dissenting:

I respectfully dissent.

I would carry out the mandate of the United States Supreme Court and enter a brief order affirming the district court’s order.

I.

PREFATORY STATEMENT

The district court granted summary judgment in favor of the Atlantic Richfield Company (ARCO). It held that the USA Petroleum Company (USA) was not entitled to damages for a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 , because it had failed to demonstrate “antitrust injury.”

On October 7, 1988, Judges Nelson and Reinhardt reversed “the decision of the district court and remand[ed] the case for further proceedings consistent with this opinion.” USA Petroleum Co. v. Atlantic Richfield Co., 859 F.2d 687, 697 (9th Cir. 1988). Presumably the majority’s somewhat inscrutable mandate directed the district court to proceed to trial. The majority appeared to have ruled that USA demonstrated “antitrust injury,” entitling it to recover damages if it can meet the requisite standard of persuasion at trial. Id.

On May 14, 1990, the Supreme Court reversed this court’s decision. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 , 110 S.Ct. 1884 , 109 L.Ed.2d 333 (1990). The Court’s holding is stated in words that are free from ambiguity.

Id. at 335, 110 S.Ct. at 1889 .

Thus, the Supreme Court reversed the judgment of the majority of this panel that the district court erred in holding that USA could not recover damages under Section 1 of the Sherman Act for failure to show “antitrust injury.” Notwithstanding the clear direction of the Supreme Court to this *1077 court to enter an order affirming the district court, on November 13, 1991, USA filed a document styled as a “Motion for Clarification On Remand From Supreme Court” in which it boldly requested this court to “reverse the district court’s grant of summary judgment.” For reasons that find no support in the Supreme Court’s decision in this matter, the majority has declined to enter an order affirming the district court’s dismissal of this action for failure to demonstrate antitrust injury, and again reversed the order granting partial summary judgment on the Section 1 claim. I cannot join in the majority’s opinion. My oath of office requires me to follow the mandate of the Supreme Court.

II.

THE DISTRICT COURT MUST BE AFFIRMED BECAUSE USA FAILED TO INTRODUCE EVIDENCE OF PREDATORY PRICING

USA has asked this court to “clarify” the Supreme Court’s mandate that we affirm the grant of summary judgment in this action because USA failed to demonstrate antitrust injury by reversing the judgment of the district court. USA seeks to reverse an issue it lost in the district court because it failed to present any evidence to demonstrate that ARCO’s prices were predatory. A recitation of the procedural history of this case will readily demonstrate that this court should promptly terminate USA’s clever gamesmanship and enter a final order in this case that upholds the district court’s wise analysis of each issue, and respects the mandate of the Supreme Court.

A. Proceedings Before The District Court

USA alleged in its amended complaint that in violation of Section 1 of the Sherman Act, “ARCO and its co-conspirators have implemented severe and predatory price cuts.” After almost three years of exhaustive discovery covering a three-year period, ARCO filed a motion for a partial summary judgment on March 31, 1986. ARCO requested dismissal of USA’s Section 1 and Section 2 claims on the ground that USA could not satisfy the “antitrust injury” requirement of Section 4 of the Clayton Act because USA had failed to show that its prices were predatory. On April 28, 1986, USA entered into a stipulation for an order dismissing its Section 2 claim. On July 25, 1986, after the dismissal of its Section 2 claim, USA filed a document entitled “Statement of Genuine Issues”. USA stated the only issues in dispute were

USA did not contend that predatory pricing was a genuine issue of fact in dispute. USA relied instead on its theory that antitrust injury can be shown solely by proof of an unlawful conspiracy to fix below market retail gasoline prices. Thus any factual issue concerning predatory pricing was abandoned by USA prior to the hearing on ARCO’s motion for a partial summary judgment on the Section 1 claim.

A hearing on ARCO’s motion for a summary judgment on the Section 1 claim was conducted on October 14, 1986. During his argument in opposition to the motion, USA’s counsel conceded that it could not prove predatory pricing on the remaining Section 1 claim “even by the most liberal standard”. USA accurately described the essence of the October 14, 1986 proceedings in its opening brief before this court dated July 6, 1987.

