concurring in part and dissenting in part:
I fully join the majority’s opinion insofar as it disposes of the claims raised by defendant McCann on appeal. I also agree with the majority insofar as it disposes of the claims raised by defendant Herman save his claim that his rights were violated when the government refused to request immunity for certain witnesses whom he wished to call, but who declined to testify because of their fifth amendment privilege. The majority reviews this “immunity” claim and concludes that Herman’s constitutional rights were not violated. I have grave doubts as to whether the majority has set forth the proper standard of constitutional review for such cases. Nevertheless, I recognize that there is little point in discussing the constitutional issues presented by this case, for I am convinced that Herman’s claim can and should be disposed of on statutory grounds. As set forth below, I think that the federal use immunity statute, 18 U.S.C. §§ 6001-05 (1977), should and must be construed as allowing judicial review for abuse of discretion when a United States Attorney refuses in appropriate circumstances to exercise his discretionary power to seek immunity for defense witnesses. Because this is the first time such a standard of review has been suggested by this Court, I would remand to the district court for application of this standard to the present case.
I.
Herman, an elected district magistrate of the Pennsylvania judiciary, was convicted of accepting kickbacks on bond premiums received by the Levitt Agency, a Pittsburgh bail bonding business, in violation of the substantive and conspiracy provisions of the Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. § 1962(c), (d). During the course of his defense, Herman served subpoenas on six of the constables formerly employed in his office to obtain their testimony on his behalf. However, at least four of these constables, in person or through their attorneys, informed the court that they would assert their fifth amendment rights if questioned about their receipt of funds from the Levitt Agency.1 The district court judge held a hearing on this matter outside the presence of the jury, and evidence was proffered by Herman’s counsel of the testimony of the four constables before the grand jury and during certain FBI interviews. This testimony indicated that the constables had indeed received kickbacks from the Levitt Agency, but that they had not shared these kickbacks with Herman, and that they had not informed Herman of this illegal activity. The constables would have testified to this effect at trial had they not asserted their fifth amendment privilege. Such clearly exculpatory testimony would have provided a substantial defense that any kickbacks made by the Levitt Agency to Herman’s office were divided among the constables without Herman’s knowledge or participation. However, the district court judge declined Herman’s request that the court require the government to afford immunity to these constables so that they might testify in Herman’s defense.
*1206II.
The majority meets Herman’s contention that the government should have conferred use immunity on the constables by discussing the constitutionality of the government’s refusal to request immunity. Implicit in the majority’s position is the understanding that the exercise of the government’s discretionary power conferred by the immunity statute may be reviewed for compliance with constitutional mandates. With this I agree. Based on the Supreme Court’s decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and this Court’s decisions in United States v. Inmon, 568 F.2d 326 (3d Cir. 1977), and In re Grand Jury Investigation, 587 F.2d 589, (3d Cir. 1978), the majority also acknowledges that “a case might be made that the court has inherent authority to effectuate the defendant’s compulsory process right by conferring judicial [] immunity upon a witness whose testimony is [necessary] to an effective defense.” Maj. Op. at 1204. I think that the majority is correct in this acknowledgement, and in reasoning that “a case in which clearly exculpatory testimony would be excluded because of a witness’ assertion of the fifth amendment privilege would present an even more compelling justification for such a grant than that accepted in Simmons itself.” Id.
Having come this far with the majority, I must express my reservations as to their articulation of the constitutional standard to be applied in reviewing the government’s failure to request immunity. To establish a due process violation entitling a criminal defendant to a court-ordered grant of statutory immunity, the majority states that “[t]he defendant must be prepared to show that the government’s decisions [in withholding immunity] were made with the deliberate intention of distorting the judicial fact finding process.” Maj. Op. at 1204.2 Finding in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), “hints of a due process right to have clearly exculpatory evidence presented to the jury .,” Maj. Op. at 1204, the majority then states in dictum that “[w]here the prosecution’s interest in withholding immunity was merely formal, the Chambers rationale might perhaps permit a [judicially fashioned nonstatutory] grant of immunity.” Id. at 1204 n.13. I believe the majority’s latter formulation of the due process standard is closer to the fair trial concepts developed by the Supreme Court, for I do not think that a due process violation in the present context should require the defendant to prove the subjective bad faith of the government in order to establish his due process claim. No such requirement was imposed in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), where the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” This understanding of Brady is confirmed by the decision in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), where the Supreme Court established different standards of constitutional materiality applicable to different types of Brady violations. The Court specifically stated: *1207427 U.S. at 110, 96 S.Ct. at 2400 (footnote omitted). In accordance with Brady and Agurs, I would find due process precepts offended when the government’s failure to request immunity for a defense witness resulted in such a distortion of the fact finding process as to deny the defendant a fair trial, irrespective of whether or not this result was intended by the government.3
*1206“Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. ... If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”
*1207Nor is it apparent to me from the majority’s opinion whether the majority views the sixth amendment’s compulsory process guarantee as entirely congruent with the due process guarantee in this type of case. Substantial arguments have been made that a criminal defendant’s compulsory process rights must be weighed independently against an otherwise valid governmental interest that would prevent the criminal defendant from presenting exculpatory evidence at trial. See Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567 (1978); Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71 (1974); Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv.L.Rev. 1266 (1978). Cf. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (dicta that balancing test would be employed in reconciling criminal defendant’s compulsory process rights with claim of presidential privilege). Because of the way in which I think Herman’s claim should be treated by this court, however, I do not find it necessary to address these troublesome constitutional issues.4
III.
