about issues the DOJ either investigated and rejected or failed to investigate at all. In such circum-
stances, at least within the D.C. Circuit, objectors typically file comments, to which the DOJ responds.
These comments are cast away, serving no purpose whatsoever, because the D.C. Circuit case law
forbids rejection of a consent decree in most instances.
Worse, oftentimes the merging parties are permitted to consummate the merger even prior to the
required Tunney Act hearing before the court.
According to the Act, the court must hold such hearings
to determine whether the merger is in the public interest. In the D.C. Circuit, absent skullduggery on
the part of the DOJ, the district courts are compelled to answer the public interest question in the
affirmative. Thus, the DOJ can assure merging parties that pre-Tunney hearing consummation is fine
because the chances of a court rejecting the consent decree are zero.
Because of the D.C. Circuit’s horrid track record of total disdain for the Tunney Act, Congress modified
the legislation to compel courts to undertake a more serious review of antitrust consent decrees. At least within
the D.C. Circuit, there has been serious pushback, as the courts within that circuit have held that any mean-
ingful review is unconstitutional because it infringes on the DOJ’s prosecutorial discretion. This protestation
is without concern for the self-inflicted injury to judicial powers caused by compelling entry of a judicial
decree, regardless of content, and contrary to the intent of Congress and plain language of the Tunney Act.
This article proposes a solution to the D.C. Circuit’s (false) separation of powers conundrum. The
solution, quite simply, suggests that there is no such problem. A court may reject or accept a consent
decree. If rejected, the DOJ and merging parties can continue with litigation, or the DOJ can abandon
the case. In other words, this setting is no different than the countless thousands of plea bargains that
are handled in the criminal context. In those instances, courts have broad discretion to reject plea
bargains. The result is that the prosecution can either go to trial—or not. Prosecutorial discretion is
preserved, as are the powers of Article III courts.
This article commences with a review of the legislative history of the original Tunney Act. That
legislativehistory has already beeneloquently described elsewhere, but is repeatedhere as foundation for
the 2004 TunneyAct amendments. SectionIII of the article examinesthe D.C. Circuit cases againstwhich
the drafters of the Amendment to th e Tunney Act are rebelling. Section IV examines t he legislative history
of the2004 Tunney Act Amendment.Section V examineshow the D.C. districtcourts uniformlyignore and
dismiss the congressional intent behind the 2004 Amendment under the auspices of prosecutorial discre-
tion. Section VI tackles the (false) problem of separation of powers the D.C. Circuit case law presents.
Section VII proposes a solution to this deadlock that is true to the original intent of the TunneyAct.
II. A Brief (Legislative) History of the Tunney Act
The Tunney Act, named after Senator John V. Tunney, emerged from scandal surrounding backroom
dealings to settle a DOJ merger challenge. It first became a major issue during hearings on Richard
Kleindienst’s nomination to be attorney general. Senator Tunney expressed outrage at such closed-
door discussions. Senator Tunney decried a
massive behind-closed-doors campaign [that] resulted in halting of the prosecution of the ITT case and its
hasty settlement favorable to the Company. During these hearings, [he] became concerned with the
apparent weakness of the consent decree process which could allow this kind of corporate pressures to
1. See David Ingram, In U.S. Mergers, No One Waits For This Waiting Period,REUTERS (Mar. 4, 2014), https://
2. 120 CONG REC. 38585 (Dec. 9, 1974) (emphasis added).
114 The Antitrust Bulletin 63(1)