On July 31, 2026, the Federal Trade Commission (FTC or Commission) closed its investigation into possible vertical antitrust concerns from IonQ Inc.’s (IonQ) proposed $1.8 billion acquisition of SkyWater Technologies Inc. (SkyWater).¹ IonQ is a developer of quantum computers; SkyWater is a supplier of quantum computer chip fabrication and development services that are inputs for quantum computers. The FTC’s only two Commissioners, Chairman Andrew Ferguson and Mark Meador, each released public statements detailing opposing views on whether to clear the transaction without a remedy.² Because a tied vote of the Commission is insufficient for a challenge,³ the outcome was an early termination of the Second Request waiting period, allowing the parties to close the transaction.⁴

The Commission granted early termination of the waiting period just six months after the transaction was announced on January 26,⁵ with Ferguson concluding that “[i]n the absence of a majority-approved Order, the next best option is to get out of the way and permit the merger to close so that the likely benefits for competition and innovation may swiftly be realized.”⁶ That is very fast for a transaction that received a Second Request and raised complex issues. Many similarly complex transactions have resulted in reviews of nine to 12 months or longer. This outcome is part of a welcome trend of the US antitrust agencies seeking to expedite merger reviews and terminate them as promptly as feasible, as evidenced by the US Department of Justice Antitrust Division’s newly announced model timing agreement for Second Requests.⁷

The Commissioners’ statements are thoughtful and worthy of study. They both provide valuable insights into the Commissioners’ views regarding substantive and remedial issues in vertical merger enforcement. The statements bring more clarity on issues about which there has been significant uncertainty, especially in rapidly changing industries. We discuss below three aspects of the Commissioners’ statements, emphasizing what they may portend for businesses contemplating potentially controversial vertical transactions during the current FTC regime.

The Commissioners’ Statements

Evaluating vertical mergers based on evidence, not ideology. Both Commissioners made clear that they are not ideologically opposed to vigorous enforcement against vertical mergers. Ferguson wrote, “I harbor reservations about Judge Bork’s belief that vertical integration is always good for the American economy (take, for example, vertical integration in American healthcare markets).”⁸ Even in voting against challenging the IonQ/SkyWater merger, Meador said that “the 2023 Merger Guidelines wisely raised the profile of [vertical] concerns, and I share Chairman Ferguson’s assessment that certain commentators have overstated the supposed universal felicity of vertical integration.”⁹

The Commissioners’ divergent conclusions were grounded in differences in how they assessed the evidence and balanced concerns regarding potential over- or under-enforcement. Ferguson found that the transaction might harm competition in the short term because (i) the merged firm would have the incentive and ability to refuse to supply or disfavor IonQ quantum computer rivals regarding SkyWater’s chips and services, with particular potential to impede current SkyWater customers that would have difficulty in quickly and effectively switching to a SkyWater competitor; and (ii) IonQ would gain access to confidential information of its competitors that work with SkyWater.¹⁰

Meador, conversely, concluded that the “evidence available was insufficient to demonstrate that the effect of the transaction may be to substantially lessen competition, and on the contrary suggests that the transaction would be procompetitive or neutral in its effects.”¹¹ He identified four factors leading to this conclusion: (i) the share of the semiconductor foundry services market that IonQ could foreclose by acquiring SkyWater fell “well below the legal threshold for substantial foreclosure” of 50%;¹² (ii) IonQ’s quantum computer rivals did not need SkyWater’s semiconductor foundry services to compete effectively; (iii) any anticompetitive effects could only be short term; and (iv) the Trump Administration’s policies would ensure “a diverse and dynamic quantum computing industry.”¹³

Weighing potential procompetitive benefits and anticompetitive harm and remedies. In gauging antitrust risk for transactions between businesses in a vertical relationship, a vital consideration is how a reviewing antitrust authority is likely to weigh concerns about potential harm against consideration of potential procompetitive benefits from the transaction. For instance, for a merger between an input supplier and a downstream business that uses those inputs, are the authorities likely to prioritize concerns that the merged firm might have the ability and incentive to foreclose its rivals (e.g., by refusing to supply a critical input or supplying only on unfavorable terms) over the procompetitive benefits of integration? In practice, the question of whether the authority, if it decides to challenge the transaction, will be willing to settle based on a behavioral remedy (e.g., a supply commitment and information firewall) or will instead demand a divestiture will sometimes be at least as important as whether the authority will have concerns in the first place.

