I am a member of the bars of Michigan and the District of Columbia, and a member of the New York State Bar Association.

In 1934, I was a special legal consultant to the National Recovery Administration.

From 1938 to 1940, I served as chairman of the Advisory Council of the Marketing Laws Survey, a Federal Government research project for the compilation, review and analysis of all State laws in the field of trade regulation.

From time to time, I act as legal consultant to lawyers in private practice or to business concerns. My writings in the field of trade regulation include several casebooks and various articles.

As former cochairman, I should make it clear that while my comments on the committee's composition, work and procedures will be addressed to the functions and experience of the cochairmen's office, I do not claim to be the single interpreter for the whole committee of the words of the report. To the extent that I paraphrase those words or attempt to explain their tenor, I respectfully ask that you consider such comments as representing my personal observations. I invite your attention to the caveat in italics at the top of page 5 of the report:

Any important differences in analysis or policy are reflected in dissent. Apart from such registered divergence, the committee is in substantial agreement on the report's basic analysis and conclusions. In any document treating so comprehensively a subject so complex, however, no one member can be held responsible for each phrasing of each case of shade of reasoning.

The CHAIRMAN. Professor Oppenheim, I want to interrupt at that point.

Mr. OPPENHEIM. Yes, sir.

The CHAIRMAN. I know you did a tremendous amount of work as cochairman of that committee, and it was work that was backbreaking, if I may put it that way, and very difficult, but you will understand that a report of that sort is bound to create considerable criticism. We are going to be critical, too. There is nothing personal in our criticisms. We do try to criticize for the purpose of being constructive and to secure information needed by our committee For example, you speak of policy as reflected in dissent.

Now, I try to read your report, and I do not find any dissenting opinions set forth separately from the majority opinions. Why did you take that course?

Mr. OPPENHEIM. Well, I think as a matter of organization and form of the report that it is reasonable to ask why we did not put the dissents in perhaps boldface type, or in the hornbook black letter form. We considered that and we felt that it was necessary to read the whole context. We felt if we attempted sharply to separate the dissenting statements by, let us say, putting them in boldface type, there might be a tendency to read those without reference to th whole context. It is a sort of temptation, I suppose, many might have.

The CHAIRMAN. You are a lawyer, are you not?
Mr. OPPENHEIM. Yes, sir.

The CHAIRMAN. And I might add, a good lawyer.

Mr. OPPENHEIM. I would hope you would have that opinion of me. The CHAIRMAN. Suppose the Supreme Court in its decision would weave a dissent in the majority opinions, what would you say then?

63478-55-pt. 3– -3

Mr. OPPENHEIM. I do not think the analogy, Mr. Chairman, goes the full length, because here we have a complexity of issues on various topics throughout the report and we are not dealing at all times with any particular issue or issues. In a Supreme Court opinion, the issues are pretty narrow and I suppose in that kind of Court practice, a dissenting opinion appears separately.

But here, throughout the report, we have so many specific dissenting statements on specific points, that unless we correlated the dissent on that point with the very point in the text, it would have been difficult for any reader to follow the reasoning of the majority and easily see what the refutation was in the dissent. That is the reason it was correlated that way.

The CHAIRMAN. I must indicate emphatic dissent from that point of view. I try to read some of these minority opinions and I find it extremely difficult to wade through the whole report to be able to find them.

As I understand, Professor Schwartz of the University of Pennsyvania felt his dissent, upon which he spent many, many hours was, as he puts it, "dismembered, condensed, and distributed through 350 pages of the majority report." He saw fit to publish a dissent at his own expense. He asked that he be permitted to file his dissent in your report in its entirety, and that request was denied.

