[66] TATEL, Circuit Judge, dissenting:

The court today concludes that the National Security Council does not exercise sufficiently independent authority to be an "agency" for purposes of the Freedom of Information Act, 5 U.S.C. Section(s) 552 (1994), and the Federal Records Act, 44 U.S.C. § 2101-18, 2901-09, 3101-07, 3301-14 (1994). I respectfully disagree. The NSC, an entity within the Executive Office of the President that complied with FOIA during the administrations of Presidents Ford, Carter, Reagan, and Bush, declared itself exempt from FOIA only recently while this litigation was pending. In my view, the record demonstrates that the NSC exercises, in areas such as information security, telecommunications, non-proliferation, and public diplomacy, just the sorts of independent authority that our cases hold satisfy the requirements of the FOIA definition of "agency." Holding the NSC subject to FOIA and the Federal Records Act is consistent with those statutes and their purposes. Moreover, FOIA's exemption for national security materials, combined with the inapplicability of FOIA and the Federal Records Act to certain materials produced by NSC members who hold separate non-NSC positions, such as in the Office of the President or the Office of the Vice President, ensures that the NSC's compliance with these statutes would not interfere with the President's development of foreign policy.

I.

Our task in this case is to determine whether the NSC is an agency for purposes of the Federal Records Act and is therefore subject to the records disposal guidelines set forth in that statute. Because the same documents cannot simultaneously be subject to the different requirements of the Federal Records Act and the Presidential Records Act, 44 U.S.C. Section(s) 2201-07 (1994), see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993) (Armstrong II), and because the Presidential Records Act specifies that its coverage and the coverage of FOIA are mutually exclusive, see 44 U.S.C. Section(s) 2201(2)(B), this court has treated the definition of "agency" in the Federal Records Act as coterminous with the FOIA definition of "agency," see Armstrong II, 1 F.3d at 1293. We have also held that, in light of the suggestion in FOIA's legislative history that Congress intended to adopt this court's approach in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), FOIA's definition of "agency," though literally including "any . . . establishment in the executive branch of the Government (including the Executive Office of the President)," 5 U.S.C. Section(s) 552(f) (emphasis added), does not include EOP units whose sole functions are to advise and assist the President or that do not exercise "substantial independent authority." See Rushforth v. Council of Economic Advisors, 762 F.2d 1038, 1040-43 (D.C. Cir. 1985); Soucie, 448 F.2d at 1073, 1075. Although these two formulations of the Soucie rule — the "sole function" test and the "substantial independent authority" inquiry — might conceivably point in different directions for certain entities, see Maj. op. at 7, our precedents seem to require us to view them, to the extent possible, as essentially opposite sides of the same coin. In other words, if an entity has some significant function apart from advising and assisting the President, then we should view the agency as exercising substantial independent authority and therefore as a FOIA agency.

A.

In Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993), we held that in determining whether an entity within the Executive Office of the President that "help[s] the President supervise others in the executive branch" exercises substantial independent authority, we should focus on three factors: the unit's proximity to the President, "the nature of its delegation from the President," and "whether it has a self-contained structure." Id. at 1293. We treated the three factors not as elements to be weighed against each other as in a balancing test, but rather as keys to understanding the nature of an EOP unit's functions in order to determine whether the unit exercises substantial independent authority apart from advising and assisting the President. Although I agree with the court's conclusion that the NSC has a self-contained structure — Meyer's final factor — I think the court fails to appreciate the functional nature of the Meyer inquiry in its analysis of the first two factors.

Regarding the first Meyer factor — proximity to the President — I certainly agree with my colleagues that, in light of the President's membership on the NSC, the NSC is proximate to the President. In my view, that conclusion should simply be a starting point for our consideration of the second Meyer factor; we still must analyze how the President's membership on the NSC affects that entity's functions. With all due respect, I fear the President's membership on the NSC has obscured from my colleagues the extent to which the NSC actually exercises independent authority.

In Meyer, we "assume[d] . . . that Congress intended the phrase "solely to advise and assist' the President to refer to entities whose characteristics and functions were similar to those of the President's immediate personal staff." Id. In other words, the EOP units that Congress meant to exclude from the coverage of FOIA are those as close operationally to the President as his personal staff. Apparently to make clear that proximity to the President is important to the extent that it suggests something about function, we explained that the proximity factor referred to a unit's "continuing interaction" with the President. Id.

Generally, an entity's proximity to the President makes it more likely that its functions are advisory. That is, the closer an entity is to the President, the less likely we are to find truly independent authority; the further from the President, the more likely the entity's authority is truly independent. The entity at issue in Meyer, the Task Force on Regulatory Relief, was a small committee operating in such close proximity to the President that none of its decisions could fairly be described as independent of him. See id. at 1294. The NSC has a more complex structure than the Task Force. On the one hand, the President himself is a member of the NSC. On the other hand, the NSC is a much larger entity, many of whose parts are not nearly as close to the President as was the Task Force in Meyer. According to the reasoning underlying Meyer's proximity factor, then, while we should expect some NSC functions to be akin to those of the President's personal staff, we should not be at all surprised to find independent functions exercised by the less proximate NSC staff and numerous NSC interagency groups. Even with the President as a member, the NSC is a legal entity distinct from the President, and the record indicates that responsibilities delegated to the NSC are in fact carried out without the personal involvement of the President.

