ness of the remedies imposed in merger cases. 63 Drawing on a theory of government enterprise, 64 which suggests that "visible" output will be favored over "invisible" output, Rogowsky argues that, because the personal reward structure facing them pushes the government's antitrust attorneys in the direction of generating new complaints and trying new cases, remedy tends to become an incidental aspect of the law enforcement process. Once the liability phase of an antitrust proceeding has been "won," staff attorneys and upper-level bureau managers have an incentive to resolve the relief issue quickly in order to move on to other investigations that hold the promise of going to trial. A "weak" remedy may therefore be proposed by the prosecutors (or accepted when offered by the defendant) simply to get the negotiations over with quickly and a final judgment entered closing out the case. Alternatively, Rogowsky suggests that remedies tend to be ineffective because the allegations made in many of the government's complaints tend to be weak or meritless. Insofar as cases are selected for prosecution not because of their social payoff but because of their potential for being settled expeditiously either in trial or through negotiations with the defendant that lead to a consent order, weak allegations can be disposed of quickly with weak remedies.
Taken as a group, these few studies of organizational behavior point to the conclusion that the antitrust bureaucracy does not select cases to prosecute on the basis of their potential net benefit to society. Instead, the managers and staff of the Antitrust Division and the Federal Trade Commission use the discretion at their disposal partly to further their own private interests rather than those of the public at large.