This is a petition for review of an order of the Federal Trade Commission (FTC or the Commission) in the matter of The Great Atlantic & Pacific Tea Co., Inc.,-F.T.C. -[1973-76 Transfer Binder] CCH Trade Reg.Rep. ¶ 21,150 (1976) (hereinafter cited as A & P). The Commission found that A & P violated § 2(f) of the Robinson-Patman Act, as amended, 15 U.S.C. § 13(f) 1 by knowingly inducing or receiving illegal price discriminations from The Borden Company (Borden) in the purchase of “private label” milk in the Chicago area from 1965 through 1972. We deny the petition.
Now in its seventh year of litigation, this case has developed a voluminous record and thorough arguments and briefs by both sides. The Commission has succinctly set out the underlying facts in its extensive opinion, A & P,-F.T.C. at-, ¶ 21,150 at 21,039-40. The case arose from A & P’s attempt in the mid-1960’s to secure savings in its dairy products business by switching from selling “brand label” milk in its stores (e. g., milk sold under the brand name of the supplying dairy) to selling “private label” milk (e. g. milk sold under the A & P label). Pursuant to directions from A & P’s headquarters in New York, A & P’s “Chicago Unit,” 2 made up of over 200 A & P stores in northern Illinois, plus about 35 in neighboring portions of northwestern Indiana and a few stores in Iowa, began negotiations with Borden for the supply of A & P private label milk and other dairy produсts. In August of 1965, Borden submitted a bid, premised on A & P’s acceptance of limited delivery service, which .Borden claimed would have reduced A & P’s annual dairy costs by $410,000. Not content with this offer, A & P sought and received a lower bid from a competing diary, Bowman Dairy (Bowman).
Armed with a lower bid, A & P turned its attention back to Borden (contrary to its *976 usual practice, which is to allow only one bid from a supplier, A & P,-F.T.C. at -, ¶ 21,150 at 21,039). Elmer Schmidt, A & P’s Chicago Unit buyer, telephoned Borden’s Chicago chain store sales manager, Gordon Tarr, and told him that Borden’s initial offer was not “in the ball park.” Pressed for details as to what would be “in the ball park,” Schmidt told Tarr that a $50,000 improvement “would not be a drop in the pocket.” Borden then had to decide whether to re-bid. At the time, A & P was one of Borden’s major customers in the Chicago area. In addition, Borden had just invested over five million dollars in a new dairy processing facility in Woodstock, Illinois; losing the A & P account would have confronted Borden with the inefficient use of the new plant. Ralph Minkler, President оf Borden’s Chicago Central District, testified before the Administrative Law Judge that he was told by his superiors to “save the [A & P] business.” Accordingly, Borden offered to double A & P’s expected annual savings under a private label program to $820,000. Minkler emphasized to A & P’s Schmidt at the time this second bid was offered that it was being made only to meet the rival Bowman bid and that Borden knew “of no other way to justify this.” Before accepting the second and final Borden bid, A & P’s Schmidt requested a letter from Borden to the effect that the prices being offered A & P were proportionally available to others. Borden’s “availability letter” stated only that it felt its prices were proper under applicable law and that it was prepared to defend them.
The second Borden bid was then reviewed by Herschel Smith, A & P’s National Director of Purchases in New York. Smith testified that at the time, he regarded the second Borden bid as “substantially better” than the Bowman bid. As for Borden’s “availability letter,” Smith testified that he did not initially understand Borden’s letter to mean that other Borden customers could enjoy proportionally lower prices such as those agreed upon with A & P, but that after consultation with a Mr. Archer (who had no recollection of such a discussion) he became convinced that Borden’s letter was one of availability for all customers. After review by A & P’s legal department, the second and final Borden bid was accepted by A & P. Borden began serving A & P in the Chicago area with private label dairy products in November of 1965.
The above constitute the factual nucleus of the three-count complaint filed against A & P in 1971. Count I charged A & P with misleading Borden in the course of negotiations for the private label contract, in that A & P allegedly failed to inform Borden that its second and final bid had not merely “met”, but substantially “beaten,” Bowman’s competitive bid. Such conduct by A & P was said to constitute a violation of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, along with the policy оf the Robinson-Patman Act, 15 U.S.C. § 13. Count II, based on the same conduct by A & P, charged a violation of § 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f) 3 (knowing inducement or reception by A & P of price discriminations from Borden which are in turn prohibited by § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a)). Finally, Count III charged a combination of A & P and Borden to stabilize and maintain the retail and wholesale prices of milk and other dairy products, contrary to § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.
