Full opinion text
MEMORANDUM OPINION CHARLES R. RICHEY, District Judge. TABLE OF CONTENTS INTRODUCTION.......................................................... 694 PROCEDURAL HISTORY................................................. 695 STATEMENT OF QUESTION PRESENTED............................... 696 FACTS ................................................................... 697 A. THE RECORDKEEPING STATUTES............................ 698 B. THE STRUCTURE OF THE NATIONAL SECURITY COUNCIL 699 DISCUSSION 699 I. THE “LAW OF THE CASE” DOCTRINÉ DOES NOT BAR THÉ COURT FROM DECIDING THE STATUS OF THE NSC BECAUSE THE ISSUE HAS NOT BEEN PREVIOUSLY DECIDED.......................... 699 II. THE COURT FINDS THAT THE NSC IS AN AGENCY BECAUSE THE NSC IS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH AND EXERCISES SUBSTANTIAL INDEPENDENT AUTHORITY SUCH THAT IT DOES NOT SOLELY RENDER ADVICE AND ASSISTANCE TO THE PRESIDENT ............................................... 700 A. The NSC Meets The First Prong Of The Agency Test Because It Is An Establishment In The Executive Branch That Has A Separate Staff And A Firm Structure................................................ 700 B. The NSC Meets The Second Prong Of The Agency Test Because It Exercises Substantial Independent Authority Through The Performance Of The Traditional Agency Tasks Of Rulemaking And Adjudication, And Because It Performs Many Functions Independently Of the President 701 1. The NSC Performs The Traditional Agency Functions Of Rulemaking And Adjudication ......................................... 701 2. The NSC Exercises Substantial Authority Independently Of The President In Key Policy Areas ................................ 702 III. THE COURT’S FINDING THAT THE NSC IS AN AGENCY FOLLOWS THIS CIRCUIT’S PRECEDENT...................................... 703 IV. IN FINDING THAT THE NSC IS AN AGENCY, SUBJECT TO THE FOIA, THE COURT HOLDS THAT THE NSC MUST MAINTAIN AND PRESERVE ITS RECORDS IN ACCORDANCE WITH THE FEDERAL RECORDS ACT, EXCEPT WHEN HIGH LEVEL OFFICIALS OF THE NSC ACT SOLELY TO ADVISE AND ASSIST THE PRESIDENT. IN THAT LIMITED CIRCUMSTANCE, THE PRA, RATHER THAN THE FRA SHALL APPLY................................................ 704 V. THE NSC HAS FAILED TO PROVIDE A REASONABLE EXPLANATION AS TO WHY IT HAS SUDDENLY DECLARED THAT IT IS NOT AN AGENCY........................................................ 706 VI. THE COURT’S FINDING THAT THE NSC IS AN AGENCY DOES NOT UNCONSTITUTIONALLY INTRUDE ON THE POWERS OF THE PRESIDENT, BECAUSE APPLYING THE FOIA TO THE NSC WOULD NOT CAUSE UNDUE DISCLOSURE OF SENSITIVE NATIONAL SECURITY DOCUMENTS....................................................... 706 CONCLUSION............................................................ 707 EXHIBIT A: PRESIDENT CLINTON’S MEMORANDUM A. MEMORANDUM OF PRESIDENT CLINTON ON “ACCESS TO NSC RECORDS” DATED MARCH 24, 1994 ............................ 708 EXHIBIT B: NATIONAL SECURITY COUNCIL MEMORANDA A. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON “INSTRUCTIONS ON PRESIDENTIAL STATUS OF THE NATIONAL SECURITY COUNCIL AND REVISED DISCLOSURE AND DISPOSITION POLICY” DATED MARCH 25, 1994 ........................................ 709 B. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON “RECORDKEEPING GUIDANCE” DATED MAY 8, 1993............................... 711 EXHIBIT C: GUIDELINES FOR COMPONENTS OF THE EXECUTIVE OFFICE OF THE PRESIDENT A. LETTER FROM JASON R. BARON, ATTORNEY FOR UNITED STATES DEPARTMENT OF JUSTICE, TO MICHAEL TANKERSLEY, ATTORNEY FOR PUBLIC CITIZEN LITIGATION GROUP 715 B. OFFICE OF ADMINISTRATION’S MEMORANDUM ON “DIRECTIVE ON RECORDS MANAGEMENT OF ELECTRONIC COMMUNICATIONS” ................................................ 715 C. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE’S MEMORANDUM ON “ELECTRONIC COMMUNICATIONS SYSTEMS” .......................................................... 728 D. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE’S MEMORANDUM ON “ELECTRONIC MAIL MODIFICATIONS”... 732 E. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE’S MEMORANDUM ON “MONITORING ELECTRONIC MAIL”...... 734 F. OFFICE OF SCIENCE AND TECHNOLOGY POLICY’S MEMORANDUM ON “ELECTRONIC COMMUNICATIONS SYSTEMS”....... 734 G. OFFICE OF MANAGEMENT AND BUDGET’S MEMORANDUM ON “NEW RECORDKEEPING GUIDANCE”......................... 738 H. OFFICE OF NATIONAL DRUG CONTROL POLICY’S MEMORANDUM ON “NEW RECORDKEEPING GUIDANCE”............... 739 I. COUNCIL ON ENVIRONMENTAL QUALITY’S MEMORANDUM ON “NEW RECORD-KEEPING DIRECTIVE ISSUED”........... 739 EXHIBIT D: PROPOSED REGULATIONS ISSUED BY THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.............................. 740 INTRODUCTION Despite a long history of acting as an “agency,” and after admitting it was an agency, and thus subject to the Federal Records Act in this litigation, and notwithstanding a long practice of processing records pursuant to the Freedom of Information Act, the President and the Executive Secretary of the National Security Council suddenly changed course in 1994 declaring that the National Security Council is not an agency and thus not subject to the Federal Records Act. (Copies of the declarations are attached hereto and made a part hereof as Exhibit A, Mem. of President Clinton on “Access to NSC Records” dated March 24, 1995, and Exhibit B, Mem. of William H. Itoh, National Security Council Executive Secretary, on “Instructions on Presidential Status of the National Security Council and Revised Disclosure and Disposition Policy” dated March 25,1994). In doing this on March 24 and 25, 1994, {See Exhibits A and B), the Defendants would have the Court ignore the facts that the National Security Council (“NSC”) performs rulemaking and adjudication and functions independently of the President in many areas. Moreover, the NSC has operated as an agency, subject to the Freedom of Information Act, which requires that it must maintain and preserve its records in accordance with the Federal Records Act. In particular, the Defendants contend that the NSC it not an agency, because its sole function is to advise and assist the President. The Court finds, however, that this contention is incorrect because the NSC performs traditional agency functions and operates independently of the President in many areas. Moreover, their contention that this decision will intrude on the exercise of Presidential powers and responsibilities is also wrong because Congress, in enacting the Freedom of Information Act (“FOIA”), specifically provided that material relating to national security shall not be disclosed. In this case, the Plaintiffs claim that the Defendants are barred from asserting that the NSC is not an agency, because the Defendants conceded that it is an agency in the two prior Court of Appeals’ opinions. See Armstrong v. Bush, 924 F.2d 282 (D.C.Cir.1991) ; Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.Cir.1993). In addition, the NSC has stated that: The NSC does ... acknowledge that documents received or created pursuant to the inter-agency process of the NSC are agency records for the purposes of the FOIA.... (Joint Statement of Facts ¶ 171 (December 8, 1992) ). The Plaintiffs also claim that the NSC is an agency because the NSC is an establishment in the Executive Branch that exercises authority independently of the President by performing adjudicatory and rulemaking functions and by performing duties in many key areas. Last, the Plaintiffs assert that a finding by the Court that the NSC is an agency does not raise any constitutional concerns because the FOIA exempts from disclosure documents that relate to sensitive national security matters. Upon a careful consideration of the facts of this case, the Court concludes that the NSC is an agency, subject to the FOIA, and that it must maintain and preserve its records in accordance with the Federal Records Act, except when high level officials of the NSC are acting solely in their capacity to advise and assist the President. Consequently, the Court shall declare the NSC’s recently changed guidelines, classifying its records as “Presidential” Records, contrary to history, past practice and the law. (A copy of the old guidelines that were revoked by the March 25,1994 declaration is attached hereto and made a part hereof as Exhibit B). Moreover, the Archivist shall be directed to perform her obligations with respect to NSC records under the Federal Records Act and to do so without any further delay as this ease is important to the nation and the very credibility of this and future administrations. PROCEDURAL HISTORY This case was filed in 1989 at the close of President Reagan’s Administration by journalist Scott Armstrong, the National Security Archive and several other individuals and organizations claiming, inter alia, that the President, the Archivist, and the NSC’s recordkeeping practices failed to comply with the Federal Records Act and the Presidential Records Act. That same year, this Court held as a preliminary matter that the President’s and the NSC’s compliance with the Federal Records Act and the Presidential Records Act was judicially reviewable. Armstrong v. Bush, 721 F.Supp. 343 (D.D.C.1989). However, since there were some unresolved factual issues with respect to the Defendants’ compliance with those recordkeeping statutes, this Court denied the Defendants’ Motion to Dismiss the Complaint, or in the alternative for Summary Judgment, and allowed the parties to proceed with discovery. Armstrong v. Bush, 721 F.Supp. 343 (D.D.C.1989). At that stage in the litigation, the Court did not address the substantive question of whether the NSC’s recordkeeping guidelines appropriately distinguished between Federal and Presidential Records. On appeal, the Court of Appeals for this Circuit affirmed this Court’s ruling by agreeing that the adequacy of the NSC’s record-keeping guidelines was judicially reviewable pursuant to the Federal Records Act. Armstrong v. Bush, 924 F.2d 282, 291-93 (D.C.Cir.1991). However, the Court of Appeals remanded for a further development of the record to determine whether the NSC’s electronic recordkeeping guidelines were consistent with law. Id. This Court on remand ruled on January 6, 1993, inter alia, that the Executive Office of the President’s management of their electronic records violated the law because not all the pertinent information from the electronic records was being saved on hard copy or paper. Armstrong v. Executive Office of the President, 810 F.Supp. 335, 341-42 (D.D.C.1993). Thereafter, another appeal was taken in which the Court of Appeals for this Circuit held that the NSC’s guidelines that initially categorize its records as either a Federal Record or a Presidential Record were judicially reviewable and, accordingly, remanded to this Court to determine whether the NSC’s recordkeeping guidelines inappropriately classify some documents as Presidential Records rather than Federal Records. Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278, 1296 (D.C.Cir.1993). After the Court of Appeals’ remand, President Clinton stated in a March 24, 1994 memorandum to Anthony Lake and William Itoh that he was advised of this case and the Government’s legal position herein. (Exhibit A). Further, President Clinton’s memorandum directed, inter alia, that the NSC: Establish procedures for access by the public to appropriate NSC records of the current Administration. However, the next day, on March 25,1994, NSC Executive Secretary William Itoh issued a written memorandum, which was not wholly consistent with what the President himself stated above. (Joint Statement of Facts ¶ 53; Exhibit B). Mr. Itoh stated that the NSC is not an “agency” and that all of its records are Presidential Records, and thus not subject to the FOIA. Id. Accordingly, the Defendants’ memorandum asserts that the NSC may classify all of its records solely under the Presidential Records Act. Id. STATEMENT OF THE QUESTION PRESENTED Whether a government entity, namely the NSC, which has historically treated itself as an agency, and has engaged in a multitude of functions independently of “advising and assisting the President,” just like other components of the Executive Office of the President, which admittedly are “agencies” subject to the Freedom of Information Act and the Federal Records Act, can unilaterally after many years of treating itself as an agency, suddenly change its designation without offering a reasoned explanation for the sudden change, and thus declare that it is no longer an “agency?” If the NSC’s declaration that it is not an “agency” is true, then it may classify all of its records solely as Presidential Records. On the other hand, if the Court finds that the NSC is an “agency,” the NSC’s documents would be subject to the FOIA and it would have to maintain and preserve its records in accordance with the Federal Records Act. Accordingly, the Archivist would be required to fulfill her duties as prescribed by the Federal Records Act. This ease is not a political question but one of statutory construction, and it is one requiring deference to a longstanding practice of an agency. It involves, inter alia, a sudden change in position that is not only contrary to law but without any reasoned explanation for the change. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1971), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971). This Judge has the highest regard for the other two coordinate Branches of the Government and would not knowingly intrude on their power and the exercise of their constitutional duty. The same is true of this Court’s respect for the institution of the Presidency including our current Commander-in-Chief and his predecessors. However, this is a country of laws and not of persons and no one including the President is above the law as set forth in the Constitution and laws of the States. This is also why we have independent Courts with the power of Judicial Review going back to Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803). To settle the matter in accordance with the Court of Appeals’ remand, the parties filed the instant Cross-Motions to Dismiss, or, in the Alternative, for Summary Judgment, Oppositions, and Replies thereto, which are now before the Court. In light of the papers filed by the parties, the underlying law, the entire record herein, and oral argument, the Court shall grant the Plaintiffs’ Motion for Summary Judgment, and deny the Defendants’ Motion. FACTS Since the early 1980’s, the NSC has used electronic mail systems to manage information. (Joint Statement of Facts at ¶ 42). AH NSC staff members have access to these systems, which aUow users electronically to transmit maH, generate calendars of appointments and meetings, create and edit memoranda, and transfer files and documents. These electronic communications systems contain organizational, functional, poHcy, procedural, and operational information regarding the NSC. When employing these electronic systems, NSC staff members are not instructed to distinguish between “Presidential” and “Federal” Records. (Responses of NSC to Plaintiffs’ Requests for Admissions, RFA 1-11 at 61 (1994)). Copies of the information from these electronic systems are regularly copied onto “backup tapes,” which contain information created during the Reagan, Bush, and Clinton administrations. (See Joint Statement of Facts ¶46 (October 3, 1994)). Currently, the “backup tapes” are being retained by the Defendants in accordance with previous Court-ordered injunctions. According to the NSC, since it is not an “agency” as defined in the Federal Records Act or the FOIA, the records created on these electronic systems are not agency records that would be subject to the Federal Records Act. (Exhibit B). Notwithstanding the NSC’s current declaration that it is not an agency, in previous pleadings filed with the Court, the NSC has stated that it performs the dual functions of advising and assisting the President, and performs independent functions. (Joint Statement of Facts ¶ 171 (December 8,1992); see Exhibit B). Moreover, the Defendants have previously acknowledged that “documents received or created pursuant to the inter-agency process of the NSC are agency records for the purposes of the FOIA____” (Joint Statement of Facts ¶ 172 (December 8, 1992) (citing Armstrong v. Bush, 924 F.2d 282, 286 n. 2 (D.C.Cir.1991))). A. The Recordkeeping Statutes Prior to the NSC’s March 25, 1994 declaration that it is not an agency, the NSC’s recordkeeping guidelines distinguished between Federal and Presidential Records. E.g., Armstrong v. Bush, 924 F.2d 282 (D.C.Cir.1991). The Federal Records Act (“FRA”) governs a federal agency’s duties with respect to managing Federal Records. According to the FRA, the head of each agency is to: [MJake and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities. 44 U.S.C. § 3101. Moreover, agency heads are to “establish and maintain an active, continuing program for ... economical and efficient [records] management,” and “establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist.” Id. at 3102, 3105. Records that are subject to the Federal Records Act are immediately subject to the FOIA. See 5 U.S.C. § 552. Further, recordkeeping guidelines promulgated under the FRA are subject to judicial review. Armstrong v. Bush, 924 F.2d 282, 292-92 (D.C.Cir.1991). To dispose of a Federal Record, an agency must first garner the approval of the Archivist. The Archivist is vested with the duty to determine if a record is suitable for destruction by deciding if the record has “sufficient administrative, legal, research, or other value to warrant [its] continued preservation.” 44 U.S.C. § 3303a. Consequently, documents that qualify as a Federal Record are subject to specific guidelines and procedures in their management and disposal. In contrast to Federal Records, the President has greater control over documents generated during his term of office that qualify as a Presidential record. See 44 U.S.C. § 2204. Under the Presidential Records Act (“PRA”): [T]he President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.... 44 U.S.C. § 2203 (emphasis added). The PRA further provides that the President may only dispose of his Presidential Records after he “obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential Records,” and the Archivist consults with Senate and House Committees “with respect to any proposed disposal of Presidential Records.” Id. In addition, after the President leaves office, the PRA provides that: [T]he Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act.... [Moreover,] [t]he Archivist is authorized to dispose of such Presidential records which he has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code. Id. In addition, before the conclusion of his term of office, the President is to specify a duration, “not to exceed twelve years, for which access shall be restricted with respect to information, in a Presidential Record.” The restriction on access to Presidential Record material applies to certain categories of information contained in a Presidential Record, such as personnel and medical files, the disclosure of which would clearly constitute an unwarranted invasion of personal privacy, or information involving confidential advice between the President and his advisors, etc. 44 U.S.C. § 2204. B. The Structure Of The National Security Council The National Security Act of 1947 established the NSC. 50 U.S.C. § 402. Pursuant to the Reorganization Plan No. 4 of 1949, the NSC was transferred to the Executive Office of the President (“EOP”). As an entity within the EOP, the NSC has a separate budget and staff, and a firm structure. From fiscal years 1983 to 1995, the NSC’s budget has ranged from approximately $4,000,000 to $7,000,000. (See Budget of the United States Government (1985); Mem. from J. Robert Manzanares, Director of Administration, to Robert S. Dotson, Chief, Air Force Branch of National Security Division Office of Management and Budget, entitled “FY 1995 Submission” (1993)). In fact, last week President Clinton transmitted his budget to Congress requesting $6,648,000 for the operation of the NSC. (Fiscal Year 1996 Budget Submission (February, 1995)). Pursuant to the National Security Act of 1947, the NSC has its own staff, consisting of approximately one hundred fifty individuals drawn from various executive departments and agencies, and from outside the government. (Defs.’ Resp. and Supplemental Resp. to Inter. No. 2). Internal documents created before March, 1994, state that the NSC staff acts as members of an agency. (Letter from Stephen J. Rademaker, NSC Deputy Legal Adviser, to Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice (August 26, 1992); NSC Mem. on “United States of America v. Caspar Weinberger” (1992)). With respect to its structure, the NSC, pursuant to various Presidential Directives, is divided into a three-tiered system of committees or groups consisting of: (1) a principals’ committee; (2) a deputies’ committee; and (3) interagency working groups. Various statutes, regulations, Executive Orders and Directives prescribe the functions that the NSC performs independently of the President, such as rulemaking and adjudication, and its role in specific policy areas. E.g., National Security Act of 1947 §§ 102, et seq.; Exec. Order No. 12,333, 46 Fed.Reg. 59942 (1981); National Security Decision Directive 65 (1982). DISCUSSION This case comes before the Court on Cross-Motions for Summary Judgment. Summary judgment shall be rendered upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.Cir.1988). For the reasons set forth below, the Court shall grant Summary Judgment in favor of the Plaintiffs. I. THE “LAW OF THE CASE” DOCTRINE DOES NOT BAR THE COURT FROM DECIDING THE STATUS OF THE NSC BECAUSE THE ISSUE HAS NOT BEEN PREVIOUSLY DECIDED. Before the Court can address the gravamen of this dispute, to wit, whether the NSC is an agency, it must first respond to the Plaintiffs’ contention that since the NSC has not previously challenged the two prior Court of Appeals’ cases allegedly acknowledging that the NSC is an agency, this Court is now barred from deciding the issue under the “law of the ease” doctrine. The “law of the ease” doctrine states that: [A] legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case ... and the parties are deemed to have waived the right to challenge that decision at a later time. Palmer v. Kelly, 17 F.3d 1490, 1494 (D.C.Cir.1994); Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987) (internal citation omitted). However, if an issue has not previously been decided, the “law of the ease” doctrine does not apply. Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1149 n. 18, 59 L.Ed.2d 358 (1979) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895)); see Friends of the Earth v. Reilly, 966 F.2d 690, 696 n. 7 (D.C.Cir.1992). Contrary to the Plaintiffs’ arguments, the Court finds that since the issue of the NSC’s status has not been decided in the two prior Court of Appeals’ decisions, the “law of the ease” doctrine does not apply to the instant case, and therefore, this Court is not precluded from deciding the issue. The first appeal, Armstrong v. Bush, 924 F.2d 282 (D.C.Cir.1991), did not decide the issue because the question of whether the NSC is an “agency,” subject to the FOIA, first arose only after the Court of Appeals’ decision. (See Pis.’ Opp’n to Defs.’ Mot. for Summ.J. at 50-56 (July 6, 1992)). Likewise, the Court of Appeals in Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.Cir.1993), the second appeal, did not decide the issue either. In remanding back to this Court, the Court of Appeals in that case specifically stated that the issue of the NSC’s status as an agency “has never been definitely resolved.” Id. at 1296. Since the NSC’s status as an “agency” has never been previously decided, the Court finds that the “law of the case” doctrine does not bar this Court’s determination of the issue. The Court shall now turn to the merits of the instant dispute. II. THE COURT FINDS THAT THE NSC IS AN AGENCY BECAUSE THE NSC IS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH AND EXERCISES SUBSTANTIAL INDEPENDENT AUTHORITY SUCH THAT IT DOES NOT SOLELY RENDER ADVICE AND ASSISTANCE TO THE PRESIDENT. To be an agency, an entity must satisfy a two pronged analysis. First, an entity must be an “establishment in the executive branch.” 5 U.S.C. § 552(f). Second, the entity must exercise “substantial independent authority” to the extent that its role is not limited solely to giving advice and assistance to the President. Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971); see 5 U.S.C. § 551(1) and 552(f). In the instant case, the Court finds that both prongs of the agency test are met as applied to the NSC. A. The NSC Meets The First Prong Of The Agency Test Because It Is An Establishment In The Executive Branch That Has A Separate Staff And A Firm Structure. According to the law of this Circuit, an entity that has a separate staff and a firm structure is an “establishment in the executive branch” and, therefore, meets the first prong of the agency test. Meyer v. Bush, 981 F.2d 1288, 1293, 1295-96 (D.C.Cir.1993). In examining the nature of the NSC, the Court concludes that since the NSC has a separate staff and a firm structure, it is an establishment in the executive branch. First, the NSC by statute was provided with a separate staff. 50 U.S.C. § 402(c) (the NSC “shall have a staff’). In fact, during the past three Presidential administrations, there have been approximately one hundred fifty individuals on the NSC staff. (Defs.’ Resp. and Supplemental Resp. to Inter. No. 2). Second, the NSC has a firm structure. The NSC was created by the issuance of an affirmative statutory mandate when Congress stated that “[t]here is established a council to be known as the National Security Council.” 50 U.S.C. § 402(a). In its current set-up, the NSC has twenty-five separate interagency working groups operating within its structure and, as indicated by the NSC’s organizational chart, the NSC staff is organized into separate offices responsible for particular regions or functions. In addition, the NSC contains multiple “interagency working groups” that report to the NSC. (Joint Statement of Pacts ¶ 23). Finally, the Court notes that the NSC has a separate budget, which now totals in excess of $6,000,-000. (See Budget of the United States Government (1985); Mem. from J. Robert Manzanares, Director of Administration, to Robert S. Dotson, Chief, Air Force Branch of National Security Division Office of Management and Budget, entitled “FY 1995 Submission” (1993)). Since the NSC has a separate staff and a firm structure, as indicated by the foregoing facts, the Court concludes that the NSC is an “establishment in the executive branch” and, therefore, satisfies the first prong of the agency test. B. The NSC Meets The Second Prong Of The Agency Test Because It Exercises Substantial Independent Authority Through The Performance Of The Traditional Agency Tasks Of Rulemaking And Adjudication, And Because It Performs Many Functions Independently Of The President. The second prong of the agency test was established by this Circuit in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). In that case, the Court of Appeals had to decide whether the Office of Science and Technology (“OST”) is an agency subject to the FOIA. See Id. at 1070-71. The Court held that despite the fact that the OST advised and assisted the President, it is an agency because it performed additional independent functions. Id. at 1074. In finding the OST to be an agency, the Court of Appeals developed what has become known as the “sole function” test. According to this test, the second prong of the agency test, an entity that exercises substantial independent authority aside from advising and assisting the President is an agency. Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971); see 5 U.S.C. 552(f) (citing 5 U.S.C. 551(1)). It is undisputed that the “sole function” test applies to the instant ease. (Defs.’ Mot. for Summ.J. at 33-34). The Defendants contend, however, that under that test, the NSC’s sole function is to advise and assist the President. Id. at 40-53. The Court finds that the Defendants are simply incorrect. 