dissenting.
I suspect that no one will be more surprised than the Government to find that the Clayton Act has carried the day for its case in this Court.
In response to an apparently accelerating trend toward concentration in the commercial banking system in this country, a trend which existing laws were evidently ill-suited to control, numerous bills were introduced in Congress from 1955 to 1960.1 During this period, the Department .of Justice and the federal banking agencies2 advocated divergent methods of dealing with the competitive aspects of bank mergers, the former urging the extension of § 7 of the Clayton Act to cover such mergers and the latter supporting a regulatory scheme under which the effect of a bank merger on competition would be only one of the factors to be considered in determining whether the merger would be in the public interest. The Justice Department’s proposals were repeatedly rejected by Congress, and the regulatory approach of the banking agencies was adopted in the Bank Merger Act of 1960. See infra, pp. 379-383.
Sweeping aside the “design fashioned in the Bank Merger Act” as “predicated upon uncertainty as to the scope of § 7” of the Clayton Act (ante, p. 349), the Court today holds § 7 to be applicable to bank mergers and concludes that it has been violated in this case. I respectfully submit that this holding, which sanctions a remedy *374regarded by Congress as inimical to the best interests of the banking industry and the public, and which will in large measure serve to frustrate the objectives of the Bank Merger Act, finds no justification in either the terms of the 1960 amendment of the Clayton Act or the history of the statute.
I.
The key to this case is found in the special position occupied by commercial banking in the economy of this country. With respect to both the nature of the operations performed and the degree of governmental supervision, involved, it is fundamentally different from ordinary manufacturing and mercantile businesses.
The unique powers of commercial banks to accept demand deposits, provide checking account services, and lend against fractional reserves permit the banking system as.a whole to create a supply of “money,” a function which is indispensable to the maintenance of the structure of our national economy. And the amount of the funds held by commercial banks is very large indeed; demand deposits alone represent approximately three-fourths of the money supply in the United States.3 Since a bank’s assets must be sufficiently liquid to accommodate demand withdrawals, short-term commercial and industrial loans are the major element in bank portfolios,, thus making commercial banks the principal source of short-term business credit. Many other services are also provided by banks, but in these more or less collateral areas they receive more active competition from other financial institutions.4
*375Deposit banking operations affect not only the volume of money and credit,- but also the value of the dollar and the stability of the currency system. In this field, considerations other than simply the preservation of competition are relevant; Moreover, commercial banks áre entrusted with the safekeeping of large amounts of funds belonging to individuals and corporations. Unlike the ordinary investor, these depositors do not regard their funds as subject to a risk of loss and, at least in the case of demand depositors, they do not receive a return for taking such a risk. A bank failure is a community disaster; its impact first strikes the bank's depositors most heavily, and then spreads throughout the economic life of the community.5 Safety and soundness of banking practices are thus critical factors in any banking system.
The extensive blanket of state and federal regulation of commercial banking, much of which is aimed at limiting competition, reflects these factors. Since the Court's opinion describes, at some length, aspects of the supervision exercised by the federal banking agencies {ante, pp. 327-330), I do no more here than point out that, in my opinion, such regulation evidences a plain design grounded, on solid economic considerations to deal with banking as a specialized field.
This view is confirmed by the Bank Merger Act of 1960 and its history.
Federal legislation dealing with bank mergers6 dates from 1918, when Congress provided that, subject to the *376approval of the Comptroller of the Currency, two or more national banks could consolidate to form a new national bank;7 similar provision was made in 1927 for the consolidation of a state and a national bank resulting in a national bank.8 In 1952 mergers of national and state banks into national banks were authorized, also conditioned on approval by the Comptroller of the Currency.9 In 1950 Congress authorized the theretofore prohibited10 merger or consolidation of a national bank with a state bank when the assuming or resulting bank would be a state bank.11 In addition, the Federal Deposit Insurance Act was amended to require the approval of the FDIC for all mergers and consolidations between insured and' noninsured banks, and of specified federal banking agencies for conversions of insured banks into insured state banks if the conversion would result in the capital stock or surplus of the newly formed bank being less than that of the converting bank.12 The Act further required insured banks merging with insured state banks to secure the approval of the Comptroller of the Currency if the assuming bank would be a national bank, and the *377approval of the Board of Governors of the Federal Reserve System and the FDIC, respectively, if the assuming or resulting bank would be a state member bank or nonmember insured bank.13
None of this legislation prescribed standards by which the appropriate federal banking agencies were to be guided in determining the significance to be attributed to the anticompetitive effects of a proposed merger. As previously noted (supra, p. 373), Congress became increasingly concerned with this problem in the 1950’s. . The antitrust laws apparently provided no solution; in only one case prior to 1960, United States v. Firstamerica Corp., Civil No. 38139, N. D. Cal., March 30,1959, settled by consent decree, had either the Sherman or Clayton Act been invoked to attack a commercial bank merger.
