Full opinion text
OPINION AND ORDER HOGAN, Senior District Judge. This is a private antitrust action brought by the Richter Concrete Corp. against Hilltop Basic Resources, Inc., a former producer of ready-mix concrete, and the Marquette Cement Co., a former supplier of cement to, among other companies, Hilltop. Jurisdiction is pursuant to 28 U.S.C. § 1337, as the plaintiff alleges violations of 15 U.S.C. §§ 1 and 2. Trial was commenced to a jury on October 6, 1980, and at the close of plaintiff’s case both defendants moved for directed verdicts pursuant to Rule 50, Federal Rules of Civil Procedure. After full hearing on the motions, and after considering the evidence in the case, the Court concluded that defendants’ motions were well taken and granted them. This Opinion and Order supplements the Court’s ruling from the bench. I. The Court is well aware that summary procedures, including directed verdicts, should be used “sparingly in complex antitrust litigation where motive and intent play leading roles ...” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). However, where a plaintiff fails to come forward with enough evidence “to support a reasonable finding in his favor, a district court has a duty to direct a verdict in favor of the opposing party.” Chrisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1139-40 (9th Cir. 1974); Mowery v. Standard Oil Co. of Ohio, 463 F.Supp. 762 (N.D.Ohio), affirmed, 590 F.2d 335 (6th Cir. 1976). The standard to be applied in determining the appropriateness of a directed verdict in an antitrust case is— “. . . whether or not, viewing the evidence as a whole, there is substantial evidence present that could support a finding, by reasonable jurors, for the non-moving party. ‘Substantial evidence is more than a mere scintilla.’ The evidence must be examined in the light most favorable to the nonmovant, and there can be no weighing of evidence. Finally [plaintiff] is entitled to the benefit of all reasonable inferences that may be drawn from its evidence.” Chrisholm, 498 F.2d at 1140; Mowery, 463 F.Supp. at 765. Applying this standard to the present case, the Court finds both defendants are entitled to directed verdicts on all counts of the complaint. II. Count I of plaintiff’s complaint, arising under § 2 of the Sherman Act, alleges that: “Defendants Hilltop and Marquette have attempted and conspired to monopolize the manufacture and delivery of ready-mix concrete in the Greater Cincinnati Metropolitan Area. In furtherance of said attempts and said conspiracy, defendant Hilltop has engaged in predatory pricing of ready-mix concrete, and has forced plaintiff Richter and other competing contractors either to lose contracts to defendant Hilltop or to take them at a loss, by submitting contract bids at unreasonably low figures. Defendant Marquette has enabled and encouraged said predatory actions of Hilltop by various means, including the making of an agreement dated December 17, 1964, pursuant to which Marquette agreed to cover one-half of any pre-income tax losses that might be suffered by Hilltop, and also agreed to assist Hilltop’s acquisitions of new equipment and expansion of operations, by guaranteeing certain loans made to Hilltop by the First National Bank of Chicago and the Northwestern Mutual Life Insurance Company up to the total amount of $3,000,000.00. “Such acts were done by the defendants for the purpose of forcing plaintiff Richter and other competitors out of the business of manufacturing, selling and delivering ready-mix concrete in the Greater Cincinnati Metropolitan Area, and enabling defendants to enjoy the profits of a monopoly position in such business.” Count I embraces two distinct claims. The first is a claim that Hilltop attempted to monopolize the production and distribution of ready-mix concrete in the Greater Cincinnati market area. The second claim is that Marquette and Hilltop conspired together for Hilltop to achieve that end. We think Count I must be so separated because plaintiff cannot logically assert that Marquette attempted to monopolize a business in which it did not even engage — the production and sale of ready-mix concrete. But the fact that Marquette was not itself engaged in the production and sale of ready-mix concrete does not perforce exclude any claim that it conspired with another company that was so engaged — in this case, Hilltop — to monopolize this particular market. See Cape Cod Food Products v. National Cranberry Association, 119 F.Supp. 900, 909 (D.Mass.1954). We therefore view Count I as presenting allegations of attempted monopolization against Hilltop alone, and of conspiracy to monopolize against both Hilltop and Marquette. As proof of these and plaintiff’s other claims discussed below, plaintiff introduced evidence which, when viewed in the light most favorable to it, tended to establish the events and circumstances discussed hereafter. During the years 1961 through 1963, the Richter Concrete Corp. was the largest producer of ready-mix concrete in the Cincinnati area, with a percentage market share of approximately 31%. The Hilltop Concrete Co. was a company comprised of several divisions. Hilltop’s Greater Cincinnati ready-mix concrete division was the second largest producer in the area, with a percentage market share of approximately 31%. The Marquette Cement Co. was a large corporation headquartered in Chicago which supplied cement to various ready-mix concrete producers in the Cincinnati area, including both Richter and Hilltop. On January 28, 1964, the company referred to as Old Richter was organized and chartered as a wholly owned subsidiary of the Stewart Sand & Material Co., itself a wholly-owned subsidiary of the Mississippi River Fuel Corporation. The Mississippi River Fuel Corp. was a large, conglomerate, New York Stock Exchange-listed corporation which had recently entered the cement production industry in competition with Marquette. On January 31, 1964, Old Richter acquired all of the assets of the Richter Concrete Corporation and certain assets of the Richter Transfer Co., including all its mixer trucks used in the ready-mix concrete business. The competitive situation, then, in late January, 1964, was this: Hilltop was a relatively small, closely held corporation facing as its principal competitor, Richter, a company having the backing and financial resources of a large national corporation. Marquette, which up until Richter’s acquisition by the Mississippi River Fuel Corp. had supplied cement to both Richter and Hilltop, stood to lose Richter as a cement customer-the largest ready-mix concrete producer in the Cincinnati area. On the other hand, Richter appeared to have greatly expanded its capacity for dominance in the Cincinnati market area, and the River Fuel Corp. had in Richter a major “captive customer” for its cement. Following the River Fuel Corporation’s acquisition of Richter, Hilltop and Marquette entered into negotiations designed to strengthen their respective market positions in the Cincinnati area. Hilltop devised a five year growth program of capital improvement and market expansion, and was in need of financing to implement it. Specifically, Hilltop sought to acquire new sources of aggregates, an existing concrete plant in Covington, Kentucky, a new plant site in Cincinnati, fifteen new mixer trucks in each of the five years of the program, construction of a new concrete plant in Dayton, Ohio, and