[33] WALD, Circuit Judge, dissenting:

A close examination of the Freedom of Information Act ("FOIA" or "the Act") and its legislative history, the governing FOIA precedent, and the record of the Task Force's creation and functions demonstrates that the Task Force falls within the Act's definition of an "agency." The majority opinion does not give due weight either to the applicable law or to the actual role the Task Force played in the President's regulatory reform program. Accordingly, I dissent.

I. BACKGROUND

A. Legislative History

Congress in 1974 amended the Freedom of Information Act to broaden the definition of "agency" to encompass more entities "which perform governmental functions and control information of interest to the public," H.R. REP. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S. Code Cong. Admin. News 1974, 6267, 6274, reprinted in FOIA SOURCE BOOK: LEGISLATIVE HISTORY TEXTS, AND OTHER DOCUMENTS, COMMITTEE ON GOVERNMENT OPERATIONS, U.S. HOUSE OF REPRESENTATIVES 121, 128 (1975) [hereinafter FOIA SOURCE BOOK]. These amendments expanded the definition of an "agency" expressly to include an "establishment . . . in the Executive Office of the President." 5 U.S.C. § 552(e). As the majority points out, the House/Senate conference committee, citing this court's decision in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), clarified that "Executive Office of the President . . . is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R. REP. No. 1380, 93d Cong., 2d Sess. 14 (1974), reprinted in FOIA SOURCE BOOK 219, 233 [hereinafter Conference Report]. What the majority overlooks, however, is the additional and quite specific guidance Congress provided for determining when an establishment in the Executive Office of the President is an "agency" for FOIA purposes.

Most significantly, Congress contemplated that "agency" would encompass entities, like the Task Force, which are created solely by executive order. The statutory language expanding the definition of an agency originated in the House bill, H.R. 12471. In its report accompanying that legislation, the House Committee on Government Operations stated:

For the purposes of this section, the definition of "agency" has been expanded to include those entities which may not be considered agencies under [the APA, 5 U.S.C. § 551(1) ], but which perform governmental functions and control information of interest to the public. The bill expands the definition of agency for purposes of [FOIA]. . . .

The term "establishment in the Executive Office of the President," as used in the amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order.

H.R. REP. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S. Code Cong. Admin.News 1974, 6274, reprinted in FOIA SOURCE BOOK 121, 128 (emphases added).

Additionally, the legislative history indicates that in focusing on "functional entities" within the Executive Office of the President, Congress intended to exclude from the FOIA the President's own records. An exchange during the floor debate on H.R. 12471 between Representative Moorhead, chair of the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations, and Representative Erlenborn, the ranking minority member of that committee, illustrates this:

Rep. Erlenborn: The question has been asked by Members on this side of the aisle as to the meaning of two definitions of agencies to include the Executive Office of the President.

I want to ask the gentleman if it is not correct, as it states in the report of the committee, that the term "establishment in the Executive Office of the President" as it is contained in this bill means functional entities, such as the Office of Telecommunications Policy, the Office of Manager of [sic] the Budget, the Council of Economic Advisers and so forth; that it does not mean the public has a right to run through the private papers of the President himself?

Rep. Moorhead: No, definitely not. I think the report is crystal clear on that. I thank the gentleman for bringing it up.

120 CONG. REC. 6806 (1974), reprinted in FOIA SOURCE BOOK at 241 (emphasis added).

From the foregoing, we can surmise congressional intent on the definition of an agency to the following extent: It includes establishments within the Executive Office of the President, excepting only the President's "immediate personal staff" or units whose "sole function" is to advise and assist the President. It encompasses entities created by executive orders, with no requirement that the entity receive direct congressional approval or appropriations. And it shields the President's own records.

B. Precedent

In the oft-cited case of Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), this court interpreted the APA and the FOIA to confer agency status "on any administrative unit with substantial independent authority in the exercise of specific functions." Id. at 1073 (emphasis added). We determined that the Office of Science and Technology ("OST") satisfied this test "[b]y virtue of its independent function of evaluating federal programs. . . ." Id. at 1075.

This court has applied the Soucie "sole function" test three times to entities within the Executive Office of the President; two of the three entities were found to be "agencies." In its first application of the Soucie test, this court held that the Office of Management and Budget ("OMB"), an entity within the Executive Office of the President, was an "agency" under the Administrative Procedure Act, 5 U.S.C. § 551(1) and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. Sierra Club v. Andrus, 581 F.2d 895 (D.C. Cir. 1978). The court held that, although the OMB's primary statutory duty was to prepare the President's budget proposal for submission to Congress, it was an agency under the "sole function" test. Id. at 902. The court noted that the preparation of the budget was "an aid to Congress as well as an instrument of presidential and policymaking control over the executive bureaucracy," and that the OMB had other "management, coordination, and administrative functions." Id. The court also found that Congress "signified the importance of OMB's function, over and above its role as presidential advisor," when it provided for Senate confirmation of the OMB's director and deputy director. Id.

