Full opinion text
J. SKELLY WRIGHT, Chief Judge: These appeals are the most recent stage in a process beginning in 1966, during the course of which the Federal Communications Commission (FCC) has nurtured a dynamic new medium: domestic satellite communication. The order under review, In Re Satellite Business Systems, 62 FCC2d 997 (1977), reconsideration denied, 64 FCC2d 872 (1977), granted Satellite Business Systems (SBS) authority to construct three domestic satellites and four fixed domestic satellite earth stations; it also gave SBS authority to operate channels of communications over the new system as a common carrier. SBS is a partnership among Comsat General Business Communications, Inc., a wholly-owned subsidiary of an affiliate of Communications Satellite Corporation, Information Satellite Corporation, a wholly-owned subsidiary of IBM Corporation, and Aetna Satellite Communications, Inc., a wholly-owned subsidiary of Aetna Casualty & Surety Company. At present, domestic satellite communications services are provided by RCA Global Communications (RCA), Western Union Telegraph Company, American Satellite Corporation (a subsidiary of Fairchild Industries, Inc., leasing a part of the Western Union system), and a joint venture between American Telephone & Telegraph Company (AT&T) and General Telephone & Electronics Corporation (GTE) (leasing the COM-STAR Domestic Satellite system from Com-sat General). These companies may be joined by a recently-formed joint venture between American Satellite and Continental Telephone Company, and by a system proposed by Xerox Corporation. The AT&T/GTE venture apparently has the potential to dominate the new field, by virtue of the overwhelming market position of its parents in the terrestrial specialized communications field. The Commission therefore restricted the AT&T/GTE venture from full competition as a common carrier for a three-year period, so that other firms would have time to establish a competitive foothold in the industry. Now that FCC-imposed restrictions on their satellite operations have lapsed, the telephone companies will be able to lower the per unit cost of their satellite services by routing part or all of their switched telephone network traffic (WATS or MTS) via satellite. This will spread the fixed costs of the system over a larger number of units, thereby enabling the venture to price its satellite channels below the price of its competitors, who do not have the benefit of such a large arbitrarily-adjustable monopoly demand base. Moreover, since satellite communication services will be in direct competition with terrestrial services — a field dominated by AT&T — AT&T’s potential market dominance in the overall specialized communications industry is considerable. The SBS entry into this concentrated industry would provide a significant increase in capacity of a highly technologically innovative sort. It would be the first system to integrate voice, data, and image transmission service in a largely digital format, to make available small earth stations at customers’ premises, to make more efficient use of the available spectrum through a “time division multiple access” and demand assignment technology, and to operate in the 12 and 14 GHz frequency bands. For purposes of this appeal, appellants concede that the SBS entry would provide a significant and beneficial new public service. Although SBS lacks the competitive advantages of AT&T and GTE described above, the combined expertise of Comsat in satellites and IBM in data processing — a major expected use for the domestic satellite system — offers the promise, as the FCC has repeatedly emphasized during the course of this proceeding, of challenging the expected market dominance of AT&T. If all goes well, SBS satellites could be in the air by early 1981. Twelve parties — six competitors of SBS, two computer or communications equipment manufacturers’ associations, two states, and two federal agencies — opposed the grant of a license to SBS on various grounds in the proceedings before the Commission. Four of these parties — American Satellite, Western Union, AT&T, and the United States Department of Justice — appeal the Commission’s final order. They argue principally that the FCC erroneously denied an evidentiary hearing into the possibilities of anticompetitive consequences resulting from the joint venture of Comsat and IBM. They ask this court to reverse and remand to the FCC for such an eviden-tiary hearing. The Commission argues that evidentiary hearings are not required by statute for all disputed issues, and that such hearings would not prove useful in evaluating the competitive conditions in a changing and experimental industry such as this one. Moreover, the Commission asserts that SBS’s entry into the concentrated domestic satellite industry would interject strong and immediate competition, and that delay of SBS entry for the purpose of holding evi-dentiary hearings would not be in the public interest. We agree and affirm. I. BACKGROUND The Commission’s policy over the past ten years has been to develop the domestic satellite communications industry by permitting limited open entry and encouraging technological competition. Entry is limited only by legal, technical, and financial fitness qualifications. In its First Report and Order (Domsat I), 22 FCC2d 86 (1970), issued after four years of study and public comment, the FCC concluded that satellites could play an important role in the field of domestic communications, but that the risks and uncertainties involved in the development of the industry were substantial. The Commission invited potential applicants to submit concrete system proposals for consideration. In its Second Report and Order (Domsat II), 35 FCC2d 844 (1972), the Commission rejected the suggestion that it should restrict entry to one or a small number of licensees. It reached this conclusion partly on the basis of comments submitted by the Department of Justice detailing the delay, expense, and disutility of comparative hearings to select licensees. The Commission stated that “[t]he presence of competitive sources of specialized services, both among satellite system licensees and between satellite and terrestrial systems, should encourage service and technical innovation and provide an impetus for efforts to minimize costs and charges to the public.” Accordingly, it adopted the multiple entry policy, permitting firms to enter the industry singly or jointly, subject only to a basic fitness determination. In adopting this policy, the FCC was aware that every one of the potential applicants for entry presented possible antitrust problems. All were satellite or communications equipment manufacturers, satellite users, broadcast networks, or major firms in related industries. Each potential applicant would be in a position to use its market power in a related field to affect the domestic satellite communications market. Nevertheless, the FCC decided, at the urging of its staff and the Department of Justice, that none of the potential applicants should be disqualified. It reasoned that only a company with experience in a related industry would be able to compete successfully in the market. Moreover, FCC and the Department of Justice agreed that the Commission’s powers to impose restrictions and take other remedial action would suffice to minimize anticompetitive abuses or