Association of National Advertisers, Inc. v. Federal Trade Commission

627 F.2d 1151, 201 U.S. App. D.C. 165

Opinions

TAMM, Circuit Judge:

Plaintiffs, appellees here, brought an action in the United States District Court for the District of Columbia to prohibit Michael Pertschuk, Chairman of the Federal Trade Commission (Commission), from participating in a pending rulemaking proceeding concerning children’s advertising. The district court, citing this court’s decision in Cinderella Career & Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 425 F.2d 583 (D.C.Cir.1970), found that Chairman Pertschuk had prejudged issues involved in the rulemaking and ordered him disqualified. We hold that the Cinderella standard is not applicable to the Commission’s rulemaking proceeding. An agency member may be disqualified from such a proceeding only when there is a clear and convincing showing that he has an unalterably closed mind on matters critical to the disposition of the rulemaking. Because we find that the appellees have failed to demonstrate the requisite prejudgment, the order of the district court is reversed.

I

On April 27, 1978, the Commission issued a Notice of Proposed Rulemaking that suggested restrictions regarding television advertising directed toward children.¹ The decision to commence rulemaking under section 18 of the Federal Trade Commission (FTC) Act² was accompanied by a state ment setting forth “with particularity the reason for the proposed rule.” ³ The Commission explained that it had decided to propose a rule limiting children’s advertising after consideration of a staff report that discussed

facts which suggest that the televised advertising of any product directed to young children who are too young to understand the selling purpose of, or otherwise comprehend or evaluate, commercials may be unfair and deceptive within the meaning of Section 5 of the Federal Trade Commission Act, requiring appropriate remedy. The Report also discloses facts which suggest that the current televised advertising of sugared products directed to older children may be unfair and deceptive, again requiring appropriate remedy.

43 Fed.Reg. 17,967, 17,969 (1978) (footnotes omitted).⁴ The Commission invited interested persons to comment upon any issue raised by the staff proposal.⁵

On May 8, 1978, the Association of National Advertisers, Inc. (ANA), the American Association of Advertising Agencies (AAAA), the American Advertising Federation (AAF), and the Toy Manufacturers of America, Inc. (TMA) petitioned Chairman Pertschuk to recuse himself from participation in the children’s advertising inquiry. The petition charged that Pertschuk had made public statements concerning regulation of children’s advertising that demonstrated prejudgment of specific factual issues sufficient to preclude his ability to serve as an impartial arbiter. See Appendix (A.) at 11, 15. The charges were based on a speech Pertschuk delivered to the Action for Children’s Television (ACT) Research Conference in November 1977, on several newspaper and magazine articles quoting Chairman Pertschuk’s views on children’s television, on the transcript of a televised interview, and on a press release issued by the Commission during the summer of 1977.⁶

On July 13, 1978, Chairman Pertschuk declined to recuse himself from the proceeding. Pertschuk stated his belief that the disqualification standard appropriate for administrative adjudications did not apply to administrative rulemaking, id. at 57-58, and that, even if adjudicative criteria were relevant, his remarks did not warrant disqualification because they did not concern the petitioners in particular; rather, they addressed the “issue of advertising to children and the policy questions raised by it,” id. at 64 (emphasis in original). Five days later, the Commission, without Pertschuk participating, also determined that Pertschuk need not be disqualified. Id. at 65.

In August 1978, ANA, AAAA, AAF, and TMA petitioned the district court to declare that Chairman Pertschuk should be disqualified from participating in the children’s television proceeding. ANA, AAAA, AAF, and TMA also sought preliminary and permanent injunctions barring Pertschuk’s participation and an order requiring the remaining Commissioners to reconsider all matters previously decided in the inquiry. The plaintiffs introduced copies of three letters, sent by Chairman Pertschuk on the day after he delivered the ACT speech, as additional evidence of his alleged prejudgment. The letters accompanied a copy of the speech.

On September 8, 1978, the Kellogg Company (Kellogg), a food manufacturer that advertises on television programs regularly viewed by children, moved to intervene as a plaintiff. The district court granted the motion on October 4,1978. Two days later, Kellogg introduced as evidence in support of the motion for a preliminary injunction a copy of a letter sent by Chairman Pertschuk on November 17, 1977, to Donald Kennedy, Commissioner of the Food and Drug Administration.

On November 3, 1978, the district court ruled on cross-motions for summary judgment. The court, relying on Cinderella, found that Chairman Pertschuk “has prejudged and has given the appearance of having prejudged issues of fact involved in a fair determination of the Children’s Advertising rulemaking proceeding.” Accordingly, the .court granted the plaintiffs’ motion for summary judgment and ordered Pertschuk enjoined from further participation. Id. at 110. This appeal followed.⁷

II

Before we consider the merits of the district court’s decision, we pause at a procedural way station. The Commission asserts that the district court erred in considering the disqualification issue before the rulemaking proceeding had ended. As a general matter, of course, the exhaustion doctrine provides that challenges to agency action should not be heard until relevant administrative proceedings have been concluded. McKart v. United States, 395 U.S. 185, 194-95, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). This permits an administrative agency to develop a factual record, to apply its expertise to that record, and to avoid piecemeal appeals. Id. at 193-94, 89 S.Ct. 1657.

Application of the exhaustion doctrine, however, is not inflexible. In rare circumstances, this court has considered extraordinary prejudgment claims prior to final agency action. See Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (D.C.Cir.1962). See also Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 14, 467 F.2d 755, 768 (D.C.Cir.1972); Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 249-250, 450 F.2d 698, 710-11 (D.C.Cir.1971). The district court agreed to consider the present case prior to exhaustion of the administrative process on the basis of these decisions.

The exception to the exhaustion doctrine upon which the district court relied is extremely narrow. In SEC v. R. A. Holman & Co., 116 U.S.App.D.C. 279, 281-282, 323 F.2d 284, 286-87 (D.C.Cir.1963), for example, this court refused to review a disqualification contention when a commissioner whose impartiality was challenged denied that he had participated in earlier administrative proceedings. This court noted that resolution of the disqualification issue would necessitate prolonged evidentiary hearings and, therefore, we concluded that review of the due process claim should follow final agency action. Similarly, in Associated Press v. FCC, 145 U.S.App.D.C. 172, 183-184, 448 F.2d 1095, 1106-07 (D.C.Cir.1971), this court refused to review, prior to final administrative action, an insubstantial disqualification claim that involved conflicting factual contentions.

Although the doctrine that permits review of a disqualification claim prior to final agency action is restrictive, the present case falls within its bounds. As the Supreme Court has emphasized, application of the exhaustion doctrine “requires an understanding of its purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U.S. at 193, 89 S.Ct. at 1662. For the following reasons, we find that immediate review of the prejudgment claim will not thwart the purposes of exhaustion.

First, the challenge to Chairman Pertschuk’s further participation involves no disputed factual issues that demand the creation of a better administrative record. The agency has had an adequate opportunity to explain why Chairman Pertschuk need not be recused.⁸ Second, the issue involved in this case — the prejudgment standard required by due process for section 18 rule-making — is a pure question of law. The Commission can bring no particular expertise to bear on its determination. Consideration of this question of first impression will not necessarily permit future piecemeal attacks on administrative processes.⁹ Under the particular circumstances of this case, we therefore conclude that the appellees’ claim may be heard.

Judge Leventhal, in his concurring opinion, voices some concern over the jurisdiction of the district court to entertain this action. In their complaints, however, the plaintiffs alleged a violation of their procedural rights under the Constitution and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-706 (1976). Thus, the district court clearly had jurisdiction — i. e., power— to resolve the controversy under 28 U.S.C. § 1331(a) (1976) (cases arising under the Constitution and the laws of the United States) and 28 U.S.C. § 1337 (1976) (cases arising under statutes regulating commerce). See generally Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Once a plaintiff has alleged a nonfrivolous constitutional claim, the district court has jurisdiction under section 1331, and dismissal for want of jurisdiction is improper even if dismissal for failure to state a claim upon which relief could be granted would be proper. Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946). See 1 Moore’s Federal Practice ¶ 0.62[2.-2], at 664-65 (1977). Similarly, jurisprudential concerns, such as those embodied in the exhaustion doctrine, do not bear on whether a court has jurisdiction but only on whether it should exercise that jurisdiction.

This conclusion finds support in this court’s opinion in Wolf Corp. v. SEC, 115 U.S.App.D.C. 75, 317 F.2d 139 (D.C.Cir.1963) (Burger, J.). The plaintiff in that case had asked the district court to enjoin the Securities and Exchange Commission from holding a stop-order hearing. The district court dismissed the case not for want of jurisdiction but for failure to state a claim upon which relief could be granted. Id., at 77, 317 F.2d at 141. On appeal, this court affirmed because it believed the plaintiff should have exhausted its remedies before the agency first. In the process, the court stated expressly that the plaintiff’s allegation of a due process violation was sufficient to invoke the district court’s jurisdiction under 28 U.S.C. § 1337. It then agreed that dismissal for failure to state a valid claim, rather than for want of jurisdiction, was appropriate. Id. Moreover, like the case before us, Wolf arose under a proce dural regime that provided for review of final agency decisions in the courts of appeals, not the district courts. Compare 15 U.S.C. § 77i (1976) (review of SEC orders), cited in Wolf Corp. v. SEC, 115 U.S.App.D.C. at 77 n.6, 317 F.2d at 141 n.6, with 15 U.S.C. § 57a(e)(1)(A) (1976) (review of FTC rules). Thus, where the final agency decision may be reviewed does not by itself determine the court in which a plaintiff seeking interlocutory relief may pursue his cause of action.

