concurring:
I concur in the Court’s opinion and write separately to consider the standard of review applicable to appellate consideration of a district court’s determination of the relevance of information sought by an administrative subpoena.
Preliminarily I note that with respect to review of the ultimate decision of a district court whether to enforce an administrative subpoena, it is generally said that the standard for appellate review is abuse of discretion. See, e.g., Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 168 (2d Cir.2003); FTC v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C.Cir.2002); FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir.1995); NLRB v. Carolina Food Processors, 81 F.3d 507, 510 (4th Cir.1996) (quoting NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir.1982)). A Sixth Circuit opinion has said that the appellate task is “to weigh the likely relevance of the requested material to the investigation against the burden to Ford of producing the material.” EEOC v. Ford Motor Credit Corp., 26 F.3d 44, 47 (6th Cir.1994). However, the Ninth Circuit has stated that it reviews a district court’s order to enforce an EEOC administrative subpoena de novo, see EEOC v. *141Federal Express Corp., 558 F.3d 842, 846 (9th Cir.2009).
With respect to review of a district court’s determination of whether the information sought by an administrative subpoena is relevant, the case law has developed in different and not entirely satisfactory ways. One line of cases says that a district court’s determination of relevance is a finding of fact reviewed for clear error. The notion that relevance in this context is “factual” crept into the case law without much thought. The first assertion of that “fact” proposition that I have found is in footnote 14 in FTC v. Lonning, 539 F.2d 202, 208 n. 14 (D.C.Cir. 1976). No authority was cited. The D.C. Circuit then promoted the proposition into text in FTC v. Anderson, 631 F.2d 741, 746 (D.C.Cir.1979), citing only footnote 14 in Lonning. Then Anderson was relied on in FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C.Cir.1992), and Invention Submission was relied on in Resolution Trust Corp. v. Walde, 18 F.3d 943, 946-47 (D.C.Cir.1994).
The “fact” proposition then entered our case law when we cited Walde (and its quote from Invention Submission) in In re McVane, 44 F.3d 1127, 1135 (2d Cir.1993) (“[I]f the district court concludes that the information sought by the agency is relevant, we will affirm unless that determination is clearly erroneous.”). More recently, we adhered to the “fact” proposition in NLRB v. American Medical Response, Inc., 438 F.3d 188, 193 (2d Cir.2006), citing McVane.
Our adherence to the “fact” proposition in American Medical Response is problematic. We said:
The district court defers to the agency’s appraisal of relevancy, which must be accepted so long as it is not clearly wrong, and, in turn, we affirm a district court’s finding of relevancy unless that determination is clearly erroneous.
American Medical Response, 438 F.3d at 193 (internal quotation marks and citation omitted). Since the district court is obliged to use the lenient standard of deference to an agency’s determination of relevance that is not clearly wrong, it would seem to be an error of law, to be reviewed de novo, for a district court to fail to abide by its obligation to apply that standard of deference.1
Two circuits have adhered to the “fact” proposition independent of the chain of authority that originated in the D.C. Circuit. In both instances, the basis for such adherence is also problematic. In EEOC v. Packard Electric Division, General Motors Corp., 569 F.2d 315, 318 (5th Cir.1978), the Fifth Circuit said, “Since the question of relevance in this instance is essentially a factual determination concerning the interrelation or lack thereof of different groups of facts, we must uphold the district court’s determination unless it is clearly erroneous.” Id. Presumably the “facts” the Court had in mind were the agency’s authorized investigative purposes and the range of information sought. “Relevance [in the enforcement of an EEOC subpoena] is determined in terms of the investigation rather than in terms of evidentiary relevance.” Federal Express, *142558 F.3d at 854. But determining the proper relationship between such facts involves application of a legal standard, not a finding of fact.
