In this civil action, the United States, the appellant, charges
that the consolidation of the largest and fourth largest of the six
commercial banks in Fayette County, Kentucky, violates §§ 1 and 2
of the Sherman Act. The Comptroller of the Currency had approved
the consolidation, although reports, required by the Bank Merger
Act of 1960, from the Attorney General, the Federal Deposit
Insurance Corporation, and the Board of Governors of the Federal
Reserve System all concluded that it would adversely affect
competition in the area. Although recognizing that approval by the
Comptroller of the Currency did not immunize the consolidation from
the operation of the Act, the District Court found that no
violation was shown.
Held: The consolidation of the appellee banks
constitutes a violation of § 1 of the Sherman Act. Pp.
376 U. S.
666-673.
(a) Commercial banking is one relevant product market in which
to judge the effect of the consolidation on competition. Pp.
376 U. S.
666-668.
(b) The consolidation should be judged by its effect on
competition in Fayette County, the geographical market. P.
376 U. S.
668.
(c) The new bank controls over half of the relevant market, and,
by its disparity of size, as attested by three of the four
remaining banks, will seriously affect their long-range ability to
compete, despite the absence of any "predatory" purpose. P.
376 U. S.
669.
(d) The elimination of significant competition between the
parties to the consolidation, which were major competitive factors
in the relevant market, of itself constitutes an unreasonable
restraint of trade in violation of § 1 of the Act.
Northern
Securities Co. v. United States, 193 U.
S. 197, followed;
United States v. Columbia Steel
Co., 334 U. S. 495,
distinguished. Pp.
376 U. S.
669-673.
208 F.
Supp. 457 reversed.
Page 376 U. S. 666
Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
JUSTICE BLACK.
This is a civil suit in which the United States charges that the
consolidation of First National Bank and Trust Co. of Lexington,
Kentucky (First National), and Security Trust Co. of Lexington
(Security Trust), to form First Security National Bank and Trust
Co. (First Security), constitutes a combination in restraint of
trade and commerce in violation of § 1 of the Sherman Act and a
combination and an attempt to monopolize trade and commerce in
violation of § 2 of that Act. [
Footnote 1] 26 Stat. 209 as amended, 15 U.S.C. §§ 1,
2.
The plan of consolidation was submitted to the Comptroller of
the Currency and he, pursuant to the provision of the Bank Merger
Act of 1960, 74 Stat. 129, 12 U.S.C (Supp. IV) § 1828(c), requested
and received reports of the probable competitive effects of the
proposed consolidation
Page 376 U. S. 667
from the Attorney General, the Federal Deposit Insurance Corp.,
and the Board of Governors of the Federal Reserve System. Each
report concluded that the consolidation would adversely affect
competition among commercial banks in Fayette County. Nevertheless,
the Comptroller of the Currency approved the consolidation on
February 27, 1961; it was effected March 1, and this Sherman Act
suit was filed the same day. The District Court, while agreeing
that the Comptroller of the Currency's approval of the
consolidation did not render it immune from challenge under the
Sherman Act, [
Footnote 2] held
that no violation of that Act had been shown.
208 F.
Supp. 457. The case is here on direct appeal. 15 U.S.C. § 29.
We noted probable jurisdiction. 374 U.S. 824.
We agree with the District Court that commercial banking is one
relevant market [
Footnote 3]
for determining the § 1 issue in the case. In Fayette County,
commercial banks are the only financial institutions authorized to
receive demand deposits and to offer checking accounts. They are
also the only financial institutions in the county that accept time
deposits from partnerships and corporations and that make
single-payment loans to individuals [
Footnote 4] and commercial and industrial loans to
businesses. Moreover, commercial banks offer a wider variety of
financial services than the other financial institutions,
e.g., deposit
Page 376 U. S. 668
boxes, Christmas Clubs, correspondent bank facilities,
collection services, and trust department services.
We also agree with the District Court that the consolidation
should be judged in light of its effect on competition in Fayette
County. [
Footnote 5] The record
establishes that here, as in
United States v. Philadelphia
National Bank, 374 U. S. 321, the
"factor of inconvenience" does indeed localize banking competition
"as effectively as high transportation costs in other industries."