, Indeed the inapplicability to bank mergers of § 7 of the Clayton Act, even after it was amended in 1950, was, for a time, .an explicit premise on which the Department of Justice performed its. antitrust duties. In passing upon an application for informal clearance of a bank merger in 1955, the Department stated:
“After a complete consideration of this matter, we have concluded that this Department would not have jurisdiction to proceed under section 7 of the Clayton Act. For this reason this Department does not presently plan to take any action on this matter.” Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., Ser. 3, pt. 3, p. 2141 (1955).
*378And in testifying before the Senate Committee on Banking and Currency in 1957 Attorney General Brownell, speaking of bank mergers, noted:
“On the basis of these provisions the Department of Justice has concluded, and all apparently agree, that asset acquisitions by banks are not covered by section 7 [of the Clayton Act] as amended in 1950.” Hearings on the Financial Institutions Act of 1957 before a Subcommittee of the Senate Committee on Banking and Currency, 85th Cong., 1st Sess., pt. 2, p. 1030 (1957).
Similar statements were-repeatedly made to Congress by Justice Department representatives in the years prior to the enactment of the Bank Merger Acjt.14
The inapplicability of § 7 to bank mergers was also an explicit basis on which Congress acted in passing the Bank Merger Act of 1960. The Senate Report on S. 1062, the bill that was' finally enacted, stated:
“Since bank mergers are customarily, if not invariably, carried out by asset acquisitions, they are exempt from section 7 of the Clayton Act. (Stock acquisitions by bank holding companies, as distinguished from mergers and consolidations, are subject to both the Bank Holding Company Act of 1956 and sec. 7 of the Clayton Act.)” S. Rep. No. 196, 86th Cong., 1st Sess. 1-2 (1959). ■
“In 1950”(64 Stat. 1125) section 7 of the Clayton, Act was amended to correct these deficiencies. Acquisitions of assets were included within the section, *379in addition to stock acquisitions, but only in the case of corporations subject to the jurisdiction of the Federal Trade Commission (banks, being subject to the jurisdiction of the Federal Reserve Board for purposes of the Clayton Act by virtue of section 11 of that act, were not affected).” Id., at 5.15
During the floor debates Representative Spence, the Chairman of the House Committee on Banking and Currency, recognized the same difficulty: “The Clayton Act is ineffective as to bank mergers because in the case of banks it covers only stock acquisitions and bank mergers are not accomplished that way.” 106 Cong. Rec. 7257 (1960).16
But instead of extending the scope of § 7 to cover bank mergers, as numerous proposed amendments to that section were designed to accomplish,17 Congress made the *380deliberaté policyjudgment that “it is impossible to subject bank mergers to the simple rule of section 7 of the Clayton Act. Under that act, a merger would be barred, if it might .tend substantially to lessen competition, regardless of the effects on the public interest.” 105 Cong. Rec. 8076 (1959) (remarks of Senator Robertson, a-sponsor of S. 1062). Because of the peculiar nature of the commercial banking industry, its crucial role in the economy, and its intimate connection, with the fiscal and monetary operations of the Government, Congress rejected the notion that the general economic and business premises of the Clayton Act should be the only considerations applicable to this field. Unrestricted bank competition was thought to have been a major cause of the panic of 1907 and of the bank failures of the 1930’s,18 and was regarded as a highly undesirable condition to impose on banks in the future:
“Banking is too important to depositors, to borrowers, to the Government, and the public generally, to permit unregulated and unrestricted competition in that field.
*381“The antitrust laws have reflected an awareness of the difference between banking and other regulated industries on the one hand, and ordinary unregulated industries and commercial enterprises on the other hand.” 106 Cong. Rec. 9711 (I960) (remarks of Senator Fulbright, a sponsor of S. 1062).
“It is this distinction between banking and other businesses which justifies different treatment for bank, mergers and other mergers. It was this distinction that led the Senate to reject the flat prohibition of the Clayton Act test which applies to other mergers.-” Id., at 9712.19
Thus the Committee on Banking and Currency recommended “continuance of the existing exemption from section 7 of the Clayton Act.” 105 Cong. Rec. 8076 (1959). Congress accepted this recommendation; it decided to handle the problem of concentration in commercial banking “through banking laws, specially framed to fit the particular needs of the field . . . .” S. Rep. No. 196, 86th Cong., 1st Sess. 18 (1959); As finally enacted in 1960, the Bank Merger Act embodies the regulatory approach advocated by the banking agencies, vesting in them responsibility for its administration and placing the scheme within the framework of existing banking laws as an amendment to § 18 (c) of the Federal Deposit Insurance Act, 12 U. S. C. (Supp. IV, 1963), § 1828 (c).20 It maintains the latter Act’s requirement of advance approval by the appropriate- federal agency for mergers between insured banks and between insured and noninsured *382banks {supra, pp. 375-377), but establishes that such approval is necessary in every merger of this type. 'To aid the respective agencies in determining whether to approve a merger, and in “the interests of uniform standards” (12 U. S. C. (Supp. IV, 1963) § 1828 (c)), the Act requires the two agencies not making the particular decision and the Attorney General to submit to the immediately responsible agency reports on the .competitive factors involved. It further provides that in addition to considering the banking factors examined by the FDIC in connection with applications to become an insured bank, which focus primarily on matters of safety and soundness,21 the approving agency “shall also take into consideration the effect of the transaction on competition (including any. tendency toward monopoly), and shall not approve the transaction unless, after considering all of such factors, it .finds the transaction to be in the public interest.” 12 U. S. C. (Supp. IV, 1963) § 1828 (c).
