(dissenting):
I dissent with all respect. My colleagues’ decision today, of importance to the Federal Trade Commission and would-be deceptive American advertisers generally, is a first at an appellate level. They hold that an advertiser subject to a reviewed and final order of the Federal Trade Commission to cease and desist from deception is entitled not only to a plenary trial, but one with a jury, on the question whether the order has been violated by a “new” commercial (see note 10 infra). They reach this decision not only despite lengthy administrative proceedings, at every step of which the advertiser participated adversarily, the proceedings culminating in the order which was finalized after review by another circuit court of appeals. They appear to me for all significant practical purposes to ignore extensive administrative proceedings, formal and informal, subsequent to the judicial upholding of the order, during the course of which additional proceedings the advertiser was given ample opportunity to modify its “new” commercials so as to comply with the outstanding order but chose instead — in defiance of the Commission’s warnings — at the very least to skirt the edge of the order’s terms. My colleagues give no weight whatsoever to the Commission’s — I may say long-restrained — certification of facts of violation to the Attorney General, after a decade of administrative proceedings, in accordance with the prescribed statutory procedure. Their construction of the congressional purpose pulls the teeth of an enforcement statute enacted to ensure compliance with a judicially-reviewed cease and desist order, rendering the statute as ineffective as soft rubber dentures.
I cannot believe that Congress could conceivably have intended to make it so easy to evade Trade Commission orders. I do believe that my colleagues have overlooked the statutory scheme and hence misconstrued the statutory purpose; they have done so, regrettably I think, without support in the legislative history or, with one minor exception discredited in its own circuit, among the judicial authorities. Their underlying rationale escapes me. Hence this dissent.
I. THE “RIGHT” TO A JURY TRIAL.
The point of departure for examination of the question whether appellants have a right to a plenary, jury trial under Fed.R.Civ.P. 38(a), which preserves “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution . . .,” is 15 U.S.C. § 45(l),1 the civil penalty provision under *440which the Government brought this action. But it is not to be viewed in isolation, as if it were some separate statutory entity. Rather it must be examined in the context of the Federal Trade Commission Act as a whole, taking care to note the statutory scheme and underlying congressional policies concerning the control of deceptive advertising to determine the role and the implementation function of § 4,5(1). Aside from the general goal of seeking to divine the legislative purpose, there are three good reasons that force consideration of the role played by § 45 (l) in the overall regulatory scheme devised by Congress. The first of these is stated in the majority’s opinion as follows: “Congress apparently did not expressly confront the jury trial question [with respect to § 45(i)] • • •"2 Secondly, with only one exception, and that a case subsequently subjected to severe criticism by its own circuit court of appeals,3 no case among the many cited in part III of the majority opinion holds that, in an action brought by the United States to recover civil penalties for violation of the valid order of an administrative agency, the defendant has a right to a jury trial as a matter of statutory or constitutional law. Thirdly, and perhaps most importantly, we must determine whether the recognition of the right to a plenary, jury trial would tend to subvert the entire statutory structure by which the FTC has been charged with the regulation of false and deceptive advertising.4 *441The majority opinion attempts to interpret § 45 (Z) as if it existed in a statutory vacuum. I would reject that approach, relying on the Supreme Court’s recent statement that “our task in interpreting separate provisions of a single Act is to give the Act ‘the most harmonious, comprehensive meaning possible’ in light of the legislative policy and purpose.”5
A. The Statutory Scheme and Administrative Proceedings.
Under 15 U.S.C. § 45, the FTC is responsible for making the initial determination that any party may be engaging in unfair or deceptive practices in commerce. Briefly, if the FTC deems a proceeding under § 45(b) “would be to the interest of the public,” the party in question is served with a notice, hearings are held, and if the FTC determines from the hearings that a violation has occurred, “it shall make a report in writing in which it shall state its findings as to the facts and shall issue . . an order [requiring that party] to cease and desist from using such method of competition or such act or practice.” 15 U.S.C. § 45(b). Under 15 U.S.C. § 45(c), any party subject to such a cease and desist order may then obtain review of that order in a court of appeals. The standard of review set forth in the statute to be applied by the circuit courts of appeals is that “[t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.” Id.6 If either party desires to adduce evidence in addition to that adduced in the hearings, application may be made to the court of appeals which, if it grants the application, orders the evidence to be taken before the FTC.7 The court of appeals then enters a decree affirming, modifying or setting aside the FTC order and enforcing the order to the extent affirmed. Certiorari to the Supreme Court is available under 28 U.S.C. § 347.
In the case now before us, the above procedures were followed and culminated in the enforcement on review by the Sixth Circuit Court of Appeals, with some modification, of the FTC order directed against appellants here. The original complaint against appellants was issued in December of 1962; the court order granting enforcement was entered August 11, 1967, more than 4% years later. J. B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967) (Williams I). Williams I in short represented the culmination by way of judicial review and sanction of an extended administrative process that had found Geritol commercials to be in violation of §§ 5 & 12 of the Federal Trade Commission Act.8
*442After a cease and desist order is granted enforcement by a court of appeals, and only thereafter, can the FTC move to force compliance or exact penalties for noncomplianee. In this case, as the majority opinion points out the FTC and appellants followed the administrative procedure, 16 C.F.R. § 3.61, whereby after issuance of a cease and desist order compliance reports are submitted by appellants to the FTC, and it reviews the reports or institutes proceedings to enforce compliance. The first such report on October 23, 1968, resulted in the calling of a further public hearing by the FTC which was held on November 14, 1968, in which it was determined that appellants’ advertising was not in compliance with the cease and desist order.9 The FTC, rather than moving immediately to force compliance (by way of injunction) or to penalize noncompliance (by way of an action under § 45(1)), gave appellants what amounted to a “second chance,” a fair warning that future noncompliance would necessitate more drastic moves by the FTC.10 It published on December 2, 1968, an opinion which required the submission of a second compliance report. That report, submitted on January 31, 1969, by appellants, dealt with the “AA” commercials before us in counts 1-4 and included the scripts for what before us are the “BB” commercials, counts 5-9. The FTC studied this report and, without holding hearings but after consultation between the FTC staff and appellants’ representatives, advised appellants by letter of what steps might be taken to achieve compliance with the order, viz., deleting all references to “power” in the “AA” commercials. By letter dated May 15, 1969, the appellants accepted the Commission’s conditions and agreed to remove the word “power.” The violations alleged in counts 1-4 occurred between June 10, 1969, and June 20, 1969, more than three weeks after appellants had agreed to stop using them. The “sad-glad” commercials referred to in counts 5-7 were used from and after "June 14, 1969, and before they were submitted to the Commission in the third compliance report filed on June 7, 1969; appellants did not request advice from the Commission as to whether such use would constitute compliance. Counts 8-9 are based on “sad-glad” commercials which also use the word “power,” and these were disseminated between June 2 and June 6, 1969, over two weeks after the May 15, 1969, letter of appellants. As to counts 10-11, the Femlron counts, *443the Commission did not even know of Femlron advertising until it appeared on network television; the Commission staff advised on July 16, 1969, the Commission itself on September 3, 1969, in rejecting the third compliance report, that Femlron was subject to the order. These procedures indicate that after a cease and desist order has been enforced by a court of appeals, the FTC plays the key role in determining whether its own order has been violated and in seeking sanctions for such violation, and its sound administrative practice as followed here gives a previously deceptive advertiser11 who is subject to an outstanding order ample opportunity to demonstrate his belated good faith compliance with the Act. Even given some unasserted right of appellants to secure a narrow review by way of a declaratory judgment as to whether a- specific commercial is in compliance with such an order,12 it seems beyond dispute that the FTC is to use its expertise in construing the order and applying it to “new” advertising.13 Here indeed it did so. To the extent that the majority opinion is a substitution of judicial judgment for that exercise of administrative expertise, it is unsupportable.
On November 28, 1969, the FTC, apparently convinced at this point that appellants both had violated — it did not use but could have used the word “flouted” — the cease and desist order and could probably be expected to do so in the future, took the first step necessary to exact penalties for such noneompliance. This step was not, as seems to be suggested by the majority opinion, merely the submission of a “draft complaint” by the FTC for rubber-stamp approval and prosecution by the Attorney General. It was, rather a certification of facts previously found by the FTC transmitted to the Attorney General, “whose duty it shall be to cause appropriate proceedings to be brought for the enforcement [of § 45(I)].” 15 U.S.C. § 56. The importance of this procedure to the functioning of the entire regulatory scheme has been the subject of extensive consideration by this court in United States v. St. Regis Paper Co., 355 F.2d 688 (2d Cir. 1966). There, in an opinion rejecting the claim that the Attorney General could himself bring a penalty action under § 45(1) without having had the facts of an alleged violation certified to him by the FTC, the court went carefully into both the sparse legislative history and policy reasons supporting the conclusion that only the FTC has the statutory power to initiate proceedings under § 45(1). The opinion is replete with numerous references to the agency’s expertise involved in determining wheth*444er one of its orders has been violated, but the following passage stands out:
To relinquish jurisdiction to the Attorney General after the issuance of a cease and desist order would be most unrealistic, for the Commission alone knows the scope of its orders and has been “provided with staffs to institute proceedings and to follow up decrees and police their obedience. . . . ”
United States v. St. Regis Paper Co., 355 F.2d at 696 (emphasis added), quoting in part United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 94 L.Ed. 401 (1950). Again,
The duty and responsibility for determining . . . whether cease and desist orders issued to eliminate the anti-competitive effects of [certain] practices have been complied with or violated was delegated solely to the FTC.
Id. at 693 (emphasis added.) This quote is not, as intimated in the majority opinion, being used to support the proposition “that the FTC was to be judge as well as prosecutor.” The fact that 15 U.S.C. § 56 requires the FTC to proceed through the Attorney General after a fact certification is itself conclusive that the FTC is neither to be sole judge nor prosecutor. The majority’s reference to “ex parte” determinations of violation is inexplicable, given the facts of this case, in which — before the penalty action was initiated — there was a full public hearing and argument on the first compliance report, as well as numerous meetings between the parties and the exchange of correspondence on the second and third compliance reports. And, contrary to the assertion that the agency’s determination of violation is “not entitled to weight in an adjudication proceeding before a court,” it clearly emerges in the St. Regis opinion that the acknowledged expertise of the FTC in interpreting its own orders is to be given some weight in the § 45(Í) action. The underlying premise of the majority that no weight is to be accorded to the FTC’s certification of facts in and of itself emasculates the penalty provisions of the Act.