Ill

The Commission attacks the substance of the district court’s decision on two grounds. First, it insists that the standard for disqualification of an administrative decision-maker in rulemaking differs from the standard in adjudication. The Commission’s view rests on the different purposes of rule-making and adjudication and on the longstanding rule that due process requirements are not the same in the two contexts. Second, the Commission asserts that under any disqualification standard, Chairman Pertschuk cannot be found to have prejudged issues in contravention of due process.

The appellees respond with two contentions. First, they support the district court’s conclusion that Cinderella Career & Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 425 F.2d 583 (D.C.Cir.1970), applies to Commission rulemaking under section 18 of the FTC Act. Although Cinderella involved an adjudication, the appellees claim that the existence of procedures in section 18 rulemaking proceedings that are not required in informal notice-and-comment rulemaking under section 553 of the Administrative Procedure Act, 5 U.S.C. § 553 (1976),¹⁰ mandates application of the standard set out in that case. Second, they argue that Chairman Pertschuk’s statements indicate prejudgment sufficient to bar him from further participation in the children’s advertising proceeding.

We are, therefore, called upon to resolve two questions: (1) What is the appropriate standard by which to decide prejudgment in the context of a section 18 proceeding? (2) Has Chairman Pertschuk made statements that demonstrate prejudgment under that standard?

A

Before we examine either the structure of section 18 or the content of Pertschuk’s statements, we review our decision in Cinderella Career & Finishing Schools, Inc. v. FTC. In Cinderella, we held that the standard for disqualifying an administrator in an adjudicatory proceeding because of prejudgment is whether “ ‘a disinterested observer may conclude that [the decisionmaker] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.’ ” 138 U.S.App.D.C. at 160, 425 F.2d at 591 (quoting Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959)). See Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 372, 336 F.2d 754, 760 (D.C.Cir.1964), vacated and remanded per curiam on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965). See also Kennecott Copper Corp. v. FTC, 467 F.2d 67, 80 (10th Cir. 1972), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974). This standard guarantees that the adjudicative hearing of a person facing administrative prosecution for past behavior is before a decisionmaker who has not prejudged facts concerning the events under review.

The facts of the Cinderella case illustrate application of the standard. The Commission charged that Cinderella Career College and Finishing Schools, Inc. (Cinderella) made false representations in its advertising and engaged in deceptive practices in contravention of section 5 of the FTC Act, 15 U.S.C. § 45 (1976).¹¹ For example, the Commission alleged that Cinderella advertised “courses of instruction which qualify students to become airline stewardesses” and that its graduates were “qualified to assume executive positions.” 138 U.S.App.D.C. at 153 n.1, 425 F.2d at 584 n.1. An administrative law judge ruled that the Commission had failed to prove that the acts and practices violated the FTC Act, and he dismissed the complaint. Id. at 153 n.2, 425 F.2d at 584 n.2. Complaint counsel appealed the administrative law judge’s decision to the full Commission.

While the appeal was pending before the Commission, Chairman Paul Rand Dixon spoke at the Government Relations Workshop of the National Newspaper Association and stated:

What kind of vigor can a reputable newspaper exhibit? . . . What standards are maintained on advertising acceptance? . . . What about carrying ads that offer college educations in five weeks, ... or becoming an airline’s hostess by attending a charm school? . . . Granted that newspapers are not in the advertising policing business, their advertising managers are savvy enough to smell deception when the odor is strong enough.

Id., at 158-159, 425 F.2d at 589-90. Six months later, the Commission, with Chairman Dixon participating, found that Cinderella neither awarded nor was capable of awarding academic degrees, and that it offered no course of instruction that would qualify students as airline stewardesses. School Services, Inc., 74 F.T.C. 920, 1022, 1031, 1035 (1968). The Commission concluded that these and other representations were false and misleading in violation of section 5 of the FTC Act and ordered Cinderella to cease and desist from such practices. Id. at 1040-42.

On review, we found that Chairman Dixon’s remarks gave “the appearance that he ha[d] already prejudged the case and that the ultimate determination of the merits [would] move in predestined grooves.” 138 U.S.App.D.C. at 159, 425 F.2d at 590. Accordingly, we held that Chairman Dixon’s participation in the proceeding required reversal and remand of the Commission’s order.

B

The district court in the case now before us held that “the standard of conduct delineated in Cinderella" governs agency decisionmakers participating in a section 18 proceeding. A. at 107. Section 18 authorizes the Commission to promulgate rules designed to “define with specificity acts or practices which are unfair or deceptive.”¹² Basically, it allows the Commission to enforce the broad command of section 5 of the FTC Act, which declares “unfair or deceptive acts or practices in or affecting commerce . . unlawful.”¹³ The district court ruled that a section 18 proceeding, notwithstanding the appellation rulemaking, “is neither wholly legislative nor wholly adjudicative.” According to the district court, the “adjudicative aspects” of the proceeding render Cinderella applicable. Id. at 106.

The appellees urge us to uphold the district court’s analysis of section 18. They emphasize two allegedly “adjudicatory aspects” of a section 18 proceeding: (1) interested persons are entitled to limited cross-examination of those who testify to disputed issues of material fact, see 15 U.S.C. § 57a(c)(1)(B) (1976), and (2) a reviewing court must set aside any rule not supported by substantial evidence in the rulemaking record taken as a whole, see 15 U.S.C. § 57a(e)(3)(A) (1976).¹⁴

The district court’s characterization of section 18 rulemaking as a “hybrid” or quasi-adjudicative proceeding, A. at 106, ignores the clear scheme of the APA. Administrative action pursuant to the APA is either adjudication or rulemaking. The two processes differ fundamentally in purpose and focus:

The object of the rule making proceeding is the implementation or prescription of law or policy for the future, rather than the evaluation of a respondent’s past conduct. Typically, the issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses would often be important, but rather to the policy-making conclusions to be drawn from the facts. . . . Conversely, adjudication is concerned with the determination of past and present rights and liabilities. Normally, there is involved a decision as to whether past conduct was unlawful, so that the proceeding is characterized by an accusatory flavor and may result in disciplinary action.

Attorney General’s Manual on the Administrative Procedure Act 14 (1947).¹⁵ See United States v. Florida East Coast Railway, 410 U.S. 224, 244-46, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973).

Adjudication and rulemaking may be conducted pursuant to either informal or formal procedures.¹⁶ Informal rulemaking requires the administrative agency to provide “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. § 553(c). Under section 706(2)(A), reviewing courts are required to uphold informal rulemaking decisions unless those decisions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1976).

Formal rulemaking is invoked when “rules are required by statute to be made on the record after opportunity for an agency hearing.” 5 U.S.C. § 553(c). Under sections 556 and 557 of the APA, 5 U.S.C. §§ 556-557 (1976), formal rulemaking must include a trial-type hearing at which a “party is entitled to present his case or defense or oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d). Section 706(2)(E) governs judicial review of formal rulemaking and requires a court to set aside a rule that is “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(E).

Formal adjudication is governed by section 554 of the APA and arises in “every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. § 554(a) (1976). Section 554 incorporates the procedural requirements of sections 556 and 557 and affords parties to a formal adjudication the right to present evidence and to conduct cross-examination. 5 U.S.C. § 554(c)-(d). Judicial review of formal adjudication, like that of formal rulemaking, is governed by the substantial evidence standard.¹⁷

The foregoing descriptions merely outline the basic parameters of administrative action. Congress has, in the Magnuson-Moss Warranty — Federal Trade Commission Improvement (Magnuson-Moss) Act § 202(a), 15 U.S.C. § 57a (1976), and elsewhere,¹⁸ enacted specific statutory rulemaking provisions that require more procedures than those of section 553 but less than the full procedures required under sections 556 and 557.¹⁹ The presence of procedures not mandated by section 553, however, does not, as the appellees urge, convert rulemaking into quasi-adjudication. The appellees err by focusing on the details of administrative process rather than the nature of administrative action.

Our decision in Hercules, Inc. v. EPA, 194 U.SApp.D.C. 172, 598 F.2d 91 (D.C.Cir.1978), illustrates that the difference between rulemaking and adjudication is not affected by varying procedural practices. In that case, although we reviewed decisions of the Environmental Protection Agency under the substantial evidence standard, id., at 187, 598 F.2d at 106; see Environmental Defense Fund v. EPA (PCBs), 194 U.S.App.D.C. 143, 163-164, 598 F.2d 62, 82-83 (D.C.Cir.1978), we refused to find that the agency proceeding was adjudicatory. The Environmental Protection Agency was promulgating policy-based standards of general import and, thus, was engaged in rulemaking. Similarly, the Commission’s children’s advertising inquiry is designed to determine whether certain acts or practices will, in the future, be considered to contravene the FTC Act. The proceeding is not adjudication or quasi-adjudication. It is a clear exercise of the Commission’s rulemaking authority.

