285 F.

2d 607

UNITED STATES of America, Appellant,

v.
ST. REGIS PAPER CO., Appellee.
No. 16.
Docket 26413.

United States Court of Appeals Second Circuit.

Argued September 30, 1960.
Decided December 16, 1960.

Richard H. Stern, Washington, D. C. (Robert A. Bicks, Asst. Atty. Gen.,

Richard A. Solomon, Washington, D. C., S. Hazard Gillespie, Jr., U. S.
Atty., Southern Dist. of New York, New York City, Daniel J. McCauley,
Jr., Gen. Counsel, Federal Trade Commission, Alan B. Hobbes, Asst.
Gen. Counsel, Federal Trade Commission, J. B. Truly, Atty., Federal
Trade Commission, Washington, D. C., on the brief), for appellant.
Horace R. Lamb, New York City (H. Richard Wachtel, Douglas W.
Hawes, LeBoeuf, Lamb & Leiby, New York City, on the brief), for
appellee.
Before LUMBARD, Chief Judge, and TUTTLE* and FRIENDLY, Circuit
Judges.
LUMBARD, Chief Judge.

These are appeals from a judgment of the United States District Court for the
Southern District of New York, Ryan, J., in which the court partially enforced
nine orders issued by the Federal Trade Commission against the St. Regis Paper
Company and seven of its subsidiary corporations directing that special reports
be filed and dismissed a claim for statutory penalties brought by the United
States against St. Regis. By resolution of January 6, 1959, the Federal Trade
Commission instituted an investigation into the acquisition by St. Regis of the
stock and/or assets of other corporations engaged in interstate commerce in
order to determine whether 7 of the Clayton Act, 15 U.S.C.A. 18, had been

violated. On January 9, 1959, the Commission issued orders to St. Regis in

New York City and five of its wholly-owned corporations located in various
parts of the country.1 These orders allowed the addressees thirty days to
respond in writing in a "special report" to questions posed by the Commission
and demands for copies of agreements, correspondence, office memoranda,
annual reports, schedules, minutes of meetings, accountants' reports, and
statistical summaries. St. Regis' motion to vacate the resolution and orders was
denied by the Commission on May 6, 1959, and compliance ordered by May
28. On June 4, 1959, the Commission resolved to broaden its investigation to
cover the acquisition of two other corporations2 by St. Regis. Orders dated June
8, 1959 allowed St. Regis and the two subsidiaries thirty days to file special
reports similar in content to those requested by the earlier directives.
2

Upon deciding that the material submitted to it did not meet its demands, the
Commission filed notices of default against St. Regis and its subsidiaries on
June 18 and July 22. The United States then brought suit in the Southern
District of New York under 9 of the Federal Trade Commission Act, 15
U.S.C.A. 49, asking that a mandatory injunction issue commanding the
corporations to file the special reports as requested and that the statutory
penalties provided for by 10 be assessed at the rate of $200 per day against St.
Regis for its failure to respond to the two orders directed to it. The defendant's
motion to strike the second demand on the ground that such relief would be
unconstitutional was denied, D.C.S.D.N.Y.1959, 24 F.R.D. 366, and the case
went to trial in the district court on both counts. Judge Ryan held that the
Commission had the authority under 6(b) of the Federal Trade Commission
Act, 15 U.S.C.A. 46(b), to order special reports in connection with precomplaint investigations of possible violations of the Clayton Act, 7; that
some of the questions posed by the Commission were so vague and uncertain as
to be unenforceable; and that the statutory forfeiture could not be invoked to
penalize non-compliance with orders which are partially defective. D.C.S.D.
N.Y.1960, 181 F.Supp. 862. The judgment below therefore modified the terms
of the original orders insofar as it directed the defendant and its subsidiaries to
reply only to those questions held enforceable and dismissed the second count
of the government's complaint. The United States appeals from the dismissal,
and St. Regis cross-appeals from the part of the judgment granting injunctive
relief.

