United States v. Cargill, Incorporated; Public Comment and Plaintiff's Response

Federal RegisterMar 24, 2000

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DEPARTMENT OF JUSTICE

Antitrust Division

[Civil No. 98-CV-1875 (GK)]

United States v. Cargill, Incorporated; Public Comment and Plaintiff's Response

Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States of America hereby publishes below the comments received on the proposed Final Judgment in

United States

Cargill, Incorporated and Continental Grain Company,

Civil No. 98-CV-1875 (GK), filed in the United States District Court for the District of Columbia, together with the Untied States' response to the comments.

Copies of the comments and response are available for inspection in Room 215 of the U.S. Department of Justice, Antitrust Division, 325 Seventh Street, NW, Washington, DC 20530 (telephone: 202/514-2481) and at the office of the Clerk of the United States District Court for the District of Columbia, 333 Constitution Avenue, NW, Washington, DC 20001. Copies of these materials may be obtained upon request and payment of a copying fee.

Constance K. Robinson,

Director of Operations, Antitrust Division.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In the matter of: United States of America, Plaintiff, v. Cargill, Incorporated, and Continental Grain Company, Defendants, Civil Action No. 99-1875 (GK).

UNITED STATES RESPONSE TO PUBLIC COMMENTS

Communications with respect to this document should be addressed to: Roger W. Fones, Chief; Donna N. Kooperstein, Assistant Chief; Robert L. McGeorge, Michael P. Harmonis, Attorneys; Transportation, Energy & Agriculture Section, Antitrust Division, U.S. Department of Justice, 325 Seventh Street, NW, Washington, DC 20530, (202) 307-6361.

February 11, 2000.

Table of Contents

I. Factual Background

A. The Parties To The Transaction

B. The Proposed Acquisition

C. The Complaint

D. The Proposed Settlement

E. Compliance With Antitrust Procedures And Penalties Act

II. Legal Standard Governing The Court's Public Interest Determination

III. Summary Of Public Comments

IV. The Department's Analysis Of The Transaction

A. The Relevant Merger Law

B. Framework For The Department's Competitive Analysis

1. Monopoly Analysis

2. Monopsony Analysis

C. Overview Of The Department's Analysis Of Competitive Issues In This Transaction

1. Background

2. Analysis Of Cargill As A Seller Of Standard-Grade Grain Products

3. Analysis Of Cargill As A Seller Of Specialty Products

4. Analysis Of Cargill As A Buyer Of Grain

5. Analysis Of Cargill As An Operator Of River Elevators Designated By CBOT For Settlement Of Futures Contracts

6. Summary Of The Department's Competitive Analysis

V. The Department's Responses To Specific Comments

A. Remedy

B. Market Definition

C. Cargill's Power Over Price

D. Futures Markets

E. Specialty Markets

F. Nebraska Grain Markets

G. Concentration In Other Agriculture Markets

H. Ban On All Agribusiness Mergers

I. Vertical Integration

J. Non-Economic Concerns

K. Administration And Legislative Actions

L. The OCM Comments

M. A Hearing Is Unnecessary In This Case

N. The 60-Day Comment Period Should Not Be Extended

Conclusion

United States Response to Public Comments

Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b) (“AAPA”), plaintiff, the UNITED STATES OF AMERICA, acting under the direction of the Attorney General, hereby files comments received from members of the public concerning the proposed Final Judgment in this civil antitrust suit and the Response of the United States to those comments.

I. Factual Background

A. The Parties to the Transaction

Cargill, Incorporated (“Cargill”) and Continental Grain Company (“Continental”) are grain traders. They employ grain distribution networks—primarily composed of country elevators, rail terminals, river elevators, and port elevators—to buy grain from farmers and other suppliers, store it, and move it to their domestic and foreign customers. In addition, both firms are engaged in related businesses such as grain processing and cattle feeding.

B. The Proposed Acquisition

On October 9, 1998, Cargill entered into an agreement with Continental to acquire its gain trading business (conducted by Continental's Commodity Marketing Group). Cargill is not acquiring Continental's processing or finance divisions, which Continental will continue to operate as independent businesses after Cargill's acquisition of its grain trading business.

C. The Complaint

On July 8, 1999, the United States Department of Justice (the Department) filed a Complaint with this Court alleging that Cargill's acquisition of Continental's Commodity Marketing Group would substantially lessen competition for grain purchasing services in nine relevant markets, in violation of Section 7 of the Clayton Act (15 U.S.C. 18). In those markets, Cargill would have gained the power to artificially depress the prices paid to U.S. farmers and other suppliers for their grain and oilseed crops—including corn, soybeans, and wheat (collectively referred to as “grain”).

The Complaint also alleged that the transaction would have resulted in Cargill and one other grain company controlling approximately eighty percent of capacity at the Chicago and Illinois River elevators that are authorized by Chicago Board of Trade (CBOT) to accept delivery for the settlement of corn and soybeans futures contracts.

That concentration would have increased the risk of manipulation of futures prices.

For corn futures contracts, CBOT-authorized delivery points are located in Chicago and on the Illinois River as far south as Peoria; for soybean contracts, these facilities are in Chicago and along the entire length of the Illinois River.

Finally, the Complaint alleged that a non-compete provision of the Cargill/Continental agreement was a division of markets in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Because the Cargill/Continental acquisition agreement prohibited Continental from re-entering the grain distribution business for five years, the Complaint charged that it gave Cargill more time than would be reasonably necessary to gain the loyalty of former Continental suppliers and customers, and therefore, the agreement constituted an unlawful division of markets.

D. The Proposed Settlement

The Department, Cargill, and Continental filed a joint stipulation for entry of a proposed Final Judgment settling this action on July 8, 1999. In each of the nine markets where the Department has determined that the consolidation of competing Cargill and Continental grain elevators would give grain companies the power to artificially depress the price of grain that they pay farmers and other suppliers, the Final Judgment requires the divesture of either the Cargill grain elevator or the Continental grain elevator serving that

market. The Final Judgment also requires divestitures of elevators on the Illinois River to ensure that concentration among firms controlling CBOT-authorized delivery points does not provide opportunities for manipulation of CBOT corn and soybean futures contracts.

Continental's divestitures to preserve competition for the purchase of grain from farmers and other suppliers include:

• Its river elevator at Lockport, Illinois;

• Its river elevator at Caruthersville (Cottonwood Point), Missouri;

• Its rail elevator at Salina, Kansas;

• Its rail elevator at Troy, Ohio;

• Its port elevator at Stockton, California; and

• Its port elevator at Beaumont, Texas.

Prior to entering into the proposed Final Judgment, Continental also terminated its minority interest in a river elevator at Birds Point, Missouri. Accordingly, no divestitures were required to protect competition in this market.

In order to protect against manipulation of CBOT futures markets, Continental was required to divest its Chicago port elevator.

Continental's divestiture of its Lockport river elevator is a remedy for concentration among authorized CBOT delivery stations, as well as remedy for concentration among grain buyers in that area.

Cargill's divestitures to preserve competition for the purchase of grain from farmers and other suppliers were:

• Its river elevator at East Dubuque, Iowa;

• Its river elevator at Morris, Illinois; and

• Its port elevator at Seattle, Washington (with the option to retain its port elevator at Seattle if it does not acquire the Continental port elevator at Tacoma).

In addition, the Final Judgment requires Cargill to enter into a throughput agreement making one-third of the daily loading capacity at its Havana, Illinois River elevator available to an independent grain company to avoid undue concentration among firms controlling CBOT delivery points.

Cargill's divestiture of its Morris facility serves to protect against CBOT concentration problems, as well as concentration among buyers of grain in that market.

The proposed Final Judgment also prohibits Cargill from acquiring any interest in the facilities to be divested by Continental pursuant to the proposed Final Judgment or the river elevator at Birds Point, Missouri in which Continental formerly held a minority interest.

Finally, the proposed Final Judgment prohibits the non-compete provision of the Cargill/Continental agreement from remaining in force for more than three years.

E. Compliance With Antitrust Procedures and Penalties Act

To date, the parties have compiled with the provisions of the Antitrust Procedures and Penalties Act as follows:

(1) The Complaint and proposed Final Judgment were filed on July 8, 1999;

(2) Defendants filed settlement pursuant to 15 U.S.C. 16(g) on July 19, 1999.

(3) The Competitive Impact Statement (“CIS”) was filed on July 23, 1999;

(4) The proposed Final Judgment and CIS were published in the

Federal Register

on August 12, 1999, 64 F.R. 44,046 (1999);

(5) A summary of the terms of the proposed Final Judgment and CIS was published in the

Washington Post,

a newspaper of general circulation in the District of Columbia, for seven days during the period August 10, 1999 through August 16, 1999;

(6) The sixty-day period specified in 15 U.S.C. 16(b) commenced on August 12, 1999 and terminated on October 12, 1999;

(7) The United States hereby files the comments of members of the public and the Nebraska Attorney General's amicus brief (bound separately as Appendix A) together with the Response of the United States to the comments and brief, pursuant to 15 U.S.C. 16(b); and

(8) The United States will move this Court for entry of the Final Judgment after the comments and the Response are published in the

Federal Register

. The Final Judgment cannot be entered before the publication. 15 U.S.C. § 16(d).

II. Legal, Standard Governing the Court's Public Interest Determination

Upon the publication of the public comments and this Response, the United States will have fully compiled with the APPA. After receiving the United States' motion for entry of the proposed Final Judgment, the Court must determine whether it “is in the public interest.” 15 U.S.C. 16(e). In doing so, the Court must apply a deferential standard and should withhold its approval only under very limited conditions. As Judge Greene observed in the

AT&T

case:

If courts acting under the Tunney Act disapproved proposed consent decrees merely because they did not contain the exact relief which the court would have imposed after a finding of liability, defendants would have no incentive to consent to judgment and this element of compromise would be destroyed. The consent decree would thus as a practical matter be eliminated as an antitrust enforcement tool, despite Congress' directive that it be preserved.

United States

American Tel. & Tel. Co.,

552 F. Supp. 131, 151 (D.D.C. 1982),

aff'd mem. sub nom. Maryland

United States,

460 U.S. 1001 (1983).

The United States Court of Appeals for the District of Columbia has noted that “constitutional questions * * * would be raised if courts were to subject the government's exercise of its prosecutorial discretion to non-deferential review.”

Massachusetts Sch. of Law at Andover, Inc.

United States,

118 F.3d 776, 783 (D.C. Cir. 1997) (citing

United States

Microsoft Corp.,

56 F.3d 1448, 1457-59 (D.C. Cir. 1995). Rather, the district court should review the proposed Final Judgment “in light of the violations charged in the complaint and * * * withhold approval only [a] if any of the terms appear ambiguous, [b] if the enforcement mechanism is inadequate, [c] if third parties will be positively injured, or [d] if the decree otherwise makes ‘a mockery of judicial power.’ ”

Id.

at 783 (quoting

Microsoft

at 1462).

With this standard in mind, the Court should review the comments of members of the public concerning the proposed Final Judgment and the United States' Response to those comments. As this Response makes clear, entry of the proposed Final Judgment is in the public interest.

III. Summary of Public Comments

Sixty-seven individuals, eight public officials, and nineteen organizations expressed their views on the proposed Final Judgment. These comments and questions are summarized below.

Sixty-five individual farmers filed comments. Some are disappointed because they believe the transaction does nothing to raise the prices they receive when they sell their grain. Others are concerned that the markets in which they sell their grain have become so concentrated that the grain companies will be able to depress prices paid to farmers for their grain. Still others are concerned that Cargill will be able to monopolize “specialty or niche” markets or lessen competition in grain futures markets. Finally, some of the commenting farmers believe there should be a complete ban on mergers and acquisitions in the agribusiness sector.

Congresswoman Jo Ann Emerson, Missouri Attorney General Jeremiah Nixon, and several farm organizations, including the Missouri Farm Bureau Federation, Missouri Soybean Association, and Permiscot County Farm Bureau, addressed their comments to Section IV(D) of the proposed Final Judgment, which directs Continental to divest its river elevator at Cottonwood Point, Missouri, near Caruthersville. After noting that Bunge Corp. is one of

the major grain purchasers in the vicinity of Cottonwood Point, these commentators urge the Department of Justice not to permit divestiture of the Cottonwood Point facility to Bunge.

New Mexico Attorney General Patricia Madrid has no opposition to the proposed Final Judgment, although she is concerned about there being one less significant competitor in the national grain trading market after the transaction. Attorney General Madrid, therefore, urges the Department to actively advocate administrative and legislative actions that will invigorate competition in the agricultural sector of our economy.

Minnesota Attorney General Mike Hatch believes the proposed Final Judgment does not go quite far enough to ameliorate antitrust concerns raised by the transaction. He is concerned that grain markets are already too highly concentrated and that agriculture industries, in general, are experiencing high rates of vertical consolidation. Under the circumstances, Attorney General Hatch recommends that the proposed Final Judgment be modified to prohibit Cargill from acquiring any other of its competitors in grain export, transport, and storage markets.

Nebraska and South Dakota Attorneys General Don Stenberg and Mike Barnett the issue with the relevant geographic markets as defined in the Complaint. They believe the Department of Justice should not have focused on overlapping draw areas for country, rail, river or port areas, but rather suggest the relevant market should be enlarged to include the entire United States or even the rest of the world. Given that Cargill and Continental are two of our nation's largest grain trading companies, these—Attorneys General are of the view that the two firms should not be permitted to merge under any circumstances. In addition, Attorney General Stenberg's comments in his amicus brief mirror many of the concerns expressed by the Organization for Competitive Markets, discussed

infra.

North Dakota Attorney General Heidi Heitkamp filed a comment expressing her appreciation for the ways in which this law suit has preserved competition for farmers at the local level in North Dakota. She, nevertheless, remains concerned about powerful concentrations of agribusiness firms that North Dakota farmers must face. Based on that concern, she suggests that the Department should reconsider the adequacy of divestitures required by the proposed Final Judgment and instead, seek to enjoin the transaction in its entirety. In particular, Attorney General Heitkamp thinks the time has come to rethink antitrust analysis in the farm sector to give greater consideration to non-economic concerns.

John W. Helmutch, an agricultural economist, filed a comment that set forth his suggested analytical framework for the Department's use in analyzing the transaction. In his view, it is essential for the Department to assess market concentration, the extent of information available to grain traders and farmers in the market, and the potential adverse competitive effects on grain futures markets and other agribusinesses beyond grain trading, such as livestock markets. Mr. Helmuth asks if we have made these assessments.

A.V. Krebs believes the Department's analysis is deficient because it fails to consider whether the transaction will permit Cargill to force its own standards, practices, marketing arrangements, and prices on farmers, processors, and merchandisers in grain markets throughout the United States.

Professor C. Robert Taylor of Auburn University is concerned that the Department did not adequately consider the extent of vertical integraiton in the agricultural sector. Minnesota and Nebraska Attorneys General Mike Hatch and Don Stenberg and Catholic Charities of Sioux Cit, Iowa voice the same concernin their comments.

Jon Lauck, writing on behalf of the Organization for Competitive Markets (“OCM”), filed a comment that was critical of the Department's analysis in several respects. OCM states that the Department's analysis failed to consider: (1) The impact of concentration in agriculture markets other than grain buying; (2) the continuing potential for anticompetitve behavior in the post-merger market; (3) whether the divested facilities will continue to be competitive forces in the hands of new owners, particularly if the new owners do not have a “network” of elevators that buy grain; (4) the impact on potential entry into grain buying markets; (5) the ramifications of competition in overseas grain markets; (6) the implications of economic disorganization of farmers which can be exploited by powerful buyers; (7) information disparities in agriculture markets; (8) the lack of benefits of the merger; (9) a range of statutes that Congress intended courts to consider when making decisions about agriculture markets; and (10) that the consent decree risks leaving farmers without an effective outlet for legal redress. OCM's conclusion is that the proposal Final Judgment is not an adequate remedy and that the transaction should be prohibited in its entirety.

