[11] Justice Arthur Goldberg filed a separate memorandum not dissenting from the judgment but disagreeing with the Court's interpretation of the Clayton Act.

Since the literal terms of § 7 thus do not dispose of our question, we must determine whether a congressional design to embrace bank mergers is revealed in the history of the statute.

The question appears to be one of first impression; we have been directed to no previous case in which a merger or consolidation was challenged under § 7 of the Clayton Act, as amended, where the acquiring corporation was not subject to the FTC's jurisdiction.

[13]Courts, prior to 1950, held that § 7 did not reach mergers, even though that device had supplanted stock acquisitions for corporate amalgamation.

Nonetheless, the Court said, Congress intended to reach substantially all corporate amalgamations: In other words, Congress contemplated that the 1950 amendment would give § 7 a reach which would bring the entire range of corporate amalgamations, from pure stock acquisitions to pure assets acquisitions, within the scope of § 7.

Thus, the stock-acquisition and assets-acquisition provisions, read together, reach mergers, which fit neither category perfectly but lie somewhere between the two ends of the spectrum.

[15]The Court noted that "after the passage of the [1950] amendment, some members of Congress, and for a time the Justice Department, voiced the view that bank mergers were still beyond the reach of the section."

"[22] Citing the Standard Stations case, the Court warned that "we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation.

"[23] Therefore, "in any case in which it is possible, without doing violence to the congressional objective embodied in § 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration.

Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.

A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended § 7.

It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid.

[34]In the 40 years since the Philadelphia Bank case was decided, its presumption of likelihood of adverse competitive impact and consequent violation of Clayton Act § 7, based on market share and concentration data, has undergone swings in various directions.

The companies manufactured and sold hardrock hydraulic underground drilling rigs (HHUDRs) in the United States and throughout the world.

The fact that the government can establish a prima facie case through evidence on only one factor, market concentration, does not negate the possible breadth of the analysis: "Evidence of market concentration simply provides a convenient starting point for a broader inquiry into future competitiveness."

The court said that later decisions "discarded Philadelphia Bank's insistence that a defendant 'clearly' disprove anticompetitive effect, and instead described the rebuttal burden simply in terms of a 'showing.'

Circuit again revisited the Philadelphia Bank presumption, in the context of whether the FTC showed a sufficient likelihood of success to get a preliminary injunction against a "duopoly" merger while it conducted an administrative proceeding under Clayton Act § 7.

[48] The FTC sought to block the merger by preliminary injunction while it conducted a § 7 Clayton Act proceeding, but the district court refused to grant the preliminary injunction, concluding that it was "more probable than not that consummation of the Heinz/Beech-Nut merger will actually increase competition in jarred baby food in the United States.

It wrongly insisted that the FTC show that prices to consumers would rise, which no court has ever held and which is contrary to precedent.

This can be a defense, the court said, but "the high market concentration levels present in this case require, in rebuttal, proof of extraordinary efficiencies, which the appellees failed to supply."

[54] The district court also found that "without the merger the two firms are unable to launch new products to compete with Gerber because they lack a sufficient shelf presence," and that this defense helped rebut the prima facie case.

[55] In summary: "Because the district court incorrectly assessed the merits of the appellees' rebuttal arguments, it improperly discounted the FTC's showing of likelihood of success.

[57] Some commentators expressed concern that the FTC's success in the Heinz case amounted to a "root-and-branch repudiation of the 'efficiencies defense.

'"[58] Another commentator argued that after the Heinz case, the agencies are pressing courts to require too high a level of proof as to rebuttal evidence.

[59] Another recent commentary, however, asserts that the FTC and Justice Department, as well as courts, give weight to properly-presented efficiency arguments, which may tip the balance in favor of a merger, even if they are not dispositive.

The conclusion is drawn that "there are numerous examples where efficiencies tipped the scale in favor of clearing the merger (collecting cases).

"[60] An Antitrust Division official recently insisted that the decision's "presumption remains the best way for courts to implement the concern for increasing concentration that motivated" the 1950 amendment of Section 7.

He argued that the presumption simplifies and provides a "more workable structure" for addressing horizontal merger cases, he added: This remains a sensible way of reflecting Congress's concern with trends toward increased concentration.

[61]Steven Salop, of Georgetown University, also recently praised Philadelphia Bank and concluded: All in all, the 1963 formulation of the PNB structural presumption was a forward-looking analytic approach to antitrust jurisprudence.

Looking forward, merger presumptions should be neither abandoned nor set in stone; instead, they should be permitted to continue to evolve, based on new or additional economic factors besides market shares and concentration.