philadelphia nat bank argued decided june appellees national bank state bank second third largest commercial banks metropolitan area consisting philadelphia three contiguous counties branches throughout area appellees boards directors approved agreement consolidation national bank stockholders retain stock certificates represent shares consolidated bank state bank stockholders surrender shares exchange shares consolidated bank obtaining reports required bank merger act board governors federal reserve system federal deposit insurance corporation attorney general advised proposed merger substantially lessen competition area comptroller currency approved sued enjoin consummation proposed consolidation ground inter alia violate clayton act held proposed consolidation appellee banks forbidden clayton act must enjoined pp amendments clayton act enacted congress intended close loophole original section broadening scope cover entire range corporate amalgamations pure stock acquisitions pure acquisitions assets intend exclude bank mergers pp bank merger act directing banking agencies consider competitive factors approving mergers immunize mergers approved operation federal antitrust laws doctrine primary jurisdiction applicable california federal power commission pp proposed consolidation appellee banks violate clayton act must enjoined pp line commerce involved commercial banking pp section country relevant metropolitan area consisting philadelphia three contiguous counties pp consolidated bank control undue percentage share relevant market least consolidation result significant increase concentration commercial banking facilities area result inherently likely lessen competition substantially evidence record show pp facts commercial banking subject high degree governmental regulation deals intangibles credit services rather manufacture sale tangible commodities immunize anticompetitive effects undue concentration pp proposed consolidation justified theory mergers banks follow customers suburbs retain business since accomplished establishing new branches suburbs proposed consolidation justified ground increased lending limit enable consolidated bank compete large banks particularly new york banks large loans pp proposed consolidation justified ground philadelphia needs bank larger order bring business area stimulate economic development rejects appellees pervasive suggestion application procompetitive policy banking industry dire although unspecified consequences national economy pp assistant attorney general loevinger argued cause briefs solicitor general cox charles weston george reycraft lionel kestenbaum melvin spaeth philip price arthur littleton argued cause appellees brief ernest von starck donald scott carroll wetzel john brennan minturn wright iii justice brennan delivered opinion appellant brought civil action district eastern district pennsylvania sherman act clayton act enjoin proposed merger philadelphia national bank pnb girard trust corn exchange bank girard appellees complaint charged violations sherman act clayton act judgment appellees trial see supp appealed expediting act probable jurisdiction noted reverse judgment district hold merger appellees forbidden clayton act must enjoined need therefore reach question alleged violation sherman act facts proceedings background commercial banking commercial banking country primarily unit banking control commercial banking diffused throughout large number independent local banks rather concentrated handful nationwide banks example england germany sure addition independent banks branch banks branching controlled largely state law prohibited altogether enables bank extend state lines often far also case course many banks place loans solicit deposits outside home area qualifications remains true essentially decentralized system community banks recent years however witnessed definite trend toward concentration thus decade ending number commercial banks declined despite chartering new banks substantial increase nation credit needs period independent banks thus disappeared combined total resources well disappeared result mergers commercial banks unique among financial institutions alone permitted law accept demand deposits distinctive power gives commercial banking key role national economy banks merely deal actually source money credit bank makes loan crediting borrower demand deposit account augments nation credit supply furthermore power accept demand deposits makes banks intermediaries financial transactions since transfers substantial moneys almost always check rather cash concomitantly repositories substantial individual corporate funds banks use funds conditioned fact working capital consists largely demand deposits makes liquidity guiding principle bank lending investing policies thus banks chief source country business credit banking operations varied complex commercial banking describes congeries services credit devices among creation additional money credit management system furnishing business loans appear important proper discharge functions indispensable healthy national economy role bank failures depression periods attests therefore surprising commercial banking subject variety governmental controls state federal federal regulation extensive focus upon extends national banks banks chartered federal law supervised comptroller currency see et seq many state banks see well virtually national banks members federal reserve system frs banks see insured federal deposit insurance corporation fdic state member nonmember insured banks subject federal regulatory scheme almost elaborate governs national banks governmental controls american banking manifold first federal reserve system operations see control rediscount rate see modifications reserve requirements see regulates supply money credit economy thereby indirectly regulates interest rates bank loans however rate regulation reserve system activities designed influence prime minimum bank interest rate federal control maximum although banks state national subject state usury laws applicable see range maximum fixed state usury laws practical minimum set federal fiscal policies law undercutting prime rate bankers seldom bankers free price loans choose moreover charges banking services service charges checking privileges free governmental regulation state federal entry branching acquisitions covered network state federal statutes charter new bank state national granted unless invested capital management applicant prospects sufficient business operate reasonable profit give adequate protection undue competition possible failure see cfr stat tit failure meet standards may cause fdic refuse application insurance may cause fdic federal reserve board frb comptroller refuse permission branch insured member national banks respectively permission merge consolidate acquire assets assume liabilities may refused agencies grounds supp iv note infra furthermore national banks appear subject state geographical limitations branching see banks also subject number specific provisions aimed ensuring sound banking practices example member banks federal reserve system may pay interest demand deposits may invest common stocks hold account investment securities one obligor excess bank unimpaired capital surplus see seventh may pay interest time savings deposits rate fixed frb payment interest deposits nonmember insured banks also federally regulated supp iv cfr part case national banks limit obligations single obligor includes loans well investment securities see pennsylvania imposes limitation upon banks chartered laws girard stat ann supp tit perhaps effective weapon federal regulation banking broad visitatorial power federal bank examiners whenever agencies deem necessary may order thorough examination affairs bank whether member frs nonmember insured bank cfr examinations frequent intensive addition banks required furnish detailed periodic reports operations supervisory agencies way agencies maintain virtually surveillance american banking system discover unsound banking practices equipped formidable array sanctions judgment frb member bank making undue use bank credit board may suspend bank use credit facilities frs fdic even formidable power finds unsafe unsound practices conduct business insured bank may terminate bank insured status involuntary termination severs bank membership frs state bank throws receivership national bank lesser nevertheless drastic sanctions include publication results bank examinations result existence panoply sanctions recommendations agencies concerning banking practices tend followed bankers without necessity formal compliance proceedings davis administrative law federal supervision banking called robably outstanding example federal government regulation entire industry methods supervision system may one successful systems economic regulation successful efficacy system may owe part virtual disappearance bank failures american economic scene proposed merger pnb girard present size pnb girard part result mergers indeed trend toward concentration noticeable philadelphia area generally number commercial banks declined present since pnb acquired nine formerly independent banks girard six acquisitions accounted respective banks asset growth period deposit growth loan growth period seven largest banks area increased combined share area total commercial bank resources november boards directors two banks approved proposed agreement consolidation pnb charter terms agreement pnb stockholders retain share certificates deemed represent equal number shares consolidated bank girard stockholders surrender shares exchange shares consolidated bank receiving shares girard share consolidation authorized subject approval comptroller currency supp iv bank merger act supp iv comptroller may give approval received reports two banking agencies attorney general respecting probable effects proposed transaction competition three reports advised proposed merger substantial anticompetitive effects philadelphia metropolitan area however february comptroller approved merger opinion rendered time required comptroller explained basis decision approve merger statement included annual report congress effect upon competition reasoned ince remain adequate number alternative sources banking service philadelphia view beneficial effects consolidation upon international national competition concluded effect upon competition unfavorable also stated consolidated bank far better able serve convenience needs community material assistance city state efforts attract new industry retain existing industry day comptroller approved merger commenced present action steps taken consummate merger pending outcome litigation trial district decision government case district relied chiefly statistical evidence bearing upon market structure testimony economists bankers effect notwithstanding intensive governmental regulation banking substantial area free play competitive forces concentration commercial banking proposed merger increase inimical free play principal anticompetitive effect merger felt area banks offices thus making metropolitan area relevant geographical market commercial banking relevant product market defendants addition offering contrary evidence points attempted show business justifications merger conceded banks economically strong sound management offered