HARLAN, J., concurring. 386 U.S. discover at what point advertising ceases to be an aspect of healthy competition. See Bork, Contrasts in Antitrust Theory: I, 65 Col. L. Rev. 401, 411, n. 11. It is not the Commission's function to decide which lawful elements of the "product" offered the consumer should be considered useful and which should be considered the symptoms of industrial "sickness." It is the consumer who must make that election through the exercise of his purchasing power. In my view, true efficiencies in the use of advertising must be considered in assessing economies in the marketing process, which as has been noted are factors in the sort of § 7 proceeding involved here. I do not think, however, that on the record presented Procter has shown any true efficiencies in advertising. Procter has merely shown that it is able to command equivalent resources at a lower dollar cost than other bleach producers. No peculiarly efficient marketing techniques have been demonstrated, nor does the record show that a smaller net advertising expenditure could be expected. Economies cannot be premised solely on dollar figures, lest accounting controversies dominate § 7 proceedings. Economies employed in defense of a merger must be shown in what economists label "real" terms, that is in terms of resources applied to the accomplishment of the objective. For this reason, the Commission, I think, was justified in discounting Procter's efficiency defense. For the reasons set forth in this opinion, I conclude that the Commission was justified in finding that the Procter-Clorox merger entails the reasonable probability of a substantial increase in barriers to entry and of enhancement in pricing power in the liquid bleach industry and that its order must be upheld. Appeals concluded, that Clorox employed superior quality controls. The evidence seemed to indicate that the regional and national brands were very similar, but that some local brands varied in strength. Syllabus. SPECHT v. PATTERSON, WARDEN, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 831. Argued March 21, 1967.— Petitioner was convicted of the crime of indecent liberties under a Colorado statute which provided a maximum sentence of 10 years but he was sentenced under the Sex Offenders Act for an indeterminate term of from one day to life imprisonment. The Act may be applied if the trial court believes that a person convicted of specified sex offenses "if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill." The requisite procedure, a complete psychiatric examination and a report thereof given to the trial judge before sentencing, was complied with in petitioner's case, but no hearing was held. The State Supreme Court approved the procedure, the Federal District Court dismissed a habeas corpus proceeding and the Court of Appeals affirmed. Held: The invocation of the Act, which entails the making of a new charge leading to criminal punishment, requires, under the Due Process Clause, that petitioner be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to crossexamine and to offer evidence of his own, and that there be findings adequate to make meaningful any appeal that is allowed. Williams v. New York, 337 U. S. 241, distinguished. Pp. 608-611. 357 F. 2d 325, reversed. Michael A. Williams, by appointment of the Court, 385 U. S. 997, argued the cause for petitioner. With him on the brief was Hugh A. Burns. John E. Bush, Assistant Attorney General of Colorado, argued the cause for respondents. With him on the brief were Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy Attorney General, and John P. Moore, Assistant Attorney General. Opinion of the Court. 386 U.S. MR. JUSTICE DOUGLAS delivered the opinion of the Court. We held in Williams v. New York, 337 U. S. 241, that the Due Process Clause of the Fourteenth Amendment did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed. We said: "Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues." Id., 249-250. That was a case where at the end of the trial and in the same proceeding the fixing of the penalty for first degree murder was involved-whether life imprisonment or death. The question is whether the rule of the Williams case applies to this Colorado case where petitioner, having been convicted for indecent liberties under one Colorado statute that carries a maximum sentence of 10 years (Colo. Rev. Stat. Ann. § 40-2-32 (1963)) but not sentenced under it, may be sentenced under the Sex Offenders Act, Colo. Rev. Stat. Ann. §§ 39-19-1 to 10 (1963), for an indeterminate term of from one day to life without notice and full hearing. The Colorado Supreme Court approved the procedure, when it was challenged by habeas corpus (153 Colo. 235, 385 P. 2d 423) and on motion to set aside the judgment. 156 Colo. 12, 396 P. 2d 838. This federal habeas corpus proceeding resulted, the Court of Appeals affirming dismissal of the writ, 357 F. 2d 325. The case is here on a petition for certiorari, 385 U. S. 968. The Sex Offenders Act may be brought into play if the trial court "is of the opinion that any . . . person [convicted of specified sex offenses], if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill." § 1. He then becomes punishable for an indeterminate term of from one day to life on the following conditions as specified in § 2: "(2) A complete psychiatric examination shall have been made of him by the psychiatrists of the Colorado psychopathic hospital or by psychiatrists designated by the district court; and "(3) A complete written report thereof submitted to the district court. Such report shall contain all facts and findings, together with recommendations. as to whether or not the person is treatable under the provisions of this article; whether or not the person should be committed to the Colorado state Opinion of the Court. 386 U.S. hospital or to the state home and training schools as mentally ill or mentally deficient. Such report shall also contain the psychiatrist's opinion as to whether or not the person could be adequately supervised on probation." This procedure was followed in petitioner's case; he was examined as required and a psychiatric report prepared and given to the trial judge prior to the sentencing. But there was no hearing in the normal sense, no right of confrontation and so on. Petitioner insists that this procedure does not satisfy due process because it allows the critical finding to be made under § 1 of the Sex Offenders Act (1) without a hearing at which the person so convicted may confront and cross-examine adverse witnesses and present evidence of his own by use of compulsory process, if necessary; and (2) on the basis of hearsay evidence to which the person involved is not allowed access. We adhere to Williams v. New York, supra; but we decline the invitation to extend it to this radically different situation. These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U. S. 107, and to the Due Process Clause. We hold that the requirements of due process were not satisfied here. The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact (Vanderhoof v. People, 152 Colo. 147, 149, 380 P. 2d 903, 904) that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed |