INTERNAL REVENUE SERVICE, et al.

                                  No. 83-1856.

                         United States Court of Appeals,

                          District of Columbia Circuit.

                          Argued En Banc Dec. 5, 1985.

                              Decided May 27, 1986.

                            As Amended May 27, 1986.

  Church brought action under Freedom of Information Act to compel Internal

 Revenue Service to disclose all documents in its possession relating to

 church.  The United States District Court for the District of Columbia, Norma

 Holloway Johnson, J., 569 F.Supp. 1165, granted summary judgment in favor of

 the Internal Revenue Service.  Church appealed.  The Court of Appeals,

 Scalia, Circuit Judge, held that phrase "in a form" in Haskell amendment, which

 exempts from Internal Revenue Code's definition of nondiscloseable "return

 information" "data in a form which cannot be associated with, or otherwise

 identify, directly or indirectly, a particular taxpayer," requires, in addition

 to fact of nonidentification, some alteration by government of form in which

 return information was originally recorded.

  Order accordingly.

  Silberman, Circuit Judge, concurred and filed an opinion.

  Wald, Circuit Judge, dissented and filed an opinion in which Spottswood W.

 Robinson, III, Chief Judge, and Mikva, Circuit Judge, joined.


 Appellate review serves dual purpose:  correction of legal error and

 establishment of legal rules for future guidance.


 En banc court's consideration effectively constitutes second-level appellate

 review where law-clarifying function predominates, at least where full court

 has before it full text of proposed panel opinion.


 Heightened protection, with regard to disclosure requirements under Freedom of

 Information Act, was intended with regard to tax information, in order to

 encourage full, voluntary self-assessment of taxes upon which internal revenue

 system largely depends.  5 U.S.C.A. s 552(a)(2), (a)(4)(B), (b)(3).


 Haskell amendment, which exempts from Internal Revenue Code's definition of

 nondiscloseable "return information" data in form which cannot be associated

 with, or otherwise identify, directly or indirectly, a particular taxpayer,

 does not exclude from definition of "return information" all nonidentifying

 data.  26 U.S.C.A. s 6103(b)(2).


 Phrase "in a form" in Haskell amendment, which exempts from Internal Revenue

 Code's definition of nondiscloseable "return information" "data in a form which

 cannot be associated with, or otherwise identify, directly or indirectly, a

 particular taxpayer," was meant to permit publication and distribution of

 statistical studies, forecasts and surveys that are purpose of permitted

 disclosures to Commerce, FTC, and Treasury, and requires, in addition to fact

 of nonidentification, some alteration by government of form in which return

 information was originally recorded such as statistical tabulation or some

 other form in combination with other data as to produce unitary product that

 disguises the origin of its components;  disagreeing with Long v. IRS, 596

 F.2d 362 (9th Cir.) and King v. IRS, 688 F.2d 488 (7th Cir.) and

 disapproving Neufeld v. IRS, 646 F.2d 661 (D.C.Cir.).  26 U.S.C.A. s

 6103(a), (b)(2).


 Legislative history is used to clarify meaning of tax, not to create

 extrastatutory law.

  *154 **86 Appeal from the United States District Court for the District

 of Columbia (Civil Action No. 80-03239).

  Robert A. Seefried, Washington, D.C., for appellant.

  Jonathan Cohen, Atty., U.S. Dept. of Justice, of the Bar of the Supreme Court

 of Conn., pro hac vice, by special leave of the Court, with whom Glenn L.

 Archer, Jr., Asst. Atty. Gen., U.S. Dept. of Justice, Joseph E. diGenova, U.S.

 Atty., and Michael L. Paup, Richard W. Perkins and Murray S. Horwitz, Attys.,

 U.S. Dept. of Justice, Washington, D.C., were on brief, for appellee.

  Judith E. Bendich and Stephen K. Strong, Seattle, Wash., were on brief, for

 American Civil Liberties Union Foundation of Washington, amicus curiae, urging

 adherence to the interpretation adopted by the panel opinion in Neufeld v. IRS.

  *155 **87 David C. Vladeck and Alan B. Morrison, Washington, D.C., were

 on brief, for John L. Neufeld and Freedom of Information Clearinghouse, amici

 curiae, urging adherence to the interpretation adopted by the panel opinion in

 Neufeld v. IRS.



  Opinion of the Court filed by Circuit Judge SCALIA.

  Concurring opinion filed by Circuit Judge SILBERMAN.

  Dissenting opinion filed by Circuit Judge WALD, with whom Chief Judge ROBINSON

 and Circuit Judge MIKVA join.

  SCALIA, Circuit Judge:

  This is an appeal from the District Court's grant of summary judgment in favor

 of the Internal Revenue Service, in a Freedom of Information Act suit brought

 by the Church of Scientology under 5 U.S.C. s 552(a)(4)(B) (1982).  The only

 issue addressed by this en banc opinion is the meaning of the so-called Haskell

 Amendment, which excepts from the Internal Revenue Code's definition of

 nondisclosable "return information" "data in a form which cannot be associated

 with, or otherwise identify, directly or indirectly, a particular taxpayer."

 26 U.S.C. s 6103(b)(2) (1982).  Specifically, we consider whether to adhere

 to a 1981 panel decision of this court which held that that provision removes

 from the defined category of protected information all material which, either

 in its original form or as redacted in response to a FOIA request, does not

 disclose the identity of the taxpayer to whom it pertains.


  The facts of the present case are set forth in the panel opinion issued

 simultaneously with this opinion.  For present purposes, it suffices to recite

 that the central issue in the appeal is the adequacy of the IRS's search for

 requested records;  that one of the principal points bearing upon that issue is

 whether certain files could reasonably be excluded from the search as

 containing only "return information";  and that the latter point depends to a

 considerable extent upon whether redaction (specifically, elimination of

 portions of documents that would disclose the taxpayer's identity) removes the

 material from the protected category.

  [1][2] After the case had been briefed and argued before the assigned panel,

 the court en banc, on its own motion, requested supplemental briefing and, on

 December 5, 1985, heard oral argument limited to the following issue: [FN1]

      FN1. Judge Wald's dissent expresses concern over "the court's recent

     practice of issuing en banc opinions on legal issues, as opposed to

     concrete factual scenarios, see also Foster v. United States, 783 F.2d

     1082 (D.C.Cir.1986) (en banc)."  Dissent at 172 n. 1.  That concern must

     logically extend, of course--and should indeed have heightened

     application--to the court's common practice of rendering en banc decisions

     on isolated legal issues without en banc rehearing, by means of a so-

     called "Irons footnote" added to the panel opinion, reflecting the fact

     that departure from prior law of the circuit has been approved by the full

     court.  See, e.g., Telecommunications Research & Action Center v. FCC,

     750 F.2d 70, 75 n. 24 (D.C.Cir.1984);  In re:  Commodity Futures Trading

     Comm'n, 738 F.2d 487, 496 n. 19 (D.C.Cir.1984);  Irons v. Diamond, 670

     F.2d 265, 268 n. 11 (D.C.Cir.1981).  Indeed, it must logically extend to

     the even more venerable practice of en banc reconsideration of issued panel

     opinions limited to specific issues--a practice we indulged in only a few

     weeks ago.  See Northern Natural Gas Co. v. FERC, 780 F.2d 59

     (D.C.Cir.1986) (order granting rehearing en banc "for the limited purpose

     of deciding whether the Court should reconsider its holding in Panhandle

     Eastern Pipe Line Co. v. FERC, 613 F.2d 1120 (D.C.Cir.1979)").

