dissenting.
In this appeal, NoDak asks simply that it be given the same rights as Liberty’s majority shareholder. Because the court today ignores Congress’s longstanding interest in protecting minority shareholders’ rights and allows an acquiring bank to treat minority shareholders differently than majority shareholders, I respectfully dissent.
The court correctly notes that the statute provides little help on this issue. In interpreting what the statute will or will not allow, however, we routinely consider the tradition that existed prior to the enactment of the statute in the expectation that should Congress intend to jettison such tradition, it will do so expressly. In this, ease, as noted by the Eleventh Circuit in Lewis v. Clark, 911 F.2d 1558, 1561 (11th Cir.1990) (per curiam), we are dealing with “a longstanding equity tradition of protection of minority shareholders in American jurisprudence.” .“I am convinced that Congress was aware of this tradition, and that if it had intended to depart from it, it would have left more traces of that intention than the [majority] has been able to find.” Aaron v. SEC, 446 U.S. 680, 712, 100 S.Ct. 1945, 1964, 64 L.Ed.2d 611 (1980) (Blackmun, J., concurring and dissenting). The majority has, in fact, found no traces that Congress intended to depart from this tradition, but bases its inequitable treatment of the minority shareholder in. this case on an unjustified obeisance to the Chicago School of Economics. The Comptroller’s reading of the statute is equally untenable.
Quoting Easterbrook and Fischel, the court determines that any such tradition has since been “jettisoned in favor of a rule that allow[s] the majority to freeze out minority shareholders.” Supra at 1424. What both the court and the Comptroller do, then, is determine what the Congress might do today given trends in the law since passage of the National Bank Act. I choose to consider what Congress had in mind when the Bank Act was passed, and in so doing, look to the longstanding tradition of protecting minority shareholders’ rights that existed at the time. *1426Those rights include the right to be treated on the same basis as the majority shareholder. Had Congress intended to allow minority shareholders to be forced to accept cash while allowing the majority to receive stock, it would have done so expressly. As it did not do so, I join the Eleventh Circuit in its belief that Congress would not have sanctioned such a merger and that “without express statutory authority, the Comptroller has no authority to approve a merger [that] requires holders of stock of equal standing to take different forms of consideration.” Lewis, 911 F.2d at 1561. Consequently, I dissent.