[49] MacKINNON, Circuit Judge, concurring in part and dissenting in part:

I concur in the foregoing opinion insofar as it reverses the declaration of the district court requiring defendants to prepare an Environmental Impact Statement (EIS) with each annual request for appropriations to operate the National Wildlife Refuge System (NWRS). In my opinion such requirement would be wholly unreasonable in that it would result in an interpretation of the NEPA never intended by Congress. The court's rejection of the Sierra Club's position has my concurrence, but because the opinion has attempted to rely on a flexible "rule of reason" approach, rather than heeding the straight-forward words of NEPA, its holding in my opinion does not go far enough in rejecting any EIS requirement for annual appropriation requests.

The court's opinion holds that a "rule of reason" must be applied limiting the language of the regulation. It bases this conclusion on the plain meaning of CEQ regulation 40 C.F.R. § 1500.5(a) which states that an "action" subject to the EIS requirement includes "recommendations or favorable reports relating to legislation including requests for appropriations" (emphasis added) and points out that if the contentions of appellee were upheld they would mandate the absurd result that all requests for appropriations would require EISs. The reasonable limitation so imposed is that routine requests for appropriations may be distinguished from intensive "new looks" at a program's budget, it being reasonable to require EISs of the latter but not of the former. Actually the only issue before us is the court's holding with respect to the annual appropriation request for the NWRS and so there is no necessity for any dictum as to the ultimate limits of the rule.

I agree that it would be unreasonable to require EISs for every major budget request. In addition to the unreasonableness of such construction of the statute, the intent of Congress and the uniform precedents from generations of legislative proceedings clearly indicate that Congress has never considered "requests for appropriations" to be either "proposals" or "proposals for legislation or major federal action." In my opinion the entire budget request process for the NWRS involved here is outside the EIS requirement of NEPA.

I

Standing

As a preliminary issue, I concur in that part of the court's opinion that directs the lower court on remand to consider the issue of whether or not the Sierra Club has standing. The lower court granted summary judgment for the appellees and in so doing must perforce have determined that they did have standing to bring this suit. The Sierra Club, however, submitted no affidavits indicating either that any of its members or its fellow appellees' members in fact used the Wildlife Reserves in question, or that their enjoyment of these areas would be in any way affected by the NWRS budget proposals. An organization which does not prove injury to itself or its members has no standing to challenge harm to the environment, Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Davis, Administrative Law in the Seventies § 22.19 (1976). Here the complaint of the Sierra Club alleges injury, but these allegations have been denied and are not supported by any evidence of record. Allegations on which standing is premised must be both "true and capable of proof at trial," United States v. SCRAP, 412 U.S. 669, 688-689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (SCRAP I). In this case, where plaintiff's standing allegations are controverted, and particularly in light of the summary disposition effected by the lower court, it is necessary that the facts upon which standing is premised be not only alleged but demonstrated, Northern Great Plains Coal Case, Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856, 869-870 n. 20 (1975), rev'd on other grounds, 427 U.S. 390, 95 S.Ct. 2718, 49 L.Ed.2d 576 (1976). In this record there is no evidence at all that appellees' allegations are "capable of proof." As the opinion of Judge Leventhal states, there seems little doubt that the Sierra Club can offer proof that some of its members make use of the Wildlife Refuges involved in this case, but appellees must offer proof of that fact, not merely allegations.