     The practice of segregating legal issues requiring the attention of the

     full court from the remainder of the case reflects the fact that appellate

     review serves a dual purpose:  the correction of legal error and the

     establishment of legal rules for future guidance.  Only the latter is

     ordinarily worthy of the attention of the full court.  The dissent's

     perception that judges "typically" dispose of all the issues in a case, see

     Dissent at 172 n. 1, is simply not true at the second appellate level,

     where the law-clarifying function predominates.  The Supreme Court often,

     if not usually, grants certiorari only on one or more discrete points of

     law, and issues its opinions (in that sense) on "legal issues, as opposed

     to concrete factual scenarios."  En banc consideration (or Irons

     footnote disposition) effectively constitutes such second-level appellate

     review--at least where, as is the case here, the full court has before it

     the full text of a proposed panel opinion.  It would be especially perverse

     to abandon our efficient practice of limited en banc disposition just as

     our caseload has steeply increased, and as the size of the court has been

     expanded, magnifying the number of judge-hours devoted to each issue

     handled en banc.  The proposal to restrict "piecemeal" consideration would

     have the effect of making it inordinately difficult to alter prior law of

     the circuit or to correct panel decisions that adopt erroneous new rules.

   *156 **88 Should the Court adhere to the interpretation of 26

 U.S.C. s 6103(b)(2) adopted by the panel opinion in Neufeld v. IRS, 646 F.2d

 661, 665 (D.C.Cir.1981), or should it adopt a different interpretation, in

 particular that announced by the Seventh Circuit in King v. IRS, 688 F.2d

 488, 490-94 (7th Cir.1982)?

  Briefs amicus curiae were received from the American Civil Liberties Union

 Foundation of Washington and from Professor John L. Neufeld and the Freedom of

 Information Clearinghouse.


  In relevant part, 26 U.S.C. s 6103(a) provides as follows:

   Returns and return information shall be confidential, and except as

 authorized by this title--

   (1) no officer or employee of the United States,....

   shall disclose any return or return information obtained by him in any manner

 in connection with his service as such an officer or an employee or otherwise

 or under the provisions of this section....

  Willful violation of this provision is a felony.  26 U.S.C. s 7213(a)(1).

  "Return information" is defined in the statute as follows:

   (A) a taxpayer's identity, the nature, source, or amount of his income,

 payments, receipts, deductions, exemptions, credits, assets, liabilities, net

 worth, tax liability, tax withheld, deficiencies, over-assessments, or tax

 payments, whether the taxpayer's return was, is being, or will be examined or

 subject to other investigation or processing, or any other data, received by,

 recorded by, prepared by, furnished to, or collected by the Secretary with

 respect to a return or with respect to the determination of the existence, or

 possible existence, of liability (or the amount thereof) of any person under

 this title for any tax, penalty, interest, fine, forfeiture, or other

 imposition, or offense, and

   (B) any part of any written determination or any background file document

 relating to such written determination (as such terms are defined in section

 6110(b)) which is not open to public inspection under section 6110,

   but such term does not include data in a form which cannot be associated

 with, or otherwise identify, directly or indirectly, a particular taxpayer.

  26 U.S.C. s 6103(b)(2) (emphasis added).

  The last clause in the defining paragraph is the Haskell Amendment, so called

 because it was inserted into the committee-proposed bill through a floor

 amendment introduced by that Senator.  On the basis of that clause, the Ninth

 Circuit held in 1979 that data that do not identify a particular taxpayer

 because names, identifying numbers and other similar information have been

 deleted are not return information.  Long v. IRS, 596 F.2d 362 (9th

 Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1851, 64 L.Ed.2d 271

 (1980).  In a later case before this court in which the IRS had not briefed the

 question, the panel found it necessary to reach the issue and, without analysis

 of its own, followed what was at the time the only court of appeals

 precedent.  Neufeld v. IRS, 646 F.2d 661, 665 (D.C.Cir.1981).  In so doing,

 the panel observed that "[w]hile the IRS wishes to reserve the question of the

 proper statutory definition of return information for another day, it appears

 to concede, for this case only, that [no harmful error occurred] if in fact

 [the district court] employed the definition of return information articulated

 in Long."  Id. (footnote omitted).  Subsequently, the Seventh Circuit

 reached a conclusion different from Long, holding that the statute "protects

 from disclosure all non-amalgamated items listed in subsection **89 *157

 (b)(2)(A), and that the Haskell Amendment provides only for the disclosure of

 statistical tabulations which are not associated with or do not identify

 particular taxpayers."  King v. IRS, 688 F.2d 488, 493 (7th Cir.1982).  The

 newly emerged circuit conflict has induced us to reconsider the position stated

 in our 1981 panel decision.

  The starting point of analysis, of course, is the text of the provision at

 issue, which, we agree with the Seventh Circuit, is ill suited to achieve the

 result pronounced in Long.  It would be most peculiar to catalogue in such

 detail, in subparagraph (A) of the body of the definition, the specific items

 that constitute "return information" (e.g., "income, payments, receipts,

 deductions, exemptions, credits, assets, liabilities, net worth, tax liability,

 tax withheld, deficiencies, over-assessments, or tax payments, ... or any other

 data, received by, recorded by, prepared by, furnished to, or collected by the

 Secretary with respect to a return") while leaving to an afterthought the major

 qualification that none of those items counts unless it identifies the

 taxpayer.  Such an intent would more naturally have been expressed not in an

 exclusion ("but such term does not include ...") but in the body of the

 definition--by stating, for example, that "the term 'return information' means

 the following information that can be associated with or identify a particular

 taxpayer:  ...."  If the intended scope of the exclusion is as broad as Long

 holds, the structure of the provision is akin to defining mankind as "all

 mammals in the world, but excluding those that are not relatively hairless

 bipeds with the power of abstract reasoning."  While such a form of definition

 is conceivable, it would constitute "everyday language" (as the dissent

 characterizes it, Dissent at 174) only for one of Lewis Carroll's characters,

 and it hardly takes "talmudic dissection[]" or "microscopic scrutiny," id.,

 to reject it as implausible.

  The Long interpretation produces a similarly mindless consequence in

 subparagraph (B) of the definition of return information.  That subparagraph

 includes within the definition of return information IRS-written determinations

 and related background files that are not open to public inspection under

 s 6110.  The latter section excludes from the public inspection requirement

 not only identifying data, s 6110(c)(1), but many other matters, such as

 trade secrets, s 6110(c)(4), information prepared for the use of an agency

 regulating financial institutions, s 6110(c)(6), and (with respect to most

 written determinations) material relating to a taxpayer's change of annual

 accounting period, s 6110(g)(5)(B)(ii).  It would be absurd to incorporate

 these exclusions so precisely into the body of the definition of return

 information, and then, in the immediately following clause, to write all of

 them back out--except the identifying data exclusion (s 6110(c)(1)), which

 is not deleted by the Haskell exclusion but merely rendered entirely redundant.

  We also agree with the Seventh Circuit that the formulation of the Haskell

 provision itself suggests something other than merely the absence of

 identifying information.  It would be strange to express the latter thought by

 excluding "data in a form which cannot be associated with, or otherwise

 identify ... a particular taxpayer" (emphasis added).  The emphasized phrase

 would be superfluous for that purpose, as reading the provision without it will

 demonstrate.  A more natural formulation for the purposes which Long assigns

 would be similar to that contained in the provision of FOIA that "an agency may

 delete identifying details," 5 U.S.C. s 552(a)(2) (emphasis added);  or

 similar to the formulation used elsewhere in this same Subchapter of the

 Internal Revenue Code, that no publication shall "permit ... information ... to

 be associated with, or otherwise identify, directly or indirectly, a particular

 taxpayer," 26 U.S.C. s 6108(c).  Moreover, it is curious usage to describe

 an item of return information (a particular taxpayer's tax "payments," for

 example) as having one "form" when made public in a document that includes the

 taxpayer's name, and taking a different "form" when made public in the very

 same document with only the name deleted.

