(dissenting):
The issue in this case is whether section 4(b) of the Newspaper Preservation Act of 1970 creates a substantive rule of law requiring all joint newspaper agreements entered into after 1970 to obtain prior approval of the Attorney General. The majority opinion holds instead that the Act requires approval only for those newspapers that wish to take advantage of an antitrust exemption. While I agree that Congress might have been wiser to select this method of optional approval, the statute and my reading of the legislative history convince me that this is not the choice Congress actually made.
The majority opinion concludes that the regulation promulgated by the Justice Department accurately interprets section 4(b). Although great deference is due an interpretation of a statute by the agency or department charged with its enforcement, Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), this deference must yield to patent disregard of the plain and unambiguous language of a statute. See, e.g., Campbell v. Brown, 245 F.2d 662, 666 (5th Cir. 1957); Santiago v. Gardner, 288 F.Supp. 156, 159 (D.P.R. 1968).
Similarly, a change in interpretation by the department, while entitled to some deference, is granted less weight than a longstanding policy dating from passage of the statute. United States v. Healey, 160 U.S. 136, 145, 16 S.Ct. 247, 40 L.Ed. 369 (1895); cf. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616, rehearing denied, 380 U.S. 989, 85 S.Ct. 1325, 14 L.Ed.2d 283 (1965). While the challenged regulation is the first promulgated by the Attorney General in response to the Newspaper Preservation Act, the interpretation appears to conflict with the initial determination of Assistant Attorney General Richard W. McLaren, Antitrust Division, who represented the Department of Justice in the hearings before the House and Senate. Having expressed Justice’s disapproval of the proposed bill, he also noted the Department’s dissatisfaction with the Dirksen amendments:
Senator Dirksen’s bill, as I read it would give antitrust immunity to agreements already in effect, but would make prospective agreements unlawful, unless first approved by the Attorney General on a finding that a failing newspaper was involved.
We oppose this bill for the same reasons that we oppose S. 1520, and for the additional reason that, as a matter of *762principle, we oppose vesting regulatory authority in the Attorney General.
Whether or not particular conduct violates the law, we think, should be decided by the courts and not by a prosecutor.
Hearings on S. 1520 Before the Subcomm. on Antitrust and Monopoly of the Senate Judiciary Comm., 91st Cong., 1st Sess. 297 (1969) (“Senate Hearings”) (emphasis added). Mr. McLaren again stressed this aversion to a regulatory function for Justice in the House hearings. Hearings on H.R. 279 and Related Bills Before the Antitrust Sub-comm. of the House Comm, on the Judiciary, 91st Cong., 1st Sess. 375 (1969) (“House Hearings”). Although this testimony may appear equivocal as it relates to the specific issue of whether the Department of Justice had to approve all new arrangements, it casts a pall over the interpretation given in the regulation. This is particularly true since the original proposed regulation did not limit the filing requirements to newspapers seeking antitrust immunity. See 36 Fed.Reg. 20435, discussed supra. Regardless of whether the challenged regulation represents a change of heart by a department reluctantly exercising its unwanted responsibility or a belated concern with a problem of interpretation not directly faced before, it does not come to us armed with the force of a contemporaneous interpretation of the enforcement department. Furthermore, I am particularly hesitant to accept this interpretation since it conflicts with both the language of the Act and my reading of the legislative history.
As the majority opinion points out, there is no question that the Newspaper Preservation Act was passed in an atmosphere of concern that late-blooming antitrust prosecution by the Department of Justice would unfairly penalize existing joint operating arrangements which had functioned for years without governmental disapproval and, by deterring new arrangements, would compel failing papers of the future to sell to their competitors, thus depriving metropolitan areas of the benefits of competing editorial staffs and policies. The concept of a limited newspaper exemption from antitrust law clearly pervades the Act and the history of its enactment.
