Corporate Counsel Daily, First year of Trump 2.0 examined by ABA Spring Meeting panel, (Mar 25, 2026)

By Jeffrey May, J.D.

Antitrust attorneys, including former officials from Trump's first term, consider enforcement and policy trends over the past year.

During the first year of President Donald Trump’s second term, the heads of the federal antitrust agencies have spoken of a pro-enforcement agenda focused on issues of interest to everyday Americans, such as health care and food prices. At one of the first sessions kicking off the 74th Annual Spring Meeting of the American Bar Association Section of Antitrust Law in Washington, D.C. on March 25, a panel of former agency officials discussed the agencies’ approaches and also questioned whether the agencies have followed through on the promises.

The speeches of Trump 2.0 antitrust officials provide a sense of the policy objectives of the antitrust agencies, according to Michael Murray, a partner at Paul Hastings. Recent speeches from officials at both the FTC and Department of Justice Antitrust Division, demonstrate a pro-enforcement stance and a focus on “kitchen-table” or “pocket-book” issues that ordinary Americans can relate to, said Murray, who served as the principal deputy assistant attorney general during the first Trump Administration.

In her first antitrust address, Gail Slater, former Assistant Attorney General (AAG) in charge of the Antitrust Division, discussed a conservative case for vigorous antitrust enforcement and an America-First approach to antitrust. Omeed A. Assefi, the current acting antitrust chief, has since made the case for aggressive enforcement in remarks delivered at George Washington Law School on March 23. And FTC Chair Andrew Ferguson is on the record calling for deregulation.

Because the Republican party has often been stereotyped as less enforcement-oriented, the current agency heads are looking to demonstrate a pro-enforcement stance, panelist Taylor Owings explained. Owings, a partner at Wilson Sonsini and former counsel to the Antitrust Division AAG and former chief of staff during the first Trump Administration, added that the agencies are not looking to rein in antitrust.

However, Jennifer Milici, vice chair of the antitrust practice at WilmerHale, questioned whether the policy pronouncements have followed through on investigations and enforcement. Investigations and other activity appeared to Milici—a former chief trial counsel in the FTC Bureau of Competition—to focus on political issues rather than pocket-book issues. At the FTC in particular, the agency seemed to be focused on Diversity, Equity, and Inclusion (DEI) and content moderation, she noted.

Owings did point to a difference between the agencies during first Trump administration and Trump 2.0. According to Owings, during the first Trump Administration the agencies were trying to demonstrate independence from the President. She now sees a very different approach being pursued under the unitary executive theory. For instance, FTC Chair Andrew Ferguson does not view the agency as independent, according to Owings. As for the Antitrust Division, Owings noted that the Justice Department attorneys admitted, during a March 23 Tunney Act hearing on the proposed settlement in the Hewlett Packard Enterprise Co./Juniper Networks, Inc. merger challenge, that national security concerns were in the background of the decision to settle the case. Federal lawmakers have questioned whether the settlement was the result of political favor.

Merger enforcement, policy. The panel also discussed the decisions of the agencies to continue to support moves made during the Biden Administration with respect to mergers. Specifically, the agencies decided to maintain the Biden Administration's 2023 merger guidelines and to support the new premerger notification form in litigation now pending in the Fifth Circuit.

With respect to the merger guidelines, Milici suggested that the decision not to withdraw the guidance could have been the result of staffing constraints. Writing guidance is a resource intensive task. Milici contended that the decision to maintain the merger guidelines made sense in light of the Department of Government Efficiency or DOGE “push” in the early days of the second Trump Administration.

Owings noted that the decision might have been made at least in part based on the fact that the agencies were not bound by the guidelines. They could use them at their discretion.

In light of the discretion, Milici said that the release of “interpretive statements” from the agencies to understand what portions of the guidelines the agencies are following would be helpful. She noted that this had been done in previous administrations.

Concerns remain about the “chilling effect” on procompetitive mergers and acquisitions as a result of maintaining the 2023 guidelines. Alexander Okuliar, chair of the global antitrust practice group at Morrison & Foerster and deputy assistant attorney general for civil antitrust enforcement during the first Trump Administration, identified needed changes for the guidelines. For instance, he pointed to the burden arising from Guideline 8 pertaining to requests for additional information from merging parties around serial acquisitions. Okuliar questioned whether this information is needed for a standard deal review or whether it would make more sense under a Sherman Act, Section 2 investigation into monopoly conduct.

The current agency leadership decided not to retract changes to the Hart-Scott-Rodino (HSR) premerger notification form made by the Biden Administration, despite criticism of the burden imposed on merging parties and pending litigation that calls the new form into question. The fate of the form is currently in the hands of the U.S. Court of Appeals for the Fifth Circuit. The appeals court denied a stay that would have required HSR filers to continue to use the form pending the appeal of a district court decision rejecting it. One the same day as the panel, the agencies launched a joint public inquiry regarding the effectiveness of the HSR premerger reporting requirements.

The most significant change in merger enforcement during the first year of Trump's second term has been the agencies’ willingness to engage in settlement discussions and actually enter into settlements. According to Okuliar, the agencies have gone back to focusing on divestitures of stand-alone businesses. He noted that the agencies are engaging in detailed discussions around divestitures.

Michael Murray, another Antitrust Division veteran who currently is co-chair of the antitrust practice at Paul Hastings, explained that the antitrust enforcement must consider issues such as resource allocation. Antitrust enforcement is not about pure antitrust law, he explained.

Another major change identified by Milici was the plan by the FTC to bring merger challenges directly to federal court and not to use its own administrative litigation. She said that the change would likely cause “reverberations” for some time. It raises the question about why two federal agencies are challenging mergers.

Competitor collaborations. All panelists supported the need for more guidance from the agencies. The agencies in February opened a public inquiry, seeking public comments on the need for guidance on collaborations among competitors. Earlier guidance was withdrawn in 2020.

Owings remarked that it is important to correct a mistake of last administration of pulling down a lot of guidance without putting up new guidance. She noted that the lack of guidance deters procompetitive activity. There is confusion around collaboration in the form of algorithmic pricing and product quality certifications, Owings added.

As the panel, moderated by Freshfields partner Andrew Ewalt, discussed what issues might be discussed at next year’s Spring Meeting, Okuliar suggested there might be new competitor collaboration guidelines by that time.

Attorneys: Michael Murray (Paul Hastings LLP); Taylor M. Owings (Wilson Sonsini Goodrich & Rosati); Jennifer Milici (Wilmer Cutler Pickering Hale and Dorr LLP); Alexander Okuliar (Morrison & Foerster LLP); Andrew Ewalt (Freshfields).

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