Key Points
- Antitrust authorities around the globe have shown increased openness to merger remedies, including behavioral ones.
- In the U.S., the Trump administration has been more willing than the previous administration to engage in remedy negotiations, both structural and behavioral.
- European antitrust agencies have traditionally favored structural remedies, but recent developments, particularly in the U.K., signal a growing willingness to accept behavioral and mixed remedies. The new merger guidelines in the EU may also translate into a more flexible approach.
- In China, high-profile global transactions involving U.S. companies continue to be approved despite geopolitical uncertainty. In other Asia Pacific jurisdictions like South Korea and the Philippines, digital platform transactions have driven an increased use of behavioral commitments.
- Companies pursuing complex cross-border transactions should consider preparing remedy strategies early.
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Antitrust authorities in the United States, Europe and Asia have shown increased openness to merger remedies, including behavioral ones. Companies pursuing complex cross-border transactions should consider preparing remedy strategies early and devising a consistent advocacy narrative, with jurisdiction-specific tailoring if necessary, based on efficiencies, customer benefits and the fulfillment of broader policy objectives.
United States: An Increased Acceptance of Remedies Under the Trump Administration
In the U.S., the Trump administration has increasingly accepted remedies — primarily structural but also behavioral — to resolve merger and conduct investigations, in sharp contrast to the Biden administration.
So far, during the Trump administration, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have resolved 16 merger investigations with remedies. By contrast, the previous administration’s DOJ resolved only one merger investigation via a consent decree.
The recent enforcement activity and public remarks from agency leadership demonstrate that both DOJ and FTC will be receptive to remedy negotiations that resolve competition concerns, with a preference for structural remedies.
The first 18 months of the Trump administration have included a number of merger and conduct cases resolved via consent decree. Both DOJ and FTC have approved a series of transactions subject to traditional structural remedies, including Synopsys’ acquisition of Ansys and Constellation’s acquisition of Calpine.
In HPE/Juniper, DOJ adopted a hybrid remedy, including a divestiture of an HPE business line, as well as a license to Juniper’s wireless local area network (WLAN) software’s source code. And in Omnicom’s acquisition of IPG, which created the world’s largest media buying agency, FTC required behavioral commitments that restricted the company from engaging in collusion or coordination to direct advertising away from media publishers based on the publishers’ political or ideological viewpoints.
The agencies have also utilized remedies to resolve several high-profile conduct litigations, including suits against Live Nation, Agri Stats, RealPage and Express Scripts.
Statements by agency leadership underscore the willingness to engage in remedy discussions early in investigations. At a May 2026 workshop on “eleventh-hour” remedy proposals, FTC Chairman Andrew Ferguson said that the agencies should “entertain [remedy] proposals in good faith,” emphasizing a preference for early and open engagement with fixes during the merger review process rather than proposing them to the court during litigation (so-called “litigating the fix”).
Similarly, in a May 2026 speech at New York University School of Law, Acting Assistant Attorney General Omeed Assefi reiterated DOJ’s openness to consent decrees that resolve competition concerns, with a preference for structural remedies, while emphasizing a willingness to litigate when proposed fixes fail to address competitive concerns.
Europe: A Shifting Approach to Merger Control Remedies
European antitrust agencies have traditionally favored structural remedies — primarily divestitures — when conditionally approving transactions. Upfront buyer and fix-it-first structures have been present in more than half of the remedy cases before the European Commission (EC) and the U.K. Competition and Markets Authority (CMA) since January 2024.
Behavioral remedies, which govern the merged entity’s future conduct, have been viewed by these antitrust agencies as less effective and harder to monitor.
The CMA has, however, recently signaled a notable shift in its willingness to accept behavioral and complex remedies. In Vodafone/Three (December 2024), the regulator accepted a package of behavioral remedies in a four-to-three mobile telecoms merger — including network investment commitments, tariff caps and wholesale access terms — marking the first behavioral remedy accepted in Phase 2 since 2020.
In addition, in Schlumberger/ChampionX (July 2025), the CMA cleared a complex package of structural carve-out and behavioral remedies in Phase 1, departing from its usual preference for cleaner structural solutions. The CMA’s revised merger remedies guidance, published in December 2025, formalizes this more flexible position, indicating a wider scope for behavioral commitments and remedies aimed at securing efficiencies and promoting or protecting customer benefits.
In the European Union, since 2024, the EC has cleared 20 cases subject to remedies — all involving structural solutions. The EC is currently updating its merger guidelines (due to be formally released by the end of 2026) to place greater emphasis on dynamic effects and efficiencies as well as on scale, innovation and investment benefits.
While the draft guidelines do not directly address remedies, they carry significant practical implications. The EC’s substantive assessment in merger control cases under the new guidelines may become more forward-looking in the context of wider policy goals. The prominence of nonstructural commitments may increase as a result, and the design of structural remedies may be reshaped to reflect the dynamic competitive assessment that the draft guidelines advocate for.
Asia Pacific: Behavioral Remedies Gain More Ground, Following China’s Lead
Across the Asia Pacific region, merger control authorities have long been more open to deploying behavioral remedies alongside or in lieu of traditional structural remedies, participating in broader global trends while adapting to local competition dynamics and industrial policies.
China remains the most significant Asian jurisdiction for global dealmakers, as lengthy reviews have been a hallmark of China’s review process since its adoption nearly two decades ago. In addition, China’s statutory mandate to consider noncompetition aspects of a transaction — such as the impact of a transaction on the national economy — have raised additional issues surrounding timing and certainty in China merger control reviews.
Nevertheless, China has continued to approve high-profile global transactions involving U.S. and other foreign companies, with an increase in approvals coming in the first 18 months of the Trump administration. Critically, China’s simplified review procedure remains a fast track to Phase I clearance for cases that present no competition or industrial policy issues. More politically sensitive deals have still been able to receive approval where the parties have conducted careful advance planning and developed a strategy for approval.
Behavioral remedies provide a flexible tool to address China-specific transaction concerns, especially those outside of the traditional competition space, where structural remedies may be overly destructive of deal value or fail to accomplish long-term industrial policy aims.
Following China’s historic pioneering of the widespread use of behavioral remedies, other jurisdictions in the region have begun to adopt behavioral remedies as well, particularly in digital platform transactions. South Korea and the Philippines have increasingly utilized behavioral commitments to address competition concerns in e-commerce, online streaming and digital payment markets. Vietnam and Indonesia have adopted softer, reporting-type remedies focused on customer agreements, pricing and manufacturing conditions.
Japan generally continues to prefer structural remedies, though behavioral remedies are permitted in limited circumstances. Those have included long-term commitments to license critical intellectual property (IP) rights, supply goods to third parties at cost or enable new market entries and imports.
In India, while structural remedies continue to constitute a sizeable proportion of remedy cases, the Competition Commission of India has demonstrated its willingness to accept behavioral or hybrid remedies where appropriate, reflecting a pragmatic approach that aligns with the broader global trend toward remedy flexibility.
Listen to the latest episode of Skadden’s “Fierce Competition” podcast, “Recent Merger Control Developments Around the World.”
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