by George Howard Earle, Jr.

“ And, in addition to this, it must never be forgotten that while the law remains and should be permanent, that conditions of civilization and trade are constantly changing; and that it was held under prior conditions, that certain conduct did not tend to restraint; still, under subsequent ones, it is permissible to hold that tendency may be clear even from identical conduct. So that identically opposite decisions may only demonstrate the unchangeable quality of the law's hostility to restraints of prosperity, however brought about. ”

“ If an agreement of that nature, while apt and proper for the purpose thus intended, should possibly, though only indirectly and unintentionally, affect interstate trade or commerce, in that event we think the agreement would be good. Otherwise, there is scarcely any agreement among men which has interstate or foreign commerce for its subject that may not remotely be said to in some obscure way affect that commerce, and be void. ”

“ In such cases there must be temptation added to power to constitute tendency, or that intent that is, of course, its equivalent, or most intensified form.
It is worth while to repeat that: "Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, for instance, the monopoly" (or, of course, that which tends to it) , "but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. ”

“ As has been indicated, the reason is that while the acquisition of "power" to restrain may be viewed with such just suspicion as to make it prima facie dangerous, illegal, to require explanation, that still, if that explanation satisfy the court that there was neither purpose nor interest amounting to dangerous temptation to misapply it, the justly and lawfully acquired power can be lawfully retained; because neither restraint nor the power acquired with interest or intent to restrain exists, necessary to constitute that tendency, which is equally illegal with restraint itself. ”

“ Justice White's, in the Securities case, [5] the latter because no stronger view can possibly be contended for than that of the minority, which dissented because the majority would not go even so far. ”