It is with respect to the remaining element of the Meyer inquiry — the nature of the authority delegated to an EOP unit — that I part most significantly from the court's approach. In my view, the greatest challenge posed by the Soucie and Meyer tests is reading the phrase "advise and assist the President" in a meaningful but not overly broad way. A host of executive branch activities that Congress subjected to FOIA can also be viewed as activities that "assist the President," for surely the President is assisted in executing the laws by every delegation of power that he makes. See Meyer, 981 F.2d at 1293. As we made clear in Meyer, we must not allow the "advise and assist" exception to swallow the FOIA rule. That is exactly what I fear the court has done today.

Apparently because of the President's membership on the NSC, the court treats the Meyer delegation prong in what I believe to be an unrealistic fashion, expecting Armstrong to demonstrate that NSC activities reflect a sort of independence from the President that neither FOIA nor our cases envision as a requirement for FOIA agencies. For example, I think the court makes too much turn on whether an entity may act without the consent of the President. The court suggests that an entity cannot have "substantial non-advisory authority of its own" unless it may exercise its authority "without the consent of the President." Maj. op. at 17. Although saying that an entity does not seem "independent" if it must obtain consent before acting makes a certain amount of linguistic sense, this cannot be what our cases mean by "independent." To be an agency under the Administrative Procedure Act (and thus FOIA) an entity does not need to be able to act without consent. The APA definition of "agency" — which is less encompassing than the FOIA definition — includes "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. Section(s) 551(1) (1994) (emphasis added). Nothing in the APA definition suggests that it excludes entities that, before taking action, must submit plans for review and approval by another agency. That is, even an entity that acts only with the consent of another agency could still be an agency under the APA and thus under FOIA. Crucial to the "agency" inquiry is not whether an entity is unaccountable to all other agencies within the executive branch, but whether the entity has the power to act provided no higher authority disapproves.

This case, of course, does not concern an executive branch entity that must obtain the consent of another agency, but an entity within the Executive Office of the President that may under certain circumstances have to obtain the consent of the President, who is not an "agency" under the APA, see Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). That an entity's actions are subject to the President's consent is hardly unusual and should certainly not be a basis for exempting an entity from FOIA. I doubt that any President would permit an EOP unit to act against his will or that other executive agencies would comply with any order from an EOP unit thought not to reflect either the President's wishes or his general policies, yet FOIA clearly specifies that EOP units can be "agencies" under the statute. The problem with the court's view of consent is that the very notion of agency embodies consent. As the Government argued in an earlier stage of this litigation, "An `agency' is generally understood as being responsible to a `principal': it is the instrumentality through which another works. The President . . . is the principal in the executive branch to whom agencies are responsible." Brief for Appellants at 19, Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) (No. 90-5173) (citation omitted). The court's focus on consent risks treating FOIA as if it were more concerned with decisionmaking than with decision implementation. Nothing in FOIA contains any such indication. FOIA gives private citizens access to information from executive branch agencies that do the work of government. Its "sole function" exception excludes only a small subset of entities within the Executive Office of the President that do not themselves "do" anything apart from advising the President and assisting him in what he does.

In determining whether an EOP unit exercises independent authority or only advises and assists the President, I would therefore focus on whether the unit actually takes action itself, as opposed to taking steps simply to assist the President in taking action. For example, a unit within the Executive Office of the President might be viewed as merely assisting the President if its activities prepare the President for action or facilitate his actions. In contrast, if the President actually delegates to the unit responsibility for taking certain action itself, then the unit is not simply assisting the President to take action, but is itself exercising delegated authority. If the entity is itself taking action, then it matters little that the President retains power to approve or disapprove the entity's action. Indeed, if the President were to delegate an enormous amount of authority to an entity within the Executive Office of the President with the understanding that the entity would submit weekly proposals of its actions for the President's approval, the mere fact that the entity could not act without the President's consent would not be grounds to exempt that entity from the coverage of FOIA or the Federal Records Act as long as it is the entity itself that acts. To the extent that the entity does the work of government — exercising authority in a way that has concrete effects either on the interests of private citizens or on other parts of the government — the entity is engaging in just the sort of official activity that the Federal Records Act and FOIA were designed to bring into public view.

B.

In my view, the court's failure to appreciate the functional focus of the Meyer inquiry has led it to the erroneous conclusion that the NSC does not exercise substantial independent authority apart from advising and assisting the President. Although a court applying the "sole function" test need find only one non-advise-and-assist function to conclude that an EOP unit is an agency for FOIA and Federal Records Act purposes, I describe below several examples of significant non-advise-and-assist functions carried out by the NSC that should render it an agency.

