(dissenting) :
With all respect, I must record my disagreement with the ruling of the majority that the President had the authority to negotiate detailed arrangements with foreign steel producers to limit their shipments of products to the United States.
In my view, this case is controlled by Congress’s exercise of its plenary authority over the regulation of foreign commerce through passage, over the past forty years, of legislation establishing a comprehensive scheme occupying the field of import restraints. While there is room for a role based on inherent authority of the executive, in this case the actions taken by the President are inconsistent, by fair implication, with the scheme Congress has provided. My point * is not that the President has taken the kind of action that Congress had forbidden to the Executive. On the contrary, the statutes passed by Congress established a broad executive discretion, and with a subject like steel imports and the kind of expansive scope of the “national security” provision (which emerged in the 1950’s and now appears in § 232 of the Trade Expansion Act of 1962) that permits a restriction of imports which threaten to impair the national security by weakening the internal economy, there is a likelihood that the President would have been able to make the findings required by that law. But Congress has made the exercise of executive authority over import restraints dependent on public ventilation of the issues and has prescribed a procedure with safeguards and right of comment by affected interests. The President has concededly not followed that procedure, and this course cannot stand consistently with the statutory pattern.
Recent events, notably those affecting currency exchange rates and prices and supplies of fuels, have dramatically changed the economic climate that sparked these trade arrangements. While the particular issue may be less pressing, there has been no dilution of the principle that the Executive cannot circumvent procedures delineated by Congress. That principle is paramount even though it may sometimes lead judges to particular results that are dubious pragmatically. Compare Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842 (1973); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972).
I am not persuaded by the majority’s pronouncement that the statutes are not pertinent to the present case because the arrangements, incorporated in letters from foreign steel producers which describe themselves as “voluntary restraint undertakings,” did not contemplate the mandate of judicial enforceability. These undertakings by the President and foreign steel producers were carefully structured in considerable detail, obviously after detailed consultation with American steel interests, without exposure to the kind of input by purchasers that would have been provided if the Congressional procedures had been followed. These undertakings are bilateral, and establish obligations. Their bite persists notwithstanding the majority’s effort to coat them bland vanilla. The majority tolerates executive detours around the limits staked by Congress in the field it has occupied. Its concept that a different route is available for executive arrangements discerned as not intended for judicial enforcement is, in my view, unsound.
I. THE 1972 LETTERS
The subject of this litigation is, specifically, the arrangements made in 1972 between the Executive and foreign steel producers. In early 1970, various steel industry and labor union representatives, still concerned about the effect of dramatically increased steel imports on domestic industry, urged the State Department to seek an extension of commitments that had been made for the years 1968 to 1971. Following a study by a special committee, the President, in December 1970, directed the Department of State to seek new pledges from the foreign *86producers. The State Department, according to the affidavit of a cognizant official, “met with various domestic interests,” and “received information and advice from diverse elements of the steel industry.” The affidavit goes on to say: “The arrangements ‘were entirely the result of negotiations between the foreign producer representatives and State Department officials who . . . spoke for and represented the policy judgments of the United States Government alone.” 1
The 1972 arrangements were embodied in separate letters to the Secretary of State — from the Japan Iron and Steel Exporters’ Association, and from the steel producers of the European Economic Community, including the United Kingdom. The letters were released by the White House on May 6, 1972, along with a Statement by the President and a Fact Sheet. President Nixon characterized this “welcome development” as the product of more than a year’s effort by Deputy Under Secretary of State for Economic Affairs Nathaniel Samuels. The President’s Statement announced that under the 1972 arrangements the foreign steel producers “pledge a three-year restraint” on steel exports to the United States, and further stated that this undertaking “represents a substantial improvement” over prior arrangements.
The arrangements set limitations on total amounts of steel mill products to be shipped to the United States in 1972— 6.498 million short tons from Japan, and 8,013,794 short tons from the United Kingdom and European Community; and a limit of 2.5% of growth increase in each of the following two years. There were also more specific and detailed arrangements, summarized as follows in the White House Fact Sheet:
“The provisions of the renewed undertakings also include a firmer understanding on product mix and geographic distribution, with specific tonnage limitations on each of the three categories of specialty steel — stainless, tool and other alloys.”
Thus the limit on shipments of stainless steel mill products in 1972 was set at 16,873 metric tons for the steel producers of U.K. and EEC, and at 72,463 metric tons for the steel producers of Japan.
Each of the letters contained a paragraph on “Consultations” — which recorded the understanding that the producer associations “hold themselves ready to consult with representatives of the United States Government . [and] expect that, similarly, the United States Government would be prepared to consult with their representatives on any problem or question that may arise with respect* to this voluntary restraint undertaking.” 2
*87Each letter stated that its “voluntary restraint undertaking is based upon the following assumptions” — (a) that the disadvantages imposed by the arrangements should be equalized for importing producers, (b) that the United States Government will take no unilateral action to restrict the quantity of steel imports, or to raise tariffs, or to impose supplemental duties on import of steel, and (c) that the undertaking is not in violation of “any law of the United States or international rule.”
It is undisputed that the President, in negotiating these steel import limitations, did not act pursuant to any authority delegated by Congress. The State Department affidavit tendered by the defendants sets forth that Executive action under existing statutory authority was pondered and rejected.3 Presidential imposition of import quotas is authorized under the “escape clause” provisions of Title III of the Trade Expansion Act of 1962, 19 U.S.C. § 1901, but only on a finding of injury caused in major part by “concessions” granted under trade agreements; and the difficulties of the domestic steel industry were ascribed to excess capacity, superior technology, and a cheaper supply of labor available to foreign producers, rather than to concessions.
Under § 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862, the President has authority to limit imports to protect the national security, but this authority was also eschewed, for the reason that national security was only one of several factors pointing toward import restrictions.
