The Future of Antitrust: Insights from Former Enforcers

With new or incoming leadership at both the Federal Trade Commission (FTC) and the U.S. Department of Justice Antitrust Division (DOJ), the International Center for Law & Economics (ICLE) gathered former antitrust enforcers to explore a critical question: What’s next for these agencies? 

In a conversation moderated by ICLE President Geoffrey A. Manne, experts Bill Blumenthal (former FTC General Counsel), Andrew C. Finch (former Principal Deputy Assistant Attorney General and former Acting Assistant Attorney General for Antitrust), and Maureen Ohlhausen (former Commissioner and former Acting Chair of the FTC) discussed the future of U.S. antitrust enforcement. Click here to watch a recording. 

FIVE TAKEAWAYS:

1. The Politicization of Antitrust Enforcement
   The panelists noted that prior leadership at the FTC and DOJ embraced an explicitly political approach to antitrust enforcement, creating an expectation of aggressive action that attracted significant press coverage. Signs point to the current administration embracing this dynamic. At the same time, they cautioned that “political” can mean different things—from outright White House directives to the broader influence of a political agenda—and some degree of politicization is always present.
2. Shifting Rhetoric & Continuity Across Administrations
   Historically, U.S. antitrust policy maintained an “essential consistency” by focusing on consumer welfare, rather than serving as industrial policy. Several panelists expressed concern that the dramatic move away from this approach started by the last administration risks aligning too closely with European models that treat competition enforcement as a more overt regulatory tool. Nevertheless, it was pointed out that several ongoing tech investigations actually began in the first Trump administration, suggesting more continuity than some realize.
3. Consumer Welfare, Labor Considerations & Economic Analysis
   Noting the new FTC’s intended focus on labor, the panelists discussed how labor concerns, while important in certain cases (e.g., no-poach agreements), can be overstated when used to justify sweeping policy changes. While some panelists acknowledged that labor effects may occasionally inform enforcement decisions, they emphasized that economic analysis, rather than politics or pure theory, should drive case selection and resolution.
4. The Revised Merger Guidelines & Merger Consents
   Panelists agreed that merger guidelines are not outcome-determinative. Nevertheless, they noted that the agencies’ decision to retain the 2023 Merger Guidelines raises problematic questions about how market definition, structural presumptions, and efficiencies will factor into enforcement decisions. The group broadly agreed that consent decrees—whether structural or behavioral—will regain a more central place in merger enforcement going forward, as rejecting them outright in the last administration undermined pragmatic case resolutions.
5. Resource Allocation & Policy Tradeoffs
   Finally, the speakers explored how new leadership will balance ongoing enforcement actions against competing priorities and resource constraints. They pointed out that continuing a weak case drains agency resources and largely agreed that it would be shocking if the agencies didn’t look at ways to resolve pending cases. As one panelist pointed out, food and healthcare prices are more important than tech to most consumers, and the need to prioritize may mean a shift in resources from tech cases to these areas.