C

The appellees also argue that we must apply Cinderella because it involves a factual prejudgment similar to the one now before us. In Cinderella, Chairman Dixon made statements that reflected prejudgment that Cinderella Career & Finishing Schools, Inc. had engaged in certain acts. In this case, the appellees accuse Chairman Pertschuk of prejudging issues of material fact in the children’s television proceeding. We find that the appellees’ argument belies a misunderstanding of the factual basis of rules.

The factual predicate of a rulemaking decision substantially differs in nature and in use from the factual predicate of an adjudicatory decision. The factual predicate of adjudication depends on ascertainment of “facts concerning the immediate parties — who did what, where, when, how, and with what motive or intent.” 2 K. Davis, Administrative Law Treatise, § 15.-03, at 353 (1958). By contrast, the nature of legislative fact is ordinarily general, without reference to specific parties. Adjudicative and legislative facts are also used differently:

[AJdjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. . Legislative facts are the facts which help the tribunal determine the content of law and of policy and help the tribunal to exercise its judgment or discretion in determining what course of action to take.

Id.20 Thus, legislative facts are crucial to the prediction of future events and to the evaluation of certain risks, both of which are inherent in administrative policymaking.

The case law demonstrates that the factual component of generalized rulemaking cannot be severed from the pure policy aspects of the rule.²¹ FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978), is illustrative. There, the Supreme Court reviewed the Federal Communication Commission’s decision to order prospective divestiture in cases of newspaper-television cross-ownership. The agency had based its decision on an assessment of the relevant market conditions. The Court, upholding the administrative action, stated that “complete factual support in the record for the [Federal Communication] Commission’s judgment or prediction is not possible or required; ‘a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency.’ ” Id. at 814, 98 S.Ct. at 2122 (quoting FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961)). See American Airlines, Inc. v. CAB, 123 U.S. App.D.C. 310, 359 F.2d 624 (D.C.Cir.1966) (en banc).²²

Because legislative facts combine empirical observation with application of administrative expertise to reach generalized conclusions, they need not be developed through evidentiary hearings. See id., at 318-319, 359 F.2d at 632-33.²³ To the contrary, however, “[w]here adjudicative, rather than legislative, facts are involved, the parties must be afforded a hearing to allow them an opportunity to meet and to present evidence.” Alaska Airlines, Inc. v. CAB, 178 U.S.App.D.C. 116, 122, 545 F.2d 194, 200 (D.C.Cir.1976) (footnote omitted). This dis tinction has been established in judicial, as well as administrative, processes.²⁴

Evidentiary hearings, although not necessary to determine legislative facts, nevertheless may be helpful in certain circumstances. For example, Congress, when it enacted the Magnuson-Moss Act, recognized that special circumstances might warrant the use of evidentiary proceedings in determining legislative facts. Under section 18(c)(1)(B)²⁵ and section 18(c)(2)(B),²⁶ the Commission must conduct a hearing, with a limited right of cross-examination, when it resolves disputed issues of material fact. The legislative history of the MagnusonMoss Act states that “[t]he only disputed issues of material fact to be determined for resolution by the Commission are those issues characterized as issues of specific fact in contrast to legislative fact.” H.R. Rep.No. 93-1606, 93d Cong., 2d Sess. 33 (1974) (Conference Report).

Although neither the Conference Report nor subsequent congressional debate amplify the term “specific fact,” its genesis can be traced to a recommendation of the Administrative Conference of the United States (ACUS).²⁷ Prior to congressional action on the Magnuson-Moss Act, ACUS promulgated Recommendation No. 72-5, which suggested that Congress should not require trial-type procedures “for making rules of general applicability, except that it may sometimes appropriately require such procedures for resolving issues of specific fact.” 1 C.F.R. § 305.72-5 (1974). In a letter dated July 27, 1973, then-ACUS Chairman Antonin Scalia answered Congressman Moss’s request for a definition of the term “specific fact”:

Conference Recommendation 72-5 is addressed exclusively to agency rulemaking of general applicability. In such a proceeding, almost by definition, adjudicative facts are not at issue, and the agency should ordinarily be free to, and ordinarily would, proceed by the route of written comments, supplemented, perhaps, by a legislative-type hearing. Yet there may arise occasionally in such rule-making proceedings factual issues which, though not adjudicative, nevertheless justify exploration in a trial-type format— because they are sufficiently narrow in focus and sufficiently material to the outcome of the proceeding to make it reasonable and useful for the agency to resort to trial-type procedure to resolve them. These are what the Recommendation refers to as issues of specific fact.²⁸

A review of this and subsequent ACUS correspondence demonstrates that the term “specific fact” refers to a category of legislative fact, the resolution of which may be aided by the type of adversarial procedures inherent in an evidentiary proceeding with limited cross-examination. See Citizens for Allegan County v. FPC, 134 U.S.App.D.C. 229, 233, 414 F.2d 1125, 1129 (D.C.Cir.1969).²⁹ Nothing in the legislative history or background of section 18 suggests, however, that Congress believed that the use of evidentiary hearings transformed the nature of the proceedings from rulemaking to adjudication or altered the factual predicate of rulemaking from legislative to adjudicative fact. Accordingly, the appellees’ contention that the Cinderella standard must be applied to section 18 rulemaking because it invokes the same type of factual judgments as Commission adjudication is simply incorrect.

D

Our conclusion that neither the procedures nor the factual predicate of section 18 rulemaking converts it into adjudication is supported by United States v. Florida East Coast Railway, 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In that case, the Su preme Court held, over the protests of two dissenting Justices, that an Interstate Commerce Commission ratemaking proceeding was rulemaking. The dissent maintained that the rate order was “adjudicatory in the sense that [it] determine[d] the measure of the financial responsibility of one road for its use of the rolling stock of another road.” Id. at 252, 93 S.Ct. at 824 (Douglas, J., joined by Stewart, J., dissenting). The dissent emphasized that the agency decision was based on “evidential facts,” id. at 254, 93 S.Ct. at, and that it could “have devastating effects on a particular [railroad] line,” id. at 256, 93 S.Ct. at 826. Nevertheless, the Court found that the proceeding was rulemaking because the agency final order was applicable to all common carriers rather than any particular railroad. The Court explained that the agency had predicated its decision on “factual inferences . . . used in the formulation of a basically legislative-type judgment, for prospec-. tive application only, rather than in adjudicating a particular set óf disputed facts.” Id. at 246, 93 S.Ct. at 821.

The same analysis applies to section 18 rulemaking. A section 18 proceeding is directed to all members of an affected industry and is based on legislative fact. Even when evidentiary procedures are employed in the formulation of specific fact, the product of those procedures is “used in the formulation of a basically legislative-type judgment.” Id. Although we recognize that the line between rulemaking and adjudication “may not always be a bright one,” id. at 245, 93 S.Ct. at 821, we have no doubt that section 18 proceedings fall clearly on the rulemaking side of the “recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules ... on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other.” Id. Accordingly, we now decide the standard of disqualification applicable in a section 18 rulemaking proceeding.

IV

A

Had Congress amended section 5 of the FTC Act to declare certain types of children’s advertising unfair or deceptive, we would barely pause to consider a due process challenge. No court to our knowledge has imposed procedural requirements upon a legislature before it may act. Indeed, any suggestion that congressmen may not prejudge factual and policy issues is fanciful. A legislator must have the ability to exchange views with constituents and to suggest public policy that is dependent upon factual assumptions. Individual interests impinged upon by the legislative process are protected, as Justice Holmes wrote, “in the only way that they can be in a complex society, by [the individual’s] power, immediate or remote, over those who make the rule.” Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915).

Congress chose, however, to delegate its power to proscribe unfair or deceptive acts or practices to the Commission because “there were too many unfair practices for it to define.” S.Rep.No. 597, 63d Cong., 2d Sess. 13 (1914).³⁰ In determining the due process standards applicable in a section 18 proceeding, we are guided by its nature as rulemaking.³¹ When a proceeding is classified as rulemaking, due process ordinarily does not demand procedures more rigorous than those provided by Congress. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 & n. 1, 542 & n. 16, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Congress is under no requirement to hold an evidentiary hearing prior to its adoption of legislation, and “Congress need not make that requirement when it delegates the task to an administrative agency.” Bowles v. Willingham, 321 U.S. 503, 519, 64 S.Ct. 641, 649, 88 L.Ed. 892 (1944) (citing Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915)). Accordingly, we must apply a disqualification standard that is consistent with the structure and purposes of section 18.

