Yearly Archives: 2026

Antitrust – Just when you thought the going was good…. Early in Trump’s tenure, his populist picks to run the DOJ and FTC appeared ready to horseshoe themselves into where Biden’s progressives left off. Their public pronouncements frequently echoed the themes of the Biden enforcers, and a smiling Lina Khan appeared jointly with Steve Bannon. The agencies even embraced the new HSR rules and 2023 merger guidelines, both of which were promulgated under the Biden regime. There was though some hope that the Trump agencies would have more procedural discipline than Lina Khan and Jonathan Kanter, who had regularly used “sand in the gears” tactics to delay and often litigate to block deals, even knowing they would most likely lose on the merits. The Khan/Kanter strategy, which often worked, was premised on the hope that one of the merger parties would try to back out or just not have the wherewithal to keep fighting during the 12+ months following the signing of the definitive agreement that it takes for the merger parties to prevail before a judge in their effort to defeat a US antitrust agency’s challenge to their merger. The anticipated procedural discipline materialized, and as 2025 wore on, the Administration’s emphasis on economic growth gained ascendancy. By the end of 2025 we had crossed into new territory where dealmakers declare that  “We can cut just a deal with the agency,” and “We’ve got a White House strategy,” when it comes to US antitrust approval of M&A. Thus far, this idea that you can either cut a deal with the DOJ or FTC or get the Oval Office to green-light your deal has fed transformational M&A fever. In 2026, look out for this perception to change dramatically. The unpredictability of reliance on “The White House strategy,” the rise of blue state antitrust regulators and new state antitrust review processes, the pushback by frontline civil servants within the antitrust agencies against politicization, ill-advised hiring by merger parties of lobbyists who attract unhelpful attention to mergers that do not merit attention, and anticipation of mid-term elections that will give rise to at least one Democrat-controlled house of Congress where hearings will be held to investigate big mergers while they are pending, will all combine, by the end of 2026, to put a damper on the current misperception in boardrooms that “anything goes” when it comes to US antitrust review of M&A. Meanwhile, despite statements from Europe and the UK that they want to facilitate the growth of stronger and larger players through consolidation, the regulators on the Continent and in the UK may nonetheless create headwinds for cross-border M&A due to their reduced appetite for greenlighting mergers where the combined company will not necessarily be all that local in culture, headquarters, leadership, branding, or talent. The results will be an even further uptick during 2026 in the intensity of negotiations of regulatory risk allocations, pressure for ever higher regulatory reverse termination fees, and extended outside dates.