Well, since it's out of print, they are going to have to (re)release something eventually and I hope they at least make it anamorphic --- even if there are no extras.
Would Criterion seriously consider biting the hand that feeds them? Keep in mind that Criterion relies on the studios to sell them the rights to those films that Criterion wants to release on video. If they do something to sour that relationship then future access to the studio's film vault would be in jeopardy.
Regardless, unlike some high profile directors, Scorsese is a huge supporter of home theater and not only enjoys recording commentaries; he also enjoys gathering material for supplements. If they do not use the old commentary track from Criterion, I would not be the least bit surprised if Scorsese records a new one. In fact insiders say that it is Scorsese's desire to make the SE truly special that is the reason for all the delays. His schedule the last couple years, after all, has been extremely full thanks to 'Gangs of New York' and its DVD production. And now he is tied up in post-production work on 'The Aviator'. After that he should be able to concentrate on this and other SE DVD releases.
I'm still holding out for the much rumored SE. I've had the current version in my hands a few times now, but can't bring myself to shell out for it. Waiting can pay off (Blackhawk Down, Panic Room) so I'll keep holding off.
Seeing how MGM has already revisted numerouse titles and gave them the SE treatment they deserved in the first place, I would think this is a sure bet, it is often listed as the best film of the Eighties.
I cannot think of any MGM/UA films that have been licensed to Criterion for DVD, so Criterion own them nothing.
Apart from Life Of Brian (Columbia) and Halloween (Anchor Bay), Criterion haven't licenced out any extra features, as far as I know. Columbia didn't get the commentary for Taxi Driver - if they even asked for it - MGM might not even ask for the commentary for Raging Bull. I'd love to see MGM get it, though.
Next year is the film's 25 anniversary, Scorsese's finishing up The Aviator and Warner just announced their box set... it's due time for MGM time release a special edition.
Are people sure it's a "new" commentary by Scorsese and Schoonmaker? The listings at DVD Times just states "Audio commentary by Director Martin Scorsese and Editor Thelma Schoonmaker", which sounds very likely to be the Criterion track (which I would be thrilled by).