Several farm, rural-life, and religious groups voice concerns about general levels or market concentration in agriculture industries. These groups include the American Agriculture Movement, Animal Welfare Institute, Clean Water Action Alliance, Farmland Co-op Inc., Institute for Agriculture and Trade Policy (“IATP”), Kansas Cattlemen's Association, Minnesota Catholic Conference, National Catholic Rural Life Conference, and the Office of Hispanic Ministry. In the main, they believe the Department's analysis does not adequately consider concentration in agriculture markets beyond grain buying. In their view, these non-grain markets are already too concentrated, and so Cargill ought not be permitted to acquire Continental under any circumstances.

The Kansas chapter of the National Farmers Organization (NFO) expressed concern about declining grain “basis levels.” Thus, they are concerned that Kansas farmers will receive lower prices for their grain after the transaction. The Kansas NFO did not address the adequacy of the proposed Final Judgment.

National Farmers Union (“NFU”) filed comments opposing the transaction because the transaction does not increase competition in grain markets. NFU also believes the proposed Final Judgment is deficient because it does not ensure that divested facilities will remain competitive. NFU also believes the proposed Final Judgment fails to address the roles played by Cargill and Continental in export markets.

Rural Life Office of Dorchester, Iowa expressed concern that the transaction may facilitate Cargill's exercise of market power in “organic and specialty” markets.

Women Involved in Farm Economics (“WIFE”) is concerned that the transaction as proposed, by unifying the second and third largest grain traders in Nebraska, might depress grain prices to Nebraska farmers and permit Cargill to control their export market. WIFE did not object to the proposed Final Judgment.

IV. The Department's Analysis of the Transaction

We begin our response to public comments with an overview of the legal standards for analyzing mergers and acquisitions, our investigation of Cargill's proposed acquisition of Continental's commodity marketing business, and our analysis of the relevant competitive issues in this case. Thereafter, we respond to specific points raised by commentators.

A. The Relevant Merger Law

Section 7 of the Clayton Act, 15 U.S.C. 18, prohibits mergers and acquisitions whose effect may be substantially to lessen competition “in any line of commerce * * * in any section of the country.” The purpose of Section 7 is to prevent acquisitions or mergers before they create harm. “ ‘The intent here * * * [is] to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding.’ ”

Brown Shoe Co.

United States,

370 U.S. 294, 318 n. 32 (1962) (quoting S. Rep. No. 81-1775 at 4-5).

The antitrust laws apply to the exercise of market power over sellers (monopsony power), just as they do to the exercise of market power over buyers (monopoly power).

See Mandeville Island Farms

American Crystal Sugar Co.

334 U.S. 219, 235-44 (1948) (a case arising under Sections 1 and 2 of the Sherman Act). Section 7, in particular, applies to monopsony power gained via acquisitions or mergers.

See United States

Rice Growers Ass'n of California,

1986 WL 12562 (E.D. Cal. 1986) (acquisition by one miller of another found to lessen competition in purchase of California paddy rice);

United States

Pennzoil Company,

252 F. Supp. 962, 981-985 (W.D. Pa. 1965), (merger found to lessen competition in purchase of Penn Grade crude oil).

As noted in the U.S. Department of Justice/Federal Trade Commission's

Horizontal Merger Guidelines

§ 0.1 (issued 1992, revised 1997): “The unifying theme of the Guidelines is that mergers should not be permitted to create or enhance market power or to facilitate its exercise. Market power to a seller is the ability profitably to maintain prices above competitive levels for a significant period of time * * * Market power also encompasses the ability of a single buyer (a ‘monopsonist’), a coordinating group of buyers, or a single buyer, not a monopsonist, to depress the price paid for a product to a level that is below the competitive price * * *”

To predict whether an acquisition may substantially lessen competition or tend to create a monopoly, the reviewing court must determine: (a) The “line of commerce” or product market in which to assess the transaction, (b) the “section of the country” or geographic market in which to assess the transaction, and (c) the acquisition's probable effect on competition in the product and geographic markets. The probable effect often can be assessed by determining the level of concentration based on the market shares of the parties to the proposed transaction and their competitors in the product and geographic markets.

See United States

Philadelphia National Bank,

374 U.S. 321, 362-63 (1963).

B. Framework for the Department's Competitive Analysis

As the case law suggests, the core issue in competition analysis is whether the proposed transaction likely would create or enhance market power or facilitate its exercise. This investigation focused on both monopoly and monopsony issues (that is, whether Cargill would likely gain market power through its acquisition of Continental's grain trading business in its roles as a seller or as a buyer of grain).

1. Monopoly Analysis

The

Horizontal Merger Guidelines,

which outlines the Department's enforcement policy for horizontal acquisitions and mergers subject to Section 7 of the Clayton Act, define market power in monopoly situations as the ability of a seller profitably to maintain prices above competitive levels (or to reduce quality or service below competitive levels) for a significant period of time.

Horizontal Merger Guidelines

at § 0.1. An acquisition can facilitate the exercise of market power by increasing the likelihood of coordinated interaction among competing firms or by creating a market structure in which firms find it profitable to unilaterally raise prices or reduce output.

See id.

at § 2.

To determine whether the proposed acquisition would create, enhance or facilitate the exercise of market power, Department staff first had to define the markets within Cargill and Continental compete. Under the

Horizontal Merger Guidelines

, a market is defined as a set of products or services within a geographic area such that a hypothetical monopolist could profitably impose a “small but significant and nontransitory” price increase or decrease.

Id.

at § 1.0.

If the evidence shows that a hypothetical monopolist of any given product or service profitably could impose such a price increase, that product or service is defined as the relevant product market.

Id.

at 1.11. If, on the other hand, the evidence shows that a sufficient number of customers would substitute other products or services to make such a price increase unprofitable, those products or services are also included in the product market.

Id.

This process continues until a group of products or services is identified for which a small but significant and nontransitory price increase would be profitable.

Id.

Similarly, if the evidence shows that a hypothetical monopolist of the relevant product or service could impose such a price increase in any given region, that region is defined as the relevant geographic market.

Id.

at 1.21. If, on the other hand, the evidence shows that a sufficient number of customers would switch to products or services provided at locations outside the region to make such a price increase unprofitable, those locations are also included in the geographic market.

Id.

This process continues until a group of locations is identified for which a small but significant and nontransitory price increase would be profitable.

Id.

Once the relevant product and geographic markets are defined, Department staff must evaluate the competitive impact of the proposed acquisition. A merger is likely to be problematic if the merged firms are two of a relatively small number of sellers in the market. Under these circumstances, the merged firm may gain unilateral power to raise prices, or the existence of only a few other firms in the market may facilitate tacit collusion.

2. Monopsony Analysis

As a general proposition, the analysis of competitive issues in monopsony cases is the mirror image of the more common analysis of competitive issues in monopoly cases.

For example, instead of determining whether the merging firms are two of a small number of sellers in the relevant product and geographic market, and whether the merged firm would gain sufficient market power to raise prices to consumers, monopsony analysis focuses on whether the merging firms are two of a small number of buyers in the relevant product and geographic market, and whether the merged firm would gain sufficient market power to depress prices paid to its suppliers. Likewise, instead of determining whether the buyers could defeat an attempt by a monopolist to increase prices by a small but significant and non-transitory amount by switching to alternative products or alternative suppliers, the issue in a monopsony investigation is whether the sellers could defeat an attempt by a monopsonist to depress prices by producing other products or by selling their products to more distant buyers.

As noted in Section 0.1 of the

Horizontal Guidelines:

“The exercise of market power by buyers (‘power’) has adverse effects comparable to those associated with the exercise of market power by sellers. In order to assess potential monopsony concerns, the Agency will apply an analytical framework analogous to the framework of these Guidelines.”

C. Overview of the Department's Analysis of Competitive Issues in This Transaction

1. Background

Cargill and Continental are international grain traders, and so the Department's investigation encompassed grain markets throughout the world. In the course of this investigation, conducted by a team of approximately twenty lawyers, paralegals, and economists, the Department's staff: reviewed over 400 boxes of documents furnished by Cargill and Continental pursuant to our second request discovery procedures; deposed Cargill and Continental executives; reviewed relevant legal and economic literature; consulted with officials of the Department of Agriculture, the Commodity Futures Trading Commission, and state attorney general offices; and interviewed over one hundred farmers, farm organization officials, agricultural economists, grain company executives, and other individuals with knowledge of the industry and competitive conditions.

The Department's staff found that grain typically moves from farms to country elevators, from which it moves to river elevators and rail terminals, and then to domestic purchasers or to port elevators for export to the rest of the world. We found that Cargill and Continental often compete with each other at various stages of their grain distribution networks as they buy, store, distribute, and sell agricultural commodities. Accordingly, the investigation encompassed all aspects of their worldwide grain businesses in order to identify any portions of their respective grain distribution networks where they compete with each other.

In our investigation, we focused on the use of these grain distribution networks to facilitate four different aspects of the grain business:

1. Selling standard grades of grain (Primarily, corn, wheat and soybeans);

2. Selling less widely-traded grain products (super commodities, special commodities, and other niche products);

3. Buying grain; and

4. Providing elevator services at delivery facilities that are designated by the CBOT for the settlement of corn and soybean futures contracts.

As to the first two categories, the investigation indicated that the transaction would not create market power in the sale of these products; and very few of the public comments dealt with these aspects of the grain business. Most of the comments concerned the Department's conclusions on the third and fourth aspects of the Cargill and Continental grain businesses.

2. Analysis of Cargill as a Seller of Standard-Grade Grain Products

Cargill and Continental compete in a national (or international) market in their roles as sellers of standard agricultural commodities. Although they are big grain companies in absolute terms, they have relatively small shares of the output markets in which they compete. One way to assess concentration among grain traders is grain storage capacity.

By this measure of concentration, collectively they had less than eight percent of total U.S. off-farm grain storage capacity—before the divestitures required by the Final Judgment.

Market share data is difficult to obtain and not entirely reliable in this industry. One limitation of this measure of concentration is the “double counting” problem that occurs when a firm handles the same bushel of grain several times—for example, when it buys wheat at a country elevator, transfers it to its rail terminal and subsequently its flour mill, and sells it to a baker.

See section V(B) of this Response.

Food processors, cattle feeders, and other buyers of agricultural commodities rely upon competition among a fairly large number of big grain companies with nationwide grain distribution networks and nearby regional grain companies to ensure competitive prices. Commodity prices tend to be fairly consistent in grain companies' output markets throughout the country when adjusted for transportation costs. With these competitive conditions, it was not surprising that the officials from cereal companies, bakers, and other buyers of wheat, corn, and soybeans whom we interviewed consistently indicated that they thought the transaction would not give Cargill the power to raise prices for standard commodities.

In summary, our investigation determined that the relevant geographic market for grain companies' sale of grain is at least as broad as the national market. With a combined Cargill/Continental share of less than eight percent of that market, it is highly unlikely that this transaction could create or enhance market power for sellers of these commodities to any appreciable degree.

3. Analysis of Cargill as a Seller of Speciality Products

Although we concluded that this transaction would not give Cargill or other grain companies market power as a seller of standard grade grain products, we considered the possibility that Cargill and Continental might be two of a relatively small number of sellers of less widely-traded commodities and that the consolidation of these business might give Cargill market power as a seller of these products. Niche grain products include super commodities (crops with specific characteristics, such as high oil content corn), special commodities (crops that are not widely traded, such as white corn), and organic crops.

Our investigation determined, however, that there are no niche product market sin which Cargill and Continental are two of a relatively small number of competitors. Consequently, we concluded that the transaction will not create opportunities for Cargill to gain sufficient market power to raise the prices on any of the niche products that it sells.

4. Analysis of Cargill as a Buyer of Grain

Although Cargill and Continental compete for the sale of grain in national and international markets, our investigation revealed that they compete for the purchase of grain in relatively small local or regional markets. Shipping grain by truck is relatively costly and time-consuming. Farmers, therefore, tend to truck their grain within limited geographic areas surrounding their farms—usually to buyers who operate nearby country elevators or to buyers who operate river, rail or port elevators if their farms are fairly close to those facilities. Operators of river elevators and rail terminals may transport grain farther distances to buyers who operate port elevators and domestic processing plants—reflecting the relatively low cost of transporting bulk commodities long distances by rail or barge as compared with truck transportation. The draw area of one grain company's country, river, rail or port elevator overlaps the “draw area” of a competing elevator if their facilities are close enough to each other so that the costs of shipping grain to the two elevators are not significantly different.

During the course of our investigation, the Department reviewed every local or regional market in which Continental competed with Cargill for the purchase of grain before the transaction. Department staff began this process by identifying every geographic market in which Cargill and Continental operate facilities with overlapping draw areas.

We then determined how many grain companies other than Cargill and

Continental operated grain elevators in each of those markets and conducted detailed and specific analyses of all of the approximately three dozen local or regional markets that are served by less than twelve grain company elevators. The analysis for each of these geographic markets included interviews of farmers, officials of farm organizations, independent elevator operators, and other people with knowledge of these local and regional markets, determinations of local or regional grain transportation costs, and other relevant information about competitive conditions in these markets. We concluded that sufficient numbers of competitive grain buyers would remain after the consolidation of the Cargill and Continental elevators in most of those local or regional markets to make it highly unlikely that grain companies could gain the power to depress the prices they pay for grain.

At this stage of the process, we eliminated only the Continental elevators that are located so far away from the nearest Cargill elevator that it is inconceivable that the Continental elevator and nearest Cargill elevator might be drawing an appreciable amount of grain from the same farmers.

In nine local or regional markets, however, farmers located within the overlapping Cargill/Continental draw areas depend on competition among Cargill, Continental, and only a few other grain companies to obtain a competitive price for their grain. Cargill's acquisition of Continental's elevators in these markets, therefore, could create sufficient market power to enable the few grain companies competing in those markets to depress grain prices.

Sections VI and VII of the Complaint refer to these overlapping Cargill/Continental draw areas as “captive draw areas.” This term identifies highly concentrated markets in which Cargill and Continental are two of a relatively small number of grain buyers and in which the transaction is likely to create or enhance monopsony market power for: operators of port elevators in the Pacific Northwest port range; operators of port elevators in the central California port range; operators of port elevators in the Texas Gulf port range; operators of river elevators along the Illinois and Mississippi rivers; and operators of rail terminals in the vicinities of Salina, Kansas and Troy, Ohio.

In order to prevent the loss of competition for the purchase of grain that would result from Continental's exit from these markets, the Department insisted that Cargill divest either its elevator or Continental's elevator in the markets to a new entrant who would operate the facility as a grain elevator and compete for the purchase of grain from farmers in the facility's draw area. Cargill and Continental have divested, or are in the process of divesting, the following facilities:

Continental Facilities

Acquirer

Lockport, IL river elevator

Louis Dreyfus Corporation.

Caruthersville, MO river elevator

Louis Dreyfus Corporation.

Salina, KN rail elevator

Declined to renew its lease.

Troy, OH rail elevator

Mennel Milling Company

Beaumont, TX port elevator

Louis Dreyfus Corporation.

Stockton, CA port elevator

Penny Newman Grain Co.

Birds Point, MO river elevator

Terminated minority interest.

Cargill Facilities

Acquirer

East Dubuque, IL river elevator

Consolidated Grain & Barge.

