FEDERAL TRADE COMMISSION, PETITIONER V. INDIANA FEDERATION OF
DENTISTS
   No. 84-1809
   In the Supreme Court of the United States
   October Term, 1985
   On Writ of Certiorari to the United States Court of Appeals for the
Seventh Circuit
   Reply Brief for the Federal Trade Commission
   We demonstrated in our opening brief that the court of appeals
misapprehended and grossly misapplied the substantial evidence
standard in overturning the Federal Trade Commission's determination
that respondent engaged in an unreasonable restraint of trade.  The
conspiracy led by respondent to prevent dentists from providing x-rays
to insurers plainly reduced competition among dentists, insulating
dentists from market forces that create incentives for compliance with
insurers' cost containment efforts.  Respondent's answering brief and
the briefs filed by amici curiae in support of respondent /1/ do not
refute our position.
   1. In our opening brief, we observed that this case does not
present an occasion for the Court to determine the manner in which
antitrust analysis should take account of claims that a restraint of
trade is justified on the ground that it promotes quality health care.
 That question does not arise here because respondent failed to supply
any factual support for its claim that the ban upon submission of
x-rays to insurers was necessary to maintain quality dental care.  See
FTC Br. 36-43.
   All of the amici supporting respondent agree with our conclusion.
See AMA Br. 24;  ADA Br. 13;  PSAM Br. 2;  ACR Br. 2.  They concede,
either explicitly or implicitly, that there simply is no factual
support for respondent's quality of care claim.  /2/ Respondent alone
contends (Br. 19-26) that this Court should hold that the conspiracy
did not violate the antitrust laws because it promoted quality dental
care.  However, the Commission correctly concluded (Pet. App. 91a-96a)
that the conspiracy was not justified by such quality of care
considerations.  /3/
   Respondent argues (Br. 26) that its conspiracy was necessary to
prevent insurers from using x-rays to make medical diagnoses, but, as
we discussed in our opening brief (at 39-40), the diagnosis is made by
the treating dentist;  the insurer simply evaluates a claim for
reimbursement.  The patient at all times remains free to select the
course of treatment that he desires.  Moreover, an insurer denies a
claim or awards less than full reimbursement only pursuant to a
recommendation by a licensed dentist, who may obtain any information
in addition to the x-rays that he deems necessary to form a
professional judgment regarding the appropriate treatment (Pet. App.
92a).  Thus, there is no support whatsoever for respondent's claim
that insurers make medical diagnoses or that insurers' use of x-rays
results in inadequate dental care.  /4/
   Respondent attempts to bolster its claim by citing (Br. 25-26)
assorted bulletins, informal pronouncements, and letters issued by
employees of various Indiana state agencies as proof that insurance
carriers violated Indiana law by using dental x-rays to determine
insurance benefits.  In considering this same "evidence," however, the
Commission found that "none of the documents" cited by IFD supports
the proposition that state law forbade insurers from using dental
x-rays to make health insurance benefits determinations.  Pet. App.
102a;  see also id. at 98a-102a.  /5/ Moreover, even if one could
imagine an Indiana policy barring an insurer from using x-rays to
determine its contractual liability to pay claims, enforcement of such
a policy surely would rest with the appropriate state officials.
Respondent has not attempted to explain why the antitrust laws should
permit ad hoc enforcement of such a state policy through a conspiracy
among competitors motivated in large part by their own economic
interests.  Cf. Fashion Originators' Guild, Inc. v. FTC, 312 U.S. 457
(1941).
   In view of the lack of evidence supporting IFD's proffered
justification for the conspiracy, the court of appeals erred in
premising its analysis upon "the fact that the conduct of the IFD
member dentists is not designed to drive out competitors but to
promote a legal, moral, and ethical policy of quality and proper
dental care" (Pet. App. 33a n.15).  IFD simply failed to make any
threshold showing that its conduct could be justified on ehtical
grounds.  /6/
   2. The Commission analyzed the conspiracy led by respondent under
the rule of reason and found that the conspiracy constituted an
unreasonable restraint of trade.  We showed in our opening brief (at
23-36) that this determination plainly is supported by substantial
record evidence.
   a. Respondent first contends (Br. 19, 28) that the Commission
failed to engage in the analysis necessary to conclude that the
conspiracy is unlawful under the rule of reason.  The AMA elaborates
on this contention, arguing that there exist three mutually exclusive
modes of analysis that may be applied in evaluating alleged restraints
of trade -- per se analysis, "truncated" or "limited" rule of reason
analysis, and "full" or "traditional" rule of reason analysis -- and
that the Commission's decision cannot be sustained under either
"limited" or "full" rule of reason analysis.  AMA Br. 10-14, 18-30.
