appears to have been in part to lighten the labors of the courts, and in part to give the courts the benefit of the higher learning in economics, and superior wisdom in business affairs, which Congress appears to have expected that the members of the Commission either would possess when appointed, or would gradually acquire by experience in the course of the discharge of their official duties.160

§ 38. Foreign trade: In granting authority to the Commission to make reports and recommendations for legislation in respect of trade conditions in and with foreign countries where combinations or practices of manufacturers or traders, or other conditions, may affect the foreign trade of the United States, 161 Congress appears to have had in view the possible desirability of amending the antitrust laws so as clearly to exempt combinations of exporters of goods from the United States from the operation thereof.

As was pointed out during the debates in Congress162 upon the Trade Law, "cartels" or combinations of manufacturers and traders are expressly sanctioned by some foreign governments, and tolerated by others. That enables foreign competitors of United States producers and foreign purchasers of exports from the United States, to eliminate competition among themselves and act unitedly, and thereby seriously to affect, if not ab

16051 Cong. Rec. 12129 (bound vol. p. 11083), 12455 (bound vol. p. 11236). The District Court for the Western District of New York (Hazel J.) and the District Court for the Eastern District of Pennsylvania (Buffington, Hunt and McPherson, JJ.) have declined the request of the government that the Trade Commission be permitted to assist those courts in

framing decrees in favor of the government in cases arising under the antitrust laws. United States V. Eastman Kodak Co. (1915) 226 Fed. 62, 80-81; United States v. Reading Co. (1915) 226 Fed. 229, 285.

161 Trade Law, Sec. 6, (h).

16251 Cong. Rec. 9987 (bound vol. p. 8851), 12129-12130 (bound vol. pp. 11083-11084).

solutely to control, the foreign markets and foreign prices for American products. There has been a difference of opinion among Attorneys General as to whether or not the inhibition of the Sherman Law against contracts, combinations, and conspiracies in restraint of interstate and foreign trade and commerce, forbids exporters of commodities from the United States to combine and eliminate competition among themselves in order successfully to cope with the combination of foreigners. 163 That uncertainty has led American producers either to be reluctant to enter into foreign trade at all, or having entered to act independently as competitors, bidding against each other and cutting their prices in order to dispose of their products abroad. That has operated, as of course, much to the advantage of the for⚫eigners.

Those conditions in foreign trade Congress appears to have intended the Trade Commission should investigate fully and report upon, with recommendations for appropriate legislation to meet whatsoever evils may be found to exist.

§ 39. Additional legislation: The grant of authority to the Commission to make annual and special reports to Congress with recommendations for "additional legislation'',164 is probably to be understood as meaning additional legislation touching the same matters as those affected by the Trade Law and the antitrust laws. Those matters are, of course, most comprehensive. They would seem to include all activities in interstate and foreign commerce, except perhaps such activities of banks

16351 Cong. (bound vol. pp. 11083-11084). Semble, the Sherman Law does forbid combinations of exporters which have the effect of monopol

Rec. 12129-12130

izing or restricting foreign trade. United States v. U. S. Steel Corporation (1915) 223 Fed. 55, 97-114. 164Trade Law, Sec. 6, (f).

and interstate common carriers as lie clearly outside the field of the antitrust laws.

To illustrate, under its advisory power in respect of additional legislation, the Commission may perhaps be expected to recommend from time to time that certain unfair competitive trade practices, in addition to those now covered by the Clayton Law, be specifically described and forbidden by statute. Also, the Commission may perhaps make recommendations as to the much discussed advisability of Congress enacting a general incorporation law and requiring all corporations engaged in interstate or foreign commerce to operate under a federal charter.165 Again, there are numerous classes of persons desirous of being exempted from the operation of the inhibition found in the antitrust laws against combinations and conspiracies in restraint of trade. Labor unions and agricultural organizations have gained such exemption.166 Like exemption has been urged upon Congress as necessary for organizations of retailers, to enable them to maintain themselves in competition with chain stores and department stores; for specialty producing manufacturers, to enable them to make exclusive trade agreements so that consumers of their products in all sections of the country may be assured of equal treatment; for users of waterpower, to enable them to induce capitalists to make the investment necessary to the development and utilization of the waterpower of the country; and for producers of coal and lumber, to enable them to avoid competition, operate economically, and conserve the forests and coal deposits yet remaining.167 The Commission may perhaps be expected to make recommendations to Congress as to

16551 Cong. Rec. 9988 (bound vol.

p. 8851).

166 Clayton Law, Sec. 6.

16751 Cong. Rec. 9987 (bound vol. pp. 8850-8851).

whether or not those classes of persons, and others, should be granted the exemptions which they seek, and generally to study, and to report to Congress upon, the relative efficiency and desirability of big business and little business, of co-operation, combination, and competition, and other economic questions of like character.168

§ 40. Publicity: In providing that the Commission might publish its reports and decisions, and might report to the public from time to time such information obtained by it as it might deem expedient in the public interest, except trade secrets and the names of customers as to which it might obtain information in the discharge of its duties,169 Congress appears to have proceeded upon the view that the establishment of a governmental agency for publicity is an efficient method to check the growth of monopoly.170

16851 Cong. Rec. 9989 (bound vol. p. 8852).

169 Trade Law, Sec. 6, (f).

17051 Cong. Rec. 9608 (bound vol. p. 8843).

CHAPTER IV.

INVESTIGATIVE POWER.

§ 41. Scope of power: The investigative power of the Trade Commission is comprehensive.171 It is not, however, without limitations. Its exercise is limited to the ends for which it was granted.172 Also, the Trade Law provides several different methods whereby the Commission may investigate, and the persons whom the Commission's investigative power may affect, and the matters which it may touch, vary somewhat, depending upon the method of the exercise of the power.173 The power is further limited in its exercise by the inhibition of the Fourth Amendment against unreasonable searches and seizures, and by the provision of the Fifth Amendment that no person may be compelled to incriminate himself, or be deprived of liberty or property without due process of law.174

§ 42. As limited by purpose of grant: The Trade Commission's investigative power cannot reasonably be regarded as other than merely complementary of its other powers. There is nothing in the Trade Law to indicate that Congress intended that the Commission should make investigation an end in and of itself, or that it should investigate at all except in furtherance of the legitimate exercise of its regulative and advisory pow

ers.

Regulative and advisory powers175 were conferred

171Trade Law, Secs. 3, 6, 8 to 10; Sec. 6, supra; Sec. 48, infra. 172Sec. 42, infra.

173 Secs. 43 to 47, infra.

174 Secs. 48 to 51, infra.

175 Secs. 4 and 5, and Chapter II, and Chapter III, supra.