Morris, IL river elevator

Louis Dreyfus Corporation.

Seattle, WA port elevator

Louis Dreyfus Corporation.

The proposed Final judgment does not require a divestiture of the Birds Points facility since Continental terminated its minority interest in that facility before the execution of that settlement agreement.

5. Analysis of Cargill as an Operator of River Elevators Designated by CBOT for Settlement of Futures Contracts

Our investigation indicated that the acquisition would give Cargill and one other firm approximately 80% of the authorized delivery capacity for settlement of CBOT corn and soybeans futures contracts. In the light of these market shares and other market information, we determined that Cargill's acquisition of Continental would make it easier for Cargill unilaterally, or in coordination with the few remaining firms in the corn and soybean futures markets, to manipulate corn and soybean futures contracts in violation of section 7 of the Clayton Act.

The divestitures of Continental's Lockport river elevator and Cargill's Morris river elevator are needed to prevent the loss of competitors that otherwise would have occurred as a result of consolidation among operators of delivery facilities authorized for the settlement of CBOT corn and soybean futures contracts. Further divestitures required by the Final Judgment to remedy these concerns include Continental's Chicago port elevator and one-third of the capacity of Cargill's river elevator at Havana, Illinois.

6. Summary of the Department's Competitive Analysis

In summary, the Department found that Cargill's acquisition of Continental's Commodity Grain Marketing Group, as originally structured, would violate the antitrust laws. Cargill's acquisition of grain elevators in nine local or regional markets in which there are relatively small numbers of elevators operated by other grain companies would have created or enhanced the ability of grain companies to exercise monopsony powers in those geographic markets. Cargill's acquisition of Continental's CBOT-authorized delivery points would have resulted in undue concentration of these facilities and increased opportunities for manipulations of CBOT futures markets. And, the non-compete provision of the Cargill/Continental agreement would have harmed competition by unduly restricting Continental's right to re-enter the grain trading business in the future.

The Department has concluded that the restructuring of the transaction as required by the proposed Final Judgment resolves these competitive concerns. The divestitures required by the Final Judgment should preserve the competitive conditions that existed before the acquisition and ensure that farmers in the affected markets will continue to have effective alternatives to Cargill when selling their crops. The entry of new operators of CBOT-authorized delivery stations should prevent manipulation of CBOT corn and soybean futures markets. And, the requirement that the non-compete provision of the Cargill/Continental agreement remain in force for no more than three years should ensure that Cargill does not preclude continental's re-entry into the grain distribution business for longer than is required to give Cargill a fair opportunity to gain the loyalty of former Continental suppliers and customers.

V. The Department's Responses to Specific Comments

We now turn to the comments that raise questions about our analysis or that suggest relief different or supplemental to that contained in the proposed Final Judgment. Copies of this Response without appendix are being mailed to all who filed comments.

A. Remedy

Several commentators questioned whether the acquirers of the divested facilities would be competitive.

The proposed Final Judgment sets forth procedures designed to ensure that the firms that acquire the divested facilities will vigorously compete to buy grain from farmers in their geographic markets.

Minnesota Attorney General Mike Hatch, South Dakota Attorney General Mark Barnett, National Farmers Union, and Western Organization of Resource Councils.

Pursuant to the proposed Final Judgment, Cargill and Continental provided widespread notice of the availability of the facilities that they were required to divest in newspapers

of general circulation, provided appropriate information concerning these facilities to prospective acquirers, and submitted reports to the Department concerning these inquiries and subsequent negotiations. They received over one hundred written expressions of interest in the facilities to be divested,

and now have entered into definitive agreements to divest all of the facilities that they were required to transfer to new entrants under the terms of the Final Judgment.

As a further indication of widespread interest in the divested facilities, the number of potential acquirers who obtained detailed information pursuant to confidentiality agreements ranged from thirteen (for the Seattle port elevator) to twenty-one (for the Morris and Caruthersville river elevators).

To ensure that the new entrants have the capability to compete with Cargill and other incumbent grain companies in their markets, the United States reviewed the proposed divestiture agreements, obtained further information from the proposed acquirers, and conducted an independent investigation into the background and capabilities of the proposed acquirers. Under the Final Judgment, the United States has the sole right to disapprove any prospective acquirer if it concludes that the proposed acquirer might not operate the divested facility as part of a viable, ongoing business. The Department's investigation indicated that each of the proposed acquirers has the financial capability, expertise, and incentive to become a vigorous, independent competitor in the relevant market. Louis Dreyfus and Consolidated Grain & Barge are major grain companies who will use these acquisitions to expand into markets that they do not presently serve. Mennel and Penny Newman are smaller, but they are experienced grain traders who presented sound business plans for assimilating the Troy rail elevator and Stockton port elevator in their respective grain distribution businesses.

In summary, the divested facilities will be controlled by new entrants with the background, expertise, and incentive to compete effectively for the purchase of grain produced in these markets. With these divestitures, therefore, it is not likely that this transaction will create or enhance the exercise of market power by Cargill or other grain companies enabling them to depress prices paid to farmers for their crops in any market.

Antitrust relief should “ ‘cure the ill effects of the illegal conduct, * * * assure the public freedom from its continuance,’ * * * and it necessarily must ‘fit the exigencies of the particular case.’ ”

See Ford Motor Company

United States,

405 U.S. 562, 575 (1972) (quoting

United States

United States Gypsum,

340 U.S. 76, 88 (1950)) and

International Salt Co.

United States,

332 U.S. 392, 401 (1947)). The proposed Final Judgment meets these criteria by preserving competition in domestic grain markets, as it existed prior to the transaction. In the absence of any evidence to indicate that the transaction raises antitrust concerns elsewhere, there is no basis for prohibiting Cargill “from acquiring any other direct competitors in grain export, transport, and storage markets,” as suggested by Minnesota Attorney General Mike Hatch. If Cargill were to attempt to acquire competitors in additional markets, the Department will have the opportunity to investigate those acquisitions and to seek remedies for any transactions that violate the antitrust laws.

For the divestitures required to forestall undue concentration among firms who control river elevators designated for the settlement of CBOT corn and futures contracts, the Department insisted on additional criteria. We required that the proposed acquires (Louis Dreyfus at Morris and Lockport, NIDERA at Chicago, and Prairie Central at Havana) demonstrate that they satisfy all requirements for obtaining CBOT designation as an authorized delivery point (including CBOT's financial standards) in addition to the criteria established for the other divestitures.

Turning to one specific local market, Congresswoman Jo Ann Emerson, several farm groups, and one individual farmer in southeastern Missouri cautioned against allowing Bunge Corp, to acquire the Continental river elevator at Caruthersville (Cottonwood Point), Missouri because Bunge is already one of the major grain buyers in that local market.

The United States agrees with their analysis. Bunge will not acquire that facility; instead it will be acquired by Louis Dreyfus.

Missouri Farm Bureau Federation, Missouri Soybean Association, Pemiscot County Farm Bureau, and Clyde Southern.

B. Market Definition

Several commentators argue that the United States failed to recognize that Cargill and Continental operate on a national scale and to realize that this transaction would concentrate the national grain market for the purchase and sale of grain.

We believe that we used the correct market definitions in our competitive analysis.

Nebraska Attorney General Don Stenberg, South Dakota Attorney General Mark Barnett, National Farmers Union, WIFE, and Reena Kazmann.

Under standard antitrust analysis (as applied to monopsony cases), we determine the boundaries of relevant geographic markets by determining whether it would be profitable for the only buyer of grain in the geographic market to depress the price that farmers receive for their grain by a small, but significant, and non-transitory amount. In this case, the farmer's alternatives when he looks for buyers of his crops include the closest grain buyer and other buyers located relatively near the closest buyer.

In most markets, we found that the additional trucking costs would preclude farmers from shipping their crops more than about twenty to thirty miles beyond the nearest grain elevator to get a small, but significant, increase in the price paid for his grain.

The cost of shipping grain from farm to grain elevator is more relevant than the distance from farm to grain elevator, but cost and distance are roughly proportionate to each other in most cases.

In this case, therefore, it was appropriate to focus our monopsony analysis on local or regional markets consisting of areas in which: (a) Cargill and Continental had elevators that were close enough to each other to compete for the purchase of grain originating in their overlapping draw areas; and (b) there were a relatively small number of competitors near enough to the Cargill and Continental facilities to be reasonable outlets for farmers located in the overlapping Cargill/Continental draw areas. These are the markets in which the transaction could create market power if too few competitors remained after Cargill acquired nearby Continental grain elevators.

Our investigation began with an examination of all local or regional markets in which Cargill and Continental operated grain elevators that were close enough together to compete for the purchase of grain from the same farmers. After eliminating the local or regional markets served by relatively large numbers of other grain company elevators, we found that Cargill and Continental were two of a relatively small number of grain companies who competed for the purchases of grain in nine local or regional markets and concluded that the transaction would have created monopsony market power in those markets.

Not one of the comments that we received indicated that we overlooked a specific local or regional market in which the transaction was likely to create competitive problems. Instead, the commentators who said that we overlooked a relevant geographic market directed our attention to national, international or export markets.

If the relevant geographic market were nationwide, we would have been forced to conclude that the transaction is not likely to lessen competition among grain buyers. Using total U.S. off-farm grain elevator capacity as a measure of market share in the grain distribution industry, Cargill had about a 5.7% share of the market and Continental about 1.2%

before the transaction (and before the combined capacity was reduced by the divestitures required under the Final Judgment).

The combined share of less than eight percent of the market is far below any appropriate threshold for suggesting that this transaction is likely to significantly lessen competition among grain buyers. Thus, the combined Cargill/Continental share of the national grain market masks the anticompetitive effects of this transaction, as originally structured, at the local or regional level.

The

1999 Grain & Milling Annual

estimates total U.S. off-farm grain storage capacity to be 7,938,190,000 bushels.

Id.

at 7. Cargill had total capacity of 452,399,560 bushels; Continental 169,346,000 bushels.

Id.

at 21, 22. The combined Cargill/Continental capacity is 7.83% of total U.S. off-farm grain storage capacity.

Other commentators suggest that the U.S. grain export market may be a relevant market.

Cargill and Continental are two of the United States' largest agricultural exporters (with combined export market shares of about 40% for corn, 30% for soybeans, and 25% for wheat); but, U.S. export market shares are not meaningful indications of concentration in any relevant grain output market.The customers for Cargill and Continental U.S. grain exports (

i.e.,

grain buyers in foreign countries) rely on competition among relatively large numbers of U.S. and foreign grain sellers. These sellers include Cargill, Continental, other big international grain traders, such as Bunge, Louis Dreyfus, Peavey (a division of ConAgra), and ADM, smaller regional grain traders, and (in most cases) their own domestic producers. With such large numbers of competing sellers in these markets, it is not likely that this transaction will create or enhance monopoly market power.

Nebraska Attorney General Don Stenberg, South Dakota Attorney General Mark Barnett, National Farmers Union, and WIFE.

Cargill and Continental port elevators were a major focus of our investigation, but not because of their impact on buyers in foreign markets. We devoted substantial efforts to the investigation of this level of the Cargill and Continental grain distribution networks because: (a) In several port ranges, they compete with each other for the purchase of grain from farmers and other suppliers in their port elevators' overlapping draw areas; and (b) there are relatively small numbers of other grain companies in some of those port ranges. In fact, we found competitive problems requiring the divestiture of four of Continental's six port elevators.

C. Cargill's Power Over Price

Many of those who file documents are concerned that Cargill may have the power to depress grain prices paid to farmers after it acquires Continental.

We too had that concern, and as explained in section IV of this memorandum, we concluded that the acquisition as originally proposed would have adversely affected farmers in local or regional markets who had no reasonable choice but to sell their grain to Cargill, Continental, and only a few other grain companies. As explained in section V(A) of this memorandum, the divestitures required by the proposed Final Judgment protect those farmers. Only if the Court were not to require the divestitures set forth in the proposed Final Judgment would grain companies gain the power to depress prices paid to farmers and other suppliers in these markets.

Nebraska Attorney General Don Stenberg, South Dakota Attorney General Mark Barnett, Animal Welfare Institute, National Catholic Rural Life Conference, and Office of Hispanic Ministry, Greta Anderson, Vivian Anderson, Kay Barnes, Isabelle Barth, Mary Beckrich, Amanda Bray, Loris von Brethorst, Marilyn Borchardt, Mike Callicrate, G.M. Carlson, Mary Casserand, Laurie Chancellor, Donald B. Clark, Roger and Shari Cummings, Peggy B. Daugherty, Lyman and Darline Denzer, Steve Dewell, C.K. Dresae, Llewellyn and Karen Engelhart, Dan and Judy Gotto, Bob Gregory, Mary Hargrafen, Minnesota AG Mike Hatch, Veron E. Heim, John W. Helmuth, Barbara Hook, Jeff Horejsi, Robin Kleven, Riley Lewis, Todd Lewis, Lawrence Marvin, Margot Ford McMillen, Darlene Milbradt, Winton Nelson, Jennifer Poole, Rae Powell, Lois Shank, Lyle D. Spencer, Ellen Stebbins, Elenor Steburg, Daniel J. Swartz, and Professor C. Robert Taylor.

A.V. Krebs posed the question whether farmer and others who deal with Cargill will be forced to conform to Cargill's standards for marketing grain after the acquisition. The answer is no. The proposed Final Judgment ensures that the transaction will not create or enhance the ability of Cargill to exercise market power in domestic grain markets. Absent market power, Cargill cannot impose its will on the firms with whom it does business.

Several individual farmers and the National Farmers Union oppose the acquisition because it will not have the effect of increasing prices or competition in grain markets. The goal of antitrust is to prevent transactions that would reduce existing competition. The antitrust laws provide no legal basis for using the power to challenge proposed mergers to

increase

competition in any market.

D. Futures Markets

Several comments stated that the United States failed to consider the impact of the transaction on futures markets.

In fact, we devoted considerable attention to that issue. Our analysis of the futures issue included reviews of all agricultural futures markets and economic literature on the subject, interviews of farmers, farm organization officials, grain company executives, and other people who rely on futures markets, and extensive consultations with officials from the Commodity Futures Trading Commission (CFTC).

Minnesota Attorney General Mike Hatch, John W. Helmuth, and Keith Mudd.

We concluded that the transaction, as originally structured, would have given Cargill and Archer Daniels Midland Co. (ADM) approximately eighty percent of the delivery capacity for the settlement of CBOT corn and soybean futures contracts, thereby increasing opportunities for manipulation of those futures markets. Under the transaction, as originally structured, Cargill would have acquired eight Continental elevators that were authorized to accept deliveries for the settlement of CBOT corn and soybean futures contracts. The proposed Final Judgment requires the divestiture of three CBOT-authorized delivery stations on the northern portion of the Illinois river—Continental's port elevator at Chicago, Continental's river elevator at Lockport, and Cargill's river elevator at Morris. In addition, Cargill is required to make one-third of its loading capacity at a fourth facility—its Havana river elevator—available to an independent grain company under a throughput agreement in order to gain an additional facility on the southern portion of the Illinois River for the settlement of soybean futures contracts.

During our review of the divestitures proposed by Cargill and Continental, we reviewed the prospective acquirers' backgrounds to ensure that they had the requisite financial and operational capabilities and incentives to become vigorous independent competitors. In cooperation with officials from the CFTC, we also obtained credible assurances that the acquirers could obtain CBOT authorization to accept deliveries in settlement of corn and soybean futures contracts. The Department concluded that the divestitures will leave sufficient CBOT-authorized delivery capacity in the control of firms other than Cargill and ADM to protect against manipulation of CBOT corn and soybean futures markets.

