concurring and dissenting.
I agree with the majority that plaintiffs common law claims against defendant Northwest for fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing are barred by the mandatory arbitration clause in the contract between plaintiff and Northwest. I respectfully dissent from the majority’s decision affirming the dismissal of plaintiff’s antitrust claims and its common law claims against Simmons.
In 1985, defendant Northwest and Republic Airlines were competing national airlines operating “hubs” at the Detroit and Minneapolis/St. Paul airports.1 Defendant Simmons was a regional air carrier providing service from Detroit and Chicago, and had just begun serving as a Republic Express commuter carrier out of Detroit.2 Plaintiff Fischer Bros, was a regional air carrier providing service to various cities in Ohio and Michigan and operating as a regional airline of US Air.
On December 23, 1985, Fischer Bros, discontinued its affiliation with US Air and entered into a five year agreement to provide commuter service for Northwest. As a Northwest Airlink, Fischer Bros, was in competition with Simmons, operating as Republic Express, in markets from Detroit to Traverse City, Lansing, and Flint, Michigan, and from Detroit to Cleveland and Columbus, Ohio. In January, 1986, Northwest and Republic executed an agreement and plan of merger, subject to approval by the Department of Transportation (DOT). Northwest informed the commuter carriers, including Fischer Bros., that they would continue to “play a major role” and would have expanded opportunities as Northwest commuter carriers after the merger.
No airline opposed the merger in administrative hearings before the DOT,3 but the Antitrust Division of the United States Department of Justice did. In response to the Department of Justice’s opposition, Northwest argued the merger would not reduce competition because, inter alia, the remaining airlines, including commuter carriers such as Fischer Bros., would continue to compete against the merged Northwest-Republic. The DOT concluded the proposed merger presented “some troubling issues.” The Department nonetheless approved the merger on August 12, 1986, but declined to grant any antitrust immunity to the merged company.
After the merger was approved, Northwest presented to the commuter carriers a proposal for dividing up the markets in Detroit and Minneapolis/St. Paul. Both Fischer Bros, and Simmons rejected the proposal for the Detroit regional market.4 In the ensuing weeks, Fischer Bros, made several counterproposals to Northwest, including one which contemplated continued competition, but these proposals were rejected by Simmons and/or Northwest. On September 8, George Rassmusson, who had been Republic’s Director of Regional Airline Programs and who was employed after the merger by Northwest in that capacity, became involved in the negotiations. Rass-musson had worked closely with Joel Murray, Simmons’ chairperson, during Rass-musson’s employment at Republic and was a “drinking buddy” of Peter Piper, Simmons’ Executive Vice President.
On September 11, Rassmusson met with representatives of Fischer Bros, and Simmons. After several hours of discussion, Simmons offered to purchase Fischer Bros. *603for $3.3 million. When the parties met to consummate the sale on September 22, however, Fischer Bros, claims Simmons changed its position and added new and unacceptable terms to the deal. Negotiations continued throughout the day with Rassmusson’s participation. That evening, Rassmusson had dinner with Piper and Murray from Simmons. The following day, negotiations remained stalled. Rassmus-son left, and Fischer Bros., after discussing the matter further, decided to return to Ohio to consider Simmons’ proposals.
The next day, September 24, 1986, Fischer Bros, received a notice from Simmons withdrawing all offers and, within hours, also received a notice of termination from Northwest. Fischer Bros, claims its termination resulted from an agreement between Simmons and Northwest to eliminate Fischer Bros, from the market because Fischer Bros, would not agree to Simmons’ terms for purchase or to Simmons’ and Northwest’s terms for dividing up the Detroit market.
In concluding the termination “was caused by Northwest’s need to avoid employing two regional airlines where only one was required,” rather than any anti-competitive conduct, see at 600, the majority fails to consider all of the evidence in the record. Northwest’s own witnesses were unable to testify consistently concerning why Fischer Bros.’ contract was cancelled within hours of Simmons’ withdrawal of all offers. Nor did they consistently testify as to what Northwest knew at the time it terminated Fischer Bros.
