DAAG Bill Rinner Delivers Remarks to the George Washington University Competition and Innovation Lab Conference Regarding Merger Review and Enforcement

Thank you for inviting me to join you today. I’m grateful for the opportunity, and honored to be among you all. For those of you who don’t know me, this is my second time serving at the Antitrust Division. I want to thank Assistant Attorney General Gail Slater for the opportunity to serve again alongside the tremendously talented attorneys, economists, and staff in the leadership and career ranks of the Division. My prior experience and former colleagues — some of whom I have the pleasure of serving alongside again — helped shape me into the attorney I am today.

On a personal note, I also want to acknowledge and thank my family for their support. Though I currently live in Brooklyn, behind my office desk stands the flag of the State of Colorado, where I grew up, and where much of my family still lives. The flag is my daily reminder of where I came from and the many sacrifices my parents made to support their kids.

The topic of my speech is merger enforcement — in particular, how we intend to operate the Division’s processes under AAG Slater to ensure fair and vigorous enforcement, and what we expect of parties appearing before us.

In her opening speech at Notre Dame, my alma mater, AAG Slater articulated the conservative case for vigorous antitrust enforcement. She noted that accomplishing this objective requires “healthy respect for textualism, originalism, and precedent grounded in a commitment to robust and fair law enforcement.”[1] I want to unpack these concepts further and provide some insight into how we will handle merger review to ensure procedural fairness and robust enforcement.

As a matter of first principles, our civil merger enforcement program operates out of respect for the statutory role of the Antitrust Division as a law enforcer protecting free markets, not as a regulator. We recognize that competition and economic growth necessarily rely on a healthy dealmaking environment. And competition thrives only if merger enforcement is robust and effective against unlawful transactions.

Over the past several years, there has been a growing concern across partisan lines that merger enforcement has fallen short, enabling and reinforcing monopoly power that threatens consumers, workers, and the pace of innovation. I’ll leave it to the economists to unpack the merits of this suspicion, but suffice to say, the civil conduct litigation dockets at the Antitrust Division and Federal Trade Commission suggest that this view is warranted in some industries.

To be clear, I am in no position to re-litigate the hard decisions made by our predecessors. But with the benefit of hindsight, one can reasonably debate whether enforcers were overconfident in the ability of certain markets to self-correct, notwithstanding the presence of significant network effects with the potential to cement monopoly power. In the worst-case scenario, failure to adequately enforce the antitrust laws could lead to permanent regulation, crippling economic dynamism and growth.

Our commitment to robust enforcement is shared by the White House, which, I’m pleased to report, has approved the use of merger filing fees to support the Division’s budget for fiscal year 2026. We are very grateful for this support. When companies pay a merger filing fee, they deserve to have those funds used by the Antitrust Division to timely and effectively review their merger. Should the White House’s restoration of the Division’s access to these fees become law, we look forward to leveraging those funds to further accelerate merger reviews and increase the rate and speed of early terminations — at no burden to taxpayers.

With our commitment to robust enforcement in mind, I nevertheless would underscore that we do not view dealmaking with inherent suspicion. There is no per se rule against mergers or transactions. Our primary mission is civil merger enforcement against the handful of mergers that are problematic, not civil merger deterrence generally.[2]

That may sound rudimentary to this audience, but it is a crucial observation for merger enforcement policy. Over more than 100 years of enforcement, neither Congress nor the courts have established a presumption of harm in mergers that warrants a categorical, or a “total deterrence” objective in enforcement. Even the Philadelphia National Bank presumption is rebuttable.[3] Moreover, in contrast to conduct that externalizes social costs in excess of private benefits — take pollution, for example — there is no equivalent punitive civil penalty to deter mergers to a de minimis level.[4]

Instead, Congress’ pre-merger review scheme provides a structured process that supports predictability — firms know certain transactions will be subject to HSR review prior to consummation and are incentivized to plan accordingly. The statute avoids the economic waste of unscrambling unlawful transactions, and provides a timeline for review commensurate with the magnitude of potential antitrust issues.

The merger review process itself, as implemented by enforcers, needs to be fair and predictable for firms to plan. Failure to enforce the antitrust laws consistent with these principles risks overdeterrence of lawful transactions. That’s what I’d like to discuss today.

As AAG Slater has said, antitrust is a scalpel that stands in contrast to the regulatory sledgehammer. On the merger side, our focus is on keeping the scalpel sharp. This allows us to surgically remove unlawful transactions (or their unlawful aspects) without nicking neutral deals or wounding procompetitive ones. Deterrence may be a second-order impact of deal-specific enforcement actions, but it is not the goal. Rather, our civil enforcement actions focus on the legality of specific transactions, each of which involves unique industry dynamics.

