Opinion of HARLAN, J.

376 U.S.

Paso. If El Paso can absorb Pacific Northwest without violating § 7 of the Clayton Act, that section has no meaning in the natural gas field. For normally there is no competition-once the lines are built and the long-term contracts negotiated except as respects the incremental needs.

Since appellees have been on notice of the antitrust charge from almost the beginning-indeed before El Paso sought Commission approval of the merger-we not only reverse the judgment below but direct the District Court to order divestiture without delay."

Reversed.

MR. JUSTICE WHITE took no part in the consideration or decision of this case.

MR. JUSTICE HARLAN, concurring in part and dissenting in part.

I.

Contrary to what I had first thought, the Government is not asking in this case, as it did in United States v. Yellow Cab Co., 338 U. S. 338, that we "in effect... try the case de novo," id., at 340. Rather it contends that on the undisputed facts of record the ultimate determination below was clearly erroneous. See id., at 341-342. For reasons given in the Court's opinion, I agree that a violation of § 7 of the Clayton Act has been established, and that the District Court erred in deciding otherwise. On this score I shall comment only on two matters.

First. The Court's strictures concerning the District Court's findings seem to me to miss the mark. Findings of fact should, of course, be the product of the conscientious and independent judgment of the district judge. Nevertheless, if they are supported by evidence, they are not rendered suspect simply because the trial court, as

7 Cf. Wisconsin v. Illinois, 281 U. S. 179, 197.

651

Opinion of HARLAN, J.

here, has accepted in toto the findings proposed by one side or the other. The real lack in this case is that the District Court wrote no opinion setting forth the reasoning underlying any of the subsidiary findings on disputed issues of fact or connecting the subsidiary findings with its ultimate determination that the Clayton Act had not been violated by this merger.

Both as a practitioner and as a judge I have more than once felt that a closely contested government antitrust case, decided below in favor of the defendant, has foundered in this Court for lack of an illuminating opinion by the District Court. District Courts should not forget that such cases, the trials of which usually result in long and complex factual records, come here without the benefit of any sifting by the Courts of Appeals. The absence of an opinion by the District Court has been a handicap in this instance.

Second. This case affords another example of the unsatisfactoriness of the existing bifurcated system of antitrust and other regulation in various fields. In this case, the Federal Power Commission had indicated its approval of this merger as being in the public interest. The Department of Justice, however, considered the merger to be violative of the antitrust laws and, for that reason alone, against the public interest. This Court, under the present scheme of things has no choice on this record but to sustain the position of the Department of Justice, as indeed it has felt constrained to do, albeit in my view with less justification, in other recent cases involving dual regulation. Cf. United States v. Philadelphia National Bank, 374 U. S. 321; United States v. First National Bank & Trust Co., decided today, post, p. 665, and my dissenting opinions in those cases. It would be unrealistic not to recognize that this state of affairs has

*This Court has not had the benefit of an amicus brief from the Federal Power Commission.

Opinion of HARLAN, J.

376 U.S.

the effect of placing the Department of Justice in the driver's seat even though Congress has lodged primary regulatory authority elsewhere.

It does seem to me that the time has come when this duplicative and, I venture to say, anachronistic system of dual regulation should be re-examined. Had the subtle and necessarily speculative questions involved in assessing the short-term and long-term effects of this merger been subject to appraisal by a single agency, under congressionally established standards marking the relationship between the different and often competing objectives of the antitrust laws and those governing the regulation of "interstate" natural gas, who can say that this case might not have called for a different outcome?

II.

While I agree with the Court's decision on the merits, I dissent from its peremptory ordering of divestiture. "The framing of" appropriate relief "should take place in the District rather than in Appellate Courts." International Salt Co., Inc., v. United States, 332 U. S. 392, 400 (footnote omitted). United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, is not to the contrary; that case had already been here before on the merits (353 U. S. 586), and when it came here again at the relief stage the Court observed that "the District Courts [have] the responsibility initially to fashion the remedy

366 U. S., at 323. I know of no case where this Court has in the first instance itself directed divestiture or any other particular kind of relief. The fact that these appellees have been "on notice," ante, p. 662, of the charges against them affords no justification for this departure from normal practice. See the cases cited in the second du Pont case, 366 U. S., at 322.

I would remand the case to the District Court for the fashioning of appropriate relief.

Syllabus.

UNITED STATES v. FIRST NATIONAL BANK & TRUST CO. OF LEXINGTON ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY.

No. 36. Argued March 4-5, 1964.-Decided April 6, 1964.

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. 666-673.

(a) Commercial banking is one relevant product market in which to judge the effect of the consolidation on competition. Pp. 666-668.

(b) The consolidation should be judged by its effect on competition in Fayette County, the geographical market. P. 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. 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. 669–673.

208 F. Supp. 457, reversed.

Opinion of the Court.

376 U.S.

Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Larry L. Williams, Melvin Spaeth and Richard J. Wertheimer.

Robert M. Odear argued the cause for appellees. With him on the brief were Gladney Harville, Rufus Lisle and Clinton M. Harbison.

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. 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 consoli

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.