Final Act: Biden’s FTC & DOJ Brazenly Break Transition Norms

Sean Heather
Senior Vice President, International Regulatory Affairs & Antitrust, U.S. Chamber of Commerce

Published

January 31, 2025

In the Biden administration’s waning days, the FTC and the DOJ displayed contempt for the norms and traditions that, for forty years, made antitrust enforcement a bipartisan success story. Instead of working towards an orderly transition, the agencies aggressively filed controversial lawsuits, issued partisan policy statements, and sought to tie their successors’ hands. The FTC’s new chairman deemed these “frantic efforts to beat the clock are a direct affront to democracy.”

Between election and inauguration day, the agencies moved at a staggering pace. In the first few weeks of January, the FTC “voted on more than thirty matters” while DOJ filed multiple lawsuits and issued separate guidance. Some of the most troubling moves include:

Incomplete Lawsuits

A Robinson-Patman Act suit full of “gaping holes” that represents a “brazen assertion of raw political power.”

A Hart-Scott-Rodino suit that quickly engendered a countersuit alleging “hostility towards mergers and acquisitions involving the private equity industry";

A suit against agricultural equipment manufacturer for steering repairs to authorized dealers, one that carried the “stench of partisan motivation” due to an insufficient factual record and ongoing settlement discussions; and

An amicus brief arguing that courts have authority to craft broad remedial orders.

Partisan Guidance

A political policy statement asserting that the organizing activities of independent contractors and gig workers are shielded from antitrust immunity;

Another interim staff report on pharmacy benefit managers, issued in part because the FTC’s resource-allocation decisions prevented agency staff from completing their analysis; and

Joint guidance with DOJ about noncompetes and other employment agreements, another guidance document that cannot bind the Trump administration.

Hurried Studies

A rushed “pricing surveillance study” that “may undermine the trust placed in the Commission’s Section 6(b) work … [and] order recipients’ willingness to cooperate.”

An AI study whose truncated nature “should foreclose the drawing of broad conclusions about the AI industry and its future.”

To address these and other partisan acts, Congress should swiftly confirm new leadership, working majorities, and where feasible exercise its authority under the Congressional Review Act. Likewise, the Trump administration should closely examine its predecessor’s moves, particularly those issued in its waning days. These moves would help to restore the credibility of both the enforcement agencies and the norms and traditions of antitrust law writ large.