dissenting.
That the facts found by the Commission are a violation of § 7 of the Clayton Act is not questioned. Under § 11, 38 Stat. 730, (U. S. C., Title 15, § 21), the findings of the Commission “if supported by testimony ” and the inferences which it may reasonably draw from the facts proved or admitted, are conclusive upon us. See Federal Trade Commission v. Pacific Paper Ass’n, 273 U. S. 52. Congress has thus forbidden the substitution of the' judgment of courts for that of the Commission where it is founded upon evidence. Conforming- to this requirement I cannot say that its conclusions here lack the prescribed support. Even without such statutory limitation this Court will not set aside the findings of an administrative board or commission, upheld, as in the present case, by the reviewing court below, unless the record establishes that clear and unmistakable error has been committed. Cincinnati, &c. Ry. Co. v. Interstate Commerce Comm., 206 U. S. 142, 154; Cincinnati, N. O. & T. Ry. v. Interstate Commerce Comm., 162 U. S. 184, 194; Illinois-Central R. Co. v. Interstate Commerce Comm., 206 U. S. 441, 466.
The opinion of the Court and the general testimony of petitioner’s officers of their conclusions that there was no competition between the two corporations (see United *304States v. Trenton Potteries Co., 273 U. S. 392) seem proceed on the assumption that manufacturers, each engaged in marketing a product comparable in price and ...adapted to the satisfaction of the same need, do not compete if they do not sell to the same distributors.
Without stating it in detail, there appears to me to be abundant evidence that the competitive products, made by two of the largest shoe manufacturers in the world, reached the same local communities through different agencies of distribution; the one, of petitioner, through sales directly to retailers throughout the United States, the other, of the McElwain Company, through sales in thirty-eight states, chiefly to wholesalers located in cities, who in turn sold to the retail trade. From detailed evidence of this type the Commission drew, as I think it reasonably might, the inference that the rival products, through local retailers, made their appeal to the same buying public and so were competitive. From a comparative study of the statistics of sales, the Commission might also, I think, reasonably have found that the McElwain Company was successfully competing, by securing by far the larger proportion of the trade in this type of shoe, its gross sales of dress shoes in 1920 being more than $33,000,000 and in 1921 more than $15,000,000, as compared with petitioner’s sales of its similar dress shoes of approximately $2,500,000.
No useful purpose would be served by reviewing the evidence at length. To refer to only two of the many items which support the findings of the Commission, the fact; relied upon, that petitioner, in the year ending May 31, 1921, sold only 52-5/12 dozen pairs of the competing shoes to dealers patronizing the McElwain Company, would seem to be without significance in the light of other evidence that in one state, Missouri, where petitioner sold its product to 4,801 of the 5,150 retail shoe dealers in. the state, the McElwain Company sold in the same *305year, chiefly through wholesalers and independent jobbers, 25,669 dozen pairs of the competing product. It appears that in 1921 petitioner sold its shoes to every retailer in Kentucky, Tennessee and Texas. In that year, when the value of the gross sales of the McElwain Company had been cut in half by business depression, it sold in those states 8,791 dozen pairs of its competing product, chiefly through independent jobbers, in addition to its sales in that territory through wholesale houses at Columbus, Ohio, and Chicago.
Apart from the more general testimony that both companies sold extensively in the same states and in the same cities, the inference from this evidence seems irresistible that in these states, as was the case in others,* the competing products were not only offered, through different systems of distribution to the same retailers, but were by them offered and sold to the ultimate, consumers in their communities. Both products being made and suitable for the. same use, the fact that each presented some minor advantages over the other, it might reasonably be inferred, would tend to increase, rather than diminish the competition. In fact, the chairman of petitioner’s board of directors testified that its 500 salesmen were unsuccessful in their efforts to increase the sales of its Patriot Brand of dress shoes (the alleged competitive product) above about 3,000 pairs a day because they were unable to convince retailers of the superiority of petitioner’s more serviceable dress shoes over the better *306looking dress shoes of the type manufactured by the McElwain Company.
Nor am I able to say that the McElwain Company, for the stock of which petitioner gave its own stock having a market value of $9,460,000, was then in such financial straits as to preclude the reasonable inference by the Commission that its business, conducted either through a receivership or a reorganized company, would probably continue to compete with that of petitioner. See Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 356, 357. It plainly had large value as a going concern, there was no evidence that it would have been worth more or as much if dismantled, and there was evidence that the depression in the shoe trade in 1920-1921 was then a passing phase of the business. For these reasons and others stated at length in the opinion of the court below, I think the judgment should be affirmed.
Mr. Justice Holmes and Mr. Justice Brandéis concur in this opinion.The petitioner sold to three retail dealers in every four in Illinois. The McElwain Company sold 9547 dozen pairs of competing shoes to independent jobbers and retailers in that state. In addition, an affiliated wholesale house located in Chicago sold about 18,000 dozen pairs. In California, where the International Shoe Company sold to seven retail dealers- in every ten, the McElwain Company sold 1586 dozen pairs to retailers and independent jobbers; and an affiliated wholesaler located at San Francisco sold, almost wholly within the state, about 10,000 dozen pairs of the competing shoes,