author: TAMM, Circuit Judge:

text:
    MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, United Gas Pipeline Co. and Interstate Natural Gas Association of America, Intervenors.
    No. 73-1506.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 5,1974.
    Decided Sept. 3, 1974.

      George E. Morrow, Memphis, Tenn., with whom Reuben Goldberg, Washington, D. C., was on the brief, for petitioner.
    Gregory Grady, Atty., Federal Power Commission, with whom Leo E. Forquer, Gen. Counsel, George W. McHenry, Jr., Sol. and William M. Sawyer, Atty., Federal Power Commission, were on the brief for respondent.
    Christopher T. Boland, James M. Broadstone and Jerome J. McGrath, Washington, D. C., were on the brief for intervenor, The Interstate Natural Gas Association of America.
    William B. Cassin, Alvin M. Owsley, Jr., and Robert A. Webb, Houston, Tex., were on the brief, for intervenor, United Gas Pipeline Company.
    Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.
   TAMM, Circuit Judge:

This case is before the court on petition for review of an order of the Federal Power Commission (“the Commission”) granting United Gas Pipe Line Company’s (“United”) request for an increase in its annual depreciation rate to 5 percent. Petitioner, Memphis Gas Pipe Line Company (“Memphis”), an in-tervenor in the Commission proceedings, is a large, municipally-owned gas distribution company which indirectly purchases gas from United. Memphis challenges the new depreciation rate on the ground that- it is insufficiently supported by factual evidence. We agree with petitioner and remand the matter to the Commission.

The instant proceedings began when United filed, pursuant to Section 4(e) of the Natural Gas Act, for an increase in its rates and charges for its sales of natural gas for resale in interstate commerce. After negotiations among the parties, a settlement was reached with respect to all issues involved in United’s rate filing except the issue of the proposed change in depreciation rate. Hearings were held on that issue.

Prior to the rate filing, United had been utilizing a composite depreciation rate of 2.88 percent. This rate had been established in 1943, based on a physical life estimate of the service lives of United’s systems. United proposed an increase in depreciation rate to a uniform annual rate of 5 percent for the period 1971-1976 which would be reduced in succeeding 5 year periods, with a resulting twenty year (1971-1990) average of 3.88 percent.

On February 1, 1972 Chief Administrative Law Judge (then Presiding Examiner) Zwerdling issued his Initial Decision denying United’s proposed increase. The Commission, on January 11, 1973 reversed the Initial Decision and held that the depreciation rate to be used by United from and after January 1. 1971 through December 31, 1975, would be 5 percent. Petitioner’s application for rehearing was denied, and this appeal followed.

It may be helpful, before addressing the facts of this particular case to examine briefly the concept of depreciation and the Commission’s articulated policies with respect thereto.

Depreciation is generally defined as “the loss, not restored by current maintenance, which is due to all the factors causing the ultimate retirement of the property.” Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 167, 54 S.Ct. 658, 664, 78 L.Ed. 1182 (1934). The Supreme Court has long recognized that depreciation charges are a legitimate part of a utility’s operating expenses. In fact, the Commission enjoys an explicit grant of power from Congress to set depreciation rates for natural gas pipelines. Section 9 of the Natural Gas Act provides:

The Commission may, after hearing, require natural-gas companies to carry proper and adequate depreciation and amortization accounts in accordance with such rules, regulations, and forms of account as the Commission may prescribe. The Commission may from time to time ascertain and determine, and by order fix, the proper and adequate rates of depreciation and amortization of the several classes of property of each natural-gas company used or useful in the production, transportation, or sale of natural gas.

15 U.S.C. § 717h(a) (1970). Pursuant to the above-quoted provision of the Act, the Commission has adopted and published a Uniform . System of Accounts for Natural Gas Companies which defines depreciation as:

the loss in service value not restored by current maintenance, incurred in connection with the consumption or prospective retirement of gas plant in the course of service from causes which are known to be in current operation and against which the utility is not protected by insurance. Among the causes to be given consideration are wear and tear, decay, action of the elements, inadequacy, obsolescence, changes in the art, changes in demand and requirements of public authorities, and, in the case of natural gas companies, the exhaustion of natural resources.

18 C.F.R. pt. 201, Definitions, ft ll.B. (1973).

This definition of depreciation, conveniently brings us back to the merits of the matter sub judice, that is, what factors or causes of loss in service value shall be given what weights in the context of the current national shortage of natural gas. In more concrete terms, the parties disagree over whether and to what extent diminished gas reserves should be considered in establishing United’s depreciation rate.

United’s now superceded depreciation rate of 2.88 percent was set in 1943, a time when there appeared to be abundant supplies of natural gas. Therefore, United, in keeping with industry practice, had determined the useful service life of its depreciable properties in terms of the physical life of those properties ; the underlying assumption being that gas reserves would be sufficient to insure that the useful life of the properties would approximate their physical life. In recent years, however, the gas reserve situation has dramatically worsened. United submitted evidence that its reserve life index had declined from 29.91 years in 1948 to 8.72 years in 1970. The new depreciation rates, proposed by United and accepted by the Commission, are based on the premise that this change of conditions, i. e., the lessening of gas reserves, requires that the potential exhaustion of natural resources now be given greater weight. In short, the Order hereunder review adopts a depreciation rate based on reserve life rather than physical life.

Petitioner characterizes the new depreciation rate as a “radical change” which “revolutionize[s] depreciation accounting” and “perverts the whole traditional concept of depreciation.” We cannot agree with these characterizations. In the first place, the definition of depreciation in the Commission's Uniform System of Accounts specifically identifies “exhaustion of natural resources” as one of the potential causes for loss in service value which may, in proper circumstances, be given consideration. Exhaustion of natural resources is not a newly articulated component of the depreciation formula; rather, it has been a part of the depreciation formula since the Commission first promulgated its Uniform System of Accounts in 1940. The Commission admits that in the past, reserves have been accorded little significance in individual cases. We think that the failure of the gas reserve component to play a larger role was merely the result of the then reassuringly large gas supply rather than an immutable indicium of its nugatory value as part of the depreciation formula. Indeed, at least one case, perhaps a precursor, has specifically considered exhaustion of natural resources. See United Fuel Gas Co., 31 FPC 1342, 1353 (1964); see generally Panhandle Eastern Pipe Line Co., 13 FPC 53 (1954), reversed on other grounds sub nom., City of Detroit, Michigan v. FPC, 97 U.S.App.D.C. 260, 230 F.2d 810 (1955), cert. denied, 352 U.S. 829, 77 S.Ct. 34, 1 L.Ed.2d 48 (1956).

Since exhaustion of natural resources has always been an articulated factor in depreciation calculation, and has been utilized in the past in specific factual situations where the Commission thought it appropriate, we do not accept petitioner’s characterization of the Commission Order here as revolutionary.

We now turn to the essential question presented for decision in this case: whether the new depreciation rate of 5 percent ordered by the Commission is “proper and adequate” as required by the Act. 15 U.S.C. § 717h(a) (1970). The standards of judicial review of Commission action were clearly articulated by the Supreme Court in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), where Mr. Justice Harlan, writing for the majority, stated:

[T]he responsibilities of a reviewing court are essentially three. First, it must determine whether the Commission’s order, viewed in light of the relevant facts and of the Commission’s broad regulatory duties, abused or exceeded its authority. Second, the court must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order’s essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable.

390 U.S. at 791-792, 88 S.Ct. at 1373. Thus, while we recognize a duty to sustain Commission action which falls within a “zone of reasonableness,” the Commission must articulate some rational connection between the facts found, supported by substantial evidence, and the action which it took.

The Commission considered the question before it to be two-fold:

whether United has shown that its reserve outlook is such that the life of its reserves should become a major factor in estimating the useful service life of its gas plant and, if so, whether its proposed uniform 5% rate, which would decline in approximate 5-year stages to a maximum 20-year average of 3.88%, is an appropriate allocation of depreciation.

Opinion No. 645 at 10, J.A. at 235. Finding “that United should be allowed to increase its depreciation rate as a result of its declining reserve life index,” id., the Commission continued:

On the basis that the current gas shortage and United’s critically low reserve life index will not allow United to expand sales in the future as it has in the past, will probably force it to utilize much of its property at less than its full capacity, and could force it to abandon some of its property prematurely, we find it prudent and in the public interest to allow United to utilize a rate of depreciation which reflects the undeniable change in United’s gas supply which has occurred since the currently effective rate of 2.88% was established in 1943.

Opinion Ño. 645 at 11, J.A. at 236.

