(concurring) :
I concur in the result and in most of what the Court says. I have, however, two specific reactions which I am unable to submerge.
The first is the dubious reliance on that very peculiar “economic interest” *341concept as to the tax incidence of oil and gas transactions. (The Court cites United States v. Witte, 5 Cir., 1962, 306 F.2d 81, cert. den., 1963, 371 U.S. 949, 83 S.Ct. 503, 9 L.Ed.2d 498.) We have enough problems in confining this to depletable resources without bringing it in to offer a wholly new explanation to add to a dozen or so more which have come from all of the Judges who may not eat Dairy Queen, but find themselves dealing with it.
The second is to register some amazement that a time when all are encouraged to use inventive resourcefulness in finding ways to keep our vaunted judicial system from breaking down from its own weight as law collides with the explosion of population,1 these contracts which are essentially the same have occupied the attention of so many Judges as they struggle a decade and half later, not merely to decide, but to decide upon what theory they are to decide, the tax consequences of Dairy Queen which probably “tastes good like Dairy Queen should,” but which taxes good — to Taxpayer or Government alike — depending on the accident of residence. Judge Blackmun should now bring his penetrating analysis 2 up to date.
Individual litigation with one’s own counsel, on one’s own notion of the relevant record is dear to the heart of lawyers, but I would doubt that these issues have been sufficiently grave or important as to occupy the attention of no less than 18 Circuit Judges, one District Judge whose “extremely able decision” was last found to be both wrong and right, and an undisclosed number of Tax Court Judges.
Won’t we have to find another, better way ? If not, won’t we, as this nation approaches the 300 — 350—400—-million population, see a top heavy structure which fails in its aim from sheer weight?
. See the address of the Chief Justice, American Law Institute, May 1965; Bros Inc. v. W. E. Grace Mfg. Co., 5 Cir., 1965, 351 F.2d 208, note 1, cert. den., 1966, 383 U.S. 936, 86 S.Ct. 1065, 15 L.Ed.2d 852.
. United States v. Wernentin, 8 Cir., 1966, 354 F.2d 757, [Nos. 17633, 17688, 66-1 USTC 9140].