(concurring) .
I concur in the judgment of reversal and in the portion of the Court’s opinion which holds that the activities performed by Iselin-Jefferson Co. in New York on behalf of Randolph Mills suffice to subject Randolph Mills to suit under New York law. However, I cannot join in the alternative ground of the opinion, namely, that if Randolph Mills were not sufficiently active in New York to subject it to suit in the New York courts, it may nevertheless be summoned before a federal court sitting in New York if it is doing enough in New York so that such an assertion of power over it would not violate due process. I put the Court’s alternative holding that way for, despite the references to a federal standard of corporate presence, I know of no such federal standard except the constitutional one. On this issue I find myself in agreement with the view that has been most fully developed by Judge Goodrich, on behalf of Judge Hastie and himself, Chief Judge Biggs disagreeing, in Partin v. Michaels Art Bronze Co., 3 Cir., 1953, 202 F.2d 541, and that is followed also in the First, Fifth and Seventh Circuits,1 Pulson v. American
*517Rolling Mill Co., 1 Cir., 1948, 170 F.2d 193; Lone Star Package Car Co. v. Baltimore & Ohio R. Co., 5 Cir., 1954, 212 F. 2d 147; Canvas Fabricators, Inc. v. William E. Hooper & Sons Co., 7 Cir., 1952, 199 F.2d 485, and Riverbank Laboratories v. Hardwood Products Corp., 7 Cir., 1955, 220 F.2d 465, reversed per curiam 1956, 350 U.S. 1003, 76 S.Ct. 648, 100 L.Ed. 866, as to which see Note, 67 Yale L.J. 1094, 1097-98, fns. 13 and 14. This is that, under the Federal statutes and Rules of Civil Procedure as they now stand, federal courts sitting in a state may not exercise jurisdiction over a foreign corporation unless the state has “provided for bringing the foreign corporation into its courts under the circumstances of the case presented,” 170 F.2d at page 194, save when Congress itself has made provision to that end, e.g., 15 U.S.C.A. § 22, see United States v. Scophony Corp. of America, 1948, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091.2
Discussion necessarily begins with the great cases of Erie R. R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S. Ct. 1464, 89 L.Ed. 2079, familiar though they be. The former tells us, 304 U.S. at page 78, 58 S.Ct. at page 822, that “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” The latter adds that this mandate is not confined to what lawyers would call “substance” rather than “procedure”; it also supplies the significant commentary that Erie “overruled a particular way of looking at law” wherein “federal courts deemed themselves free to ascertain what Reason, and therefore Law, required wholly independent of authoritatively declared State law * * * ” 326 U.S. at pages 101, 102, 65 S.Ct. at page 1466. The lesson of these decisions and others, as I understand it, is that on any matters having a substantial effect on the outcome of litigation, as distinguished from the ways of conducting judicial business, federal courts must look to the law of the state where they sit, save in fields, such as admiralty, see Levinson v. Deupree, 1953, 345 U.S. 648, 73 S.Ct. 914, 97 L. Ed. 1319, that are distinctively federal or where the Constitution,2 3 treaties, federal statutes, or rules having the force of statute show, either explicitly or implicitly, an intent that the federal courts are “to fashion federal law * * * ” Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 923, 1 L.Ed.2d 972. Whether a foreign corporation has taken such action in a state as to make it subject to suit there is not a mere mat*518ter of judicial administration; if anything is “outcome determinative,” that is, and none the less so because the corporation might be subject to suit in a federal court in its own state. Nevertheless, in my view, this matter falls in the zone where, subject to the due process guarantee of the Fifth Amendment, Congress may validly direct, or authorize the Supreme Court to direct, the federal courts to fashion their own standards even in diversity of citizenship cases, as was held with respect to other issues in Sampson v. Channell, 1 Cir., 1940, 110 F.2d 754, 756-757, 128 A.L.R. 394, certiorari denied, 1940, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415; D’Onofrio Construction Company v. Recon Company, 1 Cir., 1958, 255 F.2d 904, 909, 910; Iovino v. Waterson, 2 Cir., 1959, 274 F.2d 41, 48, certiorari denied 1960, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867, and Monarch Ins. Co. of Ohio v. Spach, 5 Cir., 1960, 281 F.2d 401. Valid inferences from Article III and from the “necessary and proper” clause of Article I, § 8, support action by Congress or the rule-making power within this “twilight zone,” 110 F.2d at pages 756-757, in derogation of state law, even when federal jurisdiction rests solely on diversity of citizenship. -The question is whether such a direction has been given as to the subject here at issue; I think it has not been.
