in keeping with commonly held legal principles in antitrust,” he wrote in a
post on X.
The move suggests the Trump administration’s approach to antitrust enforcement may not diverge as sharply from its predecessor as some had expected. Ferguson’s endorsement of the guidelines follows his recent backing of the FTC’s revised Hart-Scott-Rodino merger notification rules, which are currently facing
opposition and
legal challenges from business groups.
