author: Mr. Justice White Mr. Justice Douglas,

text:
    UNIVERSAL INTERPRETIVE SHUTTLE CORP. v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION et al.
    No. 19.
    Argued October 21-22, 1968.
    Decided November 25, 1968.

      Jeffrey L. Nagin argued the cause for petitioner. With him on the briefs were Allen E. Susman and Ralph S. Cunningham, Jr.

      Russell W. Cunningham argued the cause and filed a brief for respondent Washington Metropolitan Area Transit Commission. Manuel J. Davis argued the cause for respondent D. C. Transit System, Inc. With him on the brief was Samuel M. Langerman.

      Assistant Attorney General Martz argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Griswold, Francis X. Beytagh, Jr., S. Billingsley Hill, and Thomas L. McKevitt.

   Mr. Justice White

delivered the opinion of the Court.

The Secretary of the Interior is responsible for maintaining our national parks, and for providing facilities and services for their public enjoyment through concessionaires or otherwise. In meeting this responsibility, he has contracted for petitioner to conduct guided tours of the Mall, a grassy park located in the center of the City of Washington and studded with national monuments and museums. Visitors to the Mall may board petitioner’s open "minibuses” which travel among the various points of interest at speeds under 10 miles per hour. Guides on the buses and at certain stationary locations describe the sights. Visitors may debark to tour the museums, boarding a later bus to return to the point of departure.

Suit was brought by the Washington Metropolitan Area Transit Commission (hereafter WMATC) to enjoin petitioner from conducting tours of the Mall without a certificate of convenience and necessity from the WMATC. Carriers permitted by WMATC to provide mass transit and sightseeing services in the City of Washington intervened as plaintiffs, and the United States appeared as amicus curiae. The concessionaire and the United States contend that the Secretary’s authority over national park lands, and in particular his grant of “exclusive charge and control” over the Mall dating from 1898, permit him to contract for this service without interference. The carriers and WMATC argue that the interstate compact which created the WMATC implicitly limited the Secretary’s authority over the Mall, and gave rise to dual jurisdiction over these tours in the Secretary and the WMATC. One carrier, D. C. Transit System, Inc., also argues that its franchise limits the Secretary’s power. In a detailed opinion the District Court dismissed the suit. The Court of Appeals reversed without opinion. We granted certiorari and, having heard the case and examined the web of statutes on which it turns, we reverse, finding the Secretary’s exclusive authority to contract for services on the Mall undiminished by the compact creating WMATC or by the charter granted a private bus company.

I.

That the Secretary has substantial power over the Mall is undisputed. The parties agree that he is free to enter into the contract in question. They also agree that he is free to exclude traffic from the Mall altogether, or selectively to exclude from the Mall any carrier licensed by the WMATC or following WMATC instructions. Moreover, the parties agree that the Secretary could operate the tour service himself without need to obtain permission from anyone. Yet the WMATC argues that before the Secretary’s power may be exercised through a concessionaire, the consent of the WMATC must be obtained.

This interpretation of the statutes involved would result in a dual regulatory jurisdiction overlapping on the most fundamental matters. The Secretary is empowered by statute to "contract for services . . . provided in the national parks ... for the public ... as may be required in the administration of the National Park Service_” Act of May 26, 1930, c. 324, § 3, 46 Stat. 382, 16 U. S. C. § 17b. Moreover, he is “to encourage and enable private persons and corporations ... to provide and operate facilities and services which he deems desirable . . . .” Pub. L. 89-249, § 2, 79 Stat. 969, 16 U. S. C. § 20a (1964 ed., Supp. III). Congress was well aware that the services provided by these national park concessionaires include transportation. Hearings on H. R. 5796, 5872, 5873, 5886, and 5887 before the Subcommittee on National Parks of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 151-159 (1964). In this case the Secretary concluded that there was a public need for a motorized, guided tour of the grounds under his control, and that petitioner was most fit to provide it.

The WMATC, however, also asserts the power to decide whether this tour serves “public convenience and necessity,” and the power to require the concessionaire to “conform to the . . . requirements of the Commission” and the “terms and conditions” which it may impose. Pub. L. 86-794, Tit. II, Art. XII, § 4 (b), 74 Stat. 1037. The Secretary’s contract leaves the tour’s route under his control, but the WMATC would in its certificate specify the “service to be rendered and the routes over which” the concessionaire might run within the Mall. Pub. L. 86-794, Tit. II, Art. XII, §4 (d)(1), 74 Stat. 1037. Moreover, the WMATC might require the provision of additional service on or off the Mall and forbid the discontinuance of any existing service. Pub. L. 86-794, Tit. II, Art. XII, §§4(e) and (i), 74 Stat. 1038, 1039. The contract with the Secretary provides fare schedules, pursuant to statutory authority in the Secretary to regulate the concessionaire’s charges. Pub. L. 89-249, § 3,79 Stat. 969, 16 U. S. C. § 20b (1964 ed., Supp. III). The WMATC would have the power to “suspend any fare, regulation, or practice” depending on the WMATC’s views of the financial condition, efficiency, and effectiveness of the concessionaire and the reasonableness of the rate. Pub. L. 86-794, Tit. II, Art. XII, § 6, 74 Stat. 1040. And under the same section the WMATC could set whatever fare it found reasonable, although a profit of 6%% or less could not be prohibited. The Secretary is given statutory authority to require the keeping of records by the concessionaire and to inspect those records, and the Comptroller General is required to examine the concessionaire’s books every five years. Pub. L. 89-249, §9, 79 Stat. 971, 16 U. S. C. § 20g (1964 ed., Supp. III). The WMATC would also have the power to require reports and to prescribe and have access to the records to be kept. Pub. L. 86-794, Tit. II, Art. XII, § 10, 74 Stat. 1042. Finally, the Secretary is given by statute the general power to specify by contract the duties of a concessionaire, 16 U. S. C. §§ 17b, 20-20g (1964 ed. and Supp. Ill); the WMATC would claim this power by regulation and rule. Pub. L. 86-794, Tit. II, Art. XII, § 15, 74 Stat. 1045.

We cannot ascribe to Congress a purpose of subjecting the concessionaire to these two separate masters, who show at the outset their inability to agree by presence on the opposite sides of this lawsuit. There is no indication from statutory language or legislative history that Congress intended to divest the Secretary partly or wholly of his authority in establishing the WMATC. When the WMATC was formed there was in the statute books, as there is now, a provision that the “park system of the District of Columbia is placed under the exclusive charge and control of the Director of the National Park Service.” Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, as amended, D. C. Code §8-108(1967). He was, and is, explicitly “authorized and empowered to make and enforce all regulations for the control of vehicles and traffic.” Act of June 5, 1920, c. 235, § 1, 41 Stat. 898, D. C. Code § 8-109 (1967). And this extends to sidewalks and streets which “lie between and separate the said public grounds.” Act of March 4, 1909, c. 299, § 1, 35 Stat. 994, D. C. Code § 8-144 (1967). The creation of the Public Utilities Commission — the predecessor of the WMATC — was not intended “to interfere with the exclusive charge and control . . . committed to” the predecessor of the National Park Service. Act of March 3, 1925, c. 443, § 16 (b), 43 Stat. 1126, as amended, D. C. Code §40-613 (1967).

