Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods

Opinion, concurring in the judgment, filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The Government argues that the district court lacked jurisdiction over this case because the question presented is not justicia-ble under the Administrative Procedure Act (“APA”) and the Constitution, and because the appellants lack standing. I agree the issue is not justiciable and, applying virtually the same analysis, that the appellants lack standing because their injury — if it exists — is not redressable. Therefore, I concur in the judgment affirming the district court’s dismissal order.

I.

Appellants contend that the advisory committee formed by the United States Department of Agriculture (“USDA”) is not “fairly balanced in terms of the points of view represented and the functions to be performed,” Federal Advisory Committee Act (“FACA”), 5 U.S.C. App. 2 § 5(b)(2), because it lacks a “consumer representative.” For any claim under section 5(b)(2) of the FACA to be justiciable under the APA, we must first conclude that Congress provided “a meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Where no such meaningful standard exists, “the statute (‘law’) can be taken to have ‘committed’ the decisionmak-ing to the agency’s judgment absolutely,” thereby precluding judicial review under 5 U.S.C. § 701(a)(2). See id. I cannot discern any meaningful standard that is susceptible of judicial application in the formulation “fairly balanced in terms of the points of view represented and the functions to be performed.” Therefore, I believe that judicial review is unavailable.

The relevant points of view on issues to be considered by an advisory committee are virtually infinite and, therefore, the judgment as to what constitutes an appropriate or “fair” balance of those views must be a political one. This kind of a decision is very similar to the one a chairman of a congressional committee must make when he or she determines which witnesses should be called to testify about proposed legislation. Thus, even before the points of view on an advisory committee can be balanced at all — “fairly” or otherwise — it must first be determined which points of view should be balanced. And I can conceive of no principled basis for a federal court to determine which among the myriad points of view deserve representation on particular advisory committees.1 Perhaps *427if one could hypothesize a situation in which only two or three points of view were relevant to a particular advisory committee, and if we could define those points of view with the requisite clarity, the question whether they were “fairly balanced” might be judicially reviewable — although I even have my doubts about that. Would the inclusion of one representative of a particular viewpoint be “fair” or would an even split between opposing viewpoints be required? Would a single representative of a viewpoint be enough if he were particularly persuasive? But surely, given the possible range of points of view on virtually any subject, an effort to reduce points of view to a few categories — as if they were political parties — is quite artificial and arbitrary. And once one recognizes that, it follows that judicial review of the application of this phrase is not available.

Appellants suggest that we should read section 5(b)(2)’s requirement that viewpoints be fairly balanced to mean that individuals or groups with a “direct interest” in the work of a particular committee are entitled to “some” representation on that committee. In other words, recognizing that balancing points of view is impossible, appellants would have us use “a direct interest” as a proxy for a point of view so that judicial review would be available. That approach — in which the plain language of the statute is distorted — is an example of the tail of judicial review wagging a statutory dog. It is true, however, that we have previously in National Anti-Hunger Coalition v. Executive Committee, 711 F.2d 1071, 1074 n. 2 (D.C.Cir.1983), at least suggested that construction. But even if the statute were so construed, I think it remains nonjusticiable because the phrase “direct interest” — in this context— is not definable.

In the first place, the line between those with “direct interests” and those with indirect or tangential ones is hopelessly manipulable. The courts would be obliged to make an arbitrary decision as to how attenuated an interest must be before it should be classified as “indirect. It would thus be necessary to determine whether the term “interest” refers to economic, ideological, or intellectual interest (or all three). Are academics, for example, “directly interested” in the purpose of advisory committees working in their field? They are directly interested intellectually, but they may not have a financial interest in any of the committee’s decisions.

Even if we could decide which groups or individuals possessed such a direct interest, we would be forced to engage in the utterly nonjudicial task of determining whether that interest enjoyed “some” representation on the committee. Clearly, “some” representation cannot mean “direct” representation'; even the National Anti-Hunger court recognized that section 5 of the FACA “confers no cognizable personal right to an advisory committee appointment” on anyone, see National Anti-Hunger Coalition, 711 F.2d at 1074 n. 2, regardless of the directness of his interest in the committee’s function. Is a court then to decide whether a committee included “some” representation of a given person or group by crudely dividing committee members into political, social, or economic status groups and then comparing the appointments with the status groups of those seeking representation? Or might the court examine the members’ policy views on the relevant subject, and see how they compare with those of the person or group seeking representation? Before taking the former tack, the court must somehow identify which status groups ought to be represented on the committee in question, which, as I have argued, is itself a quintessentially political decision. Appellants would divide the world of those interested in microbiological food contamination into three “classes” (government, industry, and consumers), each of which it alleges must have representation on the Committee. But there surely are other appropriate divisions, and choosing the best one is a political task not properly undertaken by life-*428tenured, uneleeted federal judges. On the other hand, to examine a member’s relevant policy views — which brings one back to “points of view” which the direct interest proxy was designed to avoid — the court must somehow determine whether the views of a particular committee member are sufficiently close to those of the appellants to deem them “representative.” Again, I see no principled way to decide such a question. Would the court rule, for instance, that when two parties agree on a certain percentage (what percentage?) of issues (which issues?) one may be deemed “representative” of the other? Neither the statutory language nor the appellants’ proffered “standard,” therefore, offers us effective guidance to determine whether an advisory committee is “fairly balanced in terms of the points of view represented.”

