Most *contemporary* antitrust challenges are subject to rule of reason, because horizontal mergers get scrutinized by the FTC, and companies are rarely dumb enough to engage in open industry-wide price fixing. But the per se rule against price-fixing arose because of Ye Olde Trusts like Standard Oil and U.S. Steel. The economists mostly say that such a per-se rule shouldn’t apply to vertical price fixing, but it does logically follow, at least superficially, that if it’s bad for competitors to fix prices amongst themselves, it’s little better for an upstream manufacturer to have the same effect by requiring all retailers to sell at the same price.

Even when individual consumers are the nominal plaintiffs, the real beneficiaries of the case are plaintiff’s attorneys, which themselves are businesses.

Couldn’t you make that claim about almost any case that would require the defendant to change his practices overall? On an individual level, the attorneys may be the biggest immediate winners, but if the outcome results in lower prices and/or better products for consumers, I suspect the aggregate benefit to them is larger than the benefit to the attorneys.

Part of the pro-business evaluation of Leegin also may be due to its apparent contradiction of Congressional/ White House preference as expressed through the Consumer Goods Pricing Act of 1975.