Key takeaways
- DOJ and FTC leadership articulated a favorable view of merger remedies, diverging from the Biden Administration enforcers' reluctance toward settlements in merger cases.
- The FTC and DOJ will accept merger remedies that are sufficient to resolve the alleged anticompetitive harm, maintaining a strong preference for a structural divestiture of a standalone business. Likewise, both will consider alternatives (e.g., behavioral remedies; divestitures of something other than a standalone business) in appropriate circumstances.
- Agency leadership criticized the prior administration's hostility to merger remedies, and emphasized the importance of settlements as a means of encouraging transparency and governmental efficiency.
- Openness to settlement does not signal a more permissive approach to merger enforcement. Indeed, the leadership of the agencies have publicly committed to robust merger enforcement under the current administration.
In more detail
DOJ DAAG Bill Rinner's Statements on Merger Remedies
At his speech at the George Washington University Competition and Innovation Lab Conference, DAAG Rinner described how Assistant Attorney General ("AAG") Gail Slater's principles of conservative antitrust enforcement have taken shape within the DOJ's civil merger enforcement program. DAAG Rinner emphasized that the DOJ's primary mission is "civil enforcement against the handful of mergers that are problematic" and DOJ would "surgically remove unlawful transactions (or their unlawful aspects) without nicking neutral deals or wounding procompetitive ones."1
As part of the DOJ's efforts to implement this vision, DAAG Rinner stressed that "settlement must be recognized as an efficient and legitimate resolution of claims." In particular, he stated the DOJ would resurrect the Antitrust Division's strong institutional preference for structural remedies, calling it an "efficient default principle, informed by decades of experience and economic analysis."2
Notably, DAAG Rinner did not dismiss the possibility of accepting behavioral remedies. He stated that "behavioral remedies can provide necessary and adequate support" and that "the Division will engage with parties to understand how proposed relief adequately addresses the risk of competitive harm." Additionally, DAAG Rinner indicated that structural remedies with ongoing entanglements would not be rejected outright, but examined in light of the inherent characteristics of the products and market dynamics of that industry.3
DAAG Rinner also stated that bringing settlements back into practice improved transparency with the public, in part because consent decrees provide the public with fair notice and an opportunity for comment. He accused the Biden administration of using informal channels to encourage divestitures through a practice AAG Slater referred to as "the shadow decree docket." DAAG Rinner stated that returning to formalized settlement structures and the publication of consent decrees ensured the public will remain engaged and aware of the benefits of settlement in protecting competition.4
FTC Commissioner Holyoak's Statements on Merger Remedies
Commissioner Holyoak assumed a similar posture in articulating her view of the FTC's stance towards merger remedies in her keynote address before the USC Gould / Analysis Group Global Competition Leadership Conference in Los Angeles.5 She began her speech by emphasizing the important role that mergers and acquisitions have in promoting economic growth and innovation, and criticized the Biden-era enforcers' preference for organic growth over mergers and acquisitions, which chilled innovation in Commissioner Holyoak's view.
Commissioner Holyoak articulated three reasons the FTC needed to remain open to accepting merger remedies to resolve potential competitive concerns identified in their merger investigations. These were 1) safeguarding the public from the over-inclusive effects of an injunction to block an entire merger 2) maximizing the efficient use of the FTC's finite resources, and 3) reducing the uncertainty created by parties bringing settlement proposals straight to the court rather than through settlement procedures with the FTC.6 She explained that for these reasons, the "Trump FTC is reversing course and will engage with merging parties when they present serious divestitures that will preserve competition."7 She related that for any inadequate divestitures, the FTC "would not hesitate to litigate against the fix" in court."8
Commissioner Holyoak also provided guidance on how the FTC would analyze remedy proposals under the current administration. She emphasized that divestitures of standalone businesses (i.e., a preexisting business unit capable of functioning fully on its own) remained the preferred option. However, like DAAG Rinner, Commissioner Holyoak also acknowledged that in limited circumstances a divestiture of less than a full business may be deemed acceptable, subject to additional scrutiny.
Commissioner Holyoak also emphasized that parties should be prepared to identify and put forward an upfront buyer for any divestiture proposals. Absent extraordinary circumstances, remedy proposals without an upfront buyer would be rejected as the FTC would be unable to vet the proposal thoroughly.
Significance
The speeches by DOJ and FTC leadership represent a significant departure from the Biden administration's approach to merger reviews. Under Chair Khan, the FTC had previously stated it would "be focusing [its] resources on litigating, rather than on settling."9 The former AAG for the DOJ mirrored this sentiment relating that "[DOJ's] duty is to litigate, not settle."10 The speeches by DAAG Rinner and Commissioner Holyoak express a contrasting stance, and clearly indicate that the FTC and DOJ will be amenable to resolving merger investigations with settlements.
However, these statements do not translate to an intention to relax merger enforcement. Rather, DAAG Rinner highlighted that DOJ's "dual goals of procedural and fairness and vigorous enforcement…animate the approach to merger settlements." For the FTC, Commissioner Holyoak also referenced recent remarks by Chair Andrew N. Ferguson where he noted that by engaging in more settlement discussions, the FTC "can block more anticompetitive effects in the aggregate than it would if its only choice were litigating every []case to judgment."11 Indeed, by reducing the time and expenses of litigation, each agency can redeploy staff and resources to more matters than by pursuing litigation alone.
For clients, the directional shift towards merger remedies reopens paths to clearance that were mostly unavailable during the prior administration. Clients should be aware that behavioral remedies or structural remedies that require prolonged entanglements will continue to be disfavored by the agencies. Parties that are able to offer a robust remedy to resolve the identified competitive concern with an upfront buyer can expect the reviewing agency (either the FTC or DOJ) to be receptive to such proposals as a path to resolution.
1 Deputy Assistant Attorney General Bill Rinner Delivers Remarks to the George Washington University Competition and Innovation Lab Conference Regarding Merger Review and Enforcement, (June 4, 2025), available at https://www.justice.gov/opa/speech/daag-bill-rinner-delivers-remarks-george-washington-university-competition-and.
2 Id.
3 Id.
4 Id.
5 Commissioner Holyoak's Keynote Address at the USC Gould/Analysis Group Global Competition Law Thought Leadership Conference, (June 5, 2025), available at https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-keynote-usc-gould-leadership-conference.pdf.
6 Id. at 2.
7 Id.
8 Id.
9 FTC's new stance: Litigate, don't negotiate, Axios (June 8, 2022), https://www.axios.com/2022/06/09/ftcs-newstance-litigate-dont-negotiate-lina-khan.
10 Kantar, Jonathan, Attorney General Jonathan Kantar Delivers Keynote at the University of Chicago Stigler Center, U.S. Department of Justice (April 11, 2022), https://www.justice.gov/archives/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-keynote-university-chicago-stigler.
11 Statement of Chairman Andrew N. Ferguson Joined by Commissioner Melissa Holyoak and Commissioner Mark R. Meador, (May 28, 2025) available at https://www.ftc.gov/system/files/ftc_gov/pdf/synopsys-ansys-ferguson-statement-joined-by-holyoak-meador.pdf.