It is well understood that a federal court should first decide a litigant’s nonconstitu-tional claims if this would obviate the need for a constitutional adjudication. Effect was given to this principle in Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), where the Supreme Court disposed of that case on pendent state law grounds rather than im*1208pose a constitutional adjudication. The same principle has been invoked where a court is confronted with both federal statutory and constitutional claims. Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); California Human Resources Department v. Java, 402 U.S. 121, 124, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971); Dandridge v. Williams, 397 U.S. 471, 475-76, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The weight to which this principle is entitled has recently been acknowledged in Allen v. Aytch, 535 F.2d 817, 819-20 (3d Cir. 1976), where this Court stated:
It is well established that federal courts will not pass upon a constitutional question if the issue presented in a case may be adjudicated on a nonconstitutional ground. That is also true where . the nonconstitutional basis for the decision was neither raised in the pleadings nor ruled upon by the lower court.
See Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), cert. denied,-U.S.-, 98 S.Ct. 3122, 52 L.Ed.2d 1147 (1978).
In this case, it is my opinion that Herman has a viable claim based on the federal use immunity statute. This statute, under the construction which I set out below, would allow a federal court to review, on other than constitutional grounds, the government’s discretionary decision not to request immunity for a defense witness. I therefore turn to consideration of Herman’s statutory claim since, in this case, I believe it may render unnecessary a constitutional adjudication.
IV.
The current federal immunity statute is codified at 18 U.S.C. §§ 6001-05 (1977).5 Unlike its predecessors,6 it authorizes a *1209grant of use immunity rather than transactional immunity. An immunized witness may thus be prosecuted for crimes as to .which he testifies, provided the government in its prosecution makes no use of the immunized testimony or of evidence derived therefrom. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. Apfelbaum, 584 F.2d 1264 (3d Cir. 1978) petition for cert.F.6d, 47 U.S.L.W. 3437 (U.S., Jan. 2, 1979). The statute empowers a United States Attorney 7 to obtain use immunity for an individual when “(1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.” Id. at § 6003(b).
As is apparent from the statutory text, the keystone to a United States Attorney’s request for immunity is whether such a request will serve the public interest in terms of a full and fair presentation of evidence at trial. Neither the text nor the legislative history, however, fully clarifies what role, if any, the court has in this public interest determination. Once an immunity request has been made, the legislative history teaches that “[t]he court’s role in granting the [immunity] order is merely to find the facts on which the order is predicated. H.R.Rep.No.91-1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News, pp. 4007, 4017 (1971). See Sen.Rep.No.91-617, 91st Cong., 1st Sess. (1969). In short, the Court’s role in this situation is no more than ministerial. But this does not, of course, indicate the court’s function when the government refuses to request, rather than applies for, immunity. Although the concept of separation of powers imposes certain constraints on judicial review of executive action, I believe that a court has power to review a United States Attorney’s use of his discretionary authority in refusing to seek immunity for a defense witness. The proper standard of review, I conclude, is whether or not the United States Attorney has abused his discretion.8
A.