Following an extended discovery period and hearing, the latter extending over 110 days, the Administrative Law Judge found that as to Count I, A & P “ha[d] acted unfairly and deceptively” in accepting a price offer from Borden offered to meet competition from Bowman Dairy, “when in fact such [a] meeting-competition-defense 4 was not available and without informing Borden of this fact in violation of the policy *977 of Section 2 of the amended Clayton Act [the Robinson-Patman Act] and in violation of Section 5 of the Federal Trade Commission Act.”. Likewise as to Count II, A & P was found to have violated § 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f), in knowingly inducing or receiving price discriminations in the purchase of fluid milk and other dairy products. As to Count III, however, which had charged a combination to stabilize and maintain milk prices between A & P and Borden, the Administrative Law Judge held that the FTC had not satisfied its burden of proof. Accordingly, Count III was dismissed.
On review by the Commission, the Administrative Law Judge’s holding as to Count I, grounded on A & P’s alleged deceptive practices in bargaining with Borden, was reversed. The Commission characterized the charge as “directed to the question of what must legally be disclosed during contract negotiations.” A & P,F.T.C. at-, ¶ 21,150 at 21,040. That is, knowing that Borden’s final bid was substantially better than Bowman’s bid and also knowing that Borden would defend the legality of its bid, if necessary, on the ground that it was merely attempting to meet, but not beat, a competitor’s bid from Bowman Dairy, A & P refrained from affirmatively disclosing to Bordеn the terms of Bowman’s bid and accepted the Borden offer. The Commission did not agree with the Administrative Law Judge that such behavior constituted an unfair trade practice under the Federal Trade Commission Act, 15 U.S.C. § 45, primarily because such a holding would be “contrary to normal business practice and we think, contrary to the public interest.” A & P,-F.T.C. at -, ¶ 21,150 at 21,040.
In spite of the above holding as to Count I, the Commission nonetheless affirmed the finding of A & P’s liability under § 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f), ruling that (1) the sales by Borden to A & P had met the statute’s jurisdictional requirements that at least one purchase said to involve price discriminations “in commerce”; (2) that the evidence demonstrated the presence of price discriminations, which resulted in competitive injury, A & P,F.T.C. at-, ¶ 21,150 at 21,042-43; and (3) by virtue of its trade experience and common sense, A & P “knew or should have known that it was the beneficiary of a price discrimination having the requisite harmful competitive effects.” Id. at-, ¶ 21,150 at 21,043.
A & P had interposed two defenses to this charge of illegal price discrimination, the first of which was that it was protected from § 2(f) liability through 15 U.S.C. § 13(b),
5
which allows a
seller
charged with giving illegally discriminatory prices to rebut a
prima facie
case by showing that the lower price afforded a purchaser was “made in good faith to meet an equally low price of a competitor.” The Supreme Court has ruled in
Automatic Canteen v. FTC,
“[W]hen a buyer is charged with violating Section 2(f) [15 U.S.C. § 13(f)], the price he induces must come within the meeting competition defense not only from the seller’s point of view but also from the buyer’s.” A & P,-F.T.C. at -, ¶ 21,150 at 21,043.
The mere fact that had Borden been charged with giving illegal price di'scrimina *978 tions under § 2(a) (which it was not), it could have defended on the ground that its final bid was merely a good faith effort to meet what it believed to be Bowman’s competitive bid, was not sufficient in the Commission’s view, to absolve A & P of any wrongdoing, because A & P was aware of the price terms of both Borden’s and Bowman’s bids and had concluded in 1965 that Borden had substantially beaten its competitor. Also pursuant to its application of Kroger, supra, the Commission further ruled against A & P’s contentions that it could not be charged with knowingly inducing or receiving illegal price discriminations under § 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f), unless Borden had been found to have given such illegal prices under § 2(a) of the same Act, 15 U.S.C. § 13(a). A &P,-F.T.C. at-, ¶ 21,150 at 21,044.
