# Appendix — American Air Filter Co. v. Federal Trade Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1444%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 439 U.S. 958 ## Text ‘Supreme Cou, U.S > \ 7 {- FILED JUL 28 1978 i MICHAEL pop — ODAK, JR., CLERK Supreme Court of the United States : Ocroper Term, 1978 No. 78- l . 7 = American Arr Fiver ound » ne. Pf Petitioners Vv. FeveraL Trave Commission, et al., Respondents 78-168 No. 78- 0 Tue Goopyrar Tire & Russer Company, et al., Petitioners Vv. FepveraL Trape Commusston, et al., Respondents No. 78- 28-109 DeeriInc-MiILurKken, Inc., Petitioner, Vv. FepveraL Traps Commission, et al., Respondents PETITIONERS’ JOINT APPENDIX TO PETITION FOR WRIT OF CERTIORARI Paess or Byaon S. Avams Painting, Inc, Wasnineron, D. C. TABLE OF CONTENTS Page In Re FTC Line of Business Report Litigation; In Re FTC Corporate Patterns Report Litigation, United States Court of Appeals for the District of Columbia Circuit (Opinion of July 10, 1978) ..... In Re FTC Line of Business Report Ea Litigation; In Re FTC Corporate Patterns Iitigation, 432 F. Supp. 274 coe at tena onkan In Re FTC Line of Business ay oon Litigation; In Re FTC C te Patterns Report Litigation, 432 As eR ere In Re FTC Line of Business Report Litigation; In Re FTC Corporate Patterns Report Litigation, United States District Court for the District of Columbia (Memorandum Opinion and Order, July 11, 1977). 121 In Re FTC Line of Business Report Litigation, United States District Court for the District of Columbia (Final Order and Judgment, July 15, 1977) ..... In Re FTC Corporate Patterns Report Litigation United States District Court for the District " wy (Final Order and Judgment, July ~~ 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 77-1728 In Re: FTC Liye or Business Report Litiaation, APPELLANTS (Mise. No. 76-127) No. 77-1931 In Re: FTC Liye or Business Report Lirication American CyanamMip Company, et al., APPELLANTS (Mise. Civil Action No. 76-0127) No. 77-1942 Deertnc MiLuiken, INC., APPELLANT v. FrperaL Trape Commission, et al. (Civil Action No. 76-1095) No. 77-1944 Degerinc-MILuikEN, INC., APPELLANT v. FreperaL Trape Commission, et al. (Civil Action No. 76-1109) 2 No. 77-1947 In Re: FTC Liyeg or Bustness Report Lirication NL Inousrrizs, INc., APPELLANT (Mise. No. 76-0127) No. 77-1953 In Re: FTC Live or Bustness Report Litrication FeveraL Trape Commission PARTIES, APPELLANTS (Mise. Civil Action No. 76-0127) No. 77-1956 In Re: FTC Liye or Business Report Lirication CycLtops CoRPORATION, APPELLANT (Civil Action Mise. No. 76-0127) No. 77-1732 In Re: FTC Corporate Patterns Report Litication, APPELLANTS (Mise. No. 76-0126) No. 77-1930 In Re: FTC Corporate Patrerns Report Larication American CyaNnaMip Company, et al., APPELLANTS (Misc. Civil Action No. 76-0216) 3 No. 77-1943 Derrinc-MILLIKEN, INC., APPELLANT v. FeperaL Trape Commission, et al. (Civil Action No. 76-1123) No. 77-1952 In Re: FTC Corporate Patrerns Report Litication FeperaL TrapE CoMMISSION PARTIES, APPELLANTS (Mise. Civil Action No. 76-0126) Appeals from the United States District Court for the District of Columbia Argued December 16, 1977 Decided July 10, 1978 J. Randolph Wilson, with whom John S. Koch, and Steven S. Rosenthal were on the brief, for appellants Air Products and Chemicals, Inc., et al., in Nos. 77-1728 and 77-1732. Lee A. Rau, with whom Edward T. Tait, John M. Wood and Stuart M. Gerson were on the brief, for appellants American Air Filter Co., Inc., e¢ al., in Nos. 77-1728 and 77-1732. Mark Jacoby with whom Ira M. Milistein and Salem M. Katsch were on the brief, for appellants Aluminum Co. of America, et al., in Nos. 77-1728 and 77-1732. 4 John C. Reitz was on the brief, for appellants American Greetings Corp., e¢ al., in Nos. 77-1728 and 77-1732. James R. Henderson was on the brief, for appellants, Inland Steel Co., e¢ al., in Nos. 77-1728 and 77-1732. John F. Graybeal and Robert C. Houser, Jr. were on the brief, for appellant Square D Co., in Nos. 77-1728 and 77-1732. Andrew S. Krulwich was on the brief for appellant Hoffman LaRoche, in Nos. 77-1732, and for appellant Lone Star Industries, Inc., in No. 77-1728. Philip J. Davis was on the brief, for appellant Cheme- tron Corp., in Nos, 77-1728 and 77-1732. James F. Rill was on the brief, for appellant Carpenter Technology Corp., et al., in No. 77-1732, and for appellant A. E. Staley Manufacturing Co. in No. 77-1728. James F. Bromley was on the brief, for appellant United States Gypsum Co. in Nos. 77-1728 and 77-1732. Ronald P. Wertheim was on the brief, for appellant Ashland Oil, Inc., in Nos. 77-1728 and 77-1732. Daniel K, Mayers and Neil J. King were on the brief, for appellants The Babcock and Wilcox Co., et al., in Nos. 77-1728 and 77-1732. William C. Collishaw was on the brief, for appellant White Consolidated Industries, Inc., in Nos. 77-1728 and 77-1732. Samuel K. Abrams and Wilbur L. Fugate were on the brief, for appellants Cone Mills Corp., et al., in Nos. 77- 1728 and 77-1732. Raymond E. Vickery, Jr., was on the brief, for appellants Hughes Tool Co., et al., in No. 77-1732. Ramsay D. Potts and Steven L. Meltzer were on the brief, for appellant Emerson Electric Co., in Nos. 77-1728 and 77-1732. 5 Milton Wolson and S. White Rhyne, Jr. was on the brief, for appellant SCM Corp., in Nos. 77-1728 and 77-1732. Albert R. Connelly was on the brief, for appellant Beth- lehem Steel Corp., et al., in Nos. 77-1728 and 77-1732. Edwin E. Rockefeller and Alan M. Frey were on the brief, for appellant Norton Simon, Inc., in Nos. 77-1728 and 77-1732. David J. Lewis and Elroy H. Wolff were on the brief, for appellants Thomas Lipton, Inc., e¢ al., in Nos. 77-1728 and 77-1732. Anthony B. Barton was on the brief, for appellant, A.nerican Maize-Products Co., in Nos. 77-1728 and 77-1732. Eve E. Backrack was on the brief, for appellant Food Fair Stores, Inc., in No. 77-1732, and for appellant C.L.T. Financial Corp., in No. 77-1728. Coswell O. Hobbs, III, was on the brief, for American Stores Co., in No. 77-1732. Robert J. Pope was on the brief, for appellant Conti- nental Group Inc., in No. 77-1732. Philip A. Lacavara and Gerald Goldman were on the brief, for appellants Merck and Co., Inc., et al., in No. 77-1728. J. Stanley Stroud was on the brief, for appellants CPC International, Inc., et al., in No. 77-1728. David B. Lytle was on the brief, for appellant Republic Steel Corp., in No. 77-1728. Joseph W. Burns was on the brief, for appellant Inger- soll-Rand Co., in No. 77-1728. Ronald G. Precup was on the brief, for appellant Ameri- can Beef Packers, Inc., in No. 77-1728. Gilbert H. Weil was on the brief, for Bristol-Myers Co., in No. 77-1728. 6 William Simon, Harold F. Baker, David C. Murchison, J. Wallace Adair, John DeQ. Briggs, III, and Stuart H. Harris were on the brief, for appellants American Cyana- mid Co., et al., in Nos. 77-1728, 77-1732, 77-1930 and 77-1931. Robert E. Jordan, III, Edward E. Vaill and Robert M. Goolrick were on the brief, for appellant, Atlantic Richfield Co., in Nos. 77-1728 and 77-1732. Andrew J. Kilcarr and Vincent Tricarico were on the brief, for appellant Mobil Oil Corp., in Nos. 77-1728 and 77-1732. Jesse P. Luton, Jr., John E. Bailey and Kevin F. Cun- ningham were on the brief, for appellant Gulf Oil Corp., in Nos. 77-1728 and 77-1732. Paul J. Newlon, Victoria G. Traube and Michael A. Lampert were on the brief, for appellant Milliken and Co., et al., in Nos. 77-1728, 77-1732, 77-1942, 77-1943 and 77-1944. Leslie W. Jacobs was on the brief, for appellant The Goodyear Tire and Rubber Co., et al., in Nos. 77-1728 and 77-1732. Gerald P. Norton, Deputy General Counsel, Federal Trade Commission with whom Jerald D. Cummins, Acting Assistant General Counsel, Joanne L. Levine, Sophie A. Krasitk, Thomas A. Sheehan and Arthur W. Adelberg, Attorneys, Federal Trade Commission, were on the briefs, for appellees Federal Trade Commission, in Nos. 77-1728, 77-1732, 77-1930, 77-1931, 77-1942, 77-1943, 77-1944, 77-1947 and 77-1956, and cross-appellants in Nos. 77-1952 and 77- 1953. Frank R. Rosenfeld, Attorney, Department of Justice with whom Earl J. Silbert, United States Attorney, Bar- bara Allen Babcock, Assistant Attorney General, and Leonard Schaitman, Attorney, Department of Justice, were on the brief, for appellee Comptroller General, in No. 77- 1728. Atta omen oe et ee oe Ne 0 ald 7 Before Bazeton and Rosinson, Circuit Judges, and Ausrey E. Rostnson, Jr.,* District Judge, United States District Court for the District of Columbia. Opinion per curiam. Per Curntam: We review the decisions of the District Court granting summary judgment to the Federal Trade Commission (Commission or FTC) and enforcing the Com- mission’s orders requiring appellant corporations to file financial performance reports as part of the Line of Busi- ness (LB) and Corporate Patterns Report (CPR) surveys.’ * Sitting by designation pursuant to 28 U.S.C. § 292(a) (1970). ‘Multiple enforcement actions were brought by the Commission against companies who failed to comply with the 1974 LB and 1972 CPR orders. The actions relating to the two surveys were assigned to Judge Flannery who consolidated them into two dock- ets, In re FTC Line of Business Report Litigations, Master File Misc. No. 76-127 and In re Corporate Patterns Report Litigations, Master File Misc. No, 76-126. By order dated July 30, 1976 Judge Flannery established procedures for his tandem consideration of the two programs, (LB App. 162-186) In a series of opinions and orders the District Court addressed the numerous issues raised by the parties. Jn re FTC Corporate Patterns Report Litigations, 432 F.Supp. 274 (Jan. 21, 1977) (LB App. 187); 432 F.Supp. 291 (April 12, 1977) (LB App. 211) ; 1977-2 Trade Cas. 72,141 (July 11, 1977) (LB App. 239); (unreported Final Order and Judg- ments) (July 15, 1977) (LB App. 271; CPR App. 248); 1977-2 Trade Cas. 72,420 (July 29, 1977) (denying motion to amend). Pursuant to the final order and judgment of the District Court entered July 15, 1977, the corporate parties were required to file their Line of Business reports within 150 days of the date of the order and the Corporate Patterns Reports within 90 days. A motion for stay of the enforcement order pending appeal was denied by the District Court on July 22, 1977 (LB App. 273) and by this court on October 21, 1977 (LB App. 274). Petition was made to the Supreme Court for a stay pending appeal in this court of the Corporate Patterns Report orders. Justice Brennan granted the petition on November 11, 1977 (CPR App. 253). Following several extensions of the compliance date in the Line of Business program, we issued an order on April 26, 1978 staying enforcement of the LB orders pending our further consideration of the matter. 8 These two broad-based statistical surveys are conducted by the FTC pursuant to its authority under Section 6(b) of the Federal Trade Commission Act, which empowers the Commission to require corporations to file informational reports regarding the company’s ‘‘organization, business, conduct, practices, management, and relation to other cor- porations.’’? : I. Toe FTC Surveys A. The Line of Business Program. In August 1975, as part of the Line of Business survey, the Commission ordered 450 of the nation’s largest domes- tic manufacturing concerns to file reports disclosing certain indicia of financial performance for 1974.2 The 1974 LB 715 U.S.C. § 46(b) (1976) states that the Commission shall have the power To require, by general or special orders, persons, partner- ships, and corporations, engaged in or whose business affects 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, prac- tices, management, and relation to other corporations, partner- ships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or other- wise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commis- sion may prescribe, unless additional time be granted in any ease by the Commission, *A more limited Line of Business survey was conducted for 1973, The LB form served on 345 cette d in the 1973 survey differed from the 1974 form. See Bureau of Economics Staff Memo- randum, 1974 Form LB Revision (LB App. 782). Numerous mo- tions to quash the 1973 orders were denied by the Commission. Preenforcement actions seeking to enjoin the 1973 survey were OS AN ele Te lee OPAC Ae wipes Ml thane © Oe tactstaodlyn 6. ee ea oe LOA AS in nl A eal lle NBG he t its own rules in the first in- stance.’ The Commission on June 2, 1978, completed its 139 U.S.App.D.C. ——, 567 F.2d 96 (1977). 49 Td. at ——, 567 F.2d at 106. In FTC vy. Atlantic Richfield Co. this court required sequestra- tion of the investigative documents pending the Commission’s in- terpretation of its rules as required on remand in order to ensure that discovery in the FTC adjudicative proceeding proceed accord- ing to the Commission’s interpretation of its rules. 567 F.2d at 106-107. Following the issuance of Atlantic Richfield on July 25, 1977, the adjudicative ccrporations moved the District Court to amend its final order and judgment by fashioning a sequestration order similar to the one issued in Atlantic Richfield. See 1977-2 Trade Cases 72,420 (D.D.C. July 29, 1977). In response the Com- mission committed to prevent access, outside normal discovery process, by complaint counsel to either the LB or CPR reports or to any unpublished aggregate data based on such reports pending the Commission’s interpretation of its rules. Letter from Caro] M. Thomas, Secretary to the FTC, to Robert G. Jordon, IIT (July 29, 1977) (LB App. 2781). We agree with the District Court that the FTC’s voluntary commitment to sequester the LB and CPR data to the same extent required by this court’s order in Atlantic Rich- field was adequate. 46 task and concluded that its rules for adjudicative proceed- ings do not prevent access by complaint counsel to docu- ments and information otherwise properly obtained by the Commission without leave of the Administrative Law Judge in charge of the adjudication and without notice to the ad- judicative respondent.’ Adjudicative appellants contend that the LB and CPR orders should not be enforced as to them because of the potential for allegedly unlawful use of the LB and CPR data in the adjudicative proceedings. We agree fully with the District Court that these claims do not go to the ques- tion of enforcement because ‘‘the potential jeopardy of procedural rights in the adjudicative proceedings cannot impinge upon the FTC’s right to collect the information in question, only upon the use to which the information might be put.’’