dissenting:
In its construction of § 552(a)(2)(C) the majority opinion by Judge Wilkey holds that the prosecuting instructions issued by the United States Attorney to aid his assistants are exempt from disclosure because of the congressional intent expressed in the committee reports they constitute “instructions to Government personnel prosecuting cases in court” and “ ‘law enforcement matters’ . . . — both the Manual and the Guidelines — [that] fall within this description of non-covered materials.” Maj. Op., p. -- of 192 U.S.App.D.C., p. 760 of 591 F.2d. Yet, in the very next sentence the majority holds that the prosecution instructions are not exempt from disclosure. Maj. Op., p. -- of 192 U.S.App.D.C., p. 760 of 591 F.2d; see id. pp. - of 192 U.S.App.D.C., pp. 759-761 of 591 F.2d. In so ruling the majority violate the clear intent of Congress and the fundamental rule of statutory interpretation that a specific provision overrides a general provision addressed to the same concern. From such construction I respectfully dissent.
1. Section 552(a)(2) and the Specific Intent of Congress.
The construction indulged in by the majority opinion is reached by restricting (a)(2) to exempting prosecution instructions only from indexing and disclosure and then going on to hold that such exemption from disclosure is meaningless and that all such records are obtainable under (a)(3)1 upon a mere “request for records . . . reasonably describing them].” Since any record can be reasonably described, and usually is in the request for it, such construction of the statute is unreasonable and unrealistic. The admitted exemption in (a)(2) for prosecution instructions would thus be rendered completely useless. The recognized intent of Congress in (a)(2) excluding prosecution instructions from compelled disclosure would be completely obliterated by merely including a description of the record in a request. Both subsections (a)(2) and (a)(3) are disclosure provisions, and it is incongruous to attribute to Congress an intent specifically to exempt prosecution instructions under one subsection and to require their disclosure under the very next succeeding subsection. The theory of construction indulged in by the majority opinion is too finely spun and too unreasonable to overcome the clearly expressed intent expressed by both Houses as to the result the Congress sought to bring about by (a)(2). The clear statements of legislative intent in the Committee Reports of both Houses indicate that Congress intended “prosecution . instructions” to be completely exempt from disclosure and this should not be made useless by construction.
Subsection (a)(1) of § 552 requires that certain material be published in the Federal Register; (a)(2) requires “administrative staff manuals and instructions to staff that affect a member of the public” (emphasis added) to be made available for public inspection and copying; and (a)(3) provides that, except with respect to records made available under (a)(1) and (a)(2), each agency “upon any request” which “reasonably describes such records,” and complies with agency rules as to time, place, fees and procedures, shall make the records promptly available to any person.
In enacting these provisions the Senate Committee Report specifically stated that it intended by its reference to “administrative staff manuals” in § 552(a)(2)(C)2 to exempt prosecution instructions:
*786The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action.
S.Rep.No.813, 89th Cong., 1st Sess. 2 (1965) U.S.Code Cong. & Admin.News 1966, p. 2418 (emphasis added). There is nothing in the congressional intent so expressed to indicate that the Senate intended it to be restricted to exempting the disclosure of such records solely from indexing and disclosure and not from those provisions of the act that require only disclosure. In this respect the majority misread the statute. See Maj. Op., pp. of 192 U.S.App.D.C., pp. 760-761 of 591 F.2d. Indexing of orders, opinions, instructions, etc., is not a requirement for exempting such records from disclosure but is only required if the agency seeks to rely thereon, use, or cite them as precedent against a party other than an agency, per § 552(a)(2)(C).3 Since no such reliance or use is sought for its prosecution instructions the claim of the majority that there is some difference between the effect of (a)(2) and (a)(3) upon such instructions is without any support in the statute or in the legislative history. Prosecution instructions need not be indexed before they can be given their intended advisory use within the office of the United States Attorney. The entire point of the majority in this respect is thus shown to be meaningless, unreasonable and without any practical foundation. This completely refutes the remainder of the majority opinion by decisively undermining the construction of the act upon which it rests its decision. Maj. Op., p. of 192 U.S.App.D.C., p. 763 of 591 F.2d. Since indexing is only compulsory when an agency seeks to rely, use or cite the record material “as precedent against a party,”4 to interpret the statute as though Congress intended to only exempt the instant prosecutorial instructions from indexing and not eventually from all disclosure would rely on an unjustified construction because the statute does not require indexing before use by the staff to aid in the exercise of its prosecutorial discretion — the only intended use of such instructions.
