In a recent speech, Deputy Assistant Attorney General Bill Rinner of the DOJ Antitrust Division[1] outlined the Division’s approach to merger enforcement in the Trump administration under the leadership of Assistant Attorney General Gail Slater. Rinner emphasized a balanced, law-driven, and transparent merger review process aimed at vigorously enforcing antitrust laws without deterring lawful transactions.
Below are key takeaways from the speech:
- Antitrust Enforcement Grounded in Law, Not Ideology. The Division views itself as an enforcement agency, not a regulator, focused on preventing mergers that harm competition instead of blocking transactions for broader policy goals. Rinner rejected the idea of using merger review as a tool for social policy or regulatory overreach, drawing a clear boundary between antitrust enforcement and broader public interest regulation.
- Procedural Fairness as a Foundation for Enforcement. Rinner emphasized predictability and fairness in merger review, warning that abuse of investigatory tools can undermine due process and public trust. Specific practices the Division will avoid include (1) so-called “Scarlet letter” warnings that implore parties to “close at their own risk;” (2) off-the-books relief or “shadow decrees” neither grounded in the Clayton Act nor transparent to the public; and (3) leveraging the merger review process to impose a “regulatory review tax” or fish for unrelated conduct violations.
- Commitment to Vigorous, Case-Specific Enforcement. The Division will continue to pursue strong enforcement where evidence shows harm, but will treat each transaction on its own merits. Vigorous enforcement means using a scalpel, not a sledgehammer.
- Preference for Structural Remedies. Rinner reaffirmed the DOJ’s institutional preference for structural remedies (e.g., divestitures), citing their effectiveness and clarity. However, he acknowledged that behavioral remedies may supplement structural relief in fact-specific cases. Settlements must be transparent and subject to public oversight, including under the Tunney Act.
- Respect for the Adversarial Process. Rinner encouraged good-faith advocacy from merging parties and their counsel and economists, reaffirming that DOJ values substance over political affiliation or stature in the antitrust bar. He stressed that the DOJ will scrutinize underhanded efforts to conceal documents or abuse privilege claims and will pursue sanctions where necessary.
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Rinner’s remarks signal that the DOJ Antitrust Division does not view dealmaking with inherent suspicion. When necessary, however, the agency will pursue vigorous, case-specific enforcement grounded in procedural fairness and legal principles. Merging parties should expect a transparent review process focused on competitive effects, with a strong preference for – but not absolute adherence to – structural remedies. Companies should align deal strategies accordingly and be prepared for active engagement before the Division.
[1] The Division has broad antitrust enforcement authority and commonly reviews mergers and competitive conduct in industries such as technology, healthcare (often involving health plans), financial services, and industrials.