Rassmusson first testified that he met with his superior, Executive Vice President of Marketing A.B. Magary, on September 24, recommended termination of Fischer Bros., and received approval from Magary, who “said that he would handle the logistics of the notification.” After Magary testified that he was out of the country from September 19 until the evening of September 25, that he did not participate in the decision to cancel Fischer Bros., and that the “decision on how to handle the contracts was really pretty much left to the lawyers. The lawyer in this case being Terry Hall,” Rassmusson changed his deposition testimony to say that he met on the 24th with attorney Hall and recommended termination to Hall, who approved and accepted the recommendation. Hall, however, denied that he participated in the decision to terminate Fischer Bros., and testified that his only involvement was drafting the termination notice at Rass-musson’s request.
Hall also testified that when he drafted the termination notice he knew that Simmons had been negotiating with Fischer Bros., that the negotiations had broken down, and that Simmons had withdrawn its offers to purchase Fischer Bros. This knowledge could only have come from Simmons. On reading and signing his deposition, however, Hall changed his testimony to reflect only that he was aware that negotiations had “broken down,” consistent with Rassmusson’s testimony that it was through Fischer Bros., not Simmons, that he learned of the result of the September 23 meeting. Fischer Bros.’ representatives deny having contact with Rassmusson between the time the meeting ended on the 23rd and the time they received the termination notice on the 24th, however.
These inconsistencies, coupled with the timing of the notices from Simmons and Northwest and Northwest’s admitted knowledge of the status of the negotiations between Simmons and Fischer Bros., in my view create a factual dispute concerning whether Simmons and Northwest agreed to eliminate Fischer Bros, from the Detroit regional market.5 Fischer Bros, ceased op*604eration when Northwest’s termination became effective on March 25, 1987. Its assets were sold to Midway Airlines in May, 1987, and it no longer competes in the Detroit regional market. Since March, 1985, each of the routes on which Fischer Bros, competed with Simmons is a monopoly for Northwest and/or Simmons, with the exception of Detroit-Cleveland, and service on all routes has been reduced.
Contrary to the majority, I believe these facts constitute sufficient evidence of “antitrust injury” to withstand a motion for summary judgment both with respect to plaintiffs challenge to the Northwest-Republic merger and with respect to plaintiffs claims of a conspiracy between Northwest and Simmons to restrain trade and to monopolize the Detroit regional market. I agree that in order to maintain a treble damage action under section 4 of the Clayton Act, a plaintiff must establish an injury “of the type the antitrust laws were intended to prevent ... that flows from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); McDonald v. Johnson & Johnson, 722 F.2d 1370, 1374 (8th Cir.), modified on other grounds, 722 F.2d 1370, 1388 (8th Cir.1983), cert. denied, 469 U.S. 870, 105 S.Ct. 219, 83 L.Ed.2d 149 (1984). See generally P. Areeda & H. Hovenkamp, Antitrust Law, para. 334.2a (Supp.1988). I also agree that to be successful, an antitrust plaintiff seeking damages must establish not only harm sufficient to satisfy the constitutional standing requirement of injury in fact, but must also establish it is a proper party to bring the action based upon an evaluation of the plaintiff’s harm, the alleged wrongdoing by the defendant, and the relationship between them. Associated General Contractors v. Carpenters, 459 U.S. 519, 535 & n. 31,103 S.Ct. 897, 907 & n. 31, 74 L.Ed.2d 723 (1983); South Dakota v. Kansas City Southern Industries, Inc., 880 F.2d 40, 45-46 (8th Cir.1989); McDonald, 722 F.2d at 1373-74.
At this stage of the proceedings, however, plaintiff is entitled to all reasonable inferences from the evidence presented and need only establish a genuine issue of material fact with regard to the existence of antitrust injury. See R. C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107-11 (2d Cir.1989); In re Worker’s Compensation Insurance Antitrust Litigation, 867 F.2d at 1560. Examination of each of plaintiff's claims reveals sufficient evidence of injury in my view to defeat defendant’s motion for summary judgment.
Assuming Fischer Bros, can prove its allegations of a conspiracy between Northwest and Simmons to eliminate Fischer Bros, as a competitor in the Detroit regional market, the injury to Fischer Bros, is direct, is accompanied by an improper motive, and is clearly the type of injury to competition which the antitrust laws were intended to prevent. Indeed, neither defendant even advanced the argument that lack of injury precluded plaintiff’s conspiracy claims.
Defendant Northwest did advance the argument that Fischer Bros, lacked standing to challenge the Northwest-Republic merger, alleging Fischer Bros, had suffered only indirect injury as a result of the merger. Fischer Bros, contends it was harmed by the merger as a competitor at the Detroit “hub,” because the merger gave Northwest sufficient market power at Detroit (75% of enplanements) to force Fischer Bros, from the market and to prevent its reentry. Fischer Bros, presented evidence that affiliation with a major carrier is essential to the survival of a commuter carrier, and that after the merger Northwest was essentially the only major carrier with a presence at Detroit.
In its application to the Department of Transportation in support of the merger, Northwest stated that it competed with commuter carriers such as Fischer Bros, in many domestic city pairs and argued that the merger would not foreclose competition *605because of the presence of these smaller carriers.6 While a competitor may not challenge a horizontal merger on the ground that the merged entity will be better able to compete against it or on the theory that it should be entitled to monopoly profits rather than the alleged monopolist, a competitor does have standing to challenge a merger which will result in monopoly power where there is also an allegation of post-merger predatory conduct such as predatory pricing or other predatory non-price strategies. See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 120-22, 107 S.Ct. 484, 495, 93 L.Ed.2d 427 (1986); P. Areeda & H. Hovenkamp, Antitrust Law, para. 340.2 at 360-68 (Supp.1988).
In R. C. Bigelow, Inc. v. Unilever N. V., 867 F.2d 102 (2d Cir.1989), for example, the Second Circuit found a competitor had standing to challenge the merger of two herbal tea companies on the theory that the merged company, which would enjoy an 84% market share, would be likely to eliminate competition in the herbal tea market by, inter alia, reducing the plaintiff competitor’s access to supermarket shelf space. Id. at 111. In Bigelow, the court even accorded plaintiff a presumption, in response to defendant’s motion for summary judgment, that such anticompetitive conduct would occur. Id.
No presumption of post-merger predatory conduct is needed in this case, because Fischer Bros, alleges Northwest actually used its post-merger monopoly power to eliminate Fischer Bros, as a competitor in the Detroit regional market. The elimination of a competitor through predatory acts is “antitrust injury.” Cf Consolidated Gold Fields v. Minorco, 871 F.2d 252, 257-58 (2d Cir.1989) (finding sufficient injury to challenge takeover where plaintiff company alleged acquiring company would limit its production; reduction in competition was “precisely the type [of injury] the antitrust laws were designed to protect against”).
The majority cites Northwest’s ability to terminate Fischer Bros, on six months’ notice, arguing Northwest would have terminated Fischer Bros, regardless of its post-merger market share because it was faced with two overlapping commuter services. But Northwest’s monopoly power is precisely, according to plaintiff, why Northwest was able successfully to eliminate competition when it conspired with Simmons to eliminate Fischer Bros, as a competitor. Fischer Bros.’ termination, in this case, constitutes “antitrust injury” because plaintiff has presented sufficient evidence to raise an inference that Northwest did not simply terminate Fischer Bros.; it used its market power in combination with another competitor to reduce competition at the Detroit hub. Cf. South Dakota v. Kansas City Southern Industries, Inc., 880 F.2d 40, 46, 49 (8th Cir.1989) (denying standing to State of South Dakota, which was neither competitor nor consumer of defendant’s, stating “[wjithout a doubt” that competitor had standing to raise antitrust claims).
While the majority also alludes to additional “extra-rigorous” factors relevant to a determination of the standing of a treble damage plaintiff, see note 7 supra at 599; see generally Associated General Contractors, 459 U.S. at 537-45, 103 S.Ct. at 908-12, Northwest did not rely on any of these other criteria to support the district court’s judgment. Rather, Northwest argued only that Fischer Bros.’ alleged injury was too “indirect.” I agree with the district court’s observation that this allegation alone, in the context of this case, does not provide a sound basis for granting summary judgment.
The district court also concluded, however, that Fischer Bros, was precluded from challenging the merger because of the judicial review provisions contained in section 1006(d) of the Federal Aviation Act. *606Northwest argues on appeal that the exclusive means of challenging the merger as a violation of the antitrust laws is through an appeal of the DOT’s order approving the merger. See 49 U.S.C.App. § I486.7
Northwest’s argument, based upon City of Tacoma v. Taxpayers, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958), fails, however, to consider the effect of the DOT’s refusal to exempt the merger from the antitrust laws pursuant to section 414 of the Act. See 49 U.S.C.App. § 1384. Under section 1384, the DOT, as part of its order approving transactions such as the Northwest-Republic merger,
may ... exempt any person affected by such order from the operations of the “antitrust laws” ... to the extent necessary to enable such person to proceed with the transaction specifically approved by the Board in such order and those transactions necessarily contemplated by such order, except that the Board may not exempt such person unless it determines that such exemption is required in the public interest.
49 U.S.C.App. § 1384 (emphasis added).
Section 1384 was enacted in 1978 along with amendments to the Federal Aviation Act which substantially deregulated the airline industry. See generally S.Rep. No. 95-631, 95th Cong. 2d Sess. 1 (1978). Prior to amendment in 1978, antitrust immunity was automatically conferred on any person affected by an order of the Civil Aeronautics Board (CAB), which had previously had jurisdiction to approve airline mergers, acquisitions, and other agreements.8 The Supreme Court had liberally construed this grant of immunity in Hughes Tool Co. v. TWA, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), to extend farther than the CAB itself desired.9
As a result of this decision, the CAB suggested in hearings on the 1978 legislation amending the Federal Aviation Act that it be given the power to limit the scope of the immunity conferred. See S.Rep. No. 95-631, 95th Cong. 2d Sess. 84-85 (1978). See generally H.Rep. No. 95-1211, 95th Cong. 2d Sess. 18 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 3737, 3754. The Senate bill granted the CAB this power and also limited the immunity conferred to that “necessary to enable such person to engage in the air transportation activities specifically approved by the Board.” See S.Rep. No. 95-631, 95th Cong. 2d Sess. 24 (1978) (text of proposed immunity section).
While the Senate version continued the automatic immunity concept, these amend*607ments were designed to allow the Board “to approve transactions for transportation purposes, but still refrain from conferring antitrust immunity on any or all aspects of the transaction.” Id. at 85 (emphasis added). In discussing the ability of the courts to entertain antitrust challenges to activities which the CAB had previously considered, sponsors of the legislation agreed that
the Board could, if it chose, approve of activities that it would not immunize. That is, that in the proper case, the Board might allow a merger or agreement to go forward but still decide to withhold antitrust immunity altogether.... [T]his is important because it will take a lot of responsibility for policing competitive fair play off the Board and put it back on the airline. The Board will not have to always choose between disapproval and antitrust immunity, and the parties will know that they cannot misbehave after initial approval and expect to use a Federal law as a shield against antitrust liability.
124 Cong.Rec. 10687 (April 18, 1978) (remarks of Sen. Kennedy).
The House version restricted grants of immunity even further by not automatically conferring such immunity on approved transactions. See H.Rep. No. 95-1211, 95th Cong. 2d Sess. 18 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News at 3754. Instead, the House bill conditioned any grant of immunity on the affirmative finding by the Board that such immunity was in the public interest. See id. Opponents of the House version argued the “removal of the automatic exemption from the antitrust laws ... once the Board has given approval to an air carrier agreement as in the public interest is unfortunate and creates ambiguity,” Minority Views of Rep. Stump, id. at 72, reprinted in 1978 U.S. Code Cong. & Admin.News at 3767, but the Conference Committee nonetheless adopted the House version. See House Conf.Rep. No. 95-1779, 95th Cong.2d Sess. 78 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 3773, 3792.
Northwest contends these amendments to the Act’s immunity provisions are irrelevant to consideration of whether section 1486 of the Act establishes the exclusive means for challenging the merger on antitrust grounds. See 49 U.S.C.App. § 1486. Northwest further contends that if the merger had been immunized, all of plaintiff’s antitrust claims would be barred. But this argument ignores Congress’ express intent to grant the DOT authority to limit the immunity granted to all, some, or none of the transaction it approves. See 49 U.S.C.App. § 1384.10
In my view, the judicial review provisions of the Federal Aviation Act should not be interpreted to preclude independent judicial action to enforce the antitrust laws where, as here, the agency has specifically declined to grant antitrust immunity to the approved transaction.11 The doctrine of exclusive jurisdiction is to be invoked only when a court finds that it has been totally ousted of jurisdiction because Congress, in enacting the regulatory statute, “intended to override the fundamental national policies embodied in the antitrust laws.” Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 1028, 35 L.Ed.2d 359 (1973). See generally 16E *608Business Organizations, Von Kalinowski, Antitrust Laws and Trade Regulation, § 44A.01[2] (1989).
While the statutory scheme concerning DOT’s approval of mergers is comprehensive, allowing an independent antitrust challenge to non-immunized airline mergers is consistent with Congress' intent, in the era of deregulation, to “take a lot of responsibility for policing competitive fair play off the [agency],” 124 Cong.Rec. 10687 (remarks of Sen. Kennedy), and to subject the airlines’ activities to the same antitrust standards applicable to unregulated industries. See H.Conf.Rep. No. 95-1779, 95th Cong. 2d Sess. 72-73 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 3773, 3788-89. See generally P. Areeda & H. Hovenkamp, Antitrust Law para. 223.2 (Supp.1988).12
Where immunity is granted, I agree that the court of appeals has exclusive jurisdiction to review the challenged action. But where immunity is neither requested by the carrier nor granted by the agency, district courts should be free to entertain antitrust challenges such as the plaintiff has presented in this case. In sum, I believe plaintiff is entitled to challenge the Northwest-Republic merger under Sections 1 and 2 of the Sherman Act and is entitled to a trial on its claims relating to an alleged agreement between Northwest and Simmons to eliminate plaintiff from the Detroit regional market. While I agree with the majority that plaintiff’s state law claims against Northwest were properly dismissed by the district court, I would reverse the district court’s grant of summary judgment on plaintiff’s antitrust claims and on its state law claims against defendant Simmons alone,13 and accordingly, I dissent.
. Airlines operating on a nationwide basis have developed "hubs," populous cities at which substantial numbers of an airline’s flights converge and offer connecting opportunities.
. Commuter carriers generally serve smaller communities with smaller aircraft. Commuter carriers which affiliate with a major carrier are able to use the major carrier’s logo and have access to the major carrier’s designator code shown in computerized reservation systems.
. The President of Simmons candidly admitted that Northwest’s representations "were a factor" in his thinking concerning whether to oppose the merger before the DOT.
. The two carriers serving the Minneapolis/St. Paul regional market eventually reached agreement on a division of that market.
. To withstand a motion for summary judgment, plaintiff must show "the inference of conspiracy is reasonable in light of the competing inference of independent action.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1985). Plaintiffs evidence does precisely that. Cf. In re Workers’ Compensation Insurance Antitrust Litigation, 867 F.2d 1552, 1560-61 (8th Cir.), cert. denied, -U.S. -, 109 S.Ct. 3247, 106 L.Ed.2d 593 (1989) (finding sufficient evidence to create a genuine issue of fact as to whether defendants entered into an agreement to boycott, coerce, or intimidate insurers to agree to uniform rate for worker’s compensation insurance); Apex Oil Co. v. DiMauro, 822 *604F.2d 246, 252-56 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987) (finding sufficient evidence of conspiracy based upon parallel behavior and evidence of telephone conversation between two defendants).
