(dissenting in part).
The opinion and decision herein is confusing; I find it difficult to ascertain just the present or future posture of the case. First, there is affirmance (by majority vote) of the Commission’s basic finding that the petitioners’ acts and practices were unfair and deceptive. This finding clearly calls for affirmative relief to be determined by the Commission, whose discretion in this regard is extensive under our settled view. Consumer Sales Corp. v. F. T. C., 2 Cir., 198 F.2d 404, 408, certiorari denied 344 U.S. 912, 73 S.Ct. 335, 97 L.Ed. 703; Independent Directory Corp. v. F. T. C., 2 Cir., 188 F.2d 468, 470; Gold Tone Studios, Inc., v. F. T. C., 2 Cir., 183 F.2d 257, 259; Hillman Periodicals, Inc., v. F. T. C., 2 Cir., 174 F.2d 122, 123; Herz-feld v. F. T. C., 2 Cir., 140 F.2d 207, 209. Then, contrary to this line of authority, it is ruled (by vote of a different majority) that the Commission’s remedy— which we have earlier affirmed in Hill-man Periodicals, Inc., v. F. T. C., supra— is here erroneous. When content is given to this charge, the discovered error seems slight, if not nonexistent; for it is said that there should be “a more flexible requirement, such as that the notice of abridgment or new title should be carried on the cover in immediate connection with the title or in a position adapted readily to attract the attention of a prospective purchaser.” Only the part I have italicized is new; paradoxically it states merely the obvious intent of the earlier part, but by its very protestation and addition it waters down and confuses the original clear statement. Thus except for the circumstances of its origin, it might be taken as only a gloss on, or interpretation of, the original. But be that as it may, it thus seems held that the Commission’s own order should be changed only by the addition of these few words. Yet actual*147ly the direction is for a complete reversal and remand of the proceedings.
I think the confusion arises from our having stepped out of our usual role of reviewing only for substantial error and of seeking to avoid interference with the Commission’s discretion in choosing the appropriate remedy. In Hillman Periodicals, Inc., v. F. T. C., supra, 2 Cir., 174 F.2d at page 123, we affirmed a Commission order requiring a competing “paperback” publisher “to refrain, in connection with the distribution of reprints from which substantial part of the original text had been deleted, from representing in any manner [italics supplied] that they were ‘unabridged’ or ‘complete and unabridged’ or ‘full length novel’ or any other term of similar import to designate or describe them”; it further required this publisher “to put the word ‘abridged’ on the front cover and title page of such reprints ‘in immediate connection with the title and in clear, conspicuous type’ ”; and “Whenever a new title was used in place of the original it was required that ‘such substitute title be immediately accompanied, in equally conspicuous type, by the title under which such story was originally published.’ ” The opinion does not recite the evidence or discuss it. The extracts quoted show, however, that the representations covered a variety of forms, as here. That decision quite properly set the standard for the trade; while the Commission could have made a more elaborate record here, it doubtless did not expect a disposition on our part to allow special privileges of competition upon a bold or shrewd deviation from what seem to be the normal and honorable practices of a now enormous business. See Appel, The Paperback Revolution, 36 Saturday Review No. 48, Nov. 28, 1953, 13, 14, 45-48; 48 Fortune 123 (Sept. 1953); Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 302, 303 (1954).
The evidence here to support the Commission’s basic finding is wholly complete and convincing. True, it was based on the spurious products themselves, viewed in the light of reason, i. e., upon what the eye sees, interpreted in the light of the earlier ruling. And true, the Commission did not produce formalistic evidence from experts so-called or from persons actually deceived; why attempt to gild the lily by evidence actually less convincing than the exhibits themselves ? As we have often ruled, all that needs to be shown before the Commission is a tendency or “capacity to deceive” customers, and actual customers deceived need not be produced. Charles of the Ritz Distributors Corp. v. F. T. C., 2 Cir., 143 F.2d 676, 680, citing a wealth of cases; F. T. C. v. Algoma Lumber Co., 291 U.S. 67, 81, 54 S.Ct. 315, 78 L.Ed. 655; F. T. C. v. Standard Education Soc., 302 U. S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141; F. T. C. v. Raladam Co., 316 U.S. 149, 62 S.Ct. 966, 86 L.Ed. 1336; Rosenblum v. F. T. C., 2 Cir., 192 F.2d 392; Book-of-the-Month Club, Inc., v. F. T. C., 2 Cir., 202 F.2d 486. As the examples from petitioners’ products collected in the footnote show,1 deception is inevitable to *148any one but a walking library of the world’s best, medium, or worst literary efforts.