This argument is based upon a misunderstanding of the standards
governing analysis under the rule of reason.
   The AMA concedes (Br. 12 n.7) that this Court has not held that
there are three distinct standards for analyzing restraints of trade.
In fact, the Court has referred to two categories of analysis -- per
se rules and the rule of reason (see National Society of Professional
Engineers v. United States, 435 U.S. 679, 687-692 (1978)), and noted
that "there is often no bright line separating per se from Rule of
Reason analysis" (NCAA v. Board of Regents, No. 83-271 (June 27,
1984), slip op. 17 n.26).  Indeed, several commentators have spoken of
a single standard under which restraints are measured on a continuum
of reasonableness ranging from inherently anticompetitive at one end
to procompetitive at the other.  /7/
   Rule of reason analysis is a flexible approach to determining the
"reasonableness" of an unending variety of commercial practices that
differ greatly in their complexity, purpose, and effect.  In some
situations, a rule of reason inquiry may entail "an incredibly
complicated and prolonged economic investigation into the entire
history of the industry involved, as well as related industries, in an
effort to determine at large whether a particular restraint has been
unreasonable" (Northern Pac. Ry. v. United States, 356 U.S. 1, 5
(1958)).  In other circumstances, the rule of reason may allow summary
condemnation of an agreement that inherently restrains trade and
offers no redeeming procompetitive benefits.  NCAA v. Board of
Regents, slip op. 20-21;  Professional Engineers, 435 U.S. at 692-693;
 see also United States v. Philadelphia National Bank, 374 U.S. 321,
362 (1963) ("in any (rule of reason) case in which it is possible * *
* to simplify the test of illegality, the courts ought to do so in the
interest of sound and practical judicial administration").  The "full
rule of reason" and "truncated rule of reason" cited by respondent and
the AMA thus are not different tests;  they are convenient labels that
describe the amount of investigation required "to form a judgment
about the competitive significance of (a) restraint." Professional
Engineers, 435 U.S. at 692;  see also NCAA v. Board of Regents, slip
op. 16.  /8/
   The AMA faults the Commission for failing to invoke by name the
"truncated rule of reason" (Br. 8-9, 19, 25-26).  However, the
correctness of the Commission's decision cannot depend upon whether it
applied a particular label to its analysis, especially where the basic
analytic approach is the same.  The question instead is whether the
Commission's inquiry was sufficient to ascertain the competitive
effect of the restraint.  /9/ For example, in NCAA v. Board of
Regents, the Court applied a "limited" rule of reason analysis (slip
op. 20-26), but never expressly referred to such a standard.  The
Court stated only that it was analyzing the practices at issue "under
the Rule of Reason" because a "fair evaluation of their competitive
character requires consideration of the * * * justifications for the
restraints" (id. at 16).  The Court identified the threat to
competition posed by the challenged practices -- limiting price
competition and output, and frustrating consumer preference -- and
declared the practices unlawful because they were not justified by any
valid procompetitive effect (id. at 20-33).
   The Commission applied a similar rule of reason analysis here,
identifying the threat to competition and considering proffered
justifications.  As we discussed in our opening brief (at 25-26), the
conspiracy at issue in this case resembles attempts by horizontal
competitors to dictate the terms upon which they will deal with others
(Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930))
and competitors' efforts to restrict the flow of price-related
information (Professional Engineers, supra).  Since the facts
contained in the record before the Commission indicated that the
agreement at issue here had a similar anticompetitive effect (see FTC
Br. 23-36;  pages 11-15, infra), the Commission correctly concluded
that no elaborate analysis was necessary to find that -- absent any
procompetitive justification -- the agreement constituted an
unreasonable restraint of trade (Pet. App. 85a-86a).
   Respondent argues that this analysis is incorrect because
Professional Engineers involved an "absolute ban" on price information
while this case concerns only a "very limited refusal to cooperate
with only one aspect of the insurers' claims processing procedures."
