dissenting in part and concurring in part.
I would dismiss this appeal for lack of jurisdiction, believing that the case in its present posture is prematurely here because the judgment sought to be reviewed is not yet final. Since the Court, however, holds that the case is properly before us, I consider it appropriate, after noting my dissent to this holding, to express my views on the merits because the issues are of great importance. On that aspect, I concur in the judgment of the Court but do not join its opinion, which I consider to go far beyond what is necessary to decide the case.
Jurisdiction.
The Court’s authority to entertain this appeal depends on § 2 of the Expediting Act of 1903. That statute, in its present form, provides (15 U. S. C. § 29):
“In every civil action brought in any district court of the United States under any of said [antitrust] Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.” (Emphasis added.)
The Act was passed by a Congress which thereby “sought ... to ensure speedy disposition of suits in equity brought by the United States under the Anti*358Trust Act.” United States v. California Cooperative Canneries, 279 U. S. 553, 558. This major policy consideration emerges clearly from the otherwise meager legislative history of the Act. See H. R. Rep. No. 3020, 57th Cong., 2d Sess. (1903); 36 Cong. Rec. 1679, 1744, 1747. It was in keeping with this purpose that “Congress limited the right of review to an appeal from the decree which disposed of all matters . . . and . . . precluded the possibility of an appeal to either [the Supreme Court or the Court of Appeals] . . . from an interlocutory decree.” United States v. California Cooperative Canneries, supra. For it was entirely consistent with its desire to expedite these cases for Congress to have eliminated the time-consuming delays occasioned by interlocutory appeals either to intermediate courts or to this Court.
By taking jurisdiction over this appeal at the present time, despite the fact that, even if affirmed, this case would doubtless reappear on the Court’s docket if the terms of the District Court’s divestiture decree are unsatisfactory to the appellant or to the Government, the Court is paving the way for dual appeals in all government antitrust cases where intricate divestiture judgments are involved. Whether or not such a procedure is advisable from the standpoint of judicial administration or practical business considerations — and I think such questions by no means free from doubt — I believe that it is contrary to the provisions and purposes of the Expediting Act, and that the construction now given the Act does violence to the accepted meaning of “final judgment” in the federal judicial system.
The judgment from which this appeal is taken directs the appellant to “relinquish and dispose of the stock, share capital and assets” of the G. R. Kinney Company and enjoins further interlocking interests between the two corporations. It does not specify how the divestiture is to be carried out, but directs appellant to file “a proposed *359plan to carry into effect the divestiture order”.and grants the Government 30 days following such filing in which to submit “opposition or suggestions thereto.” When considered in light of the District Court’s opinion, this reservation emerges as much more than a mere retention of jurisdiction for the purpose of ministerially executing a definite and precise final judgment. See, e. g., Ray v. Law, 3 Cranch 179; French v. Shoemaker, 12 Wall. 86, 98. In light of this Court’s remarks in United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 607-608, the District Court concluded that the particular form which the divestiture order was to take was a matter which “could have far-reaching effects and consequences,” 179 F. Supp., at 741, and that it would be appropriate for the court to conduct hearings on the manner in which the Kinney stock ought to be disposed of by the appellant. Hence it is not farfetched to assume that particular terms of the remedy ordered by the District Court will be contested, and that this Court may well be asked to examine the details relating to the anticipated divestiture. E. g., United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316.
The exacting obligation with respect to the terms of antitrust decrees cast upon this Court by the Expediting Act was commented upon only last Term. In United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, it was noted that it was the Court’s practice, “particularly in cases of a direct appeal from the decree of a single judge, ... to examine the District Court’s action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved.” 366 U. S., at 323; see International Boxing Club, Inc., v. United States, 358 U. S. 242, 253. In the present case the Court and the parties know nothing more of “this most significant phase of the case,” United States v. United States Gypsum Co., 340 U. S. 76, 89, than that Brown will generally be *360required to divest itself of any interest in Kinney. Exactly how this separation is to be accomplished has not yet been determined, and there is no way of knowing now whether both parties to the suit will find the decree satisfactory or whether one or both will seek further review in this Court.