However, even though appellees do prove that some of their members use the Wildlife Refuges, they still must clear what is to my mind a much more difficult hurdle before they can be held to have demonstrated their standing. Appellants strenuously argue that there is no evidence that any of the budget requests submitted by the Department of the Interior and the OMB will result in the curtailment of any identifiable refuge or refuge activity. It may well be true that the staff reductions proposed will not in fact impair the quality of the Wildlife Reserves or their availability. Indeed, one affiant testified that such lands as wilderness areas are best managed by not being managed at all. This argument is not devoid of logic. Appellees must demonstrate that some denial of service to them, i.e., the injury which allegedly gives them standing, "in fact results from" the challenged budget requests, Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); see also Linda R.S. v. Richard D., 410 U.S. 614, 617-18, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); King's County Economic Commercial Development Ass'n v. Hardin, 476 F.2d 478 (9th Cir. 1973). The seemingly self-evident truth that a decline in funding will result in the decline of the quality of the service provided is overly facile when dealing with areas whose chief value in the environmental scheme lies in being preserved as nature would leave them. Moreover, unless appellees can demonstrate a causal connection between the proposed appropriation and some identifiable decline in one of its member's use of a wildlife refuge, the Sierra Club is in effect asking this court to litigate not as to a particular injury, but, assuming any injury at all exists, as to a general injury suffered by the public at large, which courts may not be empowered to rectify, Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215-227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). On remand, the District Court must consider and require proof concerning these questions relating to standing.

II

Budget Requests as "Proposals"?

The appellees attempt to bring budget requests under the statutory language requiring EISs for "proposals for legislation or other major federal actions." Since it is my opinion that such requests are not "proposals," and even if "proposals," are not proposals for either legislation or major federal action, I find no merit whatsoever in the Sierra Club's argument.

Appropriation requests by departmental units cannot be considered "proposals" until they have achieved at least that degree of finality only attained when the President has formally determined to transmit the departmental request to Congress as part of his budget. See Northern Great Plains Coal Case, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) wherein the Supreme Court struck down a decision of the Court of Appeals which held that NEPA empowered a court to require the preparation of an impact statement to begin at some point prior to the formal recommendation or report on a proposal. 427 U.S. at 404, 96 S.Ct. 2718. In finding such action outside the intent of the statute the Court stated:

The statute clearly states when an impact statement is required [that is] under the first sentence of § 102(2)(C) the moment at which an agency must have a final statement ready "is the time at which it makes a recommendation or report on a proposal for federal action." Aberdeen Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, [ 95 S.Ct. 2336, 2356, 45 L.Ed.2d 191] (1975) (SCRAP II) (emphasis in original).

427 U.S. at 405-406, 96 S.Ct. at 2728. And further:

A court has no authority to depart from the statutory language and, by a balancing of court-devised factors, determine a point during the germination process of a potential proposal at which an impact statement should be prepared.

427 U.S. at 406, 96 S.Ct. at 2728 (emphasis in original).

It is clear that in the budget-making process there is no final proposal until the President includes the item in his budget to Congress. Not only are the suggestions made by OMB and the various agencies confidential until the President transmits them to Congress as part of his formal budget, but moreover, the statutory and constitutional scheme governing the budget-making process make it clear that the task of submitting a proposed budget is solely a presidential responsibility. It is not until the President himself has acted that any budget request has been proposed. The requests for supply that are forwarded through the various agencies and the OMB for final presidential approval are purely pre-decisional and under the statute do not constitute proposals which require filing an EIS, cf. Aberdeen Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320-21, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975) (SCRAP II). To a certain extent, it would make as much sense to require cabinet ministers to submit EISs on suggestions made at confidential cabinet meetings as it would to require EISs of the OMB — merely a unit in the Executive Office of the President in this case. NEPA was never intended to apply to incipient requests.

III

Budget Requests as "Proposals for Legislation"?

Even when the President has in fact transmitted his budget to Congress, assuming that such transmittal does indeed involve a "proposal," such proposals do not, to my mind constitute "proposals for legislation or major federal action" within the intendment of Congress. NEPA provides:

The Congress authorizes and directs that, to the fullest extent possible: . . .

(2) all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, United States Code, and shall accompany the proposal through the existing agency review processes . . .

42 U.S.C. § 4332(2)(C) (emphasis added).

The appellees have consistently contended throughout this litigation that the annual appropriation requests to finance the National Wildlife Refuge System are proposals by federal agencies (1) "for legislation or other major federal actions" significantly affecting the environment. Appellees include in this phase of their argument the contention that an EIS is required whenever the NWRS in any given year (1) does not initiate a request, as they had in the past, for appropriations to purchase additional lands for refuge," and whenever (2) a request is submitted that involves a reduction or alteration of the use of appropriations.

