challenge that action. The Court also found that Congress, when passing the Glass-Steagall Act, arguably intended to protect nonregulated parties from competition by national banks. In Investment Company Institute, which concerned the operation of investment funds by national banks, the Court held that one of the very plaintiffs in the instant case was arguably within the zone of protection carved out by the Glass-Steagall Act. The potential competitive injury to NYSE and ICI in the case at bar is indistinguishable from that suffered by ICI in Investment Company Institute. Defendant's argument that NYSE and ICI actually benefit from the operation of AIS because it attracts new investors to the market lacks substance. If plaintiffs did not feel substantially threatened by AIS, they would not have undertaken this burdensome litigation.
A more substantial issue raised by defendant is the power of the court to review the opinion letter in question. Defendant submits that the opinion letter is not subject to review under section 10 of the Administrative Procedure Act, 5 U.S.C. § 704 (1970), because it is not legally binding on any party or the Comptroller's Office and because the plaintiffs conduct is not directly affected by the Comptroller's interpretation of the statute.
The propriety of reviewing a statutory interpretation by an agency responsible for administering the act has been explored at length by the Supreme Court in Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), and by the Court of Appeals for the District of Columbia Circuit in National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689 (D.C. Cir. 1971) and Continental Air Lines, Inc. v. CAB, 173 U.S. App. D.C. 1, 522 F.2d 107 (D.C. Cir. 1975) (en banc). Abbott Laboratories established that in deciding whether an agency ruling is ripe for judicial review a court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. at 148-49. Further, doubt as to justiciability must be resolved in favor of the plaintiff since the Administrative Procedure Act "embodies the basic presumption of judicial review . .." Id. at 140.
The fitness of a particular ruling for judicial review depends upon its finality and the court's ability to discern and resolve the legal issues the ruling presents. See Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162-63, 18 L. Ed. 2d 697, 87 S. Ct. 1520 (1967); National Automatic Laundry and Cleaning Council v. Shultz, supra, at 694. An opinion letter signed by the head of an agency, not indicating on its face that it is tentative, and growing out of substantial deliberation is "presumptively final" for purposes of judicial review. National Automatic Laundry and Cleaning Council v. Shultz, supra, at 701-02. This is so even though the opinion legally could be reconsidered by the agency at any time. Thus, in Continental Air Lines the court of appeals reviewed the merits of a CAB order which was not legally binding on the agency. See 522 F.2d at 123, 124-25. The agency action reviewed in NALCC similarly did not bind the agency, and, in fact, was an opinion letter interpreting a portion of the statute administered by the agency. See 443 F.2d at 692, 702. Opinion letters signed by an agency head are also "presumptively final" even though they have no legal effect on parties subject to agency regulation; the opinion need only affect those subject to regulation and their competitors as a practical matter. See Continental Air Lines, Inc. v. CAB, supra, at 124-25, citing, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). In the instant case, the opinion letter is signed by the agency head, shows no indication of being tentative, follows substantial deliberation, and, as a practical matter, encourages national banks to institute AIS programs. It thus appears that the letter is sufficiently final to permit judicial review of its merits.
The letter in issue is also fit for judicial review in all other respects since the court can discern and resolve the legal issues involved. The principal factor considered in judging this aspect of an action's fitness for review is whether the case turns on a "purely legal" question. See Abbott Laboratories, Inc. v. Gardner, supra, at 149; Continental Air Lines, Inc. v. CAB, supra, at 126; National Automatic Laundry and Cleaning Council v. Shultz, supra, at 695. There is no doubt that the case at bar presents a "purely legal" question only, the validity of the Comptroller's construction of the Glass-Steagall Act. Further, it is a legal question properly before this court since the Supreme Court has stated that Congress did not intend to preclude judicial review of actions taken by the Comptroller in furtherance of his obligations under the Act. See Investment Company Institute v. Camp, supra, at 620; Association of Data Processing Service Organizations, Inc. v. Camp, supra, at 157.
Considering the second prong of the test set out in Abbott Laboratories, the court finds that the plaintiffs will suffer substantial hardship if the court withholds consideration of the Comptroller's letter at this time. National banks are presently offering AIS to customers as a direct result of the Comptroller's ruling, thereby injuring the plaintiffs who, heretofore, were free of bank competition in the securities field. Defendant argues that plaintiffs are not directly subject to regulation by the Comptroller and thus are not facing the dilemma of obeying a questionable ruling or accepting the consequences of violating it. This, of course, was precisely the position of the plaintiffs in Continental Air Lines and NALCC and it was because the plaintiffs faced such a dilemma that the courts in those cases determined that withholding review would cause hardship. See 522 F.2d at 126; 443 F.2d at 696. The plaintiffs in Continental Air Lines and NALCC faced a "Hobson's choice" for a simple reason, they were adversely affected by the agency action. The position of plaintiffs in the case at bar is the other side of this coin. The agency action benefited those directly regulated by the statute; only non-regulated parties, like the plaintiffs, are hurt by the Comptroller's letter and, consequently, only non-regulated parties would seek to challenge the letter. Prohibiting review in this case because plaintiffs are not faced with the prospect of having to disobey a regulation would undermine the Supreme Court's holding in Data Processing that competitors of parties directly affected by agency action have standing to challenge such action. Indeed, the need for review is even stronger in the instant case than it was in Continental Air Lines or NALCC since the agency actions attacked in Continental and NALCC would come under judicial scrutiny when a party chose to disobey the agency, but the action attacked by plaintiffs here will never come under review if this case is dismissed.
Having examined the Comptroller's letter here under attack in light of the principles set forth in Abbott Laboratories, NALCC, and Continental Air Lines, the court is convinced that judicial review is appropriate. The factors justifying review in the instant case are well summarized by the following passage from NALCC :
When a general, interpretative ruling signed by the head of an agency has been crystallized following reflective examination in the course of the agency's interpretative process, and is accordingly entitled to deference not only as a matter of fact from staff and citizenry expected to conform but also as a matter of law from a court reviewing the question, there coexist both multiple signposts of authoritative determination, finality and ripeness, and a concomitant indication that the resultant pointing toward prompt judicial review will benefit the total administrative process by resolving uncertainties without intolerable burden or disruption.