Full opinion text
FORMAN, Circuit Judge. A. G. Spalding & Bros., Inc. (Spalding) seeks to review and set aside an order of the Federal Trade Commission (Commission) directing it to divest itself of all the capital stock and assets of Raw-lings Manufacturing Company (Raw-lings) which it acquired in 1955. The order was based upon the Commission’s opinion concluding that the acquisition of Rawlings by Spalding violated § 7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U.S.C.A. § 18, which provides in pertinent part as follows: “No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Pleadings and Prior Proceedings The complaint, filed December 8, 1955, before the Federal Trade Commission, charged, among other things, the following allegations: that Spalding is a corporation of Delaware and Rawlings of Missouri; that on or about December 6, 1955, Spalding acquired all of the outstanding capital stock of Rawlings; that Spalding is engaged in the manufacture of athletic goods and the sale and distribution thereof in interstate commerce to “other manufacturers and distributors, sporting goods stores, department stores, mail order houses, golf professionals and others on a national basis”; that it is one of the four largest manufacturers and distributors of athletic goods in the United States, its sales for 1954 amounting to $23,350,000. It further charged that Rawlings, prior to and at the time of the acquisition, was likewise engaged in the manufacture of athletic goods and the sale and distribution thereof in interstate commerce to “other manufacturers and distributors, sporting goods stores, department stores, mail order houses and others throughout the nation” and that its line is in direct competition with the line distributed and sold by Spalding and that Rawlings is also one of the four largest manufacturers and distributors of athletic goods in the United States, the sales of which during 1954 amounted to $10,500,000. • The complaint also alleged that by the acquisition of the capital stock of Rawlings, Spalding has eliminated one of the four largest competitors in the manufacturing and distribution of its athletic goods line and has acquired Rawlings’s manufacturing facilities to make certain athletic goods which Spalding had theretofore been compelled to purchase from Rawlings or some other manufacturer and that the acquisition “may have the effect of substantially lessening competition or tending to create a monopoly” in the manufacture, sale and distribution of athletic goods in violation of Section 7 of the Clayton Act. In its answer Spalding admitted that it acquired all of the outstanding capital stock of Rawlings on December 8, 1955. It stated that prior to and at the time of the acquisition it manufactured certain athletic goods which it sold largely through its Spalding Sales Corporation which distributed such items nationally together with complementary items manufactured by others and that the total of its sales and those of Spalding Sales Corporation during 1954 amounted to $18,783,639. Spalding further stated in its answer that Rawlings was likewise engaged in the manufacture of certain athletic goods which it sold largely to its Rawlings Sporting Goods Company which distributed such items nationally together with complementary items manufactured by others with its total sales and those of Rawlings Sporting Goods Company amounting to $8,282,505 for the year 1954. Spalding generally denied other allegations contained in the complaints as well as the charge that, by its acquisition of the stock of Rawlings, it violated Section 7 of the Clayton Act. Jurisdiction of this court is properly invoked pursuant to, and venue is based upon, Section 11 of the Clayton Act, 15 U.S.C.A. § 21, as amended. Integration of Rawlings’s facilities with Spalding’s during the pendency of the proceedings has been controlled by a stipulation executed by counsel supporting the complaint before the Commission and counsel for Spalding, whereby Spalding agreed, in substance, to maintain the pre-merger status of Rawlings and to make no changes therein without advance notice to the Commission. Hearings commenced on April 30, 1956 before a Hearing Examiner and continued intermittently through December 16, 1958. The refusal of two witnesses to produce documents called for by subpoenas duces tecum resulted in the institution of enforcement proceedings terminating favorably to the Commission. Spalding rested without offering evidence and moved for dismissal of the complaint. Before the Hearing Examiner counsel for the Commission selected 19 products manufactured and sold by both Spalding and Rawlings (including those that are sold by both but not manufactured by both), as “illustrative of the area in which the acquisition of Rawlings will have a substantial economic impact.” They were: Golf clubs (irons) Volley balls Golf clubs (woods) Footballs Golf balls Football helmets Baseballs Football shoulder pads Softballs Football hip and kidney pads Baseball gloves Basketballs Basemen’s mitts Tennis balls Catcher’s mitts Tennis racket frames Soccer balls Strung tennis rackets Badminton rackets (fr¡ ime and strung rackets) Spalding made no substantial objection to the consideration of the list as selected. The Hearing Examiner’s findings with respect to the competitive effect of the merger were based primarily on an analysis of the following product lines: baseballs, footballs, softballs, volley balls, soccer balls and baseball gloves and mitts. The Commission likewise confined its consideration to the same product lines. The Hearing Examiner filed his Initial Decision February 27, 1959, dismissing the complaint on the ground that the evidence failed to establish that the effect of the acquisition of Rawlings by Spalding may be substantially to lessen competition or tend to create a monopoly, in violation of Section 7 of the Clayton Act. An appeal to the Commission followed. The Commission in effect reversed the Initial Decision by its order and opinion of March 30,1960. It ordered divestiture and submission of a plan for compliance by Spalding within 60 days. The General Line Athletic Goods Companies At the time of the acquisition there were four so-called general line companies in the athletic goods industry. A general line company was considered one which sells a variety of products either directly or through subsidiaries. A single line company markets one or possibly a few product lines. In addition to Spalding and Rawlings there were two other general line companies, Wilson Athletic Goods Manufacturing Company, Inc. (Wilson) and MacGregor Sporting Products Inc. (MacGregor). The total number of firms engaged in the production of athletic goods is approximately 200. Prior to the acquisition the four general line companies (Wilson, Spalding, MacGregor and Rawlings, in that order) were the principal producers of athletic products in the United States. There were a few companies such as Kennedy Sporting Goods Manufacturing Company, Hutchinson Brothers Leather Co., Dubow Manufacturing Co., Inc., George K. Reach Company and Stall and Dean Manufacturing Company which produced and sold a partial line, but the great majority of the companies are single line companies. Spalding had its beginning in 1876 when two brothers, Albert G. Spalding and J. Walter Spalding, formed a partnership for the sale of baseball equipment at wholesale