The most significant change in U.S. antitrust policy since the Trump administration took office can be seen in how regulators are now approaching merger remedies and, for parties to deals under consent orders, prior approval requirements. These changes alter how private capital should assess acquisitions, divestitures and sales of portfolio companies. They are also likely to revive the appetite for mergers—including some that likely would have faced costly and protracted litigation under the previous administration and, as a result, may not have been agreed to in the first place.

From Litigation to Remedies

Antitrust agencies under the previous administration were skeptical that traditional remedies to potential antitrust concerns in a proposed merger could be effective, preferring instead to litigate what they deemed problematic mergers as part of a larger effort to discourage mergers altogether. By contrast, the Trump antitrust agencies have embraced a more deal-friendly approach, favoring settlements that enable more deals to proceed. The Trump antitrust agencies have made it clear that they prefer countering potentially problematic mergers with structural remedies, such as divestitures, rather than with litigation.

This policy shift can be seen in multiple cases during the past summer where remedies were accepted despite significant competitive concerns: Synopsys’ acquisition of Ansys, Hewlett Packard’s acquisition of Juniper Networks, Alimentation Couche-Tard’s (ACT) acquisition of GetGo Café + Market from Giant Eagle, Keysight Technologies’ acquisition of Spirent Communications, and Safran’s acquisition of Collins Aerospace.

However, while the agencies are pro-deal, when a remedy is needed to address potential harms to competition, that remedy must provide robust and effective structural solutions, not superficial fixes. Agencies’ expectations for remedies include:

• Divestitures of Standalone Business Lines. Preferred remedies involve comprehensive divestiture of standalone or discrete business lines or units. Such divestitures should include all tangible and intangible assets that make the divested business viable, incentivized and able to compete vigorously with the seller, including personnel, intellectual property, manufacturing lines, supply chain infrastructure, IT systems, R&D facilities and input agreements with third parties. Behavioral remedies, on the other hand, such as agreeing to limit certain commercial practices or to not discriminate against competitors, may be accepted in limited cases but will remain the exception, as they are often difficult and costly to enforce.

• No Entanglements with the Seller. Generally, the divested business unit should also be free of entanglements from the seller because of the risk that the seller could undermine the business for its own gain after the divestiture. Any transitional ties should be short lived with a defined path to independence.

• Upfront Viable Divestiture Buyer. The agencies expect to be presented upfront with a viable divestiture buyer who has the capability to successfully operate the divested assets (i.e., has the resources, industry expertise and operational readiness necessary to maintain or restore competition in the relevant market). At the same time, the buyer’s acquisition of the divestiture assets must not create new anticompetitive concerns. This combination of requirements typically means that an acceptable buyer is either (i) a strong player in an adjacent or complementary space, (ii) a strong competitor with no current presence in the divested business’s geographic footprint or (iii) a small competitor in the same geography.

• Early Proposals. Agency leadership has been explicit that the time to propose remedies is early in the process and not on the eve of a merger challenge trial. The agencies are less willing to accept 11th-hour divestiture proposals, in part because they cannot vet the sufficiency of the proposal on short notice.

This approach largely restores pre-Biden practices and aligns U.S. policy with international norms, facilitating smoother resolution of global deals. For example, in Synopsys/Ansys, the Federal Trade Commission (FTC) coordinated closely with authorities in the European Union, United Kingdom, Japan and South Korea in the development of the remedy. Similarly, the Antitrust Division of the U.S. Department of Justice (DOJ) and the UK Competition and Markets Authority each announced their acceptance of remedies in Safran/Collins on the same day.

Importantly, the return to remedies means renewed opportunities for private capital looking to expand a portfolio company or acquire a new standalone business. It also provides a broader range of potential acceptable buyers for private capital looking to sell a portfolio company. Staying alert to acquisition activity and engaging with regulators can help secure a position as the preferred divestiture buyer.

From Prior Approval to Prior Notification

Another notable development in the FTC’s approach to mergers can be seen in the agency’s handling of deals subject to an FTC merger enforcement order setting forth conditions under which the deal can proceed. In 2021, the Biden FTC adopted a Policy Statement requiring (i) parties to merger enforcement settlements to obtain “prior approval” for any future transaction affecting any relevant market affected by the merger (or potentially broader markets) for a minimum of 10 years and (ii) divestiture buyers to obtain “prior approval” for any sale of the divested assets for a minimum of 10 years. 

The prior-approval requirement was fraught with problems for acquisitive companies that were party to deals subject to enforcement orders since the requirement applied even to subsequent transactions that were below the HSR filing threshold for premerger notification. Further, the timeline protections set forth in the HSR Act, in which parties were free to close a deal 30 days after filing absent a government response, did not apply, leaving deals to languish in the approval queue. Not surprisingly, these requirements also complicated the process of signing up a divestiture buyer.

Although the FTC has not formally rescinded the 2021 Policy Statement, it appears that the Trump FTC no longer adheres to it. Instead, the prior-approval requirement is being replaced with a less-onerous “prior-notification” requirement. For example, in the June 2025 consent order regarding ACT’s acquisition of 270 retail fuel outlets from Giant Eagle, the FTC required the divestiture of 35 ACT-owned gas stations across Indiana, Ohio and Pennsylvania and that ACT for a period of 10 years would provide written notification to the FTC at least 30 days prior to consummation of any direct or indirect acquisition of any of the gas stations identified in a non-public list and, if the FTC requested additional information, that ACT would not consummate the transaction until 30 days after providing it to the FTC. Similarly, the FTC replaced the prior-approval requirement in the consent order regarding the acquisition of EP Energy by EnCap with a prior-notification requirement, noting that “[a] prior-approval requirement is an extraordinary remedy because it reverses the ordinary operations of the antitrust laws.” 

The apparent reversion to prior notification loosens some of the merger handcuffs placed on dealmakers by the last administration and further indicates that the merger control regulators are keener on seeing deals consummated than deterring their occurrence.

Private Equity Report Fall 2025, Vol 25, No 3