371 F.

2d 613

FEDERAL TRADE COMMISSION, Petitioner,

v.
STANDARD MOTOR PRODUCTS, INC., Respondent.
No. 34, Docket 30325.

United States Court of Appeals Second Circuit.

Argued Oct. 24, 1966.
Decided Jan. 9, 1967.

Miles J. Brown, Federal Trade Commission, Washington, D.C. (James

McI. Henderson, Gen. Counsel, and J. B. Truly, Asst. Gen. Counsel,
Federal Trade Commission, Washington, D.C., on the brief), for
petitioner.
Edward S. St. John, New York City (Thomas P. Dougherty, New York
City, on the brief), for respondent.
Before LUMBARD, Chief, Judge MOORE and KAUFMAN, Circuit
Judges.
LUMBARD, Chief Judge.

The Federal Trade Commission petitions for enforcement of its order issued on
December 27, 1957, directing the respondent, Standard Motor Products, Inc.
(Standard), to cease and desist from charging different net prices to purchasers
who compete in the resale of its products, in violation of the Robinson-Patman
Act, 49 Stat. 1526 (1936), 15 U.S.C. 13.

The Commission's petition raises two important questions: (1) whether this
Court has jurisdiction to enforce cease and desist orders issued by the
Commission under the Clayton Act prior to the passage of the Clayton Finality
Act, 73 Stat. 243 (1959); and (2) whether the Commission correctly rejected
Standard's attempted cost justification of its volume rebate system. We hold that
we have jurisdiction to enforce pre-1959 orders, but we hold that in dealing
with the important issue of the use of average costs of volume classes of
purchasers the Commission failed to articulate criteria reconciling the

objectives of the cost justification proviso with those of the Robinson-Patman

Act as a whole. We therefore deny enforcement of the order.
3

The Commission's order, 54 F.T.C. 814 (1957), based upon findings that
respondent's volume rebates injured competition among purchasers and were
not justified as 'made in good faith to meet an equally low price of a
competitor,' 49 Stat. 1526 (1936), 15 U.S.C. 13(b), was affirmed by this Court,
265 F.2d 674 (2 Cir. 1959), and the Supreme Court denied certiorari. 361 U.S.
826, 80 S.Ct. 73, 4 L.Ed.2d 69 (1959).

The Clayton Act as it stood when the Commission's order was affirmed by this
Court in 1959 provided no direct sanction for violation of an order so affirmed.
The Commission was required to petition the court of appeals for a decree
enforcing the order, which would issue if the court found that the order had
been or was about to be violated. Ruberoid Co. v. FTC, 191 F.2d 294 (2 Cir.
1951) (per curiam), aff'd, 343 U.S. 470, 477-480, 72 S.Ct. 800, 96 L.Ed. 1081
(1952). The respondent might then be held in contempt if the enforcement
decree was violated. E.g., In re Whitney & Co., 273 F.2d 211 (9 Cir. 1959).
This Court has held that if the Commission before petitioning for enforcement
of its order conducted a hearing and found that the order had been violated, the
Court could treat its findings as though it had been appointed as a master to
determine whether violations had occurred. FTC v. Standard Brands, Inc., 189
F.2d 510 (2 Cir. 1951); cf. FTC v. Washington Fish & Oyster Co., Inc., 271
F.2d 39 (9 Cir. 1959).

The Commission accordingly directed Standard to file a report of its

compliance with the order which this Court had affirmed. In October 1961
Standard introduced new rebate schedules, which for the first time it sought to
justify as making 'only due allowance for differences in the cost of
manufacture, sale, or delivery resulting from the different methods or quantities
in which (its) commodities are * * * sold or delivered.' 49 Stat. 1526 (1936), 15
U.S.C. 13(a). Although Standard had been informed in June 1961 that the
Commission's Division of Accounting has accepted Standard's 1058 cost study
on which its new rebate schedules were based, the Commission in March 1962
rejected its compliance report. The Commission directed a compliance hearing,
at which Standard presented a 1962 cost study. On the record of the hearing,
which was certified to it without any recommendations, the Commission held
that Standard had failed to show that its rebates were cost justified, and that it
had therefore violated the 1957 order.
I.

