BankAmerica Corp. v. United States

Justice White, with whom Justice Brennan and Justice Marshall join,

dissenting.

The primary issue in this case is whether ¶ 4 of § 8 of the Clayton Act (the “competing corporations provision”), 15 U. S. C. §19, prohibits interlocking directorates between banks and nonbanks. The Court holds that it does not, thereby exempting this entire species of interlocks from any regulation whatsoever, even though such interlocks undis-putably may have serious anticompetitive consequences directly contrary to the policies of our antitrust laws. I am quite sure that Congress intended no such result, and I therefore dissent.

*141t — (

Subject to certain other exemptions not presently relevant, ¶4 of §8 prohibits interlocking directorates between two or more corporations engaged in whole or part in commerce, “other than banks, banking associations, trust companies, and common carriers . . . .” The question here is whether this “other than banks” exemption is applicable to interlocks where any single one of the interlocked corporations is a bank, as petitioners contend, or whether it applies only when all of the interlocked corporations are banks, as the Government asserts. Both sides argue, with straight faces, that the plain statutory language supports their respective constructions of §8. The Court, with an equally straight face, agrees with the petitioners and solemnly proclaims, ante, at 128, that the self-evident, unambiguous language of the statute requires the conclusion that § 8 does not prohibit bank-nonbank interlocking directorates. With deference, I must say that it escapes me how either the Court or the litigants can seriously maintain that the meaning of § 8 is unambiguous, or even that one side’s reading is significantly “more natural” than the other’s.

In my view, the literal wording is far from conclusive and should not be dispositive. Consider the following analogy: a statute states that “no person shall own two or more automobiles, other than Fords.” According to the Court, such a provision plainly would not prohibit a person from owning one Chevrolet and one Ford. Although such an interpretation is possible, it is equally plausible to interpret the “other than” clause as exempting only the ownership of two Fords from the reach of the statute. Similarly, ¶ 4 of § 8 can easily be read as exempting only an interlock between two banks. The naked statutory wording provides insufficient guidance as to Congress’ true intent. It is therefore necessary to consider the legislative history.

*142In considering the legislative materials, it is important to keep in mind the structure of § 8 and the changes that were made in this provision as it passed through each stage of the enactment process. The first three paragraphs of §8 proscribe a wide variety of bank-bank interlocks, that is, interlocks between two or more banks. The fourth paragraph bans interlocks between two or more competing corporations engaged in whole or part in commerce “other than” banks or common carriers. See 15 U. S. C. § 19.

As originally passed by the House, the competing corporations paragraph contained the “other than common carriers” proviso, but it did not provide any exemption for banks.1 After the House approved the bill, the legislation went to the Senate, which deleted the paragraphs relating to bank-bank interlocks, but kept the competing corporations provision in the same form passed by the House.2 Thus, as originally adopted by both the Senate and the House, the competing corporations provision did not contain the “other than banks” language upon which petitioners rely.

The House was unwilling to accept the Senate’s deletion of the provisions relating to bank-bank interlocks, so the matter went to a Conference Committee. The conferees agreed to reinclude the provisions banning bank-bank interlocks, with a few minor modifications. The conferees also inserted, for the first time, the “other than banks” proviso into the competing corporations provision.3 The Senate accepted this change without discussion, but, in the House, there was a *143brief but highly significant debate upon which both sides in the present case heavily rely.

The House controversy arose when Representative Mann raised a point of order alleging that the addition of the phrase “other than banks” violated the rule that conferees may not change text to which both Houses have agreed. Representative Mann argued that the addition of the new phrase drastically limited the scope of the competing corporations provision by excluding banks from its purview:

“[W]hen this bill was prepared it provided a prohibition against interlocking directorates of banks. The House passed it in that shape. The Senate passed it in that shape. But the House conferees, without authority and over and beyond any jurisdiction granted to them, have provided that banks shall no longer be controlled by this prohibition of interlocking directorates where banks are in competition.” 51 Cong. Rec. 16270 (1914).