IFD Br. 23;  see also AMA Br. 30.  In Professional Engineers, the
conspirators agreed to withhold information about prices until a
purchaser tentatively selected an engineer-seller on the basis of
reputation or other factors.  After an engineer was selected, however,
the purchaser could negotiate the price to be charged and select a
different engineer if the negotiated price was unacceptable (435 U.S.
at 684 n.6).  The restraint thus affected the dissemination of price
information only to a limited extent;  it required engineers to
withhold such information from buyers at the time and in the form
buyers deemed price information most desirable in order to further
their goal of minimizing the cost of engineering services.
   Here, insurers -- who ultimately pay for dental services -- have
concluded that, in order to carry out cost containment policies that
were sought by consumers, they require x-rays both to predetermine
benefits and decide whether to authorize payment for services already
rendered.  The conspiracy denies them this important method of
obtaining the price-related information they need to review patient
claims and efficiently identify claims that require further
consideration.  Access to x-rays is necessary so that insurers may pay
only for the least expensive but adequate care, and avoid paying for
unnecessary services.  While the conspiracy here is not "price fixing
as such, no elaborate industry analysis is required to demonstrate the
anticompetitive character of such an agreement" (Professional
Engineers, 435 U.S. at 692).  Thus, the Commission correctly concluded
that a more elaborately detailed inquiry was not needed to determine
that the conspiracy led by respondent exerted an anticompetitive
effect warranting condemnation under the antitrust laws.  /10/
   b. Respondent claims (Br. 27-35) that the record does not contain
facts necessary to support the Commission's determination, but the
record is replete with evidence demonstrating that the Commission
correctly applied the legal analysis discussed above (see pages 5-10,
supra) to conclude that the conspiracy led by respondent constituted
an unreasonable restraint of trade.  IFD does not dispute that, e.g.,
(1) the statewide Indiana Dental Association and its members, who
comprised 85% of licensed Indiana dentists, engaged in a collective
refusal to submit x-rays to insurers for claims review;  /11/ (2) by
early 1975 most dentists in Indiana were refusing to submit x-rays to
insurers;  /12/ (3) IFD in large part was formed to continue this
concerted action when IDA's enthusiasm for the consiracy waned because
of concern about antitrust liability;  /13/ (4) IFD's first president
acknowledged dentists' strong economic interest in withholding x-rays
when he was a leader of the IDA phase of the conspiracy;  /14/ (5) one
of IFD's first actions was to adopt a work rule barring IFD members
from sending dental x-rays to insurers who requested x-rays for
purposes of claims review and cost containment;  /15/ (6) a solid
majority of dentists practicing in the area covered by IFD's Anderson
and Lafayette chapters were members of IFD;  /16/ and (7) IFD members
refused to send x-rays to insurers.  /17/ These facts surely are
sufficient to show that IFD's conspiracy had an anticompetitive
effect.
   IFD first argues (Br. 28-30) that there is no evidence in the
record to support the Commission's conclusion that p oviding x-rays to
insurers was an element of competition among dentists.  In fact, as we
demonstrated in our opening brief (at 27-31), documentary evidence
clearly establishes that dentists were aware of competitive pressure
to supply x-rays to insurers and that dentists in fact competed for
patients with respect to this aspect of cooperation with insurers.
/18/
   IFD next argues (Br. 30-32) that the Commission's determination
cannot be upheld because the Commission did not describe with
precision the geographic market affected by the conspiracy.  IFD
complains that the record does not include "evidence regarding the
number or percentage of insured patients who patronize IFD members
and, thus, no empirical evidence of patient demand" (IFD Br. 29) and
that "to establish the contours of relevant geographic markets * * *
(n)either a static nor a dynamic analysis was attempted, and no
patient flow data was ever introduced" (id. at 30 (footnote omitted)).
   IFD's complaints are unfounded.  The types of evidence identified
by IFD would be probative in defining a relevant market, but such
evidence is not the only means of determining that dentists compete
among themselves with respect to submission of patient claims
information to insurers or that an agreement by dentists not to
compete with respect to x-ray submission affects competition in the
communities in which the dentists practice.  "(W)here the
anticompetitive effects of conduct can be ascertained through means
short of extensive market analysis, and where no countervailing
competitive virtues are evident, a lengthy analysis of market power is
not necessary.'" NCAA v. Board of Regents, slip op. 23-24 n.42;  see
also Professional Engineers, 435 U.S. at 695.
