dissenting:
The majority opinion characterizes this case largely as a political dispute between competing governments, designed to challenge the legitimacy of Marcos’ reign. Majority op. at 1475,1479,1479-80. This characterization distorts the proper focus of our analysis. In my view, this appeal concerns the attempt by the Republic of the Philippines to secure a preliminary injunction to prevent Ferdinand and Imelda Marcos, and their alleged agents, from transferring, conveying, or encumbering specific properties in California, and other as yet unidentified properties, allegedly purchased with funds stolen from the Republic of the Philippines, pending a final determination of ownership of the properties. The district court concluded that it had subject matter jurisdiction under RICO. Under the pendent claims for conversion, fraud, and deceit, which sought money damages, an accounting, and return of property under a constructive trust,1 the court issued a preliminary injunction to preserve the status quo pending a determination on the merits. Because I believe that the act of state doctrine does not compel reversal, and that the district court clearly did not abuse its discretion in issuing the preliminary injunction, I respectfully but strenuously dissent from the majority's result and all except part I of the majority opinion, which upholds the finding of subject matter jurisdiction under the federal claims.2
I. THE ACT OF STATE DOCTRINE
The majority would reverse the decision to issue the preliminary injunction because it believes that the act of state doctrine renders the Philippines’ likelihood of success on the merits low. I believe that the majority’s analysis of the act of state doctrine is incorrect in substantial part as a matter of law and wholly unsupported by the facts and procedural posture of this case. Below I set forth the principal points on which I disagree with the majority’s analysis.
A. The Scope of the Doctrine: Official and Unofficial Acts
Under the act of state doctrine, the courts of this country will not inquire into the legality of official acts of sovereign nations done within their own territories. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 691 n. 7, 96 S.Ct. 1854, 1859 n. 7, 48 L.Ed.2d 301 (1976); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 92 S.Ct. 1808, 1811, 32 L.Ed.2d 466 (1972); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416, 84 S.Ct. 923, 934, 11 L.Ed.2d 804 (1964). The doctrine applies to “the public and governmental acts of sovereign states,” but not to “their private and commercial acts.” Dunhill, 425 U.S. at 695, 96 S.Ct. at 1862; see also Republic of the Philippines v. Marcos, 806 F.2d 344, 358 (2d Cir.1986) (holding that, for the act of state doctrine to apply, “the acts must be public acts of the sovereign”); Restatement (Revised) of Foreign Relations Law § 469, at 51 (Tent.Draft No. 7, 1986) (stating that the doctrine applies only to sover*1493eign “acts of a governmental character”). Although the doctrine also applies to the official acts of government officials vested with sovereign authority, see Bernstein v. Van Heyghen Freres, S.A., 163 F.2d 246, 249 (2d Cir.), cert. denied, 332 U.S. 772, 68 S.Ct. 88, 92 L.Ed. 357 (1947); Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir.1940), it does not apply to private, unofficial conduct of government officials, including heads of state. Marcos, 806 F.2d at 359; see DeRoburt v. Gannett Co., 733 F.2d 701, 704 (9th Cir.1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 909, 83 L.Ed.2d 923 (1985). Therefore, to the extent that Ferdinand Marcos, Imelda Marcos, and their agents have engaged in unofficial acts, the act of state doctrine has no application.
The majority’s analysis blurs the distinction between the official or unofficial character of the defendants’ acts. It first concedes, almost in passing, that “[a] few of Marcos’ alleged misdeeds ... may amount to nothing more than common fraud or theft.” Majority op. at 1479; see also id. at 1485. Yet the majority’s analysis then broadly assumes that Marcos is a “dictator” who “can do whatever he can get away with,” id.' at 1478, 1483 n. 9, 1489, and that the challenged acts of the defendants reflect “complex political and policy choices,” even if undertaken in part “to serve otherwise improper ends,” id. at 1485. In short, the majority all but ignores the private, unofficial character of the challenged acts and appears to embrace the sweeping position that the acts of a dictator are necessarily official and insulated from judicial review.3
The majority characterizes the Philippines’ complaint as challenging, inter alia, Marcos’ governmental acts of “expropriation of private property; creating public monopolies; ‘granting] government favors, contracts, licenses, loans, and other public benefits.’ ” Majority op. at 1478 (quoting Fernando declaration II8). In fact, however, the Fernando declaration clearly distinguishes between official governmental acts and private, unofficial acts. The full passage quoted in part by the majority states:
The said taking of Government properties was effected by a range of techniques, including but not limited to accepting payments, bribes, kickbacks, interests in business ventures, and other things of value in exchange for the grant of government favors, contracts, licenses, franchises, loans, and other public benefits; expropriating outright private property for the benefit of persons beholden to or fronting for Mr. Marcos, the said expropriation at times effected by violence or the threat of violence or incarceration; arranging loans by the Philippine Government to private parties beholden to and fronting for Mr. Marcos; direct raiding of the public treasury; diverting loans, credits and advances from other governments intended for use by the Philippine Government; creating public monopolies placed in the hands of persons beholden to and fronting for Mr. Marcos.
