Full opinion text
Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting opinion filed by Circuit Judge WALD. SILBERMAN, Circuit Judge: The district court, at the behest of the government, certified to us on interlocutory appeal the question whether President Reagan’s Task Force on Regulatory Relief, headed by .then-Viee President Bush and composed of certain cabinet members, is an “agency” for purposes of the Freedom of Information Act, 5 U.S.C. § 552. Appellee seeks certain Task Force documents under the Act. We reverse the district court’s determination and hold that the Task Force was not an “agency.” I. Soon after his inauguration in 1981, President Reagan embarked on an effort to reduce regulatory burdens on the economy. As part of that program, the President established a cabinet-level Task Force on Regulatory Relief which included the Vice President, the Attorney General, the Secretaries of the Treasury, Commerce and Labor Departments, the Director of the Office of Management and Budget (OMB), the Chairman of the Council of Economic Advisers, and the President’s Assistant for Policy Planning. President Reagan directed the Task Force to “review pending regulations, study past regulations with an eye towards revising them and recommend appropriate legislative remedies.” As head of the Task Foree, Vice President Bush named the Administrator for OMB’s Office of Information and Regulatory Affairs (OIRA) as the Executive Director of the Task Force and a Special Assistant to the President as the Associate Director. Using staff from OMB, the Task Force operated from the Office of the Vice President. President Reagan followed up the creation of the Task Force with Executive Order 12,291, which details the procedures for developing regulations and requires agencies to use cost/benefit analysis when making decisions. See Exec. Order No. 12,291, 46 Fed.Reg. Í3,193 (1981). Agencies must issue a Regulatory Impact Analysis (RIA) for any regulations that have a significant effect on the economy — defined as “major rules” in the Executive Order. Subject to the direction of the Task Force, the OMB Director has the authority to review RIAs and to issue guidelines both for filing the RIAs and for identifying major rules. The Order also gives the OMB Director — subject to the Task Force’s guidance — the authority, among other things: (1) to designate regulations as major rules; (2) to require agencies to seek additional information in connection with a regulation; (3) to require interagency consultation designed to reduce conflicting'regulations; (4) to develop procedures for estimating the annual social costs and benefits of regulations; and (5) to prepare recommendations to the President for changes in agency statutes. Exec. Order No. 12,291, § 6. If any disagreements arise between an agency and OMB, the.Task Force “shall resolve any issues raised under this Order or ensure that they are presented to the President.” Id. § 3(e)(1). Thus, the Order authorized OMB, under Task Force guidance, to provide policy advice, to require agencies to seek inter-agency coordination, and even to delay regulatory proposals. But it did not confer any power to prevent an agency from carrying out its legal duty. The Order Cautioned that the agencies must follow its provisions only “to the extent permitted by law.” Id. § 2. And § 8 exempts “[a]ny regulation for which consideration or reconsideration ... would conflict with deadlines imposed by statute or by judicial order.” Moreover, in § 9, the President directed that the Order “is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States.” The Task Force was in operation for two periods during the Reagan Administration. From 1981 to its initial termination in 1983, the Task Force reviewed and assessed regulations. In its “final report,” the Task Force stated that it had “designated a total of 119 of the most questionable [existing] rules and regulatory programs for high-priority agency reconsideration,” 76 of which the Administration took final action “to revise or eliminate,” and 27 of which received “partial action or formal proposals for change.” Under the Executive Order, OMB had reviewed 6,701 proposed and final regulations, including 89 final, and 53 proposed, “major” regulations. After a hiatus of three years, President Reagan reactivated the Task Force on December 15, 1986, and gave it much the same mission it had before. The Task Force was phased out after the transition to the Bush Administration. On June 29, 1988, appellee submitted her FOIA request for documents held by “the Task Force on Regulatory Relief, Vice President George Bush, who Chairs the Task Force, or any other member of the Task Force.” Appellee sought three types of documents: “(1) [a]ll reports, which have been issued since February, 1981, concerning the accomplishments of the Task Force; (2) [a]ll reports, which have been issued since February, 1981, which list or identify the regulations that the Task Force has reviewed; and (3) all reports, memoranda, correspondence, or other written documents transmitted to or from the Task Force or any of its members since January 1,1985, concerning the Task Force’s review of or involvement in regulations that were or still are under consideration by the Environmental Protection Agency, the Food and Drug Administration, or the Occupational Safety and Health Administration.” After denying appellee’s request, attorneys of the Vice President’s office referred her to the OIRA Administrator, who also served as Executive Director of the Task Force. Upon receiving appellee’s renewed request, OMB officials conducted a search of publicly available reports and press releases, copies of Task Force documents located at OMB, and OMB’s own files for records related to the Task Force. OMB did not conduct a search of the Vice President’s files, which the government claimed were exempt from FOIA. In response to appel-lee’s first two requests, OMB released only publicly available documents in its files. OMB identified eight “documents” covered by appellee’s third request, but declined to provide them to appellee. The first seven documents are pages from briefing books prepared for the Vice President and other members of the Task Force (in 1987-88) for use during Task Force deliberations.' They discuss agency regulations, the Task Force’s staff analysis of those regulations, and policy recommendations to the Task Force. Copies of the briefing books were kept in “Task Force files” in the office of the OIRA Administrator, who, as it will be recalled, was also Executive Director of the Task Force. Although located at OMB, the files were segregated from OMB files. The government declined to produce these documents on the grounds that neither the Vice President nor the Task Force are “agencies” under FOIA. The eighth document, a letter sent by the OIRA Administrator to Health and Human Services Secretary Bowen, contains “recommendations and guidance to be incorporated in future administrative and legislative proposals to improve the [FDA’s inves-tigational new drug] approval process,” according to OMB officials. OMB withheld the letter under exemption 5 of FOIA, 5 U.S.C. § 552(b)(5), as