Judge Edwards believes that we are bound to conclude that the phrase “fairly balanced in terms of points of view represented” is justiciable because our prior precedent, National Anti-Hunger Coalition v. Executive Committee, 711 F.2d 1071 (D.C.Cir.1983), governs this issue. To be sure, we there tentatively concluded, as Judge Friedman observes, that exclusion from an advisory committee may cause injury-in-fact for Article III purposes to those excluded from a committee or those who claim to be inadequately represented provided they have a “direct interest in the committee’s purpose,” National Anti-Hunger Coalition v. Executive Committee, 711 F.2d at 1074 n. 2, but even that observation was dicta because we stated “[t]he standing question is a close one that we need not resolve to decide this ap-peal_” Id. at 1073-74. In any event, we did not discuss either the basic justicia-bility of the standard or the closely-related concept of redressability, another component of standing, and as such National Anti-Hunger is hardly precedent on these questions. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984); Haitian Refugee Center v. Gracey, 809 F.2d 794, 800 (D.C.Cir.1987). To affirm the district court in National Anti-Hunger, (as in Judge Friedman’s opinion in this case), it was, I suppose, not analytically essential to reach the justiciability issue, although I believe it the proper course for a federal court first to decide an apparent jurisdictional question.2

The instant case illustrates powerfully, in my view, the kind of arbitrary judgments courts would have to make to adjudicate claims under FACA’s “fairly balanced” requirement. Appellants assert that, at minimum, consumers are affected by the work of this Committee and therefore consumers must have “some” representation on it.3 Undeniably, consumers will be directly affected by the work of the Committee since it advises the Department of Agriculture on the desirable form and extent of federal regulation of food prod*429ucts, but I hardly think that proposition helps appellants’ case. Everyone in the entire United States is a consumer of food products, so I do not understand why any American — including all those who have already been appointed to the Committee— would not legitimately be considered a consumer representative. Whatever else he or she may do, that hypothetical person is a consumer.

Appellants’ brief defines a consumer representative as one who “works for or is associated with a consumer or public health organization.” But why should an organization that labels itself a representative of consumers have any greater legal claim to placement on the Advisory Committee than any other individual American or organization who buys or eats food? Indeed, at oral argument, counsel for petitioner conceded that the name of an organization could not be determinative in judging whether an organization qualified as a consumer representative, thus implying that we as a court would have to determine which organizations or individuals qualified as bona fide “consumer representatives.”

I think it rather obvious that appellants thereby wish the court either to decide, or simply to assume the resolution of a major political question of our time. Appellants represent one philosophical, ideological, and political view of consumer welfare. I think it fair to describe that view as one that typically urges greater governmental regulation of the production of goods or services in the marketplace. But that view is hardly the only one that claims to maximize consumer welfare. At the other end of the political-ideological spectrum are those individuals or organizations who generally oppose government regulation since the cost incurred translates into higher prices for consumers and they believe those higher prices exceed the benefits that regulation is likely to afford. This debate is one key element in the division between the two major political parties in the United States. As such, it is hardly open to a federal court to express its view on such an issue by determining which kind of organization or individual legitimately represents consumers.4

It may well be that some congressmen5 and often the press use the term “consumer representative” to denote solely organizations such as appellants’. But that means only that appellants have been relatively successful in gaining political acceptance — at least in some quarters — for the proposition that consumers are better served by more regulation than by less. Typically, political or advocacy organizations use a name that suggests that they speak for a majority of citizens within the relevant constituency because, by that technique, they enhance their political clout. The contemporary political landscape provides many variations on this theme; the Moral Majority, the League of Women Voters, and the People for the American Way are just examples. I suppose it could be said that appellants, by claiming to speak for everyone who consumes food, have linguistically trumped all other advocacy organizations, but semantic claims notwithstanding, it is not up to the federal judiciary to decide how many Americans any such organization truly represents. In our system of government, that sort of question is implicitly determined by elections.

