• Congressional scrutiny no substitute for merger enforcement
• Shame only as powerful as Corporate America, Trump allow it to be
• DoorDash-Instacart shows corporates continue to test boundaries

Come 3 January 2027, Democrats will control both the Senate and House, with many expecting congressional oversight to curtail the seedier aspects of the Trump administration.

Hell or High Water does not share such optimism, at least in terms of merger enforcement.

After all, the rot set in well before Donald Trump retook residence of the White House. This column is never happier than when finding fault with both parties, and views the strategic dysfunction of the Biden era as having cracked the door open just enough for the cronyism of this Trump 2.0 era to slip in.

M&A activity was confounded under Biden’s antitrust project, which often seemed designed around purpose-built unpredictability. Under Trump, this has gone further, with confidence that enforcement decisions are being made through any consistent application of law or fact the major casualty.

A Democrat-controlled Congress will surely be motivated to shed light on problematic conduct in merger enforcement these past two years via committee investigations and hearings.

Future dealmaking and subsequent enforcement decisions will have to contend with a more public airing.

Sunlight may be the best disinfectant, as Justice Brandeis famously argued. But merger enforcement is not undertaken via the court of public opinion.

That remains the purview of the executive branch – and Congress will be limited in its abilities to do much beyond banging on pots and pans to call attention to bad actors.

If congressional Democrats spend the next two years relying on public shame as their principal weapon against questionable merger oversight, they will find to their cost how little it influences an administration immune to its power.

Trump, facing no further elections, is unlikely to care one iota what the public may hear about how he runs these fairly esoteric corners of the Washington bureaucracy. It is equally difficult to imagine his acolytes losing much sleep over committee criticism.

And companies contemplating mergers that would only be proposed under this administration are not going to pass up the opportunity to transact in those circumstances.

Just ask DoorDash and Instacart.

Arguably, theirs is a merger to a duopoly in a consumer-facing industry, that – unless the Trump enforcers go full Anywhere/Compass – will be pending when the Democrats are seated in their committee-leading chairs. This is the exact kind of merger that will be scrutinized.

Yet the likelihood of that public naming-and-shaming did not outweigh the opportunity to get one through while the government is so, shall we say, receptive.

For grocery stores not named Walmart or Whole Foods, Instacart and DoorDash represent two of only three options for grocery delivery, the other being Uber Eats.

US antitrust enforcers have historically approached these so-called three-to-two mergers with deep skepticism, and this one would appear likely to trigger the structural presumptions of illegality embodied in the 2023 Merger Guidelines, should the feds choose to bring a lawsuit.

If they don’t, congressional Democrats will be righteously up in arms.

Maybe CEOs will be summoned to appear before a committee to justify their plans and tactics. Maybe some consumer groups will start a petition. Maybe labor organizations will mount a temporary boycott.

And…?

The public will forget – or write it off as a relatively insignificant moral failing by Corporate America in an environment where companies are speculating about bringing about the destruction of humanity by mistake.

A cost/benefit analysis is likely to suggest it’s worth it to take advantage of this once-in-a-century moment when corporations need not heed the technocrats so carefully.

This recent merger announcement certainly indicates that’s the case – and we’ll likely see further such roll-of-the dice gambits as the hourglass runs down on this unique presidency.

It is an uncomfortable reality, but here we sit – where the primary check on presumptively illegal dealmaking is shame itself.

It will not be enough. Not for the companies pursuing these deals. Not for the appointees running the agencies. And surely not for Trump.

Hell or High Water is a weekly column that offers commentary from our editorial team on the main deals undergoing regulatory reviews as well as the broader enforcement environment. The opinions expressed here are those of the writer only.