author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al. v. ROBERTSON et al.
    No. 74-450.
    Argued April 15, 1975 —
    Decided June 24, 1975

      Deputy Solicitor General Friedman argued the cause for petitioners. On the brief were Solicitor General Bork, Assistant Attorney General Hills, Allan Abbot Tuttle, Leonard Schaitman, and Thomas G. Wilson.

      Alan B. Morrison argued the cause and filed a brief for respondents.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U. S. C. § 552 (b)(3), permits nondisclosure to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if “specifically-exempted from disclosure by statute.” The reports are known as Systems Worthiness Analysis Program (SWAP) Reports. They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Oversight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775, as amended, 49 U. S. C. § 1421. The FAA claims the documents are protected from disclosure by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U. S. C. § 1504.

The facts of the case, in its present posture, are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that “ ‘[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,’ ” and argued that “[t]he present practice of non-public submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety — the paramount consideration of airlines and government alike in this area.” In February 1971, the FAA formally denied respondents’ request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U. S. C. § 552 (b)(3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U. S. C. § 552 (b)(5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552 (b)(7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552 (b)(4)). The FAA’s answer also explained its view of the need for confidentiality in SWAP Reports:

“The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors.”

Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that “the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [§] 552, and plaintiffs are entitled to judgment ... as a matter of law.”

A divided Court of Appeals affirmed the judgment of the District Court “insofar as appellants rely upon Exemption (3),” but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U. S. App. D. C. 298, 498 F. 2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated “broad discretionary authority” under a “public interest” standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court’s decision in EPA v. Mink, 410 U. S. 73 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret “ 'in the interest of the national defense or foreign policy/ ” 162 TJ. S. App. D. C., at 300,498 F. 2d, at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act’s major purposes was seen as intending to eliminate what it characterized as vague phrases such as “in the public interest” or “for good cause” as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act.

This case involves no constitutional claims, no issues regarding the nature or scope of “executive privilege,” but simply the scope and meaning of one of the exemptions of the Freedom of Information Act, 5 U. S. C. § 552. EPA v. Mink, supra, at 94 (Stewart, J., concurring). The Act has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential in certain areas of Government operations. It is axiomatic that all parts of an Act “if at all possible, are to be given effect.” Weinberger v. Hynson, Westcott & Dunning, 412 U. S. 609, 633 (1973). Accord, Kokoszka v. Belford, 417 U. S. 642, 650 (1974).

We have construed the Freedom of Information Act recently in NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975); Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974); EPA v. Mink, supra. In Mink, the Court set out the general nature and purpose of the Act, recognizing, as did the Senate committee report, that it is not “ ‘an easy task to balance the opposing interests . . .’” and “ ‘provid[e] a workable formula which encompasses, balances, and protects all interests ....’” 410 U. S., at 80, quoting from S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Nothing in the Act or its legislative history-gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection. Because it considered the public disclosure section of the Administrative Procedure Act, 60 Stat. 238, 5 U. S. C. § 1002 (1964 ed.), inadequate, Congress sought to permit access to certain kinds of official information which it thought had unnecessarily been withheld and, by the creation of nine explicitly exclusive exemptions, to provide a more workable and balanced formula that would make available information that ought to be public and, at the same time, protect certain information where confidentiality was necessary to protect legitimate governmental functions that would be impaired by disclosure. The exemptions provided by the Act, one of which we deal with here, represent the congressional judgment as to certain kinds of “information that the Executive Branch must have the option to keep confidential, if it so chooses,” 410 U. S., at 80. The language of Exemption 3 contains no “built-in” standard as in the case of some of the other exemptions. The variety of constructions given its language by the Courts of Appeals, is ample evidence that the relevant portions of the exemption are unclear and ambiguous, compelling resort to the legislative history. See United States v. Donruss Co., 393 U. S. 297, 303 (1969). Cf. United States v. Oregon, 366 U. S. 643, 648 (1961).

That history must be read in light of the legislation in existence when the Act was passed; that history reveals “clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws.” Regional Rail Reorganization Act Cases, 419 U. S. 102, 129 (1974). Congress was aware, as it undertook a painstaking review, during several sessions, of the right of the public to information concerning the public business; it was aware that it was acting not only against the backdrop of the 1946 Administrative Procedure Act, supra, but also on the basis of a significant number of earlier congressional decisions that confidentiality was essential in certain departments and agencies in order to protect the public interest. No distinction seems to have been made on the basis of the standards articulated in the exempting statute or on the degree of discretion which it vested in a particular Government officer. When the continued vitality of these specialized exempting statutes was raised by the views of various agencies, the members of the committee consistently expressed the clear intention that these statutes would remain unaffected by the new Act. During the 1963 hearings, for example, Senator Long, Chairman of the Senate Subcommittee stated: “It should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies.” Indeed, some provisions of bills which were not enacted could well have been construed as repealing all earlier legislation, but such provisions were not included in the bill that was finally enacted. More specifically, when the Civil Aeronautics Board brought § 1104 to the attention of both the House and Senate hearings of 1965, and expressed the agency interpretation that the provision was encompassed within Exemption 3, no question was raised or challenge made to the agency view of the impact of that exemption. When the House Committee on Government Operations focused on Exemption 3, it took note that there are “nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S. 1160.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.)