The congressional purpose clearly emerges from the terms of the statute and from the committee reports, hearings, and floor debates on the bills. Timé and again it was repeated that effect on competition was not to be the controlling factor in determining whether to approve a bank merger, that a merger could be' approved as being in the public interest even though it would cause a substantial lessening of competition. The following statement is typical:
“The committee wants to make crystal clear its intention that the various banking factors in any par*383ticular case may be held to outweigh the competitive factors, and that the competitive factors, however favorable or unfavorable, are not, in and of themselves, controlling on the decision. And, of course, the banking agencies are not bound in their consideration of the competitive factors by the report of the Attorney General.” S. Rep. No. 196,86th Cong., 1st Sess. 24 (1959); id., at 19, 21.22
The foregoing statement also shows that it was the congressional intention to place the responsibility for approval squarely on the banking agencies-; the report of the Attorney General on the competitive aspects of a merger was to be advisory only.23 And there was deliberately omitted any attempt to specify or restrict the kinds of circumstances in which the agencies might properly determine that a proposed merger would be in the public interest notwithstanding its adverse effect on competition.24
*384What Congress has chosen to do about mergers and their effect on competition in the highly specialized field of commercial banking could not be more “crystal clear.” {Supra, p. 382.) But in the face of overwhelming evidence to the contrary, the Court, with perfect equanimity, finds “uncertainty” in the foundations of the Bank Merger Act {ante, p. 349) and on this premise puts it aside as irrelevant to the task of construing the scope of § 7 of the Clayton Act.
I am unable to conceive of a more inappropriate case in which to overturn the considered opinion of all concerned as to the reach of prior legislation.25 For-10 years everyone — the department responsible for antitrust law enforcement, the banking industry, the Congress, and the bar — proceeded on the assumption that the 1950 amendment of the Clayton Act did not affect bank mergers. This assumption provided a major impetus to the enactment of remedial legislation, and Congress, when it finally settled on what it thought was the solution to the problem at hand, emphatically rejected the remedy now brought to life by the Court.
The result is, of course, that the Bank Merger Act is almost completely nullified; its enactment turns out to have been an exorbitant waste of congressional time and energy. As the present case illustrates, the Attorney General’s report to the designated banking agency is no longer truly advisory, for if the agency’s decision is not *385satisfactory .a § 7 suit may be commenced immediately.26 The bank merger’s legality will then be judged solely from its competitive aspects, unencumbered by any considerations peculiar to banking.27 And if such a suit were deemed to lie after a bank merger has been consummated, there would then be introduced into this field, for the first time to any significant extent, the threat of divestiture of assets and all the complexities and disruption attendant upon the use of that sanction.28 The only vestige of the Bank Merger Act which remains is that the banking agencies will have an initial veto.29
*386This frustration of a manifest congressional design is, in my view, a most unwarranted intrusion upon the legislative domain. I submit that whatever may have been the congressional purpose in 1950, Congress has now so plainly pronounced its current judgment that bank mergers are not within the reach of § 7 that-this Court is duty bound to effectuate its choice.
But I need not rest on this proposition, for, as will now be shown, there is nothing in the. 1950 amendment to § 7 or its legislative history to support the conclusion that Congress even then intended to subject bank mergers to this provision of the Clayton Act.
II.
Prior to 1950, "§ 7 of the Clayton Act. read, in pertinent part, as follows:
“That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce,’where.the effect of *387such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.”
In 1950 this section was amended to read (the major amendments being indicated in italics):
“That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole, or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
If Congress did intend the 1950 amendment to reach bank mergers, it certainly went at the matter in a very peculiar way. While prohibiting asset acquisitions having the anticompetive effects described in § 7, it limited the applicability of that provision to corporations subject to the jurisdiction of the Federal Trade Commission, which does not include banks. And it reenacted the stock-acquisition provision in the very same language which — as it was fully aware — had been interpreted not to reach the type of merger customarily used in the banking industry. See infra, pp. 389-393. In the past this Court has drawn the normal inference that such a reenactment indicates congressional adpption of the prior judicial statutory construction. E. g., United States v. Dixon, 347 U. S. 381; Overstreet v. North Shore Corp., 318 U. S. 125, 131-132.
