Antitrust Under Trump 2.0: Competition Corner
Issue #33
G’day, competition fans. It’s Satya again, bringing you what’s new in the world of competition.
This month, President-elect Trump announced that he has picked Gail Slater to replace Jonathan Kanter as assistant attorney general for antitrust at the Department of Justice (DOJ), picked current Republican commissioner Andrew Ferguson to replace Lina Khan as FTC chair, and nominated former deputy chief counsel for antitrust for Senator Mike Lee (R-UT), Mark Meador, as a new FTC commissioner. Slater brings experience from private practice as well as her time on the Trump 1.0 National Economic Council and as an adviser to JD Vance. Ferguson’s priorities will reportedly include prosecuting tech firms for suppressing speech. He is also expected to take a more pragmatic approach to policing mergers and regulating artificial intelligence than current chair Khan. According to Trump, Slater’s priorities will include policing market power abuse by “big tech,” protecting consumers and “little tech,” and promoting “clear rules that facilitate, rather than stifle, the ingenuity of our greatest companies.”
We hope that this foreshadows a withdrawal of the ill-advised 2023 FTC-DOJ merger guidelines. These rejected quantitative tools and the latest economic learning, favored spurious and speculative theories of merger-related harms, cited outdated case law, declined to acknowledge that efficiency-enhancing mergers can promote competition and innovation, and failed to give parties clarity about what mergers were likely to be challenged by the agencies and which would likely be allowed. Rather than seeing a sharp decline in merger activity across the economy for what it is- a sign of regulatory uncertainty and a lack of commercial confidence among entrepreneurs to take big and costly steps- FTC and DOJ leadership celebrated this as a sign of their merger guidelines’ success. Why worry about arguing against a potentially pro-competitive merger in court when these proposals become so prohibitively costly to defend that they never leave the boardroom?
We also expect that with its “America first” agenda, a Trump DOJ and FTC is unlikely to continue the Biden DOJ and FTC’s support for foreign governments’ initiatives to undermine US companies. The Biden FTC is currently being investigated by the Republican-led House Committee on Oversight and Accountability for allegedly cooperating with European regulators to successfully prevent the Amazon-iRobot merger, which faced more legal hurdles under overseas law than it did stateside. At a time when foreign governments are increasingly using antitrust and consumer protection concerns as a veneer to extract wealth from US firms and shield their domestic industries from competition, a shift in the opposite direction would be welcome. This would ideally be accompanied by international cooperation to target bad actors like China for their anti-competitive market distortions. The Trump agencies could also target firms for antitrust violations over ESG initiatives, as suggested by a 2024 interim report from the House Judiciary committee that investigated the same.
Leaving these prospects aside, not a lot is likely to change. A number of high-profile investigations and prosecutions under the Biden agencies were inherited from the Trump 1.0, including the Google Search case. We fully expect both investigations and antitrust suits targeting “big tech” firms and platforms to continue- although Trump’s recent criticisms of proposals to break up Google seem to foreshadow a more pragmatic approach to antitrust remedies.
The status of the new rule expanding Hart-Scott-Rodino (HSR) Act reporting requirements for proposed mergers (effective in February 2025) is up in the air. The rule would add significant additional costs and delays for merging parties while straining agency resources-. Trump 2.0 could freeze the new rule for 60 days, though it should be noted that the FTC voted for it unanimously, with support from Republican Commissioners Ferguson and Holyoak. Alternatively, Congress may vote to rescind the rule through a joint resolution of disapproval that is signed by the President under the Congressional Review Act (CRA).
What do you think? Send your thoughts, predictions, and bets to competition@mercatus.gmu.edu
A Pro-Growth Agenda for the New Administration
The United States can play a pivotal role in promoting prosperity, trade, and competition overseas and at home. In a recent Forbes columns, Alden Abbott argues for a return to US leadership in promoting innovation and consumer-centric competition policy worldwide, in combatting anti-competitive market distortions, and in slashing burdensome red tape at the state and federal level at home. Other ideas for pro-growth trade and economic were also outlined in the recent report to the incoming administration that Alden co-authored with the Growth Commission.
Could competition authority be entirely vested in the DOJ under a Trump administration? With the rise of Elon Musk and Vivek Ramaswamy’s Department of Government Efficiency (DOGE) and Republican control of both houses, the prospect is no longer farfetched. Alden wrote about this recently for Forbes.
On The Origin (and Evolution) of Platforms
Policymakers worldwide are undertaking unprecedented efforts to regulate large technology platforms in order to purportedly boost competition. In “On the Origin of Platforms: An Evolutionary Perspective,” Dirk Auer and Geoffrey Manne argue that these efforts could be both misguided and harmful. They show that the success of Apple, Google, and other tech giants may not stem from anticompetitive practices but rather from these companies’ superior ability to adapt to market demands, particularly through successful choices in platform design.
Also check out Alden’s recent appearance on the Lars Larson show on why forcing Google to sell its Chrome browser would hurt consumers, innovation, and competition.
In my latest analysis for Discourse Magazine, I look at how state legislation intended to regulate Pharmaceutical Benefit Managers (PBMs) in the name of propping up local pharmacies will undermine competition and increase insurance coverage costs for employers, patients, and taxpayers alike. I previously wrote about how the FTC’s ongoing case against the nation’s three largest PBMs over negotiating rebates from drug manufacturers stands on shaky competition law foundations.
Economics in Personal Decision-making
We often discuss how economics informs finance, business, and public policy decision-making. In this piece, competition project program manager Giorgio Castiglia argues that it can and should inform decision-making in our personal lives too.
December will be Giorgio’s last month with us as he is soon to join the good folks at the Information Technology and Innovation Foundation (ITIF). We wish him the best of luck in his future endeavors.
That’s all for 2024. Merry Christmas and happy holidays to you and yours. See you in 2025!
Satya Marar
Visiting Postgraduate Fellow – Innovation, Competition & Governance
Mercatus Center at George Mason University
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