concurring.
I write separately to emphasize that adherence to the principle of judicial restraint — patience in judicial decision-mak*31ing — would produce a better result in II.B of the majority opinion. Because my colleagues and I agree that any federal common-law reporter’s privilege that may exist is not absolute and that the Special Counsel’s evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.
In our circuit it is a venerable practice, and one frequently observed, to assume arguendo the answer to one question — e.g., whether to recognize a federal common-law reporter’s privilege — in order to resolve a given case by answering another and equally dispositive one — e.g., whether any privilege would protect these reporters.1 Although both of my colleagues question the logic of this approach here, it is a mode of decision-making they themselves have often used.2 In this case, how*32ever, they employ two divergent forms of “wide-angle adjudication.” See Harry T. Edwards, The Role of the Judge in Modem Society: Some Reflections on Current Practices in Federal Appellate Adjudication, 32 Clev. St. L. Rev. 385, 414 (1983-84). Judge Sentelle would hold that a reporter enjoys no federal common-law privilege to refuse to provide a bona fide grand jury with relevant documents and testimony while Judge Tatel would fix the contours of a qualified reporter’s privilege by using a novel multi-factor balancing test only to conclude that it helps these reporters not at all.3
While I am convinced that we need not, and therefore should not, go further than to conclude, as did the district court, see Appendix 35-36, 275, that the Special Counsel’s showing decides the case, I feel compelled to comment briefly on my colleagues’ opposing conclusions if only to make clear why I think it unwise to advance either of them. I cannot agree with Judge Sentelle’s conclusion that the United States Supreme Court has answered the question we now avoid. Branzburg v. Hayes addressed only “whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment ” and “h[e]ld that it does not.” 408 U.S. 665, 667, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (emphases added). The boundaries of constitutional law and common law do not necessarily coincide, however, and while we are unquestionably bound by Branzburg’s rejection of a reporter’s privilege rooted in the First Amendment, we are not bound by Branzburg’s commentary on the state of the common law in 1972. Federal Rule of Evidence 501, which came into being nearly three years after Branzburg, authorizes federal courts to develop testimonial privileges “in the light of reason and experience,” allowing for the often evolving state of the commonlaw. See Fed. R. Evid. 501; Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (“In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege.”); see id. (“The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges.”). Judge Sentelle’s view also discounts the fact that, even as they rejected a reporter’s First Amendment right to withhold testimony from a bona fide grand jury, both the Branzburg majority opinion as well as Justice Powell’s separate concurrence hint ambiguously at the existence of some special protection for reporters stemming from them significant role in sustaining our republican form of government.4
*33At the same time, I am far less eager a federal common-law pioneer than Judge Tatel as I find less comfort than he in riding Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), into the testimonial privilege frontier. Just as Rule 501 imposes no “freeze” on the development of the common law, see Univ. of Penn. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); Trammel, 445 U.S. at 47, 100 S.Ct. 906, it likewise does not authorize federal courts to mint testimonial privileges for any group— including the “journalistic class,” as Judge Sentelle dubs it, Maj. Op. at 972 —that demands one. The Supreme Court has warned that testimonial privileges “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see Branzburg, 408 U.S. at 690, 92 S.Ct. 2646; see also Jaffee, 518 U.S. at 21, 116 S.Ct. 1923 (Scalia, J., dissenting). Accordingly, we should proceed as cautiously as possible “when erecting barriers between us and the truth,” id., recognizing that the Legislature remains the more appropriate institution to reconcile the competing interests — prosecuting criminal acts versus constricting the flow of information to the public — that inform any reporter’s privilege to withhold relevant information from a bona fide grand jury. See Univ. of Penn., 493 U.S. at 189, 110 S.Ct. 577.
