ALBERTA GAS CHEMICALS LIMITED, ET AL., PETITIONERS V. E. I. DUPONT
DE NEMOURS AND COMPANY, ET AL.

   No. 87-652

   In the Supreme Court of the United States

   October Term, 1987

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States As Amicus Curiae

   This brief is submitted in response to the Court's invitation to
the Solicitor General to express the views of the United States.

            TABLE OF CONTENTS
   Questions Presented
   Statement
   Discussion
   Conclusion

                          QUESTIONS PRESENTED

   This case arises from the 1981 acquisition of respondent Concoco,
Inc., by respondent E. I. DuPont de Nemours and Co. (DuPont).
Petitioners, who are competitors of DuPont in the production of
methanol, alleged that prior to the merger Conoco had developed plans
to become a producer of methanol and had intended, in connection with
efforts to stimulate demand for its anticipated production, to make
large methanol purchases.  They further alleged that after the merger
DuPont did not carry out those plans, depriving petitioners of the
opportunity to sell to Conoco and to reap the benefits of the
increased demand.  In addition, petitioners alleged that because of
the vertical integration of DuPont and Conoco, petitioners were
foreclosed from making methanol sales to Conoco.

   The case presents three questions:

   1. Whether petitioners have standing under Section 4 of the Clayton
Act, 15 U.S.C. 15, to recover damages purportedly arising from the
decision not to pursue Conoco's plan to stimulate demand for methanol.

   2. Whether petitioners have standing under Section 16 of the
Clayton Act, 15 U.S.C. 26, to seek injunctive relief, either because
respondents cancelled Conoco's marketing plans, or because Conoco was
eliminated as a prospective methanol producer, thereby increasing
DuPont's dominance in the market.

   3. Whether, in rejecting petitioners' foreclosure claim, the court
of appeals improperly ignored the sales that petitioners allegedly
would have made to Conoco had Conoco carried out its plan to make
large methanol purchases.

                               STATEMENT

   1. Petitioners-Alberta Gas Chemicals, Ltd., a Canadian firm, and
Alberta Gas Chemicals, Inc., its New Jersey subsidiary-are producers
of methanol, a chemical used in the manufacture of such products as
formaldehyde, plywood, particle board, and plastics.  In the highly
concentrated United States "merchant market" for methanol (the market
for methanol not used by the producing company in its own
manufacturing), petitioners' sales accounted for about 7% in 1981.
Respondent E. I. DuPont de Nemours and Co. (DuPont) was at that time
the largest domestic producer of methanol, recording sales of about
30% of the merchant market.  Prior to 1981, respondent Conoco, Inc.,
was an international energy company owning the largest coal reserves
in the United States and was also a purchaser of methanol for use in
its chemical and plastic manufacturing plants in New Jersey and
Louisiana.  In 1980 Conoco's purchases of methanol (about half of
which came from DuPont) represented approximately 1.8% of the total
merchant market sales in the United States (Pet. App. A22).  Conoco
purchased methanol from petitioners in the late 1970s, but by 1981 it
was no longer one of petitioners' methanol customers.  Id. at A3-A5.

   Although methanol is ordinarily manufactured from natural gas,
studies have demonstrated that coal may be used to generate the
product, through a gasification and liquefaction process.  During the
1970s and early 1980s, when crude oil prices rose sharply, companies
began to experiment with coal to produce synthetic fuels.  Prior to
1981, Conoco had considered becoming a methanol producers through the
construction of a large gasification facility Pet. App. A4.

   In 1981, DuPont acquired Conoco in a transaction involving
consideration of approximately 7.8 billion dollars.  Prior to the
acquisition, the Department of Justice conducted an investigation into
all aspects of the proposed transaction.  The Department objected to
the proposed transaction on grounds not at issue here and withdrew its
objection after the trasaction was restructured to alleviate the
Department's concerns.  After the merger, Conoco cancelled its plans
to develop a coal gasification facility.  It also sold its chemical
plant in Louisiana and dismantled the one in New Jersey.  By 1984,
Conoco's methanol purchases were minimal.  Pet. App. A2, A4, C3.

