concurring in part and dissenting in part:
I concur in that portion of the majority opinion which grants enforcement of the EEOC subpoena and denies the attorney fees requested by Horne, but dissent from the majority’s invalidation of the EEOC disclosure rules.
The EEOC rules at issue allow an individual who files an employment discrimination charge with the agency, and who is considering pursuing his complaint through private litigation, to inspect portions of the material the agency has gathered in the course of investigating his charge. The majority now holds that this disclosure violates the command of 42 U.S.C. §§ 2000e-5(b) and 2000e-8(e) that the agency shall not “make public” the results of its investigations until litigation involving the information has begun. The majority adopts the analyses of Sears, Roebuck & Co. v. EEOC, 189 U.S.App.D.C. 163, 581 F.2d 941 (D.C.Cir. 1978) and Burlington Northern, Inc. v. EEOC, 582 F.2d 1097 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), decisions based not so much on the language of the statute1 as on the courts’ belief that disclosure would encourage private litigation and “necessarily undercut the preferred enforcement scheme of comprehensive negotiation and settlement.” Burlington Northern, 582 F.2d at 1100. I believe that these decisions are predicated upon a fundamental misconception of both the importance of private litigation in Title VII enforcement and the impact of the disclosure rules on the conciliation process.
The Commission’s disclosure rules, to the extent that they allow a charging party access to his own case file,2 are narrow in scope. Disclosure of the file contents is permitted only “in connection with pending or contemplated litigation.” EEOC Compliance Manual § 83.3(a). No disclosure is made prior to the beginning of the 90-day period during which a private action may be brought, absent a showing of “compelling need.” Compare 42 U.S.C. § 2000e-5(f)(1) with EEOC Compliance Manual § 83.3(a). Certain types of information are expunged from the case file before it is disclosed, including the identities and statements of *1079witnesses who have been promised confidentiality by the Commission, and all information concerning the Commission’s attempts to settle the charge through conciliation.3 Id. § 83.6. Once a private action has been brought under Title VII, the statute imposes no restrictions on the public dissemination of relevant material in the EEOC files, except for conciliation information. Therefore, in most cases the practical effect of the disclosure rules is to allow access to investigatory material 90 days, at most, before it would otherwise be disclosed.
I do not believe that such a limited disclosure of information would have the dire effects predicted by the Sears and Burlington Northern courts.4 The Commission contends that the disclosure rules discourage meritless litigation, by informing potential litigants of the weakness of their cases, and that meritorious suits which may be encouraged by the rules complement, rather than hinder, its own enforcement efforts. I find this assessment by the agency responsible for enforcing Title VII, based on thirteen years of experience with the disclosure rules in practice, more persuasive than speculation engaged in by the courts. Cf. Cannon v. University of Chicago, 441 U.S. 677, 705-707, 99 S.Ct. 1946, 1962-1963, 60 L.Ed.2d 560 (1979).
The Sears and Burlington Northern decisions, which the majority now adopts, are premised upon a concept of private litigation as the ugly stepchild in the Title VII scheme, to be discouraged whenever possible.5 But private litigation has been an integral part of the Title VII enforcement scheme since the statute’s enactment in 1964. The 1972 Amendments strengthened the Commission’s own enforcement powers, but also encouraged private actions through provisions for appointment of counsel and commencement of actions without payment of fees, costs or security. In retaining private litigation as a critical enforcement tool, Congress emphasized that “[t]he primary concern must be protection of the aggrieved person’s option to seek a prompt remedy in the best manner available.” *1080H.R.Rep. No. 238, 92nd Cong., 1st Sess., reprinted in 1972 U.S.Code Cong. & Admin. News, pp. 2137, 2148.
