DocketNumber: Nos. 80-1721, 80-2324 and 80-2401
Citation Numbers: 226 U.S. App. D.C. 67, 699 F.2d 1219
Judges: Bazelon, Mikva, Tamm
Filed Date: 2/1/1983
Status: Precedential
Modified Date: 1/12/2023
Opinion for the Court filed by Senior Circuit Judge BAZELON.
TABLE OF CONTENTS
Page
Introduction______________________________ 71
I. Background ________________________ 72
A. The Closed CP Meetings___________ 72
B. The Rulemaking Proceeding________ 74
C. The District Court Action __________ 76
II. The Ultra Vires Count________________ 77
A. Subject Matter Jurisdiction_________ 77
B. Standing------------------------ 79
C. Ripeness------------------------ 80
III. The FOIA Count__________________81
A. Material Pertaining to Commission Docket Proceedings_______________ 82
B. Material Preparatory to the CP Discussions ________________________ 84
C. Material Reporting the CP Discussions ___________________________ 86
IV. The Sunshine Act Count _____________ 87
A. The Authorization Requirement_____ 88
B. "Conduct or Disposition of Official Agency Business"________________ 89
1. “Official Agency Business”______ 89
2. Meetings “of" the Agency ______ 90
3. “Informal Background Discussions" _______________________ 91
C. Policy Arguments_________________ 92
V. The Rulemaking Denial ______________ 93
A. The Sunshine Act_________________ 94
B. The Commission's Authority________ 94
C. Delegation of Authority to the Telecommunications Committee_________ 96
Conclusion______________________________ 97
These appeals present a variety of important questions arising under the Communications Act of 1934,
One of the excluded carriers, ITT World Communications, Inc. (“ITT”), has since engaged in a two-front campaign to have these meetings reopened. The present appeals concern both prongs of that campaign. In Numbers 80-2324 and 80-2401, ITT appeals a judgment of the district court dismissing its complaint that the Committee’s actions at the closed meetings are ultra vires. The Commission cross-appeals accompanying judgments rendered against it under FOIA and the Sunshine Act.
For the reasons set forth below, we
(1) reverse the district court’s dismissal of ITT’s ultra vires complaint and remand for further proceedings;
(2) affirm in part, reverse in part, and remand in part the district court’s order directing the Commission to disclose all materials identified in response to ITT’s FOIA request;
(3) affirm the district court’s determination that the CP meetings are governed by the provisions of the Sunshine Act; and
(4) reverse in part and remand in part the Commission’s rulemaking denial.
A. The Closed CP Meetings
International record service
The specific nature of these off-the-record discussions is sharply contested and cuts to the heart of these appeals. Conceding that “international negotiation is the province of the State Department,”
ITT argues that the Committee’s efforts at the closed meetings constitute negotiation, and there is considerable evidence that would appear to contradict the Commission’s characterization of the discussions as mere unofficial “information exchanges.” First, the Commission concedes that Committee members attend CP meetings in their official capacities,
B. The Rulemaking Proceeding
ITT filed a petition for rulemaking on October 29, 1979. After questioning the Commission’s authority to meet privately with foreign administrations on behalf of individual American carriers, ITT proposed that if such contacts continue they should be governed by published rules of policy and procedure. Such rules, it argued, are necessary to guard against Commission prejudgment of pending and future proceedings, to protect against ex parte influences, to ensure an effective record for judicial scrutiny of any disputes growing out of the meetings, and generally to enhance the quality of the CP exchanges.
ITT characterized its proposed rules as addressed to “the what” and “the how” of CP meetings.
After receiving comments and reply comments,
(1) whether the Commission has engaged in “negotiations”; (2) whether the Commission has statutory power to make any contacts with foreign governments or telecommunications entities;. (3) whether the Government in the Sunshine Act is applicable; and (4) whether there are ex parte and other due process questions involved here.32
The Commission devoted a substantial part of its discussion to the first issue. Characterizing the closed discussions as “[ijnformal talks ... to improve foreign understanding,”
Turning to its authority to engage in informal talks, so construed, the Commission concluded that “contacts with foreign administrations are not only permissible but are encouraged by the Communications Act.”
The Commission then considered whether the CP discussions are “meetings” within the meaning of the Sunshine Act. The Act defines a “meeting” as “the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business.”
The Commission concluded that “[m]ost of ITT’s remaining arguments are in reality addressed to the advisability, rather than the legality, of informal discussions with foreign administrations.”
The Commission did, however, announce that as a discretionary matter it would (1) provide a notice-and-comment period on the time and place of each individual meeting, the persons expected to attend, and the topics to be discussed; (2) open the meetings to observers “unless it is determined that circumstances exist which warrant closure”;
This petition for review followed. ITT maintains that the Commission’s order denying its rulemaking petition -is arbitrary, capricious, an abuse of discretion, and contrary to law.
C. The District Court Action
ITT filed this action on February 12, 1980, while the Commission was considering its rulemaking petition.
Count I (“the ultra vires count”) alleges that the Commission has used the closed CP meetings to negotiate with foreign governments on behalf of ITT’s competitors, and it asserts that the alleged negotiations “are unlawful and ultra vires, and in excess of the authority conferred on the FCC by the Communications Act.”
Count II (“the FOIA count”) seeks disclosure under FOIA of a number of documents pertaining to the regulation of international record service.
Count III (“The Sunshine Act count”) alleges that the Telecommunications Committee’s participation in the closed CP discussions violates the Sunshine Act’s open meeting rules.
The Commission moved for dismissal or summary judgment, and ITT cross-moved for summary judgment on the FOIA and Sunshine Act counts. The district court (1) dismissed the ultra vires count, holding that ITT did not have standing to secure judicial review and that the issue was not ripe for adjudication; (2) granted ITT’s motion for summary judgment on the FOIA count, holding that the Commission had failed to substantiate its claim of “deliberative process” privilege with respect to the disputed documents; and (3) granted ITT’s motion for summary judgment on the Sunshine Act count, holding that the CP discussions are “meetings” within the meaning of the Act.
ITT appeals the district court’s dismissal of the ultra vires count. The Commission cross-appeals the court’s summary judgment on the FOIA and Sunshine Act counts. Because our review of the district
II. The Ultra Vires Count
The district court “seriously doubt[ed]” whether it had subject matter jurisdiction over the ultra vires count.
A. Subject Matter Jurisdiction
ITT argues that the district court has jurisdiction to hear the ultra vires claim under 28 U.S.C. § 1331 (1976 & Supp. V 1981), the general grant of federal question jurisdiction. The Commission counters that jurisdiction over the issue lies exclusively with this court as part of our review of the order denying ITT’s petition for rulemaking. Invoking 28 U.S.C. § 2342(1) (1976) and 47 U.S.C. § 402(a) (1976), which together grant exclusive jurisdiction to review FCC final orders to the courts of appeals, the Commission argues that the ultra vires count is a collateral attack against that part of its order defining the scope of its authority to meet with foreign administrations. District court intervention, the Commission contends, would therefore circumvent the prescribed review procedure and require an “unwarranted duplication of the work of the Court of Appeals.”
A strong presumption against concurrent district court jurisdiction would be appropriate if the issues presented by ITT’s rule-making petition and its ultra vires count were indeed identical.
We have emphasized that the jurisdiction of the district courts is properly invoked where de novo judicial factfinding is necessary for a fair examination of the disputed issues.
The Commission seems to argue, however, that even if its instant order does not provide a suitable vehicle for review, future agency actions based on its alleged ultra vires conduct would, so that district court intervention would nevertheless be unwarranted. Thus, the Commission asserts that if it “take[s] some action detrimental to ITT in the future, as a quid pro quo for European cooperation today,” ITT “would have the opportunity ... to challenge that action and its basis” in a statutory review proceeding.
Again, however, the Commission misstates the focus of ITT’s allegations. Where an agency action is not reviewable in the courts of appeals, district court jurisdiction may nevertheless be inappropriate if the action is interlocutory in nature and can be corrected on court-of-appeals scrutiny of a subsequent, final action.
Under the Administrative Procedure Act, a party has. standing to secure judicial review of any “agency action” that causes a “legal wrong.”
We respectfully conclude that the district court misread ITT’s complaint. The gravamen of ITT’s allegation is quite specific: “The activities of the FCC ... are unlawful and ultra vires, and in excess of the authority conferred on the Commission by the Communications Act."
