author: Per Curiam. Justice Marshall

text:
    IMMIGRATION AND NATURALIZATION SERVICE v. HECTOR
    No. 86-21.
    Decided November 17, 1986
   Per Curiam.

Virginia Hector, a native and citizen of Dominica, West Indies, entered the United States in April 1975 as a nonimmi-grant visitor for pleasure. She has remained in this country illegally since April 30, 1975, when her authorization to stay expired. The youngest of her four children, a 10-year-old boy, resides with her here; the other three children live with their grandparents in Dominica. In 1983, two of Hector’s nieces, United States citizens aged 10 and 11, came to live with her in order to attend school in what their parents perceived to be a superior educational system. The nieces’ parents continue to reside in Dominica.

The Immigration and Naturalization Service (INS) instituted deportation proceedings against Hector in July 1983. She conceded deportability, but applied for suspension of deportation pursuant to § 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254(a)(1). That section authorizes the Attorney General, in his discretion, to suspend deportation of an illegal alien, and to adjust the alien’s status to that of an alien lawfully admitted for permanent residence, if the deportable alien

“has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of . . . application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”

An Immigration Judge and the Board of Immigration Appeals (Board) found that Hector satisfied the first two statutory elements — continuous physical residence and good moral character — but that she could not demonstrate extreme hardship to herself, or to her “spouse, parent, or child.” With respect to her nieces, the Board determined that, as a factual matter, Hector’s separation from them would not constitute extreme hardship to herself; as a legal matter, the Board concluded that a niece is not a “child” within the meaning of § 244(a)(1).

The Court of Appeals for the Third Circuit granted Hector’s petition for review and remanded the case to the Board. 782 F. 2d 1028 (1986). The court held that the Board had erred in not giving sufficient consideration to whether Hector’s relationship with her nieces was the functional equivalent of a parent-child relationship. The court thus instructed the Board to ascertain whether there was a parental-type relationship, and, if so, to determine whether Hector’s nieces would experience extreme hardship as a result of her deportation.

In so holding, the court relied on its earlier decision in Tovar v. INS, 612 F. 2d 794 (1980), which held that the term “child” as used in § 244(a)(1) includes individuals who do not fit within the statutory definition of “child” set out in § 101(b)(1), 8 U. S. C. § 1101(b)(1), if their relationship with the deportable alien closely resembles that of a parent and child.

Because we find the plain language of the statute so compelling, we reverse, and hold that the Board is not required under § 244(a)(1) to consider the hardship to a third party other than a spouse, parent, or child, as defined by the Act. Congress has specifically identified the relatives whose hardship is to be considered, and then set forth unusually detailed and unyielding provisions defining each class of included relatives. The statutory definition of the term “child” is particularly exhaustive. Hector has never claimed, and the Court of Appeals did not hold, that the two nieces qualify under that statutory definition.

As we have explained with reference to the technical definition of “child” contained within this statute:

“With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to [some] who share strong family ties. . . . But it is clear from our cases . . . that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.” Fiallo v. Bell, 430 U. S. 787, 798 (1977).

Thus, even if Hector’s relationship with her nieces closely resembles a parent-child relationship, we are constrained to hold that Congress, through the plain language of the statute, precluded this functional approach to defining the term “child.” Cf. INS v. Phinpathya, 464 U. S. 183, 194 (1984) (refusing to ignore “the clear congressional mandate and the plain meaning of the statute” where it was clear that “Congress considered the harsh consequences of its actions”). Congress has shown its willingness to 'redefine the term “child” on a number of occasions, but it has not included nieces in that definition or authorized us to adopt a functional definition.

Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Brennan would grant the petition and set the case for oral argument.

Justice Marshall

dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g., Acosta v. Louisiana Dept. of Health and Human Resources, 478 U. S. 251 (1986) (Marshall, J., dissenting).

       The Board found that “[t]he emotional hardship to the respondent due to difficulties encountered by her nieces as a result of her deportation also does not constitute extreme hardship even when combined with the other factors in her case.” App. to Pet. for Cert. 12a. Cf. Contreras-Buenfil v. INS, 712 F. 2d 401, 403 (CA9 1983); Antoine-Dorcelli v. INS, 703 F. 2d 19, 22 (CA1 1983).

       Both the Immigration Judge and the Board had also held, in the alternative, that Hector’s relationship with her nieces was not akin to a mother and daughter relationship, and that, in any event, the nieces would not experience extreme hardship as a result of Hector’s deportation. The Court of Appeals held, however, that the Board had foreclosed presentation of evidence on these issues, and had not meaningfully addressed each relevant factor. App. to Pet. for Cert. 4a. Judge Garth dissented, concluding that the Board has adequately considered Hector’s relationship with her nieces and the hardship issue. Id., at 5a, n. 1.

       The Courts of Appeals have reached varying conclusions on whether hardship to an alien’s relative or loved one who does not qualify under the statute’s technical definitions as a spouse, parent, or child must be independently considered in assessing extreme hardship under § 244(a)(1). As indicated, the Third Circuit has held that the Board must look at the hardship that some third parties would experience, even if they do not qualify under the definitional section of the Act. See Tovar v. INS, 612 F. 2d 794, 797-798 (1980). A number of other Circuits have rejected this flexible approach. See, e. g., Zamora-Garcia v. United States Dept. of Justice INS, 737 F. 2d 488 (CA5 1984); Contreras-Buenfil, supra, at 403.

       The term “parent” is defined in 8 U. S. C. § 1101(b)(2); the term “spouse” is defined in § 1101(a)(35).

       The definitional section provides:
      “(b) As used in in subchapters I and II of this chapter—
      “(1) The term “child” means an unmarried person under twenty-one years of age who is —
      “(A) a legitimate child;
      “(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
      “(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
      “(D) an illegitimate child by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;

        “(E) a child adopted while under the age of sixteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or
      “(F) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child’s proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.” § 1101(b)(1).
      The suspension of deportation provision, § 1254(a), is part of subehapter II; this definition of “child” therefore applies.

       The limiting nature of the plain language is corroborated by the legislative history of both the suspension of deportation provision and the definitional section of the Act.
      With respect to suspension of deportation, the Senate rejected a draft of the bill that focused on the hardship to the “immediate family.” See S. 716, 82d Cong., 1st Sess. (1951). In a prepared analysis of S. 716, the INS expressed concern about this undefined term that the INS considered “obscure, uncertain, and difficult, if not impossible, to administer” since the language could “conceivably be claimed to include any relative of the alien, by blood or marriage, who might be living with him in his household.” 4 INS, Analysis of S. 716, 82d Cong., 1st Sess., 244-2 and 244-3 (1951) (emphasis in original). Instead, the INS asked Congress to list the “particular relatives who are intended to be described.” Id., at 244-3. The bill that was eventually passed contained the “parent, spouse, or child” language that is now in effect.
      The history of the definitional section similarly demonstrates that Congress has been actively engaged in delineating just how broad it wishes the definition of “child” to be. As originally enacted, the statute defined a “child” as an unmarried legitimate or legitimated child or stepchild under 21 years of age. See Fiallo v. Bell, 430 U. S., at 797. Congress has since repeatedly fine-tuned the definition of “child.” There have been no less than four separate amendments, each adding to or refining the definition. See Act of Sept. 11,1957, Pub L. 85-316, §2, 71 Stat. 639; Act of Sept. 26, 1961, Pub. L. 87-301, §§ 1-4, 75 Stat. 650-651; Act of Oct. 3,1965, Pub. L. 89-236, § 8(e), 79 Stat. 917; Act of Dec. 29, 1981, Pub. L. 97-116, 95 Stat. 1611. In light of this history of close congressional attention to this specific issue, we are especially bound to pay heed to the plain mandate of the words Congress has chosen.

