Federal Trade Commission v. Dean Foods Co.

597

Syllabus.

Respondents, two substantial competitors in the sale of packaged milk in the Chicago area, signed a merger agreement following meetings with representatives of the Federal Trade Commission (FTC) who indicated that the merger would raise serious ques- tions under the antitrust laws. At the time of the merger one of the respondents was the third or fourth largest packaged milk distributor in the area, the other at least the second largest, and together they accounted for 23% of area-sales of packaged milk.

The FTC filed a complaint charging that the'agreement violated § 7 of the Clayton Act and § 5 of the Federaf Trade Commission Act. Thereafter the FTC, under the All Writs Act, 28 U. S. C. § 1651 (a), petitned the Court of Appeals- for a temporary restraining order and -a preliminary injunction to maintain the status quo until the FTC determined the merger's legality. The FTC alleged the probability of its finding an antitrust violation and that the, need for injunctive relief was "compelling" since under the merger one of the respondents would no longer exist; its milk routes and certain of its plants and equipment would be sold and its remaining assets would be consolidated, precluding its restoration as a viabl6 independent company if the merger were subsequently ruled illegal. The petition alleged that the Court of Appeals would consequently be deprived of its appellate juris- diction over final FTC orders and the opportunity to enter a mean- ingful order of its own. The Court of Appeals on the hearing for a preliminary injunction dismissed the petition on, the, ground that the FTC had not entered a ease-and-desist order and had no authority to institute the proceeding, Congress having failed to enact bills introduced for such a purpose. The contract. was then closed. MR. JusTicE CLARx on application issued a preliminary in the acquired injunction against material corporate changes

1. The Court of Appeals has jurisdiction to issue a preliminary

injunction to prevent consummation of the'merger agreement upon • 598

1965.

Syllabus.

a showing that :in effective remedial order would otherwise be virtually impossible once the merger had been implemented, th.us rendering a final divestiture decree futile. Pp. 603-605.

(a) The All Writs Act extends to the potential jurisdiction of an appellate court where an appeal is not then pending but may later be perfected. Pp. 603-604.

(b) The grant in § 11 (c) of the Clayton Act *to courts of appeals of jurisdiction to review final orders of the FTC against illegal mergers on application of any person required thereby to cease and desist such- violations incluides the traditional power to preserve the status quo while administrative proceedings are in progress to prevent impairment of the effective exercise of appel- late jurisdiction. Cf. Whitney Nat. Bank v. New Orleans Bank.

379 U. S. 411. Pp. 604-605.

2. The FTC, under the circumstances alleged in this case, has

standing to seek preliminary relief under the All Writs Act. Pp.

605-612.

(a) It would stultify Congress purpose in entrusting the FTC with enforcement.' of the Clayton Act and granting it the power to order divestiture if the FTC did not have the incidental power to ask the courts of appeals to exercise their authority under the All Writs Act. Pp. 60"6-612. '

(b) The.power of the courts of appeals to grant preliminary relief here derives from the All Writs Act, not the Clayton Act.

(c) Congress' failure to enact proposals that the FTC be empowered itself to issue preliminary relief or to proceed in dis- trict courts for that purpose reflects no intent to circumscribe traditional judicial remedies. Pp. 608-611.

356 F. 2d 481, reversed and remanded.

Solicitor General Marshall argued the cause for peti- tioner. With him on the brief were Assistant Attorney General Turner, Richard A. Posner, Howard E. Shapiro and James McI. Henderson.

Hammond E. Chaffetz argued the cause for respond- ents and filed a brief for respondent Dean Foods Co.

Rothschild filed a brief for respondent Bowfund Corp.

597

Oinion of the Court.

MR. JUSTICE CIARK delivered the opinion of the Court.

At issue here is the power of the Court' of Appeals under the All Writs Act. 28 U. S. C. § 1651 (a) (1964 ed.), to temporarily enjoin the consummation of a merger that is under attack before the Federal Trade Commission as violative of § 7 of the Clayton Act. as amended. 64 Stat.

1125. 15 U. S. C. § 18 (1964 ed.). This case arose on the application of the Commission for a temporary restrain- ing order and a preliminary injunction against respond- ents Dean Foods Company and Bowman Dairy Company to maintain the status quo until the Commission deter- mined the legality of their merger. The Commission alleged that it had issued a complaint against respond- ents under § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act. 38 Stat. 719, as amended, 52 Stat. 111. 15 U. S. C. § 45 (1964 ed.), and that from the facts underlying the complaint 'it is probable that the Federal Trade Commission will enter an order finding a violation of these laws." The petition stated that there was a "compelling" need for preliminary relief since the "acquisition itself will split Bowman in tw--Dean will acquire fixed assets, receivables and good will; Bowman will retain all cash, government and other marketable securities, and some real estate investments" for distri- In addition, it was alleged bution to its stockholders.'

that Dean planned to dispose of moit of Bowman's retail milk routes, certain of its plants and equipment, and to consolidate the remaining assets. The- Commission thus argued that if the merger were allowed to be completed, "Bowman as an entity will no longer exist," and that it "will be 'extremely difficult and very probably impos-

"Since consummation of the merger all assets of Bowman, with the exception of cash and marketable securities which were exempted from the purchase agreement, have been transferred to Dean. Bow- man has ceased dairy operations and now acts as an investment fund, having received and invested the proceeds of the sale.

- Opinion of the Court.

sible'" to restore Bowman as "a viable independent" company if the mergdr were subsequently ruled illegal.

In other words, consummation of the agreement would "prevent the Commission frorh devising, or render it ex- tremely difficult for the Commission to- devise, any effec- tive remedy after its decision on the merits." As grounds for issuance" of an extraordinary writ, the Commission asserted that the Court of Appeilg "will, in effect, be deprived of its appellatejurisdiction. [over final Commis- sion orders] and.of the opportunity to enter -a meaningful final order of its own in respect to this acquisition, since the res in custodia legis-Bowman-will have vanished."" The Court of Appeals entered a temporary restraining order against respondents, as prayed. On the-hearing for a preliminary injunction, however, it dissolved the tem- porary restraining order and dismissed the petition for the reasons that "no cease and desist order has been entered by the Commission relative to the subject matter in the case at bar and . . . we now hold that the Com- mission did not have authority to institute this proceed- ing in this court,. .

In its final judgment the Court of Appeals supported its refusal to grant relief at the

"in the 84th Congress and in the 89th Congress bills spoisored by the said Commission were intio- duced, which bills if enacted iito" law would have conferred upon the Commission such authority as it is 4ttempting to exercise in the case now before this court, but that said measures were not enacted into law and Congress has not provided otherwise, for bestowing this authority upon said Commission."- 356 F. 2d 481, 482.

. ."

A few hours after the Court of Appeals entered its order on January 19, 1966, the contract was closed and Dean acquired legal title to Bowman's operating assets.

597

Opinion of the Court.

Upon application by the Solicitor General on behalf of the Commission, MR. JUSTICE CLARK, after consulting the other members of this Court, entered a preliminary injunction on January 24, 1966, restraining respondents from making any material changes with respect to Bow- man's corporate structure or the assets purchased. This order provided that Dean might sell Bowman's retail. home delivery routes upon terms and conditions accept- to the Commission, but that any milk supplied by able Dean to the purchasers of the routes must continue to be delivered under the Bowman label and from former Bow- man plants. We granted certiorari on February 18, 1966, 383 U. S. 901, and expedited consideration of this case.

We conclude that the Court of Appeals erred and reverse its judgment.

Since the case comes to us from a dismissal on jurisdic- tional grounds we must take the allegations of the Com- mission's -application for a preliminary injunction as true.

We need not detail the facts further than to say that Dean and Bowman were substantial competitors in the sale of packaged milk in the Chicago area, one of the largest markets in the United States, for packaged milk.

'On November 2, 1965, attorneys for Dean and Bowman met with representative§ of the Commission to discuss a proposal by Dean to purchase all of Bowman's plants and equipment, the Bowman name, all customer and supplier lists together with the benefit of their relation- ships, and various other assets, all of which were situated in the Chicago area. Bowman would consequently cease It was emphasized that doing a dairy business there. the inquiry' was merely to ascertain the views of the staft of the Commission and not to secure a formal advisory 'After investigation, on "December 3, 1965, the opinion.

Commission's staff advised Dean's counsel that it believed the acquisition would raise serious questions under the

Opinion of the Court.

antitrust laws, and that on the basis of existing informa- tion the staff would recommend that the Commission. issue a complaint against the acquisition if consumniated.

After further meetings, Dean's counsel informed the Commission's staff on December 14, 1965, that the agree- ment had been signed. A week later the Commission issued a formal complaint charging that the agreement violated § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act.

It appears that at the time of the merger Dean was the third or fourth largest distributor of packaged milk in the Chicago area; Bowman was at least the second largest in that market; and together they enjoyed ap- proximately 23% of the sales of packaged milk in the same area, while the four largest dairy companies had a 43% share thereof. Affidavits attached to the Commis- sion's application alleged that between 1954 and 1965 the number of packaged milk sellers in the Chicago mar- ket had declined from 107 to 57, and that in the four months prior to the filing of the complaint four more firms had been eliminated by acquisitions. From these statistics it was concluded that the effect of Dean's acqui- sition of Bowman would be to substantially lessen com- petition. We place in the margin the Commission's summation of its complaint.2

"(a) Actual or potential competition in the sale and distribution of packaged milk in the Chicago Area will be eliminated or prevented; "(b) Dean, a major competitive factor in the sale and distribution of packaged milk in the Chicago Area, will eliminate Bowman, another major competitive factor in the sale and distribution of packaged milk in the Chicago Area;

"(c) Concentration in the sale and distribution of packaged milk in the Chicago Area will be increased and deconcentration will be prevented;

"(d) The restraining influence on non-competitive behavior in the sale and distribution of packaged milk in the Chicago Area, which

FTC v. DEAN FOODS CO. 597

Opinion of the Court.