The soundness of the St. Regis opinion has recently been reinforced by the decision of the Court of Appeals for the District of Columbia in Holloway v. Bristol-Myers Corp., 485 F.2d 986 (1973). There, plaintiffs asserted a private right of action to enforce 15 U.S.C. §§ 45(a), 52(a)(1) and 54(a), existing by implication from the statutory scheme. In rejecting this implied right Judge Leventhal addressed himself to the inseparability of the dual functions of the FTC in determining whether violations had occurred as well as acting in an enforcement capacity: “the substantive prohibitions of the statute are inextricably intertwined with provisions defining the power and duties of a specialized administrative body [the FTC] charged with its enforcement. ...” Id. at 989 (footnote omitted). See also FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 96 L.Ed. 1081 (1952). As pointed out by this court in St. Regis, what would be meat to the FTC might well be poison to the Attorney General. 355 F.2d at 695. The certification of facts by the Commission to the Attorney General is in and of itself a determination of violation of the cease and desist order.
Section 45(Í) having been invoked in this ease as one of three possible means of securing compliance with the cease and desist order, the statutory scheme has run full course. The question what right to a plenary or jury trial might exist under § 45(i) cannot be treated, I repeat, without considering the question what weight must be accorded to the “facts” found by the FTC and certified to the Attorney General under 15 U.S.C. § 56.
Appellants here do not claim any generalized right to a jury trial on all disputed issues of “fact” that may arise or did arise in the “compliance” phase of these 11-plus years of administrative and judicial proceedings. Rather, appellants claim a right to a jury trial on two issues which appellants choose to charac*445terize as factual: (1) the meaning of the commercials and (2) the meaning of the word “properties” as applied to the product Femlron in counts 10 — 11. The majority ultimately concedes that the latter question is a purely legal question that was in the province of the court below to resolve. In my view, for reasons that will appear below, the court in making that determination should give great deference to the agency’s own views on that question. The narrow question remains whether appellants were entitled to a trial de novo (indeed a jury trial) on the “meaning” of the 11 commercials.14
B. Expertise and the “Meaning" of Commercials.
The principal function performed by the FTC in the administration of the deceptive advertising provisions of the Federal Trade Commission Act is the determination of what advertising actually violates that Act. The FTC is also responsible for making broader policy that may affect the whole spectrum of advertising,15 but the one area in which its expertise has never been seriously questioned is in determining whether a given advertisement is “deceptive.”
The case law on this “expertise” is unequivocal and so voluminous that it is necessary only to illustrate the point. As the District of Columbia Court of Appeals recently stated,
The Commission has developed a fund of knowledge as to the probable impact upon purchasers of particular advertising representations, and in recent years has been active in the evolution of new and innovative remedies to correct false advertising and to undo the effects of deceptive trade practices.
Holloway v. Bristol-Myers Corp., 485 F.2d at 998-999.16 The Supreme Court had earlier stated its view on this precise question:
This statutory scheme necessarily gives the Commission an influential role in interpreting § 5 [15 U.S.C. § 45] and in applying it to the facts of particular cases arising out of unprecedented situations. Moreover, as an administrative agency which deals continually with cases in the area, the Commission is often in a better posi*446tion than are courts to determine whether a practice is “deceptive” within the meaning of the Act. This Court has frequently stated that the Commission’s judgment is to be given great weight by reviewing courts. This admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment.
FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965) (emphasis added).
There is no reason of which I am aware that this expertise is suddenly to be discarded once an order has been made and reviewed, as the majority does.17 Viewing the Federal Trade Commission Act as an integrated whole, see note 2 supra, which is the way Congress viewed it, I simply cannot agree that the storehouse of information acquired, and experience gathered by the FTC on the question of the effect of advertising on consumers, the “meaning of commercials,” is to be disregarded, or that Congress intended it to be disregarded, at what might be — owing to the intransigence or greediness of an advertiser — the most critical point of the entire process, that of penalizing those who would defy the will of Congress as expressed in the Act.18
C. The Legislative History.
This court has previously referred to the legislative history of § 45(i) as “sparse,” United States v. St. Regis Paper Co., 355 F.2d at 692, and it is conceded by all that neither the statute itself nor the legislative history make any direct reference to the jury trial question. In such a situation we should be doubly aware of Justice Jackson’s admonition in Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 396, 71 S.Ct. 745, 751, 95 L.Ed. 1035 (1951), that “to select casual statements from floor debates, not always distinguished for candor or accuracy, as a basis for making up our minds what law Congress intended to enact is to substitute ourselves for the Congress in one of its important functions.”
I do not draw the same inferences as the majority does from my examination of the legislative history as is available to guide us. The Wheeler-Lea Amendments of 1938 to the Federal Trade Commission Act had a tortured history of congressional inaction and compromise which has been thoroughly recounted elsewhere. See generally Holloway v. Bristol-Myers Corp., 485 F.2d at 992-994. It appears that some members of Congress successfully held up passage of the final bill by their strenuous advocacy of the position that control and regulation of deceptive advertising should be placed within the jurisdiction of the Food and Drug Administration. The opponents, who eventually prevailed, made the argument that the FTC, as a “quasi-judicial” body, was in a better position to deal with this category of practices.19
*447Section 5(1) of the Amendments, now 15 U.S.C. § 45(1), was one of the provisions adopted to make cease and desist orders more effective. Prior to the adoption of the Amendments, enforcement of a cease and desist order could be had only after new proceedings, presumably full-blown hearings, had been instituted to ascertain whether the order had been violated. One of the purposes of new § 5(J) was to streamline the procedure as follows:
The order of the Commissioner would definitely become final as provided in Section 5 and become operative as to further transgressions without the initiation of new proceedings as now required after the violation occurs.20
H.R.Rep.No. 1613, 75th Cong., 1st Sess. 6 (1937). These “new proceedings,” at least in the mind of Representative Chapman, represented a frustration of the purposes of the administrative process because of the very nature of the advertising beast:
Advertising copy is frequently changed as a matter of good advertising technique. By the time the cease-and-desist order or an injunction becomes effective the advertiser, as a matter of course, will change his copy. He can continue this process indefinitely without running any risk whatever of penalty, and when he has run the gamut of all the claims he can plausibly make for his product, he can then change its composition, as patent-medicine manufacturers have so frequently done, and repeat the process over and over again.21
83 Cong.Rec. 400 (1938).
At two points during the House debate, brief comments were made, although not directly referring to the jury trial question, that cast some light on the question why there was any need in the first place for a complex regulatory scheme to prevent and regulate deceptive advertising. Representative Sirovich, relatively early in the debate, made reference to “the American gullible public.” 83 Cong.Rec. 394 (1938). Later in the debate, Representative Coffee reiterated and fortified this prior statement by reference to “the gullible people.” Id. at 416. Congress, these remarks indicate, was supremely aware that the average American citizen was often unable to discern the false from the true when subjected to the sales pitches of the advertising industry. One might even group within the classification of “gullible” us federal judges.22 If this be true, it is certainly permissible to draw the inference that a jury would not have been considered by Congress to be the most useful tool to implement the purposes of the Federal Trade Commission Act had Congress directly considered tEe question.23
*448The only other “clue” in the legislative history derives from a brief reference to the fact that the civil penalty provision was based on similar provisions in the Packers and Stockyards Act of 1921 and the Securities Exchange Act of 1934. See, e. g., S.Rep.No. 1705, 74th Cong., 2d Sess. 7 (1936). The provision of the former,' 7 U.S.C. § 195, is clearly criminal and therefore has no relevance here, unless it is seen as a general reference to the fact that criminal sanctions were included in the Wheeler-Lea Amendments. There is some question as to what provision of the Securities Exchange Act was being referred to, and for what purpose, by the Wheeler-Lea lawmakers in their reports and debate. H.R.Rep.No. 1613, 75th Cong., 1st Sess. 4 (1937), clearly indicates that the reference to the Securities Exchange Act of 1934 was to 15 U.S.C. § 78y(a), which is nothing more than the general provisión under which decisions or orders of the SEC are subjected to judicial review, as opposed to 15 U.S.C. § 78ff(b) (referred to by the majority opinion). The reference to the Securities Exchange Act of 1934 may thus have been simply a general reference to features incorporated into the Wheeler-Lea Amendments. Specifically, the reference in the House Report goes to the inclusion of a provision making PTC orders final unless appealed within a 60-day period. Neither the remarks of Senator Wheeler, 80 Cong.Rec. 6594 (1936), nor those of Representative Reece, 83 Cong.Rec. 397 (1938), relied upon by the majority, make reference to any specific provision of the Securities Exchange Act of 1934. In S.Rep.No. 1705, 74th Cong., 2d Sess. 7, 8 (1936), specific reference is made to 15 U.S.C. § 78y(b) with respect to granting the courts of appeals the power to issue temporary injunctions, and 15 U.S.C. § 78y(a) with respect to the time for appeals. S.Rep.No. 221, 75th Cong., 1st Sess. 7 (1937), in pertinent part, is merely a reprint of S.Rep.No. 1705, and thus adds no reference to 15 U.S.C. § 78ff(b) or otherwise clarifies this question. None of the sources standing for the proposition that the Congress considered § 45 (Í) to be patterned on the Securities Exchange Act of 1934 make reference to the majority’s § 78ff(b) ; they' refer only to 15 U.S.C. § 78y(a) and (b).24
D. Reasoning by Reference to Other Statutes.
Given the paucity of legislative history bearing on the issue before us, one is tempted to reason by analogy to other statutory provisions that may “look like” § 45(1). But as the foregoing has, I hope, made clear, to reason by analogy is at best dangerous where a statutory penalty provision was adopted as part of and integral to a complex regulatory scheme formulated by Congress with certain objectives in mind, and at worst looking to one’s “own heart for his decision” as opposed to “seeking to divine out of the confused, often conflicting and half-conscious aspirations which lie behind a statute some resultant of those forces in keeping with what was consciously contemplated.” A. Cox, Hand and the Interpretation of Statutes, 60 Harv.L.Rev. 370, 373 (1947).