Interestingly, the D.C. Circuit, the originator of the “fact” proposition, has backed away from the notion that “clearly erroneous” is the standard for appellate review of a district court’s relevance ruling. In Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304 (D.C.Cir.1997), the Court stated, “If the dispute turns on the relevance of the information sought by a government agency, we have said that the district court should not reject the agency’s position unless it is ‘obviously wrong,’ and that the burden, as a practical matter, is on the defendant to meet that test.” Id. at 1307 (emphasis in original). The D.C. Circuit then added this revealing footnote:
We have said that a district court’s determination of relevance is reviewable by us under the clearly erroneous test, FTC v. Anderson, 631 F.2d 741, 746 (D.C.Cir.1979) (quoting FTC v. Lonning, 539 F.2d 202, 210 n. 14 (D.C.Cir.1976)). Applying a deferential standard on appellate review does not mean that the district court has authority to determine relevance in the first instance. To the contrary, we apply that standard in light of the great deference the district court owes the agency.
Id. at 1307 n. 3.
Other circuits have shown no reluctance to reverse a district court that had considered an administrative subpoena beyond the scope of the agency’s authority, and
have done so without any hint that they regarded relevance as an issue of fact to be reviewed for clear error. See United States v. Newport News Shipbuilding & Dry Dock Co., 862 F.2d 464, 471 (4th Cir. 1988) (“The district court took too restrictive a view of [Defense Contract Audit Agencyj’s access to defense contractor records.”); United States v. O’Neill, 619 F.2d 222, 228 (3d Cir.1980) (“It appears the trial court gave too little weight to the needs of the [United States Civil Rights] Commission.”);2 Adams v. FTC, 296 F.2d 861, 868 (8th Cir.1961) (“[T]he documents called for are reasonably relevant.”).
I recognize that the issue of relevance of information sought by an administrative subpoena might comprehend factual issues. Determining what information is sought and what investigative purposes an agency is pursuing might well be matters of fact. “A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous.” EEOC v. United Air Lines, 287 F.3d 643, 649 (7th Cir.2002) (emphasis added). But once those factual matters are resolved (or are undisputed), the determination of whether the information sought bears a sufficient relationship to the investigative purposes to permit enforcement of the subpoena is predominantly a matter of law, requiring adherence to the standard of affording deference to the agency. The relevance requirement is to be “generously construed” and “is not especially constraining.” EEOC v. Shell Oil Corp., 466 U.S. 54, 68, 104 S.Ct. 1621, 80 *143L.Ed.2d 41 (1984). In rare cases, the relationship might be so attenuated that a district court, or an appellate court reviewing a district court’s enforcement order, might properly rule that the broad scope accorded an agency has been exceeded. And when, as in this case, a district court fails to accord appropriate scope to an agency’s legitimate demands for information, an appellate court is entitled to rale that the district court has committed an error of law.
I therefore join the Court’s opinion, which reverses the District Court’s denial of enforcement because that Court “applied too restrictive a standard of relevance.” That conclusion properly regards relevance, in this context, as a matter of law.
. I have considered and rejected the possibility that the standard of appellate review of a district court’s determination of relevance should be “clearly erroneous” review when the enforcement is granted and de novo when it is denied. Standards of review generally do not vary depending on the outcome in a district court. But see In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.2006) (“We are 'noticeably less deferential when the district court has denied class status than when it has certified a class.’ ”) (quoting Parker v. Time Warner Entertainment Co., 331 F.3d 13, 18 (2d Cir.2003)).
. A year later, the Third Circuit, affirming a district court order enforcing an .administrative subpoena, stated that the district court’s three findings that the information sought was relevant, not already within the agency’s possession, and requested pursuant to agency procedure were not clearly erroneous. EEOC v. University of Pittsburgh, 643 F.2d 983 (3d Cir.1981). Reliance was placed on Denicola v. G.C. Murphy Co., 562 F.2d 889, 892 (3d Cir.1977), which had stated the unexceptional proposition that factual findings in Title VII cases are reviewed for clear error.