Congress also recognized that “the nature of Title VII actions more often than not pits parties of unequal strength and resources against each other. The complainant, who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation’s major producers, and who has at his disposal a vast array of resources and legal talent.” Id. at 2148. This disparity is increased by the fact that “the entire area of employment discrimination is one whose resolution requires not only expert assistance, but also the technical perception that a problem exists in the first place, and that the system complained of is unlawful.” Id. at 2144. The disclosure rules, in recognition of this difficulty, provide the aggrieved individual with the benefit of the Commission’s “technical perception” at the most appropriate time — when he must decide whether to bring a private action. The majority’s invalidation of the rules will force the individual to file an action, and then learn through discovery whether he has a meritorious case. I fail to see how this will promote any of the statute’s objectives.
In upholding the right of an individual to bring an action alleging employment discrimination under 42 U.S.C. § 1981, by-passing the administrative remedies entirely, the Supreme Court stated: “Conciliation and persuasion through the administrative process, to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission’s efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). I dissent from the majority’s attempt to limit that choice.
. Neither the language of the statute nor its history addresses the issue of whether the charging party is a member of the “public” to whom disclosure is forbidden. The Fifth Circuit, sitting en banc and construing essentially the same statutory language, concluded that the term “public” does not include the charging party. H. Kessler & Co. v. EEOC, 472 F.2d 1147 (5th Cir. 1973) (en banc), cert. denied 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 398. See also Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195 (4th Cir. 1978), in which this court ordered the disclosure of EEOC investigatory material to a party charged with discrimination, apparently accepting the plaintiffs uncontested argument that the language of Title VII “suggests a manifest distinction between, on the one hand, right of disclosure to the public generally, and, on the other hand, a right of disclosure to the parties themselves . [Disclosure to the parties — whether to the party charged or to the charging party— is not within the prohibitions of Title VII.” 571 F.2d at 199.
. The rules also permit the charging party to inspect files containing other charges against the same respondent which allege similar types of discrimination. EEOC Compliance Manual § 83.7(c). I believe that this constitutes “publicizing” the other files, and that this disclosure, prior to litigation involving the information, is forbidden by the statute. I would invalidate the disclosure rules only insofar as they allow a party access to other case files.
. The employer in this case contends that confidential business data is included in the materials disclosed by the Commission, although it offers no substantiation for this claim. Regardless of whether the Commission’s disclosure rules specifically exempt legitimate trade secrets, and other confidential business information disclosure of such material is forbidden by 18 U.S.C. § 1905, and the Administrative Procedures Act provides an adequate remedy for threatened violations of this statute. See Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979).
. In addition to fear that the disclosure rules undercut the Commission’s settlement efforts, the Sears court expressed concern that the Commission could not enforce the agreements it requires as a condition of disclosure, which prohibit the charging party from public dissemination of the information. EEOC Compliance Manual § 83.3(b). “[Cjounsel for the Commission asserted that the EEOC . could seek to enjoin parties from violating their agreement . . . . When pressed, however, counsel could point to no instance when this had been done.” 189 U.S.App.D.C. at 168, 581 F.2d at 946. This may be explained by the Commission’s uncontested assertion in this court that there has never been a violation of the agreement in the 13 years during which the rules have been in effect.
. This theory is criticized, based upon a thorough review of the legislative history of Title VII, in The Meaning of “Public” in Section 709(e) of the 1964 Civil Rights Act and Access to Information Gathered by the EEOC, 67 Ky.L.J. 430 (1978-79).
The congressional explanation of the need for the 1972 Amendments casts doubt upon the Sears and Burlington Northern courts’ faith in voluntary conciliation as the preferred means of ending discrimination:
During the preparation and presentation of Title VII of the Civil Rights Act of 1964 . [i]t was thought that a scheme which stressed conciliation rather than compulsory processes would be more appropriate for the resolution of this essentially “human” problem. Litigation, it was thought, would be necessary only on an occasional basis in the event of determined recalcitrance. Experience, however, has shown this to be an oversimplified expectation, incorrect in its conclusions . . [T]he Commission has been able to achieve successful conciliation in less than half of the cases in which reasonable cause was determined. It has been the emphasis of voluntariness that has proven to be most detrimental to the successful operation of Title VIL H.R.Rep. No. 238, 92nd Cong., 1st Sess., reprinted in 1972 U.S.Code Cong. & Admin.News, pp. 2137, 2143-2144.