The analogy to the Interstate Commerce Act penalty section, 49 U.S.C. § 16(8), drawn in the majority opinion seems to me not in the least persuasive. This provision is said to be “almost certainly” “the true model” for § 45(1). If this were so, of course, one might have expected some reference to it in the legislative history of § 45(1), especially giv*449en the apparently inaccurate reference to provisions in the Stockyards Act of 1921 and the Securities Exchange Act of 1934. Nevertheless, two features of § 16(8) stand out most prominently: first, the question whether the right to a jury trial obtains under that section has never been either litigated or decided; second, the language of § 16(8) is itself sufficiently different from that of § 45(1) to render any analogy without significance.
As for “other contemporaneous railroad regulation statutes,” to which the majority refers, perhaps including 49 U.S.C. § 16(2), which deals with civil complaints by persons against carriers in reference to an ICC order for the payment of money, the only thing necessary to say is that what is or was good for the railroads probably has little or nothing to do with the control of deceptive advertising by the FTC.
As to the language of § 16(8) itself, that section differs, inter alia, in that it requires an ICC order to be knowingly violated. Not only does § 45(1) have no such requirement, but the Supreme Court has said flatly that specific intent is not a requisite to violation of an order issued by the FTC in a false advertising case. FTC v. Colgate-Palmolive Co., 380 U.S. at 393. It seems evident that the penalty provisions governing ICC orders are plums while here we have a different, if less sweet, fruit.
One analogy, completely neglected by the majority, remains to be explored which should at least theoretically be more fruitful because it involves the incorporation of § 45(1) as an enforcement tool in Clayton Act proceedings. This provision, now 15 U.S.C. § 21 (I), as its legislative history shows, was patterned after § 45(1) because the FTC had shown a more than two-decade history of being unable effectively to enforce the Clayton Act with the limited means available. S.Rep.No. 83, 86th Cong., 1st Sess. 2 (1959). Without detailing the enforcement procedures then existing, suffice it to say that one of the specific objections to the earlier procedure was that “enforcement of the court’s order must be secured in a subsequent contempt proceeding, which requires proof that new activities of the respondent have violated the court’s order.” H.R. Rep.No. 580, 86th Cong., 1st Sess. (1959), U.S.Code Cong. & Admin.News, p. 1805 (1959). Congress, although it did not confront the jury trial issue directly, can hardly be thought to have wanted to substitute, for an ungainly system of new hearings and review, a procedure that would require the agency in effect to try its whole case de novo before a court or a jury. Now Chief Judge Coffin of the First Circuit captured what I take to be the essence of § 21 (Í) when he said that “Congress has provided that a final Commission order can be the unimpeachable basis of a Justice Department suit against a defendant for violation of such order, with fines up to $5000 for each violation.” Farmington Dowel Products Co. v. Forster Manufacturing Co., 1 Cir., 421 F.2d 61, 75 (1970). The point here is that once an order of the FTC is final, one subject to such an order has already had his “day in court” and is on notice thereafter that violations are subject to severe penalties without the interposition of renewed hearings and trials of issues that have been previously decided.25 The unsupported assumption of the district court in United States v. Beatrice Foods Co., 344 F.Supp. 104, 111 (D.Minn.1972), aff’d, 490 F.2d 332 (8th Cir. 1974), that jury trial is available *450where there is an issue of material fact, does not control the question. Indeed, in affirming the Beatrice judgment the Eighth Circuit paid no heed to the lower court’s dicta regarding a jury trial and examined § 21(1) in much the same light as this dissent examines § 45(1), 490 F.2d 332. Very clearly were there such an issue the district court could “stay its hand” pending a determination thereof by the agency. Cf. CIBA Corp. v. Weinberger, 412 U.S. 640, 644, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973).
E. Judicial Precedent, and, Parenthetically, Constitutionality.
As stated, there is only one case that has held that a right to a jury trial obtains in an action under § 45(1). In United States v. Hindman, 179 F.Supp. 926 (D.N.J.1960), the question was whether an order issued by the FTC prohibiting the use of the label “custom-made” was sufficient to cover a label, “custom-tailored,” subsequently adopted for use by the defendant. The totally fallacious premise upon which the district court arrived at its conclusion that a jury trial was required was as follows:
we must bear in mind the principle that the meaning to be given such representations as these [presumably both “custom-made” and “custom-tailored”] is not the meaning which would be attached to them by experts, but by the average man who would be likely to purchase the articles in question and to whom those representations are thus made.
Id. at 927-928. The statement is a non sequitur in the first place: while the question of deceptiveness relates to laymen being deceived, expertise on what is deceptive is important. Beyond this, according to the Hindman court, neither “expert” testimony nor the expertise of the FTC itself plays any role whatsoever in determining what advertisements are or are not deceptive. One is forced to wonder what the district court thought the FTC was in business to do.
Not surprisingly, the Hindman court’s holding was categorically rejected, albeit in dictum, by its own court of appeals in United States v. Vulcanized Rubber & Plastics Co., 288 F.2d 257, 258-259 n. 2 (3d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961). After recounting the facts as presented to the Hindman court, the Third Circuit said that the Hindman court’s holding
was erroneous, since the sole issue before the court was whether or not the labeling practice was within the proscription of the order and not whether the labeling practice was deceptive. . Moreover, creating an issue of fact as the court did in Hindman, would usurp the function exclusively vested by Congress in the Federal Trade Commission to determine the issue of whether a labeling practice is misleading or deceptive to the public.
(Emphasis added.) As the text of Vulcanized makes clear, the court there based its statement concerning the “sole issue before the court” on its reading of FTC v. Morton Salt Co., 334 U.S. 37, 54, 68 S.Ct. 822, 92 L.Ed. 1196 (1948). In its petition for a writ of certiorari to the Supreme Court, Vulcanized conceded that to be the correct application of Mr. Justice Black’s language in Morton Sait,25a but nevertheless argued that the FTC had never passed on the labeling of .its combs “rubber-resin”; rather, Vulcanized insisted, the order went only to combs labeled “rubber” or “hard rubber.”
Although the Third Circuit remarks with respect to the Hindman case and a jury trial may be “dictum,” it is relevant to consider that the Government there had been awarded summary judgment by the district court, which award was affirmed and certiorari denied. Thus, what appellants here would certainly characterize as a “factual” dispute was resolved as a matter of law by all the courts which passed on that issue, even though Vulcanized character*451ized the dispute, one involving the meaning of an order, as a factual one.26
There is, of course, a series of cases relied on heavily by the majority, the "leading” one of which we are told is Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909). These cases generally hold jury trials to be available in actions for civil penalties or forfeitures. In my view they are totally inapposite for in none of them was there a prior administrative proceeding culminating in a judicially upheld administrative order, the violation of which was in issue; in all of them the question of violation of a statute was being tried for the first time and ab initio. Here, however, appellants were long ago found by the FTC, in turn upheld by the Sixth Circuit Court of Appeals on review, to have engaged in deceptive advertising; the only question is whether a “new,” ever so slightly changed commercial is within the reach of that order, not whether there was deceptive advertising in the first instance. Any intimation that Congress was in the Federal Trade Commission Act “opting” for “the Hepner principle” strikes me as, however sophisticated, wholly sophistical.
The most recent discussion by the Supreme Court of the right to trial by jury in civil cases is to be found in Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198, 42 U.S.L.W. 4595 (1974). In Pernell, the Court held that an action to recover possession of real property brought in the District of Columbia pursuant to D.C.Code § 16-1501 entailed the right to a jury trial under the seventh amendment. The Court stated that it “has long assumed that actions to recover land, like actions for damages to a person or property, are actions at law triable to a jury.” Id. at 4597, 94 S.Ct. at 1727. The Court then went on to distinguish Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921), a case relied upon heavily by the lower court in denying a right to a jury trial, in the following way:
Block v. Hirsh merely stands for the principle that the S^enth Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication. See Curtis v. Loether, 415 U.S. at 194 [94 S.Ct. 1005]. See also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 [57 S.Ct. 615, 81 L.Ed. 893] (1937).
42 U.S.L.W. at 4601, 94 S.Ct. at 1733. The Court pointed out that under the statutory scheme operative in the District of Columbia, no administrative agency was involved either as a fact-finder or as an adjudicator, each dispute coming fresh to the courts, and the Court said “We may assume that the Seventh Amendment would not be a bar to a congressional effort” to delegate the resolution of such disputes to an administrative agency without the right to a jury trial being granted. 42 U.S.L.W. at 4601, 94 S.Ct. at 1733. The majority opinion in this case finds “further support” for its holding on the seventh amendment issue in the Pernell decision by stating that § 45(i) “provides for just such a ‘civil action.’ ” Consistent with oversimplification of the application of the Hepner line of eases to this issue, however, the majority ignores the fact that § 45(0 is not an isolated “civil action” provision but rather is a provision conceived with and embedded in a complex statutory scheme that is the very foundation of an administrative agency’s power.
*452In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260, 42 U.S.L.W. (1974), the Court rejected an argument that a damage action brought under § 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612, was not to be tried to a jury if the defendant timely requested that it be so tried. The plaintiff in Curtis relifed heavily on two cases, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), and Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), to support her claim that the seventh amendment was not applicable to her right of action. In Jones & Laughlin, note 23 supra, the Court had upheld the award of back pay in an NLRB proceeding, rejecting a seventh amendment claim; in Katchen, the Court upheld over a seventh amendment claim the Bankruptcy Act’s grant of summary jurisdiction in a trustee’s action to compel a claimant to surrender a voidable preference. In commenting in Curtis, Mr. Justice Marshall, writing for a unanimous Court, stated that Jones & Laughlin
stands for the proposition that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with the [agency’s] role in the statutory scheme.