In 1980, this court applied the Soucie test to determine that the Council on Environmental Quality ("CEQ"), a unit within the Executive Office of the President, was an "agency" for purposes of the Government in the Sunshine Act, 5 U.S.C. § 552b(b), which adopted the FOIA definition of an agency. Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C. Cir. 1980). The CEQ was created by the NEPA, which authorized it to advise the President in preparing his annual environmental policy report; prepare studies on environmental conditions and trends for the President; review and appraise federal programs that affect the environment and make recommendations to the President about those programs; and recommend national environmental policies to the President. 42 U.S.C. § 4344. The CEQ's mission was later expanded by several executive orders, which made it responsible for overseeing activities of federal agencies; for coordinating federal programs related to environmental quality and for issuing guidelines to federal agencies for preparing Environmental Impact Statements; for issuing regulations to federal agencies for implementing the procedural requirements of the NEPA; and for publishing and revising the national contingency plan for removing oil and hazardous substances from navigable waters. Pacific Legal Foundation, 636 F.2d at 1262. Relying on the Supreme Court's determination in Soucie that the OST's authority to evaluate federal programs was sufficient to qualify it as an agency, this court looked to the CEQ's executive order authority to evaluate federal programs and likewise found it sufficient to qualify the CEQ as an agency. Id. at 1263.

The only entity within the Executive Office of the President that this court has found not to be an agency under the "sole function" test is the President's Council of Economic Advisors ("CEA"). Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C. Cir. 1985). The CEA was created by statute, housed in the Executive Office of the President, and authorized to, among other things, advise and assist the President in formulating his economic policies; gather information concerning economic developments and trends; and appraise federal programs and activities in light of the President's economic policies. 15 U.S.C. § 1023. The court noted that the CEA and the CEQ, which the court had earlier determined to be an agency, were created by statutes that were "for all practical purposes, identical." Rushforth, 762 F.2d at 1041. Nonetheless, Judge Starr, writing for the panel, distinguished the CEA from the CEQ on the ground that the latter's statutory functions had been expanded under several executive orders. Id. These expanded — and apparently dispositive — functions included coordinating federal regulatory policy, issuing guidelines for agencies to prepare required statements, and promulgating regulations for implementing the procedural provisions of a key environmental law. Id. See also id. at 1042 (the CEQ's "expanded duties . . . took [it] out of the realm of entities the sole function of which is to advise and assist the President"). Judge Starr also distinguished the CEA from the OST, found in Soucie to be an agency, by the OST's ability to "take direct action." Id. at 1041.

This court most recently applied the Soucie test not to an entity within the Executive Office of the President, but to the Defense Nuclear Facilities Safety Board, an "independent establishment in the executive branch." 42 U.S.C. § 2286(a). In Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581 (D.C. Cir. 1990), we held that the Board was an agency under the Soucie test, based on four functions demonstrating that the Board did "considerably more than merely offer advice": it conducted investigations; formally evaluated the Energy Department's standards relating to defense nuclear facilities; "force[d] public decisions about health and safety"; and possessed the authority to impose reporting requirements on the Secretary of Energy. Id. at 584-85. The court found that, since "[e]valuation plus advice was enough to make the Office of Science and Technology an `agency' in Soucie," and the CEQ an agency in Pacific Legal Foundation, the Board's evaluation and other functions more than fulfilled the Soucie test. Id.

These cases teach us that whether an establishment is an "agency" for FOIA purposes hinges primarily on its functions. See, e.g., Rushforth, 762 F.2d at 1043 n. 7 ("it is, at bottom, its function that determines an entity's status for FOIA purposes"); see also Ryan v. Department of Justice, 617 F.2d 781, 788 (D.C. Cir. 1980) (agency status depends on "general nature and functions" of a particular unit). Specifically, agency status does not depend on where within the Executive Office of the President (but outside the Office of the President, see infra 1309-10, 1311 n. 23) the establishment is located, see Rushforth, 762 F.2d at 1041 (while the CEA and the OST were "located, hierarchically, in the same position . . ., there [was] no indication that [their] functional roles . . . were the same; and critically, it was the functional role of the agency on which Soucie turned") (emphasis added), nor on congressionally granted authority, see id. (CEA and CEQ had virtually identical authorizing statutes). Thus, determining whether the Task Force is an agency requires a careful examination of both its authorized and actual functions.

II. APPLICATION OF THE LAW TO THE TASK FORCE

Turning now to the Task Force, it is obvious that both its structure and its authorized and actual functions satisfy all statutory and case law requirements of an agency under the FOIA.

A. The Task Force as an Establishment

First, the Task Force was an "establishment" within the Executive Office of the President. The legislative history of the FOIA's expanded definition of "agency" makes clear that entities created by executive order are sufficiently "established" to fall within its ambit. H.R. REP. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S. Code Cong. Admin.News 1974, 6274, reprinted in FOIA SOURCE BOOK at 121, 128. The majority, however, in its inquiry into the nature of the delegation of authority to the Task Force, completely overlooks the formality and authority of the delegation provided by Executive Order No. 12,291, saying that the President established the Task Force by "informal presidential direction" and suggesting that it lacked a sufficiently "definite structure" to qualify for agency status. Majority opinion ("Maj. op.") at 1296. Although the President announced the formation of the Task Force before he issued Executive Order No. 12,291, it was the Executive Order that spelled out the Task Force's mission, responsibilities and relationship to other entities in the executive branch, including those within the Executive Office of the President. Short of a reorganization plan requiring congressional approval, the executive order offers the most formal means available to the President to create or assign responsibility to an entity within the Executive Office of the President. Without deciding whether an entity in the Executive Office of the President without executive order authority can ever be an agency, it seems clear that an entity whose role is established by an executive order is a sufficient "establishment" to qualify as an agency, provided it passes Soucie's "sole function" test. The majority is surely correct that the President "does not create an `establishment' subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem." Maj. op. at 1296. This is not, however, a question of the President calling in his chief of staff and the Director of OMB, or yet his entire cabinet, for a strategy session. Instead, it is a matter of the creation of a separate functional entity to which the President — by an executive order — delegated significant independent authority to act on a continuing basis without his ongoing involvement. See infra at 1304-07.

