Jefferson County Pharmaceutical Ass'n, Inc. v. Abbott Laboratories

Section 2(a), 15 U. S. C. § 13(a), provides in relevant part:

“It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States . . . , and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . .

Section 2(f), 15 U. S. C. § 13(f), provides:

“It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.”

Section 13c provides:

“Nothing in [the Robinson-Patman Act] shall apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit.”

“State purchases” are defined as sales to and purchases by a State and its agencies.

The District Court, and thus the Court of Appeals, agreed that “[t]he claims against the Board must ... be treated as equivalent to claims against the State itself.” 656 F. 2d, at 99. Accordingly, both courts held that the Eleventh Amendment bars petitioner’s claim for damages against the University. Petitioner did not challenge this holding in its appeal from the District Court’s decision.

Respondents argue that application of the Act to purchases by the State of Alabama would present a significant risk of conflict with the Tenth Amendment and that we therefore should avoid any construction of the Act that includes such purchases. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 501 (1979). There is no risk, however, of a constitutional issue arising from the application of the Act in this case: The retail sale of pharmaceutical drugs is not “indisputably” an attribute of state sovereignty. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981). It is too late in the day to suggest that Congress cannot regulate States under its Commerce Clause powers when they are engaged in proprietary activities. See, e. g., Parden v. Terminal Railway of Alabama State Docks Dept., 377 U. S. 184, 187-193 (1964). If the Tenth Amendment protects certain state purchases from the Act’s limitations, such as for consumption in traditional governmental functions, those purchases must be protected on a case-by-case basis. Cf. City of Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 413, and n. 42 (1978) (plurality opinion).

Special solicitude for the plight of indigents is a traditional concern of state and local governments. If, in special circumstances, sales were made by a State to a class of indigents, the question presented, that we need not decide, would be whether such sales are “in competition” with private enterprise. The District Court correctly assumed that the private and state pharmacies in this case are “competing pharmacies.” 656 F. 2d, at 98. See also n. 8, infra.

The District Court properly assumed, for purposes of making its summary judgment, that at least some of the hospital purchases would not be covered by the § 13c exemption. See n. 3, supra, and accompanying text. Therefore, we need not consider whether this express exemption would support summary judgment in cases against state hospitals purchasing for their own use. See n. 20, infra.

The words “person” and “persons” are used repeatedly in the antitrust statutes. See 15 U. S. C. §§7, 12, 15.

See, e. g., Georgia v. Evans, 316 U. S. 159, 162 (1942) (State is a “person” under § 7 of the Sherman Act); Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390, 396 (1906) (municipality is a “person” within the meaning of § 8 of the Sherman Act). See also Pfizer Inc. v. Government of India, 434 U. S. 308, 318 (1978) (foreign nation is a “person” under § 4 of the Clayton Act).

The Court has not considered it at all “anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose . . . sanctions upon ‘persons.’” City of Lafayette v. Louisiana Power & Light Co., supra, at 400. See California v. United States, 320 U. S. 577, 585-586 (1944); Ohio v. Helvering, 292 U. S. 360, 370 (1934). One case is of particular relevance. In Union Pacific R. Co. v. United States, 313 U. S. 450 (1941), the Court considered the applicability to a city of § 1 of the Elkins Act, 32 Stat. 847, as amended, 34 Stat. 587, 49 U. S. C. § 41(1) (repealed 1978), “a statute which essentially is an antitrust provision serving the same purposes as the anti-price-discrimination provisions of the Robinson-Patman Act.” City of Lafayette, supra, at 402, n. 19. The Union Pacific Court expressly found that a municipality was a “person” within the meaning of the statute. 313 U. S., at 462-463. See also City of Lafayette, supra, at 401, n. 19.

The word “purchasers” has a meaning as inclusive as the word “person.” See 80 Cong. Rec. 6430 (1936) (remarks of Sen. Robinson) (“The Clayton Antitrust Act contains terms general to all purchasers. The *156pending bill does not segregate any particular class of purchasers, or exempt any special class of purchasers”).