It is clear from our discussion above that the Commission can certainly take “exhaustion of natural resources” into account in establishing proper depreciation rates. However, in any specific determination of depreciation, the Commission is obligated to ascertain the useful life of the particular piece of depreciable property involved. The substitution, as here, of a higher reserve life based depreciation rate for a lower physical life based rate will necessarily increase gas prices to current consumers. It has long been recognized that one of the primary purposes of the Natural Gas Act is to “ensure that natural gas be distributed at the lowest possible price.” Therefore, the Commission must make affirmative findings that the exhaustion of natural resources has caused the useful life of this particular property to be reduced to the extent that physical life (of less expense to consumers) is no longer an appropriate measure of useful life. The Commission did not clearly indicate an understanding that it must find that declining gas reserves have caused the useful life of United’s property to decrease. It did however, in the passage quoted above, identify three discrete effects said to be caused by “the current gas shortage and United’s critically low reserve life index.” Low reserves (1) “will not allow United to expand sales in the future as it had in the past, [2] will probably force it to utilize much of its property at less than its full capacity and [3] could force it to abandon some of its property prematurely.” Opinion No. 645 at 11, J.A. at 236. Petitioner contends that these findings are not supported by factual evidence, and therefore, the ultimate finding of a diminution of useful life which is based upon these findings, cannot stand. After a thorough review of the record, we agree with petitioner.

United offered evidence that while its reserve life index was at 29.91 years in 1948, by 1970, it had declined to 8.72 years. The decline in United’s reserve life index was shown to be slightly greater than the decline in the composite reserve life index for all United States natural gas companies.

Addressing the question of the need for a higher depreciation rate, United offered the testimony of Mr. Brooks, who prepared and sponsored Exhibit 21, a depreciation exhibit. The exhibit is based on the assumption that United’s gas transmission business will terminate in 1990. Mr. Brooks' data indicated that if the initial 5 percent rate were approved (and decreased at 5 year intervals to a twenty year average rate of 3.88 percent) United could expect to recover its present investment, together with most investments made during the twenty year period. In contrast, if the old depreciation rate of 2.88 percent were continued, and if United terminated operations in 1990, Exhibit 21 indicated that 23.52 to 37.42 percent of United’s investments during the next twenty year period would remain unre-covered. Mr. Brooks testified that another United witness, Mr. Barnett, had provided him with the data relating to United’s yearly gas supply, sales requirements, and volume of gas reserves to be added annually. Mr. Barnett testified that his figures concerning gas reserves to be added, used by Mr. Brooks, represented the volume of gas which would be required to meet United’s then (1969) existing resale contract requirements. Thus, the depreciation exhibit is not based upon any forecast or prediction of the future reserves which actually may be expected to be added to United’s system. The figures used, in short, make no attempt whatsoever to forecast the probable or even possible state of United’s future reserves.

Both petitioner and the Administrative Law Judge stress the fact that Exhibit 21 was premised on the fact that United would cease gas transmission operations in 1990. This, they argue makes the whole exhibit irrelevant given the fact that no United witness testified that termination was even the remotest possibility. In fact, all witnesses indicated, and the Commission specifically found, that United would be in business well after 1990. The problem the Commission must resolve is the probable useful life of the specific pipeline systems in question. Obviously, proof that a company would cease operations at a particular date would be relevant since it should be allowed to depreciate fully its properties by the known termination date. Here, however, it is not even argued that United will terminate gas operations. The Commission must develop evidence and make findings on the only relevant question : What is the useful life of United’s depreciable property ? Therefore, in attacking Exhibit 21, petitioner has not stated its case with precision. The flaw in Exhibit 21 is not that it is based on a presumed termination; rather, the exhibit is of little value because it contains no data predicated on any forecast of the future reserve life index, and therefore cannot provide any support for a conclusion that the useful life of United’s property has declined.

The only' record evidence supporting the change in depreciation rate came from Mr. Brooks, who testified that the higher rate was needed to implement a management decision based upon “United’s experience . . . that the economic life of the property in question is much less than its physical life”. However, there is no record evidence to support witness Brooks’ conclusion that the economic (useful) life of the property is less than its physical life, or that it has even diminished as a result of the declining reserve life index. We previously noted that the Commission mentioned three effects of “the current gas shortage and United’s critically low reserve life index.” We find no record evidence to support any one.

The Commission made the prediction that declining gas reserves “could force [United] to abandon some of its property prematurely.” If there were evidence that United contemplated the abandonment of any of its property, this would, of course, have a direct bearing on the useful life of such property. However, the record contains no evidence that any United property will be abandoned prior to the exhaustion of its physical life. Indeed, if the evidence supports any inference, it is to the contrary. The record, in short, does not contain evidence to support the findings offered by the Commission in support of its conclusion that the old depreciation rate had become inadequate.

Further, the Commission stated that it would be impossible for “United to expand sales in the future as it had in the past.” We repeat that nowhere in the record is there any estimate of United’s future reserves or future gas sales. The Commission cannot reach the conclusion that the useful life of any property has diminished based only on Exhibit 21, which was prepared on an assumption not even arguably related to United’s probable future. Further, even if United’s sales should “fail to increase,” this cannot support an inference that the useful life of its property has lessened. As pointed out by petitioner, the present depreciation rate was established on the basis of an estimated physical life which was not related to a prediction of ever expanding sales from 1943-1990. If sales should remain at their present rate, or even decline, this does not necessarily mean, without more supportive evidence, that the useful life of the property has declined.

We recognize that a decline in sales, if it occurs, will mean a rate increase to the consumer even though the depreciation rate is not increased. The amount of annual depreciation, though constant in dollars, will increase in unit cost of service, per Mcf., as the total depreciation cost is divided among a smaller number of units. The Commission now asserts that the spectre of such a situation, unsupported by any evidence that it could occur in fact, justifies the new depreciation rate. This argument cannot substitute for the requisite finding here lacking: that the useful life of United’s depreciable property has in fact been reduced.

Finally, the Commission found that the gas shortage “will probably force [United] to utilize its property at less than full capacity.” By this, we presume that the Commission meant less than the full capacity of individual pieces of property, e. g., pipelines will carry less than 100 percent of the gas that each pipeline could carry. However, there is no evidence in the record, nor reason to assume, that the service life of any depreciable property was originally computed on the basis that it would always be operated at 100 percent capacity. Absent such evidence, it is not relevant that a particular pipeline, for example, might now operate at less than its full capacity. There must be some evidence to establish a relationship between a diminution in operating load and a reduction in useful life of the property.

As we have noted above, a forecast of future decline in volume might warrant a present increase in depreciation rates, but to do so would require a projection based on evidence of probable future reserves and sales. In this case, the Commission has essentially accepted United’s proposed depreciation rate as not “irrational or unreasonable.” Opinion No. 645 at 13, J.A. at 238. However, it is for the Commission, not the utility, to determine a depreciation charge that is proper and adequate. The Commission cannot indulge the utility in an abstract projection which is premised on termination of service and which amounts to a “worst case” analysis. Even assuming continued serviceable life, declining use of pipeline facilities might conceivably lead in future years to depreciation dollars per unit of gas so high as to be unreasonable. The natural gas company would have a direct interest only if there were a showing that its investment in the pipeline will not be recapturable out of depreciation reserves — a showing not remotely made in the present record. Otherwise, the only basis for an increase in current amounts of depreciation would be protection of future consumers, to avoid saddling them with “undue” burdens per unit of gas consumed. The current reality, however, is that the proposal will yield the company the benefit of an increase in the burden of present consumers. A current increase in their burden requires not mere fears for the future but facts and findings, a statement of reasons that is supported by concrete inferences from substantial evidence, and is not to be snatched from the air on a purely hypothetical “worst case” analysis like that in the present record.

The Commission recognized, and we agree, that the decision was a difficult one which must be made, in part, by extrapolation from less than extensive empirical evidence. Opinion No. 645 states:

We do not have available to us the complete empirical data which we would like to have in order to render this decision. We do not find fault in the fact that United did not present such data to us for, as we have indicated, the impact of the gas supply shortage is at this time largely unquantifiable. We may not, however, refuse to recognize its effect simply because the solution we must reach may be less than ideal — all alternatives open to us at this point present the same difficulty.

Opinion No. 645 at 14, J.A. at 239. The Commission now contends that this court should sustain Opinion No. 645 as a proper exercise of Commission expertise in making necessary future projections, and suggests that we give great weight to the Commission’s continuing ability to monitor the effects of this order and adjust the depreciation rate should it later be proved erroneous. While we recognize that agency expertise is to be accorded deference and that the Commission can correct present errors, neither of these principles can substitute for the adequate evidentiary basis upon which the Commission’s finding must rest. The Commission cites Alabama-Tennessee Natural Gas. Co. v. FPC, 359 F.2d 318 (5th Cir.) cert. denied, 385 U.S. 847, 87 S.Ct. 69, 17 L.Ed. 2d 78, rehearing denied, 385 U.S. 964, 87 S.Ct. 390, 17 L.Ed.2d 310 (1966), in support of its contention that a Commission prediction of future events should be conclusive. The Fifth Circuit there stated:

It is true that the Commission’s decision rests on its reading of the future. But clairvoyance is part of the daily grind of a regulatory agency. Whether flow-through or normalization is the rule, the agency must base the rule on some projection into the future.

