As I am unable to concur with the majority’s reading of the statute, the legislative history, or the relevant case law, I respectfully dissent.
I.
The principal issue in this appeal is whether plaintiff’s aerial tramway is a “consumer product” within the meaning of the Consumer Product Safety Act (CPSA), 15 U.S.C. § 2051 et seq. The operative language is contained in the definitional section of the statute, 15 U.S.C. § 2052(a):
(1) The term “consumer product” means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include—
(A) any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer ....
In order to satisfy the definition, a product must be (a) any article or component thereof; (b) produced or distributed either (i) for *31sale to a consumer, or (ii) “for the ... use ... of a consumer;” and (c) intended for use “in or around a permanent or temporary household or residence, a school, in recreation or otherwise.” As there is no dispute that the aerial tramway is “an article” within the meaning of this section, I will limit my analysis to the other two definitional requirements.
1. MODES OF DISTRIBUTION
I would agree that the legislative history reveals that clause (i) alone constituted the original proposed definition of “consumer product.” Report of the Senate Committee on Commerce on CPSA, S.Rep.No.92-749, 92d Cong., 2d Sess. (1972), S. 3419, Section 101(1), at 42. However, in my view, the legislative history does not support the majority’s conclusion that clause (ii) was added to “include distribution to consumers of the same things [as clause (i) includes] but without a sale .... ” Majority opinion, p. 28 (emphasis added). In analyzing the original proposed definition, clause (i), the Senate Committee specifically indicated that it intended the definition to extend to products distributed free of charge. The Committee’s report states that “[t]o qualify as a ‘consumer product,’ therefore, the product must be one capable of production or distribution for sale to an individual but it is not necessary that the product actually be sold.” S.Rep.No.92-749 at 12.
When clause (ii) was added to the definition, the legislative intent was to expand the coverage of clause (i). The Report of the House Committee on Interstate and Foreign Commerce on CPSA, H.R.Rep.No. 92-1153, 92d Cong., 2d Sess. (1972), which accompanied the modified, and ultimately adopted, version of the definition, clearly states this purpose:
Special attention should be paid to the use of the phrase: “produced or distributed for sale to * * * or for the use of * * a consumer.” It is not necessary that a product be actually sold to a consumer, but only that it be produced or distributed for his use. Thus products which are manufactured for lease and products distributed without charge (for promotional purposes or otherwise) are included within the definition and would be subject to regulation under this bill. Also, products which are primarily or exclusively sold to industrial or institutional buyers would be included within the definition of consumer product so long as they were produced or distributed for use of consumers.
Id. at 27 (emphasis and ellipsis in original). Hence, the legislators’ expressed intent, in amending the definition to include clause (ii), was to extend the Act’s coverage to products principally sold to “industrial or institutional buyers,” so long as they were produced or, distributed for use of consumers. As this second class of products is not necessarily co-extensive with the class designated by clause (i), clause (ii) cannot be read to include only products which are “produced or distributed for sale to consumers.”
The House Committee’s interpretation1 of the “industrial product” exception, 15 U.S.C. § 2052(a)(1)(A), lends additional support to this analysis. According to the Committee report,
It is not intended that true “industrial products” be included within the ambit of the Product Safety Commission’s authority. Thus, your committee has specifically excluded products which are not customarily produced or distributed for sale to or use of consumers. The occasional use of industrial products by consumers would not be sufficient to bring the product under the Commission’s jurisdiction. The term ‘customarily’ should not be interpreted as intending strict adherence to a quantum test, however. Your committee is aware that some products which were initially produced or sold solely for industrial application have often become broadly used by consumers. If the manufacturer or distributor of an industrial product fosters or facilitates its sale to or *32use by consumers, the product may lose its claim for exclusion if a significant number of consumers are thereby exposed to hazards associated with the product.
H.R.Rep.No.92-1153 at 27 (emphasis in original). Thus, clause (ii) and the “industrial product” exception together comprise the legislators’ response to the question of inclusion of quasi-consumer/quasi-industrial products under the definition of “consumer product.” Methods of production or distribution were rejected as the touchstone for coverage, and instead, the functional criteria of “use of consumers” and “significant number of consumers ... exposed to hazards associated with the product” were adopted. If, as its report indicates, the House Committee intended loss of the industrial product “claim for exclusion” to result “if the manufacturer or distributor of an industrial product fosters or facilitates its sale to or use by consumers ... [and] a significant number of consumers are thereby exposed to hazards associated with the product,” then, a fortiori, the exception is also inapplicable when the manufacturer or distributor of a product sells it to industrial buyers solely for the use of consumers. In this case, Bell is such an “industrial buyer” because it is engaged in the recreation industry and it purchased the Skyride from the Swiss manufacturer for the ultimate recreational use of consumers.