a pre-decisional memorandum. The government concedes that the letter is an OMB — not a Task Force— document and that OMB is an agency within the meaning of FOIA. Thus, the eighth document is not subject to this interlocutory appeal. Appellee brought suit in the district court challenging the adequacy of the document search, the government’s specific refusal to search the Vice President’s files, and the withholding of the eight documents. On a motion for summary judgment, the government claimed that the first seven documents were not “agency” documents, that the eighth was exempt, and that the search was adequate. Denying the motion, the district court held that the documents were Task Force documents, not the Vice President’s, and that the Task Force was an agency under FOIA. See Meyer v. Bush, Civil Action No. 88-3122, Mem. Op., 1991 WL 212215 (D.D.C. Sept. 30, 1991). According to the court, “the Task Force was not formed simply to advise and assist the President,” but rather “had substantial, independent, directorial authority.” Id. The court did not decide whether the government was obliged to search the Vice President’s files, and, upon the government’s motion, certified as appropriate for an interlocutory appeal the question whether the Task Force is an agency under FOIA. II. The district court applied the correct governing law in determining whether a body within the Executive Office of the President is a FOIA “agency.” As amended in 1974, the Act defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(e) (emphasis added). As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). In that case, we held that the Office of Science and Technology (OST), a distinct entity within the Executive Office of the President, was a FOIA “agency.” Although we acknowledged that OST advised and assisted the President, we emphasized that OST also had inherited from the National Science Foundation “substantial independent authority, ’! such as evaluating federal programs, initiating and supporting research, and awarding scholarships. Id. at 1073-75 (emphasis added); see also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). OST was a FOIA agency precisely because it could act directly and independently beyond advising and assisting the President. “By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act.” Soucie, 448 F.2d at 1075. In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court followed the legislative history and held that the Act did not cover “ ‘the President’s immediate personal staff or units , in the Executive Office whose sole function is to advise and assist the President.’ ” Id. at 156, 100 S.Ct. at 971 (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974)) (emphasis added). Shortly after Kissinger, in Pacific Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980), we decided that the Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, was a FOIA agency. But subsequently in Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), we distinguished the Council of Economic Advisers (CEA) from the CEQ and exempted it from FOIA. We did so even though the House Report (on which the dissent relies, dissent at 1298) explicitly listed the CEA as an agency under FOIA. We concluded that the subsequent Conference Report’s adoption of the Soucie test directly had undercut the House Report. We conceded that “the statutes organizing CEA and CEQ are, for all practical purposes, identical.” Id. at 1041. Both organizations, moreover, performed duties, enumerated by statute, directed at providing advice and assistance to the President. CEQ differed, however, because several executive orders had given it the power to coordinate federal environmental programs and to issue guidelines to federal agencies for preparing environmental impact statements. Id. CEQ also had the authority to promulgate regulations — legally binding on the agencies — implementing the procedural provisions of the National Environmental Policy Act, 83 Stat. 852 (1970). See also Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85-(D.C.Cir.1990). CEA had no similar power to issue formal, legally authoritative commands to entities or persons within or outside the executive branch. As we observed: “CEA is directed to appraise federal programs relative to a particular statutory policy and make recommendations to the President in that regard.” Rushforth, 762 F.2d at 1043. But the “CEA has no regulatory power under [its] statute. It cannot fund projects based on [its] appraisal, as OST might, nor can it issue regulations for procedures based on the appraisals, as CEQ might.” Id. Appellee argues that the Task Force bore a closer resemblance to the CEQ than the CEA because it evaluated agency regulatory efforts and had authority to provide some direction over agency rulemaking. In other words, appellee focuses not on the Task Force’s advice or recommendation responsibilities to the President, but rather on its interaction with the agencies. The government responds that the directions given to the agencies merely “assisted” the President because the President himself cannot issue every specific order to the departments and agencies. According to the government, appellee’s argument would read “assist” out of Soucie and Kissinger’s “advise and .assist” test, and would limit its exemption to bodies that only advise the President. The government also contends that the Task Force did not exercise sufficient independent authority — independent from the President — to qualify as an “agency” under the Act. It was no different than several presidential assistants acting together or than the President’s cabinet. And the government emphasizes that the Vice President — a separate constitutional officer who could not be thought of as an “agency” — headed the Task Force. Finally, the government distinguishes our prior eases because, unlike the OST, the CEQ, or even the CEA, the Task Force never received any delegated authority from Congress. The core of the dispute between the parties, then, turns on the degree of independence from the President the Task Force exercised in its relations with the rest of the executive branch. Was the Task Force, in Soucie’s words, “substantially independent,” or was its function “solely to advise and assist” the President? The latter phrase is not easy to apply literally. Every action taken by any executive branch official can be described as “assisting” the President. On the other hand, the line cannot be drawn to include all those who direct others in the executive branch because, contrary to the legislative history and Kissinger, under that approach the White House staff would be an agency. We can assume, however, that Congress intended the phrase “solely to advise and assist” the President to refer to entities whose characteristics and functions were similar, to those of the President’s immediate personal staff. Thus, when we apply Soucie to those who help the President supervise others in the executive branch, we think it is necessary to focus on three interrelated factors. We must ask how close operationally the group is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure. Proximity to the President, in the sense of continuing interaction, is surely in part what Congress had in mind when it exempted the President’s “immediate personal staff” without requiring a careful examination of its function. See H.R.Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974). Therefore, the other units in the Executive Office, which are exempted because they “advise and assist the President,” would be those whose characteristics are similar to the White House staff — one of which is proximity to the President. Closely' related to the proximity factor is the nature of the delegation. The greater the scope of the delegation — which also usually implies less' continuing interaction with the President — the more independence an entity will exercise. Thus, Rushforth held that the CEA was not an agency because, unlike CEQ, CEA did not possess any delegated regulatory authority to supervise agencies. Similarly, we recently determined that the White House Counsel’s Office is not a FOIA agency. National Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990). Unquestionably, the Chairman and members of the CEA and the White House counsel, like other senior White House officials close to the President, often give ad hoc directions to executive branch personnel. But when it occurs, it is assumed that they merely are passing on the President’s wishes. In this case, appellee contends that the Task Force exercised regulatory authority over executive branch agencies. That is not accurate. Executive Order 12,-291 did not authorize either the Vice President or the Task Force, qua Task Force, to give directions to the executive branch. Instead, the OMB Director took up that responsibility under the Executive Order. For example, the Order says the Director of OMB shall have the authority to designate major rules “subject to the direction of the Task Force.” Exec. Order No. 12,-291, § 3(b). The Director’s other powers of review are only “subject to the direction of the Task Force.” Id. § 3(e)(1), § (3)(i), § 5(b), § 6(a), § 6(b). The Associate Director of OMB for OIRA also served as Executive Director of the Task Force, but the government does not even claim that his (or the Director’s), written policy instructions to the agencies were “Task Force” documents. As the government concedes, those documents, like document eight, are OMB records subject to FOIA. Insofar as appellee is correct in arguing that the body which provided direction to the executive branch is an agency under FOIA, that body is OMB, not the Task Force. A careful reading of the Executive Order--which, of course, is the most important indication of the Task Force's role-reveals that whatever significant authorit~ the President delegated he gave to th Director of 0MB. Although the appellef and the dissent blend together the responsi bilities of both 0MB and the Task Force they are analytically quite distinct. ThE dissent's list of the "Task Force's" respon sibilities, dissent at 1294, is, therefore-like Homer's catalogue of ships-exhaustive but quite beside the point. Also irrelevant, at least to this case, is the dissent's concern that OMB's directives implementing the Executive Order should be exposed, see dissent at 1313 n. 26. Despite OMB’s closeness to the President, it is a permanent agency with a significant staff and broadly delegated powers, and so it unquestionably falls under FOIA. It remains to be determined, however, whether the Task Force's role, vis-a-vis the 0MB Director and cabinet or agency heads, made the Task Force a FOIA agency. The Executive Order did give the Task Force the responsibility for providing "guidance" and "direction" to the 0MB Director, and the authority to resolve disputes between agencies and 0MB "or [toj ensure that they are presented to the President." Exec.Order No. 12,291, § 3(e)(1). In that respect, however, the Task Force theoretically was positioned between the 0MB Director and the President, placing the Task Force only a hair's breadth from the President. After all, the 0MB Director, whose duties include aiding the President in managing the entire executive branch, is (as the dissent recognizes at 1307) the cabinet officer functionally, if not actually, closest to the President. The cabinet members serving on the Task Force, therefore, were acting not so much as the heads of their departments, but rather as the functional equivalents of assistants to the President ("immediate personal staff" are, it will be recalled, exempt from FOIA coverage). Furthermore, notwithstanding appellee's proffer of press releases-which is not reliable evidence-we see no indication that the Task Force, qua Task Force, directed anyone, including 0MB, to do anything. When the Task Force wished directions given to the executive branch, it found it necessary to advise the President to put such instructions in another Executive Order. (See Executive Order No. 12,498 § 1(d)). If the Task Force exercised all the powers which the dissent attributes to it, we would expect the Task Force to have generated more than only the seven documents that fell within appellee's FOIA request. Nor does the dispute resolution mechanism of the Executive Order indicate that the Task Force, in dealing with the OMB Director (or the agency heads), acted with substantial independence. Despite the option granted to the Task Force to resolve disputes or bring them to the President, it is rather hard to imagine that the OMB Director, or' any other head of a department or agency who reports directly to the President, would acquiesce in a Task Force decision that was thought not to represent directly and precisely the President’s opinion. It seems implicit that the Vice President and the other members of the Task Force were not expected to resolve disputes themselves, without presenting those disputes to the President, unless they already knew the President’s views on the exact issue. This, of course, means the Task Force was not expected to act with significant independence. Not surprisingly, there is no documented example of an agency appealing an OMB decision to the Task Force.' Appellee suggests, however, that the Vice President’s chairmanship of the Task Force gave the Task Force added clout and independent authority. The government responds that the Vice President’s role made the Task Force even less plausible an agency under FOIA. Because of his constitutional position, according to the government, we must treat the Vice President and his staff in the same manner as the President and his staff. Indeed, appellee conceded at oral argument that if the Vice President alone held the exact duties of the Task Force, the Vice President would not be an agency for purposes of FOIA. See Armstrong v. Bush, 924 F.2d 282, 286 n. 2 (D.C.Cir.1991) (President and Vice President subject only to Presidential Records Act, not Federal Records Act). In any event, despite the Vice President’s rank, we do not believe his status as Chairman lent the Task Force any authority independent of the President. The Vice President is the only senior official in the executive branch totally protected from the President’s removal power. See Bowsher v. Synar, 478 U.S. 714, 721-27, 106 S.Ct. 3181, 