dissenting.
My analysis of the elusive issue involved in these cases leads me to different conclusions from those reached by the Court and to agreement with the result reached by the Court of Appeals on the facts of these cases.
We are presented here with the problems of resolving au apparent conflict between the consolidated tax return provisions of the Internal Revenue Code,1 which permit an affiliated group of corporations, in this instance having some activities within and some without the Federal Power Commission’s jurisdiction, to be treated as a “business entity” for tax purposes,2 and the Natural Gas Act which imposes on the Commission the duty of observing “the fundamental rate making principle [that] ... requires a separation between regulated and unregulated costs and revenues.” Cities Service Gas Co., 30 F. P. C. 158, 162. The Court holds that the FPC may resolve the apparent dilemma by working only with “the single consolidated tax liability” and determining by allocation what portion should be attributed to United for rate-making purposes. By filing a consolidated return the members of the affiliated group are said “ta.mingle profits *249and losses of both regulated and unregulated concerns” and thus create the necessity for allocation. The only serious problem the Court sees is the resolution of the question “when and to what extent the tax savings flowing from the filing of a consolidated return are to be shared by the regulated company.” And the Court attempts to sidestep sharp analysis of that problem by resorting to the principle that, in ratemaking, the end in effect justifies the means.3
As will.be devéloped more fully below, I think that the Court’s resolution of the jurisdictional issue, while possessing a certain surface plausibility, mistakes the operation of the tax laws and permits th'e Commission to place regulatory pressure on entities and business decisions wholly outside its jurisdiction under the Natural Gas Act. I think also that the Commission’s formula *250cannot be upheld even under the Court’s jurisdictional analysis. The formula indefensibly undercuts the policy of the tax laws, and thus cannot be considered a means of reaching “just and reasonable” rates. Cf. El Paso Natural Gas Co. v. FPC, 281 F. 2d 567.
I-
The Court’s “single consolidated tax liability” approach ignores the fact that what is consolidated is corporate taxable incomes rather than the underlying revenues and deductions. Thus what has happened in this case is not the imposition of a single tax liability on the activities, as a whole, óf the affiliated corporate group, but the reduction of the sum of separate 52% corporate tax liabilities by the setoff of tax losses against taxable income. Certainly there can be no contention that United would be entitled to anything other than a 52% of taxable income tax expense for ratemaking purposes absent tax losses in the consolidated group.4 The only question that properly arises on this record is whether the Commission could consider any setoff to have been made against United’s tax liability for ratemaking purposes when nonjurisdictional activities could have taken full advantage of the setoffs-belonging to the group and the group desired to allocate them to those activities.5
*251The “tax’losses” belonging to the group arose almost exclusively from the . excess of depletion allowances over •' revenues in the accounts ofthe nonjurisdictional activities of Union and Overseas. . Such allowances belonged to Union and Overseas and those corporations were entitled, to their exclusive use. By agreeing to the consolidated return6 Union and Overseas agreed to deliver to the group, in any taxable 7/ear, whatever deductions they themselves could not then utilize in their own re- . turns. The question how to allocate the benefit of those *252deductions among the members of the group would seem to be one for the group rather than the Commission when, as here, they do not arise from jurisdictional activities and can be used by group members to offset other nonjurisdictional gains. The courts have allowed good-faith business decisions to control such allocations for the vital purpose of determining which corporations shall pay the tax. See Case v. New York Central R. Co., 15 N. Y. 2d 150, 204 N. E. 2d 643. And the tax Commissioner would permit the group to allocate for earnings and profits purposes in precisely the manner the group has chosen here.7 Although these decisions cannot control for ratemaking purposes, they do make it clear that the Commission’s assertion of jurisdiction to make an allocation amounts to an order that certain nonjurisdictional assets be delivered up to jurisdictional use since there is no other compulsion for such an allocation. The Court asserts that “[o]ne could as well argue that for ratemak-ing purposes the company subject to federal regulation should have the first benefit of the tax saving.” But no authority or reason is given in support of this assertion, and, in my opinion, none can be found. The Commission has no authority to control the disposition of nonjuris-dictional assets or the revenues or losses arising therefrom.
