United States v. Pabst Brewing Co., 384 U.S. 546 (1966)

MR. JUSTICE DOUGLAS, concurring.

While I join the Court’s opinion, I add only a word in support of the Court’s description of the anatomy of the "relevant geographic market" for purposes of the Clayton Act. The alternative leads to a form of concentration whose ultimate reductio ad absurdum is described in the GO>Appendix to this opinion.

APPENDIX TO CONCURRING OPINION OF MR. JUSTICE DOUGLAS.

Every time you pick up the newspaper, you read about one company merging with another company. Of course, we have laws to protect competition in the United States, but one can’t help thinking that, if the trend continues, the whole country will soon be merged into one large company.

It is 1978, and, by this time, every company west of the Mississippi will have merged into one giant corporation known as Samson Securities. Every company east of the Mississippi will have merged under an umbrella corporation known as the Delilah Company.

It is inevitable that one day the chairman of the board of Samson and the president of Delilah would meet and discuss merging their two companies.

"If we could get together," the president of Delilah said, "we would be able to finance your projects and you would be able to finance ours."

"Exactly what I was thinking," the chairman of Samson said.

"That’s a great idea and it certainly makes everyone’s life less complicated."

The men shook on it, and then they sought out approval from the Anti-Trust Division of the Justice Department.

At first, the head of the Anti-Trust Division indicated that he might have reservations about allowing the only two companies left in the United States to merge.

"Our department," he said,

will take a close look at this proposed merger. It is our job to further competition in private business and industry, and if we allow Samson and Delilah to merge we may be doing the consumer a disservice.

The chairman of Samson protested vigorously that merging with Delilah would not stifle competition, but would help it. "The public will be the true beneficiary of this merger," he said. "The larger we are, the more services we can perform, and the lower prices we can charge."

The president of Delilah backed him up.

In the Communist system, the people don’t have a choice. They must buy from the state. In our capitalistic society, the people can buy from either the Samson Company or the Delilah Company.

"But if you merge," someone pointed out, "there will be only one company left in the United States."

"Exactly," said the president of Delilah. "Thank God for the free enterprise system."

The Anti-Trust Division of the Justice Department studied the merger for months. Finally the Attorney General made this ruling.

While we find some drawbacks to only one company’s being left in the United States, we feel the advantages to the public far outweigh the disadvantages.

Therefore, we’re making an exception in this case and allowing Samson and Delilah to merge.

I would like to announce that the Samson and Delilah Company is now negotiating at the White House with the President to buy the United States. The Justice Department will naturally study this merger to see if it violates any of our strong antitrust laws.

Art Buchwald, Washington Post, June 2, 1966, p. A21.

1. See in addition my concurring opinion in Brown, 370 U.S. at 368-369.

2. See, e.g., Bock, Mergers and Markets 35-42 (1960); Kaysen & Turner, Antitrust Policy 101-102 (1959); Martin, Mergers and the Clayton Act 321-322 (1959).

3. The evidence in the record supporting the Government’s contention that the three-state area is a relevant geographic market in which to measure the effects of this acquisition is not significantly different from that supporting the Wisconsin market. For simplicity, this opinion will therefore discuss these criteria only in terms of the Wisconsin market.

4. Only one-third of the Nation’s beer producers sold beer in the Wisconsin market.