3185-88, 92 L.Ed.2d 583 (1986) (presidential power to remove executive branch officials crucial to presidential control). Presidents are, for that reason, reluctant to delegate real supervisory authority over the executive branch to the Vice President. As Professor Rossiter has observed, it is dangerous for the President to give the Vice President administrative responsibilities “because the Vice President is not subject to removal” and so could become “a dagger aimed constantly at the precious unity of the executive power.” C. Rossi-ter, The American Presidency 140 (2d ed. 1960); see also Report of the Task Force in A Heartbeat Away: Report of the Twentieth Century Fund Task Foroe on the Vice Presidency 64-66 (1988). No matter how close the personal and functional relationship between a Vice President and President, the former, mindful of traditional presidential concerns, presumably will not express direction to others in the executive branch unless his view is shared by the President. The Vice President’s ehairmanship, thus, cuts against appellee’s argument. The Task Force’s lack of a separate staff further indicates the absence of independent authority. In Soucie, we implied that structure and function, for purposes of defining agency, are interrelated. “If the OST’s sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President’s staff and not a separate agency.” Soucie, 448 F.2d at 1075 (emphasis added). FOIA, by declaring that only “es-' tablishments in the executive branch” are covered, 5 U.S.C. § 552(e), requires a definite structure for agency status. And just as the intended exemption for the President’s personal staff leads us to believe that proximity to the President is relevant so, too, the exemption suggests the importance of structure. For another characteristic of the President’s immediate staff is its lack of a firm structure. It could be said that, in one sense, the President “established” the Task Force, albeit by informal presidential direction, and then later delegated to it certain functions under Executive Order 12,291. But the Task Force was simply a partial cabinet group. The President does not create an “establishment” subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem. Furthermore, the Task Force operated out of the Vice President’s office without a separate staff, borrowing OMB personnel as needed. We doubt that any individual or group, within the Office of the President, without a separate staff, can be regarded as an “establishment” with independent authority. Veterans of bureaucratic wars will insist that the typical officer in the executive branch is virtually powerless without a staff. And it is often said that presidential appointees are captured relatively quickly by their staffs-in other words, they are weaned away from presidential influence and made, in that sense, more independent. Whether these maxims are true or not, the Task Force's lack of a separate staff is a strong indicator that it was neither an "establishment" nor an independent actor in the executive branch. The dissent at 1312 n. 24 suggests that the Executive Order might distinguish this case from one in which the President merely instructs several cabinet officers, or a group of White House assistants (or perhaps the Chief of Staff), to perform the same duties. But that distinction appears inconsistent with the dissent’s insistence that the crucial factor is the function performed by the entity in question. As we understand our colleague’s reasoning, if the President had set up this exact structure by memorandum, or even by oral direction, the Task Force would still be a FOIA agency. So the Executive Order is, according to the dissent’s logic, mere sur-plusage. See dissent at 1303 n. 9; see also dissent at 1301. We do not think much should turn on whether the President delegates authority to a White House group by memorandum or by Executive Order. Otherwise, of course, a future President could avoid creating an agency under FOIA by informally delegating authority to an “establishment” in the Executive Office. As we have indicated, however, the structure of the group is important in determining its relative independence from the President. Function is crucial, but, like the architect Louis Sullivan, we believe that form follows function. The dissent acknowledges that the President has a constitutional duty to see that the laws are faithfully executed, and, therefore, a duty to oversee the regulatory policies produced by the departments and agencies. See Sierra Club v. Costle, 657 F.2d 298, 406 (D.C.Cir.1981); Public Citizen v. Burke, 843 F.2d 1473, 1477-78 (D.C.Cir.1988). Nonetheless, the dissent insists that the choice the President makes between various techniques to perform this task can have enormous consequences under FOIA. If he performs this role alone, meeting with' his cabinet officers and agency heads “face to face,” as our colleague puts it, he may keep the discussion entirely confidential (so long as the agency rule is justified by the record), Sierra Club at 657 F.2d at 407. But should he use a group of cabinet officers and perhaps White House staff in some sort of committee like the Task Force to screen the regulatory issues, he risks creating a FOIA agency. That approach empties the word “assist” in the Soucie test of all meaning. The dissent does not dispute, however, dissent at 1311-12 & n. 23, that if the President used only White House staff in this manner, he would avoid FOIA altogether. In other words, if the President had set up this exact Task Force structure (including OMB’s role) in this exact fashion (by Executive Order), but used senior White House staff personnel as his Task Force members, FOIA would not apply. If, on the other hand, a President employed his entire cabinet as his Task Force, the dissent insists that FOIA would apply. To be sure, the dissent does doubt that a President would ever delegate true independent authority to his cabinet. In light of that sound observation, however, it is difficult to understand why the dissent strains to construe the Executive Order as granting “substantial independent” authority to a partial cabinet group. And the dissent’s position leaves open the obvious question: how would we treat an analogous Task Force composed partially of senior White House staff and cabinet officers? The dissent appears to recognize that the structure employed at least bears on the question whether the President has delegated independent authority. Dissent at 1311 n. 22. It would appear, then, that the line the dissent draws in this case is governed more by fortuitous history than by a logical principle. The dissent asserts over and over that in this case — structure aside — the Task Force was given “substantial independent” authority. ' But it is unclear just what factors distinguish this case from a multitude of similar arrangements that a President could use to accomplish the exact same ends — arrangements that the dissent is unwilling to categorize as covered by FOIA or not. See dissent at 1311 n. 23. As for our dissenting colleague’s concerns about the President’s ability to “shroud [the Task Force’s] actions in absolute secrecy,” dissent