Congress regarded the authority to promulgate rules pursuant to section 18 as an “important power by which the Commission can fairly and efficiently pursue its important statutory mission.” H.R.Rep.No. 93-1606, supra at 31.³² Through rulemaking, the Commission may allocate resources more efficiently, act with greater speed, and give specific notice to industries of the scope of section 5. See National Petroleum Refiners Association v. FTC, 157 U.S.App.D.C. 83, 101-102, 482 F.2d 672, 690-91 (D.C.Cir.1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974).³³ More important, rulemaking allows an agency to gather information and views that might be irrelevant to the narrowly focused concerns of adjudication:

[Utilizing rule-making procedures opens up the process of agency policy innovation to a broad range of criticisms, advice and data that is ordinarily less likely to be forthcoming in adjudication. Moreover, the availability of notice before promulgation and wide public participation in rule-making avoids the problem of singling out a single defendant among a group of competitors for initial imposition of a new and inevitably costly legal obligation.

Id. at 683.

In determining the type of rulemaking procedures to be employed by the Commission, Congress sought “to avoid rigid or cumbersome procedures that could involve undue costs and delay.” H.R.Rep.No.93-1606, supra at 33. To this end, Congress gave the Commission authority to limit rebuttal and cross-examination. In so acting, Congress heeded the advice of ACUS, which, when asked to comment upon the House proposal, warned that requiring “trial-type procedures . . . [in] rulemaking of general applicability [may] produce a virtual paralysis of the administrative process.” ³⁴

Although Congress refused to subject section 18 proceedings to formal rulemaking requirements, it did order use of procedures not required in informal rulemaking under the APA.³⁵ Congress intended these addi tional procedures “to improve the quality of information available to the Commission,” H.R.Rep.No. 93-1606, supra at 33, and to compel reexamination of the proposed rule in light of the arguments adduced during the comment period. Incorporation of this information into a rulemaking record also allows a reviewing court to exercise meaningful supervision over the Commission’s decision.

B

We never intended the Cinderella rule to apply to a rulemaking procedure such as the one under review. The Cinderella rule disqualifies a decisionmaker if “ ‘a disinterested observer may conclude that [he] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.’ ” 138 U.S.App.D.C. at 160, 425 F.2d at 591 (quoting Gilligan, Will & Co. v. SEC, 267 F.2d at 469). As we already have noted,³⁶ legislative facts adduced in rule-making partake of agency expertise, prediction, and risk assessment. In Cinderella, the court was able-to cleave fact from law in deciding whether Chairman Dixon had prejudged particular factual issues. In the rulemaking context, however, the factual component of the policy decision is not easily assessed in terms of an empirically verifiable condition. Rulemaking involves the kind of issues “where a month of experience will be worth a year of hearings.”³⁷ Application of Cinderella’s strict law-fact dichotomy would necessarily limit the ability of administrators to discuss policy questions.

The legitimate functions of a policymaker, unlike an adjudicator, demand interchange and discussion about important issues. We must not impose judicial roles upon administrators when they perform functions very different from those of judges. As Professor Glen O. Robinson, a former member of the Federal Communications Commission, has commented:

Although members of agencies such as the FCC certainly do perform significant judicial functions in deciding individual cases, they perform even more tasks of a legislative or an executive character. When the FCC, for example, promulgated regulations barring common ownership of local newspapers and broadcast stations, it performed a legislative task, pure and simple. In reaching the decision, the Commission was neither bound by, nor expected to conform to, the confining procedures or standards of a court. Why then should the decisionmakers be stamped from a judicial cast? Insofar as the agency is delegated broad legislative powers and responsibilities, would it not be at least as appropriate to measure agency members against standards used to evaluate legislators? Such standards would place agency members on a better standing with respect to judges and would create an entirely new frame of reference for assessing agency performance. The supremacy of carefully reasoned principle — the supposed ideal of judicial decision — necessarily would yield to the dictates of political compromise and expediency, which are the accepted hallmarks of legislative action. Correspondingly, the standard for evaluating the composition of the agencies would shift from an emphasis on professional training to an emphasis on representativeness.

Robinson, The Federal Communications Commission: An Essay on Regulatory Watchdogs, 64 Va.L.Rev. 169, 185-86 (1978) (footnotes omitted).³⁸

The Cinderella view of a neutral and detached adjudicator is simply an inapposite role model for an administrator who must translate broad statutory commands into concrete social policies.³⁹ If an agency official is to be effective he must engage in debate and discussion about the policy matters before him. As this court has recognized before, “informal contacts between agencies and the public are the ‘bread and butter’ of the process of administration.” Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. 142, 190, 567 F.2d 9, 57 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977).⁴⁰

Our view is consistent with two Supreme Court opinions that detail prejudgment standards for administrators who speak out on public policy matters. In Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), the Court held that the due process clause did not bar a local school board, which was negotiating renewal of a collective-bargaining agreement with teachers, from dismissing teachers who were engaged in an illegal strike following failure of the contract negotia tions.⁴¹ The Court stated that a decision-maker need not be disqualified “simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” Id. at 493, 96 S.Ct. at 2314 (quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)).

The Court’s decision in FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948), is likewise instructive. There, a trade association urged that the Commission be disqualified from deciding whether a trade practice violated the antitrust laws because its members previously had endorsed the view before both the Congress and the President that the practice was the equivalent of illegal price-fixing. The Court rejected the trade association’s claim because, inter alia, the earlier statements “did not necessarily mean that the minds of [Commission] members were irrevocably closed.” Id. at 701, 68 S.Ct. at 803.⁴²

A similar standard is applicable to section 18 rule-making. Section 18 outlines a process by which the Commission must form a preliminary view on a proposed rule, must hear comment from concerned parties, and in some cases, must hold trial-type proceedings before deciding whether to promulgate a rule. There is no doubt that the purpose of section 18 would be frustrated if a Commission member had reached an irrevocable decision on whether a rule should be issued prior to the Commission’s final action. At the same time, the Commission could not exercise its broad policymaking power under section 18 if administrators were unable to discuss the wisdom of various regulatory positions. That discussion necessarily involves the broad, general characterizations of reality that we label legislative fact.

Accordingly, a Commissioner should be disqualified only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding. The “clear and convincing” test is necessary to rebut the presumption of administrative regularity. See, e. g., Withrow v. Larkin, 421 U.S. 35, 55, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 204, 598 F.2d 91, 123 (D.C.Cir.1978). The “unalterably closed mind” test is necessary to permit rulemakers to carry out their proper policy-based functions while disqualifying those unable to consider meaningfully a section 18 hearing.⁴³

V

We view the statements offered as grounds for disqualification as a whole to discern whether they evidence a clear and convincing showing that Chairman Pertschuk has an unalterably closed mind on matters critical to the children’s television proceeding. The most important evidence submitted by the appellees is a speech Chairman Pertschuk delivered in November 1977 to the ACT Research Conference. The other materials generally derive from this speech.⁴⁴

The speech focused on whether section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices,” may be applicable to children’s advertising. Pertschuk first asserted that children have only a minimal understanding of the nature of television commercials and are unable to distinguish between advertising and other forms of information. He quoted a finding by the Federal Communications Commission that “many children do not have the sophistication or experience needed to understand that advertising is not just another form of informational programming.” ⁴⁵

Pertschuk then set out relevant legal principles. He quoted a Supreme Court opinion that gave the Commission wide-ranging discretion to declare a trade practice unfair.⁴⁶ He noted the legal recognition of children’s lack of evaluative capacity and the concomitant protection for children built into commercial and tort law. Among the doctrines he mentioned were the unenforeeability of a contract signed by a child, the prohibition against selling children otherwise legal goods, such as liquor and cigarettes, the bar against children leaving school or driving a car, and the “attractive nuisance” rule of liability, which holds persons who maintain conditions on their property that are likely to entice small children responsible for harm to those children.

Pertschuk continued by discussing the effects of advertising on children. He explained that “children are not adults in miniature. Instead, they bring to advertising a special perspective and sensibility — a credulousness that comes from inexperience — which advertisers exploit.”⁴⁷ He stated that sugared foods may be harmful to children and that children may not understand the health problems, like tooth decay, that can result from excessive consumption of sugared products: “Children lack the judgment and experience to see that something that looks good to them in the short run can hurt them in the long run.”⁴⁸ He suggested that children’s advertising might be deceptive because it highlights the general desirability of sugared foods without providing material information on the health risks.

Finally, Pertschuk noted that any action taken against children’s advertising would bring opposition from affected economic interests. He said that “[i]f the Commission is to reach sound and reasoned judgments, it must also hear from the parents, the teachers, the pediatricians, the dentists, those health and education specialists on whom we rely for the advocacy of our children’s best interest.” ⁴⁹ Pertschuk concluded by stating: “[W]e must be rigorous and open-minded in our analysis of both law and fact.”⁵⁰

Chairman Pertsehuk’s remarks, considered as a whole, represent discussion, and perhaps advocacy, of the legal theory that might support exercise of the Commission’s jurisdiction over children’s advertising. The mere discussion of policy or advocacy on a legal question, however, is not sufficient to disqualify an administrator.⁵¹ To present legal and policy arguments, Pertschuk not unnaturally employed the factual assumptions that underlie the rationale for Commission action. The simple fact that the Chairman explored issues based on legal and factual assumptions, however, did not necessarily bind him to them forever. Rather, he remained free, both in theory and in reality, to change his mind upon consideration of the presentations made by those who would be affected.