  *158 **90 What is suggested by the language of the provision itself is

 strongly confirmed by other provisions of s 6103.  Subsections 6103(f)(1) &

 (2) and subsection 6103(f)(4)(A) permit disclosure of return information to

 certain committees of Congress, and subsection 6103(f)(4)(B) to the full Senate

 or House;  under all four provisions, however, unless the taxpayer consents in

 writing the disclosure must be made to the pertinent committee or house

 "sitting in closed executive session" when it concerns "return information

 which can be associated with, or otherwise identify, directly or indirectly, a

 particular taxpayer."  If Long's interpretation of the Haskell Amendment is

 adopted, the exception in these provisions completely consumes the rule.  That

 is to say, if return information consists, as Long says, of nothing but

 identifying data, then whenever it is provided under these provisions the

 receiving committee or house must sit in executive session.  Quite plainly,

 these provisions contemplate return information that is nonidentifying. [FN2]

      FN2. The dissent refers to all the strange textual consequences of the

     Long interpretation as "stylistic superfluity," which it equates in

     character with textual imperfections that remain under our interpretation

     of the amendment.  Dissent at 176-.  The latter, however, consist of

     nothing more than repetition, in later sections, of the exemption which

     (under our interpretation) the Haskell Amendment has already provided.

     This cannot reasonably be compared with the Alice-in-Wonderland

     definitional structure, see supra at 157, the pointless incorporation in

     the definition of exceptions that have no application, see supra at 157,

     and the provisions for open meetings that can never occur, see supra at

     157-158, that are the consequences of Long.  The dissent's

     indiscriminate totaling of textual imperfections also happens to be

     inaccurate.  One of the "superfluities" which it attributes to our

     interpretation is not that, since the section in question, s 6108(c), is

     not specifically tied to the term "return information."  Moreover, both of

     the minor imperfections in our interpretation subsist under the Long

     interpretation as well, and the dissent seems to have miscounted the

     distinctive problems of Long we have discussed.  The simplistic "score"

     is not 5-3, as the dissent asserts, but 9-2.

  In addition to clear textual indications, rejection of the Long

 interpretation is suggested by assessment of plausible legislative intent.  It

 is of course true, as two of the amici have asserted, that there is no reason

 "why Congress would have wanted to forbid the disclosure of information which

 would not threaten the privacy of individual taxpayers."  Brief of Neufeld and

 Freedom of Information Clearinghouse at 5.  But it is also true that the threat

 to privacy is not entirely eliminated by agency and (ultimately) judicial

 assessment that certain deletions in response to a FOIA request will suffice to

 conceal the taxpayer's identity.  The protection afforded by such assessment is

 always problematic, not only because of the risk of human error, but also

 because the assessment depends to a large extent upon uninformed estimations as

 to what data the requester possesses.  Consider, for example, a FOIA request

 for the amounts and beneficiaries of all charitable deductions claimed by

 taxpayers within a particular postal ZIP code area during a particular tax

 year.  That information would normally not identify the charitable gift of any

 particular taxpayer;  but it would do so if the requester had been told by his

 neighbor that the latter made a charitable gift last year of $2,775.

  [3] For most information possessed by the government, Congress has

 determined that the risk of occasional unknowing disclosure of facts entitled

 to be withheld under FOIA is outweighed by the benefits of openness.  But it

 has not made that judgment for all information.  See, e.g., 50 U.S.C.A. s

 431 (West Supp.1985) (exempting Central Intelligence Agency operational files

 from FOIA).  It is significant that FOIA's nonidentification protection has not

 been considered adequate for the other major category of personal information

 that the government directs all its citizens to provide:  Under the same

 Exemption 3 at issue here, 5 U.S.C. s 552(b)(3), all census data are

 protected from disclosure, whether or not they identify the individual to whom

 they pertain.  See Baldridge v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71

 L.Ed.2d 199 (1982).  We think similarly heightened protection was intended with

 regard to tax information, in order to encourage the full, voluntary self-

 assessment *159 **91 of taxes upon which our internal revenue system

 largely depends.

  The intent to provide this increased assurance of confidentiality is conveyed

 by the detailed provisions of s 6103 rigidly restricting the use of tax

 information within the government itself, and by the severe criminal penalty

 (up to five years imprisonment) for unlawful disclosure.  See 26 U.S.C. s

 7213(a)(1).  It is particularly apparent, however--and the incompatibility of

 the Long interpretation is particularly clear--from the provisions of

 s 6110, which set forth procedures for public inspection of IRS written

 determinations and related background files.  Unlike most governmental

 information obtainable under the Freedom of Information Act, which one or more

 members of the public may be interested in for reasons that amount to no more

 than curiosity, there is special reason for making written determinations

 public, since without such a requirement agencies could develop "secret law."

 Thus, FOIA requires such determinations not merely to be provided upon written

 request, but to be made available in the agency's reading room, and to be

 reflected in a current index that is publicly distributed.  5 U.S.C. s

 552(a)(2).  Yet in the case of tax information, s 6110 provides greater

 protection against improper disclosure of this publicly essential information

 than FOIA provides against disclosure of data in which there is no reason to

 posit any public need to know.  Specifically, the subject of the written

 determination is given a right to prior written notice of the Secretary's

 intention to disclose, an administrative remedy to prevent the disclosure, a

 cause of action in the Tax Court if that remedy is unsuccessful, a right to

 intervene in any action seeking disclosure, and even a cause of action for

 damages in the Claims Court for improper disclosure.  26 U.S.C. s 6110(f),

 (i).  In the judicial proceedings to restrain disclosure or to require further

 disclosure, there is no requirement similar to the provision of FOIA that "the

 burden is on the agency to sustain" the withholding.  See 5 U.S.C. s

 552(a)(4)(B).  It would be absurd to provide such guarantees against disclosure

 of identifying information in the context of written determinations while

 relying upon no more than the FOIA protections (through Long's

 interpretation of the Haskell Amendment) when a request for less publicly

 important return information is received.

  The dissent criticizes our use of standard textual analysis on the ground

 that, while it may be appropriate where Congress "labored arduously over each

 choice of word and each comma," it is improper "when the legislative history

 shows that a provision was injected into the bill at the tail end of the

 process."  Dissent at 174.  We need not pause to consider the theoretical

 deficiencies of such an approach to statutory construction, since it is in any

 case not properly applicable here.  The (ill-considered) Haskell Amendment was

 not adopted separately and distinctly from the other provisions that we seek to

 reconcile with it.  As we noted earlier, it was not an amendment to a

 preexisting law, but an amendment to the bill as originally presented on the

 floor.  Congress did not pass into law the Haskell amendment by itself, but as

 part and parcel of an exceedingly detailed and complex legislative scheme, on

 which it had "labored arduously over each choice of word and each comma."

 Since all the provisions were enacted simultaneously, there is no plausible

 justification for focusing on the hastily considered nature of one of them and

 ignoring the carefully crafted character of the remainder.

  In fact, far from militating in favor of the broad Long interpretation, the

 last-minute and cursory manner in which the Haskell Amendment was proposed and

 adopted greatly augments the implausibility of that interpretation.  The

 massive effect of the amendment, if Long is correct, was to change the scope

 of protection from all "return information," as carefully and expansively

 described in s 6103(b)(2), to merely all such information which would

 identify the taxpayer.  That change would not only make superficially

 nonidentifying information available to FOIA requesters, and thereby frustrate

 the carefully drawn *160 **92 protections against such disclosure

 contained in s 6110, but it would also allow such information to be

 circulated freely within the government (since the defined term "return

 information" is central to both those provisions governing public disclosure

 and those governing inter-agency dissemination).  We are asked to believe that

 this fundamental change in the committee proposal that the members of the

 Senate had (presumably) studied was made by this brief proviso at the last

 minute, without any statement by its sponsor that it had an effect upon

 anything except statistical studies and compilations of data, see infra at 161,

 without a floor vote (it was adopted by consent), without dissent from even a

 single member of the Senate, and indeed without any comment by any members of

 the body who might have been present except Senator Long's remark:  "Mr.