to cure them should they occur. The Commission specifically approved the formation of joint ventures, which offer the advantages of risk sharing and pooling of technical and financial resources. To obviate the anticompetitive consequences of entry by certain of the applicants, the FCC imposed restrictions on some satellite companies. Among the restricted companies was Comsat, which was required to form a separate corporate subsidiary to enter the domestic satellite industry. That subsidiary was required to choose between operating as a carrier’s carrier on behalf of AT&T or others, and providing communications services directly to customers. Later, on reconsideration, the FCC substantially modified these restrictions. Following the Domsat II policy, the FCC approved domestic satellite communications license applications without evidentiary hearings on antitrust consequences. In separate orders issued the same day in 1973, the FCC approved applications by AT&T and by GTE to construct and operate earth stations and to provide domestic communications services. In 1975, however, the Commission granted permission to the two telephone companies to combine their satellite operations in one joint venture. The FCC was fully aware of the possible antitrust consequences of this decision: in granting GTE’s earlier separate application the Commission had noted that GTE’s separate entry “could also lessen AT&T’s dominance and economic influence in the domestic communications field.” Despite this elimination of actual competition between the two firms, neither the Department of Justice nor the Federal Trade Commission objected, nor did any party request or receive an evidentiary hearing on antitrust consequences. On that same day in 1973 the FCC approved applications by RCA, Hughes Aircraft Company, and American Satellite for authority to construct and operate domestic satellite facilities. The Network Project, an unincorporated association that favored government ownership of satellite systems, opposed the applications, partly on antitrust grounds, and asked for an eviden-tiary hearing. The FCC denied an eviden-tiary hearing and granted all three applications. The Department of Justice did not oppose the grant of the applications or the denial of an evidentiary hearing. This court affirmed the Commission in Network Project v. FCC, 511 F.2d 786 (D.C.Cir.1975). Because of its precedential importance to this case, it is worth quoting the Network Project opinion at some length. In answer to the Network Project’s antitrust arguments the court responded: We need not speculate whether the arrangement will in fact some day so operate as to create antitrust problems. It is enough that the proposals are not per se a violation, * * * and that the Commission reasonably concluded that a violation would not occur. Indeed, the Commission found that competition would be enhanced. Id. at 796 (citation omitted). In response to the Network Project’s argument that an evidentiary hearing was erroneously denied, the court stated: [A] hearing is not necessary where the Commission’s decision is based on inferences and conclusions drawn from undisputed facts. Petitioner does not dispute any of the material facts on which the Commission’s conclusions rest, but asserts only that insufficient facts were adduced to make a public interest finding. * * * The Commission was faced with a situation in which it determined that the new and increased services would be beneficial but, unlike the usual common carrier case, was unable to define with assurance the precise scope or content of all aspects of the proposals. In this unique and experimental situation, we believe that the Commission rationally determined, on the basis of all necessary factual investigation, that the grant of the applications, subject — as the Commission recognizes— to continuing supervision and evaluation, is in the public interest. Id. at 796-797 (footnote omitted). The court specifically noted “that the Commission acted reasonably in taking cognizance of the fact that, in these special circumstances, considerable lead time is required for preparation of a system, and in determining that the public interest required avoidance of any unnecessary delay.” Id., at 797 n.13. II. HISTORY OF THE COMSAT/IBM VENTURE As we have noted above, the FCC initially decided in Domsat II to prevent Com-sat from operating both as a carrier’s carrier for AT&T or others and as a multipurpose carrier serving customers directly. In its Reconsideration Order, 38 FCC2d 665 (1972), the FCC relaxed this restriction, subject to the following conditions: (1) Comsat would have to be a minority participant in a joint venture, and would have to seek prior FCC approval before increasing its ownership above a one-third interest or acquiring de facto control in any fashion; (2) no AT&T officer or director could serve as a director of Comsat; and (3) Comsat would be required to establish a separate corporation to operate its domestic system, and this separate corporation could not include any representatives of AT&T. Id. at 684-685 1142, 44, 45. Under this modified policy the Commission declared a joint venture between Comsat, Lockheed Aircraft Corporation, and MCI Communications Corporation (to be called CML Satellite Corporation) eligible for further consideration to become a domestic satellite communications licensee. Subsequently, for financial reasons, Lockheed and MCI withdrew from the CML venture. A. The CML Decision On July 15, 1974 Comsat, in conjunction with IBM, applied for approval of changes in the structure of the CML venture. As proposed, Comsat General would have owned 45 percent, and IBM 55 percent, of the operating company. Some seventeen parties filed written submissions concerning the proposed entry, and the Commission set the matter for oral argument en banc. Opponents of the Comsat/IBM entry made three principal objections to it. First, they argued that IBM could dominate the satellite transmission of data communications by offering a packaged end-to-end data processing communications service compatible only with IBM equipment. Second, they argued that IBM could promote its satellite services to its computer and data processing customers, possibly by offering discounts or other advantages to customers for using both IBM equipment and IBM satellite services. Finally, they argued that IBM and Comsat, both of which do business with AT&T, would refrain from competing with AT&T in the voice and image communications market, and would concentrate instead on the data communications market. In February 1975 the FCC released its CML Decision, 51 FCC2d 14 (1975), disapproving the specific proposal, but delineating the circumstances under which entry by Comsat and IBM would be considered. The FCC decided not to hold evidentiary hearings on the antitrust issues, noting that they were substantially similar to issues already considered and decided in the earlier Domsat proceedings. Id. at 43-44, 1147-48. Nevertheless, the Commission imposed restrictions on the Comsat/IBM entry to reduce the likelihood of anticom-petitive effects. To prevent IBM’s abuse of its dominant position in the computer and data processing industries, the FCC required the venture to provide for interconnection of its customers’ data processing and communications systems on reasonable terms and without discrimination, and required