concurring.
While there seems to be little dispute that the district court’s function in an enforcement proceeding such as the present-one is narrowly limited, and while, in my opinion, the district court in its hearing may well have been approaching the outer limits of matters which should properly have been considered, nevertheless, the careful analysis and close reasoning of the opinion of this court persuades me to concur in the result reached, and with the exceptions noted hereinafter, to concur in the court’s opinion. In concurring, I particularly note that this court’s opinion holds on the basis of “the present facts” that disclosure should not be forced.
Specifically, I do not join in that part of the opinion designated as II. E. 2., Academic Freedom. This basis for affirmance of the district court’s order was interjected into this case by the brief of Amicus Curiae, The State of Wisconsin. The argument portion of the Amicus brief is approximately four pages in length, all of which are double spaced typing with the exception of a one-half page quotation from Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). The opinion of this court does not cite or quote from that case. This court’s opinion does correctly note that this issue was not discussed by the district court in its opinion. I am unaware from that opinion that the issue was even presented to the district court. Only the scantiest attention was given to the point in either the briefs or oral argument in this court.
*1279This court’s opinion, it seems to me, presents, without any inclusion of a discussion of the issue of academic freedom, more than an adequate basis for affirmance on “the present facts” of the case. I do not intend in any way to belittle the importance of academic freedom in the society of this nation. I am also mindful, however, that this was not an independent investigation engaged in by faculty researchers and financed by the University. The research is being conducted pursuant to a grant application to the Department of Health, Education, and Welfare. The fact that it is being financed by government money, I assume, would not mean that the ongoing study was automatically subject to public disclosure at each step and stage thereof. Nevertheless, it is quite reasonable to assume that the undertaking of the study was directly limited to whether or not the product being researched should continue in the public marketplace. The chemical involved and its possible deleterious effects on general health, and particularly on reproductive efficiency, had received widespread public attention following the Viet Nam War. The grant application for the initial stage of the study had a proposed beginning date of July 1, 1977. The cancellation hearing notice, which ultimately resulted in the subpoenas under review, was issued on February 1979. It seems clear to me that before this court purports to pass on the academic freedom issue, particularly when no real need exists for its consideration, it should be supported by a more complete factual record and a more complete disclosure and discussion by the parties involved than it now has.
I am also concerned about one other matter and that is that ultimately either Dr. Allen or Mr. Van Miller may testify in the cancellation hearing with regard to the 5 ppt and 25 ppt studies. At the time of the district court’s decision the court observed that Dr. Allen was apparently not planning to be a witness at the hearing and even if he had been he did not intend to discuss the 5 ppt and 25 ppt studies, 494 F.Supp. 113. The opinion of this court however has as one of its principal foundations the fact that neither of the above individuals would be testifying and certainly would not be testifying on the 5 ppt and 25 ppt data.1
This court’s opinion recognizes that if Dr. Allen, Mr. Van Miller, or other researchers were likely to testify about the 5 and 25 studies at the cancellation hearing there might well be justification for granting partial or conditional enforcement of the subpoenas. I particularly concur in this observation as I find one of the most forceful reasons for affirming the district court to lie in the fact that it is not contemplated that these particular studies would be the subject of testimony at the cancellation hearing. If it should develop that the contrary is true, I am of the opinion that it would be appropriate to give favorable consideration to a reexamination and judicial assessment of the subpoenas.
The respondents are concerned, which concern is also expressed in the opinion of this court, that periodic disclosure of the data could severely jeopardize the careers and reputations of the researchers. I do not share in this concern as at the time the subpoenas were issued, as I understand it, just seeking laboratory data. I can see that researchers might draw early conclusions from data which was not substantiated by further empirical laboratory studies. The public exposure to the early conclusions of the researchers might well cast some doubt on their ability to analyze laboratory data. What is involved here, however, seems to me to be merely a matter of recording accurately. A researcher’s reputation perhaps deserves to be subject to some questioning if he or she cannot accurately observe and record specific factual matters.
*1280It could well be that as the cancellation hearing develops the direction of the testimony might indicate the necessity of bringing in the studies on the 5 and 25, assuming that eventually those studies are completed. In this event, it appears to me that Dow Chemical would be fully justified in having all documents including conclusions pertaining to the study made available to them and that the hearing be continued for a reasonable time to permit Dow to examine and analyze those studies.
. Indeed, the respondents made out an arguable case that they did not have possession or exercise control over the documents in question which raises some doubt as to whether this in itself might not have been dispositive of the case. I recognize that the issue, of course, could be resuscitated if the subpoenas were redirected to those having possession or control.