(40 Sup.Ct.) sense its antetypes, had the justification of industrial conditions, nor were they or it impelled by the necessity for integration, or compelled to unite in comprehensive enterprise because such had become a condition of success under the new order of things. On the contrary, that the organizers of the corporation and the preceding companies had illegal purpose from the very beginning, and $439 the corporation *became "a combination of combinations by which, directly or indirect ly, approximately 180 independent concerns were brought under one business control," which, measured by the amount of production, extended to 80 per cent. or 90 per cent. of the entire output of the country, and that its purpose was to secure great profits which were thought possible in the light of the history of its constituent combinations, and to accomplish permanently what those combinations had demonstrated could be accomplished temporarily, and thereby monopolize and restrain trade. 1 440 resenting the opinion) underestimated the op posing conditions and at the very beginning the corporation instead of relying upon its own power sought and obtained the assistance and the cooperation of its competitors (the independent companies). In other words the view was expressed that the testimony did "not show that the corporation in and of itself ever possessed or exerted sufficient power when acting alone to control prices of the products of the industry." Its power was efficient only when in co-operation with its competitors, and hence it concerted with them in the expedients of pools, associations, trade meetings, and finally in a system of dinners inaugurated in 1907 by the president of the company, E. H. Gary, and called "the Gary Dinners." The dinners were congregations of producers and "were nothing but trade meetings," successors of the other means of associated action and control through such action. They were instituted first in "stress of panic," but their potency being demonstrated they were after *The organizers, however, (we are still rep-wards called to control prices "in periods of industrial calm." "They were pools without As bearing upon the power obtained and what penalties" and more efficient in stabilizing the corporation did we give other citations from prices. But it was the further declaration Judge Woolley's opinion as follows: "The ore reserves acquired by the corporation at that "when joint action was either refused and subsequent to its organization, the relation or withdrawn the corporation's prices were which such reserves bear to ore bodies then exist-controlled by competition. ing and subsequently discovered, and their bear ing upon the question of monopoly of raw mate- The corporation, it was said, did not at any rials, are matters which have been discussed in the time abuse the power or ascendency it pospreceding opinion, and with the reasoning as well sessed. It resorted to none of the brutalities as with the conclusion that the corporation has not a monopoly of the raw materials of the steel indus441 try, I am in entire accord." "Further inquiring whether the corporation inherently possesses monopolistic power attention is next given to its proportion of the manufacture and sale of finished iron and steel products of the industry. Upon this subject there is a great volume of testimony, a detailed consideration of which in an opinion would be quite inexcusable. As a last analysis of this testimony, it is sufficient to say it shows that, large as was the corporation, and substantial as was its proportion of the business of the industry, the corporation was not able in the first ten years of its history to maintain its position in the increase of trade. During that period, its proportion of the domestic business decreased from 50.1 per cent. to 40.9 per cent. and its increase of business during that period was but 40.6 per cent. of its original volume. Its increase of business, measured by percentage, was exceeded by eight of its competitors, whose increase of business, likewise measured by percentage, ranged from 63 to 3779. This disparity in the increase of production indicates that the power of the corporation is not commensurate with its size, and that the size and the consequent power of the corporation are not sufficient to retard prosperous growth of efficient competitors." "From the vast amount of testimony, it is conclusively shown that the Steel Corporation did not attempt to exert a power, if such it posssessed, to oppress and destroy its competitors, and it is likewise disclosed by the history of the industry subsequent to the organization of the corporation that if it had made such an attempt it would have failed. It is also shown by the testimony that, acting independently and relying alone upon its power and wealth, great as they were, the corporation has never been able to dominate the steel industry by controlling the supply of raw materials, restraining production of finished products, or enhancing and maintaining the prices of either." or tyrannies that the cases illustrate of *other combinations. It did not secure freight rebates; it did not increase its profits by reducing the wages of its employés-whatever it did was not at the expense of labor; it did not increase its profits by lowering the quality of its products, nor create an artificial scarcity of them; it did not oppress or coerce its competitors-its competition, though vigorous, was fair; it did not undersell its competitors in some localities by reducing its prices there below these maintained elsewhere, or require its customers to enter into contracts limiting their purchases or restricting them in resale prices; it did not obtain customers by secret rebates