Scott Armstrong, Appellees/cross-Appellants v. Executive Office of the President, Appellants/cross-Appellees

90 F.3d 553, 319 U.S. App. D.C. 330, 1996 U.S. App. LEXIS 18932

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 2, 1996
• Docket: 95-5057, 95-5061
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting Opinion filed by Circuit Judge TATEL.

GINSBURG, Circuit Judge:

This case presents the question whether the National Security Council is an “agency” subject to the Freedom of Information Act, 5 U.S.C. § 552(f), that is, whether the NSC is an “executive department ... or other establishment in the executive branch.” If so, then the NSC is both subject to the disclosure requirements of the FOIA and obligated to preserve its records in accordance with the Federal Records Act, 44 U.S.C. §§ 3101-07, 3301-14.

The plaintiff-appellees are the National Security Archive, a research institute and library; Scott Armstrong, a journalist affiliated with the Archive; and several associations, including the National Library Association and the National Historical Association (hereinafter referred to collectively as Armstrong). The defendant-appellants are the Executive Office of the President; the Office of Administration and the NSC, which are components of the EOP; the White House Communications Agency, an element of the Department of Defense; and Trudy Peterson, the Acting Archivist of the United States.

The district court granted Armstrong’s motion for summary judgment, declared that the NSC is an agency subject to the FOIA, and directed it to comply with both the FOIA and the FRA. The court carved out an exception, however, for the records of high-level officials of the NSC who serve solely to advise and assist the President. Armstrong v. Executive Office of the President, 877 F.Supp. 690, 705-06 (D.D.C.1995).

The Government appeals, arguing that because the NSC does not exercise substantial authority, independent of the President, it is not an agency within the meaning of the FOIA and that its treatment as such would so intrude upon the core functions of the President as to “raise a significant constitutional concern” about the separation of powers. Armstrong cross-appeals, challenging the exception for high-level officials who act solely as advisers to the President.

Because the NSC operates in close proximity to the President, who chairs it, and because the NSC does not exercise substantial independent authority, we conclude that the NSC is not an agency within the meaning of the FOIA. Accordingly, we reverse the judgment of the district court without reaching the question raised by the plaintiffs’ cross-appeal.

I. Background

The statutory mandate of the NSC is generally “to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security” and to perform “such other functions as the President may direct.” National Security Act of 1947, 50 U.S.C. §§ 402(a)-(b). The Council members are the President and certain cabinet-level officials, including the National Security Adviser (NSA) — formally, the' Assistant to the President for National Security Affairs. The NSC staff, which numbers about 150 persons, is headed by an Executive Secretary, who reports to the NSA, and whom the President appoints without need of Senate confirmation. Id. § 402(c).

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The Presidential Records Act, 44 U.S.C. § 2201 et seq., which applies to most NSC documents, provides in part that a president’s records are to be made publicly available five years after he leaves office, except that national defense and certain other information is to be made available no later than 12 years after the end of a president’s term. § 2204. For purposes of the PRA, presidential records do not include “any documentary materials that are ... official records of an agency,” as the term “agency” is defined in the FOIA, 5 U.S.C. § 552(f). 44 U.S.C. § 2201(2)(B)(I). At the same time, the coverage of the FRA is coextensive with the definition of “agency” in the FOIA, see Armstrong v. Executive Office of the President, 1 F.3d 1274, 1293 (D.C.Cir.1993). As a result, no record is subject to both the FRA and the PRA: “The FRA describes a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different and less rigorous regime.” Id.

The PRA and the FRA differ in several respects that are of concern to the parties to this case. First, while both laws require the preservation of records, the procedures to prevent improper destruction of documents covered by the FRA are significantly more demanding; hence, the district court ordered the NSC to adopt new guidelines in order “to ensure that non-Presidential records are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act.” 877 F.Supp. at 707. Second, record-keeping requirements of the FRA are subject to judicial review and enforcement; those of the PRA are not. Armstrong v. Bush, 924 F.2d 282, 295 (D.C.Cir.1991). Third, the joint regime of the FRA and the FOIA can affect a president’s daily operations during his term of office, while the PRA is applicable to a president’s papers only after he has left office. Fourth, insofar as NSC records are subject to the FRA, a president may not take such documents with him upon leaving office (as past presidents have generally done) without the approval of the Archivist. 44 U.S.C. §§ 3303, 3303a; see also 44 U.S.C. § 3106 (Attorney General may initiate legal action to retrieve records unlawfully removed).

