During the first week of April, the Annual ABA Spring Meeting wrapped up, and there was much conversation about the future of antitrust enforcement. The Spring Meeting panel discussions and an analysis of recent FTC statements and enforcement actions shed light on where antitrust enforcement may be headed over the next four years.

As of this posting, the Federal Trade Commission (“FTC”) how three Republican commissioners. President Trump fired the two Democratic commissioners, Rebecca Slaughter and Alvaro Bedoya, on March 18, and Mark Meador was sworn in as the third Republican Commissioner on April 16, 2025. Removal of an FTC commissioner by a President has happened only once before. In 1933, President Franklin D. Roosevelt wrote Republican FTC Commissioner William E. Humphrey a letter removing him from his position. See Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (holding the President’s removal unlawful because it was not for a cause under the FTC Act).

Commissioners Slaughter and Bedoya swiftly filed a lawsuit seeking declaratory and injunctive relief to serve out the remainder of their terms. Slaughter et al. v. Trump, No. 1:25-cv-00909 (D.D.C. Mar. 27, 2025). This case is likely headed to the Supreme Court to revisit the Court’s view of the scope of Humphry’s Executor. Now, with only three FTC Commissioners, some question whether the agency is operating lawfully pursuant to the text of the FTC Act, which states the Commission there in “shall be composed of five Commissioners” with no more than three from the same political party. 15 U.S.C. § 41. Yet, according to Rule 4.14, a quorum is a ​“majority of members” who are ​“not recused from participating in a matter.” 16 CFR § 4.14. Further, there is precedent the FTC voting to authorize a complaint with only two commissioners voting. During part of the first Trump Administration in 2017 to 2018, the FTC was comprised of two commissioners (Maureen Ohlhausen (R) and Terrell McSweeney (D)), and the FTC voted to challenge five mergers.  

Commissioners Slaughter and Bedoya’s firings have resulted in uncertainty for pending FTC enforcement actions. Most recently, the removal of Slaughter and Bedoya caused the FTC to put an administrative complaint filed in September 2024 against pharmacy benefit managers (“PBMs”) on hold for 105 days because there were no sitting commissioners available to participate. Commissioners Ferguson and Holyoak were recused from the case, and former Chair Lina Khan resigned at the transition of Administrations. On April 3, 2025, Chair Ferguson issued a statement that after consultation with the FTC’s Designated Agency Ethics Official, he will no longer recuse himself from the matter “to ensure that the case can continue.”[1] Commissioner Holyoak issued a statement on April 4, 2025 stating that she would remain recused.[2]

Despite the FTC’s makeup being in flux, continuity in enforcement of certain topics from the Biden Administration to the Trump Administration likely exist, particularly in merger enforcement and in the healthcare and labor markets. However, the FTC’s approach to the Robinson-Patman Act (“RPA”) and the agency’s attitude toward private equity in merger challenges are likely to change under Chair Ferguson.

Merger Enforcement

Merger enforcement will likely see continuity going forward. Chair Ferguson has publicly supported the 2023 versions of the Merger Guidelines[3] (along with DOJ Assistant Attorney General for the Antitrust Division, Gail Slater[4]) and the revised HSR Rules.[5] Further, Chair Ferguson and Commissioner Holyoak voted with the Democratic commissioners to bring merger challenges in the past, including:

• Tapestry, Inc.’s Acquisition of Capri Holdings Limited: In April 2024, the FTC brought an enforcement action seeking to block Tapestry’s acquisition of Capri alleging the acquisition may substantially lessen competition or tend to create a monopoly in the market for “accessible luxury” handbags in the US. The acquisition would have combined Tapestry’s Coach and Kate Spade brands with Capri’s Michael Kors brand. The district court granted the FTC’s motion for preliminary injunction, and the parties subsequently abandoned the transaction.
• Tempur Sealy’s Acquisition of Mattress Firm: In July 2024, the FTC brought an enforcement action seeking to block the vertical merger alleging the consummation may substantially lessen competition or tend to create a monopoly in the market for premium mattresses in the US. Commissioner Holyoak issued a statement saying that many vertical mergers are procompetitive or benign but in this case, the facts warranted enforcement action.[6] The FTC sought a preliminary injunction in the District Court for the Southern District of Texas to halt the closing of the acquisition, which was denied mainly as a result of the court rejecting the FTC’s relevant market definition of the “premium” mattress market priced over $2,000.
• GTCR BC Holdings, LLC’s Acquisition of Surmodics, Inc.: In March 2025, the FTC brought an enforcement action seeking to block private equity firm GTCR’s acquisition of Surmodics alleging the consummation may substantially lessen competition in outsourced hydrophilic coatings marketed in the US.