testimony bankers show resulting bank greater prestige increased lending limit better able compete large particularly new york banks attract new business philadelphia general promote economic development metropolitan area upon record district held passage bank merger act repeal implication antitrust laws insofar may apply bank mergers clayton act inapplicable bank mergers banks corporations subject jurisdiction federal trade commission assuming applicable philadelphia metropolitan area relevant geographical market pnb girard actively compete banks bank business throughout greater part northeastern even assuming applicable area relevant market reasonable probability competition among commercial banks area substantially lessened result merger since merger violate clayton act fortiori violate sherman act merger benefit philadelphia metropolitan area economically district also ruled purposes commercial banking line commerce appellees contest ruling ii applicability section clayton act bank mergers terms present reaches acquisitions corporate stock share capital corporation engaged commerce reaches acquisitions corporate assets corporations subject jurisdiction federal trade commission ftc federal trade commission act jurisdiction banks therefore proposed merger deemed assets acquisition within appellant argues vigorously merger crucially different pure assets acquisition appellees argue equal vigor crucially different pure stock acquisition positions think merit merger fits neither category neatly since literal terms thus dispose question must determine whether congressional design embrace bank mergers revealed history statute question appears one first impression directed previous case merger consolidation challenged clayton act amended acquiring corporation subject ftc jurisdiction first enacted referred corporate acquisitions stock share capital silent assets acquisitions mergers consolidations act october stat note infra true omission may oversight congress principal concern activities holding companies specifically practice whereby corporations secretly acquired control competitors purchasing stock companies although assets acquisitions mergers known forms corporate amalgamation time less dangerously anticompetitive effects may fully apparent congress still statutory language read light overriding congressional purpose control corporate concentrations tending monopoly lent construction whereby reached least mergers consolidations hardly done violence language interpreted vague term share capital see geo rev adopted view assets exchanged stock purchasing company assuming two companies previously competition apparent seller acquired stock competing company therefore effecting merger section violated hence distribution stock received selling company shareholders subsequent dissolution bar proceedings government set aside purchase handler industrial mergers laws rev courts found mergers beyond reach even merger technique supplanted stock acquisitions prevalent mode corporate amalgamation celanese america supp see thatcher mfg federal trade swift federal trade decided together federal trade western meat hegeman elec federal trade result became largely dead letter comment yale see federal trade commission merger movement summary report henderson federal trade commission meanwhile decision columbia steel stirred concern whether sherman act alone check corporate acquisitions note rev background congress amended include provision act december antimerger act stat legislative history silent specific questions amendment made explicit reference mergers assets acquisitions corporations subject ftc jurisdiction included omissions signify nevertheless basic congressional design clearly emerges design answers questions may inferred congress primarily sought bring mergers within thereby close regarded loophole section addition sought reach transactions involved columbia steel simple purchase assets merger words congress contemplated amendment give reach bring entire range corporate amalgamations pure stock acquisitions pure assets acquisitions within scope thus provisions read together reach mergers fit neither category perfectly lie somewhere two ends spectrum see pp notes supra construed specific exception acquiring corporations subject ftc jurisdiction excludes coverage assets acquisitions corporations accomplished merger construction supported number specific considerations first construction illogical disrespectful plain congressional purpose amending create large loophole statute designed close loophole unquestioned provision embraces every corporation engaged commerce including banks plain congress amending considered distinction antitrust purposes acquisition corporate control purchase stock acquisition merger unsupportable reason sought overrule decisions recognized distinction therefore mergers industries outside ftc jurisdiction deemed beyond reach result precisely difference treatment congress rejected hand excluding section assets acquisitions merger industries appear create lacuna practical importance second congress debated bill amend fully aware important differences merger pure purchase assets example senator kilgore remarked talk mergers talking stock transaction ctually merge stockholdings corporations instead thinking practical terms merge corporate entities two corporations get one corporation issue stock one corporation lieu stock corporation whereupon stock corporation merged canceled new corporation one corporation handling operation two really stock transaction final regardless call call purchase assets purchase physical assets things upon lay hand either records ground hearings subcommittee senate committee judiciary corporate mergers acquisitions sess effect see third legislative history shows objective including phrase corporation subject jurisdiction federal trade commission limit amalgamations covered amended statute make explicit role ftc administering section predominant focus hearings debates committee reports upon powers ftc decisions uncovered loophole original thatcher swift rested directly upon substantive coverage rather upon limited scope ftc divestiture powers see note supra intimations courts power enforce might far greater see thatcher mfg federal trade supra swift federal trade supra federal trade eastman kodak hegeman elec federal trade supra irvine uncertainties section clayton act cornell thus loophole sometimes viewed primarily gap ftc jurisdiction furthermore although clayton act always provided dual enforcement agency see grant alkali export assn prior amendment enforcement left largely ftc martin mergers clayton act montague celler act administrative problem economic crisis impetus amend came large part ftc see martin supra federal trade commission annual reports pp pp pp merger movement summary report congress clearly intended remove question concerning ftc remedial power corporate acquisitions therefore explicitly enlarged ftc jurisdiction congress choice means underscoring ftc role enforcing provides basis construction undercut dominant congressional purpose eliminating difference treatment accorded stock acquisitions mergers original construed fourth settled law mmunity antitrust laws lightly implied california federal power cf borden southern pac canon construction reflects felt indispensable role antitrust policy maintenance free economy controlling indication legislative history amendment congress wished confer special dispensation upon banking industry congress wished moreover surely exempted industry well provision course construction amended foreclosed passage amendment members congress time justice department voiced view bank mergers still beyond reach section views subsequent congress form hazardous basis inferring intent earlier one price see rainwater mine workers cf du pont de nemours holds true even though misunderstanding scope may played part passage bank merger act question shall shortly turn whether exists inconsistency bank merger act construe require holding must deemed repealed pro tanto different question whether misunderstanding scope relevant task defining scope congress gave section congress enacted bank merger act applicability bank mergers still authoritatively determined subject speculation thus case earlier decisions part arch new structure rests must refrain disturbing lest change design congress fashioned state board ins todd shipyards cf note supra design fashioned bank merger act predicated upon uncertainty scope violence design dispelling uncertainty effect bank merger act appellees contended bank merger act directing banking agencies consider competitive factors approving mergers supp iv note supra immunizes approved mergers challenge federal antitrust laws think district correct rejecting contention express immunity conferred act repeals antitrust laws implication regulatory statute strongly disfavored found cases plain repugnancy antitrust regulatory provisions two recent cases pan american world airways california federal power illustrate principle pan american held civil aeronautics board given broad powers enforce competitive standard clearly delineated civil aeronautics act immunize variety transactions operation antitrust laws sherman act applied facts composing precise ingredients case subject board broad regulatory remedial powers contrast banking agencies authority neither enforce antitrust laws mergers cf note supra grant immunity laws california case hand held fpc approval merger confer immunity clayton act even though instant case agency taken competitive factor account passing upon merger application see think california controlling although comptroller required consider effect upon competition passing upon appellees merger application required give factor particular weight even required hold hearing approving application specific provision judicial review decision plainly range scope administrative powers bank merger act bear little resemblance involved pan american congress passing bank merger act embrace view federal regulation banking comprehensive enforcement antitrust laws either unnecessary light completeness regulatory structure disruptive structure contrary legislative history act seems clearly refute suggestion applicability antitrust laws affected house senate committee reports stated act affect way applicability antitrust laws bank acquisitions sess sess see also cong rec remarks senator robertson act sponsor moreover bank regulation respects less complete public utility regulation interstate rail air carriers among others subject rate regulation banking industry limited largely indirect see supra banks duty discriminate services though location bank offices regulated banks may business place loans solicit deposits please fact banking agencies maintain close surveillance industry view toward preventing unsound practices might impair liquidity lead insolvency make federal banking regulation although minimize hazards intense competition indeed many direct public controls unsound competitive practices industry refutes argument private controls competition necessary public interest therefore immune scrutiny antitrust laws cf kaysen turner antitrust policy note finally doctrine primary jurisdiction applicable doctrine requires judicial abstention cases protection integrity regulatory scheme dictates preliminary resort agency administers