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Journal of Competition Law and Economics Advance Access originally published online on August 30, 2007
Journal of Competition Law and Economics 2007 3(3):471-490; doi:10.1093/joclec/nhm019
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© The Author (2007). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
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SHOULD ANTITRUST CONSENT DECREES REGULATE POST-MERGER PRICING?

Farrell Malone{dagger} and J. Gregory Sidak {dagger}{dagger}

Correspondence: {dagger} Associate, Cleary Gottlieb Steen & Hamilton, Washington, D.C. E-mail: farrellmalone{at}gmail.com

Competitors proposing to merge sometimes propose price regulation in a consent decree as a condition of receiving merger approval. Antitrust enforcement agencies in the United States have been reluctant to use such price-regulating decrees, as they suffer from practical problems in implementation. It is less recognized, however, that the use of consent decrees to regulate post-merger prices may be unlawful. Such decrees exceed the scope of antitrust law and blur the distinction between the legislative power to regulate prices and the executive power to enforce the antitrust laws. Despite the willingness of merging parties to accept price regulation in consent decrees, economic and constitutional considerations counsel against antitrust enforcement agencies adopting this practice.

{dagger}{dagger} Visiting Professor of Law, Georgetown University Law Center. E-mail: jgsidak@aol.com. Copyright 2007 by Farrell Malone and J. Gregory Sidak. All rights reserved. Sidak has filed expert testimony to the Federal Communications Commission on behalf of the Consumer Coalition for Competitive Satellite Radio concerning the proposed merger of XM and Sirius, discussed herein.


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