One natural gas company acquired nearly all of the stock of
another, and the Federal Government commenced an action in a
Federal District Court to have the acquisition of stock declared to
be in violation of § 7 of the Clayton Act and to require
divestiture. Shortly thereafter, the company which had acquired the
stock applied to the Federal Power Commission under § 7 of the
Natural Gas Act for authority to merge the assets of the two
companies. The Commission authorized the merger of assets while the
antitrust action was still pending in the District Court. The Court
of Appeals sustained the Commission's action.
Held: the Commission should not have proceeded to a
decision on the merits of the merger application when there was
pending in the courts a suit challenging the validity of that
transaction under the antitrust laws. It should have awaited the
decision of the courts. Pp.
369 U. S.
483-490.
111 U.S.App.D.C. 226, 296 F.2d 348, reversed.
Page 369 U. S. 483
Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
JUSTICE BRENNAN.
El Paso Natural Gas Company first acquired the stock of the
Pacific Northwest Pipeline Corp. and then applied to the Federal
Power Commission for authority to acquire the assets pursuant to §
7 of the Natural Gas Act, 52 Stat. 825, 15 U.S.C. § 717f(c). This
application was dated August 7, 1957. Prior thereto, on July 22,
1957, the Federal Government commenced an action against El Paso
and Pacific Northwest, alleging that El Paso's acquisition of the
stock of Pacific Northwest violated § 7 of the Clayton Act,
[
Footnote 1] 38 Stat. 731, as
amended, 64 Stat. 1125, 15 U.S.C. § 18. On September 30, 1957, El
Paso and Pacific Northwest filed a motion to dismiss the antitrust
suit or to stay it, pending completion of the proceedings before
the Commission. On October 21, 1957, that motion was denied after
hearing, and we denied certiorari. 355 U.S. 950.
Page 369 U. S. 484
In May and June, 1958, the Department of Justice wrote four
letters to the Commission, asking that the proceeding be stayed
pending the outcome of the antitrust suit. On July 29, 1958, the
Department of Justice was advised by the Commission that it would
not stay its proceedings. The Commission invited the Antitrust
Division of the Department to participate in the administrative
proceedings, but it did not do so.
The hearings before the Commission started September 17, 1958.
On October 2, 1958, El Paso and Pacific Northwest moved in the
District Court for a continuance of the antitrust suit. On October
6, 1958, the Department of Justice asked the Commission to postpone
its hearing, pending final outcome of the antitrust suit which had
then been set for trial November 17, 1958. On October 7, 1958, the
Commission wrote the District Court that, if the court denied El
Paso and Pacific Northwest's motion for a continuance and proceeded
with the antitrust trial, the Commission would continue its merger
hearings to a date that would not conflict with the trial date of
the antitrust case, but that if the court granted the motion for
continuance, the Commission would proceed with its hearing. On
October 13, 1958, the District Court continued the antitrust suit
until the final decision in the administrative proceedings. The
latter proceedings were concluded, the Commission authorizing the
merger on December 23, 1959. 22 F.P.C. 1091, 23 F.P.C. 350. The
merger was consummated December 31, 1959.
Petitioner intervened in the administrative proceedings August
27, 1957, and obtained review by the Court of Appeals, which
affirmed the Commission (111 U.S.App.D.C. 226, 296 F.2d 348), Judge
Fahy dissenting. We granted certiorari, 368 U.S. 810.
Evidence of antitrust violations is plainly relevant in merger
applications, for part of the content of "public convenience and
necessity" as used in § 7 of the Natural
Page 369 U. S. 485
Gas Act is found in the laws of the United States.
City of
Pittsburgh v. Federal Power Commission, 99 U.S.App.D.C. 113,
237 F.2d 741.
Immunity from the antitrust laws is not lightly implied. The
exemption of agricultural cooperatives from the antitrust laws
granted by § 6 of the Clayton Act and § 1 and § 2 of the
Capper-Volstead Act of 1922 became relevant in
Maryland and
Virginia Milk Producers Ass'n v. United States, 362 U.
S. 458. While § 7 of the Clayton Act gave immunity
to
"transactions duly consummated pursuant to authority given by .
. . the Secretary of Agriculture under any statutory provision
vesting such power in such . . . Secretary,"
we held that the only authority of the Secretary was to approve
"marketing agreements" (
id., 362 U. S.
