The first seven months of President Trump’s term have brought a shift in the antitrust enforcers’ approach to issuing policy statements and other guidance related to competition law.  Although the FTC and DOJ under President Biden issued significantly overhauled merger guidelines and new FTC regulations related to mergers and non-competes, this administration has avoided what it views as costly and burdensome processes related to revising or creating new guidance.  Moreover, President Trump previously issued an executive order requiring agency heads to review their regulations and consider rescinding those that restrain competition in any way, while, under Biden, agencies were ordered to consider implementing new regulations promoting competition.

The Trump Administration’s approach reveals a paradox: both the Biden and Trump Administrations asserted that their approaches would promote more competition, yet the two administrations have taken opposite approaches, with one encouraging the promulgation of more regulations and the other seeking opportunities to eliminate regulations.

This paradox has come into sharp focus with President Trump’s recent revocation of a sweeping executive order from President Biden, which had encouraged the creation of guidance and new regulations targeting anti-competitive conduct throughout the executive branch in what the administration called a “whole of government” antitrust policy.  In contrast to the approach of the Biden Administration, the Trump Administration is insistent that the agencies will not undertake expensive rulemaking and guidance-creating processes of their own accord, but, in some instances, will continue to rely on guidance put in place by the FTC and DOJ under Biden.  Meanwhile, the current administration’s only newly issued guidance comes directly from on high, put in place through narrowly focused Executive Orders from President Trump himself.

The Revoked Executive Order

On August 13th, President Donald Trump rescinded Executive Order 14036, which was former President Biden’s order titled “Promoting Competition in the American Economy.”  Biden’s executive order created a multi-industry “White House Competition Council” comprised of various cabinet-level officials charged with coordinating and implementing actions to address competition issues in the United States.  The Biden order instructed the competition agencies to evaluate guidelines and standards then used to investigate and enforce the U.S. antitrust laws, including the horizontal and vertical merger guidelines. Biden’s order also specifically encouraged the FTC to consider using its rulemaking authority to address the legality of non-compete agreements and to address seven other types of practices that may have anti-competitive effects on the market.

Biden’s Executive Order subscribed to a “whole of government” approach to competition enforcement, charging leadership outside of the competition agencies, such as the Secretaries of Transportation, Commerce, and Agriculture, to investigate and consider taking specific actions—including rulemaking—to promote competition in the U.S. marketplace.

Purpose of Revocation

President Trump’s revocation of Biden’s order is consistent with the DOJ and FTC’s behavior thus far, as the agencies have published far fewer policy statements than previous administrations and expressed skepticism regarding the need for published guidance.  The Trump Administration has, however, continued to support some of the Biden Administration’s competition policies, such as the 2023 Merger Guidelines, the more fulsome HSR form that became effective this past February, and other guidelines implemented in the last days of the Biden Administration (for more information, see Antitrust in the Second Trump Administration).

FTC Chair Ferguson has explained that the agencies’ continued reliance on these documents demonstrates stability and efficiency within the agency, as recission and reworking of guidelines is time-consuming and expensive.  Ferguson’s statement about President Trump’s revocation of EO 14036 reiterated this position, namely stating that the FTC will be devoting its limited agency resources toward enforcing the antitrust laws passed by Congress instead of creating “top-down competition regulations” like the previous administration.  Assistant Attorney General for Antitrust Gail Slater echoed this statement for the DOJ, commending the President for the revocation and for promoting competition via tailored executive orders instead of an “overly prescriptive and burdensome approach.”

Guidance Vacuum

In the final months of the Biden Administration, the FTC and DOJ withdrew numerous significant policy statements that had been in force for decades prior.  This withdrawal included some industry-specific guidelines, such as guidelines for bank mergers and three policy statements on competition in health care industries.  They also withdrew the joint FTC and DOJ “Antitrust Guidelines for Collaboration among Competitors,” which had been widely used by the competition agencies since 2000.  It appears unlikely the current administration will issue replacements for those guidelines, given the administration and the agencies’ continued touting of agency efficiencies and avoiding burdensome and costly drafting processes.

President Trump’s preference for tailored executive orders over creating agency guidance, when combined with the previous administration’s actions to withdraw a significant number of guidance documents, has left a guidance vacuum making it harder for market actors to determining the line between permissible and impermissible conduct.  This reduction in policy guidance permits the FTC and DOJ greater flexibility in their enforcement of the antitrust laws, but that comes at the cost of reliability and predictability for market participants, which can in turn discourage efficient transactions and conduct.  Apart from companies in the sectors targeted by President’s Trump specific orders, such as his Executive Order on Competition in the Commercial Space Industry and on prescription drug prices, decision-makers are left to rely on prior guidance still standing from previous administrations, as well as prior court decisions.

One area in which the current administration’s divergence from the Biden Administration in this regard is on display is non-compete agreements.  On September 4th, the FTC announced that it had launched a public inquiry into the scope, prevalence, and effects of employer noncompete agreements, in part “to inform possible future enforcement actions,” without any reference to issuing future guidance.  On the same day, the FTC brought an action against the country’s largest pet cremation company to enjoin its use of restrictive non-competes.  A day later, the FTC announced that it was acceding to the vacatur of the Biden Administration’s FTC rule banning most non-competes.  Chair Ferguson emphasized in his statement that the Biden Administration engaged in significant waste by expending so many resources on crafting and enacting the regulation.

These actions further illustrate the policy shift from Biden’s promulgation of regulations to President Trump’s common-law based approach: the Biden Administration’s FTC used rulemaking to ban most non-compete agreements on a national level, and the Trump Administration abandoned that effort in favor of gathering public reports on non-competes so that it can use enforcement to “uproot the worst offenders and restore fairness to the American labor market,” according to the FTC’s announcement.

Key Takeaways

• The Trump Administration, and therefore the federal competition agencies, are rejecting creating new regulations and guidance in favor of individual targeted executive orders.
• This approach is not entirely inconsistent with the Biden Administration, as it withdrew outdated agency guidance and directed parties to recent case law for guidance going forward, but that administration also engaged in significant rulemaking and creation of new policy statements, some of which appeared intended to discourage large mergers altogether.
• The Trump Administration’s approach reflects an interest in what it perceives to be efficiencies at the agency level, achieved by avoiding using resources to create rules and policy guidance, and thereby enabling more flexibility for the agencies’ review of potential mergers and allegedly anticompetitive conduct.
• However, the two administrations’ combined approaches have left a vacuum when it comes to guidance in the competition space, with market participants left to look to case law that can differ by circuit and court, causing uncertainty that may lead to less efficient market conduct.
• Businesses should continue to expect less formal guidance on industry-specific topics unless in an industry that is of particular interest to the Trump Administration, meaning companies should consult with experienced counsel to assess any competitive risk in their conduct, mergers, and collaborative activities.

This content was originally published on September 5, 2025, via the Lexology newsletter. It can be found here: Falling Into the Void: Trump and Biden’s Incongruous Approaches to Antitrust Create a Guidance Vacuum

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