Will retribution, like that seen with U.S. law firms, play a role in the federal government’s assessment of mergers and acquisitions? 

It would have created the largest supermarket conglomerate in the country at a time when the price of groceries appears to be a deciding factor in whether America remains a democratic republic or morphs into a kleptocratic theocratic oligarchic authoritarian regime. Or whatever we want to call it. My current go-to is “shit show.” 

In October 2022, Kroger and Albertsons – two of the nation’s largest chains – announced their intention to merge into what could have been called Grocery Goliath Incorporated. The deal quickly attracted the attention of antitrust enforcers, including the Federal Trade Commission and various state attorneys general, who sued to stop it in January 2024. Facing the specter of trial after failing to get the suits dismissed, the companies dropped plans for their $24.6 billion deal in December 2024.  

The federal case was brought during the Biden administration under leadership of Chair Lina Khan, who came into the national spotlight with a paper penned during her third year at Yale Law School titled “Amazon’s Antitrust Paradox.” The premise of the piece was that today’s antitrust law framework, with its focus on consumer prices, is ill-suited to address the anticompetitive effects of platform-based businesses like Amazon. The same could be said for Meta and Alphabet and others.  

Viewed as a fresh-thinking visionary by the left and an unqualified “antitrust hipster” by the right, the paper and Khan’s subsequent work captured the attention of President Biden who appointed her to the commission and later as head of the whole shebang. But — and this will only be news to anyone lucky enough to be opening their peepers after a five-month nap — the FTC is very different today.  

When President Trump took office the Commission shifted to a Republican majority, with two of the five commissioners being Democrats, one of whom was appointed to a Democratic seat by President Trump during his first term. That is how it is done. Historically, the five-member panel was to have no more than three commissioners from the same party. Much like the rest of the government, though, some of the commissioners’ opinions had become increasingly infused with partisan spices.  

Now, with Trump’s early firing of Alvaro Bedoya and Rebecca Kelly Slaughter, both Democratic commissioners who were still serving their seven-year terms, the Commission no longer has its historical balance. (I would say it now has a “hysterical imbalance,” but that would be sophomoric wordplay, although that is my sandbox.) And that is new. Slaughter was appointed in 2018 during Trump’s first term; Bedoya was appointed in 2022 by President Biden. Both are planning to sue and are confident they will be reinstated. “The President illegally fired me from my position as a Federal Trade Commissioner,” Slaughter said, “violating the plain language of a statute and clear Supreme Court precedent.” 

Bedoya and Slaughter appeared recently on the podcast “On with Kara Swisher,” where they explained the “immense political pressure” they were under regarding the Kroger-Albertsons deal. Some politicians urged them to block it, but many said to allow it, including some Democrats. Bedoya noted evidence of the harm the merger would do. He recalled a Kroger executive saying under oath that the company was already emboldened enough to mark up milk and eggs well above inflation (it always comes back to eggs). The Commission ultimately voted to block the deal because it would decrease competition. That’s how it is done.  

“My concern,” Bedoya told Swisher, “is what’s going to happen with the next mega grocery merger? None of that stuff is going to matter. Higher prices, lower wages, doesn’t matter. What’s going to matter is the donors … That is what I’m deathly afraid of happening at the FTC, and it’s going to screw over regular people … not billionaires.”  

“And it’s not just Kroger,” Slaughter added. “The amount of political lobbying and pressure around, for example, the Microsoft Activision deal was outrageous.” She said political pressure is nothing new, but, “Up to this point, that had not come from the White House …”    

Put differently, the Commission no longer has a minority point of view or the independence Congress intended.

Democrats’ “Assault on American Businesses”  

Trump selected Mark Meador to what was still the fifth seat on the FTC, creating the body’s Republican majority. Meador is considered to be relatively moderate, even though decidedly old-school conservative. He has expressed support for underused and unorthodox enforcement tactics, such as reviving the Robinson-Patman Act to target discriminatory pricing. He is a veteran antitrust attorney with experience in private practice, the FTC, the DOJ’s Antitrust Division, and was an advisor to Senator Mike Lee (R-UT) on antitrust matters. He will be on board to pursue aggressive antitrust enforcement against Big Tech. He even drafted legislation to break up Google’s digital advertising business.  

But no one would describe Andrew Ferguson, Trump’s pick to succeed Chair Khan, as “relatively moderate.” To be sure, his appointment pleases right-leaning observers and is predicted by some to be less inclined to challenge deals or litigate against anticompetitive conduct, although recent activity suggests more of a status quo. But the year is young.   

During the Biden and Khan years Andrew Ferguson frequently dissented in acrid partisan prose. “The Democratic majority’s four-year regulatory assault on American businesses has hindered economic growth and increased costs to the American consumer. The American people resoundingly rejected this approach at the ballot box in November,” he wrote in one case.  

He strongly opposed the ban on non-compete agreements, but on grounds of administrative authority. “I am sympathetic to the policy embodied in the Final Rule [banning non-competes]. Anglo-American law has regarded noncompete agreements with deep suspicion for centuries. They cut against the grain of our ancient common-law tradition protecting every man’s right to ply his trade, and may in some circumstances undermine competition and innovation. But beginning with policy puts the cart before the horse. Lawmaking by the administrative state sits uncomfortably in a democracy. Our Constitution assigns Congress the legislative power because Congress answers to the people for its choices. We are not a legislature; we are an administrative agency wielding only the power lawfully conferred on us by Congress.”  