As a regulated carrier, ITT has standing to complain of ultra vires Commission actions that threaten it with competitive injury.
C. Ripeness
The district court held that the ultra vires count was not ripe for adjudication, reasoning that “[t]he two new carriers have not yet been accepted by the foreign entities. When and if they are so accepted, Plaintiff can object through the formal rulemaking process, and derive relief if its claim is cognizable and meritorious.”
This holding is flawed under familiar ripeness doctrine, which requires an evaluation of (1) “[t]he fitness of the issues for judicial decision,” and (2) “the hardship to the parties of withholding court consideration.”
Moreover, contrary to the district court’s reasoning, a subsequent judicial proceeding would not likely provide an adequate remedy for the Commission’s alleged misconduct.
III. The FOIA Count
Three days after the first closed meeting in Dublin, ITT requested the Commission to identify and release all agency communications “with respect to dealings or possible dealings between foreign correspondents and U.S. carriers not now providing international services through direct connections with foreign correspondents.”
The Commission relies exclusively on the executive “deliberative process” privilege embodied in 5 U.S.C. § 552(b)(5) (1976) (“Exemption 5”), which protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency.”
The fourteen items still being withheld
(A) Seven items do not pertain directly to the CP meetings, but instead to specific docket proceedings concerning carrier authorizations and facilities planning.
(C) One item is a compilation of staff members’ notes reporting the substance of the CP discussions in Dublin.
The district court granted ITT’s motion for summary judgment and ordered the Commission to release all fourteen items. The court’s analysis was limited to one short paragraph:
In the instant case, the FCC cites no specific policy or process in order to protect the documents in question. In fact, they [sic] consistently defend the Consultative Process as a means of receiving information without having to formulate policy or utilize United States regulatory jurisdiction.... Upholding the use of Exemption 5 in the instant case “would go a long way toward undercutting the entire Freedom of Information Act,” . .. and detract from the Act’s dominant objective of disclosure.... The documents at issue herein must be disclosed.84
We have recurrently emphasized that “District Court decisions in FOIA cases must provide statements of law that are both accurate and sufficiently detailed to establish that the careful de novo review prescribed by Congress has in fact taken place.”
A. Material Pertaining to Commission Docket Proceedings
With one exception, each of these seven items was prepared by staff attorneys or engineering assistants to advise Commission officials on pending docket proceedings.
With respect to these items, the district court’s sweeping assertion that “the FCC cites no specific policy or process in order to protect the documents”
First, the deliberative process privilege does not protect “purely factual material appearing in ... documents in a form that is severable without compromising the private remainder of the documents.”
Second, the privilege does not protect material that merely sets forth official agency views and practices with respect to the interpretation and implementation of existing policies.
These determinations may well require the district court to “examine the contents of [the items] in camera to determine whether such records or any part thereof shall be withheld” under Exemption 5.
B. Material Preparatory to the CP Discussions
There are six items in this category. Items 2 and 3 are drafts of telexes sent by Commission Chairman Charles Ferris to his Swedish and Canadian counterparts.
Moreover, the policies behind the deliberative privilege apply in full force to this advisory material. Disclosure might well discourage subordinates from “provid[ing] ... their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism.”
We therefore reverse the district court’s disclosure order with respect to most of these items. We have examined the final telex that resulted from the drafts in item 2;
We emphasize an important caveat. A consistent assumption running through judicial decisions permitting nondisclosure of deliberative material has been that the actual policy or legal positions adopted will be disclosed to the public.
Our decision does not apply to item 7.
C. Material Reporting the CP Discussions
Item 1 is a compilation of staff members’ notes reporting the substance of the closed CP exchange at Dublin.
Communications between agency members and persons from outside the agency generally are not protected by the deliberative process privilege.
The Commission advances three rationales against disclosure. First, it argues that “[s]uch notes are evaluative, because the persons making them were not secretaries or other neutral observers, but were FCC staff attorneys, who can be expected to write down only those comments made by speakers at the meeting that they feel are significant.”
Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material. If this were not so, every factual report would be protected as a part of the deliberative process.129
Like Playboy Enterprises, this case is distinguishable from suits seeking disclosure of staff summaries of record evidence in adjudicatory and rulemaking proceedings.
The Commission argues, however, that the notes “may be used by the staff in making recommendations to the Commissioners concerning future consultative meetings.”
Finally, the Commission asserts that these notes are protected by the “related governmental privilege” that protects “information provided to the government by persons who would not provide information unless given a promise of confidentiality.”
IV. The Sunshine Act Count
The Government in the Sunshine Act is grounded on the principle that “the public
The sole question presented in this count is whether the consultative process exchanges are “meetings” within the meaning of the Act. On cross-motions for summary judgment, the district court held that they are. We conclude that there are no genuine issues of material fact, and we affirm. The public may therefore be excluded from these discussions only in accordance with the Act’s stringent closure provisions.
The Sunshine Act defines a “meeting” as “the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business.”
A. The Authorization Requirement
To be a meeting covered by the Sunshine Act, a gathering must include “at least the number of individual agency members required to take action on behalf of the agency.”
We disagree. The applicability of the Sunshine Act manifestly cannot turn on whether an agency has in fact followed proper procedures for delegating authority to a subdivision, for the requirements of the Act could otherwise be evaded at will. The
B. “Conduct or Disposition of Official Agency Business”
A more difficult question is whether the. Committee’s efforts are “deliberations [that] determine or result in the joint conduct or disposition of official agency business.”
The Commission advances three arguments, based on the statutory language and the legislative history, in support of the narrow interpretation.
1. “Official Agency Business”
The Commission argues that the Committee does not transact “official agency business” at the meetings; members participate solely to “exchange information and views,” and not to vote, “negotiate,” or otherwise engage in a “ ‘rump’ FCC meeting.”
The Commission has advanced no reason to distinguish the discussions at issue from “hearings” or “meetings with the public.” There can be no question, moreover, that the closed discussions involve agency business of the first import. These encounters play an integral role in the Commission’s policymaking processes in at least two
2. Meetings “of” the Agency
The Commission argues, however, that the CP discussions are not meetings of the Committee, but simply meetings attended by the Committee. Put another way, the discussions do not involve the “joint” conduct of business among Committee members, but rather exchanges between the Committee and outside parties.
Again, this argument fails to overcome the presumption that agency hearings and meetings with outsiders be open to public observation. An agency cannot avoid this requirement through the facile expedient of having an outside party “hold” the discussion, for the Sunshine Act’s policy that hearings and meetings with the public be open could otherwise be ignored with impunity.
Moreover, the intended meaning of the phrase “joint conduct” offers the Commission little comfort. The House Report emphasizes that the phrase “does not exclude the situation where a subdivision authorized to act on behalf of the agency meets with other individuals concerning the conduct or disposition of agency business.”
3. “Informal Background Discussions”
The Commission relies heavily on a statement in the Senate Report that “[i]t is not the intent of the bill to prevent any two agency members, regardles [sic] of agency size, from engaging in informal background discussions which clarify issues and expose varying views.”
The definition of a “meeting” was recurrently revised during the course of the legislative process.
Although many legislators felt that the phrase “conduct ... of official agency business” by definition excludes such encounters,
The thrust of the language in the Senate Report therefore concerns “informal background discussions” among agency members rather than between members and outsiders.
In the instant case, the Commission has failed to overcome the presumption in favor of openness. The CP discussions are not “chance meetings,” “social gatherings,” or “informal discussions” among members,
C. Policy Arguments
The Commission invokes a number of “adverse practical consequences” that would allegedly result from extending the Sunshine Act to the consultative process.
The absence of a clear statement by Congress, however, cuts in the other direction.
Moreover, the Act permits agencies to close meetings that likely would involve the discussion of information exempted from disclosure under 5 U.S.C. § 552b(c) (1976); the district court specifically invited the Commission to take advantage of this provision. For example, section 552b(c)(9) permits an agency to close meetings involving “information the premature disclosure of which would ... be likely to frustrate implementation of a proposed agency action.” Similarly, section 552b(c)(l) permits closure where discussions would involve national defense or foreign policy information
V. The Rulemaking Denial
We turn finally to the Commission’s order denying ITT’s petition for rulemaking. Our scope of review is defined by 5 U.S.C. § 706(2) (1976), which requires that we “hold unlawful and set aside agency action, findings, and conclusions found to be,” inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
We have noted that the arbitrary and capricious standard is not “a fixed template to be imposed mechanically on every ease,”
ITT’s rulemaking petition involves both issues of discretion and questions of compliance with statutory and procedural commands. The Commission has considerable discretion, beyond the statutory minima, in fashioning rules for public participation in its processes.
