Rethinking the Tunney Act: A Model for Judicial Review of Antitrust Consent Decrees

Abstract

For more than thirty years, the Tunney Act - which governs the judicial review of antitrust consent decrees proposed by the U.S. Department of Justice Antitrust Division - has been a source of controversy, due largely to the open-ended nature of the statute and the ambiguities inherent in it. Judicial and congressional attempts to clarify the Act, while helpful, have failed to provide clear guidance to district courts. However, by examining the Act's text and legislative history, the policy objectives the Act can usefully serve, and the costs of various review options, and by bearing in mind both practical and constitutional limitations as well as analogous administrative law principles, it is possible to design a procedural and substantive model for judicial review of antitrust consent decrees that advances, rather than hinders, effective antitrust enforcement.

Keywords: antitrust, consent decree, Tunney Act, DOJ, merger, APA, administrative

JEL Classification: K21, K23, K41, K42, L40, L44