In this context the WMATC was established. After World War II, metropolitan Washington had expanded rapidly into Maryland and Virginia. The logistics of moving vast numbers of people on their daily round became increasingly complicated, and increasingly in need of coordinated supervision. Congress therefore gave its consent and approval through a joint resolution to an interstate compact which “centralizes to a great degree in a single agency . . . the regulatory powers of private transit now shared by four regulatory agencies.” S. Rep. No. 1906, 86th Cong., 2d Sess., 2 (1960). These four agencies were “the public utility regulatory agencies of the States of Virginia, Maryland, and the District of Columbia and the Interstate Commerce Commission.” Pub. L. 86-794, 74 Stat. 1031. The Secretary was not included in this listing. Moreover, Congress specifically provided that nothing in the Act or compact “shall affect the normal and ordinary police powers . . . of the Director of the National Park Service with respect to the regulation of vehicles, control of traffic and use of streets, highways, and other vehicular facilities . ...” Finally, the House Report on the compact lists the federal legislation which was suspended to give effect to the compact, and the laws giving exclusive control of the Mall to the Secretary are not on the list. H. R. Rep. No. 1621, 86th Cong., 2d Sess., 29-30 (1960).

There is thus no reason to ignore the principle that repeals by implication are not favored or to suspect that the Congress, in creating the WMATC, disturbed the exclusivity of the Secretary’s control over the Mall either by extinguishing entirely his power to contract for transportation services or by burdening the concessionaire with two separate agencies engaged in regulating precisely the same aspects of its conduct. Congress was endeavoring to simplify the regulation of transportation by creating the WMATC, not to thrust it further into a bureaucratic morass. It therefore established the WMATC to regulate the mass transit of commuters and workers. A system of minibuses, proceeding in a circular route around the Mall at less than 10 miles per hour, and stopping from time to time to describe the sights before disgorging most passengers where it picked them up, serves quite a different function. The Mall is, and was intended to be, an expansive, open sanctuary in the midst of a metropolis; a spot suitable for Americans to visit to examine the historical artifacts of their country and to reflect on monuments to the men and events of its history. The Secretary has long had exclusive control of the Mall and ample power to develop it for these purposes. We hold that the WMATC has not been empowered to impose its own regulatory requirements on the same subject matter.

II.

If the WMATC is without jurisdiction to issue a certificate of convenience and necessity in this case, as we have found, then the D. C. Transit System’s interpretation of its franchise as protecting it from any uncerti-fied sightseeing service on the Mall would give it an absolute monopoly of service there: the WMATC, lacking jurisdiction over the Mall, would have no authority to certify another carrier. The Secretary, if D. C. Transit is right, would have to take D. C. Transit or no one. Nothing in the statute confers so rigid a monopoly.

Section 1 (a) of D. C. Transit’s franchise, Pub. L. 757, c. 669, Tit. I, pt. 1, 70 Stat. 598, confers the power to operate a “mass transportation system.” That this does not include sightseeing is clearly shown by the separate grant of power to operate “charter or sightseeing services” in § 6, 70 Stat. 599. The section giving D. C. Transit a measure of exclusivity is § 3, 70 Stat. 598, which protects it from any uncertified “competitive . . . bus line” for the “transportation of passengers of the character which runs over a given route on a fixed schedule . . . .” In determining what is “competitive” one must refer back to the sections which grant the franchise.

Even if §§ 1 and 3 together would protect “mass transportation” on the Mall from uncertified competition, and even if § 3 protects § 6 activity, it does not follow that D. C. Transit has a monopoly over sightseeing on the Mall. Section 6 explicitly saves the “laws ... of the District of Columbia,” including the “exclusive charge and control” of the Secretary over the Mall. D. C. Code §8-108 (1967). D. C. Transit admits the Secretary could exclude its sightseeing service from the Mall; if so, surely the franchise protection does not extend there. Moreover, § § 3 and 6 together cannot confer a monopoly of Mall sightseeing both because this would involve an impairment of the Secretary’s power under District law contrary to § 6, and because it would be unreasonable to construe the protection of § 3 against carriers uncerti-fied by the WMATC to apply where the WMATC has no powers of certification.

And even were § 3 so construed, its protection against “transportation of passengers of the character which runs over a given route on a fixed schedule” was evidently aimed at commuter service whose most important qualities are speed and predictability, not the service here whose most important qualities are interesting dialogue and leisurely exposure of the rider to new and perhaps unexpected experiences. The agenda of the tour will be varied by the Secretary according to the events of the day. The franchise does not protect D. C. Transit against competition in this sort of service on the Mall.

We reverse the judgment of the Court of Appeals and reinstate the judgment of the District Court. If the Congress, which has the matter before it, wishes to clarify or alter the relationship of these statutes and agencies, it is entirely free to do so.

Reversed and remanded.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Douglas,

with whom Mr. Justice Stewart concurs, dissenting.

We have said over and again that we do not sit to review decisions on local law by District of Columbia courts where the reach of that law is confined to the District. District of Columbia v. Pace, 320 U. S. 698, 702; Busby v. Electric Utilities Union, 323 U. S. 72, 76.

That law is not only peculiarly local; it is a compendium of a variety of laws drawn from numerous sources, with which the judges in the District are much more familiar than are we. No legal problem is more obviously peculiar to the District than the one posed by the present case. Traffic, including the movement of tourists, is a special concern of local government. The District Court held that the Secretary of the Interior, not WMATC, was the appropriate licensing authority. The Court of Appeals by a two-to-one vote reversed but did not file an opinion because “the interests of the parties and of the public would be better served” by a prompt disposition of the case. The Court of Appeals en banc, two judges dissenting, denied a petition for rehearing.

The contrariety of views below suggests that this question of local law is not free from doubt. Certainly it is not a case where the decision is so palpably wrong as to make it the exceptional case for review by this Court. Nor is this question of local law so enmeshed with constitutional questions as to make appropriate its resolution here. See District of Columbia v. Little, 339 U. S. 1, 4, n. 1; District of Columbia v. Thompson Co., 346 U. S. 100.

These considerations make much more appropriate here than in Fisher v. United States, 328 U. S. 463, 476 (from which the quotation is taken), the following observation:

“Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed.
“Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere.”

The present case could not be more precisely described.

       16 U. S. C. §§ 1, 17b, 20 (1964 ed. and Supp. Ill). This responsibility is met principally through the National Park Service, which was created by the Act of August 25, 1916, c. 408, § 1, 39 Stat. 535, as an agency of the Department of the Interior. Since there is no conflict between them, we shall refer directly to the Secretary of the Interior rather than to the Director of the National Park Service.

       In the Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, Congress placed the District of Columbia parks under the “exclusive charge and control” of the United States Army Chief of Engineers. This authority was transferred in the Act of February 26, 1925, c. 339, 43 Stat. 983, to the Director of Public Buildings and Public Parks of the National Capital. And in Executive Order No. 6166, June 10, 1933, H. R. Doc. No. 69, 73d Cong., 1st Sess., § 2, this authority finally devolved upon the agency now called the National Park Service. Act of March 2, 1934, c. 38, § 1, 48 Stat. 389.

