Four experts predict the trends that will define United States antitrust and competition in 2026.
Private Equity and Antitrust: From Disclosure to Liability
Aslihan Asil, Duke University
Antitrust scrutiny of private equity (PE) in 2026 is likely to center on two unresolved issues: the detection of PE-backed acquisitions under the new disclosure regime and the potential antitrust liability of PE firms for those acquisitions.
First, recent changes to the Hart-Scott-Rodino Act’s Premerger Notification rules substantially expand disclosure requirements without altering the size-based reporting exemptions. The new rules require parties to identify minority shareholders, certain limited partners, and related entities, thereby revealing relationships among transacting parties, PE sponsors, and their affiliates and associates. They also require information on competitive overlaps and on acquisitions completed within the prior five years. Taken together, these requirements may enhance the government’s ability to assess not only the competitive effects of the transaction under review, but also the cumulative effects of a broader acquisition strategy.
These rules took effect in February 2025, making 2026 a critical test of their impact. Yet, because the amendments leave existing notification exemptions intact—and because prior research shows that below-threshold acquisitions can pose significant competitive risk—potentially anticompetitive serial acquisitions may still avoid antitrust scrutiny even under the revised disclosure regime.
Second, and independently, legal challenges to PE-backed acquisitions raise the question of whether PE firms may themselves be held liable for portfolio companies’ acquisitions. Resolving this issue requires courts to revisit core antitrust doctrines—most notably whether PE firms and their portfolio companies constitute a single entity under the Copperweld doctrine.
This inquiry cuts both ways. Treating the PE firm and its portfolio company as a single entity would shield the firm from conspiracy liability based on its coordination with the portfolio company. At the same time, extending Copperweld to attribute a portfolio company’s anticompetitive conduct to the firm would expose the PE firm to liability as part of a single economic unit. The Ninth and Tenth Circuit courts have taken steps in this direction in other contexts, and district courts in Texas and Tennessee have begun to confront these questions in PE cases. In addition, the involvement of a third party may still give rise to conspiracy liability for the PE firm, even if the firm and its portfolio company are deemed a single entity under Copperweld. As similar challenges arise in other jurisdictions, courts may diverge in their approaches, with significant financial consequences for PE firms and private plaintiffs alike.
These doctrinal questions also intersect with the antitrust statute of limitations. Antitrust claims are generally subject to a four-year limitations period running from the act that injures the plaintiff, though the period may be extended for continuing violations. A central issue is whether, and to what extent, a PE firm treated as part of a single economic unit must itself engage in anticompetitive conduct within the limitations period to revive an otherwise time-barred claim. Where tolling requires independent action by the PE firm, the firm may be deemed a single entity with its portfolio company—thereby precluding conspiracy liability—while simultaneously avoiding liability for the portfolio company’s anticompetitive conduct that occurred outside the limitations period.
Because the Premerger Notification Program’s size-based thresholds often prevent early detection of serial acquisitions, delays between completion, discovery, and challenge are common. As a result, the statute of limitations has been—and may remain—outcome-determinative in assessing PE firm liability for anticompetitive acquisitions.
Overall, 2026 will be a year to watch—both for the impact of expanded disclosures under the revised notification program and for courts’ interpretation of foundational antitrust doctrine in PE-backed acquisitions.
The FTC and the Roberts Court
Andrew I. Gavil, Howard University
The fate of the Federal Trade Commission is in the hands of the Supreme Court. Trump v Slaughter has been “submitted,” and the Court will now decide whether the “for cause” limitations on the president’s authority to remove FTC commissioners found in Section 1 of the FTC Act are unconstitutional because they impair the executive’s ability to “faithfully execute” the laws of the United States. In a direct challenge to Humphrey’s Executor v. United States, the administration has argued that limiting the president’s authority to remove a commissioner from office to instances of “inefficiency, neglect of duty, or malfeasance” affords the president insufficient control over the FTC. If the president is to be fully accountable to the electorate, no degree of political independence or autonomy for those who exercise “executive” functions can be tolerated. They must all be terminable “at will.”
The administration concedes that the Constitution does not explicitly address the president’s removal power. Instead, invoking principles associated with the unitary executive theory (UET), it argues that a plenary removal power should be inferred from Article II’s “vesting” and “take care” clauses. It further argues that it flows necessarily from principles of separation of powers and democratic accountability, as well as “original” understanding. Commissioner Rebecca Slaughter, one of the two Democratic commissioners the president purported to remove early into his second administration, responded that the protections against removal are consistent with the text, structure, and history of the Constitution. They support, rather than undermine, separation of powers, and have been used since the founding of the country. She further argued that “for cause” protections are supported by precedent, and that the case has not been made for ignoring stare decisis to overrule Humphrey’s Executor.
