Eyes on AI: Looking ahead to potential AI antitrust enforcement in the Trump administration
16 min read
At a time when headlines about artificial intelligence seem to dominate everything from boardrooms to breakfast tables, clients and practitioners may be wondering whether the expanded use of AI will bring expanded antitrust risk. In private antitrust litigation in the United States, the answer undoubtedly is yes, as several class action lawsuits have been filed challenging parties' attempts to use AI to improve their pricing strategies.1 With respect to government enforcement, while President Trump has rolled back many regulations issued during the Biden Administration, antitrust enforcement in the AI space appears to have a permanent seat at the table. Coupled with the Trump Administration's apparent interest in preventing so-called viewpoint discrimination, the antitrust bar has a lot to keep its eyes on. This brief note attempts to put in context the current administration's approach to antitrust enforcement in AI and to highlight what clients and practitioners need to know.
Antitrust Regulation in the AI Space under the Biden Administration
The Biden Administration's efforts in this space provide important context for the current administration's approach. As discussed below, two Biden-era executive orders reflected priorities that we can assume the Trump Administration will not pursue, as President Trump has rescinded both orders. The Biden Administration FTC's report on AI, however, provided an early window into the current FTC's approach to antitrust and AI.
October 2023 Executive Order. On October 30, 2023, President Biden issued an executive order titled, "Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence."2 The Executive Order recognized two possible uses of AI: (1) "Responsible AI use," which "has the potential to help solve urgent challenges while making our world more prosperous, productive, innovative, and secure"; and (2) "irresponsible use," which "could exacerbate . . . fraud, discrimination, bias, and disinformation," lead to displacement in the labor market, harm competition and pose national security risks.3 To promote safe and responsible AI use, the Executive Order established eight guiding principles regarding the adoption, use and governance of AI within the US government.4 The principles imposed sweeping directives on federal agencies and other government entities, such as new reporting requirements for AI models trained using substantial computing power,5 the creation of an advisory committee on improving national security regarding AI use in critical infrastructure,6 streamlining visa petitions and applications for skilled AI workers, students and researchers7 and enhanced protections against AI-related IP risks.8
January 2025 Executive Order. On January 14, 2025, President Biden issued an executive order on "Advancing United States Leadership in Artificial Intelligence Infrastructure," which addressed the construction and operation of domestic AI infrastructure.9 The Executive Order directed the Departments of Defense and Energy to coordinate with other federal agencies to identify and lease at least three federal sites to non-federal entities for building and operating AI data centers and clean energy facilities.10 The Executive Order also sought to prevent irresponsible AI use by "adversaries" seeking to "gain[] access to, and us[e], powerful future systems to the detriment of [the United States'] military and national security."11 It also sought to "harness[]" responsible AI use "in service of national-security missions while preventing the United States from becoming dependent on other countries' infrastructure to develop and operate powerful AI tools."12
January 2025 FTC Report. On January 17, 2025, the FTC's Office of Technology published a staff report on its study of AI partnerships and investments.13 The FTC Report focused on the partnerships among three cloud service providers ("CSPs")—Alphabet, Amazon and Microsoft—and two generative AI developers—Anthropic and OpenAI—and was intended to "help[] the agency, the public, and policymakers deepen their understanding" of these partnerships.14 As the FTC found, key terms of the partnerships include, among others, CSPs' "significant" revenue-sharing rights in, and exclusivity rights to, AI developer partners and sharing of key resources, personnel and IP.15 The Report also highlighted, in Section 5, "areas to watch" regarding the partnerships' potential implications, including the potential for limitations on access to inputs such as computing resources and engineering talent and increases in the costs for AI developers to switch from one CSP to another.16
Notably, the day the FTC Report was released, then-FTC Commissioner (and current FTC Chair) Andrew N. Ferguson, joined by then-Commissioner Melissa Holyoak (a Republican who continued to serve as commissioner in the Trump Administration before being appointed Interim US Attorney for the District of Utah), issued a statement largely concurring with the FTC Report but dissenting from Section 5.17 Ferguson and Holyoak recognized the "remarkable promise" of AI and its potential to become "a driving force for innovation, economic growth, and increased productivity for American workers," yet acknowledged the "significant challenge" it posed to what they described as the "Big Tech firms' dominance."18 Accordingly, they warned, "the Commission must not charge headlong to regulate AI"—as "such regulation could strangle this nascent technology in its cradle, or move the development of