concurring:
I concur in the majority opinion, because, in my view, it faithfully adheres to the law of the circuit and correctly decides *1110the matter at hand. I also agree with the dissenting opinion insofar as it acknowledges that Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C.Cir.1993) (“AAPS”), is the law of the circuit and that the Government’s position cannot withstand scrutiny-under AAPS. We are bound to follow the law of the circuit. Therefore, the Government’s petition must be denied.
The Government comes to this court seeking mandamus or collateral order review on an interlocutory appeal, to block discovery, having never claimed that any of the disputed material is privileged and having never responded to the District Court’s invitation to specify their objections to the disputed discovery orders. The Government merely claims that interlocutory review is appropriate because this case implicates “separation of powers” issues. This is an extraordinary proposition. There is no legal authority of which-I am aware - and the Government cites none - to support jurisdiction in this court.
I suspect that, on remand, the Government may be able effectively to challenge the breadth of the disputed discovery order. I also suspect that, once these objections have been raised, the District Court will tailor the discovery order. Until the Government voices its objections, however, this court has no jurisdiction to meddle' in a dispute over a discovery issue that should properly be resolved by the District Court in the first instance.
Under 28 U.S.C. § 1291, discovery orders are appealable only after entry of final judgment in the underlying case, or under the “collateral order” doctrine upon entry of an order holding the litigant in criminal contempt. See Byrd v. Reno, 180 F.3d 298, 302 (D.C.Cir.1999); In re Kessler, 100 F.3d 1015, 1016 (D.C.Cir.1996). There clearly has been no final judgment in the underlying case here, and no criminal contempt order. The Government’s only authority for asserting that the discovery order is appealable under § 1291 despite the absence of a final order is United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). But, as the majority notes, Nixon is inapposite, because that case involved a situation in which discovery was ordered in the face of the President’s assertion of executive privilege. The Government has asserted no privilege in this case. There is no other basis for an invocation of the collateral order doctrine in this case and the Government does not suggest otherwise.
Rather, this case focuses principally on the Government’s request for mandamus relief. Mandamus “is reserved for extraordinary circumstances in which the petitioner demonstrates that his right to issuance of the writ is clear and indisputable and that no other adequate means to obtain relief exist.” Byrd, 180 F.3d at 302. “[Ojnly exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.” Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976) (citation and internal quotation marks omitted). Applying this well-understood test, the Government can point to no basis for mandamus at this juncture, because it can point to no harm. And it can point to no harm because it has yet to specify any privileged materials or otherwise cite objections for consideration by the District Court. It is not enough for the Government to come to this court and claim that discovery may expose materials that are protected by privilege or the deliberative process. It must first specify its objections so that they may be addressed by the District Court.
The Government suggests that interlocutory review is appropriate here, because the District Court is bound to consider *1111only the “administrative record,” sans discovery, with respect to any of plaintiffs’ claims resting on the Administrative Procedure Act (“APA”). This argument is premised on an erroneous view of the law. In the Supreme Court’s seminal decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825-26, 28 L.Ed.2d 136 (1971), the Court made it clear that there are circumstances in which discovery or testimony by agency officials may be necessary and appropriate to resolve an APA claim arising in District Court. In that case, the Supreme Court stated that judicial review was “to be based on the full administrative record that was before the Secretary at the time he made his decision. But since the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence,” the District Court could “require the administrative officials who participated in the decision to give testimony explaining their action.” Id. And in AAPS, we found it entirely appropriate to remand for expedited discovery to determine whether a working group was an advisory committee under the Federal Advisory Committee Act (“FACA”). See AAPS, 997 F.2d at 915-16. In short, tailored discovery may be necessary to determine the question whether a disputed committee is subject to FACA’s strictures.