maintenance of equipment operating efficiency through a systematic program of replacement. Hilltop estimated that it would need, in addition to internally generated capital, some $3,000,-000 in long term loans. Hilltop projected that if the five-year program was implemented it could attain, through market expansion and internal expansion, the following percentage market shares: 1964 30% (actual) 1965 40% (projected) 1966 42% 1967 43% 1968 43% 1969 44% 1970 44% 1971 45% 1972 45% 1973 45% 1974 45% Marquette, in turn, was eager to ensure the survival of Hilltop as a steady customer in Cincinnati for its cement. The parties intended that Marquette assist Hilltop in obtaining financing, and that Hilltop purchase a certain percentage of its cement requirements from Marquette. The fruit of these negotiations was the crucial agreement between Hilltop and Marquette dated December 17, 1964. The agreement provided: WHEREAS, Hilltop is engaged in the business of producing and selling aggregates and ready mix concrete in the marketing area of Southwestern Ohio and Northern Kentucky, comprising an important market for cement sold by Marquette; and WHEREAS, Hilltop has prepared, and plans to proceed in accordance with, a Five Year Growth Program, a copy of which is attached hereto, made a part hereof and marked Exhibit A; and WHEREAS, Hilltop, in order to proceed with its Five Year Growth Program, needs assistance in obtaining certain of the necessary funds to finance the said program; and WHEREAS, River Cement Company, a competitor of Marquette, is in the process of constructing a new cement plant from which it proposes to ship cement into the said marketing area and has acquired, directly or indirectly, control of Richter Concrete Company, a substantial ready mix company serving the same marketing area in which Hilltop solicits business; and WHEREAS, Marquette has reasonable grounds to believe that its sale of cement in the same marketing area will be substantially reduced as a result of the activities of River Cement Company; and WHEREAS, Hilltop fears that the competitive powers of River Cement Company and Richter Concrete Company, together with changing market conditions in aggregates, will curtail its ability to maintain its volume of business in the said marketing area; and WHEREAS, to assist Hilltop to proceed with its Five Year Growth Program, Marquette is willing to participate in the borrowing of up to $3,000,000 by Hilltop on the terms and conditions hereinafter set forth; the agreement provided in substance that: (1) Marquette would guarantee up to $3,000,000 of loans made to Hilltop, to finance Hilltop’s five-year growth program; (2) Marquette would supply and Hilltop would purchase from Marquette at least 37.5% of Hilltop’s cement requirements at the market prices current from time to time during the life of the agreement; and (3) Marquette would bear one-half of Hilltop’s pre-income tax losses sustained in consecutive three-year periods, the first ending on February 28, 1967. This provision covered only losses sustained by Hilltop’s total operations. Marquette would not be liable for losses incurred by only one of Hilltop’s divisions, such as the Greater Cincinnati ready-mix concrete division, if through all its operations Hilltop made a profit. With Marquette’s guarantee, Hilltop in fact was able to obtain loan commitments of up to $2,000,000 from the Northwestern Mutual Life Insurance Co., and up to $1,000,000 from the First National Bank of Chicago. Hilltop implemented the five-year program as planned, and in the first year its market share jumped from 30 to 40% of the total, reflecting the acquisition of the first 15 new mixer trucks and an existing concrete company in Covington, Kentucky. Thereafter, Hilltop’s market share increased less dramatically, and by the end of the program in 1969, Hilltop had achieved a 44.4% share of the Cincinnati ready mix market, slightly above the projected 44% Meanwhile, on January 22, 1965, the Federal Trade Commission issued a complaint challenging the River Fuel Corp.’s acquisition of Richter. Both Robert J. Morrison, president of Marquette, and John F. Steele, president of Hilltop, testified in 1967 before the FTC in the Richter proceedings as to terms of the Hilltop-Marquette agreement. On May 29, 1967, the FTC ruled that the River Fuel Corp.’s acquisition of Richter’s assets violated the anti-merger provisions of Section 7 of the Clayton Act, and ordered it to sell the Richter business. The River Fuel Corp. eventually found a buyer in the Collinwood Shale Brick & Supply Co. On October 11, 1972, Collinwood entered into an agreement with Old Richter to purchase for the sum of $300,000 substantially all of Old Richter’s business and assets used in the production and sale of ready-mix concrete. Collinwood and the River Fuel Corp. submitted to the FTC an “Application for Approval of Sale Transaction,” wherein Collinwood stated that it “intends to place initial emphasis on increasing sales volumes” of New Richter (the new Collinwood subsidiary), projecting sales of 229,000 cubic yards of concrete in its first year of operation. To put this sales projection in perspective, Old Richter sold only about 186,000 cubic yards of concrete in its final year of operation. Pending FTC approval of the sale transaction, the officers of Old Richter continued to manage the company as agents of New Richter. In due course the FTC approved the transfer, and the parties formally closed the sale on March 20, 1973. Thus, by October 11, 1972, or at the very latest by March 20, 1973, the original concerns which led Hilltop and Marquette to enter the 1964 agreement no longer existed. Richter had diminished considerably in strength as Hilltop’s competitor (its percentage market share had declined under River Fuel Corp. ownership from approximately 27% in 1965 to approximately 17% in 1972) and Marquette no longer feared loss of its Cincinnati market for cement. In early 1972, therefore, Marquette and Hilltop considered modifying the 1964 agreement. In particular, Marquette wanted to be relieved of its obligations under the agreement. According to the terms of the agreement, Marquette was obligated to provide Hilltop with 37.5% of its total cement requirements at prevailing market prices. The prevailing market prices, however, were frequently below the prices Marquette wanted to charge. Were it not for its contractual obligation to sell to Hilltop at competitive market prices, Marquette either would have sold cement to Hilltop at higher prices, or would not have sold to Hilltop at all. Marquette found this aspect of the agreement burdensome, and accordingly wanted it modified. Hilltop, however, found that the agreement worked much to its advantage. The requirements portion of the agreement enabled it to obtain needed cement from Marquette in times of shortage. The loan guarantee provisions were integral terms of the loans received from Northwestern Mutual and First National of Chicago, and these terms could not be dropped without impairing the conditions of the loans to some degree. And although Hilltop had operated profitably during the life of the agreement, and had never invoked the terms of the loss-makeup provision, it derived a level of “business comfort” from its existence. No doubt, also, its existence enhanced Hilltop’s credit worthiness. Therefore, Hilltop was reluctant to modify the agreement in any substantial