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Karen Hoffman Lent and Kenneth Schwartz Karen Hoffman Lent and Kenneth Schwartz

A new presidential administration necessarily ushers in a change in leadership and presents the possibility of a different antitrust regime. Yet these new appointees must still grapple with the vestiges of the old guard. The administration of newly elected President Joe Biden has inherited large, ongoing antitrust investigations along with mounting bi-partisan pressures to consider sweeping changes to antitrust law. Though both President Biden and Vice President Kamala Harris have voiced their support for stricter antitrust measures, they have not concretely defined their antitrust priorities since taking office. They also have not yet nominated individuals to key leadership positions in the Antitrust Division of the Department of Justice (DOJ) or the Federal Trade Commission (FTC). As the Biden administration sets its antitrust policy agenda, will their choices have a transformative effect on antitrust policy—or just continue the status quo?

Historically, one would expect antitrust enforcement to throttle up under a Democratic administration. Progressive antitrust policies are viewed as less accepting of synergies and efficiencies arguments and on more heightened alert for potential losses in consumer welfare versus pure competition concerns. As the past four years under Republican leadership demonstrate, however, antitrust enforcement on the whole is on a new footing. The outgoing administration made antitrust enforcement, particularly on large technology players and transactions involving killer acquisitions, a defining feature. Against the backdrop of high-profile investigations and enforcement actions, there have been seemingly incessant calls to expand antitrust law’s purview. Even outgoing Assistant Attorney General (AAG) Makan Delrahim devoted his final address as AAG to consider specific antitrust policy changes, including establishing a specialized antitrust court and implementing a presumption that, for firms with more than 50 percent market share in a certain market, further acquisitions in that market are anticompetitive. See U.S. Department of Justice, Assistant Attorney General Makan Delrahim Delivers Final Address (Jan. 19, 2021). Recently appointed Acting FTC Chair Rebecca Slaughter noted that she agreed with almost all of the ideas former AAG Delrahim promoted in his final address, further highlighting the overwhelming bi-partisan support for potential sweeping changes to the current antitrust regime. See Curtis Eichelberger, Acting FTC Chair Slaughter Says Agency Should Consider Whether Decisions to Add Structural Inequities, MLex (Jan. 26, 2021).

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