dissenting.
The case before us is not based on an “ethereal” right, but rather presents a far more substantial property right — the ability of the other bidding banks to profit from a fund of more than $34 million, a not insignifi*117cant amount even in these days. That conclusion is not contrary to McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), a case that was quite narrow in its actual holding. The Court concluded that although property rights are “clearly” within the protection of the mail fraud statute, “the intangible right of the citizenry to good government” is not. Id. at 356, 107 S.Ct. at 2879. That the Court had not intended to drastically narrow the scope of the statute became evident in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), a case decided in the following Term.
In Carpenter, the Court decided that confidential business information is a property right and that a scheme to disclose such information was within the proscription of the mail and wire fraud statutes even though the owner sustained no monetary loss. Id. at 25, 108 S.Ct. at 320. In categorizing confidential business information, the Court explained: “Kits intangible nature does not make it any less ‘property’.... McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.” Id. Reiterating the broad scope of the statute, the Court commented: “As we observed last Term in McNally, the words ‘to defraud’ in the mail fraud statute have the ‘common understanding’ of ‘wronging one in his property rights by dishonest methods or schemes, and usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’ ” Id. at 27, 108 S.Ct. at 321 (quoting McNally, 483 U.S. at 358, 107 S.Ct. at 2881 (internal quotations omitted)).
In a post-McNally case, United States v. Asher, 854 F.2d 1483, 1494 (3d Cir.1988), we concluded that the test for determining whether a deprivation is cognizable under the mail fraud statute is:
“[W]here rights are involved whose violation would lead to no concrete economic harm, and where those rights are the only rights involved in the case, McNally’s proscriptions would prevent upholding conviction on appeal. Where, on the other hand, a violation of the rights involved would result in depriving another of something of value, and the indictment ... [is] based on that fact, then the presence of intangible rights language will not prove fatal....”
See also United States v. Piccolo, 835 F.2d 517 (3d Cir.1987).
We returned to the property concept in United States v. Martinez, 905 F.2d 709 (3d Cir.1990), where the defendant had been convicted of fraudulently obtaining a medical license from the state by the use of forged school transcripts. The defendant argued that an unissued license was not property under McNally’s reasoning and was without value to the state. Id. at 713. We rejected this argument, finding “nothing in the Supreme Court’s jurisprudence on the mail fraud statute that requires or supports this theory of incipient or embryonic property.” Id. In declining to follow decisions in other circuits that distinguished between issued and unissued licenses, we concluded that Congress had not intended the reach of the mail fraud statute “to be dependent on artificial constructs and fleeting distinctions.” Id. at 715. Rather, we read the statute as “broadly protecting property interests.” Id.
The deprivation of property rights in conjunction with the federal fraud statutes has been addressed in the bid-rigging context. For example, in Ranke v. United States, 873 F.2d 1033, 1039-40 (7th Cir.1989), the Court upheld a conviction even though the purchaser of services actually suffered no loss because the successful bidder absorbed the bribes for confidential information out of its own profits. See also Belt v. United States, 868 F.2d 1208, 1214 (11th Cir.1989) (confidential bidding information as a result of bribery was a violation of the wire fraud statute). The thrust of these cases, however, was on the loss of property by persons soliciting bids rather than those submitting the bids.
The indictment here focuses on the loss of property by the competing bidders and not by the Commission. The indictment charges that defendants executed “a scheme and artifice to defraud federal chartered and insured financial institutions of money and property by depriving these financial institutions of a fair and honest opportunity to bid on public *118money....”1 No loss, either of pecuniary interest or of confidential information, on the part of the Commission is mentioned in the indictment, and thus, a Carpenter-type fraud is not asserted.
The indictment is somewhat unartfully worded in asserting that the other banks were denied the opportunity to bid. As a recitation of the facts in the indictment makes clear, however, the loss incurred by the competing bidders was actually the opportunity to have a legitimate bid accepted, not merely submitted. See Ginsburg v. United States, 909 F.2d 982, 984 (7th Cir.1990) (court is to look at specific conduct alleged and not at the legal characterization of facts set forth in the indictment).
Unlike the majority, I believe that the unsuccessful banks had a sufficient property interest in a legitimate bidding process to support the fraud charges here. The wire fraud statute is not to be given a narrow construction, but is instead to be interpreted to guard the public (including banks) against the many fraudulent schemes that the fertile minds of the criminally inclined may devise.
Transferring property concepts from one area of the law to another must be done cautiously with an appreciation of the differing circumstances and aims of the law that are implicated. With due recognition of the limitations that must be placed on transpositions of this nature, however, it seems to me that the tort of interference with prospective contractual relationships is a legitimate reference point.
The conduct of defendants as detailed in the indictment was palpably dishonest and was specifically intended to deprive the other banks of profitable contracts with the Commission. The competing bank submitting the highest legitimate bid had an enforceable proprietary interest that was harmed. This is demonstrated by the fact that the unsuccessful bidder would have had a civil remedy against these defendants and Bank A for the tortious interference with prospective contractual relationships.