*388In this instance, however, the Court.holds that the stock-acquisition provision underwent an expansive metamorphosis, so that it now embraces all mergers or consolidations involving an exchange of stock. Since bank mergers usually, if not always, do involve exchanges of stock, the effect of this construction is to rob the Federal Trade Commission provision relating to asset acquisitions of all force as a substantive limitation upon the scope of § 7; according to the Court the .purpose of that provision was merely to ensure the Commission’s role in the enforcement of § 7. Ante, pp. 346-348. In short, under this reasoning bank mergers to all intents and purposes are fully within the reach of § 7.
A more circumspect look at the Í950 amendment of § 7 and its background will show that this construction is not tenable.
The language of the stock-acquisition provision itself is hardly congenial to the Court’s interpretation. The PNB-Girard merger is technically a consolidation, governed by § 20 of the national banking laws, 12 U. S. C. (Supp. IV, 1963). § 215. Under that section, the corporate existence of both PNB and Girard, all of their rights, franchises, assets, and liabilities, would be automatically vested in the resulting bank, which would operate under the PNB charter. PNB itself would acquire nothing. Rather, the two banks would be creating a new entity by the amalgamation of their properties, and the subsequent conversion of Girard stock (which would then represent ownership in a nonfunctioning entity) into stock of the resulting bank would simply be part of the mechanics by which ownership in the new entity would be reflected. Clearly this is not a case of a corporation acquiring the stock of another functioning corporation, which is the only situation where “the effect of ... [a stock] acquisition may be substantially to lessen competition.” (Emphasis added.)
*389There are further crucial differences between a merger and a stock acquisition. A merger normally requires public notice and the approval of the holders of two-thirds of the outstanding shares of each corporation, and dissenting shareholders have the right to receive in cash the appraised value of their shares.30 A purchase of stock may be done privately, and the only approval involved is that of the individual parties to the transaction. Unlike a merged company, a corporation whose stock is acquired usually remains in business as a subsidiary of the acquiring corporation.31
The Government, however, contends that a merger more closely resembles a stock acquisition than an asset acquisition because of one similarity of central importance: the acquisition by one corporation of an immediate voice in the management of the business of another corporation. But this is obviously true a fortiori of asset acquisitions of sufficient magnitude to fall within the prohibition of § 7; if a corporation buys the plants, equipment, inventory, etc., of another corporation, it acquires absolute control over, not merely a voice in the management of, another business.
The legislative history of the 1950 amendment also unquestionably negates any inference that Congress in*390tended to reach bank mergers. It is true that the purpose was “to plug a loophole” in § 7 (95 Cong. Rec. 11485 (1949) (remarks of Representative Celler)). But simply to state this broad proposition does not answer the precise questions .presented here: what was the nature of the loophole sought to be closed; what were the means chosen to close it?
The answer to the latter question is unmistakably indicated by the relationship between, the 1950 amendment and previous judicial decisions. In Arrow-Hart & Hegeman Elec. Co. v. Federal Trade Comm’n, 291 U. S. 587, this Court, by a divided vote, ruled on the scope of the Federal Trade Commission’s remedial powers under the original Clayton Act. After the Commission had issued a § 7 complaint against a holding company which had been formed by the stockholders of two manufacturing corporations, steps were taken to avoid the Commission’s jurisdiction. Two new holding companies were formed, each acquired all the common stock of one of the manufacturing companies, and each issued its stock directly to the stockholders of the original holding company. This company then dissolved and the two new holding companies and their respective manufacturing subsidiaries merged into one corporation. This Court held that the Commission had no authority, after the merger, to order the resulting corporation to divest itself of assets. An essential part of this holding was that the merger in question, which was technically a consolidation similar to that here planned by PNB and Girard, was not a stock acquisition within the prohibitions of § 7: “If the merger of the two manufacturing corporations and the combination of their assets was in any respect a violation of any antitrust law, as to which we express no opinion, it was necessarily a violation of'statutory prohibitions other *391than those found in the Clayton Act.” 291 U. S., at 599; see id., at 595.32
This decision, along with two others earlier handed down by this Court (Thatcher Mfg. Co. v. Federal Trade Comm’n and Swift & Co. v. Federal Trade Comm’n, decided together with Federal Trade Comm’n v. Western Meat Co., 272 U. S. 554), perhaps provided more of a spur to. enactment of the “assets”, amendment to § 7 than any other single factor. These decisions were universally regarded as opening the unfortunate loophole whereby § 7 could be evaded through the use of an asset acquisition. Representative Celler expressed the view of Congress in this fashion:
“The result of these decisions has so weakened sections 7 and 11 ... as to give to the Federal Trade Commission and the Department of Justice merely a paper sword to prevent improper mergers.” 95 Cong. Rec. 11485 (1949.).33
*392Since this Court’s decisions were cast in terms of the scope of the Federal Trade Commission’s jurisdiction, Congress, in amending § 7 so as to close that gap, emphasized its expectation — made plain in the committee reports, hearings, and debates — that the Commission would assume the principal role in enforcing the section.34 Implicit here is that no change in the enforcement powers of the other agencies named in § 11 was contemplated.35 Of more importance, the legislative history demonstrates that it was the asset-acquisition provision that was designed to plug the loophole created by Thatcher, Swift, and Arrow.' Although Arrow, unlike Thatcher and Swift, involved a consolidation of the same type as the PNB-Girard merger, the members of Congress drew no distinction among these cases, invariably discussing all three of them in the same breath as examples of asset acquisitions.36 Indeed, the House report stated that
“the Supreme Court . . . held [in Arrow] that if an acquiring corporation secured title to the physical assets of a corporation whose stock it had acquired before the Federal Trade Commission issues its final order, the Commission lacks power to direct divestiture of the physical assets . . . .” H. R. Rep. No. 1191, 81st Cong., 1st Sess.' 5 (1949). (Emphasis added.)