 President, I will be happy to take this amendment to conference.  It might not

 be entirely necessary, but it might serve a good purpose."  122 CONG.REC.

 24,012 (1976).  Rather than embrace this implausibility it would make more

 sense--if one were to favor the dissent's approach of using supposed inadequacy

 of consideration as a basis to ignore, rather than seeking to reconcile,

 textual conflicts--to endorse the position urged by the government, to wit,

 that all the befuddled Congress meant to do (never mind that the text will not

 bear it, see infra at 162) was to add the tax model to the disclosure

 exceptions of s 6108.


  [4][5] It is much easier to discern what the Haskell Amendment does not

 mean (viz., what Long suggests) than what it does.  If, as we have

 concluded, it does not exclude from the definition of return information all

 nonidentifying data, what particular nonidentifying data does it exclude?

 Again we think the key is the crucial phrase "in a form."  It is significant

 that this phrase is not contained in the provisions discussed earlier which

 seek--in language otherwise almost identical to the Haskell Amendment--to

 describe all identifying data.  See ss 6103(f)(1) & (2);  6103(f)(4)(A) &

 (B).  But it is contained in two other portions of s 6103.  Subsection (j),

 entitled "Statistical use," permits disclosure of return information (1) to the

 Secretary of Commerce "for the purpose of, but only to the extent necessary in,

 the structuring of censuses and national economic accounts and conducting

 related statistical activities authorized by law";  (2) to the Chairman of the

 Federal Trade Commission, "for the purpose of ... administration ... of legally

 authorized economic surveys of corporations";  and (3) to the Department of the

 Treasury, "for the purpose of ... preparing economic or financial forecasts,

 projections, analyses, and statistical studies and conducting related

 activities."  The last paragraph of the subsection, entitled "Anonymous form,"


   No person who receives ... return information under this subsection shall

 disclose such ... return information to any person other than the taxpayer to

 whom it relates except in a form which cannot be associated with, or otherwise

 identify, directly or indirectly, a particular taxpayer.

  s 6103(j)(4) (emphasis added).  In this context, the meaning of the

 emphasized phrase seems clear:  It is evidently meant to permit the publication

 and distribution of the statistical studies, forecasts and surveys that are the

 purpose of the permitted disclosures to Commerce, the FTC and Treasury.  The

 phrase envisions, in other words, not merely the deletion of an identifying

 name or symbol on a document that contains return information, but agency

 reformulation of the return information into a statistical study or some other

 composite product--presumably on the theory that such reformulation gives added

 assurance that a taxpayer's identity will in fact not be disclosed.

  The same meaning fits the other instance in which the phrase "in a form"

 appears as a disclosure limitation in s 6103.  Subsection (i)(7)(A) provides

 that return information "shall be open to inspection by, or disclosure to,

 officers and employees of the *161 **93 General Accounting Office" for the

 purpose of conducting legally required audits.  Such officers and employees are

 prohibited, however, from disclosing to others "return information ... in a

 form which can be associated with, or otherwise identify, directly or

 indirectly, a particular taxpayer."  This seems designed to assure that the

 reformulations of raw return information in the audit reports prepared by GAO

 officers and employees, if they are to be made public, be carefully devised to

 avoid the disclosure of identifying data.  Once again the phrase is associated

 with a reformulation of the return information.  Significantly, the phrase is

 not used where the subject of the provision is not "return information" but

 material that has already been reformulated.  The concluding provision of

 s 6108 prescribes that no publication or disclosure of the statistical

 studies and compilations authorized by that section "shall in any manner permit

 the statistics, study, or any information so published, furnished, or otherwise

 disclosed to be associated with, or otherwise identify, directly or indirectly,

 a particular taxpayer."  26 U.S.C. s 6108(c).

  [6] The United States has argued in this appeal that the only type of

 reformulation that the Haskell Amendment exempts is that envisioned by the last

 mentioned section.  The consequence of this interpretation, of course, is that

 the Haskell Amendment becomes substantively superfluous, amounting to no more

 than a reminder in the definition section that s 6108 permits disclosure of

 statistical data.  That alone may not be fatal since, as far as we can discern,

 any interpretation of the amendment, including the one we adopt, creates some

 redundancy.  The insuperable problem, however, is that there is absolutely no

 textual basis for limiting the phrase "in a form" to the precise types of

 reformulation set forth in s 6108.  It is not likely that such a surgically

 exact result would be described by that vague term, rather than by the simple

 and precise statement that return data "does not include statistical studies

 and compilations prepared under authority of s 6108."  To support the

 suggested limitation, the government resorts to what the Seventh Circuit in

 King called the "scant legislative history" of the Haskell Amendment, 688

 F.2d at 492, consisting principally of the following statement by Senator

 Haskell on the Senate floor:

   [T]he purpose of this amendment is to insure that statistical studies and

 other compilations of data now prepared by the Internal Revenue Service and

 disclosed by it to outside parties will continue to be subject to disclosure to

 the extent allowed under present law.  Thus the Internal Revenue Service can

 continue to release for research purposes statistical studies and compilations

 of data, such as the tax model, which do not identify individual taxpayers.

   The definition of "return information" was intended to neither enhance nor

 diminish access now obtainable under the Freedom of Information Act to

 statistical studies and compilations of data by the Internal Revenue Service.

 Thus, the addition by the Internal Revenue Service of easily deletable

 identifying information to the type of statistical study or compilation of data

 which, under its current practice, has been subject to disclosure, will not

 prevent disclosure of such study or compilation under the newly amended

 section 6103.  In such an instance, the identifying information would be

 deleted and disclosure of the statistical study or compilation of data be made.

  688 F.2d at 493 (quoting 122 CONG. REC. 24,012 (1976)).  As King

 noted, this statement was made in response to a question whether the IRS could

 avoid disclosing statistical studies simply by adding identifying information,

 and thus was not necessarily intended as a comprehensive expression of the

 purpose of the amendment (though it assuredly adds no support to the textually

 implausible Long interpretation).  Even disregarding that limitation,

 however, the statement simply does not support the government's narrow

 construction.  It refers not only to "statistical studies" but

 **94 *162 also to "compilations of data, such as the tax model."  The

 latter is not a statistical tabulation. At the time the Haskell Amendment was

 adopted, it appears to have been an actual return with identifying details

 eliminated. Several years later, perhaps out of recognition that the 1976

 legislation no longer permitted such redacted material to be made public, it

 was altered to consist of a reformulated return, with substitution of new

 figures for certain items-a partly factual, partly fictional return, so to

 speak. [FN3]  There is no way that the tax model can be brought within the

 publication exemptions of s 6108.  Even if the provision of s 6108(b)

 which permits preparation and disclosure of "special statistical studies and

 compilations" is interpreted in such fashion that the adjective "statistical"

 does not modify "compilations" (which seems to us strained), the tax model--

 which the Secretary had prepared and made public for years before the Haskell

 Amendment and has continued to prepare and make public since--could not

 possibly come within that provision, since it is by no stretch of the

 imagination a "special" compilation prepared "upon written request by any party

 or parties," as s 6108(b) requires. [FN4]

      FN3. The three sentences preceding this footnote sign did not appear in

     our original opinion, as issued in slip form. There the corresponding

     passage read as follows:

     The latter is not a statistical tabulation but a sample return, derived

     from an actual return but reformulated to substitute new figures for

     certain items-a partly actual, partly fictional return, so to speak.

