The opinion
KENNEDY, Circuit Judge,
dissenting:
I respectfully dissent from that portion of the opinion which holds that section 8 of the Clayton Act does not exempt interlocking directorates between banks and non-banks which are competing entities. The principal reasons for my dissent are well-stated by Chief Judge Peckham in his thorough and persuasive opinion below, 422 F.Supp. 686 (N.D.Cal.1976), and I have little to add to that careful explanation of the statute, an explanation which in my view is entirely correct.
Chief Judge Browning’s meticulous examination of both the statute and its history demonstrates that the question is a difficult one. My principal objection to the rhetoric of the majority opinion is that the reasonable and plausible arguments of the district court are for the most part labeled bare assertions, while, viewed against the legislative history of this statute, the same epithet could be applied to most of what the majority opinion contains. No doubt, the purpose of the statute is of principal importance in ascertaining the scope of ambiguous terms, but the broad and simple formulation of a purpose to promote competition is insufficient to resolve a case which turns upon words and concepts that are much more precise. The purpose of the statutory exemption obviously was to narrow the range of its coverage. In my view, had Congress intended the exemption to cover only pure bank interlocks, it would have used much different language to do so.
If, measured by the legislative purpose to promote competition, my interpretation of the exemption can be characterized as a loophole, so be it. The lapse has been well-known to the business community, and there has been widespread reliance on the assumption that the statute does not cover these interlocks. Congress has not changed the statute, although it has considered the problem expressly. Legislative lacunae do not demand judicial correction, even if that correction invokes the broad doctrinal scheme that prompted the legislature to act initially. The judiciary is not a repair shop to streamline statutory structures, especially when what is perceived as an imperfection in the design is in fact the result of compromises which are the very essence of the legislative process. Errors absolutely unforeseen or wholly contrary to the legislative purpose might give the judiciary somewhat freer reign, but cf. TVA v. Hill, 437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978), but a question over which there has been as much speculation and warning as this one neither requires nor permits judicial intervention to patch it up. The majority’s strained efforts in its comprehensive opinion serve only to highlight and underscore the existence of a legislative intent to compromise and to narrow the statutory coverage, the very opposite of the premise ascribed to the Congress, a premise which is the sole basis for the majority’s opinion.
With these few observations, I file this dissent to parts 1 through 8 of the majority’s opinion. I concur in the reasoning and conclusions of the court in its interpretation of the McCarran-Ferguson Act.