A parallel example will make even clearer the jurisdictional violation arising from the Commission’s action here. If Union or Overseas had found itself with an excess quantity of steel pipe useful to all members of the group and had to negotiate its sale at a discount, one could hardly “as well argue that for ratemaking purposes” United should be credited with the discount purchase when the pipe had been sold to Gas Corporation and United had been forced to purchase pipe- on the *253market.8 And it could not be asserted that the Commission would have authority to order the transfer of the discount pipe to United.9
.The far-reaching nonjurisdictional impact of the Commission’s ruling gives further evidence that its action was one which Congress could not have contemplated and would not have condoned. As the dissenting Commissioners pointed out in the Cities Service Gas Co. proceeding, 30 F. P. C., at 175, the Commission has made-jurisdictional rates turn on the corporate form assumed by nonjurisdictional activities. If, for example, the group had -separately incorporated its nonjurisdictional operations, they would have shown taxable income in filing the consolidated return and no ratemaking allocation would be forthcoming. Similarly, since the Commission regulations themselves require separation of jurisdictional and nonjurisdictional operations within a single corporation, all the affiliates could merge into United and since nonjurisdictional activities would show a net taxable income, United would receive a 52% tax 'expense *254for ratemaking purposes.10 The congressional purpose in allowing consolidated returns was to eliminate exactly this kind of dependence on corporate form and leave corporations free to continue business in whatever corporate form best suited them. See, e. g., S. Rep. No. 960, 70th Cong., 1st Sess., p.', 14. The congressional purpose in passing the Natural Gas Act was to prevent exploitation of the natural gas consumer. It was not to prevent natural gas companies from fully developing their non-, jurisdictional opportunities, nor to control in any way the form of those activities, nor to appropriate non jurisdictional assets for the benefit of consumers. Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 593-594.
The Court focuses its analysis on a case, not presented here, in which there are net non jurisdictional losses and the consolidated tax liability is thus less than 52% of the taxable income of the jurisdictional activity. In such a case it is clear that non jurisdictional assets are being used for tax purposes by the jurisdictional activity and it would blink reality not to recognize this use for ratemaking purposes, just as it would be wholly improper not to recognize the lower cost of discount pipe when a jurisdictional activity actually purchased it from a non-jurisdictional affiliate. When the group’s election to file consolidated returns, or its intercorporate arrangements, require that non jurisdictional deductions be utilized to set off jurisdictional income then, and only then, can there, in my opinion, be allocation.11 That, however, is *255not the situation here where nonjurisdictional income was fully capable of absorbing all nonjurisdictional losses.
II.
■ In a well-reasoned opinion in El Paso Natural Gas Co. v. FPC, 281 F. 2d 567, the court held that the Commission properly took account of depletion allowances arising from jurisdictional activities in fixing rates. The gas company there had argued that since Congress intended by the allowance to encourage exploration its benefit could not be passed on to the ratepayers. The court rejected that argument because it concluded that the proper place to reflect the congressional policy was in the ultimate rate of return allowed the company. It made explicit, however, that the Commission could not fail to take account of the congressional policy.
The Court’s opinion departs from that sound analysis by sustaining a formula which allocates the entire “tax saving” to the “regulated” corporations and thus fails to take account of the congressional desire to benefit the loss corporations by allowing the profit corporations to retain earnings which could be passed on to them. The consolidated return is the horizontal equivalent of the vertical loss carry-forward and carryback provisions of the Internal Revenue Code. • It allows the “business unit” ■ to recoup from the Government some of the loss which has been sustained and, in the words of Mr. Justice Jackson, “it is probable that the intention . . . was to provide salvage for the loser . , .'.” Western Pacific Railroad Case, 345 U. S. 247, 277 (dissenting opinion). Any rate formula which does not provide a means of allocating benefit to the loss corporation cannot then be' “just and reasonable.” And if the group as a whole does not benefit from consolidation because the setoff advantages of losses are absorbed by the “regulated” corporations and passed on to the ratepayers, it is most *256uplikely that the loss corporations will achieve the benefit Congress intended them to have.12
The Court recognizes the adverse effect on the benefits flowing to the loss corporations, but contends there is no frustration of the tax laws because the losses “remain with the system, readily available to reduce the taxes of the profitable affiliates . . . But this hypothetical “availability” is meaningless for the “instant cash” produced by the losses is passed on to the ratepayers rather than, as the tax laws intend, to the loss corporations. The fact that the' group’s tax payment is lower will not satisfy the intent behind the revenue provisions which was not to reduce government collections but to increase resources available to the business unit.13
m.
