Energy and Our World

This article originally ran on Forbes.com on October 7, 2025. All rights reserved.

Daniel B. Markind is a Forbes.com energy column contributor. The views expressed in this article are not to be associated with the views of Flaster Greenberg PC.

Earlier this year a self-described radical consumer advocate group named New Energy Economy blocked a proposed deal by TXNM, a holding company for regulated utilities in New Mexico, in which TXNM would sell its power to Avangrid, a US subsidiary of the Spanish electric company named Iberdrola. New Energy managed to accomplish this by ensnaring the proposed agreement, among other places, in proceedings before the New Mexico Supreme Court. (Source).

Now, that same group is challenging Blackstone’s attempts to enter the data center market in New Mexico. Blackstone has moved aggressively to announce its interest to acquire data centers, including in energy rich Pennsylvania. (Source). This will likely also pique the interest of regulators.

Despite being tougher on corporate mergers than many thought at the inauguration, the Trump Administration has been willing to approve deals that it finds to be more favorable to consumers and the national interest. Among those, for example, is the recent settlement agreement with HPE (Hewlett Packard) and Juniper Networks, Inc. (Source). This transaction doubled the size of HPE’s networking business, added to its overall abilities regarding AI, and established a stronger competitor to China’s Huawei.

In approving the deal, which has immense applications for energy use (as with all AI issues), the Trump DOJ withstood substantial pressure from outside groups demanding that it be blocked or delayed. The Administration did, however, require HPE to divest certain businesses and also to make key software assets available to rivals looking to compete, notwithstanding substantial pressure from outside to block or delay it.

Notwithstanding the Administration’s approval and the settlement, that outside pressure has not subsided. Outside groups and others continue to generate demands for further review. For example, in July, two DOJ officials were fired for attempting to usurp DOJ’s overall authority and stop the merger themselves. (Source). In addition, several Democratic senators, led by Elizabeth Warren, have demanded hearings to be held to investigate the settlement.

In addition, in September, California attorney general Rob Bonta announced that he is joining a coalition of twenty Democratic attorneys general who are themselves challenging the “corrupt” DOJ approval process, (Source), claiming that the DOJ settlement somehow involves “backroom deals with their buddy lobbyists…”

While the HPE-Juniper merger does not, in and of itself, deal with energy companies, in a world where nearly every major merger will have substantial implications for energy use, as well as storage, any revival of this case would be problematic, and could set a dangerous precedent that might, ironically, diminish the very powers that the DOJ seeks to preserve and utilize. This is especially significant as shale companies increasingly discuss mergers themselves with more established oil and gas companies, as well as each other, and pipeline and other infrastructure companies are seeking to properly position themselves for the future energy environment as well.

After combining, the HPE-Juniper merged entity still would fall below the venerable 30% market share threshold to avoid monopolization issues originally set in 1963 and often cited as the “Philadelphia National Bank” standard. This longstanding standard is even cited in the DOJ’s 2023 merger guidelines, which both Trump Antitrust Division Chief of Staff Gail Slater and FTC Chair Andrew Ferguson have pledged to uphold. (Source). Thus, instead of engaging in illegal backroom deals, as its detractors have alleged, it appears that the Trump Administration is simply approving a merger that passed the very tough-on-monopoly standards that notoriously tough antitrust enforcers who were skeptical of corporate power created just two years ago.

Despite the above, should the DOJ stretch the standard to provide heightened scrutiny to the HPE case, in particular, or if it decided to ignore these merger standards and shut the door on HPE-Juniper, it could adversely effect the DOJ’s ability to enforce Section 7 of the Clayton Act, which generally allows the DOJ to stop mergers that “may substantially lessen competition” even before any merger actually occurs. This is because the Courts may view the DOJ’s enforcement less favorably should it interject itself in more modest mergers that do not meet the 30% Philadelphia National Bank standard, or other traditional tests.

Perhaps the moral of this story is this: Sometimes there is wisdom in dropping matters before they reach the courts instead of risking judicial review of decisions that could have the impact of diminishing future jurisdiction. With innumerable large mergers likely to be coming up in the next few years for many in the energy sector (see, e.g. Chevron’s recently completed merger with Hess Corporation), it appears wiser for the DOJ to hold fast to this logic, which seems to follow traditional antitrust approval standards, rather than spend precious resources on curious challenges after the fact whose overall public interest may be difficult to discern.