The only apparent difference between the scope of the relevant laws is the extent to which the activities complained of must affect interstate commerce. Congress’ decision in the Robinson-Patman Act not to cover all transactions within its reach under the Commerce Clause, see Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 199-201 (1974), does not mean that Congress chose not to cover the same range of “persons” whose conduct “in commerce” is otherwise subject to the Act.

Indeed, the House and Senate Committee Reports specifically state that “[t]he special definitions of section 1 of the Clayton Act will apply without repetition to the terms concerned where they appear in this bill, since it is designed to become by amendment a part of that act.” H. R. Rep. No. 2287, 74th Cong., 2d Sess., pt. 1, p. 7 (1936); S. Rep. No. 1502, 74th Cong., 2d Sess., 3 (1936). See 80 Cong. Rec. 3116 (1936) (remarks of Sen. Logan) (“[M]any have complained because the provisions of the bill apply to ‘any person engaged in commerce.’. . . The original Clayton Act contains that exact language, and it is carried into the bill under consideration. The language of the Clayton Act was used because it has been construed by the courts”). Given their common purposes, it should not be surprising that the common terms of the Clayton and Robinson-Patman Acts should be construed consistently with each other. See id,., at 8137 (remarks of Rep. Michener) (“The Patman-Robinson bill does not suggest a new policy or a new theory. The Clayton Act was enacted in 1914, and it was the purpose of that act to do just what this law sets out to do”); id., at 3119 (remarks of Sen. Logan) (purpose of Robinson-Patman bill is to strengthen Clayton Act); id., at 6151 (address by Sen. Logan) (same).

Justice O’Connor, in her dissenting opinion, questions our use of antitrust cases to define a word common to the antitrust laws. She would distinguish all of these cases uniformly holding States to be included in the *157word “persons,” because none has held “that States or local governments are persons for purposes of exposure to liability as purchasers under the provisions of the Clayton Act.” Post, at 177 (emphasis in original). The dissent takes no notice, however, of our decision last Term in Community Communications Co. v. City of Boulder, 455 U. S. 40, 56 (1982), in which the Court stated that the antitrust laws, “like other federal laws imposing civil or criminal sanctions upon ‘persons,’ of course apply to municipalities as well as to other corporate entities.” No authority is cited for the dissent’s distinction between “persons” entitled to sue under the antitrust laws and “persons” subject to suit under those laws.

See, e. g., Pfizer Inc. v. Government of India, supra, at 312-313 (noting “broad scope of the remedies provided by the antitrust laws”) (applying Sherman Act eases to construe Clayton Act); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948) (“[Sherman] Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated”) (emphasis added).

See, e. g., National Gerimedical Hospital & Gerontology Center v. Blue Cross of Kansas City, 452 U. S. 378, 388 (1981); City of Lafayette, 435 U. S., at 398, 399; Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1, 11-12 (1976); United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694, 719-720 (1975).

In one important sense, retail competition from state agencies can be more invidious than that from chainstores, the particular targets of the Robinson-Patman Act. Volume purchasing permits any large, relatively efficient, retail organization to pass on cost savings to consumers, and, to that extent, consumers benefit merely from economy of scale. But to the extent that lower prices are attributable to lower overhead, resulting from federal grants, state subsidies, free public services, and freedom from taxation, state agencies merely redistribute the burden of costs from the actual consumers to the citizens at large. An exemption from the Robinson-Patman Act could give state agencies a significant additional advantage in certain commercial markets, perhaps enough to eliminate marginal or small private competitors. Consumers, as citizens, ultimately will pay for the full costs of the drugs sold by the state agencies involved in this case. Because there is no reason to assume that such agencies will provide retail distribution more efficiently than private retail pharmacists, consumers will suffer to the extent that state retail activities eliminate more efficient, private retail distribution systems.

