WI Proj Nuc Arms v. COMM

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2002 Decided January 31, 2003

No. 01-5356

Wisconsin Project on Nuclear Arms Control,
Appellant

v.

United States Department of Commerce,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv02673)

Scott L. Nelson argued the cause for appellant. With him
on the briefs was David C. Vladeck. Alan B. Morrison
entered an appearance.

Steve Frank, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and Leonard Schaitman, Attor-
ney.

 Eric L. Hirschhorn, Anne W. Stukes, Janice S. Amundson,
and Quentin Riegel were on the brief for amici curiae
Industry Coalition on Technology Transfer, et al., in support
of appellee.

Before: Randolph and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Randolph.

Rogers, Circuit Judge: The principal question on appeal is
whether Exemption 3 of the Freedom of Information Act
("FOIA"), 5 U.S.C. s 552(b)(3) (2000), permits the Depart-
ment of Commerce to withhold from public disclosure infor-
mation contained in export license applications. This deter-
mination requires the court to address the nature of the
reference in FOIA Exemption 3 to statutes allowing docu-
ments to be withheld. Under the Export Administration Act,
50 U.S.C. app. ss 2401-20 (2000), which from time to time
has been enacted as temporary legislation, manufacturers of
dual-use commodities -- that is, products that can be used for
both military and civilian purposes -- must obtain a license
from the Department before they may export their products.
The Wisconsin Project on Nuclear Arms Control ("the Wis-
consin Project") requested access under FOIA to these ex-
port license applications. The Department responded by
providing aggregate data while declining, under Exemption 3,
to supply much of the requested specific export data. In
light of the unique statutory framework created by Congress
to retain the confidentiality of export data, we affirm the
grant of summary judgment to the Department.

I.

The Export Administration Act ("EAA") authorizes the
Department of Commerce to establish a regulatory scheme
governing the export of dual-use items. 50 U.S.C. app.

ss 2401-20. The Department accordingly promulgated the
Export Administration Regulations ("export regulations"),
which set forth exporters' obligations and specify the types of
products that are subject to the EAA's requirements. 15
C.F.R. ss 730-74 (2002). Section 12(c) of the EAA provides
that "information obtained for the purpose of consideration of,
or concerning, license applications under this Act shall be
withheld from public disclosure unless the release of such
information is determined by the Secretary [of Commerce] to
be in the national interest." 50 U.S.C. app. s 2411(c). The
Department has incorporated this confidentiality provision
into the export regulations. 15 C.F.R. pt. 736, supp. 2 (2002).

Congress originally enacted the export control system as
part of the Export Control Act of 1949, Pub. L. 81-11, s 6(c),
63 Stat. 7, 8-9, and subsequently replaced it with the Export
Administration Act of 1969, Pub. L. 91-184, s 7(c), 83 Stat.
841, 845. Congress has enacted each version of the statute as
a temporary measure, explaining that "such important regula-
tory legislation should be periodically reviewed." H.R. Rep.
No. 95-459, at 13 (1977). From time to time, however,
Congress has amended the EAA to reinstate its provisions
and on each occasion has included a sunset provision specify-
ing the date on which the EAA will expire. 50 U.S.C. app.
s 2419 (2000). The current version of the statute -- the
EAA of 1979 -- has lapsed six times, for periods ranging
from as short as five days to as long as six years. Each time
the EAA has expired, the President has promptly declared a
national emergency and has extended the regulatory scheme
by executive order. See, e.g., Exec. Order No. 13,222, 3
C.F.R. 783 (2002); Exec. Order No. 12,867, 3 C.F.R. 649
(1994); Exec. Order No. 12,730, 3 C.F.R. 305 (1991); Exec.
Order No. 12,470, 3 C.F.R. 168 (1985); Exec. Order No.
12,444, 3 C.F.R. 214 (1984); Exec. Order No. 11,940, 3 C.F.R.
150 (1977).

