The idea that transparency is crucial for good democratic government is neither novel nor controversial. In the context of antitrust enforcement, transparency has two related but distinct aspects. Procedural transparency can refer to agencies outlining clear processes that businesses must follow to comply with the antitrust laws. This is similar to the notion of due process, which is enshrined as a tenet of the United States Constitution. Substantive transparency refers to agencies allowing for more predictable outcomes and efficient compliance by enforcing clear legal standards developed through established legal principles. Substantive and procedural transparency are both essential components of effective antitrust enforcement. As former Assistant Attorney General (AAG) Christine Varney stated, “complaints about process lead to concern that substantive results are flawed, whereas a fair, predictable, and transparent process bolsters the legitimacy of the substantive outcome.”
In both respects, and regardless of the appropriate level or contours of antitrust enforcement—which we will not debate here—transparency in enforcement provides legal certainty for businesses, facilitating antitrust compliance through predictable processes and results without unnecessarily chilling legitimate, procompetitive conduct.
In this article, we discuss the state of procedural and substantive transparency in antitrust enforcement. We focus on the United States, but this analysis would not be complete without an evaluation of how other agencies approach the topic with respect to their decision-making. This article is divided into four Parts. We start with a foundational analysis of the importance of transparency in antitrust enforcement (Part I). We then describe the ways in which EU and UK competition authorities provide transparency to the legal community, businesses, and individuals, giving a perspective on the advantages and disadvantages of the various regimes (Part II). Next, we turn to the U.S. system, and we describe what the Department of Justice Antitrust Division and the Federal Trade Commission do today to enhance transparency as well as challenges to transparency at the agencies (Part III). And finally, we describe opportunities for improvement to transparency in competition enforcement (Part IV).
Continue reading the full text of this article in PDF format.