*** The claims presented by the adjudicative appellants relate not to their rights with respect to the the Line of Business and Corporate Patterns Report sur- veys but rather to claimed rights in the adjudicative pro- ceedings currently pending at the FTC. These assertions must be made first in those administrative proceedings and then pursued, if necessary, in the administrative and judi- cial avenues of appeal. As this court has stated clearly in Atlantic Richfield: Subsequent to the Commission’s interpretation of its rules, all the legal questions which Atlantic wishes to raise will be comprehended within the Exxon adju- dicatory proceeding, and dealt with by the Adminis- trative Law Judge.... If Atlantic is dissatisfied with the Commission’s construction of its rules, Atlantic can raise these claims In the Matter of Subpoena Duces Tecum Addressed to At- lantic Richfield Co., et al., FTC Docket No. 741-0019. #2 432 F.Supp. at 313. See note 121, supra. 47 in the context of an appeal from the final decision of the agency in the adjudicative proceeding.** The present litigation is no more appropriately suited to resolution of any claims that the corporations may wish to raise with respect to the Commission’s interpretation of its rules than were the proceedings in Atlantic Richfield. Rais- ing these issues at this juncture is improper, and, accord- ingly, we affirm the District Court’s order. C. The Comptroller General’s Review. Appellants’ final allegation of error is that the Comp- troller General’s approval of the Line of Business form was defective because it was premised on a misunderstand- ing of the criteria for review established by Section 3512 of the Federal Reports Act.’ This statute requires the independent regulatory agencies to submit proposals for the collection of information from ten or more persons to the Comptroller, who must review the form and advise the agency within 45 days whether it satisfies the requirements of the Federal Reports Act. 43 Supra note 139, 567 F.2d at 107. 44The Corporate Patterns Report form was submitted to the Comptroller General by the Federal Trade Commission on January 23, 1975. The Comptroller published a notice of the proposed sur- vey in the Federal Register on January 31, 1975, 40 Fed. Reg. 4689, soliciting written comments from all interested parties. In a letter dated March 24, 1975 from Monte Canfield, Jr., Director of the General Accounting Office, to FTC Chairman Lewis A. Eng- man the CPR form was cleared for use by the FTC (CPR App. 777). Although the GAO expressed concern about the ‘‘meaning- fulness’’ and confidentiality of the CPR data sought, it did not consider these reservations to be a basis for denying clearance under the review provisions of the Federal Reports Act. The corporate parties raise no objection to the Comptroller’s clearance of the CPR form. 48 The Comptroller construes Section 3512 of the Federal Reports Act as establishing two criteria for review of data- collection plans. These two criteria are set forth in Section 3512(b), which states: In carrying out the policy of this section, the Comp- troller General shali review all existing information gathering practices of independent regulatory agen- cies as well as requests for additional information with a view toward— (1) avoiding duplication of effort by indepen- dent regulatory agencies, and (2) minimizing the compliance burden on busi- ness enterprises and other persons.’ In approving the LB form, the Comptroller specifically found that the information sought was not available to the FTC from another federal source and that the Commission “6 Td, § 3512(b). Great weight must be given to an agency’s interpretation of its statutory mandate. See Chemehevi Tribe of Indians v. FPC, 420 U.S. 395, 409-410, 95 S.Ct. 1066, 1075-1076, 43 L.Ed.2d 279, 289-290 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165-166 (1971) ; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 384 (1969); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965). Appellants suggest that the Comptroller’s clearance regulations reflect a contemporaneous interpretation of § 3512 that includes a third statutory review criterion, ‘‘appropriateness.’’ The regula- tions simply refer to a determination that the forms are ‘‘appro- priate for collection of the information sought,’’ 4 C.F.R. §§ 10.7, 10.12 (1976). We find no greater support for appellants’ expansive construction of this language in the regulations than in the statute itself. Moreover, the agency’s statement at the time these regula- tions were proposed reflects a contemporaneous interpretation of the statute by the Comptroller that comports with his present view, and to which we give the appropriate deference. 39 Fed. Reg. 2436 (1974). 49 had sufficiently minimized the respondents’ burden of com- pliance with the reporting requirement.’ Appellants argue that the Comptroller was obliged to determine additionally that the data sought was ‘‘appro- priate’ to the FTC’s expressed need. This third criterion of review, appellants contend, is imposed implicitly by Section 3512(d) of the Federal Reports Act, which states: While the Comptroller General shall determine the availability from other Federal sources of the infor- mation sought and the appropriateness of the forms for the collection of such information, the independent regulatory agency shall make the final determination as to the necessity of the information in carrying out its statutory responsibilities and whether to collect such information. (emphasis added)** The determination of appropriateness in this context, ap- pellants suggest, should entail a substantive evaluation of the requested data to establish that it meets ‘‘some mini- 47 Letter from Monte Canfield, Jr., Director of the General Ac- counting Office, to FTC Chairman Engman (Aug. 18, 1975) (LB App. 798-802). On July 1, 1975 the FTC submitted the 1974 LB form to the Comptroller (LB App. 2025). The GAO published the proposed form in the Federal Register on July 8, 1975, 40 Fed. Reg. 28677, soliciting comments from interested persons. The 1974 LB form was cleared for use by the FTC in a letter dated August 18, 1975 from Monte Canfield, Jr., Director of the GAO, to FTC Chairman Engman (LB App. 798-802). See Affidavit of Carl F. Bogar, Asst. Director, Procurement Systems & Acquisition Div. GAO (LB App. 2019). The Comptroller’s August 18 letter indicated that revisions in the LB form for 1973 had improved, in the Comptroller’s view, the meaningfulness of the data to be collected. The Comptroller ex- pressly indicated, however, that his views were advisory and not within the standards of review provided by § 3512 (LB App. 801-802). : 48 44 U.S.C. § 3512(d) (Supp. V 1975). 50 mum standard of meaningfulness and reliability in terms of the agency’s stated need.’’ *** We need appellants’ argu- ment at odds with both the language and the legislative history of Section 3512 of the Federal Reports Act. Section 3512 was added to the Federal Reports Act in 1973 to create a special review procedure for the data- collection plans of the federal regulatory agencies.” Prior — to the 1973 amendment, the regulatory agencies were sub- ject to the clearance authority of the Office of Management and Budget (OMB), which continues to serve this function vis-a-vis nonregulatory agencies.’** Congress’ express pur- pose in establishing a different review process for the regu- latory agencies was to insure that the existing clearance procedure for questionnaires or requests for data does not become, inadvertently or otherwise, a device for delaying or obstructing the investigations and data collection neces- sary to carry out the important regulatory functions assigned to the independent agencies by the Con- gress.**? Prior to the 1973 amendment, the OMB possessed auv- thority to undertake a substantive appraisal of the data that a regulatory agency sought and to bar collection upon a finding that the data were not necessary for effectuation of the agency’s function or particular program’s purpose.’ *° Joint Appellants LB Brief at 72. © Pub, L. No. 93-153, Title IV, § 409(b), 89 Stat. 593 (1973 codified at 44 U.S.C. § 3512 (Supp. V 1975). — **} Id. The OMB’s clearance authority is defined 44 U.S.C. §§ 3501-3511 (Supp. V 1975). ad **? H.R. Rep. No. 93-624, 93d Cong., 1st Sess. 31 (1973). 8 44 U.S.C. § 3586 (Supp. V 1975) provides: Upon the request of a party having a substantial interest, or upon his own motion, the Director of the Bureau of the dl Congress regarded the evaluation of the regulatory agency’s need for data as essentially a policy determina- tion and considered the reviewing agency’s veto power as a source of interference with the independence of the regu- latory agencies.’ So in creating a separate clearance pro- cedure for these agencies, Congress specifically provided in Section 3512(d) that ‘‘the independent regulatory agency shall make the final determination as to the neces- sity of the information in carrying out its statutory re- sponsibilities and whether to collect such information.” ** Appellants’ construction of ‘‘appropriateness’’ as a re- quirement that the Comptroller evaluate the data sought in terms of the agency’s need is untenable in light of this provision reserving for the agency the determination as to the necessity of the information in carrying out its statu- Budget may determine whether or not the collection of infor- mation by a Federal agency is necessary for the proper performance of the functions of the agency or for any other proper purpose. Before making a determination, he may give the agency and other interested persons an opportunity to be heard or to submit statements in writing. To the extent, if any, that the Director determines the collection of information by the agency is unnecessary, for any reason, the agency may not engage in the collection of the information. 154 Senator Bentsen, author of the enacted amendment, made the following statement on the Senate floor at the time of the amend- ment’s passage : Unlike the previous oversight by OMB the GAO (Comptroller) would not make the final decision as to whether the informa- tion was needed. That decision would be left with the inde- pendent agency. My feeling was that if the General Account- ing Office were given veto power over whether information was needed, it is putting them in the policy-decision framework, and I do not think that should be done. 119 Cong. Rec. 24085 (1973). See also id. at 23884-23885. 188 44 U.S.C. § 3512(d) (Supp. V 1975). 52 tory “2:sponsibilities.** We therefore agree with the District Court **’ and the Comptroller General that the term ‘‘ap- propriateness’’ serves as merely a shorthand reference to the requirement of Section 3512(b) *** that the Comptroller inspect the regulatory agency’s information-gathering pro- posal with a view toward minimizing compliance burden.’” 196 Statutes must be construed when possible to avoid disharmony among their provisions. 187 439 F.Supp. 307-310 (LB App. 227-30). 68 44 U.S.C. § 3512(b) (Supp. V 1975) quoted in full, text supra at 50-51. 16° Appellants suggest an alternative theory of statutory con- struction in support of their claim that the Comptroller is required to analyze the meaningfulness or reliability of the requested data to the agency’s stated need. They suggest that the burden inquiry of § 3512(b) should entail a ‘‘cost-benefit’’ analysis balancing the cost to the reporting companies with the benefit to the agency. Since the result of appellants’ assertion is inconsistent with the delegation to the agency of the determination of its necessity for the data, we reject the ‘‘cost-benefit’’ theory on the same grounds on which we relied to repect the ‘‘appropriateness’’ theory. The Commission and the Comptroller raise several additional issues. Both contend that the Comptroller’s actions under the Federal Reports Act are not subject to judicial review. Their argu- ment is that by limiting the period of time in which the Comp- troller can review regulatory information-gathering forms to 45 days, 44 U.S.C. §3512(d) (Supp. V 1975), Congress intended to preclude judicial review. See Morris v. Gressette, 482 U.S. 491, 97 8.Ct. 2411, 53 L.Ed.2d 506 (1977) ; Harris v. Bell, —— U.S. App. D.C. ——, 562 F.2d 772 (1977). The Commission also suggests that the Comptroller’s clearance function is agency action committed to agency discretion and therefore exempt from judicial review under the Administrative Procedure Act, 5 U.S.C. § 701(a) (2) (1976). The District Court rejected this argument, 432 F.Supp. at 207-308. But see General Electric Co. v. FTC, 411 F.Supp. 1004, 1005 (N.D.N.Y. 1976) ; Westinghouse Electric Corp. v. FTC, 1976- 1 Trade Cas. 68,815 (S.D. Ohio 1976). The Commission also sug- gests that the express purpose of the Federal Reports Act to pro- tect ‘‘especially small business enterprises,’’ 44 U.S.C. § 3512(a) (Supp. V 1975), excludes the large corporate appellants from the 53 III. Conciusion The judgment of the District Court is affirmed. The cor- porate parties shall comply with the Line of Business and Corporate Patterns Report orders as issued by the Federal Trade Commission within 30 days of the date of this opinion. So ordered. Act’s zone of interest, thereby depriving them of standing to chal- lenge the Comptroller’s clearance of the LB form. See Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L.Ed 2d 192 (1970). Finally, the Commission contends that the challenge to the Comp- troller’s clearance is not properly raised as a defense in an en- forcement proceeding, FTC v. Texaco, Inc., supra note 90, 180 U.S.App.D.C, at 407, 555 F.2d at 879. Since we conclude that the arguments made by the corporations with respect to the Comp- troller’s exercise of his review and clearance authority under the Federal Reports Act are clearly lacking in merit, we need not consider the various theories propounded by the FTC and the Comptroller. 