FTC Has Bipartisan Support for Merger Cases, Outgoing Chief Says

The US Federal Trade Commission is likely to have bipartisan support to keep filing cases to block anticompetitive mergers under the Trump administration, said Henry Liu, the outgoing director of the agency’s Bureau of Competition.

Liu, who led the agency’s antitrust unit for the last 18 months under former FTC Chair Lina Khan, stepped down on Jan. 20. During his tenure, the FTC won every merger case it filed, with one still pending in Texas federal court.

All of those suits were brought with bipartisan support from the agency’s five commissioners, he said. Of the seven cases, the FTC won five at trial; the companies in the other two dropped their deals.

“Antitrust enforcement has a lot of unanimous, bipartisan support and that in many respects won’t change,” Liu said in an interview before his departure.

A majority vote of the agency’s commissioners is needed for the FTC to file a lawsuit. Before Liu joined the agency, the FTC lost two major merger challenges involving Meta Platforms Inc. and Microsoft Corp.

Liu said antitrust officials’ view of what constitutes competitive harm from a merger and how to fix that harm has evolved significantly. “The days are gone where the agencies were just narrowly focused on horizontal 3-to-2 or 2-to-1 mergers. We’re taking a hard look at vertical mergers, potential competition theories, and the functional availability of remedies.”

The Biden administration’s stepped-up antitrust enforcement under Khan drew criticism from business groups and some conservatives, who hope the Trump administration will take a softer approach, particularly on dealmaking. They may be disappointed, according to Liu, who highlighted the consistent bipartisan support for the Biden team’s cases.

Republican Commissioners Melissa Holyoak and Andrew Ferguson, who joined the agency last spring, also voted in favor of stricter rules on disclosures for proposed mergers and acquisitions. Those rules are set to go into effect next month, though business groups have now filed a lawsuit seeking to block them.

Ferguson, who is the new FTC chair after he was elevated by President Donald Trump, pledged to keep up the agency’s antitrust and consumer protection mandate. In an email to the FTC staff this week, a copy of which was viewed by Bloomberg, Ferguson pledged “vigorous enforcement of the law” while implementing Trump’s program of government reform, including winding down diversity and inclusion programs. The “agency’s mission of protecting consumers, however, will not change.”

Photo: Photographer: Ting Shen/Bloomberg