Caller-Times Publishing Co. v. Triad Communications, Inc.

DISSENTING OPINION

November 13, 1991*

DOGGETT, Justice.

“Put [them] out of business. Do whatever it takes. Squish [them] like a bug.” 1 A Texas jury will never be able to hear these words, no matter how malicious the utterance of a predator intent on annihilating a Texas business. Representing an extraordinary setback for consumers, independent businesses, and law enforcement, today’s opinion imposes faulty economic theory instead of implementing the realistic antitrust protection that the legislature mandated.

Today’s opinion embraces the peculiar philosophy of Judge Robert Bork, who has long insisted that the best way to address predatory pricing, price fixing, and other anticompetitive practices is to treat them as curious abstractions and accord them legal approval. Categorizing antitrust cases as “economic asininities,”2 Bork claims that “efficiency-based monopolies are always better for consumers than any alternative antitrust can produce. [All business] is better left alone.” Robert H. Bork, The Antitrust Paradox 196 (1978) (emphasis added) (hereinafter Bork, The Antitrust Paradox). With similar enthusiasm, the court effectively declares the death of any meaningful right to object to predatory practices. Of all the many cases discussed today, not one involves a business that has prevailed in a claim against a predator under an exclusively cost based rule of the general type that the court now requires.3 Professing an awareness that the “environment” encountered by “small business is [already] tough enough,” the court offers a *590peculiar cure: facilitate the elimination of small business. This approach is like a page from the Old West — “we had to shoot it, to get it out of its pain.”

In this tragic first interpretation of the Texas Free Enterprise and Antitrust Act, Tex.Bus. & Com.Code §§ 15.01-.51 (1983), giant enterprises are left to finish off what remains of our already economically hard-pressed independent Texas businesses.4 Because the purpose of this statute is to promote competition, not monopolization, I vigorously dissent. What is at stake here is not merely the wisdom of the court’s endorsement of the position of one major newspaper in this case5 but the extent of future antitrust enforcement in this state. I would afford the protection that the legislature determined Texas businesses and consumers required, that a Corpus Christi judge and jury attempted to enforce, that the court of appeals affirmed and which this court now rejects.

I.

While seeking to limit the large combinations and monopolies plaguing Texas consumers and small businesses, the first state antitrust legislation, enacted in 1889, took a very narrow approach.6 It proscribed enumerated activities without regard to whether competition was actually being limited. The courts mechanically applied these per se prohibitions rather than considering the underlying purposes of the statute. See, e.g., Schnitzer v. Southwest Shoe Corp., 364 S.W.2d 373, 375 (Tex. 1963). Some monopolistic practices were not forbidden while other activities involving neither anticompetitive intent nor effect were condemned.7

With a steady decline in the relative size of the independent business sector, Texans were by the 1970’s confronting far different economic realities than those with which their forebears had coped. Initial legislative attempts to update and strengthen state antitrust law enforcement encountered opposition from some of the largest economic enterprises in the nation. Only after attempts in five separate legislative sessions8 was it possible to gain final approval for a complete revision of the statutory scheme. Finally, in 1983, the legislature enacted what is conceded to be a “sweeping reform” designed to “afford courts broader powers of protection” than previously available. At 580. This legislative effort had the vigorous support of the state’s chief law enforcement officer in two successive administrations, consumer groups, and some Texas businesses.9

A major thrust of the antitrust law revision was to eliminate the laundry list of per se violations. As one business representative noted, the reform “very substantially improves the posture of business and the *591consumer with respect to establishing a Rule of Reason_” 10 Derived from federal antitrust law, the rule of reason considers the facts of each case to determine whether or not the policy behind antitrust law — the preservation of competition — has been violated. As Justice Brandéis explained:

The true test of legality is whether the restraint [of trade] imposed is such as merely regulates and perhaps thereby promotes competition, or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business....

Board of Trade of Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918); see also, e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 59-62, 31 S.Ct. 502, 515-16, 55 L.Ed. 619 (1911).

In applying the Texas Free Enterprise and Antitrust Act, the rule of reason mandates a determination of whether an alleged violation has any actual anticompeti-tive purpose or effect.11 What must be considered is the totality of circumstances, not just an isolated course of business conduct. The jury must be allowed to examine the entire facts of the case and determine whether there was any anticompetitive behavior in contravention of the objectives of the legislature. The new law replaced the “largely mechanical” application of the pri- or law,12 and was designed “to in effect say don’t look just at the form of the business relationship, look to see if it really has an anti-competitive effect_”13

II.

Henceforth what must be proven in order to establish predation in Texas is as follows:

(1) the seller has an objectively reasonable expectation of recouping its losses due to the alleged predatory pricing by charging higher prices later, that is, the predatory pricing is economically feasible; and (2)(a) the price charged is below average variable cost; or (b)(i) there are substantial barriers to market entry; (ii) the seller is charging a price below its short-run profit-maximizing price and its average total cost; and (iii) the benefits of the seller’s price depended on its tendency to discipline or eliminate competition and thereby enhance the firm’s long-term ability to reap the benefits of monopoly power.

At 588 (footnotes omitted). A mere reading of this language suggests how difficult it will be for judges to interpret and for juries to comprehend. Although aware that there has never been judicial adoption of such a strict cost-based test, at 587,14 the court imposes a standard which may be the most regressive in the nation.15 Vague and convoluted, this test depends upon unde*592fined terms that can only be clarified on a costly battlefield laden with economists and accountants dueling over largely arbitrary and potentially incomprehensible numbers.

As a predicate to this test, the court declares that the “subjective intent of the seller should not be a factor.” At 587. Excluding all such evidence of intent to undertake anti-competitive pricing schemes, this new standard is based solely on a checklist of figures on cost, price and profit.16 Companies pricing above the undefined level of “average variable cost” will never be accountable for predation, while firms charging below that arbitrary line usually will. This is nothing but a return to the mechanical pre-Act practice of “just [looking] at the form of the business relationship.”17 Removing all reason from this “rule of reason,” the court now stymies the legislative goal of realistic antitrust enforcement and entangles us once again in the impractical strictures of the per se rules. “[RJelentless application” of law and economics theory produces “new per se rules — that of per se legality.” 8 Texas Antitrust Bulletin, Oct. 1986, at 24 (emphasis in original).18

An examination of this court’s economics-driven rule highlights both the difficulty and lack of predictability in its application. In the confusing economic feasibility part of its test, the court fails to explain how without intent evidence a victim can ever show that the predator “has an objectively reasonable expectation of recouping its losses,” at 582. Likewise, no guidance is provided regarding what type of evidence can establish this “objective” expectation.