       D. C. Transit System, Inc., an intervening carrier, contends otherwise. But that position is not directly at issue in our view of the case.

       The Secretary’s power does not extend beyond these limits, however. In order to institute a transportation service from the Mall to a proposed Visitors’ Center in Union Station he sought specific authorization from Congress to add to and confirm his existing authority and provide a service embracing both the Mall and its surroundings. S. Rep. No. 959, 90th Cong., 2d Sess., 8-10 (1968). Congress simply directed him to study the transportation needs of the entire area. Pub. L. 90-264, Tit. I, § 104, 82 Stat. 44 (1968); S. Rep. No. 959, 90th Cong., 2d Sess., 3 (1968); H. R. Rep. No. 810, 90th Cong., 1st Sess., 5 (1967).

       Pub. L. 86-794, § 3, 74 Stat. 1050. The term “police power” is a vague one which “embraces an almost infinite variety of subjects.” Munn v. Illinois, 94 U. S. 113, 145 (1877) (economic regulation of grain storage an aspect of police power). It is broad enough to embrace the full range of the Secretary's power over the Mall, which even prior to the compact was ordinarily directed to ends quite different from that of the surrounding municipalities in regulating their streets. The Secretary sought explicit recognition of these differences through use of more specific language in the compact, but his clarification was not adopted. H. R. Rep. No. 1621, 86th Cong., 2d Sess., 20, 48-49 (1960).

         E. g., Wood v. United States, 16 Pet. 342, 363 (1842); FTC v. A. P. W. Paper Co., 328 U. S. 193, 202 (1946).

       This transportation is undertaken by contract with the Federal Government to serve a purpose of the Federal Government, and so might be thought to fall within the specific exemption from the compact for transportation by the Federal Government. Pub. L. 86-794, Tit. II, Art. XII, § 1(a) (2), 74 Stat. 1036. Moreover, it is not primarily designed to transport people “between any points” but rather back to the same point of departure, and might therefore be excepted from the WMATC’s jurisdiction. Pub. L. 86-794, Tit. II, Art. XII, §1 (a), 74 Stat. 1035. But we find it unnecessary to reach these arguments, which would involve much more severe limits on the power of the WMATC throughout the city.

       “There is hereby granted to D. C. Transit System, Inc. ... a franchise to operate a mass transportation system of passengers for hire within the District of Columbia . . . the cities of Alexandria and Falls Church, and the counties of Arlington and Fairfax in the Commonwealth of Virginia and the counties of Montgomery and Prince Georges in the State of Maryland . . . Provided, That nothing in this section shall be construed to exempt the Corporation from any law or ordinance of the Commonwealth of Virginia or the State of Maryland or any political subdivision of such Commonwealth or State, or of any rule, regulation, or order issued under the authority of any such law or ordinance, or from applicable provisions of the Interstate Commerce Act and rules and regulations prescribed thereunder.”

         “The Corporation is hereby authorized and empowered to engage in special charter or sightseeing services subject to compliance with applicable laws, rules and regulations of the District of Columbia and of the municipalities or political subdivisions of the States in which such service is to be performed, and with applicable provisions of the Interstate Commerce Act and rules and regulations prescribed thereunder.”

       “No competitive street railway or bus line, that is, bus or railway line for the transportation of passengers of the character which runs over a given route on a fixed schedule, shall be established to operate in the District of Columbia without the prior issuance of a certificate by the Public Utilities Commission of the District of Columbia ... to the effect that the competitive line is necessary for the convenience of the public.”

      The law of the District of Columbia is (1) the principles and maxims of equity as they existed in England and in the Colonies in 1776; (2) the common law of England and the Acts of Parliament which were in effect in the Colonies in 1776 (and which were not locally inapplicable); (3) the laws of Virginia and Maryland as they existed on February 27, 1801 (2 Stat. 103); (4) the Acts of the Legislative Assembly created by the Act of February 21, 1871 (16 Stat. 419); (6) all Acts of Congress applicable to the District. See District of Columbia Code (1940 ed.), Tit. 1-24, p. IX el seq.; Comp. Stat. D. C. 1887-1889, pp. V-VI.


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice White,

license: Public Domain

text:
    UNITED STATES v. CONCENTRATED PHOSPHATE EXPORT ASSN., INC., et al.
    No. 29.
    Argued October 24, 1968.
    Decided November 25, 1968.

      Deputy Attorney General Christopher argued the cause for the United States. On the brief were Solicitor General Griswold, Acting Assistant Attorney General Zimmerman, Lawrence G. Wallace, and Howard E. Shapiro.

      Samuel W. Murphy, Jr., argued the cause for appellees. On the brief were Marcus A. Hollabaugh and Alan S. Ward for Concentrated Phosphate Export Assn., Inc., Mr. Murphy and Andrew J. Kilcarr for American Cyana-mid Co., Lawrence J. McKay and Jerrold G. Van Cise for W. R. Grace & Co., Edgar E. Barton for International Minerals & Chemical Corp., Edward F. Howrey and John Bodner, Jr., for Mobil Oil Corp., Alfred D. Berman and Randolph Guggenheimer, Jr., for Tennessee Corp., appellees.
   Mr. Justice Marshall

delivered the opinion of the Court.

Involved in this case are 11 sales of concentrated phosphate made between 1961 and 1966 by appellee association. The phosphate was supplied by the association’s members, which are all producers of fertilizer, and was then shipped to the Republic of Korea under the United States foreign aid program. The Government, in a civil antitrust complaint filed on December 21, 1964, contended that the concerted activities of the association and its members in regard to these 11 sales violated § 1 of the Sherman Act, 26 Stat. 209 (1890), as amended, 15 U. S. C. § 1. Appellees defended on the ground, inter alia, that their activities were exempted from antitrust liability by § 2 of the Webb-Pomerene Act, 40 Stat. 517 (1918), 15 U. S. C. § 62, as “act[s] done in the course of export trade.” The trial court held that the Webb-Pomerene Act did immunize appellees’ conduct, 273 F. Supp. 263 (1967), and dismissed the complaint. The Government perfected a direct appeal to this Court under the Expediting Act, 32 Stat. 823 (1903), as amended, 15 U. S. C. § 29. Probable jurisdiction was noted, 390 ü. S. 1001 (1968).

I.

We are met at the outset with appellees’ contention that this case is now moot. Appellees’ argument rests on two events which occurred after the case had been submitted to the District Court. On January 1, 1967, the Agency for International Development (AID), the State Department agency in charge of the foreign aid program, amended its regulations to preclude Webb-Pomerene associations from bidding on certain procurement contracts whenever procurement was limited to United States suppliers. According to appellees, this new regulation made it uneconomical for the association to continue in operation, since a large proportion of AID-financed procurement is limited to American sources. Accordingly, on December 28, 1967, appellee association dissolved itself. The new regulation and the dissolution, we are told, moot this case.

