Antitrust Risk in a New Regulatory Climate
The recent change in leaders in both the United States and Europe has already had a notable impact on the antitrust landscape. Rules are changing—or, at least, their enforcement is taking more novel interpretations—against a potentially paradoxical backdrop of calls for growth and simplification. This trend is likely to continue, with businesses needing to adapt to this uncertainty and prepare for the new regulatory climate, creating both opportunities and threats.
All change at the top
Within just a few weeks, the Trump Administration has brought significant change to the US antitrust landscape. This includes elevating FTC Commissioner Andrew Ferguson to Chair of the FTC, nominating Mark Meador as a FTC Commissioner (who recently received Senate confirmation), appointing Pam Bondi to Attorney General, and Gail Slater to Assistant Attorney General for Antitrust at the DOJ. These new leaders are experienced antitrust lawyers who have pledged to prioritize antitrust enforcement, especially regarding Big Tech. The Trump Administration has further reshaped the antitrust leadership by firing the two Democratic FTC Commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya.1 The FTC is required by law to have a bipartisan makeup, with no more than three commissioners from the same political party, and a majority vote to take any action. The future of the bipartisan five-commissioner FTC is unknown, as Slaughter and Bedoya have sued President Donald Trump, claiming he violated long-established precedent by removing them from their positions, allegedly without cause. Collectively, these personnel developments are likely to have significant implications for the antitrust regulatory landscape and the independence of the FTC.
Across the Atlantic, Europe also has new antitrust leaders. The European Commission’s (“Commission”) newly appointed Competition Commissioner, Teresa Ribera, started her mandate with a “modernization” agenda, part of which is focused on ensuring effective enforcement actions against some of the world’s biggest tech players on the basis of the EU’s Digital Markets Act. In stark contrast to the Trump Administration’s position on ESG collaboration, Ms. Ribera holds the Commission’s “Clean, Just and Competitive Transition” brief alongside antitrust. In addition, as part of this brief, she is carefully considering the findings of the Draghi Report regarding the role of antitrust in increasing European competitiveness. In the United Kingdom, through an unprecedented move, the UK government replaced the Competition and Markets Authority’s (“CMA”) chair with Doug Gurr, a former Amazon UK executive. This was accompanied by the UK government giving the CMA a “strategic steer” and publicly announcing potential changes to the merger regime to make it faster and more certain. These measures form a key pillar of the UK Government’s attempt to remove regulatory barriers to economic growth.
Given the above, global businesses are facing a more uncertain antitrust enforcement climate than ever before, and this climate will differ across jurisdictions. There are opportunities, however, with authorities focusing more on the importance of economic growth in their decision-making than in the past, which could see more consolidation permitted in select, strategically significant sectors.
Aggressive enforcement continues
While leadership at the antitrust agencies has shifted, enforcement actions against transactions have continued. The overhaul of the Hart-Scott-Rodino (HSR) reporting requirements, which was finalized during the Biden Administration, took effect on February 10, 2025. The revised HSR rules require parties to submit more transaction- and industry-related documents, making the process more complex and time-consuming. Chair Ferguson has defended the new rules as necessary to improve efficiency and reduce long-term costs for transacting parties and enforcers.2 In addition, the FTC under Chair Ferguson has not made any move to depart from the stricter transaction enforcement regime that the Biden Administration pursued as part of the 2023 Merger Guidelines. In fact, Chair Ferguson has offered support for the 2023 Merger Guidelines, which lay out a more stringent transaction enforcement regime, lowering the threshold for when a transaction is presumptively anticompetitive, emphasizing the danger of vertical transactions, and giving greater considerations to labor markets. The DOJ, under then-Acting Assistant Attorney General Omeed Assefi, has concurred with the FTC’s approach to the 2023 Merger Guidelines. Since the change of administration, both the DOJ and FTC have brought actions challenging transactions in the wireless networking and medical device industries.3 4
In Europe, the Commission has pledged to review both its horizontal and non-horizontal merger guidelines during 2025, although dramatic changes in approach are not expected. In addition, fundamental overhaul of the EU merger control system to expand the Commission’s jurisdiction no longer seems to be a realistic prospect (at least for now). However, despite a significant defeat for the Commission—which came when the European Union’s highest court held it was not competent to claim jurisdiction over transactions when neither its nor its Member States’ merger thresholds were met—the specter of below threshold merger enforcement remains.5 European competition authorities, including the Commission, continue to push their jurisdiction to the limits, leading to uncertainty for businesses acquiring in Europe. In the United Kingdom, at odds with recent UK government statements, the new Digital Markets Competition and Consumers Act 2024 substantially expanded the UK antitrust enforcement regime, in particular enhancing the CMA’s already very wide discretion to review mergers through the introduction of a new jurisdictional threshold aimed at so called “killer acquisitions,” essentially focusing on the market position of the acquiring party provided only that the target has a “UK nexus.” These developments, taken alongside bolder enforcement of European rules controlling foreign investment and subsidies, make the regulatory climate for multi-jurisdictional deals as challenging as ever.
In parallel to merger developments, the FTC and the DOJ are maintaining their pursuit of behavioral antitrust cases. The FTC and DOJ have continued to litigate high profile cases against Big Tech companies, several of which were brought under the first Trump Administration. In addition, the DOJ and FTC have not backed down from cases the Biden Administration initiated under more novel theories or seldom-used laws such as the Robinson-Patman Act.6 Nonetheless, the FTC’s enforcement priorities are likely to change. Unlike the previous FTC Chair, Lina Khan, Chair Ferguson has rejected a broad interpretation of Section 5 of the Federal Trade Commission Act, which gives the agency authority to challenge unfair methods of competition. Further, antitrust leaders within the Trump Administration have mixed views on the role of AI in the tech sector. European antitrust investigations into Big Tech continue, with notable fines and or behavioral remedies being required from companies in the sector. At the same time, the European authorities have acknowledged the importance of allowing startups to access the investment they need, and encouraging innovation in AI and related infrastructure. This has been particularly notable in the several investigations the authorities opened into partnerships between startups and big tech companies, with protracted periods of time being taken to, ultimately, conclude that merger investigations were not possible or merited.
Despite recent emphasis on growth and business-friendly approaches, the competition landscape continues to lack much-needed legal certainty. As the conflicting pressures and priorities described above battle it out in the minds of antitrust enforcers before reaching a new paradigm, businesses will need to be ready to adapt to evolving regimes, and to respond to regulatory threats—in addition to opportunities—appearing on the horizon. This is a critical period for antitrust to be on the radar of the C-suite.
1 See our Legal Update, “Changes in the Makeup of the FTC May Impact Antitrust Policy.”
2 See our Legal Update, “New HSR Rules and 2023 Merger Guidelines – Here to Stay?”
3 “Justice Department Sues to Block Hewlett Packard Enterprise’s Proposed $14 Billion Acquisition of Rival Wireless Networking Technology Provider Juniper Networks.” Office of Public Affairs, US Department of Justice. 2025.
4 “FTC Challenges Medical Device Coatings Deal.” Federal Trade Commission. 2025.
5 See our Legal Update, “Below the thresholds but on the radar | What’s next after the ECJ's Illumina/Grail judgment?”
6 “FTC Sues PepsiCo for Rigging Soft Drink Competition.” Federal Trade Commission. 2025.