Applying these standards, we reverse the Commission’s rulemaking denial in part, and remand the remaining issues for further consideration in accordance with our discussion below.
A. The Sunshine Act .
For the reasons set forth in Part IV, the CP discussions are “meetings” within the meaning of the Sunshine Act, and are therefore governed by the Act’s stringent closure provisions. In its rulemaking denial, however, the Commission concluded that these exchanges fall outside of the Sunshine Act’s ambit.
B. The Commission’s Authority
The Commission’s assessment of the scope of its authority deserves defer
The Commission argues, however, that no record is required because (1) no one is prejudiced by the informal, off-the-record meetings, and (2) no reviewable “agency action” occurs at the meetings. This argument must be rejected. ITT has pointed to a number of factors that raise serious questions about the Commission’s claim that no “agency action” occurs in connection with the consultative process.
In addition to the paucity of the record, several additional “danger signals” suggest that the Commission may not have engaged in “reasoned decision-making” in its rule-making denial.
On the basis of the Commission’s statement and the record before us, we therefore cannot sustain the Commission’s characterization of its actions, its conclusion that these actions are authorized, or its rejection of all APA safeguards. We must therefore remand the order to the Commission.
Our normal course would simply be to instruct the Commission to consider the issues further and develop an adequate record for judicial review.
Nevertheless, we are concerned that the practical effect of our decision is fraught with the potential for duplication, conflicting resolutions, and further delay. The Commission may avoid these difficulties through the simple expedient of staying further action on ITT’s rulemaking petition pending the district court’s resolution of the ultra vires issue. If the district court determines that the Commission may not engage in the consultative process, the question of rulemaking will become moot. If the Commission’s actions are upheld in part or in whole, the Commission can then consider afresh the extent to which rulemaking may be appropriate, informed by the district court’s resolution and guided by the considerations we have set forth today.
C. Delegation of Authority to the Telecommunications Committee
The Commission may delegate its authority to subdivisions or individual members, but such delegation must be accomplished “by published rule or by order.”
If the Commission argued that the CP exchanges were important to the Committee’s discharge of its delegated responsibilities, we might well conclude that no explicit authorization to participate was necessary. Interaction with the public is the “bread-and-butter” of government administration;
This argument easily fails. The Commission concedes elsewhere that the commissioners attend the meetings in their official capacities and qua the Telecommunications Committee, and the record amply shows that the Committee acts on the Commission’s behalf in seeking to effectuate official agency business.
Conclusion
To summarize our decision:
First, with respect to the ultra vires count, we conclude that (a) the district court has subject matter jurisdiction, (b) ITT has standing, and (c) the controversy is ripe for adjudication. We therefore reverse the judgment of the district court dismissing that count and remand for further proceedings.
Second, we affirm the district court’s judgment ordering disclosure under FOIA of items 1 and 7. We reverse with respect to item 2. As to the other documents contested in this litigation, we reverse and remand to the district court for further consideration and findings.
Third, we affirm the district court’s judgment that the CP discussions are “meetings” within the meaning of the Sunshine Act. The public may therefore be excluded from these discussions only in accordance with the Act’s stringent closure provisions.
So ordered.
. As amended, 47 U.S.C. § 151 et seq. (1976 & Supp. IV 1980).
. 5 U.S.C. § 552 (1976 & Supp. V 1981).
. Id. § 552b.
. Id. § 551 et seq.
. See infra notes 16-26 and accompanying text.
. See ITT World Communications, Inc. v. FCC, Civ. No. 80-0428 (D.D.C. Oct. 17, 1980) [hereinafter cited without cross-reference as “District Court Opinion”], reprinted in Joint Appendix (“JA”) at 148-55.
.See Petition of ITT World Communications, Inc., 77 F.C.C.2d 877 (1980) [hereinafter cited as “Rulemaking Denial”].
On January 2, 1981, this court denied ITT’s motion to consolidate these appeals, but directed that they be presented on the same day before the same panel.
. Record service is the telecommunication of information in written or graphic form, and includes telegram, telex, and teletypewriter exchange services. The Commission is taking steps to eliminate the regulatory distinction between record and voice communications. See Western Union Int’l, Inc. v. FCC, 673 F.2d 539, 541 & n. 4 (D.C.Cir. 1982).
. For background, see Preliminary Audit and Study of Operations of Int’l Carriers, 75 F.C. C.2d 726 (1980); H.R.Rep. No. 356, 97th Cong., 1st Sess. 5, 25-32, U.S.Code Cong. & Admin. News 1981, p. 2730 (1981).
. The other major IRCs are Western Union International, Inc., RCA Global Communications, Inc., and TRT Communications Corporation. Together these four carriers have a 98.5% share of American traffic in the international record communications market. H.R. Rep. No. 356, 97th Cong., 1st Sess. 31 (1981) (chart 14) (1980 figures). RCA has intervened in No. 80-1721 in support of ITT’s rulemaking petition.
. The Commission’s international competition policies parallel its efforts with respect to domestic record service. See generally Western Union Tel. Co. v. FCC, 665 F.2d 1126 (D.C.Cir. 1981); Western Union Tel. Co. v. FCC, 665 F.2d 1112 (D.C.Cir. 1981).
. Graphnet Syss., Inc., 63 F.C.C.2d 402 (1977), aff'd in part and remanded in part sub nom. ITT World Communications, Inc. v. FCC, 595 F.2d 897 (2d Cir.1979). Departing from its usual practice, the Commission granted these authorizations even though Telenet and Graphnet had not yet obtained the necessary interconnection agreements to commence international service. This prompted the Second Circuit to remand for the Commission to make the two carriers’ authorizations contingent on their obtaining operating agreements within a reasonable time. 595 F.2d at 902-03.
. United States carriers technically own and control the overseas circuits only to a fictional midpoint, where fictional “handoffs” to correspondent foreign carriers occur. The participating carriers divide revenues according to negotiated agreements. See RCA Communications, Inc. v. United States, 43 F.Supp. 851, 853 (S.D.N.Y.1942).
. See Brief for Respondents in No. 80-1721, at 7 [hereinafter cited without cross-reference as “FCC Brief”]. Telecommunications services in most countries are provided by government agencies known as “administrations”; these agencies are also referred to as “PTTs” (Postal, Telephone, and Telegraph authorities).
. See generally Rulemaking Denial, supra note 7, 77 F.C.C.2d at 885; H.R.Rep. No. 356, 97th Cong., 1st Sess. 10-13, 35-36, 39-40 (1981). See also 1 Martech Strategies, Inc., Competition and Deregulation in International Telecommunications 12 (July 10, 1981) (contracted report for National Telecommunications and Information Administration), quoted in H.R.Rep. No. 356, supra, at 36:
... The PTTs overwhelmingly prefer the status quoo [sic] to the changes proposed by the Commission. In essence, they perceive the proposed changes as challenging their monopoly position and control over telecommunications usage and pricing of services. European PTTs appear relatively satisfied with the existing international telecommunications industry structure .... The PTTs also claimed that the decisions would not substantially result in improved services to their customers.
The intense oposition [sic] on the part of foreign PTTs to the FCC’s restructuring proposals established a formidable barrier to entry, if not a block, in the near term.
In an effort to circumvent this unwillingness, Congress recently enacted the Record Carrier Competition Act of 1981, Pub.L. No. 97-130, 95 Stat. 1687 (to be codified at 47 U.S.C. § 222). That Act directs American record carriers with overseas interconnections to make their circuits available to carriers without interconnections “upon terms and conditions which are just, fair, and reasonable.” 47 U.S.C.A.
. For background on the CP, see AT&T Co. (TAT-7), 73 F.C.C.2d 248, 254-55 (1979); Policies for Overseas Common Carriers, 73 F.C. C.2d 193 (1979). The technical exchanges are intended to “lead to the formulation of ... traffic forecasts, data bases and analytical methodologies for assessing the service reliability and economical aspects of facilities alternatives.” Policies, supra, 73 F.C.C.2d at 195.
. FCC Brief at 9.
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 884 n. 4.
