# Brief in Opposition to Petition for A Writ of Certiorari — White v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0154%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for A Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 1052 ## Text E = Sgr a ' Py ' ' ' ' ' ' ’ ' ' ’ ' ' ’ r ' ‘ ' ' t ' t ’ ’ ‘ ’ ' ' ONWNN He 8 a, i ' ' tr ' ' ' ‘ e ‘ » 8 : ‘ ' ' ' ' ‘ ' t ‘ 7! ‘ ‘ ' ' ' ‘ ' ' ' ' ' t ot * - rTATIONS Ailantic Seaboard’ Corp. v: Federal. Lobe Commission {C.A.D.G. No. 21400, decided | _ September 27, 1968)....--_-.--2.--.-- see 15. California v. sheained Power Commision, 369° + ene wre een ww www wm ew wr eB eM ee eH www OM Dw ew ee -“—«“a ee See ec een ee eB eee eB eee ee ee eee ee i. nee , ” y. United States, 387 U.S. 485-..--------- 18 Federal Maritime_Comméssion—v-Aktiebolaget aS | Svenska Amerika Linien, 390 U.S. 238.--. 15 ; McLean Trucking Co. v. United States, 321 . 6 BE he a ies sniettchn initia igen emia ei tin iain 15, Penn-Central Merger ‘Cen, 389 US. 486... 13, 15 Pennsylvant, Water & Power Co. v. Federal —- Power Commission, 193 F. 2d 230, affirmed, | BES Sh NE inks copsctactaréaetoue ee Seaboard Air Line R.Co. “v, United States, ee te ee ee lL ll 4) ae : Sietoies and - reguiations; ; Federal Power Act, Act -of Sete 10, 1920, 41. Beat, 1063, as amended, 16 USC. 791a-. ae "fetion 202(a), 16 U.S.C. 824a(a).. ES 7,16 _ , 2... Seetaon 203, 16 U.S.C. 824b_. 222. ..2_. 2,3. Bie Bee oe € > Section 203(a), 16 U.S.C. S2ab(a)....-°. 7,125 ———_ Seetibn 208(b),'16 U.S.C. 824)... 8 Section 313(b), 16 U.S.C; 825(b).....-. 12,15 oe, Public Utility Act of 1935, 16 U.S.C: 7la- > * a dni ciesdaene nd = Sabedecnskckndau: 48° Public Utility Holding Compene ‘Act, August 26, 1985, ¢. 687, 49 Stat. 803, 15 U.S.C. 79, , ees AL ARLE G A 5 te DE 8 ote apie Federal Power Secon: Uniform: System - one _ Sof Accounts for Publi¢' Utilities‘and Licen- - ee: 1937, 18 CFR. “9 | Se ae iE re 4: ‘ Miscellaneous: eet She ; The Wall Street Journal, September 19, 1968. i g ar Se et on -Ocrosss, Tana; 1968, ~ 1TTe S "Umar Users Lick AND Senos. Bann, | gars oi “PETITIONERS - uge : “v. >423 | 3 x pee an: 81 wo ena of. its leiseitiii: were ‘in the Rockford’ area, surrounded on. three:sides. by - Commonwealth’s 8 service, area. In addition, it. operated electric distribution. properties in three: isolated. pock-" - ets i in. central Illinois, and another tiny pepheh in auth: eastern Illinois, (Tbid.) O44 . The major-reason. for Central’ 8 interest. in merger . with. Commonwealth. _Was its anticipated, need. for. an increased, power supply. Central estimated that its - total system. demand for electric power in 197 1 would be 300,000 kw, an increase. of 49.3 percent over 1965 eA, App: 12; 36 FPC. at 935). Central ‘considered a several: possible. programs for satisfying this need. : Following unsuccessful. attenipts to join. with neigh- boring systems (other than Commonwealth} in- the construction of jointly owned units, Central’s | engi- neering consultant made a study. suggesting two other approaches © (J. A. 9-28; ‘C.Ay App. 13-14; 36 cae at; 935-936). ‘Orie of these approaches involved - construction of independent facilities by Central an the other ‘the purchase of power from Commonwealth ~ Ne: ata Tate based’ ‘On. ‘Comnionwealth ’s average costs (a rate. viewed as reasonable by the Coneealesion) (C. A. ‘App. 13; 36.FPC at 936). — St turned ‘out,’ however, thet still a ‘third iididlech _smerger with Commonwealth—would provide the _ most economical source of power for Central’s area. ‘Although the program. Of ‘self-generation by Central would haye.been more than. $3,900,000. cheaper than purchase of eléctricity from ‘Commonwealth over a 10- - year period (ibid), thergét” ‘would ‘give’ a. source a. power estimated to be $13,000, 000 cheaper than the self- ° : , * ° — exchange of the: gas and non-con —— tiguous electri¢ properties or bane cher dnp thret, and tat Gemma with er BMIDTIAI® Sso2.