It is therefore imperative that antitrust enforcers recognize that the structural presumption is not a bright line rule that mandates enforcement to deter all mergers in concentrated industries. Evaluating the likely effects of a merger is a case-by-case exercise, and if other compelling evidence shows that a merger does not substantially lessen competition, an initial prediction of harm can be rebutted. The statutory enforcement regime, including available remedies, implicitly recognizes that the vast majority of mergers do not give rise to competitive concerns. For those that do, remedies may be available that adequately mitigate potential harm.

As the Division has sharpened its scalpel to aggressively pursue anticompetitive transactions, the need to wield this tool carefully has grown as well. A robust enforcement mission demands an even greater commitment to transparency and procedural fairness, not less. Our commitment to fair process enables us to enforce the law more vigorously against problematic deals without chilling the many beneficial ones.

When we stop transactions that cause harm, we will articulate our concerns in a transparent fashion, and fight to remedy harm without blocking the merger altogether, where possible. In this way, strong targeted enforcement can have an information multiplier effect on the broader dealmaking marketplace.

This brings me to the primary themes of my discussion today: procedural predictability and fairness in merger review and enforcement.

Ensuring procedural fairness is an initiative that the Division pursued during my prior period of service, in a multinational initiative led by former Assistant Attorney General Makan Delrahim and now-Principal Deputy AAG Roger Alford. Those efforts continue today.

In the merger context, we strive for a predictable process that provides parties a fair opportunity to engage and be heard. I know this doesn’t sound earth shattering. Everyone favors predictability, particularly lawyers whose clients are dealmakers. Too often, however, “predictability” is shorthand for weak enforcement — you don’t find many advocates on the defense side or the business community arguing for “predictably” high levels of enforcement. So let me be clear about what I mean by the term.

From both an economic and legal perspective, procedural predictability is critical to good government and economic dynamism. It promotes fairness and facilitates dealmaking that can benefit American companies and consumers. Procedural predictability also complements — in fact, promotes — vigorous enforcement.

When the Division’s attorneys and economists focus on identifying competitive concerns, addressing them with parties, and reaching a swift determination on whether enforcement is needed, we can narrow our attention to genuinely anticompetitive transactions that violate the Clayton Act. On the other hand, deals that are pro-competitive or competitively neutral should be able to proceed without a lingering regulatory review tax.

Promoting a healthy marketplace for transactions through procedural fairness also benefits the Division’s enforcement mandate by providing credibility when the Division appears in court. Under the system Congress enacted, you don’t need to ask for permission to do a deal. The marketplace determines the deals that are made, and the law enforcer must go into court and prove a case, or the appropriateness of a remedy, to a judge.

This is a feature, not a bug. Judicial review disciplines federal enforcement and focuses the Division on the strength of evidence as viewed by a neutral arbiter. A healthy respect for the adversarial tradition of common law adjudication thus goes hand in hand with procedural predictability and fairness in merger review.

To be clear, procedural due process is a two-way street. At the Division, we respect the statutory framework for merger enforcement in the United States, but if parties undermine procedural fairness — disregarding legal or ethical obligations — we will not hesitate to bring a disciplinary or enforcement action to protect our investigatory process and prerogative.

Our investigative process is grounded in duly enacted statutes and regulations, and is critical to protecting competition on behalf of consumers and workers.

I’d like to provide a few concrete proposals for how we will attempt to apply these principles in practice going forward.

But first, a quick prelude to ground first principles of fairness and predictability. Modern conceptions of sovereignty often claim as a maxim that government maintains a “monopoly on the legitimate use of physical force.”[5] At the heart of legitimacy in our Constitutional system and common law tradition is the principle of procedural due process.[6] Like a private monopoly extracting rents, government can cause harm by abusing procedural process — even where lawfully granted. In the extreme, governmental abuse of process not only undermines private persons’ rights to due process, but subverts substantive policies enacted in the antitrust laws.

If this sounds too lofty, let me be more blunt: the procedural tools available to antitrust enforcers provide us enormous power, and without guardrails on their use, we become tyrants.

In this vein, let me start with what we will not do.

