Appeal of FTC Line of Business Report Litigation, s. 77-1728

• Decision Date: 06 November 1978
• Docket Number: 77-1944,77-1931,77-1732,77-1947,77-1930,Nos. 77-1728,77-1943 and 77-1952,77-1956,77-1953,77-1942,s. 77-1728
• Citation: 595 F.2d 685,193 U.S.App.D.C. 300
• Parties: , 1978-2 Trade Cases 62,152 Appeal of FTC LINE OF BUSINESS REPORT LITIGATION. Appeal of FTC LINE OF BUSINESS REPORT LITIGATION AMERICAN CYANAMID COMPANY et al. DEERING MILLIKEN, INC., Appellant, v. FEDERAL TRADE COMMISSION et al. (three cases). Appeal of FTC LINE OF BUSINESS REPORT LITIGATION NL INDUSTRIES, INC. Appeal of FTC LINE OF BUSINESS REPORT LITIGATION FEDERAL TRADE COMMISSION PARTIES. Appeal of FTC LINE OF BUSINESS REPORT LITIGATION CYCLOPS CORPORATION. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION AMERICAN CYANAMID COMPANY et al. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION FEDERAL TRADE COMMISSION PARTIES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 685

595 F.2d 685

193 U.S.App.D.C. 300, 1978-2 Trade Cases 62,152

Appeal of FTC LINE OF BUSINESS REPORT LITIGATION Appeal of FTC LINE OF BUSINESS REPORT LITIGATION AMERICAN CYANAMID COMPANY et al. DEERING MILLIKEN, INC., Appellant, v. FEDERAL TRADE COMMISSION et al. (three cases) Appeal of FTC LINE OF BUSINESS REPORT LITIGATION NL INDUSTRIES, INC Appeal of FTC LINE OF BUSINESS REPORT LITIGATION FEDERAL TRADE COMMISSION PARTIES Appeal of FTC LINE OF BUSINESS REPORT LITIGATION CYCLOPS CORPORATION. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION AMERICAN CYANAMID COMPANY et al. Appeal of FTC CORPORATE PATTERNS REPORT LITIGATION FEDERAL TRADE COMMISSION PARTIES.

Nos. 77-1728, 77-1931, 77-1942, 77-1944, 77-1947, 77-1953,

77-1956, 77-1732, 77-1930, 77-1943 and 77-1952.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 16, 1977.

Decided July 10, 1978.

As Amended July 20, 1978.

Certiorari Denied Nov. 6, 1978. See 99 S.Ct. 362.

J. Randolph Wilson, Washington, D. C., with whom John S. Koch and Steven S. Rosenthal, Washington, D. C., were on the brief, for appellants Air Products and Chemicals, Inc., et al., in Nos. 77-1728 and 77-1732.

Lee A. Rau, Washington, D. C., with whom Edward T. Tait, John M. Wood and Stuart M. Gerson, Washington, D. C., were on the brief, for appellants American Air Filter Co., Inc., et al., in Nos. 77-1728 and 77-1732.

Mark A. Jacoby, New York City, with whom Ira M. Millstein and Salem M. Katsh, New York City, were on the brief, for appellants Aluminum Co. of America, et al., in Nos. 77-1728 and 77-1732.

John C. Reitz, Washington, D. C., was on the brief, for appellants American Greetings Corp., et al., in Nos. 77-1728 and 77-1732.

James R. Henderson, Washington, D. C., was on the brief, for appellants, Inland Steel Co., et al., in Nos. 77-1728 and 77-1732.

John F. Graybeal and Robert C. Houser, Jr., Washington, D. C., were on the brief, for appellant Square D Co., in Nos. 77-1728 and 77-1732.

Andrew S. Krulwich, Washington, D. C., was on the brief for appellant Hoffman LaRoche, in No. 77-1732, and for appellant Lone Star Industries, Inc., in No. 77-1728.