Two factors make this argument untenable. First of all, the dissolved association was not the only defendant in this case. The Government sought injunctive relief against the association’s members as well; they were to be prohibited from forming any new export associations without court approval and from continuing in effect any prices jointly agreed upon. Therefore, even if dissolution would have made it impossible to frame effective relief were the association the only party, here there is no such difficulty. Secondly, the new AID regulation does not apply to all contracts on which the former members of the association might bid. Whenever foreign bidders are eligible, AID still permits American Webb-Pomerene associations to compete. In fact, foreign bidders were eligible in all 11 of the transactions which gave rise to this suit. Therefore, however much the new regulation may reduce the practical importance of this case, it does not completely remove the controversy. Absent the relief prayed for, appellees would be free to act in concert in certain situations where the Government contends they must compete.

The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave “[t]he defendant . . . free to return to his old ways.” United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); see, e. g., United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. But here we have only appellees’ own statement that it would be uneconomical for them to engage in any further joint operations. Such a statement, standing alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellees’ shoes. United States v. W. T. Grant Co., 345 U. S., at 633. Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Id., at 633-636. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it.

II.

The 11 transactions involved in this case were not simple cash purchases by the Republic of Korea. Not only were they financed by the United States Government; AID retained effective control over them at every stage.

The transactions involved were controlled by an impressive network of international treaties and agreements, as well as by American statutes, regulations, and administrative procedures. The procurement process, as revealed by the stipulated record, was rather involved. It began when funds were appropriated by Congress. Those funds were allocated to various development programs by AID, in accordance with the provisions of the applicable statutes and AID’s assessments of its priorities. The money allocated to Korea by this process was not simply shipped to Seoul, to be used as Korea wished. In fact, most of it never left this country. In accordance with a series of agreements, Korea was authorized to request that the United States finance purchases of certain “eligible commodities.” A rather complicated “Procurement Authorization Application” was then prepared on an AID form for Korean signature. The application sets forth not only the goods to be purchased but also rather detailed specifications of quality, delivery plans, bidding procedures, and a statement explaining Korea’s need for the goods. Even though AID officials obviously must have participated in drafting these “requests,” AID was in no way obligated to approve them. The agreement with Korea specifically states that AID “may decline to finance any specific commodity or service when, in its judgment, such financing would be inconsistent with the purposes of this grant or of the Foreign Assistance Act of 1961, as amended.” When each transaction was approved, a “Procurement Authorization” was issued by AID; it was specifically made subject to detailed regulations which specify the procedures to be followed in awarding any contracts. It also contained an authorization to a specified American bank to pay for the goods to be procured.

After AID had in this way chosen what goods were to be purchased, either of two methods of procurement was used. In two cases, the Government itself let the contracts, through its General Services Administration. In the other nine cases, the formal act of letting the contracts was performed by the Office of Supply of the Republic of Korea (OSROK). In performing this task, the Koreans were subject to detailed regulation by AID. The invitation for bids even had to be submitted to AID so that it could be circulated in this country. All documents had to be in English, and criteria for selecting the winning contractors were carefully defined in advance. An abstract of bids received and a notice naming the contractor selected had to be sent to Washington. Finally, a letter of credit was issued, the supplier paid, and the payor bank reimbursed by the United States Treasury. The goods were shipped consigned to OSROK, but AID — as a last precaution — reserved the right to vest title in itself if “such action is necessary to assure compliance with the provisions or purposes of any act of Congress.” 22 CFR § 201.44 (1968).

We are asked to decide whether transactions of this sort constitute “act[s] done in the course of export trade,” within the meaning of the Webb-Pomerene exemption from the Sherman Act. Although the Webb-Pomerene Act has been on the statute books for a half century, this is the first time this Court has been called upon to interpret the meaning of the words “export trade.” Upon a full consideration of the language, the purpose, and the legislative history of the statute, we reverse the judgment below.

III.

The Webb-Pomerene Act was passed “to aid and encourage our manufacturers and producers to extend our foreign trade.” H. R. Rep. No. 1118, 64th Cong., 1st Sess., 1 (1916). Congress felt that American firms needed the power to form joint export associations in order to compete with foreign cartels. But while Congress was willing to create an exemption from the antitrust laws to serve this narrow purpose, the exemption created was carefully hedged in to avoid substantial injury to domestic interests. Congress evidently made the economic judgment that joint export associations could increase American foreign trade without depriving American consumers of the main advantages of competition.

This reading of the Act is confirmed both by its structure and its legislative history. The Act itself contains a number of provisos obviously designed to protect domestic interests from the combinations Congress was authorizing. No act done by the export association could be “in restraint of trade within the United States/’ § 2, 15 U. S. C. § 62; the words “export trade” were to exclude, among other things, “selling for consumption . . . within the United States,” § 1, 15 U. S. C. § 61; and the association was forbidden to enter into any agreement “which artificially or intentionally enhances or depresses prices within the United States . . . , or which substantially lessens competition within the United States or otherwise restrains trade therein,” § 2, 15 U. S. C. § 62.

The legislative history is even more explicit. During the hearings on the bill, one Congressman, Charles C. Carlin of Virginia, stated clearly what was later to be one of the dominant themes of the floor debate. In a question addressed to the Chairman of the Federal Trade Commission, who was testifying in support of the bill, he said:

“I am frank to say that personally I have no sympathy with what a foreigner pays for our products; I would like to see the American manufacturers get the largest price possible, but if by indirection we are going to set up a system which is going to fix a higher price eventually at home, through a combination as suggested in this bill, I think you can very well see that such a system is a very dangerous one.” Hearings before the House Committee on the Judiciary on H. R. 16707, 64th Cong., 1st Sess., 7 (1916).

The same theme was reiterated on the floor by the Act’s two main sponsors. Senator Pomerene said bluntly, “[W]e have not reached that high plane of business morals which will permit us to extend the same privileges to the peoples of the earth outside of the United States that we extend to those within the United States.” 55 Cong. Rec. 2787 (1917). And Congressman Webb declared, “I would be willing that there should be a combination between anybody or anything for the purpose of capturing the trade of the world, if they do not punish the people of the United States in doing it.” 55 Cong. Rec. 3580 (1917).

In this atmosphere, the Act was passed. It is clear what Congress was doing; it thought it could increase American exports by depriving foreigners of the benefits of competition among American firms, without in any significant way injuring American consumers. Cf. United States Alkali Export Assn. v. United States, 325 U. S. 196, 211 (1945). The validity of this economic judgment is not for us to question, but it is quite relevant in interpreting the language Congress chose. The question before us is whether Congress meant its exemption to insulate transactions initiated, controlled, and financed by the American Government, just because a foreign government is the nominal “purchaser.” We think it did not.

