dissenting:
To maintain national security, Department of Defense employees whose official duties require access to classified information undergo extensive, very personal background investigations. The regulatory scheme at issue in this case protects the sensitive information collected during those investigations and maintained in personnel security files — information about political associations, criminal or dishonest conduct, mental illness, family relationships, financial circumstances, drug and alcohol use, sexual behavior, etc. See 32 C.F.R. § 154.7 & Pt. 154, App. H. Relying on the government’s appellate brief in this case, which in turn relies solely on a declaration of the non-policymaking employee whose behavior is the target of this suit, this court interprets the regulations to give access to personnel files not just to officials specified in the regulation, but to any supervisor anywhere in the Department who doubts an employee’s loyalty. Because there is more than ample “reason to suspect” that this counterintuitive interpretation of the regulation represents a convenient litigating position rather than the “fair and considered judgment” of the Secretary of Defense or any other official with policy-making responsibility, Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, *879137 L.Ed.2d 79 (1997), Supreme Court and circuit precedents preclude us from deferring to it. See, e.g., Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); Akzo Nobel Salt v. FMSHRC, 212 F.3d 1301 (D.C.Cir.2000).
The Privacy Act prevents non-consensual release of personnel records except “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” 5 U.S.C. § 552a(b)(l). Reinforcing this protection, Defense Department regulations provide:
In recognition of the sensitivity of personnel security reports and records, particularly with regard to individual privacy, it is Department of Defense policy that such personal information be handled with the highest degree of discretion. Access to such information shall be afforded only for the purposes cited herein and only to persons whose official duties require such information.
32 C.F.R. § 154.65. To protect the privacy of personnel security files, the regulation requires them to be stored only in approved locked cabinets, vaults, or safes; transmitted only in sealed double envelopes bearing a special restricted access notation; and reproduced only to the minimum extent necessary. See id. § 154.68. Information contained in these files may not be made available without the consent of the subject except to those personnel who have an official need for the information, and then only for specified limited purposes: “determining eligibility ... for access to classified information, assignment or retention in sensitive duties, ... or for law enforcement and counterintelligence investigations.” Id. § 154.65. Commanders and security officers who have “specifically assigned personnel security duties” may. access the files. Id. § 154.67(b). But “[r]ank, position, or title alone do not authorize access to personal information about others. An official need for the information must exist before disclosure.” Id. § 310.41(a)(2).
Despite these regulatory safeguards, Colonel Noyes obtained Major Bigelow’s file solely on the basis of his status as Bigelow’s supervisor. The government does not contend that Noyes has any law enforcement, counterintelligence, or other “specifically assigned personnel security duties.” Id. § 154.67(b). Nor does it claim that Noyes is one of the specifically enumerated persons empowered to make decisions about Bigelow’s security clearance or duty assignment. See id. Pt. 154, App. E; § 154.47(b); § 154.55(c). Indeed, the regulations make it quite clear that if Noyes was “aware of ... significant adverse information” about Bigelow, his obligation was to forward that information to the Defense Investigative Service for further investigation. Id. § 154.60(c)(3). That agency, not Noyes, was responsible for reviewing the information and determining whether Bigelow’s conduct required further investigation. Id. § 154.9 (“No other DoD component [other than the Defense Investigative Service] shall conduct personnel security investigations unless specifically authorized by the Deputy Under Secretary of Defense for Policy.”).
Citing section 154.60 of the regulations, my colleagues conclude that Noyes had an “official need” for access to Bigelow’s file because “[a]n ‘individual’s trustworthiness is a matter of continuing assessment,’ and the ‘responsibility for such assessment must be shared by the organizational commander or manager, [and] the individual’s supervisor’” — in this case, Noyes. Maj. Op. at 877 (quoting 32 C.F.R. § 154.60(a)). Although I agree with my colleagues that the regulations impose on supervisors a “shared” duty to assess the trustworthiness of those they supervise, I do not agree that this duty gives supervisors a per se “official need” — -indeed duty — to go through security files. The regulations protect the privacy of personnel security files by providing access only to certain *880specified officials (commanders and security officers) and by requiring that supervisors like Noyes report their concerns to the Defense Investigative Service for further investigation. 32 C.F.R. § 154.60(c)(3). Of course, had the Secretary of Defense, exercising his authority to interpret Department regulations, interpreted “shared” responsibility to mean that supervisors are “designated DoD officials who require access in connection with specifically assigned personnel duties” within the meaning of section 154.67, I would defer to that interpretation. See Buffalo Crushed Stone v. Surface Transp. Bd., 194 F.3d 125, 128 (D.C.Cir.1999) (“Where the meaning of regulatory language is not free from doubt, we will defer to the agency’s interpretation so long as it sensibly conforms to the purpose and wording of the regulations.”) (internal quotation marks and alteration omitted). But neither the Secretary nor any other policy-making official has so interpreted the regulation.