scheme see far east conference great northern merchants elevator schwartz legal restriction competition regulated industries abdication judicial responsibility harv rev jurisdiction thereby ousted postponed see general tank car el dorado terminal federal maritime bd isbrandtsen davis administrative law thus even assume applicability doctrine proceedings banking agencies present action barred agency proceeding completed antitrust action commenced cf western pac retail clerks assn schermerhorn recognize practical effect applying doctrine primary jurisdiction sometimes channel judicial enforcement antitrust policy appellate review agency decision see federal maritime bd isbrandtsen supra cf piazza west coast line cir even preclude enforcement entirely agency power approve challenged activities see nav cunard cf railway express agency supp del see federal maritime bd isbrandtsen supra may power judicial review administrative decision approving merger approval event confer immunity antitrust laws see pp supra furthermore considerations militate finding repeal antitrust laws implication existence regulatory scheme also argue persuasively attenuating postponing courts jurisdiction enforce laws unnecessary add holding bank merger act preclude application clayton act bank mergers deprive later statute none intended force congress plainly intend act extinguish sources federal restraint bank acquisitions anticompetitive effects example congress certainly knew bank mergers continue subject sherman act see supra well pure stock acquisitions banks continue subject clayton act addition bank mergers subject see objectives act thereby thwarted clayton sherman acts embodied approaches antitrust policy inconsistent unrelated sherman act course forbids mergers effecting unreasonable restraint trade see northern securities union pac indeed presently pending challenge bank merger predicated solely sherman act first nat bank trust lexington prob juris noted post tests illegality sherman clayton acts complementary public policy announced clayton act taken consideration determining whether acquisition assets violates prohibitions sherman act unreasonable restraints columbia steel see note rev sure every violation amended necessarily violation sherman act point simply since congress passed act intention displacing enforcement sherman act bank mergers even pure stock acquisitions banks continued application bank mergers repugnant design act anomalous conclude congress intending sherman act remain fully applicable bank mergers clayton act remain fully applicable pure stock acquisitions banks nevertheless intended completely inapplicable bank mergers iii lawfulness proposed merger section difficulty determining line commerce relevant product services market section country relevant geographical market appraise probable competitive effects appellees proposed merger agree district cluster products various kinds credit services checking accounts trust administration denoted term commercial banking see note supra composes distinct line commerce commercial banking products services distinctive entirely free effective competition products services financial institutions checking account category others enjoy cost advantages insulated within broad range substitutes furnished institutions example commercial banks compete companies market companies rates invariably much higher banks part seems companies working capital consists substantial part bank loans finally banking facilities although terms cost price freely competitive facilities provided financial institutions nevertheless enjoy settled consumer preference insulating marked degree competition seems case savings deposits sum clear commercial banking market sufficiently inclusive meaningful terms trade realities crown zellerbach federal trade cir part company district determination appropriate section country proper question asked case parties merger business even compete within area competitive overlap effect merger competition direct immediate see bock mergers markets depends upon geographic structure relations kaysen turner policy banking service industries convenience location essential effective competition individuals corporations typically confer bulk patronage banks local community find impractical conduct banking business distance see transamerica board govs fed res cir factor inconvenience localizes banking competition effectively high transportation costs industries see american crystal sugar sugar supp aff cir therefore since recently said related context area effective competition known line commerce must charted careful selection market area seller operates purchaser practicably turn supplies tampa elec nashville coal emphasis supplied see standard oil area appellees offices located seem relevant geographical market cf brown shoe supra fact vast bulk appellees business originates area theoretically concerned possibility bank offices perimeter area may effective competition bank offices within actually seems factor little significance recognize area appellees offices delineate perfect accuracy appropriate section country appraise effect merger upon competition large borrowers large depositors record shows may find practical large part banking business outside home community small borrowers depositors may practical matter confined bank offices immediate neighborhood customers intermediate size appear deal banks within area intermediate extremes see notes supra also banking services evidently local nature others banking relevant geographical market function separate customer economic scale means simply workable compromise must found fair intermediate delineation avoids indefensible extremes drawing market either expansively make effect merger upon competition seem insignificant largest bank customers taken account defining market narrowly place appellees different markets smallest customers considered think philadelphia metropolitan area state law apparently recognizes meaningful banking community allowing philadelphia banks branch within seem roughly delineate area bank customers neither large small find practical banking business appropriate section country appraise instant merger larger smaller different area cf hale hale market power size shape sherman act helped conclusion fact three federal banking agencies regard area banks offices area effective competition fdic frb reports submitted comptroller currency connection appellees application permission merge hold comptroller statement approving merger agreed respect effect upon competition three separate levels effective areas competition involved national level national accounts regional sectional area local area city philadelphia immediately surrounding area determined relevant market come ultimate question whether effect merger may substantially lessen competition relevant market clearly kind question susceptible ready precise answer cases requires merely appraisal immediate impact merger upon competition prediction impact upon competitive conditions future meant said amended intended arrest anticompetitive tendencies incipiency see brown shoe supra prediction sound based upon firm understanding structure relevant market yet relevant economic data complex elusive see generally bok section clayton act merging law economics harv rev unless businessmen assess legal consequences merger confidence sound business planning retarded see crown zellerbach federal trade cir also must alert danger subverting congressional intent permitting economic investigation standard oil case possible without violence congressional objective embodied simplify test illegality courts interest sound practical judicial administration see union carbide trade reg ftc complaints orders concurring opinion case noted brown shoe supra dominant theme pervading congressional consideration amendments fear considered rising tide economic concentration american economy intense congressional concern trend toward concentration warrants dispensing certain cases elaborate proof market structure market behavior probable anticompetitive effects specifically think merger produces firm controlling undue percentage share relevant market results significant increase concentration firms market inherently likely lessen competition substantially must enjoined absence evidence clearly showing merger likely anticompetitive effects see koppers supp test lightens burden proving illegality respect mergers whose size makes inherently suspect light congress design prevent undue concentration furthermore test fully consonant economic theory ompetition likely greatest many sellers none significant market share common ground among economists undoubtedly premise congressional reasoning antimerger statute merger appellees result single bank controlling least commercial banking business philadelphia metropolitan area without attempting specify smallest market share still considered threaten undue concentration clear presents threat whereas presently two largest banks area first pennsylvania pnb control approximately area commercial banking business two largest merger first pennsylvania control plainly think increase concentration must regarded significant conclusion percentages raise inference effect contemplated merger appellees may substantially lessen competition arbitrary one although neither terms legislative history suggests particular percentage share deemed critical house report tests illegality amended intended similar courts applied interpreting language used sections clayton act sess accordingly relied upon decisions sections applying see brown shoe supra passim cf du pont de nemours standard oil cited sess held violative clayton act exclusive contracts whereby defendant company accounted sales relevant market together six firms accounted sales maintained control outlets approximately sales made federal trade motion picture adv serv held unlawful sherman act federal trade commission act rather clayton act exclusive arrangements whereby four major firms industry foreclosed relevant market respondent market share evidently kessler stern competition contract vertical integration yale instant case way comparison four largest banks merger foreclose relevant market supra standard fashion held violative series exclusive contracts whereby single manufacturer controlled industry retail outlets doubtless cases turned extent upon whether nature market room newcomers federal trade motion picture adv serv supra remain highly suggestive present context noted brown shoe supra integration merger suspect integration contract greater permanence former market share market concentration figures cases taken together scholarly opinion see notes supra support believe inference draw instant case figures disclosed record nothing record case rebut inherently anticompetitive tendency manifested percentages sure testimony bank officers effect competition among banks philadelphia vigorous continue vigorous merger think however district reliance evidence misplaced lay evidence complex problem substantiality effect merger upon competition entitled little weight view witnesses failure give concrete reasons conclusions equally little value think assurances offered appellees witnesses customers dissatisfied services resulting bank may readily turn banks philadelphia area every case short outright monopoly disgruntled customer