concurring in part and dissenting in part:
I would affirm the district court’s summary judgment in favor of the defendants on the vertical conspiracy count and, accordingly, dissent from Section V of the court’s opinion. I am also unable to join all of Sections IV-A, VII-A, and VII-B. I do join the remainder of the court’s opinion. I comment only on the trade association aspect of the horizontal conspiracy charge and on the vertical conspiracy charge.
I.
Trade associations have been held liable for unreasonably restraining trade in violation of section 1 of the Sherman Act, even when they have not been accused of contracting, combining, or conspiring with other unrelated actors. See, e.g., National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978). Courts, however, have not articulated how a trade association, by itself, can violate a statute which “does not prohibit unreasonable restraints on trade as such— but only restraints effected by a contract, combination, or conspiracy.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S.Ct. 2731, 2744, 81 L.Ed.2d 628 (1984).
A sound theory of trade association liability under section 1 will recognize the anticom-petitive potential inherent in a agglomeration of competitors. Indeed, trade associations have fixed prices, see, e.g., Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), organized group boycotts, see, e.g., Fashion Originators’ Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), allocated customers and territories, see, e.g., United States v. Topco Assoc., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), and suppressed potential competitors, see, e.g., United States v. Women’s Sportswear Mfr. Ass’n, 336 U.S. 460, 69 S.Ct. 714, 93 L.Ed. 805 (1949). A sound theory of trade association liability, *1017however, also will recognize that some trade association activities are not necessarily inconsistent with the preservation of competition. These activities include cooperative research, market surveys, development of new uses for products, mutual insurance, publication of trade journals, advertising, and joint representation before legislative and administrative agencies. See Julian 0. van Kali-nowski, Antitrust Laws and Trade Regulation § 61.01. Most trade associations are organized for the purpose of pursuing these kinds of activities and most members initially join because of the benefit to be derived therefrom. If such an association thereafter engages in anticompetitive activity, only a limited number of its members may be involved in, or even aware of, the change of course. Finally, a sound theory of trade association liability will conform with the “well-established” rule that “[a] single person or entity acting alone is not subject to the strictures of Section 1.” Earl W. Kintner, Federal Antitrust Law § 9.7.
The plaintiffs insist that trade association activity is concerted activity for purposes of section 1. Since any activity of an officer of an association engaged in with apparent authority is activity of the association under conventional rules of agency, any such activity, in plaintiffs’ view, is thus concerted activity for purposes of section 1. This logic eviscerates the concerted action requirement of section l.1
In my view, the agreement element of a section 1 claim is satisfied if, but only if, it is shown that two or more of the association’s members have committed themselves to the anti-competitive activity of the trade association and to the accomplishment of its objectives. Thus, in the absence of a conspiracy between the trade association and a third party, the association can be liable only if some of its members are using it to unreasonably restrain trade.
Since a trade association is normally controlled by its members, where an association has engaged in anticompetitive activity, it normally will not be difficult to show the necessary agreement among a group of its members. The focus of the theory on the commitment of its members to anticompeti-tive activity, however, has important corollary consequences. One is that members of the trade association who neither participate nor knowingly acquiesce in the association’s anticompetitive activity, unlike those who do, will not be held liable along with the association. See, e.g., Kline v. Coldwell, Banker & Co., 508 F.2d 226 (9th Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975); Phelps Dodge Refining Corp. v. FTC, 139 F.2d 393 (2d Cir.1943); see generally, Earl W. Kintner, Federal Antitrust Law § 9.16.
Another collateral consequence of this theory of concerted activity is that, in the absence of membership commitment to an activity engaged in by an association officer or a conspiracy between the officer and some other entity, the activity of the officer is not concerted activity. It seems to me that this must be true without regard to whether the officer had apparent authority to act as he did, although evidence supporting the existence of apparent authority may also constitute circumstantial evidence tending to show concerted activity on the part of the members of the association.
