On Wednesday, September 27, exactly six months after President Trump announced his intent to formally nominate Makan Delrahim for the position of Assistant Attorney General (AAG) for the Antitrust Division of the US Department of Justice (DOJ or Division), the United States Senate voted to confirm him. With this confirmation, AAG Delrahim will assume his position at the head of the DOJ’s leadership, where he will oversee the antitrust enforcement policy, agenda, and priorities of one of the two US antitrust agencies.
Delrahim’s expected Antitrust Division leadership role
AAG Delrahim is not new to the DOJ, public office, or prominent antitrust policy-making roles. Therefore, it is reasonable to assume that he will bring his prior experience to bear during his tenure as AAG at the Division, and will be familiar with handling the myriad of considerations that influence the setting of an administration’s antitrust enforcement priorities. Immediately prior to his confirmation as AAG, he served as Deputy Assistant and Deputy Counsel to President Trump, with a portfolio that included overseeing presidential nominations to the federal judiciary, including now-Supreme Court Justice Neil Gorsuch. At the DOJ, AAG Delrahim previously served as Deputy Assistant Attorney General (DAAG) for the Antitrust Division during the George W. Bush Administration and was responsible for international, intellectual property (IP) and appellate matters. He has also served on the US Attorney General’s Task Force on Intellectual Property, and was a Commissioner on the US Antitrust Modernization Commission, Chairman of the Merger Working Group of the International Competition Network, and Staff Director and Chief Counsel to the US Senate Judiciary Committee, where he worked on merger reform legislation. AAG Delrahim has also been a partner in private law practice, as well as a law professor at Pepperdine University.
Because of the duration of his confirmation, AAG Delrahim assumes his role as the leader of a Division that has already been staffed with experienced antitrust practitioners, including Principal Deputy Assistant Attorney General Andrew Finch, who had been filling in as Acting AAG, and DAAGs Luke Froeb (Economic Analysis), Donald Kempf (Litigation), Bryson Bachman (Civil Enforcement) and Roger Alford (International Affairs). Much like AAG Delrahim, the DAAGs have strong backgrounds in leading roles in both private and public antitrust. AAG Delrahim may also gradually put his stamp on the Division through changes to the section chiefs and other staff leadership.
Lag in nominations at Federal Trade Commission
The process at the Federal Trade Commission (FTC) has been lagging behind that of the DOJ. President Trump has yet to announce a single nomination for any of the current Commissioner vacancies. The FTC has been operating with two Commissioners for almost the entire tenure of President Trump’s Administration, and will continue to do so until three current Commissioner vacancies, including Chairman, are filled through the nomination and Senate confirmation process. Although a fourth Commissioner vacancy technically became available in September 2017, Commissioner Terrell McSweeny has announced that she will stay past her official term end, until nominations and confirmations can be made.
In late summer it was reported that President Trump may nominate Joseph Simons (partner at Paul Weiss) as the Chairman nominee of the FTC in early September, although that nomination has not yet come to fruition. Simons was Director of the Bureau of Competition from 2001 to 2003 under President George W. Bush, and served as Associate Director for Mergers and Assistant Director for Evaluation at the FTC in the 1980s. Additionally, in the late 1980s Simons helped create the idea of “critical loss analysis,” which is used as a market definition tool.
Until nominees are named, and ultimately confirmed, the FTC will continue to operate with two Commissioners, one from each party, and both will need to vote in the affirmative for any enforcement action to proceed.