concurring:
The panel decision in this case followed the court’s en banc decision in Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978). The court, again sitting en banc, now turns away from the Jordan rationale but adheres to the result reached in that case. Maj. op. at 1053, 1074-75. I find the current opinion a plausible interpretation of the language of Exemption 2, consistent with decisions in other circuits, “the overall design of FOIA, the explicit comments made in the House, the cautionary words of the Supreme Court in Rose, and even common sense.” Maj. op. at 1074. I therefore concur in the opinion, with reservations limited to the explanation the *1091court offers for preserving the Jordan judgment. The court concludes that “the result in [Jordan] would be identical under the test we announce today.” Maj. op. at 1053, 1074. The manner in which the court’s opinion spares the Jordan judgment while abandoning the Jordan rationale, in my view, clouds an otherwise clear pronouncement.
Jordan held that Exemption 2 does not shield documents whose disclosure might risk circumvention of the law. 591 F.2d at 771. It was immaterial, in the view of the Jordan district court, id. at 758,1 and this court’s majority on appeal, whether disclosure of the guidelines for prosecutorial discretion there in question “would ‘tip off’ potential violators on how to break the law and avoid prosecution.” Id. at 780. Even if release of the documents would significantly risk circumvention, the Jordan majority held, disclosure was required. Hence, as the court now points out, no fact finding on circumvention attended the Jordan disposition. Maj. op. at 1068 n.46, 1075 & n.64.
The court holds today that Exemption 2 protects documents from mandatory disclosure if a two-pronged test is met: the document is used for predominantly internal purposes, maj. op. at 1073, and disclosure significantly risks circumvention of agency regulations or statutes. Maj. op. at 1074. Therefore, to hold that “the result in Jordan — release of the documents on prosecu-torial discretion — would be the same,” maj. op. at 1075, the court must have determined that (1) the guidelines for pros-ecutorial discretion are not used for predominantly internal purposes, see maj. op. at 1073, or (2) disclosure of the prosecutorial documents would not significantly risk evasion of the law. See maj. op. at 1074.
The second of these two Jordan-sparing determinations can be quickly dispatched. This court of review did not resolve in the first instance the fact it identifies as disputed and unresolved in Jordan — whether, as the United States Attorney contended, release of the prosecutorial discretion guidelines would benefit “those who seek to circumvent the law.” 591 F.2d at 780. No factual finding was made by the Jordan district court on that point, and no such finding can be decreed by this court nunc pro tunc.
Since the court cannot say one way or the other whether disclosure of the Jordan documents significantly risked evasion of the law,2 its assurance that the Jordan result “would be the same” under the test announced today must rest on a conviction that the prosecutorial discretion guidelines were not used (should not have been used?) for predominantly internal purposes. See maj. op. at 1073, 1074. On this score, the court suggests, with scant elaboration, that the guidelines are not “predominantly internal” because they are a source of “secret law.” Maj. op. at 1075. See also id. at 1068, 1072 & n.58, 1073.
The BATF manual, the court points out, instructs agency personnel on observation, not regulation, of public behavior, while the guidelines on prosecutorial discretion instruct personnel on “how to regulate members of the public.” Maj. op. at 1075. But the prosecutorial guidelines do not regulate public behavior by distinguishing legal from illegal conduct; they do not inform law-abiding citizens how to conform their conduct to statutory or regulatory requirements. The United States Attorney in Jordan urged that public announcement of prosecution policy, far from bearing on the *1092propriety of actions of members of the public, would give “carte blanche” to and encourage “certain criminal activity.” 591 F.2d at 780. Specifically, the Department of Justice stressed in Jordan:
Public disclosure of these materials would alert members of the public to those situations, persons, and offenses for which prosecution is withheld, selectively applied, or disposed of by pre-trial diversion. Individuals could then successfully exploit these policies by committing crimes within these select categories, thereby escaping prosecution. For example, publication of a policy of non-prosecution (or prosecution at a lesser degree of seriousness) for possession of certain quantities of specific narcotic drugs would serve only to encourage dealers and users of narcotics to carry lesser quantities of the drug than those specified in our guidelines .... [A]n offender could avoid full prosecution merely by stealing property valued at less than our de minimus [sic] standards.
