Since the inauguration, the Trump Administration's antitrust enforcers at the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) have not taken any formal actions that reveal how aggressive the new Administration will be in enforcing federal antitrust laws (see Holland & Knight's alert, "Will Trump Relax DOJ's Enforcement of Antitrust Laws?", Jan. 17, 2017). But the Administration has offered some clues, and those clues point to a less-interventionist approach to antitrust enforcement than we saw during the Obama Administration – but by no means an abandonment of antitrust enforcement altogether.
On March 27, 2017, President Donald Trump picked Makan Delrahim to head up antitrust enforcement at the DOJ. Delrahim served at the DOJ during the George W. Bush Administration, and, in that role and in other antitrust-related policy work in which he has been involved in the past, has established a strong reputation for principled, evidence-based enforcement of antitrust laws. He will likely not shy away from challenging mergers or anticompetitive conduct when intervention is warranted, but he is unlikely to support pushing the enforcement envelope by bringing cases based on novel economic theories. For example, Delrahim reportedly stated when AT&T's acquisition of Time Warner was announced in October 2016 that the deal, currently under review at the DOJ, was unlikely to pose antitrust problems because it did not involve the merger of direct competitors. (Trump, then the Republican presidential nominee, stated his disapproval of the deal at the time it was announced.)
At the FTC, President Trump named Commissioner Maureen Ohlhausen to serve as acting chair. She, like Delrahim, has a long track record of supporting antitrust enforcement but urges "regulatory humility" generally, respect for intellectual property rights and cases based on sound economic theory. Ohlhausen, for instance, opposed the FTC's challenge, in the closing days of the Obama Administration, to Qualcomm's patent licensing practices as "based on a flawed legal theory ... that lacks economic and evidentiary support." Ohlhausen also further demonstrated that the FTC will take a more humble enforcement approach than it did in the Obama Administration by touting the FTC's recent efforts to reduce the burden that FTC information requests impose on the businesses that receive them.
