Statement of Commissioner Orson Swindle,
Concurring in the Result, in
Digital Equipment Corporation, Docket No. C-3818

I refer specifically to the inclusion in the analysis of a "threshold" based on some notion of "affirmative need," as discussed at pages 4-6 of the Commission's Order Reopening and Modifying Order in this case. I have serious questions about the provenance, logic, and utility of the "affirmative need threshold" in order modifications under the public interest standard.⁽¹⁾ I do not believe that the "affirmative need" element adds to our evaluation of a petition on public interest grounds, which should embrace no more than an overall balancing of the reasons for and against modification of the order. I cannot help but think that, however unintentionally, the Commission's establishment of an "affirmative need threshold" must have discouraged some petitioners from seeking potentially meritorious order modifications.

Orders in two recent cases gave me hope that the Commission was now in agreement that "affirmative need" plays no part in our order modifications. In the Schnuck case, the Commission granted a petition to modify an order on public interest grounds without once alluding to "affirmative need."⁽²⁾ And less than two weeks ago, in the General Nutrition matters,⁽³⁾ the "affirmative need threshold" again was nowhere to be seen. Observers in the bar and the business community would sensibly deduce from these two cases that the Commission no longer establishes an "affirmative need" barrier in the path of petitioners, and that considerations that formerly fell under the rubric of "affirmative need" are now analyzed -- as they should be -- in the general public interest balance.

Nonetheless, affirmative need seems to have returned in the present case. In addition to my general reservations about affirmative need, I am concerned that an order incorporating this "threshold," coming on the heels of Schnuck and General Nutrition, will cause considerable confusion. This case represented an excellent opportunity -- one that the Commission missed -- to intensify the natural implication of Schnuck and General Nutrition about the demise of the "affirmative need threshold."

Endnotes:

1. My concerns about the use of an affirmative need threshold are consistent with similar reservations that have been expressed in the past. See Columbia/HCA Healthcare Corp., 124 F.T.C. 38, 48-49 (1997) (statement of Commissioner Roscoe B. Starek, III); Columbia/HCA Healthcare Corp., 121 F.T.C. 611, 614-15 (1996) (same); California Medical Ass'n, 120 F.T.C. 858, 863-64 (1995) (same); California and Hawaiian Sugar Co., 119 F.T.C. 39, 51-56 (1995) (same); Service Corp. Int'l, 117 F.T.C. 700, 721-23 (1994) (same).

2. Schnuck Markets, Inc., Docket No. C-3585 (June 2, 1998) <http://www.ftc.gov/os/1998/06/schnumod.ord.htm>. This case presented a particularly clear illustration of the absurd results to which application of the "affirmative need" element can lead: granting Schnuck's petition to modify the order (so that it could donate equipment to a local community college) was manifestly in the public interest, yet in my judgment there would have been no justification for finding that Schnuck had satisfied the "affirmative need" requirement. It is thus fortunate that consideration of "affirmative need" was not a part of the Commission's analysis.

3. General Nutrition Corp. et al., Docket No. C-1517, and General Nutrition, Inc., Docket No. 9175, Order Granting in Part and Denying in Part Request to Reopen the Proceeding and Modify Cease and Desist Order in Docket No. C-1517 and Denying Request to Reopen and Modify Cease and Desist Order in Docket No. 9175 (Jan. 31, 2000) <http://www.ftc.gov/os/2000/02/gncorder.pdf>.