The Honorable Edward M. Kennedy
Chairman, Committee on the Judiciary

United States Senate

Washington, DC 20510

Dear Mr. Chairman:

The Commission appreciates the opportunity to offer further comment on S. 382, the "Competition Improvements Act of 1979." The Commission has no objection to S. 382 in its current form.

Sincerely,

Shellhardine

Joseph M. Hendrie

The Commission is pleased to comment on the revised
version of S. 382, the Competition Improvements Act of 1979.
As you know, the Commission has commented twice previously
on earlier drafts of this legislation, in letters to you
dated March 15, 1979, and July 11, 1978. In addition, for-
mer Commission Chairman Roderick M. Hills testified on
S. 2028, the Competition Improvements Act of 1975, before
the Subcommittee on Antitrust and Monopoly on February 5,
1976. In each of these instances, the Commission has

the competition improvements" bills as drafted.

: MAY 30

As you know, the Commission has long supported the
policy of encouraging competition in the securities mar-
kets and believes that, in making regulatory decisions,
it should weigh carefully any burdens on competition that
its regulation would impose. Nevertheless, we believe
that while the proposed standard in S. 382, as revised,
is an improvement over the prior versions of the bill,
it still would not be the appropriate standard to be
applied to the Commission's regulatory decision-making.

(a) regulates or licenses entry under a scheme
in which the level of entry is subject to
limitation;

S. 382, Section 3(a).

S. 382 would establish a special requirement for cer-
tain kinds of agency action that may affect competition.
It would prohibit a federal agency from taking any such
action unless the agency had considered the competitive
effects of such action and concluded that such action is
the least competitive alternative legally and practicably
available to achieve statutory goals.: 1/ An agency's
action would be subject to that requirement if it:

opposed

(b) sets or reviews with authority to accept,
reject, or modify the monetary price charge
for goods or services;

(c) sets, limits, or allocates the production
or distribution of goods or services; or

(d) reviews, approves, rejects, or regulates

the terms and conditions of agreements

among providers or purchasers of goods or
services.

It appears that a large proportion of the Commission's actions under the various statutes it administers would not be subject to that requirement. As a general matter, the Commission is not usually called upon to allocate valuable franchises between or among competing applicants, nor does the Commission fix the prices at which most securitiesrelated services are offered or, in most cases, establish limitations on the number of market participants that are allowed to compete. Nevertheless, the Commission is required, particularly in under the Securities Exchange Act of 1934 (the "Securities Exchange Act"), to take action that could fall within the categories enumerated in S. 382, as revised. It is in view of those statutory mandates that the Commission believes the proposed requirement would be inappropriate.

The Securities Exchange Act directs the Commission to regulate a large number of competing entities and to use its authority to facilitate the establishment of both a national market system and a nationwide system for the clearance and settlement of securities transactions. 2/ In carrying out those responsibilities, and in certain other contexts under the Securities Exchange Act, the Commission is frequently called upon to

Queral other ebe

balance the need for objectives, competition against several other

Statutory objectives, such the establishment of efficient of

components

as

2/ Sections 11A and 17A of the Securities Exchange Act.

a

and

national market system or a national clearance
national market ope
abiona
emand get
brement system. In some cases, greater efficiency of op-
eration, needed methods of protecting investors and safe-

competition.

guarding funds and securities may, in the Commission's justify action judgment, jtify watcion televendemmiandurida Dempeertien. In- that inhibits deed, while the maintenance of a fair field of competition is generally an important goal under the Securities Exchange Act, the Commission must also consider the other goals articulated by Congress. In balancing these various public policy objectives, the Commission must give due deference to the need for competition. At the same time, it should neither overestimate nor underestimate the relative importance of competitive objectives as compared to the other statutory purposes.

Settlement system.

-

gress

The Congress recently considered the role the Commission should play in assessing burdens on competition. When it enacted the Securities Acts Amendments of 1975, the Con-, ejected a proposed by the Department of Justice a formula similar to that contained in S. 382, as revised and gave greater latitude, and more responsibility, to the Commission in determining whether burdens on competition should be tolerated. The Department of Justice had argued that the Commission should be required, in issuing rules and orders, to adopt the least anticompetitive means available to achieve the other statutory goals. 3/ In rejecting that approach, the Congress instead directed the Commission (1) to evaluate competitive burdens imposed by its own rules, as well as by rules of the stock exchanges and the other self-regulatory organizations, and (2) allow such bardeneimposed

to allow such buidens to be imposed

statutory for mula

3/ Attachment A to Statement of Donald J. Baker, Deputy
Assistant Attorney General, Antitrust Division, Depart-
ment of Justice (Feb. 19, 1975), reprinted in Securities
Acts Amendments of 1975, Hearings on S. 249 Before the
Subcomm. on Securities of the Senate Comm. on Banking,
Housing and Urban Affairs, 94th Cong., 1st Sess. 257
(1975).

A second inappropriate feature of S. 382 is the requirement that federal agencies establish special procedures for

providing notice

per Cre

dy. 5/ That requirement is unnecessarily duplicative of existing notice requirements under

to the Justice Department

the Administrative Procedure Act. We do not believe it is concerning

actions to which the

bill would apply.

necessary for the Justice Department to be given more extensive notice than is provided to members of the public who are directly affected by the agency's action.

Finally, we note that, in certain other respects, S. 382 remains unchanged from its prior versions. The Commission continues to object, for the reasons stated in our previous comments, to the provisions that give the Department of Justice and the Federal Trade Commission the ability to intervene as a party of right" in Commission proceedings involving competition related issues, and that would, in effect, give the Justice Department and the FTC broad discovery rights not afforded other participants in such agency proceedings.

We appreciate this opportunity to comment on the revised version of S. 382. The views expressed here are those of the Commission, and do not necessarily represent the views of the Administration. A copy of this letter is being submitted simultaneously to the Office of Management and Budget, and we will inform you of any further advice received from that Office concerning the views of the Administration.