To summarize, I think, first, that no allocation whatever could be reqtiired by the Commission in these cases because nonjurisdictional income was more than sufficient to absorb all nonjurisdictional losses , and there was no showing that jurisdictional activities would actually benefit from nonjurisdictional losses. To permit the FPC in such circumstances to allocate would in effect *257extend the Commission’s jurisdiction to areas not encompassed within the authority given the Commission by the Natural Gas Act. While the basic purpose of the Act is, of course ,.⅜⅛ protect ratepayers, Congress has not carried that protection so far as to allow them to -share in the benefits of the nonjurisdictionál activities of a jurisdictional corporation or those of its corporate affiliates — a result which today’s decision permits the Commission to achieve.
Second, in instances where the Commission may allocate, it seems to me that any allocation formula that does not take account of the underlying policy of the tax statute would “plainly [contravene] the statutory scheme of regulation.” Colorado Interstate Gas Co. v. FPC, supra, at 589.
Third, while, I thus agree with the Court of Appeals that United, on this record, is entitled to have its rates calculated on the premise of a full 52% tax liability, I cannot subscribe to such intimations as there 'may be in the opinion relied upon by that court that the Commission may never allocate in'a consolidated tax situation.
I would affirm the judgment of the Court of Appeals.14
26 U. S. C. §§ 1501-1506.
“The permission to file consolidated returns by affiliated corporations merely recognizes the business entity as distinguished from the legal corporate entity of the business enterprise.” S. Rep. No. 960, 70th Cong., 1st Sess., p. 14. ,.
The Court’s opinion seizes on the language of FPC v. Hope Natural Gas Co., 320 U. S. 591, 602,, for the proposition that judicial inquiry must be at an end when it is determined that a rate order “cannot be said to be unjust and unreasonable.” But the problem before the Court in that case was an entirely different one. There it was argued that the Court was obligated to delve into the details of an initial ratemaking in order to determine whether certain rates were reasonable. The Court held that in an' initial rate-making the essential question was only whether the return actually allowed permitted the company'to sustain itself in the market. The Court noted that it could not become involved in questions of “fair value” because “the value of the going enterprise depends on earnings under whatever rates may be anticipated.” Id., at 601. Nothing in Hope Natural Gas suggests that courts are powerless to review a particular formula to determine whether it is based on rational criteria. A return which, is “just and reasonable” must reflect underlying • congressional policies. Thus courts have not hesitated to review the underlying rationales of Commission decisions while giving due deference to the Commission’s discretion. See, e. g., Tennessee Gas Transmission Co. v. FPC, 293 F. 2d 761; United Gas Imp. Co. v. FPC, 290 F. 2d 133; Detroit v. FPC, 97 U. S. App. D. C. 260, 230 F. 2d 810.
Thus despite the Court’s “single consolidated tax liability” phraseology,' I am certain that the Court does not mean to imply that the Commission may allocate by any criterion other than taxable incomes. The Court cannot mean to suggest that, for example, the Commission is empowered to allocate by gross revenues and thus consider special deductions belonging to nonjurisdictional activities as allocable for ratemaking purposes when the nonjurisdictional activity is fully capable of using them.
In determining what it considered to be the properly allocated percentage of “tax saving” for ratemaking purposes the Commission utilized a five-year average (1957-1961) to eliminate the effects of short-term fluctuation.. During that period, the total tax losses of *251Union and Overseas were $3,893,980. The total taxable income of Gas Corporation; all of which was nonjurisdictional, was $9,024,170. Moreover, 56% of United’s taxable income of $105,290,983 was non-jurisdictional, Thus even in the two years, 1960 and 1961, when the tax losses of Union arid Overseas exceeded the taxable. income of Gas Corporation, the group’s nonjurisdictional taxable income , was more than sufficient to offset all tax losses.
