
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 97-1783                    SPRINGFIELD TERMINAL RAILWAY COMPANY, ET AL.,                               Plaintiffs, Appellants,                                          v.                    CANADIAN PACIFIC LIMITED, DBA, CP RAIL SYSTEM,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Robert  S. Frank,  Jr., with whom  Robert M.  Buchanan, Jr.,               ______________________             ________________________          Eric  J. Marandett,  Kenneth E.  Steinfield, and Joshua  A. Engel          __________________   ______________________      ________________          were on brief for appellants.               Terence M. Hynes  with whom Michael Fehner was  on brief for               ________________            ______________          appellee.                                 ____________________                                  December 22, 1997                                 ___________________               COFFIN,  Senior Circuit  Judge.   This is  an appeal  from a                        _____________________          summary  judgment for  defendant  in  a  civil  antitrust  action          brought under  Section 2  of  the Sherman  Act, 15  U.S.C.    15,          seeking damages  for an "attempt to monopolize .  . . any part of          the trade or commerce among the several States."  The appeal also          challenges  the   district  court's  refusal   to  exercise   its          supplemental   jurisdiction  over  one  count  of  the  complaint          charging violation of the Massachusetts Antitrust Act, Mass. Gen.          L. ch. 93,   5,  and another count charging tortious interference          with prospective business advantage.                                     The Parties                                     ___________               The  plaintiffs  are  three  railroad  companies   owned  by          Guilford Transportation Industries,  Inc., with principal offices          in  New Hampshire.   They  are the  Boston and  Maine Corporation          (B&M),  the Maine Central  Railroad Company, and  the Springfield          Terminal  Railway   Company,  which  collectively   comprise  the          Guilford  Rail System.   We shall refer  to plaintiffs-appellants          simply as Guilford.   The defendant-appellee is  Canadian Pacific          Ltd., with principal offices in Montreal, Quebec.  We shall refer          to it as CP.  Guilford's lines run from New England to  New York;          CP's  relevant  line  runs  through  central  Maine  between  the          Canadian provinces of New Brunswick and Quebec.                                      The Market                                      __________               The market  subject to the alleged  attempted monopolization          is,  for  purposes of  this  case, assumed  to  be  that of  rail          transportation to and  from northern New England.   The principal                                         -2-          customers are  thirty plants  producing building materials,  wood          pulp, and paper located in Maine, New Hampshire, and Vermont, and          their  suppliers and  customers.   Incoming  traffic consists  of          clay,  chlorine, and other supplies; outgoing traffic consists of          paper,  pulp, and  building  materials.   Of  the thirty  plants,          twenty-three are on Guilford's lines; three are on a line of  the          Bangor and Aroostook Railroad in  Maine; one is on the short-line          Aroostook Valley Railroad in northern Maine; and three are on the          St. Lawrence  & Atlantic  Railroad in Vermont.   CP  and Guilford          compete  for plants  on the  Bangor and  Aroostook line;  neither          serves mills on the St. Lawrence & Atlantic Railroad.   There are          no plants on a CP line.                                      The Issue                                      _________               The basic theme  of the complaint, filed on  August 1, 1994,          is  that CP,  a corporation  with some  $10 billion  in revenues,          attempted to drive out of business or force the sale of Guilford,          which was in fragile  financial circumstances, thereby destroying          competition  in the  market above described.   In  submitting its          motion  for  summary judgment,  CP  assumed  the truth  of  facts          alleged in  the complaint.   Therefore, the relevant  market, the          intent  to monopolize, and the  existence of predatory conduct --          three  of the four requisites of  an attempt to monopolize -- are          not in issue.  What is to be decided is whether the complaint and          affidavits raise a  genuine issue of fact as to  the existence of          "a  dangerous probability of achieving monopoly power."  Spectrum                                                                   ________          Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).           ____________    _________                                         -3-                                  The Facts Alleged                                  _________________               We take the facts as alleged  in the complaint.  