The FTC's Revival of the Robinson-Patman Act: A Policy in Need of a Rationale

The FTC's Revival of the Robinson-Patman Act: A Policy in Need of a Rationale

M. Niefer

Antonin Scalia Law School at George Mason University

Donald I. Baker

Baker & Miller PLLC

Abstract

The U.S. antitrust agencies largely gave up enforcing the Robinson-Patman Act (RPA) more than forty years ago. The change in policy was prompted in part by a landmark 1977 Department of Justice (DOJ) report concluding that the costs of enforcing RPA exceeded the benefits. Despite the 1977 report (and many others since then that have reached a similar conclusion), the Federal Trade Commission (FTC) recently suggested that it will increase RPA enforcement as part of a broader "fairness" agenda. The FTC, however, has not fully articulated a clear rationale for its apparent change in policy. In this brief essay, we argue that the FTC might usefully consider and emulate the 1977 DOJ report, even if it reaches a different conclusion. Although we believe there is ample evidence suggesting the public would be better off if the FTC did not revive RPA enforcement, we are more concerned that the FTC has not adequately justified its views in light of the apparent costs of enforcing the Act. The costs and benefits of enhanced RPA enforcement need to be fully explored, and the FTC’s rationale for enhanced enforcement must be fully explained. Good public policy demands no less. We hope the FTC and its Congressional oversight committees ultimately see it that way too.