Originally the President relied on a provision in the Trad-
ing with the Enemy Act ("TWEA"), 50 U.S.C. app. s 5(b)
(2000), for authorization to continue the export control system
during lapses in the EAA. In 1977, however, Congress
reformed the TWEA by enacting the International Emergen-

cy Economic Powers Act ("IEEPA") and provided that the
President, upon declaration of a national emergency, may
"regulate ... prevent or prohibit ... importation or exporta-
tion of ... any property in which any foreign country or a
national thereof has any interest ... by any person, or with
respect to any property, subject to the jurisdiction of the
United States." 50 U.S.C. s 1702(a)(1) (2000). In enacting
IEEPA, Congress reaffirmed the President's regulatory con-
trol over exports by broadening the scope of the EAA to
include regulation of extraterritorial exports. Pub. L. No.
95-223, s 301, 91 Stat. 1625, 1629 (codified as amended at 50
U.S.C. app. ss 2402-03 (2000)). IEEPA's legislative history,
moreover, indicates that Congress intended the President to
use his authority under IEEPA "to continue the Export
Administration Regulations in effect" should a "lapse" occur
in the EAA. H.R. Rep. No. 95-459, at 13 (1977). (No
Conference Report exists, and the Senate Report is silent on
this point.)

The EAA of 1979 expired by its terms in 1994, and the
President, pursuant to IEEPA, again extended the export
controls by Executive Order. The President declared that
the EAA's expiration posed "an unusual and extraordinary
threat to the national security, foreign policy, and economy of
the United States" and constituted a national emergency.
Exec. Order No. 12,924, 59 Fed. Reg. 43,437 (Aug. 19, 1994),
reprinted in 50 U.S.C. s 1701 (2000). The President ordered
that the EAA's provisions "be carried out under this order so
as to continue in full force and effect...." Id.

On July 27, 1999, during the period when the EAA had
lapsed, the Wisconsin Project submitted a request under
FOIA to the Department for "records of all license applica-
tions for dual-use commodities that the U.S. Department of
Commerce approved, denied, suspended, or returned without
action, for export to the People's Republic of China (including
Hong Kong), India, Israel, Pakistan, and Russia, for the
period beginning January 1, 1995 and extending to the pres-
ent." The request stated that it included "information show-
ing the federal agencies to which each license application was

referred for review, ... each agency's recommendation on
the application referred, ... the applicant, the case number,
the date received, the final date, the consignee-end user, the
[Export Control Classification Number], the value and the
statement of end use." The Department responded by letter
dated August 24, 1999, turning over reports showing aggre-
gate data for the specified countries while stating that the
more detailed information was exempt from disclosure under
FOIA Exemption 3.

After exhausting its administrative remedies, the Wisconsin
Project sued in the district court for release of the detailed
export information. While the lawsuit was pending, Congress
reenacted the EAA, extending its expiration date from Au-
gust 20, 1994, to August 20, 2001. Pub. L. 106-508, 114 Stat.
2360 (2000) (codified at 50 U.S.C. app. s 2419). Before the
district court ruled on the Department's motion for summary
judgment, the August 2001 expiration date passed, and the
President once more extended the EAA's export controls by
Executive Order. Exec. Order No. 13,222, 3 C.F.R. 783
(2002). The district court granted the Department's motion
on September 4, 2001. Citing statements by Members of
Congress and the President, the district court concluded that
Congress's amendment of the EAA in 2000 made clear that
the EAA covered the time period when the Wisconsin Pro-
ject's request for records was pending before the Depart-
ment, and it ruled that the amended EAA did not constitute
an unconstitutional retroactive application of a new statute to
prior conduct.

II.

The purpose of the Freedom of Information Act is " 'to
pierce the veil of administrative secrecy and open agency
action to the light of public scrutiny....' " Dep't of the Air
Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted).
FOIA embodies " 'a general philosophy of full agency disclo-
sure unless information is exempted under clearly delineated
statutory language.' " Id. at 360-61 (quoting S. Rep. No. 813,
89th Cong., 1st Sess., 3 (1965)). FOIA accordingly mandates

a "strong presumption in favor of disclosure," United States
Dep't of State v. Ray, 502 U.S. 164, 173 (1991), under which
the statutory exemptions to disclosure are to be "narrowly
construed," Rose, 425 U.S. at 361. The exemptions, however,
are to be given "meaningful reach and application." John
Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). In
reviewing de novo a grant of summary judgment for the
government in a FOIA case, the court remains particularly
"mindful that the 'burden is on the agency' to show that
requested material falls within a FOIA exemption." Petrole-
um Info. Corp. v. United States Dep't of the Interior, 976
F.2d 1429, 1433 (D.C. Cir. 1992).

