The opinion of the court was delivered by: MACMAHON
The government, claiming violation of Section 7 of the Clayton Act
and Section 1 of the Sherman Act,
seeks equitable relief undoing a merger of Manufacturers Trust Company and The Hanover Bank which resulted in the creation of defendant, Manufacturers Hanover Trust Company.
The merger has now been in effect for more than three years. It was consummated on September 8, 1961, shortly before this suit was filed,
following prior approval of the New York Superintendent of Banks, as required by the New York Banking Law,
and of the Board of Governors of the Federal Reserve System, as required by the federal Bank Merger Act.
Both the state and federal statutes require the respective banking agencies to consider not merely banking factors and the overall public interest before approving a merger but also the effect of the transaction on competition, including any tendency toward monopoly.
Both agencies approved this merger, without adversary hearings, but after consideration of documentary evidence, statistical data, investigation, and, in the case of the Board, the reports of the Attorney General, the Federal Deposit Insurance Corporation (F.D.I.C.), and the Comptroller of the Currency, and interrogation of officers of the merging banks relative to the merger's competitive effect. The Superintendent concluded, after thorough analysis of relevant data, that the merger 'would not result in a concentration of assets beyond limits consistent with effective competition. The proposed merger would not result in such a lessening of competition as to be in jurious to the interest of the public, nor in such a lessening of competition as to tend toward monopoly.' The Board, despite objection on antitrust grounds interposed by the Attorney General, concluded, with the concurrence of the Comptroller of the Currency, that the merger would have no adverse competitive effect but 'would tend to stimulate competition without significantly affecting the number or competitive strength of alternative sources of banking services.' The F.D.I.C. found the pro and anti competitive effects of the merger so in balance that it based its approval on banking factors and the public interest.
The government makes no claim that the agencies relied on incorrect or misapplied the statutory standards under which they operate. It does not seek to review their decisions. Rather, it invokes original jurisdiction of this court under the antitrust laws
asking us to destroy a merger which the banking agencies validated. The government contends that the merger is a combination in unreasonable restraint of trade, violative of Section 1 of the Sherman Act, and that its effect 'may be substantially to lessen competition or to tend to create a monopoly,' violative of Section 7 of the Clayton Act.
We state at the outset that there is no evidence of predatory conduct, anticompetitive behavior or motive, conspiracy, price-fixing, or any other intentional injury to competitors or to the public either by the constitutent banks, the resulting bank, or any of its largest competitors. The government asserts, however, that an inference of the proscribed anticompetitive effect in commercial banking in the City of New York, the metropolitan area, and the United States is compelled by market structure, specifically, the size of the constitutent banks, the permanent elimination of Hanover as a separate competitor, the resulting bank's size and its share of the relevant markets, a history of mergers and a trend toward concentration, and the increase in concentration caused and threatened by the merger.
Defendant contends that the facts give rise to no anticompetitive inference in the relevant markets and that the government has failed to prove its case. It argues that the government inflates its relative size by commingling the local and national markets, that mere size is not an offense, that mergers of competitors are not per se unlawful, that the merger has not eliminated significant competition, that the resulting bank does not control an undue share of the relevant markets, that concentration has not been unduly increased, and that customers are well served by numerous, strong and vigorous competitors, both locally and nationally.
JURISDICTION -- THE EFFECT OF AGENCY APPROVAL
Defendant, caught in a cross fire, originally challenged the court's jurisdiction over the subject matter. A similar argument was made unsuccessfully in the district court, but abandoned on appeal, in United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 350 n. 26, 83 S. Ct. 1715, 10 L. Ed. 2d 915 (1963). As a result, it was briefed but not argued on appeal by the government, and neither briefed nor argued by the banks. Nevertheless, it was considered but rejected by the Supreme Court. We are bound, therefore, to reject it here, whatever its merit.
Defendant does not press the point.
Instead, it urges that we should regard the opinions of the impartial banking agencies as extremely persuasive evidence. It points to the government's failure to produce any material evidence here which was not before, or within the knowledge of, the banking agencies, to the similarity of the statutory standards governing the agencies' consideration of the competitive factor to those of the antitrust laws, and to the agencies' application of antitrust principles in their analyses of the competitive effect of the merger.
The government, however, relying on Philadelphia, contends that we must judge the validity of the merger under a different standard from that governing the banking agencies and are bound, therefore, to assess its competitive effect on the basis of established antitrust principles, independent of the opinions of the banking agencies. In support of its position, the government asserts that the Bank Merger Act does not authorize the Federal Reserve Board to decide antitrust questions as such, United States v. Radio Corp. of America, 358 U.S. 334, 79 S. Ct. 457, 3 L. Ed. 2d 354 (1959), and stresses the Board's required consideration of public interest factors, irrelevant to the antitrust laws, and the lack of adversary hearings.
In view of the Supreme Court's decisions in United States v. Philadelphia Nat'l Bank, supra, and in United States v. First Nat'l Bank & Trust Co. of Lexington, 376 U.S. 665, 84 S. Ct. 1033, 12 L. Ed. 2d 1 (1964), there is no longer any question that the Clayton and Sherman Acts apply to bank mergers and that the Bank Merger Act neither impairs the plenary jurisdiction of this court to adjudicate their validity, nor immunizes them from collateral attack here despite agency approval. It does not follow, however, that the court should ignore agency views.
In United States v. Philadelphia Nat'l Bank, supra, the Supreme Court rejected an argument that the doctrine of primary jurisdiction should be applied to the Comptroller's approval of that merger under the Bank Merger Act. We think, however, that there are facts here, not present in Philadelphia, which, with all respect, call for a contrary holding and ad hoc application of the doctrine of primary jurisdiction to the claim made under Section 7 of the Clayton Act.
This merger was effected by an acquisition of assets. There can be no question since Philadelphia that Section 7 of the Clayton Act has always applied to such bank mergers. Philadelphia and Lexington also make clear, as the government puts it, 'that the Bank Merger Act of 1960 does not in any way diminish the full thrust of the Sherman and Clayton Acts in bank merger cases.'