The second part of the test — which is sure to subsume the entirety — is that the price charged be below “average variable cost,” a term which the court leaves vaguely defined. In contrast with “fixed costs,” such as property taxes, which do not vary with changes in output, “variable costs” are those which do vary with production level, often including such items as labor and maintenance costs.19 However, the factors which go into calculating “average variable cost” can and do vary in every case.20 In each firm, there are unique considerations of what costs are variable.21 *593Thus, litigants will be forced to engage in a costly battle of experts over which costs are variable and which fixed, with the outcome unpredictable from one case to the next.22

Additionally, there is no justification offered for the selection as the critical variable of “average variable cost” rather than “total fixed cost”. The latter term appears to be the intended indicator for federal antitrust purposes. See McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1499-1500 (11th Cir.1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989) (Congress focused on the total cost to produce a product, including a “fair profit” margin).23

Neither of the two alleged exceptions to the average variable cost rule offered by the court are readily decipherable. Again the court uses terms without explanation— what constitutes a “substantial barrier to entry” is left to the imagination.24 Nor does such terminology account for the fact that predatory pricing “itself [may] operate as an effective hindrance to new entry even in situations where the conventional barriers to entry are weak or absent.” B.S. Yamey, Predatory Price Cutting: Notes and Comments, 15 J.L. and Econ. 129, 142 (1972) (hereinafter Yamey); see also Harry S. Gerla, The Psychology of Predatory Pricing: Why Predatory Pricing Pays, 39 Sw.L.J. 755, 757 (1985) (hereinafter Gerla).

The second exception to the average variable cost rule occurs when the predator prices below its “short-run profit-maximizing price” and its “average total cost.” At 586. Since “short-run profit-maximizing price” and “average total cost” may be mutually exclusive terms, it is difficult to comprehend what the court intends.25 For instance, what is a “short-run profit-maximizing price”? This phrase is so vague as to be meaningless when used in a legal test, for there is and can be no one predictably certain “profit maximizing price” throughout a market. Furthermore, it may be inappropriate to apply a “short-run” standard to predatory pricing, which is premised on long-term strategy. See F.M. Scherer, Predatory Pricing and the Sherman Act: A Comment, 89 Harv.L.Rev. 869, 880 (1976) (hereinafter Scherer) (short-run profit maximization is not a rational economic goal; rather, business should rationally be concerned with long-term profits).

*594The final element of the court’s test, offered as part of the “exception” to the average variable cost rule, is that the benefit of the lowered price must be the “discipline or eliminatpon of] competition.” At 588. While this might otherwise warrant consideration of intent, it is really a simple restatement of the “economic feasibility” part of the test, since it is concerned only with “long-term ability” to reap profits from monopoly.

Economic theory can be a useful tool, but only in skilled hands. “If courts are going to practice economics, they better do so correctly and with some understanding of what they are doing. In the context of antitrust law, economic theory can be a tool of factual analysis or it can be a type of formalistic, doctrinal constraint on relevant factual inquiry.” Peter C. Carstensen, Predatory Pricing in the Courts: Reflection on Two Decisions, 61 Notre Dame L.Rev. 928, 943 (1986) (hereinafter Carsten-sen). Over-reliance on a pure cost-based analysis is particularly unwise because such tests are “carved from economic assumptions, not from antitrust statutes and judicial precedents.” McGahee, 858 F.2d at 1495.

These economic assumptions have numerous shortcomings when applied to the real world and the context of antitrust laws; a cost-based test relying on average variable cost and based on broad economic theories is difficult to apply in specific fact patterns26; it is too short-term oriented27; it is based on terms so flexible as to be necessarily vague28; it ignores economic factors29; it relies on implausible, hypothetical scenarios30; it excessively favors large, multi-produet firms31; it assumes a perfect market which simply does not exist in the real world32; and it uses economic terms which are inapplicable to actual business accounting standards33. As a result of these faults, such a cost-based test is simply too permissive of predatory activity.34 Of all the cases discussed by the court not one involves any plaintiff ever prevailing under a cost-oriented rule.35

The alleged justification for today’s misdeed is “predictability,” at 581, to protect business from the “chilling effect” of “vague[ness].” At 581. The court’s fascination with economic theory has resulted, however, in a predictable per se cost-based test made unpredictable. Because of the use of vague terminology, the rule will mechanically be applied, but the result will vary from case to case. Assume a product market in which there are only two competing firms, one of which enjoys highly modernized production facilities involving sub*595stantial fixed costs, but low variable costs for labor. The second company, identical in size, with older production facilities necessitating more employees, has lower fixed costs and higher variable costs. The first firm, perhaps in an effort to do away with its rival, or perhaps simply as a promotion, drops its product prices below the fixed cost of production, but still above its very low average variable cost. To remain competitive, the second firm joins in a price war, dropping prices to exactly the same level as its rival. Under the court’s test, the first firm has not engaged in predatory pricing, but the second, with exactly the same size, same product, same market, and charging exactly the same price is guilty of predation.36 Ironically, absent intent evidence, the first business, which started the price war, would be entitled to recover from the second under the court’s test.

As a result of the court’s new rule, large, multi-product firms will be generally ignored. Such an operation can price above its average variable cost, continue to make overall profits, yet drive a specific competitor out of business. This is accomplished by drastically cutting prices on one product while charging higher prices on other products for which there is high demand or which already enjoy market dominance in the relevant market. See Joseph F. Bradley & George A. Hay, Predatory Pricing: Competing Economic Theories and the Evolution of Legal Standards, 66 Cornell L.Rev. 738, 789 (1981) (hereinafter Bradley & Hay). Alternatively, for some types of multicomponent products, the price can be lowered on one component, thereby increasing demand. The firm can create overabundance of that one part, which will result in higher demand for the other components, since more than one part is needed to create a finished product. When demand increases, the price on those other components can be raised drastically. Such behavior, no matter how vicious the intent, can never be illegal under the court’s test. Consumers will suffer from the higher prices on the other products, while competing (and smaller) businesses forced from the market. Ironically, the result is that the bigger the business, the less chance that it will be found to be a monopoly.

III.

