(specially concurring):
I concur in the result reached by the majority. Unless I have misread it, however, I cannot entirely accept the basic reasoning of the majority opinion. This I take to be that since United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), establishes as a per se rule that a vendor’s maintenance of any control whatever over the marketing of articles which he has sold1 constitutes a violation of Section One of the Sherman Act,2 with certain possible exceptions, it is up to a defendant who has been shown to maintain such control to prove himself into one of these perhaps-exceptions or lose.
I doubt this is the whole story. It seems to me that it should also be open to a defendant to go forward, especially in situations where — as here, and as the majority correctly notes — the economics are “not obvious” to show that his total economic picture is not analogous to that of Schwinn and a wooden application of Schwinn’s per se rule to him would be inappropriate.3 I do not think there is much help in arguments about how much trading stamps are like or unlike bicycles; more may be expected from a comparison of the operation and particular economics of one business with those found in Schwinn, and more yet from a thorough presentation of proof on the issue of whether the practice attacked actually operates, in context, in an anti-competitive fashion. Asked to apply a per se rule in a somewhat different context, the Eighth Circuit has been careful, post-Schwinn, to afford such an opportunity in the occult economic setting of bank credit cards.4 Pre-Schwinn, the Supreme Court did likewise in White Motor Co. v. United States.5
But both of these decisions were reversals of summary judgments, each entered below on the assumption that a per se rule should apply to defendant’s situation and without a trial opportunity for defendant to present evidence why it should not, in order to give him that chance. Here defendant has had his chance to go forward with such proof and missed it. And though the last paragraph of the majority opinion remarks this circumstance, I wish to state plainly that for me it is this failure to go forward which is dispositive and not defendant’s inability to find a lodgment in one of Schwinn’s perhaps-illusory crevices.
. In such a sense as to have parted with “.
all indicia of ownership, including title, dominion and risk.” 388 U.S. at 381, 87 S.Ct. at 1866.
. On stated reasoning that permitting even reasonable restrictions on resale where the manufacturer has parted with dominion over the goods . would violate the ancient rule against restraints on alienation. . . ” 388 U.S. at 380, 87 S.Ct. at 1866. The “ancient rule” apparently derived by deduction from a given concept of property rights, alienability being one such right and its withholding inconsistent with a “sale,” and perhaps in part from Quia Emptores’ purpose to deter subinfeudation and so conserve the prerogatives of the great feudal magnates. The Sherman Act seems to rest on somewhat different bases.
. Our opinion in Copper Liquor, Inc. v. Adolph Coors Co., 506 F.2d 934 (5th Cir. 1975) merely takes a very literal interpretation of Schwinn when vertical restrictions are coupled with price fixing: it does not foreclose such a treatment of Schwinn. Id. at 941-45.
. Worthen Bank & Trust Co. v. National Bankamericard, Inc., 485 F.2d 119 (1973).
. 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). It is possible to view Schwinn as a mere application of White Motors to a particular situation where the economics are plain, with others to be dealt with on a case-by-case basis. Indeed it is tempting to do so, for so we are rescued from attempts to compare bicycles with trading stamps, credit cards, etc. But the Court’s language probably indicates an intent to sweep more broadly than this.