“Scarlet” Warning Letters[7]: We will not send “scarlet” letters warning parties that they “close at their own risk.” Without dwelling too long on this point, such letters reflect a sorry state of counseling if clients mistakenly believe that expiration of the statutory waiting period constitutes “clearance” or “approval” of a transaction. Some commentators may miss this distinction, but we don’t, and neither do well-counseled clients. If the Division declines to bring an enforcement action, there is no need to signal to parties: “Nice merger you have; would be a shame if something bad happened to it some day.”

Policy “Leveraging”: We will not leverage the threat of law enforcement to accomplish policy objectives that are clearly beyond the law. If we conclude that a transaction is illegal and that the harm cannot be remediated through settlement, we will seek to enjoin the transaction.

We will not negotiate “relief” off-the-books that cannot be justified in federal court. Specifically, Section 7 of the Clayton Act does not contain a “public interest” mandate for the Division to seek relief beyond the specific harm to competition that a merger creates. By rough comparison, we would not allow a private monopolist to leverage its market power in one market to harm competition in another, and the same basic principle applies as a matter of merger enforcement policy: we do not use valid, but limited, grants of statutory authority to achieve policy objectives beyond the goals of the antitrust laws.

Nor do robust statutory grants of merger investigation authority provide blanket authorizations to the Division to use all means necessary to pursue absolute deterrence in mergers or in civil conduct. Congress stuck a policy balance in the different antitrust laws, and we should not mistake merger review authority for general civil investigative authority.

Abuse of HSR Process: To that end, we will not issue spurious second requests simply to build a civil or criminal conduct investigation. This follows logically from respect for procedural due process. The Division has broad and important statutory authority to investigate potential civil violations of law.[8] Of course, sometimes documents produced in merger reviews generate a civil or criminal investigation. But that result is incidental to the purpose of the second request. In the context of a merger investigation under the HSR Act, the statutory burden for obtaining documents is lower than in a conduct case, but that provides no justification to leverage HSR process as an end-run around the Antitrust Civil Process Act.

Again, our respect for the statutory text requires respect for procedural statutes as well. Vigorous enforcement demands, of course, that where the Division has merger-related concerns, we will not hesitate to investigate and to prosecute attempts to subvert the Division’s investigatory authority.

This leads me to what else we will do.

We will vigorously enforce the law if there is a violation. We will think creatively about how to deploy our exceptional trial attorneys and economists, with confidence that our commitment to procedural fairness will bolster the Division’s credibility in court. Vigor does not mean more cases, necessarily. Vigor means that we are using a scalpel wherever surgery is needed, not thrashing at every transaction we can bring under the knife.

We will be transparent with parties about where we have concerns so that they can focus their advocacy on addressing those concerns. This comes back to respect for the adversarial system. If the antitrust defense bar does its job, the cases that come to the Division will be hard cases. We value the advocacy of the merging parties (and interested third parties), which allows the Division to work through hard issues in good faith.

On this point, let me underscore: we care about the quality and professional integrity of the lawyers and economists that appear before us, not their stature in the antitrust bar or their political affiliation or background. We do not plan to hash out merger settlements over martinis. We are a team, and we intend to leverage the great expertise among our career and front office attorneys and economists to determine if settlements will appropriately protect competition.

We will enforce and prosecute procedural deficiencies that are important to our investigatory authority. An essential part of the adversarial system is a commitment to zealous advocacy on behalf of clients. But too often in recent years, parties have attempted to conceal materials in investigations and have abused legal professional privilege to benefit clients. As has been well-documented, we will seek judicial sanctions where parties systematically abuse legal professional privilege or recklessly disregard professional duties by withholding or altering documents required by the HSR Act.[9]  

For dealmakers and their counsel, this means respecting that the Division is entitled to certain information to conduct its investigation. Strategic behavior, including attempts to withhold relevant information or abuse legal professional privilege to thwart the Division’s ability to enforce the law, will be subject to heightened scrutiny.

The dual goals of procedural fairness and vigorous enforcement likewise animate the Division’s approach to merger settlements.

On this topic, let me start with an observation on positive continuity. When I served as Counsel and then Chief of Staff to AAG Delrahim, we went to great lengths to articulate and bring in to practice the Division’s longstanding preference for structural remedies. The strong institutional preference for structural remedies is a throughline to the present leadership under AAG Slater. It is also consistent with the Division’s law enforcement mandate.[10]

Structural remedies are preferred as an “efficient default” principle,[11] primarily informed by their record of effectiveness compared to behavioral remedies. Ideally, structural relief offers a scalpel to remove harmful issues that may infect an otherwise lawful transaction. But the effectiveness of structural relief has as much to do with doctor as with patient. Antitrust enforcement is not an ex-ante or regulatory oversight regime.[12] If antitrust is law enforcement, settlement must be recognized as an efficient and legitimate resolution of claims under our adversarial system. Division resources are dedicated to enforcement at a particular point in time based on the facts and circumstances as they exist at the time.