A & P’s second defense was grounded on § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a),
6
which exonerates sellers who give discriminatory prices on goods of like grade and quаlity if the discriminations are justified by the seller’s manufacture, sale or delivery cost savings in servicing one purchaser over another. Much like the “meeting competition” defense, the purchaser may defend here on the alternative grounds that the discriminatory prices induced or received were in fact “cost justified” or that the buyer was unaware of the unavailability of that defense to the seller.
Automatic Canteen, supra,
As for the third charge against A & P, combining with Borden to stabilize dairy prices, the Administrative Law Judge’s dismissal of the count was affirmed by the Commission, because the evidence presented simply did not support the charge that “A & P ever gave Borden the assurance that A & P would not create a price differential at the retail level.” A & P,-F.T.C. at-, ¶ 21,150 at 21,049.
Finally, A & P’s claim that it was denied due process of law by the Commission’s delay in initiating the proceedings was dismissed on the grounds that any delays were reasonably related to the complexity of the *979 case and to A & P’s own failure to evince any concern for a speedy resolution of the matter. The substantive remedy imposed by the Commission was the nationwide distribution of the Commission's order to its milk and dairy products suppliers as well as placing the burden of going forward with a meeting-competition defense in the future on A & P. A & P unsuccessfully challenged the nationwide scope of the distribution order.
On this appeal, then, the sole remaining issue for our consideration is the Commission’s holding that A & P violated § 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(f), by knowingly inducing or receiving illegally discriminatory prices from Borden. We first take up briefly A & P’s jurisdictional objection, as well as the evidentiary basis for the Commission’s conclusion, and then move on to the heart of this appeal, A & P’s contention that the FTC misapplied the law with respect to its defenses of “meeting competition” and “cost justification”.
A & P’s jurisdictional challenge rests on the point that the Robinson-Pat-man Act prohibits illegal price discriminations only “where either or any of the purchasers involved in such discrimination are
in commerce .
. . .” 15 U.S.C. § 13(a) (emphasis added), and upon A & P’s assertion that Borden, in the circumstances of this ease, was not in interstate commerce. This language has been interprеted recently in
Gulf Oil Corp. v. Copp Paving Co., Inc.,
*980
The next issue is whether the Commission made out a
prima facie
violation of § 2(f), 15 U.S.C. § 13(f), by showing the knowing inducement or-reception by A & P of illegal price discriminations “where the effect of such discrimination^] may be substantially to lessen competition or tend to create a monopoly in any line of commerce . .” 15 U.S.C. § 13(a). The Commission must show
both, i. e.,
that the prices received by A & P from Borden were lower than its competitors and that A & P knew that the prices it received violated § 2(a), the provision prohibiting the giving of discriminatory prices by sellers.
American Motor Specialties v. FTC,
“If the requirement of knowledge in § 2(f) has any significant function, it is to indicate that the buyer whom Congress in the main sought to reach was the one who, knowing full well that there was little likelihood of a defense from the seller, nevertheless proceeded to exert pressure for lower prices.”346 U.S. at 79 ,73 S.Ct. at 1027 .
In reviewing this phase of the case, we are limited by the statutory directive that “[t]he findings of the commission or board as to the facts, if supported by substantial evidence, shall be conclusive.” 15 U.S.C. § 21(c). Put another way, “[t]he appraisal of the evidence and the inferences to be drawn from it are for the Commission, not the courts.”
FTC v. A. E. Staley Manufacturing Co.,
The conclusion that these substantial discriminations were injurious to competition is supported by A & P’s admission that fluid milk is one of the most important commodities carried in retail grocery stores and that milk products are “sometimes used as price leaders which are tagged below the normal market price to draw customers to a store where it is hoped the customer will purchase additional products . . . .” A & P also admitted that profit margins have been “notoriously low” in the retail grocery business. Putting these three factors together, the Administrative Law Judge con-
*981
eluded that if A & P’s competitors had received the larger discounts obtained by A & P through the private label agreement, they would have increased their net profits and could have been more competitive with A & P. It is, therefore, clear that there was substantial evidence presented to show a “ ‘reasonable possibility’,”
FTC v. Morton Salt Co.,
Turning to the “knowledge” requirement of § 2(f), the Administrative Law Judge was guided by
Automatic Canteen’s, supra,
requirement that, to make out a
prima facie
case, the Commission must initially show only that A & P knew that the methods by which it was served and the quаntities in which it purchased were the same as in the case of its competitors, or, if the methods or quantities differ, “The Commission must only show that such differences could not give rise to sufficient savings in the cost of manufacture, sale or delivery to justify the price differential, and that the buyer, knowing these were the only differences, should have known that they could not give rise to sufficient cost savings.”
