The vertical restraints guidelines of the department of justice

Abstract

In January, 1985, the Department of Justice issued Vertical Restraints Guidelines intended to clarify the legal status of vertical restraints, which had remained indefinite since the Supreme Court had declared in 1977 that the “rule of reason” was applicable to a large class of these restraints, and to outline an enforcement policy fair to all concerned and economically justified. The guidelines are mainly concerned with the two most controversial types of arrangement: territorial or customer restraints and exclusive dealing arrangements. Separately treated are tying arrangements, where the enforcement policy strictly follows lines indicated by a recent Supreme Court decision. A large part of the text of the guidelines is devoted to a detailed explanation of ways in which a given vertical restraint may be freed from the suspicion of anticompetitive effect. The analysis employs defective tests for anticompetitive impact and does not deal adequately with practices with both good and bad effects. Therefore, the guidelines do not appear to have accomplished their stated purpose.