The potential importance of executive order authority is evident in our opinion in Rushforth. There we determined that the President's delegation of authority, through an executive order, was alone enough to make an entity an "agency":

[A]ppellant mounts a policy argument that the President should not be allowed to take an entity out of, or place an entity in, FOIA agency status by the mere expedient of adding or eliminating duties. This argument is unavailing. Congress' intent would appear to have been to require entities having authority and the ability to act, but not those whose sole function was to render advice and assistance to the President, to be subject to FOIA. If the President adds duties to an entity which bring it outside the sole-function test, Congress would want the entity covered.

Rushforth, 762 F.2d at 1042 n. 5. This confirms that the "independent" authority that takes an agency outside the sole function test can be granted by the President, as well as the Congress. See also id. at 1042 (CEA lacked the "independent" authority enjoyed by the CEQ — authority granted by an executive order); id. at 1041-43 (emphasizing that the inquiry is on an entity's functions, not its genesis).

The majority also expresses its "doubt that any individual or group, within the Office of the President, without a separate staff can be regarded as an `establishment' with independent authority." Maj. op. at 1296. This new "requirement" of the majority that an agency have a separate staff is at odds with our precedent focusing on how an entity functions, not where it gets the resources to perform those functions. See Rushforth, 762 F.2d at 1041 ("critically, it was the functional role of the agency on which Soucie turned"); id. at 1043 n. 7 (Senate confirmation of CEA members not given great weight, as "the nature of the appointment" did not "speak to the function of the CEA"). Nor does this staff "requirement" appear anywhere in the FOIA's language or legislative history. Indeed, when Congress indicated that an entity created by an executive order could be a FOIA agency, it had to have contemplated that the President might exercise his broad powers to structure the Executive Office of the President to staff the new entity as he saw fit, whether by transferring staff to it or by designating personnel of other Executive Offices to provide needed support. It is clear that, by permitting FOIA agencies to be formed by executive order, Congress foreswore any requirement that an agency's staff appear on a separate line in an authorization or appropriation bill.

Even in case law under the APA, whose definition of "agency" is less expansive than the FOIA's, there is no such "separate staff" requirement. Instead, the APA inquiry into agency status is much like the FOIA inquiry: focused on the functions of the entity, and flexible enough to encompass the "myriad organizational arrangements for getting the business of government done." Washington Research Proj., Inc. v. HEW, 504 F.2d 238, 246 (D.C. Cir. 1974) (citations omitted), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). See also Lee Constr. Co. v. Fed Reserve Bank of Richmond, 558 F.Supp. 165, 173 (D.Md. 1982) ("`The authority to act with the sanction of government behind it determines whether or not a governmental agency exists.'") ( quoting Lassiter v. Guy F. Atkinson Co., 176 F.2d 984, 991 (9th Cir. 1949)).

Staff capabilities may, of course, be relevant indicia of an entity's ability to take substantial independent action, see Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 482 F.2d 710, 715 (D.C. Cir. 1973), rev'd on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), but ready access to staff support or, as in the case of the Task Force, direct delegation of authority effectively to direct OMB staff is the functional equivalent of a separate staff, as this case illustrates. In any event, it is clear, the majority's claims aside, that the Task Force was not "virtually powerless" without a separate staff. Maj. op. at 1296. Through its authority to direct the OMB Director and through the service of the OIRA Administrator as Executive Director of the Task Force (reinforced by the political suasion of its highpowered membership), the Task Force had the staff of a powerful and effective agency at its disposal.

B. The Task Force's Functions

Turning to the second part of our inquiry, the Task Force clearly had functions beyond "advising and assisting the President," as this term has been construed in our case law. As the majority acknowledges, Executive Order No. 12,291 "is the most important indication of the Task Force's role. . . ." Maj. op. at 1294. This Executive Order gave the Task Force "substantial independent authority," Soucie, 448 F.2d at 1073, charging it with the "direction" of a far-reaching regulatory reform program. The Task Force's directions were to be carried out by the Director of the OMB. Exec. Order No. 12,291 §§ 3(b), 3(e)(1), 3(i), 5(b), 6(a), 6(b), 7(c), 7(g) and 8(b). The Task Force was to "direct" the OMB Director in performing the following functions: reviewing preliminary and final Regulatory Impact Analyses ("RIAs"), notices of proposed rulemaking, or final rules based on the requirements of the order, § 3(e)(1); monitoring agency compliance with the order, § 6(a)(8); designating a proposed or currently effective rule as a "major" rule subject to additional review and reporting requirements, §§ 3(b), 6(a), 7(c)(2); requiring reconsideration of major rules, § 7(c)(1); identifying duplicative, overlapping and conflicting rules and requiring interagency consultation to eliminate such duplication, overlap or conflict, § 6(a)(5); preparing and promulgating uniform standards for the identification of major rules and the development of RIAs, § 6(a)(2); establishing schedules for reviews of RIAs, § 3(i); developing procedures for estimating annual costs and benefits of agency regulations, § 6(a)(6); developing procedures for the performance of his own functions under the order, § 6(b); requiring agencies to provide and evaluate additional information in connection with regulations or with their regulatory agendas, §§ 5(b), 6(a)(3); requiring the publication of regulatory agendas in a prescribed form, § 5(b)(2); waiving the requirements of the order with respect to any existing or proposed major rule, § 6(a)(4); and preparing, in consultation with the agency, recommendations for changes in the agency's statutes, § 6(a)(7). The Task Force was also entrusted with resolving any issues raised under the order or ensuring that they were presented to the President. See § 3(e)(1). One need not "strain" to construe this Executive Order as granting the Task Force substantial independent authority. See Maj. op. at 1297.