Information Security

The record persuasively demonstrates that the NSC has repeatedly performed a classic agency adjudicatory function in deciding whether waivers should be granted to permit federal agencies to use non-standard security forms. Federal regulations establish that, as part of a "government-wide information security program" to "enhance the protection of national security information and/or [to] reduce the costs associated with its protection," executive branch departments and independent agencies must use a standard non-disclosure form (or one of its predecessors). 32 C.F.R. Section(s) 2003.1 (1995). The regulations require that all employees of executive departments and independent agencies, as well as employees of government contractors and licensees, sign a standard security form "before being granted access to classified information." Section(s) 2003.20(b)-(c). Agencies may also require other persons to sign the standard form before obtaining such access. 2003.20(d). According to the regulations, although use of the standard form by departments and agencies is "mandatory," Section(s) 2003.2, an agency may request a waiver from the requirement of using the standard form. 2003.20(k). The regulations provide that "[o]nly the National Security Council may grant an agency's request for a waiver from the use of the [standard form]." Id. An agency requesting a waiver must submit a proposed alternative to the Director of the Information Security Oversight Office, who, after consulting with the Department of Justice on the enforceability of the proposed alternative agreement form, will "mak[e] a recommendation to the National Security Council." Id. The record in this case documents several instances in which the NSC has exercised this independent function. It approved waivers for the Central Intelligence Agency (after a dispute between that agency and the ISOO), for the National Security Agency, and for the Board of Governors of the Federal Reserve System. In the course of the present litigation, the Government has admitted that "[o]fficials of the NSC approve or disapprove requests for waiver from the obligation to use standard forms prescribed by 32 C.F.R. Part 2003, without the personal involvement of the President." Supplemental Responses of Defendant to Plaintiffs' First Set of Requests for Admission, Armstrong v. Executive Office of the President, 877 F. Supp. 690 (D.D.C. 1995) (No. 89-0142). Although the Government argues that "it is the National Security Advisor, in his role as the President's advisor, who performs the key functions of approving" waivers, Brief of Appellants at 34, the record demonstrates that the NSC staff reviews waiver requests and the Executive Secretary of the NSC signs grants of waivers. Significantly, the relevant regulation does not give this power to the National Security Advisor, but rather states that "[o]nly the National Security Council may grant" such waivers. 32 C.F.R. Section(s) 2003.20(k). This function alone — exercising the power, without the personal involvement of the President, to decide whether executive branch and independent agencies may use non-standard security forms — would be sufficient to render the NSC an agency.

Whether the regulation that gives the NSC the power to grant these waivers is still in effect is not entirely clear. The ISOO issued the regulation pursuant to section 5.2(b)(7) of Executive Order No. 12,356, which in 1983 gave the ISOO Director "the authority to prescribe, after consultation with affected agencies, standard forms that will promote the implementation of the information security program." Exec. Order No. 12,356, Section(s) 5.2(b)(7), 3 C.F.R. 166, 176 (1983), reprinted in 50 U.S.C. Section(s) 435 (1994). Under Executive Order No. 12,356, the NSC had responsibility for "overall policy direction for the information security program." Id. Section(s) 5.1(a), 3 C.F.R. at 175 (1983), reprinted in 50 U.S.C. Section(s) 435. In 1995, President Clinton revoked Executive Order No. 12,356. See Exec. Order No. 12,958, 60 Fed.Reg. 19,825, at 19,843 (1995). Executive Order No. 12,958 gave the Director of the Office of Management and Budget authority to issue directives to implement the order and placed the ISOO within the OMB. See id. Section(s) 5.2(a), 5.3, 60 Fed.Reg. at 19,838-39. Although Executive Order No. 12,958 gave the Director of the ISOO "the authority to prescribe, after consultation with affected agencies, standardization of forms or procedures that will promote the implementation of the program established under this order," id. Section(s) 5.3(b)(7), 60 Fed.Reg. at 19,839 — a delegation similar to the one in Executive Order No. 12,356 under which the ISOO issued the regulation originally giving the NSC final responsibility over waiver decisions — the NSC may no longer retain this power under Executive Order No. 12,958. Nevertheless, even if the NSC no longer has the power to rule on these waiver requests, it exercised substantial, independent authority without the involvement of the President, and was thus an agency, when it did have this authority — including when some of the records at issue in this lawsuit were produced. Because a functional test serves to determine whether an entity is an "agency" for purposes of FOIA and the Federal Records Act and because presidential delegations of authority can suffice to render an entity an agency, executive orders can have the effect of bringing an entity within or outside the coverage of FOIA. The "sole function" test requires that, to be exempt from FOIA, an EOP unit have no significant non-advise-and-assist functions. Therefore, the NSC's waiver authority, when it existed, was alone sufficient to bring the NSC within FOIA's definition of "agency."

The court's citation of Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974), for the proposition that "we apply the law in effect at the time we render our decision," Maj. op. at 16, is beside the point. Bradley presented the question whether a statute enacted during the course of a particular lawsuit should be applied to that lawsuit. See Bradley, 416 U.S. at 709-11. In the present case, the relevant "law [that is] in effect at the time we render our decision" and that we must apply to the facts in the record is the FOIA definition of "agency." Armstrong seeks access to NSC records dating from the mid-1980s. The question before us, then, is whether the NSC is now or was for any time since the mid-1980s an agency under the FOIA definition. The court's effort to discount the relevance of a delegation of authority that may no longer be in effect is unpersuasive. In any event, as I explain below, I think that other NSC functions are enough to render the NSC an agency even if the NSC no longer has power to rule on security form waiver requests.

Telecommunications

The NSC possesses and has exercised substantial independent authority in the area of telecommunications. Together with the Office of Science and Technology Policy, the NSC has published extensive plans for telecommunications regulation "during crises and emergencies." See 47 C.F.R. Section(s) 201-216 (1995). Included among these plans is a "precedence system for the expeditious handling of messages and calls transmitted over Government and public correspondence facilities in all types of situations from peacetime to massive nuclear attack." Section(s) 213.1(a). With the Federal Communications Commission, the NSC has established a "Priority System for Intercity Private Line Services" in order to protect "[p]rivate line services for military, governmental, and other essential users." Section(s) 213.7(g) (citing FCC Order 67-51). These telecommunications plans provide that during emergencies, although communications common carriers will normally be permitted to "use their judgment in determining" how many circuits to devote to categories of public correspondence entitled to precedence over other messages and calls, "the authority is reserved to the National Security Council or the Federal Communications Commission, as appropriate to the time and situation, to revise the decisions of the carriers respecting the allocation of circuits, and to resolve any questions which are referred to them by the carriers or the users." Id. Thus, during national emergencies, the NSC has authority to decide whether communications common carriers have devoted adequate circuits to public correspondence deserving precedence and to resolve other questions referred by carriers or the users of their services. To me, this is a classic example of substantial independent authority.