I.
3

Were we to accept literally the language of 2 of the Expediting Act, 49

U.S.C.A. 45,3 we would be required to dismiss these appeals although both
parties urge us to hear them. That statute, as amended, provides in terms that in

"every civil action" which the United States brings as a plaintiff in the district
courts under the Sherman Act, 15 U.S. C.A. 1-7, 15 note, Interstate
Commerce Act, 49 U.S.C.A. 1 et seq., or "any other Acts having a like
purpose" thereafter enacted, appeals from final judgments are to "lie only to the
Supreme Court." Both of the instant appeals are from a judgment entered in a
civil suit instituted by the United States against various corporations under a
statute which contains provisions similar in purpose to those of the Sherman
Act.4 However, we have construed the language of the statute, which as a result
of an amendment of 1948 (62 Stat. 989) relates to "every civil action" instead of
to "every suit in equity," as including only suits akin to actions in equity. United
States v. New York, N. H. & H. R. R., 2 Cir., 1959, 276 F.2d 525, 543. The
statutory penalty sought by the United States in its appeal is, indeed, not at all
similar to equitable relief. However, this fact alone is not decisive of the
question before us. Since the heart of the issue being litigated is the scope of
authority delegated to the Commission by Congress, the request for a forfeiture
is but auxiliary to the demand for compliance. Thus, even if we were inclined
to allow an appeal from one part of a judgment if an appeal from another part of
the same judgment would properly lie only to the Supreme Court, we would not
consider alone the appeal of the United States in this case. The unseverability
of the issues to be decided requires that they all be determined in one action by
the tribunal which is to pass on the basic question presented.
4

Nonetheless, we feel that a reasonable construction of the Expediting Act grants

this court jurisdiction over appeals such as the one now before us. The writ of
mandamus authorized by 9 is, it is true, very much like a mandatory
injunction, cf. Miguel v. McCarl, 1934, 291 U.S. 442, 452, 54 S.Ct. 465, 78
L.Ed. 901, particularly since it is addressed not to some public official or body
but to a private corporation.5 But it would be unreasonable to hold that the type
of relief sought here by the Commission or the kind of determination which is
to be made on such petitions for mandamus were deemed important enough by
Congress to require a clear path from the district court to the Supreme Court of
the United States.

Under 15 U.S.C.A. 45 as it stood before being amended in 1938, 52 Stat. 111,

the Federal Trade Commission, to make its order final, was required to bring
enforcement proceedings in the Court of Appeals upon learning that the order
had been violated, and until 1959 all cease-and-desist orders issued by
administrative agencies pursuant to 11 of the Clayton Act, 15 U.S.C.A. 21,
had to be enforced in the same way. See 73 Stat. 243 (1959). Appeals from
cease-and-desist orders of the Commission under 15 U.S.C.A. 21(g), 45(g)
are still taken to the Court of Appeals. Thus, were we to hold that the
mandamus provision of 9 brings actions for the enforcement of preliminary

requests for information within 2 of the Expediting Act, we would be

conceding greater significance to the early investigatory stages of a Clayton Act
proceeding than to the final determination of the enforcing agency.
Furthermore, it is only because the Federal Trade Commission Act delegates to
the Attorney General, rather than to the Commission, the authority to seek
mandamus for compliance with the Commission's orders that the conditions of
the Expediting Act, which requires that the United States be plaintiff, is met in
this case. The analogue to this provision appeared, as well, in the Interstate
Commerce Act of 1887, 20(9), now 49 U.S.C.A. 20(9). That 2 of the
Expediting Act has not been interpreted to cover these mandamus suits is
indicated by United States v. Munson S. S. Line, D.C.Md.1929, 33 F.2d 211,
affirmed 4 Cir., 1930, 37 F.2d 681, affirmed 1931, 283 U.S. 43, 51 S.Ct. 360,
75 L.Ed. 830, in which a suit by the Attorney General under 20(9) was heard
first in the district court, then appealed to the Circuit Court of Appeals for the
Fourth Circuit, and finally heard on certiorari in the Supreme Court with no
discussion whatsoever of the jurisdictional question. In light of the policy
objectives of the Expediting Act, we conclude that these proceedings were not
to be brought into the class of those entitled to accelerated review merely
because the Attorney General had the sole authority to seek their enforcement.
Accordingly, we hold that these appeals are properly before this court.
II.
6

The information requested by the Commission was to be submitted in "special

reports" pursuant to 6(b) of the Federal Trade Commission Act, 15 U.S. C.A.
46(b), which is set forth in the margin. 6 St. Regis contends that the
Commission's authority to require special reports under 6(b) does not extend
to antitrust investigations but is limited to discovery of unfair competitive
practices under 5 of the Act and violations of court or agency decrees entered
under that section.

