statement of this position, see United States V. Brown Shoe Co., 370 U.S. 294, 344 (1962) (Congress intended to "promote competition through the protection of viable, small, locally owned business" even when "occasional higher costs and prices might result from the maintenance of fragmented industries and markets"). For other similar statements, see, e.g., Klor's, Inc. V. Broadway-Hale Stores, Inc., 359 U.S. 207, 212-13 (1959); Albrecht V. Herald Co., 390 U.S. 145, 152-4 (1968), overruled by State Oil Co. V. Khan, 522 U.S. 3 (1997); Topco, 405 U.S. at 610-11; see also Fashion Originators' Guild of Am., Inc. V. FTC, 312 U.S. 457, 467 (1941) (holding group boycotts illegal and evidence of procompetitive benefits inadmissible). 39 Fox (1981); Gerla (1988); Lande (1990); Jacobs (1995). Networks in Telecommunications Specifically, courts rejected the notion that exercise of the power of eminent domain or operation under a state franchise was by itself sufficient to render an industry "affected with the public interest." Instead, the inquiry was governed by a multifac- tor balancing test, with no one factor being dispositive. 40 Eventually, the Supreme Court rejected the entire framework as unworkable in its landmark decision in Nebbia V. New York (291 U.S. at 536), and the concept was thereafter regarded as "discarded."4 This is not to say that Brandeisian principles could not support a coherent theory of regulation. It is only to say that no one has yet articulated such a theory with sufficient clarity to be coherent. That said, the populist vision rests in uneasy tension with the modern economy. Brandeisian populism aspires to the type of small-scale economic activity typically associated with Jeffersonian democracy (Rabin 1986). It also tends to value economic stability for its own sake, because instability tends to 40 Hall (1940). In addition, courts have repeatedly rejected the notion that private property that was initially obtained via eminent domain and is currently used to serve the public is somehow entitled