Additional evidence in the record reveals that the President intended, and the Task Force provided, an active and independent force for regulatory reform. The President instructed the Chair of the Task Force to "take clear, constructive, and decisive action to restrain Federal regulation and to improve the regulatory process." Memorandum for the Heads of Executive Departments and Agencies, Office of the Vice President, Mar. 25, 1981; Press Release, Office of the Vice President's Press Secretary, Mar. 25, 1981 (Task Force "was instructed by the President to take action, not write reports"). By the Administration's own accounts, the Task Force exercised its powers to the fullest, undertaking the final review of regulations of "truly major consequence," Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the White House Press Secretary, Feb. 18, 1981; "direct[ing]" federal agencies to propose new rules, Press Release, Office of the Press Secretary to the Vice President, Mar. 10, 1987; Press Release, Office of the Press Secretary to the Vice President, Jan. 29, 1988; "recommend[ing]" that federal agencies propose certain rules, Press Release, Office of the Vice President, July 14, 1987; "conven[ing] working groups representing key agencies to develop appropriate legislative proposals and responses," Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the Vice President, April 10, 1987; "designat[ing] . . . rules and regulatory programs for high-priority agency consideration, PRESIDENTIAL TASK FORCE ON REGULATORY RELIEF, REAGAN ADMINISTRATION REGULATORY ACHIEVEMENTS, Aug. 11, 1983, at 5; id. at 78; Press Release, Office of the White House Press Secretary, Feb. 4, 1982; making "decisions" and taking "actions" to address the submissions it receives. Remarks of Vice President George Bush at the Presidential Task Force on Regulatory Relief Briefing, Aug. 12, 1981; and "target[ing]" existing regulations for in-depth agency consideration, id.

The Task Force was directly involved not only with other executive agencies but with Congress and with the public. It "work[ed] actively with those in the Congress to achieve legislative change in the regulatory area," Press Release, Office of the Vice President's Press Secretary, June 13, 1981. It also "formally request[ed]" private sector comments to itself and to the agencies, Press Release, Office of the Vice President, March 25, 1981, and its counsel advised business leaders: "If you go to the agency first, don't be too pessimistic if they can't solve the problem there. If they don't, that is what the Task Force is for." C. Boyden Gray, Remarks at Transcription of Hall of Flags Regulatory Reform Briefing (Apr. 10, 1981), reprinted in Role of OMB in Regulation: Hearings of the Oversight and Investigations Subcomm. Of the House Comm. on Energy Commerce, 97th Cong., 1st Sess. 92 (1981), cited in Erik D. Olson, The Quiet Shift of Power: Office of Management Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 VA.J.NAT.RES.L. 1, 56 n. 283 (1984).

These functions equal or surpass those of every entity determined to date to be a FOIA agency and satisfy every judicial articulation of the Soucie "sole function" test. Like the OST in Soucie, 448 F.2d at 1075, the CEQ in Pacific Legal Foundation, 636 F.2d at 1263, and the Defense Nuclear Facilities Board in Energy Research Foundation, 917 F.2d at 584, the Task Force evaluated federal programs. Instead of evaluating only scientific, technological or environmental programs, however, the Task Force evaluated regulatory programs across the spectrum of executive agencies. See Press Release, Office of the Vice President, Feb. 17, 1981 (Task Force was "in charge of the President's overall regulatory reform program"). Its evaluation functions included: identification of duplicative, overlapping and conflicting rules; the final review of regulations of "truly major consequence"; identifying specific areas where it believed reporting and paperwork requirements could be reduced and, in coordination with the OMB, reviewing these requirements in order to reduce them; reviewing agencies' legislative recommendations; and reassessing federal regulations and paperwork requirements. It is significant that the Task Force's evaluation functions were geared not just toward counselling the President, but toward guiding its own interactions with the OMB and other executive agencies. Although the CEA's functions included evaluation, see Rushforth, 762 F.2d at 1042 n. 6, Judge Randolph later pointed out that all of its duties "simply facilitate[d] providing advice to the President." Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d at 584. By contrast, the Task Force's evaluation function shaped its decisions and actions directed toward executive regulatory agencies.