Under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06 (1977), the United States Attorney would appear to come within the definition of an “agency” for purposes of the review afforded by that statute. “Agency” is there defined as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . .” 5 U.S.C. § 701(b)(1).9 In giving practical content to *1210this definition, it has been stated: “The authority to act with the sanction of government behind it determines whether or not a governmental agency exists. The form the agency takes, or the function it performs are not determinative of the question of whether it is an agency.....” Lassiter v. Gay F. Atkinson Co., 176 F.2d 984, 991 (9th Cir. ,1949). See Amalgamated Meat Cutters and Butcher Workmen v. Connally, 337 F.Supp. 737 (D.D.C.1971) (three judge court) (President is “agency” within meaning of APA).10
The Administrative Procedure Act, 5 U.S.C. § 704, provides: “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to review.” This section must be read together with § 701(a), which delineates the scope of the Judicial Review Chapter of the Administrative Procedure Act as follows: “This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” In this case, neither the text nor legislative history of the immunity statute specifically provides for or precludes review. In such a circumstance, this Court should make its own determination as to whether the United States Attorney’s power to request immunity for a defense witness has been so far committed to his discretion as to preclude judicial review altogether.11 Undoubtedly, this inquiry is an appropriate judicial function.
The presumption of judicial review in the face of statutory silence has become a part of the fabric of the Administrative Procedure Act. See Barlow v. Collins, 397 U.S. 159,166, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Against this presumption, important considerations for nonreviewability must be raised in order to bar a judicial examination. Two principal reasons are generally thought to preclude review. The first — an apparent legislative intent to preclude review — is not applicable here. Nor do I think that the second reason for precluding review — that the issue as to which review is sought is deemed inappropriate for judicial attention — entirely bars review in this case.
B.
In the core ease in which the government requests immunity for a prosecution witness the court’s role, as previously acknowledged, is merely ministerial. It is to determine the facts upon which the immunity request is predicated. Once having determined that the statutory requirements have been met, immunity must be granted as a matter of course. I do not contend for any form of judicial review when the government decides either to seek or not to seek immunity for a government witness. The limited province of the court in this circumstance, as the majority points out, is compelled by the constitutional doctrine of separation of powers. See Maj. Op. at 1200-1202. In formulating and prosecuting its case, the government must be relatively unconstrained in its deployment of resources. The choice of whom to prosecute and the strategy of prosecution are generally matters left wholly to the government’s control. Rarely do these determinations have an impact on the fairness or reliability of proceedings before the court. While a grant of immunity for a government witness might be expected to bolster the government’s case; the failure to seek immunity for a government witness cannot be said to affect the fairness of the trial process. The government in either event will bear the burden of proof beyond a reasonable doubt as to all elements of the crime *1211charged. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, since these determinations are largely internal to the executive branch, there is little reason to suspect that they will not accurately reflect the public interest. For these reasons, the judiciary must accept the limited function that Congress intended for the courts in the implementation of the immunity statute.
The analysis is quite different, however, when it is the criminal defendant, and not the government, who desires immunity for a witness. The defendant has no authority to confer such immunity. Rather, the defendant must hope that the government will exercise its statutory authority to obtain immunity for the witness whose testimony the defendant desires. In such a situation, the court must be concerned with the public- interest determination and exercise of discretion of the United States Attorney. First, there is an obvious conflict of interest between the government and the criminal defendant. On this basis alone, a court must be suspicious of the government’s refusal to grant immunity to a witness who seemingly has relevant, probative, and exculpatory testimony to offer. Second, if a criminal defendant’s only exculpatory witness does not testify because of his fifth amendment privilege, the fact-finder will be denied evidence highly probative of the guilt or innocence of the defendant. Not only will the trial process be less accurate and reliable, but it will be less fair because the defendant will have been prevented from fully presenting the case for his innocence. In this circumstance, I do not believe that we can presume that Congress has denied the judiciary review over the actions taken by an executive agency— the United States Attorney.
The type of judicial review that I have outlined constitutes no cognizable impairment of the concept of separation of powers. Since the United States Attorney’s decision not to seek immunity for a defense witness will implicate the quality of the judicial process, the judicial branch has a keen interest in assuring that the discretionary power to grant immunity is not abused. Furthermore, a grant of immunity to a defendant’s witness would not substantially affect the government’s initial investigation and preparation of its case against the defendant. Of course the government may choose to respond to the testimony offered by a defendant’s immunized witness, but it need not do so. And in any event, responding to defenses raised by a criminal defendant is something the government must do in the course of any criminal prosecution. The grant of immunity may concededly have some effect on the government’s ability subsequently to prosecute the immunized witness. Although this factor is deserving of consideration, the Supreme Court has emphasized that “immunity from use and derivative use ‘leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege’ in the absence of a grant of immunity.” Kastigar v. United States, 406 U.S. at 458-59, 92 S.Ct. 1664. Since the grant of use immunity will not necessarily impair subsequent prosecution of an immunized witness, I conclude that separation of powers concerns are not so fundamentally trenched upon as to preclude judicial review of the government’s refusal to seek immunity for a defense witness.