Because Jaffee sits rather awkwardly within a jurisprudence marked by a fairly uniform disinclination to announce new privileges5 or even expand existing ones,6 and even though it enjoyed the support of an overwhelming majority, I am hesitant to apply its methodology to a case that does not require us to do so. While it would not be the first of its kind, see Lemon v. Kurtzman, 403 U.S. 602, 91 5.Ct. 2105, 29 L.Ed.2d 745 (1971) (“Lemon test”); cf. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 2327 n. 1, 159 L.Ed.2d 98 (2004) (“We have selectively invoked particular tests, such as the Demon test,’ with predictable outcomes.” (internal citation omitted)) (Thomas, J., concurring in judgment), the type of multi-factor balancing test Judge Tatel proposes seems, at least to me, to lack analytical rigor because its application to this case is foreordained. Indeed, I am not convinced that a balancing test that requires more than an evaluation of the essentiality of the information to the prosecution and the exhaustion of available alternative sources thereof is either useful or appropriate. While Judge Tatel makes the centerpiece of his test the balancing of *34“the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in news-gathering, measured by the leaked information’s value,” see Tatel Op. at 998, this court (in the civil context),7 the United States Department of Justice8 and the .lone district court that has recognized a federal common-law reporter’s privilege in the grand jury context9 have declined to consider either of these factors in deciding whether to recognize a reporter’s exemption from compulsory process.10 There is a good reason for this: I suspect that balancing “harm” against “news value” may prove unproductive because in most of the projected scenarios — leaks of information involving,, for example, military operations, national security, policy choices or political adversaries — the two interests overlap. Furthermore, Branzburg warns of the risk inherent in the judicial assessment of the importance of prosecuting particular crimes. See 408 U.S. at 706, 92 S.Ct. 2646 (“By requiring testimony from a reporter in investigations involving some crimes but not in others, [the courts] would be making a value judgment that a legislature had declined to make, since in each case the criminal law involved would represent a considered legislative judgment, not constitutionally suspect, of what conduct is liable to criminal prosecution. The task of judges, like other officials outside the legislative branch, is not to make the law but to uphold it in accordance with their oaths.”). And any evaluation of the-importance of newsgathering keyed to its perceived “benefit” to the public, Tatel Op. at 997; see id. at 1001 (“beneficial news-gathering”), seems antithetical to our nation’s abiding commitment to the uninhibit*35ed trade in ideas. See, e.g., Riley v. Nat’l Fed’n of Blind, Inc., 487 U.S. 781, 790-91, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (“The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”); Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (“The constitutional right of free expression is ... designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us.”); McConnell v. FEC, 251 F.Supp.2d 176, 360 (D.D.C.2003) (“[T]he First Amendment delegates to the populace at large the responsibility of conducting an ‘uninhibited, robust, and wide-open’ debate.” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964))); cf. Gertz v. Welch, Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Moreover, to attempt to establish the contours of a reporter’s privilege here would tend, unnecessarily, to leave a future panel less maneuverability in a case that might require just that to achieve justice. On this score, Judge Tatel levels the identical charge against my approach, see Tatel Op. at 990, but I fail to see how declining to decide whether a reporter’s privilege exists or to define its contours could confine a future panel.
For the foregoing reasons, I am convinced that the court would chart the best course by charting the narrowest one and, accordingly, concur only in the judgment with respect to II.B of the majority opinion. In all other respects, I fully concur.
. See, e.g., Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1308 (D.C.Cir.1997) (because appellant failed to show sufficient need for attorney interview notes, court "save[d] for another day” "difficult matters” of determining "degree of selection necessary to transform facts into opinions and the standard of review we should employ of a district court determination” regarding discovery of attorney work product); Littlewolf v. Lujan, 877 F.2d 1058, 1065 (D.C.Cir.1989) ("find[ing] it unnecessary to address the difficult questions raised by appellants regarding the Due Process adequacy of the period provided by the Act” because "[e]ven if we assume arguendo that the six-month limitations period is unreasonably short and that, as a consequence, the Act effectively 'takes' the Band members’ property rights, we conclude that the statute provides the Indians with just compensation”); cf. Michel v. INS, 206 F.3d 253, 260 n. 4 (2d Cir.2000) ("Where ... no harm results from our failing to answer a question, we believe that the ‘doctrine of judicial restraint provides a fully adequate justification for deciding [the] case on the best and narrowest ground available.' " (quoting Air Courier Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 531, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring in judgment))).
. See, e.g., Tradesmen Int'l, Inc. v. NLRB, 275 F.3d 1137, 1142 (D.C.Cir.2002) (Sentelle, J.) (assuming union organizer’s activity constituted "concerted activity” under 29 U.S.C. § 157 but holding it was not protected under statute); Jackson v. Dist. of Columbia, 254 F.3d 262, 265 (D.C.Cir.2001) (Tatel, J.) (“continu[ing]” assumption that Religious Freedom Restoration Act applies to federal government and holding prisoners failed to exhaust administrative remedies); Carney v. Am. Univ., 151 F.3d 1090, 1094-95 (D.C.Cir.1998) (Tatel, J.) (assuming without deciding retaliation violates 42 U.S.C. § 1981 and remanding claim for trial); Massachusetts, v. United States Dep't of Transp., 93 F.3d 890, 892 (D.C.Cir.1996) (Sentelle, J.) (“We need not determine whether an agency's interpretation of a statute on the preemption question is subject to Chevron analysis in order to decide this case, as the agency’s determination here cannot be upheld with or without deference.”).
