The Antitrust Division As a Regulatory Agency: An Enforcement Policy in Transition

The Antitrust Division of the Department of Justice is charged with the responsibility of challenging mergers which have a reasonable probability of substantially lessening competition or tending to create a monopoly. The thesis of this Article is that the Antitrust Division has changed from a traditional, litigation-oriented enforcement agency to a regulatory agency. The Antitrust Division, as an economic regulator, has adopted a negotiational rather than an adversarial posture. The result is an avoidance of lengthy and costly adversarial litigation in exchange for a more efficient resolution of merger issues.

Section I of this Article reviews the original intention of the drafters of the Sherman and Clayton Acts. Section II identifies classical models of regulation. Section III describes and analyzes specific procedures and rules followed by the Division. That section demonstrates how the Division has changed its enforcement posture to that of a de facto regulator, consistent with recognized models of regulation and more recent legislative action.

Finally, section IV concludes with an analysis of how the Division's present review procedures enhance efficiency and clarity in the law and how they are consistent with and supported by the emerging trend of alternative dispute resolution.