The respondents can prevail only if the Act is to be read as repealing by implication all existing statutes “which restrict public access to specific Government records.” Ibid. The term “specific" as there used cannot be read as meaning that the exemption applies only to documents specified, i. e., by naming them precisely or by describing the category in which they fall. To require this interpretation would be to ask of Congress a virtually impossible task. Such a construction would also imply that Congress had undertaken to reassess every delegation of authority to withhold information which it had made before the passage of this legislation — a task which the legislative history shows it clearly did not undertake.

Earlier this Term, Mr. Justice Brennan, speaking for the Court in the Regional Rail Reorganization Act Cases, supra, noted that “repeals by implication are disfavored,” 419 U. S., at 133, and that, when courts are confronted with statutes “ ‘capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’ ” Id., at 133-134, quoting Morton v. Mancari, 417 U. S. 535, 551 (1974). As we have noted, here, as in the Regional Rail Reorganization Act Cases, supra, there is “clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws,” 419 U. S., at 129. To spell out repeal by implication of a multitude of statutes enacted over a long period of time, each of which was separately weighed and considered by Congress to meet an identified need, would be a more unreasonable step by a court than to do so with respect to a single statute such as was involved in the Regional Rail Reorganization Act Cases, supra. Congress’ response was to permit the numerous laws then extant allowing confidentiality to stand; it is not for us to override that legislative choice.

The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, any inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure Act and its intent to preserve, for air transport regulation, a broad degree of discretion on what information is to be protected in the public interest in order to insure continuing access to the sources of sensitive information necessary to the regulation of air transport. Congress could not reasonably anticipate every situation in which the balance must tip in favor of nondisclosure as a means of insuring that the primary, or indeed sole, source of essential information would continue to volunteer information needed to develop and maintain safety standards. The public interest is served by assuring a free flow of relevant information to the regulatory authorities from the airlines. Congress could appropriately conclude that the public interest was better served by guaranteeing confidentiality in order to secure the maximum amount of information relevant to safety. The wisdom of the balance struck by Congress is not open to judicial scrutiny.

It was inescapable that some regulatory authorities be vested with broad, flexible discretion, the exercise of which was made subject to continuing scrutiny by Congress. Following passage of the Act, “[g]eneral oversight into the administration of the Freedom of Information Act [was] exercised by the [House] Foreign Operations and Government Information Subcommittee and the Senate Subcommittee on Administrative Practice and Procedure.” H. R. Rep. No. 92-1419, pp. 3-4 (1972). It is not insignificant that this overall scrutiny of the Act in 1972 brought no change in Exemption 3. Indeed, when Congress amended the Freedom of Information Act in 1974, it reaffirmed the continued vitality of this particular exemption, covering statutes vesting in the agencies wide authority. S. Conf. Rep. No. 93-1200, p. 12 (1974); H. R. Conf. Rep. No. 93-1380, p. 12 (1974).

Moreover, Congress amended the Act in 1974 to require that all agencies submit to each House, on an annual basis, “the number of determinations made by such agency not to comply with requests for records... and the reasons for each such determination.” 88 Stat. 1564, 5 U. S. C. §552 (d)(1) (1970 ed., Supp. IV). In light of this continuing close scrutiny, we are bound to assume that Congress exercised an informed judgment as to the needs of the FAA and that it was persuaded as to the necessity, or at least of the practical compatibility, of both statutes.

Reversed.

Mr. Justice Douglas and Mr. Justice Brennan dissent for the reasons given in Judge Fahy’s opinion for the Court of Appeals, 162 U. S. App. D. C. 298, 498 F. 2d 1031 (1974).

Mr. Justice Stewart,

with whom Mr. Justice Marshall joins, concurring in the judgment.

Exemption 3 of the Freedom of Information Act, 5 U. S. C. § 552 (b) (3), provides for nondisclosure of “matters that are . . . specifically exempted from disclosure by statute.” Section 1104 of the Federal Aviation Act of 1958, 72 Stat. 797, 49 U. S. C. § 1504, specifically provides that when “[a]ny person” objects to the public disclosure of certain information, “the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.” The Court today rules that information may be withheld under § 1104 by reason of Exemption 3.

Legislation of unusually broad scope often reflects reconciliation of conflicting values and policies. On occasion, therefore, particular provisions of such legislation may seem at odds with its basic purpose. But when the statutory language is relatively clear and the legislative history casts no serious doubt, the only appropriate judicial course is to give effect to the evident legislative intent.

So it is here. The Freedom of Information Act was enacted in order to impose objective and easily applicable statutory disclosure standards in place of relatively amorphous standards such as the “public interest,” behind which the most self-serving motives for nondisclosure of information could be concealed. EPA v. Mink, 410 U. S. 73, 79 (1973); and see, e. g., S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). But it seems equally clear that Congress intended to leave largely undisturbed existing statutes dealing with the disclosure of information by specific agencies. See, e. g., H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966).

