United States - Market Insights

Merger control under the second Trump administration

During its first year, the second Trump administration has reshaped U.S. merger control. This reshaping has comprised the retention, return, and introduction of several enforcement tools and priorities, with the central aim of imbuing predictability for businesses by removing procedural and substantive roadblocks. The current federal antitrust enforcers appear to be taking a pragmatic, deal-friendly posture in merger control, while remaining committed to vigorously enforcing the U.S. antitrust laws. State antitrust enforcers will undoubtedly continue to play an indelible role in merger control, alongside sectoral regulators and private litigants.

Retention of the 2023 Merger Guidelines

A stage-setting source of continuity at the onset of the second Trump administration was the Department of Justice’s (DOJ) and Federal Trade Commission’s (FTC) joint decision to continue using the merger guidelines promulgated during the Biden administration in 2023. Chairman Ferguson’s memorandum to agency staff cited stability as a primary reason for the decision and that “[n]o business can plan for the future on the basis of guidelines they know are one election away from rescission.” (See FTC Internal Memorandum (February 18, 2025), available at www.ftc.gov/system/files/ftc_gov/pdf/ferguson-memo-re-merger-guidelines.pdf.) The agencies have kept open the possibility of future changes to the guidelines, but any revisions would be implemented “with the same transparency and careful thought that have become hallmarks of the merger guidelines since their inception.” (See DOJ Internal Memorandum (February 18, 2025), available at www.justice.gov/atr/media/1389861/dl?inline.)

Return of merger remedies

Under the second Trump administration, federal antitrust regulators are much more willing to use remedies to address concerns with proposed transactions instead of “costly and time-consuming litigation.” (See Congressional Testimony of FTC Chairman Ferguson (May 15, 2025), available at www.ftc.gov/system/files/ftc_gov/pdf/FTC-Chairman-Andrew-N-Ferguson-FSGG-Testimony-05-15-2025.pdf.) This is a drastic shift from the Biden administration that consistently deployed AAG Kanter’s sentiment that “flimsy settlements often fail.” (See Assistant Attorney General Jonathan Kanter Delivers Opening Remarks at 2022 Spring Enforcers Summit (April 4, 2022), available at www.justice.gov/archives/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-opening-remarks-2022-spring-enforcers) and Chairwoman Khan’s philosophy that the FTC would be “focusing … resources on litigating, rather than on settling.” (See Axios, FTC’s new stance: Litigate, don’t negotiate (June 8, 2022), available at www.axios.com/2022/06/09/ftcs-new-stance-litigate-dont-negotiate-lina-khan.)

The DOJ and FTC in the second Trump administration have already embraced a renewed willingness to negotiate remedies with merging parties to resolve competition concerns. In April 2025, Chairman Ferguson noted that a “realistic approach” to merger remedies is to accept them when the reviewing agency is “quite confident that they will be successful, help … block more anticompetitive conduct, and protect more Americans.” (See Capitol Forum/FGS Global Keynote Speech (April 2, 2025), available at www.thecapitolforum.com/resource/antitrust-under-trump-keynote at 30:34). In June 2025, in a statement in Alimentation Couche-Tard/Giant Eagle, Commissioner Meador outlined some guiding principles for the FTC’s evaluation of a proposed remedy package: “[t]he FTC should, in all but extremely rare cases, insist on clean divestitures of standalone business lines when negotiating merger remedy packages. Remedy proposals should fully and durably resolve competitive concerns. Structural remedies must be self-sustaining.” (See FTC Statement (June 26, 2025), available at www.ftc.gov/system/files/ftc_gov/pdf/mark-meador-statement-act-giant-eagle.pdf.)

Since mid-2025, the DOJ and FTC have each entered into numerous settlements that inform what the federal agencies’ approach to merger remedies will likely look like moving forward:

• Alimentation Couche-Tard/Giant Eagle (June 2025): The FTC agreed to a structural remedy to address the potential elimination of “head-to-head competition across 35 local markets in Indiana, Ohio, and Pennsylvania” resulting from the proposed transaction. (See FTC Takes Action to Prevent Anticompetitive Effects of Retail Gas Station Deal, (June 26, 2025), available at ftc.gov/news-events/news/press-releases/2025/06/ftc-takes-action-prevent-anticompetitive-effects-retail-gas-station-deal.) The buyer acquiring the 35 divested gas stations will be able to “expand its geographic footprint as a new competitor in markets across Indiana, Ohio, and Pennsylvania.”
• Omnicom/Interpublic (September 2025): Despite a strong preference for structural remedies, the FTC agreed to a purely behavioral settlement that imposed restrictions that prevent the merged firm from “engaging in collusion or coordination to direct advertising away from media publishers based on the publishers’ political or ideological viewpoints.” (See FTC Prevents Anticompetitive Coordination in Global Advertising Merger (June 23, 2025), available at ftc.gov/news-events/news/press-releases/2025/06/ftc-prevents-anticompetitive-coordination-global-advertising-merger.)
• Constellation/Calpine (December 2025): In the first settlement consent decree filed by the DOJ in an electricity merger in 14 years, the Division agreed to a structural settlement requiring the divestiture of six power plants without an upfront divestiture buyer being identified. (See Justice Department Requires Divestitures to Proceed with Constellation’s Proposed $26.6 Billion Acquisition of Calpine (December 5, 2025), available at justice.gov/opa/pr/justice-department-requires-divestitures-proceed-constellations-proposed-266-billion.) The Federal Energy Regulatory Commission also reviewed the proposed transaction and required asset divestitures prior to consummation.

