.concurring:
I concur in the result and the reasoning of the majority opinion. I add a word to note the problem, and it is a real problem as I see it, that an association may well, through its president or other managing official, be engaged in a combination in fact to “steer” legal business to its counsel (who *234may have business or personal ties with management, or both).
If a borrower must pay extra out of his own pocket when he hires another lawyer, but has no additional payment to make if he hires lawyer X, there is likely some steering of trade, and that is a “restraint.”1
Where plaintiff fails in this case is that he made no tender of facts that such steering as takes place has been venally motivated. And there is a justification for the system developed in defendant’s institution —namely, (1) It wants its own counsel Mr. X (for its own protection); (2) It is willing to waive retainer of Mr. X when plaintiff has already hired him, thus avoiding either waste, or a double fee to Mr. X for doing the same work.
The combination of justification in terms of saving to the borrower plus lack of any showing of venality in the circumstances warrants a finding as a matter of law that there has been no showing of an unreasonable restraint of trade.
If the defendant’s loan practice were not “instituted solely for a legitimate business purpose,” but rather from venal motivations, I think that practice quite possibly could be found “anticompetitive in purpose.” 2 Judge Wilkey has authorized me to state that he joins in this opinion, and in its conclusion that the matter is open if another record makes a tender of venality.3
. Nor is the possibility disproved on the ground that in any event the association would have this work done by X. Management may hesitate to insist on a particular counsel, as against the possible outcry from members or shareholders, if the annual report shows a very large sum paid to this lawyer by the association. But if a large part of that lawyer’s income is recorded on his books as payments by a number of borrowers, and does not appear at all— either on his books or the association’s — as a fee attributable to the association, that stills ■ any possibility of embarrassing inquiry.
The matter would be completely set at rest, of course, if the association adopted the suggestion of the majority opinion and chose a group of attorneys for this work.
. Maj. op. at 935.
. The leading opinion on reasonableness is flavored with intimations of bribery. Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911).
In seeking rehearing, plaintiffs-appellants put it that this concurring opinion carves out new ground, which they should have opportunity to explore, that they had properly been proceeding on the theory that the antitrust laws are concerned with effects of conduct, not intent or laudable purpose, citing Sullivan, Antitrust (West Pub. St. Paul 1976) at 194, and that the existence of intent as an element in a criminal antitrust offense, such as was involved in Standard Oil, is not applicable in civil cases which remain governed by “the general rule that a civil violation can be established by proof of either an unlawful purpose or an anticompetitive effect.” United States v. United States Gypsum Co., 438 U.S. 422, 436 n.13, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854. In Gypsum Chief Justice Burger goes on to say: “Of course, considerations of intent may play an important role in divining the actual nature and effect of the alleged anticompetitive conduct. See Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918). Thus cited is pertinent observation of Justice Brandeis (246 U.S. at 238, 38 S.Ct. at 244):
But the legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. It is hardly new law to say that context and
purpose guide in determining whether the agreement or practice under consideration goes beyond the quality of incidental restraint, a familiar and not forbidden occurrence, and takes on the color of an unreasonable restraint, with a predominantly anticompetitive character.