     The revision was made to correct a factual inaccuracy brought to our

     attention by a post-decision motion of amicus American Civil Liberties

     Union of Washington, which noted that the description of the tax model

     presented to us by the government in oral argument and reflected in the

     foregoing passage was accurate for the period beginning about 1980, but was

     not accurate as of 1976, when the model was an actual return with

     identifying details eliminated.

     The dissent's suggestion, Dissent at 176 n. 7, that our decision turned

     upon this mistaken factual assumption is demonstrably wrong. Our rejection

     of Long, set forth in Part II of this opinion, was made and continues to

     be made without any reference to this snippet of legislative history. And

     the only reason for raising it in this Part III of our opinion is to refute

     the government's position, which relies upon it. The factual inaccuracy in

     the case as originally presented to us shows the wisdom of relying upon

     the text and structure of the statute rather than this statement by a

     single senator as a means of ascertaining the Congress's intent. We have no

     way of knowing whether Senator Haskell's understanding of the tax model-

     much less that of his colleagues, if any of them relied upon his remark-

     comported with our original understanding or rather with what we now know.

     The mere term "Tax Model" assuredly does not suggest a redacted actual


      FN4. The absence of any textual basis in s 6108 for publication of the

     tax model seems to us a complete response to the concurring opinion's

     contention that Chevron, U.S.A., Inc. v. Natural Resources Defense

     Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), requires us

     to defer to the agency's interpretation of the statute.  There is some

     question, to begin with, whether an interpretive theory put forth only by

     agency counsel in litigation, which explains agency action that could be

     explained on different theories, constitutes an "agency position" for

     purposes of Chevron.  Even granting that principle, however, it cannot

     possibly have application where counsel's interpretation in fact does not

     explain agency action but is, to the contrary, incompatible with the

     agency's settled course of conduct.  That is the situation here, since the

     IRS has regularly released, and plans to continue to release, the tax

     model.  Nor does it suffice to appeal to Senator Haskell's explicit

     reference to the tax model as the agency's justification for this singular

     departure from its (supposed) s 6108 theory.  Legislative history is

     used to clarify the meaning of a text, not to create extra-statutory law.

     If it can ever be the basis for plainly departing from the text, it

     assuredly cannot be so when an interpretation that honors both the text and

     the history is available.

     The concurrence claims that agency counsel did not take the position that

     the Haskell Amendment referred exclusively to s 6108, but rather

     maintained that the phrase "data in a form" in s 6103 referred

     exclusively to the statistical studies covered by s 6108 and to the tax

     model.  Concurrence at 171.  The oral argument contained the following


     [COUNSEL]:  ... [I]t is certainly arguable that the Haskell Amendment is

     redundant in light of 6108.


     QUESTION:  ... Your interpretation of the Haskell Amendment is s 6108?

     [COUNSEL]:  That's right and that is why Senator Long didn't think it was

     all that necessary....

     Corrected Tr. of Oral Argument at 28 (Dec. 5, 1985).  This concession was

     not, as the concurrence contends, a matter of government counsel's "hav

     [ing] been momentarily caught off guard by the court's vigorous

     questioning."  Concurrence at 171 n. 10.  To the contrary, what prompted

     the concession (and what prompted the questioning) was the carefully

     considered and frequently repeated assertion in the IRS's brief to the full

     court that the Haskell Amendment covered only "information ... amalgamated

     into statistical data," Supp.Brief for Appellees at 4, 6, and information

     "likely rendered anonymous by amalgamation into general statistics," id.

     at 9;  and that the purpose of the Amendment was "to permit the Internal

     Revenue Service to continue its collection and release of general

     statistics," id. at 11, and "to permit the release of historically

     provided statistical data compiled from return information," id. at 20.

     These expressions are subject to no interpretation other than that the

     Haskell Amendment excludes from the definition of "return information" only

     the statistical studies and compilations already covered by s 6108.

     The problem counsel faced at oral argument was reconciling this theory with

     the embarrassing fact (first brought to the IRS's attention, evidently, by

     the Appellant's Supplemental Brief, filed simultaneously with its own) that

     the tax model is not a statistical study or compilation.  We thought, in

     light of the above-quoted concession at oral argument, that counsel was

     seeking to mend his hold by adhering to the IRS's original theory of

     equivalence between the Haskell Amendment and s 6108, but explaining the

     tax model as a legislative-history-prescribed expansion of what the word

     "statistics" includes.  The concurrence chooses to interpret the discussion

     as utterly abandoning the position that "data in a form" means statistics

     only (s 6108) and embracing instead the view that it means statistics

     plus (exclusively) the tax model.  This merely substitutes for the vice of

     nontextual amendment to s 6108 the vice of nontextual amendment to

     s 6103, since in no way can the crucial words "data in a form" be

     categorically limited to statistical studies, the tax model, and nothing

     else.  (Nor is there any apparent reason why Congress should assume that,

     of all conceivable nonstatistical amalgamations, only the tax model would

     be sufficiently helpful and would sufficiently secure anonymity to justify

     publication.)  Whatever position counsel was taking, one thing is clear:

     it is impossible to find here the sort of clear and consistent agency view

     (even as purportedly expressed by counsel) that must be given deference.

  *163 **95 We may add that, for similar reasons, we find no support in

 text or legislative history for the Seventh Circuit's statement in King

 that "the Haskell Amendment provides only for the disclosure of statistical

 tabulations which are not associated with or do not identify particular

 taxpayers."  688 F.2d at 493 (emphasis added).  We hold, more broadly than

 King, that as used in s 6103(b)(2) the phrase "data in a form which

 cannot be associated with, or otherwise identify, directly or indirectly, a

 particular taxpayer" requires--in addition to the fact of nonidentification--

 some alteration by the government of the form in which the return information

 was originally recorded.  That reformulation will typically consist of

 statistical tabulation or of some other form of combination with other data so

 as to produce a unitary product that disguises the origin of its components (as

 in the tax model).  We need not define, for purposes of the present appeal, all

 other manners of reformulation that may be included. [FN5]  It suffices to say

 that the mere deletion of the taxpayer's name or other identifying data is not

 enough, since that would render the reformulation requirement entirely

 duplicative of the nonidentification requirement.

      FN5. Given the purpose of the reformulation requirement, however--to wit,

     the increased assurance of anonymity--we can readily opine that it does not

     include the dissent's example of copying the same data "onto a fresh piece

     of paper, perhaps in narrative style."  Dissent at 175.

  We do not pretend that the interpretation we have given the Haskell Amendment

 causes it to fit with perfect consistency into the body of Chapter 61 or even,

 less ambitiously, s 6103.  It causes the provisions of s 6103(j)(4) and

 s 6103(i)(7)(A), discussed above, to be superfluous.  But that superfluity

 is nothing beside the textual and policy absurdities produced by the

 interpretation in Long--and exceeds the superfluity produced by the

 government's interpretation only because the latter inexplicably limits its

 "statistical" restriction to the statistics referred to in s 6108.  As we

 have construed the Haskell Amendment, it creates no more disruption of the

 carefully drawn statutory scheme than is commonly produced by the dread genre

 of floor amendment;  indeed, with a scheme as detailed as this it is remarkable

 that the dislocations are not greater.  We are persuaded, in any case, that the

 meaning we have assigned is the meaning most faithful to the text, most

 compatible with the remainder of the legislation, and most supportable by a

 plausible legislative intent.

                                       * * *

  Application of our holding to the facts of the present case, and the other

 issues presented by the instant appeal, are left to the disposition of the

 panel, whose opinion is issued simultaneously with this.

  So ordered.

