• Political salience is an increasingly important metric for assessing deal risk
• FTC, DoJ still “feeling their way” on what Trumpian antitrust means
• Internal documents can make or break a merger litigation case

James Weingarten was chief trial counsel at the Federal Trade Commission (FTC) before joining law firm Milbank in June of last year. He served at the FTC from 2017-2024, where he led some of the agency’s most high-profile cases. Weingarten was the lead attorney in merger investigations, including Activision/Microsoft, Albertson’s/Kroger and Arm/Nvidia.

Weingarten also has extensive experience in healthcare enforcement actions, including hospital mergers such as Steward Healthcare/HCA Healthcare and Saint Peter’s Healthcare/RWJBarnabas, as well as pharmaceutical conduct cases, including the FTC’s cases against AbbVie and Impax Labs. Before joining the FTC, Weingarten was a trial attorney at Williams & Connolly.

The following Q&A has been edited for length and clarity.

Q: What do you think are the most remarkable hallmarks of enforcement under Trump this go around? What are some of the most surprising developments that have occurred? 

It feels like they’re still feeling their way on what Trump antitrust means. At first, I was surprised, a little, when Trump comes in day one and they rescind all these Biden executive orders across the board, [but the] one they leave in place was the competition one. I [thought] they’re trying to signal, maybe, the continuation of strong antitrust.

Then the guidelines stay in place—a little surprising—with no adjustments. I was not that surprised that the new HSR form stayed in place, because to do that, you need rulemaking, and it’s just a lot more difficult. But okay, [I’m] thinking, continuity, interesting. And then I think we’ve seen in the last 30 to 60 days a big shift.

Some of the settlements are a little more surprising, given where they were rhetorically at the start of the administration. Dismissing the Amex travel case outright? Some of that is a little surprising. And some of the changes in DOJ leadership that happened [were] a little surprising. But I think it’s all just, they’re feeling their way on, “what does Trump antitrust mean?”

Q: How do you think the approach to litigation, especially in merger enforcement, might be different under this administration than the previous one?

If this administration is more open to remedy, then you’re going to see less trial activity as more remedies become possible—either as part of a second request or after a complaint gets filed. That would be a difference.

I think the prior administration, when I was there, was extremely skeptical of any kind of remedy. Once they brought a suit, they were less open to a remedy. So that will be a change.

And then we still don’t know how many new cases they are going to bring …  I think the first case they brought was GTCR-SurModics under Trump proper, not during an interregnum. I was not surprised because that’s healthcare. That’s always going to be a big focus.

But since then, it seems like it’s been relatively quiet. We’ll see how they can balance the aggressiveness that they seem to still signal, the openness to remedy that they’re signaling, and then resource constraints, which is just a reality of living in this administration.

When I left FTC, we were at [around] nine cases at a time in the Bureau of Competition, which was a lot. I don’t know if we’ll hit that peak again under this administration.

Q: Speaking of healthcare, we’ve heard a lot from FTC Chairman Andrew Ferguson about Big Tech and healthcare in particular. Do you think these are riskier industries for deals right now? Or are there any other trends you’ve noticed in terms of industries that might be looked at?

Those industries will continue to get extra scrutiny by their nature. I think if there’s such a thing as populist antitrust or Trumpian antitrust, it probably entails scrutiny of the consumer-facing industry. [But] Mars-Kellanova got through. Even though six months have gone by, it’s almost too soon to tell.

You’ve seen DOJ with RealPage housing. Consumer-facing industries like that—rent, consumer product, tech, healthcare—those are always going to be the perennial focus.

Q: We were talking about settlements. When we are following a deal that is in the litigation pipeline, are there any signs to look for that a settlement could be coming? 

Hard to say. When I litigated, I don’t think there was ever a tip of the hand that a settlement order would or would not be coming. It’s very close to the vest amongst the parties and the FTC—unless they have a public strategy, like in Kroger-Albertson’s, of announcing that they’re doing a divestiture and trying to get approval that way. But unless there is a deliberate, public-facing strategy of touting a potential settlement, it’s pretty close to the vest.

Some industries are more divestiture-friendly in some ways. It didn’t ultimately work out, but divesting a bunch of grocery stores is more common in that industry. Or if you’re seeing [something like] gas stations, that’s more common to have a package. I think other industries can be more difficult. It’s really industry and deal-specific. I don’t think there’s any obvious tells.

Q: In the Biden administration, we saw a few times where companies used the “fix-it-first” or “litigating-the-fix” approach, where they announced a potential divestiture publicly first. Do you think that will continue? Or is that era over now? 

When you’re on the on the deal side, you have this toolbox. You can use your tools in your toolbox. And if the right tool is, let’s go in with a divestiture and fix it first—that’s still on the table, but it depends on the deal.