In my view, the court’s opinion in ASG Industries v. Consumer Product Safety Commission, 593 F.2d 1323 (D.C.Cir.1979), does not constitute a rejection of the Commission’s position that clause (ii) expands the coverage of clause (i). The language of the ASG opinion upon which the majority relies on page 28 of their opinion includes the statement that clause (ii) covers products purchased by an institution for consumer use. Therefore, the ASG opinion can be read to support the interpretation that clause (ii) covers some products which are not covered by clause (i).
2. PLACE OR PURPOSE OF USE
I would also find that plaintiff’s aerial tramway satisfies the second requirement for classification as a “consumer product,” that is, use “in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.” As the Circuit Court of Appeals for the District of Columbia stated in ASG, “[t]his enumeration of locations and activities in which a consumer product may be used is not a limitation on jurisdiction, but rather an assurance of comprehensiveness.” 593 F.2d at 1328. It is noteworthy that, in support of this interpretation, the court cited Consumer Product Safety Commission v. Chance Manufacturing Co., 441 F.Supp. 228, 231-234 (D.D.C. 1977), for the proposition that the phrase “in recreation or otherwise” does not restrict the location where consumer products are used to residences and schools. 593 F.2d at 1328, n. 16. Because the statutory language utilizes the word “or” rather than “and,” I cannot concur in the majority’s view that the use place and the use purpose (i. e., home or school and “in recreation or otherwise” respectively) must both be met. Rather, I would hold that the phrase “in recreation or otherwise” establishes an independent basis for Commission jurisdiction, and that, plaintiff’s aerial tramway meets this definitional criterion. See also State Fair of Texas v. Consumer Products Safety Commission, 481 F.Supp. 1070, 1077 (N.D.Tex.1979).
In conclusion, I would hold that plaintiff’s aerial tramway is a “consumer product” within the meaning of 15 U.S.C. § 2052(aXl) and that it does not fall within the exception in 15 U.S.C. § 2052(a)(1)(A).
II.
In light of my conclusion that plaintiff’s Skyride is a “consumer product” within the meaning of 15 U.S.C. § 2052, I reach the question of the constitutionality of the Act’s apparent authorization of warrantless “constructive searches” and of the Commission’s investigative efforts.
In Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that the Fourth Amendment requires an administrative agency to obtain a warrant before entering *33the premises of one who refuses to consent to a warrantless entry. However, the Court also noted that, despite statutory authorization of a warrantless search, if the agency actually obtains process which satisfies the Fourth Amendment, the searches under the statute are permissible. 436 U.S. at 325, n. 23, 98 S.Ct. at 1827, n. 23. The subpoena enforcement proceedings in this case provide the same check on abuse of agency power as does an administrative search warrant. Each process affords an opportunity for judicial review before governmental invasion of one’s privacy, and the standard for enforcement of the subpoena does not substantively differ from that required for the issuance of a warrant. Compare United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950), and United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964) with Marshall v. Barlow’s, Inc., 436 U.S. at 320, 98 S.Ct. at 1824 and Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). Therefore, neither the Act nor the Commission’s investigative efforts pursuant to it violate Bell’s Fourth Amendment rights.
I would affirm the District Court’s ruling that Bell lacks standing to challenge the constitutionality of the statutory provisions which authorize civil and criminal sanctions. The commission’s reference, in its initial letter to Bell, to possible sanctions does not constitute a threat of imminent and immediate prosecution and hence, does not establish “real and immediate” injury or threat of injury. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675,38 L.Ed.2d 674 (1974); Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). Like the plaintiffs in O’Shea, Bell is asking us to “anticipate whether and when [it] will be charged with [a prohibited act] and will be made to appear [to answer the charges] . . ..” 414 U.S. at 497, 94 S.Ct. at 676. Because the alleged harm is too remote and speculative, Bell does not have standing to mount a constitutional attack on these statutory provisions.
For the above reasons, I would affirm the decision of the District Court.
. Because S. 3419, 92d Cong., 2d Sess., did not contain this or a similar exception, the Senate Committee report does not discuss it.