The All Writs Act, 28 U. S. C. § 1651 (a), empowers the federal courts to "issue all writs necessary or appro- priate in aid of their respective jurisdictions and agree- able to the usages and principles of law." The exercise of this -power "is in the nature of appellate jurisdiction" where directed to an inferior court, Ex parte Crane, 5 Pet.

(Marshall, C. J.), and extends to the 190, 193 (1832) potential jurisdibtion of the appellate court where an appeal is not then pending but may be later perfected.

Cf. Ex parte Bradstreet, 7 Pet. 634 (1833) (Marshall,

elaborated in a long line of cases, including McClellan v. .Carland, 217 U. S. 268 (1910), where Mr. Justice Day held: " [w]e think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ . .1. may issue in aid of the appellate jurisdiction which might otherwise be defeated . . . ." At 280.

And in Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943), Chief Justice Stone stated that the authority of the appellate court "is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been per-

existed by reason of the independent operation of Bowman, will be eliminated;

"(e) The acquisition will contribute to the over-all trend toward concentration in the sale and distribution of packaged milk in the United States :. . thereby tending to bring about the adverse com- petitive effects described [elsewhere in the complaint];-

"(f) The emergence or growth of smaller packaged milk com- panies in the Chicago Area will be retarded, discouraged or prevented; "(g) The members of the consuming public,-in the Chicago Area and throughout the United States, will be denied the benefits of free and open competition in the sale and distribution of packaged milk."

Opinion of the Court.

fected." At 25. Likewise, decisions of this Court "have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the pre- scribed statutory channels .

Such power has been deemed merely incidental to the courts' jurisdiction to review final agency action . . . ." Arrow Transp. Co. v.

Southern R. Co., 372 U. S. 658, 671, n. 22 (1963). There the Court cited such authority as Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U. S. 4 (1942); West India Fruit & S. S. Co. v. Seatrain Lines,- Inc., 170 F. 2d 775 (C. A. 2d Cir. 1948),' and Board of Governors v. Transamerica Corp., 184 F. 2d 311 (C.A.

9th Cir.),*cert. denied, 340 U. S. 883 (1950).

Section 11 (c) of the Cla~rton Act; as amended, 73 Stat. 243, 15 U. S. C. § 21 (c), gives exclusive jurisdic- tion to review final orders by the Commission against illegal mergers, on application of "ta]ny person re- quired by such order . . . to cease and desist from aiiy such violation," to the courts of appeals "for any cir- cuit within which such violation occurred or within which such person resides or carries on business.". This grant includes the traditional power to issue injunctions to preserve the status quo While administrative proceed- ings are in progress and prevent impairment of the effective exercise. of appellate jurisdiction. Cf. Conti- nental Ill. Nat. Bank v. Chicago, R. I. & P R. Co., 294 U. S. 648, 675 (1935). A recent case involving a similar statutory proceeding is dispositive of this issue.

Whitney "Nat. Bank v. New Orleans Bank, 379 U. S.

411 (1965), raised the question whether holding com- panies were "lawfully entitled" to operate subsidiary banks within Louisiana, a question we held should be determined in the first instance by the Federal Reserve Board. We further concluded that the Board should reconsider its initial approval of 'such a plan in light of

FTC v. DEAN FOODS CO. 597

Opinion of the Court.

an intervening Louisiana statute, and so gave the parties, who had sought review, of the Board's order before the Court of Appeals for the Fifth Circuit, an opportunity to move that the case be remandpd to the-Board. -It was noted that the Court of Appeals had authority "to issue such orders as will protect its jurisdiction pending final determination of the matter," at 415, and that § 1651 (a) empowered it to stay "th order of dpproval of the Federal Reserve Board pending final disposition In response to the of the review proceeding." At 425. argument that the stay would not be sufficient because the Comptroller of Currency nonetheless intended to, issue a certificate to the bank, we stated -,that if "the Court of Appeals should find it necesiary to take dirdt, action-to maintain the status quo and prevent the open- ing of the bank, it has ample power to do so" by an injunction -against- the applicants before the Federal Re- serve Board themselves, At 426. Such action would be analogous to the relief requested here by the Commission.3 These decisions furnish ample precedent to support jurisdiction of the Codrt of Appeals to issue a preliminary injunction preventing the consummatioii of this 'agree- ment upon a showing that an effective remedial order, oncethe merger was implemented, would otherwise be virtually- impossible, thus rendering the enforcement of any final decfree of divestiture futile.

Dean and Bowman insist, however, that as a creature of statute the Commissioii may exercise only, those func- tions delegated to it by Congress, and that Qongess has

Of course, the courts of appeals haye

traditionally framed § 1651 (a) writs in the form of compulsory injunctions aimed at pri- vate parties. E. g., Application of President & Directors of George- town College, 118 U. S. App. D. C. 80, 331 F. 2d 1000, cert; denied, 377 U. S. 978 (1964). See Recent Cases, 77 Harv. L. Rev. 1539, 1542 (1964).

Opinion of the Court.

failed to give the Commission express statutory authority to request preliminary relief under the All Writs Act.4 But the Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Com- mission action.

It -would stultify-congressional purpose to say that the Commission did not have the incidental power to ask'the courts of appeals to exercise their author- ity derived from the All Writs Act.'

Indeed, the opin-

4 For the proposition that the Commission must havd express statutory authority to seek injunctions in the courts of appeals two cases are cited. The first, Humphrey's Executor v. United States, 295 U. S. 602 (1935), has no relevance to our problem. And the other, Federal Trade Comm'n v. Eastman Kodak Co., 274 U. S.

619, 623-625 (1927), even though apposite, has been repudiated. It held that in fashioning a final decree the Commission "exercises only the administrative functions delegated to it by the Act," and, there- fore, could not order divestiture of laboratories acquired through a stock purchase. This view was rejected in Pan American World Airways, Inc. v. United States, 371 U. S. 296, 312-313, nn. 17-18 (1963), the Court holding that "the power to order divestiture need not be explicitly included in the powers of an administrative agency to be part of its arsenal of authority," citing- Gilbertville Trucking Co. v. United States, 371 U. $. 115 (1962).

5Such a -holding would especially interfere with the functions Congress has given the Commission, in the merger field. As THE CHIEF JUSTiCE stated in Brown Shoe Co. v. United States, 370

U. S. 294 (1962), the Congress "ought

to assure the Federal Trade.

Commission and the courts the power to brake this force [business concentration] at its outset and before it gathered momentum."

At 317-318. But without standing to secure injunctive relief, and thereby safeguard its ability to order an effective divestiture of acquired properties, the Commission's efforts would be frustrated.

As MR. JusTIcE DOUGLAS said in United States v. Crescent Amuse-

"The acquisition of a competing theatre terminates at once its' competition. . . . And where businesses have been merged or

FTC v. DEAN FOODS CO. 597

Opinion of the Court.

ions in Arrow Transf. Co. and Whitney Nat. Bank necessarily recognized the standing of administrative agencies to seek such preliminary relief to ensure effec- tive judicial review. Both decisions referred to Board of Governors v. Transamerica Corp., supra, where the Court of Appeals stayed a merger on application .by the Federal Reierve Board. See also Public Utilities Comm'n v. Capital Transit Co., 94 U. S.- App. D.'C.

140. "214 F. 2d 242 (1954), and West India Fruit &

S. S. Co. v. Seatrain Lines, Inc., 170 F. 2d 775, 779

(C. A. 2d Cir. 1948). There is no explicit statutory authoritS for the Commission to appear in judicial re- view proceedings, but no- one has contended it cannot appear in the courts of appeals to defend its orders. Nor has it ever been asserted that the Commission could not bring contempt actions in the. appropriate court of appeals when the court's enforcement orders were vio- lated, though it has no statutory authority in this respect.

Such ancillafy powers have always been treated as essdn- tial to ,the effective discharge of the Commission's responsibilities.

purchased and closed out it is commonly impossible to turn back the clock."

Here the plan of merger itself contemplates the sale of the acquired home delivery milk routes and certain milk plants. In addition, Bowman has retained its cash and securities, with the intention ultimately to distribute them to its stockholders.

If consummation of the merger is not restrained, the restoration of Bowman as an effective and viable compeiitor will obviously be impossible by the time a final order is entered. This is not unusual. Administrative experience shows that the Commission's inability to unscramble merged -assets frequentl prevents bntry of an effective order of divestiture. E. g., Ekco Products Co., Trade Reg. Rep. 16,879 (1964) (1963-1965 Transfer Binder), aff'd, 347 F. 2d 745 (C. A. 7th Cir. 1965); Foremost Dairies, Inc., 60 F. T. C. 944, order modified per stipulation (C. A. 5th Cir. 1965),,(Docket No. 18,815).

Opinion of the Court.

It must be remembered that the courts of appeals derive their power to grant preliminary relief here not from the Clayton Act, but from the All Writs Act and its predecessors dating back to the first Judiciary Act of 1789. Congress has never restricted the power which ihe courts of appeals may exercise under that Act. Nor has it withdrawn from- the Commission its inherent standing as a suitor to seek preliminary relief in courts of appro- priate jurisdictioh.6 In the absence of explicit direction from Congress we have no basis to say that -an agency charged with protecting the public interest cannot re- quest that a court of appeals, having jurisdiction to re- view administrative orders, exercise its express authority under the All Writs Act to issue such temporary injunc- tions as may be necessary to protect its own jurisdictioh.

