On May 20, 2026, the Federal Trade Commission (FTC) hosted “Eleventh-Hour Antitrust Remedy Proposals and Litigating the Fix” Workshop, which provided meaningful insight into how the agency is likely to approach merger remedies under its current leadership. Chairman Andrew Ferguson delivered the opening remarks, and Commissioner Mark Meador gave the closing remarks.

Key Insights

• Early Engagement on Remedies: The FTC repeatedly emphasized that merging parties should raise potential remedies early in the review process to allow thorough evaluation and avoid eleventh-hour “courthouse-steps” proposals as they are increasingly likely to face skepticism from the agency.
• Preference for Structural Fixes: The Commission is more willing to constructively engage on remedies with meaningful structural components, whereas purely behavioral remedies remain disfavored and will continue to face greater scrutiny.
• Litigation Remains an Option: While signaling a more merger-friendly approach than its predecessor, the current FTC is prepared to litigate rather than accept late-arriving remedies that do not adequately resolve harms that a transaction poses to competition.

The workshop reflects a broader effort by the FTC to re-establish negotiated remedies as a viable component of merger review after a policy of skepticism toward settlements under the Biden administration. At the same time, FTC leadership made clear that the agency’s renewed openness to remedies will be paired with significant procedural and substantive expectations for merging parties, particularly where remedies are proposed late in an investigation and/or do not adequately redress the competition concerns arising from the transaction.

Rehabilitating the Remedy Process 

When the FTC or Department of Justice (DOJ) determines that a proposed transaction raises competitive concerns, the parties and reviewing agency have historically considered whether those concerns could be resolved through negotiated remedies, typically favoring structural divestitures over behavioral conduct commitments.

Throughout the workshop, FTC leadership contrasted the current Commission’s approach with that of the Biden-era antitrust agencies, which Chairman Ferguson and Commissioner Meador characterized as reluctant to engage meaningfully on remedies at all. The previous administration’s strategy resulted in an increase in merging parties’ efforts to “litigate the fix,” where the government challenges in court both the original transaction and the transaction as modified by remedies proposed by the parties. Chairman Ferguson explained that litigating the fix is a costly, high-risk strategy that creates uncertainty for all parties, leaving difficult predictive questions about a transaction’s competitive effects—and whether the proposed remedy resolves them—to courts applying inconsistent and highly fact-specific case law.

Current FTC leadership argued that the prior administration’s hostility towards remedies also eroded confidence in the merger review process and discouraged constructive engagement during investigations. Chairman Ferguson emphasized that the current FTC seeks to approach merger review in a more transparent and collaborative manner and remains open to negotiated settlements that adequately replicate lost competition, where parties provide sufficient information and time for review. Commissioner Meador similarly expressed hope that rebuilding trust between the agency and the business community would reduce the costs and uncertainty associated with merger review, while stressing that meaningful engagement requires good-faith participation from both sides.

At the same time, the Commissioners made clear that negotiated remedies are not an entitlement. Rather, the workshop framed remedies as tools that require sufficient agency scrutiny to ensure that a modified transaction alleviates competition concerns arising from the transaction and complies with Section 7 of the Clayton Act.

Timing Matters: The FTC’s Push Against “Courthouse-Steps” Remedies

A central theme of the workshop was the Commission’s strong insistence that parties raise potential remedies early in the merger review process. The FTC was critical of remedies proposed “on the courthouse steps” or near the conclusion of an investigation, arguing that such proposals force the agency to evaluate complex remedial packages while simultaneously preparing to litigate the underlying transaction.

FTC leadership repeatedly framed late-stage remedies as prejudicial to the agency’s review process. Chairman Ferguson noted that the Commission operates with approximately 1,100 employees and a budget of roughly $400 million, limitations that make compressed remedy review particularly difficult. Eleventh-hour proposals can shift negotiating leverage toward merging parties by limiting the Commission’s ability to test assumptions, assess proposed divestiture buyers, and evaluate whether a remedy will preserve competition in practice.

The Commissioners accordingly encouraged parties to raise potential remedies early—ideally before robust engagement in a Second Request process—and to engage transparently with agency staff throughout the investigation. Commissioner Meador stressed that early engagement increases the likelihood that a transaction can be consummated without litigation, by enabling the parties to draw on the FTC’s expertise in evaluating and designing effective remedies to facilitate pro-competitive outcomes. He emphasized that the current administration is far more merger-friendly than its predecessor and that the FTC wants to be constructive rather than punitive: it remains open to negotiated settlements but requires sufficient time to evaluate proposed remedies and their competitive effects.

Substance Over Procedure: What Remedies the FTC Appears Most Likely to Accept

Although the Commissioners repeatedly emphasized that remedies would continue to be assessed on a fact-specific basis, the workshop nonetheless provided insight into the types of remedies the current FTC appears more inclined to accept. Chairman Ferguson signaled a preference for remedies containing meaningful structural components, noting that purely behavioral remedies are granted far less frequently. While the Commission did not articulate a categorical rule favoring structural relief, the discussion reflected continued skepticism toward remedies that solely rely on post-closing conduct obligations or ongoing agency oversight.

The Commissioners made clear that the adequacy of any proposed remedy ultimately turns on whether the modified transaction is likely to substantially lessen competition under Section 7. Chairman Ferguson declined to establish a bright-line threshold for what share of competitive concerns a remedy must resolve, but he made clear that the Commission will litigate where it lacks confidence that a proposed fix will effectively preserve competition. In discussing the agency’s failed challenge to GTCR’s acquisition of Surmodics and the parties’ eleventh-hour remedy proposal, Chairman Ferguson emphasized that the FTC intends to “learn from the past” and will continue to “err in favor of litigating rather than accepting a remedy that does not prevent the lessening of competition.”

365 Retail Markets/Cantaloupe as a Blueprint 

The FTC’s recent conditional approval of 365 Retail Markets’ acquisition of Cantaloupe illustrates the Commissioners’ attitudes towards remedies in merger enforcement. In that matter, the FTC approved a consent order requiring the divestiture of Cantaloupe’s Three Square Market business, alongside behavioral interoperability and nondiscrimination commitments designed to address vertical foreclosure concerns.

The transaction’s remedy reflected key themes emphasized throughout the workshop: the remedy included a significant structural component and was negotiated early in the investigation, providing the Commission with sufficient opportunity to evaluate both the divestiture package and the proposed buyer. Commissioner Meador specifically highlighted the value of that early engagement in his statement endorsing the consent order, reinforcing the agency’s broader message that negotiated settlements remain viable where parties work collaboratively with the Commission before positions harden into litigation.

Key Takeaway

Taken together, the workshop and the Commission’s recent consent activity signal that the FTC under current leadership is seeking to reopen the door to negotiated merger remedies, but on terms that preserve the agency’s ability to evaluate them thoroughly. Parties considering transactions with potential antitrust risk should consider remedy strategies early in the deal process and expect increased emphasis from the agencies on proactive engagement, transparency, and structural solutions to effectively address competition concerns.

For more information, please contact any member of the firm’s Antitrust and Competition practice.