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To apply it. it was applied by the majority opinion in the brown and williamson decision. it's the godfather of the major rules or major questions doctrine. justice breyer wrote about it in the 1980s. the supreme court adopted that. the brown and williamson case applied it in the case you referenced, justice scalia's opinion. what that opinion says is it's okay for congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect congress to speak clearly before such a delegation. that had not happened, in my ...

Amendment? robert bork described it as an inkblot. do you share that assessment? >> so i think the ninth amendment and the privileges and immunities clause and the supreme court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the supreme court now which is that the supreme court precedent protects certain unenumerated rights so long as the rights are as the supreme court said in the gluxburg case rooted in history and tradition and justice kagan explained this well in her confirmation hearing that...

Path, starting with the 2008 whole foods case where whole foods attempted to buy wild oats markets. very complicated, so i'm going to go to the fwguts of it from opinion. the majority of courts and the -- what happened here is republican majority ftc challenges the deal, and then you dissent. you apply your own pricing test to the merger. my simple question is, where did you get this pricing test? >> well, i would have affirmed the decision by the district judge in that case, which allowed the merger and the district judge, judge friedman, appointee of president clinton's to the district court...

I personally view this as, you know, law making from the court, the citizens united case. so i'm trying to figure out where you are on this. do you think contribution limits have constitutional problems, and what can congress actually do to rein in the flood of money? >> as a d.c. circuit judge, i've upheld contribution limits in two important cases. one ruling against the rnc in rnc versus fec where it was challenging limits on contributions to political parties. i rejected that challenge. in another, bloomen versus fec, contributions by foreign citizens to u.s. election campaigns. i upheld t...

I'm trying to figure that out, what legal authority actually requires a government to satisfy your standard to block a merger. i think what i remember in our discussion, you cited these nonbinding horizontal merger guidelines that you used to come up with this test. >> well, you're looking at the effect on competition and what the supreme court has told us, at least from the late 1970s s to look at the effect on consumers and what's the effect on the prices for consumers. the theory of the district court, judge friedman in this case, was that the merger would not cause an increase in prices be...