. Id. at 883, 885; see also FCC Brief at 20, 24, 30; Brief for FCC in Nos. 80-2324 & 80-2401, at 3, 20, 23 & n. 11 (filed on behalf of the FCC by the Department of Justice) [hereinafter cited without cross-reference as “DOJ Brief”]; Affidavit of Comm’r Robert E. Lee (Oct. 23, 1980) [hereinafter cited without cross-reference as “Lee Affidavit”], reprinted in JA at 587-89.
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 885.
. Memorandum of Points and Authorities in Opposition to Plaintiffs Motion for Summary Judgment, at 24 (emphasis added) [hereinafter cited without cross-reference as “FCC District Court Memorandum”], reprinted in JA at 514. See also FCC Brief at 31-32 n. 26; DOJ Brief at 21-24; Lee Affidavit ¶ 2, reprinted in JA at 587.
. See DOJ Brief at 24.
. See Rulemaking Denial, supra note 7, 77 F.C.C.2d at 883, 884-85. See also infra notes 37-39 and accompanying text.
. Telex from Robert R. Bruce, General Counsel, FCC, to Robert Seguin, Vice-President, Teleglobe Canada, at 3-4, 9-10 (Mar. 19, 1979), reprinted in JA at 218-19, 224-25. See also infra note 26 and accompanying text.
. FCC Brief at 24; see also id. at 4; Affidavit of Willard L. Demory, ¶ 8 (Feb. 13, 1981) (“The Europeans appreciate the opportunity to communicate with us directly and prefer this to [discussions] through diplomatic channels.”) [hereinafter cited without cross-reference as “Demory Affidavit”], reprinted in DOJ Brief at 4a.
. For example, Commission Chairman Charles Ferris asserted in 1979 that the Committee seeks to apply “leverage” at the meetings to “bring a greater sense of urgency to our correspondents overseas so that they will give due consideration to the competitive environment ... [we] have in the United States.” Hearings before the Subcomm. on Communications of the Senate Comm, on Commerce, Science, and Transp., 96th Cong., 1st Sess. 1578, 1586 (1979) (remarks of Chairman Charles D. Ferris). Referring to Commission authorizations of transatlantic communications cables (TATs), another commissioner has stated that the FCC expects a “ ‘tit’ for the ‘tat’ ” and a “quid pro quo.” Transcript of Montreal CP Meeting, at 108-09 (Mar. 22, 1979) (remarks of Comm’r Joseph R. Fogarty), reprinted in JA at 229-30. Similarly, another commissioner has said that the Committee is “talking to people in a negotiating stance abroad.” Transcript of FCC Open Meeting, at 2 (Apr. 22, 1980) (remarks of Comm’r Abbott Washburn), reprinted in JA at 415. See also id. at 5 (remarks of Comm’r Robert E. Lee), reprinted in JA at 418; Tran-1 script of FCC Open Meeting, at 9-10 (Feb. 8, 1980) (remarks of Comm’r Fogarty), reprinted in JA at 409-10.
. Petition for Rulemaking Concerning Contacts Between the F.C.C. and Foreign Telecommunications Administrations, RM 3523, at 2 (filed Oct. 24, 1979) [hereinafter cited without cross-reference as “Rulemaking Petition”], reprinted in JA at 16-40.
. Id. at 22-23, reprinted in JA at 37-38.
. Id. at 23, reprinted in JA at 38.
. Specifically, the petition asked the Commission to (a) provide at least 30 days’ notice in advance of any meeting with representatives of foreign administrations or telecommunications
. Comments were filed by RCA Global Communications, Satellite Business Systems, Southern Pacific Communications Company, Telenet, and Graphnet; reply comments were filed by ITT, RCA, and Western Union International. See JA at 44-131.
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 882 (emphasis in original).
. Id. at 885.
. Id. at 883.
. Id.
. Id. at 884.
. Id. at 882; see also id. at 884.
. Id. at 884-85 & n. 6. The Commission cited sections 1, 214, 301, 303(n), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 214, 301, 303(n), 303(r) (1976). It also invoked section 201(c) of the Communications Satellite Act of 1962, 47 U.S.C. § 721(c) (1976).
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 885.
.5 U.S.C. § 552b(a)(2) (1976).
. See infra note 145 and accompanying text.
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 887.
. Id
. Id. at 888.
. Id.
. Complaint, ITT World Communications, Inc. v. FCC, Civ. No. 80-0428 (D.D.C.) (filed Feb. 12, 1980) [hereinafter cited without cross-reference as “Complaint”], reprinted in JA at 196-208.
. Id. ¶ 22, reprinted in JA at 204.
. District Court Opinion at 4, reprinted in JA at 151.
. FCC District Court Memorandum at 3, reprinted in JA at 493; see also DOJ Brief at 14-15.
. See, e.g., Whitney Nat’l Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965); City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir. 1979); Independent Cosmetic Mfrs. & Distributors, Inc. v. United States Dep’t of HEW, 574 F.2d 553, 555 & n. 2 (D.C.Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Nader v. Volpe, 466 F.2d 261, 266-68 (D.C.Cir. 1972). See also 5 U.S.C. § 703 (1976).
. DOJ Brief at 15.
. See, e.g., Amusement & Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531, 533-34 (D.C.Cir. 1980) (“[A]gency action is aptly examined in the District Court when the court proceeding is to be de novo and based on a new record compiled in the court itself. Where review is to be on the agency record, the Court of Appeals is well suited to consider the challenge in the first instance.”) (emphasis in original) (footnote omitted), cert. denied, 450 U.S. 912, 101 S.Ct. 1352, 67 L.Ed.2d 336 (1981); Investment Co. Inst. v. Board of Governors of Fed. Reserve Sys., 551 F.2d 1270, 1278 (D.C. Cir.1977) (order reviewable in court of appeals “is interpreted to mean any agency action capable of review on the basis of the administrative record”); Deutsche Lufthansa Aktiengesellschatt v. CAB, 479 F.2d 912, 916 (D.C.Cir. 1973) (“It is the availability of a record for review ... which is now the jurisdictional touchstone.”); Independent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 143 (D.C.
. For more on the Commission’s rulemaking record, see infra notes 194-202 and accompanying text.
. As discussed infra Part V-B, we cannot affirm the Commission’s order denying ITT’s rulemaking petition on the basis of the record before us. There is some tension between our remand of that order for further consideration and our remand of the ultra vires count for district court factfinding; the practical effect of our decision is that both the district court and the Commission will consider the nature of the Committee’s off-the-record activities. We discuss coordination of this “double remand” infra p. 1248.
. FCC Brief at 24 (emphasis added).
. See, e.g., Association of Nat’l Advertisers, Inc. v. FTC, 617 F.2d 611, 619-22 (D.C.Cir. 1979); id. at 626 (Wright, C.J., concurring in the result); see also 5 U.S.C. § 704 (1976). This preference for statutory remedies reflects important policies, including deference to administrative expertise, respect for administrative autonomy, and avoidance of piecemeal review. See, e.g., City of Rochester v. Bond, supra note 50, 603 F.2d at 936; Nader v. Volpe, supra note 50, 466 F.2d at 267-68. It also embodies aspects of ripeness, exhaustion, and finality doctrines. See, e.g., Association of Nat’l Advertisers, Inc. v. FTC, supra, 617 F.2d at 620-21; Nader v. Volpe, supra note 50, 466 F.2d at 268; cf. Gulf Oil Corp. v. United States Dep’t of Energy, 663 F.2d 296, 307-13 (D.C.Cir. 1981).
. Association of Nat’l Advertisers, Inc. v. FTC, supra note 56, 617 F.2d at 621 (footnote omitted).
. Nader v. Volpe, supra note 50, 466 F.2d at 266, 269.
. The Commission argues that district court jurisdiction is appropriate only where there is a demonstrated, “patent” violation of agency authority, and that “[w]hatever this Court’s ultimate view of the scope of the FCC’s authority ... it surely is not acting in violation of any clear statutory prohibition or committing any patent violation of its authority.” DOJ Brief at 16 (emphasis added). The “patent violation” doctrine is well established, see, e.g., Leedom v. Kyne, 358 U.S. 184, 188-91, 79 S.Ct. 180, 183-85, 3 L.Ed.2d 210 (1958); Independent Cosmet
. 5 U.S.C. § 702 (1976).
. The Logan Act, 18 U.S.C. § 953 (1976), prohibits unauthorized “correspondence or intercourse” by United States citizens
with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.
. Complaint ¶ 22, reprinted in JA at 204 (emphasis added).