Like the Defense Nuclear Facilities Board, see Energy Research Foundation, 917 F.2d at 585, the Task Force imposed reporting requirements on federal agencies. Under Executive Order No. 12,291 the Task Force could direct the head of the OMB to require agencies to provide additional information in connection with their regulations or regulatory agendas; determine the standards for and the form in which agencies filed their RIAs and agendas; and, by designating rules as major rules, sharply increase the reporting requirements incident to the rules. The Task Force also satisfies Rushforth's requirement of ability to take "direct action." Rushforth, 762 F.2d at 1041. The President instructed the Task Force to "take action," Press Release, Office of the Vice President Mar. 25, 1981, and the Task Force claimed to have followed those instructions. It announced that, after formally requesting private sector comments about governmental regulation directed to itself and to the agencies, it made "decisions" and took "actions" to address these submissions. For example, the Task Force announced the EPA's "bubble" rule as one of the "actions taken" by the Task Force. Again like the Defense Nuclear Facilities Board, which "force[d] public decisions about health and safety," Energy Research Foundation, 917 F.2d at 584-85, the Task Force "directed" the Department of Health and Human Services and the Food and Drug Administration to make certain drugs available to AIDS patients, and claimed credit for regulations on the use of alternative fuels, as well as the "bubble" rule.

Finally, the Task Force exercised two of the three functions — coordinating regulatory programs, issuing guidelines and promulgating regulations — by which this court distinguished the CEA, which was not an agency, from the CEQ, which was. Rushforth, 762 F.2d at 1041. While the CEQ coordinated only environmental regulatory policy, the Task Force was "in charge of the President's overall regulatory reform program." The Task Force issued guidelines for all regulatory agencies on the preparation of the mandatory RIAs. And while it may not have published regulations in the Federal Register, its guidelines were, nonetheless, binding on federal regulatory agencies. See Exec. Order No. 12,-498, § 1(d), 3 C.F.R. § 323 (1986), reprinted in 5 U.S.C. § 601 note (1988). Moreover, it had far-reaching authority to shape the regulations of all regulatory agencies, through the final review of regulations of major consequence, the direction to federal agencies to propose new rules, the selection of rules for special scrutiny or for reconsideration, and the scheduling of the centralized review of all major regulations. Thus, it is easily distinguished from the CEA, which, as the Rushforth court noted, "ha[d] no regulatory power." Rushforth, 762 F.2d at 1043 (emphasis added). To the contrary, the Task Force's functions beyond advising and assisting the President equaled or exceeded those of the CEQ, and clearly sufficed to distinguish it from the CEA and to qualify it as an agency.

In assessing the Task Force's functions, the majority makes three fundamental errors. The first goes to the scope of the delegation of authority to the Task Force. The majority asserts that Executive Order No. 12,291 did not authorize "the Task Force, qua Task Force, to give directions to the executive branch." Maj. op. at 1293. To the contrary, the Executive Order expressly authorized the Task Force to give effective direction to the OMB, and through the OMB, to other executive agencies. In so doing, the Task Force directed what is "often called the most powerful agency in the United States Government." J. PARRIS, CONGRESSIONAL RESEARCH SERVICE, THE OFFICE OF MANAGEMENT AND BUDGET BACKGROUND, RESPONSIBILITIES, RECENT ISSUES i (1978), cited in Olson, supra, at 5. The Task Force's authority to direct other executive agencies was only fortified by Executive Order No. 12,498, which made the Task Force's regulatory policy guidelines binding on the agencies. See Exec. Order No. 12,498, § 1(d), reprinted at 5 U.S.C. § 601 note. Curiously, the majority cites this increase in the Task Force's direct authority over the agencies as a sign that the Task Force didn't "direct anyone . . . to do anything." Maj. op. at 1294. In Executive Order No. 12,498, however, the President didn't just say to the agencies, "do as I say," but instead, "do as the Task Force says." Thus, the President in Executive Order No. 12,498 underscored his delegation to the Task Force of the authority to direct the agencies through the issuance of binding policy guidelines.

The majority's description of the scope of the President's delegation to the Task Force comes not from the terms of the Executive Order itself or the Task Force's own account of the authority it exercised (which the majority rejects as "not reliable evidence," Maj. op. at 1294), but instead principally from its own conjecture and surmise. For example, the majority would measure the Task Force's "independent authority" by the extent to which its actions are not dependent on "continuing interaction with the President." Maj. op. at 1293. There is no evidence in the record that the Task Force had any continuing interaction with the President, and ample evidence, as discussed above, that it was authorized to act, and indeed acted, on its own. The majority surmises, nonetheless, that the Task Force, which was chaired by the Vice President, did not exercise any significant independent authority in part because "Presidents are . . . reluctant to delegate real supervisory authority over the executive branch to the Vice President" who is not subject to the President's removal power. Maj. op. at 1295. The majority relies on this general hypothesis about presidential behavior instead of on the Administration's own statements that Executive Order No. 12,291 did in fact constitute a delegation of the President's supervisory authority. See, e.g., Press Release, Office of the Vice President, Mar. 25, 1981 (Task Force to "take action"); Office of Legal Counsel, Memorandum on Proposed Executive Order Entitled "Federal Regulation" (Jan. 28, 1981), reprinted in 5 OP.OFF. LEGAL COUNSEL 59, 63 (1981) (President through Executive Order No. 12,291 "authoriz[ed] the Task Force and OMB Director to supervise agency rulemaking"); id. at 64 (Task Force and OMB Director "authorized to require an agency to defer rulemaking"). Only by "screening out" the Executive Order's and the Administration's descriptions of the Task Force's substantial independent authority can the majority conclude that the Task Force was merely "screen[ing] the regulatory issues" for the President's review. Maj. op. at 1297.