       See n. 6, supra. Similarly, Congress has shown that it is willing to correct inequities that might result in our applying the plain language of the suspension of deportation provision. In the recently enacted Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359, Congress explicitly amended the Act to “overrule INS v. Phinpathya, [464 U. S. 183] (1984), which held that any absence, however brief, breaks the continuity of physical presence.” H. R. Rep. No. 99-682, pt. 1, p. 124 (1986).

       Our decision, of course, does not affect the possibility that Hector may be entitled to relief under the amnesty provisions of the newly enacted Immigration Reform and Control Act of 1986, supra.


source: Caselaw Access Project

author: Per Curiam. Justice Marshall Justice Stevens,

license: Public Domain

text:
    CITY OF NEWPORT, KENTUCKY, et al. v. IACOBUCCI, dba TALK OF THE TOWN, et al.
    No. 86-139.
    Decided November 17, 1986
   Per Curiam.

In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell liquor for consumption on the premises. A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam), as being within the State’s broad power under the Twenty-first Amendment to regulate the sale of liquor within its boundaries.

Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U. S. C. § 1983 against its enforcement. The District Court ruled that the ordinance was constitutional, stating that it “is squarely within the doctrine of Bellanca . . . and must be upheld on that basis.” App. to Pet. for Cert. 50a.

A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. 785 F. 2d 1354 (1986). It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth’s Constitution, Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky. Rev. Stat. §§242.010-242.990 (1981 and Supp. 1986). Noting this Court’s statement in Bellanca that “[t]he State’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs,” 452 U. S., at 717, the Court of Appeals’ majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca “doctrine” or “rationale” because the city “cannot exercise in part a power it does not hold in full.” 785 F. 2d, at 1358. The court remanded the case for a determination, among other things, of the city’s authority to enact the ordinance under its police power. The dissenting judge argued that the majority read Bellanca too narrowly, and he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry.

We agree with the dissent’s conclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of the Twenty-first Amendment is certainly not without limit, but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States.

“While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.” California v. LaRue, 409 U. S. 109, 114 (1972).

This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. “In LaRue ... we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program.” Doran v. Salem Inn, Inc., 422 U. S. 922, 932-933 (1975). In Bellanca, the Court upheld a state statute imposing just such a ban.

The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the “doctrine” or “rationale” of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot regulate nude dancing in bars. In holding that a State “has broad power ... to regulate the times, places, and circumstances under which liquor may be sold,” Bellanca, 452 U. S., at 715, this Court has never attached any constitutional significance to a State’s division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit.

There is certainly no constitutional requirement that the same governmental unit must grant liquor licenses, revoke licenses, and regulate the circumstances under which liquor may be sold. Indeed, while Kentucky provides that the question of local prohibition is to be decided by popular election, the parties are in agreement that the city is vested with the power to revoke a liquor license upon a finding of a violation of state law, a state liquor regulation, or a city ordinance. See Brief in Opposition 7. Yet, the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine the manner of regulation. Thus, if respondents were to prevail in their argument that only voters can ban nudity because only voters have the authority to ban the sale of alcohol, it is possible that nude dancing in bars would be immune from any regulation.

The Newport City Commission, in the preamble to the ordinance, determined that nude dancing in establishments serving liquor was “injurious to the citizens” of the city. It found the ordinance necessary to a range of purposes, including “preventing] blight and the deterioration of the City’s neighborhoods” and “decreasing] the incidence of crime, disorderly conduct and juvenile delinquency.” See 785 F. 2d, at 1360. “Given the added presumption in favor of the validity of the . . . regulation in this area that the Twenty-first Amendment requires,” California v. LaRue, 409 U. S., at 118-119, it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude. The fact that the Commonwealth of Kentucky has delegated one portion of its power under the Twenty-first Amendment to the electorate — the power to decide if liquor may be served in local establishments — does not differentiate this case from Bellanca.

The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia would grant the petition for a writ of certiorari and set the case for oral argument.

Justice Marshall

dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g., Acosta v. Louisiana Dept. of Health and Human Resources, 478 U. S. 251 (1986) (Marshall, J., dissenting).

Justice Stevens,

with whom Justice Brennan joins,

dissenting.

As I have previously written, the reasoning in the per curiam summary disposition in New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981), is “blatantly incorrect.” Id., at 725 (Stevens, J., dissenting). Neither the plain language nor a fair construction of the purpose of the Twenty-first Amendment lends any support to the Court’s holding that the Twenty-first Amendment shields restrictions on speech from full First Amendment review. Without repeating what I said in that opinion, I believe it important to highlight some of the fundamental defects in the Court’s analysis.

At one time, not long ago, it was considered elementary that the Twenty-first Amendment merely created an exception to the normal operation of the Commerce Clause. See Craig v. Boren, 429 U. S. 190, 206 (1976). As the Court explained shortly after the Amendment’s passage, the Amendment “sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause.” Ziffrin, Inc v. Reeves, 308 U. S. 132, 138 (1939); see also State Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936).

In Craig the Court flatly rejected the Twenty-first Amendment as a basis for sustaining a state liquor regulation that otherwise violated the Equal Protection Clause. The Court pointed out that, “[a]s one commentator has remarked: ‘Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.’” 429 U. S., at 206 (quoting P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials 258 (1975)); see also Larkin v. Grendel’s Den, Inc., 459 U. S. 116, 122, n. 5 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 178-179 (1972); Wisconsin v. Constantineau, 400 U. S. 433, 436 (1971).

In recent years, however, the Court has completely distorted the Twenty-first Amendment. It now has a barely discernible effect in Commerce Clause cases, see, e. g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573 (1986); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 279 (1984), but, under Bellanca and the Court’s decision today, it may be dispositive in First Amendment cases. This paradox cannot be overstated: reading Bellanca one would have thought that the Court was prepared to recognize some bite in the Twenty-first Amendment. The intervening decisions in Brown-Forman and Bacchus demonstrate, however, that it is toothless except when freedom of speech is involved.

Were this internal inconsistency in interpreting the Twenty-first Amendment the only problem with the Court’s analysis, that would still be enough to call these decisions into question. But the problem is far more severe and dangerous than that. The Court has a duty in this case to “assess the substantiality of the governmental interests asserted [and] determinine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment.” Schad v. Mount Ephraim, 452 U. S. 61, 70 (1981). Shirking this responsibility, the Court instead relies exclusively on the Twenty-first Amendment to sustain a regulation of speech that it assumes, arguendo, would otherwise violate the First Amendment. Through the use of a per curiam summary disposition, the Court concludes that municipal ordinances and state statutes regulating expression in business establishments licensed to sell liquor for consumption on the premises are equally immune from facial challenges predicated on the First Amendment. Unlike its holding in California v. LaRue, 409 U. S. 109 (1972), the Court also concludes that there is no need to consider the substantiality of the evidence supporting the city’s justification for its ordinance; the articulation of a legitimate purpose in the preamble to the ordinance is sufficient. In the words of a student commentator, “one must inquire why the Court [chooses] to go to such extremes to avoid a first amendment analysis.” Recent Developments — Constitutional Law, 19 Vill. L. Rev. 177, 185 (1973).

There are dimensions to this case that the Court’s opinion completely ignores. To begin with, the Newport ordinance is not limited to nude dancing, “gross sexuality,” or barrooms. On the contrary, the ordinance applies to every business establishment that requires a liquor license, and, even then, its prohibition is not limited to nudity or to dancing. The State’s power to regulate the sale of alcoholic beverages extends to a host of business establishments other than ordinary bars. See Ky. Rev. Stat. §243.020(3) (1981). For example, a theater cannot sell champagne during an intermission without a liquor license. It is surely strange to suggest that a dramatic production like “Hair” would lose its First Amendment protection because alcoholic beverages might be served in the lobby during intermission. See California v. LaRue, 409 U. S., at 121 (Douglas, J., dissenting).

