President Trump was just sworn into his second term, and he has already announced his core antitrust leadership, placing him well ahead of where he was in his first term.  He has indicated that he intends to nominate Gail Slater for Assistant Attorney General (“AAG”) of the Antitrust Division at the U.S. Department of Justice (“DOJ”), has designated then-current Commissioner Andrew Ferguson as Chair of the Federal Trade Commission (“FTC”),[1] and nominated Mark Meador for the third Republican FTC Commissioner slot.

Gail Slater’s Professional Background

Gail Slater’s path to the presumptive AAG is circuitous.  Her professional background represents three decades of work as both the regulator and the regulated.  She has held legal and lobbying/policy positions in public and private roles.  While her position on Big Tech apparently has become more aggressive with time, she has experience advocating on both sides of technology regulation issues.

Slater received her legal education at University College Dublin and obtained master’s degrees from Oxford University and University College Dublin.[2]  Upon graduating in 1997, Slater worked at the London office of Freshfields Bruckhaus Deringer LLP in antitrust and mergers and acquisitions.[3]  She left Freshfields in 2004 to work as a staff attorney for the FTC’s Mergers II Division in the Bureau of Competition;[4] it is public that Slater worked on a couple of large transactions, including a case alleging Whole Foods’  acquisition of Wild Oats, a direct competitor, was anticompetitive.[5]  Slater also worked on FTC v. Cephalon, Inc., a 2008 FTC Act Section 5 case alleging that Cephalon, Inc. prevented competition to its branded drug patent by paying all four of the companies with a potential generic (Teva, Ranbaxy, Mylan, and Barr) to abandon their patent applications until 2012.[6][7]

Following her work in Mergers II, Slater served as an attorney-adviser to FTC Commissioner Julie Brill during the Obama Administration.[8]  When Slater was asked in 2019 about her time advising Brill, a Democrat, Slater said that their differing politics were never an issue and “[t]here seemed to be more bipartisan consensus on antitrust policy than there is now.”[9]

In 2014, Slater left the FTC to join the Internet Association, a now-defunct trade group for dozens of large technology companies like Amazon, Google, and Meta (formerly Facebook).[10]  Slater joined as Vice President for Legal and Regulatory Policy and was promoted to General Counsel in June 2016.[11]  During Slater’s tenure, the Internet Association commented on a number of U.S. and E.U. legislative and executive proposals that involved, among other issues, net neutrality, data privacy, and intellectual property.[12]  The Internet Association also filed several amicus briefs advocating for limited government restrictions on web-based systems, including a brief at the Federal Circuit arguing that the International Trade Commission lacked jurisdiction to regulate electronic data.[13]

Slater joined President-elect Trump’s first administration in 2018 as a Special Assistant to the President for Economic Policy and a senior aide on the National Economic Council.[14]  She dedicated her time primarily to the expansion of 5G wireless and issues involving cyber security.[15]  Slater left the administration one year later to take a role with Fox Corporation as Senior Vice President for Policy and Strategy.[16]  In 2022, she became the first in-house registered lobbyist for Roku.[17]  In the company’s Lobbying Report, Roku stated that Slater would lobby Congress on issues related to privacy legislation, antitrust legislation, and potential copyright legislation.[18]

Chairman Ferguson’s Professional Background

Andrew Ferguson holds a bachelor’s degree from the University of Virginia, and he attended William & Mary Law School before transferring and graduating from the University of Virginia School of Law in 2012.[19]  Following graduation, Ferguson clerked for Judge Karen Henderson on the United States Court of Appeals for the District of Columbia Circuit.[20]  After his clerkship, Ferguson worked in Washington as an antitrust associate at Covington & Burling LLP and then as an appellate litigation associate at Bancroft PLLC.[21]  In 2016, Ferguson was selected to clerk for Justice Clarence Thomas at the Supreme Court of the United States.[22]

After his clerkship for Justice Thomas, Ferguson became Senior Special Counsel to then-Judiciary Committee Chairman Chuck Grassley, and then Chief Counsel for Nominations and the Constitution to then-Judiciary Committee Chairman Lindsey Graham.[23]  Ferguson became Chief Counsel to then-Senate majority leader Mitch McConnell in 2019 and worked in that capacity until 2021.[24]  In early 2022, Ferguson was selected to become the Solicitor General of Virginia, where he was involved with a large case brought by several state attorneys general against Google for monopolization of the ad tech market.[25]  The case was brought before the same judge and on similar allegations as the DOJ’s case brought against Google in Trump’s first term.[26]