Despite the opportunity thus created for separate reviews of these kinds of cases at their “merits” and “relief” stages, the Court holds that the judgment now in effect has “sufficient indicia of finality” {ante, p. 308) to render it appealable now, notwithstanding that the terms of the ordered divestiture have not yet been fixed. This conclusion is based upon three discrete considerations, none of which, in my opinion, serves to overcome the “final judgment” requirement of the Expediting Act, as that term has hitherto been understood in federal law.1
First. The Court suggests that any further proceedings to be conducted in the District Court are “sufficiently independent of, and subordinate to, the issues presented by this appeal” to permit them to be considered and reviewed separately. But this judicially created exception to the embracing principle of finality has never heretofore been utilized by this Court to permit separate review of a District Court’s decision on the underlying merits of a claim when the details of the relief that is to be awarded are yet uncertain. The present case does not present the possibility, as did Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, and Forgay v. Conrad, 6 How. 201, that a delay in appellate review would result in irreparable *361harm, equivalent in effect to a denial of any review on the point at issue. See 337 U. S., at 546; 6 How., at 204. Nor is this a case in which the complaint's prayers for relief are so diversified that the resolution of one branch of the case “is independent of, and unaffected by, another litigation with which it happens to be entangled.” Radio Station WOW, Inc., v. Johnson, 326 U. S. 120, 126; see Carondelet Canal Co. v. Louisiana, 233 U. S. 362, 372-373; Forgay v. Conrad, supra.
If the appellant were compelled to await the entry of a particularized divestiture order before being granted appellate review, it would suffer no irremediable loss; indeed, in this case the merger was allowed to proceed pendente lite, so any delay, to the extent that it could affect the parties, would benefit the appellant. Nor can it well be suggested that the particular conditions under which the divestiture is to be executed are matters that are only fortuitously “entangled” with the merits of the complaint. Despite the seemingly mandatory tone of the “divestiture” judgment now before us, the plain fact remains that it is by its own terms inoperative to a substantial extent until further proceedings are held in the District Court. Unlike the cases relied upon by the Court, therefore, this case comes up on appeal before the appellant knows exactly what it has been ordered to do or not to do. This is surely not the type of judgment “which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233; see Covington v. Covington First National Bank, 185 U. S. 270, 277.
Second. The Court finds significant the “character of the decree still to be entered in this suit.” Ante, p. 309. Since the order of full divestiture requires “careful, and often extended, negotiation and formulation,” ante, p. 309, it is suggested that a delay in carrying out its terms might render them impractical or unenforceable. Apart *362from the fact that this policy consideration is more appropriately addressed to the Congress than to this Court, it appears to me to call for a result directly contrary to that reached by the Court. For if the terms of the divestiture are indeed so difficult to formulate and so interrelated with market conditions, it is most unlikely that the decree to be issued by the District Court will turn out to be satisfactory to both parties. Consequently, on the Court’s own reasoning, a second appearance of this case on our docket is not an imaginative possibility but a reasonable likelihood. In stating that the divestiture portion of this judgment “is disputed here on an 'all or nothing’ basis,” and that “it is ripe for review now, and will, thereafter, be foreclosed,” ante, p. 309, the Court can hardly mean that either the appellant or the Government will be precluded from seeking review of the divestiture terms if it deems them unsatisfactory. Indeed, neither side on this appeal has addressed itself to the propriety of the divestiture remedy, as such, that is independently of the question whether the merger itself runs afoul of the Clayton Act.
Moreover, if it is delay between formulation of the decree and its execution that is thought to be damaging, what reason is there to believe that this delay or its hazards will be any greater if the entire case is brought up here once than if review is separately sought from the divestiture decree once its terms have been settled? Nor can it be maintained that if the merits are now affirmed then an appeal on the question of relief is improbable. For insofar as complex “negotiation and formulation” is a factor, the probability of an appeal is equally likely in either instance.
Third. The Court’s final reason for holding this judgment appealable is that similar judgments have often been reviewed here in the past with no issue ever having been raised regarding jurisdiction. But the cases are *363legion which have echoed the answer given by Chief Justice Marshall to a contention that the Court was bound on a jurisdictional point by its consideration on the merits of a case in which the jurisdictional question had gone unnoticed: “No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.” United States v. More, 3 Cranch 159, 172; see Snow v. United States, 118 U. S. 346, 354; Cross v. Burke, 146 U. S. 82, 87; Louisville Trust Co. v. Knott, 191 U. S. 225, 236; Nexo v. Oklahoma, 195 U. S. 252, 256; United States ex rel. Arant v. Lane, 245 U. S. 166, 170; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 379; United States v. L. A. Tucker Truck Lines, 344 U. S. 33, 38. The fact that the Court may, in the past, have overlooked the lack of finality in some of the judgments that came here for review in similar posture to this one does not now free it from the requirements of the Expediting Act. Nor does the fact that none of the cases reviewed in what now appears to have been an interlocutory stage was ever appealed again justify disregard of the statute. This history might point to the desirability of an amendment to the Expediting Act, but it does not make into a “final judgment” a decree which reserves for future determination the terms of the precise relief to be afforded.