E. Specialty Markets

Several commentators indicated that the United States failed to consider whether the transaction would enable Cargill to monopolize speciality or niche commodity markets.

As noted in section IV(B)(3) of this Response, we did study this issue, but our investigation

produced information showing that the transaction would not create or enhance market power in any markets for the purchase or sale of niche products (including super commodities, special commodities, and organic grain products).

Minnesota Attorney General Mike Hatch, Rural Life Office, Office of Hispanic Ministry, and Roger and Shari Cummings.

In summary, our investigation uncovered no niche product market in which Cargill and Continental were two of a relatively small number of buyers or sellers. Our investigation, which encompassed all niche products handled by either Cargill or continental, revealed that either: (a) They did not compete with each other before the transaction or (b) there were sufficient numbers of other grain companies in the market to deny Cargill the opportunity to gain monopoly or monopsony market power.

F. Nebraska Grain Markets

Several members of the WIFE organization in Nebraska expressed concern about the ability of Cargill to depress prices paid to Nebraska farmers. As mentioned previously, the main focus of our competitive analysis was to determine whether the transaction was likely to create sufficient market power for Cargill to depress prices paid to farmers in any local or regional market. Since our preliminary investigation identified several markets in Nebraska in which Cargill and Continental compete for the purchase of grain, we devoted considerable attention to local markets within he state. After conducting numerous interviews with farmers and farm organizations in those areas, calculating local grain transportation costs, and considering other relevant competitive data, however, we concluded that there were no local markets in Nebraska in which Cargill and Continental were two of a relatively small number of competitors for the purchase of grain. In each Nebraska market where Cargill and Continental compete with each other for the purchase of grain, we found that there were sufficient numbers of alternative nearby buyers remaining after the Cargill/Continental consolidation to defeat any attempt by grain companies to depress prices paid to farmers in those areas. Accordingly, we did not seek divestitures of any grain elevators in Nebraska.

G. Concentration in Other Agriculture Markets

Some comments express concern over concentration in markets other than grain—for example, markets pertaining to beef and pork packing, cattle feedlots, broiler and turkey production, animal feed plants, flour and corn milling, soybean crushing, and ethanol production.

The comments suggest that the Department's analysis of the Cargill transaction may be deficient because it fails to give due consideration to these and other agriculture markets.

Nebraska Attorney General Don Stenberg, AAM Inc., Clean Water Action Alliance, IATP, Kansas Cattlemen's Association, and Minnesota Catholic Conference, Marilyn Borchardt, John W. Helmuth, and Richard and Margene Eiguren.

The Department disagrees. No facts have arisen that lead us to believe that Cargill's acquisition of Continental will harm competition in markets other than those identified in the Complaint.

The Department filed the Complaint and entered into the proposed Final Judgment after an extensive investigation. During this investigation, we examined competition and the likely effects of the transaction in every market where both Cargill and Continental provide competing products or services. We focused on the grain and grain futures markets alleged in the Complaint because these are the markets in which Cargill and Continental compete with each other and the markets in which competition could diminish after this transaction.

We are aware of other agribusiness industries in which one or both firms operate—including beef and pork packing, broiler and turkey production, flour and corn milling, soybean crushing, cattle feedlots, animal feed plants, and ethanol—but none of these industries is affected by the transaction since Continental is not selling its processing division to Cargill. Having carefully reviewed the facts, the Department has found no reason to believe that the transaction would have an adverse impact on competition in markets other than the grain markets alleged in the Complaint.

H. Ban on All Agribusiness Mergers

Some commentators suggest that current concentration levels in agriculture markets justify an absolute ban on mergers and acquisitions in the agriculture sector.

The antitrust laws provide no legal basis for such a ban, and the Department has no power to prevent the consummation of any transaction except to prevent or cure specific violations of the antitrust laws. Section 7 of the Clayton Act is the principal federal statutory provision dealing with mergers and acquisitions and, as explained above, it prohibits transactions that may harm competition in specific markets. Concentration levels are an important part of the analysis, but the ultimate test under Section 7 is whether the acquisition may tend to substantially lessen competition and that is the showing we must be prepared to prove in court, based on the facts in any given case.

May Beckrich, Dick Lundebreck, David Olson, and Professor C. Robert Taylor.

I. Vertical Integration

Several commentators express concern about a trend toward vertical integration in agricultural industries, and they ask if the Department gave due consideration to that trend.

The Department is aware that some agricultural sectors are experiencing an increase in vertical integration. While a trend toward integration can be anticompetitive in certain circumstances, we did not find that such concerns are presented by the Cargill-Continental transaction.

South Dakota Attorney General Mark Barnett, AAM Inc., Animal Welfare Institute, Catholic Charities, Clean Water Action Alliance, Jan Lundebrek, David Olson, and Professor C. Robert Taylor.

Vertical integration occurs when several stages of production, processing, distribution, and marketing are brought together in one firm. In broilers, for example, many of the big firms are involved in breeding, hatching, growing, processing, and packaging activities. Vertical integration also appears to be increasing in other agricultural sectors.

In many circumstances, vertical integration is actually procompetitive, allowing firms to reduce their costs.

See

Herbert Hovenkamp,

Federal Antitrust Policy, The Law of Competition and Its Practice,

332-36 (1994). However, there may be circumstances in which vertical mergers raise antitrust concerns, usually by either increasing barriers to entry, facilitating collusion or circumventing regulation.

Id.

at 346-48.

Since the Cargill-Continental transaction is a horizontal, rather than vertical, acquisition, it does not raise significant vertical issues. The Department did not uncover evidence suggesting that the transaction, as restructured, would have anticompetitive effects at any level in the production chain or result in an increase in vertical integration that would be competitively problematic. In short, the Department was aware of, and did consider, trends toward vertical integration in various agricultural sectors, but concluded that such trends did not provide a basis for seeking broader relief with respect to this transaction.

J. Non-economic Concerns

North Dakota Attorney General Heitkamp urges the Department to go beyond antitrust analysis and give greater consideration to unspecified

“non-economic concerns.” While she does not say so directly, Attorney General Heitkamp may be suggesting that the antitrust laws be used to preserve family farms.

Our prosecution of this matter protects the interests of all farmers, large and small. The proposed Final Judgment is designed to eliminate the risk that Cargill's acquisition of Continental will lessen competition anywhere in the United States. Department staff first identified all markets in which Cargill and Continental are competitors, and then, in every one of these markets, assessed the extent to which the acquisition raises concerns about a loss of competition that would cause competitive problems. Ultimately, we identified nine relevant markets in which farmers were likely to be adversely affected by the creation of monopsony market power that would enable Cargill and other grain companies to depress grain prices. Through divestitures, the proposed Final Judgment resolves those concerns. In addition, the Final Judgment protects against the exercise of market power to manipulate corn and soybean futures prices and limits a non-compete clause that otherwise would have prevented Continental from re-entering the grain distribution business.

As far as our investigation was able to determine, there are no other potential adverse competitive effects likely to arise from the acquisition. The proposed Final Judgment therefore protects sellers of grain throughout the United States from the price depressing effects that otherwise could have been caused by the acquisition. This outcome is beneficial to farmers of every size, including small family farmers.

K. Administrative and Legislative Actions

New Mexico Attorney General Madrid has no opposition to the proposed Final Judgment. Rather, her comment urges the Department to advocate administrative and legislative actions that will invigorate competition in agriculture markets.

The Antitrust Division of the Department of Justice testifies before Congress on antitrust matters and prepares written reports stating the views of the Department on pending or proposed legislation pertaining to antitrust. Division attorneys also participate in administrative proceedings that require consideration of the antitrust laws or competition policies. In these situations, the Division often is the government's principal advocate of competition. Therefore, Attorney General Madrid can be sure that whenever the opportunities present themselves—in legislation, administrative proceedings or elsewhere—the Department will continue to promote competition in agriculture markets.

L. The OCM Comments

OCS's comments indicate that it is dissatisfied with the action taken by the Department of Justice. Apparently, OCM thinks the complaint and proposed Final Judgment are too modest to deal with Cargill's dominance, as perceived by OCM, in numerous agriculture markets throughout the world. OCM's comments thus “reach beyond the complaint, to evaluate claims that the government did not make and to inquire as to why they were not made.”

See United States

Microsoft Corp.

, 56 F.3d at 1459. By doing so, OCM invites the court improperly to intrude on the government's prosecutorial role.

See id.

On the merits, many of OCM's comments in opposition to the Department's analysis are answered by the CIS itself, the rationale of which OCM has not addressed. Rather than repeat the CIS here, we briefly deal with OCM's principal objections with appropriate references to relevant explanations in the CIS or elsewhere in this Response.

In a separate filing, Nebraska Attorney General Don Stenburg shares OCM's concerns as they are set out in points 4, 5, 6, 8, and 9 of this section.

1. DOJ Failed To Consider the Wider Concentration in Agricultural Markets Beyond Grain Buying

In addition to its grain trading operations, Cargill has significant presence in beef packing, cattle feedlots, pork packing, broiler and turkey production, animal feed plants, flour and corn milling, soybean crushing, and ethanol production. OCM believes that Cargill transfers resources between these markets according to prevailing economic conditions.

In OCM's view, these transfers are bound to increase after the transaction and, in some manner, enhance Cargill's power regardless of its economic performance.

OCM refers to these transfers of resources between markets as “cross-subsidization,” and claims that they make diversified firms “even more capable of * * * anti-competitive behavior.“ OCM at 2-3.

The appropriate question for antitrust purposes, however, is whether, by transferring its own assets across industry lines as it sees fit in response to changing economic conditions, Cargill's ability artificially to depress prices will increase. OCM does not explain how such transfers could actually injure competition, and the Department is not aware of any plausible theories.

2. DOJ Failed To Consider the Continuing Potential for Anticompetitive Behavior in the Post-Merger Market

OCM is concerned that the proposed Final Judgment may not preserve competition in the relevant markets. We address this concern in the CIS at pages 9-17 and in section V(A) of this memorandum.

3. DOJ Failed To Show That the Divested Remnants of Continental Will Be a Competitive Force Absent a Large Network of Elevators That Buy Grain

OCM questions whether the divested grain elevators will be operated by effective competitors if the acquirers do not operate a large-scale network of facilities. This comment also goes to the issue of relief, which we address in section V(A) of this memorandum.

In addition to the points discussed in that section, we note that operators of river elevators and rail terminals who do not have extensive distribution networks in their facilities' draw areas do not have to buy their grain from Cargill or other national grain companies—they can buy from farmers and local or regional operators of country elevators in those markets. Likewise, operators of port elevators who do not have extensive inland distribution networks can buy grain from independent operators of river elevators and grain terminals in their facilities' draw areas. On the basis of these facts and other information that we learned about the acquirers and competitive conditions in the markets where the divested facilities are located, we concluded that all of the acquirers of the divested facilities are likely to be viable and effective competitors as a result of the elevators that they are acquiring.

4. DOJ Failed To Consider the Impact on Potential Entry Into Grain Buying Markets

OCM suggests that Continental should be held together because it is one of the few firms that has the potential to challenge Cargill in markets that Cargill now dominates, citing

United States

Penn-Olin Chemical Co.,

378 U.S. 158 (1964), for that proposition. The teachings of

Penn-Olin

do not apply to the facts in this case.

Penn-Olin

, the Supreme Court considered the legality of a joint venture between two chemical companies to build a sodium chlorate plant. Although the joint venture would have added a

sodium chlorate producer to the market, the Court remanded the case with instructions that the district court consider “the reasonable probability that either one of the corporations would have entered the market by building a plant, while the other would have remained a significant potential competitor.”

Id.

at 175-76. The Court's rationale was that “[t]he existence of an aggressive, well equipped, and well financed corporation engaged in the same or related lines of commerce waiting anxiously to enter an oligopolistic market would be a substantial incentive to competition which cannot be underestimated.”

Id.

at 174.

Penn Olin

thus concerns the protection of the present competitive force of a likely potential entrant—a firm perceived as a likely entrant by those in the market. That is not our concern in this case because Continental is presently in the market. We are concerned with the protection of

actual competition

in grain markets throughout the United States. As explained at pages 9-17 of the CIS and in section V(A) of this memorandum, the proposed Final Judgment fully addresses this concern by divesting Continental's assets to new, independent competitors in the markets, who can ensure that farmers receive a competitive price for their grain after the transaction.

5. DOJ Failed To Consider the Nature of Grain Selling Markets

It is true, as OCM suggests, that a lessening of competition in world grain markets could have an adverse effect on competition within the United States. Therefore, contrary to OCM's assertion, we did assess Cargill's acquisition of Continental in the light of market conditions throughout the world.

Our investigation revealed that numerous firms sell to buyers in foreign countries—including big international grain traders (such as Cargill, Bunge, ADM, Peavey, and Louis Dreyfus), smaller regional grain traders, and domestic producers in most foreign countries. These numbers suggest that overseas markets will remain unconcentrated, even after Cargill acquires Continental. Acquisitions in unconcentrated markets rarely have adverse competitive effects, and OCM provides no evidence to the contrary.

As noted in section IV(B)(4) of this Response, our investigation did indicate competitive problems at U.S. export facilities because Cargill and Continental were two of a relatively small number of grain buyers in the relevant port ranges, not because Cargill and Continental were two of a relatively small number of grain sellers in any overseas market.

6. DOJ Failed To Consider the Economic Disorganization of Farmers Which Can Be Exploited by Powerful Buyers

Many thousands of farmers produce corn, wheat, and soybeans in the United States. As grain leaves their farms, however, the number of firms that buy grain from the farmers becomes much smaller. OCM says this disparity “creates a rationale for scrutinizing the power of buyers relative to sellers.” We agree with OCM on this point; its assertion that we ignored buyer power in our analysis is simply incorrect.

If there is one theme that unifies our analysis, it is that Cargill's acquisition of Continental should not be permitted to create or enhance market power or to facilitate its exercise. CIS at 4-9;

see also

section IV(B) of this memorandum. Market power in this case means the ability of Cargill, as a buyer, to depress the price it pays for grain.

See

section IV(B)(4) of this memorandum. During the course of our investigation, we located every grain market in the United States in which it appeared likely that Cargill could depress prices as a result of the acquisition—and we obtained appropriate relief to address that concern. See

id.

at section V(A).

As noted in section V(B) of this Response, no commentator suggested that we failed to require divestitures in any specific local or regional market in which Cargill and Continental are two of a relatively small number of grain buyers.

In short, the Department has not ignored the “power of buyers” that concerns OCM. Rather, we now recommend entry of the proposed Final Judgment, which will ensure that this transaction does not give Cargill the opportunity to exercise monopsony power over farmers anywhere in the United States.

7. DOJ Failed To Consider Informational Disparities in Agricultural Markets

OCM does not explain how Cargill's acquisition of Continental will exacerbate informational disparities that may exist in agriculture markets. To the extent that Cargill or other grain merchants have the benefit of information that may be in some sense superior, there is no evidence that such information will improve after the transaction so as to lessen competition. Assuming information disparities could be the predicate for a Section 7 violation, they are not exacerbated by the transaction.

8. DOJ Failed To Explain the Benefits of the Merger

OCM's argument that we should explain the efficiencies in order to justify our “approval of the merger,” OCM comment at 8, suggests that it misunderstands the role of the Department of Justice in reviewing mergers subject to the antitrust laws. The Department does not approve mergers. Rather, the Department reviews the particular facts and circumstances of each proposed merger in order to determine whether the merger is likely to substantially lessen competition. If the Department determines that a proposed merger is likely to lessen competition in violation of the antitrust laws, we seek an injunction from the court to prohibit the transaction.