. Northwest argued before the DOT that commuter carriers can compete effectively even without affiliation with a major carrier or through affiliation with a major carrier at cities where the major carrier does not operate a hub. Northwest further argued that there are no barriers to the creation of a hub at Detroit by a competing major airline. These, of course, are questions of fact which cannot be resolved on a motion for summary judgment.
. Section 1486 provides, in relevant part:
(a) Any order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter ... shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within sixty days after the entry of such order....
******
(d) Upon transmittal of the petition to the Board or Secretary of Transportation, the court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of, in whole or in part, and if need be, to order further proceedings by the Board or Secretary of Transportation....
49 U.S.C.App. § 1486.
. The CAB’s antitrust and consumer functions were transferred to the DOT as of January 1, 1985. See Civil Aeronautics Board Sunset Act of 1984, Pub.L. No. 98-443, 98 Stat. 1703 (1984). The CAB had operated for many years under the automatic immunity provisions of section 1384 which, prior to amendment in 1978, had provided:
Any person affected by any order under [the Federal Aviation Act] shall be, and is hereby, relieved from the operation of the “antitrust laws" ... and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.
.The Court overturned an award of more than $145 million to TWA, which the airline alleged had resulted from its control by Hughes Tool Co. (Toolco). In its lawsuit, TWA alleged Tool-co had required TWA to purchase or lease airplanes from Toolco alone. The CAB had approved Toolco’s control over TWA in orders issued in 1944, 1948, 1950, and 1960, and had approved each acquisition or lease of aircraft by TWA from Toolco. 409 U.S. at 369, 379, 93 S.Ct. at 652, 657. The CAB argued before the Court that it had approved the arrangements only on the basis of a lack of showing of anticompetitive effects in the airline industry, not in the aircraft manufacturing industry, but the Supreme Court ruled the CAB had the authority to consider all aspects of a transaction and found Toolco immune from suit. Id. at 389, 93 S.Ct. at 661.
. Scholars agree that the task of resolving "those difficult situations in which antitrust enforcement appears to be coextensive with administrative regulation” is not an easy one. See 16E Business Organizations, Von Kalinowski, Antitrust Laws and Trade Regulations § 44A.01[1] at 44A-2 (1989). Whether phrased in terms of immunity or exclusive jurisdiction, the issue in this case is whether Congress intended to leave judgments about whether mergers violate the antitrust laws entirely to the agency (with review in the court of appeals), even when the agency declines to exempt the merger from the operation of the antitrust laws. See Id. at §§ 44.01, 44A.05 (discussing exclusive jurisdiction under the rubric of exemptions and immunities to the antitrust laws). See also K. Davis, Administrative Law Treatise § 22.9 at 116 (2d ed. 1983); P. Areeda & D. Turner, Antitrust Law, para. 223h (1978).
. "Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored,” and have only been found "in cases of plain repugnancy between the antitrust and regulatory provisions.” United States v. Philadelphia National Bank, 374 U.S. 321, 350-51, 83 S.Ct. 1715, 1734-35, 10 L.Ed.2d 915 (1963).
. It is also more consistent with actual enforcement of the antitrust laws, given Congress’ view of the agency’s record in this regard. As the Senate Report noted, the CAB tended to "identify its own success with the profitability of individual carriers” and had also tended to regard mergers as "a tool for insuring the financial well-being" of economically ailing air carriers. S.Rep. No. 95-631, 95th Cong.2d Sess. 4, 79 (1978).
. The district court dismissed plaintiff’s state law claims against Simmons for lack of sufficient evidence of an agreement between Simmons and Northwest. Because I find sufficient evidence of such an agreement to withstand a motion for summary judgment, I would reverse this dismissal, notwithstanding Simmons’ argument on appeal that plaintiff has abandoned its state law claims against Simmons. Plaintiff clearly has argued the sufficiency of the evidence to sustain its claim of an agreement between Simmons and Northwest, and its state law claims "rise or fall” on the basis of this issue. See n. 8 supra at 600.