dissenting.
Viewing as I do, the majority opinion in this case as an unwarranted, and unfortunate, extension of the Big Brother concept into legitimate privacy in the industrial field, I respectfully dissent. While I might have adopted minor differences of phraseology here and there in a dispositive opinion from that used by Judge Holder in his detailed Summary Judgment, those differences are so minimal, and his analysis and legal conclusions appear to me to be so eminently correct, I would adopt that judgment as the judgment of this court. Because Judge Holder’s Summary Judgment is not reported, and although substantial portions thereof have been set forth in the majority opinion of this court, so as to put the case into proper perspective, I am attaching a copy of it to this dissenting opinion.
With all due respect to the obviously careful and thorough draftsmanship reflected in the majority opinion, I am unable to come away from a reading of it without the feeling that it strains to find justification for the Comptroller’s broadsweeping attempt to delve into information in excess of his authority under law. This appears particularly evident in that portion of the opinion falling back for support on 31 U.S.C. §§ 53 and 67, sections of statutes which apparently the Comptroller himself has abandoned as supporting his “claim of right,” and which do not appear as citations in the briefs filed by the Comptroller in this court.
I cannot be unmindful of the contrary holding in Hewlett-Packard Company v. United States, 385 F.2d 1013 (9th Cir. 1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1184, 79 L.Ed.2d 1292 (1968). It pervades on a passim basis both the two briefs of the Comptroller and the majority opinion. That the majority opinion is relying more on the holding of that case than the acuteness or depth of the analysis appears rather clear *919from a comparison of the length of Hewlett-Packard with the majority opinion in the present case. It would seem that the extended and detailed analysis of the majority opinion would scarcely have been necessary if Hewlett-Packard had set forth a persuasively correct analysis. Two federal district judges, of course, in the pharmaceutical context here involved have declined to follow the broad approach which the majority finds in Hewlett-Packard. Bristol Laboratories Division of Bristol-Myers Company v. Staats, 428 F.Supp. 1388 (S.D.N.Y.1977); Merck & Co., Inc. v. Staats, Civil Action No. 74-1447 (D.D.C. Aug. 12, 1977). Even if the majority in the present case were unwilling to accept what they have termed as Judge Holder’s “narrowest reading” of the language involved, it would appear to me that the Bristol and Merck readings should, in any event, have been an appropriate stopping place. I agree with Lilly’s analysis of Hewlett-Packard that the Ninth Circuit’s interpretation of the word “contract” is tortured and that the key words are “directly pertinent.” Hewlett-Packard, of course, did not concern an industry study or alleged improper purpose.
In sum, the judiciary should not give the Comptroller coercive power to pursue quid-nuncish purposes which power has been refused by Congress and which would require private companies to open their records to him to make it easier for him to study the cost and practices of the entire pharmaceutical industry. In the present case, which must be considered and determined on its own particular facts, because neither the negotiations nor the performance of the seven contracts was in any way dependent upon or directly related to, Lilly’s costs of production, profits, or pricing methodology, the records relating to such information cannot, in my opinion, be deemed “directly pertinent” to those contracts, as required by the statutes and contract clause.
APPENDIX
SUMMARY JUDGMENT
This cause is before the Court on the motion of the defendant-intervenor, the United States of America, for summary judgment on its Counterclaim, and the motion of the plaintiff, Eli Lilly and Company, for summary judgment on its Complaint and on the Counterclaim, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court, having considered the pleadings, affidavits, answers to interrogatories and depositions on file, and the briefs filed in support of and in opposition to the motions, and having heard oral argument and being duly advised in the premises, now finds the facts and states its conclusions of law as follows:
I.
Findings of Fact
1. Plaintiff, Eli Lilly and Company (“Lilly”), is a corporation organized and existing under the laws of the State of Indiana with its principal place of business in Indianapolis, Indiana. It is engaged, among other things, in the business of manufacturing drug products and marketing them in intrastate and interstate commerce, including sales to various agencies of the federal government.
2. The defendant, Elmer B. Staats, is the Comptroller General of the United States and is a citizen of a state other than the State of Indiana.
