concurring:
I write separately because I think this case more deeply implicates First Amendment rights than my colleagues acknowledge. Indeed, as recently as May of 1987, the State Department itself thought the PIO’s activities constitutionally protected:
The continued existence of the PLO Information Office [sic] in Washington neither reflects nor requires the approval of the United States Government. The PLO Information Office is registered under the Foreign Agents Registration Act of 1938, as amended, with the Department of Justice and is subject to the provisions of that legislation. The Department of Justice has informed us that so long as that office regularly files reports with the Department of Justice on its activities as an agent of a foreign organization, complies with all other relevant U.S. laws, and is staffed by Americans or legal resident aliens, it is entitled to operate under the protection provided by the First Amendment of the Constitution.
Letter from James A. McVerry, Office of Jordan, Lebanon, and Syrian Affairs, to Robert Clark, Director of Government Affairs of the National Association of Arab-Americans (May 13, 1987).
I cannot agree with the majority that “the State Department’s order places only an incidental restriction upon appellants’ speech.” Maj. op. at 939; see also id. at 944-945. The State Department’s order requires them to discontinue use and dispose of the following goods and services: Services
(1) Public utilities and services, including telephone and telegraph, mail, public transportation and sanitation services; and
(2) Personal services of individuals engaged within the United States for whatever purpose, whether on a temporary or regular basis. Such personal services include:
(a) Services relating to public relations, information, publishing, printing, advertising, distribution of literature, or mailing;
(b) Plumbing, electrical, construction, maintenance, engineering, architectural or related services;
(c) Packing, shipping, cartage and related services, including provision of packing materials; and
(d) Financial services.
Goods
(1) Motor vehicles;
(2) Construction equipment and materials;
(3) Equipment and materials for the maintenance of the mission, including typewriters, telephones, xerox machines and related materials;
(4) Computers and automated data processing equipment; and
(5) Furnishings for offices.
52 Fed.Reg. 37,035 (1987).
Surely it cannot be suggested that depriving appellants of all those means of communication only negligibly interferes with their speech. Restrictions on the par*946aphernalia by which speech is disseminated fundamentally implicate the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 634, 46 L.Ed.2d 659 (1976); see also City of Lakewood v. Plain Dealer Publishing Co., — U.S. -, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (4-3); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). The majority appears to mean that appellants may freely utilize all those means of communication so long as they do not act as a “foreign mission.” Of course, no foreign government or entity has a First Amendment right to be represented diplomatically in the United States, see Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 95-96, 81 S.Ct. 1357, 1409-10, 6 L.Ed.2d 625 (1961); cf. Principality of Monaco v. Mississippi, 292 U.S. 313, 330, 54 S.Ct. 745, 751, 78 L.Ed. 1282 (1934) (“[A] foreign State lies outside the structure of the Union.”), but appellants deny they are a “foreign mission.” The State Department clearly could not interfere with appellants’ ability to communicate unless it justifiably concluded that appellants’ activities were those of a foreign mission. The majority’s constitutional analysis, it seems to me, assumes the conclusion: “We are unable to find a free association [or presumably free speech] right of Rahman and his co-workers to represent the PLO as a foreign mission in the United States.” Maj. op. at 941. That is hardly the question; it is rather, has the State Department, by construing the statute — which admittedly gives the Department great discretion in defining its terms — acted consistently with the Constitution?
Nor do I think United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), is directly relevant to our analysis. The majority asserts, but does not explain how, the PIO’s activities mix conduct and speech and that the Government’s interest is in the regulation of the conduct rather than the speech. As I see the case, it is exactly the speech that the Government seeks to regulate, indeed repress, so long as that speech is sponsored by a foreign entity, the PLO, and can be thought to be uttered by the PLO’s agent. The State Department has explicitly disavowed reliance on any criminal or terroristic acts by those staffing the PIO, and does not allege the PIO has engaged in any behavior other than its stated purpose of disseminating information. Unlike the Communist Party case, there is here no finding that the “operation to advance the objectives” of a foreign organization “includes extensive, long-standing organizational, as well as ‘speech,’ activity.” 367 U.S. at 90, 81 S.Ct. at 1407; see also Buckley, 424 U.S. at 16, 96 S.Ct. at 633 (“O’Brien was not a case ‘where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.’ ” (quoting O’Brien, 391 U.S. at 382, 88 S.Ct. at 1682)). Indeed, the Department’s order and the district court relied in part on the context of appellants’ speech to conclude they constituted a foreign mission. See Palestine Information Office v. Shultz, 674 F.Supp. 910, 917 (D.D.C.1987). The Government has abandoned that position on appeal, but it nonetheless seems untenable to me to claim the Government’s efforts here are directed at conduct separate and apart from speech. The Government essentially claims statutory authority to regulate not the speaker’s conduct but his status.