54 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Master Fire Misc. No. 76-0126 In Re FTC Corporate Patterns Report Litigation, Tuts Document Reuates To: Aut Actions—MastTErR Fie ONLY Master Fire Misc. No. 76-0127 In Re FTC Liye or Business Report Litication Txuis Document Reuates To: Aut Actions—MastTer Fitz OnLy (Filed January 31, 1977) Memorandum Opinion and Order This matter arises before the court in a number of con- solidated enforcement and preenforcement cases. These ac- tions concern the Federal Trade Commission’s information- gathering activities in connection with the Line of Business Program (LB) and the Corporate Patterns Report Survey (CPR). The consolidated cases include the FTC’s enforce- ment action against various corporations that have failed to comply with Commission orders requiring them to file the 1974 Form LB,’ the FTC’s enforcement action against various corporations that have failed to comply with Com- mission orders requiring them to file CPR forms,’ pre- enforcement actions concerning the LB Program filed against the FTC, certain FTC Commissioners, and the Comptroller General by a number of companies in the Dis- trict of Delaware later transferred to this court, preenforce- ment actions concerning the CPR Survey filed against the FTC, certain FTC Commissioners, and the Comptroller General by a number of companies in the District of Dela- ware later transferred to this court, and similar actions concerning the LB Program and the CPR Survey originally filed in the Southern District of New York and later trans- ferred to this court. 1FTC v. A. E. Staley Mfg. Co., Mise. No. 76-0080. *FTC v. Air Products & Chemicals, Inc., Mise. No. 76-64. ’ a) Pursuant to this court’s order of July 30, 1976, the parties have completed the filing of and opposition to all motions that should be decided by the court at this time. In addition, the parties have submitted outlines detailing the discovery or evidentiary hearings they believe neces- sary before the court can rule on the merits of a claim or defense. In light of the volume of the pleadings in this case,® the court could not hope to grapple with all the pending motions at one time. Accordingly, the court held an oral hearing on four pending motions on January 7, 1977: the corporate parties’ motion to dismiss the LB and CPR enforcement actions, the FTC’s motion to dismiss the LB and CPR preenforcement actions, the Comptroller Gen- eral’s motion to dismiss the LB and CPR preenforcement actions, and the FTC’s motion for a more definite state- ment of counterclaims. Each motion is discussed in turn, and an appropriate order follows this memorandum opinion. I. Corporate Parties’ Motion to Dismiss The corporate parties move to dismiss the enforcement actions concerning the LB and CPR orders for lack of juris- diction. The corporate parties proffer three basic argu- ments in support of their motion: (1) the FTC can obtain mandatory relief only through a civil action pursuant to the Federal Rules of Civil Procedure, and the court thus has no matter pending; (2) the FTC must bring any en- forcement claims against preenforcement plaintiffs as com- pulsory counterclaims; and (3) the court does not have personal jurisdiction over several respondents in the en- forcement proceeding. For the reasons set forth below, the court must deny or defer the corporate parties’ motion to dismiss. *The court wishes to note that the parties have simplified the court’s task enormously by submitting consolidated pleadings wherever possible. 56 A. Cwil Action v. Summary Procedure The corporate parties contend that the FTC can obtain relief in the enforcement proceedings only through insti- tution of a normal civil action pursuant to the Federal Rules of Civil Procedure. The FTC has not followed the usual complaint-summons-service procedure for institution of a civil suit; instead the Commission has employed a peti- tion-show cause order approach, purportedly under the authority of section 9 of the Federal Trade Commission Act.‘ Its goal is a mandamus remedy under that section. The corporate parties’ argument on the ability of the FTC to obtain a mandamus remedy in a special reports order case under section 9 is a simple one. They contend that Rule 81(b) of the Federal Rules of Civil Procedure,‘ abolishing the writ of mandamus, must control over any in- consistent practice under section 9 predating the adoption of the Rules. Indeed, section 1 of the Rules Enabling Act, 28 U.S.C. § 2072, provides that all ‘‘laws in conflict with such rules shall be of no further force or effect ....” This argument correctly states the law, but does not go far enough. Rule 81(b) merely abolished the writ of manda- mus and not the remedy; mandamus relief now is available ‘‘by appropriate action or by appropriate motion.’’ The effect of Rule 81(b) therefore is not earthshaking since it * Section 9, 15 U.S.C. § 49, provides in relevant part : Upon the application of the Attorney General of the United States, at the request of the Commission, the district courts of the United States shall have jurisdiction to issue writs of man- damus commanding any person, partnership or corporation to comply with the provisions of sections 41 to 46 and 47 to 58 of this title or any order of the Commission made in pur- suance thereof. * Rule 81(b) provides: The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be ob- tained by appropriate action or by appropriate motion under the practice prescribed in these rules. 57 merely substitutes in place of the writ practice an action or motion under the Rules. 7 J. Moore, Federal Practice Par. 81.07, at 81-96 (2d ed. 1975). The corporate parties attempt to complete the circle of their argument by noting that a motion or action for mandamus must occur, in light of Rule 81(b), within the context of the Rules. They argue that the FTC has neither commenced an action nor made a motion under the Rules. To commence an action requires a complaint and summons, and to make a motion requires a pending case, in the corporate parties’ view. This argu- ment holds some logic and appeal, but the issue does not reach this court as a question of the first impression. The corporate parties concede that the FTC may obtain summary enforcement of its subpoena orders. They con- tend, however, that Rule 81 contemplates separate treat- ment for subpoena order enforcement. Indeed, Rule 81(a) (3) leaves some discretion in the court in subpoena cases.° The corporate parties admit that a court has the ‘‘discre- tion to be flexible’’ in the application of the Rules to sub- poena enforcement cases. They note that the Rules contain no similar allowance rendering the application of the Rules discretionary when mandamus relief is sought, however; the express authorization of Rule 81(a)(3) renders sub- poena cases inapposite to the mandamus cases facing the court here. Again, the corporate parties have presented a logical argument,’ but there exist a number of cases pur- ® The final sentence of Rule 81(a) (3) provides: These rules apply to proceedings to compel the giving of testi- mony or production of documents in accordance with a sub- poena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by the rules of the district court or by order of the court in the proceedings. (emphasis supplied) *The FTC places great reliance on the parallel treatment ac- corded subpoena enforcement and mandamus enforcement under section 9 of the FTC Act. Indeed, this parallel treatment by Con- gress of subpoenas and orders has continued in the Magnuson-Moss 58 porting to apply a summary procedure in mandamus cases as well as subpoena cases. Courts began to grapple with the question of summary mandamus procedures in enforcement of FTC orders in the case of United States v. Associated Merchandising Corp., 256 F. Supp. 318 (S.D. N.Y. 1966). The court in Associated Merchandising considered the FTC’s attempt to enforce an order ‘‘directing respondents to produce certain documents by way of pretrial discovery”’ in a pending FTC proceeding. In response to the companies’ contention that the FTC could enforce the orders only by commencing a plenary civil action, the court stated: As a general rule, district courts do not issue directions in the nature of mandamus except in aid of jurisdiction already acquired. .. .’ However, where the Court was able to discover a congressional authorization for mse of a writ of mandamus, it approved the issuance oan a petition of a peremptory writ. [citation omitted] By Section 49, [section 9], Congress has expressly con- ferred jurisdiction to issue a writ of mandamus. There- fore, it seems clear that Congress has expressly au- thorized the court to proceed summarily to enforce orders of the Federal Trade Commission for the pro- duction of documents. 256 F. Supp. at 321. The corporate parties attempt to dis- count this case (and indeed cite it as the genesis of later courts’ confusion) on the ground that, although the court spoke of mandamus, it was really simply a subpoena en- forcement action. As such, in the corporate parties’ view, it Warranty-—Federal Trade Commission Improvement Act, Pub. L. No, 93-637, 88 Stat. 2183. Section 204 of the Act amends section 16 of the FTC Act to authorize the Commission to conduct pro- ceedings to enforce subpoenas and section 6 orders. See 15 U.S.C. § 56(a)(2)(D). While this shows evidence of Congressional intent to treat the two remedies similarly, it does not answer the cor- porate parties’ Rule 81(b)-Rule 81(a)(3) dichotomy argument. 59 was subject to the undisputed Rule 81(a)(3) exception, al- though the court mistakenly cited Rule 81(b). The FTC draws a distinction between a subpoena and an order to produce documents,* but fails to explain any essential dis- tinction or significance to any such difference. Later cases held some light on the issue allegedly con- fused in Associated Merchandising. In Federal Trade Com- mission v. Sherry,’ Judge Robinson of this court, citing Associated Merchandising with approval, held that admini- strative subpoenas are enforceable by way of summary proceeding under the discretionary authority of Rule 81(a) (3). The corporate parties distinguish this case as another subpoena enforcement case. In Federal Trade Commission v. Jorgenson,” Judge Gasch of this court rejected an argu- ment, in the context of an FTC subpoena and order requir- ing access to particular files, that the FTC could not en- force its subpoena by way of a summary proceeding. The court cited nine cases to support its conclusion that ‘‘[a] summary proceeding suffices.’’ Slip opinion, at 2 n. 2. While the corporate parties distinguish this case and all but one of the cases cited therein as subpoena enforcement cases, the court in Jorgensen twice referred to the action as in- volving a subpoena and order. Slip opinion, at 1, 1 n. 1. Finally, in Emerson Electric Co. v. Federal Trade Commis- sion," Judge Pratt of this court considered a claim similar to that made by the corporate parties in this case and re- jected it as being ‘‘devoid of merit.’’ In one notable case cited by the parties, this issue was present but, so far as the court can determine, was not *The FTC likens its procedures to those involved in a Rule 45 subpoena and a Rule 34 order to produce documents. * 1969 Trade Cas. Par. 72,906 (D.D.C. 1969). 1° Misc. No, 75-46 (D.D.C. May 16, 1975). ™ Mise, No, 76-0002 (D.D.C. July 21, 1976). 60 briefed, argued, or considered. In United States v. Litton Industries, Inc.,* the Ninth Cireuit considered FTC orders to file special reports and subpoenas duces tecum concern- ing the effects of corporate mergers. The court suggested that an enforcement proceeding pursuant to section 9 of the FTC Act was proper, without comment on the form that proceeding should take.” The corporate parties’ job in attempting to blunt the weight of judicial authority on this question is an unen- viable one. They have asked the court to ignore a unani- mous string of cases allowing a summary procedure on the grounds that these cases concerned inapposite subpoena enforcement, did not adequately consider the issue, or were just plain wrong. This court does not read these cases as unconvineedly as do the corporate parties. There is no debate that this issue was at least brought to the court’s attention in Jorgenson, and that the court treated it as a disputed issue. Similarly, the court enforced the FTC’s orders in Associated Merchandising under the mandamus provisions of section 9 irrespective of whether it was in fact a subpoena that the FTC sought to enforce. That court explicitly considered the relationship between a mandamus under section 9 and Rule 81(b). That conclusion was cited with approval by the court in Sherry. See 1969 Trade Cas. at 87,455. The same challenge was made by the corporate parties here was considered and rejected by the court in Emerson Electric. In all, the court finds a respectable amount of authority for the proposition that the FTC can proceed in mandamus enforcement actions by way of sum- mary proceeding. _--—— 12 462 F.2d 14 (9th Cir. 1972). 13 The FTC suggests that the court infer approval of the practice from the court’s silence on the summary proceeding issue, because the question goes to subject matter jurisdiction, into which a court should inquire sua sponte if necessary. However, it is more prob- able that any courts permitting the practice without comment simply were unaware of the sophisticated argument presented here by the corporate parties. 61 Moreover, the logic of the corporate parties’ Rule 81(b) argument is hardly airtight. The rule merely substituted a motion or action practice for the existing writ practice. The corporate parties candidly admit that before 1946, the date the subpoena exception sentence was added to Rule 81(a) (3), the Rules were considered to have only limited appli- cation to enforcement proceedings, which were not plenary in nature. 7 J. Moore, Federal Practice Par. 81.06[1], at 81-84 (2d ed. 1975). There exists as much a logical basis to assume that Congress, in amending the rule concerning subpoena enforcement, desired to leave existing practice in other enforcement actions unchanged as there is to assume that Congress by its silence meant to subject all enforce- ment proceedings to the full panoply of Rwes require- ments. Authority exists for the proposition that an action seeking relief in the nature of mandamus may be com- menced by motion or petition when there is no pending action. 7 J. Moore, supra Par. 81.07, at 81-96 (citing Asso- ciated Merchandising and Sherry). The court on the whole finds the corporate parties’ argument ingenious, well- briefed, and well-argued, but nevertheless lacking in merit. While not impacting on the court’s decision on the legal issue, the court also is mindful that, as a practical matter, the debate on this question is a tempest brewed in a rather small teapot. Even if the court accepted the corporate parties contention that the FTC had to commence a normal plenary civil action under the Rules, that conclusion simply would force the FTC to file a complaint and begin again. The ensuing delay makes little sense to the court: the FTC has filed a petition instead of a complaint and has pro- ceeded by show cause order rather than summons. The cor- porate parties point to no prejudice flowing from this pro- cedure and, indeed, appear to recognize that the two have operated in this case as functional if not legal equivalents. In fact, the corporate parties offered to accept the petitions as complaints if the court makes ‘‘clear that the filing of a complaint was essential to the Commission’s request for re- 62 lief.’’ Respondents’ Reply Memorandum, at 5-6. The court declines, for the reasons stated above, tn accept the condi- tion to the corporate parties’ concession.** But the fact that the corporate parties have offered to proceed despite this alleged defect in the commencement of the actions further demonstrates that they have been denied no procedural rights because of the FTC’s course of action. B. Compulsory Counterclaims The corporate parties’ second argument in support of its motion to dismiss is that the FTC must bring any en- forcement actions against preenforcement plaintiffs as com- pulsory counterclaims. Having failed to assert the enforce- ment actions as counterclaims to the pending preenforce- ment actions, the court should dismiss them under the au- thority of Rule 13(a). Rule 13(a) provides, in part: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. The corporate parties contend that the compulsory counter- claim provisions of Rule 13(a) clearly apply to the instant actions; ** since the subject matter of the enforcement ac- tion without doubt arises out of the same ‘‘transaction or 1*The corporate parties also ask the court to ‘‘direct the Com- mission to file proper pleadings in such matters in the future.’’ Reply, at 6. This, the court would not do in any case, since future cases obviously are not now before the court and the court should not render advisory opinions. 1® Rule 13(a) applies generally to the United States and its agencies. TOP, Inc. v. Federal Deposit Ins. Corp., 487 F.2d 131 (3d Cir. 1973); 3 J. Moore, Federal Practice Par. 13.25 (2d ed. - 1975). 63 occurrence’’ that forms the basis for the preenforcement actions,’* Rule 13(a) required assertion of these claims as counterclaims to the preenforcement actions. In addition to the clear requirements of the rule, the corporate parties argue that sound policy considerations support application of the compulsory counterclaim rule in this instance.” The FTC opposes this argument on the ground that, even if Rule 13(a) applies, the time has not yet come for the FTC to file its counterclaims. The FTC has moved to dis- miss the preenforcement actions, and this court has not yet ruled on this motion. Under paragraph 10 of this court’s July 30, 1976 order, answers are not due until 30 days after notice of the court’s denial of the motions to dismiss. Thus the FTC is not yet required to file its answers, much less its counterclaims. The corporate parties seek to avoid this contention on two grounds. First, they argue that the Commission cannot raise this challenge again because the motion to dismiss already has been adversely determined to the FTC by the Delaware district court and the Third Circuit, and that decision has become the law of the case for this court. This argument plainly is without merit; not only may circumstances have changed since those opinions were written, but also they concerned the 1973 LB orders and not the 1974 orders here at issue. Second, the corporate parties contend that the duty to assert a compulsory coun- terclaim is only postponed by a motion to dismiss, and con- tinues unless the motion is granted. A claim becomes non- **A number of tests have been used to determine the same “‘transaction or occurrence’’ test. See Pipeliners Local 798 v. Ellerd, 503 F.2d 1193, 1198 (10th Cir. 1974); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1410, at 42 (1971). **The corporate parties quote a passage from Columbia Plaza Corp. v. Security Nat’l Bank, 525 F.2d 620, 626 (D.C. Cir. 1975), relating to the conservation of judicial resources under Rule 13(a) by eliminating duplicate proceedings. Since the enforcement and preenforcement cases have been consolidated in this court, however, judicial economy problems have been minimized. 64 compulsory only if it was the subject of another pending action at the time the action was commenced. Rule 13(a). This argument does no more than suggest that the counter- claims may be due at some time in the future; in the in- terim, the corporate parties expect the FTC to postpone its separate enforcement actions if it desires to move to dismiss the preenforcements actions. The court does not accept this contention. The court identifies additional reasons to view the cor- porate parties’ claims with some hesitancy. They can cite no cases in which a court has treated an enforcement ac- tion as a compulsory counterclaim, while the FTC cites two in which the argument was rejected. A.O. Smith Corp. v. Federal Trade Commission, 417 F. Supp. 1068, 1088-89 (D. Del. 1976); Federal Trade Commission v. Emerson Elec. Co., Mise. No. 76-0002 (D.D.C. July 21, 1976). The FTC’s enforcement actions involve assertion of rights under a Congressionally mandated enforcement scheme, thus distinguishing the case from the Columbia Plaza case relied on by the corporate parties. See A.O. Smith Corp., supra. Acceptance of the corporate parties’ argument would mean that companies seeking to resist FTC orders might well be able to choose the forum and pace of the litigation simply by bringing preenforcement actions. These pre- enforcement actions could, as here, be brought in more than one forum. The implications of the corporate parties’ contentions might work more to encourage than discourage duplicative litigation, and thus ultimately result in im- peding the policy objectives of Rule 13(a).** The conse- ** The corporate parties suggest that duplicative litigation could be avoided by normal procedures: motions for change of venue and coordination under the guidelines of the Judicial Panel on Multi- District Litigation. This argument does not meet, however, the FTC’s concern at being forced to raise or lose its enforcement claims at the times and places dictated by companies’ preenforce- ment actions. At best, this relief would come at a later time, after the FTC would have been forced to submit to the companies’ timing for asserting enforcement claims. dabd.intinai slide a 65 quences of a ruling in the corporate parties’ favor could be undesirable and unwarranted. C. Personal Jurisdiction A total of eight of the corporate parties assert a lack of personal jurisdiction over them. This claim encompasses two primary contentions: (1) that no summons and com- plaint were issued, an indispensable prerequisite to a court’s assertion of jurisdiction over a party in a civil action; and (2) these corporate parties were served beyond the confines of the District of Columbia despite lack of sta- tutory sanction for such service. The first argument can be handled quite easily, as it amounts to a continuation of the claim that the FTC cannot bring its enforcement actions by petition and show cause order. The court has rejected this argument. See §1(A), supra. The corporate parties cer- tainly have received the notice a summons is designed to provide under the petition-show cause order procedure. A more difficult issue is posed by the corporate parties’ second argument. The FTC effected service in these en- forcement actions by two methods: personal service by a United States Marshal outside of the District of Columbia and service on the D.C. Recorder of Deeds to be mailed to the named respondents. Rule 4(f) of the Federal Rules of Civil Procedure provides that service of process may occur beyond the territorial limits of a state ‘‘when authorized by a statute of the United States or by these rules... .”’ Rule 4(e) authorizes extraterritorial service where ‘‘a stat- ute or rule of court of the state in which the district court it held’’ so provides. The FTC does not argue that a fed- eral statute permits extraterritorial service in the circum- stances of this case; the court therefore will focus on state statutes purporting to allow such service here. The parties agree that the potentially applicable statutes are 13 D.C. Code § 334 and 29 D.C. Code § 933i. The parties further agree that the relevant portions of these two stat- 66 utes require that a corporation be ‘‘doing business”’ in the District of Columbia before it is amenable to service.’* The parties, unsurprisingly, have differing interpretations of what constitutes doing business, however. The corporate parties argue that the FTC must show that each moving company has ‘‘fairly extensive’’ contacts with D.C. in order to sustain jurisdiction for a cause of action not arising out of the company’s activity in D.C. A somewhat higher standard should exist for such an un- connected cause of action than for one arising directly from the company’s contacts with the forum district.” The cor- porate parties go on to contend that the companies must maintain a permanent office in D.C. in order to be subject to service. Corporate Parties’ Memorandum, at 50 n. 76. The court finds this argument to be without merit; foreign corporations often have been found to be doing business in D.C. despite the lack of a permanent office. E.g., Wash- ington v. Hospital Service Plan, 345 F.2d 105 (D.C. Cir. 1965) ; Frene v. Louisville Cement Co., 134 F.2d 511 (D.C. Cir. 1943); Stevens v. American Service Mutual Ins. Co., 234 A.2d 305 (D.C. Ct. App. 1967) ; Key v. 9.C. Johnson & Son, Inc., 189 A.2d 361 (D.C. Ct. App. 1963). The corporate parties also contend that many of the contacts the moving parties might have with the District are maintained for the purpose of interacting with the federal government. They claim the ‘‘government contacts’’ principle protects them See Payton v, Summit Loans, Inc., 253 A.2d 459, 460 n, 1 (D.C. Ct. App. 1969). *° While the parties cite no cases explicitly drawing the distine- tion, it appears implicit in several of the leading cases, See Wash- ington v. Hospital Service Plan, 345 F.2d 105 (D.C. Cir. 1965); Byrd v. Norfolk & Western Ry., 194 A.2d 651 (D.C. Ct. App. 1963) ; Key v. S. C. Johnson & Son, Inc., 189 A.24 361 (D.C, Ct. App. 1963). See generally von Mehren & Trautman, Jurisdiction rd ca A Suggested Analysis, 79 Harv. L, Rev. 1121, 1179 67 from the court’s consideration of these activities in deter- mining amenability to service.” The FTC contends that the court should address the business purpose being served by the moving parties’ pres- ence in D.C. It suggests that the marketing or products in the District, through either solicitation of sales or ship- ment or products, can constitute doing business. See Frene v. Louisville Cement Co., 134 F.2d 511 (D.C. Cir. 1943); Key v. S.C. Johnson & Son, Inc., 189 A.2d 361 (D.C. Ct. App. 1963). Advertising within the District can be con- sidered as a factor. Payton v. Summit Loans, Inc., 253 A.2d 459 (D.C. Ct. App. 1969). The FTC distinguishes two cases relied on by the moving corporate parties ” as hinging on the plaintiffs’ complete lack of contacts with the forum state in those cases.” Here, it notes that the FTC has obvious contacts with the District.” The court is faced with a somewhat difficult task in at- tempting to sort out the various claims of the parties. It appears that solicitution of sales or shipment of goods potentially can qualitfy as doing business. The necessary showing should be at least somewhat higher for an uncon- 21 The government contacts exception had its genesis in Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (D.C. Cir. 1945), and its latest expression in Environmental Research Inter- national, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813-14 (D.C, Ct. App. 1976). 22 Ratliff v. Cooper Labs., Inc., 444 F.2d 715 (4th Cir.), cert. denied, 404 U.S. 948 (1971); Seymour v. Parke Davis Co., 423 F.2d 584 (1st Cir. 1970). 8 See 423 F.2d at 587; Lee v. Walworth Value Co., 482 F.2d 297 (4th Cir. 1973) (distinguishing Ratliff on ground of plaintiffs’ lack of contact with forum district). *4* But see Environmental Research Int’l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 812 (D.C. Ct. App. 1976) (plaintiff’s activities in forum district cannot establish requisite contacts for personal jurisdiction, 68 nected cause of action than for a cause of action arising directly out of a defendant’s activities in the forum district. The government contacts exception potentially applies, depending on the purposes and functions served by those contacts. Within this framework the court can examine the situations of the moving companies to resolve what is es- sentially a factual question about sufficiency of the contacts of each company. The moving corporate parties have submitted affidavits concerning the extent of their contacts with the District of Columbia. On the basis of these, they ask the court to con- clude that no basis for personal jurisdiction over them exists. The court finds these affidavits insufficient. Some neglect to identify the dollar value of goods shipped to the District, some fail to state whether D.C. shipments are a substantial contribution to total sales, some are vague on the question of distributors, detail men, or salesmen and where they are located, and some fail to state conclusively whether any goods are sold in the District at all. From the information now before the court by way of these affidavits, the court preliminarily believes that at least some of these companies have sufficient contacts with the District to qualify as transacting business under 29 D.C. Code § 933i(c). The court nevertheless feels that additional dis- covery would be quite helpful to the court in making these determinations, and it is advised that the FTC has pro- pounded certain interrogatories that could help to resolve this question.” The court therefore will permit this addi- tional discovery and defer decision on this aspect of the corporate parties’ motion to dismiss. With respect to one moving party, Fairmont Foods, there is no need to defer decision. Fairmont admits that it is ** The corporate parties have moved for a protective order as to these interrogatories on the general grounds advanced in their ar- guments on this question. The court will deny that motion for the same reasons it cannot grant their motion to dismiss at this time. 69 authorized to do business in the District, has appointed a registered agent, and received service of process through that registered agent. This service is sufficient to bring Fairmont before the court. 