The rationale underlying these arguments, so far as the contention that these acts might constitute "legislation" is concerned, is that all functions of the agency have a vested right, which can be enforced by third parties, naturally and routinely to continue to receive the largest sums ever appropriated for a given purpose; and any change — even that of not continuing to expand the program by the purchase of new refuge areas at the same rate of increase as in the past — amounts to a change in the law, i.e., to "legislation." In my view such a contention is completely unsupportable either as legal doctrine or as an interpretation of congressional intent. Judge Leventhal has referred to the absurd consequences it would entail and I agree with that conclusion.

Apart from the patent absurdity of the result suggested by appellee, I also find their claim in this respect to be contrary to the meaning that Congress has traditionally intended when it refers to "legislation." This conclusion is supported by the precedents in Congress that evidence the distinction in the mind of Congress, as to what does and what does not constitute legislation.

Traditionally, Congress has distinguished between "legislation" and an "appropriation." The congressional practice in this respect is set forth in L. Deschler's Procedure (1974):

§ 7. An item contained in a general appropriation bill must be authorized by law. Statutory authority for the appropriation must exist. . . . 119 Cong. Rec. p. ___, 93d Cong., 1st Sess., June 5, 1973 [H.R. 8619].

Id. p. 266 (emphasis added). It is the law authorizing appropriations that Congress refers to as "legislation," not the subsequently resulting appropriations. All appropriations must first be authorized by laws which emanate from the select committee having jurisdiction of that function of government, not from the Appropriations Committee. This distinction in meaning is pointedly set forth in the House Rule prohibiting the inclusion of legislation in appropriation bills:

§ 1.1 The prohibition against inclusion of legislation in general appropriation bills is provided for by House rule. It states: "Nor shall any provision in any such bill or amendment thereto changing existing law be in order, except such as being germane to the subject matter of the bill shall retrench expenditures. . ." (Clause 2 Rule XXI.)

§ 1.2 Language in an appropriation bill changing existing law is legislation and not in order. 105 Cong.Rec. 12125, 86th Cong. 1st Sess., June 29, 1959 [H.R. 7978].

L. Deschler's Procedure, p. 295 (emphasis added).

While this rule is limited to general appropriation bills, the italicized passages clearly indicates that when Congress refers to "legislation" it means "changing existing law."

In the same vein, legislation is defined as "the function of making rules . . ." Webster's Third New International Dictionary 1291 (3d ed. 1961) (emphasis added). The supply of a sum of money is not the making of a rule. Thus congressional and common English usage make it clear that the furnishing of money for previously authorized purposes is not "legislation." The congressional precedents that support this interpretation are legion. However some courts may have interpreted "legislation," it is the intent of Congress that controls. And in my view when Congress in the Environmental Protection Act referred to "legislation," with respect to legislation in Congress, it intended thereby to convey the same meaning as Congress customarily gives to the term when used in its own proceedings.

The construction of the Act here in question is controlled by what Congress intended and here as elsewhere Congress distinguished between "legislation" and "appropriations." For example, Congress also very pointedly makes the same distinction in the criminal code between "legislation or appropriations," 18 U.S.C. § 1913.

Congress also distinguishes between "legislation" and "appropriations" in 22 U.S.C. § 2394(c)

. . . any committee of the Congress charged with considering legislation, appropriations or expenditures under this chapter, has delivered . . . (Emphasis added.)

In addition 42 U.S.C. § 2996e(c)(2)(B) refers to communications

in connection with legislation or appropriations directly affecting the activities of the Corporation. (Emphasis added.)

Some courts have also noted the distinction. Justice Harlan in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) stated:

Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government.