In United States v. Morton Salt Co., 1950, 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed.
401, the Supreme Court upheld a Commission order requiring corporations to
file reports showing how they had complied with an earlier order of the
Commission. The respondent corporation in that case contended that 6(b)
could be used only in aid of the Commission's power to compile information
for general economic surveys under 6(a) and 6(f) and was independent of
the enforcement procedures set forth in 5. The court rejected this contention
and held that 6 could be used for "any purpose within the duties of the
Commission, including a 5 proceeding." 338 U.S. at page 649, 70 S.Ct. at
page 367. Since 5 "minimally * * * registers violations of the Clayton and
Sherman Acts," Times-Picayune Publishing Co. v. United States, 1953, 345

U.S. 594, 609, 73 S.Ct. 872, 880, the 6 powers are available to the
Commission in precomplaint antitrust proceedings as well.
8

The respondents here maintain, however, that the statement in Morton Salt,
insofar as it authorizes antitrust investigations, should be read as referring to
6(c), (d), and (e) which explicitly delegate to the Federal Trade Commission the
following duties: at the behest of the Attorney General to investigate
compliance with antitrust decrees; upon the direction of the President or either
House of Congress to investigate alleged violations of the antitrust acts; and
upon application by the Attorney General to recommend readjustments in the
business of any corporation alleged to be violating the antitrust acts. These
investigations, when carried out by the use of the usual discovery tools
provided for in 9, it is argued, constitute the limit of the Commission's
authority with regard to the antitrust acts. The legislative history of the statute,
as well as reasonable statutory construction, belie these contentions.

It is clear from the House and Senate reports that the purpose of 6 was to give
the Commission the powers with respect to investigating and reporting on
antitrust matters that were previously committed to the Bureau of Corporations
in the Department of Commerce. In the form first passed by the House7 3 of
the Act expressly transferred these functions, and 9 required corporations of a
minimum size to furnish annual and special reports and such information,
statements, and records relating to organization, financial condition, and
relation to other corporations as the Commission would require. Section 16
then gave the Commission subpoena powers identical to those given to the
Interstate Commerce Commission by the Act of 1887. The report
accompanying the Committee draft of the bill, H.R.Rep. No. 533, 63d Cong.,
2d Sess. (1914), said that while the investigative powers which had been given
to the Bureau of Corporations had been extensive, "there was a failure
specifically to require the regular gathering of certain most important kinds of
information through the medium of annual reports from industrial corporations
engaged in interstate commerce." Id. at 2. The report requirement, together with
a $100-a-day penalty for default, was therefore incorporated into the then 9.
The Senate, in proposing an entirely new draft,8 authorized the Commission in
its 3(b) to require corporations to furnish information and records concerning
their business and their relations to other corporations and to produce for
examination all papers relating to the commerce in which the corporations
under inquiry were engaged. In addition, 3(c) authorized the Commission to
require annual and special reports, and 8 gave it the investigative powers
possessed by the Interstate Commerce Commission. These powers of
investigation were said to be "not greatly in excess of those possessed and for
years exercised by the Bureau of Corporations." S.Rep. No. 597, 63d Cong., 2d

Sess. 12 (1914). Thus, both versions agreed in giving the Commission power to
investigate by requiring annual and special reports as well as by ordering
records to be produced.
10

In conference, however, these powers were merged into 6(a) and 6(b), and
the subpoena power was spelled out in 9.
The House conferees' report said:

11

"The Bureau of Corporations is abolished, as in the House Bill, and its powers
are conferred on the Commission. Instead of transferring them by reference to
the original act creating the bureau, as in section 3 of the House Bill, they are
explicitly set out in section 6, paragraph (a), of the bill as agreed to by the
conferees. This has been done because the bill now gives to the Commission
certain powers which so continuously and directly concern the business
interests of the country that it is desirable to have the law show on its face its
exact extent and application." H.R.Rep. No. 1142, 63d Cong., 2d Sess. 18
(1914).

