dissenting.
A.
The majority opinion discusses the conflict between the Sherman and Robinson-Patman Acts and the resulting dilemma that a business concern may face in steering between this Scylla and Charybdis of commerce. However, the course charted by the majority to avoid these two hazards, while carefully considered, does not clear the shoals of United States v. Container Corporation of America, 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969).
The trial judge charged the jurors that, standing alone, verification to comply with Robinson-Patman did not violate the Sher*135man Act; such activity, however, could be evidence of an illegal agreement despite a proper purpose if stabilization of prices resulted. The majority hold that this instruction was erroneous. They read Container Corporation to allow an exchange of information with competitors in oligopolistic markets where:
1. the motive of the seller is compliance with Robinson-Patman;
2. he doubts the truthfulness of a buyer’s report that lower offers by competitors have been made; and
3. the seller is unable to obtain independent corroboration of the buyer’s representation.
This combination of factors is characterized as a “controlling circumstance.” In the interest of brevity, it may be termed the “lying buyer” defense.
There are serious difficulties with this interpretation when the facts of the Container case are examined. The pertinent details in the case are not elaborated in the Supreme Court’s opinion but must be gleaned from the extensive findings and opinion of the district court.1 The trial judge determined that:
1. buyers furnished inaccurate, incomplete or misleading information on prices;
2. no defendant furnished a competitor his most recent price, except in response to a specific request;
8. verification was requested only when buyers were suspected of furnishing inaccurate information;
4. there was no agreement to exchange price data;
5. the information was not disseminated to the public or to customers generally; and
6. there was no proof that the exchange of data had the effect of stabilizing prices.
The district court concluded that the defendant’s conduct was designed to “prevent the perpetration of fraud upon them,” and thus was insulated by Cement Manufacturers Protective Association v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925). Although the district court did not discuss the Robinson-Patman issue, it was briefed by the parties on appeal to the Supreme Court.
The factual background of Container is strikingly similar to that of the case sub judice, except that these defendants do not deny the existence of an agreement to verify and the jury verdict establishes the fact of effect upon prices. These factors weigh the scales even more heavily on the side of the government. The buyers’ behavior in the gypsum industry cannot be classified as a “controlling circumstance” exempting the agreement from the proscription of Container if in that case the Court condemned that very circumstance.
The defendants here have been found guilty of price fixing, and it is now well settled that such conduct is illegal even if the motives which inspire it are beneficent or altruistic, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). In essence, the defendants contend that if price stabilization did occur as a result of their efforts to prepare a Robinson-Patman defense, then such an effect is only incidental and not prohibited. But Robinson-Patman does not mandate price verification with competitors in oligopolistic markets. Our opinion in Viviano Macaroni Co., v. FTC, 411 F.2d 255 (3d Cir. 1969), does not go so far but requires only a reasonable inquiry into a buyer’s veracity. That case does not compel an investigation which itself is illegal either because it results in price fixing or violates other provisions of law.
If the Robinson-Patman Act requires verification, even that which tends to stabilize prices, it is difficult to understand why the defendants’ “purpose” to comply would be significant. Observance of a statutory requirement is legal whether or not the actor has knowledge of it. Thus, it may be seen that the defendants’ use of “purpose” is to make it interchangeable with “motive.” As Socony-Vacuum, supra, makes clear, that *136factor does not absolve those responsible for the forbidden anti-competitive effect. See Maple Flooring Manufacturers Assn. v. United States, 268 U.S. 563, 577, 585, 45 S.Ct. 578, 69 L.Ed. 1093 (1925).
I do not understand Container to expand the holding of Cement Manufacturers, but rather to confine it. The Supreme Court did not attempt to distinguish Cement in detail but there is a difference between that fact situation where a seller was bound by an existing contract to furnish material and that which obtains here where he is free to enter into a transaction or not as he chooses. Container was based on the premise that information exchanges in a restrictive market have the actual or theoretical effect of stabilizing prices and generally should not be tolerated, 393 U.S. at 337, 89 S.Ct. 510. In the oligopolistic setting, the control of price information by the seller reinforces his economic power in a manner inconsistent with the play of free market forces. This theory led the Supreme Court to reject the proposition that an exception should be made when the exchange of price information in a response to the “lying buyer,” though obviously the opinion did not condone the purchaser’s tactics.