As the district court recognized, if NDPA’s directors, acting on behalf of the retailers they represent, had passed a resolution instructing its officers to recruit retailers for a boycott of any manufacturer who dealt with 800-number dealers and to threaten manufacturers with such a boycott, and an officer of the association had carried out this directive, the association clearly would have engaged in concerted activity for purposes of section 1. As the district court emphasized, there is no evidence of such formal corporate action in this record.
The district court erred, however, by not continuing its inquiry beyond this level. If NDPA’s directors did not pass such a resolution but, acting on behalf of the retailers they represented, tacitly agreed among themselves to so instruct NDPA’s officers, the association would just as surely be engaged *1018in concerted activity when an officer carried out this agreement. In this situation, as in the first, NDPA would have been used by its members, through their representatives on the board, to engage in concerted activity. The same would be true if an officer of the NDPA had initiated this kind of anti-competitive activity without the knowledge or approval of the board and the board, after learning of it, had approved or acquiesced in it. As a matter of antitrust theory, however, I do not think that an activity of an NDPA officer, even if engaged in with apparent authority, can constitute concerted activity in the absence of some basis for inferring member commitment to that activity.
With this theoretical background, I turn to the summary judgment record in this case. Plaintiffs urge that a trier of fact could infer from the present record that officers of NDPA, with the approval of NDPA’s board and the retailers they represent, threatened FSC and other manufacturers with a dealer boycott if they did not take measures against the 800-number dealers. I do not understand the defendants to urge at this stage that such an inference would not provide a satisfactory basis for imposing section 1 liability.2 They do insist, however, that such an inference cannot reasonably be drawn from the current record. While the issue is a close one, I think there is enough evidence to make the plaintiffs’ inference a permissible one.
Mr. Petit, the CEO of NDPA, candidly acknowledged speaking directly to numerous manufacturers after the consent decree about the concerns of conventional retailers regarding 800-number dealers. Given the past history of the matter and Mr. Petit’s view that the scope of FTC’s consent decree was of very limited effect, a rational trier of fact could infer that Mr. Petit continued, after the decree, not only to express to manufacturers the concerns of the conventional dealers, but also to call upon them to take specific steps to thwart the 800-number dealers. When he spoke to manufacturers about this matter, he spoke on behalf of the NDPA. As he testified, he spoke about “the concerns of the NDPA.” App. 191. Clearly, he viewed himself as authorized by the NDPA to say what he did. As he put it, “That’s my job,” referring to his campaign among the manufacturers. App. 192.
As the defendants stress, there is no direct evidence of a threat of a boycott by Mr. Petit or anyone else on NDPA’s behalf. There is, however, evidence that Mr. Petit emphasized to the manufacturers “the anger felt by the retailers in [the] lack of support from the wallcovering industry,” App. 185, and that his demands for action by the manufacturers came against a background of public, oral and written advice from NDPA officers that conventional retailers should deal only with those manufacturers who supported them. When one adds to this evidence the fact that some manufacturers did respond with measures against the 800-number dealers, I believe a trier of fact could conclude that a boycott threat was intended by the NDPA officers and understood by the manufacturers.
Finally, if a trier of fact inferred that NDPA officers implicitly threatened a boycott, it would be permissible for the trier of fact to further infer that the NDPA board members knew of the boycott threat and at least tacitly approved it. Mr. Petit’s triumphant memorandum of January 29, 1990, to the board members is strong circumstantial evidence supporting this view. That memorandum, it will be recalled, declared that FSC’s decision not to sell to the “sales pirates” was “a major step forward in our battle against the 800-number operators.” App. 693 (emphasis added). There is, in addition, evidence that the board regularly discussed this matter and it was receiving intense pressure from NDPA membership to do something about the problem. Thus, like my colleagues, I would reverse the district court’s summary judgment in favor of the defendants on the horizontal conspiracy charge.
II.