There is a federal statute, 28 U.S.C. § 1391(c), which might be claimed to give precisely such a direction. That section, enacted as part of the 1948 revision of the Judicial Code, says that “a corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business.” The argument would be that it is for the federal courts to determine what Congress meant by “is doing business” in § 1391(c), and that hence a federal court sitting in the Southern District of New York can bring a foreign corporation before it on the basis of a quantum of activity that the New York courts would find insufficient under state statutes. However, the second step does not follow save by a literalism that would give § 1391(c) an effect never contemplated. Section 1391(c) was directed, not to the problem of jurisdiction over the person of a foreign corporation, but to venue, as its presence in a section of the Code entitled “Venue generally” indicates. Its purpose was to overcome the rule that, in the absence of “waiver,” see Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, the venue statute in effect since 1887 permitted a corporation to be sued only in the district where it had its principal office (or, in diversity litigation, at the plaintiff’s residence). See Moore, Commentary on the Judicial Code, pp. 193-94. This rule, announced as early as Shaw v. Quincy Mining Co., 1892, 145 U.S. 444, 450, 12 S.Ct. 935, 36 L.Ed. 768, and reaffirmed as late as Suttle v. Reich Bros. Co., 1948, 333 U.S. 163, 68 S.Ct. 587, 92 L.Ed. 614, had nothing to do with the court’s jurisdiction over the person of the corporation; it was simply a rule of venue, as vividly illustrated by Galveston, Harrisburg & San Antonio Railway Co. v. Gonzales, 1894, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248, where it was successfully invoked by a domestic corporation doing a large business but having its corporate office in another district of the state. The subject is well developed in a Note, Federal and State Precedents on Doing Business: Jurisdiction over Foreign Corporations under Erie, 67 Yale L.J. 1094, 1099, fn. 18 (1958), which points out, inter alia, that to apply the “doing business” test of § 1391(c) to jurisdiction over the defendant might restrict federal jurisdiction, as in a case where a plaintiff, in the district of his own residence, sues a foreign corporation on a claim arising out of acts by the corporation sufficient to meet state and due process jurisdiction requirements but insufficient to constitute “doing business” for venue purposes and the Neirbo rule is inapplicable. Cf. Olberding v. Illinois *519Central R. R., 1953, 346 U.S. 338, 74 Ct. 83, 98 L.Ed. 39. S.
Earlier versions of the statute give no support to a contrary view. Section 11 of the Judiciary Act of 1789, 1 Stat. 79, continued in Rev.Stat. § 739 provided that no civil suit shall be brought against any inhabitant of the United States “in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. * * * ” Early decisions at circuit held that under this a corporation could never be sued in the Federal courts of a state other than that of its incorporation, since it could neither be an inhabitant of nor be found in a state other than its own, Day v. Newark India-Rubber Manufacturing Co., C.C.S.D.N.Y. 1850, 7 Fed.Cas. p. 245, No. 3,685; Pomeroy v. New York & New Haven R. R., C.C.S.D.N.Y.1857, 19 Fed.Cas. p. 965, No. 11,261. When these were overruled in Ex parte Schollenberger, 1878, 96 U.S. 369, 24 L.Ed. 853, it was not on the basis that federal courts could “find” foreign corporations in Pennsylvania although the state courts would not, but rather because a Pennsylvania statute had required the corporations to consent to be “found” there “by any court of this Commonwealth having jurisdiction of the subject matter” and “While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; * * * ” See the discussion by Mr. Justice Frankfurter in Neirbo Co. v. Bethlehem Shipbuilding Corp., supra, 308 U.S. at pages 169 if, 60 S.Ct. at page 155. In 1887 the “found” language disappeared; from then until 1948, the venue statute, Act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act of August 13, 1888, c. 866, 25 Stat. 433; Judicial Code of 1911, § 51; and former 28 U.S.C. § 112, required that suit be brought in the district where the defendant was an “inhabitant” save that in diversity cases suit could be brought at the “residence” of either the plaintiff or the defendant. Where venue had to be predicated on the residence of a corporation the requirement was that the chief corporate office be in the district, subject only to the Neirbo waiver rule; the statute neither established nor authorized the federal courts to establish standards of corporate presence, a subject irrelevant to the statutory venue test.
