April Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to this edition of the Sidley Antitrust and Competition Bulletin — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you.

• The U.S. Department of Justice (DOJ) Assistant Attorney General Gail Slater and Federal Trade Commission (FTC) Chairman Andrew Ferguson have each indicated a return to the agencies’ openness to merger remedies.
• In a further departure from Biden administration policies, FTC officials indicated that the FTC does not take special aim at private equity firms.
• The European Commission (EC) launched a call for tender for an economic study on the dynamic effects of mergers.
• The DOJ Antitrust Division created an Anticompetitive Regulations Task Force.
• The EC also launched a public consultation for feedback on how industry cooperates to procure and recycle critical raw materials.

Read more on how this news can affect your business below ….

The switch on merger remedies: Diverging from Biden administration policies, which avoided negotiated merger remedies, the heads of the DOJ Antitrust Division and the FTC (Agencies) have indicated a willingness to consider merger remedies. Both DOJ Assistant Attorney General Slater and FTC Chairman Ferguson recently noted that the Agencies are inclined to accept merger remedies when they are “realistic” solutions to potentially anticompetitive issues with the transaction at hand. Chairman Ferguson highlighted that this approach does not mean it is “open season and that we ought to return to an era that was characterized by tremendous deference to the C-suite and a preference for monopoly over intervention because of the fears of the false positives.” But he believes there are benefits to the FTC’s moving away from a strict thumbs-up or thumbs-down approach to merger review, as that approach killed potentially procompetitive deals that would have benefited consumers if proper remedies were applied. Both agency heads discussed that the merger review process is designed to strike a balance that avoids deterring procompetitive deals while stopping anticompetitive mergers.

Why it matters: The change in tune with respect to merger remedies, coupled with the re-launch of early termination of the Hart-Scott-Rodino waiting period, signal an openness from the Agencies to “get out of the way” of deals that are not anticompetitive. The ability to offer proposed remedies early in the review process may result in more deals with competitive overlaps being attempted and consummated.

FTC official’s comments suggest a softening toward private equity: During the American Bar Association Antitrust Section Spring Meeting on April 2-4, Rohan Pai, the acting director for Mergers IV at the FTC, said the FTC does not take special aim a private equity firms acting as divestiture buyers in a merger remedy or engaging in roll-up strategies. He noted that the FTC makes case-by-case determinations on the merits of a private equity buyer’s acquisitions and that it will scrutinize roll-up strategies regardless of the buyer’s business model.

Why it matters: These views are a departure from the Biden era, where enforcers were vocally skeptical of private equity firms. These statements signal that private equity is no longer squarely in the crosshairs of the FTC and that private equity transactions will be evaluated on their merits — similarly to public company transactions.

EC’s call for tender for an economic study on the dynamic effects of mergers: On March 25, DG Competition launched a call for tender for an in-depth economic study on the dynamic effects of mergers, focusing on how mergers influence firms’ incentives to innovate, invest, and adapt in the long run. The initiative is part of a broader effort to strengthen the evidence base for merger control policy, particularly in light of growing recognition that static measures such as price and output alone may not fully capture the competitive implications of a merger. The study will explore forward-looking aspects of competition, such as innovation potential, investment behavior, and market entry or exit decisions and contrast these with such traditional static effects as price changes and market concentration. It will also address the interplay between dynamic and static factors, providing analytical tools to assess whether efficiencies from mergers offset potential harms.

Why it matters: The results of the study are expected to inform the Commission’s upcoming review of the 2004 Horizontal Merger Guidelines and the 2008 Non-horizontal Merger Guidelines. More broadly, it reflects a shift toward embedding long-term economic resilience and innovation capacity into merger assessments. The study will also guide future enforcement actions by offering conceptual, empirical, and case-based insights into the conditions under which mergers promote or hinder innovation and investment. Proposals for the tender are due by May 20, 2025.

The Trump administration’s sweep of anticompetitive laws and regulations: On March 27, the DOJ Antitrust Division launched an Anticompetitive Regulations Task Force (Task Force) designed to advocate for the elimination of anticompetitive state and federal laws and regulations that undermine free market competition and harm consumers, workers, and businesses. It follows two executive orders issued by President Donald Trump this year. The January 31 order declares that “the policy of the executive branch” is that federal agencies should “alleviate unnecessary regulatory burdens placed on the American people.” The February 19 order directs agencies to start reviewing all regulations and identify those that “impose undue burdens on small businesses and impede private enterprise and entrepreneurship.”

Finally, via a third order on April 9, the President required federal agency heads to identify regulations that create anticompetitive barriers with recommendations for what to do about them. This order directs agency heads to consult with TFC chairman Ferguson and U.S. Attorney General Pamela Bondi to review any regulations that “create, or facilitate the creation of, de factor or de jure monopolies” or otherwise create unnecessary barriers for new market participants or limit competition.

Why it matters: The press release indicates several industries that may have regulations that will be under scrutiny such as housing, healthcare, energy, food and agriculture, and transportation. Companies, particularly in those industries facing burdensome regulations, may have a new arrow in their quiver to help overcome regulatory obstacles.

EC launches consultation on industry cooperation for critical raw materials: The EC has launched a public consultation seeking feedback on how European companies cooperate to procure and recycle certain critical raw materials in line with EU competition rules. This initiative, announced as part of the Clean Industrial Deal Communication, focuses on addressing supply chain challenges for materials vital to sectors such as renewable energy, digital, aerospace, and defense. The consultation will initially focus on 14 critical raw materials identified under the Critical Raw Materials Act — including aluminium, cobalt, lithium, and rare earth elements — and invites input from companies involved in extraction, processing, and recycling of these materials. Interested stakeholders are encouraged to submit their views by May 31, 2025.

Why it matters: As the EU accelerates its green and digital transitions, securing access to critical raw materials has become an economic and strategic priority. The consultation is significant because it signals a willingness by the EC to consider providing clearer guidance on how companies can lawfully cooperate in this space. For businesses, this could mean new pathways to joint procurement, recycling partnerships, or resource-sharing agreements — provided they comply with competition rules. Participation in this process may help shape future enforcement approaches and offer businesses greater legal certainty as they navigate complex supply chain and sustainability challenges.