United States v. Concentrated Phosphate Export Association/Dissent White

by Byron White

United States Supreme Court

393 U.S. 199

United States  v.  Concentrated Phosphate Export Association

 Argued: Oct. 24, 1968. --- Decided: Nov 25, 1968

Mr. Justice WHITE, with whom Mr. Justice STEWART joins, dissenting.

The majority holds today that concentrated phosphate shipped from an American firm in Florida to the Republic of Korea, which has itself solicited bids on the world market, ^[1] are not 'exports' within the meaning of the Webb-Pomerene Act, § 1, 40 Stat. 516 (1918), 15 U.S.C. § 61. The United Statessupplied the funds which Korea used to pay for the purchases, and retained limited power to control their expenditure. Korea was not obliged to repay the funds to the United States directly, but it was required to set aside proceeds of resale of the phosphate as 'counterpart funds' to be spent in ways prescribed by the United States. ^[2] This decision conforms neither to the plain meaning of the word 'exports' nor to the underlying purposes of the Webb-Pomerene Act.

The statute defines 'export trade' as trade in goods 'exported, or in the course of being exported from the United States.' § 1, 15 U.S.C. § 61 (1964), case, more than 800,000 tons of concentrated phosphate were shipped directly from the association in Florida to Korea. In any ordinary sense, these 'goods' were 'exported from the United States.' Even the AID regulations refer to receiving countries as 'importers' and to these transactions as 'exports.' E.g., 22 CFR § 201.42 (1968). ^[3] And the District Court found that AID encouraged, or at least tolerated, bidding by Webb-Pomerene associations in these transactions. Nor does the exclusion from the definition of exports of goods sold 'for consumption * * * within the United States,' § 1, 15 U.S.C. § 61, discussed by the majority, have any application to this case. The parties have so stipulated, since the phosphate was obviously to be consumed in Korea. And there is no contention here that purely domestic trade was 'restrained' in any way, or that prices in it were 'enhanced' or 'depressed.' ^[4] Given the clarity of the statute, there is no need to resort to legislative history. E.g., Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64, 73 S.Ct. 580, 583, 97 L.Ed. 821 (1953).

But even the legislative history lends no support to the majority, and indeed leads to a contrary conclusion. The majority asserts that Congress thought it could increase American exports by ending competition for foreign shipments among American firms without impairing domestic competition. That is correct. Congress recognized that trade in foreign nations is not ringed about with the antitrust restrictions which keep domestic industry competitive. Congress found foreign trusts to have substantial advantages over their American competitors. They can offer to extend credit and fill large orders which no single American firm could fill; they can maintain staffs to keep in touch with foreign demand more cheaply than any single American seller; and their advertising and distribution costs are generally lower than those of separate American firms. ^[5] Having made these findings, Congress concluded that American firms should be allowed to combine to achieve lower costs, lower prices, and more comprehensive and effective service, in order to be able to compete on an equal footing for foreign shipments.

In a transaction such as this, where American goods compete with foreign goods for foreign consumption, Congress had no objection to the formation of American associations to achieve lower prices and compete with foreign suppliers. That such competition was involved here is graphically illustrated by the fact that in most of the Korean purchases involved in this case ^[6] foreign bidders were successful in capturing at least part of the market, and the Government admits that foreign competition was never absent. It was precisely to enable American firms to meet such competition that the Webb-Pomerene Act was passed.

Moreover, it is no kindness to the American taxpayer to carve out an exception forbidding the formation of Webb-Pomerene associations in this case, given the assumptions on which the Act was passed. Congress specifically discussed phosphate as a commodity where American associations were necessary in order to achieve the savings and organization which would enable them to compete with foreign cartels in price and service. ^[7] Without Webb-Pomerene associations, Congress concluded that American firms could not underbid their foreign competitors. Even in this case, with the Association bidding, foreign cartels captured 18% of the business. Under the majority opinion, American taxpayers would be paying out more American dollars to buy from foreign cartels goods which could have been obtained more cheaply from American associations employing American workers.

Congress explicitly found that Webb-Pomerene associations would lead to lower, not higher, prices in competition with foreign suppliers. It was on this basis that joint efforts by American companies in the export trade were exempted from the antitrust laws. Those charged with the duty faithfully to execute the laws should honor that exemption, not challenge it with facile assertions that the Act was 'chauvinistic.' Certainly this Court is not equipped or empowered to challenge either the exemption or the assumptions on which it rests.

To carve out an exception from the word 'export' based on this Court's notions of sound economic policy is to contradict the plain words of the statute and the congressional judgment that American associations were necessary to lower prices and combat foreign competition. If such an exception were ever justified, it would be in a case where not only are Americans paying the bill, but also foreign competition is absent. This is not such a case.

Notes

1. In two of the 11 transactions challenged here, the General Services Administration solicited the bids for Korea, but neither the Government nor the Court finds that distinction significant.
2. These funds were used to support the Korean and American military establishments in Korea and to finance public works. They were generally available to the United States 'as requested.'
3. Indeed, even government statistics relating to balance of payments refer to shipments such as these as 'exports.' E.g., Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 1968, at 669, 801; 15 CFR § 30.1 et seq. (1968).
4. § 2, 15 U.S.C. § 62.
5. See, e.g., S.Rep.No.1056, 64th Cong., 2d Sess. (1917); H.R.Rep.No.1118, 64th Cong., 1st Sess. (1916); Hearings on H.R. 17350 before the Senate Committee on Interstate Commerce, 64th Cong., 2d Sess., 44 (1917).
6. Thirteen phosphate purchases were made by Korea, of which the Government challenges only the 11 to which the AID regulations apply. In those transactions alone, foreign bidders captured 18% of the business.
7. 56 Cong.Rec. 110-111 (remarks of Senator Kellogg).