dissenting:
Today’s decision, with all respect, is at odds with fundamental principles of law which govern the sensitive relationship between the Article II and Article III branches of the National government. I am constrained, for the reasons which follow, to register my dissent.
I
Confronted with a well-publicized scandal 1 over alleged on-the-job misconduct by a number of Border Patrol agents stationed in Arizona, the INS Commissioner instructed the agency’s Office of Professional Responsibility (OPR), based in Washington, D.C., to complete an inquiry into the charges “as soon as possible.” J.A. at 79. High-level representatives of INS, including the top OPR official on the West Coast and four OPR investigators, thereupon descended on Tucson to get to the bottom of what had occurred. During the large-scale inquiry that followed, OPR investigators interviewed seven Border Patrol agents suspected of misconduct; all seven were allowed to have union representation at the interview.
In the event which generated this case, OPR also interviewed Border Patrol Agent Gregory Reed, who was not a suspect and who was not allowed union representation. At the beginning of that interview, Agent Reed expressed fear that his answers might lead to disciplinary action against him and that he should, therefore, be afforded union representation. The OPR investigators thereupon read into the transcribed record of the interview the promise that Reed’s statements would not be used against him in any disciplinary proceeding. True to that promise (and more), the INS never took any disciplinary action against Reed.
Thereafter, Local 2544 of the AFGE filed an unfair labor practice charge asserting a violation of the union’s statutory right to represent Reed at the interview. See 5 U.S.C. § 7114(a)(2)(B) (1982). In considering that charge, the FLRA expressly adhered to its settled view that § 7114(a)(2)(B)(i) applies only when “in light of [the] external evidence a reasonable person would decide that disciplinary action might result from the examination.” J.A. 259.2 The FLRA concluded that a reasonable employee in Reed’s position would not have feared disciplinary action after receiving a clear and express grant of immunity from OPR investigators who were undisputedly acting on behalf of the INS. J.A. at 259-260.3 In so concluding, *341the agency directly confronted the General Counsel’s primary contention, namely that a grant of immunity could never dispel a reasonable employee’s fear of discipline. J.A. at 258, 261. The FLRA flatly rejected this extraordinary argument as premised on an inapt analogy to a prior case holding that an employee who waived his Miranda rights did not thereby waive his right to union representation. Id. at 261. The only other issue even raised by the General Counsel before the FLRA was the purported lack of express statutory or regulatory authority for INS’s grant of immunity. Id. That argument was roundly dismissed on the ground that this sort of authorization was simply unnecessary. Id.
On appeal, the AFGE left lying in the dust the General Counsel’s bizarre argument that an employer’s grant of immunity can never serve as a defense to a charged violation of a union’s statutory right to represent an employee during an interview. See Brief for Petitioner at 23. Nor did AFGE advance the argument that the OPR investigators lacked apparently authority to grant immunity. See id. at 24 (expressly contending that the issue of apparent authority was irrelevant to this case). Instead, the AFGE founded its appeal on the novel legal theory that under estoppel doctrine a government employee must be shown proof of management officials’ actual authority to grant immunity before he or she can lawfully be interviewed without union representation. Id. at 24-29; Reply Brief for Petitioner at 3.
