Key Takeaways
- • Antitrust authorities under the Trump administration have abandoned the Biden-era policy of targeting private equity firms and transactions as a category, according to an opinion piece by Bloomberg Law authors Deborah Garza and Nathaniel J. Harris of Rule Garza Howley.
- • The FTC's sole challenged PE transaction, GTCR's acquisition of Surmodics, was a traditional horizontal merger challenge; the FTC lost its bid for a preliminary injunction on Nov. 10, 2025, and GTCR closed the deal on Nov. 21, 2025.
- • The FTC and DOJ ended the Biden-era suspension of HSR early termination and resumed approving divestiture remedies, with seven merger investigations resolved via divestitures since Trump took office.
- • Three Biden-era rules remain in place and continue to affect PE filers: the HSR form overhaul, the 2023 Merger Guidelines, and the 2022 FTC Section 5 policy statement.
- • The authors caution that PE firms should expect the same enforcement scrutiny as other firms, not a free pass, and note residual risk around the FTC's unresolved Section 8 theory for non-corporate entities.
Summary
According to the authors, PE firms faced unprecedented antitrust scrutiny under the Biden administration, which treated the PE business model itself as a threat to competitive markets. Former FTC Chair Lina Khan characterized PE strategies as "extractive," and enforcers targeted serial acquisitions and interlocking directorates. The Biden agencies reworked the 2010 Horizontal Merger Guidelines, issued a Section 5 policy statement aimed at PE transactions, overhauled the Hart-Scott-Rodino (HSR) form, and suspended early termination under the HSR Act, which the authors say delayed many non-problematic deals.
The Trump administration has moved away from that approach. Andrew Ferguson, then an FTC commissioner and now chairman, signaled the shift in a statement issued on the final business day of the Biden administration on the Welsh Carson settlement, calling the matter a "routine law-enforcement matter" and stating there was "no reason . . . to single out private equity for special treatment." The administration's only PE-related merger challenge, GTCR's acquisition of Surmodics, rested on a traditional unilateral-effects theory without allegations about rollups or PE ownership. The FTC lost its preliminary injunction effort on Nov. 10, 2025, and the deal closed Nov. 21, 2025.
Procedurally, the FTC and DOJ ended the early termination suspension, and the DOJ approved PE or PE-backed buyers of divestiture assets in UnitedHealth's acquisition of Amedisys. The authors describe this as a reversal on merger remedies, noting that the agencies have resolved seven merger investigations through divestitures since January 2025.
Some Biden-era policies persist, including the HSR form, the 2023 Merger Guidelines and the 2022 Section 5 policy statement, which the authors say still weigh on PE firms. Director interlock enforcement has been limited to a September 2025 FTC announcement that three Sevita Health board members stepped down to avoid an unlawful interlock, with no complaint or consent order. The authors also note that in September 2025 the commission denied a petition to reopen its 2023 Quantum/EQT order, but did not address the Biden-era Section 8 theory for non-corporate entities, which they see as leaving some residual risk.
The authors conclude that the anti-PE rhetoric has not carried into the second Trump administration, but that PE firms should still expect the same enforcement as other investors.
The Trump administration has moved away from that approach. Andrew Ferguson, then an FTC commissioner and now chairman, signaled the shift in a statement issued on the final business day of the Biden administration on the Welsh Carson settlement, calling the matter a "routine law-enforcement matter" and stating there was "no reason . . . to single out private equity for special treatment." The administration's only PE-related merger challenge, GTCR's acquisition of Surmodics, rested on a traditional unilateral-effects theory without allegations about rollups or PE ownership. The FTC lost its preliminary injunction effort on Nov. 10, 2025, and the deal closed Nov. 21, 2025.
Procedurally, the FTC and DOJ ended the early termination suspension, and the DOJ approved PE or PE-backed buyers of divestiture assets in UnitedHealth's acquisition of Amedisys. The authors describe this as a reversal on merger remedies, noting that the agencies have resolved seven merger investigations through divestitures since January 2025.
Some Biden-era policies persist, including the HSR form, the 2023 Merger Guidelines and the 2022 Section 5 policy statement, which the authors say still weigh on PE firms. Director interlock enforcement has been limited to a September 2025 FTC announcement that three Sevita Health board members stepped down to avoid an unlawful interlock, with no complaint or consent order. The authors also note that in September 2025 the commission denied a petition to reopen its 2023 Quantum/EQT order, but did not address the Biden-era Section 8 theory for non-corporate entities, which they see as leaving some residual risk.
The authors conclude that the anti-PE rhetoric has not carried into the second Trump administration, but that PE firms should still expect the same enforcement as other investors.
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