We also described the subsidy program and the cattle stabilization plan contained in the Directive of the Office of Economic Stabilization issued October 25, 1943 ( 8 F.R. 14641). In Heinz et al. v. Bowles, Em.App. 1945, 149 F.2d 277, and upon reconsideration, 1945, 150 F.2d 546, we passed upon the current validity of RMPR 169 as applied to the non-processing slaughterers, who are the most numerous group in the industry though they account for only about 15 per cent of the national cattle slaughter. The Administrator recognized that some special provision would have to be made for this important segment of the industry if the non-processing slaughterers were not to be forced out of business.

In Heinz v. Bowles, 1945, 149 F.2d 277, we first held that RMPR 169 was invalid in so far as the maximum prices therein for beef carcasses and wholesale cuts were applicable to nonprocessing slaughterers, an important segment of the industry. But upon reconsideration, on July 31, 1945, 150 F.2d 546 and after further evidence was submitted pursuant to stipulation of the parties, we concluded "that the record now contains substantial evidence which, especially in view of recent revisions and enlargements of the subsidy payments, amply supports the Administrator's contention that the regulation is presently valid even as applied to the nonprocessing slaughters, whatever it may have been at some period or periods in the past." We pointed out that in that proceeding we were not called upon to render a declaratory judgment as to the validity, or invalidity, of RMPR 169 as of some date in the past.

See Armour Co. v. Bowles, Em.App. 1945, 148 F.2d 529, 531, certiorari denied 1945, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1989. But lack of livestock maximum prices would not of itself render invalid the maximum prices on meat if the latter permitted slaughterers a sufficient margin for profitable operation at prevailing livestock prices. Heinz et al. v. Bowles, Em.App., 149 F.2d 277, and, upon reconsideration, Em.App. 1945, 150 F.2d 546; Ben H. Rosenthal Co., Inc. v. Porter, Em.App. 1946, 158 F.2d 171. Complainant makes another objection, which is applicable to both regulations.

RMPR 169 has been before this court in many previous cases, in which competent counsel challenged the regulation on a variety of grounds, not, however, advancing this particular argument. See Armour Co. v. Bowles, Em.App., 1945, 148 F.2d 529, certiorari denied 1945, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1989; Heinz v. Bowles, Em.App., 1945, 149 F.2d 277, certiorari denied, 1945, E. Kahn's Sons Co. v. Bowles, 326 U.S. 719, 66 S.Ct. 24, 90 L.Ed. 426; and on reconsideration, Em.App., 1945, 150 F.2d 546; Oswald Hess Co. v. Bowles, Em.App., 1945, 148 F.2d 543, certiorari denied 1945, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1990; Ben H. Rosenthal Co., Inc. v. Porter, Em. App., 1946, 158 F.2d 171; Counselman v. Fleming, Em.App., 1947, 161 F.2d 203, certiorari denied, 1947, 331 U.S. 861, 67 S.Ct. 1756. That, of course, does not disprove the soundness of the new argument; but it does suggest to us that the argument should be examined with a robust skepticism. Upon full consideration we have concluded that the point is not well taken.

It is objected that the maximum prices for veal, during the period in question, were arbitrary and capricious as applied to non-processing slaughterers in that this distinct segment of the industry could only operate at a loss under the applicable prices. Cf. Heinz v. Bowles, Em.App., 1945, 149 F.2d 277, and, on reconsideration, Em.App., 1945, 150 F.2d 546, involving the validity of RMPR 169 maximum beef prices as applied to non-processing slaughterers of cattle. Complainant has failed to sustain the burden of proof resting upon him in this matter.

