November 2, 2020

Antitrust: How Will the Election Influence Merger Enforcement?

Dechert recently issued its quarterly report on antitrust merger investigations. The report says that investigative activity declined during Q3, with only four significant merger investigations completed during the quarter. But the report also says that the 2020 YTD total is the third-highest since 2011. In addition to its data on investigations, the report also offers some thoughts on how the outcome of the U.S. election might influence merger enforcement policy. Here’s an excerpt:

– Trump-era merger enforcement levels have been roughly similar to the Obama/Biden administration’s second term, though the U.S. agencies have been taking longer to review mergers.

– If Biden were to win the election, DAMITT data show that a return to the Obama/Biden era would be unlikely to result in a substantial increase in the number of merger enforcement actions absent new legislation or substantially higher agency funding.

– Policy changes are likely to materialize first at the DOJ, where the leadership can be replaced quickly, in comparison to the FTC, where Republican majority control will continue until 2023 absent resignations. If Trump were to win re-election, current enforcement levels likely will continue through his second term.

Although antitrust regulators have been taking longer to review mergers during the Trump administration, the report notes that they’ve picked up the pace in 2020. This year, significant investigations are being completed in an average of 10.3 months, compared with an11.9-month average for 2019. The increased speed of FTC investigations has been a key contributor to the improved overall pace.

John Jenkins