Potter Stewart

“ The Court today agrees with the Court of Appeals' answer to this question and holds that wholesalers are not customers 'competing' with the respondent. But the Court nevertheless goes on to hold that § 2 (d) was violated upon a theory not argued here by either party. The theory is that retailers who are in fact customers of independent wholesalers are somehow also 'customers' of the suppliers of those wholesalers. ”

“ The Commission has never suggested that this case should turn on any such construction of the term 'customer.' [2] Cf. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626.
Because the Court of Appeals was correct in rejecting the Commission's construction of § 2 (d) , I would affirm its judgment. ”