Exemption 3 takes literally the requirement that disclosure
prevail absent "clearly delineated statutory language," Rose,
425 U.S. at 361. Under Exemption 3, agencies may withhold
information "specifically exempted from disclosure by statute
... provided that such statute (A) requires that the matters
be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be
withheld." 5 U.S.C. s 552(b)(3). To qualify as a withholding
provision, a statute must be "the product of congressional
appreciation of the dangers inherent in airing particular data"
and must "incorporate[ ] a formula whereby the administrator
may determine precisely whether the disclosure in any in-
stance would pose the hazard that Congress foresaw." Am.
Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978).
In short, "only explicit nondisclosure statutes that evidence a
congressional determination that certain materials ought to
be kept in confidence will be sufficient to qualify under the
exemption." Irons & Sears v. Dann, 606 F.2d 1215, 1220
(D.C. Cir. 1979).

Exemption 3 has evolved from its original text to require
that Congress, not the agencies of the Executive Branch,
determine the need for nondisclosure. Congress amended
Exemption 3 in 1976 in response to the Supreme Court's
decision in Administrator, FAA v. Robertson, 422 U.S. 255,
266-67 (1975), which held that s 1104 of the Federal Aviation
Act of 1958 ("FAA"), 49 U.S.C. s 1504 (2000), constituted an
Exemption 3 withholding statute. The FAA authorized the

Administrator to withhold information from public disclosure
"when, in [the Administrator's] judgment, a disclosure of such
information ... is not required in the interest of the public."
Robertson, 422 U.S. at 257 n.4. Concerned that Robertson
"afford[ed] the FAA Administrator cart[e] blanche to with-
hold any information he please[d]," Congress overruled the
decision and narrowed Exemption 3 by adding subsections
(A) and (B). H.R. Rep. No. 94-880, pt. 1, at 23 (1976),
reprinted in 1976 U.S.C.C.A.N. 2183, 2204-05 ("H.R. Rep.
No. 94-880"). As this court has explained:

The amended text and its legislative history make
clear that Congress did not want the exemption to
be triggered by every statute that in any way gives
administrators discretion to withhold documents
from the public. On the contrary, Congress intend-
ed exemption from the FOIA to be a legislative
determination and not an administrative one.

Irons & Sears, 606 F.2d at 1220 (footnote omitted). A statute
qualifies as a withholding statute under Exemption 3, then,
where "Congress ha[s] itself made the basic decision, and
ha[s] left to the administrator only the task of implementa-
tion." Am. Jewish Cong., 574 F.2d at 630.

This court has previously considered the application of
Exemption 3 to the EAA. In 1978, in American Jewish
Congress v. Kreps, the court held that the disclosure provision
of the EAA of 1969 did not specify the types of matters to be
withheld with sufficient particularity. 574 F.2d at 630-31.
The court explained that Congress, in amending Exemption 3,
clarified that statutes that merely "set forth benchmarks for
secrecy so general as the 'interest of the public' " (such as the
statute at issue in Robertson) do not satisfy subsection (B)'s
"particular criteria" requirement. Id. at 629. "When, on the
other hand, Congress has made plain its concern with a
specific effect of publicity ... Exemption 3 is to honor that
concern." Id. Because the nondisclosure provision in the
EAA of 1969 referred only to "information obtained" under
the Act, id. at 626, the court concluded that the statutory
language was too broad to justify withholding information

under Exemption 3, id. at 631. The court, in light of the
EAA's lapse in 1976, had no occasion to reach "the thorny
question whether material that, when submitted, was 'specifi-
cally exempted from disclosure by statute' lost its exemption
once the statute went into remission." Id. (footnote omitted).

