Congress intended that exceptions to anticompetitive mergers should be rare. In those few instances, the convenience and needs of the community must be so compelling that the merger's anticompetitive effects become only a sidelight to the overall good of the community.
In the case before us, the banks have proved the convenience and needs of the Philadelphia community in a persuasive, but not compelling fashion. Although we are persuaded that this merger would be good for Philadelphia and its banking community, this Court has seen no compelling evidence which would except this merger from our antitrust laws.
In short, the banks have failed to meet their burden of proving that this merger would have the probable effect of meeting the convenience and needs of the community. At best, they have convinced us that this is a possibility. They have failed to establish "that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served." Title 12 U.S.C. § 1828(c)(5)(B).
The Comptroller of the Currency presented a very appealing jury case. His witnesses, outstanding bankers and businessmen, established by a fair preponderance of the evidence (a) that they were convinced that the merger was a good thing for Philadelphia, as well as the banks; (b) that instead of the fears voiced by the economists for Justice that competition would be lessened, there would be strengthened competition both at the retail and wholesale level; (c) that not entirely as a measure of civic pride, another bank of the size contemplated would redound to the economic benefit of Philadelphia. It is not necessary to delineate in detail the testimony adduced. It was extremely persuasive and most interesting, but where the Judge must declare the law and the findings of fact, he cannot deviate one jot from those requirements. The present posture of the antitrust laws, as declared by the Congress and the Opinions of the Supreme Court, require the result reached. Comptroller Saxon's remarks about the necessity of financing urban renewal, redevelopment of the ghettos, etc., are in this day and age peculiarly appropriate. However, since the Court must adhere to a quantitative, rather than a qualitative theory, the result is inevitable.
It might also be pertinent to comment at this point on the effect of the Government's rebuttal testimony after the banks' and the Comptroller's showing of convenience and needs. The witnesses, a small banker, a city official, and small businessmen, were apparently produced for the purpose of showing that where the larger urban bank moved into suburban territory, it was not a good thing for the community. The banker, a very estimable gentleman, who lives on the perimeter but within the four-county area, clearly indicated that he knew nothing about the problems confronting the Philadelphia banks and could throw no light on whether the merger was good or bad for the community. The other witnesses definitely proved and established beyond peradventure of doubt that the coming of the branches of the urban bank into the suburban community created banking competition where none had been in existence before and definitely added to the well-being generally and economy of the entire community. Instead of proving that branch banking into small towns was harmful, Justice definitely proved the contrary.
The foregoing will constitute the general Findings of Fact and Conclusions of Law of the trial Judge. Each party, Justice, the banks, and the intervenor, have submitted, in different forms, Requests for Findings of Fact and Conclusions of Law. The rulings thereon will be filed as an appendix [not reproduced] to this Opinion. In any instance where there may be any lack of clarity in approved Requests for Findings of Fact or Conclusions of Law, the language of the Opinion will govern.
And Now, to wit, this 12th day of February, 1968, for the reasons set forth above, it is Ordered, Adjudged and Decreed as follows:
That the Agreement of Merger dated November 10, 1965 between the defendants, Provident National Bank and Central-Penn National Bank of Philadelphia, be and it is hereby Adjudged and Decreed to be unlawful, in violation of B.M.A. 1966 (80 Stat. 7);
Further that defendants, Provident National Bank and Central-Penn National Bank of Philadelphia, and all persons acting on their behalf, be enjoined from carrying out the Agreement of Merger or any similar plan or agreement, the effect of which would be to merge or consolidate said defendants.