manner. Hilltop did agree, however, to reduce its purchases of cement from Marquette. In the fiscal years ending February 28, 1973, 1974 and 1975, Hilltop’s actual purchases of cement from Marquette were in the range of 10-12% of its requirements. During the period between October, 1972 and July, 1974, competition among the Cincinnati area ready-mix concrete producers was fierce. Since the quality of concrete is essentially the same regardless of who produces it, competition took the form of offering better, more efficient service, longer or weekend hours of operation, more favorable terms of payment, and, of course, lower prices. Price competition was particularly acute because general contractors, the major purchasers of ready-mix concrete, as well as the sellers of ready-mix concrete, were awarded jobs on the basis of competitive bidding. Accordingly, purchasers of ready-mix concrete actively promoted competition among the sellers by informing those who submitted quotations whether their quotations were above, below, or competitive with the other sellers. Frequently, a purchaser would tell a seller exactly what the competition was quoting, inviting the seller to meet or beat the competitor’s price. This system of playing sellers off against each other served to drive prices downward. Some producers were unable to withstand this pressure. Of the approximately 25 companies selling ready-mix concrete in the Cincinnati area, several of them, including New Richter, fell by the wayside. But entry into the industry, at least on a small level, was fairly easy, and several more of the 25 companies were newcomers during the period. Although it remained the dominant producer of ready-mix concrete during this period, Hilltop was not immune to the effects of this competition. As the largest producer with the greatest number of concrete plants and mixer trucks, Hilltop held a clear edge over the competitors in terms of being able to service large jobs or wide geographic areas. But in other respects, Hilltop had to bow to the pressures of competition. In October, 1973, for instance, Hilltop notified its customers that they would be charged a IV2% carrying charge on all late payments. But since such late payments were customary in the industry and no other concrete supplier charged for them, Hilltop’s customers resisted the late payment charge as a price increase. Accordingly, Hilltop was forced to abandon the late payment policy after two months. Then, in late December, 1973, Hilltop announced a price increase effective March 1, 1974. However, none of the major Cincinnati competitors, including Richter, followed suit, and because it was thereafter quoting prices above the competition, Hilltop lost approximately 20 major contract awards in a row. In September or October, 1974, Hilltop instituted a full-load policy, requiring its customers either to take full truckloads of concrete or to pay a premium for part-loads. This policy also met with customer resistance and several customers purchased concrete from other companies because of the policy. Finally, the year 1974 brought an influx of non-union producers who could offer concrete at prices lower than could a union operation such as Hilltop. As a consequence, Hilltop’s business suffered, and in the Hamilton area, its business dwindled to nothing by the end of the year. Hilltop’s percentage market share declined from approximately 40% in 1972 to approximately 30% in 1974. Hilltop’s profits also suffered during the period. Although the winter months, usually from November through February or March, were traditionally bleak and unprofitable ones both for Hilltop’s concrete division and the industry in general, there being little construction at this time of year, Hilltop operated profitably in its Greater Cincinnati ready-mix division and overall through the fiscal year ending February 28, 1973. Hilltop’s Cincinnati division lost money through much of the fiscal year ending February 28, 1974, and closed the year with a net operating loss of $448,515. However, the company as a whole earned $48,-565 that year, and the loss-makeup provisions of the 1964 Hilltop-Marquette agreement did not come into play. Then, Hilltop’s Cincinnati division lost money in March through May, 1974, and in June, the mixer truck drivers began an industry-wide strike. The strike lasted through June and July, and selling no concrete at all during the strike, the division lost money during those two months as well. The Cincinnati division lost money again in August, 1974, then had only two profitable months before it headed once again into the bleak unprofitable months of November through February. Hilltop closed the fiscal year ending February 28, 1975 with net operating losses from its Cincinnati ready-mix division of $853,920, and overall losses of $1,038,047. Thus, Hilltop’s Cincinnati ready-mix division lost money overall during the twenty-two months in which New Richter did business before failing in July, 1974. The division sold its concrete during the period at an average price of $18.80 per cubic yard, while incurring average total costs of $19.88 per cubic yard. The parties have stipulated, however, that the division’s average selling price over the period was above its average variable costs of production. It is only the total costs which the division failed to recover during the period. Meanwhile, in July, 1974, having failed to earn enough from its other operations to counterbalance its losses from its Cincinnati ready-mix division, Hilltop first notified Marquette that it would probably sustain overall losses for the year, and would invoke the loss-makeup provision of the 1964 agreement. Marquette, claiming Hilltop had breached the 1964 agreement, repudiated it, and refused to cover any portion of Hilltop’s losses. On November 2,1974, Hilltop sued for a declaratory judgment that the agreement was valid and effective, and for enforcement of the loss-makeup provision. On June 6, 1979, this Court upheld Hilltop’s claim against Marquette, and ordered Marquette to cover one-half of Hilltop’s pre-income tax losses as per the 1964 agreement. Hilltop Concrete Corp. v. Marquette Cement Mfg. Co., C-1-74-451, Findings of Fact, doc. 79 (May 7, 1979); Final Judgment, doc. 80 (June 6,1979) (S.D.Ohio). Marquette eventually paid Hilltop approximately $760,000.00 under the loss-makeup provision. While Hilltop suffered financially during the period, Richter fared even worse. Richter had lost money under the control of the River Fuel Corp., and proceeded to do the same under Collinwood. In its fiscal year ending April 30, 1973, Richter had a net operating loss of $303,700. In its fiscal year ending April 30, 1974, Richter had a net operating loss of $202,517. Between April 30, 1974 and the closure of operation in the Cincinnati area in July, 1974, Richter had a net operating loss of $159,460. Over the entire period, Richter sold its concrete at an average price of $19.95 per cubic yard. Its average total costs for the period, however, were $22.39 per cubic yard. Losses during its 22 months of operation were such that on July 27, 1974, Richter publicly announced its closing. On August 1, 1974, New Richter entered into an agreement with Reading Central Mixed Concrete, Inc., for the sale of substantially all its assets other than mixer trucks involved in the sale of ready-mix concrete in the Cincinnati area. The total purchase