Antitrust enforcers in the second Trump administration have already shifted away from several hallmarks of Biden-era merger antitrust enforcement. First, the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ) are granting requests for early termination under the Hart-Scott-Rodino (HSR) Act. Second, the agencies are fulfilling their promise to resolve transaction-related competition concerns through settlements, marking a shift from the Biden administration’s preference for litigation. In particular, the DOJ and FTC have begun to accept merger remedies to resolve competition concerns and appear less likely to impose prior approval requirements in consent agreements.
While we anticipate that the agencies will continue to closely scrutinize the competitive implications of deals, these important procedural changes will reduce friction in the review process.
I. Return of Early Termination
While the DOJ and FTC traditionally granted early termination to no-issue transactions, that approach changed during the Biden administration when the DOJ and FTC suspended early termination. In total, only 11 early termination requests were granted by the antitrust agencies during the Biden administration. For comparison, there were 4,562 grants of early termination during President Trump’s first term and 7,332 under President Obama’s two terms.
The second Trump administration has restored early termination grants. The agencies already have granted 180 early termination requests – more than sixteen times the number of early terminations granted during the entire Biden administration.
This return of early terminations reduces uncertainty for merging parties and expedites deal timelines in transactions that the agency determines do not raise competitive concerns based on either the HSR filing itself or a short investigation. Still, a grant of early termination is never guaranteed, and parties should continue to account for a full 30-day review period when considering timelines for deals that may be good candidates for early termination.
II. Remedies as an Enforcement Mechanism
As the new administration reorients federal merger enforcement, one of the clearest shifts is a renewed reliance on remedies to resolve competitive concerns. Structural remedies—long favored by both the FTC and DOJ—are once again front and center, with the agencies signaling a preference, where appropriate, for clean, market-based solutions over prolonged litigation. Though structural remedies are preferred, the administration is also entering into remedies with behavioral elements. At the same time, the agencies appear to be recalibrating their approach to prior approval and notice provisions, applying them more selectively than in recent years. Together, these trends reflect a more pragmatic enforcement posture that prioritizes certainty, speed, and clarity.
a. Structural Remedies are Back
The agencies have a long-standing preference for structural remedies. In both its 2004 and 2020 Merger Remedies Manual, the DOJ emphasized that structural remedies are preferred because they are clean, certain, effective, and avoid ongoing government entanglement in the market. The FTC has similarly emphasized that divestitures are typically the most effective way to restore competition, particularly in horizontal mergers.
Recent statements from agency leadership echo this sentiment. Six of the eight remedies approved during President Trump’s second term have been structural. For example, on August 7, 2025, the DOJ announced its conditional clearance of UnitedHealth Group’s $3.3 billion acquisition of Amedisys, subject to the divestiture of 164 home health and hospice facilities across 19 states. Notably, the divestiture did not include all of the overlapping facilities DOJ cited in its complaint, but it is “designed to remedy most of the lost competition.” As part of the settlement, Amedisys will also pay a $1.1 million civil penalty for falsely certifying that it had complied with the DOJ’s Second Request despite failing to produce certain responsive archived emails, text messages, and hard copy documents, which is far less than maximum penalty of $13.01 million. This settlement underscores the current administration’s willingness to accept structural divestitures to “provide American consumers the benefits of competition today” rather than risk an unknown outcome in litigation.
When it comes to structuring a divestiture, the agencies generally prefer remedies that divest autonomous, operational business units with a demonstrated ability to compete. This type of divestiture allows for the immediate transfer of market share, with an approved divestiture buyer stepping into the competitive position of the divestiture seller. Of the six structural merger remedies approved during the first six months of the new Trump administration, four have involved divesting autonomous business units while the other two have involved divestitures of product lines.
Before agreeing to a structural remedy, the agencies will often require selection and approval of the divestiture buyer. This pre-approval is particularly necessary when the structural remedy does not involve an autonomous business unit. Under the new administration, five of the six divestitures have involved known buyers, vetted by the agencies. For example, in Alimentation Couche-Tard / Giant Eagle, the FTC found the divestiture buyer, Majors Management, LLC, to be an “established leader in operating, developing, servicing, and supporting” retail convenience centers and gas stations, concluding Majors “is well positioned to compete effectively and ensure that competition is fully maintained[.]”In the “limited circumstances” in which agencies may accept a remedy without an identified and approved buyer, transacting parties and the reviewing agency would need to be confident there will be acceptable buyers.
b. Behavioral Remedies Remain on the Table
While structural remedies remain the agencies’ preferred approach, new leadership at the FTC and DOJ have accepted behavioral remedies – both as supplemental measures to reinforce structural remedies and as stand-alone fixes. Behavioral remedies typically involve injunctive provisions regulating the merged firm’s business conduct after the merger.