3. This action arises under the laws of the United States, particularly the Armed Services Procurement Act, 10 U.S.C. § 2313(b), and the Federal Property and Administrative Services Act, 41 U.S.C. § 254(c). An actual controversy exists within the jurisdiction of this Court between Lilly and the Comptroller General.
4. The amount in controversy exceeds $10,000.00, exclusive of interest and costs.
5. Lilly initiated this action by filing its Complaint for a declaratory judgment pursuant to 28 U.S.C. § 2201 and for a permanent injunction, asking the Court to declare that a request by the Comptroller General to examine certain records of Lilly exceeds his legal authority and to enjoin the Comptroller General from examining or attempt*920ing to examine those records. The United States of America (“the government”) intervened and filed a Counterclaim for a declaratory judgment and permanent injunction, asking the Court to declare that the Comptroller General has the right to examine the records of Lilly, to enjoin Lilly from preventing the Comptroller General from examining the records, and to direct Lilly to make the records available for examination.
6. The Veterans Administration (“VA”) and the Defense Supply Agency (“DSA”) of the Defense Department awarded certain negotiated fixed-price contracts for "pharmaceutical products to Lilly. The contract numbers, dates of award, contract prices and dates of final payment on the contracts are as follows:
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7. The contracts were awarded to Lilly as a result of Lilly’s submitting a proposal to the agency involved in response to the agency’s solicitation of a proposal from Lilly. With respect to six of the contracts, Lilly was the sole offeror, and the contracting agency awarded the contract to Lilly on the basis of a comparison of Lilly’s offered prices to Lilly’s standard catalog prices for the drugs being purchased. In each case, the contract price was lower than Lilly’s standard wholesale commercial catalog prices. The government, therefore, in every purchase from Lilly acquired Lilly products at prices lower than the going commercial market price for those products.
With respect to the seventh contract (DSA120-74-C-1640), offers were submitted by two companies and the award was made to Lilly because acceptance of the other company’s offer was precluded by the Buy-American Act, and also because the government contracting officer determined that the offered price was fair and reasonable based on the competition received.
The product prices in each of the seven contracts were identical to the prices initially offered by Lilly and were not actually negotiated. The prices in each contract were fixed and were not based on any type of “cost-plus” formula.
Lilly was not required to submit cost or pricing data to the contracting agencies pri- or to the award of any of the contracts, because the product prices in all of the contracts were based either on adequate price competition or on established catalog or market prices of commercial items sold in substantial quantities to the general public, within the exemption provisions of the Truth-In-Negotiation Act [10 U.S.C. § 2306(f)] and, in the case of the VA contract, the exemption provisions of the similar federal procurement regulation [41 C.F.R. § l-3.807-3(a), and (b)]. In addition, each of the contracts is exempt from the Renegotiation Act (50 U.S.C. App. §§ 1211, et seq.) because the contracts were for “standard commercial articles.” 50 U.S.C. App. § 1216(e)(1).
8. Neither the negotiations nor the performance of the seven contracts by Lilly or the government were in any way dependent upon, or directly related to, Lilly’s costs of producing the drugs purchased under the contracts, the profits realized by Lilly, or the methodology by which Lilly establishes its catalog prices for standard commercial articles.
9. Each of the contracts contains an access-to-records clause which provides in pertinent part:
“The Contractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment under this contract * * *, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor involving transactions related to this contract.”
*921That clause was included in the DSA contracts pursuant to the provisions of 10 U.S.C. § 2313(b) which provides:
“(b) Except as provided in subsection (c), each contract negotiated under this chapter shall provide that the Comptroller General and his representatives are entitled, until the expiration of three years after final payment, to examine any books, documents, papers, or records of the contractor, or any of his subcontractors, that directly pertain to, and involve transactions relating to, the contract or subcontract.”
