Antitrust enforcement through regulatory pressure rather than through litigation

Douglas Ginsburg and Joshua Wright have just written this article on the topic. Here's the abstract:

The
beginning of a shift toward a more regulatory and less
litigation-oriented regime of antitrust enforcement was observable by
the mid-1990s, if not earlier. The transition toward this more
bureaucratic approach by antitrust enforcement agencies is the subject
of our analysis. Consent decrees create potential for an enforcement
agency to extract from parties under investigation commitments well
beyond what the agency could obtain in litigation — commitments that may
impair rather than improve competition and thereby harm consumers. The
consequences of such consent decrees, that is, are borne not only by the
parties that are subject to them, but also by consumers and by
non-parties who glean the agency’s enforcement position from the terms
of those decrees. Moreover, consent decrees signal to foreign
competition authorities that such commitments are appropriate and,
consequently, the FTC and the Division lose the ability they might
otherwise have to convince other agencies to minimize their own
departures from the appropriate standard. We proffer that the culture of
consent at antitrust agencies both in the United States and abroad has
had an untoward effect upon the agencies’ selection of cases to bring
and, more certainly, upon the remedies the agencies obtain in settlement
agreements.