Ferguson held his position as Virginia’s Solicitor General until President Biden selected him to serve as one of the Republican FTC Commissioners in July of 2023.[27] He was sworn in as a Commissioner in April of 2024.[28]  In his brief tenure as a Commissioner, Ferguson has issued several dissenting statements, often questioning the extent of the Commission’s executive authority and objecting to major policy initiatives on the eve of a new administration.[29]

Mark Meador’s Professional Background

Mark Meador holds degrees from the University of Chicago and the University of Houston Law Center.[30]  Upon graduation from the University of Houston in 2011, Meador worked at the FTC Bureau of Competition from 2011-2016.[31]  At the FTC, Meador was employed in the Healthcare Division, where he worked on pay-to-delay pharmaceutical cases as well as pharmaceutical product hopping.[32]

Following his work at the FTC, Meador went into private practice as an antitrust associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP.[33]

Meador went back to the government in 2019 as a trial attorney in the DOJ’s Antitrust Division, where he worked in the Transportation, Energy & Agriculture Section.[34]  Meador worked on the DOJ’s investigation of the Visa-Plaid merger.[35]

From 2020-2023, Meador served as the Deputy Chief Counsel for Antitrust and Competition Policy to Senator Mike Lee in the Senate Judiciary Committee’s Antitrust Subcommittee.[36]  While in this role, Meador advised Lee on the State Antitrust Enforcement Venue Act and the Merger Filing Fee Modernization Act.[37]

Meador is currently employed as a partner of Kressin Meador Powers, a boutique antitrust firm founded in 2021.[38]

Biden-Harris Antitrust Legacy

The antitrust agencies under the Biden-Harris administration represented more active enforcement than we have seen in the last several administrations, centered largely on what has been called a “neo-Brandesian” approach because of its concern with mere bigness and its rejection of consumer welfare enhancement as the sole goal of US antitrust law.  The legacy of the Biden Administration is likely to be one of mass confusion – while there were several wins from its enforcement efforts, the FTC and DOJ rolled back policy guidance that had been in existence for decades, often without any new or revised guidance to replace it.  Nonetheless, on the very eve of Trump’s Inauguration, then-Chair Lina Khan issued a summary of what she asserted were the key accomplishments of the agency during her tenure, possibly suggesting that the public did not share her views of the benefits of the Biden FTC’s activities.[39]

Perhaps fearing what might be done during Trump’s second administration, and in a significant (and somewhat troubling) departure from traditional Commission activity during “lame duck” periods, the FTC continued to make and enforce significant policy decisions following the 2024 election.  On December 11, 2024, the FTC and DOJ withdrew their Antitrust Guidelines for Collaboration among Competitors, which had been in place since 2000.[40]  The FTC finalized its rule prohibiting junk fees in the short-term lodging and live-event ticketing industries on December 17, 2024,[41] reaffirmed its support of and authority for the non-compete clause final rule on December 31, 2024,[42] and issued an enforcement policy statement concerning the labor exemption from antitrust liability on January 14, 2025.[43]

On January 15, 2025, less than a week prior to President-elect Trump’s inauguration, the FTC brought a right-to-repair suit against Deere & Company.[44]  On the same day, the FTC announced that it was seeking public comment on its proposal to collect information from large-scale single-family rental owner operators on their operating structure, housing inventory, and strategic business plans.[45]  Unlike the Deere lawsuit, this request for comment simply initiates the process for the FTC to later issue information collection orders from these large-scale single-family rental owner operators, if the Commission so chooses.[46]  This inquiry was passed by a 5-0 vote at the FTC, suggesting that the inquiry would likely be continued in the Trump administration.[47]

On January 16, 2025, one business day before President-elect Trump’s inauguration, the DOJ and FTC jointly issued Antitrust Guidelines for Business Activities Affecting Workers, which will replace the FTC and DOJ’s 2016 Antitrust Guidance for Human Resource Professionals.[48]  Ferguson has indicated that he believes that the value in agency guidance is in its reliability from administration to administration,[49] and for that he has critiqued most of the FTC’s policy decisions since the November election.[50]  It is difficult to predict whether the FTC and DOJ will follow Chairman Ferguson’s philosophy about reliable agency guidance and uphold these policies in Trump’s second term, or whether we can expect these “lame duck” policy changes to be quickly withdrawn by the incoming administration.  Nonetheless, Chairman Ferguson’s succinct dissent regarding the issuance of the Workers’ Guidelines perhaps gives a strong indication:  “[T]he Biden-Harris FTC announcing its views on how to comply with the antitrust laws in the future is a senseless waste of Commission resources. The Biden-Harris FTC has no future.”  These Guidelines relate to an issue, discussed further below, on which there is likely substantial agreement regarding the application of antitrust laws to employees; Ferguson’s dissent thus relates solely to the exercise of FTC authority at a time when the current Chair was a lame duck.

