On April 24, 2026, the Department of Justice's Antitrust Division formally submitted its response to public comments regarding the proposed final judgment in the case of United States et al. v. Constellation Energy Corporation, Inc. et al. This action, filed with the United States District Court for the District of Columbia, underscores the government's steadfast position that its proposed settlement effectively addresses antitrust concerns arising from Constellation's planned acquisition of Calpine Corporation. The development marks a critical juncture in a significant federal antitrust proceeding, aiming to protect competition in vital electricity markets.
The Core of the Antitrust Challenge
The case, Civil Action No. 1:25-cv-04235, originated on December 5, 2025, when the United States, joined by the State of Texas, filed a civil antitrust complaint. The complaint sought to block Constellation's proposed acquisition of Calpine, alleging that the transaction would substantially lessen competition. This claim was brought under Section 7 of the Clayton Act, a key piece of legislation designed to prevent mergers and acquisitions that could harm competitive markets. The government specifically identified two major areas where competition was at risk: the Electric Reliability Council of Texas (ERCOT), which covers most of Texas, and the PJM Coastal Mid-Atlantic region. The PJM area encompasses parts of southeastern Pennsylvania, New Jersey, Delaware, and the eastern shores of Maryland and Virginia, highlighting the broad geographic scope and strategic importance of the markets in question.
Proposed Resolution: The Divestiture Plan
To remedy the alleged anticompetitive effects, the proposed final judgment mandates that the defendants divest seven electric generating facilities. These facilities, termed the "Divestiture Assets," are situated within the ERCOT and PJM interconnection grids. The requirement is that these assets be sold to acquirers acceptable to the United States. This strategic divestiture is designed to restore the competition that the acquisition was alleged to diminish, ensuring that consumers and other market participants continue to benefit from competitive wholesale electricity prices and services. The government's filing of the proposed judgment coincided with the complaint, alongside an Asset Preservation and Hold Separate Stipulation and Order, indicating a proactive approach to maintaining market integrity throughout the review process.
The Tunney Act Framework
The federal government's process for reviewing consent judgments in antitrust cases is governed by the Antitrust Procedures and Penalties Act, commonly known as the Tunney Act. This act, codified at 15 U.S.C. 16(b)-(h), requires a 60-day public comment period on proposed consent judgments. In this instance, the United States published the complaint, the proposed final judgment, and a Competitive Impact Statement in the Federal Register on December 18, 2025. Notices were also placed in major newspapers, inviting public feedback. The government received only one public comment during this period. After careful consideration of this comment, the Department of Justice concluded that the proposed final judgment remains in the public interest.
Judicial Scrutiny and Public Interest
Under the Tunney Act, the court's role in reviewing such settlements is distinct and deliberately limited. The statute requires the court to determine whether the proposed final judgment "is in the public interest." However, appellate courts, including the D.C. Circuit Court of Appeals, have repeatedly emphasized that this inquiry is a narrow one. Courts must give "broad discretion" and "due respect" to the Attorney General's assessment of the case and the efficacy of the proposed remedies. As held in cases like United States v. Microsoft Corp., courts are not to conduct a de novo factual determination or substitute their judgment for that of the government. They assess whether the proposed remedies are reasonably adequate for the alleged harms and whether the government's conclusions are reasonable. The court's authority is essentially binary: it can approve the judgment if it falls within the "reaches of the public interest" or reject it. It cannot, however, redraft the complaint or the settlement terms. This framework acknowledges the executive branch's prosecutorial discretion and its expertise in complex antitrust enforcement actions.
DOJ's Affirmation
Despite receiving a public comment, the United States has reiterated its confidence in the proposed final judgment. The Antitrust Division maintains that the divestiture of the seven electric generating facilities will effectively address the lost competition identified in the complaint. The government's response indicates that it continues to believe the settlement provides an "effective and appropriate remedy" for the alleged antitrust violation. Following the publication of this response in the Federal Register, the United States will move for the court to formally enter the proposed final judgment, signifying the final step before the terms of the settlement are legally binding.