alternatives even tightly oligopolistic markets may small firms operating fundamental purpose amending arrest trend toward concentration tendency monopoly consumer alternatives disappeared merger purpose law stayed hand philadelphia banks absorbed fanciful eventuality view strong trend toward mergers evident area see supra might note also entry new competitors banking field far easy also reject position commercial banking subject high degree governmental regulation deals intangibles credit services rather manufacture sale tangible commodities somehow immune effects undue concentration competition among banks exists every level price variety credit arrangements convenience location attractiveness physical surroundings credit information investment advice service charges personal accommodations advertising miscellaneous special extra services keen appellees witnesses emphatic reason think concentration less inimical free play competition banking service industries contrary probability inimical example banks compete fill credit needs businessmen small businessmen especially practical matter confined locality satisfaction credit needs see note supra number banks locality reduced vigor competition filling marginal small business borrower needs likely diminish time concomitantly greater difficulty obtaining credit likely put disadvantage larger businesses competes fashion concentration banking accelerates concentration generally turn three affirmative justifications appellees offer proposed merger first mergers banks follow customers suburbs retain business justification seem particularly related instant merger event merit alternative merger route opening new branches areas customers moved de novo branching appellees contend unable expand thus opening new offices rather acquiring existing ones surely one premise antimerger statute corporate growth internal expansion socially preferable growth acquisition second suggested increased lending limit resulting bank enable compete large banks particularly new york banks large loans reject application concept countervailing power cf joseph seagram sons anticompetitive effects one market justified consequences another logical upshot every firm industry without violating embark series mergers make end large industry leader commercial banks philadelphia area merged one smaller largest bank new york city case plainly two small firms market propose merge order able compete successfully leading firms market case lack adequate banking facilities causing hardships individuals businesses community present two largest banks philadelphia lending limits businesses located philadelphia area find limits inadequate large enough readily obtain bank credit cities brings us appellees final contention philadelphia needs bank larger order bring business area stimulate economic development see note supra clear however merger effect may substantially lessen competition saved ultimate reckoning social economic debits credits may deemed beneficial value choice magnitude beyond ordinary limits judicial competence event made us already congress enacted amended congress determined preserve traditionally competitive economy therefore proscribed anticompetitive mergers benign malignant alike fully aware must assume price might paid holding merger appellees violate must therefore enjoined reject appellees pervasive suggestion application procompetitive policy banking industry dire although unspecified consequences national economy concededly pnb girard healthy strong undercapitalized overloaned management problems philadelphia area overbanked ruinous competition offing section mandate competition banking industry exclude defenses based dangers liquidity solvency avert merger necessary require however forces competition allowed operate within broad framework governmental regulation industry fact banking highly regulated industry critical nation welfare makes play competition less important price repetition note businessman denied credit banking alternatives eliminated mergers whole edifice entrepreneurial system threatened costs banking services credit allowed become excessive absence competitive pressures virtually costs credit economy affected unless competition allowed fulfill role economic regulator banking industry result may well even governmental regulation subject narrow qualifications surely case competition fundamental national economic policy offering alternative cartelization governmental regimentation large portions economy cf northern pac warrant declining enforce instant case judgment district reversed case remanded direction enter judgment enjoining proposed merger ordered footnotes discussion portion opinion draws upon undisputed evidence record case supplemented pertinent reference materials see board govs fed res system financing small business comm print federal reserve system ed concentration banking comm print bogen competitive position commercial banks commission money credit money credit freeman problems adequate bank capital hart money debt economic activity ed lent changing structure commercial banking sayers modern banking ed staff house select comm small business banking concentration small business attorney general comm administrative procedure federal control banking doc fox supervision banking comptroller currency public administration policy formation redford ed stokes public convenience advantage applications new banks branches banking materials focus specifically question competition banking industry see also alhadeff monopoly competition banking chapman concentration banking horvitz concentration competition new england banking lawrence banking concentration berle banking laws rev chandler monopolistic elements commercial banking pol econ gruis antitrust laws application banking geo rev funk legislation affecting bank mergers bus law klebaner federal control commercial bank mergers ind wemple cutler federal bank merger law antitrust laws bus law comment bank charter branching holding company merger laws competition frustrated yale note federal regulation bank mergers opposing views federal banking agencies department justice harv rev addition certain amount bank holding company activity bank holding company act brought bank holding companies stringent federal regulation registered bank holding companies controlled banking offices deposits lent changing structure commercial banking see also comment supra note yale creation sure pure sleight hand bank may make loan without adequate reserves nevertheless element bank money creation real samuelson economics ed principal banking products course various types credit example unsecured personal business loans mortgage loans loans secured securities accounts receivable automobile installment consumer goods installment loans tuition financing bank credit cards revolving credit funds banking services include acceptance demand deposits individuals corporations governmental agencies banks acceptance time savings deposits estate trust planning trusteeship services lock boxes boxes account reconciliation services foreign department services acceptances letters credit correspondent services investment advice noted many institutions business supplying credit less competition commercial banks see pp infra example mutual savings banks savings loan associations credit unions companies companies private businessmen furnishing trade credit factors government agencies post office small business investment corporations life insurance companies example three bank suspensions entire country reason financial difficulties two nine nine four involved state banks neither members frs insured fdic annual report comptroller currency typical year roughly banks failed throughout country national banks see regulation bank mergers sess proposed merger appellees technically consolidation since resulting bank different entity either constituent banks whereas transaction merger girard disappear pnb pnb survive however proposed transaction resembles merger closely pnb shareholders surrender present share certificates resulting bank operate pnb charter event statute treats mergers consolidations essentially alike compare supp iv suggested legal question instant case affected whether transaction technically merger consolidation therefore throughout opinion use term merger section provides pertinent part insured fdic bank shall merge consolidate insured bank either directly indirectly acquire assets assume liability pay deposits made insured bank without prior written consent comptroller currency acquiring assuming resulting bank national bank district columbia bank ii board governors federal reserve system acquiring assuming resulting bank state member bank except district bank iii federal deposit insurance corporation acquiring assuming resulting bank insured bank except district bank granting withholding consent subsection comptroller board corporation case may shall consider financial history condition banks involved adequacy capital structure future earnings prospects general character management convenience needs community served whether corporate powers consistent purposes chapter case merger consolidation acquisition assets assumption liabilities appropriate agency shall also take consideration effect transaction competition including tendency toward monopoly shall approve transaction unless considering factors finds transaction public interest interests uniform standards acting merger consolidation acquisition assets assumption liabilities subsection agency unless finds must act immediately order prevent probable failure one banks involved shall request report competitive factors involved attorney general two banking agencies referred subsection comptroller board corporation shall include annual report congress description merger consolidation acquisition assets assumption liabilities approved period covered report along following information statement comptroller board corporation case may basis approval see supra resulting bank lending limit attributable merger unrelated accounting factors evidence philadelphia although ranks fourth fifth among nation urban areas terms general commercial activity ranks ninth terms size largest bank large business firms head offices philadelphia must seek elsewhere satisfy banking needs inadequate lending limits philadelphia banks first pennsylvania pnb currently two largest banks philadelphia lending limit girard appellees offered testimony merger enable certain economies scale specifically enable formation elaborate foreign department either bank presently able maintain attempted justification mentioned district opinion developed fullness consider abandoned reject argument clayton act amended confers jurisdiction banks upon ftc section provides pertinent part authority enforce compliance sections title clayton act amended persons respectively subject thereto vested federal reserve board applicable banks banking associations trust companies federal trade commission applicable character commerce argument since frb authority enforce clayton act bank mergers see note infra bank mergers must fall residual category character commerce subject ftc however intimation legislative history amendment ftc traditional lack jurisdiction banks disturbed moreover clear language banks banking associations trust companies meant comprise distinct character