Justice O’Connor’s dissenting opinion repeatedly emphasizes that Congress in 1936 did not focus specifically on the issue presented here. See post, at 180, 182, 187, and n. 10. This may well be true, as the likelihood of state entities competing in the private sector was remote in 1936. It cannot be contended, however, that Congress specifically intended to allow the competition at issue here. In any event, the absence of congressional focus is immaterial where the plain language applies. See, e. g., United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 556-558 (1944); Browder v. United States, 312 U. S. 335, 339 (1941); De Lima v. Bidwell, 182 U. S. 1, 197 (1901).

“[Rep.] Lloyd: Would this bill, in your judgment, prevent the granting of discounts to the United States Government?

“Mr. Teegarden: Not unless the present Clayton Act does so. . . .

“[Rep.] Lloyd: For instance, the Government gets huge discounts. . . . Now, would that discount be barred by this bill?

“Mr. Teegarden: I do not see why it should, unless a discount contrary to the present bill would be barred — that is, the present law — would be barred by that bill.

“Aside from that, my answer would be this: The Federal Government is not in competition with other buyers from these concerns. . . .

“The Federal Government is saved by the same distinction .... They are not in competition with anyone else who would buy.

“[Rep.] Hancock: It would eliminate competitive bidding all along the line, would it not, in classes of goods that would be covered by this bill?

“Mr. Teegarden: You mean competitive bidding on Government orders?

“[Rep.] Hancock: Government, State, city, municipality.

“Mr. Teegarden: No; I think not.

“[Rep.] Michener: If it did do it, you would not want it, would you?

“Mr. Teegarden: No; I would not want it. It certainly does not eliminate competitive bidding anywhere else, and I do not see how it would with the Government.

“[Rep.] Hancock: You would have to bid to the city, county, exactly the same as anybody else; same quantity, same price, same quality?

“Mr. Teegarden: No.

“[Rep.] Hancock: Would they or could they sell to a city hospital any cheaper than they would to a privately-owned hospital, under this bill?

“Mr. Teegarden: I would have to answer it in this way. In the final analysis, it would depend upon numerous questions of fact in a particular case. If the two hospitals are in competition with each other, I should say then that the fact that one is operated by the city does not save it from the bill. If they are not in competition with each other, then they are in a different sphere.

*161“The facts of the situation are not present upon which to predicate a discrimination, in the nature of the case. I do not see that that question becomes any different under this bill from what it is under the present section 2 of the Clayton Act, for that bill also prohibits discrimination generally in the same terms that this does. But it differs in the breadth of the exceptions. That is the only difference between the two bills.” Hearings on H. R. 8442 et al. before the House Committee on the Judiciary, 74th Cong., 1st Sess., 208-209 (1935) (emphasis added) (hereinafter 1935 Hearings).

Justice Stevens agrees that state and local governments may be “purchasers” within the meaning of the Robinson-Patman Act. See post, at 171. He joins in Justice O’Connor’s dissent, however, on the basis of a novel theory: that state and local agencies may never be in “competition” with private parties within the meaning of the Act. See ibid. This is an economic fiction: If in fact a State participates in the private retail pharmaceutical market, it competes with the private participants. Justice Stevens relies on one statement by witness Teegarden in the 1935 House Hearings, but attaches no significance to a further statement by the same witness: “In the final analysis, it would depend upon numerous questions of fact in a particular case. If the two hospitals are in competition with each other, I should say then that the fact that one is operated by the city does not save it from the bill.” See 1935 Hearings, at 209 (emphasis added).

Teegarden subsequently submitted a written brief to the House Committee. He first rejected outright the desirability of any exemptions. See id., at 249. He then posed the question whether “the bill [would] prevent competitive bidding on Governmental purchases below trade price levels.” He stated that “[t]he answer is found in the principle of statutory construction that a statute will not be construed to limit or restrict in any way the rights, prerogatives, or privileges of the sovereign unless it so expressly provides — a principle inherited by American jurisprudence from the common law . . . .” But he also noted that “requiring a showing of effect upon competition . . . will further preclude any possibility of the bill affecting the Government.” Id., at 250.