On the issue of remedy, Ferguson, who would have challenged the merger, observed: “My colleague and I firmly agree that a lawsuit to enjoin this merger entirely would be an imprudent use of the agency’s resources.”¹⁴ He articulated with some specificity the potential procompetitive benefits of IonQ/SkyWater and other vertical mergers, including reducing transaction costs, eliminating double marginalization and increasing incentives to innovate.¹⁵ He concluded that the “deal warranted a behavioral remedy which would have cured the short-term risks to competition while facilitating the deal’s long-term benefits.”¹⁶

Nevertheless, both Commissioners made clear that they harbor some skepticism about behavioral remedies in merger cases. Meador concluded, “I cannot support what would amount to a regulatory intervention by the Commission into a highly competitive and dynamic innovation market” given that he did not believe the evidence showed that “the effect of the transaction may be to substantially lessen competition.”¹⁷ Ferguson observed that while “[i]n vertical-merger cases . . . settlements will often involve behavioral remedies[,] I have expressed skepticism about behavioral remedies in merger cases before, and I retain that skepticism.”¹⁸ But he added that “skepticism cannot mean that behavioral remedies are off the table.” That is both because “they sometimes allow for a socially beneficial outcome that mitigates the harms from a vertical merger while allowing the benefits to be achieved” and, more pragmatically, “the government has lost multiple vertical-merger cases in the last decade in no small part on the basis of unilateral behavioral remedies proposed by the merging parties.”¹⁹ 

These statements confirm that the Commission may be receptive to well-demonstrated procompetitive benefits as a reason not to challenge a merger or to accept behavioral remedies rather than demand a divestiture.

Consideration of Trump Administration policy. FTC Commissioners have traditionally articulated their reasoning in merger cases with reference to the question of whether a proposed merger might harm US consumers in a relevant market, not broader presidential or national policy objectives. Both Commissioners did that here. But Ferguson also argued that his preferred outcome of requiring a behavioral remedy to clear the transaction would “protect long-term American dominance in quantum computing consistent with President Donald Trump’s policy objectives.”²⁰ Meador several times referenced Trump Administration policy as a factor in his substantive analysis. For instance, he wrote that “[a]ny lingering worry that the transaction could impair industry access to fabrication or critical inputs is further tempered by the significant and unprecedented strategic investment the Trump Administration has made to expand domestic quantum manufacturing, research, and commercialization capacity.”²¹

Implications

The outcome in IonQ/SkyWater and the Commissioners’ statements have important implications for businesses contemplating vertical transactions that may receive substantial FTC antitrust scrutiny:

• In some circumstances, the FTC may be open to closing significant vertical merger investigations on a quicker timeline than might have been feasible in the past.
• The FTC will aggressively investigate and potentially challenge vertical mergers that may be anticompetitive. The current Commissioners are not aligned on an anti-interventionist philosophy that vertical mergers can never or almost never harm competition.
• The current Commission may be receptive to arguments that a vertical merger will benefit competition and may rely on such arguments to decline to challenge a merger or clear a merger based on a behavioral, rather than a divestiture, remedy. But to be credited, those arguments must be well-grounded in the facts of the case. Parties must be prepared to show, not just tell, why their merger will have procompetitive benefits. 
• The current Commissioners may be open to arguments that a merger will further Trump Administration policy or that the Administration’s policy is a factor cutting against antitrust concerns.

WilmerHale’s leading Antitrust Practice includes a deep bench of practitioners with FTC leadership experience. Our team is standing by to address questions on the current regulatory landscape and to assist clients with navigating merger review.