As federal antitrust agencies adopt a more hands-off stance toward mergers and corporate conduct, state attorneys general across the United States are increasingly intervening to fill the enforcement gap. Over the past several years, states have expanded their role in challenging large mergers and other anticompetitive practices, signaling a shift in the balance of antitrust enforcement.
During the second Trump administration and continuing under the current Federal Trade Commission (FTC) leadership, states have pursued several high-profile actions. State coalitions sued to block Paramount Skydance’s $110 billion acquisition of Warner Bros. Discovery and Nexstar Media Group’s $6.2 billion merger with Tegna. Other efforts have targeted Hewlett Packard Enterprise’s $14 billion purchase of Juniper Networks, although that attempt was unsuccessful. States have also challenged nonmerger conduct, such as a bipartisan lawsuit that led to an antitrust victory against Live Nation in April, even as the Department of Justice reached a separate settlement with the company.
This growing state activity reflects frustration with federal agencies' perceived leniency. While the FTC under Chair Lina Khan has intensified its focus on regulating corporate power, states have bolstered their independent enforcement efforts and in some cases acted alone. One state antitrust official noted that relying solely on politics to influence federal merger reviews is increasingly ineffective due to the broadened regulatory involvement at the state level.
Business leaders have voiced concerns over what they describe as an inefficient enforcement framework, noting that approval processes now often involve navigating the scrutiny of 50 state attorneys general in addition to federal oversight. Jon Orszag, an economics consultant with experience advising on hundreds of billions of dollars in deals, described the expanded state role as an “invisible tax” on merger activity that could dampen economic growth.
Nevertheless, many experts in the antitrust community see state enforcement as a valuable check on corporate consolidation. William Kovacic, a former FTC chair, described states as “the last guardians” of a robust antitrust system, especially in instances where federal agencies may lack the political will or resources to act.
While states have increased their antitrust staffing from a collective 151 lawyers in 2017, they still operate with significantly fewer resources than federal agencies, which employ roughly 1,000 antitrust and economic experts. The question remains whether states can sustain their expanded role and influence a broad array of cases in the long term.
Historically, states were instrumental in early antitrust enforcement, with Iowa enacting the nation’s first antitrust law in 1888, predating the federal Sherman Act. Recently, rising concerns over Big Tech’s market power spurred renewed activism, including coordinated state actions against Microsoft in the late 1990s and Google in 2019.
States have sought additional resources and legal authority to strengthen their enforcement, including a 2021 letter to Congress signed by 45 attorneys general and the National Association of Attorneys General (NAAG) requesting federal funding. Currently, states face legal and procedural hurdles, such as the burden of securing temporary restraining orders to halt mergers. Colorado Attorney General Phil Weiser has urged Congress to grant states broader powers to more effectively challenge anticompetitive deals.
Critics caution that state enforcement could lose momentum if politically motivated attorneys general face repeated defeats in court. For example, the state-led challenge to Paramount’s merger with Warner Bros. Discovery resulted in a settlement with behavioral remedies, falling short of the structural changes initially sought by California’s Attorney General Rob Bonta.
Despite these challenges, state attorneys general remain committed to strengthening their antitrust role. New York Attorney General Letitia James remarked that when federal enforcement recedes, state officials persist in protecting competition across the nation. As states continue to invest in enforcement capacity and seek legislative support, their influence on the U.S. antitrust landscape is poised to grow.