12

The report manifests quite clearly Congress' intent to have the Commission
assume the powers of the Bureau of Corporations and its expression of that
intent in 6(a) and 6(b).

13

Moreover, there is no indication in the statute that antitrust investigations are in

any way distinguishable procedurally from investigations directed at
uncovering violations of the unfair-competition aspect of 5. The detailed
enumeration of duties in 6(c), (d) and (e) neither expressly nor impliedly
denies the Commission the power to proceed upon the request of the Attorney
General, President, or Congress by use of the powers granted by 6(b); the
inclusion of all these provisions within one section of the statute suggests the
contrary. And if the Commission may investigate charges of antitrust violations
filed by Congress or the President by directing that annual or special reports be
filed, it would be anomalous to deny it the use of these same techniques when it
is exercising its own obligation under 11 of the Clayton Act to police
violations of 7. We therefore hold that the Commission is empowered under
6(b) to require reports with respect to investigations into possible violations of
the antitrust laws.

14

No challenge has been made by the appellants to the scope of the Commission's
order, so we do not now undertake to decide whether 6(b) and 9 provide
alternative routes or whether only material which cannot be reached by the

subpoena power of 9 may be demanded in a 6(b) order.

III.
15

Among other papers which the Commission directed be produced by St. Regis
and its affiliates were copies of various schedules submitted to the Bureau of
Census for the 1954 and 1958 Census of Manufactures, the 1955, 1956, and
1957 Surveys of Manufactures, and correspondence relating thereto. The
respondents did not contend that copies were not available but maintained
instead that ordering their production violated the confidentiality provision of
9 of the Census Act, 13 U.S.C. 9.9 However, the plain terms of that statute
apply only to the Department of Commerce and do not bar any other federal
agency from divulging such information if it comes from different sources or
from demanding that a copy remaining in the respondent's files be produced.
The purpose of the prohibition addressed to the Secretary of Commerce and his
staff in the Census Act is served if they are denied the power to transmit
submitted information to other governmental agencies or to individuals. But
there is no reason to protect absolutely the underlying data or to insulate the
source of the information from any further inquiry. The manufacturer is under
no statutory obligation to hold a copy of his submitted schedule in his files; if
he chooses in this way to keep a summary of information which is scattered
throughout his records, the particular paper on which the data is collected is no
more immune from ordinary discovery procedures than any other document in
his possession. Although the Census Bureau printed across the bottom of the
copy page, "Keep This Copy For Your Files," there was, in fact, no obligation
on the respondents to do so. Clearly the Census Bureau's action cannot confer
any immunity on such records through gratuitous suggestion. We agree with the
district court that the protection afforded income tax returns under 6103 of the
Internal Revenue Code of 1954, 26 U.S. C.A. 6103, presents a close analogy.
The originals of such returns are confidential, but copies retained in the
taxpayer's files are subject to subpoena. E. g., United States v. O'Mara,
D.C.D.C. 1954, 122 F.Supp. 399. We disagree with the Seventh Circuit's
decision regarding this same issue in F. T. C. v. Dilger, 7 Cir., 1960, 276 F.2d
739, certiorari denied 81 S.Ct. 171.

IV.
16

We turn now to the question whether, under the circumstances, the statute
required the district judge to assess a penalty of $100 against St. Regis for each
day on which it was in default in filing the requested reports. The district court
decided that although the Commission had the power to issue the orders, some
of the questions propounded and requests made were too vague to be enforced.