374 U.S. at
374 U. S. 358.
Practically all of the business of the banks in Lexington
originates in Fayette County. Only 4.8% of First National's demand
deposit accounts and 4.5% of Security Trust's were held by
depositors who did not maintain offices in Lexington. In dollar
volume, the percentage was 2.8 for each bank. Apart from large
national companies, businesses in the area are restricted to the
Fayette County banks for their working capital loans; and
commercial banks outside Lexington do a negligible amount of
business in the county. There is also a negligible amount of
competition from corporate fiduciaries outside Fayette County.
We turn then to the facts relevant to the alleged restraint of
trade under the Sherman Act.
Prior to the consolidation, the relative size of First National
as compared to its five competitors was as follows:
Assets Deposits Loans
First National. . . . . . 39.83% 40.06% 40.22%
Citizens Union. . . . . . 17.06 16.78 16.41
Bank of Commerce. . . . . 12.99 13.32 14.46
Security Trust. . . . . . 12.87 11.88 13.98
Central Bank. . . . . . . 9.14 9.66 8.85
Second National . . . . . 8.10 8.30 6.09
Page 376 U. S. 669
The bank established by the consolidation was larger than all
the remaining banks combined:
Assets Deposits Loans
First Security. . . . . . 52.70% 51.95% 54.20%
Citizens Union. . . . . . 17.06 16.78 16.41
Bank of Commerce. . . . . 12.99 13.32 14.46
Central Bank. . . . . . . 9.14 9.66 8.85
Second National . . . . . 8.10 8.30 6.09
Prior to the consolidation, First National and Security Trust
had been close competitors in the trust department business.
Between them, they held 94.82% of all trust assets, 92.20% of all
trust department earnings, and 79.62% of all trust accounts:
Trust Number
Trust Dept. of Trust
Assets Earnings Accounts
Security Trust. . . . . 50.55% 46.91% 54.31%
First National. . . . . 44.27 45.29 25.31
Citizens Union. . . . . 3.41 4.21 16.01
Second National . . . . 1.33 .63 2.12
Bank of Commerce. . . . .44 2.96 2.26
There was here no "predatory" purpose. But we think it clear
that significant competition will be eliminated by the
consolidation. There is testimony in the record from three of the
four remaining banks that the consolidation will seriously affect
their ability to compete effectively over the years; that the
"image" of "bigness" is a powerful attraction to customers, an
advantage that increases progressively with disparity in size; and
that the multiplicity of extra services in the trust field which
the new company could offer tends to foreclose competition
there.
We think it clear that the elimination of significant
competition between First National and Security Trust constitutes
an unreasonable restraint of trade in violation
Page 376 U. S. 670
of § 1 of the Sherman Act. The case, we think, is governed by
Northern Securities Co. v. United States, 193 U.
S. 197, and its progeny. The Northern Pacific and the
Great Northern operated parallel lines west of Chicago. A holding
company acquired the controlling stock in each company. A violation
of § 1 was adjudged without reference to or a determination of the
extent to which the traffic of the combined roads was still subject
to some competition. It was enough that the two roads competed,
that their competition was not insubstantial, and that the
combination put an end to it.
Id. at
193 U. S.
326-328.
United States v. Union Pacific R. Co., 226 U. S.
61, was in the same tradition. Acquisition by Union
Pacific of a controlling stock interest in Southern Pacific was
held to violate § 1 of the Sherman Act. As in the
Northern
Securities case, the Court held the combination illegal
because of the elimination of the
inter se competition
between the merging companies, without reference to the strength or
weakness of whatever competition remained. The Court said:
"It is urged that this competitive traffic was infinitesimal
when compared with the gross amount of the business transacted by
both roads, and so small as only to amount to that incidental
restraint of trade which ought not to be held to be within the law;
but we think the testimony amply shows that, while these roads did
a great deal of business for which they did not compete, and that
the competitive business was a comparatively small part of the sum
total of all traffic, state and interstate, carried over them,
nevertheless such competing traffic was large in volume, amounting
to many millions of dollars. Before the transfer of the stock, this
traffic was the subject of active competition between these
systems; but, by reason of the power arising from such transfer, it
has since been placed under a common control.
Page 376 U. S. 671
It was by no means a negligible part, but a large and valuable
part, of interstate commerce which was thus directly affected."
Id. at
226 U. S.
88-89.
United States v. Reading Co., 253 U. S.
26, is the third of the series. There, a holding company
brought under common control two competing interstate carriers and
two competing coal companies. That was held, "without more," to be
a violation of §§ 1 and 2 of the Sherman Act.
