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Zombie Antitrust: Is Robinson-Patman a Dead Law Walking?

Author(s):
Timothy J. Muris
Posted:
04-2026
Law & Economics #:
26-07

ABSTRACT:

By the 1970s, a nearly unanimous Antitrust community had concluded that the Federal Trade Commission‘s (FTC) enforcement of the Robinson-Patman Act perverted Antitrust law. FTC enforcement declined and then was abandoned entirely, with the Supreme Court declaring in 2006 that lower courts should avoid applying Robinson Patman in ways “geared more to the protection of existing competitors than to the stimulation of competition.” Shattering this consensus, the Biden FTC brought the first two government cases in many years (one continued by the Trump FTC). The Biden Commissioners claimed that the old consensus both misunderstood the nature of the statute and was based on faulty reasoning of the Chicago school and the Reagan Administration. 
The revivalist story of Robinson Patman’s history is fictitious, denying the statute’s protectionist origins. Only 15 days after the Supreme Court struck down the government’s attempt to end the Great Depression by cartelizing business to raise prices, Wright Patman introduced “The Wholesaler Grocer’s Protection Act,” written by the wholesaler grocer trade association and seeking the same goal in a different guise. To overcome significant opposition, including from the Roosevelt Administration, the actual legislation included new defenses and greater complexity and ambiguity. The result was, as historian Ellis Hawley concluded, “a vague law,” the “actual effects of which would depend on its administration and interpretation.” Nevertheless, the FTC through the 1960s took an aggressive competitor-protection approach to enforcement. An overwhelming consensus developed that the Act was used to protect competitors rather than competition and consumers. Beginning in 1970, the FTC abandoned Robinson Patman as the center of its competition universe, long before the Reagan Administration. 
Surprisingly, revivalists also claim no evidence shows that Robinson Patman enforcement was anticompetitive, ignoring both business responses to the Act and the many studies of problematic FTC enforcement. This report for the Competitive Enterprise Institute details numerous, well-known examples of enforcement and policy that raised cost and reduced competition. For example, the FTC encouraged direct competitors to share their prices; it discouraged selective price cutting in industries most susceptible to tacit or explicit collusion; and it discouraged small businesses from cooperating to compete successfully with larger ones. The overwhelming experience of the businesses, attorneys, and others most exposed to Robinson Patman is compelling evidence that led them to revolt and conclude that FTC enforcement was fundamentally inconsistent with antitrust’s purpose of protecting competition and consumers.
Finally, in a companion piece summarized here, “Stop Making Sense: Reviving the Robinson-Patman Act, and the Economics of Intermediate Price Discrimination,“ SSRN-6299819, Bruce Kobayashi and I discuss current economic literature, both theoretical and empirical, regarding intermediate price discrimination. Economists continue to debunk the economic incoherence of a favorite argument of revivalists, used 90 years ago and resurrected today, that discounts to large retailers are only possible because small firms pay more. Modern theoretical justifications of mandating uniform pricing show beneficial results are possible, but only in narrow circumstances that provide no practical or policy guidance. Moreover, when key institutional features of pricing that large firms actually use are incorporated, the results support using, not restricting, differential pricing. Not surprisingly, empirical studies fail to support revival. Causal evidence of harm from intermediate price discrimination is nonexistent, and indirect evidence is consistent both with the benefits of differential pricing and the high costs of the efforts of the FTC and others to impose uniformity.