1. The NSC Performs The Traditional Agency Functions Of Rulemaking And Adjudication. First, because the NSC performs rulemaking and adjudication, it exercises authority independently of the President, the NSC satisfies the sole function test. Under the Administrative Procedure Act (“APA”), entities that perform rulemaking and adjudicatory functions are considered agencies. See 5 U.S.C. §§ 551, 553, 554. A close examination of the facts of this case indicates that the NSC performs the same adjudicatory and rulemaking functions that are indicative of a classic “agency” under the APA. In publishing its regulations in the Code of Federal Regulations, the NSC has performed rulemaking. By statute, only the regulations that become published in the Code of Federal Regulations are considered agency documents that have “legal effect.” 44 U.S.C. § 1510(a). Consequently, regulations that become published in the Code of Federal Regulations are presumptively deemed rules of an agency. See Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539 (D.C.Cir.1986) (Scalia, J.); accord American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1109, 1112 (D.C.Cir.1993). In this case, the NSC has performed rulemaking by issuing many regulations that have been subsequently published in the Code of Federal Regulations. The NSC has, several times, issued regulations governing procedures for requesting information that were published in the Code of Federal Regulations. See generally, 32 C.F.R. §§ 2101-2103. Moreover, in conjunction with the Office of Science and Technology Policy, the NSC has issued regulations, published in the Code of Federal Regulations, governing national security and emergency preparedness. 47 C.F.R. §§ 201-216. Last, pursuant to an Executive Order, the NSC has issued a circular prescribing the procedures for handling telecommunications systems, which has also been published in the Code of Federal Regulations. See 47 C.F.R. § 213.1(b). In addition to numerous rulemaking functions, the NSC also performs various adjudicatory functions. With respect to the declassification of national security information, the NSC is empowered to review and overturn declassification decisions made by other agencies. Exec.Order No. 12,356, 47 Fed. Reg. 14874 (1982); 22 C.F.R. § 9.16. With respect to the FOIA, the FOIA regulations of other agencies require that requests for NSC or White House documents be referred to the NSC for review and determination. 32 C.F.R. §§ 286.7; 518.26; 701.8(i). In accordance with this authority, the NSC staff adjudicate approximately 1,500 FOIA and mandatory review requests each year. (Dep. of David Van Tassel, NSC Director of Access Management at 23-24, ¶¶ 19-18). In addition, the NSC staff has primary and authoritative review responsibility regarding FOIA requests for material classified and maintained by the NSC, by the President, or by his staff where there is an NSC interest. 32 C.F.R. § 2101.41(a)(1). With respect to government security agreements, the NSC reviews and approves the language used in the agreements in order to protect classified information. See 32 C.F.R. § 2003.20; 48 Fed. Reg. 40849. Moreover, the NSC makes decisions on export license applications that raise nuclear non-proliferation or national security issues. See 56 Fed.Reg. 6701. As the above facts indicate, the NSC performs the classic agency functions of rule-making and adjudication. In performing such functions, the NSC exercises authority independently of the President and thereby satisfies the sole function test. 2. The NSC Exercises Substantial Authority Independently Of The President In Key Policy Areas. In addition to satisfying the sole function test by performing the traditional agency functions of rulemaking and adjudication, the NSC also satisfies the test by virtue of its role in many different policy areas. As required by the sole function test, the NSC in each of these areas operates independently of the President. First, the NSC plays a role in Intelligence independent of the President. By statute, the NSC is the head of the Central Intelligence Agency (“CIA”). National Security Act of 1947, ch. 343, Pub.L. 253 (1947). According to the statute, the CIA is “to perform such ... functions and duties ... affecting the national security as the National Security Council may from time to time direct.” Id. More importantly, pursuant to Executive Order, the NSC is “the highest Executive Branch entity that provides review, guidance and direction to the conduct of all national foreign intelligence, counterintelligence, special activities, and attendant policies and programs.” Exec.Order No. 12,-333, 46 Fed.Reg. 59942 (1981). Second, the NSC plays a role in protecting National Security Information independent of the President. In the area of national security, an information security program governs the responsibilities of federal agencies with respect to classifying, declassifying, and safeguarding sensitive national security information. Exec.Order No. 12,356, 47 Fed. Reg. 14881 (1982). The NSC is charged with providing “overall policy direction” for this program. Id. Furthermore, the NSC is responsible for providing overall policy direction for a National Industrial Security Program, which controls the release of classified information to contractors. Exec.Order No. 12,829. Also, the NSC reviews regulations governing other agencies’ security practices, and conducts nearly 1,000 mandatory declassification reviews. See Id.; (Dep. of David Van Tassel, NSC Director of Access Management, at 23-24, ¶¶ 19-18). Moreover, the NSC plays a role in Telecommunications independent of the President. In 1963, the President established a National Communications System to link the communication facilities of the federal agencies and to conduct planning necessary to provide communications in national emergencies. (President Kennedy’s “Memorandum to the Heads of Executive Departments and Agencies” (1963)). Pursuant to an Executive Order, the NSC was given the responsibility for directing, coordinating and developing policies and programs of the National Communications System. Exec.Order No. 12,046. By virtue of a 1990 Directive, an NSC committee is responsible for federal policies with respect to the security of telecommunications systems. National Security Directive (1990). Furthermore, an Executive Order and various Directives have vested the NSC with overall responsibility for a national security emergency preparedness policy. See Exec. Order No. 12,656; National Security Decision Directive 47 (1982); National Security Decision Directive 314 (1988). In addition, the NSC plays a role in Arms Control Verification independent of the President. Under President Reagan, the NSC was responsible for monitoring arms control compliance and overseeing START and INF verification programs. National Security Decision Directive 65 (1982). Under President Bush, NSC committees were to provide guidance to United States’ inspection teams and to “coordinate verification research and development efforts.” (NSC Mem. on “Verification Technology Working Group” (1990)). The NSC also plays a role in Nonproliferation independent of the President. An NSC sub-group is responsible for reviewing any export licenses that propose to export items that potentially involve nuclear explosives. 