A More Permissive View

Writing eight years ago about antitrust cases that came before the Supreme Court, Justice Potter Stewart grumbled: "The sole consistency that I can find is that . . . the Government always wins." His implication was that the high court's liberal majority, then headed by Earl Warren, would strike down any corporate merger that federal trustbusters challenged on any grounds at all. Lately, however, the court, now including four conservative judges appointed by President Nixon, among them Chief Justice Warren Burger, has been shifting to a considerably more permissive view of mergers.

In February 1973 the court failed to sustain a Government challenge to the merger of Denver's First National Bancorporation and the First National Bank of Greeley, Colo., and in March it permitted General Dynamics Corp. to acquire United Electric Coal Cos. of Illinois. Last week, in what many lawyers and businessmen regard as a decisive turn in the court's attitude, it voted 5 to 3 to let two banks in the state of Washington merge.

Lawyers for the Department of Justice argued that if Seattle-based National Bank of Commerce, the state's second largest, were allowed to buy Spokane's Washington Trust Bank, the ninth largest, the combination would stifle "potential competition" between the two. The Justice Department has long held that companies should not be allowed to buy into new geographical markets by acquiring big potential rivals, but should be forced to open their own branches in competition with firms already there. The court majority noted that state law would have made it difficult for the Seattle bank to open branches in Spokane.

In dissent, Justice Byron White protested that the court was "chipping away" at a fundamental antimonopoly principle: two companies should not be allowed to merge when they could compete.

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