In outlining his legal theory of “unfairness,” Pertschuk suggested that children might be harmed by overconsumption of sugared products and that they might not be able to comprehend the purpose of advertising. Insofar as these conclusions are ones of fact, they are certainly of legislative fact. Neither conclusion bears on the particular activities of any specific advertiser or food manufacturer or makes reference to the health or comprehension of any particular child. These conclusions are broad and general, far removed from the narrow, detailed facts that were at the heart of the Cinderella case.⁵²

Together, the two conclusions tend to show that children may be “injured” by the advertising of highly sugared products. The Commission has stated that it will consider three factors in deciding whether a trade practice is unfair: whether the action is (1) offensive to public policy as established by some legal doctrine, (2) immoral, and (3) substantially injurious to consumers.⁵³ Chairman Pertschuk scarcely could have discussed the “unfairness” doctrine without assuming for the purpose of discussion that some injury might result from the trade practice in question.

We also note that Chairman Pertschuk made the challenged comments before the Commission adopted its notice of proposed rulemaking. This court has never suggested that the interchange between rulemaker and the public should be limited prior to the initiation of agency action.⁵⁴ The period before the Commission first decides to take action on a perceived problem is, in fact, the best time for a rulemaker to engage in dialogue with concerned citizens. Discussion would be futile, of course, if the administrator could not test his own views on different audiences. Moreover, as we stated earlier,⁵⁵ an expression of opinion prior to the issuance of a proposed rulemaking does not, without more, show that an agency member cannot maintain an open mind during the hearing stage of the proceeding.

Indeed, section 18 in effect requires the Commission to formulate tentative judgments on suggested rules. Before the Commission initiates rulemaking proceedings, it must “publish a notice of proposed rulemaking stating with particularity the reason for the proposed rule prior to the comment stage of the' proceeding.” 15 U.S.C. § 57a(b). The Conference Committee on the Magnuson-Moss Act referred to the period following this notice as one during which affected parties could “challenge the factual assumptions on which the Commission is proceeding and to show in what respect these assumptions are erroneous.” H.R.Rep.No. 93-1606, supra at 33. Congress intended for the Commission to develop proposals that subsequently would be published and discussed openly. To perform this task intelligently necessarily involves making tentative conclusions of fact, even if they later are open to public challenge.

In sum, we hold that the materials adduced by the appellees are insufficient to rebut the strong presumption of administrative regularity.⁵⁶ The materials, as a whole, merely demonstrate that Pertschuk discussed a legal theory by which the Commission could adopt a rule, if circumstances warranted. The statements do not demonstrate that Chairman Pertschuk is unwilling or unable to consider rationally argument that a final rule is unnecessary because children are either unharmed by sugared products or are able to understand advertising. The appellees have failed to make a clear and convincing showing that Chairman Pertschuk has an unalterably closed mind on matters critical to the children’s television proceeding.

VI

The appellees have a right to a fair and open proceeding; that right includes access to an impartial decisionmaker. Impartial, however, does not mean uninformed, unthinking, or inarticulate. The requirements of due process clearly recognize the necessity for rulemakers to formulate policy in a manner similar to legislative action. The standard enunicated today will protect the purposes of a section 18 proceeding, and, in so doing, will guarantee the appellees a fair hearing.

We would eviscerate the proper evolution of policymaking were we to disqualify every administrator who has opinions on the correct course of his agency’s future action. Administrators, and even judges, may hold policy views on questions of law prior to participating in a proceeding. The factual basis for a rulemaking is so closely intertwined with policy judgments that we would obliterate rulemaking were we to equate a statement on an issue of legislative fact with unconstitutional prejudgment. The importance and legitimacy of rulemaking procedures are too well established to deny administrators such a fundamental tool.

Finally, we eschew formulation of a disqualification standard that impinges upon the political process. An administrator’s presence within an agency .reflects the political judgment of the President and Senate. As Judge Prettyman of this court aptly noted, a “Commission’s view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes.” Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 238, 230 F.2d 204, 206 (D.C.Cir.), cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956). We are concerned that implementation of the Cinderella standard in the rulemaking context would plunge courts into the midst of political battles concerning the proper formulation of administrative policy. We serve as guarantors of statutory and constitutional rights, but not as arbiters of the political process. Accordingly, we will not order the disqualification of a rulemaker absent the most compelling proof that he is unable to carry out his duties in a constitutionally permissible manner.

Reversed.

Footnotes

1

. The proposed rule would

(a) Ban all televised advertising for any product which is directed to, or seen by, audiences composed of a significant proportion of children who are too young to understand the selling purpose of or otherwise comprehend or evaluate the advertising;

(b) Ban televised advertising for sugared food products directed to, or seen by, audiences composed of a significant proportion of older children, the consumption of which products poses the most serious dental health risks;

(c) Require televised advertising for sugared food products not included in Paragraph (b), which is directed to, or seen by, audiences composed of a significant proportion of older children, to be balanced by nutritional and/or health disclosures funded by advertisers.

43 Fed.Reg. 17,967, 17,969 (1978).

2

. 15 U.S.C. § 57a (1976). Congress enacted § 18 in 1975 as part of the Magnuson-Moss Warranty — Federal Trade Commission Im provement (Magnuson-Moss) Act, Pub.L.No. 93-637, § 202(a), 88 Stat. 2193 (1975).

3

. 15 U.S.C. § 57a(b) (1976).

4

. Petitions received from Action for Children’s Television (ACT) and the Center for Science in the Public Interest prompted the Commission’s decision to begin rulemaking. Each petition asked the Commission to promulgate rules limiting the advertising on children’s television of certain highly sugared products. In support of the relief requested, each petition presented evidence on the amount of televised advertising for sugared products directed toward children, the limited ability of young children to recognize the commercial intent of such messages, and the health risks attendant to consumption by children of excess amounts of sugar. 43 Fed.Reg. at 17,968-69.

5

. Id. at 17,969.

6

. See note 56 infra.

7

. The Washington Legal Foundation and seven independent regulatory agencies appeared as amici curiae before this court.

8

. When the Commission rejected the disqualification claim, the appellees had not yet presented as evidence of prejudgment four letters later introduced before the district court. See pp. --- of 201 U.S.App.D.C., pp. 1155-1156 of 627 F.2d supra. The Commission did, however, have the opportunity to analyze the appellees’ legal theory and to examine the bulk of their evidence. We do not view the presence of the letters, which merely repeat the views expressed in the ACT speech, as having decisional significance. See note 56 infra.

9

. In this sense, review of the Commission’s decision not to recuse Chairman Pertschuk is analogous to the interlocutory review of a district court order permitted under 28 U.S.C. § 1292(b) (1976) when the “order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.” See also Kennedy, The Federal Courts Improvement Act: a first step for Congress to take, 63 Judicature 8, 12 (1979) (proposed S. 678 balances need for finality against desirability of hearing interlocutory appeals by allowing “immediate appeals in cases of ‘extraordinary importance,’ with the Court of Appeals deciding — even in the absence of district court certification — whether or not to entertain an appeal”).

Similarly, appellate courts reviewing claims that a district court judge improperly refused to recuse himself, see 28 U.S.C. §§ 144, 455 (1976), have demonstrated sensitivity to the expeditious hearing of prejudgment cases. Although a refusal to recuse is not appealable as a final order, commentators have detected a liberal trend toward use of mandamus to consider disqualification claims. See 13 C. Wright & A. Miller, Federal Practice and Procedure: Jurisdiction § 3553, at 387 (1975); 9 Moore’s Federal Practice 1] 110.13[10], at 187-88 (2d ed. 1975).

10

. See note 35 infra.

11

. Section 5(a)(1) provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” 15 U.S.C. § 45(a)(1) (1976). The MagnusonMoss Act amended § 5 by adding the words “or affecting.” Pub.L.No. 93-637, § 201(a), 88 Stat. 2193 (1975).

12

. 15 U.S.C. § 57a(a)(1) (1976).

13

. 15 U.S.C. § 45(a)(1) (1976).

14

. The appellees also argue that the principal characteristic of adjudicative proceedings which necessitates the Cinderella prejudgment standard is the requirement (which traditionally has applied to judges but not to legislators) that the ultimate decision be based upon record evidence. This, of course, is one of the most significant characteristics which the Commission’s adjudica tive proceedings and its Section 18 trade regulation rulemaking proceedings have in common.

Brief of Intervening Plaintiff-Appellee Kellogg Company at 38. The appellees’ attempt to equate rulemaking with adjudication on the basis of a record requirement would have more force, however, if § 18 demanded rulemaking decisions to be based on a closed record, as are adjudicatory determinations. See 5 U.S.C. § 556(e) (1976). Section 18, in fact, provides that for purposes of judicial review the “rule-making record” includes “any . information which the Commission considers relevant to such rule.” 15 U.S.C. § 57a(e)(1)(B) (1976). Section 18 thus does not prohibit reliance on material not adduced during the rule-making proceedings; it simply requires the Commission to acknowledge that reliance.

15

. The Attorney General’s Manual on the Administrative Procedure Act is a contemporaneous interpretation of the Administrative Procedure Act. Because of “the role played by the Department of Justice in drafting the legislation,” it deserves some deference. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 546, 98 S.Ct. 1197, 1213, 55 L.Ed.2d 460 (1978) (footnote omitted).