For example, the majority cavalierly dismisses, Maj. op. at 1294, the President's explicit delegation to the Task Force of the authority either to resolve disputes arising under the order or to determine when a dispute required the President's personal attention. The President's delegation to the Task Force of the authority to keep an issue from even reaching his desk is a clear indication of the Task Force's significant authority to deal independently with regulatory issues. The majority's statement that it "seems implicit" that the Task Force would not on its own resolve disputes without presenting them to the President is directly contradicted by the express language of the Executive Order, and by the Vice President's own assertion that the Task Force presented disputes to the President only "if necessary," see Press Release, Office of the Vice President, Feb. 17, 1981 (the "most sensitive questions" arising under Executive Order No. 12,291 "will be brought in timely fashion to the Presidential Task Force (and, if necessary to the President himself"; "regulations of truly major consequence are brought before the Presidential Task Force (and the President, if necessary) for final review"). The majority further suggests that, should the Task Force itself resolve disputes according to the President's known wishes, it would not be acting "independently." See Maj. op. at 1294-95. By this definition, virtually no loyal government body would be sufficiently "independent" to qualify as an agency. Only renegades or freelancers who ignored or disregarded the President's orders would be seen to "act independently."

The majority's resort to a thirty-year-old treatise about the presidency, Maj. op. at 1296, "maxims" about staff capture, Maj. op. at 1296, and the supposed beliefs of "veterans of bureaucratic wars," Maj. op. at 1296, to determine how the Task Force actually functioned, and its dismissal of the Task Force's Executive Order authority as "beside the point," Maj. op. at 1294, is troubling, to say the least. It discredits the two best and most reliable indications of the Task Force's role: the authority granted by the express terms of the Executive Order itself, and the Administration's own accounts of how the Task Force operated.

The majority's second fundamental error is in creating and applying an "operational proximity" test that represents a strained reading of the legislative history and runs directly counter to our precedent. The majority asserts — without citing any support from the legislative history or case law — that operational proximity in the sense of "continuing interaction" is, in part, what Congress contemplated when it exempted the President's "immediate personal staff" from the definition of an "agency." Maj. op. at 1293. Even assuming that "operational proximity" was a consideration in exempting the President's "immediate personal staff," it should be confined to this exemption. The majority's error is in confusing the "immediate personal staff" exemption, which is not at issue here, with the "sole function" exemption, which is a separate inquiry.

The Conference Report, of course, said that the definition of "agency" to include establishments in the Executive Office of the President was to be interpreted to exclude "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." CONF.REP. at 13 (emphasis added). We and the Supreme Court have interpreted "immediate personal staff" to refer to the staff of the Office of the President, also known as the White House Office, one of the fourteen units within the Executive Office of the President, and accordingly have granted FOIA exemptions to persons or offices within the White House Office without applying the "sole function" test. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) ("The FOIA does render the `Executive Office of the President' an agency subject to the Act. 5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the `Executive Office' does not include the Office of the President."); National Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990) (noting that the Supreme Court "ha[d] made clear that the Office of the President is not an `agency' for purposes of the FOIA" and that the Office of Legal Counsel was part of that Office) ( citing Kissinger, supra). The majority correctly "assumes" that the President's "immediate personal staff" encompasses " at least those approximately 400 individuals employed in the White House Office," Maj. op. at 1293 n. 3 (emphasis added), but then attempts to extend its "operational proximity" concept beyond the confines of the White House Office and to incorporate it into the "sole function" test.

This is not only an illogical reading of the two tests established in the legislative history, it is also at odds with our "sole function" precedent. We made clear in Ryan, 617 F.2d at 789, that regardless of an entity's close proximity to or continuing interaction with a President, it is a FOIA agency unless its sole function is to advise and assist the President. Thus, to the extent that we focus on how closely the entity works with the President, the "sole function" test, and not "operational proximity" is the proper inquiry.

Furthermore, by the majority's broad definition of "proximity," virtually every person or entity within the Executive Office of the President would be excluded from the FOIA, contrary to the statute's express inclusion of the Executive Office of the President in its definition of agency. For example, under the majority's "operational proximity" test, the Director of the OMB, determined by the majority to be the cabinet officer "functionally . . . closest to the President," Maj. op. at 1294, would, on the basis of that proximity, be a shoo-in for exclusion from the FOIA, but no one disputes that the OMB, along with its director, is subject to the FOIA.

The OMB's recognized operational proximity to the President, see Peter L. Strauss Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN.L.REV. 181, 185 (1986) (OMB "acts in some respects as the President's personal staff"); Christopher C. DeMuth Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV.L.REV. 1075, 1083 (1986) (OMB's role "is to serve as the eyes and ears of the president and to advance" the President's policies), does not negate the fact that the OMB is an establishment within the Executive Office of the President whose functions go beyond advising and assisting the President. When the statute expressly includes establishments within the Executive Office of the President, while the accompanying report language excludes only "immediate personal staff" and those whose "sole function" is to advise and assist the President, I have to read the report language to qualify, not obliterate, the statutory directive.