or departures from its published prices; there was no evidence that it attempted to crush its competitors or drive them out of the market, nor did it take customers from its competitors by unfair means, and in its competition it seemed to make no difference between large and small competitors. Indeed it is said in many ways and illustrated that "instead of relying upon its own power to fix and maintain prices, the corporation, at its very beginning sought and obtained the assistance of others." It combined its power with that of its competitors. It did not have power in and of itself, and the control it exerted was only in and by association with its competitors. Its offense, therefore, such as it was, was not different from theirs and was distinguished | is the further assertion, had already reached from "theirs only in the leadership it assum- a high degree of efficiency, and in their inde ed in promulgating and perfecting the poli-pendence were factors in production and comcy." This leadership it gave up and it had petition, ceased to be such when brought unceased to offend against the law before this der the regulating control of the corporation, suit was brought. It was hence concluded which by uniting them offended the law, and that it should be distinguished from its or- that the organizers of the corporation "had ganizers and that their intent and unsuccess- in mind the specific purposes of the restraint ful attempt should not be attributed to it, of trade and the enormous profits resulting that it "in and of itself is not now and has from that restraint." never been a monopoly or a combination in restraint of trade," and a decree of dissolution should not be entered against it. *442 It is the contention of the corporation opposing those of the government and denying the illegal purposes charged against it, that the industry demanded qualities and an enterprise that lesser industries do not demand and must have a corresponding latitude and facility. Indeed it is insisted that the industry had practically, to quote the words of Judge Buffington, he quoting those of a witness, "reached the limit, or nearly, at which economies from a metallurgical or tive" " and " that instead, as was then the mechanical standpoint could be made effecpractice, of having one mill make 10, or 20, result from one mill making one product and or 50 products, the greatest economy would making that product continuously. " In oth This summary of the opinions, given necessarily in paraphrase, does not adequately represent their ability and strength, but it has value as indicating the contentions of the parties, and the ultimate propositions to which the contentions are addressed. The opinions indicate that the evidence admits of different deductions as to the genesis of the corporation and the purpose of its organizers, but only of a single deduction as to the power it attained and could exercise. Both opinions were clear and confident that the power of the corporation never did and does not now reach to monopoly, and their review of the evidence, and our independent examina-er words that there was a necessity for intetion of it, enables us to elect between their gration, and rescue from the old conditions— respective estimates of it, and we concur in from their improvidence and waste of effort the main with that of Judges Woolley and Hunt. And we add no comment except, it may be, that they underestimated the influence of the tendency and movement to integration, the appreciation of the necessity or value of the continuity of manufacture from the ore to the finished product. And there was such a tendency, and though it cannot be asserted it had become a necessity, it had certainly become a facility of industrial prog and that in redress of the conditions the corporation was formed; its purpose and effect being "salvage not monopoly," to quote the words of counsel. It was, is the insistence, the conception of ability, a vision of a great business which should embrace all lines of steel and all processes of manufacture, from the ore to the finished product, and which by reason of the economies thus it would be able to offer, could successfully to be effected, and the diversity of products compete in all the markets of the world." *444 ress. There was, therefore, much to urge it and give incentive to conduct that could accomplish it. From the nature and properties of the industry, the processes of produc-It is urged, further, that to the discernment tion were something more than the stage and of that great possibility was added a courage setting of the human activities. They deter- that dared attempt its accomplishment, and mined to an extent those activities, furnished the conception and the courage made the their motives, and gave test of their quality formation of the corporation notable, but did not, of course, that the activities could get any immunity from size, or resources, or energies, whether exerted in integrated plants or diversified ones. The contentions of the case, therefore, must be judged by the requirements of the law, not by accidental or adventitious circumstances. But what are such circumstances? We have seen that it was the view of the District Court that size was such a circumstance and had no accusing or excusing influence. The contention of the government is to the contrary. Its assertion is that the size of the corporation being the result of a not make it illegal. We state the contentions, we do not have to discuss them, or review the arguments advanced for their acceptance or repulsion. That is done in the opinions of the District Judges, and we may well despair to supplement the force of their representation of the conditions antecedent to the formation