The White House announced yesterday that Makan Delrahim will be nominated to head up the United States Justice Department’s Antitrust Division. Delrahim, a long-time D.C. attorney with decades of policy and lobbying experience, is expected to be confirmed, given his Hill connections and support from the antitrust community. He is currently a member of President Trump’s transition team and most recently worked to guide Supreme Court nominee Neil Gorsuch through the Senate confirmation process. Delrahim has been described as a conservative pragmatist who listens to all sides as he attempts to develop consensus, an approach he is expected to take in his new proposed role. We anticipate that his nomination marks a return to the Bush-era level of merger challenges (meaning that the Antitrust Division will still be active), but that the Antitrust Division is more likely to clear deals that create verifiable efficiencies and is more willing to remedy issues through divestiture than Delrahim’s predecessors in the Obama administration.
Delrahim’s prior work in and out of government, including his experience as deputy director for intellectual property rights at the Office of the U.S. Trade Representative in 1994 and his experience as deputy assistant attorney general for international, policy and appellate matters during the Bush administration, will likely inform his approach and priorities. Based on this work, Delrahim is likely to favor divestiture remedies over those that require continued government oversight and engagement in the market. Based on his prior experience and public statements, we expect that Delrahim will look closely at the intersection of intellectual property and antitrust law and that he may push for less antitrust enforcement of companies that exercise the inherent exclusionary power that accompanies lawfully obtained patent rights. With a number of major mergers already being reviewed, such as the $130 billion merger between DuPont and The Dow Chemical Co., and predictions of more on the horizon, Delrahim’s confirmation could have significant antitrust implications quickly.
Delrahim has not yet been formally nominated. Once he is nominated, which could happened quickly or take some time, he must be confirmed by the Senate, which we anticipate will take two to four months. Additional clues about Delrahim’s positions will be revealed during the confirmation process.