The majority, however, persists in claiming that the standard of review I propose somehow transgresses the concept of separation of powers.12 See Maj. Op. at 1200— *12121202. Cited in support of this proposition are Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), and In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (1962). Both cases involved the validity of contempt convictions imposed because each contemnor refused to testify before a grand jury concerning his membership and that of others in the Communist Party after each had been granted immunity under the Compulsory Testimony Act of 1954.13 In each instance, it was held that a district court does not have discretion to deny an immunity request made by the government on the ground that the public interest does not warrant it — a holding with which I heartily concur. Neither decision, however, addresses the issue or precludes the result that I contend should obtain where the government refuses to seek immunity for a defense witness. I fully acknowledge, as those cases hold, that a court’s role is ministerial when the government asks for immunity for a witness. This is true both when the government requests immunity for a witness in a criminal prosecution and when it requests immunity so that a witness will testify before a grand jury. But my thesis is that these situations are clearly distinguishable from the instant case, for when the government refuses to grant immunity to a defense witness, its action necessarily affects the reliability and fairness of the trial itself. In addition, Ullman and Bart are inapposite because the Compulsory Testimony Act of 1954 provided for “transactional” immunity rather than “use” immunity. It cannot be disputed that a grant of “transactional” immunity, as distinguished from “use” immunity, threatens a significantly greater judicial inroad on prosecuto-rial authority, if such judicial intrusion is permitted. Here, of course, we are concerned only with a grant of “use” immunity.
C.
The foregoing reasons compel me to interpret the current use immunity statute as permitting judicial review of a United States Attorney’s failure to seek immunity for a defense witness.14 By not seeking immunity, the United States Attorney has determined sub silentio that this course is in the public interest. Such a determination, I *1213would hold, is subject to review for abuse of discretion. This limited scope of review constitutes, to my thinking, the minimal intrusion on the executive branch necessary to maintain the integrity of the trial process in this circumstance.
However, I would impose on the criminal defendant the threshold burden of not only demonstrating that the witness he wishes to call is available and willing to testify, but that the testimony to be presented is in fact exculpatory. I would require this to be shown by clear and convincing evidence. To carry this burden, it would not be sufficient if the evidence were merely cumulative of previously introduced evidence, or if it went merely to the credibility of the government’s witnesses. The government would then have the opportunity to rebut the criminal defendant’s showing and to introduce evidence as to why the public interest would be disserved by such a grant of immunity. This evidence might include such factors as the desirability and viability of a subsequent prosecution of the immunized witness. All of these factors would be weighed by the court in determining whether the United States Attorney’s refusal to. seek immunity constituted an abuse of discretion.
V.
Having argued that a federal court may review a United States Attorney’s decision not to seek immunity for a defense witness, I now turn to the remedy that a court may afford if an abuse of discretion is found. It is common ground that the federal use immunity statute does not confer on federal courts the power to grant immunity to trial witnesses. See United States v. Garcia, 544 F.2d 681 (3d Cir. 1976); United States v. Housand, 550 F.2d 818 (2d Cir.), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977).
Nonetheless, it is apparent to me that the court has power to provide the relief which Herman seeks. If the government abused its discretion in refusing to seek immunity for Herman’s witnesses, the government attorney should be informed that a judgment of acquittal may be entered in the defendant’s favor unless the government requests immunity. This is exactly the relief that was ordered in United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), where the court found that the government attorney’s threats directed toward the defendant’s witness denied the defendant his sixth amendment and due process rights. The fact that Morrison involved a constitutional violation is not material as to the scope of the court's power to afford this remedy. So much was determined in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), where the court, under its supervisory power and not as a matter of constitutional interpretation, required that the government turn over to the defendant certain materials relating to the testimony of government witnesses. The court held that the government would be put to the choice of making these materials available or causing the prosecution to be dismissed:
“The burden is the Government’s, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government’s possession.” Id. at 672, 77 S.Ct. at 1015.
I would put the government to the same choice if its refusal to grant immunity to a defense witness would otherwise amount to an abuse of discretion. This is fully consistent with my concept of separation of powers, for it amounts to the minimal intrusion on the power of the executive branch necessary to vindicate the court’s interest and the criminal defendant’s interest in the presentation of all evidence significantly relevant to the accuracy and fairness of the trial process.