price was $325,000 plus $48,865.34 for raw materials on hand. The net payment to New Richter by Reading, after proration of taxes and expenses, was $370,-719.59. Plaintiff’s evidence thus established that during much of the relevant period, Hilltop priced its concrete below levels sufficient to recover its average total costs. Plaintiff seeks to characterize Hilltop’s prices as predatory, and alleges further that Marquette encouraged such predatory pricing by entering into the 1964 agreement. Plaintiff’s contention is that defendants’ actions caused it to either lose contracts to Hilltop or to take contracts at a loss, and, eventually, go out of business. Accordingly, plaintiff seeks to recover the alleged damages from defendants. III. The gravamen of an attempt to monopolize is that a defendant must have both the power and the specific intent to monopolize. To prove an attempt to monopolize, plaintiff must show: (1) That Hilltop had the specific intent to monopolize or to destroy competition within the relevant market; (2) That Hilltop engaged in some predatory or anticompetitive conduct in furtherance of that intent; (3) That Hilltop’s conduct created a dangerous probability that monopolization could occur; and (4) That Hilltop’s conduct proximately caused plaintiff some antitrust injury. California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 736 (9th Cir. 1979); see also Chillicothe Sand & Gravel v. Martin-Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); Gough v. Rossmoor Corp., 585 F.2d 381, 390 (9th Cir.), cert, denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979); and American Tobacco Co. v. United States, supra, n. 1, 328 U.S. at 785, 66 S.Ct. at 1127. Plaintiff has no direct evidence that Hilltop specifically intended to monopolize the Greater Cincinnati ready-mix concrete market. Instead, plaintiff relies on proof of Hilltop’s alleged predatory pricing to form a basis for the inference that Hilltop harbored such intent. We focus our initial inquiry, then, on whether plaintiff introduced sufficient evidence for a jury to reasonably conclude that Hilltop engaged in predatory pricing. As will be seen, however, this inquiry will necessarily involve considerations of Hilltop’s intent. Before considering plaintiff’s evidence, some definition of predatory pricing is required. Predation, according to Webster, is “the act of preying or plundering.” Webster’s Third New International Dictionary, 1967 Ed. It is “depredation, despoilment,” or “rapacity.” Id. As a pricing practice, predation consists of the deliberate sacrifice of current revenues for the purpose of driving rivals out of the market with the hope of recouping the losses through higher profits earned in the absence of competition. Hanson v. Shell Oil Co., 541 F.2d 1352, 1358 (9th Cir. 1976), cert, denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977); International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 723 (5th Cir. 1975), cert, denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976); Areeda and Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697, 698 (1975). This definition gives a fair sense of the concept of predatory pricing and is one on which the parties can agree— it is pricing derived, not from considerations of achieving profitability within the framework of competition, but from considerations of eliminating competition in order to achieve profitability. This definition does not, however, provide any useful guidelines for distinguishing the one form of pricing, which is a healthy reflection of competition and to be encouraged, from the other, which is predatory, anti-social and unlawful. While predation may be “depredation, despoilment” or “rapacity,” competition at its most vigorous level looks like all of these things. Yet its preservation, preferably at this most vigorous level, is the very thing the antitrust laws are intended to accomplish. See Janich Bros. v. American Distilling Co., 570 F.2d 848, 855 (9th Cir. 1977), cert, denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978); International Air Industries, supra, 517 F.2d at 721; and Anheuser-Busch, Inc. v. FTC, 289 F.2d 835, 840 (7th Cir. 1961). “If the law is overzealous in guarding against predatory pricing, it may well inhibit the competitive dynamics it seeks to promote.” In re IBM Peripheral EDP Devices, 481 F.Supp. 965, 991 (N.D.Cal.1977). Great care must be taken, if the proper ends of the antitrust laws are to be served, in differentiating between legitimate price competition and that predatory pricing which constitutes an unlawful attempt to monopolize. The parties are at fundamental odds as to how this should be done. Plaintiff urges the Court to adopt a flexible approach by considering Hilltop’s prices, not only in relation to cost, but also in relation to “other circumstances.” Plaintiff demonstrated that Hilltop’s average prices were below its average total costs for the period; yet the parties have stipulated that Hilltop’s prices were above its average variable costs. Plaintiff concedes that just because a firm fails to recover its average total costs, i.e., just because a firm is losing money, no presumption of predation should arise. But plaintiff argues that when below-cost prices are coupled with certain “other circumstances,” one may reasonably draw an inference of predation. Plaintiff is unable to enlighten the Court as a matter of law as to what these “other circumstances” may be. Plaintiff only argues that in the present case, the existence of the loss-makeup provisions in the 1964 Hilltop-Marquette agreement, and the likelihood that a normal businessman would take these provisions into account when deciding whether his firm would be better off selling its product at a loss than not selling at all, constitute such “other circumstances” which, when coupled with Hilltop’s below-cost prices, are sufficient to raise an inference of predation. Defendants, on the other hand, press for the adoption of a more rigid rule, and are quite definite about what that rule should be: prices above marginal or average variable cost should be conclusively presumed non-predatory; prices below marginal or average variable cost should be conclusively presumed predatory. Adoption of this rule would make this case quite simple, for, if this is indeed the law, the parties have stipulated that Hilltop has not engaged in predatory pricing. The principal authorities in support of defendants’ position are Professors Areeda and Turner. Areeda and Turner, using a strictly cost-based standard for predatory pricing, maintain that prices above marginal cost should be conclusively presumed non-predatory. Areeda and Turner, supra, 88 Harv.L.Rev. at 733. A price floor above this level, they argue, will result in inefficient resource allocation and reduce incentives to legitimately compete. Id. at 709-12. But the firm which prices below marginal cost “is not only incurring private losses but wasting social resources when marginal costs exceed the value of what is produced.” Id. at 712. “And pricing below marginal cost greatly increases the possibility that rivalry will be extinguished or prevented for reasons unrelated to the efficiency of the monopolist.” Id. Accordingly, they maintain that prices below marginal cost should be conclusively presumed predatory. Id. Since marginal cost is difficult to ascertain, Areeda and Turner suggest the use of average