Dissenting:

This is a case of first impression. The panel is unanimous in agreeing that this appeal requires us to interpret critical language in the Foreign Trade Antitrust Improvements Act (FTAIA or “Act”), 15 U.S.C. § 6a (1994). We must express a judicial interpretation to a single word, “direct,” in the FTAIA’s provision of “direct, substantial, and reasonably foreseeable effect” on United States trade or commerce when foreign activity is involved. The flash point of controversy, however, is whether the word “direct” in the FTAIA is a new dimension added to traditional antitrust law that involves trade or commerce with foreign nations, as the majority concludes, as did the district court, or, as urged by the government in this appeal, is merely a codification of antitrust law in place prior to the enactment of FTAIA. I agree with the government’s interpreta *684 tion, and accordingly, respectfully dissent. I would reverse the judgment of the district court. 1

I.

Our analysis, perforce, must begin with the statutory language of FTAIA:

15 U.S.C. § 6a (emphasis added).

Although other appellate courts have dodged the critical issue on which this appeal turns, 2 this panel has decided to face the dragon in his teeth and stop tap dancing around the meaning of the word “direct.” As did the district court in this case, the majority adopts the view that something new has been added by Congress in 1994 in enacting FTAIA — something that restricts the operation of the Sherman Act when foreign conduct is involved, a new ingredient requiring proof of a “direct” effect on American commerce.

I take a contrary view. I believe that the new statute merely codified existing antitrust law in the use of the word “direct.” And so interpreted, under the facts in this case, which I adopt as laid down by the majority, a result contrary to that of the district court is mandated for the reasons that follow in detail.

II.

The district court erred in dismissing the Complaint for lack of jurisdiction under the FTAIA by determining that the government failed to allege a “direct, substantial, and reasonably foreseeable effect” on United States commerce.

“We review de novo a district court’s dismissal for lack of subject matter jurisdiction .... The district court’s findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error.” La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001) (citations omitted).

The leading Supreme Court case discussing the FTAIA is Hartford Fire Insurance Co. v. California, 509 U.S. 764 , *685 113 S.Ct. 2891 , 125 L.Ed.2d 612 (1993). Although jurisdiction was conceded by both parties in that case and the Court was only interested in issues of comity, 3 it engaged in a significant discussion of the FTAIA’s import:

Hartford Fire, 509 U.S. at 796 n. 23, 113 S.Ct. 2891 .

In so stating the Court resolved any tension between the teachings of American Banana Co. v. United Fruit Co., 213 U.S. 347 , 29 S.Ct. 511 , 53 L.Ed. 826 (1909) and United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir.1945) (Alcoa ). In United States v. Nippon Paper Industries Co., 109 F.3d 1 (1st Cir.1997), the court explained:

109 F.3d at 3-4 (footnote omitted).

I now turn to the issue that divides this panel. Does “direct” in the phrase “direct, substantial, and reasonably foreseeable effect” reflect a statutory restriction of the operation of the Sherman Act, or does it merely codify existing case law?

A.

For over a century, at least since 1898, the jurisprudence of antitrust law has required that for Section 1 of the 1890 Sherman Act to apply there must be a “direct effect” on interstate commerce. Congress’ enactment of the FTAIA in 1982' — promulgating the statutory language “direct, substantial, and reasonably foreseeable effect” on United States trade or commerce when foreign activity is involved — merely codified the direct effects requirement that has been set forth in teachings of (1) antitrust case law for over 100 years, (2) the Restatement (Second) of Foreign Relations Law of the United States (1965), (3) lead *686 ing treatises of distinguished academics, (4) the Antitrust Guide for International Operations of the United States Department of Justice, Antitrust Division, January 26, 1977 and (5) the Report to Accompany Resolutions Concerning Legislative Proposals to Promote Export Trading of the American Bar Association, Section of Antitrust Law, October 26,1981.

We thus learn from the legislative history of the FTAIA:

H.R.Rep. No. 97-686 at 5-6 (1982), reprinted in 1982 U.S.C.C.A.N. 2487, 2490-2491 (House Report).

The use of “direct effect” is historically an integral part of antitrust law. “As Professors Areeda and Turner have said, the federal courts have been invested ‘with a jurisdiction to create and develop an “antitrust law” in the manner of the common law courts.’ I Areeda & Turner, Antitrust Law ¶ 106, at 15 (1978).” Nippon Paper, 109 F.3d at 9 (Lynch, J. concurring). I first turn to the antitrust cases of the Supreme Court announcing or explicitly endorsing the “direct effects” test.

B.

My starting point is the seminal cases in 1898. After some very broad language in United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 , 17 S.Ct. 540 , 41 L.Ed. 1007 (1897), that would seem “to reach every minor restraint ... [t]he Court cut back the § 1 dragnet in Hopkins [v. United States, 171 U.S. 578 , 19 S.Ct. 40 , 43 L.Ed. 290 , (1898)]. ...” 4 Phillip E. Aree-da & Herbert Hovenkamp, Antitrust Law ¶ 1501, at 339 (2d ed.2000). The Court in Hopkins declared that the Sherman Act

171 U.S. at 600 , 19 S.Ct. 40 .

Earlier the same year the Court had held:

United States v. Joint-Traffic Ass’n, 171 U.S. 505, 568 , 19 S.Ct. 25 , 43 L.Ed. 259 (1898) (emphasis added).

These clear statements by the Court enunciated the direct effects test in actions brought under Section 1 of the Sherman Act. In the words of the prominent commentators Areeda and Hovenkamp: “The *687 Court then excepted from the statute indirect or remote restraints.” Areeda & Ho-venkamp, supra, ¶ 1501, at 339.

