(’dissenting).
My interpretation of the operative facts of this case leads to the conclusion that the principles of per se liability formulated in United States v. Arnold, Schwinn & Co.1 have a controlling impact on the issue of the defendant’s liability. Therefore, I am impelled to this separate opinion.
The distribution system employed during the period in question by the publisher of Atlas comics, Magazine Management (Magazine), may be effectively analyzed as a series of steps or links. Magazine would deliver the most recent issue of Atlas comics for distribution, pursuant to an exclusive distribution contract, to Independent News (Independent), defendant-appellee.2 Independent would then distribute the comics to wholesalers who would in turn distribute to retailers.
Roughly contemporaneously with the arrival of current comics, the retailers would return all previously-received, unsold comics, back through the distribution chain, to Magazine. As the new comics had been distributed down to the retailers, payment for the shipments had been made at each step. As the unsold comic books were returned up the chain to Magazine, credits for the returns were granted.
Upon receipt of these returned comics, Magazine resold them to I. Waldman on the condition that Waldman was to resell them only to those who would use the comics as premiums.3 However, Wald-man sold the return comics to Harry Williams, plaintiff-appellant here, who in turn sold them to retailers for sale at a price below the newsstand price of the current issue of Atlas comics.
The sellers of current Atlas comic books, objecting to the presence on the market of Atlas comic books that were now being sold at a lesser price because they were no longer “current,” registered their dissatisfaction to Independent. The Vice President of Independent conveyed its displeasure at such sales of returned comic books for other than premium purposes; thereafter, Magazine terminated its sales to Waldman.
*1109Although the written contract between Independent and Magazine recited that Independent was to have “the exclusive right to sell and distribute [Atlas comics] throughout the world . . .testimony of the President of Independent clearly indicates that the understanding between them was that Magazine could sell off-sale comics to other parties so long as the others were required to confine their sales to certain types of customers, i.e., those who would distribute the off-sale comics as premiums.
Thus, the majority paraphrases the testimony of the President of Independent on this point, as follows:
“Stated otherwise, Sampliner [the President of Independent] told Magazine that it could continue to sell off-sale full-copy returns if they were distributed as premiums.”
Such evidence, it is suggested, takes the present suit out of the classic “exclusive dealing” group of cases, or at least forms the basis by which the jury might conclude that the exclusive dealing arrangement did not, in fact, cover the sale of the books returned,4 although there was testimony by Sampliner that it did.
In contrast, the majority views, the facts as constituting a typical exclusive dealing situation. It points out that if a manufacturer or distributor, who does not have a monopoly over sales of a product, chooses to sell its product exclusively to one dealer, that is not, by itself, an antitrust violation. Firstly, if the new and off-sale books are considered as one product, Magazine did not choose to sell such product to one dealer. Under this concept of one product it admittedly chose to sell a portion of such product to Independent and a portion of such interest in Waldman. Secondly, there is nothing in this case that would prevent the jury from finding that the comic books involved here constitute, from a marketing standpoint, two separate products, depending on which stage of the distribution chain is considered. Thus, there are new comic books, and there are off-sale comic books. Although the written contract is not clearly so restricted, there is ample evidence that would indicate that Independent had an exclusive contract to sell Magazine’s new comic books. Consequently, the jury might well have found that Independent had no exclusive agreement to sell the off-sale or returned books — the product which really forms the basis of the complaint. And the fact is that Magazine sold the off-sale or returned books through other than Independent, with Independent’s acquiescence.5
Once it is recognized that there is credible evidence in the record that would permit the jury to find that this is not an “exclusive dealing” ease, at least so far as the off-sale or returned books are concerned, it becomes necessary to focus on the two steps in the distribution chain of off-sale comic books — the link which sends these comics from Independent or its wholesalers to Magazine, and the next step, the sale of the off-sale comics by Magazine to Waldman. Proper evaluation of these steps is crucial in any attempt to measure the facts of this case against the standards of the antitrust laws.
*1110At the Independent-Magazine step, there is evidence that Magazine credited Independent for returned, off-sale, comic books. This crediting may be viewed as a complete transfer of ownership to Magazine, removing all risk and dominion over the books from Independent. Regardless of the characterization of earlier steps, it is apparent that at this point in the distribution arrangement Magazine fully owned the off-sale comic books.
