The Justice Department and the Antitrust Laws: Law Enforcer or Regulator?

The failure of the Sherman Act to achieve its lofty ambition has been blamed on courts and enforcement agencies that either did not understand or chose to ignore the intent of the US Congress. The role played in antitrust enforcement by the US Department of Justice and its Antitrust Division is examined, with a focus on the relationship between doctrine and the various institutions of antitrust. Changes in doctrine, enforcement activity, and the institutions within the antitrust system have been reflective of shifts in public perceptions about the relevance and purpose of antitrust. The Division has departed from the role of its earlier counterparts and exercises discretion based as much on its perception of sound economic policy as on governing legal standards, in a manner similar to that of regulatory bodies charged with implementing broad standards of public interest. While the Division's current posture and influence may promote efficiency and enhance the quality of antitrust decision making, it also may be abused through the intervention of outside influences.