dissenting:
Appellants, twelve professional journalists,1 two corporations which publish newspapers,2 and the Reporters Committee for Freedom of the Press, a legal research and defense fund, brought suit in the District Court for declaratory and injunctive relief on the basis of their claim that the First Amendment requires that prior judicial supervision be afforded before the American Telephone & Telegraph Company (AT&T) turns over their long distance telephone billing records to Government officials. The District Court granted summary judgment in favor of the defendants in this action, AT&T and the United States, and dismissed the suit. This appeal followed.
Relying on the Supreme Court’s decisions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), the majority today holds that appellants are not entitled under the First Amendment to any prior judicial supervision of Government de*1080mands for their toll billing records. Both of these decisions, however, far from holding that the First Amendment rights involved were deserving of no procedural protections, turned explicitly on the determination that the prior judicial scrutiny on a case-by-case basis which was afforded was sufficient to protect the First Amendment rights at stake. In the instant case, on the other hand, no form of judicial scrutiny at all is provided.
In view of these decisions, and taking account of the interests asserted here by both the Government and the appellants, it is my opinion that some opportunity for judicial scrutiny such as that afforded in Branzburg and Stanford Daily must be provided here as well. In rejecting this conclusion the majority fails to accord adequate weight to the critical First Amendment interests at issue here, and fails to provide appellants with the protection of prior judicial scrutiny which has long been recognized to be appropriate where First Amendment rights are at stake. I therefore respectfully dissent.
I. BACKGROUND
Prior to 1974 AT&T had no formal policy governing provision of long distance toll billing records to Government investigators. Instead, the decisions were left to individual operating companies,3 whose general practice was to provide such records whenever requested with no notice afforded to the subscriber by either the Government or the companies.4 On at least five, and allegedly six, occasions5 the toll billing records of appellants were provided to the Government in accordance with this general practice. During the summer of 1971, for example, after the printing of portions of the Pentagon Papers in publications with which Richard Dudman and Knight Newspapers were affiliated, the Chesapeake & Potomac Telephone Company (C&P) provided agents of the Federal Bureau of Investigation (FBI) involved in the Daniel Ells-berg-Pentagon Papers investigation with the long distance records for telephones listed to Dudman and Knight Newspapers. Joint Appendix (JA) 268-270. That same summer the FBI, acting on a White House request that it learn the sources of a column by Jack Anderson about an official of the Agency for International Development who had “crashed” a party for Vice President Agnew which, in the words of a State Department cable quoted by Anderson, “culminated in his getting sloshed,” secured from C&P toll records for telephones listed to Anderson and three of his employees. JA 168 — 171, 219-221.6 A final example worthy of note occurred in early 1974 and involved David Rosenbaum of the New York Times. A taxpayer complained to the Internal Revenue Service (IRS) that Rosenbaum knew about an investigation of *1081the taxpayer being conducted by the IRS, and that Rosenbaum had suggested to the taxpayer that the investigation was being suppressed for political reasons. Although the IRS knew the identity of the agent likely to be Rosenbaum’s source, it nonetheless requested and received from C&P the toll billing records, not only for Mr. Rosenbaum’s telephone, but for all the telephones of the entire staff of the Washington Bureau of the New York Times for a six-month period. JA 241 — 246, 289-291.7
In none of these or the other admitted cases of Government requests for appellants’ phone records was the Government agency involved required to establish probable cause for its request or to secure any form of judicial approval. Nor did the telephone companies in any way challenge the Government’s authority to obtain the requested information. And neither the Government nor the telephone companies made any effort in any of these cases to notify the reporter or newspaper whose records were being sought of the request. As a result, at no time was the validity or constitutionality of the Government requests subject to any form of judicial scrutiny.
In December 1973 appellants wrote to AT&T requesting written assurances that their toll billing records would no longer be provided to Government investigators without reasonable notice to the journalists involved.8 In their letter appellants expressed their concern — which underlies this litigation — that listings of dates, times, and long distance telephone numbers called by a reporter could be used by the Government to identify the reporter’s confidential sources.9 Following this request AT&T and its operating companies, after meetings and discussions with Justice Department officials, JA 106-114, adopted a more formal policy governing compliance with Government requests for toll billing records. JA 39 — 43. Under this policy toll records are to be furnished whenever companies are presented with a Government summons. JA 40. While the policy purports to make notice to subscribers the general rule, it does not require that notice be provided prior to the company’s compliance with the Government request.10 Moreover, the AT&T policy allows for deferral of notice for at least 90 days whenever the Government certifies that notice “could impede the investigation.” JA 40-41 (emphasis added).11 Significantly, AT&T had originally proposed that notice be deferred only where the Government certified that notice “would obstruct and impede the investíga*1082tion being conducted.” JA 120 (emphasis added). The language was altered at the Government’s request.
In effect, AT&T’s formal policy effects no substantial change from pre-1974 practice. During the period from March 1, 1974, when the new policy went into effect, through June 30, 1975, Government investigators on 32,000 occasions sought and received long distance toll records from the telephone companies. In 90 percent of these cases no notice was ever given to subscribers. JA 227-229. And, unlike Branzburg and Stanford Daily, in none of them was judicial approval ever obtained.
11. THE FIRST AMENDMENT CLAIM
Appellants’ claim that they are entitled to notice of Government requests for their toll billing records is founded on the First Amendment.12 Relying heavily on the Supreme Court’s decision in Branzburg v. Hayes, supra, appellants argue that their First Amendment rights to gather and disseminate news are implicated when the confidentiality of their sources is threatened. Toll billing records, they point out, can be used by the Government to identify those sources with whom a journalist communicates by long distance telephone13 — including sources wholly unrelated to the investigation being conducted by the Government. While the presence of these First Amendment interests does not mean that toll billing records may never constitutionally be disclosed, they argue, it does require judicial supervision prior to Government access to ensure that the requests are justified and the scope of disclosure limited in light of the constitutional interests involved.
In evaluating this claim I must begin by pointing out what is not involved here. First, this is not a case in which we are called upon to hold that journalists enjoy protection against certain forms of governmental action above and beyond other citizens. We deal here only with the claims of a discrete group of admittedly professional journalists and publishers continuously en*1083gaged in the processes of gathering and distributing news. Whether or under what circumstances procedural protections should be afforded to other individuals on the basis of other First Amendment claims is a decision which is not before us today. Nor is this a case which requires us to establish new standards for balancing individual and governmental interests or to decide whether disclosure of toll billing records is justified in any particular case. Appellants seek only a declaration that their constitutional rights are threatened by the disclosure process, and that judicial supervision according to established First Amendment standards is therefore necessary.