Id. at 339. However, the court continued:

On the record before us and the facts outside of the record which the Commission properly notices, the Commission’s ruling is based on substantial evidence of present conditions and a fair guess as to future conditions in the pipeline industry.

Id. (Emphasis added.) The court in Alabama-Tennessee clearly identified the need for record evidence as to present conditions and “a fair guess as to future conditions.” The record here contains no evidence which can support an inference that the present depreciation rate is inadequate. More importantly, the Commission has developed no evidence as to future conditions. It has made no “fair guess” as to United’s future reserves, and no findings at all on the present useful life of United’s deprecia-ble property.

We realize the question here concerns unknown future gas sales of presently unacquired future gas reserves. However, the fact remains that even in 1943, no natural gas companies enjoyed a reserve life index equal to or greater than the physical life of their plant. There is now, as there always has been, the certainty that “[t]he ultimate exhaustion of the supply is inevitable in the case of all natural gas companies." FPC v. Hope Natural Gas Co., 320 U.S. 591, 606, 64 S.Ct. 281, 289, 88 L.Ed. 333 (1944). We have no doubt that with a declining reserve life index, the risk that depletion of natural resources will shorten the useful life of physical assets has increased. An eight year reserve life index logically entails more risk of future abandonment than does a 25 year index. We are not satisfied with a record that contains only a recitation of the decline of the reserve life index. In order to be “just and adequate”, a reserve life depreciation rate must be based upon the useful life of the particular property involved. We therefore believe that it is the Commission’s obligation to make some -reasoned estimate of the useful life of the property here involved, even though to do so would no doubt require an estimate of future reserves. We realize that such a prognostication would necessarily be only an estimate, but at least the Commission would thereby attempt to ascertain how the gas shortage had affected the useful life of this property.

In arriving at such a reasoned estimate, the Commission must exercise its own judgment based upon evidence pertinent to what it really expects will happen. In doing so, the Commission will, of course, have the benefit of United’s submissions which, as we have indicated, must be directed to probable future conditions. In addition, the Commission should take into account current Commission policies designed to increase or to sustain industry-wide gas supply. Further, the Commission might be able to develop evidence concerning the probable extent and location of reserves which United might utilize at some future date. In this regard, we note that the United system is located in Louisiana, Texas, and Mississippi, an area containing 73 percent of the United States’ total gas reserves.

We recognize that there is no one “correct” depreciation rate; thus, the Commission could develop a range of rates which would fall within a “zone of reasonableness.” Such findings would be, of course, sustained if supported by record evidence. See, e.g., Permian Basin Area Rate Cases, supra, 390 U.S. at 767, 88 S.Ct. 1344. While the Commission is accorded wide latitude, its findings must, at the least, be “reasoned inferences from substantial evidence.”

We reiterate our statement that the Commission is certainly correct in taking into account the exhaustion of natural resources when it establishes the proper depreciation rate for a particular natural gas company. The problem in this case is that the Commission attempted to cry “shortage” and then to take action without establishing that the useful life of this depreciable property had been adversely affected. The Commission must attempt to identify the useful life of United’s property. There must be a rational connection shown between the declining reserve life index and the Commission’s response to it.

For the reasons stated above, the Order under review is reversed and the matter remanded to the Commission for further proceedings consistent with this opinion.

Reversed and remanded.

      . Memphis purchases all of its gas from another pipe line company which in turn ob-' tains a substantial portion of its gas from United. Petitioner’s Br. at 2.

      . FPC Docket No. RP71-41, filed November 13, 1970.

      . 15 U.S.C. § 717c(e) (1970) (hereafter “the Act”).

      . FPC Docket No. G-148 reported at 3 FPC 402 (1943).

      . Initial Decision, FPC Docket No. RP71-41 (February 1, 1972). The decision appears at 195-207 of the Joint Appendix (hereafter J.A.).

      . Opinion No. 645 (issued January 11, 1973) (unpublished), J.A. at 226-40.

      . Id. at 240. The effective dates for the new depreciation rate were later changed to June 1, 1971 through May 31, 1976 in Opinion No. 645-A (issued March 9, 1973) (unpublished), J.A. at 243-45.

      . Opinion No. 645-A, supra note 7, J.A. at 245.

      . Hee generally 1 A. Priest, Principles of Public Utility Regulation 112-16 (1969) ; J. Bonbright, Principles of Public Utility Rates 192-223 (1961).

      . City of Knoxville v. Knoxville Water Co., 212 U.S. 1, 29 S.Ct. 148, 53 L.Ed. 371 (1909) ; Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182 (1934) ; FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942) ; FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

      . Reserve life index is a ratio: tlie numerator being the company’s total existing gas reserves; the denominator being the total production for a given year. The resulting figure therefore rejiresents the number of years the company could continue to produce gas at the level of the given year if no additional gas reserves were added.

      . Petitioner’s Br. at 13.

      . Id. at 14.

      . Id. at 23.

      . 18 C.F.R. pt. 201, Definitions, K ll.B. (1973).

      . See Uniform System of Accounts Prescribed for Natural Gas Companies Subject to the Provisions of the Natural Gas Act, Order 141, 12 Fed.Reg. 8461, 8608 (December 19, 1947). While not formally codified until 1947, the system of accounts became effective on January 1, 1940. 12 Fed.Reg. at 8607.

      . Opinion No. 645 at 10, J.A. at 235.

      . See also Canadian River Gas Co. v. Public Serv. Comm’n of Colorado, 3 FPC 32, 47 (1942) ; Interstate Natural Gas Co., Inc., 3 FPC 416, 423-24 (1943).

      . This case concerned the establishment of area-wide gas producer rates. Such rates are required to be “just and reasonable” under sections 4(a) and 5(a) of the Natural Gas Act. 15 U.S.C. §§ 717c(a), 717d(a) (1970). Although Permian did not directly construe section 717h concerning depreciation rates, we believe that the standards established for judicial review of Federal Power Commission action are fully applicable here. The depredation element, after all, must be “proper and adequate” if the end result, i. e. the rate, is to pass muster under the rubric of “just and reasonable.”

      . Permian Basin Area Rate Cases, 390 U.S. 747, 767, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).

      . See FPC v. United Gas Pipe Line Co., 393 U.S. 71, 72-73, 89 S.Ct. 55, 21 L.Ed.2d 55 (1968) quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).

      . It could be argued that the second half of the question necessarily includes the first in that the 5 percent rate allowed could not be “an appropriate [presumably meaning ‘proper and adequate’ within section 717h of the Act] allocation” if the evidence revealed that declining reserves would in no way affect the useful life of the depreciable property. As we indicated above, our view of the question presented focuses upon whether the 5 percent figure meets the statutory standard of “proper and adequate.”

      . Atlantic Refining Co. v. Public Serv. Comm’n, 360 U.S. 378, 388, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959) ; Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 685, 74 S.Ct. 794, 98 L.Ed. 1035 (1954) ; FPC v. Hope Natural Gas Co., supra, 320 U.S. note 10 at 611, 64 S.Ct. 281; Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d 318, 331 (5th Cir.), cert. denied, 385 U.S. 847, 87 S.Ct. 69, 17 L.Ed.2d 78, rehearing denied, 385 U.S. 964, 87 S.Ct. 390, 17 L.Ed.2d 310 (1966).

      . United Ex. 21, Table 1, J.A. at 177; United Ex. 32, Schedule 1, J.A. at 192.

      . Testimony of Mr. Barnett of United, J.A. at 97-99. Mr. Barnett prepared and sponsored United Ex. 32, and his testimony at J.A. 97-99 served to augment Schedule 1 of Ex. 32 for calendar year 1970.

      . United Ex. 32, Schedule 1, J.A. at 192.

      . Direct examination of witness Brooks, J. A. at 36-35; cross-examination of witness Brooks, J.A. at 113-47; redirect examination of witness Brooks, J.A. at 148-58.

      . United Ex. 21, J.A. at 173-90.

      . J.A. at 27, 31.

      . J.A. at 32; see United Ex. 32, Schedule 3, J.A. at 194. The figures in Ex. 32, Schedule 3 were those used by witness Brooks in his depreciation exhibit; United Ex. 21, Table 2, J.A. at 178.

      . Petitioner’s Br. at 7-9.

      . J.A. at 200.

      . Testimony of witness Brooks, J.A. at 30; Testimony of witness Barnett, J.A. at 41.