Respondents point-as did the Court of Appeals- to the fact.that the Commission sought authority from the Eighty-fourth through the Eighty'-ninth Congresses to grant preliminary injunctions itself or to proceed in the district court as the Department of Justice can under the Clayton Act.7 Both former. Chairman Gwynne and Chairman Dixon appeared in support of the measures,8 and referred to Federal Trade Comm'n v. International 6 Cf. Public Utilities Cbmm'n v. Capital Trahsit Co., 94 U. S. App. D; C. 140, 214 F. 2d 242, 245 (1954), where the Court of Appeals for the District of Columbia Circuit gave As one of its reasons for granting an injunction the fact that "the moving party in the-litiga- tion was the Public Utilities Commission of the District of Columbia, a governmental agency clothed by Congress with special responsi- bility in the matters involved."

-E. g., H. R'. 9424 and S. 3341 and 3424, 84th Cong., 2d Sess.

(1956); H. R. 49 and 1574, 89th Cong., 1st Sess. (1965).

8 Hearings before the Antitrust Subcommittee of the House Com- mittee on the Judiciary, 84th Cong., 2d Sess., ser. No. 15, p. 35 (1956); Hearings before the Subcommittee on Antitrust and Monop- oly of the Senate Committee on the Judiciary on S. 198, S. 721,

S. 722 and S. 3479, 85th Cong., 2d Sess., 42-45 (1958) (testimony

of Chairman Gwynne). Hearings before the Antitrust Subcommit-

FTC v. DEAN FOODS CO. 597

Opinion of the Court.

Paper Co., 241 F. 2d 372 (C. A. 2d Cir. 1956), which held the Commission had no standing to seek preliminary injunctions from the courts of appeals.'

In addition, sev- eral Congressmen made statements-, regarding the need for statutory amendment." However, no -proposal was put before the Congress relating to the authority of the Commission to secure preliminary relief before the courts of appeals in accordance with § 1651 (a). The proposals concerned only the power of the Commission itself to issue preliminary relief or to proceed, in the district courts for that purpose.

Congress neither enacted nor rejected these proposals; it simply did not act on them." Even if it had, the legis- lation as proposed would have had no effect whatever on the power that Congress granted the courts by the All Writs Act. We cannot infer from the fact that Con- gress took no action at all on the request of the Com-

tee of the House Committee on the Judiciary, 87th Cong., 1st Sess., -ser. No. 5, pp. 85--86 (1961)

(testimony of Chairman Dixon).

9They also directed attention to the denial of injunctive relief in Federal Trade Comm'n v. Farm Journal, Inc. (C. A. 3d Cir. 1955) (unreported). Both men failed to mention the contrary decision in Board of Governors v. Transamerica Corp., 184 F. 2d 311 (C. A.

9th Cir.), cert. denied, 340 U.S. 883 (1950).

In Ekco Products Co., Trade Reg. Rep. 116,879 (1964) (1963-1965 Transfer Binder), aff'cr, 347 F. 2d 745 (C. A. 7th Cir. 1965), Commissioner Elman stated that the question of the Commission's ability to obtain a preliminary injunction under the All Writs Act "has not been authoritatively answered." At 21,905, -n. 10.

10 Hearings before the Subcommittee on Antitrust and Mohopoly of the Senate Committee on the Judiciary on S. 198, S. 721, S. 722 and S. 3479, 85th Cong., 2d Sess., 156-157 (1958)' (testimony of Congrewman Celler). Hearings bef6re the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 42-45 (1961) (statement of Congressman Patman).

"Cf. Helvering v. Hallock, 309 U.. S. 106, 120 (1940), where it was said that to give weight to the nonaction of Congress was to "venture into speculative unrealities."

Opinion of the Court.

mission to grant it, or a district court power to enjoin a merger that Congress thereby expressed an intent to circumscribe traditional judicial remedies, Cf. Scripps- Howard Radio, Inc. v. Federal Comnunications Comm'n, 316 U. S. 4, 11 .(1942). The decision in Wong Yang Sung v. McGrath, .339 U. S. 33 (1950), is apposite.

Following an adverse decision in Eisler v. Clark, 77 F. ,Supp. 610. (D., D.. C: 1948), the Department of Jus-. "tice asked Congress for legislation exempting the Immi- gration Service from the. Administrative Procedure Act.

60 Stat. 237, 5 U. S. C. § 1001 (1964 et.). As was the case here, the appropriate committees of both Houses feported the proposal favorably but Congress adjourned without taking any action. The Department nonetheless insisted in Wong Yang Sung that hearings in deportation cases did not have to conform to the requirements of the Administrati-e Procedure Act.

In his discussion of legislative history Mr. Justice Jackson wrote -for a unan- imous Court that "We will not draw the inference, urged - by petitioner, that- an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legiilation which will terminate or avoid adverse contentions and litigations." At p. 47. This Court has consistently refused to construe such requests by govern- ment agencies and the resulting nonaction of the Con- gress g4 affirmative evidence of no authority. 2 Thus, in United 4stdtes v. du Pont. & Co., 353 U. S. 586 (1957),

!"During

the 35 years before this action was* 4lirought [in 1949], the Government did not invoke 17 against'vertical acquisitions. * The Federal Trade Commission has said that the section did not apply to veriical acquisitions. See' F. T. C., Report on

12 Cf. United States v.Philadelphia Nat. Ian, 374 U. S. 321, 3"839 (1963).

FTC v. DEAN FOODS CO. 611 597

Opinion of the Court.

Corp6rate Mergers and Acquisitions, 168 (1955),

H. R. Doc. No. 169, 84thCong.9 1st Sess. Also, the

House Committee considering the 1950 revision of § 7 stated that '... it has been thought by some that this legislation [the 1914 Act] applies only to the so-called horizontal mergers.... ' H.. R. Rep..

No. 1191, 81st Cong., 1st Sess- 11. The H~use Re- port adds, however, that the 1950 amendment was purposed '.. . to make it clear that the bill(applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal ... ' (Em- phasis added.)

"This Court has-the duty to reconcile administra-. tive interpretations with the broad antitrust pol- icies laid down by Congress. . . The failure of the Commission to act is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the [1914] Act!' .At p,-590.

Despite the representations of the Commission that the 1914 Act did not apply to vertical mergers', its sponsor- ship of legislation to so enlarge its coverage, and the passage of the 1950 Act by the Congress for this purpose, this Court nonetheless held that the 1914 Act included vertical mergers from its very inception, and *thus re- quired du Pont to divest its interest in General Motors stock, which had been acquired ini 1915.

It is therefore clear that the "proceedings" in the Con- gress with reference to the authority of the Commission itself to issue or apply to the diptrict courts for the issuance of preliminary injunctions in merger cases have no relevance whatever to the question before us.

In short, Congress gave no attention to the exercise of judi- cial power by the courts of appeals under the All Writs Act, leaving that power itact and, the standing of the Commission to invoke it -undiminished. We thus hold

612

"FORTAS, J., dissenting.

that the Commission has standing to seek preliminary relief from the Court of Appeals under the circumstances alleged. As stated earlier, we must take the allegations of the Commission as true, and so do not pass upon whether a preliminary injunction should be issued. That is for the Court of Appeals to decide on remand, as it would decide any application to it for relief under the All Writs Act.

Reversed and remanded.

MR. JUSTICE FORTAS, with whom MR. JUSTIC HARLAN, MR. JusTICE STEWART and MR. JUSTICE WHITE join, dissenting.

The Court today decides that the courts of appeals must entertain original applications by the Federal Trade Commission for the issuance of preliminary injunctions to restrain mergers alleged to violate § 7 of the Clayton Act, 15 U. S. C..§ 18 (1964 ed.), pending proceed- ings before the Commission to determine whether such mergers violate that section.

In so deciding, the Court determines that the Com- mission-axi administrative agency with defined and cir- cumscribed powers-is authorized to seek such relief in the courts of appeals; and that the courts of appeals, under the All Writs Act, 28 U. S. C. § 1651 (a) (1964 ed.), have power to entertain the Commission's petition and to grant the injunctive relief.

This decision cannot be supported. Not a single one of the prior decisions of this Court cited as authority sustains it. either specifically or indirectly, or by principle or analogy. No statute of the Congress can be appro- .priately summoned to the Court's aid. The plain, un- mistakable intent of the Congress in defining the Coin- •mission's powers and the jurisdiction of the courts of appeals is that no such threshold injunctive power is available at the Commission's behest. The Act plainly and explicitly vests the governmental power to restrain and enjoin violations of the Act in the district courts,

FTC v. DEAN FOODS CO. 597

FoRTAs, ., dissenting.

not in the court of appeals; and it plainly and explicitly empowers the United States attorneys "under the direc- tion of the Attorney General"-and not the Federal Trade Commission-to institute such proceedings. 15

U. S. C. § 25 (1964 ed.).

Since 1956, the Federal Trade Commission has per- sistently requested the Congress to enact legislation giv- ing the Commission itself the power to enjoin, or alter- natively, to seek a district court order to, enjoin mergers pending the 'Outcome of the Commission's proceedings.

Congress has just as persistently refused to do so.

Beginning in 1956, at least 37 bills have been intro- duced in the Congress, directed to providing the Com- mission with a threshold, temporary remedy., None has been enacted, despite the unequivocal statements of the three chairmen of the Commission who served during those years that the agency presently has no power to seek relief ancillary to its administrative proceedings.

This Court now bestows what the Congress has withheld.

The statements in the Court's opinion indicating that its result is necessary unless we are to "stultify congres- sional purpose" fly in the teeth of the record, plainly written and repeatedly reiterated. Congress is keenly interested in enforcement of § 7. But it has demon- strated over and over again that it has no interest in arming the Commission with the power today conferred upon it.