Finding authorization to modify enforcement of the orders in 6(c) of the

Administrative Procedure Act, 5 U.S.C.A. 1005(c), Judge Ryan directed that
only the enforceable questions be answered. Cf. N. L. R. B. v. Anchor Rome
Mills, Inc., 5 Cir., 1952, 197 F.2d 447. He held, however, that the forfeiture
provided in 10 of the Federal Trade Commission Act was "sufficiently
analogous to a criminal sanction" [181 F.Supp. 867] to justify applying to it the
requirements of clarity and certainty ordinarily demanded of criminal penalties.
Since approximately twelve percent of the questions asked in all the orders
were held to be vague and uncertain, the district judge refused to assess the
$100-a-day penalties demanded by the United States.
17

The United States appeals only from the refusal to assess penalties and does not
dispute Judge Ryan's decision that twenty-eight questions were too vague to be
answered. Thus, the only question before us on the appeal of the United States
is whether the district court committed error in dismissing the government's
claim for statutory penalties.

18

Were this a case involving a single oversight or an honest mistake in a goodfaith attempt to comply with the Commission's order, the statute's absolute and
imperative terms would not prevent us from assuming that it could not have
been Congress' intent so severely to punish an innocent offender. United States
v. Northern Pac. Ry., 1916, 242 U.S. 190, 37 S.Ct. 22, 61 L.Ed. 240; see Kerr
S.S. Co. v. United States, 2 Cir., 1960, 284 F.2d 61, 63. The facts before us,
however, suggest no such mitigating circumstances. The respondents cannot
claim that theirs was merely an honest omission since they refused to accede to
many of the Commission's requests for documents and information on the sole
ground that the Commission had no authority to demand what was requested.
That the respondent's recalcitrance was caused by a wrong guess on a disputed
issue of law does not prevent it from being held to "lawful consequences
attached to the refusal." Life & Cas. Ins. Co. v. McCray, 1934, 291 U.S. 566,
574, 54 S.Ct. 482, 486, 78 L.Ed. 987; see United States v. Clyde S.S. Co., 2
Cir., 1929, 36 F.2d 691; F. T. C. v. Maynard Coal Co., 1927, 57 App. D.C. 297,
22 F.2d 873.

19

The respondents argue, however, that the reports demanded by the Commission
in the present case consisted of questions directed at particular information, and
that a comparison of 6(b) with 10 discloses that although the Commission is
empowered to order the filing of "answers in writing to specific questions" as
well as annual or special reports, it is only the failure to file reports which is
penalized by 10. In support of this contention we are urged to consider the
decision in United States v. National Biscuit Co., D.C.S.D.N.Y.1938, 25
F.Supp. 329.

20

The information requested by the Commission is indeed much like that

demanded in the National Biscuit Co. case, F. T. C. v. National Biscuit Co., see
D.C., 18 F.Supp. 667, at pages 669-670, but it is by no means certain that we
would have agreed with the district court's disposition of that case had it been
appealed. On the facts of this case we cannot say that the orders directed at St.
Regis were requests for "answers to specific questions" rather than demands for
reports. The line between the two is, by the nature of each, quite indistinct.
Reports that are demanded by the Commission will necessarily be addressed
towards more-or-less specific inquiries. A compliance report conveys details
concerning activity undertaken pursuant to an order; an investigation report
divulges facts concerning suspected violations. It would be totally unreasonable
to withdraw from the Commission the coercive effect of the 10 penalty
whenever it makes its wants known in detail but permit it to use the threat of a
mounting forfeiture so long as it cloaks the foci of inquiry behind general
language. Although it is entirely reasonable to read the statute so as not to fine
one who has failed only to respond to one or several specific interrogatories and
to remit the Commission to a suit in mandamus for enforcement of such a
request, when the quantity of interrogatories reaches the proportions of those in
this case and the request is made pursuant to a full investigation of a
respondent's course of conduct, the cumulative effect of all the questions is
substantially that of a request for a report.