      . “[W]e do not conclude that United will not be in the gas business in 1990. On the contrary, we would expect United to be in the gas business for many years after 1990.” Opinion No. 645 at 11, J.A. at 236.

      . The Commission agrees with this statement of the issue. See Respondent’s Br. at 15.

      . See, e. q., United Fuel Gas Co., 31 FPC 1342 (1964).

      . J.A. at 26.

      . See supra notes 33, 34 and accompanying text.

      . The Commission in its Brief makes the statement: “[T]he Company demonstrated that its then-effective 2.88% depreciation rate had become unrealistic and inadequate.” Respondent’s Br. at 14. In support of this statement, the Commission directs our attention- to three sources: (1) Opinion No. 645 at 10, J.A. at 235; (2) Opinion No. 645 at 12, J.A. at 237; and (3) United Ex. 32, Schedule 2, J.A. at 193. Items (1) and (2) are, of course, not record evidence, but rather the Commission’s conclusions. Item (3), a chart showing United’s historical gas reserves 1948-1969, contains no information whatsoever relating to the adequacy of the depreciation rate. We think it significant that the Commission is unable to direct us to record evidence supporting its conclusion that the old rate had become “unrealistic and inadequate.”

      . Petitioner’s Br. at 14.

      . The Commission's opinion contains not even the glimmer of a thought that annual depreciation requirements would zoom so high as to be unreeapturable in fact, and thus result in an instance of economic obsolescence.

      . Respondent's Br. at 16-20.

      . It is possible that insufficient reserves could have a greater effect on one type of comi)any i>roperty, or x>roperty located in one area, than on other property. In such a case, the Commission could arrive at a corn-posite depreciation rate, taking into account potentially differing useful lives, rather than as here, a uniform rate systemwide.

      . City of Chicago v. FPC, 128 U.S.App.D.C. 107, 385 F.2d 629, 637 (1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1028, 19 L.Ed.2d 1133 (1968).

      . J.A. at 201. See supra note 43.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    George N. DRAPANIOTIS, Appellant, v. Daniel Malone FRANKLIN.
    No. 73-1021.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 4, 1974.
    Decided Oct. 4, 1974.
    Rehearing Denied Oct. 25, 1974.
    Robert M. Sielaty, Arlington, Va. (appointed by this court), with whom Richard A. Kurshner  (student counsel also appointed by this court), was on the brief, for appellant.
    Denver H. Graham, Washington, D. C., with whom Albert E. Brault, Washington, D. C., was on the brief, for ap-pellee.
    Before WRIGHT and ROBINSON, Circuit Judges, and DAVIES, Senior District Judge.

       Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this court.

       Of the United States District Court for the District of North Dakota, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   PER CURIAM:

The single issue presented by this appeal is whether the trial court erred in directing a verdict for appellee at the close of appellant’s case. In resolving this issue we must, of course, view the evidence, and the permissible inference therefrom, in the light most favorable to appellant. Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Muldrow v. Daly, 117 U.S.App.D.C. 318, 320, 329 F.2d 886, 888 (1964).

Viewed in this light, the evidence showed that appellant, age 65, at about 5:15 P.M. on December 21, while crossing Georgia Avenue in the middle of the block, was struck by a car driven by ap-pellee. Before entering the street, appellant looked in both directions and did not see any cars coming. It was a clear evening and no parked cars were on the street to obstruct vision. When appellant was hit, he was in the middle of the street near the white dividing line. He never saw appellee’s car before the accident. Nor did appellant hear a horn sound or the squealing of brakes, even up to the moment of impact.

Unquestionably, appellant was negligent in crossing the street in violation of Section 53(a) of the Traffic and Motor Vehicle Regulations for the District of Columbia, Part I — -Rules of the Road. At the same time, the jury could also have found that appellee was negligent in violating Section 54 of the same Regulations in not exercising “due care- to avoid colliding with any pedestrian” and in failing to “give warning by sounding the horn.” The question arises, then, whether appellee had the last clear chance to avoid the accident.

Although there have been many formulations of the doctrine, it is now clear that, where a pedestrian is in a position of peril, even by reason of his own negligence, of which he is unaware or unable to extricate himself, then an obligation arises on the part of the driver of a car to avoid striking him if the driver can do so by the exercise of reasonable care. Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 300-301, 449 F.2d 956, 962-963 (1971); Landfair v. Capital Transit Co., 83 U.S.App.D.C. 60, 61-62, 165 F.2d 255, 256-257 (1948); Kelly Furniture Co. v. Washington Ry. & Electric Co., 64 App.D.C. 215, 217, 76 F.2d 985, 987 (1935). See also W. Prosser, The Law of Torts § 65 (3d ed. 1964). “It is not necessary that the defendant have been negligent prior to the time at which he discovered or should have discovered the dangerous position in which the plaintiff hád negligently put himself. It is enough that thereafter he fails to utilize with reasonable care the ability which he then has to avert the plaintiff’s harm.’-’ Restatement (Second) of Torts § 479 (1965). Thus the proximate cause is the failure to avoid the accident in circumstances where the defendant, and not the plaintiff, can reasonably do so.

Applying the principle of last clear chance to the facts of this case, viewing the evidence as we have indicated in the light most favorable to appellant, we cannot say that the jury could not have reasonably found for the plaintiff. Certainly the evidence was sufficient to put the defendant to his proof or risk a jury verdict against him.

Reversed.

      . Section 53(a) provides:
      Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
      See Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 301-303, 449 F.2d 956, 963-965 (1971), and eases there cited.

      . Section 54 reads:
      Notwithstanding the provisions of this Article and of Article III, Sec. 11, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise precaution upon observing any child or any confused or incapacitated person upon a roadway.
      See Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 E.2d 626, 629 (1960) ; Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14 (1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944).

      . Moreover, should the jury here find that appellee violated § 54 of the Traffic and Motor Vehicle Regulations, that “is itself evidence of proximate cause where the injury is generally of the kind intended to be avoided by the law or regulation involved. If that evidence is not rebutted or offset, proximate cause is established as a matter of law. Where other evidence provides an offset, proximate cause becomes an issue for the jury * * *_»> Bowman v. Redding & Co., supra note 1, 145 U.S.App.D.C. at 302, 449 F.2d at 964.


author: McGOWAN, Circuit Judge:

text:
    WASHINGTON RESEARCH PROJECT, INC. v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE et al., Appellants.
    No. 74-1027.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 24, 1974.
    Decided Sept. 12, 1974.
    Rehearing Denied Nov. 18, 1974.

      David M. Cohen, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept, of Justice, were on the brief, for appellants. John A. Terry and Michael J. Ryan, Asst. U. S. Attys., also entered appearances for appellants.
    Michael B. Trister, Washington, D. C., for appellee.
    Bruce R. Hopkins and Robert 0. Tyler, Washington, D. C., filed a brief on behalf of the Association of American Medical Colleges as amicus curiae urging reversal.
    Before McGOWAN and ROBB, Circuit Judges, and WEIGEL, District Judge for the Northern District of California.

       Sitting by designation pursuant to Title 28 U.S.Code Section 292(d).

   McGOWAN, Circuit Judge:

Appellee brought this action in the District Court to compel disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, of certain information pertaining to eleven specifically identified research projects that had been approved and funded by the National Institute of Mental Health (NIMH), a unit of the Public Health Service of the Department of Health, Education, and Welfare (HEW). The eleven projects all involve research into the comparative effects of various psychotropic drugs on the behavior of children with certain learning disabilities. After in camera inspection of sample documents, the District Court ordered disclosure of all of the information sought, except that it contemplated that certain deletions might conceivably be made in respect of statements of opinion about the qualifications and competence of applicants for grants. The court further ordered the agency to amend its application instructions and regulations to conform with its decision. 366 F. Supp. 929. For the reasons hereinafter appearing, we affirm in part and reverse in part.

I

The information in dispute is contained in three types of documents:

1. The Grant Application.

The initial grant application, among other things, identifies the research applicant, any research organization with which he may be affiliated, his qualifications and experience, the budget estimates, and the research protocol or design. Subsequent to the approval of the initial grant application, there may be filed continuation applications, renewal applications, and supplemental applications. Projects are approved for a specific “project period” that may extend over several years, 42 C.F.R. § 52.2(b), but a continuation application must be filed each year to report progress to date and justify support for the coming year. Id. § 52.14(d). Renewal applications are required for periods beyond the originally scheduled project period, while supplemental applications are required for additional grants awarded because the amount previously awarded proves inadequate to carry out the project properly. Id.

2. The Site Visit Report.

Outside consultants, engaged by HEW to review the grant application, frequently visit the location at which the research is proposed to be done, and thereafter prepare a report on their observations.

