From Protecting Competitors to Protecting Competition: The Past, Present, and Future of the Robinson-Patman Act

• Pages: 487-546
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Melissa Holyoak,Christopher G. Mufarrige
• Subject Matter: Administrative & Public Law

FROM PROTECTING COMPETITORS TO PROTECTING

COMPETITION: THE PAST, PRESENT, AND FUTURE OF

THE ROBINSON-PATMAN ACT

M H

C G. M*

We have vacillated and oscillated between the [National Recovery

Act] theory, roughly, and the Sherman Antitrust Law theory ever

since I can remember, and we are still wobbling.

—Justice Robert H. Jackson1

INTRODUCTION ......................................... 488

I. HISTORY OF THE ROBINSON-PATMAN ACT ............ 492

A. 1914: T O S 2   C A .... 492

B. 1914–1936: E L  

R-P A ............................. 494

C. 1936: P  R-P A ............. 497

D. E I  E 

 R-P A ......................... 500

E. 1977: U.S. D  J R 

 R-P A ......................... 503

II. THE MORTON SALT PRESUMPTION: BAD ECONOMICS,

BAD LAW ........................................... 509

A.

Morton Salt’S

F  H  C W

L, F,  E U .... 509

1. Post-Morton Salt, The Commission and Courts

Charted a Course Away from Anti-Consumer and

Atextual Interpretations of the Robinson-Patman Act .... 510

* Nominee for U.S. Attorney for the District of Utah and former Commissioner, Federal

Trade Commission (2024–25); Director, Bureau of Consumer Protection, Federal Trade Commis-

sion. The views expressed are those of the authors and not necessarily those of the Commission

or any other Commissioner. The authors thank Susan Creighton, Tim Muris, Nate Harris, Joel

Schrag, Bill MacLeod, Mitchell London, and Charles Dickinson for their helpful comments.

1 Transcript of Record at49, Standard Oil Co. v. FTC, 340 U.S. 231 (1951) (Jackson, J.).

487

2. The Commission’s Own Expert Research Undermines

the Morton Salt Inference ......................... 519

3. Modern Economic Understanding Demonstrates

That Price Discrimination Can Have Negative

or Positive Effects on Competition and Consumers ..... 522

B. T P T   R-P A I

 T  

Morton Salt

I ........... 526

III. THE ROBINSON-PATMAN ACT PROSCRIBES CONDUCT

THAT HARMS COMPETITION, NOT COMPETITORS ...... 529

A.

Brooke Group

C T  R-P

A R M  H  R 

T I S B H   O

A L .................................. 529

B. T R-P A’ C-E

L S B I C

A A   C A P .......... 533

C.

Brooke Group

’ H T  R-P

A R I  C E

 S-L C ......................... 537

D. C   T  S  

R-P A—A 

Brooke Group

’

F—S-L C S B

E U  A F

 R R’ C ........................... 539

CONCLUSION .......................................... 545

INTRODUCTION

Nearly a century has passed since the enactment of the Robinson-Patman

Act (RPA). An amendment to the Clayton Act, the RPA sits uncomfort-

ably under the umbrella of American antitrust law. Among its many unique

features is its proscription of price discrimination that harms competition. A

fundamental question, therefore, is how a price discrimination law can operate

to facilitate the goal of antitrust.

To answer that question, we begin with first principles.2 The goal of anti-

trust can be stated in one word: competition. Competition promotes rivalry,

facilitates the allocation of resources to their best and most highly valued uses,

spurs innovation, and maximizes consumer welfare. It also stimulates growth

and expands economic opportunity. But effective competition depends on the

information that prices convey about supply and demand conditions. And the

2 See United States v. Lopez, 514 U.S. 549, 552 (1995) (“We start with first principles. The

Constitution creates a Federal Government of enumerated powers.”).

488 A L J [Vol. 87

accuracy of that information depends on the freedom of firms to choose prices

that reflect the knowledge available to them.3 Indeed, price competition is the

electric cord that links today’s ideas with tomorrow’s economic prosperity.4

Of course, a firm’s prerogative to set its prices does not give it license

to engage in anticompetitive conduct or otherwise impede the competi-

tive process. And yet the fact remains that vigorous competition can harm

rivals while benefiting consumers.5 Because harm to rivals may be caused

by competition on the merits rather than anticompetitive conduct,6 the anti-

trust agencies and courts often struggle to calibrate antitrust policy so that it

simultaneously promotes conduct that facilitates competition and proscribes

conduct that harms it.7 For example, while there is general consensus that

agreements among competitors to set prices, allocate customers, or divide

sales territories are inherently problematic, unilateral exclusionary conduct

does not enjoy similar consensus, routinely presenting the antitrust agencies

and courts with conduct that can be difficult to evaluate.8

Though certain business conduct remains difficult to evaluate, there is

general consensus that the antitrust laws cannot seek to prevent injury to com-

petitors without making competition illegal. Nonetheless, enforcement of the

3 See F.A. Hayek, The Use of Knowledge in Society, 35 A. E. R. 519, 527 (1945)

(“It is more than a metaphor to describe the price system as a kind of machinery for registering

change, or a system of telecommunications which enables individual producers to watch merely

the movement of a few pointers, as an engineer might watch the hands of a few dials, in order

to adjust their activities to changes of which they may never know more than is reflected in the

price movement.”).

4 See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n.59 (1940) (describing

the price system as “the central nervous system of the economy”); see generally F.A. Hayek,

Der Wettbewerb als Entdeckungsverfahren [Competition as a Discovery Procedure], K

V [K L] No.56 (1968) (Austria), translated in 5 Q.J. A E. 9

(Marcellus S. Snow trans., 2002).

5 See Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 116 (1986) (“To hold that the

antitrust laws protect competitors from the loss of profits due to such price competition would,

in effect, render illegal any decision by a firm to cut prices in order to increase market share. The

antitrust laws require no such perverse result....”).

6 A congressional committee report evaluating the Robinson-Patman amendment noted:

In any competitive economy we cannot avoid injury to some of the competitors. The law

does not, and under the free enterprise system it cannot, guarantee businessmen against

loss. That businessmen lose money or even go bankrupt does not necessarily mean that

competition has been injured. “Competition,” Mr. Justice Holmes observed, “is worth

what it costs.”

We must always distinguish between injury to competition and injury to a competitor. To

promote and protect competition is the primary function of the antitrust laws. However,

we cannot guarantee competitors against all injury. This can only be accomplished by

prohibiting competition.

H.R. Rep. No.81-1422, at5–6 (1949).

7 See, e.g., Frank Easterbrook, The Limits of Antitrust, 63 T. L. R. 1, 2 (1984).

8 See Susan Creighton, Dir. of Bureau of Competition, Fed. Trade Comm’n, Remarks Before:

Charles River Associates 9th Annual Conference, Current Topics in Antitrust Economics and

Competition Policy (Feb. 8, 2005), www.justice.gov/archives/atr/cheap-exclusion.

2026] F P C 489