At a Glance

  • President-elect Donald Trump has selected Federal Trade Commission (FTC) Commissioner Andrew Ferguson to serve as the next chair, succeeding Lina Khan; he has also nominated Mark Meador, a longtime Washington antitrust expert, to fill Ferguson's current seat. Both are longtime members of the conservative legal establishment, with Ferguson recently making headlines for announcing he would oppose any FTC policy initiatives before Trump's inauguration.
  • Ferguson previously served as Virginia's deputy solicitor general and as staff legal counsel to former Senate Republican Leader Mitch McConnell. Early in his career, Ferguson clerked for Supreme Court Justice Clarence Thomas. Meador is a partner at the Washington firm Kressin Meador Powers, and previously served as an antitrust attorney at the FTC and the Department of Justice, as well as an adviser to Utah Republican Senator Mike Lee.
  • The commission is widely expected to take a more moderate regulatory approach than during Khan's tenure. Earlier this month, Ferguson said the FTC should investigate online platforms for "banning users and censoring content," a stance Trump endorsed in a social media post Tuesday, saying Ferguson has a "proven record of standing up against Big Tech censorship."

Deep Dive

One of Ferguson's priorities during Trump's term is likely to be revisiting the controversial merger guidelines issued a year ago by the FTC and the Justice Department. The policy elevated labor market effects as a key factor in evaluating proposed deals, and critics have complained that antitrust enforcers are adopting a presumption that "all consolidation is harmful."

Another area of focus for Trump and Ferguson will be regulating large tech companies such as Google, Meta, Amazon, and Apple. The selection of Ferguson and Meador signals that the FTC "will actively enforce antitrust laws, especially in the tech sector," Neely Agin, head of the antitrust and competition practice at Norton Rose Fulbright, said in an email to Legal Dive. "While both support enforcement, the selection also signals that enforcement will be more business-friendly than under the Biden administration and focused on traditional theories of harm."

One of Trump's main complaints is that tech companies restrict conservative online expression. In a concurring statement on December 2, Ferguson specifically and approvingly noted changes in speech moderation on the X platform since billionaire Elon Musk acquired the former Twitter in 2022.

"At the FTC, we will end Big Tech's vendetta against competition and free speech," Ferguson wrote Tuesday on his X social media account. "We will ensure that America remains the world's technological leader and the best place for innovators to bring new ideas to life."

Outside the tech industry, "new commissioners may continue to support traditional horizontal merger review and investigations (such as in healthcare), but will be more receptive to viable solutions, such as divestiture remedies" to approve proposed deals, said Arindam Kar, an antitrust attorney at Polsinelli. The FTC may reduce scrutiny of private equity firms but will continue its investigations into pharmacy benefit managers, Kar said in an email.

The FTC sued the three largest pharmacy benefit managers in September. Although the FTC's enforcement scope and intensity may diminish compared to Biden's tenure, both Ferguson and Meador have expressed support for strong action by the agency. For example, Meador has expressed interest in reforming antitrust enforcement.

"The difference now is that we are in the midst of a paradigm shift among Republicans and conservatives about the proper role and use of government power," Meador said at a 2022 George Mason University antitrust symposium. "Many on the right are concluding that concentrated economic power is just as dangerous as concentrated political power."

"The growing consensus on the right is that while consumer welfare remains the only appropriate lens for evaluating whether conduct is anticompetitive, the application of that standard has been unnecessarily limited," Meador said. Antitrust enforcement has been consumed by an "economic feast" of various economic and efficiency tests to determine how consumers fare under a merger, Meador said, quoting former U.S. appellate judge Robert Bork.

On the same day Trump announced his FTC picks, the agency achieved a major antitrust victory: a federal judge blocked the merger of Kroger and Albertsons. The latter subsequently terminated the deal on Wednesday and sued Kroger.

"This historic victory protects millions of consumers across the nation from higher prices on basic groceries from milk and bread to eggs, ultimately putting more money in consumers' pockets," FTC Bureau of Competition Director Henry Liu said in a press release Tuesday.

Current Republican FTC Commissioner Melissa Holyoak posted on her X social media account Tuesday congratulating Ferguson and Meador. The FTC's structure allows for commissioners to be allocated along a 3-to-2 partisan split, with the president's party holding the majority. Democrats Rebecca Kelly Slaughter and Alvaro Bedoya also serve on the commission. Khan's term expired in September.

Editor's note: This article has been updated to include comments provided to Legal Dive by Arindam Kar, antitrust attorney at Polsinelli, after the article was published.