dissenting:
In holding that the Department of Justice may require an applicant to submit to urinalysis as a precondition of employment in the Antitrust Division, the majority in my view impermissibly restricts the protection of the fourth amendment. Along the way, it gives inadequate weight to existing circuit authority, bases its opinion on a palpable logical inconsistency, improperly injects a new element into the fourth amendment equation and conducts its balancing test with a thumb firmly on the government’s side of the scale.
It is well established in fourth amendment jurisprudence that, in order to compel an individual to submit to suspicionless drug testing, the government must establish that its interests in conducting the testing outweigh the individual’s reasonable expectations of privacy. See, e.g., Hartness v. Bush, 919 F.2d 170, 172 (D.C.Cir.1990). The Supreme Court conducted this balancing test in two recent decisions, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) and we have applied the principles from these decisions in several recent opinions, including Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). These three decisions provide the tools necessary to conduct the balancing inquiry here. I believe the majority, however, misuses those tools.
I.
The first, and to my mind the paramount, flaw in the majority’s opinion is its failure to consider an element that, until today, has been central to the fourth amendment evaluation of all similar government drug testing programs. Courts that have considered the constitutionality of drug testing programs have examined the connection between an individual’s duties and the harm the government seeks to avert through the program. Only when the government has established a sufficient nexus between the two has the program been upheld.
In Skinner, for example, the Court focused on the “safety-sensitive tasks” that railroad employees perform, 109 S.Ct. at 1414, and found testing justified because the covered employees “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. at 1419. Analogizing the railroad workers to those with “routine access to dangerous nuclear power facilities,” the Court noted that they “can cause great human loss before any signs of impairment become noticeable to supervisors or others.” Id.
Similarly, in Von Raab, the Court held that, in testing drug interdiction personnel, the government had a “compelling interest,” 109 S.Ct. at 1393, that proceeded from at least two of the dangers that employee drug use created. First, the Court noted the “national interest in self protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics.” Id. Second, the Court recognized the special dangers present when a government employee carries a firearm: “We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force.” Id.
In addition, this court has insisted that the nexus portion of the fourth amendment analysis be satisfied. In Harmon, we required a “clear, direct nexus ... between *1195the nature of the employee’s duty and the nature of the feared violation” in order to uphold a mandatory urinalysis program aimed at protecting classified information. 878 F.2d at 490. Noting that, in Von Raab, the Supreme Court had found such a nexus to exist with respect to “truly sensitive information,” 109 S.Ct. at 1396, we ruled that “the government may properly make testing a requirement for holding a top secret security clearance.” 878 F.2d at 492.1 Our decision in Harmon applied, however, only to the narrow class of Justice Department employees whose drug use, we held, could pose a sufficiently direct and immediate danger to warrant the intrusion of mandatory urinalysis. We emphasized that the requisite nexus does not exist for all Justice Department lawyers: “The government has ... required that all employees who prosecute criminal cases must undergo random testing. We do not believe, however, that under Von Raab an attorney who prosecutes antitrust or securities fraud cases can plausibly be analogized to a customs agent whose job is drug interdiction.” 878 F.2d at 491 (emphasis added; original emphasis omitted); see also id. at 498 (Silberman, J., concurring) (noting the constitutional difficulties posed by testing of employees who are “never involved with drug-related crime” and concurring in court’s “refusal to authorize drug testing of employees (like those in the Antitrust or Civil Rights Division) who are not responsible for drug-related criminal investigations and prosecutions”) (emphasis added; original emphasis omitted).
In its opinion, the majority fails even to consider the relationship between the duties of a Justice Department antitrust lawyer and the threat that lawyer could pose if drug-impaired. The omission may proceed from a recognition that the nexus inquiry requires invalidation of the testing program in this case. That much is clear from our decision in Harmon:
Certainly a blunder by a Justice Department lawyer may lead, through a chain of ensuing circumstances, to a threat to public safety. That sort of indirect risk, however, is wholly different from the risk posed by a worker who carries a gun or operates a train____ ... Von Raab and Skinner focused on the immediacy of the threat. The point was that a single slip-up by a gun-carrying agent or a train engineer may have irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before the harm occurs. Von Raab provides no basis for extending this principle to the Justice Department, where the chain of causation between misconduct and injury is considerably more attenuated.