An integral and vital part of the 'full thrust' of the Clayton Act is Section 11, 15 U.S.C. § 21 (1958), which unequivocally vests 'authority to enforce compliance' with Section 7 'in the Federal Reserve Board where applicable to banks.' That statute has never been repealed by Congress notwithstanding its amendment of Section 7 in 1950. Referring to it in a footnote in Philadelphia, 374 U.S. at 344-345 n. 22, 83 S. Ct. 1731, the Supreme Court said:
'* * * The Bank Merger Act of 1960, assigning roles in merger applications to the FDIC and the Comptroller of the Currency as well as to the FRB, plainly supplanted, we think, whatever authority the FRB may have acquired under § 11, by virtue of the amendment of § 7, to enforce § 7 against bank mergers.'
Whatever validity pro tanto repeal of Section 11 by implication may have had in Philadelphia, we think there is neither reason, nor basis, for such drastic surgery here. Repeal by implication on the facts in this case would be a radical departure from settled precedents.
We have been taught by a long line of decisions, including Philadelphia, that of all the instruments for accommodation of regulatory statutes to the antitrust laws, pro tanto repeal of the antitrust laws by implication is the very last that ought to be employed. Indeed, we have been urged to strain the doctrine of primary jurisdiction, if necessary, to avoid such a result. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 320-321, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963) (Brennan, J., dissenting) (and cases cited therein).
In United States v. Borden Co., 308 U.S. 188, 197-206, 60 S. Ct. 182, 84 L. Ed. 181 (1939), the Court emphasized that where a later regulatory statute, such as the Bank Merger Act, shares common ground with the antitrust laws, we should not resort to repeal of the antitrust laws by implication unless there is 'a positive repugnancy' and then only to the extent of the repugnancy. There is no need to labor the point; its roots go deep.
There is no repugnancy, positive or otherwise, between the Bank Merger Act and Clayton § 11 in their application to the facts of this case. That is why, with deference, the Supreme Court's refusal to apply the doctrine of primary jurisdiction in Philadelphia is not controlling here.
In Philadelphia, pro tanto repeal of Clayton § 11 by implication was grounded on a positive repugnancy resulting from the fact that the Bank Merger Act mandated sole authority to approve that particular merger to the Comptroller of the Currency. Such authority in the Comptroller is clearly repugnant to the Federal Reserve Board's sole authority under Clayton § 11 to enforce compliance with § 7. In this case, however, because the banks involved are state banks, the Bank Merger Act vests sole authority to approve the merger in the Federal Reserve Board (12 U.S.C. § 1828(c)(3)(ii)). Advisory roles only are assigned to the F.D.I.C., the Comptroller of the Currency, and the Attorney General, and the Board is in no way bound by their reports.
Clearly there is no repugnancy between sole power in the Board under the Bank Merger Act to prohibit or approve a merger in advance of its consummation, and its power under Clayton § 11 to enjoin or acquiesce in its consummation. Quite the contrary. Power under the Bank Merger Act to destroy the seed before it sprouts is perfectly consistent with power under Clayton §§ 11 and 7 to nip incipient restraints and monopolies 'in the bud' or order divestiture. See Transamerica Corp. v. Board of Governors, 206 F.2d 163, 166, 169 (3 Cir.), cert. denied, 346 U.S. 901, 74 S. Ct. 225, 98 L. Ed. 401 (1953).
Every single reason upon which Philadelphia predicates its holding that the Bank Merger Act did not repeal Clayton § 7 by implication applies here with even greater force to Clayton § 11.
Clayton § 11 suffers from none of the infirmities of the impotent Bank Merger Act. It grants express authority to the Board to enforce compliance with Section § 7 and provides for hearings, intervention by the Attorney General, findings of fact, and appeal to the Court of Appeals. Authority to enforce compliance empowers the Board to decide antitrust issues as such, to enlist the injunctive aid of the courts, Board of Governors v. Transamerica Corp., 184 F.2d 311 (9 Cir. 1950); contra, FTC v. International Paper Co., 241 F.2d 372 (2 Cir. 1956), or to fashion appropriate relief, including divestiture, by its own decree, Clayton Act § 11, 15 U.S.C. § 21(b) (Supp. V, 1964); Pan American World Airways, Inc. v. United States, supra, 371 U.S. at 312-313 nn. 17 & 18, 83 S. Ct. 476. We see no conceivable reason on the facts of this case for repealing by implication this comprehensive legislative plan for Board enforcement of Section 7. We hold, therefore, that Clayton § 11 applies to this case.
The Clayton Act, however, contains a scheme of dual enforcement.
United States v. W. T. Grant Co., 345 U.S. 629, 631, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). The Board's jurisdiction to enforce Section 7 'where applicable to banks' is, therefore, not exclusive but concurrent with the district court's jurisdiction under Section 15 of the Clayton Act, 15 U.S.C. § 25 (1958). It seems obvious that Congress intended that the technical and complex problems involved in the application of Clayton § 7 to the banking industry should be resolved, at least in the first instance, by a body of experts who know the competitive realities of the banking business. Indeed, the legislative histories of both Clayton §11 and the Bank Merger Act
are replete with that very theme.
We think that if ever there were a field requiring administrative expertise to unravel the tangled threads of the evidence and weave them into a meaningful fabric, this is it. This case involves a multitude of technical, intricate and complex problems in the field of money and banking, a subject within the special competence of the Board and outside the conventional experience of judges.
The Board is intimately familiar with this technical subject matter, as well as the competitive realities involved, from its long experience as the administrator of the nation's banking system, periodic reports, examinations, studies, etc. It knows the relevant products; the parties to this merger and the pattern of their business; the extent, locus and significance of previous competition between them; the number, strength and pattern of business of remaining competitors and the vigor of competition, both locally and nationally; the banking habits of all customers, great and small; their practicable banking alternatives; the geographic areas of effective competition for their banking business; the history, interrelationships and trends of the geographic markets; the probable impact of the merger on depositors, borrowers and competitors, great and small, local and national; the degree of concentration, locally and nationally; the reasons for concentration and its effect on the competitive picture; the operations of the nation's money markets; and the effect of the government's monetary and fiscal operations on the markets and the impact of this merger upon them.
