pals to obtain access to any of the power directly from Yankees, was not in the public or consumer interest. Special reliance was placed by Municipals upon the requirements of Section 10(b)(1) of the Act, note 2, supra.

The Commission denied Municipals' request for an evidentiary hearing, deeming Municipals presented no issue of fact relevant to the proceedings. The Commission concluded that no findings adverse to approval were required under Section 10(b)(1). It viewed Municipals' position as a request that approval of the acquisitions be conditioned so as to permit Municipals an opportunity to obtain directly some of the power of Yankees and held this was not necessary in the public interest.

Municipals petition this court for review under Section 24(a) of the Act, 15 U.S.C. § 79 x (a). While Municipals suggest that in the absence of the conditions they seek the acquisitions should not be approved, their basic position, as the Commission noted, is that the acquisitions should be approved in a manner which would give Municipals an opportunity on reasonable terms to obtain access to this new lower-cost power. They contend for this on the basis primarily of the competitive considerations involved in the ultimate issue of the public and consumer interests, synthesized in Section 10(b)(1) of the Act interpreted in light of the public policy represented by the federal antitrust laws.

This is the crux of the case, for if we lay aside the problem arising from Section 10(b)(1), the findings and conclusions of the Commission are well supported. These include findings (1) requisite to exemption under Section 6(b) from requirements of Section 6(a) of the Act that the issue and sale be solely to finance the business and are authorized by the State Commissions; (2) pursuant to Rule 50(a) (5) promulgated under the Act respecting the inappropriateness of competitive bidding; (3) under Section 10(b)(2) and (3) respecting the fairness and reasonableness of the consideration, or that the acquisitions will not be detrimental to the public interest or the interest of investors or

consumers; (4) under Section 10(c)(2) that the acquisition will serve the public interest by tending towards the economical and efficient development of an integrated public utility system. The following additional findings of the Commission, phrased here in reference to Vermont Yankee, which we accept, are also helpful in placing the problem in its proper setting:

Yankee will function only as a generating company
which will sell power to its sponsors in proportion to
their respective stock ownership. The large size and
the proven design of the plant are expected to result
in generating costs lower than those of conventional
steam electric plants in the New England area. The
sponsor companies are already interconnected and
coordinated in their operations through the New
England transmission grid. The present transmission
facilities, plus the planned additions to the grid, which
will increase its capacity and connect Yankee to the
grid, will be adequate to assure each sponsor company
the equivalent of its entitlement to power generated at
the plant at economical transmission costs. Each
sponsor will be able to absorb and integrate its share
of Yankee's power output into its own load require-
ments. In view of the existing state of the art of
generation and transmission and the economic advan-
tages of the proposed arrangements, Yankee may be
deemed to be within the same area or region as each
sponsor applicant, and there does not appear to be
any impairment to the effectiveness of regulation or
the advantages of localized management.

We come now more directly to Section 10(b)(1). The Commission stated its position as follows:

We have considered the applicability of Section 10(b)(1) in prior situations involving the joint ownership of a nuclear generating plant by two or more holding companies. We concluded that such arrangements do not create a relationship detrimental to the public interest or the interest of investors or consumers where, as here, the sponsoring companies do not acquire any control over each other by virtue of the proposed transactions, and the limited interlocking relations and arrangements embraced by the project

are the normal requirements of a joint operation by
the sponsoring companies to secure the advantages of
large-scale generation to meet their power needs."
Under the circumstances we do not consider the own-
ership of Yankee and the related arrangements as
having the consequences proscribed by Section 10(b)
(1). As noted no sponsor will acquire any control
over any other sponsor by virtue of the proposed
transactions, and each sponsor will be free, insofar as
the other sponsors are concerned, to use or resell its
share of the Yankee power output.

"Yankee Atomic Electric Company, 36 S.E.C. 552, 562 (1955); Connecticut Yankee Atomic Power Commission, 41 S.E.C. 705, 709 (1963). See also Electric Energy, Inc., 38 S.E.C. 658, 665 (1958).

The Commission also stated that approval would not involve any competitive consequences of a nature to require adverse action in the public interest, and concluded its opinion as follows:

[W]e conclude that no adverse findings are required under Section 10(b)(1) of the Holding Company Act and that it is not necessary or appropriate in the public interest to impose the conditions requested by Intervenors. We shall also deny Intervenors' request for an evidentiary hearing, since no issue of fact relevant to this proceeding has been presented by the Intervenors.