variable cost as a surrogate for marginal cost, Id. at 716-718, and conclude that “[a] price at or above reasonably anticipated average variable cost should be conclusively presumed lawful,” while “[a] price below reasonably anticipated average variable cost should be conclusively presumed unlawful.” Id. at 733. Several courts, relying heavily on Areeda and Turner, have adopted the marginal or average variable cost standard for predatory pricing. See Hanson v. Shell, supra, 541 F.2d at 1359 (“Hanson’s failure to show that Shell’s prices were below its marginal or average variable costs was a failure as a matter of law to present a prima facie case under § 2”); International Air Industries, supra, 517 F.2d at 724 (“[I]n order to prevail as a matter of law, a plaintiff must at least show that ... a competitor is charging a price below his average variable cost in the competitive market ...”); Janich Bros., supra, 570 F.2d at 858-59 (“Janich has not come forth with sufficient evidence to go to the jury on a contention that American sold gin and vodka below average variable costs for the period 1961-62 . . . Consequently, insofar as the attempt to monopolize claim was founded on predatory pricing, a directed verdict against Janich was proper.”); Weber v. Wynne, 431 F.Supp. 1048, 1059 (D.N.J.1977) (“I follow the [International Air Industries v.] American Excelsior and the Areeda and Turner analysis and find that any price which is at or above average variable cost may be competitive but is not predatory.”) The Areeda and Turner thesis, however, has not been universally accepted. Those who reject it do so principally because of Areeda and Turner’s dogged insistence upon use of a standard which optimizes short-run welfare in spite of their own recognition that such a standard in the long run may have adverse, anticompetitive effects. Professor Scherer, for example, argues that “it is unrealistic and even analytically wrong to apply a simple short-run price-cost rule for determining whether exclusionary pricing by a monopolist is socially undesirable and therefore predatory.” Scherer, Predatory Pricing and the Sherman Act: A Comment, 89 Harv.L.Rev. 869 (1976). He proposes instead a “rule-of-reason” analysis, taking into account the variety of factors affecting long-run welfare in light of the pricing firm’s intent and the actual structural consequences to the industry flowing from the pricing firm’s conduct. Id. at 890. Professor Williamson likewise feels that negligible benefits would flow from allowing the monopolist to exclude competition by pricing at marginal cost only to restrict output and raise prices once competition has been eliminated. Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L.J. 284, 340 (1977). As an alternative to Areeda and Turner’s marginal-cost rule, Williamson proposes a complex set of rules, a different one to be applied according to whether a monopolist is pricing in reaction to established or new entries, whether its pricing policies extend over the short, long or intermediate run, and whether the monopolist faces a normal demand curve or is operating in a market . plagued by conditions of chronic excess supply. Id. at 331-37. A third author, Professor Sehmalensee, joins Professors Scherer and Williamson in rejecting Areeda and Turner’s marginal cost test as one of universal applicability. Sehmalensee, On the Use of Economic Models in Antitrust: The Realemon Case, 127 U.Pa.L.Rev. 994, 1128 (1979). But, attempting to apply Williamson’s per se rules to the real-life facts of the Realemon case, Sehmalensee found them difficult to apply and apparently based on an economic model not in conformity with real-life conditions. Id. at 124-28. From this he concludes that the only economically defensible policy approach to predatory pricing is Scherer’s proposal that a “rule of reason” be followed, perhaps tempered by Bork’s admonition that a strong presumption be made against the existence of predation. Id. at 1028-31. Besides generating academic discussion, Areeda and Turner’s standard for predatory pricing has met with varied acceptance by the courts. At least two Circuit Courts of Appeals have considered Areeda and Turner’s marginal or average variable cost test, have found it to be very useful as an analytical tool, but have declined to assign it any more importance than that. See Pacific Engineering & Production Co. of Nevada v. Kerr-McGee Corp., 551 F.2d 790, 797 (10th Cir.), cert, denied, 434 U.S. 879, 98 S.Ct. 234, 54 L.Ed.2d 160, rehearing denied, 434 U.S. 977, 98 S.Ct. 543, 54 L.Ed.2d 472 (1977); and Chillicothe Sand & Gravel v. Martin Marietta Corp., 615 F.2d 427, 432 (7th Cir. 1980). Both Courts recognized the relevance and importance of marginal or average variable tests to determining the presence of predatory pricing, but neither refused to consider the presence of “other factors” in evaluating whether a plaintiff had established a prima facie case under Section 2. 551 F.2d at 797; 615 F.2d at 432. In this, they too would seem to follow Scherer’s “rule of reason” analysis. In rebuttal to these criticisms, Areeda and Turner defend their proposition: First, predatory pricing rules must take into account the proclivity of competitors to challenge a rival’s price cuts, particularly when the rival is a larger firm. The threat of litigation may therefore deter legitimate competitive pricing. Second, pricing at SRMC [short run marginal cost] is the result in competitive markets, and has the social welfare virtue of avoiding wasteful idling of current productive resources. Third, rules requiring price floors higher than SRMC will tend to preserve inefficient rivals or attract inefficient entry. Fourth, elimination or exclusion of rivals may in some instances cause long-run welfare losses that exceed the short-run gains from fuller use of capacity, but such long-run consequences cannot feasibly be incorporated into legal rules because they are intrinsically speculative and indeterminate. Areeda and Turner, Williamson on Predatory Pricing, 87 Yale L.J. 1337, 1339 (1978). In an opinion which we find highly persuasive and which we largely adopt, the District Court for the Northern District of California offered the following criticisms of Areeda and Turner’s justifications for use of the marginal or average variable cost rule. First, the Court wrote, adoption of a marginal or average variable cost test because it may deter frivolous suits “smacks of overkill.” 481 F.Supp. at 992. Although a rule preserving competitive incentives is necessary, a rule sanctioning all price levels above average total cost would adequately serve this purpose. See Schmalensee, supra, 127 U.Pa.L.Rev. at 1029. It would not, however, share the marginal or average variable cost rule’s vice of allowing a monopolist, for the sake of preserving incentives, to unreasonably destroy its competition. 