Id. at
253 U. S.
59.
The fourth of the series is
United States v. Southern
Pacific Co., 259 U. S. 214, in
which the acquisition by Southern Pacific of stock of Central
Pacific -- a connecting link for transcontinental shipments by a
competitor of Southern Pacific -- was held to violate the Sherman
Act. In reference to the earlier cases, [
Footnote 6] the Court said:
"These cases, collectively, establish that one system of
railroad transportation cannot acquire another, nor a substantial
and vital part thereof, when the effect of such acquisition is to
suppress or materially reduce the free and normal flow of
competition in the channels of interstate trade."
Id. at
259 U. S.
230-231.
We need not go so far here as we went in
United States v.
Yellow Cab Co., 332 U. S. 218,
332 U. S. 225,
where we said:
". . . the amount of interstate trade thus affected by the
conspiracy is immaterial in determining whether a violation of the
Sherman Act has been charged in the complaint. Section 1 of the Act
outlaws unreasonable restraints on interstate commerce regardless
of the amount of the commerce affected."
The four railroad cases at least stand for the proposition that,
where merging companies are major competitive
Page 376 U. S. 672
factors in a relevant market, the elimination of significant
competition between them, by merger or consolidation, itself
constitutes a violation of § 1 of the Sherman Act. That standard
was met in the present case in view of the fact that the two banks
in question had such a large share of the relevant market.
It is said that
United States v. Columbia Steel Co.,
334 U. S. 495, is
counter to this view. There, the United States Steel Corp. acquired
the assets of Consolidated Steel Corp. Both made fabricated
structural steel products, the former selling on a nationwide
basis, the latter in 11 States. The conclusion that the acquisition
was lawful was reached after the Court observed,
inter
alia, that, because of rate structures and the location of
United States Steel's fabricating subsidiaries, the latter were
unable to compete effectively in Consolidated's market.
Id. at
334 U. S.
511-518,
334 U. S.
529-530. The
Columbia Steel case must be
confined to its special facts. The Court said:
"In determining what constitutes unreasonable restraint, we do
not think the dollar volume is in itself of compelling
significance; we look rather to the percentage of business
controlled, the strength of the remaining competition, whether the
action springs from business requirements or purpose to monopolize,
the probable development of the industry, consumer demands, and
other characteristics of the market. We do not undertake to
prescribe any set of percentage figures by which to measure the
reasonableness of a corporation's enlargement of its activities by
the purchase of the assets of a competitor. The relative effect of
percentage command of a market varies with the setting in which
that factor is placed."
Id. at
334 U. S.
527-528.
In the present case, all those factors clearly point the other
way, as we have seen. Where, as here, the
Page 376 U. S. 673
merging companies are major competitive factors in a relevant
market, the elimination of significant competition between them
constitutes a violation of § 1 of the Sherman Act. In view of our
conclusion under § 1 of the Sherman Act, we do not reach the
questions posed under § 2.
Reversed.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITE agree with the Court
that the elimination of competition between the two banks in the
circumstances here presented was a violation of § 1 of the Sherman
Act. They would rest the reversal, however, solely on the
conclusion that the factors relied on in
United States v.
Columbia Steel Co., 334 U. S. 495,
334 U. S.
527-528, quoted by the Court, as applied to the facts of
this case, clearly compel the reversal.
[
Footnote 1]
Sections 1 and 2 of the Sherman Act provide in pertinent
part:
"SEC. 1. Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce among
the several States, or with foreign nations, is hereby declared to
be illegal. . . ."
"SEC 2. Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize any part of the trade or commerce among the
several States, or with foreign nations, shall be deemed guilty of
a misdemeanor. . . ."
[
Footnote 2]
That issue was put to rest by
United States v. Philadelphia
National Bank, 374 U. S. 321,
374 U. S.
350-355.
[
Footnote 3]
In view of our disposition of the case, we find it unnecessary
to determine whether trust department services alone are another
relevant market.
[
Footnote 4]
Small loan companies make personal loans of $800 or less at
interest rates higher than those charged by commercial banks. Since
commercial banks carry a large volume of demand deposits, their
real estate loans are generally of a shorter duration than those
offered by savings and loan associations or insurance
companies.