The fact that the banking agencies know the banking business undoubtedly explains why the evidence before us, which was largely prepared for the agencies, contains so little to acquaint us with the industry. As we shall see, the record is inadequate to the point that there is no direct evidence as to the market shares of the banks involved or any of their competitors in either of the relevant geographic markets. We have been obliged, therefore, to resort to circumstantial evidence, with all its imperfections, at many vital points in order to decide this case. We have also been compelled to dredge through reference material and take judicial notice of essential information which the Board knows, or could gather, out of hand.
Much of the evidence consists of stale statistics and studies prepared for other purposes by the Board or other banking agencies. Often, the only information available is many years old and is a precarious basis for decision in this rapidly changing world. Many statistical facts which we need are either wholly lacking or so scrambled as to be useless. The Board has the staff and facilities to obtain the missing pieces of the puzzle and to organize the swamp of statistics into a meaningful pattern. Our tedious efforts, at best, have left distressing gaps in pertinent information. These considerations, we think, cry out loud for application of the doctrine of primary jurisdiction.
Whitney Nat'l Bank v. Bank of New Orleans, 379 U.S. 411, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965).
Ordinarily, application of the doctrine of primary jurisdiction would require either dismissal of the action, thereby relegating the parties to the Board and the Court of Appeals, or suspension of the judicial process pending referral of the issue to the Board for its views. Far East Conference v. United States, 342 U.S. 570, 576, 72 S. Ct. 492, 96 L. Ed. 576 (1952). We think, however, that resort to either course at this stage of the litigation would be little short of ridiculous.
There are compelling practical reasons for refusing to shuttle this case back and forth between court and agency and for meeting the problem in a different and novel way. The litigation has already been prolonged awaiting the outcome of the Philadelphia and Lexington cases, the presentation of additional evidence, revised findings, briefs, and this court's labors.
All the evidence which the parties have desired to present is now before us, and to relegate the matter to the Board for still further proceedings would greatly increase the length and cost of the litigation, exhaust the litigants, delay ultimate determination, serve no useful purpose, and defeat the ends of justice. The court must decide the Sherman Act claim in any event, and, since it poses issues requiring much the same analysis and consideration as those under the Clayton Act, the economies of judicial administration demand decision of both claims now. Finally referral to the Board would be an idle gesture imposing needless duplication of effort for, although the Board's opinion is short on factual analysis and not of much help to the court, we already have the benefit of its ultimate conclusion which was based on facts set forth in the application to merge or otherwise within its knowledge. The Board also had the benefit of the thorough analysis of the New York Superintendent of Banks and the F.D.I.C.
The doctrine of primary jurisdiction is flexible, and we should shape it and, if necessary, strain it to fit the peculiar posture of this case in order to reach a practical accommodation of court and agency. The Board approved this merger long before the Philadelphia decision. It never invoked jurisdiction under Clayton § 11 for it was undoubtedly laboring under the common mistake that Clayton § 7 did not apply to bank mergers effected by an acquisition of assets.
Although the Board failed to make helpful findings of fact, there is no reason to suppose that its views about the competitive effect of this merger would have been any different from what they were under the Bank Merger Act if it had predicted the outcome of Philadelphia and invoked jurisdiction over this merger under Clayton § 11. This follows, first, from the fact that the evidence is largely undisputed and there is little material evidence here which was not before, or within the knowledge of, the Board when it approved this merger under the Bank Merger Act, and, second, from the fact that the norm for assessing the competitive effect of a merger under that Act is substantively indistinguishable from that laid down in the antitrust laws.
We do not understand what sort of issues bear on the effect of a merger on competition, including any tendency toward monopoly, unless they be antitrust issues. Nor does the government offer any suggestions, although pressed to do so on oral argument. A clearer or more comprehensive grant of power to consider antitrust questions is difficult to conceive. Language far less specific (unfair competition) passed muster in Pan American World Airways, Inc. v. United States, supra 371 U.S. at 306-307, 83 S. Ct. 476.
Plainly, the Board is required to consider all the ramified competitive effects of a merger on competition. Necessarily, that broad authority requires consideration of the narrower question of whether, in any line of commerce in any section of the country, the effect of a particular bank merger may be a combination in restraint of trade, or a monopoly,
or a substantial lessening of competition, or to tend to create a monopoly.
We think it too clear for argument that such rudimentary questions lie at the threshold of the most cursory consideration of 'the effect of the transaction on competition, including any tendency toward monopoly.' That this is so is further apparent on the face of the statute from its mandatory requirement that, in the interest of uniform standards, before approving a merger, the Board 'shall request' a report on 'the competitive factors involved' from the Attorney General, as well as the other two bank supervisory agencies. There is no point whatever in requiring such a report from the Attorney General unless it be to insure that his special competence on antitrust questions as such, particularly the impact of the Sherman and Clayton Acts on the proposed merger, is brought to bear on the Board's consideration of its competitive effect.
This is evident on the face of the report of the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, submitted to the Board in this very case.
As we shall see, his report was superficial and permeated with erroneous assumptions of fact as well as errors of law. It cannot be gainsaid, however, that it purported to be an opinion on antitrust questions as such. Thus, the ultimate antitrust issues raised here were component ingredients of the competitive factors which the Board was required to, and did, consider and decide in approving the merger.
It is absurd to suppose that Congress intended merely to burden the Board with vain contemplation. Rather, we must assume that Congress had some meaningful purpose, when it enacted a specific statute like the Bank Merger Act, of sole application to particular transactions in a single industry. That purpose, on the face of the statute, was to grant the agencies broad authority not only to weigh and consider all the antitrust questions involved, but also to make a meaningful judgment about them, along with the banking factors, as essential components of the ultimate standard of public interest. Thus, the Bank Merger Act, to the extent that it deals with competitive factors involved in a merger per se, shares common ground with the Sherman and Clayton Acts. The Acts differ, however, in at least two important respects:
First, the sole standard for determining the validity of a merger under the Sherman and Clayton Acts is the actual or potential anticompetitive effect, while under the Bank Merger Act, the overall public interest, and not the anticompetitive effect, is the governing criterion. Thus, the Bank Merger Act would appear to sanction agency approval of a merger, even though it violated the antitrust laws, if, on a balance of all the designated factors, the agency decided that, nevertheless, it was in the overall public interest.