I think you saw that a lot more under the Biden administration. Because if the policy or the express preference was no deals, then [remedy] first has to be the only tool in the toolbox you can reach for. I would expect that if the policy here is, and they’ve been pretty express about it, settlements [are] on the table if it’s a “good settlement,” then you’ll probably see more post-second request or post-complaint filed settlements. They’re just more open to that as a policy preference. In the prior administration, fix-it-first was really the only way.

Q: We’ve seen a number of decisions out of both agencies that seem to coincide with President Trump’s agenda. Do you have a theory as to how this will impact merger enforcement? Is there a common thread or consistent objective you have identified?

There’s always White House involvement and investment in these things. As antitrust has become more politically salient, I am not surprised that there’s a perception, or even a reality, that White House involvement has increased.

There was the Competition Council under Biden. And [former FTC Chair Lina] Khan would go to the White House. I suspect the White House will get more or less involved in antitrust issues as they are more or less politically salient and more or less on the radar.

Maybe it’s a trend that preexists the Trump administration. Maybe there was some era of benign neglect where antitrust was more deeply wonky and less politically salient in the ’90s or the 2000s. But I’m not terrifically surprised at the White House’s involvement. I don’t think it’s atypical for the last eight years and not surprising. It’s so much more politically salient now. Antitrust was never a New York Times front-page issue in the way it is now.

Q: How do you think not having the Democratic commissioners on the FTC could impact merger enforcement? 

I joined the FTC in January 2017. That was just when Trump got elected. After that election, Maureen Ohlhausen became Acting Chair, and Commissioner [Terrell] McSweeny was the one Democrat. We only had two commissioners, but one Republican, one Democrat. I thought they worked fairly well together during that period.

Then we had [former FTC Chair] Joe Simons in a fully stacked commission with Republicans, Democrats. And I thought that was great, because there was a pretty vociferous exchange of ideas, but fine. Then under Chair Khan, again, a fully stacked commission of five. And some serious exchanges of ideas amongst the various parties on the commission about how things should be run, especially on process and procedure.

From my perspective as a litigator and trial lawyer, all to the good. Let’s vet the cases. Let’s get a rigorous internal debate going so that we can make sure we have the better of the arguments. And then, of course, it’s the commissioners’ decision. I’m sorry that there aren’t more voices on the commission. I think it makes for better output when there’s dialogue.

I don’t know what the plan is. We’ll see if the rumors are true that the Commission may be having some personnel changes on the Republican side. I don’t know if that means there will be some Democrats put on as part of that process.

I think the Commission is better for it when there’s a full commission with lots of viewpoints. As a litigator, I liked the opportunity to pressure test your case with more voices. It was always helpful.

Q: Do you have any guidance for those of us who are tasked with assessing antitrust risk from the outside? Anything to look for, for patterns that could emerge with potentially problematic deals? 

I’m always loath to suggest too many patterns. It’s kind of a lame lawyer answer to say every deal is case-by-case, but it is case-by-case. What industry, what’s the history of the buyer and the seller? It’s hard to assess.

I do think you are going to have to take a lens of, “what’s the political salience of a deal?” Is it consumer-facing? Is it more business-facing? What industry, what sector? Is that more politically salient, or less? That’s the best you can do. It’s hard to predict until you get into the facts in the weeds.

The one thing you never know from the outside is what the documents say. That, as a trial lawyer, is [probably] the number one thing I would always look for. And that’s the one thing the outside world will never know until it comes to court.

If the emails are crazy good or bad, one way or the other, that’s going to be critical.

Q: Who are some of the key participants in reviews and investigations that the FTC contacts when it is looking at a deal?

When a deal gets filed under the new regime of HSR, there’s a lot more that comes in. It’s a little more burdensome on staff to even pluck through that. They’re getting a lot more info off the bat than they used to get.

If a deal raises concerns, then staff will absolutely start reaching out to market participants, customers … both to learn about the marketplace and also; are there concerns? And then it will progress to informal discussions with the parties who are trying to attempt the merger. By informal, I mean short of a second request.

Customers [feedback] is huge. It’s a key input to the whole process. Are there customers or market participants, who are credible, who are buying the products or services at issue, who have concerns?

Q: Is there anything else that you think would be good for our readers to know about how the FTC looks at deals or approaches litigation? 

There’s always a small smattering of deals that, by their nature, get the attention, because either they’re the court cases or the press releases. But the staff work basically continues along with the doctrine and the law and the guidelines. Deal in, deal out. The staff is exceptionally professional.

There are hard choices about litigating. You’re making hard choices about risk of winning, risk of losing, signal to the market… [for example] we might lose, but is it worth it to signal to the market that we’re willing to take on hard cases?  If they were easy cases, then people would abandon—and they sometimes do.

A lot goes into the sausage on top of the layer of good staff analysis. And it’s not always as nakedly “political” as people may think. There are a lot of complicated factors on whether you’re going to spend pretty scarce resources on a trial and millions of dollars on experts.

I’m sorry to say it again, but it’s still early to tell what exactly the Trump merger enforcement record is going to be. It’s still early.