The Texas Free Enterprise and Antitrust Act provides that it will be construed so as to accomplish the purpose of maintaining and promoting competition and providing the benefits of that competition to consumers, and in harmony with federal law to the extent consistent with these purposes. Tex.Bus. & Com.Code § 15.04. Today the court follows the most restrictive of federal precedent, ignoring the state statutory purpose, and seeks to harmonize on a matter for which there is no harmony among the federal courts. Because the state statute, unlike the federal, intends not only to maintain but also to promote competition, “Texas courts could require a lesser showing of anticompetitive tendency or effect to establish a violation of the Texas Antitrust Act than a federal court would under federal law.” Steven Baron, Increasing Importance of State Antitrust Enforcement: The Texas Free Enterprise and Antitrust Act, in State Bar of Texas Institute, Antitrust in the 80’s C-13 (1985) (hereinafter Baron). Professor Richard Posner has suggested that state legislatures and courts may be best equipped to develop workable antitrust laws. Richard A. Pos-ner, Exclusionary Practices and the Antitrust Law, 41 U.Chi.L.Rev. 506, 535 n. 72 (1974) (hereinafter Posner). The Texas Legislature has done its part; the Texas Supreme Court has not. By failing to utilize this opportunity to exercise power on behalf of its citizens independent of the federal judiciary, thereby affording meaningful protection to the state’s citizenry, *596the court ignores both state’s rights and state’s responsibilities. Texans do not stand to profit by our rejection of that power. Furthermore, an opportunity has been lost to make a worthwhile contribuare tion to the body of antitrust law in this nation, guaranteeing that other states cannot follow what could have been our lead.

Disregarding our State’s unique statute, the court looks to federal precedent much like a train traveler observes towns passing along the way — interesting so long as they don’t slow reaching the ultimate destination. The court cites authority that does not support barring intent evidence,37 and disregards opinions in five additional federal circuits which specifically allow such evidence.38

The United States Supreme Court has also considered intent evidence to be vital in reaching a finding of predation. In the context of antitrust, “knowledge of actual intent is an aid in the interpretation of facts and prediction of consequences.” Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 696 n. 12, 87 S.Ct. 1326, 1333 n. 12, 18 L.Ed.2d 406 (1967), quoting Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372, 53 S.Ct. 471, 478, 77 L.Ed. 825 (1933). That Court further recognized that “[cjourts and commentators alike have noted that the existence of predatory intent might bear on the likelihood of injury to competition.” Id., 386 U.S. at 702, 87 S.Ct. at 1336. See also Aspen Skiing Co. v. Aspen Highlands Skiing, 472 U.S. 585, 602 & 610, 105 S.Ct. 2847, 2857 & 2861, 86 L.Ed.2d 467 (1985) (upholding a verdict against defendant because “the record in this case comfortably supports an inference that the monopolist made a deliberate effort to discourage its customers from doing business with its rival.”); White Motor Co. v. United States, 372 U.S. 253, 261-62, 83 S.Ct. 696, 700-01, 9 L.Ed.2d 738 (1963) (applying a rule of reason and hesitating to establish per se violations). Thus, by adopting a rule which purports to exclude all evidence of intent to violate the Texas Free Enterprise and Antitrust Act through predatory pricing, this court adopts a per se rule so extreme as to have little precedent in this century. The claim that Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) requires a showing of *597“pricing below some appropriate measure of cost,” at 583, is misleading, since the Supreme Court explicitly declined to apply a pure cost-based test excluding all intent evidence. 475 U.S. at 584-85 nn. 8 & 9,106 S.Ct. at 1354-55 nn. 8 & 9. Furthermore, Matsushita, which was an action under section 1 of the Sherman Act for conspiracy, is distinguishable from a section 2 action for attempted monopoly.39 Since the latter involves an attempt to monopolize, intent would, by definition, play a central role.40

The court’s turn away from enforcement of the antitrust laws is derivative of the philosophy of Robert Bork, who questions the wisdom of antitrust laws altogether, labelling them a “paradox” that harms consumers by interfering with the “economic efficiency” of big business, including monopolies. Bork, The Antitrust Paradox, at 4, 101 & 196.41 Rejecting the antitrust jurisprudence of Oliver Wendell Holmes42 and Louis Brandéis43, this view prefers the approach of William Howard Taft, generally thought of as an apologist for the giant trusts that dominated America in his era.44 Though the court denies its lineage to Bork, his thinking pervades the opinion.45 That predatory conduct is of little concern represents one of the court’s major unstated premises. This belief rests not on economic proof but on a generalization that predatory pricing is rare which is derived largely from Bork in Matsushita, 475 U.S. at 589-90, 106 S.Ct. at 1357 (citing Bork, The Antitrust Paradox, at 149-155), the case upon which the court explicitly “relies”. At 581-582.

*598The better reasoned position is that of Justice Brandéis, who observes that predatory pricing is “the most potent weapon of monopoly.” Louis D. Brandéis, Competition that Kills in Business — A Profession 236, 254 (1914). Numerous respected legal commentators and economists have agreed that predatory pricing remains a real danger in today’s business environment.46

Moreover, predatory pricing was a central concern in the passage of federal antitrust legislation.47 The House Report on section 2 of the Clayton Act notes that:

In the past it has been a most common practice of great and powerful combinations engaged in commerce — notably the Standard Oil Co., and the American Tobacco Co., and others of less notoriety, but of great influence — to lower prices of their commodities, oftentimes below the cost of production in certain communities and sections where they had competition, with the intent to destroy and make unprofitable the business of their competitors, and with the ultimate purpose in view of thereby acquiring a monopoly in the particular locality or section in which the discriminating price is made.

H.R.Rep. No. 2287, 74th Cong., 2d Sess. 8 (1914). The Senate Report added that:

Every concern that engages in this evil practice [discriminatory pricing] must of necessity recoup its losses in the particular communities where their commodities are sold by raising the price of the same class of commodities above their fair market value....

S.Rep. No. 698, 63d Cong., 2d Sess. 3 (1914).

Convinced that predatory pricing is not a significant concern, the court indulges in a self-fulfilling prophecy by adopting a test which will rarely if ever allow for a showing of predatory pricing. This proposition rests on a still weaker assumption that business decisionmaking is inevitably objective. In its conclusion that “unless predatory pricing is economically plausible, business has no motive to engage in that practice,” at 581, the court disregards the real world, where choices are made by human beings who undertake strategies dictated not only by economic reason, but by psychological and business tactics. Posner at 518; Gerla at 756-57; Brodley & Hay at 742 (citing the example of a dominant firm which eliminates one small rival as a “lesson” to other rivals); Oscar E. Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L.J. 284, 287 (1970) (hereinafter Williamson). Unfortunately, the court today, like the law and economics enthusiasts whose unrealistic thinking it prefers, has forgotten that the average person is not “homo económicas ”48 (“economic person”), but rather homo sapiens (“related to persons”).49 Take, for example, the company which instructed its salesmen to put a competitor out of business even if “it meant give [services] away.” Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260-61, 109 S.Ct. 2909, 2912, 106 L.Ed.2d 219 (1989). One purpose of a legal system is precisely to protect potential victims of offenses ranging from murder to securities violations against what is often the irrational behavior of other human beings.

*599IV.