Neither do I find anything in the Federal Rules of Civil Procedure to indicate an intention that the federal courts should fashion their own standards of what activities by a foreign corporation subject it to the jurisdiction of a particular district court. Rule 4(d) (3), 28 U.S.C. establishes a manner in which service may be made “Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name,” in addition to the provision of Rule 4(d) (7) that service may likewise be made “in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” However, as said in Hart & Wechsler, The Federal Courts and the Federal System, p. 959, “Rule 4(d) (3) of the Rules of Civil Procedure tells how service of process is to be made upon a corporation which is subject to service; but does not tell when the corporation is so subject,” as the majority seem to agree. The only other Federal Rule in this general area is Fed.R.Civ.Proc. 17(b), relating to “Capacity to Sue or Be Sued.” After referring the capacity of an individual not acting in a representative capacity to the law of his domicile and that of a corporation to the law of its place of organization, this directs that, with two further exceptions, “In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held.” Granting that the problem before us is jurisdiction over the person and not capacity, nevertheless Rule 17(b) has some relevance since the reference to the law of the state where the district court sits shows that *520the framers of the Rules did not think it necessary that there be nationwide uniformity as to who may sue or be sued in the federal courts.
The only other ground for finding that a federal court may establish a standard as to the circumstances when a foreign corporation may - be sued, less rigorous than that set by the state where the court sits, would be if a practice of considering this question as one of federal law had become so well established that it must be deemed to be sanctioned by the Judicial Code or the Federal Rules, even though both are silent on the subject. I cannot find a sufficient basis for the premise.
In the beginning — and exploration of this issue necessarily takes us there — it was thought, to a considerable extent under the influence of Chief Justice Taney’s dictum in Bank of Augusta v. Earle, 1839, 13 Pet. 519, 588, 38 U.S. 519, 588, 10 L.Ed. 274, that a corporation could never be sued outside the state of its incorporation. See Henderson, The Position of Foreign Corporations in American Constitutional Law, pp. 77-80. Then came state statutes providing that foreign corporations transacting business within a state shall be “deemed” to hold franchises therein. In Warren Manufacturing Co. v. Etna Insurance Co., C.C. D.Conn.1837, 29 Fed.Cas. p. 294, No. 17,206, Mr. Justice Thompson said he would uphold such a statute, Henderson, op. cit., pp. 80-81. This theory, that a state might exercise jurisdiction over foreign corporations because of an implied consent to a state statute providing for service of process as a condition to doing business, was adopted in LaFayette Insurance Co. v. French, 1855, 18 How. 404, 59 U.S. 404, 15 L.Ed. 451. If the amenability of foreign corporations to suit had continued to be based solely on this theory, it could hardly even be contended that the federal courts could interpret the conditions laid down by the state as covering more ground than did the state itself. How long this did continue is debatable; certainly the consent theory still seems to underlie Louisville & Nashville R. Co. v. Chatters, 1929, 279 U.S. 320, 325-326, 49 S.Ct. 329, 73 L.Ed. 711, although the opinion speaks also of “presence.”
