United States v. Continental Can Company/Concurrence Goldberg

by Arthur Goldberg

Mr. Justice GOLDBERG, concurring.

I fully agree with the Court that '(s)ince the purpose of delineating a line of commerce is to provide an adequate basis for measuring the effects of a given acquisition, its contours must, as nearly as possible, conform to competitive reality.' Ante, at p. 457. I also agree that 'on the evidence thus far revealed by this record,' there has been a prima facie showing 'that the interindustry competition between glass and metal containers * * * (warrants) treating as a relevant product market the combined glass and metal container industries and all end uses for which they compete.' Ibid. I wish to make it clear, however, that, as I read the opinion of the Court, the Court does not purport finally to decide the determinative line of commerce. Since the District Court 'dismissed the complaint at the close of the Government's case,' ante, at p. 444, upon remand it will be open to the defendants not only to rebut the prima facie inference that metal and glass containers may be considered together as a line of commerce but also to prove that plastic or other containers in fact compete with metal and glass to such an extent that as a matter of 'competitive reality' they must be considered as part of the determinative line of commerce.