Professor Rostow wrote to Herbert Brownell, the distinguished Attorney General of the United States, March 23, 1955, and he says as follows:

I must vehemently protest recent attempts of Judge Barnes and Professor Oppenheim to interfere with the right of members of the Attorney General's Antitrust Committee to express dissent in their own language and form. I regard this policy as not only unprecedented in the procedure of public bodies, and unwise in itself, but a breach of faith so far as the committee is concerned. Much has been accomplished by the committee, both negatively and positively. That accomplishment will not be lost if criticisms of the report for failing to go further are suppressed, weakened, diluted, or denied their full impact. On the contrary, such a policy risks the loss of what has been gained through petty and futile bickering.

That is the communication that Mr. Rostow wrote to Mr. Brownell. And then there are additional communications sent to Mr. Barnes, Judge Barnes, and also to yourself, concerning the matter.

I will not read it all, but it was of the same import. These letters will be included in the report at this point.

(The letters referred to follow.)

DISSENTING OPINION OF EUGENE V. ROSTOW

Certain parts of this copy of the dissenting opinion by Eugene V. Rostow, submitted to the Attorney General's National Committee, were quoted in the committee's report, and specifically attributed to Mr. Rostow. The parts thus included in the report are set off in brackets. The page number of the report where the bracketed material may be found is in parenthesis.

In addition, there are attached to this copy of Mr. Rostow's dissent copies of certain communications between the committee members and the Department of Justice relative to the issue on dissents.

(To be printed at the end of the report, as part of its text, and under the heading below.)

(P. 388:) [Concluding Statement of Partial Dissent by Eugene V. Rostow : [While I agree with the analysis of most of the Report, except as to points of detail at which I have felt it necessary to record dissent, in footnotes or brief comments in the body of the text, there are two major respects in which the Report fails in my view to meet the duties imposed upon our Committee by our terms of reference.

[The President said of our Committee that it should "provide an important instrument to prepare the way for modernizing and strengthening our laws to preserve American free enterprise against monopoly and unfair competition." In establishing the Committee, the Attorney General asked us "to evaluate the antitrust laws in their fundamental aspects," in relation to the competitive process antitrust is designed to maintain.

[Our Report is largely a review and restatement of the substantive doctrines of antitrust law, together with an analysis of the procedures through which the laws are enforced. For all the divergence of view which has naturally emerged with respect to specific aspects of the law-notably the Miller-Tydings and McGuire Acts, certain phases of the Robinson-Patman Act, and the interpretation of parts of the Clayton Act-the principal theme of the Report, on which we are unanimous, is that Congress and the Courts have developed a reasonably unified and consistent corpus of antitrust law, directed at protecting the economy against substantial and significant limitations on competitive conditions. The several antitrust statutes, as we present them here, differ principally in the amount of restraint they proscribe. Section 2 of the Sherman Act requires "dominance" in a market by a single firm, or a group acting in concert; Section 1 of the Sherman Act deals with contracts, combinations or conspiracies accomplishing substantial restraints, which may result in positions of advantage less than those of market "dominance;"1 and the Clayton Act applies to certain arrangements which probably will result in a substantial lessening of completition in a defined market. Orienting the law around this central axis-the concept of limitations on competition in defined markets-we conclude that by and large our antitrust law is adequate to its task.

[While I welcome and agree with the general tenor of this analysis, I deplore the failure of the Committee to have carried it forward in certain respects, in order to provide clear-cut answers as to ways in which the antitrust law needs modernizing and strengthening, in order to deal appropriately with several pressing problems of monopoly and restraint of trade now largely beyond the reach of the law, or largely neglected in its enforcement.]

1. An International Agreement to protect the American Economy Against Exploitation by International Cartels

(Pp. 99 to 105:) [The Committee, by a narrowly divided vote, refused to comment on the possibility of action by means of international agreement to protect the American economy against exploitation by foreign cartels. Our deliberate silence on this question constitutes the most serious single defect in our Report. For a strong lead now, I am convinced, could overcome the carefully concertedand thus far effective plan to smother even the thought of international action against international cartels.

[The reason why our silence at this time is so eloquent is celar in the history of the international cartel problem.