and retail. Later a brother in law, William T. Brown, was admitted to the partnership. In 1885 the partnership was incorporated in Illinois under the name of A. G. Spalding & Bros. In 1892 A. G. Spalding & Bros, was incorporated in New Jersey. All of the capital stock of the following corporations was transferred to the New Jersey corporation: 1. A. G. Spalding & Bros., the Illinois corporation; 2. Wright & Ditson, a New Jersey corporation engaged in the manufacture of athletic goods, with emphasis on tennis rackets; 3. A. J. Reach Company, originally a partnership incorporated in about 1885, engaged principally in the manufacture of baseballs and baseball mitts and gloves; 4. George Bernard & Company, a New Jersey corporation engaged in the manufacture of uniforms and knit goods; 5. Spalding Manufacturing Company, an Illinois corporation formed to operate the A. G. Spalding & Bros, baseball-bat factory; and 6. Peck & Snyder, a retail store in New York City dealing in sporting equipment. It continued its corporate existence without material change until the depression period of the 1930s. In 1934 another reorganization occurred as a solution to the problem of reduced sales of athletic goods which on a national level had dropped about 60%. In 1939 Spalding was reorganized as a Delaware corporation under its present name of A. G. Spalding & Bros., Inc., with all the assets of the former New Jersey corporation. In December 1955, at the time of the acquisition, Spalding was engaged in the manufacture and sale of a general line of athletic goods. Its full line consists of more than 1100 different articles, including golf, baseball, football, basketball, volley ball, soccer, tennis, badminton and boxing equipment, athletic clothing and related products. Its main factory and executive offices are in Chicopee, Massachusetts. Through its wholly-owned subsidiary, Spalding Sales Corporation, it distributes its products through wholesale distributing depots and sales offices located in principal cities throughout the United States. At the time of the acquisition its assets amounted to $16,-665,299 and its sales of finished products in 1955 amounted to $23,200,737. Rawlings was originally founded in 1898 in St. Louis, Missouri, by George H. Rawlings and Charles W. Scudder for the purpose of manufacturing and selling athletic equipment and sporting goods, primarily clothing, at wholesale and retail. At the time of its acquisition by Spalding in 1955 it was a Missouri corporation engaged in the manufacture and sale of a general line of athletic goods, with its main office and principal place of business located at St. Louis, Missouri, Rawlings had three plants in Missouri, one in St. Louis, one in New-burg and one in Licking. It also had a wholly-owned subsidiary, Rawlings Sporting Goods Company, and sales offices and wholesale distribution depots in St. Louis, Chicago, and Los Angeles. Rawlings was in sound financial condition in December 1955. Total corporate assets had increased by 22% from 1953 to 1955, to approximately $6,500,000. Net sales for 1955 were $11,209,825. Net worth had increased 25% in the same period to approximately $4,288,000. Net earnings rose from $222,524 in 1953 to $551,824 in 1955. Earnings invested in the business exceeded one million dollars in the three year period and dividends were paid on both preferred and common stock. Twenty percent of the former and 90 percent of the latter was owned by six shareholders. Rawlings distributed its products nationally for many years prior to the acquisition by Spalding. Spalding acquired Rawlings’s capital stock for approximately $5,698,000. Rawlings Manufacturing Company was dissolved immediately thereafter. Spalding continued its business as the Raw-lings Division of Spalding using the name Rawlings Manufacturing Company. Among the assets taken over by Spalding was the stock of Rawlings Sporting Goods Company, the wholly-owned subsidiary of Rawlings, which was the sales company for merchandise bearing the Raw-lings trademark. It remains in existence competing with Spalding Sales Corporation for the same customers Another of the general line companies, Wilson, was organized in 1910 as the Ashland Manufacturing Company, a subsidiary of Wilson and Company, the Chicago meat packing firm. It underwent a number of name changes, emerging in 1941 in its present form and with a wholly-owned sales subsidiary, Wilson Sporting Goods Company. In the course of some four decades Wilson acquired at least seven smaller firms and in 1955 operated 13 manufacturing plants in various parts of the country. Wilson sells a general line of athletic goods, either manufactured by it or purchased from other manufacturers for resale through its 29 branches in 28 states and has been recognized for a number of years as the leading producer of athletic goods in the industry. MacGregor, the other leading general line competitor of Spalding and Rawlings at the time of the 1955 acquisition, was founded in 1875 as a partnership, incorporated in 1922. In 1958, 98% of MacGregor's outstanding stock was acquired by Brunswick-Balke-Collender Company. Between 1875 and 1958 MacGregor acquired at least five other small producers and in 1955 it was recognized as the third-largest in the industry in point of sales. The Athletic Goods Manufacturing Association Prior to 1925 manufacturers of athletic goods organized a trade association known as the Athletic Goods Manufacturing Association (AGMA). Its purposes are listed in Article II of its constitution and by-laws to be: “ * * * the protection and advancement of the athletic goods industry, the promotion and encouragement of athletic activities, the exchange of credit information, the development of adequate cost systems, the standardization of trade description and the simplification of lines, the development, promotion and enforcement of a code of trade practices.” At the time of the acquisition about 25 firms were members including the principal companies engaged in the industry. From 1949 to 1954 AGMA engaged in gathering and publishing statistics of the industry’s production. At first this was to aid industry members in obtaining raw material allocations in times of national emergency. After such commodities became plentiful the information was deemed valuable to the members of the industry and therefore the practice was continued. Beginning in 1949 questionnaires were prepared and sent to all known manufacturers of athletic products requesting that they report their annual sales of some 43 specified items on both a quantity and dollar basis. The inquiry requested production figures broken down into specific price categories. For example, the 1955 questionnaire called for information on production of baseballs on the basis of prices charged to dealers in the following classifications: “Over $16.00 per dozen $9.01 to $16.00 per dozen Up to $9.00 per dozen Molded or Rubber Covered Baseballs.” Information according to price categories for other products such as softballs, footballs, and boxing gloves was similarly solicited. A compilation of the individual reports showing total annual production of each item was prepared by an accounting firm and was known as “AGMA’s Census Reports” or “Census Surveys.” In 1954, 74 of 184 firms to whom the questionnaire was sent responded. In 1955, 75 out of 197 firms participated. During the years 1953-1958, one