(dissenting in part and concurring in part).
I concur in the Judgment insofar as it affirms the Judgment of the District Court with respect to Documents 1 and 4 but respectfully dissent from the vacation of the Judgment of the District Court with respect to Documents 3, 5, 6 and 7 and the remand to the District Court.
The majority opinion does not apply existing law. In my opinion the Judgment of the District Court as to Documents 3, 5, 6 and 7 should be affirmed on the ground that said documents are exempt from disclosure as the “working papers” of the attorneys and within the “attorney-client privilege” as reflected in the exemption set forth in 5 U.S.C. § 552(b)(5) (“Exemption 5”) and because the termination of the litigation to which the workTproduct relates does not destroy this privilege. The majority opinion gives no credence to the “attorney-client privilege” of the work-product rule as embodied in Exemption 5.
*52The work-product rule was first articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947). There the Court, dealing primarily with work-product, i.e., statements taken by attorneys from potential witnesses, said:
the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.
Much later, the Supreme Court noted in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975) that the work-product rule was available to Government attorneys:
It is equally clear that Congress had the attorney’s work-product privilege specifically in mind when it adopted Exemption 5 and that such a privilege had been recognized in the civil discovery context by the prior case law.... [The] case law clearly makes the attorney work-product rule of Hickman v. Taylor ... applicable to Government attorneys in litigation. Whatever the outer boundaries of the attorney’s work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy.
Our opinion in Mervin v. FTC, 591 F.2d 821, 825 (D.C.Cir.1978) is to the same effect: (“. . . it is clear that Exemption five includes the attorney work-product privilege”).
The Sears opinion, by Justice White, also pointed out that the traditional “attorney-client privilege” was subsumed in the work-product rule carried into FOIA by Exemption 5:
The Senate Report states that Exemption 5 “would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties,” S.Rep.No. 813, p. 2....
421 U.S. at 154, 95 S.Ct. at 1518. (Emphasis added)
As the majority notes, the four documents in question in the instant case clearly qualify as work-product. Majority at 2. Under the applicable rules, “[p]arties may obtain discovery regarding any matter, not privileged” and when discovery is ordered the court is admonished to “protect against disclosure of the mental expressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” F.R.Civ.P. 26. Documents 5, 6 and 7 are memoranda prepared by an attorney that reveal the attorney’s thought processes in the preparation of the case.
Document 3 contains advice and instructions given by an attorney as to procedures that the Government should follow with respect to the preparation of certain aspects of the case. This is clearly the work-product of an attorney setting forth his mental processes, opinion and legal theory. It is also clearly within the traditional “attorney-client privilege.” There is no question that it is protected from disclosure by Exemption 5.
My in camera inspection of the six documents involved in this case convinces me that they are all covered by the work-product rule, and, accordingly, by Exemption 5. There is nothing therein that is not work-product or that plaintiff would need to start a lawsuit.
The majority neatly sidesteps this point by saying, in essence, that even though the documents are bona fide work-product, the work-product rule and Exemption 5 are inapplicable insofar as no litigation related to the original Americana suit, United States v. Americana Corp., Civil No. 388-72 (D.N.J.), is currently under way and the methods of obtaining evidence discussed in the documents have apparently been long since discontinued.
This argument is not supported by the facts or the law. It is sound case law that “documents prepared for one case have the *53same protection in a second case, at least if the two cases are closely related.” C. Wright & A. Miller, Federal Practice and Procedure § 2024 at 200-201 (1970). See Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 484 (4th Cir. 1971) (upon the termination of litigation the work-product documents of an attorney prepared incident thereto do not lose the qualified immunity extended to them under Rule 26(b)(3)); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557-58 (2d Cir. 1967) (documents prepared by non-party attorney in prior litigation are protected from adversary disclosure in subsequent litigation as attorney’s work-product and by attorney-client privilege where documents reflected attorney’s mental processes); Philadelphia Electric Company v. Anaconda American Brass Co., 275 F.Supp. 146, 147 (E.D.Pa.1967) (documents prepared in defense of a criminal antitrust action are within the work-product rule in a subsequent civil action).
Other cases also hold that the work-product privilege as carried forth by Exemption 5 is not destroyed by the termination of initial litigation. In Mervin v. FTC, supra, wherein a former FTC employee sued unsuccessfully to force disclosure of documents related to an earlier suit for reinstatement, this court held that the work-product privilege may extend past the end of the litigation to which the work-product relates. See also National Public Radio v. Bell, 431 F.Supp. 509, 512 (D.D.C.1977) (“Despite plaintiff’s unsupported contention that Exemption 5 protection ‘disappear[s] when no further legal action is in prospect,’ there can be no doubt but that the documents in question fall squarely within the protective scope of ... the exemption”).
In the instant case, as the majority suggests, petitioner’s request for disclosure relates directly to the FTC’s April, 1973, investigation of Americana Corporation and Grolier Incorporated. That investigation resulted in United States v. Americana Corporation, supra, a civil penalty action filed by the government. The suit was dismissed on November 16, 1976.
Petitioner, who was a co-defendant in the earlier Americana suit, now requests disclosure under FOIA of documentary material prepared, and advice given, by government counsel that related directly to strategy and tactics to be followed by the government in the Americana litigation. Contrary to the majority’s remarkable assertion that “the two cases are neither ‘closely related’ nor even ‘related’,” Majority at 9, the present suit could not be more directly related to the Americana litigation. The work-product privilege as embodied in Exemption 5, inclusive of the “attorney-client privilege [as] applied to private parties,” would even in the majority’s judgment, have applied in Americana. Therefore, it properly extends to the instant case as well. The majority attempts to divert attention from this most obvious of conclusions by decrying the fact that according to such a finding, “any material that was work product at any time would never be disclosable under FOIA because the filing of the FOIA suit itself would constitute ‘related’ litigation.” At 557. This lament bespeaks a fundamental failure to grasp the raison d’etre of Exemption 5. It was precisely to protect bona fide work product and privileged attorney-client matter from the likes of FOIA requests that Exemption 5 was enacted in the first place. NLRB v. Sears, Roebuck & Co., 421 U.S. at 154, 95 S.Ct. at 1518; Mervin v. FTC, 591 F.2d at 825. A FOIA request such as is made in the instant case is the typical “related” litigation contemplated by the statute. As such, it is properly turned away on Exemption 5 grounds.
The requested material is thus exempt as expressing the attorney’s thoughts and strategies,1 and because the ideas expressed *54constitute privileged advice by an attorney to his client, NLRB v. Sears, Roebuck & Co., 421 U.S. at 154, 95 S.Ct. at 1518. I would accordingly affirm the Judgment of the District Court in all respects and hold that the documents are exempt from disclosure under 5 U.S.C. § 552(b)(5).
. The analysis of the majority places great weight on the fact that “[t]he government’s investigation and litigation strategy in such an action obviously would have little, if anything, to do with its strategy in defending this FOIA suit.” At 557. 1 am hard pressed to glean how this point bears the slightest relevance to this proceeding. The relative strategies in the two suits in question are immaterial in this inquiry. All we are concerned with here is that the strategies in the original Americana litigation were bona fide work product. That they *54were means that they are protected in the instant case by Exemption 5. The strategy employed by the government in the instant case is of absolutely no concern to us here and, accordingly, is useless in support of the majority’s opinion.