469-470), and not other types of agreements or
restraints, typically covered by the antitrust laws. Accordingly,
we held that the District Court was authorized to direct the
cooperative to dispose as a unit of the assets of an independent
producer that had been acquired to stifle competition and restrain
trade. We could not assume that Congress, having granted only a
limited exemption from the antitrust laws, nonetheless granted an
overall inclusive one.
See United States v. Borden Co.,
308 U. S. 188,
308 U. S.
198-202. "When there are two acts upon the same subject,
the rule is to give effect to both if possible."
Id. at
308 U. S. 198.
Here, as in
United States v. RCA, 358 U.
S. 334, while "antitrust considerations" are relevant to
the issue of "public interest, convenience, and necessity"
(
id. at
358 U. S.
351), there is no "pervasive regulatory scheme"
(
ibid.) including the antitrust laws that has been
entrusted to the Commission.
And see National Broadcasting Co.
v. United States, 319 U. S. 190,
319 U. S. 223.
Under the Interstate Commerce Act, mergers of carriers that are
approved have an antitrust immunity, as § 5(11) of that Act
specifically provides that the carriers involved "shall be and they
are hereby relieved from the operation of the antitrust
Page 369 U. S. 486
laws. . . ."
See McLean Trucking Co. v. United States,
321 U. S. 67.
There is no comparable provision under the Natural Gas Act.
Section 7 of the Clayton Act -- which prohibits stock
acquisitions
"where in any line of commerce in any section of the country,
the effect of such acquisition may be substantially to lessen
competition, or to tend to create a monopoly"
-- contains a proviso that
"Nothing contained in this section shall apply to transactions
duly consummated pursuant to authority given by the . . . Federal
Power Commission . . . under any statutory provision vesting such
power in such Commission. . . ."
The words "transactions duly consummated pursuant to authority"
given the Commission "under any statutory provision vesting such
power" in it are plainly not a grant of power to adjudicate
antitrust issues. Congress made clear that, by this proviso in § 7
of the Clayton Act, ". . . it is not intended that . . . any . . .
agency" mentioned "shall be granted any authority or powers which
it does not already possess." S.Rep.No. 1775, 81st Cong., 2d Sess.,
p. 7. The Commission's standard, set forth in § 7 of the Natural
Gas Act, is that the acquisition, merger, etc., will serve the
"public convenience and necessity." If existing natural gas
companies violate the antitrust laws, the Commission is advised by
§ 20(a) to "transmit such evidence" to the Attorney General "who,
in his discretion, may institute the necessary criminal
proceedings." Other administrative agencies are authorized to
enforce § 7 of the Clayton Act when it comes to certain classes of
companies or persons, [
Footnote
2] but the Federal Power Commission is not included in the
list.
Page 369 U. S. 487
We do not decide whether in this case there were any violations
of the antitrust laws. We rule only on one select issue, and that
is: should the Commission proceed to a decision on the merits of a
merger application when there is pending in the courts a suit
challenging the validity of that transaction under the antitrust
laws? We think not. We think the Commission in those circumstances
should await the decision of the courts.
The Commission considered the interplay between § 7 of the
Clayton Act and § 7 of the Natural Gas Act, and said:
"Section 7 of the Clayton Act, under which the antitrust suit
was brought, prohibits the acquisition by one corporation of the
stock or assets of another corporation where 'the effect of such
acquisition may be substantially to lessen competition, or to tend
to create a monopoly.' Exempt, however, are transactions
consummated pursuant to Commission authority. This shows, reasons
the presiding examiner, that Congress placed reliance on the
Commission not to approve an acquisition of assets in violation of
the injunction of the Clayton Act unless, in the carefully
exercised judgment of the Commission, the acquisition would
nevertheless be in the public interest. What we are attempting to
arrive at is the public convenience and necessity. In reaching our
determination, we do not have authority to determine whether a
given transaction is in violation of the Clayton Act, but we are
required to consider the bearing
Page 369 U. S. 488
of the policy of the antitrust laws on the public convenience
and necessity.
City of Pittsburgh v. FPC, 237 F.2d 741,
754 (CADC). With the presiding examiner, we find that any lessening
of competition whether in the consumer markets or the producing
fields, does not prevent our approving the merger because there are
other factors which outweigh the elimination of Pacific as a
competitor. In any case, it appears that any lessening of
competition is not substantial."