The Court notes the observation, made by the FPC in its brief, p. 26, that United reflected a “tax saving” on its books. This statement is somewhat misleading since .it is directed to the aHoda- - tion made for earnings and profits tax purposes under 26 U. S. C. § 1552. (a)(1) and that allocation bears no necessary relation to the . actual allocation of liability for corporate purposes. Exhibit 14-1 reveals that, on the. basis of. allocated liability for corporate purposes, United had an average effective tax rate of 51.749% for the test years.
Moreover;- the allocation of setoffs in the 1957-1961 period has no direct relevance to the issue in this case for the Commission was not engaged in analyzing rates for that period. The rates under scrutiny were those United proposed to charge in the future. If the Commission had found that United actually intended to allocate, setoffs to its jurisdictional operation for corporate purposes while attempting to take a full 52% tax expense deduction for ratemaking purposes, the Commission might well have been justified in recognizing the setoffs for ratemaking purposes to the extent- .that United actually utilized them. On this reeord, it is clear that the Commission did not make any such finding.
26 U. S. C. § 1501 requires that all of the affiliated corporations consent to the filing of the consolidated return.
Proposed Treas. Reg. § 1.1502-33 recently promulgated by the Commissioner of Internal Revenue makes this a permissible means *• of' allocation. 31 Fed. Reg. 16788-16789.
And this nonjurisdictional decision would seem outside the Commission's control even if it were influenced by the fact that United could benefit less from the lower price because the ratepayers would absorb the benefit. -Union and Overseas have no duty to act for the benefit of United’s ratepayers. And if United were to join in a group compact agreeing to this allocation of excess pipe with the proviso that the excess would be sold to. United in the absence of other needs, the decision would seem perfectly justifiable. United’s contingent benefit would be .more 'than it would have outside the compact, and since United has no right to compel the nonjuris-dictional corporations to deal with it, United would not have surrendered anything. See Case v. New York Central R. Co., 15 N. Y. 2d 150, 204 N. E. 2d 643.
It should be noted as well that this example makes clear that it is entirely normal rór United to be expected to pay for the acquisition of the asset, and thus some consideration should pass to Union and Overseas. This, point is further developed in Part II of this opinion.
Title 18 CFR § 154.63 (f) which deals with joint facilities requires allocation of expenses between jurisdictional and nonjuris-dietional activities.
This formulation is, of course, very similar in form to that-utilized by the Commission. The essential difference lies in the fact that the Commission substituted the concept of a “regulated corporation’’ for that of a jurisdictional activity. The regulated-unregulated division made by the Commission has no basis in the Natural Gas Act.
The Commission has argued that, the intended benefit can be disregarded in this case .because the loss corporations are in that category for tax purposes solely because" of depletion allowances and are actually profitable in economic terms. While this argument might be thought to1 have some force, it is not for us to decide that the depletion allowances Congress has authorized are-not real costs of. carrying" on the business.
The Commission, if not the Court, was aware of this problem. In its petition for certiorari, p. 10, n. 8, the Commission recognized that “[tjhere" may indeed be problems in the application of . a formula which may result in allocating the entire tax saving resulting from losses on unregulated activities to the regulated members of the consolidated group.” The Commission has not attempted to justify its formula to this Court.
Since, in my view, no allocation is permissible in the circumstances of these cases, as a matter of law, a remand to the FPC is unnecessary. Under the Court’s view, however, such a remand would appear to be the appropriate disposition. The Court’s “single consolidated tax liability” jurisdictional formulation is essentially the “fused mass” theory proposed by the Commission staff and rejected by the Commission for jurisdictional reasons. Cities Service Gas Co., 30 F. P. C. 158, 160. The Commission should at least be required to re-examine the matter under the Court’s jurisdictional premises. SEC v. Chenery Corp., 318 U. S. 80; Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 534. In any event, I cannot understand the Court’s remand to the Court of .Appeals, the Commission’s power to allocate and its allocation formula having alreadj' been upheld by this Court.