In rejecting the NSC's emergency telecommunications responsibilities as substantial independent authority, the court states that "Armstrong has not . . . established that any of this authority can be exercised without the consent of the President." Maj. op. at 17. The court offers no explanation, however, of what it would have Armstrong show. If the court means that Armstrong must show that the NSC is not obligated to obtain the President's consent each time it exercises its authority, Armstrong has satisfied this burden: The regulation clearly states that the relevant "authority is reserved to the National Security Council or the Federal Communications Commission, as appropriate to the time and situation." 47 C.F.R. Section(s) 213.7(g). The plain language of the regulation thus gives the NSC, where appropriate for it to act instead of the FCC, the authority to act without first seeking the President's consent. If the court means that Armstrong must show that the NSC may exercise its authority even over the objection of the President, then the court has created an impossible hurdle. No EOP unit can be "independent" of the President in the way that independent agencies outside the executive branch can.

Proposing another possible reason to discount the NSC's telecommunications responsibilities, the Government argues that responsibilities shared with other entities cannot suffice to bring the NSC within FOIA. This argument has no foundation in either the statute or the "sole function" test. The Meyer test is premised in part on the notion that, in order for an EOP unit to be considered an agency, it must not be too similar to the President's personal staff; in other words, the agency must take some sort of action that is independent of the President's action. But nothing in FOIA or the sole function test requires that an agency's authority be independent of authority exercised by another executive branch entity. The fact that a delegation of authority requires two executive branch entities to cooperate in carrying out clearly non-advise-and-assist functions does not mean that the entities exercise no authority sufficiently separate from the President to be "agencies" under FOIA. It simply means that both agencies exercise such authority together and are thus both potentially subject to FOIA.

One other potential objection to giving weight to the NSC's telecommunications responsibilities is their possibly hypothetical nature. The record does not indicate whether the NSC has ever exercised its authority over communications common carriers during an emergency. I raise this point because, with respect to another NSC function, the court expresses its "reluctan[ce] to consider the mere formality of a delegation of authority, unexercised and for all that appears, therefore, of no consequence, the indicium of an entity with substantial independence from the President." Maj. op. at 16. My colleagues express their hesitation with respect to a power — to decide appeals from certain decisions of the ISOO — whose non-exercise is apparently due to the fact that it has been found to be of little or no use. The NSC's telecommunications authority, in contrast, would likely prove very useful and perhaps necessary given the occurrence of certain events, such as a national emergency. I doubt that the Government or the court would suggest that an entity given important responsibilities in the event of a national emergency would not be subject to FOIA until such an emergency took place. Once such an emergency occurred and the entity exercised its contingent authority, the entity certainly would be an agency subject to FOIA. It defies the purpose of FOIA to suggest, however, that the statute Congress passed to bring government operation into more public view would not entitle the public to important information about the entity — including, for example, information about whether it is in fact prepared to carry out its responsibilities in case of a national emergency — until it is too late for the information to be of perhaps its most important use.

Most important, not all of the NSC's telecommunications authority is hypothetical. The NSC has already acted in conjunction with the Office of Science and Technology Policy and the FCC to develop the elaborate telecommunications plan contained in 47 C.F.R. Section(s) 201-216. In my view, then, the NSC's telecommunications responsibilities are enough to render it an "agency" for FOIA and Federal Records Act purposes.

Non-proliferation

The NSC has also been delegated authority to review and make recommendations regarding export license applications. Under regulations implementing section 309(c) of the Nuclear Non-Proliferation Act of 1978, 42 U.S.C. Section(s) 2139a(c) (1994), the Secretary of Commerce has responsibility for initiating procedures for review of export licenses for "items . . . that could be of significance for nuclear explosive purposes if used for activities other than those authorized at the time of export." 15 C.F.R. Section(s) 778.2(a) (1996). According to procedures adopted pursuant to the Non-Proliferation Act, if the Departments of Commerce and Energy believe that an export license application should be denied or reviewed by another agency, these departments must refer the application to the Subgroup on Nuclear Export Coordination ("SNEC") of the NSC Ad Hoc Group on Nonproliferation, which "shall promptly consider any such application and provide its advice and recommendations to the Department of Commerce." See Procedures Established Pursuant to the Nuclear NonProliferation Act of 1978, pt. F, Section(s) 1(b), reprinted in 15 C.F.R. pt. 778, supp. 1 (1996) [hereinafter Non-Proliferation Procedures]. If the SNEC reaches agreement on the application, the Commerce Department must consider the SNEC's recommendation, see 50 U.S.C. App. Section(s) 2409(f)(1) (1994) (requiring the Secretary of Commerce to "take into account any recommendation of a department or agency with respect to [an] application in question"), and must give the license applicant an opportunity to respond to a negative SNEC recommendation, see 50 U.S.C. App. Section(s) 2409(f)(2) (1994). If the SNEC cannot reach agreement on the application, then the SNEC may refer the matter to the NSC Ad Hoc Group on Non-Proliferation, also an interagency working group, or afterward to the President. See Non-Proliferation Procedures, pt. F, Section(s) 1(b).

