595 F.2d 685 | D.C. Cir. | 1978
Opinion PER CURIAM.
We review the decisions of the District Court granting summary judgment to the Federal Trade Commission (Commission or FTC) and enforcing the Commission’s orders requiring appellant corporations to file financial performance reports as part of the Line of Business (LB) and Corporate Patterns Report (CPR) surveys.
I. THE FTC SURVEYS
A. The Line of Business Program.
In August 1975, as part of the Line of Business survey, the Commission ordered 450 of the nation’s largest domestic manufacturing concerns to file reports disclosing certain indicia of financial performance for 1974.
The Commission proposes to aggregate the LB statistics within each market category in order to identify areas of the economy in which profits are relatively high or low and to assess relationships between market structure and performance, and to use this information to target particular markets for industry-wide investigations into potential antitrust violations or unfair trade practices.
The Commission began developing the Line of Business form in 1970. After extended consideration and extensive revisions, a limited survey was conducted to collect 1973 data.
B. The Corporate Patterns Report Program.
The Corporate Patterns Report survey requires over 1100 major domestic corporations to report the value of shipments from their domestic manufacturing establishments in 1972, in terms of product classifications developed by the Census Bureau for use in the Quinquennial Census of Manufactures.
The Corporate Patterns Report survey was considered initially by the Commission in 1972.
II. DISCUSSION
Enforcement actions were commenced in the District Court against the companies that had refused to. comply with the Commission’s orders,
A. Lawfulness of the FTC Report Orders.
1. Nonapplicability of the Administrative Procedure Act’s Rulemaking Requirements.
The Federal Trade Commission Act (FTC Act)
To require by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce, excepting banks and common carriers subject to the Act to regulate commerce or any class of them or any of them, respectively, to file with the Commission in such form as the Commission may prescribe annual or special,, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations*309 filing such reports or answers in writing.38
Appellants claim that the Commission’s exercise of this authority, which they do not challenge,
Our first inquiry is whether the Federal Trade Commission Act obligates the Commission to observe APA rulemaking procedures when exercising its authority to require informational reporting pursuant to Section 6(b) of the FTC Act. We conclude that neither Section 6(b) nor any other section of the FTC Act requires adherence to the APA’s rulemaking procedures nor does any section of the Act prescribe other procedural prerequisites to the exercise of the Commission’s authority to require reporting. Section 6(b) states that the Commission by order may require corporations “to file with the Commission in such form as the Commission may prescribe reports or answers in writing to specific questions, furnishing the Commission such information as it may require. . . . ”
*311 The third type of administrative compulsory power may be incidental to either legislative or judicial powers of administrative agencies, or it may be entirely independent of either. I refer to the compulsory action of administrative agencies when they issue subpoenas, require records or reports, or undertake mandatory inspections. These functions are investigative in nature.49
Investigative acts, specifically including report orders, are encompassed in Section 6(c) of the APA, which states “process, requirement of a report, inspection, or other investigative act or demand may not be issued, made, or enforced except as authorized by law.”
Our determination that these statistical surveys are investigative in character and therefore not subject to rulemaking procedures is buttressed by an earlier decision of this court in Montship Lines, Ltd. v. Federal Maritime Board
The order at issue here was clearly investigatory in nature, as opposed to an adjudicatory or rulemaking process, and hence not subject to the procedures governing rule-making outlined in the APA. Cf. Genuine Parts Co. v. F.T.C., 445 F.2d 1382, 1388 (5th Cir. 1971); K. Davis, Administrative Law Treatise, § 3.01 at 159, n.1 (1958).54
The LB and CPR surveys, too, are “clearly investigatory in nature” and just as plainly exempt from the Administrative Procedure Act’s compulsory rulemaking requirements.
We next consider whether the Corporate Patterns Report Program impermissibly affronts the Census Act.
Both the CPR survey and the 1972 Survey of Manufactures require the respondent corporation to report the value of shipments
[n]o department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.65
This language unambiguously protects actual file copies of census reports retained by corporations. In fact, appellants’ construction extends so far beyond the Statute’s plain terms that we might fairly reject it without further inquiry. In any event, an examination of the legislative history and purpose of the confidentiality provision of the Census Act equally belies appellants’ assertion that the FTC’s value-of-shipments inquiry is a circumvention of the Census Act’s intended protection.
Section 9(a)(3) was added to the Census Act in 1962
In the wake of the St. Regis decision, and at the request of the Commerce Department,
[Cjare must be taken not to extend confidentiality to such an extent as to interfere unduly with responsibilities of other agencies of Government in carrying out functions which require information. These include the antitrust acts and other regulatory acts. . . . [T]he protection to the respondent’s file copy of the census reports should apply only to the file copy and not to the information itself or to other records and documents of the company . . . . [A]ny extension of confidentiality beyond the census copy would be strongly opposed by the administration. . . .78
[T]he ability of a regulatory agency to formulate inquiries, even one identical with those asked by Census, would not be affected. The only restriction would be that the inquiry would not demand an answer by definition identical with that furnished the Census Bureau in another context and for another purpose.79
This distinction between a regulatory agency asking a question identical to that posed by the Census Bureau, which the FTC concedes it is doing,
The legislative history of the 1962 amendment indicates two reasons why confidentiality was considered essential to candid and expeditious census reporting. First, in order to encourage prompt replies to Census questionnaires, companies are implored by the Bureau to “authorize subordinate officials to furnish information directly, without time-consuming formal clearance by comptrollers, auditors, or legal counsel concerned with problems other than statistical reporting.”
The CPR survey, by presenting a question essentially identical to the Census inquiry with respect to value of shipments, does not “demand an answer by definition identical with that furnished the Census Bureau.”
B. Judicial Enforcement of FTC Informational Report Orders.
1. The Applicable Standards of Review.
Section 9 of the Federal Trade Commission Act
In United States v. Morton Salt Co.,
The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.93
The Court went on to state that the purpose of the investigation may be nothing more than to satisfy “official curiosity,” because “law enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”
[T]he Federal Trade Commission has made a vigorous effort in recent years to improve the effectiveness of its law enforcement resources allocations for antitrust and consumer protection. One consequence has been a shift toward investigations and cases which are industry-wide in scope. To choose as wisely as possible which industry-wide investigations best serve the public interest, accurate industry-by-industry performance information is needed. The Commission’s efforts in this respect have been hampered by the decline over time in the quality of the information available. The Line of Business program was conceived to help fill those information needs.96
Similarly, the Commission states that the CPR data banks will be used for “enforcement efforts, economic studies, and policy planning activities.”
