Antitrust Under Biden: Taking a Closer Look at the Numbers

By:  John Carroll & Helen Eckert (Sheppard Mullin)

As the U.S. presidential election approaches this November, our Antitrust & Competition team continues to provide insights into what antitrust enforcement may look like under the next administration. While anticipating the future, it’s also important to reflect on the approaches taken by recent administrations. Much attention has been given to the more aggressive and public stance on antitrust enforcement under the Biden administration. The Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division (DOJ) have introduced several major policy changes and proposals, including new merger guidelines and a proposed ban on noncompete clauses. However, some data suggests the shift in antitrust enforcement under Biden may not be as dramatic compared to the Trump administration as commonly perceived.

Merger Enforcement

The Biden administration has been vocal in its skepticism of mergers and acquisitions, especially those involving large companies, specific sectors like healthcare, and private equity firms. Within his first six months, President Biden issued a strong executive order emphasizing his administration’s policy to aggressively address “excessive concentration,” “serial mergers,” and the “acquisitions of nascent competitors.” Similarly, Jonathan Kanter, Assistant Attorney General for the Antitrust Division, has taken a firm stance against mergers that reduce competition and increase market power. FTC Chair Lina Khan has also underscored her focus on blocking harmful mergers rather than allowing them with structural remedies.

That said, the data tells a more nuanced story. From 2017 to 2022 (the most recent year with available data), the number of reported mergers and acquisitions surged by 53%. Yet, the number of Second Requests issued by the Agencies remained relatively flat, with the rate of Second Requests compared to eligible transactions actually decreasing during the Biden administration. This suggests that the narrative around antitrust enforcement may be more complex than it appears…

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