it to submit a detailed description of such arrangements to the FCC in advance of its application. Moreover, the Commission required IBM to create a separate corporate entity to operate its satellite system. This entity was forbidden to market IBM equipment, and IBM was forbidden to market satellite communications services except through the separate entity. To ensure that the venture would compete vigorously with AT&T, the FCC required that Comsat and IBM adopt one of three permissible forms of business organization. One of them, called the “balanced CML option,” provided the framework for the plan now under review. The FCC described the option in this way: Comsat General and IBM may choose to participate as partners in CML with another corporate partner(s) upon condition that no partner in CML shall have less than a 10% ownership interest or more than a 49% ownership interest or otherwise be in a position whereby it could exercise de facto control.!! CML Decision, 51 FCC2d at 38. In addition, the FCC stated its intention to employ its continuing authority to impose additional restrictions should the Comsat/IBM venture later cause serious anticompetitive effects. Id. at 44, 148. Subject to these restrictions, the FCC determined that IBM, backed by its extensive financial resources and its experience concerning the usages and needs of customers in communications and data processing, offered the prospect of a strong and innovative competitor to AT&T. Moreover, in view of the formidable barriers to entry into the industry, the Commission concluded that requiring Comsat and IBM to enter the field separately might well deprive the industry of one or both as competitors. Therefore, the FCC adopted the policy that is now being challenged in this case: to permit a Comsat/IBM joint venture, subject to protective conditions. SBS, neé CML, is the product of that policy. B. The Order Under Review Following the CML Decision, IBM and Comsat found a third partner to pursue the “balanced CML option”: Aetna Casualty & Surety Company, through its subsidiary, Aetna Satellite Communications, Inc. Under the. agreement each partner has committed $55 million to the enterprise, and may provide additional funds if needed. During the pre-operational phase of the system the three partners will exercise equal control. When the system becomes operational Aetna will have the choice to retain its one-third equity interest in SBS, or to convert a part of that investment to debt. In no event may Aetna’s equity interest fall below 15 percent. Major decisions will require the unanimous consent of the partners. In December 1975 SBS organized as a partnership and applied to the FCC for a license. Opponents of the license made many objections, but for purposes of this appeal only the antitrust-related objections are significant. In summary, the most important such objections are: (1) that the SBS joint venture eliminates the actual competition that would occur were IBM and Comsat to enter the field individually, or the potential competition that would occur if one of the firms were to enter and the other to be perceived by the industry as a strong potential entrant; (2) that the combined strength of Comsat and IBM would be so great as to raise barriers to entry and to chill competition in the industry; and (3) that IBM could engage in predatory conduct in the satellite industry, the data processing industry, or both. The FCC denied an evidentiary hearing into the various objections by SBS’s opponents, and granted the license in a lengthy opinion released on February 8, 1977. It explained its reasoning as follows: In sum, we have chosen to dispose of SBS’ Applications without a trial-type ev-identiary hearing because (1) the benefits to the public of a more rapid institution of service far outweigh any possible benefits of such time-consuming procedures; (2) “facts” which lend themselves to ad-duction by oral testimony would not be forthcoming in such proceedings; (3) in ten years of rulemaking and application comment proceedings the issues now before us have been explored in detail and no new material is sought to be placed before us through trial-type evidentiary procedures; (4) we have assumed for the purposes of analysis that the parties’ contentions are correct and drawn appropriate inferences therefrom; and (5) in view of the conditions and limitations we are imposing herein, as well as our continuing regulatory supervision and the remedies available to us, we can and will assure that the SBS proposal will serve the public interest. The domestic satellite field remains experimental, and speculation about its future is as tenable through the notice and comment procedures which we have adopted, as it would be in trial-type evidentiary proceedings. In this unique environment, SBS’ future actions and conduct, under our close regulatory supervision, will be far more determinative than would speculation in an evidentiary proceeding. SBS Decision, 62 FCC2d at 1068 f 199, JA 1591. With appropriate restrictions, mod-elled on those in the Domsat II and CML decisions, the FCC granted the proposed construction and operating authority to SBS. The Commission emphasized, however, that “[i]f, for any reason, we deem it in the public interest to revisit any of these matters, we will not hesitate to do so. And we so condition our action today.” Id. at 1044-1045 1122, JA 1567-1568. Reconsideration was denied, 64 FCC2d 872 (1977). American Satellite, Western Union, AT&T, and the Department of Justice have appealed the FCC order to this court. The appeal was first heard by a panel of this court, which released on August 29, 1978 a per curiam opinion reversing the Commission. The panel held: (1) that the FCC employed the wrong legal standard in balancing the public interest benefits of the SBS entry against the alleged violations of the antitrust laws, and (2) that the FCC did not adequately justify its failure to hold an evidentiary hearing on the antitrust question in the case. Because of the importance of the issues raised, we voted to rehear the appeal en banc, and vacated the panel opinion. All parties and the amicus curiae have submitted supplemental briefs to assist the en banc court. At our request, their briefs primarily addressed two issues: (1) Whether the case law and the legislative history of Section 11 of the Clayton Act (a) constrain the Court to interpret that provision as imposing “an absolute enforcement responsibility” on the FCC; or (b) warrant the interpretation of subsection 11(a) as a grant of discretionary enforcement authority, and the interpretation of subsection 11(b) as defining the procedures to be followed whenever such enforcement authority is exercised. (2) Whether, and in what respects, the validity of the FCC’s licensing determination is affected by the failure to conduct a full evidentiary hearing on the possibility of an antitrust violation and to review and analyze in depth such considerations. III. THE ANTITRUST ENFORCEMENT RESPONSIBILITIES OF THE FCC More than ten years ago this court made clear that “competitive considerations are an important element of the ‘public interest’ ” standard which governs federal agency decisions. Northern Natural Gas Co. v. FPC, 399 F.2d 953, 961 (D.C.Cir.1968). We therefore required such agencies to “make findings related to the pertinent antitrust policies, draw conclusions