In short, since this is not a mixed speech/conduct case, O’Brien does not govern. In some respects the case is easier because the Government has the constitutional authority — depending on whether the PIO is a foreign mission — to ban the speech directly. But, in other respects, the case is more difficult since it cannot, in my judgment, be analyzed as a Government effort to regulate conduct apart from speech. Because the Government’s constitutional authority to take the action it has taken, to apply the statute as it has, depends on appellants’ status, we must be exceedingly careful to ensure that the Government’s determination of the PIO’s status is defensible. Americans, drawn from so many nations, often speak in a *947fashion others, and perhaps the Government, perceive as advancing the interests of or “representing” a foreign entity. The State Department cannot, drawing upon the Foreign Missions Act, squelch or interfere with that speech simply by designating the speaker a “foreign mission.” The Constitution, then, requires that a court carefully analyze the basis of the Department’s determination notwithstanding the unusual discretion Congress delegated to the Department to define the statute’s terms. See 22 U.S.C. §§ 4302(b), 4308(g). That is particularly true here where the Department’s order simply repeats the statutory language without analysis or reasoning, and the Department refuses to advise appellants as to how they can arrange their affairs to avoid being characterized as a “foreign mission.” The Department, to be sure, has no duty to provide appellants legal advice, but its guarded approach, insofar as it chills appellants’ participation in protected activity, obviously risks extending the Department’s de facto authority beyond constitutional limits. The Department’s designation order states only:
Designation of the Palestine Information Office as a foreign mission is based on the following:
—It is an entity.
—It is substantially owned and/or effectively controlled by the PLO.
—The PIO conducts its functions on behalf of an organization which has received privileges and immunities under U.S. law. The PLO is accorded certain privileges and immunities by virtue of its status as an observer to the United Nations. Further, the PLO clearly engages in “some aspect of the conduct of international affairs,” as evidenced by, for example, its membership in the League of Arab States and its status at the United Nations.
—It is involved in “other activities.” The PIO registration statement under the Foreign Agents Registration Act indicates that the PIO engages in political activity and political propaganda on behalf of the PLO.
52 Fed.Reg. 37,035 (1987). As I have noted, the State Department has abandoned its reliance on the PIO’s “other activities” (the statutory alternative to the “substantially owned or effectively controlled” test). To support its position under the statute, then, the Government must establish the PIO is an entity substantially owned or effectively controlled by an organization granted official privileges and immunities under United States law or which engages in the conduct of international affairs. I quite agree with the majority’s treatment of appellants’ argument that the PIO is not an entity within the meaning of the Act (as well as its disposal of the contention that the State Department erred by failing to allege the PLO is an organization “representing a territory or political entity”). Maj. op. at 937-938. And because there is no dispute the PLO is accorded official privileges and immunities under United States law, the only issue left for discussion is the vigorously disputed conclusion that the PIO is substantially owned or effectively controlled by the PLO.
The Government relies on four factors to substantiate its determination.
(1) that PIO Director Rahman periodically consults the PLO directly on matters of importance in the Middle East;
(2) that the PIO’s funding comes directly or indirectly from the PLO;
(3) that the PIO is a registered agent of the PLO; and
(4) that the PIO represents no one else in the United States (thus serving to distinguish the PIO from scores of lobbyists for foreign governments in Washington).
In order to avoid a holding arguably allowing the State Department to deem a foreign mission whatever entity is politically unpopular, our review of the Department’s determination of ownership or control must be searching and precise. Although the Department’s order is concluso-ry, without sufficient reasoning to give much guidance to appellants or others who wish to avoid the consequences of designation as a foreign mission, under the statute no civil or criminal penalty can be imposed upon appellants in the event they order *948their affairs differently and attempt to resume operations.1 Under these circumstances (and only because of these circumstances) I think the Department’s terse determination suffices and is adequately supported by some of the information upon which it based its decision. It is not apparent that the PLO “owns” the PIO (registered agent status and regular consultations do not seem to bear on ownership), but the undisputed facts upon which the State Department relied do satisfy the control test. Especially in the foreign affairs arena, where relationships may take a great variety of forms beyond those we know from corporations law, determination of control “is largely a matter of the working out of legislative policy in multiform situations of potentially great variety.” Communist Party, 367 U.S. at 40, 81 S.Ct. at 1381. The PIO acknowledges that it represents the PLO (as a registered agent). Granted, not all registered agents are controlled by their principals, but substantial funding from the PLO, the absence of work for any other principal, and repeated consultation with PLO officials regarding their views on Middle East concerns support the inference that the PLO calls the shots and the actions of the PIO are not simply the result of appellants’ independent but sympathetic convictions. And reliance on these factors requires neither analysis of the message the PIO seeks to broadcast in the United States nor examination of communications between principal and agent.
If an entity is primarily funded by a foreign organization,2 represents that organization (as opposed to operating as an independent grantee of the funds), and represents no one else, I think the Department would be quite justified in any case in concluding that entity is effectively controlled by that organization and can thus be characterized as a foreign mission.
I therefore concur in the majority’s judgment.
. As I understand it, the enforcement provision of the Act, making it unlawful to provide benefits to a foreign mission contrary to the statute, 22 U.S.C. § 4311, does not erect a barrier to speech by a newly formed or reorganized entity. A supplier of goods or services would presumably be subject to this prohibition only in dealing with an entity already declared a foreign mission, and the section’s provision for consultation with the Department by a supplier helps to ensure that entities not (or not yet) designated foreign missions are not affected.
That is not to ignore the costs, delay, or inconvenience in shutting down the shop and then reorganizing to resume operations. Indeed, these costs underscore my conclusion that the Department’s order more than incidentally affects speech.
. As the majority notes at 935, Rahman's salary is paid by the League of Arab States, of which the PLO is a member, with the remainder of the PIO’s funding coming from the Palestine National Fund. We owe considerable deference to the State Department’s determination that funding for a venture actually came from a particular overseas source. See Harisiades v. Shaughnessy, 342 U.S. 580, 589-90, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952).