Standard contends that this Court lacks jurisdiction to enforce the

Commission's order because of the passage of the Clayton Finality Act, 73 Stat.
243 (1959), which amended section 11 of the Clayton Act, 15 U.S.C. 21. We
do not agree. The Clayton Finality Act amended the third and fourth paragraphs
of section 11, providing for review and enforcement of Commission orders, 'to
read as follows,' and set forth an expedited procedure under which an order
becomes 'final' upon affirmance by a court of appeals (subject to Supreme
Court review) or, where no review has been sought, automatically upon
expiration of the sixty days allowed to seek review by a court of appeals. A
showing that the respondent has violated the order is not necessary. Violation
of a final order draws a civil penalty of not more than $5,000 for each violation,
or for each day of a continuing violation.

Section 2 of the Clayton Finality Act expressly preserved old procedure as to

certain pending 'proceedings':

'The amendments made by section 1 shall have no application to any

proceeding initiated before the date of enactment of this Act under the third or
fourth paragraph of section 11 of the (Clayton act). Each such proceeding shall
be governed by the provisions of such section as they existed on the day
preceding the date of enactment of this Act.' The original third paragraph of
section 11 provided for enforcement of Commission orders by a court of
appeals, and the fourth for review of orders at the instance of the respondent.
64 Stat. 1127 (1950), as amended.

Immediately after the passage of the Clayton Finality Act, the Commission
contended that orders it had previously issued would become final within sixty
days, as though they had been issued on the day the Act was passed. The
District of Columbia Circuit held, however, that the new procedure applied
only to orders issued after the passage of the Act. Sperry Rand Corp. v. FTC,
110 U.S.App.D.C. 1, 288 F.2d 403 (1961). It noted that the Wheeler-Lea Act,
52 Stat. 111 (1938), as amended, 15 U.S.C. 45, which gave orders under the
Federal Trade Commission Act the expedited finality which the Clayton
Finality Act extended to the Commission's orders under the Clayton Act, had
explicitly provided that outstanding orders should become final under the new
procedure. The Supreme Court approved the Sperry Rand holding in FTC v.
Henry Broch & Co., 368 U.S. 360, 365 n. 5, 82 S.Ct. 431, 7 L.Ed.2d 353
(1962), and in response to Broch's challenge to the breadth of the order
affirmed under the old procedure observed that it could be restricted if and
when the commission petitioned for enforcement.

10

Despite the Broch decision, the Ninth Circuit recently held in FTC v. Jantzen,

10

Despite the Broch decision, the Ninth Circuit recently held in FTC v. Jantzen,
Inc., 356 F.2d 253 (9 Cir.), cert. granted, 385 U.S. 810, 87 S.Ct. 76, 16 L.Ed.2d
52 (1966), that the Clayton Finality Act worked an express repeal of the
jurisdiction of the courts of appeals to affirm or enforce orders outstanding
when the Clayton Finality Act was passed, except as to pending 'proceedings'
preserved by section 2. It distinguished Broch on the ground that the respondent
in that case had petitioned a court of appeals for review under the old fourth
paragraph of section 11 before the passage of the Clayton Finality Act, so that a
petition for enforcement would be part of a 'proceeding' saved by section 2. See
356 F.2d at 259. The Ninth Circuit's conclusion that enforcement of the order
affirmed in Broch would be authorized by section 2 is clearly correct, since
otherwise Broch's petition for review, expressly saved by section 2, would have
had to be dismissed as moot. Cf., e.g., Muskrat v. United States, 219 U.S. 346,
360-363, 31 S.Ct. 250, 55 L.Ed. 246 (1911). 1 This conclusion is fatal to
Standard's contention that this Court lacks jurisdiction to enforce the
Commission's order against it, since Standard, like Broch, petitioned for review
under the old fourth paragraph of section 11 before the Clayton Finality Act
was passed.

