of all protection of the statute as to any report or recommendation it might make without previous request therefor from the proper officer or body. Congress may have intended to accomplish just that. The same considerations which led Congress generally to exclude banks and interstate common carriers from the operation of the powers of the Commission, may have contributed to induce Congress to withhold discretion and initiative from the Commission in this particular instance when the exercise of its powers might touch such corporations. And so far as concerns the making of recommendations to enable a corporation to readjust its business so as to conform with the antitrust laws, a ruling that the Commission has any discretionary authority or power of initiative in connection with that matter would obviously create a possibility, if not a risk, of a conflict between the Attorney General and the Commission. Congress probably did not intend that.

$36. Enforcement of decrees: In conferring power upon the Commission to make reports and recommendations to the Attorney General in respect of the manner in which decrees obtained by the government restraining corporations from violating the antitrust laws are being carried out,150 the legislative purpose appears to have been twofold.

The Trade Law makes it the imperative duty of the Commisson to investigate and make such report and recommendation, upon the request of the Attorney General. One purpose of Congress appears, therefore, to have been that the Commission should, upon request of the Attorney General, assist him in ascertaining whether decrees enjoining violations of the antitrust laws are being complied with by corporations, and in securing their enforcement. But Congress appears to have intended 150Trade Law, Sec. 6, (c).

also, that if the Attorney General should be lax about securing compliance with any such decree, the Commission should correct that, not by interfering with the conduct of the Attorney General's office in seeking by direct action to obtain the enforcement of the decree, but by bringing the laxness of the Attorney General to public notice, and thereby affording the public an opportunity, if it should so desire, to apply in due course a political remedy. The intention of Congress thus to vest in the Commission an indirect coercive power over the Attorney General, appears from the fact that the Commission is expressly given not only power of initiative to make reports and recommendations to the Attorney General, in connection with the enforcement of decrees entered at the suit of the government to restrain violations of the antitrust laws, but also full discretionary power to make such reports and recommendations public.

The power of the Commission thus to make reports and recommendations does not extend to decrees against natural persons, but does extend in terms to a decree against "any defendant corporation" 151 That, of course, includes decrees against banks and interstate common carriers, as well as other corporations. The obvious difference in position between a bank or interstate common carrier against which a decree enjoining a violation of the antitrust laws has been entered, and a like corporation merely alleged to have been guilty of such violation, would seem to be sufficient to explain why Congress granted the Commission initiative and discretion in exercising its advisory power as to the one, and denied it, as was noted in the preceding section, as to the other. § 37. Drafting decrees: 152 By the terms of the Trade Law, the "form" of a decree for complainant is the matter in respect of which the Commission, as a master in 151 Trade Law, Sec. 6, (c). 152Trade Law, Sec. 7.

chancery, is to report to the court in suits in equity brought by the government under the antitrust laws. The "form" of decree in such suit, as in every other suit in equity in a federal court, is, however, prescribed by the equity rules.153 The Trade Law is therefore probably to be understood as authorizing the Commission to report to the court what substantial terms and provisions would be appropriate in such decree.

The Commission is not authorized to act upon its own initiative in reporting a decree to the court. The court must first refer the suit to the Commission for that purpose, and the law does not authorize a reference until after all testimony shall have been concluded, and the court shall have formed an opinion that the government is entitled to a decree.

The Commission, in ascertaining what would be an appropriate decree in any suit which may be referred to it, shall proceed upon such notice to the parties to the suit, and under such rules of procedure, as the court may prescribe. The provision for notice doubtless implies that the parties shall be granted a hearing before the Commission as to what decree the Commission should recommend to the court. It is not, however, to be understood that such hearing may be for the purpose of enabling the Commission to determine for whom, whether complainant or defendant, a decree should be rendered, or that the parties may offer additional evidence before the Commission at such hearing. That possibility is probably excluded by the "due process" clause of the Fifth Amendment, the Commission not being a court, 15+ and it is clearly excluded by the fact that, by the terms of the Trade Law, a reference of any suit to the Commission is not authorized until after the testimony there

153 Equity Rules of 1912, No. 71; 226 U. S. 669-670.

154 Sec. 30, supra.

in shall have been closed, and the court shall have concluded, upon that testimony, that the complainant is entitled to relief. What the Trade Law obviously contemplates is that, at the hearing before the Commission, the parties shall be heard in argument, upon the testimony taken prior to the reference, as to what, in view of such testimony, would be an appropriate decree for complain

ant.

After the Commission shall have reported to the court such decree for complainant as the Commission may consider would be appropriate, the parties may file exceptions to the Commission's report, and such proceedings may thereafter be had with reference thereto as with reference to the report of a master in chancery in any other suit in equity.155 The court is not, however, bound to accept the report of the Commission in whole or in part. The court may reject the Commission's report altogether, and enter such decree as in the judgment of the court may be appropriate.

The framing of a proper decree to dissolve a combination or consolidation effected in violation of the antitrust laws is a laborious matter of exceeding complexity and difficulty.156 The decrees entered in the Standard Oil Company Case157 and in the American Tobacco Company Case,158 respectively, have been criticized as not effectual to accomplish the purposes for which they were entered.159 In making it one of the duties of the Commission to act in an advisory capacity to the courts in framing decrees for the complainant in suits by the government under the antitrust laws, the legislative purpose

155 Equity Rules of 1912, No. 66; 226 U. S. 668.

156 United States v. American Tobacco Co. (1911) 191 Fed. 371.

157 Standard Oil Co. V. United States (1911) 221 U. S. 1.

158 United States v. American Tobacco Co. (1911) 221 U. S. 106.

15951 Cong. Rec. 9750 (bound vol. p. 8976); E. Dana Durand, in "The Trust Problem," 28 Quart. Journ. Econ., 406-408.

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.

162

As was pointed out during the debates in Congress1 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).