II. THESE ARRANGEMENTS ARE IN SUBSTANCE INTERNATIONAL AGREEMENTS NEGOTIATED BY THE PRESIDENT THAT EMBODY OBLIGATIONS AND MUST COMPLY WITH THE PROCEDURAL SAFEGUARDS PRESCRIBED BY CONGRESS AS A CONDITION OF EXECUTIVE RESTRAINTS ON IMPORTS
The contention, accepted by the majority, that the President’s action is valid, notwithstanding its lack of statutory authorization, is based on two propositions: (1) the action is within the President’s independent “foreign affairs” power; and (2) the import restraint achieved as a result of the President’s action is not pre-empted by the Congressional regulatory structure.
Though there is no specific Constitutional clause granting the President power to conduct foreign affairs, that power has long been recognized. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed.2d 255 (1936). The President’s role in shaping foreign policy is rooted in and enhanced by his ability to communicate with foreign governments in the conduct of diplomacy. See L. Henkin, Foreign Affairs and the Constitution 47 (1972). Presumably, diplomacy ordinarily comprehends negotiation with officials of foreign governments, rather than direct negotiations with foreign firms as here, but I hesitate to suggest that this constitutes an absolute limitation on the President’s authority. What has been called the “foreign relations ‘apparatus,’ ” Henkin, supra, at 46, gathers a variety of commercial information in foreign countries, and this function inevitably involves contact with foreign firms, whether or not their governments are a conduit for communication.
However, to say that executive communications with a foreign national are within the President’s foreign affairs role only opens the door to analysis. Here the purpose of the communication was to manage commerce between the *88United States and the foreign producers involved — a matter over which Congress has plenary power conferred by Article I, § 8. While it would be too narrow a view of the executive function to say that foreign commercial relations are not a proper subject of executive communications with foreign entities, the executive cannot, through its communications, manage foreign commerce in a manner lying outside a comprehensive, regulatory scheme Congress has enacted pursuant to its Article I, § 8 power. As Mr. Justice Jackson said in speaking of shared Congressional and executive powers:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (concurring opinion).
The proper inquiry, then, is whether the executive action in obtaining the agreements for steel import restrictions comports with the Congressional program for foreign trade, or whether Congress, by occupation of the field of foreign import restraints, has precluded the President’s taking action on an independent basis without complying with the standards and procedures provided by Congress as a condition of executive effectuation of import restraints.
The majority says that the steel import restraints are in harmony with the statutory program because they are not enforceable in courts of law; they are said to be mere precatory expressions which Congress never intended to circumscribe by the procedural requirements applicable to mandatory import controls.
This response presents an issue that focuses on the nature and effect of the undertakings before us. Turning first to effect, Presidents may engage in many activities that have a perceivable economic impact upon the volume of commodities imported. The effects vary in terms of their stability, their specificity, and their duration. At one pole would lie general Presidential exhortations — say, to consumers to “Buy American” — or general alarms, announcing that protective legislation will be sought if imports are not contained. Such appeals are valid even though they may have the effect of inhibiting some market behavior, and no one would view them as prohibited by even the strongest Congressional “free trade” legislation. At the other extreme is a Presidential proclamation that foreign-trade commodities will not be allowed to enter, which plainly cannot be reconciled with the existing statutory structure, or legitimated by reference to some aura of “inherent” Presidential authority. In between is a continuum of restrictions. In my view, the comprehensive statutory program constrains some but not all of the activities in this continuum. Here, the undertakings have an economic effect that parallels that of import quotas proclaimed by the President.
Turning to its nature, the Presidential action here goes far beyond a speech or announcement — even one preceded by “feelers” to foreign governments to ascertain how much they will tolerate. Far from being mere expressions of desire and intent, these are solemn negotiated bilateral understandings.
The arrangements are not unilateral announcements but the culmination of bilateral discussions that were not only participated in, but initiated by State Department officials. Although the final letters that embody the specific limitations are astutely couched in a litany of a “voluntary restraint undertaking” on the part of the foreign steel producers, the circumstances are instinct with bilateral undertaking.
Obviously, foreign firms that have vigorously marketed their products in the United States do not voluntarily withhold production without some reciprocal aspect indicating that forbearance *89is to their advantage. Here, the undertakings of the foreign producers rest on Government assurances that disadvantages would be equalized among producers ; that the United States Government — or at least the not uninfluential Executive Branch — would not take or start other measures to limit steel imports or increase duties; and that the transaction would not violate any law of the United States.4
The specificity of the limitations imposed by the undertakings5 also indicates that they were the result of bilateral bargaining and agreement.
Significantly, by the terms of the arrangements, the parties contemplate continuing consultations. The foreign steel producers “hold themselves ready to consult” on any question that may arise on the interpretation of their “undertaking.” Does one accompany a unilateral declaration of intent with an offer to “consult” about what he has declared? When the foreign producers go on to say that their undertakings are based on their expectation that the United States Government will consult with them on questions that arise, and the White House releases these letters, along with a detailed Fact Sheet, as a “welcome development” that is the product of Executive negotiation can it be meaningfully denied that there is a reciprocal undertaking by the United States Government to engage in consultations with the producers?
The inference of bilateral undertaking is strengthened when the arrangement is placed in the context of historical practice. Export forbearance by foreign producers has historically been obtained by diplomatic exchange of notes between the United States and foreign governments! The diplomatic notes themselves have referred to an “agreement” or “gentlemen’s agreement” to limit shipments.6
International agreements are not limited to those embodied in formal documents, authenticated with ceremony, but include, as here, the specifying of an arrangement, together with mutual assurances and understandings as to how all parties will behave in response. To cast the steel restraints as unilateral undertakings rather than as agreements is to exalt form over substance.
The majority asserts that, unlike agreements negotiated pursuant to statute, which may be enforced by executive regulations and ultimately by judicial sanctions, the steel arrangements are unenforceable. But it is by no means clear that the Executive is without sanctions if the producers fail to abide by the arrangements. The very specificity of the limitations described by the letters makes violations easy to detect and the arrangements easy to enforce. That the threat of sanctions may carry considerable weight is indicated by the cooperation of the Japanese producers in making compensatory adjustments when they exceeded the quota for 1969 established by the original agreement. The remedy was a reduction of the 1970 quota by the amount of the overshipment. See Fifteenth Annual Report of the President of the United States on the Trade Agreements Program 28 (1970). Similarly, when the Japanese producers exceeded their aggregate quotas for 1972, “consultations” resulted in an agreement by the Japanese producers to charge the 1972 overshipments against 1973 quotas. See Seventeenth Annual Report of the President of the United States on the Trade Agreements Program 44 (1972).