It is also of utmost significance to the issue with which we are confronted to note that the Senate indicated by its Committee Report, supra, that the statute was specifically providing for such exclusion from disclosure of such instructions because of the “traditional confidential nature of [prosecution] instructions.” Thereby the Senate referred to the common law attorney-client privilege and Congress indicated that it in*787tended a government agency to be considered as a client under the Freedom of Information Act.
The Senate Report states that Exemption 5 “would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties,” S.Rep. No. 813, p. 2; and the case law clearly makes the attorney’s work-product rule of Hickman v. Taylor, 329 U.S. 495 [67 S.Ct. 385, 91 L.Ed. 451] (1947), applicable to Government attorneys in litigation. Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp., at 947, 141 Ct.Cl., at 50; United States v. Anderson, 34 F.R.D. 518 (Colo.1963); Thill Securities Corp. v. New York Stock Exchange, 57 F.R.D. 133 (E.D.Wis.1972); J. H. Rutter Rex Mfg. Co., Inc. v. NLRB, 473 F.2d 223 (CA5), cert. denied, 414 U.S. 822 [94 S.Ct. 120, 38 L.Ed.2d 55] (1973).
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975) (emphasis added). In Mead Data Cent. Inc. v. U.S. Dept. of Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242 (1977), we also recognized that the Department of the Air Force as an agency of Government was entitled to the same privilege as a private client for its “confidential communications to [its] attorney.” In his dissent in Mead Data, Judge McGowan also recognized the privilege and would have applied it more broadly than the majority. 184 U.S.App.D.C. 371-372, 566 F.2d at 263-264.
The House Committee Report, in addition to that of the Senate, also included a statement indicating an intent to exempt from disclosure those “prosecution staff manuals and instructions which set forth [“prosecution”] criteria or guidelines for the staff . . . .” And the House Report further indicated that it intended such interpretation to apply to all of S. 1160 and not to be confined solely to (a)(2) as the majority opinion contends:
In addition to the orders and opinions required to be made public by the present law, subsection (b) of S. 1160 would require agencies to make available statements of policy, interpretations, staff manuals, and instructions that affect any member of the public. This material is the end product of Federal administration. It has the force and effect of law in most cases, yet under the present statute these Federal agency decisions have been kept secret from the members of the public affected by the decisions.
As the Federal Government has extended its activities to solve the Nation’s expanding problems — and particularly in the 20 years since the Administrative Procedure Act was established — the bureaucracy has developed its own form of case law. This law is embodied in thousands of orders, opinions, statements, and instructions issued by hundreds of agencies. This is the material which would be made available under subsection (b) of S. 1160. However, under S. 1160 an agency may not be required to make available for public inspection and copying any advisory interpretation on a specific set of facts which is requested by and addressed to a particular person, provided that such interpretation is not cited or relied upon by any officer or employee of the agency as a precedent in the disposition of other cases. Furthermore, an agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, such as operational tactics, allowable tolerances, or criteria for defense, prosecution, or settlement of cases.
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966) U.S.Code Cong. & Admin.News 1966, p. 2424 (emphasis added). The statement italicized above is a continuation of the reference in the prior sentence to all provisions “under S. 1160.” Thus, the language of the Report indicates a clear legislative intent to exempt from disclosure “under S. 1160” — i. e., the entire act, not just (a)(2)— those “staff manuals and instructions which set forth criteria or guidelines for the staff in . the selection or handling of cases ... or criteria for *788prosecution ... of cases.” This specific provision completely exempts the subject prosecution instructions.
And when the Senate Report refers to the “traditional confidential nature of [prosecution] instructions” and thereby indicates it is recognizing the common law privilege of such material, it indicates an additional intent that such material should be exempted from all disclosure requirements of the FOIA. It would be the height of absurdity to construe such recognition of the traditional confidential nature of prosecution instructions as being limited only to exemption from indexing, which is not required except for secret law. That would be no recognition at all of the traditional confidential nature of such instruction which is grounded in the traditional attorney-client relationship that exists between the Government and its prosecutors. See, p. --- of 192 U.S.App.D.C., at pp. 786-787 of 591 F.2d supra. Thus, according to the intent expressed by both Houses, the specific exemption from disclosure extends to the entire Act including (a)(2) and (a)(3), and the last sentence of subsection (b). Cf. Maj. Op. p., - of - U.S.App.D.C., at p. 763 of 591 F.2d.
