Abe Fortas

“ When a petition for review is filed, the court of appeals has 'plenary' jurisdiction, implemented by the self-contained all-writs provision; and when the record is filed, that jurisdiction is exclusive. Prior to the entry of the Commission's order, the courts of appeals simply have no jurisdiction, existing or potential. The general All Writs Act is limited to writs 'in aid of their respective jurisdictions.' It is not a charter to be used at the behest of an administrative agency in order to supply it with a weapon which Congress has withheld. ”

“ The Commission, prior to taking evidence and writing a report, is supposed to make only a very limited judgment: that there is 'reason to believe' the law is being violated. But to obtain a preliminary injunction, it must-without hearing the other side, and ordinarily merely on its staff's recommendation, necessarily based upon a quick exposure of the facts-file affidavits or produce evidence with the calculated purpose of demonstrating to the court of appeals that consummation of the merger will have such adverse effects that it must be halted in limine. ”

“ Unscrambling may be difficult; but Congress may well have been justified in the view that the extra effort is warranted in the interests of securing what it hoped would be careful administrative consideration of the merits of proposed mergers. Not every merger deserves sudden death. In many situations, mergers serve no purpose except the pursuit of bigness. ”

“ The powers of the Commission and the manner of their exercise and of review and enforcement of Commission orders are set out in meticulous detail. Whenever the Commission 'shall have reason to believe that any person is violating or has violated' § 7, it shall issue a complaint. The complaint is to be served upon 'such person and the Attorney General.' The Attorney General may intervene in the Commission's proceeding. He may institute actions in the district court for injunctive relief. ”

“ They are to the precise contrary. They demonstrate the obvious meaning of the language of the All Writs Act: that it is to be employed 'in aid of' appellate jurisdiction-not to vest general restraining power in the courts of appeals, but to authorize them to overcome action or inaction which would prevent the case from proceeding to judgment and then to appellate review in the ordinary course. Nothing of the sort nothing resembling it-appears in the present situation. The Commission may proceed with its hearings, as provided by statute. ”

“ In fact, and in all realism, it must take positions and establish, with sufficient positiveness to overcome strenuous opposition, that the merger will tend substantially to lessen competition or create danger of monopoly, that it is harmful to the economy, immediately threatening in its consequences, and that it is unlawful. There must be Commission conclusions, not merely the views of the staff. ”

“ Since 1956, the Federal Trade Commission has persistently requested the Congress to enact legislation giving the Commission itself the power to enjoin, or alternatively, to seek a district court order to enjoin mergers pending the outcome of the Commission's proceeidngs. Congress has just as persistently refused to do so. ”

“ Every conceivable merger case involves the danger that the merger, unless enjoined, will be effectuated, and the incentive to the Commission to shop among the statutorily available courts of appeals and to seek 'preliminary' injunctions will be great. ”

“ Kintner, The Federal Trade Commission in 1960 Apologia Pro Vita Nostra, 1961 Antitrust Law Symposium 21, 41.↑ For example, in some situations the merger of relatively small competitors may result in creation of an enterprise capable of meaningful competition with a company otherwise in unchallenged domination of an industry. ”

“ In all of these legislative proceedings, the position of the FTC has been steadfast: consistently, it has insisted that without new legislation it lacks authority to enjoin mergers pending completion of agency action. In March of 1957, FTC Chairman Gwynne informed the appropriate Committees of the decision in Federal Trade Comm'n v. International Paper Co., 241 F.2d 372 (C.A.2d Cir. 1956) , that the all-writs statute would not support an FTC application for preliminary relief. ”

“ See Duke, op. cit. supra, note 2.↑ The Court's opinion today eschews the result in Arrow Transportation and fastens instead on footnote 22, 372 U.S., at 671, 83 S.Ct., at 991, which merely reserves judgment as to 'decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels. ”

“ He noted that the FTC was pressing for legislative authorization, and that until the effort succeeded the FTC would be confined to intervention in occasional private suits and to reliance upon the Justice Department 'where a temporary restraining order is peculiarly appropriate.' Id. ”

“ F.T.C., 301 F.2d 585 (C.A.3d Cir. 1962) , where the FTC unsuccessfully sought an injunction pendente lite, more than seven years elapsed between complaint and enforcement. Pillsbury Mills, Inc. (FTC Docket No. 6000) was in the Commission for eight and one-half years; Crown Zellerbach Corp. v. F.T.C., 296 F.2d 800 (C.A.9th Cir. 1961) , for nearly four years, and it was another four years before the Commission's order was affirmed. These delays were not unknown to Congress. See Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 87th Cong., 1st Sess., ser. No. ”