A test better suited for an accurate determination of illegal pricing is one which considers evidence both mathematic and human. Professor Lawrence Sullivan explains in his antitrust law treatise that:

If we are going to rely on judges and jurors to discover predatory business conduct we cannot deprive them of all traces of the juices of the situation. A firm which seeks to drive out or exclude rivals by selling at unremunerative prices will leave human traces.... If there is one task that judges and juries, informed through the adversary system, may really be good at, it is identifying the pernicious in human affairs. To contend that the conventional formulation ... ought to be amended to one which looks solely to an effect validated by economic studies is to assume too much about the precision of applied economics and to assume too little about the value of more humanistic modes of inquiry.

Lawrence A. Sullivan, Antitrust § 43, at 110 (1977). Simply put, and as this court admits, “[ajlthough pricing below average total cost and above average variable cost is not inherently predatory, it does not follow, however, that such prices are never predatory.” William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., Inc., 668 F.2d 1014, 1035 (9th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982); see also Yamey at 129-135. For this reason, numerous sources have advocated consideration of intent evidence in defining predatory pricing.50 To do otherwise by substituting cost rules for intent evidence will result in “economically unsound decisions.” Scherer at 890 (emphasis added).

The advantage of admitting intent evidence is that it offers “vital elements of flexibility.” Eugene M. Singer, Antitrust Economics and Legal Analysis 49 (1981). As the Eighth Circuit concludes, “ ‘rigid adherence to a particular cost-based rule’ ... can produce injustice_” Henry v. Chloride, Inc., 809 F.2d 1334, 1346 (8th Cir.1987) (quoting William Inglis & Sons, 668 F.2d at 1035). One economist has concluded that “there can be predatory intent in price cutting whether or not the aggressor sets its prices above or below its costs_” Yamey at 134.

The preferable approach, therefore, is to apply a rule of reason and to look at the totality of the circumstances, considering evidence both of economics and of motive, and not to create any cost-based exclusionary rule. Instructional Sys. Dev. Corp. v. Aetna Cas. & Sur. Co., 817 F.2d 639, 646 (10th Cir.1987); Henry, 809 F.2d at 1354 (Larson, J., concurring).51 Various other courts allow proof of intent, but shift the burden of proof depending on the cost evidence. William Inglis & Sons, 668 F.2d at 1033-39; Transamerica Computer Co., Inc. v. IBM Corp., 698 F.2d 1377, 1386-89 (9th Cir.), cert. denied, 464 U.S. 955, 104 S.Ct. 370, 78 L.Ed.2d 329 (1983); Henry, 809 F.2d at 1346; D.E. Rogers Assoc., Inc. v. Gardner-Denver Co., 718 F.2d 1431, 1437-38 (6th Cir.1983), cert. denied, 467 U.S. 1242, 104 S.Ct. 3513, 82 L.Ed.2d 822 (1984). Indeed, these approaches follow the traditional, or “conventional” rule, see Lawrence A. Sullivan, Economics and More Humanistic Disciplines: What Are the Sources of Wisdom for Antitrust?, 125 U.Pa.L.Rev. 1214, 1230-31 (1977); it is today’s ruling that is the radical innovation.

A flexible rule of reason test would continue to allow analysis of cost and price and the existence of barriers to market entry, but would also consider the facts of the case: the nature of the market, including the number of competitors; the type of *600goods or services in question; the condition of the predator including its age, the name recognition of its brands and the health of its production facilities; the number of different products produced by the parties; their relative market strength; market demand; and, of course, the conduct and intent of the parties. See Posner at 520; Martin J. Simkovic, Comment, Judicial Tests to Determine Predatory Pricing before and after Matsushita, 44 Miami L.Rev. 839, 841-42 (1990) (hereinafter Judicial Tests).52

That “predatory pricing is difficult to distinguish from vigorous price competition,” at 587, should not negate such a flexible approach; indeed, this is the very reason we allow triers of fact to make a determination only after considering all of the evidence, why we employ juries rather than computers to reach decisions in even the hardest of cases.53 Indeed, the only way to tell predatory pricing from healthy competition is by motive. Malcolm v. Marathon Oil Co., 642 F.2d 845, 853 (5th Cir. 1981).

The removal of critical matters from the hands of the jury is one of the greatest injuries inflicted by the court today. If numbers add up to a trial judge’s satisfaction, the case will end without the jury ever being allowed to see crucial evidence of guilt or innocence. In the present case, the court completely disregards a jury’s conclusion that the Texas antitrust laws have been wilfully violated.

V.

By rejecting a rule of reason for a per se mathematic analysis, the majority invites disastrous results. Monopolists will be free to price at will so long as they can justify their prices as greater than some “profit maximizing price,” or are the slightest bit above “average variable cost.” Taking advantage of their dominance over the market, and their resulting ability to produce at costs far lower than any new market participant, they can set prices at levels designed to destroy competitors. Having utilized this method to guarantee a monopoly in the relevant market, they can then recoup their losses with unimpeded price increases. Even with compelling and direct evidence of a predatory intent, there can be no liability. This result clearly undermines the effectiveness of the Texas Antitrust Act.

To escape liability in Texas a monopoly need only have an accountant maintain records which demonstrate pricing at least one penny above its self-determined average variable cost or short-term profit figure. The absence of intent evidence invites abuse of this process: “[i]f you really wanted to know what caused the unsavory flavor of the monopoly broth, you would not just audit the chef’s books of account; you would also take a look at his recipe.” MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1177 (7th Cir.1983) (Wood, J., concurring in part and dissenting in part), cert, denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). Accountants have great leeway in deciding which costs are included as “variables,” and the business can set for itself what its ideal profit figure might be.54 The court’s opinion is tantamount to an instruction to cook the books, for the accountant to massage the numbers in order to cover any malice, because any real evidence of intent will be ignored.

*601VI.

This flawed test handcuffs district attorneys throughout Texas as well as the attorney general in public enforcement of the antitrust laws. By today’s action criminal provisions of the Texas Free Enterprise and Antitrust Act, Tex.Bus. & Com.Code § 15.22, have been destroyed. A culpable mental state is a necessary element of a criminal offense, Tex.Penal Code § 6.02 (1974), and cannot be shown without intent evidence. This is particularly apparent in cases involving attempt to monopolize under subsection (b) of section 15.05, since “attempt” implies intent to take an illegal action. See Robinson v. State, 630 S.W.2d 394, 398 (Tex.Civ.App.—San Antonio 1982, writ ref d). In an attempt to avoid responsibility for the permissiveness it encourages, the court refers to the constitutional limitation on its jurisdiction to “address the requirements of a criminal violation.” At 588. How truly incredible! The underlying assumption, both unspoken and unsound, is that this first interpretation of the relevant statute will have no influence on public officials. What law enforcement authority would consider undertaking the already complex and difficult prosecution of a predatory violator, when the Supreme Court of Texas has insisted that an element critical to conviction must be written out of the law? Moreover, the same barriers that this opinion creates for private litigants will also serve to defeat civil enforcement by the Attorney General. Tex.Bus. & Com. Code § 15.20.

