products would be unacceptable to those who relied on the specifications. ASTM claims this Indictment damages it in two ways: it discourages reliance on its specifications and it discourages participation on the specification-writing committees by representatives of industry who would otherwise serve voluntarily and without compensation. In connection with this latter contention, ASTM particularly urges that members in the producer category are reluctant to serve for fear that, if a specification promulgated cannot be met by some of their competitors, even though the standard is scientifically sound, they will be vulnerable to charges similar to those of Paragraph 7(b) or 15(f) of the Indictment. Because ASTM is not made a defendant, it argues that it has no way to vindicate itself other than by this application. In support of its application, ASTM makes these arguments, inter alia:
(1) ASTM argues that there was no evidence presented to the jury in the Johns-Manville case to substantiate paragraphs 7(b) and 15(f) of the Indictment.
(2) ASTM argues that in point of fact it is not a member of this or any other conspiracy in restraint of trade, nor is it the foil of any such conspiracy, and that, furthermore, ASTM is so constituted that an involvement in such a conspiracy is an impossibility in fact. ASTM offered evidence in support of its positions at the June 16 hearing.
(3) ASTM argues that it is impossible, as a matter of law, for it to be a member or means of a conspiracy in restraint of trade because its activities fall within the doctrine of Eastern R.R. Presidents Conf. v. Noerr Motor, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961). ASTM's position is that because its specifications are adopted without reservation or question by various units of government, those who wish to influence ASTM specifications are entitled to do so as part of the citizen's freedom to petition his government or are entitled to at least a freedom of expression analagous to that right.
This court has jurisdiction to entertain the application of ASTM. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 139-141, 71 S. Ct. 624, 95 L. Ed. 817 (1951). See, also, Application of United Electrical, Radio & M. Workers, 111 F.Supp. 858 (S.D.N.Y.1953), and In re Presentment by Camden Co. Grand Jury, 34 N.J. 378, 169 A.2d 465 (1961). In the Joint Anti-Fascist Fascist case, supra, 341 U.S. at 140-141, 71 S. Ct. at 632, the court said that '* * * the standing of the petitioners to bring these suits is clear. The touchstone to justiciability is injury to a legally protected right and the right of a bona fide charitable organization to carry on its work, free from defamatory statements of the kind discussed, is such a right.'
Accordingly, the court will affirm those requested findings of fact which appear to it to be justified by the record in the instant case. The Government may make an appropriate application if it comes forward in the trial of the remaining defendants with evidence contrary to these findings and offers this record at a subsequent hearing in this action. It is not appropriate to rule on many of the requested conclusions of law, since such a ruling would involve an advisory opinion. Cf. Pennington v. United Mine Workers of America, 325 F.2d 804 (6th Cir. 1963), cert. granted 84 S. Ct. 1333 (1964).
The first paragraph of ASTM's able brief, filed June 30, which is attached to this Memorandum Opinion, contains this language:
'The crucial issue for this Court to resolve is whether the standardization activities conducted by ASTM are so valuable and necessary to the public, and the possibility that these activities could ever constitute an unreasonable restraint of trade so far removed, that the Society and its activities should be accorded some measure of protection under the anti-trust laws.'
The authorities cited above show that ASTM is entitled to protection against defamation, but no authorities have been produced showing that all activity it may undertake is exempt from the antitrust laws. Conceivably, though it is most unlikely, ASTM could fall into the control of selfish persons unlike the dedicated, selfless scientists who now guide it. For this reason, several of the sweeping conclusions of law requested by ASTM's able counsel cannot be affirmed. The courts will be available for the protection of ASTM in its fine work on a case by case basis until such time as the legislature provides more definite rules for application of the antitrust laws to its work. Cf. § 7(3), Restrictive Trade Practices Act of 1956 (4 & 5 Eliz. 2, c. 68; 36 Halsbury's Statutes of England 931), referred to at pp. 3-4 of the above-mentioned brief filed 6/30/64. The right of any member of ASTM to state his or her views on the proposed standards being considered by that Association is clear. See, for example, Brotherhood of Railroad Trainmen v. Virginia, 84 S. Ct. 1113 (1964); N.L.R.B. v. Fruit and Vegetable Packers, etc., Local 760, 84 S. Ct. 1063 (1964); Eastern R.R. Presidents Conf. v. Noerr Motor, supra, 365 U.S. at 137, 81 S. Ct. 523.
For the foregoing reasons, the court does have jurisdiction of this application and of the related application in Misc. 2740. If no Motions or appeals challenging this Memorandum Opinion or the attached order are filed within thirty days, the Clerk will be directed to attach to paragraphs 7(b) and 15(f) of the Indictment in Criminal No. 21118 a reference to this document so that the court's records will not improperly reflect on a corporation which is entitled to the presumption of innocence.