(concurring in remand):
In this case, presenting an issue of first impression, the parties have dealt inadequately with what I think is a basic aspect. Most importantly under the circumstances presented, I feel we are bound to take account of the Congressional declaration that certain entities and individuals have not been included as investment advisers as defined in *1382section 202(11) of the Investment Advisers Act.
Senate Report 1775 from the Committee1 on Banking and Currency will be found in full commencing at page 10071, Congressional Record, Volume 86, Part 9, 76th Congress, 3d Session. As the Report shows, after extensive hearings at which much opposition had been voiced, the subcommittee recessed while the Commission,2 spokesmen for various interests, and the Committee staff conferred and worked out the terms of the bill.3 Compromise and agreement having been reached, both branches of Congress then unanimously passed H.R. 10065, a bill identical to S. 4108.
So it was that Senate Report 1775 analyzing the provisions of the pending legislation set forth at Congressional Record page 10077:
“Findings and definitions: Section 201 and 202 contain, respectively, the findings of the Congress with respect to investment advisers and the definitions of various- terms used in title II. The term ‘investment adviser’ is so defined as specifically to exclude banks, bank holding-company affiliates, lawyers, accountants, engineers, teachers, brokers (insofar as their advice is merely incidental to brokerage transactions for which they receive only brokerage commissions), publishers of bona fide newspapers, news magazines, or financial publications of general and regular circulation, and persons whose advice is limited to securities issued by the United States and certain instrumentalities of the United States. In addition the Commission is authorized by rules and regulations or order to make certain further exceptions according to prescribed statutory standards.” (Emphasis added.) 4
Seldom will we find more knowledgeable participants, notes 1 and 2, supra, than those who evolved this legislation. Clearly their wording was meaningful, but it seems to me my colleague is saying that when Congress adopted the exclusionary language, it was the same as leaving it out of the Act. Observing that the case was “close,” the District Judge seems to have sought to steer a course between the position of the Transcript that the Commission had no jurisdiction 5 whatever to undertake the investigation, and the Commission’s insistence that it, and it alone, possessed the power of decision.
I
The Commission’s July 27, 1967 order directing an investigation recited that *1383the “Holman Co.” had been expelled from membership in the NASD and that Richard A. Holman was a “cause” for that order. The Commission further recited that it had information tending to show that Holman is the publisher and editor of the Transcript, he controls the Transcript Corporation, the Corporation was making use of the mails in connection with the sale of the Transcript to the public and that, without having filed for registration with the Commission, the Transcript “is an investment advisory publication and the Corporation is therefore an investment adviser within the meaning of the term under the Investment Advisers Act of 1940.” Thus the order directed that an investigation be conducted pursuant to §§ 209(a) and (b) of the Act to ascertain the possible existence of a violation of § 203 of the Act.
The subpoena duces tecum was directed to “Wall Street Transcript Corporation by Richard A. Holman” calling for testimony “In the Matter of Wall Street Transcript Corporation and Richard A. Holman.”6 The subpoena sought the production, not merely of “certain correspondence and advertising materials,” but
“All of the following relating to the business of Wall Street Transcript Corporation during the period from January 1,1967 until the present:
1) Copies of all advertisements, notices, circulars, newspaper articles and any other writings used in connection with the sale of The Wall Street Transcript.
2) All correspondence with subscribers and prospective subscribers to The Wall Street Transcript.
3) All documents, agreements, memoranda, correspondence and any other writings relating or containing reference to the obtaining of reports, comments, management speeches and any other written materials for publication in The Wall Street Transcript.” (Emphasis added.)
The District Judge recognized the “all-encompassing nature of the subpoena sought.” Undoubtedly his perception in this respect entered into his denial of the motion for enforcement. Rather than an outright refusal to lend the aid of the Court to the Commission’s demand, under the circumstances of this case I think he should have called for a showing as to the particular factors upon which the Commission’s administrative judgment would turn.7 In the failure to do so, as it seems to me, lay error. Section 209(c) provides that “the Commission may invoke the aid” of the Court and that the Court “may issue an order.” 8 Thereafter, not the demand of the subpoena but the terms of the Court’s order, if warranted, would have controlled the course of the investigation. Unless it could be made to appear that the Transcript was not the publisher of a “bona fide newspaper” or of a bona fide “news magazine,” or of a bona fide “business or financial publication of general and regular circulation,” the court was free to withhold an enforcement order.
II
Of course, as our able colleague points out, in the ordinary case of an investigation conducted by an administrative agency, no showing of probable cause need be made to the District Court unless a statute indicates otherwise.9 But this *1384was not a proceeding under the Securities Act of 1933 or that of 1934. This situation arose under the Investment Advisers Act, and its terms must be regarded. Here Congress has interposed a series of limitations, and in specific language, supra. The Commission in effect would have us say that its powers are unlimited. The Supreme Court speaking through Mr. Justice White in See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967), has distilled from its earlier cases the rules to be stated thus:
It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.6 (Footnote omitted.) The agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but it must delimit the confines of a search by designating the needed documents in a formal subpoena. In addition, while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. (Emphasis supplied.)