I agree with the majority that Belliston v. Texaco, Inc., 455 F.2d 175 (10th Cir.), cert. denied, 408 U.S. 928, 92 S.Ct. 2494, 33 L.Ed.2d 341 (1972), and Gray v. Shell Oil Co., 469 F.2d 742 (9th Cir. 1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973), do not fit within Container. Moreover, in my view Wall Products Co. v. National Gypsum Co., 326 F.Supp. 295 (N.D.Cal.1971), does not follow the Supreme Court’s opinion.
The trial judge in the case sub judice obviously grasped the significance of Container when he charged:
“[I]f . . . the effect of these exchanges was to raise, fix, maintain, and stabilize the price of gypsum wallboard, then you may consider these [exchanges as evidence of the mutual agreement . to raise, fix and stabilize list prices.”
I believe that in the circumstances of this case, the instruction was correct, properly presented the issue to the jury,2 and, hence, did not constitute reversible error.
B.
The testimony in this case took more than four months and generated a transcript of many thousand pages. After all the evidence had been received, the trial judge’s task was to instruct the jury on complex issues of law in the antitrust, conspiracy and general criminal fields. Such a charge must be phrased in language intelligible to a lay audience and, while conveying the substance of the law, must be sufficiently succinct that the jury is not overwhelmed. Too often we on the appellate courts scrutinize jury instructions for adherence to the esoteric standards expected of a law review article. We tend to forget that the charge should be as simple as possible and contain *137no more than the jury needs to apply law to facts in reaching a verdict.
Judge Hunter’s opinion faults the trial judge for failing to give the instruction requested by the defendants which is set out in full at footnote 12. In essence, this point for charge required the jury to determine what kind of agreement or understanding existed as to each defendant. It went on to say that no defendant was to be held responsible for what another conspirator might have done' beyond the common agreement or understanding. I assume that the refusal of the trial judge to charge in the precise verbiage requested is not at issue, see James v. Continental Insurance Co., 424 F.2d 1064 (3d Cir. 1970). Rather, the error claimed is the omission of an instruction to the effect that a particular defendant could be found guilty of conspiracy only if he understood that he had joined the single overall agreement charged in the indictment. As I read it, the charge adequately set forth the spirit of the instruction that Judge Hunter desires. The portions of the charge quoted in footnote 11 of his opinion demonstrate that the jury was told each defendant’s membership in the conspiracy was to be evaluated on an individual basis.
Early in the charge, the trial judge reviewed the indictment which listed allegations of some thirteen manners and means used to implement the price-fixing conspiracy. He later said:
“Before the jury may find that a defendant or any other person has become a member of a conspiracy, evidence in the case must show, beyond a reasonable doubt, that the conspiracy was knowingly formed and that the defendant or other person who is claimed to have been a member knowingly participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy . . .. [S]o, if a defendant or any other person, understanding the unlawful character of a plan, intentionally encourages, advises or assists, for the purpose of furthering the undertaking or scheme, he, therefore, becomes a knowing participant, a conspirator.
******
“If it appears beyond a reasonable doubt, from the evidence in the case, that the conspiracy alleged in the indictment was knowingly formed and that any Defendant knowingly became a member of the conspiracy, either at the inception of the plan or scheme or afterward, then the success or failure of the conspiracy to accomplish the common purpose or object is immaterial.
******
“In considering whether there was a conspiracy, you should bear in mind that a conspiracy does not have to be completely formed at one place or at one time. It can be put together a little at a time and can be joined at different times or in different ways by each alleged conspirator.
******
“Now, there are two essential elements which must be proved in order to establish the offense of conspiracy as charged in this indictment:
“First, that the conspiracy described in the indictment was knowingly formed and was existing at or about the time alleged; and,
“Second, that the Defendants knowingly became members of the conspiracy as charged.
“If the jury should find — you, the jury, should find, beyond a reasonable doubt, from the evidence in the case, that existence of the conspiracy charged in the indictment has been proved, then the conspiracy offense charged is complete, and it is complete as to every person found by the jury to have been knowingly a member of the conspiracy, regardless of whether such a person knowingly became a member at its inception or the beginning of the conspiracy or afterward, during the continuance of the conspiracy.
******
“You have two questions to determine: First, whether there was a conspiracy of *138the character alleged in the indictment; and, second, if so, which of the Defendants, if any or all, were knowing participants in it. This involves an examination of the evidence, separately, with respect to each Defendant.
