dissenting:
In Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), the Supreme Court cautioned that when reviewing the Secretary of Labor’s determination not to sue to set aside a union election “it is not the function of the Court to determine whether or not the case should be brought or what its outcome would be.” Id. at 573, 95 S.Ct. at 1860. The majority opinion quite clearly fuses both questions and, without hesitation, decides them; thereby exceeding the boundaries of legitimate judicial review. Had the Secretary brought this suit, I suspect I could find common ground with the majority, but since that is not the case I respectfully dissent.
The Secretary’s decision not to sue is an exercise of discretion entrusted him by Congress; it is to be tested by a reviewing court upon a submission of the Secretary’s statement of reasons, only under the arbitrary and capricious standard and, as Bachowski makes clear, a particularly narrow arbitrary and capricious standard at that. See id. at 572-73, 95 S.Ct. at 1860. Here, unlike Bachowski, the Secretary declined to sue because be concluded no violation of law occurred.1 The Secretary distinguished the fifty percent meeting attendance requirement at issue here from that presented in Local 3489, United Steelworkers v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977), on grounds that it applies only to the year before the election, whereas in Steelworkers the requirement applied for three years before the election. Since a candidate for office could easily comply with the requirement (particularly in light of its lenient excuse provision) 2 by disclosing his intentions as late as six months before the election, the Secretary believed the attendance requirement a “reasonable one” even though it turns out to have disqualified 97% of the membership.
The majority opinion rests on the proposition that the Secretary’s reading of Steelworkers is not only wrong but irresponsible because Steelworkers de facto holds that an attendance requirement that disqualified 96.5% of the members is per se unlawful. The difficulty with the majority opinion, it seems to me, is that the Court in Steelworkers assiduously avoided the holding that my colleagues ascribe to it. Indeed, the primary support for the majority’s reading comes from the dissenting opinion of Justice Powell, and even he only claimed the majority “comes close” to adopting a per se rule. Id. at 315, 97 S.Ct. *788at 617 (Powell, J., dissenting). The Steelworkers majority, to be sure, strongly emphasized the importance of the percentage of members disqualified, but the Court’s underlying concern was the degree to which the rule actually excluded members who would have run for office but for the attendance requirement. In response to the union’s argument that the attendance rule was not antidemocratic because prospective candidates could qualify simply by attending meetings, the Court endorsed the Secretary’s informed view that to require a member to decide upon a potential candidacy as long as eighteen months before an election — before issues emerge that could generate opposition — would unduly discourage candidacies. Id. at 311 & n. 7, 97 S.Ct. at 615 & n. 7. The Court emphasized that “member interest in changing union leadership is likely to be at its highest only shortly before election.” Id. at 311, 97 S.Ct. at 615. Implicitly at least, the Court thereby suggested that an attendance requirement that took operative effect only shortly before an election might stand on surer footing. Indeed, the Court in approving the Secretary’s case-by-case approach to attendance requirements noted that that policy — which remains unchanged— weighed, inter alia, “the period of time over which the requirement extends.” Id. at 313, 97 S.Ct. at 616-17. I therefore think it impossible to conclude that Steelworkers — a case in which the Secretary sued and the Court deferred to the Secretary’s interpretation — forecloses the Secretary’s position here.
If I am correct about Steelworkers, the analytical structure of the majority opinion collapses. Absent precise and binding precedent, the court lacks adequate grounds to reject the Secretary’s interpretation of the statute as capricious. We should bear in mind that the statutory provision in question, section 401(e), 29 U.S.C. § 481(e) (1982), guarantees candidates only a “reasonable opportunity” for nomination and even that opportunity is subject to “reasonable qualifications uniformly imposed.” If the Secretary brought suit we would surely be obliged, as was the Supreme Court in Steelworkers, to pay deference to the Secretary’s view of what is reasonable; courts, particularly federal courts, are not normally thought authorized to apply their own standards of reasonableness. To me, it follows a fortiori that the Secretary’s decision not to sue on grounds that the attendance requirement is reasonable should be paid at least the same — if not more — deference. But the majority does more than simply fail to give sufficient deference to the Secretary. It also eviscerates the “reasonableness” standard of section 401(e). The logic of the majority’s opinion would require the Secretary to sue to overturn an election if a union attendance requirement, no matter how innocuous, turned out in hindsight to disqualify some percentage (presumably in excess of 90%) of the membership.3 I am not sure that even if the Secretary wished to take that position it would be a reasonable interpretation of the statute.
The panel majority puts less weight upon, but nevertheless also relies on, fragments in briefs filed by the Secretary in other cases to support its holding here. I think that is plainly improper. The court is thereby drawn into supervision of the Secretary’s litigating strategy. The Supreme Court has recognized the constitutional delicacy of this unusual kind of judicial role and has determined that absent unusual circumstances, not here present, review should be “confined to examinations of the ‘reasons’ statement, and the determination whether the statement, without more, evinces that the Secretary’s discretion is so irrational as to constitute the decision arbitrary or capricious.” Bachowski, 421 U.S. at 572-73, 95 S.Ct. at 1860.
We are treading on very thin judicial ice. I very much doubt the constitutional propriety of an order directing the Secretary to file suit, cf. Smith v. United States, 375 F.2d 243, 246-48 (5th Cir.1967); United States v. Cox, 342 F.2d 167, 171-73 (5th Cir.1965); it seems the case or controversy *789would then be between the court and the union, and we might be required to conduct the litigation before ourselves. So in that respect, it is not at all clear to me what counsel meant, or should have meant, when he said at oral argument that if we affirmed the district court the Secretary would “proceed appropriately.” The district court and majority opinion only establish, in my view, that if any of those judges had been Secretary of Labor they would have sued. (I might have as well.) The executive branch might well conclude reasonably that this opinion constitutes intolerable judicial overreaching.
. In Bachowski, the Secretary had received complaints about similar illegal United Steelworkers of America election practices in six districts. The Secretary found, however, that in only two districts the violations had affected the outcome of the election and declined to bring suit with respect to the elections in the other four districts. Bachowski, 421 U.S. at 563, 95 S.Ct. at 1855-56.
. The majority contends that the liberal excuse provision to the attendance rules undermines the rule's purpose. In truth, the excuse provision cuts both ways. If we focus on whether the attendance requirement serves its purpose of encouraging attendance, then perhaps the excuse provision undercuts that purpose. But if we focus on whether the attendance rule places an unreasonable burden on prospective candidates, then the excuse provision probably supports the legitimacy of the rule because it enables members to run for office even if they cannot make all the necessary meetings. In any event, the Secretary found that the actual effect of the excuse provision in this case was minimal since it was rarely used. In light of the considerable deference we must give the Secretary’s judgment, I believe the majority errs by rejecting the Secretary’s position on the relevance of the excuse provision.
. Without any case support, the majority opinion further constrains the Secretary’s judgment of what is reasonable under the statute by holding that it is impermissible for the Secretary to even consider whether a particular qualification is widespread within the labor movement. See Maj. Op. n. 5. Nowhere do I see a manifestation of such a draconian congressional intent.