  *164 **96 SILBERMAN, Circuit Judge, concurring:

  The court confronts in this case a difficult issue of statutory

 interpretation.  The puzzle begins with 26 U.S.C. s 6103 (1982), which

 provides generally for nondisclosure of "return information" in the interest of

 taxpayer confidentiality.  All sides agree that the heart of this controversy

 is the proper interpretation of the Haskell amendment, which authorizes the

 agency to release material that otherwise could not be released because it

 would be (but for the Haskell amendment) "return information."  In other words,

 what does the phrase "data in a form which cannot be associated with or

 otherwise identify, directly or indirectly, a particular taxpayer" mean?  But I

 believe there is another question presented of equal importance:  Did Congress

 intend that the IRS's interpretation of what constitutes such "data in a

 form ..." be given deference by the judiciary?

  I think it must be conceded that Section 6103 is, at the very least,

 ambiguous as to the issue now before the court.  Nothing in the language of the

 statute itself yields a decisive understanding as to whether Neufeld or

 King is a more faithful rendering of the statute's purpose.  The legislative

 history is sparse and inconclusive on the Neufeld/King question.  Against the

 backdrop of this ambiguity the parties argue for divergent interpretations of

 this provision.  The agency argues that the Haskell amendment means that data

 must be amalgamated or combined in a different form (Appellee's Supp.Br. at 5

 n. 4) and specifically points to data "rendered anonymous by amalgamation into

 general statistics" as satisfying that test (Id. at 9). [FN1]  The agency

 relies heavily on the adoption of this interpretation by the Seventh Circuit

 in King and further argues that a broader definition--such as that adopted

 by the majority--apart from creating certain anomalies and inconsistencies in

 the statutory scheme, presents troublesome administrative problems.  The

 Secretary, we are told, has grave difficulty in determining the ability of one

 who requests information to "correlate facially nonidentifying data with

 specific taxpayers."  Appellees' Supp.Br. at 13.  The Church, on the other

 hand, argues that any document in the IRS files that contains return

 information must be disclosed provided that identifying information is first

 redacted.  Through the majority opinion, this court rejects as excessively

 narrow the agency's construction of the statute and offers yet another

 construction.  It concludes that the Haskell amendment exempts from the general

 rule of nondisclosure nonidentifying return information that has also

 undergone "agency reformulation ... into a statistical study or some other

 composite product...."  Maj.Op. at 160 (emphasis in original).  Each of these

 interpretations is, in my view, a reasonable construction of a difficult

 statute, but I disagree with the majority's decision to treat its own

 construction as authoritative.  I believe the majority's approach oversteps the

 limitations on the court's proper role as defined in Chevron U.S.A. Inc. v.

 Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

 L.Ed.2d 694 (1984).

      FN1. The agency's brief did not contend that such statistical information

     was necessarily limited to the statistical compilations described in

     Section 6108, nor do I.  And at oral argument agency counsel reiterated

     that the tax model would be included within the agency's construction of

     the Haskell amendment, as the King court had concluded in 1982.  King

     treated the tax model as a statistical tabulation.  688 F.2d at 493.  In

     light of the King discussion I fail to understand the majority's

     "surprise" theory.  Maj.Op. at 162 n. 3.

  The message of Chevron is emphatic.  A court's duty in matters of statutory

 construction is to give effect to congressional intent.  If that intent is not

 precisely apparent, however,

   the court does not simply impose its own construction on the statute, as

 would be necessary in the absence of an administrative interpretation.  Rather,

 if the statute is silent or ambiguous with respect to the specific issue, the

 question for the court is whether the agency's answer is based on a permissible

 construction of the statute.

  Id. at 843 (footnote omitted).  Beyond this we cannot go.

  I believe Chevron's instruction applies to the issue of statutory

 construction now before the court.  Section 6103(b)(2), set out in full in

 the majority opinion at page 5, defines return information by enumerating

 several different categories of information, but qualifying the enumeration

 with the words of the Haskell amendment "but such **97 *165 term does not

 include data in a form which cannot be associated with, or otherwise identify,

 directly or indirectly, a particular taxpayer."  26 U.S.C. s

 6103(b)(2) (1982).  The words of the Haskell amendment seem to me to cry out

 for application of the doctrine of deference expounded in Chevron.  No one,

 it would seem, is better qualified than the Secretary to decide whether certain

 classes of information may be released in compliance with the Haskell



  Before proceeding, I must address a question that the majority raises without

 answering--"whether an interpretive theory put forth only by agency counsel in

 litigation, which explains agency action that could be explained on different

 theories, constitutes an 'agency position' for purposes of Chevron."

 Maj.Op. at 162 n. 3.  I think it is much too late to question whether the

 construction of Section 6103(b)(2) urged by agency counsel in this case

 really represents the IRS's position.  We know that the IRS has been advancing

 its interpretation in courts throughout the country at least since 1982, when

 it persuaded the Seventh Circuit in King to adopt its position, and perhaps

 even before then.  To suggest in these circumstances that the King analysis

 is not an "agency position" is to imply that IRS counsel are mavericks,

 disembodied from the agency that they represent.  I reject that supposition.

 See Ashland Oil, Inc. v. FTC, 548 F.2d 977, 984-85

 (D.C.Cir.1976) (MacKinnon, J., dissenting).

  The precept that the agency's rationale must be stated by the agency itself

 stems from proper respect for the separation of powers among the branches of

 government.  In the seminal case of SEC v. Chenery Corp., 318 U.S. 80, 63

 S.Ct. 454, 87 L.Ed. 626 (1943), the Court explained that "a judicial judgment

 cannot be made to do service for an administrative judgment."  Id. at 88, 63

 S.Ct. at 459.  Similarly, in Investment Co. Inst. v. Camp, 401 U.S. 617, 91

 S.Ct. 1091, 28 L.Ed.2d 367 (1971), the Court declined to defer to agency

 counsel's interpretation, noting that "Congress has delegated to the

 administrative official and not to appellate counsel the responsibility for

 elaborating and enforcing statutory commands."  Id. at 628, 91 S.Ct. at

 1097.  In these cases, the Supreme Court declined "to substitute [its own] or

 counsel's discretion for that of the [agency]" because to do so would be

 "incompatible with the orderly functioning of the process of judicial review.

 This is not to deprecate, but to vindicate ... the administrative process, for

 the purpose of the rule is to avoid 'propel[ling] the court into the domain

 which Congress has set aside exclusively for the administrative agency.' "

 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169, 83 S.Ct.

 239, 246, 9 L.Ed.2d 207 (1962) (quoting SEC v. Chenery Corp., 332 U.S.

 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (citation omitted)

 (Chenery II)).  In other words, the doctrine developed as a manifestation of

 judicial restraint.  If courts were to accept an agency counsel's position that

 significantly differed from the agency's position, they would in effect

 substitute a judicial interpretation for the agency's.

  The doctrine has been applied in a variety of cases.  Courts have rejected as

 inadequate agency counsel's articulation of a statutory interpretation when

 that interpretation has been inconsistent with a prior administrative

 construction, see Securities Indus. Ass'n v. Board of Governors of the Fed.