11

We do not rest our holding that we have jurisdiction upon the Ninth Circuit's
narrow reading of Broch, however, because we do not agree with the decision
in Jantzen. We believe that the old procedure remains available for enforcement
of all orders issued before the passage of the Clayton Finality Act. There is no
indication in the legislative history of the Act that, congree intended to relegate
any class of outstanding orders to the limbo of unenforceability. Under the
Jantzen ruling, the stated purpose of the Act, expedition of judicial review and
enforcement of Commission orders under the Clayton Act, would be frustrated
as to some 400 outstanding orders.

12

The Ninth Circuit suggested in Jantzen that Congress might well have chosen to
abate pre-1959 orders because 'all that the Commission has to do where it finds
a violation of the Clayton Act that is also a violation of an old cease and desist
order is to enter a new cease and desist order', which will become final and
enforceable after a single opportunity for review by a court of appeals. 356
F.2d at 260. But as comentators on Jantzen have observed,2 this conclusion
disregards two important factors. First, when the Commission petitions for
enforcement under the old procedure, a respondent cannot raise defenses
available to him when the order was originally issued, FTC v. Ruberoid Co.,
343 U.S. 470, 476-477, 72 S.Ct. 800, 96 L.Ed. 1081 (1952), and may not be
able to deny that his price differentials injure competition. See Jaffe, The
Judicial Enforcement of Administrative Orders,76 Harv.L.Rev. 865, 897-898
(1963). It is not clear whether he would be similarly barred if a new cease-anddesist order were sought, based upon alleged new violations. Compare, e.g.,

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-603, 68 S.Ct.

715, 92 L.Ed. 898 (1948); FTC v. Raladam Co., 316 U.S. 149, 62 S.Ct. 966, 86
L.Ed. 1336 (1942). See generally 2 Davis, Administrative Law Treatise 18.02.04 (1958). Second, after the Commission has found that a respondent has
violated the Clayton Act, it may sometimes order him to refrain from acts
which in themselves would not violate the Act. E.g., FTC v. National Lead Co.,
352 U.S. 419, 430, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957). Thus the Commission
would lose important advantages if it had to seek a new order instead of
obtaining enforcement of an existing order.
13

The Ninth Circuit relied in its decision upon the omission of the old procedure
when section 11 of the Clayton Act was amended 'to read as follows,' and its
express retention for certain limited purposes by section 2 of the Clayton
Finality Act. But the rule that amendment 'to read as follows' repeals everything
omitted, and the maxim expressio unius set exclusio alterius, are aids in the
interpretation of statutes, not syllogisms. They must yield where their
application would be inconsistent with the purposes of the statute. E.g., SEC v.
C. M. Joiner Leasing Corp., 320 U.S. 344, 350-352, 64 S.Ct. 120, 88 L.Ed. 88
(1943); 1 Sutherland, Statutes and Statutory Construction 2017 (3d ed. Horack
1943); 2 id. 4917. As we have stated, we believe that the Jantzen decision is
inconsistent with the purpose of the Clayton Fnality Act.3 For these reasons we
conclude that the Commission could petition for enforcement of its 1957 order.

14

We turn now to whether the order should be enforced in light of the new
volume rebates which Standard made effective in 1961 and 1964.
II.

15

Standard sells two lines of automotive replacement parts, the Standard line of
electrical system parts and the Hygrade line of carburetor and speedometer
parts. On each line it grants retroactive annual rebates, based on volume of
purchases for resale to dealers,4 the rebate percentage rising from one volume
class to another. For example, the volume classes and rebate percentages for the
Standard line (effective January 1, 1964) are:

Volume Class
16

--------------$
0-- 2,999
3,000-- 5,999
6,000-- 9,999
10,000--24,999
25,000--over

Rebate
-----4%
10
13
15
17

17

18

Standard's cost justification studies undertook to show that these differing

rebate percentages were justified by differences in four classes of selling
expenses-- direct selling, catalog, branch were-house, and administrative.
The Commission's basic ground for rejecting Standard's attempted cost
justification was the frequent deviation of selling costs attributable to individual
purchasers in a volume class from the average cost for that class. While it did
not 'reach the question of whether annual volume rebate allowance programs
are per se unacceptable,' the Commission held that 'before assigning his
customers to a particular rebate bracket, the seller should carefully measure
their buying characteristics to be certain that those to be bracketed in all
probability will have like cost percentages.' The Commission stated at another
point that Standard 'must at least demonstrate that a significant majority of
those customers relegated to a particular volume group most likely had costs
supporting their inclusion in that group.' In most volume classes in the Standard
and Hygrade lines, however, the majority of purchasers had costs closer to the
average cost of the class above or below, as the following table illustrates for
the Standard line:

Average
Cost
-------

Percentage
With Costs
Closer to
Another Average
---------------

29.51%

29.9%

16.11%

54.2%

12.89%

70.1%

9.41%

67.2%

7.58%

70.6%

7.21%

37.5%

19
Volume
Class
--------$
0-2,999
3,000-5,999
6,000-9,999
10,000-24,999
25,000-39,999
40,000-over

20 Commission emphasized that it was 'not holding that a seller with a large
The
number of purchasers must individually cost them out * * *.' It thus recognized, as
the Supreme Court has stated, that individual cost justification is not required,
because it would render uneconomical and impractical even the granting of cost
justified price differentials, and 'it seems hardly necessary to say that such a result is
at war with Congress' language and purpose.' United States v. Borden Co., 370 U.S.
460, 468, 82 S.Ct. 1309, 1314, 8 L.Ed.2d 627 (1962); Reid v. Harper & Bros., 235
F.2d 420 (2 Cir.), cert. denied, 352 U.S. 952, 77 S.Ct. 326, 1 L.Ed.2d 242 (1956);
American Can Co. v. Russellville Canning Co., 191 F.2d 38, 59 (8 Cir. 1951).

Standard contends, however, that the practical effect of the Commission's rejection
of its use of volume classes is to force it to cost justify its rebate to each individual
purchaser.
21

The Commission has not suggested that any administrable alternative means of
classifying customers is available to Standard.5 Nor has it indicated the
conditions under which it might accept volume rebate schedules for the
Standard and Hygrade lines.6 Thus it may well be, as Standard argues, that the
Commission has left if no practicable means of cost justification. If so, it is not
enough to state, as the Commission does, that 'the obvious result of respondent's
discriminatory rebate schedule is that a great number of low-cost customers are
burdened with part of the expenses of higher cost purchasers.' This 'economic
discrimination'-- charging low-cost and high-cost purchasers the same price,
see Rowe, Price Discrimination Under the Robinson-Patman Act 2.2 (1962)-must be weighed against that which would result from enforced uniform prices,
which seem likely to load more of the expense of serving high-cost purchasers
upon low-cost purchasers, and which might lead Standard to decide not to sell
to small-volume purchasers.7

22

Moreover, the economic discrimination resulting from Standard's present

rebates should have been analyzed more carefully than the Commission has
done. For example, Standard adduced evidence that purchasers frequently shift
from one volume class to another, or from high to low costs within a volume
class, from year to year. Such shifting would seem likely to bring any
individual purchaser's average cost over several years closer to the average of
his volume class, and thus to lessen the apparent economic discrimination
described by the Commission. If so, the Commission should have considered
it.8 A careful comparison of the economic discrimination under Standard's
present rebates with that under any practicable alternative system of pricing
might have led to the conclusion that the present system is the best attainable
from this point of view.

23

Besides analyzing the economic discrimination produced by Standard's rebates,

and possible alternative purchaser classifications, the Commission should have
attempted to determine whether other sellers in the automobile replacement
parts industry, and in other industries, can meet the standards of classification
the Commission formulates. If most cannot, there would be serious doubt that
the standards adequately respect the purposes of the cost justification proviso.9
We hold, then, that before rejecting Standard's cost justification studies the
Commission should have brought its experience and expertise to bear on the
problem of defining practicable standards of customer classification for cost
justification purposes which reconcile the objectives of the cost justification

proviso and of the Robinson-Patman Act as a whole.10

24

The Commission contends, however, that the standards of customer

classification laid down in its report are justified, without any such inquiry as
we have held must be made, by the following language of the Supreme Court in
United States v. Borden Co., 370 U.S. 460, 468-469, 82 S.Ct. 1309, 1314
(1962):

