WASHINGTON — At least one of the three judges listening to oral arguments here yesterday about whether or not a lower court erred in allowing Whole Foods to acquire Wild Oats appeared sympathetic to the Federal Trade Commission’s case against the deal, according to a report yesterday. Austin, Texas-based Whole Foods Market won its battle with the FTC last year by arguing that its stores and those of Wild Oats Markets compete against a broad spectrum of food retailers rather than primarily against each other. The FTC is now arguing that the U.S. District Court here did not give enough weight to its arguments against the deal, and could still seek to force Whole Foods to sell additional stores. Antitrust attorneys previously have told SN that by taking the unusual step of appealing the case, the FTC may be primarily interested in clarifying antitrust law for future actions.

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