All the cases Teegarden cited suggest that this sovereign-exception rule of statutory construction simply means that a government, when it passes *162a law, gives up only what it expressly surrenders. While the Robinson-Patman Act was pending before Congress, the Court stated that it could “perceive no reason for extending [the presumption against binding the sovereign by its own statute] so as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action.” United States v. California, 297 U. S. 175, 186 (1936). See California v. Taylor, 353 U. S. 553, 562-563 (1957). In the context of the Robinson-Patman Act, the rule of statutory construction on which Teegarden relied supports, at the most, an exemption for the Federal Government’s purchases. The existence of such an exemption is not before us. Cf. United States v. Cooper Corp., 312 U. S. 600, 604-605 (1941) (United States not a “person” under the Sherman Act for purposes of suing for treble damages). Moreover, Teegarden clearly assumed that governmental purchasing would not compete with private purchasing. That assumption, however, is inapplicable here.

Six months after the Act was passed, the Attorney General of the United States responded to an inquiry from the Secretary of War regarding the Act’s application “to government contracts for supplies.” 38 Op. Atty. Gen. 539 (1936). In ruling that such contracts are outside the Act, the Attorney General explained:

“[Statutes regulating rates, charges, etc., in matters affecting commerce do not ordinarily apply to the Government unless it is expressly so provided; and it does not seem to have been the policy of the Congress to make such statutes applicable to the Government. . . .

“The [Robinson-Patman Act] merely amended the [Clayton Act] and, in so far as I am aware, the latter Act has not been regarded heretofore as applicable to Government contracts.” Id., at 540.

Later in the letter, the Attorney General clarified that his reference was to “the Federal Government,” ibid., and gave other reasons “for avoiding a construction that would make the statute applicable to the Government in violation of the apparent policy of the Congress in such matters,” id., at 541. The Attorney General expressly relied upon Emergency Fleet Corp. v. Western Union Telegraph Co., 275 U. S. 415, 425 (1928), in which the Court upheld the granting of favorable telegraph rates to a federal corporation that competed with private enterprise.

*163The Attorney General’s opinion says nothing about the Act’s applicability to state agencies. Indeed, in the following year, the Attorney General of California expressly concluded that state purchases were within the Act’s proscriptions. See 1932-1939 Trade Cases ¶ 55,156, pp. 415-416 (1937). Two other early State Attorney General opinions simply do not consider whether the Act applies to state purchases for retail sales. See Opinion of Attorney General of Minnesota, 1932-1939 Trade Cases ¶ 55,157, p. 416 (1937); 26 Wis. Op. Atty. Gen. 142 (1937).

Representative Patman “presumed that the [United States] Attorney General’s reasons may be also applied to municipal and public institutions.” W. Patman, The Robinson-Patman Act 168 (1938). See also W. Patman, Complete Guide to the Robinson-Patman Act 30 (1963) (interpreting Attorney General’s opinion as exempting all governmental purchases). His interpretation is entitled to some weight, but he appears only to be interpreting — or erroneously extending — the Attorney General’s opinion and reasoning. Representative Patman’s personal intentions probably are better reflected in his introduction in 1951 and 1953 of bills to amend the Act to define “purchaser” to include “the United States, any State or any political subdivision thereof.” H. R. 4452, 82d Cong., 1st Sess. (1951); H. R. 3377, 83d Cong., 1st Sess. (1953). There is no legislative history on these bills, but it is arguable that he believed that the original intent needed to be stated expressly to negate his reading of the Attorney General’s contrary construction of the Act. In any case, Congress’ failure to pass these bills may be attributable to a reluctance to subject federal purchases to the Act. For example, in 1955,1957,1959, and 1961, Representative Keogh also unsuccessfully introduced bills to extend the Act to federal purchases only for resale. See H. R. 430, 87th Cong., 1st Sess. (1961); H. R. 155, 86th Cong., 1st Sess. (1959); H. R. 722, 85th Cong., 1st Sess. (1957); H. R. 5213, 84th Cong., 1st Sess. (1955).