[
Footnote 5]
The Federal Deposit Insurance Corp. and the Federal Reserve
Board used Fayette County as the geographical market, the latter
saying that,
"since there are no concentrations of population in other
counties close enough to create competition with other banks, the
competitive effects of the proposed consolidation would be confined
to the Lexington banks."
[
Footnote 6]
Two of which had been decided after
Standard Oil Co. v.
United States, 221 U. S. 1, which
announced "the rule of reason."
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
But for the Court's return to a discarded theory of antitrust
law, this case would have little future importance. The decision
last Term in
United States v. Philadelphia National Bank,
374 U. S. 321,
that § 7 of the Clayton Act, 15 U.S.C. § 18, is applicable to bank
mergers surely marks the end of cases like this one, in which the
Government relies solely on §§ 1 and 2 of the Sherman Act, 15
U.S.C. §§ 1, 2. Since, however, this case, doomed to be a novelty
in the reports, has become the vehicle for turning the clock back
to antitrust law of days long past, I am constrained to do more
than merely register my dissent.
I
Stripped of embellishments, the Court's opinion amounts to an
invocation of formulas of antitrust numerology and a presumption
that, in the antitrust field, good
Page 376 U. S. 674
things come usually, if not always, in small packages. [
Footnote 2/1] The "facts relevant to the
alleged restraint of trade under the Sherman Act,"
ante,
p.
376 U. S. 668,
on which the Court relies, are: (1) the size relative to their
competitors of First National and Security Trust before the
consolidation and of First Security after the consolidation; (2)
the competitive position before the consolidation of First National
and Security Trust in the more limited area of trust business;
[
Footnote 2/2] and (3) "testimony
in the record from three of the four remaining banks that the
consolidation will seriously affect their ability to compete
effectively over the years . . . ,"
ante, p.
376 U. S.
669.
The testimony to which the Court adverts was provided by
competitors of First Security, and was characterized by the
district judge who heard it as seemingly "based merely upon surmise
and . . . lacking in factual support."
208 F.
Supp. 457, 460. Since the Court suggests no reason for
regarding this evidentiary finding of the trial court as "clearly
erroneous," it must be accepted here,
e.g., United States v.
Yellow Cab Co., 338 U. S. 338,
338 U. S.
341-342, leaving as the factual basis for the Court's
decision only the statistics unquestionably showing that First
National and Security Trust were big, and First Security is bigger.
The embellishment which adorns these statistics is the proposition
that,
"where merging companies are major competitive factors in a
relevant market, the elimination of significant competition between
them, by
Page 376 U. S. 675
merger or consolidation, itself constitutes a violation of § 1
of the Sherman Act,"
ante, pp.
376 U. S.
671-672
The sole support for this proposition, which is defended by no
independent reasoning whatever, is the four "railroad cases," a
reiteration of which forms the bulk of the Court's opinion.
[
Footnote 2/3] It is questionable
whether those cases, three of which involved the combination of
massive transportation systems [
Footnote 2/4] and the fourth a combination of "two great
competing interstate carriers and . . . two great competing coal
companies extensively engaged in interstate commerce," [
Footnote 2/5] have any relevance to the
present factual situation. That question, however, need not be
explored.
In
United States v. Columbia Steel Co., 334 U.
S. 495, these same cases were cited by the Government
for the same proposition urged here: that "control by one
competitor over another violates the Sherman Act . . . ,"
id. at
334 U. S. 531.
The Court relegated the cases to a footnote, and stated that it
would not "examine those cases to determine whether we would now
approve either their language or their holdings."
Ibid.
The facts of the "railroad cases" were found to be "so dissimilar
from that presented" that they could "furnish little guidance" in
deciding the later case.
Ibid. Beyond this explicit
rejection of these cases as a basis for decision is their further
rejection clearly implicit in the portion of the
Columbia
Steel opinion which the Court quotes,
ante, p.
376 U. S.
672.
"In determining what constitutes unreasonable restraint, we do
not think the dollar volume is in itself of compelling
significance; we look rather to the
Page 376 U. S. 676
percentage of business controlled, the strength of the remaining
competition, whether the action springs from business requirements
or purpose to monopolize, the probable development of the industry,
consumer demands, and other characteristics of the market."
334 U.S. at
334 U. S. 527.
Quite obviously, if "bigness" alone provided a sufficient answer to
the questions involved in a § 1 charge, it would be pointless to
attend to the factors set out in
Columbia Steel and
reiterated here, in form approvingly but in fact without
regard.