16

. See Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 40 n.14 (1975).

17

. To complete the symmetry, informal adjudication occurs when an agency determines the rights or liabilities of a party in a proceeding to which § 554 does not apply. See, e. g., Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam); Aircraft Owners & Pilots Ass’n v. FAA, 195 U.S.App.D.C. 151, 155-56, 600 F.2d 965, 969-70 (D.C.Cir.1979).

18

. See, e. g., Consumer Product Safety Act § 9, 15 U.S.C. § 2058 (1976); Toxic Substances Control Act § 6, 15 U.S.C. § 2605 (1976); Occupational Safety and Health Act of 1970, § 6, 29 U.S.C. § 655 (1976); Department of Energy Organization Act § 501, 42 U.S.C. § 7191 (Supp. I 1977); Clean Air Act Amendments of 1977, § 305, 42 U.S.C. § 7607 (Supp. I 1977). See also 1 K. Davis, Administrative Law Treatise § 6:9 (2d ed. 1978).

19

. Section 18, for example, affords a more limited right of cross-examination than § 556. Compare 15 U.S.C. § 57a(c) with 5 U.S.C. § 556(d). See H.R.Rep.No. 93-1606, 93d Cong., 2d Sess. 33 (1974) (Conference Report).

20

. See Davis, Judicial Notice, 55 Colum.L.Rev. 945, 952-59 (1955); Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 404-07 (1942).

The distinction between legislative and adjudicative facts has been widely accepted both within and without this circuit. See, e. g., Drummond v. Fulton County Dep’t of Family & Children’s Servs., 563 F.2d 1200, 1210 (5th Cir. 1977) (en banc); Alaska Airlines, Inc. v. CAB, 178 U.S.App.D.C. 116, 122, 545 F.2d 194, 200 (D.C.Cir.1976); Zamora v. Immigration & Naturalization Serv., 534 F.2d 1055, 1062 & n.4 (2d Cir. 1976); Independent Bankers Ass’n v. Federal Reserve Sys., 170 U.S.App.D.C. 278, 291-294, 516 F.2d 1206, 1219-22 (D.C.Cir.1975); Washington Util. & Transp. Comm’n v. FCC, 513 F.2d 1142, 1165 (9th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975); American Bancorporation v. Federal Reserve Sys., 509 F.2d 29, 36-37 (8th Cir. 1974); Thompson v. Washington, 162 U.S.App.D.C. 39, 51 n.4, 497 F.2d 626, 638 n.4 (D.C.Cir.1973); SEC v. Frank, 388 F.2d 486, 491-92 (2d Cir. 1968); Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966); Dayco Corp. v. FTC, 362 F.2d 180, 186 (6th Cir. 1966); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (D.C.Cir.1966) (en banc).

21

. See also Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 409-10, 423 n.112, 541 F.2d 1, 37-38, 51 n.112 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976); Industrial Union Dep’t, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 339, 499 F.2d 467, 475 (D.C.Cir.1974).

22

. In American Airlines, we reviewed a Civil Aeronautics Board (Board) decision that allowed all-cargo airlines — but not passenger airlines — to offer reserved cargo space at reduced rates. The Board had designed the reserved space service in an effort to increase the commercial use of airlines. The Board feared that the success of the program would be threatened, and the financial strength of all-cargo airlines weakened, if passenger airlines were to offer the service as well. Further, the Board assumed that the financial effect of the new program on all-passenger airlines would not be significant. 123 U.S.App.D.C. at 312-313, 359 F.2d at 626-627. The court deemed this last finding a “ ‘legislative’ ” fact and rejected an attack on the Board’s position explaining: “It is the kind of issue involving expert opinions and forecasts, which cannot be decisively resolved by testimony. It is the kind of issue where a month of experience will be worth a year of hearings.” Id. at 319, 359 F.2d at 633.

23

. See also Independent Bankers Ass'n v. Federal Reserve Sys., 170 U.S.App.D.C. 278, 291-294, 516 F.2d 1206, 1219-22 (D.C.Cir.1975). See generally Zamora v. Immigration & Naturalization Serv., 534 F.2d 1055, 1062 (2d Cir. 1976).

24

. The Advisory Committee for the Federal Rules of Evidence embraced the general rule that legislative facts need not be developed through evidentiary hearings. Rule 201 of the Federal Rules of Evidence governs judicial notice of adjudicative facts. No evidentiary rule refers to judicial notice of legislative facts because, as the Advisory Committee noted, “any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level” are inappropriate to judicial access to legislative facts. Fed.R.Evid. 201 note.

Courts consistently have considered legislative facts that were not the product of trial-type proceedings. In Muller v. Oregon, 208 U.S. 412, 421-22, 28 S.Ct. 324, 326, 52 L.Ed. 551 (1908), for example, the Supreme Court took “judicial cognizance of all matters of general knowledge” in upholding a state law that prohibited women from working more than ten hours a day in a laundry. The Court principally relied upon a brief, filed by Louis Brandéis, that set forth support for the proposition that long working hours were physically dangerous to women. For other examples of judicial notice of legislative fact, see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973) (“a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex”); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (“women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena”); Javins v. First Nat’l Realty Corp., 138 U.S.App.D.C. 369, 375-77, 428 F.2d 1071, 1078-80 (D.C.Cir.) (“Tenants have very little leverage to enforce demands for better housing. The increasingly severe shortage of adequate housing further increases the landlord’s bargaining power and escalates the need for maintaining and improving the existing stock.”) (footnote omitted), cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).

25

. Section 18(c)(1)(B) provides that

an interested person is entitled ... if the Commission determines that there are disputed issues of material fact it is necessary to resolve, to present such rebuttal submissions and to conduct (or have conducted under paragraph (2)(B)) such cross-examination of persons as the Commission determines (i) to be appropriate, and (ii) to be required for a full and true disclosure with respect to such issues.

15 U.S.C. § 57a(c)(l)(B).

26

. Section 18(c)(2)(B) provides that the Commission may prescribe rules that include

requirements that any cross-examination to which a person may be entitled under paragraph (1) be conducted by the Commission on behalf of that person in such manner as the Commission determines (i) to be appropriate, and (ii) to be required for a full and true disclosure with respect to disputed issues of material fact.

15 U.S.C. § 57a(c)(2)(B).

27

. The Administrative Conference of the United States (ACUS) is empowered to study administrative procedure and to make recommendations about administrative procedure to the President, the Congress, or the Judicial Conference of the United States. 5 U.S.C. § 574(1) (1976). Congress specifically asked ACUS to study and to evaluate the procedures of § 18. See Magnuson-Moss Act, Pub.L.No. 93-637, § 202(d), 88 Stat. 2198 (1975), as amended by Act of Nov. 1, 1978, Pub.L.No. 95-558, 92 Stat. 2130, reprinted in 15 U.S.C.A. § 57a note (West Supp. 1979).

28

. Appellants’ Supplemental Memorandum, Attachment 8, at 2.

29

. While the House version of the MagnusonMoss Act was pending, Chairman Scalia commented upon the bill, which at that time allowed cross-examination “as may be required for a full and true disclosure of all disputed issues of material fact.” See H.R.Rep.No. 93-1107, 93d Cong., 2d Sess. 13 (1974), U.S.Code Cong. & Admin.News 1974, p. 7702, Scalia suggested that the proposed House provision would be unworkable because it would routinely require use of “a procedural technique designed for the resolution of particularized factual disputes” in the formulation of generally applicable rulemaking. Appellants’ Supplemental Memorandum, Attachment 9, at 1. Scalia noted, however, that evidentiary proceedings might be appropriate for the resolution of “specific facts.” Id. at 2. Chairman Scalia’s successor, Robert Anthony, repeated these views in a subsequent letter to Congressman Staggers, a member of the Conference Committee. Appellants’ Supplemental Memorandum, Attachment 10.

The Conference Committee changed § 18 to allow cross-examination if there “are disputed issues' of material fact, and . . . it is necessary to resolve such issues.” See H.R.Rep. No.93-1606, supra note 19, at 33. As we previously noted, the Conference Report defined material issues of disputed fact as specific fact. See pp.---- of 201 U.S.App.D.C., pp. 1163-1164 of 627 F.2d supra. After the final version of the Magnuson-Moss Act passed both houses of Congress, but prior to presidential action, the Office of Management and Budget requested ACUS’s comments on the bill. ACUS Executive Secretary Richard K. Berg stated:

If the courts look to the Conference report as an authoritative interpretation of the statutory phrase “disputed issues of fact,” the problem of the Commission bogging down in excessive trial-type procedures is greatly reduced. Since consideration of many, if not most proposed rules of general applicability involve exclusively questions of legislative fact, the Commission would often be able to dispense with cross-examination entirely.

Appellants’ Supplemental Memorandum, Attachment 11, at 2.

