
What to Expect from the Federal Trade Commission Under Andrew Ferguson’s Lead
Summary
Every change of Administration brings a change at the Federal Trade Commission (FTC). The pendulum typically swings slightly back and forth with each change, but for the most part, companies and individuals can expect some consistency in the enforcement of long-established antitrust laws and principles, with changes on the margins. However, former President Biden’s appointment of Lina Khan as FTC Commissioner in 2021 led to a broad swing toward heavy enforcement and broad interpretations of the FTC’s authority to reign in unfair business practices, protect workers, and advance modern economic theories. It appears President Trumps’s appointee — Andrew Ferguson — will swing the pendulum back in the other direction. But, interpreting Ferguson’s dissenting statements since he became a Commissioner, and his recent actions, make any prediction difficult. At this point, we believe Ferguson will apply a stricter interpretation of antitrust laws and the FTC’s authority to enforce them, looking for clear violations on a case-by-case basis that embrace more traditional economic theories of harm. He will also likely lead a Commission that is more willing to accept fixes and behavioral remedies to problematic mergers and acquisitions.
Background
Ferguson has been a Commissioner since April 2024, and after his elevation to FTC Chair last week, Ferguson is tasked with leading enforcement of the nation’s competition and consumer protection laws. A review of Ferguson’s statements while serving as an FTC Commissioner provides insight into how the agency under his leadership will enforce such laws. Ferguson has supported various enforcement actions and objectives, but has been a vocal opponent to the Khan-led FTC in the manner of pursuit of antitrust enforcement, issuing at least 35 dissenting statements both relating to specific cases and general FTC actions.1 For example, he has challenged several rulemaking decisions, dissenting against the Democratic majority and criticizing the FTC for overstepping its authority. While he has hinted at limiting antitrust enforcement, such as pulling back on the FTC’s broad ban on non-compete agreements, Ferguson has expressed his desire to apply pressure on “Big Tech,” vowing to end Big Tech’s alleged vendetta against competition and free speech.
Ferguson, who is the former Virginia solicitor general and former law clerk for Supreme Court Justice Clarence Thomas, inherits ongoing cases and investigations that target Big Tech, pharmacy benefit managers (PBMs), health insurers, and energy companies. It is unlikely that the new FTC Chair and the FTC will initiate an immediate about-face on specific active cases and investigations. Indeed, commentators contend that a Ferguson-led FTC will maintain an aggressive antitrust enforcement posture, but with different priorities. On the other hand, Ferguson has already taken steps to change the FTC, notably: (1) ending the FTC’s diversity, equity and inclusion program; (2) requiring the other Commissioners to quickly vote on a motion to give him the undefined power “‘to modify’ the previous Commission’s strategic plan ‘and to take any other action’ he deems necessary to comply with [the President’s] Executive Orders”2; and (3) removing requests for public comment on five requests for information.3
Industry Specifics
As it relates to Big Tech, Ferguson intends to stand up to Big Tech censorship — a view he said was shaped around Big Tech platforms’ content moderation concerning COVID-19 and the 2020 election, which included the removal of posts under misinformation rules. Ferguson takes a cautious position, however, with regulation of artificial intelligence (AI). He has criticized the FTC in the past for calling on comprehensive AI legislation, noting that a regulatory response is too soon in the early stages of AI development. He also criticized the FTC for referring a complaint related to Snap, Inc.’s use of AI to the Department of Justice, claiming “the complaint’s application of Section 5 of the Federal Trade Commission Act is not only wrong as a matter of statutory interpretation, but is also in direct conflict with the guarantees of the First Amendment.”4 On January 17, 2025, Ferguson issued a concurring and dissenting statement to the Khan-led FTC’s Staff Report on AI Partnerships & Investments 6(b) Study, insisting on a balanced approach to analyzing AI’s effects on competition by stating:
On the one hand, the Commission must not charge headlong to regulate AI. Such regulation could strangle this nascent technology in its cradle, or move the development of the technology to foreign states hostile to our national interests. On the other hand, the Commission must remain a vigilant competition watchman, ensuring that Big Tech incumbents do not control AI innovators in order to blunt any potential competitive threats.5
PBMs and health insurers will likely face continued scrutiny from the incoming FTC Chair. President Trump has publicly voiced his discontent with PBMs, signaling they will remain a focus of the FTC given Ferguson’s position that he is bound to follow the President’s orders.6 In addition, Ferguson has provided cautious support to the FTC’s reports on PBMs. In September 2024, the FTC sued the largest PBMs, accusing them of engaging in illegal rebate programs that drove up the price of insulin.7 The FTC most likely will continue investigating PBM practices as rising healthcare costs and quality of care are a bipartisan issues. On January 14, 2025, Ferguson issued a concurring statement on the FTC’s Second PBM Interim Staff Report, indicating that the FTC “still has more work to do on this Section 6(b) study. I remain committed to bringing it to a conclusion, culminating in a final report.”8 He also supported the study generally with a concurring statement for the First Interim Staff Report.9
The energy industry may be the first to see a return to more traditional levels of antitrust scrutiny of mergers in comparison to the increased scrutiny under Khan’s lead. Prior to Khan’s time as Chair, the FTC seldom challenged horizontal mergers of energy companies considering the companies operate in global markets. Under Khan’s lead, however, the FTC advanced expansive theories of harm, including allegations that a merger would violate Section 7 because the former CEO of the target company, who had previously made public statements inviting competitors to restrict output, would have become a Board member of the acquiring company. Ferguson issued a dissenting statement arguing that there was no evidence that the transaction itself violated Section 7 of the Clayton Act by substantially lessening competition, notwithstanding the potential anticompetitive suggestions of the former CEO. That being said, transactions for which evidence exists indicating effects on consumer energy prices under traditional theories of harm will likely face intense scrutiny given the bipartisan focus on cutting energy costs for consumers.