   The Commission found that IFD's conduct was the continuation of a
statewide conspiracy begun by IDA, the state dental association, and
that IDA and IFD had the market power to make their boycott effective,
with IDA's membership including 85% of all dentists licensed in
Indiana, most of whom participated in the boycott (Pet. App.
151a-152a, 172a-175a).  /19/ In continuing IDA's statewide conspiracy,
IFD achieved substantial majority participation among the practicing
dentists in Madison County and in the area covered by its Lafayette
Chapter. Pet. App. 39a-40a, 84a-85a;  J.A. 124;  see FTC Br. 32 n.24.
Given the broad scope of the initial boycott and its evident economic
purposes and effect, no further analysis of the geographic market was
required to determine that IFD's conduct had an impermissible
anticompetitive effect.  See NCAA v. Board of Regents, slip op. 23-24
& n.42;  compare Paramount Famous Lasky Corp. v. United States, 282
U.S. at 44.
   Finally, IFD argues (Br. 32) that "the Commission wholly failed to
demonstrate any adverse impact on competition or consumers." IFD
complains that "(t)he record * * * fails to reflect evidence of
patient complaints, the number of insured patients involved, or the
avilability or use of alternatives" (id. at 33).
   However, IFD ignores the ample record evidence establishing that
the conspiracy had an adverse effect upon both patients and insurers.
The evidence demonstrates that (1) IFD and IDA possessed market power,
(2) the conspiracy was motivated by economic purposes, (3) dentists
did stop competing to a substantial degree with respect to their
policy of submitting x-rays to insurers, (4) insurers incurred
substantial costs as a result of the collective refusal to submit
x-rays, and (5) patients were unable to engage the services of
dentists who would submit x-rays and thus lost the benefit of their
insurance contracts.  See FTC Br. 9-12.  This evidence is more than
sufficient to support the Commission's finding of an unlawful
anticompetitive effect.  See American Textile Manufacturers Institute
v. Donovan, 452 U.S. 490, 522-523 (1981);  Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951).  /20/
   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed and the
case remanded with instructions that the court affirm and enforce the
order of the Commission.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   MARCY J.K. TIFFANY
      Acting General Counsel Federal Trade Commission
   MARCH 1986
   /1/ The following entities have submitted briefs amicus curiae
supporting IFD:  the American Dental Association (ADA);  the American
Medical Association (AMA), the Physicians and Surgeons Association of
Massachusetts (PSAM);  and the American College of Radiology (ACR).
   We note that the AMA mistakenly asserts that this case was remanded
to the Commission by the court of appeals (Br. 20);  the court merely
vacated the Commission's order and awarded costs to IFD (Pet. App.
51a).
   /2/ For example, the AMA states that IFD "apparently did not
present any evidence that its practices were genuinely intended to
promote patient care or that they had that effect" (AMA Br. 24).  It
is particularly noteworthy that the American Dental Association makes
no attempt to argue that IFD's conspiracy was in any way related to
maintaining the quality of patient dental care, despite the ADA's
obvious familiarity with the relevant medical issues.
   /3/ Respondent claims (Br. 17) that our dispute is "with the (court
of appeals') consideration of 'quality of care' factors in applying
the rule of reason," but the court of appeals did not expressly
overturn -- or even address -- the Commission's factual finding that
respondent's conspiracy could not be justified as necessary to promote
quality dental care (see FTC Br. 37).
   /4/ Contrary to respondent's assertion (Br. 26), we do not contend
that health care providers must produce a "body count" before health
and safety justifications may be considered in antitrust analysis.  At
the minimum, however, a party must produce at least some evidence
supporting an assertion that a challenged restraint serves to promote
health or safety before the relevance of such a justification need be
addressed.  Respondent simply has not supplied any evidence that
insurers' use of x-rays in benefits determinations results in
inadequate dental care.
