concurring in the judgment:
I
Although I do not disagree with the majority’s conclusion that Rockwell did not comply with a set of objective requirements for admission into the Voluntary Disclosure Program, I respectfully suggest that *936my colleagues reach this decision for the wrong reason. Nothing Rockwell could have done would have resulted in its automatic acceptance into the program. The reason Rockwell’s actions did not constitute compliance is that there are no objective requirements with which it could have complied. The program established by the Taft letter and its enclosure leaves the subjective determination whether to admit a particular contractor to the unreviewable discretion of the Department of Defense.
My colleagues deliberately bypass the first and critical question in this case: whether the government documents at issue here establish a program that is susceptible to judicial enforcement. Principles of orderly decision-making require that we must first determine whether those documents set forth criteria to be applied by the judiciary. Only if they do does it become necessary for us to decide whether in a given case such criteria have been satisfied.
The vice of the majority’s approach is not simply that it is logically backwards. More important, it causes my colleagues to become entangled, improperly, in the unwarranted supervision of Executive Branch decisions and to exceed the limits of their proper judicial role. As I conclude below, see infra at 936-939, the Department of Defense and Department of Justice documents create no judicially enforceable rights. Therefore, courts have no business deciding whether Rockwell complied with any of the criteria set forth in those documents. By doing so in this case, the majority unintentionally opens the door to case by case evaluation óf contractors’ attempts to “qualify” for the program, despite the fact that the judiciary has not been authorized to make such judgments.
Regrettably, the practical consequence of the majority’s approach may be considerable needless litigation. Although I recognize that my colleagues do not purport to decide the critical threshold fundamental question, their decision that Rockwell’s actions do not measure up to an objective standard of compliance sends a false signal to contractors — a signal that given the proper circumstances their actions could meet such a standard. Today the majority holds that Rockwell’s actions were insufficient to qualify for admission into the program. In the next case we will surely face a claim by a contractor who has done far more than Rockwell. By subverting the ordinary logical processes and avoiding the critical threshold inquiry we perform a disservice to the courts, defense contractors, and the Department of Defense. Accordingly, I believe it is worthwhile to set forth clearly the reasons why the program at issue creates no judicially enforceable rights.
II
Rockwell argues that dismissal of the indictment is warranted for what it deems a breach of a promise by the Department of Defense. Rockwell asserts that the Taft letter and its enclosure created an obligation on the part of the Department of Defense to: (1) identify someone to represent the Department in assessing Rockwell’s integrity; (2) try to expedite completion of investigations and audits of Rockwell; and (3) advise the Department of Justice of the nature and extent of Rockwell’s disclosure and any corrective action instituted by Rockwell. In addition, Rockwell argues that the government failed to comply with a procedure set forth in the Department of Justice guidelines requiring the United States Attorneys’ office to notify and obtain the concurrence of the Defense Procurement Fraud Unit of the Department of Justice before initiating a prosecution against a voluntary discloser. In my view, neither the Department of Defense nor the Department of Justice documents grant defense contractors any judicially enforceable rights.
A. The Taft Letter and Enclosure
The government argues that even if the Taft letter and its enclosure constitutes a general promise to apply certain procedures to all defense contractors that voluntarily disclose fraudulent practices, the promise creates no judicially enforceable rights because it is not contained in a stat*937ute or regulation. Thus, according to the Department, “there is no law to apply” in reviewing Department decisions implementing the Voluntary Disclosure Program. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971).
The government’s position that an agency pronouncement worded as a promise can only bind the agency if the promise is contained in a regulation published in the Federal Register and promulgated in accordance with the requirements of the Administrative Procedure Act constitutes an overstatement of the law. Although in most circumstances agency pronouncements will only be given “the force and effect of law” if they “conform to [these] procedural requirements,” Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.), cert. denied, 459 U.S. 907, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982), contract principles may require an agency to honor its word even where it does not speak through regulations. For example, despite the fact that plea bargain agreements and cooperation agreements are not promulgated as regulations, they are judicially enforceable against the government. See, e.g., United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980) (plea bargain agreement is contractual in nature); United States v. Carrillo, 709 F.2d 35, 36-37 (9th Cir.1983) (cooperation agreement is enforceable under contract principles). In this case it is necessary to determine whether there was a judicially enforceable agreement between the Department of Defense and Rockwell that Rockwell would be accorded the treatment outlined in the Taft letter and enclosure. More specifically, we need to decide whether the government made Rockwell and other defense contractors a unilateral offer which could be accepted by the unilateral action of the contractor.
