per-unit prices, and some functional types of tie-ins and reciprocity) is economically inefficient
although it does not manifest the perpetrator’s specific anticompetitive intent or lessen competition.
economic efficiency, the general theory of second best, the liberal conception of justice, nonliberal
conceptions of the moral good, tests of antitrust illegality, U.S. and E.U. antitrust law
This Article (1) summarizes my conclusions about the actor-coverages of, the conduct-coverages of,
the tests of prima facie illegality promulgated by, and the defenses recognized by the current versions
of each of the three major United States (U.S.) antitrust statutes—the Sherman Act,
the Clayton Act,
and the Federal Trade Commission Act
—as correctly interpreted and applied as matters of law; (2)
summarizes my conclusions about the same components of each of the three sources of contemporary
European Union (E.U.) competition law—what is now Article 101 of the 2009 Treaty of Lisbon,
is now Article 102 of the 2009 Treaty of Lisbon,
and the current European Merger Control Regula-
—as correctly interpreted and applied as matters of law; (3) delineates the respects in which
contemporary U.S. antitrust law as written and contemporary E.U. competition law as written are like
and analyzes whether each of these differences makes U.S. antitrust law as written morally
1. 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. Sections 1–11) (hereinafter Sherman Act).
2. 38 Stat. 730 (1914) (codified as amended at 15 U.S.C. Sections 12–27) (hereinafter Clayton Act).
3. 38 Stat. 717 (1914) (codified as amended at 15 U.S.C. Sections 41–45) (hereinafter FTC Act).
Treaty of Lisbon Amending the Treaty on European Union
and the Treaty Establishing the European Community (hereinafter
2009 Treaty of Lisbon) at Article 101, 2007 OJ C306 p.1 (December 13, 2007).
5. Id. at Article 102.
6. Council Regulation 139/2004 on the Control of Concentrations Between Undertakings, OJ L24/1 (May 1, 2004) (hereinafter
EMCR). The original EMCR was promulgated as Council Regulation 4064/8 9 on the New Control of Concentrations
Between Undertakings, OJ L395/1 (1989).
7. This article will not address a number of important differences between contemporary U.S. antitrust law and contemporary
E.U. competition law as written: inter alia, (1) differences between the protocol that the Hart-Scott-Rodino Act requires the
Department of Justice (DOJ) and FTC to follow when reviewing the legality of proposed horizontal mergers under U.S.
antitrust law and the protocol that the European Commission (EC) is required to follow when reviewing the legality of
proposed horizontal mergers under E.U. competition law; (2) the fact that, in the U.S., nongovernment actors that have an
appropriate antitrust interest in challenging the legality of business conduct have the legal power (have standing) to do so
(indeed, can collect treble damages for their losses and reasonable attorney-fees), whereas nongovernment actors have no
such powers under E.U. law; and (3) differences in the injunction and penalty provisions of U.S. and E.U. antitrust law and in
the authority of the EC and of the U.S. FTC and DOJ to compel businesses to cease engaging in particular acts or patterns of
conduct off their own bat (i.e., without judicial “intervention”). The citation of the Hart-Scott-Rodino Act is 15 U.S.C.
Section 18a 2009 Treaty of Lisbon (1976). For the protocol that the EC is required to follow when applying Article 101 and
Article 102 of the Treaty of Lisbon, see EEC Council, Regulation No. 17, First Regulation Implementing Articles 85 and 86
of the Treaty, Articles 2–3 and 9 inset 1, English Special Edition: Series I, C hap. 1959–62 at 87 (1962) and Council
Regulation (EC) No. 1/2003 on the Implementation of the Rules of Competition Laid Down in Articles 81 and 82 of the
Treaty (Dec. 16, 2002)
, OJ L1/1 (2003). For a detailed account of the protocol in question, see Peder Christensen, Kyriakos
Founotukakus, & Dan Sjo¨blum, Mergers 421, 535–92, Chapter 5 in THE E.C. LAW OFCOMPETITION (Jonathan Faull & Ali
Nikipay eds., 2d ed., 2007). For the protocol that applies in EMCR cases, see Council Regulation 139/2004 on the Control of
Concentrations Between Undertakings (May 1, 2004). For the U.S. antitrust-law provisions that authorize nongovernment
actors to bring antitrust suits and to collect treble damages (as well as reasonable attorneys fees) from defendants that have
been found guilty, see Sherman Act, Section 15a and Clayton Act, Section 4. Admittedly, Article 230 of the EC Treaty does
authorize natural or legal persons to bring annulment proceedings against EC decisions before a Court of First Instance (CFI)
(challenging findings of fact) or before the European Court of Justice (ECJ) (challenging conclusions of law): appeals against
EC decisions are common in nonmerger cases but less common in merger cases, though the rate of merger-case appeals may
be increasing as a result of the CFI’s adopting a “fast-track” procedure for reviewing merger-case appeals and announcing
various decisions in merger-appeal cases criticizing the EC for failing to execute appropriate economic analyses. See RICHARD