42 U.S.L.W. at 4261, 94 S.Ct. at 1008 (emphasis added). Mr. Justice Marshall then commented on both Jones & Laughlin and Katchen, writing that
These cases uphold congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity free from the strictures of the Seventh Amendment. But when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.
Id. (emphasis added) (footnote omitted) . The emphasized language above is apparently a reference to one of the three factors listed as critical to determining the “legal” nature of an issue by Mr. Justice White in Ross v. Bernhard, 396 U.S. 531, 538, n. 10, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). If one thing stands out from the discussion above of the legislative history of § 45 (i), it is that Congress thought its constituents sufficiently “gullible” that to protect them from deceptive advertising, the FTC, as a “quasi-judicial” administrative agency, alone would have the expertise and resources to define and adjudicate what is or is not deceptive advertising. If any aspect of the FTC’s role in the statutory scheme is made clear by the cases decided since 1938, it is that the FTC, and only the FTC, is in a position to deal with the question of deceptive advertising which “rests so heavily on inference and pragmatic judgment.” 27 Indeed, it is the law of this case as previously determined by the Sixth Circuit, *453Williams I, 381 F.2d at 890, that the FTC is not required to “take a random sample to determine the meaning and impact of the advertisements.” On the issue of meaning, what would a jury finding be other than a “random” sampling?
The argument is made that the two “other” factors listed in footnote 10 of Ross v. Bernhard, supra, i. e., “the premerger custom” and “the remedy sought,” are said here to “point strongly toward jury trial.” As for the former it is necessary only to reiterate that § 45 (l) was and is one part of a complex regulatory scheme that, it so happens, was enacted almost contemporaneously with the merger of law and equity in the federal courts. Thus, the stark fact is that there is no “pre-merger” custom or practice to which we can look for guidance. As to the “remedy sought,” here it is a civil penalty, recently raised by Congress to a maximum of $10,000 per violation, that serves the purpose of punishing those who would defy the orders of the FTC. The question of the meaning of the commercials is, in conclusion, not a question for trial de novo, whether by court or jury. It is a question which Congress entrusted to an administrative process and where there is a functional justification for denying the jury trial right. As such the seventh amendment does not apply. NLRB v. Jones & Laughlin Steel Corp., supra. See Curtis v. Loether, supra.
II. CONSIDERATION OF THE ELEVEN COUNTS.
A. The Function of the District Court.
This opinion would be incomplete if I did not delineate what I believe to be the precise function to be played by the district court in a penalty proceeding under § 45(1). Although it could be argued that the underlying administrative law tests, now incorporated in the Administrative Procedure Act, might be read into § 45(1), we are confronted, as with the jury trial question, with the fact that Congress has never directly addressed this question. It would not be amiss to proceed with the words of Professor Llewellyn in mind:
Here [where Congress did not directly consider a question in passing a statute that has been on the books for many years] the quest is not properly for the sense originally intended by the statute, for the sense sought originally to be put into it, but rather for the sense which can be quarried out of it in the light of the new situation.28
This “situation” is “new” only in the sense that no case has ever addressed itself directly to the question what weight is to be accorded the FTC’s determination that its cease and desist order has been violated. I view it as nothing more or less than the traditional question of what the seope-of-revew is and on what record it is to be based.29
As previously noted, see note 8 supra, Judge Motley stated that her consideration was to be based on the plain language of the cease and desist order, the Sixth Circuit’s decision enforcing that order, and “relevant proceedings before the FTC.” This is eminently sound as a starting point. What, however, are “relevant proceedings before the FTC”? On what type of record is a § 45(l) proceeding brought in the district court to proceed ?
Relevant proceedings include, of course, the record generated in the administrative process which led to the enforcement of the cease and desist order, as modified, by the Sixth Circuit. The importance of this record cannot be overemphasized, because as I have recounted at some length both the FTC and appellants litigated, albeit in administrative proceedings, the very questions that are now before this court in the form of modified commercials. This record has already been subjected to “substantial evidence” review in the *454Sixth Circuit, whose decision binds any future consideration of the implications of that record and the reach of the cease and desist order.
But also before the district court (and hence before us on appeal) are the records of the administrative proceedings that were generated subsequent to the Sixth Circuit decision. These proceedings during the “compliance” phase consisted of public hearings, findings of the FTC, correspondence, meetings between representatives of the FTC and appellants, and the certification of facts by the FTC to the Attorney General along with transmittal of a draft complaint. It may be said that these proceedings are, on balance, informal, as opposed to the formal hearing procedures called for in § 45(c). As previously discussed relative to the adoption of 15 U.S.C. § 21(i), one feature of § 45(0 is to avoid the expense and delay of further formal proceedings after a cease and desist order has become final. At that point, justice must be swift as well as just. This point is nowhere better expressed than by Mr. Chief Justice Warren, writing for the Court in FTC v. Colgate-Palmolive Co.:
If respondents [subject to a final cease and desist order] in their subsequent commercials attempt to come as close to the line of misrepresentation as the Commission’s order permits, they may without specifically intending to do so cross into the area proscribed by this order. However, it does not seem “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”30
I°take this passage to indicate the traditional standard of review for both the district courts and appellate courts in a § 45(J) proceeding: great deference is to be accorded to the FTC at this stage in the proceedings. As Mr. Chief Justice Warren made clear, the due process rights of those subject to cease and desist orders are largely protected by the compliance procedures themselves. 380 U.S. at 394 & n. 22.
This type of deference has been the subject of very recent Supreme Court consideration in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). There a decision of the Comptroller based on informal procedures31 was thought by the court of appeals to require de novo review by the district court. In reversing, the Supreme Court held tnat the review was not to be de novo but rather upon the informal administrative record compiled below, and that review on such a record was to be on the “arbitrary, capricious” standard of 5 U.S.C. § 706(2) (A) and not on the “substantial evidence” test of 5 U.S.C. § 706(2) (E) “which is appropriate when reviewing findings made on a hearing record. . . . ” Id. at 141-142.32 The Court went on to hold that the district court had the power “to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Id. at 143.
While Camp is not controlling, it serves to point the way.33 If the dis*455triet court in a § 45 (Z) proceeding, after reviewing the record before it and hearing argument, deems the record inadequate for any purpose, there is no reason why it could not entertain a motion by either party for remand to the FTC to adduce the necessary facts and to have the FTC pass on those facts.34 Such a procedure is already explicitly available to the court of appeals on initial review, and we do no violence to the statutory scheme by “quarrying” out of it this flexible tool. Indeed, the only reason we can perceive for not doing so is that'those subject to a cease and desist order might rightly be thought to have the burden ab initio to bring such facts to the attention of the FTC under 16 C.F.R. § 3.61 during the compliance procedure.
If any doubt remained as to whether the district court below was required or empowered to hold a plenary trial on the questions as to which appellants assert a right both to a plenary and jury trial, one need only look to the type of evidence appellants seek to have introduced at such a trial to recognize that the attempt is nothing more than one to secure formal hearings which have been denied by Congress. Appellants demand, inter alia, a trial “in which its [sic] witnesses could be heard and in which it [sic] would have the opportunity to cross-examine Government witnesses taking contrary positions.” Brief for Appellants at 23. It is difficult to see how such a proceeding would be anything less than equivalent to formal hearings, albeit before a judge presumably possessing no expertise whatsoever. Congress could have provided for formal hearings or plenary trials ad nauseum; it did not do so. See H.R.Rep.No. 1613, 75th Cong., 1st Sess. 6 (1937).35
B. The Function of the Appellate Court.
Taking the position that the question whether these 11 commercials violated the cease and desist order is a question to be decided without plenary trial to judge or jury, I address briefly the question of what function we perform at *456the appellate level. As to questions of law decided by the district court, the court of appeals can exercise full powers of review as to the soundness of the conclusions reached. To the extent that any questions decided by the district court implicate the discretion of that court, e. g., the question of amount of penalty assessed, it is our obligation to defer to the decision of the district court unless that discretion has been abused or arbitrarily or capriciously exercised, such deference to be at least as great as in the case of, say, a criminal sentence of a youthful offender where reasons are required to be stated. See United States v. Kaylor, 491 F.2d 1133 (2d Cir. 1974) (en banc).
C. The Order and the Sixth Circuit Decision.
Having set out the pertinent parts of the cease and desist order below,36 it may not be amiss to quote at some length the Sixth Circuit’s summary of that order, by which, of course, this court is bound: •
The Commission’s Order requires that not only must the Geritol advertisements be expressly limited to those persons whose symptoms are due to an existing deficiency [of vitamins or iron] . . . , but also the Geritol advertisements must affirmatively disclose the negative fact that a great majority of persons who experience these symptoms do not experience them because they have a vitamin or iron deficiency; that for the great majority of people experiencing these symptoms, Geritol will be of no benefit. Closely related to this requirement is the further requirement of the Order that the Geritol advertisements refrain from representing that the symptoms are generally reliable indications of iron deficiency.
381 F.2d at 886-887 (footnotes omitted) (emphasis added). The Sixth Circuit’s decision explained that its use of the word “symptoms” included the symptoms of tiredness, loss of strength, rundown feeling, nervousness or irritability. Id. at 886 n. 3.
It is beyond dispute here that in the 11 commercials before this court, no commercial even purported to make the affirmative disclosure required by the order and the Sixth Circuit’s reading of that order.37 At this point, it is obvious *457that appellants embarked upon a course of action which would, in all probability, bring them “close [r] to the line,” see text at note 30 supra, of violating the order than had they decided instead to make the affirmative disclosures required by the order and the Sixth Circuit opinion.38 Of course, such was their right, but they had been duly warned by the FTC of its determination to ensure that, absent affirmative disclosures, the commercials could not even by inference refer to the “tiredness” symptom.39 The absence of any such disclosures serves to sharpen focus on the words of the order itself, which forbade representation “directly or by implication that the preparation is a generally effective remedy for tiredness, loss of strength, run-down feeling . ” The precise question for this court, as it was for the court below, is whether appellants came so close to the line as to warrant deference to the FTC’s conclusion that the line was crossed, “directly or by implication.”
