The Death of the Tunney Act at the Hands of an Activist D.C. Circuit
24 Pages Posted: 30 Apr 2018 Last revised: 17 Aug 2018
Date Written: April 11, 2018
The Tunney Act and its 2004 Amendment have sought to eliminate judicial rubber-stamping of anti-trust consent decrees. Congress sought to assure meaningful judicial review of consent decrees to assure they were in the public interest. The caselaw in the D.C. Circuit undermines the purpose, intent, and plain meaning of the Tunney Act by arguing that such review would present separation of powers issues, an argument at best disingenuous in light of other settlements readily rejected within the Circuit. The Article commences with a review of the legislative history of the original Tunney Act. The article next examines the D.C. Circuit cases against that the drafters of the Amendment to the Tunney Act are rebelling. This legislative history is highlighted and extended in the legislative history of the 2004 Tunney Act Amendment. The article next describes how D.C. district courts uniformly ignore and dismiss the Congressional intent behind the 2004 Amendment under the auspices of prosecutorial discretion. Finally, the Article tackles the (false) problem of separation of powers the D.C. Circuit case law presents and proposes a solution to this deadlock that is true to the original intent of the Tunney Act.
Keywords: Antitrust, competition policy, mergers, consent decrees, Tunney Act
JEL Classification: L4, L40
Suggested Citation: Suggested Citation