A court, however, would be obliged to invalidate a merger found to violate the antitrust laws even though it served the public interest.
The difference in controlling standards, the lack of a pervasive regulatory scheme, the absence of an express exemption from, or repeal of, the antitrust laws, and the failure of the Act to provide for adversary hearings led the Supreme Court in Philadelphia to the conclusion that, since repeals by implication are not favored, neither the Bank Merger Act, nor agency approval of a merger, immunized the merger from challenge under the antitrust laws. United States v. Philadelphia Nat'l Bank, supra 374 U.S. at 351, 83 S. Ct. 1715; California v. FPC, 369 U.S. 482, 82 S. Ct. 901, 8 L. Ed. 2d 54 (1962); United States v. Radio Corp. of America, supra.
We think that the lack of adversary hearings in this case is of no practical significance because the material evidentiary facts were before the Board, and they were, and still are, largely undisputed. Thus, there was nothing to hear but argument, and the Attorney General provided that in his written report.
Nor is it of any moment that the Bank Merger Act fails to state what weight shall be given to the competitive factor, for that argument is germane only if the agency finds a merger anticompetitive but approves it anyway because of favorable banking factors, which was not the situation here.
Second, the Sherman and Clayton Acts do not prohibit mergers outright but forbid only those having a specified anticompetitive effect, and neither Act contains any provision for prior approval, while the Bank Merger Act unqualifiedly prohibits all mergers between insured banks without prior written consent of the designated bank supervisory agency. This difference is not discussed in Philadelphia, but it is important to the question of what weight we should give to Board approval of this merger. The obvious purpose of such a provision was to plug a hole in Clayton § 720a to the end that anticompetitive mergers would be blocked in their incipiency and to enable customers, businessmen, and the community to place confidence in the lawfulness and stability of approved mergers. Cf. United States v. Philadelphia Nat'l Bank, supra, 374 U.S. at 362, 83 S. Ct. 1715.
The legislative history shows that Congress was mindful that, in essence, commercial banks, unlike industrial corporations, are akin to fiduciaries entrusted with depositors' money. After all, the Bank Merger Act is part of the Federal Deposit Insurance Act and partakes of its purpose to safeguard depositors from loss and rival banks from failure which might result if a merger threatened destructive competition. Nor should we ignore the Board's interest, as the nation's monetary manager, in preserving vigorous competition and ample banking alternatives to insure that credit is neither too scarce, nor too hard to get, nor too dear. The competitive effect of this merger, therefore, was, and will continue to be, of vital concern to the Board.
Plainly, Congress sought to minimize, if not to remove, the hazards, vagaries, burdens, and penalties which might be visited upon depositors, business, and the community if an approved bank merger were later found by a court to be illegal under the antitrust laws. It recognized that the unscrambling complexities inherent in divestiture, troublesome enough in other industries, might well wreak havoc upon a bank, with incalculable harm to depositors, borrowers, and the public weal.
Indeed, those considerations were the theme of the government's tardy application for a temporary restraining order in this very case.
We think all of the foregoing considerations compel us to heed the views of the Board. ,'after all, these anti-trust problems are largely factual and their true solution depends in the last analysis upon an intimate familiarity with the characteristic features of a particular industry in which these problems arise.' United States v. Morgan, 118 F.Supp. 621, 699 (S.D.N.Y.1953). It seems obvious, therefore, that we should treat the Board's views as though they had been rendered under Clayton § 11.
We do not stop to inquire whether our function is, therefore, limited to review. Rather, because Clayton § 11 itself provides that no order of the Board confers immunity under the antitrust laws, the decision in Philadelphia, our plenary jurisdiction, and the novel posture of this case, we will accept the agencies' views about banking facts, including the nature of the business of the constituent banks, the existence and locus of effective competition for all types of accounts, and the practicable banking alternatives of particular classes of customers as persuasive and helpful evidence in our analysis of the competitive effect of this merger, International Shoe Co. v. FTC, 280 U.S. 291, 299, 50 S. Ct. 89, 74 L. Ed. 431 (1930), but the agencies' conclusions of law on antitrust questions as such, including the competitive effect of this merger, are not binding upon us in our independent application of the antitrust laws. United States v. Philadelphia Nat'l Bank, supra, 374 U.S. at 367, 83 S. Ct. 1715; United States v. Morgan, supra, 118 F.Supp. at 699; 7 Wigmore, Evidence § 1918, at 10, § 1952, at 81 (3d ed. 1940). Anything less would turn the Bank Merger Act into a trap so repugnant to fundamental fairness that it would make a mockery of a court of equity. The principal reasons for the doctrine of primary jurisdiction are the need for expertise and orderly and sensible coordination of agency and court. See 3 Davis, Administrative Law § 19.01 (1958).
We find nothing in Philadelphia requiring us to disregard the Board's views. On the contrary, the Supreme Court took pains to note that its holding did not deprive the Bank Merger Act of its intended force or thwart its objectives, 374 U.S. at 354, 83 S. Ct. 1715 and, indeed, in its own analysis of the antitrust questions presented, found help in the views of the banking agencies, 374 U.S. at 361, 83 S. Ct. 1715. We recognize, however, that in leaving bank mergers subject to the antitrust laws, Congress intended that their validity should be definitively judged, not by the banking agencies, however expert in the banking field, but by judges presumably skilled in antitrust adjudication. We turn to that task.
THE FOUNDATION FOR ANALYSIS OF THE COMPETITIVE EFFECT OF THE MERGER UNDER THE ANTITRUST LAWS.
The ultimate question under Sherman § 1 is whether the merger constitutes a combination in unreasonable restraint of trade. United States v. First Nat'l Bank & Trust Co. of Lexington, supra; United States v. Columbia Steel Co., 334 U.S. 495, 522, 68 S. Ct. 1107, 92 L. Ed. 1533 (1948); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). The question under Clayton § 7 is whether the effect of the merger may be substantially to lessen competition or to tend to create a monopoly in the relevant market. United States v. Philadelphia Nat'l Bank, supra, 374 U.S. at 362, 83 S. Ct. 1715.
