At last we are getting from the Justice Department something we have not been getting from the Transportation Department: some healthy skepticism about the wisdom of granting antitrust immunity, willy-nilly, to every airline partnership that comes down the pike.
For those who have not been following the Alliance Follies, here's the situation: Key members of the SkyTeam alliance, including Delta and Air France/KLM, have antitrust immunity to agree on prices, pool their capacity and revenue and coordinate their marketing activities.
Key members of the Star Alliance, including United, Air Canada and Lufthansa, have a measure of immunity and want more, and they would like it to cover their newest member, Continental. The DOT, in a show-cause order issued in April, said it was prepared to do so, subject to an exchange of public comments.
The Oneworld alliance, whose top members include American, British Airways and Iberia, don't have immunity, though they have applied for it and are awaiting a DOT show-cause order of their own.
All that seems fair enough, but the Justice Department's antitrust division has other ideas. In a belated comment relating to the Star Alliance case, the Justice Department's antitrust division said it doesn't believe the Star carriers have met their burden of proof and, in fact, have exaggerated the benefits of antitrust immunity.
Moreover, the Justice Department lawyers reminded the DOT lawyers that, under the governing legal standard, it's not enough for the airlines to assert that immunity would be "good." They have to show that it is "necessary."
We couldn't have said it better.