Although we          review a summary  judgment decision in  which the district  court          considered both the complaint and  an affidavit from each  party,          the  affidavits submitted  do  not  assert  any  facts  that  are          relevant to our decision.                 After  covering  the   material  we  already   have  briefly          described,  the complaint addresses  CP's underlying motive.   It          alleges:  (1) on May 15, 1990, CP agreed to purchase the Delaware          and  Hudson  Railway  Company (D&H);  (2)  before  this purchase,          Guilford linked  much of its  traffic to and from  points outside          New  England  through D&H  lines,  amounting  to  68  percent  of          Guilford's traffic in  1988, and dropping to 43  percent in 1989;          (3) in 1990, at some unidentified time, the figure dropped  to 27          percent; (4) CP's  purchase of  D&H was  "predicated upon  D&H/CP          retaining the share  of interchange traffic D&H  had historically          had  with [Guilford];" (5) D&H/CP has sustained subsequent yearly          losses of some $8 million; and (6) therefore, since retaining the          Guilford interchange business  was essential to D&H's  health, CP          "entered into a series of transactions" to weaken Guilford, force          a lease, sale, or bankruptcy, "from  which CP and others would be          able to acquire its lines."               Four   activities  were   alleged  under   the  caption   of          "Defendant's Unlawful Conduct."  The  first was a 1989 request to          obtain trackage  rights over  Conrail lines  in Pennsylvania  and                                         -4-          Maryland  as a  prerequisite  to the  acquisition  of D&H  lines.          Conrail refused.               In early 1990,  an effort was made, in  connection with CP's          planned acquisition  of  D&H, to  increase the  level of  traffic          interchange  between Guilford  and  D&H  through  a  proposal  to          acquire  trackage  rights,  with  an  option  to  purchase,  over          Guilford's line between  Mechanicville, New York,  and Fitchburg,          Massachusetts.  Guilford rejected the proposal.               At  the same  time, in  April and May,  1990, CP  sought the          assistance  of  the  Federal  Railroad  Administration  (FRA)  in          obtaining  the  consent  of  Guilford  to  CP's  proposal.    FRA          allegedly  cooperated  by   threatening  to  default   Guilford's          subsidiary,  Boston and Maine, under a preference share agreement          with FRA, which  would trigger a  B&M obligation to pay  FRA some          $26 million.   FRA senior management  also allegedly stated  that          Guilford  would  regret  it  if  the  company  turned  down  CP's          proposal.     In   late   1990,  FRA   notified   B&M  that   its          "reconfiguration"  of part  of a line  (i.e., removal  of tracks)          violated  the  preference share  agreement.    Had FRA  called  a          default,  CP knew  that  Guilford would  face  bankruptcy and  be          subject to acquisition by CP on  favorable terms.  But no default          is alleged to have been declared.               These  three instances of alleged efforts, while evidence of          intent, produced no results adverse to Guilford.  Only the fourth          alleged incident describes an effort ripening into conduct.  Both          CP and Guilford submitted bids  to a large paper-making facility,                                         -5-          the Great  Northern plants,  for transport  of 4,744  carloads of          paper  to 165  locations between  January 1,  1991 and  April 30,          1993.    CP's bids  were  for  less  than its  estimated  average          variable cost; for example, the average variable cost for one bid          involving more than  a fourth of the total  traffic was estimated          at $1,000  per carload while  the expected revenue was  less than          $350.   In December  1990, CP  was awarded  a contract for  4,204          carloads.               The complaint  alleged that  this conduct  was "intended  to          divert revenues from the Guilford Rail System" so as to weaken it          and permit  CP "or others  collaborating with CP" to  acquire it.          The essential part of the complaint concluded with the allegation          that CP, once it had acquired Guilford, could recoup the costs of          such  predatory pricing through restoring the interchange traffic          and increasing rail rates.  The high barriers to new entry in the          market  and   the  weakened   condition  of   Guilford  allegedly          contributed to the likelihood that CP would accomplish this goal.                                  Proceedings Below                                  _________________               CP's  motion  for  summary  judgment  urged  three  grounds.          First,  accepting  the  truth  of  all  allegations,  CP  claimed          exemption  from antitrust liability  under 49 U.S.C.    11321(a),          which provides that ICC approval of a purchase of  one carrier by          another creates  an exemption "from  the antitrust laws  and from          all other law . . . as necessary to let that person carry out the          transaction,  hold,  maintain, and  operate  property  .  . .  ."          Second, CP claimed that there existed no dangerous probability of                                         -6-          monopoly in any event because it was not alleged that CP  had any          market power,  and it had  not been shown probable  that Guilford          would agree  to sell to CP or  that the ICC would  approve such a          purchase.  Third, CP argued that the state law claims, resting on          the  district   court's  supplemental  jurisdiction,   should  be          dismissed along with the federal claim.               The district  court, after  an unfortunate  two year  hiatus          during which  apparently no  progress was  made in  resolving the          case, rested its  summary judgment on the  following conclusions:          deeming  market share a "highly significant" though not exclusive          factor in assessing the probability of successful monopolization,          it  reasoned that  at most  CP  controlled little  more than  ten          percent of the market, which was not "sufficiently 'proximate' to          monopoly;" that nothing in the record indicated that, if Guilford          were forced to sell its rail lines, it would sell to CP; and that          the record  failed  to demonstrate  that  ICC approval  would  be          forthcoming.   Finding the federal antitrust claim unsupported by          sufficient factual  allegations to  create a  genuine issue,  the          court in  its discretion  declined to  exercise its  supplemental          jurisdiction over the state claims.                                      Discussion                                      __________               Standards.   The  familiar  standards  of  summary  judgment               _________          review  apply here.   Some are  in appellants' favor:   review is          plenary, Steinke v. SunGard Financial Systems,  121 F.3d 763, 768                   _______    _________________________          (1st Cir.  1997); a genuine issue of  fact that is truly material          will defeat the  motion, Celotex Corp. v. Catrett,  477 U.S. 317,                                   ____________     _______                                         -7-          325-27 (1986); and facts and reasonable inferences therefrom must          be taken favorably to the non-movant, Blanchard v.  Peerless Ins.                                                _________     _____________          Co., 958 F.2d 483, 490 (1st Cir. 1992).          ___               But other standards have come to  hold in check too ready  a          creation of a factual issue.  Unsupported assessments, conclusory          allegations,  and  speculative  suppositions   carry  no  weight.          Medina-Munoz v.  R.J. Reynolds  Tobacco Co., 896  F.2d 5,  8 (1st          ____________     __________________________          Cir. 1990).   We add to this litany that  in a case such as this,          where intent and subjective motive are not in question, but where          the issue involves the objective and rather technical data called          for by  the requirement of  a dangerous probability  of achieving          monopoly power, the  careful construction of a complaint takes on          enhanced importance.                 In addition  to standards  of review,  standards of  careful          practice caution that  the pleader anticipate a  summary judgment          motion and have in mind the availability of Fed. R. Civ. P. 56(f)          if further discovery seems necessary,  that timely steps to amend          be taken when  the need arises, and that  appropriate proffers of          evidence be made if the  record needs supplementing.  Moreover, a          motion  for summary judgment  thrusts into possible  question any          fatal  factual deficiency,  whether  or  not it  is  then at  the          forefront of controversy.  A non-movant must live with the double          standard that,  while a  loser at the  fact finding  stage cannot          raise  new issues  to  secure  reversal, "A  party  may defend  a          judgment  in its favor on any legitimate ground without appealing          from the judgment on that issue."  United States v. Massachusetts                                             _____________    _____________                                         -8-          Institute of  Technology, Nos. 97-1287,  97-1382, slip op.  at 14          ________________________          (1st Cir. Nov. 25, 1997) (citation omitted).               ICC Approval Immunity.   By far the major  emphasis below on               _____________________          the part of CP was placed on the argument that, since  the entire          objective  of CP's  scheme was,  according to the  complaint, the          acquisition of Guilford,  and since  such an  acquisition of  one          railroad  by another  must be  approved by  the ICC  (now  by the          Surface  Transportation   Board),  CP  would  fit  the  statutory          description of "[a] rail  carrier . . . participating in  . . . a          transaction  approved by  the  [ICC]" who  may  "own and  operate          property . . . acquired through the transaction . . . exempt from          the antitrust laws . . . ."  