30

. Rulemaking under the APA similarly embodies the delegation of .legislative authority to administrative agencies. During debate preceding passage of the APA, Representative Walters, chairman of the subcommittee that reported the APA to the House, see 92 Cong. Rec. 5655 (1946), explained that rulemaking encompasses

the legislative functions of administrative agencies, where they issue general or particular regulations which in form or effect are like the statutes of the Congress. . Congress — if it had the time, the staff, and the organization — might itself prescribe these things. Because Congress does not do so itself and yet desires that these things be done, the legislative power to do them has been conferred upon administrative officers or agencies.

Id. at 5648.

31

. See Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. , 6 L.Ed.2d 1230 (1961) (“[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation”).

32

. The Conference Report explained that “[b]ecause the prohibition of section 5 of the Act is so broad, trade regulation rules are needed to define with specificity conduct that violates the statute and to establish requirements to prevent unlawful conduct.” H.R.Rep.No. 93-1606, supra note 19, at 31.

33

. Two commentators have explained the practical significance of the Commission’s power to adopt legislative rules:

Ordinarily, when the FTC encounters a business practice it considers deceptive, it issues a complaint against the responsible company. If the recipient is not prepared to change its practices, the matter is set for a trial-type hearing at which the Commission bears the burden of showing that the respondent’s practices have deceived, or are likely to deceive, a substantial number of purchasers. Counsel for the Commission customarily must introduce evidence sufficient to support the complaint’s theory of deception. In the Petroleum Refiners context, this would mean that Commission counsel would attempt to show the wide range of octane levels among marketed gasolines, general consumer ignorance of the ratings of specific brands, the waste of purchasing more octane than one’s car engine requires, and, probably, the tendency of consumers, in the absence of information, to purchase more octane than their cars require. On each of these issues the respondent would be entitled to present evidence and cross-examine witnesses. Following the evidentiary hearing the Commission would make findings of fact and decide whether the facts found demonstrated a violation. If the Commission concluded that they did, its decision would be subject to limited court review. Probably the most important feature of this process, from the respondent’s viewpoint, is the assurance of an opportunity to present his own evidence and cross-examine adverse witnesses on the central factual issues in the case.

What procedure may the Commission follow now that its authority to adopt the octane-posting rule has been upheld? The basic procedural steps remain essentially unchanged, but the issues to be litigated are narrowed significantly. If any gasoline distributors fail to comply with the rule, the Commission must initiate the complaint, hearing, decision, and court review process previously outlined against each one. However, assuming the Commission’s rule is valid, it need only show that the respondent has failed to comply with the rule — not that his omission of octane ratings is deceptive under § 5. The Commission will have established the necessary factual predicate for its judgment — that such omission is deceptive — in the original rulemaking proceeding. The respondent may of course present evidence and cross-examine on the issue of whether the required postings were made, but he will not be allowed to relitigate the factual premises underlying the Commission’s rule.

J. Mashaw & R. Merrill, The American Public Law System 247-48 (1975). See United States v. Storer Broadcasting Co., 351 U.S. 192, 201-03, 76 S.Ct. 763, 100 L.Ed. 1081 (1956).

34

. Appellants’ Supplemental Memorandum, Attachment 11, at 2. Then-Chairman Robert Anthony, in a letter to Congressman Staggers, explained:

The Food and Drug Administration is required to use trial-type techniques for much of its general rulemaking pertaining to standards for food products. No proceeding subject to this requirement has been completed in less than two years; two have taken more than ten years; a hearing transcript of over 7,700 pages has been devoted exclusively to the question whether peanut butter should consist of 87‘/2 percent or 90 percent peanuts.

Id.

Many recent commentators have echoed ACUS’s view that full use of formal rulemaking provisions unnecessarily hampers the administrative process. See, e. g., 1 K. Davis, supra note 18, § 6:8; G. Robinson & E. Gellhom, The Administrative Process 542 n. 47 (1974); Hamilton, Rulemaking on a Record by the Food and Drug Administration, 50 Tex.L.Rev. 1132, 1153-56 (1972).

35

. The requirements imposed by § 18 that are not mandated by § 553 of the APA include the following:

(1) The Commission must publish a “notice of proposed rulemaking stating with particularity the reason for the proposed rule.” 15 U.S.C. § 57a(b)(l). Section 553(b) requires issuance of a “[gjeneral notice of proposed rule making” with certain exceptions. 5 U.S.C. § 553(b).

(2) The Commission must allow public comment and must “make all such submissions publicly available.” 15 U.S.C. § 57a(b)(2). Section 553 does not have an analogous publication requirement. 5 U.S.C. § 553(b).

(3) The Commission must conduct an informal hearing at which an interested person is entitled “to present his position orally or by documentary submissions (or both).” 15 U.S.C. § 57a(c)(l)(A). If the Commission determines disputed issues of material fact exist, then such persons have such a right to rebuttal and cross-examination as is (i) appropriate and (ii) “required for a full and true disclosure with respect to such issues.” 15 U.S.C. § 57a(c)(l)(B). The Commission is given the explicit, additional authority to “prescribe such rules and make such rulings ... as may tend to avoid unnecessary costs or delay,” including “reasonable time limits on each interested person’s oral presentations.” 15 U.S.C. § 57a(c)(2). Under appropriate conditions, the Commission may also limit the representation of a group of persons who “have the same or similar interests . . . .” 15 U.S.C. § 57a(c)(3)(A).

Section 553(c) merely requires that “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(c).

(4) The Commission must include in its statement of basis and purpose that accompanies a rule:

(A) a statement as to the prevalence of the acts or practices treated by the rule; (B) a statement as to the manner and context in which such acts or practices are unfair or deceptive; and (C) a statement as to the economic effect of the rule, taking into account the effect on small business and consumers.

15 U.S.C. § 57a(d)(l). Section 553(c) requires an agency only to issue a statement of basis and purpose. 5 U.S.C. § 553(c).

(5) A reviewing court must set aside a Commission decision “not supported by substantial evidence in the rulemaking record taken as a whole.” 15 U.S.C. § 57a(e)(3)(A). The rulemaking record consists of the rule, the statement of basis and purpose, the transcript of the hearing, any written submissions, and “any other information which the Commission considers relevant to [the] rule.” 15 U.S.C. § 57a(e)(l)(B). A reviewing court must also set aside a rule when the Commission’s rulings on rebuttal and cross-examination have “precluded disclosure of disputed material facts . . necessary for fair determination by the Commission of the rulemaking proceeding taken as a whole.” 15 U.S.C. § 57a(e)(3). A court reviewing rulemaking conducted pursuant to § 553 will set aside an agency decision that is arbitrary or capricious or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

36

. See pp. --- of 201 U.S.App.D.C., pp. 1161-1163 of 627 F.2d supra.

37

. American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (D.C.Cir.1966) (en banc).

38

. See 1 Senate Comm, on Gov’t Operations, 95th Cong., 1st Sess., Study on Federal Regulations 156-61 (1978) (recommending that regulatory philosophy be a principal factor in selec tion of administrators). As one commentator has observed in a slightly different context:

Agencies are created to maintain or to restructure certain areas of private activity in light of expressed statutory policies. Thus, unlike courts, agencies should be positive actors, not passive adjudicators. . [A]n agency should not apologize for being predisposed to implementing the goals that Congress has set for it. To call such an attitude “bias” misses this central point.

Pedersen, The Decline of Separation of Functions in Regulatory Agencies, 64 Va.L.Rev. 991, 994 (1978).

39

. The APA provisions governing adjudication accordingly impose limitations on administrators not placed on rulemakers. Section 554(d) prohibits ex parte contacts between prosecutors and administrators within the same agency. 5 U.S.C. § 554(d). This separation-of-functions provision does not apply in either informal or formal rulemaking. See Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 205-206, 598 F.2d 91, 124-25 (D.C.Cir.1978). The Attorney General’s Manual on the Administrative Procedure Act 15 (1947) attributes this distinction to the difference between the roles of rulemakers and adjudicators:

Even in formal rule making proceedings subject to sections [556 and 557], the Act leaves the hearing officer entirely free to consult with any other member of the agency’s staff. In fact, the intermediate decision may be made by the agency itself or by a responsible officer other than the hearing officer. This reflects the fact that the purpose of the rule making proceeding is to determine policy. Policy is not made in Federal agencies by individual hearing examiners; rather it is formulated by the agency heads relying heavily upon the expert staffs which have been hired for that purpose. And so the Act recognizes that in rule making the intermediate decisions will be more useful to the parties in advising them of the real issues in the case if such decisions reflect the views of the agency heads or of their responsible officers who assist them in determining policy. In sharp contrast is the procedure required in cases of adjudication subject to section [554(d)]. There the hearing officer who presides at the hearing and observes the witnesses must personally prepare the initial or recommended decision required by section [557]., Also, in such adjudicatory cases, the agency officers who performed investigative or prosecuting functions in that or a factually related case may not participate in the making of decisions. These requirements reflect the characteristics of adjudication ....

See generally Pedersen, supra note 38, at 996-1001.

