Chris Gasche
Associate Editor
Loyola University of Chicago School of Law, JD 2027
In April 2025, the Federal Trade Commission (FTC) decided to pursue an antitrust trial against Meta. This conflict was initiated back in 2020 during the Trump administration, which continued throughout Biden’s time in office, and is now being brought to fruition. This case involves the alleged monopoly of social networking services as a result of Meta’s acquisition of Instagram and, more recently, WhatsApp. Regardless of the administration, antitrust agencies remain committed to challenging harmful business practices in the tech sector.
Despite political shifts in Washington, antitrust enforcement in the United States has proven remarkably consistent across administrations. Recent actions by the FTC and the Department of Justice (DOJ) suggest that rigorous antitrust enforcement and oversight remains a priority, regardless of partisan lines. In an April 10, 2025 court filing, the FTC upheld a Biden-era rule which requires companies to be more transparent about their mergers and future dealings. This new pre-merger rule would require businesses to provide more information than is traditionally required by the Hart-Scott-Rodino (HSR) Act.
Historical continuity across administrations
This decision from the Trump administration to maintain a Biden-era policy marks a departure from the current administration’s attitude towards the prior administration. However, consistency in antitrust regulation has been commonplace for decades so it is not entirely shocking to see the new administration following suit. In a February 18, 2025 memo addressed to all FTC staff, Chairman Andrew N. Ferguson (Ferguson), a Trump appointee, made it clear that gross departures from prior departmental policy is net negative for both the economy and the productivity of businesses and practitioners as a whole. The hallmark of consistency in antitrust law has been the adherence to the joint Horizontal Merger Guidelines. These guidelines are published by the DOJ and the FTC and they provide a framework to analyze and evaluate a merger to ensure that they adhere to the FTC’s policies. Ferguson noted in his memo that since the first issuance of the joint Horizontal Merger Guidelines in 1992, the FTC and the DOJ have largely been following the same guidelines across administrations. The most recent merger guideline revision occurred in 2023 and Ferguson does not expect there to be any significant departure from them. This is largely because merger guidelines are incredibly complex and compliance with those guidelines would become near impossible if businesses had to expect significant and unexpected change with each election cycle.
Additionally, continuity is likely because the 2023 merger guidelines were precipitated by a shift in the way antitrust law is viewed. In an article by ProMarket, the author references a paper written by Zephyr Teachout titled, “Homecoming: Antitrust as a Domain of Law.” The author of this paper notes that prior to the modern period, antitrust was viewed as a domain of economics rather than a domain of law. Throughout the 1970s and 1980s, there was a dominant focus on the Consumer Welfare Standard (CWS). The focus of CWS is on the effects that a particular business practice or merger will have on the consumer. Through the use of data and economic tools, courts and antitrust enforcers are able to gauge these impacts and determine whether they will raise prices, reduce output, or stifle innovation. According to ProMarket, courts during this era relied primarily on economic theories and focused on a case-by-case analysis to determine whether a given practice would adversely affect the consumer. Recently, that view has been changing. Although it is not clear what theory will directly replace the CWS, the 2023 merger guidelines shifted their focus to a legal perspective. For example, the new guidelines contain many more legal citations, cases, legislative history, and statutory language than the 1982 guidelines did.
It seems as though the Trump administration has decided to adhere to this paradigm shift in the realm of antitrust law. The decision made by the Trump administration to maintain the 2023 merger guidelines is tangential evidence of this adherence. According to the ProMarket article, the antitrust polices under President Biden led to dramatic wins for monopoly enforcement. When President Trump commenced his second term, the expectation was that he would refuse to enforce Biden-era policies. Instead, the opposite happened.
What to expect going forward
Looking forward, compliance teams and in-house counsels should expect continuity in antitrust regulation. Companies can expect most antitrust policies to continue and for the Trump administration to pursue similar objectives as the Biden administration. With regard to the pre-merger rule, companies that are contemplating mergers should expect longer reviews and broader disclosure requirements. Additionally, companies in the tech sector need to be vigilant due to the priority placed on regulating growth and development. To conclude, antitrust law is undergoing a fundamental shift in its philosophy. While not immediately clear what theory will directly replace the CWS, both administrations have supported this shift and have precipitated a return to the domain of law in antitrust regulation.