One of the things you used to hear conservatives say a lot is that they don’t want the government to “pick winners and losers.” That sentiment has been muted for the past nine months, because such choices have become the prime directive of the Trump administration. From taking stakes in companies, to dictating what kind of energy can get permitted, to going to bat for Big Tech in international trade deals, Trump has treated the U.S. economy like a personal plaything, and corporate success increasingly depends on proximity to the king. He didn’t raise $350 million for that White House ballroom because corporations think state dinner event spaces are a worthwhile investment.
Last week, a rumor emerged revealing another example of Trump stage-managing the business world. Warner Bros. Discovery—which owns a movie studio, numerous cable networks (CNN, Discovery, TBS, TNT, HGTV, Cartoon Network, TCM), the pay-TV channel HBO, streaming service HBO Max, DC Comics, part of The CW network, part of Fandango, several gaming studios, some theme park in Madrid, and much more—has publicly announced that it is for sale. Several companies, including Comcast, Netflix, and Amazon, are sniffing around a purchase, but the one that’s clearly amped to acquire WBD is Paramount, fresh off of being acquired itself by David Ellison’s Skydance Media.
Paramount has made three unsolicited offers for WBD, none of which were accepted. WBD CEO David Zaslav opening up the company for public bidding robs Paramount of its head start. One way Ellison can close the deal, then, is to pick up the phone and call his friends in the Trump administration to force the issue. But there’s a problem with Trump’s grand plan to remake the media landscape: He’s not the only one who gets to make the decision.
Related: This proposed media empire runs on AI
Here’s the Trump administration’s plan. According to the New York Post’s Charlie Gasparino, the White House would give preferential treatment to Paramount in any sale by making it harder for any other suitor to buy WBD. “Who owns Warner Bros. Discovery is very important to the administration … The Warner board needs to think very seriously not just on the price competition but which player in the suitor pool has been successful getting a deal done. And that points to the Ellisons,” a senior administration official told Gasparino. To reinforce this, Makan Delrahim, Trump’s head of the Justice Department Antitrust Division in the first term, has been hired by Paramount to ensure strong administration ties.
Vowing, even in private, to block Comcast or Netflix or Amazon from buying WBD, but wave through Paramount, is illegal (if that matters anymore). There are nakedly ideological reasons behind this: The Ellison family is a longtime Trump ally; CBS News is being remade in Bari Weiss’s image; Comcast and Netflix at least have angered the president with Saturday Night Live parodies or perceived wokeness; and these grievances are driving the discretionary application of law.
Trump pays more attention to media mergers than other business combinations, as befits his obsession with how he is portrayed to the public. The Ellisons, who already have their hands on TikTok, would add CNN to CBS News, building out a right-leaning rival to Fox in old and new media. Doing so through a shotgun wedding with implicit (if not explicit) approvals is just deeply corrupt.
In a normal environment, these proposed mergers for WBD would violate antitrust law. Dropping from five major studios to four would substantially lessen competition for producers and writers and actors. Combining the fourth- and fifth-largest streaming services, as a WBD-Paramount tie-up would, or number one and number four in the case of Netflix, robs consumers of choice in a market where price hikes are a routine occurrence. And Paramount has already cut 1,000 jobs after its Skydance merger: Mass layoffs would surely be the result of any WBD acquisition. Fewer options, added costs, and a strangling of the information needed in a democracy would be just some of the results.
Under the Clayton Act and their interpretation in new merger guidelines written in 2023 by President Biden’s antitrust enforcers, a merger between Paramount and WBD would trigger several structural presumptions of illegality, with respect to both movie studios (the combined company would have more than 30 percent of the market) and televised news. Those 2023 merger guidelines are still in place, and importantly, state attorneys general can use them and the relevant federal laws to block the merger.
Any state receiving programming from WBD or Paramount—in other words, every state—would have jurisdiction to sue. There’s nothing stopping the attorney general of Minnesota or Washington or California from saying right now that, based on their reading of the law and the known market shares of the relevant parties, a WBD-Paramount merger would be illegal and they would seek an injunction if it proceeds. If Trump is signaling in one direction, AGs could signal in another.
Maybe state enforcers won’t want to prejudge the case, but others have already stepped forward. The Writers Guild of America, whose members are on the front lines of this potential sale, called a WBD tie-up with Paramount or any other studio or streaming service “a disaster for writers, for consumers, and for competition” and said their members would “work with regulators to block the merger.” I doubt that they’re referring to the Trump administration.
In the absence of a strong stand from state regulators, Trump and Ellison will likely get what they want. There certainly isn’t any fight left in the Justice Department’s Antitrust Division, which just approved a merger between Disney and Fubo, putting another outlet under control of the sports media empire that owns ESPN. Fubo had blocked Disney’s aborted attempt to bundle sports into one service called Venu, so Disney responded by simply buying its opponent. Despite an investigation, the Antitrust Division waved it through.
Gail Slater’s division hasn’t brought a single new merger or monopolization case to trial this year. Its most notorious merger challenge, between Hewlett Packard Enterprise and Juniper Networks, was aborted in a settlement organized by MAGA lobbyists, which are becoming more dominant as directors of government policy. Cowed by lobbyist anger, the Antitrust Division has subordinated itself into nothing more than an advisory panel for big business.
Yet the drafters of our antitrust laws considered the possibility that the federal government would get too cozy with corporate titans by allowing states into the process. In its bid to squash a judicial proceeding that could blow open the corruption hanging over competition policy, Slater’s Antitrust Division concedes that states can bring their own actions to block mergers anytime they want. They ought to take her up on it preemptively in the WBD-Paramount case.