Following the court's decision in American Jewish Con-
gress, Congress enacted the EAA of 1979 and amended the
statute's nondisclosure provision. Pub. L. 96-72, s 12(c), 93
Stat. 503, 531 (1979) (codified as amended at 50 U.S.C. app.
s 2411(c)). Section 12(c) now specifies the particular types of
matters to be withheld -- namely, "information obtained for
the purpose of consideration of, or concerning, license applica-
tions under this Act...." 50 U.S.C. app. s 2411(c). Thus,
we have little difficulty concluding that section 12(c) qualifies
as an Exemption 3 statute. Times Publ'g Co. v. United
States Dep't of Commerce, 236 F.3d 1286, 1290 (11th Cir.
2001); Lessner v. United States Dep't of Commerce, 827 F.2d
1333, 1337 (9th Cir. 1987) (per curiam); Durnan v. United
States Dep't of Commerce, 777 F. Supp. 965, 966 (D.D.C.
1991). As a result, the "thorny question" to be addressed
here is whether the Department may withhold export applica-
tion data submitted during a period of lapse in the EAA, the
mirror image of the "thorny question" in American Jewish
Congress.

The Wisconsin Project contends that the Department may
not withhold the data, and the logic of its argument is simple:
Exemption 3, by its text, requires that a withholding "statute"
be in place; because the EAA was not in effect either when
the exporters submitted their application data to the Depart-
ment or when the Wisconsin Project requested that data from
the Department under FOIA, no statute exists to justify the
Department's withholding of the requested data. The Wis-
consin Project's formalistic logic, however, misses the bigger
picture. As the foregoing discussion of this circuit's prece-
dents indicates, the touchstone of the Exemption 3 inquiry is

whether the statute "is the product of congressional apprecia-
tion of the dangers inherent in airing particular data and
incorporates a formula whereby the administrator may deter-
mine precisely whether disclosure in any instance would pose
the hazard that Congress foresaw." Am. Jewish Cong., 574
F.2d at 628-29.

Congress's actions throughout the long history of the EAA
evince a clear appreciation of the dangers inherent in expos-
ing export application data to public view. Since it was first
enacted by Congress, the EAA has always contained a confi-
dentiality provision that permits the Department to withhold
export application data. See 50 U.S.C. app. s 2411(c); EAA
of 1969, Pub. L. 91-184, s 7(c), 83 Stat. 841, 845; Export
Control Act of 1949, Pub. L. 81-11, s 6(c), 63 Stat. 7, 8-9. In
1977, as Congress prepared to renew the EAA's provisions,
the Department urged Congress "to grant a blanket exemp-
tion from the provisions of the Freedom of Information Act
with respect to all information" submitted under the EAA.
H.R. Rep. No. 95-190, at 18 (1977), reprinted in 1977
U.S.C.C.A.N. 362, 379. Declining the invitation, the House
International Relations Committee explained that "[a]ny such
information which is legitimately confidential is, in the opinion
of the committee, adequately protected by the exemptions of
the Freedom Information Act and section 7(c) of the Export
Administration Act." Id. Congress reaffirmed this view two
years later when, in enacting the EAA of 1979, it replaced
section 7(c) with an amended section 12(c) in order to protect
the export data from disclosure under the court's opinion in
American Jewish Congress. Pub. L. 96-72, s 12(c), 93 Stat.
503, 531 (1979) (codified as amended at 50 U.S.C. app.
s 2411(c)).

The legislative history indicates that Congress intended to
preserve these confidentiality protections when it renewed
the EAA in November 2000. In commenting on the original
House version of the 2000 bill, Representative Gilman noted
that "the Department is ... currently defending against two
separate lawsuits seeking public release of export licensing
information," and he explained that the bill would "make sure
that [the Department] can keep the information confiden-

tial...." 146 Cong. Rec. H8022 (daily ed. Sept. 25, 2000).
Senator Gramm, commenting on the final version of the
legislation, stated that the statute "will make clear that [the
Department's] authority to apply the 12(c) confidentiality
provision of the 1979 act is to be considered as covering any
information regarding license applications obtained during
that time period, as if there had been no interruption of
authority." 146 Cong. Rec. S11365 (daily ed. Oct. 30, 2000).
The Wisconsin Project rightly notes that the legislative histo-
ry is not entirely uniform on this point. Representative
Gilman, for example, indicated that the bill's final language
left him uncertain whether the amendment would clearly
protect all information submitted between 1994 and 2000 from
disclosure. 146 Cong. Rec. H11575-76 (daily ed. Oct. 30,
2000). But regardless of whether every Member of Congress
agreed on the amendment's effect, the Members determined
that the confidentiality provision is important to the function-
ing of the export control system; otherwise they would not
have included it as part of the renewed EAA. And that
determination is the touchstone of this circuit's Exemption 3
inquiry. Irons & Sears, 606 F.2d at 1220.