Perhaps the Court would disavow its rationale if a city sought to apply its ordinance to the performers in a play like “Hair,” or to a production of “Romeo and Juliet” containing a scene that violates Newport’s ordinance. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). But such a disavowal would, I submit, merely confirm my view that the Twenty-first Amendment really has no bearing whatsoever on the question whether the State’s interest in maintaining order in licensed premises outweighs the interest in free expression that is protected by the First Amendment — whether that interest is asserted by a dancer, an actor, or merely an unpopular customer.

Similarly, I recognize that the Court’s attention in this case is focused on the specter of unregulated nudity, particularly sexually suggestive dancing. But if there is any integrity to the Court’s reasoning on the State’s power under the Twenty-first Amendment, it must also embrace other forms of expressive conduct or attire that might be offensive to the majority, or perhaps likely to stimulate violent reactions, but would nevertheless ordinarily be entitled to First Amendment protection. For example, liquor cannot be sold in an athletic stadium, hotel, restaurant, or sidewalk cafe without a liquor license. According t'o the Court’s rationale any restriction on speech — be it content based or neutral — in any of these places enjoys a presumption of validity. It is a strange doctrine indeed that implies that Paul Robert Cohen had a constitutional right to wear his vulgar jacket in a courtroom, but could be sent to jail for wearing it in Yankee Stadium. See Cohen v. California, 403 U. S. 15 (1971).

Given these concerns, I cannot concur in yet another summary disposition that gives such short shrift to these issues, without even the benefit of briefing on the merits. Bellanca should not be applied, much less extended, without taking cognizance of the intervening decisions that have further limited the effect of the Twenty-first Amendment in other areas. Moreover, I continue to believe that the Court is quite wrong in proceeding as if the Twenty-first Amendment repealed not only the Eighteenth Amendment, but some undefined portion of the First Amendment as well.

I respectfully dissent.

       Newport Ordinance No. 0-82-85, §11, provides:
      “It shall be unlawful for and a person is guilty of performing nude or nearly nude activity when that person appears on a business establishment’s premises in such a manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, or when any female appears on a business establishment’s premises in such manner or attire as to expose to view portion of the breast referred to as the areola, nipple, or simulation thereof.”
      Sections IV and V specify criminal and civil penalties for any violation of the ordinance. A proprietor who knowingly permits the proscribed activity on his premises may have his occupational license and liquor license revoked.
      Ordinance No. 0-82-85 is set forth in its entirety in the appendix to the Court of Appeals’ opinion. See 785 F. 2d 1354, 1360-1362 (CA6 1986).

       The Twenty-first Amendment provides in relevant part: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

       Respondents also challenged a second Newport ordinance, see 785 F. 2d, at 1362-1363, requiring employees of establishments that sell liquor by the drink to register with the Police Department and be fingerprinted. The Court of Appeals upheld the constitutionality of this second ordinance as a valid implementation of the city’s police power. Id., at 1355-1358. That ordinance is not at issue here.

       The Kentucky Constitution, §61, provides:
      “The General Assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquors. All elections on this question may be held on a day other than the regular election days.”

       See, e. g., California v. LaRue, 409 U. S. 109, 120, n. (1972) (Stewart, J., concurring):
      “This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See Wisconsin v. Constantineau, 400 U. S. 433; Hostetter v. Idlewild, Bon Voyage Liquor Corp., 377 U. S. 324, 329-334; Dept. of Revenue v. James Beam Co., 377 U. S. 341.”

       Because it found Bellanca inapplicable, the Court of Appeals did not reach the state-law question of delegation of authority by the Commonwealth to the city of Newport. We express no opinion on this issue.

       The Court fails to explain how its treatment of freedom of speech in New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981), and this case is consistent with its discussion of the Twenty-first Amendment’s lack of effect on the Bill of Rights in Craig v. Boren, 429 U. S. 190 (1976). Nor does the Court mention that in a post-Bellanca decision it unequivocally rejected the notion that a State may “exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment.” Larkin v. Grendel’s Den, Inc., 459 U. S. 116, 122, n. 5 (1982). There was absolutely no discussion of any added presumption of validity in Larkin.

      These vastly different effects that the Court has attributed to the Twenty-first Amendment can surely not be explained as reflecting a difference in the value that is placed on free speech, from that which is placed on the Equal Protection Clause, or the Establishment Clause. In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982), the Court firmly declared that there is no “principled basis on which to create a hierarchy of constitutional values.” Id., at 484. In so stating, the Court declined to afford the Establishment Clause any special respect. Yet today, the Court not only appears to reject the proposition that all constitutional values are equivalent, but actually concludes that some of the other values protected by the First Amendment are at the low end of the sliding scale.

         Bellanca, of course, dealt with the Twenty-first Amendment’s effect on a state statute, not on a municipality’s ordinance. The distinction between States and their subparts is dispositive in some areas of the law. See, e. g., Community Communications Co. v. Boulder, 455 U. S. 40, 48-52 (1982) (antitrust immunity for “state action”); Illinois v. City of Milwaukee, 406 U. S. 91, 93-98 (1972) (Supreme Court’s original jurisdiction); Lincoln County v. Luning, 133 U. S. 529 (1890) (Eleventh Amendment). Of course, in some other areas, a municipality is equated with the State. See, e. g., Waller v. Florida, 397 U. S. 387 (1970) (double jeopardy); Avery v. Midland County, 390 U. S. 474, 480 (1968) (Fourteenth Amendment).
      These cases demonstrate that the “particular factual and legal context is all important” in determining whether the state-municipality distinction is relevant. Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 430, n. 7 (1978) (Stewart, J., dissenting). Today, however, for the first time in the Twenty-first Amendment’s history, the Court holds that it applies equally to municipalities. Until now, the Court had twice been faced with cases involving delegation of a State’s Twenty-first Amendment authority, and it reserved passing on the delegation question in both cases. See Grendel’s Den, 459 U. S., at 122; Doran v. Salem Inn, Inc., 422 U. S. 922, 933 (1975). I certainly would have thought that this question merits some analysis, even if it does not, in the Court’s view, merit more than a per curiam summary reversal.

       In LaRue, California’s Department of Alcoholic Beverage Control had held hearings on the problems that had become associated with nude dancing. Witnesses included representatives of law enforcement agencies, counsel, and owners of licensed premises, and Department investigators. 409 U. S., at 111. The evidence demonstrated that a wide range of illegal conduct, including juvenile prostitution, indecent exposure to young girls, rapes, and assault on police officers, was taking place in and around the nude dancing establishments. Ibid. The Court’s decision to uphold the regulation was thus grounded in “the evidence from the hearings that [the Department] cited to the District Court.” Id., at 115. See also Schad v. Mount Ephraim, 452 U. S. 61, 69-73 (1981) (refusing to uphold infringement of First Amendment rights where the State did not present actual evidence to support its purported justifications for the statute). This case stands in striking contrast; the Court of Appeals stated that “no substantive evidence concerning the government’s justifications for the ordinance was presented” to the District Court. 785 F. 2d 1354, 1359 (1986).

       This is not to say that an ordinance limited to barrooms would necessarily be valid. As I suggested in Bellanca, 452 U. S., at 723, n. 10, a barroom might be the most appropriate forum for this type of entertainment since the patrons of such establishments generally know what to expect when they enter and they are free to leave if they disapprove of what they see or hear. Cf. Splawn v. California, 431 U. S. 595, 604 (1977) (Stevens, J., dissenting) (bookstore’s advertisement that it sold sexually provocative material put uninterested passersby on notice). This case is wholly unlike those in which we have recognized the legitimate interest in keeping pigs out of the parlor. Cf. FCC v. Pacifica Foundation, 438 U. S. 726, 750 (1978). As long as people who like pigs keep them in secluded barnyards, they do not offend the sensibilities of the general public.