the technology to foreign states hostile to our national interests"—but nonetheless should "remain a vigilant competition watchman, ensuring that Big Tech incumbents do not control AI innovators in order to blunt any potential competitive threats."19 Ferguson and Holyoak voted to approve the FTC Report, but in dissenting from the inclusion of Section 5 they explained that, because the FTC's study was "quick" (conducted within a year) and "narrow in scope" (three partnerships), the agency "should not have published speculation about" the future of AI and that "[r]eaders should skip Section 5 of the Report, or read it with tremendous skepticism."20 This sentiment is consistent with Ferguson's prior statements: "As our country has always done, we should give [the AI] industry the space to realize its full potential—whatever that turns out to be."21
Antitrust Regulation of AI in the Trump Administration
On January 20, 2025, President Trump revoked the Biden Administration's October 2023 Executive Order22 and, three days later, issued an executive order titled, "Removing Barriers to American Leadership in Artificial Intelligence."23 The January 23 Executive Order emphasized a US policy "to sustain and enhance America's global AI dominance" by developing AI systems "free from ideological bias or engineered social agendas."24 On July 23, 2025, President Trump revoked former President Biden's January 2025 executive order on domestic AI infrastructure.25
On April 23, 2025, President Trump signed an executive order titled, "Advancing Artificial Intelligence Education for American Youth," aimed at enhancing AI education and workforce development in the United States.26
In July 2025, the Trump Administration published "Winning the Race: America's AI Action Plan," which framed the race to "global dominance" in AI as a new "space race" that will "usher in a new golden age of human flourishing, economic competitiveness, and national security for the American people."27 With respect to antitrust law, the AI Action Plan outlined a policy to "[r]eview all Federal Trade Commission (FTC) investigations commenced under the previous administration," as well as final orders, consent decrees and injunctions, to ensure none "advance[s] theories of liability that unduly burden AI innovation."28 The July 2025 Executive Order did not identify any of the theories of liability about which the administration was concerned.
While the Trump Administration's recent actions do not express specific antitrust or enforcement priorities, some commentators have described the administration's encouragement of AI development as suggesting a potentially lax enforcement approach in the AI space.29 And recently, on November 24, 2025, President Trump issued an executive order launching the "Genesis Mission," "a dedicated, coordinated national effort to unleash a new age of AI‑accelerated innovation and discovery that can solve the most challenging problems of this century."30 The Executive Order specifically notes that a plan will be developed "for incorporating datasets from federally funded research, other agencies, academic institutions, and approved private-sector partners, as appropriate."31
Nonetheless, the fundamental goals underlying the Trump Administration's antitrust enforcement approach to AI—balancing the encouragement of a free market with enforcement against anticompetitive conduct—have not diverged markedly from those of the Biden Administration. For example:
On January 30, 2025, ten days after President Trump's inauguration, Holyoak, speaking at a Global Competition Review forum, referenced her and now-FTC Chair Ferguson's positions on the Biden-era FTC Report (concurring in part and dissenting in part), noting: "The topics covered by the report are important. While I may not agree with everything in the report, the underlying analysis 'advances our knowledge of some of the commercial dynamics shaping AI's evolution' . . . ."32
On March 13, 2025, Ferguson, speaking with CNBC, stressed that the Trump Administration intends to protect Americans against "Big Tech" in the marketplace by enforcing antitrust laws, which suggests that the rollback of some of the Biden Administration's AI policies does not mean that tech regulation will be lax overall.33
On June 3, 2025, Holyoak, in her keynote address at the US AI Summit, stated: "I do not have blind faith in the idea that AI will fix all of our problems and cure everything that ails us. The technology can only reach its full, beneficial potential if we—and I really mean 'we' as human civilization as a whole—create the conditions for success."34 Holyoak further stated: "[B]ecause the technology transcends national borders and language barriers, the global market could coalesce around a very small number of firms. Exclusionary conduct in this field could dampen innovation or harm consumers on a worldwide scale. In my mind, these factors mean that antitrust enforcers need to be vigilant and carefully monitor these markets."35
Viewpoint Discrimination: An Emerging Area of Interest in the Trump Administration's Approach to Antitrust Enforcement in the AI Space
One area that appears likely to motivate the Trump Administration to use antitrust tools in the AI space is alleged viewpoint discrimination. While some of the enforcement actions described below do not relate specifically to AI, the administration's announcements and other statements regarding their early antitrust enforcement efforts make clear that agency leadership sees AI as an important space to police for potential content-based speech limitations.
