The way the federal government enforces competition laws will likely change in Donald Trump’s second term but it won’t be a cakewalk for companies trying to push the antitrust envelope because the new administration brings a populist bent that won’t allow that, antitrust specialists say. 

“Given Trump and JD Vance’s embrace of populist themes, we anticipate continued scrutiny of mergers, although not an inherent skepticism of M&A activity,” Justin Stewart-Teitelbaum, an antitrust partner at Freshfields and a former FTC attorney, told Legal Dive in an email. 

One of the first things to go away will likely be the merger guidelines the Biden administration finalized in October. The guidelines are “very hostile to mergers and acquisitions,” Jon Dubrow of McDermott Will & Emery said in a Reuters report. 

That view is shared by at least one of the Republican-appointed commissioners on the Federal Trade Commission, Melissa Holyoak, who voted to approve the guidelines after changes were made but considers them an overreach. 

“I would strongly consider rescinding or revising them,” she said at a forum hosted by George Mason University.  

Her concerns stem in part from the guidelines downplaying the role of economics in analyzing mergers and acquisitions, Bloomberg Law reported. 

Trump will have the opportunity to replace FTC Chair Lina Khan, who spearheaded the guidelines and has become the face of Biden’s aggressive antitrust approach.

Whether the new chair is Holyoak or the other Republican-appointed commissioner, Andrew Ferguson, or someone else, the agency won’t be able to rescind the guidelines unilaterally; it will need the cooperation of DOJ’s antitrust division, which developed and administers the guidelines jointly with the FTC. But given who Trump is considering for DOJ leadership roles, according to a Politico report, getting agreement between the two agencies might not be hard.  

Trump will pick “somebody who’s totally obsequious,” Ty Cobb, a former Trump administration lawyer, said in the report. 

Even without the guidelines, the new FTC and DOJ leadership will continue to go after Big Tech, analysts say. The difference will be in how the agencies evaluate the competitive risk companies pose when they propose a merger.

Enforcement will be grounded in “economic analysis” and “legal precedent,” Stewart-Teitelbaum told Legal Dive. 

Trump made it clear in his first term he’s open to scrutinizing Big Tech, according to a report commissioned by Axinn, Veltrop & Harkrider, a law firm specializing in antitrust enforcement. 

During Trump’s first term, the report shows, the FTC launched a task force to scrutinize the kind of competition issues that arise when technology companies enter certain markets, and two of the biggest antitrust cases against technology companies — DOJ’s search engine case against Google and the FTC’s monopoly case against Meta — were launched. 

“Trump is expected to continue cases against Big Tech,” the Reuters report said. 

If the agencies end up pursuing an aggressive agenda, they probably won’t get push back from Vice President-elect JD Vance; he’s embraced an activist antitrust agenda, and has even applauded the approach Lina Khan has taken. 

“I look at Lina Khan as one of the few people in the Biden administration that I actually think is doing a pretty good job,” Vance said in February.  

Aggressive enforcement is supported in the controversial policy roadmap developed by the Heritage Foundation called Project 2025, which calls for a hard look at the way technology companies are changing competition issues. 

Big tech “developments may warrant the FTC’s making a careful recalibration of certain aspects of antitrust and consumer protection law and enforcement,” the document says in the section on FTC issues.

For in-house counsel, getting deals through over the next four years could mean coming prepared with proposals for divestitures and other changes that do enough to address concentration issues, Stewart-Teitelbaum says. 

“We … anticipate fewer litigated merger challenges and instead a return to accepting remedies that are determined by FTC or DOJ to address concerns about potential harms, with a continuing preference for structural remedies,” he said.