   /5/ The Commission found that the documents cited by IFD were not
binding interpretations of state law (Pet. App. 102a-103a).  Indeed,
the administration law judge (ALJ) noted in a related context that the
"unofficial advisory letter" from the Deputy Attorney General of
Indiana (see Resp. Br. 4-5) contained a disclaimer stating that "'the
views expressed herein are those of the writer and are not to be
considered to be the opinion of the Attorney General of Indiana nor a
precedent of the Attorney General's office'" (Pet. App. 252a-253a
(footnote omitted)).  The Commission noted that no enforcement action
ever had been brought by the State of Indiana against insurers that
used x-rays for claims review, and that the relevant legal authority
weighed against IFD's contention that insurers' use of lay personnel
to grant (but not deny) insurance claims constituted the unlicensed
practice of dentistry (id. at 100a-101a).
   To the extent that IFD's argument is an effort to resurrect its
rejected state action defense (see FTC Br. 43 n.35), the documents
upon which it relies do not evidence the requisite state policy to
supplant competition with regulation.  No Indiana regulation governs
insurers' review of dental x-rays for purposes of benefits
determinations and state officials did not actively supervise the
private boycott conducted by IFD.  See, e.g., California Retail Liquor
Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105-106 (1980).
   /6/ IFD argues (Br. 23-25) that, should the Court address the
manner in which noneconomic justifications are considered under the
antitrust laws, it should adopt the test set forth in Wilk v. AMA, 719
F.2d 207 (7th Cir. 1983), cert. denied, Nos. 83-1455 & 83-1602 (May
21, 1984).  Wilk holds that professionals may engage in exclusionary
practices directed against competitors when the restraint is motivated
principally by an objectively reasonable and genuinely held concern
for proper scientific method that could not have been satisfied in a
manner less restrictive of competition (719 F.2d at 227).  To the
extent Wilk indicates that a noneconomic intent or motive may outweigh
a showing of anticompetitive effect, it violates this Court's teaching
that antitrust analysis "focuses directly on the challenged
restraint's impact on competitive conditions." National Society of
Professional Engineers v. United States, 435 U.S. 679, 688 (1978).
The appropriate analysis cannot credit bald assertions or unreasonable
assumptions that competition is somehow harmful, and it cannot ignore
a restraint's anticompetitive effect.  Instead, once an agreement has
been shown to have an anticompetitive effect, the inquiry should be
whether the agreement in fact has counterbalancing procompetitive
effects or otherwise promotes economic efficiency.  For example,
voluntary standards -- which are common in the health care industry --
frequently might satisfy this test in that they may promote quality
without eliminating consumer choice.  See FTC Br. 38 n.30.
   Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2
(1984), is not to the contrary.  The Court held in that case that a
tying arrangement subject to rule of reason analysis will be
invalidated only upon proof that "the actual effect" of the tie is to
restrain competition unreasonably (id. at 29).  The case thus
addresses the showing that a plaintiff must make in order to provide
its case.  Contrary to the assertion of some of the amici (PSAM Br.
9-10;  ACR Br. 9), Justice O'Connor's concurring opinion in that case
does not suggest that a restraint is permissible if alleged health
care benefits unrelated to competition outweigh its costs.  Rather,
consistent with the Court's opinion in Professional Engineers, the
concurrence urges that "(t)he time has * * * come to abandon the 'per
se' label and refocus the inquiry on the adverse economic effects, and
the potential economic benefits, that (a challenged restraint) may
have" (466 U.S. at 35 (emphasis added)), and notes that "(t)he
ultimate decision whether a tie-in is illegal under the antitrust laws
should depend upon the demonstrated economic effects of the challenged
agreement" (id. at 41 (emphasis added)).
   In any event, the Wilk test is not satisfied here.  As we have
discussed, IFD's alleged concern for patient care was far from
objectively reasonable, and was motivated in substantial part by a
desire to shield dentists' incomes from insurers' cost containment
programs.  See also FTC Br. 39-43.
   /7/ See L. Sullivan, Handbook of the Law of Antitrust 196 (1977)
(the per se rule is a "special case of rule of reason analysis");  R.
Bork, The Antitrust Paradox 18 (1978);  Gerhart, The Supreme Court and
Antitrust Analysis:  The (Near) Triumph of the Chicago School, 1982
Sup. Ct. Rev. 319, 329-330;  Rahl, Price Competition and the Price
Fixing Rule -- Preface and Perspective, 57 N.W. L. Rev. 137, 139-140
(1962).  The Court's use of the term "unreasonable" with reference to
per se rules also supports this view.  See, e.g., United States v.
