concurring in the judgment:
I admit at the outset the persuasive force of the majority’s opinion — a force derived, I think, from a comparison of the most obvious facts of this case with those of Public Citizen v. United States Department of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Public Citizen interpreted the word “utilized” so as to exclude, from the Federal Advisory Committee Act’s (“FACA’s”) reach, the Justice Department’s use of a committee of the American Bar Association whose only mission was to advise on appointments to the federal judiciary. In concluding that Congress did not intend to subject the ABA Committee on the Judiciary to FACA’s requirements, the Court acknowledged that what “tipEped] the balance decisively against FACA’s application,” id. at 465, 109 S.Ct. at 2572, was the “cardinal principle” that where “a serious doubt of constitutionality is raised, ... the Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Id. at 465-66, 109 S.Ct. at 2572. Here, to achieve a similar end, we are asked only to stretch the phrase “officer or employee of the Federal Government” far enough to include a person who is greeted like a head of state, guarded by the Secret Service, and funded from the public fisc. On first appearances, Public Citizen would seem to support both the majority’s result and the reasoning used to reach it.
If this case is to be distinguished from Public Citizen, it is not because of a lack of gravity in the constitutional issues it presents. In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (“Nixon i”), and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (“Nixon II”), the Supreme Court recognized a constitutionally grounded doctrine of executive privilege which, holds that Presidential communications are presumptively privileged against disclosure:
Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process----
A President ... must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.
Nixon I, 418 U.S. at 705, 708, 94 S.Ct. at 3106, 3107. The Court found that this privilege extends
to communications in performance of a President’s responsibilities ... and made in the process of shaping policies and making decisions.
Nixon II, 433 U.S. at 449, 97 S.Ct. at 2793 (quoting Nixon I, 418 U.S. at 708, 711, 713, 94 S.Ct. at 3107, 3109, 3110) (internal quotation marks, brackets, and citations omitted). And it set forth standards for evaluating intrusions on privileged communications:
[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote *227objectives -within the constitutional authority of Congress.
Id. 433 U.S. at 443, 97 S.Ct. at 2790 (citations to Nixon I omitted).
We confront in this case a task force consisting of the President’s closest advisors that was established to address a paramount political priority. Because it included his wife — by all accounts, a person whose policy advice he has relied on throughout his public life — the Task ■ Force on National Health Care Reform arguably was bound by law to conduct its proceedings in public. Given these circumstances, the considerations animating the Presidential privilege, like the President’s claim of privilege itself, are before us in pointed fashion. My colleagues, sensing the weight of these issues, hold that we may avoid addressing them through “prudent use” of Public Citizen’s “maxim of statutory construction.” Maj.Op. at p. 220, I cannot agree.
I begin with the axiom that in interpreting a statute, a court must ascertain the will of the enacting Congress. Here I admit to detecting something of an implicit argument in the Government’s pleadings before this court. To the extent that it may be discerned, this argument begins with an assumption that Public Citizen’s result could not have been reached through genuine interpretation — interpretation that is consistent with the will of Congress — and ends with the conclusion that Public Citizen authorizes courts to avoid constitutional issues by ascribing implausible meanings to the most unambiguous language. The suggestion, I admit, is tempting. But it is also barred by the very decision on which the Government places its principal reliance. Public Citizen states explicitly that courts “cannot press statutory construction to the point of disingenuous evasion, even to avoid a constitutional question.” 491 U.S. at 467,109 S.Ct. at 2573 (internal quotation marks and citation omitted).
The weakness of the position that FACA may be interpreted to exclude the Task Force is suggested by the Government’s vacillation on the question of Mrs. Clinton’s status. Before the district court, the Government argued that the Task Force was not subject to FACA because Mrs. Clinton was the functional equivalent of a federal employee. In its opening brief here, it argued that she was either an officer or an employee without saying which. On reply, it said explicitly that Mrs. Clinton was an “officer.” And at argument, it retreated to ambiguity and again refused to categorize her. In fact, the Government’s only consistent position has been that FACA is not subject to those statutory definitions of “officer” and “employee” that most logically apply to it.