Then in 1945 came Learned Hand’s formulation in Alcoa-, “the ingot fabricated by ‘Alcoa,’ necessarily had a direct effect upon the ingot market.” 148 F.2d at 424 (emphasis added). To say, as does the majority, that “[ujnlike the FTAIA, the Alcoa test does not require the effect to be “direct[J” ” (Maj. Op. at 679), runs counter to the explicit teachings of Alcoa. My view is endorsed by the authoritative commentators, Areeda and Hovenkamp:

4 Phillip E. Areeda & Herbert Hoven-kamp, Antitrust Law ¶ 277 at 363 (2d ed.2000) (emphasis added).

The “direct effects” test has thus been part and parcel of antitrust law before and after the passage of FTAIA in 1982. Indeed it was an integral part of antitrust jurisprudence for at least 84 years before Congress used the word “direct” in its formula on what constitutes foreign conduct affecting United States commerce in the FTAIA. After over 100 years of antitrust cases, the Supreme Court has not diluted the “direct effects” requirement. On the contrary, in 1951 the Court approved the district court’s use of this explicit test in a case, similar to the one at bar, in which there was a foreign restraint on commerce in the United States.

In United States v. Timken Roller Bearing Co., 83 F.Supp. 284 (N.D.Ohio 1949), the district court had before it evidence that the defendant and two foreign manufacturers had made and sold for over 20 years a substantial portion of the world’s production of anti-friction bearings by engaging in market allocation, price fixing and other illegal restraints of trade. As part of its defense, Timken argued that the cartel agreements had been made in foreign countries and that the Sherman Act could not be applied extraterritorially. In rejecting the argument the court held:

Timken, 83 F.Supp. at 309 (emphasis added, citation omitted). When the defendant repeated the same argument on appeal, the Court rejected its contention, stating: “[T]he trial judge after a patient hearing carefully analyzed the evidence in an opinion prepared with obvious care. Appellant’s lengthy brief has failed to establish that there was error in making any crucial, or even important, ultimate or subsidiary finding.” Timken Roller Bearing Co. v. United States, 341 U.S. 593, 597 , 71 S.Ct. 971 , 95 L.Ed. 1199 (1951) (footnote omitted).

That there is not a host of cases emphasizing this very point attests to the requirement that showing a direct effect on interstate commerce is a sine qua non of antitrust liability. Otherwise, as the Court stated, “there would scarcely be an agreement or contract among business [persons] that could not be said to have, indirectly or remotely, some bearing upon interstate commerce, and possibly to restrain it.” Hopkins, 171 U.S. at 600 , 19 S.Ct. 40 .

C.

In any event, the American Law Institute, composed of the leading judges, academics and lawyers, included the “direct effects” requirement in the relevant Re *688 statement (Second) of Foreign Relations Law of the United States (1965) that was in effect at the time the Congress enacted the FTAIA in 1982.

Section 18, of the Restatement (Second) of Foreign Relations Law of the United States (1965) provided in relevant part:

§ 18 (emphasis added).

In light of the foregoing, it cannot be said that in its 1982 enactment the Congress intended to promulgate a new standard for restricting the operation of the Sherman Act by using the language “direct, substantial, and reasonably foreseeable effect,” when in fact the existing case law had been using the identical formulation, to wit, “(ii) the effect within its territory is substantial: (iii) it occurs as a direct and foreseeable result of the conduct outside the territory.” Id. Indeed, the Court of Appeals for the Third Circuit cited Section 18 of the Restatement as reflecting the components of the “intended effects” test in extraterritorial Sherman Act cases. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1292 (3d Cir.1979).

In 1986, when the bench, bar and profes-soriate promulgated the Restatement (Third) of Foreign Relations Law of the United States, the same formulation was retained, albeit in succinct form:

§ 403(2) (emphasis added).

D.

The treatises on antitrust law also reiterate that the “direct effects” test was integral to antitrust law when Congress enacted the FTAIA.

In Volume 1 of James Atwood, Kingman Brewster & Spencer W. Waller, Antitrust and American Business Abroad (3d ed.2002), the commentators analyze leading antitrust cases preceding the 1982 Congressional action that discussed “direct and substantial effect upon trade” and “ ‘direct’ effect on United States commerce.” § 6, at 18 (quoting United States v. Gen. Elec. Co., 82 F.Supp. 753, 884 (D.N.J.1949) and Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F.Supp. 92, 103 (C.D.Cal.1971)).

In General Electric Co., District Judge Forman explained that “the second requirement for the finding of a violation on the part of Philips [is] that its activities must have had a direct and substantial effect upon trade.... ” 82 F.Supp. at 891 .

In Occidental Petroleum, the court set forth views of two leading commentators:

331 F.Supp. at 102-103 (emphasis in original); see also Todhunter-Mitchell & Co. v. Anheuser-Busch, Inc., 383 F.Supp. 586, 587 (E.D.Pa.1974) (“Restraints which directly affect the flow of foreign commerce into or out of this country are subject to the provisions of Section 1 of the Sherman Act. Von Kalinowski, Antitrust Laws and Trade Regulations, Vol. 1. § 5.02(2) (1971).”).

Again turning to Areeda and Hoven-kamp, the distinguished commentators jump into the new-law-versus-codification-of-the-old fray and persuasively argue that codification is the “better view”:

Areeda & Hovenkamp, supra, ¶ 272, at 362-363 (footnotes omitted).

E.

