As President-elect Donald Trump prepares to take the helm of the executive branch of the federal government, many are asking how he will approach antitrust regulation. Conventional wisdom holds that Republicans are more amenable to mergers, even large ones, than Democrats. During the George W. Bush administration, competition enforcement was relatively lax, mergers were routinely approved without conditions and litigation was rare and often unsuccessful (the government successfully litigated only one merger case during the Bush years). The Bush administration filed, on average, 16 merger challenges per year—down from an overage of 35 per year under President Bill Clinton.

The Obama administration ramped up enforcement to an average of 21 challenges per year (well above Bush, but significantly below Clinton), and it routinely scrutinized and placed conditions on potential mergers. And in contrast to the Bush administration, Obama’s Antitrust Division of the U.S. Department of Justice has not shied away from litigation. It has racked up a series of wins over the past eight years and has continued to file suits to block certain proposed mergers over the past few months.

For his part, Trump may be the first incoming president with personal experience dealing with antitrust law, both as a plaintiff (unsuccessfully suing a professional sports league for alleged antitrust violations) and as a defendant (successfully defending against charges of monopolizing casino gambling in Atlantic City). In fact, Trump once was fined $750,000 for allegedly violating the Hart-Scott-Rodino Antitrust Improvements Act by improperly acquiring stock in two gaming companies.

Although it is difficult to predict how an incoming administration will approach antitrust policy, President-elect Trump’s recent appointments provide some guidance on how his administration may approach the issue.

Less Litigation, Fewer Challenges to Mergers Likely

Trump’s recent government appointments suggest antitrust policy will follow a traditional Republican playbook: less litigation and fewer challenges to mergers.

Contrary to Trump’s promises to block deals, break up companies or go after certain industries (particularly those in the media or technology), the president does not decide if a merger or an existing company violates antitrust laws—those decisions must be handled by officials at the DOJ and the Federal Trade Commission.

The clearest sign of the Trump administration’s stance on antitrust enforcement will come from his appointees to the DOJ and FTC. And on that score, it appears that Trump’s policies may fall along traditional Republican ideology, i.e., a return to the Bush years of less aggressive enforcement overall. Indeed, most of Trump’s early appointees are political insiders and conventional Republican powerbrokers.

Antitrust-Related Appointees to Date

• U.S. Senator Jeff Sessions (R-AL), Trump’s pick to be the next U.S. Attorney General, has a long track record of supporting mergers, including those in media. Sessions’s appointment suggests that Trump’s administration will be noticeably friendly to M&A activity. Sessions will still need to be confirmed, but given that Republicans have 52 votes in the Senate, his confirmation is a virtual lock.
• Likewise, Jeffrey Eisenach, one of Trump’s advisors on technology policy, has signaled his support for many of the major deals over the past few years, especially in media. In fact, three years ago, Eisenach wrote an op-ed saying it was “about time” media providers start consolidating. In that same article, Eisenach wrote that media consolidations would lead to more efficient “economies of scale and scope (including network effects) throughout the Internet ecosystem,” and he has pointed to Germany as an example of a less-fragmented, more-efficient cable sector.
• Underscoring the likelihood that Trump’s antitrust policy will likely fall along traditional Republican lines is Joshua D. Wright, Trump’s pick to lead the transition on antitrust and the FTC. Wright is a former FTC commissioner who pushed to limit the FTC’s enforcement authority over unfair competition. In a New York Times op-ed published the same day he was named to the Trump transition team, Wright explained that he was skeptical of “more antitrust enforcement” because “a high level of concentration in an industry simply does not mean the industry lacks competition.” In that same article, Wright rejected the idea of basing antitrust policy on “squishy assessments of impossible things to measure, like accumulated political power,” in contrast to Trump’s campaign rhetoric. And Wright has strongly pushed for an evidence-based approach to antitrust policy.
• Most recently, Trump named David Higbee, a partner at Hunton & Williams LLP, to his Justice Department transition team. Higbee spent four years in the George W. Bush administration, from 2001 to 2005, including a year in the Antitrust Division. Analysts predict that Higbee’s appointment signals a return to a traditional Republican approach to antitrust: more confidence in businesses’ decisions and less confidence in government’s ability to identify problems.

Given these appointments, it is no surprise that many analysts are already betting that Trump’s administration will look favorably on mergers. These early appointments, along with Trump’s willingness to reconsider even his most high-profile campaign commitments, certainly suggest that the Trump administration will have a conventionally Republican approach to antitrust enforcement.

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