The opinion
WASHINGTON, Circuit Judge
(dissenting) .
I am constrained to disagree with the court’s disposition of this petition. In my view, the portion of the Federal Maritime Board’s order which approved Agreement No. 8063 is final, and hence is properly reviewable now.
The Board’s order dealt with two separate but related proceedings: (1) Agreement No. 8063 filed for approval, and the protest as to it, and (2) the complaint and the motion to dismiss it. The protest attacked Agreement No. 8063, as well as containing other allegations. The complaint did not attack Agreement No. 8063 as such, but instead alleged in substance that the parties to it were in fact operating under a different agreement which had not been filed for approval and which was in violation of the Shipping Act, 1916. The Board’s order stated that “Agreement No. 8063 be, and the same is hereby, approved,” and in a separate paragraph dealt with the different subject matter of the complaint, dismissing it except for the allegation that the parties “are operating under an agreement which has not been filed for approval.” Approval to Agreement No. 8063 has thus been finally given. The hearing which is now being held in the Board is to determine whether the parties are actually operating currently under an additional or different agreement which has not been filed for, or received, Board approval. If they are, they will be in violation of Section 15 and presumably will be restrained; if they are not, the complaint will be dismissed. In either event, it is not certain that the approval of Agreement No. 8063 will be in question or will be considered. 1
*562 The statute plainly requires the Board to consider all agreements of the sort involved here and either approve or disapprove. And this includes business agreements for the formation of corporations, when the contracting parties are subject to Section 15. No agreements are lawful until approved, and when approved, they are exempt from the antitrust laws. See Isbrandtsen Co., Inc. v. United States, 93 U.S.App.D.C. 293 , 211 F.2d 51 , certiorari denied sub. nom. Federal Maritime Board v. United States, 1954, 347 U.S. 990 , 74 S.Ct. 852 , 98 L.Ed. 1124 . In my view approval constitutes final action as to the particular agreement approved, irrespective of questions as to other agreements the parties may make, and the Board proceedings and order so treat it. The fact that Section 15 itself authorizes the Board to cancel or modify agreements, even after approval, if it later finds cause to do so, should not affect present review-ability of the approval. If the approval of the agreement is invalid action, the validity should be tested now; otherwise the Board can always defer review on the ground that it might in the future change its mind as to the action it has taken.
I think the Ninth Circuit’s decision in a companion case infers that the issue here is reviewable. Howard Terminal v. United States, 1956, 239 F.2d 336 . There, the court was dealing with a complaint alone, part of which had been dismissed. The court declined to review the dismissal, using the Federal rule on multiple claims as an analogy. But it pointed out that the Board’s approval of the contracts was now the subject of litigation in this court. I think this indicates that the Ninth Circuit thought the Board’s action in approving the agreement is presently reviewable, regardless of the outcome of pending or subsequent charges about specific violations of the statute.
An additional point should be made. If the validity of the Board’s approval of Agreement No. 8063 may not be reviewed now, the contracting parties are acting at their peril under an agreement which may be unlawful under the antitrust laws if it is later determined that there has not been valid Board approval. The contracting parties have a strong interest in having the lawfulness of their activity determined at an early date. The petitioners must also be interested in prompt decision. I do not think this petition should be dismissed without seeking the views of all parties on the issue of finality. Here, the issue of finality has not been briefed; intervenors’ latest written statement to the court suggests only that decision in this case be deferred. In fairness to all concerned, we should at least stay our hand until we have received their views.
. It is of course true that if the Board in considering the portion of the complaint that was not dismissed determines that intervenors did not submit their entire agreement for Board ap *562 proval, it might fashion a remedy which would, among other things, revoke the approval previously given. Of. Recommendation of the Examiner, EMB Dockets Nos. 788, 796, 798. But the possibility that future agency action may render moot a controversy arising from agency action tbat is final does not defeat reviewability, though it might be good reason for us to delay our own disposition of a petition for review.