FACA appears in the appendix to Title 5 of the United States Code. Sections 2104 and 2105 of Title 5 contain the following definitions:
§ 2104. Officer
(a) For the purpose of this title, “officer”, except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is—
(1) required by law to be appointed in the civil service by one of the following acting in an official capacity—
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office____
§ 2105. Employee
(a) For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—
(1) appointed in the civil service by one of the following acting in an official capacity—
(A) the President;
*228(B) a Member or Members of Congress, or the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee, under this section;
(E) the head of a Government controlled corporation; or
(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position—
5 U.S.C. §§ 2104, 2105 (emphasis added).
The common denominator of these provisions is the requirement that both officers and employees be “appointed in the civil service.” In the Executive Branch, the civil service consists of (1) positions requiring Senate confirmation, (2) the “Senior Executive Service,” (3) the “competitive service,” and (4) “positions which are specifically excepted from the competitive service by or under statute.” 5 U.S.C. § 2102(a). Mrs. Clinton does not wear any of these labels. See, e.g., 5 U.S.C. § 3132(a)(2) (defining “Senior Executive Service position”). The Government’s (and the majority’s) strategy, then, is to argue that she need not satisfy the section 2104 and 2105 definitions because they do not apply to FACA. Specifically, because FACA has been codified in an appendix to Title 5, not in the title proper, the Government contends that the sections do not govern the meaning of “officer” and “employee” as used in the definition of “advisory committee.” For several reasons, I disagree.
First, there is the plain meaning of the statutory language. An appendix to a title of the United States Code necessarily qualifies as a part of that title. If it did not, then the appendix would be part of no title whatever and would be an appendix to the Code as a whole. Yet FACA appears in the Code under the banner, “Title 5, Appendix.” Because sections 2104 and 2105 state plainly that they apply “[f]or the purpose of’ Title 5, and because FACA is a part of that title, the definitions apply to FACA.
Second, Congress surely knew that FACA would be codified under Title 5. The same statute that adopted sections 2104 and 2105 also stipulated that Title 5 be captioned: “Government Organization and Employees.” Pub.L. No. 89-554, 80 Stat. 378, 408-09 (1966). A glance at the captions of the remaining 49 titles in the Code confirms that Title 5 is the only one under which FACA could have been codified.
Third, there are the practical considerations. The Ethics in Government Act, codified alongside FACA in Title 5’s appendix, requires financial disclosures from “each officer or employee in the executive branch” who meets certain criteria. Ethics in Government Act of 1978, 5 U.S.C.App. 6, §§ 101(a), 101(f)(3) (1991 Supp.). FACA imposes open-meeting and other requirements on committees not “composed wholly of full-time officers or employees of the Federal Government.” 5 U.S.C.App. 1, § 3(2) (1988). And, although each of those statutes contains a sizable definitional section, neither defines either “officer” or “employee.” See 5 U.S.C.App. 1, § 3 (1988); 5 U.S.C.App. 6, § 109 (1991 Supp.). The Government tells us that those terms are intentionally left undefined even though Congress took the trouble, in those statutes, to define terms that are of far less significance. See, e.g., 5 U.S.C.App. 2, § 3(4) (1988) (“The term ‘Presidential advisory committee’ means an advisory committee which advises the President”); 5 U.S.C.App. 6, § 109(3) (1991 Supp.) (“ ‘designated agency ethics official’ means an officer or employee who is designated to administer the provisions of this title within an agency”). But without definitions of “officer” and “employee,” neither statute could be sensibly administered. The better explanation for the absence of these definitions is that their repetition in FACA and the Ethics in Government Act would have been redundant.
Finally, there is the apparent reasoning behind FACA’s location in Title 5’s appendix. The United States Code is published pursuant to 1 U.S.C. §§ 201-13 (1988). That law *229requires the codification of new laws in annual Code supplements and permits the publication of an entirely new Code every five years. See id. § 202. Thus, the current United States Code and supplement contain all laws of the United States that are “general and permanent in their nature.” Id. § 204(a). As of 1988, ten of the fifty U.S.C. titles contained an appendix. See 5, 10, 11, 18, 26, 28, 40, 46, 49, 50 U.S.C. (1988). Some statutes have been placed in appendices because, while considered more than temporary, they are viewed as less than permanent additions to the Code. See 40 U.S.C.App. (Appalachian Regional Development Act of 1965). Other statutes have been relegated to appendices because they were not enacted directly by Congress. See 11 U.S.C.App. (Bankruptcy Rules and Official Forms as promulgated by Supreme Court pursuant to 28 U.S.C. § 2075). With respect to Title 5, Congress has divided it into three parts: “The Agencies Generally” (Part I), “Civil Service Functions and Responsibilities” (Part II), and “Employees” (Part III). See Pub.L. No. 89-554, 80 Stat. 378 (1966), as amended by Pub.L. No. 96-54, § 2(a)(1), 93 Stat. 381 (1979). An appendix to Title 5, then, is the natural place to codify statutes that relate to “Government Organization and Employees” but do not pertain to “The Agencies Generally,” “Civil Service Functions and Responsibilities,” or “Employees.” As of 1988, five acts, including FACA, had been codified in Title 5’s appendix. None of these fits within any of the three pigeonholes into which the main body of the title has been divided.
