(concurring in part and dissenting in part).
While I concur in the majority’s determination to remand this cause for further proceedings, I find it necessary with respect to the scholarly and analytical opinion of Judge CAMPBELL to dissent with regard to the scope of the further proceedings ordered.
In my opinion, the “fixing of reasonable rates of commission •* * * and other charges” as provided for by § 19 (b) (9) of the Securities Exchange Act of 1934 (15 U.S.C. § 78s(b) (9)) necessarily includes as an ancillary power the prohibition of rebates. The practice of rebates in the field of securities undoubtedly might well involve antitrust considerations if the jurisdiction in the area had not been placed by Congress in the Securities and Exchange Commission. But, in my opinion, it has been so placed.
*278A scheme or pattern of fixing commissions would seem to me to involve as an integral part thereof control of the matter of possible rebates. As of the present time, that control has been exercised by a prohibition of any rebates.
I would therefore eliminate from further proceedings in this case the matter of the Exchange rule per se, being in my opinion controlled by Kaplan v. Lehman Brothers, 250 F.Supp. 562 (N.D.Ill.1966), 371 F.2d 409 (7th Cir. 1967), cert. denied, 389 U.S. 954, 88 S.Ct. 320, 19 L.Ed.2d 365 (1967).
My opinion in this respect is buttressed by the fact that the very matter in issue is now under consideration by the SEC which on May 28, 1968 announced investigation and public hearings on rate structure matters including economic access to the Exchange market by nonmember broker-dealers.
It would seem inappropriate, in my opinion, for this court, or the court below, to attempt to determine the reasonableness of the Exchange prohibition against commission sharing, which the SEC has the power to modify if not consistent with the purposes of the 1934 Act.
The matter of the place of antitrust regulation where a regulatory agency is involved has frequently been before the courts. See the comments of Judge Leventhal in concurring, Cities of Slatesville v. AEC (D.C.Cir.1969).
To paraphrase the language of Judge Leventhal, it is a fair synthesis of these cases that a statute providing for licensing or other regulation is presumed to permit consideration of antitrust principles, with the harmonizing of diverse and even competing principles, unless a contrary intent appears expressly or by necessary implication. No intent to disregard the antitrust principles appears in the Securities Exchange Act of 1934.
However, the plaintiff here as contrasted to Kaplan does not rely solely on the claimed illegality of the antirebate rule but further alleges in effect that if the rule were valid the practices engaged in are violative of antitrust principles. Particular reference was made to various sophisticated devices whereby favored non-members had the practical effect of rebates. This matter as well as those referred to in the next to last paragraph of the majority opinion created genuine issues of fact which should have precluded a summary judgment.
I also must respectfully question the majority’s observation regarding lack of diligence on the part of regulatory agencies enforcing antitrust laws and succumbing to the domination of the industry which they were created to regulate. If it be a fact that there is an apparent lack of diligence this may consciously have been a result reached in balancing diverse public interests. However that may be, I do not have any basis in fact on which to concur in the observation.
It is also to be noted that the parties agree that the SEC may not award damages. It has been held in an analogous situation that under these circumstances even though injunctive relief might be denied, damages could be pursued in the court proceedings. S. S. W. Inc. v. Air Transport Ass’n of America, 89 U.S.App.D.C. 273, 191 F.2d 658, 663 (1951).
For the reasons hereinbefore set out I would reverse and remand but would limit the issues as hereinbefore indicated although in so doing I do not purport, as I am sure the majority did not purport, to suggest what the district judge’s determination could be after hearing the evidence which will be adduced.