The issues which this case does present are twofold: whether appellants possess any First Amendment interest which is threatened by disclosure of their toll billing records to the Government and, if so, whether they are entitled to an opportunity for prior judicial supervision on a case-by-case basis to safeguard that interest.14 In my view, Branzburg v. Hayes and Zurcher v. Stanford Daily, considered in light of the circumstances present in this case, mandate an affirmative answer to both questions.
A. The First Amendment Interest in Newsgathering
In Branzburg the Supreme Court was confronted with the claims of three reporters that they should not be required either to appear or to testify before a grand jury or at trial unless substantial showings of relevance and need were first made.15 The “heart of the claim” in Branzburg, according to the Court, was “that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.” 408 U.S. at 681, 92 S.Ct. at 2656. While the Supreme Court rejected this claim and held that the reporters involved were required to testify, it explicitly recognized that newsgathering does qualify for First Amendment protection. “[WJithout some protection for seeking out the news,” the Court noted, “freedom of the press could be eviscerated.” Id.
In reaching its conclusion that the public interest in investigating and prosecuting crimes justified any burden imposed on First Amendment rights in Branzburg, the Court emphasized the critical role of the grand jury in our system of justice and the limited nature of the intrusion on a reporter’s relationship with confidential sources. The grand jury’s authority to subpoena witnesses, the Court noted, is not only historic, but essential to its constitutionally mandated task of inquiring into possible criminal conduct and returning only well founded indictments. Id. at 688, 92 S.Ct. 2646. And the refusal to create a testimonial privilege for reporters subpoenaed in grand jury investigations does not “threaten the vast bulk of confidential relationships between reporters and their sources. Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury’s task need they or the reporter be concerned about grand jury subpoenas.” Id. at 691, 92 S.Ct. at 2661. These were not cases, the Court added, where a governmental institution “has abused its proper function, as a legislative committee does when it ‘expose[s] for the sake of exposure.’ * * *1084Nothing in the record indicates that these grand juries were ‘probpng] at will and without relation to existing need.’ * * * Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed *
Id. at 699-700, 92 S.Ct. at 2666.
The Court’s recognition of First Amendment protection for newsgathering and the limitation of Branzburg’s balance to cases of good faith grand jury investigations were reiterated in the concluding paragraphs of Justice White’s opinion for the Court. There he again stated that
news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.
408 U.S. at 707-708, 92 S.Ct. at 2670 (footnote omitted). These same themes, and “the limited nature of the Court’s holding,” were emphasized more strongly still by Justice Powell — the fifth member of the majority — in his concurring opinion:
The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. * * * As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. * * * Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective Order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.
Id. at 709-710, 92 S.Ct. at 2671 (emphasis added; footnote omitted).
While reporters have, since Branzburg, been required on some occasions to disclose confidential sources in grand jury investigations and at trials, the courts have consistently read Branzburg as recognizing the First Amendment interests of reporters in confidentiality and as requiring a judicial balancing before disclosure is ordered. For example, in Farr v. Pitchess, 522 F.2d 464, 467-468 (9th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976), the Ninth Circuit stated:
It is clear that Branzburg recognizes some First Amendment protection of news sources. * * * The precise holding of Branzburg subordinated the right of the newsmen to keep secret a source of information in face of the more compelling requirement that a grand jury be able to secure factual data relating to its investigation of serious criminal conduct.
And in Carey v. Hume, 160 U.S.App.D.C. 365, 369, 492 F.2d 632, 636, cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974), this court, before upholding an order of disclosure in a civil libel suit, adopted as its approach one in which “the court will look to the facts on a case-by-case basis in the course of weighing the need for the *1085testimony in question against the claims of the newsman that the public’s right to know is impaired.” In Carey the court found that the information sought “appears to go to the heart of appellee’s libel action,” id; compare Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973) (disclosure not required); in ordering disclosure, however, it cautioned that “[t]he courts must always be alert to the possibilities of limiting impingements upon press freedom to the minimum; one way of doing so is to make compelled disclosure by a journalist a last resort after pursuit of other opportunities has failed.” Id. at 639. See also Cervantes v. Times, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973); Bursey v. United States, 466 F.2d 1059, 1090 (9th Cir. 1972) (contempt convictions for refusal to answer sweeping grand jury questions reversed; rehearing subsequent to Branzburg denied); Morgan v. State, 337 So.2d 951 (Fla. 1976) (reversing contempt conviction of reporter where grand jury was not investigating a crime).
The First Amendment interests of journalists in gathering and disseminating news were addressed most recently by the Supreme Court in Zurcher v. Stanford Daily, supra. In that case the Court upheld the search of a newspaper office on the basis of a warrant issued by a judicial officer after a probable cause showing. In doing so, however, the Court did not deny that the First Amendment was implicated by the search of newspaper offices. Rather, the dispositive factor was that so long as the officer issuing the warrant “take[s] cognizance of the independent values protected by the First Amendment” in determining whether the search is reasonable,16 the procedures afforded by the warrant requirement are sufficient to protect the newspaper’s First Amendment rights.
In light of Branzburg and these subsequent decisions, I think there can be no question but that newsgathering does qualify for First Amendment protection. Nor can there be any doubt that newsgathering encompasses contacts with confidential sources of information, who may serve as the first step in the process of gathering, editing, and distributing information to the public. And the circumstances of this case, more strikingly than testimony before a grand jury, betray the potential for substantial infringement of this confidentiality and, with it, substantial burdening of the First Amendment rights of reporters — and of the flow of information to the public.
As a practical matter, appellants may often have little choice but to use long distance telephone lines to communicate with confidential sources outside the immediate area in which they work. Their toll billing records will therefore include information which can easily be used to identify their news sources — including those sources who would refuse to provide information in the absence of solemn and reliable assurances of confidentiality. Release of these records, in contrast to narrow grand jury questioning with regard to a particular crime or crimes, does, in effect, force “wholesale disclosure of names.” Branzburg v. Hayes, supra, 408 U.S. at 700, 92 S.Ct. 2646. The Government learns not only the names of individuals “implicated in crime or possesspng] information relevant to the grand jury’s task,” id. at 691, 92 S.Ct. at 2661, but also the names of all the sources with whom the reporter has communicated, many of whom may be individuals who bear no relation to any potential criminal investigation and thus would never be subject to disclosure through grand jury proceedings.17 In*1086deed, the possibility that their names may secretly become available to the Government may “chill” sources generally, see Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Zwickler v. Koota, 389 U.S. 241, 245-252, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), thus denying the public information by depriving the journalist of one of his more important means of information gathering.
And once a reporter’s records are released, the damage is done. The Government can immediately identify all of the reporter’s confidential sources, and the subsequent return of the records, or even a monetary award, cannot undo the injury. Moreover, AT&T’s release of toll billing records is not limited to subpoenas from grand juries charged with the “essential task” of investigating crime necessary to “securing the safety of the person and property of the citizen,” Branzburg v. Hayes, supra, 408 U.S. at 700, 92 S.Ct. at 2666, and subject to judicial supervision. Forty-seven Government agencies, many with jurisdiction unrelated to enforcement of criminal laws, possess authority to request and obtain such records,18 usually in secret, on their own initiative, and without any judicial control.
