dissenting in part:
I concur in all respects with Judge Robb’s majority opinion, save one: I am troubled by the manner in which the court refuses to decide the ex parte issue for failure to raise it properly under section 307.
The majority opinion disposes of NRDC’s challenge concerning post-comment period White House contacts by holding that NRDC failed to raise this objection before EPA in. a timely manner, and is therefore precluded from doing so here under 42 U.S.C. § 7607(d)(9)(D); § 7607(d)(7)(B). EPA itself, however, nowhere claims such a bar to deciding this issue on the merits, and I find the present record inconclusive on whether this issue was appropriately brought to EPA’s attention. I would therefore have posed a single interrogatory to the parties to ascertain whether a timely objection by NRDC was in fact made on this issue so as to bring it within the scope of our review under this statute.
As the majority recognizes, the relevant section, 42 U.S.C. § 7607(d)(7)(B), requires only an “objection [of central relevance] . . . raised with reasonable specificity” to require the Administrator to convene a proceeding for reconsideration.
While we may be confident here that any formal petitions for reconsideration would appear in the record, we cannot be as sure about the presence of other, less formal objections to the rulemaking. The latter would not necessarily appear in the record on appeal, because the record for judicial review as defined in section 307(d)(7)(A) does not include all post-promulgation objections. It is also possible that an objection made to the alleged ex parte contacts *375even before promulgation might not have been placed in the record as being “centrally relevant.”
Without more reliable knowledge that no reasonably specific, timely objection was made by NRDC regarding post-comment period communications, I would not find the issue barred in this court without some statement by the parties addressing this point. My suspicion that an appropriate objection may in fact have been made is fueled by (1) Environmental Defense Fund testimony in the February, 1979 hearings before the Senate Subcommittee on Environmental Pollution,1 that it had written Administrator Costle two weeks before about White House-EPA ex parte contacts; and (2) EPA’s own failure to object to NRDC’s claims on the ground that the claims were not properly raised before the agency. EPA, in fact, defends exclusively on the merits, asserting that the post-comment period White House communications were proper and duly recorded. See Brief for Respondent EPA at 101-10.
In short, I do not think it reasonable to assume, on the record before us and in the absence of any such assertion by EPA, that no timely objection was made on the ex parte issue. I would instead have resolved this factual ambiguity in the record before deciding whether to pass on the merits of-the ex parte issue.
. See Executive Branch Review of Environmental Regulations: Hearings Before the Sub-comm. on Environmental Pollution of the Senate Comm, on Environment and Public Works, 96th Cong., 1st Sess. 57 (Feb. 26, 1979) (testimony of Robert Rauch, Staff Attorney, Envt’l Def. Fund).