Recent Trends in US Antitrust Enforcement

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The Biden administration appointed people to key antitrust positions in the Federal Trade Commission and the Antitrust Division at the US Department of Justice who, in general, promised to make antitrust regulation tougher. I’ve written here before about questions of doctrine: that is, how should antitrust cases be evaluated? But there’s also a more basic question: what changes in mergers and enforcement have actually happened?

Under the Hart-Scott-Rodino Act of 1976, all proposed mergers and acquisitions above a minimum threshold size must be reported to the US government, which gives the antitrust authorities a chance to look them over in advance. In 2024, the minimum threshold size over which a transaction needed to be reported in advance was $119.5 million. Each year, the Federal Trade Commission and the Antitrust Division of the US Department of Justice report on the transactions from the previous year, as well as what enforcement actions were taken. The most recent is the 47th Hart-Scott-Rodino Annual Report (FY 2024). Thus, the report is a chance to see what the newly aggressive antitrust administrators of the Biden administration did through 2024.

As a starting point, here are the number of proposed merger reported under the Hart-Scott-Rodino rules. Obviously, there’s a fair amount of year-to-year variation: for example, the low level in 2020 is probably attributable in part to the disruptions of the pandemic. The higher levels in 2021 and 2022 were partly a bounceback from the pandemic year, but also there was some talk in the financial press that firms were trying to complete transactions before the new Biden antitrust warriors wrote a new set of new merger guidelines. The drop in the last two years is essentially back to pre-pandemic levels. Part of the issue here is that at least some merger transactions are financed by debt, which is less enticing when interest rates go up. Overall, it seems fair to say that the number of proposed mergers in 2024 was near-average for the the previous decade.

Was there an effect on the average size of mergers? Here, the pattern is more clear: The share of proposed mergers with value of more than $1 billion has risen substantially in the lat few years.

When the FTC and the DoJ are notified of a potential merger, they can either allow it to proceed without challenge or they can put in a “second request” that expresses concern and asks for more information. This “second request” percentage is always pretty low. After all, the presumption of antitrust authorities is that they are not second-guessing whether a proposed deal will be a money-maker, but only whether it poses a risk of reduced competition. Also, the antitrust authorities have limited budgetary resources and need to pick and choose. That said, the share of transactions getting “second request” had been relatively low under the Biden antitrust team, although in 2024 it rose back to a level that had been common during the first Trump administration.

Ultimately, after these second requests, “The [Federal Trade] Commission took enforcement action against 18 transactions: 12 that the parties abandoned or restructured as a result of antitrust concerns raised during the investigation; and six that resulted in the Commission initiating administrative or federal court litigation. The [Antitrust] Division took enforcement action against 14 transactions: 12 that the parties abandoned in the face of questions from the Division; and two that were restructured after the Division raised concerns about the threat they posed to competition.”

Of course, it’s always hard to draw linkages from enforcement efforts to outcomes, in antitrust as in other areas. The tough talk from the Biden antitrust enforcers, their doctrinal arguments over what antitrust enforcement should be, and the specific cases where they brought enforcement actions surely shaped the types of mergers that firms were willing to propose. But with such effects duly noted, it’s hard to look at the raw number of proposed mergers, proposed large mergers, and enforcement efforts and interpret it as a sharp break from past antitrust practice.

For those who want more on antitrust doctrine, I’ve commented on this blog from time to time about the Biden antitrust team, the new merger guidelines, some current antitrust cases, and the historical changes in merger law over time. Some of these posts include:

“Structure-Conduct-Performance: An Earlier Generation of Antitrust” (February 11, 2025)
“The Generic Drugs Antitrust Case” (March 15, 2024)
“Initial Reactions to the Amazon Antitrust Case” (September 27, 2023).
“Antitrust and the Consumer Welfare Goal” (July 31, 2023)
“Complexifying Antitrust” (January 3, 2023)
“Antitrust: Dilatancy Before the Earthquake?” (June 8, 2023)
“Initial Reactions to the Amazon Antitrust Case” (September 27, 2023)
“Did Antitrust Really Used to Be So Tough?” (February 19, 2022)
“The AT&T Merger with Time Warner: Another Follow-up” (May 3, 2023)
“After that Big Merger, What Happened?” (April 12, 2023)
“Antitrust in the Digital Economy” (July 19, 2019)

Also, the Winter 2025 issue of the Journal of Economic Perspectives (where I work as Managing Editor) has a three-paper symposium on “The 2023 Merger Guidelines and Beyond.”