It created and equipped the Commission with administrative and quasi-judicial powers-to serve a func- tion quite distinct from that of a prosecutor or litigant.

It has repeatedly declined the urgent request to revise the Commission's role and function.

Indeed , Congress has refused to empower the Commission to ask for this relief in an otherwise suitable forum-the district courts.

But the Court today gives this agency, which Congress obviously regards as unsuitable for the purpose, power to resort to an unsuitable forum-the courts of appeals- 'for the same purpose.

6f4

FoRTAs, J., dissenting.

The Commission, the Executive Branch of the Gov- ernment, the Congress and all courts which have passed upon the" oint have until today proceeded on the ex- pressed premise that the Federal Trade Commission has no authority to seek such relief.1 I have not found a single cbmmentator -in this much-discussed field of law who has suggested .that the Commission has such author- ity. and none is cited in the. Court's opinion or in the briefs of the parties.2

(W. A. 3d Cir. 1955).

1 See Fede4 Trade Comm'n v. International Paper Co., 241 F. 2d 372 (0. A. 2d Cir. 1956); Federal Trade Comm'n v. Farm' In In the Matter of A. G. Spald& Journal, In ing & Bros., IV. (F. T. C. Docket No. 6478), the Commission failed to 6btain prW. hminary relief in the First Circuit, but did get respond- ent's commi4ment not to alter the status quo save on 30 days' notice.

See A. G..?palding & Bros., Inc. v. F. T. C., 301 F. 2d 585 (C. A.

3d Cir. 162).

The sole instance where injunctive relief was obtained- is Board of Governors v. Transamerica Corp., 184 F. 2d 311 (C. A. 9th Cir.

1950), cert. denied, 340 U. S. 883. In Transamerica the threatened action would have defeated the Board's jurisdiction entirely. The Board (whose role in § 7 enforcement is like the FTC's) argued both in the Court of Appeals and in opposition to.the petition for certio- rari, that if Transamerica were not restrained from disposing' of stock holdings the legality of whose acquisition was in issue in the administrative proceedings, the effect under the pre-1950 version of § 7, as construed by this Court in Arrow-Hart & Hegeman Electric Co. v. F. T. C., 291 U. S.' 587, would be to "oust the Board of its [and to] de- jurisdiction under Section 11 of the Clayton Act . .. feat the exclusive jurisdiction of the Court of Appeals to enforce or . ." Government's affirm such order as the Board'might make ..

Brief in Opposition in Transamerica Corp. v. Board of Governors (Nos. 322 and 323, October Term, 1950), at pp. 5, 8-9, 15. See also United States v. Philadelphia Nat. Bank, 374 U. S. 321, 339, n. 17, where Transamerica appears to have been distinguished from Inter- nationa Paper, supra, precisely on the ground that the writ there was necessary to protect the "jurisdiction" both of the agency and of the Court of Appeals---a conventional use of the All Writs Act.

2 On the contrary, the common view is that such authority is entirely lacking. See, e. g., Kaysen & Turner, Antitrust Policy

FTC v. DEAN FOODS CO.

-615

597

FORTAS, J., dissenting.

I can only assume that the majority is ThotiVated by a desire to lend all assistance' to the F?deral Trade Com- mission in its administration of .7. Her wever commend- able this motivation may be in general, it is here entirely misdirected.

Indulgence in this generous spirit unjust- fiably burdens the courts of appeals with a fact-fixding duty which they are unable to perform; disrupts- -the statutory division of functions between the Commission and the Department of Justice;, and deprives parties of the opportunity for fair and careful consideration of their proposals which is promised by our law, by the decisions of this Court and the economic needs of the Nation. ' The Clayton Act contains specific and comprehensive enforcement provisions. Thereis no vacuunm to be filled by ingenuity. There is no room for improvisation. The Act is fully armed with a triple arsenal. Eniforcemient powers with respect to mergers under § 7 are vested in the Department -of Justice, the Federal Trade Commis- sion and private persons who claim injury as a result of the merger. Both the Department of Justice and private litigants are authorized to seek injunctive relief in the district courts. But the role and function of the Federal Trade Commission is. differently conceived.

The powers of the Commission and tlhe manner of their exercise and of review and -enforcement of Comission orders are set out in meticulous detail. Whenever the Commission "'shall have reason to believe that any per- son is violating or has violated" § 7, it shall issue a com- plaint. The complaint is to be served upon "such person and the Attorney General." The Attorney General may intervene in the Commission's proceeding. He may in- stitute actions in the district court for injunctive relief.

258 (1959); Duke, Scope of Relief Under Section 7 of the Clayton Act, 63 Col. L. Rev. 1192, 1206, n. 85 (1963); Note, 79 Harv. L.

Comment, 32 N. Y. U. L. Rev. 1297 (1957).

616

FORTAS, J., dissenting.

The Commission is to hold a hearing; testimony is to be taken; the Commission is to "make a report in writ- ing"; and it is empowered to issue an order to cease and desist and to compel the respondent to "divest itself of the stock . . . or assets . . . held . . . contrary to the provisions of [§ 7]." 15 U. S. C. § 21 (b) (1964 ed.).

(Emphasis supplied.) The respondent may obtain re- view of the order in an appropriate court of appeals in the manner and with the consequences meticulously defined in the Act, as hereinafter discussed.

There is no question-I submit that there can be no question-that Congress from the outset intended that the Federal Trade Commission should not have other or different or supplementary or additional power to enforce § 7.3 The Commission was created in the same

3 The Court's opinion asserts, in alleged demonstration of the "ancillary powp"s" which have been inferred on the Commission's behalf, that it may bring "contempt actions in the appropriate court of appeals when the court's enforcement orders were violated, though it has no statutory authority in this respect." The Court errs. The 'The ma- Commission's powers in this respect are not "implied." chinery by which the Commission -procures compliance with its orders is, and always has been, spelled out by statute. Until 1959, ond could with impunity violate an FTC Clayton Act order. Such an order was not final until the respondent sought judicial review and a Court of Appeals granted enforcement. Disobedience.thereafter wa's a con- In the event the respondent did not seek review, tempt of court. the Commission was required to ascertain that he was violating its order and then proceed, pursuant to express statutory provision (15 U. S. C. § 21), to seek enforcement in the courts of appeals.

See 28 U. S. C. § 2112 (1964 ed.), authorizing the courts of appeals to promulgate rules for enforcement proceedings; and see, e. g., 1st Cir. R. 16. Cf. Fed. Rule Civ. Proc. 70. A violation thereafter constituted contempt of court. The courts declined to infer any more convenient substitute for this three-step process. See Federal Trade Comm'n v. Henry Broch & Co., 368 U. S. 360, 365; Federal Trade eomm'n v. Ruberoid Co., 343 U. S. 470, 477-479.

The statute was amended in 1959. An FTC order under the Clayton A t -is now final upon expiration of the time allowed re-

FTC v. DEAN FOODS CO. 597

FORTAS, J., dissenting.

year that the Clayton Act was adopted.

It was sup- posed to be an expert, administrative agency.

It was not intended to be a litigation arm of the United States ex- cept- as its own final orders might be involved.4 It was not intended to have power to seek or deliver the quick result, even in emergencies. ,This power, so far as the Government is concerned, was .explicitly, carefully con- fined to the district courts on application of the United States attorney "under the direction of the Attorney General."

Section 15 of the Clayton Act, 15 U. S. C. § 25, ex- pressly authorizes the Department of Justice to proceed in the district courts of theUnited States to obtain pre- liminary relief against allegedly unlawful mergers. Sec- tion 16 makes the same remedy available on application of private litigants. 15 U. S. C. § 26 (1964 ed.). No- where is such power given to the Commission.

It would be incredible to suggest that this omission was an over- sight-or even an error.

It was by design-and, I suggest, by rational design.

'The Commission was not ihitended to-it has' no power to-it should not-make a judgment on the merits prior to notice and hearing. To sanction its doing so is to strike a devastating blow at the fundamental theory upon which the exercise of both prosecutorial and adjudicatory functions by an administrative agency is based. Cf.

spondent to seek judicial review.

If lie does not appeal the order and violates its ternms after it becomes final, the Government may proceed, pursuant to statute (15 U. S. C. §§ 2 1 (g) and (1)), to seek civil penalties of up to 85,000 per violation.

In short, and contrary to the suggestion in the Court's opinion, the Commission's power to enforce compliance with its orders is and has been wholly statutory. Nothing has been left to implication.

4 See 51 Cong. Rec. 1963, 13047, 8977 (1914); Rublee, The Original Plan and Early History of the Federal Trade Commission, 11 Acad.

Pol. Sci. Proc. 666 (1925). %

618

FORTAS, J., dissenting.

§5 (c) of the Administrative Procedure Act of 1946, 5 U. S. C. § 1004 (c) (1964 ed.).

The Commission, prior to taking evidence and writing a report, is supposed to make only a very limited judg- ment:, that there is "reason to believe" the law is be- ing violated. But to obtain a preliminary injunction, it must-without hearing the other side, and ordinarily merely on its staff's recommendation, necessarily based upon a quick exposure .of the facts-file affidavits or produce evidence with the calculated purpose of dem- onstrating to the court of appeals that consummation of the merger will have such adverse effects that it must be halted in limine. In. fact; and in all realism, it must take positions and establish, with sufficient positiveness to overcome strenuous opposition, that the merger will tend substantially to lessen competition or create danger of monopoly, that it is harmful to the economy, inime- diately threatening in its consequences, and that it is unlawful. There must be Commission conclusions, not merely the views of the staff. Their assertion and neces- sarily stout advocacy make a mockery of a subsequent quasi-judicial proceeding in which the Commission is supposed objectively to consider the same issues on the basis solely of the record.

