The Death of the Tunney Act at the Hands of an Activist D.C. Circuit

DOI10.1177/0003603X18756146
Date01 March 2018
Published date01 March 2018
Subject MatterArticles
Article
The Death of the Tunney Act
at the Hands of an Activist
D.C. Circuit
Darren Bush*
Abstract
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 TunneyAct 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
Consent decrees, Tunney Act, statutory interpretation, settlements
I. Introduction
Consent decrees entered into between merging parties and the U.S. Department of Justice’s (DOJ’s)
Antitrust Division are a long-standing tradition. Merging parties seek to consummate their merger,
while the DOJ seeks to mitigate any anticompetitive harm arising from the merger without the risks
associated with litigation. Consent decrees count as “wins” for purposes of congressional
appropriations.
The Tunney Act process is generally amicable enough. The trouble begins when third parties seek
to inquire about other theories of competitive harm, about the weaknesses of potential remedies, and
*University of Houston Law Center, Houston, TX, USA
Corresponding Author:
Darren Bush, University of Houston Law Center, 4604 Calhoun Road Houston, TX 77204-6060, USA.
Email: dbush@central.uh.edu
The Antitrust Bulletin
2018, Vol. 63(1) 113-136
ªThe Author(s) 2018
Reprints and permission:
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DOI: 10.1177/0003603X18756146
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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.
1
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
be exercised.
2
1. See David Ingram, In U.S. Mergers, No One Waits For This Waiting Period,REUTERS (Mar. 4, 2014), https://
www.reuters.com/article/us-usa-antitrust-tunney-analysis/in-u-s-mergers-no-one-waits-for-this-waiting-period-
idUSBREA240D620140305.
2. 120 CONG REC. 38585 (Dec. 9, 1974) (emphasis added).
114 The Antitrust Bulletin 63(1)

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