(concurring in the result):
I concur in Parts II and III of Judge Fahy’s opinion and in his conclusion that jurisdiction exists under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1970). However, I would decide the merits on statutory, rather than constitutional, grounds.
I would hold that applicants who have been denied parole have a minimum procedural right under the Parole Act as a whole, read in the light of the Administrative Procedure Act, 5 U.S.C. § 555(e) (1970), to “a brief statement of the grounds for denial.” King v. United States, 492 F.2d 1337 (7th Cir. 1974), See also Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974).1
In my view, the King opinion ably sets forth the many pertinent considerations underlying both its statutory construction and its abstention from constitutional adjudication. It reports the recommendations that reasons be required, *285made by the Task Force on Corrections for the President’s Commission on Law Enforcement and Administration of Justice (in 1967), and by the Administrative Conference (in 1972). They both stress the need for a statement of reasons as a check on abuse or error. The opinion also describes the “pitfalls” discerned by the Administrative Conference in the excessive rigidity and formality that may arise in the effectuation of any “reasons” requirement, and the readiness of the United States Board of Parole to provide reasons on an experimental basis.
The Rule of Administrative Law embraces the “simple but fundamental” requirement that an agency or official set forth its reasons,2 a requirement that is essential to “the integrity of the Administrative process,”3 for it tends to require “the agency to focus on the values served by its decision, . . . hence releasing the clutch of unconscious preference and irrelevant prejudice.”4 It is well understood that the manner of application of this requirement will vary with the nature of the agency, for agencies are not fungible, and with the nature and formality of the proceeding and the agency’s determination. While the Rule of Administrative Law, with its procedural requirements, is rooted in fairness considerations, the emphasis is on a broad-gauged appraisal of the decision-making process, and assurance of its reliability.
When judicial doctrines are cast in terms of an individual’s constitutional “rights,” they run a risk of abstraction and inflexibility, a tendency to block avenues of experimentation. The tendency persists even though due process decisions have been concerned with the integrity of the decision-making process, as well as with individual rights. See Wolff v. McDonnell, 418 U.S. 539 at 564, 94 S.Ct. 2963 at 2979, 41 L.Ed.2d 935 (1974). The difficulties inhering in a constitutional determination for this case are compounded by the fact that it will be applicable to state, as well as federal, parole determinations, and that the characteristics and processes of the state parole systems involve matters of background and perspective that are not before us and on which we have no informed judgment.
I acknowledge that a substantial constitutional question is raised by appellees. This should inform our interpretation of the statute, but, by declining to rest our decision on constitutional grounds, we would provide “such procedural protection as comports with basic fairness, discerned in the light of the contemporary regulatory climate”, while preserving “an opportunity for Congress [and the states] to reexamine the issue” in terms of the problems that may emerge. Thompson v. Washington, 162 U.S.App.D.C. 39, 52, 497 F.2d 626, 639 (1973).5
The matter would stand in different perspective in my mind if the constitutional issues were foreclosed by established precedent. But that is not the case. While it is clear that “a prisoner is not wholly stripped of constitutional protections,” see Wolff v. McDonnell, supra, 418 at 555, 94 S.Ct. at 2974, it is likewise clear from Wolff that Morrissey v. *286Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), is not applicable in full force to prisoners still in detention— even when they are involved in disciplinary proceedings that may culminate in the removal of a statutory right to good-time credit that is, under state law, subject to forfeit only for serious misconduct.
The quality of a prisoner’s expectation in a grant of parole may vary from state to state, but typically it is less firm than his legitimate expectation of receiving good-time credit — that is, it frequently depends on some assessment of rehabilitation potential and is not awarded automatically, in the absence of misconduct, as soon as eligibility is established. And of course it is far different from the expectancy of a person on parole or probation,6 who has a statutory right to remain at large in the absence of probable misconduct.
Taking into account the considerations that the ambit of constitutional rights of procedure may depend on the nature and extent of statutory expectancies,7 that these vary among the states, and that constitutional doctrine has a greater tendency toward abstraction, extension and rigidity, it is, in my view, sound principle to confine our decision to require a statement of reasons to statutory grounds.8
. Pickus held that the action of the Board of Parole in setting forth criteria for parole selection is subject to the notice-and-comment requirements for rule-making established by section 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1970).
. SEC v. Chenery Corp., 332 U.S. 194, 196-197, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).
. Atchison, T. & S.F.R. Co. v. Wichita Board of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973).
. Greater Boston TV Corp. v. FCC, 143 U.S. App.D.C. 383, 394, 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. Another reason for withholding any ruling on a constitutional claim that Parole Boards state the reasons for their decisions is the difficulty of distinguishing the constitutional claim of entitlement to a statement of reasons by courts in sentencing. Judge Fahy distinguishes Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), on the ground that the discretion of a judge, unlike that of a Parole Board, is exercised within legislatively delineated alternatives. In practical effect, however, it is clear that a judge has a much wider scope of discretion than a Board. A Board makes an either-or decision; it is given no legislatively defined alternatives because its discretion, unlike a judge’s, is not broad enough to encompass alternatives.
. Morrissey was extended to probationers in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
. Thompson v. Washington, supra, 162 U.S. App.D.C. at 48, 497 F.2d at 635.
. Out of an abundance of caution, and to avoid any possible misunderstanding, I should like to make it clear that my conclusion as to the applicability of the reasons requirement of the Administrative Procedure Act does not signify that this situation is governed by the provision for judicial review of agency action. See 5 U.S.C. § 702 (1970). The Act’s procedural provisions for notice, opportunity to make a presentation, and a brief statement of reasons apply even where the action is fully “committed to agency discretion” and thus not judicially reviewable. See 5 U.S.C. § 555(a), 701(a)(2). In Morrissey, supra, 408 U.S. at 479-480, 92 S.Ct. 2593, the Court was careful to point out that the decision-making process — the determinations of what circumstances constitute violations of parole, and of what to do about violations that are identified — is essentially committed to the discretion of parole authorities, rather than to the courts. It is not necessary to consider whether, or to what extent, determinations of the U.S. Parole Board are “committed to agency discretion”- — beyond our ruling that the Board does not have discretion to withhold a statement of reasons for denying parole.
We are also not called upon to consider whether in some case or class of cases a statement of reasons can be withheld because the reason is obvious; if that is really the case it is doubtful that due process would require a ceremony for reciting the obvious.
Denials of parole generally — and certainly the present case in particular — offer no possibility of excluding a statement of reasons requirement because the denial merely constitutes an “affirmance” of some other action. That clause in 5 U.S.C. § 555(e) has little, if any, applicability to a determination which in its very essence turns on the question whether a previous determination should be extended in the light of a re-examination of the whole record, including developments in the recent past.