2. The Interpretation of Conflicting Specific and General Statutory Provisions.
In addition to the above interpretation based upon the specific intent expressed by both Houses of Congress recognizing the traditional confidential nature of such material and excluding prosecution instructions from all disclosure “under S. 1160” [the Act], such interpretation is also required by that rule of statutory construction which requires the specific exemption in (a)(2) to control the subsequent general provision of (a)(3) with which it might conflict. As the Supreme Court stated in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957):
“However inclusive may be the general language of a statute, it ‘will not be held to apply to a matter specifically dealt with in another part of the same enactment. . . . Specific terms prevail over the general in the same or another statute which otherwise might be controlling.’ Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 [52 S.Ct. 322, 76 L.Ed. 704]” MacEvoy Co. v. United States, 322 U.S. 102, 107 [64 S.Ct. 890, 88 L.Ed. 1163.]
353 U.S. at 228-29, 77 S.Ct. at 791. This principle was recently reiterated in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), where Justice Brennan remarked:
Finally, our result is supported by the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. See Preiser v. Rodriquez, 411 U.S. 475, 489-490 [93 S.Ct. 1827, 36 L.Ed.2d 439] (1973). Cf. 2A C. Sands, Sutherland, Statutory Construction § 51.05 (4th ed. 1973).
435 U.S. at 15, 98 S.Ct. at 914.
With respect to this conflict in the FOIA Professor Davis stated:
[T]he (a)(2) intent is more specific than the broad and general intent of (a)(3), and the usual canon of interpretation is that the specific should prevail over the general when the two provisions are inconsistent.
K.C. Davis, Administrative Law in the Seventies 57 (1976).5 The foregoing principle is firmly established. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904) set it forth as follows:
It is a well-settled principle of construction that specific terms covering the given subject-matter will prevail over general language of the same or another stat*789ute which might otherwise prove controlling.
195 U.S. at 125, 24 S.Ct. at 803. United States v. Salen, 235 U.S. 237, 249, 35 S.Ct. 51, 59 L.Ed. 210 (1914); United States v. Stever, 222 U.S. 167, 32 S.Ct. 51, 56 L.Ed. 145 (1911); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); FTC v. Manager, Retail Credit Co., Miami Branch Office, 169 U.S.App.D.C. 271, 276-77, 515 F.2d 988, 993-94 (1975); Maiatico v. United States, 112 U.S.App.D.C. 295, 300-01, 302 F.2d 880, 885-86 (1962); American Telephone and Telegraph Co. v. FCC, 487 F.2d 864, 877 n.26 (2d Cir. 1973); Monte Vista Lodge v. Guardian Life Ins. Co. of America, 384 F.2d 126, 129 (9th Cir. 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968); Cuevas v. Sdrales, 344 F.2d 1019, 1020-21 (10th Cir. 1965), cert. denied, 382 U.S. 1014, 86 S.Ct. 625, 15 L.Ed.2d 528 (1966); United States ex rel. Chapman v. FPC, 191 F.2d 796 (4th Cir. 1951), aff’d 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953); Buffum v. Chase Nat. Bank of City of New York, 192 F.2d 58, 61 (7th Cir. 1951), cert. denied, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 702 (1952). Cf. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Alpers, 338 U.S. 680, 682-83, 70 S.Ct. 352, 94 L.Ed. 457 (1950); Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). It therefore clearly appears from the specific intent expressed in the Committee Reports and the applicable principles of statutory interpretation as recognized by the Supreme Court that Congress must be recognized by the foregoing specific expressions of intent to have purposely intended to exempt prosecution instructions from all disclosure and that it did not commit “legislative error” in doing so to arrive at “a somewhat peculiar regime.” Cf. Wilkey, J., Opinion at p. — of 192 U.S.App.D.C., at p. 762 of 591 F.2d. Actually the novel claim of “legislative error” is an imaginative creation of the writer that was induced by an approach which applied a wooden interpretation to the entire statute. Such approach finds it impossible to recognize that Congress by (a)(2)(C) specifically exempted prosecution instructions — which all admit — and that such exemption is just as much “specifically stated in section [§ 552],” see subsection (C), as any of the nine exemptions set forth in subsection (b). The intent of Congress with respect to both subsection (C) and the nine exemptions is to be determined from the language of the statute and from the Committee Reports. It appears that one of the basic defects in the majority opinion is its inability to recognize that both the House and Senate Reports also indicate the congressional intent of the statutory language.