Simply stated, the respondents’ position is that to allow administrative discretion under a general “public interest” standard to determine whether information shall be disclosed to the public is inconsistent with the general thrust of the Freedom of Information Act. For this Court to accept that position, it must accept its inevitable corollary: that by enacting the Freedom of Information Act, Congress intended to repeal, by implication alone, those statutes that make disclosure a matter of agency discretion. It simply is impossible fairly to discern any such intention on the part of Congress. There is no evidence of such an intention in either the statutory language or the legislative history, and there are strong intimations to the contrary. See ante, at 263-265.

Our role is to interpret statutory language, not to revise it. As matters now stand, when an agency asserts a right to withhold information based on a specific statute of the kind described in Exemption 3, the only question “to be determined in a district court’s de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be.” EPA v. Mink, supra, at 95 n. (Stewart, J., concurring).

On this basis, I concur in the judgment of the Court.

       419 U. S. 1067 (1974).

       The Act was amended in 1974, Pub. L. 93-502, 88 Stat. 1561, to read in pertinent part:

        “(a) Each agency shall make available to the public information as follows:
      “(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U. S. C. § 552 (a) (3) (1970 ed., Supp. IV).
      Exemption 3, which was not amended in 1974, is provided by 5 U. S. C. § 552 (b) (3), which reads as follows:
      “(b) This section does not apply to matters that are—
      “(3) specifically exempted from disclosure by statute.”
      Prior to the 1974 amendments, § 552 (a) (3) read, in pertinent part: “Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. ...” 5 U. S. C. § 552 (a) (3).

       The SWAP is set forth in the Federal Aviation Administration’s Systemworthiness Analysis Program Handbook, 8000.3B (reprinted Nov. 1970) (App. 44H11). A revised version of the SWAP Handbook is contained in FAA Order 8000.3C, Apr. 14, 1972. (With subsequent changes.) See also affidavit of FAA Administrator Shaffer, App. 40.

       Section 1104 provides:
      “Any person may make written objection to the public disclosure of information contained in any application, report, or document filed pursuant to the provisions of this chapter or of information obtained by the Board or the Administrator, pursuant to the provisions of this chapter, stating the grounds for such objection. Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public. The Board or Administrator shall be responsible for classified information in accordance with appropriate law: Provided, That nothing in this section shall authorize the withholding of information by the Board or Administrator from the duly authorized committees of the Congress.”

       The respondents had also sought disclosure of Mechanical Reliability Reports, which are daily reports of mechanical malfunctions submitted to the FAA by the aircraft companies. On January 11, 1972, the Administrator determined that he would permit the disclosure of such documents received after April 18, 1972. The District Court’s subsequent order in this case, on November 8, 1972, ordered disclosure of these documents received prior to that date. The Administrator has not contested this aspect of the District Court’s order either on appeal to the Court of Appeals or in his petition for writ of certiorari to this Court.

       In Evans v. Department of Transportation, 446 F. 2d 821 (CA5 1971), the court held that 49 U. S. C. § 1504, the FAA statute in question here, was within the scope of Exemption 3. 446 F. 2d, at 824. The same Court of Appeals, however, in an unpublished opinion, Serchuk v. Weinberger, affirmance reported at 493 F. 2d 663 (1974), followed the Third Circuit in Stretch v. Weinberger, 495 F. 2d 639 (1974), in holding that 53 Stat. 1398, as amended, 42 U. S. C. § 1306 (a) — requiring the confidentiality of all material obtained by the Secretary of Health, Education, and Welfare “except as the Secretary . . . may by regulations prescribe” — was not within the scope of Exemption 3 because it neither “identifies some class or category of items that Congress considers appropriate for exemption,” 495 F. 2d, at 640, nor at least “sets out legislatively prescribed standards of guidelines that the Secretary must follow in determining what matter shall be exempted from disclosure.” Ibid. Accord, Schechter v. Weinberger, 165 U. S. App. D. C. 236, 238, 506 F. 2d 1275, 1277 (1974) (MacKinnon, J., dissenting) (citing his prior dissenting opinion in the same case, 162 U. S. App. D. C. 282, 498 F. 2d 1015 (1974)). In California v. Weinberger, 505 F. 2d 767 (1974), the Ninth Circuit reached a contrary result in regard to 42 U. S. C. § 1306 (a) on the ground that the general nondisclosure mandate constituted “words of congressional exemption,” 505 F. 2d, at 768, and thus the material was “specifically exempted ... by statute.” The Secretary merely had the authority “to relax the absolute prohibition established by Congress.” Ibid. Cf. Sears v. Gottschalk, 502 F. 2d 122 (CA4 1974), finding sufficient specificity in the term “ [applications for patents” of 35 U. S. C. § 122 and in Rules 14 (a) and (b) of the Patent Office to satisfy even the objections of the Stretch court and to bring 35 U. S. C. § 122 within the scope of Exemption 3.

       Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417, 453 n. 254 (1965).

       Hearings on S. 1666 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 6 (1963) (statement of Senator Long, Chairman of the Subcommittee and sponsor of § 1666, which was not changed, in pertinent part, in the final enactment). See also Hearings on H. R. 5012 et al. before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 14 (1965) (statement of Rep. Moss, Subcommittee Chairman).

        Id., at 3: “All laws or part of laws inconsistent with the amendment made by the first section of this Act are hereby repealed.”

        Id., at 14, 20, 53.

        Id., at 237. See also Hearings on S. 1160 et al. before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 366 (1965). The statute’s predecessor (49 U. S. C. §674) also was specifically listed on an exhibit of “exempt statutes” submitted during the 1958 Hearing on S. 921 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 2d Sess., pt. 2, pp. 985-987, 997. Subsequent lists — specifically not claiming to be exhaustive — include similar statutes. See House-Committee on Government Operations, Federal Statutes on the Availability of Information, 86th Cong., 2d Sess., 213, 209 (Comm. Print Mar. 1960), listing 26 U. S. C. § 6104 (a) and 15 U. S. C. § 78x (b). See generally K. Davis, Administrative Law Treatise § 3A.18 (1970 Supp.).

       A substantial number of statutes leave disclosure of various documents to the discretion of an administrative officer. Examples are 52 Stat. 1398, as amended, 42 U. S. C. § 1306 (a), which prohibits disclosure of “any . . . report . . . obtained at any time by the Secretary of Health, Education, and Welfare ... except as the Secretary ... may by regulations prescribe”; 35 U. S. C. § 122, which provides that information in patent applications cannot be made public by the Patent Office “unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner”; and 38 U. S. C. §3301, which states that all files, records, and other papers pertaining to any claim under any law administered by the Veterans’ Administration are not to be disclosed, except that “[t]he Administrator may release information . . . when in his judgment such release would serve a useful purpose.”

       It should be noted, however, as the Solicitor General has pointed out, that under 49 U. S. C. § 1486, judicial review of an order of nondisclosure under 49 U. S. C. § 1104 is available in the courts of appeals.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice White, Mr. Justice Douglas, Mr. Justice Blackmun,

license: Public Domain

text:
    UNITED STATES v. AMERICAN BUILDING MAINTENANCE INDUSTRIES
    No. 73-1689.
    Argued April 22, 1975 —
    Decided June 24, 1975

      Deputy Assistant Attorney General Wilson argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Kauper, William L. Patton, Carl D. Lawson, and Lee I. Weintraub.

      Marcus Mattson argued the cause for appellee. With him on the brief was Anthonie M. Voogd.

   Mr. Justice Stewart

delivered the opinion of the Court.

The Government commenced this civil antitrust action in the United States District Court for the Central District of California, contending that the appellee, American Building Maintenance Industries, had violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18, by acquiring the stock of J. E. Benton Management Corp., and by merging Benton Maintenance Co. into one of the appellee’s wholly owned subsidiaries. Following discovery proceedings and the submission of memoranda and affidavits by both parties, the District Court granted the appellee’s motion for summary judgment, holding that there had been no violation of § 7 of the Clayton Act. The Government brought an appeal to this Court, and we noted probable jurisdiction. 419 U. S. 1104.

I

The appellee, American Building Maintenance Industries, is one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States and Canada. It is also the single largest supplier of janitorial services in southern California (the area comprising Los Angeles, Orange, San Bernardino, Riverside, Santa Barbara, and Ventura Counties), providing approximately 10% of the sales of such services in that area.

Both of the acquired companies, J. E. Benton Management Corp. and Benton Maintenance Co., also supplied janitorial services in Southern California. Together their sales constituted approximately 7% of the total janitorial sales in that area. Although both Benton companies serviced customers engaged in interstate operations, all of their janitorial and maintenance contracts with those customers were performed entirely within California. Neither of the Benton companies advertised nationally, and their use of interstate communications facilities to conduct business was negligible.

The major expense of providing janitorial services is the cost of the labor necessary to perform the work. The Benton companies recruited the unskilled workers needed to supply janitorial services entirely from the local labor market in Southern California. The incidental equipment and supplies utilized in providing those janitorial services, except in concededly insignificant amounts, were purchased from local distributors.

It is unquestioned that the appellee, American Building Maintenance Industries, was and is actively engaged in interstate commerce. But oh the basis of the above facts the District Court concluded that at the time of the challenged acquisition and merger neither Benton Management Corp. nor Benton Maintenance Co. was “engaged in commerce” within the meaning of § 7 of the Clayton Act. Accordingly, the District Court held that there had been no violation of that law.

The Government’s appeal raises two questions: First, does the phrase “engaged in commerce” as used in § 7 of the Clayton Act encompass corporations engaged in intrastate activities that substantially affect interstate commerce? Second, if the language of § 7 requires proof of actual engagement in the flow of interstate commerce, were the Benton companies’ activities sufficient to satisfy that standard?