Although the court finds no error in the legal principles followed by the FLRA, it nevertheless reverses the agency on the asserted ground of a lack of substantial evidence in the record, despite the undisputed evidence of a clear and express grant of immunity. The court justifies its remarkable decision on the ground that the record contains “evidence of several circumstances that would make a reasonable employee continue to fear disciplinary action despite the ‘immunity’ proffer.” At 725. Having identified evidence opposed to the FLRA’s decision, the court facilely concludes that reversal is required without even examining the evidence favorable to the FLRA’s decision.4 This approach, with all respect, turns the substantial evidence rule on its head. Contrary evidence requires reversal only when the court “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
The court’s cavalier disregard for the abundant evidence supporting the FLRA’s decision is manifest. For example, the court asserts that it could affirm only by adopting the extreme position “that whenever an employee is taken into a room by two unfamiliar individuals and told that he has ‘immunity,’ the employee must believe them and forfeit his right to union representation.” At 727. This is a truly extraordinary proposition given the undisputed facts before us. Agent Reed fully well knew that he was not confronting faceless gnomes from the bowels of some distant, unknown bureaucracy. Far from it. It is undisputed that Reed had been ordered by his supervisor to report to sector headquarters to talk to the OPR representatives; thus, to put it gently, Reed could reasonably have been expected to know that the “two unfamiliar ... interrogators,” At 727, were OPR representatives acting on behalf of the INS, not imposters. The court also turns its face from the undisputed fact that the grant of immunity was *342not mumbled in passing; rather, it was for- . mally read into the taped record of the interview and duly recorded. ■
Most important, the court neglects to consider evidence in the record (and readily available information from the public record) demonstrating that a reasonable INS employee in Reed’s position would have known that the OPR interviewers were acting on behalf of the highest level of INS management. In my judgment, any reasonable INS employee would know that OPR was and is one of only a handful of INS offices reporting directly to the Commissioner himself. See J.A. at 254; 1981 INS Ann.Rep. vii; cf. 8 C.F.R. § 100.2(a) (1985); C. Gordon & H. Rosenfield, Immigration Law and Procedure 1-46 (1985). Reed could also have been expected to know that OPR investigates only the more serious allegations of internal misconduct such as “civil rights violations,” whereas “[ajllegations of a less serious nature are referred to INS regional offices for investigation and appropriate action.” 1981 INS Ann.Rep. at 2-3; see J.A. at 190-191 (INS Operations Instructions). In fact, Agents Reed and Foust both testified that it was quite rare for INS to have an OPR investigator (as opposed to some relatively low-level, non-OPR agency employee) personally conduct an internal investigation at the Tucson station. See J.A. at 21-22, 53. The record further reveals that it was unprecedented for such a ‘ large group of OPR investigators to swarm upon Tucson. Id. at 22.
Given the manifest importance of this investigation to the Commissioner of INS, see supra page 1 and note 1, the apparent authority of OPR to represent the Commissioner himself in conducting the investigation, and the clear, express and memorialized grant of immunity made by OPR to Agent Reed, the record plainly contains substantial evidence to support the conclusion that a reasonable employee in Reed’s position would not have doubted the validity of his immunity. And nothing more is needed to sustain the agency’s result here. The FLRA need not measure the “reasonable person” standard by reference to some modern-day Doubting Thomas, skeptical and suspicious of the exercise of authority by management as to a matter falling plainly within management’s legitimate interests and concern.
The contrary evidence cited by the court falls far short of “clearly precluding]” the FLRA’s interpretation of the record. Universal Camera, supra, 340 U.S. at 490, 71 S.Ct. at 465. The court points primarily to the fact that after union representative Foust left the area where Reed was being interviewed, Deputy Chief Patrol Agent Barnette opined to Foust that OPR lacked authority to grant administrative immunity. It is undisputed that Agent Reed did not even hear Barnette’s ill-founded statement, if at all, until after the interview. Because the focus of § 7114(a)(2)(B) is on the risk of discipline reasonably perceived by the employee at the time o/the investigatory interview, the court’s reliance on Barnette’s statement is quite misguided. See at 729 (recognizing that events subsequent to INS’s interview of Reed have no bearing on issue of whether § 7114(a)(2)(B) was violated in this case).
Even if Deputy Barnette’s odd statement were relevant, which it is not, that statement scarcely compels the conclusion that Reed would have reasonably feared that Deputy Barnette could override an OPR decision to grant immunity. An INS officer charged with the weighty responsibility of enforcing this Nation’s immigration laws could certainly be expected to know that OPR’s level in the INS hierarchy was considerably higher than that of a local Deputy Chief Patrol Agent. As I alluded to before, the head of OPR is one of a handful of individuals on the INS Commissioner’s “immediate staff.” 1 C. Gordon & H. Rosenfield, supra, at 1-44; see J.A. at 254; 1981 INS Ann.Rep. vii. On the other hand, a Deputy Chief Patrol Agent is at least five levels removed from the top of the INS management ladder. See 8 C.F.R. § 100.2 (1983); 1981 INS Ann.Rep. vii; 1 C. Gordon & H. Rosenfield, supra, at 1-44. That is a long, long way from parity with OPR. Thus, the court errs in assert*343ing without support — and indeed in contravention of elementary organizational facts — that OPR and the Deputy Chief Patrol Agent represent “co-equal offices within management.” At 727.
