concurring:
We concur in the result in this case, namely, affirmance of the preliminary injunction and remand to the District Court with instructions for further proceedings. We do not agree, however, with Chief Judge Robinson’s reasons for affirming the preliminary injunction, and we see differently what should transpire upon remand to the District Court. In our view, de novo review in the District Court was inappropriate upon motion for preliminary injunction; such review also would be inappropriate at the trial on the merits; and no new or different procedures should be required of the agency. We uphold the preliminary injunction on other grounds, however, and our instructions to the District Court differ somewhat from those of the Chief Judge.
FOIA provides for de novo review by the district court of the question of statutory exemption from disclosure, but the FOIA right of action extends only to those who *136request disclosure. See 5 U.S.C. § 552(a)(4)(B) (1982). Because the submitter of information has no right of action under FOIA to enjoin disclosure, see Chrysler Corp. v. Brown, 441 U.S. 281, 290-94, 99 S.Ct. 1705, 1711-13, 60 L.Ed.2d 208 (1979), the de novo review section of that act is not available to submitters. Indeed, when the Administrative Conference of the United States surveyed the law regarding submitters' rights, it concluded that it would take an amendment of current law for submitters ever to have de novo review available to them, and the Conference recommended that Congress enact such amendments. See 1 C.F.R. § 305.82-1 (1983) (ACUS recommendation regarding submitters’ rights under FOIA).
Chrysler Corp. v. Brown, 441 U.S. at 317-18, 99 S.Ct. at 1725-26, makes it clear that an information-submitter’s right to judicial review of an agency’s decision to disclose submitted records arises under the APA. Upon this point we are in agreement with Chief Judge Robinson. We differ as to the nature of the APA review available in this case.
In all cases challenging agency action under the APA, the “action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)(A) and citing id § 706(2)(B)-(D)). The “focal point for judicial review” in such cases “should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). See also United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963) (“in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, ... consideration is to be confined to the administrative record and ... no de novo proceeding may be held”).
The APA contemplates de novo review of agency action only when “the facts are subject to trial de novo by the reviewing court,” 5 U.S.C. § 706(2)(F) (1982). It would appear, therefore, that something other than the APA must make the facts “subject to trial de novo,” but the Supreme Court has interpreted section 706(2)(F) to allow a reviewing court to create its own record when the agency’s factfinding procedures are inadequate. See Camp v. Pitts, 411 U.S. at 141-42, 93 S.Ct. at 1243-44; Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. See also Doraiswamy v. Secretary of Labor, 555 F.2d 832, 839 n. 39 (noting exception), 839-42 (rejecting de novo review) (D.C.Cir.1976) (Robinson, J.). Chief Judge Robinson finds that OFCCP’s procedures were inadequate, and he rests his conclusions in part II of his opinion on that finding. We cannot agree.
The two seminal Supreme Court cases do not tell us what would make agency procedures inadequate; in neither Camp v. Pitts nor Overton Park were inadequacies found. Chief Judge Robinson has cited only one case holding agency factfinding procedures so deficient that de novo review under section 706(2)(F) was warranted, see Porter v. Califano, 592 F.2d 770, 782-83 (5th Cir.1979), cited supra at 738 n. 106, and that case involved substantial bias in an agency disciplinary proceeding. We have found no others. We can only conclude that the procedures must be severely defective before a court proceeding under the APA can substitute de novo review for review of the agency’s record. Cf. Upjohn Manufacturing Co. v. Schweiker, 681 F.2d 480, 483 (6th Cir.1982) (if not provided by statute, de novo review “is the exception rather than the rule”). This is not such a case.
Under the regulations we are reviewing, the submitter is informed that his materials may be disclosed if he makes no claim of exemption. He is told to whom to claim exemption, he is allowed to submit any materials he wishes to support that claim, *137and he is allowed to appeal the initial decision, again with extensive documentation and written argument. See 41 C.F.R. §§ 60-40.3(a), 60-60.4(d) (1983). These procedures were followed in this case, and they provide notice and the opportunity to present relevant evidence at a relevant time to responsible agency officials. Moreover, although the regulations require prompt administrative action, the time limits were stretched in this case. That circumstance, and the fact that both administrative tiers produced lengthy decisions, suggest that the decision makers were not totally oblivious of the companies’ objections.
