specially concurring and dissenting;
With all respect for the court’s admirable effort to work out a satisfactory accommodation of the conflicting values and interests flowing from the sovereign’s claim of state secret privilege in this ease, I nevertheless disagree with critical parts of the analysis and reasoning by which the decision to remand is reached. Therefore, though I agree that remand is appropriate, I would do so for different reasons and consequently with a quite different mandate for further proceedings in the district court.
I
A claim by the national sovereign of state secret evidentiary privilege in litigation between private parties creates a problem that seems to me to be sui generis in the administration of justice.1 Accordingly, the *277appropriate solution may well be at odds with the judicial system’s ordinary response to the unavailability-for whatever reason2 -of particular items of evidence. That ordinary solution, as the majority points out, is simply to let this burden fall as it will on the parties to litigation. This solution, it is implied, preserves a “neutral” stance for the system and subjects the parties equally to what is simply another instance of those mischances of litigation that are inevitable in the workings of an adversary system, but that are made tolerable by the fact that in the long haul they essentially balance out.
This, I think, is not the appropriate response of the system where state secret privilege is involved. Foremost among several unique characteristics of this privilege is the fact that it is imposed at the behest of the same sovereign who provides the formal forum and mechanisms for resolution of private citizen disputes. Invocation of this privilege may therefore put in direct conflict two interests of the same public for whose benefit both privilege and litigation process are provided. When the sovereign determines that to further one of these public interests a substantial body of relevant evidence must not be made available in particular private litigation, I think that a different sort of “neutrality” in respect of the litigants is thereby commanded. The paramount concern of the system in such a case must of course be protection of the public interest that underlies the privilege. The secondary concern is to protect the other public and the private interests in allowing the dispute to be litigated in as full and free and normal a fashion as possible.
In assessing the latter concern, it seems to me that whether a litigant whose proof is affected by the privilege is nominally aligned as plaintiff or defendant, and whether he is asserting a claim or a defense, is essentially irrelevant. As great a duty is owed the citizen who as defendant is dependent upon privileged evidence to establish a defense as to the citizen who as claimant is dependent upon privileged evidence to establish a claim-no more and no less for the one than the other. Each is attempting-within controlling principles of law enforced by the same sovereign invoking the privilege-to have determined in a way favorable to him his legal relations with the opposing litigant. Indeed, in much litigation (particularly with the advent of declaratory judgment) the cast of parties as claimant or defendant, and whether they are asserting “claims” or “defenses” is dependent simply upon who wins the race to the courthouse. Depending, for example, upon who wins the race, a party to a contract may find himself either asserting as plaintiff a claim for rescission of the contract for fraud or as defendant asserting the defense of fraud to a claim for breach, relying in either event on the same body of fact and law to vindicate his legal position. As has been noted in another but related context, all litigants, no matter whether cast as plaintiffs or defendants in particular litigation, are equally involuntary participants in the formal litigation process, and are accordingly entitled to equal treatment in respect of their ability to procure and present relevant evidence. Schlagenhauf v. Holder, 379 U.S. 104, 113-14, 85 S.Ct. 234, 240, 13 L.Ed.2d 152 (1964). It is for this *278reason that the majority’s concern for the apparent unfairness to a plaintiff of dismissing his action not only when his claim but also when the defendant’s defense is precluded by the privilege seems to me misplaced. On that view it would be fair enough for the contract plaintiff seeking rescission for fraud to have his action dismissed because his claim could not be proved, but unfair if, having lost the race to the courthouse, a contract breach action against him were dismissed because as defendant he could not establish the same legal/factual proposition leading to the same end result in legal relations. This, it seems to me, is not system neutrality, but its opposite. A proper neutrality would seem one that viewed a likely loss of ability by either litigant to establish an essential element of claim or defense, or fairly to rebut an essential element of either as equally unacceptable consequences of the sovereign’s invocation of this unique sovereign privilege.3
Another characteristic of this privilege that gives it a unique quality is the recognized necessity that its specific basis and its resulting scope can only be determined in a way that masks both basis and scope from the parties by in camera consideration of the claim of privilege.4 This has major consequences for the practical ability of the court and the parties thereafter to proceed under normal procedures. Neither party may know, except by implication, the exact scope of the privilege that is being enforced. The trial judge may be unable to give reasons for particular trial rulings applying the privilege and will frequently have to act sua sponte in applying it. Proffers of proof and consequent rulings may themselves violate or practically compromise the privilege. Because appellate review has similarly to be conducted in camera with respect to the basis and scope of the privilege, any resulting appellate opinion must similarly mask from the litigants, the public, and the profession significant elements of the actual rationale for decision.