Although the Commission explicitly recognized that consideration of anti-competitive consequences was a factor relevant to the statutory standard of public interest, it appears to have approached this factor by interpreting Section 10(b)(1) in light of the economic evils and types of control which gave rise to the legislation Congress passed in 1935. For this restrictive view of Section 10(b)(1) the Commission relied in part upon the legislative evolution of the language "concentration of control of public utility companies" in that section. Perhaps this choice of language. by Congress justifies the Commission in not feeling as free as it otherwise might in giving weight to the federal anti

trust policies. Nevertheless Section 10(b)(1) must take significant content from those policies. In a case involving Section 11(b)(1) of the Act, in considering the effect of the terms of Section 1(b) that when subsidiary publicutility companies enter into transactions in which evils. result from "restraint of free and independent competition," the Supreme Court stated that the theme of elimination of such restraint "runs throughout the Act." S.E.C. v. New England Electric System, 384 U.S. 176, 183; and in California v. F.P.C., 369 U.S. 482, 484-85, in passing upon the validity of merger transactions under Section 7 of the Natural Gas Act, the Court stated that evidence of antitrust violations is plainly relevant because part of the content of "public convenience and necessity," terms used in that section, is found in the laws of the United States. By like reasoning violations of the antitrust laws bear upon "the public interest or the interest of investors or consumers," terms used in Section 10(b)(1) of the Act now before us. And see the extensive review of the over-all problem in Northern Natural Gas Co. v. F.P.C.,

U.S.

App. D.C. 399 F.2d 953. We note also that Section 7 of the Clayton Act 10 provides that nothing therein shall apply to transactions consummated pursuant to authority given by the Securities and Exchange Commission in the

8Section 10(b)(1) had its genesis in the Report of the National Power Policy Committee forwarded by the President to the Congress. H.R. Doc. No. 137, 74th Cong., 1st Sess. (1935); S. Rep. No. 621, 74th Cong., 1st Sess. (1935). One of the Policy Committee recommendations, adopted in the initial bills, was that the Commission should have the power to prevent acquisitions that would "tend to create monopoly or restraint of trade in the exercise of control of public-utility companies." See Section 9(b)(1) of H.R. 5423, 74th Cong., 1st Sess. (1935) and Section 10(b)(1) of S. 1725, 74th Cong., 1st Sess. (1935). During the hearings this provision was modified and, as enacted, Section 10(b)(1) was altered to read as it does now. See note 2, supra.

915 U.S.C. § 717f. 1015 U.S.C. § 18.

exercise of its jurisdiction under Section 10 of the Public Utility Holding Company Act. This is indicative of a congressional intent that the Commission take into account the policies underlying the Clayton Act in deciding whether to approve a stock acquisition.

Though the purpose of Congress was to remedy economic evils inherent in the control of utilities by holding companies, the terms of Section 10(b)(1) do not by definition limit the prohibited control to a particular method. The assertions of Municipals as to which they seek an evidentiary hearing point to an increasing concentration in Massachusetts and, indeed, in New England, of control over low cost electric power through nuclear generating plants. Municipals are excluded from the opportunity to have access on reasonable terms to this power at its source, where it is available solely to the sponsoring companies. Municipals assert that this is due to an intentional course of conduct designed to increase the control of sponsors over the industry in the area and to foreclose opportunities to Municipals. While the areas respectively served by Municipals and the sponsors do not territorially overlap, and are regulated by local agencies, sponsors or their affiliates compete with Municipals to supply power for new enterprises coming into the areas. Moreover, Municipals charge before the Commission in more or less classical antitrust terms that applicants have participated in combinations or conspiracies by which Municipals have been excluded from participation in regional planning of bulk generation and transmission and believe that the present projects emerged from such regional planning activities. This aside, and perhaps closer to the issue of actual concentration of control, are Municipals' representations that sponsors, in combination with others, are obtaining a monopoly in New England over electric generation through systematic exclusion of Municipals and other small electric distributors from "participating in or purchase of power from" nuclear generators in New England, and that sponsors are believed to be working together to prevent Municipals from obtaining any