Beyond the rhetoric: a practical look at US merger approvals under the new administration

May 2025  |  SPECIAL REPORT: MERGERS & ACQUISITIONS

Financier Worldwide Magazine

May 2025 Issue

Dealmakers, sharpen your pencils, but hold off on popping the champagne just yet. While the new Trump administration has ushered in excitement over a possibly more lenient regulatory climate, it is not open season for M&A quite yet. Despite shifts in rhetoric, the fundamental principles of antitrust remain steadfast. And while some signals are promising, a clear-eyed understanding of the current environment is crucial for ensuring your next transaction crosses the finish line.

This article delves into four key considerations that corporate professionals should keep top of mind when planning their next M&A move. From understanding the shifting attitude toward merger remedies to anticipating potential agency scrutiny, we unpack the realities of dealmaking in the new landscape.

Signalling consistency on enforcement

With the new presidential administration comes a shift in antitrust leadership, but businesses should not expect a dramatic reversal in merger enforcement policy. While some initially saw the pitch of Andrew Ferguson, the new chairman of the Federal Trade Commission (FTC), to end predecessor Lina Khan’s “war on mergers” as a sign of more lenient oversight, Mr Ferguson has made it clear that his approach will remain robust. He has explicitly stated his commitment to “vigorously and aggressively” enforcing the antitrust laws, signalling that while his rhetoric may differ, the core principles of scrutiny and enforcement will persist.

Further underscoring this continuity, Mr Ferguson confirmed in a February 2025 memo that the 2023 Merger Guidelines – widely viewed as enshrining stricter antitrust enforcement under the Biden administration – will remain in effect. In doing so, he emphasised the need for stability in antitrust enforcement, noting that the 2023 Guidelines are “by and large” a “restatement” of prior policies rather than a radical departure. This acknowledgement suggests that while enforcers may take a fresh perspective under new leadership, the fundamental framework guiding merger reviews remains intact. Businesses considering transactions should therefore continue to expect rigorous review, even as the enforcement landscape adapts to the priorities of the new administration.

New procedural rules remain intact too, for better or worse.

Consistent with the prior administration, the new antitrust enforcers allowed more stringent Hart Scott Rodino Act (HSR) filing rules to take effect in mid-February, declining to abandon the rules or even delay implementation. The new filing rules, crafted over several years under the Biden administration, spell out the specific documents and data that companies must submit to government antitrust enforcers before those enforcers will review a transaction. Under the new rules, HSR filings will take weeks longer to prepare, delaying the start of the antitrust review period and, ultimately, the time to deal closing. There was some hope that the new administration, in a pro-business turn, would revisit the new filing rules or drop them entirely. Neither has occurred.

At the same time, the new regime seems intent to keep in place a policy change, from late in the prior administration, that will speed up merger reviews. In October 2024, the FTC announced the reinstatement of the “early termination” programme, which had been suspended since February 2021. Under the programme, parties can elect to seek “early termination” of the 30-day HSR waiting period. When the programme was in place, the transactions that benefitted most were those that presented little to no competitive risk, such as deals with minimal market overlap or small-scale acquisitions with no obvious antitrust concerns. Although the new administration has not announced any early terminations, the fact that the return of the programme has not been further delayed, when a recent surge in HSR filings and staffing shortages would give ample reason for delay, is a positive sign for those hoping the new administration will take a business-friendly turn.

Sector-specific scrutiny will persist

Under the new administration, certain industries will remain under the microscope due to their economic or strategic importance. Energy mergers may find smoother regulatory pathways, driven by industrial logic and the growing demand for AI-powered energy solutions. However, tech deals are likely to remain a sticking point, as concerns about market power and consumer privacy persist. Both Mr Ferguson and Gail Slater, Trump’s nominee to head up the Department of Justice Antitrust Division, have made clear that their agencies will remain focused on Big Tech. Similarly, healthcare mergers will likely remain in the spotlight due to their potential impact on consumer costs and access to care.

One ‘sector’ that may see a bit of relief, however, is private equity (PE). While the prior administration was quick to decry PE “roll-ups” and “serial acquisitions”, the new administration has previewed a more pragmatic view. In 2023, the FTC sued PE firm Welsh Carson and anaesthesia provider US Anesthesia Partners (USAP), alleging the two engaged in “a three-part strategy to consolidate and monopolize the anesthesiology market”, beginning first by engaging in a “‘roll-up’, buying nearly every large anesthesia practice in Texas”. Following dismissal in federal court, the agency pursued an administrative action. In early 2025, the parties reached a settlement with the FTC that included limits on Welsh Carson’s involvement with USAP and requires the firm to obtain prior approval for certain future investments in anaesthesia.

While the Welsh Carson settlement was approved unanimously by the five FTC commissioners, Republicans Mr Ferguson and Melissa Holyoak issued a statement criticising the agency’s “breathless rhetoric” and attempts to paint the case as “hint[ing] at antipathy toward private equity”. Calling it instead “a routine law-enforcement matter embodying a traditional approach to competition law”, the two clarified, “that Welsh Carson is a private equity firm is irrelevant, the antitrust analysis would be the same if Welsh Carson were, for example, an individual or institutional investor” and that “Section 7 [of the Clayton Act] does not prohibit anticompetitive ‘pattern[s]’ or ‘strateg[ies]’ but rather acquisitions” with anticompetitive effects. This statement suggests that while serial acquisitions or PE may not be immune from future FTC enforcement actions, they are unlikely to be singled out for special treatment.

A return to remedies

A marked shift under the new administration is the potential return to merger remedies, a departure from the more aggressive stance of recent years. In 2022 remarks, Jonathan Kanter, former assistant attorney general, expressed concern that merger remedies “too often miss the mark”, and that in most situations, “a simple injunction to block the transaction” was the “surest” way to preserve competition. By contrast, Gail Slater, Trump’s replacement for Mr Kanter, wrote ahead of her Senate confirmation hearing that she expects that under her leadership the agency “may take a different approach than the prior Antitrust Division on settlements in merger cases where effective and robust structural remedies can be implemented without excessively burdening the Antitrust Division’s resources”.

For dealmakers, this means proactively identifying – and developing ways to address – potential regulatory concerns may have significant payoffs. Understanding possible concessions that can be offered, such as divestiture of overlapping assets, can help sidestep lengthy investigations or litigation and smooth the path to approval. Companies should also build in time to negotiate and finalise remedy proposals, which require negotiation and approval with the agencies. While scrutiny will persist in key industries, a strategic, solutions-oriented approach to merger planning can provide businesses with more predictable and efficient pathways through the antitrust process.

While the prevailing rhetoric on merger enforcement may fluctuate with each administration, the bedrock principles of antitrust law remain the same. The new current administration has clearly signalled its approach to merger review will look a lot like the prior administration’s approach. Dealmakers should expect robust scrutiny to persist, particularly in high-profile sectors like healthcare and technology.

However, there are encouraging signs for dealmakers. The new administration’s expressed openness to practical remedies, coupled with moves like the return of early termination and support for stability and predictability in enforcement, indicates a more navigable landscape for strategic transactions. This shift suggests a more pragmatic approach to merger approvals and a smoother path forward for many future deals.

 

Matthew Adler is a partner and Christine Ryu-Naya is special counsel at Baker Botts LLP. Mr Adler can be contacted on +1 (202) 639 1315 or by email: matthew.adler@bakerbotts.com. Ms Ryu-Naya can be contacted on +1 (202) 639 7763 or by email: christine.ryu-naya@bakerbotts.com.

© Financier Worldwide

BY

Matthew Adler and Christine Ryu-Naya

Baker Botts LLP

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