The Court suggests that a “pragmatic approach” to finality is called for in light of the policies of the Federal Rules of Civil Procedure, which direct the “just, speedy, and inexpensive determination of every action.” Ante, p. 306. But this misconceives the nature of the issue that is presented. Whether this judgment is final and appeal-able is not a question turning on the Federal Rules of Civil Procedure or on any balance of policies by this Court. Congress has seen fit to make this Court, for reasons which are less than obvious, the sole appellate tribunal for civil antitrust suits instituted by the United *364States. In so doing, it has chosen to limit this Court’s reviewing power to “final judgments.” Whether the first of these legislative determinations, made in 1903, when appeal as of right to this Court was the rule rather than the exception, should survive the expansion in the Court’s docket and the development, pursuant to the Judiciary Act of 1925, of this Court’s discretionary certiorari jurisdiction, may never have been given adequate consideration by the Congress.2
At this period of mounting dockets there is certainly much to be said in favor of relieving this Court of the often arduous task of searching through voluminous trial testimony and exhibits to determine whether a single district judge’s findings of fact are supportable. The legal issues in most civil antitrust cases are no longer so novel or unsettled as to make them especially appropriate for initial appellate consideration by this Court, as compared with those in a variety of other areas of federal law. And under modern conditions it may well be doubted whether direct review of such cases by this Court truly serves the purpose of expedition which underlay the original passage of the Expediting Act. I venture to predict that a critical reappraisal of the problem would lead to the conclusion that “expedition” and also, over-all, more satisfactory appellate review would be achieved in *365these cases were primary appellate jurisdiction returned to the Court of Appeals, leaving this Court free to exercise its certiorari power with respect to particular cases deemed deserving of further review. As things now stand this Court must deal with all government civil antitrust cases, often either at the unnecessary expenditure of its own time or at the risk of inadequate appellate review if a summary disposition of the appeal is made. Further, such a jurisdictional change would bid fair to satisfy the very “policy” arguments suggested by the Court in this case. For the Courts of Appeals, whose dockets are generally less crowded than those of this Court, would then be authorized to hear appeals from orders such as the one here in question. Since this order grants an injunction against interlocking interests between Brown and Kinney, it would come within 28 U. S. C. § 1292 (a)(1) were this not a case “where a direct review may be had in the Supreme Court.”
So long, however, as the present Expediting Act continues to commend itself to Congress this Court is bound by its limitations, and since for the reasons already given the decree appealed cannot, in my opinion, be properly considered a “final judgment,” I think the appeal, at this juncture, should have been dismissed.
The Merits.
Since the Court nonetheless holds that the judgment is appealable in its present form, and since the underlying questions are far-reaching, I consider it a duty to express my view on the merits. On this aspect of the case I join the disposition which affirms the judgment of the District Court, though I am not prepared to subscribe to all that is said or implied in the opinion of this Court.
The question presented by this case can be stated in narrow and concise terms: Are the District Court’s conclusions that the effect of the Brown-Kinney merger may *366be, in the language of § 7 of the Clayton Act, “substantially to lessen competition, or to tend to create a monopoly” in “any line of commerce in any section of the country” sustainable? In other words, does the indefinite and general language in § 7 manifest a congressional purpose to proscribe a combination of this sort? Brown contends that in finding the merger illegal the District Court lumped together what are in fact discrete “lines of commerce,” that it failed to define an appropriate “section of the country,” and that when the case is properly viewed any lessening of competition that may be caused by the merger is not “substantial.” For reasons stated below, I think that each of these contentions is untenable.
The dispositive considerations are, I think, found in the “vertical” effects of the merger, that is, the effects reasonably to be foreseen from combining Brown’s manufacturing facilities with Kinney’s retail outlets. In my opinion the District Court’s conclusions as to such effects are supported by the record, and suffice to condemn the merger under § 7, without regard to what might be deemed to be the “horizontal” effects of the transaction.