I now turn to the legislative history of the FTAIA for two distinct purposes. First, I emphasize that in formulating the expression specifically set forth in Section 18 of the Restatement (Second) of Foreign *690 Relations Law of the United States (1965), “such conduct has a direct, substantial, and reasonably foreseeable effect,” Congress intended to voice its disagreement with some lower court decisions that did not require a “substantial” effect. My second purpose is to emphasize the conclusions sent to Congress by the United States Department of Justice and the American Bar Association, Section of Antitrust Law that “direct,” “substantial” and “foreseeable” constituted a correct formulation of existing law.

What concerned Congress was twofold: first, that in some private actions a few lower courts seemed to discuss a de mini-mus effect, a much lesser standard than that of the “substantial effects” test; 4 and, second, to make explicit the requirement that the effect be “reasonably foreseeable” rather than based on “intent.” House Report, supra, at 2494.

In this regard, what the House Report may have suggested as “new” law is what the Department of Justice reported to Congress as existing law:

Antitrust Division, Antitrust Guide for International Operations 6 (1977) (footnotes omitted).

The House Report acknowledged this view: “The Justice Department in its Antitrust Guide takes the position that only ‘foreseeable’ effects on U.S. commerce should result in U.S. antitrust jurisdiction.” House Report, supra, at 2493.

Moreover, the American Bar Association Section of Antitrust Law submitted a report to Congress in October of 1981 commenting on the purpose and effect of the various pending legislative proposals on extraterritorial antitrust law. The ABA Antitrust Section concluded that “any business uncertainty as to the applicability of the antitrust laws to foreign trade would seem to be an overreaction, for there is, with rare exception, no significant inconsistency between judicial precedents and the Justice Department’s view of the‘effects’ test.” American Bar Ass’n, Sec. of Antitrust Law, Report to Accompany Resolutions Concerning Legislative Proposals to Promote Export Trading 10 (1981) (emphasis in original). The Antitrust Section Report explained further:

Id. at 13 (footnotes omitted). The ABA Antitrust Section, in a footnote, quoted another. 1981 report it authored that states:

Id. (quoting American Bar Ass’n, Sec. of Antitrust Law, U.S. Antitrust Law in International Patent and Know-How Licensing 4-5 & nn. 16-18 (1981)) (emphasis added). It is from this conclusion that the Antitrust Section Report recommended to Congress the language “direct, substantial, and foreseeable effect” — to succinctly codify, for the purpose of clarification, existing antitrust case law.

When originally introduced in Congress, the FTAIA included only the words: “direct and substantial effect.” H.R. 2826, 97th Cong. (1981). This indicates that the debate centered on the concept of foreseeability, not direct effects. But even then, the legislation as proposed did not reflect a change in existing case law, as the Antitrust Section Report explained: “H.R. 2326 [and its companion bill S. 795] is intended, without changing the law substantively, to use the 1977 Justice Department [Antitrust] Guide’s wording to clarify the ‘effects’ test to be applied in foreign commerce cases.” Antitrust Section Report, supra, at 29-30 (emphasis added) (citing Hearing on S. 795, 97th Cong. 4 (1981) (Statement of William F. Baxter, Esq.) (“We understand that this bill is not intended to work any significant changes in the law, but rather to restate current enforcement policy and judicial interpretations governing the applicability of the antitrust laws to joint export activity.”)).

In commenting on the Antitrust Section Report, the House Report noted: “An ABA Antitrust Section analysis has concluded that, despite the variations in wording,’there is, with rare exception, no significant inconsistency between judicial precedents and the Justice Department’s view of the effects test.’ Antitrust Section Report at 10 (emphasis in the original).” House Report, supra, at 2490-2491.

F.

In sum, the promulgation of the statutory language “direct, substantial, and reasonably foreseeable effect” on United States trade or commerce when foreign activity is involved was merely a codification of the direct effects requirement that had been set forth in teachings of ruling case law, the Restatements of Foreign Relations Law, leading treatises of distinguished academics, the Department of Justice’s 1977 Antitrust Guide and the American Bar Association’s 1981 Antitrust Section Report. Although the panel agrees on the standard to be applied, the “direct effects test,” I respectfully disagree with the contrary view expressed by my colleagues of the majority that the word “direct” in the FTAIA is a new dimension of antitrust law. Whereas the majority interprets the term “direct” from scratch, I am guided by contemporary definitions of the term as well as relevant precedent, including that which preexisted the FTAIA, and therefore I diverge from my colleagues’ interpretation of the “direct effects test” as applied to this case.

III.

The United States sufficiently alleged that the Restrictive Clause has a “direct” effect on United States commerce under the most useful and sensible interpretation of that term. The district court did not attempt to define direct, but instead simply accepted LSL’s argument that the effect of the Restrictive Clause was not direct because the clause “involves the development of seeds, not tomatoes.” This ruling was simply wrong.

It was as if to say that restricting vanadium ore, which was processed into vanadium oxide in Canada and then into ferrova-nadium, had no direct effect in the United *692 States markets, whereas here it was purchased by American steel companies for use as an alloy in hardening steels. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 , 82 S.Ct. 1404 , 8 L.Ed.2d 777 (1962). Likewise, we could not say that restricting sisal, the fiber of the henequen plant that is native to Mexico, had no effect on American commerce, because here the fabricated Mexican hemp amounted to more than 80 percent of the binder twine used for harvesting grain in the United States. See United States v. Sisal Sales Corp., 274 U.S. 268 , 47 S.Ct. 592 , 71 L.Ed. 1042 (1927). Neither could we say that restricting competition for the purchase of cattle was insufficient to support an intention to monopolize commerce in fresh meat. See Swift Co. v. United States, 196 U.S. 375 , 25 S.Ct. 276 , 49 L.Ed. 518 (1905).

