Trump administration’s merger remedies playbook begins to take shape

While the sample size is small, these recent settlement agreements shed some light on whether the agencies' renewed embrace of remedies is a return to more the traditional merger enforcement policies of past administrations, or whether the agencies in Trump's second term are forging a new path without precedent in recent enforcement history. 

In shift from Biden era, merger remedies are back on the table at FTC and DOJ

During the Biden administration, antitrust enforcers were vocal about their preferred merger enforcement policy: suing to block a merger in lieu of accepting “flimsy” and “risky” settlements¹ that former DOJ Assistant Attorney General Jonathan Kanter and FTC Chair Lina Khan deemed “destined to fail.”  As we expected, the FTC and DOJ in the Trump administration have changed course on this tactic.²

FTC embraces structural as well as non-structural behavioral remedies

In May 2025, the FTC announced a proposed divestiture order to resolve anticompetitive concerns about the $35 billion merger of Synopsys, Inc. and Ansys, Inc.  Synopsys is a supplier of software used to design semiconductors, and Ansys provides simulation software tools used for testing semiconductors.  The proposed consent order requires each of the companies to divest certain product lines to resolve the FTC's concerns that the merger would substantially lessen competition in the relevant markets.  In a statement published along with the proposed settlement agreement, Chair Ferguson argued that remedies “must be an option” for the FTC, and expressed support for settlements that balance the prevention of the merger's anticompetitive effects with preserving the procompetitive aspects of the deal.  Chair Ferguson also touted the comparative cost-savings of settlements versus litigation, noting that “[i]f the Commission can successfully settle merger cases that are likely to result in anticompetitive harm, it can block more anticompetitive effects in the aggregate than it would if its only choice were litigating every one of those cases to judgment.”  However, Chair Ferguson stressed that behavioral (or conduct) remedies—as opposed to structural remedies³— should be “treated with substantial caution” since they are “often difficult or impossible for the Commission to enforce effectively and can lock the Commission into the status of a monitor for individual firms rather than a guardian of competition across the entire economy.”

On June 26, 2025 the FTC announced another proposed consent order that also includes a more traditional divestiture remedy to resolve concerns related to the proposed acquisition by Alimentation Couche-Tard Inc., a Canadian company that operates convenience stores, of 370 retail gas stations from U.S.-based grocery store chain Giant Eagle, Inc. In a statement announcing the divestiture package, FTC Commissioner Mark Meador described how he assesses whether a settlement proposal “constitutes an effective divestiture remedy package.”  According to Commissioner Meador, structural remedies should be “self-sustaining”, and outside of “extremely rare cases” the FTC should “insist on clean divestiture of standalone business lines when negotiating merger remedy packages.”⁴  Commissioner Meador advises parties to “approach Commission staff early, candidly, and in good faith” where a transaction involves complex divestiture packages across multiple locations,” and notes that the Commission should be ready to reject a proposed remedy that involves partial asset combinations or “atypical carve-outs.”   

In a departure from the more straightforward structural remedies implemented in these cases—and despite Chair Ferguson's May 28 statement expressing a general aversion to behavioral remedies—on June 23 the FTC announced that it accepted a proposed consent order that includes behavioral remedies to resolve allegations that the proposed merger of the  third- and fourth-largest media buying advertising agencies in the United States would meaningfully increase the risk of coordination among competitor firms in the “media buying services” market. The coordination alleged in the complaint relates to agreements among media buying services providers not to advertise on certain platforms due to the belief that these platforms promote harmful content and  “misinformation.”  The proposed consent order includes an unconventional remedy that will require the merged firm to “refrain from entering into or maintaining any agreement or practice that would steer advertising dollars away from publishers based on their political or ideological viewpoint,” and marks the first time the FTC—under new Republican leadership— has imposed a behavioral remedy to resolve a merger challenge. 

The FTC alleged in its complaint that, given prior attempts at coordination in the media buying services market, a merger that reduces the number of competitors in the relevant market “may tend to make successful anticompetitive coordination more likely.” Citing alleged decisions by major advertisers to decline to advertise on certain websites and applications that publish “supposedly harmful content,” the FTC alleged that with “one fewer major competitor in the Media Buying Services industry as a result of the Acquisition, the remaining competitors have fewer impediments to coordinating the placement of advertisements, monitoring one another, and punishing one another for taking actions that harm them collectively.”  As part of the proposed consent order, both companies are prohibited from entering into an agreement with a third party that “hinders advertising based on political or ideological viewpoints,” and are required to cooperate with any FTC investigation or litigation relating to media buying services.⁵  The parties' compliance with the order will be monitored by the FTC. 