360 U.S. at 111-12, 79 S.Ct. at 1085 (emphasis added).

This court in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973) stated:

Congressional control over appropriations and legislation is an excellent guarantee that the executive will not lightly reject a congressional request for information, for it is well aware that such a rejection increases the chance of getting either no legislation or undesired legislation.

159 U.S.App.D.C. at 66, 487 F.2d at 778 (emphasis added), quoting from Bishop, The Executive's Right of Privacy: An Unresolved Constitutional Question, 66 Yale L.J. 477, 486 (1957).

In Schneider v. Lansdale, 191 Md. 317, 61 A.2d 671 (1948) the court noted that the circuit court had based its decision on the

broad general proposition that the making of appropriations is a legislative function. The issue is much more narrow. It is whether the words "enact legislation" as used in Article XIA, Sec. 3 of the Constitution embrace every exercise of legislative power, in the broadest sense of that term, and specifically such matters as the making of budgets and the appropriation of money for county expenses . . . which may be, at least in part, legislative functions.

61 A.2d at 673-74. The court held that the phrase "enact legislation" in the Maryland Constitution did not encompass the making of budgets and the appropriation of money for county expenses.

The Supreme Court of Arizona has also ruled similarly. In a case where the State Auditor contended that a general appropriation bill unconstitutionally violated the provision of the state's constitution restricting each act to one subject, the court held:

The general appropriation bill is not in the true sense of the term "legislation"; it is, as the language implies, merely a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning.

Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666, 669 (1933) (emphasis added). The court continued at 24 P.2d 670:

If an act which makes appropriations to the various departments of the state contains, in addition to appropriations, legislation of such a nature that its subject must be expressed in the title, this alone would immediately suggest that such legislation could not stand. (Emphasis added.)

The court sustained the auditor's position and denied the writ. This distinction between appropriations and legislation was also recognized in Carr v. Frohmiller, 47 Ariz. 430, 56 P.2d 644 (1938), but a different result ensued because the bill did not contain more than one subject. This same distinction has been universally recognized by the parliamentary decisions in Congress.

All precedents in Congress, which in this respect go back as far as 1842, 4 Hinds' Precedents § 3811 (1907) (hereafter "Hinds'"), make a distinction between "legislation" and the "appropriation" of money by Congress and prohibit the change of any existing laws (legislation) in any general appropriation bill. 4 Hinds' § 381 (1907), §§ 3812, 3813. The enactment of positive law where none exists is construed as "changing existing law" within the rule. Id., §§ 3812, 3813, and thus although the initial legislation authorizing a program in need of supply may be "legislation," subsequent appropriations are not. For the lengthy list of congressional precedents involving decisions as to what constitutes legislation, see 9 Cannon's Precedents, Index, pp. 190-91(72) (hereafter "Cannon's").

Further support for the position that the intent of Congress was, and is, that "legislation" be restricted to those instances where there has been a "change of law" is found in the doctrine that limitations upon appropriations are not considered to constitute legislation. 7 Cannon's § 1710. Thus, for example, an amendment that proposes to defer disbursements from an appropriation until a departmental regulation has been enforced does not constitute "legislation," as it is a limitation on an appropriation bill. Id., § 1581. Even when significant interests and policies are affected by such limitations they are still not considered to be "legislation". For instance, Hinds' in § 3987 reports a ruling that it was in order, by a limitation on an appropriation bill, to withhold the appropriations from a designated object even though a contractual obligation of the United States for ocean mail service between the United States and foreign ports may thereby be left unsatisfied. It has also been ruled that a provision in an appropriation bill providing that no sums thereby appropriated for that year may be expended for a reformatory within a radius of ten miles of Mt. Vernon, except the one then located at Occoquan, Virginia, merely amounted to a limitation and was in order in an appropriation bill. 7 Cannon's § 1710 (1935). None of these limitations changed the law, i.e., the statute authorizing the appropriation, hence they were not "legislation."

