From Borden to Billing: Identifying a Uniform Approach to Implied Antitrust Immunity from the Supreme Court’s Precedents

The federal antitrust laws1 “represent a fundamental national economic policy.”2 They govern virtually every business activity in the country, and seek to protect “unfettered competition in the marketplace.”3 As economics teaches, unrestrained competition generally produces the best allocation of society’s resources,4 and creates incentives for innovation and product development by rewarding the more efficient firms in an industry.5 Accordingly, the antitrust laws prohibit and punish conduct which unreasonably restrains competition, including agreements to restrain trade,6 and attempted and actual monopolization.7 Despite the importance and broad scope of the antitrust laws,8 certain conduct is immune from antitrust scrutiny. Immunities from the antitrust laws generally take one of two forms: express or implied.9 Express immunity exists where Congress enacts a law that expressly exempts certain activity from antitrust scrutiny.10 But because Congress typically says