California Dental Assn. v. FTC, 526 U.S. 756, 34 (1999)

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Cite as: 526 U. S. 756 (1999)

Opinion of Breyer, J.

important and valuable and recognized as such by the public. Id., at 312-313, 315-316.

These facts, in the Court of Appeals' view, were sufficient to show "enough market power to harm competition through [the Association's] standard setting in the area of advertising." 128 F. 3d, at 730. And that conclusion is correct. Restrictions on advertising price discounts in Palo Alto may make a difference because potential patients may not respond readily to discount advertising by the handful (10%) of dentists who are not members of the Association. And that fact, in turn, means that the remaining 90% will prove less likely to engage in price competition. Facts such as these have previously led this Court to find market power— unless the defendant has overcome the showing with strong contrary evidence. See, e. g., Indiana Federation, 476 U. S., at 456-457; cf. United States v. Loew's Inc., 371 U. S. 38, 45 (1962); Brown Shoe Co. v. United States, 370 U. S. 294, 341-344 (1962); accord, United States v. Aluminum Co. of America, 148 F. 2d 416, 424 (CA2 1945). I can find no reason for departing from that precedent here.

II

In the Court's view, the legal analysis conducted by the Court of Appeals was insufficient, and the Court remands the case for a more thorough application of the rule of reason. But in what way did the Court of Appeals fail? I find the Court's answers to this question unsatisfactory—when one divides the overall Sherman Act question into its traditional component parts and adheres to traditional judicial practice for allocating the burdens of persuasion in an antitrust case.

Did the Court of Appeals misconceive the anticompetitive tendencies of the restrictions? After all, the object of the rule of reason is to separate those restraints that "may suppress or even destroy competition" from those that "merely regulat[e] and perhaps thereby promot[e] competition." Board of Trade of Chicago v. United States, 246 U. S. 231,

789

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