(concurring in part and dissenting in part).
While I agree that the complaint states a cause of action under the antitrust laws, I do not believe that a remand of this case to the Commission is proper.
Appellant alleges, inter alia, that the defendant, Chicago Mercantile Exchange, knowingly conspired with defendant Siegel Trading Company, to prevent him from continuing as a member of the Exchange and, therefore, from transacting his business. Other allegations in the complaint disclose that incidental to proof of appellant’s antitrust claim is the proving of a transference of his membership by the Exchange to James E. Reich. Since this transference allegedly would violate Exchange rules, and thereby the Commodity Exchange Act, if not pursuant to a valid authorization, the majority reasons that Ricci must first proceed before either the Secretary of Agriculture or the Commission,
It may be that Ricci could have proceeded before the Commission. However, it does not follow that Ricci must proceed before the Commission. The doctrine of primary jurisdiction does not require courts to stay their hand in all controversies which involve factual disputes arguably within the jurisdiction of an administrative agency. Rather, the doctrine holds “that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.” Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). The underlying factual questions in the case at bar involve neither unconventional facts nor administrative discretion.1 Whether *721Ricci executed a valid authorization binding on him at the time of transfer is a question which a district court is as competent to assess as a commission composed of the Secretary of Agriculture, the Secretary of Commerce and the Attorney General. And, since Congress has made the enforcement of contract market rules mandatory (7 U.S.C. § 7a(9)), no question of administrative discretion could arise.
Thill Securities Corp. v. New York Stock Exchange, 433 F.2d 264 (7th Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532 heavily relied upon in the majority opinion, presents a much stronger case for the invocation of primary jurisdiction; yet, two of the judges do not mention the doctrine and the third merely suggests the applicability of the doctrine to the district court.
In Thill, a licensed securities dealer brought a class action against the New York Stock Exchange charging an unreasonable restraint of trade and an unlawful monopoly of the securities market in violation of the Sherman Antitrust Act2 and the Clayton Act.3 The suit was founded on the Exchange’s “anti-rebate rule” which prohibits a member from sharing a commission with a nonmember even though the non-member originally received the customer’s order. The Exchange contended that the “anti-rebate rule” was within the scope of its authorized self-regulatory powers and that the Securities and Exchange Commission was exercising its statutory power of review which explicitly includes the fixing of reasonable rates of commission.4 Surely, primary jurisdiction was a more appropriate disposition in Thill than it is here. Thill was (1) a direct antitrust attack on an Exchange rule (2) which involved unconventional facts and (3) statutorily declared administrative discretion.
In addition, Judge Pell noted in his separate opinion “that the very matter in issue is now under consideration by the S.E.C. which on May 28, 1968, announced investigation and public hearings on rate structure matters including economic access to the Exchange market by non-member broker-dealers.” (Supra, at 278.) Despite this aspect, Judge Pell would have remanded to the district court those antitrust questions which related to the alleged Exchange practice of favoring certain non-members. (Supra, at 278.) While Judge Pell dissented from that part of the majority opinion in Thill which remanded plaintiff’s direct challenge of the “anti-rebate rule” to the district court, he did not do so on the basis of primary jurisdiction. Rather, he felt that “the ‘fixing or 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.” (Supra, at 277.) This is a decision on the merits of the “anti-rebate rule” and, therefore, not relevant to the question of where litigants must seek their remedy. Hence, neither Judge Campbell nor Judge Pell, a majority of the panel in Thill, reached a result consistent with the result reached by the majority today.5 In fact, the opinions of Judges Pell and Campbell appear to be clear authority against the majority’s disposition of the case at bar.
The criteria enumerated by Chief Judge Swygert in his concurring opinion would dictate a remand to the district court in this case.
(1) The SEC’s power to weigh antitrust policy in fulfilling its duty *722of review of Exchange self-regulation.
I assume the majority opinion intends the Commission (Secretaries of Agriculture and Commerce and the Attorney General) to fully decide the issues in this case. Perhaps the very incongruence of these officials deciding difficult antitrust questions is enough to suggest that Congress did not legislate such a result.6 However, the resolution of this question need not rest on such grounds. Congress has strictly limited the jurisdiction of the Secretary of Agriculture and the Commission to violations “of the provisions of this chapter.” (See e. g., Title 7, U.S.C. § 13a.) This chapter means the “Commodity Exchange Act” (Title 7, U.S.C. § 1) and not the “Sherman Act,” which is found at 15 U.S.C. § 1.
Furthermore, there is no provision in the Commodity Exchange Act which suggests that the Commission should regulate these types of competitive factors in contract markets. This is in contrast with SEC statutory authority to review “reasonable rates of commission” which arguably includes such factors. Yet Judge Swygert did not believe that this statutorily granted power of review in the SEC meant, ipso facto, that the SEC had the power to consider these factors.7 Instead, Judge Swygert suggested that the district court consider the question. This careful approach by Judge Swygert is not adopted by the majority although Commission authority to consider antitrust law is, at the least, arguable.
(2) The ability'of an aggrieved party to initiate SEC review.
It is reasonably clear that appellant could have applied for the institution of proceedings before the Commission and/or the Secretary of Agriculture and thereafter petitioned for intervention. By regulation, intervention is permitted 8 upon a showing of (a) the petitioner’s relationship to the matters involved in the proceeding; (b) the nature of the material he intends to present in evidence; (c) the nature of the argument he intends to make; and (d) any other reason he should be allowed to intervene.
These factors indicate that both the Commission and the Secretary of Agriculture possess the power to exclude claimants based on the nature of their claims. Since institution of proceedings is permitted only when there is reason to believe there has been a violation,9 Ricci might be prevented from asserting his anti trust, action before the Commission. Ricci would then return to the district court on his antitrust claim, needlessly multiplying the number of tribunals involved in these proceedings. Of course, this question could be answered, as it was in Thill, by a remand to the district court for the taking of evidence.