The clear design of the statute is that the authority to decide,' on behalf of the Government, to seek the injunction, and the powerful remedy of preliminary power to do so, are vested in the Attorney General. That It is deliberately is his business-his type of function. withheld from the Commission. That is not its business.

The Commission is supposed to be an expert agency, acting deliberately, bringing to bear upon the complex economic problems of a merger, that judgment and ex- perience which can emerge only from careful factual in- quiry, the taking of evidence and the formulation of a ieport. The Federal Trade Commission was not in-

FTC v. DEAN FOODS CO.

.619

597

FORTAS, J., dissenting.

tended to be a gun. "' a carbon copy of the Department of Justice.'.

It has steadily been acknowledged by spokesmen for the Commission, by leading members of the Congress, and by officials of the Executive Branch that the FTC has no basis in statute to seek the relief the Court today makes available to it. In the Appendix to this opinion, I refer to these acknowledgments and I describe the unsuccessful, oft-repeated efforts of the Commission to obtain legislation to give it the power it has now success- fully obtained from this Court.-

Where Congress has determined that it is appropriate for the Commission to seek threshold relief in order to protect the public, it has expressly so provided-directing that the Commission pro- ceed in an appropriate tribunal, the United States District Courts.

See § 13 (a) of the Federal Trade Commission Act (Wheeler-Lea amendments), 15 U. S. C. § 53 (a) -(1964 ed.); § 302 of the Food, Drug, and Cosmetic Act, 21 U. S. C. § 332 (1964 ed.); § 7 (b) of the Wool Products Labeling Act, 15 U. S. C. § 68e (b) (1964 ed.); § 9 (b) of the Fur Products Labeling Act, 15 U. S. C. § 69g (b) (1964 ed.); § 6 (a) of the Flammable Fabrics .Act, 15 U. S. C. § 1195 (a) (1964 ed.) ; and § 8 of the Textile Fiber Products Identi- fication Act, 15 U. S. C. § 70f (1964 ed.).

See Elman, Rulemaking Procedures in the FTC's Enforcement of the Merger Law, 78 Harv. L. Rev. 385, 387-388 (1964).

The Court declares that these materials are irrelevant because Congress had before it proposals to authorize the Commission itself to issue restraining orders pendente lite or to apply to the district courts for such relief. But the fact that no one proposed and Congress did not consider providing that the Commission might. ,have recourse to the courts of appeals merely emphasizes the ex- treme and extraordinary nature of the device which the Court today creates. The plain fact, and the short answer, is that Congress re- fused to authorize preliminary restraints at the command of the Commission.

Its refusal to authorize such relief in the district courts demonstrates, a fortiori, that it would not create such a remedy in the courts of appeals.

The Court also suggests that it would be improper to draw con- clusions from congressional inaction. The inference that I draw from congressional refusal to make preliminary injunctive relief

FoRTs, J-., dissenting.

In short, the Commission has no power to decide that a proposed merger should be enjoined pendente lite; it has no authority to seek such relief, temporary or perma- nent, iii any court-trial or appellate; and Congress has repeatedly turned a deaf ear to its- requests for such power.

It should not be given such jurisdiction by fiat of this It should do what Congress intended it to do-

Court. upon 'determining that it has "reasonable cause to be- lieve" that § 7 is being or has been violated, it should issue a complaint, hold a hearing, make a report, and If exigencies require, it may refer the issue an order. matter to the Attorney General for consideration as to whether the Department of Justice should seek a prelim- inary injunction in the, appropriate district court.'

If

available to the FTC is that such inaction confirms (a) that Congress in devising the statutory plan did not intend the Commission to have such power, and (b) that the relief sought is not consonant with the congressional,plan for administering § 7.

In fact, this is not a situation where the agency went to Congress in the belief "that its authority was unclear, or to remove doubts concerning it.

Compare United States v. Speers, 382 U. S. 266, 274-275; United States v. du Pont & Co., 353 U. S. 586, 590; Wong Yang Sung v.

McGrath, 339 U. S. 33, 47-48. Here, there is no doubt-that the agency sought additional powers, not clarification* It admitted-it asserted-that it had no present authority to obtain preliminary re- lief (see Appendix to this opinion).

It sought what it confessedly, did not have. It sought this not once, but repeatedly, over a period of 10 years. Congr'ess did not grant its request. Nor should we.

See -Fribourg Navig. Co. v. Commissioner, 383 U. S. 272, 279-286; Blau v. Lehman, 368 U. S. 403, 412-413.

s Spokesmen for the FTC have frequently acknowledged the avail- abifity of such a course. See, e. g.. Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5,..pp. 101-102 (testimony of Paul Rand Dixon) (1961); Kintner, The Federal Trade Commission in 1960-Apologia.

Pro Vita Nostra, 1961 Antitrust Law Symposium 21, 41.

The Commission also has on occasion successfully employed the technique of obtaining an agreement of the parties to segregate

FTC v. DEAN FOODS CO.

.621

597

FORTAS, J., dissenting.

the merger is consummated, the Commission should, if warranted, exercise the enormous power that the statute expressly gives it: to require the offender to "divest itself of the stock, or other share capital, or assets, held . . . contrary to the provisions" of § 7.

It is a clich6 of doubt- ful truth in this situation that an omelette cannot be unscrambled. This Court, as well as the Commission, has entered such orders of divestiture after-arid some- times long after-the merger has been consummated.

See. e. g., United States v. Von's Grocery Co:, ante,' p.

270 (decree six years after merger); United States v.

El Paso Gas Co., 376 U. S. 651 (decree seven years after' merger). Unscrambling may be difficult; but Congress may well have been justified in the view that the extra effort is warranted in the interests of securing what it hoped would be careful administrative consideration of the merits of proposed mergers. "Not every merger de- serves sudden death.

In many situations, mergers serve no purpose except the pursuit of bigness. But some are distinctly beneficial to the achievement of a competitive economy.' I respectfully submit that this Court should not encourage the machinegun approach to the vastly important and difficult merger problem.

It should in- dulge the Congress in its desire that at least the Federal Trade Commission should be required to inove with cau- tion and deliberation. A "preliminary" injunction, in. effect during the years required to complete the Commis- sion's proceedings, often-probably usually-means that

asets so as to facilitate divestiture should it be decreed. See, e. g.,

A. G. Spalding & Bros., Inc. v. F. T. C.. 301 F. 2d 585, 588 (C. A.

3d Cir. 1962).

"For example, in some situations the. merger of relatively small competitors may result in creation of an enterprise capable of mean- ingful competition with a company otherwise in unchallenged'domi- nation of an industry. See Browni Shoe Co. v.. United States. 370

U. S. 294, 319, and legislative materials therein cited.

FORTAS, J., dissenting.

the plans to merge will be abandoned." We should not beguile ourselves by ignoring this point. "Preliminary" here usually means finat And I respectfully suggest that it is permissible for Congress to insist that the merits of mergers should be carefully considered.

I come now to the Second phase of the Court's opinion.

Having satisfied itself that the Commission may apply to the courts of appeals for preliminary injunctions, the Court turns to the question of the jurisdiction of the appellate courts to entertain such applications.

It finds jurisdiction in the courts of appeals by reason of the All Writs Act: "The Supreme Court and all courts estab- lished by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

28

U. S. C. § 1651 (a).

This is, in my opinion, a totally unjustified employ- ment of the All Writs Act. That Act is an implementing statute, designed to authorize the c6urts to supply defi- *ciencies in procedure so as- to enable them effectively to exercise their jurisdiction. The Act is abused where, .as here, it is contorted to confer jurisdiction .where Con- gress has plainly withheld it. The reason why this Court may not command or vindicate the exercise of jurisdic- tion by the courts of appeals to issue, as an original matter, injunctions against claimed violations of § 7 are overwhelming.

In summary, they are:

1. The courts of appeals have no jurisdiction with

respect to § 7 except to review an order entered by the Commission after statutory proceedings. Until such an order is entered, they have no jurisdiction, either existing or potential, which an injunctive order may implement.

10 See* Kaysen & Turner, Antitrust Policy 248

(1959) Note, -' 1A N. Y. U. L. Rev. 771, 772, n. 7 (1965), and cases cited therein.

FTC v. DEAN FOODS CO. 597

FORTAS, J., dissenting.

2. By express statutory provision, even after a Com-

mission order has been entered, the courts of appeals have* no jurisdiction as to the merits of the merger, on application of the Commission. Only a party affected by the Commission's order may file a petition to review.

If one does not, the Commission's sole remedy is to seek .penalties in the district courts under 15 U. S. C. § 21 (1).1

3. The statute contains its own "all writs" provision

which is clearly and specifically limited to. instances in which the court of appeals' jurisdiction has already at- tached upon petition to review a.Commission order filed by a person who.is the target of that order.

4. There is not a single precedent of this Court which

supports the Court's conclusion. None of the cases of this Court cited in the.majority opinion lends it the slightest support.

tions against mergers is vested in the district courts, upon application of the Department of Justice or a private per- son. The courts'of appe'als have no jurisdiction to enter such orders.

6. The courts of appeals are not equipped to make

the original, complex factual determinations necessary to decide whether a prospective merger should be enjoined.

To burden them with this task is to distort their func- tion; to- saddle them with a function which they canno.t to load upon them the necessity of twice perform; passing upon a challenged merger; and to deprive the parties of an opportunity" for a hearing in a forum equipped to make original factual determinations.

The jurisdiction and powers of the courts of appeals with respect to Commission proceedings' under § 7 are defined by the statute in specific and exhaustive detail.

1 See note 3, supra.

FORTAS, J., dissenting.