. Id. ¶¶ 10, 21, reprinted in JA at 199, 203-04.
. On the rules governing standing, see generally Bryant v. Yellen, 447 U.S. 352, 366-68, 100 S.Ct. 2232, 2240-41, 65 L.Ed.2d 184 (1980); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37-46, 96 S.Ct. 1917, 1923-28, 48 L.Ed.2d 450 (1976); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151-55, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); Control Data Corp. v. Baldridge, 655 F.2d 283, 288-89 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981).
. As we assume in reviewing the district court’s dismissal. See, e.g., Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).
. See, e.g., Writers Guild of America, West, Inc. v. American Broadcasting Co., Inc., 609 F.2d 355, 365 (9th Cir.1979) (“Regulation through ‘raised eyebrow’ techniques or through forceful jawboning is commonplace in the administrative context, and in some instances may fairly be characterized ... as official action by the agency.”) (footnotes omitted), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980); Hercules, Inc. v. FPC, 552 F.2d 74, 77-78 (3d Cir.1977) (“jawboning strategy”); Independent Broker-Dealers’ Trade Ass’n v. SEC, supra note 52, 442 F.2d at 137-43 (informal pressure tactics); Moss v. CAB, 430 F.2d 891, 897-900 (D.C.Cir. 1970) (same). Compare Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 402 (D.C.Cir. 1974) (individual commissioner’s speech representing unofficial views not “agency action”). Cf. Consolidated Edison Co. of New York, Inc. v. FPC, 512 F.2d 1332, 1341-43 (D.C.Cir.), clarified, 518 F.2d 448 (D.C.Cir.1975).
. It might be argued, although the Commission has not done so, that the presence of foreign administrations in the causal chain makes ITT’s threatened injuries too specula
. See, e.g., Association of Data Processing Serv. Orgs., Inc. v. Camp, supra note 64, 397 U.S. at 153, 90 S.Ct. at 829; Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 422-23, 62 S.Ct. 1194, 1202-03, 86 L.Ed. 1563 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476-77, 60 S.Ct. 693, 698, 84 L.Ed. 869 (1940).
Our standing test also requires that there be no “clear and convincing” indication of congressional intent to withhold judicial review. Control Data Corp. v. Baldridge, supra note 64, 655 F.2d at 288-89. There is no such indication in this case.
. We express no views on the scope of the Commission’s authority to meet with foreign administrations. Nor do we consider whether the Commission’s efforts on behalf of Graphnet and Telenet constitute arbitrary action with respect to other regulated carriers. Cf. Teamsters Local Union 769 v. NLRB, 532 F.2d 1385, 1392 (D.C.Cir.1976). Finally, we do not consider whether alleged attempts to “leverage” foreign administrations through facilities authorization decisions, see supra note 26 and accompanying text, would violate the “public convenience or necessity” standard of 47 U.S.C. § 214(a) (1976).
. District Court Opinion at 4-5 (citation omitted), reprinted in JA at 151-52.
. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). On ripeness doctrine, see generally FTC v. Standard Oil Co., 449 U.S. 232, 239-43, 101 S.Ct. 488, 493-95, 66 L.Ed.2d 416 (1980); Gulf Oil Corp. v. United States Dep’t of Energy, supra note 56, 663 F.2d at 309-13.
. This inadequacy is also a touchstone of our subject matter jurisdiction analysis. See supra notes 55-58 and accompanying text.
. The district court did not address the Commission’s assertion that ITT failed to exhaust its administrative remedies, nor has the Commission pressed this argument on appeal.
. Letter from Grant S. Lewis to Executive Director, FCC, at 1 (Oct. 12, 1979), reprinted in JA at 159.
. Letter from Philip L. Verveer, Chief, Common Carrier Bureau, to Grant S. Lewis (Nov. 16, 1979), reprinted in JA at 161-69. Most of the items released were copies of letters and telexes between Commission officials and representatives of foreign administrations. Also released were five pages of a transcript of a CP meeting held in Montreal, Canada, in March 1979, and correspondence between ITT and the Commission. See id., Attachment I, reprinted in JA at 167.
. ITT filed an Application for Review on December 17, 1979. See JA at 170-83. Because the Commission failed to respond to this appeal within 20 working days, see 5 U.S.C. § 552(a)(6)(A)(ii) (1976), ITT was deemed to have exhausted its administrative remedies, see id. § 552(a)(6)(C). Shortly after ITT filed its complaint, the Commission acted on the appeal, refusing to disclose anything further except for factual portions of three documents. ITT World Communications, Inc. On Request for Inspection of Records, 76 F.C.C.2d 453 (1980) [hereinafter cited as “Records Denial”].
. The Commission argued in the district court that the attorney-client privilege, as embodied in Exemption 5, also precluded disclosure. The district court rejected that assertion, stating that the “privilege only attaches when an attorney is performing a service that only an attorney can perform, and the communications between attorney and client are made in confidence. Neither showing has been made here.” District Court Opinion at 5 n. 2, reprinted in JA at 152. The Commission has not advanced its claim of attorney-client privilege on appeal.
. 5 U.S.C. § 552(a)(4)(B) (1976).
. See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 459-61; Affidavit of H. Russell Frisby, Jr. (Apr. 15, 1980) [hereinafter cited without cross-reference as “Frisby Affidavit”], reprinted in JA at 340-41; Affidavit of Robert E. Gosse (June 2, 1980) [hereinafter cited without cross-reference as “Gosse Affidavit”], reprinted in JA at 343-46; Affidavit of James E. Graf II (June 2, 1980) [hereinafter cited without cross-reference as “Graf Affidavit”], reprinted in JA at 348-54; Affidavit of Sebastian A. Lasher (June 2, 1980) [hereinafter cited without cross-reference as “Lasher Affidavit”], reprinted in JA at 356-58; Affidavit of Elliot Maxwell (June 3, 1980) [hereinafter cited without cross-reference as “Maxwell Affidavit”], reprinted in JA at 365-67; FCC District Court Memorandum at 10-21, reprinted in JA at 500-11.
. After reconsideration, the Commission released item 6. Records Denial, supra note 76, 76 F.C.C.2d at 457 n. 10.
. Items 4, 9, 11, 12, 13, 14, and 15. See infra notes 88-94 and accompanying text.
. Items 2, 3, 5, 7, 8, and 10. See infra notes 107-08 and accompanying text.
. Item 1. See infra note 122 and accompanying text.
. District Court Opinion at 6, reprinted in JA at 153 (emphasis added) (citations omitted).
. Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 950 (D.C.Cir.1979) (footnote omitted); see also Marks v. CIA, 590 F.2d 997, 1010-11 (D.C.Cir. 1978) (Wright, C.J., concurring); Schwartz v. IRS, 511 F.2d 1303, 1306-07 (D.C.Cir.1975).
. We reverse outright, however, with respect to item 2. See infra note 116 and accompanying text.
. The exception is item 15, a memorandum from Commissioner Fogarty to Chairman Ferris. See infra note 94 and accompanying text. The analysis presented in the text, however, applies with full force to this document. See infra notes 96-101 and accompanying text.
. Memorandum from Joel S. Winnik, staff attorney, to Walter R. Hinchman, Chief, Common Carrier Bureau (Aug. 25, 1976). See Records Denial, supra note 76, Attachment II, 76 F.C. C.2d at 460; Gosse Affidavit ¶ F, reprinted in JA at 345-46.
. Memorandum from Sebastian A. Lasher, engineering assistant, to Comm’r Abbott Wash-burn (Apr. 26, 1979). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 460; Lasher Affidavit ¶¶ 3-5, reprinted in JA at 356-58. The recent decision in question was ITT World Communications, Inc. v. FCC, 595 F.2d 897 (2d Cir.1979). See supra note 12.
. Memorandum from Lawrence Katz, attorney-advisor, to Comm’r Joseph Fogarty (undated). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 461; Graf Affidavit ¶ 7, reprinted in JA at 351.
. Memorandum from Lawrence Katz, attorney-advisor, to Comm’r Joseph Fogarty (undated). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 461; Graf Affidavit ¶ 8, reprinted in JA at 352.
. Memorandum from Lawrence Katz, attorney-advisor, to Comm’r Joseph Fogarty (undated). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 461; Graf Affidavit ¶ 9, reprinted in JA at 352-53.
. Memorandum from Lawrence Katz, attorney-advisor, to Comm’r Joseph Fogarty (undated). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 461; Graf Affidavit ¶ 10, reprinted in JA at 353.