The Supreme Court made clear in Auer that under certain circumstances we may defer to regulatory interpretations that appear “only in the context of’ litigation. 519 U.S. at 462, 117 S.Ct. 905. But Auer deference has limits. In Bowen, the Supreme Court held that “[d]eference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.” 488 U.S. at 213, 109 S.Ct. 468. The difference between the two cases is this — the Court deferred to the Secretary’s interpretation in Auer because, unlike in Bowen, it was “in no sense a post hoc rationalization advanced by an agency seeking to defend past agency action against attack,” but instead “refiect[ed] the agency’s fair and considered judgment on the question.” Auer, 519 U.S. at 462, 117 S.Ct. 905 (internal quotation marks and citation omitted). See also Martin v. OSHRC, 499 U.S. 144, 156, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (“Our decisions indicate that agency litigating positions are not entitled to deference when they are merely appellate counsel’s post hoc rationalizations for agency action, advanced for the first time in the reviewing court.”) (internal quotation marks omitted); Akzo Nobel Salt, 212 F.3d at 1304 (“[Cjourts ... defer to agency interpretations of ambiguous regulations first put forward in the course of litigation, but only where they ‘reflect the agency’s fair and considered judgment on the matter in question.’ ”) (quoting Auer, 519 U.S. at 462, 117 S.Ct. 905). This insistence that an agency exercise its “fair and considered judgment” stems from two concerns: “First, appellate counsel’s interpretation may not reflect the views of the agency itself. Second, it is likely that ‘a position established only in litigation may have been developed hastily, or under special pressure,’ and is not the result of the agency’s deliberative processes.” National Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C.Cir.1997) (quoting FLRA v. United States Dept. of Treasury, 884 F.2d 1446, 1455 (D.C.Cir.1989)). Thus, we may defer to an agency’s litigating position if, for instance, it merely “articulate[s] an explanation of longstanding agency practice,” Akzo Nobel Salt, 212 F.3d at 1304 (citing Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C.Cir.1998)), or if the Secretary explicitly adopts the position expressed in the brief, see FLRA 884 F.2d at 1455, but not where the record “strongly suggests to us that the Secretary has in fact never grappled with — and thus never exercised her judgment over — the conundrum posed by the regulation’s clear ambiguity.” Akzo Nobel Salt, 212 F.3d at 1305.
Bowen, not Auer, controls this case. The record indicates that the Secretary of Defense has never “grappled with” or “exercised [his] judgment over ... the conundrum posed by [this] regulation’s clear ambiguity”: whether all supervisors have a per se duty to review the personnel security files of employees they supervise. Id. The government’s brief cites only one source in support of its interpretation of the regulation: a declaration prepared for *881this litigation by Noyes. Nothing in the record, however, demonstrates that Noyes has authority to make policy for the Department. See Paralyzed, Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 587 (D.C.Cir.1997) (“A speech of a mid-level official of an agency ... is not the sort of ‘fair and considered judgment’ that can be thought of as an authoritative departmental position.”) (quoting Auer, 519 U.S. at 462, 117 S.Ct. 905). Indeed, the statement in Noyes’s declaration cited in the brief — “I had an official need to know the information in the personnel security file of any employee under my supervision in order to protect the interests of national security”- — does not purport to set agency policy. It represents only Noyes’s view about why he thought he had authority to search Bigelow’s file. Noyes, moreover, is the alleged wrongdoer in this case, the person with the greatest incentive to defend his past “action[s] against attack.” Auer, 519 U.S. at 462, 117 S.Ct. 905.
Of course, we could rely on the government’s appellate brief alone if its interpretation of the regulation reflected the agency’s “fair and considered judgment.” Auer, 519 U.S. at 462, 117 S.Ct. 905 (deferring to the Secretary of Labor’s explicit interpretation of his regulation appearing for the first time in her amicus brief). But it does not. The brief merely asserts that “Appellee” has interpreted its regulation to require supervisors to review personnel files, citing only the Noyes declaration. Moreover, the record contains none of the indicators that would allow us to conclude that a government position set forth for the first time in an appellate brief reflects an agency’s “fair and considered judgment.” The brief does not say that the Defense Department has a “longstanding agency practice” of allowing supervisors access to personnel files, Akzo Nobel Salt, 212 F.3d at 1304, nor is there any indication that the Department “in practice ... has, at least implicitly, followed the same interpretation that it advances on appeal.” National Wildlife Fed’n, 127 F.3d at 1129. Defense Department lawyers, moreover, neither signed the brief nor appear of counsel, as agency lawyers often do in our cases. See FLRA, 884 F.2d at 1455 (deferring to agency interpretation in brief because “Ms. Horner, the agency head, has explicitly adopted the view of the amicus brief. There is no risk that counsel may have acted as mavericks disembodied from the agency that they represent.”) (internal quotation marks omitted).
It misses the point to say that “we have been pointed to no past practices or pronouncements that are inconsistent with the Defense Department’s current interpretation.” Maj. Op. at 878. The point is that we have good “reason to suspect that this interpretation does not reflect the agency’s fair and considered judgment” (Acer’s words) and is nothing more than the position of the U.S. Attorney and the two AUSAs who signed the brief. As the Supreme Court observed in a similar situation where counsel “rationalized the basis of [a regulation] with great professional competence ... this is hardly tantamount to an administrative interpretation of [the relevant statutory provisions].... Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Investment Co. Institute v. Camp, 401 U.S. 617, 628, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). And as we said in City of Kansas City, Missouri v. HUD, 923 F.2d 188, 192 (D.C.Cir.1991), “[i]n whatever context we defer to agencies, we do so with the understanding that the object of our deference is the result of agency decisionmaking, and not some post hoc rationale developed as part of a litigation strategy.”
For these reasons, I believe that the U.S. Attorney’s brief represents a classic example of “ ‘post hoc rationalization ]’ advanced by an agency seeking to defend past agency action against attack.” Auer, 519 U.S. at 462, 117 S.Ct. 905. By deferring to the brief, the court has not only dramatically expanded the number of peo-*882pie with a duty to examine highly sensitive personnel security files, but attributed to the Secretary an interpretation of section 154.60 that he cannot change without notice and comment rulemaking. See Paralyzed Veterans of America, 117 F.3d at 586 (“Once an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking.”). I respectfully dissent.