49 U.S.C.   11321(a).               Before  the district court,  CP conceded for  the purpose of          this argument that  it would acquire Guilford, but,  based on the          above reasoning, contended that it would be exempt from antitrust          liability.    On  appeal, Guilford  strenuously  argues  that any          exemption must be restricted to  a transaction that is "necessary          to  let  that rail  carrier .  .  . hold,  maintain,  and operate          property  . . .  acquired through  the transaction."   Id.   CP's                                                                 ___          predatory  pricing, it maintains, was prior  to and separate from          acquisition of Guilford  by CP.  There would be  no policy reason          to  exempt such preliminary  conduct; a company  that mercilessly          took all kinds of actions to  bring a victim to its knees  should          not  be  granted  absolution if  its  malevolent  campaign proved          successful.  Moreover,  antitrust exemptions  should be  narrowly          construed.                                          -9-               We are not impressed with the cases cited by CP.  Its simple          rationale is that if acquisition of Guilford (and  the consequent          monopoly position of CP in  the market) is approved and therefore          immunized by the ICC, an attempt  to achieve such a legal  status          cannot  be  unlawful.   But  although  government  approval  of a          consolidation or merger may exempt those who took part from legal          obstacles that would  hinder its consummation, as  in Brotherhood                                                                ___________          of Locomotive  Engineers v. Boston  & Maine Corp., 788  F.2d 794,          ________________________    _____________________          800-801  (1st  Cir. 1986),  CP  has  given  us no  authority  for          extending  immunity to remote  and egregious conduct  that brings          about a condition of subservient vulnerability and thus  sets the          stage  for  a  subsequent  consolidation,  merger,   or  purchase          agreement.               While  we  acknowledge  a  considerable  scope  of  immunity          created by ICC approval, we are  unwilling to take a position  of          first impression and  grant immunity as  a per  se matter to  all          events  that precede  the ICC  action.   We find  distasteful the          proposition that a railroad company  could indulge in any kind of          anticompetitive  chicanery and, if  successful, be immunized, or,          if  not successful,  defend against  an  unlawful attempt  charge          because there  would be  no dangerous  probability of monopoly.            Like the district court, we shall not pass on this issue.               Market  Power.   As  we have  observed,  the district  court               _____________          placed some reliance on its  estimate that CP controlled not much          more than  ten percent  of the market.   Guilford  maintains that          since  the complaint  alleged  that there  were  only two  market                                         -10-          participants, Guilford and CP, and  that CP intended to force the          sale of Guilford's  assets to CP, and since CP  had the financial          means  to accomplish  this, a  jury could  find that  a dangerous          probability  of  monopolization  existed.   Pre-predation  market          power under these circumstances, argues Guilford, is not the sole          indicator of success.               We are  well aware  of the impressive  case law  requiring a          plaintiff  in an attempted  monopolization case to  demonstrate a          substantial  pre-existing market share.  We affirmed the decision          in Benjamin v. Aroostook Med. Ctr.,  937 F. Supp. 957, 966-67 (D.             ________    ___________________          Me. 1996), aff'd, 113 F.3d 1 (1st Cir. 1997),  petition for cert.                     _____                               __________________          filed, 66 U.S.L.W.  3308 (U.S. Aug.  11, 1997), which  recognized          _____          that the requirement of market  power is commonly shown by market          share.    But most  of  the cases  cited  by CP  are pre-Spectrum                                                                   ________          Sports.    And  that  decision  does  not  impose  an  inflexible          ______          requirement  that pre-predation market share be demonstrated.  As          the district court recognized, Spectrum Sports, after recognizing                                         _______________          the higher standard  of proof required against a  single firm, as          contrasted with concerted activity, states that               demonstrating    the    dangerous     probability    of               monopolization in an attempt case also requires inquiry               into the relevant product and geographic market and the                                                               _______               defendant's economic power in that market.               _________________________________________          Spectrum Sports, 506 U.S. at 459 (emphasis added).           _______________               Areeda  and Hovenkamp, in  their antitrust treatise,  see P.                                                                     ___          Areeda & H. Hovenkamp, Antitrust Law   807, p. 355 (1996), engage                                 _____________          in a thoughtful  discussion of the  requirement of market  share,          tending to resist expansionary  doctrine, but acknowledging merit                                         -11-          in some  relaxation of  the requirement.   Their bottom  line is:          "The all-important consideration is that the alleged conduct must          be  reasonably  capable of  creating  a monopoly  in  the defined          market."  Id.  They add, "As always, however, market share  is an                    ___          imperfect  surrogate  for market  power."   Id.    They  make the                                                      ___          interesting comment that the threshold power requirement might be          lowered  if   only  injunctive  "cease-and-desist"   relief  were          requested, rather than  triple damages and attorney's  fees.  Id.                                                                        __          at 357.                Guilford relies on  United States v. American  Airlines, 743                                   _____________    __________________          F.2d 1114, 1118-1119 (5th Cir. 1984), as precedent  for assessing          the  probability of monopolization by  adding the market share of          Guilford, the putative  victim, to that of CP.   The company also          properly cites Areeda & Hovenkamp's Antitrust Law   807h, p. 362,                                              _____________          as   recognizing  this   addition   as   appropriate   "in   some          circumstances."  But it is quite clear that in American Airlines,                                                         _________________          the offer of  American to its fierce competitor,  Braniff, to end          their  competition and jack  prices twenty percent  was "uniquely          unequivocal and its potential .  . . uniquely consequential," 743          F.2d  at  1119.   In  other  words,  the  conduct was  "the  most          proximate to the  commission of the  completed offense that  [it]          was capable  of committing."   Id. at 1118-1119.   In the instant                                         __          case, predatory  pricing would have to persist so far as to bring          Guilford to  the point  of selling  or bankruptcy,  a sale  to CP          would have  to take place, and approval  would have to be granted          by the ICC before monopolization became a fact.                                           -12-               We  recognize  that  aggregation  of  the  market  power  of          predator and predatee  may in some cases be warranted,  and we do          not insist  on proof  of  thirty or  fifty percent  or some  such          percentage of market  share as a per se  threshold requirement in          all attempted  monopolization cases.   But we give weight  to the          traditional  requirement, and  require exceptional  circumstances          before straying from it.  An all-powerful outsider with unlimited          financing   and    a   record   of    persistent,   unambiguously          anticompetitive conduct  that has a demonstrably  serious adverse          effect on its competitor might well pass the test.               As we discuss below, however, this is not such a case.               Other   Factors    Relevant   to    Dangerous   Probability.               ___________________________________________________________          Notwithstanding the  lack of asserted  facts demonstrating market          share,   Guilford  would  have  us  conclude  that  CP's  conduct          reasonably  could  be  thought capable  of  creating  a dangerous          probability  of monopolization in  the northern New  England rail          transportation  market based  on the  fact that  CP admitted  the          truth of the allegations of the complaint for purposes of summary          judgment.    Guilford  asserts that  the  complaint  alleged that          Canadian Pacific would acquire Guilford's rail assets and that CP          conceded this point.               It is  clear to us,  however, that CP's attempt  to obtain a          stipulation that  monopolization necessarily  assumed acquisition          by CP was in the context of  CP's contention that ICC approval of          any  acquisition  conferred   antitrust  immunity.    Indeed,   a          concession  for all  purposes that  acquisition  of Guilford  was                                         -13-          probable would  also be a concession of the basic point at issue,          the existence of a dangerous probability of monopoly.               No more  persuasive is  Guilford's assertion  of prejudicial          error in  the court's refusal  to consider a proffer  of evidence          that CP would  purchase Guilford's assets.  The  "evidence" was a          statement by Guilford's  counsel at a motion hearing  that he had          obtained a  document showing  CP's belief that  it would  acquire          Guilford's assets when Guilford succumbed to bankruptcy, which it          thought was imminent.   