In short, I do not think that the FACA provides us with legal principles to determine whether a particular advisory commit*430tee is “fairly balanced in terms of the points of view represented.” Nor does appellants’ claim that “consumer representatives” must have “some” representation offer a workable legal standard. I therefore believe that the USDA’s attempt to strike a “fair balance[ ]” among the members of an advisory committee is an activity “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and thus unreviewable in federal court.6

II.

Appellants also claim that the advisory committee in question is “inappropriately influenced ... by [a] special interest” in violation of section 5(b)(3) of the FACA because too many appointments were made to food industry executives. That section reads in full:

(b) Any such legislation [establishing an advisory committee] shall ... (3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment[.]

This provision, on its face, is directed to the establishment of 'procedures to prevent “inappropriate” external influences on an already constituted advisory committee by outside special interests or the appointing body. I doubt very much that it has any applicability to a committee’s membership. Indeed, the provision presupposes that an advisory committee is already in existence and “fairly balanced” in accordance with section 5(b)(2).

Assuming arguendo that section 5(b)(3) is relevant to committee membership I do not think it adds any meaningful standard for judicial enforcement for it is still dependent on the meaning of a value-laden, undefinable term. Even if a fairly balanced advisory committee can be thought to be one that is not inappropriately weighted in the direction of a “special interest,” how would we determine, for instance, when an interest is “special” as opposed to “general?” “Special interest” may do as a political pejorative (typically referring to an interest of which the speaker disapproves), but I do not see how, at least in the context of this statute, we have any way to determine what it means for purposes of judicial review. Appellants suggest that if a member of the Committee has an economic stake in its recommendations, that constitutes a “special” as opposed to “general” interest. But everyone has an economic interest in the price of food, so that standard cannot distinguish special from general interest. It might be thought, however, that food industry employees and consultants have an added economic stake beyond those who simply pay for food, and that their interest can therefore be labeled “special” because it is not shared by the public at large. But in the same sense, any paid member of appellants’ organization who is a candidate for membership on the Committee would have an economic interest in the work of the Committee — not shared by the public — and *431therefore a special interest. I dare say that virtually anyone in the United States gainfully employed or with some investments would have, in appellants’ terms, a special interest with regard to some — perhaps all — advisory committees. For that matter, why shouldn’t a group with an ideological rather than an economic stake— the Sierra Club or the National Rifle Association, for example — be considered a “special interest?” How should we go about classifying these interests? And what legally discernible principles could be employed to determine when a particular special interest is overly represented — when its influence is “inappropriate?”

Perhaps our task would be marginally less daunting if we accepted appellants’ assumption that every member of the Committee will express views on matters before the Committee that reflect his or her employer’s interest. But that may or may not be so. Congress did not provide for advisory committees balanced in accordance with sources of income, but rather in accordance with points of view. Surely not everyone employed by or consulting for organizations that have a definable economic stake in the Committee’s recommendations will have a predictable view. Indeed, even organizations with ostensibly shared economic or ideological interests may well differ as to the desirable degree of regulation. It is not unknown for certain large corporations to be the most zealous advocates of increased regulation.

In sum, I do not think that recourse to section 5(b)(3) makes the case any more justiciable than it was under section 5(b)(2). Under both subsections appellants ask us to make a policy judgment, and an arbitrary one at'that, as to the optimum character of the Advisory Committee. In my view, both subsections are “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. at 830,105 S.Ct. at 1655, and therefore the USDA’s actions are committed to its discretion by law and exempted from judicial review by section 701(a)(2) of the APA.

III.

For the very reason that this case is nonjusticiable, appellants lack standing to sue. Their injury, even assuming it exists, is not redressable unless the court takes a series of leaps long enough to try the faith of any believer. A court attempting to fashion a decree to vindicate appellants’ claim would be forced, either overtly or impliedly, to make the same arbitrary policy judgments described above. For instance, ordering the USDA to place one “consumer representative” on the Committee would mean that the court had decided (1) that consumers of food (i.e. everyone) are one of the groups among which the USDA should have balanced when forming the Committee; (2) that consumers of food are not currently represented on the Committee; (3) that the existing balance of viewpoints on the Committee is not fair; and (4) that adding one (or six or ten) “consumer representative(s)” would make that balance fair. Moreover, such an order would necessarily assume that there is such a thing as an identifiable consumer perspective to be represented, a problematic assumption to say the least. Judge Edwards’ suggestion that redressability is not a problem because the court may simply enjoin the operation of the committee until adequate consumer representation is appointed begs the essential question in my view, since he does not explain how “consumer representative” would be defined— other than to suggest that he or she should possess “a background in consumer issues,” separate opinion of Edwards, J, at 437. The difficulty in redressing the appellants’ alleged injury is analytically identical to adjudicating their claim in the first instance, a task, as I have indicated, that I think a court cannot perform.