On July 11, 2025, the DOJ Antitrust Division filed a statement of interest in Children's Health Defense v. WP Co., a lawsuit in which plaintiffs, online news publishers, allege that The Washington Post and other mainstream media outlets deplatformed the plaintiffs for sharing non-mainstream viewpoints on the COVID-19 pandemic.36 Noting that the public "desire[s] and demand[s] diverse perspectives" and "therefore vitally depend[s] on viewpoint competition in the marketplace of ideas," the Antitrust Division urged the court to reject the media defendants' argument that viewpoint competition is exempt from the antitrust laws.37 The Antitrust Division argued that "the Sherman Act protects all forms of competition, including competition in information quality," and that Sherman Act Section 1 offers a legal framework for plaintiffs to bring viewpoint discrimination claims in courts.38
On September 26, 2025, the FTC approved a final order in In re Omnicom Grp. Inc. & Interpublic Grp. of Cos., Inc.39 In June 2025, the FTC had sued to block Omnicom's proposed acquisition of Interpublic, a transaction that would combine two of the world's six major advertising holding companies, claiming that the merger would increase the potential for collusion among firms in the media-buying services sector, thereby potentially leading to higher prices and reduced output.40 In a statement regarding the FTC's complaint, Ferguson noted the "deliberate, coordinated efforts to steer ad revenue away from certain news organizations, media outlets, and social media networks" that has "plagued" the advertising industry in recent years.41 The final order prohibits Omnicom from negotiating or entering into agreements that direct advertising dollars away from publishers based on political or ideological viewpoints and requires Omnicom to file annual reports with the FTC certifying compliance with this directive.42
On September 18, 2025, DOJ Antitrust Division Assistant Attorney General Gail Slater, in her keynote address at the annual Fordham Conference on International Antitrust Law and Policy, discussed the role of the Antitrust Division in ensuring the antitrust laws protect "viewpoint competition" and "the marketplace of ideas" in media.43 Referencing the July Statement of Interest, Slater stated: "Ensuring that the AI markets are open to competition means that rivals with different approaches can compete on the merits. The availability of different AI systems and products can ensure that consumers have choices to pick from, safeguarding the free flow of information in our democracy. Different viewpoints can rise to the top in the marketplace of ideas."44
These recent actions and statements from the Antitrust Division and the FTC suggest that preserving viewpoint competition and the flow and diversity of ideas in the marketplace is likely to be a key area of focus for AI antitrust enforcement under the Trump Administration.
Looking ahead, and as we approach the midterm elections and the next US Presidential election, it will be important to watch whether AI becomes a significant battleground for antitrust enforcement—especially at a time when antitrust enforcement often serves as a signal for broader policy priorities.
Separately, an important question for the administration in the context of individual enforcement efforts will be whether those efforts, even if intended to encourage free expression, risk deterring further innovation in the development and use of AI. Notably, while the Trump Administration has dismantled many Biden-era regulations and policies regarding AI, the current administration has preserved its ability to use most of the last administration's antitrust tools when it wishes to do so, including by endorsing the Biden Administration's FTC/DOJ Merger Guidelines (to the surprise of many observers). Particularly in a nascent industry such as AI, antitrust enforcement can have unintended consequences, and it would be unfortunate if punitive antitrust enforcement efforts discouraged the creative development and use of AI.
1 See, e.g., Hanson Dai v. SAS Inst. Inc., No. 24-cv-2537, 2025 U.S. Dist. LEXIS 143235, at *3 (N.D. Cal. July 18, 2025) (granting motion to dismiss claims for failure to allege a horizontal agreement among competitors to use software to allegedly fix hotel room prices); In re Multiplan Health Ins. Provider Litig., 789 F. Supp. 3d 614, 647–48 (N.D. Ill. 2025) (denying motion to dismiss claims against Multiplan, a healthcare technology company, and insurers to fix the prices of reimbursement rates for out-of-network services using Multiplan's algorithm).