Representative Webb, one of the conferees, and Representative Sherley then took the floor to defend the conference action. Representative Webb asserted that the addition of the “other than banks” language did not work a material or substantial change in the provision, because “without question . . . the third paragraph of Section 9 [the present ¶ 4 of §8] as the bill passed the House was never intended to apply to banks, because we had an express paragraph in Section 9 [the present first three paragraphs of § 8] which took care of interlocking directorates in banks.” Id., at 16271. He described how the Senate had deleted the House’s bank-bank provisions, and how the conferees had restored them. He continued:

“The conference did put in [the ‘other than banks’ proviso] in order to make perfectly clear what in my opinion is already clear; because in the preceding paragraph we had passed a section with reference to interlocking directorates of banks .... Now, it would be idiotic to say *144that we included also banks and banking associations in the paragraph referring to industrial corporations [the present ¶4 of §8]; and in order to make the paragraph perfectly plain, we inserted ‘other than banks and banks [sic] associations’ and common carriers, which had no effect upon the meaning of that section.” Ibid, (emphasis added).

Representative Sherley concurred in Representative Webb’s assessment. Id., at 16272.4

Representative Mann was not satisfied by this explanation. He noted that Representatives Webb and Sherley had conceded that the conferees could not make substantive changes in the provision. He remarked, however, that they did not appreciate the import of the original version of the competing corporations paragraph, even though “they should know more about it than I do.” Ibid. Then, in the only express discussion of bank-nonbank interlocks in all of the legislative debates on the Clayton Act, Representative Mann indicated that the original version would have prohibited interlocks between a bank and the “Sugar Trust” company, a bank and United States Steel Corp., a bank and a hat company, or a bank and any other company that competed with the bank. He implied, although he did not state directly, that the conferees’ version of the bill would not reach such interlocks. Ibid.

Then, before Representatives Webb and Sherley had an opportunity to respond to Representative Mann’s remarks about bank-nonbank interlocks, the Speaker overruled the point of order and held that, although the conferees could not “drag in new subjects of legislation,” the subject matter in question was properly before the conferees, because the Sen*145ate had struck out the House bill provisions regulating bank-bank interlocks. The conferees thus did not exceed their authority, and if any Member did not like the Conference Report, he could simply vote against it. Id., at 16273.

Petitioners now strenuously argue, and the Court agrees, ante, at 137-139, that this exchange supports their interpretation of § 8. It shows, they say, that both Representative Mann and the conferees agreed that, whether by material change or by mere confirmation of what was already implicit in the bill, the “other than banks” clause requires the conclusion that banks are not within the scope of the competing corporations paragraph. I am convinced, however, that this exchange strongly supports the Government’s view of §8. Although Representative Mann apparently believed that the final version of § 8 would have to be interpreted in the manner suggested by petitioners, the characterization of a bill by one of its opponents has never been deemed persuasive evidence of legislative intent. NLRB v. Fruit & Vegetable Packers, 377 U. S. 58, 66 (1964). The critical point is that the bill’s supporters characterized the addition of the “other than banks” proviso as making no substantive alteration in the scope of coverage of the original version of § 8. Rather, the sole purpose of the addition was to make clear that bank-bank interlocks would be governed exclusively by the preceding paragraphs, rather than by the competing corporations paragraph. The “other than banks” language thus apparently was not intended to touch upon the question of bank-nonbank interlocks.

In light of the statements of the men most familiar with the circumstances surrounding the addition of the “other than banks” language, we should construe this language as not making a substantive change from the original version of § 8. Thus, petitioners are left with the argument that, even without the “other than banks” clause, the provision still does not reach bank-nonbank interlocks. Some Members of the enacting Congress may well have assumed such to be the case, *146because it was far from clear at that time that a bank could be a competitor of a corporation “engaged in whole or part in commerce.” For example, under the then-prevailing doctrine of Paul v. Virginia, 8 Wall. 168 (1869), insurance companies were not considered to be engaged in interstate commerce. Furthermore, it was uncertain whether a bank was itself a corporation engaged in commerce. Cf. Nathan v. Louisiana, 8 How. 73, 81 (1850) (an “individual who uses his money and credit in buying and selling bills of exchange, and who thereby realizes a profit, ... is not engaged in commerce”).5

But this Court’s more recent cases have made it clear that both banking and insurance corporations are engaged in commerce, and that the antitrust laws apply to them even though some Members of Congress may not have anticipated such a result. See United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 556-559 (1944); United States v. Philadelphia National Bank, 374 U. S. 321, 336, n. 12 (1963). Thus, because the legislative history does not show “a clear and unequivocal desire of Congress to legislate only within that area previously declared by this Court to be within the federal power,” South-Eastern Underwriters, supra, at 556-557, there would be no merit to an argument that, even without the “other than banks” proviso, the competing corporations provision does not prohibit bank-nonbank interlocks.