Fernando declaration U 8 (emphasis added). That a government official may obtain kickbacks, bribes, and interests from the commission of otherwise governmental acts — such as granting a public monopoly or governmental contract — does not convert the acquisition of those kickbacks, bribes, and interests into official, public acts. The majority evidently believes that whatever acts are associated with an ostensibly governmental function are thereby rendered official. I cannot adhere to the position that the alleged acts of receiving bribes, plundering the treasury, and extortion are the result of “complex political and policy choices.” Majority op. at 1485. Even a dictator is capable of performing private, unofficial acts. ■ ,,
In Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir.1962), the Fifth Circuit drew a clear distinction between the official acts and private conduct of a former head of state who was characterized as a dictator. The Republic of Venezuela alleged that Marcos Perez Jimenez, the former president of Venezuela, had committed “financial crimes for his own private personal gain” during the period he served as president. Id. at 552. The financial crimes included receiving kickbacks and commis*1494sions on government contracts, misappropriating and diverting government payments on construction contracts and land purchases, and securing improvements to his private estate at public expense. Id. Jimenez contended that the acts alleged were “ ‘acts done in the exercise of or in color of his sovereign authority’ ” and, as such, could not be examined by the courts of this country “ ‘inasmuch as the judicial authorities cannot review the acts done by a sovereign in his own territory to determine illegality.’ ” Id. at 557. Jimenez argued “that as a ‘dictator’ he himself would be the sovereign — the government of Venezuela — and that all his acts constituting the financial crimes with which he is charged ... are acts of state or sovereign acts, the legality of which the Act of State Doctrine precludes [courts from adjudicating].” Id. The Fifth Circuit disagreed:
Even though characterized as a dictator, appellant was not himself the sovereign — government—of Venezuela within the Act of State Doctrine. He was chief executive, a public officer, of the sovereign nation of Venezuela. It is only when officials having sovereign authority act in an official capacity that the Act of State Doctrine applies.
Appellant’s acts constituting the financial crimes of embezzlement or malversation, fraud or breach of trust, and receiving money or valuable securities knowing them to have been unlawfully obtained ... were not acts of Venezuela sovereignty____ [EJach of these acts was “for the private financial benefit” of the appellant. They constituted common crimes committed by the Chief of State done in violation of his position and not in pursuance of it. They are as far from being acts of state as rape.
Id. at 557-58 (citations omitted) (emphasis added);4 see also DeRoburt, 733 F.2d at 704 (distinguishing between the official sovereign acts of the Republic of Nauru, to which the act of state doctrine may apply, and the private, unofficial conduct of its current president, to which the doctrine does not apply).
The Second Circuit also made this distinction clear in its analysis of the applicability of the act of state doctrine to the financial crimes alleged to have been committed by Ferdinand Marcos. Marcos, 806 F.2d at 358-59. As in Jimenez, Marcos was characterized as a “dictator ... with personal control over [the] government and economy.” Id. at 348. The Second Circuit held:
Appellants simply fail to make the crucial distinction between acts of Marcos as head of state, which may be protected from judicial scrutiny even if illegal under Philippine law, and his purely private acts. Although the distinction between public and private acts of a foreign official may be difficult to determine, our courts have repeatedly done so.
Id. at 359 (citations omitted).
Therefore, to the extent that the majority holds that the act of state doctrine necessarily bars inquiry into Marcos’ acts because of his status as a “dictator,” I cannot agree. The doctrine applies only to his official acts.5 As a descriptive matter, Marcos and his agents no doubt exercised broad power, especially after the imposition of martial law in 1972. But the appropriate inquiry is not to invoke the talismanic label “dictator.” The district court should determine which of the challenged acts were official and which were not. Only by doing so can the court determine the extent to which the act of state doctrine may *1495apply. The majority’s analysis sweeps them all together.
B. The Burden of Asserting the Act of State Doctrine
The majority also fails to take heed of the well-established rule that the burden of establishing that particular conduct constitutes an “act of state” subject to the act of state doctrine is on the party invoking the defense. See Dunhill, 425 U.S. at 695, 96 S.Ct. at 1861; Marcos, 806 F.2d at 359. In granting the preliminary injunction against Marcos in the Second Circuit case, District Judge Leval held:
[Tjhe applicability of the doctrine is not demonstrated on the present record. Defendants have made no showing that the acts alleged against Ferdinand Marcos, much less Imelda Marcos, would necessarily be protected from United States court adjudication.
