By Dan Scorpio and Mike Hotra of H/Advisors Abernathy, Ashley Callen of Jenner & Block, and Tim FitzSimons of King & Spalding

The era of big M&A antitrust enforcement is over. Or is it?

Amid a resurgent M&A environment for large transactions, those valued at $10 billion and greater, much ink has been spilled about a perceived shift in the regulatory landscape away from the Biden Administration’s approach to M&A review. In recent months, we have seen shorter timelines to closing, a return of remedies to the government’s approval toolkit and a more permissive environment overall. In addition, Congress trusts this FTC.

But a more relaxed regulatory environment has not been universal. Heading into 2025, most dealmakers and corporate leaders did not anticipate that agency review of deals would be hung up by social or workplace culture issues, the federal government would reassert an active industrial policy through tariffs and by undertaking a concerted effort to become a large investor in U.S. public companies through golden shares and other mechanisms.

To sort through these topics, we provided the below recommendations as fellow panelists at the 45th Annual Ray Garrett Jr. Corporate & Securities Law Institute. These are high-level guidelines and insights to assist companies navigating the current M&A landscape, including Congress’ scrutiny of this area.

• Have a plan to get ahead of likely issues. The transactional nature of this administration, and the hot topics on which they are focusing, should not come as a surprise. The Trump administration, and many Congressional Republicans, campaigned on these commitments. They told voters what they would do and now they are following through with promises. Self-audit your workplace and culture (i.e. DEI and ESG) programs, review prior disclosures and public statements, understand what motivates your regulators and representatives.

• Test your acquisition targets for antitrust risks in advance. Work with your corporate development team to conduct thorough assessments of prospective companies on your short list of targets, in the context of today’s environment. Issues can be managed but know which deals may be dead on arrival before you spend resources, time and executive energy time pursuing them.

• Plan for today’s new media landscape. For deals under regulatory scrutiny, the battleground today still includes The Wall Street Journal, Financial Times, the wires and New York Times, but the terrain has shifted. Leaders and their staffs are turning more often to podcasts, newsletters and partisan or niche outlets driving messages on social media. Think differently and with creativity so you are directly reaching decisionmakers where they are now, not where they have traditionally been.

• Engaging with Congress can be an opportunity. Too many companies choose to be too reactive in engaging with Congress. On large transactions, now, that assumption is frequently a mistake. Recently, Congress has demonstrated a track record of influencing change at organizations of all sizes. It is prudent to assemble to team of lobbyists, lawyers, and communicators to educate, build relationships where they don’t exist, and provide a political strategy, as appropriate. Having this deep bench can help deter, deflect or at least better inform investigative activity. In an M&A context, Members of Congress have proven to be effective at influencing perception in the White House and among agency leadership.

• Senators are acutely focused on impacts to their states, then the nation; while House Committee leaders are focused on national issues. Calibrate your engagement accordingly. Ensure you have a plan to reach these important leaders, with the background, messages, statements, and commitments that will resonate, on Day One when you announce a transaction. Better yet, be in touch before the announcement if permissible.

• Understand how sensitive issues travel online. Today’s regulators and Members of the majority in Congress are hyper-focused on how high-profile issues are reflected back to them through their constituents online. It is essential to understand who has influence online and who does not, as well as how online actors and their respective follower-base are connected. This helps see around corners and anticipate where an online dialogue is headed next.

Dan Scorpio is a managing director and the Head of M&A at H/Advisors Abernathy. Mike Hotra is a managing director and Head of the firm’s Washington, D.C. Office. Ashley Callen is partner and Co-chair of the Congressional Investigations practice at Jenner & Block as well as former General Counsel to Speaker Mike Johnson and Leader Steve Scalise. Tim FitzSimons is a partner in King & Spalding’s Corporate practice, focusing on M&A and corporate governance matters.