For any litigant somehow surviving the wreckage that remains in Texas antitrust law after this decision, the court has eliminated any ability to recover the treble damages mandated for “willful or flagrant” conduct. Tex.Bus. & Com.Code § 15.-21(a)(1). Acknowledging that something “above and beyond” mere proof of predation is required, the court conveniently declines to decide “what is appropriate....” At 588. The real reason for this failure to give even a hint is that there is no “appropriate proof”. Without intent evidence, “willful” conduct, which obviously includes an element of motive, cannot be shown. The court has effectively repealed the treble damages remedy that the legislature determined to be so necessary to discourage anticompetitive practices.

While the immense damage inflicted today is concentrated in permissiveness toward predators, the court presents at least a theoretical problem for some who engage in justifiably substantial price cutting. The court’s arbitrary rule of illegality for pricing below average variable cost denigrates any legitimate reason to price below that cost in the short run, such as promotions, shifts in demand, or economies of scale. See Sullivan, Antitrust § 43, at 111; Wesley J. Liebler, Whither Predatory Pricing? From Areeda and Turner to Matsushita, 61 Notre Dame L.Rev. 1052, 1073 (1986); Posner at 519. A test of the type adopted today, which is based on “short-term profit-maximizing price,” has been rejected in perhaps the most extensive discussion of economics and antitrust law ever undertaken by a federal court exactly because: “A rule of predation based on the failure to maximize profits would rob consumers of the benefits of any price reductions by dominant firms facing new competition.” MCI Communications, 708 F.2d at 1114.

An overly rigid test for predatory pricing could affect large cost-cutting retail chains intending only to make a profit by selling more for less. Moving into a new market, such a corporation may well price below its average variable cost as a means of entry. Though anticipating long-run profits from increased sales, the chain may lose money in the short-run. The court’s test would find such a chain liable every time it attempted to expand. As one economist summarizes, “unless the courts were willing to explore the ... monopolist’s behavior, it would lead to the condemnation of firms whose worst sin was to maintain a low-price, high-output ... strategy_” Scherer at 883.55

*602VII.

A test based on the rule of reason would preclude blind reliance on economic theory without exploration of the facts and circumstances of the parties involved. This court should have considered the facts of this case, including the unique nature of the newspaper industry markets. See S. Chester Oppenheim and Carrington Shields, Newspapers and the Antitrust Laws 1-15 (1981). The court conveniently ignores the practice of the Caller-Times in offering reductions solely to advertisers already doing business with Wheels and Keels; other advertisers received no discounts. See 791 S.W.2d at 166. As a valid indicator of predatory intent, see Sullivan, § 43, at 112, such targeted pricing reductions could be absorbed by a large newspaper without its having to price below average variable cost throughout its market.56 Likewise, the court concludes without explanation that “Triad elected not to present any evidence on the price-cost relationship,” at 580, when there was testimony both as to the profit margin and costs of the newspaper.57 But, under the court’s formulation, the facts have little or nothing to do with the legality of the conduct.

Disregarding the particular circumstances of this case is nowhere so apparent as with the court’s conclusion that it is unnecessary to remand the antitrust issue, despite the fact that “this is a question of first impression” in Texas. At 578. Failure to remand in this instance is not excused by the court’s claim that adoption of this test was “predictable.” Triad had no way of knowing that this court would bar all intent evidence when most federal courts allow it. Because today’s decision is the first clue in Texas that evidence of cost was required, and because Triad had no reason to believe that intent evidence would be insufficient, there should at least be a remand of the antitrust issue in the interest of justice. Tex.R.App.P. 180.

VIII.

Under the court’s ruling, not only do consumers lose their protection under the Act, but small entrepreneurs, who have traditionally provided so much vital innovation, are endangered. Not surprisingly, in virtually all predatory pricing cases, the plaintiff is a business significantly smaller than the defendant. Joel B. Dirlam, Marginal Cost Pricing Tests for Predation: Naive Welfare Economics and Public Policy, 26 Antitrust Bull. 769, 774 (1981). When a purely economic test for antitrust violations is put into effect, the “likely result will be an economy ... dominated by a few corporate giants.” Robert Pitofsky, The Political Content of Antitrust, 127 U.Pa.L.Rev. 1051, 1051 (1979). Contrary to the court’s position, the Texas Free Enterprise and Antitrust Act has a dual “purpose ... to maintain and promote economic competition ... and to provide the benefits of that competition to consumers....” Tex.Bus. & Commerce Code § 15.04 (emphasis added).58 Giving free rein to predators denies opportunities to both small businesses struggling to obtain a market share and- to consumers who benefit from the choice and pricing that genuine long-term competition brings.

The words of an economist, John Maynard Keynes, are an apt explanation of today’s otherwise incomprehensible decision:

Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist. [Those] in authority, who hear voices in the air, are *603distilling their frenzy from some academic scribbler of a few years back.

John Maynard Keynes, The General Theory of Employment Interest and Money 383 (1935). By disregarding the purposes underlying the Texas Free Enterprise and Antitrust Act and returning to the injustice of per se rules, the court has undermined a statute designed to protect consumers and to encourage independent businesses. Abandoning the rule of reason, the court paints a new landscape of corporate giants with the broad brush of economic theory. This preference for hollow theory over law takes the slingshot from David's hand and puts it firmly into Goliath’s.

MAUZY, J., joins in this dissent.

This dissent is to the original November 13, 1991 opinion which was withdrawn by the court on Motion for Rehearing February 26, 1992. For Justice Doggett’s dissent on Motion for Rehearing, see p. 603 infra.

.The quoted language is not hypothetical. As an instruction from management to a sales manager, it provided one basis for a determination of anticompetitive behavior in Kelco Disposal, Inc. v. Browning-Ferris Indus., 845 F.2d 404, 406, 408 (2d Cir.1988), aff’d, 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). Today's decision concludes that such highly relevant indications of predatory intent must be excluded.

. Robert H. Bork, Contrasts in Antitrust Theory: I, 65 Colum.L.Rev. 401 (1965) (hereinafter Bork, Contrasts in Antitrust).

. See Joseph F. Brodley & George A. Hay, Predatory Pricing: Competing Economic Theories and *590the Evolution of Legal Standards, 66 Cornell L.Rev. 738, 768 (1981) (hereinafter Brodley & Hay).