of the corporation, and in what respect and extent its formation changed them. Of course, in that representation and its details there is guidance to decision, but they must be rightly estimated to judge of what they persuade. Our present purpose is, not retrospect for it. self, however instructive, but practical deci. "combination *of powerful and able competi- sion upon existing conditions that we may not tors" had become "substantially dominant" by their disturbance, produce, or even risk, in the industry and illegal. And that this consequences of a concern that cannot now was determined. The companies combined, be computed. In other words, our considera 443 (40 Sup.Ct.) 446 was exerted. On the contrary, the only attempt at a fixation of prices was, as already said, through an appeal to and confederation with competitors, and the record shows besides that when competition occurred it was not in pretense, and the corporation, declined in productive powers-the competitors growing either against or in consequence of the competition. If against the competition we have an instance of movement against what the government insists was an irresistible force; if in consequence of competition, we have an illustration of the adage that "com tion should be of, not what the corporation but gave effect to the greater weight of the had power to do or did, but what it has now evidence. It is certain that no such power power to do and is doing, and what judgment shall be now pronounced-whether its dissolution, as the government prays, or the dismissal of the suit, as the corporation insists. [1, 2] The alternatives are perplexing, involve conflicting considerations, which, regarded in isolation, have diverse tendencies. We have seen, that the judges of the District Court unanimously concurred in the view that the corporation did not achieve monopoly, and such is our deduction, and it is against monopoly that the statute is directed; not against an expectation of it, but against its realization, and it is certain that it was not realized. The opposing conditions were un-petition is the life of trade" and is not easily derestimated. The power attained was much greater than that possessed by any one competitor-it was not greater than that possessed by all of them. Monopoly, therefore, was *445 not achieved, and *competitors had to be persuaded by pools, associations, trade meetings, and through the social form of dinners, all of them, it may be, violations of the law, but transient in their purpose and effect. They were scattered through the years from 1901 (the year of the formation of the corporation) until 1911, but, after instances of success and failure, were abandoned nine months before this suit was brought. There is no evidence that the abandonment was in prophecy of or dread of suit; and the illegal prac tices have not been resumed, nor is there any evidence of an intention to resume them, and certainly no "dangerous probability" of their resumption, the test for which Swift & Co. v. United States, 196 U. S. 396, 25 Sup. Ct. 276, 49 L. Ed. 518, is cited. It is our conclusion, therefore, as it was that of the judges below, that the practices were abandoned from a conviction of their futility, from the operation of forces that were not understood, or were underestimated, and the case is not peculiar. And we may say in passing that the government cannot fear their resumption, for it did not avail itself of the offer of the District Court to retain jurisdiction of the cause in order that, if illegal acts should be attempted, they could be restrained. What, then, can now be urged against the corporation? Can comparisons in other regards be made with its competitors and by such comparisons guilty or innocent existence be assigned it? It is greater in size and productive power than any of its competitors, equal or nearly equal to them all, but its power over prices was not and is not commensurate with its power to produce. It is true there is some testimony tending to show that the corporation had such power, but there was also testimony and a course of action tending strongly to the contrary. The conflict was by the judges of the District Court unanimously resolved against the existence of that power, and in doing so they repressed. The power of monopoly in the corporation under either illustration is an untenable accusation. [3] We may pause here for a moment to notice illustrations of the government of the purpose of the corporation, instancing its acquisition after its formation of control over the Shelby Steel Tube Company, the Union Steel Company, and, subsequently, the Tennessee Company. There is dispute over the reasons for these acquisitions which we shall not detail. There is, however, an important circumstance in connection with that of the Tennessee Company which is worthy to be noted. It was submitted to President Roosevelt and he gave it his approval. His approval, of course, did not make it legal; but it gives assurance of its legality, and we know from his earnestness in the public welfare he would have approved of nothing that had even a tendency to its detriment, and he testified he was not deceived and that he believed that "the Tennessee Coal & Iron People had a property which was almost worthless in their hands, nearly worthless to them, nearly worthless to the communities in which it was situated, and entirely worthless to any financial institution that had the securities the minute that any panic came, and that the only way to give value to it was to put it in the hands of people whose possession of it *447 *would be a guaranty that there was value to it." Such being the emergency, it seems like an extreme accusation to say that the corporation which