Although the investigative powers of the regulatory agencies are broad, they are not unlimited, and are subject to judicial review “[t]o protect against mistaken or arbitrary orders.”
2. The Relevance and Burdensomeness Determinations.
The corporate appellants argue that if the FTC report orders are summarily enforceable as ordinary compulsory process, as we have concluded they are, the District Court erred, in evaluating the relevance and burdensomeness of the Line of Business orders.
As recognized in Texaco, relevance is to be measured against the agency’s general purpose in gathering the investigative material.
The next question is whether the District Court abused its discretion in determining that the Line of Business reporting requirements do not impose an undue burden on the respondent corporations.
Finally, appellants have failed to persuade us that the District Court erred in its refusal to disregard the long and consistent line of authority supporting independent consideration of relevance and burdensomeness.
3. Enforcement Procedures.
The corporations further argue that enforcement of the FTC’s report orders by summary mandamus procedures violates Federal Rules of Civil Procedure 81(a)(3) and 81(b), which, they contend, require full compliance with the federal rules, including commencement of suit by the filing of a complaint and the issuance of a summons in a plenary proceeding.
Rule 81(b) abolishes the writ of mandamus and provides that relief in the nature of mandamus may be obtained “by appropriate action or by appropriate motion.”
As a general rule, district courts do not issue directions in the nature of mandamus except in aid of jurisdiction already acquired. . . . However, where the Court was able to discover a congressional authorization for use of a writ of mandamus, it approved the issuance upon a petition of a peremptory writ, [citations omitted] By [Section 9 of the FTC Act] Congress has expressly conferred jurisdiction to issue a writ of mandamus. Therefore, it seems clear that Congress has expressly authorized the court to proceed summarily to enforce orders of the Federal Trade Commission for the production of documents.118
We find the very thin thread of logic offered by appellants insufficient to support their argument that summary mandamus enforcement proceedings for FTC report orders is prohibited by unyielding adherence to the Federal Rules of Civil Procedure.
4. Confidentiality Claims.
Appellants ask to be excused from complying with the LB and CPR orders because of potential jeopardy to confidential information sought by the Commission if LB and CPR data or data aggregates are published.
Appellants contend that if the Commission decides to publish aggregate Line of Business statistics that these figures may be subject to disaggregation, thereby revealing confidential individual company data. This argument is premature and improper for several reasons. First, the Commission has already promulgated regulations to ensure the confidential treatment of the 1974 Line of Business information.
Second, the Commission has invited reporting companies to lodge with their LB reports special requests indicating why their reported data may be especially vulnerable to identification if included in published aggregates.
In the CPR appeal, appellants contend that the CPR data constitutes “trade secrets” barred from publication by Section 6(f) of the FTC Act.
5. Claims of the Adjudicative Appellants.
Nine of the appellant corporations who are respondents in adjudicative proceedings styled In the Matter of Exxon Corporation, et al. and In the Matter of Kellogg Co., et al.
Adjudicative appellants contend that the LB and CPR orders should not be enforced as to them because of the potential for allegedly unlawful use of the LB and CPR data in the adjudicative proceedings. We agree fully with the District Court that these claims do not go to the question of enforcement because “the potential jeopardy of procedural rights in the adjudicative proceedings cannot impinge upon the FTC’s right to collect the information in question, only upon the use to which the information might be put.”
Subsequent to the Commission’s interpretation of its rules, all the legal questions which Atlantic wishes to raise will be comprehended within the Exxon adjudicatory proceeding, and dealt with by the Administrative Law Judge . .
If Atlantic is dissatisfied with the Commission’s construction of its rules, Atlantic can raise these claims in the context of an appeal from the final decision of the agency in the adjudicative proceeding.143
The present litigation is no more appropriately suited to resolution of any claims that the corporations may wish to raise with respect to the Commission’s interpretation of its rules than were the proceedings in Atlantic Richfield. Raising these issues at this juncture is improper, and, accordingly, we affirm the District Court’s order.
C. The Comptroller General’s Review.
Appellants’ final allegation of error is that the Comptroller General’s approval of the Line of Business form
In carrying out the policy of this section, the Comptroller General shall review all existing information gathering practices of independent regulatory agencies as well as requests for additional information with a view toward—
(1) avoiding duplication of effort by independent regulatory agencies, and
(2) minimizing the compliance burden on business enterprises and other persons.146
In approving the LB form, the Comptroller specifically found that the information sought was not available to the FTC from another federal source and that the Commission had sufficiently minimized the respondents’ burden of compliance with the reporting requirement.
Appellants argue that the Comptroller was obliged to determine additionally that the data sought was “appropriate” to the FTC’s expressed need. This third criterion of review, appellants contend, is imposed implicitly by Section 3512(d) of the Federal Reports Act, which states:
While the Comptroller General shall determine the availability from other Federal sources of the information sought and the appropriateness of the forms for the collection of such information, the independent regulatory agency shall make the final determination as to the necessity of the information in carrying out its statutory responsibilities and whether to collect such information, (emphasis added)148
The determination of appropriateness in this context, appellants suggest, should entail a substantive evaluation of the requested data to establish that it meets “some minimum standard of meaningfulness and reliability in terms of the agency’s stated need.”
Section 3512 was added to the Federal Reports Act in 1973 to create a special review procedure for the dáta-collection
to insure that the existing clearance procedure for questionnaires or requests for data does not become, inadvertently or otherwise, a device for delaying or obstructing the investigations and data collection necessary to carry out the important regulatory functions assigned to the independent agencies by the Congress.152
Prior to the 1973 amendment, the OMB possessed authority to undertake a substantive appraisal of the data that a regulatory agency sought and to bar collection upon a finding that the data were not necessary for effectuation of the agency’s function or the particular program’s purpose.
The judgment of the District Court is affirmed. The corporate parties shall comply with the Line of Business and Corporate Patterns Report orders as issued by the Federal Trade Commission within 30 days of the date of this opinion.
So ordered.