15 U. S. C. § 21 (c).

A petition to review may be filed with an appropriate court of appeals by "[a]ny person required by [an] order of the commission" to cease or desist or to divest itself of stock or assets. 15 U. S. C. § 21 (c). The Court's jurisdiction attaches upon the filing of the petition, ibid., and becomes exclusive upon filing of the record with it.

15 U. S. C. § 21 (d). The Commission's find-

ings as to the facts are conclusive if supported by sub- stantial evidence.

If additional evidence is to be taken, the Court must remand to the Commission; it cannot itself take evidence. Ibid. The Court may affirm, modify or set aside the Commission's order.

It may enforce the Commission's order as affirmed and may "issue such writs as are ancillary to its jurisdic- tion or are necessary in its judgment to prevent injury to the public or to competitors pendente lite."

Ibid.

The Court does not-it could not--contend that these provisions lend the slightest support to its conclusion.

They clearly, emphatically, and pointedly contradict- it.

The courts of appeals have jurisdiction when and if, and only if and when, a Commission order has been entered and a petition for review is filed-not by the C6mmission but by the aggrieved person? 2 When a petition for re-

12 Indeed, there is no certainty that the particular court of appeals

selected by the FTC on its application for preliminary relief will ever undertake to review aih ultimate cease-and-desist order. Sec- tion 11 (c) of the Clayton Act, 15 U. S. C. § 21 (c), provides that a person against whom such an order is entered may appeal "in the court of appeals . . . for any circuit within which such Violation occurred or within which such person resides or carries on business."

In the present case, review of any final FTC order might lie not in the Court of Appeals for the Seventh Circuit, but in the Sixth or Eighth Circuit where both Dean and Bowman carry on business.

See Transamerica Corp. v. Board of .Governors, 206 F. 2d 163 (C. A. 3d Cir. 1953), cert. denied, 346 U. S. 901, setting aside an injunction issued by the Ninth Circuit; A. G. Spalding & Bros., Inc. v,. F. T: C., 301 F. 2d 585 (C. A. 3d Cir. 1962), enforcing an

FTC v. DEAN FOODS CO. 597

FORTAS, J., dissenting.

view is filed, the court of appeals has "'plenary" juris- diction, implemented by the self-contained all-writs pro- vision; and when the record- is filed, that jurisdiction is exclusive. Prior to the entry of the Commission's order, the courts of appeals simply" have no jurisdiction, exist- ing or potential. The general All Writs Act is limited It is ,to writs "in aid of their respective jurisdictions." not a charter to be used at the behest of an administra- tive agency in order to supply it with a weapon which Congress has withheld. This is clear enough; and noth- ing in our prior decisions expands the meaning of. the All Writs Act to cover the present situation.

The Court cites a number of cases to prove that an appeal need not have been perfected to call into play the power of the appellate courts to issue protective writs. This is clear and obvious as applied in those cases. Each of them involved issuance of a writ to pre- vent action or inaction by a trial court which would otheiwise mean that the case would not be adjudicated on its merits and therefore could not be reviewed on appeal. The typical case the issuance of mandamus to the trial court to compel it to proceed

In this cate- gory are the first three cases cited on the point by the Court.'

involves

3

The fourth case *cited by the Court clearly demon- strates the correct principle and the error of the Court's decision in the 'present case.

In Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943), the respondent .was

FTC order as to which an injuriction unsuccessfully had been sought in the First Circuit seven years earlier.

13 Ex parte Crane, 5 Pet. 190, 193; Ex parte Bradstreet, 7 Pet.

634;. McClellan v. Carland, 217 U. S. 268. From its excerpt from McClellan, the Court omits the italicized portion: "[A] writ of mandamus may issue in aid of the appellate jurisdiction which might otherwise be defeated by the unauthorized actiotn of the court below." 217 U..S., at 280.

626

FoRTAs, J., dissenting.

indicted for price fixing.

It filed a plea in abatement based upon an alleged fault in the authorization of the indictment. The District Court dismissed the plea. On application for a writ of mandamus, the Court of Appeals reversed, but this Court reversed the Court of Appeals because whatever might have been the merits of the Dis- trict Court's dismissal of the plea in abatement, that ris- missal did not defeat appellate jurisdiction. The District Court would proceed to adjudicate the merits of the case, and appellate jurisdiction would thereafter be available.

The Court.(per Chief Justice Stone) stated that "while-a functionf of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropri- ately be used merely as a substitute for the appeal pro- cedure prescribed by the statute."

Id., at 26. The Court said that "The traditional use of the writ ih aid of appellate jurisdiction . . . has been to confine an in-. ferior court to a lawful exercise of its prescribed juris- diction or to compel it to exercise its authority when it is its duty to do so." Ibid. Since the District Court was proceeding to adjudicate the case, and any error it might have committed would -come to the -appellate courts upon appeal, the Court held that the Court of Appeals erred in issuing the writ.

-These decisions, therefore, are far from supporting the Court's decision in the .present case. -They are to the precise contrary. They demonstrate the obvious mean- ing of the language of the All Writs Act: -that it is to be employed "in aid of" appellatejurisdiction-not to vest general restraining power in the courts of appeals, but to authorize them to overcome action or inaction which would prevent the case from proceeding to judgment and then to appellate review in the ordinary course. Noth- ing of the sort-nothing resembling it-appears in the present situation. The Commission may proceed with. its hearings, as provided by statute. As provided by

FTC v. DEAN FOODS CO.

.627

597

FORTAS, J.,; dissenting.

It may even-

statute, it may enter an order requiring respondents to divest themselves of the acquired assets. although I express no opinion on the issue-require action by the respondents, if they haye irretrievably disposed of some or all of the assets, to take additional action to make available assets, customers, etc., for purchase by others-so as to re-create a competitor, perhips even if such action involves disposition of nonacquired assets.14 And the appropriate court of appeals and this Court will have full, complete appellate jurisdiction with respect to its order.

The Court cites four of its prior decisions involving the availability of the All Writs Act in connection with ad- ministrative proceedings. These provide no assistance to it. First, it refers to Arrdio Transp. Co. v. Southern

R. Co., 372 U. S. 658. This case is precisely contra to the

Court's conclusion here. After a "brief and informal" hearing which led to a tentative conclusion that the increase was "unreasonable," the ICC suspended respond- ent's proposed rate increase and instituted a formal pro- ceeding to adjudicate the reasonableness of the increase.

The proceeding was still in progress when the maximum time provided by statute for suspension of the increase expired. Petitioner sued in the District Court, seeking an injunction pending the Commission's decision. This Court sustained denial of the injunction.

It held that the Commission's jurisdiction was exclusive of any power in the courts to grant the relief, and that Congress' action in vesting power in the Commission left no lati- tude for court action even though it might mean that the small shipper could not continue in business under the higher rate. MR. JUSTICE BRENNAN, speaking for

14 Compare United States v. Aluminum Co. of America, 247 F.

Supp. 308, 316 (D. C. E. D. Mo. 1965), aff'd, 382 U. S. 12, with Reynolds Metals Co. v. F. T. C., 114 U. S. App. D. C. 2, 309 F. 2d

223 (1962). See Duke, op. cit. supra, note 2.

FORTAS, J., dissenting.

the Court, observed, in words that are applicable here, that if the courts were to entertain petitioner's applica- tion for an injunction against the effectiveness of the rates pending Commission decision, they would in effect be prejudging the case and prejudicing administrative action. "[S]uch consideration," he said, "would create the hazard of forbidden judicial intrusion into the ad- ministrative domain."

Id., at 670. Correspondingly, I suggest that it is unlikely in the real world that if the Federal Trade Commission made representations to a court of appeals that a merger should be enjoined pend- ing Commission proceedings, and if the court issued such an injunction, the Commission's ultimate determination would be uninfluenced by these powerful factors.

respectfully suggest that this is not a tolerable result. 5 I come now to the case which the Court's opinion char- acterizes as "dispositive" of "this issue." Whitney Bank

v. New Orleans Bank, 379 U. S. 411.16

It is indeed a

'5 The Court's opinion today eschews the result in Arrow Trans- portation and fastens instead on footnote 22, 372 U. S., at 671, which merely reserves judgment as to "decisions which have recognized a limited judicial power.to preserve the court's jurisdiction br maintain the status juo by injunction pending review of an agency's action through the prescribed statutory channels .... "' The footnote adds that "fs]uch power has been deemed merely incidental to the courts' jurisdiction to review final agency action, and has never been recog- nized in derogation of such a clear congressional purpose to oust judicial power as that manifested- in the Interstate Commerce Act."

(Emphasis supplied.) The cases cited demonstrate the conventional use of the extraordinary writs referred to in the footnote.

In $cripps-Howard Radio, Inc. v. F. C. "C., 316 U. S. 4, a stay was issued ancillary to an appeal already taken pursuant to statute. Its purpose was to suspend, pending action by the court in which the appeal was lodged, changes authorized by completed agency action.

For the thoroughly conventional nature of Transamerica, also cited in the footnote, see note 1, supra'

'6 Continental Ill. Nat. Bank v. Chicago, R. I. & P. R. Co., 294 U., S. 648, 675, .cited by the Court in 'connection with its assertion

FTC v. DEAN FOODS CO. 597

FORTAS, J., dissenting.

square holding on an issue that is not anywhere near the problem of this case. Whitney holds that a court of appeals may enter such orders as will protect its jurisdiction-its jurisdiction having fully attached by a prior appeal from a final order of the Federal Reserve Board, in accordance with statute. Briefly-stated, the Federal Reserve Board had entered an order permitting a New Orleans bank to operate a subsidiary in Louisiana through a holding company. A petition to review that order was duly filed, pursuant to statute, in the Court of Appeals for the Fifth Circuit. While this was pending, Louisiana enacted a statute bearing on the problem.