The findings of the District Judge are spelled out in Securities & Exch. Com’n v. Wall Street Transcript Corp., 294 F.Supp. 298 (1968) at pages 304-306. The evidence upon which he relied and the transcript of argument before him are part of our record, and fully support his ultimate conclusion:
Upon the available evidence, the Transcript appears to be a bona fide “financial publication of general and regular circulation.” Ibid. 306.10 (Emphasis mine.)
I agree. That conclusion is specific, directly follows the statute and involves no “newspaper” discussion.
Ill
So, as Mr. Justice White pointed out in the See case, supra, the agency “must delimit the confines of a search by designating the needed documents in a formal subpoena.” That instrument, to avoid abuse of the court’s process, must be “sufficiently limited in scope, relevant in purpose, and specific in directive.” (And see 294 F.Supp. at 307.)
Moreover the subpoenaed party “may obtain judicial review of the reasonable*1385ness of the demand prior to suffering penalties for refusing to comply.”
Accordingly, in the circumstances of this case and for the reasons I have adduced, I would remand for a hearing. The District Judge should require that the Commission satisfy him as to what are the “needed documents,” relevant to what purpose, and how specifically they may be pertinent to support the claim in the Commission’s original order and application for the Court’s aid. That order predicated the Commission’s investigation on the claim that the Transcript “is an investment advisory publication” and that it is “an investment adviser” within the meaning of the Act. The Commission must have had some factors in mind upon which to base its allegation and its conclusion, however tentative. Let the Court become satisfied that its aid is required, that its order may be tailored to the need to be demonstrated.
For the Court to yield otherwise is to ensconce “administrative absolutism” at its unreachable zenith. I cannot believe that Congress intended any such result, and thus I respectfully differ from my colleagues.
. That Committee included Chairman Wagner, Senator Carter Glass (a noted publisher and financial expert), Senator James F. Byrnes (later Supreme Court Justice and Secretary of State), Senator Francis Maloney, Senator Robert A. Taft and others of wide experience in the business and financial world.
. The Commission functioned under its Chairman, the late Jerome Frank, thereafter a valued member of this Court, and other noted members such as Leon Henderson and Sumner S. Pike. After protracted conferences had resolved opposition, the major interested parties joined in a statement urging passage of the legislation. Cong.Record, ubi supra, p. 10077.
. Mr. Justice Goldberg in S. E. C. v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) drew upon Senate Report 1775 in outlining the background for the Court’s consideration of the question presented in that case which had been heard en bane in this Court. 306 F.2d 606 (1962). The Supreme Court decided that a registered investment adviser, being a person “who, for compensation, engages in the business of advising others” (375 U.S. 187, n. 15, 84 S.Ct. at 280) charged with “scalping” could be required to make full disclosure to his clients. The ease did not deal with the question here presented. And see Marketlines, Inc. v. Securities and Exchange Commission, 384 F.2d 264 (2 Cir. 1967).
. And see section 202(a) (11) of the Act.
. But surely the publisher of a paper has no special immunity from laws applicable to business in general. Associated Press v. National Labor Relations Board, 301 U.S. 103, 130, 132-133, 57 S.Ct. 650, 81 L.Ed. 953 (1937).
. Neither in the Court below nor at argument nor on brief here has it been suggested that the Commission sought an investigation of Holman.
. In view of the scope of the demands of the subpoena and as bearing upon what information might be deemed relevant, Commission counsel was questioned from the bench during the argument of this appeal. Counsel failed to specify the factors upon which the Commission’s administrative judgment might be exercised.
. Shasta Minerals & Chemical Co. v. Securities & Exch. Com’n, 328 F.2d 285 (10 Cir. 1964).
. Rejecting there the imposition of a “probable cause” standard, the Court in United States v. Powell, 379 U.S. 48, 56, 85 S.Ct. 248, 254, 13 L.Ed.2d 112 *1384(1964), protected its holding thus: “'Without some solid indication in the legislative history that such a gloss was intended, we find it unacceptable.” (Emphasis added.) Here we have that “solid indication.”
Again, in Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 215-216, 66 S.Ct. 494, 90 L.Ed. 614, 166 A.L.R. 531 (1946), the Court found the “showing” sufficient, noting that the Congress had made no requirement of any showing of probable cause. No “standards for administrative action which the judiciary first had to weigh and appraise” had been set by Congress, as Justice Douglas noted, dissenting in United States v. Powell, supra, 379 U.S. at 59, 85 S.Ct. at 256, citing United States v. Morton Salt Co., 338 U.S. 632 at 654, 70 S.Ct. 357, 94 L.Ed. 401 (1950).
Here by its exclusionary language, supra, Congress clearly differentiated each of several classes from those who otherwise would come within the definition of “investment adviser.” I suggest that the limiting language clearly demonstrates the need for such a showing as will justify the conclusion that the entity is no longer entitled to the exclusion, e. g., that the “performance of such services” by a lawyer is not “solely incidental to the practice of his profession.” Or that the broker has indeed received “special compensation,” for “such services.”
. That conclusion is sufficient for our purposes, especially since we need not, indeed should not, reach a First Amendment issue where adequate ground otherwise exists for disposition of the case. Judge Tyler had further observed that the Transcript has all the usual indicia of a newspaper, noting also that the SEC had furnished no persuasive evidence to the contrary.