By settling the HPE-Juniper merger case, the Trump administration’s Justice Department protected Section 7 of the Clayton Act and avoided setting a precedent that courts could have used to limit future enforcement power.
The DOJ’s complaint centered on preserving competition in enterprise-grade wireless local area networks, where HPE ranks second and Juniper third behind market leader Cisco.
Officials argue that eliminating this rivalry would create an unhealthy duopoly, driving up prices and stifling innovation. They point to Juniper’s AI-driven Mist products and rapid market share growth as evidence of its competitive significance.
Yet the case stumbled on a fundamental threshold—market share. Juniper captured only 6.5% of the North American market by 2021, despite impressive growth from 1.7% in 2019. Even combined with HPE’s larger share, the merged entity falls well short of the threshold that courts typically require for establishing presumptive competitive harm under merger guidelines.
This created an immediate handicap for government prosecutors attempting to prove the merger will “substantially lessen competition” as required by the Clayton Act.
The DOJ’s emphasis on innovation and AI-driven features would have caused it to face an uphill battle in court. Defense counsel likely would have argued the broader IT networking market offers sufficient alternatives, diluting any specific competitive impact.
Courts struggle with defining nascent technology markets, and this uncertainty typically benefits defendants rather than government enforcers.
Learning From Overreach
This case arrived amid a concerning pattern of enforcement failures. The Biden administration’s antitrust agencies launched numerous ambitious challenges, yet many of these efforts ran aground in federal courts, wasting both scarce enforcement resources and taxpayer dollars.
Critics derided this approach as throwing spaghetti at the wall to see what sticks—a strategy with dangerous long-term consequences for regulatory authority. The Securities and Exchange Commission provides a cautionary tale.
After suffering repeated courtroom defeats following perceived overreach, that agency faced significant contraction of its enforcement power. Judges grew skeptical of SEC claims, making even meritorious cases harder to win. Antitrust enforcers would have risked following down the same path if they continue pursuing weak cases with low success probabilities.
Some will argue that aggressive enforcement sends important signals to markets and deters questionable mergers even when cases fail. This deterrence rationale has merit in theory.
However, repeated losses create judicial skepticism that ultimately makes future enforcement more difficult. Courts remember when agencies cry wolf too often.
Strategic Misjudgments
The timing of this challenge raised additional concerns. The decision to proceed appeared to have originated with the interim antitrust division chief, creating questions about strategic coherence within DOJ leadership.
Launching such a significant, and potentially precarious, legal challenge under interim leadership places permanent appointees in an awkward position. It also risks establishing precedents they may struggle to navigate.
Even former Federal Trade Commission Chair Lina Khan, known for her aggressive enforcement stance, demonstrated pragmatic judgment by occasionally settling or abandoning cases when victory appeared unlikely.
This strategic discretion is essential for maintaining agency credibility. By settling the HPE-Juniper case and preventing it from going to court, recently confirmed antitrust leaders embraced such pragmatism, particularly as judicial scrutiny of agency actions intensifies.
Lessons for Trump
The Trump administration’s antitrust team understandably shares some enforcement priorities with its Biden-era predecessors, particularly regarding market concentration concerns. However, it must avoid repeating the same tactical mistakes.
Success requires careful case selection that maximizes win rates rather than simply increasing enforcement volume. Continued pursuit of this case may delay their ability to correct course sooner than later.
Strong antitrust enforcement serves important economic and democratic values. Markets function better when competitors can’t merge their way to dominance, and innovation thrives under competitive pressure.
Yet achieving these goals requires strategic discipline. Agencies must choose battles they can win, building precedents that strengthen rather than weaken enforcement authority over time.
A Path Forward
Preserving Section 7’s authority demands recognition that enforcement credibility matters more than enforcement frequency. Each failed challenge makes subsequent cases harder to win, creating a downward spiral that ultimately harms competition policy. Courts develop skepticism toward agencies that repeatedly bring weak cases, regardless of their good faith efforts.
The administration’s antitrust leaders should prioritize cases with strong market share thresholds, clear competitive harm, and robust legal foundations. This approach may produce fewer headlines, but it will yield more sustainable enforcement authority.
Building judicial confidence through careful case selection creates space for more aggressive action when circumstances truly warrant intervention.
The enterprise networking market will continue evolving with or without this merger. However, the broader health of US antitrust enforcement depends on making strategic choices that strengthen rather than weaken regulatory authority.
The DOJ was wise to reconsider this challenge before its trial began. It demonstrated the kind of prosecutorial discretion that ultimately serves competition policy better than pressing forward with a likely unsuccessful case.
The stakes extend far beyond one technology sector. Section 7 of the Clayton Act remains one of our most important tools for preserving competitive markets. We must not let misguided enforcement weaken the very weapon we need to fight genuine threats to competition.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
John Pierce, a trial lawyer and founder of John Pierce Law, is the founder of the National Constitutional Law Union.
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