878 F.2d at 491 (emphasis added; original emphasis omitted). Moreover, in Harmon, we explicitly declared that the requisite nexus does not exist with respect to Justice Department antitrust lawyers.
Nor can the majority’s omission of the nexus requirement be justified by distinguishing Willner’s status as an applicant from that of the incumbent employees in Harmon and Skinner.2 The Harmon court characterized the threshold nexus requirement as demanding a close relationship between “the employee’s duty and the nature of the feared violation.” Id. at 490. The aim of the instant testing program is not to prevent some drug-related harm that Willner might cause before he secures employment at the Justice Department. It is only after he is hired that his potential drug use could threaten any harm the De*1196partment as an employer has an interest in preventing. At that point, he is identical to the antitrust lawyers in Harmon who, according to this court, could not be constitutionally subjected to mandatory drug testing.
Taken to its logical end, the majority’s reasoning sanctions a blanket testing requirement for all federal job applicants. In Harmon, however, we held that “federal employment alone is not a sufficient predicate for mandatory urinalysis.” 878 F.2d at 490; see also National Fed’n of Fed. Employees v. Cheney, 884 F.2d 603, 613 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990). Accordingly, I would hold that simply applying for federal employment is too slim a reed to support mandatory drug testing.
II.
My disagreement with the majority does not end with its failure to make the nexus inquiry. It identifies two governmental interests that favor the drug testing program: the “interest in maintaining public confidence and trust,” maj. op. at 1192, and the high cost of hiring and training new employees. Maj. op. at 1192. The majority immediately acknowledges that this court has previously held the government’s interest in “promoting a public image of integrity” to be “insufficient” to overcome employee privacy interests. Maj. op. at 1192-1193. Indeed, in Harmon, this court categorically announced that, even in conjunction with other asserted governmental interests, “the government’s integrity interest cannot justify” a drug testing program covering all Justice Department lawyers who conduct grand jury proceedings or try criminal cases. Harmon, 878 F.2d at 490-91; see also id. at 498 (Silberman, J., concurring) (government’s “powerful interest in preventing drug use” does not justify testing all Justice Department lawyers). This leaves “economic reasons," maj. op. at 1192, as the sole interest on the government’s side of the scale.
I do not disagree with the majority that the government has a substantial interest in minimizing the expenses it incurs in the hiring and training of new Justice Department personnel. Nor do I dispute the majority’s position that this interest permits the government to “compile pertinent information about those who seek positions” with the Justice Department in order to avoid the documented pernicious effects of employee drug use. Maj. op. at 1192. We do part company, however, where the majority concludes that the need to evaluate a potential employee’s fitness justifies subjecting all applicants to the “needless indignity,” Von Raab, 109 S.Ct. at 1400-01 (Sca-lia, J., dissenting), of urine testing.3
In concluding that mandatory urinalysis provides the government with the necessary means to investigate an applicant’s fitness, the majority first considers in meticulous detail the sweep and effect of the FBI background investigation in relation to its impact on the applicant’s privacy interests. Characterizing the investigation as “extraordinarily intrusive,” maj. op. at 1191, and “thorough and exhaustive," maj. op. at 1190, the majority concludes that the background check, designed as it is to “uncover a vast array of information,” maj. op. at 1191, about an applicant, significantly diminishes the reasonable privacy expectations of anyone applying to the Justice Department. But the majority at one time both runs with the foxes and hunts with the hounds. For when it turns to the government’s interests supporting the test*1197ing program, the majority apparently concludes that the investigation it formerly found so complete now leaves the Justice Department with no insight whatsoever into an applicant’s fitness. The Department may use drug testing in its hiring process, we are told, because an applicant is “an outsider,” a “stranger,” someone whom the government “has had no opportunity to observe in the setting of the workplace.” Maj. op. at 1192, 1193.