29 D.C. Code § 933i(a). Fair- mont contends, however, that section 933i(a) relates solely to manner of service, not amenability to service. In support of the proposition, Fairmont relies on one D.C. case * which held that the absence of a license to do business does not mean that a company is not in fact doing business, and on one Fourth Circuit case* not purporting to apply any laws of the District. The court does not find these com- pelling precedents for Fairmont’s position. The language of section 933i(a) tracks closely that of section 933i(¢), but no claim has been made that section 933i(c) does not relate to amenability to service. Accordingly, Fairmont’s motion to dismiss on this ground will be denied. II. FTC’s Motion To Dismiss The FTC parties move to dismiss the preenforcement ac- tions concerning the LB and CPR programs. The court has identified four basic arguments advanced by the FTC in favor of this motion: (1) judicial review of the FTC’s exercise of its powers of compulsory process is unavailable by way of preenforcement action where no notice of default has been issued; (2) even if judicial review potentially is available, the corporate parties have failed to meet the standards of the Abbott Labs trilogy; (3) the FTC itself must be dismissed because it has not waived sovereign im- munity in this instance; and (4) sound reasons exist for the court to dismiss the preenforcement actions as a matter of discretion. For the reasons stated below, the court re- jects the first three arguments and wishes to defer a deci- sion on discretionary dismissal. 2° Kelberine v. Societe Internationale, Etc., 363 F.2d 989, 993 (D.C, Cir. 1966), cert. denied, 385 U.S, 989 (1966). 7 Ratliff v. Cooper Labs, Inc., 444 F.2d 745, 748 (4th Cir.), cert. denied, 404 U.S. 948 (1971). 70 A. Availability of Preenforcement Review The FTC contends that judicial review of the validity of the Commission’s exercise of its powers of compulsory process can be had only in an enforcement proceeding brought under section 9 or 10 of the FTC Act where no notice of default has been issued. See St. Regis Paper Co. v. United States, 368 U.S. 208, 226 (1961); Federal Trade Commission v. Claire Furnace Co., 274 U.S. 160, 174 (1927). The court will not deal extensively with this argument, as it was persuasively rejected by the Third Circuit in A.0. Smith v. Federal Trade Commission.” This court fully concurs with the reasoning of that decision on this issue. St. Regis and Claire Furnace must be considered in the context of the more recent Supreme Court decisions in the Abbott Labs trilogy.” As the Third Circuit noted: The fundamental jural lesson flowing from Abbott Laboratories is this: a person aggrieved by final agency action may come to federal court for judicial review ‘so long as [a] no statute precludes such relief or [b] the action is not one committed by law to agency discretion.’ * * * We have examined the FTC Act and find no clear and convincing evidence of a congressional intent to bar judicial review of final FTC orders under Section 6(b). 530 F.2d at 521. For these reasons the court concludes that preenforcement review potentially is available to the cor- porate parties in this situation. 28 530 F.2d 515, 519-21 (3d Cir. 1976). ? Abbott Labs v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967). *°Tt is not entirely clear to the court whether the FTC makes this as a separate legal argument or as an adjunct to its argument on discretionary dismissal. The court will deal with it as a separate legal argument and in connection with discretionaray dismissal. 71 B. Application of Abbott Labs The FTC also appears to argue that, even if judicial review potentially is available, the corporate parties no longer, if they ever did, meet the standards set forth in the Abbott Loads trilogy for a court’s exercise of preenforce- ment jurisdiction.” Justice Harlan focused on two ques- tions in Abbott Labs: the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 387 U.S. at 148-49. The FTC notes that the hardship to the parties in awaiting judicial determina- tion of their claims in an enforcement proceeding now is minimal. Since no notice of default has been issued, the cor- porate parties face no civil or criminal penalties for non- compliance. Indeed, the corporate parties no longer are on the horns of a dilemma in attempting to decide whether to comply or face stiff penalties; the risks of noncompliance are ephemeral.” The problem with tkis approach is that Abbott Labs es- sentially involves a ripeness inquiry. See 387 U.S. at 148-49. There no longer exists serious doubt as to whether these preenforcement actions are ripe in the Abbott Labs sense. Enforcement actions have been commenced; the issues have been concretely framed. This court’s subject matter jurisdiction is established by 28 U.S.C. §§ 1331, 1337. For these reasons there is no point in the court reconsidering the hardship issue under the Abbott Labs analysis, and no reason to dismiss on this ground. C. Sovereign Immunity The FTC has moved to dismiss itself as a defendant in the preenforcement actions on the ground that sovereign immunity bars a suit against a federal agency eo nomine unless Congress has granted such a right against the * See A.O. Smith v. FTC, 417 F. Supp. 1068, 1082-85 (D.Del. 1976). 72 agency. The FTC claims that here no such authorization has occurred. While the FTC may be correct in its state- ment of the law,” it is incorrect in asserting that no Con- gressional authorization for such a suit exists. In Scanwell Laboratories, Inc. v. Shaffer,” the District of Columbia Cir- cuit held that the judicial review provisions of the Ad- ministrative Procedure Act serve to waive sovereign im- munity: It seems axiomatic to us that one must imply, from a statement by the Congress that judicial review of agency action will be granted, an intention on the part of Congress to waive the right of sovereign im- munity; any other construction would make the review provisions illusory. While the APA should not be interpreted to constitute a waiver of sovereign immunity in suits seeking money dam- ages against the United States,” in the context of this case the court is convinced that the judicial review provisions of the APA have waived the FTC’s sovereign immunity claim, and the court accordingly rejects that argument. D. Discretionary Dismissal Finally, the FTC suggests that the court should exercise its discretion to dismiss the preenforcement actions. It asserts that the pending enforcement actions present a 32 E.g., Economou v. Department of Agriculture, 535 F.2d 688, 690 (2d Cir. 1976) ; Midwest Growers Coop. Corp. v. Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976). 88 424 F.2d 859 (D.C. Cir. 1970). 547d. at 874. %8 See Scanwell Labs. Ine. v. Thomas, 521 F.2d 941, 948 (D.C. Cir. 1975). ** See Emerson Elec. Co. v. FTC, Civ. No. 74-746 (D.D.C. July 21, 1976) (Pratt, J.) (preenforcement claims may be raised as de- fenses in enforcement proceeding. 73 wholly adequate forum for the corporate parties to raise any defenses and claims they might have concerning the LB and CPR programs.” It views the preenforcement ac- tions as unnecessary baggage for the court to carry in light . of the statutory enforcement actions. The FTC assures the court that no prejudice to the corporate parties will flow from a dismissal," The corporate parties oppose on several grounds. First, since all the enforcement and preenforcement actions have now been consolidated before this court, no risk of duplica- tive judicial efforts exist. Second, they prefer consideration of the issues raised by the LB and CPR programs within the context of a normal civil action, in which no doubts exist as to discovery or judicial review. Finally, the cor- porate parties suggest that there simply is no need to dis- miss at this point of the proceedings, and that the court should avoid needless rulings. In light of the fact that both the preenforcen.cot and enforcement actions have been consolidatd, and in light of the fact that counsel for the FTC stated in oral argu- ment that the Commission does not seek an immediate deci- sion on this motion, .ae court will defer consideration of the motion to dismiss.” At a later time the court may be in a better position to determine this issue, and later rulings **The court tends to agree with the FTC on this point. Dis- covery would be narrowly circumscribed in either action, so the corporate parties would lose nothing by way of discovery. The other identified concern of the corporate parties—the scope of the court’s review of the programs—promises to be an important issue regardless of in which action the court considers it. %°The court need not defer consideration of whether to dismiss preenforcement claims relating solely to the 1973 LB orders. As Judge Schwartz noted, those claims are movt. A.O. Smith v. FTC, 417 F. Supp. 1068, 1074 (D. Del. 1976). This conclusion does not affect claims challenging the 1974 LB orders that relate to the development and implementation of the entire LB program, how- ever. 74 by this court on other issues may render the court’s task simple indeed. By deferring consideration of this motion, the court will be able to consider both summary judgment motions pending in these actions—and all arguments on the merits contained therein. Thus the court will deny the FTC’s motion to dismiss on the three legal grounds asserted and defer consideration of a discretionary dismissal. III. Comprrotier GeneraL’s Motion to Dismiss The Comptroller General moves to dismiss the preen- forcement actions on the ground that the actions of the Comptroller General pursuant to the Federal Reports Act, 44 U.S.C. § 3512, are not judicially reviewable.” The Comp- troller General presents two primary arguments in support of that conclusion: (1) Congress intended to preclude ju- dicial review of the Comptroller’s decisions under the Act; and (2) the corporate party plaintiffs have an adequate alternative remedy in court. Because the court rejects both these arguments for the reasons stated below, the Comp- troller’s motion to dismiss will be denied. A. Congressional Intent to Preclude Review The Comptroller notes that the corporate parties claim a right to judicial review of the LB and CPR program orders under the applicable provisions of the Administra- tive Procedure Act. 5 U.S.C. § 701-06. He contends that the legislative history of the Federal Reports Act demonstrates a Congressional intent that judicial review of his actions under the statute be precluded.** The Comptroller bases *°The Comptroller has moved in the alternative for summary judgment, but the court prefers to consider the other issues raised by the Comptroller at the same time as it considers the other pending summary judgment motions in these actions. *°The APA review provisions do not apply to the extent that “‘statutes preclude judicial review.’’ 5 U.S.C. § 701(a) (1). 75 his conclusion that Congress took the unusual step of pre- cluding judicial review on two major grounds. First, he notes that the purpose of the Act was to prevent the ‘‘delay and obstruction’’ that occurred when the Office of Manage- ment and Budget, advised by the industry-oriented Busi- ness Advisory Council, held the clearance function for inde- pendent regulatory agencies’ special reports. Congress transferred this clearance power to the General Accounting Office to prevent the undue impairment of independent regulatory agencies’ data collection efforts. Although the Comptroller correctly discerns the motivation stirring Con- gress to passage of this statute ** he fails to draw a viable link between this policy goal and a statutory preclusion of judicial review. Second, the Comptroller argues that since the GAO has only 45 days in which to perform the review function, after which the agency may proceed, the conclusion that Congress intended to preclude judicial re- view is further enhanced. The Comptroller admits, however, as he must, that there exists a presumption in favor of judicial review. This strong presumption can be overcome only ‘‘upon a show- ing of ‘clear and convincing evidence’ of a contrary legisla- tive intent... .’’ ** The Comptroller has failed to meet this heavy burden in this instance. At best, a court could in- directly imply from Congress’ obvious desire to prevent undue delays an intent to protect the Comptroller’s actions from judicial scrutiny. This tenuous link, however, does not constitute clear and convincing evidence of Congressional intent to preclude judicial review; Congress was silent on the matter, and the presumption of reviewability must apply. “' See H.R. Rep. No. 624, 93d Cong., 1st Sess. 31 (1973) (Con- ference Report). “744 U.S.C, § 3512(d). *? Dunlop v. Bachowski, 421 U.S. 560, 567 (1975), quoting Ab- bott Labs. v. Gardner, 387 U.S. 136, 140 (1967). 76 B. Adequate Alternative Remedy The Comptroller also contends that the corporate parties have an adequate alternative remedy in court against the FTC. Agency action is made reviewable under the APA when ‘‘there is no other adequate remedy in a court... .’’ “ This argument relies on the Comptroller’s conception of the goals the corporate parties seek in pursuing this litiga- tion. Since the corporate parties seek to prevent implemen- tation of the LB and CPR programs and raise many of the same issues against the FTC that they raise against the GAO, the Comptroller reasons that a remedy against the FTC would be sufficient. He suggests that the ultimate re- lief sought by the corporate parties, a prohibition on the use of the LB and CPR forms, can be obtained from the FTC alone. The court is not much impressed by this argument. The Comptroller makes no claim that there is another adequate proceeding in court by which the corporate parties can ob- tain direct review of the Comptroller’s actions. Only in- directly could the corporate parties challenge the actions of the Comptroller if he is dismissed from the preenforce- ment actions. Nothing in the APA precludes review of the actions of two agencies that acted in concert merely because relief may be available against one of them.“ Additionally, it makes sense for the court to have before it the agency whose actions are challenged so that its views may be fully presented.