IRVING R. KAUFMAN, Circuit Judge:
The long shadows of history enshroud the precise moment when the first grand jury was established in an English-speaking community. It appears, however, that a rudimentary ancestor of our modern grand jury was an integral element of the system of justice in medieval England over eight hundred years ago. Our forefathers carried
Today, we are asked to lift this veil of secrecy. The States of Connecticut, Rhode Island, Vermont, New York, Colorado, New Jersey, North Carolina, Maine, New Hampshire, Maryland, Texas, and Wisconsin, and the Commonwealths of Massachusetts and Virginia ("States") would have us determine whether section 4F(b) of Title III of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 15f(b),
The journey along the path leading to this appeal began several years ago. In 1979, the Antitrust Division of the United States Department of Justice commenced an investigation of the marketing practices of Cuisinarts, Inc., a corporation that distributes
Both actions were substantially resolved in December 1980. Cuisinarts entered, and the court accepted, a plea of nolo contendere on the criminal charge. The court imposed a fine of $250,000. In the civil action, the United States and Cuisinarts stipulated to the submission of a proposed final judgment. In accordance with the terms of the proposed judgment, which the court adopted, Cuisinarts was enjoined from, inter alia, fixing the prices at which its food processors could be sold. This action was concluded in March 1981.
This litigation by the federal government, we note, involved the first federal criminal prosecution for vertical price fixing in many years — at least since the penalty for violating the Sherman Act was increased to a felony in 1974. Accordingly, it provided the impetus for the institution of a large and proliferating number of suits by state governments and private consumers. Shortly after the return of the federal indictment, private antitrust actions against Cuisinarts and its retailers commenced to flood the federal courts. To ease the burden this litigation imposed both on parties and on our judicial system, in January 1981, the Judicial Panel on Multidistrict Litigation ordered, pursuant to 28 U.S.C. § 1407, that eight such actions were to be consolidated for pretrial proceedings in the District of Connecticut. By March, in accordance with the Panel's orders, four additional cases against Cuisinarts were transferred and consolidated with those already before the court, including a parens patriae action brought by the Commonwealth of Massachusetts. In the same month, a parens patriae suit instituted by the State of New Jersey was transferred to the District of Connecticut. As a result, thirteen civil actions were before the court for consolidated pre-trial proceedings. Of these, seven included claims pursuant to Federal Rules of Civil Procedure, Rule 23 for the certification of a nationwide class of purchasers of Cuisinarts food processors.
The States, after receiving notice from the Department of Justice of the indictment against Cuisinarts,
In considering these motions, Judge Cabranes found that section 4F(b) was not intended to eliminate the showing of compelling and particularized need required for disclosure of grand jury materials. Because the States had failed to meet this standard, he denied the motions but indicated that such denial would be without prejudice to a renewed application for disclosure upon demonstrating particularized need. This appeal followed.
We are being urged in this interesting case to erode further the secrecy provisions of Fed.R.Crim.P. 6(e) by making available the grand jury minutes and documents in toto, without even a showing of "particularized need." Congress enacted the parens patriae provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. §§ 15c-15h (1976), to provide a meaningful remedy for small consumers injured by antitrust violations. H.R.Rep.No. 499, 94th Cong., 2d Sess. 4-8 (1975), reprinted in  U.S.Code Cong. & Ad.News 2572-78. The provisions of the Act authorize state attorneys general to bring treble damage actions on behalf of all state residents who have been injured by these violations. 15 U.S.C. § 15c (1976). Section 4F(b) of the Act offers assistance to state attorneys general in the prosecution of such suits by providing in pertinent part:
In analyzing the issue of disclosure pursuant to section 4F(b), we are required to weigh two fundamental questions of statutory construction — whether grand jury materials fall within the "investigative files or other materials" language of section 4F(b) and, if so, whether their disclosure is forbidden because section 4F(b) allows release only "to the extent permitted by law."
The States argue that, although the statutory language makes no mention of grand jury materials, such materials in possession of the Department of Justice are part of its "investigative files or other materials." They do acknowledge, however, that the
Nevertheless, they overlook the essence of this holding. The grand jury, while maintaining independence in many areas, is fundamentally an arm of the judiciary. See Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960). It is not simply a tool or instrument of the executive or legislative branch. See United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972). Indeed, grand jury proceedings remain the records of the courts, and courts must decide whether they should be made public.
Since grand jury materials are traditionally the records of the Judicial Branch, it would be curious logic indeed to deduce from this premise that such materials are included within the Department of Justice's files or materials. We are not unsympathetic to the States' assertion that little would be available if grand jury materials were excluded. Momentary reflection, however, reveals that such a reading of the statute does not foreclose the possibility of securing a broad spectrum of other useful materials from the Justice Department's files. For instance, state attorneys general could procure information that the Justice Department obtained through civil discovery and through investigations by its Staff, staff memoranda, and government data and analyses. In addition, the states could gather at least as much, or perhaps more, information through their own civil discovery. Our interpretation of the statutory language, therefore, does not thwart antitrust enforcement. Rather, it reflects the policy that grand jury secrecy is "older than our Nation itself," Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 399, 79 S.Ct. at 1240.