In interpreting the antitrust laws, we are not bound by formal conceptions of contract law. Simpson v. Union Oil Co., 377 U. S. 13 (1964). We must look at the economic reality of the relevant transactions. Here, although the fertilizer shipments were consigned to Korea and although in most cases Korea formally let the contracts, American participation was the overwhelmingly dominant feature. The burden of noncompetitive pricing fell, not on any foreign purchaser, but on the American taxpayer. The United States was, in essence, furnishing fertilizer to Korea. AID selected the commodity, determined the amount to be purchased, controlled the contracting process, and paid the bill. The foreign elements in the transactions were, by comparison, insignificant. It stretches neither the language nor the purpose of the Act to determine that such sales are not “exports.”

Appellees contend that a contrary result should be reached because they were competing for contracts with foreign suppliers. Evidently, it is their contention that they therefore fall within the class which Congress intended to allow to form export associations. But AID has already given American suppliers great competitive advantages in their battle with foreign firms. The governing statute requires a preference for American procurement. Foreign Assistance Act of 1961, § 604, 75 Stat. 439, 22 U. S. C. § 2354. On none of the contracts involved here were any of the major trading nations of the world eligible to compete; procurement was limited essentially to the United States and the underdeveloped countries. To say that American producers need an additional stimulus to be able to compete strains credulity. The major impact of allowing the combination appellees desire would not be to encourage American exports; it would be to place the burden of noncompetitive pricing on the shoulders of the American taxpayer. But whatever the impact on exports might be, it is clear that the framers of the Webb-Pomerene Act did not intend that Americans should be deprived of the main benefits of competition among American firms. Since in all relevant aspects the transactions involved here were American, not Korean, we hold that they are not “export trade” within the meaning of the Webb-Pomerene Act. On remand, the District Court may decide the other issues relevant to a resolution of the controversy.

Reversed.

Mr. Justice Harlan took no part in the decision of this case.

Mr. Justice White,

with whom Mr. Justice Stewart joins, dissenting.

The majority holds today that concentrated phosphate shipped from an American firm in Florida to the Republic of Korea, which has itself solicited bids on the world market, are not “exports” within the meaning of the Webb-Pomerene Act, § 1, 40 Stat. 516 (1918), 15 U. S. C. § 61. The United States supplied the funds which Korea used to pay for the purchases, and retained limited power to control their expenditure. Korea was not obliged to repay the funds to the United States directly, but it was required to set aside proceeds of resale of the phosphate as “counterpart funds” to be spent in ways prescribed by the United States. This decision conforms neither to the plain meaning of the word “exports” nor to the underlying purposes of the Webb-Pomerene Act.

The statute defines “export trade” as trade in goods “exported, or in the course of being exported from the United States.” § 1, 15 U. S. C. § 61. In this case, more than 800,000 tons of concentrated phosphate were shipped directly from the association in Florida to Korea. In any ordinary sense, these “goods” were “exported from the United States.” Even the AID regulations refer to receiving countries as “importers” and to these transactions as “exports.” E. g., 22 CFR §201.42 (1968). And the District Court found that AID encouraged, or at least tolerated, bidding by Webb-Pomerene associations in these transactions. Nor does the exclusion from the definition of exports of goods sold “for consumption . . . within the United States,” § 1, 15 U. S. C. § 61, discussed by the majority, have any application to this case. The parties have so stipulated, since the phosphate ivas obviously to be consumed in Korea. And there is no contention here that purely domestic trade was “restrained” in any way, or that prices in it were “enhanced” or “depressed.” Given the clarity of the statute, there is no need to resort to legislative history. E. g., Unexcelled Chemical Corp. v. United States, 345 U. S. 59, 64 (1953).

But even the legislative history lends no support to the majority, and indeed leads to a contrary conclusion. The majority asserts that Congress thought it could increase American exports by ending competition for foreign shipments among American firms without impairing domestic competition. That is correct. Congress recognized that trade in foreign nations is not ringed about with the antitrust restrictions which keep domestic industry competitive. Congress found foreign trusts to have substantial advantages over their American competitors. They can offer to extend credit and fill large orders which no single American firm could fill; they can maintain staffs to keep in touch with foreign demand more cheaply than any single American seller; and their advertising and distribution costs are generally lower than those of separate American firms. Having made these findings, Congress concluded that American firms should be allowed to combine to achieve lower costs, lower prices, and more comprehensive and effective service, in order to be able to compete on an equal footing for foreign shipments.

In a transaction such as this, where American goods compete with foreign goods for foreign consumption, Congress had no objection to the formation of American associations to achieve lower prices and compete with foreign suppliers. That such competition was involved here is graphically illustrated by the fact that in most of the Korean purchases involved in this case foreign bidders were successful in capturing at least part of the market, and the Government admits that foreign competition was never absent. It was precisely to enable American firms to meet such competition that the Webb-Pomerene Act was passed.

Moreover, it is no kindness to the American taxpayer to carve out an exception forbidding the formation of Webb-Pomerene associations in this case, given the assumptions on which the Act was passed. Congress specifically discussed phosphate as a commodity where American associations were necessary in order to achieve the savings and organization which would enable them to compete with foreign cartels in price and service. Without Webb-Pomerene associations, Congress concluded that American firms could not underbid their foreign competitors. Even in this case, with the Association bidding, foreign cartels captured 18% of the business. Under the majority opinion, American taxpayers would be paying out more American dollars to buy from foreign cartels goods which could have been obtained more cheaply from American associations employing American workers.

Congress explicitly found that Webb-Pomerene associations would lead to lower, not higher, prices in competition with foreign suppliers. It was on this basis that joint efforts by American companies in the export trade were exempted from the antitrust laws. Those charged with the duty faithfully to execute the laws should honor that exemption, not challenge it with facile assertions that the Act was “chauvinistic.” Certainly this Court is not equipped or empowered to challenge either the exemption or the assumptions on which it rests.

To carve out an exception from the word “export” based on this Court’s notions of sound economic policy is to contradict the plain words of the statute and the congressional judgment that American associations were necessary to lower prices and combat foreign competition. If such an exception were ever justified, it would be in a case where not only are Americans paying the bill, but also foreign competition is absent. This is not such a case.-

       Appellee-members are American Cyanamid Co., W. It. Grace & Co., International Minerals & Chemical Corp., Tennessee Corp., and Mobil Oil Corp. Not all of these companies were members during the entire period involved in this case; the association was dissolved on December 28, 1967.

       “Nothing contained in sections 1-7 of this title shall be construed as declaring to be illegal an association entered into for the sole purpose of engaging in export trade and actually engaged solely in such export trade, or an agreement made or act done in the course of export trade by such association, provided such association, agreement, or act is not in restraint of trade within the United States, and is not in restraint of the export trade of any domestic competitor of such association: Provided, That such association does not, either in the United States or elsewhere, enter into any agreement, understanding, or conspiracy, or do any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein.''
      Section 1 of the Act, 40 Stat. 516 (1918), 15 U. S. C. §61, defines “export trade” as “solely trade or commerce in goods, wares, or merchandise exported, or in the course of being exported from the United States or any Territory thereof to any foreign nation; but the words ‘export trade’ shall not be deemed to include the production, manufacture, or selling for consumption or for resale, within the United States or any Territory thereof, of such goods, wares, or merchandise, or any act in the course of such production, manufacture, or selling for consumption or for resale.”