commerce part character commerce reserved ftc exclusion banks ftc jurisdiction appears motivated fact banks already subject extensive federal administrative controls see hurst son federal trade argument made case banking commerce therefore inapplicable plainly argument merit see transamerica board govs fed res cir cf underwriters merger necessarily involves complete disappearance one merging corporations sale assets hand may involve substitution cash part selling company properties change corporate structure change stockholder interests shareholders merging corporations surrender interests corporations exchange different rights resulting corporation asset acquisition however shareholders selling corporation obtain interest purchasing corporation retain interest assets transferred merger unlike asset acquisition resulting firm automatically acquires rights powers franchises liabilities fiduciary rights obligations merging firms merger asset acquisition likelihood continuity management personnel finally merger like stock acquisition necessarily involves acquisition one corporation immediate voice management business another corporation voice decisions another corporation acquired purchase part assets brief merger appellees may effected upon affirmative vote holders outstanding stock bank pnb acquiring girard stock girard shareholder decide whether transfer shares merger requires public notice whereas stock acquired privately shareholder dissenting merger right receive appraised value shares whereas shareholder comparable right acquisition stock furthermore corporate existence merged company terminated merger remains unaffected acquisition stock brief appellees legislative history act reviewed brown shoe notes case acquisition like instant one shares acquired corporation exchanged shares resulting corporation fortiori discern difficulty conceptualizing transaction stock acquisition compare note supra statements effect may found brown shoe supra du pont de nemours columbia steel columbia pictures supp see also op atty hernacki mergerism section clayton act geo rev wemple cutler federal bank merger law antitrust laws bus law note section clayton act legislative history rev actually holdings three cases reached thatcher swift quite narrow see generally note rev based lack substantive power enforcement section limited ftc remedial powers order requiring person cease desist violations clayton act divest stock held rid directors chosen contrary provisions sections seven eight act stat faced congress evident refusal confer upon ftc ordinary powers equity held unless assets acquired ftc order stock divestiture issued case federal trade western meat supra commission sustained commission order divestiture assets compare board govs fed res sys transamerica cir federal trade international paper cir since decisions ftc powerless even transfer assets evasive maneuver aimed defeating ftc remedial jurisdiction stock acquisitions violative fortiori commission powerless typical merger see hegeman elec federal trade supra part amendments clayton act amended read order requiring person divest stock share capital assets held whether original matter thatcher swift correctly decided longer open question since explicit premise amendment see state bd ins todd shipyards infra question ftc remedial powers clayton act distinguished remedial powers federal trade commission act federal trade eastman kodak relying thatcher swift held commission power order divestiture proceedings cf gilbertville trucking pan american world airways see note supra text amended original read pertinent part corporation engaged commerce shall acquire directly indirectly whole part stock share capital another corporation engaged also commerce effect acquisition may substantially lessen competition corporation whose stock acquired corporation making acquisition restrain commerce section community tend create monopoly line commerce passage amendment followed many years unsuccessful attempts enact legislation plugging loophole see note rev notes sure amendment intended enlarge number transactions covered also change test illegality legislative history pertinent latter point reviewed brown shoe supra directly relevant present discussion purpose proposed legislation amendments prevent corporations acquiring another corporation means acquisition assets whereunder sic present law prohibited acquiring stock said corporation since acquisition stock significant chiefly likely result control underlying assets failure prohibit direct purchase assets inconsistent paradoxical effect existing law sess theme pervaded congressional consideration proposed amendments see passim hearing subcommittee house committee judiciary amending sections clayton act ser pp hearings subcommittee senate committee judiciary corporate mergers acquisitions sess cong rec congressman celler sponsor bill amend house bill seeks plug loophole present antitrust laws time stop look listen call halt merger movement going country cong rec columbia steel involved cash purchase steel corporation physical assets consolidated steel corporation exchange shares alteration consolidated corporate identity see transcript record columbia steel october term pp result purchase horizontal aspect steel controlled structural steel fabricating market western area held acquisition reached clayton act see violate sherman act noted however regarded figure proposed government doubtful assumption also pointed unusual conditions tending mitigate anticompetitive effect acquisition columbia steel repeatedly cited congressmen considering amendment example conceived inability sherman act construed deal problems corporate concentration see sess hearing subcommittee house committee judiciary amending sections clayton act ser pp hearings subcommittee senate committee judiciary corporate mergers acquisitions sess cong rec senator kefauver senate sponsor bill amend columbia steel case vivid illustration necessity proposed amendment clayton act cf cong rec see note supra congressional attitude toward thatcher swift decisions typified remark senator effect said federal trade commission quite free use power congress conferred upon long confined use power ordering divestiture pieces paper happened worthless cong rec senator remarked example doubt fundamental fact innocent defect drafting section clayton act back resulted creating great opportunity escape flagrant violators law cong rec sharply criticizing decisions senator continued take record perfectly clear bill purports correct omission original clayton act authors clayton act congress passed enacted bill law thought giving federal trade commission administrative authority prevent monopolistic mergers ibid also senator kefauver observed much better economy country repealed sections clayton act rather let loophole remain large monopolistic mergers become detrimental system nation occurred way plain evasion intent original clayton act cong rec cash purchase another bank assets seem fully effective method corporate acquisition industries cash purchase plant inventory patents trade secrets like often directly enhance competitive position acquiring corporation columbia steel co bank desiring increase share banking business corporate acquisition ordinarily need acquire bank deposits capital merely assets deposits mean working capital additions capital surplus increase lending limit cash purchase effect substitutes cash cash since bank assets consist principally cash liquid securities loans receivable adds nothing acquiring bank capital surplus working capital true exchange stock assets achieve acquiring bank objectives clear however light congress overriding purpose amending close loophole original section exchange clearly evasive transaction tantamount effects merger exchange assets acquisition within meaning treated transaction subject section overlooked fact corporations industries subject ftc jurisdiction chief among air carriers subject civil aeronautics board carriers subject interstate commerce commission agencies given expressly broad powers exempt mergers acquisitions whatever form antitrust laws see therefore exclusion assets acquisitions industries seem little significance section clayton act vests frb authority enforce applicable banks provision act since first passed changed amendments bank merger act assigning roles merger applications fdic comptroller currency well frb plainly supplanted think whatever authority frb may acquired virtue amendment enforce bank mergers since bank merger act applies mergers consolidations acquisitions assets assumptions liabilities outright stock acquisitions frb authority existed amendment remains unaffected see transamerica board govs fed res cir nothing opinion course limits power ftc amended reach transaction including mergers consolidations broad range including pure stock pure assets acquisitions acquiring corporation subject ftc jurisdiction see order divestiture stock share capital assets acquired transaction see see statement assistant attorney general bergson significant effect future essential amended federal trade commission position deal merger problem exists today hearing subcommittee house committee judiciary amending sections clayton act ser see also cong rec cong rec representative byrne suggested amendment sections clayton act merely give federal trade commission power regard asset acquisitions already possesses acquisitions stock close loophole restore meaning see staff subcommittee house committee judiciary bank mergers concentration banking facilities vii printed cong rec hearings subcommittee senate committee banking currency financial institutions act pt testimony attorney general brownell regulation bank mergers sess regulation bank mergers sess see remarks representative spence clayton act ineffective bank mergers case banks covers stock acquisitions bank mergers accomplished way cong rec see also note supra contention abandoned appeal consider nevertheless touches proper relations judicial administrative spheres western pac contrast express exemption provisions federal aviation act federal communications act interstate commerce act shipping act ed supp iii act clayton act see freight joint traffic northern securities plurality opinion dissenting opinion pacific arctic ry nav keogh chicago central transfer terminal railroad terminal warehouse pennsylvania borden oil georgia pennsylvania alkali export assn allen bradley local union northern pac radio america maryland va milk producers assn california federal power pan american world airways silver new york stock exchange see keogh chicago supra pan american world airways supra cf texas pac abilene cotton oil respect question upon intimate view whether judicial review comptroller decision possible notwithstanding absence specific provision see note harv rev note rev cf davis administrative law see generally jaffe primary jurisdiction reconsidered laws rev latta primary jurisdiction regulated industries antitrust laws cin rev note regulated industries antitrust laws substantive procedural coordination rev california federal power supra held fpc must stay proceeding merger application completion pending antitrust suit justice department fortiori entertaining suit required abstain pending consideration merger application fpc need consider question whether california decision control comptroller denied