relieved it, and, perhaps, rescued the company and the communities dependent upon it from disaster, was urged by unworthy motives. Did illegality attach afterwards and how? And what was the corporation to do with the property? Let it decay in desuetude, or develop its capabilities and resources? In the development, of course, there would be profit to the corporation; but there would be profit as well to the world. For this reason President Roosevelt sanctioned the purchase, and it would seem a distempered view of purchase and result to regard them as violations of law. [4] From this digression we return to the ⚫449 much discussion and much literature have are now distracting the world would be given composing solution. Of course, competition influences, and does not, more than they, regaffects prices; but it is only one among other ister itself in definite and legible effect. consideration of the conduct of the corpora- | period, it is a consequence of competitive contion to its competitors. Besides the circum-ditions. It has become an aphorism that stances which we have mentioned there are there is danger of deception in generalities, others of probative strength. The company's and in a case of this importance we should officers, and, as well, its competitors and cus- have something surer for judgment than spectomers, testified that its competition was gen- ulation, something more than a deduction, uine, direct, and vigorous and was reflected in prices and production. No practical witness equivocal of itself, even though the *facts it was produced by the government in opposi- rests on or asserts were not contradicted. If tion. Its contention is based on the size and the phenomena of production and prices were asserted dominance of the corporation-alleg- as easily resolved as the witness implied, ed power for evil, not the exertion of the pow-been wasted, and some of the problems that er in evil. Or, as counsel put it, "a combination may be illegal because of its purpose; it may be illegal because it acquires a dominating power, not as a result of normal growth and development, but as a result of a combination of competitors." Such composition and its resulting power constitute, in the We magnify the testimony by its consideraview of the government, the offense against customers of the corporation testify in multition. Against it competitors, dealers, and the law, and yet it is admitted "no competi- tude that no adventitious interference was tor came forward and said he had to accept employed to either fix or maintain prices, and the Steel Corporation's prices." But this ab- that they were constant or varied according sence of complaint counsel urge against the to natural conditions. Can this testimony be corporation. Competitors, it is said, followed minimized or dismissed by inferring that, as the corporation's prices, because they made intimated, it is an evidence of power, not of money by the imitation. Indeed, the imita-weakness, and power exerted, not only to tion is urged as *an evidence of the corpora- | suppress competition, but to compel testition's power. "Universal imitation," counsel mony, is the necessary inference, shading into assert, is "an evidence of power." In this perjury, to deny its exertion? The situation concord of action, the contention is, there is is indeed singular, and we may wonder at it, the sinister dominance of the corporation-wonder that the despotism of the corporation, "its extensive control of the industry is such so baneful to the world in the representation that the others [independent companies] fol- of the government, did not produce protesting low." Counsel, however, admit that there was "occasionally" some competition, but reject the suggestion that it extended practically to a war between the corporation and the independents. Counsel say: *448 victims. [5] But there are other paradoxes. The government does not hesitate to present consuch being, we were told in our schoolbooks, tradictions, though only one can be true: the "principle of contradiction." In one, competitors (the independents) are represented as oppressed by the superior power of the corporation; in the other, they are representpower's prices, which they could not do, if at ed as ascending to opulence by imitating that disadvantage from the other conditions of competition, and yet confederated action is not asserted. If it were, this suit would take on another cast. The competitors would cease to be the victims of the corporation, and would become its accomplices. And *450 It would seem that "200 witnesses" would be fairly representative. Besides the balance there is no other alternative. The sug*gestion of the "40,000 customers" was open to the that lurks in the government's contention that government to draw upon. Not having done the acceptance of the corporation's prices is so, is it not permissible to infer that none the submission of impotence to irresistible would testify to the existence of the influence power is, in view of the testimony of the comthat the government asserts? At any rate, petitors, untenable. They, as we have seen, not one was called, but instead the opinion deny restraint in any measure or illegal inof an editor of a trade journal is adduced, fluence of any kind. The government, thereand that of an author and teacher of econom fore, is reduced to the assertion that the size ics, whose philosophical deductions had, per- of the corporation, the power it may have, haps, fortification from experience as Deputy not the exertion of the power, is an abhorCommissioner of Corporations and as an em- rence to the law, or, as the government says, ployé in the Bureau of Corporations. His "the combination embodied in the corporation