22 F.P.C. 1091, 1095.
Apart from the fact that the Commission did undertake to make a
finding reserved to the courts by § 7 of the Clayton Act, [
Footnote 3] there are practical reasons
why it should have held its hand until the courts had acted.
One is that, if the Commission approves the transaction and the
courts in the antitrust suit later hold it to be illegal, an
unscrambling is necessary.
Maryland and Virginia Milk Producers
Ass'n v. United States, supra. Thus, a needless waste of time
and money may be involved. Also, these unscrambling processes often
raise complicated and perplexing problems on tax matters and
otherwise, as our recent decision in
United States v. du Pont
& Co., 353 U. S. 586,
366 U. S. 366 U.S.
316, shows. [
Footnote 4] Such
complexities
Page 369 U. S. 489
are inherent in the situation, as approval of the transaction by
the Commission would be no bar to the antitrust suit.
See
United States v. RCA, supra.
Another practical reason is that a transaction consummated under
the aegis of the Commission as being a matter of "public
convenience and necessity" is bound to carry momentum into the
antitrust suit. The very prospect of undoing what was done raises a
powerful influence in the antitrust litigation, as
United
States v. du Pont & Co., supra, illustrates.
The orderly procedure is for the Commission to await decision in
the antitrust suit before taking action.
Section 7 of the Clayton Act, so far as material here, prohibits
stock acquisitions having a prescribed effect. Section 7 of the
Natural Gas Act confers jurisdiction on the Commission over the
acquisition of assets of natural gas companies, [
Footnote 5] not over stock acquisitions in
them. Had the Commission stayed its hand, and had the courts found
the stock acquisition unlawful, the entire transaction would have
been set aside
in limine. Had the courts found the stock
acquisition lawful, presumably no problems under § 7 of the Clayton
Act would have remained.
Page 369 U. S. 490
When the Commission proceeds in the face of a pending but
undecided antitrust suit and approves a merger that has been
preceded, as this one was, by a stock acquisition, it in substance
treats the entire relation of the companies -- from the acquisition
of stock to the merger -- as an integrated transaction. If that
administrative action were approved, the Commission would be
allowed to do by indirection what it has no jurisdiction to do
directly.
It is not for us to say that the complementary legislative
policies reflected in § 7 of the Clayton Act, on the one hand, and
in § 7 of the Natural Gas Act, on the other, should be better
accommodated. Our function is to see that the policy entrusted to
the courts is not frustrated by an administrative agency. Where the
primary jurisdiction is in the agency, courts withhold action until
the agency has acted.
Texas & Pac. R. Co. v. Abilene Cotton
Oil Co., 204 U. S. 426. The
converse should also be true, lest the antitrust policy whose
enforcement Congress in this situation has entrusted to the courts
is, in practical effect, taken over by the Federal Power
Commission. Moreover, as noted, the Commission, in holding that
"any lessening of competition is not substantial," was in the
domain of the Clayton Act, a domain which is entrusted to the court
in which the antitrust suit was pending.
The judgment of the Court of Appeals is reversed, and the case
is remanded for proceedings in conformity with this opinion. It is
so ordered.
MR. JUSTICE FRANKFURTER took no part in the decision of this
case.
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
Page 369 U. S. 491
[
Footnote 1]
Section 7 of the Clayton Act provides in relevant part:
"No corporation engaged in commerce shall acquire, directly or
indirectly, the the whole or any part of the stock or other share
capital and no corporation subject to the jurisdiction of the
Federal Trade Commission shall acquire the whole or any part of the
assets of another corporation engaged also in commerce, where in
any line of commerce in any section of the country, the effect of
such acquisition may be substantially to lessen competition, or to
tend to create a monopoly."
"No corporation shall acquire, directly or indirectly, the whole
or any part of the stock or other share capital and no corporation
subject to the jurisdiction of the Federal Trade Commission shall
acquire the whole or any part of the assets of one or more
corporations engaged in commerce, where in any line of commerce in
any section of the country, the effect of such acquisition, of such
stocks or assets, or of the use of such stock by the voting or
granting of proxies or otherwise, may be substantially to lessen
competition, or to tend to create a monopoly."
