The opinions expressed here are those of the author, a columnist for Reuters.

By Jenna Greene

April 14 (Reuters) - The U.S. Federal Trade Commission in a court filing last week defended its new rule requiring companies to provide more information upfront about prospective M&A deals as a “commonsense” update, rejecting claims by business groups concerned about compliance costs.

This wouldn’t be remarkable — except that the rule was finalized during the last weeks of former President Joe Biden’s administration and took effect in February.

For the FTC to champion a Biden-era policy underscores to me how, even as President Donald Trump enacts sweeping changes across the federal government, one area has remained relatively constant: antitrust enforcement.

“So far, the Trump policies at the FTC have not been a radical departure from the antitrust policies of the Biden administration,” Thomas Stratmann, a professor of economics and law at George Mason University, told me via email. “It’s a surprising amount of continuity.”

To be sure, it’s not entirely seamless. In March, Trump fired the FTC’s two remaining Democratic commissioners, who have sued to protest their dismissals.

But through-lines between the administrations are notable. Consider that on Monday, the FTC kicked off an antitrust trial against Meta in a case that began in 2020 during Trump’s first term and proceeded under Biden. If the government prevails, it could force the company to unwind its acquisitions of messaging platform WhatsApp and image-sharing app Instagram.

Meanwhile, the U.S. Department of Justice is sticking with recommendations made by prosecutors last fall to pursue a court order that would require Alphabet’s Google to sell its Chrome browser, my Reuters colleagues report — a case that also originated in Trump's first administration.

And both FTC Chairman Andrew Ferguson and DOJ antitrust officials have pledged to retain merger guidelines that were revised in 2023. “I think the clear lesson of history is that we should prize stability and disfavor wholesale rescission,” Ferguson wrote in a memo to FTC staff in February.

That’s not a sentiment I’ve heard much from other government agencies of late.

There’s not a single pat answer to explain the continuity in antitrust enforcement. We do know that when Trump announced the nomination of Gail Slater to head the DOJ's antitrust division on Truth Social in December, he wrote that “Big Tech has run wild for years, stifling competition in our most innovative sector."

Spokespeople from the FTC and DOJ did not respond to requests for comment.

In October, the FTC commissioners voted 5-0 in favor of the new premerger filing rule, including a "yes" from Ferguson, who was elevated to agency chair by Trump on inauguration day.

The U.S. Chamber of Commerce and its Longview, Texas, chapter, along with the Business Roundtable and the American Investment Council sued the FTC in January in U.S. District Court for the Eastern District of Texas. In asking the court to set the rule aside, they argue it will “massively” expand the time and money it takes to fill out premerger paperwork without offering commensurate benefits to justify the burden.

The rule is “not simply a bad idea, though it is that,” the business plaintiffs said, but also violates the Administrative Procedure Act. Outside counsel Jeffrey Wall, a partner at Sullivan & Cromwell, did not respond to a request for comment, nor did a Chamber of Commerce spokesperson.

A little background: For the past 45 years, the Hart-Scott-Rodino Antitrust Improvements Act has required companies looking to close certain transactions, including those currently valued at more than $126.4 million, to first notify the antitrust agencies and to generally wait at least 30 days. That gives the FTC or DOJ the chance to investigate and, if necessary, sue to block the deal before the parties integrate their assets.

Since the law went into effect in 1978, the FTC has only made minor tweaks to the basic information required upfront to screen a deal’s potential competitive impact, both the plaintiffs and FTC in court papers agree.

Each year, the antitrust agencies get anywhere between 1,500 and 3,000 such filings, and the plaintiffs say the vast majority get nothing more than a “cursory glance” because the transactions so obviously don’t raise antitrust concerns. From 2001 to 2020, only 3.1% were flagged for a so-called second request for additional documents, according to the complaint.

The plaintiffs argue this system worked well. “If it ain’t broke, don’t fix it,” they wrote, noting that the FTC “has never identified a single transaction that it missed because of gaps in the requirements of the previous premerger form.”

While the FTC estimated it took an average of 37 hours to complete the old form, the plaintiffs say the new version will require 105 hours or more.

The FTC in its answer filed on April 10 counters that a lot has changed in 45 years.

Corporate structures, dealmaking and market realties that “were rare in 1978” are now increasingly common, the FTC said. “These profound changes had created gaps between the information collected on the prior form” and what the antitrust agencies need now to evaluate a proposed transaction.

Ferguson elaborated in a statement issued last fall when he voted in favor of the rule. For example, he said, 20 years ago, only 10% of acquiring firms were funds or limited partnerships. That figure now is close to 40%, and includes shell companies that may reveal little public information about their holdings or operations.

The new rule requires disclosure of investors in the buyer, including those with management rights.

As a threshold matter, though, the FTC argues that the case belongs in federal court in Washington, D.C., where three of the four plaintiffs are based, and not Tyler, Texas, where the only tie to the district is the Longview Chamber of Commerce.

The Longview Chamber lacks standing, the FTC says, because it doesn’t allege any of its members are involved in an M&A deal that has required them to fill out the new premerger form.

(Reporting by Jenna Greene)