Conclusion
Ultimately, Ferguson recognizes the FTC’s “traditional role as a cop on the beat,”10 that will enforce the laws passed by Congress. In all likelihood, he will not advance an aggressive rulemaking stance. For example, Ferguson dissented from the FTC’s nationwide ban on noncompete agreements, arguing that the FTC lacked clear authority from Congress for such a ban. The rule has been blocked by a federal district court and is currently on appeal, but Ferguson’s opposition suggests the FTC will not provide further support. Ferguson also has criticized various actions taken by the Khan-led FTC “on their way out the door” and suggested that, under his lead, the FTC will take corrective action. For example, on January 16, 2025, the FTC approved changes to its rule implementing the Children’s Online Privacy Protection Act. Ferguson issued a concurring statement explaining his belief of three problems with the rule, saying: “No one should have any doubt that these issues are the result of the Biden-Harris FTC’s frantic rush to finalize rules on their way out the door. The Commission under President Trump should address these issues and fix the mess that the outgoing majority leaves in its wake.” If there were any doubt the Ferguson plans to make his own mark, in his dissenting statement to the FTC and Department of Justice’s release of Antitrust Guidelines for Business Activities Affecting Workers, he concluded: “The Biden-Harris FTC has no future.”11
While the new-look FTC may be friendlier to mergers and acquisitions in the sense that they will pursue traditional theories, be open to fixes or behavioral remedies, and not push the boundaries of antitrust and economics, bipartisan concerns in Big Tech, healthcare, and energy means that antitrust compliance will remain paramount for companies at least in those sectors. All industries should watch this FTC closely and be ready to pivot. Buchanan’s antitrust team is available to assist companies in navigating the new-look FTC.
- https://www.ftc.gov/about-ftc/biographies/andrew-n-ferguson/speeches-articles-testimonies?page=0
- Statement of Rebecca Slaughter: /https://www.ftc.gov/system/files/ftc_gov/pdf/2025-1-23_rks_statement_motion_delegation.pdf
- Requests for Public Comment allow the FTC to gather information from the public on issues that may be of importance to individuals and businesses. See Request for Public Comments Regarding Protecting Workers from Illegal Business Practices - https://www.regulations.gov/docket/FTC-2025-0008; Request for Public Comments Regarding Small Businesses, Entrepreneurs, and Start-Ups - https://www.regulations.gov/docket/FTC-2025-0010; Request for Public Comments Regarding Mergers and Acquisitions - https://www.regulations.gov/docket/FTC-2025-0009; Request for Public Comments Regarding Predatory Pricing - https://www.regulations.gov/docket/FTC-2025-0011; Request for Public Comments Regarding Surveillance Pricing Practices - https://www.regulations.gov/docket/FTC-2025-0007
- https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-snap-statement.pdf
- https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-ai-6b-statement.pdf
- https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-dei-delegation-statement.pdf
- Commissioner Ferguson recused himself from the vote on the complaint and did not issue any statement. https://www.ftc.gov/news-events/news/press-releases/2024/09/ftc-sues-prescription-drug-middlemen-artificially-inflating-insulin-drug-prices
- https://www.ftc.gov/system/files/ftc_gov/pdf/pbm-6b-second-interim-staff-report-ferguson-concurrence-final.pdf
- https://www.ftc.gov/system/files/ftc_gov/pdf/Ferguson-Statement-Pharmacy-Benefit-Managers-Report.pdf
- https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-dissent-2024-annual-regulatory-plan-agenda.pdf
- https://www.ftc.gov/system/files/ftc_gov/pdf/at-guidelines-for-business-activities-affecting-workers-ferguson-holyoak-dissent.pdf