.Multiple enforcement actions were brought by the Commission against companies who failed to comply with the 1974 LB and 1972 CPR orders. The actions relating to the two surveys were assigned to Judge Flannery who consolidated them into two dockets, In re FTC Line of Business Report Litigations, Master File Mise. No. 76-127 and In re Corporate Patterns Report Litigations, Master File Mise. No. 76-126. By order dated July 30, 1976 Judge Flannery established procedures for his tandem consideration of the two programs. (LB App. 162-186) In a series of opinions and orders the District Court addressed the numerous issues raised by the parties. In re FTC Corporate Patterns Report Litigations, 432 F.Supp. 274 (D.C., 1977) (LB App. 187); 432 F.Supp. 291 (1977) (LB App. 211); 1977-2 Trade Cas. 72,-141 (July 11, 1977) (LB App. 239); (unreported Final Order and Judgments) (July 15, 1977) (LB App. 271; CPR App. 248); 1977-2 Trade Cas. 72,420 (July 29, 1977) (denying motion to amend).
Pursuant to the final order and judgmént of the District Court entered July 15, 1977, the corporate parties were required to file their Line of Business reports within 150 days of the date of the order and the Corporate Patterns Reports within 90 days. A motion for stay of the enforcement order pending appeal was denied by the District Court on July 22, 1977 (LB App. 273) and by this court on October 21, 1977 (LB App. 274). Petition was made to the Supreme Court for a stay pending appeal in this court of the Corporate Patterns Report orders. Justice Brennan granted the petition on November 11, 1977 (CPR App. 253). Following several extensions of the compliance date in the Line of Business program, we issued an order on April 26, 1978 staying enforcement of the LB orders pending our further consideration of the matter.
. 15 U.S.C. § 46(b) (1976) states that the Commission shall have the power
To require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce, excepting banks and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the Commission in such form as the Commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commission may prescribe, unless additional time be granted in any case by the Commission.
. A more limited Line of Business survey was conducted for 1973. The LB form served on 345 companies in the 1973 survey differed from the 1974 form. See Bureau of Economics Staff Memorandum, 1974 Form LB Revision (LB App. 782). Numerous motions to quash the 1973 orders were denied by the Commission. Preenforcement actions seeking to enjoin the 1973 survey were commenced in the District Courts of Delaware and the Southern District of New York. Aluminum Co. of America v. FTC, 390 F.Supp. 301 (S.D.N.Y.1975) (LB App. 89); A. O. Smith Corp. v. FTC, 396 F.Supp. 1108, 1125 (D.Del.1975) (LB App. 55), rev’d, 530 F.2d 515 (3d Cir.1976) (LB App. 121); A. O. Smith Corp. v. FTC, 417 F.Supp. 1068 (D.Del. 1976) (LB App. 196), 403 F.Supp. 1000 (D.Del. 1975) (LB App. 100). The Commission com
Orders requiring reports for the 1975-1976 Line of Business survey have been served on 481 companies but the FTC has not instituted enforcement proceedings (LB App. 957).
. FTC Form LB (LB App. 735). See Instructions, Form LB, General (LB App. 748).
. The FTC has developed, based on the Office of Management and Budget’s Standard Industrial Classification system, 260 four-digit codes which define manufacturing market categories (LB App. 765).
. Federal Trade Commission, Annual Line of Business Report Program, Statement of Purpose (LB' App. 308) (hereinafter cited as LB Statement of Purpose); Supporting Statement, FTC Form LB, 1974 Survey Version, Federal Trade Commission (July 1, 1975) (LB App. 715) (hereinafter cited as LB Supporting Statement).
. LB Supporting Statement, supra note 6, at 4 (LB App. 719).
. Supra note 6.
. The 1973 LB form was the subject of public hearings by the Office of Management and Budget (see Minutes, LB App. 2601), and notice and comment review by the Comptroller General (see Report to the Comptroller General of the United States on the Evaluation of the Federal Trade Commission’s Proposed Annual Line of Business Report, May 10, 1974, at 3, LB App. 403).
. 40 Fed.Reg. 17081 (April 16, 1975).
. Letter from William F. Long, Manager, Line of Business Program (April 15, 1975) (LB App. 2297); LB Supporting Statement, supra note 6, at 9-10 (LB App. 723-724).
. Transcript of Public Hearing on Proposed FTC Form LB for Use in Collecting 1974 Line of Business (May 20, 1975) (LB App. 1435).
. Letter from Virginia M. Harding, Acting Secretary of the FTC, to Elmer B. Staats, Comptroller General of the United States (July 1, 1975) (LB App. 2025).
. 40 Fed.Reg. 28677 (July 8, 1975).
. Letter from Monte Canfield, Jr., Director, General Accounting Office, to FTC Chairman Lewis A. Engman (August 18, 1975) (LB App. 798).
. Order to File Special Report, 1974 Form LB (August 20, 1975) (LB App. 804).
. E. g.. Joint Motion to Quash Orders to File Special Reports and for Other Appropriate Relief filed September 2, 1975, on behalf of A. O. Smith Corp., et al. (LB App. 853; Motion of C.I.T. Financial Corporation to Quash Order to File Special Report and Memorandum in support thereof, filed September 22, 1975 (LB App. 2421). For a list of companies which filed motions to quash, see Appendix I to FTC Petition for Enforcement, “Motions to Quash LB Orders Filed with the Federal Trade Commission by Respondents” (LB App. 2547).
. Statement of the Commission on Motions to Quash the Orders to File the 1974 Line of Business Form (LB App. 878).
. Corporate Patterns Report for 1972, FTC Form CPR-1 (CPR App. 305), FTC Form CPR-2 (CPR App. 318), FTC Form CPR-S (CPR App. 322); Supporting Statement for the Federal Trade Commission’s Corporate Patterns Report (Dec. 31, 1974) (CPR App. 256) (hereinafter cited as CPR Supporting Statement).
. Supra note 19.
. CPR Supporting Statement, supra note 19, at 2 (CPR App. 257).
. Id at 4 (CPR App. 259).
. See FTC CPR Brief at 9.
. Supplemental Statement for the Federal Trade Commission’s Corporate Patterns Report (December 23, 1974) at 12-13 (CPR App. 267-268).
. 40 Fed.Reg. 4689 (Dec. 31, 1975).