481 F.Supp. at 992. Second, the rationale that a price floor above marginal cost will tend to preserve inefficient rivals is “interesting, but highly questionable.” Id. at 993. Even conceding some value to a rule apparently delegating responsibility to the monopolist for rooting out and destroying economic inefficiency, Areeda and Turner, and those courts adopting their rule, overlook the tendency of the marginal or average variable cost rule to destroy equally and even more efficient rivals, unless they have pockets as deep as the monopolist’s. Id. at 991-93. To [state] what is self-evident, if a firm sells below its average cost it is incurring a loss, equally efficient firms are incurring a loss, and more efficient firms (if their average cost is lower than the monopolist’s average cost but greater than the price) will also be incurring a loss. Only firms able to withstand losses for as long as the monopolist decides to inflict them will survive, others will perish. Id. at 992. Thus, the Areeda and Turner rule inherently bears the potential mischief of transforming competition from a battle of efficiency into a battle of bankrolls. Scherer’s “rule of reason” would not share this vice. If the principal criticism of Areeda and Turner’s short-run welfare maximization argument is that it is short-sighted, Id. at 993, Scherer, supra, 89 Harv.L.Rev. at 883-900, Williamson, supra, 87 Yale L.J. at 291, their ultimate defense of the rule seems to be that any other would be unmanageable. Even Areeda and Turner recognize that “the net long-run consequences of [marginal cost] pricing might be adverse because of its effect on existing or potential rivals.” Areeda and Turner, Scherer on Predatory Pricing: A Reply, 89 Harv.L.Rev. 868, 896-97 (1976). Nevertheless, they conclude that “long-run possibilities must be disregarded because they are intrinsically speculative and indeterminate.” Id. at 897. Furthermore, “[n]o suitable administrable rules could be formulated to give them recognition.” Id. But as the Court in In Re IBM pointed out, “ease of application is a poor argument for adopting a rule that admittedly ignores important considerations of economic efficiency, especially when the main justification for that rule is economic efficiency.” 481 F.Supp. at 993. “Section 2 of the Sherman Act makes no exception for cases involving administrative difficulty.” Chillicothe Sand and Gravel, supra, 615 F.2d at 432. But even granting ease of application paramount consideration, Areeda and Turner’s marginal cost test can fare no better than the others. Marginal cost is essentially a fictional figure, not readily ascertainable from any corporate book of account— hence the need for average variable cost as a surrogate. In short, [Areeda and Turner] argue that a marginal cost test will optimize social welfare. Then they admit that it will not. They argue that a marginal cost test is easier to apply than a long-run welfare maximizing test, then they suggest surrogates because marginal cost data is impossible to come by. Jj« sfc ifc # }{c Areeda and Turner have made a policy judgment. The economic analysis used to justify that judgment is incomplete, and the judgment itself stands contradicted by the economic, political, and social policies of the Sherman Act. A conclusive presumption of the legality of an unprofitably low price, merely because it is above marginal cost, would truly be a “defendant’s paradise.” In Re IBM, 481 F.Supp. at 994-95. We join Professors Scherer, Williamson and Schmalensee, and the IBM Court in rejecting Areeda and Turner’s use of marginal or average variable cost as an absolute or per se rule for predatory pricing. Although we reject the use of marginal cost as a per se rule, we do not deny its relevance in determining the presence of predatory pricing. When a firm prices below its total cost, something is afoot; assuming the firm is acting somewhat rationally and is not simply suffering from gross mismanagement, there is a reason why the firm is losing money. The reason may be legitimate. The firm may be liquidating excess, perishable or obsolete merchandise. It may be minimizing its losses by selling at the best price-cost relationship available within a market beset by shrinking demand, or chronic excess capacity. It may be a fledgling firm not yet recouping high start-up costs, or it may be engaging in promotional pricing when launching a new product line. It may be simply struggling to maintain its market share by meeting competitors’ lower prices. It may even, under proper circumstances, be engaging in a temporary price war. See In Re IBM, 481 F.Supp. at 996 and authorities cited therein. A host of legitimate business reasons can exist to explain why a firm might choose to price, temporarily, below its total costs. But there are illegitimate reasons as well. The firm may be motivated by nothing more than a desire to starve out competition. The relation of a firm’s prices to its costs may be the same in either instance. What differs is the reason for that relation — whether the firm is pricing below cost in response to legitimate business concerns or as part of a long-run strategy to destroy competition. This is really the question of intent. Determining the relation of a firm’s prices to the various components of its costs is most helpful, not because it tells us absolutely whether predation has occurred, but because it tells us whether it is useful to go beyond the price-cost relationship to explore the underlying reasons for it, or, in other words, whether we should examine the pricing firm’s intent. In sum, we think the proper rule regarding predatory pricing is this: a firm that prices its product above average total cost is not engaged in predatory pricing; a firm that prices its product below marginal or average variable cost presumptively is. A firm that prices its product above marginal or average variable cost but below average total cost may or may not be engaged in predatory pricing, and proof that it is must come from independent evidence that such pricing is “unreasonable,” or intended to destroy competition. This independent evidence may be direct (plaintiff may discover, for example, a “smoking gun” memorandum, outlining a defendant’s plan of monopolization), or indirect, created by inference where a defendant’s below-cost prices cannot be justified by legitimate business concerns. But given the many innocent reasons for which below-cost pricing can occur, the necessary intent which permits us to characterize below-cost pricing as predatory cannot be inferred from the fact of below-cost pricing alone. In order to establish a prima facie case under Section 2 when a defendant’s below-cost prices are above its marginal or average variable cost, a plaintiff must come forth with some independent evidence of defendant’s specific intent to monopolize. Plaintiff has come forth with no such independent evidence, and for this reason its attempt to monopolize claim under Section 2 must fail. Plaintiff has no direct evidence that Hilltop intended to monopolize the Greater Cincinnati ready-mix concrete market. Plaintiff hopes instead to create an inference of Hilltop’s specific intent to monopolize through characterizing its prices as predatory. But Hilltop’s prices, being above its average variable costs, were not in themselves predatory, and the separate evidence plaintiff has produced concerning Hilltop’s intent falls far short of demonstrating or creating an inference of predation. Plaintiff’s separate evidence of Hilltop’s intent consists principally of its comparison between Hilltop’s and Richter’s price-cost structures, and its argument that it was unnecessary, given these structures, for Hilltop to price below its costs in order to meet the competition from Richter. Plaintiff’s expert testified that although both Hilltop and Richter priced below their respective average total costs during the relevant period, Richter’s average price of $19.95 per cubic