As the Complaint and CIS make clear, the Department challenged this merger in its original form as being in violation of Section 7 of the Clayton Act. The Department did not rely upon any asserted “efficiencies” as a defense to allow Cargill to acquire Continental facilities in any relevant market in which we concluded that the transaction would otherwise tend substantially to lessen competition. The Department agreed to settle only after Cargill and Continental agreed to be bound by the terms of the proposed Final Judgment, which has the effect of substantially altering the terms of the merger to ensure that the transaction will not give grain companies market power to depress grain prices in any relevant market in the United States.

9. DOJ Failed To Consider a Range of Statutes That Congress Intended Courts To Consider When Making Decisions About Agriculture Markets

OCM refers at some length to the Packers and Stockyards Act, the Capper-Volstead Act, and the Agricultural Fair Practices Act. OCM then concludes that “mergers or other activities that enhance the power of buyers” require careful review under the antitrust laws, especially when farmers are involved.

See

OCM comment at 12. The United States carefully investigates

all

mergers that may create substantial competitive harm affecting any group, including farmers. As the CIS and this Response make clear, the Department's concern for Cargill's power as a buyer of grain from farmers has been central to our analysis, prosecution, and proposed remedy in this case.

10. DOJ Failed To Consider That the Consent Decree Risks Leaving Farmers Without an Effective Outlet for Legal Redress

OCM believes that the court of Appeals for the District of Columbia Circuit has “severely restricted” the ability of the district court to determine whether the proposed Final Judgment is in the public interest as required by the

APPA.

See

OCM comment at 13. For that reason, OCM is concerned that the interests of midwestern farmers may not be fully considered in this federal circuit.

There is no reason to believe that the District Court for the District of Columbia cannot make the public interest determination that is required by law in this case.

M. A Hearing Is Unnecessary in This Case

Nebraska Attorney General Stenberg urges the Court to appoint a special master “to hear evidence and to make a recommendation to the court as to the efficacy” of the proposed Final Judgment prior to its entry.

See

Brief of the Attorney General of Nebraska as Amicus Curiae at 13-14. The APPA provides that the Court must make a determination that entry of the proposed consent judgment is in the public interest before entering that judgment. The statute provides that in making such a public interest determination, the Court “may”,

inter alia,

appoint a special master, conduct proceedings involving the taking of testimony and documentary evidence, and “take such other action in the public interest as the court may deem appropriate.” 15 U.S.C. 16(f)(5). The statute does not require the Court to hold hearings, but directs the court to take such action as it deems appropriate.

As noted in section II of this memorandum, Congress, in passing the APPA, intended that consent decrees remain a viable antitrust enforcement option. They could not remain viable if it were necessary for a reviewing court to conduct a trial for a

de novo

determination of factual issues relevant to the adequacy of a proposed decree. The legislative history is clear that the court need not conduct the equivalent of a trial on the merits, or even conduct a hearing or take evidence, S.Rep. No. 298-93 at 6 (1973):

The Committee recognizes that the court must have broad discretion to accommodate a balancing of interests. On the one hand, the court must obtain the necessary information to make its determination that the proposed consent decree is in the public interest. On the other hand, it must preserve the consent decree as a viable settlement option. It is not the intent of the Committee to compel a hearing or trial on the public interest issue. It is anticipated that the trial judge will adduce the necessary information through the least complicated and least time-consuming means possible. Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, this is the approach that should be utilized. Only where it is imperative that the court should resort to calling witnesses for the purpose of eliciting additional facts should it do so.

This passage is quoted in

United States v. Associated Milk Producers, Inc.

, 394 F. Supp. 29, 45 (W.D. Mo. 1975),

aff'd,

534 F.2d 113 (8th Cir. 1976),

cert. denied sub non. National Farmers Org., Inc. v. United States,

429 U.S. 940 (1976) (hereafter “AMPI”).

The expeditious procedures to determine the public interest that Congress envisioned are not possible without reliance upon the Department's good faith execution of its prosecutorial discretion. Evidentiary hearings, therefore, should be used only in extreme cases.

See United States

G. Heileman Brewing Co.,

563 F. Supp. 642, 652 (D. Del. 1983) (“This preference for the comment procedure over more burdensome forms of third-party participation * * * is clearly shown by the legislative history of the APPA.”).

In the instant case, an evidentiary hearing would be inordinately time consuming and would not in any way further the Court's understanding of facts relevant to the determination it must make. There has been no claim of bad faith or malfeasance on the part of the United States in settling this case.

See AMPI,

394 F. Supp. at 41, and cases cited. Nor has Attorney General Stenberg explained why he has not been able to fully apprise the Court of his concerns in the comments he has already filed with respect to the proposed Final Judgment.

See Heileman Brewing Co.,

563 F. Supp. at 653.

The Court need only consider the proposed Final Judgment as explained by the CIS, the comments thereon, and this Response thereto. Such consideration will amply demonstrate that the proposed Final Judgment satisfies the public interest standard of the APPA as interpreted by the courts.

N. The 60-Day Comment Period Should Not Be Extended

Several commentators request that the time period for filing public comments be extended.

There is no need for such extension.

Animal Welfare Institute, NFO Kansas, OCM, Insabelle Barth, Mary Casserand, Steve Dewell, Grant and Mabel Dobbs, Barbara Hook, Jay Godley, Todd Lewis, Glenn Oshiro, N. Ramsey, Ellen Stebbins, Giles Stockton, Dr. Frankie M. Summers, Dennis and Janice Urie.

The 60-day public comment period specified in 15 U.S.C. 16(b) commenced on August 12, 1999 and terminated on October 12, 1999; but we have considered and responded to every comment that we received before or after the deadline. Those who request more time for the filing of comments do not suggest the existence of relevant facts that the Department has failed to consider in negotiating and consenting to the proposed Final Judgment. Nor do they explain why more time would be desirable to assist the Court in making the public interest determination that is required by the APPA. Under the circumstances, an extension of the 60-day public comment period is unnecessary and inappropriate in this action.

Conclusion

The Competitive Impact Statement and this Response to comments demonstrate that the proposed Final Judgment serves the public interest. Accordingly, after publication of this Response in the

Federal Register

pursuant to 15 U.S.C. 16(b), the United States will move this Court to enter the Final Judgment.

Dated this 11th day February, 2000.

Respectfully submitted,

Robert L. McGeorge,

D.C. Bar No. 91900.

Michael P. Harmonis,

U.S. Department of Justice, Antitrust Division, 325 7th Street, NW, Suite 500, Washington, D.C. 20530, (202) 307-6361.

Certificate of Service

I hereby certify that I am an attorney for the United States in this action, and have caused true and correct copies of the foregoing UNITED STATES RESPONSE TO PUBLIC COMMENTS to be served by first-class mail or by more expeditious means on counsel for the defendants, Marc G. Schildkraut, Esq., Howrey & Simon, 1299 Pennsylvania Ave., NW, Washington DC, Paul T. Dennis, Esq., Swidler Berlin Shereff Friedman, LLP, 3000 K Street, NW, Suite 300 Washington, DC and Jack Quinn, Esq., Arnold & Porter, 555 12th Street, NW, Washington, DC, on this 11th day of February, 2000.

Michael P. Harmonis.

United States Response to Public Comments—Appendix

Communications with respect to this document should be addressed to:

Roger W. Fones, Chief, Donna N. Kooperstein, Assistant Chief; Robert L. McGeorge, Michael P. Harmonis, Attorneys; Transportation, Energy & Agriculture Section, Antitrust Division, U.S. Department of Justice, 325 Seventh Street, NW, Washington, DC 20530, (202) 307-6361.

Public Comments

The comments from members of the public that follow in this Appendix were filed during the sixty-day period specified in 15 U.S.C. 16(b),

commencing on August 12, 1999 and terminating on October 12, 1999.

Congresswoman Jo Ann Emerson—Tab 1

State Attorneys General (alphabetical by State)—Tab 2

Organizations (in alphabetical order)—Tab 3

Individuals (in alphabetical order)—Tab 4

Tab 1

Congress of the United States,

House of Representatives,

Washington, DC 20515-2508, August 11, 1999.

Mr. Roger Fones,

Chief, Transportation, Energy, and Agriculture Section, Antitrust Division, U.S. Department Of Justice, 325 7th Street, NW, Suite 500, Washington, DC 20530.

Dear Mr. Fones: Thank you for the attention of your Department to the plans by Cargill, Inc. to acquire the grain handling interests of Continental Grain. In all of agriculture, from transportation to processing, to inputs, there is a troubling trend toward larger and fewer companies. It is vitally important that your office work to prevent the kind of consolidation in agriculture markets that hurts producers. In the case of Cargill, I believe that your investigation and the ensuing stipulations were well warranted. However, I hope that you will consider an issue that has been raised by producers in my District regarding the consent agreement that the DOJ has entered into with Cargill (civil action number 991875).

Specifically, I have been contacted by producers in Southeast Missouri concerned that Continental's Cottonwood Point facility may be sold to an entity already possessing a significant share of the local grain market. As you know, the consent agreement requires Cargill to divest itself of the Cottonwood Point facility in order to satisfy competitive concerns. Local producers fear that Bunge would gain a near monopoly share of the local market if it were allowed to purchase the facility. I urge you to exercise strict oversight authority over the divestiture of the Cottonwood Point facility in order to prevent an unintended, anticompetitive situation.

Thank you for your attention to this matter and I look forward to hearing from you.

Sincerely,

Jo Ann Emerson, Member of Congress.

Tab 2

Richard Blumenthal, Attorney General,

State of Connecticut

Hartford June 23, 1999.

The Honorable Joel I. Klein,

Assistant Attorney General, Antitrust Division, Department of Justice, 950 Pennsylvania Avenue, N.W., Room 3109, Washington, D.C. 20530.

Re: Mergers in the Agricultural Industry.

Dear Joel: I am sure you are aware of Minnesota Attorney General Mike Hatch's recent letter to you—which he has suggested I support in my capacity as Chair of the Antitrust Committee of the National Association of Attorneys General—expressing his concern about the proposed merger of the grain operations of Cargill, Inc. and Continental Grain Company. In addition, I understand that North Dakota Attorney General Heidi Heitkamp, Missouri Attorney General Jay Nixon, and South Dakota Attorney General Mark Barnett have each written to express their similar concerns about this proposed merger.

As the Chair of the Antitrust Committee, I join in asking you to consider carefully the possible damage to our nation's agricultural industry caused by undue concentration in numerous grain markets.

In exercising our

parens patriae

authority, Attorneys General are often called upon to evaluate and gauge the competitive harm that may result in their own states from a proposed merger. Moreover, we are all well informed of the benefits of competitive markets in lower prices and better quality for consumers. Given the importance of the food supply to our national, as well as local, interests, and the needs of consumers and farmers for fair pricing, it is crucial that we not allow monopolies or oligopolies to form—or if already formed, from abusing their market power—at any level of the agricultural industry. I urge you to be wary of and oppose any merger that may tend to lessen competition in this all-important industry in the interests of farmers and consumers alike.

Very truly yours.

Richard Blumenthal.

Mike Hatch, Attorney General

State of Minnesota

Office of the Attorney General,

St. Paul, MN, October 12, 1999.

Roger W. Fones,

Chief, Transportation, Energy and Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, DC 20530.

Re: Comment—Proposed Consent Decree Approving the Proposed Merger of Cargill, Inc. and Continental Grain Co.

Dear Mr. Fones: I submit these comments about the proposed Cargill-Continental merger pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (1998). Our concerns were explained in detail in a letter submitted to the Department of Justice in May, attached for your information as Exhibit 1. While we appreciate the Department of Justice's (DOJ) efforts in its lengthy investigation of the proposed merger and while the proposed consent decree strives to alleviate many concerns that have been raised regarding this merger, we remain concerned about the impact of this merger upon farmers and rural communities in Minnesota. This merger is taking place in the context of a nationwide, even a global trend toward consolidation of agricultural industries which, we fear, will only harm the interests of farmers, consumers, and local communities.

As noted in our earlier letter, the grain industries, particularly grain exports, are already highly concentrated, increasing the likelihood that further concentration will lead to oligopsony and even monopsony markets for grain farmers and other sellers of grain. Further, agricultural industries are experiencing a high rate of vertical consolidation as well, with Cargill being one of the key players in this vertical consolidation given its ties to agricultural biotechnology, grain production, animal feed, meat packing, food processing,

etc.

Particularly disturbing are recent comments of the chairman of Cargill who has publicly proclaimed the company's intention to continue to expand its market reach throughout agricultural industries, both on a horizontal and vertical level. “Cargill Chairman Micek Says Acquisitions Could Fuel Growth,” Star Tribune, September 11, 1999 (Exhibit 2). These comments illustrate Cargill's intention to further reduce competition in agricultural markets a time when its most recent and controversial acquisition has not even been finalized.Thus, we believe it would be prudent for the consent decree to prohibit Cargill from acquiring any other direct competitors in grain export, transport, and storage markets.

Also, it should be noted that Cargill continues to come under scrutiny for its business conduct. In the most recent example, a little over one month ago, the Commodities Futures Trading Commission charged Cargill with improper selling of a commodity option for future delivery of grain, because of its use of certain contracts. Barshay, Jill, “Cargill Charged With Illegally Selling Option Contracts,” Star Tribune, August 27, 1999 (Exhibit 3). This type of alleged conduct is directly relevant to the proposed merger, and should be considered by the Court in its evaluation of the proposed merger and consent decree.

Finally, should the Court approve the proposed consent decree and allow the merger to take place, we urge the Department of Justice to strictly scrutinize Cargill's and Continental's compliance with the proposed final order, and to exercise its discretion in approving acquirers of the proposed divestitures in a careful and exacting way. As the Department of Justice will have sole discretion to approve or disapprove any proposed acquirers, we ask that it exercise this discretion vigilantly to minimize to the greatest degree possible any potential harm to competition and public welfare that may result from this merger.

Very truly yours,

Mike Hatch,

Attorney General, State of Minnesota.

Exhibit 1 to the comment filed by Minnesota Attorney General Mike Hatch is available for inspection in room 215 of the U.S. Department of Justice, Antitrust Division, 325 Seventh Street, NW, Washington, DC 20530 (telephone: 202-514-2481) and at the Office of the Clerk of the United States District Court for the District of Columbia, 333 Constitution Avenue, NW, Washington, DC 20001. Copies of these materials may be obtained upon request and payment of a copying fee.

Jeremiah W. (Jay) Nixon, Attorney General,

Attorney General of Missouri,

Jefferson City, MO, September 16, 1999.

Mr. Roger W. Fones, Esq.,

Chief, Transportation, Energy and Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, DC 20530.

Re: Comments on Proposed Consent Decree and Divestiture Settlement, Cargill, Inc.'s Acquisition of Continental Grain Company.

Dear Mr. Fones: As Missouri Attorney General, I wrote directly to Joel Klein, Assistant Attorney General in charge of the Antitrust Division, in mid-May, 1999, regarding the above-referenced acquisition. I had also instructed my assistant, Trey Hanna, to assist your office in assessing the anticompetitive impact this merger would have on grain farmers in southeast Missouri. As expressed on earlier occasions, I am concerned about this acquisition.

I was quite glad to see that the Department of Justice secured (1) Cargill's agreement that it would not seek to acquire any ownership interest in the river elevator at Birds' Point, Missouri, which Continental had previously held, and (2) Continental's agreement to first divest its river terminal at Cottonwood Point, Missouri, (near Caruthersville) before conveying most of its other grain assets to Cargill. Allow me to again express our thanks.