from the findings, and weigh these conclusions along with other important public interest considerations.” Id. at 961. No party to this proceeding denies that the FCC must make the appropriate findings and conclusions. Western Union and American Satellite, however, urge us to adopt a more demanding standard for the enforcement by the FCC of the Clayton Act. They argue that under Section 11 of the Clayton Act, 15 U.S.C. § 21 (1976), the FCC has an “unwaivable and unwavering” obligation to enforce the Clayton Act, and that this obligation “cannot be limited absent total frustration of the FCC’s regulatory scheme * * In other words, they argue that if a proposed entry would violate the Clayton Act the FCC must reject the proposal, no matter how important it might otherwise be to the public interest. The FCC employed a different legal standard in reaching the decision under review: [T]he Sherman and Clayton Acts assume that the public interest is served by competition, in and of itself. Under the statutory fabric of regulation and of the Communications Act, however, we are required to decide where the public interest lies, and competition is but one element of a determination of the public interest. * * * SBS Decision, 62 FCC2d at 1069 H 204, JA 1592. In other words, the FCC asserts that it has “prosecutorial discretion” with respect to antitrust enforcement. In this contention the FCC is joined not only by SBS, but also by the Department of Justice and the FTC. The position urged by American Satellite and Western Union would seem to be foreclosed by our recent statement in Home Box Office, Inc. v. FCC, 567 F.2d 9, 40 n.67 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 829, 54 L.Ed.2d 89 (1977): “We do not agree with the suggestion of some petitioners that the [Federal Communications] Commission must demonstrate that the means it has chosen have the least impact on competition consistent with achievement of the Commission’s purposes. * * * Anticompetitive factors are also only one of a number of factors to be considered under the Communications Act * * *.” (Citations omitted.) However, as the original panel opinion pointed out, neither Home Box Office nor any other reported decision of this or the Supreme Court has specifically addressed the responsibility of the FCC under Section 11 of the Clayton Act. We do so now, and find the interpretation suggested by Western Union and American Satellite unpersuasive. A. The Statute Section 11 of the Clayton Act, 15 U.S.C. § 21 (1976), provides in subsection (a) that authority to enforce certain substantive provisions of the Clayton Act, including Section 7,15 U.S.C. § 18 (1976), is vested in the FCC “where applicable to common carriers engaged in wire or radio communication or radio transmission of energy[.]” Identical authority is vested in the Interstate Commerce Commission, the Civil Aeronautics Board, and the Federal Reserve Board with respect to their regulatory jurisdictions, and in the FTC with respect to other lines of commerce. Subsection (b) provides: Whenever the Commission or Board vested with jurisdiction thereof shall have reason to believe that any person is violating or has violated any of the [enumerated] provisions * * *, it shall issue and serve upon such person and the Attorney General a complaint * * *. * * * (Emphasis added.) The remainder of the subsection spells out the procedures to be followed. Western Union and American Satellite argue that the emphasized words of the statute, “whenever,” “shall,” and “shall,” must be interpreted to mean that the Commission has no discretion in the matter; that it must take positive action when it has reason to believe that Section 7 has been violated. This is by no means a necessary reading of the statute. The grant of enforcement authority in subsection (a) contains no mandatory language. Such language is used only in subsection (b), the subsection devoted to procedural protections. One plausible reading of the statute is that the Commission has discretion with respect to whether it will enforce the Clayton Act, but that it has no discretion with respect to the procedural protections to be afforded once the decision to enforce has been made. Contrary to the assertion of Western Union and American Satellite, this reading of the Act does not render the section superfluous. Rather, the section makes three changes in the law: it displaces the FTC by the FCC as the enforcement agent of the Clayton Act within the regulatory jurisdiction of the latter, it gives the FCC additional authority for enforcement of its antitrust responsibilities, and it protects the regulated businesses by prescribing their procedural rights during a Clayton Act enforcement proceeding. In the light of the legislative history, interpretation by the Supreme Court, and purpose of the statute, we find this interpretation compelling. B. Legislative History Both sides in this controversy have sought, and purport to have found, support for their positions in the legislative history of Section 11 of the Clayton Act. Our review of that history reveals nothing conclusive. However, we can state with assurance that nothing in the legislative history establishes any clear intention on the part of Congress to make the FCC’s Clayton Act enforcement mandatory, whereas a great deal in that history indicates the contrary. 1. Original passage of the Clayton Act. The Clayton Act and the Federal Trade Commission Act, passed within a few weeks of each other in 1914, both included grants of enforcement authority to the FTC. During much of the time the Clayton Act was debated the enforcement provisions of the two bills were identical. In fact, the Senate committee that reported the Clayton Act proposed language in the bill stipulating that, once a complaint had issued, “thereupon such proceedings shall be had as are provided for in section 5 of the [FTC] act.” Section 5 of the FTC bill then provided in relevant part: Whenever the commission * * * shall have reason to believe that any person * * * is violating any of the provisions of * * * this act it shall issue and serve upon such person * * * a complaint * *. * * * [] Senator Newlands, the principal sponsor of the FTC bill and Chairman of the Interstate Commerce Committee, interpreted the bill to mean that “[a]nyone who felt himself injured * * * could, of course, apply to this commission. It would then be in its discretion as to whether it would grant a hearing.” Since the FTC bill had not yet been passed, however, the committee decided it would be inappropriate to refer specifically to that Act in the Clayton Act. It therefore substituted for the formulation quoted above the actual language of Section 5 of the FTC bill as it then existed. This language was ultimately adopted as Section 11(b) of the Clayton Act and is with us still. Subsequently, however, the language of Section 5 of the FTC bill was amended to make it clear that the FTC would have the discretion not to institute enforcement proceedings in unimportant cases. The amendment added new language to the grant of authority, here italicized: Whenever the commission shall have reason to believe that any such person * * * has been or is using any unfair method of competition in commerce, and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person * * * a complaint * * *. * * * See H.R.Rep. No. 1142, 63d Cong., 2d Sess. 3 (1914). In this form the FTC bill was passed, and is unchanged today. There is no indication in the legislative history of the Clayton Act that that Act was intended to vest any less discretion in its enforcement agencies than the FTC Act vested in the FTC. On the contrary, the express purpose of using the language — as it was at the time — of Section 5 of the FTC bill was to ensure that the enforcement provisions of the Clayton and FTC Acts would be exactly the same. In order to carry out that intention, we must interpret Section 11 of the Clayton Act as vesting prosecutorial discretion in its enforcement agencies. 