Because the non-proliferation procedures explicitly provide that the President has final authority to resolve interagency disagreements on the SNEC, review by the NSC Ad Hoc Group on Non-Proliferation in the event that the SNEC cannot reach agreement does not qualify as substantial independent authority under Meyer. In considering a similar review procedure whereby the Task Force on Regulatory Relief had the option of either resolving interagency disputes itself or referring them to the President, we expressed doubt in Meyer that "any . . . head of a department or agency who reports directly to the President, would acquiesce in a Task Force decision that was thought not to represent directly and precisely the President's opinion." Meyer, 981 F.2d at 1295.

This does not settle whether, in those more numerous cases in which the SNEC reaches agreement about an export license application, SNEC application review and SNEC recommendations to the Commerce Department constitute exercises of substantial independent authority. As an initial matter, the SNEC — an interagency working group that includes a nonvoting NSC representative and voting representatives from the Departments of Commerce, Energy, Defense, and State and the Arms Control and Disarmament Agency — is clearly part of the NSC. The Government does not dispute this. See, e.g., Brief for Appellants at 43 n. 30. Indeed, the current Assistant to the President for National Security Affairs so stated in a declaration in the record, and President Clinton's Presidential Decision Directive 2 on the "Organization of the National Security Council," dated January 20, 1993, makes clear that interagency working groups are part of the NSC. Second, evaluating applications to determine their propriety is a classic agency function. Because the APA treats as agencies even entities whose decisions are "subject to review by another agency," 5 U.S.C. Section(s) 551(1), it matters not that the Secretary of Commerce is bound only to consider the SNEC's recommendations, not to accept them. The SNEC's authority to evaluate export license applications for potential nuclear proliferation risks and make recommendations to another agency is no less "substantial independent authority" than was the Office of Science and Technology's power to evaluate federal research programs, which we held in Soucie was sufficient to render the OST an agency under the APA. See Soucie, 448 F.2d at 1073, 1075. Having no power to act upon its evaluations, the OST simply conducted its reviews and made its findings available for other government entities. Finally, SNEC authority to review license applications is far from hypothetical; the parties' joint statement of facts before the district court indicates that the SNEC regularly exercises this authority and that its recommendations have substantial influence in the Commerce Department's review of export license applications. According to the record, SNEC has reviewed hundreds of license applications under these procedures, and the Department of Commerce uniformly follows the SNEC's recommendations.

Public Diplomacy

Armstrong has also demonstrated that certain NSC interagency groups have substantial independent authority in the area of public diplomacy. In 1983, National Security Decision Directive 77 established an NSC Special Planning Group chaired by the Assistant to the President for National Security Affairs and including as members the Secretaries of Defense and State, the Directors of the United States Information Agency and the Agency for International Development, and the Assistant to the President for Communications. See Management of Public Diplomacy Relative to National Security, NSDD 77 at 1 (Jan. 14, 1983). NSDD 77 provides that the Special Planning Group "shall be responsible for the overall planning, direction, coordination and monitoring of implementation of public diplomacy activities" and "shall ensure that a wide-ranging program of effective initiatives is developed and implemented to support national security policy, objectives and decisions." Id. NSDD 77 also creates four interagency committees under the Special Planning Group's supervision. One of these committees, the International Political Committee, is "responsible for planning, coordinating and implementing international political activities in support of United States policies and interests relative to national security." Id. at 2. Among its tasks are providing "aid, training and organizational support for foreign governments and private groups to encourage the growth of democratic political institutions and practices." Id. In my view, training private groups to encourage the growth of democratic institutions can be considered "assisting the President" only by defining assisting the President so as to encompass nearly all executive branch activity.

Another of the four committees under the supervision of the Special Planning Group is the International Broadcasting Committee, which is "responsible for the planning and coordination of international broadcasting activities sponsored by the U.S. Government." Id. at 3. NSDD 77 specifies that "[a]mong its principal responsibilities will be diplomatic and technical planning relative to modernization of U.S. international broadcasting capabilities" and "the development of anti-jamming strategies and techniques." Id. Technical planning of United States international broadcasting capabilities and developing both strategies and techniques of avoiding jamming of United States broadcasts are substantial delegations of authority that are almost certainly independent of any direct involvement by the President.

The court says little about the activities of these committees. Focusing instead on the Special Planning Group that reviews and provides guidance to these committees, the court finds dispositive that the Special Planning Group acts "to secure conformity to overall goals fixed by the President." Maj. op. at 20. Under this reasoning, nearly every EOP unit would be exempt from FOIA and Federal Records Act coverage. One way or another, the President sets goals for all executive branch agencies, including EOP units. The key question is not who sets the goals toward which an entity works, but whether an entity itself takes action in furtherance of executive branch goals. NSDD 77 clearly delegates to the Special Planning Group planning and monitoring responsibilities distinct from the actions of the President. Because it makes special provision for "[p]ublic diplomacy activities involving the President or the White House," requiring that these activities "be coordinated with the Office of the White House Chief of Staff," NSDD 77 at 1, NSDD 77 suggests that the Special Planning Group has responsibility for public diplomacy activities that do not involve the President. I do not understand how the purposes of the sole function test warrant the conclusion that an entity charged with "the overall planning, direction, coordination and monitoring of implementation of public diplomacy activities," id., has no "substantial independent authority." At the very least, the Special Planning Group's function of "periodically review[ing] the activities of the four permanent coordinating committees to insure that plans are being implemented and that resource commitments are commensurate with established priorities," id., is sufficiently similar to the evaluative function that we found in Soucie warranted treating the OST as an agency.