° ITtTase 9617 “ ehoegte Siobe.e 2 4G. & A909) 12— 16 vse ‘8251(b) ‘(wet ‘App: say ‘gud (2) “that, | in, _any event, | the Commission’s findings were adeé- quately supported by the record and consistent with the applicable legal criteria. Concluding that the pub- lic interest hdd been’ “faithfully protected,” the ‘court affirmed the Commission's Ss order (Pet. App. 4-8). . Petitioners’ motion for a remand to adduce additional evidence was | denied (Pet. App. ., ee sh : ARGUMENT 3 7 H ’ ling ‘its responsibility under Séétion 203 13(a) * e * of thé Federal Power Act to determine whether pro- posed cdrsolidations are “‘consistent with the’ public — interest”, the Federal Power Commission has evolved several pertinent criteria. Applying these criteria, the - _ Commission’ found that the merger ‘of Central’ into . Commonwealth: would result in substantial economies - ‘ in supplying bulk power needed to: meet load growth - in Centrai’s area and would facilitate rate reductions. Nothing in the policies of the Federal Power Act, the . antitrust laws, or the: Public Utility Holding Com- pany ‘Act-was found to outweigh the advantages flow- ing from merger. The Commission’s conclusions were rationally ‘based ' ‘and waiterdanee by se ‘atiiply : supported by thé record. : des ~ Ns! te’ court’ of appeals iddgritiia’ the” ‘iiiiaasy responsibility. for measuring whether a proposed mer- ger in ‘a ‘regulated ‘industry's compatible with the 2194 ak Gommnieniol dts below; dnd: Bien. it mm, age this ground. Indeed, since the court-did-in fact reach'and pass 3 a ee — -¢ -_-publie interest rests‘on ‘the appropriate ‘adininistrative agency. ‘Having’ ‘found that the’ Commissiori acted in | accordance with’ proper legal standards and‘ on’ the basis of substantiated: findings, the-court below: prop- — - erly affirmed the ‘Commission’s decision. “See ‘Penn: Central Merger Cases, 389 U:S.' 486, 498-499.) 22 Except for the standing ‘poirit—which- need not ‘be cotisideréd here’ because the court of appeals also reviewed the’ 'case on ‘the ‘‘merits—thé' multifarious: are questions formulated in the ‘petition (Pet. 2-6) “are reducible to the final’ question framed:''“Was the, [Commission’s] order contrary to the evidence?” Such — questions as fre raised in the petition as to ‘the sub- | startiality of evidence ‘and the telative weight: to ‘be given to the various factual élemerits of an: adminis: trative proceeding do not present, issues appropriate & for- plenary attention by’ this Court. Beyond these objections, the petition taisés ‘no ‘issjie' of’ public importance, and points to no relevant ‘conflict of decisions. Hence, further review is mot warranted. - "lL. We discuss only: briefly the arguments petitioners have advanced to support their request’ for review. ‘First, as the court below. recognized . (Pet. App. 6), . petitioners are doubly in error in complaining (Pet. 13-16) that the consideration given for Central stock was excessivé.. The price. paid fairly reflects the. book value of Central’s plant: taken together with its’sales : _ growth potential and ariticipated. economies’ of Seale, - Moreover, . thé, payment, of the. purchase, price in. zt - Stock having a market value higher than ‘the: .depre- a eidted original éost’ of the Central properties could in Isai ccicuntearncheae