Philip J. Davis, Washington, D. C., was on the brief, for appellant Chemetron Corp., in Nos. 77-1728 and 77-1732.

James F. Rill, Washington, D. C., was on the brief, for appellant Carpenter Technology Corp., et al., in No. 77-1732, and for appellant A. E. Staley Manufacturing Co. in No. 77-1728.

James F. Bromley, Washington, D. C., was on the brief, for appellant United States Gypsum Co. in Nos. 77-1728 and 77-1732.

Ronald P. Wertheim, Washington, D. C., was on the brief, for appellant Ashland Oil, Inc., in Nos. 77-1728 and 77-1732.

Daniel K. Mayers and Neil J. King, Washington, D. C., were on the brief, for appellants The Babcock and Wilcox Co., et al., in Nos. 77-1728 and 77-1732.

William C. Collishaw, Washington, D. C., was on the brief, for appellant White Consolidated Industries, Inc., in Nos. 77-1728 and 77-1732.

Samuel K. Abrams and Wilbur L. Fugate, Washington, D. C., were on the brief, for appellants Cone Mills Corp., et al., in Nos. 77-1728 and 77-1732.

Raymond E. Vickery, Jr., Washington, D. C., was on the brief, for appellants Hughes Tool Co., et al., in No. 77-1732.

Ramsay D. Potts and Steven L. Meltzer, Washington, D. C., were on the brief, for appellant Emerson Elec. Co., in Nos. 77-1728 and 77-1732.

Milton Wolson, New York City, and S. White Rhyne, Jr., Washington, D. C., was on the brief, for appellant SCM Corp., in Nos. 77-1728 and 77-1732.

Albert R. Connelly, New York City, was on the brief, for appellant Bethlehem Steel Corp., et al., in Nos. 77-1728 and 77-1732.

Edwin S. Rockefeller and Alan M. Frey, Washington, D. C., were on the brief, for appellant Norton Simon, Inc., in Nos. 77-1728 and 77-1732.

David J. Lewis and Elroy H. Wolff, Washington, D. C., were on the brief, for appellants Thomas Lipton, Inc., et al., in Nos. 77-1728 and 77-1732.

Anthony B. Barton, New York City, was on the brief, for appellant, American Maize-Products, Co., in Nos. 77-1728 and 77-1732.

Eve E. Backrack, Washington, D. C., was on the brief, for appellant Food Fair Stores, Inc., in No. 77-1732, and for appellant C.I.T. Financial Corp., in No. 77-1728.

Coswell O. Hobbs, III, Washington, D. C., was on the brief, for American Stores Co., in No. 77-1732.

Robert J. Pope, Washington, D. C., was on the brief, for appellant Continental Group, Inc., in No. 77-1732.

Philip A. Lacavara and Gerald Goldman, Washington, D. C., were on the brief, for appellants Merck and Co., Inc., et al., in No. 77-1728.

J. Stanley Stroud, Washington, D. C., was on the brief, for appellants CPC Intern., Inc., et al., in No. 77-1728.

David B. Lytle, Washington, D. C., was on the brief, for appellant Republic Steel Corp., in No. 77-1728.

Joseph W. Burns, New York City, was on the brief, for appellant Ingersoll-Rand Co., in No. 77-1728.

Ronald G. Precup, Washington, D. C., was on the brief, for appellant American Beef Packers, Inc., in No. 77-1728.

Gilbert H. Weil, New York City, was on the brief, for Bristol-Myers Co., in No. 77-1728.

William Simon, Harold F. Baker, David C. Murchison, J. Wallace Adair, John DeQ. Briggs, III, and Stuart H. Harris, Washington, D. C., were on the brief, for appellants American Cyanamid Co., et al., in Nos. 77-1728, 77-1732, 77-1930 and 77-1931.

Robert E. Jordan, III, Washington, D. C., Edward E. Vaill, Los Angeles, Cal., and Robert M. Goolrick, Washington, D. C., were on the brief, for appellant, Atlantic Richfield Co., in Nos. 77-1728 and 77-1732.

