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The procedures employed by the Commission
in reaching a decision such as this, including
contentions that these procedures have been
unfair and inadequate;

The potential impact of such a joint :
venture on the economy, particlarly

the automobile industry; and

Other relevant trends in the autho
mobile industry.9/

On January 27, 1984, FTC Chairman Miller responsed in a letter to Chairman
Florio, in which Chairman Miller expressed the view that "...there are
obvious potential practical and legal hazards to your appearance at such
a [Subcommittee] hearing before our final decision is rendered." Chairman
Miller requested the postponement of the Subcommittee hearing for about a
month until the Commission reached it final decision. As an alternative,
Chairman Miller requested that the Subcommittee invite the Commission
Staff instead of the Commission to testify:

We believe that a postponement of the hearing
date (or substitution of staff) is required for
two reasons. First, it would avoid the awkward
situation in which we might seem unresponsive
to questions posed by Members of the Subcommittee
when to respond fully might be interpreted as
prejudgment on our part. Second, and far more
important, a postponement (or substitution of
staff) is required in order to avoid even the
appearance of unwarranted influence on our final
decision and potential criticism, however

unjustified, that out final decision was influenced
by participation in your hearing.10/

The letter then outlines a series of judicial decisions, including the Pillsbury case, relating to bias or prejudice of agency proceedings. A separate concurring statement of Commissioner Bailey is attached to the letter in which she explains her support for staff appearance before the

9/ Letter dated January 24, 1984 to FTC Chairman Miller from Chairman Florio. Hachment #3

10/ Letter dated January 27, 1984 to Chairman Florio from FTC Chairman Miller. A Hachment #4

Subcommittee in lieu of Commission appearance. Also attached to the letter

is a dissenting statement from Commissioner Pertschuk, who disagrees with the application of the legal precendent cited by Chairman Miller:

.

The Commission relies on the Pillsbury case
and others to argue that the Commission should
not testify publicly on this matter and that
Congress should not inquire about our decision-
making during the public comment period on the
tentatively accepted consent agreement. Our General
Counsel even suggests that it would be improper
for a Congressional committee to ask a Commissioner
what outside parties he met with in deciding
whether to challenge the joint venture. I cannot
accept our General Counsel's interpretation of
applicable standards. The Pillsbury case dealt
with Congressional hearings on an ongoing adjudica-
tive proceeding, when the Commission was obligated
to consider only evidence presented on the record
under adjudicatory rules. In addition members
of the Congressional committee attached a legal
ruling made by the Commission in the middle of
that adjudication.

In contrast, the GM/Toyota matter is currently
in a public comment proceeding in which any interested
persons, including Congress, can file comments.
Secondly, Chairman Florio has made perfectly clear
that he recognizes that the ultimate decision
on this matter is up to the Commission alone.
When we are not in formal adjudication, but in the
pre-complaint investigational stage, the law requires
only that the agency simply make its own decision
rather than one dictated by Congressional pressure.
We would have to assume that the Committee will
attempt to coerce us-something it says it has no
interest in doing--and that we would cave in
to Congressional pressure -something we have no
intention of doing--to arrive at the conclusion
that the applicable legal standard would be violated.
We can and should assume that Congress and the
Commission will act properly and in a way that can
contribute to public understanding and comment on
our tentative decision, which is, after all the
purpose of the comment period in the first place.
[emphasis in original]11/

11/ Dissenting Statement of Commissioner Pertschuk attached to Letter dated January 27, 1984 to Chairman Florio from FTC Chairman Miller.

Attachment #4"

On January 1, 1984, Chairman Florio sent another letter to FTC

Chairman Miller indicating that the Subcommittee hearings would be
held as scheduled on February 8, despite the concerns and alternatives
to the Commissioners' appearance before the Subcommittee:

I am afraid that neither of these proposals
[postponement or FTC staff appearance] is satisfac-
tory. With all respect, I believe your apprehensions
about testifying before the conclusion of the period
of public comment are based on an inaccurate state-
ment of the law. Moreover, I do not believe your
proposed solution satisfactorily harmonizes the responsi-
bilities of the Commission and the Congress.

Testimony by staff is an inadequate substitute for
that of those ultimately responsible. It is the commis-
sioners who are appointed by the President and accountable
to the public. The public is entitled to their views
without the uncertainty created by hearing the story
second hand. With respect to postponement, I simply
see no valid basis for delaying examination of the
important issues involved. As your letter acknowledges,
the present situation is not parallel to the cases cited,
and the courts have recognized the importance of our
fulfilling our legislative and oversight responsibilities.12/

On February 1, 1984, John D. Dingell, Chairman for the full House Committee on Energy and Commerce sent a letter to FTC Chairman Miller. In the letter Chairman Dingell indicated that he had reviewed the January 27, 1984 letter from Miller to Florio, and asked Chairman Miller to outline "...for me in writing the specific areas of inquiry concerning this matter that you believe could (separately or collectively), if examined by the Subcommittee, lead a court to conclude that the agency's action is

invalid because of improper pressure.

13/

12/ Letter dated January 31, 1984 to FTC Chairman Miller from Chairman Florio. it Hacment #5

13/ Letter dated Feb ́ssy 1, 1987 to FTC, Chairman Miller from

Chairman Dingell.

A Hachment #6

It is out of all these exchanges that the legal issues that are the subject of your inquiry arise. And it is to the legal issues raised directly and indirectly by these communications that we now direct our

attention.

THE CONSTITUTIONAL AUTHORITY FOR CONGRESSIONAL INVESTIGATIONS

The power of the Congress to conduct investigations of goverment operation, enforcement of current laws and other bona fide legislative activities generally subsumed under the category of Congressional oversight is well established, and has long been recognized by the courts.

14/

Even though the Congress has the recognized inherent powers under Article I of the Constitution to conduct legislative investigations, the exercise of these Congressional powers can have a consequential impact upon the legal rights of private parties and upon Federal agencies. Congressional oversight hearings relating to the operation of Federal agencies raise potential legal issues with respect to 1) communications by agency decisionmakers relating to certain pending and prospective proceedings and 2) communications from Members of Congress urging that certain agency actions be taken. Federal court decisions have developed

two closely related principles of law.

First, the questioning of an agency official, regarding the reasons

or rationale for deciding an issue still pending before that official,

14/

Kilbourn v. Thompson, 103 U.S. (1881); McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); and, Barenblatt v. United States, 360 U.S. 109 (1959).

may be an impermissible intrusion into the administrative process if it denies a litigant his due process right to impartiality in the decisionmaking process. The second principle holds that agency action will be struck down where it results, either in whole or in part, from congressional pressure. Although the judicial opinions distinguish these two situations, one fundamental principle appears to be applied in all interference in an ongoing administrative proceeding from members of the legislative branch of government can so infect or influence the proceeding that a court will nullify the decision reached in the tainted process and order the agency to take any appropriate action to ensure reasoned, independent decisionmaking.

cases:

PREJUDICE OR BIAS ON THE PART OF AGENCY DECISION MAKERS

It is well established that agency decisionmakers must be free from bias or prejudice in order to render fair and impartial decisions presented to them under a variety of procedures governing decisionmaking. The need for avoidance of bias or prejudice in connection with any particular pending proceeding arises from concepts of due process under the 5th Amendment of the Constitution and has been articulated by many courts as applicable to various types of agency proceedings.

Generally, there is a presumption that an administrative official is objective and has been "capable of judging a particular controversy fairly 15/

on the basis of its own circumstances."

15/ U.S. v. Morgan, 313 U.S. 409, 421 (1941).

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