[
Footnote 2]
Section 11 of the Clayton Act, 15 U.S.C. § 21, vests authority
to enforce compliance with § 7 by the persons subject thereto:
". . . in the Interstate Commerce Commission where applicable to
common carriers subject to the Interstate Commerce Act, as amended;
in the Federal Communications Commission where applicable to common
carriers engaged in wire or radio communication or radio
transmission of energy; in the Civil Aeronautics Board where
applicable to air carriers and foreign air carriers subject to the
Civil Aeronautics Act of 1938; in the Federal Reserve Board where
applicable to banks, banking associations, and trust companies; and
in the Federal Trade Commission where applicable to all other
character of commerce to be exercised as follows: . . ."
[
Footnote 3]
Where "the effect of such acquisition may be substantially to
lessen competition." Section 7,
supra, note 1
[
Footnote 4]
In that case, which also was under § 7 of the Clayton Act, we
said:
"Section 7 is designed to arrest in its incipiency not only the
substantial lessening of competition from the acquisition by one
corporation of the whole or any part of the stock of a competing
corporation, but also to arrest in their incipiency restraints or
monopolies in a relevant market which, as a reasonable probability,
appear at the time of suit likely to result from the acquisition by
one corporation of all or any part of the stock of any other
corporation."
353 U.S. at
353 U. S. 589.
As to the remedy, we stated in
United States v. du Pont &
Co., 366 U.S. at
366 U. S.
334:
"We think the public is entitled to the surer, cleaner remedy of
divestiture. The same result would follow even if we were in doubt.
For it is well settled that, once the Government has successfully
borne the considerable burden of establishing a violation of law,
all doubts as to the remedy are to be resolved in its favor."
[
Footnote 5]
Section 7(c) provides in relevant part:
"No natural gas company or person which will be a natural gas
company upon completion of any proposed construction or extension
shall engage in the transportation or sale of natural gas, subject
to the jurisdiction of the Commission, or undertake the
construction or extension of any facilities therefor, or acquire or
operate any such facilities or extensions thereof, unless there is
no force with respect to such natural gas company a certificate of
public convenience and necessity issued by the Commission
authorizing such acts or operations."
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
In this case originating in the Federal Power Commission, the
Court today announces a new and surprising antitrust procedural
rule: if the Commission is asked to
"proceed to a decision on the merits of a merger application
when there is pending in the courts a suit challenging the validity
of that [merger and its antecedent] transaction[s] under the
antitrust laws,"
the Commission must abstain from a determination and "await
decision in the antitrust suit before taking action."
(
Ante, pp.
369 U. S. 487,
369 U. S.
489.)
The holding does not turn on any facts or circumstances which
may be said to be peculiar to this particular case. It is not
limited to Federal Power Commission proceedings. Without adverting
to any legal principle or statute to support its decision, the
Court appears to lay down a pervasive rule, born solely of its own
abstract notions of what "orderly procedure" requires, that
seemingly will henceforth govern every agency action involving
matters with respect to which the antitrust laws are applicable and
antitrust litigation is then pending in the courts.
I cannot subscribe to a decision which broadly works such havoc
with the proper relationship between the administrative and
judicial functions in matters of this kind. The decision, on the
one hand, in effect transfers to the Antitrust Division of the
Department of Justice regulatory functions entrusted to
administrative agencies, and, on the other hand, deprives the
courts in government antitrust litigation of the authority given
them by statute to determine whether or not interlocutory relief is
necessary or appropriate. What this new rule entails is illustrated
by this case: a business transaction of great magnitude and
importance, which the Federal Power
Page 369 U. S. 492
Commission has found to be in the public interest, is at least
for the time being, set for naught without the slightest inquiry
into whether the antitrust charges leveled against it are weighty
or not. The Court's action is the more unusual because it is taken
(1) despite the antitrust court's denial of interlocutory relief
when such relief was belatedly sought by the Government; (2) in the
face of the considered judgment of the Solicitor General,
representing the public interests respectively involved in the
administrative and antitrust proceedings, that determination of the
ultimate effect of the Commission's order should be left to abide
the event of the antitrust case, and that, meanwhile, such order
should be allowed to stand; and (3) at the instance only of an
intervenor in the Commission's proceeding which was not even a
party to the Government's antitrust suit.