If, as the Government argues, the President has inherent power to negotiate these and similar restraints, I fail to see why the courts would or should refrain from enforcement if sought. Products shipped to the United States in excess of the restraints might be denied *90entry, or domestic firms might be enjoined from handling them.
The common law of international agreements respects voluntary undertakings even in the absence of the “consideration” that is required under historic Anglo-American common law for domestic agreements to be enforceable in most state courts. If there must be a diplomatic peppercorn, there is consideration in the fact that the undertakings by the producers were plainly not meant to be revocable at will, and were based on a United States Government undertaking for consultation in the event problems arose and for avoidance of unilateral action against imports and tariffs. As I earlier indicated, this undertaking was binding on the Government which released and thus acknowledged this aspect of the letter arrangements. Further, principles of promissory estoppel may bind the foreign parties, even in the absence of a finding of initial consideration, once the Executive has relied on their representation that they intend to abandon any right they may have had to exceed the stated limitations on imports — as it has relied here by failing to take other steps to limit imports. See Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618 (1879); Casey v. Galli, 94 U.S. 673, 680, 24 L.Ed. 168 (1876); Goodman v. Dicker, 83 U.S.App.D.C. 353, 354, 169 F.2d 684, 685 (1948).
Even if judicial enforcement was not contemplated by the parties, the arrangements still embody a restraint. Trade agreements between foreign nations, and indeed many international agreements, may be “enforceable” only in the sense that they depend for enforcement on “good faith” performance by the parties. That does not make them any the less solemn agreements, that are both intended to affect the conduct of the parties and likely to have that result.
Moreover, the Executive may call on non-judicial resources if foreign producers violate the arrangements. Actions that would ordinarily be resisted as inconsistent with amicable relations, possibly a call to reduce assistance programs to the country in question, could hardly be assailed in the face of foreign producer bad faith.
A deliberate breach may well have an outcome intermediate between direct judicial enforcement and complete non-involvement on the part of the judiciary. Suppose the President directed customs officials to deny entry to United States ports of commodities violating the undertaking, and suppose such actions were sought to be enjoined. It seems to me entirely likely that the parties might have contemplated both this executive action, and the judicial consequence — on the assumption that the negotiations were valid — that the courts had no basis for holding the executive action invalid.7
What is the significance of the reiteration that these undertakings were “voluntary” on the part of the foreign producers? It is commonplace for a businessman to decide “voluntarily” that he will enter into an agreement, although the agreement, once entered into, has binding effect. The mandate may issue from a court of law or arbitration. But the obligations enforced in a court of commercial good faith and good will are as rigorous and insistent as a black-robed judgment. Congress has expressly authorized negotiated limitations in the orderly marketing agreement provision, § 352 of the Trade Expansion Act of 1962.8 And the national security provision authorizes restrictions imposed by Presidential proclamation, which embraces the authority to arrange restraints to which foreign producers consent.9
In my view, the steel quotas before us present an import restraint having a composite characteristic, in terms of ef*91feet and nature, as to be subject to the procedures and requirements set forth in the Trade Expansion Act of 1962.
This is the critical question in the case — where to draw the line. There is a continuum of restraints, as noted above. In my view, the critical distinction is between executive actions that rest wholly in the domain of appeals and exhortations, and executive actions that culminate in obligations. A good faith agreement with the kind of specificity present here puts an obligation on the foreign producer, in any realistic assessment. Accordingly, I think the executive negotiation and acceptance of these undertakings are activity in a field that has been preempted by Congress, and can only be engaged in by following the procedures set forth in the Congressional enactments.
There is only local color, no legal significance, in the fact that in this case the Chairmen of key House and Senate Committees concerned with regulation of international trade voiced their approval on the occasion of the White House announcement of the undertakings. The Government does not contend, and I do not see how it could rightfully contend, that such participation by particular Congressmen can invest the President with executive authority not otherwise possessed, or constitute a legally decisive definition of the demarcation between the zone that belongs to Congress as a whole and that which belong solely to the President.
I am unimpressed with defendants’ citation of statements from the legislative history of various trade provisions 10 as indicating a legislative intent that agreements could be reached without prescribed procedures.
If the entire legislative history is appraised, weight must be given to the two occasions — in the passage of the 1962 law, and again in 1971 — when Congress has declined to give the President authorization to impose import restraints without observing procedural requirements.11 However, the legislative his*92tory, as conventionally ascertained, does not give an independent view of Congressional intent, and this must be discerned from basic analysis of the statutes passed by Congress. The deep-seated and comprehensive Congressional insistence on procedural safeguards can best be appreciated in the light of pertinent history.
III. COMPREHENSIVE ENACTMENTS OCCUPYING THE FIELD OF PRESIDENTIAL ACTIONS RESULTING IN OBLIGATORY IMPORTS RESTRAINTS
The ascertainment of pertinent legislative intent depends not only on express wording of the Trade Expansion Act of 1962, and specific notations in its immediate legislative history, but on its character as a culmination of comprehensive enactments on the subject of executive actions resulting in obligatory foreign trade restraints, including agreements by the executive regarding imports. The Congressional pattern makes clear that such executive action is tolerated only if it is accompanied and safeguarded by procedural protections that ensure a right of comment by those whose interests may be affected. This not only avoids the vice of complete secrecy within the Government, it also avoids the vice of cozy confidentiality, in which the public is informed only when the matter is a fait accompli.
1. General legislation on tariffs and trade agreements
A. The Tariff Act of 1930, 46 Stat. 590, enacted a comprehensive schedule of duties. It gave the President the power to adjust duties to equalize differences in costs of production between domestic and foreign firms — but only after a Tariff Commission investigation and recommendation.12 This indicates the Congressional practice of regarding the regulation of trade as its own province. Certain authority was passed to the President, but this was limited both in scope and procedurally. Certain factual findings must be made by an independent body before the Executive can act, even when its goal is the protection of domestic industry.