VI.
Having concluded that (1) a federal court may review a United States Attorney’s discretionary refusal to request immunity for a defense witness after an appropriate showing has been made, (2) that the proper *1214standard of review in such a case is whether there has been an abuse of discretion or a violation of the constitution, and (3) that the proper remedy exists when discretion has been improperly exercised, I would remand this case for review by the district court in accordance with these instructions and under these standards. Because this is not the disposition decided upon by the majority, I am forced to dissent.
. Pending indictments against the constables have been dismissed without prejudice. Although the government’s extensive investigation of corruption with respect to bail bonding practices in the Pittsburgh area has apparently been completed, the government has shown little interest in prosecuting the constables at some future date. Nonetheless, if these constables were to be given use immunity, it would be a simple matter for the government to place the evidence that it currently holds under seal in order to establish readily at a subsequent prosecution of the constables that the evidence was not derived from their immunized testimony. Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv.L.Rev. 1266, 1274-77 (1978).
. Having specified what it considers to be the applicable standard of constitutional review, the majority then concludes that “[n]o such finding [of a constitutional violation], however, is possible in this case.” Maj. Op. at 1204. I think it would be more appropriate to remand this case so that the district court could make this determination in the first instance. The district court certainty committed no error in proceeding as it did when Herman first requested that the constables be immunized, for this Court had not as yet clearly announced the proper standard of review for such cases. Now that this Court has specified a standard, it should be left for the district court’s initial application.
. Although United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), can be read as a “remedial decision” resting on rationales of deterrence and reparations following a finding of prosecu-torial misconduct, see Maj. Op. at 1200, I do not understand Morrison to require a showing of any malevolent intention on the part of the prosecutor. Faced with a finding by the district court that the United States Attorney’s actions were undertaken in good faith, the court in Morrison stated:
The good faith of the Assistant United States Attorney would be relevant if he were charged with violation of 18 U.S.C. § 1503 which makes the intimidation of a federal witness a criminal offense. It is not, however, relevant to an inquiry into whether a defendant was denied his constitutional right. 535 F.2d at 227. (emphasis in original).
The evidence that the defendant wished to present in Morrison was clearly crucial to his case, for it appears that the “defendant . . . and his lawyer planned his defense around the testimony of [the witness discouraged from testifying by the government], who allegedly was prepared to swear that it was she and not [the defendant] who had been involved in the conspiracy to sell hashish.” Id. at 225. Thus Morrison is in no way inconsistent with the discussion and proposals expressed in this dissent.
. In a series of cases, this Court has rejected without extensive consideration the argument that a criminal defense has a general sixth amendment right to have immunity conferred on defense witnesses. See United States v. Rocco, 587 F.2d 144 (3d Cir. 1978); United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978), cert. denied,-U.S.-, 99 S.Ct. 567, 58 L.Ed.2d - (1978); United States v. Berrigan, 432 F.2d 171, 190 (3d Cir. 1973). I do not think that these cases foreclose the result which I contend should obtain here. First, these cases considered only a defendant’s constitutional claim and not the statutory issues which I address. Second, in none of these cases was a record developed comparable to the record here.
I recognize that other circuits have also held that a criminal defendant has no general constitutional right to have immunity conferred on his witnesses. See e. g., United States v. Beasley, 550 F.2d 261, 268 (5th Cir.), cert. denied, 434 U.S. 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977); United States v. Bautista, 509 F.2d 675 (9th Cir.), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); United States v. Smith, 542 F.2d 711 (7th Cir. 1976); In re Kilgo, 484 F.2d 1215 (4th Cir. 1975). I cannot help but think, however, that we have not heard the last word on this issue. See State v. Broady, 41 Ohio App.2d 17, 321 N.E.2d 890 (1974); United States v. Leonard, 161 U.S.App.D.C. 36, 81, 494 F.2d 955, 985 n.79 (1974) (Bazelon, C. J., concurring in part and dissenting in part).