Given this volte-face, one wonders which is the more accurate characterization of the FBI check: Is it “extraordinarily intrusive” and “thorough and exhaustive” or is it an inquiry that leaves its subject a “stranger?” From the majority’s description, see maj. op. at 1190-1191, the investigation seems much more the former than the latter. If that is so, the crucial question then is whether the marginally greater information that drug testing reveals about an applicant justifies the substantially increased intrusion on the applicant’s privacy. Cf. Delaware v. Prouse, 440 U.S. 648, 659-60, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660 (1979) (examining practice’s “incremental contribution” to safety to determine whether it “qualified] as a reasonable law enforcement practice under the Fourth Amendment”). I have no difficulty answering this question in the negative. It is true that the FBI check does not conclusively establish that the applicant uses no illegal drugs; but even urinalysis cannot always do this. See Von Raab, 109 S.Ct. at 1396. The investigation does, however, make available to the Justice Department significant information from which it can evaluate the applicant’s fitness and likely drug use.
Chief among this information is what the FBI learns from an applicant’s former employers and co-workers. During the application process, an applicant must disclose all jobs he has held for the past fifteen years and he must permit government officials to request of his former employers information relating to his “achievement, performance, attendance, personal history, [and] disciplinary ... history.” Questionnaire for Sensitive Positions, Standard Form 86. The FBI also questions an applicant’s present and former co-workers. Joint Appendix at 230. It ignores the nature of this inquiry to conclude, as the majority does, that the extensive information obtained provides no basis whatsoever to evaluate a prospective employee’s likely drug use. The information the government receives from former employers and coworkers regarding the applicant’s past professional conduct and work product is precisely the sort that will shed the most light on an applicant’s tendency toward illegal drug use.
Furthermore, as a Justice Department antitrust lawyer, Willner will not be in a position analogous to those of the Customs Service field agents who the Von Raab Court held could be tested. There, the Court concluded that a mandatory urinalysis program complied with the fourth amendment in part because of the difficulty of monitoring an individual’s fitness by subjecting his “work-product to the kind of day-to-day scrutiny that is the norm in more traditional office environments.” 109 S.Ct. at 1395. Here, by contrast, Willner has accumulated and revealed to the government an extensive history of performance in traditional office environments.4 By the time he sought employment with the Justice Department, Willner had completed law school, two year-long federal appellate clerkships and over four years’ practice at a large law firm. He had worked in just the sort of “traditional office environments” that the Von Raab Court noted allow a performance evaluation that may render mandatory drug testing an unreasonable search under the fourth amendment. Indeed, this court has *1198recently stressed the significance of an office setting “in which drug use is, presumably, more easily detected by means other than urine testing.” Harmon, 878 F.2d at 489. In light of the government’s ability to gauge Willner’s professional performance through its “exhaustive” background investigation and Willner’s established work record, the majority seems to wink at reality when it concludes that the government’s need for information weighs heavily in favor of mandatory pre-employment testing.
III.
In analyzing the applicant’s reasonable expectations of privacy, I believe the majority also errs in the weight and effect it gives two different factors. First is that, as an applicant with notice of the testing requirement, he triggers the process himself. This factor, while relevant, see National Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935, 943 (D.C.Cir.1987), does not merit the weight the majority gives it in concluding that an applicant’s reasonable expectations of privacy are “significantly diminished.” Maj. op. at 1193. The same factor was present in Von Raab,5 but the Court there attributed little, if any, significance to it, merely identifying it in a footnote, without elaboration, as affecting the employees’ privacy expectations. See Von Raab, 109 S.Ct. at 1394 n. 2; see also Harmon, 878 F.2d at 489. As discussed above, the Von Raab decision turned on the efficacy of urinalysis in preventing particular harms, not on the privacy implications of advance warning of the testing requirement. Accordingly, the majority’s focus on the notice aspects of the challenged program inappropriately departs from the course of previous balancing tests in similar contexts.