at 1313, it is worth noting that when a President openly discloses exactly how he will review regulations — as, for example, by a Task Force mechanism — it might well be thought more forthright than the behind the scenes ad hoc approach sanctioned in Sierra Club. In sum, the Task Force was not a body with “substantial independent authority” to direct executive branch officials. The various cabinet members of the Task Force were unquestionably officers who wielded great authority as heads of their departments. But there is no indication that when acting as the Task Force they were to exercise substantial independent authority, nor in fact, did they do so. Put another way, the whole does not appear to equal the sum of its parts. The cabinet officers were acting, in truth, just as would senior White House staffers. We think the dissent’s characterization, moreover, of the Task Force as the “people” behind the scenes [or curtain?] “who call the shots” is not supported by the record in this case. The Task Force seems to have been merely a committee which convened periodically both to bring together the views of various cabinet department heads concerning significant proposed regulations, and to shape for the President’s decision intra-agency disputes which, in truth, only he can resolve. As such, the Task Force fell within the Soucie test as an entity “whose sole function is to advise and assist” the President. * * * * # Accordingly, for the reasons stated, we conclude that the Task Force was not an agency under FOIA. Having decided the issue certified to us, we remand the case to the district court. It is so ordered. . “With respect to the meaning of the term 'Executive Office of the President’ the conferees intend the result reached in Soucie v. David. The term 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.” H.R.Rep. No. 1380, 93d Cong., 2d Sess. 1+ (1974) (citation omitted). Before the 1974 Amendments, FOIA simply had adopted the APA’s definition of agency: "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1). . CEQ also admitted in litigation that it was an “agency,” but not when it acted in its capacity of advising and assisting the President. Pacific Legal Foundation, 636 F.2d at 1263. We rejected this on-again, off-again approach to FOIA in Ryan v. Department of Justice, 617 F.2d 781, 788-89 (D.C.Cir.1980). . The President’s immediate personal staff, we assume, would encompass at least those approximately 400 individuals employed in the White House Office. See Reorganization Plan No. 1 of 1977, 5 U.S.C.App. 1, § 2. But as we recognized in Rushforth, the sole function test must be applied to other units in the Executive Office of the President. . "If the OST’s sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency." Soucie, 448 F.2d at 1075. . It is interesting to note that in the beginning of the dissent OMB and the Task Force are mentioned together, but gradually OMB fades behind the “curtain” {see dissent at 1309 n. 18), and by the end of the opinion the Task Force emerges alone. . The dissent cites an article in an obscure law review (not in the record) as evidence that the Task Force actually exercised the power to resolve a dispute between OMB and OSHA. Dissent at 1308-09 n. 17. The law review article claims that the Task Force's dispute resolution authority was rarely invoked and that the OSHA example was the only publicly known example of .its exercise. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,Z91, 4 Va.J,Natural Resources L. 1, 44 & n. 210 (1984). But close examination of the law review article’s sources shows that it is unlikely any such incident took place. At hearings on OMB’s authority under Exec. Order 12,291, the representative of the AFL-CIO claimed that the Task Force had intervened in !an OMB-OSHA dispute to uphold OSHA’s.position. Nonetheless, the representative then conceded that "none of the intergovernmental exchanges ... are documented.” Hearings on OMB Control of OSHA Rulemaking: Hearings Before a Subcomm. of the House Comm, on Gov’t Operations, 97th Cong., 2d Sess. 22 (1982). In discussing the OMB-OSHA conflict, the head of OMB at the time merely noted that the Task Force had reviewed the matter but made no mention of an alleged appeal or a resolution of a dispute. Id. at 318. . The Executive Order carefully stated that its purpose was only for internal management and that it created no private rights. As such, it is doubtful that it had any legal significance. •An Executive Order devoted solely to the internal management of the executive branch-and one which does not create any private rights-is not, for instance, subject to judicial review. Michigan v. Thomas, 805 F.2d 176, 187 (6th Cir.1986); Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 235-36 (8th Cir.1975), cert. denied, 424 U.s. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976). The Order seems no different than a presidential memorandum delegating certain tasks to the Vice President and to some cabinet officers or to the President's own staff. If agency heads appealed directly to the President over a disagreement with 0MB (or the Task Force) on regulatory matters-without giving the Task Force its opportunity to resolve disputes-it surely would not have been thought "illegal." Certainly, the President, if he wished, could have ignored his own Task Force. . We do not have to decide whether the Vice President could ever be the head of a FOIA agency.' . The old story about President Lincoln overruling his entire cabinet is instructive. After receiving the unanimous vote of his cabinet against a certain decision, Lincoln announced: "The vote has been taken. Seven noes, one aye — the ayes have it." See R. Fenno, The President’s Cabinet 29 (1963).
WALD, Circuit Judge, dissenting: A close examination of the Freedom of Information Act (“FOIA” or “the Act”) and its legislative history, the governing FOIA precedent, and the record of the Task Force’s creation and functions demonstrates that the Task Force falls within the Act’s definition of an “agency.” The majority opinion does not give due weight either to the applicable law or to the actual role the Task Force played in the President’s regulatory reform program. Accordingly, I dissent. I. Background A. Legislative History Congress in 1974 amended the Freedom of Information Act to broaden the definition of “agency” to encompass more entities “which perform governmental functions and control information of interest to the public,” H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6274, reprinted in FOIA Souroe Book: Legislative History, Texts, and Other Documents, Committee on Government Operations, U.S. House of Representatives 121, 128 (1975) [hereinafter FOIA Source Book], These amendments expanded the definition of an “agency” expressly to include an “establishment ... in the Executive Office of the President.” 5 U.S.C. § 552(e). As the majority points out, the House/Senate conference committee, citing this court’s decision in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), clarified that “Executive Office of the President ... 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.” H.R.Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974), reprinted in FOIA Source Book 219, 233 [hereinafter Conference Report]. What the majority overlooks, however, is the additional and quite specific guidance Congress provided for determining when an establishment in the Executive Office of the President is an “agency” for FOIA purposes. Most significantly, Congress contemplated that “agency” would encompass entities, like the Task Force, which are created solely by executive order. The statutory language expanding the definition of an agency originated in the House bill, H.R. 12471. In its report accompanying that legislation, the House Committee on Government Operations stated: For the purposes of this section, the definition of “agency” has been expanded to include those entities which may not be considered agencies under [the APA, 5 U.S.C. § 551(1)], but which perform governmental functions and control information of interest to the public. The bill expands the definition of agency for purposes of [FOIA],... The term “establishment in the Executive Office of the President,” as used in the amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order. H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. $ Admin.News 1974, 6274, reprinted in FOIA Source Book 121, 128 (emphases added). Additionally, the legislative history indicates that in focusing on “functional entities” within the Executive Office of the President, Congress intended to exclude from the FOIA the President’s own records. An exchange during the floor debate on H.R. 12471 between Representative Moorhead, chair of the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations, and Representative Er-lenborn, the ranking minority member of that committee, illustrates this: Rep. Erlenborn: The question has been asked by Members on this side of the aisle as to the meaning of two definitions of agencies to include the Executive Office of the President. I want to ask the gentleman if it is not correct, as it states in the report of the committee, that the term “establishment in the Executive Office of the President” as it is contained in this bill means functional entities, such as the Office of Telecommunications Policy, the Office of Manager of [sic] the Budget, the Council of Economic Advisers and so forth; that it does not mean the public has a right to run through the private papers of the President himself? Rep. Moorhead: No, definitely not. I think the report is crystal clear on that. I thank the gentleman for bringing it up. 120 Cong. Rec. 6806 (1974), reprinted in FOIA Source Book at 241 (emphasis added). From the foregoing, we can surmise congressional intent on the definition of an agency to the following extent: It includes establishments within the Executive Office of the President, excepting only the President’s “immediate personal staff” or units whose “sole function” is to advise and assist the President. It encompasses entities created by executive orders, with no requirement that the entity receive direct congressional approval or appropriations. And it shields the President’s own records. B. Precedent In the oft-cited case of Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), this court interpreted the APA and the FOIA to confer agency status “on any administrative unit with substantial independent authority in the exercise of specific functions.” Id. at 1073 (emphasis added). We determined that the Office of Science and Technology (“OST-”) satisfied this test “[b]y virtue of its independent function of evaluating federal programs_” Id. at 1075. This court has applied the Soucie “sole function” test three times to entities within the Executive Office of the President; two of the. three entities were found to be “agencies.” In its first application of the Soucie test, this court held that the Office of Management and Budget (“OMB”), an entity within the Executive Office of the President, was an “agency” under the Administrative Procedure Act, 5 U.S.C. § 551(1) and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. Sierra Club v. Andrus, 581 F.2d 895 (D.C.Cir.1978). The court held that, although the OMB’s primary statutory duty was to prepare the President’s budget proposal for submission to Congress, it was an agency under the “sole function” test. Id. at 902. The court noted that the preparation of the budget was “an aid to Congress as well as an instrument of presidential and policymaking control over the executive bureaucracy,” and that the OMB had other “management, coordination, and administrative functions.” Id. The court also found that Congress “signified the importance of OMB’s function, over and above its role as presidential advisor,” when it provided for Senate confirmation of the OMB’s director and deputy director. Id. In 1980, this court applied the Soucie test to determine that the Council on Environmental Quality (“CEQ”), a unit within the Executive Office of the President, was an “agency” for purposes of the Government in the Sunshine Act, 5 U.S.C. § 552b(b), which adopted the FOIA definition of an agency. Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980). The CEQ was created by the NEPA, which authorized it to advise the President in preparing his annual environmental policy report; prepare studies on environmental conditions and trends for the President; review and appraise federal programs that affect the environment and make recommendations to the President about those programs; and recommend national environmental policies to the President. 42 U.S.C. § 4344. The CEQ’s mission was later expanded by several executive orders, which made it responsible for overseeing activities of federal agencies; for coordinating federal programs related to environmental quality and for issuing guidelines to federal agencies for preparing Environmental Impact Statements; for issuing regulations to federal agencies for implementing the procedural requirements of the NEPA; and for publishing and revising the national contingency plan for removing oil and hazardous substances from navigable waters. Pacific Legal Foundation, 636 F.2d at 1262. Relying on the Supreme Court’s determination in Soucie that the OST’s authority to evaluate federal programs was sufficient to qualify it as an agency, this court looked to the CEQ’s executive order authority to evaluate federal programs and likewise found it sufficient to qualify the CEQ as an agency. Id. at 1263. The only entity within the Executive Office of the President that this court has found not to be an agency under the “sole function” test is the President’s Council of Economic Advisors (“CEA”). Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C.Cir.1985). The CEA was created by statute, housed in the Executive Office of the President, and authorized to, among other things, advise and assist the President in formulating his economic policies; gather information concerning economic developments and trends; and appraise federal programs and activities in light of the President’s economic • policies. 