United States Department of Justice, Antitrust Division Public Roundtable Series on the Relationship between Competition and Regulation, Second Roundtable – On Consent Decrees: Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

The Comment outlines the basic economic analysis that applies to agency consideration of whether to resolve cases by consent decree or by litigation. It describes past experience with government antitrust decrees that required modification or termination due to the passage of time or significant changes in the affected markets, as well as certain decrees whose effectiveness in serving antitrust objectives was questionable even at the time of initial entry. The Comment points out certain dangers to the consumer interest in vigorous competition that are associated with excessive agency reliance on consent decrees, and recommends institutional vigilance as a safeguard against such dangers. Finally, the Comment notes the continuing potential value of so-called conduct remedies, as distinct from structural remedies, particularly in the context of vertical acquisitions, while recognizing that structural remedies are properly accepted as the preferable mode of relief, especially in cases involving horizontal acquisitions.