420
Breyer, J., dissenting
This case, although it involves mushrooms rather than fruit, is identical in each of these three critical respects. No one, including the Court, claims otherwise. And I believe these similar characteristics demand a similar conclusion.
The Court sees an important difference in what it says is the fact that Wileman's fruit producers were subject to regulation (presumably price and supply regulation) that " 'displaced competition,' " to the "extent that they were 'expressly exempted from the antitrust laws.' " Ante, at 412 (quoting 521 U. S., at 461). The mushroom producers here, it says, are not " 'subjected to a uniform price, . . . restrictio[n] on supply,' " ante, at 413 (quoting 197 F. 3d 221, 222, 223 (CA6 1999)), or any other "common venture" that "depriv[es]" them of the "ability to compete," ante, at 414. And it characterizes this difference as "fundamental." Ante, at 411.
But the record indicates that the difference to which the Court points could not have been critical. The Court in Wileman did not refer to the presence of price or output regulations. It referred to the fact that Congress had "authorized" that kind of regulation. 521 U. S., at 462 (emphasis added). See also id., at 461 (citing agricultural marketing statute while noting that marketing orders issued under its authority "may include" price and quantity controls (emphasis added)). Both then-existing federal regulations and Justice Souter's dissenting opinion make clear that, at least in respect to some of Wileman's marketing orders, price and output regulations, while "authorized," were not, in fact, in place. See 7 CFR pts. 916, 917 (1997) (setting forth container, packaging, grade, and size regulations, but not price and output regulations); 521 U. S., at 500, n. 13 (Souter, J., dissenting) (noting that "the extent to which the Act eliminates competition varies among different marketing orders"). In this case, just as in Wileman, the Secretary of Agriculture is authorized to promulgate price and supply regulations. See ante, at 415 ("greater regula-
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