** Moreover, relief against the FTC certainly #5 U.S.C. § 704. ** The Comptroller claims, however, that section 704 requires only an adequate alternative remedy, not necessarily an adequate alter- native remedy against the same party. He cites for this proposition no cases dealing directly with this question, though, and the court feels that the adequacy of the alternative remedy necessarily is partly determined by whether it can be obtained against the same party. “© Cf. Air Products & Chemicals, Inc. v. United Gas Pipe Line Co., 503 F.2d 1060, 1062 (Temp. Emer. Ct. App. 1974). 77 does not necessarily mean relief against the Comptroller General; for example, if the court should decide that the corporate parties should prevail on an issue unrelated to the Federal Reports Act, when the court would need make no determination on the question of the Comptroller’s ac- tions. In all, the Comptroller has not presented a convinc- ing case for dismissal on the ground that an adequate alternative remedy in court exists. IV. FTC’s Morton ror More Derrnite STaTeMENT or CoUNTERCLAIMS The FTC moves the court to require a more definite statement of the counterclaims asserted by the corporate parties in the enforcement actions. The corporate parties, in their answer to the Commission’s enforcement position, have incorporated as counterclaims all claims asserted by all parties in the preenforcement actions.” The FTC ob- jects to this shotgun approach “* to pleading counterclaims on several grounds, and desires a more definite statement before framing a responsive pleading. First, the FTC argues that it is unclear whether the corporate parties intend to do more than assert affirma- tively their claims concerning the validity of the actions taken by the FTC and the GAO. If not, the Commission reasons, these are simply improperly denominated de- fenses and require no reply; if so, the FTC will have to respond. There is little doubt in the court’s mind that the corporate parties’ counterclaims seek affirmative relief against the FTC and GAO in the form of declaratory judg- ments and permanent injunctions. *" Preenforcement plaintiffs incorporate all claims they have as- serted while respondents not involved in the preenforcement cases incorporate all claims of all preenforcement complaints. **The FTC asserts that there are 44 preenforcement actions and 30 intervention complaints in the LB litigation, and 23 preenforce- ment actions and 24 intervention complaints in the CPR litigation. 78 Second, the FTC contends that the counterclaims resur- rect dead issues, insofar as they seek to assert claims not addressed by the corporate parties in their pleadings be- fore this court. Although the FTC believes that claims not raised in the partial summary judgment motion or discov- ery outline have been waived, the court has decided to the contrary. Order of November 4, 1976. Finally, the FTC argues that the counterclaims are vague and ambiguous. Many of the corporate parties were not involved in the preenforcement actions, and wide differ- ences in those complaints exist. Many could not have joined in all the claims because of factual differences, failure to exhaust administrative remedies, and other reasons. The FTC’s objection to the validity of the counterclaims, how- ever, should nvt be an important factor in a motion for a more definite statement. If some parties cannot sustain cer- tain claims for the reasons mentioned by the Commission, those arguments can be raised by the FTC in its responsive pleading. | The court is of the opinion, however, that in some re- spects the counterclaims fail as ‘‘short and plain state- ment[s]’’ of the claims asserted.” Where such a large number of preenforcement complaints and motions to in- tervene have been filed, at the least the corporate parties should present a single list of all the claims they wish to assert as counterclaims, rather than put the burden of finding and answering each of the preenforcement com- plaints on the Commission. The court would itself prefer to work with a single listing of all counterclaims. The court hopes tha. the corporate parties will exercise judgment in compiling this single list, so that identical claims are con- solidated and obviously unmeritorious or moot claims (such as those concerning only the 1973 LB orders) are elimi- nated. /8/ Tuomas A. FLANNERY Unirep States Disraror Jupaz Dated: January 21, 1977 FR. Civ. P. 8(a). 79 (Caption OmiTTEeD IN PRINTING) (Firep January 31, 1977) Order In accordance with the attached Memorandum Opinion, it is, by this court, this 21st day of January, 1977, Orperep that the corporate parties’ motion to dismiss the enforcement actions be, and the same hereby is, denied, except as to the corporate parties challenging personal jurisdiction (besides Fairmont Foods), as to whom the court defers decision on the motion to dismiss; and it is further OrperepD that the motion for a protective order submitted by the corporate parties challenging personal jurisdiction be, and the same hereby is, denied; and it is further OrvereD that the FTC’s motion to dismiss the preen- forcement actions be, and the same hereby is, denied as to all grounds supporting it other than discretionary dismis- sal, and as to the discretionary dismissal issue the court defers decision; and it is further OrpereD that the Comptroller General’s motion to dis- miss be, and the same hereby is, denied; and it is further OrpereD that the FTC’s motion for a more definite state- ment of counterclaims be, and the same hereby is, granted to the extent that the corporate parties shall submit a master list of all claims asserted by way of counterclaims in the enforcement actions no later than February 4th, 1977. /8/ THomMas A. FLANNERY United States District Judge 80 (Caption Omitrep in Printin@) (Fmep Aprit 12, 1977) Memorandum Opinion The court presently has before it consolidated pre- enforcement and enforcement actions concerning the Federal Trade Commission’s orders directing numerous companies to file certain special reports. At issue are the FTC’s information-gathering activities with respect to the 1974 Line of Business (LB) report and the Corporate Patterns Report (CPR) survey. The. court already has considered various motions to dismiss. Order of Jan. 31, 1977. The FTC and the Comptroller General have moved for summary judgment at this time, while the corporate parties seek partial summary judgment. Oral hearings on these motions were held February 11 and 25, 1977, and the motions are ripe for consideration and decision at this time. The corporate parties challenge the enforcement of the FTC’s orders to file the LB and CPR forms on a number of grounds. The court will consider each of these claims in turn. An appropriate order accompanies this memo- randum opinion. I. Statutory AuTHORITY The corporate parties contend that the FTC lacks the statutory authority to implement the LB and CPR pro- grams. This claim centers on an interpretation of section 6 of the Federal Trade Commission Act, 15 U.S.C. § 46." .* Section 6 provides, in relevant part: The Commission shal] also have power— (a) To gather and compile information concerning, and to investigate from time to time the organization, business con- duct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting banks and common earriers subject to the Act to 81 While the corporate parties admit that section 6 relates to the general power of the Commission to conduct in- vestigations, require special or annual reports, and pub- lish the results of its investigations, they argue that section 6 is not an unfettered grant of authority to con- duct any type of investigation or information-gathering project. To the corporate parties, section 6 grants the authority to investigate, so long as the investigation is related to the FTC's enforcement authority, but does not grant the power to conduct statistical reporting programs. In support of this proposition, the corporate parties offer an imaginative interpretation of the legislative history of the Act and relevant judicial decisions. The linchpin of the corporate parties’ argument is that the LB and CPR programs are not focused investigations. If not investigations, they contend, then the section 6(b) special report orders do not relate to the Commission’s section 6 (a) power of investigation and do not relate to the Commission’s quasi-judicial powers under section 5 of the Act. Since the FTC admits that the LB and CPR regulate commerce, and its relation to other persons, partner- ships, and corporations. (b) To require, by general or special orders, persons, part- nerships, and corporations, engaged in or whose business affects 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, prac- tices, management, and relation to other corporations, partner- ships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shal] be made under oath, or other- wise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commis- sion may prescribe, unless additional time be granted in any ease by the Commission. 82 programs are broad-based and not aimed simply at sus- pected violators, the corporate parties reason that they cannot qualify as legitimate investigations. Instead, these statistical reporting programs are more in the nature of a fishing expedition; the corporate parties charge that without a direct link to the Commission’s substantive responsibilities these section 6(b) orders could intrude indiscriminately into the private domain. The corporate parties suggest that the legislative his- tory of the FTC Act supports the view that section 6 was intended only as an aid to section 5 powers. Without exhaustively repeating the arguments of both the cor- porate parties and the FTC on this question, the court can reject the corporate parties’ claim to the extent that it suggests the FTC was intended to be only a quasi- judicial agency with information-gathering powers nar- rowly limited to its quasi-judicial functions.* The corpo- rate parties bottom their argument on a statement by Senator Newlands, made after the enactment of the Act, that the FTC’s exercise of its investigatory powers would be limited to those suspected of violating the law.’ Apart from the problem of personal, post-hoc explanations as legislative history, a fair reading of the legislative history does not support that view.‘ First, the FTC was intended to assume, inter alia, the powers formerly held by the Bureau of Corporations, a research and investigatory agency with no law enforcement powers. H.R. Rep. No. 1142, 63d Cong., 2d Sess. 18 (1914) (conference report). 2 This argument is based, in part, on the claim of ascendancy of the Senate bill over the House bill in the final enactment of the Act. 3 Newlands, The Federal Trade Commission Bill, Am. Rev. of Reviews 477, 479-80 (Oct. 1974). Senator Newlands also made a similar statement on the floor, but there is a question whether he later retracted that statement. 51 Cong. Rec. 11110 (1914). ‘See generally Handler, Constitutionality of Investigations by the Federal Trade Commission, 28 Colum. L. Rev. 708 (1928). 83 Second, while the conferees did indeed rely largely on the Senate bill, they exhibited no intent to cut down the broader powers present in the House bill.’ Finally, state- ments made by Senator Newlands himself suggest that the FTC would have vast discretion in determining its special reports needs.* In short, the legislative history does not support the corporate parties’ claims. The corporate parties next rely on their interpretation of several eases. The corporate parties attempt to dis- tinguish the most important of these cases, United States v. Morton Salt Co., 338 U.S. 632 (1950), on the ground that Morton Salt decided only the question of whether a section 6 special report order could be used in aid of the Commission’s section 5 quasi-judicial powers; it did not decide whether a section 6 order can fly “solo.” In- deed, the corporate parties correctly state the holding of that case.’ Yet the proper inference to be drawn from Morton Salt, in this court’s opinion, is that section 6 orders can be used both in aid of section 5 responsibilities and in support of general economic reports. The Court rejected an argument made there that section 6 reports “can be required only ‘in support of general economic surveys and not in aid of enforcement proceedings under Section 5.’”* The Court characterized the special report provision as enabling the Commission to elicit “any in- formation” beyond the normal data of an annual report.° The corporate parties also cite FTC v. American Tobacco Co., 264 U.S. 298 (1924). There the Supreme Court re- jected the FTC’s claim that sections 5 and 6 permitted the Commission an unlimited right of access to the to- ° Td, at 732. * E.g., 51 Cong. Ree. 11182 (1914). * 338 U.S. at 649. ® Td. at 649, * fd. at 650. R4 baceo companies’ papers and files.** Not even the corpo- rate parties claim this early case to be directly applicable to the present circumstances, however; the FTC here does not seek unlimited access. Two lower court rulings also bear on the issue, in the corporate parties’ minds. FTC v. Claire Furnace Co., 385 F. 936 (D.C. Cir. 1923), rev'd 274 U.S. 160 (1927); United States v. St. Regis Paper Co., 181 F. Supp. 862 (S.D.N.Y.), aff'd in part & rev'd in part, 285 F.2d 607 (2d Cir. 1960), aff'd, 368 U.S. 208 (1961). Yet the D.C. Circuit in Claire Furnace considered the question of the FTC’s power to investigate in the context of whether “interstate commerce” was shown, and did not consider the issue presented here. The district court in St. Regis did comment on the scope of section 6(b) orders with respect to material not kept in the regu- lar course of business, but its conclusion was endorsed neither by the Second Circuit nor by the Supreme Court. Thus the case relied on by the corporate parties present far from a compelling argument for lack of statutory authority. Having found the corporate parties’ interpretation of the legislative history and caselaw unconvincing, the court additionally finds the plain wording of section 6(b) to sus- tain the statutory authority of the Commission to act with respect to LB and CPR. That section permits the Commission to “require, by general or special orders, .. . [companies] to file with the Commission in such form as the Commission may prescribe annual or special... reports. . . .” 