2. The Communications Act of 1934. Section 11 of the Clayton Act was amended by Section 602(d) of the Communications Act of 1934 to include the FCC as one of the Clayton Act enforcement agencies. This amendment, listed among the “Miscellaneous Provisions” of the Communications Act, was plainly not intended to alter the discretion of the enforcement agencies under Section 11; rather, its sole purpose was to allocate Clayton Act enforcement authority over the communications industry to the newly-created FCC. Both the Senate and the House Reports’ sole explanation of Section 602(d) was: The latter section also makes certain changes in other law, including the Clayton Act, made necessary by the setting up of the new commission and conferring upon it jurisdiction over communications. 3. Later developments. Since the passage of the Communications Act of 1934, the enforcement agencies other than the FTC have seldom attempted to enforce the Act. Congress has been informed of this lack of enforcement, and has never expressed any dissatisfaction. In 1938 bills were introduced in both houses of Congress that would have amended Section 313 of the Communications Act by adding a new paragraph: It is hereby declared to be the intention and policy of the Congress to prevent monopoly and to encourage competition in direct foreign radio telegraph communication; and for the purposes of this act, in considering application for licenses * *, the Federal Communications Commission shall consider competition in such communication to be in the public interest. S. 3875, 75th Cong., 3d Sess. (1938); H.R. 10348, 75th Cong., 3d Sess. (1938). These bills were introduced in response to the holding of this court in Mackay Radio and Telegraph Co. v. FCC, 97 F.2d 641, 643 (D.C.Cir.1938), that the public interest standard of the Act “does not apply to the radiotelegraph business the policy of free competition * * *.” Hearings on the bills were held, but no report ever issued; the bills were not adopted. Senator White, a major participant in the hearings, expressed his view of the policy of Congress toward competition in the communications industry: “I would say that this encouragement of competition and the prevention of monopoly are only one of the elements or one of the factors that the Commission would take into consideration in passing on an application.” In 1959 an amendment to Section 11 was introduced that would have made cease and desist orders under that section final. In supporting this amendment Congressman Patman remarked: “This bill will not require better enforcement of the Clayton antitrust law, but it will make it possible for the Federal Trade Commission better to enforce the law if it cares to do so.” Congressional inaction and statements by individual congressmen are not strong evidence of congressional intention, and if there were evidence to the contrary we would disregard them. However, this legislative history, meager as it is, does indicate that Congress did not make the FCC’s Clayton Act enforcement authority mandatory when it had the opportunity to do so. It would not be the place of this court to impose such mandatory responsibility without congressional authorization, even if we thought it desirable. C. Supreme Court Precedent The Supreme Court thoroughly addressed the relation between the public interest determination and the antitrust policy of the United States for the first time in McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544 (1944). There the Court held that the ICC’s responsibility to enforce the antitrust laws is but one part of its overall public interest determination: In short, the Commission must estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed consolidation and consider them along with the advantages of improved service, safer operation, lower costs, etc., to determine whether the consolidation will assist in effectuating the overall transportation policy. * * * Id. at 87, 64 S.Ct. at 381. The Court treated the issue similarly in Seaboard Air Lines R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965), a case that specifically addressed the ICC’s responsibilities under Section 11 of the Clayton Act. The ICC had approved a railroad merger; a three-judge District Court reversed and remanded for a determination of whether the merger violated Section 7 of the Clayton Act. The Supreme Court reversed the lower court, reminding it that the ICC was obligated to determine whether the proposed merger is in the public interest and that, if it is, “[i]t matters not that the merger might otherwise violate the antitrust laws[.]” Id. at 156-157, 86 S.Ct. at 278. In the communications field the Court has followed a parallel course. In FCC v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1400 (1953), the Court squarely rejected the theory that Clayton Act antitrust principles govern the antitrust component of the public interest determination. The Court emphasized that the competitive consequences of proposals before the FCC “must be read in the light of the special considerations that have influenced Congress to make specific provision for the particular industry.” Id. at 98, 73 S.Ct. at 1006. American Satellite and Western Union seek support for their view in language in Denver & Rio Grande Western Railroad v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967). The Denver case concerned ICC approval of the issuance of a large block of stock in a railroad express company to a major bus company. The opinion said that the agencies listed in Section 11 of the Clayton Act have an “affirmative duty * * * to enforce the Act’s provisions.” Id. at 496 n.7, 87 S.Ct. at 1761. The Court also said that the “obligation to enforce the Clayton Act is the rule,” id. at 497, 87 S.Ct. at 1761, and “the Clayton Act is prohibitive, and imposes a positive obligation upon the [agency] to act.” Id. at 502, 87 S.Ct. at 1764. American Satellite and Western Union interpret Denver to mean that an enforcing agency under Section 11 must disapprove any proposal that violates the Clayton Act, no matter how strong the public interest in the proposed service might otherwise be. This interpretation of the Denver opinion stretches its words too far. It must be remembered that the question decided by the Court in Denver was “whether the Interstate Commerce Commission complied with its statutory responsibilities under § 20a of the Interstate Commerce Act when it approved without consideration of control or anticompetitive consequences" the proposed stock issuance. Id. at 487, 87 S.Ct. at 1756 (emphasis added; footnote omitted). In reversing the ICC the Court required “at least some degree of consideration of control and anticompetitive consequences.” Id. at 492, 87 S.Ct. at 1759 (emphasis added). Any