 Reserve Sys., 468 U.S. 137, 104 S.Ct. 2979, 2983-84, 82 L.Ed.2d 107 (1984);

 Pitzak v. OPM, 710 F.2d 1476, 1479 n. 2 (10th Cir.1983);  when the record

 evidence before the court demonstrates no link between counsel's interpretation

 and administrative practice, Alaniz v. OPM, 728 F.2d 1460, 1465

 (Fed.Cir.1984);  or when agency counsel's interpretation is revealed as no more

 than a "current litigating position."  Ames v. Merrill Lynch, Pierce,

 Fenner & Smith, Inc., 567 F.2d 1174, 1177 n. 3 (2d Cir.1977);  see McMillan &

 Peterson, "The Permissible Scope of Hearings, Discovery, and Additional

 Factfinding During Judicial Review of Informal Agency Action," 1982 Duke

 L.J. 333, 363 n. 163. [FN2]  And in Investment Co. Inst. v. Camp, the

 Supreme Court declined *166 **98 to credit agency counsel's statutory

 interpretation, offered in support of an agency regulation, where the

 Comptroller had "adopted no expressly articulated position at the

 administrative level as to the meaning and impact" of the relevant statutory

 provisions.  401 U.S. at 627, 91 S.Ct. at 1097.  Those circumstances are not

 present in this case, however.  The construction of the Haskell amendment was

 not even a central issue in this case in its administrative phase before the

 agency.  There was no need then for the agency to set forth its position on

 that issue.  It was not until the case came before the district court that the

 issue arose in any form.  There the Church argued that in light of Neufeld,

 which had been decided during the district court litigation, the IRS could not

 tenably maintain that it need not even search files known to contain return

 information.  The IRS, bound, of course, by the Neufeld court's construction

 of the Haskell amendment, argued to the district court that since the Church's

 request identified the taxpayer, "no information could be released by the

 Service that would be anonymous."  Defendants' Memorandum in Reply to

 Plaintiff's Statement of Points and Authorities in Opposition to Defendants'

 Motion for Summary Judgment at 3.  On appeal before the D.C. Circuit panel, the

 IRS acknowledged that it was bound by Neufeld, but urged the court to

 reconsider Neufeld in light of King.  Thus, at the first moment in the

 case when it was appropriate and relevant for the IRS to articulate its

 construction of the statute, it did so.  En banc consideration of the issue


      FN2. The notion that deference should not be accorded if the agency's

     interpretation appears to be no more than a "current litigation position"

     suggests a slightly different but related variation on the original

     doctrine.  But the IRS has, as far as I can tell, always sincerely asserted

     the King interpretation whenever it was appropriate to do so.

  What is clear from all this is that the King analysis is in no way

 inconsistent with the basis for the agency's decision in the administrative

 appeal.  See Appellee's Panel Br. at 24 n. 11.  This is not a case like

 Investment Co. Inst. v. Camp.  In that case, the Comptroller of the

 Currency, to whom Congress had only recently reassigned regulatory

 responsibility for national banks' trust activities, adopted, three decades

 after enactment of the Glass-Steagall Act, a regulation that departed from a

 long-settled interpretation of the statute.  See 401 U.S. at 621-22, 91

 S.Ct. 1094-95.  The Comptroller plainly neglected to furnish an appropriate

 rationale for his actions at a stage in the proceedings where there was a

 compelling need to articulate a link between the statutory provisions and the

 new regulation.  The time to provide a statutory interpretation that underpins

 a newly promulgated rule that sweeps away earlier interpretations of the

 statute is obviously at the time of the rulemaking.  In informal administrative

 adjudicative proceedings that evolve into federal court litigation, by

 contrast, the issues may well be shaped and sharpened throughout the

 proceedings.  I think it is enough that the agency, through its counsel, set

 forth its interpretation of the statute at the first moment when it was

 appropriate and relevant to do so.

  Were the rule to be otherwise--were the courts to withhold deference unless an

 agency asserted its interpretation of a statute in a formal adjudication or

 agency rulemaking--we would be creating a strong incentive for government

 agencies and departments to undertake their business strictly through formal

 procedures.  Although judicial review of administrative action has seemed in

 recent times to push in that direction, I doubt that much good can come of this

 trend or, more importantly, that it is justified by congressional direction.

 See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,

 Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).  We should take care

 that a doctrine developed to restrain the judiciary not be transformed to serve

 as a justification for excessive judicial intervention.

  In any event, if this court rejects King on the unwarranted assumption

 that King is not the IRS's "true" interpretation of the Haskell amendment,

 the agency presumably could undercut the court's holding merely by taking some

 more formal step to adopt King as the Commissioner's interpretation of the

 statute.  This strikes me as an unseemly institutional pas de deux. [FN3]

      FN3. If the agency were formally to adopt the King position, let us say

     through a regulation or interpretive rule, it would surely be entitled to

     deference before other circuits that have not as yet faced the need to

     interpret the Haskell amendment.  But I really see no inherent reason why

     it would not be entitled to deference in this court in a new proceeding as

     well.  That prospect suggests that if the majority is uncertain as to

     whether the King analysis is actually the IRS's position, it should

     order the case remanded to the agency to allow what it regards as an

     adequate demonstration to that effect.

                                    *167 **99 II

  FOIA's general policy favors disclosure, but the statute also recognizes nine

 categories of exemptions from the general rule of disclosure.  One of the

 exemptions, found at Section 552(b)(3), provides that

   (b) This section does not apply to matters that are ...

   (3) specifically exempted from disclosure by statute (other than section 552b

 of this title) provided that such statute (A) requires that the matters be

 withheld from the public in such a manner as to leave no discretion on the

 issue, or (B) establishes particular criteria for withholding or refers to

 particular types of matters to be withheld;

  5 U.S.C. s 552(b)(3) (1982).

  Thus, the language of Section 552 exempts statutes such as Section 6103

 [FN4] from "[t]his section," which I take to mean the entire Section 552 in

 the absence of any other plausible reference.  But Section 552 contains not

 only the disclosure requirements;  it also contains the provision for de novo

 judicial review.  While it is obvious that materials covered by exemption 3 are

 exempted from the disclosure requirement of Section 552, mere assertion that

 requested documents are covered by an exemption 3 statute will not serve to

 immunize items from disclosure.  The de novo review section of FOIA requires

 courts to examine withheld documents to determine whether they are in fact

 covered by an exemption 3 statute.  But that cannot possibly mean that the law

 applied in those proceedings is other than that embodied in the exemption 3

 statute.  That is to say, the definition or scope of "matters" covered by the

 exemption 3 statute must derive from the exemption 3 statute.  It could come

 from nowhere else. [FN5]

      FN4. We have held that Section 6103 is an exemption 3 statute;  that

     is, it meets the criteria set out in subsection (b)(3).  Moody v. IRS,

     654 F.2d 795, 797 & n. 4 (D.C.Cir.1981);  see Chamberlain v. Kurtz, 589

     F.2d 827 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62

     L.Ed.2d 54 (1979);  Fruehauf Corp. v. IRS, 566 F.2d 574 (6th Cir.1977);

     see also Zale Corp. v. IRS, 481 F.Supp. 486, 490 n. 13 (D.D.C.1979).

      FN5. My reading of Section 6103 and FOIA nevertheless differs from the

     reasoning of Zale Corp. v. IRS, 481 F.Supp. 486 (D.D.C.1979), relied

     upon by King.  The Zale court held that Section 6103 was a self-

     contained provision not subject at all to judicial review under FOIA.

     Id. at 489-90.  The court held that Section 6103 contained its own

     standard governing disclosure or nondisclosure of tax return information

     and that decisions not to disclose were subject to review only under the

     Administrative Procedure Act.  Id.  In my view, this analysis goes too

     far.  Section 6103 and FOIA are easily construed together without the

     need to ignore either provision.

  I have found nothing in the legislative history of FOIA or its subsequent

 amendments that contradicts this analysis.  The House Report accompanying S.