New York Land Co. v. Republic of the Philippines, 634 F.Supp. 279, 289 (S.D.N. Y.), aff'd, Republic of the Philippines v. Marcos, 806 F.2d 344 (2d Cir.1986). The Second Circuit agreed. “Since the burden of proof is on the party invoking the act of state defense, appellants must ultimately demonstrate that the challenged acts of Marcos were in fact public acts (the allegations of the complaint covering both public and private acts).” Marcos, 806 F.2d at 359-60 (citations omitted). The Second Circuit concluded:
In short, the district court will necessarily scrutinize the acts that The Republic challenges. Defendants must present evidence that these acts were public (e.g., that Marcos’s wealth was obtained through official expropriation decrees or public monopolies). The court then must decide whether to examine these public acts in light of the considerations discussed above. If it chooses not to do so — and the determination whether the Marcoses obtained their wealth illegally ... is impossible without such scrutiny— the court should consider deferring to a Philippine adjudication that comports with due process. But in any event, at this stage we agree with the position of the United States ... that the defendants have not discharged their burden of proving an act of state. Only after that burden is met do other relevant factors need to be considered.
Id. at 359.
In this case, Marcos and his co-defendants have not pointed to even a single official sovereign act by which Marcos has acquired any portion of the funds used to purchase the real property and invest in the accounts at issue here. Instead, Marcos merely asserts that all of his conduct during the past twenty years, private and sovereign alike, is subject to the act of state doctrine. The majority’s assertion that Marcos is a “dictator” whose acts are insulated from judicial scrutiny eviscerates the defendants’ burden of establishing the applicability of the defense to particular acts. Indeed, most of the majority’s analysis proceeds on the theory that the plaintiff must show that the doctrine does not apply. Majority op. at 1482-88. At this stage of the proceedings, Marcos and his co-defendants have not met their burden of establishing that the challenged acts were official acts to which the act of state doctrine may apply.
C. The Assertion of Embarrassment to the United States Executive Branch
The act of state doctrine was “judicially created to effectuate general notions of comity among nations and among the respective branches of the Federal Government.” First Nat’l City Bank, 406 U.S. at 762, 92 S.Ct. at 1811. “[T]he doctrine was not compelled by the nature'of sovereignty, by international law, or by the text of the Constitution. ‘Rather, it derives from the judiciary’s concern for its possible interference with the conduct of foreign affairs by the political branches of the government.’ ” DeRoburt, 733 F.2d at 703 (quoting Timberlane Lumber Co. v. Bank, of America, 549 F.2d 597, 605 (9th Cir.1976)) (citations omitted); see also Sabbatino, 376 U.S. at 421-23, 84 S.Ct. at 936-38.
Particularly disturbing in the majority’s analysis are the bare assertions that invo*1496cation of the act of state doctrine is necessary to prevent embarrassment to the executive branch of the United States by this litigation. Majority op. at 1482, 1486 n. 14, 1486. The majority states that
“[o]ur decision will be relatively innocuous only if it is in favor of the plaintiff, if our government’s attitudes toward the Philippines is unchanged and if the current Philippine government is still in power.” Id. at 1482. It asserts that to permit this action to proceed in a United States court may embarrass the United States because the “pendulum” of power between President Aquino and Mr. Marcos or “some third force” may “swing again.” Id. at 1486.
Putting aside the likelihood of these political predictions actually coming to pass, it is not clear why the majority believes that such potential embarrassment would outweigh the certain, immediate embarrassment in our relations with the current Philippine government if our courts were to shut the door to the Philippines’ request for adjudication of the claims. “[T]he act of state doctrine reflects respect for foreign states, so that when a state comes into our courts and asks that our courts scrutinize its actions, the justification for application of the doctrine may well be significantly weaker.”6 Marcos, 806 F.2d at 359. “The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence ... for the political interest of this country may, as a result, be measurably altered.” Sabbatino, 376 U.S. at 428, 84 S.Ct. at 940. In such a case, “the danger of interference with the Executive’s conduct of foreign policy is surely much less than the typical case where the act of state is that of the current foreign government.” Marcos, 806 F.2d at 359. If at some future time a new political upheaval should bring Marcos back to power, the district court could then reassess the balance of considerations determining the applicability of the act of state doctrine.
Regardless of the merits of the majority’s speculation as to the foreign policy consequences of any action or inaction by our courts, I believe that such speculation is entirely inappropriate in this case. The majority opinion ignores the fact that the executive branch has clearly spoken on the question of potential embarrassment to the United States in similar cases. Our executive branch has urged the courts of this country to honor the Philippines’ requests for adjudication here and has argued on the Philippines’ behalf against the applicability of Marcos’ defenses to suit in our courts. Marcos, 806 F.2d at 356-57. In a declaration by Michael H. Armacost, Undersecretary of State for Political Affairs, made on March 15, 1986, in a Marcos case pending in the United States Court of International Trade,
Undersecretary Armacost pointed out that the United States’ relations with the Philippines are extremely important and that it is the policy of the United States to strengthen and broaden those relations, especially in light of the two countries’ shared basic values such as a commitment to democratic government and respect for human rights. The Armacost declaration also points out that the United States has two of its largest overseas military facilities located in the Philippines, facilities of critical importance to the security of both nations, that the two countries have numerous defense agreements, and that the United States has *1497provided the Philippines with over $250 million in military assistance in the past five years and permits Philippine nationals to enlist in the United States Navy.
