568 HARLAN, J., concurring. Bock, The Relativity of Economic Evidence in Merger Cases-Emerging Decisions Force the Issue, 63 Mich. L. Rev. 1355, 1369, has insisted throughout this proceeding that anticompetitive effects must be proved in fact from post-merger evidence in order for § 7 to be applied. The Court gives little attention to this contention, but I think it must be considered seriously, both because it is arguable and because it was, in a sense, the main source of difference between the Commission and the Sixth Circuit. In its initial decision, the Commission remanded the proceeding to the Examiner for the express purpose of taking additional evidence on the post-merger situation. in the liquid bleach industry. The Commission first held that the record before it, which contained all the information upon which the second Commission decision and the Court rely, was insufficient to support the finding of a § 7 violation. 58 F. T. C. 1203. The Commission's subsequent opinion, handed down by an almost entirely changed Commission, held post-merger evidence generally irrelevant and "proper only in the unusual case in which the structure of the market has changed radically since the merger . . . 63 F. T. C. —, Market structure changes, rather than evidence of market behavior, were held to be the key to a § 7 analysis. In support of this position, the Commission noted that dependence on post-merger evidence would allow controls to be evaded by the dissimulation of market power during the period of observation. For example, Procter had been aware of the § 7 challenge almost from the date of the merger, and it would be unrealistic, so reasoned the Commission, to assume that market power would be used adversely to competition during the pendency of the proceeding. "The merger was consummated August 1, 1957. The Commission's complaint was filed on October 7, 1957. HARLAN, J., concurring. 386 U.S. The Commission also emphasized the difficulty of unscrambling a completed merger, and the need for businessmen to be able to make at least some predictions as to the legality of their actions when formulating future market plans. Cf. Bromley, Business' View of the du Pont-General Motors Decision, 46 Geo. L. J. 646, 653-654. Finally, the Commission pointed to the strain which would be placed upon its limited enforcement resources by a requirement to assemble large amounts of post-merger data. The Sixth Circuit was in disagreement with the second Commission's view. It held that “[a]ny relevant evidence must be considered in a Section 7 case. . . . The extent to which inquiry may be made into post-merger conditions may well depend on the facts of the case, and where the evidence is obtained it should not be ignored." 358 F. 2d, at 83. The court characterized as "pure conjecture" the finding that Procter's behavior might have been influenced by the pendency of the proceeding. Ibid. If § 7 is to serve the purposes Congress intended for it, we must, I think, stand with the Commission on this issue.10 Only by focusing on market structure can we begin to formulate standards which will allow the responsible agencies to give proper consideration to such mergers and allow businessmen to plan their actions with a fair degree of certainty. In the recent amendments to the Bank Merger Act, Congress has indicated its approval of rapid adjudication based on premerger conditions," 10 Cf. FTC v. Consolidated Foods Corp., 380 U. S. 592, where this Court held that even an extensive post-merger history, developed outside the influence of a §7 challenge, was not to be considered a conclusive negation of the possibility of anticompetitive effects. 11 The amendments to the Bank Merger Act (80 Stat. 7) require a merger to be challenged within 30 days of agency approval. This negates the possibility of substantial post-merger evidence. 12 U. S. C. § 1828 (c). It is noteworthy that Congress has required 568 HARLAN, J., concurring. and all agency decisions hinging on competitive effects must be made without benefit of post-combination results. The value of post-merger evidence seems more than offset by the difficulties encountered in obtaining it. And the post-merger evidence before us in this proceeding is at best inconclusive. Deciding that § 7 inquiry in conglomerate or productextension merger cases should be directed toward reasonably probable changes in market structure does not, however, determine how that inquiry should be narrowed and focused. The Commission and the Court isolate two separate structural elements, the degree of concentration in the existing market and the "condition of entry." The interplay of these two factors is said to determine the existence and extent of market power, since the "condition of entry" determines the limits potential competition places on the existing market. It must be noted, however, that economic theory teaches that potential competition will have no effect on the market behavior of existing firms unless present market power is sufficient to drive the market price to the point where entry would become a real possibility. So long as existing competi rapid adjudication and at the same time required a determination. more complex than that which must be made under the antitrust laws. In a Bank Merger Act case the defendants may seek to have the merger upheld because "the anticompetitive effects . . . are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served." 12 U. S. C. § 1828 (c)(5)(B) (1964 ed., Supp. II). 12 Thus Bain points out that in a competitive market where market price is presumed to be cost-based the threat of entry should not affect market price because each firm is presumed to make its pricing decisions without considering their impact on the market as a whole. Even in an oligopolistic market in which each seller must assume that its price actions will have marketwide effect, the threat of entry serves to limit market price only when the optimum return would be obtained at a price sufficient to induce entry. So long as the optimum price is below the entry-triggering price, the threat of entry has no real impact on the market. Commended for it. S DE HASSLE & this COS II Darken suurvure can we s un vel glow the respon TESTESILT To such mergers dim der actions with a fair sendments to the Jurat Cor is bested its approval IT TE Bum based on premerger conditions." *met Foods Corp. 380 C. 8. 592, where this La tensive post-merger history, developed ourage the mifnence if a 7 challenge, was not to be considered a Zuerst Depot of the possibility of anticompetitive effects -The amendment to the Bank Merger Act (80 8 a merger to be challenged within 30 days of sequoss the possibility of substat C. B. C. 1828 (e). It is not. and all agency decisions hinging on competitive effects Deciding that $7 inquiry in conglomerate or product- rapid adjudication and at the same time required a determination more complex than that which must be made under the antitrust laws. In a Bank Merger Act case the defendants may seek to have the merger upheld because "the anticompetitive effects... are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the comm nity to be served." 12 U. S. C. § 1828 (c)(5)(B) (1964 ed., S.; 12 Thus Bain points out that in a competitive market price is presumed to be cost-based the not affect market price because eat firma pricing decisions without erevidering as a whole. Even in a spons must assume that to pr the threat of t optimum r entry ม ve the comether >mpetigress had e efficient is of course mies enhances ects on competirse effects on comed States, supra, at |