3. The Majority’s Treatment of the Exemptions and its Interjection of Subsection (a)(3) of section 552.
Since the legislative intent of both Houses with respect to (a)(2), as the majority opinion admits, plainly exempts “prosecuting . . . instructions,” it is not necessary to find an additional exemption from disclosure in (b)(2) dealing with “internal personnel rules and practices of an agency”, or in (b)(5) exempting certain “inter-agency or intra-agency memorandums”, or in (b)(7) which exempts certain “investigatory records compiled for law enforcement purposes.” However, it is perfectly clear that when the Senate Committee Report based its exemption of “prosecuting ... instructions” upon their “traditional confidential nature ” and indicated that the exemption, so based, extended not just to (a)(2) but to the entire act, that the (b)(5) exemption when it refers to “intra-agency memorandums . . . which would not be available by law to a party other than an agency in litigation with an agency” embodies the common law attorney-client privilege for prosecutorial instructions which the Senate Report encompassed. See p. — of 192 U.S.App.D.C., p. 786 of 591 F.2d, supra.
The discussion of (b)(2) and (b)(5) in Ginsburg, Feldman & Bress v. Federal Energy Administration, 192 U.S.App.D.C. —-, 591 F.2d 717 (1978), is also applicable here to a considerable extent. But since the instant documents are completely exempted by *790§ 552(a)(2)(C) reliance upon exemptions (B)(2) and (5) is not necessary and their interpretation need not be repeated. See id., at ---, —......... of 192 U.S.App.D.C., at 723-725, 732-734 of 591 F.2d. As to exemption (b)(7), its discussion in Ginsburg, id. at - of 192 U.S.App.D.C., at 731-732 of 591 F.2d, is not applicable here because of the difference in the nature of the documents requested.
With respect to Exemption 7, Ginsburg did not rely thereon as an additional basis for not requiring disclosure, but instead addressed (b)(7) merely as exemplary of the scheme and general intent of the Act. See id., at note 27 and accompanying text. While (b)(7) may have a stronger influence here it also has much the same significance that it occupied with respect to the Ginsburg records. Subsection (b)(7)(E) plainly indicates an intent to protect “investigative techniques and procedures” in law enforcement investigatory records. That being its intent it would hardly be sensible to attribute a contradictory intent to Congress to protect such procedures in investigatory documents and not in more general instructions to prosecutors. While this provision is not aimed directly at exempting prosecution instructions or manuals, except as the prosecuting instructions might be a part of investigatory records, it certainly is another instance where the Senate and the House agreed by specific language that both Houses intended to exempt law enforcement records that disclose investigative procedures. Prosecutorial instructions which specify offenses that should and should not be prosecuted constitute a significant part of “law enforcement . . . investigative . procedures.”
The majority opinion, however, refuses to discuss (b)(7) because it is asserted that the “claim was not timely made by the Department [of Justice], and consequently there is no need to consider its merits.” Wilkey, J., Opinion at -- of 192 U.S.App.D.C., at 779 of 591 F.2d. The majority opinion further states:
To meet [its] burden the agency must identify the specific statutory exemption relied upon and demonstrate that the exemption applies to the documents in question. This showing must be made at the district court level. An agency cannot prevail on an exemption that it has not raised either at the agency level or in the district court and that it has invoked for the first time in the appellate court. . [I]ssues on appeal are to be confined to those duly presented to the trial court.
Maj. Op., at pp. -, - of 192 U.S.App.D.C., at p. 779 of 591 F.2d. The majority opinion then engages in an extraneous discussion of situations where an issue is raised for the first time on appeal. This is almost complete dicta but it ends up by admitting, somewhat reluctantly, that appellate courts have some limited discretion particularly because of 28 U.S.C. § 2106.6
In my opinion the rule is not as restrictive or limited as the majority opinion states. To my mind on an appeal in a civil case from a district court there is a considerable discretion vested in the appellate court which may vary dependent upon the nature of the issue, the nature of the new authority and to a considerable extent upon the certainty to which the issue may be resolved. If the issue requires the presentation of facts which were not developed below, or seeks to give a new ground for relief unrelated to the argument in the trial court or to raise a new cause of action, as was the case in Doe v. McMillan, 148 U.S.App.D.C. 280, 287, n.10, 459 F.2d 1304, 1311 n.10 (1972), reversed on other grounds, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); see Ginsburg, supra, at note 34, or involves an administrative proceeding where the agency must explicate the *791grounds for its action, see Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943), then the ability of an appellate court is necessarily restricted. But the rule is not absolute and 28 U.S.C § 2106, supra, recognizes, this. Realizing that it is well-settled that a correct decision in a lower court must be affirmed even though the lower court relied upon a wrong ground or gave a wrong reason, Chenery, supra, at 88, 63 S.Ct. 454; Ryerson v. United States, 312 U.S. 405, 408, 61 S.Ct. 656, 85 L.Ed. 917 (1941); Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937), it is clear that in appropriate cases parties may “urge . . . reasons for affirming the judgment of the District Court which may not have been relied upon by the District Court.” California Bankers Ass’n v. Shultz, 416 U.S. 21, 71, 94 S.Ct. 1494, 1522, 39 L.Ed.2d 812 (1974). Indeed, courts can even consider new issues or grounds to prevent injustice under certain circumstances. Hormel v. Helvering, 312 U.S. 552, 556-57, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Morgan v. Garris, 113 U.S.App.D.C. 222, 223-24, 307 F.2d 179, 180-81 (1962) (en banc).