But we are still concerned; it remains to be seen whether the new owner of that Cottonwood Point facility will be acceptable.

We have analyzed competitive conditions in southeast Missouri's grain business and farmers' ability to secure a fair price for their product. We have analyzed the “Competitive Impact Statement” (C.I.S.) filed by the Department of Justice on July 23, 1999 and subsequently published in the

Federal Register

. Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16 (b)-(h), I now wish to formally comment on the proposed consent decree which, if approved by the court, will become a final judgment and will set competitive conditions in southeast Missouri for many years to come.

As the Department of Justice explained in that C.I.S., the core purpose of requiring Continental to first divest the Cottonwood Point facility is to “preserve existing competition” and “maintain the level of competition [in southeast Missouri] that existed pre-acquisition.” (C.I.S., at p. 9). As also recited therein, the Department of Justice has the sole discretion to approve or disapprove the manner in which the defendants propose to implement the divestiture of this facility (C.I.S., at p. 12), and whom they propose to divest it to (C.I.S., at p. 11).

Farmers in southeast Missouri hear rumors that Continental may propose to divest the Cottonwood Point facility to Bunge, the second largest competing purchaser of grain in the area (after Cargill). That would reduce the number of competing buyers of grain from four to three, being nearly as bad for competition in southeast Missouri as a sale to Cargill, which you sued to prevent. Likewise, a divestiture to Consolidated Grain and Barge (C.G.B.), another competitor in the market, would also be far from optimal.

Before Cargill and Continental announced this global transaction, farmers in southeast Missouri had four competing buyers to sell their product to. We urge the Department of Justice to exercise its discretion, when approving proffered buyers, to make sure they have four separate and distinct buyers after this divestiture, as well.

While my analysis has focused exclusively on the Missouri facilities, I also have concerns about the impact of this merger on the market generally. I share the concern of many Missouri farmers that the current anti-trust laws and resources may not adequately protect them from attempts to manipulate the market place. I urge the Justice Department to scrutinize this acquisition closely in light of the growing consolidation in agriculture.

Thank you for giving these comments due consideration. If we can answer any questions or provide other assistance, don't hesitate to contact us through my assistant, Trey Hanna, at (816) 889-5000.

Sincerely,

Jeremiah W. (Jay) Nixon.

Don Stenberg, Attorney General,

State of Nebraska,

Office of the Attorney General,

Lincoln, Nebraska 68509-8920, September 7, 1999.

Mr. Roger W. Fones,

Chief, Transportation, Energy and Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, N.W., Suite 500, Washington, DC 20530.

Re: United States of America v. Cargill, Inc and Continental Grain Company.

Dear Mr. Fones: Pursuant to the Antitrust Procedures and Penalties Act, I am writing in my official position as the Attorney General of the State of Nebraska to object to the proposed final judgment in this case. In my opinion, the approval of the consent decree is not in the public interest and is not consistent with the public policy underlying federal antitrust statutes.

The proposed consent decree requires the divestiture of certain grain elevators in specified locations, but otherwise approves the merger of two of our nation's largest grain trading companies.

The increasing concentration in agricultural marketing and processing will mean lower prices for farmers and higher prices for consumers. Indeed, it was farmers' protests against the formation of large agricultural marketing and processing trusts in the late 1800's that led to the creation of our antitrust laws.

We are now seeing the same types of concentrations of economic power in the agricultural processing and marketing industries that existed over 100 years ago until they were broken up by the passage and enforcement of federal antitrust laws. At a minimum, a line must now be drawn to prevent further anti-competitive economic concentration in agriculture.

The fundamental flaw in the U.S. Justice Department's analysis that it fails to recognize that grain handling and grain merchandising is a nationwide and worldwide business. The proposed merger needs to be viewed not simply on a region by region basis, but upon overall national grain marketing implications.

The fundamental evils of excessive economic concentration are well known and have been well known for more than 100 years. In a highly concentrated industry, it is easy to keep track of the prices a handful of competitors are paying to acquire grain and to sell it. It is in the interest of the handful of competitors to uniformly offer low prices to buy and high prices to sell to consumers. This is true whether or not there is an explicit contract or conspiracy in restraint of trade. Moreover, it is easier and more tempting to form contracts or conspiracies to restraint of trade in a highly concentrated industry.

In a May 7, 1999 letter concerning the Cargill/Continental merger to the U.S. Department of Justice, Minnesota Attorney General Mike Hatch noted some basic market share information that is of great importance. He pointed out that Cargill and Continental are the two largest grain exporters in the United States. Cargill is the nation's largest grain exporter and Continental is the second largest. General Hatch goes on the explain that in fiscal year 1998, the market shares for the four largest national grain exporters (including Cargill and Continental) range from 46.6% for wheat to 64.9% for soybeans and 80.9% for corn. Cargill itself estimates that it and Continental together control about 35% of the U.S. grain exports.

Continental and Cargill are both already such large enterprises that it is very doubtful that this merger will produce any economies of scale that would increase profits. Rather, increased profits will come from the increased market power to pay producers less and charge consumers more by virtue of vastly increased economic power.

The purpose of the anti-trust statutes is to preserve the free markets so that our free enterprise system can produce the fairest prices for both producers and consumers. The anti-trust statutes should be brought to bear in this case for that very reason.

As General Hatch correctly noted in his May 7 letter, these issues are national in scope and adequate resolution cannot come from the state or local level. If the U.S. Department of Justice cannot be persuaded to vigorously oppose a merger of this magnitude, it is difficult to imagine any merger in the area of agri-business which would be opposed by the Department.

Those of us from agricultural states under-stand the negative impact of excessive economic concentrations in agriculture on our farmers and ranchers. Persons from non-agricultural states should carefully consider the substantial increases in consumer food prices that loom on the horizon if further economic concentration occurs in our agricultural sector.

Yours truly,

Don Stenber.

In the matter of The United States District Court for the District of Columbia; United States of America, Plaintiff, vs. Cargill, Incorporated, and Continental Grain Company, Defendants; Case No. 1:99CV01875 (GK) Judge; Gladys Kessler.

Filed October 22, 1999.

Motion by the Attorney General of Nebraska To File Brief as Amicus Curiae

Comes Now

Don Stenberg, the Attorney General of the State of Nebraska, and moves this Court for leave to file the brief attached hereto as Exhibit A as amicus curiae in the above-referenced action. The Attorney General of Nebraska has a special interest in the subject matter of this lawsuit because of his duties and responsibilities to enforce the antitrust laws, and because the merger proposed herein will have a significant impact upon the State of Nebraska.

Don Stenberg, #14023,

Attorney General of Nebraska.

Dale A. Comer, #15365,

Assistant Attorney General, 2115 State Capitol, Lincoln, NE 68509-8920, Tel: (402) 471-2682.

Certificate of Service

The undersigned hereby certifies that a copy of the foregoing Motion By The Attorney General Of Nebraska To File Brief As Amicus Curiae with attachments has been served upon the parties herein by mailing each of those parties a true and correct copy of the same, via first-class United States Mail, postage prepaid, addressed to the parties' counsel of record as follows:

Robert L. McGeorge, Esq.

Attorney, U.S. Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, DC 20530.

Marc G. Schildkraut, Esq.,

Howrey & Simon, 1299 Pennsylvania Avenue, NW, Washington, DC 20004.

Paul T. Denis, Esq.,

Swidler, Berlin Shereff Friedman, LLP, 3000 K Street, NW, Suite 300, Washington, DC 20007-5116.

Jack Quinn, Esq.,

Arnold & Porter, 555 Twelfth Street, NW, Washington, DC 20004.

On this 21st day of October, 1999.

Dale A. Comer,

Assistant Attorney General.

Memorandum of Points and Authorities in Support of Motion by the Attorney General of Nebraska To File Brief as Amicus Curiae

Don Stenberg, #14023,

Attorney General of Nebraska.

Dale A. Comer, #15365,

Assistant Attorney General, 2115 State Capitol, Lincoln, NE 68509-8920, Tel: (402) 471-2682.

Introduction

This case involves an action under the Tunney Act, and in particular 15 U.S.C. 16(e), in which the parties seek this court's approval of a proposed final consent judgment involving a corporate merger between Cargill, Inc. and Continental Grain Company. The Attorney General of the State of Nebraska has now filed a Motion For Leave To File A Brief As Amicus Curiae in this proceeding. This Memorandum of Points and Authorities is submitted to the court in support of that Motion.

Argument

The decision as to whether to allow participation by amicus curiae in this case is left to the discretion of this court.

In general, the decision as to whether to allow a non-party to participate in a case as

amicus curiae

is solely within the broad discretion of the court.

Ellsworth Associates, Inc.

United States,

917 F.Supp. 841 (D.D.C. 1996). Such discretion also applies within the specific context of the Tunney Act.

United States

Associated Milk Producers,

394 F.Supp. 29 (W.D.Mo. 1975). The aid of amicus curiae is appropriate at the trial level where they can provide helpful analysis of the law.

Waste Management of Pennsylvania

City of York

, 162 F.R.D. 34 (M.D.Pa. 1995).

Amicus curiae

are also appropriate when they have a special interest in the subject matter of the suit.

Strasser

Doorley,

432 F.2d 567 (1st Cir. 1970). As a result, the decision as to whether to allow participation by amicus curiae in this case is left to the discretion of this court, and such participation is warranted if the amicus participants can provide a helpful analysis of the law or if they have a special interest in the subject matter of this suit.

The court should exercise its discretion so as to allow the Attorney General of Nebraska to file a brief in this case as amicus curiae.

The

amicus curiae

brief which the Attorney General of Nebraska proposes to submit to this court contains a detailed discussion and analysis of the proposed Final Judgment in this case under the applicable antitrust laws, and therefore, will hopefully provide this court with a helpful analysis of the law. More importantly, the Attorney General of Nebraska has a special interest in the subject matter of this lawsuit, in two respects.

First, the Attorney General of Nebraska is the primary state official in Nebraska charged with the duty of enforcing the state's antitrust laws. See,

e.g.,

Neb. Rev. Stat. §§ 59-1601 through 59-1623 (1998) (the Nebraska Consumer Protection Act which, among other things, authorizes the Attorney General to bring an action seeking to enjoin a corporate acquisition which would “substantially lessen competition or tend to create a monopoly in any line of commerce); Neb. Rev. Stat. §§ 59-801 through 59-831) (1998) (authorizing criminal sanctions for antitrust violations in Nebraska); and Neb. Rev. Stat. §§ 84-212 (1994) (authorizing the Attorney General to sue a

parens patriae

on behalf of citizens of the state to recover damages sustained by those citizens as a result of violations of the state or federal antitrust laws). The Nebraska Attorney General also has specific enforcement authority under the federal antitrust laws. See,

e.g.,

Section 4 of the Clayton Act, 15 U.S.C. 15 (1998) (authorizing states to sue for proprietary damages inflicted upon them); Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 15c (1998) (authorizing state attorneys general to sue for damages as

parens patriae

on behalf of natural persons); Section 16 of the Clayton Act, 15 U.S.C. § 26 (1998);

California

American Stores Co.,

495 U.S. 271 (1990) (upholding state's right pursuant

to Section 16 of the Clayton Act to obtain injunctive relief, including divestiture, against illegal mergers);

Hawaii

Standard Oil,

405 U.S. 251, 257-60 (1972) (acknowledging state's authority to seek injunctive relief on behalf of general economy of the state). As a result, the Attorney General of Nebraska has a strong interest in antitrust enforcement and in promoting free and fair competition. The Attorney General of Nebraska also has a strong interest in protecting the citizens of Nebraska from unreasonable restraints of trade, both in their capacities as consumers and their capacities as competitors.

Second, agriculture is an important and major industry in the State of Nebraska. In 1997, more than 96 per-cent of the state's land, involving 47 million acres, was farm and ranchland. Clerk of the Nebraska Legislature, Nebraska Blue Book 1998-99 (Michael R. Lewis ed., 1998) p. 40. In that same year, gross cash receipts from farm marketing in Nebraska totaled $10.1 billion, and Nebraska had 55,000 farms that produced food for consumers in the United States and abroad.

Id.

Consequently, any anticompetitive activities which affect agricultural markets and farmers in the State of Nebraska in general are of concern to the Attorney General of Nebraska.

It is also clear that agricultural interests and farmers in Nebraska are affected specifically by the details of the proposed final consent judgment in this case. As noted in the government's Competitive Impact Statement herein, the overlapping draw area for the Pacific Northwest includes portions of Nebraska. Competitive Impact Statement at 4. In addition, the overlapping draw area for the Texas Gulf also includes portions of Nebraska. Competitive Impact Statement at 4. Therefore, the final consent judgment proposed in this case affects the agricultural industry in Nebraska, and the Attorney General of Nebraska has a direct responsibility to deal with anticompetitive practices affecting those markets. On that basis, the Attorney General also has a special interest in the subject matter of this lawsuit.

Conclusion

An amicus brief by the Attorney General of Nebraska in this case would provide this court with a helpful analysis of the law. Moreover, for the reasons stated above, the Attorney General of Nebraska has a special interest in the subject matter of this lawsuit. As a result, the Attorney General of Nebraska respectfully requests that this court exercise its discretion and grant him leave to participate in this action by filing a brief as

amicus curiae.

Dated this 21st day of October, 1999.

(By: Don Stenberg, #14023, Attorney General)

Don Stenberg,

Attorney General of Nebraska.

Dale A. Comer, #15365,

Assistant Attorney General, 2115 State Capitol, Lincoln, NE 68509-8920, Tel: (402) 471-2682.

Certificate of Service

The undersigned hereby certifies that a copy of the foregoing Memorandum Of Points And Authorities in Support Of Motion By The Attorney General Of Nebraska To File Brief As

Amicus Curiae

has been served upon the parties herein by mailing each of those parties a true and correct copy of the same, via first-class United States Mail, postage prepaid, addressed to the parties' counsel of record as follows:

Robert L. McGeorge, Esq.,

Attorney, U.S. Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, DC 20530.

Marc G. Schildkraut, Esq.,

Howrey & Simon, 1299 Pennsylvania, NW, Washington, DC 20004.

Paul T. Denis, Esq.,

Swidler, Berlin Shereff Friedman, LLP, 3000 K Street, NW, Suite 300, Washington, DC 20007-5116.

Jack Quinn, Esq.,

Arnold & Porter, 555 Twelfth Street, NW, Washington, DC 20004.

On this 21st day of October, 1999.

Dale A. Comer,

Assistant Attorney General.

Brief of the Attorney General of Nebraska as Amicus Curiae

Don Stenberg, #14023,

Attorney General of Nebraska.

Dale A. Comer, #15365,

Assistant Attorney General, 2115 State Capitol, Lincoln, NE 68509-8920, Tel: (402) 471-2682.

Exhibit A

Interest of Amicus Curiae

The Attorney General of Nebraska is the primary state official in Nebraska charged with the duty of enforcing the state's antitrust laws. See,

e.g.,

Neb. Rev. Stat. §§ 59-1601 through 59-1623 (1998) (the Nebraska Consumer Protection Act which, among other things, authorizes the Attorney General to being an action seeking to enjoin a corporate acquisition which would “substantially lessen competition or tend to create a monopoly in any line of commerce); Neb. Rev. Stat. §§ 59-801 through 59-831 (1998) (authorizing criminal sanctions for antitrust violations in Nebraska); and Neb. Rev. Stat. § 84-212 (1994) (authorizing the Attorney General to sue as

parens patriae

e.g.,

Section 4 of the Clayton Act, 15 U.S.C. 15 (1998) (authorizing states to sue for proprietary damages inflicted upon them); Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 15c (1998) (authorizing state attorneys general to sue for damages as

parens patriae

on behalf of natural persons); section 16 of the Clayton Act, 15 U.S.C. 26 (1998);

California

American Stores Co.,

495 U.S. 271 (1990) (upholding state's right pursuant to Section 16 of the Clayton Act to obtain injunctive relief, including divestiture, against illegal mergers);

Hawaii

Standard Oil,

Agriculture is an important and major industry in the State of Nebraska. In 1997, more than 96 per cent of the state's land, involving 47 million acres, was farm and ranch land. Clerk of the Nebraska Legislature, Nebraska Blue Book 1998-99 (Michael R. Lewis ed., 1998) p. 40. In that same year, gross cash receipts from farm marketing in Nebraska totaled $10.1 billion, and Nebraska had 55,000 farms that produced food for consumers in the United States and abroad.