Faced with a prima facie case of § 2(f) liability, however, the buyer may rebut the charge by resorting to statutory defenses available to sellers. The major defenses are that the lower prices offered were “made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor,” 15 U.S.C. § 13(b), (the “meeting competition” defense) and that the lower prices made “only due allowance” for cost differences to the seller in servicing a particular customer, 15 U.S.C. § 13(a) (the “cost justification” defense). In addition, and primarily to give substance to § 2(f)’s requirement that only those illegal prices knowingly induced or received by a buyer can form the basis of buyer liability, the Supreme Court ruled in Automatic Canteen, supra:
“We therefore conclude that a buyer is not liable under § 2(f) if the lower prices he induces are either within one of the seller’s defenses such as the cost justification or not known by him not to be within one of those defenses.”346 U.S. at 74 ,73 S.Ct. at 1025 . (Emphasis added.)
A & P defended its behavior below by invoking both the “meeting competí
*982
tion” and “cost justification” defenses. As to the first of these we agree with the Commissiоn that A & P could not assert the “meeting competition” defense because in 1965, at the time of the private label negotiations, A & P concluded that Borden’s bid was “ ‘substantially better’ ” or lower than Bowman’s,
A &
P,-F.T.C. at-,- ¶ 21,150 at 21,044.
A & P
also argued that a 1973 comparison of the Borden bid with the Bowman bid disclosed Borden’s to be higher. The Commission concluded, however, on the basis of substantial evidence, that Bowman’s bid was in fact higher than Borden’s.
A &
P,-F.T.C. at-, ¶ 21,-150 at 21,044. Knowing, therefore, that Borden’s final bid not only met, but substantially bettered Bowman’s, A & P accepted the prices in question. The Commission’s holding and rationale were to a large extent grounded on
Kroger Co. v. FTC,
“In order for the buyer to be sheltered through the exoneration of the seller under section 2(b) the prices induced must come within the defenses of that section not only from the seller’s point of view but also from that of the buyer.” Id.
In support of its petition for review, A & P first argues that under
Automatic Canteen, supra,
it was entitled to a “meeting competition” defense because it had every reason to believe that had Borden been charged with knowingly giving illegally discriminatory prices (it was not, pursuant to the Commission’s discretion,
see FTC
v.
Universal-Rundle Corp.,
Indeed, to rule otherwise would emasculate
Automatic Canteen, supra,
and the purpose of § 2(f) in that large buyers сould consistently play one seller off against another to the point where all bids are below sellers’ costs and then in reliance upon the sellers’ potential good faith and its “meet
*983
ing competition” defenses, thus vindicate the final price. Such tactics would ultimately result in the acquisition of increased, and perhaps overwhelming, market power by the large buyer, all to the ultimate competitive detriment of the buyer’s competitors. In addition, toleration of such abusive behavior by buyers would, in most cases, favor the largest seller, the ones most able to bear the losses resulting from such a competitive situation, with the further result of ultimate anticompetitive effects among sellers.
See generally, Rowe, supra,
§ 2.1 at 28. That is, in the situation where the seller is unaware of what the buyer is doing (admittedly the rare ease), the seller would, in effect, be engaging in predatory price cutting without his knowledge. While the seller may legally escape § 2(a) liability in such a situation because of an assumed “meeting competition” defense, adopting A & P’s argument in this case would not be, in the final analysis, in the public interest. As noted by the Supreme Court in
Utah Pie Co. v. Continental Baking,
A & P’s views regarding the buyer’s use of a “meeting competition” defense contrast sharply with the legislative origins of the defense under § 2 of the Clayton Act of 1914. Congress was concerned on the one hand with the seller’s ability to defend himself against local competition without having to cut prices in all areas where it did business, and on the other with the position of a seller trying to enter a new territory by cutting prices only locally. H.Rep.No. 627, 63rd Cong., 2d Sess., pt. 2, at 2-3 (1914); Rowe, supra, § 9.1 at 208-9.