As against all of this — the statute’s plain language, the imputed knowledge of its draftsmen, the practical need for Title 5’s definitions to apply to its appendix, and the apparent reasons for FACA’s placement there — the Government can offer a bare shred of legislative history. It points out that the Senate version of FACA explicitly incorporated the Title 5 definitions of “officer” and “employee,” but that these were dropped at conference. The question, of course, is whether the conferees discarded the definitions because they were redundant (as FACA was destined for codification under Title 5), or because they wished the definitions not to apply to FACA.
The evidence on this issue consists of statements from the reports of the Senate Committee on Government Operations and the House-Senate Conference Committee. Referring to the section of the Senate bill that incorporated definitions to be found in the main body of Title 5, namely, those for “agency” (5 U.S.C. § 551(1)), “officer” (5 U.S.C. § 2104), and “employee” (5 U.S.C. § 2105), the Senate Report stated only that these three definitions had “been chosen to give the broadest interpretation to the coverage commensurate with generally accepted principles of law.” S.Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). The Conference Committee Report merely noted that “[t]he conference substitute deletes the Senate amendment definitions of ‘officer’ and ‘employee.’” H.R.Conf.Rep. No. 1403, 92d Cong., 2d Sess. 9 (1972). The definition of “agency,” however, was retained.
The Government infers, from the deletion of two of the Senate definitions and the retention of the third, that the conferees found the definitions of “officer” and “employee” inapplicable to FACA. There is a far more plausible explanation. As sections 2104 (“officer”) and 2105 (“employee”) were applicable to all statutes codified under Title 5, they were superfluous. The definition of “agency,” by contrast, appears under the heading, “For the purpose of this subchapter — ,” 5 U.S.C. § 551 (emphasis added), and therefore would not apply to FACA unless specifically incorporated into that Act.
Even if we could disregard the definitions found in Title 5, we would still be compelled to attach meanings to the words “officer” and “employee” that Congress might reasonably have had in mind. To this end, I have examined other sources for definitions of these terms. At the outset, I dismiss the possibility that Mrs. Clinton might be considered an employee. In these proceedings, the Government has not attempted to argue that Mrs. Clinton is an employee for purposes of FACA — no doubt because her services are unpaid. Cf. Black’s Law Dictionary 471 (5th ed. 1979) (defining employee as “[o]ne who works for an employer; a person working for salary or wages”). And while the majority *230does assert that Mrs. Clinton “could still be regarded as an ‘employee’” under FACA, Maj.Op. at p. 214, it too lacks an argument in support of the proposition. In particular, it ignores the fact that, while subsections (a) and (b) of 3 U.S.C. § 105 explicitly “authorize[ ]” the President “to appoint and fix the pay of [White House] employees,” subsection 105(e), the statutory acknowledgment of the First Lady’s role, is carefully phrased so as not to authorize her appointment as an employee or any remuneration for her services. An “unpaid employee” is an oxymoron, although an “unpaid officer” is not. FACA’s strictures can be avoided, then, only if it can credibly be argued that Mrs. Clinton is an officer of the Federal Government. I can find no such argument.
To begin with the beginning, the Constitution imposes certain requirements on those who are to serve as officers of the United States. Such persons must be appointed by the President with the consent of the Senate unless Congress, by law, has vested the power of appointment “in the President alone, in the Courts of Law, or in the Heads of Departments,” U.S. Const, art. II, § 2, cl. 2. Furthermore, all officers must take an oath to support the Constitution. Id., art. VI, cl. 3. Congress has enacted laws to implement these requirements. See, e.g., 5 U.S.C. § 3331 (officers of the United States required to swear an oath); 5 U.S.C. § 2906 (officers’ oath to be “preserved”); 5 U.S.C. § 2902 (“officer[s] appointed by the President” must have commissions made out and sealed by the Secretary of State); 5 U.S.C. §§ 3333, 7311 (anyone who accepts either “office or employment in the Government of the United States” required to swear their loyalty by affidavit). We have received no indication that any of these requirements have been met with regard to Mrs. Clinton.