B. The 1934 amendments to the Tariff Act of 1930, 48 Stat. 943, delegated to the President a then-unprecedented authority to reduce tariff barriers through trade agreements with foreign governments “whenever he finds as a fact that any existing duties or import restrictions of the United States or any foreign country are undiily burdening and restricting the foreign trade of the United States.” This authority was renewed some nine times and then set forth in the Trade Expansion Act of 1962.13 It represents Congress’s understanding that the Executive’s power in regard to the negotiation of trade agreements derives from statutory authorization by Congress.
In drafting the 1962 Act Congress undertook a comprehensive review of the international trade program. Section 201(a)14 authorized the President to enter into trade agreements with foreign countries and gave him not only the power to adjust tariffs, within the limits established by § 201(b), but also the power to modify existing or impose additional non-tariff import restrictions, including quotas.15 However, before entering into negotiations the President was required to publish a list of commodities which would be the subject of the proposed agreement.16 On the basis of this list, the Tariff Commission was to conduct an investigation, including the holding of public hearings, and to *93advise the President of the “probable economic effect of modifications.”17 The President was also to seek advice from other executive departments.18 Finally, the President was obliged to “afford an opportunity for any interested person to present his views” by designating, if necessary, an additional agency or an intra-agency committee to hold public hearings.19
The President’s general authority to enter into new trade agreements under § 201 of the Trade Expansion Act expired in July, 1967, and has not been renewed. What has survived is the statute’s pattern, that is, a legislative recognition of the need for specified regulatory capability in the President, coupled with procedural requirements of investigations and hearings.
2. Specific import restrictions
Congress has itself established specific restrictions on the import of certain commodities.20
It has also delegated to the President discretionary authority to impose import restrictions on agricultural commodities21 — -but only after notification by the Secretary of Agriculture that articles are being or are practically certain of being imported in such quantities as to “render ineffective, or materially interfere with” agricultural price support programs, and only after a Tariff Commission investigation that includes hearings.
Section 204 of the Agricultural Act of 1956, 7 U.S.C. § 1854, authorizes the President to negotiate agreements restricting the import of agricultural goods and textiles. Unlike prior authorizations of Presidential action, this section requires no procedures to be followed in its exercise. However, this feature, of lack of required procedures, is a signal departure from the pattern of trade legislation, as has been remarked by members of Congress and commentators,22 and is limited to certain commodities.
3. General import restrictions
Congress has passed not only legislation for specific commodities, but also general provisions available to the President in accomplishing restrictions on the import of any commodity. These provisions, however, retain procedural safeguards to ensure against Executive finalization of restraints in secrecy.
a. Bp proclamation under the escape clause.
Without reviewing in detail the origin of the escape clause in the 1934 legislation and the provision of requisite procedures in § 7 of the Trade Agreements Extension Act of 1951, 65 Stat. 72, it is instructive to examine the structure of § 301 of the Trade Expansion Act of 1962, 19 U.S.C. § 1901, which is the current embodiment of this clause. Section 301(b) provides that the Tariff Commission, in certain circumstances, is to conduct an investigation to determine whether there exists or is threatened, “serious injury” to domestic industry caused “in major part” by trade agreement concessions. Section 301(e) provides that the Commission, if it makes such a determination, shall recommend a tariff increae or other import restriction “which is necessary to prevent or remedy such injury.” The President may by proclamation increase or impose import restrictions under this *94clause, but only after he receives an “affirmative finding” by the Commission. Section 351(a) of the Trade Expansion Act of 1962, 19 U.S.C. § 1981 (a).
b. Orderly marketing agreements.
Of particular pertinence is the alternative provision in § 352 of the Trade Expansion Act.23 It provides that the President — -after receiving the Tariff Commission’s affirmative finding under § 301(b), and in lieu of issuing a proclamation imposing duty or other import restriction under § 351 — may “negotiate international agreements with foreign countries limiting the export from such countries and the import into the United States of the article causing or threatening to cause serious injury to [a domestic] industry, whenever he determines that such action would be more appropriate to prevent or remedy serious injury to such industry than action under” § 351(a)(1). Here again there is indication of Congressional authorization as underpinning for Executive power to negotiate trade agreements, including those restricting imports.
c. National security provision.
Another provision for import restrictions, applicable to any commodity, is the “national security provision,” which originated in the 1950’s24 and was transposed into § 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862.
The term “national security” is given an expansive definition in § 232(c) of the Act,25 which provides in part:
In the administration of this section, the Director and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.
The President may adjust imports under this provision, but only after the Director of the Office of Emergency Planning conducts an investigation and reports that continued importation of a commodity is a threat to national security. Section 232(d), 19 U.S.C. § 1862 (d), requires publication of a report of each investigation made by the Director and requires the Director to “publish procedural regulations to give effect to the authority conferred on him by subsection (b).” These regulations were intended to provide for public hearings except where it would be impracticable or injurious to the national security to do so.26
Existing regulations of the Office of Emergency Planning provide that public notice of an investigation shall appear in the Federal Register unless “contrary to the interests of national defense,” and that interested parties shall have an opportunity to make written presentations, to inspect the presentations filed by other parties, and to submit rebuttal presentations. The Director also must “seek information or advice from appropriate Government departments and agencies” and may, “when he deems it appropriate,” hold public hearings.27
The national security clause represents another Congressional action to authorize Executive adjustment of imports in times of domestic crisis, but, *95once again, the Executive is not permitted to act in secrecy, without regard to interests that might be adversely affected.
* * *
Congress has enacted a comprehensive statutory scheme that identifies the Executive’s role in shaping the terms of foreign trade. In doing so Congress has followed a well-established practice of combining broad executive discretion with procedural protection for those who may be affected by its exercise.28 The only exception — in 7 U.S.C. § 1854, which permits the President to negotiate import restrictions on textiles and agricultural products without mandatory procedural prerequisites — proves the rule.