A & P goes on to argue, however, that even if we find Kroger, supra, persuasive, it should not be followed in this case, because the Kroger Co. had been found to be a “lying buyer” in its negotiations with Beatrice, while in the present controversy, A & P has been exonerated under § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, for its behavior during negotiations with Borden. This argument is extended to include the assertion that it is simply inconsistent for the Commission to exonerate A & P from charges of unfair trade practices and still hold it liable for a § 2(f) violation. The net effect of this resolution, argues A & P, would be nonetheless to require buyers in the future affirmatively to disclose to a bidder that its bid had not only met, but substantially beaten, that of a competitor. Such a result would allegedly run counter to the public interest in vigorous and competitive price bargaining.
Again we reject these superficially attractive arguments. While Kroger did indeed involve a “lying buyer,” we do not regard the Sixth Circuit’s ruling as strictly limited to the situation where the charged buyer affirmatively lied to the seller. The rule that the “meeting competition” defense must be looked at from the buyer’s perspective where the buyer is charged under § 2(f) is a salutary and correct one, whether the buyer lies or merely keeps quiet about the nature of the competing bid it has already been offered, for the policy reasons stated supra. Further, the line between affirmative misrepresentation, as in Kroger, and the present case, where Borden was told it was not “in the ball park” and that a $50,000 reduction would not be a “drop in the pocket”, is a fine one indeed. Kroger is, therefore, relevant to the present controversy and its sound reasoning must be applied here.
The seeming inconsistency between a finding of § 2(f) liability and exoneration under a charge of unfair trade practices is, in turn, more apparent than real. One commentator recently opined with regard to this very case that “Section 5 [of the Federal Trade Commission Act, 15 U.S.C. § 45] should not be used for reaching instances of price discrimination which are covered (either explicitly included or excluded) by the Robinson-Patman Act.” Reeves, Toward a Coherent Antitrust Policy: The Role of *984 Section 5 of the Federal Trade Commission Act in Price Discrimination Regulation, 16 B.C. Ind. & Comm.L.Rev. 151, 198 (1975). 9 That is, where a § 2(f) violation can be made out by sufficient competent evidence, there is neither need nor reason to invoke the Federal Trade Commission Act. While we express no opinion as to when and under what circumstances the Commission may or may not charge a violation of the Federal Trade Commission Act, 10 the point here is that A & P’s liability under § 2(f) must be independently assessed without regard to any other statute, so that a finding that A & P has not engaged in unfair trade practices does not, ipso facto, absolve A & P under § 2(f).
We hold that in this case and under these circumstances, the Commission properly deprived A & P of Borden’s potential “meeting competition” defense.
Turning then to the “cost justification” defense, it is now settled that a buyer charged under § 2(f) may defend on the alternative grounds that the prices induced or received were in fact cost justified to the seller or that the buyer did not know or could not reasonably have known that the prices were not cost justified to the seller.
Automatic Canteen, supra,
“A & P’s cost justification studies . are so defective and inadequate as to furnish no evidentiary basis for justifying A & P’s preferential price for private label items on the basis of Borden’s savings in cost.”
The above conclusion was adopted by the Commission, A & P, - F.T.C. at -, ¶ 21,150 at 21,047-48. The A & P studies were flawed in a variety of respects, many of which were attributable to the preparer’s unfamiliarity with Borden’s operations in the Chicago area. For example, as to delivery costs, the largest single expense item after the direct material costs of dairy products, the Administrative Law Judge excluded A & P’s studies beсause they were originally based on wholesale milk delivery time standards prepared by the management consulting firm of Case & Co., and the underlying data supporting the conclusions reached on these studies was not produced. Further, the computation of Borden’s processing costs at its Woodstock, Illinois facility was likewise flawed; instead of computing those costs directly, A & P’s cost analyst first determined “unit cost” at Borden’s two Wisconsin dairies and then multiplied by the number of units produced at the Woodstock plant to arrive at total Woodstock cost, assuming Wisconsin unit costs. The final figure was adjusted to reflect the fact that the Woodstock plant had higher labor costs but lower non-labor costs than the Wisconsin plants. The Commission agreed with the Administrative Law Judge that such a roundabout method of cost computation was not “reliable.”