(emphasis added).

Based on the uncontroverted facts, the district court concluded that USA had failed to make a showing that ARCO’s prices were predatory. In its order dismissing the Section 1 claim, the district court summarized its legal conclusion as follows:

As noted above, USA offered no evidence that the prices were predatory.

Contrary to the majority’s conclusion at page 1071, the record unmistakably demonstrates that USA expressly abandoned its predatory pricing claim before the district court. USA offered no evidence of predatory pricing. USA represented to the district court that the only genuine issues of material fact in dispute to be decided on summary judgment were whether ARCO had engaged in a conspiracy to fix prices below market level; and, if so, whether USA was injured by this conduct.

B. Issue On Appeal To The Ninth Circuit

On the first page of its opening brief before this court, under the heading “Statement Of The Issue” USA represented as follows:

“The sole issue is whether USA Petroleum Company’s lost sales and reduced profits from the defendant’s per se unlawful resale price maintenance conspiracy to fix artificial, below-market retail gasoline prices constitutes antitrust injury.” (emphasis added). On page 5 of its opening brief, USA summarized the issue raised by ARCO’s partial motion for a summary judgment regarding the Section 1 claim as follows:

Judges Nelson and Reinhardt accepted USA’s statement that it had presented a single issue for review. The majority in its first opinion in this matter, correctly identified the issue presented by USA as follows:

859 F.2d at 689 . (emphasis added).

The majority’s characterization of the prices fixed by ARCO as “nonpredatory” is supported by the record and USA’s candid admission that it “offered no proof of predatory pricing.” Appellant’s Opening Brief at 6. In reversing the dismissal of the Section 1 claim, the majority concluded that “the purposes and policies of the antitrust laws are best effectuated by recognizing the ‘standing’ of competitors to enforce the antitrust laws against price-fixing conspiracies.” 859 F.2d at 697 .

The majority refers the reader to several pages of USA’s opening and reply briefs in support of its conclusion that “USA was given no opportunity before the district court to prove that ARCO had priced pre-datorily_” Majority Opinion at 1074. Because anyone reading these opinions who is not a party or a member of this court has no ready access to USA’s briefs, I have attached each of the pages from the appellant’s briefs cited by the majority as an appendix to this dissent.

*1079 I have read the pages cited by the majority. Nowhere in its briefs does USA ask this court to reverse the judgment because it was not given an opportunity to prove that ARCO’s prices were predatory. Clearly, USA could not do so because of its judicial admission before the district court that it could not prove predatory pricing under the most liberal standard. Nowhere in its briefs does USA point to any ruling by the district court that prevented it from presenting evidence of predatory pricing. Thus, the record does not support the Majority’s bald assertion that the district court denied USA the opportunity to present evidence of predatory pricing. As noted above, USA conceded in its opening brief at page 6 that it “offered no proof on predatory pricing or dangerous probability of monopolization.” (emphasis added). It was only after the Supreme Court rejected USA’s argument that it could demonstrate antitrust injury by proof of a non-predatory vertical, maximum price-fixing scheme, that USA invented its spurious second issue. As discussed above on page 1078 of this dissent, prior to its defeat before the Supreme Court, USA informed this court on page 1 of its brief that the “sole issue” raised in this appeal concerned its contention that ARCO’s “•per se unlawful resale price maintenance conspiracy to fix artificial, below-market retail gasoline prices constituted antitrust injury.” I would affirm the district court precisely because USA was not denied the opportunity to present evidence of predatory pricing.

In its petition for a rehearing, ARCO characterized the question presented by USA’s appeal as follows: “The majority and dissenting opinions agree that [this] appeal presents the single issue, ‘whether a competitor’s injuries resulting from vertical non-predatory, maximum price fixing fall within the category of ‘antitrust injury.’ ” USA, in its opposition to the petition for a rehearing did not argue that ARCO’s recitation of the sole question before this court was erroneous.