opportunity approve merger antitrust suit commenced cf aluminum america cir instant case unlike aluminum virtually time lag banks furnishing competing financial institutions companies example raw material money institutions selling finished product loans hence instant case compared aluminum respect fortiori one banker testified quite frankly instant case response question feel substantial competition institutions companies lend money loans want make oh definitely stop making loans reason competitive disadvantage lending institutions banks banks obtain bulk working capital without pay interest comparable charges thereon virtue unique power accept demand deposits critical area commercial credit see pp supra appears one banks little effective competition save case large companies meet financing needs retained earnings issuing securities paper one witness defendants testified philadelphia years mutual savings banks offering per cent instances per cent higher interest commercial banks nevertheless rate increase savings accounts commercial banks kept pace many banks exceeded rate increase mutual banks paying per cent made inquiries four banks corner broad chestnut three commercial banks offering per cent one mutual savings bank offering far able discover anybody philadelphia take trouble walk across broad street get per cent interest ask say know habit custom personal relationships convenience banking one roof appear factors superior changes interest rate level consider following colloquy governmental counsel witness defendants consider area branch office well set rule hope area miles however opened branches directly communities banks established fact across street question getting new business question servicing retaining accounts business necessarily dependent upon customer within mile two branch large degree found losing deposit accounts regularly offices banks opening offices sections city order retain accounts get additional business felt necessary establish branches figures pnb girard respectively dollar volume commercial industrial loans originate area personal loans real estate loans lines credit personal trusts time savings deposits demand deposits demand deposits individuals actually figures may low evidence discloses business done outside area large borrowers large depositors appellees large deal small businessmen average individuals located area example appellees combined total business demand deposits originate area reinforces thesis smaller customer smaller banking market geographically see note supra appellees concede area sufficient commercial importance qualify brown shoe supra section country within meaning see maryland va milk producers assn cf yellow cab indiana farmer guide publishing prairie farmer publishing appellees suggest bank offices skirting area provide meaningful alternatives bank customers within area alternatives provided large banks new york elsewhere solicit business philadelphia area evidence amount business done area banks offices outside area may figures unobtainable event seem local orientation banking insofar smaller customers concerned see notes supra competition outside area important larger borrowers depositors area remains valid geographical market assess anticompetitive effect proposed merger upon banking facilities available smaller customer perfectly good line commerce light congress evident concern enacting amendments preserving small business see brown shoe supra practical matter small businessman satisfy credit needs local banks sure still artificiality deeming area relevant section country far businessmen located near perimeter concerned fuzziness seem inherent attempt delineate relevant geographical market note rev notable outside area appellees business rapidly thins thus six counties delaware valley account appellees combined individual demand deposits demand deposits partnerships corporations loans savings deposits business time deposits see kaysen turner antitrust policy stigler mergers preventive antitrust policy rev bok supra cf markham merger policy new section appraisal rev comment substantially lessen competition current problems horizontal mergers yale see machlup economics sellers competition bain barriers new competition cf mason market power business conduct comments econ rev see supra note three factors cause us shade percentages given earlier opinion seeking calculate market share percentages took account banks business area offices however seems factor little importance least insofar smaller customers concerned see note supra percentages took account banks offices area home offices however seem two offices appellees make reference omission percentages amount business banks located area appellees originates area appellees contend since banks smaller concentratedly local business appellees hence account relatively larger proportion business doubt much correction needed five largest banks area present control area banks assets thus even small banks somewhat different pattern business difficult see substantially diminish appellees share local banking business evidence introduced quantitative significance three factors appellees contend practical matter evidence obtained circumstances think downward correction percentages produces conservative estimate appellees market share kaysen turner supra note suggest line prima facie unlawfulness stigler suggests acquisition firm controlling market merger presumptively unlawful markham mentions bok principal test increase market concentration suggests figure consult note supra intimate view validity tests need consider percentages smaller case bar note tests rigorous required dispose instant case needless say fact merger results market share less substantial increase concentration instant case raise inference merger violative see brown shoe supra see note supra answer among three presently largest firms first pennsylvania pnb girard increase concentration argument valid market become unduly concentrated concentration legally privileged contrary concentration already great importance preventing even slight increases concentration preserving possibility eventual deconcentration correspondingly great comment note supra fact bank officers testified represented small banks competition appellees substantially enhance probative value testimony test competitive market whether small competitors flourish also whether consumers well served see bethlehem steel supp ongressional concern protection competition competitors brown shoe supra oligopolistic market small companies may perfectly content follow high prices set dominant firms yet market may profoundly anticompetitive entry course wholly matter governmental grace see supra period ending one new bank opened philadelphia area end years new bank controlled area deposits following colloquy representative jennings nature competition among commercial banks keen highly competitive think observation never known competition among banks keener today area competition exist think stiffest sternest competition field obtain demand deposits loans form competition take takes many forms dealing deposits large corporations wealthy individuals say major banks country competing deposits hold true regards loans corporations wealthy individuals go field smaller loans smaller deposits competition regional wide nevertheless regional large banks well small banks business everything form competition take competition price say competition price interest rates regulated top level laws interest rates bottom level legal limitation practical purposes prime rate furnishes effective floor say area competition interest rates range let us say prime rate per cent normal loans exclusive consumer loans higher rates permitted area service charges say banks competitive field base service charges primarily costs maintain weather eye windward competitors charging service charge field minute get line connection service charges find customers start protest something done customers leave differential service charges significance believe competition really affected price area think affected largely quality caliber service banks give whether feel received right way whether welcome bank personalities enter heavily think price major factor banking competition factor major thus arguably defense see international shoe federal trade might somewhat larger contours applied bank mergers greater public impact bank failure compared ordinary business failures question defenses actions must allowed order avert unsound banking conditions us intimate view upon justice harlan justice stewart joins dissenting suspect one surprised government find clayton act carried day case response apparently accelerating trend toward concentration commercial banking system country trend existing laws evidently control numerous bills introduced congress period department justice federal banking agencies advocated divergent methods dealing competitive aspects bank mergers former urging extension clayton act cover mergers latter supporting regulatory scheme effect bank merger competition one factors considered determining whether merger public interest justice department proposals repeatedly rejected congress regulatory approach banking agencies adopted bank merger act see infra pp sweeping aside design fashioned bank merger act predicated upon uncertainty scope clayton act ante today holds applicable bank mergers concludes violated case respectfully submit holding sanctions remedy regarded congress inimical best interests banking industry public large measure serve frustrate objectives bank merger act finds justification either terms amendment clayton act history statute key case found special position occupied commercial banking economy country respect nature operations performed degree governmental supervision involved fundamentally different ordinary manufacturing mercantile businesses unique powers commercial banks accept demand deposits provide checking account services lend fractional reserves permit banking system whole create supply money function indispensable maintenance structure national economy amount funds held commercial banks large indeed demand deposits alone represent approximately money supply since bank assets must sufficiently liquid accommodate demand withdrawals commercial industrial loans major element bank portfolios thus making commercial banks principal source shortterm business credit many services also provided banks less collateral areas receive active competition financial institutions deposit banking operations affect volume money credit also value dollar stability currency system field considerations simply preservation competition relevant moreover commercial banks entrusted safekeeping large amounts funds belonging individuals corporations unlike ordinary investor depositors regard funds subject risk loss least case demand depositors receive return taking risk bank failure community disaster impact first strikes bank depositors heavily spreads throughout economic life community safety soundness banking practices thus critical factors banking system extensive blanket state federal regulation commercial banking much aimed limiting competition reflects factors since opinion describes length aspects supervision exercised federal banking agencies ante pp point opinion regulation evidences plain design grounded solid economic