The Domestic Scope of Antitrust, Unadulterated

AuthorChristopher L. Sagers
Although this book’s main focus is exemptions and immunities from
federal antitrust law, it will be useful to begin with a clear picture of the
scope of antitrust when no such limitation applies.
A. The Scope of Federal Antitrust Unadulterated: The
“Commerce” Requirement, the Meaning of “Persons,” and the
Complicated Reach of the Clayton and FTC Acts
In the absence of exemption or immunity, most antitrust rules apply
to the “commercial” conduct of “persons” anywhere within Congress’s
interstate commerce power, and regardless where their conduct occurs,
so long as it has some significant impact within the United States. Giving
that generalization more content requires several important definitions:
the meaning of “commerce” in the antitrust context, the definition of
“person,” and some consideration of special limitations contained in the
Clayton and Federal Trade Commission (FTC) Acts.
“Trade or Commerce” in General, Its Exclusion of Charity and
Gratuity, and the Baseball Exemption
The major substantive antitrust provisionsthe Sherman Act, FTC
Act section 5, and Clayton Act section 7all reach to the full extent of
Congress’s commerce power, so long as the challenged conduct is
“commercial” in character. Some more minor antitrust statutesClayton
Act sections 3 and 8 and the Robinson-Patman Actdo not reach to the
full extent of the commerce power, because they require that the
challenged conduct actually be in interstate commerce, rather than
having some mere effect on it.
Congress adopted the Sherman Act pursuant to its constitutional
power “[t]o regulate commerce with foreign nations, and among the
. See part II.A.5 of this chapter.

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