On May 2, 2025, the Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC) issued a joint letter to the heads of federal agencies requesting the identification of regulations that restrict competition. The letter requests a list of “[a]nti-competitive regulatory barriers” and a recommendation as to whether the regulation should be modified, rescinded, or maintained by June 18, 2025. It also identifies industries which may be ripe for deregulation – healthcare, energy, technology, food and agriculture, transportation, and government procurement – and provides initial direction as to the types of regulations at issue. We discuss the potential areas of focus within these sectors and the context of deregulation within the Trump administration in further detail below.
Key Takeaways
The level and extent of deregulation remains to be seen, but we have a few key takeaways:
- Companies should consider how deregulation could impact their commercial goals. It’s possible some deregulation takes place swiftly, with the Trump administration making clear it does not believe a public notice and comment period (as required by the Administrative Procedure Act, absent an exception) is always necessary. Planning for potential deregulation (especially in industries being targeted) will allow companies to more easily pivot commercially if required.
- The FTC and DOJ’s solicitation of regulations that serve as “[a]nti-competitive regulatory barriers” could ultimately lead to antitrust investigations into practices in impacted industries.
The Deregulation Initiative Timeline
Deregulation has been a central tenet of the Trump Administration. Earlier this year, President Trump issued two Executive Orders aimed at deregulation. Executive Order 14192 (issued on January 31) declared “the policy of the executive branch” to be that federal agencies should “alleviate unnecessary regulatory burdens placed on the American people” and Executive Order 14219 (issued on February 19) directed federal agencies to “initiate a process to review all regulations” and identify regulations across the federal government that reduce competition, entrepreneurship, and innovation.
The White House then followed with a Presidential Memorandum on April 9 focusing the deregulation initiative on “evaluating each existing regulation’s lawfulness” under ten recent Supreme Court decisions. The Memorandum stated that agency heads should dispense with the notice and comment period when repealing facially unlawful regulations, because retaining such regulations would be “clearly contrary to the public interest.”
In parallel, in late March DOJ announced an Anticompetitive Regulations Task Force to “advocate for the elimination of anticompetitive state and federal laws and regulations that undermine free market competition and harm consumers, workers, and businesses.” This Task Force intends to work with state and federal agencies to revise or eliminate anticompetitive laws and regulations. The DOJ explained that “when regulations serve the few and impose undue burdens on small businesses, private enterprise, and entrepreneurs, they also harm competition and ultimately hurt American consumers, workers, and businesses.”
The DOJ highlighted that regulations could increase compliance costs, preventing businesses from competing on a level playing field with powerful corporations, or discourage or prevent small businesses and new products from entering a market and lowering prices. DOJ may be drawing inspiration from previous waves of deregulation, including in the airline industry and the energy sector in Texas, which proponents argue resulted in increased competition.
As a first step for the Task Force, DOJ initiated a public inquiry to identify “unnecessary laws and regulations that raise the highest barriers to competition.” This request specifically focused on potential deregulation in the housing, transportation, food and agriculture, healthcare, and energy industries. To date, 136 comments have been received, and the comment period remains open until May 27, 2025.
Shortly after the Division announced its Task Force, the FTC also launched a public inquiry into anti-competitive regulations, with no industry limitation. To date, 64 comments have been received, and the comment period similarly remains open until May 27, 2025.
Key Sectors of Focus
The joint letter outlined six primary areas of focus for regulations that may restrict competition and provided further detail on the types of regulations within each industry that may call for further review:
- "Healthcare: Federal regulations in the healthcare sector, especially those promulgated under the Affordable Care Act, may have the effect of pushing low-cost insurance plans out of the market and inducing vertical consolidation that raises prices, while burdensome pharmaceutical regulations may delay the introduction of new, more affordable medicines.
- Energy: Unnecessary environmental and energy regulations may prevent the exploitation of existing energy sources and the development of new projects that compete against incumbent energy providers.
- Technology: Excessive regulation in technology-driven sectors, such as the Biden Administration’s recently invalidated net neutrality rules, may serve the interests of big tech while discouraging investment and innovation by emerging companies. When big tech companies are insulated from competition, they can degrade the quality of their products in numerous ways, including by offering inferior privacy protections and censoring their users’ speech.
- Food and Agriculture: Grocery prices rose throughout the Biden-Harris Administration at the same time that farmers struggled to make ends meet. Eliminating unnecessary anticompetitive regulations can help farmers, growers, and ranchers produce food that unlocks lower prices for American consumers.
- Transportation: Regulations can increase the costs of equipment, limit the availability of flights, prevent the construction of critical infrastructure, and slow innovation in our critical transportation sector. Eliminating anticompetitive regulations will lower costs for consumers and enable transportation to fuel economic growth.
- Government Procurement: Complex federal procurement regulations may favor large incumbent government contractors, which have the resources to navigate these regulations, while preventing smaller businesses from competing effectively.”
We plan to continue monitoring developments in this space, including the comments the agencies receive and the types of specific regulation claimed to be anti-competitive, for developments that are relevant to our clients.