       31 Fed. Reg. 16693 (1966), codified as 22 CFR §§201.01 (v), 201.52 (a) (7), Appendix D (1968). The amended regulation applies only to certain specified commodities.

       Motion to Affirm or Dismiss 5, 14-15.

       See AID, Operations Report, Fiscal Year 1967, p. 74. The very large percentage of foreign aid procurement actually coming from American sources exceeds that required by regulation.

       Appellees contend that economic factors dictated the dissolution, supra, n. 4, and the Government does not argue that the dissolution was related to the fact that a notice of appeal in this case was filed on November 9, 1967.

       The Government evidently does not contest the "export” status of two fertilizer sales to Korea made in 1962. One was paid for by Korea’s own foreign exchange funds; the other was financed out of a special stabilization fund granted by the United States. The use of this latter fund was not as fully controlled as were the grants which financed the 11 purchases involved here.

       This particular limitation to a specific list of commodities is contained in the record in a Program Assistance Grant Agreement, dated November 29, 1965. Appendix 108, 116. Although this agreement could not have applied to the earlier transactions involved here, the stipulated record contains only examples — and not a complete compilation — of all the documents involved. In any case, earlier agreements which are included in the record contain limitations which give the Government equivalent powers. See, e. g., Appendix 81.

       These regulations are collected in 22 CFB, §201 (1968).

       The Government raises no questions under any of the various provisos included in the Webb-Pomerene Act. Accordingly, we intimate no opinion about their scope.

       There was a brief mention during the congressional debates of the existence of American loans to European nations whose purchasing power might be reduced by higher American export prices. See 55 Cong. Rec. 2789 (1917). Such an isolated statement cannot determine the meaning of a statute. But in any case, it is clear that America’s World War I loans bear little if any resemblance to the modern foreign aid program. Not only was it expected that they would be repaid, but also the loans were not made subject to the detailed American administrative control typical of today’s foreign aid program.

       In two of the 11 transactions challenged here, the General Services Administration solicited the bids for Korea, but neither the Government nor the Court finds that distinction significant.

       These funds were used to support the Korean and American military establishments in Korea and to finance public works. They were generally available to the United States “as requested.”

       Indeed, even government statistics relating, to balance of payments refer to shipments such as these as “exports.” E. g., Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 1968, at 669, 801; 15 CFR §30.1 et seq. (1968).

       §2, 15 U. S. C. §62.

       See, e. g., S. Rep. No. 1056, 64th Cong., 2d Sess. (1917); H. R. Rep. No. 1118, 64th Cong., 1st Sess. (1916); Hearings on H. R. 17350 before the Senate Committee on Interstate Commerce, 64th Cong., 2d Sess., 44 (1917).

       Thirteen phosphate purchases were made by Korea, of which the Government challenges only the 11 to which the AID regulations apply. In those transactions alone, foreign bidders captured 18% of the business.

       56 Cong. Rec. 110-111 (remarks of Senator Kellogg).


author: Per Curiam.

text:
    ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al. v. UNITED STATES et al.
    No. 520.
    Decided November 25, 1968.

      S. R. Brittingham, Jr., for Atchison, Topeka & Santa Fe Railway Co., and Albert E. Jenner, Jr., Thomas P. Sullivan, William R. McDowell, Thomas L. Farmer, and Thomas A. Loose for the Texas & Pacific Railway Co. et al., appellants.

      Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, and Robert W. Ginnane for the United States et al., and Richard Maguire and Gavin W. O’Brien for the Permian Basin Railroad Co., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    CITY OF AUSTIN v. WEBSTER.
    No. 499.
    Decided November 25, 1968.

      James W. Wilson for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    COLLINS v. COMMISSIONER OF INTERNAL REVENUE.
    No. 134.
    Decided November 25, 1968.

      Donald P. Moyers for petitioner.

      Solicitor General Griswold, Assistant Attorney General Rogovin, Jonathan S. Cohen, and Robert J. Campbell for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of the opinion of the Supreme Court of Oklahoma in Collins v. Oklahoma Tax Comm’n, 446 P. 2d 290.


text:
    ARTHUR v. VIRGINIA.
    No. 501.
    Decided November 25, 1968.

      Wm. Rosenberger, Jr., for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    FARBENFABRIKEN BAYER A. G. v. UNITED STATES.
    No. 504.
    Decided November 25, 1968.

      Allen F. Maulsby, Arnold M. Lerman, Max 0. Truitt, Jr., and Daniel K. Mayers for appellant.

      Solicitor General Griswold for the United States.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.


text:
    GREEN v. TURNER, WARDEN.
    No. 88,
    Misc.
    Decided November 25, 1968.

      Phil L. Hansen, Attorney General of Utah, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Garrison v. Patterson, 391 U. S. 464.


text:
    STAMLER et al. v. WILLIS et al.
    No. 478.
    Decided November 25, 1968.

      Albert E. Jenner, Jr., Thomas P. Sullivan, and Arthur Kinoy for appellants in No. 478. Mr. Jenner for appellant in No. 479.

      Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson for appellees in both eases.
    Briefs of amici curiae were filed by Jack G. Day and Melvin L. Wulf for the American Civil Liberties Union, and by Vern Countryman, Robert F. Drinan, Clark Byse, David F. Cavers, George T. Frampton, and Ira M. Hey-man for certain law school deans and professors.

       Together with No. 479, Cohen v. Willis et al., also on appeal from the same court.

   Per Curiam.

The motion to dismiss is granted and the appeals are dismissed.

Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Harlan are of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the cases on the merits and that the cases should be set for oral argument.

Mr. Justice Marshall took no part in the consideration or decision of these cases.


text:
    PALMIERI v. FLORIDA.
    No. 131.
    Argued November 20, 1968.
    Decided December 9, 1968.

      Phillip Goldman, by appointment of the Court, 392 U. S. 920, argued the cause and filed a brief for petitioner.

      Howard Mendelow, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Earl Faircloth, Attorney General, and Edward Cowart, Assistant Attorney General.
   Per Curiam.

The petitioner was convicted of robbery in the Criminal Court of Dade County, Florida, and the judgment of conviction was affirmed by the District Court of Appeal, 189 So. 2d 512, and the Supreme Court of Florida, 198 So. 2d 633. We granted certiorari because the case appeared to present a substantial constitutional question concerning the admissibility at trial of “lineup” identifications made after the petitioner was arrested without probable cause for the sole purpose of gathering evidence against him. 391 U. S. 934. However, upon the complete review of the record that has now become possible, and in the light of oral argument by able and conscientious counsel, it has become evident that the legality of the petitioner’s arrest was not at issue in the Florida appellate courts, and is not challenged here. Accordingly, the writ is dismissed as improvidently granted.

It is so ordered.


text:
    STILES v. UNITED STATES.
    No. 74.
    Argued November 20, 1968.
    Decided December 9, 1968.

      Charles J. Rogers, Jr., by appointment of the Court, post, p. 813, argued the cause and filed a brief for petitioner.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Jerome M. Feit, and Lawrence P. Cohen.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.


text:
    SHAW v. GARRISON et al.
    No. 579.
    Decided December 9, 1968.