       The ordinance makes it a crime for any female to appear on a licensed business establishment’s premises “in such manner or attire as to expose to view portion of the breast referred to as the areola, nipple, or simulation thereof.”

       It is of no consolation that the bar owner can retain nude dancing as long as he forgoes his liquor license, or that a theater may run a production with some nudity as long as it does the same. See California v. LaRue, 409 U. S., at 136-137 (MARSHALL, J., dissenting). Even 23 years ago it was “too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert v. Verner, 374 U. S. 398, 404 (1963); see generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).

       One of the anomalies of the Court’s approach is that Newport’s ordinance would presumably be subject to vastly different scrutiny were a bar owner to sell only liquor that is produced within the State. Since the Twenty-first Amendment deals only with a State’s power to regulate “transportation or importation into” the State, it would have no effect on a Kentucky bar selling Kentucky bourbon. In such a case, the full force of the First Amendment would apply.

       Notwithstanding the Court’s broad pronouncements on the omnipotence of the Twenty-first Amendment, I would hope that it would still “be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide.” Bellanca v. New York State Liquor Authority, 50 N. Y. 2d 524, 531, n. 7, 407 N. E. 2d 460, 464, n. 7 (1980).

       See n. 2, supra.


author: Justice Brennan Justice Stevens,

text:
    CARGILL, INC., et al. v. MONFORT OF COLORADO, INC.
    No. 85-473.
    Argued October 6, 1986
    Decided December 9, 1986

      BRENNAN, J., delivered the opinion of the Court, in which Rehnquist, C. J., and MARSHALL, Powell, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which White, J., joined, post, p. 122. Blackmun, J., took no part in the consideration or decision of the case.

      Ronald G. Carr argued the cause for petitioners. With him on the briefs were Robert F. Hanley, Alan K. Palmer, and Phillip Areeda.

      Deputy Solicitor General Cohen argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Ginsburg, Deputy Assistant Attorney General Cannon, Jerrold J. Ganzfried, Catherine G. O’Sullivan, Andrea Limmer, and Marcy J. K. Tiffany.

      William C. McClearn argued the cause for respondent. With him on the brief were James E. Hartley, Elizabeth A. Phelan, and Marcy G. Glenn

        Thomas B. Leary filed a brief for the Business Roundtable as amicus curiae urging reversal.

        David L. Foster and Kim Sperduto filed a brief for Royal Crown Cola Co. as amicus curiae.

   Justice Brennan

delivered the opinion of the Court.

Under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U. S. C. § 26, private parties “threatened [with] loss or damage by a violation of the antitrust laws” may seek injunctive relief. This case presents two questions: whether a plaintiff seeking relief under § 16 must prove a threat of antitrust injury, and, if so, whether loss or damage due to increased competition constitutes such injury.

f — I

Respondent Monfort of Colorado, Inc. (Monfort), the plaintiff below, owns and operates three integrated beef-packing plants, that is, plants for both the slaughter of cattle and the fabrication of beef. Monfort operates in both the market for fed cattle (the input market) and the market for fabricated beef (the output market). These markets are highly competitive, and the profit margins of the major beef packers are low. The current markets are a product of two decades of intense competition, during which time packers with modern integrated plants have gradually displaced packers with separate slaughter and fabrication plants.

Monfort is the country’s fifth-largest beef packer. Petitioner Excel Corporation (Excel), one of the two defendants below, is the second-largest packer. Excel operates five integrated plants and one fabrication plant. It is a wholly owned subsidiary of Cargill, Inc., the other defendant below, a large privately owned corporation with more than 150 subsidiaries in at least 35 countries.

On June 17, 1983, Excel signed an agreement to acquire the third-largest packer in the market, Spencer Beef, a division of the Land O’Lakes agricultural cooperative. Spencer Beef owned two integrated plants and one slaughtering plant. After the acquisition, Excel would still be the second-largest packer, but would command a market share almost equal to that of the largest packer, IBP, Inc. (IBP).

Monfort brought an action under § 16 of the Clayton Act, 15 U. S. C. §26, to enjoin the prospective merger. Its complaint alleged that the acquisition would “violat[e] Section 7 of the Clayton Act because the effect of the proposed acquisition may be substantially to lessen competition or tend to create a monopoly in several different ways . . . .” 1 App. 19. Monfort described the injury that it allegedly would suffer in this way:

“(f) Impairment of plaintiff’s ability to compete. The proposed acquisition will result in a concentration of economic power in the relevant markets which threatens Monfort’s supply of fed cattle and its ability to compete in the boxed beef market.” Id., at 20.

Upon agreement of the parties, the District Court consolidated the motion for a preliminary injunction with a full trial on the merits. On the second day of trial, Excel moved for involuntary dismissal on the ground, inter alia, that Monfort had failed to allege or show that it would suffer antitrust injury as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977). The District Court denied the motion. After the trial, the court entered a memorandum opinion and order enjoining the proposed merger. The court held that Monfort’s allegation of “price-cost ‘squeeze’ ” that would “severely narro[w]” Monfort’s profit margins constituted an allegation of antitrust injury. 591 F. Supp. 683, 691-692 (Colo. 1983). It also held that Monfort had shown that the proposed merger would cause this profit squeeze to occur, and that the merger violated § 7 of the Clayton Act. Id., at 709-710.

On appeal, Excel argued that an allegation of lost profits due to a “price-cost squeeze” was nothing more than an allegation of losses due to vigorous competition, and that losses from competition do not constitute antitrust injury. It also argued that the District Court erred in analyzing the facts relevant to the § 7 inquiry. The Court of Appeals affirmed the judgment in all respects. It held that Morifort’s allegation of a “price-cost squeeze” was not simply an allegation of injury from competition; in its view, the alleged “price-cost squeeze” was a claim that Monfort would be injured by what the Court of Appeals “consider[ed] to be a form of predatory pricing in which Excel will drive other companies out of the market by paying more to its cattle suppliers and charging less for boxed beef that it sells to institutional buyers and consumers.” 761 F. 2d 570, 575 (CA10 1985). On the §7 issue, the Court of Appeals held that the District Court’s decision was not clearly erroneous. We granted certiorari, 474 U. S. 1049 (1985).

hH

This case requires us to decide, at the outset, a question we have not previously addressed: whether a private plaintiff seeking an injunction under §16 of the Clayton Act must show a threat of antitrust injury. To decide the question, we must look first to the source of the antitrust injury requirement, which lies in a related provision of the Clayton Act, §4, 15 U. S. C. §15.

Like § 16, § 4 provides a vehicle for private enforcement of the antitrust laws. Under § 4, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . , and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, we held that plaintiffs seeking treble damages under § 4 must show more than simply an “injury causally linked” to a particular merger; instead, “plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants’ acts unlawful.” Id., at 489 (emphasis in original). The plaintiffs in Brunswick did not prove such injury. The plaintiffs were 3 of the 10 bowling centers owned by a relatively small bowling chain. The defendant, one of the two largest bowling chains in the country, acquired several bowling centers located in the plaintiffs’ market that would have gone out of business but for the acquisition. The plaintiffs sought treble damages under § 4, alleging as injury “the loss of income that would have accrued had the acquired centers gone bankrupt” and had competition in their markets consequently been reduced. Id., at 487. We held that this injury, although causally related to a merger alleged to violate §7, was not an antitrust injury, since “[i]t is inimical to [the antitrust] laws to award damages” for losses stemming from continued competition. Id., at 488. This reasoning in Brunswick was consistent with the principle that “the antitrust laws . . . were enacted for ‘the protection of competition, not competitors.’” Ibid., quoting Brown Shoe Co. v. United States, 370 U. S. 294, 320 (1962) (emphasis in original).