On top of that, merger review is typically a prospective enterprise, limiting the potential confidence level of relief targeting future harm. If that wasn’t enough, under the Tunney Act, the risk of failure weighs on the merging parties, not the public.[13]

The upshot of these factors is that structural relief is preferred based on practical considerations and learned experience rather than staid ideological commitments.

Of course, not all maladies are amendable to full-blown surgery. There may be times in which limited behavioral remedies buttress genuine structural relief. Remedies are inherently fact-specific, and behavioral conditions can provide necessary and adequate support. As I’ve said, the Division’s mandate is to prosecute transactions that threaten to harm competition. If structural relief with or without ancillary commitments is capable of substantially mitigating potential harm, the Division will engage with parties to understand how proposed relief adequately addresses the risks of competitive harm.

At the risk of sowing confusion, this is not an invitation to morph behavioral commitments into structural relief through costly legal alchemy. Market fundamentals, not labels, will inform the Division’s analysis. We will not pretend that night is day, that up is down, or that black is white.[14] As we work through these issues in negotiating a settlement that remedies competitive concerns, transparency between and among counsel and the Division is critical.

Transparency is also a statutory obligation under the Tunney Act.[15] We take that obligation seriously as lawyers that respect the Constitutional separation of powers.[16]

Accordingly, if we seek settlement to mitigate harm, the terms of settlement should be public. Parties can always address competitive concerns up front, through arms’ length deals with third parties before we, as enforcers, muddy the waters. Such fix-it-first proposals are welcome.

In recent years, however, parties have inked a deal, filed an HSR, engaged with the Division, and based on concerns expressed by the agencies, been instructed to divest and file new HSRs for the original transaction, plus the divestiture deal.

That is a “fix it second” remedy, not a “fix it first.” AAG Slater refers to this phenomenon as the “shadow decree” docket. It deprives the public of fair notice and opportunity for comment, and undermines the principle that antitrust is law enforcement rather than regulatory clearance.

In contrast, the public process afforded by the Tunney Act provides important guideposts for other parties. The contents of a complaint and competitive impact statement are an important tool for providing transparency to the public on how enforcement policy is applied in practice in particular cases.

I am pleased that, just this week, we announced a settlement of the merger of Keysight and Spirent that exemplifies the Division’s continued preference for structural relief and the nuanced protections we will impose to ensure their success.

We want to be transparent about our goals for merger settlements: they must be strong, robust, and provide great confidence in their ability to protect competition. This can be a “clean” divestiture to a ready buyer with strong incentives and the ability to compete, such as in the Keysight/Spirent settlement.[17] The parties resolved our concerns by agreeing to a divestiture to Viavi, an up-front buyer capable of absorbing multiple lines of business from the merging parties to replace potential lost competition.[18]

On occasion, structural remedies will be more complicated and involve ongoing commercial entanglements that are inherent to the products and industry. In these instances, strong monitoring and enforcement mechanisms are of utmost importance. As a baseline, we will examine whether market dynamics and the settlement align the parties’ incentives with the success of the remedy, or with its failure.

That is especially true of divestiture buyers. When we review proposed settlements involving identified divestiture buyers, we will be rigorous in assessing those buyers’ incentive and ability to replace lost competition in every dimension, including product or service quality.

Through every settlement and competitive impact statement filed in court, we can articulate the facts and circumstances that necessitate the specific relief, for the benefit of the public, as well as for parties and their counsel.

To summarize, we will be thoughtful about whether a particular merger settlement sufficiently mitigates the risk of harm. The strong preference for structural remedies is an efficient default principle, informed by decades of experience and economic analysis. But a default — like a legal presumption — is not a bright line rule. Merger enforcement is fundamentally a fact-specific, case-by-case exercise. In every case, we will thus be careful not to wield the antitrust scalpel as a bludgeon.

Vigorous enforcement that avoids overdeterrence requires our commitment to transparency and procedural fairness. If we succeed in restoring procedural fairness and vigor to merger review and enforcement, I hope we will also succeed in enjoining or mitigating harm where it occurs, without hampering the many transactions that benefit Americans.

Thank you all for attending this event. I appreciate your time and interest in antitrust enforcement.