      Herve Racivitch for appellant.

      Eberhard P. Deutsch and René H. Himel, Jr., for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

The Chief Justice took no part in the consideration or decision of this case.


text:
    LANDRY et al. v. BOYLE, CHIEF JUDGE, et al.
    No. 659.
    Decided December 9, 1968.

      Robert L. Tucker, R. Eugene Pincham, Jean F. Williams, Leonard Karlin, William M. Kunstler, and Arthur Kinoy for appellants.
   Per Curiam.

The appeal is dismissed for failure to comply with Rule 13 (1).


text:
    MOORE v. OHIO.
    No. 423,
    Misc.
    Decided December 9, 1968.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    CROSS v. ILLINOIS.
    No. 747,
    Misc.
    Decided December 9, 1968.

      John Unger for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SOUTH CAROLINA STATE BOARD OF EDUCATION et al. v. BROWN et al.
    No. 553.
    Decided December 9, 1968.

      Daniel B. McLeod, Attorney General of South Carolina, and D. W. Robinson for appellants in No. 563. J. C. Long for appellants in No. 563.

      Solicitor General Griswold and Assistant Attorney General Poliak for appellee United States in both cases.

       Together with No. 563, Cribb et al. v. Brown et al., also on appeal from the same court.

   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


author: Mr. Justice Black Mr. Justice Harlan, Mr. Justice Stewart,

text:
    FEDERAL TRADE COMMISSION v. TEXACO INC. et al.
    No. 24.
    Argued November 13, 1968.
    Decided December 16, 1968.

      Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Griswold, Assistant Attorney General Turner, Lawrence G. Wallace, James Mel. Henderson, and Alvin L. Berman.

      Milton Handler and Edgar E. Barton argued the cause for respondents. With them on the brief were Stanley D. Robinson and Macdonald Flinn.

   Mr. Justice Black

delivered the opinion of the Court.

The question presented by this case is whether the FTC was warranted in finding that it was an unfair method of competition in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45, for respondent Texaco to undertake to induce its service station dealers to purchase Goodrich tires, batteries, and accessories (hereafter referred to as TBA) in return for a commission paid by Goodrich to Texaco. In three related proceedings instituted in 1961, the Commission challenged the sales-commission method of distributing TBA and in each case named as a respondent a major oil company and a major tire manufacturer. After extensive hearings, the Commission concluded that each of the arrangements constituted an unfair method of competition and ordered each tire company and each oil company to refrain from entering into any such commission arrangements. In one of these cases, Atlantic Refining Co. v. FTC, 381 U. S. 357 (1965), this Court affirmed the decision of the Court of Appeals for the Seventh Circuit sustaining the Commission's order against Atlantic Refining Company and the Goodyear Tire & Rubber Company. In a second case, Shell Oil Co. v. FTC, 360 F. 2d 470, cert. denied, 385 U. S. 1002, the Court of Appeals for the Fifth Circuit, following this Court’s decision in Atlantic, sustained the Commission’s order against the Shell Oil Company and the Firestone Tire & Rubber Company. In contrast to the decisions of these two Courts of Appeals, the Court of Appeals for the District of Columbia Circuit set aside the Commission’s order in this, the third of the three cases, involving respondents Goodrich and Texaco. 118 U. S. App. D. C. 366, 336 F. 2d 754 (1964). The Commission petitioned this Court for review and, one week following our Atlantic decision, we granted certiorari and remanded for further consideration in light of that opinion. 381 U. S. 739 (1965). The Commission, on remand, reaffirmed its conclusion that the Texaco-Goodrich arrangement, like that involved in the other two cases, violated § 5 of the Federal Trade Commission Act. The Court of Appeals for the District of Columbia Circuit again reversed, this time holding that the Commission had failed to establish that Texaco had exercised its dominant economic power over its dealers or that the Texaco-Goodrich arrangement had an adverse effect on competition. 127 ü. S. App. D. C. 349, 383 F. 2d 942. We granted certiorari to determine whether the court below had correctly applied the principles of our Atlantic decision. 390 U. S. 979.

Congress enacted § 5 of the Federal Trade Commission Act to combat in their incipiency trade practices that exhibit a strong potential for stifling competition. In large measure the task of defining “unfair methods of competition” was left to the Commission. The legislative history shows that Congress concluded that the best check on unfair competition would be “an administrative body of practical men . . . who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations.” H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 19. Atlantic Refining Co. v. FTC, 381 U. S. 357, 367. While the ultimate responsibility for the construction of this statute rests with the courts, we have held on many occasions that the determinations of the Commission, an expert body charged with the practical application of the statute, are entitled to great weight. FTC v. Motion Picture Advertising Serv. Co., 344 U. S. 392, 396 (1953); FTC v. Cement Institute, 333 U. S. 683, 720 (1948). This is especially true here, where the Commission has had occasion in three related proceedings to study and assess the effects on competition of the sales-commission arrangement for marketing TBA. With this in mind, we turn to the facts of this case.

The Commission and the respondents agree that the Texaco-Goodrich arrangement for marketing TBA will fall under the rationale of our Atlantic decision if the Commission was correct in its three ultimate conclusions (1) that Texaco has dominant economic power over its dealers; (2) that Texaco exercises that power over its dealers in fulfilling its agreement to promote and sponsor Goodrich products; and (3) that anticompetitive effects result from the exercise of that power.

That Texaco holds dominant economic power over its dealers is clearly shown by the record in this case. In fact, respondents do not contest the conclusion of the Court of Appeals below and the Court of Appeals for the Fifth Circuit in Shell that such power is “inherent in the structure and economics of the petroleum distribution system.” 127 U. S. App. D. C. 349, 353, 383 F. 2d 942, 946; 360 F. 2d 470, 481 (C. A. 5th Cir.). Nearly 40% of the Texaco dealers lease their stations from Texaco. These dealers typically hold a one-year lease on their stations, and these leases are subject to termination at the end of any year on 10 days’ notice. At any time during the year a man’s lease on his service station may be immediately terminated by Texaco without advance notice if in Texaco’s judgment any of the “housekeeping” provisions of the lease, relating to the use and appearance of the station, are not fulfilled. The contract under which Texaco dealers receive their vital supply of gasoline and other petroleum products also runs from year to year and is terminable on 30 days’ notice under Texaco’s standard form contract. The average dealer is a man of limited means who has what is for him a sizable investment in his station. He stands to lose much if he incurs the ill will of Texaco. As Judge Wisdom wrote in Shell, “A man operating a gas station is bound to be overawed by the great corporation that is his supplier, his banker, and his landlord.” 360 F. 2d 470, 487.

