(dissenting) :
By this decision the Court blesses unfair, anti-competitive' practices against three groups. First, the Court approves practices by trading stamp companies that eliminate a whole class of small businessmen — those who operate trading stamp exchanges. Second, the Court denies to independent retailers, competing with S & H licensed retailers, freedom to use the effective competitive tool of offering their goods and services for trading stamps. Third, the decision deprives housewives and other consumers of the competitive effects and useful services provided by the exchanges and by retailers (both licensed and unlicensed) who redeem stamps.
Trading stamps are a substantial competitive force in the marketplace, an integral and important aspect of retail distribution in the United States, especially in food retailing.1 In many areas the *152retail grocery stores using trading stamps dominate the market.2 The Court’s decision, therefore, will tend to increase the dominant position of those stores to the detriment of competing retailers and to the detriment of consumers on whom ultimately falls the burden of paying for trading stamps.3
The Commission concluded that between 5 and 14 percent of S & H stamps are never redeemed.4 The right of consumers to transfer and sell stamps at stamp exchanges and the right of independent retailers to redeem stamps would reduce this economic waste. In addition, the existence of stamp exchanges *153will enhance price and quality competition among stamp companies as to the merchandise they offer for redemption. Obviously, it is to the interest of S & H to prevent trading stamps — here pejoratively entitled “trafficking” in stamps. But, under the language of the Federal Trade Commission Act and Federal Trade Commission v. Brown Shoe Co., 1966, 384 U.S. 316, 86 S.Ct. 1501, 16 L.Ed.2d 587, that interest is irrelevant, if the suppressive practices are unfair methods of competition.
The majority fails to give effect to the broad authority Congress granted to the Federal Trade Commission to protect the public from unfair, anti-competitive business practices. “Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce” are unlawful under Section 5 of the Federal Trade Commission Act. The Act does not define the prohibited unfair methods or practices; they are too numerous, too varied and evolve with the times. Instead, Congress decided that it would be better “by a general declaration [to] leave it to the Commission to determine what practices were unfair”. S.Rep. No. 597, 63 Cong.2d Sess. (1914). The House Committee Report is equally positive (H.R.Rep. No. 1142, 63d Cong., 2d Sess. 18-19 (1914):
It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task.
After both Houses passed the bill, the conference committee changed the phrase “unfair competition” to “unfair methods of competition” to avoid any inference that the Act applied only to those forms of unfair competition which were known at common law. 51 Cong. Rec. 12,145; Federal Trade Commission v. R. F. Keppel & Bros., 1934, 291 U.S. 304, 310-312, 54 S.Ct. 423, 78 L.Ed. 814. Soon after the Federal Trade Commission Act became law the Supreme Court in Federal Trade Commission v. Beech-Nut Packing Co., 1922, 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, specifically noted that Congress intended the question whether any particular practice was an unfair method of competition to be “determined upon its own facts, owing to the multifarious means by which it was sought to effectuate such schemes.”
Moreover, in 1938, with the passage of the Wheeler-Lea Amendment to the Federal Trade Commission, Congress broadened the Commission’s authority by authorizing action in protection of the consumer. The House Report stated this Congressional purpose, as follows (H.R.Rep. No. 163, 75th Cong., 1st Sess. p. 3 (1937):
* * * this amendment makes the consumer, who may be injured by an unfair trade practice, of equal concern, before the law, with the merchant or manufacturer injured by the unfair methods of a dishonest competitor.
The Senate also emphasized the intention of the Amendment to protect the consumer by stating that where acts and practices are “unfair” to the “public generally” they should be stopped “regardless of their effect upon competitors.” S.Rep. No. 1705, 74th Cong., 2d Sess. pp. 2-3 (1936). In Federal Trade Commission v. Colgate-Palmolive Co., 1965, 380 U.S. 374, 384, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904, the Supreme Court commented that the Wheeler-Lea Amendment showed Congress’ “concern for consumers as well as for competitors.” Thus, the Commission may act whenever it uncovers practices which are undesirable or inimical to the public interest.
The Supreme Court has approved of an expansive concept of the Commission’s authority to exercise discretion in defining “unfair methods of competition”. In Brown Shoe, the Court declared, “[T]his broad power of the Com*154mission is particularly well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton, Acts even though such policies may not actually violate these laws.” 384 U.S. at 321, 86 S.Ct. at 1504. Section 5 may be used “to arrest trade restraints in their incipiency without proof that they amount to an outright violation of § 3 of the Clayton Act or other provisions of the antitrust laws”. 384 U.S. at 322, 86 S.Ct at 1504.
Brown Shoe had forerunners. In Federal Trade Commission v. R. F. Keppel & Bro., supra, 291 U.S. at 314, 54 S.Ct. 423, 78 L.Ed. 814, the Court remarked that “[n]ew and different ‘unfair methods of competition’ must be considered as they arise in the light of circumstances in which they are employed.” In Federal Trade Commission v. Motion Picture Advertising Service Co., 344 U.S. 392, 394, 73 S.Ct. 361, 363, 97 L.Ed. 426 (1953), the Court noted that in enacting Section 5;
Congress advisedly left the concept [unfair methods of competition] flexible to be defined with particularity by the myriad of cases from the field of business.
