III. CONTROLLING ISSUES OF LAW

A. PLAINTIFF HAS STANDING TO BRING THIS ACTION

As a consumer and purchaser of both newspapers, plaintiff has standing under the antitrust laws to challenge a merger that will result in a reduction of output (only one daily newspaper); a lessening of consumer choice (only one news and editorial voice in San Francisco); the elimination of price and rate competition between The Chronicle and The Examiner; the likely enhancement of subscription and newstand prices and advertising rates; and the elimination of competition that would have occurred on the expiration of the JOA. Key Enterprises of Delaware, Inc. v. Venice Hosp., 919 F.2d 1550, 1559 (11^th Cir. 1990) (narrowing of consumer "choice is sufficient to show injury to consumers" under the antitrust laws); Nelson v. Monroe Regional Medical Ctr., 925 F.2d 1555, 1562-65, 1568 (7^th Cir. 1991) (consumers denied medical treatment as the result of a hospital merger have standing to challenge the merger under section 7 of the Clayton Act); see Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (consumers have standing to enforce the antitrust laws when violations cause them monetary injury); California v. American Stores Co., 495 U.S. 271 (1990) (action by state as parens patriae to redress harm to its citizens as consumers resulting from a merger); see also Blue Shield of Virginia v. McCready, 457 U.S. 465, 473-74 (1982) (injury to the "general economy" of a state "is no more than a reflection of injuries to the ‘business or property’ of consumers, for which they may recover themselves . . . .")

In addition, section 7 of the Clayton Act permits an injunction against a merger "the effect of which may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. § 18, emphasis added. "Congress used the words ‘may be substantially to lessen competition’ (emphasis supplied) to indicate that its concern was with probabilities, not certainties." United States v. Times Mirror Co., 274 F. Supp. 606, 613 (C.D. Cal. 1967), aff’d, 390 U.S. 712 (1968), quoting Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962).

Finally, under section 16 of the Clayton Act, 15 U.S.C. § 26, injunctive relief is available "upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury . . . [citation omitted]; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130 (1969). Equally applicable is the Supreme Court’s admonition that "the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws." Id. The availability of injunctive relief "should be ‘conditioned by the necessities’ of the public interest which Congress has sought to protect." 395 U.S. at 131. The Court’s words could not apply with more force than to this case, where plaintiff is acting as a private attorney general by default, in place of federal, state, and local authorities conspicuous by their absence.

As a consumer, plaintiff clearly satisfies all antitrust standing requirements.