or. more of the four companies, Spalding, Rawlings, Wilson and MacGregor were represented in the officer complement of AGMA. The Issues Spalding raises two issues by this review: (1) Whether there is substantial evidence to support the Commission’s findings that the relevant lines of commerce are (a) the athletic goods industry and (b) higher- and low-priced categories within particular product lines; and (2) Whether there is substantial evidence to support the Commission’s findings that the acquisition of Rawlings by Spalding may substantially lessen competition or tend to create a monopoly. Price Categories as Relevant Lines of Commerce At the outset, we are confronted with the task of considering whether the Commission properly determined the relevant lines of commerce in this case. It was argued before the Commission that the AGMA Census Report price categories were designed by the manufacturers themselves, through the AGMA Census Report Committee, to define differing physical characteristics, markets, prices and end uses for all of the products for which categories were established. To support the position that the products in each of the price categories are sufficiently different and distinct from those in any other price category within the same product line to constitute each group of products so classified a separate line of commerce for this proceeding, counsel supporting the complaint called as witnesses, George J. Herrmann, Executive Secretary of AGMA, Fred J. Bowman, President of Wilson and Philip H. Goldsmith, Chairman of the Board of MacGregor. Messrs. Bowman and Goldsmith had been officers of AGMA and members of its Census Report Committee. ’ Mr. Herrmann testified that the price categories into which the inquiries in AGMA’s questionnaire were divided were designed “to particularly find out the market for various types of the equipment, the volume that would be in various price classifications.” In response to the following questions, by counsel supporting the complaint, he further testified: “Q. Was that also designed to separate any particular classes or products as to quality? “A. Well, the price would govern whether it was the better quality or whether it might have been in the toy classification, or whether it would be high quality equipment. “Q. Do you mean by that that the toy classification would be the lower priced equipment? “A. That’s right.” Mr. Bowman testified in reply to a question on direct examination in which he was asked “about the significance of the price categories, * * * shown in the AGMA Survey”, that the price schedule was used instead of specifications to designate the quality of raw materials that went into the product as well as the workmanship. He was then asked, “So that as I understand your answer the price categories are related to the quality of the product sold?” He answered “That is right.” Mr. Bowman further testified as to Wilson’s American Player line: “That is what we call the low end. That is not the quality that went in there. That is, they were cheaper materials and less labor would go into that type of merchandise than would go in your better grades.” He also characterized the American Player line: “ * * * as the juvenile line of equipment sold for Christmas selling, including lower priced footballs, basketballs, shoulder pads, basketball goals, bat and ball sets, youth boxing gloves and striking bags, equipment of that type sold mostly to the toy departments.” In response to further questions Mr. Bowman replied: “Q. Mr. Bowman, with respect to the items set forth in the American Player catalog, Commission’s Exhibit 50-A, do I understand you correctly to say these items represent something in the nature of toys ? “A. Well, it is not exactly a toy. It goes to the younger children who are not old enough, you may say, to participate in the games and use regular equipment. It is more or less a juvenile line. “Q. It is a juvenile line and would not be used in professional leagues and by colleges and universities? “A. That’s right.” Mr. Goldsmith gave the following testimony on the subject of price categories: “Q. Now, Mr. Goldsmith, I call your attention to price category shown on the A. G. M. A. census reports and ask you to state the significance of the price categories on certain product classifications. “A. The industry as a whole felt that it was necessary to break it down for quality’s sake and you cannot take every item that is made in the athletic goods industry and examine it to find out what category it goes in so that the best thing you can do is by price route. Probably the best illustration I can give .would be that of baseballs. “Q. That is shown on page 4 of CX-70. “A. For example, we have baseballs broken down into three price categories. Baseballs up to $9.00 a dozen is Category 1. $9.00 a dozen was just picked out at random because it was a known fact that it would be necessary, that any ball sold for under $9.00 a dozen couldn’t be a yarn-wound ball. Nobody in this country could make one for less than $9.00 and have it to be a serviceable ball. So when we look at that figure there we know that there were in that particular year over 5,000 dozen baseballs sold that were not of a yarn-wound construction, that were of an inferior nature that would not be used in league games or in regular competition games. “Then the next category was from $9.01 to $16.80. That took in all the playable balls that the kids would use, the amateurs, the small leagues, and so forth, up to that price bracket, and we did know from experience that no one could turn out the top ball for less than $16.80 so therefore $16.80 in that particular year anything that was sold, some manufacturers might sell their top ball at $16.80, others at $18.00, others at $19.00, others at $20.00. Anything above that we knew was the official top ball. So that gave the manufacturers then three categories through the route of the price but indicates the quality.” Spalding attacks the qualifications of Mr. Herrmann to testify as to the classifications of the products on the ground that his services to AGMA were clerical and administrative. His testimony that certain items covered by the reports were “toys” was said to be entitled to little or no weight and that whatever weight might be given to it was destroyed by his denial that he knew which AGMA price categories were meant to embrace toys. Further Spalding alleges that Mr. Herrmann’s testimony as to the aspect of toys was uncorroborated and that in any event Mr. Herrmann merely meant by his reference to “toys” items not of official size and weight. Mr. Herrmann was Treasurer of AG MA from 1949 until he became Executive Secretary in 1953 and his duties, among other things, consisted of handling the statistical data which it was the object of AGMA to collect and distribute. In this regard, it is true, Mr. Herrmann acted in an administrative capacity but his testimony concerning the mechanics of AGMA’s operations was quite within his qualifications. He testified that AG MA categories defined certain products as toys, but he was not able to designate at what point the classification operated in this manner. Mr. Herrmann’s idea of the word “toys” may not have been precisely descriptive of the lower priced category of athletic goods. It is to be noted that Mr. Bowman testified in describing Wilson’s “American Player line”, a less expensive