B. Procedural Protections Under the First Amendment
Having recognized a substantive First Amendment interest on the part of appel*1087lants here — a recognition which, I think, the majority today must share — the question then becomes whether procedures for prior judicial scrutiny should be afforded appellants as a matter of First Amendment right. As the situation currently stands, no such scrutiny is available. Government summonses are issued without any form of judicial participation, and without any requirement of a showing equivalent to probable cause. The telephone companies themselves have no rights or interests to protect and therefore no basis and little incentive for challenging the scope or substance of the requests they receive. And because no notice is provided, appellants lack the opportunity to protest to a court, a right they would have if, as in Branzburg, they themselves were subpoenaed to testify or produce records in their possession.
In theory, of course, I think there can be no question that should appellants learn of government subpoenas for their records, they would have standing to go to court and move that such subpoenas be quashed. While the subpoenas here are addressed to the telephone companies rather than to appellants, the Government’s argument that this fact renders them immune from challenge by appellants seems to me clearly without merit.19 A similar argument was summarily rejected by this court in United States Servicemen’s Fund v. Eastland, 159 U.S.App.D.C. 352, 488 F.2d 1252 (1973), rev’d on other grounds, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), in which a political association sought to enjoin execution of a congressional subpoena for the association’s bank records. We stated in that case: “If the forced disclosure of the information concerning contributors to and membership in the appellant association violates its First Amendment rights, then it is too clearly an aggrieved person when a third person is under compulsion by the defendants to disclose this information to warrant discussion.” 159 U.S.App.D.C. at 361, 488 F.2d at 1261. While reversing our decision on the merits on the ground of congressional immunity, the Supreme Court affirmed our holding that the Fund had standing to challenge the subpoena. 421 U.S. at 501 & n.14, 95 S.Ct. 1813. More recently, in United States v. AT&T, 185 U.S.App.D.C. 254, 567 F.2d 121 (1977), a suit brought by the Justice Department to enjoin AT&T from complying with a congressional subpoena, this court found that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party. * * * The fact that the Executive is not in a position to assert its claim of constitutional right by refusing to comply with a subpoena does not bar the challenge * * * 185 U.S. App.D.C. at 262, 567 F.2d at 129.
But while there can be no doubt that appellants do have the right to challenge subpoenas or summonses for their toll billing records, the current practices of the Government and AT&T serve effectively to deprive them of any opportunity to do so. The Government itself does nothing to ensure that notice is provided. And as for AT&T, while its policy purports to make notice to the subscriber the general rule, in 90 percent of the 32,000 instances in which individual toll records were provided to the Government between March 1, 1974 and June 30, 1975, no notice was ever given to the subscriber. JA 227 — 229. The First Amendment rights of appellants in this sit*1088uation are thus protected only to the extent that they happen to learn of a request for their records either through the unlikely receipt of a phone call from the telephone company — and only one call is made even where notice is provided20 — or through some other source of their own.
It is this purely random availability of procedural protections for First Amendment rights which I find wholly unacceptable. And, far from representing a safeguard that is in any sense unique, provision of judicial scrutiny has long been recognized as a fundamental element of First Amendment freedoms. Beginning primarily in the obscenity area and extending into other areas where First Amendment rights are at stake, the Supreme Court has insisted on procedural safeguards which demonstrate “the necessary sensitivity to freedom of expression.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 639 (1965). Such procedures do not serve as a form of equitable relief; to the contrary, they are grounded directly on the First Amendment and “assume an importance fully as great as the validity of the substantive rule of law to be applied.” Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958).
The critical element in such procedures has been the availability of “judicial superintendence” to ensure that First Amendment rights are protected. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). In Freedman v. Maryland, supra, for example, a Maryland statute providing for advance prescreening of motion pictures was struck down on the ground that it did not provide “for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. * * * Only a procedure requiring a judicial determination,” the Court found, “suffices to impose a valid final restraint.” 380 U.S. at 58, 85 S.Ct. at 739.21 And certainly, as Professor Monaghan has noted in detailing the development of First Amendment procedural requirements, “[i]f the Constitution requires elaborate procedural safeguards in the obscenity area, a fortiori it should require equivalent procedural protection when the speech involved — for example, political speech — implicates more central first amendment concerns.” Monaghan, First Amendment “Due Process”, 83 Harv.L.Rev. 518, 519 (1970).
Any lingering doubt as to the importance of judicial scrutiny to protection of First Amendment rights — and, in particular, to newsgathering rights such as those at issue here — must be laid to rest by the Supreme Court’s decisions in Branzburg v. Hayes and Zurcher v. Stanford Daily. The determinative vote in both those decisions was cast by Justice Powell on the basis of his view that the majority opinions did indeed provide for prior judicial scrutiny and thus afforded sufficient protection to the First Amendment rights at stake. The pertinent language from his opinion in Branzburg is quoted in full above,22 and a similar emphasis is found in Stanford Daily. There the question was not whether any judicial scrutiny is required where the First Amendment rights of reporters and newspapers are endangered by a search of a newspaper office; rather, the issue was whether the protections afforded by the Fourth Amendment warrant requirement were sufficient for First Amendment purposes as well. The majority, reasoning that the requirements of the Fourth Amendment must be applied with “scrupulous exactitude” where First Amendment rights are at stake, concluded that, if so applied, those requirements were sufficient to protect the constitutional interests of the reporters. 436 U.S. at 547, 98 S.Ct. 1970, quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 *1089L.Ed.2d 431 (1965). In his concurrence Justice Powell again stressed that the majority’s decision did protect First Amendment interests through the obligation imposed on the judicial officer, in determining whether a warrant should issue, to take account of First Amendment interests:
This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile necessarily would be reasonable in supporting the search of a newspaper office. As the Court’s opinion makes clear * * * the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justification for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment — such as those highlighted by Mr. Justice Stewart — when he weighs such factors. If the reasonableness and particularity requirements are thus applied, the dangers are likely to be minimal. * * *
436 U.S. at 569-70, 98 S.Ct. at 1984 (emphasis added; footnote omitted). Thus in both Branzburg and Stanford Daily the decisions of the Supreme Court turned explicitly on the availability of adequate judicial protections to safeguard First Amendment rights. In Branzburg, as Justice Powell pointed out, the reporter could seek judicial review of the grand jury subpoena through a motion to quash; at that point the court was charged with “balanc[ing] [the] vital constitutional and societal interests on a case-by-case basis.” 408 U.S. at 710, 92 S.Ct. at 2671. Similarly, the warrant procedure, as upheld in Stanford Daily, ensures that First Amendment rights of the press will not be jeopardized by searches unless and until a judicial officer has first concluded that the search is reasonable in light of the First Amendment values at stake. And an initial showing of need is required in both cases: a grand jury must demonstrate a reasonable need for evidence in order to justify production under a subpoena duces tecum, and a judicial officer is empowered to issue a warrant only upon a showing of probable cause.23
C. The First Amendment Balance
In this case, I think, the record clearly demonstrates that the potential intrusions on the First Amendment rights of the appellants are at least as great as those presented in Branzburg and Stanford Daily. And I am unable to discern a governmental interest in avoiding any form of judicial scrutiny which would distinguish this case from Branzburg and Stanford Daily. The procedural protections upon which the Court relied in both Branzburg and Stanford Daily, however, are completely lacking in this case. Here the question is not whether existing procedures for judicial scrutiny — through motions to quash or a warrant requirement based on probable cause — are sufficient to protect the First Amendment interests of appellants. For no such procedures are available.