The decision in AAPS is perfectly consistent with both Overton Park and the law of this circuit. In Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1 (D.C.Cir.1998), this court plainly stated that judicial review properly may involve more than just the administrative record in an APA case “when there has been a ‘strong showing of bad faith or improper behavior’ or when the record is so bare that it prevents effective judicial review.” Id. at 7 (emphasis added) (citing Overton Park, 401 U.S. at 420, 91 S.Ct. at 825-26; Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 997-98 (D.C.Cir.1990)). The dissent cites a Second Circuit case, National Nutritional Foods Association v. FDA, 491 F.2d 1141, 1145 (2d Cir.1974), for the proposition that discovery into the internal workings of Government is not allowed without “strong preliminary showings of bad faith.” But this is an incomplete characterization of National Nutritional Foods, which fully recognized that Overton Park did not necessarily and always require a showing of bad faith. See id.; see also Overton Park, 401 U.S. at 420, 91 S.Ct. at 825-26 (“[W]here there are administrative findings that were made at the same time as the decision ... there must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here there are no such formal findings and it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves.”).
Overton Park and Commercial Drapery make it clear that the exception to the rule of no discovery in APA cases is wider than bad faith. Thus, the absence of any showing of bad faith in this case is immaterial, because plaintiffs here seek discovery on the ground that the administrative record is inadequate for judicial review. And there is no serious doubt here - just as there was none in AAPS - that the bare administrative record does not allow for meaningful judicial review of plaintiffs’ claim. Therefore, reasonable and carefully tailored discovery is legally permissible and entirely appropriate in this case. See AAPS, 997 F.2d at 915-16.
As the opinion for the majority correctly notes, this case is controlled by our decision in In re Executive Office of the President, 215 F.3d 20 (D.C.Cir.2000). The Government cannot find a way around that precedent. Thus, there is absolutely no basis for our interlocutory review of the *1112District Court’s discovery orders, either under the collateral order doctrine or on a petition for mandamus, where the Government has asserted no privilege and has failed to specify any objections to the discovery orders. If, on remand, the District Court fails to tailor discovery pursuant to valid objections or assertions of privilege by the Government, then there may be a basis for appellate review. We are far from that point at this juncture of this litigation, however. Therefore, this appeal should be dismissed, because we have no jurisdiction to consider it.
I respectfully disagree with the dissent’s argument that we should instead dismiss plaintiffs’ case because the District Court lacks mandamus jurisdiction over plaintiffs’ claim. As the dissent correctly acknowledges, AAPS is the law of this circuit, and we are bound by it, as is the District Court. Under AAPS, plaintiffs clearly had a basis for seeking relief in the District Court ordering the Government to comply with FACA. The dissenting opinion cites a General Services Administration (“GSA”) regulation, 41 C.F.R. 101-6.1003 (2000), to suggest that the “de facto member doctrine” of AAPS is misguided. This argument might be tenable if the court in AAPS was obliged to give deference to GSA’s interpretation of FACA. But the Supreme Court in Public Citizen v. U.S. DOJ, 491 U.S. 440, 465 n. 12, 109 S.Ct. 2558, 2572 n. 12, 105 L.Ed.2d 377 (1989), made it clear that any “assertion that GSA’s interpretation of FACA’s provisions is ‘binding’ confuses wish with reality.” In any event, the cited GSA regulation surely does not take precedence over the law of this circuit on the matter here at issue. Under AAPS’ “de facto member doctrine” - which is indisputably the law of the circuit - plaintiffs have a legal basis for seeking mandamus relief and the District Court in turn has mandamus jurisdiction, over the claim.
Finally, most of the arguments raised in the dissenting opinion have never been presented to the District Court and they were not raised for consideration in the Government’s brief to this court or in the oral argument before this court. In other words, the dissent’s position rests on a view of FACA that has never been urged by the Government. “Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, or where ‘injustice might otherwise result.’ Suffice it to say that this is not such a case.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976) (citations omitted). The reason that a federal appellate court normally does not consider an issue not passed upon below is because parties, such as plaintiffs in this case, “should have the opportunity to present whatever legal arguments [they] may have in defense of the statute.” Id. at 120., 96 S.Ct. at 2877-78 The dissent’s theory of this case has not been propounded by the Government; it runs counter to the law of the circuit; and it relies on GSA regulations that the Supreme Court has said do not carry the force of law. In these circumstances, I can see no reasonable basis for this court to act sua sponte on a theory that has been neither raised by the parties nor addressed by the District Court.
For the foregoing reasons, I concur in the opinion for the majority.