Counts 1-4 involve commercials denominated as the “AA” commercials. The pertinent portion of the commercial that is the basis for count one is set out in the margin;40 the Government’s argument centers on the inclusion of the phrases “iron power” and “blood-build*458ing power.” Appellants were given notice by the FTC prior to the dissemination of these commercials that it was the opinion of the FTC that these commercials violated the cease and desist order and that they would be in compliance with the order if the reference to “power” were deleted. Instead of acceding to this opinion by discontinuing the commercials, or attempting to litigate the issue,41 appellants assumed the risk that their interpretation of the FTC’s cease and desist order would prevail over the interpretation of that order by the very agency that had framed it.
Unless as an appellate court we sit to try de novo, the question before us on counts 1-442 is not, as the majority would have it, whether the inference drawn by the district court concerning the use of the word “power” 43 is either the “most likely” or “one that a jury would be compelled to draw.” As for the inference being the “most likely,” it is clear that such a standard would be in direct conflict with the idea that the FTC functions to protect “the vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze but too often are governed by appearances and general impressions.” Aronberg v. FTC, 132 F.2d 165, 167 (7th Cir. 1942). The standard to be applied in a direct review proceeding is whether such an inference might reasonably be drawn by. some members of the general public, not by either all members of the general public or by a majority of the public.44 Neither judges nor jurors are in a position to second-guess the FTC’s opinion on this question. Again, the standard that should be applied here is whether the finding by the FTC, that some members of the general public would draw that inference, is arbitrary or capricious.45
On its face, the inference drawn by the district court below is unassailable under this standard. The relationship between the word “power” as used in the context of these commercials and the condemned practice of unqualified reference to “tiredness,” etc., in the cease and desist order clearly supports the district court’s conclusion on these counts.46
*459Counts 5-9 involve commercials that appellants term the “sad-glad” commercials. In counts 5-7, the theme is that a woman has been made “sad” because she has discovered that she has “iron-poor blood.” After taking Geritol, this same woman suddenly becomes glad. Appellants argued below that the “sad-glad” theme was essentially a play to “basic human emotion” and “human interest,” and that there were no inferences to be drawn between “sadness” and “tiredness,” etc. The district court, emphasizing the visual effect of the commercials, stated that the commercials
may be easily perceived as a contrast between feeling weak and run-down and feeling lively. The wife, who looks dreary and perhaps run-down in her “sad” state at the beginning of the advertisements, looks energetic when she gives a broad smile at the end of the advertisements.
United States v. Williams, 354 F.Supp. 521, 539 (S.D.N.Y.1973) (Williams II). The district court properly points out that
The common-sense response of many viewers to the advertisements — that the wife is not sad only because of the knowledge that she has iron-poor blood, but because of the effects that this condition has had and is having on her.
Id.47 Having introduced into these commercials by implication the very symptoms that were the subject of the cease and desist order, appellants’ argument that the commercials are without the order border on the frivolous.48
The commercials which are the subjects of counts 8-9 are of the same “sad-glad” motif as those in counts 5-7 and additionally involve the use of the word “power.” The district court held, and there can be no doubt, that these commercials clearly violated the order. See Williams II, 354 F.Supp. at 543.49
The commercials involved in counts 10-11 present two distinct questions. The first question is whether Femlron comes within the scope of the order as “any other preparation . . . possessing substantially similar properties, *460under whatever name or names sold.” I would affirm the district court’s conclusion as well as its reasoning on this point, Williams II, 354 F.Supp. at 531-532, adding only the comment that the marketing of Femlron, in effect, to evade the reach of the order was a strategy addressed specifically by Representative Chapman during the debate over the Wheeler-Lea Amendments in 1938. See text accompanying note 22 supra.
Thus I join with the majority in agreement that the Femlron commercials violated the order. In these commercials, a “tired mother” was juxtaposed against the “vital look” of a woman who took Femlron, and to this visual counterpoint was added the comment, “You see, some women even risk becoming anemic and tired.” I would only add that the “tired-vigorous” dichotomy seen so clearly by the majority opinion in the Femlron commercials seems to this lay observer to be the very same sort of effect created by the “sad-glad” motif of the commercials in counts 5-9. There is perhaps a difference in the degree of success with which the dichotomy was drawn, but the visual impression in the Femlron commercials need not even have been fortified by the “tired” language to bring these commercials within the order, in my view as in the view of the FTC.
The conclusions I would reach are identical to those reached by the district court which apparently did not give any weight to the FTC’s finding that the commercials violated the order. But as I have reiterated above, ignoring, as the majority does, the expertise of the FTC at a stage that can only be labeled as critical in the enforcement process runs counter to the entire regulatory scheme put forth in the Federal Trade Commission Act. Particularly with respect to the word “power” as used in counts 1-4, the benefit of the doubt, were there any, would have to go with the FTC in the light of the history of appellants’ advertising. This is not because the FTC is the sole judge of the question, which it is not; it is rather because, assuming the good-faith application of agency expertise during the compliance phase of the proceedings, a good-faith application not directly challenged here by appellants, the FTC has worked closely with the advertising of Geritol for over a decade. If its conclusion as to the inference to be drawn from the word “power” is entitled to any less respect than others it makes during the course of carrying out its assigned tasks, this can only be because that decision was not made as the consequence of formal hearings, but as has been said, Congress intended this to be the case. That Congress has the “leeway” to establish such procedures is beyond dispute. Cf. Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 622, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). The FTC, as its press release of June 25, 1969, makes clear, was at that time and had been throughout the compliance phase unanimously of the view that the use of the word “power” violated the order. The only dissent within the FTC was expressed by Commissioner Elman, joined by Commissioner Nicholson, who criticized his three colleagues for their extraordinary efforts to encourage voluntary compliance rather than instituting court proceedings to force compliance. App. at 104-07. It is nothing other than this unanimous view of the commissioners of the FTC that the majority overturns by suggesting that appellants may be entitled to summary judgment on counts 1-4. This is pure and simple judicial usurpation of the administrative process.
III. NOTICE.
Appellants make two arguments concerning notice: (1) that penalties under § 45(1) do not accrue until one subject to an order has been notified by the FTC that he is not in compliance and until a reasonable time has been allotted to bring himself into compliance; (2) that liability on counts 5-11 should be limited because the FTC either failed to respond or delayed response to the submissions of appellants to the FTC in *461connection with the commercials involved in those counts.
The first argument is based on the language of Continental Baking Co. v. Dixon, 283 F.Supp. 285, 287-288 (D.Del.1968) (application for stay of penalties under § 45 (Z) denied), where it was said that penalties under § 45 (Z) could not accrue until the FTC made a “finding” of noncompliance and this finding, indicating the extent of noncompliance, was communicated to the alleged violator. The court there reasoned that any other interpretation would raise “serious questions of due process.” Id. at 288. What these “serious questions” might be one is left to ponder, but the appellants’ argument here is that a warning of noncompliance is required by the “breadth of the Commission’s orders.” Brief for Appellants at 40.
But, of course, the Sixth Circuit found that this very order “is not unduly vague and fairly apprises the Petitioners of what is required of them.” Williams I, 381 F.2d at 891. This holding is itself dispositive of appellants’ constitutional claim; there is no authority standing for the proposition that due process requires or could be thought to require any additional notice. Certainly if civil rights advocates must contest the constitutionality of a temporary injunction enjoining their demonstration through the courts before disobeying it, Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), it can hardly be argued here that appellants’ right to engage in activity not protected by the constitution, i. e., dissemination of false and misleading advertising, requires greater constitutional protection.
Appellants’ argument based on statutory grounds is equally without merit. The legislative history of § 45 (Z) reveals that one purpose of that section was to render orders final so that they might “become operative as to further transgressions. . . . ” H.R.Rep. No.1613, 75th Cong., 1st Sess. 6 (1937). In floor debate, Representative Lea stated that § 45 (Z) provided “for making the order of the Federal Trade Commission automatically backed up by the court when it becomes final.” 83 Cong. Rec. 392 (1938) (emphasis added). The statement of record by the FTC on this question, 33 Fed.Reg. 19097 (1968), is clearly consistent with § 45 (Z) and the legislative history of that section.
Appellants’ other notice claim — that the FTC failed to respond or delayed response to submissions by appellants to the FTC, thereby somehow exposing appellants to greater penalties than they would conceivably have been subject to had the FTC jumped through their hoop more quickly — is in my view frivolous. It seeks to place on the agency the burden of leading an advertiser subject to a cease and desist order through the minefield laid by that advertiser’s attempts to read the order for as little as it is worth. Taken as an allegation of bad faith on the part of the FTC, it is unsupported and I agree with the majority that we need not comment on what measures a district court might take to remedy such a situation, as where a delay of four years occurred. See generally United States v. American Greetings Corp., 168 F.Supp. 45 (N.D.Ohio 1958), aff’d on opinion below, 272 F.2d 945 (6th Cir.1959).
Finally, it puts the appellants’ notice argument in its true light to recollect as the majority does — I need not repeat here — the facts of the administrative proceedings following the Sixth Circuit’s denial of the petition to review the cease and desist order which had become final on December 31, 1967. See Part 1A supra. My only regret is that these proceedings were treated by the majority only in connection with the notice contentions.
IV. PENALTIES.
■ The majority and I agree that § 45(Z) as written allows for the imposition of a $5,000 (now $10,000) penalty “for each violation” with each violation being a “separate offense.” Appellants argue that the “day of continuance” language should be read to limit penalties imposa*462ble on any given day to $5,000 regardless of how many times or in how many places a commercial is run during that day. The appellants point out that under this holding, one subject to a mandatory order of the Commission would be liable to a penalty of only $5,000 per day for disobedience, whereas one, like appellant, who violates an order in 30 different places on the same day might be subject to $150,000 in penalties. I am in complete agreement with the majority on this point when it states that “Congress relied on the good sense of the FTC in making its certification to the Attorney General and, failing that, on the discretion of the court to prevent . an outrageous result.”