There may also be some shifts in the FTC’s enforcement approach, such as the FTC’s attitude and views towards private equity (“PE”). Former Chair Khan and former DOJ Assistant Attorney General for the Antitrust Division Jonathan Kanter publicly voiced hostility towards PE firms.[7] And, recently in a concurring statement[8] on the FTC’s enforcement action against GTCR’s acquisition of Surmodics, Commissioners Slaughter and Bedoya issued a statement highlighting the fact that the acquirer, GTCR, is a PE firm. By contrast, Chair Ferguson and Commissioner Holyoak stated in a concurring statement regarding a settlement with PE firm Welsh Carson that it was irrelevant that Welsh Carson was a PE firm, and “the antitrust analysis would be the same if Welsh Carson were, for an example, an individual or institutional investor.”[9] It is therefore unlikely going forward that PE firms will be under the same microscope in merger enforcement matters as they were under the Biden Administration.

As for the merger review process, Chair Ferguson has stated publicly that if the FTC does not see competitive issues with mergers during the initial review, the FTC will “get out of the way” to allow the majority of M&A activity to proceed. The FTC has also reinstated issuing early terminations (“ETs”) which had been put on hold during the Biden Administration. The FTC has granted nine ETs in March of 2025.[10]

Additionally, the FTC and DOJ will likely be more open to entering into merger remedies rather than challenging mergers outright, even if the merging companies have offered a settlement. Commissioner Holyoak has stated that the FTC should be “pragmatic” with remedies, contrasting Chair Khan’s dogmatic “approach” that favored litigation instead of remedies.[11] Recently, Chair Ferguson stated he would take a less aggressive approach to merger enforcement than his predecessor by being more willing to entertain remedies.[12] DOJ antitrust chief Gail Slater echoed the Republican FTC member’s sentiment towards remedies.[13]

Robinson-Patman Act (“RPA”) & Price Discrimination

The Robinson-Patman Act saw new life when the FTC brought enforcement actions against Southern Glazer and Pepsi in December 2024 and January 2025, respectively. The last RPA enforcement action brought by the FTC was in 2000 and resulted in settlement.[14] The RPA prohibits sellers from (1) charging different prices to competing buyers for the same or similar products (“price discrimination”) or (2) favoring customers in the provision of advertising, promotional, or merchandising allowances to assist in the resale of products.

Chair Ferguson and Commissioners Holyoak and Meador have all stated that the RPA should be enforced in the proper situation.[15] Particularly, Meador is a proponent of bringing “RPA cases where it has evidence that consumers are harmed by price discrimination.”[16] Yet, the cases against Southern Glazer and Pepsi were not proper, according to Commissioners Ferguson and Holyoak, who dissented in both actions. Thus, it would not be surprising if the FTC dismissed the RPA enforcement actions against Southern Glazer and Pepsi. Commissioner Ferguson’s dissent in Southern Glazer’s action stated that the Commission is “unlikely to prevail even on its own theory of the [RPA], and it would be an imprudent use of the Commission’s enforcement resources even if it were likely to prevail.”[17]

Antitrust Enforcement in Healthcare and Labor Markets

Enforcement in the healthcare and labor markets over the last four years, will likely see continuity from the previous Administration’s enforcement focuses. In February, Chair Ferguson appointed Daniel Guarnera as the Director of Bureau of Competition. In highlighting Guarnera’s experience with antitrust enforcement to promote competition in the healthcare and labor market, Chair Ferguson stated those were two of his top priorities.[18]

The FTC is likely to continue focusing on noncompete agreements, but the FTC’s rule prohibiting all noncompetes on a nationwide basis is likely dead. Commissioner Ferguson and Commissioner Holyoak dissented in the FTC’s vote to issue the final rule on noncompetes in June 2024.[19] The dissent authored by Commissioner Ferguson and joined by Commissioner Holyoak, stated that such sweeping lawmaking by an administrative agency offends Article I’s constitutional designation of legislative power to Congress.[20] The Commissioners noted that in banning all employee noncompete agreements, the Non-Compete Clause Rule invalidated 30 million existing contracts, preempted the law of 46 states, and categorically prohibited a business practice that had been lawful for centuries.[21] Two federal courts—one in Texas and one in Florida—enjoined the Final Rule in August 2024. The FTC appealed that to the Fifth Circuit and Eleventh Circuit, respectively, but the FTC recently requested a 120-day stay of both appeals[22] (prior to the firings of Commissioners Slaughter and Bedoya).

Chair Ferguson and Commissioner Holyoak are not categorically against addressing noncompete agreements. Both have stated that certain noncompetes should be prosecuted on a case-by-case basis, and noncompete agreements were highlighted by Chair Ferguson in his February 2025 memo announcing the Directive to stand up a Labor Markets Task Force.[23] This follows the FTC’s 5-0 vote to bring an enforcement action against certain “no-hire” agreements for building services contractors that operate in New York City and Northern New Jersey.[24] Further, Commissioner Meador testified during his confirmation hearing in front of the Senate Commerce Committee that noncompetes “have been overused and abused,” and that the FTC could use “traditional enforcement powers to address those harms.”[25] 

The Hunton team will continue to monitor the antitrust enforcement actions taken by the FTC as well as updates on the composition of the FTC commissioners, including whether other individuals are nominated to fill the two vacant seats and the status of the litigation over the removal of Commissioners Slaughter and Bedoya.

[1] @AFergusonFTC, X (Apr. 3, 2025, 4:38 PM).