Within the statute itself, this antitrust milieu is evident. “Antitrust law” is one of the major terms defined, 15 U.S.C. § 1802(1) (1970), and the legislative annulment of the holding of Citizen Publishing and similar cases pending on the Act’s effective date refers to actions alleging antitrust law violations, id. at § 1804(a), (b). Even the language of section 1803 (section 4 of the Act) emphasizes this relationship. Under subsection (a), certain existing arrangements are declared not “unlawful under any antitrust law,” while subsection (c) assures that the Act will not “exempt from any antitrust law any predatory pricing, any predatory practice, or any other conduct . . . which which be unlawful under any antitrust law if engaged in by a single entity.”
The interpretation issue before us arises because this “unlawful under antitrust law” language does not appear in subsection (b). Instead, the provision states simply that “[i]t shall be unlawful” to enter into new operating arrangements without the prior consent of the Attorney General. Customary rules of statutory construction alone lend credence to the conclusion that use of the term “unlawful under antitrust laws” in all subsections except (b) evidences Congressional intent to distinguish a new type of violation. The legislative history, moreover, convinces me that the broad language employed in section 1803(b) means exactly what it says:1 all new joint operating ar*763rangements which do not receive prior approval are illegal, regardless of whether they would otherwise violate antitrust laws.
The history of the bill reveals a compromise measure aimed at protecting labor and financially competing papers as well as preserving editorial competition. Senator Dirksen, in explaining his proposed amendment to section 4 of the Act, stated:
Sec. 4(b) is a new section which provides that any future joint operating arrangements must have prior Justice Department consent. In this way, the interest of the suburban papers and the unions will be considered by the Justice Department before any new arrangements are authorized.
These two new subsections 4(a) and (b) provide a reasonable compromise for all of the parties involved. The equities of the present situation in the 22 joint operating cities will be maintained; the suburban newspapers and unions will be protected in the future; and a broad exception to the antitrust laws has been avoided.
Senate Hearings at 5 (emphasis added). He later expanded upon this compromise theme:
The new language is designed to offer a means of protection to the small suburban and weekly newspapers, and to newspaper employees and their unions, while preserving the separate editorial voices now flourishing in the 22 cities with joint operating arrangements. It offers a compromise solution which should meet the immediate needs of all involved: those papers now in joint operating arrangements, newspapers which may some day have to turn to joint operations as their only chance for survival; suburban newspapers which compete with the metropolitan papers for advertising revenue; workers who are employed by newspapers; and most significantly, the public interest.
There has been some concern expressed regarding the possibility of new joint operating arrangements being established under the terms of S. 1520, as introduced. There are still some 36 or 37 cities where two or more papers are competing commercially as well as editorially. And, there has been a genuine fear expressed by suburban papers, newspaper unions, and some segments of the public and [sic ] to the dangers inherent if some <5f these other papers were to improperly enter into joint operating arrangements — resulting in what might be a stronger competitive force, the loss of jobs, and, maybe, eventually a loss of independent viewpoints.
This is what I had in mind in proposing Section 4(b). Before any new joint operating arrangements could come into being, the papers involved would be required to come before the Attorney General for his approval. . . . Before authorizing such arrangements in the future, the Department could hear from other interested parties — competing papers, unions, etc. — as well as make its own investigation, in order to be certain that the new arrangement is essential and is justified.
Further, Section 4(b) will act as a brake upon other newspapers which might otherwise prematurely turn to joint operating arrangements, without testing other means of maintaining full commercial and editorial competition.
Id. at 8-9 (emphasis added). See also Remarks of Senator Hruska, 116 Cong.Rec. 2005-06 (1970).