As the Supreme Court noted in United States v. Philadelphia Nat'l Bank, supra, these are not the kind of questions which are 'susceptible of a ready and precise answer.' They require 'not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future. * * * Such a prediction is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive.' 374 U.S. at 362, 83 S. Ct. 1741. Obviously the structure of the relevant market and the competitive effect of a given merger vary with the setting and unique facts of each case. Brown Shoe Co. v. United States, 370 U.S. 294, 322 n. 38, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962). As we shall see, the market facts here are so different from those in Philadelphia and other recent merger decisions of the Supreme Court under Clayton § 7 that those cases do not supply 'a ready and precise answer' to the questions raised in this one.
The primary problem in ascertaining market structure under either the Sherman or Clayton Acts is definition of the product (relevant product or services market) and 'section of the country' (relevant geographic market) in which to appraise the actual or probable competitive effect of the merger. United States v. First Nat'l Bank & Trust Co. of Lexington, supra; United States v. Philadelphia Nat'l Bank, supra; United States v. E.I. Du Pont De Nemours & Co., supra; United States v. Columbia Steel Co., supra.
The structure of the relevant market, like the structure of anything else, starts with a foundation. Commercial banks provide a broad range of services built upon the needs of their customers. Those needs -- from the smallest deposit to the largest loan -- are created by, and vary with, the forces of the underlying economy.
This case centers on the merger of two New York Banks. A realistic grasp of the economy of metropolitan New York and its links with the rest of the nation and the world is essential to understand the commercial banking structure built upon it, define the relevant product and geographic markets, and view the competitive picture in true perspective.
Commercial banking in metropolitan New York is built upon a massive economic foundation. New York has long been the largest city in the nation and is now the third largest in the world.
It has a cosmopolitan population of almost 8,000,000,
another 7,000,000 live on its perimeter, and a fourth of the nation within a 250-mile radius.
It is the nation's largest center of finance, trade, manufacture, and commerce. It is the world's largest consumer market. Its port is the most active in the world; each year 26,000 ships, one every twenty-two minutes, enter or leave carrying an estimated $ 9 billion worth of cargo, or two-fifths by dollar volume, of the maritime trade of the country.
The two major metropolitan air terminals annually serve 13,000,000 passengers, handle 800,000 aircraft arrivals and departures, and contribute $ 66 million in customs duties.
The city is headquarters for nearly 2,000 businesses, each with a net worth of $ 1 million or more, including 135 of the country's 500 largest industrial corporations and 11 of the 50 largest utilities.
Moreover, a vast majority of the remaining industrial leaders, both foreign and domestic, maintain New York offices,
and it is home to more trade and business associations than any other American city.
A significant complement of this managerial density is that New York is the nation's largest financial center. It houses the largest of the nation's twelve regional Reserve banks, six of the nation's ten largest commercial banks, and five of the ten largest insurance companies.
Its two stock exchanges trade an annual volume of well above $ 1.5 billion and account for 93% Of all securities traded. Expressed in dollars, their volume is overwhelming, no less than $ 61 billion in 1961.
The city's cotton and commodity exchanges, for the same period, acted as clearing houses for $ 2.2 billion in cotton, wool, rubber, hides, copper, lead, and zinc.
The city, when examined from the standpoint of its indigenous economic activity, is once again the national champion. The five boroughs contain North America's most expansive and diversified manufacturing community, housing some 35,000 plants engaged in 326 different lines of manufacture.
These firms, although most are small by contemporary standards (two-thirds in the 1 to 19 employee category), provide work for almost 900,000 persons. The number so employed is 68% Greater than those similarly employed in Chicago and more than three times that in Los Angeles, the next two leading manufacturing cities.
The product of their labor is over $ 7.5 billion each year, and their payroll of over $ 4 billion rivals the entire foreign aid expenditure.
The gross personal income to residents per annum is $ 24 billion,
or 6% Of the national total.
It is the hub of the wealthiest metropolitan area in the country in terms of personal income. In 1961, the total income of individuals in the metropolitan area was $ 36.79 billion.
This partially explains why the city's nearly 90,000 retail establishments ring up almost $ 10 billion in sales annually, exceeding the combined total for Chicago, Philadelphia, and Boston.
Yet the sales for the city's 29,000 wholesale establishments are even greater, amounting to over $ 45 billion.
New York is thus the chief market for the nation's consumer and industrial goods.
The city also boasts a service industry doing a volume of $ 5.3 billion annually, three times that of its closest competitor, and larger than that of any state other than New York.
Each year, the city plays host to some 14,000,000 visitors, on business or pleasure, who add $ 1 billion to the city's sales and services.
It is not surprising that the business of managing New York's affairs requires a governmental staff second only in size to that of the United States itself and an expense budget of over.$ 2.7 billion.
The city has long since outgrown its political boundaries and expanded into contiguous counties. Adjoining Nassau and Westchester counties are fused to the city. They are virtually a continuation of its factories, stores, apartment houses, and private residences, and with the city constitute a single economic and trading area. Both counties are densely populated, heavily developed, and rapidly growing, largely at the expense of the city. Middle income families have moved into them from the city and have been replaced by families living on a lower, and often subsidized, economic scale.
Nassau and Westchester now have a population of 1,300,171 and 808,891, respectively, which combined exceeds that of Philadelphia, the fourth largest city in the country.
Their combined gross personal income of $ 8.049 billion is greater per capita than that of any state in the Union.
Despite the massive scale of the economy of the New York metropolitan area, for the past twenty years the city proper has lagged behind the growth of the rest of the country and the suburban counties. Postwar expansion and decentralization of industry, population growth and shifts, the rise and change in the distribution of wealth and income, and the concomitant growth of other trade and financial centers have made heavy inroads in the economic pre-eminence of the metropolitan area.
We think it plain from this glimpse of the size, variety, complexity, pace, and diverse geographical structure of the relevant economy that its elaborate processes would collapse overnight without financial institutions equal to its needs.