Our holding is not grounded solely on the "investigative files or other materials" language because section 4F(b) clearly indicates that Congress did not intend to create new standards for disclosure of grand jury materials to state attorneys general. Section 4F(b) provides, also, that investigative files and other materials are to be made available only "to the extent permitted by law." 15 U.S.C. § 15f(b). Following well-settled principles of statutory construction, we begin with the language of the statute itself. See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). As a rule, we must regard the language of the statute as conclusive unless the legislative history contains a direct expression of congressional intent to the contrary. Id.
The law governing grand jury disclosure is set forth in Federal Rules of Criminal Procedure, Rule 6(e)
Rule 6(e)(3)(C)(i) does not delineate the standards for determining when materials should be released. The Supreme Court has firmly established, however, that Rule 6(e)(3)(C)(i) specifically prohibits granting access to grand jury materials unless "particularized need" is shown by the requesting party. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 & n.12, 99 S.Ct. 1667, 1674 & n.12, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 872, 86 S.Ct. 1840, 1850, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 400, 79 S.Ct. at 1241; United States v. Procter & Gamble Co., supra, 356 U.S. at 683, 78 S.Ct. at 986.
This restrictive standard gives voice to the important policy considerations which underlie the historic rule of grand jury secrecy. Generally, it has been recognized as we have stated, that the policy of secrecy is essential to the integrity of the grand jury.
Of even greater importance, secrecy safeguards the innocent. A glaring injustice could be inflicted and irreparable injury caused to the reputation of a person if it were to become known that there is or ever was before the grand jury any proceeding concerning him even if he were not subsequently indicted.
The States, however, argue that state attorneys general need not establish particularized need to obtain disclosure, stating that in the Hart-Scott-Rodino Act, Congress expressly acknowledged the special position state attorneys general occupy in Congress's plan for antitrust enforcement. In sum, the States assert that in enacting section 4F(b) Congress balanced the need for disclosure against the interest in grand jury secrecy and reached a resolution in favor of disclosure without particularized need. See also United States v. Colonial Chevrolet Corp., 629 F.2d 943 (4th Cir. 1980), cert. denied sub nom. Certain Unindicted Individuals & Corps. v. United States, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981); United States v. B. F. Goodrich Co., 619 F.2d 798 (9th Cir. 1980).
We disagree with the States' analyses. Section 4F(b), in the most direct language, requires that files be made available only "to the extent permitted by law." At the time this section was enacted, the applicable law included both Rule 6(e) and the Supreme Court decisions requiring particularized need. See Dennis v. United States, supra; Pittsburgh Plate Glass Co. v. United States, supra; United States v. Procter & Gamble Co., supra. To argue, as do the States, that Congress intended district courts to apply only the language of Rule 6(e)(3)(C)(i) and to ignore the particularized need standard when deciding a section 4F(b) request for disclosure denigrates, perhaps unintentionally, Congress's legal acumen.
Certainly, it may be presumed that a knowledgeable body of legislators, dealing extensively with an innovative approach to antitrust enforcement, was well aware that a Supreme Court decision interpreting a statute is at least as much law as a procedural rule promulgated by the Supreme Court and approved by Congress. Furthermore, the phrase "to the extent permitted
The suggestion of the States seems particularly implausible when we recognize that Congress directed section 4F(b) to the Attorney General, not to the district courts that apply the particularized need standard. Nothing in section 4F(b) refers to court-ordered disclosure. Nor is reference made to judicial cooperation with the Attorney General to encourage the enforcement of civil antitrust actions. We are confident that if Congress had intended that district courts should no longer consider requests by state attorneys general to be governed by the particularized need standard, it would have made its intention crystal clear in light of its awareness of the issue.
If more is needed, it is clear that the legislative history, although spare, negates any inference that Congress intended section 4F(b) to modify the standard for disclosure of grand jury materials. During debate, Senator Roman Hruska objected to section 4F(b) stating that it could turn the Department of Justice into a "massive document distribution center." 122 Cong.Rec. 29144 (1976). Responding to this criticism, Senator James Abourezk, Senate Floor Manager for the bill, pointed out: "The section specifically limits the Attorney General's power to release documents to whatever his powers are under existing law. Under existing law, he cannot turn over materials given in response to a grand jury demand or to a civil investigative demand."
Only one other portion of the legislative history directly sheds light upon Congress's understanding of the appropriate standard
Finally, the States contend that the purpose of the Hart-Scott-Rodino Act — to foster effective state antitrust enforcement — places state attorneys general in a preferred position relative to that of private plaintiffs in the enforcement of federal antitrust laws. Therefore, they argue, Congress must have intended to relieve them of the requirement of showing particularized need. The Fourth and the Ninth Circuits have adopted this rationale, see United States v. Colonial Chevrolet Corp., supra; United States v. B. F. Goodrich Co., supra, while the Seventh Circuit has expressly rejected it. See In re: State of Illinois, supra. We find the latter position to be sounder. We do not believe that simply because Congress augmented the role of state attorneys general in the federal antitrust enforcement scheme, it necessarily, or logically follows that Rule 6(e) was diluted sub silentio and should, therefore, be read to alter the standard for release of grand jury materials.