. Letter from Monte Canfield, Jr., Director of GAO, to FTC Chairman Engman (March 24, 1975) (CPR App. 778). ■
. Meeting Notes (June 12, 1975) (CPR App. 984).
. FTC Resolution Authorizing and Directing the Collection of Economic Reports (July 29, 1975) (CPR App. 299).
. See FTC Order to File Special Report addressed to Allen-Bradley Co. (July 29, 1975) (CPR App. 304).
. FTC CPR Brief at 11.
. Statement of the Commission, Motions to Quash, Corporate Patterns Special Report (CPR App. 455).
. • See note 1, supra.
. See discussion in text infra at notes 37-55.
. See discussion in text infra at notes 56-86.
. See discussion in text infra at notes 89-143.
. See discussion in text infra at notes 144-159.
. 15 U.S.C. §§ 41 et seq. (1976).
. Id. § 48(b).
. During oral argument, counsel for appellants stated that the corporations were not “faulting with the power” of the Commission to conduct the Line of Business and Corporate Patterns Report surveys, but rather challenging only the alleged “procedural unfairness” of the way in which the Commission has exercised its authority.
. 5 U.S.C. § 553 (1976).
. Supra note 38.
. 15 U.S.C. § 46(g) (1976) provides that the Commission shall have power “to make rules and regulations for the purpose of carrying out the provisions of section 41 to 46 and 47 to 58 of this title.”
. See National Petroleum Refiners Ass’n v. FTC, 157 U.S.App.D.C. 83, 88, 482 F.2d 672, 677 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974).
. 15 U.S.C. § 49(a) (1976).
. See, e. g., FTC v. Lonning, 176 U.S.App.D.C. 200, 539 F.2d 202 (1976).
. Appellants rely heavily on the fact that the Securities and Exchange Commission and the Federal Power Commission have engaged in rulemaking in the development of information-gathering programs as support for the claim that the Federal Trade Commission should be required to conduct rulemaking proceedings prior to implementation of the LB and CPR programs. In our view, appellants’ reliance is misplaced. The statute enabling the SEC to establish reporting requirements is substantially different from the Federal Trade Commission’s governing legislation. The statutory provisions empowering the SEC to impose reporting requirements on corporations expressly provide that the SEC may do so only by the promulgation of rules and regulations in accordance with the Administrative Procedure Act. See, e. g., 15 U.S.C. §§ 77s(a), 78m(a) (1976).
The Natural Gas Act authorizes the Federal Power Commission to require natural gas companies to file annual or special reports and, analogously to the FTC Act, does not expressly confine the FPC’s information-gathering authority to the issuance of rules and regulations. Rather, 15 U.S.C. § 717i(a) (1976) provides, in part, that
[e]very natural-gas company shall file with the Commission such annual and other periodic or special reports as the Commission may by rules and regulations or order prescribe as necessary or appropriate to assist the Commission in the proper administration of this chapter.
Nonetheless, in a recent exercise of its power to require reporting, the FPC elected to conduct
. 5 U.S.C. §§ 551 et seq. (1976).
. We reject appellants’ argument that the LB and CPR programs fall within the APA’s defini- ' tion of a “rule,” 5 U.S.C. § 551(4) (1976), and are therefore subject to the APA’s rulemaking requirements, id. §§ 551(5), 553. The APA defines a “rule” as:
the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future or rates, wages, corporate or financial structures of reorganizations thereof, prices, facilities, appliances, services, or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.
Id. § 551(4). Appellants make two arguments. First, appellants maintain that since the LB and CPR data will be used for regulatory purposes, the collection of the data itself is a prescription of law or policy within the meaning of the rule definition. We agree with the District Court that appellants’ argument proves too much. 432 F.Supp. at 302. If the collection of information is considered a prescription of law or policy because of the possible regulatory uses to which the information may be put, then all types of compulsory process the product of which may be put to regulatory use — including subpoenas — would similarly require rulemaking.
Appellants’ second argument, which applies only to the LB program, is that the LB reporting requirements constitute “approval or prescription for the future of . valuations, costs, or accounting, or practices bearing on any of the foregoing” within the terms of the APA’s rule definition. But as the District Court determined, “the corporate parties can hardly claim that the present orders have prescribed accounting methods, since the present orders seek data from years past . . 432 F.Supp. at 301. Since the LB instructions allow corporations to provide estimates or incomplete information when underlying data is unavailable, the corporations cannot reasonably assert that they are unable to satisfy the LB requirements under their current accounting and recordkeeping systems. Line of Business Form, Instructions, General at 2 (LB App. 749).
Appellants nevertheless contend that the LB program prescribes accounting practices for the future because the “natural and practical results” of the reporting requirements will be transformations of the corporations’ accounting and recordkeeping practices. Since many corporations do not maintain financial records on the basis of the market classifications used in the LB program, corporations may decide to alter their future accounting practices to facilitate potentially recurring LB reporting obligations. But any adjustment undertaken by the corporations will be entirely voluntary and not at the express behest of the FTC. To the contrary, the Line of Business Form Instructions state expressly that “reporting corporations need not develop new accounting systems or substantially rework data processing procedures in order to complete the LB Form” Id. Moreover, the decision of any company subject to the LB orders to modify its accounting practices would most likely be based upon the company’s prediction that it will be subject to substantially similar LB reporting requirements in future years and that an alteration in accounting methods would significantly ease the burden of compiling and certifying responses. See Evidentiary Hearing Before the District Court for the District of Columbia, June 16 and 17, 1977, Testimony of Howard Siers for Dupont Company, Transcript at 71 (LB App. 1080); Testimony of John Spellman for Grace Company, Transcript at 346, 361 (LB App. 1320, 1335). Yet the Commission has made no final decision to repeat the LB program in its present form on an annual basis, although it has the authority to do so. In fact, the Commission has indicated that it will reconsider the present market categories on the basis of the data it receives from the first fully-enforced survey and in light of the recently developed market classification guidelines of the Financial Accounting Standards Board. FTC Memorandum dated May 9, 1977, soliciting comments on revision of 1974 LB Form (LB App. 994). Accordingly, we conclude that neither the LB program nor the CPR survey is embraced by the APA’s definition of a “rule.”
. 92 Cong.Rec. 5648 (1948).
. 5 U.S.C. § 555(c) (1976).