If regard be had to the criteria enumerated in
Columbia
Steel, none of them, except perhaps those which deal with
"bigness," favor the Government here. Although, for purposes of the
Sherman Act, such statistics have little meaning in the absence of
a context, [
Footnote 2/6] it may be
admitted that the figures in this case of
dollar volume
[
Footnote 2/7] and the
percentage of business controlled are large. So far as
these figures have relevance under the
Columbia Steel
test, they perhaps speak against the appellee.
Page 376 U. S. 677
On the other hand, the
strength of the remaining
competition is attested by findings of fact in the District
Court, not refuted or even mentioned in the Court's opinion:
"As of December 31, 1960, there were in operation in Lexington,
beside the First National Bank and Trust Company and Security Trust
Company, four other commercial banks, namely:"
"Citizens Union National Bank and Trust Company, with total
assets of $27,876,000, total deposits of $24,569,000 and total net
loans and discounts of $14,457,000;"
"Bank of Commerce, with total assets of $21,230,000, total
deposits of $19,500,000 and total net loans and discounts of
$12,738,000;"
"Central Bank and Trust Company, with total assets of
$14,930,000, with total deposits of $14,144,000, and with total net
loans and discounts of $7,799,000;"
"Second National Bank and Trust Company, with total assets of
$13,240,000, total deposits of $12,157,000 and total net loans and
discounts of $5,362,000."
"
* * * *"
"Before and since the consolidation herein referred to, all the
banks in Fayette County have been operated successfully in the
field of commercial banking and in competition with each
other."
"
* * * *"
"In the trial of the case, other than the officials and
employees of the defendant, First Security National Bank and Trust
Company, numerous witnesses, most of whom were men of long
experience in the field of banking, testified to the effect that,
in their opinion, the consolidation of the two Lexington banks
herein referred to would not lessen
Page 376 U. S. 678
competition in the banking field in Fayette County, and did not
tend to create a monopoly in that field."
"According to their testimony, the fact that the merged bank had
a large percentage of the trust business of the community did not
and would not substantially restrain or lessen competition in the
field of commercial banking."
208 F. Supp. at 459-460. [
Footnote
2/8]
The
motive behind the consolidation also is indicated
by the findings below, similarly unchallenged, that
". . . the consolidation herein referred to clearly appears to
have been the result of a lawful program of expansion on the part
of the merging banks, rather than an invidious scheme to restrain
competition or to secure monopoly in the local field of
banking."
208 F. Supp. at 460. Any doubts on this score are removed by the
explicit concession of government counsel at oral argument. before
this Court that there is no evidence at all in the record of an
anticompetitive motive behind the consolidation.
There is nothing whatever in the findings below or in the
opinion of this Court pertinent to the other criteria laid down in
Columbia Steel -- the probable development of the
industry, consumer demands, and other market characteristics --
which supports the Court's conclusion. [
Footnote 2/9]
Page 376 U. S. 679
In sum, the Court's analysis of the facts of this case ends
where it begins -- the conclusion that the consolidation violates
the Sherman Act collapses into the agreed premise that that First
Security is "big."
III
The truth is, of course, that this is, if anything, a Clayton
Act case masquerading in the garb of the Sherman Act. One can
hardly doubt that it comes to us under these false colors only
because the decision last Term that bank mergers could be reached
under the Clayton Act was indeed a surprise to the Government.
See my dissenting opinion in
Philadelphia National
Bank, supra, at
374 U. S. 373.
No one has more sympathy for the Government in this respect than I.
Nevertheless, having "at the outset elected to proceed not under
the Clayton, but the Sherman, Act,"
Times-Picayune Pub. Co. v.
United States, 345 U. S. 594,
345 U. S. 609,
"the Government here must measure up to the criteria of the more
stringent law,"
id. at
345 U.S. 610.
The pernicious effect of allowing the Government to change
horses in midstream in fact, if not quite in form, [
Footnote 2/10] goes beyond this case and,
in the field of banking, beyond even the revitalization of a
properly moribund rule of antitrust law. In combination with the
Philadelphia National Bank case, today's decision
effectively precludes any possibility that the will of the Congress
with respect to bank mergers will be carried out. The Congress has
plainly indicated that it does not intend that mergers in
Page 376 U. S. 680
the banking field be measured solely by the antitrust
considerations which are applied in other industries.