In footnote 5 of its response to the petition for a rehearing, USA states that, “ARCO’s suggestion that the only anti-competitive effect of maximum vertical price-fixing in the setting of a predatory price is wrong. The Supreme Court has consistently condemned all price fixing because it artificially distorts the competitive process.” This argument demonstrates USA’s unyielding adherence to its mistaken notion that it was not required to show predatory price fixing to demonstrate antitrust injury.

C. The Issue Presented To The Supreme Court

The Supreme Court granted certiorari to resolve the sole issue raised in USA’s appeal to this court. Justice Brennan framed the issue before the Court as follows: “This case presents the question whether a firm incurs an ‘injury’ within the meaning of the antitrust laws when it loses sales to a competitor charging non-predatory prices pursuant to a vertical, maximum-price-fixing scheme.” 495 U.S. at 331 , 110 S.Ct. at 1887 (emphasis added).

The Court summarized the district court’s reasoning as follows:

Id. at 333, 110 S.Ct. at 1888 .

The Supreme Court reversed this court’s judgment. Id. at 335 , 110 S.Ct. at 1889 . The court rejected USA’s argument that:

Id. at 338, 110 S.Ct. at 1891 .

The Court held that “[a]lthough a vertical maximum-price-fixing agreement is unlawful under § 1 of the Sherman Act, it does not cause a competitor antitrust injury unless it results in predatory pricing.” Id. at 339, 110 S.Ct. at 1891-92 . The Court’s concluding paragraph reads as follows: “Respondent has failed to demonstrate that it has suffered any antitrust injury. The allegation of a per se violation does not obviate the need to satisfy this test.” Id. at 346 , 110 S.Ct. at 1895 . The principle announced by the Court in this case is free from doubt. Where, as here, a competitor failed to present any evidence of predatory pricing, the district court must dismiss a Section 1 claim even though the evidence shows an illegal maximum-price-fixing conspiracy.

Having determined that the majority had erred in reversing the district court’s dismissal of the Section 1 claim, the Court reversed the judgment of this court and remanded “for proceedings consistent with this opinion.” Id. In light of USA’s concession in its opening brief before this court that it had not presented any evidence of predatory pricing, this court was compelled by the Supreme Court’s mandate to enter a simple order stating: “In conformance with the mandate of the Supreme Court in this matter, 495 U.S. 328 , 110 S.Ct. 1884 , 109 L.Ed.2d 333 (1990), the judgment of the district court is affirmed.”

III.

THE MOTION FOR CLARIFICATION

The Supreme Court announced its decision in this matter on May 14, 1990. On November 13, 1991, prior to any proceedings in this matter consistent with the Court’s mandate, USA filed a document labelled as a “Motion for Clarification on Remand from the Supreme Court.” Since no action has been taken on the Court’s mandate by this court, there was no new order or judgment from this court that required clarification. No rule was cited by USA authorizing a “clarification” by this court of the import of the Supreme Court’s mandate. This court is in no position to “clarify” a decision of the Supreme Court. USA’s request for a clarification of the remand order should have been directed to the Supreme Court.

USA has successfully persuaded my distinguished colleagues that it is entitled to a determination by this court on the question whether the record shows that the district court erred in determining that USA had failed to present evidence of predatory pricing. The majority has concluded that it has the authority to reverse the district court once again, notwithstanding the mandate of the Supreme Court, because this court did not reach the predatory pricing issue in its first opinion.

The majority had no authority to reach the predatory pricing issue raised in USA’s amended complaint. USA abandoned the issue in its statement of genuine issues in dispute dated July 25, 1986. During the October 14, 1986 proceedings on ARCO’s partial motion for a summary judgment regarding the Section 1 claim, USA’s counsel, having stipulated to the dismissal of the Section 2 claim, confirmed to the district court that:

(emphasis added). When the court asked USA’s counsel whether he was required to show predatory pricing, Mr. Blecher replied: “All I have to show in my view is price-fixing. Price-fixing is in and of itself illegal.” (emphasis added). Mr. Blecher informed the court that he could not demonstrate on the evidence before the court that the price was predatory. Mr¡ Blecher argued that the court was not required to find that “the fixed price is predatory in order to hold the defendant liable.” As noted above, USA’s concession in its open *1081 ing brief that it offered no proof of predatory pricing dispels any reasonable doubt regarding its decision to rely solely on the ;per se price-fixing violation as sufficient evidence of antitrust injury.