line of products produced and sold by Wilson, as being items that were “sold mostly to the toy departments.” On the whole Mr. Herrmann’s statements were consistent with the general intent of the AGMA classifications as expressed by Messrs. Goldsmith and Bowman. Taken together the testimony of the three witnesses formed a substantial foundation for the findings of the Commission that: “We think it clear from this testimony that in each of the various product lines for which AGMA price categories were established there is a separate line of low priced items which is not sold in competition with other items in the same product line. These low priced items may properly be classified as toys or as products not suitable for use in organized competitive games. Other items within the same product line are of higher quality, more durable and are designed for use in regular competition by both professional and amateur teams and players. The products in each of these categories are physically distinct from those in the other; they are different in quality and price, as well as in the purpose for which they are made and used. There can be no doubt that these two categories within the various product lines can be distinguished competitively from each other and that they constitute separate and distinct lines of commerce within the meaning of Section 7. “Using baseballs as an example, the uncontradicted testimony of the witness Goldsmith establishes that there are sufficient differences between baseballs selling, for under $9.00 a dozen and those selling for more than $9.00 a dozen to constitute them separate lines of commerce. One is yarn-wound; the other is not. One is suitable for use in organized competitive play; the other is not. They are of different quality, are sold at different prices, and have different end-uses and different markets. The market for the higher priced baseballs consists of major and minor league teams, semiprofessional and amateur teams, colleges and high schools, and all others who use baseballs in organized games. The low priced baseballs are not suitable for use by customers who make up this market and for that reason cannot be considered to be competitive with the higher priced baseballs. “Counsel supporting the complaint contends that there are three separate lines of commerce within the baseball product line. The first or low priced line, includes baseballs selling for under $9.00 a dozen. The second, or medium priced line, includes baseballs in the $9.01 to $16.80 category. This line consists of baseballs used primarily by juveniles in organized competition. The third, or high priced line, includes baseballs selling for more than $16.80 a dozen. This line is used primarily by professional leagues, colleges, and others who require a top quality baseball. “He has also proposed similar lines for other products, such as footballs, basketballs and boxing gloves. While we agree that the record supports his contention that thex-e are separate and distinct markets for low, medium and high priced items within each of several product lines, we are of the opinion that for the purposes of this proceeding it will be necessary to consider only the lower priced and higher priced lines as indicated above.” Spalding further takes exception to the reference by the Commission to “toys” in its definition of a line of commerce in “low priced items”. The Commission used the term in its opinion saying: “These low priced items may be properly classified as toys or as products not suitable for use in organized competitive games.” The characterization of “toys” is in the disjunctive along with “products not suitable for use in organized competitive games.” Whether or not the lower priced items are actually “toys” is of little importance. The conclusion of the Commission as to the separate categories of higher-priced and lower-priced athletic goods was well within its province under the evidence before it. In its recognition of price categories as relevant lines of commerce the Commission differed with the Initial Examiner. It held that he “failed to recognize that there are separate and distinct markets for different lines of products within each of these product lines.” It also found that the Examiner “ * * * compounded this error by emphasizing the number of items produced rather than the value of such items in comparing the competive positions of Spalding and Rawlings with other manufacturers in the industry. As a result, his comparisons, in many instances do not reflect the true competitive relationship existing among these companies.” The Hearing Examiner devised the following table showing the market shares of all manufacturers who participated in the 1954-1955 AGMA Census Survey based on the data relating to the number of baseballs produced: 1954 1955 Lannom 18.8% 19.2% Spalding 16.5%' 15.3% de Beer 16.2% 17.9% Wilson 16.1%' 17.5% MacGregor 10.9% 10.2%' Rawlings 10.5% 9.4% Tober 3.9% 4.8% Hofran 3.8% 3.1% Sealand 1.7% 1.4% Harwood 1.5% 1.2%' Kennedy Less than 1% Less than 1% From this he concluded that in 1955 Spalding with its 15.3% was surpassed in production of the number of baseballs by Lannom with 19.2%, de Beer with 17.9% and Wilson with 17.5%. He further found that the combined production quantitatively of Spalding and Rawlings would be but 24.7% against the next largest producer, Lannom with 19.2%. The Commission regarded this quantitative analysis as inadequate since, as it stated, it ignored completely the value of the baseballs produced by the same companies which reported to AGMA. It formulated the following table of market shares based on the value of all baseballs produced: 19 5A 1955 Wilson 21.3% 22.9%- Spalding 22.7%-21.8% MacGregor 14.0% 13.8% de Beer 10.6%' 11.6% Rawlings 13.0% 11.3% Lannom 10.4%' 10.7% Tober 2.1% 2.6% Hofran 2.6% 2.2% Harwood 1.8% 1.6% Sealand 1.4% 1.4 %■ Kennedy .1%' On this value basis in 1955 Spalding’s share of the market was 21.8% surpassed only by Wilson with 22.9%, while de Beer and Lannom (leaders on a quantitative basis) produced 11.6% and 10.7% respectively. The combined share of Spalding and Rawlings gave it first position of 33.1%. The contrast between market shares on a quantitative basis and those on a value basis was influenced by the fact that a large portion of the baseballs produced by Lannom and de Beer were in the low-priced category while those produced by Spalding and Rawlings were overwhelmingly in the higher-priced category. The following table, derived by counsel for the Commission from AGMA reports for 1955, reveals, by quantity and value, the production of higher priced and low priced baseballs by the reporting manufacturers. Higher-Priced Baseballs Over $16.00 $9.01 to $16.00 Quantity Quantity (dozens) Value (dozens) Value Spalding 47,376 945,602 42,552 565,915 Wilson 38,761 751,513 58,230 780,812 MacGregor 25,707 529,558 29,224 388,322 Rawlings 17,148 313,993 39,865 479,969 de Beer 6,963 112,801 24,890 289,879 Lannom 5,733 97,632 18,888 211,755 Harwood 2,850 53,400 4,870 57,760 Sealand 344 6,142 7,468 85,625 Tober 202 2,272 2,569 30,768 Kennedy 67 1,133 45 641 Hofran Totals 145,151 $2,814,046 228,601 $2,891,446 Low-Priced Baseballs Molded or rubber Up to $9.00 covered baseballs Quantity Quantity (dozens) Value (dozens) Value Spalding 12,121 $ 88,059 3,344 $ 21,682 Wilson 23,424 166,075 MacGregor 13,023 94,083 2,414 14,765 Rawlings 7,641 