President Trump revokes Executive Order on competition, rejects Biden administration’s “whole-of-government” approach to antitrust enforcement

The revocation was praised by leadership at the Federal Trade Commission (“FTC”) and Department of Justice Antitrust Division (“DOJ” or “Antitrust Division”), with FTC Chair Andrew Ferguson characterizing the Executive Order as the basis of a “flawed philosophical underpinning” for the Biden administration's “undue hostility towards mergers and acquisitions.”

Revocation is nail in the coffin for Biden administration's “whole-of-government” approach to antitrust enforcement

The Executive Order on Promoting Competition in the American Economy reflected the Biden administration's intense focus on concentration as a serious risk to the U.S. economy, and targeted perceived corporate consolidation and potential anticompetitive activity in the labor, financial services, health care, transportation, telecommunications, agricultural, and tech markets.  The Executive Order included more than 70 initiatives aimed at decreasing barriers to competition that the Biden administration claimed led to decreased wages for workers, increased prices for consumers, and stymied innovation. The breadth and scope of the order represented the view of the antitrust agencies—under the leadership of former FTC Chair Lina Khan and DOJ Antitrust Division Assistant Attorney General (AAG) Jonathan Kanter—that increased competition across the American economy was integral to the success of the post-pandemic economic recovery plan that was a priority of the Biden administration.  As we tracked in our 2022 and 2023 surveys of the federal government's response to the Executive Order, in addition to prompting the publication of various agency reports on competition issues, it also led to information-sharing, training, and various other collaborative efforts across agencies that in the past may have had little reason to interact on the issue of competition.  

Trump DOJ Antitrust Division declares revocation an opportunity to “recalibrate and modernize the Federal approach to competition policy”

Leadership at both the FTC and DOJ touted the revocation as a necessary course correction from what they consider to have been the Biden administration's “overly prescriptive and burdensome approach”¹ to antitrust enforcement.  In a statement, FTC Chair Ferguson expressed support for the revocation, asserting that “markets thrive when they operate freely and when the Federal government does not pick winners and losers but allows businesses to grow and innovate.”  He criticized the Executive Order for “encourag[ing] top-down competition regulations.”² Similarly, in a press release announcing the revocation, Assistant Attorney General Gail Slater highlighted DOJ's efforts to promote an “America First Antitrust” policy, which she characterizes as “empowering the American people in the free markets [and] not enabling regulators and bureaucrats to prescribe outcomes.” 

As we have discussed, Chair Ferguson and AAG Slater have articulated an antitrust enforcement philosophy that considers the threat from “Big Government” to be on par with the perceived dangers of private business consolidation.  It follows that they would support revocation of the Executive Order, which has been criticized by conservative commentators for “target[ing] large companies, irrespective of their merits”³and “fail[ing] to recognize that certain federal programs are the cause of competitive harm, not its cure.”⁴

Indeed, pushback against “anticompetitive state laws and regulations” has been a focus of the agencies in the second Trump administration.  In late March 2025 DOJ announced that, in response to President Trump's January 2025 Executive Order Unleashing Prosperity through Deregulation, it was launching an Anticompetitive Regulations Task Force to “advocate for the elimination of anticompetitive state and federal laws and regulations.”  In April 2025 the FTC launched its own public inquiry into the impact of federal regulations on competition, and issued an RFI inviting members of the public— including consumers, workers, businesses, start-ups, potential market entrants, investors, and academics—to comment on how federal regulations can harm competition in the American economy.⁵

Looking ahead

According to AAG Slater, the Trump administration's rejection of the expansive “whole-of-government” approach to antitrust enforcement established by President Biden's Executive Order on Competition will provide the agencies with the opportunity to work to remove “barriers to innovation” and “limit[] regulatory burdens on free competition.”  AAG Slater praised the “steady progress” DOJ has made in “freeing up deal flow” by reviving the use of “targeted and well-crafted consent decrees” to settle merger reviews and the reinstatement of early termination for uncontroversial HSR reviews. 

While recent merger settlement activity at the FTC and DOJ makes it clear that the agencies are in fact amenable to negotiating remedies to resolve the potential anticompetitive effects of a proposed deal—a divergence from the anti-settlement posture of the previous administration—the agencies have also demonstrated a willingness to employ more novel remedies in their merger review program.  In addition, political influence in merger outcomes is reportedly increasing as well, highlighting that antitrust enforcement in the second Trump administration is likely to continue to forge a more unpredictable path than what we have seen in previous Republican administrations.

Authored by Logan Breed, Chuck Loughlin, and Jill Ottenberg.