C.

I think the framers of the Federal Records Act, FOIA, and the Presidential Records Act would be quite surprised to learn from the court's opinion that the Federal Records Act does not cover and FOIA does not guarantee citizens access to nonsensitive NSC documents regarding the request by the Federal Reserve System and other agencies to use nonstandard security forms with their employees and contractors; the NSC's national emergency telecommunications plans; hundreds of reviews of export license applications conducted by an NSC interagency group; and an NSC interagency group's development of anti-jamming broadcast strategies and techniques. These functions — along with other NSC activities — are classic examples of agency action performed without the personal involvement of the President. They are just the sorts of activities that subject an entity to FOIA and the Federal Records Act. Holding that the NSC exercises substantial independent authority and is subject to FOIA and the Federal Records Act would be perfectly consistent with what those who enacted the Presidential Records Act thought they were doing when they designed the mutual exclusivity of that statute and FOIA. Unlike the Task Force at issue in Meyer, an entity created after the passage of FOIA and the Presidential Records Act, the NSC predates both statutes. In applying the legislative-history-based Meyer test, it therefore makes sense to take into account legislative history relevant to the NSC's status, not to sidestep Meyer and its elaboration of Soucie's sole function test, but to hold in check this court's application of that test. This is so particularly because the language of the FOIA definition of "agency" — "any . . . establishment in the executive branch of the Government (including the Executive Office of the President)" — clearly covers the NSC and because the only statutory basis for exempting the NSC from FOIA's coverage is a limited exception derived from the legislative history of FOIA. In my view, the legislative history of the Presidential Records Act indicates just how far the court's application of the Meyer test has strayed from Congress's commands.

The Presidential Records Act and its legislative history clearly indicate that it was not the purpose of the Presidential Records Act to cover entities subject to FOIA at the time of the Presidential Records Act's passage. In 1978, when the House Report on the Presidential Records Act provided that "that which is now subject to FOIA would remain so," H.R. Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5742, Congress was officially on notice of the NSC's compliance with FOIA from two separate sources. The NSC had issued FOIA regulations on February 19, 1975, see 40 Fed.Reg. 7316 (1975) (codified at 32 C.F.R. pt. 2101), and, as the record in this case indicates, the NSC had complied in 1975, 1976, 1977, and 1978 with FOIA's requirement that each covered agency annually submit a copy of its FOIA regulations and a report of its administration of FOIA to the Speaker of the House of Representatives and to the President of the Senate for referral to appropriate congressional committees, see 5 U.S.C. Section(s) 552(e) (formerly Section(s) 552(d)). In addition, the record of the 1978 hearings before the House Subcommittee of the Committee on Government Operations includes a report by the Library of Congress's Congressional Research Service concluding that eight EOP units, including the NSC, were agencies for FOIA purposes. See Library of Congress Congressional Research Service, Applicability of the Freedom of Information Act to the Executive Office of the President 20 (1978), reprinted in Hearings on H.R. 10998 and Related Bills Before a Subcomm. of the House Comm. on Gov't Operations, 95th Cong., 2d Sess. 759, 778 (1978) [hereinafter Presidential Records Act Hearings]. The report noted: "The NSC has FOIA regulations and has been the subject of court cases under the Act. The NSC has an active FOIA component." Id. at 8, reprinted in Presidential Records Act Hearings at 766. The CRS report further stated that, with respect to the Vice President, "it would seem that records generated by his duties as Smithsonian regent or NSC member would be the only records available under the FOIA from the Office of the Vice President, assuming there are such records and they are located in that Office." Id. at 18, reprinted in Presidential Records Act Hearings at 776. In addition, by the time President Carter signed the Presidential Records Act into law in November 1978, see 14 Weekly Comp. Pres. Doc. 1965 (Nov. 6, 1978), the Office of Legal Counsel had advised the President in its Memorandum of September 6, 1978 that the NSC is an agency for FOIA purposes. See 2 Op. Off. Legal Counsel 197, 205 (1978), withdrawn, Memorandum from Walter Dellinger, Acting Assistant Att'y Gen., Office of Legal Counsel, to Alan J. Kreczko, Special Assistant to the President and Legal Advisor, Nat'l Sec. Council (Sept. 20, 1993). Clearly, then, those responsible for the enactment of the Presidential Records Act in 1978 — both Congress and the President — were on notice of the NSC's compliance with FOIA and its apparent status as a FOIA agency. Such indications in the legislative history of the Presidential Records Act that those who enacted that statute likely thought that it would not cover the NSC should make us hesitant to rule that Congress did not subject the NSC to FOIA.

Further support for treating the NSC as a FOIA agency may arguably be found in the legislative history of the 1974 FOIA amendments. A House Report noted that the amended FOIA definition of "agency" would include "such functional entities as . . . the National Security Council." H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6274. This court has disavowed reliance on the House Report on the ground that a Conference Report subsequent to the House Report adopted the Soucie test without enumerating specific FOIA agencies. See Rushforth, 762 F.2d at 1040. Nevertheless, then — Justice Rehnquist's opinion for the Supreme Court in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), cited the 1974 House Report and described it as "indicating that the National Security Council is an executive agency to which the FOIA applies." Id. at 156.

II.

