TRADE RESTRAINTS -- ANTI-TRUST LAWS -- COMMON SELLING AGENCY

Many students of the decisions under the Sherman Anti-Trust Act have voiced the opinion that the Supreme Court has been using one measuring stick to determine the legality of a combination of competing industrial units which takes the form of a merger or consolidation with highly centralized management and control of all activities, and quite a different stick for judging a combination formed for the purpose of stabilizing prices and production through cooperation in one form or another between competing units which retain their independence so far as management and control of production and financing are concerned. Thus in the steel shoe machinery, and harvester cases mergers were sustained in the face of the fact that the combinations in question were undoubtedly in a position to exert, and did in fact exert, substantial influence in the direction of raising the price level through the elimination of competition. On the other hand, in one of the earliest trade association cases a combination was condemned on the mere assumption that one of its objectives was to raise prices through concerted action: this was held in spite of the fact that the percentage of control was much smaller than in any of the merger cases, and that there were legitimate economic ends to be served by the combination in question, fully as worthy of attainment as those sought to be secured through the more closely integrated type