(dissenting).
While I concur in Judge Dana-her’s opinion I am setting out some additional considerations which I feel require some emphasis. The factual background of this case has been detailed at length in the original panel opinion issued April 18, 1968 (129 U.S. App.D.C. 217, 392 F.2d 822 (1968)). Its procedural history since that time is set out in today’s majority opinion. For the reasons hereinafter stated I adhere to my view in the original panel opinion that appellant’s dismissal was proper.
I
At the outset of my discussion I feel that a threshold factor should be stressed. We must not lose sight of the fact that our scope of review is restricted by the relevant authority to a consideration only of whether the administrative agency’s findings have a “rational basis” and that they are not arbitrary or capricious. Eustace v. Day, 114 U.S. App.D.C. 242, 314 F.2d 247 (1962); Mc-Tiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964). As we said in Studemeyer v. Macy, 116 U.S.App.D.C. 120, 121, 321 F.2d 386, 387, cert. denied, 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963):
There may be ground for reasonable differences of opinion as to whether the cause for which the personnel action was taken was grave enough to warrant depriving appellant of his position, but the court is not warrant*477ed in substituting a different judgment of its own for that of appellant’s superiors, whose action has been sustained by the Civil Service Commission and the District Court.
The majority, although recognizing the existence and propriety of this standard of review,1 did not apply it in reaching the result that they did.
With the above-stated standard of review in mind, I must reiterate my prior position that if we find that appellant was validly discharged under charge one we must find also that the record supports his discharge under either charge two or three. To differentiate between the three charges based upon speculative considerations, as the majority does, merely serves to obfuscate the issue we are asked to decide. Thus the question, as I see it, is whether the Commission validly discharged appellant because of his conduct.
II
I address myself now to what I consider the crux of the case. After first determining that appellant was validly discharged for conduct unbecoming a police officer, the majority (now joined by a majority of this court sitting en banc) holds today that this case must be remanded for further proceedings (including the introduction of additional evidence) in light of Pickering v. Board of Education.2 Briefly, Pickering involved an Illinois school teacher who was dismissed from his position in Township High School District 205, Will County, Illinois for writing a letter to the local newspaper criticizing the Board of Education’s handling of certain tax proposals.3 The Supreme Court held that his dismissal was violative of his First Amendment right to freedom of speech. More specifically, Pickering’s letter was written basically to protest the spending of money on athletic programs rather than for more educational purposes. It was printed on September 24, 1964, in the tranquil setting of Will County, Illinois, which at that time was neither in the midst of violent uproar nor contemplating severing its relations with its sister states. This then constituted the placid background upon which Pickering’s article was launched.
Juxtaposing the aforementioned background with the setting in which Meehan’s conduct took place, we find that on January 9, 1964, approximately two hundred Panamanian students asked permission to lower the United States flag so that it could be subsequently raised simultaneously with the Panamanian flag. Upon refusal of their request rioting erupted. There were five known deaths, hundreds of people injured, and over $1,500,000 of property damage. The Canal Zone was put under military control until January 16, 1964, and diplomatic relations between the United States and Panama were severed. In light of and because of this tense situation, a meeting was held on February 4, 1964, for the purpose of informing various unions of Government employees, that, in an attempt to ameliorate the situation, the Governor of the Canal Zone intended to add twenty Panamanians to the Canal Zone police force.4 Meehan, as president of one of the unions, was asked to attend. At the meeting all persons were told to confine any objections to the plan to “regular channels” and “not to issue comments which could be used by the local press to inflame further the strained relationship between the United States and Panama.” On February 7, 1964, after agreeing to meet with the press, Meehan expressed his views which ap*478peared in the local press that same day. That article stated in part (J.A. 22):
Panamanians’ loyalty in carrying out these tasks can be questioned. * * *
In addition, he had printed 5,000 copies of an open letter to the public entitled “Dear Friends” which stated in part (J.A. 96):
We do not intend to perpetrate a personal attack on the Honorable Governor of the Canal Zone, for we are aware that he is only * * * an instrument of the boys in the black strip [sic] pants in the State Department, whose major goal since the time of Alger Hiss has been to implement the policy of New Americanism and erase all opinions opposed to their policies.
