Antitrust Law Daily Wrap Up, AGENCY NEWS: FTC Commissioner Melissa Holyoak steps down, (Nov 18, 2025)
Organizations Mentioned:Competitive Enterprise Institute | O'Melveny & Myers, LLP
President reportedly has a nominee lined up to fill the vacancy left by Holyoak, who was appointed interim U.S. Attorney for Utah District. Changes come as Supreme Court set to consider firing of Democratic commissioner.
Melissa Holyoak departed the FTC on November 17 after serving as a commissioner since March 2024 for a new job at the Department of Justice. She is now the Interim U.S. Attorney for the District of Utah.
Prior to joining the FTC, Holyoak served as Solicitor General with the Utah Attorney General’s Office. She also served as president and general counsel of Hamilton Lincoln Law Institute, a Washington, D.C.-based public interest firm and in other public interest attorney positions with the Competitive Enterprise Institute and the Center for Class Action Fairness. She also was an attorney with O’Melveny & Myers LLP.
In an FTC statement, FTC Chair Andrew Ferguson said that he would be “rooting” for Holyoak in her new role. “As US Attorney she will be a fearless champion for the people of Utah and for President Trump’s Golden-Age agenda,” he added.
Ferguson also took to X (formerly Twitter) to praise Holyoak for being “an excellent antitrust and consumer protection lawyer and one of the most productive Commissioners in recent memory.” Ferguson said that he learned a lot from her “hundreds of pages of thoughtful concurrences and dissents” while they were on the Commission together.
Down to two commissioners. The move leaves the Commission with only two members: Chair Ferguson and Commissioner Mark Meador. A fully-staffed Commission has five members.
A Commission operating with two commissioners is not unprecedented. Earlier this year, Ferguson and Holyoak were the only two members of the FTC after President Donald Trump fired the two commissioners who were from the Democratic party—Rebecca Slaughter and Alvaro Bedoya. Although the Commission continued to operate, the existence of only two commissioners raises potential issues in moving forward with priorities, such as in the event of a split vote among the remaining commissioners. However, this is unlikely with the current commissioners.
Both Ferguson and Meador are Republicans. (Holyoak also was a Republican.) Only three Commission members can be from the same political party. As a result, Trump could nominate another Republican to replace Holyoak.
Nominee in the wings? Now that Holyoak has departed the FTC, the White House could officially announce an FTC nominee to replace her soon. Reports have circulated that Trump might nominate Ryan Baasch, a member of the National Economic Council (NEC). According to the Federal Society website, Baasch is as a Special Assistant to the President at the NEC “where he focuses on cutting-edge technology issues at the frontier of AI regulation, space commercialization, and telecommunications networks.”
Prior to joining the Administration, Baasch served in the Texas Attorney General's office. Among the roles at the AG’s office, he served as chief of the Consumer Protection Division.
Fate of fired Democratic commissioner. The membership of the FTC will continue to be in the news as the U.S. Supreme Court is scheduled on December 8 to hear arguments about Trump’s firing of Slaughter. Presently, Slaughter is not an FTC commissioner, but she could be back at the Commission if the Supreme Court finds that Trump lacked authority to fire her.
In March, Slaughter sued Trump over her firing. Slaughter argued that Section 1 of the FTC Act provides that removal of a commissioner by the President can only be based on "inefficiency, neglect of duty, or malfeasance in office” and that the 90-year-old decision in Humphrey’s Executor v. U.S., 295 U. S. 602 (1935) “unanimously affirmed the constitutionality of the statutory tenure protections.”
After a federal district court granted summary judgment in favor of Slaughter, a split panel of the D.C. Circuit denied a request from the Trump Administration for a stay pending appeal. The Administration contended that the lower courts erred in their “unduly expansive reading of Humphrey’s Executor that ignores [the Supreme] Court’s more recent precedents.”
On September 22, the Supreme Court stayed the district court judgment. It treated the application for stay as a petition for a writ of certiorari before judgment and granted the petition for review.
The parties were directed to brief and argue the following questions: (1) Whether the statutory removal protections for FTC members violate the separation of powers and, if so, whether Humphrey’s should be overruled; and (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
Nearly three dozen friend-of-the-court briefs have been filed in the case. Overwhelmingly, the amici have sided with Slaughter’s position. Among these, a brief filed by former Republican and Democratic FTC chairs calls on the Court to reject the President’s assertion of the power to remove FTC commissioners at will. Likewise, a total of 207 House and Senate Democrats sided with Slaughter. On the other hand, Senator Eric Schmitt (R., Mo.), who chairs the Judiciary Committee’s Subcommittee on the Constitution, takes the position that Humphrey’s Executor’s exception to the President’s removal power is not consistent with the Constitution.
A decision from the Supreme Court is expected next year.
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