(concurring):
I join in the result and in the second half of the court’s opinion discussing ex parte communications. I do not concur in the first half because I am not willing, even if one accepts the trial testimony at face value and discounts the agency’s pre-trial statements that Mr. Kostos either prepared or participated in the preparation of the general counsel’s memorandum, to say that Mr. Kostos’ activity fell short of participation in the actual process of decision. The ex parte communications which the court finds that he made would seem to amount to such intervention — there is no real separation in this case between the charge of participation in the decision and the charge of ex parte communications. In view of the disposition of the case, the matter is now academic but I do not want to appear to agree to the narrow definition the court apparently gives to the concept of “participation in the actual decision.”
SKELTON, Judge, joins in the foregoing concurring opinion.