(dissenting).
Affirming this order of the Commission and then directing its indeterminate suspension, causes me to diverge from the majority view. Section 11 of the Clayton Act, as amended, mandates that: “The findings of the Commission * * * as to the facts, if supported by substantial evidence, shall be conclusive,” 64 Stat. 1127, 15 U.S.C.A. § 21. If, as my brothers find, this order squares with the statutory yardstick then a violation of the Clayton Act has been established. But, on the other hand if the order, approved by the majority, requires modification for the reasons they state, then it would seem the Commission’s order is defective since it is unsupported by evidence concerning petitioner’s competitors. After all the matter involves an economic problem within a defined industry. In its opinion (T.R. 1027-1028) the Commission stated, inter alia: “The initial decision in effect held that the status of the price of respondent’s competitors as lawful or unlawful was not controlling to decision here * * *. The lawfulness or unlawfulness of its competitors’ prices * * * are not in issue inasmuch as respondent’s defense has been legally insufficient on other grounds.”
We reach much too far into the administrative agency’s province by reserving our jurisdiction contingent upon “the future course of the Commission’s proceedings against Niehoff’s competitors.” Either such matters are now before us and we have failed to properly evaluate them in reviewing evidence of price discrimination, or, they are not, now, and in that state of affairs we have no business with them. Just when this Court will decide to infuse vitality into the Niehoff order, currently in suspended animation, escapes me entirely. It appears that the majority’s modification compels the Commission to investigate, or complete examination of, Niehoff’s competitors at the risk of forfeiting an otherwise approved order. Whether this entails all 19 competitors or a baker’s dozen is unrevealed. My grave doubts that our statutory power to modify Federal Trade Commission orders can be converted into policing and supervising, though perhaps obliquely, the length, breadth and sequence of Commission investigations brings me to the position I now take. Certainly we would refuse to activate the Commission upon a bare petition for mandamus to investigate the automotive ignition industry. Responsibility of achieving enforcement of the statutes Congress assigned to the Commission lies elsewhere.