Id. at 758. I find unavoidable the conclusion that the guidelines for prosecution are like the BATF Manual to this extent: both instruct agency personnel how to do their job; neither instructs the public on the propriety of contemplated activity.
It may be that the result in Jordan should be the same and that an opinion could be written explaining why. I believe the court hints at, but has not written, such an opinion. Jordan and this ease cannot be distinguished on the ground that Jordan involved no significant risk of law circumvention, or on the ground that the prosecutorial guidelines, unlike the BATF Manual, are public conduct-regulating rules not designed for predominantly internal use. To the extent that the court' points to these factors as separating Jordan from Crooker, the opinion muddles where it should illuminate. The court does say Jordan involved, as this case does not, “secret law” of an agency. Maj. op. at 1075.3 Had the opinion focused on that point, and offered more by way of elaboration,4 the district court, which must decide whether future cases are governed by the Crooker reasoning or by the Jordan result, might have had a more secure guide.
OUTLINE
Page
I. Analysis of Exemption 2--------------------------1094
A. The Language of Exemption 2-------------------1094
B. The House and Senate Reports___________________ 1096
1. The conflict between the two reports.......... 1096
2. The background on passage of the FOIA________ 1098
3. The significance of the House and Senate hearings 1100
C. Section (a) (2) (C) of the FOIA___________________ 1105
D. The Overall Purpose of the FOIA----------------1106
*1093II. Significance of Later Congressional Acts ------------------ 1107
A. The Government in the Sunshine Act_______________________ 1107
B. Section (b) (7) (E) of the FOIA............................ 1109
III. Case Law on Exemption 2___________________________________ 1111
A. Department of Air Force v. Rose__________________________ 1111
B. D.C. Circuit Case Law___________________________________ 1111
C. Case Law in Other Circuits_______________________________ 1112
IV. The Majority’s New Test................................... 1114
V. The Majority’s Attempt to Distinguish the Result in Jordan_____ 1117
VI. Conclusion________________________________________1118
. The information-seeking plaintiff in Jordan prevailed on a motion for summary judgment. Although presented with the United States Attorney’s affidavit attesting to “the pernicious consequences” of disclosure, 591 F.2d at 758, the district court held that the records were required to be disclosed pursuant to § 552(a)(2)(C) and were not exempt under § 552(b)(2). Jordan v. United States Dep’t of Justice, No. 76-0276 (D.D.C. Jan. 18, 1977).
. In commenting on whether disclosure of prosecutorial guidelines would help individuals evade the law, the court points out, maj. op. at 1075, that federal prosecutors who resign and go into private practice as defense attorneys retain knowledge of the guidelines. But former federal prosecutors may also retain knowledge of other law enforcement manuals, perhaps even the BATF Manual involved in this case.
. Cf. 591 F.2d at 774, 775 (guidelines “express the settled and established policy of the U.S. Attorney’s Office,” they “were promulgated as general standards to guide the Government lawyers in determining whether or not to bring an individual to trial in the first place”); id. at 782 (Bazelon, C.J., concurring) (public and courts should “be informed of the general criteria which prosecutors apply in selecting which cases to prosecute and what charges to bring”).
. Judge Mikva, in his concurring statement, presents a brief exposition of the theme that might be developed. He asserts that Jordan involved “secret substantive and procedural law,” and comments that release of the information sought in Jordan would serve “fundamental public interests” and help “police those who police others.” Judge MacKinnon’s concurring opinion also refers to the “secret law” concern in Jordan. However, the concurring remarks do not offer clear guidance on distinguishing “secret law” subject to disclosure from “law enforcement matter” that may be withheld.