The Wisconsin Project fails to acknowledge that the EAA is
not the only statute that reflects Congress's determination
regarding the confidentiality of export application informa-
tion. Congress enacted IEEPA out of concern that export
controls remain in place without interruption, and the accom-
panying Report of the House International Relations Com-
mittee included the following statement:

The committee rejected administration recommenda-
tions that it make the Export Administration Act
permanent legislation, because it feels that such
important regulatory legislation should be periodi-
cally reviewed.... Should a lapse [in the EAA]
occur, however, the authority of [IEEPA] could be
used to continue the Export Administration Regula-
tions in effect if, and to the extent that, the Presi-
dent declared a national emergency as a result of
such lapse....

H.R. Rep. No. 95-459, at 13 (1977). Although the legislative
history does not refer to the EAA's confidentiality provision,
it does evince Congress's intent to authorize the President to
preserve the operation of the export regulations promulgated
under the EAA. Moreover, it is significant for purposes of
determining legislative intent that Congress acted with the
knowledge that the EAA's export regulations had long pro-
vided for confidentiality and that the President's ongoing
practice of extending the EAA by executive order had always
included these confidentiality protections. Cf. United States
v. Midwest Oil Co., 236 U.S. 459, 469-74 (1915). Thus, in
Irons & Sears, the court was "extremely reluctant to impute
to Congress an intent to eliminate the long-standing confiden-
tiality accorded to patent applications absent rather unambig-
uous indications that this is what the Congress really want-
ed." 606 F.2d at 1220-21. A similar approach is appropriate
here in light of Congress's express desire, as evidenced by its
enactment of IEEPA and its knowledge of a pattern of
consistent lapse-filling by executive order, to hold export
application information in confidence.

Although Congress might have chosen to act in a manner
that reflects the Wisconsin Project's formalistic emphasis on
Exemption 3's requirement of a withholding statute -- by, for
example, making the EAA and section 12(c) permanent legis-
lation -- it did not, for reasons it explained. H.R. Rep. No.
95-459, at 13. Consequently, for purposes of determining
congressional intent with respect to withholding certain ex-
port data from the public, considering the EAA in conjunction
with other statutes is not inconsistent with FOIA's purpose or
Exemption 3's text. Exemption 3 contemplates withholding
pursuant to "clearly delineated statutory language," a phrase
that admits of more than a single statutory source. Through
the concerted operation of three congressional statutes -- the
EAA, the TWEA, and IEEPA -- and in light of the Depart-
ment's regulations and the President's executive orders pur-
suant to those statutes, the export control system has re-
mained in place without interruption for over fifty years. 50
U.S.C. app. s 2401-20 (2000); EAA of 1969, Pub. L. 91-184,
83 Stat. 841, 845; Export Control Act of 1949, Pub. L. 81-11,

63 Stat. 7, 8-9. During that time, the Department has always
retained the authority to withhold export license application
information from public disclosure. 50 U.S.C. app. s 2411(c);
EAA of 1969, Pub. L. 91-184, s 7(c), 83 Stat. 841, 845;
Export Control Act of 1949, Pub. L. 81-11, s 6(c), 63 Stat. 7,
8-9. The Wisconsin Project points to nothing to indicate that
this is not as the Congress intended.

While the Wisconsin Project's approach is attractive in its
simplicity, it fails to come to grips with the statutory scheme
Congress has erected for export data. The Wisconsin Project
would effectively require the court to hold that Congress
must act by a single statute if its legislation is to qualify as a
withholding statute under Exemption 3, and that the confi-
dentiality of the export data is undone by the EAA's expira-
tion notwithstanding Congress's expectations to the contrary.
In allowing the EAA to lapse from time to time, Congress has
focused on a series of difficult and controversial questions
having, so far as we are aware, nothing to do with its
expectation that export data would remain confidential. See
Dan Haendel & Amy L. Rothstein, The Shifting Focus of
Dual Use Export Controls, 25 Int'l Law. 267 (1991); Export
Controls; Views Abound, Time Runs Out, Economist, Oct. 1,
1983, at 45; Christopher Madison, Congress, Administration
Split on How to Plug Technology Leaks to Soviets, Nat'l
Journal, Feb. 19, 1983, at 380. Furthermore, the statutory
scheme for ensuring the confidentiality of certain export data
has none of the FAA's vagaries that concerned Congress, for
the statutes do not "afford [the President] cart[e] blanche to
withhold any information he pleases." H.R. Rep. No. 94-880,
pt. 1, at 23.