yard was above Hilltop’s average total cost of $19.88 per cubic yard. Thus, according to plaintiff’s expert, it would not have been necessary for Hilltop to sustain the losses it did in order to meet the competition from Richter. Hilltop could still have met, the argument goes, Richter’s average selling price and turned a profit. Next, plaintiff points to the loan guarantee and loss-makeup provisions of the 1964 agreement to establish Hilltop’s superior financial staying power, which every predator must have in order to successfully starve out competition. Secure in the knowledge that whatever its real losses were, net losses would be only one-half that amount, Hilltop was able to price below the level it could have absent the 1964 agreement. The 1964 agreement thus served as a stimulus to and a cushion for engaging in predatory pricing. Plaintiff contends that Hilltop’s supposed lack of need for below-cost pricing, and financial ability beyond that of competitors to engage in below-cost pricing, plus the actual below-cost pricing constitute sufficient evidence to support an inference of Hilltop’s predatory intent. Plaintiff’s argument would have merit if Richter and Hilltop were the only competitors in the marketplace. Certainly, had that been the case it would not have been necessary for Hilltop to lose, as it did, an average of $1.08 per cubic yard of concrete sold just to meet the competition from Richter. If Richter had been Hilltop’s only competitor, Hilltop could have raised its prices substantially, beaten Richter’s average price, retained its market share, and perhaps even turned a profit. Plaintiff totally ignores, however, that some 25 firms competed for business during the relevant period, and that several of them, including Reading, Moraine, Tri-County and Plainville, were operations of substantial size, garnering significant market shares. Combined, these four firms accounted for approximately 62% of all ready-mix concrete sales by firms other than Hilltop during the relevant period. (See P. Exh. 1143.) Clearly, given the substantial role these other firms played in the market, Hilltop was not free to price in utter disregard of their prices, and its conduct cannot be judged without reference to their conduct. “A company should not be guilty of predatory pricing, regardless of its costs, when it reduces prices to meet lower prices already being charged by its competitors.” ILC Peripherals v. International Business Machines, 458 F.Supp. 423, 433 (N.D.Cal.1978). If Hilltop’s prices were in line with competition generally, and if competitors operated profitably at prevailing prices, then it is meaningless to say that Hilltop did not have to price so low to meet the competition from Richter. Hilltop cannot reasonably be required by the antitrust laws to raise its prices to non-competitive levels. Not even a monopolist is required to cut his own throat. See Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 657 (1st Cir. 1961). Hilltop’s prices cannot be considered unreasonable without considering how they affected and were affected by competitors’ prices. The influence these other firms had on competition generally and on Hilltop’s prices specifically, and the role they might have played in contributing to plaintiff’s demise, cannot be ignored. Plaintiff, however, has created an unreal picture of the marketplace by effectively excising from its proof all evidence concerning these other competitors. In this respect plaintiff has focused, not on Hilltop’s effect on competition, but on the supposed effect on a single competitor, a focus not countenanced by the antitrust laws. “Antitrust legislation is concerned primarily with the health of the competitive process, not with the individual competitor who must sink or swim in competitive enterprise.” Atlas Building Products v. Diamond Block & Gravel Co., 269 F.2d 950, 954 (10th Cir. 1959), cert, denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). By failing to introduce any evidence concerning competition generally, how other firms’ costs and prices compared with Hilltop’s, or how these other firms affected and were affected by Hilltop’s prices, plaintiff has deprived the trier of fact of an evidentiary basis for reasonably concluding that Hilltop engaged in predatory pricing intended to destroy competition. Hilltop and Richter did not do business in a vacuum; plaintiff cannot prove its case as though they did. What evidence exists concerning competition generally and the pricing behavior of other firms has come principally through defendants’ cross-examination of plaintiff’s witnesses (several of whom were officers of Hilltop). With this evidence, we can at least partially remove Hilltop and Richter from the “vacuum chamber” of plaintiff’s proof and view them side by side in competition with the other firms in the market. In so viewing them, the last vestige of credibility vanishes from plaintiff’s contention that Hilltop was unilaterally slashing prices and could have raised them to profitable levels without fear of losing business. Competitive price information is known regarding 55 specific jobs for which Hilltop bid competitively with other companies (see Appendix). Hilltop was low bidder on 14 of these jobs and was the successful bidder on only 10. Richter was low bidder on 21 of these jobs and was the successful bidder on 19. Other companies submitted low bids on 24 of these jobs and bid successfully on 26. Altogether, for the 41 jobs for which Hilltop was not low bidder, 55 companies submitted bids equal to or lower than Hilltop’s. The success other companies had in bidding against Hilltop belies plaintiff’s claim that Hilltop predatorily slashed prices without any legitimate business justification. The evidence concerning average price quotations among the major competing firms also contradicts plaintiff’s claim. It shows that Hilltop’s average price quotations were never consistently below those of the major competitors. Hilltop’s quarterly average price quotations were below Moraine’s in only three of the seven quarters comprising the relevant period, and below Reading’s in only four. The average price quotations were below Plainville’s in five of the seven quarters, and below Richter’s in six. Hilltop’s price quotations were the lowest among these five companies in only two of the seven quarters. This is evidence, not of predation, but of thriving competition. Finally, Hilltop’s officers uniformly testified that price-setting objectives were always to reap the highest possible returns while still remaining price-competitive. Costs were always considered, and the company never intentionally took a job knowing it would lose money. Although we can expect this testimony to be self-serving, it is not contradicted, and is strongly corroborated by the evidence of Hilltop’s direct costs incurred on the very jobs selected by plaintiff to demonstrate Hilltop’s predation (D. Exh. 581), and by Hilltop’s monthly sales reports (replete with suggestions for controlling costs), references to competitors’ frequently lower prices, and intimations of Hilltop’s averred policy of following rather than leading price trends. With competitors quoting prices generally very close to and frequently below Hilltop’s, the assumption that Hilltop could have avoided its losses by raising its average prices by $1.08 per cubic yard is wholly unreasonable. Basic economic theory holds that