Chief Judge Robinson argues that “[n]either the agency’s regulations nor its procedures offered the companies any guidance in focusing their presentations or documentation,” supra at 740. The first-level decision maker, however, wrote at length to support his conclusion that most of the materials are exempt from disclosure. Surely that explanation provided some focus for the companies’ appeal to the second-level decision maker.
He is also troubled by the fact that the second tier of review found additional materials non-exempt and that there was no administrative appeal from that decision available. See supra at 741. This hardly proves the procedures to be inadequate. Agency adjudication must become final at some point, and after that point aggrieved parties can resort to the courts. If the agency has not rationally supported its decision or has exceeded its lawful authority, the court can remand for further proceedings or reverse the agency outright. If the administrative record is inadequate for judicial review, the court can require supplementation by the agency in a variety of ways. See Camp v. Pitts, 411 U.S. at 142-43, 93 S.Ct. at 1244; Overton Park, 401 U.S. at 420-21, 91 S.Ct. at 825-26.
Finally, although an oral hearing might have facilitated the companies’ presentations, the absence of such a hearing does not render the procedures inadequate, for the procedures in Camp v. Pitts were found adequate without having provided such a hearing, see 411 U.S. at 138-40, 93 S.Ct. at 1243. See also, e.g., P & B Services, Inc. v. Cardenas, 525 F.Supp. 1289, 1292-93 & n. 16 (D.D.C.1981) (no oral hearing, but procedures adequate).
In short, although we might not describe the agency’s procedures as being the most effective or open, they were not closed, unfair, or otherwise inadequate to the task of developing a factual record, as well as a record of submitters’ objections, based upon which one could decide rationally whether material is exempt from disclosure. Cf. Upjohn, 681 F.2d at 483 (prescribed procedures were followed and adequate, even if informal). For this reason, we disagree with Chief Judge Robinson’s conclusion that de novo review was proper here under the APA.
Our conclusion that the District Court erred in not conducting its review based solely on the record that was before the OFCCP normally would lead us to vacate the court’s actions and remand to the District Court. Under the circumstances of this case, however, we find it appropriate to affirm the preliminary injunction. Our own review of the administrative record convinces us that it would have been well within the discretion of the District Court for it to have granted preliminary relief even had it confined its review to that record. Rather than delay further by remanding for the District Court to rehash the issues of a preliminary injunction, we will affirm the injunction and remand for further proceedings.
Because we find the agency’s factfinding procedures to have been adequate, our conception of the proceedings that should take place upon remand differs from Chief Judge Robinson’s. First, it is not necessary for the agency to develop new procedures before this case is allowed to progress. Second, we would leave to the District Court’s discretion the timing of any remand to OFCCP.
For example, the court may find it most appropriate to proceed to consider the merits of whether these materials are exempt. To do so, it may need to require OFCCP to supplement the administrative record. See Camp v. Pitts, 411 U.S. at 142-43, 93 S.Ct. *138at 1244; Overton Park, 401 U.S. 420-21, 91 S.Ct. at 825-26. Once the District Court has a proper record, if it finds that some or all of the materials are exempt from disclosure, the concerns expressed in part III of Chief Judge Robinson’s opinion would become acute. The District Court then would have to remand to OFCCP for the agency to exercise its discretion, with a statement of reasons, regarding disclosure of the material despite exemption.
Of course, upon remand the District Court is also free to proceed in any other manner it sees fit, consistent with both this opinion and the Supreme Court’s decisions in Camp v. Pitts and Overton Park. We have written separately to emphasize these points: (1) de novo review was inappropriate at the preliminary injunction stage (2) the proper standard of review — at the preliminary stage, when treating the merits of whether the materials are exempt, and when evaluating any agency decision to disclose exempt materials — is provided by 5 U.S.C. § 706(2)(A)-(D) (1982); (3) new agency procedures are not necessary; (4) the District Court may require OFCCP to supplement the record if the record does not now provide a sufficient basis for judicial review.