The record likewise provides no basis for the court’s implausible assumption that INS vests an humble Deputy Chief Patrol Agent situated out in the provinces with authority to override a grant of immunity by OPR. When the FLRA casually observed that “[disciplinary measures are determined by the Deputy Chief Patrol Agent,” J.A. at 254, it was doing nothing more than noting the fact that INS disciplinary measures are imposed at the local level. See J.A. at 19, 55, 85. Of course, I would assume the obvious, that just as in most organizations, neither the Commissioner of INS nor the Director of OPR would personally fire or suspend insubordinate INS employees far down the hierarchial ladder. Unsurprisingly, the record contains no evidence supporting the farfetched proposition that a Deputy Chief Patrol Agent out at some frontier outpost could veto discipline decisions made by high-level INS management. If that is so, the INS is, shall we say, wildly egalitarian in a manner previously unknown in the annals of public administration.
II
The court, with all respect, likewise strays beyond permissible bounds of legitimate judicial review when it construes the language of § 7114(a)(2)(B)(i) in disregard of the settled interpretation embraced by the FLRA and previously upheld by this court. See AFGE v. FLRA, 778 F.2d 850, 856, 861 (D.C.Cir.1985); Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1162 n. 121 (D.C.Cir.1981) (“If the FLRA’s construction of the statute is reasonably defensible, we are not free to reject it merely because we might decide differently____”), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). See generally Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 794 (1984). Although the FLRA has faithfully adhered to that test in the past and expressly followed it in this case as well, the court deems it appropriate to construct a second test that, as best as I can understand it, evaluates the risk of discipline from the perspective of the omniscient employee at the time of the interview. At 724-25, 727-29. While conceding that the FLRA’s opinion never clearly articulates this test, the court maintains that the FLRA implicitly applied this extraordinary standard when it considered the issue of whether statutory or regulatory authority existed to legitimate the grant of immunity. Id. at 724-25 & n. 8.
A court more inclined to the sound principle that “the interpretation of the FLMR rests in the first instance with the FLRA,” id. at 724 n. 8, would be less ready to reach the conclusion that the FLRA’s discussion of the issue of statutory authorization, raised in the first instance by the General Counsel, was irreconcilable with the FLRA’s settled interpretation of § 7114(a)(2)(B)(i). A more deferential — and more plausible — view is that the FLRA was, rather, responding to the possible argument that an employee in Agent Reed’s position could reasonably doubt whether the INS generally had power to grant administrative immunity. Cf. J.A. at 59 (“Mr. Foust [the union local president] and I had never heard of [administrative immunity.]”) (statement of Agent Reed); id. at 28 (“I was completely unfamiliar with the right of management to afford a person administrative immunity.”) (statement of Mr. Foust).
Analyzing the issue of INS’s actual authority to grant immunity in light of the FLRA’s settled construction of § 7114(a)(2)(B)(i), I would sustain the FLRA's conclusion that “[t]he right to grant immunity is necessarily implicit and inherent” in the INS’s undisputed power to supervise its own employees. J.A. at 261. See also 8 U.S.C. § 1103 (1982). The power to supervise obviously encompasses both the power to discipline and the power not to discipline. An INS employee who rea*344sonably knows that management could discipline him could not, therefore, reasonably doubt the power of management to grant him administrative immunity.
Fearful that the FLRA’s settled interpretation of § 7114(a)(2)(B)(i) would fail adequately to protect federal employees “when the agency employer has convincingly lied or misstated the fact of immunity in order to dupe the employee into a false sense of security,” Maj.Op. at 19 n. 12, the court addresses the issue whether the OPR officials were, in fact, vested with authority to grant Agent Reed immunity. In doing so, the court, first, denies the FLRA the opportunity to address this alleged problem of statutory construction and, second, ignores the fact that not a shred of evidence is to be found in this record that INS was trying to trick or dupe Reed by granting him administrative immunity. Agent Reed's unwarranted dyspepsia in Tucson scarcely provides a fitting occasion for laying down sweeping rules to vouchsafe rights which the court deems threatened in the abstract.