B. The Financial Industry
It is written that the cornerstone of New York's economic structure was laid over three centuries ago, in 1627, by Peter Minuit when he bartered a few trinkets for all of Manhattan. After that, perhaps because the bargain was transparently suspect, men have used more subtle media of exchange, and money in one form or another has ever since been the lifeblood of the immense economy of the metropolitan area.
History and the community's expanding commerce with the rest of a developing nation and the world have made New York a national and international financial center. Many of the nation's giant financial institutions are located in New York because they had the advantage of an early start and gained momentum with the economic growth of the metropolitan area, the country, and the world.
Billions of dollars must move from buyer to seller, from exporter to importer, from lender to borrower, from depositor to banker, or back again, every day.
Money must be found in enormous quantities to meet the daily needs of millions of individuals, countless small firms, giant nationwide corporations, governmental bodies, banks, other financial institutions, and a myriad of brokers, dealers, merchants, and industrialists who operate in or through New York's great markets. It takes money in enormous quantities to meet the payrolls of thousands of small business firms and hundreds of giant corporations, pay dividends, finance skyscrapers, pay for cargoes arriving every day from all over the world, carry countless commercial, industrial, and consumer loans, float million dollar blocks of corporate securities, or buy a billion dollars of government obligations in a single day.
The money essential to the smooth workings of this complex and widespread commerce is provided by highly specialized financial institutions, insurance companies, savings and commercial banks, finance companies, factors, investment bankers, pension funds, credit unions, and personal loan companies. All play roles often interrelated, overlapping, and competitive. The volume of business is so great and the pace of transactions so swift that money in the form of coin and currency, like Peter Minuit's trinkets before it, is almost outmoded as a medium of exchange. It has been replaced by a more convenient, simpler, safer, and swifter medium capable of keeping pace with the dizzying velocity of transactions. Today's medium of exchange is checkbook money. It constitutes 80% Of the national money supply.
Providing it in huge quantities is the unique job of commercial banks.
C. Commercial Banking, Generally
Fundamentally, commercial banking is an endless cycle of borrowing and lending. Commercial banks are department stores of finance. They do their borrowing and lending in a variety of forms.
Not all commercial banks offer a full range of services. Smaller banks, because of lower lending limits and lack of large and specialized staffs, tend to concentrate on the local needs of local individuals and small businesses. Conversely, some large banks, with greater lending limits, specialization, and organization, focus on the nationwide needs of large corporations. Others deal in large and small units with customers standing in a broad economic spectrum.
Commercial banks, large or small, are the only financial institutions authorized by law to accept demand deposits subject to check. This unique power enables them to create money
and sets them apart from savings banks and other financial institutions. They, therefore, act as reservoirs gathering, expanding, supplying, and, with the help of the Federal Reserve System, clearing checkbook money in huge amounts to meet the economic needs of the community and the country.
When a bank accepts a demand deposit, it borrows money without interest
which it pumps back into the economy by honoring the depositor's checks and making loans. The cycle is repeated over and over through the banking system and makes commercial banks the intermediaries in most financial transactions. The importance of this function is evidenced by the fact that in 1958 Americans had 52,000,000 checking accounts, with a total of $ 110 billion on deposit with commercial banks, and paid an estimated 90% Of their bills by check.
The second most important function of commercial banks is supplying short-term credit to individuals, business entities, and the government. Thus, in 1961 commercial banks throughout the country carried a total of about $ 118 billion in loans.
In practice, loans are usually credited to the borrower's account and, therefore, generate corresponding, but volatile, demand deposits.
Commercial banking is subject to comprehensive regulation, state and federal. Entry into the business, branching, and merging are controlled to preserve sound banking, protect depositors, and foster strong, but prevent destructive, competition.
Maximum interest rates, with some exceptions, are fixed by state usury laws,
and minimum (prime) rates indirectly by the Federal Reserve's regulation of the money supply.
Interest on demand deposits is prohibited, and it is regulated on time and savings deposits.
Some service charges are free of regulation. Banks are required to submit periodic reports to state and federal banking agencies,
submit to examinations whenever the banking authorities deem it necessary,
and, if unsound or unsafe practices are found, their charters are subject to summary suspension and even termination.
Within these limits, banks are free to set or negotiate the terms and conditions of deposits and loans in competition with their rivals. It is clear, however, that absolute competition in the banking industry is not only inconsistent with, but also in many respects prohibited by, regulatory laws.
D. Commercial Banking in the Metropolitan Area.
The commercial banking structure of any community mirrors the size, complexity, geographic relationships, tempo, and characteristics of the underlying economy. It is not surprising, therefore, that the size, volume, complexity, variety, tempo, and geographic dispersion of the transactions flowing through commercial banks in the metropolitan area dwarfs that of other communities.
It is hard to realize the immense scale of operations. It is starkly revealed, however, in the fact that 607,000,000 checks worth $ 624 billion were handled by the New York Federal Reserve Bank in 1958, and on a typical day $ 2 billion worth of checks cleared through the New York Clearing House, giving New York a volume greater than that of the next 23 largest cities combined.
Part of the flow is generated by the local needs of millions of individuals and thousands of business firms, another part by transactions between outsiders and insiders, still other parts by outsiders and insiders buying and selling through New York's stock and commodity exchanges, by nationwide corporations borrowing, receiving, or disbursing funds, by the Treasury's gathering funds from its borrowings or taxes, or disbursing them from its account at the Federal Reserve banks, by outside banks shifting funds into and out of New York in response to customers' needs or money market pressures, and, finally, by the movement of funds in and out of the area from abroad.
Thus, billions of collars move in and around, and in and out of, the metropolitan area every day in a multitude of banking transactions of infinite variety in size, nature, class of customer, and geographic dispersion. The sheer volume and churning of transactions generate billions in demand deposits, make the area a traffic center for checkbook money, and create a vast reservoir of loanable funds. The area banks, therefore, handle an enormous volume and variety of loans ranging from installment loans to local consumers to multimillion dollar loans to nationwide corporations.
As one might expect, the size, volume, pace, and variety of banking services in the metropolitan area has spawned and shaped a commercial banking industry commensurate with the demand for services. There are numerous competitors, great and small, geared to general and specialized banking services in varying degrees.