considerations deal banking specialized field view confirmed bank merger act history federal legislation dealing bank mergers dates congress provided subject approval comptroller currency two national banks consolidate form new national bank similar provision made consolidation state national bank resulting national bank mergers national state banks national banks authorized also conditioned approval comptroller currency congress authorized theretofore prohibited merger consolidation national bank state bank assuming resulting bank state bank addition federal deposit insurance act amended require approval fdic mergers consolidations insured noninsured banks specified federal banking agencies conversions insured banks insured state banks conversion result capital stock surplus newly formed bank less converting bank act required insured banks merging insured state banks secure approval comptroller currency assuming bank national bank approval board governors federal reserve system fdic respectively assuming resulting bank state member bank nonmember insured bank none legislation prescribed standards appropriate federal banking agencies guided determining significance attributed anticompetitive effects proposed merger previously noted supra congress became increasingly concerned problem antitrust laws apparently provided solution one case prior firstamerica civil march settled consent decree either sherman clayton act invoked attack commercial bank merger indeed inapplicability bank mergers clayton act even amended time explicit premise department justice performed antitrust duties passing upon application informal clearance bank merger department stated complete consideration matter concluded department jurisdiction proceed section clayton act reason department presently plan take action matter hearings antitrust subcommittee house committee judiciary ser pt basis provisions department justice concluded apparently agree asset acquisitions banks covered section clayton act amended hearings financial institutions act subcommittee senate committee banking currency pt inapplicability bank mergers also explicit basis congress acted passing bank merger act senate report bill finally enacted stated since bank mergers customarily invariably carried asset acquisitions exempt section clayton act stock acquisitions bank holding companies distinguished mergers consolidations subject bank holding company act sec clayton act sess stat section clayton act amended correct deficiencies acquisitions assets included within section addition stock acquisitions case corporations subject jurisdiction federal trade commission banks subject jurisdiction federal reserve board purposes clayton act virtue section act affected instead extending scope cover bank mergers numerous proposed amendments section designed accomplish congress made deliberate policy judgment impossible subject bank mergers simple rule section clayton act act merger barred might tend substantially lessen competition regardless effects public interest cong rec remarks senator robertson sponsor peculiar nature commercial banking industry crucial role economy intimate connection fiscal monetary operations government congress rejected notion general economic business premises clayton act considerations applicable field unrestricted bank competition thought major cause panic bank failures regarded highly undesirable condition impose banks future banking important depositors borrowers government public generally permit unregulated unrestricted competition field antitrust laws reflected awareness difference banking regulated industries one hand ordinary unregulated industries commercial enterprises hand cong rec remarks senator fulbright sponsor distinction banking businesses justifies different treatment bank mergers mergers distinction led senate reject flat prohibition clayton act test applies mergers congressional purpose clearly emerges terms statute committee reports hearings floor debates bills time repeated effect competition controlling factor determining whether approve bank merger merger approved public interest even though cause substantial lessening competition following statement typical committee wants make crystal clear intention various banking factors particular case may held outweigh competitive factors competitive factors however favorable unfavorable controlling decision course banking agencies bound consideration competitive factors report attorney general sess congress chosen mergers effect competition highly specialized field commercial banking crystal clear supra face overwhelming evidence contrary perfect equanimity finds uncertainty foundations bank merger act ante premise puts aside irrelevant task construing scope clayton act unable conceive inappropriate case overturn considered opinion concerned reach prior legislation years everyone department responsible antitrust law enforcement banking industry congress bar proceeded assumption amendment clayton act affect bank mergers assumption provided major impetus enactment remedial legislation congress finally settled thought solution problem hand emphatically rejected remedy brought life result course bank merger act almost completely nullified enactment turns exorbitant waste congressional time energy present case illustrates attorney general report designated banking agency longer truly advisory agency decision satisfactory suit may commenced immediately bank merger legality judged solely competitive aspects unencumbered considerations peculiar banking suit deemed lie bank merger consummated introduced field first time significant extent threat divestiture assets complexities disruption attendant upon use sanction vestige bank merger act remains banking agencies initial veto frustration manifest congressional design view unwarranted intrusion upon legislative domain submit whatever may congressional purpose congress plainly pronounced current judgment bank mergers within reach duty bound effectuate choice need rest proposition shown nothing amendment legislative history support conclusion congress even intended subject bank mergers provision clayton act ii prior clayton act read pertinent part follows corporation engaged commerce shall acquire directly indirectly whole part stock share capital another corporation engaged also commerce effect acquisition may substantially lessen competition corporation whose stock acquired corporation making acquisition restrain commerce section community tend create monopoly line commerce corporation engaged commerce shall acquire directly indirectly whole part stock share capital corporation subject jurisdiction federal trade commission shall acquire whole part assets another corporation engaged also commerce line commerce section country effect acquisition may substantially lessen competition tend create monopoly instance however holds provision underwent expansive metamorphosis embraces mergers consolidations involving exchange stock since bank mergers usually always involve exchanges stock effect construction rob federal trade commission provision relating asset acquisitions force substantive limitation upon scope according purpose provision merely ensure commission role enforcement ante pp short reasoning bank mergers intents purposes fully within reach circumspect look amendment background show construction tenable language provision hardly congenial interpretation merger technically consolidation governed national banking laws supp iv section corporate existence pnb girard rights franchises assets liabilities automatically vested resulting bank operate pnb charter pnb acquire nothing rather two banks creating new entity amalgamation properties subsequent conversion girard stock represent ownership nonfunctioning entity stock resulting bank simply part mechanics ownership new entity reflected clearly case corporation acquiring stock another functioning corporation situation effect stock acquisition may substantially lessen competition emphasis added crucial differences merger stock acquisition merger normally requires public notice approval holders outstanding shares corporation dissenting shareholders right receive cash appraised value shares purchase stock may done privately approval involved individual parties transaction unlike merged company corporation whose stock acquired usually remains business subsidiary acquiring corporation government however contends merger closely resembles stock acquisition asset acquisition one similarity central importance acquisition one corporation immediate voice management business another corporation obviously true fortiori asset acquisitions sufficient magnitude fall within prohibition corporation buys plants equipment inventory another corporation acquires absolute control merely voice management another business legislative history amendment also unquestionably negates inference congress intended reach bank mergers true purpose plug loophole cong rec remarks representative celler simply state broad proposition answer precise questions presented nature loophole sought closed means chosen close answer latter question unmistakably indicated relationship amendment previous judicial decisions hegeman elec federal trade divided vote ruled scope federal trade commission remedial powers original clayton act commission issued complaint holding company formed stockholders two manufacturing corporations steps taken avoid commission jurisdiction two new holding companies formed acquired common stock one manufacturing companies issued stock directly stockholders original holding company company dissolved two new holding companies respective manufacturing subsidiaries merged one corporation held commission authority merger order resulting corporation divest assets essential part holding merger question technically consolidation similar planned pnb girard stock acquisition within prohibitions merger two manufacturing corporations combination assets respect violation antitrust law express opinion necessarily violation statutory prohibitions found clayton act see decision along two others earlier handed thatcher mfg federal trade swift federal trade decided together federal trade western meat perhaps provided spur enactment assets amendment single factor decisions universally regarded opening unfortunate loophole whereby evaded use asset acquisition representative celler expressed view congress fashion result decisions weakened sections give federal trade commission department justice merely paper sword prevent improper mergers cong rec held arrow acquiring corporation secured title physical assets corporation whose stock acquired federal trade commission issues final order commission lacks power direct divestiture physical assets sess emphasis added congress act inadvertently without purpose limiting provision corporations subject jurisdiction federal trade commission thereby excluding bank mergers reports hearings debates amendment reveal congress concerned rising tide industrial concentration external expansion mergers acquisitions consolidations corporations engaged manufacturing mining merchandising kindred commercial endeavors specialized areas economy banking even considered thus federal trade commission report mergers recounted statistics concentration multitude industries steel cement electrical equipment food dairy products tobacco textiles paper