The majority concludes that the district court “wrongly dismissed USA’s predatory pricing claims.” Majority Opinion at 1071. I can find no principled basis for this conclusion in the record. ARCO offered evidence that its prices were not predatory in support of its partial motion for a summary judgment on the Section 1 claim. USA informed the district court and this court that it offered no evidence of predatory pricing. Notwithstanding these admirable concessions, my colleagues have somehow persuaded themselves that the district court erred in holding that USA’s Section 2 claim must be dismissed because no evidence of predatory pricing was presented.

In response to ARCO’s argument that we should not consider USA’s predatory pricing theory because it was abandoned in the district court, the majority cites several portions of the amended complaint in which USA referred to predatory pricing. Majority Opinion at 1071-72. The majority has overlooked the fact that subsequent to the filing of the amended complaint, ARCO filed a motion for a partial summary judgment seeking the dismissal of the Section 1 claim. The Supreme Court has instructed that once a motion for a summary judgment has been filed, the plaintiff must present evidence to support the factual allegations in the complaint. Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2137 , 119 L.Ed.2d 351 (1992). The Court set forth this principle in the following passage:

Id.

USA has acknowledged that it failed to present in the district court, any evidence of predatory pricing. In holding that the district court erred in granting partial summary judgment on the Section 1 claim, because of its view that there was no genuine issue of fact in dispute concerning predatory pricing, the majority has failed to apply the foregoing principles.

The majority has concluded that the district court applied the wrong standard in evaluating the predatory pricing claim in USA’s amended complaint. We need not decide whether the district court was mistaken in stating that the proper test for the sufficiency of the evidence of predatory pricing is the dangerous probability of successful monopolization because USA offered no evidence of predatory pricing. Thus, the majority’s discussion of the proper standard to be applied in a Section 1 case to evaluate evidence of predatory pricing is an academic exercise that is beyond our Article III jurisdiction. Resolution of that interesting question must await a private antitrust case in which the plaintiff offered proof of predatory pricing. None was offered in this case.

Furthermore, as noted by the majority, it is boilerplate law that we must review a district court’s order granting or denying summary judgment independently, without deference to the district court’s legal rulings. Even if it were possible to ignore USA’s statement in its opening brief that the sole issue before this court is whether ARCO’s unlawful conspiracy to fix prices is sufficient to show antitrust injury without *1082 proof of predation, we would still be required to determine for ourselves whether the evidence presented by USA raised a genuine issue of material fact on the question of predatory pricing. In performing this task, we would be required to ignore the trial court’s legal pronouncements and search the record for evidence of predatory pricing. Performance of that task would be simple in this case because of USA’s admission that it offered no proof of predatory pricing in response to the partial motion for a summary judgment to dismiss the Section 1 claim. Thus, even the majority’s present creative reading of USA’s opening brief, which followed the reversal of its original opinion in this case by the Supreme Court, should compel it to affirm, and not reverse the district court’s order granting partial summary judgment on the Section 1 claim.

IV.

PROHIBITION AGAINST PIECEMEAL APPEALS

Under the law of this circuit, a party cannot assert one theory before this court and, upon losing, return again and assert an entirely different theory. In Nguyen v. United States, 792 F.2d 1500 (9th Cir.1986), we relied on the following principle in reversing an order granted upon a new theory that was inconsistent with our prior mandate:

Id. at 1503 (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir.1967)).

In this matter, USA fought the good fight before this court for a ruling that proof of a conspiracy to fix maximum prices was sufficient to demonstrate antitrust injury without proof that the prices were predatory. Its novel theory proved successful with a majority of this court. The Supreme Court has rejected this argument. Having lost that battle, USA now seeks to return to the district court to challenge ARCO’s motion for partial summary judgment on a factual theory it expressly abandoned because it offered no proof of predatory pricing.

