(concurring).
I concur in Judge WATERMAN’S closely reasoned opinion in its entirety, including his expression of doubt as to the power of the SEC to promulgate Rule X-16B-3. This doubt must arise when the rule is viewed against the statute and the Congressional purpose as we have often declared it since its first expression now generally accepted as authoritative in Smolowe v. Delendo Corp., 2 Cir., 136 F.2d 231, 148 A.L.R. 300, certiorari denied Delendo Corp. v. Smolowe, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446. I would feel it unnecessary to add anything except that a late suggestion for appeal to the Commission or other delaying steps makes some statement of our court practice desirable.
Whatever value or validity the suggestion might otherwise have (a matter discussed below), we think it should be denied in any event here because it is so late. The appeal was argued on January 11, 1957; because of some of the difficulties under which this court has labored during recent months, decision was necessarily delayed for four months, although the opinion has been available for filing since early in May. The Judicial Conference of the United States holds that delay in decision of appeals under submission for more than three months is a matter calling for formal explanation. Rep. of Proceedings of a Spec. Sess. of the Jud. Conf. of the U. S., March 14, 15, 1957, p. 6. While we cannot hope, in view of the exigencies we face, to equal the unusual record for expedition of our predecessors in this court, we certainly should do what we can to avoid unnecessary delays. And the suggestion here coming at the end of a crowded year and calling for certain difficult adjustments of inquiry and approach would mean a delay in all probability of six to nine months, particularly if oral argument were to be contemplated. Such delay for determining not the decision, but the form and mold in which its supporting rationale is to be cast, seems too large a price to pay, particularly when other and more direct courses, such as a motion for rehearing, are at hand to achieve all that can be hoped for.
Even more than other appellate courts, this court has welcomed the assistance *696of the SEC as an amicus curiae; in some matters indeed, such as allowances to counsel, it has deferred extensively to the Commission’s conclusions. Scribner & Miller v. Conway, 2 Cir., 238 F.2d 905; Finn v. Childs Co., 2 Cir., 181 F.2d 431. So far as I can recall, however, we have never taken the initiative in appealing to the Commission, but have gladly accepted its aid when furnished either in the trial court or by brief or argument in this court. There is good ground for our restraint; for the course followed allows the Commission and the parties to frame their issues and to meet them where the facts and the law can best be developed and where any gaps in the material can be closed. The advantage of this presentation can be perceived here if we turn to a consideration of the nature of the appeal we should need to make. If we endeavored to enter upon a full explanation of premises and doubts, we would undoubtedly disagree as to what we should say and confuse by what we might ultimately venture. If we did not do this, what could we ask other than whether or not the Commission considered its own regulation valid ? And the mere suggestion points the way to the difference between a case such as that of allowance to counsel acting under the Commission’s observation and this, which deals with statutory purpose, where we have already spoken and where the Commission’s changing personnel cannot have either the same responsibility or the same expertise as in the other.
There is another important consideration, namely, that this is a situation where the Commission should have freedom of choice as to the time and character of the advice it should tender to the judiciary. Judging by our observations from experience, there is little doubt but that the Commission has had this very case under careful consideration from the beginning and will seek to intervene when and as and to the extent it deems necessary. It may well be embarrassed to receive requests from appellate courts around the country to give advice which for reasons the inquiring courts may not know or appreciate is not feasible or sound policy under the circumstances. In former cases involving these “short-swing” profits we have expressed some regret that Commission advice has-not been tendered us or the trial court,. Blau v. Mission Corp., 2 Cir., 212 F.2d 77, 81, certiorari denied Mission Corp. v. Blau, 347 U.S. 1016, 74 S.Ct. 872, 98 L. Ed. 1138; Roberts v. Eaton, 2 Cir., 212: F.2d 82, 84, certiorari denied 348 U.S.. 827, 75 S.Ct. 44, 99 L.Ed. 652; we understand that even these quite mild suggestions were disturbing to the Commission, which, perhaps because of shortage of personnel or other good reasons unknown to us, was unable to act. At any rate we have not pursued even this minor lead; thus we sought no such help in the very important case of Magida v. Continental Can Co., 2 Cir., 231 F.2d 843, certiorari denied Continental Can Co. v. Magida, 351 U.S. 972, 76 S.Ct. 1031, 100 L.Ed. 1490.1 Hence even hadl the suggestion here been timely, I think; we should properly await the Commission’s own decision as to action, rather-than force it to possibly unpleasant, choices.
. In Stella v. Graham-Paige Motors Corp., 2 Cir., 232 F.2d 299, certiorari denied Graham-Paige Motors Corp. v. Stella, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52, we noted and followed its brief amicus curiae filed much earlier in tbe district court, as noted in 1952, Stella v. Graham-Paige Motors Corp., D.C.S.D.N.Y., 104 F.Supp. 957, 959.