   2. On September 25, 1981, five days before DuPont's acquisition of
Conoco was to become effective, petitioners brought an action against
respondents in the United States District Court for the District of
New Jersey, alleging that the merger violated Section 7 of the Clayton
Act, 15 U.S.C. ( Supp. IV) 18, because it "may substantially lessen
competition" in the United States market for methanol.  Pet. App. A5.
Petitioners advanced two claims.

   First, petitioners alleged that, had Conoco carried out its plans
to become a methanol producer, it would first have taken steps to
stimulate market demand for the product.  In connection with doing so,
petitioners asserted, Conoco had intended to make large purchases of
methanol, prior to beginning its own production of the chemical.
Petitioners contended that, as methanol producers, they would have
made substantial sales to Conoco during this period prior to Conoco
production.  Moreover, petitioners asserted, they would have benefited
in the longer run from the increased market demand for methanol that
Conoco had intended to stimulate.  They alleged that, following the
merger, DuPont jettisoned Conoco's plans and thereby injured
petitioners.  Pet. App. A4-A5.

   Second, petitioners alleged that, but for the merger, they would
have made methanol sales to Conoco for its chemical plants in New
Jersey and Louisiana.  After the merger, petitioners contended, Conoco
filled some of its methanol needs from DuPont and other companies but
made no purchases from Alberta.  Pet. App. A5.

   On June 5, 1986, after extensive discovery, the district court
granted summary judgment in respondents' favor with respect to
petitioners' first claim but denied summary judgement with respect to
the second claim (Pet. App. B1-B12).  For purposes of the motion, the
court assumed that the acquisition of Conoco violated Section 7 of the
Clayton Act and that petitioners had been injured in the ways that
they had alleged.  But relying on this Court's decision in Brunswick
Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), the district
court held that the injuries purportedly caused by respondents'
decision to discontinue Conoco's production and marketing plans did
not constitute "antitrust injury" and were therefore "not cognizable
under Section 4 of the Clayton Act" (Pet. App. B6).  The court
explained (id. at B9, citing Brunswick, 429 U.S. at 488) that a
plaintiff may not sue for damages unless he can show injury "caused
not merely 'by reason of an unlawful acquisition, but by reason of
that which made the acquisition unlawful.'" Under that standard, the
court held, petitioners lacked standing to collect damages arising
from respondents' decision not to pursue Conoco's "demand-creation"
plans.  The court stated (Pet. App. B11) that "(i)t should be
immediately obvious that this alleged injury bears absolutely no
relationship to the aspect of the merger which is said to make it
illegal under Section 7, that is, that it lessens competition in the
methanol industry." Rather, the court explained (ibid.), the injury
claimed by petitioners as a result of the termination of Conoco's
plans "is completely unconnected to DuPont's methanol-producing
capacity.  It would have occurred had any acquirer of Conoco chosen to
terminate those plans * * *."

   Thereafter, on September 3, 1986, the district court granted a
further summary judgment, rejecting petitioners' remaining claim for
damages arising from the foreclosure of Conoco as a methanol purchaser
(Pet. App. C1-C6).  The court explained that "two undisputed facts"
required that result.  "The first fact is that since the merger DuPont
has divested or shut down the methanol-consuming operations it
acquired from Conoco.  The second fact is that even before the merger
Conoco had no plans to purchase methanol from (petitioners)." Id. at
C3.  The court concluded (id. at C5) that "(o)n this record, there is
no possibility that (petitioners) will be able to show damages from
any lost sales due to the merger." Finally, having found that
petitioners lacked standing to sue for damages, the district court
rejected for the same reason their claim for injunctive relief.