Turning to the charged vertical conspiracy, I start with the undisputed propositions that (1) potential purchasers of wallcovering normally desire to view samples of the merchandise before making a purchase, (2) as a re-*1019suit, FSC has for years sold sample books and promotional materials and has for years encouraged other investment from its retailers to facilitate customer selection and satisfaction, and (3) the 800-number retailers are free riders as far as that investment is concerned. Since FSC cannot long remain successfully in business if its retailers are unwilling to make the investment necessary to facilitate customer selection and satisfaction, FSC has a legitimate and compelling interest in making sure free riders do not maintain a competitive advantage over retailers who are willing to make that investment. Nothing in this record tends to show that FSC took any action with respect to the plaintiffs other than to serve this interest. In particular, there is no evidence from which a finder of fact could infer a retail price maintenance conspiracy involving FSC. Under the now-familiar teachings of Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), the mere fact that FSC’s conventional retailers complained and FSC acted in response to those complaints does not preclude summary judgment for the defendants.
In Monsanto, a manufacturer and some of its distributors allegedly conspired to sanction a discount distributor. The Supreme Court began its analysis by noting that section 1 outlaws only some sanctions against a discount distributor: unilateral conduct is not forbidden and concerted action is per se illegal only when it fixes prices. Id. at 760-61, 104 S.Ct. at 1469. The Supreme Court then observed that these distinctions are often difficult to apply in practice because the economic effect of legal and illegal conduct can be similar — indeed, “judged from a distance, the conduct of the parties in the various situations can be indistinguishable.” Id. at 762, 104 S.Ct. at 1470. Care, the Supreme Court directed, should be taken in inferring a conspiracy from highly ambiguous evidence,, lest perfectly legitimate conduct is deterred or penalized. Id. at 763, 104 S.Ct. at 1470. The Supreme Court went on to hold that á vertical conspiracy cannot be inferred solely from evidence of complaints from distributors to a manufacturer about a discount distributor and a resulting termination of the discount distributor:
Permitting an agreement to be inferred merely from the existence of complaints, or even from the fact that termination came about “in response to” complaints, could deter or penalize perfectly legitimate conduct. ... Moreover, distributors are an important source of information for manufacturers. In order to assure an efficient distribution system, manufacturers and distributors constantly must coordinate their activities to assure that their product will reach the consumer persuasively and efficiently. To bar a manufacturer from acting solely because the information upon which it acts originated as a price complaint would create an irrational dislocation in the market.
Thus, something more than evidence of complaints is needed. There must be evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently. As Judge Aldisert has written, the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others “had a conscious commitment to a common scheme designed to achieve an unlawful objective.”
Id. at 764, 104 S.Ct. at 1470-71.
The three pieces of evidence that the plaintiffs in this case have offered to prove a vertical conspiracy fail to meet the standard that the Supreme Court set forth in Monsanto. First, the plaintiffs note that the conventional retailers complained to FSC about the 800-number dealers. Complaints like these are precisely what, the Supreme Court considered in Monsanto and found to be insufficient to prove a vertical.conspiracy:
[Cjomplaints about price cutters “are natural — and from the manufacturer’s perspective, unavoidable — reactions by distributors to their rivals.”' Such complaints, particularly where the manufacturer has imposed a costly set of nonprice restrictions, “arise in the normal course of business and do not indicate illegal concerted action.”
Id. at 763, 104 S.Ct. at 1470 (citations omitted).
Second, plaintiffs offer evidence that FSC did not use mathematical calculations from its own cost data to set the drop-shipment surcharge, even though the surcharge was *1020purportedly instituted to equalize the costs of deliveries to the conventional and 800-num-ber retailers. The absence of mathematical calculation supposedly suggests a vertical conspiracy: in the words of this court, “FSC may have imposed the surcharge without first undertaking mathematical calculations because it had agreed with others to impose the surcharge whether it made economic sense or not.”
