PRESUMED INNOCENT: A RETURN TO DEAL-FRIENDLY ANTITRUST
Parties to strategic M&A seem to increasingly face a regulatory environment that shifts dramatically with administrations, particularly in the US. The last two presidential election cycles (2020 and 2024) have witnessed drastic changes in the posture of federal antitrust enforcement, though it can be hard to tell how much of the shift is rhetorical and how much is real.
This article outlines the most consequential changes likely to shape companies’ strategic transactions.
First, some context. In Washington DC, the rhetoric surrounding any given policy push can often foretell its lifespan. When relevant praise approaches that of, say, literacy or motherhood, the policy’s demise can typically be timed to the next regime change. By that metric, few Biden-era initiatives faced a clearer expiration date under President Trump than the administration’s strident, near-messianic approach to antitrust.
For a time, no social ailment – inequality, democratic decay, even racism – seemed beyond the reach of a properly deployed antitrust statute. Rebecca Kelly Slaughter, former commissioner of the Federal Trade Commission (FTC), who was fired by President Trump earlier this year, captured that spirit in 2020: “I don’t think there has been nearly enough discussion about whether our #antitrust laws can play a role in racial equity. I think the answer is yes!”
The death knell for this brand of populist progressive antitrust – sometimes dismissed as ‘hipster antitrust’ – has rung repeatedly in Washington in recent months. A series of federal actions, inactions and reversals have shredded boundaries once fiercely guarded by Lina Khan and Jonathan Kanter, Biden-era enforcers at the FTC and the Department of Justice (DOJ). Their successors, Andrew Ferguson and Gail Slater, have embraced a far more permissive posture. While it will take time for the new approach to settle, one thing seems clear: the centre of gravity in antitrust enforcement has shifted upstream, noticeably closer to the Oval Office.
Jan-Mar 2026 issue
Baker Botts