CONCLUSION

I would not permit a litigant to return to the district court to pursue a theory asserted in its complaint that it deliberately abandoned in order to test the validity of a discrete argument in its opposition to a partial motion for a summary judgment. Our courts are too burdened with meritorious claims to permit skillful counsel to abuse their right of appeal by offering up successive claims until they finally find one that will persuade at least two judges of this court. This tactic is contrary to the mandate of the Supreme Court in this ease and violates this circuit’s prohibition against piecemeal review of motions for a summary judgment based on theories that could have been presented previously.

USA candidly admits it offered no evidence of predatory pricing in opposition to ARCO’s partial motion for a summary judgment. Instead of rejecting USA’s argument on the Section 1 claim that the district court erred in granting summary judgment precisely because USA failed to meet its burden of presenting facts demonstrating that it could prove the allegations in its complaint, the majority has concluded that the district court must conduct further proceedings on USA’s predatory pricing claims. The majority gives no clue to the district court as to the nature of these proceedings. Must the district court permit USA to now attempt to offer proof of predatory pricing it concedes it failed to present at the summary judgment proceedings? Does the majority’s reversal of the partial summary judgment order dismissing the Section 1 claim mean that that issue must now be presented to a trier of fact notwithstanding USA’s failure to present any evidence raising a genuine issue of *1083 material fact concerning the allegations in its complaint that ARCO’s prices were predatory?

The Supreme Court ruled in a landmark decision that Judge Nelson and Judge Reinhardt erred in holding that USA had demonstrated antitrust injury on the record presented to the district court. The same judges, after again reviewing the same record, have refused to carry out the Supreme Court’s mandate. Once again, the majority has allowed itself to be guided into the same error. I cannot join its number.

APPENDIX TO DISSENT

Page 7 of USA’s opening brief reads as follows:

The Supreme Court has unequivocally held that price-fixing is anticompetitive regardless of the level of the fixed price or the defendant’s market power. By requiring USA to show that ARCO fixed predatory prices and had a dangerous probability of successful monopolization before ARCO’s vertical price-fixing could be anti-competitive and cause USA antitrust injury, the district court contravened Supreme Court authority and impermissibly engraft-ed Section 2 elements onto USA’s Section 1 price-fixing case.

These mistakes led the district court inexorably to conclude that USA’s injury was attributable only to legitimate price competition (in the form of per se unlawful price-fixing), and was not antitrust injury. The district court’s decision effectively repeals the per se rule against maximum resale price-fixing. Once maximum resale price-fixing is deemed per se anticompetitive, it cannot constitute procompetitive conduct for purposes of determining antitrust injury. Antitrust injury was not intended as a vehicle for rewriting the substantive antitrust laws.

The district court’s erroneous decision must be reversed. Given that price-fixing, without more, is per se anticompetitive, USA’s lost sales and reduced profits resulting directly from selling gasoline in competition with fixed instead of market-determined prices constitutes antitrust injury. USA’s injury reflects the very market distortion the

Pages 15-20 of USA’s opening brief read as follows:

B. The Supreme Court Has Specifically Held That Anticompetitive Conduct Condemned Under Sherman Act § 1 Does Not Require Threatened Monopolization.

The district court’s second error was to hold, as argued by ARCO, that a Section 1 per se offense is anticompetitive and causes antitrust injury only when the defendants have a dangerous probability of successfully monopolizing the market. (CR 83: Exhibit 1 at 35; CR 91: 3.)