Id.

As a result, any anticompetitive activities which affect agricultural markets and farmers in the State of Nebraska in general are of concern to the Attorney General of Nebraska.

overlapping draw area for the Texas Gulf also includes portions of Nebraska. Competitive Impact Statement at 4. As a result, the final consent judgment proposed in this case will affect the agricultural industry in Nebraska, and the Attorney General of Nebraska has a direct responsibility to deal with anticompetitive practices in those markets.

Argument

The Final Consent Judgment Proposed by the Parties in This Proceeding is Not in the Public Interest, and Should Not be Approved by This Court

Under the Tunney Act, and in particular 15 U.S.C. 16(e), this court may approve the final consent judgment proposed by the parties in this case only if the court determines that the entry of such judgment is “in the public interest.” For the reasons discussed at length below, the Attorney General of Nebraska contends that the consent judgment with Cargill and Continental Grain Company (hereafter “Continental”) proposed by the United States is deficient and not in the public interest. Consequently, this court should refuse to approve that final consent judgment.

In a proceeding under the Tunney Act, this court is not a “rubber stamp” for the Department of Justice, but acts as an independent check on the terms of the proposed final consent judgment.

A number of federal cases have set out the applicable standards with respect to a review of a proposed final consent judgment proposed by the government under the Tunney Act. First of all, it is clear that the court is not to act simply as a “rubber stamp” for the proposal submitted by the Department of Justice.

United States

BNS Inc.,

858 F.2d 456 (9th Cir. 1988);

United States

Western Electric Company,

767 F.Supp. 308 (D.D.C. 1991). Instead, the court “is required to act as an independent check on the terms of such decrees.”

United States

Western Electric Company,

767 F.Supp. 308, 328 (D.D.C. 1991). In addition, Congress did not intend the court's review of a proposed final consent judgment under the Tunney Act to be merely pro forma or limited to what appears on the surface.

United States

Gillette Company,

406 F.Supp. 713 (D. Mass. 1975). The court must make an independent determination as to whether or not entry of a proposed consent decree is in the public interest.

United States

Microsoft,

56 F.3d 1448 (D.C. Cir. 1995).

What constitutes the “public interest” in the context of this type of proceeding was discussed at length in

United States

American Telephone and Telegraph Company,

552 F.Supp. 131 (D.D.C. 1982). In that case, this court indicated that purpose of the antitrust laws was to “preserv[e] free and unfettered competition as the rule of trade.”

Id.

at 149 (quoting from

Northern Pacific Railway Co.

United States,

356 U.S. 1 (1958)). Within that purpose, an antitrust remedy, including a consent decree, must “leave the defendant without the ability to resume the actions which constituted the antitrust violation in the first place” or “effectively foreclose the possibility that antitrust violations will occur or recur.”

Id.

at 150. In addition, “antitrust violations should be remedied with as little injury as possible to the interest of the general public’ and to relevant private interests.”

Id.

at 150 (quoting from

United States

American Tobacco Co.,

221 U.S. 106 (1911)).

The final judgment proposed by the parties in this action is deficient in a number of respects, and is not in the public interest.

The Attorney General of Nebraska believes that the final consent judgment proposed by the parties in this case is deficient in the first instance because it does not take into account the wider context of vertical consolidation in the nation's agribusiness system, and instead focuses solely on the grain buying activities of Cargill and Continental. Consolidation across vertically-related markets is increasingly leading to the creation of all-inclusive food supply chains in the United States where one company or interrelated group of companies can control certain agricultural commodities from their creation at the genetic level to their ultimate purchase by the consumer. This sort of vertical consolidation will harm competition by making entry into the affected markets more difficult, by making the extent of actual competition more difficult to estimate, and by forcing independent farmers and producers out of business. Allowing the merger of Cargill and Continental will make further agribusiness consolidation more likely. For one thing, acquisition of Continental's seventy grain elevators will enhance Cargill's economic power generally, and allow deployment of that economic power across a wide range of other agricultural sectors including beef packing, cattle feedlots, pork packing, broiler production, turkey production, flour milling, soybean crushing and ethanol production. That enhanced economic power will also allow Cargill to transfer resources across markets without regard to competitive conditions. As a result, the government should have considered more than the grain buying operations of Cargill in evaluating this merger.

The proposed final consent judgment also fails to recognize that grain handling and grain merchandising is a nationwide and worldwide business. In that regard, as noted in the competitive impact statement filed herein, Cargill is the second largest grain trader in North America and the largest U.S. grain exporter. Continental is the third largest grain trader in North America and the third largest U.S. grain exporter. Merger of those market shares cannot help but increase the concentration in the national and global grain trading and grain exporting markets to questionable levels with damaging effects upon farmers and consumers in Nebraska and other agricultural states. Yet, the government's proposed final consent judgment focuses only on grain trading activities in a small number of regional markets.

The Attorney General of Nebraska is aware of the decision in

United States

Microsoft,

56 F.3d 1448 (D.C. Cir. 1995). Consequently, the remainder of this amicus curia brief will focus on specific deficiencies with respect to the matters alleged in the government's Complaint in this case and the proposed final consent judgment presented to the court.

A. The final consent judgment fails to take into account the size and organization of the sellers in the markets affected by the proposed merger.

In a number of merger cases, courts have given credence to the notion that a merger resulting in a larger, more powerful firm may be permissible if the companies the merged firm sells to also possess market power.

United States

Baker Hughes, Inc.,

908 F.2d 981, 984 (D.C. Cir 1990);

F.T.C.

Elders Grain, Inc.,

868 F.2d 901, 905 (7th Cir. 1989). For example, in

United States

Country Lake Foods, Inc.,

754 F.Supp. 669 (D.Minn. 1990), the district court recognized the ability of large food corporations which were milk purchasers to act as a check to the market power of milk processors in a merger involving the fluid milk processing industry because the food corporations could respond aggressively to price increases and had the capital resources necessary to vertically integrate fluid milk processing. That reasoning forms the basis for the “power buyer” defense to merger enforcement.

If the presence of “power buyers” in a particular market helps to make a proposed merger more acceptable, it necessarily follows that the lack of such “power buyers” makes a merger less acceptable, because powerful sellers in a given market can use their market power to exploit small and disorganized buyers. For example, in

United States

Tote, Inc.,

768 F.Supp. 1064 (D. Del. 1991), the court rejected the power buyer defense because there were a large number of small buyers in the market at issue. For that reason, among others, the court held the merger in question to be anticompetitive. See also

F.T.C.

Cardinal Health, Inc.,

12 F.Supp.2d 34 (D.D.C. 1998).

The reasoning underlying the power buyer defense should also be applied equally in evaluating the competitive effects of a merger in an oligopsony situation. In other words, the anticompetitive effects of a merger involving a small number of possible buyers should be evaluated, in part, by measuring the number and power of the sellers for those buyers. If the sellers are numerous, disorganized and small, then they will be unable to respond to the anticompetitive exercise of market power by small group of powerful buyers. That is precisely the situation in the present case where a small group of buyers in the grain buying and marketing industry are able to exert anticompetitive power over numerous, disorganized and small farmers selling grain. That situation will be exacerbated by the merger proposed under the final consent judgment in this case, and for that reason, the final judgment is not in the public interest.

B. The proposed final consent judgment does not take into account the potential for continuing anticompetitive behavior in the post-merger market.

In its Complaint, the government argues that very few firms buy grain within particular draw areas. Government Complaint, p.4. The government then contends that in those “captive draw areas, [a merged] Cargill would be in a position unilaterally, or in coordinated interaction with the few remaining competitors, to depress prices paid to producers and other suppliers because transportation costs would preclude them from selling to purchasers outside the captive draw areas in sufficient quantities to prevent the price decrease.” Government Complaint, p.4. To remedy this problem in the context of the proposed merger, the government simply proposes divestitures in a few of the captive draw areas. However, even with the divestitures proposed by the Department of Justice, grain buying in the post-merger markets in the captive draw areas at issue will still remain heavily concentrated and susceptive to collusive and cooperative activity among the remaining grain buyers. As a result, the proposed final consent judgment will not effectively foreclose the possibility that antitrust violations will occur in the future in the captive draw areas. For that reason, it is deficient.

C. The proposed final consent judgment fails to take into account the impact of global sales or grain buying in the United States.

A great deal of the grain purchased by Continental and Cargill is sold overseas where purchases are based upon factors such as geographic area, historic preference or long-term contracts. Those factors often reduce the need for competition in buying American grain. However, the proposed final consent judgment fails to take those global market factors into account in determining what is necessary to maintain competitive grain buying in the United States.

D. Under the proposed final consent judgment, there is no assurance that the portions of Continental's operations which are divested can or will remain a competitive force in the markets in question.

The government notes, in its Complaint, that “[g]rain traders such as Cargill and Continental operate extensive grain distribution networks, which facilitate the movement of grain from farms to domestic consumers of these commodities and to foreign markets.” Government Complaint at 3. Given this need for “extensive grain distribution networks.” it is unclear as to how the remnants of Continental divested as a result of the final consent judgment will compete effectively in the markets where they are located, since they may not be part of such a distribution network with its competitive flexibility and access to information about grain flows. In addition, the acknowledged need for “extensive grain distribution networks” in these markets will make it highly unlikely that new firms will enter these markets and provide additional competition. Indeed, the Department of Justice concedes in its Complaint that new entry into the grain buying business is unlikely. Government Complaint at 6.

E. The proposed final consent judgment fails to take into account the effects of removal of Continental as potential competitor to Cargill.

United States

Penn-Olin Chemical Co.,

378 U.S. 158, 173-4 (1964), the United States Supreme Court stated:

[t]he existence of an aggressive, well equipped and well financed corporation engaged in the same or related lines of commerce waiting anxiously to enter into an oligopolistic market would be a substantial incentive to competition which cannot be underestimated.

In the present case, Continental currently possesses the grain distribution network and other resources to potentially challenge Cargill in the grain buying business. With Continental taken out of that business as a result of the merger proposed herein, Cargill will face much less pressure to pay competitive prices and compete in grain buying markets. This is particularly true given the difficulty of entry into the market by new firms.

F. The final consent judgment fails to take into account other statutes which Congress intended should be considered in making determinations regarding agricultural markets.

A primary rule of statutory construction is that when a court interprets multiple statutes dealing with a related object or subject, those statutes are

in pari materia

and should be construed together.

Common Cause

Federal Election Commission,

842 F.2d 436 (D.C. Cir. 1988);

Linquist

Bowen,

813 F.2d 884 (8th Cir. 1987). Essentially, if a number of separate statutes relate to the same thing, they are

in pari materia,

and all ought to be taken into consideration in construing any one of them.

United States

Freeman,

44 U.S. 556 (1845). In the area of agricultural markets, Congress has passed a number of statutes in addition to the provisions of the Sherman Act and the Clayton Act which are

in pari materia

with those antitrust statutes because they reflect congressional concerns about economic concentration and the disproportionate bargaining power of farmers. All of those statutes should have been considered in fashioning the proposed final consent judgment in this case. Because they were not, that final consent judgment is deficient.

First of all, the Department of Justice failed to consider the implications of the Packers and Stockyards Act of 1921, 7 U.S.C. 181

et seq.

(the “PSA”), in developing the final consent judgment. The PSA was passed after the Sherman, Clayton and Federal Trade Commission

Acts, and was designed to go beyond the broad language of those statutes.

Wilson & Co.

Benson,

286 F.2d 891 (7th Cir. 1961). Among other things, the PSA was directed at the lack of competition between agricultural buyers and the attendant possible depression of producers' prices.

Swift & Co.

United States,

393 F. 2d 247 (7th Cir. 1968). In the present case, one of the government's concerns with the proposed merger is that prices paid to farmers could be depressed in a post-merger market. Government Complaint at 6. The PSA supports the notion that particular attention should be directed to mergers which implicate marketing for farmers.

Another statute with implications for the merger under consideration which was not considered by the government is the Capper-Volstead Act, 7 U.S.C. 291-2. That statute specifically exempted agricultural cooperatives from the antitrust laws because Congress intended to treat farmer cooperatives differently from typical corporations and to give farmers the opportunity to build their bargaining power relative to corporate buyers.

Fairdale Farms, Inc.

Yankee Milk, Inc.

, 635 F.2d 1037 (2nd Cir. 1980). This was done deliberately to enable farmers to organize and work together so as to obtain and exercise marketing power.

Kinnet Dairies, Inc.

Dairymen, Inc.

, 512 F.Supp. 608 (M.D. GA. 1981). Any merger which works against those principles to increase the power of buyers at the expense of farmers should therefore be subject to special, heightened scrutiny.

Finally, the proposed final consent judgment fails to consider the implications of the Agricultural Fair Practices Act of 1967, 7 U.S.C. 2301-2306 (the “AFPA”). That Act was intended to prevent corporations from interfering in the formation of collective marketing organizations involving farmers. The overriding purpose of the legislation was the protection of farmers' rights to organize cooperatively.

Butz

Lawson Milk Co.

, 386 F.Supp. 227 (N.D. OH. 1974). Again, AFPA's recognition of the potential for abusive practices by agricultural processors shows congressional concern with the potential market power of agricultural buyers which should have been reflected to a greater degree in the final consent judgment which is now before this court.

G. The final consent judgment fails to set out any benefits or efficiencies of the proposed merger.

The Department of Justice obviously has concerns about the anticompetitive effects of the merger in this case as witnessed by the divestitures required in the proposed final consent judgment and the other allegations in the Complaint. Yet, the papers prepared by the government do not set out any reasons for approving the proposed merger after the divestitures such as post-merger efficiencies which will result from the action. Absent any economic benefits resulting from the merger in this case, it is difficult to understand how this merger can be in the public interest in light of the other potential anticompetitive problems set out above.

III

If necessary, this court should appoint a special master to assist in determining if the proposed final consent judgment in this case is in the public interest

For all the various reasons set out above, the Attorney General of Nebraska contends that the proposed final consent judgment in this case is not in the public interest as required by 15 U.S.C. 16(e). However, should this court not determine that such a finding is appropriate at the present time, the Attorney General of Nebraska urges the court to appoint a special master in this case as contemplated by 15 U.S.C. 16(f) to hear evidence and to make a recommendation to the court as to the efficacy of the proposed final consent judgment. The appointment of a special master in this case is based upon the complex nature of the agricultural markets at issue and the various statutes discussed above which interact upon the application of the antitrust laws in this context.

Conclusion

For the reasons discussed above, the Attorney General of Nebraska, as amicus curiae, urges the court to reject the proposed final consent judgment in this case as not in the public interest. Alternatively, the Attorney General of Nebraska urges the court to appoint a special master in this case who can assist the court in analyzing the particular agricultural markets at issue.

Dated this 21st day of October, 1999.

Don Stenberg, #14023

Attorney General of Nebraska.