A & P nonetheless argues that the Commission acted improperly in rejecting its cоst studies, in that they were made in good faith and in accordance with sound accounting principles, entitling them to “a very great weight.”
Minneapolis-Honeywell Regulatory Co.,
Thus, A & P was unsuccessful in showing that Borden’s final prices for private label milk were cost justified in fact, the first ground of the “cost justification” defense. On the other hand, the Commission did not itself submit a cost study to show the absence of cost justification. 11 A finding of § 2(f) liability, therefore, has been arrived at without a square holding as to the factual absence of cost justification. This sеemingly anomalous situation is naturally seized upon by A & P, which argues that the Commission’s decision “stand[s] Automatic Canteen on its head” by assuming that the FTC “can show that the buyer was ‘reasonably aware’ that the prices were not cost justified without showing that they were in fact, not cost justified.” Our reading of Automatic Canteen, supra, does not, however, support the proposition that the Commission must, in all cases, show as part of its prima facie case that the prices induced or received by the buyer were not in fact cost justified.
In
Automatic Canteen, supra,
the Court rejected the FTC’s contention that a
prima facie
case of § 2(f) liability was made out where price differentials were shown and where the buyer knew “only that the prices are lower than those offered other buyers.”
This is not the first time that an argument similar to A & P’s has been advanced. In
Fred Meyer, Inc. v. FTC,
“[t]hat the Commission did not prove the costs of the suppliers is immaterial. Costs surveys are expensive and labyrinthine proceedings whose results are often dеpendent upon the cost accounting theory used. To require them in all proceedings, even against buyers, would too often be an exercise in futility. At least when the facts and the inferences to be drawn are as clear as they are on this point, we think the method of proof adopted by the Commission here is appropriate to its end, that of showing that the buyer ‘is not an unsuspecting recipient of prohibited discriminations,’ Automatic Canteen, supra,346 U.S. at 81 ,73 S.Ct. at 1028 . (Emphasis added.)”359 F.2d at 364 .
The above considerations are directly relevant to the present case, where the Commission showed, through substantial evidence (as summarized, supra) that A & P knew or reasonably should have known that the final price concessions it received from Borden were not cost justified. To require the Commission to submit a formal cost study or other cost-measuring analysis here, in addition to the testimony and other evidence it has already adduced, would go far towards foreclosing the possibility of a § 2(f) proceeding even where all significant indiсations and factors point to the absence of cost justification and the likelihood of illegal price discriminations. Our result is, therefore, consistent with
Automatic Canteen’s
concern with the “balance of convenience” in going forward with evidence in § 2(f) cases,
Having failed in showing actual cost justification, A&P was thus reduced to defending the § 2(f) charge through a showing that it did not know, nor had any reason to know, that Borden’s prices could not be cost justified. We have already ruled that the Commission established a
prima facie
showing of A & P’s knowledge that the prices in question were
not
cost justified, consistent with its burden of proof on the issue,
Beatrice Foods Co., supra,
As to the Commission’s
prima facie
showing, A&P makes a variety of arguments, the thrust of which is that the evidence submitted as probative of A & P’s knowledge of illegal price discriminations could be easily explained as resulting from quite different factors and motivations. By way of example, the Commission found that after the commencement of private label service in 1975, Borden charged A&P two different prices for private label and Borden-label dairy products, even though, except for a small amount devoted to advertising Borden-label products, there was “no difference in the cost to Borden of private and branded products.” A & P,-F.T.C. at -, ¶ 21,150 at 21,047. From these facts, among others, the Commission inferred that A&P knew that any differences in service were not cost justified. A & P now argues that “[t]he mere fact that Borden’s prices to A & P for branded milk (delivered under similar conditions) were higher than for private label should perhaps have made A&P suspicious that the brand label prices were too high, rather than the private label prices were too low.” Such an argument essentially invites us to retry the facts and draw new inferences in this case, which we may not do.