More significantly, I fear that the majority’s consideration of private industry drug-testing practices as part of its constitutional analysis is both improper and potentially dangerous. It is beyond question that mandatory urinalysis, both of applicants and incumbent employees, is common in private industry. Nevertheless, private employers’ practices cannot, and until today have not, become the yardstick by which we measure the government’s compliance with constitutional mandates. The government is unique in being subject to the dictates of the Constitution; private entities are bound by no such strictures. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (fourth amendment “is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government”) (internal quotation omitted); see also Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). It is therefore wholly inappropriate for the majority to import into a fourth amendment analysis consideration of private sector practice.6
The phenomenon of private industry’s employee drug testing is not something *1199that has occurred so recently that this court is the first to have the opportunity to consider its fourth amendment implications. Similar conditions existed at the time Von Raab and Skinner were decided, as well as when we faced the issue in Harmon. See Bureau of Labor Statistics, U.S. Department of Labor, Survey of Employer Anti-drug Programs, Report 760, at 6 (Jan. 1989). In spite of the prevalence of mandatory urinalysis for private employees, however, neither this court nor the Supreme Court relied on the practice to justify such a government program. The reasons for this omission seemed obvious before today. The protections the Constitution provides against arbitrary government action will quickly evaporate if courts adopt, as the benchmark of fourth amendment reasonableness, the conduct of private entities.
IV.
I find myself unable to join in the majority’s opinion today. In conducting its bal-ancmg test, the majority dispenses with the requirement that the testing be reasonably calculated to avert some harm that a drug-impaired employee is likely to cause and it ignores the importance that its own opinion elsewhere attributes to the background check the FBI conducts on prospective employees. The majority attributes greater significance than ever before to the facts that an individual has notice of the testing requirement and that he triggers it himself by applying for employment. Most alarming, the majority inserts into the fourth amendment calculus the new element of private industry norms.
As the majority notes, the balancing test to be conducted under Von Raab is “imprecise,” maj. op. at 1187, and “[rjather than considering a factor separately to determine if it alone would be decisive, [the court] must aggregate the factors on each side in order to strike the balance.” Maj. op. at 1190. The approach adopted by the majority, however, puts the scales in per*1200manent tilt. For this reason, I respectfully dissent.
. We later followed the Harmon analysis in Hartness v. Bush, 919 F.2d at 173, where we upheld a program in the Executive Office of the President requiring testing of all employees with secret (as opposed to top secret) security clearances.
. Although there may be differences between employees and applicants that are significant to the fourth amendment analysis, they affect privacy expectations and not the link required between an employee’s duties and the dangers posed by his drug use. See infra, Part III; see also Harmon, 878 F.2d at 489 n. 6 (losing job is greater hardship than failing to obtain job; mandatory drug testing may therefore be more intrusive when result of individual’s refusal to submit to testing is discharge rather than merely missing job opportunity).
. The fate of an applicant whose test is positive leaves open to some doubt the extent to which the Department’s program effectively reduces its recruiting and training expenses. An applicant who has tested positive may reapply after six months and, if he then tests negative, may presumably be hired. Maj. op. at 1187. Thus, the Justice Department appears willing to employ individuals of whose drug use it has conclusive evidence if they can pass the drug test a second (or, theoretically, third or fourth) time. The factor that qualifies an applicant for employment, then, appears to be not what past experience reveals about the likelihood that he will use illegal drugs but rather his ability to once test negative. This consideration makes the Department’s program appear to be less a means to screen out applicants likely to use illegal drugs and more an "immolation of privacy and human dignity in symbolic opposition to drug use.” Von Raab, 109 S.Ct. at 1398 (Scalia, J., dissenting).