47,066 de Beer 67,075 410,824 24,735 54,136 Lannom 101,883 470,818 5,920 12,011 Harwood 800 5,540 Sealand 1,851 14,485 Tober 30,279 158,116 Kennedy Hofran 21,087 162,754 Totals 258,097 $1,455,066 57,500 ' $265,348 The foregoing figures disclosed that in 1955 out of a total of higher-priced baseballs (over $9.01 per dozen) of 373,752 dozens and $5,705,492 in value, the four general line companies, Spalding, Wilson, MacGregor and Rawlings produced in the aggregate 298,863 dozens and $4,-755,784 in value. Out of 315,597 dozens and $1,720,914 in value of the low-priced baseballs (up to $9.00 per dozen and molded or rubber-covered baseballs) Spalding, Wilson, MacGregor and Rawlings, together, produced 61,967 dozens and $430,730 in value, while the other companies produced 253,630 dozens and $1,289,684 in value, including Lannom and de Beer who together produced 199,-611 dozens of $947,789 in value. It is apparent then that Spalding and Rawlings were substantial competitive factors in the higher priced baseball area but that their respective production figures in the low priced area were significantly smaller. On the other hand, in the low priced baseball areas de Beer and Lannom were the production leaders. The two price categories represent areas which were separately dominated by different production leaders, the higher-priced — by Wilson, Spalding, MacGregor and Rawlings, and the low priced — by de Beer and Lannom. The record contains similar statistical data for other product lines, viz., basketballs, footballs, and softballs. Hence the Commission correctly concluded: “One of the most significant points in the entire record is that Spalding and Rawlings were engaged primarily in the production and sale of athletic goods in the higher priced, higher quality line. It is, therefore, within this higher quality line of the various product lines that an appraisal of the competitive effect of the merger should properly be made. The manufacture and sale of the low priced line of athletic products involves an entirely different market and may be completely disregarded in making this appraisal.” Spalding challenges the Commission’s holding that price categories are relevant lines of commerce, contending that the only relevant lines are individual product lines, viz., baseballs, softballs, etc., and that these may not be “fragmented into a myriad of separate lines based on price categories of the AGMA reports.” Urging that AGMA price categories are not relevant lines of commerce because they do not meet the tests defining areas of effective competition and that their use would destroy the line of commerce concept as an analytical device for probing the competitive effects of the Rawlings acquisition, Spalding submits that the Hearing Examiner was correct, and the Commission wrong, in reversing the finding that only undivided product lines can be considered areas of competition and therefore relevant lines of commerce. Spalding contends that the AGMA price categories have no meaning in the terms construed by the Commission as a “market” for “low priced items” consisting of “toys” and products not suitable for use in organized competitive games and a “market” for higher priced items which are designed for use in regular competition by both professional and amateur teams and players. It argues that “ ‘low priced items’ throughout the various product lines that are clearly ‘designed for use in regular competition’ while conversely there are higher priced items which are ‘not suitable for use in organized competitive games.’ ” It calls up three instances of such nature: (1) Baseball gloves for use in regular Little League competition at $36.00 per dozen, within the lowest AGMA category for baseball gloves; (2) “Junior Size” leather footballs at $70.20 per dozen, within AGMA’s higher priced category (“leather and rubber-covered selling for more than $45.00 per dozen”) which are not playable, and (3) “Smaller than regulation” rubber-covered basketballs at $50.40 per dozen, within AGMA’s higher priced category (more than $48.00 per dozen) likewise not playable. However, it should be observed that the citation of a few examples of variations from the general pattern hardly constitutes a persuasive argument that the Commission erred in interpreting AGMA price classifications as defining the higher priced categories as lines of commerce. A review of the entire record reveals that there was substantial evidence to support the Commission’s finding that higher priced and low priced categories “can be distinguished competitively from each other and that they constitute separate and distinct lines of commerce.” In general, the former is suitable for use in organized competitive play; the latter is not. As the Commission noted, “[t]hey are of different quality, are sold at different prices, and have different end-uses and different markets.” Further, Spalding submits that the bulk of all items sold by Spalding and Rawlings regardless of price, is distributed through the same channels— sporting goods dealers (except for some golf equipment that Spalding sells through golf professionals) — and is available to the same ultimate customers. Thus, Spalding argues, that a product line such as baseballs is available to buyers “in a continuum of gradually ascending prices and qualities which cannot be broken at any point without grossly distorting the competitive relationships between baseballs above and basketballs below the breaking point.” Spalding claims that the close competitive relationship between items of differing prices is seen from the offering of them side by side in the same store to the same prospective buyers and that the promotion of a particular item is always designed to further the general sales effort of all items within the product line. However, more than mere price is involved in the AGMA categories. The record reveals that they represent meaningful quality differences between items in the same product line. They are adjusted from time to time to preserve their integrity. Regardless of the nature of the pricing and promotional techniques in which Spalding engaged in a given product line, items therein nevertheless still fell into areas of use denoted by AGMA price categories. Those in the higher priced classification were designed for organized competitive games and were not in the same line of commerce as the low priced items. Spalding also argues that each product line is a competitive unity which has no meaning in terms of any one of its fragments. It asserts that price categories themselves are subject to change and that the Commission ignored the generally accepted economic concept that a manufacturer “is inhibited from raising the price of a higher priced item * * * because a price rise will cause many buyers of that article to shift to a lower priced item * * It contends that price change decisions have “repercussions across the various AGMA price categories for a given product line”, that by 1955 yarn wound baseballs of regulation size and weight were produced to ■sell for under $9.00 per dozen and that a top grade baseball could be offered for $16.00 per dozen as compared to $16.80 in 1950 and $16.75 in 1951. Spalding also asserts that it is inevitable when technological improvements and other factors result in changes in product costs, the reflection of those changes are not limited to any one AGMA price