In several previous cases the related regulation, Revised Maximum Price Regulation No. 169 — Beef and Veal Carcasses and Wholesale Cuts ( 7 F.R. 10381) has been under fire. Armour Co. v. Bowles, Em.App., 1945, 148 F.2d 529, certiorari denied, 1945, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1989; Oswald Hess Co. v. Bowles, Em.App., 1945, 148 F.2d 543, certiorari denied, 1945, 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1990; Heinz v. Bowles, Em.App., 1945, 149 F.2d 277, and upon reconsideration, Em.App., 1945, 150 F.2d 546; The E. Kahn's Sons Co. v. Bowles, Em. App., 1945, 149 F.2d 277, certiorari denied, 1945, 326 U.S. 719, 66 S.Ct. 24; Ben H. Rosenthal Co., Inc., v. Porter, Em.App., 1946, 158 F.2d 171. We refer to our opinion in Armour Co. v. Bowles, Em.App., 148 F.2d 529, at pages 531-533, for a somewhat detailed statement of the evolution of the price control program as applied to meat.

Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. The question of good faith involved whether the appellants, and that term in this connection includes their attorneys, really believed that the Emergency Court of Appeals would, if the complaint was filed, hold the regulations invalid. That, of course, depended to a large extent upon how its probable action should be predicated in view of what it had already decided in Heinz v. Bowles, Em.App., 150 F.2d 546; Armour Co. v. Bowles, Em.App., 148 F.2d 529; Oswald Hess v. Bowles, Em. App., 148 F.2d 543, 546 and any other cases involving similar issues. It was fair and reasonable to assume that there would be enough consistency in decision as to make such cases a sound basis for prediction. While the trial judge made no formal, direct finding of lack of good faith he did say when denying the motion in arrest of judgment, "If this Court had jurisdiction, the Court would hold that regulation was constitutional, and in fact the Court of Appeals has upheld this very regulation."

In Armour Co. v. Bowles, Em. App. 1945, 148 F.2d 529, certiorari denied 325 U.S. 871, 65 S.Ct. 1411, 89 L.Ed. 1989, we upheld the general validity of RMPR 169. But the non-processing slaughterers as a group presented a distinct problem, and from the movement of cattle prices it became apparent that some form of special relief would have to be provided for this important segment of the industry — hence the extra subsidy of 80 cents per cwt., without which RMPR 169 would have become invalid as to such groups of slaughterers. See Heinz v. Bowles, Em.App. 1945, 149 F.2d 277, and, on reconsideration, Em.App. 1945, 150 F.2d 546. As we pointed out in Illinois Packing Co. v. Snyder, 1945, 151 F.2d 337, 339, it is hardly accurate to describe the meat subsidies as a gratuity or bounty. "Such subsidies are closely articulated with the price control program, and, as contemplated by Congress, may operate as compensatory in nature so as to validate a lower level of legal maximum prices than otherwise would be permissible under the standards laid down in the Price Control Act for the guidance of the Price Administrator."

But under the express terms of Section 204(b) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 924(b), the "effectiveness of a judgment of the court enjoining or setting aside, in whole or in part, any such regulation, order, or price schedule shall be postponed until the expiration of thirty days from the entry thereof." On April 2, 1945, four days after its entry, the Emergency Court of Appeals vacated the judgment and, after reconsideration, dismissed the original complaint on July 31, 1945. Heinz v. Bowles 150 F.2d 546. It thus appears that the judgment upon which the defendant relies never did become effective to set aside the regulation.

The same Court on April 2, 1945, vacated the judgment in the Heinz case and granted leave "to either party to introduce directly to the Court, on or before April 30, 1945, or such further time as the Court may hereafter allow, evidence directed to the validity of the Regulation insofar as the maximum prices therein for beef carcasses and wholesale cuts are applicable to non-processing slaughterers as defined in the Directive of the Office of Economic Stabilization dated October 26, 1943." In an opinion of the Emergency Court of Appeals filed July 31, 1945, in the Heinz case, 150 F.2d 546, the Court has held Revised Maximum Price Regulation No. 169 valid as to non-processing slaughterers and refused to set the regulation aside, stating: "It is sufficient to state our conclusion that the record now contains substantial evidence which, especially in view of recent revisions and enlargements of the subsidy payments, amply supports the Administrator's contention that the regulation is presently valid even as applied to the non-processing slaughterers, whatever it may have been at some period or periods in the past. In this proceeding we are not called upon to render a declaratory judgment as to the validity, or invalidity, of RMPR 169 as of some date in the past.