Judge Tatel distinguishes these cases by concluding that their analysis cannot be used to avoid the "dispositive” issue in this case. Tatel Op. at 990. There are, however, only three ways of answering the question whether these reporters' confidential source information is protected by a federal common-law privilege: (1) there is no privilege, (2) there is an absolute privilege and (3) there is a qualified privilege. None of us, including the reporters in their brief, would choose door number two, see Tatel Op. at 996; Appellants’ Br. at 42, and only one of us heads for door number one, see Sentelle Op. at 976-77. That leaves door number three. But in choosing this route, the critical question is not definitional, as Judge Tatel sees it, see Tatel Op. at 990, but quantitative; Is the Special Counsel’s evidentiary proffer sufficient to overcome any qualified privilege that may exist? Because we agree that the answer is "yes,” there is no need for us to go any further. Granted, the circumstances of the cited cases differ but they use the same analysis. Moreover, its application here is consistent with the tried and true principle that "[w]here ... no harm results from our failing to answer a question, ... the 'doctrine of judicial restraint provides a fully adequate justification for deciding [the] case on the best and narrowest ground avail*32able.’ ” Michel, 206 F.3d at 260 n. 4 (quoting Air Courier Conference of Am., 498 U.S. at 531, 111 S.Ct. 913 (Stevens, J. concurring in judgment)); see supra note 2.
. Judge Tatel maintains that "[flor the sake of reporters and sources,” we must establish the contours of a privilege in order to "clarify the rules governing their relationship.” Tatel Op. at 991. But the press's collection of information, including from confidential sources, seems to me near impervious to regulation: "[Ejxperience teaches us more than sufficiently that men have nothing less in their power than their tongue Benedict De Spinoza, Ethics 168 (G.H.R. Parkinson ed. & trans., Oxford Univ. Press 2000); cf. Stanley Walker, City Editor 44 (Johns Hopkins Univ. Press 1999) (1934) ("Women, wampum, and wrongdoing are always news.”). As the Branzburg Court recognized, "the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena.” 408 U.S. 665, 694, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
. See Branzburg, 408 U.S. at 708, 92 S.Ct. 2646 (”[N]ews gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First *33Amendment.”); id. at 710, 92 S.Ct. 2646 ("The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”) (Powell, J., concurring); see also In re Grand Jury, 955 F.2d 229, 234 (4th Cir.1992) (noting Branzburg's observation that First Amendment protects reporter in grand jury proceedings initiated or conducted in bad faith presents a "paradox" because "district courts can control prosecutorial abuse in any setting, not just in cases involving the First Amendment”).
. See Univ. of Penn., 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (rejecting privilege protecting academic peer-review materials); United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (rejecting privilege protecting "legislative acts”); see also Jaffee, 518 U.S. at 18-36, 116 S.Ct. 1923 (Scalia, J., dissenting).
. See United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (permitting in camera review of materials to establish applicability of crime-fraud exception to attorney-client privilege); Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (witness spouse’s voluntary testimony not covered by spousal privilege); see also Jaffee, 518 U.S. at 18-36, 116 S.Ct. 1923 (Scalia, J., dissenting).
. Zerilli v. Smith, 656 F.2d 705, 713-714 (D.C.Cir.1981); Carey v. Hume, 492 F.2d 631, 636-38 (D.C.Cir.1974); cf. United States v. Ahn, 231 F.3d 26, 37 (D.C.Cir.2000) (affirming district court’s conclusion that reporter's privilege was not overcome because his testimony was not “ ‘essential or crucial' ” to defendant's case or relevant to determination of guilt or innocence).
. See 28 C.F.R. § 50.10. As Judge Tatel points out, see Tatel Op. at 997, the Justice Department regulations aim to "strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice,” see id. § 50.10(a), but the regulations do not balance the two interests. They establish instead that, in requesting authorization to subpoena a member of the press, the government should: reasonably believe that, in a criminal case, the information sought is essential "to a successful investigation — particularly with reference to directly establishing guilt or innocence,” see id. § 50.10(f)(1); attempt unsuccessfully to obtain the information from "alternative nonmedia sources,” see id. § 50.10(f)(3); seek only to verify, "except under exigent circumstances,” published information and "such surrounding circumstances as relate to the accuracy of the published information,” see id. § 50.10(f)(4); treat “[e]ven” requests for publicly disclosed information "with care to avoid claims of harassment,” see id. § 50.10(f)(5); and, "wherever possible,” seek material information on a limited subject matter and for a limited time period, avoid requiring the production of large quantities of unpublished material and "give reasonable and timely notice of the demand for documents,” see id. § 50.10(f)(6).
. See In re Williams, 766 F.Supp. 358, 368-70 (W.D.Pa.1991), aff'd by equally divided court, 963 F.2d 567 (3d Cir.1992) (en banc) (order without treatment of merits).
. Judge Tatel insists that his test is not "novel ..., considering its basis in Zerilli and Carey and the Justice Department's own guidelines.” See Tatel Op. at 998. But the central factors of his test — the balancing of "the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value,” Tatel Op. at 997-98 —find no support that I can detect in those cases. See 28 C.F.R. § 50.10; Zerilli, 656 F.2d at 713-714; Carey, 492 F.2d at 636-38.