application of the proposed uniform antitrust standard to agency actions affecting competition would cause a sizable increase in litigation, regardless of the outcome of agency rulings, further aggregating the delay and uncertainty which are such criticized features of the administrative process. 17/ The bill does not, however, create any new causes of action nor is it intended to bifurcate appellate review. Except where the Attorney General requested one of the specifically listed independent regulatory agencies to hold a hearing, the bill does not change administrative procedures, nor does it create standing for additional parties. We would not, therefore, anticipate any significant increase in litigation or administrative delay.

The bias in favor of competition created by S. 2625 would not, of course, go so far as to force an agency to abandon considerations not directly related to competition, such as the adequacy of health and safety standards. 18/ As a practical matter the application of S. 2625 would reduce the probability that agencies would adopt entry limits, set price floors, and approve collective ratemaking agreements among the regulated firms except in those rare instances in which reliance on more competitive approaches truly would frustrate essential statutory objectives. 19/ To the extent that the bill's standards and procedures limit agency discretion, such limitation is warranted by the past record of many regulators who failed to recognize the role of

competition in serving the public interest. The Commission recommends enactment of a strong, uniform antitrust standard for agency decisionmaking as an important step toward channeling agency discretion in a procompetitive direction. Some Members' Concern with the Bill

While a significant majority of the Commission favors a bill with the scope of S. 2625, as presently drafted, several members believe that environmental, health and safety regulation should be removed from the bill's ambit, arguing that the bill could unduly hinder implementation of such regulation. These members suggest that such an amendment could reduce compliance costs significantly without limiting the most important potential benefits of the bill. These members are concerned that the bill as presently drafted could be used as a delaying tactic by the subjects of such regulation, that it could be an obstacle to emergency regulation and expedited appellate review, and that the bill implies, because of the burden of proof that the bill establishes, that competitive concerns outweigh health and safety goals.

A majority of this Commission, however, is satisfied that the threshold test for applicability of the statute's requirements adequately defines the types of regulatory decisions to be covered. The bill's requirements come into play only after genuine and substantial competitive concerns are triggered.

Even if competitive concerns are raised, an

agency action to protect health and safety will be an overriding statutory purpose, and an agency will only be required to make a reasoned search for the least anticompetitive alternative available to accomplish such

purpose. Additionally, unnecessary delay can be prevented by creative use of informal and emergency procedures already established in administrative practice.

FOOTNOTES TO CHAPTER FIFTEEN

1/ Antitrust Commission Hearings 44-46 (July 26, 1978, morning session) (testimony of Joe Sims, Deputy Ass't Att'y Gen., Antitrust Div., Dep't of Justice).

2/ The Competition Improvements Act of 1975: Hearings on S. 2028 Before the Subcomm. on Antitrust and Monopoly of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 29 [hereinafter cited as S. 2028 Hearings] (prepared statement of Thomas E. Kauper).

3/

See Antitrust Commission Hearings 81 (July 26, 1978, afternoon session) (testimony of Terrence R. Murphy, member, Task Force Panel on Antitrust Immunities, Antitrust Section, American Bar Ass'n).

4/ See Chapter Nine supra.

5/ S. 2625 is an amended version of S. 2028, the Competition Improvements Act of 1976. S. 2028 was originally introduced in 1975 by Senators Kennedy and Hart. The bill was referred to the Antitrust and Monopoly Subcommittee and was favorably reported by both the Subcommittee and the full Senate Judiciary Committee in significantly amended form. See Senate Comm. on the Judiciary, Competition Improvements Act of 1976, S. Rep. No. 1045, 94th Cong., 2d Sess. 31 (1976) (hereinafter cited as Committee Report]. The bill was reintroduced in its amended form as S. 2625 by Senator Kennedy on March 1, 1978. S. 2625, 95th Cong., 2d Sess., 124 Cong. Rec. S2663 (1978).

6/ Committee Report, supra note 5, at 1-4.

7/ S. 2625, 95th Cong., 2d Sess. § 3(a), 124 Cong. Rec. S2664, (1978).

8/ The language in subsection (2) above differs slightly from the wording of the Commission's recommendation set out at the beginning of this Chapter. The bill as presently drafted requires "significant and demonstrable benefits" outweighing anticompetitive effects. We believe that the language "significant and reasonably certain" benefits in this subsection would be more clear and is consistent with the principles of the bill.

9/ See Committee Report, supra note 5, at 21-23.

10/ 390 U.S. 238, 243-46 (1968). See H. Cohen, The Extent to Which Federal Agencies Must Consider Antitrust Policies: An Analysis of the Potential Impact of S. 2028 (Jan. 22, 1976) (report prepared by Congressional Research Service for Sen. Philip A. Hart), reprinted in S. 2028 Hearings, supra note 2, at 364.

11/ Section 8(c) of the bill defines "independent regulatory agency" as the Interstate Commerce Commission, the Federal Power Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Federal Maritime Commission, the Securities and Exchange Commission, and the Nuclear Regulatory Commission. See note 5 supra.

12/ Antitrust Commission Hearings 65 (July 26, 1978, afternoon session) (testimony of David Boies, Chief Counsel and Staff Dir., Subcomm. on Antitrust and Monopoly, Sen. Judiciary Comm.).

13/ See, e.g., Gulf States Utilities Co. v. Federal Power Comm'n, 411 U.S. 747, 756-62 (1973); Federal Maritime Comm'n v. Akteibolaget Svenska Amerika Linien, 390 U.S. 238, 243-46 (1968); United States v. Federal Communications Comm'n,

F.2d

(D.C. Cir. 1978).

14/ Committee Report, supra note 5, at 21-23.

15/ Antitrust Commission Hearings 66 (July 26, 1978, afternoon session) (testimony of David Boies).

16/ Id. at 85-87. See also id. at 92 (testimony of Edmund

E. Harvey, member, Task Force Panel on Antitrust Immunities, Antitrust Section, American Bar Ass'n) (agreeing that proposal to have agencies consider competition where appropriate is unlikely to have much effect). This approach could be supplemented with an Executive Order mandating additional consideration of competitive concerns. Cf. Exec. Order No. 12044, 43 Fed. Reg. 12,661 (1978) (Improving Government Regulations).

17/ See, e.g., Antitrust Commission Hearings 69-70 (July 26, 1978, afternoon session) (testimony of Victor E. Ferrall, Jr., member, Task Force Panel on Antitrust Immunities, Antitrust Section, American Bar Ass'n); id. at 72-73, 88 (testimony of Edmund E. Harvey).

18/ Prepared statement of David Boies, Chief Counsel and Staff Dir., Subcomm. on Antitrust and Monopoly, Senate Judiciary Comm., to the Antitrust Commission 4 (July 26, 1978).

19/ Antitrust Commission Hearings 103-04 (July 26, 1978, afternoon session) (testimony of David Boies).