contention that Clayton Act considerations must outweigh other aspects of the public interest is belied by the Court’s statements that the Commission is required to “consider^ ] * * * all important consequences including anticompetitive effects,” id. at 492, 87 S.Ct. at 1759, that the Commission has the responsibility “to weigh anticompetitive consequences,” id. at 494, 87 S.Ct. at 1760, and that “the Commission is, of course, required to consider anticompeti-tive issues under the public interest standard,” id. at 501, 87 S.Ct. at 1764. The Denver decision stands for the principle, not different from this court’s holding in Northern Natural Gas, that the agency is required to consider anticompetitive consequences as one part of its public interest calculus. Neither Denver nor any other authority we have found makes the antitrust component of that calculus conclusive. D. Statutory Policy A holding that the FCC’s enforcement of the Clayton Act is mandatory would clash with decisions holding that the FTC and the ICC have prosecutorial discretion in enforcing that Act, since the enforcement authority of all three agencies derives from Section 11. Moreover, it is well established that the Department of Justice has prosecu-torial discretion with reference to criminal laws of the United States. These include the Clayton and Sherman Acts, despite seemingly mandatory language in those statutes. There is no reason we can discern that the FCC, alone of these agencies, should retain no discretion over its antitrust enforcement actions. More fundamentally, the inflexible interpretation urged by American Satellite and Western Union runs counter to the purpose of industry regulation. As this court has observed before: “The whole theory of licensing and regulation by government agencies is based on the belief that competition cannot be trusted to do the job of regulation in that particular industry which competition does in other sectors of the economy.” Hawaiian Telephone Co. v. FCC, 498 F.2d 771, 777 (D.C.Cir.1974). Since “the basic goal of direct governmental regulation through administrative bodies and the goal of indirect governmental regulation in the form of antitrust law is the same — to achieve the most efficient allocation of resources possible,” Northern Natural Gas Co. v. FCC, supra, 399 F.2d at 959, we have insisted that the agencies consider antitrust policy as an important part of their public interest calculus. But the agencies are not “strictly bound by the dictates of [the antitrust] laws,” id. at 961; rather, they are entrusted with the responsibility to determine when and to what extent the public interest would be served by competition in the industry. The agency’s determination about the proper role of competitive forces in an industry must therefore be based, not exclusively on the letter of the antitrust laws, but also on the “special considerations” of the particular industry. As the Supreme Court has said, resolution of the sometimes-conflicting public interest considerations “is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the * * * industry. Congress left that task to the Commission * * McLean Trucking Co. v. United States, supra, 321 U.S. at 87, 64 S.Ct. at 381. We therefore reject American Satellite’s and Western Union’s attempt to constrict the FCC’s discretion within the parameters of the antitrust laws. We hold that the requirements of Section 11 of the Clayton Act and Section 309(a) of the Communications Act are satisfied when the Commission seriously considers the antitrust consequences of a proposal and weighs those consequences with other public interest factors. IV. THE COMMISSION’S DISCRETION TO DECIDE WHETHER TO CONDUCT AN EVIDENTIARY HEARING Appellants argue that the SBS Decision must be reversed because of the FCC’s failure to conduct evidentiary hearings on the antitrust issues. We must therefore decide whether the agency has the discretion to refuse to conduct such evidentiary hearings and, if it has, by what standard we must evaluate the exercise of that discretion. Then we must judge whether the FCC erred in this case. We begin with the statute. Section 309(e) of the Communications Act of 1934, 47 U.S.C. § 309(e) (1976), specifies the hearing procedures to be followed in a licensing proceeding: “If * * * a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding [of public convenience and necessity] * * *, it shall formally designate the application for [a] hearing * * *.” The required hearing is described as a “full hearing in which the appellant and all other parties in interest shall be permitted to participate.” Id. The hearing requirement therefore is triggered in one of two ways. First, a party may raise factual questions in his petition to deny. Second, the Commission may lack sufficient information on which to make an informed judgment. See Citizens Committee to Save WEFM v. FCC, 506 F.2d 246, 259 (D.C.Cir. 1973) (en banc). Section 309(d) describes the burden on an opponent of a license in submitting a petition to deny : The petition shall contain specific allegations of fact sufficient to show that * * * a grant of the application would be prima facie inconsistent with subsection (a) of this section. Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. * * * This provision, which was added to the Act by amendment in 1960, was intended to require “a substantially stronger showing of greater probative value” than had been required before. S.Rep. No. 690, 86th Cong., 1st Sess. 3 (1959). The allegations must be of specific evidentiary facts, not “ultimate, conclusionary facts or more general allegations * * *.” Id. American Satellite and Western Union each submitted a petition to deny supported by three affidavits. The allegations in these petitions consisted largely of generalized and unsupported criticisms of the SBS venture, or of undisputed facts derived from the SBS application and prior FCC statements. These were supplemented by legal and economic conclusions concerning market structure, competitive effect, and public interest. The Department of Justice submitted neither petition nor affidavits; even in its briefs on appeal it did no more than suggest avenues for FCC investigation. JA 1518-1519. Since these petitions and supporting affidavits manifestly do not contain “specific allegations of fact sufficient to show that * * * a grant of the application would be prima facie inconsistent" with the public interest standard, 47 U.S.C. § 309(d) (1976), the Commission was not obligated to schedule an evidentiary hearing on that ground. See Columbus Broadcasting Coalition v. FCC, 505 F.2d 320, 323 — 324 (D.C.Cir.1974). Appellants’ principal argument must, therefore, be based on the second ground necessitating a hearing under Section 309(d): that the FCC lacked sufficient data on which to make an informed decision. There is no clear answer to the question whether there was enough evidence to make a decision. The Department of Justice has admitted that “the nature of the ‘full hearing’ required by Section 309(e) turns on the type of factual questions raised,” and has commended the FCC for not holding evidentiary hearings on some of the antitrust objections to the SBS entry. Someone must decide when enough data is enough. In the first instance that decision must be made by the Commission — not by the Department of Justice or the FTC, not by the parties to the