25

'But this is not to say that price differentials can be justified on the basis of
arbitrary classifications or even classifications which are representative of a
numerical majority of the individual members. At some point practical
considerations shade into a circumvention of the proviso. A balance is struck by
the use of classes for cost justification which are composed of members of such
selfsameness as to make the averaging of the cost of dealing with the group a
valid and reasonable indicium of the cost of dealing with any specific group
mamber. High on the list of 'musts' in the use of the average cost of customer
groupings under the proviso of 2(a) is a close resemblance of the individual
members of each group on the essential point or points which determine the
costs considered.'

26

We think, however, that this language must be read in light of the distinctive
facts in Borden. Borden allowed volume discounts up to 4% on sales of milk to
independently owned grocery stores, but granted a flat 8 1/2% discount to two
chains.11 Borden attempted to cost justify this large differential by comparing
the average cost attributable to the favored chains with that of all other stores,
large and small, taken as a single class. Rejecting this attempted justification,
immediately after the language set forth above, the Court stated:

27

'In this regard we do not find the classifications submitted by the appellees to
have been shown to be of sufficient homogeneity. Certainly, the cost factors
considered were not necessarily encompassed within the manner in which a
customer is owned. * * * For instance, the favorable cost comparisons between
the chains and the larger independents were for the greater part controlled by
the higher average volume of the chain stores in comparison to the average
volume of the 80-member class to which these independents were relegated. * *
* Such a grouping for cost justification purposes, composed as it is of some
independents having volumes comparable to, and in some cases larger than,
that of the chain stores, created artificial disparities between the larger
independents and the chain stores. It is like averaging one horse and one rabbit.
As the Federal Trade Commission said in In the Matter of Champion Spark
Plug Co., 50 F.T.C. 30, 43 (1953): 'A cost justification based on the difference
between an estimated average cost of selling to one or two large customers and

an average cost of selling to all other customers cannot be accepted as a defense

to a charge of price discrimination." 370 U.S. at 469-470, 82 S.Ct. at 1314.
28

The Court was clearly concerned with the use of the average cost of the vast
majority of purchasers to cost justify large discounts to the few largest
purchasers, a practice which had several times been explicitly condemned. E.g.,
American Can Co. v. Bruce's Juices, Inc., 187 F.2d 919 (5 Cir.), cert.
dismissed, 342 U.S. 875, 72 S.Ct. 165, 96 L.Ed. 657 (1951); Champion Spark
Plug Co., 50 F.T.C. 30, 42-43 (1953); International Salt Co., 49 F.T.C. 138,
154-155 (1952). But cf. American Can Co. v. Russellville Canning Co., 191
F.2d 38, 56-60 (8 Cir. 1951). The Government did not question the remainder
of Borden's discount schedule, so that the Court was not presented with the very
different issue raised by this proceeding of the homogeneity required within
each class of a volume discount system with a reasonable number of classes. So
far as we can discover, neither courts, Commission, nor commentators have
ever analyzed this issue.12 It follows that the Commission cannot rely upon the
Court's general language in Borden to relieve it of the obligation to analyze the
issue.13
III.

29

The Commission also rejected several particulars of Standard's cost justification

studies. The most important involved the allocation of catalog costs among
customers. Standard assumed that the number of catalogs a purchaser received
varied in direct proportion to the volume of his purchases, and allocated
'variable' catalog costs accordingly. However, it allocated 'fixed' catalog costs-the costs of composing the catalogs and readying the presses for the first run-equally among all customers, on the theory that each required at least one
catalog. The Commission held that both types of catalog costs should be
allocated in proportion to the number of catalogs received by each purchaser,
eliminating all catalog cost differentials between volume classes on Standard's
assumption that catalogs distributed varied according to volume, and found that
'with catalog costs removed, respondent's cost study fails in several volume
brackets.'

