FTC signals continuation of rigorous approach to merger enforcement

Recently appointed Federal Trade Commission (FTC) Chairman Andrew Ferguson affirmed last week in a memorandum to FTC staff that the 2023 Merger Guidelines will remain in effect for the foreseeable future. This decision aligns with a broader pattern emerging in President Donald Trump's Administration of maintaining a rigorous approach to antitrust merger enforcement.

As we noted last month in the runup to President Trump’s inauguration, the business community widely viewed the Biden Administration as hostile to mergers and acquisitions, and many are hoping for a substantially relaxed enforcement during the new Administration.

Historically, however, political rhetoric often outpaces actual shifts in US merger enforcement from one administration to the next. We cautioned that companies planning mergers in 2025 should remain prepared for a rigorous enforcement environment, and Chairman Ferguson’s announcement last week underscores the importance of maintaining a posture of preparedness.

Chairman Ferguson emphasized the importance of stability in merger guidelines across administrations, noting previous precedents where guidelines remained largely unchanged through political transitions: Clinton-era enforcers retained the 1992 Guidelines promulgated by the George H.W. Bush Administration until 1997; enforcers serving under President George W. Bush retained the 1997 Guidelines unchanged; and President Trump retained unchanged the 2010 Guidelines issued during the Obama Administration.

Chairman Ferguson explicitly rejected "a recriminatory cycle of partisan rescissions," saying it would harm economic planning and judicial reliance on these standards. His position is echoed by Gail Slater, President Trump's nominee to lead the US Department of Justice's Antitrust Division, who testified that "much of what is in the current merger guidelines simply restates longstanding law."

While acknowledging imperfections in the 2023 Guidelines, Chairman Ferguson noted they largely reflect established case law and prior guidance. His memo signals openness to targeted revisions if warranted by experience, but confirms the 2023 Guidelines will serve as the framework for merger enforcement for the foreseeable future.

The bottom line for companies considering mergers in 2025 is to not expect a dramatic shift in merger review. Businesses are encouraged to continue making antitrust planning and analysis a central feature of their processes for valuing, planning, and executing on potential transactions.