   3. The court of appeals affirmed by a divided vote, holding that
petitioners lacked standing to sue either for damages or for
injunctive relief (Pet. App. A1-A45).  Like the district court, the
court of appeals assumed arguendo (id. at A8, A13-A14) that the merger
was unlawful under the Clayton Act, and it likewise assumed that
petitioners had been injured in the manner they alleged.  But applying
the rule in Brunswick, the court explained that "to recover treble
damages for a Section 7 violation, plaintiffs must prove more than
harm causally linked to an illegal presence in the market.  Rather,
they must establish antitrust injury-'injury of the type the antitrust
laws were intended to prevent and that flows from that which makes
defendants' acts unlawful.'" Id. at A11 (quoting Brunswick, 429 U.S.
at 489).  The court of appeals concluded that petitioners did not
satisfy that standard.

   In reaching that conclusion, the court first rejected (Pet. App.
A13-A19) the "horizontal" claims based on the cancellation of Conoco's
demand-creation plan.  Those injuries, the court explained (id. at A14
(citation omitted)), "do not flow 'from that which makes the
defendants' acts unlawful'" because they "were neither connected with,
nor resulted from, DuPont's market power in the methanol-producing
industry." In particular, the court stated (ibid), "the same harm
would have occurred had any acquirer decided to curtail Conoco's
production and marketing plans." The court observed (id. at A15
(emphasis in original;  footnote omitted)) that "Conoco's status as a
potential competitor in the methanol merchant market is irrelevant to
(petitioners') theory of injury.  (Petitioners') alleged injuries flow
not from the elimination of Conoco as a potential competitor, but from
the loss of Conoco as a future consumer of methanol." The court said
(id. at A15-A16):

         While in this case there may be some connection between
      Conoco's plan to become a competitor and its plan to consume
      more methanol in the future, the former plan is really only
      coincidental to the harm which (petitioners) supposedly
      sustained.  In a challenge to a horizontal merger, a private
      plaintiff must show that it was injured because the acquiring
      and the acquired firms are competitors in a field of commerce.
      It is not enough to demonstrate that, by happenstance, the
      merging firms are competitors or potential competitors.  ( /1/ )

   The court next held (Pet. App. A19-A26) that petitioners' vertical
claim-that the merger had foreclosed them from making methanol sales
to Conoco-failed to state an antitrust violation because any such
foreclosure was trivial.  The court observed (id. at A23-A24 (footnote
omitted)) that "(s)ince the merger, (petitioners) ha(ve) freely sold
to the rest of the merchant market and indeed ha(ve) increased (their)
annual sales in the United States from 38 million gallons in 1980 to
64 million gallons in 1984 and 83 million gallons in 1985." As the
court read the record, moreover, "the merger foreclosed less than 1%
of the market" (id. at A23 (footnote omitted)).  Noting (id. at A20)
that "de minimis foreclosure of a market is not an antitrust
dereliction in itself," the court concluded (id. at A25 (footnote
omitted)) that "because of its de minimis consequences, the DuPont
acquisition and subsequent foreclosure of Conoco purchases from
(petitioners) does not establish a Section 7 violation."

   Having found that petitioners failed to allege antitrust injury
from an antitrust violation, and therefore lacked standing to sue for
damages under Section 4 of the Clayton Act, 15 U.S.C. 15, the court
then rejected petitioners' prayer for injunctive relief under Section
16 of the Act, 15 U.S.C. 26.  The court explained (Pet. App. A26) that
"(f)or the reasons that (petitioners') treble damage claims fail under
Brunswick, summary judgment is appropriate for DuPont on
(petitioners') claims for injunctive relief as well."