More recently in Pan American World Airways v. United States, 371 U.S. 296, 307-308, 83 S.Ct. 476, 483, 9 L.Ed.2d 325 (1963), the Court reiterated these fundamental principles remarking that:
* * * “unfair methods of competition” are not limited to precise practices that can readily be catalogued. They take their meaning from the facts of each case and the impact of particular practices on competition and monopoly.
Again in Federal Trade Commission v. Colgate-Palmolive Co., 1965, 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904, the Court noted “the generality of these standards of illegality” stating that “the proscriptions of § 5 are flexible”.
Brown Shoe has been criticized as raising “issues far beyond the law of exclusive dealing”.5 For example, “Is it consonant with out democratic traditions to permit an administrative agency to refashion statutory standards of legality with no limit except the vague concept of incipiency?”6 The Commission decision in this case has been said to be “a significant departure from past utilizations of section 5” in that in the past the issue under section 5 has been whether the questioned practice was “a violation of either the language or the spirit of the other antitrust laws”.7 But now, so it is said, the “new standard” is a per se standard and turns “not upon whether the act or practice violates the spirit or letter of the other antitrust laws, but simply upon whether it has an adverse effect upon competition”8.
I must say that I do not understand what the Court means by asserting that there was no violation of the letter or the spirit of other antitrust laws. The Sherman Act condemns actions “in restraint of trade”, but it does not specifically define action in restraint of trade. As a term, “restraint of trade” is as broad as “unfair methods of competition”. The “letter” of the Sherman Act is broad enough, without benefit of the “spirit”. There should be little doubt that with benefit of the spirit of the Sherman Act, the Commission acted within the scope of Section 5 of the FTC Act. S & H’s practices here restrained the trade of retail merchants by depriving them of their freedom to use tools (goods and services for stamps) used by their competitors, the S & H exclusive licensees.9 S & H did not simply re*155strain the stamp exchanges in trading: 3 & H put them out of business.10
Second, what S & H argues and what the Court seems to say is that before the Commission may condemn an act as “unfair” it must be an act which previously has been held to violate an antitrust law; otherwise, the Commission is establishing a new per se standard beyond the scope of its delegated authority. But Congress delegated broad powers to the Commission to declare trade practices unfair on a case-to-case approach. The Commission is well aware of this. It started with the premise that trading stamps are not per se unlawful.11 The Commission then went about its business of examining the facts to determine whether the adverse anti-competitive effects of S & H’s practices are substantial enough to require that the public interest in preserving competition take precedence over the business justification for S & H practices. I agree with Commissioner Elman that a broad study and analysis of the trading stamp industry would serve the public interest better than a case-by-case approach.11 But as I read the legislative history of the Federal Trade Commission Act and the Supreme Court decisions construing it, the Commission did exactly what Congress intended it to do — that is, decide whether S & H’s practices were unfair on the facts before it in the light of the public interest. On the record before it, the Commission properly decided that S & H had engaged in unfair, anti-competitive practices.
I am particularly concerned over the Court’s lack of consideration of the consumer’s interest. (1) The cost of the stamps is reflected in the retail price structure. Wholly aside from the question whether a trading stamp company may impose restraints on alienability, it seems to me that fairness to consumers requires that they should have the right to dispose of stamps that came to them with their purchases of goods and services. (2) Because of the stamp company’s restraints on transfer of stamps along with the uniform practice of requiring 1200 stamps to a book (treated as a unit) the housewife is locked in— tied to the S & H retailer, in order to get the full benefit of the prices she pays. See footnote 3. Thus, the system,-for reasons unrelated to the price or quality of products, tends to take away the consumer’s freedom of choice to buy in the open market, putting the consumer under the artificial compulsion to deal with a supermarket already enjoying a dominant position. (3) This is a nation on wheels. We have great numbers of migratory workers and citizens who move from city to city. This group of consumers is benefited and the economic waste in unredeemed stamps is reduced, if consumers are able to exchange stamps they receive in one sec*156tion of the country for stamps they receive in another section.12
In sum, the record supports the Commission’s findings that S & H’s suppressive activities have a detrimental effect on consumers and on competition. These effects outweigh the damage to the stamp companies that will be caused by the Commission’s order.
One final point: I attach little importance to S & H’s success in the courts. That was private litigation. Here, however, the Federal Trade Commission, under a broad grant of authority from Congress, has brought the proceeding in the public interest.
I would affirm and enforce the cease and desist order.
. In 1964 S & H issued 140 billion stamps for which licensed retailers paid $322,-296,000. The retailers gave S & H trading stamps in connection with sales of *152ten to fifteen billion dollars worth of goods and services. About 60 percent of all households in the nation save S & H “green” stamps.
