The opinion
FERNANDEZ, Circuit Judge,
Concurring and Dissenting:
I agree that the plaintiffs lacked standing as to SRI and, therefore, concur in the result of part III of the majority opinion. However, I dissent from part IV.
While this case does involve a very complicated set of transactions, it presents a rather straightforward antitrust law question. That is, where former competitors create a bona fide joint venture to which all of their assets and operations in segments of their businesses are contributed, will there be a per se violation of the antitrust laws, if the joint venture entity sets the prices of the goods it sells? I think the answer is no.
Here, Shell and Texaco formed Equilon Enterprises, LLC in the western United States, and Motiva Enterprises, LLC in the eastern United States. 1 There can be no doubt that each of the new entities is a true, bona fide, economically integrated joint venture. Refineries, lubricant plants, research laboratories, thousands of service stations, thousands of miles of pipeline, thousands of employees, and over 100 terminals were contributed to the ventures. Upon those transfers, Shell and Texaco ceased refining and marketing operations in both the western and the eastern United States. They were no longer in those businesses within the United States; the joint ventures were. 2 In other words, *1126 Equilon now manufactured, inventoried, transported, and marketed the products. It ran the refinery; it had the research facilities; it transported products; and it dealt with the station operators and other buyers. It also priced the products, and set the same price for its Shell and Texaco brands.
While Independent Operators do not assert that the placing of the whole manufacturing, transport and marketing functions in a single entity violated 15 U.S.C. § 1 , they do assert that having the pricing function in Equilon did violate the antitrust laws per se. The majority thinks that might be true; I do not.
It is plain enough that the mere creation of a joint venture is not a per se antitrust violation. No doubt, like mergers, joint ventures are combinations of business assets but “such combinations are judged under a rule of reason” analysis. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 , 104 S.Ct. 2731, 2740 , 81 L.Ed.2d 628 (1984). Especially should that be true of the LLC type of venture, which is not only a separate entity, but which also functions as a separate economic unit for all practical purposes. See Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1053 (9th Cir.1983). In fact, to slightly paraphrase the Supreme Court statement in Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332, 356 , 102 S.Ct. 2466, 2479 , 73 L.Ed.2d 48 (1982):
[Equilon is] ... analogous to partnerships or other joint arrangements in which persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit. In such joint ventures, the partnership is regarded as a single firm competing with other sellers in the market.
Nor does the mere fact that Equilon sets prices for the products it manufactures and sells suffice to demonstrate that its actions were price fixing for antitrust purposes. See Broad. Music, Inc., v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8-9 , 99 S.Ct. 1551, 1556-57 , 60 L.Ed.2d 1 (1979). Rather, “[l]iteralness is overly simplistic and often overbroad. When two partners set the price of their goods or services they are literally ‘price fixing,’ but they are not per se in violation of the Sherman Act.” Id. at 9 , 99 S.Ct. at 1557 . So just what could make the operation of Equilon a per se violation of the antitrust laws? Surely it is not a claim that the venture is a sham. See Addamax Corp. v. Open Software Found., Inc., 152 F.3d 48, 52 (1st Cir.1998). No one seriously asserts that.
Nor can it be that this is a ease like Citizen Publ’g Co. v. United States, 394 U.S. 131 , 89 S.Ct. 927 , 22 L.Ed.2d 148 (1969). There, two newspapers formed a third corporation for the principal purpose of eliminating competition, but each remained in the same business in the same area, and retained the production of the true product — news and editorials — in its own hands. Id. at 133 , 89 S.Ct. at 928 . Moreover, the newspapers themselves-not the new entity-jointly set the subscription and advertising rates. Id. at 134 , 89 S.Ct. at 928 . None of that is true here. Equi-lon owned all of the assets, all of the obligations, and, in a word, the whole business. It set the prices. It was a separate entity; a fact that the Independent Operators seem unable or unwilling to grasp.
*1127 But, Independent Operators argue, in this case the fixing of prices by the venture is neither essential nor “reasonably ancillary to the legitimate cooperative aspects of the venture.” Freeman v. San Diego Ass’n of Realtors, 322 F.3d 1133, 1151 (9th Cir.2003). The majority agrees; I cannot understand why. The situation here is far from the kind of situation we faced in Freeman . There, the reason for the venture was the unifying of disparate multiple listing databases. Id. at 1140 — 41. That done, there was a new database entity, and the corporations that formed it for that purpose went on operating their own businesses. But they all also agreed to fix a price for support services. That was essentially unrelated to the database itself, and was unnecessary, and unjustified. Id. at 1151 . It was the latter “price fix” that ran afoul of antitrust principles. Here we have nothing of the kind.
In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services? I am at a loss for an answer to that question, and nothing written about this case to date imparts additional wisdom or better information.
Yet Independent Operators insist that the setting of the prices is a violation. That is, separate juridical business entity though it is, Equilon can really only be the semblance of a true business, for if it, like any other economic actor, desires to price its own goods, its members may well be subject not merely to commination, but to outright denunciation by the courts as per se violators of the antitrust laws. It means that this entity must ask a separate juridical entity-for example, Shell, which does not itself own any of the facilities or products-to decide what price should be charged by Equilon. 3 Again, the majority thinks that might be so; I do not.
We now have an exotic beast, no less strange than a manticore, roaming the business world. This beast would otherwise be a true business, but when it acts like a true business — sets prices for its own goods — it subjects its otherwise insulated members to the severe sting of antitrust liability. While it has the head of a business man and the body of an entrepreneurial lion, it has the tail of a liability scorpion. I suppose I am as taken with stories of exotic beasts as the next person, but I prefer to leave them in the realm of the unknown; I would rather not confront them in the marketplace.
In short, I do not believe that the Independent Operators have pointed to a per se antitrust violation, 4 and they do not even attempt to assert a full rule of reason claim.
Thus, I respectfully dissent as to part TV of the majority opinion.
. Henceforth, I shall only refer to Equilon because it is the entity that directly affects plaintiffs in this case-independent Operators.
. We have previously had occasion to describe the nature of Equilon. See Abrahim & Sons Enters., v. Equilon Enters., LLC, 292 F.3d *1126 958, 960 (9th Cir.2002). As we stated, an LLC is an entity truly distinct from its members and its acts "are deemed independent of the acts of its members.” Id. at 962 . It is a separate juridical person. Id. LLCs are much like corporations, and, though controlled by their members, "LLCs remain separate and distinct from their members." Id.
. Shell, by the way, is a mere member of Equilon and is shielded from liability for the debts or obligations of Equilon, just as corporate shareholders are shielded. See Cal. Corp.Code § 17101.
. Similarly, no “quick look” violation is shown. See Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770, 119 S.Ct. 1604, 1612 , 143 L.Ed.2d 935 (1999); Bogan v. Hodgkins, 166 F.3d 509 , 514 n. 6 (2d Cir.1999).