(concurring).
The result reached by the Trial Examiner, the Board and this Court is correct. However, confusion exists in terminology. Jurisdiction exists by statute.1 Thereby the Board may consider any case as to a concern doing a substantial amount of business within a territory, irrespective of the impact thereof upon interstate commerce.2 The Board had the power to act and adjudge in the instant case. But it is equally well established that the exercise of the admitted jurisdiction is not an imperative for the Board.3 It has the power in administrative discretion to decline to act in a particular case if it believes an adjudication would not effectuate the policies of the National Labor Relations Act. The determination of the Board to accept or decline a particular case should be almost, if not absolutely, conclusive.4 Comparable administrative discretion is exemplified by the District Attorney who decides whether or not to file an information or by the traffic policeman who ponders whether or not to give a ticket. The use' of the phrase “jurisdictional standards” is utterly misleading.5 These expressions in the Board’s opinions do not constitute a “rule.” 6 If the Board were laying down a rule, it would be required to duly promulgate and publish the text in the Federal Register.’7’ It is doubtful that such a “rule” would be valid in any event. For it seems that, under the statute, the Board must exercise its discretion in each individual case whether to *198accept or decline.8 The .announcement in its decisions of certain criteria, which it will consider in exercising discretion, is eminently proper and gives fair notice.9
• The only question for this Court is whether the Board actually exercised discretion instead of following some arbitrary rule of thumb. If discretion were in fact exercised even though standards previously announced’ Were applied, this Court has no power to interfere, even though we might believe the facts here would require the acceptance of the case. ■ •
Unquestionably, the Board- did exercise its discretion. The fact that in certain cases the Board has not felt bound to follow these standards as to territories slavishly is a circumstance which is almost conclusive.
The Board had the power, in’its discretion, to refuse to consider this cause, and the dismissal of the complaint was. proper.
. 29 U.S.C.A. § 160(a), National Labor Relations Act as amended by the Labor-Management Relations Act of 1947.
. National Labor Relations Board v. Fainblatt, 300 U.S. 601, 606-607, 59 S.Ct. 668, 83 L.Ed. 1014; National Labor Relations Board v. Townsend, 9 Cir., 185 F.2d 378, 382; Katz v. National Labor Relations Board, 9 Cir., 196 F.2d 411, 413.
. National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579; Haleston Drug Stores v. National Labor Relations Board, 9 Cir., 187 F.2d 418, 422; National Labor Relations Board v. Townsend, 9 Cir., 185 F.2d 378, 383; National Labor Relations Board v. Guy F. Atkinson Co., 9 Cir., 195 F.2d 141, 144.
. Cf. National Labor Relations Board v. Guy F. Atkinson Co., 9 Cir., 195 F.2d 141, where it is indicated that there are limits within which the Board must act.
. Indeed, it has been squarely held that these criteria are “not jurisdictional.” National Labor Relations Board v. Daboll, 9 Cir., 216 F.2d 143, 144.
. 5 U.S.C.A. § 1001(c).
. 29 U.S.C.A. § 156; 5 U.S.C.A. § 1002(a) *198(3); Hotch v. United States, 9 Cir., 212 F.2d 280. Cf. National Labor Relations Board v. Guy F. Atkinson Co., 9 Cir., 195 F.2d 150.
. Polish Nat. Alliance of United States v. National Labor Relations Board, 322 U.S. 643, 648, 64 S.Ct. 1196, 88 L.Ed. 1509; National Labor Relations Board v. Townsend, 9 Cir., supra.
. National Labor Relations Board v. Daboll, supra; National Labor Relations Board v. Cantrall, 9 Cir., 201 F.2d 853; Optical Workers Union v. National Labor Relations Board, 5 Cir., 227 F.2d 687. See 62 Yale Law Journal 116.