I note first that Rockwell does not and cannot claim that it had a specific express agreement with the Department of Defense guaranteeing favorable consideration. The Taft letter enclosure states that defense contractors who wish to ensure that their interests will be protected can enter into written disclosure agreements with the Department of Defense and the Department of Justice. Had Rockwell entered into such an agreement, the government would have been bound to honor it. See Carrillo, 709 F.2d at 36-37 (affirming district court’s dismissal of the indictment where government violated the terms of a disclosure agreement). However, there was no written disclosure agreement between Rockwell and either the Department of Defense or the Department of Justice. Therefore, if the Department of Defense breached a promise to Rockwell, it was a promise that must be implied from the Taft letter and its enclosure.1 There are several reasons why there was no such judicially enforceable promise.
I begin with the background understanding that basic decisions about how to conduct a criminal investigation and prosecution are generally left to the discretion of the Executive Branch. See e.g., Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985) (characterizing a prosecutor’s decision not to indict as “a decision which has long been regarded as the special province of the Executive Branch”). Given the implications for the constitutional principle of separation of powers, courts do not inject themselves into traditionally Executive areas of decision-making unless there is a clear basis for doing so. Cf. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977) (holding that a court may not dismiss an indictment, and thereby encroach upon the prerogatives of the Executive Branch “unless there is a clear basis in fact and law for doing so”). The case before us involves the traditionally Execu*938tive realm of investigation: the Taft letter and enclosure concerns preliminary investigative measures regarding allegations of contractor wrongdoing. In the absence of clear evidence to the contrary, courts should not assume that the Department intended them to scrutinize Executive decisions about when and how to take such steps.
Unlike plea agreements, the kinds of Executive decisions involved here are not readily susceptible to judicial supervision. In the typical plea agreement case the Executive’s promise concerns the government’s actions vis-a-vis a criminal defendant who has either been indicted or is about to be: the Executive promises some form of immunity from prosecution. A court can enforce that promise with minimal intrusion into the day to day operations of the Executive by granting whatever immunity has been guaranteed. By contrast, here the alleged promise concerns decisions about internal Executive procedures — i.e., the identification of a Department of Defense official to assess the contractor’s integrity, the expedition of the Department’s investigation, and communications between the Departments of Defense and Justice. We should not lightly infer that the Executive Branch intended that such internal processes be subject to judicial control.
Moreover, the determination whether to admit a contractor to the program requires the exercise of Executive judgment. The enclosure stated: “[djefining DoD expectations of ‘cooperation’ in any situation will depend on the individual facts or circumstances underlying the disclosure.” That language indicates that the Department of Defense’s decision whether to admit an individual contractor into the program will be based on subjective factors to be evaluated by the Department of Defense. Clearly, the Department was not setting up an objective system of evaluation suitable for review by the courts or enforcement by judicial order.
There is another reason why I conclude that the Taft letter and enclosure did not contain an enforceable promise. The program does not merely require that in order to gain acceptance contractors must meet a particular standard. Rather, as set forth in the Taft letter enclosure, in order for a contractor to earn voluntary discloser status it must reach a specific understanding with the Department of Defense on a number of subjects. There must be agreements as to disciplinary action, restitution, and the scope and extent of future contractor cooperation.
A prudent contractor would therefore recognize that merely disclosing fraudulent acts to the Department guarantees nothing. Further understandings must be reached. To facilitate such understandings the Taft letter enclosure provided that “DoD may enter into a written agreement with any contractor seeking to make a voluntary disclosure where such an agreement will facilitate follow-on action without improperly limiting the responsibilities of the Government.” 2 In addition, the fact that the criteria used by the Department to determine whether to accept a contractor into the program are subjective should alert potential disclosers that Department decisions whether to treat them as volunteers are discretionary.