Meanwhile, the Comptroller of the Currency indicated that he would issue a certificate to the new bank. Com- peting banks filed in the District Court for the District of Columbia an action for injunction against the Comp- troller. The injunction was granted and the Court of It Appeals for the District of Columbia Circuit affirmed. was the latter action that was before this Court, on cer- tiorari. This Court held that the District Court had no jurisdiction to pass on the merits of the controversy by enjoining the Comptroller; that exclusive jurisdiction as to the authorization of the new bank was vested in the Federal Reserve Board. But it stayed its mandate for 60 days to give the parties time to move in the Fifth Circuit for a remand to the Federal Reserve Board for reconsideration of its order in light of the subsequent Louisiana statute. On remand, the Court stated, "the Fifth Circuit's power to protect its jurisdiction is beyond question," id., at 426--this in a case which had been in the Court of Appeals for three years following final agency action.

that courts have power to preserve the status quo while administra- tive proceedings are ii progress, relates instead to the power of a bankruptcy court to enjoin the sale 'of collateral pledged by a debtor.

630

FORTAS, J., dissenting.

This is entirely in accord with the traditional and estab- lished construction of the All Writs Act, and with the statute governing proceedings of the Federal Reserve Board. Jurisdiction had properly been acquired by the Court of Appeals for the Fifth Circuit. Of course, it had power to issue whatever orders were necessary to preserve its jurisdiction, pending remand or otherwise.

The-Court's statement that it is "analogous" to the relief requested by the Commission is simply in error.

It is analogous only if we disregard the facts that in Whitney, a final order had been entered by the administrative agency, appeal taken and the jurisdiction of the Court of Appeals had attached. Whereas in the present case none of these has occurred and we are bluntly asked to vest the courts of appeals with authority to consider issuing an injunction as a matter of original jurisdiction- without an agency order, without an appeal, and without statutory jurisdiction.

The net of the matter is simply, plainly and clearly that the decision of the Court in this case is novel- totally novel.

It is in direct coitravention of the care- ful, specific plan and directions of the Congress-.with

It is in direct conflict with the purpose and office of the AH Writs Act.

It is totally unsupported by prior de- cisions of this Court and contrary to both Roche, supra, and Arrow Transportation, supra.- It is unwise in terms of the administration of § 7.'

It places an unwise, unjus- tified and disruptive burden on the courts of appeals and saddles them with original jurisdiction which they can- not properly exercise and a fact-finding function in elabo- rate, complex situations, which they should not be asked to undertake.

,"

The courts of appeals are not courts of original juris- diction. They have neither the facilities nor the institu- tional aptitude for determining in the first instance

FTC v. DEAN FOODS CO. 597

FORTAS, J., dissenting.

whether a particular merger should be halted. This is always intensely a question of fact-hotly controverted- turning upon factual-economic problems such as the ascertainment of facts as to the "line of commerce," the "section of the country" and the probable effect upon competition. And these are questions committed in the first instance to the FTC and not to the courts. See Wkitney Bank v. New Orleans Bank, supra, at 421.,

Without any findings of the Commission or a court, the courts of appeals are now burdened with the task of deciding these questions. The fact of the matter is that the Court's decision commands the courts of appeals to be trial courts for purposes of those § 7 cases which the Commission chooses to bring before them. I share the view expressed by my Brother BLACK and joined by my

"The business of trial courts is to try cases. That of appellate courts is to review the records of cases coming from trial courts below.

In myjudgment it is bad for appellate courts to be compelled to interrupt and delay their pressing appellate duties in order to hear and adjudicate cases which trial courts have been specially created to handle as a part of their daily work." United States v. Barnett, 376 U. S. 681, 724 (dissentingopinion).

Yet the responsibility today imposed upon appellate courts requires them to try cases. This is precisely what is required in determining whether a merger should be restrained during the years required to complete an FTC heafing on the merits.17 Frequently, perhaps gen- 17The Commission's estimate in the present case that its proceed- ings would endure for at least one year seems unprecedentedly opti- mistic.

In A., G. Spalding & Bros', InE. v. F. T". C., 301 F. 2d 585 (C. A. 3d Cir. 1962), where the FTC unsuccessfully sought an injunction pendente lite, more than seven years elapsed between complaint and enforcement. Pillsbury- Mills, Inc. (FTC Docket

FORTAS, J., dissenting.

erally, to enjoin a merger "temporarily" is equivalent to entering a final order. The financial and commercial commitments involved in an agreement to acquire or to merge are apt to be so restrictive of the managerial flexibility of the parties, and so dependent upon transient circumstances, that they cannot be maintained in limbo while an FTC proceeding wends its leisurely way toward a wearying conclusion. Because the result of the appli- cation for temporary relief may be conclusive for all time, there is a discernible and undeistandable tendency on the part of the parties to put in a full case. 8

Few § 7 cases are so simple that summary treatment is appropriate. See, e. g., United States v. Bethlehem Steel Corp., 157 F. Supp. 877, 879 (summary judgment denied), 168 F. Supp. 576 (D.' C. S. D. N. Y. 1958) (merger enjoined after full factual hearing). The risk involved in deciding an application for "preliminary" injunction on affidavits is so great that to invite it, as the Court here does, is to invite the administration of justice which. is rough and ready, to say the least. On the other hand, to impel the courts of appeals to take testimony in these cases is an anomaly that should not be tolerated.

No. 6000) was in the Commission for eight and one-half years; Crown Zellerbach Corp. v. F. T. C., 296 F. 2d 800 (C. A. 9th Cir.

1961), for nearly four years, and it was another four years before the Commission's order was affirmed. These delays were not un- known" to Congress. See Hearings before the Antitrust Subcom- mittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, p. 86 (1961).

1See United States v. Ingersoll-Rand Co., 218' F. Supp. 530 (D. C. W. D. Pa.), aff'd, 320 F. 2d 509 (C. A. 3d Cir. 1963), where the hearing on an application for. preliminary relief took five days.

See also United States v. FMC' Corp., 218 F. Sfpp. 817 (D. C. N. D.

Cal.), appeal dismissed, 321 F. 2d 534 (C. A. 9th'Cir.), appli- cation for preliminary injunction denied, 84 Sup. Ct. 4 (1963) (doldberg, J., in chambers).

FTC v. DEAN FOODS CO.

*597 FORTAS, J., dissenting.

This Court has recognized that there is no quick and easy, short and simple way to resolve the complexities of most antitrust litigation.

In White Motor Co. v.

United States, 372 U. S. 253, the Court reversed sum- mary judgment for the Government.

It held that sum- mary judgment was inappropriate and a trial should be had with respect to the Government's charge of il- legal vertical territorial limitations. It specifically relied upon the "analogy from the merger field that leads us to conclude that a trial should be had."

Id., at 263.

The Court said (per DOUGLAS, J.) that in cases "involv- ing the question whether a. particular merger will tend 'substantially to lessen competition' or.whether "the acquired company -was a- failing one," "a trial rather than the use of the summary judgment is normally necessary."

Id., at 264. See also United $tates v. Die- bold, Inc., 369 U. S. 654, where factual issues paralleling those in the present case were held unsuitable for summary judgment.

Similarly, in La Buy v. Howes Leather Co., 352

U. S. 249, this Court refused to permit reference of

antitrust cases to a master.

It held (per CLARK, J.) that "most litigation in the antitrust field is complex," and that this is "an impelling reason for trial before a regular, experienced trial judge" rather than a master.

Id., at 259.

By its decision today, however, this Court commands that these admittedly difficult, complex cases be heard and adjudicated by the courts of appeals on original applications for "temporary' injunctions. I.cannot rec- oncile this result with the facts, -with this Court's aware- n4ess of the complexity of the task, or with proper regard for the courts of appeals. Apart from the judicial prob- lem which this invention creates, we must recognize that the interposition of the courts, without congressional direction, at the threshold of the administrative process

634

FORTAs, J., dissenting.

..

is contrary to the congressional plan and the reiterated holdings of this Court. As the Court said in Arrow Transportation, supra, judicial "consideration," prior to final administrative adjudication, "would create the haz- ard of forbidden judicial intrusion into the administrative domain." 372" U. S., at 670. This Court's insistence upon the "primary jurisdiction" of administrative agen- cies illustrates its sensitivity to the point. The Court has even insisted that "Dismissal of antitrust suits, where an 4dministrative remedy has superseded the judicial one, is the usual course." Pan American World Airways v.

UnitedStates, 371 U. S. 296, 313, n. 19; see also :United.

States v. Western Pac. R. Co., 352 U. S. 59; Far East Conference v. United States, 342 U. S. 570; United States Nay. Co. v. Cunard S. S. Co., 284 U. S. 474.

The present case illustrates the profound difficulties that the Court .of Appeals will face in reaching a deci-- sion, within the practical limits of its available time and procedures as to whether it should issue a ', preliminary" injunction. There are here sharp factual disputes con- cerning the financial status of Bow-man and the avail- ability to. it of the so-called "failing company" defense.

There is a claim that Dean Foods is about to lose its largest customer and' that as a result the merged com- pany will be smaller than Bowman was beforie the merger. And the bona fides of the "interested" pros- pective purchaser uncovered by the Commission's staff is in dispute.

The Court of Appeals will have to make a judgment concerning these issues, . as -well as the other, complex factors that are determinative.