category and that all of these considerations prohibit the fragmentation of the relevant market on the basis of mere price distinctions. It submits, as an example, that the ability to produce higher quality baseballs (i. e., yarn wound) at a lower cost permits those baseballs to be sold at prices formerly applicable only to lower quality baseballs and that the price reduction requires that lower quality baseballs be reduced in price or raised in quality if they are to remain competitive, creating a phenomenom, known as “price sensitivity and cross elasticity of demand” a characteristic which prohibits fragmentation of the relevant market on the basis of mere price distinctions. Spalding’s illustrations of advances made by 1955 in “yarn-wound baseballs of regulation size and weight for under $9 a dozen” are: (1) Rawlings’ “MM1” which it states to be “of ‘full regulation size’ and with ‘yarn wound core’ for $8 per dozen,” and (2) Spalding’s “ ‘Official’, ‘yarn wound’ baseballs (Nos. 175 and 176) for up to $9 * * * ” a dozen. The catalogue shows Rawlings’ MM1 baseball to be “A durable ball, full regulation size * * * gum yarn wound core of resilient materials.” The significance of gum wound is unexplained. The only other gum wound Rawlings’ baseball is catalogued as R8 “a semi-hard juvenile ball” selling at $2.85 a dozen. Spalding’s No. 176 is catalogued as “yarn wound” at $9.00 per dozen and its No. 175 is similarly “yarn wound” at $7.20 per dozen. But it is noteworthy that both of these balls are rubber- covered. All of these balls are apparently distinguishable from those in the category found by the Commission to be used for organized competitive play. At all times the basic question must be kept in sight, i. e., the correctness of the determination by the Commission that the AGMA price categories define relevant lines of commerce within the product lines. Spalding’s arguments give emphasis to a few marginal instances in which price classifications are so close that there may be some interchangeability and price sensitivity between items for use in organized competitive games and those that are not. Neither the price change decisions, as cited by Spalding, whether due to technological improvements or otherwise nor the occasional closeness of prices between items in the product lines are shown in such measure as to dilute the substantiality of the evidence before the Commission upon which it based its determination. The reasonableness of its conclusion, derived therefrom that the price categories effectively differentiate playable and non-playable items, must be held to withstand Spalding’s attack in this respect. Spalding also contends that since marketing data, such as trademarks, trade names, patents and endorsements by athletes, appear on products in all price ranges, they have no understandable meaning with regard to any one AGMA price category but must be viewed in the context of each product line as a whole. This argument also fails to derogate from the effect of the AGMA higher price categories in denoting products used in organized competitive games as defining a line of commerce. In challenging the Commission’s finding that price categories are relevant lines of commerce, Spalding cites four cases: American Crystal Sugar Co. v. Cuban-American Sugar Co., 259 F.2d 524 (2 Cir. 1958); United States v. E. I. DuPont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957) (duPont-General Motors); United States v. Brown Shoe Co., 179 F.Supp. 721 (E.D.Mo.1959); United States v. Columbia Pictures Corp., 189 F.Supp. 153 (S.D.N.Y.1960). Spalding cites the Sugar case as a rejection of “the contention that price differentials required a finding of separate lines of commerce.” There the court held that beet sugar and cane sugar were a single line of commerce although cane sold at 20 cents more per cwt. than beet and although certain users preferred cane. That case, however, is clearly distinguishable from the one at hand, for there the court found that the price difference between beet and cane was for the most part historical rather than reflective of the actual differences in characteristics and it relied on the overriding consideration that there was “substantially complete functional interchangeability” between beet and cane sugar. That cannot be said of higher-priced baseballs suitable for use in organized competitive play and lower-priced ones unacceptable for such use. Spalding cites the duPont-General Motors case as demonstrating “the proper handling of price differences in determining relevant lines of commerce,” in that it “refused to proliferate automotive fabrics and finishes into a multitude of lines of commerce based upon quality and price distinctions in various types of such fabrics and finishes * * * ” However, in that case the Supreme Court found that the market for automotive finishes and fabrics rather than the market for finishes and fabrics generally was the relevant line of commerce. It based its conclusion on the finding that, automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products distinct from all other finishes and fabrics and therefore a separate line of commerce within the meaning of Section 7 of the Act. The factor of price was irrelevant in the determination. The Commission’s finding in this case that higher priced products within product lines are market areas distinct from low priced items in the same product line is not in conflict with the duPont-General Motors decision. Higher priced athletic products differ from the lower in that they are distinct, physically, in quality, in price and in purpose for which they are made and sold. Higher priced baseballs are not interchangeable with those in the low .priced category; each has its own peculiar characteristics and uses. Spalding cited Brown Shoe as repudiating “the argument for price category lines of commerce here advanced by the Commission.” In that case, the court held that men’s shoes, women’s shoes, and children’s shoes constituted lines of commerce, and rejected the argument that “differences in grades, qualities, prices and uses of shoes should be considered in determining the relevant ‘line of commerce’.” It found a significant “degree of interchangeability” in the shoe industry. For example, the court found interchangeability in the shoe manufacturing process, in price, style and quality of shoes, in the use to which shoes are put by customers and finally that “the shoe people themselves admit that their trade classifications * * * and * * characterizations * * * to differentiate * * * to catch the buying eye, do not determine the use to which the shoe is put or by whom it [is], put.” In the athletic goods industry, however, the Commission found no such interchangeability between low priced and higher priced categories. It found that the AGMA price delineations mark divisions between non-interchangeable products constituting distinct areas of effective competition. The fact pattern surrounding higher and lower priced men’s shoes in Brown Shoe is readily distinguishable from that around the higher priced and low priced categories of athletic goods in this case. Finally Spalding cites Columbia Pictures asserting that the court there “would not fragment the relevant lines of commerce (television programming) into separate so-called lines of commerce by reference to quality-derived price distinctions.” In that case the court declined to find that “feature films”- — -i. e., those films originally produced for theatre viewing and later released for television showing — constituted a line of commerce or product market distinct from other types of television programming material including syndicated films produced specifically for television, live programming video taped shows, cartoons and shorts. The court held: “To determine whether or not there is a reasonable probability of a substantial lessening of competition, Section 7 of the Clayton Act demands an examination into economic realities. All competition must be considered, including competition faced by the product in question from other products.” 