(3) The extent that SEC expertise would be useful in resolving the question of whether the anti-rebate rule was necessary to make the Securities Exchange Act work.10
*723Seemingly, the relevance of this factor is extremely limited in this case. Ricci has alleged and must prove facts which show an unlawful conspiracy between the Exchange and Siegel Trading Company. A good faith but erroneous decision by the Exchange would not be a violation of the Sherman Act. The power to decide membership requirements implies the power to make good faith but erroneous decisions. Such power is needed to make the Exchange Act work. Silver v. N. Y. S. E., 373 U.S. 341, 357, 83 S.Ct. 1246. Since Ricci did not allege that a good faith decision by the Exchange to transfer his membership was a violation of the antitrust laws, the question under (3) is whether it is necessary to make the Act work for the Exchange to possess power to determine its membership if these determinations are motivated by otherwise unlawful intent. This is traditional “rule of reason” inquiry which the Court in Silver described as “flexible enough to permit the Exchange sufficient breathing space * * Supra at 360, 83 S.Ct. at 1259.) Whether the Exchange should be insulated from this type of antitrust liability will be considered in the following section. All that remains to be mentioned here is that a district court would have greater expertise and experience in this regard than the Commission. Judge Campbell so held in Thill:
It is in this area of public protection that the SEC claim their expertise. On the other hand, it should be remembered that the courts of the United States have over the years become the repository of antitrust expertise. (433 F.2d at 273.)
Whatever the validity of this holding with regard to the “anti-rebate rule,” it is doubtless true here where the technical complexities do not approach those present in Thill.
(4) The possibility of achieving the aims of the Sherman Act without subjecting exchanges to treble damage suits.
I would think that the aims of the Sherman Act could only be achieved by enforcing that Act against Exchanges which make unlawful transfers of membership for anticompetitive reasons. Perhaps the nature of the action in Thill presents a more difficult question; however, I am able to think of no legitimate public policy goals which are advanced by insulating this Exchange from antitrust liability given the conduct alleged in the complaint. The majority opinion indicates none. Yet, the opinion intimates that because of a “potential repugnance between a decision of the Commodity Exchange Commission and the award of treble damages in an antitrust action” (infra at p. 11), the aims of the Sherman Act should be subordinated to the aims of the Commodity Exchange Act. This “potential repugnance” stems from Commission discretion to refuse to report minor violations of its cease and desist orders.11 Apparently the majority would permit the Commission, which does not have jurisdiction to consider the question of damages, to foreclose private suits if such foreclosure were deemed in the public interest.
This reconciliation of the Commodities Exchange Act and the Sherman Act is not consistent with prior Supreme Court decisions on the subject. United States v. Philadelphia National Bank, 374 U.S. 321, 351, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); United States v. Borden, 308 U.S. 188, 198-200, 60 S.Ct. 182, 84 L.Ed. 181 (1939). Significantly, there is no statutory standard or detailed economic regulation to guide the Commission in making its “public interest” determination. United States v. Philadelphia National Bank, supra; California v. Federal Power Com’n, 369 U.S. 482, 484-485, 487-488, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962). In fact, there is no suggestion that the Commission has ever considered, or desires to consider, the economic impact of its decisions. This is not true either of the FPC or the Comptroller of the Currency. United States v. Phila*724delphia National Bank, supra; California v. Federal Power Com’n, supra. Yet, these bodies do not possess the kind of power the majority would confer on the Commodity Exchange Commission.
Moreover, there is no “potential repugnance” between the Commodity Exchange Act and the Sherman Act. All Congress has done by granting the Commission the aforementioned discretion is to allow the Commission the traditional freedom available to any public prosecutor. It is a cardinal principle of legislative interpretation to construe away from inconsistencies. Here such a construction is not only unstrained, but also the natural meaning to be given the words used. Faced with this situation, a court should not create inconsistencies and then purport to reconcile them.
For the foregoing reasons, I believe the proper disposition of this case is a remand to the district court for further proceedings.
. The Commission does have discretion to refrain from reporting minor violations of its cease and desist orders for prosecution. See discussion infra.
. Sherman Antitrust Act §§ 1-2, 15 U.S.C. §§ 1-2 (1964).
. Clayton Act § 4, 15 U.S.C. § 15 (1964).
. 15 U.S.C. § 78s (b) (9).
. Evidently, Judge Pell believed the New York Stock Exchange is exempt from suits which are direct challenges to its rules. Since Judge Pell concurred in that part of Judge Campbell’s opinion which remanded the remaining issues to the district court, he must have concluded that primary jurisdiction was inappropriate.
. I merely observe that antitrust law is not within the peculiar province of the Secretaries of Agriculture and Commerce. Of course, quite the opposite is true of the Attorney General who is the chief enforcement officer of the antitrust laws and who could possibly be placed in an inconsistent position in having to judge those suits.
. “Cases concerning primary jurisdiction of other administrative agencies to consider antitrust matters do not provide clear guidance for resolution of this question. Compare, Pan American World Airlines, Inc v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963) ; California v. F. P. C., 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962).” (Concurring opinion of Chief Judge Swygert at p. 277.)
. Title 17, C.F.R. §§ 0.8, 0.58.
. Title 17, C.F.R. §§ 0.3, 0.53. Thus, Ricci may be limited to proof of a Rules violation.
. This assumes that the Secretary and/or the Commission have the power to consider antitrust claims. Since the question of primary jurisdiction was neither briefed nor argued orally, we are somewhat inhibited in our analysis.
. 7 U.S.C. § 13(b).