. Memorandum from Comm’r Joseph Fogarty to Chairman Charles Ferris (Oct. 5, 1978). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 461; Graf Affidavit ¶ 11, reprinted in JA at 353.
. District Court Opinion at 6, reprinted in JA at 153.
. See generally Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 183-90, 95 S.Ct. 1491, 1499-03, 44 L.Ed.2d 57 (1975); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-54, 159-60, 95 S.Ct. 1504, 1516-18, 1520-21, 44 L.Ed.2d 49 (1975); Taxation With Representation Fund v. IRS, 646 F.2d 666, 676-81 (D.C.Cir.1981); Brinton v. Department of State, 636 F.2d 600, 604-06 (D.C.Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866-69 (D.C.Cir.1980); Jordan v. United States Dep’t of Justice, 591 F.2d 753, 772-74 (D.C.Cir.1978) (en banc); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C.Cir.1975); S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965).
. Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 866; see also Arthur Anderson & Co. v. IRS, 679 F.2d 254, 257-58 (D.C.Cir. 1982).
. Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 869.
. Sterling Drug Inc. v. FTC, 450 F.2d 698, 708 (D.C.Cir. 1971); see also Taxation With Representation Fund v. IRS, supra note 96, 646 F.2d at 678-79.
. Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 867, 869; see also Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., supra note 96, 421 U.S. at 185-86, 95 S.Ct. at 1500-01; Taxation With Representation Fund v. IRS, supra note 96, 646 F.2d at 679; Ryan v. Department of Justice, 617 F.2d 781, 790-91 (D.C.Cir.1980).
. See, e.g., NLRB v. Sears, Roebuck & Co., supra note 96, 421 U.S. at 161, 95 S.Ct. at 1521; Brinton v. Department of State, supra note 96, 636 F.2d at 605.
. See, e.g., Founding Church of Scientology of Washington, D.C., Inc. v. Bell, supra note 85, 603 F.2d at 952-53; Marks v. CIA, supra note 85, 590 F.2d at 1003; Mead Data Central, Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 262-63 (D.C.Cir.1977).
. EPA v. Mink, 410 U.S. 73, 91, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 (1973). See infra notes 124, 126-31, and accompanying text.
. See cases cited supra note 100.
. NLRB v. Sears, Roebuck & Co., supra note 96, 421 U.S. at 153, 95 S.Ct. at 1517 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 797 (1967)).
. 5 U.S.C. § 552(a)(4)(B) (1976).
. Item 2 consists of 6 drafts of a telex from Chairman Ferris to Torsten Larsson, Chairman of CEPT/CLTA, Central Administration of Swedish Telecommunications (Oct. 31, 1979). Item 3 is a draft of a telex from Chairman Ferris to Jean-Claude DeLorme, President, Teleglobe Canada (Oct. 31, 1979). See Records Denial, supra note 76, Attachment II, 76 F.C. C.2d at 459-60; Gosse Affidavit ¶ E, reprinted in JA at 345. Copies of the final telexes were released. See Records Denial, supra note 76, Attachment I, 76 F.C.C.2d at 459; see also JA at 233-35 (reprint of telex to Chairman Lars-son).
.See Gosse Affidavit ¶ G, Graf Affidavit ¶ 6, Maxwell Affidavit ¶ 10, reprinted in JA at 346, 351, 367.
Item 5 is a 1-page section of a 28-page memorandum from Robert Gosse and James Warwick, staff attorneys, to FCC attendees of the Dublin Conference (Sept. 1979). The memorandum is entitled “Expansion of Areas of Consultative Contact,” and the withheld section consists of recommendations, opinions, and options. See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 460; Gosse Affidavit ¶ G, reprinted in JA at 346.
Item 7 is a memorandum from Russell Frisby, attorney-advisor, to James Smith, for FCC attendees of the Dublin Conference (undated). See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 460; Frisby Affidavit, reprinted in JA at 340-41.
Item 8 is an undated memorandum prepared by Elliot Maxwell, assistant to Chairman Ferris, for Ferris’s use at the Dublin Conference. It consists of proposed remarks that were not delivered, proposals for expanding the consultative process, and proposed responses to possible foreign arguments. See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 460; Maxwell Affidavit ¶¶ 3-11, reprinted in JA at 365-67.
Item 10 is a memorandum from Angela Shaw, attorney-advisor, to Comm’r Joseph Fogarty (Dec. 16, 1976). Four of the 6 pages were released. The remainder consists of “recommendations regarding the issues to be discussed” at a CP meeting. Records Denial, su
. The closed Dublin meeting, for example, was largely devoted to the Commission’s proposal to expand the focus of the consultative process. See FCC Brief at 9; Maxwell Affidavit ¶¶ 5, 8-10, reprinted in JA at 366-67.
. See supra notes 19-20 and accompanying text.
. See infra notes 122-37 and accompanying text.
. See supra notes 96-101 and accompanying text.
. Mead Data Central, Inc. v. United States Dep’t of Air Force, supra note 102, 566 F.2d at 257.
. Id. (citation omitted); see also Jordan v. United States Dep’t of Justice, supra note 96, 591 F.2d at 772-74.
. See Telex from Charles Ferris, Chairman, FCC, to Torsten Larsson, Chairman, CEPT/CLTA, Central Administration of Swedish Telecommunications (Oct. 31, 1979), reprinted in JA at 233-35. See also supra note 107.
. See, e.g., Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., supra note 96, 421 U.S. at 184-85, 192, 95 S.Ct. at 1500, 1504; NLRB v. Sears, Roebuck & Co., supra note 96, 421 U.S. at 151-52, 159-60, 95 S.Ct. at 1516-17, 1520-21; Vaughn v. Rosen, supra note 96, 523 F.2d at 1147 n. 38.
.Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 866.
. For a description of this document, see supra note 108.
. Frisby Affidavit ¶ 3, reprinted in JA at 340-41.
. See infra notes 122-34 and accompanying text.
. See, e.g., Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 854, 863-64, 865-66, 870.
. The notes were taken and compiled by two staff attorneys, Robert Gosse and James Warwick. See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 459-60; Gosse Affidavit ¶ D, reprinted in JA at 345.
. See, e.g., County of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1039-41 (1st Cir.1981); Mead Data Central, Inc. v. United States Dep’t of Air Force, supra note 102, 566 F.2d at 257-58; Washington Research Project, Inc. v. Department of HEW, 504 F.2d 238, 244 45 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 951, 44 L.Ed.2d 450 (1975). For exceptions, see, e.g., Forsham v. Harris, 445 U.S. 169, 182-86, 100 S.Ct. 978, 985-87, 63 L.Ed.2d 293 (1980); Ryan v. Department of Justice, 617 F.2d 781, 789-91 (D.C.1980); and Soude v. David, 448 F.2d 1067, 1078 n. 44 (D.C.Cir.1971), all dealing with advisory material solicited from outside consultants as part of the deliberative process.
. See EPA v. Mink, supra note 103, 410 U.S. at 89-91, 93 S.Ct. at 836-37; Brinton v. Department of State, supra note 96, 636 F.2d at 604-06. For exceptions, see infra notes 130-31 and accompanying text.
. Material pertaining to foreign and defense affairs may be withheld if properly classified pursuant to executive order. See 5 U.S.C. § 552(b)(1) (1976). This exemption is not at issue in the instant litigation.
. DOJ Brief at 32.
. 677 F.2d 931 (D.C.Cir.1982).
. Id. at 935.
. Id.
. See, e.g., Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70 (2d Cir.1979) (summaries of evidence in rulemaking proceedings); Montrose Chem. Corp. v. Train, 491 F.2d 63 (D.C.Cir. 1974) (summaries of evidence in adjudicatory proceedings).
. Montrose Chem. Corp. v. Train, supra note 130, 491 F.2d at 68 (“Whether he weighed the correct factors, whether his judgmental scales were finely adjusted and delicately operated, disappointed litigants may not probe his deliberative process.”) (footnote omitted); see also Lead Indus. Ass’n, Inc. v. OSHA, supra note 130, 610 F.2d at 83-84.
. DOJ Brief at 33 (quoting Gosse Affidavit ¶ D, reprinted in JA at 345).
. Vaughn v. Rosen, supra note 96, 523 F.2d at 1145-46.