Restatement (Second) of Torts § 766B provides that one who intentionally and improperly interferes with another’s prospective contractual relations is subject to liability for any resultant pecuniary harm if the improper conduct caused a third person not to enter into an agreement. See Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952, 955 (5th Cir.1975) (“[T]he common law has long held that the reasonable expectancy of a prospective contract is a property right to be protected from wrongful interference in the same sense as an existing contract is protected.”); see also Small v. United States, 333 F.2d 702, 704 (3d Cir.1964); Dupree v. United States, 264 F.2d 140, 143 (3d Cir.1959).
The same philosophy was expressed in a different context, almost a century ago. “[T]he notion is intolerable that a man should be protected by the law in the enjoyment of property, once it is acquired, but left unprotected by the law in his efforts to acquire it. The cup of Tantalus would be a fitting symbol for such a mockery.” Brennan v. United Hatters of North America, Local No. 17, 73 N.J.L. 729, 742-43, 65 A. 165, 171 (1906). For an even earlier holding, see Keeble v. Hickeringill, 103 Eng.Rep. 1127 (Q.B. 1707) (defendant’s actions in frightening away ducks from plaintiffs pond supported a claim for damages even though plaintiff had never taken possession of the fowl).
In Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 13 (3d Cir.1963), we observed that the law extends its protection further in the case of interference with existing contracts than in precon-tractual interference, but does draw a line beyond which no one may go in deliberately intermeddling with the business affairs of others. “The interest protected is [a] reasonable expectation of economic advantage.” Id. (footnote omitted); see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 130 (5th ed. 1984).
*119The victims’ loss in this case is not theoretical like the deprivation of faithful government service excluded by McNally, but is instead concrete and measurable. The allegations in the indictment make it clear that in each instance the bank that submitted the highest legitimate bid would have received the Commission’s money, but for the defendants’ fraud. Thus, the indictment establishes an actual, not an illusory or speculative loss to that bank in each of the instances when defendants disclosed the confidential information.
The indictment in United States v. Castor, 558 F.2d 379 (7th Cir.1977) charged the defendant with fraudulently obtaining a quite limited supply of liquor store permits to the detriment of those who were thus unable to obtain one. The Court concluded that the “diminished opportunity to obtain permits reduced the other applicants’ chances to make profits through the operation of package liquor stores ... [and was] a type of potential pecuniary injury ... [previously recognized as] the diminished opportunity to obtain a financially favorable contract.” Id. at 384; see also Johnson v. United States, 82 F.2d 500, 503 (6th Cir.1936) (unsuccessful bidder in bid-rigging scheme was defrauded for purposes of mail fraud statute).
A somewhat similar set of circumstances supported a conviction in Gregory v. United States, 253 F.2d 104 (5th Cir.1958). There, the defendant, through the fraudulent use of pre-dated postal cancellations, was able to send the actual results, rather than predictions, of football games as his entries in a contest that awarded a new automobile as a prize. The defendant argued that “so far as other contestants were concerned, until the bird was in the hand, the Cadillac did not belong to them either singularly or in a group.” Id. at 109. The Court rejected that contention and pointed out that the defendant’s conduct “was to cheat and deceive, to pretend and misrepresent. As such, it was to defraud.... ” Id.
All three cases are pre-McNally, but nothing there or in Carpenter would weaken the reasoning or holdings in the three Courts of Appeals decisions.2 The fraudulent deprivation of a reasonable expectation to secure an economic advantage falls within the proscriptions of the federal fraud statutes.
Unlike the majority, I am not persuaded that this case falls within the rationale of United States v. Ashman, 979 F.2d 469 (7th Cir.1992). There were actually two holdings in that case. In the first, the Court of Appeals affirmed the convictions where the defendants removed their customers from the competitive market place, thus denying them the opportunity to obtain a better price. Id. at 477-78. Only where a price limit had been set and the customer could not benefit from bidding did the Court find that the “open outcry” system did not constitute a deprivation of money or property. Id. at 479. Significantly, it does not appear that the indictment in Ashman charged the defendants with interfering with the property interest of other brokers or anyone other than the customers.
Several statements in the Ashman opinion, however, tend to support my position here. In reviewing its precedents, the Court of Appeals commented: “In previous cases, we have held that shifting or altering of economic risk or opportunity to affect a person’s financial position adversely deprives that person of money or property.” Id. at 478. “[Our prior decisions] demonstrate that the deliberate deprivation of a clear financial opportunity violate[s] the mail fraud statute.” Id.
In my view, the activities of defendants in this case constituted a “deliberate deprivation of a clear financial opportunity” and are thus punishable under the wire and bank fraud statutes. Accordingly, I would reverse the judgment of the district court and would uphold the indictment.
. Although the majority notes that the Commission allegedly made money because it received a higher interest rate on this deposit as a result of the fraud, it is possible that without the confidential information and the necessity for making political campaign contributions in return; Bank A would have made higher bids. The situation, therefore, is the same as in Ranke where the successful low bidder absorbed the costs of the bribes in its price.