Because the court concludes that the NSC is not an agency for purposes of the Federal Records Act, it does not reach the issue raised in Armstrong's cross-appeal: whether the district court erred in holding that the Presidential Records Act rather than the Federal Records Act applies to NSC records "in the limited circumstance in which a high level official of the NSC acts solely to advise and assist the President." Armstrong v. Executive Office of the President, 877 F. Supp. 690, 706 (D.D.C. 1995). In view of my conclusion in Part I that the NSC is an agency, I would reach this issue. To comply with one of our precedents and a decision of the Supreme Court, I would recognize an exception different from the one the district court suggested. In Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), we found no basis in FOIA to distinguish between the Attorney General and the Department of Justice such that the Attorney General would not be an agency for FOIA purposes when acting solely in an advisory capacity to the President. See id. at 786-89. A few weeks later, in Kissinger, the Supreme Court held that, assuming the NSC were an agency to which FOIA applies, documents related to the activities of the Assistant to the President for National Security Affairs when "act[ing] in his capacity as a Presidential adviser, only" were not subject to FOIA. Kissinger, 445 U.S. at 156.

Although the holdings of Ryan and Kissinger may appear in tension with one another, they are easily reconcilable. Indeed, we followed Ryan in a case concerning the Government in the Sunshine Act, 5 U.S.C. Section(s) 552b, decided within a year of Ryan and Kissinger, see Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1264 (D.C. Cir. 1980), and we have since discussed Ryan's holding without suggesting that Kissinger called it into question, see, e.g., Armstrong II, 1 F.3d at 1295. The Supreme Court's holding in Kissinger was quite limited. The Court simply concluded that because the Office of the President is not part of the EOP and because Congress clearly wished to exclude from FOIA's coverage entities within the Office of the President — that is, the President's immediate personal staff and assistants — documents related to activities performed by a person with two positions, one in a FOIA agency and one in the Office of the President, while serving in his or her capacity in the Office of the President are not subject to FOIA. See Kissinger, 445 U.S. at 156. Thus, a presidential assistant such as the Assistant to the President for National Security Affairs is not subject to FOIA while serving in that capacity even if he is subject to FOIA when acting in another capacity, for example, as a member of the NSC. See id. In contrast, Ryan involved the Attorney General, who, while often advising the President, does not hold an official position in the Office of the President as a presidential assistant. As we observed in Ryan, see 617 F.2d at 787-89, nothing in FOIA, in its legislative history, or in Soucie, which the legislative history purports to adopt, supports treating agencies or their parts as non-agencies whenever they perform advisory functions. Rather, Congress subjected to FOIA all EOP units except those whose sole functions are to advise and assist the President. See Armstrong II, 1 F.3d at 1295. Naturally, then, many entities subject to FOIA will also advise and assist the President.

The Kissinger holding thus addresses a limited situation: someone holding two positions, one in a FOIA agency and one in the Office of the President as a presidential assistant. Consistent with Kissinger, I would therefore hold that records created or received by, and in the control of, any NSC member who also holds a separate position, such as in the Office of the President or the Office of the Vice President, while acting in his or her non-NSC capacity are not NSC records. Holding the NSC subject to FOIA and the Federal Records Act would thus not render subject to those statutes documents of the Assistant to the President for National Security Affairs, the Vice President, or other NSC members while acting in their non-NSC capacities (unless their non-NSC activities are otherwise subject to FOIA and the Federal Records Act). Cf. Library of Congress Congressional Research Service, supra, at 18-19, reprinted in Presidential Records Act Hearings at 776-77 (reaching similar conclusion with respect to the Vice President). I think it is in keeping with Kissinger, however, to hold that the records of such officials are subject to FOIA and the Federal Records Act when those officials act in connection with the NSC to carry out or assist in carrying out NSC functions, even when those NSC functions are advising or assisting the President. Consistent with this court's decision in Ryan but contrary to the district court's holding, otherwise qualifying records in the control of NSC officials while acting in NSC capacities should be considered agency records for purposes of FOIA and federal records under the Federal Records Act, even if such officials hold high level positions within the NSC and even in circumstances in which such officials act to advise or assist the President.

III.

My view that the NSC is an agency for purposes of FOIA and the Federal Records Act also requires that I consider the Government's argument that subjecting the NSC to the requirements of these statutes would violate constitutional separation of powers principles by intruding improperly into the President's exercise of his constitutional duties. The district court rejected this argument, as would I. Although we should avoid statutory constructions that would raise serious constitutional problems, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 575 (1988), none is raised by subjecting the NSC to FOIA and the Federal Records Act. In upholding a statute giving the Administrator of General Services the authority to take custody of former President Nixon's presidential papers and tape recordings, the Supreme Court noted that there was "abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive Branch." Nixon v. Administrator of General Services, 433 U.S. 425, 445 (1977). Citing FOIA and the Federal Records Act, the Court stated that "[s]uch regulation of material generated in the Executive Branch has never been considered invalid as an invasion of its autonomy." Id.

The Government's request that we rule the NSC exempt from FOIA on the basis of broad, general allegations of unconstitutional intrusion has no foundation in precedent. We have suggested that such broad constitutional attacks are inappropriate if in particular contexts steps might be taken to avoid undue intrusions on the executive branch. In Pacific Legal Foundation, we rejected the Government's argument that applying the Government in the Sunshine Act to the Council on Environmental Quality would violate constitutional principles of separation of powers. We explained:

The constitutional issues . . . are posed in an abstract context that is inappropriate for their adjudication. It may be that by closing certain meetings, the Council could avoid possible constitutional problems. We apply the settled rule that federal courts "will not `anticipate a question of constitutional law in advance of the necessity of deciding it.'"

