Tuesday, February 20, 2007
Posted by D. Daniel Sokol
PDf available here (Download 05-381_All.pdf). I have not read the opinion yet, so my remarks are based on the briefs, which I read a while ago. I think that the Court reached the right result. I am suspcicious of predation claims unless the government is somehow involved in altering the competitive landscape through state owned enterprises (revenue maximization goal instead of profit maximization goal) or through various government imposed barriers or aids that artificially reduce marginal cost. In a non-US setting, these issues play particular importance because of greater state intervention in the economy. That is, I don't think that the Brooke Group test works in much of the rest of the world. In this respect, the EU has done a better job in addressing state created distortions due to predation such as in the Deutsche Post abuse of dominance and state aids decisions.