FOIA undoubtedly demands a liberal presumption of dis-
closure. But the Supreme Court has observed that the
"statutory exemptions are intended to have meaningful reach
and application." John Doe Agency, 493 U.S. at 152. The
Wisconsin Project's unduly strict reading of Exemption 3
strangles Congress's intent and deprives the exemption of
meaningful reach in the context of the export regulatory
scheme. In rejecting this approach, the court does not
diminish the requirement that an agency's decision not to
disclose materials under Exemption 3 must be based upon

"clearly delineated statutory language" that provides stan-
dards for withholding. In Founding Church of Scientology v.
Bell, 603 F.2d 945, 951 (D.C. Cir. 1979) (per curiam), the
Federal Bureau of Investigation invoked Exemption 3 in
withholding documents that a trial court in another proceed-
ing had sealed under Rule 26(c) of the Federal Rules of Civil
Procedure. The court held that "Exemption 3 is explicitly
confined to material exempted from disclosure 'by statute,'
and the Federal Rules of Civil Procedure simply do not
satisfy this description." Id. at 952. The court noted that
the rules "are issued by the Supreme Court under rulemak-
ing powers delegated by Congress. Although proposed rules
may be rejected by Congress, they are not affirmatively
adopted by the legislature, as all statutes must be." Id.
(footnotes omitted). Most importantly, the court observed
that "the rule's standards for issuing protective orders do not
comport with the criteria set forth in Exemption 3," because
the rule affords broad discretion to the trial court and does
not identify particular types of matters to be withheld. Id.
There is no dispute, as the Wisconsin Project points out, that
the EAA's export regulations and executive orders, like the
Federal Rules, are not congressionally enacted statutes. See
INS v. Chadha, 462 U.S. 919, 945-46 (1983). But Bell is
inapposite because the Federal Rules were originated and
written not by Congress but by the Supreme Court, whereas
the executive order here continued precisely the provision
originated and written by Congress.

Our conclusion accords with the decision of the Eleventh
Circuit Court of Appeals in Times Publishing Co. v. United
States Department of Commerce, 236 F.3d 1286, 1288 (11th
Cir. 2001). The Eleventh Circuit confronted the same ques-
tion: whether the Department may withhold export applica-
tion information under Exemption 3 even where the EAA has
expired. The court began with the principle established in
this court's precedent that, "[w]here Congress has made plain
its intention to exclude the information ... from public
disclosure under FOIA, the purpose of Exemption 3 -- to
ensure that 'basic policy decisions on governmental secrecy
are made by the Legislative rather than the Executive

branch' -- is satisfied." Id. (quoting Am. Jewish Cong., 574
F.2d at 628). The court then noted that "Congress has
renewed the confidentiality provision each time it has re-
newed the EAA" and that "Congress has authorized the
President, also by means of statute, to maintain the force of
the confidentiality provision by way of executive order." Id.
at 1291. The court thus concluded "Congress has acted
specifically to design a statutory provision to maintain confi-
dentiality." Id. It followed that "the comprehensive legisla-
tive scheme as a whole -- the confidentiality provision of the
EAA, the intended and foreseen periodic expiration of the
EAA, and the Congressional grant of power to the President
to prevent the lapse of its important provisions during such
times -- exempts from disclosure the export licensing infor-
mation requested by Appellees." Id. at 1292. We agree.

Finally, because IEEPA qualifies as an Exemption 3 stat-
ute, there can be no retroactivity problem. The Wisconsin
Project contends that even if the EAA, with its concomitant
regulations and executive orders, qualifies as an Exemption 3
withholding statute, applying the 2000 EAA amendment to
protect the Department's 1994-2000 data improperly affords
the amendment retroactive effect. But the reenactment of
the EAA confirmed, with respect to confidentiality, what has
been the case all along. Hence, contrary to the Wisconsin
Project's claim, in light of clear congressional intent, no "new
legal consequences" are being attached "to events completed
before its enactment," Landgraf v. USI Film Prods., 511 U.S.
244, 270 (1994), as would make application of the EAA
impermissibly retroactive.