Pacific Legal Found., 636 F.2d at 1265 (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)). The record contains no evidence that the conduct of foreign affairs or national security preparedness under Presidents Ford, Carter, Reagan, and Bush, or indeed during the first year of the Clinton Administration, suffered from FOIA compliance. Consistent with our approach in Pacific Legal Foundation, we could hold the NSC subject to FOIA with the understanding that the Government is free to raise another day constitutional objections to subjecting particular documents to the requirements of that statute. Cf. Nixon, 433 U.S. at 443 ("[I]n determining whether the [Presidential Recordings and Materials Preservation] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." (citation omitted)).

Even were it appropriate for us to entertain the Government's broad attack on applying FOIA and the Federal Records Act to the NSC, the Government's case would be weak. Because FOIA exempts from its coverage materials classified "in the interest of national defense or foreign policy," 5 U.S.C. Section(s) 552(b)(1)(A), as well as "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency," Section(s) 552(b)(5), applying FOIA to the NSC presents little risk of improper intrusion into the President's exercise of his constitutional responsibilities. Indeed, the broad applicability of the national security exemption to NSC records likely explains the NSC's ready compliance with FOIA for nineteen years under Presidents Ford, Carter, Reagan, and Bush. In addition to the FOIA exemptions of national security materials and discovery — immune documents, my suggested exemption of certain documents of NSC officials holding separate positions, such as in the Office of the President or the Office of the Vice President, see supra Part II, provides further assurance that subjecting the NSC to the requirements of FOIA and the Federal Records Act will not intrude impermissibly into the President's interactions with his closest advisors. Under the holding I recommend, the President would be perfectly free to have FOIA — exempt interactions with his Assistant for National Security Affairs. Indeed, the Office of Legal Counsel of the Department of Justice concluded in 1978 that subjecting the NSC to FOIA would not unconstitutionally intrude upon the President or the NSC: [D]ue to the nature of the work of the NSC and its staff it is clear that valid exemptions are available for the vast bulk of the material which constitutes NSC records. . . .

We have also considered whether NSC could raise a valid constitutional claim to general immunity from the FOIA, and we believe this possibility is very weak. Certain records of the NSC could, if necessary, be protected by a claim of executive privilege, but such a claim could not successfully be invoked to preclude Congress from opening to public view some NSC administrative records and other nonsensitive records to which the claim could not reasonably attach. Nor could it be shown on evidence now available that the Act's impact on NSC is so onerous that its ability to function in support of the President will be impaired.

2 Op. Off. Legal Counsel at 205 n. 15, withdrawn, Memorandum from Walter Dellinger to Alan J. Kreczko (Sept. 20, 1993).

Presumably in recognition of Congress's authority to preserve documents of the United States Government, including the executive branch, the Government does not assert that the Presidential Records Act represents an unconstitutional intrusion upon the President's exercise of his constitutional duties. Consequently, the Government's challenge to application of FOIA and the Federal Records Act to the NSC must hinge upon the differences between the burdens imposed by the Presidential Records Act on the one hand and the Federal Records Act and FOIA on the other. In my view, the differences are insufficient to sustain the Government's constitutional claim.

First, in light of Congress's broad authority over executive branch documents, see Nixon, 433 U.S. at 445, little rests on the Federal Records Act's more demanding procedures to prevent destruction or unauthorized taking of documents, see 44 U.S.C. Section(s) 3303, 3303a. Leaving for another day the possibility that executive privilege might entitle the President to keep or destroy particular documents, I think the Government has failed to offer any persuasive reason to hold that Congress is without power to subject nonsensitive NSC documents to the Federal Records Act.

Second, the Government argues that although the Presidential Records Act makes records available under FOIA procedures, it gives the President the power to specify a period of time, not to exceed twelve years, during which the materials will not be available, see 44 U.S.C. § 2204(a), thereby allowing the President while in office to avoid the supposedly intrusive effects of FOIA and the Federal Records Act. The risk of serious intrusion, however, is slight in view of existing FOIA exemptions and the President's ability to have non-NSC interactions with his Assistant for National Security Affairs and other NSC officials who hold separate, purely advisory, non-NSC positions. Furthermore, the timing differences between the Presidential Records Act and the Federal Records Act must be viewed together with other differences that make the former more burdensome than the latter in certain respects. In particular, under the Presidential Records Act, certain materials that are altogether exempt from FOIA — specifically, memoranda or letters not subject to discovery in litigation — are available under the Presidential Records Act using FOIA procedures. See 5 U.S.C. Section(s) 552(b)(5); 44 U.S.C. Section(s) 2204(c)(1).

Finally, the differences in the statutes' provisions for judicial review cannot sustain the Government's constitutional claim. Although judicial review is not available for compliance with the requirements of the Presidential Records Act as it is under the Federal Records Act, see Armstrong v. Bush, 924 F.2d 282, 297 (D.C. Cir. 1991) (Armstrong I), judicial review of presidential guidelines describing which materials are presidential records is available even under the Presidential Records Act, see Armstrong II, 1 F.3d at 1292-94. The Government has offered no convincing rationale for holding unconstitutional the application of the judicial review provisions of FOIA and the Federal Records Act to the NSC — as opposed to other EOP units that advise and assist the President in addition to exercising substantial independent authority, or as opposed to other executive agencies involved in sensitive foreign affairs issues yet subject to FOIA, such as the Department of State and the Central Intelligence Agency.

IV.

I would thus conclude that the NSC is an agency for purposes of FOIA and the Federal Records Act and that the Constitution presents no bar to subjecting the NSC to these statutes. I dissent.