15 U.S.C. §46(b). This express authoriza- tion certainly appears to include the special reports sought in the LB and CPR orders. On the basis of this clear wording, Judge Schwartz found no probable merit to the corporate parties’ similar claim for the 1973 LB orders." While some limit may exist to the FTC’s power ‘© 264 U.S. at 305-07. ‘1A O. Smith Corp. v. FTC, 396 F. Supp. 1108, 1120-21 (D. Del. 1975), rev’d on other grounds, 530 F.2d 515 (3d Cir. 1976). 85 to require special reports under section 6(b), that issue does not really arise where, as here, even the corporate parties admit that the programs are at least indirectly connected to the Commission’s law enforcement efforts.” Nothing in the statute, legislative history, or caselaw supports the corporate parties’ alternative claim that sec- tion 6 authority may be exercised only in contemplation of specific law enforcement activity.* The court thus con- cludes that the FTC acted within its statutory authority in implementing the LB and CPR special reports pro- gram. IT. Rutemakinc Unver tHE APA The ccrporate parties claim that the LB and CPR programs constitute rulemaking within the meaning of the Administrativ~ Procedure Act (APA) and that the FTC violated the applicable APA provisions concerning rulemaking. This claim presents two separate issues: whether the programs constitute rulemaking, and, if so, whether the FTC complied with the APA rulemaking requirements. The APA defines a ‘‘rule’’ as the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, cor- *? The Commission states its hope to use LB data to focus its law enforcement efforts more effectively, and to use CPR data to pro- vide a data base to be used by the FTC in formulating overall en- forcement policy and in investigating and proceeding against par- ticular law violations. ** This argument derives, no doubt, from the corporate ies’ " > parties belief that the LB and CPR programs are merely statistical report- ing programs, not focused on ascertainment of possible violations of law. This view is not wholly justified. See note 12 supra. 86 porate or financial structures or reorganizations there- of, prices, facilities, appliances, services or allow- ances therefor or of any valuations, costs, or account- ing, or practices bearing on any of the foregoing. 5 U.S.C. §551(4). Rulemaking is defined as “agency proc- ess for formulating, amending, or repealing a rule.” Id. § 551(5). The corporate parties contend that the LB and CPR programs“ fall within this statutory definition and thus qualify as rulemaking. The APA identifies several components of a rule: it must be of “general or particular applicability ;” it must be of “future effect;” and it must be designed to “implement, interpret, or prescribe law or policy.” The court first will consider whether the LB and CPR programs implement or prescribe law or policy. The corporate parties contend that the LB and CPR programs implement or prescribe law or policy in two ways. First, as Judge Schwartz found with respect to the 1973 LB orders in granting a preliminary injunction to the corporate parties, the “far-reaching directives .. . effectively prescribe the manner in which business records are to be kept for reporting purposes. . . .” A.O. Smith Corp. v. FTC, 396 F. Supp. 1108, 1123 (D. Del. 1975), rev'd on other grounds, 530 F.2d 515 (3d Cir. 1976). In- deed, if the FTC has prescribed accounting methods, it has engaged in rulemaking since the definition of a rule “includes the approval or prescription for the future of . .. valuations, costs, or accounting, or practices bear- ing on any of the foregoing.” 5 U.S.C. §551(4). The cor- 1* The corporate parties have not been entirely clear about which aspects of the two programs they consider to be ‘‘agency state- ment’’ under the APA. In their papers, the corporate parties appear to characterize the whole programs as the ‘‘statement’’. At oral hearing on this question, counsel for the corporate parties defined the relevant ‘‘statement’’ as ‘‘all of the FTC’s minutes, resolutions, and statements, which in combination’’ reflect the two programs. 87 porate parties suggest that the data sought by the Com- mission is not available from the books and records of most firms; the internal organization of most businesses does not correspond to the uniform category system en- visioned by the LB reports. The court cannot agree that the 1974 LB orders, the CPR orders, or the programs have effectively prescribed accounting methods or prac- tices with respect to business records maintained for re- porting purposes. Certainly the FTC has not actually prescribed new accounting methods. Rather, the corpo- rate parties’ argument reduces to the contention that the required certification of accuracy forces them to revise their systems of accounts to prevent false certification. It is clear, however, that the programs do not require any company to alter present recordkeeping practices; the Commission in no way prescribes accounting methods, although certain companies may wish voluntarily to alter their procedures. In addition, the FTC has made it clear that certain estimates are permitted on the forms, and this certainly mitigates the stringency of the accuracy certification. Moreover, the corporate parties can hardly claim that the present orders have prescribed accounting methods, since the present orders seek data from years past; the corporate parties in effect argue that they may change accounting practices if these programs are con- tinued in subsequent years. For these reasons the court concludes that the LB and CPR programs do not imple- ment or prescribe law or policy by effectively requiring certain accounting practices."* The corporate parties alternatively claim that the pro- grams implement law or policy in their effect on FTC ** The corporate parties also argue that the programs constitute rulemaking because the FTC will prescribe valuations and costs for the LB program. To the extent such valuations or costs will be prescribed by the FTC staff, they will be for internal purposes and will not impose obligations on the companies. Thus such valuations do not meet the definition of a rule under 5 U.S.C. § 551(4). 88 antitrust enforcement goals and, if the data is published, on private investment decisions.’* The corporate parties have failed to specify concretely how the possible, or even planned, future use of the data generated by LB and CPR give those programs sufficient regulatory impact for the court to conclude that the programs themselves implement law or policy. The corporate parties seek to ascribe to the special reports programs a “regulatory purpose” merely on the basis of the possible future use to which the data might be put. This argument goes too far. If data collected for possible future use by the Com- mission in implementing its law or policy can itself be considered to implement law or policy, then all types of agency activity, including agency subpoenas, similarly could qualify as rulemaking. The data collection effort does not itself implement law or policy, although the later regulatory steps the Commission might choose to take in partial reliance on the data submitted could do so. The programs cannot fairly be construed as “regu- lating” the FTC’s resource allocation decisions, nor can they be viewed simplistically as vehicles to implement the Commission’s section 6(f) publication power. In sum, the 6 The corporate parties have described this claim variously dur- ing the pendency of this action. In their LB partial summary judgment motion, the corporate parties focused on the ‘‘regulatory resource allocation purposes’’, asserting that the programs seek to regulate the Commission’s own resource allocation and, through publication, investment decisionmaking. This the corporate parties term ‘‘regulation through publicity.’’ In their reply to their motion the corporate parties stressed private sector reallocation of re- sources by investment decisions and the Commission’s design to restructure industries singled out by the data for antitrust en- forcement. At oral hearing, counsel for the corporate parties broadly asserted that the programs are designed to implement section 6(f) of the FTC Act, which permits the FTC to publish certain information it gathers, and further stated that the pro- grams are designed to implement enforeement policies. At a later point, counsel pointed to the ‘‘compusite effect’’ of the purposes to which the data might be put as evidence that the programs prescribe law or policy. 89 corporate parties’ contentions of regulatory purpose are far too attenuated to convince the court to decide that the special reports programs are designed to implement or prescribe law or policy. Because of its decision on this issue, the court need not decide whether the LB and CPR programs meet the other two definitional requirements of a rule: generalized or particular applicability and future effect. The court has serious doubts whether the corporate parties correctly apply those standards to the present cases, but such a determination is unnecessary to the conclusion that the programs do not constitute rules under the APA.” The court need not rely solely on its own interpreta- tion of what implements or prescribes law or policy to conclude that a special reports program does not consti- tute rulemaking under section 551. Only one case, other than Judge Schwartz’ preliminary decision, has been cited by the parties on the question of whether agency infor- mation-gathering through the requirement of special re- ports constitutes rulemaking. United States v. W. H. Hodges & Co., 533 F.2d 276 (5th Cir. 1976). In Hodges, the Fifth Circuit considered an order by the Secretary of Agriculture directing 38 stockyard marketing agencies to file a special report in the course of an investigation of rates charged by the markets. The Secretary required these reports pursuant to his authority under the Packers and Stockyards Act,"* a statute that expressly incorpo- rates section 6 of the FTC Act to give the Secretary the authority to order that special reports be filed. In re-~ sponse to the objection that the special reports orders ‘tT For the same reasons the court does not consider the FTC’s claims that, even if the programs are rules, they fall within the section 553 exception for ‘‘ general statements of policy.’’ *7 U.S.C. § 222. 90 constituted rulemaking under the APA, the Fifth Circuit held: The order at issue here was clearly investigatory in nature, as opposed to an adjudicatory or rule-making process, and hence not subject to the procedures gov- erning rule-making outlined in the APA. Cf. Genuine Parts Co. v. F.T.C., 445 F.2d 1382, 1388 (5th Cir. 1971); K. Davis, Administrative Law Treatise, § 3.01 at 159, n. 1 (1958). 533 F.2d at 278. The corporate parties attempt to dis- tinguish this case on the ground that the special report orders concerned a focused investigation of rate practices and sought information kept in the normal course of business."® The corporate parties then reiterate their contention that the LB and CPR programs do not con- stitute investigations. Yet the court is not convinced that these information-gathering programs conceptually or in legal effect constitute more than investigations despite the large number of corporations ordered to file the spe- cial report forms. In addition, the APA itself appears to distinguish the concepts of rulemaking, adjudication, and ancillary mat- ters such as investigations or reports requirements. Sec- tion 553 deals with rulemaking requirements, section 554 concerns adjudications, and section 555 is entitled “An- cillary matters.” Section 555(¢) provides that “require- ment of a report ... or other investigative act or demand may not be issued, made, or enforced except as authorized by law.” 5 U.S.C. §555(c). Although the APA does not explicitly state that rulemaking and reports requirements thus are mutually exclusive, the juxtaposition of these ° The FTC contends, as to the latter point, that the respondents in Hodges claimed that the material sought was not available in the ordinary course of business. The Fifth Circuit did not answer this question. 91 sections makes that a not unreasonable inference. Indeed, the chief House sponsor of the APA, Representative Walter, explained during the APA’s consideration that the “bill carefully distinguishes between these basic types of administrative regulatory powers.” 92 Cong. Rec. 5648 (1946). The three basic types of regulatory administrative operations mentioned by Representative Walter included rulemaking, adjudication, and compulsory action. Walter delineated the third category as follows: I refer to the compulsory action of administrative agencies when they issue subpoenas, require records or reports, or undertake mandatory inspections. These functions are investigative in nature. The investiga- tion may be made in connection with their legisla- tive or judicial functions, or it may be made for the purpose of submitting a report to Congress or to refer prosecutions to a grand jury. Whatever the purpose, the administrative arm is given power to require information to be submitted to it. Id. The court is aware that Judge Schwartz reached an opposite decision from that of this court on the con- clusions to be drawn from the subdivisions of the APA and the legislative history.” The differences of opinion may not be irreconcilable, however, to the extent that Judge Schwartz held only that section 555 does not abso- lutely preclude a finding that a special reports program could be subject to rulemaking requirements.” This court does not conclude that section 555 prohibits such a finding in all cases, only that an inference can be drawn from the subdivisions of the APA and its legislative history 7°A. O Smith Corp. v. FTC, 396 F. Supp. 1125, 1133 (D. Del. 1975), rev’d on other grounds, 530 F.2d 515 (3d Cir. 1976). ** Id. (‘The Court cannot hold that Congress intended in Section 555 to obviate the applicability of all other procedural provisions of the APA.’’). 