21

The respondents further urge that infliction of the penalty would violate the due
process clause of the Fifth Amendment since they would be unable, under F. T.
C. v. Claire Furnace Co., 1927, 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978, to
test the validity of the order save by waiting and defending the suit in
mandamus, with penalties accumulating all the while. If judicial review were in
fact limited to enforcement proceedings instituted by the Commission, and a
daily forfeiture were collected for a failure to comply, the procedure might not
meet the established standards of due process. Cf. Oklahoma Operating Co. v.
Love, 1920, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596. However, the Claire
Furnace case was decided before either the Declaratory Judgment Act of 1934,
48 Stat. 955, or the Administrative Procedure Act of 1946, 60 Stat. 237, was
enacted. Mr. Justice Jackson, speaking for a unanimous Court in United States
v. Morton Salt Co., 338 U.S. 632, 654, 70 S.St. 357, 94 L.Ed. 401, intimated
broadly that Claire Furnace should not stand in the way of declaratory relief or
prompt review if that be necessary to rescue the penalty provision from attack
under the Fifth Amendment. We hold that under the declaratory-judgment
statute as it now stands, 28 U.S.C. 2201, a proceeding brought to test the
validity of an administrative agency's demand for a special annual report, when
daily penalties may be assessed for failure to comply with any valid request,
amounts to a "case of actual controversy" and is within the jurisdiction of the

United States district courts. The respondent bringing such an action would be
effectively denied judicial review if he is permitted no forum in which to
challenge the validity and scope of the agency's order; his injury, therefore, is
immediate enough to warrant judicial intervention even if the agency is not
prepared to institute court proceedings to achieve compliance. Since the statute
confers discretion on the courts to act when the injury is irremediable, Public
Service Commission v. Wycoff Co., 1952, 344 U.S. 237, 241, 73 S.Ct. 236, 97
L.Ed. 291; Eccles v. Peoples Bank of Lakewood Village, 1948, 333 U.S. 426,
434, 68 S.Ct. 641, 92 L.Ed. 784, and since the controversy between the parties
is clear, and the potential injury to the respondent is evident, the exercise of
equitable discretion is appropriate. Moreover, it is only if such a remedy is
available that the forfeiture sanction can withstand attack on due process
grounds.
22

We are also of the opinion that a remedy was available to St. Regis under
10(c) of the Administrative Procedure Act, 5 U.S.C.A. 1009(c). The
investigatory order authorized by 6(b) of the Federal Trade Commission Act
may not satisfy the statutory definition of "order" in 2(d) of the
Administrative Procedure Act, 5 U.S.C.A. 1001(d), since it may not be a
"final disposition." However, the order amounts to a "sanction" under 2(f)
since nonperformance of the Commission's demand entails a penalty of $100 a
day, and the directive therefore constitutes "compulsory or restrictive action."

23

The availability of this relief also mitigates the dilemma which our decision
here imposes upon district judges. Although modification of an agency's order
under 6(c) of the Administrative Procedure Act results in the most efficient
treatment of a partially void order, it carries with it the imposition of penalties
for prior noncompliance. A district judge might believe that the assessment of a
forfeiture would be unfair in light of the substantial defects in the agency's
order, and might thus be encouraged merely to deny the petition for mandamus
thereby forcing the agency to re-issue the valid portions of its order. Whether,
as a result of 6(c) of the Administrative Procedure Act, such a total refusal
may be sustained is a question which hinges on the construction of the word
"subpoena" in the statute, and we do not decide it here. In view of the
opportunity given to a respondent to attack an order requesting a special report
by a declaratory-judgment proceeding, the exaction of the statutory penalties
for noncompliance is fair in any case in which the respondent awaits a
mandamus action before contesting the agency's demands, and the order is held
valid.

24

Finally, we agree with Judge Ryan's decision which the United States has
not disputed in its briefs that only one course of conduct was being

investigated and that the second order issued to St. Regis was merely
supplementary to the first. Thus, only one penalty of $100 should be assessed
for each day of noncompliance.
25

The judgment below is, therefore, reversed insofar as it dismissed the demand
for penalties under 10 of the Federal Trade Commission Act, and the case is
remanded with instructions to enter judgment for the United States in the
amount of $100 a day for each day on which St. Regis was in default of the first
order requiring a special report.

Notes:
*

Sitting by designation

Growers Container Corp. (Salinas, Calif.), F. J. Kress Box Co. (Pittsburgh,

Penna.), Pacific Waxed Paper Co. (Seattle, Wash.), Pollock Paper Corp.
(Dallas, Texas), Rhinelander Paper Co. (Rhinelander, Wis.)

