William J. Brennan, Jr.

“ Insofar as the Court of Appeals' holding implies that the proposition state by it is the common-law rule, the court was manifestly in error. The almost universally accepted common-law rule is the precise converse-that is, in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body. [6] Where the enabling statute is silent on the question, the body is justified in adhearing to that common-law rule.
Respondent does not undertake to support the Court of Appeals' proposition as stated. ”

“ The Federal Trade Commission Act does not specify the number of Commissioners who may constitute a quorum. [3] A quorum of three Commissioners is provided for by a rule of the Commission first promulgated in 1915; in its current version it is Rule 1.7. [4] No challenge to the authority of FTC to promulgate Rule 1.7 is made in this case; indeed, the Court of Appeals expressly disclaimed any '* * * doubt as to the validity of the Commission's practice of conducting hearings before less than the full membership,' 358 F.2d, at 230. ”

“ Clearly, it is not a decision covered by the 1961 Plan.
The inconsistency in congressional treatment of quorum voting sometimes allowing agency action on the concurrence of a majority of the quorum, in other cases requiring unanimous concurrence, and in several statutes saying nothing at all-refutes any suggestion that Congress has regarded the problem to be such as to justify a single rule for federal regulatory agencies. ”