3. The Summary Statement (“pink sheet”).

When the outside consultants have completed their work, an NIMH staff member assigned to them prepares a summary of their observations and deliberations and reports their recommendations. This statement will draw upon the site visit reports, if any.

The process by which applications are processed by NIMH and HEW, an understanding of which is necessary to appraise the significance of each type of document for FOIA purposes, is set out in considerable detail in the opinion of the District Court. Accordingly, we begin with only a brief recapitulation of how the process works.

Research of the type sponsored by NIMH is often of a highly sophisticated and specialized nature. In order to assure competent evaluation of each proposal, a system of so-called “peer review” has been established, using the expertise of nongovernmental consultants functioning in panels organized around particular specialized disciplines within the broader field of biomedicine. These panels, called “initial review groups” (IRGs), consist of from ten to twenty members, only one of whom, the Executive Secretary, is an NIMH employee.

Applications for NIMH research support are referred by the Executive Secretary to one member of the IRG as “primary assignee,” and one or more other members with secondary responsibility. These assignees undertake to evaluate the application and gather such additional information as may be necessary to that task. This may involve a “site visit” to the facility at which the applicant proposes to conduct his research. A site visit may be made, for example, in order to observe an experimental technique to be used in the proposed research.

An evaluation of each application, and a site visit report where applicable, are written by the assignee group and circulated to the whole IRG, together with the application, prior to its next meeting. (IRGs meet three times a year.) The application is discussed at length and a recommendation voted. If approval is recommended, it is also given a relative priority rating, since the cost of all proposals deemed worthy of funding may exceed the funds available.

Following the IRG meeting, the Executive Secretary prepares a Summary Statement for each application acted upon. The Summary Statement describes the proposal and recounts the substantive considerations that led the IRG to recommend approval or disapproval. It contains an opinion of the professional qualifications of the sponsor and an evaluation of his competence and facilities. The IRG’s evaluation of the risk to human subjects, if any, is included, as is also a reference to the site visit report, if there is one. If there is a minority of two or more, the minority’s view is also summarized, without attribution by name. The Executive Secretary may add a “Note” in order to clarify any matter not resolved by the IRG, call attention to factors other than scientific merit, including policy considerations, or incorporate information obtained subsequent to the IRG meeting at which the application was considered.

Each application and the corresponding pink sheet is submitted to the National Advisory Mental Health Council (NAMHC), which was established to “advise, consult with, and make recommendations to” the Secretary on Public Health Service activities in the field of mental health, 42 U.S.C. § 218(c). The NAMHC is composed of three officials —the Assistant Secretary for Health, the chief medical officer of the Veterans Administration, and a medical officer designated by the Secretary of Defense —and twelve private citizens appointed by the Secretary on the basis of their qualifications in science, medicine, and/or public affairs. 42 U.S.C. § 218(a).

The NAMHC may approve, disapprove, defer consideration of, or require additional IRG consideration of, any application. On occasion it does reject an IRG’s recommendation of approval or disapproval, but ordinarily, instead of passing upon the scientific merits of each application, it.gives primary attention to policy direction and emphasis, generally acting on applications in subject matter groups. Applicants are notified of the outcome, but only about 90% of those receiving approval are actually funded by NIMH, to which the Secretary has delegated this function, due to limitations on funds. There is some ambiguity as to whether funding is determined solely on the basis of the ratings given by the IRGs and NAMHC, but the ratings may be presumed to be very influential in the funding decision.

Each month NIMH makes public a list of all research grants awarded during the preceding month, including a general description of the project and its budget, and releases final progress reports received, except that release may be delayed up to six months pending publication by the researcher in a scholarly journal. The research design, proposed methods, and specific aims of a project are not made public, nor are the names or proposals of any applicants whose applications are disapproved.

II

The Freedom of Information Act requires disclosure, upon request, of the final opinions and identifiable records of each agency of the government, unless, in the case of the latter, they come within one of the nine specific exemptions in the Act. The burden of proof is on the agency opposing disclosure, and the exemptions therefrom are to be narrowly construed. The government relies upon three separate exemptions to justify nondisclosure of the various types of information here sought, as follows:

1. Exemption 4, for trade secrets and commercial or financial information received in confidence, is invoked to cover the research designs submitted in applications and described in the Summary Statements, site visit reports, and progress reports.
2. Exemption 5, for inter-agency or intra-agency memoranda that would not be subject to discovery in litigation, is said to cover the Summary Statements and site visit reports in their entirety, except insofar as purely factual information is involved.
3. Exemption 6, which applies to personnel, medical, and “similar” files the disclosure of which would be a clearly unwarranted invasion of personal privacy, is raised with respect to statements of opinion in the Summary Statements and site visit reports as to the professional qualifications and competence of applicants who received grants.

A. Exemption 4.

The essence of the argument that the research designs submitted in the expectation of confidentiality are trade secrets or commercial information is that “ideas are a researcher’s ‘stock-in-trade.’ ” Their misappropriation, which, it is claimed, would be facilitated by premature disclosure, deprives him of the career advancement and attendant material rewards in which the academic and scientific market deals, in much the same way that misappropriation of trade information in the commercial world deprives one of a competitive advantage. Indeed, the government has been at some pains to argue that biomedical researchers are really a mean-spirited lot who pursue self-interest as ruthlessly as the Barbary pirates did in their own chosen field. Whether this is the sad truth, or whether, as appellee suggests, “secrecy is antithetical to the philosophical values of science,” is not, however, an issue in this case; the reach of the exemption for “trade secrets or commercial or financial information” is not necessarily coextensive with the existence of competition in any form.

It is clear enough that a noncommercial scientist’s research design is not literally a trade secret or item of commercial information, for it defies common sense to pretend that the scientist is engaged in trade or commerce. This is not to say that the scientist may not have a preference for or an interest in nondisclosure of his research design, but only that it is not a trade or commercial interest. To the extent that his interest is founded on professional recognition and reward, it is surely more the interest of an employee than of an enterprise, and we are far from persuaded that Congress intended in Exemption 4 to apply terms drawn. from the business context to the employment market. We cannot, consistently with the Act’s recognized mandate to construe exemptions narrowly, see Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820, 823 (1973), cert. denied 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 672, stay denied, 404 U.S. 1204, 92 S.Ct. 7, 30 L.Ed.2d 8 (1971), extend them by analogies that lead so far away from the plain meaning of Exemption 4. Consequently, we hold that research designs submitted in grant applications are not exempt from disclosure under the Act. This holding extends to all types of applications — initial, continuation, supplemental, and renewal — and to progress reports made by grantees as part of the last three kinds of applications.

B. Exemption 5.

The applicability of Exemption 5 to the site visit reports made by members of the IRG, and to the Summary Statement written by the Executive Secretary to report on the IRG’s recommendation to the NAMHC, turns on whether the IRG is an “agency” under the Administrative Procedure Act, of which the FOIA is a part. If the IRG is indeed an agency, then appellee’s position that the Summary Statements and accompanying site visit reports constitute its final opinions, which must be made available, 5 U.S.C. § 552(a)(2)(A), is not without force. If, on the other hand, the IRG is not an agency but merely a unit within another agency, then these documents are identifiable records in the hands of that agency and it is our task to determine whether they are exempt from disclosure as intra-agency memo-randa.

1. The IRG as an agency vel non.

The APA defines the term “agency” to mean “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” with certain specific exceptions not applicable in this case. 5 U.S.C. § 551(1). The generality of this definition has required the commentators that have dealt with it to attempt an elaboration along more functional lines than the phrase “each authority” conveys, but recent cases have made it clear that any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of the government done. See Grumman Aircraft Engineering Corp. v. Renegotiation Board, 157 U.S.App.D.C. 121, 482 F.2d 710 (1973) (Regional Boards) (hereinafter Grumman II), cert. granted, 417 U.S. 907, 94 S.Ct. 2602, 41 L.Ed.2d 211 (1974); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1970) (Office of Science and Technology) ; International Paper Co. v. FPC, 438 F.2d 1349 (2d Cir. 1971) (Staff of FPC); Larche v. Hannah, 177 F.Supp. 816 (W.D.La.1959) (Civil Rights Commission), rev’d on other grounds, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). The unavoidable fact is that each new arrangement must be examined anew and in its own context.

Congress has authorized the Secretary of HEW to make only such mental health and medical research grants “as are recommended” by the various National Advisory Councils, in this case the NAMHC, 42 U.S.C. § 241(d), (i), that it established. 42 U.S.C. § 218. It also, however, authorized the Secretary to “appoint such advisory committees (in addition to those authorized to be established under other provisions of law) . as he deems desirable for the purpose of advising him in connection with any of his functions,” 42 U.S.C. § 217a(a), and to compensate nongovernmental members thereof. Id. at § 217a(b).