None of these difficulties and artificialities taken alone may so far inhibit the litigation process as to draw in question its essential utility for resolving a dispute; but in sum, and in particular eases, I think it *279manifest that they may. It is quite conceivable to me that in a given case it might rightly be judicially determined that the undisclosable scope of privilege lies so completely athwart the scope of proof relevant to resolution of the issues presented that litigation constrained by administration of the privilege simply could not afford the essential fairness of opportunity to both parties that is a fundamental assumption of the adversary system.5 In such a case, it seems to me that the right solution is to withdraw from these litigants their normal right of access to the formal dispute resolution forum provided by the sovereign.
Finally, it seems necessary in assessing whether to allow litigation to proceed to take into account the danger of unwitting compromise of the privilege in the course of attempting to skirt its edges. We are, after all, dealing here with matter that lies peculiarly within the domain of the professional intelligence operative and outside the normal ken of the judicial officer. However dubious a judicial officer might be of the actual public danger involved in the compromise of a particular privilege, it seems to me a given of the situation that he must simply assume ultimate danger once the claim of privilege is upheld. This being so, it seems to me not paranoia but simple judiciousness to assume further that the litigation process could itself be under professional intelligence surveillance.6 In consequence, it would seem elemental that in deciding whether to allow the litigation to proceed at all the judicial officer must assume that in making specific decisions affecting the admission of evidence he will incline toward avoiding any risks of compromise of the privilege by inadvertence, and thus against the parties’ interest in the introduction of evidence lying questionably within the scope of privilege.
II
All this considered, I think that a court confronted with a claim of state secret privilege should proceed as follows. First, of course, it must decide whether the claim should be upheld. This has been done here; the claim has been upheld; and the validity of that determination is not challenged on this appeal. I agree with the majority that this threshold decision of itself decided nothing about the further conduct of the litigation.7 Until the court sua sponte or on motion of a party rules otherwise, the only effect of upholding this or any such claim is to make evidence within the scope of the privilege inadmissible when and if offered by either party.
But the court may, on motion of a party as here or sua sponte, consider as a further threshold question whether in view of the privilege’s existence, the litigation should be entirely foreclosed at the outset by dismissal of the action. This is a decision I think rightly committed in the first instance to the informed discretion of the trial judge. In making it, I think he should *280dismiss if it appears either that: (a) the plaintiff cannot establish a prima facie case because of the privilege; (b) the defendant cannot fairly present a good faith, colorable affirmative defense, or fairly rebut the plaintiff’s prima facie case, because of the privilege;8 (c) the privilege so far obstructs normal proof in respect of the issues presented by the parties as to deprive the litigation process of its essential utility for fair resolution of those issues; or (d) the danger of inadvertent compromise of the protected state secrets outweighs the public and private interests in attempting formally to resolve the dispute while honoring the privilege.
In considering these possibilities the trial court would of course have to preserve confidentiality of the privileged matter, which means that the basis for any order dismissing would necessarily be masked from the parties. Its validity as an informed exercise of discretion could then be reviewed by the appellate court, but again only with the aid of in camera consideration of the relation of the scope of privilege to the order of dismissal.
As I read the majority opinion, it would permit the district judge to consider only point (a) in deciding whether to dismiss an action because of the impact of a state secret privilege. While it would allow the judge to consider a defendant’s proffer of proof in respect of affirmative defenses or rebuttal evidence, it would confine that proffer to fully discloseable material. The consequence, as I see it, would only be to allow a defendant to obtain dismissal if on the basis of such a truncated proffer he would be entitled to summary judgment in any event. The court’s opinion would not permit a district judge in the exercise of discretion to dismiss on the basis of points (c) or (d), and as my discussion indicates, I think that judicial authority to dismiss should run to those two possibilities as well in state secret privilege cases.