In my view, the First Amendment mandates that they must be. While I would not impose protections greater than those available in Branzburg and Stanford Daily, I think it follows from those two decisions and from the interests asserted before us today that some form of prior judicial scrutiny must be available. Whether this scrutiny is provided by giving notice to the reporter — so as to afford an appellant here, like the reporters in Branzburg, an opportunity to file a motion to quash — or by a requirement — like the warrant requirement upheld in Stanford Daily — that government receive prior judicial approval before it secures an appellant’s records, is not critical. But some judicial scrutiny must be available.
*1090In reaching this conclusion, I do not suggest that every government investigative technique which ever poses any threat to First Amendment freedoms necessitates imposition of full procedural protections, no matter what the cost to government. As the Supreme Court’s opinions have consistently made clear, what is called for in determining what procedural protections must be afforded is a consideration of the scope of intrusion on First Amendment rights as well as the legitimate interests of government in avoiding whatever costs might accompany imposition of procedural safeguards. In this case, I think, consideration of these factors clearly warrants striking the categorical balance in favor of protection for appellants’ interests and thus affording them the same procedural safeguards as those available to the reporters in Branzburg and Stanford Daily.
1. The Scope of the Intrusion
On the one hand, as noted earlier in setting forth the constitutional interest in newsgathering, the record clearly establishes that the danger posed to appellants’ First Amendment interests — and to the public interest in learning of the news — by unrestricted Government access to their toll billing records is a substantial one. The reporters, in the conduct of their professional endeavors, are engaging exclusively in activity protected by the First Amendment. Their use of business telephones for long distance calls is primarily if not exclusively for this protected activity — gathering news. See JA 167, 174—180, 195—197. To restrain or foreclose appellants from making use of their telephones for long distance calls is, in effect, to foreclose them from engaging in newsgathering activity; the burden involved is placed squarely and directly — and exclusively — on First Amendment rights.
That the practices of the Government and AT&T for disclosing appellants’ toll billing records do impose such a burden is also made clear by the record. The specific incidents of disclosure cited by appellants, it is true, occurred prior to adoption of AT&T’s formal policy in 1974. But the figures noted earlier make clear that such disclosure continues to be widespread, and that notice to the subscriber is the rare exception rather than the rule.24 The continuing and largely secret use of phone billing records in Government investigations on such a substantial scale poses serious obstacles to appellants’ performance of their professional duties and may chill their “free and robust exercise of the[ir] First Amendment rights * * *.” Zweibon v. Mitchell, 170 U.S. App.D.C. 1, 40, 516 F.2d 594, 633 (1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). And while concrete evidence is difficult to produce without compromising the confidentiality which appellants here seek to protect25 the record does contain incidents suggesting real and substantial harm to newsgathering as a result of disclosure without notice.
Appellants have offered a number of affidavits attesting to the critical importance of the telephone to effective newsgathering and asserting that at least some sources will refuse to communicate with reporters by long distance telephone where their confidentiality cannot in any way be protected.26 Indeed, in at least one case where toll billing records were disclosed in the past, the sources whose telephone numbers appeared on the records, with only one exception, never again provided any information to the journalist involved.27 Moreover, the *1091possibility that sources will be identified through toll billing records can and does cause reporters to limit their contacts with sources who might otherwise provide newsworthy material, and to curtail their use of an essential newsgathering device, the telephone. Thus David Rosenbaum, after learning of the IRS request for his telephone records, ceased contacting one potentially very useful source because he feared their relationship might become known. JA 183. At the same time, so long as providing information to a reporter by telephone often leads to automatic disclosure of one’s name to government authorities,28 many individuals who are potential sources may simply refuse to communicate with reporters, causing the reporters, as well as the public, to lose newsworthy information.
Even apart from the chilling effect of appellees’ disclosure practices on appellants’ current use of their telephones, a further, continuing burden is imposed by the Government’s practices once it secures the records. According to FBI agents, reporters’ toll records are kept in files indexed according to the reporter’s name, with access to these files available to virtually any FBI agent. JA 214-216. Thus the Jack Anderson toll records acquired by the FBI in 1971 remain on file and generally available to FBI employees. JA 224-225. Moreover, even with respect to the records of David Rosenbaum and the New York Times Washington Bureau, which IRS Commissioner Alexander ordered returned to C&P, some records remain available since the IRS failed to retrieve copies of “collateral requests” containing information from these records from district IRS offices.
2. The Governmental Interest
In striking a First Amendment balance the legitimate needs and interests of Government investigators must clearly be accorded substantial weight. This is particularly true where, as in at least some of the cases of Government demands for toll records, the Government is conducting investigations of criminal felonies. But this fact alone does not immunize every technique the Government employs in the pursuit of a legitimate investigation from First Amendment scrutiny. It is well established that the First Amendment imposes limits on what would otherwise be considered legitimate techniques of governmental investigation. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). And the “validation cf the broad subject matter under investigation does not necessarily carry with it automatic and wholesale validation of all individual questions, subpoenas, and documentary demands.” Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963).
In this case the issue is not whether the Government should ever have access to appellants’ toll billing records; it is simply whether some form of judicial supervision should be available prior to affording access to the Government. As to this latter question, I am unable to detect any substantial or legitimate Government interest in avoiding judicial scrutiny. For the objects of Government requests in this case — toll billing records — are subject to neither change nor destruction as a result of any delay or breach of secrecy which may accompany judicial supervision; the records are in ev*1092ery sense “frozen” in the hands, not of appellants, but of the telephone companies. Nor does the record suggest that disclosure of the existence of an inquiry which would accompany notice to appellants would generally pose a substantial obstacle to Government investigations. Indeed, the statement of one FBI agent, based on his 23 years of experience, with respect to the investigation of Jack Anderson suggests that this would rarely be the case:
A. Based on my experience as an FBI agent the crime had already been committed. The only thing that could have happened which would have hurt the investigation by notifying him that we subpoenaed his toll records was that we wouldn’t get the toll records, that he would some way stop us from getting them. Once we got the toll records, notifying him wouldn’t have hurt us at all because he couldn’t change anything at that point or impeed [sic ] the investigation.