The very next step, the transaction between Magazine and Waldman covering the off-sale comics, was an outright sale. Magazine relinquished its full interest in the comics and thereby passed to Waldman full title, risk and dominion. Waldman, however, was allegedly to be restricted as to the type of customers to whom he could resell these comics. There is credible testimony from which the jury could find that Waldman’s violations of this restriction led to both warnings of termination and actual termination of sales from Magazine to him.
The charge of the trial court did not ask the jurors to focus separately on either of the two discrete links in the distribution chain, the one from Independent to Magazine, and the one from Magazine to Waldman. Rather, a significant portion of the charge instructed the jurors that they were to determine “What kind of distribution system was this?” (N.T. 496) The jury was then advised that if it was a consignment or agency arrangement, then there should be a finding for the defendant on the first theory [the per se violation theory]. (N.T. 496)6
Further, the trial court emphasized for the jurors the term “conspiracy” as used in Section One of the Sherman Act.6 7 The proscription of the Act, however, is not limited to conspiracies, but makes a “combination” illegal as well, and the “combination” concept was referred to, but was not sufficiently developed so as to be meaningful to the jury. (N.T. 498)
In Schwinn,8 a chain of distribution quite similar to that here was examined by the Supreme Court. Schwinn, a leading manufacturer of bicycles, employed several different patterns of distribution. One system consisted of Schwinn, the manufacturer, selling the bicycles to cycle distributors, to a large tire company, and to hardware jobbers. These groups of wholesalers “were instructed to sell only to franchised Schwinn accounts and only in their respective territories which were specifically described and allocated on an exclusive basis.” 9 A second arrangement had Schwinn selling directly to franchised retailers who were “authorized to sell only to consumers, and not to unfranchised retailers.”10 The third method of distribution utilized consignment shipments to the wholesalers.
Schwinn “resolutely policed” the restraints contained in the two “sale” patterns of distribution, its power to enforce them being “grounded upon the communicated danger of termination.”11
The United States brought a civil antitrust suit against Schwinn, asserting, inter alia, that the restrictions as to customers and territories imposed by Schwinn constituted per se violations of Section One of the Sherman Act.12
*1111The Supreme Court, asserting that restrictions imposed upon customers who had acquired title, risk and dominion offended the “ancient rule against restraints on alienation,”13 held that Schwinn’s attempt to limit its distributors’ choice of customers was a per se violation.
“Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee — is a per se violation of § 1 of the Sherman Act.” 14
Returning to the off-sale comic book distribution arrangement, two links in that chain bear a marked resemblance to the wholesaler sales and retailer sales in the Schwinn ease.
Focusing first on the Independent-Magazine link, the evidence indicates that the procedure employed consisted of Independent returning the comics to Magazine and receiving, at that time, full credit for those returns.15 At that juncture, so far as the record indicates, the interest of Independent in the off-sale books was extinguished, and all title, risk and dominion was vested in Magazine. Nonetheless, Magazine was not free to deal with the comic books as it chose. Rather, evidence was introduced which showed that although Magazine was in a position to sell "these off-sale comics to certain types of eustomers, it could not sell to all types of customers — -at least not free from pressure exerted by its important customer, Independent. Up to this point, the analogy to Schwinn is quite close, if not perfect. Both cases involved restrictions as to customers, imposed on a purchaser who has acquired complete title, risk and dominion.
What is missing to complete the analogue is a finding that the customer restrictions imposed on the purchaser, here Magazine, were imposed and enforced by Independent. There was evidence adduced which, if believed, would support a finding that Independent did impose and enforce such a restriction.
It was not sufficient that the charge in this regard should have merely requested the jury to consider the characterization of the Independent-Magazine arrangement. Rather, the charge should have requested the jury to determine whether or not Independent exercised control over Magazine’s sale of the off-sale comics. Although the trial court did advert to this point, the reference was not sufficiently clear to make it understandable in light of the complex factual situation that obtained. A finding by the jury that Independent did impose such restriction on Magazine would have been a basis for concluding that Independent was liable for a per se violation of § 1 of the Sherman Act, as interpreted by Schwinn.