The Supreme Court has specifically rejected the court’s theory. In Socony-Vac-uum, the Court expressly held that price-fixing is anticompetitive even absent market power, and rejected a requirement of actual or threatened monopoly power. 310 U.S. at 224, 60 S.Ct. at 844-45; see also United States v. McKesson & Robbins, Inc., 351 U.S. 305, 309-10 , 76 S.Ct. 937, 940 (1956). The Court in Socony-Vacuum acknowledged that:

Id. at 224-25, n. 59, 60 S.Ct. at 845 n. 59. (footnote omitted)

The district court’s ruling contravenes the Sherman Act’s statutory scheme re *1084 quiring different degrees of anticompeti-tive effect for concerted conduct and single firm activity. Whereas Section 1 deems anticompetitive conspiracies in restraint of trade, Section 2 condemns as anticompeti-tive only single firm conduct threatening monopolization. Greyhound Computer Corp. v. International Business Machines Corp., 559 F.2d 488, 504 (9th Cir.1977), cert. denied, 434 U.S. 1040 , 98 S.Ct. 782 (1978); H & B Equipment Co. v. International Harvester Co., 577 F.2d 239, 243 (5th Cir.1978). The Supreme Court rejected any merging of the different standards of liability in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 , 104 S.Ct. 2731 (1984).

Id. at 767-68, 104 S.Ct. at 2739-40 (emphasis added) (citations omitted see also Western Concrete Structures Co. v. Mitsui & Co. (U.S.A.), Inc., 760 F.2d 1013, 1017 (9th Cir.), cert. denied, — U.S., 106 S.Ct. 230 (1985) (“[Sjection 1 ... requires a conspiracy, but does not require monopolizing or attempting to monopolize.”).

This distinction between single firm and concerted conduct necessarily means that the antitrust laws condemn concerted activity that would be perfectly lawful if done by a single firm. Thus, the Supreme Court stated that a conspiracy to fix low prices is per se unlawful under Sherman Act Section 1 even when a single firm setting the same price may escape liability under Sherman Act Section 2. Fisher v. City of Berkeley, 475 U.S. 260 , 106 S.Ct. 1045, 10-49 (1986). (footnote omitted) The district court here, however, ruled that maximum vertical price-fixing requires the § 2 elements of predatory pricing and market power to be anticompetitive and capable of causing antitrust injury. The court’s decision directly contradicts the Sherman Act’s statutory scheme as well as the substantive case law and must be rejected.

Pages 15-23 of USA’s reply brief read as follows:

ARCO would have this Court hold that maximum vertical price-fixing is anticom-petitive for violation purposes but pro-competitive for antitrust injury purposes. This sort of semantic gymnastics demeans the judicial process. No court has ever suggested that price-fixing should not only not be illegal, but encouraged. Yet this is what ARCO asks this Court to hold.

Antitrust injury analysis was not, however, intended to afford defendants the opportunity to rewrite the antitrust laws. ARCO’s unprecedented standard is wholly contrary to Sherman Act’s statutory scheme and the authority defining price-fixing as anticompetitive regardless of the *1085 level of price and the absence of actual or threatened monopoly power.

A. ARCO’s Argument that Price-Fixing Must Amount To Predatory Pricing with a Dangerous Probability of Successful Monopolization Squarely Contradicts the Sherman Act’s Statutory Scheme.

ARCO’s essential argument is that price-fixing must meet the standards for single firm pricing conduct under Sherman Act § 2. The plaintiff must therefore prove that the defendant fixed “predatory prices” and had a dangerous probability of successfully monopolizing the market. The Supreme Court and Ninth Circuit have rejected this argument as inconsistent with the Sherman Act’s statutory scheme.

The Supreme Court in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 , 104 S.Ct. 2731 (1984), expressly held that for § 1 offenses, “it is not necessary to prove that concerted activity threatens monopolization.” Id. at 767-68, 104 S.Ct. at 2739-40 ; see also Western Concrete Structures Co. v. Mitsui & Co. (U.S.A.), Inc., 760 F.2d 1013, 1017 (9th Cir.), cert. denied, 106 S.Ct. 230 (1985). Specifically, the Court has held that price-fixing has anti-competitive effects even absent the actual or threatened market power required under Sherman Act § 2. Socony-Vacuum, 310 U.S. at 224-25 n. 59, 60 S.Ct. at 845 n. 59.