Characteristic of such indications, set out in detail in my
dissenting opinion in the
Philadelphia National Bank case,
supra, at
374 U. S.
374-386, is the following excerpt from the Senate Report
on the bill which became the Bank Merger Act of 1960, 12 U.S.C.
(Supp. IV, 1963) § 1828(c):
"The committee wants to make crystal clear its intention that
the various banking factors in any particular case may be held to
outweigh the competitive factors, and that the competitive factors,
however favorable or unfavorable, are not, in and of themselves,
controlling on the decision."
S.Rep.No. 196, 86th Cong., 1st Sess., 24.
Adherence to the principles enunciated in
Columbia Steel,
supra, would leave room for an accommodation within the
framework of the antitrust laws of the special features of banking
recognized by Congress. It is difficult to see how features
peculiar to banking or indeed any other features of a particular
case which, in reason, should lead to a different result, can stand
up against the bludgeon with which the Court now strikes at
combinations which may well have no fault except "bigness."
I would affirm.
[
Footnote 2/1]
Compare the dissenting opinion in
United States v.
Columbia Steel Co., 334 U. S. 495,
334 U. S.
534.
[
Footnote 2/2]
The reason for singling out this aspect of the banks' activities
is unclear, since the Court does not determine even whether trust
department services should be regarded as a relevant market.
See ante, p.
376 U. S. 667,
note 3. In view of the majority's disposition of the case, I do not
set out here my reasons for believing that the District Court's
determination that the consolidation in question does not violate §
2 of the Sherman Act (monopoly) should be affirmed.
[
Footnote 2/3]
United States v. Yellow Cab Co., 332 U.
S. 218, cited by the Court,
ante, p.
376 U. S. 671,
is wholly irrelevant.
[
Footnote 2/4]
Northern Securities Co. v. United States, 193 U.
S. 197;
United States v. Union Pacific R. Co.,
226 U. S. 61;
United States v. Southern Pacific Co., 259 U.
S. 214.
[
Footnote 2/5]
United States v. Reading Co., 253 U. S.
26,
253 U. S.
59.
[
Footnote 2/6]
The presumption which the Court laid down in
Philadelphia
National Bank, supra, at
374 U. S. 363,
that
"a merger which produces a firm controlling an undue percentage
share of the relevant market, and results in a significant increase
in the concentration of firms in that market is . . . inherently
likely to lessen competition substantially . . ."
was concerned with the application of § 7 of the Clayton Act.
Compare Times-Picayune Pub. Co. v. United States,
345 U. S. 594,
345 U. S. 612,
a Sherman Act case in which the Court noted that "no magic inheres
in numbers," and quoted with approval the statement in
Columbia
Steel, supra, 334 U.S. at
334 U. S. 528,
that "[t]he relative effect of percentage command of a market
varies with the setting in which that factor is placed."
[
Footnote 2/7]
As found by the District Court, in 1960, First National had
"total assets of $65,069,000, total deposits of $58,673,000 and
total net loans and discounts of $35,434,000." 208 F. Supp. at 459.
Security Trust, in 1960, had "total assets of $21,033,000, total
deposits of $17,402,000, and total net loans and discounts of
$12,317,000."
Ibid.
[
Footnote 2/8]
The only contrary evidence, testimony of presidents of three of
the four competing local banks who "expressed considerable fear
that the consolidation would result in serious loss to the other
banks and would be disastrous to some of them," 208 F. Supp. at
460, was discredited by the District Court.
See supra, p.
376 U. S.
674.
[
Footnote 2/9]
With reference to the probable development of the industry, the
Government turns to the past and notes that the number of local
banks decreased from 10 to 7 between 1929 and 1938; but this
statistic, more at home in a Clayton Act case, is of doubtful
significance in the present context, particularly in view of the
period during which the decrease occurred. The same may be said of
the Government's reference to the testimony of the president of a
competing bank that the consolidation from which his bank that
resulted was carried through (years before the First Security
consolidation) principally to enable it "to better compete with the
First National." In fact, in the three years since the First
Security consolidation, there has been no further
concentration.
[
Footnote 2/10]
It is one thing to say, as the Court did in
Times-Picayune,
supra, at
345 U. S. 608,
that "the Clayton Act's more specific standards illuminate the
public policy which the Sherman Act was designed to subserve. . .
." It is quite another thing to treat them as interchangeable.
See id., at
345 U. S.
609-610.