Trenton Potteries Co., 273 U.S. 392, 397 (1927) (noting that some
restraints are "themselves unreasonable and unlawful restraints
without the necessity of minute inquiry");  United States v. Socony --
Vacuum Oil Co., 310 U.S. 150, 218 (1940) (describing price agreement
as an unreasonable restraint of trade).
   /8/ Invocation of a per se rule represents a finding that a
practice may be summarily condemned because it is likely to have
"predominantly anticompetitive consequences," i.e., the conduct poses
a clear threat to competi on and there are "generally" no "plausible"
procompetitive justifications that require further scrutiny.
Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing
Co. No. 83-1368 (June 11, 1985), slip op. 10.  Naked price-fixing is
the most notable example.  See Arizona v. Maricopa County Medical
Society, 457 U.S. 332, 351 (1982);  United States v. Socony -- Vacuum
Oil Co., 310 U.S. 150, 212-214 (1940).  A determination that a per se
rule should not be applied, and that a restraint should be analyzed
under the rule of reason, is appropriate where the competitive threat
is not clear or arguable procompetitive benefits might justify the
restraint and require additional scrutiny.  The subsequent inquiry
under the rule of reason may be elaborate or relatively simple,
depending on the evidence of the restraint's anticompetitive effects
and potential benefits.  This Court's decision in NCAA v. Board of
Regents, supra, demonstrates that a rule of reason inquiry need not be
elaborately detailed if initial investigation reveals that the
practice poses a threat to competition and is not supported by a valid
procompetitive justification.  However, if there exist genuine
procompetitive benefits to weigh against the threat to competition,
the competitive effect of the restraint generally cannot be
ascertained without a more detailed inquiry.
   /9/ This Court has required only that "(t)he agency must articulate
a 'rational connection between the facts found and the choice made' *
* * While (the Court) may not supply a reasoned basis for the agency's
action that the agency itself has not given * * * (it) will uphold a
decision of less than ideal clarity if the agency's path may
reasonably be discerned." Bowman Transportation Inc. v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 285-286 (1974) (citations
omitted).
   /10/ IFD and the AMA also argue that any analogy to Professional
Engineers is inappropriate because the Commission declined to find
that the conspiracy denied patients information that might have led
them to switch dentists (IFD Br. 22;  AMA Br. 29-30).  However, the
portion of the Commission's opinion upon which IFD and the AMA rely
(Pet. App. 89a n.14) addressed a minor argument raised by the
Commission's complaint counsel, that by depriving insurers of x-rays,
the conspiracy denied consumers insurer feedback about the
reasonableness of dental charges that might lead consumers to switch
dentists (see Complaint Counsel's Brief to the Commission 26).  The
Commission's refusal to elevate this tertiary argument of complaint
counsel to an independent basis for condemning the conspiracy is in no
way inconsistent with its other findings regarding the effects of
IFD's information restraint upon competition among dentists.  Thus,
the Commission specifically found (Pet. App. 85a) that the refusal to
provide x-rays "reduc(ed) or eliminat(ed) competition among dentists
as to their policy of dealing with third-party payers" and "thwart(ed)
the efforts of individual insurance companies to contain costs by
offering coverage for only the least expensive adequate course of
treatment" (id. at 83a).  It concluded that "(t)he final victim in
this distortion of the market was the patient policyholder who lost
the value of his insurance company's efforts to contain costs" (id. at
86a).
   The AMA also argues (Br. 29) that our reliance on Paramount Famous
Lasky is misplaced because the insurer cannot be equated with the
buyer of dentists' services.  However, as we discussed in our opening
brief (at 24-26), the Commission found that "(t)he insurers broadly
represent the economic interests of the dentists' patients" (Pet. App.
228a).  The present situation therefore cannot meaningfully be
distinguished from the conspiracy to dictate terms to purchasers held
to be unlawful in Paramount Famous Lasky.
   /11/ Compare FTC Br. 5-6 with IFD Br. 6 & n.6.  Moreover, contrary
to the suggestion of the AMA (Br. 22), the Commission did find that
the conspirators used coercion to enforce adherence to the conspiracy.