This conclusion flows directly from the import of the statutory scheme and particularly 15 U.S.C. § 56, discussed supra. It is also relevant to our disposition of appellants’ claims that (1) the Government is limited by the “certification” of the FTC in this case to collecting a maximum of $500,000 in penalties and (2) that the penalties are not assessable against both appellants because they essentially constitute the same entity for purposes of § 45 (¿).
As for the first question, based on the interpretation of 15 U.S.C. § 56 supra, there is no answer to the proposition that the Government is bound by the FTC’s certification of a $500,000 penalty, and no more, if that figure was so certified. My reading of St. Regis Paper Co., supra, almost requires such a result and is supported by Holloway v. Bristol-Myers Corp., supra. The dispute, then, centers on whether such a figure was in fact certified. The certification letter itself, App. at 296-301, indicated no figures for penalties except by reference to a draft complaint submitted by the FTC to the Attorney General, but that clearly limited the certification to “Judgment against defendants in the total sum of $500,000.” App. at 324. I do not think we have to accept the reasoning of the district court that the draft complaint “was intended [merely] to facilitate the Attorney General’s task.” Williams II, 354 F.Supp. at 546. I thus can agree that FTC expertise and discretion were lodged in this decision to seek penalties limited to $500,000, and that this decision should be given force here, that is, that the total sum assessable against both appellants is $500,000.50
Because the district court’s order was against J. B. Williams for $456,000 and Parkson for $356,000, I would affirm so much of it as pertains to J. B. Williams. The question then would be whether Parkson is liable for the remaining $44,000. These two corporations have, since 1962, represented themselves as separate entities before the FTC and before the Sixth Circuit. The majority would pierce the corporate veil to provide Parkson with immunity. I would not. The reason for not doing so is not merely because J. B. Williams was seeking to avoid the 15 per cent advertising agency fee (taken in the form of a discount by the media to the agency from the price paid by the sponsor). Rather it seems to me that it was well within the exercise of FTC discretion on the basis of the course of appellants’ conduct to charge Parkson with responsibility. Its role as a captive, wholly-owned agency was to work out the violative advertising. The “pitch” worked out would —like that of the patent medicine salesman of years gone by — imply a lot and say little and thereby convey a meaning deceptively appealing while hopefully leaving law enforcement holding the bag by little changes in the pitch at the last moment. While the ethics of the independent advertising agencies of Madison Avenue may not necessarily rival those of Calpumia, particularly when it comes to keeping a big customer’s account, one would suppose that their fear, were they in Pai’kson’s situation, of personal (or corporate) liability would result in coun*463sel to the client of moderation or restraint in dealing with the Commission’s order. Here there was none since the “agency” is not just captive but slave. In Schenley Distillers Corp. v. United States, 326 U.S. 432, 437, 66 S.Ct. 247, 249, 90 L.Ed. 181 (1946), the Supreme Court said:
While corporate entities may be disregarded where they are made the implement for avoiding a clear legislative purpose, they will not be disregarded where those in control have deliberately adopted the corporate form in order to secure its advantages and where no violence to the legislative purpose is done by treating the corporate entity as a separate legal person. One who has created a corporate arrangement, chosen as a means of carrying out his business purposes, does not have the choice of disregarding the corporate entity in order to avoid the obligations which the statute lays upon it for the protection of the public.
Parkson was subject to the cease and desist order. It violated the order. It should not escape responsibility — in my view to the extent of only $44,000 — for that violation. Nor is it an answer to say that J. B. Williams might not have employed any agency; we are not here to deal in hypothetical exercises.
V. THE EVIDENTIARY HEARING.
The question of the right of appellants to an evidentiary hearing on subjects such as their alleged “good faith belief” that the commercials did not violate the order is open in my view as to all counts. The question may be addressed in two ways: first, whether there is any right to such a hearing as a matter of law; second, if so, what is the appropriate forum for such a hearing?
The FTC’s decision to seek penalties against appellants constituted a decision by it that appellants had not exercised good faith in its attempts to comply with the cease and desist order. In its statement released on June 25, 1969, a majority of the commissioners stated their belief that “the end result of these compliance negotiations will be the cessation of deceptive advertising for Geritol. . . . ” App. at 102. The only inference to be drawn from the institution of this action under § 45 (2) is that the three-member majority Of the FTC that ascribed to the statement above on June 25, 1969, over the vehement objection of Commissioner Elman, joined by Commissioner Nicholson, no longer saw appellants’ efforts as exhibiting “good faith” on November 28, 1969, when the certification of facts to the Attorney General took place. Indeed, a review of the relevant documents in this case, including but not limited to that statement, the findings and opinion issued by the FTC on December 2, 1968, and the letter of certification itself, leave no doubt that the FTC exercised a patience toward appellants that in the history of administrative law must be rather remarkable.
Agreeing with the majority’s statement that the district court’s function with respect to penalties is limited to the prevention of an “outrageous result,” there is not one scintilla of support in the evidence proffered by the appellants to be taken in a hearing that could possibly affect the outcome here. But even were this not so, the holding that the FTC exercised discretion in arriving at the $500,000 figure indicates that it is the FTC that is to pass in the first instance on the question upon which appellants now seek an evidentiary hearing in the district court. Who, better than the FTC, is in a position to determine the extent to which appellants exercise “good faith”? In a proper case, and this is not one, the district court has the power to order further evidence to be adduced before the FTC, and to review the FTC’s conclusion under the “arbitrary or capricious” standard. As Judge Leventhal said in Holloway v. Bristol-Myers Corp., supra, there are
frequent references in the legislative history [of the Wheeler-Lea Amend-*464merits] to the Trade Commission’s expertise in dealing with commercial practices, its abilities to act as a buffer in securing voluntary compliance through informal proceedings, and its sound discretion in determining when formal enforcement measures were necessary.
485 F.2d at 995 (footnote omitted) (emphasis added).51
I would affirm as to J. B. Williams Co., Inc. I would modify, and as modified, affirm the judgment against Park-son Advertising Agency, Inc.
. Prior to its recent amendment, tlxis section read as follows:
Any person, partnership, or corporation who violates an order of the Commission *440to cease and desist after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the United States. Each separate violation of such an order shall be a separate offense, except that in the case of a violation through continuing failure or neglect to obey a final order of the Commission each day of continuance of such failure or neglect shall be deemed a separate offense.
This section was recently amended, Act of Nov. 16, 1973, Pub.L.No. 93-153, § 408, 87 Stat. 591-592, for the purpose of ensuring the “prompt enforcement of the laws the Commission administers.” Id. at § 408(b), 87 Stat. 591. Although there is no legislative history on this particular amendatory Act, Congress was clearly expressing its dissatisfaction with both the speed and force by which FTC orders were being enforced. There is some indication that Congress viewed § 45(1) proceedings as essentially equitable by importing into those proceedings the power to issue mandatory injunctive relief “and further equitable relief,” this power to be exercised by the district courts. Of course, such relief could previously be granted by the court of appeals granting enforcement of the cease and desist order, in this case the Sixth Circuit, so we must assume that Congress had some reason to lodge this same power in the district courts in § 45(1) proceedings.
One possible view is that Congress viewed the record in a § 45(1) proceeding to be more amenable to review by a district court because of the nature of the informal proceedings that constitute a critical portion of that record. See part IIA infra. Regardless of what view is taken, it seems highly doubtful that Congress would have incorporated what are clearly equitable remedies into a § 45(1) proceeding to increase the district court’s power to deal with offenders if Congress had realized that § 45 (Í) carried with it the right to a jury trial. Indeed, the inclusion of injunctive power in § 45(1) as amended lends support to the Government’s argument that civil penalties and injunctive relief are in fact alternate remedies.
. The absence of direct evidence as to congressional intent leads to the conclusion that intent
must be ascertained by examining the purposes and objectives of the FTCA [Federal Trade Commission Act] as a whole in terms of objective criteria, i. e., the relevant inquiry is “how, one supposes, it [the legislative scheme] * * * would appear to a ‘reasonable’ interpreter.”
United States v. St. Regis Paper Co., 355 F.2d 688, 693 (2d Cir. 1966), quoting Bishin, The Law Finders: An Essay in Statutory Interpretation, 38 S.Cal.L.Rev. 1, 3 (1965). See also note 28 and accompanying text infra; Holbrook v. United States, 284 F.2d 747, 752 (9th Cir. 1960) (“a significant consideration . . is a comparison between the results to which each such consideration would lead”).
. United States v. Hindman, 179 F.Supp. 926 (D.N.J.1960), criticized in United States v. Vulcanized Rubber & Plastics Co., 288 F.2d 257, 258-259 n. 2 (3d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961).
. Reduced to its simplest terms, the point is that if a court or jury of 12 is given the *441power to decide de novo the question whether a given advertisement is deceptive, i. e., the “meaning of the commercials,” Brief for Appellants at 29, then the FTC, at least insofar as deceptive advertising is concerned, would be stripped of the major function presently performed by it in the regulatory scheme — deciding what is and what is not deceptive advertising. See note 13 infra. Other considerations urged upon us by the Government, such as the need for streamlined procedures commented on by this court in United States v. St. Regis Paper Co., 355 F.2d at 693, are also important, but the nub of the problem remains whether the FTC on the one hand, ór a judge or jury on the other, is to pass on whether specific advertisements are deceptive under the Federal Trade Commission Act.
. Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 631-632, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207 (1973), quoting Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88 (1947).
. This has generally been held to bind the court of appeals to the “substantial evidence” rule. Charles Pfizer & Co. v. FTC, 401 F.2d 574 (6th Cir.), cert. denied, 394 U.S. 920, 89 S.Ct. 1195, 22 L.Ed.2d 453 (1968); Montgomery Ward & Co. v. FTC, 379 F.2d 666 (7th Cir. 1967).
. “The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken . . . .” 15 U.S.C. § 45(c).
. Part III of the majority opinion purports to decide the question whether the 11 commercials which are the subjects of this action violated the cease and desist order without so much as a passing reference to the Sixth Circuit decision that gave that order the imprimatur of the judiciary. Regardless whether Judge Motley correctly defined the *442court’s function, she cannot be faulted for her statement that “correct interpretation of the order requires the court to consider not only its plain language, but relevant proceedings before the FTC and the Sixth Circuit’s decision as well.” United States v. J. B. Williams Co., 354 F.Supp. 521, 532 (S.D.N.Y.1973) (Williams II).
