(concurring):
Assuredly I join in Judge McGowan’s excellent opinion. Pragmatic in the sense that it represents the view of a jurist skilled in law and state affairs, Judge McGowan’s treatment does not ignore the background of the problem here posed nor does it fail to take account of the allegations of Consumers’ amended complaint with its appended exhibits and the agreed statement of facts submitted in the District Court. I feel impelled to voice additional comment only in view of the approach offered in dissent by our respected colleague.
At the outset, Judge Leventhal correctly has stated that this case “must be decided as if the complaint had never contained a claim under the antitrust laws”. The original complaint had indeed set up a purported antitrust predicate, but Consumers on the record caused that count to be dismissed “with prejudice”.
Next, even were we to assume that the District Court had jurisdiction under the Federal Declaratory Judgments Act, it was “under no compulsion to exercise that jurisdiction”, Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed.2d 1620 (1942), citing Aetna Casualty Co. v. Quarles, 92 F.2d 321 (4 C.A. 1937) with Judge Parker’s discussion at 325 which here we might profitably recall. For present purposes, we may pass that point for even though the antitrust claim had been dismissed, the District Judge declared that “the Executive is not preempted and may enter into agreements or diplomatic arrangements with private foreign steel concerns . . .”. Consumers Union of U. S., Inc. v. Rogers, 352 F.Supp. 1319, 1323 (DDC1973). (Emphasis added.) The District Judge explained that the Acts, such as those cited in the dissent, “cannot be read as a congressional direction to the President prohibiting him from negotiating in any manner with private foreign companies as to commercial matters”. Id.
So we turn to the area urged in the dissent in rejection of the District Court’s declaration and in the assertion that congressional authority is “plenary”. We may join issue here.
I.
Our dissenting colleague regards the arrangements with the foreign private concerns as “solemn negotiated bilateral understandings”. The record shows that the private producers themselves limited their own exports. Our colleague sees the Executive in position to call upon non judicial exercises of power if the foreign producers violate the arrangements. He suggests, e. g., that there *84could be “possibly a call to reduce assistance programs” to the country of a foreign producer. He ventures “Suppose the President directed customs officials to deny entry to United States ports of commodities violating the undertaking.” None of these things happened.
Rather, the record shows, that during the years 1957 through 1968 there developed an unprecedented increase in steel imports, particularly from producers in Japan and European countries. Import tonnages of steel mill products in 1957 totaled 1,155,000 net tons which by 1968 had become 17,960,000 net tons. Bills were introduced in Congress directed toward the imposition of restraints and controls of steel imports, with the result that worriment overtook our own officials as well as representatives of foreign producers. A Japanese economic mission sent its chairman in March 1968 to discuss problems of the steel trade with the particular objective of avoidance of congressionally imposed limitations upon the entry of Japanese steel.
It is not to be doubted that importantly placed officials in our Executive departments were fully aware of our tariff laws and regulations and of the legislative restrictions upon Presidential action.
By May 1968 Department of State officials and European steel industry representatives had joined in discussions which went forward through June and July 1968. Perhaps it is not too much to “suppose” (our colleague’s word) that President Johnson said “Why don’t you get those people in here and see if you can reason together with them?” — or words to that effect.
Before the undertakings by and among the foreign steel producing companies were activated, the Department of State sought and obtained the views of members of Congress, representatives of domestic steel producing interests, unions involved in the steel industry and others.
II.
So successful were the original three-year programs, so happily without incident, that an extension for an additional three years went forward only to be challenged in this action.
In this great nation with its complex economy and its varying conflicts requiring judicious accommodation, flexibility in achieving desirable results is a constant imperative. Fairly we may say that here there had been no Presidential action, legislative in character, undercutting the congressional prerogatives deemed by the dissent to be “plenary”. If it be a penchant of our press to coin applicable expressions, “jawboning” could here be taken as apt and that is what happened, nothing else.1
Collaterally and obviously not here controlling, we might well today applaud exhortations by our officials to companies producing oil in the Middle East to reduce their charges and to increase their exports of oil to our power starved economy. We might take it to be desirable that coffee producing companies in nations such as Brazil and Colombia be induced by our officials not to exploit our dependence upon their product by the imposition of unreasonable and exorbitant charges for their coffee exports. Surely no formal trade agreement should be required to persuade companies to export to us the bauxite so essential to the continued maintenance of our aluminum industry.
Judge McGowan, it is submitted, succinctly and authoritatively has concluded that “the State Department defendants were not precluded from following the course they did by anything in the Constitution or Title 19 of the U.S.Code”.
. Cf. United States v. Guy W. Capps, Inc., 348 U.S. 296, at 297, 75 S.Ct. 326, 99 L.Ed. 329 (1955) refusing to pass upon the ruling by the court of appeals (204 F.2d at 658) that an international agreement to limit Canadian exports was void “as not authorized by Congress and as contravening the provision for procedure through the Tariff Commission”, id. 348 U.S. at 301, 75 S.Ct. at 329. See Appendix, id. at 305, 75 S.Ct. 326.