The authority to establish advisory committees by administrative action was first exercised in the period after World War II, when the vast expansion of supported biomedical research made it “impractical to encompass in a council membership the expertise in all the numerous disciplines, fields, specialties, and areas represented in biomedical research proposals. ... To overcome these deficiencies, initial review groups were established to assist the councils.” S. Rep. No. 381, 93d Cong., 1st Sess. 38 (1973). In 1968, when NIMH was established as a distinct part of HEW, this system was carried over with the creation of the NAMHC, and the Institute’s decision to create the IRGs. Hearings, supra note 4, at 3620-21. The NIMH dual review process remains, however, “less formal” than that of the NIH: “IRGs are established or phased out as required by the size and nature of the grant review workload. .” S.Rep. No. 381, supra, at 38. Ad hoc IRGs are formed to advise on particular applications “not within the competence” of any then-standing group. NIHM Handbook, supra note 2, at 9.

Under the prior decisions of this court, we think the IRGs are advisory committees, performing staff functions through the medium of outside consultancy, and are not agencies. The considerations raised in Soucie v. David, supra, and Grumman II, supra, point unmistakeably to this conclusion, which comports with our present impression of how this question should be handled. Soucie involved the status of the Office of Science and Technology, which, in addition to advising and assisting the President in coordinating federal policy for science and technology, was also authorized, as we emphasized, independently to evaluate federal programs. It was created by an executive reorganization plan submitted to Congress and “explicitly considered” by the House. Id. at 1074. Congress approved the plan with the understanding that it was “delegating [to OST] some of its own broad power of inquiry in order to improve the information on federal scientific programs available to the legislature.” Id. at 1075. It “clearly contemplated,” as did the Executive, “that the OST would function as a distinct entity and not merely as part of the President’s staff.” Finally, we noted that- since the OST had published FOIA regulations, it had apparently considered itself, prior to the litigation, to be an agency subject to the APA — a consideration of some weight. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). All of these factors taken together led to the determination that OST exercised “substantial independent authority,” and to the conclusion that it was an agency subject to the Freedom of Information Act.

Some of the same factors considered in Soucie were present in Grumman II, which dealt with the status of the Regional Boards established by the Renegotiation Board. The Regional Boards’ exercise of formal decision making power delegated from the National Board was found to be “within Congress’ [sic] contemplation when it established the Renegotiation Board apparatus.” Indeed, the statutory authorization there at issue was expressly that of delegating functions “to any agency of the Government, including any such agency established by the Board.” 50 U.S.C. App. § 1217(d) (emphases added). Further, the National Board had promulgated FOIA regulations for disclosure of some Regional Board documents, again indicating its own view, prior to litigation, that they were agencies subject to the FOIA. Furthermore, the Regional Boards fell squarely within the analytic definition supplied by Professor Freedman, whose consideration of this question is the fullest and most discerning, namely, they were the body in which “substantial ‘powers to act’ with respect to. individuals [were] vested.” Freedman, supra note 9, at 9. They had their own staffs to investigate and negotiate with contractors, and their “recommendation is communicated openly to the contractor prior to any assumption of jurisdiction by the National Board.” 482 F.2d at 715. They were, in short, the agency with which an affected member of the public dealt, and from whose decision appeal might lie, depending upon the amount in controversy.

The contrast between the agencies involved in Soucie and Grumman II, on the one hand, and the IRGs, on the other, could not be greater. Unlike the OST, the IRGs do confine themselves to making recommendations; authority to make grants is vested in the Secretary; and authority to recommend doing so lies with the NAMHC. The IRGs act as consultants to the NAMHC; their members are strictly forbidden from communicating their group’s recommendations to applicants. NIMH Handbook, supra note 2, at 30. Applicable regulations and administrative rules within NIMH and HEW have consistently reflected the view that the IRGs are not subject to the FOIA, see id.; 45 C.F.R. §§ 5.72(b), 5.73(a); and the authority under which they are appointed gives no hint of a congressional expectation that NAMHC’s delegation of the initial review function would somehow make either more or less information available to the legislature or the public.

Clearly, the work now done by IRGs could again be done by the NAMHC if it sat continuously instead of meeting three times a year for about two days each time. Employing consultants to improve the quality of the work that is done cannot elevate the consultants to the status of the agency for which they work unless they become the functional equivalent of the agency, making its decisions for it. There is no doubt in this instance that the usually perfunctory review the NAMHC gives to a particular application — as opposed to the group of which it is a part — makes the IRG’s recommendations an often crucial element in the approval process. But, just as the APA makes the fact that a government authority’s decisions are subject to review irrelevant in determining whether that authority is an agency, at least in this case the degree of scrutiny its decisions are given on review is equally beside the point.

The important consideration is whether it has any authority in law to make decisions. The IRGs have not; their favor is not necessary because the law empowers the Secretary to make grant awards if (and only if) the NAMHC so recommends. The fact that the NAHMC may be greatly influenced by the IRG’s expert view does not make the IRG an agency. See International Paper Co. v. FPC, 438 F.2d 1349, 1359 (2d Cir. 1971). In Soucie this court did not consider whether the President generally accepted the advice of OST. In that case and in Grumman II we looked to the functions that OST and the Regional Boards respectively were empowered by law to perform. The alternative would inevitably involve the courts in determining the care with which the decisional officers of government agencies supervise their staffs, in order to determine whether in fact the staff is not the stand-in for the officer or agency — its recommendations his decisions — and whether it ought not therefore in law to be held accountable as the agency. This we cannot do. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 999, 82 L.Ed. 1129 (1938); United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).

That is not to say that a staff recommendation may never achieve the dignity of an agency’s final decision; it may do so when the agency adopts it as its own, and at that point its disclosure can be required. American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1969), is a case in point. There the question was “whether an administrative agency [the Maritime Subsidy Board] may take affirmative action against a private party by means of a decision in which it states that the only basis for such action is a certain specified [staff] memorandum and then refuse to disclose the memorandum to the party affected by the action.” While the question was answered in the negative, the reason was that the agency had made the memorandum the express and only basis for its decision and not that it had made the staff into the “agency.” In the present case, however, leaving aside the problem of whether even the denial of a grant award is “affirmative action” against an applicant, the reasoning of the IRG is not the “only basis” for the Secretary’s decision. The Executive Secretary’s Note and the NAMHC’s policy choices, and in some instances the latter’s particularized scrutiny, intervene. Cf. Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698, 706 (1971). We hold, therefore, that the IRG is not itself an agency under the APA nor, consequently, subject to the strictures of the FOIA.

2. Application of Exemption 5.

Having decided that the IRG is not an agency, nor its Summary Statements and site visit reports the final decisions of an agency, it becomes necessary to determine just how much of the disputed information in these intraagency documents is exempt from disclosure. Exemption 5 applies only to matters “which would not be available by law to a party other than an agency in litigation with the agency.” While there are often problems in determining the precise scope of the exemption without the benefit of actual litigation the nature of which informs the breadth of discovery, see Environmental Protection Agency v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), its application in this case is relatively uncomplicated. As a general proposition Exemption 5 does not shield from disclosure “purely factual, investigative matters,” as opposed to “materials reflecting deliberative or policy-making processes.” Id. at 89, 93 S.Ct. at- 837. Even purely factual matter may be exempt, however, if it is inextricable without compromise of the deliberative process, id. at 91, 93 S.Ct. 827, and so too may be “a summary of factual material [that] is part of the deliberative process,” even though the facts themselves are elsewhere on the public record. Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 491 F.2d 63 (1974).

In order to apply these propositions to the facts at bar, the contents of the Summary Statements and site visit reports need further elaboration at this point. We take as our texts appellee's Exhibit 1, the NIMH Handbook, supra note 2, at 33-36, documents as illustrated by the sample submitted to the court. The Summary Statements begin with (1) a concise resume, “no more than six or seven sentences,” of the proposed project, its review by the IRG, and the reasons for the IRG’s recommendation, including the contrary reasons offered by a minority. There follows (2) a “brief description of the proposal,” its “aims, methodology, and, for renewal, supplemental and revised proposals, the background or history.” The next and “most critical” section is the IRG’s critique (3) which discusses “the strengths and weaknesses of various aspects of the proposal in detail.” The “background and competence” of the applicant and his associates (4) are discussed, as are (5) “any special aspects of the facilities and equipment and the extent of departmental and interdepartmental cooperation” at the applicant’s institution. The proposed project budget is then analyzed with reference to its adequacy, justification, and projected duration (6). Supplemental requests are related to previously approved amounts. To all of this may be appended (7) the Executive Secretary’s Note, described supra at p. 242, (8) the minority report of two or more dissenting members, and (9) a summary of any site visit report.

