While the US government absorbs unprecedented changes from President Donald Trump, the Federal Trade Commission’s antitrust enforcement appears to be running the same playbook it did under President Joe Biden.
Gail Slater, the Justice Department’s new assistant attorney general, will work closely with FTC Chair Andrew Ferguson to direct the Trump administration’s antitrust policy.
Between public statements made by both officials, and FTC actions by Ferguson in the past two months, two trends have emerged: a surprising amount of continuity with Biden’s antitrust policy and a more targeted approach that treats enforcement as a “scalpel” rather than a “sledgehammer.”
Ferguson has signaled in a memo to FTC staff that he plans to keep Biden-era merger guidelines in place. There’s plenty of precedent, he said: President Bill Clinton’s FTC retained guidelines promulgated under George H.W. Bush until 1997, George W. Bush kept most of Clinton’s 1997 revisions, and even Trump held onto the revisions President Barack Obama made in 2010.
“If merger guidelines change with every new administration, they will become largely worthless to businesses and the courts,” Ferguson wrote, while acknowledging the 2023 guidelines aren’t “perfect.”
Slater and Ferguson are likely to maintain the Biden administration’s adversarial stance toward Big Tech, which itself was a carryover from the first Trump term. This is important for Slater, who inherits major Justice Department litigation against Apple Inc. and Google LLC.
A lawsuit against Google, filed in 2020 under Trump, led to a ruling last year that the tech company is monopolizing the online search market. The case is in the remedy phase, and the DOJ under Biden asked courts to break up Google by forcing the sale of its Chrome browser.
Slater hasn’t telegraphed whether she supports that particular remedy, but many observers (including the president) expect her to be tough on Big Tech, and she stated at her confirmation hearing that she has every intent on continuing these Big Tech cases.
Perhaps the biggest change in antitrust policy under Slater and Ferguson will be a renewed focus on surgical, predictable enforcement that punishes bad actors but never penalizes companies solely for being successful.
Lina Khan, Biden’s FTC chair, brought a bold new philosophy to antitrust enforcement: Instead of acting solely in consumers’ best interests, the FTC (and DOJ’s antitrust division) worked to—in the words of Khan in 2016—“disperse economic and political power,” which she believed was one of the original intents of antitrust law.
Although Ferguson and Slater are carrying over some practices from Khan’s tenure, such as the Big Tech pressure, they aren’t leaving the entire operating structure in place.
In a December 2024 dissent to an FTC decision, Ferguson made it clear he believes antitrust laws should maximize consumer welfare, not ensure “some quantum of competing firms in the market.” In a question-and-answer that she submitted to the congressional record in February, Slater said she will “preserve economic liberty” by ensuring “the law is enforced both vigorously and fairly, with clear rules.”
In other words, enforcement should be targeted and used against companies only when there is concrete evidence of anticompetitive conduct. This approach contrasts with the philosophy of the Biden administration’s antitrust enforcers, which rescinded the consumer welfare standard. Khan said this standard was troubling because “allowing firms” that didn’t raise prices or lower output for consumers “to amass market power makes it more difficult to check that power when it is eventually exercised.”
A perfect example is the DOJ’s Biden-era lawsuit against Visa Inc. While the Biden DOJ took umbrage with Visa’s 60% market share, the consumer welfare-centered Trump administration shouldn’t inherently see an issue with that market share percentage, which isn’t even monopolistic by most historical antitrust standards. As Slater put it at her confirmation hearing, “antitrust is a scalpel, it’s targeted enforcement and it requires evidence of anticompetitive conduct and harmed consumers.”
The same goes for the current lawsuit that has the merger between Hewlett Packard Enterprise Co. and Juniper Networks Inc. tied up. In filing the suit, the DOJ expressed concern the merger would create too much marketplace concentration; however, HPE and Juniper have roughly 13% and 4% of the wireless business networking market, respectively, while their competitor, Cisco System Inc., has 46%. That may have been too much for the Biden antitrust enforcers who subscribe to a neo-Brandeisian way of thinking, but it shouldn’t be for Slater and Ferguson, who have signaled they don’t believe market share alone is reason enough to use antitrust law.
Another example of the new approach Slater and Ferguson likely will bring to antitrust can be found in their statements about noncompete clauses, which Biden’s FTC attempted to ban before courts blocked the effort.
Both antitrust czars have endorsed the sentiment behind that proposal, with Ferguson saying the FTC must “protect workers” and Slater explaining in her confirmation hearings that the imposition of noncompete agreements “prevents workers from switching jobs easily, which is particularly problematic in highly concentrated markets.”
Note her emphasis on highly concentrated markets. In place of the Biden administration’s approach, which aimed to outlaw noncompetes entirely, Slater and Ferguson plan to approach the issue on a case-by-case basis, cracking down only on conduct that verifiably “hurts America’s workers.”
Trump has promised to create a pro-business environment. That is why he picked Ferguson and Slater to run his administration’s antitrust wing, and as such, they should be expected to be as pro-business as their populist-driven ideologies will allow.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Thomas Stratmann is a senior research fellow at the Mercatus Center and professor of economics and law at George Mason University.
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