As sponsor of the amendment and a strong supporter of the bill, Senator Dirk-sen was well aware of the competing interests that would be affected by the proposed legislation. Both the Department of Justice and the Federal Trade Commission were strongly opposed to further fragmentation of the antitrust laws. See Senate Hearings at 294-312; House Hearings at 357-403,475-96. In addition, the American Bar Association adopted a resolution echo*764ing this opposition. 116 Cong.Rec. 23143 (1970). While a few local unions associated with existing joint operating arrangements supported the bill, the American Newspaper Guild, the AFL-CIO, the International Typographical Union, the New England Press Association and others in the newspaper industry registered strong disapproval. Compare House Hearings at 19, 42-43, 56-67, 404-13, 427-28; with Senate Hearings at 238-49, 287-90. See also House Hearings at 414-20, 427; 116 Cong.Rec. 23175 (1970). Both newspapers and publishing employees expressed fear that allowing future arrangements would be unduly anti-competitive and would cause loss of jobs. The New England Press Association claimed that the legislation was “designed to prevent this natural change from central city dailies to strong suburban newspapers” and would “do great damage to individual newspaper owners.” House Hearings at 427. William Loeb, publisher of the Manchester Union Leader, cautioned the committee that
[tjhere are thousands of weekly papers throughout the whole United States, and small newspapers, from which [Committee members] have not heard, who are violently opposed to this legislation. Unfortunately they have neither the means nor the association to bring so effectively to bear their views as have the larger newspapers, BUT — and this is the important thing to remember — their total readership is very large indeed.
House Hearings at 510. The Newspaper Guild claimed loss of jobs while the International Typographical Union recounted horror stories of the labor problems encountered under existing arrangements. Senate Hearings at 239, 289-90. These problems had been articulated in greater detail in the 1967-68 hearings on prior newspaper preservation bills. See, e.g. Hearings on H.R. 19123 and Related Bills Before the Antitrust Subcomm. of the House Comm, on the Judiciary, 90th Cong., 2d Sess., ser. 25, at 357-64, 367-422 (1968); Hearings on S. 1312 Before the Subcomm. on Antitrust and Monopoly of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 105-72; pt. 2, at 1022-34; pt. 6, at 2545-68, 2615-23, 2625-52, 2673-97. The Dirksen amendment to section 4 was a clear response to these concerns.
The majority opinion relies heavily on the proviso to the Dirksen amendment which maintained the legal status of joint activities not illegal under antitrust laws existing at that time. Even if this provision would have militated against the absolute requirement of prior approval suggested in the remainder of section 4(b),2 it was rejected by the House and, upon reconsideration, by the Senate. The House Judiciary Committee favorably reported the bill in the form in which section 4(b) now appears. No indication in the report explains why the Dirk-sen amendment was only partially accepted. Senator Hruska, floor manager for the bill upon its return from the House, urged adopting of the House version without having to go to conference. As for the changes, he stated only:
The other body, just last week, modified the two amendments somewhat and effected other amendments which did not go to the substance of the bill.
116 Cong.Rec. 24434 (1970) (emphasis added). While the statement intimates that the House amendments were minor, both supporters and opponents of the bill recognized the major substantive changes created by the House. One alteration minimally acknowledged by Senator Hruska was the fact that the House bill created a far more limited exemption than had the Senate version.3 Since this substantial change was brushed off lightly by Senator Hruska, re*765liance on his statement that the Dirksen amendment had been modified “somewhat” seems risky. I would agree rather with the thoughtful evaluation by the district court that deliberate deletion of the status quo proviso points more reasonably to a broad requirement of prior approval for all future arrangements. This seems particularly true since, in spite of vociferous arguments that final settlement in the Tucson case proved that current antitrust law allowed most, if not all, of the joint operating arrangements needed for failing papers, proponents of the bill still insisted upon the exemptions provided in section 4. See, e. g., 116 Cong.Rec. 1802-03 (1970). In order to maintain these exemptions, I believe, proponents accepted further limitations in section 4(a) and strengthened the prior approval of section 4(b) to assuage the fears of those who opposed the bill. Excerpts from the House debate illustrate the quid pro quo nature of section 4(b).
Mr. McCulloch. ... In addition, the prospective application of this exception now is carefully circumscribed by requiring the consent of the Attorney General for any future joint newspaper arrangements.
