concurring:

I concur in the result reached by the majority opinion and with the discussion relative to the antitrust claims. However, I am not fully convinced that the commerce clause does not apply to the Territory of Guam under the authority of Anderson v. Mullaney, 191 F.2d 123 (9th Cir.1951), aff'd 342 U.S. 415 , 72 S.Ct. 428 , 96 L.Ed. 458 (1952). I find the distinction between the then Territory of Alaska and the Territory of Guam somewhat tenuous. However, I would not reach that issue because I would hold that the agreement in question places no burden on interstate commerce.

It is clear that the Airport Authority could grant to a concessionaire the exclusive right to sell merchandise in the airport after competitive bidding. No party disputes this. The plaintiffs maintain that the agreement does more than that; they claim that the agreement deprives them of a transportation facility essential to the shipment of their goods in interstate commerce. In my opinion, this is not the case. Plaintiffs can ship goods by air freight just as any other person can; nothing in the agreement deprives them of the use of the air carrier facility. What is denied to plaintiffs is the use of the airport to complete their sales transaction by delivering the merchandise to the passenger at the airport. The question is, thus, whether the commerce clause requires that the plaintiffs be allowed to use the airport to complete their sales transaction with the customer or whether the Airport Authority can require that delivery be made elsewhere. I would hold that the commerce clause does not prevent the Airport Authority from establishing this requirement. Goods delivered elsewhere to the passenger can be taken aboard by him and the plaintiffs are free to ship by air freight. There is no burden on interstate commerce, there is only a limitation on the use of the airport *1290 as a facility to complete the sale by delivery.