Thus, when a matter first presented on appeal is in the nature of additional support resulting from further research for a point already raised, or results as the majority recognizes “because of an interim development in applicable legal doctrine,” Maj. Op. p. -- of 192 U.S.App.D.C., at p. 780 of 591 F.2d (which is just this case with respect to Exemption 7) more latitude in considering the new ground is generally recognized to exist. Not recognizing this flexibility would amount to ignoring the authority given appellate courts by 28 U.S.C. § 2106, to “require such further proceedings to be had as may be just under the circumstances.” I dissent from the majority’s declaration that the law on the subject is as positively prohibitory as is indicated by its statement in the foregoing opinion, Maj. Op., pp. ----- of 192 U.S.App.D.C., at pp. 779-780 of 591 F.2d.
What happened here, and it must be presumed to happen in many FOIA cases, is that when the application was first made the agency denied it upon a single ground that it considered to be plain and determinative. With the tremendous quantity of FOIA cases that are developing I could not find a failure to file a completely exhaustive response to be unreasonable. There certainly is a great economy of time in so acting and not requiring that the statute and the decisions be fine combed to discover and assert every conceivable supporting authority. Doubtlessly the single ground is determinative of a great many requests. The same situation, and somewhat the same justification, develops to a lesser degree before the district court, particularly when the agency feels it has asserted conclusive legal authority for its action. The Agency may then see no necessity for asserting every cumulative authority. However, when its basis of decision is found to be insufficient and an appeal is necessary to this court it then feels it is necessary to marshall all its authority. That is how these situations arise and I feel that they should be dealt with realistically and where the new ground is raised because of a new decision, and same can be considered on the existing factual record made before the district court, I see no necessity, barring some other motivating consideration, to remand the case or to refuse to consider the legal authority so raised. In this case the Exemption 7 issue was raised because of our panel decision in Ginsburg, Feldman & Bress v. Federal Energy Administration, 192 U.S.App.D.C. -, 591 F.2d 717 (1978), which is today affirmed en banc by an equally divided court.
However, where a new cause of action is sought to be raised for the first time on appeal, as appellants attempted before our court in Doe v. McMillan, 148 U.S.App.D.C. 280, 284 & n.10, 459 F.2d 1304, 1308 & n.10 (1972), rev’d on other grounds, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), an appellate court obviously should refuse to consider it. Our opinion in Doe does not support the contention for which it is cited by the majority.
It is thus my view that since the Government did raise Exemption 7 in its original *792brief, Govt. Br., pp. 15-16, and expanded its reliance in its supplemental brief, Govt. Supp. Br., pp. 3-5, and no new factual findings are necessary to our consideration of its effect, that the majority opinion should consider it since in the majority’s view of the case the applicability of the exemptions was determinative.
However, regardless of what the majority does with the 7th exemption, it is my view that the majority opinion excessively limits the discretion that the courts of appeals and the Supreme Court may exercise with respect to considering authorities that are delayed in presentation but still may determine a controversy or furnish a basis for or influence a decision. In my view the majority opinion in this respect is far too dogmatic and in that excess of zeal and certainty of its own opinion it has actually blinded itself so that it cannot see that in this very case it has committed the very vice it railes against.
The complaint here in Jordan is based solely upon the claim that § 552(a)(2)(B) and (C) entitle plaintiff to the relief he requests. App. 6. Jordan argued his case on that basis. App. 53, 52-58. And the Order and Judgment of the District Court is based solely upon § 552(a)(2)(B) and (C). App. 76-77. Furthermore, in this court the majority agree that Jordan and the district court were in error in claiming and holding that (a)(2) required access to the requested records. This error is articulated by the majority opinion as follows:
In sum, then, we hold that the Manual and Guidelines sought by appellee Jordan in this case are not releasable under paragraph (a)(2) of the Act.