Ill
In the instant case the district court, perhaps taking into account many of these very considerations, nevertheless dismissed specifically only on the basis that without the privileged evidence plaintiff could not establish its prima facie case. While I might be more disposed than the majority to affirm on the basis that dismissal on this ground alone was not an abuse of discretion,9 a preferable course to me would be to *281remand for consideration in light of the principles I have suggested here as the appropriate ones. Consequently, while I concur in the decision to remand, I would do so on the basis here elaborated, and so respectfully dissent from those portions of the court’s opinion that conflict with the views here expressed as to the reasons for and proper scope of the remand.
ON REHEARING EN BANC
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MUR-NAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting en banc.
PER CURIAM:In this action for allegedly tortious interference with reasonably expected future contract rights, the United States entered a claim of privilege for state secrets on the basis of an affidavit submitted by the Secretary of the Navy and examined by the district judge in camera. The privilege was upheld, and neither party has taken exception to that action of the district judge.
The district court ordered a dismissal of the complaint upon a finding that the plaintiff could not make out a prima facie case of tortious interference without resort to the information within the excluded state secrets.
On appeal a divided panel of this court reversed and remanded for a trial to determine whether or not the plaintiff could make out a prima facie case without resort to any of the excluded information.
The matter was reheard by the court sitting en banc after its members had examined the affidavit of the Secretary of the Navy. That affidavit has not been seen by counsel, and without some disclosure of the affidavit to counsel, the trial lawyers would remain unaware of the scope of exclusion of information determined to be state secrets. Information within the possession of the parties on the periphery of the suppression order would not readily be recognized by counsel, unaware of the specific contents of the affidavit, as being secret or as clearly having been suppressed by the general order of the district court. In an attempt to make out a prima facie case during an actual trial, the plaintiff and its lawyers would have every incentive to probe as close to the core secrets as the trial judge would permit. Such probing in open court would inevitably be revealing. It is evident that any attempt on the part of the plaintiff to establish a prima facie case would so threaten disclosure of state secrets that the overriding interest of the United States and the preservation of its state secrets precludes any further attempt to pursue this litigation.
Under those circumstances, the district court’s dismissal of the complaint is affirmed.
AFFIRMED.
. I must concede a lack of specific decisional authority for this proposition. But I suggest that this many reflect more than anything else the relative dearth of judicial opportunities to work out a detailed jurisprudence of state secret privilege. The limited experience of American courts in this respect is expressly recog*277nized in United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 531, 97 L.Ed. 727 (1953).
. State secret privilege is of course merely one of many potential causes-both legal and nonlegal-for the unavailability of evidence in particular litigation. Among the legal causes for which the legal system must assume responsibility and give justification, state secret privilege is merely one of a number of evidentiary privileges. With all such privileges it shares a characteristic that critically distinguishes them from the other great category of legal causes for unavailability of evidence, the exclusionary rules: privilege’s justification lies completely outside and at odds with concerns for true fact finding, while the exclusionary rules are designed to serve the fact finding goal. See generally McCormick’s Handbook of the Law of Evidence § 72 (E. Cleary ed. 1972). In assessing the appropriate response of the legal system to an invocation of state secret privilege it is therefore important to keep in mind that by its very nature as one of these privileges it compromises the intrinsic fairness of the adversary litigation process which has been provided for formal dispute resolution.
. This may perhaps be better seen by suggesting that the only proper vantage point for assessing “fairness” as between the parties is at a time pre-dating the invocation by either of the legal process. Once the process has been invoked so that one party has become a claimant asserting a legal grievance, considerations of relative fairness are likely to be skewed by unconscious assumptions that claimants are more likely than defendants to be actually in the right in the ordinary course. From the perspective of a litigation process already underway, it is thus possible with some apparent plausibility to describe the parties’ situation in the “heads I win, tails you lose” way suggested by the majority in depicting the plaintiff’s plight if the action can be dismissed because the defendant cannot fairly defend against the claim, p. 271. But this is unfair only if the plaintiff is the party actually in the right, a matter obviously not determinable at the time. From the more appropriate pre-litigation vantage point it is more easily recognized that the probabilities of actual right must be considered to lie equally as between all putative parties. Only in retrospect and armed with knowledge of the actual cast of right as between the parties could fairness in this respect be accurately gauged. From this latter vantage point it could of course rightly be seen that a plaintiff in the right had suffered unfairness by the dismissal of his action because of the privilege’s impact upon either his or the defendant’s case. But it could also be seen that a defendant in the right had suffered equal unfairness by the failure to dismiss an action in which he could not establish his privilege-barred defense. If any concession to a presumed greater probability of general claimant right is needed in assessing relative fairness, I suggest that it is adequately supplied by the requirement that a defendant’s privilege-barred defense must appear to be “colorable” and “in good faith” to justify dismissal under the test proposed in this opinion. See Part II infra.