With respect to appellants' claim that a reduction in an appropriation from one year to another constitutes "legislation," there are a number of precedential decisions in Congress specifically holding to the contrary. It has been ruled that action by the House cutting down an appropriation below the amount authorized by law is not considered to be legislation. That decision was made by Congressman Tilson of Connecticut who in ruling stated:

"The reason for that rule of limitation is simply this: The House in Committee of the Whole has the right to refuse to appropriate for any object which it may deem improper, although the object may be authorized by law; and it has been contended, and on various occasions sustained by the Committee of the Whole, that if the committee has the right to refuse to appropriate anything for a particular purpose authorized by law it can appropriate for only a part of that purpose and prohibit the use of the money for the rest of the purpose authorized by law. That principle of limitation has been sustained so repeatedly that it may be regarded as a part of the parliamentary law of the Committee of the Whole."

7 Cannon's § 1710 (1935). The foregoing ruling relied upon a prior ruling by Congressman Dingley of Maine reported at 4 Hinds' § 3936, p. 632 (1907). Thus, retrenchment is not a change of existing law, i.e., it is not "legislation" as Congress uses that term.

Important restrictions on the expenditure of appropriated funds may be embodied in an appropriation bill without enacting "legislation." In considering a bill for the appropriation of funds for the Commission of Fine Arts which provided that no part of such sums shall be expended for traveling expenses, other than those incurred by members of the Commission for actual travel only going to and returning from Washington to attend meetings of the Commission, it was ruled that such provision did not constitute legislation. While the provision would prohibit the use of funds for a purpose authorized by law it was nevertheless construed to be a proper limitation and not legislation. The reasoning underlying this ruling is that a provision refusing to continue appropriations to the maximum extent authorized by law, and for the maximum purposes authorized by law, does not amount of legislation. Cannon's § 1656.

During the Sixty-Eighth Congress, existing law provided that investigations could be conducted upon the request of either House, or upon a concurrent resolution of both Houses. An amendment to an appropriation bill offered by Congressman Newton of Minnesota proposed that "no part of the appropriation . . . shall be expended for investigations . . . except those authorized and directed by the concurrent resolution of both Houses." The Chair upheld such limitation in ruling "that Congress may appropriate for one object authorized by law and refuse to appropriate for another object authorized by law," i. e., without such selective appropriation being considered by Congress to constitute legislation. Cannon's § 1595.

The rule prohibiting legislation in appropriation bills is also construed strictly in favor of the point of order. Cannon's § 1707. This permits any single Congressman easily to enforce the rule merely by raising a point of order.

This long history, indicating that Congress, in its uniform practices, does not consider that the appropriation of money constitutes "legislation," convinces me that when it referred to "legislation" in the Environmental Protection Act it did not intend "legislation" to include requests for authorized appropriations, when the sums requested do not exceed or vary from the amount Congress has fixed in its statutory authorization. It is also evident that the foregoing precedents demonstrate that Congress did not intend to include the rise and fall of annual appropriations for authorized purposes, and within authorized limits, as being within the ambit of "legislation."

While appellees cite the Guidelines of the Council on Environmental Quality, 38 Fed.Reg. 20550, 40 C.F.R. § 1500 et seq., as expert opinion that Congress in NEPA intended to include budget requests within the scope of the EIS requirement applicable to "proposals for legislation . . . or major federal action," it is my view that the language of these Guidelines is not inconsistent with interpreting the EIS requirement to apply only to legislation authorizing appropriations, i.e., to alterations in the existing law, not merely annual budget requests. This conclusion can be reached by comparing the Guidelines' use of "proposals for legislation" and their reference to "authorizations." In any event, the CEQ Guidelines were obviously basing the regulations on the terminology of the statute and — for the reasons hereinbefore outlined — this language does not equate requests for appropriations with proposals for legislation.

IV

Budget Requests as Proposals for Major Federal Action?

