Ricci v. Chicago Mercantile Exchange/Concurrence Burger
[p308] MR. CHIEF JUSTICE BURGER, concurring.
As I read the Court's opinion, it plainly disclaims any resolution of the issue left open in Silver v. New York Stock Exchange, 373 U.S. 341 (1963)—namely, the question of which "particular instances of exchange self-regulation" occurring within a statutory scheme providing for self-regulation may be regarded as "justified in answer to the assertion of an antitrust claim" against the Exchange and its members. Indeed, the Silver problem is not before us. The Court of Appeals was careful to note that it expressed "no opinion on any antitrust immunity that might result from action or inaction taken by the Commission or the Secretary of Agriculture in this case." 447 F.2d 713, 720 n. 18.
The Court holds that the Commodity Exchange Commission may materially aid in proper consideration of petitioner's antitrust claims by determining whether respondents violated a rule of the Exchange. The Court's opinion should not be read to suggest that the Commission's resolution of the dispute either will or will not foreclose subsequent application of the antitrust laws.
With this understanding, I join the Court's opinion.