“In addition, you would not be warranted in finding any individual Defendant guilty, unless you find beyond a reasonable doubt that, knowing of the existence of the conspiracy, he took some action or authorized or directed the employment of one or more means and methods in furtherance of the conspiracy, as I explained to you earlier.” (Emphasis supplied)3
The jury was not left in doubt that it was to analyze the evidence of each defendant’s participation and return a guilty verdict only if convinced of his participation in the price-fixing scheme charged in the indictment. Moreover, just as a challenged sentence or paragraph should be viewed in the context of the complete charge, so should the instructions be considered in the perspective of the trial as a whole. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). After able and vigorous defense counsel had spent many hours arguing their respective clients’ innocence and emphasizing the evidentiary matters favorable to them, it is unrealistic to believe that the lack of semantical refinement in a lengthy and otherwise adequate charge had any effect whatsoever on the verdict. In my view, the charge as given was not erroneous but, even assuming it were deficient to some extent, reversal would not be warranted.
C.
Similarly, I do not agree that the charge on withdrawal from the conspiracy constitutes grounds for reversal. Judge Hunter’s view is that the instructions improperly excluded the possibility of proving withdrawal by evidence of conduct inconsistent with adherence. Moreover, Judge Hunter asserts that the trial judge told the jurors they could not consider the defendants’ theory to that effect. But the charge clearly and accurately stated that withdrawal could be found from evidence showing a defendant “took some affirmative action to disavow or defeat the purpose of the conspiracy.” The court also stated that a defendant must have notified other members of the conspiracy or made disclosure to law enforcement officials. The trial judge concluded this phase of the charge by saying:
“Thus, once a defendant is shown to have joined a conspiracy, in order for you to find he abandoned the conspiracy, the evidence must show that the defendant took some definite, decisive step, indicating a complete disassociation from the unlawful enterprise.”
The phrase “some definite, decisive step” was taken from our opinion in United States v. Chester, 407 F.2d 53, 55 (3rd Cir.), cert. denied, 394 U.S. 1020, 89 S.Ct. 1642, 23 L.Ed.2d 45 (1969), and is a correct statement of the law.
If the defendants understood the charge as limiting the evidence of withdrawal to notification, it was counsel’s duty to request a correction. After the charge, defense counsel stated to the court:
“Your Honor in referring to the subject of determination of abandonment of conspiracy named only two precise alternatives and failed to point out that resumption of competitive behavior such as intensified price cutting or price wars could constitute such aggressive action as to terminate conspiracy.
THE COURT: I purposely left that out, as I do not think it is a correct statement of the law.”
This colloquy must be understood in light of the discussion which occurred before the charge. Defendants had submitted a request for charge that “resumption of competitive behavior, such as intensified price cutting or price wars, could constitute such *139affirmative action. . . . ” At a conference held before the summations, the following dialogue took place:
[DEFENSE COUNSEL]: “Your Honor, may I inquire that you would give the part which says ‘Resumption of competitive behavior,’ such as intensified price cutting, or .
THE COURT: No, I will not give that. I think that’s an improper statement of the law. I am not going to say that.
Competitive behavior may or may not be inconsistent with a conspiracy to fix prices, and it is just as arguable that when prices are low there is a conspiracy to try to get them up and try to get some profits, as there is the other way.
And, furthermore, there is a logical argument here that there are people that were not in the club — as Mr. Fri-cano put it — not in the conspiracy that caused intensified competition.
So, I am not going to charge that. That’s for the jury to determine.
[DEFENSE COUNSEL]: Do I understand that Your Honor is going to charge that there has to be direct evidence of withdrawal?
THE COURT: No, I didn’t say that at all.
[DEFENSE COUNSEL]: I mean the point that we are talking about would indicate evidence from which it seems to me the inference would be drawn of withdrawal.
THE COURT: You can argue that to the jury, but I am not going to tell the jury that merely the fact that somebody was in competition shows withdrawal from a conspiracy. I don’t think that’s good law.
[DEFENSE COUNSEL]: I just want to be sure that you are [sic] going to say there had to be direct evidence of withdrawal.
THE COURT: There are numerous points here that you gentlemen have asked for direct evidence. I am not going to charge that in any instance that there must be direct evidence. There can always be evidence by conduct from which you can imply something.”
Thus, defense counsel were advised in advance that the court would make only a general statement of the law and would not adopt their application of the facts, although counsel would be free to argue their factual proposition to the jury. The defense did not object to the charge because it limited evidence of withdrawal to affirmative notification, but rather because the judge refused to weave in the defense interpretation of the evidence. However, the jurors were free to consider that the alleged competitive activity was a definite, decisive step indicating a complete disassociation from the unlawful enterprise. The verdict indicates they rejected that theory. I cannot justify a new trial on the basis of this asserted deficiency in the charge.