proceeding, and not by the courts. West Michigan Telecasters, Inc. v. FCC, 396 F.2d 688, 691 (D.C.Cir.1968). To allow others to force the Commission to conduct further evidentiary inquiry would be to arm interested parties with a potent instrument for delay. The sad truth about agency decisionmaking and evidentia-ry inquiries is that they take time; and time often works to the advantage of one party over another. Although evidentiary hearings and other procedural devices are useful — and sometimes indispensable — they may also be exploited for unworthy purposes. For that reason this court has held: [T]he decision of whether or not hearings are necessary or desirable is a matter in which the Commission’s discretion and expertise is paramount. We must examine the Commission’s statement of reasons for denial, and if the Commission’s action was not arbitrary, capricious or unreasonable, we must affirm. Columbus Broadcasting Coalition v. FCC, supra, 164 U.S.App.D.C. at 217, 505 F.2d at 324 (footnote omitted). In the context of another administrative agency we have said: [A]n agency is not required to hold hearings in matters where the ultimate decision will not be enhanced or assisted by the receipt of evidence. And as to interventions raising anti-competitive issues we see no objection in law to a disposition without [a] hearing that is accompanied by an explanation, supported in the record, that the intervenor’s contentions are too insubstantial or barren to indicate the existence of substantial anticompetitive issues * * *. City of Lafayette v. SEC, 454 F.2d 941, 953 (D.C.Cir.1971), aff’d sub nom. Gulf States Utilities Co. v. FPC, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973) (footnote omitted). These holdings are fully consistent with recent holdings of the Supreme Court. In Gulf States Utilities Co. v. FPC, supra, 411 U.S. at 762, 93 S.Ct. at 1880, the Court held that the agency’s responsibility to consider the antitrust implications of its actions does not entail holding a hearing on antitrust objections in every case, or fully investigating every allegation regardless of its facial merit. The Court noted that “[s]o strict a rule would unduly limit the discretion the Commission must have in order to mold its procedures to the exigencies of the particular case * * *.” Id. The Court reaffirmed its earlier statement that where the agency has disposed of antitrust objections summarily, the reviewing court must “closely scrutinize” the decision. 411 U.S. at 763, 93 S.Ct. at 1880, citing Denver, supra, 387 U.S. at 498, 87 S.Ct. at 1762. We recognize that the Commission’s discretion to dispose of significant antitrust issues without an evidentiary hearing is not unlimited. This court has pointed out that questions about “probable competitive behavior and its probable effects” require knowledge of the factual context and expert evaluation, and that they should not be “determined exclusively by reasoning in the abstract, based upon logical speculation.” United States v. CAB, 511 F.2d 1315, 1326 (D.C.Cir.1975). Since no evidentiary hearing was conducted, we must examine the agency’s conclusions with particular care. See Nat’l Air Carrier Ass’n v. CAB, 436 F.2d 185,195 (D.C.Cir.1970). Nevertheless, our inquiry is limited to two questions: (1) Was the Commission’s decision not to conduct evidentiary hearings reasonable, and not arbitrary or capricious? and (2) given the absence of an evidentiary hearing, was the conclusion of the Commission otherwise supportable under the applicable standard of review? We turn now to those questions. V. THE REASONABLENESS OF THE COMMISSION’S PROCEDURES All parties to this appeal agree that some sort of hearing was needed to investigate the antitrust consequences of the SBS entry; the disputed question is what particular kind of hearing was needed. The FCC, on two different occasions, invited interested parties to submit whatever written material they wanted the Commission to consider, and on one occasion heard oral argument en banc on the antitrust issues of the SBS venture. All of the business parties to this case, and others, participated in the argument, and the submitted materials were voluminous. Appellants, however, argue that notice, comment, and oral argument were insufficient; they demand a trial-type evidentiary hearing, complete with discovery, witnesses, and cross-examination. No one can predict how long such a proceeding would take; at the least, it would surely take several months, and it would be more likely to take over a year. The Commission decided not to conduct an evidentia-ry hearing because it concluded that the benefits of such a hearing would be outweighed by the delay and attendant costs. In evaluating that judgment we observe at the outset that the FCC has consistently acted without evidentiary hearings during the course of the domestic satellite communications decisions. Each of the appellants has been either a proponent or a beneficiary of this policy. Throughout the proceedings the FCC has emphasized the importance of getting satellite communications systems under way without procedural delay. This court has approved this FCC policy when it was challenged before. Network Project v. FCC, supra, 511 F.2d 786. In view of this consistent policy, suggested by the Department of Justice, adopted by the FCC, and affirmed by this court, appellants bear a heavy burden of explaining why a change is in order now. A. The Usefulness of an Evidentiary Hearing As the FCC has pointed out, the domestic satellite communications industry is in its highly risky and experimental phase. The field is rapidly changing technologically and economically. As a result the Commission’s determinations must necessarily “depend to a greater extent upon policy judgments and less upon purely factual analysis.” Industrial Union Department, AFL-CIO, v. Hodgson, 499 F.2d 467, 474 (D.C.Cir.1974). As the Supreme Court has said, where agency decisions are “of a judgmental or predictive nature,” FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813, 98 S.Ct. 2096, 2121, 56 L.Ed.2d 697 (1978), “complete factual support in the record for the Commission’s judgment or prediction is not possible or required; ‘a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency,’ * * Id. at 814, 98 S.Ct. at 2122. Only a few years ago there were no firms in the industry; soon there will be half a dozen; in ten years there might be many more. On the other hand, technological developments and resultant economies of scale might make the FCC’s present policy of limited open entry obsolete; conceivably there might emerge a natural monopoly. We are in similar ignorance about the extent of the demand for satellite services: it might be immense or it might be limited to a relatively small class of specialized users. We do not know, and months of hearings and witnesses and cross-examinations will not enable us to divine, the future course of the industry. Even the economist solicited by Western Union as an expert witness to urge further hearings admitted in his affidavit that “we are not dealing with a static or settled product line, like cement or steel or even transportation service, but with a rolling, sometimes galloping, technology, creating new markets and new ways to serve old ones as it goes along.” JA 1489. The best this expert could claim was that “at any given time the ‘reasonable