   Judge Becker dissented (Pet. App. A27-A45).  Although, in his view,
petitioners' legal theory was "not the most believable story about the
conduct of rational actors in the marketplace" (id. at A28), Judge
Becker concluded that petitioners had adequately alleged that
respondents' decision to terminate Conoco's marketing plans both
eliminated a procompetitive change in the market for methanol and
injured petitioners' business.  In his view (id. at A36-A37 n.6), the
challenged merger was illegal precisely because DuPont discontinued
Conoco's plans and hence, under Brunswick, "(t)he thing which made the
merger illegal is * * * the thing which caused (petitioners') injury."
Judge Becker also took issue (id. at A38-A40) with the court's
disposition of petitioners vertical claim that they had been
foreclosed from making methanol sales to Conoco.  As he understood the
court's decision, the majority's conclusion that the claimed injury
was de minimis was erroneous, because the majority had neglected to
consider the sales that petitioners would have made to Conoco if
Conoco had pursued its marketing plans.  /2/

                              DISCUSSION

   Petitioners, facing the obstacles posed by this Court's decisions
to the standing of a competitor to challenge a merger, have evolved a
set of assumptions (described by Judge Becker as "not the most
believable story" (Pet. App. A28)) under which, they allege, the
DuPont-Conoco merger was both anticompetitive and harmful to them as
competing producers of methanol.  the court of appeals' rejection of
petitioners' theory is correct and does not conflict with any decision
of this Court or of any other court of appeals.  Further review by
this Court is unwarranted.

   1. Petitioners first contend (Pet. 12-20) that the court of appeals
misapplied the Brunswick case in rejecting their "horizontal" claim
that they suffered antitrust injury as a result of the cancellation of
Conoco's plan to enter into production and marketing of methanol.  In
Brunswick, a group of bowling center owners sought damages on account
of the defendant's acquisition of several of their competitors.  The
plaintiffs claimed that they had been injured by the acquisitions
because, absent the acquisitions, the competitors would have gone out
of business.  This Court held that plaintiffs lacked standing to
challenge the acquisition because their complaint was in essence that
they had been deprived of the benefits of decreased competition, a
claim "inimical to the purposes" of the antitrust laws.  429 U.S. at
488.  Noting that "(e)very merger * * * has the potential for
producing economic readjustments that adversely affect some persons"
(id. at 487), and that the antitrust laws "were enacted for 'the
protection of competition, not competitors'" (id. at 488 (emphasis in
original;  citation omitted)), the Court rejected the contention that
every injury "causally linked to an illegal presence in the market"
(id. at 489) is sufficient to support recovery.  Instead, a plaintiff
is required to establish "antitrust injury, which is to say injury of
the type the antitrust laws were intended to prevent and that flows
from that which makes defendants' acts unlawful" (ibid. (emphasis in
original)).  See also Associated Gen. Contractors of California, Inc.
v. California State Council of Carpenters, 459 U.S. 519, 540 (1983);
Blue Shield v. McCready, 457 U.S. 465, 478 (1982).

   The Brunswick case confirms the principle that "Congress did not
intend the antitrust laws to provide a remedy in damages for all
injuries that might conceivably be traced to an antitrust violation."
Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n.14 (1972);  accord
Associated Gen. Contractors, 459 U.S. at 534.  "An antitrust violation
may be expected to cause ripples of harm to flow through the Nation's
economy"' but it is "reasonable to assume that Congress did not intend
to allow every person tangentially affected by an antitrust violation
to maintain an action to recover threefold damages for the injury to
his business or property" (Blue Shield, 457 U.S. at 476-477).  Put
another way, a plaintiff must show more than that he was injured "'by
reason of' the unlawful acquisitions";  he must show that he was
injured "'by reason of' that which made the acquisitions unlawful"
(Brunswick, 429 U.S. at 488).