189 F.Supp. at p. 183. It concluded: “In sum, the evidence establishes that feature films face a high degree of competition from other forms of television programming material; that they do not have peculiar characteristics or uses that are significant for television purposes; and that they are reasonably interchangeable with, and compete against, all other types of television programming material. The Court’s conclusion is that there is no line of commerce or product market limited to feature films alone.” 189 F.Supp. at pp. 191-192. This case is distinguishable for here the Commission examined the, economic realities of the athletic goods industry and found that the evidence established that “in each of the various product lines for which AGMA price categories were established there is a separate line of low priced items which is not sold in competition with other items in the same product line.” It found that the “manufacture and sale of the low price line of athletic products involves an entirely different market” from “the production and sale of athletic goods in the higher priced, higher quality line,” and that the “products in each of these categories are physically distinct from those in the other; they are different in quality and price, as well as in the purpose for which they are made and used;” and that “these two categories within the various product lines can be distinguished competitively from each other.” Direction for the determination of the relevant market was given by the Commission, itself, in Brillo Manufacturing Co., FTC Dkt. 6557 (1958), CCH Trade Reg.Rep., Par. 27,243, as follows: “* * * We think the hearing examiner in concluding as a matter of law that industrial steel wool was the relevant market erred in basing his determinations solely on the fact that those were the wares being produced by the acquired and acquiring companies. The test instead is whether these products are shown by the facts to have such peculiar characteristics and uses as to constitute them sufficiently distinct from others to make them a ‘line of commerce’ within the meaning of the Act. United States v. E. I. duPont de Nemours & Co. [1957 Trade Cases Par. 68,723], 353 U.S. 586 [77 S.Ct. 872, 1 L.Ed.2d 1057] (1957). That the acquired and acquiring corporations both made industrial steel wool.was only one circumstance to be considered. Additional factors which could have been taken into account include data relating to the manner in which the products are marketed, their physical characteristics, prices, and possibly other things bearing on the question of whether ' or not they may be distinguished competitively from other wares. On the other hand, as the examiner in essence held, the mere fact that articles other than steel wool are marketed for industrial use as abrasives is not adequate legal warrant for including all abrasive products in the relevant line of commerce. The determinations as to the area of effective competition should have been made on the basis of all record facts delineating the relevant market or markets. * * * ” The Commission in this case faithfully followed this earlier observation. The Commission arrived at its determination that the AGMA higher priced baseballs (and other products) constituted lines of commerce based on something" more than a mere consideration that both Spalding and Rawlings manufactured the-same products. Rather, the Commission-was influenced by the testimony of witnesses that those price categories delineated products with peculiar characteristics and uses as described in duPontGeneral Motors. Those peculiar characteristics and uses were found to be in the superior raw materials and labor with which those products were constructed as distinguished from the low priced ones; in their particular suitability for use in organized competitive games and in that they were not interchangeable with lower priced items for the purposes of their purchasers in the market. The Commission found that, these higher priced products constituted-a distinct area of effective competition. Segments of product lines have been held to be relevant market areas or lines-of commerce in a number of cases. In Reynolds Metals Co., FTC Dkt. 7009, CCH Trade Reg.Rep. par. 28,533 (1959) the Commission held that “decorative aluminum foil for florists” is a separate line of commerce from “aluminum foil generally” because of different, physical characteristics in use, marketing characteristics, price behavior and other factors. In United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (S.D.N.Y.1958) the court refused to find that “pipe” constituted a line of commerce, but found that buttweld pipe, electric-weld pipe and seamless pipe each were distinct lines of commerce, on the basis of the peculiar characteristics and uses standards. In Crown Zellerbach Corp. v. Federal Trade Commission, FTC Dkt. 6180, 54 FTC 769 (1957), affirmed 296 F.2d 800 (9 Cir. 1961), census coarse papers were held to be lines of commerce as distinguished from other census papers. In International Boxing Club of New York v. United States, 358 U.S. 242, 249, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959), a Sherman Act case, the Court sustained the finding that the relevant market was the promotion of championship boxing contests in contrast to all professional boxing contests. The Commission correctly found that AGMA price categories within product lines constitute separate and distinct lines of commerce and that the higher priced categories were the relevant lines of commerce for the purpose of appraising the competitive effect of the acquisition in this case. The Athletic Goods Industry as a Relevant Line op Commerce The Commission also found “that the industry itself is a relevant market within which to measure the impact of the merger”, stating: “Counsel supporting the complaint also contends that the athletic goods industry as a whole constitutes a line of commerce within the meaning of Section 7 of the Clayton Act. We believe the record fully supports this contention. The testimony of AGMA officials establishes that the principal products of this industry are those listed in the AGMA Census Reports. These products are manufactured and sold by Spalding and formerly had been manufactured and sold by Rawlings. They are products which are required to be used in established and well recognized athletic games. They have peculiar characteristics and end-uses for which there are no substitutes; they are distinct from the products of other industries; and are sold in a recognized market with its own competitive standards. See United States v. Bethlehem Steel Corporation [D.C.], 168 F.Supp. 576 (1958). Moreover the athletic