It bears repeating, moreover, that none of these views — including Representative Patman’s — focuses on the state purchases alleged here: purchases to gain competitive advantage in the private market rather than purchases for use in traditional governmental functions. For the Department of Justice’s most recent statements regarding an exemption or immunity for state enterprises, see n. 37, infra.

The most important relevant event in the Robinson-Patman Act’s postenactment history is the amendment in 1938 excluding eleemosynary institutions, 52 Stat. 446, 15 U. S. C. § 13c. Whether the existence of an exemption in § 13c supports an exemption for certain state purchases depends upon whether § 13c is interpreted to apply to state agencies that perform the functions listed. That is a substantial issue in its own right. Compare H. R. Rep. No. 1983, 90th Cong., 2d Sess., 7-8, 78 (1968) (suggesting that § 13c does not include government agencies), with 81 Cong. Rec. 8706 (1937) (remarks of Rep. Walter) (§ 13c would apply to institutions financed by cities, counties, and States). See also City of Lafayette, 435 U. S., at 397, n. 14 (§13c includes “public libraries,” which “are, by definition, operated by local government”); Abbott Laboratories, 425 U. S., at 18, n. 10; 81 Cong. Rec. 8705 (1937) (remarks of Rep. Walter) (exemption codifies the intention of the drafters of the Robinson-Patman Act). We need not address this issue here.

See, e. g., Small Business and the Robinson-Patman Act: Hearings before the Special Subcommittee on Small Business and the Robinson-Patman Act of the House Select Committee on Small Business, 91st Cong., 73-77 (1969-1970) (William McCamant, Director of Public Affairs, National Association of Wholesalers); id., at 623 (Harold Halfpenny, counsel for the Automotive Service Industry Association); Small Business Problems in the Drug Industry: Hearings before the Subcommittee on Activities of Regulatory Agencies of the House Select Committee on Small Business, 90th Cong., 15-16 (1967-1968) (hereinafter 1967-1968 Hearings) (Earl Kintner, former FTC Commissioner, counsel for the National Association of Retail Druggists) (state purchases “probably” exempt). But see id., at 80 (remarks of Charles Fort, President, Food Town Ethical Pharmacies, Inc.) (“Robinson-Patman Act may prohibit this practice”); id., at 86 (same). There also was testimony that institutional purchasers frequently obtain drugs at lower prices than do retail pharmacies, see id., at 14, 258, 318, 1093-1094, and many witnesses complained that this discrimination adversely affected competition, see id., at A-140 to A-141, 253-262, 273, 292.

See H. R. Rep. No. 1983, supra n. 23, at 74.

After hearing his testimony, the Subcommittee posed further questions for Chairman Dixon about the eroding influence on the retail druggists’ market presented by: (i) expanding federal, state, and private group health care programs; (ii) the Federal Government’s ability to purchase from drug manufacturers at prices substantially below wholesale cost; and (iii) instances of hospitals, “both nonprofit and proprietary, selling to outpatients or even nonpatients.” Id., at 73. In his response to the Subcommittee, Chairman Dixon declined to discuss further the last category, which involved §13e issues. Id., at 74. His disclaimer of FTC authority envisioned state purchases for welfare programs, not for resale in competition with private enterprise. Thus, the issue presented here is most similar to the issue not discussed by Chairman Dixon.

Assuming that this postenactment commentary before the Subcommittee can be imputed to Congress — quite a leap given the failure of the Subcommittee Report to rely on it for its conclusions — “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U. S. 304, 313 (1960). See, e. g., Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 117-118, and n. 13 (1980); Oscar Mayer & Co. v. Evans, 441 U. S. 750, 758 (1979); United Air Lines, Inc. v. McMann, 434 U. S. 192, 200, n. 7 (1977) (“Legislative observations 10 years after passage of the Act are in no sense part of the legislative history”).

The Subcommittee also concluded that the 1938 amendment was “designed to afford immunity to private nonprofit institutions ... to the extent the sales are for the nonprofit institution’s ‘own use,’ ” H. R. Rep. No. 1983, supra n. 23, at 78, but that would indicate more the construction of § 13c than it would the intent of the 1936 Congress.