When the President’s tariff adjustment authority, conferred by the Tariff Act of 1922, was challenged as an unconstitutional delegation of legislative power, the prerequisite of a Tariff Commission investigation and hearing was a prominent feature noted by the Supreme Court in its rejection of the challenge. See J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394, 405, 48 S.Ct. 348, 72 L.Ed. 624 (1928).29
The procedures by which Congress has circumscribed executive power to shape the terms of foreign trade are no mere technicalities. While freeing the making of international trade policy from the encumbrances of the legislative process, Congress has sought to maintain public ventilation of the issues relevant to policy formation. To say, as the majority opinion does, that the steel arrangements worked out by the President fall within an inherent Presidential authority not preempted by Congress is to allow the circumvention of these procedural safeguards whenever that suits the Executive. If detailed letters of intent are no different from general appeals to industry, the President would be within his authority to enter into such letters-of-intent arrangements with all industry on every aspect of domestic, as well as foreign commerce. This is dangerous doctrine.
Whatever may be the President’s prerogative when Congress has not spoken, it is untenable, in my view, to assert a continuing inherent Executive authority to negotiate import restraints outside and in disregard of a consistent and comprehensive Congressional pattern for protective procedures.
IV. PRIOR EXECUTIVE PRACTICE
The Government and the foreign steel producers urge on the court that Presidents have long negotiated restraints similar to the steel quotas without specific statutory authority, and that this tradition validates the President’s action here. An appeal to past executive practice is not without relevance, but it is not decisive 30 and often raises as many questions as it purports to answer.
So far as this case is concerned, it suffices to say that while defendants cite examples of import restraints, described more fully in the Appendix, they fail to present a history of import restraints consistently negotiated by the President without regard for the pro*96cedures established by Congress and so represented to the Congress.
In the seventeen Annual Reports on the Trade Agreements Program that the President has submitted to Congress every year since 1957, there is no indication that import limitations on foreign products were sought by the President of the United States acting outside statutory authority. The only exception is that of the steel import quotas involved in the case at bar, described in the reports of 1968 through 1971. Congress cannot fairly be said to have acquiesced in an executive practice perceivable only dimly if at all.
Some of the examples that the Government cites describe executive action colored with statutory authority. This characterization fairly describes the voluntary oil import program of 1957, the 1936 limitation on export of Canadian red cedar shingles, and six of the ten commodity limitations cited in Congressional testimony of Secretary of State Dulles.31 Taken as a whole, the examples do not show that the President has consistently asserted an extra-statutory authority to regulate imports by agreements with foreign governments or firms.
Finally, all the import restraints cited by the defendants were obtained before the enactment of the Trade Expansion Act of 1962. When it enacted the Trade Expansion Act of 1962, Congress had an opportunity to review all of the President’s power to regulate imports. In my view, the Act has scope as a Congressional preemption which “occupies the field” of import restrictions. This approach is heightened by the fact the 1962 Act included authority under § 201 that was expressly limited to run to June 30, 1967. Congress deliberately contracted Presidential latitude by permitting the expiration of that authority, as of July 1, 1967, notwithstanding Executive requests for extension.
V. DISPOSITION
This case must be decided as if the complaint had never contained a claim under the antitrust laws. However, in considering whether this is a claim on which relief may be given, I would take into account that relief in adjudicating invalidity may be wrought so as not to engender injustice in any future claim under the antitrust laws based on the conduct of the foreign producers. Any defense foreign producers might raise in future actions of reliance upon authoritative representations by government officials that an executive participation in the arrangement insulated them from antitrust liability would be undercut by a conclusion that executive participation is not authorized.
When a court is asked for a declaratory judgment — here that executive action restricting steel imports is invalid —it may act on the basis of equitable principles, and may respond to broad public interest concerns beyond those articulated by the parties. United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 83 L.Ed. 1211 (1939). In this extraordinary situation, the steel producers have since 1969 engaged in actions designed to further an arrangement that all assumed was lawfuly entered into. The need to protect the reliance interests of these parties is highlighted by the complexity and the closeness of the issue of the validity of executive action. Compare Blair v. Freeman, 125 U.S.App.D.C. 207, 217, 370 F.2d 229, 239 (1966). Accordingly, in my view, a declaration that executive participation in the agreements is invalid should be given prospective effect only. This would permit courts to rule, should the question arise, that liabilities of the parties for acts prior to the effective date of the judgment be determined as if executive participation in the agreements were valid. Compare Zuber v. Allen, 131 U.S.App.D.C. 109, 124-125, 402 F.2d 660, *97675-676 (1968), aff’d, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969).
It remains to consider the prospective effect that I would give a holding that the action here was outside Executive authority. It is likely that the Executive would have had authority to' invoke the national security clause — if minded to do so after following its hearing procedures and appraising the comments of all affected interests. Here the Executive has failed to follow the procedures mandated by Congress. In reviewing the decision of an administrative agency that has not exceeded its powers but has failed to follow due procedures, we have, in appropriate cases, remanded the action to the agency to allow subsequent correction of the deficiency, without destroying the original decision. See Kennecott Copper Corporation v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972); International Harvester Company v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973); Portland Cement Association v. Ruckelshaus, 158 U.S.App. D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). I believe that an analogous disposition would be appropriate for the present case. I would withhold the court’s mandate for a period of 90 days. This would permit the President, if he should conclude that it is now desirable to limit steel imports and that either the escape clause or the national security provision is applicable, to invoke their procedures.
Alternatively, the President may wish to seek legislation authorizing him to negotiate the kind of voluntary import restraints at issue here, or perhaps broader import control authority. The terms and history of any such legislation might support a ruling of a ratification of the authority of the President to achieve the steel arrangements before us. I would consider it appropriate to entertain an application by the Government for this court to stay its mandate so as to provide a reasonable opportunity to consider validating legislation.
