The question whether a valid order of the Federal Trade
Commission, directing one firm to cease and desist from engaging in
illegal price discrimination in violation of § 2 of the Clayton
Act, should go into effect before competing firms are similarly
restrained is for determination by the Commission; it should be
considered by a reviewing court only if raised before the
Commission; and a determination of it by the Commission should not
be overturned in the absence of a patent abuse of discretion. Pp.
355 U. S.
411-414.
238 F.2d 43 affirmed. 241 F.2d 37, judgment vacated and cause
remanded.
PER CURIAM.
The general question presented by these two cases is whether it
is within the scope of the reviewing authority of a Court of
Appeals to postpone the operation of a valid
Page 355 U. S. 412
cease and desist order of the Federal Trade Commission against a
single firm until similar orders have been entered against that
firm's competitors. In proceedings arising out of alleged
violations of the price discrimination provisions of the Clayton
Act, § 2, 38 Stat. 730, as amended by the Robinson-Patman Act, 49
Stat. 1526, 15 U.S.C. § 13, two Courts of Appeals reached opposed
results on this underlying issue. In order to resolve the conflict,
we granted certiorari, 353 U.S. 908; 353 U.S. 982.
In No. 77, petitioner (Moog Industries, Inc.) was found by the
Commission to have violated the Act and was ordered to cease and
desist from further violation. 51 F.T.C. 931. Petitioner sought
review in the United States Court of Appeals for the Eighth
Circuit. Upon affirmance of the order, 238 F.2d 43, petitioner
moved the court to hold the entry of judgment in abeyance on the
ground that petitioner would suffer serious financial loss if
prohibited from engaging in pricing practices open to its
competitors. The court denied the requested relief.
In No. 110, respondent (C. E. Niehoff & Co.) requested the
Commission to hold in abeyance the cease and desist order that had
been recommended by the hearing examiner on the ground that
respondent would have to go out of business if compelled to sell at
a uniform price while its competitors were not under similar
restraint. The Commission found that respondent had violated the
Act and, in issuing its order, denied respondent's request. 51
F.T.C. 1114, 1153. On review in the United States Court of Appeals
for the Seventh Circuit, the Commission's determination of
statutory violation was affirmed; however, the court (one judge
dissenting) directed that the cease and desist order should take
effect
"at such time in the future as the United States Court of
Appeals for the Seventh Circuit may direct,
sua sponte or
upon motion of the Federal Trade Commission."
241 F.2d 37, 43.
Page 355 U. S. 413
In view of the scope of administrative discretion that Congress
has given the Federal Trade Commission, it is ordinarily not for
courts to modify ancillary features of a valid Commission order.
This is but recognition of the fact that, in the shaping of its
remedies within the framework of regulatory legislation, an agency
is called upon to exercise its specialized, experienced judgment.
Thus, the decision as to whether or not an order against one firm
to cease and desist from engaging in illegal price discrimination
should go into effect before others are similarly prohibited
depends on a variety of factors peculiarly within the expert
understanding of the Commission. Only the Commission, for example,
is competent to make an initial determination as to whether and to
what extent there is a relevant "industry" within which the
particular respondent competes, and whether or not the nature of
that competition is such as to indicate identical treatment of the
entire industry by an enforcement agency. Moreover, although an
allegedly illegal practice may appear to be operative throughout an
industry, whether such appearances reflect fact, and whether all
firms in the industry should be dealt with in a single proceeding
or should receive individualized treatment, are questions that call
for discretionary determination by the administrative agency. It is
clearly within the special competence of the Commission to appraise
the adverse effect on competition that might result from postponing
a particular order prohibiting continued violations of the law.
Furthermore, the Commission alone is empowered to develop that
enforcement policy best calculated to achieve the ends contemplated
by Congress, and to allocate its available funds and personnel in
such a way as to execute its policy efficiently and
economically.
The question, then, of whether orders such as those before us
should be held in abeyance until the respondents' competitors are
proceeded against is for the Commission
Page 355 U. S. 414
to decide. If the question has not been raised before the
Commission, as was the situation in No. 77, a reviewing court
should not, in any event, entertain it. If the Commission has
decided the question, its discretionary determination should not be
overturned in the absence of a patent abuse of discretion.
Accordingly, the judgment in No. 77 is affirmed, and the judgment
in No. 110 is vacated and the cause remanded to the Court of
Appeals with directions to affirm the order of the Commission in
its entirety.
It is so ordered.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of these cases.
* Together with No. 110,
Federal Trade Commission v. C. E.
Niehoff & Co., on certiorari to the United States Court of
Appeals for the Seventh Circuit.