and was included in the VA contract pursuant to the provisions of 41 U.S.C. § 254(c) which provides:
“(c) All contracts negotiated without advertising pursuant to authority contained in this Act shall include a clause to the effect that the Comptroller General of the United States or any of his duly authorized representatives shall until the expiration of three years after final payment have access to and the right to examine any directly pertinent books, documents, papers, and records of the contractor or any of his subcontractors engaged in the performance of and in-' volving transactions related to such contracts or subcontracts. * * *”
10. Lilly has been selling pharmaceutical products to agencies of the United States at least since World War II. The government’s business constitutes a very small part of Lilly’s sales of pharmaceutical products, approximately two percent. The government purchases Lilly pharmaceuticals in basically two ways: (1) on an as-needed basis at or below Lilly commercial wholesale catalog prices, and (2) by solicitation for bids on given quantities of specific products. When the government purchases through solicitations by the Veterans Administration or the Defense Department, the prices to the government are further reduced from commercial wholesale catalog prices, resulting in the government getting Lilly products at prices lower than anyone else.
11. The Comptroller General of the United States appeared before the Subcommittee on Monopoly of the Senate Select Committee on Small Business in 1971. During those hearings, which were concerned with the status of competition in the pharmaceutical industry, the costs of drugs procured by the government were discussed at length. Upon learning of the existence of the access-to-records clause in negotiated contracts, the Chairman of the Subcommittee stated to the Comptroller General:
“I realize it may be a very complicated matter, but it would seem to me that all companies ought to be served notice that the GAO is going to utilize this statute. I think that we ought to take a look at some of those costs.” Hearings on Competitive Probiems in the Drug Industry, supra, at 8020. (Emphasis added.)
12. Following those hearings, a series of conversations were held between members of the Chairman’s staff and GAO officials. These conversations, as reflected in the contemporary correspondence of the participants, reveal most clearly the character of the government’s interest in pharmaceutical industry cost records. Cost and profit data was to be obtained about individual drugs and about individual drug companies. That information would then be publicly released. Specifically, a subcommittee staff preference was expressed that “rather than attempt to obtain such costs records under an arrangement that would preclude reporting of manufacturing firm name or identifying individual drug items,” it was preferable “to press for obtaining such records without any strings attached so that the high profits could be publicized by product and firm”. As recently as April 29, 1974, it was stated that the only way the GAO could serve the Subcommittee’s objectives “will be to gather and publicize specific price and cost data for individual products — particularly those for which competition is limited and price mark-ups are high”. The Chairman’s staff told the GAO that it “should obtain the cost records without any strings attached so that the information could be used as needed.” The Subcommittee’s avowed purpose for wanting *922industry and company cost data has continued to date and the GAO admits to knowing of no change in the Subcommittee’s intended use of the data sought.
13. The GAO thus proceeded to seek access to drug companies’ records because, in light of the Subcommittee’s demands, “it appears from a long-range Office viewpoint that there is no viable alternative than to press the companies for access to their cost data.” The GAO believed that if it gained access to the cost records, it “would obtain cost data of some sort on individual drug items with unusually high profit history that could be used to direct public attention to an individual item and an individual drug manufacturer.” Although the GAO considered alternative studies which would not result in the identification of costs of individual drugs and individual drug companies, it stated that one disadvantage of those alternatives was that “Congressional committees concerned with unit costs would not be satisfied.” As late as July, 1974, the GAO again considered one such alternative using a third-party to do the examination of the records, but there was “considerable concern as to whether such an arrangement would be acceptable,” to members of the Senate Committee.
14. In order to satisfy the interest of the Subcommittee and at the same time make an economic study of the pharmaceutical industry, the GAO initially sought access to drug companies’ cost records on a voluntary basis. In late 1972, the GAO approached the Pharmaceutical Manufacturers Association (“PMA”) and requested its member firms to participate in a study of the pharmaceutical industry, its production process, efficiency, costs and profits. This initial proposal was rejected because it was not feasible and because the confidentiality of the drug companies’ data would not be protected. The GAO then modified its objectives by June, 1973, and proposed a revised study to be conducted in two phases.