Thus it is clear that the statements of the Department at issue cannot reasonably be understood as an offer to be bound to a unilateral contract with any defense contractor who provides disclosure information.3 Rather, it is for the Department to determine whether a contractor should be treated as a voluntary discloser, and if so, what steps that contractor must then take in order to receive the benefits of the disclosure program. Defense contractors— *939who as a class are sophisticated and have access to sophisticated legal counsel — could not fail to appreciate this fact.
It is worth emphasizing that an agency is free to make virtually anything within its statutory authority a matter of right. Had the Department of Defense expressly promised particular treatment to all companies that disclose a fraudulent practice, we would be faced with a very different case. Here, however, as I have stated, there are two principal reasons why we should not read the Taft letter and enclosure as containing an enforceable promise to that effect. First, the documents do not establish the type of program that is suitable for enforcement by a court: the criteria for admission into the program are so inherently subjective that they are not susceptible to judicial application. Second, as the Taft letter and enclosure makes clear, the program requires specific future understandings between an individual discloser and the Department on a wide range of issues before it can be implemented in a particular case. Thus the Taft letter and enclosure merely comprises a means of alerting defense contractors to the existence of internal Department of Defense procedures; it does not serve as the source of individual contractor rights.
B. The Department of Justice Guidelines
Rockwell also claims that the indictment should be dismissed because the government failed to comply with Department of Justice guidelines. Rockwell’s reliance on those guidelines is equally misplaced. Although the guidelines state that the United States Attorneys’ office should notify and obtain the concurrence of the Defense Procurement Fraud Unit before initiating a prosecution against a voluntary discloser, they also expressly state that they “do not establish any rights for corporations being reviewed under the Voluntary Disclosure Program.” In light of this unequivocal statement, Rockwell’s claim that it had a right to have the Department of Justice comply with the guidelines is meritless. See United States v. Wilson, 614 F.2d 1224, 1227 (9th Cir.1980) (holding that United States Attorneys’ Manual guidelines do not have the force and effect of law).
Thus there is no governmental misconduct here, let alone governmental misconduct sufficient to require dismissal of an indictment. See United States v. Larrazolo, 869 F.2d 1354, 1357 (9th Cir.1989) (dismissal of indictment is the appropriate remedy for prosecutorial misconduct only if there is “flagrant error” that prejudices the defendant).
CONCLUSION
I would not base our affirmance on Rockwell’s failure to comply with some inchoate standard for admission into the Voluntary Disclosure Program. Rather, I would hold that the Department of Defense’s decision whether to afford a defense contractor the benefit of that program is unreviewable. Although the majority opinion could arguably be read as adopting that position as an alternative holding,41 do not believe that is sufficient. It is important to point out clearly and expressly the discretionary nature of the Voluntary Disclosure Program. Additional judicial resources should not be wasted litigating the question whether contractors have met subjective criteria that can be applied only by the Department of Defense and that are not within the proper province of the courts.
. As my colleagues point out, Rockwell mistakenly relies on United States v. Minnesota Mfg. & Mining Co., 551 F.2d 1106 (8th Cir.1977), where the court affirmed the dismissal of an indictment as the appropriate remedy for the government’s violation of the terms of an oral plea agreement with the defendant. In that case the parties disputed the terms but not the existence of a plea agreement. Here, Rockwell did not enter into any specific agreement with the government.
. A written agreement is not necessarily required for a contractor to be admitted into the program so long as the specific oral agreement covers the necessary points, although I can see no reason why a sensible contractor would not insist on a written agreement.
. "The law of contracts presents an apt model to guide and inform our analysis in the context of the facts presented by this case. We emphasize, however, that we are not obliged to follow blindly the law of contracts in assessing plea or cooperation agreements in all contexts." Carrillo, 709 F.2d at 36 n. 1.
. See ante at 935. ("Moreover, nowhere in the record is there any indication of any promise by the government not to indict Rockwell even if it were a voluntary discloser.... The Taft letter indicates that the Department of Defense may enter into a written agreement to resolve issues related to legal concerns, but no such written agreement or even oral agreement was entered into here.”)