Lea amendment of the act defined the substantial evidence rule as not debarring the courts——

from going into the facts to ascertain if there is substantial evidence because there is evidence that is merely colorable, seeming, or merely nominal. It means an honest-to-God review by the court for the purpose of performing its function of protecting the law against the legislative or the executive departments of the Government.

Chairman Lea also stated that "of course the court has a right to review the whole testimony before it, with a view of determining whether or not there is substantial evidence" and that "it is the fundamental or ultimate fact that we are dealing with in deciding what is substantial evidence."

The record also shows that Chairman Lea's interpretation was what the conferees wanted

to go into the record for future consideration by any court if there is a matter of review involved (83 Cong. Rec. 9096-9101 (1938)).

The scope of review of Federal Trade Commission decisions and orders by the United States circuit courts of appeals and the Supreme Court is provided in section 10 (e) of the Administrative Procedure Act, as follows:

So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action.

It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of section 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.

In conclusion, I wish to direct your attention to an article published in the American Bar Association Journal of September 1946, by Congressman John W. Gwynne, entitled "The Architecture of the New Administrative Procedure Act."

Your attention is especially directed to Congressman Gwynne's diagram synopsis of this act in connection with his article. Your. attention is further directed to a subsequent article by Congressman Gwynne in the American Bar Association Journal for January 1948, entitled "Administrative Procedure Act: A Warning Against Its Impairment by Legislation."

In this article, Congress Gwynne calls attention to the responsibility of the bar as well as the Congress for vigilance in seeing to it that the Administrative Procedure Act is not whittled away and impaired by administration, interpretation, or future legislation. This article is specifically applicable to the O'Hara bill. For your information, I will file copies of these articles with the clerk of this committee.

In view of the many years of legal research and work of the American Bar Association which culminated in the enactment of the Administrative Procedure Act and in view of the great interest shown in this

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act and for its success by that association, it seems to me that the views of the association upon the O'Hara bill and its effect upon the Administrative Procedure Act would be very helpful to this committee in determining the merits or demerits of this bill. As a member of the American Bar Association, I have been informed that the association and its administrative law section will submit its impartial views upon this bill, if requested to do so.

The CHAIRMAN. What is the set-up of the counsel? general counsel is the Chief. Who comes next?

I assume the

Mr. CASSEDY. I have some charts here, Mr. Chairman, that I think you will find helpful.

(The chart is printed herewith.)

Mr. CASSEDY. Mr. Chairman, I would like to say with respect to myself, that for the past 22 years, I have been engaged in the practice of law, and for 8 years of that time I served as a district attorney in the State of Mississippi, for 3 years I was assistant attorney general in Mississippi. For 5 years I have been employed by the Federal Trade Commission. For three and a half of those years I was a trial attorney, and for one and a half years I have been assistant general counsel, engaged principally in briefing and arguing Federal Trade Commission cases in the circuit courts of appeals.

The CHAIRMAN. I do not get this set-up in the legal department. There is a general counsel. How many assistants general counsel are there?

Mr. CASS DY. The function of handling the Commission's cases which are reviewed by the courts after decision by the Commission is performed by the general counsel, an association general counsel, and an assistant general counsel, with the necessary assisting attorneys. Under the general counsel, an assistant general counsel administers trade-mark, compliance, and enforcement matters.

I might say there is one assistant general counsel who handles the trade-mark matters, and one who now handles compliance and enforcement matters, making three in all.

Does that answer your question?

The CHAIRMAN. In a measure. I did not draw the distinction between assistant and associate.

Mr. WHITELEY. An associate is on the level of general counsel, on a grade level, just like an associate justice of the court; and an assistant is in a lower pay level for the purposes of pay.

Mr. HALE. One general, or chief counsel; one associate, and one assistant; is that right?

Mr. WHITELEY. That is right.

Mr. CASSEDY. Mr. Chairman, I have some additional charts that, during the course of the hearings, have been mentioned.

I have one table dealing with complaints and applications for complaints pending at the beginning of the year 1939, that is for the fiscal year, and throughout the subsequent years up to date.

The CHAIRMAN. The table will be placed in the record.