Appellees need not persuade that budget requests are "proposals for legislation" in order successfully to contend that such requests should be subject to the EIS requirement, if it can demonstrate that these requests should be considered as "proposals for major federal action." Common sense, however, mandates giving short shrift to this leg of appellees' argument. The NWRS in this case has not proposed any change in budget appropriations, but rather has merely initiated a routine, continuing request for funding. When such requests are made for the first time, thus commencing a new program, or conversely where a decision is made to request no funding at all, thus terminating a program, perhaps such action could plausibly be considered "major"; but I cannot agree that a routine, annual budget request within the existing legislative authorization, differing in no major degree from those submitted in the past, can credibly be deemed "a proposal for major federal action." Congress would never consider such action as "major," and it is the intendment of Congress that is controlling. The continuation of annual funding — naturally reflecting, in the size of the request, the vicissitudes of economics and elections — works no change in the law. Far from being an example of "major federal action," it might more properly be considered the result of "federal inertia." As has been shown above in refuting the argument that a budget request is a proposal for legislation, supply has traditionally not been deemed to involve a change in the law. Although the CEQ's regulation, 40 C.F.R. § 1500.5(a), stating that "action" includes "requests for appropriations" is entitled to considerable deference, I find no indication whatsoever that Congress meant to elevate normal annual supply concerns to the dignity of "proposals for . . . major federal actions." Accordingly, I disagree with the Council's interpretation of the scope of such term and find EIS requirements inapplicable to the annual budget requests of the NWRS which are the subject of this appeal.

V

Requiring an EIS on the Budget Requests and the Traditional Confidentiality of Such Requests

31 U.S.C. § 24 provides that "requests for . . . appropriations which are submitted to the Office of Management and Budget by the head of any department or establishment shall be prepared and submitted as the President may determine in accordance with the provisions of section 11 of this title . . ." This generally calls for various agencies submitting their requests to the President through the OMB. The President reviews all these requests, makes his own decision thereon and then consolidates them in the form of an annual budget which he transmits to Congress. In this connection, pursuant to the authority conferred upon him by the statute that such requests "be prepared and submitted as the President may determine," (emphasis added) ( Id.), the President has determined, inter alia:

3. Restrictions on disclosure of agency estimates. All budget estimates and supporting materials submitted to the Bureau of the Budget are privileged communications. Their confidential nature must be maintained, since they are the basic data and worksheets in the process by which the President resolves budget problems and arrives at conclusions with respect to his recommendations to the Congress. The head of each agency is responsible for preventing disclosure of information contained in such estimates and materials except on request in formal appropriation hearings and when requested by Members of the Congress in connection with their consideration of the budget after its transmittal.

Circular A-10, revised Jan. 18, 1964, Executive Office of the President, Bureau of the Budget, App. 225. The confidential status of such requests is a matter of long standing dating at least from the 1930's, App. 242, 243, and even after the President has considered budget requests from the various agencies and decided upon the budget he will submit to Congress, the nature and amounts of the appropriations he has determined to request are confidential and are not publicly released until the budget is actually transmitted to Congress. App. 231.

This confidentiality of budget requests until they are formally submitted to Congress by the President is irreconcilable with the appellees' position that these requests should be the subject of Environmental Impact Statements. Congress has been aware of the confidential nature of budget requests, and despite extensive recent legislation concerning the budget process has at no time explicitly suggested that EISs should be filed covering such requests. Perhaps even more significantly, Congress when it so intended has specifically removed the confidentiality of the budget requests submitted by certain agencies. The Consumer Product Safety Commission and the Commodity Futures Trading Commission are examples of agencies whose budget requests have lost the protection of confidentiality. Congress, however, refrained from taking such legislative action with respect to either the Department of the Interior or the OMB.

Moreover, the amendments Congress enacted to the Freedom of Information Act, evince no intent to alter the confidential nature of the communications between the President and units within the Executive Office. The conference report on the 1974 amendments to the FOIA explicitly stated that the term "Executive Office of the President," from which disclosure could be required under the Act, "is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." It is quite true that, by statute, the OMB gives advice to the Congress as well as to the President, so some of its activities would fall outside of the above proviso in the conference committee report, but to the extent that "units" exist within OMB "whose sole function is to advise and assist the President," such activities could be within the proviso. In this connection, 5 C.F.R. § 1303.20(b) states that certain units of the OMB do indeed "solely advise and assist the President" and that among these units are those that provide advice and assistance with regard to "the formulation and preparation of the Federal budget." This regulation is entitled to deference. In light of the compelling evidence referred to above that Congress intended budget requests to remain confidential, I would not require an EIS to be submitted with the annual budget request of the NWRS.