Subsequent decisions confirmed the importance of showing antitrust injury under § 4. In Blue Shield of Virginia v. McCready, 457 U. S. 465 (1982), we found that a health-plan subscriber suffered antitrust injury as a result of the plan’s “purposefully anticompetitive scheme” to reduce competition for psychotherapeutic services by reimbursing subscribers for services provided by psychiatrists but not for services provided by psychologists. Id., at 483. We noted that antitrust injury, “as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under §4,” id., at 483, n. 19, and found it “plain that McCready’s injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws.” Id., at 483. Similarly, in Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519 (1983), we applied “the Brunswick test,” and found that the petitioner had failed to allege antitrust injury. Id., at 539-540.

Section 16 of the Clayton Act provides in part that “[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief. . . against threatened loss or damage by a violation of the antitrust laws . . . .” 15 U. S. C. § 26. It is plain that § 16 and § 4 do differ in various ways. For example, § 4 requires a plaintiff to show actual injury, but § 16 requires a showing only of “threatened” loss or damage; similarly, §4 requires a showing of injury to “business or property,” cf. Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), while § 16 contains no such limitation. Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both § 16 and § 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent. We agree.

The wording concerning the relationship of the injury to the violation of the antitrust laws in each section is comparable. Section 4 requires proof of injury “by reason of anything forbidden in the antitrust laws”; § 16 requires proof of “threatened loss or damage by a violation of the antitrust laws.” It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred.

There is no indication that Congress intended such a result. Indeed, the legislative history of § 16 is consistent with the view that § 16 affords private plaintiffs injunctive relief only for those injuries cognizable under §4. According to the House Report:

“Under section 7 of the act of July 2, 1890 [revised and incorporated into Clayton Act as § 4], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law.” H. R. Rep. No. 627, 63d Cong., 2d Sess., pt. 1, p. 21 (1914) (emphasis added).

Sections 4 and 16 are thus best understood as providing complementary remedies for a single set of injuries. Accordingly, we conclude that in order to seek injunctive relief under § 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.” Brunswick, 429 U. S., at 489. We therefore turn to the question whether the proposed merger in this case threatened respondent with antitrust injury.

Ill

Initially, we confront the problem of determining what Monfort alleged the source of its injury to be. Monfort’s complaint is of little assistance in this regard, since the injury alleged therein — “an impairment of plaintiff’s ability to compete” — is alleged to result from “a concentration of economic power.” 1 App. 19. The pretrial order largely restates these general allegations. Record 37. At trial, however, Monfort did present testimony and other evidence that helped define the threatened loss. Monfort alleged that after the merger, Excel would attempt to increase its market share at the expense of smaller rivals, such as Monfort. To that end, Monfort claimed, Excel would bid up the price it would pay for cattle, and reduce the price at which it sold boxed beef. Although such a strategy, which Monfort labeled a “price-cost squeeze,” would reduce Excel’s profits, Excel’s parent corporation had the financial reserves to enable Excel to pursue such a strategy. Eventually, according to Monfort, smaller competitors lacking significant reserves and unable to match Excel’s prices would be driven from the market; at this point Excel would raise the price of its boxed beef to supracompetitive levels, and would more than recoup the profits it lost during the initial phase. 591 F. Supp., at 691-692.

From this scenario two theories of injury to Monfort emerge: (1) a threat of a loss of profits stemming from the possibility that Excel, after the merger, would lower its prices to a level at or only slightly above its costs; (2) a threat of being driven out of business by the possibility that Excel, after the merger, would lower its prices to a level below its costs. We discuss each theory in turn.

A

Monfort’s first claim is that after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share. Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 App. 74-75, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business. The question is whether Monfort’s loss of profits in such circumstances constitutes antitrust injury.

To resolve the question, we look again to Brunswick v. Pueblo Bowl-O-Mat, supra. In Brunswick, we evaluated the antitrust significance of several competitors’ loss of profits resulting from the entry of a large firm into its market. We concluded:

“[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for ‘the protection of competition, not competitors,’ Brown Shoe Co. v. United States, 370 U. S., at 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here A Id., at 488.

The loss of profits to the competitors in Brunswick was not of concern under the antitrust laws, since it resulted only from continued competition. Respondent argues that the losses in Brunswick can be distinguished from the losses alleged here, since the latter will result from an increase, rather than from a mere continuation, of competition. The range of actions unlawful under § 7 of the Clayton Act is broad enough, respondent claims, to support a finding of antitrust injury whenever a competitor is faced with a threat of losses from increased competition. We find respondent’s proposed construction of § 7 too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for "[i]t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition.” Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1057 (CA6), cert. denied, 469 U. S. 1036 (1984). The logic of Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.

B

The second theory of injury argued here is that after the merger Excel would attempt to drive Monfort out of business by engaging in sustained predatory pricing. Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short ran and reducing competition in the long ran. It is a practice that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice “inimical to the purposes of [the antitrust] laws,” Brunswick, 429 U. S., at 488, and one capable of inflicting antitrust injury.

The Court of Appeals held that Monfort had alleged “what we consider to be a form of predatory pricing . . . .” 761 F. 2d, at 575. The court also found that Monfort “could only be harmed by sustained predatory pricing,” and that “it is impossible to tell in advance of the aquisition” whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id., at 576.

Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort’s allegation of losses from the above-cost “price-cost squeeze” was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court’s judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra.

Second, the Court of Appeals can be understood to mean that Monfort had shown a credible threat of injury from below-cost pricing. To the extent the judgment rests on this ground, however, it must also be reversed, because Monfort did not allege injury from below-cost pricing before the District Court. The District Court twice noted that Monfort had made no assertion that Excel would engage in predatory pricing. See 591 F. Supp., at 691 (“Plaintiff does not contend that predatory practices would be engaged in by Excel or IBP”); id., at 710 (“Monfort does not allege that IBP and Excel will in fact engage in predatory activities as part of the cost-price squeeze”). Monfort argues that there is evidence in the record to support its view that it did raise a claim of predatory pricing below. This evidence, however, consists only of four passing references, three in deposition testimony, to the possibility that Excel’s prices might dip below costs. See 1 App. 276; 2 App. 626, 666, 669. Such references fall far short of establishing an allegation of injury from predatory pricing. We conclude that Monfort neither raised nor proved any claim of predatory pricing before the District Court.

IV

In its amicus brief, the United States argues that the “danger of allowing a competitor to challenge an acquisition on the basis of necessarily speculative claims of post-acquisition predatory pricing far outweighs the danger that any anticompetitive merger will go unchallenged.” Brief for United States as Amicus Curiae 25. On this basis, the United States invites the Court to adopt in effect a per se rule “denying competitors standing to challenge acquisitions on the basis of predatory pricing theories.” Id., at 10.

We decline the invitation. As the foregoing discussion makes plain, supra, at 117-118, predatory pricing is an anti-competitive practice forbidden by the antitrust laws. While firms may engage in the practice only infrequently, there is ample evidence suggesting that the practice does occur. It would be novel indeed for a court to deny standing to a party seeking an injunction against threatened injury merely because such injuries rarely occur. In any case, nothing in the language or legislative history of the Clayton Act suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing.

y

We hold that a plaintiff seeking injunctive relief under § 16 of the Clayton Act must show a threat of antitrust injury, and that a showing of loss or damage due merely to increased competition does not constitute such injury. The record below does not support a finding of antitrust injury, but only of threatened loss from increased competition. Because respondent has therefore failed to make the showing § 16 requires, we need not reach the question whether the proposed merger violates § 7. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun took no part in the consideration or decision of this case.