FTC v. A. E. Staley Manufacturing Co., supra,
We come to the last ground of the petition, namely that the Commission’s final order was unnecessary and unduly broad. The order provided that in the future, A & P bear the burden of going forward with the “meeting competition” defense and also decreed the nationwide distribution of the order to A & P’s operating divisions, as well as its suppliers of milk and other dairy products. Our scope of review is here limited by the principles that Congress has placed the primary responsibility for fashioning orders upon the Commission,
FTC v. National Lead Co.,
With the above in mind, we first take up A & P’s argument that the order was in any event unnecessary because A & P voluntarily terminated its private label arrangement with Borden in February of 1972, four months after the issuance of the complaint in this proceeding and over five years ago to date. While it may be true that a long delay in the proceedings, accompanied by significant changes in the market upon which the Commission’s order will act, may be sufficient to warrant the remand of a case to the Commission for further evidence as to the present structure of the relevant market,
Columbia Broadcasting System, Inc. v. FTC,
As to the nationwide scope of the order, A & P argues that the evidence did not show that any A & P officer or employee at the division level or above was “guilty” of even the innocuous conduct alleged in the complaint, so that the order should be limited to A & P’s “Chicago Unit.” The fact remains, however, that the private label program was initiated by A & P’s national headquarters in New York, and A & P’s national director of purchases had a direct hand in accepting the final Borden bid here in question. In light of these factors, we cannot say that the Commission abused its “wide discretion,”
Jacob Siegel Co. v. FTC, supra,
It is also urged that the Commission’s order providing that henceforth, A & P must carry the burden of going forward with a “meeting competition” defense is improper in that it shifts the burden of proof from the Commission to the petitioner. By its very terms, however, the order does not affect the burden of proof but only the burden of going forward, a distinction highlighted in Automatic Canteen, supra. See, Rowe, supra, § 14.7 at 441. In a § 2(f) proceeding, the Commission must continue to carry the burden of proving the knowing inducement or receipt of illegally discriminatory prices.
The petition for review is hereby denied, and enforcement of the order is granted.
Notes
. 15 U.S.C. § 13(f) provides:
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.”
15 U.S.C. § 13(a) and (b), provided in pertinent part:
“(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered . . .”
“(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevеnt a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.”
. A & P states in its Brief in this appeal that its Chicago Unit was one of 32 similar “Units” reporting to seven “Divisions,” into which A & P had grouped its over 4,000 retail grocery stores.
. Quoted in note 1, supra.
. The “meeting competition” defense to a charge of price discrimination, as incorporated in 15 U.S.C. § 13(b), quoted at note 1, supra, is available to both buyers and sellers when charged with violations of the Robinson-Pat-man Act, 15 U.S.C. § 13.
. Quoted in note 1, supra.
. Quoted in pertinent part in note 1, supra.
. A & P’s argument that as to products other than fluid milk (i. e., cottage cheese, fortified skim milk, buttermilk, eggnog, onion dip and sour cream) supplied by Borden under the pri
*980
vate A & P label, there was no Robinson-Pat-man jurisdiction is well-based and correct. These products were chemically changed from their origin as raw milk by a variety of processes and additions at Borden’s Woodstock plant. See,
i.
e.,
Red Apple Supermarkets, Inc. v. Deltown Foods, Inc.,
. A similar formulation of the § 2(f) prima facie case is as follows:
“Thus, the buyer’s prima facie violation arises upon proof that the discriminatory concession in his favor was sizable enough to create competitive injury, and that furthermore the nature of the discrimination placed him on notice of its probable illegality.” (Emphasis in original.) Rowe, Price Discrimination under the Robinson-Patman Act, § 14.7, at 438 (1962).
. The Reeves article discusses only the FTC’s complaint in the present case and was published prior to the Administrative Law Judge’s initial decision in the case.
. For an excellent analysis and summary of past and present FTC practice under § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, see Rice, Consumer Transactions, Ch. 8 (1975).
. The only other evidentiary material as regards cost justification was the Borden figures disclosed by Joseph Malone, which indicated that Borden would either lose money or make minimal profits on the A & P private label arrangement. The Commission did not consider those figures as a formal cost study, however,
A
&P,-F.T.C. at-, n. 25, ¶ 21,150 at 21,046 n. 25, and took them into account only as they served to demonstrate A & P’s knowledge of the probability of a lack of cost justification: “Although the [Malone] data may not be completely accurate, it demonstrates that A & P at least had knowledge that the discounts could drastically affect Borden’s profits, and therefore, A & P should have inquired whether the prices were available to others. See Fred Meyer,
Inc. v. FTC, supra,
. Two cents each are allocated for cartons, plant costs and profits, and delivery costs.