. Our view comports with the Commission’s interpretation of the procedural requirements of the Federal Trade Commission Act and the Administrative Procedure Act. The Commission has stated:
It has been the Commission’s long-standing interpretation of the interrelationship of the APA and the FTC Act that the Commission is not required to follow the APA procedures for rulemaking when the Commission decides to use its powers under Section 6, 15 U.S.C. § 46, or other provisions of the FTC Act, to gather information or to investigate.
Statement of the Commission on Motions to Quash the Orders to File the Line of Business Form at 11 (December 19, 1975) (LB App. 888). Deference is due an agency’s interpretation of its own mandate and, to a lesser extent, to its interpretation of the Administrative Procedure Act. International Telephone & Telegraph Corp. v. Local 134, International Brotherhood of Electrical Workers, 419 U.S. 428, 441, 95 S.Ct. 600, 609, 42 L.Ed.2d 558, 569 (1975).
. 111 U.S.App.D.C. 160, 295 F.2d 147 (1961).
. 533 F.2d 276 (5th Cir. 1976).
. Id. at 278.
. Appellant corporations contend, nonetheless, that the Commission developed the Line of Business and Corporate Patterns Report programs “behind closed doors” and in contravention of sound public policy. Appellants’ characterization of the FTC’s procedure finds no support in the record. The Commission provided substantial opportunity for public input and made a conscientious effort to be responsive to the numerous comments, complaints and criticisms proffered by corporations, experts and other branches of the government. Although the corporations have not always approved of the Commission’s resolution of their
. 13 U.S.C. §§ 1 et seq. (1976).
. Id. § 9(a)(3).
. Appellants seek to extend the Census Act’s protection to “statistical information specially prepared for and submitted to the Census Bureau” that is “not prepared or maintained in the ordinary course of business.” Joint Appellants’ CPR brief at 15-16.
. See note 63 infra.
. “Value of shipments” is defined by the Census Bureau and the FTC as “the value of products shipped for sale or transfer to other plants of the company which were manufactured, fabricated, processed or assembled” by the company. Census Instructions for completing the Annual Survey of Manufactures Report, 1973 at 7 (CPR App. 386); FTC Reference List for use in completing the Federal Trade Commission Corporate Patterns Report at 7-8 (CPR App. 333-334).
. Compare Item 9 of Census Form MA-100 (1973) (CPR App. 381), with Item 5 of FTC Form CPR-1, Corporate Patterns Report for 1972 (CPR App. 305).
The product-class codes utilized in the CPR survey are the five-digit codes developed by the Census Bureau in 1972 based on the Standard Industrial Classification system. Census of Manufactures: 1972 Numerical List of Manufactured Products (New (1977) SIC Basis). Series MC 72-1-12. The Annual Census of Manufactures for 1972 required reporting on the basis of product-class codes developed by the Census Bureau in 1967. Prior to publication of the 1972 data, however, the Census Bureau converted the survey results into the 1972 code classifications. The Census form for the Annual Survey of Manufactures for 1973 was sent to companies with each company’s value of shipments for 1972 converted into the 1972 code classifications.
. FTC Resolution Authorizing and Directing the Collection of Economic Reports (Dec. 17, 1974) (CPR App. 254). See Comments prepared by Commission’s Bureau of Economics staff on questions raised by staff of the General Accounting Office and discussed at meeting of March 11, 1975 (March 19, 1975) at 2 (CPR App. 283).
. FTC CPR Brief at 29. The inquiries are not identical in several respects. The CPR survey requires reporting in terms of the Census Bureau’s revised 1972 product codes, whereas reporting for the Annual Survey of Manufactures for 1972 was done in terms of the 1968 codes.
. 13 U.S.C. § 9(a)(3) (1976).
. Id.
. “[W]here the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended. And in such cases legislative history may not be used to support a construction that adds to or takes from the significance of the words employed. But the reasons for and the significant circumstances leading up to the enactment may be noticed in confirmation of the meaning conveyed by the words used.” (citations omitted) United States v. Missouri Pac. R.R. Co., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322, 376 (1929). See also Cass v. United States, 417 U.S. 72, 76-79, 94 S.Ct. 2167, 2169-2171, 40 L.Ed.2d 668, 672-674 (1974); United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575, 579 (1961); Caminetti v. United States, 242 U.S. 470, 484, 37 S.Ct. 192, 194, 61 L.Ed. 442, 452 (1917); March v. United States, 165 U.S.App. D.C. 267, 274-275, 506 F.2d 1306, 1313-1314 (1974); see generally 2A C. D. Sands, Sutherland Statutes and Statutory Construction, (4th ed. 1973) ch. 46, pp. 48-68; Murphy, Old Maxims Never Die: the “Plain-Meaning Rule’’ and Statutory Interpretation in the “Modem" Federal Courts, 75 Col.L.Rev. 1299 (1975).
. Pub.L. No. 87-813, 76 Stat. 922 (1962).
. 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961).
. Prior to the 1962 amendment, the confidentiality provision of the Census Act stated:
(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title—
(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied, or
(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or
(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports. 68 Stat. 1013 (1954).
. The decisions interpreting the scope of the Census Act’s confidentiality protection prior to 1962 consistently held that the actual forms submitted to the Census Bureau were protected
The scope of the confidentiality provisions of the unamended Census Act in protecting the copies of the census form retained in the corporate files was the subject of disagreement among the federal courts. The Seventh Circuit in FTC v. Dilger, 276 F.2d 739 (7th Cir.), cert. denied, 364 U.S. 882, 81 S.Ct. 171, 5 L.Ed.2d 104 (1960), held that the retained copies did come within the purview of the Act. The Second Circuit, however, held that the company was not required to retain a copy of their filed report and that the retained file copies were therefore not secure from compelled disclosure. St. Regis Paper Co. v. United States, 285 F.2d 607 (2d Cir. 1960), aff'd, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961).
. St. Regis Paper Co. v. United States, supra note 70, 368 U.S. at 216, 82 S.Ct. at 294, 7 L.Ed.2d at 247.
. Id. at 218, 82 S.Ct. at 295, 7 L.Ed.2d at 248.
. S.Rep.No.2218, 87th Cong., 2d Sess. (1962) (hereinafter cited as Senate Report) (CPR App. 657), U.S.Code Cong. & Admin.News 1962, p. 3188.
