United States v. Pabst Brewing Company/Concurrence Fortas

by Abe Fortas

United States Supreme Court

384 U.S. 546

United States  v.  Pabst Brewing Company

 Argued: April 27, 1966. --- Decided: June 13, 1966

Mr. Justice FORTAS, concurring in the result.

The District Court clearly erred in dismissing the complaint. There is ample proof that the effect of this acquisition may be substantially to lessen competition in the production and sale of beer in well-defined sections of the country. But I cannot join the Court's opinion because contrary to the statements in that opinion, I believe that, in § 7 cases, it is the Government's duty, as plaintiff, to prove the 'market' or the 'section of the country' in which the claimed effect of the acquisition is manifest. This is an important, even essential, element of the judgment which must be made in a § 7 case. This Court has consistently recognized this. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502; United States v. Philadelphia Nat. Bank, 374 U.S. 321, 355-362, 83 S.Ct. 1715, 1739. It is true that the search for the relevant market is frequently complicated and elaborated beyond reason or need-sometimes for purposes of delay or obstruction. But the search is nevertheless essential. It is not a snipe hunt.

In some situations, arithmetic as to the merging companies' aggregate volume of sales of the commodity involved may be impressive. Sometimes, the resulting size of the conjoined companies is great. But unless it can be shown that the effect may be 'substantially to lessen competition, or to tend to create a monopoly' in a specific section of the country, courts are not authorized to condemn the acquisition. Congress has been specific in at least this respect, and I cannot agree that this standard should be denigrated. Unless both the product and the geographical market are carefully defined, neither analysis nor result in antitrust is likely to be of acceptable quality. Compare majority and dissenting opinions in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (involving §§ 1 and 2 of the Sherman Act).

Notes