Cite as: 521 U. S. 457 (1997)
Souter, J., dissenting
vertising seems to reflect a conclusion that could reasonably be drawn after examining some of the "branded" advertising in the record before us. A consumer galvanized by respondents' depiction of "Mr. Plum," App. 542, might turn down a plum by any other name, but I doubt it.15
I acknowledge that in implementing a credit program for individual advertising in an otherwise valid compulsory program, the Government would need substantial leeway in determining whether such expenditures do in fact further the goal of expanding markets generally. But where, as here, no particular evaluation has been made, and the statute dealing with other fruit apparently assumes that some private advertising does serve the common good, and everything else is left to assertion, there could be no finding that a program completely denying credits for all individual advertis-15 The Secretary also maintains that credit programs are appropriate for market conditions specific to the almond industry, where a single producer cooperative has a 92% share of the market for direct sales to consumers, see Cal-Almond, Inc. v. United States Dept. of Agriculture, 14 F. 3d 429, 438, n. 9 (CA9 1993), because in such circumstances "certain types of individual and brand advertising may accomplish the government's goals of market stability and increased consumption without creating a significant free-rider problem." Brief for Petitioner 47. As with the Secretary's other proffered justifications for the seemingly arbitrary choices made in the AMAA provisions concerning advertising, this explanation rests on nothing more than an unsubstantiated assertion, here about the effects of brand advertising. Moreover, the legislative and regulatory history provides no indication that this was the reason for permitting credits for almonds, but not plums, nectarines, or California-grown peaches. To the extent the record says anything, it seems to say quite the contrary of what the Secretary claims. See S. Rep. No. 91-1204, p. 2 (1970) (incorporating letter from Almond Growers Council noting that credit provision for almonds "will be model legislation for other commodities"); 37 Fed. Reg. 3983 (1972). The Secretary's explanation only leads one to wonder about filberts, for example; is their production, too, under the domination of a large cooperative? Is the grapefruit market structured in a way that renders virtually generic the brand-specific advertising for the Indian River crop?
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