. The court’s insensitivity to the realities of independent business was most recently demonstrated in Crim Truck and Tractor Co. v. Navis-tar Inti Corp. 823 S.W.2d 591 (Tex.1991) (Mau-zy, J., dissenting).

. That amicus Texas Daily Newspaper Association endorses the result if not the reasoning of the court can in no way control the outcome. Publishers happy to be today’s victor may well find themselves tomorrow’s victim.

. Act of March 30, 1889, last codified at Tex. Bus. & Com.Code §§ 15.01-04 (amended by Act of 1983, 68th Leg., R.S. ch. 519, § 1, 1983 Tex. Gen.Laws 3010).

. See Jim Mattox, Attorney General, Updating Texas’Antitrust Laws: The Texas Free Enterprise Act and Antitrust Act of 1983 1 (1983) (hereinafter Updating)-, David J. Van Susteren, Comment, The Texas Free Enterprise and Antitrust Act — Analysis and Implications, 22 Hous.L.Rev. 1181, 1187 (1985) (hereinafter The Texas Antitrust Act). In contrast, the Sherman Antitrust Act, ch. 647, §§ 1-6, 8, 26 Stat. 209 (1890) (the current version is found at 15 U.S.C. §§ 1-7 (1976)), reached types of antitrust violations not covered in the strict Texas statute, provided a private right of recovery, and was conducive to broad construction. For all of these reasons, Texas litigants abandoned state law in favor of federal remedies for antitrust violations. See Steven Baron, A New Era in Texas Antitrust: The Texas Free Enterprise and Antitrust Act of 1983, 18 Texas Trial L.F. 16 (1983) (hereinafter Baron, A New Era); The Texas Antitrust Act at 1182.

. Tex.S.B. 262, 64th Leg., R.S. (1975); Tex.S.B. 400, 65th Leg., R.S. (1977); Tex.S.B. 165, 66th Leg., R.S. (1979); Tex.S.B. 397, 68th Leg., R.S. (1983) (authored by Doggett); and Tex.S.B. 975, 67th Leg., R.S. (1981) (authored by Farabee).

. See State Bar of Texas Antitrust Section, Monograph: Texas Free Enterprise and Antitrust Act 1 (1984) (hereinafter Monograph)-, Texas *591Antitrust Act: Hearing on Tex.S.B. 397 Before the Senate Jurisprudence Committee, 68th Leg., R.S. (February 22, 1983) (testimony of David Bragg, Texas Consumer Association, and Carol Barger, Consumer's Union), reprinted in Monograph, at 27 & 30; id. at 26 (testimony of Gene Fondren, representing the Texas Automobile Dealers Association).

. Id. at 26 (testimony of Gene Fondren).

. See Updating at 2; Monograph at 26; Texas Antitrust Act at 1195-96. After enactment of the new Act, “Texas courts must evaluate ... business activities under the Act for their actual competitive purpose and effects under the rule of reason.” Steven Baron, Increasing Importance of State Antitrust Enforcement: The Texas Free Enterprise and Antitrust Act, in State Bar of Texas Institute, Antitrust in the 80's C-4 (1985) (emphasis added) (hereinafter Baron).

. Updating at 2.

. Texas Antitrust Act: Hearing on Tex.S.B. 397 before the Senate Jurisprudence Committee, 68th Leg., R.S. (February 15, 1983) (testimony of Attorney General Jim Mattox), Monograph at 10. Texas commentators have concluded that an action for predation under the Texas act does involve consideration of intent. See Baron, A New Era, at 18; Selinger, Sherman Marches on Austin: Some Comments about the New Texas Act, 47 Tex.Bar J. 56, 60 (1984).

. The test is that of Professors Areeda and Turner. Phillip Areeda & Donald F. Turner, Predatory Pricing and Related Practices under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697, 699 (1975) (hereinafter Areeda & Turner).

. Although the court claims that its test is derived from numerous federal courts, at 587, its *592test is essentially identical to that set forth in Adjusters Replace-A-Car, Inc. v. Agency Rent-A-Car, Inc., 735 F.2d 884, 889-890 (5th Cir.1984), cert, denied, 469 U.S. 1160, 105 S.Ct. 910, 83 L.Ed.2d 924 (1985), with the exception that the Fifth Circuit does not bar intent evidence. Id. at 887, 890-91 & n. 5.

. This move goes even further than the recommendation of Caller-Times, which sought only our endorsement of the newspaper’s position under the Fifth Circuit approach, and which did not request a test rejecting all intent evidence. Instead, the court follows the alternative urged by amicus H.B. Zachry Company, which, ironically, accused the Court of Appeals of erring by adopting a test not suggested by the parties.

. See text accompanying note 13.

. The court thus lives up to Professor Lawrence Sullivan’s prediction that reliance on law and economics in the context of antitrust "may lead to an unduly limited conception of statutory purpose.” Lawrence A. Sullivan, Economics and More Humanistic Disciplines: What Are the Sources of Wisdom for Antitrust?, 125 U.Pa. L.Rev. 1214, 1218 (1977) (hereinafter Sources of Wisdom).

. Areeda & Turner at 700.

. There has been much debate over what is to be considered variable as opposed to fixed cost. See, e.g., Kelco Disposal, 845 F.2d at 407-08 (considering whether equipment depreciation is a fixed cost); Adjusters Replace-A-Car, 735 F.2d at 891 n. 6 (costs which are regarded as fixed in the short-run may become variable in the long-run); MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1111 n. 39 (7th Cir.1983); Marsann Co. v. Brammall, Inc., 788 F.2d 611, 613-16 (9th Cir.1986); see also Matsu-shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 n. 8, 106 S.Ct. 1348, 1355 n. 8, 89 L.Ed.2d 538 (1986); Martin S. Simkovic, Comment, Judicial Tests to Determine Predatory Pricing Before and After Matsushita, 44 Miami L.Rev. 839, 843 (1990) (hereinafter Judicial Tests'); Joel B. Dirlam, Marginal Cost Pricing Tests for Predation: Naive Welfare Economics and Public Policy, 26 Antitrust Bull. 769, 788 (1981) (hereinafter Dirlam). Average variable cost is also particularly difficult to calculate for new market entrants. See Peter C. Carstensen, Predatory Pricing in the Courts: Reflection on Two Decisions, 61 Notre Dame L.Rev. 928, 963 (1986) (hereinafter Carstensen).

. Charles P. Shimer, Note, Predatory Pricing: The Retreat from the A VC Rule and the Search for a Practical Alternative, 22 B.C.L.Rev. 467, 482 (1981) (hereinafter Retreat from the AVC Rule ).

. The court offers no explanation for its contradiction in permitting a jury to characterize costs as fixed or variable in a manner that may differ from case to case, at 587, while denying a jury the opportunity to analyze and characterize evidence of intent.

