Jewel Companies, Inc. v. Federal Trade Commission , 432 F.2d 1155 ( 1970 )

PELL, Circuit Judge

(concurring).

I concur in the results reached in the opinion by Judge KERNER and further concur in the bases on which Judge KERNER reached these results with one exception.

In my opinion, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), while involving the promulgation of an industry-wide regulation, was posited on the finality of agency action within the meaning of § 10 of the Administrative Procedure Act, 5 U.S.C. § 704. I do not find in the case before us, in the action of the Federal Trade Commission filing a complaint, any elements of finality of administrative action such as were involved in Abbott.

Judge KERNER and I agree that plaintiffs’ reliance on Abbott is misplaced but apparently arrive at that result on a slightly different analysis of Abbott.

As indicated, in all other respects I concur in Judge KERNER’S opinion.