. Lawyers apply to the Department of Justice in two different ways. The first group of applicants is composed of individuals, like Willner, who have gained professional experience after law school. Joint Appendix at 208. The Department also hires new lawyers through its Honor Program, "a highly competitive program in which applicants are selected from among the most outstanding recent law school graduates and judicial law clerks.” Declaration of Thomas King, Joint Appendix at 199. Willner falls into the first group of applicants — that composed of individuals who have gained professional experience.
. In Von Raab, only an employee who applied for transfer or promotion was subject to the testing program and the employee knew in advance of the urinalysis requirement. Von Raab, 109 S.Ct. at 1388. An individual who refused to submit to testing lost only the opportunity for a promotion; he did not risk losing a job. National Treasury Employees Union v. Von Raab, 816 F.2d 170, 173 (5th Cir.1987). He was therefore in a position identical to Willner's: by refusing to undergo testing, he did not lose anything he already had, but merely forewent an opportunity for advancement. Cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-83, 106 S.Ct. 1842, 1851, 90 L.Ed.2d 260 (1986) (plurality opinion) ("Denial of a future employment opportunity is not as intrusive as loss of an existing job”); maj. op. at 1190. The Court did not, however, treat this as a distinction that diminished the individual's expectations of privacy.
. While admittedly not conclusive, I find it significant that before today, the Supreme Court and other courts, including this one, have not considered the impact of private sector activity on an individual’s reasonable expectations of privacy. This is true throughout the line of decisions leading up to Skinner and Von Raab. In Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed.2d 930 (1967), the Court applied the fourth amendment to a municipality’s housing code inspection program. Nowhere did the Court consider the effect on a resident's privacy expectations of the fact that landlords might retain the right to enter and inspect their tenants’ homes. In New Jersey v. T. L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d *1199720 (1985), the Court first held that the fourth amendment restricted the actions of a public school official in his search of a student’s purse. Id. at 333-34, 105 S.Ct. at 738. It then balanced the "individual’s legitimate expectations of privacy and personal security” against the "government’s need for effective methods to deal with breaches of the public order.” Id. at 337, 105 S.Ct. at 740. In its analysis, the Court did not consider whether private school officials, who are unfettered by the fourth amendment, subject their students to searches. In O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), the plurality opinion omitted any examination of private industry conditions in analyzing the privacy expectations of an individual challenging a government employer’s search of his office. See also Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991) (considering reasonableness of FAA-mandated urinalysis for airline employees, the court ignored impact on privacy expectations of airlines’ privately implemented testing programs although such programs existed).
Neither of the decisions the majority relies on is to the contrary. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court held that the government could not electronically eavesdrop on an individual’s conversation from a public phone booth because it violated his reasonable expectations of privacy. In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the Court held that an individual has no reasonable expecta-dón of privacy in garbage left outside the curti-lage of his property because "[wjhat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Id. at 41, 108 S.Ct. at 1629 (quoting Katz, 389 U.S. at 351, 88 S.Ct. at 511). By deliberately placing their garbage where it was readily accessible to members of the public, the Court held, the Greenwood respondents had relinquished their expectations of privacy with respect to it. Id. at 40-41, 108 S.Ct. at 1628-29. By applying to the Justice Department, Willner has not relinquished his privacy expectations regarding the significantly more intrusive search here.
In order to come within the fourth amendment’s protection, an individual's expectation of privacy must be "one that society is prepared to recognize as ‘reasonable.’ ’’ Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). Contrary to the majority’s reasoning, however, in order to be reasonable, this expectation of privacy does not have to be one that society recognizes between an individual and his private employer. Were there such a requirement, the court’s task would be easy indeed since we would be constrained to permit the government to invade the privacy of its employees in the various ways available to a private employer. Until today, however, the fourth amendment has been construed to hold the government — even when acting as an employer — to a higher standard.