Looking Forward to the Biden Administration
Despite the fanfare surrounding the change in any Presidential administration, DAMITT data show that any differences in enforcement policy between the Obama and Trump administrations were more marginal than major. We expect similar incremental changes under the Biden administration if the new appointees pursue merger enforcement policies consistent with the Obama/Biden administration.
Under the Trump administration, the U.S. agencies conducted 109 significant merger investigations between 2017 and 2020, slightly behind the 120 significant merger investigations in the last four years of the Obama administration. Despite fewer significant investigations overall, 21 of those significant merger investigations ended in complaints under the Trump administration, which is two more than the 19 complaints filed by the Obama administration in its second term.
Moreover, despite public commitments to reduce the duration of significant investigations, the Trump administration saw a 15 percent increase in average duration for its significant investigations between 2016 and 2020. While this was a somewhat lower rate of increase than the agencies saw in the second term of the Obama administration, it continued the trend towards longer durations for significant merger investigations.
The recent resignation of FTC Chairman Joseph Simons and the appointment of FTC Commissioner Chopra to be the Director of the Consumer Financial Protection Board opens the door for the Biden administration to appoint a new Democratic Chairman and at least one other new Democratic commissioner, which would flip control of the Commission to the Democratic side. Until then, however, the FTC will have a 2-2 split of Democratic and Republican commissioners absent any further resignations. This split is likely to result in a short-term continuation of the status quo because a majority is needed to authorize FTC litigations and approve consent orders. But assuming Biden appoints DOJ and FTC leadership similar to the group that served under the Obama/Biden administration’s second term, these policy differences would not be drastic once new leadership is fully installed.
At the same time, Democratic control of Congress raises the possibility of more substantial changes. The Democrat-led Congress may be more likely to pass antitrust merger reforms (e.g., by lowering the burden on the government to prove its case in merger litigation). Congress may also authorize greater agency funding for merger investigations. These changes, if implemented, likely would result in more merger enforcement.