To further instill predictability, the federal agencies’ return to merger remedies will likely be memorialized in reinstated guidelines.

Restoration of early termination

Another meaningful change to merger control has been the restoration of the practice of granting early termination of the HSR waiting period. In February 2021, the Biden administration suspended early termination, resulting in under a dozen requests being granted during the remainder of the administration. (See FTC, DOJ Temporarily Suspend Discretionary Practice of Early Termination (February 4, 2021), available at www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.) For reference, over a thousand requests were granted on average in each year of the first Trump administration. (See FTC Legal Library: Early Termination Notices, available at www.ftc.gov/legal-library/browse/early-termination-notices.) Since reinstating early termination, the DOJ and FTC have already granted nearly 400 such requests in 2025 alone. This trend will likely continue, especially given the agencies’ enforcement principle of promptly clearing transactions without any colorable competition concerns.

HSR filing rules

One of the hallmarks of Chairwoman Khan’s tenure at the FTC was the implementation of a new HSR Form, noted at the time as a “generational upgrade that will sharpen the antitrust agencies’ investigations.” (See FTC Statement (October 10, 2024), available at www.ftc.gov/system/files/ftc_gov/pdf/khan-slaughter-bedoya-statement-regarding-final-premerger-notification-form-hsr-rules-fy2023-hsr-annual-report-to-congress.pdf.) The new HSR Form took effect in February 2025 and although it was more burdensome for applicants, it only lasted about a year: on February 12, 2026, a federal district court vacated the form, and a month later, the Fifth Circuit denied the FTC’s motion for a stay pending appeal. Currently, the DOJ and FTC are accepting HSR filings under the original 1978 HSR Form.

In March 2026, the DOJ and FTC launched a joint request for comments on potential HSR rulemaking, “seek[ing] to reduce the burden for non-problematic transactions while also making necessary updates informed by lessons learned” over the last year. (See Federal Trade Commission and Department of Justice Seek Public Comment on the Premerger Notification and Report Form (March 25, 2026), available at www.ftc.gov/news-events/news/press-releases/2026/03/federal-trade-commission-department-justice-seek-public-comment-premerger-notification-report-form.) Given the current administration’s focus on pragmatism and predictability, a new HSR Form will likely incorporate necessary updates from the 1978 HSR Form, while stopping short of the more burdensome requirements of the updated 2025 Form.

Rise of state antitrust enforcement

The shift by the federal antitrust agencies toward merger remedies has created a perceived enforcement void that state antitrust agencies have promptly stepped in to fill. Since mid-2025, Washington, Colorado, and California have enacted state-level premerger notification statutes, which have already resulted in over 200 filings. Similar “mini HSR” bills are pending in New York, the District of Columbia, Hawaii, Indiana, and West Virginia. Looking ahead, when the federal enforcers decide to settle or take no action, state antitrust enforcers appear poised to independently challenge proposed transactions.

Focus on technology, healthcare, and consumer-facing industries

Merger enforcement under the current administration has continued to focus on industries that are “kitchen table priorit[ies]” for U.S. consumers. (See It’s Not Personal Sonny, It’s Strictly Business: Aggressive Enforcement to Protect a Free Market (March 23, 2026), available at www.justice.gov/opa/speech/its-not-personal-sonny-its-strictly-business-aggressive-enforcement-protect-free-market.) Merger enforcement has examined a variety of industries, including wholesale energy (Constellation/Calpine), construction adhesives (Henkel/A-Paint), aircraft components (Safran/RTX Corporation), retail gas stations (Alimentation Couche-Tard/Giant Eagle), and high-speed internet testing equipment (Keysight/Spirent).

An emerging trend in federal antitrust enforcement involves the intersection of antitrust and the First Amendment. The second Trump administration prioritized perceived censorship by technology platforms, memorialized by an executive order titled Restoring Freedom of Speech and Ending Federal Censorship. (See Executive Order 14149 (January 20, 2025), available at www.whitehouse.gov/presidential-actions/2025/01/restoring-freedom-of-speech-and-ending-federal-censorship.) The antitrust agencies quickly acted on this priority, with the FTC launching an inquiry to understand how a group of companies “may have violated the law by silencing and intimidating Americans for speaking their minds.” (See Federal Trade Commission Launches Inquiry on Tech Censorship (February 20, 2025), available at www.ftc.gov/news-events/news/press-releases/2025/02/federal-trade-commission-launches-inquiry-tech-censorship.) Concerns about censorship have already permeated merger enforcement when the FTC required a rare behavioral remedy in Omnicom/Interpublic to address perceived “deliberate, coordinated efforts to steer ad revenue away from certain news organizations, media outlets, and social media networks.” (See FTC Statement (June 23, 2025), available at www.ftc.gov/system/files/ftc_gov/pdf/omnicom-ipg-ferguson-statement_0.pdf.) The DOJ and FTC will likely remain steadfast in their commitment to addressing censorship, including during the competitive effects analysis of a proposed transaction.

Looking ahead

Merger enforcement during the remainder of the second Trump administration will likely continue imbuing pragmatism and predictability while addressing various populist aims. Companies should remain vigilant of the evolving enforcement landscape at the federal and state levels. Merging parties should devise a proactive deal strategy with outside counsel that takes into account all affected stakeholders.

The authors would like to thank Emma Eichler for assistance in drafting this chapter.