42 U.S.C. § 2139a(c). Interagency disputes over such licenses are resolved through the use of NSC procedures. 56 Fed.Reg. 6701 § 5.a(ii) (1991). Further, pursuant to a National Security Directive, the NSC reviews export licenses concerning nonproliferation policy when requested by another agency. National Security Directive 53. Finally, the NSC plays a role in Public Diplomacy independent of the President. The NSC coordinates and directs international broadcasting and public affairs to generate support for national security objectives. (NSC Mem. on “NSDD-77 on Public Diplomacy” (1985)). In addition, the NSC provides “aid, training and organizational support for foreign governments and private groups.” Id. As the above facts indicate, the NSC exercises substantial authority independently of the President. Accordingly, under the sole function test, the Court finds that the NSC is an agency. III. THE COURT’S FINDING THAT THE NSC IS AN AGENCY FOLLOWS THIS CIRCUIT’S PRECEDENT. This Circuit has, several times, applied the Soucie v. David sole function test to other entities within the Executive Office of the President and found them to be agencies. See, e.g., Sierra Club v. Andrus, 581 F.2d 895 (D.C.Cir.1978), rev’d on other grounds, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); Pacific Legal Found v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980). In Sierra Club, the Court of Appeals held that although the Office of Management and Budget assists the President, it is an agency because it performs additional tasks as well, such as preparing the Budget for Congress. Sierra Club, 581 F.2d at 902. Two years later, in Pacific Legal Foundation, the Court of Appeals held that the Council on Environmental Quality was an agency. Pacific Legal Found., 636 F.2d at 1263. Although the Council advised the President, it was found to be an agency because, pursuant to Executive Orders, it had additional authority to evaluate federal programs. Id. As indicated by Soucie, Sierra Club and Pacific Legal Foundation, the Court need only find that an entity perform one additional role beyond rendering advice and assistance to the President in order to declare that an entity is an “agency.” In this case, it is obvious that the NSC does more than render advice and assistance to the President. In fact, this case is even easier to decide than the aforementioned Court of Appeals’ decisions. Where those prior Court decisions found entities within the EOP to be agencies on the basis of just one or more additional functions beyond advising and assisting the President, the NSC, in this case, exercises authority independently of the President in numerous areas. Nevertheless, despite the facts of this case and the legal precedent of this Circuit, the Defendants argue that the NSC is not an agency, but rather an “alter ego” of the President, in view of such eases as Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993). In Meyer, the Court found that then-President Reagan’s Task Force on Regulatory Relief was not an agency because of various factors. In particular, the Court noted that because the Task Force did not direct anyone, did not have substantial independence, was not expected to resolve disputes, and lacked a separate staff, it was not an independent entity. Id. at 1292-95. However, this case is readily distinguishable from Meyer for several reasons. First, the Task Force in Meyer was established by the President acting alone. Id. at 1289. The NSC, however, was created by statute. 50 U.S.C. § 402(a). Thus, the President has no authority to eliminate, sua ■sponte, the NSC. Second, crucial to the Meyer Court’s decision was a finding that the Task Force did not have a separate staff. Meyer, 981 F.2d at 1295. In contrast, the NSC, by statute, was provided with a separate staff. 50 U.S.C. § 402(c). More importantly, the Task Force in Meyer was also found not to be an agency, in part, because it was not expected to resolve disputes without presenting the disputes to the President directly. Meyer, 981 F.2d at 1294. However, the NSC has independent adjudicatory powers. As indicated supra, the NSC adjudicates in many areas such as declassification determinations, export licensing, and FOIA requests without the participation of the President. Because the NSC was created by statute, has a separate staff, and exercises independent adjudicatory power, the NSC is unlike the Task Force in Meyer and, instead, is like the entities in Sierra Club and Pacific Legal Foundation that were found to be agencies. Thus, according to this prior precedent, the NSC is an agency. IV. IN FINDING THAT THE NSC IS AN AGENCY, SUBJECT TO THE FOIA, THE COURT HOLDS THAT THE NSC MUST MAINTAIN AND PRESERVE ITS RECORDS IN ACCORDANCE WITH THE FEDERAL RECORDS ACT, EXCEPT WHEN HIGH LEVEL OFFICIALS OF THE NSC ACT SOLELY TO ADVISE AND ASSIST THE PRESIDENT. IN THAT LIMITED CIRCUMSTANCE, THE PRA, RATHER THAN THE FRA SHALL APPLY. In deciding this case, the Court finds that in holding that the NSC is an agency, it must give affect to both the FRA and the PRA. The FRA consists of a series of statutes, starting in 1943 with the Disposal of Records Act, ch. 192, 57 Stat. 380, and in 1950 with the Federal Records Act, ch. 849, 64 Stat. 583. Subsequently, these acts were amended by the Government Records Disposal Amendments of 1970, 84 Stat. 320, the Federal Records Management Amendments of 1976, 90 Stat. 2723, and the National Archives and Records Administration Act of 1984, 98 Stat. 2280. See Armstrong v. Bush, 924 F.2d 282, 284 n. 1 (D.C.Cir.1991) (citing 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq.) Subsequent to the original passage of the FRA, the PRA was enacted in 1978. See 44 U.S.C. § 2201 et seq. When faced with two statutes, the general rule is that a repeal by implication is dis-favored. E.g., Morton v. Mancari, 417 U.S. 535, 549-50, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); United States v. Hansen, 772 F.2d 940, 944 (D.C.Cir.1985) (Scalia, J.), cert. denied, 475 U.S. 1045, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986). Accordingly, a court is to give affect to both statutes, unless the statutes conflict or Congress specifically indicates otherwise. E.g., Morton, 417 U.S. at 551, 94 S.Ct. at 2483; see, e.g., Mail Order Ass’n of America v. United States Postal Serv., 986 F.2d 509, 515 (D.C.Cir.1993). In examining both statues, the Court finds that in holding that the NSC is an agency, the Court must recognize both statutes as applied to the NSC. First, the operation of the PRA and the FRA does not conflict because the statutes deal with different categories of records. Under the FRA, records that are subject to the Act are defined as: [Documentary materials ... made or received by an agency of the United States Government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation ... as evidence of the ... activities of the Government or because of the informational value of data in them. 44 U.S.C. § 3301. In contrast, records subject to the PRA are defined as: [Djocumentary materials ... created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. 