Shifting the examination to the Magazine-Waldman link leads to a similar conclusion.16
*1112The comparison between the distributor or retailer link in the Schwinn chain on the one hand, and the MagazineWaldman link in the Atlas comic chain on the other, is not difficult to draw.17 Magazine, like Schwinn, sought to limit the type of customers to whom its purchaser could sell. Both Magazine and Schwinn had relinquished title, risk and dominion to their respective purchasers. Then, both attempted to enforce the limitations by the “communicated danger of termination.” 18 Magazine, in fact, went one step further and did terminate its recalcitrant purchaser.
The termination of Waldman directly injured Williams, ending his source of off-sale comic books. Thus, were this a suit by Williams against Magazine, it might well be found that Magazine had committed a per se violation as to Williams.
This does not, however, conclude the inquiry, because the defendant in the suit is Independent, not Magazine. Nonetheless, if Independent brought pressure to bear on Magazine for the purpose of having Magazine limit Wald-man’s use of the off-sale comic books for premiums or else be terminated, that exertion of influence might be found by
the jury to be a combination to restrain trade.19 Such a combination would render those who join it guilty of a violation of § 1 of the Sherman Act.20 Testimony was introduced which showed that Independent had brought pressure to bear on Magazine. Thus, the majority states:
“. . . Independent reminded Magazine that their contract provided for the distribution of Atlas comics to new dealers and wholesalers solely through Independent, and suggested that Magazine investigate the source of these returns. Specifically, Independent advised Magazine to police their off-sale full-copy return sales to Waldman by making certain he was using the comics as premiums." (Emphasis added)
Based on such evidence, the jury should have been instructed that they were to determine whether there existed a combination between Independent and Magazine.
Whether viewed from the standpoint of the Independent-Magazine link or from the standpoint of the MagazineWaldman link, it appears that the charge of the distinguished trial judge was not correct.21 It did not present to *1113the jury an accurate description of when the rule of reason could or could not be-applied. Thus, the case should be remanded to the district court for a new trial, conducted in conformity with the legal theories set forth by the Supreme Court in Schwinn.
Although the conclusion reached in this dissenting opinion is predicated heavily on Schwinn, it would be remiss not to point out the criticism that has been directed at that case.22 The commentators make clear that the Supreme Court’s adoption of a per se rule applicable to products passing through the chain of distribution by sale created an unnatural distinction between sales and agency arrangements. Further, they strongly suggest that in certain circumstances the restrictions condemned in Schwinn appear to serve salutary purposes, and their illegality should be based on a benchmark of reasonableness rather than condemned out of hand by a per se rule.
However, such contentions, presumably considered in Schwinn, were rejected by the Supreme Court in that very case. And the position established in Schwinn has been reiterated by the Court just this term: “The promotion of self-interest alone does not invoke the rule of reason to immunize otherwise illegal conduct.” 23
Moreover, the Supreme Court has not only had recent occasion to refer to language used in Schwinn, but has made it clear that the principle enunciated there has continuing vitality.24
An intermediate appellate court may not pursue its own ideas as to the economic wisdom of a certain practice or as to the legality of that practice. Kather, if the way is illumined by the Supreme Court, we are duty-bound to follow the path.
Therefore, I would remand this case to the district court for a new trial in which the rule of the Schwinn case would be appropriately applied 25
*1114APPENDIX
. 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967).
. National Periodical Publications, the owner of Indeijendent, was named as a defendant in the original action. Its motion for a directed verdict was granted by the trial court, and I concur in the majority’s affirmance of that action.
. Premiums are defined at footnote 3 of the majority opinion.
. The majority discusses, at some length, the rules to be employed in considering the legality of exclusive dealing contracts. See text following note 5 of majority opinion. Justice Fortas, in Schwinn, stated: “At the other extreme, a manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may ‘franchise’ certain dealers to whom, alone, he will sell his goods ... If the restraint stops at that point — if nothing more is involved than vertical ‘confinement’ of the manufacturer’s own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act.” (388 U.S. at 376, 87 S.Ct. at 1864). (Emphasis added.)
. See appendix for schematic representation illustrating the distribution or sale of new comics and the return and sale of off-sale comic books.
. The district court may have had in mind the statement in Schwinn that if there is an agency relationship, the transfer from the manufacturer to its distributor might be accompanied by a restriction without creating a per se violation. 388 U.S. at 371, 87 S.Ct. 1856.