Although I would decide this case against the executive, I am sensitive to the delicacy of the issue of preemption. Where, as here, the power of Congress to regulate a matter committed expressly to it by the Constitution is at stake, a close case should be decided so as to protect Congressional power. But it is likewise appropriate, in a matter so laced with delicate international relationships, for the court to shun a Procrustean rigidity in deference to possible clarification or correction by the President and Congress together.
Appendix: Executive Limitation of Imports Outside Statutory Authority
The Government and the domestic steel producers cite four examples in support of their contention that there exists a “long-standing executive practice” of obtaining import restrictions without resort to any statutory authority. I will discuss each of these seriatim.
I. Restrictions on Japanese Imports During 1930 Decade
On October 12, 1935, the State Department announced that Japanese exporters were restricting their shipments of cotton piece goods to the Philippine Islands (then an American protectorate) to a fixed annual quota, “provided there is no increase in the Philippine tariff.” 3 Foreign Relations of the United States, 1935, at 1008-09 (1953). Although the Department’s release described the arrangement as unilateral action by Japanese manufacturers, memoranda of talks during the preceding six months between Department officials and the Japanese ambassador refer to the arrangement as an “agreement” or a “gentlemen’s agreement.” See 3 Foreign Relations of the United States, 1935, supra, at 951-1048.
On December 21, 1935, similar restrictions on the export of Japanese cotton goods to the United States were announced. 13 State Department Press *98Releases 581 (1935). The Department’s press release stated that the Japanese ambassador was responding to State Department suggestions that “some agreement be reached providing for voluntary control by Japanese exporters.”
On April 4, 1936, the State Department announced that Japanese exporters of cotton rugs had agreed to observe annual quotas on specific products. 14 State Department Press Releases 291 (1936).
The foregoing arrangements were all negotiated through regular diplomatic channels rather than by direct government-to-industry communication.
II. Limitation on Canadian Red Cedar Shingles, 1936
The defendants also cite a 1936 statement by Senator Nye. The statement describes an agreement with Canada to limit the import of Canadian red cedar shingles to 25% of the domestic consumption, see 80 Cong.Rec. 9107-08 (1936), but it adverts to the Reciprocal Trade Agreements Act of 1934, 48 Stat. 943, which empowers the President to “enter into foreign trade agreements with foreign governments or instrumentalities thereof” and to proclaim “such additional import restrictions as are required or appropriate to carry out any foreign trade agreement the President has entered into.”
III. The List Presented by Secretary of State Dulles
Voluntary restraints pertaining to ten commodities were cited by Secretary of State Dulles in testimony before the House Ways and Means Committee, during its consideration of the Trade Agreements Extension Act of 1958. Hearings on Renewal of Trade Agreements Act Before the House Committee on Ways and Means, 85th Cong., 2d Sess. 399 (1958). The commodities are simply listed as “items on which voluntary quotas have been imposed since January 1, 1953, by exporting countries.” No information is given as to the character of the restraints, the dates on which they were imposed, or their duration. Moreover, the President appears to have acted in this case within the broad authority given him by the Trade Agreements Extension Acts of 1951,1953 and 1955. The President was empowered in pursuance of trade agreements made under these Acts to impose additional imports restrictions as are appropriate to carry out any foreign trade agreement, as well as to implement restrictions under the escape clause, or, after 1955, the national security provision.
Procedural requirements were attached to the exercise of these statutory powers, and with respect to most of the commodities these requirements were substantially met. (See Table 1.) All but two of the commodities (items 5 & 7) were the subject of Tariff Commission investigation and hearings. The Commission recommended relief on six of the eight commodities which were the subject of an investigation (items 1, 3, 4, 6, 9, 10), and the President proclaimed restrictions on five of these (items 1, 3, 4, 6, 9).
The pattern is not entirely consistent. Voluntary restraints may have been negotiated on hardwood, plywood, sewing machines, toyo cloth caps, and tuna without Commission action. Yet the evidence taken as a whole negatives the assumption of a deliberate, advertent disregard of statutory procedures, predicated on an asserted inherent executive authority untrammeled by Congressional action. In my view, the information provided to Congress was not sufficient to put Congress on notice that Presidential power to act outside statutory authority was being claimed, and it is insufficient now to establish Congressional acquiescence.
*99IV. 1956 Agreement With Japan Limiting Textile Imports
On May 16, 1956, the United States concluded an agreement with Japan limiting the import of Japanese textiles. The agreement resulted from communications between the governments since 1955, a period during which domestic manufacturers had expressed great concern about Japanese textile imports and had filed several petitions before the Tariff Commission1 for escape clause relief.
At approximately the same .time, proposed legislation that eventually became § 204 of the Agricultural Act of 1956, 70 Stat. 188, was pending in Congress. It would authorize the President to negotiate with foreign governments in order to obtain agreements limiting imports of agricultural commodities or textile products, and .to issue regulations governing the entry or withdrawal from warehouse of products subject to such agreements. See H.R.Report No.1986, 84th Cong., 2d Sess. 15 (1956). The legislation that included this provision was passed by both houses of Congress, but was vetoed because of its commodity price support provisions. See 102 Cong.Rec. 6107 (Senate passage), 6158 (House passage), 6317-18 (President’s veto message) (1956).
An identical provision was incorporated in legislation introduced in the House after the veto, see 102 Cong.Rec. 7229 (1956); H.R.Rep.No.2077, 84th Cong., 2d Sess. 8-9 (1956), and its applicability to the then-prevailing concern about Japanese textile imports was pointed out by Representative Cooley, House sponsor of the bill. See 102 Cong.Rec. 7346 (1956). Legislation delegating the new authority was passed by both houses2 and was signed into law on May 28, 1956.3
The agreement with the Japenese government was concluded eight days before the authorizing legislation received final approval, but the quotas were not announced publicly until January, 1957. In context, the exchange of notes was a de facto interchange in contemplation of the de jure executive authority that Congress was about to provide. To all public appearances the textile quotas were not established until after the authorizing legislation had been enacted. Subsequent to 1956 the statute has been represented to Congress, and cited by commentators, as the authority for the agreement. See Hearings on H.R. 9900 Before the House Committee on Ways and Means, 87th Cong., 2d Sess. 3794 (1962) (testimony of Secretary of Commerce Hodges); M.D.H. Smith, Voluntary Export Quotas and U. S. Trade Policy — A New Nontariff Barrier, 5 Law & Policy in Int’l. Business 10, 31-32 (1973).