Dale A. Comer, #15365

Assistant Attorney General, 2115 State Capitol, Lincoln, NE 68509-8920, Tel: (402) 471-2682.

Certificate of Service

The undersigned hereby certifies that a copy of the foregoing Brief Of The Attorney General Of Nebraska As

Amicus Curiae

Robert L. McGeorge, Esq.,

Attorney, U.S. Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, DC 20530.

Marc G. Schildkraut, Esq.,

Howrey & Simon, 1299 Pennsylvania Avenue, NW, Washington, DC 20004.

Paul T. Denis, Esq.,

Swidler, Berlin Shereff Friedman, LLP, 3000 K Street, NW, Suite 300, Washington, DC 20007-5116.

Jack Quinn, Esq.,

Arnold & Porter, 555 Twelfth Street, NW, Washington, DC 20004.

On this 21st day of October, 1999.

Dale A. Comer,

Assistant Attorney General.

Attorney General of New Mexico

6301 Indian School Rd., NE., Suite 400, Albuquerque, New Mexico 87110; (505) 841-8098, FAX: (505) 841-8095

October 12, 1999.

FACSIMILE NUMBER (202) 307-2784

Roger W. Fones,

Chief, Transportation, Energy & Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, NW., Suite 500, Washington, DC 20530.

Re: United States v. Cargill, Incorporated and Continental Grain Company, Case Number 1:99CV0187 (GK)

Dear Mr. Fones: I want to take this opportunity to express my concerns for small farmers and ranchers and the serious threats I believe they face from the ever-increasing rate of consolidation in agricultural industries, of which the pending Cargill-Continental Grain Company transaction is but one example.

Not only is consolidation occurring on a horizontal level—that is between direct competitors—but large, economically powerful companies are becoming more vertically integrated. Increasingly, these vertically integrated companies are able to exercise significant power over the food chain, all the way from production to the packaged product. This can have serious adverse effects on our economy and the important role performed by small farmers and ranchers throughout our nation. As Minnesota Attorney General Hatch pointed out in his May 7, 1999 letter concerning this matter to United States Assistant Attorney General Klein, and consistent with the comments submitted to you by Attorney General Don Stenberg of Nebraska dated September 7, 1999, reliable studies indicate that the gap between rising food retail prices and falling prices to farmers and ranchers has been growing for some time. This widening gap is the result, at least in part, of growing economic power of vertically integrated agribusinesses and increasingly concentrated markets and suggests that these markets may

already be dysfunctional in some important ways.

Given the state of the law interpreting Section 7 of the Clayton Act, I do not challenge the consent judgment proposed by the Department of Justice in this matter as being legally or factually unsupported. Certainly the divestitures and other provisions required by the proposed consent judgment ought to ameliorate the anticompetitive effects of the acquisition to some extent. However, even with the required divestitures, this transaction will likely decrease the number of significant competitors in the national grain trading market in the United States. It will also bolster Cargill's already significant market presence both in markets in which Cargill and Continental currently are direct competitors and in markets such as those in the areas of animal feed, feeding cattle and processing cattle, in which Continental is not currently a significant competitor.

Thus, I would urge that these difficult issues be dealt with as comprehensively as possible and that to the extent possible the Department of Justice actively advocate administrative and legislative responses that will enhance and invigorate competition in the agricultural sector of our economy. In addition, the antitrust laws in this sector of the economy should be effectively and timely enforced, especially to protect the valuable interests of small farmers and ranchers. I hope that any additional moves toward further concentration in agricultural markets will be carefully and thoroughly scrutinized.

Sincerely yours,

Patricia A. Madrid,

Attorney General.

cc: Attorney General Michael Hatch

Attorney General Don Stenberg

State of North Dakota, Office of Attorney General

State Capitol, 600 E Boulevard Ave, Bismarck, ND 58505-0040; (701) 328-2210; Fax (701) 328-2226.

October 11, 1999.

Mr. Roger Fones,

Chief, Transportation, Energy, and Agriculture Section, Antitrust Division, US Department of Justice, 325 7th St. NW, Rm 500, Washington, DC 20530.

Dear Mr. Fones: The following comments are submitted concerning the proposed merger of Cargill, Incorporated, and Continental Grain Company. Because there is little competition between Cargill and Continental on the local level in North Dakota, my principal concern has been with this merger's potential impact on the grain export market. It is encouraging that the Antitrust Division responded to these concerns by requiring divestiture by Cargill of its Seattle port elevator and by placing limitations on any future throughout agreement with the subsequent acquirer of that facility.

Nevertheless, I continue to have serious concerns about the increasing consolidation among the agribusiness firms who purchase the output of North Dakota's farmers. I am disappointed with the apparent inability of present day antitrust law to prevent this consolidation and the resultant injury to our farmers, the producers of the agricultural bounty our country enjoys.

Over the past decade, we have witnessed ever-larger mergers among ever-more-concentrated competitors. And all that the antitrust enforcement agencies, my own included, seem capable of doing in response is to tinker around the edges. At a minimal cost of a few divestitures and some relatively insignificant restrictions on post-merger conduct, agribusiness companies in the livestock, meatpacking industries, and now the grain industry continue to grow larger, more concentrated and more powerful. As a result, our farmers now confront the most powerful concentrations of global economic interests the world has ever known.

The economic history of North Dakota agriculture is largely the story of the unequal balance of power between our farmers and the large agribusiness and transportation interests with which they must deal. While producer cooperatives have played a significant role in counter-balancing these economic forces and hold substantial promise for the future, economic disorganization is the natural result of having a large number of farmers, geographically dispersed and producing a wide variety of commodities. The original antitrust laws were enacted over one hundred years ago in significant measure in response to calls to protect farmers from the ravages of raw economic power and to moderate its negative effects on society.

Unfortunately, these laws and the modern trends in their enforcement are proving inadequate to the task. Modern antitrust policy has lost sight of its agrarian roots. The farm sector is hemorrhaging and that bedrock institution, the family farm, is in mortal danger as a result of low commodity prices brought on, in part, by the imbalance of economic forces the antitrust laws were supposed to prevent.

I believe that the time has come to rethink antitrust analysis, particularly in the farmer-agribusiness context. It is time to forthrightly address the failures of economic analysis in this areas as well to give greater consideration to the importance of non-economic concerns in antitrust enforcement. I intend to work with my fellow state attorneys general to initiate this process. I hope that we will be able to count on the Antitrust Division for assistance as we proceed.

In light of the above comments, I would ask that the Antitrust Division reconsider its approval of this merger.

Thank you for your consideration of these comments.

Sincerely,

Heidi Heitkamp,

Attorney General.

State of South Dakota Office of Attorney General, 500 East Capitol Avenue, Pierre, South Dakota 57501-5070; Phone (605) 773-3215, FAX (605) 773-4106

October 5, 1999.

Roger W. Fones,

Chief, Transportation, Energy, and Agricultural Section, Antitrust Division, United States Department of Justice, 325 7th Street, NW, Room 500, Washington, DC 20530.

Re:

United States of America

Cargill Incorporated and Continental Grain Company.

Dear Mr. Fones: In my capacity as Attorney General of the State of South Dakota I am filing these written comments in opposition to the proposed consent decree in the above referenced action pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16.

As you are aware, prior to the Department of Justice's proposed consent decree, I joined the Minnesota Attorney General's letter expressing opposition to Cargill Inc.'s proposal to acquire the worldwide commodity marketing business of Continental Grain Company and urged the Department of Justice to oppose the proposed merger. It was, and still is my opinion, that the proposed merger may well reduce competition. The resulting consequences on South Dakota's agricultural industry could be serious. While the proposed consent decree would require Continental to divest itself of a couple of port, river and rail elevators and would prohibit Cargill from acquiring certain interests and require entry into a throughput agreement, these measures are simply inadequate to fully address the long term consequences of this merger of two global grain industry giants.

The Department of Justice, in its Complaint and Competitive Impact Statement, distinctly explained that if the acquisition of Continental's worldwide commodity marketing business is permitted to proceed, there will be a substantial lessening of competition for grain purchasing services to farms and other suppliers. As the Department of Justice further explained, this will likely result in many American farmers and other suppliers receiving lower prices for their grain and oil seed crops. The proposed consent decree simply does not go far enough to prevent the occurrence of the events contained in these legal documents.

The Cargill/Continental merger is not adequately addressed by simply dealing with market implications of the merger on a region by region basis. The geographic market for grain is nationwide with worldwide implications.

Further, it does not appear that Department of Justice has adequately considered whether the divested remnants of Continental will be a competitive force given the nature of the grain market. It also appears that the Department of Justice did not adequately consider the economic disparities that currently exist in the grain market power over this nation's farmers who are many in number and wield very limited power. The merger only increases this disparity.

The federal antitrust laws were enacted over a hundred years ago in part to address the large agricultural trusts that existed in the late 1800's. As a result these large trusts were broken up. Now, despite the antitrust laws, we are experiencing increasing concentration in all areas and aspects of the agricultural industry. The concentration is both vertical and horizontal in nature. Such concentration and resulting market power is the problem

that the antitrust laws were intended to rectify. If a merger of the magnitude of that proposed between Cargill and Continental is allowed to go forward as currently proposed in the consent decree, the purpose behind antitrust laws will be defeated. This would be a very big step backwards.

South Dakota has the smallest attorney general's office in the nation. I simply do not have the resources to take on this merger and neither do the offices for the surrounding states. No matter how much myself and the Attorneys General of the surrounding states are opposed to the merger we are not in a position to go to war with Cargill and Continental. Only the Department of Justice is sufficiently staffed and financed to contest a merger of this size.

As the Attorney General from an agricultural state, I have witnessed first hand the devastating impact upon ranchers and farmers that can result from market concentration by commodity purchasers. The proposed merger will only make the situation worse. The grain and livestock products produced by this nation's farmers and ranchers are the lifeblood to this great country. The Department of Justice should do whatever is necessary to preserve the ability of our farmers and ranchers to conduct business in a competitive, free and open market place. Only the prevention of the proposed merger is an adequate remedy. The proposed consent decree is simply inadequate and as such I object to its entry.

Yours truly,

Mark Barnett,

Attorney General, State of South Dakota.

Tab 3

American Agriculture Movement

AAM Inc., 2898 Audrain Road, #114, Sturgeon, MO 65284

October 10, 1999.

Chief, Transportation, Energy, & Agriculture Section, Antitrust Division, U.S. Department of Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20530.

Dear Roger W. Fones: Please place these comments in the

Federal Register

AAM wants to state its opposition to:

Cargill's announced purchase of Continental Grain's merchandising business;

Smithfield Foods purchase of Murphy Family Farms and Tyson Food's Pork Group.

Oligopoly is just a fancy word for monopoly. The Clayton & Sherman Antitrust Laws were enacted after the release of

THE JUNGLE

by Sinclair Lewis concerning excesses in the slaughter industry. Today's excesses are more extreme but hurt farmers and ranchers more directly and pose a threat to the consumer. The U.S. cheap food policy will fail with the continued disregard of these laws.

With the present trend to consolidation in the livestock industry, 3 or 4 vertically integrated companies not only disproportionately control several livestock sectors but food production, distribution and sales. This removes all pretense of fair and open competitive markets.

The Packers And Stockyard Act must also be rigidly enforced to protect small and medium livestock producers.

Sincerely,

Edward M. Fashing,

Missouri Vice President Communications.

Animal Welfare Institute

P.O. Box 3650, Washington, D.C. 20007-0150; Telephone: (202) 337-2332, Fax (202) 338-9478

October 11, 1999.

Hon. Gladys Kessler,

Fax: 202-354-3442.

Dear Judge Kessler: I am writing to respectfully request that the deadline for comment on the Cargill/Continental acquisition be extended by the Department of Justice for another sixty days to December 12, 1999.

It is my understanding that the Department of Justice states, “The court's role in protecting the public interest is one of ensuring that the government has not breached its duty to the public in consenting to the decree.”

I address this letter to you because of the Department's failure to act in the blatant current case affecting millions of animals suffering in hog factories: the acquisition by Smithfield Foods, first of Murphy Farms and not of Tysons hog component. All of these huge corporations employ the same cruel methods of hog production and, by their “vertical integration,” are destroying family farms at a terrifying pace.

Because of the studies of the Animal Welfare Institute and its long-term efforts to protect family farmers who raise pigs humanely, I am responsible, as President of the Animal Welfare Institute, for a detailed grasp of this huge problem, of which animal feed is a major component. The Cargill/Continental acquisition impinges heavily upon this feed and is harmful to the family farmers whose ability to compete in a system increasingly monopolized by agribusiness is being zeroed out.

The general public, likewise, is being cheated because the anti-trust laws are not protecting the public, as they are intended to do, by proper enforcement.

Respectfully yours,

Christine Stevens,

President.

P.S. You may be amused by the quotation from Art Buchwald which was recently brought to my attention through “The Agribusiness Examiner,” issued by A.V. Krebs, Editor and Publisher. I attach a copy of page 14.

ANIMAL WELFARE INSTITUTE

“THANK GOD FOR THE FREE ENTERPRISE SYSTEM”

In his book of essays Down the Seine and Up the Potomac (G. P. Putnam's Sons: 1977) political humorist Art Buchwald imagines a scenario where two corporations—Samson Securities and Delilah Company—asked the head of the Justice Department's Anti-Trust Division if the two companies could merge. At the time Samson Securities owned everything east of the Mississippi River, while Delilah Company owned everything west of the river. Initially, the head of the Anti-Trust Division indicated that he might have reservations about the merger of the only two companies left in the United States.

“Our department,” he said, “will take a close look at this proposed merger. It is our job to further competition in private business and industry, and if we allow Samson and Delilah to merge we may be doing the consumer a disservice.”

The chairman of Samson protested vigorously that merging with Delilah would not stifle competition, but would help it. “The public will be the true beneficiary of this merger,” he said. “The larger we are, the most services we can perform, and the lower prices we can charge.”

The president of Delilah backed him up. “In the Communist system the people don't have a choice. They must buy from the state. In our capitalist society the people can buy from either the Samson or the Delilah Company.''

“But if you merge,” someone pointed out, “there will be only one company left in the United States.”

“Exactly,” said the president of Delilah. “Thank God for the free enterprise system.”

The Anti-Trust Division of the Justice Department studied the merger for months. Finally the Attorney General made this ruling. “While we find drawbacks to only one company being left in the United States, we feel the advantages to the public far outweigh the disadvantages.”

“Therefore, we're making an exception in this case and allowing Samson and Delilah to merge.”

“I would like to announce that the Samson and Delilah Company is now negotiating at the White House with the President to buy the United States. The Justice Department will naturally study this merger to see if it violates any of our strong anti-trust laws.”

Catholic Charities, Diocese of Sioux City

October 6, 1999.

Roger W. Fones,

Chief, Transportation, Energy and Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, NW, Suite 500, Washington, D.C. 20530.

Dear Sir: We are writing in regard to the Department of Justice's “Final Judgement” relative to Cargill's purchase of Continental Grain's grain merchandising division.

It is our understanding that the Department filed a formal “Complaint” with the U.S. District Court charging that Cargill's purchase would “substantially lessen competition for the purchase of corn, soybeans and wheat in each of the relevant geographic markets, enabling it unilaterally to depress prices paid to farmers. The proposed transaction will also make it more likely that the few remaining grain trading companies that purchase corn, soybeans and wheat in these markets will engage in anticompetitive coordination to depress farm prices.”

We also understand that on the same day this “Complaint” was filed, the Department filed a consented “Final Judgement” agreed to by all parties.

This makes no sense to those of us who agree with the Department's own finding in its “Complaint”.

This purchas

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