OPINION AND ORDER
LEDDY, Chief Judge.
The issue posed by defendants’ and intervenor’s motion for summary judgment is whether the proposed merger of the Catamount National Bank (Catamount) and the County National Bank (County National) both of Bennington County, Vermont, considered solely from an antitrust viewpoint, violates the Clayton Act standard (15 U.S.C. § 18) embodied in the Bank Merger Act of 1966. (12 U.S.C. §§ 1828(c)(5) & (7) (B)).
The Government filed this action on November 5, 1970, basing this suit upon 15 U.S.C. § 25 and 15 U.S.C. § 18, commonly known as Sections 15 and 7 of the Clayton Act, respectively. Since the antitrust standards traditionally applied by the Courts are embodied in the Bank Merger Act of 1966, the Government’s failure to bring this action under the Bank Merger Act of 1966 does not constitute a defect in pleading nor does such failure oust the court of jurisdiction. United States v. First City National Bank, 386 U.S. 361, 363-364, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967).
The Court’s duty under the Bank Merger Act of 1966 is twofold. First, we are required to make a
de novo
inquiry into the validity of the proposed
merger
to determine whether the
merger
offends the traditional antitrust standards imposed by the Clayton Act. Secondly, if the merger does offend these standards, we must inquire whether the merger is justified by the “convenience and needs of the community.” United States v. Third National Bank, 390 U.S. 171, 178, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968); United States v. First City National Bank,
supra.
The law is clear that the defendant banks, to avail themselves of the justification defense of convenience and needs, must plead this defense and have the burden of proof in this regard. Neither the intervenor, Comptroller of the Currency, nor the defendant banks herein have pleaded the convenience and needs defense, but instead, in the posture of a motion for summary judgment, have addressed themselves to the threshold question of whether the proposed merger violates the provisions of Section 7 of the Clayton Act. For the purposes of this motion for summary judgment, the intervenor and defendants have admitted all material allegations of the Government,
claiming that while the market chosen by the Government is the relevant geographic market, it is immune from the prohibitive provisions of Section 7 of the Clayton Act as the market area chosen by the Government is not, as a matter of law, a “section of the country” thereunder.
The relevant geographic market claimed by the Government is defined as
the “Bennington, Vermont area”, including the townships of Arlington, Sunder-land, Shaftsbury, Glastenbury, Bennington, Woodford, Searsburg, Pownal, Stamford, and Readsboro, located in Bennington County in the State and District of Vermont. This area comprises approximately two-thirds of Bennington County, one of fourteen counties in Vermont.
Basically, defendant banks and the intervenor claim that this area is “economically, demographically and geographically” of insufficient size to constitute a section of the country within the intendment of Section 7 of the Clayton Act.
Defendant banks are two of four commercial banks operating in the geographic market selected by the Government. Vermont permits statewide branch banking for commercial banks,
and the defendants are the only two banks in the geographic market selected having their principal offices therein. The other banks in the area are branch offices of banks headquartered elsewhere in Vermont.
The Government alleges that Catamount is the second largest commercial bank doing business in the Bennington area, and that County National is the third largest commercial bank doing business in the area. The Government alleges that Catamount’s total assets are 20.4 million dollars while those of County National are 17.1 million dollars. If their merger were consummated, the resulting bank’s total assets of 37.5 million dollars would not be significantly lower than that of the proposed merger of the two banks in United States v. Phillipsburg National Bank and Trust Co., 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970), in which the resulting bank’s assets would have been 41.1 million dollars.
The population of the “Bennington area” was 23,733 in 1970.
The question raised
is well briefed by counsel for all parties. However, for a number of reasons, we question the advisability of deciding the ease upon a motion for summary judgment. Summary judgment in antitrust actions should be used with great caution.
Moreover, the criteria set forth by the Supreme Court and by other courts, as to what constitutes a section of the country within the intendment of Section 7 of the Clayton Act, lead us inescapably to the conclusion that the issue as to whether the market chosen is
such a “section of the country” is largely one of fact.
