Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes

Antitrust’s refusal-to-deal (“RTD”) doctrine considers situations where a dominant firm excludes rivals by refusing to sell them something that would help them compete. For over a century, the courts have made anticompetitive intent the touchstone of RTD liability. However, virtually everyone understands that this intent-based standard cannot possibly be right, as it would permit antitrust to be abused as a vehicle for egregious free-riding. Courts understand this risk, but rather than rep