. H.R.Rep.No.2437, 87th Cong., 2d Sess. 2 (1962) (hereinafter cited as House Report) (CPR App. 645); Senate Report, supra note 73, at 2 (CPR App. 658), U.S.Code Cong. & Admin. News 1962, p. 3189.
. Moreover, the express provision of the Census Act requires accommodation of the interest of the federal agencies in gathering information. 13 U.S.C. § 132 (1976), states that “nothing in this title shall be deemed to revoke or impair the authority of any other Federal Agency with respect to the collection or release of information.”
. House Report, supra note 74, at 1 (CPR App. 644).
. Id.
. House Report, supra note 74, at 5 (CPR App. 648). See Hearings on Confidentiality of Census Reports Before the House Comm, on Post Office and Civil Service, 87th Cong., 2d Sess. (1962) (hereinafter cited as Census Hearings) at 27.
. House Report, supra note 74, at 7 (CPR App. 650); Senate Report, supra note 73, at 4 (CPR App. 660), U.S.Code Cong. & Admin.News 1962, p. 3191. See also Statement of Walter Ryan, Acting Chief, Office of Statistical Standards, Bureau of the Budget, Census Hearings, supra note 78, at 15.
. See note 72, supra.
. Letter from Luther H. Hodges, Secretary of Commerce, to Tom Murray, Chairman, Comm, on Post Office and Civil Service, House of Representatives (July 19, 1962); House Report, supra note 74, at 6 (CPR App. 649) Senate Report, supra note 73, at 3 (CPR App. 659), U.S. Code Cong. & Admin.News 1962, p. 3191.
. Id.
. See Ryan Statement, Census Hearings, supra note 78, at 17; Chamber of Commerce Statement, Census Hearings at 3; Federated Department Stores Statement, Census Hearings at 51; National Ass’n of Manufacturers Statement, Census Hearings at 62. See generally Note, The Required Report Privileges, 56 Nw.U.L.Rev. 283, 293 (1961).
. Supra note 79.
. See Statement of the Commission, Motions to Quash, Corporate Patterns Special Report at 13 (CPR App. 467); Letter from C. A.,Tobin, Secretary to the FTC, “To Whom This May Concern” (Feb. 13, 1976) (CPR App. 335); , Hearings on Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations For Fiscal Year 1977 Before the Senate Subcomm. on Appropriations, 94th Cong., 2d Sess. (1976) at 142-143 (CPR App. 617-18).
. Affidavit of Cargill, Inc. at 4-7 (CPR App. 723-726); Affidavit of Northwest Industries, Inc. at 3 (CPR App. 740); Affidavit of Goodyear Tire & Rubber Co. at 2-3 (CPR App. 733-734).
. 15 U.S.C. § 49 (1976), which states, in part, that “the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person, partnership, or corporation to comply with the provisions of this subchapter or any order of the Commission made in pursuance thereof.”
. 15 U.S.C. § 46(b) (1976).
. 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950).
. 180 U.S.App.D.C. 390, 555 F.2d 862 (en banc), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). See 432 F.Supp. at 313-316 for the District Court’s analysis.
. 5 U.S.C. § 706(2) (1976). The District Court solicited supplemental memoranda on the agency action issue, and concluded that the LB and CPR programs are not “agency action” within the meaning of Section 706(2), and even if so considered, are not arbitrary, capricious, an abuse of discretion, or otherwise not in conformance with the standards of this Section. 1977-2 Trade Cas. at 72,143-72,146. As the District Court stated,
The court has a limited role to play, however, in reviewing agency action to determine whether it is arbitrary or capricious. This court cannot merely substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Rather, after a searching and careful inquiry, the court should determine whether the decision is based on a consideration of the relevant factors and whether there has been a clear error of judgment.
Id. at 72, 146. We agree with the District Court that the record of the administrative consideration of the LB and CPR programs reflects an extensive consideration of the problems posed by the development of these surveys. In addition, we reject as frivolous appellants’ assertion that the District Court’s ruling was procedurally deficient because it ruled on appellants’ challenge to the composition of the administrative record at the same time it rejected appellants’ claim of arbitrary and capricious agency action. Since the District Court rejected appellants’ claim that the administrative record was incomplete, there was no change in the composition of the record which could possibly have prejudiced appellants in their ability to present their arguments with respect to the agency action issue.
.Supra note 89.
. Id. at 642-643, 70 S.Ct. at 363-364, 94 L.Ed. at 410-411.
. Id.
. 15 U.S.C. § 49 (1976). See FTC v. Texaco, Inc., supra note 90, 180 U.S.App.D.C. at 403 n. 28, 555 F.2d at 875 n.28.
. LB Supporting Statement, supra note 6, at 2 (LB App. 717).
. CPR Supporting Statement, supra note 19, at 2 (CPR App. 257).
. United States v. Morton Salt Co., supra note 89, 338 U.S. at 640, 70 S.Ct. at 362-363, 94 L.Ed. at 409.
. Supra note 90, 180 U.S.App.D.C. at 400, 555 F.2d at 872.
. Appellants do not raise this objection in connection with the District Court’s enforcement of the Corporate Patterns Report orders.
. Supra note 90, 180 U.S.App.D.C. at 402, 555 F.2d at 874.
. 1977-2 Trade Cas. at 72,146.
. The critics of the LB program and the FTC agree that the design of the LB survey and the definition of market categories are not perfectly suited for collecting data that will infallibly reflect market conditions. But we do not hold the FTC to a standard of perfection in assessing the relevance of their effort. The complex problems of designing this type of statistical program have been and will continue to be the focus of extensive efforts by the Commission to improve the survey. In the meantime, it is not disputed that the LB data that the FTC receives will be the only corporate financial performance data available in terms of uniform market categories. We defer to the Commission’s expertise in concluding that this information is necessary and useful to performance of its regulatory responsibilities.
. See FTC v. Texaco, Inc., supra note 90, 180 U.S.App.D.C. at 409 & n.45, 555 F.2d at 881 & n.45.
. Id
. Id. at 410, 555 F.2d at 882.
. 432 F.Supp. at 315 & n.61. The corporations chose not to file affidavits with respect to the cost of complying with the CPR orders, 1977-2 Trade Cas. at 72,148.
. 1977-2 Trade Cas. at 72,148. Although all five affiants were invited to present oral testimony, the corporations elected to present only two.