Andrew J. Kilcarr and Vincent Tricarico, Washington, D. C., were on the brief, for appellant Mobil Oil Corp., in Nos. 77-1728 and 77-1732.

Jesse P. Luton, Jr., John E. Bailey and Kevin F. Cunningham, Houston, Tex., were on the brief, for appellant Gulf Oil Corp., in Nos. 77-1728 and 77-1732.

Paul J. Newlon, Victoria G. Traube and Michael A. Lampert, New York City, were on the brief, for appellant Milliken and Co., et al., in Nos. 77-1728, 77-1732, 77-1942, 77-1943 and 77-1944.

Leslie W. Jacobs, Akron, Ohio, was on the brief, for appellant The Goodyear Tire and Rubber Co., et al., in Nos. 77-1728 and 77-1732.

Gerald P. Norton, Deputy Gen. Counsel, Federal Trade Commission, Washington, D. C., with whom Jerald D. Cummins, Acting Asst. Gen. Counsel, Joanne L. Levine, Sophie A. Krasik, Thomas A. Sheehan, III, and Arthur W. Adelberg, Attys., Federal Trade Commission, Washington, D. C., were on the briefs, for appellees Federal Trade Commission, in Nos. 77-1728, 77-1732, 77-1930, 77-1931, 77-1942, 77-1943, 77-1944, 77-1947 and 77-1956, and cross-appellants in Nos. 77-1952 and 77-1953.

Frank A. Rosenfeld, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee Comptroller General, in No. 77-1728.

Before BAZELON and ROBINSON, Circuit Judges, and AUBREY E. ROBINSON, Jr., ^* District Judge, United States District Court for the District of Columbia.

Opinion PER CURIAM.

PER CURIAM:

We review the decisions of the District Court granting summary judgment to the Federal Trade Commission (Commission or FTC) and enforcing the Commission's orders requiring appellant corporations to file financial performance reports as part of the Line of Business (LB) and Corporate Patterns Report (CPR) surveys. ¹ These two broad-based statistical surveys are conducted by the FTC pursuant to its authority under Section 6(b) of the Federal Trade Commission Act, which empowers the Commission to require corporations to file informational reports regarding the company's "organization, business, conduct, practices, management, and relation to other corporations." ²

I. THE FTC SURVEYS

A. The Line of Business Program.

In August 1975, as part of the Line of Business survey, the Commission ordered 450 of the nation's largest domestic manufacturing concerns to file reports disclosing certain indicia of financial performance for 1974. ³ The 1974 LB form sent to each corporate respondent consists of four schedules. ⁴ Schedule I seeks information identifying the company and its subsidiaries. Schedule II elicits a description of the company's lines of business. Schedule III, the heart of the form, exacts specific financial and statistical data including revenues, costs, profits and assets for each of the company's lines of business. Schedule IV requires reconciliation with other parts of the form and with the company's published financial data. The key feature of the survey is its requirement that each company present its financial performance statistics in terms of a uniform set of market categories. ⁵

The Commission proposes to aggregate the LB statistics within each market category in order to identify areas of the economy in which profits are relatively high or low and to assess relationships between market structure and performance, and to use this information to target particular markets for industry-wide investigations into potential antitrust violations or unfair trade practices. ⁶ Since corporate financial performance data otherwise available to the Commission are not reported in terms of uniform market categories, the LB survey is expected to provide the only performance statistics susceptible to comparison on an industry-by-industry basis. ⁷ Aside from internal use of the LB data, the Commission has indicated an interest in publishing the aggregate market statistics to facilitate efforts by investors, managers and scholars to further the effectiveness of the competitive system. ⁸

The Commission began developing the Line of Business form in 1970. After extended consideration and extensive revisions, a limited survey was conducted to collect 1973 data. ⁹ Revisions were made as a result of the Commission's experience with the 1973 survey,...