30

We do not think that this point alone justifies acceptance of the Commission's
report. First, while some differentials between volume classes are not fully
justified by differences in costs after the Commission's reallocation, the
remaining differentials are over-justified by an even greater amount, so that the
rebate schedules could be adjusted-- with the end points remaining the same-so as to be fully cost justified. Second, and more important, we entertain some
doubt that the criterion apparently applied by the Commission is rejecting

Standard's cost allocation was correct. The Commission apparently did not find
that Standard's method of allocation was irrational or not in accord with
generally accepted principles; it seems merely to have preferred its own
method.14 It might be argued, however, that unless Standard's allocation was
demonstrably irrational or out of accord with accounting principles, it should be
accepted despite the Commission's preference for another mode of allocation.
Compare Int. Rev. Code of 1954, 446(b) (Commissioner may change
taxpayer's method of accounting only if it 'does not clearly reflect income'). The
inevitably judgmental character of cost allocation might otherwise go far
toward making the cost justification defense an illusory one in practice. See
Rowe, Price Discrimination Under the Robinson-Patman Act 10.13, at 307
(1962).15
31

The Commission questioned certain of Standard's other cost allocations as

estimates, but apparently none of these caused Standard's studies to fail.

32

We have carefully considered Standard's procedural objections to the

Commission's conduct of the compliance hearing, and with the exception of
that discussed in footnote 9 have found them without merit.

33

Petition for enforcement denied.

Thus the Supreme Court's recognition of the possibility of enforcement in

Broch was not dictum, because a federal court must dismiss a moot case even if
neither party urges it. E.g., United States v. Hamburg-Amerikanische Packet
Fahrt-Actien Gesellschaft, 239 U.S. 466, 475-476, 36 S.Ct. 212, 60 L.Ed. 387
(1916); People of State of California v. San Pablo & T. R.R., 149 U.S. 308, 13
S.Ct. 876, 37 L.Ed. 747 (1893)

Kauper, FTC v. Jantzen: Blessing, Disaster, or Tempest in a Teapot? 64

Mich.L.Rev. 1523, 1540-1547 (1966); Recent Decision, 34 Geo.Wash.L.Rev.
939 (1966)

Because we hold that the purpose of the Clayton Finality Act required that the
old procedure remain applicable to orders issued before it was passed, we need
not consider whether an unenforced order is a 'liability' which will be preserved
by the General Savings Statute, 61 Stat. 635 (1947), 1 U.S.C. 109, unless
expressly abated by Congress. Compare FTC v. Jantzen, Inc., 356 F.2d 253,
260-261 (9 Cir.), cert. granted, 385 U.S. 810, 87 S.Ct. 76, 17 L.Ed.2d 52
(1966), with, e.g., NLRB v. National Garment Co., 166 F.2d 233 (8 Cir.) cert.
denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L.Ed. 1768 (1948)

Wholesalers who resell to other wholesalers receive functional discounts at the

time of purchase higher than the highest volume rebate percentages. The
Commission has not challenged these discounts in this proceeding

The Report of the Commission's Advisory Committee on Cost Justification, p.

8 (mimeo, 1956), reprinted in Taggart, Cost Justification 555, 561 (1959),
suggests that 'customer groupings may properly be based not only on quantities
sold but also according to the way customers place their orders: whether for
immediate delivery or later shipment on a fixed schedule; in large or small
orders; placed directly at the factory or through a sales branch; for on-peak or
off-peak manufacture; etc.' But these alternative classifications may well not be
practicable. Standard presumably would have to use the first three (the fourth
seems irrelevant to selling costs) together, possibly resulting in at least eight
classes, as they appear to be independent factors influencing costs. Other
factors, such as salesmen's time, would probably need to be added. And use of
such factors might well entail calculating a separate discount for each
transaction, rather than a single annual rebate

For example, the Commission had not indicated whether it would prefer the use
of broader or narrower volume classes. The use of brodader classes would seem
likely to reduce the number of purchasers with costs closer to the average of
another class, while increasing the standard deviation from the average cost
within each class. This inconsistency between the two standards that the
Commission's report suggests it intends to apply indicates the need for a more
careful analysis by the Commission

If the Commission finds that alternative ways of classifying purchasers are

available to Standard, it should weigh the economic discrimination under those
alternatives against that caused by Standard's present rebates

