The Sequel? Predicting Antitrust Enforcement under a New Trump Administration
Our Antitrust & Competition Team continues to provide insights into the antitrust enforcement that may occur under the next presidential administration. In our previous post, we examined antitrust enforcement during the Biden Administration, which highlighted the results from Biden Administration’s aggressive policies. It would be difficult to predict enforcement priorities and agency leaders under a potential Trump administration. As our guideposts, we will analyze antitrust enforcement under Trump’s first term, 2024 campaign rhetoric, and antitrust priorities laid out in Heritage Foundation’s 2025 Presidential Transition Project (“Project 2025”), with the understanding that former President Trump has disavowed Project 2025.
Antitrust under Trump’s First Term
Although Republican administrations may be known for more business-friendly antitrust policies, the last Trump Administration quickly ramped up antitrust rhetoric and enforcement priorities. Trump’s DOJ aimed to break up “Big Tech” with challenges to major technology deals and the Google search monopolization case (that the DOJ won recently). Trump’s FTC also challenged deals with novel theories of harm and suits against vertical mergers.
Antitrust Rhetoric on the Campaign Trail
While Trump has been relatively silent on antitrust on the campaign trail, his running mate JD Vance has been vocal about aggressive antitrust enforcement. Vance described FTC chair Lina Khan as one of the few people I think are doing a good job in the Biden Administration and appreciated how she has “a broader understanding of our thinking about competition in a marketplace.” Vance believes Big Tech companies should be broken up because they are “too large.” Project 2025 is a collection conservative policy plans which could be implemented by the new Trump administration. Project 2025 acknowledges the importance of antitrust enforcement to ensure a competitive economy and expresses some progressive ideas on market concentration, stating that “we are witnessing in today’s markets the use of economic power–often market and perhaps even monopoly power–to undermine democratic institutions and civil society.” Project 2025 partially blames the government for increased market concentration, opining that the “sheer cost of compliance with regulation favors large firms, which can more efficiently spread the cost of regulation over a larger revenue base and have the resources to invest in sophisticated government relations” and calls for the FTC to consider the role of government in maintaining market concentration.
Project 2025 also discusses ways that antitrust enforcers can bolster conservative ideals. Project 2025, for example, calls for FTC investigations into “environmental social and governance” (“ESG”) activities that mask anticompetitive behavior and unfair trade practices. The plans also call on more cooperation between FTC and state attorney generals because, according to the policy, “state attorneys are far more responsive than the FTC to their constituents.” However, they also question whether FTC should continue enforcing antitrust laws.