The Senate Committee report on Section 7 seems to reinforce this conclusion. It states:
What constitutes a section will vary with the nature of the products. Owing to the difference in the size and character of markets, it would be meaningless, from an economic point of view, to attempt to apply for all products a uniform definition of section, whether such a definition were based upon miles, population, income, or any other unit of measurement. A section which would be economically significant for a heavy durable product such as large machine tools, might well be meaningless for a light product, such as milk. [Sen.Rep.No. 1775, 81st Cong., 2d Sess. 6.]
In Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the Court noted that it is
clear that the “section” of the country to which the Act was to apply, referred not to a definite geographic area of the country, but rather the geographic area of effective competition in the relevant line of commerce. [370 U.S. at 320 n.35, 82 S.Ct. at 1521.]
And in
Phillipsburg, supra,
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OPINION AND ORDER
LEDDY, Chief Judge.
The issue posed by defendants’ and intervenor’s motion for summary judgment is whether the proposed merger of the Catamount National Bank (Catamount) and the County National Bank (County National) both of Bennington County, Vermont, considered solely from an antitrust viewpoint, violates the Clayton Act standard (15 U.S.C. § 18) embodied in the Bank Merger Act of 1966. (12 U.S.C. §§ 1828(c)(5) & (7) (B)).
The Government filed this action on November 5, 1970, basing this suit upon 15 U.S.C. § 25 and 15 U.S.C. § 18, commonly known as Sections 15 and 7 of the Clayton Act, respectively. Since the antitrust standards traditionally applied by the Courts are embodied in the Bank Merger Act of 1966, the Government’s failure to bring this action under the Bank Merger Act of 1966 does not constitute a defect in pleading nor does such failure oust the court of jurisdiction. United States v. First City National Bank, 386 U.S. 361, 363-364, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967).
The Court’s duty under the Bank Merger Act of 1966 is twofold. First, we are required to make a
de novo
inquiry into the validity of the proposed
merger
to determine whether the
merger
offends the traditional antitrust standards imposed by the Clayton Act. Secondly, if the merger does offend these standards, we must inquire whether the merger is justified by the “convenience and needs of the community.” United States v. Third National Bank, 390 U.S. 171, 178, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968); United States v. First City National Bank,
supra.
The law is clear that the defendant banks, to avail themselves of the justification defense of convenience and needs, must plead this defense and have the burden of proof in this regard. Neither the intervenor, Comptroller of the Currency, nor the defendant banks herein have pleaded the convenience and needs defense, but instead, in the posture of a motion for summary judgment, have addressed themselves to the threshold question of whether the proposed merger violates the provisions of Section 7 of the Clayton Act. For the purposes of this motion for summary judgment, the intervenor and defendants have admitted all material allegations of the Government,
claiming that while the market chosen by the Government is the relevant geographic market, it is immune from the prohibitive provisions of Section 7 of the Clayton Act as the market area chosen by the Government is not, as a matter of law, a “section of the country” thereunder.
The relevant geographic market claimed by the Government is defined as
the “Bennington, Vermont area”, including the townships of Arlington, Sunder-land, Shaftsbury, Glastenbury, Bennington, Woodford, Searsburg, Pownal, Stamford, and Readsboro, located in Bennington County in the State and District of Vermont. This area comprises approximately two-thirds of Bennington County, one of fourteen counties in Vermont.
Basically, defendant banks and the intervenor claim that this area is “economically, demographically and geographically” of insufficient size to constitute a section of the country within the intendment of Section 7 of the Clayton Act.
Defendant banks are two of four commercial banks operating in the geographic market selected by the Government. Vermont permits statewide branch banking for commercial banks,
and the defendants are the only two banks in the geographic market selected having their principal offices therein. The other banks in the area are branch offices of banks headquartered elsewhere in Vermont.