. 1977-2 Trade Cas. at 72,151-72,152 (Findings of Fact ¶ 15).
. E. g., United States v. Morton Salt Co., supra note 89; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); FTC v. Texaco, Inc., supra note 90.
The single statement of the Fifth Circuit in Genuine Parts Co. v. FTC, 445 F.2d 1382, 1391 (5th Cir. 1971), that the burden of compliance was particularly reasonable in light of the fact that the portion of the order objected to was “the very heart of the inquiry,” does not suggest to us a change from the traditiohal bifurcated analysis.
. Appellants have filed a supplemental brief advancing the argument that as a result of the FTC’s filing a petition instead of a complaint in the District Court, “the district court never obtained subject matter jurisdiction and its final order granting mandatory relief is a nullity.”
Brief by Goodyear Tire, et al. at 14. This argument is totally lacking in merit. The Supreme Court has stated:
We think that so long as the court’s subject-matter jurisdiction actually existed and adequately appeared to exist from the papers filed, . any defect in the manner in which the action was instituted and processed is not itself jurisdictional and does not prevent entry of a valid judgment. See 2 J. Moore, Federal Practice II 3.06[1], pp. 731-732 (2d ed. 1974).
Schlesinger v. Councilman, 420 U.S. 738, 742 n.5, 95 S.Ct. 1300, 1305 n.5, 43 L.Ed.2d 591, 599 n.5 (1975).
. Fed.R.Civ.P. 81(b) states:
(b) Scire Facias and Mandamus. The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules.
. 7 J. Moore, Federal Practice ¶ 81.07, at 81-96 (2d ed. 1975).
. Fed.R.Civ.P. 81(a)(3) provides, in pertinent part:
These rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.
. See Notes of Advisory Committee on Rules, Fed.R.Civ.P. 81, 28 U.S.C.A. Rule 81 at 30-31 (1960).
. 432 F.Supp. at 280-283.
. Emerson Electric Co. v. FTC, Misc. No. 76-0002 (D.D.C. July 21, 1976); FTC v. Jorgensen, Misc. No. 75-46 (D.D.C. May 16, 1975); FTC v. Sherry, 1969 Trade Cas. 87,452 (D.D.C. 1969).
. 256 F.Supp. 318, 321 (S.D.N.Y.1966).
. 15 U.S.C. § 46(f) (1976) states that the Commission shall have the power
[t]o make public from time to time such portions of the information obtained by it hereunder, except trade secrets . and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for- additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use.
. 1977-2 Trade Cas. at 72,146 n. 7; 432 F.Supp. at 311-312.
. See Electric Bond Co. v. SEC, 303 U.S. 419, 438, 58 S.Ct. 678, 685, 82 L.Ed. 936, 946 (1938).
. July 11, 1977 order (LB App. 269).
. 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965).
. Supra note 90, 180 U.S.App.D.C. at 412 n. 62, 555 F.2d at 884 n. 62. See also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-464, 82 L.Ed. 638, 643-644 (1938).
. FTC v. Texaco, Inc., supra note 90, 180 U.S.App.D.C. at 412, 555 F.2d at 884.
. Id.
. Confidentiality Rules and Procedures for the 1974 Reporting Year, 40 Fed.Reg. 42243 (1975) (LB App. 710).
. Id.
. Id. In addition, the publication or release of any data submitted to the FTC is subject to a number of statutes. The FTC Act, 15 U.S.C. § 46(f) (1976), prohibits the Commission from publishing trade secrets obtained in its information-gathering activities. It is a criminal offense for any Commission employee to make public any confidential information obtained by the Commission, 15 U.S.C. § 50 (1976); 18 U.S.C. § 1905 (1976). For discussion of precautions taken to ensure the security of LB data, see Hearings on Appropriations for the Departments of State, Justice and Commerce, the Judiciary, and Related Agencies for 1977 Before a Subcomm. of the Senate Comm, on Appropriations, 94th Cong., 2d Sess., pt. 4, at 128-130 (1976).
. Statement of the Commission on Motions to Quash the Orders to file the 1974 Line of Business Form at 10 (LB App. 887); Statement of the Commission (on renewed motions to quash) at 4 (LB App. 558).
. See note 124, supra.
. 15 U.S.C. § 46(f) (1976).
. 432 F.Supp. at 311-312.
. Id. at 312.
. Supra note 130.
. 180 U.S.App.D.C. at 412 n. 64, 555 F.2d at 884 n. 64.
Appellants Milliken & Company and Allen-Bradley Company have filed a supplemental brief asserting their special interest in the asserted failure of the Commission and the District Court to protect adequately the confidentiality of the LB and CPR data. These privately-held companies aver that the danger of disclosure of their financial data is especially grave because they are not subject to the SEC’s reporting requirements applicable to public corporations. While there may be a unique facet to the confidentiality claims of the nonpublic corporations subject to the FTC surveys, these claims, like the confidentiality claims of the other appellant corporations, are nevertheless premature and without merit in this litigation.
. Atlantic Richfield Company, Exxon Corporation, Gulf Oil Corporation, Mobil Oil Corporation, Shell Oil Company, Standard Oil of California, Standard Oil Company (Indiana) and Texaco, Inc. are respondents in In the Matter of Exxon Corporation, et al., FTC Docket 8934. General Mills, Inc. is a respondent in In the Matter of Kellogg Company, et al., FTC Docket 8883.
. 185 U.S.App.D.C. 229, 567 F.2d 96 (1977).
. Id. at 239, 567 F.2d at 106.
In FTC v. Atlantic Richfield Co. this court required sequestration of the investigative documents pending the Commission’s interpretation of its rules as required on remand in order to ensure that discovery in the FTC adjudicative proceeding proceed according to the Commission’s interpretation of its rules. 567 F.2d at 106-107. Following the issuance of Atlantic Richfield on July 25, 1977, the adjudicative corporations moved the District Court to amend its final order and judgment by fashion
. In the Matter of Subpoena Duces Tecum Addressed to Atlantic Richfield Co., et al., FTC Docket No. 741-0019.
. 432 F.Supp. at 313. See note 121, supra.
. Supra note 139, 185 U.S.App.D.C. at 240, 567 F.2d at 107.
