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Nov. 18, 2024

Five Predictions for Antitrust Enforcement in the Second Trump Administration

By Denise M. Gunter

Forecasting the future is always a perilous exercise, but here's what my antitrust crystal ball tells me about antitrust enforcement in the second Trump administration.

  1. Melissa Holyoak will become Chair of the FTC. Despite JD Vance's expression of support for Lina Khan prior to becoming the Republican Vice-Presidential nominee, most everyone following this topic seems to think Khan will not stay on as Chair of the FTC in the Trump administration. The real question is who will take over as Chair? Certainly, the President can nominate whomever he likes, but the most likely choice for Chair is current Republican Commissioner, Melissa Holyoak, a strong critic of some of the Biden administration's FTC initiatives.  
  2. Hart-Scott-Rodino Changes Will Take Effect as Planned on February 10, 2025. While many practitioners and their clients might prefer otherwise, the extensive and expensive changes to HSR will go live on February 10, 2025. These changes were adopted with bipartisan support, and HSR, an obscure set of rules unfamiliar to most Americans, is not likely to be a priority for the new administration.  If the post-February 10 era sees an abundance of complaints about increased burden and expense, we eventually may see some refinement of the rules, but not an outright recission. 
  3. The Non-Compete Rule is Dead.  Despite the strong populist appeal of a non-compete ban, the Trump Administration is not likely to support a nationwide ban that impairs employers' freedom of contract and was a signature antitrust initiative of the Biden Administration. 
  4. The 2023 Merger Guidelines will be Rescinded. Unlike the HSR rules, the 2023 Merger Guidelines were not a product of bipartisan support. Certain parts of the Guidelines, such as a focus on labor issues, are not likely to find support in the new administration. It's anyone's guess, however, what a replacement version of the Guidelines would look like.  
  5. Antitrust is Not Dead.  While antitrust was not as front and center in the first Trump administration as it has been in the Biden administration, it would be a mistake to think that an “anything goes” attitude toward antitrust will prevail in the second Trump administration. While fewer merger challenges may be filed in the second Trump administration, do not expect to see the FTC and DOJ dismiss cases that are already in progress and do not expect a more relaxed attitude toward antitrust issues affecting healthcare and technology. The hard work that clients have invested over the last four years on antitrust compliance is still necessary and important, and antitrust lawyers should definitely remain on clients' speed dial.