It is true that by authorizing states to institute civil antitrust actions as parens patriae, the Hart-Scott-Rodino Act carves out a special place for state governments in enforcing federal antitrust laws. These actions, however, were essentially directed toward remedying inadequacies in the existing scheme of enforcement which affected the usefulness of private consumer class actions and were barriers to suits brought by small consumers. See Scher, Emerging Issues Under the Antitrust Improvements Act of 1976, 77 Colum.L.Rev. 679, 711-39 (1977). The basic problems addressed were the difficulty of achieving class certification of consumer actions pursuant to Federal Rules of Civil Procedure, Rule 23, see H.R. Rep.No.499, 94th Cong., 2d Sess. 6-8 (1975), reprinted in  U.S.Code Cong. & Ad.News 2576-77, and the complexity of measuring and distributing damages in class actions, see id. at 11-17, reprinted in  U.S.Code Cong. & Ad.News 2583-84; Kintner, Griffin & Goldston, The Hart-Scott-Rodino Antitrust Improvements Act of 1976: An Analysis, 46 Geo.Wash.L.Rev. 1, 19-20 (1977). In effect, the thrust of Title III of the Act was to overcome obstacles to private class actions through enabling state attorneys general to function more efficiently as consumer advocates. See H.R. Rep.No.499, 94th Cong., 2d Sess. 8 (1975), reprinted in  U.S.Code Cong. & Ad.News 2578. Accordingly, Congress removed the barrier presented by Rule 23 by eliminating the requirement of class certification in parens patriae actions. See 15 U.S.C. § 15c(a). In addition, it made the actions less complex by permitting damages to be computed through aggregation techniques. See 15 U.S.C. § 15d.
As Judge Cabranes correctly pointed out, discovery issues were not of pressing moment to the draftsmen. They responded primarily to the concern that the individual consumer could not hope to employ the investigative resources necessary to uncover a possible conspiracy in violation of the antitrust laws. See H.R.Rep.No.499, 94th Cong. 2d Sess. 5-8, reprinted in  U.S.Code Cong. & Ad.News 2575-76. Such an inability, the draftsmen clearly were aware, could be rectified by garnering the discovery resources of the class or the state government in a parens patriae suit. Thus, we conclude, as did Judge Cabranes, that the draftsmen's actual purpose was to mitigate the problems posed by the individual consumer's paucity of financial resources. Surely, if Congress had perceived limitations imposed upon discovery by the Federal Rules of Civil Procedure or the Federal Rules of Criminal Procedure as deterrents to antitrust enforcement, it would have raised and
Moreover, both in these and in other circumstances, governmental and other entities acting in the public interest have been required to meet the standard of particularized need when requesting grand jury materials. See, e.g., In re: State of Illinois, supra; Texas v. United States Steel Corp., 546 F.2d 626 (5th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); Note, Disclosure of Grand Jury Materials in Parens Patriae Actions, 81 Colum. L.Rev. 410, 417-19 (1981). Indeed, we, for instance, have recently denied the request of a public entity, the Grievance Committee of the Connecticut State Bar, for access to grand jury materials. United States v. Sobotka, 623 F.2d 764 (2d Cir. 1980). We acknowledged that the Committee was a public entity charged with performing a duty in the public interest — maintaining the integrity of the legal profession. Id. at 767. We refused to release the materials, nevertheless, because the Committee had not established particularized need. Id. at 768. That standard, we noted, applies to public entities as well as private parties. Id.
To summarize what we have concluded, we note that the decisions of the Supreme Court, the language of the statute and its legislative history do not lead us to the conclusion the States would have us reach. Rather than modifying the law governing release of grand jury materials, the statute distinctly and precisely states that investigative files or other materials shall be made available only "to the extent permitted by law." Indeed, as we have noted, an examination of the legislative history reveals a forceful indication that section 4F(b) was not intended to transform the existing law of disclosure. We conclude, therefore, that section 4F(b) does not free state attorneys general from the traditional obligation to establish particularized need to obtain disclosure.
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
We are aware of these arguments, and recognize that an emphasis on secrecy may impair other values. For example, since grand jury proceedings are ex parte in nature, they lack the fundamental protections of due process and may generate misleading or ambiguous information that would likely be corrected in an adversary proceeding. See United States v. Scully, 225 F.2d 113, 116 (2d Cir.), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955) (in grand jury proceedings "there is no right to counsel, no right of confrontation, no right to cross-examine or to introduce evidence in rebuttal and ordinarily no requirement that the evidence introduced be only such as would be admissible upon a trial" (citation omitted)).