Maj. Op., p. of 192 U.S.App.D.C. at p. 763 of 591 F.2d (emphasis in original).
Then, in the very next sentence the majority proceeded to insert for the first time in this ease a basis for decision that was never referred to in the pleadings, never discussed by either party in oral argument before the district court, never referred to or relied upon by the judgment of the district court, never referred to in any briefs to this court and never mentioned by either party in oral argument before this court en banc. Nevertheless, the next line of the majority opinion for the first time interjected a new theory for disclosure based on another subsection of the act, saying:
However, these documents are releasable under paragraph (a)(3), unless they fall within at least one of the nine exemptions set forth in subsection (b).
Maj. Op., p.--of 192 U.S.App.D.C. at p. 763 of 591 F.2d (emphasis in original). And it is upon the basis of subsection (a)(3) that the majority bases its decision that the records in question are diselosable notwithstanding its conclusion that they are exempted by (a)(2), the only subsection previously relied upon or discussed in the entire case. Thus, apart from its erroneous construction of (a)(3), which is pointed out above, the majority also violates its own pronouncement in considering and relying upon a section of the statute, and a theory for its construction, that had never previously been raised by anyone — anywhere. If the construction so belatedly advanced were sound, this contradiction of its announced principle which would preclude consideration of exemption 7 might have some justification, but, violating as it does sound rules of statutory construction it is in error in that respect as well as contrary to the majority’s extravagant dicta which would unreasonably restrict appellate consideration strictly to matters and authority raised at the hearing stage. Actually, consideration of exemption 7 which was first mentioned by appellants in their initial brief would be a far lesser violation of the rule limiting appellee consideration as announced by the majority than the majority’s interjection of subsection (a)(3) which never appeared in this case until the majority opinion was circulated.
4. The Sunshine Act.
Before proceeding with the discussion of the subject it should be noted that by interjecting the Sunshine Act argument the majority is interjecting this argument in its opinion for the first time in the case, contrary to the earlier condemnation of such procedure.
*793The claim of the majority in this respect is that an isolated provision of the Government in the Sunshine Act, P.L. 94-409, 90 Stat. 1241 (Sept. 13, 1976) supports its asserted construction of subsection (b)(2) of the Freedom of Information Act. Maj. Op. pp. --- of 192 U.S.App.D.C, at pp, 770-771 of 591 F.2d. This claim is refuted by the opinion in Ginsburg, supra, at pp. ---of 192 U.S.App.D.C., at pp. 734-735 of 591 F.2d. The basic error committed by the foregoing opinion, in its assertion that the Sunshine Act supports its construction, is that it fails to recognize that a different provision, § 552b(c)(7) of the Sunshine Act, accomplishes practically the same exemption that the House did through its Committee Report with respect to Exemption 2 of the FOIA. The specific language in the Sunshine Act that tracks the statement of intent of the House Committee Report with respect to Exemption 2 of the FOIA provides that any agency need not—
(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, .
5 U.S.C. § 552b(c)(7). Written or oral instructions to investigators are a part of the “investigatory record” and it is too clear for argument that disclosure of prosecutorial instructions announcing that some violations might be prosecuted and others might not would certainly interfere with enforcement proceedings. These instructions are thus exempted by Exemption (7) of the Sunshine Act the same as they are by the Exemption (2) of the FOIA. But this case does not involve a Sunshine Act claim. The prosecution instructions also fall in the category of “guidelines . . for Government investigators” that are exempted by § 552(b)(2) as explained by the House Report to the FOIA. See Ginsburg, at - of 192 U.S.App.D.C., at 723 of 591 F.2d.
It is also a gross mistake for the majority opinion at --- of 192 U.S.App.D.C., at 767-768 of 591 F.2d to overlook the fact that the House Committee Report, in expressing its intent with respect to Exemption 2 did not expand that exemption but generally restricted what might have been held to be exempted by “practices of an agency.” If one were to look only to the Senate Committee Report as the majority urge, “practices of an agency” might have been construed as including “matters of internal management.” Ginsburg, supra, at --- of 192 U.S.App.D.C, at 726 of 591 F.2d. Thus, the House Committee Report actually closed a potentially large loophole when it stated that its intent in Exemption 2 was to exempt from disclosure “operating rules, guidelines, and manuals of procedure for government investigators or examiners . . . ” H.R. Rep.No.1497, 89th Cong, 2d Sess. 10 U.S. Code Cong. & Admin.News 1966, p. 2427 (May 9, 1966) (footnote omitted).
