Assuming, however, that the Sherman Anti-Trust Law can be repealed, and that the Roosevelt-Taft policy of recognition tempered by regulation be adopted, the question remains as to the manner in which such a policy can best be carried out.  Certain essential aspects of this question will not be discussed in the present connection.  The thorough carrying out of a policy of recognition would demand a Federal incorporation act, under which all corporations engaged in anything but an exclusively local business would be obliged to organize; but, as we have already seen, such an act would be unconstitutional as applied to many technically domestic corporations, and it would probably be altogether unconstitutional, except, perhaps, under limitations which would make it valueless.  It may be that some means will be found to evade these Constitutional difficulties, or it may not be.  These are matters on which none but the best of Constitutional lawyers have any right to an opinion.  But in any event, I shall assume that the Federal government can eventually find the legal means to make its policy of recognition effective and to give the “trust” a definite legal standing.  What sort of regulation should supplement such emphatic recognition?

The purpose of such supervision is, of course, to prevent those abuses which have in the past given the larger corporation an illegal or an “unfair” advantage over its competitors; and the engine which American legislatures, both Federal and state, are using for the purpose is the commission.  The attempt to define in a comprehensive statute just what corporations may do, or must in the public interest be forbidden from doing, is not being tried, because of the apparent impossibility of providing in advance against every possible perversion of the public interest in the interest of the private corporation.  The responsibility of the legislature for the protection of the public interest is consequently delegated to a commission whose duties are partly administrative and partly either legislative or judicial.  The most complete existing type of such a delegated power is not the Federal Inter-state Commerce Commission, but the Public Service Commissions of New York State; and in considering the meaning and probable effects of this kind of supervision I shall consider only the completed type.  A Federal Inter-state Commerce Commission which was fully competent to supervise all inter-state commerce and all commerce competing therewith would necessarily possess powers analogous to those bestowed upon the New York Public Service Commissions.