D.
The concurring opinion finds reversible error in the trial judge’s comments to the jury foreman and in the failure to declare a mistrial because the jury was deadlocked. I am unable to agree.
In fairness to the trial judge, it must be emphasized that he spoke to the foreman only after receiving the unequivocal assent of the individual defendants and counsel, and indeed at the latter’s urging. Defense counsel voiced some misgivings when the judge advised that he would impound the transcript “for review by some other court if that should ever become necessary,” but the judge then stated that he would convey to counsel the import of his conversation with the foreman insofar as it did not reflect the thinking of the jurors. Moreover, the judge was explicit in stating that the transcript would not be available to counsel except on appeal, and he would not meet with the foreman if that provision was unacceptable. This condition precedent could not have been misunderstood by counsel.
After the conference with the foreman ended, the judge met with the lawyers and relayed the substance of the jurors’ com-*140merits. Defense counsel then moved for a mistrial:
“[0]n the basis that it appears from what we know, from what Your Honor has told us, and our observations, that the jury is deadlocked and it appears unlikely that they would be able to reach a unanimous verdict, apparently even with respect to the individual Defendant parties, and therefore there is the danger of the coerced verdict.”4
The trial judge did not deny the motion, but deferred ruling, saying: “I am not going to discharge the jury yet . . . . I would like a view as to how much longer I should let them deliberate before I . declare a mistrial . . . .” One defense lawyer suggested that the appropriate point would be the following morning but another disagreed, stating that the deliberations had gone far enough. The judge responded that he would allow the jury to continue until Friday, and at that time would rule on the motion. Since the verdicts were returned on Tuesday, the following morning, the motion became moot.
On the preceding Friday, July 11, the fourth day of deliberation, the judge advised counsel that some jurors were not feeling well and others were tired. He listed a number of alternatives which might alleviate the jurors’ discomfort, including the option of sending them home for the weekend. When the defense objected, the judge acquiesced, although he recalled that this court had approved the practice of allowing jurors in a criminal case to return to their homes during deliberations. See United States v. Piancone, 506 F.2d 748 (3d Cir. 1974). In an effort to ease the jurors’ task, the hours of deliberation were shortened but the sequestration continued.
The concurring opinion contends the jury had the mistaken impression that it was required to reach a verdict of guilty or not guilty. But at no time did the trial judge so charge or otherwise suggest this to the jury. Indeed, he was well aware that such an instruction would be error. After the Fioravanti charge was given on Sunday, the sixth day of deliberation, the judge and counsel had the following conversation:
[DEFENSE COUNSEL]: “That has occurred after Your Honor had on two prior occasions given the charge, first of all in your original charge, then again yesterday afternoon advising them as to their obligation to reach a verdict.
******
THE COURT: I would only point out that I did not charge them as to their obligation to reach a verdict.
******
I at no time said they had a duty to reach a verdict. I said they had a duty to deliberate toward reaching a verdict. I think that would be error, and I did not do that.
[DEFENSE COUNSEL]: I didn’t mean to indicate you used those words. I used that as a short-hand way of referring to the charge Your Honor had given and I believe in all these instances it was similar to the Third Circuit charge . . .
In concluding his remarks to the jury foreman on Monday, the judge said:
“You tell them to keep deliberating and see if they can come to a verdict.” (Emphasis supplied)
I do not read this as a direction to reach a verdict, but rather that the jury should attempt to reach a verdict. This was a perfectly proper admonition. Plainly the judge did not rule out the possibility that the jury could not come to a verdict since the language of his remark was conditional.
In my view it would not have been proper for the judge to have told the foreman at the private conference that the jury had the option of reaching no verdict. The judge had assured counsel in advance that he would give no instruction on the law during the conference and, indeed, the defense *141lawyers were most anxious that there be no repetition of the Fioravanti charge. It is also highly unlikely that thereafter defense counsel would have asked the court to tell the jury about its privilege to return no verdict. For some time before the conference, all the lawyers were aware that the possibility of a true deadlock existed, but no request for additional charge along that line had been made. Moreover, I would doubt that such an instruction should be given. Experience demonstrates that juries should be encouraged to reach verdicts and should not be proffered an “easy way out” by a judicial suggestion that a deadlock is an equally satisfactory alternative. It is the duty of the trial judge to determine when the jury has “hung,” and then declare a mistrial. This procedure adequately protects the right of the parties to a “no verdict” trial.5
The reasoning of Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), is not pertinent here. In that case, after only two hours of deliberation, the trial judge stated to the jury in part, “You have got to reach a decision in this case.” Id. at 446, 85 S.Ct. at 1060. The Solicitor General’s brief referred to the principle that jurors may not be coerced into surrendering views conscientiously held. Fioravanti also refers to that principle, and the trial judge here cautioned the jury in that vein on several occasions. United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). The record does not support the assertion that he impermissibly insisted on a verdict.