II

Section 7 of the Clayton Act, 15 U. S. C. § 18, provides in pertinent part:

“No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of .commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”

Under the explicit reach of § 7, therefore, not only must the acquiring corporation be “engaged in commerce,” but the corporation or corporations whose stock or assets are acquired must be “engaged also in commerce.”

The distinct “in commerce” language of § 7, the Court observed earlier this Term, “appears to denote only persons or activities within the flow of interstate commerce — the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer. If this is so, the jurisdictional requirements of [§ 7] cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce.” Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 195. But even more unambiguous support for this construction of the narrow “in commerce” language enacted by Congress in § 7 of the Clayton Act is to be found in an earlier decision of this Court, FTC v. Bunte Bros., 312 U. S. 349.

In Bunte Bros, the Court was required to determine the scope of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45, which authorized the Commission to proceed only against “unfair methods of competition in commerce.” The Court squarely held that the Commission's § 5 jurisdiction was limited to unfair methods of competition occurring in the flow of interstate commerce. The contention that “in commerce” should be read as if it meant “affecting interstate commerce” was emphatically rejected: “The construction of § 5 urged by the Commission would thus give a federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law. . . . An inroad upon local conditions and local standards of such far-reaching import as is involved here, ought to await a clearer mandate from Congress.” 312 U. S., at 354-355.

The phrase “in commerce” does not, of course, necessarily have a uniform meaning whenever used by Congress. See, e. g., Kirschbaum Co. v. Walling, 316 U. S. 517, 520-521. But the Bunte Bros, construction of § 5 of the Federal Trade Commission Act is particularly relevant to a proper interpretation of the “in commerce” language in § 7 of the Clayton Act since both sections were enacted by the 63d Congress, and both were designed to deal with closely related aspects of the same problem — the protection of free and fair competition in the Nation’s marketplaces. See FTC v. Raladam Co., 283 U. S. 643, 647-648.

The Government argues, however, that despite its basic identity to § 5 of the Federal Trade Commission Act, the phrase “engaged in commerce” in § 7 of the Clayton Act should be interpreted to mean engaged in any activity that is subject to the constitutional power of Congress over interstate commerce. The legislative history of the Clayton Act, the Government contends, demonstrates that the “in commerce” language of § 7 was intended to be coextensive with the reach of congressional power under the Commerce Clause. Moreover, the argument continues, § 7 was designed to supplement the Sherman Act and to arrest the creation of trusts or monopolies in their incipiency, United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 589, and it would be anomalous, in light of this history and purpose, to hold that the Clayton Act’s jurisdictional scope is more restricted than that of the Sherman Act.

It is certainly true that the Court has held that in the Sherman Act, “Congress wanted to go to the utmost extent of its Constitutional power in restraining trust and monopoly agreements United States v. SouthEastern Underwriters Assn., 322 U. S. 533, 558. Accordingly, the Sherman Act has been applied to local activities which, although not themselves within the flow of interstate commerce, substantially affect interstate commerce. See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219; United States v. Employing Plasterers Assn., 347 U. S. 186. But the Government’s argument that § 7 should likewise be read to reach intrastate corporations affecting interstate commerce is not persuasive.

Unlike § 7, with its precise “in commerce” language, § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, prohibits every contract, combination, or conspiracy “in restraint of trade or commerce among the several States . . . .” “The jurisdictional reach of § 1 thus is keyed directly to effects on interstate markets and the interstate flow of goods.” Gulf Oil Corp. v. Copp Paving Co., 419 U. S., at 194. No similar concern for the impact of intrastate conduct on interstate commerce is evident in § 7’s “engaged in commerce” requirements.

The Government’s contention that it would be anomalous for Congress to have strengthened the antitrust laws by curing perceived deficiencies in the Sherman Act and at the same time to have limited the jurisdictional scope of those remedial provisions founders also on the express language of § 7. Thus, although the Sherman Act proscribes every contract, combination, or conspiracy in restraint of trade or commerce, whether entered into by a natural person, partnership, corporation, or other form of business organization, § 7 of the Clayton Act is explicitly limited to corporate acquisitions. Yet it surely could not be seriously argued that this “anomaly” must be ignored, and § 7 extended to reach an allegedly anticompetitive acquisition of partnership assets. There is no more justification for concluding that the equally explicit “in commerce” limitation on § 7’s reach should be disregarded.

More importantly, whether or not Congress in enacting the Clayton Act in 1914 intended to exercise fully its power to regulate commerce, and whatever the understanding of the 63d Congress may have been as to the extent of its Commerce Clause power, the fact is that when § 7 was re-enacted in 1950, the phrase “engaged in commerce” had long since become a term of art, indicating a limited assertion of federal jurisdiction. In Schechter Corp. v. United States, 295 U. S. 495, for example, the Court had drawn a sharp distinction between activities in the flow of interstate commerce and intrastate activities that affect interstate commerce. Id., at 542-544. Similarly, the Court’s opinion in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, two years later, had emphasized that congressional authority to regulate commerce was not limited to activities actually “in commerce,” but extended as well to conduct that substantially affected interstate commerce. And the Bunte Bros, decision in 1941 had stressed the distinction between unfair methods of competition “in commerce” and those that “affected commerce,” in limiting the scope of the Commission’s authority under the “in commerce” language of § 5 of the Federal Trade Commission Act.