Accordingly, because the Department of Commerce proper-
ly invoked Exemption 3 in withholding specific export applica-
tion data in response to the Wisconsin Project's request, and
because Congress's amendment of the EAA in 2000 did not
constitute unconstitutional retroactive legislation, we affirm
the grant of judgment to the Department.

 Randolph, Circuit Judge, dissenting: The statute has ex-
pired but its legislative history is good law. So say my
colleagues, in a most curious opinion.

Exemption 3 of the Freedom of Information Act permits
federal agencies to withhold documents "specifically exempt-
ed from disclosure by statute." 5 U.S.C. s 552(b)(3). We
can all agree that if s 12(c) of the Export Administration Act,
50 U.S.C. app. s 2411(c), were a law, it would qualify as an
Exemption 3 "statute." But the Export Act has expired. It
has no more force than the Independent Counsel statute or
the Sedition Act of 1798. It simply "no longer exists. Its life
is at an end." Greenwood v. Freight Co., 105 U.S. (15 Otto)
13, 18 (1881).

Mere "formalism," a quibble, replies the majority. The
Wisconsin Project's reading of Exemption 3 to require a
"statute," the majority explains, "strangles Congress's in-
tent." Maj. op. at 12. In other words, the Export Act may
be gone, but congressional intent lives on: Congress at one
time wanted the Commerce Department to keep the informa-
tion secret, and so it shall remain. No matter that the
Freedom of Information Act--a real law--expresses Con-
gress's intent to require a statute exempting the documents
from disclosure when they are sought or about to be released.
(The only documents sought were applications filed during a
time when the Export Act was not in effect.)

The majority also does a little, a very little, with the
International Emergency Economic Powers Act, suggesting
that it breathes life into the expired confidentiality provision
of the Export Act. To qualify for Exemption 3 treatment
under this theory, the Economic Powers Act must explicitly
refer to the Export Act, if not its confidentiality provision.
See Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir.
1979). The Economic Powers Act does not even mention the
Export Act. Instead, it authorizes the President to "regulate
... any ... exportation of ... or transactions involving, any
property in which any foreign country or a national thereof
has any interest" during a national emergency. 50 U.S.C.
s 1702(a)(1)(B). The only indication the Economic Powers
Act revived the Export Act comes not from its text but, as
the majority imparts, maj. op. at 10-11, from a Committee

report. The trouble is the Committee report does not men-
tion keeping the expired Export Act alive; it talks only about
preserving regulations the Commerce Department issued.
Regulations are not statutes, under the Freedom of Informa-
tion Act, or otherwise. More than that, the Committee
report does not even refer to the Export Act's confidentiality
provision. The Economic Powers Act, which does not itself
exempt anything from disclosure, thus flatly fails to qualify as
an Exemption 3 "statute." See Nat'l Ass'n of Home Builders
v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002).

The majority must realize the problem, so it asserts that an
Executive Order "continued precisely" the Export Act's confi-
dentiality provision. Maj. op. at 13. It never occurred to me,
or to the Framers of the Constitution, that the Executive
could by the stroke of a pen convert expired legislation into
an existing statute. Besides, no Executive Order of any sort
can satisfy Exemption 3, even if it tracks the language of
expired legislation. See Nat'l Ass'n of Home Builders, 309
F.3d at 38. An Executive Order is not a statute. See INS v.
Chadha, 462 U.S. 919, 945-46 (1983).

Congress amended Exemption 3 in the wake of FAA v.
Robertson, 422 U.S. 255 (1975), to restrict the Executive's
discretion to withhold information; it required, as a condition
for nondisclosure, an explicit nondisclosure statute. See Am.
Jewish Cong. v. Kreps, 574 F.2d 624, 628-29, 631 (D.C. Cir.
1978). There is no such statute here. In the end all the
majority can come up with is some free-floating congressional
intent about the meaning of a statute that no longer exists.
Alice once encountered a comparable phenomenon: " 'Well!
I've often seen a cat without a grin,' thought Alice; 'but a
grin without a cat! It's the most curious thing I ever saw in
all my life!' " Lewis Carroll, Alice in Wonderland 69 (1946).
I therefore respectfully dissent.