Antitrust Law-Exclusive Dealing Arrangements-Employment by Courts of Dual Tests in Applying Section 3 of the Clayton Act

Petitioner nationally markets its product through exclusive dealing contracts with 80,700 independent distributors. In 1958 petitioner’s distributors accounted-as to vitamin concentrates-for 61.52 percent of all house-to- house sales 8.6 percent of the total retail sales, and 34.6 percent of the total sales, of similarly-composed products. The FTC examiner’s finding that petitioner had violated section 3 of the Clayton Act was sustained by the Commission. On appeal, held, affirmed, one judge dissenting in part. The control of 61.52, 34.6 or 8.6 percent of the market sales by a seller having exclusive dealing contracts with its buyers is sufficient proof that competition has been “substantially lessened” in the line of commerce affected . Mytinger & Casselberry, Inc. v. FTC, 301 F.2d 534 (D.C. Cir. 1962).