116 Cong.Rec. 23148 (1970).
Mr. Railsback. . . . Recognizing the historic inactivity on the part of the enforcement agencies and the reliance upon such inactivity by various newspapers in effecting the currently existing joint newspaper operating arrangements, the bill provides a relatively more liberal standard for determining whether the antitrust exemption applies to such arrangements. Nevertheless, prospective availability of the exemption has been sharply restricted by requiring the consent of the Attorney General for any future joint arrangement. .
Id. at 23154. See also remarks of opponent Mr. Edwards of California:
The [House] Judiciary Committee did improve the Senate-passed version by making it more difficult for new joint agreements providing for profit sharing and price fixing to come into existence. Any new agreements must be approved in advance by the Attorney General.
Id. at 23167. I believe that, in this compromise setting, the House deletion of the proviso reflects a desire to protect even more completely the labor groups and suburban newspapers whose interests had sparked Senator Dirksen’s amendment.
The majority also argues that if Congress had intended a new standard of liability for all future joint operating arrangements it would have provided civil or criminal penalties, whereas the Newspaper Preservation Act has no penalty section. Although I readily agree that this omission may indicate a lack of thorough planning by Congress, it does not rebut the clear directive that newspapers must obtain written consent before implementing a joint operating arrangement. The Act, applying as it does to federal antitrust law, may have created a new specific antitrust violation subject to the penalty and enforcement provisions of the Federal Trade Commission Act, the Sherman Anti-Trust Act, and the Clayton Act. See, e.g., 15 U.S.C. §§ 3-4, 15-15a, 21, 25, 26 (1970); §§ 1-2,45, 50, as amended (Supp. IV 1974). The violation may form the basis for implying a right for the Attorney General to seek injunctive relief. Perhaps civil remedies, as suggested by appellee, Appellee’s Br. at 18, are appropriate. As the trial court properly noted, this suit challenging the interim regulation does not present the issue of what, if any, remedy is to be applied. 381 F.Supp. at 52-53. If and when that question arises, the court will be able to apply the recent guidelines of the Supreme Court as to implied remedies. See, e.g., Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); National Railroad Passenger Corp. v. National Association of Railroad Passengers (“Amtrak”), 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646, rehearing denied, 415 U.S. 952, 94 S.Ct. 1478, 39 L.Ed.2d 568 (1974); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). See also Comment, Pri*766vate Rights of Action Under Amtrak and Ash: Some Implications for Implication, 123 U.Pa.L.Rev. 1392 (1975); Comment, The Phenomenon of Implied Private Actions Under Federal Statutes: Judicial Insight, Legislative Oversight or Legislation by the Judiciary?, 43 Fordham L.Rev. 441 (1974). I observe only that when Congress has in the past declared conduct illegal without prescribing a remedy, the courts have shown themselves capable of fashioning enforcement procedures to carry out the legislative scheme. See, e.g., Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (implying equitable remedy from 42 U.S.C. § 1982 (1970) which guarantees to all citizens the right “enjoyed by white citizens” to own or dispose of property).4 There is no reason to believe that the judiciary would be unable to apply this same skill in carrying out the dual policies of the Newspaper Preservation Act.
The majority opinion also points out that the Act’s very broad definition of a joint operating agreement5 covers many arrangements which would not have been illegal under prior antitrust laws, e.g., using joint production facilities without fixing advertising or circulation rates. The standard by which the Attorney General must gauge arrangements submitted for his approval is stringent: he must “determine that not more than one of the newspaper publications involved in the arrangement is a publication other than a failing newspaper, and that approval of such arrangement would effectuate the policy and purpose of this chapter.” 15 U.S.C. § 1803(b) (1970). The Justice Department argues that since many non-anticompetitive arrangements could not be approved under this test, Congress could not possibly have intended this result.
The compromise measure selected by the legislature is an acknowledged deviation from basic antitrust principles. It is not unthinkable that, just as Congress exempted certain newspaper profit pooling and price fixing arrangements from the antitrust laws, it also subjected the industry to more stringent requirements for any cooperative ventures. As pointed out frequently during discussion of the bill, Congress had already carved out special antitrust rules for banks, agricultural cooperatives, and professional sports. See, e.g., 116 Cong.Rec. 1789 (1970).