More generally, an officer implies an office, and an office implies duties. Title 1 of the United States Code defines “officer” by reference to an “office” with “duties” — “ ‘officer’ includes any person authorized by law to perform the duties of the office.” 1 U.S.C. § 1. And the Supreme Court has interpreted “officer” similarly with reference to the Constitution. In Bumap v. United States, 252 U.S. 512, 516, 40 S.Ct. 374, 376, 64 L.Ed. 692 (1920), the Court reasoned: “Whether the incumbent is an officer or an employee is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto.” Bumap held that a “landscape architect” was an employee, not an officer, because “[t]here [was] no statute which creates an office of landscape architect ... nor any which defines the duties of the position,” id. at 517, 40 S.Ct. at 377, and because “[t]here [was] no statute which provides specifically by whom the landscape architect ... shall be appointed.” Id.
The undoubted value of the services that the wives of Presidents have rendered their husbands and their country notwithstanding, it cannot be said that they have occupied an office with duties. The provision of the U.S. Code on which the majority relies, 3 U.S.C. § 105(e), is carefully phrased so as not to name a position or prescribe duties a President’s spouse is to fulfill. In fact, section 105(e), strictly speaking, does not even authorize a First Lady to assist the President; rather it authorizes federal employees to assist the First Lady, and, in the course of doing so, acknowledges the assistance that First Ladies commonly render their spouses. In sum, Mrs. Clinton carries none of the indicia of a federal officer. She has neither been appointed to nor confirmed in the position of “First Lady,” she has taken no oath of office, and she neither holds a statutory office nor performs statutory duties.
Having searched the U.S. Code and the Government’s briefs in vain for definitions of “officer” that might give aid and comfort to the Government, I conclude that under any fair interpretation of the term, Mrs. Clinton is not an officer of the United States. But to complete this tour through the statute books, I note that section 105(e) does not, as the Government and the majority contend, require a finding that Congress has acknowledged that a President’s spouse performs the duties of an officer. Another direct congressional statement on the subject of the First Lady’s duties appears in the Anti-Nepotism Act. That Act declares that public officials (expressly including “the President”) may *231not employ relatives (expressly including a “wife”) in “a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control.” 5 U.S.C. § 3110(a), (b). The use of the definite article in the phrase “the agency ,in which he is serving” appears to imply that every “public official” belongs to some agency and that their relatives may not be employed in that agency, whatever it happens to be. Moreover, as a matter of policy and consistency, the restrictions on the President under the Anti-Nepotism Act must be viewed to be as broad as the Executive Branch: It is inconceivable that Congress, in combatting nepotism, intended to forbid Mrs. Clinton’s service as Attorney General while permitting her appointment as National Security Advis- or. Viewed purely as a matter of congressional intent, the argument that the Anti-Nepotism Act applies only to the Departments and not to the White House, see Maj. Op. at p. 905, is a weak one. As a result, any gravitational pull exerted in the direction of congressional acceptance of a President’s spouse as a “de facto officer” attributable to section 105(e) is overwhelmed by the opposite force exerted by the Anti-Nepotism Act.
One final consideration. Although we may assume that, when drafting FACA, Congress gave no thought to the possibility that a President might appoint his spouse to an advisory committee, we may not assume that it failed to contemplate the relationship between FACA and the legal obligations and sanctions imposed on officers and employees of the Federal Government.
As one reviews the affidavit filed with the district court by Ira Magaziner, Senior Ad-visor to the President for Policy Development, one is struck by the fact that every member of the Task Force and Interdepartmental Working Group, but one, was subject to one or more of the statutes that Congress has enacted to ensure the proper conduct of members of the Federal Government — the “insiders,” as the Government describes those who qualify as “full-time officers and employees” within the meaning of FACA. These laws impose burdensome ethics requirements. See, e.g., Ethics in Government Act of 1978, 5 U.S.C.App. 6, § 101(f)(3) (1991 Supp.) (applying financial disclosure requirements on all higher paid “officers and employees” in the Executive Branch); id. §§ 501(a)(1), 505(2) (1991 Supp.) (applying outside income limitations on all higher paid officers and employees except “special government employees”); 18 U.S.C. § 205 (1991 Supp.) (prohibiting any “officer or employee” from representing outsiders in “matters affecting the Government”); id. § 207 (prohibiting anyone who formerly was an “officer or employee” from participating in certain governmental proceedings and decisions after leaving government employment); id. § 208 (prohibiting an “officer or employee” from “participating] personally” in a matter affecting “a financial interest”); 5 U.S.C. § 7324 (1988) (prohibiting an “employee in an Executive agency” from taking “an active part” in political campaigns). And even though the Government argues that the Interdepartmental Working Group was not an advisory committee within the meaning of FACA, Mr. Magaziner nevertheless took pains to stress the fact that every member of and consultant to the Group — whether a regular or special government employee, whether working full time or part, for pay or without — was required to file a financial disclosure statement and to comply with other requirements of these laws. See Magaziner Affidavit, Gov’t App. at 41-43.