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Therefore, I concur in the judgment affirming the district court’s order dismissing appellants’ complaint.

. Judge Edwards passes without comment over this most formidable of hurdles when he analogizes this section of the FACA to the statute that the Supreme Court found to be susceptible of judicial review in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), that forbade federal financing of highways through parks unless no "feasible and prudent” alternative exists and unless “all possible planning to minimize harm to the park” was undertaken. See separate opinion of Edwards, J. at 434. If we knew which points of view were to be fairly balanced on an advisory committee, the case for justiciability might be stronger — though by no means clear — despite the imprecise nature of the phrase “fairly bal*427anced." The Court in Overton Park was not forced to make any such threshold political determination.

. The Supreme Court's decision in Public Citizen v. Department of Justice, — U.S. -, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), does not imply in any way that claims under section 5(b)(2) of the FACA are justiciable. But see separate opinion of Edwards, J. at 434. First, as Judge Edwards notes, the plaintiffs in that case alleged a violation, not of the "fairly balanced” requirement, but of the sections of the FACA requiring advisory committees to “file a charter [section 9(c) ], afford notice of its meetings, open those meetings to the public [section 10(a) ], and make its minutes, records, and reports available for public inspection and copying [section 10(b) ].” 109 S.Ct. at 2562-63. It is hardly surprising that the Court saw no issue of justiciability in the prospect of determining whether any of those rather concrete requirements had been violated or in fashioning appropriate relief. Second, the Supreme Court had no occasion to apply any section of the FACA in Public Citizen v. Department of Justice since it held that the FACA did not even apply to the American Bar Association committee alleged to be violating its terms. Id. at 2572-73.

. If we did adopt appellants’ “some representation" test, the USDA’s recent appointment to the Committee of one of Public Citizen’s own nominees, Dr. Frank Calia, might render this case moot. If that appointment does not satisfy appellants' claim, I do not see how a court could resolve the case without opining on what numerical representation on the Committee constitutes a “fair[ ] balance.” In their supplemental brief discussing Dr. Calia’s appointment, appellants shift their argument away from the composition of the Committee as a whole, instead stressing that they are ”troubl[ed]" because one of the Committee's two “working groups” still lacks a “consumer representative."

. Indeed, counsel for appellants conceded at oral argument that the economist Milton Friedman — presumably an opponent of most government regulation — might, at least facially, qualify as a consumer representative. In their brief, appellants assert that their position “is that the Committee lacks any consumer representatives, not that it lacks consumer representatives with certain specific viewpoints." But if consumer representatives can have diametrically opposed views about what constitutes consumer welfare, I do not see how a court can differentiate legitimate from illegitimate consumer representatives.

. See, e.g., H.R.Rep. No. 1017, 92d Cong., 2d Sess. 6 (1972), U.S.Code Cong. & Admin.News 1972, p. 3491 (identifying "consumer groups" as among several groups not represented on an advisory council that the House Committee believed lacked a balanced representation of different points of view).

. Even if Congress did intend there to be judicial review of agency compliance with section 5(b)(2) — for instance, if it had expressly provided that the "fairly balanced” requirement could be enforced in federal court — I have serious doubts that such review would be constitutional. Congress may not constitutionally confer on the judiciary the power to make policy choices unguided by statutory standards. See, e.g., Keller v. Potomac Elec. Power Co., 261 U.S. 428, 444, 43 S.Ct. 445, 449, 67 L.Ed. 731 (1923) (concluding, in review of statute authorizing de novo Supreme Court review of ratemaking proceedings, that "[sjuch legislative or administrative jurisdiction ... can not be conferred on this Court either directly or by appeal.”); Green v. Frazier, 253 U.S. 233, 240, 40 S.Ct. 499, 501, 64 L.Ed. 878 (1920) (suggesting that question of whether states have used their taxing powers for "public purposes” is not fit for judicial resolution; "[qjuestions of policy are not submitted to judicial determination, and the courts have no general authority of supervision over the exercise of discretion which under our system is reposed in the people or other departments of government.”). See abo United States Dep’t of Justice v. Reporters Comm., - U.S. -, 109 S.Ct. 1468, 1483-85, 103 L.Ed.2d 774 (1989) (rejecting a statutory interpretation that would require federal judges to conduct case-by-case, ad hoc balance of individuals’ privacy interest against the public interest in the disclosure of certain information).