In 1964 trading stamps of all companies were issued in connection with annual sales to the consuming public of about $40,000,000,000.
. The Commission found:
In a number of metropolitan areas stamp dispensing by supermarkets accounts for a major proportion of the retail food business. Twelve supermarket chains accounted for a third of respondent’s revenue of 1965, all of which became customers since the 1950s. The following are some of the markets in which stamp dispensing supermarkets account for over 70 percent of retail food volume: Dallas, Fort Worth, 97 percent; Miami, 79 percent; Albany, 78 percents Jacksonville, 77 percent; Sale Lake City, 86 percent; Little Rock, 79 percent; El Paso, 72 percent.
. Trading stamp companies contend that the cost of stamps are absorbed by the licensed retailers who do not raise prices but hope to profit from an increased volume of sales. In 1966 the average price paid by retailers for stamps was $2.23 for 1,000, or 1$ for about 5 stamps. S & H charges a comparable amount, $2.70 for a book of 1,200. This is 2% percent of the sales on which stamps are given.
On the other hand: “A substantial number of retailers admit that they cannot offset the costs of stamps at all except by passing the cost on to the consumer in the form of higher prices.
“Should the retailer wish to abandon the stamp plan rather than raise his prices, he is faced with some difficulty, for once his customers have begun to save stamps they will not want to stop before they have acquired enough stamps for redemption. This makes it virtually impossible for the retailer to stop giving stamps without losing business. Therefore, when the retailer’s market area reaches the point of trading stamp saturation, continued membership in the stamp plan does no more than allow the retailer to meet competition. If he withdraws from the stamp plan, he will stand to lose business. If he continues to give stamps, he will have to raise prices and thereby antagonize his customers. All the retailers in the area, being faced with the same choice, will probably raise prices. In 1958, when only seven out of ten leading supermarket chains were giving stamps, a study by the Department of Agriculture showed that prices in stores which gave stamps were at least six-tenths of one per cent higher than in stores which did not give them. Today, with trading stamp saturation in many areas, it is probable that this figure has become more substantial.
“The Consumer. — The housewife cannot decline to save stamps; she is virtually forced to do so. If she does not, the buyer who shops at the same store and does save stamps will be paying lower prices for the same purchases. Thus, in order to take advantage of the lowest possible prices, the housewife must submit to the collecting of trading stamps. Moreover, she must choose stores by the kind of stamps they give, for few people will find it profitable to save more than two types of stamps.
“Even if a consumer decides to collect stamps and pay the resulting higher prices, she may not be getting the promised value upon redemption. Stamps are redeemed in some states in either cash or merchandise at the option of the holder. Under these circumstances, the cash redemption value is always much lower than merchandise redemption value. * * * ” Comment, Trading Stamps, 37 N.Y.U.L.Rev. 1090, 1094 (1962).
. From 1914 through 1964, S & H issued 1120 billion stamps. At the end of 1964 156 billion stamps, worth many millions of dollars, were still outstanding. The Commission found that the record did not permit a determination with certainty of the percentage of stamps never presented for redemption by the public, but concluded that it was probable that redemptions would fall “somewhere between 86 and 95 percent of total stamps issued”.
. Handler, Some Misadventures in Antitrust Policymaking, 76 Yale L.J. 92, 98 (1966).
. Id.
. Comment, The Attack on Trading Stamps — an Extended Use of Section 5 of the Federal Trade Commission Act, 57 Georgetown L.J. 1082, 1090.
. The Commission observed that such retailers were not attempting to obtain S & H’s “Green” stamps for reissue, but *155only to attract customers. They were “vying for the patronage of consumers who collected g & H and other trading stamps”. The Commission concluded that where a retailer was faced with stamp competition an effective countermeasure might be to offer to exchange or redeem stamps, and that S & H had prevented this type of competitive reaction.
. The Commission found that g & H had prosecuted a substantial number of suits during the 1957-65 period, and had issued 315 warning letters, all for the purpose of suppressing what g & H regarded as “unauthorized” redemption of its stamps. In virtually all cases, the Commission pointed out, the “firms (many of which were retailers) were forced to abandon their redemption or exchange practices”. The Commission found that the dominance of S & H in the trading stamp field, and the popularity of the g & II “Green” stamp, gave g & H virtual monopoly power over the existence of the small trading stamp exchanges which were unable to operate effectively without g & H stamps. With respect to trading stamp exchanges, the Commission determined that the effect of S & H’s activities
* * * tended to eliminate the operations of a whole class of businessmen who provided, or had been providing, a useful and valuable function.
. Concurring statement of Commissioner Elman.
. Many brands of stamps are dispensed mainly in one region, e. g., Blue Chip stamps in California, Frontier stamps in Texas, Stop & Save in the East. The trading stamp exchange enables eonsumers to trade stamps collected in one location, and not found in the area to which they have moved, for those dispensed and redeemed, in the new area.