. § 6003, which prescribes the procedure by which a grant of immunity is conferred on a witness, reads as follows:
§ 6003. Court and grand jury proceedings
(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment—
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
The scope of the immunity grant — prohibiting the use of testimony and evidence derived therefrom in a subsequent prosecution against the witness — is set forth in § 6002:
§ 6002. Immunity generally Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
. The antecedents of the current immunity statute have been thoroughly discussed in a number of sources. See Kastigar v. United States, 406 U.S. 441, 443-47, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Note, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 Yale L.J. 1568 (1963); Wendel, Compulsory Immunity Legislation and the Fifth Amendment Privilege: New Developments and New Confusion, 10 St. *1209Louis U.L.Rev. 327 (1966); National Comm, on Reform of Fed.Crim.Laws, Working Papers, 1406-1411 (1970). See generally Symposium, The Granting of Witness Immunity, 67 J.Crim.L. & Criminology 129 (1976). These sources indicate that immunity statutes were enacted to supplement the “power of government to compel persons to testify in court or before grand juries and other governmental agencies,” Kastigar v. United States, 406 U.S. at 443, 92 S.Ct. at 1655, in circumstances where that testimony would otherwise be unavailable because of the witness’s assertion of a fifth amendment privilege.
The Supreme Court has recognized that the government is not the only one capable of legitimately demanding the testimony of citizens. A criminal defendant has a similar interest since “[tjhe power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.” Kastigar v. United States, 406 U.S. at 443-4, 92 S.Ct. at 1655.
. The authority of a United States Attorney to request immunity is conditioned upon approval by the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General. 18 U.S.C. at § 6003(b).
. As I have indicated above, I agree with the majority that a court may also review to determine whether the United States Attorney has acted constitutionally. See pp. 1205-1206 supra. However, before this review is undertaken, the court should review to determine whether there has been an abuse of the United States Attorney’s discretionary statutory authority.
. The appointment of United States Attorneys is provided for by 28 U.S.C. § 541 (1977), and their general duties specified in 28 U.S.C. § 547 (1977).
None of the statutory exceptions to the definition of agency in 5 U.S.C. § 701(b)(1) would *1210appear to exclude a United States Attorney from coverage.
. But see 1 K. C. Davis, Administrative Law Treatise 8 (2d ed. 1978).
. As Professor Davis has stated: “When a court can find no legislative guidance as to reviewability, obviously it must make its own determination, and in doing so it necessarily creates a common law of reviewability. In all the vast mass of cases in which no legislative intent is discernible and in which no constitutional principle is invoked, the case law on reviewability is clearly common law.” K. C. Davis, Administrative Law Text 509 (3d ed. 1972).
. The design of checks and balances fundamental to our tripartite structure of government is predicated upon, and in a sense is the converse of, the concept of separation of powers. See J. Madison, The Federalist Nos. 47-51. No one can dispute that the judiciary is charged with defining the boundaries of the respective branches of government. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Moreover, the very possibility of judicial review prevents overreaching by either of the other two branches of government. As related to the immunity problem presented here, judicial review should operate to check any possible abuse by the executive branch when it refuses to request immunity for a defense witness.
. C. 769, § 1, 68 Stat. 745, repealed Pub.L.91-452, Tit. II, § 228(a), 84 Stat. 930 (1976).
. Some cases have held that a criminal defendant does not have standing to challenge a grant of immunity conferred on a government witness who testifies against him. United States v. Rauhoff, 525 F.2d 1170 (7th Cir. 1975); United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). See United States v. Lewis, 456 F.2d 404 (3d Cir. 1971) (transactional immunity statute). This is fully consistent with my conclusion that the decision to grant immunity in such a case is so far committed to the government’s discretion as to preclude judicial review.
The same result does not obtain, however, when the government refuses to seek immunity for a defense witness. It cannot be doubted that the criminal defendant suffers injury in fact which is caused by the government’s conduct. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 456 (1976). Whether the defendant is within the zone of interest to be protected by the statute, see Association of Data Processing Service Organizations v. Camp., 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), depends, of course, on the construction that is to be given to the statute. Under my view, the defendant is within that zone because the government’s use of the immunity power as it pertains to the presentation of the defendant’s case will impact upon the fairness and accuracy of the defendant’s trial. To suggest that the use immunity statute is a weapon only of the government’s arsenal would be to impute to the Congress a design to obtain convictions on the basis of an incomplete presentation of evidence. As Judge Gibbons has himself acknowledged “. it has been recognized for at least three centuries that the public has the right to every person’s testimony. Every witness privilege is seriously in derogation of a general and fundamental duty.” In re Grand Jury Proceedings (Matter of Egan), 450 F.2d 199, 222 (3d Cir. 1971) (en banc) (Gibbons, J., dissenting), cert. denied, 408 U.S. 922, 92 S.Ct. 2479, 33 L.Ed.2d 332 (1972). Accepting my construction of the statute, it necessarily follows that the court has the power to provide the relief requested by the defendant in this case. See Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).