The Justice Department says it's going to ask to withdraw or postpone its antitrust case against the proposed merger between AT&T Inc. and smaller rival T-Mobile USA.

The companies withdrew their application for approval of the $39 billion deal with the Federal Communications Commission two weeks ago after the commission's chairman came out against it.

The companies have said they'll seek approval in a trial scheduled for February and file another FCC application later.

But a government lawyer has told the federal judge overseeing the case that there's "not a real transaction" until the companies file again with the FCC.

Judge Ellen Segal Huvelle told AT&T that she was concerned the company was "using" the court and wasting taxpayer resources.

She set a hearing for Thursday on whether to proceed.