The remaining bulk of the legislative history cited by both parties and the Court is, in my opinion, of little relevance. The Government cites numerous statements by Congress*147men and President Wilson denouncing interlocking directorates in general, and interlocks between competitors in the banking industry in particular. However, all of these statements are far too general to provide the Government with any really substantial support. None was made explicitly in connection with the provision at issue.

Petitioners and the Court counter with statements of witnesses and Congressmen during Committee hearings and floor debates that supposedly indicate that §8 does not include bank-nonbank interlocks.6 Although these statements seem very helpful to petitioners, close inspection shows that such is not the case. First, all of these statements were made prior to the addition of the “other than banks” proviso. Thus, for the reasons mentioned above, they only support the untenable argument that even the original version of § 8 did not cover bank-nonbank interlocks. Some Congressmen and witnesses apparently thought that only “industrial” corporations engaged “in commerce,” but this fact is of no import. Second, it appears that all of these early statements cited by petitioners are taken out of context. They were made in the context of discussions of vertical interlocks or bank-bank interlocks.7

Accordingly, the only truly relevant legislative history demonstrates that Congress did not intend to exempt bank-nonbank interlocks from coverage. This conclusion seems *148inescapable when we add into the equation the rule that exemptions from the antitrust laws must be construed narrowly, see Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 126 (1982); FMC v. Seatrain Lines, Inc., 411 U. S. 726, 733 (1973), and the fact that bank-nonbank interlocks have strong anticompetitive effects that run counter to at least the spirit of the Clayton Act. Indeed, neither the Court nor petitioners have identified any logical policy reasons why Congress would have wanted bank-nonbank interlocks, unlike every other species of interlocks between competing corporations, to be totally exempt from any form of regulation. Hence, I am convinced that the Court’s holding creates “a loophole in the statute that Congress simply did not intend to create.” United States v. Naftalin, 441 U. S. 768, 777 (1979).8

III

The most appealing argument in favor of the Court’s holding comes not from the statutory language or the legislative *149history, but from the fact that, for over 60 years, the Government took no action to apply § 8 against bank-nonbank interlocks. The Court correctly notes, ante, at 131, that the Government’s failure to exercise its authority for such a long time suggests that it did not read the statute as granting such authority. However, as the Court concedes, ibid., the mere failure of an agency to act is in no sense a binding administrative interpretation that the Government lacks power to act. And even if the Justice Department and/or the Federal Trade Commission had in the past expressly adopted petitioners’ interpretation of § 8 (and in fact, neither agency ever did so), this fact would hardly be dispositive. At most, it would mean that their present interpretation would not be entitled to the usual degree of deference, since it was inconsistent with their previous view.9

There is, of course, no rule of administrative stare decisis. Agencies frequently adopt one interpretation of a statute and then, years later, adopt a different view. This and other courts have approved such administrative “changes in course,” as long as the new interpretation is consistent with congressional intent.10 Here, the concerned agencies until recently never formally expressed a view one way or the other, and the legislative history reveals that the Govern*150ment’s present course is the correct one. The Government’s past failure to adhere to the proper course should not be used as an excuse for ignoring the true congressional intent. I therefore would affirm the judgment of the Court of Appeals.11

See 2 E. Kintner, The Legislative History of the Federal Antitrust Laws and Related Statutes 1733 (1978) (reprinting H. R. 15657, 63d Cong., 2d Sess., as agreed upon in the Committee of the Whole House on June 2, 1914).

See 3 Kintner, supra, at 2429 (reprinting H. R. 15657, 63d Cong., 2d Sess., as amended and passed by the Senate on Sept. 2, 1914).