The legal controversy over procedures for the preservation of NSC records has a lengthy and complex history, which is fully recounted in Armstrong, 1 F.3d at 1280-82. In January 1989 Armstrong made a request under the FOIA for all documents stored in the EOP and the NSC electronic communications systems since their installation in the mid-1980’s. At the same time Armstrong sought a declaration in district court that those electronic documents and associated backup tapes are federal or presidential records, and an injunction prohibiting their destruction. For our present purpose it is sufficient to recall that the district court concluded that certain items stored in the NSC’s computer system are records subject to the FRA, and that the NSC’s guidelines relating to the preservation of those records were arbitrary and capricious. Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C.1993). When, four months thereafter, the Government still had not promulgated new guidelines for the management of those electronic records, the district court entered an order of contempt. 821 F.Supp. 761 (D.D.C.1993). On appeal we agreed that the NSC’s guidelines were inadequate, but we reversed the contempt citation, which was premised upon the Government’s failure to act by a date certain. 1 F.3d at 1274. At the same time, upon Armstrong’s cross-appeal challenging the NSC’s procedures for classifying records, we remanded the matter for the district court to determine whether the NSC properly distinguishes between presidential and federal records. Id.

The Office of Legal Counsel then rendered an opinion reversing the position it had taken in 1978 and declaring that the NSC is not an agency subject to the FOIA and therefore does not have to comply with the FRA. Memorandum of Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel to Alan J. Kreezko, Special Assistant to the President, Sept. 20, 1993. President Clinton adopted the OLC’s new position but instructed his NS A, Anthony Lake, that the NSC should voluntarily disclose “appropriate” records, including those that had been “transferred by one Administration to another for transition and continuity purposes.” Memorandum from the President, Mar. 2, 1994. The Executive Secretary thereupon revoked the NSC’s FOIA guidelines and asserted that all NSC documents are presidential records, exempt from both the FOIA and the FRA. Memorandum of William H. Itoh to William H. Leary, Mar. 25,1994.

The district court then issued the decision that we now review. The court rejected the OLC’s analysis and held that the NSC is an agency subject to the FRA and must maintain and preserve its records in accordance with that statute. 877 F.Supp. at 695. According to the district judge, the NSC does not solely advise and assist the President. Id. at 700. Rather, the NSC exercises authority independent of the President in several areas, including: overseeing the CIA, providing guidance and direction to the intelligence community, and protecting classified information. Id. at 702-03. Nonetheless, the court held that in “limited circumstances” when “high level officials of the NSC ... act not as members of an agency but, solely as advisors to the President,” the resulting records are governed by the PRA, not by the FRA. Id. at 705. In the alternative, the district court held that the NSC should be treated as an agency because the NSC had itself previously determined that it was an agency and operated accordingly but had not offered a reasoned explanation for its later change of position. Id. at 706.

On this appeal the Government contends, inter alia, that the interaction between the President and the NSC requires privacy and confidentiality. Notwithstanding that national security information and deliberative documents are exempt from disclosure under the FOIA, 5 U.S.C. § 552(b)(1) and (5), the Government contends that the possibility of premature disclosure pursuant to the FOIA would make the President’s conduct of national security policy excessively circumspect and would chill the communication necessary for effective and efficient decision-making. We need not wade into such deep waters, however, in order to resolve the present controversy.

II. Analysis

“Records” are defined by the FRA as documentary materials “made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business.” 44 U.S.C. § 3301. For purposes of the FOIA, the Congress originally defined an agency as “each authority of the Government of the United States,” subject to certain enumerated exceptions not relevant here. Administrative Procedure Act, 5 U.S.C. § 551(1). In Soucie v. David, 448 F.2d 1067, 1073 (D.C.Cir.1971), which concerned coverage under the FOIA of the Office of Science and Technology, another unit in the Executive Office of the President, we interpreted this definition to encompass “any administrative unit with substantial independent authority in the exercise of specific functions.” In 1974 the Congress amended the FOIA definition to cover any “establishment in the executive branch of the Government (including the Executive Office of the President).” 5 U.S.C. § 552(f). This expanded definition was not, however, meant to cover “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974).

That the Congress intended to codify Sou-cie is clear enough. See Meyer v. Bush, 981 F.2d 1288, 1291 (D.C.Cir.1993). Less clear is the test of an entity’s status as an “agency” subject to the FOIA. Is it (a) whether the entity exercises “substantial independent authority,” as we put the matter in Soucie; or (b) whether, in the terms of the Conference Report, the entity’s “sole function is to advise and assist the President”? As applied to an official or a group of officials who serve in dual roles, the two tests may yield different results. On the difficulty presented by the so-called dual-hat problem, see Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C.Cir.1980) (unit or official that is part of agency and has non-advisory functions cannot be “non-agency in selected contexts on a case-by-case basis”), and Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (notes made by National Security Adviser “in his capacity as Presidential adviser, only” not agency records despite NSA’s dual role as official of NSC).

Because we conclude below that neither the statutory Council nor the NSC staff performs significant non-advisory functions, we need not address the dual-hat controversy. Nor need we address the implications of that controversy for the exception created by the district court for high-level officials.

