The opinion
MAGRUDER, Judge
(dissenting).
The unusual feature of this case is that a buyer is protesting because it is not allowed to pay more than the ceiling price for a commodity. However, since the regulation forbids the buyer to offer or to pay more than the ceiling price, the buyer is “subject to”'the regulation and has standing to protest. Cf. Buka Coal Co. v. Brown, Em.App., 1943, 133 F.2d 949, 951-52 . We therefore must consider the merits of the complaint.
The regulation is not discriminatory against complainant, for it treats alike all cigar manufacturers who ilesire to purchase green or packed tobacco. Nor does the regulation prohibit complainant from acting as a custom packer for growers. As a matter of fact, apparently complainant has never been a. custom packer. Complainant is a manufacturer of cigars who in the past has preferred to buy its tobacco green and pack the same by its own processes and with its own facilities. The regulation as interpreted forbids growers to charge the ceiling price for packed tobacco when the packing is done by the buyer rather than by the seller. It is difficult for me to see why this is not a perfectly reasonable provision.
Prior to price control, I suppose there was a more or less constant differential between the market prices of green and packed tobacco, the difference representing the cost of the packing operation plus a margin of profit for the packer. If a cigar manufacturer wanted to do his own packing, he would naturally buy the green tobacco from the grower. He would not go through the rigmarole of custom-packing the tobacco for the account of the grower and then buying the tobacco from the grower as packed tobacco. Prior to price control, a group of growers might have decided that they wanted to perform the packing function and obtain the additional profit derived therefrom. They might then have formed a co-operative to do the packing, thereafter selling the tobacco at the market price for packed tobacco. If a cigar manufacturer had wanted to buy the green tobacco of those particular growers, he might have had to offer them somewhat more than the current market price for green tobacco in order to induce them to forego their packer profits. This would certainly have been so if such growers had a ready market elsewhere for their tobacco in packed form.
No attack is made here upon the reasonableness of the maximum price for green tobacco prescribed in the regulation. Presumably the higher maximum price established for packed tobacco allows a reasonable margin of profit for the packing operation. This must be so, because the growers have found it to their advantage to perform the packing function through cooperatives. It is not improper for them to do this, and it is not easy to see how complainant may justly complain because the regulation permits them to do so and makes it profitable for them to do so. There is no showing that the established maximum *514 price differential between green.and packed tobacco is out of line with the historic differential as it existed prior to price control. It may be that complainant cannot now obtain all of the particular green tobacco which it would like to buy, though the record^ is not as clear as it might be as to whether this inability is due to the operation of the regulation. But assuming in complainant’s favor that its purchase of green tobacco is hampered by the fact that it cannot offer growers more than the ceiling price for green tobacco in order to induce them to forego the profit they stand to make from performing the packing operation, it does not follow, in my opinion, that the regulation is invalid because it forbids growers to charge the ceiling price for packed tobacco when the packing is done by the buyer rather than by the seller.