(concurring in the result).
The record discloses a “tentative” refusal by the Passport Office to renew Dr. Briehl’s passport, and an official determination by that Office not to render a final decision on the matter because of Dr. Briehl’s refusal at his hearing to furnish an affidavit, as provided for in Section 51.142 of the Passport Regulations, “with respect to present or past membership in the Communist Party.” Unlike the applicant in Robeson v. Dulles, 98 U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86, the appellant in this case has pursued the administrative and judicial steps open to him to raise the question whether the Secretary of State may validly require such an affidavit as a condition precedent to the rendering of a final decision. That question must now be decided.
The Secretary seeks to uphold his power to elicit information as to Communist Party membership as a procedure incident to the substantive power to restrict foreign travel through passport denial. Affidavit requirements of this sort are ordinarily valid if the information elicited is relevant to the exercise of a valid power. Cf. Garner v. Board of Public Works, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317.1 Implicit in the decisions of this court is the holding that the Secretary possesses a substantial measure of authority to restrict travel by passport denial.2 While the precise extent of that authority is still in process of being defined, Congress has not been silent or inactive. In the 1941 travel control statute, 8 U.S.C.A. § 1185, Congress provided, in substance, that when the President has proclaimed a national emergency and when he has found that the interests of the United States re*577quire additional restrictions on the departure of persons from the United States, it shall be unlawful for a citizen to leave the country without a valid passport. As Judge Prettyman points out, this statute has become operative. I read it as having been intended to authorize the Secretary to control, by passport denial, the travel of those whose journeying abroad is reasonably found to be contrary to the interests of the United States.
In the Internal Security Act of 1950, Congress made the following legislative finding, whose validity today can hardly be subject to challenge:
“Due to the nature and scope of the world Communist movement, with the existence of affiliated constituent elements working toward common objectives in various countries of the world, travel of Communist members, representatives, and agents from country to country facilitates communication and is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.” 50 U.S.C.A. § 781(8).
Congress implemented that finding by Section 6 of the Internal Security Act, 50 U.S.C.A. § 785, a provision which the framers of the Act no doubt thought would come into effect at a much earlier date than in fact has proved possible. But the congressional finding remains as an admonition to the executive branch to use its authority in all lawful ways to control the “travel of Communist members, representatives, and agents” so as not to facilitate communication or otherwise “further the purposes of the Communist movement.” Therefore, I have no doubt that the Secretary has the power — in some eases at least — to deny passports on grounds to which past or present membership in the Communist Party “may prove relevant.” Garner, supra, 341 U.S. at page 720, 71 S.Ct. at page 912.
It must be admitted, I think, that the affidavit requirement does infringe Dr. Briehl’s interest in maintaining privacy and upon interests protected by the First Amendment.3 But if the interests of the public are also involved, the problem is “to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.” American Communications Ass’n v. Douds, supra, 339 U.S. at page 399, 70 S.Ct. at page 684. The information as to Communist Party membership is asked for in connection with a passport application and might prove relevant to a valid denial of a passport. Under all the circumstances, it seems clear that the benefit to the public order, in having information of this sort available to the Secretary to enable him to exercise his lawful authority, substantially outbalances any abridgement of individual interests that may result. As Mr. Justice Murphy observed, concurring in West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 645, 63 S.Ct. 1178, 1188, 87 L.Ed. 1628: “The right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government require it for the preservation of an orderly society,- — as in the case of compulsion to give evidence in court.” (Emphasis supplied.) In the exercise of his powers over the granting or withholding of passports, the Secretary is similarly entitled to relevant information.
For these reasons, I find no infirmity in the statutory and regulatory system which authorizes the Secretary to withhold a passport from any person who, by refusing to furnish the required affidavit, fails to complete his application.4 Ap*578pellant has not suggested any reason or rule of law that would require a governmental agency to proceed to hear and determine on its merits the claim of a person seeking to exercise a right or privilege, when the claimant declines to file a complete application, as required by statute or by a regulation having — like the present one — the force of law.5 Surely if a person desiring to vote declines to answer a question which may prove relevant to a valid ground of denial —such as his age, or where and when he last voted — an election board may there-, upon refuse to permit him to vote until the question is answered, and need not make a considered determination that in fact he is ineligible. And even if the decision to deny a right could be said to require an exercise of discretion, I do not see why the decision-maker must act in spite of the fact that he has not received answers to relevant questions which were properly asked, and which may provide information necessary for a proper decision.