1. “Line of Commerce.” — In considering both the horizontal and vertical aspects of this merger, the District Court analyzed the probable impact on competition in terms of three relevant “lines of commerce” — men’s shoes, women’s shoes, and children’s shoes. It rejected Brown’s claim that shoes of different construction or of different price range constituted distinct lines of commerce. Whatever merit there might be to Brown’s contention that the product market should be more narrowly defined when it is viewed from the vantage point of the ultimate consumer (whose pocketbook, for example, may limit his purchase to a definite price range), the same is surely not true of the shoe manufacturer. Although the record contains evidence tending to prove that a shoe manufacturing *367plant may be managed more economically if its production is limited to only one type and grade of shoe, the history of Brown’s own factories reveals that a single plant may be used in successive years, or even at the same time, for the manufacture of varying grades of shoes and may, without undue difficulty, be shifted from the production of children’s shoes to men’s or women’s shoes, or vice versa.
Because of this flexibility of manufacture, the product market with respect to the merger between Brown’s manufacturing facilities and Kinney’s retail outlets might more accurately be defined as the complete wearing-apparel shoe market, combining in one the three components which the District Court treated as separate lines of commerce. Such an analysis, taking into account the interchangeability of production, would seem a more realistic gauge of the possible anticompetitive effects in the shoe manufacturing industry of a merger between a shoe manufacturer and a retailer than the District Court’s compartmentalization in terms of the buying public. For if a manufacturer of women’s shoes is able, albeit at some expense, to convert his plant to the production of men’s shoes, the possibility of such a shift should be considered in deciding whether the market for either men’s shoes or women’s shoes can be monopolized or whether a particular merger substantially lessens competition among manufacturers of either product. See Adelman, Economic Aspects of the Bethlehem Opinion, 45 Va. L. Rev. 684, 689-691; cf. United States v. Columbia Steel Co., 334 U. S. 495, 510-511; but see United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 592.
The fact that § 7 speaks of the lessening of competition “in any line of commerce” (emphasis added) does not, of course, mean that the product market on which the effect of the merger is considered may be defined as narrowly *368or as broadly as the Government chooses to define it.3 The duty rests with the District Court, and ultimately with this Court, to determine what is the appropriate market on an appraisal of the relevant economic considerations. Discovering the product market is “a necessary predicate to a finding of a violation of the Clayton Act,” United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593, and the breadth of the statutory language provides no license for an abdication of this necessary function. In light of the production flexibility demonstrated by the undisputed facts in this case, I think the line of commerce by which the vertical aspects of the Brown-Kinney merger should be judged is the wearing-apparel shoe industry generally.
2. “Section of the Country.” — This merger involves nationwide concerns which sell and purchase shoes in various localities throughout the country, so that it appears that the most suitable geographical market for appraising the alleged anticompetitive effects of the vertical combination is the Nation as a whole. This finding of the District Court (limited to the vertical aspect of the merger) is not contested by Brown and is properly accepted here. One caveat is in order, however. In judging the anticompetitive effect of the merger on the national market, it must be recognized that any decline in competition that might result need not have a uniform effect throughout the entire country. It is sufficient if *369the record proves that as a result of the merger competition will generally be lessened, though its most serious impact may be felt in certain localities.
3. “Substantially to Lessen Competition.” — The remaining quéstion is whether the merger of Brown’s manufacturing facilities with Kinney’s retail outlets “may . . . substantially lessen competition” or “tend to create a monopoly” in the nationwide market in which shoe manufacturers sell to shoe retailers. The findings of the District Court, supported by the evidence, when taken together with undisputed facts appearing in the record, justify the conclusion that a substantial lessening of competition in the relevant market is a “reasonable probability.” S. Rep. No. 1775, 81st Cong., 2d Sess. 6 (1950).
On the date of the merger Kinney’s retail stores numbered 352, and this figure had increased to more than 400 by the time of the trial. Nearly all these stores sell men’s, women’s, and children’s shoes and are located in the downtown areas of cities of at least 10,000 population. In 116 of these cities, Kinney’s combined pairage sale of shoes for 1955 exceeded 10% of all shoes sold in the city during the year. Its total retail shoe sales during the year constituted 1.2% of the national total in terms of'dollar volume and 1.6% in terms of pairage. Of these shoes, only 20% were supplied by the Kinney manufacturing plants, the remainder coming from some 197 other sources.4
Prior to 1955 Kinney had bought none of its outside-source shoes from Brown, and its records for 1955 reveal that the year’s purchases were made from a diverse number of independent shoe manufacturers. There were 66 suppliers (including Brown) in that year each of whose total sales to Kinney exceeded $50,000, and only three of *370these (Brown, Endicott-Johnson Co., and Georgia Shoe Manufacturing Co.) were large companies whose output placed them among the 25 most productive nonrubber shoe manufacturers in the United States. Consequently, it appears that Kinney was a substantial purchaser of the shoes produced by many small independent shoe manufacturers throughout the country. In fact, the record affirmatively shows that at least five of Kinney’s suppliers, three of which are located in the State of New York, one in Pennsylvania, and one in New Hampshire, each relied upon Kinney to purchase more than 40% of its total production in 1955.