When the backgrounds and contexts of these two cases are compared I feel that the difference between them is somewhat analogous to the difference between black and white. The majority, however, abandons any crisp analysis of the two cases in favor of casting a grayish hue over the entire situation. At this juncture Judge Danaher’s question to the majority is appropriate — “Do any of my colleagues really believe that the situation thus described * * * come(s) within Pickering * * *?” I feel that the Supreme Court’s opinion answers that question. The Court specifically stated that
[i]t is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal.5
I am convinced that Meehan occupied just such a position. Indeed, Meehan’s conduct is easily distinguishable from that of a private citizen such as Pickering who has no access to confidential information. Such a citizen has the protection of the Constitution when he writes a letter to the editor, publishes a pamphlet or petitions his Congressman. Meehan, however, quite unlike Pickering, is a governmental employee who knowingly exploited his access to confidential government information, thereby thwarting the official policy of the United States in a very sensitive area of foreign policy.
Although the Supreme Court offers no explicit opinion on a dismissal in the above described circumstances, the Court makes it clear that “significantly different considerations would be involved in such cases.” 6 Thus, to me it is beyond doubt that, at the very least, the Supreme Court has said in Pickering that its rationale therein does not control a case such as Meehan’s and is restricted to its own or similar factual situations. In fact, the Court enunciated this restriction in the opinion (391 U.S. at 569, 88 S.Ct. at 1735):
Because of the enormous variety of fact situations in which critical statements by * * * other public employees may be thought by their superiors * * * to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.
Thus, I think that the language in Pickering tells us that it does not purport to govern or affect a situation such as Meehan’s.
With the delimiting language of Pickering 7 in mind, I feel some additional differences between the two cases need be elaborated upon. In Pickering there *479was no question of discipline or harmony among co-workers involved, no close working relationship involving personal loyalty, no prior admonition not to write such an article, and, most importantly, no volatile diplomatic situation in existence. Lastly, the majority seems to give tacit approval to appellant’s argument that because his conduct did not actually cause any injuries or deaths it was therefore permissible conduct. This argument, however, plainly misconceives the applicable law. It is well settled that the Government may punish conduct which creates a “clear and present danger” of a substantive evil. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919); accord, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). In other words, when a person screams “fire” in a crowded theatre he has committed an offense, even though no injuries may result from his action. In the posture of this case the pervasive threat of new outbreaks and violence which hovered over the Canal Zone at that time clearly rendered appellant’s conduct a “clear and present danger” within the meaning of Schenck. Thus, I feel that the differences between appellant and Pickering are manifold. To ascribe to the Supreme Court any intent that Pickering be applied to foreign policy matters or to problems touching upon national security is nothing short of incredible. The restrictive language of Pickering and the multitude of Supreme Court cases confirming the broad latitude given by the Constitution to the Executive and Congress in these areas militate strongly against such a construction.
Ill
■ Addressing myself now to the final aspect of my disagreement with the court, it seems to me that if the majority is going to interpret Pickering as affecting this case (which I am unable to do) it ought to tell the Commission how it affects Meehan’s claim. Today’s nebulous remand is, I feel, closely akin to an abdication of the judicial function. The majority remands for the introduction of additional evidence “in light of Pickering.” I feel compelled to ask— what sort of new evidence? This case has gone through a full administrative hearing, two separate stages of intermediate administrative review, a district court determination, a determination by a panel of this court, and now a hearing by this court en banc. I feel that at this point in this litigation, which has admittedly traversed a lengthy route, all the salient facts have been adduced. The case is certainly ripe for decision upon its present record, which is full and complete. It is my view that Pickering does not affect appellant’s dismissal. The majority thinks that it might, but they do not say how. Instead, they remand for the Civil Service Commission to decide how, and without the elucidation of any standards, guidelines or even vague intimations of how Pickering will affect the merits of Meehan’s claim of wrongful dismissal.
For these reasons I would terminate the litigation at this stage and affirm the decision of the district court.
I am authorized to state that Judge DANAHER and Judge BURGER concur in this opinion.. Meehan v. Macy, 129 U.S.App.D.C. 217, 225 n. 20, 392 F.2d 822, 830 n. 20 (1968).
. 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
. The temperate nature of this letter as compared to appellant’s actions is demonstrated clearly in the appendix to the Court’s opinion in Pickering, 391 U.S. at 575-578, 88 S.Ct. 1731, 20 L.Ed.2d 811.
. The Canal Zone police force had prior to this time consisted solely of United States citizens (J.A. 4).
. Pickering v. Board of Education, supra note 2, at 570 n. 3, 88 S.Ct. at 1735.
. Id.
. Unlike Pickering, the challenged statements here were “directed towards [a] person [his immediate superior] with whom appellant would normally be in contact in the course of his daily work * * 391 U.S. at 569-570, 88 S.Ct. at 1735. Such criticism of a superior, where the working relationship is largely dependent upon loyalty and confidence, impairs the superior’s ability to function, undermines the entire employment relationship, and gravely impairs the governmental activity involved.