The statement also emphasizes the important United States-Philippine economic relationship involving in 1985 alone over $3.7 billion worth of bilateral trade, a direct United States investment in the Philippines of over $1.2 billion, and United States monetary aid to the Philippines totaling $226 million. The statement also notes United States-Philippine cooperation in numerous areas including agriculture, education, nuclear energy, and science, and mentions that the United States government recognized the new Philippine government headed by Corazón Aquino and “welcomed its commitment to fulfill the democratic aspirations of the Filipino people.” The declaration refers to the establishment of the official Presidential Commission on Good Government headed by former Philippine Senator Jovito Salonga and to the United States’ agreement to receive Senator Salonga at a diplomatic level. Undersecretary Armacost asserted that the Aquino government will view the United States’ actions on this matter as an important indicator of the future course of our bilateral relations and stated that it is in the foreign policy interests of the United States to honor the Philippine government’s requests at the earliest possible time.
Id. at 357 n. 3 (emphasis added). The Second Circuit also noted that a letter from the United States Department of Justice, with the concurrence of the Office of the Legal Advisor to the Department of State, argued that Marcos and his co-defendants had not discharged their burden of proving acts of state. Id. at 356-57.
Thus, the Second Circuit concluded that “[t]he United States has made it clear that it does not fear embarrassment if the courts of this country were to take jurisdiction of this and other disputes between The Republic and ex-President Marcos.” Id. at 356 (emphasis added). The majority’s assertion that adjudication of the Philippines’ claims in a United States court would cause embarrassment to our executive branch is therefore unfounded.7 Given such guidance, it is not the judiciary’s role to appraise the wisdom of the executive branch’s foreign policy.
Although the position of our own executive branch is not dispositive of the act of state inquiry, see id. at 358, the executive’s appraisal of the disruptive effect that denying the Philippines access to our courts would have on the conduct of sensitive foreign policy is entitled to considerable deference. See First Nat’l City Bank, 406 U.S. at 768, 92 S.Ct. at 1813 (holding that the United States courts should defer to the executive “where the Executive Branch, charged as it is with primary responsibility for the conduct of foreign affairs, expressly represents to the Court that application of the act of state doctrine would not advance the interests of American foreign policy”); id. at 776, 92 S.Ct. at 1817 (Powell, J. concurring) (stating that “[w]hen it is shown that a conflict in those roles [of the judicial and political branches] exists, ... the judiciary should defer”); id. at 790, 92 S.Ct. at 1824 (Brennan, J., concurring) (stating that “the representations of the Department of State are entitled to weight for the light they shed on the permutation and combination of factors underlying the act of state doctrine”); Jimenez, 311 F.2d at 558 (stating, with respect to the separation of powers concern underlying the act of state doctrine, that the judiciary *1498customarily defers to the executive branch, “the branch of government charged with international relations”).8 Given the executive branch’s guidance on whether our courts should entertain the Philippines’ claims, the majority’s assertions to the contrary — though suspect on their own terms — are inappropriate and unfounded.
D. The Relationship of the Act of State Doctrine to the Probability of Success on the Merits
The majority reasons that, because the act of state doctrine bars inquiry into all or most of the challenged acts, the Philippines’ “net worth” theory will collapse, thus rendering the plaintiff’s probability of success on the merits low. Majority op. at 1480-81. I cannot agree with this argument’s predicate or its ultimate conclusion.
As discussed above, the majority’s analysis casts the scope of the act of state doctrine far too broadly, ignores the defendants’ burden of proving its applicability, and disregards the guidance of our executive branch. The majority prematurely assumes that only “[a] few” of Marcos’ acts will prove to be private, unofficial acts, while “the vast majority” will prove to be public, official acts. Majority op. at 1479,1482. This guess as to the proportion of official and unofficial acts ignores not only Marcos’ burden of proving which acts are in fact official, but also the incomplete record before the district court when it ruled on the preliminary injunction. But even assuming (1) that Marcos could later establish that some challenged acts were official and (2) that the district court would determine, after “balanc[ing the] relevant considerations./’9 see Sabbatino, 376 U.S. at 428, 84 S.Ct. at 940, that the act of state doctrine bars claims based on those official acts, I cannot conclude that the Philippines will be unable to recover on the basis of private, unofficial acts that the doctrine does not reach. The majority simply asks too much of the Philippines’ “net worth” theory, especially in view of the procedural posture of this case. It treats the “net worth” theory almost as a cause of action that must be followed through to completion at trial. See Majority op. at 1479-81. However, it is merely the evidence of wrongdoing that the Philippines has compiled at this preliminary stage.