In a June 23 statement published concurrently with the proposed consent order, Chair Andrew  Ferguson cited as evidence of the “history of coordination” alleged in the complaint a recent investigation spearheaded by the U.S. House of Representatives Judiciary Committee that concluded that the World Federation of Advertisers Global Alliance for Responsible Media (GARM) “banded together the most powerful firms in their industry to choke off the vital advertising revenue of those who disagreed with them, disseminated information they believed untrue, or refused to deplatform those who did.” Chair Ferugson contends that, where there is a “troubling history [in the relevant market] of collusion to the detriment of consumers and the free conduct of American political discourse and elections . . . the Commission must be particularly vigilant.”⁶  According to Ferguson, although “GARM has disbanded under a cloud of litigation and congressional investigation⁷ . . . [n]umerous other industry groups and private organizations have publicly sought to use the chokepoint of the advertising industry to effect political or ideological goals.”⁸

Notably, the behavioral remedies in the consent agreement dovetail with the FTC's broader efforts to use the antitrust laws to target alleged censorship of conservative speech by advertising and social media companies.”⁹ Ferguson advocated in his statement for the FTC to “use the full extent of its authority . . . to investigate collusion that may suppress competition and, in doing so, suppress free speech online.”¹⁰  Chair Ferguson has also been vocal about his concerns regarding alleged “pervasive political censorship and election interference carried out by [large social media and video streaming services] under the guise of ‘content moderation.'”¹¹  In February 2025, the FTC launched a public inquiry to understand how technology platforms “allegedly deny or degrade users' access to services based on the content of their speech or affiliations,”¹² and how this conduct may violate the antitrust laws.¹³

Republican FTC re-opening, modifying, and setting aside final consent orders

In addition to these newly-issued consent orders, the Republican FTC has also prioritized the re-review of certain consent agreements that were finalized by the agency during prior administrations.  In response to a series of petitions submitted to the FTC by parties seeking to modify or set aside their final consent agreements, the FTC has agreed to modify two agreements, vacate two others, and, most recently, issued a request for public comment on a petition to modify a 2023 order.  All five of these cases  involve deals in the energy sector.  The two vacated orders provided that the FTC would approve the proposed acquisitions on the condition that the CEOs of the target companies be prohibited from serving on the boards of directors of their respective merged firms.  The FTC voted to set aside both consent agreements on the basis that the complaints failed to plead a violation of either Section 7 of the Clayton Act or Section 5 of the FTC Act.   

Recent DOJ settlement agreements signal agency's potential embrace of both structural and behavioral remedies

The DOJ Antitrust Division has entered into two proposed merger settlement agreements since the start of President Trump's second term.  In one case, DOJ entered into a proposed settlement agreement to address the proposed acquisition by Keysight Technologies, Inc., a U.S. manufacturer of telecommunications software, of British telecommunications testing company Spirent Communications PLC.  The proposed final judgment requires the divestiture of the target's high-speed ethernet testing, network security testing, and RF channel emulation businesses, a “structural solution” that DOJ says will preserve competition “for key testing equipment used to ensure that data moves quickly and securely across the world.”

This more traditional divestiture remedy was followed by an announcement by DOJ that it has reached a proposed settlement agreement in another proposed merger that employs what DOJ characterized as a “novel approach” to resolve concerns that the combination of Hewlett Packard Enterprise Co. (HPE) and Juniper Networks, Inc.— the second- and third-largest providers of enterprise wireless networking solutions, respectively— risks substantially lessening competition in the market for enterprise-grad WLAN solutions.  This settlement involved both structural remedies and behavioral commitments.  In addition to requiring HPE to divest its wireless networking business HPE Instant On, the proposed settlement agreement mandates that the parties hold an auction to license the source code for two of Juniper's software assets that are components in modern WLAN systems.  Notably, the licensing agreement would be non-exclusive, allowing the merged company to retain the copyright ownership and license the same software to other parties.  Another unusual feature of the settlement is that HPE has 180 days to sell the divestiture package to an as-yet undetermined buyer.  DOJ usually prefers to line up and vet the buyer in advance of allowing the transaction to close. 

 Looking ahead

Recent merger settlement activity at the FTC and DOJ makes it clear that the agencies are open to negotiating remedies to resolve the potential anticompetitive effects of a proposed deal.  While straight-forward structural remedies such as divestitures continue to be preferred, both the DOJ and FTC have shown a willingness to employ behavioral remedies in certain cases as well, despite public statements that such remedies are disfavored.   

Parties should monitor for further guidance from the agencies regarding their views on merger remedies.  Chair Ferguson has stated that “[i]n due course, the Commission will publish a policy statement on its understanding of the role of remedies.”  We will have to wait to see whether DOJ joins the FTC's statement or follows with independent guidance.

Authored by Logan Breed, Ashley Howlett, and Jill Ottenberg.