Foreign Relations of the United States, 1958–1960, Foreign Economic Policy, Volume IV

126. Memorandum of Discussion at the 451st Meeting of the National Security Council⁰

July 15, 1960.

[Here follow a paragraph listing the participants at the meeting and agenda items 1–6.]

7. Review of Anti-Trust Laws Affecting U.S. Foreign Commerce (NSC Action No. 1356–c)¹

Mr. Gray briefed the Council on the President’s action on this subject. (A copy of Mr. Gray’s Briefing Note is filed in the Minutes of the Meeting and another copy is attached to this Memorandum.)

The National Security Council:²

Noted a report by the Special Assistant to the President for National Security Affairs:

a. That the President, upon the recommendation of the Deputy Attorney General and the Chairman, Council on Foreign Economic Policy, had agreed to rescind the request to the Council on Foreign Economic Policy for a study on the subject which is contained in NSC Action No. 1356–c.

b. That in taking the action in a above the President had noted that the Departments of State and Justice are implementing the following recommendations relating to anti-trust and foreign investment contained in the report prepared under the direction of Mr. Ralph I. Straus for the Department of State:³

“We recommend authoritative indication of the extent to which the Department of Justice will take into account elements of legal or quasi-legal compulsion or business necessity in assessing the legality of a foreign arrangement under the anti-trust laws.

“We recommend clarification of and more information concerning the willingness of the U.S. Government to consider in advance the legality under anti-trust laws of proposed investments abroad.

“We recommend that, barring unusual circumstances, time should be permitted for consultation with representatives of the foreign government affected if the basis for the proposed antitrust action might be removed by negotiation or if advance notice might soften the impact on foreign opinion.”

Note: The above action, subsequently transmitted to the Chairman, CFEP, the Secretary of State, and the Attorney General.

Robert H. Johnson

Attachment

⁴

Briefing Note Prepared by the Director of the National Security Council Planning Board Secretariat (Johnson)

July 14, 1960.

REVIEW OF ANTI-TRUST LAWS AFFECTING U.S. FOREIGN COMMERCE

In connection with an NSC action on the oil cartel case early in this Administration [April 22, 1953]⁵ the Attorney General was requested to restudy anti-trust laws with particular attention to the provisions relating to operations by Americans outside the United States. In March 1955, when the Council considered the Attorney General’s report, it requested the Council on Foreign Economic Policy to undertake a further review of the problem which would consider the desirability of changes in the anti-trust laws and their administration—the Attorney General’s report focused largely upon examination of existing law rather than upon changes that might be required.

The CFEP established an interagency task force which prepared a report on the subject.⁶ However, Attorney General Brownell in May 1956 requested that CFEP consideration of the task force report be deferred on the grounds that such consideration might endanger enactment of other anti-trust legislation then before Congress. The President agreed to such deferral.

As a result of a recent inquiry which I initiated through Mr. Randall, Deputy Attorney General Walsh has advised that he adheres to Mr. Brownell’s earlier view that little practical purpose would be served by NSC consideration of the CFEP task force report. He has suggested that the April 1959 report of the Straus Committee to the Under Secretary of State, recommending treatment of the problem of the application of anti-trust laws to overseas operations through procedures short of legislation, constitutes a more constructive approach to the problem. Mr. Randall has concurred in Mr. Walsh’s views and has recommended that this subject be removed from the NSC agenda.

The Planning Board has also agreed with these recommendations and has proposed that the Council record show that the Departments of State and Justice are implementing the three recommendations of the Straus report which relate to the effect of anti-trust laws on foreign investment. The President has concurred in these recommendations.

0. Source: Eisenhower Library, Whitman File, NSC Records. Top Secret. Drafted by Robert H. Johnson on July 18.
1. Dated March 24, 1955; see Foreign Relations, 1955–1957, vol. X, pp. 524–529.
2. Paragraphs a and b and the note constitute NSC Action No. 2266. (Department of State, S/S–NSC (Miscellaneous) Files: Lot 66 D 95, Records of Action by the National Security Council)
3. See the source note, Document 165.
4. Secret.
5. Brackets in the source text. For the memorandum of discussion at the 140th NSC meeting, see Foreign Relations, 1952–1954, vol. I, pp. 1351–1353.
6. Not found.