Indeed, our opinions suggest precisely the opposite. See City of Lafayette, supra, at 397, n. 14; Abbott Laboratories, supra, at 18-19, n. 10; California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 513 (1972).

The parties cite fewer than a dozen cases, many with unpublished opinions, that involve the application of the Robinson-Patman Act to state purchases. See nn. 31-33, infra. Cf. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 731 (1975) (affirming rule adopted by “virtually all lower federal courts facing the issue in the hundreds of reported cases presenting this question over the past quarter century”) (emphasis added); Gulf Oil Corp. v. Copp Paving Co., 419 U. S., at 200-201 (adopting consistent, “longstanding” construction of Robinson-Patman Act after “nearly four decades of litigation”).

See Pacific Engineering & Production Co. v. Kerr-McGee Corp., 1974-1 Trade Cases ¶ 75,054, p. 96,742 (Utah 1974) (dicta) (involving Federal Government as ultimate purchaser) (relying on Attorney General’s opinion as sole support), aff’d in part and rev’d in part, 551 F. 2d 790, 798-799 (CA10) (finding legitimate competition despite different prices), cert, denied, 434 U. S. 879 (1977); Sachs v. Brown-Forman Distillers Corp., 134 F. Supp. 9, 16 (SDNY1955) (Act inapplicable because there was no proof that sales affected plaintiff adversely), aff’d on opinion below, 234 F. 2d 959 (CA2) (per curiam), cert. denied, 352 U. S. 925 (1956); General Shale Products Corp. v. Struck Constr. Co., 37 F. Supp. 598, 602-603 (WD Ky. 1941) (finding no “sale” under the Act and alternatively holding the Act inapplicable because “[n]either the government nor a city in its purchase of property considered necessary for the purposes of carrying out its governmental functions is in competition with another buyer who may be engaged in buying and reselling that article”) (emphasis supplied), aff’d, 132 F. 2d 425, 428 (CA6 1942) (expressly reserving issue whether Act applies to sales to state agency), cert. denied, 318 U. S. 780 (1943). The Sachs court also indicated, in dicta, that it was unclear whether the Act applied to state purchases. 134 F. Supp., at 16.

Cf. Mountain View Pharmacy v. Abbott Laboratories, No. C-77-0094 (Utah, Sept. 6,1977) (unpublished opinion) (consent by plaintiffs to dismiss with prejudice Act claims based on sales to state agencies), aff’d in part and *168rev’d in part, 630 F. 2d 1383 (CA10 1980) (complaint insufficient because it failed to identify products or purchasers subject to discriminatory treatment); Portland Retail Druggists Assn. v. Abbott Laboratories, No. 71-543 (Ore., Sept. 11, 1972) (unpublished, oral opinion), vacated and remanded, 510 F. 2d 486 (CA9 1974) (§ 13c applied), vacated and remanded, 425 U. S. 1 (1976). One District Court has suggested in an alternative holding that there is an exemption for state purchases for nonconsumption use. Logan Lanes, Inc. v. Brunswick Corp., No. 4-66-5, (Idaho, May 26, 1966) pp. 4-5 (unpublished opinion), aff’d, 378 F. 2d 212, 215-216 (CA9) (purchases by Utah State University within scope of § 13c; expressly declined to address “so-called governmental exemption”), cert. denied, 389 U. S. 898 (1967). All of these cases predate our decision in City of Lafayette.

