Discretionary justice in antitrust.

This essay examines the exercise of discretionary justice in antitrust enforcement agencies, focusing on their obligation to explain priorities and key decisions not to pursue investigated matters. Drawing on administrative law scholar Kenneth Culp Davis’s work, it highlights the significant but often unreviewable discretion agencies hold in choosing when to act or refrain from enforcement, particularly in merger reviews. The essay compares U.S. practices—where agencies like the Federal Trade Commission (FTC) and Antitrust Division provide limited transparency and no judicial review of inaction—with approaches in jurisdictions such as the UK and EU, which require formal explanations and allow appeals of non-enforcement decisions. It advocates for reforms including clearer priority-setting, greater transparency through reasoned public statements on decisions not to proceed, and limited judicial review to enhance democratic accountability without undermining prosecutorial discretion.