These requirements, then, appear as a signal distinction between what would normally be considered to be “inside” and “outside” members of advisory committees. In fact, this distinction — the legal obligations and sanctions imposed on officers and employees of the Government as opposed to private citizens — undoubtedly provides a substantial part of the justification for the very different requirements imposed by FACA on committees that are composed exclusively of federal officers and employees and those that are not. In enacting FACA, Congress found that “[o]ne of the great dangers in the unregulated use of advisory committees is that special interest groups may use their membership on such bodies to promote their private concerns.” H.R.Rep. No. 1017, 92 Cong., 2d Sess. 6 (1972), U.S.Code Cong. & Admin.News pp. 3491, 3496. Because committees not composed exclusively of federal *232officers and employees have members who are not required to foreswear their private associations and insulate themselves against potential conflicts of interest, FACA requires, as an alternative check, that their deliberations be conducted in the open.
When the majority states that we “need [not] consider whether Mrs. Clinton’s presence on the Task Force violates ... any conflict of interest statutes,” Maj.Op. at p. 221 n. 10, it indicates that we have not been presented with claims under these statutes that call for adjudication. The question remains, however, whether Congress, if it had ever considered that the President’s spouse might be appointed an official member of a Presidential advisory committee, would have labelled her an “officer or employee” within the meaning of FACA. To put it another way, could Congress have intended that Mrs. Clinton, alone of the twelve members of the Task Force and 340 members of the Working Group, would be. entirely exempt from the reach of ethics laws that Congress has imposed on the President himself? I think not.
In visiting these sundry provisions, I doubt I have said very much with which my brethren in the majority would disagree. Our disagreement centers, I think, not on Congress’s intent in enacting the relevant statutes, but on the lens through which we must view that intent in this particular case. The majority argues (1) that construing the phrase, “officers and employees,” to exclude Mrs. Clinton would give rise to weighty constitutional issues, Maj.Op. at p. 220; (2) that the Public Citizen Court avoided deciding similar issues by embracing “an extremely strained construction of the word ‘utilized,’ ” Maj.Op. at p. 216; (3) that “[i]t is reasonable ... to construe section 105(e) as treating the President’s spouse as a de facto officer or employee,” Maj.Op. at p. 214; and hence (4) that the phrase “full-time officer or employee of the government” must a fortiori be read to apply to Mrs. Clinton, Maj.Op. at p. 221. I remain unconvinced.
First, I do not think that section 105(e) can reasonably be read to create an officer or employee, either de facto or otherwise; and even if it could, I do not think we could avail ourselves of such a reading in this case. I noted above that section 105(e) has been carefully phrased so as not to recognize an office, an officer, or an employee. But equally important, I know of no case in which the Supreme Court has saved one provision from constitutional difficulty by liberally construing another, entirely unrelated provision. In Public Citizen itself, as well as in every case cited in Public Citizen in which the Court avoided a constitutional challenge, the Court sidestepped the constitutional claims presented through an interpretation of the statute under attack. See Public Citizen, 491 U.S. at 465-66, 109 S.Ct. at 2572 (citing cases); see also id. at 465, 467, 109 S.Ct. at 2572, 2573 (avoiding a constitutional challenge to FACA by construing FACA § 3(2)); see also, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 588, 108 S.Ct. 1392, 1397, 1404, 99 L.Ed.2d 645 (1988) (avoiding a constitutional challenge to the National Labor Relations Act by construing NLRA § 8(b)(4)); St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780-81, 788, 101 S.Ct. 2142, 2147-48, 2151, 68 L.Ed.2d 612 (1981) (avoiding a constitutional challenge to the Federal Unemployment Tax Act by construing FUTA § 3309(b)). Because it is FACA that is under attack, I think that any additional degree of interpretive freedom we enjoy in construing FACA cannot be extended to a statute authorizing expenditures for White House staff.