V. Voluntary Quotas on Oil Imports
In July, 1954, President Eisenhower established an Advisory Committee on Energy Supplies and Resources Policy to study the development of energy resources. See Report of the Presidential Advisory Committee on Energy Supplies and Resources Policy, 1955-56, February 26, 1955, quoted in Cabinet Task Force on Oil Import Control, The Oil Import Question 163 (1970) (hereinafter cited as Oil Import Question). In November, 1954, a task force appointed by the Committee concluded that there was a possible threat to national security in “reliance beyond present relative levels on foreign crude oil to supply domestic markets” and recommended that the existing ratio of imports to domestic production be maintained by “voluntary, individual action of the importing companies.” Oil *100Import Question 171 (emphasis added). The Advisory Committee, in its report to the President in February, 1955, followed these recommendations. Oil Import Question 165-166. It is unclear precisely what, if any, government action followed from the Committee report. It was apparently limited to exhortations to oil-importing companies to exercise restraint. First Annual Report on the Operation of the Trade Agreements Program, H.Doc.No.93, 85th Cong., 1st Sess. 10 (1957).
The national security provision was enacted in June, 1955, in part because of concern with the President’s authority to deal with oil imports. On October 17, 1956, the Presidential Advisory Committee renewed its recommendation to the President that the 1954 ratio be maintained in all but one region of the United States, but again recommended only voluntary, individual action. Oil Import Question 176-78. On October 22, however, the Director of the Office of Defense Mobilization held hearings in response to a petition that had been filed by petroleum companies in August, 1956, requesting action under the national security provision. At the hearing, the Director received views supporting and opposing Section 7 action to limit oil imports. On April 23, 1957, he advised the President that “[pjursuant to section 7 of the Trade Agreements Extension Act of 1955 ... I have reason to believe that crude oil is being imported into the U.S. in such quantities as to threaten to impair the national security.” Oil Import Questions 183, 194.
On June 26, the President established a Special Cabinet Committee to Investigate Crude Oil Imports, which on July 29 reported with a plan for limiting oil imports into each region, with import volume limits for individual companies to be determined and administered by the Department of the Interior and the Office of Defense Mobilization. The Committee’s proposal contemplated voluntary compliance by the petroleum companies, but concluded that if no such compliance was forthcoming the President should “find that there is a threat to the national security within the meaning of Section 7. . . . ” Oil Import Question 186. The President immediately directed the Secretary of the Interior and the Director of O.D.M. to implement the Committee’s proposal.
The Voluntary Oil Import Program thus established continued for nearly two years. The President’s Special Committee maintained oversight and, in January, 1959, requested that the Director of the Office of Civil and Defense Mobilization initiate another investigation. On February 27, 1959, the Director made another finding of harm to national security, and on March 10 the President proclaimed mandatory quotas, invoking his section 7 powers. Oil Import Question 195-203.
Although the defendants cite the oil program of 1957 as an illustration of Presidential establishment of “voluntary” limitation of imports, without the aid of statutory authority, the program was created only after the Director of O.D.M. held hearings and made the finding mandated by section 7. The Special Committee’s plan and the President’s approval of it were reported to Congress as actions under the national security amendment to the trade acts. See Second Annual Report on the Trade Agreements Program, H.Doc.No.384, 85th Cong., 2d Sess. 8 (1958); Third Annual Report of the President of the United States on the Trade Agreements Program 12 (1959). The President did not invoke the full extent of his section 7 authority, but, having complied with the statutory procedures, the President was entitled to exercise less than the full measure of his statutory authority.4 The voluntary program limiting oil imports *101appears to illustrate flexible Presidential action precisely in the manner contemplated by Congress when it passed the national security provision.
*102
*103
*104
. Affidavit dated August 25, 1972, of Julius L. Katz, Deputy Assistant Secretary of State for International Resources and Pood Policy, Bureau of Economic Affairs, paragraph 14.
. Paragraph 5 of the May 2, 1972, letter of the associations of the steel producers of the U.K. and the EEC, provides:
Consultations — The above-mentioned producer associations, through their authorized representatives, hold themselves ready to consult with representatives of the United States Government on any problem or question that may arise with respect to this voluntary restraint undertaking. They expect that, similarly, the United States Government would be prepared to consult with their representatives on any problem or question that may arise with respect to this voluntary restraint undertaking. They reserve the right to request consultation in the event that they consider they have been placed in a disadvantageous position with respect to other exporters of steel to the United States by developments in the international steel market taking place subsequent to entering this undertaking, or if developments in the international steel market should take place which could substantially impair the carrying out of this undertaking. Similarly, they recognize that the United States Government may request consultation if it considers that developments in the international steel market have taken place during the term of this undertaking which substantially affect any of the provisions of this arrangement.
The above-mentioned producer associations reserve the right to request consultation with respect to the exclusion in particular *87situations from the export limitation quantity in paragraph 1 above of shipments of large-diameter line pipe.
The May 4, 1972 letter of the Japanese steel producers contains a virtually identical paragraph.
. Affidavit of Mr. Katz, ¶ 7, JA 115a-117a, referring to 1968 consideration “by senior officials of the responsible agencies of the Government.”
.Letters of the European Economic Community and United Kingdom associations of steel producers and of the Japan Iron and Steel Exporters’ Association, ¶ 6, JA 131a and 137 a.
. See pp. 146-148 supra.
. See the 1935 limitation on imports of Japanese cotton goods and the 1936 limitation on imports of Japanese cotton rugs, both described in the Appendix, infra.
. This assumes the court would pass on the merits. A court might well dismiss an action on another ground, like lack of clean hands.
. See p. 155 infra.
. See pp. 155-156 infra.
