This new stance, however, does not signal unchecked dealmaking for transacting parties. The Federal Trade Commission (FTC) and Department of Justice (DOJ) are simultaneously emphasizing that robust, evidence-based enforcement is necessary to protect against potentially anticompetitive deals. Remedy flexibility is described as a key tool for the new Trump Administration’s more targeted enforcement approach.
The end of an era: a sharp move away from the Biden Administration remedy policy
Under the Biden Administration, both the FTC and DOJ were deeply skeptical of merger remedies. Former FTC Chair Lina Khan and former DOJ Antitrust Division head Jonathan Kanter repeatedly signaled that the agencies would focus on litigating to block problematic mergers outright, rather than negotiating settlements. Former Assistant Attorney General Kanter explained that divestitures should be “the exception, not the rule” and indeed, the Biden DOJ only formally accepted remedies in one transaction.1
Under the new DOJ and FTC leadership, there is no presumption that mergers are problematic, nor a categorical opposition to remedies. Instead, there is a recognition that “[m]ergers and acquisitions are a critical way in which capital fuels innovation.”2 In the less than six months of the current Trump administration, the FTC and DOJ have accepted remedies to resolve competitive concerns in four different merger investigations.
FTC Chair Andrew Ferguson and FTC Commissioner Melissa Holyoak, and Deputy Assistant Attorney General (DAAG) Bill Rinner of the DOJ have also each articulated this “pro-remedy” view in recent statements. Deterrence, DAAG Rinner noted, is a “second-order impact” of enforcement, not its primary goal.3 This stands in stark contrast to the Biden Administration’s view; for example, with former FTC Chair Khan maintaining that heightened M&A scrutiny could discourage M&A activity and considering it a success when companies walked away from transactions prior to agency review.
According to FTC Chair Ferguson, categorically refusing to settle merger investigations strains the FTC’s finite resources and may encourage parties to address potential competitive concerns without sufficient agency oversight. The latter can force the agencies to preemptively “litigate the fix,” in which the agencies litigate the sufficiency of a merger remedy in court. From an enforcement perspective, this approach can risk implementation of inadequate remedies, while also making it more difficult for the antitrust agencies to block the “fixed” transaction in court.
In their recent statements, FTC and DOJ leadership have recognized that blocking entire transactions can sometimes be unnecessarily broad, preventing not only the anticompetitive aspects of the transaction, but also the potential procompetitive benefits. Instead, the antitrust agencies under the Trump Administration have committed themselves to using targeted, evidence-based remedies to identify harm and precisely address the anticompetitive aspects of mergers. The DOJ has also explicitly committed to not leverage enforcement actions to achieve policy objectives beyond the scope of the antitrust laws.4
Choosing the right remedy: structural vs. behavioral
Structural remedies (divestitures of business units or assets) are the U.S. antitrust agencies’ preferred approach. The U.S. antitrust agencies are clear that they will not accept remedies without rigorous assessment. For example, the buyer must be financially stable, experienced, and capable of replacing the lost competitive intensity resulting from the merger. In discussing the preference for structural remedies, Commissioner Holyoak stressed the importance of divesting complete business units, but acknowledged that in some cases, a less complete divestiture may be acceptable if it still restores competition.5
Both the DOJ and FTC have said that behavioral remedies (commitments to act or refrain from acting in certain ways) are generally disfavored and will be accepted only in limited circumstances. FTC Chair Ferguson, for example, recently stated: “[E]xperience teaches that behavioral remedies should be treated with substantial caution. They are often difficult or impossible for the Commission to enforce effectively … They are therefore disfavored.”6
That said, the FTC just recently announced a purely behavioral remedy to address alleged coordinated effects concerns in an advertising agency transaction. That may indicate that U.S. antitrust agencies will be more open to behavioral remedies (in the right case) than they have publicly conveyed.7
Transparency and procedural fairness
The FTC and DOJ have committed to clearly identifying their concerns to merging parties, allowing for focused advocacy and negotiation. In turn, parties will be expected to reciprocate the effort by being forthcoming and not abusing legal privilege claims or withholding relevant information.
The agencies are also emphasizing the importance of public process. Settlements will be subject to notice and comment under the Tunney Act (for the DOJ) and the FTC Act (for the FTC), in contrast to the so-called Biden DOJ “shadow decree” practice, that resolved problematic mergers through unofficial remedies outside the public view.
Takeaways for transacting parties
The FTC’s and DOJ’s openness to remedies is positive for transacting parties, but robust, case-specific merger enforcement will continue, requiring early and constructive engagement with the agencies.
- Litigation risk remains, most notably for strategic deals in concentrated areas lacking adequate remedies, as the U.S. antitrust agencies are still likely to favor litigation over uncertain settlements.
- Parties should feel more comfortable proposing remedies, but should expect the remedy proposals to be robust and for there to be a thorough vetting of remedy packages.
- It is important for parties to account for remedy process timing when negotiating transaction timelines and longstop dates.
If you have questions about what the DOJ’s and FTC’s remedy approaches may mean for your business or transaction, reach out to your regular A&O Shearman lawyer or anyone on the A&O Shearman antitrust team.
Footnotes
1. Jonathan Kanter, Assistant Att’y Gen., Antitrust Div., U.S. Dep’t of Just., Remarks to the New York State Bar Association Antitrust Section (Jan. 24, 2022), https://www.justice.gov/archives/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york; Final Judgement, U.S. v. Assa Abloy, No. 1:22-cv-02791-ACR (D.D.C. Sept. 13, 2023), ECF No. 143.
2. Andrew Ferguson, Chairman, Fed. Trade Comm’n, Statement Joined by Commissioner Melissa Holyoak and Commissioner Mark Meador In the Matter of Synopsys, Inc./Ansys, Inc. Commission File No. 2410059, at 7 (May 29, 2025),
3. Bill Rinner, Deputy Assistant Att’y Gen., Antitrust Div., U.S. Dep’t of Just., Remarks to the George Washington University Competition and Innovation Lab Conference Regarding Merger Review and Enforcement (June 4, 2025)
4. Id.
5. Melissa Holyoak, Comm’r, Fed. Trade Comm’n, Keynote Address at the USC Gould/Analysis Group Global Competition Law Thought Leadership Conference, at 5 (June 5, 2025).
6. Andrew Ferguson, Chairman, Fed. Trade Comm’n, Statement Joined by Commissioner Melissa Holyoak and Commissioner Mark Meador In the Matter of Synopsys, Inc./Ansys, Inc. Commission File No. 2410059, at 7 (May 29, 2025).
7. Andrew Ferguson, Chairman, Fed. Trade Comm’n, Statement In the Matter of Omnicom Group/The Interpublic Group of Cos. Commission File No. 2510049 (June 23, 2023).