 During the IDA phase of the boycott the threat of censure was invoked
and dentists reported they did not submit x-rays to insurers because
they were fearful of retaliation (see Pet. App, 83a, 179a).  And as
the Commission noted, an express purpose of IFD was to intensify this
sort of pressure.  IFD's by-laws contemplated discipline of IFD
members by censure, fines, suspension, or expulsion for "any action
detrimental to the welfare of the organization" (id. at 217a;  J.A.
62-63), and IFD's Executive Committee considered the circumstances
under which IFD would seek (although "only as a last resort") to
"discipline, or (undertake) acts of reprisal against non-member
dentists and dissident members" (Pet. App. 220a;  J.A. 120).
   /12/ See FTC Br. 6.  IFD's brief is silent on this point.
   /13/ Compare FTC Br. 6-7 with IFD Br. 7.
   /14/ Compare FTC Br. 5 with IFD Br. 27.
   /15/ Compare FTC Br. 8 with IFD Br. 7-8, 11.
   /16/ Compare FTC Br. 9, 32 & n.24 with IFD Br. 31.
   /17/ Compare FTC Br. 8, 11-12 with IFD Br. 11.
   /18/ The AMA complains (Br. 23) that the documentary evidence
discussed in our opening brief was not identified in the Commission's
opinion.  Of course, the reason that some of the record evidence cited
in our brief was not discussed in the Commission's opinion is that the
proposition for which these documents are cited was conceded by IFD in
its briefs before the Commission (see FTC Br. 28).  No principle of
administrative law requires an agency to cite repetitive documentary
evidence to support a self-evident proposition that is unchallenged by
any of the parties to an administrative proceeding.
   /19/ This evidence alone resolves any question regarding the
existence of market power.  It is a settled principle of antitrust
law, noted by the Commission in its opinion (Pet. App. 78a n.11) and
not disputed by IFD or the court of appeals, that persons joining a
preexisting antitrust conspiracy with knowledge of the prior unlawful
conduct and with the intent to pursue the same unlawful objective are
civilly liable for all conduct in furtherance of the conspiracy,
including the acts that occurred before they joined the conspiracy.
Hays v. United Fireworks Manufacturing Co., 420 F.2d 836, 844 (9th
Cir. 1969);  Dextone v. Building Trades Council, 60 F.2d 47, 48 (2d
Cir. 1932);  In re Nissan Motor Corp. Antitrust Litigation, 430 F.
Supp. 231, 232-234 (S.D. Fla. 1977);  Walder v. Paramount Publix
Corp., 132 F. Supp. 912, 920 (S.D.N.Y. 1955), aff'd, 272 F.2d 349 (2d
Cir. 1959), cert. denied, 362 U.S. 952 (1960).  Applying this
principle, the Commission properly concluded that IFD could be charged
with a restraint of trade in a statewide market on the basis of IDA's
overwhelming statewide market power;  indeed, the express purpose of
the formation of IFD was to perpetuate the IDA conspiracy.  Pet. App.
85a n.12.  A contrary view would mean that even though the Commission
could stop the statewide conspirator (IDA) from continuing its
unlawful conduct -- as the Commission did by means of a consent
agreement (Pet. App. 60a n.2) -- it would be unable to act against
groups organized to continue the conspiracy until such time as those
groups regenerated the original restraint of trade on a scale
comparable to its original broad scale.
   /20/ IFD also asserts that, in any event, "a consumer has no
interest in the preservation of a fixed number of competitors greater
than the number required to assure his being able to buy at a
competitive price" (Br. 33).  But this is simply another way of
stating the requirement that a restraint must unreasonably restrict
competition.  The evidence in the record shows that this requirement
is satisfied here, where the conspirators achieved widespread
adherence to their agreement.  IFD cannot seriously contend that its
conspiracy is not unlawful because "new dentists * * * would enter the
market and any existing anticompetitive effect would be short-lived"
or because a few dentists already in the market might decline to join
the conspiracy (Br. 33-34).  That rationale would equally suggest
abandonment of the per se rule against price-fixing (and compel
exhaustive analysis of similar horizontal conspiracies that now may be
condemned in more abbreviated fashion) on the ground that any such
conspiracy could theoretically be undercut by new entrants or existing
market participants who decline to participate.