concurring.
Under the distinct two-part test announced in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975), and applied by this circuit in Combined Communications Corp. v. Finesilver, 672 F.2d 818, 820-21 (10th Cir.1982), a case is not moot where:
“(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.”
423 U.S. at 149, 96 S.Ct. at 349 (emphasis added). I agree with the majority’s refusal to reach the merits because this case is not the type that is too short-lived to be fully litigated before expiration of the controversy. As the majority opinion states, had the preliminary injunction been appealed, we could have fully reviewed it before the MSHA proceedings resumed. The issue presented was thus capable of full review in a true case or controversy, and we therefore should not address it here.
The majority also decides, however, that a decision on the merits is not justified because the case is not sufficiently likely to recur. I am writing separately because I believe that deciding this issue in this case is wrong, for three reasons. First, the “incapable of review” prong completely decides this case. We should not abandon our usual, prudent practice of not reaching out to decide unnecessary issues. Second, under this court’s precedent, I seriously doubt whether this case is so incapable of repetition that it fails that prong of the test. See Combined Communications, 672 F.2d at 820-21. And third, the Supreme Court has been very willing to reach the merits of significant undecided press access issues even where the harm alleged had become incapable of redress. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). In light of the Court’s unwillingness to articulate a clear standard in a press case like the one before us, deciding the issue without the benefit of briefs or argument is imprudent.
Only the latter two points require elaboration. As we recognized in Combined Communications, a defendant bears a heavy burden in arguing that its allegedly unconstitutional practices will not repeat themselves. 672 F.2d at 821 (citing United States v. W.T. Grant & Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). We held there that a local rule denying television camera access to statutorily mandated open meetings did not violate the First Amendment. Despite the unique nature of the redistricting proceedings in that case, we held that the possibility of a similar harm occurring to the plaintiff was “not so remote and speculative that the controversy must be considered moot.” Id. I fail to see how the majority can so confidently conclude that the situation in the instant case is less likely to recur.
*1187More important than the conflict between this case and our holding in Combined Communications, however, is the majority’s unwillingness to recognize the importance of First Amendment claims to justiciability. The Supreme Court has reached the merits in three press access cases that raised novel First Amendment implications without elaborating on the precise meaning of “reasonably likely to recur.” See Globe Newspaper Co., 457 U.S. 596, 73 S.Ct. 2613; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Absent Supreme Court guidance as to where the line should be drawn, unnecessarily deciding an issue with a potentially significant effect on future First Amendment litigation is unwise, particularly without the benefit of argument.
The majority attempts to justify its holding by concluding that “in the instant case there is no more ‘demonstrated probability’ that the present fact situation will recur than there was a ‘demonstrated possibility’ in Weinstein v. Bradford, 423 U.S. 147 [96 S.Ct. 347, 46 L.Ed.2d 350], that Bradford would again be subjected to the parole system.” Maj. op. at 1185. Although this may be correct, Weinstein involved a Fourteenth Amendment inquiry into the procedural rights due during parole eligibility determinations rather than a First Amendment question.
The majority’s apparent belief that the mootness inquiry can be conducted within a neutral legal framework applicable in like fashion to all cases regardless of the underlying issues is insupportable. The malleability of all justiciability questions is well established. See, e.g., Flast v. Cohen, 392 U.S. 83, 94-95, 97, 88 S.Ct. 1942, 1949, 1951, 20 L.Ed.2d 947 (1968) (recognizing that a justiciability decision must involve policy considerations because “its utilization is the resultant of many subtle pressures”). As to mootness, the Supreme Court has recognized for more than a quarter century that “a public interest in having the legality of practices settled, militates against a mootness conclusion.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). The public interest in a well defined First Amendment deserves consideration in deciding the justiciability of a lawsuit. See Meese v. Keane, — U.S. -, 107 S.Ct. 1862, 1866-67, 95 L.Ed.2d 415 (1987) (relying on the special nature of a First Amendment injury to find standing); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987) (noting the importance of the plaintiff’s allegation that his First Amendment rights were chilled by the statute in question); cf. Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 2512-13, 96 L.Ed.2d 398 (1987) (“we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment”).
We need not and should not address the “reasonably likely to recur” prong of the Weinstein test in holding that this case is moot. Before ruling on an issue that could result in the inability of the press to have First Amendment claims addressed, I strongly believe that we should wait for a case where the issue is necessary to our decision and fully argued by the parties.