President Trump’s selection of Andrew Ferguson to Chair the Federal Trade Commission (FTC) and Gail Slater to head the Justice Department’s Antitrust Division raised concerns among some free market advocates that Ferguson and Slater would pursue a right-wing version of Biden-era antitrust policy. Such fears seemed to be confirmed when Chair Ferguson and Deputy AG Slater announced that they would retain the 2023 “revised” merger guidelines. Those guidelines justified expansive use of antirust policy to block almost any merger or acquisition for almost any reason.
The FTC also decided to continue the agency’s flawed lawsuit against META (parent company of Facebook, WhatsApp, and Instagram) and Amazon. The Justice Department also raised concerns when they continued the Biden Justice Department’s efforts to force Google to sell its popular Chrome browser as part of the remedy for being found guilty of violating federal antitrust laws. This lawsuit was just an attempt to punish Google for the “crime” of being too successful.
However, recently Ferguson and Slater have taken several actions reversing Biden-era antitrust policy. For example, in one week the FTC and the Justice Department approved three transactions with a combined worth of over $63 billion. One of the transactions was Mars candies (maker of Life Savers, Three Musketeers, Starburst, and other popular snacks) and Kellanova (maker of Pringles, Pop Tarts, Cheez Its, and other popular snacks). Under Ferguson’s leadership, the FTC staff has returned to the pre-Biden practice of trying to speed up review and approval of mergers and acquisitions.
Federal law requires businesses to wait 30 days before finalizing a merger or acquisition that requires approval from the government. But federal regulators can allow companies to complete the transition in a shorter time if the regulators determine that the deal does not “raise competitive issues.” According to FTC data, the agency has granted expedited approval for over 100 deals since President Trump returned to the Oval Office. The Justice Department is also expediting the time it takes to approve mergers and acquisitions. William (Bill) Rinner, Gail Slater’s deputy in charge of merger enforcement, described the Department’s policies based on the belief that “deals that are pro-competitive or competitively neutral should be able to proceed without a lingering regulatory review tax.”
This approach to approving deals may seem like a dereliction of duty to Biden-era FTC Chair Lina Khan, Justice Department Antitrust Chief Jonathan Kanter, and their allies since they never saw a merger they did not want to block. But most would say the Ferguson-Slater approach is simply common sense. Another positive change that Ferguson and Slater have made is reviving settlements. Settlements allow companies to obtain approval for mergers and acquisitions if they take certain actions to address the government’s concerns that the action would make markets less competitive. The Justice Department recently reached a settlement with Hewlett-Packard Enterprises allowing the company to acquire Juniper Networks. Hewlett had to sell their wireless network Instant On and license the code for Juniper’s Mist AI software. Forcing companies to make a “settlement” with the government before they can enter in a merger or decision is not ideal, but it is far superior than simply blocking these transactions.
The FTC reached a settlement allowing advertising agency Omnicom to complete its $13.5 billion acquisition of fellow advertising giant Interpublic, as long as the companies agreed to not allow “political” considerations to influence where they place their clients' ads. This is motivated by a belief that major advertising agencies are engaged in a conspiracy to stop companies from advertising on conservative websites. This ignores the fact that there may be legitimate reasons for a business to avoid advertising on websites with political content that offend their consumers.
The FTC has also sent a “request for information” to the progressive media watchdog group Media Matters. The agency is seeking copies of all communications between the group and other progressive watchdogs and advertising organizations attempting to convince businesses to pull their ads from conservative sites. The FTC’s actions in this case infringe on these companies' First Amendment rights. These are just two examples of Ferguson and Slater’s use of antitrust policy to punish “woke” companies. Supporters of free markets and limited constitutional government can only give at most two cheers for MAGA antitrust.