The site visit report itself contains, in addition to purely identifying material, such as application number, date, and persons seen, (10) evaluations of the proposal, the investigator, and his staff, (11) sections on the facilities and other support available at the institution and (12) the budget, and (13) “other comments.” Because of the substantial overlap necessary between the site visit report and Summary Statements, site visitors are advised to follow the format for the latter document “since the site visit report, if accepted by the [IRG], can serve as a basis for the Summary Statement.” NIMH Handbook, at 46.

From this mere recitation it is clear that most of the matters called for in the site visit report and Summary Statement for each application are evaluative, and call into play the policy of protecting the deliberative process, at which Exemption 5 is directed. See EPA v. Mink, supra, Soucie v. David, supra. Indeed, the only matters that are even arguably subject to compelled disclosure are the Summary Statements’ (2) description of the proposal, its aims and methodology, and any factual matter contained in (9) the summary of the site visit report. In the site visit report itself, only (11) the statement of facilities, and (12) the budget, merit comment.

Of these four items, the. two (2 and 9)' in the Summary Statement are abstracts of other information — either the site visit report or portions of the underlying application. As such' we think them covered by the reasoning of Montrose Chemical, supra. That case involved application of Exemption 5 to summaries, made by agency staff attorneys, of evidence developed at a public hearing. The summaries were prepared for and submitted to the Administrator of the Environmental Protection Agency “to assist [him] in his study of the record” on the basis of which he was obliged to make a decision. This court held the summaries exempt as an integral part of the deliberative process.' Sensitive to the necessity of attaching varying degrees of significance to different facts in the course of epitomizing the -record, we said:

Even if they cited portions of the evidence verbatim, the assistants were making an evaluation of the relative significance of the facts recited in the record; separating the perti-. nent from the impertinent is a judgmental process, sometimes of the highest order; no one can make a selection of evidence without exercising some kind of judgment, unless he is simply making a random selection. 491 F.2d at 68.

No significant difference distinguishes the present case from Montrose Chemical. The research design and description of methodology in the application submitted for in camera inspection covers fifteen, single-spaced typewritten pages; their description in the Summary Statement is one page in length. In the Montrose Chemical paradigm, the judgmental element arises through the necessity to select and emphasize certain facts at the expense of others. In the instant case, where the whole proposal must be described at least in general, various aspects of it are described in greater detail than others. In virtually every sentence the author must operate at a level of specificity that reflects his personal perspective on the material being summarized.

An example may be taken from the Summary Statement before us without compromising any information for which exemption is claimed. In the course of describing a proposal for evaluating the relative efficacy of a number of drugs in the treatment of hyperkinetic children, the following statement appears : “The assessment battery consists of a number of rating scales, and various cognitive and performance measures.” Significantly, however, while the various performance and' cognitive tests are then enumerated, the rating scales are neither identified nor described, but are said only to have proved sensitive in prior, unspecified studies. This difference of treatment may well reflect no more than the greater ease with which named tests can be referenced than rating scales described. It may, on the other hand, reflect the view that certain well-known tests have a definite reputation for reliability, and that rating scales are only so much surplus-age. A different group of reviewers with a different set of views might well have elaborated on the rating scales’ utility and never specified the cognitive and performances tests proposed. What the effect of such a choice might be on the proposal’s prospects we need not guess. The point is simply that choices are and must be made by someone or some group with a unique perspective, and decisions may be based on them. Accordingly, the two items under discussion must also be held- exempt from disclosure.

The NIMH Handbook alone does not indicate whether the two items in the site visit report — (11) the facilities and (12) budget references— are meant to be narrative or analytic. The representative site visit report submitted to the District Court, which is of controlling significance, suggests the latter, however, at least with respect to budgetary considerations. The short section on the budget relates the amount requested to the site visitors’ analysis of the amount needed, and suggests for IRG consideration a possible economizing step. As such, it is clearly a part of the deliberative process and exempt from compelled disclosure. But this particular report makes no reference to the matter of facilities, neither describing nor rendering an opinion on the adequacy of the facilities available to the grant applicant. The entire document, however, other than the opening paragraphs which describe the proposal and for which no claim of exemption is made, is an expression of the visitors’ opinions and not a recitation of facts. This suggests that facilities references, if any, in the site visit reports for other of the applications sought by appellee would be of the same nature. In light of the parties’ agreement, supra note 21, however, we need not choose between reliance on this speculation, with its potential effect of relieving the agency of its statutory burden of proof, and in camera inspection of all the site visit reports in suit. Finding no matter of the type sought in the controlling document, there is no relief respecting item (12) to which appellee can lay claim.

Ill

Appellant challenges the District Court’s jurisdiction to order the agency to amend its regulations to conform with the court’s opinion. The FOIA, it is contended, “grants jurisdiction to the district courts only to review agency denials of requests for specific documents and to enjoin withholding of those documents” from the person who made the request. That is of course true insofar as it goes, but is not responsive to whether the court may not draw on powers apart from, and unabridged by, the FOIA in order to give complete relief where it is due. “With the express vesting of equitable jurisdiction in the District Court by § 552(a), there is little to suggest, despite the Act’s primary purpose, that Congress sought to limit the inherent powers of an equity court.” Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (dictum).

One can imagine circumstances, such as where an agency simply refuses to conform its actions to the known requirements of the Act in order to deter requests for information by repetitive litigation, that would tempt a court to use any or all of “the usual weapons in the arsenal of equity,” Bannercraft Clothing Co. v. Renegotiation Board, 466 F.2d 345, 354 (1972), rev’d on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). In the case at bar, however, it is unnecessary to decide whether the District Court would be so empowered.

Appellee initiated the process culminating in this action by a letter requesting access to documents relating to eleven specifically identified research grants. When the request had been denied in part and administrative appeal exhausted, appellee filed a complaint the prayer of which requested that the court declare the plaintiff’s right to disclosure of the disputed records and order their disclosure, and “[t]hat this Court declare invalid under the Freedom of Information Act the regulations issued by [HEW] which exempt from public disclosure all research protocols and all proposed grant applications.” JA6. In its opinion the District Court merely suggested that “[a]t a minimum, the defendants should promptly modify existing regulations and grant application instructions to bring them into conformity with the decision of this Court,” but its order elevated this suggestion into an injunctive obligation presumably enforceable in the same manner as any injunction, namely, by contempt.

The FOIA requires each agency to make information, not exempt by the terms of the Act, available “in accordance with published rules.” From this may readily be inferred an obligation to publish rules that accurately reflect the agency’s substantive obligations under the Act, and rules that fail to do so are of no force when “any person” seeks access to information not exempt from disclosure under the Act. Pretermitting the very real question of whether a single request for documents creates a continuing case or controversy sufficient to support an order to amend regulations of only speculative future effect on an FOIA plaintiff, there is no warrant in the record of this case for anticipating that HEW would not proceed in good faith to incorporate the substance of a final court decision into its rules and practices.

The District Court was sensitive to the public interest that the FOIA, “to the extent practical, be self-operative to insure prompt disclosure.” It was equally aware of the necessity “that grant applicants be placed on notice that information submitted pursuant to an application for NIMH grant funds” is subject to public disclosure. We, of course, share the court’s concern,. but are without sufficient reason to doubt that appellant does also. Considerations of inter-branch comity impel us to withhold coercive orders that are not demonstrably necessary. Cf. Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700, 712 (1973).

What we have held hereinabove is that the eleven initial grant applications involved in this case (all of which had been approved by HEW), together with any continuation, renewal, or supplemental applications incident thereto (either approved or pending), are not exempt from disclosure under the Freedom of Information Act. Contrarily, we have held that site visit reports and Summary Statements are exempt under Exemption 5. The impact of this latter holding is limited in this case by the fact that HEW has voluntarily disclosed the purely factual matter contained therein, in an apparent recognition that such matters do not come within the purposes of the exemption. Lastly, we have found, in the circumstances of this record, an inappropriate exercise of equity jurisdiction in the District Court’s injunctive command that HEW conform its regula-, tions to the court’s mandate.

The judgment of the District Court is, accordingly, affirmed in part and reversed in part; and the case is remanded for the entry of a decree consistent herewith.

It is so ordered.

      . We consider that continuation, renewal, and supplemental applications are all incident to the initial applications; and we see no reason to distinguish between them for purposes of their availability for disclosure under FOIA.

