Is the FTC Bucking the Trend? The Propane Settlement as an Expansion of Per Se Illegality

For more than two decades, the Supreme Court has been scaling back the scope of what is considered per se illegal under the U.S. antitrust laws. Until recently, the U.S. Federal Trade Commis- sion (“FTC”) and Department of Justice (“DOJ”) have seemingly followed suit, if not encouraged the trend. Now, the FTC’s recent statement in favor of settlement with AmeriGas and Blue Rhino prompts the question of whether the agency, at least in some respects, is seeking to move the scope of per se illegality in a direction contrary to that driven by the Supreme Court.