15. In Phase I of that study the GAO intended to learn the general nature, peculiarities and problems of the pharmaceutical industry, focusing specifically on manufacturing processes, accounting systems, and marketing policies, and to select the areas to be studied in depth in Phase II. Phase I was to include visits to the facilities of the cooperating pharmaceutical companies.
16. Lilly and five other pharmaceutical companies volunteered to participate in Phase I with the understanding that access to detailed cost records pertaining to specific products would not be granted. During October, 1973, GAO officials visited and inspected Lilly’s facilities and operations in Indianapolis and consulted at length with a number of Lilly officials. The GAO also made similar visits to the five other cooperating pharmaceutical companies.
17. On March 21, 1974, GAO met with representatives of the six cooperating companies to present and discuss its preliminary Phase I findings. On or about April 17, 1974, GAO issued the Phase I report in written form and a proposal for Phase II. Detailed and specific comments on the GAO report were submitted by PMA on behalf of the six cooperating companies, and separate comments were also submitted by the individual cooperating companies, including Lilly-
18. The Comptroller General, following the receipt of the critical comments upon his Phase II proposal, decided to abandon the plan of obtaining the drug companies’ records on a voluntary basis. In August, 1974, the Comptroller General sent demand letters to the six drug companies who had volunteered to cooperate during Phase I asking for access to their cost and pricing records on individual products purchased under specified contracts. The demand letters were released only after the GAO conferred with the Committee Chairman and obtained his approval. Moreover, after the letters were sent, the GAO has had continued correspondence with the Chairman in order to report the status of its attempt to gain access to the drug companies’ cost records.
19. The Comptroller General’s demand letter to Lilly dated August 26,1974, claims authority under the access-to-records clause in the seven negotiated contracts described *923in paragraphs 6-9 hereof. The letter begins:
“As you know, because of the increasing Federal involvement in the procurement of pharmaceuticals, the General Accounting Office has underway a review of the procurement of drugs by agencies of the Federal Government, including the pricing of drugs and pharmaceuticals procured under negotiated contracts. This examination is being conducted at several drug companies, including Eli Lilly and Company * * *.
“For some time we have been attempting to gain access to records we consider necessary to conduct such a review. In this regard, in June 1973 we met with representatives of the Pharmaceutical Manufacturers Association and six drug firms to initiate a comprehensive review using data provided on a voluntary basis by representative industry firms. However, the industry firms have not provided us access to the records necessary to satisfactorily carry out our statutory responsibilities.”
The Lilly records to be examined are described as:
“ * * * all books, documents, papers, and other records directly pertinent to the contracts, which include, but are not limited to (1) records of experienced costs including costs of direct materials, direct labor, overhead, and other pertinent corporate costs, (2) support for prices charged to the Government, and (3) such other information as may be necessary for use to review the reasonableness of the contract prices and the adequacy of the protection afforded the Government’s interests. * * * ”
20. The government concedes that there is no reason to believe that Lilly did anything illegal, improper or fraudulent in the negotiation or performance of the seven contracts involved in this suit. The government concedes that there is no reason to believe the government was induced by Lilly to enter into any contract here involved or to agree to any term of any such contract as a result of Lilly’s failure to disclose information required to be disclosed at the time of contracting. The government also concedes that Lilly was not required to submit any cost or pricing data at the time these contracts were entered into. Specifically with respect to the DSA contracts, cost and pricing data were not required because the agency had determined that the contract price for one such contract was based upon adequate price competition and that the contract prices of the remaining such contracts were based on established catalog or market prices of commercial items sold in substantial quantities to the general public. With respect to the VA contract, cost and pricing data were not required because the purchasing agency had determined that the contract price was based on established catalog or market prices of commercial items sold in substantial quantities to the general public.
21. Further, the government concedes that its purpose is not to audit Lilly’s negotiations and performance of the contracts involved in this suit. It was asked and responded to Lilly’s Interrogatory 12 as follows:
“Plaintiff’s Interrogatory No. 12
“Is the sole purpose of the requested examination of Lilly’s books and records to audit Lilly’s negotiations and performance of the contracts involved in this suit? If the answer is in the negative, state all the purposes for which the requested examination is sought?
