In recent years, both Republican and Democratic-led antitrust agencies have pursued aggressive merger enforcement programs, litigating many cases and settling many more. However, “populist” and other progressive critics have urged the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (Antitrust Division) to be more aggressive in their merger enforcement.

What might more aggressive enforcement look like in practice, with a Democratic-led FTC and Antitrust Division in the Biden Administration? A series of split decisions in merger cases at the FTC offers potential answers. In these decisions, the two Democratic commissioners - Rohit Chopra and Rebecca Slaughter - outline a substantially more interventionist enforcement approach than their Republican colleagues. If the opinions expressed in their dissents become views at the FTC and the Antitrust Division during the Biden Administration, businesses would face important implications for transaction closing risks, the likelihood and type of remedies that may be imposed, and the length of investigations.