Since, however, our actual decision holds this evidence sufficient for the fundamental finding, it seems especially illogical to decline to apply the same tests in connection with the remedy where the visual evidence is at least as strong. Thus there are various ways petitioners pursue to disguise their changes. A favorite one appears to be the words in rather small type near the foot of the cover — where they would not be read in the usual drugstore rack — “A Special Edition,” which, as the examples in footnote 1 show, is true in only a Pickwickian sense. Even some of the actual disclosures seem only questionably adequate when made in similar inconspicuous and unlikely way, e. g., “With Minor Abridgments” low down and finely printed on the cover of “The City and the Pillar” by Gore Vidal, or “Abridged with the Author’s Consent” at the very foot of the cover of Walter Van Tilburg Clark’s “The Track of the Cat.” Another formula is to set forth the true title in parentheses somewhere on the cover page (often low down) without distinguishing legend.2 And there are other variations to cover either change of title or abridgment. Often, but not always, the matter is more or less explained in small print on the inside title or following page if a customer has the persistence and can bear the frowns of the sales clerk to go that far. But that there is misrepresentation is clear. Surely, to take another example, the display of Thomas Wolfe’s “Look Homeward Angel” means just that, and not merely, say, half of that famous book. Petitioner Weybright himself testified that in general paperbacks must sell themselves on their covers and “blurbs.” Here is opinion from the trade itself as to the value of these representations; and we can see for ourselves, just as could the tribunal of first instance, the Commission, how completely false and misleading these sales appeals are.
Hence merely to look at these book covers is to have ample demonstration of the misleading character of petitioners’ present practices and the need for some adequate remedy such as the Commission has proposed. Not all the disguises are equally misleading, but the order is sufficiently flexible to afford discrimination among them. The inadequacy of the modified form of order here suggested can be seen by putting these books about the distance away from the eye of the ordinary drugstore rack or by actually covering a part of the- cover as in such a rack. An original title, it is then clear, is of aid to the purchaser by eye only when it is in immediate connection with the presently displayed title or blurb. An “expert’s” theorizing in a highly unreal context a long way away from an actual drugstore rack cannot overturn these obvious and necessary deductions from actual observation. There can be no “attention value” for a buyer— not, or not yet, “the reader” — for something he cannot even see in the display racks from which he must make his choice.
There is, of course, a further difficulty when we assume the role of direct*149ing the kind of relief and thus relieve the Commission of ultimate responsibility. If our choice is not effective for the purpose, we are not in a position, as is the Commission, to obtain the necessary information and to act intelligently to correct the difficulties we have caused. So if we have chosen wrongly, we have made enforcement practically impossible. Nor are we in a position to know and maintain a fair balance among various elements in the trade. We are told that many paperback publishers are entering into stipulations with the Commission based on the Hillman case — surely a desirable and a fair step in impartial adjustment within the trade. Now our decision suggests a chance of special favors for intransigence; the healthy uniformity is gone.
Since the petitioners have here won a reversal, presumably they have something of value for their future advertising. But just what it is, is not so clear. I suspect they have won only a chance at further litigation eventually in contempt proceedings. For I doubt if the majority opinion here gives them anything real upon which they dare operate. It seems to me that this is a decision by which everyone loses, because confusion is substituted for clarity and directness. I find it hard to discover the purpose of a modification thus so trouble breeding and at best only so parsimoniously helpful to the complaining parties. The key perhaps is found in the plea against “the regimentation of an industry” and for “the benefit of legitimate enterprise in competition.” But policing an industry against the few mavericks who plan to profit by deception would seem hardly regimentation; rather it is promoting healthy competition according to reasonable rules of fair dealing. A climate favorable to competition does not, in my judgment, really require encouragement of deceit.
Hence I think that, as in the Hillman Case, the order should be affirmed and enforced.
. See, e. g.:
“The Old Man” by William Faulkner, described on the cover as “By the Author of ‘The Wild Palms’ ” and as “A Special Edition” — actually published originally as a part of “The Wild Palms”;
“Malice in Wonderland, a mystery by Nicholas Blake,” so stated over the cover legend “complete Penguin Books unabridged,” but shown in fine print on the back of the title page, amongst the copyright notices, to be not this title at all, but “The Summer Camp Mystery” by the same author;
The like case of “Market for Murder” by Frank Gruber, actually “Beagle Scented Murder”;
“Now I Lay Me Down to Sleep” by Ludwig Bemelmans, noted on the back cover to have been described by the N. Y. Herald Tribune as “a beautiful, brilliant, wicked tour de force,” and by the N. Y. Times as having “a smile on every page”; this, too, was “A Special Edition,” so special in fact that it omitted some 39 per cent of the text;
“The Golden Sleep” by Vivian Connell, represented on the cover as “More Daring Than ‘The Chinese Boom’ ” (by the same author), but said on the inside copyright *148page to be “slightly shortened” and actually cut about 22 per cent;
“having a baby” by Alan F. Gutt-macher, the cover of which identifies it in capitals as a Signet Boole, though it does contain near the bottom a small inconspicuous legend, “The Story of Human Birth,” a hardly adequate reference to the original title, “Into This Universe: The Story of Human Birth”;
“Music for the Millions,” appearing as “A Concise Encyclopedia of Musical Masterpieces” by David Ewen, which tells no more in either its preface, title page, or copyright notice, though the back cover, amid an exposition of the author’s qualities, does say in its ultimate sentence, “a concise, condensed version” — at best not much of a warning that some 65 per cent of the original (which had sufiicient merit to achieve six printings) is here omitted.
. The exhibit entitled “Gunsmoke,” referred to in the opinion, demonstrates the kind of complete confusion to which these practices lead.