interference with administrative decisionmaking. While we do not mean to suggest that your scheduled hearing comports entirely with the facts discussed in these cases, it is obvious that our direct participation presents potential legal hazards that could be avoided by a postponement until our final decision (or substituting staff for our appearance). For example, your letter of January 24, 1984, indicates you wish to probe "[t]he procedures employed by the Commission in reaching (our] decision. . ., including contentions that these procedures have been unfair and inadequate." We are aware that Chrysler Corporation has made such claims, which we believe to be entirely false, but it would appear impossible to discuss intelligently the "procedures" used to make our decision without explaining why, how, and on what basis the decision was made. The same observation can be made about the other areas set forth in your letter. The courts, including the United States Supreme Court, have recognized the difficulties posed by inquiry into the administrative decisionmaking process. They have repeatedly rejected efforts to probe the mental processes of administrative decisionmakers. See, e.g., United States v. Morgan, 313 U.S. 409, 422 (1941); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324, 325 (D.D.C. 1966), aff'd on opinion below, V.E.B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967). In a landmark decision dealing with the Commission, Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966), the court reversed a divestiture order found to have been unconstitutionally tainted by a Congressional committee interrogation of the Commission's Chairman. In its decision, the Court stated: when [a congressional] investigation focuses The court also stated that it was impermissible "to subject [a Commissioner] to a searching examination as to how and why he reached his decision." Id.. (emphasis supplied). Of equal relevance is American Public Gas Ass'n v. FPC, 567 F.2d 1016 (D.C. Cir. 1977), cert. denied, 435 U.S. 907 (1978), where the court, presented with a challenge premised on Pillsbury, stated that regardless of the nature of the pending action, Congressional intervention which occurs during the responsibility for resolving controversies within In SEC v. Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 126, 130 (3d Cir. 1981) (en banc), the court said that an administrative subpoena would not be enforced if the agency's decision to investigate was not "free from third-party political pressure," citing the prodding of "a powerful United States Senator" as the basis for agency action. See also Texas Medical Ass'n v. Mathews, 408 F. Supp. 303, 306 (W.D. Tex. 1976); D.C. Fed. of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972). Although certainly the Commission respects the legitimate need of Congress to fulfill its responsibilities, we feel there is a practical danger in the Commission's giving public testimony on these matters at this time. This danger is akin to that recognized by both Congress and the courts in seeking to protect "the 'frank discussion of legal or policy matters" that "might be inhibited if the discussion were made public . . . [with the result] that the 'decisions' and 'policies formulated' would be the poorer as a result." S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). See also H. R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). As noted in Sears, '[t]here are enough incentives as it is for playing To comply with your request and avoid the problems discussed above, we respectfully request postponement of the scheduled hearing until after the Commission has reached its final decision. If you disagree, we respectfully request that you permit members of the Commission staff to appear to discuss your areas of interest rather than press for appearance by the Commissioners who have the legal responsibility to make the final decision on this important matter. By direction of the Commission; Commissioner Bailey concurring for reasons given in the attached separate statement; Commissioner Pertschuk dissenting with a separate statement. James C: The Honorable John D. Dingell January 27, 1984 CONCURRING STATEMENT OF COMMISSIONER PATRICIA P. BAILEY CONCERNING COMMISSION TESTIMONY BEFORE CONGRESS ABOUT GM/TOYOTA I do not subscribe to much of the majority's legal analysis. Numerous cases hold that some degree of Congressional "intrusion" into administrative proceedings is a reality of the political process, and, indeed often the duty of Members of Congress as they see it--just as it is the duty of an administrative agency to give Congressional comments all the deference they deserve on the merits. See, e.g., S.E.C. v. Wheeling-Pittsburg Steel Corp., 648 F2d 118, 125 (3rd Cir., 1980). I do acknowledge, however, that the case law at least holds that agency action can be deemed invalid if it turns on improper outside pressure. Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) : Standard Oil Co. of California v. F.T.C., 596 F.2d 1381 (9th Cir. 1979); Pillsbury Co. v. F.T.C., 354 F.2d 9526 (5th Cir., 1966); Environmental Defense Fund Inc. v. Blum, 458 F. Supp. 650 (D.D.C. 1978). It is possible that, as a result of considerations raised during the public comment period, a Commissioner will see fit to revise his or her tentative conclusions about the legality of this joint venture. If Congressional hearings involving Commissioners take place during that period, and if the Commission's final decision were affected by that changed position, */ This case is the more current statement of the law in the D.C. Circuit, which the majority letter implies has not changed since D.C. Fed. of Civil Ass'ns. v. Volpe, a 1972 case. then it is possible, albeit remotely so, that the Commission's decision might be subject to challenge ascribed to Congressional pressure. Accordingly, it seems wise, even though not clearly required by law, to defer testimony by the Commissioners themselves until after the Commission has made its final decision. However, appearance by the Commission staff would be appropriate at this time. I would also add that it seems to me that it is by no means inevitable that improper questioning would occur during Congressional hearings with Commissioners, such that an appearance of impropriety could not be avoided. 36-253 0-84-2 DISSENTING STATEMENT OF COMMISSIONER PERTSCHUK CONCERNING COMMISSION TESTIMONY BEFORE CONGRESS ABOUT GM/TOYOTA JANUARY 27, 1984 I cannot join the majority of the Commission in objecting to testifying at this time before Congress regarding the GM/Toyota joint venture. Their letter to Chairman Florio misstates the applicable law, assumes that Congress and the Commission will act improperly rather than with good judgment, and ignores the strong interest we have in making sure the public and the Congress understand why and how the Commission reached its decision regarding the most important antitrust matter we have faced during this administration. The Commission relies on the Pillsbury case and others to argue that the Commission should not testify publicly on this matter and that Congress should not inquire about our decisionmaking during the public comment period on the tentatively accepted consent agreement. Our General Counsel even suggests that it would be improper for a Congressional committee to ask a Commissioner what outside parties he met with in deciding whether to challenge the joint venture. I cannot accept our General Counsel's interpretation of applicable standards. The Pillsbury case dealt with Congressional hearings on an ongoing adjudicative proceeding, when the Commission was obligated to consider only evidence presented on the record under adjudicatory rules. addition, members of the Congressional committee attacked a legal ruling made by the Commission in the middle of that adjudication. In |