“Answer to Interrogatory No. 12
“The sole purpose of the requested examination of Lilly’s books and records is not to audit Lilly’s negotiations and performance of the contracts involved in this suit. Rather, the purpose of the requested examination, as presently contemplated, is to review contract pricing by the Government’s suppliers, including Lilly, of drug items to determine the adequacy of the protection afforded the Government by the negotiation techniques used by the procuring agencies. Accomplishment of this objective is contingent upon GAO’s ability to gain access to the records needed to (1) ascertain the nature of *924the activities for which the drug firms are incurring costs, (2) to ascertain and verify the extent to which the costs of these activities affect the prices paid by the Government for items procured under the specified negotiated contracts, and (3) to determine the bases of firms’ pricing considerations for the products and, particularly, the applicability of these considerations to any Federal procurement of the products involved.”
22. The government also admits that one purpose of its study “is to have a better public understanding and legislative understanding of the economics of the industry.”
23. Lilly has refused to comply with the Comptroller General’s demand lettér of August 26,1974, on the ground that the Comptroller General’s demand exceeds his authority under the access-to-records clause and statutes, for two reasons: (a) the request is being made for an improper purpose; and (b) the records requested do not directly pertain to, and involve transactions relating to, the seven particular contracts involved in this suit.
24. Among the major items of cost incurred by Lilly in producing and marketing its pharmaceutical products, including those sold to the government, are general administrative costs, marketing costs, and research and development costs. These major items are not assigned or allocated to individual pharmaceutical products or sales contracts under Lilly’s accounting system and no generally accepted accounting principle exists for making such an allocation of those types of indirect costs to specific products or specific contracts.
25. The records of Lilly which the Comptroller General seeks to examine contain confidential business information and secrets, and Lilly would, if such information were made public, suffer irreparable competitive injury in excess of $10,000.00.
II.
Conclusions of Law
1. The Court has jurisdiction over the subject-matter of this action and personal jurisdiction over the parties.
2. There is no genuine issue or substantial controversy as to the existence of the aforesaid material facts.
3. The Comptroller General’s August 26, 1974, demand for access to Lilly’s records exceeds his authority under the access-to-records clause in the contracts and under the statutes, 10 U.S.C. § 2313(b) and 41 U.S.C. § 254(c), because the Comptroller General is using that authority for a purpose which neither the contract clauses nor the statutes were designed to serve, namely, for the purpose of conducting a research study on the economics of the entire pharmaceutical industry. Any administrative authority to investigate may be exercised only for a purpose for which the authority is granted. Burlington Northern, Inc. v. Interstate Commerce Comm’n, 149 U.S.App.D.C. 176, 462 F.2d 280 (1972), cert. denied 409 U.S. 891, 93 S.Ct. 120, 34 L.Ed.2d 148 (1972); Chattanooga Pharmaceutical Ass’n v. United States Dep’t of Justice, 358 F.2d 864 (6th Cir. 1966); Shasta Minerals & Chemical Co. v. Securities & Exchange Comm’n, 328 F.2d 285 (10th Cir. 1964); Montship Lines, Ltd. v. Federal Maritime Board, 111 U.S.App.D.C. 160, 295 F.2d 147 (1961). Here, the purpose of the Comptroller General’s access-to-records authority under negotiated contracts is to permit audits of the negotiations and performance of particular contracts awarded by negotiation. Congress has not given the Comptroller General coercive power to require private companies to participate in research projects undertaken by the GAO pursuant to 31 U.S.C. § 53 or otherwise, and his limited authority under the access-to-records clause in negotiated contracts cannot be used for such a broad purpose. United States v. Humble Oil & Refining Co., 488 F.2d 953 (5th Cir. 1974), vacated, 421 U.S. 943, 95 S.Ct. 1670, 44 L.Ed.2d 97 (1975), on remand, 518 F.2d 747 (5th Cir. 1975).