And on the Senate floor it was pointed' out that “the method by which . . . [the merger in Arrow] had been *393accomplished was an innocent one . . . .” 96 Cong. Rec. 16505 (1950). (Emphasis added.) Clearly the understanding of Congress was that a consolidation of two corporations was an acquisition of assets.37
Nor did Congress act inadvertently or without purpose in limiting the asset-acquisition provision to corporations subject to the jurisdiction of the Federal Trade Commission, thereby excluding bank mergers. The reports, hearings, and debates on the 1950 amendment reveal that Congress was then concerned with the rising tide of industrial concentration — i. e., “the external expansion . . . through mergers, acquisitions, and consolidations” 38 of corporations engaged in manufacturing, mining, merchandising, and of other kindred commercial endeavors. Specialized areas of the economy such as banking were not even considered. Thus the Federal Trade Commission’s 1948 report on mergers recounted the statistics on concentration in a multitude of industries— e. g., steel, cement, electrical equipment, food and dairy products, tobacco, textiles, paper, chemicals, rubber — but included not one figure on banking concentration.39 This report was repeatedly cited and heavily relied on by members of Congress and others to demonstrate the mag*394nitude of the merger movement and the economic dangers it presented.40 In the .committee hearings the focus was exclusively upon amalgamation in the ordinary commercial fields,41 and similarly the Senate and House reports spoke solely of industrial concentration as the evil to be remedied.42 On the floor of the House, Representative Celler indicated the extent of concentration of industrial power:
“Four companies now have 64 percent of the steel business, four have 82 percent of the copper business, two have 90 percent of the aluminum business, three have 85 percent of the automobile business, two have 80 percent of the electric lamp business, four have 75 percent of the electric refrigerator business, two have 80 percent of the glass business, foun have 90 percent of the cigarette business, and so forth.
“The antitrust laws are-ta complete bust unless we pass this bill.” 95 Cong. Rec. 11485 (1949).
The legislatory history , is thus singularly devoid of any evidence that .Congress sought to deal with the special problem of banking concentration.
I do not mean to suggest, of course, that § 7 of the Clayton Act is thereby rendered applicable only to ordinary commercial and industrial corporations and not to firms in any “regulated” sector of the economy. The *395point is that when Congress included in § 7 asset acquisitions by corporations subject to the Federal Trade Commission’s jurisdiction, and at the same time continued in § 11 the Federal Reserve Board’s jurisdiction over banks, it was not acting irrationally. Rather, the absence of any' mention of banks in thé legislátive history of the 1950 amendment, viewed in light of the prior congressional treatment of banking as a distinctive area with.special characteristics and needs, compels the conclusion that bank mergers were simply not then regarded as part of the loophole to be plugged.43
This conclusion is confirmed by a number of additional considerations. It was not until after the passage, of the 1950 amendment of § 7 that Representative Celler, its co-sponsor, requested the staff of the Antitrust Subcommittee of the House Committee on the Judiciary “to prepare a report indicating the concentration existing in our banking system.” Staff of Subcommittee No. 5, House Committee on the Judiciary, 82d Cong., 2d Sess., Report 6n Bank Mergers and Concentration of Banking Facilities hi (1952). The introduction to the report reveals that:
“On March- 21, 1945, the Board of Governors of the Federal Reserve System wrote to the chairman of the Committee on the Judiciary requesting that the provisions of H. R. 2357, Seventy-ninth Congress, first session, one of the early predecessors of the Celler Antimerger Act, be extended so as to include corporations subject to the jurisdiction of the Federal Reserve Board under section 11 of the Clayton Act. Because of the revisions made in subsequent versions of antimerger bills, however, it became impracticable *396to include within the scope of the aht corporations other than those subject to regulation by the Federal Trade Commission. Banks, which are placed squarely within the authority of the Federal Reserve Board by section 11 of the Clayton Act, re therefore circumscribed insofar as mergers are concerned only by the old provisions of section 7, and certain additional statutes which do not presently concern themselves substantively with the question of competition in the field of banking.” . Id., at vii.