The administration’s reliance on the UET is at best debatable. A noted originalist has questioned its validity and pedigree as it relates to the removal power. A group of previously elected and appointed Republicans have argued as amici supporting Slaughter that an originalist analysis supports the constitutionality of “for cause” limitations on removal. And, as Slaughter has argued, the administration’s myopic emphasis on Article II ignores Article I’s grant of broad powers to Congress, including especially the “necessary and proper” clause. A bipartisan group of former FTC chairs added that the “independence” of non-chair commissioners has been exaggerated and that current presidential controls on the FTC’s agenda are already substantial.
The justices appeared to be sharply divided during the oral argument on December 8, 2025. Justice Elena Kagan cautioned that adoption of the administration’s position would result in “massive, uncontrolled, unchecked power in the hands of the President.” Justice Clarence Thomas seemed far more concerned that a reaffirmation of Humphrey’s Executor would encourage Congress to convert agencies with single administrators, including cabinet-level departments, to multi-member, bipartisan agencies as a means of limiting the president’s ability to direct policy, even though in the 90 years since the Court decided Humphrey’s Executor Congress has never attempted to do so and, in any event, such a move could be vetoed by the president. The questioning reflected differing views of which branch threatened separation of powers the most and of history.
A loss for Slaughter would mean the end of the FTC as it has operated since 1915. As is evident from the behavior of the current chair, who promptly endorsed the administration’s authority to dismiss Commissioners Slaughter and Alvaro Bedoya and has pursued cases and policies that reflect the president’s priorities, the values of deliberation and dissent would be sacrificed, economic uncertainty would increase, and economic policy stability would be put at risk.
The FTC, of course, will not be the only agency affected by the Court’s decision. Although the ultimate consequences will depend on the breadth of the Court’s reasoning and whether the case produces a diversity of views, a broad embrace of the unqualified UET, as advocated by the administration, would redefine the balance of power between Congress and the executive. It would also insert the Court into a highly charged and political debate about the respective roles of each of the three branches in determining the structure of the federal government.
The Perils of Anti-Merger Law as Deal-Making Policy
Daniel A. Hanley, Open Markets Institute
In its first year, the second Trump Administration has used Section 7 of the Clayton Act, the primary legal provision restricting mergers, as a government invitation to “make a deal.” Since the start of the president’s second term, the Department of Justice has initiated only four merger enforcement actions, all of which were settled. The Federal Trade Commission has been somewhat more aggressive, issuing nine enforcement actions consisting of four issued complaints and five settlements.
Of course, the pronounced use of settlements is not new, as they, with behavioral or structural conditions, have been the common resolution in merger challenges over the past 40 years. But this administration has supercharged the “dealmaking” aspect of the law by making it the forefront of their enforcement policy. It has also allegedly made the process openly corrupt.
For example, the White House allegedly overrode the recommendations of Assistant Attorney General Gail Slater to block the merger between Hewlett Packard Enterprise and Juniper Networks at the behest of the firms’ lobbyists. According to then-Principal Deputy Assistant Attorney General Roger Alford, “corrupt lobbyists” used their “money, power, relationships and influence” to pressure administration officials to structure a grossly inadequate settlement specifically to facilitate the merger (a settlement now being challenged by several states). Additionally, the president appears directly involved in facilitating the acquisition of Warner Bros. Discovery by either Paramount Skydance or Netflix—a deal that would most likely be dead on arrival in a courtroom under present anti-merger law. Both Paramount and Netflix are now summoning as many loyalists to the president as possible to persuade him to approve the merger. Just last week, the Wall Street Journal reported that one of the largest real estate brokerage firms in the United States avoided a detailed merger investigation simply by appealing to DOJ leadership above Slater, despite her objections.
Congress enacted Section 7 not to facilitate mergers, but to stop the “rising tide of economic concentration in the American economy.” Unfortunately, over the next year, I predict not much will change with the administration’s current approach. Yet, even if Slater and FTC Chair Andrew Ferguson decide to become zealous enforcers of Section 7 tomorrow, they won’t be able to materially slow the frenetic pace of merger activity. The problem is that the law provides too much enforcement discretion, including opportunities for corruption, and too little deterrence. Even an aggressive enforcement agency needs to spend many months robustly establishing the relevant markets, determining market shares, and evaluating a transaction’s competitive effects before going to court to stop a merger.
To reduce the opportunity for shady backroom deals and deter merger activity, legislatures should set clear rules. The legality of a merger should not be determined by the arbitrary opinion of judges, the subjective feelings or nefarious motives of any commander in chief, or even months-long, painstaking examination by enforcers.