92 that would make a determination that a special reports order constitutes rulemaking doubtful.” Vinally, the court believes that the FTC’s “charac- terization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determiming the applicability” of the APA rulemaking requirements. /TT v. Local 134, Electrical Workers, 419 U.S. 428, 441 (1975) (applicability of APA adjudication provisions). The corporate parties do not dispute that the FTC has maintained that the APA rulemaking pro- visions do not apply to its special reports program. The Quarterly Financial Reports Program, the early CPR Program, and the Premerger Notification Program all provide evidence that the Commission has never con- sidered the rulemaking requirements of the APA to apply to a special reports program. Therefore, although an agency’s characterization of the applicability of the APA is entitled to no more than “weight” and cannot be used to disguise the true nature of agency action, in this in- stance the FTC’s longstanding interpretation of the APA adds support to the court’s conclusion that the LB and CPR programs do tit constitute rulemaking. Thus the court concludes that the programs do not implement or prescribe law or policy and do not fit the definition of rulemaking. The Hodges decision supports this conclusion, as do the subheadings of the APA itself, its legislative history, and the FTC’s longstanding inter- pretation of the applicability of the APA rulemaking provisions. Having so concluded, the court need not and does not consider whether the FTC complied with the APA requirements for rulemaking, 5 U.S.C. § 553. ** The House Report accompanying the APA noted that section 555 preseribed the rights of private parties in miscellaneous re- speects that might be ‘‘incidental to rulemaking, adjudication, or the exercise of any other agency authority.’’ H.R. Rep. No. 1980, 79th Cong., 2d Sess, 1206 (1946) (emphasis supplied). 93 III. Census Act The corporate parties claim that the CPR program ™ violates section 9 of the Census Act, 13 U.S.C. § 9.* This contention is based on the assertion that the CPR survey seeks the same information the corporate parties provide to the Bureau of Census for its quinquennial Census of Manufacturers in the form of value of shipments data by establishment and 5-digit Census product code for the year 1972. The FTC concedes that one purpose of the CPR program is to produce individual company data that it can compare to published Census aggregates. A determination of whether the CPR program is unlawful because it violates the confidentiality provisions of seec- 2° The corporate parties’ Census Act claims also encompass the LB program to the extent that the LB form seeks value of ship- ments data by Census definitions. *4 Section 9 provides, in relevant part: (a) 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 em- ployees of the Department or bureau or agency thereof to examine the individual reports. No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the pur- poses of this title, shall require, for any reason, copies of census reports which have been retained by any such estab- lishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establish- ment concerned, be admitted as evidence or used for any pur- nose in any action, suit, or other judicial or administrative proceeding. 14 tion 9 of the Census Act requires analysis both of the 1962 amendment to that Aet and of the relevant caselaw, No ease before 1962 held that section 9's protection extended beyond the actual Census form, copies of it, or the actual data schedules submitted to Census, In United States v, Bethlehem Steel Corp,, 21 F.RD, 568 (S.D.N.Y, 1968), the distriet court considered whether private steel producers could obtain Census reports of other steel manufacturers from the Department of Com- meres, Judge Weinfeld held that the Census Act pro- tected the Department of Commerce from compelled dis: élosure of the reporte.”” In Mederal Trade Commission vy, Orton, 175 Ff. Supp. 77 (8.D.N.Y, 19609), the district court held that the P'TC could not subpoena certain data sched- ules submitted by respondent company to the Bureau of Census, In upholding the protection of Census data under section 9, the court noted that the PTC sought “the data not in order to get the facts which underlie the statistics, but rather to get the compiled statistical data in the par ticular manner in which it was prepared by the reapon- dent, , . ." /d, at 80, Thus neither Bethlehem Steel nor Orton presented the question at issue here, since in the former case the actual reporta were sought while in the latter case the FTC sought the “aetual schedules submit. ted to the Bureau,” Jd, at 78, The Supreme Court considered St, Regia Paper Co, v. United States, 368 U.S, 208 (1961), to resolve a conflict between the circuits on the question of whether the Census Act protected a company's retained file copy of the report * The corporate parties argue that Judge Weinfeld's use of the term ‘‘information’’ instead of ‘'report’’ at certain points in the opinion demonstrates that Methlehom Ateel fairly ean be vead for the proposition that not only the report but the information eon: tained therein is protected by section 0, To the extent that Judge Weinfeld intended ‘information’ to mean more than a reference to the reporta themselves, that issue was not before the court and statements thereon were just dicta, sent to Census, The Seventh Cireuit decided that the retained file copies merited section 9 protection,’ while the Second Cireuit determined that the file copies did not so qualify," The Supreme Court aflirmed the Second Cir- cull, holding that section 9 did not protect a company's Hye file copies from compelled disclosure, 368 U.S, at 218-20, Soon thereafter, in response to the St, Hegia decision, Congress amended section 0 of the Census Act to add the following language | No department, bureau, agency, officer, or employee of the Government, except the Seeretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been re tained by any such establishment or individual, Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment con. cerned, be admitted as evidence or used for any pur- pose in any action, suit, or other judicial or admin. istrative proceeding, 18 U.S.C, Be a There can be no doubt that this amend. ment was intended to overrule legislatively the Supreme Court's holding in St, Hegia, The key inquiry before this court, however, is whether the amendment was intended to protect more than the reports themselves or copies of them, In the court's mind, the legislative history of the 1962 amendment provides persuasive evidence that Congress did not intend to prohibit such programa as the CPR ~WPPO v, Dilger, 276 F.0d 739 (7th Cir.), cor’, denied, 964 U.S. HAZ (1960), * United States v, St, Regia Paper Co,, 286 W2d GOT (2d Cir, 1060), aff'd, 968 U.S, 208 (1961), Survey in enacting the amendment, The House and Senate Reports refer consistently to “eoples” of Census Reports,” A letter from the Secretary of Commerce, included in hoth reports, assured the Congress that the amendment would not impair the information-gathering authority of regulatory agencies as it existed prior to the St, Hegis decision.” The Seeretary explained further; Furthermore, the ability of a regulatory agency to formulate inquiries, even ones identical with those asked by Census, would not be affected, The only restriction would be that the inquiry would not de- mand an anawer by definition identical with that furnished the Census Bureau in another context and for another purpose, Senate Report at 4, House Report at 7, These two sen- tences go to the heart of the matter, for while the PTC in the CPR program has asked questions that may be answered with Census data, it has not insisted that com. panies supply the Cenaus data itself, To the extent that these two sentences from the Secretary's letter can be construed harmoniously, thie distinction would appear to be significant.” Perhaps even more significant is the fact that the original House bill would have protected “information, reports, and other data” inatead of merely “eopies,” H, 10569, 82d Cong. 24 Seas, (1962), The limit. ing of the scope of the amendment was recommended by the Secretary of Commerce to “avoid any possibility that [the amendment] might be construed to affect documenta 8, Rep. No. 2248, 87th Cong, 2d Seas, (1962) ; HLR, Rep, No. 24/7, 47th Cong, 24 Mews, (1002), * Senate Report, supra, at 4; House Report, supra, at 7, The eourt already lias indicated that it interprets the state of the law prior to Nt, Regia differently than the corporate parties, Nee, ¢.@., Beief for the United States, St, Regis Paper Co, y, United States, 464 U.S, 208 (1061), at 90.41, 97 other than file copies of census reports... .” House Report, supra, at 5, In sum, the legislative history sur- rounding the passage of the 1962 amendment to section ? provides impressive evidence that Congress did not intend to create blanket protection for all materials argu- ably related to the Census Reports, The corporate parties’ primary remaining contention, since the plain words of the amendment and the legisla- tive history do not support their interpretation, is that the FTC should not be permitted to attain indirectly what it could not attain direetly, or else the confidentiality protections anticipated by section 9 would be emasculated. Indeed, there ia much to be said for the policies of con- fidentiality underlying the enactment of section 9. The protections of section 9 undoubtedly play an important role in ensuring the completeness and accuracy of the reports submitted to Census,’ Yet the court cannot simply rely solely on this policy consideration in determining this issue, because it competes against another, equally legitimate policy consideration that calls for a narrower interpretation of section 9 protections, The court also must consider an agency's legitimate needs for certain data, including data arguably similar to that filed in Census Reports, in order to perform its statutory duties. Value of shipments data, for example, can be of great importance in antitrust analveis and prosecution.” Thus See United States v, THM, 1976-2 Trade Cas, 9 60,383 (S.D. N.Y, 1976); PTC v, Orton, 176 PF, Supp, 77 (S,D.N-Y. 1959) ; United States v, Bethlehem Steel Corp, 21 FAD, 668 (S.D.N.Y. 1068), See also Mt, Regis Paper Co, v, United States, 968 U.S, 208, 228-20 (1061) (Black, J, dissenting), See Affidavit of Frederic M, Scherer, Director, Bureau of Eco- nomics, PTO, Mebruary 14, 1076, PTC Bxhibit X; Affidavit of Michael lL, Glasaman, Assistant Director for Beonomic Evidence, Hureau of Beonomies, PTC, February 14, 1976, PTC Exhibit Y; Affidavit of Thomas 8, Kauper, Assistant Attorney General, Anti- trust Division, Department of Justice, February 19, 1976, FTC Bxhibit DD, 98 the court must balance the corporate parties’ expectation of confidentiality with the FTC’s legitimate information- gathering needs and cannot give maximum potential ex- pression to policy considerations of confidentiality. Any confidentiality privilege granted by section 9, therefore, is but a qualified privilege that must be weighed in con- junction with the FTC’s right to collect relevant data. The court is convinced, moreover, that the Census Act itself, both before and after the 1962 amendment, prop- erly discerned and balanced the competing policy con- siderations. Section 132 of the Act, 13 U.S.C. § 132, pro- vides that nothing in this title shall be deemed to revoke or im- pair the authority of any other Federal agency with respect to the collection or release of information. In addition, section 8 of the Act, 13 U.S.C. 48, identifies certain circumstances in which the Secretary of Com- merce may disclose Census data. The 1962 amendment protected “copies” rather than “information,” and the legislative history makes clear that the amendment was not designed to impair an agency’s information-gathering authority. House Report, supra at 7. For these reasons, the court finds the corporate parties’ claims concerning the Census Act to be unsupported by the wording of the Act itself, the relevant caselaw, the circumstances surrounding the 1962 amendment, or the policy considerations underlying the Act. IV. Feperat Reports Act The corporate parties base a number of challenges to the LB and CPR programs on the Comptroller General’s actions pursuant to his clearance review function over independent regulatory agencies’ information-gathering activities under the Federal Reports Act, 44 U.S.C. 99 §§ 3501-3512. Several issues arise from these claims: whether judicial review of the Comptroller’s actions is un- available because the matter is committed to agency discre- tion; whether the Comptroller applied the correct legal standard in performing his function under the Act with respect to the LB and CPR programs; and whether the Comptroller’s clearance of these forms was in any case ar- bitrary, capricious, or an abuse of his discretion. For the reasons enumerated below, the court does not believe that the corporate parties’ claims form a basis for in- validating these programs. A. Availability of Judicial Review This court previously has determined that judicial re- view of the Comptroller’s actions under the Federal Re- ports Act is not barred by a Congressional intent to preclude review or by the availability of an adequate alternative remedy in court. One further claim, raised by the FTC but not the Comptroller, suggests that the Comptroller’s determinations under the Act are “commit- ted to agency discretion by law.” 5 U.S.C. §701(a)(2). This exception to the general rule of reviewability, if ap- plicable, would preclude judicial review in this instance. The FTC relies primarily on two cases finding that the Comptroller’s actions under the Act are committed to his discretion. In General Electric Co. v. FTC, 411 F. Supp. 1004, 1006 (N.D.N.Y. 1976), the district court found the Comptroller’s decision committed to his discretion because “the statute characterizes his response to the agency as ‘advice.’” Id. at 1006. Similarly, in Westinghouse Electric Corp. v. Federal Trade Commission, 1976-1 Trade Cas. 60,871 (S.D. Ohio 1976), the court found the Comp- troller’s decision committed to his discretion “because the statute characterizes the Comptroller General’s response to the agency as ‘advice.’” Jd. at 68,816. The FTC also ** Memorandum Opinion of Jan, 31, 1977, at 22-24. 100 asserts that no case exists holding the Comptroller’s de- terminations under the Act to be reviewable. The court cannot agree with the conclusion of the FTC and the two district courts.* The committed to agency discretion exception to APA reviewability is a “very nar- row” one. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). The exception should be invoked only where a particular statute is drawn in such broad terms that there is in effect no law to apply in a given case. Id., citing S. Rep. No. 752, 79th Cong., Ist Sess. 26 (1945) [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1444%3A3. Public record. Not legal advice.