VI

OMB and NEPA Obligations

In considering whether the Office of Management and Budget is "required to develop procedures to fulfill its [alleged] NEPA obligations in connection with the Budget process" concerning the National Wildlife Refuge Service, it is my view that the present regulations of the Department of the Interior and its "procedures" adequately comply with the requirements in that respect and therefore I dissent from the majority's holding that the OMB is required to take the action it commands.

Conclusion

In summary, I concur in the holding that the District Court committed error in rendering its declaratory ruling that each annual budget request for the National Wildlife Refuge Service must be accompanied by an Environmental Impact Statement, but I disagree with this court's conclusion that the Secretary of the Interior is under any legal obligation to prepare a programmatic environmental statement on the NWRS program. As the court's opinion points out, it would be absurd to construe the Environmental Protection Act and its implementing regulations to require an EIS with each annual budget request. In my view it is even more absurd — and equally contrary to the language of the statute — to construe the law and the regulation as requiring that the Agency is under any "obligation" to produce the half-way measure of a "programmatic" environmental statement. For the reasons set forth above, I do not feel that an EIS is ever required at the clearly pre-decisional stage at which the OMB or an agency submits a mere appropriation request which has yet to be formally incorporated into the budget transmitted to Congress by the President. I thus conclude that the OMB is not required to establish any new procedures in order to comply with NEPA.

* * * * * *

1500.5 Types of Actions covered by the Act

(1) Recommendations of favorable reports relating to legislation including requests for appropriations.

* * * * * *

1500.12 Legislative Actions

(a) * * * Agencies should prepare impact statements prior to submission of their legislative proposals to the Office of Management and Budget. In this regard, agencies should identify types of repetitive legislation requiring environmental impact statements (such as certain types of bills affecting transportation policy or annual construction authorizations.)

Responsibilities

A. The Assistant Secretary [of the Department of the Interior] — Program Policy * * *.

(4) Shall review and approve all bureau and office procedures for the preparation and utilization of environmental statements.

[SEC. 516.5] Determination of major Federal actions requiring environmental statements.

The following criteria are to be used in deciding whether a proposed action requires the preparation of an environmental statement:

A. Types of Federal actions to be considered include, but are not limited to:

(1) Recommendations or favorable reports to the Congress relating to legislation, including appropriations.

3.1 Statements on Individual Actions. * * it is the responsibility of the Regional Director to determine whether an environmental statement is necessary for individual actions * * *.

3.2 General (Generic or "Blanket") Statements. * * * it is the responsibility of the Associate Director Research and Environment to determine whether a general environmental statement should be prepared for a service program or program element * *.

* * * * * *

4.0 Scope and Procedures: NEPA directs Federal agencies * * * to include a detailed statement of environmental impacts in every recommendation or favorable report on, legislation or other major actions significantly affecting the quality of the human environment * * *.

* * * * * *

4.5 Statements on Individual Actions. Individual statements shall be prepared for individual actions which have significant impacts on the quality of the human environment, and which are not adequately covered in a general statement. Examples of actions on which statements should usually be prepared include but are not limited to:

* * * * * *

4.6.1 Administration Bills. On draft legislation prepared by the Service an environmental impact statement will be prepared.

. . . OMB also provides that during the legislative clearing process (when OMB solicits the opinions of one agency's substantive legislative proposals from other agencies) agencies must submit relevant and available EISs. (OMB Circular A-19, revised July 31, 1972, paragraph 7(d)(2) (App. 249) (App. 239-240). (Emphasis added.)