The undiscriminating nature and reach of this decision become
apparent when attention is focused on the procedural events
occurring prior to the order of the Commission which is here under
attack. On July 22, 1957, the Department of Justice instituted a
civil action in the United States District Court in Utah against
the El Paso Natural Gas Company and the Pacific Northwest Pipeline
Company, seeking to restrain an alleged violation of § 7 of the
Clayton Act. This violation was said to have occurred when,
beginning in January, 1957, El Paso embarked on a program of
acquiring nearly all of Pacific's outstanding common stock. The
complaint asked that the purchase be declared to be a violation of
§ 7 of the Clayton Act, and that El Paso be directed to divest
itself of Pacific's stock. No interlocutory relief appears to have
been requested.
On August 7, 1957, El Paso filed with the Federal Power
Commission its application for authorization to merge Pacific's
assets with its own. Despite this announced intention further to
intermingle the affairs of the two corporations,
Page 369 U. S. 493
the Government did not seek temporary relief from the District
Court in Utah. El Paso, on the other hand, contended that "primary
jurisdiction" with regard to the merger resided with the
Commission, and sought to have the antitrust action stayed. Its
motion was denied by the District Court, and on March 3, 1958, we
denied leave to file a petition for common law certiorari to that
decision. 355 U.S. 950.
When the case was returned to the District Court, the Government
again made no effort to obtain from that court an order maintaining
the
status quo pending the outcome of the suit. Instead,
the Assistant Attorney General in charge of the Antitrust Division
suggested to the Commission that it stay its own proceedings until
the antitrust suit had terminated. When this request was rejected
by the Commission, the Antitrust Division withdrew from the
Commission proceedings despite an express invitation from the
Commission that it participate.
Hearings before the Commission's examiner were scheduled to
begin on September 17, 1958, and the trial of the antitrust suit in
the District Court was set for November 17, 1958. At a hearing on
several pretrial matters held in the District Court on September 5
and 6, the Government, for the first time, moved for a temporary
injunction to restrain the asset merger even if the Commission's
approval were forthcoming. [
Footnote
2/1] That motion was denied, and not renewed thereafter. The
Commission's hearings began on September 17, and were recessed on
September 26 until November 12.
El Paso again moved in the District Court for a continuance of
the antitrust trial until after the Commission had passed on the
merger application, and the Government
Page 369 U. S. 494
once more asked the Commission to stay its proceedings pending
the outcome of the antitrust case. While noting that the Government
had refused the Commission's invitation to intervene in the merger
proceedings, the Commission agreed to defer to the District Court.
It notified the court that if El Paso's motion for a continuance of
the trial were denied, the Commission would continue its merger
proceeding to a later date. On October 13, 1958, the District Court
issued an order granting El Paso's motion, and continued the
antitrust trial "until the final determination by the Federal Power
Commission of the applications now pending before it." The
Government has never sought to review this order by mandamus or by
any other available means. The Commission subsequently held its
hearings and authorized the merger of El Paso and Pacific in an
order dated December 23, 1959. It is that order which the Court
today in effect holds to have been entered without
jurisdiction.
The Court relies on three "practical reasons" to support its
perplexing conclusion that, despite the Government's failure
promptly to seek relief
pendente lite in the antitrust
suit, its failure to press for review of the denial of such relief
when belatedly sought and the Commission's expressed willingness to
defer to the antitrust court, the Commission was nonetheless
required to withhold approval of the merger application: (1) If the
asset merger were approved and executed, and the stock purchase
thereafter held to be illegal, an "unscrambling" involving
"needless waste of time and money" would be necessary; (2) such an
"unscrambling" would "raise complicated and perplexing problems on
tax matters and otherwise"; (3) the Commission's approval of the
asset merger "is bound to carry momentum into the antitrust suit."
(
Ante,pp.
369 U. S.
488-489). Whatever weight these considerations may be
deemed to have, I think that "orderly procedure"
Page 369 U. S. 495
required their determination, at least in the first instance, by
the antitrust court, if indeed they were not rejected by the
District Court on the Government's 1958 motion to enjoin
consummation of the merger. Their consideration by this Court as an
original matter is entirely inappropriate, and in no event do any
of them affect the validity of the Commission's order approving the
merger. [
Footnote 2/2]
I
Section 15 of the Clayton Act, 15 U.S.C. § 25, grants
jurisdiction to the United States District Courts "to prevent and
restrain violations" of the Clayton Act, and empowers the United
States Attorneys "to institute proceedings in equity to prevent and
restrain such violations." The same statutory section provides
that, pending determination of the merits of a complaint filed by
the United States
"and before final decree, the court may at any time make such
temporary restraining order or prohibition as shall be deemed just
in the premises."