A. The Three-Factor Test of Meyer

In Meyer the court managed to harmonize the “sole function” and the “substantial independent authority” criteria by using a three-factor test to determine the status under FOIA of a unit in the Executive Office of the President. There we held that a group of senior advisers to the President, working within the EOP as the Task Force on Regulatory Relief, did not constitute an agency under the FOIA even though the group “evaluated agency regulatory efforts and had authority to provide some direction over agency rulemaking.” 981 F.2d at 1292. Reading the Conference Report against the background of Soucie, we inferred that the Congress intended the phrase “solely to advise and assist the president” to refer to “entities whose characteristics and functions were similar to those of the president’s immediate personal staff.” Id. at 1293. Therefore we identified “three interrelated factors” relevant to determining whether those who both advise the President and supervise others in the Executive Branch exercise “substantial independent authority” and hence should be deemed an agency subject to the FOIA. These factors are: (1) “how close operationally the group is to the President,” (2) “whether it has a self-contained structure,” and (3) “the nature of its delegat[ed]” authority. Id. These three factors are not necessarily to be weighed equally; rather, each factor warrants consideration insofar as it is illuminating in the particular case.

The closer an entity is to the President, the more it is like the White House staff, which solely advises and assists the President, and the less it is like an agency to which substantial independent authority has been delegated. And while a definite structure may be a prerequisite to qualify as an “establishment within the executive branch,” see id. (“The President does not create an ‘establishment’ ... every time he convenes a group of senior staff or departmental heads to work on a problem”), not every establishment is an agency under the FOIA. Although structure and function may be related for purpose of defining an agency — clear lines of authority facilitate the implementation of policy — they are not the same consideration.

The three-part test of Meyer is designed succinctly to capture the court’s prior learning on the subject whether a unit within the Executive Office of the President is an agency covered by the FOIA. As reflected in those cases, the specific evidence bearing upon that question varies with the entity in question. In Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1262-63 (D.C.Cir.1980), we held that the Council on Environmental Quality is an agency because of its independent authority to “issue guidelines to federal agencies,” “coordinate federal programs,” and oversee certain activities of other federal agencies. The Office of Science and Technology is within the ambit of the FOIA, notwithstanding its proximity to the President, because it has independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. Soucie, 448 F.2d at 1075. The Office of Management and Budget is a FOIA agency, in part because it has a statutory duty to provide budget information to the Congress. Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C.Cir.1978).

On the other hand, although the Council of Economic Advisers is fairly characterized as an “establishment” — it has a staff, a budget, and a defined structure — it has no regulatory power or other functions, under either its organic statute or any Executive Order, that would suggest that it exercises independent authority; therefore, it is not a FOIA agency. Rushforth v. CEA 762 F.2d 1038, 1043 (D.C.Cir.1985). Nor do the staff of the Executive Residence come under the FOIA; their duty is to manage the President’s home subject to his direction and approval, which they do without the delegation of substantial independent authority. Sweetland v. Walters, 60 F.3d 852, 854-55 (D.C.Cir.1995).

In this ease, if the operating relationship between the NSC and the President is as close as the Government maintains, then a hierarchical structure, large staff, and separate budget will not by themselves subject the NSC to the FOIA; Armstrong will have to show that the NSC exercises significant independent authority in order to qualify it as an agency. It is not the number of functions delegated to the NSC, but the degree of the NSC’s independence in discharging them, that matters. See Meyer, 981 F.2d at 1293. If Armstrong shows that the NSC does exercise substantial independent authority, then the NSC cannot be said solely to advise and assist the President; that is the consequence of the “sole function” test set forth in the Conference Report and fleshed out in Meyer.

Whether an entity without a self-contained structure could ever qualify as an agency that exercises substantial independent authority seems very doubtful. For this reason, we take up first the question whether the NSC has a self-contained or determinate structure. If the organizational lines of authority and responsibility within the NSC are undefined, or the NSC cannot readily be distinguished from other elements of the Executive Office of the President that solely advise and assist the President, then we do not need to go any further down the Meyer road in order to conclude that the NSC is not a distinct agency. Because we conclude that the NSC’s structure is self-contained, however, we do go on to examine the other Meyer factors; only then are we led to the conclusion that the NSC is not an agency subject to the FOIA.

1. The Structure of the NSC

We said in Meyer that a “characteristic of the President’s immediate staff is its lack of a firm structure.” 981 F.2d at 1296. Here the district court correctly characterized the NSC as having a “firm structure,” a staff, and a separate budget, 877 F.Supp. at 700-01, making it less like (to quote the Conference Report again) “the President’s immediate personal staff or [a] unit[ ] in the Executive Office [of the President] whose sole function is to advise and assist the President.” For its part, however, the Government contends that the NSC staff overlaps that of the President’s immediate personal staff and that the structure of the NSC merely reflects and confirms its role as the personal instrument of the President; the organization and functions of the NSC staff are molded by each President, acting through his National Security Adviser, to reflect the priorities of that President.