goods industry is recognized by its members and by its trade association as a separate and distinct industry. * * * ” Spalding attacks this position of the Commission claiming that it is as illogical to aggregate the various product lines into an “industry line of commerce” as it is to separate a product line into higher and low priced categories since “ ‘a line of commerce’ may consist of only competitively indistinguishable products.” Here, it submits, the record shows that there are no competitive relationships between the product lines which can justify grouping them as a single line of commerce. Spalding again relies on Columbia Pictures and Brown Shoe this time to support its contention that the athletic goods industry lacked the necessary competitive interrelationships to justify it as a line of commerce. Spalding also argues that it is “specious” to justify an industry line of commerce on the basis of the findings of the Commission that: “ * * * These products (listed in the AGMA reports) are manufactured and sold by Spalding and formerly had been manufactured and sold by Rawlings.” and that “ * * * the athletic goods industry is recognized by its members and by its trade association as a separate and distinct industry.” It contends that the first finding “gives no insight into the area or areas of effective competition for those product lines” and “serves only to show the relevance to this proceeding of whatever lines of commerce are found to include one or more of those product lines.” Spalding contends that the second finding of the Commission is ineffective to “show either that such products are themselves competitively related or are as to other products competitively unrelated.” Finally Spalding argues that if there is any concept that would justify the aggregation of the product lines into an “economically related mass” it is the concept “that a host of products compete for the consumer dollars that are spent on physical recreation.” Under such a definition Spalding contends that an industry wide line of commerce in this case must include not only the product lines listed in AGMA reports, but also “equipment used in a multiplicity of other established and well recognized athletic games.” It cites the 1954 Census of Manufactures, compiled by the Department of Commerce, as supporting the conclusion that the sporting and athletic goods industry must include many products outside the “narrow AGMA frame of reference adopted by the Commission”, such as bowling and billiard equipment, gymnasium and playground equipment, hunting and fishing gear and sporting arms and ammunition. We do not share Spalding’s view that a logical dilemma was created when the Commission aggregated what it had found to be lines of commerce in this case, viz., higher and lower priced athletic products, each competitively distinct from the other, into an industry line of commerce. Spalding’s assertion that an inconsistency is brought about because a single line of commerce may consist of only “competitively indistinguishable” products does not follow. The Commission has found from the evidence before it that there are competitive relationships between the lines of commerce warranting them to be aggregated as a group for the purpose of measuring the impact of the merger on competition. The products are grouped together for distribution, by at least each of the four principal manufacturers and sellers, Spalding, Rawlings, Wilson and MacGregor, in their respective catalogues of merchandise, displaying the several items according to seasonal demands for equipment for games such as baseball, golf, softball, tennis, badminton and volley ball in their spring and summer catalogues. Football, basketball and boxing equipment are featured in those issued for the fall and winter. The market in which the products are sold is a recognized one with its own competitive standards. Each of the general line companies integrated its products for promotion by way of national advertising, adoption contracts and endorsements by prominent figures in the athletic world resulting in competitive interrelationships between the product lines of commerce. The Commission did not rely for its conclusion that the athletic goods industry was a line of commerce only on its finding that AGMA listed products were manufactured and sold by both Spalding and Rawlings and that the athletic goods industry is recognized by its members and trade association as a separate and distinct industry. In addition, it had before it the foregoing evidence of the pattern of a market area on which to base its conclusion that there was an athletic goods industry and that the industry in itself, was a line of commerce whereby the impact of the merger could be measured to ascertain whether it transgressed Section 7. It is true, as suggested by Spalding, that the 1954 Census of Manufactures of the United States Department of Commerce included in its survey of sporting and athletic goods, equipment used in games other than those specified in the AGMA reports. But that does not dictate the enlargement of the boundaries of the athletic goods industry as viewed in this case. The Census of Manufactures was designed as a statistical report upon the sporting and athletic goods manufacturers on a broad and comprehensive sweep. The athletic goods industry in this case was defined by the manufacturers of athletic equipment through AGMA as distinctive and separate. As has been said, its products were equipment for use in the established and well recognized games of baseball, softball, basketball, golf, tennis, badminton, soccer, volley ball and boxing for the most part performed to large spectator groups. The sporting and athletic goods and equipment outside the AGMA classifications are foreign to the products which were established as forming the athletic goods industry as it existed and as it was known at the time of this merger. Spalding again refers to Columbia Pictures and urges that it “demonstrates the nature of the competitive interrelationships necessary to find an industry line of commerce.” As has been noted, supra, the court in that case refused to find a separate and distinct line of commerce or product market limited to feature films, in the light of the factors which indicated that feature films were devoid of significant distinctiveness from other types of television programming material. The question of whether an industry may be regarded as a line of commerce was not considered in Columbia Pictures and nothing in the case militates against the conclusion by the Commission here that the athletic goods industry as a whole constitutes a line of commerce. In United States v. Brown Shoe Company, Inc., supra, cited by Spalding, the court observed that there was “a close question as to whether 'shoes — as such’ could be treated as a Tine of commerce.’ ” Having viewed the facts of the case, i. e., “the practices in the industry, the characteristics and uses of the products, their interchangeability, price, quality and style”, it found that it could be “unfair and unjust” to classify shoes as a whole as a line of commerce. It declared that “all ‘men’s shoes’ ”, “all ‘women’s shoes’ ” and “all ‘children’s shoes’ ”, are regarded by the entire industry and the public as separate and independent classifications, regardless of price and'intended use. It held that each classification has suff