However, there was no evidence that the arrangements vis-a-vis Magazine and Waldman amounted to an agency, consignment, or franchise.
. 15 U.S.C. § 1.
. 388 U.S. 365, 87 S.Ct. 1856 (1967).
. 388 U.S. at 371, 87 S.Ct. at 1861.
. Id.
. Id. at 372, 87 S.Ct. at 1862.
. 15 U.S.C. § 1. That section provides that: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint *1111of trade ... is declared to be illegal.
A practice deemed to be per se illegal is one in which the Court finds that its anti-competitive effects are such as to preclude the possibility of legally cognizable business justifications. As Justice White put it in Schwinn (388 U.S. at 379, 87 S.Ct. 1865) : “Such restraints are so obviously destructive of competition that their mere existence is enough.”
. 388 U.S. at 380, 87 S.Ct. at 1866.
. Id. at 382, 87 S.Ct. at 1867.
. Analyzed in this way, Independent assumes the position of Schwinn and Magazine, the role of the distributors and retailers. In other words, at this stage in the distribution chain of off-sale books, Independent is a “seller” and Magazine its “purchaser.”
. Although this approach is not suggested by the plaintiffs, it, too, seems to be mandated by an application of the principles in Schwinn to the facts of this case.
As Justice Fortas stated: “Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. Such restraints are so obviously destructive of com*1112petition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale. . On the other hand ... we are not prepared to introduce the inflexibility which a per se rule might bring if it were applied to prohibit all vertical restrictions of territory and all franchising, in the sense of designating specified distributors and retailers as the chosen instruments through which the manufacturer, retaining ownership of the goods, will distribute. them to the public.
“This does not, of course, excuse or condone the per se violations which, in substance, consist of the control over the resale of Schwinn’s products after Schwinn has parted with ownership thereof. Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee — is a per se violation of § 1 of the Sherman Act.” 388 U.S. at 379-380, 382, 87 S.Ct. at 1865-1866, 1867.
. In this approach, Magazine assumes Schwinn’s station, and Waldman’s position is the same as that of Schwinn’s distributors and retailers. Cf. fn. 15.
. 388 U.S. at 372, 87 S.Ct. at 1862.
. See Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968).
. 15 U.S.C. § 1.
. As the majority points out, the fault was not entirely that of the trial judge, since through some misunderstanding the requests for charge had been submitted in narrative form. However, after the charge, plaintiff sought a clarification regarding the use by the court of the rule of reason in connection with the transfer by Independent to Magazine of *1113the off-sale comics on the ground that if such transfer were accompanied by a restriction, a per se violation may well have occurred. (N.T. 506) The trial court did not clarify this point, but instead repeated the use of the rule of reason in connection with the restriction allegedly imposed on Magazine so far as the resale of the off-sale comics was concerned. (N.T. 511).
. See Handler, The Twentieth Annual Anti-trust Review, 53 Va.L.Rev. 1667, 1680-89 (1967). Note, The Supreme Court, 1966 Term, 81 Harv.L.Rev. 69, 235-9 (1967).
. Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) quoting United States v. Arnold, Schwinn & Co., 388 U.S. at 375, 87 S.Ct. 1856.
In Tripoli Co. v. Wella Corp., 425 F.2d 932 (3d Cir. 1970) (en banc) this Court held that the rule of Schwinn did not invalidate certain resale restrictions imposed by a manufacturer upon a wholesale distributor, even though there had been a completed sale by the former to the latter. However, the manufacturer alleged, as justification for the restrictions, that they served to protect the public against physical injury, and to protect the manufacturer against potential product liability. Tripoli is thus readily distinguishable from this case, since no such justifications were proffered here.
. See United States v. Topco Assoc., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972).
. In Schwinn, the Supreme Court remanded with the instruction that: “[T]he decree should be revised to enjoin any limitation upon the freedom of distributors to dispose of the Schwinn products, which they have bought from Schwinn, where and to whomever they choose.” 388 U.S. at 378, 87 S.Ct. at 1865.
Issues of collateral estoppel and compulsory counterclaim have been raised on this appeal. The majority, deciding the case on the merits, does not address these procedural questions. Although the problems presented are not without some merit, in view of the fact that this is a minority opinion, further discussion of these issues would not appear fruitful.