recognized that the FTC had several times, without success, asked Congress to pass a law authorizing it to obtain preliminary injunctions in merger cases.

Justice Abe Fortas wrote a strong dissent, saying that such awesome power to interfere with mergers should not be entrusted to the FTC without a specific authorization from Congress.

The court said that, under Dean Foods, an injunction can issue only if the commission can show that "an effective remedial order, once the merger was implemented, would otherwise be virtually impossible, thus rendering the enforcement of any final decree of divestiture futile."

The Second Circuit thought that the merger probably violated the antitrust laws but did not believe that effective relief would be “virtually impossible.” In Sampson v. Murray,[11] the Supreme Court held Dean Foods inapplicable to a stay of a GSA dismissal, stating: "In direct contrast to the claim of the FTC in Dean Foods that its jurisdiction would be effectively defeated by denial of relief, the Commission here has argued that judicial action interferes with the normal agency processes.

In the wake of similar decisions, in 1973 Congress passed specific legislation granting the FTC authority to bring suits in district courts to obtain preliminary injunctions to prevent consummation of mergers pending action before the FTC, under a legal standard requiring likelihoods of success on the merits rather than a defeat of the agency proceeding.

[12] In addition, Congress passed the Hart-Scott-Rodino Act, which also created administrative clearance procedures having the effect of delaying consummation of mergers while agency evaluation of the competitive impact took place.