“Courts properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry ‘their ordinary, contemporary, common meaning.’ ” Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388 , 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993) (quoting Perrin v. United States, 444 U.S. 37, 42 , 100 S.Ct. 311 , 62 L.Ed.2d 199 (1979)). “Direct” has many meanings, in fact, only one of which is drawing direct lines on paper or geographically “from point to point without deviation” — the definition used by the district court and accepted by the Majority. The same dictionary source contains seven main meanings in the adjective form, encompassing 31 more specific subsidiary meanings. Webster’s Third New International Dictionary 640 (1981). All of those meanings are contemporary with the FTAIA, enacted in 1982, and many are both ordinary and common.

It would be arbitrary simply to pick one definition and declare it the “plain meaning” in the abstract. Determining the meaning of “direct” requires the consideration of definitions as informed by the FTAIA’s context and history. In this light, I believe that the most pertinent and sensible definition of “direct” for current purposes is: “3a. characterized by or giving evidence of a close especially logical, causal, or consequential relationship.” Id.

And, if we go to the granddaddy of all English dictionaries, The Oxford Dictionary of the English Language, the straight line definition is described as an adjective arising in LME (Late Middle English, 1350-1460). But the definition which I perceive to be most relevant here is “c. LOGIC. Proceeding immediately from consequent to antecedent, from cause to effect. Etc. ‘E19’” (1800-1829). This comports with the dictionary definition urged by the United States before us, in its neat comparison with the law of torts’ familiar phrase “proximate cause.”

Just as well, this is how the Supreme Court interpreted the term “direct” in the Foreign Sovereign Immunities Act (FSIA), as the majority concedes: “an effect is ‘direct’ ‘if it follows as an immediate consequence of the defendant’s activity.” Maj. Op. at 680 (emphasis added) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 , 112 S.Ct. 2160 , 119 L.Ed.2d 394 (1992) (holding that Argentina’s bond payment rescheduling had a “direct effect” in the United States, where Argentina was to perform its ultimate contractual obligations, even though the bond holders were foreign corporations)). 5

*693 A definition of “direct” that focuses on consequential relationships draws support from another area of antitrust law — private plaintiffs’ antitrust standing. In Blue Shield, of Virginia v. McCready, 457 U.S. 465 , 102 S.Ct. 2540 , 73 L.Ed.2d 149 (1982), the Court faced the issue of which persons sustained injuries too remote from an antitrust violation to give them standing to sue for damages under Section 4 of the Clayton Act. In answering this question, the Court observed that, historically, some antitrust cases formulated a test that equated “remoteness” with “directness” and suggested that both terms are analogous to the common law concept of “proximate cause.” Id. at 478 nn. 12-13, 102 S.Ct. 2540 .

To be sure, proximate cause itself is not easily defined. Id. at 478 n. 13, 102 S.Ct. 2540 . But it is still useful and important here for two reasons. First, it rightly focuses the inquiry about the meaning of “direct” into a relationship of logical causation rather than of something else such as time or geography. Second, it is a reminder that public policy undergirds concepts such as “proximate cause” and “direct effects.” The “policy unequivocally laid down by the [Sherman] Act is eompe-tition[,]” N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4-5 , 78 S.Ct. 514 , 2 L.Ed.2d 545 (1958), and the FTAIA, which is part of the Sherman Act, should therefore be interpreted in light of its fundamental purpose to protect United States consumers from the consequences of anticompetitive conduct.

Indeed, even the master wordsmith Benjamin N. Cardozo had his fling with attempting to define “direct” in deciding what was required in the context of Congress’ Commerce Clause power. He warned of confining a constitutional principle — namely the power of one sovereign to regulate the commerce of another — to a strict construction of a pair of opposing adjectives, for:

Carter v. Carter Coal Co., 298 U.S. 238, 327-328 , 56 S.Ct. 855 , 80 L.Ed. 1160 (1936) (Cardozo, J., dissenting) (citations omitted). After reviewing relevant Commerce Clause cases Cardozo concluded:

Id. at 328 , 56 S.Ct. 855 .

When directness is seen as a synonym for proximate cause, it is relevant that there are two types of causation: causation in fact, otherwise known as “but for” causation; and legal causation, the public policy imperative of cutting off liability *694 when a causal chain of events becomes excessively complex or attenuated. See, e.g., Prosser and Keeton on Torts § 42, at 272-73 (5th ed.1984). It is evident here that the United States sufficiently alleged that the Restrictive Clause had a “direct,” or proximate cause, effect on United States commerce in both senses.

First, the Complaint squarely alleged causation in fact: but for the restraint, United States consumers would have the important potential of better winter tomatoes grown from Hazera seeds. The Restrictive Clause, and indeed the entire LSL-Hazera relationship, was aimed at United States consumers. The United States tomato market drives the long shelf-life seed business. LSL sells its tomato seeds to farmers in Mexico and those farmers raise the seeds into tomatoes for the purpose of supplying grocery stores in the United States. Consumers in the United States are the persons injured by the Restrictive Clause, as they are the ones deprived of the superior tomatoes that competition from Hazera could bring.

Second, the causal link between seeds and tomatoes is very close and intimate. If seeds are allowed to grow (and otherwise they would be worthless), they quickly and inevitably become tomatoes. Because the principal use of tomato seeds is to grow tomatoes, tomatoes are more properly described as a different stage of the same product rather than as a related but downstream product. The seed, when planted, becomes the plant and the fruit that is yielded. Accordingly, LSL’s contention, adopted by the district court, that the seed is only an input into the finished tomato, does not preclude a “direct” effect on United States consumers.