President Clinton’s National Security Adviser, Anthony Lake, implies, in a declaration submitted to the district court, that the NSC is not the self-contained structure it might seem from a glance at its organization chart. The NSC staff, he reports, “operates within the White House as the President’s foreign policy and national security staff”; indeed, he points out, several individuals occupy positions on the organizational charts of both the White House and the NSC.

Armstrong responds by emphasizing the hierarchical NSC organization chart, which, he argues, reveals an elaborate, self-contained structure and bureaucracy of the sort indicative of an agency under the analysis in Meyer. We agree. The NSC staff is not an amorphous assembly from which ad hoe task groups are convened periodically by the President. On the contrary, it is a professional corps of more than 150 employees, organized into a complex system of committees and working groups reporting ultimately to the Executive Secretary. There are separate offices, each responsible for a particular geographic region or functional area, with clearly established lines of authority both among and within the offices. The several points of tangency between the White House and the NSC staff noted by Mr. Lake do not intertwine the NSC with “the President’s immediate personal staff” in any way that obscures the line of perforation between the NSC and other units in the EOP; in fact, all of the individuals holding titles on both the NSC and White House staffs are in a non-substantive area, public affairs.

We conclude that the NSC has a structure sufficiently self-contained that the entity could exercise substantial independent authority. The remaining question is whether the NSC does in fact exercise such authority. We approach that question, as we did in Meyer, by considering how close the operation of the NSC is to that of the presidency, and by examining the nature of such authority as has been delegated to the NSC.

2. The Proximity of the NSC to the President

Armstrong concedes that the NSC is “proximate” to the President, but he could hardly do otherwise: The President chairs the statutory Council, and his National Security Adviser, working in close contact with and under the direct supervision of the President, controls the NSC staff. The intimate organizational and operating relationship between the President and the NSC is, in our view, entitled to significantly greater weight in evaluating the NSC’s arguable status as an agency than is the self-contained structure of the entity. Accordingly, Armstrong must make a strong showing indeed regarding the remaining factor under Meyer before we can conclude that the NSC exercises substantial authority, independent of the President.

S. The Nature of the Authority Delegated to the NSC

The Government’s position is, as it must be, that neither the Congress nor the President has delegated any function to the NSC other than that of advising and assisting the President. We consider first the question of congressional delegation.

Under the National Security Act, the NSC is authorized to: (a) advise the President upon national security matters; (b) coordinate the policies and functions of other departments and agencies regarding national security matters; (c) assess and appraise the objectives and commitments of, and the risks facing, the United States; (d) consider policies on national security matters; and (e) make recommendations to the President. 50 U.S.C. §§ 402(a)-(b). The Government deems it self-evident that these statutory provisions do not by themselves authorize the NSC to perform any non-advisory function.

Armstrong’s only argument to the contrary is based upon a section of the Act providing that the Director of Central Intelligence acts “[ujnder the direction of the National Security Council” and “as the President or the National Security Council may direct.” 50 U.S.C. §§ 403-S(a)(l), 403-3(c)(6). Armstrong maintains that this provision (as “reinforced” by Executive Order 12,-333) delegates independent authority to the NSC. As we understand it, however, the statute delegates authority not to the institutional NSC but to the President and the statutory Council headed by the President. A member of the Council acts not as the head of his or her department but as an adviser or assistant to the President. Our observations in Meyer regarding the Task Force on Regulatory Relief, of which the President was not himself a member, are even more clearly applicable to the statutory Council, which the President chairs:

[I]t is rather hard to imagine that ... any ... head of a department or agency who reports directly to the President, would acquiesce in a [Council] decision that was thought not to represent directly and precisely the President’s opinion. It seems implicit that ... members of the [Council] were not expected to resolve disputes themselves, without presenting those disputes to the President, unless they already knew the President’s views on the exact issue. This, of course, means the [Council] was not expected to act with significant independence.

981 F.2d at 1295 (emphasis in original).

Nor does anything in the record suggest that the President has empowered the NSC staff to direct the DCI in any way. On the contrary, the staffs Senior Director for Intelligence Programs stated at his deposition, “I don’t have the ability to issue instructions or directions to agencies. I would merely convey a decision made by the President or by the National Security Adviser or Deputy National Security Adviser on behalf of the President.”

We conclude that the NSC staff does not “direct” the CIA in the conduct of its business, nor tell the DCI what to do except insofar as it may relay the decisions of the President and his senior advisers on the statutory Council. Indeed, we find it inconceivable that the DCI, who himself sits on the Principals Committee (the senior interagency decision-making group for national security policy), would take direction from a member of the NSC staff acting on his or her own behalf.

The larger battle between the parties is not over the statute in any event; it is over various presidential delegations to the NSC. The district court, observing that successive presidents have, through a series of Executive Orders and National Security Decision Directives (NSDDs), expanded the NSC’s involvement in the areas itemized in the Act, concluded that the NSC has accreted authority to act independently in a variety of areas. It is this position that Armstrong defends most expansively on appeal.

