President-elect Donald Trump’s selection of antitrust regulators indicates that the scrutiny of Big Tech during the Biden administration will likely continue during Trump’s term. Trump’s nominees—Gail Slater as assistant attorney general for antitrust at the Department of Justice, Andrew Ferguson to chair the Federal Trade Commission, and Mark Meador as the third Republican commissioner at the FTC—all tend to align more closely with the populist wing of the Republican Party, which supports more stringent antitrust enforcement, especially concerning Big Tech.
This continued pressure on Big Tech by the federal antitrust regulators signals that the government will not look to walk away from the cases in the ongoing litigation against Amazon, Apple, Google, and Meta. These agencies started the investigations that resulted in many of these lawsuits during Trump’s first term, which is already a sign of continuity in the coming transition. Additionally, the recent investigation into Microsoft by the FTC, which is still underway, may continue under the agency’s new leadership. So, hope for any immediate relief brought on by the change in administration will likely fall flat.
However, the upside these new regulators may provide for these corporations is that the penalties sought in these cases may be less extreme than if the Biden administration’s regulators had remained in place. For example, in the DOJ’s case against Google on its dominance in online search, a Trump-led DOJ may no longer seek to force the company to divest its Chrome browser. Instead, the new DOJ leadership may look for less drastic penalties, which are more likely to include some form of behavioral remedies, such as how Google uses the data it collects through its browser.
Given this more open mindset from the antitrust regulators, there is a greater chance that these tech companies may look to find settlements that avoid lengthy court battles under the Trump administration. While this may still not be a likely outcome as these businesses have the resources to fight and appeal the decisions if they want, reaching such a settlement was near impossible under the Biden administration, barring significant concessions from the companies. At this point, it is difficult to know just how likely such outcomes are. However, how possible it may be could become apparent in the first few months after these regulators are confirmed, if not during the confirmation process.
These upsides for Big Tech reflect the more significant philosophical shifts expected from Trump’s antitrust regulators in replacing Biden’s regulators. The changes will likely include placing greater value on behavioral remedies and re-emphasizing traditional theories of harm, such as the consumer welfare standard. While Slater and Ferguson have been referred to as aggressive by the Financial Times, that evaluation is when they are compared to their Republican peers, not when side-by-side with the Biden administration’s officials, Federal Trade Commission Chair Lina Khan and Assistant Attorney General for Antitrust Jonathan Kanter.
Big Tech may be the smallest beneficiary of the change in presidential administrations. However, the sector is likely to see some marginal relief still, even if it remains at the top of the antitrust regulators’ priorities and the industry under the most scrutiny.