Deposition of James F. Gaffney, JA 216-217.
Once appellants have been notified of Government demands for their toll billing records, the burden of invoking the judicial process to test the appropriateness of disclosure would rest with them. In situations where no tenable First Amendment claim can be made in opposition to disclosure, appellants can be expected to forego the opportunity to initiate fruitless proceedings. Accordingly, a system of prior notice, by placing the burden of going forward on the appellants, would tend to minimize the administrative and legal costs the Government would have to bear. There would be no need for it to establish before a court the legitimacy of every request for toll billing records. On the contrary, only those raising genuine First Amendment issues are likely to be challenged — and those are, of course, precisely the requests that should be screened in light of the constitutional interests at stake.
That a system of prior notice and opportunity to challenge would minimize the burdens imposed on the Government can be seen by reference to other contexts. For example, the House Banking Committee recently approved for inclusion in the Safe Banking Act provisions requiring that notice of most official demands for a bank customer’s financial records be given prior to their disclosure so that the customer has a chance to test the validity of the official demand. The provision had the support of Justice Department officials who urged that it would meet the congressional goal of protecting the individual while easing the burdens placed on the Government by discouraging “frivolous” challenges and deliberate stalling tactics.29 Similarly, Congress in 1976 required the Internal Revenue Service to provide prior notice to taxpayers of various summonses for documents in the possession of third parties.30 Far from leading to administrative havoc, the response was quite limited. Only about three percent of the thousands of summonses issued by the Service since the law took effect have been challenged and the agency has won those tests in court.31 In the instant case, there seems to be every reason to suppose that an analogous system of prior notice and opportunity to challenge would be an effective way to accommodate the potentially conflicting interests at play.
While we have been presented with no evidence suggesting any legitimate need for secrecy as a general rule, I recognize the possibility that a case may arise in which disclosure of the existence of a particular investigation occasioned by notice to appellants would substantially impair the conduct of that investigation.32 Such situa*1093tions present clear analogies to Fourth Amendment cases, where notice is generally inconsistent with the governmental need to secure records or other materials and ex parte warrants are therefore essential to preservation of the objects of government search. In the instant case such dangers are not present: because the records in question relate only to past events, and because they are in the hands of the telephone companies, there is no basis for concern that they will be removed or destroyed if notice is given to appellants. But where notice will in fact generate harms of another sort — where it will substantially hamper a Government investigation which is then at a stage where secrecy as to its existence remains critical — then notice need not be provided.
This does not mean, however, that judicial scrutiny should be avoided as well. In United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), the Supreme Court held that electronic surveillance authorized by the President for internal security matters is not exempt from the Fourth Amendment’s requirement of prior judicial approval. 407 U.S. at 321, 92 S.Ct. 2125. In so doing the Court rejected the argument that the warrant requirement is inconsistent with the need to maintain secrecy in national security investigations: “Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases.” Id. at 320-321, 92 S.Ct. at 2138. And in Zweibon v. Mitchell, supra, this court extended Keith’s holding to surveillance of domestic organizations on foreign affairs grounds. The argument that the need for secrecy is sufficient to vitiate the warrant requirement was rejected in Zweibon as “no more persuasive in the foreign security context” than in the domestic security context involved in Keith. 170 U.S.App.D.C. at 54, 516 F.2d at 647. “Since the warrant proceeding is conducted ex parte,” the Zweibon court reasoned, “disclosure of information can be restricted to the judge; administrative personnel can be provided by the Government should he require clerical or other assistance.” Id.
These cases clearly establish that, even in the most sensitive circumstances involving domestic security and foreign affairs, the need for secrecy does not foreclose prior judicial scrutiny on an ex parte basis. Thus, while notice to appellants of requests for their toll billing records need not be given where it would substantially impair a Government investigation, protection of appellants’ constitutional interests requires that these requests be subject to prior judicial scrutiny in ex parte proceedings. The need for secrecy may foreclose an adversary hearing accompanied by notice; it does not, however, justify leaving appellants with no judicial protection for their constitutional rights.
III. THE APPROPRIATE REMEDY— THE FUNCTION OF JUDICIAL SUPERVISION
The majority agrees with me, I think, that appellants’ newsgathering activities— including their use of the telephone to communicate with confidential sources — are protected by the First Amendment. The majority agrees, too, that in at least some cases Government requests for appellants’ toll billing records may unconstitutionally impinge on their First Amendment freedoms. But the majority takes the position that the only purpose which would be served by prior judicial scrutiny would be to “screen” out cases of bad faith harassment by the Government. And since such cases are likely to be rare, the majority concludes that a right to judicial scrutiny is unneces*1094sary and should not be recognized. Instead, the majority provides that as a matter of equitable relief, if an individual appellant can establish that he is in imminent danger of being unlawfully deprived of his constitutional rights by disclosure of his records, then and only then he is entitled to notice.
The majority’s conclusion here, it seems to me, is based upon a fundamental misconception of the purpose of prior judicial scrutiny. To begin with, as noted earlier, the First Amendment does impose limits on otherwise legitimate government investigative techniques; it does not serve only as a bar to bad faith harassment, which is unlawful in any event without reference to the First Amendment. “Where First Amendment rights are asserted to bar the governmental interrogation,” the Supreme Court has held, “resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” Barenblatt v. United States, 360 U.S. 109, 126, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115 (1959). Indeed, the Supreme Court has gone further, holding that “[i]t is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling [government] interest.” Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. at 546, 83 S.Ct. at 893.
The majority, however, takes the position that Branzburg and Stanford Daily establish that where what is involved is a good faith criminal investigation, the individual appellant’s First Amendment interest in newsgathering must always be subordinated to the Government interest so that no purpose would be served by affording judicial scrutiny. But even if correct, the majority’s view would not provide an adequate resolution to this suit. For criminal investigations, whether in good or bad faith, represent only one of the myriad subjects of Government investigations for which access to toll billing records is available. If notice or judicial scrutiny is required in noncriminal cases — and I think the majority must acknowledge, consistent with its rationale, that it is — then the Government must provide it in such cases unless it secures prior, ex parte judicial approval. The fact that AT&T’s policy purports to give notice in noncriminal investigations does not relieve the Government of its obligation to ensure that notice is provided or judicial approval secured, particularly where the record discloses so strikingly the practical inefficacy of AT&T’s policy in alerting subscribers to requests for their records.