Moreover, the causal connection between the Restrictive Clause and its effect on United States consumers is extremely close and intimate. The United States alleged a restraint on the very tomato seeds that grow into tomatoes in Mexico expressly for shipment to the United States. The consequences to the commerce of tomatoes in the United States are immediate, as there are no diversions or other intermediate stops for either the seeds or the resulting tomatoes. Short of a restraint on import commerce (to which the FTAIA does not apply), it is difficult to imagine foreign conduct that would have a more direct effect on United States commerce.

Most obviously, in Hartford Fire the Supreme Court treated the plaintiffs’ allegations as satisfying both the common law and the FTAIA’s tests for subject matter jurisdiction as to a conspiracy involving the market for reinsurance, particularly in London, but ultimately targeting the United States domestic market for primary insurance. 509 U.S. at 795-796 , 113 S.Ct. 2891 . The two products, the London-based reinsurance and the United States primary insurance, were closely related— in a proximate cause sense — because primary insurers depend on reinsurance for their own protection and “the London reinsurance market [is] an important provider of reinsurance for North American risks.” Id. at 775 , 113 S.Ct. 2891 .

The district court’s distinction between seeds and tomatoes, endorsed by the majority, is fundamentally inconsistent with Hartford Fire. If a restraint on reinsurance in the United Kingdom has a sufficiently “direct” effect on primary insurance in the United States under the FTAIA, it is impossible to see how a restraint on tomato seeds in Mexico does not have an equally direct effect on the resulting tomatoes in the United States — particularly when the district court’s order concedes that seeds and tomatoes are related and it is undisputed that Mexico is a signif *695 icant provider of winter tomatoes for the United States. 6

The United States alleged here that a contractual bar against Hazera selling seeds in Mexico adversely affected the domestic commerce of tomatoes, the inevitable outgrowth of the seeds, in the United States. Hartford Fire shows that the FTAIA is satisfied by these facts, and the district court’s treatment of the distinction between seeds and tomatoes as dispositive was therefore error. Fundamentally, the district court confused conduct with effect under the FTAIA by focusing on what the Restrictive Clause bars — Hazera selling seeds in Mexico — and ignoring the effect of that conduct, which is to deprive United States consumers of winter tomatoes from Hazera seeds. But “it is the effect and not the location of the conduct that determines whether the antitrust laws apply,” even under the FTAIA. Kruman v. Christie’s Intern. PLC, 284 F.3d 384 , 395 (2d Cir.2002).

In as much as the Congress did not define the terna “direct” by statute, this court should give the term its ordinary meaning within the context of Congress’ Commerce Clause power. In the words of Cardozo, the “causal relation” between the restraints on the development and production of tomato seeds in Mexico and the marketing, price and consumption of the resulting tomatoes in the United States “is so close and intimate and obvious as to permit it to be called direct without subjecting the word to an unfair or excessive strain.” Carter, 298 U.S. at 328 , 56 S.Ct. 855 .

Accordingly, I am convinced that there is no persuasive reason why a restraint on selling seeds in Mexico cannot have a “direct” effect on United States domestic commerce in tomatoes. 7

*696 Although the district court determined there was no subject matter jurisdiction, it went further in its analysis and decided that the United States’ Complaint failed to state a claim for which relief can be granted. Rule 12(b)6, Federal Rules of Civil Procedure. In so doing the court participated in an exercise of determining the relevant market definition for antitrust law, and accordingly stepped beyond its bounds,”[f]or a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-102 , 118 S.Ct. 1003 , 140 L.Ed.2d 210 (1998).

Moreover, the court erred in its treatment of the two components of defining a market in antitrust law: first, identifying the relevant product for the service market, and, second, identifying the relevant geographic area. It is to this issue that I will now turn. The majority held that there was no subject matter jurisdiction and, following the teachings of Steel Company, it properly declined to address the Rule 12(b)(6) issue: “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” 523 U.S. at 94 , 118 S.Ct. 1003 (quoting Ex Parte McCardle, 7 Wall. 506, 514 , 19 L.Ed. 264 (1868)). Because I conclude that there is subject matter jurisdiction, and the district court elected to decide the merits, so must I.

TV.

First, it is of import to provide a brief overview of market power, an underlying principle of antitrust law. Section 1 of the Sherman Act reads in part:

15 U.S.C. § 1 (1994).

Antitrust is concerned with the power of market participants to distort the competitive process. This distortion can misallo-cate resources, transfer wealth from consumers and other protected groups or, as in this case, by means of the non-compete agreement, stifle new entry or innovation and commercialization.

The power relevant to antitrust is market power, or as some economists put it “monopoly power.” 8 This power is, at its core, linked to elasticity of demand. Although a participant can exercise market power either as a seller or as a buyer, it is usually defined from the point of view of the seller: Market power is the seller’s ability to raise and sustain a price increase without losing so many sales that it must rescind the increase. William M. Landes & Richard A. Posner, “Market Power in *697 Antitrust Cases,” 94 Harv. L.Rev. 937, 939 (1981). 9

Elasticity of demand is a concept used to signify the relationship between changes in price and responsive changes in demand. In monopolization cases, the Court has said that the existence of market power can be determined by examining elasticities. United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 400 , 76 S.Ct. 994 , 100 L.Ed. 1264 (1956) ("[t]he responsiveness of the sales of one product to price changes of the other”).

Y.

Under the rule of reason, or a market analysis of the circumstances presented in this case, the United States satisfied pleading requirements to withstand a motion to dismiss for failure to state an antitrust claim.