In the context of maximum price-fixing, the Supreme Court has explicitly held that the antitrust laws deem maximum price-fixing anticompetitive even - though the same economic effect, when created by unilateral pricing conduct, would be considered procompetitive under Sherman Act § 2. Fisher v. City of Berkeley, 106 S.Ct. 1045, 1049 (1986). (footnote omitted). Finding that Berkeley’s rent control ordinance constituted unilateral government conduct, the Court did not invalidate the ordinance. Id. at 1049-51. The Ninth Circuit followed the Fisher holding and rationale in Miller v. Hedlund, 813 F.2d 1344, 1349 (9th Cir. 1987). (footnote omitted)

The Supreme Court leaves no doubt that the Sherman Act defines anticompetitive conduct differently for price-fixing and unilateral pricing conduct. For this reason, the Court has rejected the defense that the price-fixing arrangement fixed competitive prices and refused to assume the burden of making that determination. E.g., Socony-Vacuum, 310 U.S. at 221-22, 60 S.Ct. at 843; United States v. McKesson & Robbins, Inc., 351 U.S. 305, 309-10 , 76 S.Ct. 937, 940 (1946). For this reason, the Court has also held that price-fixing is anticom-petitive regardless of the defendant’s actual or threatened market power. Socony-Vacuum, 310 U.S. at 224-25 n. 59, 60 S.Ct. at 845 n. 59. ARCO’s attempt to merge the price-fixing and predatory pricing standards is wholly without support in either the case law or the statutory scheme.

B. ARCO’s Cited Authorities Do Not Support ARCO’s Argument that Price-Fixing is Anticompetitive Only When It Satisfies the Standard Applicable to Single Firm Pricing Conduct.

ARCO does not attempt to distinguish the vast Supreme Court authority holding that price-fixing and unilateral predatory pricing are distinct and separate offenses subject to different definitions of anticom-petitive conduct. Instead, with one exception ARCO continues to cite non-price-fixing cases and urge the adoption of predatory pricing and market power requirements applicable to single firm conduct.

Quoting elliptically from this Circuit’s opinion in Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018 (1982), ARCO misreads that case to support its proposition that price-fixing must amount to predatory pricing to injure competition. Murphy Tugboat actually stands for the opposite proposition. The plaintiff in Murphy Tugboat alleged that defendant conspired with its pilot/employees to fix the fees charged to customers for pilot services. The Ninth Circuit held that Murphy could not complain of the defendant’s price-fixing, not because it was a competitor, as ARCO argues, but because it was not a competitor in the pilot services market, (footnote omitted) 658 F.2d at 1259 . This is precisely how the Ninth Circuit has interpreted Mur *1086 phy Tugboat. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 , 1034 n. 27 (9th Cir.1982), ce rt. denied, 459 U.S. 825 (1982). (footnote omitted)

The only case which appears to merge price-fixing and predatory pricing is Jack Walters & Sons Corp. v. Morton Building, Inc., 737 F.2d 698 (7th Cir.), cert. denied, 469 U.S. 1018 (1984). As discussed at length in USA’s Opening Brief at pp. 26-29, Judge Posner used antitrust injury analysis to circumvent the substantive laws’ judgment that maximum vertical price-fixing is anticompetitive. The Jack Walters opinion holds simply that maximum vertical price-fixing constitutes pro-competitive conduct that cannot cause any plaintiff antitrust injury. 737 F.2d at 708-09 (characterizing maximum vertical price-fixing as “lawful price competition”).

Even under ARCO’s theory, Jack Walters was wrongly decided. The plaintiff in Jack Walters was a distributor who sued his supplier. ARCO concedes that such a plaintiff, an intrabrand competitor, suffers antitrust injury. ARCO Brief at 17.

Moreover, the Jack Walters holding cannot be squared with the per se rule’s conclusive presumption that maximum vertical price-fixing is anticompetitive. In response to Judge Posner’s failure to reconcile his antitrust injury holding with the per se rule’s presumption that the defendant’s conduct is anticompetitive, one commentator candidly observed: “I cannot escape the conclusion that Judge Posner — growing impatient with Congress’s or the Supreme Court’s refusal to overrule Albrecht — has decided to undertake that task on his own.” Hovenkamp, Chicago and Its Alternative, 1986 Duke L.J. 1014 , 1026. (footnote omitted).