Cupples-Hesse Corp. (St. Louis, Mo.), Northwest Door Co. (Tacoma, Wash.)

The relevant provisions of the statute as amended to date (56 Stat. 199, 62 Stat.
989) are as follows:
"That in any civil action brought in any district court of the United States under
the Act entitled `An Act to protect trade and commerce against unlawful
restraints and monopolies', approved July 2, 1890, `An Act to regulate
commerce', approved February 4, 1887, or any other Acts having a like purpose
that hereafter may be enacted, wherein the United States is plaintiff, the
Attorney General may file with the clerk of such court a certificate that, in his
opinion, the case is of general public importance * * *."
"Sec. 2. In every civil action brought in any district court of the United States
under any of said Acts, wherein the United States is complainant, an appeal
from the final judgment of the district court will lie only to the Supreme Court."

Not only is any violation of the Sherman and Clayton Acts also a violation of
5 of the Federal Trade Commission Act, Times-Picayune Publishing Co. v.
United States, 1953, 345 U.S. 594, 609, 73 S.Ct. 872, 97 L.Ed. 1277, but the
Federal Trade Commission is expressly authorized by 6 of the Act to
investigate antitrust violations and by 7 to act as a "master in chancery" to
report on the proper form of an antitrust decree. Moreover, 11 of the Clayton

Act, 15 U.S.C.A. 21, authorizes the Commission to enforce compliance with

7 of the Clayton Act
5

In United States v. Morton Salt Co., D.C.N.D.Ill.1948, 80 F.Supp. 419,

affirmed 7 Cir., 1949, 174 F.2d 703, reversed 1950, 338 U.S. 632, 70 S.Ct. 357,
94 L. Ed. 401, discussedinfra, the request sought by the Attorney General
under 9 was framed not as a petition for mandamus but as a request for a
mandatory injunction. See 80 F.Supp. at page 425. The request in this case was
similarly phrased.

Sec. 6:
"The Commission shall also have power * * * (b) To require, by general or
special orders, corporations engaged in commerce, excepting banks and
common carriers subject to the Act to regulate commerce, or any class of them,
or any of them, respectively, to file with the commission in such form as the
commission may prescribe annual or special, or both annual and special, reports
or answers in writing to specific questions, furnishing to the commission such
information as it may require as to the organization, business, conduct,
practices, management, and relation to other corporations, partnerships, and
individuals of the respective corporations filing such reports or answers in
writing. Such reports and answers shall be made under oath, or otherwise, as
the commission may prescribe, and shall be filed with the commission within
such reasonable period as the commission may prescribe, unless additional time
be granted in any case by the commission."

H.R. 15613, 63d Cong., 2d Sess. (1914)

S. 1460, 63d Cong., 2d Sess. (1914)

"Neither the Secretary, nor any other officer or employee of the Department of
Commerce or bureau or agency thereof, may, except as provided in section 8 of
this title
"(1) use the information furnished under the provisions of this title for any
purpose other than the statistical purposes for which it is supplied; or
"(2) make any publication whereby the data furnished by any particular
establishment or individual under this title can be identified; or
"(3) permit anyone other than the sworn officers and employees of the
Department or bureau or agency thereof to examine the individual reports."

26

FRIENDLY, Circuit Judge (concurring).

27

I join in Chief Judge LUMBARD'S disposition of the many issues in this case.
But I see little basis and less occasion for the statement that the availability of
methods for securing an early determination of the validity of a direction under
6(b) of the Federal Trade Commission Act, pursuant to statutes passed long
afterwards, necessarily renders exaction of the statutory penalties "fair" in any
case where the respondent has not chosen to use them. If he prefers to await suit
and then succeeds in demonstrating such extensive invalidity that there is no
longer an intelligible requirement for an "annual or special report," he is
entitled to prevail. Per contra his utilization of the Declaratory Judgment Act or
the Administrative Procedure Act will not avail him if he proves wrong, save,
of course, for such periods as the direction has been stayed.