More basically, I must disagree with the majority that Branzburg and Stanford Daily eliminate the need for any judicial consideration of First Amendment values in a criminal investigation so long as the Government is not acting in bad faith. In his concurrence in Branzburg Justice Powell was quite explicit in his statement that balancing on a ease-by-case basis, what he termed the “tried and traditional way of adjudicating such questions,” was required where reporters claimed a privilege against responding to certain grand jury inquiries. His concern was not simply with whether the Government was seeking to harass a newsman; he also recognized that circumstances might arise in which a newsman “is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation,” and that judicial balancing would be necessary to resolve such claims. Similarly, in Stanford Daily the Court did not hold that so long as the government was investigating a crime in good faith First Amendment values were irrelevant to the determination whether a warrant should issue; as Justice Powell emphasized, “[A] magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment” in determining whether the requirements for a warrant are met. 436 U.S. at 570, 98 S.Ct. at 1984.
This is not to say that the Government’s interest in investigating violations of criminal laws is not a substantial one, sufficiently compelling to allow the Government ac*1095cess to toll billing records. Indeed, as the majority so strongly emphasizes, this interest was accorded determinative weight in Branzburg33 Nonetheless, these decisions do reflect a recognition that, even where a criminal investigation is involved, the function of judicial scrutiny — whether it be'in judging motions to quash grand jury subpoenas, structuring Fourth Amendment search warrants, or, I would add, reviewing Government demands for toll billing records — is not simply a screening function. Far from simply deciding whether an investigation is in good or bad faith, or a request correct or mistaken,34 the court is charged in First Amendment cases with ensuring that the Government action is justified in light of the constitutional interests at stake *1096and, if so justified, that it is tailored narrowly so as not to infringe unduly on First Amendment freedoms. “An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ ‘means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In other words, the order must be tailored as precisely as possible to the exact needs of the case.” Carroll v. President & Com’rs of Princess Anne, 393 U.S. 175, 183-184, 89 S.Ct. 347, 353, 21 L.Ed. 325 (1968).
In this case, then, the task of judicial scrutiny is not only to determine whether a Government investigation is in good or bad faith and whether the Government’s interest in securing an appellant’s toll billing records outweighs the individual’s First Amendment interest in maintaining their confidentiality. Even where the Government investigation, whether civil or criminal, is being conducted in good faith, and even where the court has determined that the Government’s interest outweighs the appellant’s, the court still retains responsibility to ensure that First Amendment rights are not restricted any more than is necessary to serve the Government interest.35 This means, first of all, that the scope of the Government request must be considered carefully and limited to the maximum extent possible: the Government’s practice, as evidenced by the record in this case, of securing records for time periods or telephones unrelated to the investigation taking place cannot be justified. Nor can the Government’s practice of permitting broad access to toll records which have been secured be permitted.36 Consistent with the First Amendment, there can be no justification for making records which have been secured on the basis of one investigation broadly available to other Government officials engaged in wholly unrelated tasks. A court order permitting access should take account of these considerations and should establish limits on both the scope of disclosure and official access to the records once they have been disclosed.
IV. CONCLUSION
The result reached by the majority today fails to provide any assurance whatever that the rights of appellants will not be violated by future disclosures — either because those disclosures are broader than is necessary to serve the Government interest or because they are wholly unjustified by the investigation involved. Under the majority’s solution appellants are not entitled to prior judicial scrutiny unless and until they are able to meet the difficult if not impossible burden of establishing to a court that they are in imminent danger of having their records disclosed as part of a secret bad faith Government investigation undertaken to harass them. While I agree that any individual who can meet this burden should have recourse to the courts, the appropriate remedy in such cases is not an order that the individual receive notice pri- or to the constitutional violation, but rather an injunction prohibiting the Government official in question from violating his rights. Every individual has a right to be free of bad faith Government harassment, and one need not invoke the First Amendment to protect this right.
Appellants here, however, are not seeking equitable relief to remedy past violations or deter imminent ones. The harms of the past cannot be undone, and those of the future cannot be predicted with the accuracy that the majority’s theory would seem to necessitate. What appellants do seek is a declaration that, in the circumstances of *1097this case, judicial scrutiny is available to them to protect their First Amendment rights.
Without attempting in the abstract to apply constitutional standards to classify comprehensively those situations in which disclosure would or would not be appropriate, I think it clear that the record before us contains admitted instances of mistaken or abusive requests where the reporter’s interest might well have been found by a court to be weighty enough to foreclose or limit disclosure. While I join with the Government and AT&T in hoping that such mistakes and abuses have permanently ceased, we should not — in view of the record in this case and the lessons of recent years — so trust to the good faith of all that we ignore the need for continuing judicial safeguards to ensure a free and vigorous press. For as the Supreme Court has pointed out in a related context: “History abundantly documents the tendency of Government — however benevolent and benign its motives — to view with suspicion those who most fervently dispute its policies.” United States v. United States District Court (Keith), supra, 407 U.S. at 314, 92 S.Ct. at 2135. The press, in performing its constitutionally protected functions, may clearly be subject to such suspicion.
In reaching the conclusion that appellants are entitled to judicial safeguards, I do not suggest that journalists generally enjoy greater First Amendment freedoms than the public. The people’s right to know is primary. But the function of the journalist in our society is to assist in informing the public — honestly and fairly. And that high calling is diminished when Government, however well intentioned, secretly jeopardizes the journalists’ sources of information without prior judicial approval.
I respectfully dissent.
. Jack Anderson, Marquis W. Childs, Emmett Dedmon, Richard Dudman, Morton Mintz, Bruce Morton, John Pierson, James R. Polk, David E. Rosenbaum, Richard Salant, Daniel Schorr, and Frederick Taylor.
. Dow Jones & Co., Inc. and The Knight Newspaper Group of Knight-Ridder Newspapers, Inc.
. AT&T and the associated companies of the Bell System operate a nationwide telecommunications system. Actual telephone service is provided by the individual associated companies, which also maintain their subscribers’ toll billing records.
. Letter of F. Mark Garlinghouse, Vice President and General Counsel, AT&T, to Lloyd N. Cutler, December 28, 1973, JA 25-26 (“You are correct that no notice is given to any subscriber whose billing records are the subject of process. * * * Nor do we believe the law requires or indeed permits notification of a third party prior to compliance with legal process.”).
. Apart from the five incidents admitted by appellees, discussed in text and footnote in this section, appellants alleged and introduced documentary evidence to prove that in February 1973 the federal government obtained James Polk’s residential toll records without any form of judicial or administrative process. According to the documentary evidence introduced, the records were sought at the request of a White House official as part of a larger effort to learn embarrassing personal and financial information about Polk which could be used to halt his stories relating to Herbert Kalmbach’s campaign contribution activities. JA 181-186.
. On another occasion the FBI obtained toll records of Anderson and one of his employees while investigating an informant’s report that Mr. Anderson had arranged to obtain documents removed from the Bureau of Indian Affairs by members of a militant Indian group. JA 127 — 129, 261-264. These records comprised approximately 1,500 toll calls including some, in accordance with the FBI request, made as many as three months before the documents were removed. JA 264-265.
