(concurring) :
I have no difficulty with the court’s disposition of this case. This concurrence is written only to assure that certain expressions in the majority opinion are not carried over uncritically to a different kind of situation. As the majority point out, the parties cannot control the flow of information to the Commission on the issue of trafficking, or for that matter on any other issue. In a broad sense the Commission has a “duty” to consider matters bearing on the public interest, and specifically matters bearing on transfer of control, though not urged by the parties.1 However, this mandate to the Commission should not be taken as implying authority in a court to raise issues sua sponte where those issues are not fairly within the scope of points presented to the Commission. The general doctrine requiring exhaustion of remedies before an administrative agency2 is applicable to the Federal Communications Commission,3 and indeed has been expressly incorporated into the pertinent statute.4 The exhaustion doctrine is subject to exceptions and is not to be applied in a hidebound way that promotes injustice.5
*723It remains true, however, that the agency’s failures (and achievements), are not for general judicial surveillance except as to matters that have been alerted for agency consideration.
In this case, since there must be a remand anyway, the court’s indication that consideration be given to factual points thus far only lurking in the yecord6 seems reasonably within the role of a reviewing court.7 Whether this court would have power to do anything about it, if for some reason both the Commission and all parties declined to focus on these factual points, is another question. My present thinking is no, but since the question probably is and will remain academic in this case, I see no need to press the point at this time.
. The revelant statute, 47 U.S.C. § 309(d) (1964), directs a hearing where an interested party makes “specific allegations of fact” “supported by affidavit” and “ [i] f a substantial and material question of fact is presented.” A hearing is also appropriate if the Commission is unable to find that the application grant would be in the public interest.
. See 3 K. Davis, Administrative Law Treatise § 20.06 (1958); L. Jarre, Judicial Control or Administrative Action 454-458 (1965); United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
. See, e. g., Community Broadcasting Service, Inc. v. FCC, 126 U.S.App.D.C. 258, 377 F.2d 143 (1967); WLIL, Inc. v. FCC, 122 U.S.App.D.C. 246, 352 F.2d 722 (1965); Massachusetts Bay Telecasters, Inc. v. FCC, 104 U.S.App.D.C. 226, 238, 261 F.2d 55, 67 (1958); Albertson v. FCC, 100 U.S.App.D.C. 103, 105, 243 F.2d 209, 211 (1957); O’Neill Broadcasting Co. v. FCC, 100 U.S.App.D.C. 38, 241 F.2d 443 (1956); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 238-239, 230 F.2d 204, 206-207, cert, denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956).
The approach of Judge Bazelon apparently assumes greater freedom in the courts to raise issues in the public interest that were not presented to or considered by the FCC. See Pinellas Broadcasting Co. v. FCC, supra (dissenting opinion); Citizens TV Protest Comm. v. FCC, 121 U.S.App.D.C. 50, 56, 348 F.2d 56, 62 (1965); Clarksburg Publishing Co. v. FCC, 96 U.S.App.D.C. 211, 215, 225 F.2d 511, 515 (1955). Apparently the issue of “trafficking” is considered to involve some exception to the requirement of exhaustion of administrative remedies.
. 47 U.S.C. § 405 (1964) provides:
The filing of a petition for rehearing shall not be a condition precedent to judicial review of any such order * * except where the party seeking such review * * * relies on questions of fact or law upon which the Commission * * * has been afforded no opportunity to pass.
See cases cited note 3 supra.
. See, e. g., NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947); NLRB v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 90 L.Ed. 739 (1946); Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 *723(1941). See generally 3 Davis, supra note 2, at §, 20.06-.07; Jaffe, supra, note 2, 450-458.
. Nobody alerted this court or the agency to the fact — if it be a fact — that when Clyne made a transfer to Gardner at his cost the other 23 stockholders had contract rights of first refusal which they failed to exercise, or suggested that this was probative evidence that they were under Olyne’s control.
. Courts and agencies are, after all, in a kind of partnership to serve the public interest. See City of Chicago v. FPC, 128 U.S.App.D.C. 107, 385 F.2d 629 (1967).