General Motors Corp. v. Tracy, 519 U.S. 278, 37 (1997)

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314

GENERAL MOTORS CORP. v. TRACY

Stevens, J., dissenting

tive consumer's choice of seller. Customers like GMC are not "captive to the need for bundled benefits," ante, at 301. Nor do the burdens imposed by the regulations have a significant impact on LDCs' activities within this market. Thus, while the gas sold by LDC's on the competitive market may be subject to the same regulations as the gas sold in the noncompetitive market, the different impact of the regulations on the economic decisions of both consumers and sellers makes it appropriate to characterize all gas sold in that market as "unbundled gas," see ante, at 297. Although the physical composition of the gas sold in the two markets is identical, I agree with what I understand the Court to be assuming, namely, that as a matter of economics "bundled gas" and "unbundled gas" should be viewed as different products. See ante, at 299, 301-303.

It is not uncommon for a firm with a monopolistic position in one market also to sell a second product in a competitive market. See, e. g., International Business Machines Corp. v. United States, 298 U. S. 131 (1936). Even regulated monopolies such as electric utilities may distribute goods, such as light bulbs, in a competitive market. See, e. g., Cantor v. Detroit Edison Co., 428 U. S. 579 (1976). There is no reason why an LDC might not develop a product line, such as thermostats or gas furnaces, to sell in the competitive market for such products. I do not believe that the fact that the LDC is heavily regulated in the "bundled gas" market would justify granting it a special preference in the market for thermostats or gas furnaces. Nor do I discern a significant relevant difference between competition in "unbundled gas" and competition in thermostats or gas furnaces.

It may well be true that without a discriminatory tax advantage in the competitive market, the LDC's would lose business to interstate competitors and therefore be forced to increase the rates charged to small local consumers. This circumstance may require the States to find new, and nondiscriminatory, methods for accommodating the needs of small

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