concurring in part and dissenting in part:
Although I share my colleagues’ conviction that the District Court must be reversed in this case, I do not believe a remand for further proceedings is either necessary or appropriate; and accordingly, I would simply reverse the District Court.
Section 20(5) of the Interstate Commerce Act provides, in pertinent part:
The Commission or any duly authorized special agent . . . thereof shall at all times have authority to inspect and copy any and all accounts, books, records, memoranda, correspondence, and other documents, of such carriers (Emphasis added.)
On the basis of this broad language, the Commission has asserted an unlimited right to inspect, without specifying what material it wishes to see or why, any file on the premises of a railroad. In particular, special agents of the Commission have sought to examine all the “solicitation” files in the Philadelphia office of appellant Southern Railway.
The seemingly unrestricted grant of inspection authority in § 20(5) has been qualified by judicial construction on several occasions. The most important of these occurred over sixty years ago in United States v. Louisville & Nashville R.R., 236 U.S. 318, 35 S.Ct. 363, 59 L.Ed. 598 (1915). In that case, the Supreme Court held, as a matter of statutory interpretation, that the then-current version of § 20(5) did not permit the Commission to examine “correspondence received or sent by the railroad companies.” 1 236 U.S. at 335, 35 S.Ct. at 369. The Court’s opinion reveals that, although the result was not justified on constitution*1351al grounds, both parties expended considerable energy in discussing possible Fourth Amendment constraints on administrative inspection of corporate documents. The Court’s desire to avoid a potentially thorny constitutional issue may thus explain the Louisville & Nashville dictum on the basic purpose underlying § 20(5). “The primary object to be accomplished was to establish a uniform system of accounting and bookkeeping, and to have an inspection thereof.”2 Id.
The Fourth Amendment foundation for this remark, if such there was, has clearly been eroded by subsequent Supreme Court decisions. See, e. g., United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 369, 94 L.Ed. 401 (1950) (to avoid Fourth Amendment problems, “it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant”). Nevertheless, the Louisville & Nashville Court’s limited assessment of the purpose behind § 20(5) has enjoyed continued currency, most notably in the recent decision of this court in Burlington Northern, Inc. v. I.C.C., 149 U.S.App.D.C. 176, 462 F.2d 280, cert. denied, 409 U.S. 891, 93 S.Ct. 120, 34 L.Ed.2d 148 (1972). See text of majority opinion accompanying note 6.
Joined by three members of the court, Judge Leventhal outlined the reasons why he would have granted rehearing en banc in Burlington Northern. In doing so, he indicated that the Commission’s power under § 20(5) is probably a good deal broader than was suggested in Louisville & Nashville. However, Judge Leventhal cautioned that in no event should the statutory authority be “exercised routinely.” 462 F.2d at 288. In a similar vein, the Seventh Circuit, construing the Civil Aeronautics Board’s inspection authority under a statute nearly identical to § 20(5), held that the Board is entitled to examine any records “reasonably relevant to an investigation the Board is empowered to make”. CAB v. United Airlines, Inc., 542 F.2d 394, 402 (7th Cir. 1976).
In order to resolve the issue now before us, we need not decide whether the Louisville & Nashville appraisal of the purpose of § 20(5) was ill-conceived when originally announced, whether the Burlington Northern panel’s adherence to that view was justifiable in light of intervening developments prior to 1972, or whether, even conceding the accuracy of the Supreme Court’s dictum in Louisville & Nashville, the Burlington Northern application of the Louisville & Nashville precedent was correct on the facts of the later case. The Commission’s claim of an unconditional right to inspect all railroad files could not be sustained even if we as a panel felt free to abandon the “accounting and bookkeeping” limitation on § 20(5) in favor of an approach based on United Airlines, requiring only that an inspection demand be “reasonably relevant to a proper investigative purpose”. 542 F.2d at 402.
Here, the Commission refused to disclose its investigative purpose (if indeed it had one) at the time it sought to examine Southern Railway’s “solicitation” files.3 Throughout this litigation, the Commission has maintained that such disclosure is not a prerequisite to a legitimate inspection demand under § 20(5). The District Court approved the Commission’s position. I do not; nor, as I understand it, does the majority. Under the circumstances, I see no reason for a remand. If the Commission hereafter wishes to make a new — and more informatory — request to inspect documents in Southern’s files, it is free to do so.
. In the Transportation Act of 1920, ch. 91, § 435, 41 Stat. 456, Congress reversed the nar*1351row holding of Louisville & Nashville by amending § 20(5) to make plain that correspondence was included among the materials which the Commission was authorized to inspect.
. In arriving at this conclusion, the Court relied heavily, not on any expression of legislative intent, but rather on an Interstate Commerce Commission report to Congress, urging the adoption of a statute which would allow the Commission “to prescribe a form in which books of account shall be kept by railways”. See 236 U.S. at 332, 35 S.Ct. at 367.
. A fortiori, the Commission refused to specify what materials it wished to see, and in what manner those materials were relevant to the Commission’s investigative purpose.