2 See Exec. Order No. 14,110, 3 C.F.R. 657 (Jan. 1, 2024), https://www.govinfo.gov/content/pkg/CFR-2024-title3-vol1/pdf/CFR-2024-title3-vol1-eo14110.pdf.
3 Id.
4 Id. at 657–60.
5 Id. at 664–65.
6 Id. at 667–68.
7 Id. at 673–74.
8 Id. at 675–76.
9 See Exec. Order (Jan. 14, 2025) [hereinafter "January 14 Executive Order"], https://bidenwhitehouse.archives.gov/briefing-room/presidential-actions/2025/01/14/executive-order-on-advancing-united-states-leadership-in-artificial-intelligence-infrastructure/.
10 Id. § 4.
11 Id. § 1.
12 Id.
13 Fed. Trade Comm'n, Partnerships Between Cloud Service Providers and AI Developers: FTC Staff Report on AI Partnerships & Investments 6(b) Study (Jan. 2025) [hereinafter "FTC Report" or the "Report"], https://www.ftc.gov/system/files/ftc_gov/pdf/p246201_aipartnerships6breport_redacted_0.pdf.
14 Id. at 1.
15 Id. at 2.
16 Id. at 3.
17Fed. Trade Comm'n, Concurring and Dissenting Statement of Commissioner Andrew N. Ferguson Joined by Commissioner Melissa Holyoak Regarding the FTC Staff Report on AI Partnerships & Investments 6(b) Study Matter Number P246201 (Jan. 17, 2025) [hereinafter "Ferguson & Holyoak Statement"], https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-ai-6b-statement.pdf.
18 Id. at 1.
19 Id.
20 Id. at 1–2.
21 Fed. Trade Comm'n, Dissenting Statement of Commissioner Andrew N. Ferguson Joined by Commissioner Melissa Holyoak: In the Matter of Rytr LLC Matter Number 2323052, at 9 (Sept. 25, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-rytr-statement.pdf.
22 Initial Recissions of Harmful Executive Orders and Actions, The White House (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/initial-rescissions-of-harmful-executive-orders-and-actions/.
23 Exec. Order No. 14,179 (Jan. 23, 2025) [hereinafter "January 23 Executive Order"], https://www.whitehouse.gov/presidential-actions/2025/01/removing-barriers-to-american-leadership-in-artificial-intelligence/.
24 Id. §§ 1, 2.
25 Exec. Order (July 23, 2025), https://www.whitehouse.gov/presidential-actions/2025/07/accelerating-federal-permitting-of-data-center-infrastructure/.
26 See Advancing Artificial Intelligence Education for American Youth, Executive Orders (Apr. 23, 2025), https://www.whitehouse.gov/presidential-actions/2025/04/advancing-artificial-intelligence-education-for-american-youth/.
27 Office of the President of the U.S., Winning the Race: America's AI Action Plan 1 (July 2025) [hereinafter "AI Action Plan"], https://www.whitehouse.gov/wp-content/uploads/2025/07/Americas-AI-Action-Plan.pdf; see also Hope Anderson, Henry Y. Huang, and John Oltean, White House Unveils Comprehensive AI Strategy: "Winning the Race: America's AI Action Plan," White & Case (Aug. 14, 2025), https://www.whitecase.com/insight-alert/white-house-unveils-comprehensive-ai-strategy-winning-race-americas-ai-action-plan.
28 AI Action Plan at 3.
29 See Erica Jones et al., FTC Focus: Enforcers Study AI Innovation and Entrenchment, Law360 (July 3, 2025), https://www.law360.com/articles/2359419/ftc-focus-enforcers-study-ai-innovation-and-entrenchment (noting that Trump and Biden's executive orders "share no similarities" as the Trump order "does not contain specific directives . . . but instead articulates [a] national AI policy"); Adam Aft et al., AI Tug-of-War: Trump Pulls Back Biden's AI Plans, Emp. Rep. (Jan. 25, 2025), https://www.theemployerreport.com/2025/01/ai-tug-of-war-trump-pulls-back-bidens-ai-plans/; Trump Seeks to Halt State AI Rules Vilified by Tech Industry, yahoo!finance (Nov. 20, 2025), https://finance.yahoo.com/news/trump-seeks-halt-state-ai-170149024.html ("The Trump administration has been an enthusiastic supporter of artificial intelligence . . . .Chief executives of leading AI companies have forged close relationships with the president, and the White House has sought to clear away impediments to the technology's rapid advancement.").