That the merger between Brown’s shoe production plants and Kinney’s retail outlets will tend to foreclose some of the large market which smaller shoe manufacturers found in sales to Kinney hardly seems open to doubt. This conclusion is supported by the following facts which emerge indisputably from the record: (1) In the shoe industry, as in many others, the purchase of a retail chain by a manufacturer results in an increased flow of the purchasing manufacturer’s shoes to the retail store. Hence independent shoe manufacturers find it more difficult to sell their shoes to an acquired retail chain than to an independent one. (2) The result of Brown’s earlier acquisition of two retail chains was, in each instance, a substantial increase in the quantity of Brown shoe purchases by the previously independent chains.5 *371(3) The history of many of Brown’s plants proves that they may be readily adapted to the production of the grade and style of shoes customarily sold in Kinney stores.6 (4) Although Brown supplied none of Kinney’s requirements before the merger, it was supplying almost 8% of these requirements just two years thereafter.
The dollar volume of Kinney’s outside shoe purchases in 1955 was between 16 and 17 million dollars, and this amount had increased to 19.4 million by 1957. While Kinney was making only about 1.2% of the total retail dollar sales in the United States in 1955, that percentage can hardly be deemed an accurate reflection of its proportion of nationwide shoe purchases by retailers since the retail-sales figure is based on a computation that includes all retail stores, whether or not they were vertically integrated or otherwise affiliated. In terms of available markets for independent shoe manufacturers, the percentage of Kinney’s purchases must have been substantially larger — though the precise figure is unavailable on the record before us.7
If the controlling test were, as it may be under the similar language of § 3 of the Clayton Act, one of "quanti*372tative substantiality,” compare Standard Oil Co. v. United States, 337 U. S. 293, with Tampa Electric Co. v. Nashville Coal Co., 365 U. S. 320, the probable foreclosure of independent manufacturers from this substantial share of the available retail shoe market would be enough to render the vertical aspect of this merger unlawful under § 7. But since the merger can be shown to have an injurious effect on competition among manufacturers and among retailers, it is unnecessary to consider whether the Standard Stations formula is applicable.
The vertical affiliation between this shoe manufacturer and a primarily retail organization is surely not, as the dissenters thought the contractual tie in Standard Stations to be, “a device for waging competition” rather than “a device for suppressing competition.” 337 U. S., at 323. Since Brown is able by reason of this merger to turn an independent purchaser into a captive market for its shoes it inevitably diminishes the available market for which shoe manufacturers compete. If Brown shoes replace those which had been previously produced by others, the displaced manufacturers have no choice but to enter some other market or go out of business. Since all manufacturers, including Brown, had competed for Kinney’s patronage when it was unaffiliated, Brown’s merger with Kinney potentially withdraws a share of the market previously available to the independent shoe manufacturers.
Not only may this merger, judged from a vertical standpoint, affect manufacturers who compete with Brown; it may also adversely affect competition on the retailing level. With a large manufacturer such as Brown behind it, the Kinney chain would have a great competitive advantage over the retail stores with which it vies for consumer patronage. As a manufacturer-owned outlet, the Kinney store would doubtless be able to sell its shoes at a *373lower profit margin and outlast an independent competitor. The merger would also effectively prevent the retail competitor from dealing in Brown shoes, since these might be offered at lower prices in Kinney stores than elsewhere.8
Brown contends that even if these anticompetitive effects are probable, they touch upon an insignificant share of the market and are not, therefore, “substantial” within the meaning of § 7. Our decision in Tampa Electric Co. v. Nashville Coal Co., 365 U. S. 320, is cited as authority for the proposition that a foreclosure of about 1% of the relevant market is necessarily insubstantial. But the opinion in Tampa Electric carefully noted that “substantiality in a given case” depends on a variety of factors. 365 U. S., at 329. Two of the considerations that were mentioned were “the relative strength of the parties” and “the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein.” Ibid. When, as here, the foreclosure of what may be considered a small percentage of retailers’ purchases may be caused by the combination of the country’s third largest seller of shoes with the country’s largest family-style shoe store chain, and when the volume of the latter’s purchases from independent manufacturers in various parts of the country is large enough to render it probable that these suppliers, if displaced, will have to fall by the wayside, it cannot, in my opinion, be said that the effect on the shoe industry is “remote” or “insubstantial.”
