An anonymous reader reminds me of the FTC Statement from Commissioners Harbour, Leibowitz and Rosch (but not Chairman Kovacic, who was recused) making the case against certiorari in Linkline:
“The holding of the Ninth Circuit is unquestionably correct, and indeed merely echoes what other courts of appeals have held on the narrow issue presented to the court below: that claims of a predatory price squeeze in a partially regulated industry remain viable after Trinko.”
In all seriousness, I wonder why the use of the word unquestionably there? Its strong language for an issue where the Solicitor General disagrees and ultimately, so do all nine Supreme Court Justices. This sort of strong language has become a hallmark of this trio of Commissions late in other debates. For example, I’m reminded of the assertion that the DOJ Section 2 Report was a “blueprint for radically weakened enforcement of Section 2 of the Sherman Act”, that it “placed a thumb on the scale in favor of firms with monopoly power” and was “chiefly concerned with … prescribing a legal regime that places these firms’ interests ahead of interests of consumers.”
Whatever one thinks about the merits of the arguments in Linkline, there were and have been serious doubts about the viability of price squeeze theories of liability for a long time. Similarly, whatever one thinks about the merits of the Section 2 Report on specific issues, I’m not sure it advances the state of argument to contend that the drafters of that report (many career antitrust enforcers) are interested in harming consumers in order to help monopolists. The working assumption ought to be that both sides are operating in good faith until there is evidence to the contrary. The Section 2 Report deserves that presumption as well. To be sure, it should be exposed to criticism where appropriate. There are plenty of reasonable and vigorous debates that can be had over what types of conduct harm consumers and when, the evidence supporting competing theories of economic behavior, and how to design appropriate legal rules to protect consumers. For example, there remain important wars to be waged on RPM, single firm conduct generally, the appropriate scope of Section 5, and more. But these debates ought to be based on reasonable discourse about theory and empirical evidence, and a working assumption that both sides are interested in getting it right.