Thus, at the time of the merger of Manufacturers and Hanover, there were seventy-two commercial banks operating 778 offices in the metropolitan area. They held a total of $ 37.3 billion in deposits, $ 20.9 billion in loans, and $ 44.1 billion in assets. Eight of them held over $ 1 billion in assets, five others over a half billion, eleven others over $ 100 million, forty-seven others from $ 2 to $ 100 million, and the smallest one $ 166,000.
With this preliminary look at commercial banking in metropolitan New York, we turn to the place occupied by the parties to this merger.
E. The Parties to the Merger and Their Place in the Markets.
Both Manufacturers and Hanover were New York corporations with their principal place of business in New York City. Manufacturers traces its origin to 1905, and Hanover to 1873. Both were successful, well managed,
and enjoyed substantial growth. Nevertheless, prior to the merger, their growth rates, as well as that of their largest competitors, lagged those of representative smaller banks in the metropolitan area,
as well as those of the nation's 100 largest banks.
Hanover had no history of mergers, but Manufacturers had one major merger fifteen years ago
and five minor ones during the twenty-year period ending in 1960.
Traditionally Hanover was predominantly, though not entirely, a wholesale bank. It generated most of its business from the deposits and loans of large corporate customers and wealthy individuals. It also served small business firms, but to a very much lesser extent than Manufacturers, and six months before the merger it had ventured into some retail banking services in the local market. It was one of the foremost fiduciary institutions in the city, both in the corporate and personal trust fields. Hanover had 10 branches, and all of them were confined to Manhattan, largely in the uptown business community and in the downtown industrial and financial center. Hanover's operations in the mass retail market were so recent and so small compared to other large integrated banks that the Federal Reserve Board characterized it as a wholesale bank confining its business 'almost exclusively to banks and large corporate customers.'
Manufacturers, on the other hand, had a tradition of retail banking. Historically its growth was due largely to emphasis on service to smaller customers. Retail business, as we shall see, depends primarily upon convenience of location. Manufacturers, therefore, by 1960 had established the largest branch system in the area, with 120 banking offices spread throughout the five boroughs of the city, where it catered to a mass local market offering a wide range of popular banking services to the general public and small businesses. These included savings accounts, special checking accounts, Christmas Club accounts, gift checks, night depositories, personal loans, automobile loans, education loans, repair and modernization loans, loans on accounts receivable, commodity and industrial equipment financing, and small business loans. In the last fifteen years, Manufacturers also extended its operations into wholesale banking in a nationwide market. The banking agencies, therefore, characterized Manufacturers as primarily a retail bank which was also engaged in wholesale banking.
The complementary nature of the business of the constituent banks is demonstrated by the fact that Hanover had only 44,099 depositors with an average balance of $ 39,000 compared to Manufacturers' 1,070,606 depositors with an average balance of $ 3,000. Hanover had only 4,527 borrowers with loans averaging $ 214,000 compared to Manufacturers' 208,322 borrowers with loans averaging $ 7,000.
Measured by assets, before the merger Manufacturers was the fifth largest among 72 commercial banks in the metropolitan area and the sixth among 13,484 in the nation, while Hanover ranked eighth in the area and fourteenth in the nation. After the merger, Manufacturers Hanover ranked third in the metropolitan area. Six other banks remained with assets of over $ 2 billion each. Two of them, Chase Manhattan Bank and First National City Bank of New York, the nation's second and third ranking banks, respectively, are much larger than Manufacturers Hanover.
Between December 31, 1960 and December 31, 1962 one new bank opened, two industrial banks converted to commercial banks, five banks were merged and applications for four new banks were approved by regulatory authorities. At December 31, 1962 there were 70 banks in the metropolitan area.
Twenty-one of defendant's local competitors, other than the top six, have assets ranging from approximately $ 100 million to $ 1 billion, and forty-three more have assets ranging up to approximately $ 100 million. In addition, under a recent change in New York law
permitting foreign banks to open full service branch offices, eleven foreign commercial banks have opened 15 branches in the city. Seven of these foreign banks have assets in excess of $ 1 billion.
Before the merger, there were 778 banking offices spread throughout the metropolitan area, and there are now 897. Most of them provide a broad range of banking services to the general public, but a few wholesale banks, which publicly spurn the minutiae of retail banking or operate only in narrowly specialized fields, remain in the picture.
Immediately after the merger, Manufacturers Hanover had 130 branches, and now has 136, but its relative share of offices in the whole local market has declined since the merger from 16.71% To 15.16%.
Since the merger, the number of commercial banks in the nation has increased to 13,569, and, while Manufacturers Hanover now ranks fourth, the Bank of America still remains the largest bank in the country by a wide margin. Moreover, the number of billion dollar banks in the nation has increased from 24 to 31, and there are 169 others with ever-growing assets gradually ranging from $ 179 million to approximately $ 1 billion. A cursory comparison of the roster of the nation's 200 largest banks, as of December 31, 1950, December 31, 1960, and December 31, 1963 shows that entry into the top 200 has been, and continues to be, wide open and that numerous banks throughout the country have so increased in relative size during the last fifteen years that they have necessarily entered the national market, and since this merger 13 banks have climbed over their competitors and into the top 200.
Much of the evidence presented before the Philadelphia decision related to the issue of whether commercial banking is sufficiently distinct from services offered by other types of financial institutions to constitute a distinct line of commerce. That problem has been solved by defendant's concession, inspired, if not compelled, by United States v. Philadelphia Nat'l Bank, supra, 374 U.S. at 356, 83 S. Ct. 1737, that 'the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term 'commercial banking' * * * composes a distinct line of commerce.'
The government, however, contends that certain banking services
are subproduct markets requiring separate analysis. 'The boundaries of * * * a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.' Brown Shoe Co. v. United States, supra, 370 U.S. at 325, 82 S. Ct. 1524.
We reject the government's contention because it distorts the true competitive picture, obfuscates analysis, and there is no evidence that any of its selected banking services meet any of the criteria laid down in Brown Shoe Co. v. United States, supra. Cf. United States v. E. I. Du Pont De Nemours & Co., supra, 353 U.S. at 594, 77 S. Ct. 872.
