concurring:
While I join in the majority opinion, I believe its lengthy and scholarly discussion of the elements of these various antitrust claims, and AHCS’s corresponding factual allegations, may have the unintended effect of obscuring the underlying bases for our decision. Consequently, I write separately to emphasize the two points that are the essence of our holding. First, as the majority opinion persuasively demonstrates, two subsidiary corporations of the same parent corporation, as a general rule, cannot conspire to unreasonably restrain trade in violation of § 1 of the Sherman Act, or enter into an exclusive dealing arrangement violative of § 3 of the Clayton Act. The antitrust laws must recognize business reality and treat these corporations as a single economic entity.
Second, as to the rest of AHCS’s claims, although they are tenuous at best, and most likely meritless, they are sufficient to survive a motion to dismiss. As the majority opinion states, dismissal is not proper “merely because the court doubts that the plaintiff will ultimately prevail; so long as a plaintiff colorably states facts which, if proven, would entitle him to relief, the motion to dismiss should not be granted.” Op. p. 145, n. 8, quoting Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir.1982). Simply put, a plaintiff must be given a chance to prove his colorable factual allegations, even if it appears unlikely that he can do so. Here, the district court slighted AHCS of this chance and jumped the gun in dismissing these claims under Rule 12(b)(6). Thus, even in the face of the tenuity of these claims, reversal is appropriate.