when a firm raises its prices relative to those of competitors, it loses business to competitors. The truth of this theory is demonstrated by the loss of business Hilltop suffered after initiating the llh% late payment charge (which it had to drop after only two months), the March 1, 1974 price increase (after which it lost over 20 major jobs in a row), and the Fall, 1974 full-load policy (which caused several customers to buy concrete from other suppliers). In each case, as Hilltop’s prices rose relative to competitors, its business volume suffered. And even though it was supposedly charging such low prices, its percentage market share declined considerably over the course of the relevant period, from approximately 40% to approximately 30% of the total. Under these circumstances, it is unreasonable to assume that Hilltop was pricing below cost in order to drive out competition, and that it could have raised prices above costs and retained the same volume of business. The only reasonable conclusion to be drawn from all the evidence is that Hilltop was legitimately responding to the pressures of a healthy and vigorously competitive industry. Beyond the discredited claim that Hilltop did not have to price as low to meet the competition from Richter, plaintiff has only the 1964 agreement and the resulting financial strength afforded Hilltop to support the allegation of predatory pricing. From Hilltop’s undeniably superior financial ability to withstand losses, an ability derived in part from the loss-makeup provision of the 1964 agreement, plaintiff seeks to draw the inference that Hilltop abused its financial strength in order to drive the competition out of business. The inference plaintiff seeks to draw, however, is in this case a patent non sequitur. Obviously, any firm will consider its financial resources when confronting a possible financial loss. If the firm does not have the strength to sustain the loss, it will not; if it has, it will at least have the choice of whether to do so. We can further assume that a firm will not engage in predatory pricing unless it believes it has the resources to outlast the competition. But the fact that a firm may be financially able to sustain a loss tells us nothing about why it might be forced, or may voluntarily choose, to do so. It does not reasonably follow, without some other evidence of predatory intent, that simply because Hilltop was better able to sustain business losses than Richter, that Hilltop purposely did so in order to drive Richter out of business. Moreover, there is no other evidence of predatory intent. In sum, in order to present a prima facie case of predatory pricing under Section 2, plaintiff must show either that Hilltop priced below cost with the intention of driving out the competition, or that it priced below cost without any legitimate business justifications for doing so. Plaintiff has no direct evidence of Hilltop’s intent, and all the evidence from which Hilltop’s intent may be inferred shows that Hilltop was legitimately pricing in response to the frequently lower prices of competitors. There is no evidence from which it could reasonably be inferred that Hilltop was engaged in predatory pricing, and for this reason, plaintiff’s Section 2 claim against Hilltop must fail. IV. Even if plaintiff had come forth with sufficient evidence to support a reasonable conclusion that Hilltop engaged in predatory pricing, the Court would have directed a verdict against plaintiff on its attempt-to-monopolize claim because it is clear that Hilltop’s conduct, no matter how characterized, created no “dangerous probability” that monopolization would occur. Section 2’s prohibition against attempts to monopolize against attempts to monopolize reaches acts which fall short of obtaining monopoly power and thus would be insufficient to support a charge of monopolization. American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946). It is not necessary for an attempt to have actually been successful in order to constitute a violation of Section 2. Lorain Journal Co. v. United States, 342 U.S. 143, 153, 72 S.Ct. 181, 186, 96 L.Ed. 162 (1951); Alles v. Senco Products, Inc., 329 F.2d 567, 571 (6th Cir. 1964). However, since Justice Holmes enumerated, in Swift & Co. v. United States, the three elements of the attempt offense — specific intent, overt acts and dangerous probability of monopolization — the vast majority of courts have required a plaintiff to prove that the defendant possesses sufficient market power to create a “dangerous probability” that monopolization would occur from the conduct in question. See, e.g., American Tobacco Co., supra, 328 U.S. at 785, 66 S.Ct. at 1127; California Computer Products v. International Business Machines, 613 F.2d 727, 736-37 (9th Cir. 1979); H. & B Equipment Co. v. International Harvester Co., 577 F.2d 239, 242 (5th Cir. 1978); FLM Collision Parts, Inc. v. Ford Motor Co., 543 F.2d 1019, 1030 (2nd Cir. 1976), cert, denied, 429 U.S. 1097, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977); Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1348 (3d Cir. 1975); E. J. Delaney Corp. v. Bonne Bell, Inc., 525 F.2d 296, 305 (10th Cir. 1975), cert, denied, 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976); Agra-shell, Inc. v. Hammons Products Co., 479 F.2d 269, 284 (8th Cir.), cert, denied, 414 U.S. 1022, 1032, 94 S.Ct. 445, 461, 38 L.Ed.2d 313, 323 (1973); Mowery v. Standard Oil of Ohio, 463 F.Supp. 762, 772 (N.D.Ohio 1976). We follow these decisions in holding a dangerous probability of success is an essential element of plaintiffs burden of proof. In considering whether such dangerous probability exists, it is necessary to define the relevant product and geographic market, for only in terms of such markets can a defendant’s exclusionary power or ability to lessen or destroy competition be appraised. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 350, 15 L.Ed.2d 247 (1965). Although defendants intended to dispute plaintiff’s definition of the relevant market, there is sufficient evidence to conclude that the relevant markets are what plaintiff claims, i.e., the market for ready-mix concrete in the seven-county area comprising Greater Cincinnati. The sole question, then, is whether Hilltop had sufficient power within these markets that its conduct created a dangerous probability of monopolization. The inescapable conclusion is that it did not. . The principal indicia of monopoly is the holding of monopoly power. Monopoly power is the “power to control prices or exclude competition.” United States v. E. I. DuPont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). Hilltop lacked the power to do either. The evidence concerning Hilltop’s pricing conduct and the influence other competitors had in the marketplace has been set forth at length above in Section III and below in the Appendix to this Opinion. That evidence shows that Hilltop followed the downward price trend and that Hilltop’s unilateral attempts to raise prices uniformly provoked shifts in business to competitors. Clearly, prevailing market prices involved factors beyond Hilltop’s control. Hilltop’s power to exclude competition was no greater than its power to control prices. The number of competitors in the market was fairly high, and barriers to entry were relatively low. Just over $370,-000 was required to purchase substantially all the assets other than the mix