interchangeability’ of services can be identified and ‘relevant submarkets’ delineated * * Id. (emphasis added). But the FCC’s decision cannot be based on competitive conditions “at any given time”; it must be based on a reasonable prediction of future conditions. The FCC has concluded that the attempt to resolve these speculative matters through adversary proceedings would be futile. We believe that conclusion is reasonable. Merely stating the problem exposes the formidable obstacles to obtaining probative evidence in a case such as the one at bar. The first step is to decide what markets or submarkets exist that might be affected by the joint venture. Essentially, the appellants attempt to identify a communications submarket that does not yet exist, made up of data processing customers, large users, or some other subgroup. Once an industry pattern emerges it will become possible to talk of “reasonable interchangeability” and “cross-elasticity” and the other economic concepts that are used to define relevant markets and submarkets. In the meantime, the Commission can do little more than analyze suggested submarkets and make an informed guess about their future characteristics. This the Commission has done. We accept its judgment that expert witnesses and cross-examination would not add appreciably to its already-expert knowledge of the field. But even if it were possible to delineate relevant markets and submarkets more precisely, there would remain the difficulty of predicting whether, if the SBS venture were disallowed, IBM and Comsat would enter separately, or whether the presence of one of them on the fringes of the industry would exert a pro-competitive effect. Appellants seek to procure testimony from IBM officers about their intentions, and from actual and potential competitors about their reactions to hypothetical competitive situations. Unfortunately, such subjective evidence of the intentions and perceptions of the companies involved is often misleading and unreliable. Even disregarding the ever-present tendency of interested witnesses to adapt the facts to their courtroom strategy, corporate decisionmaking processes are too decentralized and too much the product of compromise to yield clear answers about corporate intentions. This difficulty is greatest when the subject of the inquiry is purely hypothetical: What would IBM have done if the SBS venture had not been available? How would RCA and Western Union behave competitively if IBM or Comsat were “waiting in the wings”? The uncertainty of subjective evidence on such questions has led observers and courts to suggest principal reliance on objective, not subjective, evidence. As the Supreme Court has said, “Potential competition cannot be put to a subjective test. It is not ‘susceptible of a ready and precise answer.’ ” In view of this, the suggested cross-examination of IBM and other corporate officers might well be considered futile. We cannot fault the FCC for making such a judgment. Moreover, we observe that the basic information needed for the SBS Decision was in the possession of the FCC. The hard facts concern the economic power and capability of IBM and Comsat, the nature of the proposed services, the characteristics of the competition, and the capacity of IBM and Comsat to enter the field. All else is inference or speculation. Finally, even though the FCC concluded, based on the limited available information, that Comsat and IBM were unlikely both to enter the field separately, it analyzed the merits of the venture on the assumption that the anticompetitive effects charged by the opposing parties would occur. Even granting that assumption, the FCC concluded that the technological advance, efficient operation, and competitive nudge to AT&T that the SBS venture offers would outweigh the assumed harms. There remained no material issue of disputed fact on which to hold an evidentiary hearing, because the FCC was able to conclude that the SBS license should be approved even if the appellants are correct in their factual speculations. An evidentiary hearing would be a mere waste of time, since it “would not aid in, nor change,” the result. Appellants challenge the FCC’s use of this assumption, quoting the Supreme Court’s statement in United States v. Third National Bank, 390 U.S. 171, 183, 88 S.Ct. 882, 890, 19 L.Ed.2d 1015 (1968): Because the District Court erroneously concluded that the merger would not tend to lessen competition, its conclusion upon weighing the competitive effect against the asserted benefits to the community is suspect. To weigh adequately one of these factors against the other requires a proper conclusion as to each. * * * Appellants infer from this statement that a court or agency may not conduct a balancing of competing factors without first reaching conclusive factual findings based on an evidentiary hearing. We do not read Third National Bank that way. In Third National Bank the District Court erred in its assessment of both competitive consequences of the challenged merger and the public benefits resulting from it. In contrast, in this case we expressly affirm the FCC’s substantive conclusions regarding the competitive consequences and public benefits from the SBS venture. Moreover, the hypothetical balance struck here by the FCC was not based on its actual conclusions about the competitive consequences of the SBS venture, but rather on the assumed consequences posed by appellants. The ultimate balance reached is therefore not subject to the same suspicion as was that reached by the District Court in Third National Bank. The position urged by appellants is directly contrary to the expressed intent of Congress that, in its pre-grant procedures, the FCC “should be guided by rules applicable to a motion for summary judgment * * S.Rep. No. 690, 86th Cong., 1st Sess. 4 (1959). In deciding whether to grant summary judgment a court is not required to reach full factual findings on every issue; if, granting the inferences and assumptions of the party opposing summary judgment, the moving party is entitled to judgment as a matter of law, then the court must grant the motion. The FCC did as much here. B. The Need for Expedition Ever since the decision in Domsat II the FCC has designed its procedures to minimize delay in developing the domestic satellite communications industry. This court has specifically approved that approach. Network Project v. FCC, supra, 511 F. 2d at 797 n.13. In this dynamic and technologically innovative industry, a proposed venture may become obsolete in just a few years. Even without regulatory delay, a satellite firm is faced with the daunting prospect of time-consuming research and construction, which entail advance planning and risky lead time — and which may lead to naught. To delay a proposed project six months will increase capital cost and diminish technological advantage; to delay it a year or more may destroy its attractiveness as an investment. Unless this proceeding is further delayed, an SBS satellite will be operating in early 1981. If it is remanded for trial-type hearings, the SBS launching will be much delayed, if not precluded altogether. We recognize that the need for expedition will not justify an agency’s failure to carry out its statutory responsibilities, but the relative urgency of a decision is a thoroughly appropriate factor for an agency to consider when crafting its pr