garuere ex santas a a + evidence: ‘Petitioners chose to participate in the pro- 4 ceedings, only to the extent of submitting interrog- Lait, - cost of Central’s asseta,on Commonwealth’s books is identical with their premerger cost.on Central books; - adjustments have been made only in Commonwealth’s | ' stock and capital surplus accounts and the total eapi- talization.of the merged company ‘will not exeeed the ae aggregate capitalisation of ‘Central and Common- wealth (C.4. App. 16; 36 FPO at 987). i 2. The court helow ‘properly denied petitioners’ motion to remand to permit them to adduce additional atories/by way of. eross-examination, But this is no pine why they could not have offered, during the hearings, evidence relating to the very. matters. re- 0 ferred to in the motion. In any event, as the Com-_ migsion’s opinion reveals, the petition to remand (see Pet. 5). does little more than repeat claims advaneed to the Commission: at various stages of the proceed- ~ ings. These elaims. were considered by the Commis-— sion on the basis of substantial evidence developed by the apptiegate and: the staf (ntter jn. feld:lnventign- tion), none of which is here challenge Ge eidehdihtdecitiiteihaietbite they eid shan en intended. to show that the retail tates and average revenue of large utilities, including Commonwealth, were frequently higher. — those of smaller ‘utilities. But’ the Commission did consider "gf gil Utd velative zatee' of edt: Ooamion wekteh; est Contcal ec a inte, account that Cominonwealth’s rates in were higher than those of Central, thoy over- erence (C.A. App. 19-21; 36 FPC at Seb-oanye eeabaiaed do not challenge the bulk power ‘savings -_fonnd: to eatist here. \ ., Petitioners’. pee eh een ah + ins. ge 8 4 4% : : ap LTA 7% rays by. tories NLT. FPOIY LEE? COLBY ; ° ° . r a *, . “15 | 8) Tnwotar'ea pettioncns ahi etggeteal 46 ~ 19) that the Commission failed to take ‘proper coun of ‘antitrust’ laws: and policies,’ their contentions: ar baseless, Contrary to any such claim the Cominission “was acutely aware ‘that’ the policies: of ‘thé ‘antitrust laws and the Public Utility: Holding Company’ Act constitute’ an important’ ingredient’ of ‘the: “public - . 7 interest.” Assessment of the proper impact of these 3 % principles on, electri¢ utilities calls for the exercise of expert judgment by the agency entrusted by Congress . = with the comprehensive task of regulating this in- . dustey. I In. 30 doing, that agency must also give effect a _ eréased creased sir polhition ‘in Chicago wai nade for ‘the first time in petitioners’ to the court’ below iand hence its claim that the Commissioy failed to take this into consideration. is not. open. here. See Section 313(b) of the Power Act, 16 U.S.C, 8252 (b). In any event, the claim that the merger will increase ‘toal-fired generation in Chicago is without substance), Commonweaith’s construction plans (which;.we point out, are not, significantiy affected by the merger) included no fossil fuel plants in or near — | Chicago. Two 600 mw units were ‘under construction or on ofder | and two 800 mw nuclear unite wére' planned for later ocon- struction (C.A. App. 9-10; 36.FPC at 933-934). The 600 mw - units are mine-mouth coal-fueled facilities. located 175 miles southwest of Chicago and the energy will be carried to Chicago over 845 ky: lines (J-A, 39-40)::(Commonwealth is aleo planning "another coal-fueled:; as. a possible alternative to‘a nuclear unit, but, this, too, will remote from Chicago, at a site ‘in ‘southern Uinois. See The Wall Street Journal of sptember 1: 1968, p. 8): 4 iswod tse : Cf, California y. Federal Peer