Second, I cannot believe that Public Citizen establishes the rule my colleagues tacitly embrace. In reaching their holding, the majority implicitly distinguishes between “extremely strained construction,” which, under their reading, Public Citizen permits or even requires, and “disingenuous evasion,” which it explicitly forbids. Compare Maj. Op. at p. 216 with 491 U.S. at 467, 109 S.Ct. at 2573. The rule the majority appears to adopt, then, is that judges must strain (but may not evade) the plain meaning of a statute before they may entertain an “as-applied” constitutional challenge. If my colleagues are right, the line between “extremely strained construction” and “disingenuous evasion” will determine the outcome in every case involving an as-applied challenge presenting “for*233midable constitutional difficulties.” Public Citizen, 491 U.S. at 466, 109 S.Ct. at 2572. While I suspect my colleagues may have some sympathy (as I do) with Justice Kennedy’s position that the Supreme Court majority in Public Citizen had stretched its interpretation of FACA “beyond the point at which such a construction remains ‘fairly possible,’ ” id. at 481,109 S.Ct. at 2580 (Kennedy, J., concurring in judgment) (emphasis in original), I cannot believe the Court intended to establish a rule requiring such constructions in cases posing serious constitutional questions.
A review of its reasoning demonstrates that Public Citizen neither explicitly nor implicitly sanctions “strained” statutory interpretation. Its holding — that the ABA Committee was not “utilized” by the President within the meaning of FACA — was based principally on three considerations. The first of these was that, in the Court’s memorable phrase, “ ‘utilize’ is a woolly verb,” id. at 452, 109 S.Ct. at 2565, which necessarily requires judicial definition. Second, it recognized that a “dictionary reading [of the word “utilize” in] FACA’s definition of ‘advisory committee’ ” would lead to a statute of “almost unfettered breadth” and produce “absurd results.” Id. at 452 & n. 8,452-54,109 S.Ct. at 2565 & n. 8, 2565-66. Taken literally, FACA’s definition would have endowed the President with Midas ears capable of turning any continuing source of consensus opinion into a FACA committee. In such a world, the physicians jointly consulted to protect the President’s health, the editorial board of the President’s favorite newspaper, and two dietitians jointly planning the President’s meals could all be classified as “Presidential advisory committees” subject to regulation. Because “the literal reading of [utilize] would ‘compel an odd result,’ ” the Court “search[ed] for other evidence of congressional intent to lend the term its proper scope.” Id. at 454,109 S.Ct. at 2566 (citation omitted). Third, on examining FACA’s origins and legislative history, the Court concluded that while “it seems to us a close question whether FACA should be construed to apply to the ABA Committee, ... we are fairly confident it should not.” Id. at 465, 109 S.Ct. at 2572.
The Court reached this last conclusion in significant part on the basis of the following passage from the FACA Conference Report: “The Act does not apply to persons or organizations which have contractual relationships with Federal agencies nor to advisory committees not directly established by or for such agencies.” Id. at 462,109 S.Ct. at 2570 (emphasis added by Public Citizen). The Court also noted that the relationship between the ABA Committee and the Justice Department had not fallen within the scope of President Kennedy’s Executive Order No. 11007, from which FACA was derived. Id. at 462-63,109 S.Ct. at 2570-71. From this, the Court concluded that “[t]he phrase ‘or utilized’ therefore appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term,” id. at 462, 109 S.Ct. at 2570; and that “[r]ead in this way, ... the word ‘utilize’ does not describe the Justice Department’s use of the ABA Committee,” id. at 463, 109 S.Ct. at 2570.
In applying what the majority, Maj.Op. at p. 213, has laconically (and accurately) described as a “rather sweeping” statutory definition of “advisory committee” to the unique relationship between the Justice Department and the ABA Committee, the Court concluded that it was more probable than not that Congress did not intend that FACA apply to such privately organized groups. Nevertheless, because it considered the question close in light of the broad sweep of the definition, literally interpreted, it applied its venerable rule of statutory construction to tip the balance away from one that would have presented “formidable constitutional difficulties.” Id. at 466, 109 S.Ct. at 2572.