It is also worth noting that'in 1956 Representative Celler himself introduced another amendment to § 7, explaining that “all the bill [H. R. 5948] does is plug a loophole in the present law dealing with bank mergers .... This loophole exists because section 7 of the Clayton Act prohibits bank mergers . . . only if such mergers are accomplished by stock acquisition.” 102 Cong. Rec. 2109 (1956). The bill read in pertinent part: “[N]o bank . . . shall acquire . . . the whole or any part of the assets of another corporation engaged also in commerce . . . .” Ibid. The amendment passed the House but was defeated in the Senate.
For all these reasons, I think the conclusion is inescapable that § 7 of the Clayton Act does not apply to the PNB-Girard merger. The Court’s contrary conclusion seems to me little better than a tour de force.44
Memorandum of Mr. Justice Goldberg.
I agree fully with- my Brother Harlan that § 7 of the Clayton Act has no application to bank mergers of .the type involved here, and I therefore join in the conclusions expressed in his opinion, on that point. However, while I *397thus dissent from the Court’s holding with respect to the applicability of the Clayton Act to this merger, I wish to make clear that I do not necessarily dissent from its judgment invalidating the merger. To do so would require me to conclude in addition that on the record as it stands the Government has failed to prove a violation of the Sherman Act, which is fully applicable to the commercial banking business. In my opinion there is a substantial Sherman Act issue in this case, but since the Court does not reach it and since my views relative thereto would be superfluous in light of today’s disposition of the case, I express no ultimate conclusion concerning it. Compare Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 585 (Murphy, J., dissenting); Poe v. Ullman, 367 U. S. 497, 555 (Stewart, J., dissenting).
These agencies and the areas of their primary supervisory responsibility are: (1) the Comptroller of the Currency — national banks; (2) the Federal Reserve System — state Reserve-member banks; (3) the FDIC — insured nonmember banks.
Samuelson, Economics (5th ed. 1961), p. 311.
For example, savings and loan associations, credit unions, and other institutions compete with banks in installment lending to individuals, and - banks are in competition with individuals in the personal trust field.
Since bank insolvencies destroy sources of credit, not only borrowers but also others who rely on the borrowers’ ability to secure loans may be adversely affected. See Berle, Banking Under the Anti-Trust Laws, 49 Col. L. Rev. 589/592 (1949).
The term “merger” is generally used throughout this opinion to designate any form of corporate amalgamation. See note 7 in the *376Court’s opinion, ante, p. 332. Occasionally, however, as in the above paragraph, the terms “merger” and “consolidation” are used in their technical sense.
40 Stat. 1043, as amended, 12 U. S. C. (Supp. IV, 1963) §215.
44 Stat. 1225, as amended, 12 U. S. C. (Supp. IV, 1963) §215.
66 Stat. 599, as amended, 12 U. S. C. (Supp. IV, 1963) § 215a.
See Paton, Conversion, Merger and Consolidation Legislation— “Two-Way Street” For National and State Banks, 71 Banking L. J. 15 (1954).
64 Stat. 455, as amended, 12 U. S. C. § 214a.
64 Stat. 457; see 64 Stat. 892 (now 74 Stat. 129, 12 U. S. C. (Supp. IV, 1963) §1828 (c))
Ibid. However, under the Act, insured banks merging with insured state banks did not have to obtain approval unless the capital stock or surplus of the resulting or assuming bank would be less than the aggregate capital stock or surplus, of all the merging, banks.
See Hearings before the .Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., Ser. 3, pt. 1, pp. 243-244 (1955); Hearings on S. 3911 before a Subcommittee of the Senate Committee on Banking and Currency, 84th Cong., 2d Sess. 60-61, 84 (1956); Hearings on S. 1062 before the Senate Committee on Banking and Currency, 86th Cong., 1st Sess. 9 (1959).
See also H. R. Rep. No. 1416, 86th Cong., 2d Sess. 5 (1960). (“The Federal antitrust laws are also inadequate to the task of regulating bank mergers; while the Attorney General may move against bank mergers to a limited extent under the Sherman Act, the Clayton Act offers little help.”); id., at 9 (“Because section 7 [of the Clayton Act] is limited, insofar as banks are concerned, to cases where a merger is accomplished through acquisition of stock, and because bank mergers are accomplished by asset acquisitions rather than stock acquisitions, the act offers ‘little help,’ in the words of Hon. Robert A. Bicks, acting head of the Antitrust Division, in controlling bank mergers.”).
In the Senate, a sponsor- of S. 1062, Senator Fulbright, reported that the “1950 amendment to section 7 of the Clayton Act, which for the first time imposed controls over mergers by means other than stock acquisitions, did not apply to. .bank mergers which are practically invariably accomplished by means other than stock acquisition. Accordingly for all practical purposes bank mergers have been and still are exempt from section 7 of the Clayton Act.” 106 Cong. Rec. 9711 (1960).
E. g., H. R. 5948, 84th Cong. 1st Sess. (1955); S. 198, 85th Cong., 1st Sess. (1957); S. 722, 85th Cong., 1st Sess. (1957); see note 1, supra.