Justice Stevens,

with whom Justice White joins, dissenting.

This case presents the question whether the antitrust laws provide a remedy for a private party that challenges a horizontal merger between two of its largest competitors. The issue may be approached along two fundamentally different paths. First, the Court might focus its attention entirely on the postmerger conduct of the merging firms and deny relief unless the plaintiff can prove a violation of the Sherman Act. Second, the Court might concentrate on the merger itself and grant relief if there is a significant probability that the merger will adversely affect competition in the market in which the plaintiff must compete. Today the Court takes a step down the former path;1 believe that Congress has directed us to follow the latter path.

In this case, one of the major firms in the beef-packing market has proved to the satisfaction of the District Court, 591 F. Supp. 683, 709-710 (Colo. 1983), and the Court of Appeals, 761 F. 2d 570, 578-582 (CA10 1985), that the merger between Excel and Spencer Beef is illegal. This Court holds, however, that the merger should not be set aside because the adverse impact of the merger on respondent’s profit margins does not constitute the kind of “antitrust injury” that the Court described in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977). As I shall demonstrate, Brunswick merely rejected a “novel damages theory,” id., at 490; the Court’s implicit determination that Brunswick forecloses the appropriate line of inquiry in this quite different case is therefore misguided. In my view, a competitor in Monfort’s position has standing to seek an injunction against the merger. Because Monfort must compete in the relevant market, proof establishing that the merger will have a sufficient probability of an adverse effect on competition to violate §7 is also sufficient to authorize equitable relief.

I

Section 7 of the Clayton Act was enacted in 1914, 38 Stat. 731, and expanded in 1950, 64 Stat. 1125, because Congress concluded that the Sherman Act’s prohibition against mergers was not adequate. The Clayton Act, unlike the Sherman Act, proscribes certain combinations of competitors that do not produce any actual injury, either to competitors or to competition. An acquisition is prohibited by § 7 if “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” 15 U. S. C. § 18. The legislative history teaches us that this delphic language was designed “to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding.” S. Rep. No. 1775, 81st Cong., 2d Sess., 4-5 (1950). In Brunswick, supra, this Court recognized that § 7 is “a prophylactic measure, intended ‘primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil . . . 429 U. S., at 485 (quoting United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 597 (1957)).

The 1950 amendment to §7 was particularly concerned with the problem created by a merger which, when viewed by itself, would appear completely harmless, but when considered in its historical setting might be dangerous to competition. As Justice Stewart explained:

“The principal danger against which the 1950 amendment was addressed was the erosion of competition through the cumulative centripetal effect of acquisitions by large corporations, none of which by itself might be sufficient to constitute a violation of the Sherman Act. Congress’ immediate fear was that of large corporations buying out small companies. A major aspect of that fear was the perceived trend toward absentee ownership of local business. Another, more generalized, congressional purpose revealed by the legislative history was to protect small businessmen and to stem the rising tide of concentration in the economy. These goals, Congress thought, could be achieved by ‘arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency.’ Brown Shoe Co. v. United States, [370 U. S.,] at 317.” United States v. Von’s Grocery Co., 384 U. S. 270, 283-284 (1966) (dissenting).

Thus, a merger may violate § 7 of the Clayton Act merely because it poses a serious threat to competition and even though the evidence falls short of proving the kind of actual restraint that violates the Sherman Act, 15 U. S. C. §1. The language of § 16 of the Clayton Act also reflects Congress’ emphasis on probable harm rather than actual harm. Section 16 authorizes private parties to obtain injunctive relief “against threatened loss or damage” by a violation of § 7. The broad scope of the language in both § 7 and § 16 identifies the appropriate standing requirements for injunctive relief. As the Court has squarely held, it is the threat of harm, not actual injury, that justifies equitable relief:

“The evident premise for striking [the injunction at issue] was that Zenith’s failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 16 U. S. C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130 (1969) (citations omitted).

Judged by these standards, respondent’s showing that it faced the threat of loss from an impending antitrust violation clearly conferred standing to obtain injunctive relief. Respondent alleged, and in the opinion of the courts below proved, the injuries it would suffer from a violation of § 7:

“Competition in the markets for the procurement of fed cattle and the sale of boxed beef will be substantially lessened and a monopoly may tend to be created in violation of Section 7 of the Clayton Act;
“Concentration in those lines of commerce will be increased and the tendency towards concentration will be accelerated.” 1 App. 21.

More generally, given the statutory purposes to protect small businesses and to stem the rising tide of concentration in particular markets, a competitor trying to stay in business in a changing market must have standing to ask a court to set aside a merger that has changed the character of the market in an illegal way. Certainly the businesses — small or large— that must face competition in a market altered by an illegal merger are directly affected by that transaction. Their inability to prove exactly how or why they may be harmed does not place them outside the circle of interested parties whom the statute was enacted to protect.

II

Virtually ignoring the language and history of § 7 of the Clayton Act and the broad scope of the Act’s provision for injunctive relief, the Court bases its decision entirely on a case construing the “private damages action provisions” of the Act. Brunswick, 429 U. S., at 478. In Brunswick, we began our analysis by acknowledging the difficulty of meshing §7, “a statutory prohibition against acts that have a potential to cause certain harms,” with § 4, a “damages action intended to remedy those harms.” Id., at 486. We concluded that a plaintiff must prove more than a violation of § 7 to recover damages, “since such proof establishes only that injury may result.” Ibid. Beyond the special nature of an action for treble damages, § 16 differs from § 4 because by its terms it requires only that the antitrust violation threaten the plaintiff with loss or damage, not that the violation cause the plaintiff actual “injur[y] in his business or property.” 15 U. S. C. §15.

In the Brunswick case, the Court set aside a damages award that was based on the estimated additional profits that the plaintiff would have earned if competing bowling alleys had gone out of business instead of being acquired by the defendant. We concluded “that the loss of windfall profits that would have accrued had the acquired centers failed” was not the kind of actual injury for which damages could be recovered under §4. 429 U. S., at 488. That injury “did not occur ‘by reason of’ that which made the acquisitions unlawful.” Ibid.

In contrast, in this case it is the threatened harm — to both competition and to the competitors in the relevant market— that makes the acquisition unlawful under § 7. The Court’s construction of the language of § 4 in Brunswick is plainly not controlling in this case. The concept of “antitrust injury,” which is at the heart of the treble-damages action, is simply not an element of a cause of action for injunctive relief that depends on finding a reasonable threat that an incipient disease will poison an entire market.

A competitor plaintiff who has proved a violation of § 7, as the Brunswick Court recognized, has established that injury may result. This showing satisfies the language of § 16 provided that the plaintiff can show that injury may result to him. When the proof discloses a reasonable probability that competition will be harmed as a result of a merger, I would also conclude that there is a reasonable probability that a competitor of the merging firms will suffer some corresponding harm in due course. In my opinion, that reasonable probability gives the competitor an interest in the proceeding adequate to confer standing to challenge the merger. To hold otherwise is to frustrate § 7 and to read § 16 far too restrictively.

It would be a strange antitrust statute indeed which defined a violation enforceable by no private party. Effective enforcement of the antitrust laws has always depended largely on the work of private attorney generals, for whom Congress made special provision in the Clayton Act itself. As recently as 1976, Congress specifically indicated its intent to encourage private enforcement of § 16 by authorizing recovery of a reasonable attorney’s fee by a plaintiff in an action for injunctive relief. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1396 (amending 15 U. S. C. § 26).

The Court misunderstands the message that Congress conveyed in 1914 and emphasized in 1950. If, as the District Court and the Court of Appeals held, the merger is illegal, it should be set aside. I respectfully dissent.

