Rather, the Government rests its jurisdictional argument on the fact that the defendants' activities are within the flow of commerce due to the fact that some part of the product's essential ingredient (cement) has a point of origin from a place outside of the state of Colorado where all ultimate sales take place. See United States v. Richter Concrete Corp., 328 F. Supp. 1061 (S.D. Ohio 1971). In view of the preceding discussion, we hold that the defendants herein were engaged in commerce within the meaning of § 7 of the Clayton Act in view of the fact that an essential component of their product was in the flow of commerce.
The volume, amount, or quantity of interstate commerce involved is irrelevant under the "in commerce" test, but may be crucial under the "affecting commerce" test. See Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391 n. 6, 395 (4th Cir. 1974); Rasmussen v. American Dairy Ass'n, 472 F.2d 517, 526-28 (9th Cir.), cert. denied, 412 U.S. 950, 93 S.Ct. 3014, 37 L.Ed.2d 1003 (1973); Las Vegas Plumbers Merchant Ass'n v. United States, 210 F.2d 732, 739-40 n. 3 (9th Cir.), cert. denied, 348 U.S. 817, 75 S.Ct. 30, 99 L.Ed. 645 (1954); United States v. Richter Concrete Corp., 328 F. Supp. 1061, 1065-66 (S.D.Ohio 1971). As in other contexts, see, e. g., United States v. LeFaivre, 507 F.2d 1288 (4th Cir. 1974), the Congress utilized its recognized power over commerce to reach detrimental activity.
In order for the interstate commerce allegations of the Complaint to be jurisdictionally sound, "they must allege either 1) activities that are in the flow of interstate commerce, or 2) activities which though occurring purely on a local level substantially affect interstate commerce." Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48, 50 (3d Cir. 1973); Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341 (9th Cir. 1969); Evans v. S.S. Kresge Company, 394 F. Supp. 817 (W.D.Pa. 1975), aff'd, 544 F.2d 1184 (10th Cir. 1976), petition for cert. denied, ___ U.S. ___, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977) (No. 76-1033); United States v. Richter Concrete Corporation, 328 F. Supp. 1061 (S.D.Ohio 1971). The concept of free enterprise, however, spurred by the broad scope of interstate commerce, appeals for some limit to the intrusiveness of Sherman Antitrust Act regulation.
Given an in commerce context for the alleged per se violations, we would agree with plaintiff. See United States v. Richter Concrete Corp., 328 F. Supp. 1061 (S.D.Ohio 1971). But that showing must precede application of the per se doctrine.
Id. at 983. United States v. Richter Concrete Corp., 328 F. Supp. 1061 (S.D.Ohio 1971), also states that the grand jury in that case had the indictment before it for deliberation and vote, unlike the defective procedure in Gaither. Id. at 1067.
So ordered. Notwithstanding the foregoing, the court is of the opinion that the procedure advanced by Gaither v. United States ( 413 F.2d 1061) is commendable, and submission of the formal typewritten instrument for ratification by the Grand Jury would eliminate in the future any doubt that the instrument did not reflect the actions of the Grand Jury. It is also noted that the rule outlined in Gaither is not universally accepted by all Federal courts ( United States v. Jeffries, 45 F.R.D. 110; United States v. Richter Concrete Corp., 328 F. Supp. 1061; United States v. Niedelman, 356 F. Supp. 979).