Looking Forward: Big Tech

Slater’s broad experience with antitrust and merger regulation is likely to give her a balanced view toward antitrust enforcement.  However, the Trump-Vance Administration’s position on Big Tech will likely encourage Slater to be more aggressive toward the world’s largest technology conglomerates.  While announcing Slater’s appointment on Truth Social, President-elect Trump said that Slater will “Make America Competitive Again” by “ensur[ing] that our competition laws are enforced, both vigorously and FAIRLY with clear rules that facilitate, rather than stifle, the ingenuity of our greatest companies.”[51]

Prior to Trump’s announcement, Slater had been handling technology policies for the presidential transition team and working as an economic advisor to Vice President-elect JD Vance.[52]  Vance has been a vocal supporter of FTC Chair Lina Khan’s scrutiny of Big Tech.[53]  Vance has expressed his desire to break up Google, and suggested that “monopolistic control of information in our society resides with an explicitly progressive technology company.”[54]  While Slater has thus far refrained from public comment on the appointment, her work with Vance and her decade of experience at the FTC suggest that she is likely to continue the Biden Administration’s active pursuit of Big Tech.

As AAG, Slater would inherit cases filed under President Biden’s administration, including those currently pending against Apple,[55] Google,[56] Visa,[57] and Ticketmaster.[58]  Slater would also be responsible for determining the proposed remedy in a monopoly case against Google that was filed during President-elect Trump’s first term.[59]

Slater’s appointment is a welcome announcement for Big Tech critics, as many feared the incoming Trump Administration would relax the antitrust enforcement of the last four years.[60]  Following the DOJ’s Google win this past August, Trump was hesitant to call for the breakup of Google (an unlikely remedy in any event, which has been subject to criticism by others),[61] but his announcement of Slater’s appointment condemned Big Tech as “running wild” and “stifling competition in our most innovative sector.”[62]  Ferguson praised Trump’s appointment of Slater to the DOJ, claiming she was “a perfect pick” as an “antitrust lawyer who understands the unique challenges of Big Tech, but also wants to promote growth and innovation.”[63]

Trump’s appointment of Ferguson as Chairman and anticipated nomination of Meador suggests that he expects the antitrust scrutiny of Big Tech to continue at the FTC, as well.  Trump has stated he expects Ferguson to be “the most America First, and pro-innovation FTC Chair in our Country’s History.”[64]  In response to his own expected appointment, Ferguson stated that “[the FTC] will end Big Tech’s vendetta against competition and free speech.  We will make sure that America is the world’s technological leader and the best place for innovators to bring new ideas to life.”[65]

Ferguson has primarily focused on free speech issues related to Big Tech, which is consistent with the broader Trump/Republican political platform.  He has expressed concern about the potential for collusion when major social media platforms contemporaneously choose to suppress what Ferguson calls “ideas and speech inconsistent with progressive orthodoxy.”[66]  He has also stated that he intends to direct the Commission’s focus toward the harmful effects of advertiser boycotts on Big Tech platforms that do champion free speech.[67]  Ferguson has suggested that the Commission is charged with investigating and “bust[ing] up” collusive cartels that might restrict competition through the suppression of free speech.[68]  This raises two questions: whether Ferguson’s free speech frustrations with Big Tech are likely to impact his approach to antitrust claims against Big Tech, and whether his focus on the harms of circumscribed speech could lead to innovation in pursuing anticompetitive conduct causing non-price injuries to free speech rights.  Recently, and perhaps in an effort to blunt concerns about its news-dissemination role, Meta announced that it would no longer fact check postings.[69]

Ferguson takes control of the Commission at a time when the FTC is currently involved in litigation against Facebook[70] and Amazon,[71] and is appealing two district court decisions that block the FTC rule banning non-compete clauses in employment agreements.[72]  As discussed below, Ferguson has been a critic of that rule.