S. Rep. No. 196, 86th Cong., 1st Sess. 17 (1959): “Time and again the Nation has suffered from the results of unregulated and uncontrolled competition in the field of banking, and from insufficiently regulated competition. . . . The rapid increase in the number of small weak banks, to such a large number that the Comptroller could not effectively supervise them or control any but the worst abuses, was one of the factors which led to the panic of 1907.
“The banking collapse in the early 1930’s again was in large part the result of insufficient regulation and control of banks, in effect the result of too much competition.” See also 105 Cong. Rec. 8076 (1959): “But unlimited and unrestricted competition in banking is just not possible. We have had too many panics and banking crises and bank failures, largely as the result of excessive competition in banking, to consider for a moment going back to the days of free banking or unregulated banking.”
See also S. Rep. No. 196, 86th Cong., 1st Sess. 16 (1959): “But it is impossible to require unrestricted competition in the field of banking, and it would be impossible to subject banks to the rules applicable to ordinary industrial and commercial concerns, not subject to regulation and not vested with a public, interest.”
For the pertinent text of the statute, see note 8 in the Court’s opinion, ante, pp. 332-333.
These factors are: “the financial history and condition of each of the banks involved, the adequacy of its capital structure, its future earnings prospects, the general character of its management, the convenience and needs of the community to be served, and whether or not its corporate powers are consistent with the purposes of this chapter.” 12 U. S. C. (Supp. IV, 1963) § 1828 (c). Compare §6 of the Federal Deposit Insurance Act, 12 U. S. C. § 1816.
See also 106 -Cong. Rec. 7259 (1960): “The language of S. 1062 as amended by the House Banking and Currency Committee and as it appears in the bill we are now about to pass in the House makes it clear that the competitive and monopolistic factors are to be considered along with the banking factors and that after considering all of the factors involved, if the resulting institution will be in the public interest, then the application. should be approved and otherwise disapproved.”
106 Cong. Rec. 7257 (1960): “This puts the responsibility for acting on a proposed merger where it belongs — in the agency charged with supervising and examining the bank which will result from the merger. Out of their years of experience in supervising banks, our Federal-banking agencies have developed specialized knowledge of banking and the people who engage in it. . They are experts at judging the condition of the banks involved, their prospects, their management, and the needs of the community for banking services. They should have primary responsibility in deciding whether a proposed merger would be in the public interest.” (Emphasis added.)
H, R. Rep. No. 1416, 86th Cong., 2d Sess. 11-12 (1960): “We are convinced, also, that approval of a merger should depend on a posi*384tive showing of some benefit to be derived from it. As previously indicated, your committee is not prepared to say that the cases enumerated in the hearings are the only instances in which a merger is in the public interest, nor are we prepared to devise a specific and exclusive list of situations in which a merger should-be approved.”
Compare State Board of Ins. v. Todd Shipyards Corp., 370 U. S. 451, 457, in which this Court refused to reconsider certain prior decisions because Congress had “posited a regime of state regulation” of the insurance business oni their continuing validity. Cf. Toolson v. New York Yankees, Inc., 346 U. S. 356.
If a bank merger such as this falls within the category of a “stock” acquisition, a § 7 suit to enjoin it may be brought not only by the Attorney General, but by the Federal Reserve Board as well. See § 11 of the Clayton Act, 15 U. S. C. § 21 (vesting authority in the Board to enforce § 7 “where applicable to banks”). In an attempt to retain some semblance of the structure erected by Congress in the Bank Merger Act, the Court states that it “supplanted ... whatever authority the FRB may have acquired under § 11, by virtue of the amendment of § 7, to enforce § 7 against bank mergers.” Ante) p. 344, note 22. Since both the Attorney General and the Federal Reserve Board have purely advisory roles where a bank merger will result in a national bank, the Court’s reasoning with respect to the effect of the Bank Merger Act upon enforcement authority should apply with equal force to both.
Indeed the Court has erected a simple yardstick in order to alleviate the agony of analyzing economic data — control of 30-% of a commercial banking market is prohibited. Ante, pp. 363-364.
Although § 7 of the Clayton Act is applicable to an outright purchase of bank stock, this form of amalgamation is infrequently used in the banking field and does not involve divestiture problems of the same magnitude as does an asset acquisition.
