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U.S. antitrust agencies can be expected to stay on an even keel under President Donald Trump, despite his general promise to shake up Washington, according to competition officials who recently left the government.
Practitioners have been anxiously waiting for Trump’s antitrust nominations for clues to his enforcement philosophy. He has yet to formally name individuals to lead the Justice Department’s Antitrust Division and Federal Trade Commission on a long-term basis while several reviews of mega-deals are still pending.
Antitrust officials who left the government in recent months say the FTC’s Bureau of Competition and the DOJ’s Antitrust Division have a strong tradition of staying focused on the law and avoiding politics. That has helped make past presidential transitions relatively seamless for the agencies.
“Certainly, you read the paper, and some agencies look like they’re about to experience very, very significant changes,” said Deborah Feinstein, who stepped down March 6 as the FTC’s competition director. “The antitrust agencies typically have not,” she said March 17 at a Georgetown University Law conference. She was appointed in the previous administration.
Feinstein, who has been involved in antitrust issues for about 30 years, said that there have been “minor shifts” in philosophy from administration to administration during that time. But the biggest change came between two Republicans, former President Ronald Reagan and former President George H.W. Bush. The agencies went “from a relatively non-enforcement era to a more enforcement era,” she said.
Some people who closely watch antitrust issues are still uncertain. “Until we see his actual appointments, it’s hard to predict what will happen,” John Briggs, an antitrust partner at Axinn, Veltrop & Harkrider LLP, told Bloomberg BNA.
The Trump presidency – much more than others in recent history – has been viewed as a wild card for antitrust enforcement. During his campaign, he signaled that he might be tough on mega-mergers, but his transition team has included conservative antitrust advisers, who tend to be more hands-off.
Presidents typically allow antitrust agencies to operate independently. Some observers have questioned whether this will remain the case under Trump, particularly since he has met with executives from companies involved in some big merger deals. Before he was inaugurated, he had private meetings with AT&T Inc. Chief Executive Officer Randall Stephenson and the CEOs of Monsanto Co. and Bayer AG.
The Antitrust Division is currently reviewing high-profile mergers, including AT&T’s proposed acquisition of Time Warner Inc. and Monsanto’s bid for Bayer.
Trump is poised to nominate Makan Delrahim, a deputy in the Office of White House Counsel, to lead the Antitrust Division, Bloomberg News reported March 17. Delrahim served as a deputy assistant attorney general at the Antitrust Division during the George W. Bush administration.
A bipartisan spirit will likely remain at the Antitrust Division, according to Juan Arteaga, who was a senior official there until January 20, when Trump was inaugurated.
“I fully expect the career staff to continue doing what they’ve always been doing, irrespective of which party is in the White House,” Arteaga said at the conference. That means conducting thorough investigations that are guided by the facts and the law, he said.
Feinstein said there might be “marginal” policy changes in some areas under Trump, but the FTC’s enforcement decisions will likely continue to be bipartisan.
“For the most part, I don’t think that you’re going to see big shifts,” Feinstein said.
But she acknowledged that Acting FTC Chairman Maureen Ohlhausen has talked about moving the agency in the direction of less regulation.
There are rare cases where commissioners disagree, she said, citing the agency’s 2-1 decision in January to bring an anti-monopoly action against Qualcomm Inc. Ohlhausen opposed that action, which was brought during the final days of the Obama administration. That suit continues.
Besides the Qualcomm case, the FTC’s pending workload includes two big merger reviews: Walgreens Boots Alliance Inc.’s deal with Rite Aid Corp. and Sherwin-Williams Co.’s agreement to buy Valspar Corp.
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