concurring in vacating the decision:
I concur in vacating the decision of the FCC. The Commission’s failure to make public the staff study that proved so central to its final decision violates fundamental rulemaking principles.1 As the majority opinion documents,2 the FCC exhibited an almost cavalier disregard for the publics right to comment on the critical data and methodology supporting the Commission’s finding that “market forces had provided a significant even if not perfect amount of diversity.”3 This conclusion in turn is a vital link in the Commission’s reasoning underlying its adoption of the Policy Statement. I believe therefore that the record must be reopened to permit meaningful public participation in the Commission’s decision.
Because the Commission’s procedural unfairness requires vacating the rule, I would not reach the merits of the FCC’s interpretation of the public interest standard as applied to the abandonment of a so-called distinctive or unique format. But since the majority has precluded the FCC from adopting a rule contrary to the decision in WEFM, I feel compelled to note my agreement with much of Judge Tamm’s thoughtful dissent. Implementing the public interest standard calls for a strong dose of policy judgment, a responsibility entrusted by Congress to the FCC.4 Yet the majority *340virtually confines the FCC to a spectator’s role in formulating policies that will promote and preserve diversity while minimizing the hazards of government intrusion into the content of broadcasting.
Even apart from this unwillingness to give appropriate deference to the Commission’s judgment, I would remain troubled by the route taken by the majority. As I explained at some length in WEFM,5 regulation of entertainment formats is not content neutral. The regulator is inevitably led to favor some forms of expression over others.6 The majority acknowledges the “sensitive First Amendment implications”7 of government oversight of format choice, but fails to grapple seriously with the constitutional implications of its decision.
I do not contend that there is a simple resolution to the conflict between fostering diversity, on the one hand, and protecting the media from chilling government interference on the other. The concerns I expressed in WEFM continue to plague efforts to regulate the airwaves in the public interest. Perhaps Congress will exercise its prerogative to cut the Gordian knot and free the choice of format from the bondage of government regulation.8 Alternatively, the dawning technological revolution may eliminate this dilemma, by opening up an unprecedented number of accessible outlets for speech.9 For the time being, however, the responsibility for reconciling these interests is lodged with the FCC and, to a limited extent, the courts. The record of fifty years of broadcast regulation suggests that the FCC’s affirmative efforts to promote diversity have not only failed to achieve that goal, but have entangled the Commission and the courts in perilous government oversight of the content of expression. I cannot so easily reject the FCC’s decision to turn away from this troubling experience and to cast its lot with the marketplace.
. “It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of . . . data that, [in] critical degree, is known only to the agency.” Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 336, 486 F.2d 375, 393 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
. Majority op. at 327-329 of 197 U.S.App.D.C., at 846-848 of 610 F.2d.
. FCC Br. at 18; see Memorandum Opinion and Order, 60 FCC 2d 858, 863 (1976).
. In National Citizens Committee for Broadcasting v. FCC, 181 U.S.App.D.C. 1, 555 F.2d *340938 (1977), rev'd 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978), a panel of this court reversed the FCC’s decision exempting roughly 90% of existing co-located broadcast/newspaper combinations from a rule banning such cross-ownership. We concluded that, on the record developed by the FCC, the Commission had acted arbitrarily and capriciously by limiting divestiture to 16 “egregious” cases. The Supreme Court reversed, suggesting that we had not given sufficient deference to the Commission’s judgment. See 436 U.S. at 810, 813-815, 98 S.Ct. 2096. If we are directed to defer to the FCC’s decision in NCCB, which seemed sharply at odds with the FCC’s mandate, surely we should be hesitant to overturn the Commission’s judgment here, where the Commission’s accommodation of the conflicting policy interests is neither irrational nor wholly contrary to the purposes of the Communications Act.
. Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 215-20, 506 F,2d 246, 276-81 (1974) (Bazelon, C. J., concurring).
. This problem is not confined to regulation of format choices. See, e. g., Brandywine-Main Line Radio Inc. v. FCC, 153 U.S.App.D.C. 305, 352, 473 F.2d 16, 63 (1972) (Bazelon, C. J., dissenting), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).
. Majority op. at 335 of 197 U.S.App.D.C., at 854 of 610 F.2d.
. As the majority notes, legislation proposing deregulation of radio is now pending before Congress. See majority op. at 338-339 & nn.55, 56, of 197 U.S.App.D.C., at 857-858 & nn.55, 56 of 610 F.2d.
. See generally Baer, Telecommunications Technology in the 1980’s, in Communications for Tomorrow Policy Perspectives for the 1980’s 61 (G. Robinson ed. 1978).