It is against the background of this dominant economic power over the dealers that the sales-commission arrangement must be viewed. The Texaco-Goodrich agreement provides that Goodrich will pay Texaco a commission of 10% on all purchases by Texaco retail service station dealers of Goodrich TBA. In return, Texaco agrees to “promote the sale of Goodrich products” to Texaco dealers. During the five-year period studied by the Commission (1952-1956) $245,000,000 of the Goodrich and Firestone TBA sponsored by Texaco was purchased by Texaco dealers, for which Texaco received almost $22,000,000 in retail and wholesale commissions. Evidence before the Commission showed that Texaco carried out its agreement to promote Goodrich products through constantly reminding its dealers of Texaco’s desire that they stock and sell the sponsored Goodrich TBA. Texaco emphasizes the importance of TBA and the recommended brands as early as its initial interview with a prospective dealer and repeats its recommendation through a steady flow of campaign materials utilizing Goodrich products. Texaco salesmen, the primary link between Texaco and the dealers, promote Goodrich products in their day-to-day contact with the Texaco dealers. The evaluation of a dealer’s station by the Texaco salesman is often an important factor in determining whether a dealer’s contract or lease with Texaco will be renewed. Thus the Texaco salesmen, whose favorable opinion is so important to every dealer, are the key men in the promotion of Goodrich products, and on occasion accompany the Goodrich salesmen in their calls on the dealers. Finally, Texaco receives regular reports on the amount of sponsored TBA purchased by each dealer. Respondents contend, however, that these reports are used only for maintaining Texaco’s accounts with Goodrich and not for policing dealer purchases.

Respondents urge that the facts of this case are fundamentally different from those involved in Atlantic because of the presence there, and the absence here, of “overt coercive practices” designed to force the dealers to purchase the sponsored brand of TBA. We agree, as the Government concedes, that the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic. The Atlantic record contained direct evidence of dealers threatened with cancellation of their leases, the setting of dealer quotas for purchase of certain amounts of sponsored TBA, the requirement that dealers purchase TBA from single assigned supply points, refusals by Atlantic to honor credit card charges for nonsponsored TBA, and policing of Atlantic dealers by “phantom inspectors.” While the evidence in the present case fails to establish the kind of overt coercive acts shown in Atlantic, we think it clear nonetheless that Texaco’s dominant economic power was used in a manner which tended to foreclose competition in the marketing of TBA. The sales-commission system for marketing TBA is inherently coercive. A service station dealer whose very livelihood depends upon the continuing good favor of a major oil company is constantly aware of the oil company’s desire that he stock and sell the recommended brand of TBA. Through the constant reminder of the Texaco salesman, through demonstration projects and promotional materials, through all of the dealer’s contacts with Texaco, he learns the lesson that Texaco wants him to purchase for his station the brand of TBA which pays Texaco 10% on every retail item the dealer buys. With the dealer’s supply of gasoline, his lease on his station, and his Texaco identification subject to continuing review, we think it flies in the face of common sense to say, as Texaco asserts, that the dealer is “perfectly free” to reject Texaco’s chosen brand of TBA. Equally applicable here is this Court’s judgment in Atlantic that “[i]t is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers.” 381 U. S., at 376.

We are similarly convinced that the Commission was correct in determining that this arrangement has an adverse effect on competition in the marketing of TBA. Service stations play an increasingly important role in the marketing of tires, batteries, and other automotive accessories. With five major companies supplying virtually all of the tires that come with new cars, only in the replacement market can the smaller companies hope to compete. Ideally, each service station dealer would stock the brands of TBA that in his judgment were most favored by customers for price and quality. To the extent that dealers are induced to select the sponsored brand in order to maintain the good favor of the oil company upon which they are dependent, the operation of the competitive market is adversely affected. As we noted in Atlantic, the essential anticompetitive vice of such an arrangement is “the utilization of economic power in one market to curtail competition in another.” 381 U. S. 357, 369. Here the TBA manufacturer has purchased the oil company’s economic power and used it as a partial substitute for competitive merit in gaining a major share of the TBA market. The nonsponsored brands do not compete on the even terms of price and quality competition; they must overcome, in addition, the influence of the dominant oil company that has been paid to induce its dealers to buy the recommended brand. While the success of this arrangement in foreclosing competitors from the TBA market has not matched that of the direct coercion employed by Atlantic, we feel that the anticompetitive tendencies of such a system are clear, and that the Commission was properly fulfilling the task that Congress assigned it in halting this practice in its incipiency. The Commission is not required to show that a practice it condemns has totally eliminated competition in the relevant market. It is enough that the Commission found that the practice in question unfairly burdened competition for a not insignificant volume of commerce. International Salt Co. v. United States, 332 U. S. 392 (1947); United States v. Loew’s, Inc., 371 U. S. 38, 45, n. 4 (1962); Atlantic Refining Co. v. FTC, 381 U. S. 357, 371 (1965).

The Commission was justified in concluding that more than an insubstantial amount of commerce was involved. Texaco is one of the Nation’s largest petroleum companies. It sells its products to approximately 30,000 service stations, or about 16.5% of all service stations in the United States. The volume of sponsored TBA purchased by Texaco dealers in the five-year period 1952-1956 was $245,000,000, almost five times the amount involved in the Atlantic case.

For the reasons stated above, we reverse the judgment below and remand to the Court of Appeals for enforcement of the Commission’s order with the exception of paragraphs five and six of the order against Texaco, the setting aside of which by the Court of Appeals the Government does not contest.

Reversed and remanded.

Mr. Justice Harlan,

concurring.

I join the Court’s opinion, with the following statement. To the extent that my action in joining today’s opinion is inconsistent with my action in joining my Brother Stewart’s dissent in Atlantic Refining Co. v. FTC, 381 U. S. 357, 377 (1965), candor compels me to say that further reflection has convinced me that the portions of the Commission’s order which the Court today sustains were within the authority granted to the Commission under § 5 of the Federal Trade Commission Act.

Mr. Justice Stewart,

dissenting.

We are told today that “[t]he sales-commission system for marketing TBA is inherently coercive.” If that is so, then the Court went to a good deal of unnecessary trouble in Atlantic Refining Co. v. FTC, 381 U. S. 357, 368, to establish that Atlantic “not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and overt threats of reprisal . . . .”

The Court acknowledges that “the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic.” But that is an understatement. For the fact is that in this case the Court of Appeals was totally unable to “find that Texaco used its controlling economic power to compel its dealers to purchase sponsored TBA.” 127 U. S. App. D. C. 349, 356, 383 F. 2d 942, 949. That is why this Court must perforce create today’s per se rule of “inherent” coercion.

For the reasons set out at some length in my separate opinion in Atlantic, supra, at 377, I cannot agree to any such per se rule. Accordingly, I would affirm the judgment of the Court of Appeals.

       The sales-commission arrangement between Texaco and the Firestone Tire & Rubber Company was also the subject of Commission action. Firestone is not a respondent in this action, however, since it is already subject to a final order of the Commission prohibiting its use of a sales-commission plan with any oil company. See Shell Oil Co. v. FTC, 360 F. 2d 470, 474 (C. A. 5th Cir.), cert. denied, 385 U. S. 1002.

       The Commission’s conclusion that under a sales-commission plan, a dealer would not make his choice solely on the basis of competitive merit was bolstered by the testimony of 31 sellers of competing, nonsponsored TBA that they were unable to sell to particular Texaco stations because of the dealers’ concern that Texaco would disapprove of their purchase of nonsponsored products.