. The Commission’s reliance on Brinton v. Department of State, supra note 96, 636 F.2d 600, is misplaced. The court in that case exempted the disputed memoranda from disclosure even though they did not relate to a specific decision, but the material therein was analytical and recommendatory, not factual.
. DOJ Brief at 32.
. For its previous application, see, e.g., Merrill v. Federal Open Mkt. Comm., 565 F.2d 778, 786 (D.C.Cir. 1977), vacated on other grounds, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979); Brockway v. Department of Air Force, 518 F.2d 1184, 1193 (8th Cir.1975).
. The Commission simply asserts in a conclusory manner that “[t]he prospect of disclosure would, in our view, tend to discourage these candid exchanges .... ” Records Denial, supra note 76, 76 F.C.C.2d at 458. See also infra note 179 and accompanying text.
. Government in the Sunshine Act, § 2, Pub.L. No. 94—409, 90 Stat. 1241, 1241 (1976).
. 5 U.S.C. § 552b(b) (1976). An “agency” is any agency as defined in FOIA, id § 552(e), that is “headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.” Id. § 552b(a)(l).
. Id. § 552b(c)(l)-(10).
. Id. § 552b(a)(2). The ambiguity of this definition has frequently been noted. See, e.g., R. Berg & S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 3 — 4 (1978) (“Defining the scope of the term ‘meeting’ is one of the most troublesome problems in interpreting and applying the Sunshine Act. The definition was revised frequently during the course of the legislative process, sometimes for obscure reasons, and the legislative history is not completely consistent.”) (footnote omitted).
. 5 U.S.C. § 552b(h)(l) (1976).
. Id. § 552b(a)(2).
. H.R.Rep. No. 880 (Part 1), 94th Cong., 2d Sess. 7 (1976), U.S.Code Cong. & Admin.News 1976, pp. 2183, 2189 [hereinafter cited as “House Report I”]; S.Rep. No. 354, 94th Cong., 1st Sess. 17, 19 (1975) [hereinafter cited as “Senate Report”]. See also 5 U.S.C. § 552b(a)(l) (1976) (“agency” includes “any subdivision thereof authorized to act on behalf of the agency”).
. That section provides that “the Commission may, by published rule or by order, delegate any of its functions ... to a panel of commissioners, an individual commissioner, an employee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter .. .. ” We discuss the delegation question infra Part V-C.
. DOJ Brief at 24; see also supra notes 23, 37-39, and accompanying text.
. See supra notes 24-25 and accompanying text.
. DOJ Brief at 24; see also Rulemaking Denial, supra note 7, 77 F.C.C.2d at 883.
. See supra notes 37-39 and accompanying text.
. 5 U.S.C. § 552b(a)(2) (1976).
. DOJ Brief at 24; see also Rulemaking Denial, supra note 7, 77 F.C.C.2d at 883-84, 886.
. Compare 5 U.S.C. § 551(13) (1976). See House Report I, supra note 144, at 8; see also Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1264-65 (D.C.Cir.1980) (formulating and rendering advice to the President is official agency business).
. Senate Report, supra note 144, at 18 (emphasis added). See also H.R.Rep. No. 1441 & S. Rep. No. 1178, 94th Cong., 2d Sess. 11, U.S.Code Cong. & Admin.News 1976, p. 2183 (1976) (adopting “the Senate definition, as explained in the Senate report”) [hereinafter cited as “Conference Report”].
. House Report I, supra note 144, at 7, U.S. Code Cong. & Admin.News 1976, p. 2189; Senate Report, supra note 144, at 17.
. See Rulemaking Denial, supra note 7, 77 F.C.C.2d at 883 (“The Consultative Process .. . provides a valuable if not indispensable source of information ... because it facilitates our predictive judgment as to future foreign communications needs and the solutions to those needs that will be acceptable to other countries .... ”); see also supra notes 37-39 and accompanying text; sources cited supra note 16.
. District Court Opinion at 7, reprinted in JA at 154. Our conclusion is buttressed by the Commission’s contradictory argument in the FOIA count that documents generated from the meetings are predecisional materials. See supra notes 122, 126, 132, and accompanying text.
. See supra notes 24-25 and accompanying text.
. The Senate Report emphasizes that “the mere setting of the gathering is not determinative .... [Mjeetings outside the agency are equally subject to the bill if they discuss agency business and otherwise meet the requirements of this subsection. The test is what the discussion involves, not where or how it is conducted.” Senate Report, supra note 144, at 18-19.
. House Report I, supra note 144, at 8, U.S. Code Cong. & Admin.News 1976, p. 2190.
. Id.; see also Senate Report, supra note 144, at 18.
. House Report I, supra note 144, at 8; Senate Report, supra note 144, at 18. The Senate Report states that the phrase “also excludes instances where a single agency head, authorized to conduct a meeting on behalf of the agency, or to take action on behalf of the agency, meets with members of the public, or staff.” Senate Report, supra note 144, at 18.
. We note in passing that the Commission’s Sunshine Act regulations define a “meeting” as “the deliberations among a quorum of the Commission, a Board of Commissioners, or a quorum of a committee of Commissioners.” 47 C.F.R. § 0.601(b) (1981) (emphasis added). To the extent that the word “among” may be designed to exempt hearings or meetings with the public that result in the conduct of official agency business, its use violates Congress’s intent. See supra notes 151-61 and accompanying text.
. Senate Report, supra note 144, at 19. The reference is to informal discussions between two members of a three-member agency; the passage “necessarily has broader application,” exempting such discussions among a quorum of members, regardless of agency size. R. Berg & S. Klitzman, supra note 141, at 6.
. See Appendix C of R. Berg & S. Klitzman, supra note 141, at 116-17, for a chronological chart of the evolving definition of “meeting.”
. House Report I, supra note 144, at 35 (additional views of Rep. Horton); H.R.Rep. No. 880 (Part 2), 94th Cong., 2d Sess. 38 (1976) (additional views of Reps. Moorhead & Kindness) [hereinafter cited as “House Report II”]; 122 Cong.Rec. 24,183 (1976) (remarks of Rep. Horton); id. at 24,188-89 (remarks of Rep. McCloskey).
. 122 Cong.Rec. 24,189-90 (1976) (remarks of Rep. McCloskey); id. at 24,193 (remarks of Rep. Ashley).
. Id. at 24,189 (remarks of Rep. McCloskey); id. at 24,203 (remarks of Rep. Horton).
. Id. at 24,203 (remarks of Rep. McCloskey).
. See, e.g., id. at 24,193 (remarks of Rep. Collins); id. at 24,203 (remarks of Rep. Brooks); id. at 24,204 (remarks of Rep. Abzug); id. (remarks of Rep. Flowers).
. Senate Report, supra note 144, at 19.
. See also R. Berg & S. Klitzman, supra note 141, at 8 (Senate Report’s language excludes “briefings to” and “exploratory talks among agency members”) (emphasis added); id. at 8 n. 13 (citing agency regulations). The Department of Justice has in the past interpreted “meeting” to include “a ‘briefing session’ attended by at least the number of agency members required to take action on behalf of the agency, where the members attending have an opportunity to ask questions or seek clarification of matters of concern.” Department of
The Conference Committee’s substitution of the phrase “determine or result in” for the word “concern,” see Conference Report, supra note 153, at 11, also supports this reading. See 122 Cong.Rec. 28,474 (1976) (remarks of Rep. Fascell) (“This language is intended to permit casual discussions between agency members that might invoke the bill’s requirements under the less formal ‘concern’ standard.”) (emphasis added).
. See 122 Cong.Rec. 24,204 (1976) (remarks of Rep. Abzug); supra notes 165-68, 171, and accompanying text.
. The Commission argues, for example, that it initiated the closed meetings “because [we] recognized the need for a neutral forum for talks which did not create the impression that the Europeans were subject to U.S. regulatory processes.” FCC Brief at 30 n. 24. Affirmance of the district court’s judgment, the Commission warns, “would be inconsistent with the desired impression.” Id. See also DOJ Brief at 25-26; Demory Affidavit ¶ 8 (“The Europeans appreciate the opportunity to communicate with us directly and prefer this to [discussions] through diplomatic channels. In my opinion, the District Court’s order will limit this direct contact and will have a decidedly negative impact on our relations with foreign administrations.”), reprinted in DOJ Brief at 4a.
. DOJ Brief at 26.
. See, e.g., 2A C. Sands, Statutes and Statutory Construction § 47.23-.25 (4th ed. 1973 & 1982 Cum.Supp.).