FSC’s determination of the drop-shipment surcharge is not probative of whether FSC acted alone or in conspiracy with the conventional retailers. An arbitrarily chosen surcharge is equally compatible with both unilateral and concerted conduct. Seeking to end destructive freé-riding, FSC might have exercised its right under United States v. Colgate, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), to unilaterally limit its dealings with 800-number retailers and, toward that end, imposed a substantial surcharge to level the playing field for conventional retailers, or even to cripple the 800-number retailers. While I acknowledge that FSC and the conventional retailers conceivably could have conspired to cripple the 800-number retailers through a substantial surcharge, that concession does not preclude summary judgment for the defendants. Because a surcharge fixed by FSC is equally compatible with both hypotheses, no inference of conspiracy can be drawn: “Monsanto ... establishes that conduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 597 n. 21, 106 S.Ct. 1348, 1361 n. 21, 89 L.Ed.2d 538 (1986).
Plaintiffs’ third piece of evidence of a vertical conspiracy is the differently-phrased explanations FSC offered in internal and external communications for the drop-shipment surcharge. This court observes that “a jury might view FSC’s apparent desire to use more genteel language when explaining its actions to the public as implying a sinister motive.”
FSC’s liability under section 1, however, does not turn on whether FSC had “a sinister motive,” but whether it acted alone or in combination with the conventional retailers. The varying tones in internal and external communications are consistent with both hypotheses — the sanitized language that FSC used to avoid drawing attention to its moves against the 800-number dealers could have been the result of either a unilateral decision to eliminate free-riding or a conspiracy with the conventional dealers against the 800-number retailers. Once more plaintiffs have presented “highly ambiguous evidence,” Monsanto, 465 U.S. at 763, 104 S.Ct. at 1470, that does not tend.“to exclude the possibility that the manufacturer and nonterminated distributors were acting independently,” id. at 764, 104 S.Ct. at 1471.
A misreading of Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993), may well be responsible for the court’s decision on the vertical conspiracy count. In Big Apple BMW, we noted that a manufacturer’s “inconsistent reasons” for denying a franchise support an inference of conspiracy with existing franchisees. Id. at 1374. The court seizes on this language from Big Apple BMW to argue that FSC’s drop-shipment surcharge and the varying tones of internal and external communication about the surcharge are inconsistencies which permit an inference of conspiracy. This analogy is flawed.
In Big Apple BMW, unsuccessfid applicants for an automobile dealership brought a claim under section 1, charging that the manufacturer and existing dealers conspired to deny them the dealership because they would have been price cutters. The plaintiffs identified actions of the defendants which suggested a conspiracy, but the defendants tendered business reasons for each of their actions. We found that summary judgment was inappropriate: even though the defendants had offered justifications for their actions, these justifications were “internally inconsistent and inconsistent with [the manufacturer’s] concomitant treatment of [other] dealers.” Id. at 1374. For example, the manufacturer claimed that it refused to award a franchise to the applicants because they attempted to bribe one of its employees; *1021evidence showed that the same employee solicited the applicants to buy a franchise only a year after the attempted bribe. Id. at 1368. The manufacturer claimed that it refused to award a franchise to the applicants because they would have engaged in price advertising; evidence showed that other dealers engaged in price advertising. Id. at 1378. The manufacturer claimed that it refused to award a franchise to the applicants because they would have located their dealership in an “automall” adjacent to other manufacturers’ dealerships; evidence showed that the manufacturer tolerated other multi-fran-chise dealerships. Id. at 1380.
In Big Apple BMW, if the trier of fact believed the plaintiffs’ evidence that tended to show pretext, it would be left with no reason to believe that the manufacturer acted unilaterally to advance its own self interest. This case is fundamentally different. A trier of fact in this case could believe that FSC did not calculate the drop charge from its cost data and could agree with every inference plaintiffs seek to draw from the draft press release and this would still not alter the indisputable fact that FSC had a legitimate and compelling self interest in solving the free rider problem and preserving an effective distribution system.
Finding no evidence in the record that tends to exclude the possibility that FSC acted unilaterally against the 800-number dealers, I would affirm the district court’s grant of summary judgment on the vertical conspiracy count.
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and MeKEE, Circuit Judges.. I express no opinion on whether the activities the defendants are accused of engaging in constitute an unreasonable restraint of trade within the meaning of section 1 of the Sherman Act.