      . Tlie District Court stated that “the Council members do not receive individual grant applications. Their decision is based solely on the review group Summary Statements.” 366 F.Supp. at 934. The N1MII Handbook for Initial Review Staff states, however, that the NAMTIO “reviews each application and its accompanying Summary Statement.” P. 38. This publication was in the record before the District Court as Plaintiff’s Exhibit No. 1. The only contradictory indication seems to be a statement in the deposition of Dr. R. S. Lipman, Chief of the Clinical Studies Section, Psychopharmacology Research Branch, NIMH. I)r. Bipman was Acting Executive Secretary at the time of his deposition,' and was familiar with the operation of the IRGs but not witli that of the NAMHC. When asked whether the latter group acted solely with the Summary Statements before it, he replied (p. 102) :
      A. I believe, and I am really talking off the top of my head, I believe they have all of the pink sheets and then they can have made' available to them any particular grant [application] that they have a particular question about.
      The best evidence of what the practice is would appear to be the official publication on which both parties have relied extensively and the accuracy of which neither has questioned in any particular.

      . Instances are related in House Comm, on Government Operations, The Administration of Research Grants in the Public Health Service, H.Rep.No.800, 90th Cong., 1st Sess. 62 (1967).

      . The District Court stated that “[gjeneral priorities for funding are determined by the Director of NIMH, with the advice of the [NAMI-IC],” and no further elaboration is possible on the basis of this record. Bee Def.Exh. No. 2, U. S. Government Information Policies and Practices — Public Access to Information from Executive Branch Advisory Groups, Hearings Before a Subcomm. of the House Comm, on Government Operations, 92d Cong, 2d Sess., pt. 9, at 3619 (1972) (Statement of Dr. John F. Sherman, Deputy Dir., NIII). The finding that “[wjithin these general priorities [approval] is in the order of numerical priority set by the [IRG]” is very likely correct, however, since often nobody other than the IRG. will examine the scientific merit of a particular application.

      . The purely factual information in these documents had been released by NIMII voluntarily.

      . Public Health Service regulations provide that “falny corporation, institution, agency or other such person, other than an individual, that is organized or operated for profit” is ineligible to receive a grant award. 42 O.F.Il. § 52.11(a)(2). Only an individual grantee engaged in profit-oriented research, or a non-profit organization that engages in profit-making ventures based on biomedical research, could conceivably be shown to have a commercial or trade interest in his research design. For the eleven grantees whose protocols are sought in this case, however, their institutional affiliations with colleges and universities (7), research institutes (2), hospitals and state agencies (1 each), make this possibility extremely remote. In addition it is established by an un-denied allegation in the complaint that “[n]one of the grants is concerned with the production or marketing of the drugs being tested.” K 9, JA 5. This does not absolutely preclude the j)ossibility of commercial activity, but in any event, the burden of showing the trade or commercial character of the research design information was on the agency, and since it did not introduce a single fact relating to the commercial character of any specific research project, it can hardly have carried its burden on this point.

      . See note 6, supra.

      . See Restatement of Torts § 757, Comment b (1939) : “Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” (Emphasis added.)

      . See Final Report of the Attorney General’s Comm, on Administrative Procedure, S.Doc. No. 8, 77th Cong., 1st Sess. 7 (1941) (“the power to determine, either by rule or by decision, private rights and obligations”) ; 1 K. Davis, Administrative Law Treatise § 1.01, at 1 (1958) (“a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule-making”) ; Freedman, Administrative Procedure and the Control of Foreign Direct Investment, 119 U.Pa.L.Rev. 1, 9-10 (1970) : “Where a center of gravity lies, where substantial ‘powers to act’ with respect to individuals are vested, there is an administrative agency for purposes of the APA. . . . [But] a definition stated thus broadly is not self-applying. It is an abstract proposition that does not neatly decide concrete cases.”

      . This system originated with the National Cancer Institute Act, which created, in addition to the Institute, the National Cancer Advisory Council. Ch. 565, § 3, 50 Stat. 560 (1937).

      . As added, Pub.L. No. 87-838, 76 Stat. 1073; see Public Health Service Act § 301, ch. 373, § 301, 58 Stat. 691 (1944). '

      . “If the OST’s sole function were to advise and assist the President, that might be taken as an indication tbat the OST is part of the President’s staff and not a separate agency. In addition to that function, however, OST inherited from the National Science Foundation the function of evaluating federal programs. . . . By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act.” 448 F.2d at 1075.

      . The executive branch represented the proposed OST as being organizationally analogous to the Bureau of the Budget, the Council of Economic Advisors, the National1 Security Council and the Office of Emergency Planning. 448 E.2d at 1075 & n. 22. Congress contemplated that OST would be sufficiently distinct from the President’s staff to be beyond the reach of executive privilege and thus responsible to Congress.

      . The result may be that there is no “final opinion” of the agency — NIMII—accompany-ing its decision on whether to make a grant award. Whether this comports with existing notions of administrative fairness is not an issue in this case, nor do we see how it could be an issue for the courts in the absence of a legislative provision for judicial review of the decision.

      . The rather sparse legislative history of Section 2 of the APA is collected in Freedman, supra note 9, at 6-12, and analyzed witli reference to the meaning of “agency.” That history tends to confirm our view that IRGa are not- agencies. Staff of Senate Comm, on the Judiciary, Report on the Admin.Proc.Act, 79th Cong., 1st Sess. 13 (Comm.Print 1945) : “ ‘Authority’ means any officer or board, whether within another agency or not, which by law has authority to take final and binding action with or without appeal to some superior administrative authority.” See H.Rep.No. 1980, 79th Cong., 2d Sess. 19 (1946). See also Attorney General’s Manual on the Administrative Procedure Act 9 (1947).
      Whether the IRG is subject to the disclosure requirements of the Federal Advisory Committee Act, 5 U.S.O. App. I, § 10, is not a question before this court. We note, however, that that Act makes the FOIA standards applicable to advisory committees’ reports and other papers only insofar as the head of the agency to which the committee reports fails to determine in writing that the reports or documents contain information within an exemption to the FOIA. Id. § 10(d). Whether such a determination has been made respecting IRG reports is not disclosed by the record in this case. But see Summary Statement, Dept, of HEW (Notice of determination to close certain meetings under authority of Executive Oi’der 11671 of June 5, 1972), in U. S. Government Information Policies and Practices, supra note 4, at 3638, which made the same determination under the pre-Committee Act regime established by executive order. Similarly, the court is not now called upon to decide whether failure to make such a determination subjects the affected information to disclosure at the instance of “any person” as under the FOIA.

      . From the Summary Statement submitted for in camera inspection it appears that exemption is claimed for the resume of the IRG’s review and reasons, but not for the resume of the project itself, which gives only the most general indication of its subject matter and cannot be regarded as anything but purely factual and nonexempt.

      . The critique is specifically directed to the following issues:
      Are the aims logical? Is the approach valid and adequate? Are the procedures feasible? Is the research likely to produce new data and concepts or confirm existing hypotheses? What is the significance and pertinence of the proposed work with regard to the state of the field and importance of the aims? For continuation and supplemental requests, comment on past progress.

      . Wl.cn tlie IRG is an ad hoc committee, the names and institutional affiliations of each reviewer are listed. Five additional criteria are to be addressed in the case of foreign applications.

      . The site visit report, which is two and one-half pages in length, is not summarized but rather incorporated by reference. Were it summarized the principle discussed in the text would apply equally to that summary.

      . As in Montrose Chemical, the court does not confront a situation in which the underlying information, a summary of which is determined to be exempt, is itself secreted from public inspection, and in which we said “a different result might be reached.” The proposals summarized in item (2) are available by virtue of our holding in Part II.A, supra. The site visit reports summarized in item (9), insofar as purely factual, were not even claimed to be exemjrt, although, as appellant points out, they have very little factual content.

      . The parties “agreed that the determinations made by the Court based on this example would control the disposition as to other similar material covered by plaintiff’s request and presently withheld.” 366 F.Supp. at 932.

      . The proposal in question did not require the use of technical medical equipment, which undoubtedly made the question of facilities irrelevant to the IR-Cl’s evaluation of the application.

      . The District Court rejected appellant’s argument that Exemption 6, which applies to certain files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, is an alternative ground for non-disclosure of any references, in the Summary Statements and site visit reports, to the professional qualifications or competence of a particular researcher. Our holding that the non-faetual information in these documents falls within Exemption 5 extends to tl'.ese expressions of opinion, and we therefore need not reach the merits of this argument.
      Neither do we need to deal with the District Court’s intimation that under certain circumstances HEW may delete from the site visit report or the Summary Statement an expression of opinion adverse to the qualifications or competence of particular individuals involved in the research project under consideration. The District Court, of course, found that these documents constituted the opinions of an agency and were disclosable as such; and it then referred to a provision of FOIA which says that an agency may make such deletions in an opinion. 5 U.S.C. § 552(a)(3). We, of course, have reached a different conclusion on this latter score, and under our approach the deletion authority contained in the statute is not applicable.

      . The District Court itself prefaced its consideration of this prospective relief with the words, “Apart from resolution of the instant controversy ...”