The Philippines filed this action on June 16, 1986. The complaint alleged pendent claims for conversion, fraud, and deceit. It charged that the Marcoses reported $337,-429 of income during the twenty-year period during which Marcos was in office, while holding investments of $1.55 billion. In support of its preliminary injunction motion, the Philippines produced evidence corroborating this discrepancy and documentation of the “paper trail” linking the Marcos-es to specific properties and bank accounts through aliases and shell corporations. See infra pp. 1500-01. On the basis of this evidence, on June 25, 1986 — before the parties had conducted discovery — the district court granted the preliminary injunction.
At this stage of the litigation, the Philippines set forth its “net worth” theory as evidence in support of its request for a preliminary injunction. The evidence of a discrepancy on the order of $1.55 billion, coupled with specific documentation of the paper trail, is highly probative of wrongdoing. But we have no reason to conclude, *1499much less require, that the Philippines must proceed on, a “net worth” theory at trial, after discovery has taken place. Therefore, even if the act of state doctrine might bar inquiry into some official acts, thus weakening a “net worth” evidentiary theory, I cannot conclude that the Philippines’ substantive claims must fail at trial.
E. Conclusion
We cannot ignore the substantial allegations of private, unofficial acts of common theft, misappropriation, fraud, and concealment merely because Marcos was serving as the Philippines’ president when he allegedly committed these crimes. Just because Marcos was in a position to commit these acts when he was president does not render these acts “official.” The majority concedes that “if [Marcos] entered the public treasury at gunpoint and walked out with money or property belonging to the Philippines, he would not be protected by the act of state doctrine.” Majority op. at 1484. This, I believe, expresses the essence of the Philippines’ complaint — whether the Marcoses raided the public treasury “at gunpoint,” by extortion, or by theft.
The Second Circuit addressed a similar factual situation and the identical issue we face here — whether the act of state doctrine renders the Philippines’ probability of success on the merits low — in a well-reasoned unanimous opinion affirming the issuance of a preliminary injunction against Marcos. Republic of the Philippines v. Marcos, 806 F.2d 344 (2d Cir.1986). The Second Circuit rejected Marcos’ argument that the act of state doctrine precludes inquiry by the courts of this country into his alleged misdeeds. The court held that Marcos had failed to sustain his burden of demonstrating that the acts of theft, misappropriation, fraud, and concealment alleged by the Philippines were all official sovereign acts, to which the act of state doctrine may apply, rather than private acts, to which the doctrine does not apply. Id. at 348-49, 359. The court observed that our executive branch had expressly supported the Philippines’ suits against Marcos in this country. Id. at 356-57 & n. 3. The court concluded that Marcos had not demonstrated that the act of state doctrine was likely to apply reducing the Philippines’ likelihood of success on the merits to less than a substantial probability. The court also stated that, although the Philippines had requested only a preliminary injunction and recognition of an eventual Philippine decree in that case, see id. at 361, there was “no bar to the grant of a preliminary injunction and the district court may either itself determine ownership or defer to Philippine proceedings,” id. at 356 (emphasis added).10 The reasoning of the Second Circuit is persuasive. I believe that the district court correctly concluded that, at least at this stage of the proceedings, the act of state doctrine does not have a negative impact on the calculus of the Philippines’ likelihood of success on the merits.11
*1500II. THE ISSUANCE OF THE PRELIMINARY INJUNCTION
The majority does not discuss the district court’s assessment of the probability of success on the merits of the pendent claims on which the preliminary injunction was based, because of its reliance on the act of state doctrine. Since I believe that the act of state doctrine does not bar the preliminary injunction, I wish to emphasize that the district court’s application of the preliminary injunction test was correct.
In order to obtain a preliminary injunction, the Philippines may “demonstrate the probability of success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in its favor.” Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.1987). We review the district court’s determination with respect to probability of success for abuse of discretion. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). At the preliminary injunction stage, “[t]he district court is not required to make any binding findings of fact; it need only find probabilities that the necessary facts can be proved.” Id. at 1423. The district court may “reasonably assume that more evidence in the same vein” as that offered in support of the preliminary injunction “could be produced at trial.” Id.
The majority suggests, but does not decide, that the probability of success should be determined by looking at both the federal RICO claims, on which subject matter jurisdiction is predicated, and the pendent claims, under ' which the injunction was issued. Majority op. at 1480; see also id. at 1479. I believe that the probability of success on the merits should be determined solely by reference to the pendent claims when, as here, the federal claims cannot support injunctive relief. See USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982) (analyzing only the pendent state claims when RICO established subject matter jurisdiction).