deduction was that, when prices are constant unduly restrains competition by its necessary through a definite period, an artificial influ- effect [the italics are the emphasis of the govence is indicated; if they vary during such a 'ernment], and therefore is unlawful regard (40 Sup.Ct.) less of purpose." "A wrongful purpose," the the distinction we made in the Standard Oll government adds, is "matter of aggravation." Case, 221 U. S. 1, 77, 31 Sup. Ct. 502, 55 L. Ed. The illegality is statical; purpose or move ment of any kind only its emphasis. To assent to that, to what extremes should we be led? Competition consists of business activities and ability-they make its life; but there may be fatalities in it. Are the activities to be encouraged when militant, and suppressed or regulated when triumphant, because of the dominance attained? To such paternalism the government's contention, which regards power, rather than its use, the determining consideration, seems to conduct. Certainly conducts we may say, for it is the inevitable logic of the government's contention that competition must not only be free, but that it must not be pressed to the ascendency of a competitor, for in ascendency there is the menace of monopoly. *452 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734, between acts done in violation of the statute and a condition brought about which "in and of itself, is not only a continued attempt to monopolize, but also a monopolization." In such case, we declared, "the duty to enforce the statute" required "the application of broader and more controlling" reme dies *than in the other. And the remedies applied conformed to the declaration; there was prohibition of future acts and there was dissolution of "the combination found to exist in violation of the statute" in order to "neutralize the extension and continually operating force which the possession of the power unlawfully obtained" had "brought" and would "continue to bring about." Are the case and its precepts applicable We have pointed out that there are several here? The Steel Corporation by its formaof the government's contentions which are tion united under one control competing comdifficult to represent or measure, and the one we are now considering—that is, the power is panies, and thus, it is urged, a condition was "unlawful regardless of purpose"-is anoth-brought about in violation of the statute, and er of them. It seems to us that it has for its ultimate principle and justification that strength in any producer or seller is a menace to the public interest and illegal, because there is potency in it for mischief. The re 451 gression is extreme, but *short of it the government cannot stop. The fallacy it conveys is manifest. therefore illegal, and became a "continually operating force" with the "possession of power unlawfully obtained." [6] But there are countervailing considerations. We have seen whatever there was of wrong intent could not be executed; whatever there was of evil effect was discontinued before this suft was brought, and this, we think, determines the decree. We say this in full realization of the requirements of the law. It is clear in its denunciation of monopolies, and equally clear in its direction that the courts of the nation shall prevent and restrain them (its language is "to prevent and restrain violations of" the act); but the com The corporation was formed in 1901, no act of aggression upon its competitors is charged against it, it confederated with them at times In offense against the law, but abandoned that before this suit was brought, and since 1911 no act in violation of law can be estab-mand is necessarily submissive to the condilished against it, except its existence be such tions which may exist and the usual powers an act. This is urged, as we have seen, and of a court of equity to adapt its remedies to that the interest of the public is involved, and those conditions. In other words, it is not that such interest is paramount to corpora- expected to enforce abstractions, and do intion or competitors. Granted-though it is jury thereby, it may be, to the purpose of the difficult to see how there can be restraint of law. It is this flexibility of discretion-intrade when there is no restraint of competi- deed, essential function-that makes its value tors in the trade, nor complaints by custom-in our jurisprudence-value in this case as in ers how can it be worked out of the situa- others. We do not mean to say that the law tion, and through what proposition of law? is not its own measure, and that it can be disOf course it calls for nothing other than a regarded, but only that the appropriate relief right application of the law, and, to repeat in each instance is remitted to a court of what we have said above, shall we declare equity to determine, not, and let us be explicit the law to be that size is an offense, even in this, to advance a policy contrary to that though it minds its own business, because of the law, but in submission to the law and what it does is imitated? The corporation is its policy, and in execution of both. And it is undoubtedly of impressive size, and it takes an effort of resolution not to be affected by it or to exaggerate its influence. But we must adhere to the law, and the law does not make mere size an offense, or the existence of unexerted power an offense. It, we repeat, requires overt acts, and trusts to its prohibition of them and its power to repress or punish them. It does not compel competltion, nor require all that is possible. Admitting, however, that there is pertinent strength in the propositions of the government, and in connection with them, we recall *453 We do not, certainly a matter for consideration that |