“Ordinarily, whether particular concerted activity violates § 1 of the Sherman Act is determined through case-by-case application of the so-called rule of reason — that is, ‘the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.’” Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 , 108 S.Ct. 1515 , 99 L.Ed.2d 808 (1988) (quoting Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 , 97 S.Ct. 2549 , 53 L.Ed.2d 568 (1977)). “Certain categories of agreements, however, have been held to be per se illegal, dispensing with the need for case-by-case evaluation.” Id. “Such agreements are those that always or almost always tend to restrict competition and decrease output.” United States v. Brown, 936 F.2d 1042, 1045 (9th Cir.1991) (internal quotations and citations omitted). In general, “[a] market allocation agreement between competitors at the same market level is a classic per se antitrust violation.” Id.

Given the binding precedent of this court, however, the United States may not rely on a per se theory of a Sherman Act violation in this case. Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839 , 844-845 (9th Cir.1996) (“application of the per se rule is not appropriate where the conduct in question occurred in another country”). 10 Instead, we must examine whether there are *698 intended and substantial effects in the United States-an inquiry that must be conducted through a market analysis and the rule of reason. 11

A.

“We review de novo the district court’s order of dismissal for failure to state a claim.” Knevelbaard Dairies v. Kraft Foods, Inc., 282 F.3d 979, 984 (9th Cir.2000). “A motion to dismiss for failure to state a claim may not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)). Both the district court and this Court are required to “presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party.” Id. (citation omitted).

Here the district court ignored the Complaint’s unanswered allegation that the Restrictive Clause is a horizontal non-compete agreement that amounts to a “naked restraint of trade.” This was reversible error.

The district court demanded a level of detail at the pleading stage that the Federal Rules do not require in antitrust cases involving conduct subject to the rule of reason. “The complaint need not set out the facts in detail; what is required is a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Id. at 984 (quoting Rule 8(a), Federal Rules of Civil Procedure). “[Njotice pleading is all that is required for a valid antitrust complaint[,]” and thus “the complaint need only ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’” Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir.1983) (quoting Conley, 355 U.S. at 47 , 78 S.Ct. 99 ), accord Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir.1980) (“There is no special rule requiring more factual specificity in antitrust pleadings.”).

Moreover, in recent decisions the Supreme Court has been extremely emphatic on this issue. In Swierkiewicz v. Sorema N.A., 534 U.S. 506 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002), the Court made clear that “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions. Rule 9(b), for example, provides for greater particularity in all averments of fraud or mistake.” Id. at 513 , 122 S.Ct. 992 (emphasis added).

In so proclaiming, the Court reaffirmed the teachings of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 , 113 S.Ct. 1160 , 122 L.Ed.2d 517 (1993):

Id. at 168 , 113 S.Ct. 1160 .

What the United States averred in its Complaint was all that is necessary under the teachings of Swierkiewicz and Leatherman . “Such a statement must simply ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Swierkiewicz, 534 U.S. at 512 , 122 S.Ct. 992 (quoting Conley, 355 U.S. at 47 , 78 S.Ct. 99 ). The United States alleged that the Restrictive Clause, which “bars Hazera from ever competing to develop tomato seeds specifically adapted for North American climates,” violates the Sherman Act because it was so “over-broad as to scope and unlimited as to time as to constitute a naked restraint of trade.... ” The Complaint specified, in a short and plain statement, that “[t]he relevant market consists of seeds designed to grow fresh-market tomatoes in North America during the winter months.” 12

These averments gave the defendants notice that the government’s Sherman Act claim would focus on the Restrictive Clause’s effect on competition with respect to (1) seeds designed to grow fresh-market tomatoes (thus excluding tomatoes destined for processing), (2) tomatoes grown in North America (thus including both the United States and Mexico), and (3) tomatoes that are grown in the winter months. The United States’ Complaint was more than sufficient to put the defendants on fair notice of the claim and relevant market and enable them to frame responsive pleadings. See, e.g., Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998) (alleged “market for English-language radio broadcast advertising in the Eastern Caribbean” was sufficient); Quality Foods, 711 F.2d at 996 (“United States market for frozen vegetables” was sufficient). The district court erred in finding fault with the product and geographical dimensions of the relevant market as set forth in the government’s complaint.

B.

The court based its finding of fault with the product component of the relevant market on a premise of overbreadth: “by including seeds designed to grow in greenhouses, cherry tomato seeds, open-field seeds and seeds with long-shelf-life qualities,” the Complaint’s market included “different types of seeds [that] are not interchangeable.”

By asserting that these seeds are not interchangeable, an assertion not made by LSL or Seminis, the court in effect participated in its own fact finding. The nature of Rule 12(b)(6) does not allow courts to reach “matters outside the pleading” without following the summary judgment procedures of Rule 56. San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir.1998). (“[i]f matters outside the pleadings are considered, the motion to dismiss is to be treated as one for sum *700 mary judgment”). 13 The district court here did not invoke Rule 56 procedures, and was thus precluded from relying on matters outside the four corners of the United States’ Complaint. Moreover, the court may not make fact findings of a controverted matter when ruling on a Rule 12(b)(6) motion. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987).

Even if the court’s unsupported supposition of overbreadth as to the product market definition was correct, the competitive analysis of the case would not change. 14 The Restrictive Clause, as interpreted by LSL, excludes Hazera from developing, marketing, or selling any kind of tomato seed that has any long shelf-life qualities, whether referred to as greenhouse, open-field, long shelf-life, extended shelf-life, or something else. The analysis would thus be the same in the smaller markets that the district court suggested as preferable. Aggregating these various tomato seed products was a reasonable convenience, and it certainly does not foreclose the United States’ case.