[The international problem is one of the most thoroughly studied issues in public life. Years of effort by committees, governments, foundations, and individual scholars have fully documented the significant role of cartels in the world economy. The importance of foreign cartels to our own economy has long been generally understood. The problem was perhaps most vividly dramatized in public thought by the Senate investigations, before World War II, of the business connections between American and German firms, and by our earlier experiences as purchasers of quinine, rubber, diamonds, and certain other products produced and sold under cartel conditions.

As well as with practices which may be condemned as anticompetitive in character, whatever their demonstrated market effect.

In addition, the Robinson-Patman Act has a further, cognate standard directed against acts within its scope which may "injure, destroy, or present competition with any person" who grants or knowingly receives the benefit of a prohibited discrimination in price. or with customers of either of them.

[Foreign monopolies, cartels, and restrictive arrangements of comparable effect are costly burdens upon the American economy. They affect certain prices within the United States, either directly or by influencing imports into this country; and they influence, and often control, American export and investment opportunities in other countries. Some plans even limit the capacity of American firms or subsidiaries of foreign firms doing business in the United States to use certain manufacturing processes in this country. While no estimates are available as to the proportion of world trade affected by cartels, there can be no doubt that they constitute a quantitatively significant influence on both actual and potential movements of goods, services, and capital in the economy of the free world. In the last 30 years, governmental reports alone have reviewed cartel plans with respect to more than 120 commodities or services of significance in world trade, including aluminum, diamonds, wood pulp, nickel, copper, rubber, various chemical and electrical products, dyes, cocoa, shipping, magnesium, and machinery of many types. In addition to purely private monopolies and cartels, the laws of other countries have in many instances given direct and indirect support to arrangements of like effect, both through the complete or partial nationalization of industries, and through legal or administrative approval of arrangements which would, in this country, fall squarely within the condemnation of the Sherman Act.

[The difference between American and foreign law with respect to monopolies and restraints of trade is great, and constitutes the essence of the cartel problem as an issue of international law, and of the conflict of laws. Building on common law ideas, our Sherman Act and its development, as sketched out in this report, has been a pioneering achievement. Other countries are now moving in various ways to follow our lead, as they have gradually realized the contribution the antitrust laws have made both to American productivity, and to our flexible social system, with its wide sharing of power and of opportunity. Statutory changes in the regulation of monopolies and restrictive business practices have been made in several European countries since the war, and others are now pending before their parliaments.

[We cannot, however, depend on the gradual evolution of foreign law to protect the American economy against international cartels. Most foreign laws on the subject are local in scope, and are all far weaker than the Sherman Act. In any event, it would be remarkable if other governments proceeded against the cartels of greatest interest to us. All governments (including our own) look askance at foreign monopolists who charge their citizens high prices, but almost invariably tend to support restrictive arrangements which premit their own citizens to raise the prices at which they sell to foreigners. Even the Sherman Act, enforced in accordance with the principle of United States v. Aluminum Co. of America (148 F. 2d 416 (2d Cir., 1945)), which is strongly and properly approved in Chapter 2 of our Report, cannot reach most of the foreign restraints of trade affecting the American economy. Occasionally our Courts can take effective jurisdiction over the program of a foreign cartel, and they can often weaken such cartels by forbidding American nationals and corporations to participate in them. But at best the Sherman Act can do a limited part of the job, and its enforcement with regard to nonresidents, foreign corporations, or even foreign subsidiaries of American corporations is bound to creat serious problems of international law and significant political friction. Such friction must Continue to arise so long as foreign law wtih respect to restraints of trade and onopoly differs so markedly from our own.

[Given this state of the facts, it has long been obvious that the United States uld choose among three courses of action: (1) to accept the intevitability foreign cartels, and to allow American companies operating abroad to particite in them; this course would require amendment of the antitrust laws, which i am glad to say no member of the Committee has directly proposed; (2) to continue our present course of partial, inadequate, and generally unsatisfactory forcement of our law against those offenders whom we happen to catch-a curse which is worth continuing, in the absence of a more comprehensive proach, but which at best can reach a small fraction of the important situations, and inevitably produces undesirable and unnecessary intergovernmental friction; or (3) to move, with other governments, by means of procedures of international cooperation, towards an agreed solution of the problems which restrictive arrangements pose for the American economy.