Even if the issue of the validity of the immunity conferred on Agent Reed were appropriately before this court, I would uphold the FLRA’s decision. The record reveals that Mr. Dobbs, the INS official who had responsibility for all of OPR’s West Coast operations and who reported directly to the head of OPR,5 personally supervised the investigation on the scene and personally authorized the OPR investigators to grant immunity to Reed. J.A. at 79-80. The court, however, does not even consider the possibility that Mr. Dobbs’ high-level position is substantial evidence of his authority to grant immunity on behalf of the INS.6 ■ At 728. This, with all respect, is quite wrong.
It cannot reasonably be concluded that INS’s practice of granting immunity was unlawful absent a formal delegation of authority from the Commissioner. It has been so well-established in our law so as not — until today — even seriously to be questioned that practices concerning’internal agency matters (such as the conduct and duties of employees) may lawfully develop as a matter of department custom and “need not be promulgated in any set form, nor in writing.” Haas v. Henkel, 216 U.S. 462, 480, 30 S.Ct. 249, 254, 54 L.Ed. 569 (1910); see also United States v. Macdaniel, 32 U.S. (7 Pet.) 1, 13-14, 8 L.Ed. 587 (1833) (“To attempt to regulate, by law, the minute movements of every part of the complicated machinery of government, would evince a most unpardonable ignorance on the subject____ Hence, of necessity, usages have been established in every department of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits.”). Against this formidable backdrop of venerable learning, the court is forced to concede that this record contains substantial evidence of an established INS practice of granting administrative immunity. At 728; see also J.A. at 76-78, 228.
Ill
Perhaps uncomfortable with grounding its decision on the irrelevant testimony of Deputy Barnette and a novel interpretation of § 7114(a)(2)(B)(i), the court also holds that “[wjhen an agency-employer chooses to confer immunity on an ad hoc basis without any formal policy or procedure, it doe’s indeed run a ‘risk’ that an employee may reasonably fear disciplinary action.” At 727. But as we have seen, the grant of immunity in this case was made by high-level INS representatives during the course of an “extremely serious” OPR investigation and in a highly formalized *345setting. J.A. at 23 (testimony of union representative Foust). Thus, the court’s concern with the lack of a general INS immunity policy has nothing to do with the issue whether INS’s interview of Reed violated AFGE’s statutory right to representation. Nor does the court identify any other federal statute or regulation that even arguably requires the INS to follow a formal policy or procedure when it decides not to institute disciplinary action against one of its own employees for possible misconduct. By requiring, in practical effect, an agency to follow judicially-imposed guidelines before it may question one of its own employees, the court strays into expressly forbidden terrain, for the judiciary is plainly wanting in power to impose procedural requirements with respect to an agency decision not to enforce an internal personnel rule.
Just last Term the Supreme Court reminded us “that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, - — ■ U.S. ——•, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985) (citations omitted). In Chaney, the Court identified several reasons why it is for Congress and not the judiciary to establish guidelines, if any, that agencies must follow when they decide not to prosecute or enforce. First, an agency’s exercise of its enforcement powers often requires a complicated balancing of agency priorities, a balancing that courts are ill-suited to secondrguess. Second,. when an agency decides not to exercise its coercive powers over an individual, less need exists for judicial oversight to protect individual rights. Finally, an agency’s declination to take disciplinary action resembles a prosecutor’s decision not to indict — a decision long regarded as immune from judicial review. Id.
Today’s holding — that it is unreasonable for INS to grant administrative immunity in an ad hoc fashion — is utterly inconsistent with Chaney. The INS is manifestly better-equipped than the least dangerous branch to decide whether its management would be better served by a formulated policy of immunity made known to all employees (as this court would have it) or by a less formal approach tailored to the individual circumstances of each internal investigation (as the INS would have it). Moreover, it is unnecessary for this court to reach out to protect INS employees against arbitrary agency decisions not to prosecute them for job misconduct for the obvious reason that the INS’s grant of administrative immunity does not infringe on the rights of any INS employees. Cf. Morton v. Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974) (suggesting that when agency action will “affect substantial individual rights and obligations” it may be improper for the agency to proceed on an ad hoc basis).
