California Dental Assn. v. FTC, 526 U.S. 756, 36 (1999)

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

Opinion of Breyer, J.

whether a . . . limitation has the anticompetitive effect of artificially raising prices." Ante, at 776-777.

But if the Court means this statement as an argument against the anticompetitive tendencies that flow from an agreement not to advertise service quality, I believe it is the majority, and not the Court of Appeals, that is mistaken. An agreement not to advertise, say, "gentle care" is anticompetitive because it imposes an artificial barrier against each dentist's independent decision to advertise gentle care. That barrier, in turn, tends to inhibit those dentists who want to supply gentle care from getting together with those customers who want to buy gentle care. See P. Areeda & H. Hovenkamp, Antitrust Law ¶ 1505[H11541], p. 404 (Supp. 1998). There is adequate reason to believe that tendency present in this case. See supra, at 786.

Did the Court of Appeals inadequately consider possible procompetitive justifications? The Court seems to think so, for it says:

"[T]he [Association's] rule appears to reflect the prediction that any costs to competition associated with the elimination of across-the-board advertising will be outweighed by gains to consumer information (and hence competition) created by discount advertising that is exact, accurate, and more easily verifiable (at least by regulators)." Ante, at 775.

That may or may not be an accurate assessment of the Association's motives in adopting its rule, but it is of limited relevance. Cf. Board of Trade of Chicago, supra, at 238. The basic question is whether this, or some other, theoretically redeeming virtue in fact offsets the restrictions' anticompetitive effects in this case. Both court and Commission adequately answered that question.

The Commission found that the defendant did not make the necessary showing that a redeeming virtue existed in practice. See 121 F. T. C., at 319-320. The Court of Ap-

791

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