Antitrust

The Federal Trade Commission’s (FTC) recent decision to challenge a merger exclusively in federal court marks a significant departure from its past use of its in-house administrative court process and, if sustained, could recalibrate the legal standards and practical dynamics of FTC merger cases. On December 11, 2025, the FTC sued in the Southern District of New York to block Henkel AG & Co.’s proposed acquisition of Liquid Nails, alleging harm to competition for construction adhesives. Rather than pair an administrative court process with a preliminary injunction action in federal court, the FTC is proceeding directly to a merits trial in federal court. That choice is more than procedural; it engages a long-running debate over divergent FTC and Department of Justice (DOJ) merger enforcement standards, deal timing uncertainty, and the role of administrative courts in merger challenges. It remains to be seen whether Henkel represents a permanent shift in the FTC’s approach to merger litigation or is merely a one-off.

FTC vs. DOJ: The Two Paths of Merger Enforcement 

The FTC and DOJ have typically pursued different approaches to merger challenges. The FTC has relied on a two-track process, first seeking a preliminary injunction in federal court to temporarily stop deals from closing so that it may later litigate the merits in the FTC’s in-house administrative court.[1] As a practical matter, however, FTC merger challenges are often decided at the preliminary injunction stage, where courts evaluate only whether the FTC has raised questions so “serious, substantial, difficult, and doubtful” about the merger’s legality to warrant a subsequent administrative proceeding—a standard that the FTC has argued may enjoin a merger without necessarily resolving the merger’s ultimate merits. If a merger challenge were to proceed after a preliminary injunction, the FTC would then head to a merits trial before its in-house administrative law judge, whose decision is appealable to the full Commission—the same body that authorized the complaint in the first instance. 

The DOJ, on the other hand, lacks an in-house administrative court and pursues preliminary and permanent relief together in federal court.[2] That structure requires the DOJ to prove its case on the merits before an Article III judge, subject to the traditional standards governing injunctive relief and federal appellate review.

These differences are not merely procedural. The two frameworks may create the appearance of unfairness and asymmetry. The FTC’s approach has been criticized for providing the agency with a litigation advantage, allowing the agency to block transactions with an arguably lower evidentiary standard than the DOJ, and then litigate the merits in its home court with appeals heard by the same body that greenlighted the suit. Critics claim that the different forums and potentially divergent legal standards could lead to different results in similar cases, raising due process concerns.

Responses to Divergent Standards in US Merger Litigation 

Various legislative proposals in Congress have attempted to respond to these criticisms. The Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act, last introduced in 2020, sought to harmonize FTC and DOJ procedures by requiring the FTC to challenge mergers in the same manner as the DOJ, effectively eliminating the FTC’s administrative court process for mergers. More recently, the One Agency Act, introduced in 2025, goes even further by proposing to transfer all antitrust enforcement authority from the FTC to the DOJ.  

The debate over the FTC’s in-house administrative court is also part of a broader constitutional debate about the propriety of adjudication outside of Article III courts and Congress’s role in dictating the judicial forum. In SEC v. Jarkesy, a case that was ultimately decided by the Supreme Court on other grounds, the Fifth Circuit found that Congress violated the nondelegation doctrine by permitting the Securities and Exchange Commission to choose whether to bring proceedings in federal court or via its internal administrative court. Such discretion, the Fifth Circuit found, violated Article I by providing the SEC with legislative discretion that is constitutionally reserved for Congress. The Court further found an Article II violation in the statutory removal limitations for SEC administrative law judges. The Supreme Court resolved Jarkesy on Seventh Amendment grounds and did not reach the remaining constitutional questions raised by the Fifth Circuit, but the Fifth Circuit’s reasoning could apply to the FTC.

Against this backdrop of legislative pressure and constitutional uncertainty, Henkel may be more than a litigation strategy—it may represent an institutional hedge. By appeasing current critics of arguably divergent merger litigation standards, the FTC may preserve its statutory authority. On the other hand, such a move does not resolve the philosophical questions about the utility of two federal antitrust agencies.

What Does Henkel Mean for Future FTC Merger Litigation?

• Potential for More Certainty and More Definitive Timing Without Double Litigation. A single federal court proceeding that resolves the merits of a merger—whether a deal is being reviewed by the FTC or DOJ—could bring more predictability and less delay to the merger review process.
• FTC May Face Fewer Constitutional Challenges. The FTC’s decision to bring a permanent injunction action in federal court could be a response to several recent constitutional challenges to the FTC’s administrative process filed in the wake of Jarkesy. Those challenges echo the Fifth Circuit’s reasoning, raising Article I nondelegation concerns and Article II concerns regarding limitations on removal of the FTC’s administrative law judges, among others. By foregoing its administrative court process, the FTC may shut down these lines of attack.
• FTC May Face a Higher Burden of Proof. Courts have routinely relied on the “serious, substantial, difficult, and doubtful” questions standard in granting the FTC preliminary injunctions. In a merits trial for a permanent injunction, the FTC would not have the benefit of this relatively forgiving standard. Additionally, it may be more difficult for the FTC to rely on its past preliminary injunction case precedent in permanent injunction cases.
• Merging Parties May Face Somewhat Improved Odds Against the FTC. Merging parties may have a higher likelihood of success against the FTC in a permanent injunction posture versus a preliminary injunction case. The empirical evidence on this point, however, is mixed. Since 2015, the DOJ has won 55% of its litigated permanent injunction merger cases, while the FTC has won ~62% of its preliminary injunction merger cases (including on appeal)—only slightly higher winning odds than the DOJ.[3] This suggests that outcomes in merger litigation remain driven primarily by structural market factors and evidentiary strength, rather than procedural standards.

*Weil associate, Sam Fujikawa, contributed to the contents of this post.

[1] While there is precedent for the FTC seeking a permanent injunction in federal court—such as in St. Alphonsus Medical Center v. St. Luke’s Health Systems—this process was driven by distinct circumstances, including the involvement of Idaho state attorney general.

[2] In at least one instance, DOJ and merging parties agreed to arbitrate their merger challenge. See United States v. Novelis Inc., No. 1:19-cv-02033 (N.D. Ohio Sept. 9, 2019). However, this has been the exception rather than the norm.

[3] Weil Analysis.