Trump’s Government Haunted by the Ghosts of Bad Antitrust

Enforcers are waving through bad mergers and weaponizing others to reach ideological ends.

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The belief that there was some continuity between the Biden and Trump administrations on antitrust early this year was not wishful thinking or based in fantasy. There were real indications that this could be real: the continuation of the 2023 merger guidelines, the similar proposed remedy for Google’s monopolization of search, and even recently, the finalization of a junk fee rule requiring all-in pricing for ticketing and hotels. This spurred hopes that Trump appointees Andrew Ferguson and Gail Slater would not represent too much of a drop-off from Lina Khan and Jonathan Kanter in their respective positions of antitrust enforcement.

But conclusions must be led by the facts, and the facts that have piled up over the past couple months show that Trump’s team has alternated between a return to damaging laissez-faire attitudes around corporate consolidation and a weaponization of antitrust for their own ideological ends. The latest development, the greenlighting of an advertising merger on the condition that it almost literally steer money to Elon Musk, represents the apotheosis of this decline.

Backsliding was always likely to happen in a White House blessed by Big Tech, populated by billionaires, and lacking in firm policy beliefs. The authoritarian mindset wasn’t going to skip over a couple agencies on the road to Trumpian control. Those who do see the threat of corporate power in our society have a responsibility to call out this disturbing trend, rather than taking solace in the points of agreement. It’s good that there will be a bit less to rebuild in antitrust than the rest of the government in the aftermath of Trumpian destruction, but it’ll still be one hell of a reclamation project.

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Perhaps the most chilling action taken of late was the Federal Trade Commission’s approval of a $13.5 billion merger between Omnicom Group and Interpublic Group, which will create the largest advertising holding company in the world. The FTC could have examined the impact on pricing by advertisers, or on workers at imminent risk of layoffs through the creation of “efficiencies,” or on innovation, or on the possibility for exclusive dealing, as we’ve already seen in the Google adtech case (which is being adjudicated just down the street by the Justice Department’s antitrust division). 

But instead, the FTC issued a consent order with no divestitures or conditions other than to “prevent Omnicom from engaging in collusion or coordination to direct advertising away from media publishers based on the publishers’ political or ideological viewpoints.” This is an ideological crusade to stop website boycotts, and particularly, a boycott of Elon Musk’s X. The FTC is also investigating Media Matters for its role in instigating an economic boycott of X, something that Musk has sued the organization over.

Boycotts are First Amendment-protected activity with ample precedent, and in fact refusing to advertise on X where your ad might run next to neo-Nazi or pornographic posts makes plain business sense. Effectively banning boycotts inside a merger approval is just a form of coercion to get advertising companies to steer business to platforms that the government likes. For all the talk of politicizing antitrust, this is an actual, egregious version of it: simply a favor to an ally. “The guiding principle of Andrew Ferguson as FTC Chair seems to be ‘we’ll let you amass power illegally, just don’t use it to be mean to us and our friends,’” as Matt Stoller of the American Economic Liberties Project put it.

This feels disturbingly like the Federal Communications Commission’s gangster use of antitrust to wage war on so-called DEI measures. And if it were the only terrible action Trump’s FTC or Justice Department had taken, it would actually be sufficient to write off their commitment to antitrust, since it’s such a blatant weaponization of the tool to reward friends and punish enemies.

Unfortunately, it’s more like the culmination of a pattern. When the FTC sees the potential for abuse in stories of how tariffs can lead to price hikes, in “scams” in all sorts of consumer actions, and decides the best use of their time is a workshop on unfair and deceptive practices in “gender-affirming care,” clearly Ferguson is attaching a higher purpose to personal ideology than to the laws of the land.

There’s the puzzling U.S. Steel-Nippon Steel merger, which has gone into effect despite no real terms or understanding whether it’s a merger at all. We mainly know that the government received a “golden share” that allows it to dictate certain company actions, which is interesting but potentially an extension of the politicization risk in the Omnicom deal. Unions and steelworkers are now dependent on the whims of Donald Trump for their jobs and livelihoods.

The FTC dropped a lawsuit against Pepsi for offering differential pricing for its products if the retailer was a big-box store, which reduces competition and ultimately increases prices as a result. The decision tells big businesses that price discrimination is fine again, while abandoning smaller sellers and distributors who sought the restoration of the Robinson-Patman Act (RPA). Most disturbing is the fact that FTC Commissioner Mark Meador, who called the lack of RPA enforcement “lawless” before reaching the agency, voted to dump the Pepsi case, on dubious grounds that there wasn’t enough evidence, which smacks of cowardice.

The law is nothing but a tool in the hands of Trump.

Meanwhile, situations where Trump doesn’t want to exercise dictatorial control have defaulted to the rubber stamp we’ve seen in antitrust for 40 years. The Justice Department approved the Capital One-Discover deal, enabling a credit card giant that further concentrates consumer financial services. Both the Justice Department and the FTC have greenlit mergers with weak divestitures that have a bad track record at protecting competition.

It hasn’t been all bad. The FTC’s lawsuit against John Deere for preventing customers from repairing their own equipment survived the company’s motion to dismiss and will go to trial. And in May, the agency sued a multilevel marketing company that they allege has bilked people out of more than $1.2 billion in the past seven years.

But the trend is not great. And eventually, the business community will realize that they can get their deals through, which will lead to more of them. While merger deals, in part owing to tariff uncertainty and high interest rates, are down in number on the year, larger deals are actually way up. That includes Google’s $32 billion attempted purchase of Wiz, a cybersecurity startup, and the $22 billion megadeal between broadband and cable companies Charter and Cox. Total deal value is up quite a bit this year as a result. Even private equity rollups, which Joe Biden’s antitrust enforcers targeted relentlessly, are making a comeback.

Nobody should have been fooled that an administration whose relationship to the law is self-serving in all other areas would keep their hands off when it came to antitrust. The law is nothing but a tool in the hands of Trump.

There is a small faction among Republicans that paid lip service to a different way of looking at corporate power. Some of them are in decision-making positions now. They may fear following their values, however, and instead find it convenient to flatter their leader. They may not have the language or the gumption, after decades of weak antitrust enforcement, to know how to actually break up a company. They will have to live with those choices, and know that when they had a moment to make a difference for people in this country, they squandered it.

Ultimately, it will take people who put the public interest above their personal comfort to succeed in reorienting the government’s relationship to corporate power. Nobody should have believed it would happen in a straight line. Fighting for democratic and economic liberty is an open-ended process. And we shouldn’t take for granted that the fight will continue without demand from the outside.