This approach fully supports the policies underlying pendent jurisdiction — “the conservation of judicial energy and the avoidance of multiplicity of litigation,” Rosado v. Wyman, 397 U.S. 397, 405, 90 S.Ct. 1207, 1214, 25 L.Ed.2d 442 (1970) — that would be defeated if plaintiffs were encouraged to bring parallel actions in federal and state courts in order to obtain a preliminary injunction under the pendent claims. This approach also renders unnecessary any speculation by the district court or the court of appeals as to whether the district court would, in the exercise of its discretion, retain or dismiss the pendént claims in the event the federal claims are dismissed on a Rule 12(b)(6) motion or summary judgment at some later date. See In re Nu-corp Energy Sec. Litig., 772 F.2d 1486, 1490-91 (9th Cir.1985) (retaining pendent claims after a Rule 12(b)(6) dismissal of federal claims for reasons of judicial economy, convenience, and fairness to the parties); Arizona v. Cook Paint & Varnish Co., 541 F.2d 226, 227 (9th Cir.1976) (per curiam), cert. denied, 430 U.S. 915, 97 S.Ct. 1327, 51 L.Ed.2d 593 (1977). In the event that early dismissal of the RICO claims should occur in this case, a preliminary injunction issued solely on the basis of the pendent claims would have preserved the status quo with respect to those ■ claims, whether the district court retains jurisdiction over them or decides that they should be pursued in another forum. It would be ironic indeed if the district court were to deny a preliminary injunction in part on the basis of an assessment of the federal claims, later dismiss those claims but retain jurisdiction over the pendent claims, and then realize that a preliminary injunction should be issued under the retained pendent claims. Therefore, I believe that the proper inquiry is to determine the likelihood of success of the pendent claims alone.
In this case, the Philippines offered a verified complaint, supporting affidavits, and evidence, including the Marcoses’ income tax documents, Swiss and California bank documents showing the establishment of accounts under aliases and the subsequent investment by Ferdinand and Imelda Marcos of substantial amounts of funds originating in the Philippines, and deed and trust documents reflecting a complicated series of investments by Marcos in real property in this judicial circuit. Marcos *1501and his co-defendants failed to offer any affidavits or evidence to contradict the affidavits and evidence offered on behalf of the Philippines. The district court properly could presume that the Philippines’ evidence and affidavits were true. See 11 C. Wright & A. Miller, Federal Practice & Procedure § 2949, at 474-75 (1973).
The materials before the district court provided a reasonable basis for it to conclude that the Philippines would be able to establish at trial, after discovery had fully taken place, the necessary facts to show that the Philippines had indeed been the victim of theft, misappropriation, fraud, and concealment at the hands of the defendants. The Philippines produced documentation of the Marcoses’ past income tax returns and an affidavit of Benigno Alas, formerly a licensed CPA in the Philippines, which analyzed those documents. The analysis strongly indicates that at least some, and probably a large part, of the Marcoses’ current assets were wrongfully acquired. Mr. Alas concluded that the discrepancy between the Marcoses’ aggregate income of $337,429 during the twenty-year period Marcos was in office and their alleged current assets of $1.55 billion would be “extremely difficult, if not impossible, to explain from lawful sources.”
The verified complaint and an affidavit of Rafael Fernando, West Coast Representative and Coordinator of the Philippines’ Presidential Commission on Good Government, charge that the Marcoses acquired much of these assets through conversion, fraud, deceit, use of undue influence, and conspiracy. .Although some of these allegations may be based on hearsay and thus be inadmissible at trial, in view of the exigent circumstances attending application for a preliminary injunction, the district court could properly consider them. See Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984); 11 C. Wright & A. Miller, supra, § 2949, at 471-72. In addition, the Philippine government, in creating the Commission on Good Government, stated that it was in possession of evidence showing that the Marcos-es’ assets were wrongfully acquired through “improper or illegal use of funds or properties owned by the Government of the Philippines ... or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines.” Executive Order No. 2, at 1; see also Executive Order No. 1, sec. 2(a).
Finally, the Philippines produced uncontroverted evidence indicating that the Marcoses have established Swiss bank accounts under aliases and that funds were transferred to these banks through California banks. It produced evidence of Marcos’ transfer of substantial funds from the Philippines into two accounts in Lloyds Bank in California, and documentation concerning the ownership and transfers of interests in the Beverly Hills property. The district court properly could assume that more evidence of the paper trail “in the same vein” would be revealed once discovery had taken place. See Sierra On-Line, 739 F.2d at 1423. The uncontroverted evidence of property and funds acquired by the Marcoses, coupled with the evidence discussed above, supports a reasonable conclusion by the district court that the Philippines had a “substantial likelihood” of prevailing on the constructive trust claims for the identified property and on the accounting claim to determine what other, as yet unidentified, property is held by the Marcoses that should also be subject to a constructive trust. Thus, I believe that the district court clearly did not abuse its discretion in finding a substantial likelihood of success on the pendent claims.
