dissenting.
The majority affirms the FTC’s ruling that Borden engaged in monopolization in violation of section 2 of the Sherman Antitrust Act. I respectfully dissent.
Although all reconstituted lemon juice is chemically alike, the FTC found that a strong consumer preference existed for Borden’s ReaLemon brand because Borden successfully differentiated ReaLemon from other brands in the minds of consumers through heavy promotion of the ReaLemon trademark. Borden, Inc., [1976-1979 Transfer Binder] Trade Reg.Rep. (CCH) ¶ 21,490 at p. 21,496. The FTC found that the consumer preference enabled Borden to *518charge significantly more for ReaLemon than consumers were willing to pay for competing products.1 Id. It also found that Borden had monopoly power in the reconstituted lemon juice market. Id. at 21,501-21,503.
ReaLemon faced increased competition in the late 1960’s. The FTC found that Borden deliberately set out to defeat this competition, to maintain or increase its market share. Id. at 21,504-21,505. In furtherance of this goal Borden promoted the ReaLem-on brand even more heavily. The Commission found that Borden also priced ReaLem-on at or near its costs. Because of the price premium ReaLemon commanded — created by the consumer preference — Borden’s competitors were forced to price their competing products below their own costs. The FTC called this “unreasonably low” pricing. Id. at 21,511, together with 21,509-21,510. The Commission found that Borden practiced such unreasonably low pricing only in those markets where competition was stiff.
The FTC concluded that under section 2 of the Sherman Act a monopolist may only maintain its power through means that are “economically inevitable.” Id. at 21,504, 21,508, 21,510. It ruled that Borden’s selective unreasonably low pricing in a deliberate attempt to maintain or increase its market share constituted monopolization under section 2, and thereby violated section 5 of the FTC Act. Id. at 21,510. The majority upholds this ruling. In addition to the grounds relied on by the Commission, the majority relies on alleged below cost sales by Borden and states that Borden used its monopoly profits in markets where it faced little competition to subsidize price reductions in markets where the competition was stiff. Majority op. at 514. One cannot tell from the majority’s opinion the relative importance of any one of these grounds for its holding.
Although it upholds the Commission’s result the majority does not adopt the Commission’s definition of monopolization as competitive conduct by a monopolist that is not “economically inevitable.” Rather, as the majority recognizes, the otherwise lawful conduct forbidden by section 2 of the Sherman Act is a monopolist’s use of monopoly power in order to maintain or improve its position in the market. United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948); Telex Corp. v. International Business Machines Corp., 510 F.2d 894, 926-927 (10th Cir.), cert. dismissed, 423 U.S. 802, 96 S.Ct. 8, 46 L.Ed.2d 244 (1975); majority op. at 512-513 (emphasis added). Not every exercise of market power by a monopolist is a use of monopoly power. Monopoly power is power that a firm possesses by virtue of its monopoly position in the market, not power that it has because of, for instance a superior product. A use of monopoly power that is unreasonably anti-competitive violates the Sherman Act. See Byars v. Bluff City News Co., 609 F.2d 843, 853 (6th Cir. 1979). However, growth or development as a consequence of a superior product, business acumen, or historic accident, even by a monopolist, does not violate the Act. United States v. Grinnell, 384 U.S. 563, 570-571, 86 S.Ct. 1698, 1703-1704, 16 L.Ed.2d 778 (1966).
Since monopolization is the unreasonably anti-competitive use of monopoly power, the only intent that could be relevant to a charge of monopolization is an intent to use monopoly power in an unreasonably anti-competitive manner. There is no proof that Borden had such an intent here. Borden surely meant to obtain as much of the reconstituted lemon juice market as it could, but that is the very essence of normal competition, a goal that we approve even for a monopolist. Despite the majority’s assertion to the contrary this is simple, healthy competition. The alternative is that Borden must have intended not to respond when its market share began to disappear, *519but not even a monopolist need act so irrationally. See Telex v. IBM, supra.
Borden meant to accomplish its marketing goals through extensive advertising and promotions. Advertising is not a use of monopoly power. Successfully promoting one’s product is the epitome of the “business acumen” that Grinnell states is not monopolization. Nor is any monopolization shown by Borden’s selective price reductions where there is no finding that the discriminatory pricing violated the Robinson-Patman Act or resulted in Borden’s not making a profit. It is simply good business practice, not a use of monopoly power, to lower prices only where the competition is stiff. See California Computer Products v. International Business Machines Corp., 613 F.2d 727, 742-743 (9th Cir. 1979) (“business acumen” includes shrewdness in profitable price competition, which is pricing above average variable cost; the Sherman Act does not distinguish competition on the basis of price and of performance).
The use of monopoly profits derived in one market to subsidize competition in another market, on the other hand, is an unreasonably anti-competitive use of monopoly power. Had the Commission rested its decision here on a finding that Borden used its monopoly profits from some geographic markets to finance the fight against competition in others, there was evidence which might have supported such a Commission decision. However, the FTC found Borden in violation of section 2 because it charged “unreasonably low” prices, and it defined unreasonably low prices as prices so low that the preference for ReaLemon forced competitors to sell at a loss. The Commission expressly stated that a monopolist with an image advantage may not cut prices to eliminate competitors, thus requiring Borden to engage in umbrella pricing, or pricing above cost to protect competitors.2 The Commission did not ground its decision on any below cost pricing or improper use of monopoly profits.3 Borden’s forcing its *520competitors to sell at a loss was certainly the paramount if not the only basis for the Commission’s decision, and it is the basis the Commission gives for its decision that we must review on appeal. Securities & Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); majority op. at 506-507. Accordingly, any discussion of below cost sales or use of monopoly profits to subsidize low prices has no place in our review of the case.
On the merits of the decision the FTC did make, neither the majority nor the FTC ever explain why a monopolist may not use consumer preference to its competitive advantage or how this is a use of monopoly power. The majority simply asserts, as did the Commission, that Borden’s manipulation of its price premium harmed competition. However, it is the use of monopoly power, not just an effect on competition or competitive activity by a monopolist, that section 2 prohibits.
The price premium did not exist because of the monopoly. It was nothing more than evidence of a consumer preference for ReaLemon. The preference was created in part by the ReaLemon trademark and in part by successful advertising. The trademark was lawfully acquired by Borden and is protected by federal law. 15 U.S.C. § 1114. Manipulation of a consumer preference is not a use of monopoly power unless the preference was created somehow by the monopoly position in the market, and there is no such finding here. But, see Scherer, “The Posnerian Harvest: Separating Wheat from Chaff,” 86 Yale L.J. 974, 998 (1977).4 It is not a violation of the antitrust laws for a monopolist to take advantage of a consumer preference at the expense of its competitors.5
The majority may be reasoning that the lawful conduct forbidden by section 2 of the Sherman Act extends beyond a monopolist’s unreasonable use of monopoly power to include the use of any market power. The majority opinion is a little ambiguous on this point. If this is the basis of its decision, I think the majority errs in extending the Sherman Act to the otherwise lawful use of market power that is not monopoly power. However, even under this broader test, there is nothing unreasonable about a monopolist’s using its image advantage to its benefit.
Because I think the FTC was wrong to premise a violation of section 2 on Borden’s *521manipulation of its price premium, I would not affirm its decision. I would remand instead for the FTC to decide whether Borden did use monopoly profits from some markets to subsidize competition in other markets.
. The Commission heavily relied on its finding that competitors would have to sell at a price well below that of ReaLemon in order to compete. [1976-1979 Transfer Binder] Trade Reg. Rep. (CCH) at 21,507-21,508; 21,510. This finding is a little hard to accept, in view of the fact that one of Borden’s most successful competitors, Minute Maid, apparently charged significantly more for its product than Borden did for ReaLemon.