Congress, as well, in the years prior to 1950 had repeatedly acknowledged its recognition of the distinction between legislation limited to activities “in commerce,” and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce. Section 10 (a) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160 (a), for example, empowered the National Labor Relations Board to prevent any person from engaging in an unfair labor practice “affecting commerce.” Section 2 (7) of the Act, 49 Stat. 450, as amended, 29 U. S. C. § 152 (7), in turn, defined “affecting commerce” to mean “in commerce, or burdening or obstructing commerce or the free flow of commerce . . . .” Similarly, the Bituminous Coal Act of 1937, c. 127, 50 Stat. 72, providing for the fixing of prices for bituminous coal, the proscription of unfair trade practices, and the establishment of marketing procedures, applied to sales and transactions “in or directly affecting interstate commerce in bituminous coal.” 50 Stat. 76.

In marked contrast to the broad “affecting commerce” jurisdictional language utilized in those statutes, however, Congress retained the narrower “in commerce” formulation when it amended and re-enacted § 7 of the Clayton Act in 1950. The 1950 amendments were designed in large part to “plug the loophole” that existed in § 7 as initially enacted in 1914, by expanding its coverage to include acquisitions of assets, as well as acquisitions of stock. In addition, other language in § 7 was amended to make plain the full reach of the section’s prohibitions. See Brown Shoe Co. v. United States, 370 U. S. 294, 311-323. Yet, despite the sweeping changes made to effectuate those purposes, and despite decisions of this Court, such as Bunte Bros., that had limited the reach of the phrase “in commerce” in similar regulatory legislation, Congress preserved the requirement that both the acquiring and the acquired companies be “engaged in commerce.”

This congressional action cannot be disregarded, as the Government would have it, as simply a result of congressional inattention, for Congress was fully aware in enacting the 1950 amendments that both the original and the newly amended versions of § 7 were limited to corporations “engaged in commerce.” See, e. g., H. R. Rep. No. 1191, 81st Cong., 1st Sess., 5-6. Rather, the decision to re-enact § 7 with the same “in commerce” limitation can be rationally explained only in terms of a legislative intent, at least in 1950, not to apply the rather drastic prohibitions of § 7 of the Clayton Act to the full range of corporations potentially subject to the commerce power.

Finally, the Government’s contention that a limitation of the scope of § 7 to its plain meaning would undermine the section’s remedial purpose is belied by the past enforcement policy of the Federal Trade Commission and the Department of Justice — the two governmental agencies charged with enforcing the section’s prohibitions. Clayton Act §§ 11, 15, 15 U. S. C. §§21 (a), 25. The Federal Trade Commission has repeatedly held that § 7 applies only to an acquisition in which both the acquired and the acquiring companies are engaged directly in interstate commerce. E. g., Foremost Dairies, Inc., 60 F. T. C. 944, 1068-1069; Beatrice Foods Co., 67 F. T. C. 473, 730-731; Mississippi River Fuel Corp., 75 F. T. C. 813, 918. And while the Government explains that it has never taken a formal position that § 7 does not apply to intrastate firms affecting interstate commerce, it does concede that previous § 7 cases brought by the Department of Justice have invariably involved firms clearly engaged in the flow of interstate commerce. In light of this consistent enforcement practice, it is difficult to credit the argument that § 7’s remedial purpose would be frustrated by construing literally § 7’s twice-enacted “in commerce” requirement.

In sum, neither the legislative history nor the remedial purpose of § 7 of the Clayton Act, as amended and reenacted in 1950, supports an expansion of the scope of § 7 beyond that defined by its express language. Accordingly, we hold that the phrase “engaged in commerce” as used in § 7 of the Clayton Act means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power.

Ill

The Government alternatively argues that even if § 7 applies only to corporations engaged in the flow of interstate commerce, the Benton companies’ activities at the time of the acquisition and merger placed them in that flow. To support this contention the Government relies primarily on the fact that the Benton companies performed a substantial portion of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities. But simply supplying localized services to a corporation engaged in interstate commerce does not satisfy the “in commerce” requirement of § 7.

To be engaged “in commerce” within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce. See Gulf Oil Corp. v. Copp Paving Co., 419 U. S., at 195. At the time of the acquisition and merger, however, the Benton companies were completely insulated from any direct participation in interstate markets or the interstate flow of goods or services. The firms’ activities were limited to providing janitorial services within Southern California to corporations that made wholly independent pricing decisions concerning their own products. Consequently, whether or not their effect on interstate commerce was sufficiently substantial to come within the ambit of the constitutional power of Congress under the Commerce Clause, in providing janitorial services the Benton companies were not themselves “engaged in commerce” within the meaning of § 7. Cf. Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S., at 227-235.

Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large part outside of California, they did not purchase them directly from suppliers located in other States. Cf. Foremost Dairies, Inc., 60 F. T. C., at 1068-1069. Rather, those products were purchased in intrastate transactions from local distributors. Once again, therefore, the Benton companies were separated from direct participation in interstate commerce by the pricing and other marketing. decisions of independent intermediaries. By the time the Benton companies purchased their janitorial supplies, the flow of commerce had ceased. See Schechter Corp. v. United States, 295 U. S., at 542-543.

In short, since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not "engaged in commerce” within the meaning of § 7 of the Clayton Act. The District Court, therefore, properly concluded that the acquisition and merger in this case were not within the coverage of § 7 of the Clayton Act. The judgment of the District Court is affirmed.

It is so ordered.

Mr. Justice White,

concurring.

I concur in the judgment and in Parts I and II of the Court’s opinion. I do not join Part III, for I doubt that the interposition of a California wholesaler or distributor between the Benton companies and out-of-state manufacturers of janitorial supplies necessarily requires that the Benton companies be found not to be “in commerce” merely because they buy directly from out-of-state suppliers only a negligible amount of their supplies. For the purposes of § 7 of the Clayton Act, a remedial statute, the regular movement of goods from out-of-state manufacturer to local wholesaler and then to retailer or institutional consumer is at least arguably sufficient to place the latter in the stream of commerce, particularly where it appears that when the complaint was filed, cf. United States v. Penn-Olin Co., 378 U. S. 158, 168 (1964), the “local” distributor from which supplies were being purchased was a wholly owned subsidiary of the acquiring company, a national concern admittedly in commerce. In this case, however, the United States makes no such contention and appellee’s motion for summary judgment was not opposed by the Government on that theory. It is therefore inappropriate to address the issue at this time; and on this record, I concur in the judgment that the Benton companies were not in commerce.

Mr. Justice Douglas,

with whom Mr. Justice Brennan joins, dissenting.

For the reasons set forth in my dissenting opinion in Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 204-207 (1974), decided earlier this Term, I cannot agree that the “in commerce” language of § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18, was intended to give that statute a narrower jurisdictional reach than the “affecting commerce” standard which we have read into the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 et seq. On the record in this case, it is beyond question that the activities of the acquired firms have a substantial effect on interstate commerce. I would therefore reverse the summary judgment granted below and remand for further proceedings in the District Court.

Mr. Justice Blackmun,

dissenting.

I believe that the scope of the Clayton Act should be held to extend to acquisitions and sales having a substantial effect on interstate commerce. I therefore dissent. For me, the reach of § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18, is as broad as that of the Sherman Act, and should not be given the narrow construction we properly have given, just this Term, to the Iiobinson-Patman Act. Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 (1974).

For more than a quarter of a century the Court has held that the Sherman Act should be construed broadly to reach the full extent of the commerce power, and to proscribe those restraints that substantially affect interstate commerce. See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 234 (1948); United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 558 (1944). The Clayton Act was enacted to supplement the Sherman Act, and to “arrest in its incipiency” any restraint or substantial lessening of competition. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 589 (1957). To ascribe to Congress the intent to exercise less than its full commerce power in the Clayton Act, which has as its purpose the supplementation of the protections afforded by the Sherman Act, is both highly anomalous and, it seems to me, unwarranted. Section 7 should not be limited, as the Court limits it today, to corporations engaged in interstate commerce, but should be held to include those intrastate activities substantially affecting interstate commerce.

       The Government appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. §29. The Government’s notice of appeal was filed on February 7, 1974, before the effective date of the recent amendments to the Act. See Antitrust Procedures and Penalties Act, Pub. L. 93-528, § 7, 88 Stat. 1710.

       At the time of the acquisition and merger, Jess E. Benton, Jr., owned all the stock of J. E. Benton Management Corp., and 85% of the stock of Benton Maintenance Co. In addition to supplying janitorial services, Benton Management conducted some real estate business and provided building management services entirely within the Southern California area. Benton Maintenance was engaged exclusively in providing janitorial services. The Government has made no claim that the nonjanitorial activities of Benton Management Corp. have any bearing on the issues presented by this case.

       The District Court found that the Benton companies made only 10 out-of-state telephone calls related to business activities during the 18-month period prior to the challenged acquisition and merger. The charges for those calls were $19.78. During the same period the Benton companies sent or received only some 200 interstate letters, a number of which were either directed to or received from governmental agencies such as the Internal Revenue Service.

       Although many of the janitorial supplies were manufactured outside of California, the District Court found that Benton’s direct interstate purchases for the 16-month period prior to the challenged acquisition and merger amounted to a total of less than $140.

       “Commerce,” as defined by § 1 of the Clayton Act, 15 U. S. C. § 12, means “trade or commerce among the several States and with foreign nations The phrase “engaged in commerce” is not defined by the Act.