But the court’s error did not stop there. It committed reversible error also in finding fault with the geographical metes and bounds of the relevant market.

c.

As to the geographic scope of the relevant market, the crux of the district court’s objection to the Complaint was also premised on overbreadth, as it reasoned: “open field winter tomatoes can only potentially be grown in Mexico and some Southern U.S. States” rather than throughout North America. The district court’s approach misapprehends antitrust law dealing with the geographic market definition.

If Hazera was excluded with respect to all of North America, it necessarily was excluded with respect to Mexico and the southern U.S. States. And if all the relevant tomatoes were grown in those areas, then a market consisting of those areas would be equivalent, for purposes of this case, to a market encompassing all of North America, because it would include precisely the same tomatoes.

In any event, neither the district court nor the Appellees have cited any case that dismissed a complaint because of an allegedly overbroad market definition. The cases cited were dismissals in which the market was defined too narrowly. My own research has not unearthed any authority supporting the district court’s decision in this respect. 15

*701 In a footnote, the court went further, reasoning that because tomato seeds are designed for microclimates, “[i]t seems to the Court that separate relevant markets exist for each growing region that requires a distinct seed variety.” But Hazera was excluded from each of the court’s suggested microclimate markets, and its exclusion from each eliminated a potent force for enhanced competition. Because the likely anticompetitive effect of the Restrictive Clause was basically the same for all the relevant microclimate markets, treating them as a single aggregate market cannot be a valid basis for dismissing the United States’ Complaint.

In addition, the district court erred in holding that every microclimate for different tomato seeds is a separate market. This approach assumes, without logical underpinning or case law support, that any substitution had to occur at the level of the farmer when selecting seeds. The Complaint placed seeds for different microcli-mates in the same market because the tomatoes grown in the different microcli-mates compete at the level of grocery store shelves. It is the grocery store-level competition of tomatoes, not the farmers’ selection of seeds with which to grow them, that goes to the heart of the United States’ Complaint and constitutes the geographic contours of the market.

For all the foregoing reasons I would reverse the judgment of the district court that determined that there was no subject matter jurisdiction under Rule 12(b)(1) and that the Complaint failed to state a claim for which relief could be granted under Rule 12(b)(6).

With respect, I dissent.

. The district court also entered judgment against the United States for failure to state a claim for which relief could be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. Because the majority affirms the dismissal under Rule 12(b)(1) it does not meet this issue. In light of the view I take, it will be necessary for me to discuss this question, infra.

. See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764 . 789 n. 23. 113 S.Ct. 2891 . 125 L.Ed.2d 612 ("Also unclear is whether the Act's direct, substantial, and reasonably foreseeable effect’ standard amends existing law or merely codifies it.... We need not address these questions here.”) (citation omitted); see also Dee-K Enter., Inc. v. Heveafil Sdn. Bhd, 299 F.3d 281 , 287 (4th Cir.2002); Kruman v. Christie’s Int’l P.L.C., 284 F.3d 384 , 399 n. 5 (2d Cir.2002); Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 428 (5th Cir.2001).

. The opposite situation is presented here. The contested issue is subject matter jurisdiction, not comity. ''[T]he general understanding [is] that the Sherman Act covers foreign conduct producing a substantial intended effect in the United States, and that concerns of comity come into play, if at all, only after a court has determined that the acts complained of are subject to Sherman Act jurisdiction.” Hartford Fire, 509 U.S. at 797 n. 24, 113 S.Ct. 2891 . Thus, the list of factors relating to moderating enforcement powers of the United States in the interest of comity set forth in Timberlane Lumber Co. v. Bank of America, N.T. and S.A., 549 F.2d 597, 614 (9th Cir.1976), do not necessarily speak to the issue before us. Nor do my personal observations set forth in Ruggero J. Aldisert, “Federal Courts and Extraterritorial Antitrust Law: Enlightened Self Interest or Yankee Imperialism?,” 5 J.L. & Com. 415 (1985).

. See cases cited in House Report, supra, at 2490.

. The majority points out that the Court in Weltover "reject[ed] the suggestion that ['direct'] contains any unexpressed requirement of 'substantiality' or 'foreseeability.' ” 504 U.S. at 618 , 112 S.Ct. 2160 . This simply indicates, however, that "direct” requires something less than substantial and foreseeable. Id. Indeed, a "direct” effect, or imme *693 diate consequence, on domestic commerce is the baseline — the sine qua non — of extraterritorial jurisdiction. Although the FSIA requires this baseline, the FTAIA requires that the immediate consequence be substantial and foreseeable. Here, the government sufficiently averred that the adverse effect on the United States’ domestic commerce of tomatoes has been an immediate consequence of the Restrictive Clause governing tomato seeds, and given Defendants’ “market power,” this “direct effect” has been, as well, "reasonably foreseeable” and “substantial.” See discussion infra.

. The majority emphasizes that Hazera has not yet developed its own long term shelf-life tomato seeds and suggests that the Restrictive Clause cannot have a direct effect on United States commerce because the prospect of Hazera developing such a seed without infringing on LSL's patent is speculative. (See Maj. Op. at 681 n. 7). All of this flies in the face of the government's declarations in its Complaint that: (1) Hazera is one of the world's leading tomato seed producing companies, (2) Hazera sells more seeds than any other company in many important tomato producing countries, including Spain, Italy, Israel and Turkey, (3) For the European and Mediterranean regions, Hazera has bred long shelf-life tomatoes by traditional plant-breeding processes that do not incorporate the RIN gene (and accordingly do not implicate LSL’s patent rights), (4) Hazera is one of the few firms with experience and know-how to develop seeds that will allow farmers from the United States and Mexico to grow better fresh market tomatoes for United States consumers during winter months, (E.R. at 11-12, ¶¶ 37, 39), and but for the Restrictive Clause, Haz-era would be a significant competitor to Ap-pellees in North America. Indeed, LSL would have had little reason to impose the Restrictive Clause on Hazera if it believed that Hazera’s prospect in developing its own long term shelf-life tomato seed was "speculative at best,” as the majority suggests. Haz-era cannot be faulted for not producing seeds in Mexico or the United States, as it has done elsewhere, because the Restrictive Clause prohibits it from doing so.

