Investment Company Institute v. Camp/Dissent Harlan

Mr. Justice HARLAN, dissenting.

The Court holds that the Investment Company Institute has standing as a competitor to challenge the action of the Comptroller of the Currency because Congress 'arguably legislated against the competition that the petitioners sought to challenge, and from which flowed their injury.' The ICI, says the Court, is entitled to prevail because 'Congress did legislate against the competition that the petitioners challenge.' Ante, at 620, 621 (emphasis added). I understand the Court to mean by 'legislated against the competition' not only that Congress prohibited banks from entering this field of endeavor, but that it did so in part for reasons stemming from the fact of the resulting competition. See ante, at 631, 634, 636-638. However, the Court cannot mean by this phrase that it was Congress' purpose to protect petitioners' class against competitive injury for, as all three judges on the court below agreed, neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history evidences any congressional concern for the interests of petitioners and others like them in freedom from competition. Indeed, it appears reasonably plain that, if anything, the Act was adopted despite its anticompetitive effects rather than because of them. Cf. ante, at 630, 636.

This being the case, the discussion of standing in Hardin v. Kentucky Utilities Co., 390 U.S. 1, 5-6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787, 792-793 (1968), is directly in point:

'This Court has, it is true, repeatedly held that the     economic injury which results from lawful competition cannot,      in and of itself, confer standing on the injured business to      question the legality of any aspect of its competitor's      operations. Railroad Co. v. Ellerman, 105 U.S. 166, 26 L.Ed. 1015 (1882); Alabama Power Co. v. Ickes, 302 U.S. 464, 58     S.Ct. 300, 82 L.Ed. 374 (1938); Tennessee Power Co. v. TVA,     306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Perkins v.     Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108     (1940). But competitive injury provided no basis for standing      in the above cases simply because the statutory and      constitutional requirements that the plaintiff sought to      enforce were in no way concerned with protecting against      competitive injury. In contrast, it has been the rule, at     least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), that when     the particular statutory provision invoked does reflect a      legislative purpose to protect a competitive interest, the      injured competitor has standing to require compliance with      that provision.'

I do not believe that Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Arnold Tours v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970), require the opposite result from the one suggested by this passage from Hardin. Data Processing held that, aside from 'case-or-controversy' problems not present here, the crucial question in ruling on a challenge to standing is 'whether the interest sought to be protected by the complainant is arguable within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' 397 U.S., at 153, 90 S.Ct. at 830. That question was resolved in favor of the data processors because '§ 4 (of the Bank Service Corporation Act) arguably brings a competitor within the zone of interests protected by it.' Id., at 156, 90 S.Ct., at 831. In Arnold Tours the Court observed that it was again dealing with § 4 of the Bank Service Corporation Act, and that '(n)otheing in the (Data Processing) opinion limited § 4 to protecting only competitors in the data-processing field.' 400 U.S., at 46, 91 S.Ct., at 159. Plainly these cases provide little support for the Court's conclusion here that competitors, as such, have standing under the Glass-Steagall Act as well.

The Court's holding-that if Congress prohibited entry into a field of business for prasons relating to competition, then a competitor has standing to seek observance of the prohibition-has a surface appeal, but, so far as I can see, no sound analytical basis. Certainly none is offered. In any event, it appears to me that our prior decisions, particularly Hardin, require the conclusion that the petitioners in No. 61 lack standing to challenge the Comptroller's action. While I would not foreclose the possibility that those cases should be further modified in some respect, the Court has not undertaken to reexamine them, and I deem it inappropriate for me to do so as a single Justice.

The view that I take with regard to petitioners' standing in No. 61 makes it unnecessary for me to reach the merits in that case, but it does require me to rule on the contentions made in No. 59. Like Mr. Justice BLACKMUN, post, at 645, I find lengthy discussion of this topic superfluous. At issue is the propriety of the action of the Securities and Exchange Commission in increasing from two to three the number of seats open to bank officers on the five-man committee which serves as a board of directors of the account. Substantially for the reasons given by the judges of the court below, 136 U.S.App.D.C. 241, 249-253, 266, 420 F.2d 83, 91 95, 108, I am of the opinion that the Commission did not abuse its discretion in determining that the facts of this case made appropriate an exercise of the dispensing power explicitly vested in the Commission by 15 U.S.C. § 80a-6(c).

For the reasons given herein, I would affirm the two judgments under review.