Most of the early Supreme Court cases on this subject involved the validity of judgments against foreign corporations by state courts, either directly when reviewed on writ of error or collaterally when sued upon in another state or federal court. The questions in such cases were constitutional questions — of due process or full faith and credit. Although, when the Supreme Court was confronted with the issue of a foreign corporation’s amenability to suit in a federal court, the Court cited the same decisions and applied the same tests that it had used in cases involving the validity of state judgments, neither Philadelphia & Reading Ry. Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710, nor the three other rather similar opinions of Mr. Justice Brandeis cited in 2 Moore, Federal Practice (2d ed. 1948), p. 969, fn. 1, to which the majority refer, signify to me that the Court thought it was creating a corpus of federal law as to the basis on which foreign corporations might be brought before the district courts. All four cases held the corporation not subject to suit in the federal court; there was nothing to show that the state statutes were not intended to go as far as the Fourteenth Amendment was then thought to permit; and the discussion of “presence” seems to have been directed to marking the constitutional limits of state action rather than to setting up a distinctive standard applicable in the federal courts regardless of state law. This interpretation is strongly indicated by the fact that two of the decisions, Rosenberg Bros. & Co., Inc. v. Curtis Brown Co., 1923, 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 and James Dickinson Farm Mortgage Co. v. Harry, 1927, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569, were cases removed from the state courts in which, on any view, the questions were the applicability of the state stat*521utes under which service had been effected and the constitutionality of the statutes as so applied,' see Bomze v. Nardis Sportswear, Inc., 2 Cir., 1948, 165 F.2d 33, 35. More recent cases, such as International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Perkins v. Benguet Consolidated Mining Co., 1952, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485; McGee v. International Life Ins. Co., 1957, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, and Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, all involved the validity of state judgments against foreign corporations;’ the issue was, as stated in the Perkins case, 342 U.S. at page 447, 72 S.Ct. at page 419, “whether, as a matter of federal due process, the business done” in the state warranted the state’s exercise of power.
Indeed, as I read Professor Moore, he does not contend that any of the authorities relied upon by the majority support his statement, “Whether a foreign corporation or other business entity is doing business in a state is a matter of general, not local, law,” 2 Moore, Federal Practice (2d ed. 1948), 969-70, with the solitary exception of Barrow S. S. Co. v. Kane, 1898, 170 U.S. 100, 18 S.Ct. 526, 42 L.Ed. 964, holding that a foreign corporation, admittedly doing a substantial business in New York, was subject to suit in the federal courts by a non-resident whose suit in the state courts would have been barred by a New York “door-closing” statute. Mr. Justice Gray’s opinion in that ease is a confusing one, at least to me; I find it hard to tell whether the language as to the inability of the states to impair federal jurisdiction, 170 U.S. at pages 111 and 112-113, 18 S.Ct. at pages 530-531, was addressed to the status of the plaintiff, of the defendant, or of both, or to reconcile the one such passage that does seem clearly to relate to the corporate defendant, 170 U.S. at page 110, 18 S.Ct. at page 529; with the discussion before and after. Be that as it may, I concede that, analytically, the decision lends support to Professor Moore’s statement — on a basis developed, in another connection, by Henderson more than forty years ago, pp. 89-90. However, the decision seems to have had neither predecessors nor progeny. Thirty years later, in Louisville & Nashville R.Co. v. Chatters, supra, 279 U.S. at pages; 325-328, 49 S.Ct.. at pages 330-331, 332, dealing with a suit begun in the federal court against a railway engaged generally in business within the district, Mr. Justice Stone, writing for a unanimous Court which included Mr. Justice Brandéis, proceeded on the assumption that the railway could be sued only within the terms of its “consent,” and went through an elaborate analysis to demonstrate that the consent included a suit “arising out of an obligation incurred within the state although the breach occurred without.”; if Barrow S. S. Co. v. Kane had established that “presence” was enough for federal jurisdiction regardless of state statutes, all this was supererogation. Moreover, insofar as Barrow S. S. Co. v. Kane held that state “door-closing” statutes need not be heeded by a federal court in a diversity of citizenship case, it is contrary to what has been said in Angel v. Bullington, 1947, 330 U.S. 183, 192, 67 S.Ct. 657, 91 L.Ed. 832 and held in Woods v. Interstate Realty. Co., 1949, 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524, see Partin v. Michaels Art Bronze Co., supra, 202 F.2d at pages 542-543, footnote 2. After all this it seems to me too slender a reed on which to rest a departure from the command of Erie R. R. v. Tompkins and Guaranty Trust Co. of New York v. York, in the absence of any indication of Congressional purpose to that end.