chemicals rubber included one figure banking concentration report repeatedly cited heavily relied members congress others demonstrate magnitude merger movement economic dangers presented committee hearings focus exclusively upon amalgamation ordinary commercial fields similarly senate house reports spoke solely industrial concentration evil remedied floor house representative celler indicated extent concentration industrial power four companies percent steel business four percent copper business two percent aluminum business three percent automobile business two percent electric lamp business four percent electric refrigerator business two percent glass business four percent cigarette business forth antitrust laws complete bust unless pass bill cong rec mean suggest course clayton act thereby rendered applicable ordinary commercial industrial corporations firms regulated sector economy point congress included asset acquisitions corporations subject federal trade commission jurisdiction time continued federal reserve board jurisdiction banks acting irrationally rather absence mention banks legislative history amendment viewed light prior congressional treatment banking distinctive area special characteristics needs compels conclusion bank mergers simply regarded part loophole plugged conclusion confirmed number additional considerations passage amendment representative celler requested staff antitrust subcommittee house committee judiciary prepare report indicating concentration existing banking system staff subcommittee house committee judiciary report bank mergers concentration banking facilities iii introduction report reveals march board governors federal reserve system wrote chairman committee judiciary requesting provisions congress first session one early predecessors celler antimerger act extended include corporations subject jurisdiction federal reserve board section clayton act revisions made subsequent versions antimerger bills however became impracticable include within scope act corporations subject regulation federal trade commission banks placed squarely within authority federal reserve board section clayton act therefore circumscribed insofar mergers concerned old provisions section certain additional statutes presently concern substantively question competition field banking vii reasons think conclusion inescapable clayton act apply merger contrary conclusion seems little better tour de force see wemple cutler federal bank merger law antitrust laws bus law many bills summarized funk antitrust legislation affecting bank mergers banking agencies areas primary supervisory responsibility comptroller currency national banks federal reserve system state banks fdic insured nonmember banks samuelson economics ed example savings loan associations credit unions institutions compete banks installment lending individuals banks competition individuals personal trust field since bank insolvencies destroy sources credit borrowers also others rely borrowers ability secure loans may adversely affected see berle banking laws rev term merger generally used throughout opinion designate form corporate amalgamation see note opinion ante occasionally however paragraph terms merger consolidation used technical sense stat amended supp iv stat amended supp iv stat amended supp iv see paton conversion merger consolidation legislation street national state banks banking stat amended stat see stat stat supp iv ibid however act insured banks merging insured state banks obtain approval unless capital stock surplus resulting assuming bank less aggregate capital stock surplus merging banks see hearings antitrust subcommittee house committee judiciary ser pt pp hearings subcommittee senate committee banking currency sess hearings senate committee banking currency sess see also sess federal antitrust laws also inadequate task regulating bank mergers attorney general may move bank mergers limited extent sherman act clayton act offers little help section clayton act limited insofar banks concerned cases merger accomplished acquisition stock bank mergers accomplished asset acquisitions rather stock acquisitions act offers little help words hon robert bicks acting head antitrust division controlling bank senate sponsor senator fulbright reported amendment section clayton act first time imposed controls mergers means stock acquisitions apply bank mergers practically invariably accomplished means stock acquisition accordingly practical purposes bank mergers still exempt section clayton act cong rec cong sess sess sess see note supra sess time nation suffered results unregulated uncontrolled competition field banking insufficiently regulated competition rapid increase number small weak banks large number comptroller effectively supervise control worst abuses one factors led panic banking collapse early large part result insufficient regulation control banks effect result much competition see also cong rec unlimited unrestricted competition banking possible many panics banking crises bank failures largely result excessive competition banking consider moment going back days free banking unregulated banking see also sess impossible require unrestricted competition field banking impossible subject banks rules applicable ordinary industrial commercial concerns subject regulation vested public interest pertinent text statute see note opinion ante pp factors financial history condition banks involved adequacy capital structure future earnings prospects general character management convenience needs community served whether corporate powers consistent purposes chapter supp iv compare federal deposit insurance act see also cong rec language amended house banking currency committee appears bill pass house makes clear competitive monopolistic factors considered along banking factors considering factors involved resulting institution public interest application approved otherwise disapproved cong rec puts responsibility acting proposed merger belongs agency charged supervising examining bank result merger years experience supervising banks federal banking agencies developed specialized knowledge banking people engage experts judging condition banks involved prospects management needs community banking services primary responsibility deciding whether proposed merger public interest emphasis added sess convinced also approval merger depend positive showing benefit derived previously indicated committee prepared say cases enumerated hearings instances merger public interest prepared devise specific exclusive list situations merger approved compare state board ins todd shipyards refused reconsider certain prior decisions congress posited regime state regulation insurance business continuing validity cf toolson new york yankees bank merger falls within category stock acquisition suit enjoin may brought attorney general federal reserve board well see clayton act vesting authority board enforce applicable banks attempt retain semblance structure erected congress bank merger act supplanted whatever authority frb may acquired virtue amendment enforce bank mergers ante note since attorney general federal reserve board purely advisory roles bank merger result national bank reasoning respect effect bank merger act upon enforcement authority apply equal force indeed erected simple yardstick order alleviate agony analyzing economic data control commercial banking market prohibited ante pp although clayton act applicable outright purchase bank stock form amalgamation infrequently used banking field involve divestiture problems magnitude asset acquisition true points ante congress enacting bank merger act agreed applicability sherman act banking disturbed see cong rec surely alone provides conceivable justification applying clayton act well apart fact sherman act covers many kinds restraints besides mergers one sponsors bank merger act senator fulbright expressed expectation sherman act case bank merger subjected strict antitrust standards exclusion considerations even sherman act held apply banking bank mergers seems clear rule reason spelled standard oil case different considerations found applicable regulated field like banking determining whether activities unduly diminish competition words case cong rec moreover recognized areas may necessary accommodate sherman act regulatory policy mclean trucking federal communications rca communications see also columbia steel course sherman act concerned existing anticompetitive effects future probabilities thus reach incipient restraints extent clayton act see brown shoe notes respects merger precisely contrary originally designed proscribe secret acquisition corporate control see opinion ante provision intended cover mergers strongly suggested second paragraph corporation shall acquire part stock one corporations effect use stock voting granting proxies may substantially lessen competition tend create monopoly emphasis added merger consummated resulting corporation holds stock party merger thus situation thing restraint trade use voting power acquired stock point dissenters agreed true clayton act forbid corporate mergers see also celanese america supp see also hearings subcommittee house committee judiciary sess hearings subcommittee senate committee judiciary sess loophole sought filled resulted series decisions swift ftc thatcher mfg ftc hegeman ftc decisions held section clayton act prohibiting acquisition stock competitor gave federal trade commission authority section order divestiture assets acquired order issued even though acquisition resulted voting illegally held stock federal trade commission assumed primary enforcement responsibility amendment see martin mergers clayton act compare note supra see note supra hearings subcommittee senate committee judiciary sess amendment described arrow case involving asset acquisition brown shoe note single excerpt quoted ante casts doubt proposition senator kilgore remark occurred course discussion trying make point difference practical effect opposed legal distinction merger stock acquisition thus end paragraph quoted senator stated see earth get idea purchase stock corporation carry transfer physical assets corporation hearings subcommittee senate committee judiciary sess sess federal trade commission merger movement summary report passim hearings subcommittee house committee judiciary sess cong rec cong rec hearings subcommittee senate committee judiciary sess hearings subcommittee house committee judiciary sess sess sess interesting note year amended congress passed act facilitating certain kinds bank mergers theretofore prohibited see note supra accompanying text since reach sherman act aspect case serve useful purpose memorandum justice goldberg agree fully brother harlan clayton act application bank mergers type involved therefore join conclusions expressed opinion point however thus dissent holding respect applicability clayton act merger wish make clear necessarily dissent judgment invalidating merger require conclude addition record stands government failed prove violation sherman act fully applicable commercial banking business opinion substantial sherman act issue case since reach since views relative thereto superfluous light today disposition case express ultimate conclusion concerning compare rescue army municipal los angeles murphy dissenting poe ullman stewart dissenting