. The Commission adopted the analysis of Professor Scherer, who “find[s] it hard to avoid a value judgment that temporary price cutting to eliminate producers handicapped only by an inferior brand image is socially undesirable.” Scherer, “Predatory Pricing and the Sherman Act: A Comment,” 89 Harv.L.Rev. 869, 889 (1976). [1976-1979 Transfer Binder] Trade Reg. Rep. (CCH) at 21,509. This is indeed a value judgment, and it has nothing to do with the “use of monopoly power” that section 2 reaches. Whether I agree or disagree with Professor Scherer’s value judgment, it has no place here. Despite a rather general assumption to the contrary, section 2 of the Sherman Act is not a license for the courts or the FTC to choose among competing economic theories of the social good and to impose their own ideas of wise economic policy. That is the task of Congress, or arguably the FTC acting as a rule maker under the FTC Act. While broad, the definition of monopolization in section 2 is not quite that broad.
. The FTC did note that Borden “apparently” made some sales of ReaLemon at prices that were below its average total costs, after agreeing with the ALJ that Borden did not price ReaLemon below average variable cost. [1976-1979 Transfer Binder] Trade Reg. Rep. (CCH) at 21,507. Professors Areeda and Turner would find a monopolist that prices its products above average variable cost not guilty of monopolization. Areeda & Turner, “Predatory Pricing and Related Practices Under Section 2 of the Sherman Act,” 88 Harv.L.Rev. 697 (1975) . Professor Posner would instead find a violation of the Sherman Act when a monopolist sells below average total cost. Posner, Antitrust Law: An Economic Perspective 188 (1976) . The FTC expressly refused to decide whether Posner or Areeda/Turner correctly defined those pricing practices that constitute monopolization. [1976-1979 Transfer Binder] Trade Reg. Rep. (CCH) at 21,506 n.29. This is understandable since the Commission was concerned with manipulation of a price premium, not below cost pricing.
Absent a decision by the Commission that pricing below average total cost violates section 2 of the Sherman Act, the fact that Borden might have engaged in such pricing has no relevance to this case except, as the Commission used it, to show that Borden’s prices were low. This Court cannot take judicial notice that Posner’s and not some other economic theory correctly defines the use of monopoly power. In fact, the majority expressly refuses to make such a finding. Thus, the existence of pricing below average total cost does not support the majority’s decision.
The Commission also stated parenthetically that Borden subsidized its price cuts in part with continued monopoly pricing elsewhere. Id. at 21,508. This statement was made as an aside during the Commission’s discussion of Borden’s manipulation of its price premium. The statement would only be true if Posner’s *520definition of predatory pricing were adopted. Since the Commission did not decide that Pos-ner correctly defined pricing that constitutes a use of monopoly power there is no support for its statement that Borden used its monopoly profits to subsidize the fight against competition. The Commission’s offhand statement cannot be the basis for a finding of monopolization.
. The majority cites with approval Joskow and Klevorick, “A Framework for Analyzing Predatory Policy,” 89 Yale L.J. 213 (1979). Like Professor Scherer, these commentators would subject the competitive use of an irrational price premium to scrutiny under section 2. Again, like Professor Scherer, their reasons for doing so focus solely on the effect of such a brand preference on competition. As set out below, n.5, I do not believe that it is the function of the FTC to decide which consumer preferences are “rational” and which “irrational.” However, the fatal flaw I see in Joskow and Klevorick’s analysis is that it ignores the complete legitimacy of a brand preference created by advertising or by being first in the market. This is “business acumen,” and its use to affect competition is not forbidden by section 2 of the Sherman Act.
. The FTC disapproved of the consumer preference for ReaLemon because it resulted from a “spurious” product differentiation based on the strength of the ReaLemon trademark. [1976—1979 Transfer Binder] Trade Reg. Rep. (CCH) at 21,509-21,510. The FTC concluded that there was no rational reason for consumers to pay a premium for the ReaLemon brand name since the product is chemically indistinguishable from other brands of reconstituted lemon juice. Id. at 21,508, 21,510. I strongly disagree. The primary function of a brand name is to provide consumers an assurance of quality. It is quite rational for consumers to pay extra . for ReaLemon to minimize their risk of receiving inferior goods. Should any proof that this is rational be necessary this case provides a prime example. Borden’s principal competitor and the complaining party before the Commission was Golden Crown. The ALJ found and the Commission appears to agree that Golden Crown sold an adulterated product. Id. at 21,-501 n.16.