The district court also found that the Philippines would suffer, irreparable injury without the issuance of a preliminary injunction. The district court found a “substantial danger” that, if a preliminary injunction were not granted, the defendants would transfer or conceal property, funds, books, and records beyond the court’s process, thereby vitiating possible relief in the return of specific property under the constructive trust claim and in the examination of books and records under the accounting claim. Based on the evidence of complex transfers and concealment before the district court, the court’s factual finding of “substantial danger” was not clearly erro*1502neous. Neither was the court’s conclusion that the harm to the Philippines resulting from such transfer and concealment would be irreparable. Transfer and concealment of the books and records would prevent the court from being able to provide meaningful relief on the accounting claim; the harm would therefore be irreparable. Moreover, because the Philippines seeks the return of both specific, identified property in California and as yet unidentified property under its quiet title claim, the harm from such transfer and concealment would also be irreparable. Thus, I firmly believe that the district court did not abuse its discretion in granting the preliminary injunction.
At a minimum, I believe that we may affirm on the alternative ground that “serious questions are raised and the balance of hardships tips sharply” in the Philippines’ favor. Hoopa Valley Tribe, 805 F.2d at 879; see also Marcos, 806 F.2d at 346 (upholding a preliminary injunction that the district court had issued on this ground). Clearly, this case presents serious questions on the merits. See Benda v. Grand Lodge of the Int’l Ass’n of Machinists, 584 F.2d 308, 315 (9th Cir.1978) (stating that the “irreducible minimum” for issuing a preliminary injunction is whether there is a “fair chance of success on the merits” or the questions are “serious enough to require litigation”), cert, dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). The majority opinion summarily, and I believe wrongly, dismisses this alternative approach. Majority op. at 1489-90.
In addition, the district court stated at the conclusion of the preliminary injunction hearing: “Balancing the hardship, the hardship is clearly greater on the side of the plaintiff.” Transcript of Preliminary Injunction Hearing at 52.12 In his appellate brief, Marcos stated that he would agree to freeze the assets involved in this suit if the suit were brought in the Philippines. This statement underscores the point that the issuance of a preliminary injunction imposes no hardship on him. Indeed, the defendants have introduced no evidence whatsoever to show how they might be harmed by the issuance of the preliminary injunction. The injunction is structured to ensure that Marcos will be able to use funds to pay “attorneys’ fees and normal living expenses.” The only restraint is that the Philippines must have 24 hours’ notice of a request to free assets for these purposes. Should it turn out later that the preliminary injunction was wrongfully issued, the $100,000 bond, provided by the Philippines under Fed.R.Civ.P. 65(c) will mitigate or cover any financial injury suffered by the defendants as a result of the injunction. See Costandi v. AAMCO Automatic Transmissions, Inc., 456 F.2d 941, 943 (9th Cir.1972) (per curiam); 11 C. Wright & A. Miller, supra, § 2948, at 444-45. Therefore, I believe that we may affirm on this alternative ground.
At the very least, prudence in a case as important as this would dictate a remand to the district court to make an explicit finding on the balance of hardships. However, in view of the district court’s express statement in open court on the balance of hardships tipping in favor of the Philippines, the absence of any evidence of harm to the Marcoses, and Marcos’ representation on appeal that he objected to the forum, not the freezing of his assets, I believe that we may affirm on the alternative ground fairly supported by the record.
In sum, I believe that much of the majority opinion reflects a concern for whether this case should be litigated in United States courts or in Philippine courts. Whether in view of the federal and pendent claims, and the underlying offenses against Philippine law, the district court should exercise its discretion to defer to a forum in the Philippines is a question not before this court. The issue is the propriety of a preliminary injunction to maintain the status quo pending the determination of the forum non conveniens and other issues. I cannot say that the district court abused its discretion in issuing the preliminary injunction. I therefore dissent.
. The Philippines’ verified complaint includes among its allegations of private unlawful conduct:
—that Ferdinand Marcos "converted, to his use and that of his friends, family, and associates, money, funds, and property belonging to the Philippines and its people." Complaint f 12.
—that the Marcoses committed "numerous acts of fraud, deceit, conversion, civil conspiracy, acts of racketeering, and other unlawful acts." Id. If 58.
—that the Marcoses stole and transported in their flight from the Philippines to Hawaii approximately $7 million belonging to the Philippine people, including currency, negotiable instruments, and transportable property. Id. 1HT 25-26.
. I emphasize that the Philippines has alleged serious federal offenses under RICO, including mail and wire fraud and the concealment and transportation of stolen property. I also note that the Second Circuit’s Marcos case predicated federal jurisdiction on the federal question arising from the foreign policy considerations posed by that action. Republic of the Philippines v. Marcos, 806 F.2d 344, 352-54 (2d Cir. 1986).
. In Section I.D below, I address the consequences of a more generous reading of the majority's analysis that would in fact permit inquiry into the defendants’ unofficial acts of "common fraud or theft.”