Finally, on the question of proximity to the President, it is important to note that the plaintiff does not seek records of the President, of the Vice President, nor yet of the Office of the Vice President. Instead, she seeks the records of a separate functional entity operating partly out of the Office of the Vice President and partly out of the Office of Management and Budget.

The majority's third fundamental error in assessing the Task Force's agency status is to confuse its composition or its structure with its functions. It finds inordinate significance in the fact that the members of the Task Force also served in other capacities as agency heads and members of the President's cabinet. That the President selected cabinet members to serve on the Task Force is not dispositive of its agency status for a very simple reason: The relevant inquiry is whether there is a separate establishment within the Executive Office of the President with substantial authority to act independently, and not the status of the individual members who make up the entity.

Although the majority professes to subscribe to the view that "form follows function," Maj. op. at 1297, its reasoning is closer to "form dictates function." That is, it is willing to disregard a wealth of record evidence about the Task Force's actual and authorized independent functions because the structure of the Task Force — as a "partial cabinet group" with the Vice President at the helm — raises questions in the majority's eyes as to the Task Force's "real" independence. Maj. op. at 1295.

The majority's focus on the composition of the Task Force is particularly puzzling in light of the majority's own identification of the three factors relevant under Soucie to determine whether entities like the Task Force are agencies: operational proximity, a self-contained structure (including an independent staff), and the scope and nature of the delegation from the President. Maj. op. at 1293, 1296. Although I disagree with the majority about the first two — which are entirely creatures of the majority's own making — the scope and nature of the President's delegation of authority is certainly the primary relevant inquiry. The majority, however, departs from its own inquiry into what the President delegated, that is, the degree of independent authority he gave the entity, and asks instead to whom he delegated this authority, that is, what other roles the members of the entity happen to play in the Administration. This inquiry is clearly inconsistent with the functional inquiry this court has applied in FOIA cases for twenty years.

III. CONCLUSION

This case does not question the President's authority to supervise the oversight of federal regulations. The President's authority to "supervise and guide" subordinate executive officers in order to "secure th[e] unitary and uniform execution of the laws" is well-established. Myers v. United States, 272 U.S. 52, 135, 47 S.Ct. 21, 31, 71 L.Ed. 160 (1926). More specifically, we have acknowledged the President's need and authority to coordinate federal regulatory policy:

The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House staff advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. The executive power under the Constitution, after all, is not shared — it rests exclusively with the President.

Sierra Club v. Costle, 657 F.2d 298, 405 (1981); see also In re Permanent Surface Mining Reg. Litigation, 13 ENV'T REP. CAS. (BNA) 1586, 1597 (D.D.C. 1979) (consultation between the President's advisers and other entities in the executive branch permissible). To exercise that power, the President and his close advisers must be able to communicate freely, and, in some cases, without public scrutiny. See Sierra Club, 657 F.2d at 406 ("Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive."). This case, however, unlike Sierra Club, does not involve face-to-face strategy sessions between the President and his policymakers. Rather, it involves a separate functional establishment within the Executive Office of the President to which the President delegated some of his executive powers. We have a clear expression of congressional intent that the records of such establishments are generally subject to the FOIA. Cf. Sierra Club, 657 F.2d at 407 (determining lawfulness of undocketed meeting with the President "in the absence of any further Congressional requirements" on docketing). Because the Presidential Task Force on Regulatory Relief does not fall within the Soucie exception to FOIA coverage, it must, consistent with the directives and exemptions of the FOIA, make its records available to those who request them.

Nor does this case question the President's authority to establish any kind of high-level structure — or no structure — within the Executive Office of the President to direct the regulatory reform effort. The President can choose to accomplish his regulatory objectives through his own actions, through an establishment created pursuant to his executive order authority, through an entity created through a congressionally-approved reorganization plan, or simply through rump sessions with his cabinet members. But the President must live with the consequences of his choice, one of which may be the requirements of the FOIA. We recognized this indisputable fact in Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C. Cir. 1980): "In many different areas the President has a choice between using his staff to perform a function and using an agency to perform it. While not always substantively significant, these choices are often unavoidably significant for FOIA purposes, because the Act defines agencies as subject to disclosure and presidential staff as exempt." The majority, nonetheless, chafes at these consequences, see Maj. op. at 1297, apparently concerned that the cloak of presidential privilege does not and cannot extend as far as the President's delegated authority. It is one thing, however, to say that the President's conversations with his closest advisers, here the Task Force members, are confidential. It is quite another to say that when the Task Force goes forth to exercise substantial independent authority, the President's consultative privilege extends not only to the Task Force in its communications to those whose work they direct, such as the Administrator of the OMB's OIRA, who served as the Task Force's Executive Director, but even to communications between the Task Force and representatives of regulated industries. I am perplexed as to how the majority could label such an approach "forthright." Maj. op. at 1297. The most the President can be said to have "openly disclose[d]," Maj. op. at 1297, is a review mechanism by which the substance of and the outside participants in the review can remain cloaked in secrecy.