Looking Forward: Employment and Labor Markets

Under the first Trump Administration, the DOJ had increased the government’s focus on employment-related restraints on competition, with then-AAG Makan Delrahim stating that “employers who conspire to fix wages of workers or restrict their mobility by allocating labor markets will be prosecuted to the fullest extent of the law.”[73]  Trump’s DOJ brought a novel indictment against an employer for conspiring to reduce employee wages.  Trump’s DOJ was also responsible for indicting two employers who agreed not to solicit each other’s senior-level employees.

The Biden Administration continued and intensified the attention paid to employment- and labor-related restraints, making labor markets a key focus of enforcement priorities.  While Trump’s appointment of Slater suggests that employment is not the primary focus of the incoming administration, we are unlikely to see Slater and the DOJ reverse the efforts made in Trump’s first term, or even those made during the Biden Administration.

At the FTC, we may see some backpedaling with respect to the FTC’s position on employee non-competition agreements.  The FTC passed a rule banning certain kinds of non-competition clauses in employment agreements in April 2024.[74]  Joined by Republican Commissioner Melissa Holyoak, Ferguson issued a dissenting statement arguing that the rule was “the most extraordinary assertion of authority in the Commission’s history.”[75]  He maintained that the FTC’s ban was unlawful without Congressional approval and was a violation of the Constitution and the Administrative Procedure Act.[76]  Ferguson engaged in a detailed review of the FTC’s historical practices, arguing that the precedent demonstrates why the FTC does not have the same rulemaking power over unfair competition as it does for deceptive trade practices.  The FTC’s Non-Compete Clause Rule has been challenged and blocked by two district courts since the final rule was issued, and the FTC is currently appealing those rulings in the 5th and 11th Circuit Courts of Appeal.[77]  The FTC’s vote to issue the final rule passed in a 3-2 majority along party lines; the Commission’s incoming Republican majority is likely to abandon any attempt to defend the final non-compete rule.

While the FTC is unlikely to enforce a federal ban on employee non-competition agreements, Ferguson has maintained the position that the Commission should “devote resources to protecting competition in labor markets.”[78]  Ferguson’s expressed hesitancy to revoke the merger guidelines put in place by the current FTC and DOJ, discussed in more detail below, also suggests that the current focus on the impacts of proposed transactions on labor markets may continue at the FTC under the new administration.

Looking Forward: Mergers

Based on appointment of Ferguson as Chairman and anticipated nomination of Meador to the FTC, we expect the incoming administration to continue with the implementation of the modified Hart-Scott-Rodino (“HSR”) Act premerger notification form that the FTC finalized in October of this year.[79]  The FTC substantially modified the HSR premerger notification form—following notice and public comment—to require additional information on a variety of topics, including identifying minority shareholders who have management rights, potential labor effects of the proposed transaction, and the effects of the transaction on nascent competition.[80]  The vote to adopt these changes was 5-0, with Ferguson voting in favor.[81]  Ferguson issued a concurring statement with the decision, stating that the final rule was a marked improvement over the notice of proposed rulemaking that he strongly opposed three years prior.[82]   Ferguson stated that the rule would read very differently if he were the sole decision maker, but that he believed the final rule was “a lawful improvement over the status quo.”[83]  While it is possible that the Trump Administration will attempt to modify the new HSR form, any proposed changes would require another lengthy period of FTC notice and comment rulemaking; the incoming administration is unlikely to prioritize resources for such a process given bipartisan support for the changes that will soon take effect.[84]

Notably, Ferguson has also indicated hesitation to rescind the 2023 merger guidelines issued under the Biden Administration.[85]  Unlike the notice-and-comment rulemaking process involved with changing the HSR form, the merger guidelines may be issued or rescinded by DOJ or FTC at any time.[86]  Under the Trump Administration, the FTC and DOJ jointly promulgated updated Vertical Merger Guidelines in 2020[87]; the Biden Administration replaced these guidelines with a more extensive primer in 2023.[88]  Ferguson has indicated he believes that the current guidelines are largely based on longstanding precedent, and so long as courts continue to use and follow the guidelines, he does not see reason to rescind them altogether.[89]  Ferguson has stated that he would only seek minor revisions to the existing guidelines, because he values predictability in agency guidance and believes the guidelines would become “useless to everyone” if they were rescinded and replaced each time that a new chair was appointed.[90]  These statements appear consistent with the trend in the first Trump Administration, where vertical transactions (e.g., AT&T/Time Warner) and concerns with nascent competition garnered attention in order to fill the “gaps” perceived in enforcement.  Nonetheless, Ferguson’s desire for predictability in agency action appears to stand in contrast to the Biden Administration’s desire to be unpredictable, in part to discourage transactions.[91]

