Last week, President Trump nominated Makan Delrahim to serve as the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice. Mr. Delrahim, who is currently serving as White House Deputy Counsel, is a former lobbyist and veteran of the George W. Bush Justice Department. He served as Deputy Assistant Attorney General for International from 2003–2005. Mr. Delrahim had a good working relationship with the career staff who he will now rely upon to advance the Trump Administration’s antitrust enforcement agenda and priorities.
Mr. Delrahim’s background indicates he will likely pursue a more traditional conservative approach to enforcement, potentially altering the trajectory of the Antitrust Division away from what many have seen as a more activist approach during the Obama Administration. We expect aggressive cartel enforcement and less aggressive merger enforcement. This does not mean merging parties will get a free pass. We expect Mr. Delrahim will hold the staff to a high burden of proof before approving a merger challenge and to be more willing to accept efficiency claims.
Some reports have speculated about whether the Antitrust Division will adopt unconventional enforcement polices consistent with statements President Trump made during the campaign, for instance, by considering employment, industrial policy, or other non-competition factors in a competition analysis. This outcome appears unlikely given Mr. Delrahim’s record during the Bush Administration and in private practice. Mr. Delrahim, however, may advance an “America First” agenda. Watch for a more aggressive stance against foreign competition authorities that deny U.S. firms procedural and substantive fairness.
One of Mr. Delrahim’s first test cases could be AT&T’s $85 billion proposed acquisition of Time Warner. In October 2016 (while he was still in private practice), Mr. Delrahim stated to a Canadian news outlet that he did not anticipate any major antirust issues with the proposed transaction. However, as a presidential candidate, Mr. Trump opposed the deal, citing it as an example of “too much concentration of power in the hands of too few.”
Depending on the timing of his confirmation, in addition to the AT&T-Time Warner deal, Mr. Delrahim could also be responsible for reviewing the following transactions which await antitrust approval:
- Dow Chemical Co.’s bid for Dupont Inc.
- Bayer AG’s proposed acquisition of Monsanto Co.
- Anthem Inc.’s proposed acquisition of Cigna Corp. Anthem. Mr. Delrahim lobbied for Anthem Inc., which could lead to his recusal on this deal.
Prior to joining the White House in January of this year, Mr. Delrahim worked primarily as a corporate lobbyist at the California-based law firm Brownstein Hyatt Farber Schreck, LLP. He served as a commissioner on the Antitrust Modernization Committee, an independent commission created by statute in 2002. In addition to his service at the DOJ Antitrust Division from 2003–2005, he worked as a staffer for the Senate Judiciary committee from 1998–2003.