In the Government’s view, the district court mistook the gradual expansion of the NSC’s advisory and assisting functions for the delegation of independent authority. Indeed, we are told, successive presidents expanded the NSC’s responsibilities not in order to hypothecate their powers but, on the contrary, the better to secure their personal control over the fragmented national security apparatus. This interpretation finds direct support in the report of the Tower Commission, which, in the course of examining possible involvement by NSC staff members in the Iran-Contra matter, concluded that the NSC “has from its inception been a highly personal instrument of the President” and “remain[s] a strictly advisory body.” John Tower et al., Report of the President’s Special Review Board, at II — 1, II-2 (1987).

Armstrong argues that the President has delegated authority to the NSC in a number of specific areas. We review below his best examples, each of which the Government vigorously disputes. We conclude that, notwithstanding Armstrong’s detailed efforts to document a decisional role for the NSC staff, the staff exercises no substantial authority either to make or to implement policy. Insofar as the staff has been delegated authority to make policy recommendations for approval by the President, his NSA, or the statutory Council, the staffs functions are, of course, quintessentially advisory. Likewise, to the extent that the NSC assists the President in coordinating the activities of the various agencies with national security responsibilities, it exercises no authority of its own.

Protection of national security information. Executive Orders 12,338 and 12,356 respectively authorize the NSC (1) to provide “review of, guidance for, and direction to, the conduct” of intelligence activities, and (2) to “provide overall policy direction for the information security program.” According to Armstrong, these (to us rather cryptic) delegations make the NSC the administrative court of last resort for resolving disputes over what information can be released to government • contractors and disputes between agencies concerning the protection and declassification of classified information. The NSC offers a different perspective on its role: In providing overall policy direction and carrying out the referenced Executive Orders, the NSC merely monitors other agencies in order to assure that the objectives of the President, who retains ultimate authority over classified information, are achieved. Specifically, the NSC states that its declassification reviews, although described by the district court as “adjudicatory,” 877 F.Supp. at 702, are really nothing more than the internal management of the information that the NSC generates in advising the President.

At oral argument, Armstrong took strong exception to this last assertion. He contends that the NSC’s declassification function extends to all “material produced or processed for the NSC staff, even if not originally classified by an authorized member of the staff.” That is, some of the material subject to NSC declassification is held by other agencies. If so, then the NSC would seem to be exercising discretionary authority beyond the internal management of its own information.

When pressed for an example, Armstrong referred the court to § 3.1(c) of Executive Order 12,356, in which the President authorized the NSC to hear appeals from the decisions of the Information Security Oversight Office, an entity outside the NSC with jurisdiction over declassification procedures. In response to a question from the bench, however, Armstrong conceded that he is aware of no instance in which the appellate process has been invoked. We are reluctant to consider the mere formality of a delegation of authority, unexercised and for all that appears, therefore, of no consequence, the indicium of an entity with substantial independence from the President.

Moreover, in April 1995 President Clinton issued a new directive, replacing Executive Order 12,356 and transferring overall policy direction for information security to the Director of the Office of Management and Budget, in consultation with the NSA. Armstrong is therefore limited to arguing that the NSC was an agency by virtue of the Executive Order when the records at issue in this action were created.

Our dissenting colleague goes further, however. Focusing upon a regulation promulgated under the since-revoked Executive Order that authorized the NSC to decide whether a federal agency should be granted a waiver permitting it to use a non-standard security form for access to classified information, 32 C.F.R. § 2003.20(k), Judge Tatel suggests not only that we look to whether the NSC was an agency when the disputed records were produced, but also that the regulation may remain in effect notwithstanding the revocation of Executive Order 12,356 and the issuance of Executive Order 12,958. Our response is twofold: First, the burden is upon Armstrong to show that a regulation issued pursuant to a superseded Executive Order remains in effect, and he has not even tried to do so. Second, we are not asked in this round of litigation to resolve the status of particular documents; instead, we must declare whether the NSC is an agency subject to the FOIA and the FRA. In reaching that judgment, we apply the law in effect at the time we render our decision. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974).

Telecommunications policy. Armstrong argues next that the NSC has a non-advisory role in controlling the National Communications System — a consortium of entities responsible for providing communications for the federal government under emergency conditions, including nuclear attack. By virtue of a regulation issued by the Federal Communications Commission, under the authority of the Communications Act of 1934, 47 U.S.C. § 606, and various other statutes, the NSC has “[ajuthority to develop plans, policies, and procedures for the establishment of ... priorities” aimed at restoring communications services in a national emergency. 47 C.F.R. §§ 211.1(b), 211.6(g). Control over the National Communications System is not, however, assigned to the NSC; the presidentially appointed “Executive Agent” is the Secretary of Defense. Exec. Order 12,472 § 1(e). Armstrong maintains that while the Secretary has been delegated authority over some specified matters involving telecommunications, the NSC is responsible for other matters. See National Communications System Directive 2-1 § 8. The NSC counters that whatever authority it has over telecommunications it does not exercise autonomously; i.e., the NSC may propose, but it is for the President to approve, policy in this area.