   While petitioners' claim is more ingenious than the plaintiffs'
claim in Brunswick, it, too, ultimately does not rest on injury "that
flows from that which makes defendants' acts unlawful" (429 U.S. at
489).  In the first place, petitioners do not and cannot complain of
being injured by the elimination of Conoco as a potential competing
producer of methanol.  The court of appeals assumed arguendo, as had
the district court (see Pet. App. B11), that the acquisition violated
Section 7 of the Clayton Act "because it enabled DuPont to bar Conoco
from entering the methanol-producing industry as an independent
competitor" (Pet. App. A13-A14 ( footnote omitted)).  But as the court
of appeals explained (id. at A14 n.4), petitioners "do not, and could
not, complain about the ultimate effect of the merger-the prevention
of a competitor's entry into the market." Petitioners thus do not
allege an injury resulting from the "loss of competition between
DuPont and Conoco after the latter's entry into the market as a
producer" (id. at A14).  /3/

   Instead, petitioners argue that the entry of Conoco into production
would have benefited them because it would have been accompanied by a
program to increase demand that would have raised prices to the
benefit of all producers:  the merger injured them, they say, because
"(t)he elimination of Conoco as a competitor automatically eliminated
the need for, and the ability to accomplish, an increase in demand for
methanol as a fuel" (Pet. 16).  But petitioners have not alleged any
reason why the merger changed the competitive situation so as to make
the alchemy by which Conoco was supposedly planning to increase both
supply and price no longer economically attractive.  As the court of
appeals suggested (Pet. App. A16), if Conoco's plan had made economic
sense immediately before the merger, there is no reason why the merged
company had any less incentive to carry it out.  Conversely, a
decision that the coal gasification project did not make economic
sense could have been made by anyone in charge of Conoco and was not
"inevitably" caused by, and "inextricably intertwined with," the
decision to merge the two companies (Blue Shield, 457 U.S. at 483,
484).  /4/ Petitioners' alleged injuries therefore do not "reflect the
anticompetitive effect * * * of the violation" (Brunswick, 429 U.S. at
489).  Nor do petitioners' injuries "reflect the anticompetitive
effect * * * of anticompetitive acts made possible by the violation"
(Brunswick, 429 U.S. at 489).  Unlike the plaintiff in Blue Shield,
whose damages resulted from an alleged conspiracy to injure
competition in the market for psychological services, petitioners'
injuries stem not from anti-competitive behavior, but only from
respondents' decision not to pursue a program of creating enlarged
demand so they could sell the output of their coal gasification
project.  Even assuming that this program and project would have
managed to benefit both competition and petitioners as a competing
producer, the antitrust laws impose no general duty to promote
competition;  they simply forbid engaging in anti-competitive
activity.  See, e.g., Olympia Equip. Leasing Co. v. Western Union Tel.
Co., 797 F.2d 370, 375-376 (7th Cir. 1986), cert. denied, No. 86-1255
(Mar. 23, 1987);  USM Corp. v. SPS Technologies, Inc., 694 F.2d 505,
512-513 (7th Cir. 1982), cert. denied, 462 U.S. 1107 (1983).  In sum,
petitioners cannot have been injured by the failure of a competitor to
add productive capacity, and they have not shown how any other effect
on them would constitute "antitrust injury" sufficient to give them
standing to object to a merger under Section 7.

   2. Petitioners next contend (Pet. 21-26) that the court of appeals
misapplied this Court's decision in Cargill, Inc. v. Monfort of
Colorado, Inc., No. 85-473 (Dec. 9, 1986), in rejecting their claim
for injunctive relief.  In the Cargill case, the Court held that the
requirement of antitrust injury under Brunswick applies to actions for
injunctive relief under Section 16 of the Clayton Act as well as to
actions for damages under Section 4 of the Act.  As the Court put it,
"in order to seek injunctive relief under Section 16, a private
plaintiff must allege threatened loss or damage 'of the type the
antitrust laws were designed to prevent and that flows from that which
makes defendants' acts unlawful'" (slip op. 9 (quoting Brunswick, 429
U.S. at 489)).  The court below, applying that standard, held that
petitioners' request for injunctive relief fails "(f)or the reasons
that (their) treble damage claims fail under Brunswick" (Pet. App.
A26).  To the extent that petitioners are alleging the same underlying
injury for purposes of both damages and injunctive relief, the court's
decision is obviously correct.