See Report of the Conference Committee, H. R. Conf. Rep. No. 1168, 63d Cong., 2d Sess., 4 (1914), reprinted in 3 Kintner, supra, at 2458-2459.

Representative Sherley commented that, even without the new language, “any court would hold that the inclusion by name of banks and trust companies in one instance excluded them from the general provisions in the other, and, in addition, banks and trust companies are not [competitors of] industrial corporations.” 51 Cong. Rec. 16272 (1914).

The Court correctly notes, ante, at 134, that Louis Brandéis “argued” that banking is interstate commerce. Hearings on Trust Legislation before the House Committee on the Judiciary, 63d Cong., 2d Sess., 924 (1914). However, Brandéis conceded that this was only a “possible theory,” one that had “not yet been sustained by the Supreme Court.” Id., at 923. Representative Graham expressly disagreed with Brandéis’ argument. Id., at 924.

E. g., “I think there is a grave question as to whether a director in a great life insurance company should be a director in a bank. You have failed to cover that feature.” Id., at 823 (S. Untermyer). See also id., at 921-925 (L. Brandéis); 51 Cong. Rec. 9604 (1914) (Rep. Cullop) (competing corporations provision “relates to industrial and commercial corporations, or institutions of that kind, but has no reference whatever to the banking business”). See generally ante, at 134-137.

The Court does not expressly indicate whether its holding would be the same in the absence of the “other than banks” proviso, but none of the legislative history that it cites, ante, at 133-139, advances its textual argument in the slightest.

The Court states, ante, at 129, that the Government does not dispute that the “other than common carriers” language of § 8 exempts carrier-noncarrier interlocks, and that, to be consistent, the “other than banks” exemption should be interpreted in the same manner. In the first place, the Government has not in this Court taken a position one way or the other on the question whether § 8 applies to carrier-noncarrier interlocks. This issue may be largely academic, for it is difficult to think of examples of situations in which, within the meaning of § 8, a carrier would be a “competitor” of a noncarrier. In any event, a strong argument can be made that § 8 does apply to carrier-noncarrier interlocks. On the same day the House originally passed the Clayton Act, it also passed an amendment to the Interstate Commerce Act (ICA) that would have prohibited carrier-carrier interlocks not approved by the Interstate Commerce Commission. 51 Cong. Rec. 9881, 9910-9912 (1914). A similar bill became law in 1920. See 49 U. S. C. §11322 (1976 ed., Supp. V). Thus, just as the “other than banks” language was added simply to make clear that the provisions regulating bank-bank interlocks were exclusive, it would seem that the “other than carriers” language was inserted just to clarify that the ICA amendment provided the exclusive means for regulating carrier-carrier interlocks.

See, e. g., Bowsher v. Merck & Co., 460 U. S. 824, 838, n. 13 (1983) (White, J., concurring in part and dissenting in part); General Electric Co. v. Gilbert, 429 U. S. 125, 142-143 (1976); Morton v. Ruiz, 415 U. S. 199, 236-237 (1974).

See, e. g., United States v. Generix Drug Corp., 460 U. S. 453 (1983) (approving new agency statutory interpretation despite many years of contrary interpretation); NLRB v. J. Weingarten, Inc., 420 U. S. 251 (1975) (same); NLRB v. Seven-Up Bottling Co., 344 U. S. 344 (1953) (same); United States v. City and County of San Francisco, 310 U. S. 16, 31-32 (1940) (same). The rule that an agency can change the manner in which it interprets a statute is often said to be subject to the qualification that, if it makes a change, the reasons for doing so must be set forth so that meaningful judicial review will be possible. See Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 808 (1973) (plurality opinion); 4 K. Davis, Administrative Law § 20:11 (2d ed. 1983).

Under my view of § 8, it is necessary to reach petitioners’ alternative argument that the interlocked insurance companies and bank holding companies are not “competitors” within the meaning of § 8. But in light of the Court’s holding, I see no point in addressing this issue at length. Suffice it to say that I am inclined to agree with the Court of Appeals that bank holding companies and their subsidiary banks are so closely related that they should be treated as one entity for § 8 purposes. See United States v. Crocker National Corp., 656 F. 2d 428, 450-451 (CA9 1981).