. Those specific advertisements are not the subject of this action, but the Findings and Opinion of the FTC concerning them is most relevant, since the present controversy may not properly be considered in an administrative vacuum. See part II infra.
. While the FTC questioned its own hesitation on this question at a later date, the legislative history of § 45(1) indicates that Congress desired disputes between the FTC and advertisers to be worked out without resort to court action where possible. If the outcome of this case is to require the FTC, after 11 years of proceedings, to go before a judge or jury and prove to either, de novo, that certain commercials are false and deceptive, something that it has spent more than a decade and enormous public resources to do, it may well be that the FTC in the future will be forced to resort to the courts more quickly and as frequently as possible. There would appear to be no other way to deal with those advertisers who, as appellants here, can at best be described as intransigent. One cannot help but suppose that the burdens on the federal courts, see H. Friendly, Federal Jurisdiction: A General View Part II (1973), will be further exacerbated with the multiple review Judge Friendly’s opinion would propose. Cf. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973) : “The deluge of litigation that would follow if ‘me-too’ drugs and OTC drugs had to receive de novo hearings in the courts would inure to the interests of manufacturers and merchants in drugs, but not to the interests of the public that Congress was anxious to protect . . . . ” See also the remarks of Rep. Chapman quoted in the text at note 21, infra.
. [T] here is substantial evidence to support the finding of the Commission that most tired people are not so because of iron deficiency anemia, and the failure to disclose this fact is false and misleading because the advertisement creates the impression that the tired feeling is caused by something which Geritol can cure.
Williams I, 381 F.2d at 889.
. At least one court has held that the FTC’s rejection of a compliance report is subject to review in a declaratory judgment action, but only at the risk of the petitioner, who cannot use that review to stay or otherwise jeopardize the public’s interest in securing possible penalties. Floersheim v. Weinburger, 346 F.Supp. 950 (D.D.C.1972).
. The term “new” is used here to describe commercials that were the subject of the cease and desist order but which have been modified to any extent in an attempt to comply with the order. The change of a single word in a commercial might bring that commercial into compliance or might leave it in its prior state of noncompliance. Whatever effect changes might have, the “new” commercial is different from the commercials that were the immediate subjects of the cease and desist order, yet obviously the Commission cannot be required to start its proceedings all over again. The cease and desist order must, therefore, bo regarded as a flexible instrument to be interpreted in such a manner that it cannot be flouted by changes in the form of commercials that do not affect the substance of the false or deceptive impression conveyed by those commercials. See FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 96 L.Ed. 1081 (1952). This is elementary.
. As the majority opinion at footnote 16 suggests, Judge Motley’s opinion below seems to acknowledge that certain factual questions arising out of the compliance phase of the proceedings might, in some instances, require a jury trial. Such a factual question might be on what date, or on how many occasions, a commercial was transmitted to the general public in violation of an order. Even if these issues — which in no way resemble the issue of the meaning of the commercials — were “the very sort which juries are traditionally called on to resolve,” Judge Friendly’s opinion at 25, it would not mean that Congress did not delegate to the FTC the responsibility for determining such “facts,” subject only to review for lack of substantial supporting evidence. 5 U.S.C. § 706(2) (E).
While due process might mandate that such facts not be determined on a completely ew parte basis, the compliance phase of the proceedings were not so conducted. As discussed in the body of this dissent at note 7 supra, there is no reason why a district court in a § 45(1) proceeding could not grant a motion to adduce additional relevant evidence before the FTC, should a party in appellants’ position assert such a due process deprivation. Cf. CIBA Corp. v. Weinberger, 412 U.S. 640, 644, 93 S.Ct. 2495, 2498, 37 L.Ed.2d 230 (1973) (“Cases may arise where there has been no formal administrative determination of the ‘new drug’ issue, it being first tendered to a district court. Even then, however, the District Court might well stay its hand, awaiting an appropriate administrative determination of the threshold question”). This question is not before us because appellants make no such claim.
. See generally Holloway v. Bristol-Myers Corp., 485 F.2d 986 (D.C.Cir. 1973) ; United States v. St. Regis Paper Co., supra.
. See also Niresk Indus. Inc. v. FTC, 278 F.2d 337, 341-342 (7th Cir.), cert. denied, 364 U.S. 883, 81 S.Ct. 173, 5 L.Ed.2d 104 (1960); Carter Prods., Inc. v. FTC, 268 F.2d 461, 495 (9th Cir.), cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959). See also the enormous amount of regulation of deceptive advertising by opinions, “guides” and rules in dozens of industries. 16 C.F.R. § 15.1-15.427; 16 C.F.R. Parts 17-253.
. Their opinion makes passing reference to the “weight” to be accorded FTC findings of violations in framing remedial orders, but makes no attempt to explain why this expertise is irrelevant in a § 45 {l) proceeding.
. The majority says that “While Congress placed the usual substantial evidence rule in § 5(c) [15 U.S.C. § 45(c)] of the FTC Act, dealing with judicial review of orders, it made no similar provision in § 5(1) [15 U. S.C. § 45 (Í)]-” But review may be had under the Administrative Procedure Act. 5 U.S.C. §§ 701, 706. See Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. at 653-654.
. H.it.Itep.No.1613, 75th Cong., 1st Sess. 5 (1937) (emphasis added) :
The Federal Trade Commission as an independent, quasi-judicial body, has a procedure better calculated to handle multitudinous types of advertising and to do its work to the greater confidence and satisfaction of the public than any purely administrative body. Its work carries with it the combined elements of searching investigation, orderly procedure, prevention rather than penalization in minor cases, and that judicial fairness essential to the enlistment of confidence by the public.
. A similar “streamlining” occurred when Congress adopted the language of § 45(1) into 15 U.S.C. § 21(1), which now governs the enforcement of the Clayton Act. See infra.
. This statement is clearly applicable to the court’s disposition of the Femlron “properties” question.
. I know of nothing to support the majority’s assertion that jurors “have more experience than most judges” when it comes to deciding whether a commercial is “deceptive.” In the final analysis I suspect, and I believe Congress insists, that the FTC has the greater expertise and wherewithal to decide that question than “the American gullible public,” subject always to review for arbitrary, capricious or unlawful exercise of that function. 5 U.S.C. § 706(2) (A).
. As will be discussed, the logic of the majority’s position would probably compel reexamination of the Supreme Court’s decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (jury trial right denied in back pay case), which was recently reaffirmed in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260, 42 U.S.L.W. 4259, 4261 (1974). In Jones & Laughlin, the Court said: “The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment *448for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.” 301 U.S. at 48 — 49.
. Assuming, arguendo, that the reference was in fact to 15 U.S.C. § 78ff(b), and assuming, arguendo, that a violator of that section would be entitled to a jury trial — a question that so far as I know has never been litigated — it is readily apparent that the question to be decided by the jury, i. e., whether certain documents required to be filed by 15 U.S.C. § 78o(d) had in fact been filed, does not involve any prior SEC findings made as the result of formal or informal hearings.
. If a modified commercial is within the order, the issue of its “deceptiveness” or “meaning” has already been litigated before the FTC even though that precise commercial was never actually before the FTC prior to the compliance phase of the proceedings. Whether it is within the order is a question in the first instance for the exercise of agency discretion, subject only to review for abuse or if exercised arbitrarily, capriciously or contrary to law. 5 U.S.C. §§ 701, 706. Cf. CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973). See also note 10 supra and the text at note 21 supra.
. Brief for Petitioner at 12.
. Professor Jaffe, who is right in so many things but like the rest of us not in all, agrees with Hindman, asking “Who better than a lay customer to decide?” L. Jaffe, Judicial Control of Administrative Action 319 n. 237 (1965). But like the Hindman court and my colleagues here, the good professor fails to give any weight to — indeed, he does not mention — whatever administrative proceedings, formal or informal, led up to the FTC’s certification of facts to the Attorney General or the certification itself. This is what the court in Vulcanized saw, and with it I agree.
. FTC V. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1043, 13 L.Ed.2d 904 (1965). The majority’s statement that jury inadequacy is not a factor “when the jury is asked to determine only whether a television commercial has made various forbidden representations” is surprising. In Crane Co. v. American Standard, Inc., 490 F.2d 332 (2d Cir. 1973), in considering whether Standard should be accorded a jury trial on the amount of damages recoverable in an “intricate” securities case, Judge Friendly’s opinion for the court stated that “It would be hard to think of tasks less appropriate for performance by a jury . . . . ” 490 F.2d 332, 344. One such “less appropriate” task for a jury would be to decide a question that has, for all practical purposes, taken 11 years of hearings, meetings, litigation, a full-fledged judicial review, discussion and correspondence, and more hearings, plus the unquestioned application of agency expertise, all at great expense to the public treasury, to decide. It is most difficult to see appellants’ claim for a plenary or jury trial as anything other than “the tactics of delay and procrastination” that the Supreme Court tells us have been the hallmark of another industry’s efforts to thwart the regulatory efficacy of another agency. See Weinberger v. Hynson, Westcott & Dunning, 412 U.S. at 626-627.
. K. Llewellyn, The Common Law Tradition —Deciding Appeals 374 (1960), quoted in Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 73 (1st Cir. 1970).
. As to which see, e. g., 4 K. Davis, Administrative Law chs. 29 & 30; 5 U.S.C. §§ 701, 706.
. 380 U.S. at 393, quoting Boyce Motor Lines. Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952).
. The procedures there were not unlike those used during the compliance phase of this case. Compare 12 C.F.R. § 4.12(d) (1967) and 12 C.F.R. § 5.4, with 16 C.F.R. § 3.61 and United States v. St. Regis Paper Co., 355 F.2d at 697.
. Nothing in the Camp Court’s reference, 411 U.S. at 142, to its decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), is to the contrary. In Overton Parh, the Court made clear that, under the Administrative Procedure Act, de novo review is authorized only “when the action is adjudicatory in nature and the agency fact-finding procedures are inadequate . . . [or] when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action.” Id. (emphasis added).