Moreover, construing the Comptroller General’s limited access authority under negotiated contracts to permit access for an investigation of an entire industry would raise serious constitutional questions be*925cause of the Fourth Amendment’s requirement that an administrative agency’s demand for corporate records be relevant in purpose. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Therefore, the Comptroller General’s authority must be narrowly construed to limit the right of access to the purpose for which the right was granted, namely, to audit particular negotiated contracts. United States v. Humble Oil & Refining Co., supra; Civil Aeronautics Board v. United Airlines, Inc., 399 F.Supp. 1324 (N.D.Ill.1975).
4. The Comptroller General’s August 26, 1974, demand for access to Lilly’s records also exceeds his authority under the access-to-records clause and statutes because the categories of records described in that request do not directly pertain to, and involve transactions relating to, the particular contracts involved in this suit. Since each of the contracts was a fixed-price contract awarded to Lilly solely on the basis of competitive bids received or a comparison of Lilly’s offered price with its standard catalog price, and since each contract was exempt from the Truth-In-Negotiation Act and Renegotiation Act, neither the negotiations nor performance terms of the contracts were in any way dependent upon, or directly related to, Lilly’s costs of production, profits or methodology by which Lilly establishes its prices, including its standard catalog prices. Therefore, records relating to those types of information do not directly pertain to, and involve transactions relating to, the particular types of negotiated contracts involved in this suit.
In addition, even if cost and pricing records were deemed relevant to these types of negotiated contracts, the Comptroller General’s demand in this case still exceeds his authority because the demand is too broad. The request for records relating to Lilly’s pricing would encompass records relating to the methods by which Lilly establishes its standard catalog prices. Those catalog prices, however, were necessarily set without regard to the particular contracts involved in this suit. Likewise, the Comptroller General’s request for cost records encompasses records relating to non-alloeated and non-allocable costs, including general administrative costs, marketing costs, and research and development costs, which Lilly does not assign or allocate to particular products or contracts, and which are incurred without relation to a particular product or contract. Therefore, the Comptroller General’s demand encompasses pricing and cost records which are not directly pertinent to, and do not involve transactions relating to, the particular products purchased under the particular contracts involved in this suit.
5. Lilly is entitled to a judgment as a matter of law on its Complaint and on the government’s Counterclaim.
6. Lilly is entitled to a permanent injunction enjoining the Comptroller General, his agents, servants, employees and attorneys, and all persons in active concert or participation with them, from examining or attempting to examine the records of Lilly described in the Comptroller General’s demand letter of August 26, 1974.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED THAT:
(1) The motion for summary judgment of the defendant-intervenor, the United States of America, be, and the same hereby is, denied.
(2) The motion for summary judgment of the plaintiff, Eli Lilly and Company, be, and the same hereby is, granted in all respects.
(3) The Comptroller General’s August 26, 1974, demand .to examine Lilly’s records exceeds his legal authority under 10 U.S.C. § 2313(b) and 41 U.S.C. § 254(c) and the access-to-records clauses in the seven contracts involved in this suit. Under that authority, the Comptroller General has the right to examine Lilly’s contract files on the specified contracts and other records which would enable the Comptroller General to determine:
(a) Lilly’s standard catalog prices for the products purchased under the specified contracts;
(b) That the prices of the products purchased were based upon established catalog or market prices of commercial items sold in substantial quantities to the general public; and
*926(c) That the prices received by the government under the contracts were equal to or less than the catalog prices.
The Comptroller General has no right to examine records of Lilly under 10 U.S.C. § 2313(b) and 41 U.S.C. § 254(c) or under the access-to-records clauses now before the Court, including particular Lilly cost records and pricing records, except those records referred to above.
(4) The Comptroller General, his agents, servants, employees and attorneys, and all persons in active concert or participation with them, are permanently enjoined from examining or attempting to examine Lilly records, except those specified above, under 10 U.S.C. § 2313(b) and 41 U.S.C. § 254(c) and under the access-to-records clauses now before the Court.
(5) The Counterclaim of the defendant-intervenor, the United States of America, be, and the same hereby is, dismissed.
(6) Costs be assessed against the defendant and defendant-intervenor.