76 Geo. L. J. 321 (1987-1988)
Does Antitrust Have a Future

handle is hein.journals/glj76 and id is 343 raw text is: Does Antitrust Have a Future?

ROBERT PITOFsKY*
This symposium was convened in the seventh year of the Reagan Adminis-
tration to discuss antitrust policy. During this Administration, we have wit-
nessed the most lenient antitrust enforcement program in fifty years. The
question which must be addressed is whether this is the wave of the futur6, or
only a temporary aberration that has occurred because an unusually con-
servative group controls the antitrust enforcement agencies.
I. ANTITRUST TODAY
For *seven years, antitrust enforcement has been limited for the most part
to a program of challenging horizontal cartels, large horizontal mergers, and
predation. Virtually all of the rest of antitrust has been consigned to a non-
enforcement oblivion. For example, although the courts have clearly said
that resale price maintenance is illegal per se, and Congress has given indica-
tions on several recent occasions that it supports that view,1 this Administra-
tion has not brought a single case. Although non-price vertical restrictions
can still be illegal under the rule of reason, the Administration has published
a permissive set of guidelines2 and brought not a single case. Although the
Administration's own merger guidelines declare vertical and conglomerate
mergers to be illegal under some circumstances,3 the Administration has
brought not a single case. Finally, although section 2 of the Sherman Act still
outlaws monopolization, the Administration has brought not a single case in
seven years.4
Even in some of the areas where enforcement is theoretically consistent
with conservative views, few cases have been filed. To be sure, this Adminis-
tration has been tough at ferreting out and challenging cartels, although the
numbers are somewhat inflated because it has brought the same case against
* Dean and Professor of Law, Georgetown University Law Center. B.A. 1951, New York Uni-
versity; LL.B. 1954, Columbia University.
1. Congress prohibited the use of any funds to alter the per se prohibition on resale price mainte-
nance and called upon the Attorney General to withdraw the vertical restraints guidelines (which
propose avoidance of the per se rule) in the Department of Justice Appropriations Act for fiscal
year 1986. Department of Justice Appropriations Act, 1986, Pub. L. No. 99-180,  605, 99 Stat.
1136, 1169-70 (1985); see HOUSE JUDICIARY COMM., REPORT ON VERTICAL RESTRAINTS GUIDE-
LINES RESOLUTION, H.R. REP. No. 399, 99th Cong., 1st Sess. (1985) (noting Judiciary Committee
efforts).
2. U.S. Dep't of Justice Vertical Restraints Guidelines, 50 Fed. Reg. 6263 (1985).
3. U.S. Dep't of Justice Merger Guidelines, 49 Fed. Reg. 26,823, 26,830-35 (1984).
4. Although it did bring the AT&T litigation to a suceessful conclusion-at least from the point
of view of antitrust enforcement.

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