       As the District Court explained, “ ‘[f]abrication’ is the process whereby the carcass is broken down into either whole cuts (referred to as ‘primáis’, ‘subprimals’ and ‘portions’) or ground beef.” 591 F. Supp. 683, 690 (Colo. 1983). Whole cuts that are then vacuum packed before shipment are called “boxed beef”; the District Court found that “80% of all beef received at the retail supermarket level and at the hotel, restaurant, and institutional (‘HRI’) level” is boxed beef. Ibid.

       The District Court relied on the testimony of one of Monfort’s witnesses in determining market share. Id., at 706-707. According to this testimony, Monfort’s share of the cattle slaughter market was 5.5%, Excel’s share was 13.3%, and IBP’s was 24.4%. 1 App. 69. Monfort’s share of the production market was 5.7%, Excel’s share was 14.1%, and IBP’s share was 27.3%. Id., at 64. After the merger, Excel’s share of each market would increase to 20.4%. Id., at 64, 69; 761 F. 2d 570, 577 (CA10 1985).

       Section 16 states:
      “Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13,14,18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of subtitle IV of title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney’s fee, to such plaintiff.” 15 U. S. C. §26.

       Section 7 prohibits mergers when the “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly,” 15 U. S. C. § 18.

       A showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4, because a party may have suffered antitrust injury but may not be a proper plaintiff under § 4 for other reasons. See generally Page, The Scope of Liability for Antitrust Violations, 37 Stan. L. Rev. 1445, 1483-1485 (1985) (distinguishing concepts of antitrust injury and antitrust standing). Thus, in Associated General Contractors we considered other factors in addition to antitrust injury to determine whether the petitioner was a proper plaintiff under § 4. 459 U. S., at 540. As we explain, n. 6, infra, however, many of these other factors are not relevant to the standing inquiry under § 16.

       Standing analysis under § 16 will not always be identical to standing analysis under § 4. For example, the difference in the remedy each section provides means that certain considerations relevant to a determination of standing under § 4 are not relevant under § 16. The treble-damages remedy, if afforded to “every person tangentially affected by an antitrust violation,” Blue Shield of Virginia v. McCready, 457 U. S. 465, 476-477 (1982), or for “all injuries that might conceivably be traced to an antitrust violation,” Hawaii v. Standard Oil Co., 405 U. S., at 263, n. 14, would “open the door to duplicative recoveries,” id., at 264, and to multiple lawsuits. In order to protect against multiple lawsuits and duplicative recoveries, courts should examine other factors in addition to antitrust injury, such as the potential for duplicative recovery, the complexity of apportioning damages, and the existence of other parties that have been more directly harmed, to determine whether a party is a proper plaintiff under § 4. See Associated General Contractors, 459 U. S., at 544-545; Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977). Conversely, under § 16, the only remedy available is equitable in nature, and, as we recognized in Hawaii v. Standard Oil Co., “the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one.” 405 U. S., at 261. Thus, because standing under § 16 raises no threat of multiple lawsuits or duplicative recoveries, some of the factors other than antitrust injury that are appropriate to a determination of standing under § 4 are not relevant under § 16.

       See Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F. 2d 1325, 1334 (CA7 1986); Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F. 2d 444, 452-453 (CA8 1985), cert. denied, 476 U. S. 1163 (1986); Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F. 2d 1354, 1358 (CA6), cert. dism’d, 469 U. S. 1200 (1985); Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F. 2d 205, 210-211 (CA3 1980).

       See also S. Rep. No. 698, 63d Cong., 2d Sess., pt. 2, pp. 17-18, 50 (1914). Although the references to § 16 in the debates on the passage of the Clayton Act are scarce, those that were made are consistent with the House and Senate Reports. For example, in this excerpt from a provision-by-provision description of the bill, Representative McGillicuddy (a member of the House Judiciary Committee) stated:
      “Under the present law any person injured in his business or property by acts in violation of the Sherman antitrust law may recover his damage. In fact, under the provisions of the law he is entitled to recover threefold damage whenever he is able to prove his case. There is no provision under the present law, however, to prevent threatened loss or damage even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights?
      “The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that ivill cause such loss or damage. Under this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy. Thus the bill not only protects the individual from loss or damage, but it relieves- him of the tremendous burden of long and expensive litigation, often intolerable.” 51 Cong. Rec, 9261 (1914) (emphasis added).
      Representative Floyd described the nature of the § 16 remedy in these terms:
      “In section 16 ... is a provision that gives the litigant injured in his business an entirely new remedy.

      “. . . [Sjection 16 gives any individual, company, or corporation ... or combination the right to go into court and enjoin the doing of these unlawful acts, instead of having to wait until the act is done and the business destroyed and then sue for damages. . . . [Sjo that if a man is injured by a discriminatory contract, by a tying contract, by the unlawful acquisition of stock of competing corporations, or by reason of someone acting unlawfully as a director in two banks or other corporations, he can go into court and enjoin and restrain the party from committing such unlawful acts.” Id., at 16319.

       In its brief, Monfort also argues that it would be injured by “the trend toward oligopoly pricing” that could conceivably follow the merger. Brief for Respondent 18-20. There is no indication in the record that this claim was raised below, however, and so we do not address it here.

       In this case, Monfort has conceded that its viability would not be threatened by Excel’s decision to lower prices: “Because Monfort’s operations were as efficient as those of Excel, only below-cost pricing could remove Monfort as an obstacle.” Id,., at 11-12; see also id., at 5, and n. 6 (“Monfort proved it was just as efficient as Excel”); id., at 18; 761 F. 2d, at 576 (“Monfort would only be harmed by sustained predatory pricing”).

       Respondent finds support in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 for the view that Congress intends the courts to apply § 7 so as to protect the viability of small competitors. The Senate Report, for example, cites with approval this Court’s statement in United States v. Von’s Grocery Co., 384 U. S. 270, 275 (1966), that “the basic purpose of the 1950 Celler-Kefauver Act [amending § 7 of the Clayton Act] was to prevent economic concentration in the American economy by keeping a large number of small competitors in business.” S. Rep. No. 94-803, p. 63 (1976). Even if respondent is correct that Congress intended the courts to apply § 7 so as to keep small competitors in business at the expense of efficiency, a proposition about which there is considerable disagreement, such congressional intent is of no use to Monfort, which has conceded that it will suffer only a loss of profits, and not be driven from the market, should Excel engage in a cost-price squeeze. See n. 10, supra.

       Most commentators reserve the term predatory pricing for pricing below some measure of cost, although they differ on the appropriate measure. See, e. g., Areeda & Turner, Predatory Pricing and Related Practices under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ. 289 (1980) (reviewing various proposed definitions). No consensus has yet been reached on the proper definition of predatory pricing in the antitrust context, however. For purposes of decision in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), for example, we defined predatory pricing as either “(i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost.” Id., at 585, n. 8. Definitions of predatory pricing also vary among the Circuits. Compare Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1056-1057 (CA6) (pricing below marginal or average variable cost presumptively illegal, pricing above such cost presumptively legal), cert. denied, 469 U. S. 1036 (1984), with Transamerica Computer Co. v. International Business Machines Corp., 698 F. 2d 1377 (CA9) (pricing above average total costs may be deemed predatory upon showing of predatory intent), cert. denied, 464 U. S. 955 (1983).
      Although neither the District Court nor the Court of Appeals explicitly defined the term predatory pricing, their use of the term is consistent with a definition of pricing below cost. Such a definition is sufficient for purposes of this decision, because only below-cost pricing would threaten to drive Monfort from the market, see n. 9, supra, and because Monfort made no allegation that Excel would act with predatory intent. Thus, in this case, as in Matsushita Electric Industrial Co. v. Zenith Radio Corp., supra, we find it unnecessary to “consider whether recovery should ever be available . . . when the pricing in question is above some measure of mere-mental cost,” 475 U. S., at 585, n. 9, or whether above-cost pricing coupled with predatory intent is ever sufficient to state a claim of predation. See n. 11, supra.