. The six-month period chosen was unrelated to the investigation itself; rather, it was based on the IRS inspector’s understanding “that they only maintained records for a six-month period of time. * * * [H]ad the phone company had more than just the six-month period of time involved, I would have obtained all of the records.” Deposition of Michael De Sanctis, JA 200.
As soon as the New York Times learned of this matter and communicated its concern to IRS Commissioner Alexander, the Commissioner immediately ordered all records returned to the telephone company. JA 194.
. Letter of Lloyd N. Cutler to John DeButts, Chairman of the Board, AT&T, December 21, 1973, JA 17-21. See also JA 22-24 (listing additional names of journalists seeking assurances as to their records).
. JA 19. The journalists also informed AT&T of their intent to take “appropriate legal action” should AT&T’s assurance of reasonable prior notice in the future not be forthcoming. JA 21.
. The AT&T policy provides:
Except as stated below, the subscriber whose toll billing records are subpoenaed by a government agency or legislative body (Federal, State or Local), in a civil or criminal investigation, shall automatically be notified by telephone, the same day that the subpoena or summons is received (only one attempt by telephone is necessary). This shall be followed by written notification within twenty-four hours after the receipt of the subpoena or summons.
JA 40.
. The deferral provision applies to requests from legislative bodies and to requests related to felony investigations. Counsel for AT&T at oral argument expressed uncertainty as to whether the deferral provisions were applicable whenever an investigation being conducted might — at some point — lead to criminal charges.
. While the majority devotes much attention to the protections afforded by the Fourth Amendment, appellants have raised no claim here for relief under the Fourth Amendment. What appellants seek in this case, at least as against the Government, is not protection of their privacy in and of itself, but rather protection of their newsgathering activities which fall squarely within the First Amendment.
But while appellants have made no claim based on privacy per se against the Government, AT&T’s disclosure of toll billing records without notice calls into question the company’s privacy obligations to its customers. The statutory scheme of the Communications Act regulating common carriers, see 47 U.S.C. § 605 (1970), as well as AT&T’s own pronouncements and publicly stated policy of respecting subscriber privacy, see Washington Post, June 27, 1978, p. El, col. 6, suggest that one of the essential elements in the contractual relationship between the appellants and AT&T is the appellants’ expectation of privacy, not only with respect to the content of communications over AT&T lines, but also with respect to the identities of the participants in those communications. And AT&T’s responsibility for protecting that privacy is intensified by the fact that it is a common carrier with a legal monopoly.
Rather than respecting that responsibility, AT&T in this case entered into an agreement with the Government secretly to disclose records upon Government request. It has not insisted that such requests be accompanied by court orders directing disclosure, cf. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (warrant and court order required by New York Telephone before it would assist FBI in installing pen register devices on subscribers’ telephones), nor has it taken upon itself to ensure that notice is actually provided to subscribers of Government requests, even though it recognizes, as it must under our cases, that the appellants would have standing to challenge the Government subpoenas if so notified. By failing to take such steps, AT&T is effectively acting in concert with the Government to deny the appellants the opportunity to protect any rights they may have. Even if there were no First Amendment concerns in this case, AT&T should be precluded from so acting with respect to its own subscribers.
. Toll billing records, maintained by the operating telephone companies in the AT&T system, contain the date, time, and duration of all toll calls charged to a subscriber’s number, and the number called or, if the call is collect, the calling number. Commercially available directories may be, and have been, used by Government investigators to identify individuals according to their telephone numbers. JA 203. These directories, called “Telekeys,” list telephone numbers numerically and give the name of the subscriber for each number listed.
. I agree with the majority that, while “AT&T is plainly in ‘active concert or participation’ with the Government in the activity precipitating plaintiffs’ grievance,” majority op. 192 U.S. App.D.C. at-, 593 F.2d at 1075 we need not decide whether this participation amounts to governmental action, since adequate injunctive relief and compliance by AT&T does not depend on such a determination, id. 192 U.S.App. D.C. at-, 593 F.2d at 1042.
. The reporters argued that they should not be required either to appear or to testify "until and unless sufficient grounds are.shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.” Branzburg v. Hayes, 408 U.S. 665, 680, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972).
. Zurcher v. Stanford Daily, 436 U.S. 547, 570, 98 S.Ct. 1970, 1984, 56 L.Ed.2d 525 (May 31, 1978) (Powell, J., concurring).
. This factor distinguishes not only the grand jury questioning at issue in Branzburg, but also Judge Wilkey’s hypothetical questioning of neighbors and taxi drivers as to the identity of a particular source, Wilkey op. 192 U.S.App. D.C. at---, 593 F.2d at 1048-1049. The better hypothetical analogy would be to questioning neighbors and taxicab drivers as to every individual with whom a reporter had communicated for as long as a six-month peri*1086od — almost all of whom would be unrelated to the events under investigation. The difference between this situation and that suggested by Judge Wilkey, in terms of the burden thereby imposed on newsgathering, may admittedly be more one of degree than of kind. While this is not the time or place to seek to isolate and resolve all of the possible questions which might be raised as to the proper scope of the newsgathering protection afforded by the First Amendment, it does seem clear that a difference in the degree of a burden generally imposed and in the justifications for imposing that burden may be so substantial as to justify different degrees of procedural protections.
. These agencies are:
1. National Labor Relations Board
2. Nuclear Regulatory Commission (Atomic Energy Commission)
3. Railroad Retirement Board
4. Federal Energy Administration
5. U.S. Tariff Commission
6. National Transportation Safety Board
7. Federal Maritime Commission
8. Federal Power Commission
9. Federal Trade Commission
10. Department of Agriculture
11. Small Business Administration
12. Interstate Commerce Commission
13. Civil Aeronautics Board
14. Securities and Exchange Commission
15. Veterans Administration
16. Coast Guard
17. American Indian Policy Review Commission
18. Council on Wage & Price Stability
19. Federal Election Commission
20. Federal Paper Commission
21. Commission on the Organization of the Government for the Conduct of Foreign Policy
22. Law Enforcement Assistance Administration
23. Department of Transportation
24. National Commission on Electronic Funds Transfers
25. National Transportation Safety Board
26. Environmental Protection Agency
27. National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance
28. National Commission on Consumer Finance
29. Public Land Law Review Commission
30. Subversive Activities Control Board
31. Federal Metal and Nonmetallic Mine Safety Board of Review
32. Interagency Advisory Commission on Compensation for Motor Vehicle Accident Losses
33. Federal Communications Commission
34. Federal Home Loan Bank Board
35. Internal Revenue Service
36. Commission on Civil Rights
37. FBI/Department of Justice
38. Commission on Government Procurement
39. Commission on the Review of the National Policy Toward Gambling
40. Detention Review Board
41. Foreign Claims Settlement Commission
42. Department of Health, Education and Welfare
43. Department of Housing and Urban Development
44. Consumer Product Safety Commission
45. Department of Interior
46. Federal Deposit Insurance Corporation
47. National Commission for Product Safety List submitted by counsel for appellants at oral argument.
. Appellees’ reliance on such cases as United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); and Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), in support of this argument is clearly misplaced. In each of these cases the Supreme Court determined that the parties seeking standing would suffer no constitutional infringement were the records in question released. It was the absence of any constitutional interest subject to infringement — rather than the fact that third-party subpoenas were involved — which left the parties in these cases without standing to challenge the subpoenas. Because the appellants here do possess a constitutional interest which will be impaired, at least to some extent, by release of their toll billing records, their situation is clearly distinguishable from those involved in the cases relied upon by appellees.