[The government of the United States labored long and hard, in the years before 1953, to achieve an international agreement which could establish a system of international cooperation for curbing world cartels, while vigorously

enforcing the Sherman Act against such bodies within the constitutional limits of our jurisdiction. The government sought in many conferences to work out with other interested governments an agreed basis for cooperative action in this sphere. The International Trade Organization Charter of Havana, of 1946, contained an important chapter on Restrictive Business Practices, which had wide support in American public opinion. With the failure of the Havana Charter, for other reasons, the government made earnest attempts through several international bodies to revive the idea of a treaty against cartels. Finally, by Resolution of the Economic and Social Council of the United Nations, an international committee was appointed to study the problem and to make recommendations for action. That committee, after full Reports, has proposed Draft Articles of Agreement through which machinery of international cooperation could be established for dealing directly with restrictive business practices. These Draft Articles are largely based on the corresponding substantive provisions of the Havana Charter. By resolution of the Economic and Social Council, they are now before all member governments of the United Nations for study and comment.

[The present Administration has not so far publicly stated its response to the United Nations Draft, or its general position on seeking to deal with the cartel problem by measures of international cooperation. Those who oppose international action against cartels have petitioned us, as is their right, with documents putting forward numerous arguments, not all consistent with each other, to the effect that we should ignore the problem, as the Randall Commission did, or oppose the United Nations Draft. No one of our petitions had the temerity, or the candor, to defend cartels as such. We were told that while cartels were no doubt a costly burden to the American people, this was a thorny problem requiring further study--the traditional gambit of an opposition without a case, hardly convincing with respect to a subject, like international cartels, which has been faithfully examined in a vast mound of books, reports, government documents, and learned articles. We were also advised that the United Nations Draft Articles of Agreement would establish a supranational kangaroo court, through which foreign judges could condemn Americans; and equally earnestly, that the weakness of the Draft Articles was their reliance on international agreement and their failure to provide truly judicial procedures based on supranational authority. Other arguments were put before us, but none, in my view, really faced the substantive issues.

[The issue before the Committee for vote was whether we should recommend that the government support, negotiate and sign, and the Congress by appropriate procedures ratify, an international treaty or convention against restraints of trade and monopolies of international concern, in view of the fact that the enforcement of the Sherman Act can at best deal with few of the restraints which foreign cartels impose upon the American economy. Thus the United Nations Draft Articles, as such, were never submitted for a vote to our Committee nor were they considered in detail by it.

[In view of the course of our debate, however, and the considerations which therefore may have affected the Committee's vote, I deem it necessary to comment on several of the misconceptions about the Draft Articles which entered into the discussion.

[The proposal before the United Nations and its members for action (Unite Nations, Economic and Social Council, Report on Restrictive Business Pram tices, Official Records, 16th Sess., Supp. No. 11, 1953) would establish a standar to which signatory governments would be obliged to conform, Enforcemen however, is left to each government, according to its own system of law. Sinca the standard of the Draft Articles is far less severe than the Sherman Act, representing an agreed compromise between American and European views on these matters, the Draft Articles could require no change in our law nor could they alter in any way the jurisdiction of our courts.

[(a) The Agreement would require signatory government to take appropriate measures in accordance with their own domestic law and to cooperate with other nations and with the Organization to be established under the Agreement, "to prevent, on the part of private or public commercial enterprise, business practices affecting international trade which restrain competition, limit access to markets, or foster monopolistic control, whenever such practices have harmful effects on the expansion of production or trade," in the light of the general objectives of the Agreement (Art. I (1)). The Agreement lists as illustrative restrictive business practices: price fixing, exclusion from markets or dividing markets, discrimination, limitations of production,