. The Corporate Patterns Report form was submitted to the Comptroller General by the Federal Trade Commission on January 23, 1975. The Comptroller published a notice of the proposed survey in the Federal Register on January 31, 1975, 40 Fed.Reg. 4689, soliciting written comments from all interested parties. In a letter dated March 24, 1975 from Monte Canfield, Jr., Director of the General Accounting Office, to FTC Chairman Lewis A. Engman, the CPR form was cleared for use by the FTC (CPR App. 777). Although the GAO expressed concern about the “meaningfulness” and confidentiality of the CPR data sought, it did not consider these reservations to be a basis for denying clearance under the review provisions of the Federal Reports Act.
The corporate parties raise no objection to the Comptroller’s clearance of the CPR form.
. 44 U.S.C. § 3512 (Supp. V 1975).
.Id. § 3512(b). Great weight must be given to an agency’s interpretation of its statutory mandate. . See Chemehevi Tribe of Indians v. FPC, 420 U.S. 395, 409-410, 95 S.Ct. 1066, 1075-1076, 43 L.Ed.2d 279, 289-290 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165-166 (1971); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 284 (1969); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965).
Appellants suggest that the Comptroller’s clearance regulations reflect a contemporaneous interpretation of § 3512 that includes a third statutory review criterion, “appropriateness.” The regulations simply refer to a determination that the forms are “appropriate for collection of the information sought,” 4 C.F.R. §§ 10.7, 10.12 (1976). We find no greater support for appellants’ expansive construction of this language in the regulations than in the statute itself. Moreover, the agency’s statement at the time these regulations were proposed reflects a contemporaneous interpretation of the statute by the Comptroller that comports with his present view, and to which we give the appropriate deference. 39 Fed. Reg. 2436 (1974).
. Letter from Monte Canfield, Jr., Director of the General Accounting Office, to FTC Chairman Engman (Aug. 18, 1975) (LB App. 798-802).
On July 1, 1975 the FTC submitted the 1974 LB form to the Comptroller (LB App. 2025). The GAO published the proposed form in the Federal Register on July 8, 1975, 40 Fed.Reg. 28677, soliciting comments from interested persons. The 1974 LB form was cleared for use by the FTC in a letter dated August 18, 1975 from Monte Canfield, Jr., Director of the GAO, to FTC Chairman Engman (LB App. 798-802). See Affidavit of Carl F. Bogar, Asst. Director, Procurement Systems & Acquisition Div., GAO (LB App. 2019).
The Comptroller’s August 18 letter indicated that revisions in the LB form for 1973 had improved, in the Comptroller’s view, the meaningfulness of the data to be collected. The Comptroller expressly indicated, however, that his views were advisory and not within the standards of review provided by § 3512 (LB App. 801-802).
. 44 U.S.C. § 3512(d) (Supp. V 1975).
. Joint Appellants LB Brief at 72.
. Pub.L. No. 93-153, Title IV, § 409(b), 89 Stat. 593 (1973), codified at 44 U.S.C. § 3512 (Supp. V 1975).
. Id. The OMB’s clearance authority is defined by 44 U.S.C. §§ 3501-3511 (Supp. V 1975).
. H.R.Rep.No.93-624, 93d Cong., 1st Sess. 31 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2417, 2533.
. 44 U.S.C. § 3506 (Supp. V 1975) provides: Upon the request of a party having a substantial interest, or upon his own motion, the Director of the Bureau of the Budget may determine whether or not the collection of information by a Federal agency is necessary for the proper performance of the functions of the agency or for any other proper purpose. Before making a determination, he may give the agency and other interested persons an opportunity to be heard or to submit statements in writing. To the extent, if any, that the Director determines the collection of information by the agency is unnecessary, for any reason, the agency may not engage in the collection of the information.
. Senator Bentsen, author of the enacted amendment, made the following statement on the Senate floor at the time of the amendment’s passage:
Unlike the previous oversight by OMB the GAO (Comptroller) would not make the final decision as to whether the information was needed. That decision would be left with the independent agency. My feeling was that if the General Accounting Office were given veto power over whether information was needed, it is putting them in the policy-decision framework, and I do not think that should be done.
119 Cong.Rec. 24085 (1973). See also id. at 23884-23885.
. 44 U.S.C. § 3512(d) (Supp. V 1975).
. Statutes must be construed when possible to avoid disharmony among their provisions.
. 432 F.Supp. at 307-310 (LB App. 227-30).
. 44 U.S.C. § 3512(b) (Supp. V 1975) quoted in full, text supra at 50-51.
. Appellants suggest an alternative theory of statutory construction in support of their claim that the Comptroller is required to analyze the meaningfulness or reliability of the requested data to the agency’s stated need. They suggest that the burden inquiry of § 3512(b) should
The Commission and the Comptroller raise several additional issues. Both contend that the Comptroller’s actions under the Federal Reports Act are not subject to judicial review. Their argument is that by limiting the period of time in which the Comptroller can review regulatory information-gathering forms to 45 days, 44 U.S.C. § 3512(d) (Supp. V 1975), Congress intended to preclude judicial review. See Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977); Harris v. Bell, 183 U.S.App.D.C. 253, 562 F.2d 772 (1977). The Commission also suggests that the Comptroller’s clearance function is agency action committed to agency discretion and therefore exempt from judicial review under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (1976). The District Court rejected this argument, 432 F.Supp. at 307-308. But see General Electric Co. v. FTC, 411 F.Supp. 1004, 1006 (N.D.N.Y. 1976); Westinghouse Electric Corp. v. FTC, 1976-1 Trade Cas. 68,815 (S.D.Ohio 1976). The Commission also suggests that the express purpose of the Federal Reports Act to protect “especially small business enterprises,” 44 U.S.C. § 3512(a) (Supp. V 1975), excludes the large corporate appellants from the Act’s zone of interest, thereby depriving them of standing to challenge the Comptroller’s clearance of the LB form. See Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Finally, the Commission contends that the challenge to the Comptroller’s clearance is not properly raised as a defense in an enforcement proceeding, FTC v. Texaco, Inc., supra note 90, 180 U.S.App.D.C. at 407, 555 F.2d at 879. Since we conclude that the arguments made by the corporations with respect to the Comptroller’s exercise of his review and clearance authority under the Federal Reports Act are clearly lacking in merit, we need not consider the various theories propounded by the FTC and the Comptroller.