15 U.S.C. § 1023. The court noted that the CEA and the CEQ, which the court had earlier determined to be an agency, were created by statutes that were “for all practical purposes, identical.” Rushforth, 762 F.2d at 1041. Nonetheless, Judge Starr, writing for the panel, distinguished the CEA from the CEQ on the ground that the latter’s statutory functions' had been expanded under several executive orders. Id. These expanded — and apparently disposi-tive — functions included coordinating federal regulatory policy, issuing guidelines for agencies to prepare required statements, and promulgating regulations for implementing the procedural provisions of a key environmental law. Id. See also id. at 1042 (the CEQ’s “expanded duties ... took [it] out of the realm of entities the sole function of which is to advise and assist the President”). Judge Starr also distinguished the CEA from the OST, found in Soucie to be an agency, by the OST’s ability to “take direct action.” Id. at 1041. This court most recently applied the Sou-cie test not to an entity within the Executive Office of the President, but to the Defense Nuclear Facilities Safety Board, an “independent establishment in the executive branch.” 42 U.S.C. § 2286(a). In Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581 (D.C.Cir.1990), we held that the Board was an agency under the Soucie test, based on four functions demonstrating that the Board did “considerably more than merely offer advice”: it conducted investigations; formally evaluated the Energy Department’s standards relating to defense nuclear facilities; “force[d] public decisions about health and safety”; and possessed the authority to impose reporting requirements on the Secretary of Energy. Id. at 584-85. The court found that, since “[evaluation plus advice was enough to make the Office of Science and Technology an ‘agency’ in Soucie,” and the CEQ an agency in Pacific Legal Foundation, the Board’s- evaluation and other functions more than fulfilled the Soucie test. Id. These cases teach us that whether an establishment is an “agency” for FOIA purposes hinges primarily on its functions. See, e.g., Rushforth, 762 F.2d at 1043 n. 7 (“it is, at bottom, its function that determines an entity’s status for FOIA purposes”); see also Ryan v. Department of Justice, 617 F.2d 781, 788 (D.C.Cir.1980) (agency status depends on “general nature and functions” of a particular unit). Specifically, agency status does not depend on where within the Executive Office of the President (but outside the Office of the President, see infra 1309-10, 1311 n. 23) the establishment is located, see Rushforth, 762 F.2d at 1041 (while the CEA and the OST were “located, hierarchically, in the same position ..., there [was] no indication that [their] functional roles ... were the same; and critically, it was the functional role of the agency on which Soucie turned”) (emphasis added), nor on congres-sionally granted authority, see id. (CEA and CEQ had virtually identical authorizing statutes). Thus, determining whether the Task Force is an agency requires a careful examination of both its authorized and actual functions. II. Application of the Law to the Task FORCE Turning now to the Task Force, it is obvious that both its structure and its authorized and actual functions satisfy all statutory and case law requirements of an agency under the FOIA. A. The Task Force as an Establishment First, the Task Force was an “establishment” within the Executive Office of the President. The legislative history of the FOIA’s expanded definition of “agency” makes clear that entities created by executive order are sufficiently “established” to fall within its ambit. H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6274, reprinted in FOIA Source Book at 121,128. The majority, however, in its inquiry into the nature of the delegation of authority to the Task Force, completely overlooks the formality and authority of the delegation provided by Executive Order No. 12,291, saying that the President established the Task Force by “informal presidential direction” and suggesting that it lacked a sufficiently “definite structure” to qualify for agency status. Majority opinion (“Maj. op.”) at 1296. Although the President announced the formation of the Task Force before he issued Executive Order No. 12,291, it was the Executive Order that spelled out the-Task Force’s mission, responsibilities and relationship to other entities in the executive branch, including those within the Executive Office of the President. Short of a reorganization plan requiring congressional approval, the executive order offers the most formal means available to the President to create or assign responsibility to an entity within the Executive Office of the President. Without deciding whether an entity in the Executive Office of the President without executive order authority can ever be an agency, it seems clear that an entity whose-role is established by an executive order is a sufficient “establishment” to qualify as an agency, provided it passes Sonde’s “sole function” test. The majority is surely correct that the President “does not create an ‘establishment’ subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem.” Maj. op. at 1296. This is not, however, a question of the President calling in his chief of staff and the Director of OMB, or yet his entire cabinet, for a strategy session. Instead, it is a matter of the creation of a separate functional entity to which the President — by an executive order — delegated significant independent authority to act on a continuing basis without his ongoing involvement. See infra at 1304-07. The potential importance of executive order authority is evident in our opinion in Rushforth. There we determined that the President’s delegation of authority, through an executive order, was alone enough to make an entity an “agency”: [AJppellant mounts a policy argument that the President should not be allowed to take an entity out of, or place an entity in, FOIA agency status by the mere expedient of adding or eliminating duties. This argument is unavailing. Congress’ intent would appear to have been to require entities having authority and the ability to act, but not those whose sole function was to render advice and assistance to the President, to be subject to FOIA. If the President adds duties to an entity which bring it outside the sole-function test, Congress would want the entity covered. Rushforth, 762 F.2d- at 1042 n. 5. This confirms that the “independent” authority that takes an agency outside the sole function test can be granted by the President, as well as the Congress. See also id. at 1042 (CEA lacked the “independent” authority enjoyed by the CEQ — authority granted by an executive order); id. at 1041-43 (emphasizing that the inquiry is on an entity’s functions, not its genesis). The majority also expresses its “doubt that any individual or group, within the Office of the President, without a separate staff can be regarded as an ‘establishment’ with independent authority.” Maj. op. at 1296. This new “requirement” of the majority that an agency have a separate staff is at odds with our precedent focusing on how an entity functions, not where it gets the resources to perform those functions. See Rushforth, 762 F.2d at 1041 (“critically, it was the functional role of the agency on which Soucie