The governing regulations and Executive Order 12,472 establish that the NSC participates in setting priorities for the restoration of telecommunications during a national emergency — priorities that may bind even non-governmental telecommunications common carriers and users. See, e.g., 47 C.F.R. § 213.0(b). Armstrong has not, however, established that any of this authority can be exercised without the consent of the President, and the NSC cannot be deemed an “agency” if it does not exercise some substantial non-advisory authority of its own.

Our dissenting colleague asserts that because 47 C.F.R. § 213.7(g) provides that certain telecommunications “authority is reserved to the National Security Council” in the event of an emergency, Armstrong has satisfied his burden of showing that the NSC can exercise such authority without the consent of the President. The regulation affords a scant basis upon which to conclude that the NSC can act, independent of the President, should an emergency arise. Nor is there any support for the dissent’s view that the NSC, merely by developing the telecommunications plan set forth in 47 C.F.R. §§ 201-16, has already demonstrated substantial independence of the President. The development of a plan, without more, does not attest to its independent preparation much less to its adoption without the consent of the President or his NSA.

Emergency preparedness. The President has delegated to the NSC some authority over emergency preparedness and crisis management, see Exec. Order 12,656 § 104(a), and instructed all departments and agencies with responsibility for national defense preparedness to adhere to NSC “policy and guidelines” in that area. Exec. Order No. 12,919 § 104(c). The NSC nonetheless disclaims any autonomous role in emergency preparedness policy-making, that is, any role beyond providing advice and assistance to the President. Instead, the NSC claims that it serves simply as “the principal forum” for consideration of policy (quoting Exec. Order No. 12,656 § 104(a)).

In reply, Armstrong points to NSDD 188, which establishes a Senior Interagency Group (SIG) for National Security Emergency Preparedness, reporting to the President through the NSC. This group, which is chaired by the National Security Adviser, is authorized — again rather cryptically, it seems to us — to “oversee the implementation of the goals and principles” involved in emergency mobilization planning. When asked at oral argument whether there is anything in the record to indicate what the SIG actually does, Armstrong conceded that there is nothing before us to confirm that the SIG in fact oversees anything or anyone. In any event, for the NSC to serve as an intermediary between the President and a group that “oversee[s] the implementation of ... goals and principles” set by the President is not to implement those goals itself. We are hesitant to conclude that merely “overseeing” (if it does) and reporting to the President upon the activities of others are functions sufficiently distinct from advising and assisting the President to weigh in favor of treating the NSC as an agency subject to the FOIA.

Non-proliferation. Both Armstrong and the dissent argue that the NSC exercises authority, independent of the President, in the area of nonproliferation because the NSC examines and makes recommendations to the Department of Commerce regarding export license applications. We disagree. First, if the Departments of Commerce and Energy make an initial determination that an examination is necessary, 15 C.F.R. pt. 778, supp. 1 (1995), that examination is actually undertaken not by the NSC but by an ad hoc inter-agency working group that may not even qualify as an “establishment within the executive branch.” Meyer, 981 F.2d at 1293 (“The President does not create an ‘establishment’ ... every time he convenes a group of senior staff or departmental heads to work on a problem”). Second, although the NSA acknowledges that the working group is part of the NSC, he also notes that a “Special Assistant to the President ... represents the President on each [group] ... [and he] takes his direction from me or my Deputy, on behalf of the President.” Finally, the Secretary of Commerce must consider, but is not bound by, the recommendation of the working group. 50 U.S.C.App. § 2409(f)(l)(1994).

The dissent dismisses this last point on the ground that the APA treats as an agency even an entity whose decisions are “subject to review by another agency.” 5 U.S.C. § 551(1). That obliterates the distinction between making a decision that will be implemented unless it is disapproved upon appeal to a higher authority, and rendering advice that will not be implemented unless it is affirmatively adopted by that authority. Furthermore, Judge Tatel’s suggestion that there is no material difference between ex ante approval and ex post review equates “preview” (to view in advance) with “review” (to view again). Quite clearly, the NSC’s recommendations are previewed, not reviewed, by the Department of Commerce before they are adopted.

Public diplomacy. In NSDD 77 the President directed an interagency Special Planning Group, chaired by the National Security Adviser, to engage in “diplomatic and technical planning relative to modernization of U.S. international broadcasting capabilities, the development of anti-jamming strategies and techniques, planning relative to direct radio broadcast by satellite and longer term considerations of the potential for direct T.V. broadcasting.” This Special Planning Group is “responsible for the overall planning, direction, coordination and monitoring of implementation of public diplomacy activities.” Id. The NSC coordinates the work of four standing committees of the Special Planning Group, each of which is chaired by a member agency.

