concurring.
I write separately to underscore the posture in which this case has reached this *257court, and thus the limited scope of our review. In support of its claim that “Van Dyk ... failed because Xerox’ twin exclusionary practices [the maintenance of a ‘rental only’ market and exclusionary patent practices] discouraged investment in a small firm [Van Dyk]”, Van Dyk introduced evidence intended to prove that potential investors and lenders failed to invest in Van Dyk or to provide financing needed by Van Dyk because of the possibility of patent litigation by Xerox and because of the large capital requirements needed by Van Dyk to compete in the rental market created by Xerox’ rental-only practices. Van Dyk’s evidence consisted, inter alia, of testimony of persons specializing in private placement and investment banking and the testimony of one of plaintiff’s principals that banks and investors had expressed that concern and reluctance. In addition, there was documentary evidence from which one might infer the requisite causal nexus. Thus, for example, there .was evidence that a major bank refused to participate in a loan because of the “indefinite” aspect of marketing leased equipment and the patent situation. This evidence was sufficient to permit the trier of fact to make the causal connection suggested by Van Dyk and would have supported a jury verdict for damages, assuming that Van Dyk surmounted the hurdles of proving liability and producing sufficient evidence from which a reasonable damage calculation could be made.
Thus, this case does not fall within the precedent of the cases cited by the majority in which plaintiffs failed to produce sufficient evidence of a nexus between the claimed violation and the claimed injury to warrant submission to a trier of fact. In Sound Ship Building Corp. v. Bethlehem Steel Co., 533 F.2d 96 (3d Cir.), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976), this court sustained summary judgment for a defendant because plaintiff failed to develop a theory or to set out any facts that would show a causal link between the defendant’s acts and the plaintiff’s losses. Similarly, in Deaktor v. Fox Grocery Co., 475 F.2d 1112 (3d Cir.), cert. denied, 414
U.S. 867, 94 S.Ct. 65, 38 L.Ed.2d 86 (1973), we sustained the direction of a verdict for defendant because plaintiff had failed to produce evidence concerning a crucial element of its own causation theory. In this case, on the contrary, plaintiff’s case was not deficient in the quantum of evidence needed to present the issue of fact to the jury.
Plaintiff, however, submitted the case to the court as a trier of fact instead of to a jury. After consideration of the evidence produced by both parties that factors other than those posited by plaintiff were responsible for plaintiff’s financial difficulties, the court concluded that:
Van Dyk failed to demonstrate that Xerox’ activities have had an adverse impact on Van Dyk’s ability to market the Van Dyk 4000 or to obtain financing and failed to demonstrate any causal relationship between Xerox’ patent policies, its relationship with Rank and Fuji, its marketing practices (including pricing and rental policies) or any other Xerox activities, and Van Dyk’s present financial distress.
Van Dyk Research Corp. v. Xerox Corp., 478 F.Supp. 1268, 1315 (D.N.J.1979).
It is, I believe, important to distinguish our function in review of entry of summary judgment or a directed verdict where the trial court acted as a barrier to the jury’s evaluation of the evidence, and our review of the findings of fact of a district court where the judge acted as the trier of fact after evaluation of the evidence. In the latter instance, we are bound by Rule 52(a) of the Federal Rules of Civil Procedure which provides, in part, that “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” We must accept the ultimate fact findings of the trial court unless its determination is completely devoid of “minimum evidentiary support displaying some hue of credibility” or “bears no rational relationship to the supportive evidentiary data.” Rochez Brothers, Inc. v. Rhoades, 527 F.2d 880, 887 *258(3d Cir. 1975). In view of the evidence in this case of the depressed condition of the money market, the deteriorating condition of the securities market, and the other factors referred to in the. majority opinion, I agree with the majority that we cannot find as “clearly erroneous” the court’s finding that these factors- rather than the reasons posited by plaintiff were responsible for Van Dyk’s financial ills.
For these reasons, I do not believe our analysis of this issue is helped by reference to “fact of injury.” There has been a recent tendency by some courts to view “fact of injury” or “fact of damage” as imposing a burden on antitrust plaintiffs in addition to that of proving liability and damage. These terms have sometimes been viewed as code for the standing requirement and sometimes to signify that the injury complained of is not cognizable under the antitrust laws. There is no justification in the statute, policy or operative precedent to require an antitrust plaintiff to meet a burden of proving “fact of injury” which is somehow different from proof of an antitrust violation and legally cognizable damages flowing therefrom.
On the other hand, there are patently justifiable reasons why a trial court should ascertain, before embarking on a lengthy antitrust trial, whether plaintiff will be able to present some evidence that the injury of which it complains can be attributable to the alleged antitrust violation. When “fact of injury” is used in this sense, it is merely synonymous with causation and is unobjectionable, if imprecise, since it is compensable injury that is lacking rather than the injury itself. Once the antitrust trial has been completed, there is no longer any reason to speak of “fact of injury”. Then, if'the plaintiff does not prevail for this reason, it is not because plaintiff has failed to show the existence of damage, but because the plaintiff has failed to show that the damage is caused by the defendant’s antitrust violation. The district court clearly observed the appropriate connection when it found “the plaintiff, in proving the fact of injury, must prove a direct and proximate causal connection between an alleged unlawful act and the plaintiff’s alleged injury.” 478 F.Supp. 1326.
I understand the majority to use “fact of injury” as synonymous with causation, and, as indicated above, agree that the trial court could find that plaintiff in this case failed to prove the alleged causation.