Of course, it is equally possible that in subjecting all arrangements to approval, thus protecting unions and other newspapers from adverse results, Congress simply failed to protect another interest which, if considered under less pressing time strictures, it might decide to foster. Our function in interpreting the statute, however, is not to second guess what Congress would decide today if this problem of the industry were presented for legislative resolution.
*767Cardozo put it this way: “We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take this statute as we find it.” . . . An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however much later wisdom may recommend the inclusion.
Frankfurter, supra note 1, at 534. The court must interpret the Act according to its terms and its history, relying on Congress to remedy legislation that is overinclusive or under-reflective.
In passing the Newspaper Preservation Act, Congress attempted to balance the competing interests of what it perceived as a threatened newspaper industry against the dangers of anticompetitive practices. The highly controversial bill, opposed by national unions and organizations of suburban newspapers, was amended numerous times to allay the fears of its opponents that a few newspapers would be benefited at the expense of the entire industry. The prior approval concept, presented first in the Dirksen amendment, introduced an element of governmental supervision to limit the use of future arrangements. Congress may not have considered all the ramifications of imposing this requirement on every future agreement regardless of its compliance with other antitrust laws, and legislators eager to prevent private litigation against existing arrangements may have failed to provide adequately for enforcement of the compromise measure. These unfortunate possibilities, however, do not change the fact that Congress appears to have selected a scheme wherein all agreements would be subject to prior approval. I must conclude with the district court that the expansive language of section 4(b), “whether careless or calculated,” is clear and supported by legislative history. For these reasons I respectfully dissent.
. This circuit has rejected a plain meaning rule which forbids consideration of legislative history when the language of the statute is clear and unambiguous. See, e.g., March v. United States, 165 U.S.App.D.C. 267, 506 F.2d 1306, 1313-15 (1974). See also Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum.L.Rev. 1299 (1975). As Justice Felix Frankfurter once stated, “In the end, language and external aids, each accorded the authority deserved in the circumstances, must be weighed in the balance of judicial judgment.” Frankfurter, Some Reñections on the Reading of Statutes, 47 Colum.L.Rev. 527, 544 (1947). See also Train v. Colorado Public Interest Research Group, - U.S. -, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976).
. It is conceivable that this proviso might have been intended to expand the Attorney General’s power to approve arrangements not conflicting with general antitrust principles rather than to limit the types of arrangements which must obtain approval.
. The House Committee bill also limited the section 4(a) exemption for existing joint operating arrangements by requiring terms of a renewal or amendment to be filed with the Department of Justice. This language, along with an additional floor amendment clarifying that arrangement amendments may not add additional newspapers to the joint operation, appears in the Act as adopted.
. We note also the many instances where courts have fashioned private remedies from regulatory legislation prescribing only governmental enforcement. See, e.g., J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (private right of action under section 14(a) of the Securities Exchange Act of 1934); Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (2d Cir. 1956) (private remedy for passenger racially discriminated against in violation of section 404(b) of the Civil Aeronautics Act). These cases would be particularly relevant if a later court should determine that section 1803(b) creates a special antitrust violation under the general antitrust laws.
. (2) The term “joint newspaper operating arrangement” means any contract, agreement, joint venture (whether or not incorporated), or other arrangement entered into by two or more newspaper owners for the publication of two or more newspaper publications, pursuant to which joint or common production facilities are established or operated and joint or unified action is taken or agreed to be taken with respect to any one or more of the following: printing; time, method, and field of publication; allocation of production facilities; distribution; advertising solicitation; circulation solicitation; business department; establishment of advertising rates; establishment of circulation rates and revenue distribution: Provided, That there is no merger, combination, or amalgamation of editorial or reportorial staffs, and that editorial policies be independently determined.
15 U.S.C. § 1802(2) (1970).