Antitrust is the worst option

But the arguments for the role of antitrust law in regulating collusion are not arguments for policing privateering activity in and of itself. This is simply a natural extension of the longstanding proscription against collusion between competitors or anticompetitive mergers - a proscription unique to the specialized laws of antitrust. The fundamental problem with most popular and academic arguments calling for antitrust intervention is that they fail to recognize this distinction, and in turn the limitations inherent to antitrust law. These limitations may be quasi-constitutional, such as the Noerr-Pennington doctrine, 170 or they may be practical, such as proving intent under Section 2. 171 Superimposed on these limitations is the notion - supported not only by academics but also the Supreme Court - that when an alternative regime to antitrust law is available, efficiency considerations dictate that antitrust's role should be minimized. 172

This is to say nothing of the more generalist arguments in favor of a limited role for antitrust law. Antitrust violations are ultimately felonies, after all, so practices condemned by antitrust law "should not be … just over the line," but "so clearly beyond the pale … as to be subjects of strong condemnation." 173 Given the highly broad and open text of the actual antitrust statutes, this is a particularly salient concern for voluntary compliance and clarity. 174 The particularly high cost of false positives - not only the direct costs of treble damages but also the inducement of rent-seeking activities - coupled with judges' lack of economic or industry expertise suggests minimizing the role of antitrust law as mere business regulator. 175 In short, there is good reason to be skeptical "about courts' ability to separate good conduct from bad" and "modest[] about what [antitrust] laws can do well." 176 These arguments are convincing in their own right. But they mostly serve here to highlight the fact that conduct without a clear anticompetitive [*224] valence - such as unilateral usage of privateering - should not be curtailed by antitrust laws where alternatives are available.

Older Supreme Court decisions, including Cement Institute, 160 Brown Shoe, 161 and Sperry & Hutchinson, 162 granted section 5 an expansive interpretation to match its generous wording. Thus, the Court confirmed that section 5 both encompasses and surpasses the Sherman Act provisions. 163 The 'broad powers' of the FTC under section 5 were emphasized, as 'well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws'. 164 Later, even this rule of thumb-that prohibited conduct should run contrary to competition policy, even if not the strict provisions of the antitrust rules-was rejected as an absolute requirement. In assessing fairness, the FTC may take into consideration 'public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws'. 165 Thus, section 5 has been identified as a potential mechanism by which to address types of anticompetitive conduct outside the discrete Sherman Act prohibitions, including oligopoly