. The majority apparently concedes the distinction drawn in Jimenez between official and unofficial acts of a dictator, but distinguishes Jimenez on the ground that judicial review in that case was permitted because of the existence of an extradition treaty. Majority op. at 1484 n. 12. I agree, but do not see the point. Jimenez still supports the distinction between official and unofficial acts, even for a dictator. The existence of a treaty is relevant to the separate question of embarrassment of our executive branch, discussed below. I do not understand the majority to suggest that the absence of a treaty in this case requires invocation of the act of state doctrine. We must look to other indications from our executive branch. See infra Section I.C.
. The Philippine Constitution itself recognizes a distinction between official and unofficial acts of the president. It affords the president complete immunity from any suit brought during his tenure, but provides immunity from suit after he leaves office only for "official acts done by him or by others pursuant to his specific orders during his tenure.” Philippine Const, art. VII, § 17.
. In another Marcos case, the Fourth Circuit recently rejected the Marcoses’s argument that they should be entitled to head-of-state immunity, a doctrine of customary international law. The Fourth Circuit explained:
Head-of-state immunity is founded on the need for comity among nations and respect for the sovereignty of other nations; it should apply only when it serves those goals. In this case, application of the doctrine to Ferdinand and Imelda Marcos would clearly offend the present Philippine government, which has sought to waive the Marcos[es]’ immunity, and would therefore undermine the international comity that the immunity doctrine is designed to promote. Our view is that head-of-state immunity is primarily an attribute of state sovereignty, not an individual right. Respect for Philippine sovereignty requires us to honor the Philippine government’s revocation of the head-of-state immunity of Mr. and Mrs. Marcos.
In re Grand Jury Proceedings: John Doe # 700, 817 F.2d 1108, 1110-11, (4th Cir.1987).
. The majority’s attempt to explain away the significance of the statements and actions of our executive branch in other Marcos suits, see Majority op. at 1487-88, is strained and unpersuasive. Every indication supports the conclusion that the executive branch fears no embarrassment from the Philippines’ suit. Conversely, the majority can point to no evidence that would support its contrary ruminations on foreign policy.
Moreover, the majority infers that the executive branch supports granting the Philippines’ requests to freeze Marcos’ assets only if ultimate adjudication on the merits is made in Philippine courts. Id. at 1487-88. Here, the Philippines has requested a freeze of assets; at a later date, the district court will rule on the forum non conveniens issue and determine where the merits will be tried. Ironically and illogically, the majority concludes that, because the Philippines has also requested adjudication of the merits in our courts, no freeze will issue.
. Unaccountably, the majority asserts that even an explicit instruction from the executive branch in this case probably would not materially alter its analysis and that embarrassment to foreign relations is "a relatively minor consideration." Majority op. at 1488 n. 20.
. Far from being an “inflexible and all-encompassing rule,” Sabbatino, 376 U.S. at 428, 84 S.Ct. at 940, the question " ‘[wjhether to invoke the act of state doctrine is ultimately and always a judicial question.' ’’ Marcos, 806 F.2d at 358 (quoting Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 n. 2 (2d Cir.), cert. dismissed, — U.S. -, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985)). Application of the doctrine requires “a balancing test with the critical element being the potential for interference with our foreign relations.” DeRoburt, 733 F.2d at 703; Banco Credito Agricola, 757 F.2d at 521 (“The doctrine demands a case-by-case analysis of the extent to which in the. context of a particular dispute separation of powers concerns are implicated” with primary emphasis on whether "judicial consideration of the foreign sovereign’s act ... would embarrass or hinder the executive in the realm of foreign relations.”). See supra pp. 1495r96.
. The majority’s attempt to distinguish the Second Circuit case on the ground that adjudication on the merits would take place in the Philippines, see Majority op. at 1490 n. 25, is thus inconsistent with that court’s own assessment of the case.
. A related argument advanced by the defendants and apparently adopted by the majority, see Majority op. at 1488-90, is that resolution of the merits in this case will be thwarted by problems of justiciability. The Second Circuit found that "there is nothing more unmanageable about this case than about any other case involving theft, misappropriation, corporate veils, and constructive trusts.” Marcos, 806 F.2d at 356. I agree. Once the role of the act of state doctrine in this case is put into proper perspective, the potential for justiciability problems in this case does not loom large. First, no legitimate "political questions” are raised by this litigation outside of the prudential considerations relevant to analysis of the act of state doctrine. Second, 'although the district court has not yet ruled on what law will apply to each of the pendent claims, the defendants present no basis on which to believe that the selection of appropriate state, federal, and Philippine law will be difficult.
Even if the district court ultimately determined that Philippine courts were the appropriate forum in which to try the merits of those issues governed by Philippine law, the court would nonetheless maintain the preliminary injunction freezing the assets pending the resolution of those issues. In such a case, the court might still retain jurisdiction to adjudicate the claims based on federal and state law and to enforce any judgment based on a trial in Philippine or American courts.
. The court's written order did not include this finding. It issued the preliminary injunction instead on the basis of substantial likelihood of success on the merits and substantial danger of irreparable harm to the Philippines.