. In fact, average total cost includes a necessary minimum profit, see McGahee, 858 F.2d at 1503; because of this, it is unclear what the intended dividing line is in the majority’s test between “average variable cost" and "short-run profit-maximizing price.”

. The court’s lack of definition hides the fact that Bork and other law and economics enthusiasts consider there to be few if any actual barriers to entry. See Sources of Wisdom at 1215 (citing the Report of the White House Task Force on Antitrust Policy, separate statement of Robert H. Bork); see also Brodley & Hay at 770 (noting the difficulty of discerning existence of barriers to entry). The court does not make clear what circumstances will be included as barriers to entry. One reason advanced for the ineffectiveness of predatory behavior is that “the victim [of such pricing] would merely have to show the predator [that the victim has a] new line of credit to dissuade the predator from attacking," because more credit would indicate that the victim could lower prices to match those of the predator. Bork, The Antitrust Paradox at 148; see also Harry S. Gerla, The Psychology of Predatory Pricing: Why Predatory Pricing Pays, 39 Sw.L.J. 755, 767 (1985) (hereinafter Gerla) (generally regarding the assumed availability of credit, noting that underestimation of problems in raising capital flaws the theory that predatory pricing is ineffective). In today’s economy, scarred as it is by the savings and loan crisis, credit has become far more difficult to obtain than in the mid-1970’s when Bork wrote. Venture capital for entrepreneurs has been described as the “Berlin Wall” since "money is hardly ever there ... when a business is just starting." Jeremy Schlosberg, The Start-Up Blues, The Washington Monthly, Jan. 1989, at 25-27. Thus, lack of available credit arguably could serve as a barrier to entry.

.A further complication stemming from the lack of definition is that short-term profit maximization may be used as part of the test for finding high barriers to entry. See Brodley & Hay at 771.

. Carstensen at 946 (some economists argue that the "static” approach of classical economic price theory has little "relevance to antitrust concerns with the dynamics of [actual] con-duct_"); Michael C. Quinn, Note, Predatory Pricing Strategies: The Relevance of Intent under Antitrust, Unfair Competition, and Tort Law, 64 St. John's L.Rev. 607, 616 (1990); Dirlam at 799; Paul L. Jaskow & Alvin K. Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89 Yale L.J. 213, 222 (1979); see Oliver E. Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L.J. 284, 286-87 (1977) (hereinafter Williamson); Brodley & Hay at 756; Robert Pitofsky, The Political Content of Antitrust, 127 U.Pa.L.Rev. 1051, 1066 (1979) (hereinafter Pitofsky).

. Carstensen at 943; Scherer at 890.

. See Lawrence A. Sullivan, Antitrust § 43, at 110 (1977).

. Scherer at 869 (Areeda and Turner fail to consider the effects of varying the quantity of supply).

. Id. at 882-83.

. See Dirlam at 791-92.

. Dirlam at 805; Retreat from the A VC Rule at 484.

. Retreat from the A VC Rule at 483.

. See Richard A. Posner, Antitrust Law: An Economic Perspective 191-93 (1976); Douglas F. Greer, A Critique of Areeda and Turner’s Standard for Predatory Practices, 24 Antitrust Bull. 233 (1979).

.See supra note 3.

. See Retreat from the A VC Rule at 482.

. Only two federal courts have ever barred all intent evidence. Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227 (1st Cir.1983); A.A. Poultry Farms, Inc. v. Acre Farms, Inc., 881 F.2d 1396, 1402 (7th Cir.1989), cert, denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). Even after Barry Wright Corp., "most [courts] have expressed some reservations about supplanting entirely the intent-based test, and none have adopted a per se cost based test." Adjusters Replace-A-Car, 735 F.2d at 890 n. 5; see also Judicial Tests at 844-874. The Fifth Circuit, contrary to the court’s assertion, specifically recognizes the admissibility of intent evidence. Adjusters Replace-A-Car, 735 F.2d at 887; see also International Air Indus., Inc. v. American Excelsior Co., 517 F.2d 714, 724 n. 30, 726-27 & n. 36 (5th Cir.1975), cert, denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976). Likewise, the Second Circuit does not explicitly bar such evidence. Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76 (2d Cir.1981), cert, denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982); Kelco Disposal, 845 F.2d at 406 (allowing into evidence memoranda illustrative of intent); see Robert R. Vawter, Jr. & Sharyn B. Zuch, A Critical Analysis of Recent Federal Appellate Decisions on Predatory Pricing, 51 Antitrust L.J. 401, 410 (1983) (Northeastern did not conclude that pricing presumptions are conclusive, and it is unclear what evidence is allowable to rebut such presumptions). Finally, the Eighth Circuit case cited by the court explicitly allows for intent evidence; it simply requires more than intent evidence alone. Morgan v. Ponder, 892 F.2d 1355, 1359 (8th Cir.1989); see also Henry v. Chloride, Inc., 809 F.2d 1334, 1341 (8th Cir.1987).

. These five circuits, in addition to the Second, Fifth and Eighth Circuits, see supra, note 37, are; the Third, O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 347 (3d Cir.1981), cert, denied, 455 U.S. 1017, 102 S.Ct. 1711, 72 L.Ed.2d 134 (1982); the Sixth, D.E. Rogers Assoc., Inc. v. Gardner-Denver Co., 718 F.2d 1431, 1436-37 (6th Cir. 1983), cert, denied, 467 U.S. 1242, 104 S.Ct. 3513, 82 L.Ed.2d 822 (1984); the Ninth, William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., Inc., 668 F.2d 1014, 1033-38 (9th Cir.1981), cert, denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 61 (1982); Transamerica Computer Co. v. IBM Corp., 698 F.2d 1377, 1388-89 (9th Cir.), cert, denied, 464 U.S. 955, 104 S.Ct. 370, 78 L.Bd.2d 329 (1983) (allowing for all intent evidence to be introduced regardless of costs, but shifting the burden of proof); the Tenth, Instructional Sys. Dev. Corp. v. Aetna Cas. & Sur. Co., 817 F.2d 639, 648-49 (10th Cir.1987) (allowing in all intent evidence regardless of costs); and the Eleventh, McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1503 (11th Cir.1988), cert, denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989).

. 475 U.S. at 584 n. 8, 106 S.Ct. at 1355 n. 8; see Marsann Co., 788 F.2d at 613 n. 1 & 615 n. 3 (Matsushita does not apply to section 2 actions).