Another subtle area of potential change between the second Trump and the Biden Administrations may appear in their attitudes toward buyer-side concentration.  Consistent with the Biden Administration’s keen focus on employment market restraints, it also successfully challenged a proposed merger between Penguin Random House and Simon & Schuster on the theory that combining the publishing giants would reduce competition in the market for authors and decrease the dollar value of advances paid to authors.  Whether the Trump Administration embraces this concern is unclear:  historically, the antitrust agencies have focused less on monopsonies and buyer-side market power due to the possibility that these could actually reduce prices for consumers.

Looking Forward: Pricing

Presumptive Commissioner Meador has also commented on the importance of predictability in agency action.[92]  Meador criticized the DOJ and FTC’s repeated failure to fulfill their “duty” to investigate and enforce conduct violative of the Robinson-Patman Act; he argues that the executive branch should not be allowed to ignore Congressional laws simply because it does not agree with them.[93]  While Meador acknowledges that the Robinson-Patman Act will not always serve the consumer welfare standard, he argues that it is the responsibility of the DOJ and FTC to exercise their prosecutorial discretion and pursue Robinson Patman Act claims where they have evidence of consumer harm due to price discrimination.[94]

Meador’s position tees up an interesting issue in light of the FTC’s recent decision to resurrect Robinson-Patman Act enforcement.  On December 12, 2024, the FTC announced that it was bringing its first Robinson-Patman Act claim in decades, premised on alleged price discrimination within the wine and liquor retail industry.[95]  On January 17, 2025, three days before the inauguration of a new administration, the FTC announced that it was bringing a second Robinson-Patman Act suit, this one focused on alleged discrimination in allowances or services furnished by Pepsi to a certain big box retailer.[96]  The sitting Republican Commissioners, Ferguson and Holyoak, dissented from both of the FTC’s decisions to bring a challenge, suggesting that if Meador is seated, there may be disagreement among the Republican commissioners when it comes to the use of prosecutorial discretion to pursue pricing discrimination.[97]  Nonetheless, Ferguson’s primary concern appears to be that the cases the FTC chose to bring were weak and insufficiently investigated; he asserts that the FTC is unlikely to show any harm to consumers or the market more broadly, perhaps reflecting a recentering of enforcement based on a consumer welfare standard.[98]

Looking Forward: Criminal Enforcement

New criminal cases filed by the Antitrust Division have marginally decreased while Biden was in office,[99] though the Antitrust Division under Biden has also reported more active grand jury investigations than at any other point in the last 30 years.[100]  We therefore expect criminal cartel enforcement to remain roughly the same under the second Trump Administration as it was under the Biden Administration.

Looking Forward: International Cooperation

In an increasingly global marketplace, international cooperation among competition authorities has become key when it comes to mergers, cartels, and platforms.  Given her experience and training in foreign judicial systems, Gail Slater seems well positioned to meaningfully engage in such cooperation, absent directions from higher up to take a more isolationist approach.

Conclusion

Trump’s three anticipated antitrust enforcers have all indicated a conservative populist ideology, display an interest in regulating Big Tech, and represent decades of experience in both public agencies and private practice.  While we cannot predict with certainty how these enforcers will run the antitrust arms of the DOJ and FTC, we generally expect them to take a measured approach to antitrust investigations and enforcement actions, likely through a somewhat more traditional antitrust lens than that used by the Biden Administration.  We do expect them all to generally reject the neo-Brandesian approach seen during the Biden Administration, with consumer welfare returning to the core of decision-making.  At the same time, we can also expect the agencies to respond to any desires that the Trump Administration might have to seek enforcement against companies that are viewed as proposing transactions or engaging in conduct that is contrary to the Administration’s political agenda.  The likelihood of such discretionary, politically motivated action strongly suggests that the second Trump Administration will retain some of the unpredictability seen during the first Trump Administration which was continued and enhanced during the Biden Administration.

This content was originally published on January 22, 2025, via the International Law Office (ILO) newsletter. It can be found here: Antitrust in the Second Trump Administration – Massive Shift in Enforcement or More of the Same?

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