. It might be argued that Camp is irrelevant to the question here because review there is based on the Administrative Procedure Act and that it would be inappropriate *455to import into the Federal Trade Commission Act concepts of review that are of general applicability. While any such “borrowing” must of necessity be done with great care, I see no reason why it cannot be done as long as the result is consistent with anti furthers the purposes of the Federal Trade Commission Act. Moreover, it is not as if the Administrative Procedure Act sprang into life full-blown like Minerva; rather it was the embodiment of an extensive structure of administrative law which the courts and commentators had been constructing, albeit with some confusion and inconsistency, for several decades. As previously noted, see note 12 and accompanying text supra, at least one federal court has asserted jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 704, to review the FTC’s rejection of a compliance report submitted by a party subject to a valid cease and desist order. Floersheim v. Weinburger, 846 F.Supp. at 955. That court took jurisdiction on the basis that an order of the FTC issued in the compliance phase “may have the effect of a supplemental Cease and Desist Order without the benefit to the petitioner of judicial review.” Id. Passing the question of the validity of the district court’s assertion of jurisdiction, it is still noteworthy that the court sharply restricted its review in a § 45 (l) proceeding:
Review here is confined to a determination whether substantial evidence on the entire record . . . supports the Commission’s response to the Report of Compliance so that the response cannot he said to have been arbitrary or clearly wrong.
Id. at 957 (emphasis added). In a penalty action based on the Floersheim, violations would not that action be res judicata?
. See note 14 supra; cf. CIBA Corp. v. Weinburger, 412 U.S. at 644.
. Appellants elaborate on the true purpose of this plenary trial by suggesting that the Government has an obligation at this stage in the proceedings to present “experts in advertising, surveys of viewers, or poll or sample evidence.” Brief for Appellants at 37. Passing the fact that the law of this case is that the FTC is under no obligation at any time to take a “random sample,” Williams I, 881 F.2d at 890, I am struck by the trial envisioned by appellants and the statement by the majority that deciding the question whether these 11 commercials make “forbidden” representations is a rather easy one after all and quite appropriate for a jury. Maybe my brethren saw something in the commercials we viewed that I did not, but I was impressed by my lack of expertise on the subject of meaning and deceptiveness.
. Appellants were prohibited, inter alia, from:
1. Disseminating or causing to be disseminated by means of the United States mails or by any means in commerce, as “commerce” is defined in the Federal Trade Commission Act, any advertisement
(b) which represents directly or by implication that the preparation is a generally effective remedy for tiredness, loss of strength, run-down feeling, nervousness or irritability;
(c) which represents directly or by implication that the preparation is an effective remedy for tiredness, loss of strength, run-down feeling, nervousness or irritability in more than a small minority of persons experiencing such symptoms;
(d) which represents directly or by implication that the use of such preparation will be beneficial in the treatment or relief of tiredness, loss of strength, run-down feeling, nervousness or irritability, unless such advertisement expressly limits the claim of effectiveness of the preparation to those persons whose symptoms are due to an existing deficiency of one or more of the vitamins contained in the preparation, or to an existing deficiency of iron or to iron deficiency anemia, and further, unless the advertisement also discloses clearly and conspicuously that: (1) in the great majority of persons who experience such symptoms, these symptoms are not caused by a deficiency of one or more of the vitamins contained in the preparation or by iron deficiency or iron deficiency anemia; and (2) for such persons the preparation will be of no benefit;
(e) which represents directly or by implication that tiredness, loss of strength, run-down feeling, nervousness or irritability are generally reliable indications of iron deficiency or iron deficiency anemia
In re J. B. Williams Co., FTC No. 8547 (Nov. 24, 1967) (modified order to cease and desist).
. Appellants’ use of the affirmative disclosure, “The great majority of tired people don’t feel that way because of iron poor-blood, and Geritol won’t help them,” in commercials run prior to the 11 commercials before this court was rejected as insufficient *457by the FTC in an opinion handed down on December 2, 1968. In re J. B. Williams Co., FTC No. 8547 (Dec. 2, 1968). That decision is not subject to challenge here, but is part of the compliance phase record that was appropriately before the court below and is before this court on appeal.
. The Sixth Circuit described the affirmative disclosure provisions as being the “main thrust” of the FTC’s order, Williams I, 381 F.2d at 888. Given this interpretation of the order, it can fairly be said that adoption of a strategy that totally ignored the “main thrust” of the order would necessarily incur a greater risk of noncompliance unless radical changes were made not only in the apX>earance but in the substance of the commercials themselves.
. See In re J. B. Williams Co., FTC No. 8547 (Dec. 2, 1968) at 7.
. The stage directions and text of this commercial are as. follows:
1. MS ON TED MACK IN LIBRARY, STANDING NEXT TO LIGHT BOX.
HE FLIPS SWITCH, LIGHTING UP LEFT HALF OF SHADOW BOX TO SHOW BAD BLOOD CELLS AND TITLE: “IRON-POOR BLOOD BEFORE GERITOL.”
2. DISSOLVE TO FILM CLIP OF “POOR” & “RICH” CELLS. IN THIS SEQUENCE WE WILL USE OUR FILM OF THE BLOOD CELLS FRAMES 2 AND 3.
3. CUT BACK TO SHOW MACK STANDING BY LIGHT BOX. HOLDS UP BOTTLE OF TABLETS.
4. CUT TO TWO BOTTLES, BACK TO MACK.
5. TITLE: “TWICE THE IRON IN A POUND OF CALF’S LIVER.”
6. CUT TO BOTTLES SHOT. TITLE: BUILDS IRON POWER FAST.
1. MACK: (O.C.): Hello, I’m Ted Mack. Your blood-stream has been called your lifeline. Look! You could have iron-poor blood cells like these . . . pale, few in number, badly shaped.
2. If that’s so, take Geritol to build more blood cells . . . better shaped . . . rich in iron . . . like these.
3. There’s no finer, more effective way to build iron-rich, red blood than with Geritol.
4. Geritol-iron enters your bloodstream fast carrying its blood-building power to every part of your body.
5. Just 2 Geritol tablets or two tablespoons of Geritol liquid contain twice the iron in a pound of calf’s liver.
6. Take Geritol. It builds iron power in your blood fast! Geritol really works!
. See notes 12 & 33, supra.
. The commercials involved in counts 2-4 are set out in the appendices to the district court opinion, Williams II, 354 F.Supp. at 554-556; the similarities between those three commercials and the commercial in count 1 are such that they can be considered under the same analysis that applies to count 1. The word “power” is the key to the discussion of all four.
. “To say that Geritol builds power in your blood is the effective equivalent of saying that Geritol builds power in you.” Id. at 537.
. The argument might be made that we do violence to the standard rule relating to summary judgment that a court must draw the inference most favorable to the party opposing the motion, and the majority’s reference to this rule seems to put the argument in those terms. But this argument is based on the erroneous assumptions that the court in a § 45(1) proceeding has been given the authority to draw the “most likely” inference in the first place and that the Government must show, to prevail on its motion for summary judgment, that no other reasonable inferences might be drawn. As demonstrated in the text above, neither of these assumptions is true. The Supreme Court has recently had occasion to comment on the increased flexibility of the use of the summary judgment procedure in a case involving review of an administrative decision where no jury trial right obtained. See Weinburger v. Hynson, Westcott & Dunning, 412 U.S. at 621-622.
. Again, the fact that this “finding” was not made after formal hearings is completely irrelevant unless appellants can make an argument that such denial rises to the level of violation of constitutional due process, as to which see note 14 supra.
. The majority’s opinion at footnote 23 states perfunctorily that “the FTC’s assertion that use of this word [power] was a violation did not make it so ...” amounts to a complete negation of agency expertise in the compliance phase of the proceedings and is a substitution of judgment on a mixed question of law and fact. If a court is dissatisfied with the reasoning, or lack of it, tendered by an agency to support its findings where only informal proceedings have been utilized to produce a record, that court has the power to demand *459such further evidence as is required for the execution of the court’s limited responsibilities. See Camp v. Pitts, supra.
. To have “iron-poor blood,” as an abstract proposition, would seem to have little or no meaning other than that condition might be thought by the layman suffering from it to affect his life through the symptomatic expression of that condition. This is not to say that some people might not be “sad” merely because a label had been attached to them as the result of a medical examination (which is presumably the only way one would be made aware of one’s “condition”). It is to say that the layman’s focus is apt to be on the symptoms of the underlying condition rather than on the condition itself. As has been said, “The physician may . need to exert the full prestige of his position to induce an asymptomatic individual to alter his habits . . or to follow a therapeutic program throughout the rest of ids life.” Harrison’s Principles of Internal Medicine 7 (6tli ed. 1970). It goes without saying that questions of effect on the viewing public long subjected to deceptive advertising by a particular advertiser are best resolved by the PTC on the basis of its intimate knowledge of and experience in such matters.
. Appellants’ claim that they thought the “sad-glad” theme would be acceptable to the PTC is quite curious in light of the PTC’s prior decision, see note 39 supra, which went out of its way to point out that the “before-and-after” technique employed by appellants was considered to be in violation of the order. App. at 58-59. This finding has never l>een challenged l>y appellants, and is one that should be taken into consideration by the district court and this court in judging how close these commercials came to the “border line” of the PTO order. Even in the de novo review engaged in by the majority the December, 1968, decision is relevant.
. ' With respect to counts 5-9, the majority argues that the conclusion of the district court represents only “a possible inference [but] by no means the only one.” Supra at 3180. Under the logic of the majority opinion, as discussed supra, an advertiser would always escape penalties for violation of a cease and desist order if more than one plausible inference could be drawn from a given commercial. This argument is untenable.
. Tlie logic in the majority’s reliance on the certification in this regard but in no other is beyond my capacity to follow.
. While the FTC’s special expertise may not be raised as a barrier inhibiting . . . judicial review ... it does and should inhibit the notion that a cowrt may be injected into the pertinent subject-matter directly, without the benefit of FTC consideration.
Holloway v. Bristol-Myers Corp., 485 F.2d at 998 (footnote omitted) (emphasis added).