. See at---& n.10 of 192 U.S.App.D.C., at 593 F.2d at 1081-1082 & n.10, supra.
. See also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Carroll v. President and Comr’s of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).
. See 192 U.S.App.D.C., at -, 593 F.2d at 1084 supra, quoting 408 U.S. at 709-710 92 S.Ct. at 2670-2671.
. See Note, Search and Seizure of the Media: A Statutory, Fourth Amendment and First Amendment Analysis, 28 Stan.L.Rev. 957, 986 (1976).
. See 192 U.S.App.D.C. at---, 593 F.2d at 1081-1082, supra; JA 227 229.
. Introduction of affidavits or depositions of particular sources to ascertain the specific reasons why they ceased providing information to reporters who are appellants in this action would be inherently inconsistent with maintaining the confidentiality of these sources.
. See, e. g., JA 167 (Jack Anderson); 174-175 (Richard Dudman); 176 (Morton Mintz); 177-180 (Bruce Morton); 195-197 (Daniel Schorr).
. See JA 267 (Jack Anderson). While injury to individuals other than appellants does not, of course, contribute to their standing, it is worth noting, in support of appellants’ claims as to how these records are used and their potential effect on newsgathering, that one of Jack Anderson’s sources lost his job as a city attorney *1091following his identification by the FBI as an Anderson source on the basis of Anderson’s toll records. Id.
. For this reason 1 must disagree with Judge Robinson’s suggestion that the burden in Branzburg “where questions put directly to reporters might occasion a breach of the trust inspiring the confidential relationship with their sources” is more substantial than the burden involved in this case. Robinson op., 192 U.S.App.D.C. at -, 593 F.2d at 1073. So long as the information in question must be secured directly from the reporter himself, the reporter is able at least to assure his sources that he will exhaust all legal procedures, if not face contempt and imprisonment, rather than reveal their identities. Here, on the other hand, the reporter cannot even assure his sources that judicial procedures will be exhausted to determine whether the Government request is indeed unjustified, let alone that confidentiality will be maintained.
. See Legal Times of Washington, June 12, 1978, p. 3. See also Washington Post, July 13, 1978, p. 1; Washington Post, July 17, 1978, p. A14.
. 26 U.S.C. § 7609, Added P.L. 94-455, Title XII, § 1205(a), Oct. 4, 1976, 90 Stat. 1699.
. Washington Post, July 17, 1978, p. A14.
. This may be true because knowledge of the fact of an investigation would impair other aspects of the investigation or because, in the case of an investigation into a continuing course of conduct, future toll billing records *1093which the Government might legitimately secure would be rendered useless if the individual involved were alerted to the Government’s interest in his communications.
. Of course, Branzburg did not involve the question whether reporters should be afforded an opportunity to secure prior judicial scrutiny of requests for their testimony to ensure that the requests were justified and properly limited. In Branzburg, as in all cases where an individual is subject to a grand jury subpoena, such an opportunity is available. It was the correctness of the particular judicial decisions on such motions to quash — rather than any question whether an opportunity to challenge must be available — which the Supreme Court was reviewing in its Branzburg decision.
Moreover, on the merits Branzburg presented an especially compelling case for disclosure in a number of respects. First, each of the reporters called to testify was himself an eyewitness to the alleged criminal activity under investigation by the grand jury. As a result, the case for disclosure was much stronger than in the more common instance where the reporter has merely been informed of such activity. Indeed, as one commentator has noted, “The Court’s reluctance to give up what is probably the best evidence relating to relevant activity and its realization that this piece of evidence available to the newsperson would have existed whether or not the press was involved make this a particularly hard case for allowing a citizen— even a newsperson — to refuse to testify.” Note, supra note 23, 28 Stan.L.Rev. at 976-977. Moreover, in Branzburg all three reporters refused not merely to respond to specific questions posed by the grand jury, but even to appear before the grand jury in answer to five of the six subpoenas. Clearly, refusal to appear presents a far more sweeping claim of privilege from a citizen’s duty to offer evidence than does a refusal to answer selected questions or provide specific documents. Id. at 977. Finally, in Branzburg there was no question that the grand juries were operating in good faith and were in the process of discharging their legitimate function of investigating crime. 408 U.S. at 699-700, 92 S.Ct. 2666. Should these circumstances later change, the Branzburg Court made clear, the reporters involved could avail themselves of judicial processes to secure relief from their obligation to respond. Id. at 707-708, 92 S.Ct. 2670.
In focusing on these limiting aspects of Branzburg, I do not mean to suggest that a reporter’s constitutional interest in confidentiality is of such weight that it should never yield in the face of claims less substantial than those involved in Branzburg. To do so would be to ignore subsequent decisions by this and other courts where reporters have in fact been forced to disclose names of sources in circumstances admittedly less compelling than those presented in Branzburg. See, e. g., Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 632, cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974); Tribune Publishing Co. v. Caldero, 98 Idaho 288, 562 P.2d 791 (1977), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977). But these decisions neither establish nor even suggest that the reporter’s interest is so insubstantial that it should automatically yield in the face of any governmental request. Quite the contrary, our most recent decision on First Amendment protection for newsgathering, Sherrill v. Knight, 186 U.S.App. D.C. 293, 569 F.2d 124 (1977), viewed the reporters’ First Amendment interest as sufficiently compelling to require procedural safeguards before access to White House press facilities could be denied. There we stated:
White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. * * * Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information. * *
569 F.2d at 129-130 (footnote omitted).
. Appellant Jack Anderson testified that the FBI, in seeking the toll billing records of his employees, sought and secured the records of one Charles Elliott of Kensington, Maryland, whose only connection to Mr. Anderson was that he had the same name as an Anderson employee. JA 168-171.
. See United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (requiring that government action imposing incidental restraints on First Amendment rights be narrowly tailored to further an “important or substantial governmental interest” or development of categorical “balances” will be required).
. See 192 U.S.App.D.C. at-, 593 F.2d at 1091, supra; JA 214-216, 224-225.