Neo-Brandeisian Retrospective: Merger Enforcement

White Paper Assessing the Impact of the Neo Brandeisian Movement

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

Published

April 02, 2025

By most measures, the Neo-Brandeisians failed to reshape merger law and policy. Because the agencies misallocated resources to rulemakings and novel theories, overall enforcement fell.  As a percentage of clearances, second requests, merger challenges, and settlements fell to levels well below both the Obama and Trump administrations. The agencies negotiated 27 consents, compared to an average of 76.2 in prior administrations. According to one analysis, “the Biden Administration did not influence half as many deals as the Obama or Trump Administrations and far fewer than the Bush Administration.”

Moreover, the Neo-Brandeisians failed to deter mergers and acquisitions at a higher rate than their predecessors. From 2017-2019, under the first Trump Administration, HSR filings averaged a bit more than 2000 annually; from 2021-2024, during the Biden Administration, HSR filings averaged well over 3000.

The Neo-Brandeisians also failed in court. According to a study, the Biden agencies’ win rate fell well below the historical average.  The agencies lost numerous high-profile cases, while even in their handful of victories, courts declined to adopt the agencies’ more aggressive theories. After DOJ successfully blocked a proposed airline merger, one airline filed for bankruptcy.

Finally, the agencies’ procedural changes likely will have little lasting impact. To date, no court has cited the guidelines for its more aggressive principles. Similarly, though the agencies “temporarily” suspended grants of early termination for mergers that raised no competitive concerns, a policy that forced agency staff to waste time, early terminations have been reinstated.

Fortunately, the Trump Administration appears to be charting a different course, while remaining committed to vigorous enforcement, Chair Ferguson has stated that the FTC will “get the hell out of the way” for mergers that pose no competitive risk.