One consequence is that today, it is almost impossible to bring a discounting case, even if it has exclusionary consequences. It is presumed by the courts that discounting benefits consumers. The only form of discounting that is now viewed by the courts as proof of predatory behavior is pricing below cost. When I spoke to Robert E. Cooper, a lawyer at Gibson, Dunn & Crutcher, who is representing Intel, he cited a series of Supreme Court cases, going back 20 years, that has come down in favor of discounting — even enormous discounts based on market share, which have the effect of excluding rivals. Intel insists that it doesn’t price below cost, and given the nature of these things — selling in huge volume brings Intel’s own costs down, thanks to economies of scale — it will be almost impossible to prove otherwise.