Antitrust enforcement under the second Trump administration has sparked both attention and debate as the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) advance the president’s priorities. Partners Tom Ensign and Steve Albertson and counsel Meredith Mommers hosted a Fenwick CLE session to explore the developments of the past year and discuss how businesses should approach antitrust considerations in 2026 and beyond.
Read on for some key takeaways from their conversation.
Federal antitrust agencies have signaled that they do not intend to impede unproblematic transactions and have returned to merger review practices that were standard prior to the Biden administration. As part of this shift, the Premerger Notification Office has resumed granting early termination requests, and the FTC has revived its practice of phased investigations, rather than launching directly into extended merger review investigations.
The DOJ and FTC also appear to be applying a more conventional and predictable framework when assessing theories of harm during merger review investigations and determining which enforcement actions to pursue. The agencies’ public statements and enforcement actions in 2025 suggest that they are focused on empirical evidence of consumer welfare effects rather than presuming harm based solely on market concentration.
The second Trump administration has embraced negotiated settlements as a practical tool to resolve competitive concerns. Under the Trump administration, the federal antitrust agencies have adopted remedies in more than a dozen transactions, ranging from divestitures to prohibitions on discriminatory business practices. These settlements reflect a pragmatic approach to enforcement, offering merging parties a pathway to address antitrust risks without protracted court battles.
Changes to Hart-Scott-Rodino (HSR) filing requirements implemented in February 2025 imposed substantial additional costs and burdens on all filing parties through new and expanded requirements for disclosures of information and production of documents. Note that a federal court in Texas recently vacated this new pre-merger notification regime, although the order is currently stayed until the U.S. Court of Appeals for the Fifth Circuit issues a decision on the FTC’s motion for stay pending appeal with the appellate court. The Fifth Circuit is expected to provide more clarity on the future of the new HSR rules, but for now, the new HSR rules are still in effect, and parties should continue to prepare filings under those rules until further notice from the courts.
State regulators are also increasingly pursuing their own antitrust enforcement agendas, with states like California, Washington, and Colorado enacting “mini” HSR statutes that require premerger notification at the state level for certain HSR notifiable transactions. Beyond taking legislative action, states are diverging from federal agencies in court proceedings, like when several state attorneys general intervened in the HPE/Juniper Tunney Act approval process, and when state plaintiffs refrained from signing onto a proposed settlement between the DOJ and RealPage, Inc. This growing state involvement adds another layer of complexity for deal planning.
Federal agencies are expected to continue scrutinizing and actively litigating against large technology companies. Acquihires and other high-value tech deals will also likely continue to attract agency attention. Life sciences transactions also remain a priority, as demonstrated by the FTC’s recent enforcement actions targeting medical device makers and an executive order targeting pharmaceutical pricing practices. This is consistent with Trump’s first term, when nearly half of FTC enforcement activity was in healthcare-related industries.
The second Trump administration aims to tackle affordability as part of its antitrust agenda, pursuing executive orders aimed at curbing anticompetitive behavior in industries impacting daily living costs. The antitrust agencies are expected to focus on mergers or other conduct by companies in healthcare and agriculture, and other consumer-facing industries like housing, food, transportation, and entertainment face scrutiny that could result in increased prices.
M&A teams should consider seeking early termination where feasible, engaging antitrust counsel early in the process to assess risks, and for certain transactions, preparing potential remedy packages in advance. Transaction agreements should account for longer HSR preparation timelines if the new HSR rules remain in place and possible remedy negotiations if the transaction poses antitrust issues. As always, parties should also consider adopting careful document creation practices. By proactively integrating these considerations, dealmakers may better navigate the evolving enforcement landscape.
View the full webinar by registering here, and learn more about Fenwick’s antitrust and competition capabilities.