In a series of cases culminating in the decision of United States v. Von's Grocery Co. in May 1966, the Supreme Court seems to have embraced a more and more rigidly mathematical approach to the enforcement of the Celler-Kefauver Anti-Merger Act of 1950. In this case no misbehavior on the part of the defendant (or of anyone else) was charged. The attack went not to conduct but solely to industry structure. The illegality was found by the court to rest heavily on certain statistical trends which it believed constituted an increase in "economic concentration" in the Los Angeles grocery market. In this industry and others, it seems in short that there has been a strange sort of gap between the facts, and the cognition of those facts on the part of the judges and others charged with interpreting and enforcing the law. The facts are there, available to public knowledge. But a majority of the justices have continued to harbor a mental picture of the problem which is inconsistent with those facts.
Kirkley S. Coulter,
The Information Gap in Antitrust Enforcement,
46 Neb. L. Rev. 630
Available at: http://digitalcommons.unl.edu/nlr/vol46/iss3/5