William O. Douglas

“ It is argued that Congress meant that commercial banking is no longer to be considered as an area of effective competition and that the Act establishes in banking 'a market test measurable only by larger commercial realities.'↑ The Chairman of the Federal Reserve System testified in the hearings that preceded enactment of the Bank Merger Act of 1966 that 'a Federal court order cannot recreate the two banks that formerly existed * * * (N) o matter how one may feel about whether the merger should have taken place in the first instance, there is no turning back. ”

“ A determination of the effect on competition within the meaning of § 7 of the Clayton Act is a familiar judicial task. The area of 'the convenience and needs of the community to be served,' now in focus as part of the defense under the 1966 Act, is related, though perhaps remotely, to the failing-company doctrine, long known to the courts in antitrust merger cases. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176. The appraisal of competitive factors is grist for the antitrust mill. ”

“ This conclusion does not raise serious constitutional questions by making the courts perform nonjudicial tasks. The 'rule of reason,' long prevalent in the antitrust field (see, e.g., Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683) , has been administered by the courts. ”