Consequently, it is the duty of the District Court before which
an antitrust suit is pending to pass on the desirability of
temporary relief in order to avoid later problems of
"unscrambling." In the case before us, it was not until more than a
year after the Government knew of El Paso's intention to merge
Pacific's assets with its own that it requested the District Court
to enjoin the execution of
Page 369 U. S. 496
this plan. The court's denial of the temporary injunction must
be presumed to have been based on its evaluation of the likelihood
of success of the antitrust suit and of the difficulties that might
arise if interlocutory relief were denied. Not having renewed its
motion, the Government may surely not revive it indirectly by
attacking the Commission's order. Moreover, by what authority is
petitioner, the State of California, an intervenor only in the
Commission's proceedings, empowered to assert claims relating to
the enforcement of the antitrust laws that are unavailable to the
Government, the plaintiff in the antitrust action?
II
Similarly, whatever is meant by the suggestion that the
Commission's approval carries "momentum" into the antitrust suit,
this factor is one that should be remedied, if necessary, by
purging the antitrust proceedings of any improper influence
deriving from the agency determination, not by invalidating the
administrative action. The Court's holding -- which is unnecessary
to a decision of this case and, as the Government argues, also
premature [
Footnote 2/3] -- that
the concluding proviso of § 7 of the Clayton Act gives the
Commission's approval of this asset merger no immunizing effect
against the antitrust claim, surely lends added support to the view
that the agency is permitted to consider this application as it
might consider any other which suggests no difficulties under the
antitrust laws. If the Commission's approval is irrelevant to the
merits of the Government's
Page 369 U. S. 497
antitrust suit, it is the court considering the antitrust claim
which should guard itself against giving weight to this
irrelevancy, not the Commission passing on the merger application.
And if the lower courts should ultimately go wrong in this regard,
their error would be correctible in this Court.
Likewise, there is little substance to the difficulty which this
Court finds in a court "undoing what was done" (
ante, p.
369 U. S. 489)
by the Commission. Had the antitrust trial court been fearful on
that score, it could have entered an appropriate interlocutory
order ensuring that nothing would be done while the litigation was
pending.
III
Finally, I do not think that the record in this case justifies a
conclusion that the Commission's refusal to postpone consideration
of the merger application amounted to an abuse of discretion. On
the Court's premise that the agency's approval did not immunize the
transaction from antitrust liability, the Commission's action in
granting the certificate of public convenience and necessity did no
more than
permit the merger to be consummated subject to
all possible antitrust infirmities. And, even proceeding on the
Commission's premise that the proviso of § 7 of the Clayton Act
gives it the power to immunize mergers from antitrust liability,
its decision to go ahead after being notified by the District Court
that the motion to continue the antitrust suit had been granted
could hardly be regarded as an abuse of discretion.
In conclusion, the Court's decision in this case creates a
wholly artificial imbalance between antitrust law enforcement and
administrative regulation with respect to federally regulated
industries. By displacing the continuing supervision of a court
over such interlocutory
Page 369 U. S. 498
terms as are "just in the premises" with an absolute rule
prohibiting the regulating agency from considering applications
relating to matters which are also involved in a pending antitrust
suit, this decision seems to leave no room for sensible
accommodation of the two sets of interests in a given instance.
Neither the inflexible rule announced by the Court nor its decision
on the facts of this case is supported by reason or authority.
I would affirm.
[
Footnote 2/1]
The fact that such a motion was made and denied does not appear
in the record before this Court. However, it is asserted in El
Paso's brief, and is not denied by any of the other parties.
[
Footnote 2/2]
Because of the posture of this case, I would not reach the
question as to what weight should be given to the pendency of
administrative merger proceedings by an antitrust court which is
asked to grant interlocutory relief. However, I think more can be
said than the Court does in favor of staying the hand of an
antitrust court pending consideration by the appropriate agency of
matters touching on
"those areas . . . in which active regulation has been found
necessary to compensate for the inability of competition to provide
adequate regulation."
Federal Communications Comm'n v. RCA Communications,
Inc., 346 U. S. 86,
346 U. S.
92.
[
Footnote 2/3]
Whatever may be the impact on a § 7 action of the Commission's
approval of this merger, it can be felt only in the antitrust suit.
Consequently, I would, as the Solicitor General has suggested,
leave this issue open for consideration in the District Court
should be agency's order be asserted as a defense in that
action.