FTC chair signals move to litigate merger challenges in federal courts after Supreme Court rulings
- On July 9, FTC Chair Andrew Ferguson’s planned merger-litigation approach came into sharper focus after June 29 Supreme Court rulings on presidential control. - Ferguson said the FTC would pursue merger challenges only in federal court, ending the agency’s long-running two-track use of administrative proceedings. - The next test is in pending federal merger cases, where district judges will handle injunction requests and merits records.
Andrew Ferguson’s merger-enforcement plan is becoming clearer after the Supreme Court’s June 29 ruling in *Trump v. Slaughter*. The Federal Trade Commission chair has said the agency will pursue merger challenges exclusively in federal court, rather than pairing a district-court injunction request with an in-house administrative case, according to legal summaries of his recent remarks and reporting on the shift. The June 29 decision matters because the Supreme Court overruled *Humphrey’s Executor* and held that for-cause removal protections for FTC commissioners violate the Constitution’s separation of powers, expanding presidential control over the agency. The Hill and several legal analyses said the ruling was read as a broad change in the status of independent agencies. ### Why does the forum matter so much in merger cases? (arnoldporter.com) Section 13(b) of the FTC Act has long let the agency go to federal court to seek a preliminary injunction while also pursuing an administrative complaint before an FTC administrative law judge. The FTC’s own legal library describes both routes — federal court and internal adjudication — as part of its case machinery. Under Ferguson’s approach, district judges would handle the challenged merger cases from the start rather than serving mainly as the first stop before an administrative trial. (supremecourt.gov) Legal analyses by Vinson & Elkins, WilmerHale and Arnold & Porter said that change aligns the FTC more closely with the Justice Department, which litigates merger challenges in federal court because it has no in-house adjudicative forum. (ftc.gov) ### What changes once the FTC drops the administrative track? Federal judges would become the central factfinders in merger disputes. That raises the importance of the evidentiary record the FTC can assemble early, including market-definition evidence, concentration data, customer testimony and documents on competitive effects, according to the legal analyses describing the shift. (velaw.com) Preliminary-injunction standards would also carry more weight. In the old two-track model, a district judge’s decision on interim relief could preserve the status quo while the commission continued litigating internally; in a single-track federal case, the court’s handling of injunction and merits issues becomes more consequential to the entire challenge. That is the framework described in the legal commentary on Ferguson’s remarks. (velaw.com) ### Did the Supreme Court ruling force this change? The public record so far shows a close timing link, not a formal command from the court. The Supreme Court’s opinion in *Trump v. Slaughter* addressed presidential removal power over FTC commissioners, while legal commentary tied Ferguson’s merger-forum shift to constitutional concerns about the commission’s in-house adjudication of private-rights disputes. (jdsupra.com) Tech and policy coverage published after the decision said the broader agency-independence ruling accelerated scrutiny of the FTC’s administrative processes and reinforced the move toward ordinary federal litigation. The Hill separately reported that the ruling gave President Donald Trump broader authority over independent commissions. ### Where is this showing up already? (supremecourt.gov) The FTC’s December 2025 challenge to Henkel AG & Co.’s proposed acquisition of the “Liquid Nails” brand was cited by law firms as an early example of the new approach because the agency sought a permanent injunction in federal court without a parallel administrative action. Those analyses described the case as a departure from longstanding FTC merger practice. (thehill.com) The commission’s current docket also shows how much of its enforcement work now depends on federal judges. The FTC’s cases-and-proceedings database and commissioner-statements page list matters brought in court and statements by Ferguson, including recent filings and settlements. ### What should readers watch next? Future merger complaints will show whether the FTC consistently seeks permanent relief in district court and how it structures requests for preliminary injunctions. (wilmerhale.com) The clearest public markers will be new federal filings, commission statements and court schedules in challenged deals. (ftc.gov 1) (ftc.gov 2)
