For those of you who are not familiar with work of the Antitrust Modernization Committee, and I suspect that this includes most of our readers, the AMC was created by the Antitrust Modernization Committee Act of 2002, and is charged with the following tasks:
(1) to examine whether the need exists to modernize the antitrust laws and to identify and study related issues;
(2) to solicit views of all parties concerned with the operation of the antitrust laws;
(3) to evaluate the advisability of proposals and current arrangements with respect to any issues so identified; and
(4) to prepare and submit to Congress and the President a report.
The AMC has all but concluded tasks (1) and (2) as of January 19, when it held its Economists’ Roundtable on Merger Enforcement, the last of a series of hearings on a variety of antitrust issues. After reading through most of the transcripts and written submissions, which are very usefully available online at amc.gov, I am hopeful that the AMC’s report (due in April 2007) will be an important first step towards antitrust reform. Who knows, maybe the AMC will persuade legislators that it is time to overturn or significantly curtail the application ofthe Robinson-Patman Act? At a minimum, it promises to keep antitrust lawyers and economists busy for awhile.
For those interested in antitrust who do not want to wait until April 2007, I recommend the submissions from the panels on Merger Enforcement, New Economy and Patent Reform, and Exclusionary Conduct.
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I fear that you are correct about legislative action re: the RP Act, but I can still hope! While decisions like Volvo and the like are helpful in curtailing the Act’s application, I fear it still does create some havoc in the monopolization context, i.e. the FTC’s action against McCormick.
Don’t think we’re going to see any Congressional action on R-P when all is said and done, but we just might get an AMC recommendation for repeal that we can keep in the knick-knack drawer with our old DOJ recommendation for repeal. The Volvo Trucks opinion may, on balance, hurt more than it helps when it comes to getting Congressional action. From what I’ve been able to put together, the powers-that-be seem to think that most of R-P has already been dealt with through the courts and through sellers’ creativity (coupon programs, etc.). Volvo Trucks is likely to be seen as further justification for leaving things alone, especially in light of the opinions tacit reaffirmation of Morton Salt in the power buyer context and the prevailing witch hunt mentality as to Wal-Mart. The small-business lobby remains powerful, and the economic arguments against R-P, while persuasive to almost anyone who actually takes time to think about them, don’t exactly resonate with mainstream America on every level.
By the way, you should have seen the first draft of the ABA Exemptions and Immunities Committee’s comments to the AMC. Before they shot me up with thorazine and took away my computer, that is.