As my colleagues at the Open Markets Institute and I have repeatedly advocated, Congress or state legislatures should proscribe all mergers above a specific financial threshold. A metric could include revenue, assets, or transaction size, which simply says that any merger worth over $X amount is automatically unlawful and any merger under $X is lawful. No discretion is allowed and no litigation required.
This idea is neither radical nor unfamiliar. Politicians have previously proposed similar laws. During the 1960s, the FTC took a similar bright-lines approach regarding vertical mergers and the number of barrels purchased by the acquired firm in the cement industry and the combined assets of grocery product manufacturing. Between 1967 and 1972, the FTC’s policy led to mergers in these areas declining by over 60 percent. In fact, the Temporary National Economic Committee supported this approach in the 1940s in their comprehensive review of the antitrust laws to address the “vexatious limitations” of the existing law. Above all, this policy would create absolute certainty about what the law is and, as the historical record shows, encourage corporate operations to hire workers, expand productive capacity, and invest in research and development. If Congress is serious about discouraging mergers, promoting growth through internal expansion, and limiting the scope for executive branch discretion and opportunities for corruption, bright lines are the only way to minimize discretion and uncertainty.
Antitrust Will Test Its Remit To Regulate the Marketplace of Ideas
Madhavi Singh, Yale University Thurman Arnold Project
One of the most consequential developments in United States antitrust in 2025, and one likely to intensify in 2026, is the growing effort to use antitrust law to regulate the marketplace of ideas. Recent cases and regulatory initiatives signal that antitrust and the First Amendment might be on a collision course.
The most visible development is the Federal Trade Commission’s public inquiry into whether content moderation practices by dominant technology platforms can violate antitrust laws. The inquiry stems from the idea that decisions to demote, label, or remove content are not merely editorial judgments, but potentially exclusionary conduct that distorts competition over ideas. That framing has been reinforced by public statements from FTC Chair Andrew Ferguson and Department of Justice Assistant Attorney General Gail Slater. The chief antitrust enforcers have suggested that antitrust law may be used to address perceived censorship of conservative viewpoints as an anticompetitive reduction in output or product quality, particularly where it results from concerted action or the exercise of monopoly power.
Private litigation is already testing these theories. X (formerly Twitter) has sued an advertiser association and several major brands, alleging that the advertiser boycott of their platform—prompted by concerns that ads were appearing next to antisemitic or other offensive content—constitute an unlawful group boycott.
Separately, Robert F. Kennedy Jr.’s nonprofit, Children’s Health Defense, brought a Sherman Act suit against the Trusted News Initiative (TNI), a consortium that includes major media organizations (such as the BBC, Reuters, and the Washington Post) as well as technology platforms (such as Google, Meta, Microsoft, and X). The complaint alleges that coordinated efforts by TNI to label, downrank, or remove “misinformation,” especially pertaining to Covid-19 and the Hunter Biden laptop controversy, amounted to an anticompetitive concerted refusal to deal. Notably, the DOJ has filed a statement of interest supporting the plaintiff and arguing that the Sherman Act protects competition across all dimensions, including non-price competition, and that restraints limiting the type or quality of information available to consumers falls within its prohibitions.
The same logic is beginning to appear in merger review. In 2025, when Omnicom sought to acquire rival advertising firm Interpublic Group, the FTC’s settlement order prohibited the combined firm from steering advertising dollars away from publishers based on political or ideological viewpoints. Further trends of consolidation in media and entertainment, illustrated by the ongoing saga between Paramount, Netflix and Warner Bros. Discovery, raises questions about whether increased concentration can narrow the range of ideas reaching the public, and whether merger review should account for that risk (alongside other traditional market share based assessments).
Taken together, these developments force a reckoning with an underexplored boundary in U.S. law: the intersection of antitrust and the First Amendment. If antitrust is deployed to require firms to compete on viewpoint diversity, it raises hard questions about compelled speech and the constitutional limits on using competition law to reshape public discourse. At the same time, efforts to characterize advertiser boycotts and content moderation agreements as unlawful concerted refusal to deal implicate the extent to which corporate conduct is protected expressive activity (especially after Moody v. NetChoice) rather than purely commercial behavior subject to antitrust liability. As these cases proceed through the courts, the FTC’s inquiry yields clearer conclusions, and regulators confront these mergers, 2026 will test how far antitrust can and should go in regulating the marketplace of ideas without eroding core First Amendment protections.
Authors’ Disclosures: Andrew Gavil is Senior of Counsel at Crowell & Moring LLP. The views expressed here are his own and do not reflect the views or interests of either the firm or Howard University. Neither has he received any financial support in connection with the preparation of this article. Daniel Hanley works for the Open Markets Institute, which receives funding from foundations such as the Lumpkin Family Foundation, William and Flora Hewlett Foundation, Wallace Global Fund, Omidyar Network, and Open Society Foundations. Asil and Singh report no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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