. We express no views as to whether either of these exemptions could properly be invoked to close the CP discussions.
. Pacific Legal Found v. Council on Envtl. Quality, supra note 152, 636 F.2d at 1265.
. Id
. The Commission on appeal has relied heavily on the Lee and Demory affidavits, see supra notes 19, 25, in support of its characterization of the closed CP sessions. Neither affidavit was submitted until after the district court had rendered its decision. We look with great disfavor on such post hoc attempts to supplement the record. See, e.g., Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 859 n. 6. In any event, the affidavits are vague, conclusory, and contradictory. Lee’s affidavit, for example, largely parrots the language of the statute and legislative history. See Lee Affidavit ¶ 3 (Lee did not “take any action on behalf of the Commission,” “submit ... recommendations,” or “conduct any hearings at such meetings on behalf of the agency”), reprinted in JA at 587-88. Lee’s assertions also flatly contradict the Commission’s conceded purpose for holding the meetings. Compare id. (Lee did not “seek to have the participants ... agree to ... take any specific actions regarding any particular telecommunications policies”), reprinted in JA at 588, with supra notes 24-25 and accompanying text. Similarly, Demory’s affidavit alleges in conclusory terms that the CP meetings “must be off the record” if they are “to be truly useful in providing a vigorous exchange of views.” Demory Affidavit ¶ 5, reprinted in DOJ Brief at 3a. In line with our FOIA decisions, we believe that such conclusory affidavits, even if properly considered at this juncture, are wholly inadequate to sustain the Commission’s burden of proof. See Coastal States Gas Corp. v. Department of Energy, supra note 96, 617 F.2d at 861.
. 5 U.S.C. § 706(2)(A) (1976). See also id. § 706(2)(C)-(D) (reviewing court must set aside agency action found to be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law”).
. Natural Resources Defense Council, Inc. v. SEC, supra note 67, 606 F.2d at 1049.
. Id. (footnote omitted).
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). See generally Home Box Office, Inc. v. FCC, 567 F.2d 9, 34-36 (D.C. Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-94 (D.C.Cir. 1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
. WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C.Cir.1981).
. See, e.g., id. at 819-20 (denial of rulemaking petition re regulation of local subscription television stations); Natural Resources Defense Council, Inc. v. SEC, supra note 67, 606 F.2d at 1046, 1049, 1053 (same re corporate disclosure of environmental and equal employment policies); Action for Children’s Television v. FCC, 564 F.2d 458, 479-80 (D.C.Cir.1977) (same re television programming for children).
. Natural Resources Defense Council, Inc. v. SEC, supra note 67, 606 F.2d at 1048, 1053 (agency compliance with National Environmental Policy Act); see also Geller v. FCC, 610 F.2d 973, 978-80 (D.C.Cir.1979) (per curiam) (agency refusal to consider effect of new legislation on earlier regulations); NAACP v. FPC, 520 F.2d 432, 435-46 (D.C.Cir.1975) (agency jurisdiction), aff'd, 425 U.S. 662, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976); National Org. for Reform of Marijuana Laws (NORML) v. Ingersoll, 497 F.2d 654, 659 (D.C.Cir.1974) (scope of agency authority).
. See, e.g., Vermont Yankee Nuclear Power Corp., Inc. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543-48, 98 S.Ct. 1197, 1211-13, 55 L.Ed.2d 460 (1978); American Trucking Ass’ns v. United States, 627 F.2d 1313, 1321 (D.C.Cir.1980).
. The Commission so argues on appeal, see FCC Brief at 26-27, but the proposals’ “unworkability” did not form the basis for the Commission’s rulemaking denial. See Rule-making Denial, supra note 7, 77 F.C.C.2d at 887-88. Indeed, the Commission seems to have believed that the proposals are generally sound, for it promised to follow most of them, albeit without the adoption of formal regulations, in future CP meetings. Id. at 888.
. Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 183, 401 U.S. at 415, 91 S.Ct. at 823.
. Dunlop v. Bachowski, 421 U.S. 560, 571, 95 S.Ct. 1851, 1859, 44 L.Ed.2d 377 (1975) (citation omitted).
. See supra notes 40-41 and accompanying text.
. See Red Lion. Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969).
. See, e.g., Dunlop v. Bachowski, supra note 190, 421 U.S. at 571, 95 S.Ct. at 1859; Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 183, 401 U.S. at 419-20, 91 S.Ct. at 825; cases cited supra note 186.
. “Record” is something of a misnomer, as the Commission chose not to conduct rulemaking. The “record” here consists simply of the petition, comments, and denial. The Commission has argued, however, that “[t]his case has an administrative record more than amply detailed enough to permit this Court to review the agency decision in a routine manner.” DOJ Brief at 14.
. See, e.g., Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); United States Lines, Inc. v. Federal Maritime Comm’n, 584 F.2d 519, 532-33 (D.C.Cir.1978); Moss v. CAB, supra note 66, 430 F.2d at 900.
. See supra notes 22-26, 66, and accompanying text.
. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
. See, e.g., Rulemaking Petition at 5, reprinted in JA at 20; Reply Comments of ITT World Communications, Inc., at 3 — 4 (Jan. 8, 1980), reprinted in JA at 118-19. See also supra notes 22-26 and accompanying text.
. See, e.g., Home Box Office, Inc. v. FCC, supra note 183, 567 F.2d at 35-36 & n. 58; Portland Cement Ass’n v. Ruckelshaus, supra note 183, 486 F.2d at 393-94.
. Rulemaking Denial, supra note 7, 77 F.C. C.2d at 887-88.
. See Records Denial, supra note 76, Attachment II, 76 F.C.C.2d at 460 (items 5, 7, 8 and 10); Frisby Affidavit ¶ 3, reprinted in JA at 340-41. See also Rulemaking Petition at 9-10 (listing open docket proceedings), reprinted in JA at 24-25.
.See Transcript of FCC Open Meeting, at 1 (Apr. 22, 1980) (remarks of David Bass concerning preliminary draft of rulemaking denial) (“We do have some changes to make in the draft before you now both on our undertaking and at the suggestion of the General Counsel’s Office to strike from this order and help it coordinate with the collateral court suit that ITT has filed in the District Court .... ”), reprinted in JA at 135. See also the colloquy between Commissioner Abbott Washburn and General Counsel Robert Bruce, id. at 6, reprinted in JA at 140:
Washburn: Why do we have to address this here, Mr. Chairman. Why can’t we get at it in some other context. Let’s get rid of this tiem [sic] without addressing this matter at this point.
Bruce: Commissioner Washburn, I think it’s probably useful that we deal with this petition at this time because of the pending litigation in the District Court.
. See, e.g., Camp v. Pitts, supra note 195,411 U.S. at 143, 93 S.Ct. at 1244; United States Lines, Inc. v. Federal Maritime Comm’n, supra note 195, 584 F.2d at 532-33; Greater Boston Television Corp. v. FCC, supra note 197, 444 F.2d at 850.
. See supra Part II-A.
. See supra notes 50-51 and accompanying text.
. See supra notes 52-54 and accompanying text.
. See supra notes 181-90, 192-202, and accompanying text.
. See Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 183, 401 U.S. at 420, 91 S.Ct. at 825.
. 47 U.S.C. § 155(d)(1) (1976). See supra note 145.
. Specifically, the Committee is authorized to act upon all section 214 and 319 common carrier applications, where the cost of construction or value of the facilities exceeds $10 million. 47 C.F.R. § 0.215 (1981).
. See, e.g., Home Box Office, Inc. v. FCC, supra note 183, 567 F.2d at 57; see also Association of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1169 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980).
. See 47 C.F.R. § 0.204(a) (1981) (“Any official (or group of officials) to whom authority is delegated in this subpart is authorized to issue orders ... pursuant to such authority and to enter into general correspondence concerning any matter for which he is responsible under this subpart ....”) (emphasis added). We intimate no views on the proper scope of such dialogues.
. See Rulemaking Denial, supra note 7, 77 F.C.C.2d at 886 & n. 10; FCC Brief at 15; DOJ Brief at 23 & n. 10; FCC District Court Memorandum at 23 (“The only type of business the Telecommunications Committee may engage in, the consideration of common carrier applications, does not arise at these conferences.”), reprinted in JA at 513.
. FCC Brief at 32 n. 26.
. See supra notes 22-26, 146-49, 155-57, and accompanying text.