. See McGahee, 858 F.2d at 1496; Adjusters Replace-A-Car, 735 F.2d at 887. The somewhat confusing holding in Matsushita cannot be read as simply as this court urges. Matsushita is highly fact specific: the alleged conspiracy had lasted over twenty years with no success. Mat-sushita, 475 U.S. at 578, 106 S.Ct. at 1351. Additionally, this ruling may apply only to multi-product firms similar to the Matsushita company itself, for such firms can more easily shift burdens of cost and production from one product to another. This, in turn, affects the ability to apply accurately a cost-based test. Finally, the Supreme Court was concerned only with the context of summary judgment, which is not at issue in the current case. Id. at 577, 106 S.Ct. at 1351.

. Describing antitrust as "a subcategory of ideology," Bork, The Antitrust Paradox, at 408, or even a “secular religion,” Bork, Contrasts in Antitrust Theory, at 401, Bork has established himself firmly as an antitrust atheist. This attitude conflicts sharply with the reasoning underlying the federal statutes that “[ajntitrust is a distinctive American means for assuring the competitive economy on which our political and social freedom under representative government in part depend.” The Report of the Attorney General's National Commission to Study the Antitrust Laws, quoted in S. Chesterfield Oppen-heim & Glen E. Weston, Federal Antitrust Laws 4 (1968) (hereinafter Oppenheim & Weston).

. Holmes’ dissent in Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679 (1904) is described as "a curiously inconsistent piece of work” in which Holmes’ view of the Sherman Act "deprives it of any general policy goal and, almost, of any intelligible reason for existence.” Bork, The Antitrust Paradox, at 31. Bork characterizes Holmes’ interpretation of the statute, which attempted to apply common law, 193 U.S. at 197, 24 S.Ct. at 436, as having “lapsed into an oblivion that seems deserved,” and notes its only worth as having included some economic reasoning. R. Bork, The Antitrust Paradox, at 32. Holmes was actually one of the first jurists to focus on intent in antitrust cases. See Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905).

. Brandéis’ approach to antitrust law is attacked for his “sympathy for small, perhaps inefficient, traders....” Bork, The Antitrust Paradox, at 41. Brandéis is also criticized for not laying out what a formalistic per se violation of the antitrust laws is, preferring instead an intent-based or rule of reason approach. Id. at 43-44. See Board of Trade of Chicago, 246 U.S. at 238, 38 S.Ct. at 243 (“Knowledge of intent may help the court to interpret facts and to predict consequences.”). Most remarkably, Bork characterizes Brandéis as having "brought to prominence the idea that judges in antitrust cases could forward values opposed to consumer welfare.” Bork, The Antitrust Paradox, at 21-22.

. Taft’s opinion in United States v. Addyston Pipe & Steel Co., 85 Fed. 271 (6th Cir.1898), is argued to be preferable to the humanistic approach of Holmes and Brandéis because it attempts to establish per se rules for illegality. See R. Bork, The Antitrust Paradox, at 27. Taft’s “insight” that combinations might be efficient economically is, to Bork, "central to modern antitrust.” Id. at 28. At least one commentary has concluded to the contrary that Taft’s opinion is utterly out of place in the modern business world. See Oppenheim & Weston at 4.

. Ironically, courts are moving towards law and economics just as, at the same time, econo*598mists are moving away from the simplified assumptions of classical microeconomic theory. See Gerla at 779 & n. 124.

.These commentators have agreed on the existence of predatory pricing, and have persuasively challenged the premise that it cannot rationally and successfully be employed. Sullivan, Antitrust § 43, at 110. See Yamey at 130 & 135; Scherer at 883, 889 & generally; F.M. Scherer, Industrial Market Structure and Economic Performance 335-40 (2d ed. 1980); Dirlam at 792; Williamson at 286-87; Brodley & Hay at 789; see generally Gerla. Even law and economics guru Richard Posner rejects the premise that, from an economist’s standpoint, predatory pricing can never successfully occur. Posner at 515-518.

. For a detailed discussion of the legislative history on predatory pricing, see McGahee, 858 F.2d at 1498-1500.

. “Homo económicas" is a term coined to describe the implausible efficiency and wealth-maximizing creature imagined by classical economists. L. Thurow, Dangerous Currents 224 (1983).

. The court’s approach is apparent in the very terms of its test. The existence of a "short-term profit-maximizing price” rests purely on a "hypothesis" that firms, in everything they do, aim to maximize profits. The MIT Dictionary of Modem Economics (David W. Pearce ed., 2d. ed. 1986).

. See, e.g., National Committee for the Review of Antitrust Laws, Report to the President and the Attorney General 150 (1979), cited in Gerla at 774 n. 99; Sullivan, Antitrust § 43, at 111; Dirlam at 813-14; Sources of Wisdom at 1232.

. Although claiming to have "neither rejected[ed] nor embracefd] the rule of reason ...,” at 582, the court’s prohibition of intent evidence represents a clear rejection of that Rule, which by definition does not categorically exclude an entire class of evidence.

. While reluctantly acknowledging the potential relevance of some of these factors to whether the seller has an “objectively reasonable expectation of recouping its losses," at 582, the court offers neither guidance as to their application nor explanation of why some factors, but not others, may be “objective.”

. The four Justices dissenting in Matsushita criticized the majority's economic-oriented approach as making "a number of assumptions that invade the factfinder’s province,” Matsushi-ta, 475 Ü.S. at 599, 106 S.Ct. at 1362 (White, J., dissenting), and that take matters from the hands of a jury. Id. at 603-04 & n. 4, 106 S.Ct. at 1365 & n. 4. That admonition is equally applicable here: the court "is not required to engage in academic discussions about predation; it is required to decide whether respondent's evidence creates a genuine issue of material fact.” Id at 606, 106 S.Ct. at 1366. Accord, Kelco Disposal, 845 F.2d at 408.

.One commentator notes that in relation to a pure cost test, the fact that "accounting records [are] in the hands of defendants” results in "inevitable slippage of the discovery process_” Pitofsky at 1066.

. Similarly, a new market entrant may price below short run cost and absorb losses as a way of acquiring a share of an existing market. See Carstensen at 960. Nevertheless, this court would bar such competitive behavior.

. Indeed, Areeda and Turner have conceded that their theories of efficiency work when applied to monopolies unless the monopolistic firm “can discriminate in price among different customers." 2 Phillip Areeda & Donald F. Turner, Antitrust Law § 403b, at 271 (1978).

. The court entirely disregards statements of a Caller-Times employee relating to this subject. By not explaining how this evidence failed to constitute a showing of cost and profit, this court not only establishes an unworkable test, it offers no guidance on what evidence beyond testimony on cost and price need be introduced to meet that test.

.See also Baron at C-27; The Texas Antitrust Act at 1220; Jim Mattox, Attorney General, Antitrust Enforcement in Texas: A Citizen's Guide 1 (1983).