Armstrong argues that NSDD 77 vests in the NSC authority to “direct” public diplomacy programs. The Government responds that NSDD 77, while it does contemplate that the interagency Planning Group will be supported by NSC staff, does not assign substantive authority to the NSC; all activities are carried out by the member agencies.

From NSDD 77 itself we think it quite clear that ultimate authority to set objectives, determine policy, and establish programs rests elsewhere than -with the NSC. Armstrong would have the court equate a monitoring function to the authority to establish and implement programs. As we see it, however, the President uses the NSC to provide the direction and coordination necessary to secure conformity to overall goals fixed by the President. That is not a delegation of substantial authority for the NSC to act independently of the President.

Our dissenting colleague suggests that the reviewing function of the Special Planning Group is “sufficiently similar to the evaluative function that we found warranted treating the OST as an agency in Soucie.” Even if we were to agree with that assessment, it is simply not relevant to the NSC. (Recall our emphasis in Meyer upon the “interrelated” nature of the three factors set out there. 981 F.2d at 1293.) That the Special Planning Group may review the activities of four permanent coordinating committees is not sufficient to offset the essential identity between the statutory Council and the President — an identity distinctive to the NSC and completely without parallel at the OST.

Further, Judge Tatel elaborates the responsibilities of two of the committees supervised by the Special Planning Group, and concludes that activities such as “training private groups to encourage the growth of democratic institutions” and “planning and coordination of international broadcasting” constitute substantial delegations of authority to act, independent of the President. According to the dissent, “[t]he key question is not who sets the goals toward which an entity works, but whether an entity itself takes action in furtherance of executive branch goals.” Therein lies the crux of our disagreement.

In determining whether an entity is an agency we do not lump together all its activities that advance any goal of the executive branch. Rather we distinguish between advising and assisting the President on the one hand and exercising independent authority on the other. The question is not only whether the President sets the goal, but the generality of that goal; the more general the goal the greater the likelihood that the responsible entity is vested with some element of discretion and is not just advising or assisting the President. Neither Armstrong nor the dissent has demonstrated that the Special Planning Group or any of the four interagency committees that it supervises is vested with sufficient discretion to say that it exercises authority, independent of the President.

b. Summary and Conclusion

We determined first that the NSC has the self-contained structure necessary for it to be considered an executive establishment, and second that structure, standing alone, is not sufficient to overweigh the significance of the close proximity — indeed the essential identity' — between the statutory Council and the President. Only with a strong showing that the NSC staff exercises substantial independent authority, therefore, could Armstrong succeed in portraying the NSC as an agency subject to the FOIA.

We conclude that on the record before us Armstrong has not carried his burden of showing that the NSC exercises meaningful non-advisory authority. Most clearly, the Congress has not itself (i.e., by statute) delegated substantial authority to the NSC. Armstrong therefore rests his ease principally upon such delegations as successive presidents have made in various Executive Orders and National Security Decision Directives. Under none of these, however, does the NSC appear to exercise any significant non-advisory function.

Armstrong has shown that the NSC staff has authority to review requests for document declassification, and has apparent authority to decide appeals from decisions of the ISOO, but the record is silent upon the question whether the NSC uses that authority and does so without direct supervision by the President. Armstrong has also pointed to delegations from the President to the NSC of functions in telecommunications, non-proliferation, and public diplomacy; but he has not shown that the NSC plays a substantive role apart from that of the President, as opposed to a coordinating role on behalf of the President. When arrayed against the overwhelming fact that the President is the head of the NSC, more is required to demonstrate that these staff activities cast the NSC in any role outside its statutory assignment to advise and assist the President. Therefore, we hold that under the three-part test of Meyer, the NSC is not an agency subject to the FOIA

B. Past Conduct and Statements

Armstrong also suggests that, quite apart from the Meyer test, the NSC’s own past statements and conduct demonstrate that the NSC has functions in addition to those of advising and assisting the President. See Soucie, 448 F.2d at 1075 (prior conduct weighed in assessing whether entity is an agency). Armstrong cites these recent examples: (1) the Executive Secretary’s 1998 staff memorandum on recordkeeping stating that “the NSC both advises and assists the President and is an agency”; (2) the Joint Statement of Facts submitted to the district court in this case, in which the parties state that the NSC’s “responsibilities include ... performing independent functions set forth in the governing statute, as well as in regulations and Executive Orders”; and (3) the NSC’s memorandum in support of its motion to dismiss a previous case brought by Armstrong, in which the NSC reports having responsibilities in the “management of the interagency process for national security affairs”. Armstrong notes also that each Administration has left behind so-called institutional records of the NSC, which the NSC has managed under the FRA rather than the PRA; he claims that the NSC thereby implicitly conceded that it is an agency.