44 U.S.C. § 2201(2). Moreover, the PRA does not apply to “any documentary materials that are ... official records of an agency.” Id. at § 2201(2)(B)(i). Since the PRA applies to nonagency records, while the FRA applies to agency records, the statutes have distinct applications and do not conflict. Furthermore, Congress has not indicated that the passage of the PRA repealed the FRA. See 44 U.S.C. § 2201 et seq. Although the PRA was promulgated after the FRA, neither the legislative history nor the language of the PRA indicate any Congressional intent to overturn the FRA. Id. Because the PRA did not repeal the FRA in its passage, and the statutes apply to different categories of records, the Court, under the settled law of the Circuit, must recognize the operation of both statutes as applied to the NSC. Thus, the PRA shall apply to the NSC in certain circumstances, in addition to the FRA. Due to its unique duties, high level officials of the NSC sometimes act not as members of an agency but, solely as advisors to the President. See, e.g., Exec. Order No. 12,333, 46 Fed.Reg. 59942 (1981). In fact, the NSC’s previous recordkeeping guidelines recognized this distinction when they segregated records as Presidential and Federal. (Exhibit B). Thus, since the PRA applies to documents that are created by an individual whose “function is to advise and assist the President,” 44 U.S.C. § 2201(2), the PRA must apply to NSC officials whenever they act solely to advise and assist the President. In all other circumstances the FRA shall apply to the NSC because it is an agency. Accordingly, under the settled law of this Circuit and the actual practice of the NSC, the Court holds that the NSC is an agency, subject to the FOIA, that must maintain and preserve its records in accordance with the FRA. However, in the limited circumstance in which a high level official of the NSC acts solely to advise and assist the President, the PRA, rather than the FRA shall apply. V. THE NSC HAS FAILED TO PROVIDE A REASONABLE EXPLANATION AS TO WHY IT HAS SUDDENLY DECLARED THAT IT IS NOT AN AGENCY. Even if the NSC did not perform rulemaking and adjudication, and otherwise exercise substantial authority independently of the President, the Court would still have to set aside the agency’s declaration that it is not an agency as arbitrary and capricious. Whenever an agency changes its position or policy, the general rule is that the agency must “supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored____” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1971), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971). The rule espoused by Greater Boston has been repeatedly applied in this Circuit. See, e.g., Cross-Sound Ferry Services, Inc. v. I.C.C., 934 F.2d 327, 329 (D.C.Cir.1991) (internal citations omitted). Thus, although an agency is free to alter its policies, it must give a satisfactory explanation as to why it has done so. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983); National Audubon Soc’y v. Hester, 801 F.2d 405, 408 (D.C.Cir.1986); see International Fabricare Inst. v. EPA, 972 F.2d 384, 389 (D.C.Cir.1992); Federal Election Comm’n v. Rose, 806 F.2d 1081, 1089 (D.C.Cir.1986). The Court observes that, while the aforementioned rule concerns judicial review of an agency’s change in policy, the seminal issue in this case is whether the NSC is an agency at all. Nevertheless, the Court finds this basic principle of administrative law applicable to the instant case as the NSC has admitted to being, and has operated as, an agency prior to its declaration. In turn, the Court finds that the NSC has failed to give a satisfactory or reasoned explanation as to why it has altered its position regarding its recordkeeping practices by declaring that it is not an agency. Since 1975, the NSC has operated as an agency by allowing its records to be FOIA accessible. (Exhibit B). Since that time, the NSC has processed hundreds of FOIA requests. (See Dep. of David Van Tassel, NSC Director of Access Management at 23-24, ¶¶ 19-18). Moreover, the NSC has previously acknowledged that it is an agency. (Letter from Stephen J. Rademaker, NSC Deputy Legal Adviser, to Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice (August 26, 1992); NSC Mem. on “United States of America v. Caspar Weinberger” (1992); see Joint Statement of Facts ¶ 171 (December 8, 1992)). Nevertheless, regardless of the NSC’s pri- or admissions and past practice, on March 25,1994, the NSC declared that it was not an agency and, therefore, could maintain all of its records solely under the Presidential Records Act. (Exhibit A, B). According to this declaration, all of the NSC’s records would no longer be subject to the FOIA. Id. However, nowhere in the March 25, 1994 declaration is there a reasoned explanation as to the NSC’s abrupt change in position. See Id. Under the settled law of this Circuit, the NSC must provide a reasoned explanation for this shift. Since the NSC has not done so here, its declaration that it is not an agency must be set aside as arbitrary and capricious. 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 39,103 S.Ct. 2856, 2864, 77 L.Ed.2d 443 (1983). VI. THE COURT’S FINDING THAT THE NSC IS AN AGENCY DOES NOT UNCONSTITUTIONALLY INTRUDE ON THE POWERS OF THE PRESIDENT, BECAUSE APPLYING THE FOIA TO THE NSC WOULD NOT CAUSE UNDUE DISCLOSURE OF SENSITIVE NATIONAL SECURITY DOCUMENTS. The Defendants’ final argument is that the Court can not find the NSC to be an agency subject to the FOIA, because such a finding would constitute an unconstitutional intrusion into the powers of the President over foreign and military affairs by causing undue disclosure of documents relating to national security. (Defs.’ Mot. to Dismiss, or, in the alternative for Summ.J. at 58 (1994)). This is simply incorrect. It is true that, in construing a statute, a court should avoid a construction that raises constitutional problems. Public Citizen v. Department of Justice, 491 U.S. 440, 466, 109 S.Ct. 2558, 2573, 105 L.Ed.2d 377 (1989). However, in construing the statute establishing the NSC, a finding that the NSC is an agency subject to the.FOIA would not result in an unconstitutional intrusion into the powers of the President for several reasons. First, the NSC has previously admitted to being an agency. (See, e.g., Joint Statement of Material Facts ¶ 158 (1992)). Thus, the Defendants’ argument, that there are constitutional concerns in finding that the NSC is an agency, when the NSC has previously admitted to being an agency, is disingenuous, at best. Second, the NSC has processed many FOIA requests notwithstanding their current claim that subjecting the NSC to the FOIA would raise constitutional conflicts. In 1966, Congress enacted the FOIA. 5 U.S.C. § 552. Since 1975 until the March 25, 1994 declaration, the NSC has subjected itself to the FOIA. (Exhibit B (citing 32 C.F.R. § 2101.1, 40 Fed.Reg. 7316 (1975))). During those nineteen years, the NSC never asserted that subjecting itself to the FOIA creates constitutional problems. More importantly, the FOIA itself prevents disclosure of sensitive national security documents, thereby protecting the President from any undue infringement on his authority over national security matters. In enacting the FOIA, Congress specifically provided for nine categories of information that would be exempt from disclosure. In particular, the FOIA exempts from disclosure information falling into any of the following categories: (1) national security; (2) internal agency rules; (3) material that is exempted by another federal statute; (4) trade secrets; (5) inter and intra agency memoranda; (6) personal privacy; (7) law enforcement records; (8) records of financial institutions; and (9) geological or geophysical information. 