It will get little com- fort from the label of the relief sought as "preliminary" because it will know that the patient may die while the "temporary" anesthesia is in effect, And it il kow that, realistically, it has no control over the Ilength of the proceedings--whether the Commission's hearings will

FTC v. DEAN FOODS CO. 635 597

FORTAS, J., dissenting.

last a year or eight years, or something in between. By contrast, when the Department of Justice or a private person seeks a "preliminary" injunction in a district court, as provided by statute, the proceedings on the merits are in the same court. That court controls the proceedings, and it is admonished by the statute to pro- ceed "as soon as may be, to the hearing and determina- tion of the case." 15 U. S. C. § 25. This is an essential admonition, insisted upon by the Congress to mitigate the consequences of preliminary restraints imposed by the district courts upon effectuation of mergers. The courts of appeals will be in the unhappy position ,Qf either attempting to supervise Commission proceedings in the predictably vain effort to, secure &xpedition, or accepting the fact that the "preliminariness" of their .order is totally subject to the destructive delays char- acteristic of Commision procedures. See Kaysen & Turaer, Antitrust Policy 248-249" (1959).

In effect, today's decision represents radical surgery upon the administration of § 7 of the Clayton Act. This is done contrary to statute, without basis in law or precedent, and-is motivated by reasons, which while they may have superficial apieal, are unwise and disruptive.

In effect, the Court condones and encourages the Com- mission to turn aside from its designated function as an expert, administrative agency to become a prosecutor and litigant.

When the Commission was established in 1914, it was not intended to duplicate the functions of existing agen- cies, but rather to bring to bear 'on 'the problems of anti- trust and unfair competition the "specialized knowledge and expert judgment, continuity of experience and polit- ical independence, flexible proceddres and efficient fact- finding' methods--[hopef ully] characteristic of the ad- ministrative process." Elman, Rulemaking Procedures

636

Appendix to opinion of FORTAS, J., dissenting. 384 U. S.

in the FTC's Enforcement of the Merger Law, 78 Harv.

Every conceivable merger case involves the danger that the merger, unless enjoined, will be effectuated, and the incentive to the Commission tQ shop among the stat- utorily available courts of appeals and to seek "prelim- inary" injunctions will be great. This, I repeat, is a radical change from the pattern that Congress has or- dered, and one which is profoundly undesirable in its effects upon the parties, the courts of appeals, and upon the national interest in a careful assessment of mergers for the purpose of tolerating those which are permissible and liquidating those which violate the national policy expressed in § 7.

I would affirm the decision below.

The FTC first solicited the assistance of Congress in 1956. In January of that year it-submitted to the appro- priate committees of the Eighty-fourth Congress a staff study containing various legislative proposals. -The' study observed that "A very serious looihole in the Anti- merger Act [§ 7] is the lack of a provision which dnables" the Federal Trade Commission either to take action to prevent mergers prior to consummation or, after con- summation, to take action to preserve the status quo until completion of administrative proceedings before the Commission." 1

The study informed the committees that in 1955 the FTC had twice sought to secure preliminary injunctions from courts of appeals, but that the courts had found

IHearings before the Antitrust Subcommittee of the House Com- mittee on the Judiciary, 84th Cong., 2d Sess., ser. No. 15, p. 29 (1956).

FTC v. DEAN FOODS CO. 637 597

Appendix to opinion of FoRTAs, J., dissenting.

the Cjmmission

no basis in existing law to authorize such applications.2 In hearings conducted upon proposals of the FTC and others, through its then chairman, John W. Gwynne, urged Congress to enact legislation which would empower it in § 7 cases to apply to United States District Courts for preliminary relief.3 Chair- man Gwynne was pessimistic about the prospects for success under the all-writs statute, noting that it "is a very general statute and is designed to protect not the jurisdiction of the Federal Trade Commission but the jurisdiction of the circuit court of appeals to which the case might finally get." 4

Both Senate and House Judiciary Committees accepted the view, repeatedly stated by spokesmen for the FT.C,

2 The cases referred to were Federal Trade Comm'n v. Farm Journal, Inc. (C. A. 3d Cir. 1955) (unreported); and In te Matter of A. G. Spalding & Bros., Inc. (C. A. 1st Cir. 1955) (unreported).

They are discussed in H. R. Rep. No. 486, 85th Cong., 1st Sess., 8-9 (1957); Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary on S. 198,

S. 721, S. 722 and S. 3479, 85th Cong., 2d Sess., 42-45 (testimony

of FTC Chairman Gwynne), 156-157 (testimony of Congressman Celler) (1958).

3 The FTC proposed that § 11 of the Clayton Act be amended to

read: "Whenever the Federal Trade Comnission has reason "to believe-

"(1) That any corporation is acquiring, has acquired or is" about to acquire -the stock or assets of another corporation in violation of the provisions of section 7 of this Act, and

"(2) That the enjoining thereof pending the issuance-of a com- plaint by the Commission 'under this section 'and until such com- plaint 'is dismissed by the' Commission or set aside' by the court on review, would be to the interest of .the public, "the Commission ... may bring suit in a district court of the United States . . .to prevent and restrain violation of section 7 of this Act.

Upon proper showing a temporary injunction or restraining order ,shall be granted -without bond. . ." Hearings,- supra, note 1, at .

29-30.

638

Appendix to opinion of FORTA S, J., dissenting. 384 U.S.

that it lacked any authority to enjoin or seek a court order to enjoin mergers prior to an FTC. adjudication of their illegality, and that this gap in the Commission's arsenal was crippling its efforts to enforce § 7. Both Committees reported out H. R" 9424, which contained an amendment to § 15 of the Clayton Act authorizing the FTC to seek preliminary relief in the United States District Courts. S. Rep. No. 2817, 84th Cong., 2d Sess.

(1956); H. R. Rep. No. 1889, 84th Cong., 2d Sess.

(1956).- The bill passed the House, but failed of passage in the Senate.

Similar legislative proposals have been introduced m subsequent sessions, but always with less success than in 1956: In all of these legislative proceedings, the posi- tion of the FTC has been steadfast: consistently, it has insisted that without new legislation it lacks authority to enjoin mergers pending completion of agency action.

In March of 1957, FTC Chairman Gwynne informed the appropriate Committees of the decision in Federal Trade Comm'n v. International Paper Co., 241 F. 2d 372 (C. A. 2d Cir. 1956), that the all-writs statute would not support an FTC application for preliminary relief. To the House Committee he forwarded a copy of the opinion, describing it as "[e]ven more conclu- sive" than the earlier unreported decisions -of the 'Courts of Appeals for the First and Third Circuits.'

In the Senate, Chairman Gwynne -characterized his Commis- sion's application in Interkational Paper as "something of a forlorn hope." 7 When Senator Kefauver, the Com- mittee Chairman, asked him whether the FTC had sought

5 H. R. 9424, although worded in greater detail, was in substance like the FTC proposal.

6 Letter to Chairman Celler, in Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess., ser. No. 2, p. 103 (1957).

7 Hearings, supra, note 2, at 45.

FTC v. DEAN FOODS CO. 639 597

Appendix to opinion of FoRTAs, J., dissenting.

review of the decision in this Court, Chairman Gwynne

answered: "No, we did not. We talked that over. could not help but agree with the court, frankly! I think the remedy is to amend the law. . . ." The Senator re- plied, "I think you are right about it."8

Nor was Gwynne the only FTC spokesman to repre- sent to ,Congress that legislation was essential if the Commission, like the Department of Justice and private parties, was.to be able to maintain the status quo pend- ing determination of a merger's legality. The present chairman, Paul Rand Dixon, who as committee counsel had participated in Senate proceedings on this matter since 1956, informed the Eighty-seventh Congress that "It is clear that the Commission has no such authority," citing International Paper.' Leading Members of Congrcss 20 and key representatives of the Executive Branch" expressed the same view.

A third FTC Chairman, Earl Kintner, explained to the bar rather than directly to, Congress, that in 1960 the FTC had intervened as amicus 'curiae in a private suit to enjoin a merger,12 which suit paralleled a pending .

8 Ibid.

9 Hearings before the Antit-ust Subcommittee of the House Com- mittee on the Judiciary, 87th Cong., 1st Sess., ser. No. 5, pp. 87, 107 (1961).

It was in this session that the FTC abandoned its prior advocacy of proposals that it seek relief in the district courts, urging instead that it be given power to issue its own injunctions and restraining orders., Id., at 88, 91. Compare testimony of FTC Chairman Gwynne, Hearings, supra, note 2, at. 49-59.

10See, e. g., statement of- Congressman Celler, Hearings, supra, note 2, at 156-160; statement of Congressman Patman; Hearings, supra, note 9, at 45; statement of Senator Kefauver, id., at 46.

1, E. g., The President's Economic Report, submitted to CQngrdss on January 23, 1957, p. 51; Letter from Attorney General Kennedy, May 2, 1961, in Hearings, supra, note 9, at 58.

12 Briggs Mfg. Co. v. Crane Co., 185 F. Supp. 177, (D. C. E. D.

Mich.), aff'd, 280 F. 2d 747 (C. A. 6th Cir.. 1960).

640

Appendix to opinion of FORTAS, J., dissenting. 384 U.S.

•Coirnrdission inquiry. This was done, he said, because the FTC was "[1] acking any statutory, authority to seek a temporary injunction." Kintner, The Federal Trade Commission in 1960-Apologia Pro Vita Nostra, 1961 Antitrust Law-Symposium 21, 38. He noted that the FTC was pressing for legislative authorization, and that until the effort succeeded the FTC would be confined to intervention in occasional private suits and to reliance upon the Jjustice Department "where a temporary re- straining order is peculiarly appropriate."

Id., at 41.1"

's FTC Chairnin Dixon utilized the same forum the fellowing year to plead for legislation which would authorize the Cbmmission to issue its own temporary relief. See Dixon, The Federal Trade Commission in 1961, 1962 Antitrust Law-Synmposium 16, 19-21.