40

. In Home Box Office, a panel of this court ruled that “communications which are received [by an agency] prior to issuance of a formal notice of rulemaking do not, in general, have to be put in a public file,” although discussions following publication of a notice of rulemaking must be so filed. 185 U.S.App.D.C. at 190, 567 F.2d at 57. Later, another panel questioned the wisdom of even this restriction on ex parte contacts in rulemaking. See Action for Children’s Television v. FCC, 183 U.S.App.D.C. 437, 564 F.2d 458 (D.C.Cir. 1977). Two other cases have faced similar situations and reached differing conclusions. Compare United States Lines, Inc. v. FMC, 189 U.S.App.D.C. 361, 378-385, 584 F.2d 519, 536-43 (D.C.Cir.1978), with Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 204-209, 598 F.2d 91, 123-28 (D.C.Cir.1978). We need not reach the question of whether Home Box Office is indeed the law of this circuit, for in this case, Chairman Pertschuk’s remarks preceded the Commission’s notice of proposed rulemaking, see pp.--- of 201 U.S.App.D.C., p. 1155 of 627 F.2d supra, p. - of 201 U.S.App.D.C., p. 1173 of 627 F.2d infra, and, as just noted, Home Box Office by its own terms does not apply to this situation.

41

. The Court gave three reasons why the school board could not be disqualified from deciding whether teachers participating in a strike prohibited by law should be discharged: (1) the school board did not have a financial or personal stake in the decision, see, e. g., Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); (2) in the absence of a showing that a decisionmaker is incapable of judging a particular controversy fairly, he will not be disqualified because of “[m]ere familiarity with the facts of a case” or his having taken a position on a policy issue; and (3) the legitimate government interest in preserving the school board as the creator of local policy would be thwarted if familiarity with the factual circumstances of the contract negotiations forced disqualification. 426 U.S. at 491-96, 96 S.Ct. at 2314.

42

. As a separate ground, the Court noted that disqualification of the entire Commission would “immunize” the trade association from regulation under the Federal Trade Commission Act. 333 U.S. at 701-02, 68 S.Ct. 793.

43

. See generally Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 421, 510 F.2d 796, 801 (D.C.Cir.1975) (due process challenge to Atomic Energy Commission’s order allowing construction of nuclear power plants on basis of agency’s “promotional bias” favoring use of atomic energy rejected because “[ajgencies are required to consider in good faith, and to objectively evaluate, arguments presented to them; agency officials, however, need not be subjectively impartial”).

44

. See note 56 infra.

45

. A. at 39.

46

. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972).

47

. A. at 44.

48

. Id. at 42.

49

. Id. at 46.

50

. Id.

51

. Even judges are free to decide cases involving policy questions on which they previously have expressed a view. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), is particularly illustrative. In that case, the petitioners attacked on first amendment grounds the constitutionality of the Army’s collection of information about public activities thought to have some potential for civil disorder. The Supreme Court held, by a 5-4 vote, that the jurisdiction of a federal court could not be invoked by "a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.” Id. at 10, 92 S.Ct. at 2324.

Following the Court’s decision, the petitioners asked Justice Rehnquist, who was a member of the majority, to recuse himself, nunc pro tunc, on the basis of earlier statements he had made on the constitutionality of governmental surveillance. Justice Rehnquist, before his nomination and confirmation as an Associate Justice of the Supreme Court, had testified before a Senate subcommittee as a representative of the Justice Department. The hearings were called to consider, inter alia, the authority of the Executive Branch to gather information. In the course of his testimony, Justice Rehnquist concluded that domestic surveillance was constitutional.

In a separate memorandum, Justice Rehnquist dismissed the contention that he should disqualify himself because he had expressed views contrary to the legal position of the petitioner in Laird v. Tatum. He surveyed the actions of Justices in this century and concluded that “none of the former Justices of this Court since [enactment of the judicial disqualification statute] have followed a practice of disqualifying themselves in cases involving points of law with respect to which they had expressed an opinion or formulated policy prior to ascending to the bench.” Laird v. Tatum, 409 U.S. 824, 831, 93 S.Ct. 7, 11, 34 L.Ed.2d 50 (1972) (memorandum of Rehnquist, J.). Indeed, Justice Rehnquist suggested that

[i]t would not be merely unusual, but extraordinary, if [Justices] had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.

Id. at 835, 93 S.Ct. at 13-14.

Justice Rehnquist’s opinion is in full accord with the general principle that a federal judge will not be disqualified pursuant to 28 U.S.C. § 144 or § 455 (1976) because of prior expression of views on a legal question. See, e. g., Antonello v. Wunsch, 500 F.2d 1260, 1262 (10th Cir. 1974); Goodpasture v. TVA, 434 F.2d 760, 765 (6th Cir. 1970); Knoll v. Socony Mobil Oil Co., 369 F.2d 425, 430 (10th Cir. 1966); Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.), cert. denied, 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); Loew’s, Inc. v. Cole, 185 F.2d 641, 646 (9th Cir. 1950).

A contrary result in this case would create an anomaly between administrative policymakers, who would be barred from discussion of legislative fact prior to promulgation of a notice of proposed rulemaking, and judges, who are free to discuss policy questions and to take judicial notice of legislative fact. See note 24 supra. Due process, which recognizes a distinction between judges and rulemakers, allows rule-makers greater freedom. See pp.---, --- of 201 U.S.App.D.C., pp. 1162-1163, 1165-1166 of 627 F.2d supra.

52

. In Cinderella, Chairman Dixon had referred specifically to the adjudication pending before the Commission and had prejudged precise factual issues. See pp.---of 201 U.S.App.D.C., pp. 1158-1159 of 627 F.2d supra.

53

. Statement of Basis and Purpose of Trade ¹ Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking, 29 Fed.Reg. 8355 (1964), quoted in FTC v. Sperry & Hutch inson Co., 405 U.S. 233, 245 n. 5, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972). See Pitofsky, Beyond Nader: Consumer Protection and the Regulation of Advertising, 90 Harv.L.Rev. 661, 681-87 (1977).

54

. See note 40 supra.

55

. See pp.---of 201 U.S.App.D.C., pp. 1171-1172 of 627 F.2d supra.

56

. A review of other materials relied upon by the appellees supports our conclusion. As a group, they demonstrate only that Chairman Pertschuk articulated the legal theory put forth in the ACT speech:

(1) A Commission press release, dated July 20, 1977, stated that Chairman Pertschuk had met with ACT representatives and had suggested that children’s advertising might be unfair without being deceptive because children “are a vulnerable population that may require special protection from advertisers.” A. at 33.

(2) Chairman Pertschuk was quoted, in a newspaper column, as stating that “a 4 to 5-year-old child . . may not understand what advertising is about.” Id. at 47.

(3) In an article published in Newsweek magazine, Chairman Pertschuk was quoted as saying that he was committed to taking action on the problem of commercialization of children and that “ [advertisers seize on the child’s trust and exploit it as a weakness for their gain.” Id. at 48.

(4) In an interview published in TV Guide, Chairman Pertschuk stated that children are not sophisticated consumers, noted that the Commission might have the power to limit certain children’s advertising, and predicted that “[a]s soon as the Commission proposes action” it will be involved in a long fight with advertisers. Id. at 50.

(5) In an article in the Wail Street Journal, two passages from Chairman Pertschuk’s ACT speech were quoted. Id. at 49.

(6) During an interview televised on the “Today Show,” Chairman Pertschuk engaged in the following colloquy with a viewer and interviewer Bob Abernathy:

SUSAN LOVETT: Mr. Pertschuk, I’d like to know what’s being done about advertising on TV for children and all the garbage that’s advertised for the kiddies.

PERTSCHUK: Well, I’m glad you asked the question. It’s an area of prime concern to me and to the Commission itself. There’s a very basic question in our society, and that is the question to which — the extent to which children are to be treated as commercial objects. One advertiser in New York described advertising directed to children as guided missiles, turning the children into guided missiles through the heart of the parent into its pocketbook.

ABERNATHY: Is it your personal opinion that no television advertising, for instance, should be directed at children?

PERTSCHUK: I have some serious doubt as to whether any television advertising should be directed at a three or four or five year old, a preschooler. They’re not competent to understand the nature of the message. We’ve never treated children as commercial objects in our society. And of course, print advertising only reaches those who can read. But television advertising in the home, directed to children, is a new phenomenon in our society, and I think a troublesome one.

ABERNATHY: Would you like to see the FTC ban it altogether?

PERTSCHUK: Not necessarily. But we’ve not excluded the possibility of bans on certain advertising of certain products to children.

The Trade Commission has not, as a body — you know, there are four other commissioners who must address this issue for the Commission to act — has not, as a body, yet approached the question of the remedy for the evils we see in children’s advertising. We’ll do that next month.

Id. at 31.

(7) In three letters dated the day after delivery of the ACT speech, Chairman Pertschuk said that the speech set forth the legal underpinnings for Commission action against children’s advertising. Id. at 71-73.

(8) In a letter to Food and Drug Commissioner Donald Kennedy, Chairman Pertschuk outlined the logical steps underlying the legal theory that children’s advertising is unfair. In particular, he noted that the Commission would have to be able to demonstrate “that there is a substantial health controversy regarding the health consequences of sugar.”

Id. at 95.

None of these materials significantly adds to the legal theory presented in the ACT speech, nor do they raise issues of legislative fact not addressed therein.

1

. FTC v. Cement Institute, 333 U.S. 683, 701, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) (Commission’s expression of views).