I dissent and vote to reverse the order enjoining the Attorney-General from proceeding pursuant to the subpoena duces tecum herein.
While the majority does not reach the question of the right of a witness to counsel in this investigatory proceeding, it seems to indicate that if it had reached it the case of Matter of Groban (352 U. S. 330) would control. I agree and consequently we may not hold that there is a right to counsel in this proceeding.
*478However, the majority holds that the Attorney-General, having elected to allow counsel, thereby conferred upon the witness a right to counsel and that such right may not be circumscribed. I do not agree. The word “ right ” should not be confused with the word “privilege” or “permission”. My difference with the majority view stems from my conclusion that, since the Attorney-General could have completely excluded counsel, the witness is not aggrieved by a determination to grant it a limited privilege of representation. It does not follow that merely because the Attorney-General was willing to permit the witness to appear by 'counsel, he thereby conferred upon the witness a “ right ” to counsel in the classic and fullest constitutional sense of the word. At best he confers a-privilege upon the witness.
It is also asserted that since the practice of the Attorney-General has been to permit counsel to appear at proceedings of this type it would be improper to impose restrictions in this particular instance absent strong evidence that the continuance of such practice would impede or hinder the investigation.2 I do not believe that the Attorney-General must show with specification how such impediment or hindrance will be occasioned. That is a judgment he himself must make in the light of all the circumstances and absent a clear showing of arbitrariness his conclusion in that regard should remain undisturbed. Absent an absolute right to counsel, the courts should not and may not broaden the privilege granted by the Attorney-General. The Attorney-General is responsible for this investigation and not the courts. In any event, the courts should refrain from intervention in a case such as this where it appears that the Attorney-General’s determination is bona fide and not an unreasonable one.
Nor do I believe that simply because the Attorney-General permitted this attorney to appear on three prior occasions a continuance of that privilege is mandated. It may very well be that the Attorney-General has now concluded that an additional appearance, in the light of what has gone before, would be detrimental to the investigation. This is an area in which the Attorney-General’s judgment should be accepted.
In any event even were I able to adopt the view of the majority of this court I would nonetheless adhere to my determination that the order should be reversed because I believe the witness *479would not be adversely affected by a refusal to permit counsel. The subpoena duces tecum here involved called only for the production of books and records. Such books and records could have been produced at the hearing by anyone in the petitioner’s employ so long as such person could identify them. If it were felt that any of the books or records — and that is the only thing with which we are here concerned—were immune from the Attorney-General’s scrutiny for any reason, counsel, in advance, could have directed the company to withhold them and the propriety of the subpoena with respect to those items could have been tested in a proceeding initiated for that purpose. Thus the witness could have adequate protection Avithout the necessity for its counsel to be present at the hearing.
Breitel, J. P., Valente and Stevens, JJ., concur in Per Curiam opinion; Rabin, J., dissents in opinion in which Staley, J., concurs.
Order entered on December 17, 1964 affirmed, without costs and without disbursements.
. It is to be noted that if the witness in fact had the constitutional “ right ” to counsel such “right” could not be limited iby the Attorney-General and it would appear to be of no consequence whether or not the .presence of particular counsel impeded or hindered the investigation.