. Of course the degree to which the actual scope of the privilege is masked from the parties will vary from case to case, and will depend to a considerable extent upon the way in which the privilege is invoked. It is invoked pre-trial in two basic ways: a) in response to specific discovery efforts, and b) by a general claim of privilege unrelated to expressly identified material, as in the instant case. The latter will commonly mask the scope of privilege to a greater degree than the former, and hence will present in more aggravated form the problem described in the body of this opinion.
. It is of course impossible to lay down a general standard for measuring this. In a rough and ready way, I would think the line is crossed at that point where the judge can sense that the actual dispute as defined by the issues so far differs from the dispute that could be litigated while honoring the privilege as to draw in question the fairness of attempting to apply to the restricted dispute the legal principles appropriate to resolution of the actual dispute.
. The general difficulty faced by the judiciary in ruling on state secret privilege claims is obvious. See United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). To the general difficulty may well be added in a particular case a large dose of specific skepticism about the legitimacy of the government’s classification of the material in question, and further about the true danger posed by its disclosure. It seems to me, however, that any skepticism of this sort must simply be worked out in deciding whether to uphold the claim of privilege in the first instance. Once that is done, the skepticism cannot be carried over to administration of the privilege in the litigation process. Having decided that the claim is justified, I see no way to proceed thereafter except on the basis that protection of the state secret is of utmost importance to the public interest and that in consequence all doubts about administering the privilege should be resolved on the side of non-disclosure. See also Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978).
. This, I think, is all that the authorities cited on pages 270-271 of the majority opinion stand for.
. The only way that this can be determined without compromising the privilege is by in camera consideration of a defendant’s ex parte offer of proof (preferably by affidavit) in support of a properly raised affirmative defense or in rebuttal of plaintiff’s anticipated proof. Laid alongside the scope of privilege earlier upheld by the judge, the determination whether dismissal is warranted could then be made. I read this court’s successive decisions in Heine v. Raus, 399 F.2d 785 (4th Cir. 1968), appeal after remand, 432 F.2d 1007 (4th Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1368, 28 L.Ed.2d 658 (1971), as having expressly approved just such a practice. Though conceding Heine’s possibly conflicting view, the majority considers it not authoritative on the point and specifically rejects the procedure as unacceptable on the basis that it unfairly masks from the plaintiff any knowledge of the defendant’s position, hence any opportunity to challenge it in the regular adversarial mode.
Considerations of Heine’s specific authority aside, I respectfully suggest that at this point the plaintiffs normal position in the adversarial process has already been wholly compromised by the in camera decision to uphold the claim of privilege. With the basis and scope of privilege already completely masked, the plaintiff’s position is not significantly further compromised by in camera consideration of an ex parte proffer of proof whose significance could only be effectively challenged if its relation to the scope of the privilege were known. Protection for the plaintiff in respect of this determination by the trial judge lies where it does in respect of the original in camera determination to uphold the privilege-in appellate review. While admittedly less than ideal under the circumstances, this review is no less efficacious to protect against error in the one determination than the other, and all must concede that appellate review is the only protection possible in respect of the original in camera decision to uphold the claim of privilege.
. The court’s truly imaginative effort to find in Part IV of its opinion a viable shell of plaintiff’s claim which might still be proven despite the privilege, and its even more imaginative suggestion in Part VI of truly heroic measures for trying the case in ways which would honor the privilege only serve to impress upon me the validity of the trial judge’s perception that the *281game simply was not worth the candle, all things considered. If, following the approach suggested in this opinion, the district judge were to decide that the game was worth the candle-as he might-I have no quarrel at all with the majority’s suggestions of procedures that might then be used to accommodate the conflicting interests during litigation.