Relitigating the HPE-Juniper Merger Risks Judicial Overreach

Congress passed the Tunney Act nearly 50 years ago to bring greater accountability to the antitrust settlement process. It was meant to reassure the public that major corporate deals blessed by the Department of Justice would benefit consumers and not be determined by backroom dealmaking.

However, in recent months, a small group of state attorneys general and lawmakers have attempted to expand the statute’s interpretation, pushing courts into relitigating a straightforward case--46--namely the merger of Hewlett Packard Enterprise Co. and Juniper Networks Inc.—that has already been settled.

This undermines the Justice Department’s ability to settle cases and could turn the Tunney Act into something it was never intended to be: a vehicle for activism, threatening not only the efficiency of antitrust enforcement but also the independence of the judiciary itself.

For decades, courts have understood their limited role under the Tunney Act. They may examine whether the Justice Department followed proper procedures, disclosed sufficient information, and explained the rationale behind its decision. The courts have been unambiguous that the law prohibits them from substituting their judgment for the judgment of the Justice Department.

There are extraordinarily few cases in which a court even held a hearing on a Tunney Act motion. The law is clear that a court may not second-guess the agency’s judgment and private parties can’t use the Tunney Act as a last-ditch effort to advance their own economic or policy preferences.

This separation of powers is what allows antitrust enforcement to remain predictable and apolitical.

HPE Deal

The Justice Department’s recent approval of HPE’s acquisition of Juniper is a case in point. Although the settlement has attracted media attention, there are few, if any, sound reasons to question it. The merger was thoroughly reviewed and ultimately cleared after the intelligence community, which emphasized its national security significance, weighed in on the matter.

At a time when Chinese telecom giant Huawei continues to dominate global markets, the federal government found that consolidating two US firms into a stronger competitor serves a strategic purpose transcending short-term market arithmetic.

Even on purely economic grounds, the merger passes the traditional antitrust tests. The combined company’s market share would be below 30%—well under the Philadelphia National Bank threshold that historically triggers heightened antitrust scrutiny. By any reasonable interpretation of precedent, there is no basis for blocking or revisiting the government’s approval.

The settlement clearly addresses any potential competitive concerns. It requires HPE to divest its InstantOn and Wireless Local Area Network business while ensuring that key pieces of its software remain available to its competitors. These terms ensure that anticompetitive, collusive activity couldn’t even be attempted.

Nevertheless, several state attorneys general, led by Colorado’s Phil Weiser, have urged US District Judge Casey Pitts to reopen the case under the Tunney Act and hold evidentiary hearings questioning the government’s reasoning, despite the fact that the legal and national security rationale is well documented.

They point to evidence suggesting that lobbyists pushed for approval or a settlement as a justification to revisit the settlement. But the existence of lobbyists and their role is meaningless. As the former policy director at the Federal Trade Commission, I know from experience that antitrust enforcers hear from lobbyists on every merger case.

The only question for the court is whether the consent decree resolves the competitive concerns addressed in the complaint. In this case, the answer is an unequivocal “yes.”

Why It Matters

If courts adopt this expanded view of the Tunney Act, the process could usher in more lobbyist influence, not less, through a second trial—effectively an open invitation for political actors to intervene in any Justice Department settlement they dislike.

Every future merger, even those resolved through negotiation, could be subjected to months or years of additional litigation simply because one faction of the political class objects to the outcome. Such an interpretation would make it more difficult for the Justice Department to settle cases. Parties settle, in part, to avoid litigation costs. If they know a settlement could face a “Tunney Act trial,” why settle in the first place?

The independence of the courts depends on judicial restraint. Judges earn public confidence not by substituting their policy judgments for those of elected officials, but by applying the law as written. For half a century, courts interpreting the Tunney Act have respected this boundary.

None has rejected a Justice Department settlement under the Act’s “public interest” standard. Even holding a Tunney Act hearing is an extraordinary event. This isn’t an accident.

The courts should reaffirm what Congress intended: that the public interest inquiry under the Tunney Act is limited, procedural, and deferential. Turning it into a battleground for political grievances would weaken both the Justice Department and the judiciary itself.

The real public interest lies in preserving a system where the law is applied predictably, the branches of government respect each other’s boundaries, and businesses can innovate without fear that politics will rewrite the rules after the fact.

The case is United States v. Hewlett Packard Enterprise Co., N.D. Cal., No. 5:25-cv-00951, motion filed 10/14/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

David Balto is a Washington, DC-based consumer advocate, the former policy director of the Federal Trade Commission, and a former trial attorney at the Antitrust Division of the Department of Justice.

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