It is also fatal to the argument advanced by the majority with respect to (b)(2) and the Sunshine Act that substantially the same exemption from disclosure, as the Government asserts, had been expressed earlier in the Committee Reports on the FOIA by both houses. The Senate Report had stated:
The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action.
S.Rep.No.813, 89th Cong, 1st Sess. 2, 7 (1965) (emphasis added). (See also p. - of 192 U.S.App.D.C, pp. 786-787 of 591 F.2d, supra.) The House Report had expressed a similar intent:
Furthermore, an agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, *794 such as operational tactics, allowable tolerances, or criteria for defense, prosecution, or settlement of cases.
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966) U.S.Code Cong. & Admin.News 1966, pp. 2424-2425 (emphasis added). (See also pp. --- of 192 U.S.App.D.C., pp. 787-788 of 591 F.2d, supra.) Jordan cannot overcome these expressions of legislative intent. Try as the majority may to inject some dispute between the two houses, or some deficiency in the expression of legislative intent, the two quotations above indicate their concurrence in exempting prosecution guidelines in law enforcement matters.
5. The Unsupported Charge by the Majority Opinion of “Chicanery” by the House Committee on Interstate and Foreign Commerce.
The majority opinion charges the House Committee on Interstate and Foreign Commerce (which was spearheaded by Representative Moss) with “chicanery” in attempting to inject improper congressional intent into the Senate bill through the House Committee Report. Time and space do not permit refutation of that charge except insofar as it may be relevant to this case — i. e., to Exemption 2.
When the bill reached the House from the Senate, the Senate Committee Report with respect to Exemption 2 only gave a few “[ejxamples” of the types of “rules” it was exempting from disclosure. It made no reference to the “practices of an agency.” Thus, if no further committee explanation of Exemption 2 were given the “practices of an agency” would be wide open to be given their normal meaning and that might be held to constitute a very broad exemption. It might even be deemed to cover “matters of internal management” as the Act previously provided. However, one of the principal purposes of the bill was to repeal the “internal management” exemption which was a feature of the then existing law. “Practices of an agency” would also cover investigatory practices and many other practices, and all practices would be exempt from disclosure unless some limitation were placed on the statutory language. This was the possible construction that had crept into the bill when it reached the House.
Thus, because the Senate Committee Report left the “practices of an agency” part of the Exemption open to a very broad interpretation, which admittedly none of the authors ever intended, the House Committee Report went ahead and severely and specifically limited the breadth of the Exemption practically to operating rules, guidelines and investigatory manuals. It also further restricted the Exemption by providing that specific “matters of internal management” such as “employee relations and working conditions and routine administrative procedures” must be disclosed. The majority opinion mistakenly views this House action as broadening the Exemption. In reality the House Report closed a big loophole as is shown at pages --- of 192 U.S.App.D.C., at pages 792-793 of 591 F.2d, supra. With respect to investigatory manuals it did nothing more than state the precise intent elsewhere stated by the Committee Reports in both the Senate and House with respect to administrative staff manuals, i. e., to exempt law enforcement matters and staff manuals and instructions which set forth criteria or guidelines for the staff in the handling of cases such as criteria for prosecution of cases (Ginsburg, supra at pp. --- of 192 U.S.App.D.C., at p. 719 of 591 F.2d). And as to “matters of internal management” there is no disagreement that both Houses intended to repeal that existing statutory exemption. Thus, the House Report did a more workmanlike job in setting forth the admitted intent of both Houses on Exemption 2.
As to the charge of “chicanery” with respect to Exemption 2 the open proceedings in Congress completely belie the accusation. First, Congressman Moss, the principal House author of the bill and the acknowledged father of the Freedom of Information Act, stated publicly on the very first day of the House hearings, March 30, 1965, that the intent of Exemption 2 was to exempt operating rules, guidelines and certain *795manuals of procedure. Second, Congressman Moss publicly declared the same day that he would “hope to see a way of doing the job [exempting examiners’ manuals] without exempting internal rules and practices.” In the same vein Congressman Moss added, “we are perfectly willing to work at it.” House Hearings, March 30, 1965, pp. 29-30. Third, the Senate hearings did not begin until May 14th, some six weeks later, and all the public House Committee proceedings were available to it. The Senate Committee Report was not filed until October 4, 1965.
Thus, no person can contend that something deceitful was being done with respect to Exemption 2 when the House subsequently did precisely what the principal author of the bill publicly stated they intended to “work at.” Nor can it be contended that the Senate did not have ample opportunity to be informed of the House position.
