Antitrust Enforcement, Merger Reviews Seen Not Taking Big Turn Under Biden

Antitrust experts expect somewhat more stringent enforcement and merger and acquisition reviews under a Joe Biden administration than under the Donald Trump presidency, but not significantly more so, several told us. It's also unlikely a Biden DOJ will veer noticeably far from the Facebook and Google antitrust litigation underway, they said.

Experts we canvassed said they don't expect M&A activity to decline materially under the incoming Democratic administration. Former FTC Commissioner Maureen Ohlhausen, now at Baker Botts, said deal activity is affected more by wider economic forces than by which administration is running the agencies.

It would be "too politically awkward" to be seen caving to Silicon Valley on the Facebook and Google suits, said Stanford law professor Alan Sykes. He said Big Tech litigation like U.S. v. Microsoft is likely to last for years, with the issues becoming less significant and technological changes resulting in "modest remedies." The Biden campaign was a big beneficiary of Wall Street and Silicon Valley campaign spending, "and that's got to be a restraining force in some of this," with the White House unlikely to appoint a DOJ antitrust head "who bites the hand who feeds him," Sykes said.

It's "more or less traditional" for big antitrust cases to be filed in the waning days of an outgoing administration, such as occurred in the AT&T breakup, said Tad Lipsky, director of the George Mason University Competition Advocacy Program. He said modifying or dropping the Google and Facebook litigation, while feasible, seems unlikely.

The Facebook and Google suits show a DOJ already being aggressive, though Democratic control of the House Judiciary Committee could mean it pushes for enforcement beyond the bounds of the traditional University of Chicago school of antitrust, Sykes said. A Biden-controlled DOJ might be somewhat more concerned about vertical mergers, he said.

Penn State law professor John Lopatka said a Biden DOJ will likely be only marginally more active in antitrust enforcement due to the high level of activity under the current DOJ. "This hasn't been an administration that sat back and let the market do what it does," he said. He said no big telecom or tech firm would conclude that any merger would be automatically challenged, "but we're not too far away from there," he said.

Cases already brought, such as those involving Google and Facebook, are far enough along that a marked change in attitude or approach is unlikely, Lopatka said. Big Tech also faces the fact that it's unpopular on the left and the right, though for different reasons, he said: "There aren't a lot of people standing up for them."

Lopatka said since antitrust was a big part of Massachusetts Sen. Elizabeth Warren's policy agenda when she was a Democratic presidential candidate, that party's progressive wing might push for a DOJ antitrust chief who's "quite to the left," and Biden may feel political pressure to placate that wing.

Ohlhausen said a Biden DOJ might be more likely to go forward on a borderline case than the current DOJ. But don't expect it to bring a lot more challenges because of the realities of limited resources and a need to focus, and bringing a lot of cases means fewer resources for bread-and-butter enforcement, she said. If FTC Chairman Joseph Simons steps down, as expected, the agency could be deadlocked for months, meaning challenging any deal would need bipartisan support, said Ohlhausen. A Democratic commission also might be more aggressive about borderline deals, but it already has numerous cases teed up, and resources could force it throttle back on pursuing as many as it would like.