Nor does the Supreme Court’s decision in Cargill, Inc. v. Monfort of Colorado, Inc., 107 S.Ct. 484 (1986), support ARCO’s predatory pricing requirement. The plaintiff in Cargill alleged that the post-merger entity would engage in a “cost-price squeeze” that would not, however, amount to predatory pricing. The Court held that the antitrust laws condemn single firm pricing conduct as anticompetitive .only when it amounts to predatory pricing. Therefore, absent predatory pricing allegations, the plaintiff could not show antitrust injury. Id. at 491-92 . The Court did not, however, suggest that it intended to overrule Cop-perweld and adopt a predatory pricing standard for concerted price-fixing. Nowhere in the opinion does the Court even mention price-fixing.

ARCO nevertheless argues that Car-gill ’s holding should apply to. concerted price-fixing because the antitrust injury requirement applies to all private antitrust damages actions. ARCO Brief at 28-29 ARCO misunderstands antitrust- injury analysis. As Brunswick makes clear, antitrust injury analysis is not divorced from the substantive antitrust laws. 429 U.S. at 487 , 97 S.Ct. at 696 . The threshold inquiry is whether the substantive laws condemn the defendant’s conduct, the source of the plaintiff’s injury, as anticompetitive. Cargill, 107 S.Ct. at 491 ; Fishman v. Estate of Wirtz, 807 F.2d 520, 535-36 (7th Cir.1987), as amended, 1987-1 Trade Cas. (CCH) ¶ 67,536 . The Court’s holding in Cargill that the plaintiff had not suffered antitrust injury was premised on its specific finding that the defendant’s unilateral pricing conduct did not violate the antitrust laws. 107 S.Ct. at 492 . This holding cannot have any application to concerted price-fixing, an entirely distinct offense.

Finally, ARCO cites a myriad of non-price-fixing eases to argue that maximum vertical price-fixing does not injure competition unless the defendant has a dangerous probability of successful monopolization. While ARCO acknowledges that the great weight of Supreme Court authority deems maximum vertical price-fixing anticompeti-tive even when the defendant does not threaten monopoly, ARCO nevertheless argues that market power is required for antitrust injury. ARCO does not cite one case that even suggests that antitrust violations an antitrust injury require different degrees of anticompetitive effect. Antitrust injury analysis merely asks whether the plaintiff's injury is the type of injury *1087 expected to flow from the violation’s anti-competitive effects.

The sole § 1 case ARCO cites in support of its threatened monopolization requirement is Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 (1986). The plaintiffs in Matsushita alleged that the defendants conspired to allocate markets and price pre-datorily within their respective territories. Contrary to ARCO’s argument that the Court defined predatory pricing as requiring threatened monopolization, the Court expressly declined to define predatory pricing. Id. at 1355 n. 8. The Court discussed the costs and benefits of predatory pricing strategies only to determine the quantum of proof necessary to defeat summary judgment as to the existence of a conspiracy. Id. at 1356. The Ninth Circuit has recognized that the Matsushita decision does not affect the existing definitions of predatory pricing Marsann Co. v. Brammall, Inc., 788 F.2d 611, 615 (9th Cir.1986).

That Matsushita did not enunciate any specific requirements, including market power, for predatory pricing was made in the Supreme Court’s subsequent decision in Cargill. The Court in Cargill expressly stated that predatory pricing strategies may occur even when the defendant lacks market power. 107 S.Ct. at 495 n. 15. Certainly, USA should be entitled to show that ARCO, as the dominant supplier of gasoline in the western United States, restrained competition through its maximum price-fixing scheme.

IV.

CONCLUSION

As a competitor and direct victim of ARCO’s scheme to fix resale prices below the level that would have prevailed in an unrestrained market, USA has clearly suffered antitrust injury.