turned”); id. at 1043 n. 7 (Senate confirmation of CEA members not given great weight, as “the nature of the appointment” did not “speak[ ] to the function of the CEA”). Nor does this staff “requirement” appear anywhere in the FOIA’s language or legislative history. Indeed, when Congress indicated that an entity created by an executive order could be a FOIA agency, it had to have contemplated that the President might exercise his broad powers to structure the Executive Office of the President to staff the new entity as he saw fit, whether by transferring staff to it or by designating personnel of other Executive Offices to provide needed support. It is clear that, by permitting FOIA agencies to be formed by executive order, Congress foreswore any requirement that an agency’s staff appear on a separate line in an authorization or appropriation bill. Even in case law under the APA, whose definition of “agency” is less expansive than the FOIA’s, there is no such “separate staff” requirement. Instead, the APA inquiry into agency status is much like the FOIA inquiry: focused on the functions of the entity, and flexible enough to encompass the “myriad organizational arrangements for getting the business of government done.” Washington Research Proj., Inc. v. HEW, 504 F.2d 238, 246 (D.C.Cir.1974) (citations omitted), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). See also Lee Constr. Co. v. Fed. Reserve Bank of Richmond, 558 F.Supp. 165, 173 (D.Md.1982) (“ ‘The authority to act with the sanction of government behind it determines whether or not a governmental agency exists.’ ”) (quoting Lassiter v. Guy F. Atkinson Co., 176 F.2d 984, 991 (9th Cir.1949)). Staff capabilities may, of course, be relevant indicia of an entity’s ability to take substantial independent action, see Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 482 F.2d 710, 715 (D.C.Cir.1973), rev’d on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), but ready access to staff support or, as in the case of the Task Force, direct delegation of authority effectively to direct OMB staff is the functional equivalent of a separate staff, as this case illustrates. In any event, it is clear, the majority’s claims aside, that the Task Force was not “virtually powerless” without a separate staff. Maj. op. at 1296.- Through its authority to direct the OMB Director and through the service of the OIRA Administrator as Executive Director of the Task Force (reinforced by the political suasion of its high-powered membership), the Task Force had the staff of a powerful and effective agency at its disposal. B. The Task Force’s Functions Turning to the second part of our inquiry, the Task Force clearly had functions beyond “advising and assisting the President,” as this term has been construed in our case law. As the majority acknowledges, Executive Order No. 12,291 “is the most important indication of the Task Force’s role_” Maj. op. at 1294. This Executive Order gave the Task Force “substantial independent authority,” Soucie, 448 F.2d at 1073, charging it with the “direction” of a far-reaching regulatory reform program. The Task Force’s directions were to be carried out by the Director of the OMB. Exec. Order No. 12,-291 §§ 3(b), 3(e)(1), 3(i), 5(b), 6(a), 6(b), 7(c), 7(g) and 8(b). The Task Force was to “direct” the OMB Director in performing the following functions: reviewing preliminary and final Regulatory Impact Analyses (“RIAs”), notices of proposed rulemaking, or final rules based on the requirements of the order, § 3(e)(1); monitoring agency compliance with the order, § 6(a)(8); designating a proposed or currently effective rule as a “major” rule subject to additional review and reporting requirements, §§ 3(b), 6(a), 7(c)(2); requiring reconsideration of major rules, § 7(c)(1); identifying duplica-tive, overlapping and conflicting rules and requiring interagency consultation to eliminate such duplication, overlap or conflict, § 6(a)(5); preparing and promulgating uniform standards for the identification of major rules and the development of RIAs, § 6(a)(2); establishing schedules for reviews of RIAs, § 3(i); developing procedures for estimating annual costs and benefits of agency regulations, § 6(a)(6); developing procedures for the performance of his own functions under the order, § 6(b); requiring agencies to provide and evaluate additional information in connection with regulations or with their regulatory agendas, §§ 5(b), 6(a)(3); requiring the publication of regulatory agendas in a prescribed form, § 5(b)(2); waiving the requirements of the order with respect to any existing or proposed major rule, § 6(a)(4); and preparing, in consultation with the agency, recommendations for changes in the agency’s statutes, § 6(a)(7). The Task Force was also entrusted with resolving any issues raised under the order or ensuring that they were presented to the President. See § 3(e)(1). One need not “strain” to construe this Executive Order as granting the Task Force substantial independent authority. See Maj. op. at 1297. Additional evidence in the record reveals that the President intended, and the Task Force provided, an active and independent force for regulatory reform. The President instructed the Chair of the Task Force to “take clear, constructive, and decisive action to restrain Federal regulation and to improve the regulatory process.” Memorandum for the Heads of Executive Departments and Agencies, Office of the Vice President, Mar. 25, 1981; Press Release, Office of the Vice President’s Press Secretary, Mar. 25, 1981 (Task Force “was instructed by the President to take action, not write reports”). By the Administration’s own accounts, the Task Force exercised its powers to the fullest, undertaking the final review of regulations of “truly major consequence,” Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the White House Press Secretary, Feb. 18, 1981; “directing]” federal agencies to propose new rules, Press Release, Office of the Press Secretary to the Vice President, Mar. 10, 1987; Press Release, Office of the Press Secretary to the Vice President, Jan. 29, 1988; “recommend[ing]” that federal agencies propose certain rules, Press Release, Office of the Vice President, July 14, 1987; “convenpng] working groups representing key agencies to develop appropriate legislative proposals and responses,” Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the Vice President, April 10, 1987; “designating] ... rules and regulatory programs for high-priority agency consideration,” Presidential Task Force on Regulatory Relief, Reagan Administration Regulatory Achievements, Aug. 11, 1983, at 5; id. at 78; Press Release, Office of the White House Press Secretary, Feb. 4, 1982; making “decisions” and taking “actions” to address the submissions it receives. Remarks of Vice President George Bush at the Presidential Task Force on Regulatory Relief Briefing, Aug. 12, 1981; and “target[ing]” existing regulations for in-depth agency consideration, id. The Task Force was directly involved not only with other executive agencies but with Congress and with the public. It “work[ed] actively with those in the Congress to achieve legislative change in the