The agencies historically have disfavored the use of behavioral remedies. They are more difficult to craft and enforce and may create unintended consequences on the competitive process post-merger. The FTC and DOJ have found that behavioral remedies “substitute central decision making for the free market,” and “[t]hey may restrain potentially procompetitive behavior, prevent a firm from responding efficiently to changing market conditions, and require the merged firm to ignore the profit maximizing incentives inherent in its integrated structure.” Similarly, as market conditions evolve, behavioral remedies may lose their impact or relevance.
There are, however, limited circumstances in which the agencies have found behavioral remedies to be appropriate to address transaction-related concerns. First, behavioral remedies can be used to supplement or facilitate structural remedies. Such supplemental behavioral remedies can include temporary supply agreements to assist divestiture buyers while they ramp up production, limits on the ability for the merged firm to re-hire key personnel necessary for the success of an autonomous structural remedy, or firewalls to prevent the spread of competitively sensitive information while a structural remedy is implemented. In the second Trump administration, all six structural divestments included a transition services agreement, and four of the six included some sort of firewall to maintain competitively sensitive information.
Second, there may be some situations where behavioral remedies are appropriate as a stand-alone remedy. In its 2020 Merger Remedies Manual, the DOJ explained that stand-alone behavioral remedies are appropriate “when the parties prove that: (1) a transaction generates significant efficiencies that cannot be achieved without the merger; (2) a structural remedy is not possible; (3) the conduct remedy will completely cure the anticompetitive harm, and (4) the remedy can be enforced effectively.” Notwithstanding this high bar, the second Trump administration already has entered into one stand-alone behavioral remedy. In Omnicom’s acquisition of Interpublic, the FTC approved a settlement with behavioral remedies preventing Omnicom from engaging in collusion or coordination to direct advertising away from media publishers based on ideological viewpoints.
The Omnicom settlement is distinct because it occurs against the backdrop of Trump officials’ oft-repeated concerns about coordinated efforts to limit viewpoint diversity. For this reason, it should not be considered an open door for stand-alone behavioral remedies and, without additional input from the agencies, companies should not expect the agencies to accept stand-alone behavioral remedies as a pathway to approval for otherwise concerning transactions. As Chairman Ferguson wrote in his statement on the Synopsys / Ansys settlement (which contained a license agreement that might be considered a behavioral remedy), “experience teaches that behavioral remedies should be treated with substantial caution.”
c. Trends in Prior Approval and Notice Requirements
Prior approval and notice are two other types of remedies sometimes included in settlement agreements. Prior approval requires that companies obtain the agency’s permission before proceeding with future acquisitions in the same relevant market or a related market. Prior approval provisions typically run for the duration of the consent decree, which is often ten years. Notice requirements require a party to notify the agencies of transactions in certain, identified markets (even if not HSR reportable). While the FTC sometimes imposes prior approval requirements, the DOJ generally avoids them.
Under the Biden administration, the FTC reinstated a broader application of prior approval requirements as a standard remedy in merger settlements. After the announcement of the policy, 15 of 18 Biden-era FTC merger-related consent orders / decrees included prior approval requirements.
The second Trump administration appears willing to use prior approval requirements if needed, but is open to less burdensome notice requirements. In contrast to the Biden administration’s approach, only one of the merger-related consent orders negotiated under President Trump has included a prior notice requirement, and none have included prior approval.
III. Key Takeaways: Impact on Dealmaking
- Consider and account for the possibility of remedies, both during the negotiation process and initial risk assessment, as well as during agency review. In transactions where a remedy may make strategic sense, parties should build in sufficient time early in the dealmaking process to identify relevant overlaps, assess the likelihood of agency concern, determine which relevant overlaps may be appropriate for divestment, and identify potential buyers (or determine that they exist).
- Draft efforts provisions carefully. With the return of remedies as an enforcement option, parties should carefully consider the regulatory efforts provisions of transaction agreements. Parties need to consider revenue or asset value thresholds limiting commitments to divest. While agreements to divest carried little risk in the Biden administration (and were increasingly excluded from merger agreements), dealmakers should carefully consider the implications of divestiture requirements in merger agreements. Further, parties should assess the commercial impact of behavioral remedies like firewalls or licenses when committing to a seller-friendly efforts clauses.
- Account for remedy negotiation and approval in deal timelines. While parties can streamline the merger clearance process by preparing for early engagement on potential remedies, the process of negotiating a remedy with the FTC and DOJ is time consuming. For example, the recent cases settled by the agencies took on average approximately 14 months to reach their settlement.
- Expect less friction in getting deals done. The Trump administration agencies’ willingness to grant early termination and enter into settlement agreements suggests a return to more traditional HSR reviews. While we anticipate that the agencies will continue to closely scrutinize the merits of deals, these recent enforcement actions and procedural changes suggest less friction in getting deals done under the Trump administration.