See Burge v. Bryant Public School District, 520 F. Supp. 328, 330-332 (ED Ark. 1980), aff’d, 658 F. 2d 611 (CA81981) (per curiam); Champaign-Urbana News Agency, Inc. v. J. L. Cummins News Co., 479 F. Supp. 281, 286-287 (CD Ill. 1979) (although Act inapplicable to federal purchases, state agencies might face an opposite result), aff’d, 632 F. 2d 680 (CA7 1980); A. J. Goodman & Son v. United Lacquer Manufacturing Corp., 81 F. Supp. 890, 893 (Mass. 1949). Other cases cut against any exemption for state purchases. See Municipality of Anchorage v. Hitachi Cable, Ltd., 547 F. Supp. 633, 637-641 (Alaska 1982); Sterling Nelson & Sons v. Rangen, Inc., 235 F. Supp. 393, 399 (Idaho 1964), aff’d, 351 F. 2d 851, 858-859 (CA91965), cert. denied, 383 U. S. 936 (1966); Sperry Rand Corp. v. Nassau Research & Development Associates, 152 F. Supp. 91, 95 (EDNY 1957). Cf. Reid v. University of Minnesota, 107 F. Supp. 439, 443 (ND Ohio 1952) (expressly not addressing whether state agency exempt from Act when engaged in a business in the same manner as other business corporations).

See 5A Z. Cavitch, Business Organizations § 105D.01[8][c] (1973 and Supp. 1982) (opinions “divided” whether Act is applicable); 4 J. von Kalinowski, Antitrust Laws and Trade Regulation §24.06, p. 24-70 (1982) (“there is some conflict among the authorities as to whether sales to states and municipalities are covered by the Act”); id., §24.06[2]; E. Kintner, A Robinson-Patman Primer 203 (1970) (“Although [the Attorney General’s] opinion appears to have settled the matter where the federal government is concerned, some controversy has arisen over the applicability of the act to purchases by state and local governments”); F. Rowe, Price Discrimination Under the Robinson-Patman Act §4.12, p. 84 (1962).

Some deal only with sales to the Federal Government. See Letter from Comptroller General to Robert F. Sarlo, Veterans Administration (July 17, 1973), reprinted in 1973-2 Trade Cases ¶ 74,642. Almost all fail to mention, much less decide, whether the Act applies to state purchases for retail sales. See Report of the Attorney General Under Executive Order 10936, Identical Bidding in Public Procurement 11 (1962).

See 62 Cal. Op. Atty. Gen. 741 (1979); 47 N. C. Atty. Gen. 112, 115 (1977); [1948-1949] Ga. Op. Atty. Gen. 723, 727 (1949) (if state agency competes with private enterprise, it is subject to Act).

In its 1977 Report of the Task Group on Antitrust Immunities, at 25, the Department of Justice stated:

“The mere fact that a state has authorized a state-owned enterprise to engage in commercial activity should not be sufficient to immunize all activities of the enterprise from the antitrust laws. That test removes the clearly sovereign activities of a state from the antitrust scrutiny of the federal government while holding the commercial activities of a state-owned enterprise to the same standards requirfed] of all who engage in commercial transactions in the market.” Reprinted in Antitrust Exemptions and Immunities: Hearings before the Subcommittee on Monopolies and Commercial Law of the House Committee on the Judiciary, 95th Cong., 1st Sess., 1890 (1977).

Cf. Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F. 2d 354, 360-362 (CA2 1964) (the charter of a ship to haul grain by a state instrumentality not a sovereign activity that would justify applying the sovereign immunity doctrine).

The dissent of Justice O’Connor relies in large part, not on the words of the statute, or its legislative history, but on assertions that a “general consensus [existed] in the legal and business communities that sales to governmental entities are not covered by the Robinson-Patman Act.” Post, at 182. See also post, at 174 (Stevens, J., dissenting). Justice O’Con-nor is correct that some in the business and legal community did think that an exemption existed for all state purchases. See post, at 185-187, and nn. 19 and 20. But to say there is a “consensus” is to disregard the opinion of commentators, see n. 34, supra; the views expressed that the Act is applicable to state purchases, see supra, at 161, 162-163, n. 22, and 169, and n. 37; and the most recent, relevant opinion of the Department of Justice, see supra, at 169, and n. 37. It is more accurate to say that this was an unsettled question of federal law that demanded this Court’s attention.

Under our interpretation, the Act’s benefits would accrue, precisely as intended, to the benefit of small, private retailers. See 1935 Hearings, at 261 (Teegarden recommending passage “for the protection of private rights”).