       See also Brunswick, 429 U. S., at 489, n. 14 (“The short-term effect of certain anticompetitive behavior — predatory below-cost pricing, for example-may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened”).

       The Court of Appeals may have relied on the District Court’s speculation that the merger raised “a distinct possibility. . . of predatory pricing.” 591 F. Supp., at 710. This statement directly followed the District Court’s second observation that Monfort did not raise such a claim, however, and thus was clearly dicta.

       Even had Monfort actually advanced a claim of predatory pricing, we doubt whether the facts as found by the District Court would have supported it. Although Excel may have had the financial resources to absorb losses over an extended period, other factors, such as Excel’s share of market capacity and the barriers to entry after competitors have been driven from the market, must also be considered.
      In order to succeed in a sustained campaign of predatory pricing, a predator must be able to absorb the market shares of its rivals once prices have been cut. If it cannot do so, its attempt at predation will presumably fail, because there will remain in the market sufficient demand for the competitors’ goods at a higher price, and the competitors will not be driven out of business. In this case, Excel’s 20.4% market share after the merger suggests it would lack sufficient market power to engage in predatory pricing. See Williamson, Predatory Pricing: A Strategic and Welfare Analysis, 87 Yale L. J. 284, 292 (1977) (60% share necessary); Areeda & Turner, Williamson on Predatory Pricing, 87 Yale L. J. 1337, 1348 (1978) (60% share not enough). It is possible that a firm with a low market share might nevertheless have sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals. According to Monfort’s expert witness, however, Excel’s postmerger share of market capacity would be only 28.4%. 1 App. 66. Moreover, it appears that Excel, like the other large beef packers, operates at over 85% of capacity. Id., at 135-136. Thus Excel acting alone would clearly lack sufficient capacity after the merger to satisfy all or most of the demand for boxed beef. Although it is conceivable that Excel could act collusively with other large packers, such as IBP, in order to make the scheme work, the District Court found that Monfort did not “assert that Excel and IBP would act in collusion with each other in an effort to drive others out of the market,” 591 F. Supp., at 692. With only a 28.4% share of market capacity and lacking a plan to collude, Excel would harm only itself by embarking on a sustained campaign of predatory pricing. Courts should not find allegations of predatory pricing credible when the alleged predator is incapable of successfully pursuing a predatory scheme. See n. 17, infra.

      It is also important to examine the barriers to entry into the market, because “without barriers to entry it would presumably be impossible to maintain supracompetitive prices for an extended time.” Matsushita, 475 U. S., at 591, n. 15. In discussing the potential for oligopoly pricing in the beef-packing business following the merger, the District Court found significant barriers to entry due to the “costs and delays” of building new plants, and “the lack of [available] facilities and the cost [$20-40 million] associated with refurbishing old facilities.” 591 F. Supp., at 707-708. Although the District Court concluded that these barriers would restrict entry following the merger, the court’s analysis was premised on market conditions during the premerger period of competitive pricing. Ibid. In evaluating entry barriers in the context of a predatory pricing claim, however, a court should focus on whether significant entry barriers would exist after the merged firm had eliminated some of its rivals, because at that point the remaining firms would begin to charge supracompetitive prices, and the barriers that existed during competitive conditions might well prove insignificant. In this case, for example, although costs of entry into the current competitive market may be high, if Excel and others in fact succeeded in driving competitors out of the market, the facilities of the bankrupt competitors would then be available, and the record shows, without apparent contradiction, that shut-down plants could be producing efficiently in a matter of months and that equipment and a labor force could readily be obtained, 1 App. 95-96. Similarly, although the District Court determined that the high costs of building new plants and refurbishing old plants created a “formidable” barrier to entry given “the low profit margins in the beef industry,” 591 F. Supp., at 707, this finding speaks neither to the likelihood of entry during a period of supraeompetitive profitability nor to the potential return on investment in such a period.

       See Roller, The Myth of Predatory Pricing: An Empirical Study, 4 Antitrust Law & Econ. Rev. 105 (1971); Miller, Comments on Baumol and Ordover, 28 J. Law & Econ. 267 (1985).

       Claims of threatened injury from predatory pricing must, of course, be evaluated with care. As we discussed in Matsushita Electric Industrial Co. v. Zenith Radio Corp., the likelihood that predatory pricing will benefit the predator is “inherently uncertain: the short-run loss [from pricing below cost] is definite, but the long-run gain depends on successfully neutralizing the competition. . . . [and] on maintaining monopoly power for long enough both to recoup the predator’s losses and to harvest some additional gain.” 475 U. S., at 589. Although the commentators disagree as to whether it is ever rational for a firm to engage in such conduct, it is plain that the obstacles to the successful execution of a strategy of predation are manifold, and that the disincentives to engage in such a strategy are accordingly numerous. See, e. g., id., at 588-593 (discussing obstacles to successful predatory pricing conspiracy); R. Bork, The Antitrust Paradox 144-159 (1978); McGee, Predatory Pricing Revisited, 23 J. Law & Econ., at 291-300; Posner, The Chicago School of Antitrust Analysis, 127 U. Pa. L. Rev. 925, 939-940 (1979). As we stated in Matsushita,, “predatory pricing schemes are rarely tried, and even more rarely successful.” 475 U. S., at 589. Moreover, the mechanism by which a firm engages in predatory pricing — lowering prices — is the same mechanism by which a firm stimulates competition; because “cutting prices in order to increase business often is the very essence of competition ...[;] mistaken inferences . . . are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Id., at 594.

       Whether or not it so intends, the Court in practical effect concludes that a private party may not obtain injunctive relief against a horizontal merger unless the actual or probable conduct of the merged firms would establish a violation of the Sherman Act. The Court suggésts that, to support a claim of predatory pricing, a competitor must demonstrate that the merged entity is “able to absorb the market shares of its rivals once prices have been cut,” either because it has a high market share or because it has “sufficient excess capacity to enable it rapidly to expand its output and absorb the market shares of its rivals.” Ante, at 119-120, n. 15. The Court would also require a competitor to demonstrate that significant barriers to entry would exist after “the merged firm had eliminated some of its rivals ....” Ante, at 120, n. 15. Indeed, the Court expressly states that the antitrust laws “require the courts to protect small businesses . . . only against the loss of profits from 'practices forbidden by the antitrust laws.” Ante, at 116 (emphasis added). By emphasizing postmerger conduct, the Court reduces to virtual irrelevance the related but distinct issue of the legality of the merger itself.

       “Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the act of July 2, 1890 [the Sherman Act], or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation.” S. Rep. No. 698, 63d Cong., 2d Sess. 1 (1914).

       This Court has described the legislative purpose of § 7 as follows:
      “[I]t is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power to brake this force at its outset and before it gathered momentum.” Brown Shoe Co. v. United States, 370 U. S. 294, 317-318 (1962) (footnote omitted).

       Section § 16 states, in relevant part:
      “Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue . . . .” 15 U. S. C. § 26.

       In Brunswick, we reserved this question, stating: “The issue for decision is a narrow one. . . . Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares.” 429 U. S., at 484 (footnote omitted). Nor did we reach the issue of a competitor’s standing to seek relief from a merger under § 16 in Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519 (1983). Id., at 524, n. 5.

       15 U. S. C. § 15. This Court has emphasized the importance of the statutory award of fees to private antitrust plaintiffs as part of the effective enforcement of the antitrust laws. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130-131 (1969), the Court observed:
      “[T]he purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws.”
      See also Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 502 (1969); Hawaii v. Standard Oil Co., 405 U. S. 251, 262 (1972).