I reach this result without considering the findings of the District Court respecting the trend in the shoe industry towards “oligopoly” and vertical integration. The *374statistics in the record fall short of convincing me that any such trend exists.9 I consider the District Court’s judgment warranted apart from these findings.
Accordingly, bowing to the Court’s decision that the case is properly before us, I join the judgment of affirmance.
“A final judgment is one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness, for giving effect to the judgment and leaves nothing to be done in the cause save to superintend, ministerially, the execution of the decree.” City of Louisa v. Levi, 140 F. 2d 512, 514. See, e. g., Grant v. Phoenix Ins. Co., 106 U. S. 429; Taylor v. Board of Education, 288 F. 2d 600.
As the Court noted in United States v. E. I. du Pont de Nemours & Co., 351 U. S. 377, 393, “one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product.” If the Government were permitted to choose its "line of commerce” it could presumably draw the market narrowly in a case that turns on the existence vel non of monopoly power and draw it broadly when the question is whether both parties to a merger are within the same competitive market.
The schedule in the record of Kinney’s outside shoe suppliers for the calendar year 1955 lists 319 vendors, but 122 of these supplied less than $1,000 worth of goods during the year.
In 1951 Brown purchased the Wohl Shoe Company, which operated leased shoe departments in department stores throughout the country. Before its acquisition of Wohl, Brown had supplied 12.8% of Wohl’s shoe requirements; by 1957, it was supplying 33.6% of Wohl’s needs.
In 1953, Brown purchased a partial interest in a small chain of retail stores in Los Angeles known as Wetherby-Kayser. Before this purchase, Brown had supplied 10.4% of Wetherby’s shoes; within one year this percentage increased to almost 50%.
In addition, it appears from the record that shortly after the merger was effected, Kinney abandoned its earlier policy of selling only Kinney-brand shoes (80% of which were “made up” for it by its manufacturers) and began selling a considerable number of Brown’s branded and advertised shoes. Along with the indications in the record that Kinney was beginning also to sell higher-priced shoes in its suburban outlets, this suggests that Brown could supply much of Kinney’s needs with only a minimal additional capital investment.
The existence of such gaps in the record make a fair assessment of the effects of this merger more difficult than it would otherwise be. One of the reasons why I would not consider the horizontal aspect of this merger is my conviction that the data supplied by the Government is entirely inadequate for a proper evaluation of the impact of the horizontal merger on competition.
The change in Kinney policy whereby it now carries shoes bearing the Brown brand (see note 6, supra) tends to make retailer competition still more difficult.
In terms of bare numbers, the quantity of retail outlets owned or controlled by the major manufacturers has undoubtedly been increasing since 1947. But much of the data in the record is incomplete in this regard because it is based on varying standards. Thus, while the Government argues that the increase in percentage of national retail sales by shoe chains owning 101 or more outlets from 20.9% in 1948 to 25.5% in 1954 proves the trend toward “oligopoly,” the appellant’s statistics, founded upon retail sales by all outlets (including general merchandise and clothing stores), show that retail sales by chains of 11 or more stood at a constant 19.5% of national dollar volume in both 1948 and 1954. Moreover, the apparent decline in the proportional share of the country’s shoe needs supplied by the largest manufacturers between 1947 and 1955 belies any claim that shoe production is becoming “oligopolistic.” Whereas the largest four manufacturers supplied 25.9% of the Nation’s needs in 1947, the largest eight supplied 31.4%, and the largest 15 supplied 36.2%, in 1955 the equivalent percentages were 22%, 27%, and 32.5%.
There is no suggestion in the record as to whether earlier purchases of retail chains by shoe manufacturers reduced the number of independent manufacturers or otherwise harmed competition. Consequently, while the record does establish that manufacturers have been increasing the number of their retail outlets, it is entirely silent on the effects of this vertical expansion.