The decision to declare a mistrial must in large measure be entrusted to the discretion of the trial judge. He is “on the scene” and is in a position to make an informed judgment on the physical and emotional conditions of the jurors, the difficulties involved in the issues submitted to them, and the likelihood that a verdict will be reached. No record can convey all the imponderable factors to an appellate court, nor does its experience better qualify it in any but the exceptional case to second-guess the trial judge. The fact that the foreman thought no verdict could be reached is not conclusive upon us or the trial judge. It is not uncommon that a verdict is returned after a jury has sincerely thought it was deadlocked. The foreman was not endowed with the experience of the trial judge, and it is understandable that with so many complex issues to be resolved, he became discouraged during the deliberations.6
This was a lengthy and vigorously contested case, where the factual issues were close and the mass of exhibits formidable. It would seem inconceivable that any reasoned, responsible verdict could have been reached without extended deliberations. Moreover, the expenditure of time, resources and effort on the part of all concerned obligated the trial judge to exert his best efforts to secure a verdict if one could be reached without injustice or coercion. I am convinced that he properly exercised his discretion. The defendants’ contention to the contrary rings somewhat hollow in my ears, particularly in view of their objection to permitting the jurors to return home during the deliberations, at least over the weekend.7
*142It has often been said that there are no perfect trials, and the best that our system can provide is a fair one. I believe that criterion was met here and, accordingly, I would affirm.
. The case is reported at 273 F.Supp. 18 (M.D.N.C.1967).
. In Handler, Antitrust: 1969, 55 Cornell L. Rev. 161, 176 (1970), Professor Handler writes: “A compact to exchange price information plainly should be unlawful without more if its purpose or effect was to stabilize prices.” He observed that in Container Corporation defendants had stressed Robinson-Patman as well as fraudulent conduct of the buyers as a defense, but Justice Douglas, author of the majority opinion, “rejected these assertions out of hand.”
In Kefauver, The Legality of Dissemination of Market Data by Trade Associations: What does Container Hold? 57 Cornell L. Rev. 777, 788 (1972), the author states: “The majority in Container of course found an effect of price stabilization, but nothing in the opinion indicated that they had found a purpose on the part of defendants to achieve such an effect.” “Container placed a new emphasis on the effect of competitors’ exchange of market information.” Id. at 791. Professor Handler noted that a contrary result would promote evasion. Cf. Eaton, The Robinson-Patman Act: Reconciling the Meeting Competition Defense with the Sherman Act, 18 Antitrust Bull. 411, 427 (1973). (“There is however a great potential for abuse in any ‘lying buyer’ defense. Its applicability may therefore be somewhat limited.”)
A deliberate scheme to fix prices is, of course, illegal, even if unsuccessful, and in such a case the “purpose” of the defendants would be relevant to establish intent.
. These instructions were taken in large part from 1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, Chapter 23, Antitrust-Conspiracy-Contract in Restraint of Trade (2d ed. 1970).
. In view of the tenor of the motion, I see no significance in the fact that the trial judge did not report the foreman’s belief that the jury was deadlocked. Indeed, the defense lawyers had moved for a mistrial on the previous day because of an allegedly hung jury.
. The problem engendered by a charge to the jury advising of its right to return “no verdict” is similar to that in which a criminal jury would be told that it may disregard the charge and acquit the defendant in spite of the law. While a jury does have such a right, the wisdom of such an instruction has been vigorously debated. See the opinion of Judge Sobeloff in United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). Cf. United States v. Alper, 449 F.2d 1223, 1233 (3d Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972).
. After the jury returned its verdicts, it was polled several times and each juror unequivocally confirmed the findings of guilt.
. It is difficult to understand the defense’ reluctance about allowing the jurors to return home since they had done so each evening during the months when testimony was being received. If there had been danger of damaging publicity or improper approaches to the jury, it would not have sprung into existence simply because deliberations had begun.