Anyone reading tea leaves will see his use of “administrative state” as a partisan belief that the government is being run by bureaucrats who are simultaneously inept lackadaisical buffoons and diabolically gifted political plants hell-bent on manifesting their own nanny-state agendas.   

Andrew Ferguson’s record may suggest a higher threshold for challenging deals and litigating against allegedly anticompetitive conduct, but said the following after the Bedoya and Slaughter terminations: “President Donald J. Trump is the head of the executive branch and is vested with all of the executive power in our government. I have no doubts about his constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government. The Federal Trade Commission will continue its tireless work to protect consumers, lower prices, and police anticompetitive behavior.” (I assume, although quizzically, that he used the phrase “democratic accountability” with a straight face.)

On the pro-competition side of the scorecard, the FTC recently issued a statement reaffirming its opposition to an Indiana hospital merger and has sued to block the merger of two medical device companies which the Commission said would harm competition in the market for hydrophilic coatings used in the manufacture of catheters and guidewires. So, there is, at least, that.  

First, Executive Order All the Lawyers 

A scan through FTC statements and press releases is a bit like watching ping-pong, as focus moves swiftly from fighting monopolies to fighting Democrats and – a new target of today’s executive branch – attorneys and law firms viewed by the administration as anti-Trump. In fact, the entire profession is considered suspect.  

In a statement about the American Bar Association, Ferguson explained why he was banning FTC appointments from participating in the organization.  

“[The ABA] advances radical left-wing causes and promotes the business interests of Big Tech. If that ceased to be the case, perhaps senior government officials could once again participate in ABA events. But even after conservatives have for years tried to work within the ABA to make it more balanced, the organization has become only more left-wing and radical. The FTC’s senior leadership should not lend a patina of nonpartisan legitimacy to an organization guided by the principles of the Democrat [sic] Party and the priorities of Big Tech. Rather, we will focus on what is important: Fighting monopolies, promoting competition and economic liberty, protecting consumers from fraud and unfairness, and helping President Trump usher in America’s Golden Age.”  

I don’t recall such far-out characterizations and juvenile barbs in official statements. (I’m not a political historian so I welcome insights on the subject.) Politics aside, the use of “Democrat” as an adjective offends the grammar enthusiast in me. It’s the Democratic Party. Democratic. Democratic Party. Also, while “common law” is “Anglo-American law,” the latter is not a phrase I’ve seen used often in my reading of case law for four decades. Common law is more common.

As for the Democrats supporting Big Tech, the legal actions taken against them under Democratic leadership speak for themselves.

One more thing. Ferguson said of the ABA that he does not want to “lend a patina of nonpartisan legitimacy” to a “Democrat” organization.  Mr. Chair, you do not have such a patina to loan. Neither a borrower of a patina or a lender of a patina be, especially when you are fresh out of patina. Can I interest you in a petunia of bipartisanship?   

This and President Trump’s recent threats against several of the nation’s largest law firms for representing his political opponents are severely concerning. Bravo to WilmerHale, Jenner & Block and Perkins Coie for fighting the fight. (And now he is going after, Susman Godfrey, the firm that successfully advanced the libel case against FoxNEWS on behalf of Dominion Voting Systems, scoring a $788 million settlement). Without law firms, we will be lawless. I can’t judge Paul Weiss, Skadden Arps, Milbank and Willkie Farr for what can only be characterized as buckling, but I know the world is more complicated than that. I’ve never run a major law firm that has represented major clients or taken up globally consequential matters. If a firm goes under, what good is it? But I do know that a united front has a better chance than a fractured one and, in the long run, if the sun sets on our democracy, we will have little use for law firms as we know them. After all, united is kind of what we do in America, even if begrudgingly. It’s in our name and everything. 

Chair Ferguson has also been vocal about what he sees as Big Tech’s censorship of conservative views and the Democrats’ “trans agenda,” although I will say with zero research that Republicans talk much more about this sliver of the population than any Democrat. Ferguson authored a chapter of The Heritage Foundation’s Project 2025, widely seen (although falsely disavowed during the election) as the roadmap for President Trump’s campaign to seize unprecedented power over the federal government and eliminate big parts of it.  

Axes and Pain Killers 

While there is evidence that today’s FTC will carry on its pro-markets mission in areas like healthcare, we can expect sharper attacks on Big Tech. That is, unless the “tech bro” CEOs succeed in getting along with the new administration. Bedoya shared with Kara Swisher that his last public statement as commissioner included criticism of Amazon CEO Jeff Bezos for working his people so hard that they had to install pain-killer dispensers in their warehouses. And, who is the new head of the Occupational Safety & Health Administration just appointed by President Trump? A former Amazon executive. You may take your pain-killer now. 

The question today is whether efforts to rein in lopsided corporate power will be driven solely by numbers – e.g., the number of players in a market, market shares, price increases, new entrants – or, as the attack on law firms demonstrates, by axes to grind. The latter feels inevitable. Our president has enough axes to fill all the bathrooms and all the ballrooms at Mar-a-Lago. No need to order them from Amazon. They are DIY. And, to put a bow on this, what if one of the president’s least favorite law firms is working on a big merger? You know it is going to happen.  

Article updated on 4/11/2025 at 5:30 p.m.