Such a long-term view of the impact of Standard's rebates on competition is

suggested by the fact that the Robinson-Patman Act is concerned with 'the
effect upon competition and not merely upon competitors.' Anheuser-Busch,
Inc. v. FTC, 289 F.2d 835, 840 (7 Cir. 1961)

One of Standard's procedural complaints is relevant to this inquiry. Standard

sought to subpoena the compliance report accepted by the Commission in
Guaranteed Parts Co., FTC Dkt. No. 6987, which embodied a cost justification
study said by the accountant who supervised the preparation of both to be
substantially similar to Standard's. The Commission denied the request on the
ground that its acceptance of the Guaranteed Parts study did not require it to
accept Standard's. Cf., e.g., FCC v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91
L.Ed. 204 (1946). But cf. Universal-Rundle Corp. v. FTC, 352 F.2d 831 (7 Cir.

1965), cert. granted, 385 U.S. 809, 84 S.Ct. 31, 17 L.Ed.2d 51 (1966). The
Guaranteed Parts study was relevant, however, to the issue whether sellers in
general would be able to comply with the Commission's standards for
classification of purchasers, and we think that the report should have been made
available
10

Of course, the Commission may now bring a new compliance proceeding to

determine whether Standard has violated the 1957 order, and may consider the
evidence taken at the prior compliance hearing. FTC v. Standard Brands, Inc.,
189 F.2d 510 (2 Cir. 1951)

11

The facts in the companion case decided by the same opinion were
substantially similar

12

See generally Taggart, Cost Justification (1959). Numerous commentators have

stated generally (and unhelpfully) that 'the respondent must be held to a
showing that cost variations within a class are not widely dissimilar. The
average of cost variations within a class must be truly representative of the
class as a whole.' Sawyer, Business Aspects of Pricing Under the RobinsonPatman Act 4.13, at 158 (1963); see Freer, Accounting Problems Under the
Robinson-Patman Act, 65 J. Accountancy 480, 483-84 (1938)
The Commission said in Minneapolis-Honeywell Regulator Co., 44 F.T.C. 351,
394 (1948): 'It has been urged that there is necessarily a failure of cost
justification where the quantities purchased by two competing customers at
applicable price differentials are nearly the same, with one being just below and
the other being at or slightly above the minimum quantity for a particular
bracket. This argument may be persuasive in a case where such a situation is
actually shown and where there is some indication that it is a matter of
competitive importance.' We hold here, as the Commission hinted in
Minneapolis-Honeywell, that it should have analyzed the competitive injury
resulting from Standard's purchaser classification.

13

In the factual context of Borden, the Court's statement that there should be 'a
close resemblance of the individual members of each group on the essential
point or points which determine the costs considered' meant that purchasers
could not be classified by type of ownership when costs varied largely with
volume of purchases. Here, however, Standard has classified purchasers by
volume, another reason why its cost justification cannot be judged simply by
reference to the Supreme Court's language in Borden

14

The Commission's accounting witness testified: 'I would say again, that it
would have been more proper to just determine a cost per unit for these catalogs
and distribute that cost on the basis of amounts furnished to each customer'

A catalog cost allocation like Standard's was apparently accepted by the

Commission's Division of Accounting (although not reviewed by the hearing
examiner or the full Commission) in Thompson Prods., Inc., 55 F.T.C. 1252,
1254-1256 (1959). See Taggart, Cost Justification 444-445 (1959).
15

Such a holding would not relax the burden of proof on the respondent to justify
cost allocations by 'concrete and specific evidence,' rather than by 'conjectural
accounting estimates alone.' E.g., Reid v. Harper & Bros., 235 F.2d 420 (2
Cir.), cert. denied, 352 U.S. 952, 77 S.Ct. 326, 1 L.Ed.2d 242 (1956); see
Automatic Canteen Co. v. FTC, 346 U.S. 61, 68-69, 73 S.Ct. 1017, 97 L.Ed.
1454 (1953). It would only mean that where the basic principle of allocation is
properly a matter of opinion, the Commission should not, for that reason alone,
reject other opinions