The FTC’s Two-Commissioner Deadlock’s Impact on Antitrust Policy

Though Congress established the Federal Trade Commission (“FTC”) as a five-member, bipartisan body with no more than three members from the president’s party, it has not infrequently operated with fewer than five commissioners. Following the President’s removal of the two Democratic members of the FTC and another departure, the FTC is down to just two sitting members, Chairman Andrew N. Ferguson and Commissioner Mark R. Meador, with no indication that there will be a full complement. Although two commissioners constitute a quorum, a 1–1 vote on any matter leaves the FTC unable to act.

A consequence of a two-member FTC became visible in July 2026 when the FTC reviewed IonQ’s $1.8 billion acquisition of SkyWater Technology—a transaction combining a quantum computing company with a US-based semiconductor foundry. After issuing a second request and the subsequent investigation, the two commissioners reached fundamentally different conclusions about the transaction:

• Chair Ferguson found genuine competitive concerns—including risks that IonQ could withhold SkyWater’s fabrication services from rivals, access competitors’ confidential technical information, and exploit high switching costs—warranting a behavioral remedy. Chair Ferguson would have approved the FTC Staff’s negotiated consent order with the parties, which included non-discrimination obligations, information firewalls, switching assistance, an arbitration mechanism, a compliance monitor, and prior-notice provisions for future acquisitions.
• Commissioner Meador disagreed, finding insufficient evidence the deal may substantially lessen competition. He noted that hypothetical foreclosure market shares fell well below legal thresholds, that SkyWater is not a “must-have” supplier, and that substantial federal investment—including the CHIPS Act and the Genesis Mission—is broadening the quantum fabrication ecosystem.

Deadlocked 1–1, the FTC terminated its second request to the companies and the deal closed August 1 without conditions.

This is not the first time the FTC has deadlocked and been unable to proceed. United States v. Microsoft, a seminal antitrust case, was brought by the Department of Justice after the FTC deadlocked 2–2 on whether to bring a complaint after a multi-year investigation. During the first Trump Administration, a 2–2 deadlock was widely credited as hampering the FTC’s ability to resolve its litigation against a technology company that it alleged to have used anticompetitive tactics to maintain a monopoly in the supply of semiconductors. Though the FTC won that case at trial, its victory was overturned on appeal.

The IonQ/SkyWater matter is unlikely to be the last such impasse and potential deadlock, and these deadlocks have practical consequences for deals and enforcement:

• Reduced enforcement risk: Important agency action requires a vote of the FTC, whether that is issuing civil investigative demands or initiating litigation. Transactions that might otherwise face an FTC challenge—or for which closing might be conditioned on a consent order—may proceed unimpeded if the two commissioners cannot agree. Similarly, conduct that the FTC might otherwise challenge may not be challenged.
• Challenges settling enforcement actions: Enforcement actions typically conclude through negotiated consent orders requiring majority approval. A 1–1 split could prevent the FTC from resolving pending matters.
• Strategic timing: Companies contemplating transactions facing FTC scrutiny, or structuring conduct that may be reviewed by the FTC, may find a window of opportunity. For instance, the current commissioners do not necessarily agree on price discrimination and the Robinson-Patman Act and the importance of the consumer welfare standard.
• Rulemaking: Any pending or future rulemaking initiatives could be stalled.

The deadlock will continue until at least one additional commissioner is confirmed by the Senate. A third commissioner has been nominated, but does not appear close to confirmation. While this is pending, the two-commissioner dynamic creates an enforcement environment in which the FTC’s investigative apparatus remains functional, but its decisional authority is constrained.

Because of these rapid developments, it is important to seek legal guidance if your company has questions about antitrust enforcement or is contacted by any enforcement agency. Please do not hesitate to reach out to any of the authors, or any member of the Mayer Brown antitrust team, for further information about this topic and additional developments.