The issue between my brothers and me would be more clearly posed if New York had a statute stating expressly that a foreign corporation, which engages only in isolated transactions in New York, is not subject even to an action on a claim arising out of those transactions, although International Shoe Co. v. State *522of Washington, supra, presumably would permit New York to make it so, or that a .foreign corporation engaging generally in business in New York is not subject to ••suit on claims arising out of non-New York business, although Perkins v. Ben:guet Consolidated Mining Co., supra, allows New York to subject it to such suit. Statutes of this sort would represent legitimate exercise of state policy,4 and would be constitutional, as another phase of Perkins v. Benguet Consolidated Mining Co., supra, held. I would find it difficult to reconcile a view that the United States District Court may nevertheless hold the corporation “present,” and therefore subject to its process, in cases thus excluded by New York, with the decisions requiring federal courts, in diversity cases, to apply state statutes closing the courts against plaintiffs, Angel v. Bullington, supra, and Woods v. Interstate Realty Co., supra. For I see no valid distinction between a state statute that a plaintiff may not come through the door and a mandate that a defendant may not be hauled through it.5 Yet, if a federal court sitting in New York would have to respect such a New York statute, in the absence of a contrary federal legislative direction — a direction which, it should be emphasized, I think within the power of Congress or the rule-making authority to give, even in diversity cases —Erie and Guaranty Trust Co., seem to me to teach that the federal courts sitting in a state must likewise respect state decisions also the embodiment of state policy as to what activity will subject a foreign corporation to suit.
. The four cases cited in fn. 6 of the Court’s opinion do not establish any position by this Circuit. In Jacobowitz v. Thomson, 2 Cir., 1944, 141 F.2d 72, the federal rule that prevailed was the statute, now 28 U.S.C. § 959, held in Eddy v. Lafayette, 1896, 163 U.S. 456, 464, 16 S.Ct. 1082, 1085, 41 L.Ed. 225, to be intended “to place receivers upon the same plane with railroad companies, both as respects their liability to he sued for acts done while operating a railroad, and *517as respects the mode of service.”; on the issue whether the railway itself could have been sued in New York, the opinion relies on New York as well as federal decisions. In Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 175 F.2d 184, certiorari denied 1949, 338 U.S. 867, 70 S.Ct. 141, 94 L.Ed. 531, Judge Learned Hand cites and relies on his opinion in Hutchinson v. Chase & Gilbert, Inc., 2 Cir., 1930, 45 F.2d 139, which, in turn, rests in no small part on Judge Cardozo’s opinion in Tauza v. Susquehanna Coal Co., 1917, 220 N.Y. 259, 115 N.E. 915. In none of these cases was there any indication that the New York courts would have reached a different result.
. This opinion is to be read throughout as subject to the exception stated in the text.
. An inference derived from the Constitution underlay Byrd v. Blue Ridge Rural Electrical Cooperative, Inc., 1958, 356 U. S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, on which the Court so heavily relies. The sentence as to the federal judicial system quoted by the majority was followed, and explained, by the statement, “An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence — • if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.” Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857, likewise rested on the Seventh Amendment, as its quotation from Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 13, 14, 19 S.Ct. 580, 43 L.Ed. 873 makes plain.
. The position of New York City as a commercial and management center may give New York a very real interest in encouraging foreign corporations to come into the state by limiting their amenability to suit in New York.
A different view might be taken if it were clear that the sole purpose of the limiting statute was to protect the state courts from involvement in cases of no interest to the state and its taxpayers. Cf. Douglas v. New York, New Haven & Hartford R. Co., 1929, 279 U.S. 377, 387, 49 S.Ct. 355, 73 L.Ed. 747; see Hill, The Erie Doctrine and the Constitution, 53 N. W.U.L.Rev. 541, 569 (1958).
. I likewise see no basis for the assumption, which seems implicit in the position of the majority, that federal policy is to extend jurisdiction over foreign corporations as far as due process permits.