According to the Government, these examples of the NSC’s past statements and conduct do not have the significance that Armstrong claims for them. First, the Executive Secretary’s recordkeeping memorandum was intended to guide NSC staff members in creating, maintaining, and preserving records in conformity with the OLC’s legal opinion, then prevailing within the Executive Branch, that the NSC was an agency. That opinion was reversed some months later. Second, the NSC’s submissions in earlier rounds of this litigation can hardly be read to concede the central point in contention here. In the Joint Statement of Facts, the NSC was just acknowledging that it does a variety of things pursuant to the delegations listed therein; in the memorandum of law supporting the Government’s motion to dismiss the prior ease, it acknowledged only a coordinating role (“management of the interagency process”) typical of an entity within the Executive Office of the President acting on behalf of the President in relation to the agencies with operating responsibilities. As to Armstrong’s third point, about “institutional records,” the NSC responds that every president has treated most of the NSC’s records as presidential records and removed them at the end of his administration. That the NSC, in the interests of permitting public access to some NSC records and ensuring a smooth transition on national security matters, voluntarily subjected certain of its records to the FOIA and the FRA does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to those statutes.

We agree with the Government on this point as well. The NSC’s prior references to itself as an agency are not probative on the question before the court — whether the NSC is indeed an agency within the meaning of the FOIA; quite simply, the Government’s position on that question has changed over the years. Moreover, as Armstrong conceded at oral argument, even as the NSC was treating some of its institutional records as though they were subject to the FOIA and the FRA, it was declining to treat other records in that way. In sum, the NSC’s past behavior has been inconsistent — both logically and factually — and therefore does not illuminate the legal question here in dispute.

Finally, the district court held in the alternative that the NSC did not set forth, in the March 25, 1994 memorandum from William H. Itoh to William H. Leary, a reasoned explanation for its change of position on the question whether it is an agency, and that this is a sufficient ground in itself, pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), to set aside the Government’s newly adopted position as arbitrary and capricious. 877 F.Supp. at 706 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983)). Armstrong made no such argument in district court, nor does he defend the judgment of the district court upon this alternate ground. In any event, invocation of the APA begs the question whether the NSC is an “agency” within the meaning of that term as it is used in the APA. See 5 U.S.C. § 551(1) (agency defined as “each authority of the Government of the United States”). Because we have concluded that the NSC is not, after all, an agency subject to the FOIA, the district court’s alternative rationale, regardless of its provenance, is now moot.

C. The Legislative History of the PRA

Before concluding, we respond to the suggestion elaborated at some length in the dissent that the status of the NSC as an agency could be resolved by looking instead to the legislative history of the PRA rather than to our own prior cases. The argument, in brief, goes like this: When the Congress enacted the PRA in 1978, both the Congress and the President were aware that the NSC complied with the FOIA. Moreover, the Congress intended that any agency which, apparently like the NSC, “is now subject to the FOIA would remain so.” H.R. Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. Accordingly, by its express terms, the PRA excluded from coverage any documentary materials that' are official records of an agency subject to the FOIA. 44 U.S.C. § 2201(2)(B). Ergo, for us to hold that the NSC is not an agency within the meaning of the FOIA, and is therefore subject to the PRA rather than to the FRA, is contrary to the intent of the Congress that passed the PRA.

The legislative history of the PRA also reveals, however, that the Congress intentionally aligned the definition of “agency” in the FOIA with the test we had announced in Soucie. See Meyer, 981 F.2d at 1291 (“As clearly shown by the legislative history ... Congress intended to codify our earlier decision ... in Soucie”)', H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14-15 (1974). By incorporating the Soucie test, the Congress made a deliberate decision to forego specifically listing the NSC and other EOP units as agencies, as had been done in the House Report. H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6274. Instead, the Congress adopted a flexible, judicially-created test and handed the matter back to the courts, anticipating that we would continue to shape and refine the basic Soucie definition — as indeed we did when we established the three-factor test in Meyer. There is nothing to indicate that the Congress intended specifically to define the NSC as a FOIA agency apart from a judicial determination to that effect.

III. Conclusion

Based upon the record before this court, we conclude that the NSC is not an agency under the FOIA and, therefore, that its records need not be managed in compliance with the FRA. The NSC has a self-contained structure, but the proximity of the NSC’s operations to the President, who chairs the statutory Council, is more significant; the close working relationship between the NSC and the President indicates that the NSC is more like “the President’s immediate personal staff” than it is like an agency exercising authority, independent of the President. Accordingly, for Armstrong to prevail, his showing regarding the nature of the authority delegated to the NSC must be compelling, which on this record it is not. For the foregoing reasons, the judgment of the district court that the NSC is an agency under the FOIA is

Reversed.

For clarity of exposition, we refer to the President and the cabinet-level officials who constitute the senior decision-making body of the NSC as the "Council” or "statutory Council.” We use "the NSC” to mean, depending upon the context, either the staff that supports the statutory Council or the entire organization, including both the Council and the staff.