Comesiasion 309 U5 49; 484-485; Atlantic Sea Corp. a ‘gion (CA. DS. No. 409, | ios ar emt ne oman A - Ah {43 [tt 5% 6. the. ieitinise of. the gaiatiei statute. it tiadministers. "Thus, in. defining the poli¢y of the Federal. Power Act to. assure abundant electric energy with the lowest. possible rates to e¢onsumers, Congress. has expressly recognized that-an appropriate method for achieving — economies of scale in bulk power’ supply is to.allow, oh encourage, and regulate coordination@t ‘power supply - facilities.” See Pennsylvania Water & Power Co. v., | Federal Power Commission, 193 F. 2d 230,.234-235‘ - (C.AD.C.), affirmed, 343 U.S. 414. It was in this con- text that the Commission emphasized that whether a merger is the most appropriate form. of eoordination of systems turns on the peculiar fgéts: of each specific situation and will bey closély scx itinized — App. 3-5; 36 FPO at 930-931). : In making. this inquiry in this case, the Commission - Ss acknowledged that economies of scale may be achieved _ by coordination between otherwise independent power ~— a. systems. and not only by corporate integration. The - ~ pecord here showed, however,. that the- coordination , reasonably available to Central as a separate com- ‘pany: would. fall short by $13 million. (over a 10-year | | period) .of achieving the economies, of seale that will’ — result: -from the merger. See, pp.56,39, supra. Cor-— Beet _ Respondingly, the Commission concluded that the ye eedhomies in supplying bulk. power resulting from. the ‘merger would: ae i eae aah for the Hlinois a | TWection a) of the Snie, USC. sae direied the ue Goss for Central a than uo | Pos sav alary (ca. App. als saad > ‘and thé franchised’ retail service areas of the ied - ’ eompanies were distinct in aecordance: with state law. Re Ms ' Furthermore, since: Commonwealth’s. industrial rates ‘- . + were lower than Central’s , there was no. serious ¢om- “petition in . attracting: new. industrial ‘ ¢ustomers to |- see their respectivé service areas. Indeed, the City of > -.. Roekford’s ability. to attract industry is probably ~ enhanced by the economies that, will result from | the merger. Moreover, in light, of the’ existing degree of ae ee: ‘concentration and the sizes of the two icomtpanies, the. _- “+, Commission yeasonably concluded that Oommon- ‘wealth’s economic power would’ not ‘be: ‘significantly ts ~ -dnereased ‘by the ‘mergér,. “either “in relative or abso- . Inte terms (C.A. App. 22-24; 36°FPO at 940-942). ‘Phe record also ‘supports thie Commhission?s finding’. . (C.A. App. 94, 31; 36 FPC at 941-942, 945) that the Merger would have no adverse éffect ‘on: ‘competition ee a with other energy’ sources. Central, to be sure, owned . . ’.., ‘gas distribution properties which were included in the merger, and Commonwealth, ‘which previously controlled no gas: properties of its own, -intended to '. continue. Central’s practice of using excess: gas as | boiler sg in sk a acaccannees As a tet * #4. T#2 Wee 18 . matter, the merger. wi ‘jts attendant economic ene- fits ‘would not have been feasible if these properties were not initially incuded inthe tranafer. It was within the Commission’s sound discretion to conclnde that any divestiture of the acquired gas and non-:. contiguous electric properties should be delayed pend- ing further study of the alternatives. Compare Den- ver & Bio Grande Westérn Railroad Co. v. United . + States, 387 U.S. 485. . _ The ‘petition for a writ of certiorari should be denied. we : . ' ‘’ ‘Erwme ‘N. Gursworp, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0154%3A2. Public record. Not legal advice.