30 Exec. Order (Nov. 24, 2025), https://www.whitehouse.gov/presidential-actions/2025/11/launching-the-genesis-mission/.
31 Id. (emphasis added).
32 Melissa Holyoak, Comm'r, Fed. Trade Comm'n, Remarks at GCR Live: Law Leaders Global 2025, at 7 (Jan. 30, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/2025-02-04-holyoak-remarksr-for-global-competition-review-event.pdf; see Odia Kagan, How Will the FTC Approach AI Under the Trump Administration, Fox Rothschild (Feb. 11, 2025), https://dataprivacy.foxrothschild.com/2025/02/articles/artificial-intelligence/how-will-the-ftc-approach-ai-under-the-trump-administration/.
33 See CNBC, FTC Chair Andrew Ferguson: Big Tech Is One [of] the Main Priorities of This Agency, at 01:30-01:34 (YouTube, Mar. 13, 2025) ("We will make . . . every resource necessary to litigate these cases [against so-called Big Tech firms]."), https://www.youtube.com/watch?v=JTVlqgTfxGg; but see Carrie G. Amezcua et al., What to Expect from the Federal Trade Commission Under Andrew Ferguson's Lead, Buchanan Ingersoll (Jan. 29, 2025) (discussing Ferguson's cautious approach towards AI regulation), https://www.bipc.com/what-to-expect-from-the-federal-trade-commission-under-andrew-ferguson%E2%80%99s-lead.
34 Melissa Holyoak, Comm'r, Fed. Trade Comm'n, Keynote Address at the U.S. AI Summit 2025, Antitrust and AI: Foundational Principles Meet Foundation Models, at 2 (June 3, 2025) [hereinafter "June 2025 Keynote Address"], https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-antitrust-ai.pdf.
35 Id. at 5–6.
36 See Statement of Interest of the U.S., Children's Health Def. v. WP Co., No. 1:23-cv-2735 (D.D.C. July 11, 2025) [hereinafter "Statement of Interest"], https://www.justice.gov/atr/media/1407666/dl?inline; see also Press Release, Dep't of Just., Justice Department Files Statement of Interest on Suppression of Competition in the Marketplace of Ideas Through Deplatforming of Rival Viewpoints (July 17, 2025), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-suppression-competition-marketplace-ideas ("When companies abuse their market power to block out and deplatform independent voices and protect legacy media, they harm competition and threaten the free flow of information on which consumers depend.").
37 Id. at 1–2.
38 Id. at 2.
39 See Decision & Order, In re Omnicom Grp. Inc. & Interpublic Grp. of Cos., No. C-4823 (F.T.C. Sept. 26, 2025) [hereinafter "Decision & Order"], https://www.ftc.gov/system/files/ftc_gov/pdf/OmnicomOrder.pdf.
40 See Compl., In re Omnicom Grp. Inc. & Interpublic Grp. of Cos., No. C-4823 (F.T.C. June 23, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/2410059C4823OmnicomComplaint.pdf.
41 Fed. Trade Comm'n, Statement of Chairman Andrew N. Ferguson, In re Omnicom Grp. & Interpublic Grp. of Cos., No. C-4823 (F.T.C. June 23, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/omnicom-ipg-ferguson-statement_0.pdf.
42 Decision & Order at 3–4.
43 See Gail Slater, Assistant Att'y Gen., Dep't of Just., Keynote Address at the Fordham Competition Law Institute's 52nd Annual Conference on International Antitrust Law and Policy (Sept. 18, 2025) [hereinafter "September 2025 Keynote Address"], https://www.justice.gov/opa/speech/assistant-attorney-general-gail-slater-delivers-remarks-52nd-annual-conference#_ftnref13.
44 September 2025 Keynote Address; see Ben Remaly, Slater: AI Competition Protects Viewpoint Diversity, Glob. Competition Rev. (Sept. 18, 2025), https://globalcompetitionreview.com/gcr-usa/article/slater-ai-competition-protects-viewpoint-diversity.
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