Instead of addressing the Task Force's authority to direct the President's regulatory reform efforts, this case questions its authority to shroud its actions in absolute secrecy. Similarly tasked entities within the Executive Office of the President, most notably the OMB, operate without such a cloak. Shortly after the enactment of Executive Order No. 12,291, the Office of Legal Counsel advised the OMB that certain substantive communications from the OMB to rulemaking agencies or from outside parties to the OMB pursuant to the order should be disclosed in the administrative record. (The OLC exempted substantive communications from the OMB that formed part of the agency's deliberative process.) Office of Legal Counsel, Contacts Between the Office of Management and Budget and Executive Branch Agencies Under Executive Order No. 12,291 (Apr. 24, 1981), reprinted in 5 OP. OFF. LEGAL COUNSEL 107, 110-12 (1981). The OMB itself expanded on this disclosure policy in 1986 under a directive issued by Wendy Gramm, then the Administrator of the OMB's Office of Regulatory Affairs. OMB, Memorandum for the Heads of Departments and Agencies Subject to Executive Orders 12,291 and 12,498 (June 13, 1986), reprinted in OMB, REGULATORY PROGRAMS OF THE UNITED STATES GOVERNMENT, APRIL 1, 1988 — MARCH 31, 1989 (1988), app. III, at 529-31. Even supporters of a strong presidential role in supervising the regulatory process stress the importance of public disclosure of most OMB communications under Executive Order Nos. 12,291 and 12,498. See, e.g., Peter L. Strauss Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN.L.REV. 181, 188-90, 192 (1986). In fact, one Administrator of OIRA testified that "the very purpose of . . . Executive Order 12,291 is to make regulatory decisions more transparent and accessible." Statement of Christopher DeMuth, OIRA Administrator, Before the Subcomm. on Administrative Law Governmental Relations of the House Judiciary Comm. (July 28, 1983), reprinted in Regulatory Reform Act: Hearings Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 98th Cong., 1st Sess. 895, 922 (1983).

Given the Realpolitik of the workings of the Executive Office of the President, it is candidly hard to see how disclosure of the same genre of communications by and to the Task Force, which worked hand-in-glove with the OMB, sharing its staff, records, and responsibilities under Executive Order No. 12,291, would pose any significant potential for disruption of the President's valid oversight functions. In fact, it would seem that the objectives of the OIRA disclosure procedures — and FOIA itself — would be thwarted if comments sent to the OMB or the OIRA are subject to public access, while similar comments on the very same matter directed to the Task Force are never revealed.

The majority's approach thus creates two tracks: The Task Force, which is charged with the "overall direction" of the President's regulatory reform program, is shielded from disclosure laws, while the OMB, which operates under the Task Force's direction, is not. This clearly maps out the formula for getting around disclosure laws in the Executive Office of the President: First, put a small unit of decisionmakers atop a larger establishment of persons who carry out those decisions, and insist that because only the implementers have a staff, only they form the "agency." Second, when necessary, maintain that the "significant authority" resides only with the implementers, see Maj. op. at 1294, and that the "whole" of the decisionmaking unit is less than the sum of its parts. See Maj. op. at 1298. That is, if you sever the "brains" of an organization from the "body," the people who call the shots are never in the public's sights.

Subjecting the Task Force, as well as the OMB, to the FOIA would not compromise either the President's legitimate oversight authority or his undisputed need for confidential policy deliberations, as the FOIA's exemption 5 expressly provides for a deliberative process privilege. In fact, the Administration invoked this privilege to shield certain documents requested by the plaintiff in this case. To the extent that the President or his close advisers need to protect sensitive policy discussions, they can more appropriately do so through the FOIA exemption, which protects particular records from disclosure, rather than through the FOIA agency determination, which bars all records from disclosure. See Pacific Legal Foundation, 636 F.2d at 1265 (where concern was protecting confidential advice to the President, court was unwilling to close all meetings, rather than those meetings in which such confidential advice was to be deliberated).

It is not enough to say, as the majority does, that the Task Force or its Chair is a "hair's breadth" or a "heartbeat" away from the President. This court has previously declined to exempt the President's closest advisers, his Cabinet members, from the FOIA: "Many Cabinet officers, like the Attorney General or the Office of Legal Counsel under him, act as advisors to the President for many of their important functions; yet they are not members of the presidential staff or exclusively presidential advisors, and are thus not exempt from FOIA requirements." Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C. Cir. 1980). See also Soucie, 448 F.2d at 1074 n. 22 (director of OST expected to replace the President's Special Assistant for Science and Technology in the capacity of personal adviser to the President on scientific matters). Nor is it enough to say that the Task Force operated at the highest levels of the White House. Soucie itself involved an agency created in the Executive Office of the President to provide "higher level" coordination of the nation's science policies. Soucie, 448 F.2d at 1074. Finally, it is not enough to say that the Task Force created the records at issue in its role of advising the President. The report at issue in Soucie was "requested by the President precisely for advisory purposes," Ryan, 617 F.2d at 788, as was the information the Attorney General had gathered in Ryan. Id.

Instead, the proper inquiry, as the district court noted, must center on the "functions and responsibilities of the Task Force, not the title of its Chairman or his other office," and on the evidence that the Task Force was not formed simply to advise and assist the President, but rather had "substantial, independent, directorial authority." The majority recognizes, as it must, that the district court "applied the correct governing law. . . ." Maj. op. at 1291. As the extensive prior discussion demonstrates, and as the district court found as well, such an inquiry leads ineluctably to a recognition that the Task Force is an "agency" under the FOIA test. Accordingly, I would affirm the district court's judgment, and dissent from my colleagues' contrary conclusion.