It is true, as the Court points out (ante, p. 354), that Congress, in enacting the Bank Merger Act, agreed that the applicability of the Sherman Act to banking should not be disturbed. See, e. g., 105 Cong. Rec. 8076 -(1959). But surely ,this -alone provides no con-' ceivable justification for applying the Clayton Act as well. Apart from the fact that the Sherman Act covers many kinds of restraints besides mergers, one of the sponsors of the Bank Merger Act (Senator Fulbright) expressed his expectation that in a Sherman Act *386case a bank merger would not be subjected to strict antitrust standards to the exclusion of all other considerations: “And even if the Sherman Act is held to apply to banking and to bank mergers, it seems clear that under the rule of reason spelled out in the Standard Oil case, different considerations will be found applicable) in a regulated field like banking, in determining whether activities would unduly diminish competition,’ in the words of the Supreme Court in that case.” 106 Cong. Rec. 9711 (1960). Moreover, this Court has recognized in other areas that it may be necessary to accommodate the Sherman Act to regulatory policy. McLean Trucking Co. v. United States, 321 U. S. 67, 83; Federal Communications Comm’n v. RCA Communications, Inc., 346 U. S. 86, 91-92. See also United States v. Columbia Steel Co., 334 U. S. 495, 527. And of course the Sherman Act is concerned more with existing anticompetitive effects than with future probabilities, and thus would not reach incipient restraints to the same extent as would § 7 of the Clayton Act. See Brown Shoe Co. v. United States, 370 U. S. 294, 317-318 and notes 32,33.
In these respects a merger is precisely the contrary of what § 7 was originally designed to proscribe — the secret acquisition of corporate control. See the Court’s opinion, ante, p. 338.
That the stock-acquisition provision was not intended to cover mergers is strongly suggested by the second paragraph of § 7: “No corporation shall acquire . . . any part of the stock ... of one or more corporations . . . where . . . the effect ... of the use of such stock by the voting or granting"'of proxies .' . . may be substantially to lessen competition, or to tend to create a monopoly.” 15 U. S. C. § 18. (Emphasis added.) After a merger has been consummated, the resulting corporation holds no stock in any party to the merger; thus there can be in this situation no such thing as a restraint of trade by “the use” of the voting power of acquired stock.
On this point, the dissenters agreed: “It is true that the Clayton Act does not forbid corporate mergers . . . .” 291 U. S., at 600. See also United States v. Celanese Corp. of America, 91 F. Supp. 14.
See also Hearings on H. R. 988, H. R-. 1240, H. R. 2006, H. R. 2734 before Subcommittee No. 3 of the House Committee on the Judiciary, 81st Cong., 1st Sess. 38-39 (1949); Hearings on H. R. 2734 before a. Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st & 2d Sess. 109-110 .(1950): “The loophole sought to be filled resulted from a series of Supreme Court decisions. (Swift & Co. v. FTC and Thatcher Mfg. Co. v. FTC (272 U. S. 554); Arrow-Hart & Hegeman Co. v. FTC (291 U. S. 587).) In these decisions the' Supreme Court held that section 7 of the Clayton Act, while prohibiting the acquisition of stock of a competitor, gave the Federal Trade Commission no authority under section 11 to order divestiture of assets which had been acquired before a cease-and-desist order was issued, even though the acquisition resulted, from the voting of illegally held stock.”
The Federal Trade Commission had assumed primary enforcement responsibility before the 1950 amendment. See Martin, Mergers and the Clayton Act (1959), p. 197.
Compare note 26, supra.
See note 33 supra; Hearings on H. R. 2734 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st & 2d Sess. 97 (1950). And this Court has, after the 1950 amendment, described Arrow as a case involving an asset acquisition. Brown Shoe Co. v. United States, 370 U. S. 294, 313 and note 20.
The single excerpt quoted by the Court (ante, p. 345) casts no doubt on this proposition, for Senator Kilgore’s remark occurred in the course of a discussion in which he was trying to make the point that there is no difference in practical effect, as .opposed to the legal distinction, between.a merger and a stock acquisition. Thus at the end of the paragraph quoted by the Court the Senator stated: I cannot see how on earth you can get the idea that the purchase of the stock of the corporation, all of it, does not carry with it the transfer of all of the physical assets in that corporation.” Hearings on H. R. 2734 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong-., 1st & 2d Sess. 176 (1950).
H. R. Rep. No. 1191, 81st Cong., 1st Sess. 2 (1949).
Federal Trade Commission, The Merger Movement: A Summary Report (1948), passim.
Hearings on H. R. 2734 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st & 2d Sess. 5-6, 17, 57-59 (1950); Hearings on H. R. 988, H. R. 1240, H. R. 2006, H. R. 2734 before Subcommittee No. 3 of the House Committee on the Judiciary, 81st Cong., 1st Sess. 40, 113 (1949).
S. Rep. No. 1775, 81st Cong., 2d Sess. 3 (1950); H. R. Rep. No. 1191, 81st Cong., 1st Sess. 2-3 (1949).
E. g., Hearings on H, R. 988, H. R. 1240, H. R. 2006, H. R. 2734 before Subcommittee No. 3 of the House Committee on the Judiciary, 81st Cong., 1st Sess. 39-40 (1949); 95 Cong. Rec. 11503 (1949); 96 Cong. Rec. 16505 (1950).
It is interesting to noté that in the same year in which § 7 was amended Congress passed an act facilitating certain kinds of bank mergers which had theretofore been prohibited. See note 11, sufra, and accompanying text.
Since the Court does not reach the Sherman Act aspect of .this case, it would serve no useful purpose for me to do so.