The interference wrought by today’s decision with INS’s case-by-case approach (or, as the majority would style it, the agency’s ad hoc approach) to granting administrative immunity is, to be sure, different from the judicial interference struck down in Chaney. But the difference is singularly unhelpful in that the court’s interference here is even more questionable than the judicial intrusion unanimously invalidated by the Supreme Court in Chaney. There, the FDA had refused to take action in regard to an asserted public health problem (albeit, to be sure, in rather unorthodox circumstances); here, the INS has merely “decline[d] to seek penalties against an individual for past conduct.” Chaney, supra, 105 S.Ct. at 1665 (Marshall, J., concurring in the judgment). That is to say, INS’s action here is even more akin to decisions traditionally made by prosecutors with absolute discretion. Id; see also Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966). What is more, the agency action in Chaney involved substantive, statutory policy, whereas the agency action here involved internal personnel policy, explicitly exempted from judicial review under the APA. See 5 U.S.C. §§ 553(a)(2), 554(a)(2) (1982); Stewart v. Smith, 673 F.2d 485, 496 (D.C.Cir.1982). *346Finally, by in effect prescribing the procedural format for INS to follow when granting immunity, the court runs afoul of “the established principle that administrative agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’ ” FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940)), quoted in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543, 98 S.Ct. 1197, 1211, 55 L.Ed.2d 460 (1978).
Today’s decision squares neither with law nor common sense. It ignores elementary truths about agencies, in which, like courts and every other form of institution ordained by mere mortals, not every matter of operational moment has been formalized and written up in some duly promulgated regulation or manual. Although I for one doubt It, some might be inclined to the quaint view that agencies, like courts, would be improved by reducing every nook and cranny of practice and procedure to writing and widely disseminating the resulting floodtide of materials to all its employees. But nothing in law or logic requires us to so order our own judicial house and nothing in law permits us to require agencies to conform to Utopian visions of a universe of sophisticated and formalized agency operations and procedures.
. See J.A. at 21 (The reports of misconduct were "in the papers for approximately a week or two weeks" and prompted an investigation by Senator Dennis DeConcini of Arizona.); 54 (There had been "news coverage on television, newspapers, [and] radio, as to the allegations" of misconduct by Border Patrol Agents.); 79 (The reports of misconduct were "receiving much media attention.”).
. See also IRS, L.A. District Office, 15 F.L.R.A. 626, 650-51 (1984); Department of the Navy, Norfolk Naval Base, Norfolk, Va., 14 F.L.R.A. 731, 745-46 (1984); Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 F.L.R.A. 473, 485 (1981); IRS, Washington, D.C. and NTEU, 4 F.L.R.A. 237 (1980), aff’d sub nom. IRS, Washington, D.C. v. FLRA, 671 F.2d 560, 563 (D.C.Cir.1982).
.The FLRA relied on both IRS, Washington, D.C. v. FLRA, 671 F.2d 560, 563 (D.C.Cir.1982) (upholding FLRA finding that employee had reasonable fear of discipline where employee *341was not "assured that he would not be subject to discipline as the result of the interview.”) and Spartan Stores, Inc. v. NLRB, 628 F.2d 953, 955 (6th Cir.1980) (holding that reasonable employee could not fear discipline from employer interview after receiving oral assurance from his supervisor that "nothing would happen to him as a result of the meeting").
. The court concedes only that the FLRA decision is supported "by the fact that the OPR investigators told Reed that he was only a witness and not the subject of an investigation.” At 726. Having assured itself that "this circumstance alone” did not provide substantial evidence for the FLRA's determination, the court "consequently" reversed. Id.
. J.A. at 72. The head of OPR reports to the Commissioner of the INS, id. at 254, and thus Mr. Dobbs was exactly two levels removed from the head of this large agency with worldwide operations.
. The court seeks to justify its lack of attention to Mr. Dobbs' inherent authority to grant immunity on the ground that he "certainly did not rely on any inherent power of the Commissioner.” At 728. The record, however, reveals that Mr. Dobbs did rely on his inherent powers as a high-level representative of the Commissioner. J.A. at 86.