The purpose of defining the line of commerce is to focus the impact of a merger on competition. United States v. E. I. Du Pont De Nemours & Co., supra, at 592, 77 S. Ct. 872. Competition in banking is the rivalry among banks for customers. Our quest for the relevant line of commerce is, therefore, directed to the point of the merger's impact on customers and other banks.
The evidence shows that commercial banking in the metropolitan area falls into two distinct subproducts -- 'wholesale' and 'retail' accounts. The late Dr. Jules I. Bogen, an acknowledged expert in the banking field, officers of the merged banks, and an officer of a competitor so testified. Their testimony is undisputed. There can be no question that the banking industry, business, and the public regard wholesale and retail banking as a trade reality.
All of the banking agencies, and even the Attorney General, acknowledged both lines in their analysis of this merger.
In the parlance of the industry, a wholesale bank is one handling a small number of large accounts, concentrating its efforts primarily on large corporations, governmental bodies, financial institutions, and wealthy individuals, while a retail bank is one handling a large number of small and intermediate accounts, catering to the mass needs of the general public and small business. The economic scale of the customer, size of account, size of the bank, specialized nature of the service, tradition, reputation, and public image determine whether the pattern of a bank's business is wholesale, retail, or wholesale-retail.
Traditionally, many of the large banks located in New York City were wholesale banks. In order to serve their large customers, staffs larger than many fairsized towns are required. Such banks are department stores of finance, many banks within a bank. They are usually divided into departments by area of the country, by industry, or both. Specialists in a host of industries, products, and markets keep abreast of countless economic and financial details to serve the particular needs of thousands of diversified industries. Skilled research staffs evaluate companies, forecast growth potential, survey market opportunities, plan financing, and program investments.
These banks are also 'foreign banks' with overseas offices to assist clients in foreign ventures. They maintain working relationships with foreign correspondent banks, finance exports and imports from all over the world, and are experts in foreign exchange handling billions of foreign funds every year. They keep abreast of the rates of exchange, regulations, and monetary conditions of hundreds of countries. They are also bankers' banks linked to a network of domestic correspondents. Frequently they participate in loans with other or correspondent banks because the credit needs are big or specialized and banks are limited by law in the amount they can loan to a single borrower,
and their overall lending ability is governed by the amount of deposits over reserve requirements.
Another aspect of wholesale banking is the short-term, impersonal, 'open market' -- the money market proper -- where money temporarily idle is loaned in enormous sums for a brief period at a small return. Such funds must be invested and liquidated quickly. The most important assets in which the open market deals, therefore, are federal funds,
treasury bills, and other short-term governmental obligations.
Other less important assets include bankers' acceptances, commercial and finance paper, municipal bonds, and short-term government agency obligations.
Funds in this open market, aside from Federal Reserve funds, are loaned primarily by commercial banks, business corporations, insurance companies, and foreign central banks. Such funds are in turn borrowed by other commercial banks, the federal government, finance companies, business firms, and others. The two most important institutions in the open market, aside from the Federal Reserve itself, are the big commercial banks
and the government securities dealers.
The large banks, with their intensive use of money, are like mass production factories compared with the custom tailored lending of the average commercial bank. The nub of the difference stems from the huge accounts and special needs of their corporate customers, their size, lending limits, and organization.
Yet, in other ways, the large integrated banks are like the average small commercial bank. Spurred by a postwar lag in the growth of deposits attributable to non-bank competition, dispersion of industry, population shifts, and the growth of the suburbs, as well as competing financial centers throughout the country,
the trend for the past twenty years has been to retail banking. Many former wholesale banks have ventured into retail operations through a network of branches offering a broad range of services to local businesses and the general public. They provide millions of individuals and countless small businesses operating in the local market with check cashing and clearing facilities. They finance the purchase of everything from household furniture to machinery. Their loans make payment possible while materials are being manufactured, stored, or transported in or around the metropolitan area, or sitting on dealers' shelves awaiting sale.
Thus, as a result of its historical development, commercial banking in the metropolitan area involves both wholesale and retail banking in varying degrees. The distinction between the categories is clear under the test laid down in Brown Shoe Co. v. United States, supra, but the demarcation line between retail and wholesale accounts is fuzzy. That the dividing line is debatable, however, is of no moment. It simply means that workable guidelines must be found in order to sketch a true competitive picture.
The legislative history of Clayton § 7 is permeated with congressional concern for the public and small business.
Manifestly, small and intermediate customers are more limited in their choice of a bank and less able to bargain for terms and conditions than large customers with nationwide standing and the economic strength to conduct their banking business in any of the nation's financial centers. The elimination of a banking alternative by a merger is, therefore, more likely to have a direct and immediate impact on the many small and intermediate customers than on the relatively few large ones. The law, however, applies equally to the great and the small.
There is no doubt that this case concerns both wholesale and retail customers and rivalry for their business. We, therefore, recognize both groups as perfectly good lines of commerce
and will assess the competitive impact of this merger on both large and small customers and upon all of the commercial banks competing for their patronage in the relevant geographic markets.
G. The Geographic Markets.
The parties differ as to the appropriate 'section of the country' or relevant geographic market for assessing the probable competitive effect of the merger. The government contends that the primary market is confined to the City of New York but that the metropolitan area and the whole nation are also appropriate markets. Defendant contends that the primary geographic market is not confined to the City of New York but embraces the metropolitan area, and that we should exclude non-area banking business in calculating local market shares.
The main offices and all of the branches of both Manufacturers and Hanover were located within the City of New York. It is clear, however, that they did considerable business with customers located in the metropolitan area and elsewhere throughout the country and the world. The question to be answered, however, is not where the parties to the merger did business, or even where they competed, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. 'This depends upon 'the geographic structure of supplier-customer relations." United States v. Philadelphia Nat'l Bank, supra, 374 U.S. at 357, 83 S. Ct. 1738. That relationship here is complex, chaotic, and elusive. It is plain, however, that it is by no means confined to the City of New York.
The only clear fact emerging from the swamp of statistics and the facts behind them is that the geographic market varies with the geographic ties and the economic scale of the customer, and the size and nature of the banking service. The short of the matter is that the facts do not permit precise definition of the geographic ...