   Petitioners suggest, as an alternative basis for injunctive relief,
that "(i)f Conoco were permitted to become an independent major
methanol producer, the concentration in the methanol industry would be
reduced and DuPont's dominance in the market would be diminished" (Pet
21).  As with the plaintiff in Cargill, however, it is not clear why
petitioners would be injured by increased concentration in the
industry.  To be sure, increased concentration might make it more
likely that firms in the market would be able to charge
supracompetitive prices, and thus threaten "antitrust injury" to
customers.  But no customer felt sufficiently threatened to sue in
this case.  As the court of appeals recognized (Pet. App. A18),
petitioners, unlike methanol customers, would be helped, not hurt, if
prices rose above a competitive level.  The threat (if any) that the
acquisition would lead to supracompetitive pricing was not a threat to
petitioners, which therefore could not assert standing on that basis.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 593
(1986);  see Allen v. Wright, 468 U.S. 737 (1984);  Wrath v. Seldin,
422 U.S. 490 (1975).  Petitioners now suggest (Pet. 21) that, had
Conoco entered the market as an independent producer, DuPont would not
have been able to make "use of threat and intimidation" in an effort
to coerce customers not to purchase methanol from petitioners.
Petitioners made that contention only vaguely in their brief below
(see Appellants Br. 35), and the court of appeals did not address it.
The contention is not properly presented for this Court's review.  See
Youakim v. Miller, 425 U.S. 231, 234 (1976) (per curiam).  /5/

   3. Petitioners assert, finally, that, in rejecting their claim
regarding the foreclosure of future sales to Conoco, the court of
appeals "totally ignored" the contention that Conoco would have made
sizeable purchases from petitioners, had Conoco been permitted to
carry out its plan to stimulate demand (Pet. 26-28).  As a result,
petitioners argue (ibid.), the court below erroneously dismissed their
foreclosure claim as de minimis.  But like Judge Becker in his
dissenting opinion (see Pet. App. A38-A40), petitioners misread the
court's opinion.  The court of appeals specifically considered the
claim that Conoco would have made large purchases from petitioners had
its demand-creation plans been executed (see id. at A13).  It rejected
that claim, however, for the same reasons stated above:  there is no
alleged or plausible explanation of the cancellation that makes it an
anticompetitive effect of the merger (see id. at A13-A19).  It was not
the demand-creation claim that the court of appeals dismissed as "de
minimis".  Rather, the court used that characterization in rejecting
the allegation, not renewed in the petition, that by virtue of
vertical integration, petitioners had been foreclosed from selling
methanol to Conoco for use in its existing chemical plants.  See id.
at A19-A26.  Petitioners do not challenge the conclusion that that
alleged foreclosure-resulting from the vertical integration of DuPont
and Conoco-constituted less than 1% of the merchant market for
methanol (see id. at A22-A23) and, for that reason, was de minimis.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   CHARLES F. RULE

      Assistant Attorney General

   LOUIS R. COHEN

      Deputy Solicitor General

   KENNETH G. STARLING

      Deputy Assistant Attorney General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   JOHN J. POWERS, III

   DAVID SEIDMAN

      Attorneys

   MAY 1988

   /1/ The court also stated that petitioners' allegation-that they
were injured as a result of the decision not to pursue Conoco's
marketing plans-was simply a claim that petitioners had been "denied
sales and profits from an increase in demand-essentially windfall
profits." The court noted that the antitrust laws "do not award
damages or equitable relief for losses stemming from the failure of a
competitor to bring about an increase in demand and price." Pet. App.
A17.