. The majority argues that an agreement with farmers in Mexico to set a floor on prices of tomatoes shipped from Mexico to the United States supports its position. Suspension of Antidumping Investigation: Fresh Tomatoes From Mexico, 67 Fed.Reg. 77044-02 (Dec. 16, 2002). The agreement covers all "fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin....” Id. at 77046. The agreement fixes minimum prices that tomato growers in Mexico must charge for their product. Id. at 77045-77050. The majority argues that this agreement, and the concerns that gave rise to it, belie the United States' argument that LSL could raise the prices ultimately paid by American tomato consumers. I disagree, and endorse completely the United States' reply to this argument:

. Frederic M. Sherer and David Ross, Industrial Maricet Structure and Economic Performance 17 (3d ed.1990).

. Judge Posner has restated this definition in various opinions. In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 603 (7th Cir.1997) (market power or monopoly power is "the power to raise price above cost without losing so many sales as to make the price rise unsustainable”) cert. denied, 522 U.S. 1153 , 118 S.Ct. 1178 , 140 L.Ed.2d 186 (1998); Olympia Equip. Leasing Co. v. Western Union Tel. Co., 797 F.2d 370 , 373 (7th Cir.1986) (market power is “the power to raise prices without losing so much business that the price increase is unprofitable”), cert. denied, 480 U.S. 934 , 107 S.Ct. 1574 , 94 L.Ed.2d 765 (1987); Valley Liquors, Inc. v. Renfield Importers, Ltd., 678 F.2d 742, 745 (7th Cir.1982) (market power is the "power to raise prices significantly above the competitive level without losing all of one's business”).

. This is not to say that I personally agree with this holding, but it nevertheless binds this panel in this judicial circuit. Like the United States, I am concerned that it runs counter to teachings of the Supreme Court that long ago held that international conduct such as price fixing and territorial allocations among horizontal competitors is per se unreasonable and hence per se unlawful under Section 1 of the Sherman Act. Timken, 341 U.S. at 599 , 71 S.Ct. 971 , aff'g Timken, 83 F.Supp. 284, 310 (N.D.Ohio.1949) ("In view of settled law and the facts, defendants’ contention that the restraints were reasonable must be rejected as untenable. The restraints on commerce, here proved by abundant evidence, have been denounced as unreasonable per se.”); see also Nippon, 109 F.3d at 7 ("[t]he instant case falls within [the per se illegal] rubric”) and Areeda & Hovenkamp, supra, ¶ 273, at 379 (1997).

. The district court treated the domestic affairs of LSL as the backdrop of facts upon which to assess the 12(b)(6) motion and used the foreign affairs as the backdrop for the 12(b)(1) motion. I agree with the majority that this analysis improperly divided a course of conduct that is interrelated and comprised of an impetus in a foreign location and an alleged direct effects in a domestic one. The entire course of conduct must be analyzed to determine its effects and this can only be done with the rule of reason. A division of activities into domestic and foreign categories was improper.

. Defendants do not deny that they have market power in the market for "seeds designed to grow fresh-market tomatoes in North America during the winter months,” or in any part thereof. In particular, they do not deny the Complaint's allegation that they control a 70 + % share of the relevant market, which must be taken as correct for Rule 12(b)(6) purposes. Rather, they appear to deny market power in a market of their own definition, not alleged by the United States — "the sale of long-shelf life tomato seeds for open-field cultivation in winter in the United States” — a market in which they insist there is no commerce. (LSL Br. at 15-17).

. When a district court rules on a Rule 12(b)(1) motion, unlike a 12(b)(6) motion, it may consider affidavits or other extra-pleading evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989).

. Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir.2001), on which the district court relied, differs from this case with respect to the sufficiency of the plaintiff's market, and anticompetitive effects allegations. In that case a former collegiate soccer player challenged an intercollegiate athletic association rule that discouraged her from an intraconference transfer to a single athletic program, but she apparently did not even attempt to allege geographic or product markets on the basis of any economic facts. Instead, she based her allegations simply on her own subjective personal preferences: she alleged that “the relevant [geographic] market is Los Angeles because she wanted to be close to her family,” id. at 1063 (internal quotations and brackets omitted), and that the relevant product market was UCLA because of her "strictly personal preference” that she wanted to play for UCLA's soccer team. Id. These market allegations were obviously defective, and Tanaka "failed to allege that the transfer rule has had significant anticompetitive effects within a relevant market, however defined.” Id. at 1064 .

.Rather, this case resembles one Justice Holmes described concerning the product and geographic scope of a domestic meat *701 packing monopoly in 1905: "The scheme alleged is so vast that it presents a new problem in pleading.... Its size makes the violation of the law more conspicuous, and yet the same thing makes it impossible to fasten the principal fact to a certain time and place.” Swift & Co. v. United States, 196 U.S. 375, 395 , 25 S.Ct. 276 , 49 L.Ed. 518 (1905). Like Justice Holmes, I conclude here that

Id. at 396-397 , 25 S.Ct. 276 .