It is important to bear in mind the distinction, which the Supreme Court pointed out in Konigsberg v. State Bar of California, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, between the two courses of governmental action that can follow a refusal to answer a particular question propounded by a government agency. In Konigsberg, an adverse inference was drawn from a refusal to answer, and governmental action — denial of bar membership — was based in part on this inference. The Court held the inference to be unreasonable, since the refusal appeared to be based on a good faith reliance on a constitutional privilege and therefore would not necessarily give rise to the adverse inference which the State had drawn. On the other hand, in the case at bar, no adverse inference was drawn from a refusal to answer. Here the government agency asserted its right to have certain information which was relevant to the exercise of valid authority, and declared in advance that it would not proceed until the information was forthcoming. This is precisely the sort of situation which the Court in Konigsberg contrasted with the inference-drawing approach that had been used there. As to this situation, the Court indicated that a serious First Amendment question would be raised, as has been recognized in this opinion, and that there would be a question of fairness if the applicant were not warned of the consequence of failure to answer. Here the regulations plainly indicate the result of a refusal to answer.
At this stage we are concerned only with a request for identification of affiliation vel non, unaccompanied by any direct penalty stemming from such identification. “No doubt issues like those now before us cannot be completely severed from the political and emotional context out of which they emerge. For that very reason adjudication touching such matters should not go one whit beyond the immediate issues requiring decision.” American Communications Ass’n v. Douds, supra, 339 U.S. at page 416, 70 S.Ct. at page 693 (Frankfurter, J., concurring in part). The question whether past or present membership in the Communist Party is in itself sufficient to support denial of a passport is not before us: there has not here been a denial based on such membership.6
*579It is also unnecessary and inappropriate for us to decide such questions as whether the Secretary’s regulations are in every particular valid, whether he is justified in using confidential information, whether he must always hold a hearing, and the like. We need not in the present case attempt fully to define the scope of the Secretary’s power, or that of the courts. We should do no more than decide the question actually before us.
. When the Supreme Court in Garner determined that the state agency may properly elicit from city employees information “that may prove relevant to their fitness and suitability for the public service,” 341 U.S. at page 720, 71 S.Ct. at page 912, it apparently assumed the proposition that the state agency had power to bar from employment those who are not fit or suitable for the public service.
. See Shachtman v. Dulles, 1955, 96 U.S. App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43; cf. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. The highly restrictive position taken by Judge Bazelon in his learned dissent is opposed to tbe spirit if not the letter of these decisions. But it may be agreed that further congressional action in the passport field would be very desirable.
. See American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 402, 70 S.Ct. 674; see also United States v. Rumely, 1953, 345 U.S. 41, 56, 73 S.Ct. 543, 97 L.Ed. 770.
. 22 U.S.C.A. § 213 requires every passport applicant to furnish under oath an application containing “a true recital of each and every matter of fact which may be required by law or by any rules *578authorized by law.” See also 22 C.F.R. 51.14. Section 51.142 of the regulations authorizes the affidavit, and Section 51.74 specifies that the' affidavit “shall be considered as, and become, a part of the application.”
. The thrust of appellant’s argument is that the issuance of a passport is being unlawfully conditioned upon the requirement of a “test oath.” But as the Supreme Court pointed out in Garner, supra, entirely different issues are raised by a requirement that certain conduct or affiliation be denied under oath, and by a requirement that information “with respect to” a stated subject matter be given.
. See Garner, supra 341 U.S. at page 720, 71 S.Ct. at page 912: “The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Com*579munist Party * * *. Not before us is the question whether the city may determine that an employee’s disclosure of such political affiliation justifies Ms discharge.” (Emphasis supplied.)