   /2/ Judge Becker briefly considered (Pet. App. A40-A44) the
question whether petitioners could base their claim on an "actual
potential competion" theory-a question that this Court addressed but
did not resolve in United States v. Marine Bancorporation, 418 U.S.
602, 632-633, 639 (1974).  Under that theory, a merger may be declared
unlawful under the Clayton Act where "1. the relevant market is
oligopolistic;  2. absent the acquisition, the acquiring firm would
have entered the market in the near future either de novo or through
acquisition of a little company;  and 3. such entry by the acquiring
firm carried a substantial likelihood of ultimately producing
deconcentration of the market or other significant procompetitive
effects" (Pet. App. A43).  While Judge Becker recognized that the
present case offers a "slightly different" issue-in that the acquired
company, and not the acquirer, was prepared to enter the market prior
to the merger-Judge Becker concluded that there was a sufficient basis
to proceed to trial on that theory.  Since the petition does not
present the question of actual potential competition, and the case was
dismissed on other grounds, there is no reason to consider the actual
potential competition question in this case.

   /3/ Judge Becker assumed that it was the cancellation of the coal
gasification project that made the acquisition illegal (Pet. App. A37
n.6), and he therefore concluded that injuries alleged to result from
the cancellation of the project would flow, in the Brunswick sense,
from that which made the transaction illegal.  But apart from the fact
that petitioners never asserted any such theory of illegality, Judge
Becker's reasoning cannot be right.  A merger's legality depends on
its effect on market structure.  United States v. Philadelphia Nat'l
Bank, 374 U.S. 321, 362 (1963).  While a merger may be unlawful
because the resulting change in market structure increases the
likelihood that industry output will be reduced and prices increased,
legality cannot turn on whether output is actually reduced.  And here,
where a necessary assumption of petitioners' case is that Conoco's
plans would have increased both demand and price, there has been no
plausible suggestion why the change in market structure resulting from
the merger would make termination of the plans to expand output any
more likely.  See not 4, infra.  In any event, petitioners' injury
resulted not from a change in output, but rather from the failure of
demand and price to increase.

   /4/ In fact, cancellation of the demand creation plans is properly
viewed as an action taken by DuPont following the acquisition of
Conoco, rather than as an integral part of the acquisition, because
the reason for the cancellation must have been a business judgment
about the likely profitability of the gasification project, not a
change in conditions brought about by the merger.  Petitioners assume
that the effect of Conoco's plan to increase industry output would be
to increase the demand for and the price of methanol.  If that
assumption were correct, it would be wholly irrational for DuPont to
have cancelled the plan.  Despite Judge Becker's attempt to posit a
"set of facts under which it would make economic sense for DuPont to
behave as (petitioner) alleges it did" (Pet. App. A29), the only
plausible explanation of DuPont's behavior is that DuPont did not
think there would be sufficient additional demand to make the project
worthwhile.  Judge Becker hypothesizes that DuPont may have been
realizing monopoly rents that could fall as a result of increased
competition, despite a higher selling price for methanol (id. at
A29-A30).  But DuPont's methanol profits would not fall on Judge
Beckers's posited facts, except on the further assumption, not made by
Judge Becker, that DuPont's total cost of producing methanol would for
some reason increase by more than its revenues increased.  In short,
an increase in demand that increased the price of methanol would have
benefited DuPont-unless after acquiring Conoco, DuPont discovered that
the Conoco plans were not economically sound.

   /5/ Petitioners' reliance (Pet. 10-11 & n.8) on Cia. Petrolera
Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404 (1st Cir. 1985),
and Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d
1354 (6th Cir.), cert. dismissed, 469 U.S. 1200 (1985), is misplaced.
In Cia. Petrolera, a gasoline wholesaler challenged a merger that it
claimed would increase concentration in the industry and create a
price "squeeze" (754 F.2d at 407).  In Christian Schmidt Brewing, two
brewing companies challenged the merger of two other brewing firms,
alleging that the merger might permit predatory practices.  It is not
at all clear that either of those cases remains good authority after
this Court's decision in Cargill, Inc. v. Monfort of Colorado, Inc.,
No. 85-473 (Dec. 9, 1986).  Moreover, neither case stands for the
proposition that competitors have standing to challenge a merger
regardless of whether they are treatened with antitrust injury (see
Pet. 10-11), for in each case the court found a sufficient allegation
of antitrust injury.