The Government alleges that Catamount is the second largest commercial bank doing business in the Bennington area, and that County National is the third largest commercial bank doing business in the area. The Government alleges that Catamount’s total assets are 20.4 million dollars while those of County National are 17.1 million dollars. If their merger were consummated, the resulting bank’s total assets of 37.5 million dollars would not be significantly lower than that of the proposed merger of the two banks in United States v. Phillipsburg National Bank and Trust Co., 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970), in which the resulting bank’s assets would have been 41.1 million dollars.
The population of the “Bennington area” was 23,733 in 1970.
The question raised
is well briefed by counsel for all parties. However, for a number of reasons, we question the advisability of deciding the ease upon a motion for summary judgment. Summary judgment in antitrust actions should be used with great caution.
Moreover, the criteria set forth by the Supreme Court and by other courts, as to what constitutes a section of the country within the intendment of Section 7 of the Clayton Act, lead us inescapably to the conclusion that the issue as to whether the market chosen is
such a “section of the country” is largely one of fact.
The Senate Committee report on Section 7 seems to reinforce this conclusion. It states:
What constitutes a section will vary with the nature of the products. Owing to the difference in the size and character of markets, it would be meaningless, from an economic point of view, to attempt to apply for all products a uniform definition of section, whether such a definition were based upon miles, population, income, or any other unit of measurement. A section which would be economically significant for a heavy durable product such as large machine tools, might well be meaningless for a light product, such as milk. [Sen.Rep.No. 1775, 81st Cong., 2d Sess. 6.]
In Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the Court noted that it is
clear that the “section” of the country to which the Act was to apply, referred not to a definite geographic area of the country, but rather the geographic area of effective competition in the relevant line of commerce. [370 U.S. at 320 n.35, 82 S.Ct. at 1521.]
And in
Phillipsburg, supra,
in reply to the argument that Phillipsburg-Easton could not conceivably be considered a market for antitrust purpose because it is not an “economically significant section of the country”, the Court said: “we found ‘relevant geographic markets’ in cities ‘with a population exceeding 10,000 and their environs.’ ” 399 U.S. at 365, 90 S.Ct. at 2044.
The Court in
Phillipsburg
also stated that it was a commercial reality that banks have a very localized business and that in terms of relevant geographic market
[t]he proper question to be asked * * is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. * * * This depends upon “the geographic structure of supplier-customer relations.” [399 U.S. at 362, 90 S.Ct. at 2042.]
In other words, the effective impact of the proposed merger must be stringently examined. The present state of the defendants’ and intervenor’s pleadings and affidavits on this motion set forth so few facts as to barely accommodate an educated guess, much less a critical detailed examination. The affidavits submitted by defendants and the intervenor pursuant to Rule 56(e) cite little more than the population figures of the area selected by the Government and the deposits of the four commercial banks doing business in the area. Certainly, upon the information at hand, it would be unwise to use these scant statistics to gauge adequately the effects upon competition in the area selected, or whether the geographic area selected should have been chosen in the first place. The Supreme Court in
Phillipsburg
scrutinized many factors to which we do not presently have access. For example, the Court considered the relationship of seven banks in the selected market in terms of assets, total deposits, demand deposits and loans. 399 U.S. at 354-355, 90 S.Ct. 2035. Notwithstanding the stringent examination by the Supreme Court in that case,
Phil
lipsburg
has engendered in some quarters a plea for consideration of even more detailed market data, such as real estate loans, commercial and industrial loans and individual loans, in short “the most precise market data available”. Survey Note, The Supreme Court, 1969 Term, 84 Harv.L.Rev. 30, 190 (1970).
For the reasons set forth in this opinion the Court finds that the pleadings, together with affidavits submitted, demonstrate genuine issues as to material facts. Accordingly, the defendants’, intervenor’s and Government’s motions for summary judgment are hereby denied. See Rule 56(c) F.R.C.P.