Not only was there  no subsequent attempt          through affidavit or  otherwise to have the  document admitted to          the  record, but  even  more importantly,  the  substance of  the          representation  was only  that CP  did indeed  aspire  to acquire          Guilford's assets and believed in its feasibility, something that          has  not  been  in issue.    A  belief of  an  aspirant  does not          constitute  evidence of  the probability  of  realization of  the          aspiration.  We see  no merit in this assertion of  error, either          procedurally or substantively.               This brings us to  an analysis of the  conduct alleged.   To          begin, we  must dismiss the  several allegations of  conduct that          resulted in  no action --  the 1989 refusal  of Conrail to  grant          trackage  rights, the 1990 rejection  by Guilford of CP's request          for trackage rights  between Mechanicville and Fitchburg  with an          option to purchase, and the  1990 failure of the Federal Railroad          Administration to  follow through  on its  CP-induced threats  of          default.                                         -14-               We are  left with the single instance of CP's below cost bid          to Great  Northern and the  resulting contract in  December 1990.          Guilford would have us attach no relevance to the solitariness of          the  predatory  pricing  incident,  on  the  ground that  CP  has          conceded  the alleged  existence  of  such  conduct.    But  mere          existence  of  predatory price  cutting, and  the extent  of such          conduct  sufficient to justify a finding of dangerous probability          of monopolization, are two quite different issues.                 Guilford  also contends  that CP,  which opposed  Guilford's          "Motion to Allow  Discovery to Proceed" -- a  motion "designed to          obtain  information  that  would  permit  the  identification  of          particular instances where Canadian Pacific engaged in below cost          pricing" -- should  not now be permitted to  argue for affirmance          because of the  inadequacy of the  complaint.  But the  Motion to          Allow tells us  only that the documents withheld by CP as "highly          confidential"  "involve revenue and  cost data [which]  go to the          heart  of [Guilford's]  predatory pricing  claim."   There is  no          assertion that Guilford intended to broaden the complaint to  add          other incidents to the bids on the Great Northern business.                 We  are not  in a  position  to judge  whether Guilford  was          unfairly cut off from obtaining evidence necessary to withstand a          motion for summary judgment.  There exists a clear-cut  way for a          litigant  in  Guilford's  position to  avoid  this  difficulty of          exercising hindsight.   Rule 56(f) of the Federal  Rules of Civil          Procedure specifically calls upon a litigant who feels prejudiced          by too precipitate a demand for summary judgment to file a timely                                         -15-          affidavit  with  the   court  asserting  the  need   for  further          discovery.  As  we have held, failure to resort to such first aid          will  ordinarily bar belated aid.   See Rivera-Flores v. Bristol-                                              ___ _____________    ________          Myers Squibb Caribbean, 112 F.3d 9, 14 (1st Cir. 1997).            ______________________               We are not  moved by Guilford's explanation that  it did not          make a Rule 56(f) submission "because the Court had expressed its          complete disinterest in  evidence directed to that issue."   CP's          motion  for summary  judgment excluded  no issue;  its basis  was          "that there exists no genuine issue of material fact warranting a          trial."  At  the hearing on the motion, the  court indicated that          it understood  CP to be  making an "alternative argument"  to ICC          immunity.    A party  opposing  summary judgment  must  touch all          bases.  Even  if the focus of  counsel and the trial  court is on          one issue,  an appellate court  may affirm a judgment  on another          ground, if made "manifest by the record."  Frillz, Inc. v. Lader,                                                     ____________    _____          104 F.3d 515, 516 (1st Cir. 1997).               Even  less worthy  of consideration  is Guilford's  tortured          argument  that, despite  its having  made  no move  to amend  its          complaint, the  court should  have treated  the summary  judgment          motion as  a  motion  to dismiss  and  sua sponte  given  it  the          opportunity to do  so.  Although Guilford asserts  that it "could          plead   additional  facts   that   would   cure   any   perceived          insufficiency in the Complaint," such facts are not identified.               All that the  complaint asserts  is the  single incident  in          which CP, through predatory pricing, obtained a contract to carry          4,204  carloads annually of Great Northern's 4,744 carload total.                                         -16-          The contract was to expire on April 30, 1993.  We do not know who          obtained the contract to carry  the remaining 540 carloads or why          some other carrier  managed to withstand CP's  predatory pricing.          Although  Great  Northern's facilities  were  among  the largest,          there were 29  other plants  in the  market, only  three of  them          served by CP.  There is no information about the financial impact          of  this incident  on  Guilford.   And  there  is no  information          concerning CP's market share.               Perhaps even more  significantly, there is no  evidence that          CP engaged in  predatory pricing after December  1990, some three          years and  seven months  before Guilford's  complaint was  filed.          There  is no  information relating  to any  new request  for bids          following expiration of the Great Northern contract  on April 30,          1993.    We are  not  told whether  CP  sought  or retained  that          business.                 We  deem  highly  relevant   and  persuasive  the  following          observations by Areeda and Hovenkamp in their treatise:               [W]hen challenged exclusionary conduct  had ended three               years earlier without increasing the defendant's market               share or forcing the exit of any competitor, a court is               likely  to see  no  dangerous  probability of  success.               Although the conduct's potential at the time it occurs,               rather than its actual effect, determines its legality,               later effects  sometimes indicate  the  nature of  that               potential. . . .                    We   would  find   attempt  claims   presumptively               implausible if the challenged conduct has been in place               for at least two years and the remaining market remains               robustly  competitive  as evidenced  by  ongoing entry,               profitability  of   rivals,  and  stability   of  their               aggregate market share.                                         -17-          Federal Antitrust  Law    807f, pp.  360-61 (citing  Ashkanazy v.          ______________________                               _________          Rokeach & Sons, 757 F. Supp. 1527 (N.D. Ill. 1991)).          ______________               Although this rationale apparently was not considered by the          district  court,  it  nevertheless  was  "made  manifest  by  the          record,"  see  Frillz,  164  F.3d  at  516,  and  constitutes  an                    ___  ______          "independently sufficient  ground" for decision,  see Hidalgo  v.                                                            ___ _______          Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir.          ____________________________________          1997) (citation omitted).               Another factor  militating against  a reasonable  finding of          dangerous probability  of monopolization that the  district court          relied  upon was  the  uncertainty  of  obtaining  the  necessary          approval by the ICC.   The court concluded its reasoning  on this          point by saying that "there is no  way to judge how the ICC would          view  an  acquisition  of   the  Guilford  Rail  System  by   CP.          Disapproval is just as likely as approval."  We agree.               The relevant statute  governing ICC approval is 49  U.S.C.            11324(d), which requires approval of an acquisition unless "there          is likely to be substantial lessening of competition, creation of          a   monopoly,  or   restraint  of   trade   in  freight   surface          transportation . . . and . . . the anticompetitive effects of the          transaction outweigh the  public interest in  meeting significant          transportation needs."  CP cites various instances  where the ICC          has   disapproved  mergers   that  threatened   a  reduction   in          competition; Guilford  cites actions where "public  interest" has          been held to outweigh any reduction in competition.  We simply do                                         -18-          not know how  the ICC would view the  competing considerations on          the record of this case.               So viewing  the allegations  of the  complaint, we  conclude          that Guilford has failed to put forth sufficient facts to justify          a  finding of  a  dangerous probability  of  monopolization.   We          therefore have no occasion  to consider the sufficiency  of facts          alleged  to  support   the  likelihood  that  CP   would  acquire          Guilford's assets  or CP's  arguments concerning  the absence  of          barriers to entry into the market and elasticity of demand.               We  add that  we  see  no reason  to  question the  district          court's  action  in   declining  to  exercise  its   supplemental          jurisdiction over state law claims.               Affirmed.  Each party to bear its own costs.                               _________  _________________________________                                         -19-
