The Domestic Scope of Antitrust, Unadulterated

• Author: Christopher L. Sagers
• Pages: 13-26

13

CHAPTER II

THE DOMESTIC SCOPE OF ANTITRUST,

UNADULTERATED

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.

1.

“Trade or Commerce” in General, Its Exclusion of Charity and

Gratuity, and the Baseball Exemption

The major substantive antitrust provisions—the Sherman Act, FTC

Act section 5, and Clayton Act section 7—all reach to the full extent of

Congress’s commerce power, so long as the challenged conduct is

“commercial” in character. Some more minor antitrust statutes—Clayton

Act sections 3 and 8 and the Robinson-Patman Act—do 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.

1

Congress adopted the Sherman Act pursuant to its constitutional

power “[t]o regulate commerce with foreign nations, and among the

1

. See part II.A.5 of this chapter.