concurring.
I join fully in the majority opinion. I write separately only to comment on what I view as the salutary but potentially far-reaching effect our decision today has on the substantial evidence rule of administrative law, as that rule is applied in Oregon.
The Oregon Administrative Procedures Act (APA) provides, in pertinent part:
“The court shall set aside or remand the order [under judicial review] if it finds that the order is not supported by substantial evidence in the record” ORS 183.482(8)(c). (Emphasis supplied.)
The meaning of the emphasized phrase has long been a point of contention for practitioners of administrative law: How much evidence is “substantial” evidence? Is evidence substantial if, viewed in isolation, it is such that a reasonable person might rely upon it? Or must evidence, to be “substantial,” retain its probative value when viewed in the light of all the other evidence in a particular record?
Such comments as have appeared in the reports have *103suggested that the first — or, as it is called, the “any evidence” view — is the law of Oregon. In Von Weidlein/N. W. Bottling v. OLCC, 16 Or App 81, 101, 514 P2d 560, 515 P2d 936, 517 P2d 295 (1973), rev den (1974), we said,
“[Petitioner maintains that a certain finding of fact is not supported by substantial evidence.] There was a direct conflict in the testimony on this point. * * * Where there is such a conflict of evidence, there is necessarily substantial evidence to support the commission’s finding.” (Emphasis supplied.)
If a mere conflict made either contention “substantial,” one could fairly ask: What would be lost if there were no conflict?
Later, in Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or App 561, 567, 666 P2d 276 (1983), we explained our willingness to award attorney fees to private parties who succeed in overturning, on grounds of lack of substantial evidence, agency decisions:
“The second reason for awarding fees in cases of this type is the undemanding nature of the substantial evidence test. In Cook v. Employment Division, 47 Or App 437, 614 P2d 1193 (1981), we explained the substantial evidence standard:
‘* * * Substantial evidence is “any reasonable evidence or such proof as a reasonable mind would employ to support a conclusion.” ’ (Citation omitted.) (Emphasis supplied.) 47 Or App at 441.”
Again, we implied — but did not hold — that evidence viewed in isolation could be “substantial.”
However, in referring in Van Gordon to the “undemanding nature of the substantial evidence test,” the key word was “test,” not “undemanding.” Not all evidence is “substantial”; if it were, no test would be required. It follows that some minimal weighing or balancing is involved in testing evidence for substantiality. Today’s opinion makes it clear, I think, that the pertinent methodology is that enunciated by the United States Supreme Court in Universal Camera Corp. v. National Labor Rel. Bd., 340 US 474, 487, 71 S Ct 456, 95 L Ed 2d 456 (1951):
“Whether or not it was ever permissible for courts to determine the substantiality of evidence * * * merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from *104which conflicting inferences could be drawn, * * * new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” (Emphasis supplied.)
This famous statement of Justice Frankfurter’s I now understand to reflect not only the way the federal APA and TaftHartley Acts are to be read, but the Oregon view of the substantial evidence test, as well. Today’s decision is the methodology in action. One need look no further to see all the necessary justification for the Universal Camera approach.1
I concur.
The 1985 Legislative Assembly enacted a law which appears to adopt the Universal Camera standard by statute. It amends ORS 183.482(8)(c) and ORS 183.484(4) (c) by adding the following language: “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” Or Laws 1985, ch 757, §§ 3, 4.