theantitrustsource
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www.antitrustsource.com
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May 2025
1
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David J. Gonen
is a partner at Katten
Muchin Rosenman LLP
in Washington, DC.
The views expressed
are the author’s own
and do not necessarily
reflect those of the firm
or any of its clients.
Merger Challenges Protecting Nascent and Increased
Future Competition Under the First Trump Administration
David J. Gonen
Introduction
The Federal Trade Commission and the Department of Justice were particularly active during the
first Trump administration in using two tools to preserve competition from new, innovative, and
growing firms. First, the agencies employed Section 2 of the Sherman Act to challenge several
mergers in which an alleged monopolist acquired or sought to acquire a nascent threat. Two of
those challenges resulted in the parties abandoning the transactions. But the FTC’s monopoliza-
tion suit against Facebook (now Meta) over its acquisitions of Instagram and WhatsApp contin-
ued on through the Biden administration, as the company vigorously defended its consummated
acquisitions in litigation. The case is now back in the hands of the second Trump administration,
and the trial is currently underway. Second, in several merger challenges under Section 7 of the
Clayton Act, the agencies sought to bolster their prima facie case by offering evidence that the
target would compete more strongly in the future than its market share suggested. Though courts
were receptive to these arguments, those cases ultimately rose or fell based on whether the gov-
ernment successfully defined a market and obtained a concentration-based presumption. These
two lines of cases show that the agencies recognize the important role that pipeline firms and
innovation play across industries.
Section 2 Cases Involving Acquisitions of Nascent Threats
The agencies brought three cases under the first Trump administration using Section 2 to chal-
lenge an alleged monopolist’s acquisition of a nascent competitive threat: Illumina/PacBio, Visa/
Plaid, and Facebook/Instagram & WhatsApp.1 This strategy has been successful for the govern-
ment. Parties have largely declined to litigate these challenges, and in Facebook the FTC obtained
a summary judgment ruling that solidified Section 2 as a merger enforcement tool.
Illumina/PacBio. In 2019, the FTC initiated an administrative proceeding seeking to block
Illumina Inc.’s proposed acquisition of Pacific Biosciences of California, Inc. Per the complaint,
Illumina possessed a greater than 90% share of next-generation DNA sequencing (NGS) systems,
1 While the first Trump administration was particularly active in this area, the agencies’ use of Section 2 to challenge alleged monopolists
acquiring nascent threats spans administrations. The Obama administration brought two such cases, and the Biden administration pur-
sued one as well. All three cases resulted in abandonment or divestiture. Compl., Thoratec Corporation, and HeartWare International,
Inc., Docket No. 9339 (FTC July 30, 2009), https://www.ftc.gov/sites/default/files/documents/cases/2009/07/090730thorateadminccmpt.
pdf; Compl., FTC v. Mallinckrodt ARD Inc. (f/k/a Questcor Pharmaceuticals, Inc.), No. 1:17-cv-00120 (D.D.C. Jan. 18, 2017), https://
www.ftc.gov/system/files/documents/cases/170118mallinckrodt_complaint_public.pdf; Compl., Sanofi, Genzyme Corporation, and Maze
Therapeutics, Inc., Docket No. 9422 (FTC Dec. 11, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/d9422_sanofi_maze_part_3_com-
plaint_public_redacted.pdf.