In this ease, we deal not with woolly terms but with the meaning of two words in common legal usage, “officer” and “employee.” Far from creating absurdity, literal interpretations of these terms are necessary in order to give effect to the congressional policy of drawing sharp distinctions between individuals outside the Government and those within it. And in contrast with Public Citizen, in which no statutory definition of “utilize” was *234available and great weight was placed on legislative history, definitions of both “officer” and “employee” have been enacted into law by Congress. In this case, none of the considerations animating Public Citizen are remotely presented; and because we do not deal with ambiguous terms, there is no “balance” to be tipped by resort to legal maxims. Despite appearances, Public Citizen has little to do with the case we decide today.
Finally, to conclude my statutory analysis, I note that the Nixon I Court engaged in a patently straightforward interpretation of Federal Rule of Criminal Procedure 17(c), 418 U.S. at 697-702, 94 S.Ct. at 3102-3104, even though it recognized that “[i]f we sustain[ ] this challenge, there [will] be no occasion to reach the claim of privilege asserted.” Id. at 698, 94 S.Ct. at 3102. Needless to say, the considerations counseling avoidance of difficult constitutional issues were never more pressing than on the facts of Nixon I. Because I can find no credible argument to the contrary, and because I cannot bring myself to strain the meaning of “officer” or “employee” to produce one, I would hold that the Task Force was not exempt from the public disclosure requirements of FACA; and having done so, I would address the constitutional implications of that holding.
As I pointed out earlier, the Supreme Court has acknowledged a Presidential right to confidentiality that “is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Nixon I, 418 U.S. at 708, 94 S.Ct. at 3107. Although the privilege is not absolute, the Court has only twice found that it must yield to competing constitutional interests, such as “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions,” id. at 707, 94 S.Ct. at 3107; and in each case, it has protected the confidentiality of Presidential communications from unwarranted disclosure.
In Nixon 1, in which President- Nixon sought to enjoin the subpoenaing of certain of his papers, the Court found it necessary to
weigh the importance of the general principle of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice.
Id. at 711-12, 94 S.Ct. at 3109. It concluded that the President’s “generalized interest in confidentiality ... cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” Id. at 713, 94 S.Ct. at 3110. Accordingly, it ordered the examination in camera of the papers subject to an instruction that the district court be scrupulous in “protect[ing] against any release or publication of material not found by the court [to be] probably admissible in evidence and relevant to the issues of the trial for which it is sought.” Id. at 714, 94 S.Ct. at 3111.
Nixon II involved a balancing of the President’s interest in the confidentiality of his communications against other national interests. In that case, former President Nixon asserted the Presidential privilege in a challenge to the constitutionality of the Presidential Recordings and Materials Preservation Act, which placed his papers in the custody of the Administrator of General Services. See 433 U.S. at 429-30, 97 S.Ct. at 2783-84. The Supreme Court found that the statute was constitutional because of the Nixon papers’ historical importance and their possible significance as aids to the legislative process, and because of “the safeguards built into the Act to prevent disclosure of [confidential] materials and the minimal nature of the intrusion into the confidentiality of the Presidency.” Id. at 454, 97 S.Ct. at 2796. Those safeguards included the requirement that “any party’s opportunity to assert any ... constitutionally based right or privilege” be protected. Id. at 450, 97 S.Ct. at 2793 (quoting section 104 of the Act). The Court concluded “that the screening process contemplated by the Act [, which was to be conducted by Executive Branch archivists,] ... will not constitute a more severe intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in [Nixon I ].” Id. at 455, 97 S.Ct. at 2796.
In these two cases, the Court permitted only the most limited intrusions on the privilege. FACA, by contrast, would have required that the Task Force operate in the full glare of provisions requiring public meet*235ings and disclosure of records. It is hard to imagine conditions better calculated to suppress the “candid, objective, and even blunt or harsh opinions,” Nixon I, 418 U.S. at 708, 94 S.Ct. at 3107, that the President - was entitled to receive from the twelve advisors he had appointed to his Task Force. Because none of Congress’s purposes in enacting FACA are of a gravity that would justify overriding the Presidential privilege in -this case, I would conclude that FACA is unconstitutional as applied to the Task Force.
For the foregoing reasons, I concur only in the majority’s conclusion, in Part III of its opinion, that FACA’s public disclosure provisions may not be applied to the Task Force. With respect to Part IV, I agree that the district court must develop further facts before it can determine whether the Working Group, or any division thereof, qualified as an advisory committee under FACA.