While it can be hard to evaluate a failing firm defense under the Merger Guidelines, the principles underlying the test are generally sound, even when the overall economy is going through very difficult times.

Most scholars believe the Supreme Court dropped its per se rule against price-fixing in Appalachian Coals (1933), re-instituting that rule in Socony-Vacuum (1940), but that the rule ignored "reasonableness" until BMI (1979), and that Maricopa (1982) relied on Socony to step back from...