[2] Statement on the Recusal of Comm’n Melissa Holyoak, In the Matter of Caremark, Rx, LLC, FTC Dkt. No. 9437 (Apr. 4, 2025).

[3] Memorandum from Andrew Ferguson, Merger Guidelines, FTC (Feb. 18, 2025).

[4] Abigail Slater, Responses to Written Questions of Senator Peter Welch for Hearing on "Nominations," submitted February 17, 2025 (“[FTC] Chairman [Andrew] Ferguson has explained that the Merger Guidelines work best when there is stability across administrations, though he has also indicated that there may be some aspects he would be open to reforming. He further explained that much of what is in the current merger guidelines simply restates longstanding law.' I agree with him. It is critical to the Antitrust Division's law enforcement mission that its guidelines reflect the original meaning of the applicable statutory text as interpreted by the binding rules of the courts. The merger guidelines have been revised periodically when time and experience suggest changes are necessary, but when revisions are undertaken a careful and transparent process should be used to ensure our guidelines maintain the stability needed for rules of the road to serve their purpose.”).

[5] Concurring Statement of Commissioner Andrew N. Ferguson, In the Matter of Amendments to the Premerger Notification and Report Form and Instructions, and the Hart-Scott-Rodino Rule 16 C.F.R. Parts 801 and 803, FTC Matter No. P239300 (Oct. 10, 2024).

[6] Statement of Comm’n Melissa Holyoak In the Matter of Tempur Sealy Int’l, Inc. & Mattress Firm Grp. Inc., FTC Matter No. 2310016 (July 2, 2024).

[7] Remarks by Chair Lina M. Khan as Prepared for Delivery Private Capital, Public Impact Workshop on Private Equity in Healthcare, FTC (Mar. 5, 2024).

[8] Statement of Comm’n Rebecca Kelly Slaughter Joined By Comm’n Alvaro M. Bedoya In the Matter of GTCR BC Holdings/SurModics, FTC Matter No. 2410095 (Mar. 7, 2025).

[9] Concurring Statement of Comm’n Andrew N. Ferguson Joined by Comm’n Melissa Holyoak In the Matter of US Anesthesia Partners/Guardian Anesthesia, FTC Matter No. 2010031 (Jan. 17, 2025).

[10] See FTC Legal Library: Early Termination Notices.

[11] Sulaiman Abdur-Rahman, “We Should Be Pragmatic”: Meet the Possible Next FTC Chair, Nat’l L. J. (Nov. 14, 2024, 7:01PM).

[12]FTC’s Ferguson, DOJ’s Slater Signal Less Aggressive Merger Approach Than Biden Predecessors, Openness to Remedies, Vol. 13, No. 257, The Capitol Forum (Apr. 2, 2025).

[13] Id.

[14] FTC Press Release, World's Largest Manufacturer of Spice and Seasoning Products Agrees to Settle Price Discrimination Charges (Mar. 8, 2000).

[15] See Dissenting Statement of Comm’r Ferguson, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC Matter No. 211-0155 (Dec. 12, 2024); Dissenting Statement of Comm’r Holyoak, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC Matter No. 211-0155 (Dec. 12, 2024); Dissenting Statement of Comm’r Ferguson In the Matter of Non-Alcoholic Beverages Price Discrimination Investigation, FTC Matter No. 2210158 (Jan. 17, 2025); Dissenting Statement of Comm’r Holyoak In the Matter of PepsiCo, Inc., FTC Matter No. 2210158 (Jan. 17, 2025); Mark Meador, Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers, The Federalist Society (July 9, 2024).

[16] Mark Meador, Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers, The Federalist Society (July 9, 2024).

[17] Dissenting Statement of Comm’r Ferguson, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC Matter No. 211-0155 (Dec. 12, 2024).

[18] FTC Press Release, FTC Chairman Ferguson Appoints Daniel Guarnera as Director of Bureau of Competition (Feb. 10, 2025).

[19] Dissenting Statement of Comm’n Andrew N. Ferguson Joined by Comm’n Melissa Holyoak in the Matter of the Non-Compete Clause Rule, FTC Matter No. P201200 (June 28, 2024).

[20] U.S. Const. Art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States,”).

[21] Dissenting Statement of Comm’n Andrew N. Ferguson Joined by Comm’n Melissa Holyoak in the Matter of the Non-Compete Clause Rule, FTC Matter No. P201200 (June 28, 2024).

[22] Jared Foretek, FTC Wants Pause on Noncompete Appeals, Pending Decision, Law360 (Mar. 10, 2025, 8:24 PM EDT).

[23] Memorandum from Chairman Andrew N. Ferguson, Directive Regarding Labor Markets Task Force, FTC (Feb. 26, 2025).

[24] FTC Press Release, FTC Orders Building Service Contractors to Stop Enforcing a No-Hire Agreement (Jan. 6, 2025).

[25] Nominations Hearing for Michael Kratsios to Lead the Office of Science and Technology Policy and Mark Meador to Serve as a Federal Trade Commissioner, at 1:30:20 (Feb. 25, 2025).