5 U.S.C. § 552(b)(1) — (9). With respect to the instant case, the FOIA specifically exempts from disclosure documents that relate to sensitive national security issues. 5 U.S.C. § 552(b)(1), (5). Indeed, counsel for the NSC has been unable to name a single instance in which sensitive national security material was released under the FOIA after an agency’s invocation of one of the FOIA exemptions. Therefore, because Congress has specifically provided that materials relating to national security affairs shall not be disclosed, the holding of this Court that the NSC is an agency will not interfere with the President’s powers over foreign and military matters. CONCLUSION Based on the foregoing, the Court finds that the NSC is an agency subject to the FOIA, and is obligated to preserve all of its records in accordance with the Federal Records Act, except when high level officials of the NSC are acting solely in their capacity to advise and assist the President. The Court further finds that to the extent the NSC’s current guidelines allow all of its records to be classified as “Presidential” records, the guidelines are contrary to law. The NSC and the Archivist must adopt new guidelines for the NSC in place of those vacated and nullified on March 25, 1994, so as to ensure that non-Presidential Records are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act. Obviously, the Court, in issuing this Opinion, does not intend to require Presidential Records or documents, written or electronic, that are designed solely to advise and assist the President to be preserved except as required by the Presidential Records Act. Nevertheless, the Archivist and records personnel in the NSC have a duty to adopt guidelines ensuring that records under the Federal Records Act are preserved. The Court observes that since other components of the EOP have already adopted new guidelines, this will not impose any undue burden. Accordingly, the Archivist is hereby directed forthwith to perform her obligations under the Federal Records Act with respect to the NSC’s records. The Court shall issue an Order of even date herewith in accordance with this Memorandum Opinion. ORDER Upon careful consideration of the parties’ submissions, the arguments of Counsel, the record in the case and the underlying law, and for the reasons articulated in the Opinion of the Court of even date herewith, it is, by the Court, this 14th day of February 1995, ORDERED that the parties’ Motion to exceed page limitations shall be, and hereby is, GRANTED; and it is FURTHER ORDERED that Defendants’ Motion to withdraw and amend prior responses to Requests for Admissions shall be, and hereby is, DENIED; and it is FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is FURTHER ORDERED that Defendants’ Motion for Summary Judgment shall be, and hereby is, DENIED; and it is FURTHER ORDERED that the Court hereby declares that to the extent the NSC’s current recordkeeping guidelines classify all of its records as “Presidential,” those guidelines are contrary to law and the Archivist is hereby directed to perform her obligations under the Federal Records Act; and it is FURTHER ORDERED that the Court hereby declares that the NSC is an agency subject to the FOIA, within the meaning of the Federal Records Act, with the limited exception mentioned in the Court’s Opinion of even date herewith, and the records created and received on the NSC’s electronic communications systems shall be maintained and preserved in accordance with the Federal Records Act; and it is FURTHER ORDERED that on or before 4:00 p.m. on February 27, 1995, the Executive Office of the President and the Archivist shall forthwith adopt new guidelines for the National Security Council, in place of those vacated and nullified on March 25, 1994, in accordance with the Court’s Opinion issued on even date herewith. EXHIBIT A THE WHITE HOUSE WASHINGTON March 24, 1994 MEMORANDUM FOR ANTHONY LAKE WILLIAM H. ITOH SUBJECT: Access to NSC Records I understand that the status of the National Security Council (NSC) under the Freedom of Information Act (FOIA) and the Presidential Records Act will be the subject of further litigation in the case of Armstrong v. Executive Office of the President. I further understand our position is that the NSC is an entity within the Executive Office of the President that exists solely to advise and assist me in the discharge of my constitutionally based responsibilities over the national security affairs of the United States. If this legal position prevails, I understand that one consequence is that NSC records would not, as a matter of law, be subject to disclosure under the Freedom of Information Act. Notwithstanding this legal conclusion, I strongly support the policy of past Administrations of permitting public access to certain NSC records, and of leaving certain NSC records to the incoming Administration in order to ensure a smooth transition on national security matters. Therefore, to provide for continued access to NSC records and their appropriate disposition at the end of my Administration, I direct you to take the following steps: 1. Establish procedures for continued access by the public to those NSC records previously transferred by one Administration to another for transition and continuity purposes. 2. Establish procedures for access by the public to appropriate NSC records of the current Administration. 3. Develop a plan to provide copies of appropriate NSC records to the next Administration in order to provide for smooth transition and continuity of essential foreign policy and national security matters. (s) William J. Clinton EXHIBIT B NATIONAL SECURITY COUNCIL WASHINGTON, DC 20506 March 25, 1994 ACTION MEMORANDUM FOR WILLIAM H. LEARY FROM: WILLIAM H. ITOH SUBJECT: Instruction on Presidential Status of the National Security Council and Revised Disclosure and Disposition Policy A. Summary The purpose of this memo is to direct you to revoke the National Security Council’s existing FOIA guidelines, 32 C.F.R. § 2101 and simultaneously to issue voluntary disclosure guidelines consistent with President Clinton’s memorandum to me and Tony Lake, dated March 24, 1994. The President’s memorandum sets forth his instruction to provide for continued public access to NSC records that were left at the NSC by prior Administrations, to provide for public access to appropriate records of this NSC, and to transfer copies of appropriate NSC records to the next Administration. This memo refl