. Defendants cite a statement in the conference report accompanying the first national security provision that “it is the understanding of all the conferees, both House and Senate, that it is not intended to, and does not, diminish or impair any authority the President may have under any other law.” H.R. Report No. 745, 84th Cong., 1st Sess. 6 (1955) (emphasis added).
The Conference Report, however, continues: For example, it was emphasized that if the President sees fit to stockpile critical materials under any other law that action may be taken wholly aside from the authority contained in this amendment.
The circumspection of Congress, in avoiding any possible contention that it intended to limit other authority of the President, like the stockpiling of critical materials, cannot fairly be stretched into an acquiescence in an inherent general authority to limit imports.
The same approach undercuts defendants’ reliance on a statement in the House Report accompanying the Trade Agreements Extension Act of 1958, in which the national security provision was reenacted with modification : “ . . . the President may also take any action available to him under any of his other powers.” H.R.Rep.No.1761, 85th Cong., 2d Sess. 14 (1958). The entire sentence in the House Report reads:
In emergencies and for such time as necessary, the President may also take any action available to him under any of his other powers. (Emphasis added.)
Defendants have never attempted to characterize the executive action taken here a response to an emergency. The foregoing language seems irrelevant to the problems before us.
. In 1962 the Senate approved a bill with a broad authority in the President to limit imports, in this provision (denominated as § 353) :
Notwithstanding any other provision of law, the President may, when he finds it in the national interest, proclaim with respect to any article imported into the United States'—
‡ ‡ ¡i' ¥
(3) the imposition of such other import restrictions as he finds necessary. H.R. 11970, 87th Cong., 2d Sess. (1962).
This provision did not survive in the Trade Expansion Act of 1962 because it was deleted in Conference. See H.R.Rep.No.2518, 87th Cong., 2d Sess. 13 (1962).
The other proposal to enlarge Presidential authority to restrict imports emerged during consideration of the Revenue Act of 1971. New quota authority was proposed by the *92Senate to meet balance-of-payments emergencies, which were defined with a breadth sufficient to justify the present quotas. Again, however, the proposal was rejected during House-Senate Conference. H.R.Rep.No.708, 92d Cong., 1st Sess. 54 (1971).
.Section 336, 46 Stat. at 701.
. 19 TJ.S.C. § 1821(a).
. 19 TJ.S.C. § 1821(a).
. See S.Rep.No.2059, 87th Cong., 2d Sess. 7 (1962) ; H.R.Rep.No.1818, 87th Cong., 2d Sess. 2 (1962).
. 19 U.S.C. § 1841.
. 19 U.S.C. § 1841.
. 19 U.S.C. § 1842.
. 19 U.S.C. § 1843.
. E. g., the Sugar Act of 1948, ch. 519, § 1 et seq., 61 Stat. 922-934, as amended, 7 U.S.C. § 1100 et seq.; the Meat Act of 1964, § 2, 78 Stat. 594.
. Section 22(b) of the Agricultural Adjustment Act of 1933, as added, Act of August 24, 1935, ch. 641, § 31, 49 Stat. 773, as amended, 7 U.S.C. § 624(b).
.See, e. g., Hearings on H.R. 9900 Before the House Committee on Ways and Means, 87th Cong., 2d Sess. 3853-55 (1962); M.D.H. Smith, Voluntary Export Quotas and U.S. Trade Policy — A New Nontariff Barrier, 5 Law & Policy in Inti. Business 10, 31-32 (1973).
. Codified in 19 U.S.C. § 1982, and captioned “Orderly marketing agreements.”
. In Section 7 of the Trade Agreements Extension Act of 1955, 69 Stat. 162. This was modified by Section 8 of the Trade Agreements Extension Act of 1958, 72 Stat. 673.
. 19 U.S.C. § 1862(c).
. H.R.Rep.No.1761, 85th Cong., 2d Sess. 15 (1958).
. O.E.P.Reg.No.4, Sec. 7(b), 7(e), 7(f); 32A C.F.R. 97 (1973).
. Compare Natural Gas Act, § 5, 15 U.S.C. § 717d (FPC shall determine “just and reasonable rate[s]” after hearing) ; Federal Aviation Act of 1958, § 401, 49 U.S.C. § 1371 (Board may issue license to engage in air transportation if it finds, after hearing, that transportation is “required by the public convenience and necessity.”) ; Communications Act of 1934, § 309, 47 U.S.C. § 309 (hearings may be held on licenses to be granted in the “public interest, convenience, and necessity.”).
. Professor Davis has suggested that a modern “delegation doctrine” should embody a quest for safeguards against arbitrary action, including open procedures where precise standards limiting executive discretion are not available. K.C. Davis, Administrative Law Text § 2.08 at 44 (3d ed. 1972). Compare Yakus v. United States, 321 U.S. 414, 433 ff., 64 S.Ct. 660, 88 L.Ed. 834 (1944) ; Amalgamated Meat Gutters and Butcher Workmen of North America, AFL-CIO v. Connally, 337 F.Supp. 737, 759-762 (D.D.C., 3-judge court, 1971).
. Wilderness Society v. Morton, 156 U.S. App.D.C. 121, 144, 479 F.2d 842, 865 (1973).
. Hearings on Renewal of Trade Agreements Act Before the House Committee on Ways and Means, 85th Cong., 2d Sess. 399 (1958).
. The negotiation of the agreement and its terms are described in W. Hunsberger, Japan and the United States in World Trade 317-22 (1964).
. See 102 Cong.Rec. 7450 (House passage), 8514 (Senate passage). The Conference Report on the legislation, which resolved differences between the houses not material here, was adopted on May 23. See 102 Cong.Rec. 8684 (Senate passage), 8832 (House passage).
.See 102 Cong.Rec. 9799 (Presidential approval) .
. This conclusion is strengthened by a later representation to Congress that the President’s actions were taken pursuant to the national security provision. See Hearings on Renewal . of Trade Agreements Act Before the House Committee on Ways and Means, 85th Cong., 1st Sess. 2685 (1958) (statement of Deputy Under Secretary of State C. Douglas Dillon).