       Congress recently acted to provide such a “clearer mandate,” amending the Federal Trade Commission Act by replacing the phrase “in commerce” with “in or affecting commerce” in §§ 5, 6, and 12 of the Act. Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, § 201, 88 Stat. 2193, 15 U. S. C. § 45 (1970 ed., Supp. IY). The amendments were specifically designed to expand the Commission’s jurisdiction beyond the limits defined by Bunte Bros, and to make it coextensive with the constitutional power of Congress under the Commerce Clause. See H. R. Rep. No. 93-1107, pp. 29-31 (1974).

         The Federal Trade Commission has held that such acquisitions may be challenged under § 5 of the Federal Trade Commission Act, which forbids unfair methods of competition on the part of persons and partnerships, as well as corporations. Beatrice Foods Co., 67 F. T. C. 473, 724-727. It is, of course, well established that the Commission has broad power to apply § 5 to reach transactions which violate the standards of the Clayton Act, although technically not subject to the Act’s prohibitions. See, e. g., FTC v. Brown Shoe Co., 384 U. S. 316, 320-321; cf. FTC v. Sperry & Hutchinson Co., 405 U. S. 233. We have no occasion in the case now before us to decide whether application of § 5 to assets acquisitions by or from noncorporate business entities constitutes an appropriate exercise of that power; nor need we consider whether the acquisition of the stock or assets of an intrastate corporation that affected interstate commerce could be challenged by the Commission under the recent jurisdictional amendments to § 5. See n. 6, supra. See generally Oppenheim, Guides to Harmonizing Section 5 of the Federal Trade Commission Act with the Sherman and Clayton Acts, 59 Mich. L. Rev. 821; Reeves, Toward a Coherent Antitrust Policy: The Role of Section 5 of the Federal Trade Commission Act in Price Discrimination Regulation, 16 B. C. Ind. & Com. L. Rev. 151, 167-171.

       Despite this concession, the Government somewhat inconsistently argues that the present case does not in fact involve a substantial departure from the previous § 7 enforcement pattern. In the past, the Government asserts, the United States has challenged acquisitions of “essentially local businesses that affected interstate commerce.” United States v. Von’s Grocery Co., 384 U. S. 270, is cited as an example of such a challenge. But the District Court in that case expressly found that both of the merging grocery chains directly participated in the flow of interstate commerce because each purchased more than 51% of its supplies from outside of California. See 233 F. Supp. 976, 978. And in United States v. County National Bank, 339 F. Supp. 85, the only other case cited by the Government to support its contention that the case now before us does not involve a departure from previous enforcement policy, the sole question was quite different from that here in issue — whether the “Bennington area” was a “section of the country” within the meaning of § 7 of the Clayton Act.

       The Benton companies derived 80% to 90% of their revenues from performance of janitorial service contracts for the Los Angeles facilities of interstate and international corporations such as Mobil Oil Corp., Rockwell International Corp., Teledyne, Inc., and Pacific Telephone & Telegraph Co.

       The Government notes that this Court has held that maintenance workers servicing buildings in which goods are produced for interstate markets are covered by Fair Labor Standards Act provisions applicable to employees engaged in the production of goods for commerce. See, e. g., Kirschbaum Co. v. Walling, 316 U. S. 517; Martino v. Michigan Window Cleaning Co., 327 U. S. 173. In Kirschbaum the Court reasoned: “Without light and heat and power the tenants could not engage, as they do, in the production of goods for interstate commerce. The maintenance of a safe, habitable building is indispensable to that activity.” 316 U. S., at 524. Similarly, the Government argues, in the present case the Benton janitorial services were so essential to the interstate operations of their customers that they, too, should be considered part of the flow of commerce.
      The Fair Labor Standards Act, however, is not confined, as is § 7 of the Clayton Act, to activities that are actually “in commerce.” At the time of the decisions relied upon by the Government, the Act provided that “an employee shall be deemed to have been engaged in the production of goods [for interstate commerce] if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof ...” Fair Labor Standards Act of 1938, § 3 (j), 52 Stat. 1061,'as amended, 29 U. S. C. §203 (j) (1946 ed.) (emphasis added). Congress thus expressly intended to reach not only those employees who directly participated in the production of goods for interstate markets, but also those employees outside the flow of commerce but nonetheless necessary to it. Although Congress in 1950 could constitutionally have extended § 7 of the Clayton Act to reach comparable activity, it chose not to do so. See supra, at 279-281.

       The Government does not suggest that the purchase of janitorial equipment and supplies from local distributors placed the Benton companies in the flow of commerce, although it does argue that because of those purchases the firms had a substantial effect on interstate commerce — an issue not relevant in light of our construction of the reach of § 7 of the Clayton Act.

       The Government contends that the sale of janitorial services “necessarily” involves interstate communications, solicitations, and negotiations, and that such interstate activity should be viewed as part of the flow of interstate commerce. The merits of that argument need not be considered, however, since the record before the District Court does not support a finding that any of the Benton janitorial service contracts were obtained through interstate solicitation or negotiation.