Fourth, the charge made in Ginsburg, supra (see Dissent at - of 192 U.S.App.D.C., at 746 of 591 F.2d) that there was some sinister “last minute chicanery by interested members of the House . just as the full committee in the House was about to report out the bill. . ” (emphasis added), insofar as said charge is made with respect to Exemption 2, is flawed by the fact that committee reports are usually prepared near the final stage of a bill’s passage. In view of the public statement of Congressman Moss made on March 30, 1965, over 13 months before the House Committee Report was filed on May 9, 1966 (H.Rep.No.1497, 89th Cong., 2d Sess. U.S.Code Cong. & Admin. News 1966, p. 2418), it cannot be contended that the portion of the report dealing with Exemption 2 constituted “last minute chicanery.”
6. Miscellaneous Comments.
(a) The majority opinion states that several witnesses told the Senate, meaning the Senate subcommittee, that the exemptions would have to be expanded if it was desired to “protect investigative manuals.” See Maj. Op., at - of 192 U.S.App.D.C., at 766 of 591 F.2d. None of these witnesses were Senators and their statements do not constitute expressions of congressional intent. The statements referred to are also greatly weakened as to any possible weight by the fact that they were made on May 12, 14, and 21 in 1965 before the Senate Committee Report was filed on October 4, 1965. They thus have little or no force. Their comments are entitled to no weight whatsoever as expressions of legislative intent of the Senate. Similarly, those comments in the House Hearings which were “off the top of [the] heads” of certain participants, not members of the House, are similarly not reflective of congressional intent.
(b) The majority opinion cites certain passages from Department of the Air Force v. Rose, 425 U.S, 352, 96 S.Ct. 1593, 48 L.Ed.2d 11 (1976), but the significant feature of that opinion is that it leaves open for future decision the fate of a claim under the FOIA “where disclosure may risk circumvention of agency regulation.” 425 U.S. at 369, 96 S.Ct. at 1603. While the prosecution instructions here do not present the same clear-cut case as is presented by Ginsburg, the facts here are sufficiently similar to conclude that the question here is also open. See concurring opinion of Judge Leventhal.
(c) The statement of the majority opinion at - of 192 U.S.App.D.C., at 775 of 591 F.2d that “[n]either the Manual nor the [FOT] Guidelines . . . sought by appellee . . . were . . . even prepared in anticipation of trials in general” seems to be patently incorrect.
(d) In conclusion, I state my agreement with the statement in Judge Leventhal’s opinion that:
Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. [Leventhal, J., at - of 192 U.S.App.D.C., at 783 of 591 F.2d].
*796I also join his statement as to the relationship of the House and Senate Reports and as to Justice Brennan’s interpretation thereof. Id., pp. --- of 192 U.S.App.D.C., at 783-784 of 591 F.2d. I do not particularly reach his discussion of Exemption 2 because I find the prosecution instructions exempt from disclosure by the clear legislative intent of (a)(2) as expressed by both the Senate and the House.
(e) In my view, the majority opinion casts the statute and the issues here in a static mold and attempts to fit the facts of this case into a stereotype pattern that is contrary to both the character of the records here sought and the provisions of the statute and legislative history that applies thereto. What the majority opinion really does is rely solely on its insensitive construction of the bare language of the statute and ignore completely all congressional intent specifically expressed in the committee reports except for a monetary recognition of the intent expressed with respect to § (a)(2), which the opinion immediately negates.
To the extent expressed above I respectfully dissent from the majority opinion. Judge Robb joins in the foregoing opinion.
. 5 U.S.C. § 552(a)(3) provides:
Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
. 5 U.S.C. § 552(a)(2)(C) provides in part:
(a) Each agency shall make available to the public information as follows: ...
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying— .
*786(C) administrative staff manuals and instructions to staff that affect a member of the public-, unless the materials are promptly published and copies offered for sale.
See n. 3, infra. (Emphasis added).
. 5 U.S.C. § 552(a)(2)(C) provides in part:
(a) Each agency shall make available to the public information as follows: . . .
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying— .
(C) . . . Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
(i) it has been indexed and either made available or published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(Emphasis added).
. Id.
. Professor Davis does acknowledge that contrary arguments do have plausibility, and without conclusively resolving the matter, states generally that “when the technical analysis is pushed that far, the court’s policy thinking about the specific issue before the court may sometimes properly play a key role.” Id. This last conclusion should not be considered to apply to the facts of this case, as it appears that under the specific statements of intent by Congress with respect to “prosecution instructions” that disclosure is not required by (a)(2), and in this case that expression of intent should end the analysis.
. 28 U.S.C. § 2106 provides:
The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.