 1160, the bill whose provisions were eventually codified as amended at 5

 U.S.C. s 552, explained that "[t]he proceedings are to be de novo so that the

 court can consider the propriety of the withholding instead of being restricted

 to judicial sanctioning of agency discretion."  H.R.Rep. No. 1497, 89th Cong.,

 2d Sess. 9 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418.  The Senate

 Report stated:  "That the proceeding must be do novo is essential in order that

 the ultimate decision as to the propriety of the agency's action is made by the

 court and prevent [sic] it from becoming meaningless judicial sanctioning of

 agency discretion."  S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965). [FN6]

      FN6. In 1974 and 1976 Congress amended FOIA to clarify the meaning of de

     novo review and to tighten the focus of certain exemption provisions.  To

     do this Congress explicitly overruled judicial precedents that it viewed as

     obstacles to fulfilling FOIA's pro-disclosure policy.  In the 1974

     amendments to FOIA, for example, Congress overruled the Supreme Court's

     decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119

     (1973).  Congress viewed the Court's holding as having interpreted

     exemption (b)(1), relating to national security and foreign policy matters,

     too broadly.  Congress clarified in the 1974 amendments that district court

     judges could conduct in camera inspection of classified documents and need

     not defer to the agency's decision to label a document classified.  See

     S.Rep. No. 1200, 93d Cong., 2d Sess. 9, 12 (1974), U.S.Code Cong. &

     Admin.News 1974, p. 6267 (stating intent to overrule Mink).  Similarly,

     in 1976, Congress overruled FAA v. Robertson, 422 U.S. 255, 95 S.Ct.

     2140, 45 L.Ed.2d 164 (1975), which had interpreted exemption (b)(3) to

     embrace a statute (and by implication a class of statutes) that Congress

     had not intended to include among those excusing disclosure.  See H.R.Rep.

     No. 1441, 94th Cong., 2d Sess. 25 (1976), U.S.Code Cong. & Admin.News 1976,

     p. 2183 (stating intent to overrule Robertson).

     The legislative history of the 1974 and 1976 amendments to FOIA does not

     discuss the term "de novo review" in any directly relevant respect.  But

     the legislative history of the 1974 amendments does discuss the term in

     connection with new statutory language that narrowed the scope of

     exemption (b)(1) and clarified that a district court may order, as part of

     its de novo review of an agency's withholding determination, in camera

     review of classified documents.  S.Rep. No. 1200, 93d Cong., 2d Sess. 8-9,

     11-12 (1974).  The Conference Report states that in camera inspection

     should not be automatically undertaken;  that the agency should first

     receive an opportunity to demonstrate the correctness of its classification

     decision (the predicate for withholding documents under exemption 1) by

     means of affidavits.  In deference to executive agencies' expertise in

     national security and foreign policy matters, the conferees stated their

     intent that courts should "accord substantial weight to an agency's

     affidavit concerning the details of the classified status of the disputed

     record."  Id. at 12, U.S.Code Cong. & Admin.News 1974, p. 6290.  Thus,

     Congress recognized that even within the de novo review that it directed

     courts to conduct under FOIA, there was room for deference to the agency on

     factual issues relating to the availability of an exemption in a particular

     case within the agency's delegated area of responsibility.

  *168 **100 But does de novo review mean more than an independent

 examination of the facts in light of applicable law; [FN7]  is it inconsistent

 with deference to an agency's reasonable construction of a statute it

 administers?  In other words, must Chevron give way whenever a court is

 charged with de novo review?

      FN7. The term de novo review, as it is used in the general judicial review

     provision of the Administrative Procedure Act, 5 U.S.C. s 706(2)(F), is

     limited to an independent review of the relevant facts.  Section 706

     requires the reviewing court to "hold unlawful and set aside agency action,

     findings, and conclusions found to be-- ... (F) unwarranted by the facts to

     the extent that the facts are subject to trial de novo by the reviewing

     court."  See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

     402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (Section 706(2)(F)

     authorizes de novo review in two circumstances only:  (1) for adjudicatory

     agency action, if agency factfinding procedures inadequate;  (2) in

     proceedings for enforcement of nonadjudicatory agency action, court may

     undertake independent factfinding as to issues not raised before agency).

  I have concluded that Chevron does apply in such circumstances.  The rule

 of Chevron is not a rule of judicial administration for courts to apply in

 reviewing administrative decisionmaking.  It is an articulation of the

 fundamental principle that when Congress intends to delegate authority to an

 agency, that purpose demands recognition by the courts.  I reason as follows.

  In entrusting administration of a statute to an agency, Congress typically

 delegates to the agency concomitant authority to "fill any gap" that Congress

 has left.  Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39

 L.Ed.2d 270 (1974).  Part of the legislative purpose with respect to a

 particular statute, then, is Congress' intent that the agency will exercise its

 delegated authority in fulfillment of the statute's purpose.  Courts

 appropriately defer to an agency's reasonable interpretation of a statute that

 the agency administers, then, not simply out of recognition of the agency's

 expertise, but primarily out of respect for congressional intent.

  In Sims v. CIA, 642 F.2d 562 (D.C.Cir.1980), this court took an approach

 contrary to my analysis and treated the issue of statutory construction of an

 exemption 3 statute as a question of law "reserved ultimately to our

 determination."  Id. at 568.  In that case, the CIA declined to disclose

 documents that revealed the names of individuals and institutions that had

 participated in a controversial research program.  The agency argued that the

 documents were "specifically exempted by statute" from disclosure within the

 meaning of Section 552(b)(3).  The exemption 3 statute upon which the CIA

 relied was 50 U.S.C. s 403(d)(3) (1982), which authorizes the Director to

 protect "intelligence sources and methods from unauthorized disclosure."

 Appellants argued that the institutions and *169 **101 individuals did not

 constitute "intelligence sources" within the meaning of the statute.  Thus, the

 issue in the Sims case, as in this case, turned on construction of a term in

 the exemption 3 statute.  On appeal, this court devised a definition of the

 term "intelligence sources" after reviewing the statute and its legislative

 history.  The court stated that FOIA authorized the judiciary "to undertake de

 novo review" not only of "agency determinations that particular records fall

 within exemption classifications," but also of "agency constructions of

 applicable statutes."  642 F.2d at 566 (citation and footnote omitted).  The

 court acknowledged that "[b]ecause the term 'intelligence ... sources' appears

 in the text of the National Security Act, it is appropriate for us to begin our

 analysis with the construction proposed by the CIA, an agency chartered by that

 statute and charged with major responsibility for its administration."  642

 F.2d at 568 (citations omitted).  The court continued, "But we must not shrink

 from the responsibility vested in us by Congress.  The question presented is

 one of law reserved ultimately to our determination."  Id.

  The Sims court's observations as to the state of the law on deference to

 administrative agencies' determinations in 1980 were, in my view, overbroad and

 erroneous.  It has always been true that statutory interpretation is a question

 of law but it is equally true that an agency's construction of its governing

 statute traditionally has been viewed as entitled to deference in certain

 contexts.  As this court recognized in a case decided after Sims, although

 the "APA appears to require de novo review of all questions of law ... courts

 almost always accord some deference to an agency's statutory construction."

 [FN8]  Office of Communication of the United Church of Christ v. FCC, 707

 F.2d 1413, 1422-23 n. 12 (D.C.Cir.1983);  see Red Lion Broadcasting Co. v.

 FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801-02, 23 L.Ed.2d 371 (1969);

 Unemployment Comp. Comm'n v. Aragon, 329 U.S. 143, 153-54, 67 S.Ct. 245,

 250-51, 91 L.Ed. 136 (1946);  McLaren v. Fleischer, 256 U.S. 477, 480-81, 41

 S.Ct. 577, 577-78, 65 L.Ed. 1052 (1921);  Webster v. Luther, 163 U.S. 331,

 342, 16 S.Ct. 963, 967, 41 L.Ed. 179 (1896).  Chevron has put a new gloss on

 these old truisms.  Chevron tells us that if congressional intent respecting

 a statutory provision is not clear, we must not treat the issue of statutory

 construction as we would treat any other garden variety question of law.  We

 must defer to another institution's determination--that of the agency charged

 to administer the law--provided, of course, that the agency's determination is

 reasonable.  In this sense, I believe that Chevron supersedes the Sims

 court's overbroad analysis.

      FN8. The Office of Communications court used the term "de novo" as

     shorthand for the introductory language in Section 706 that instructs

     courts reviewing agency action to "decide all relevant questions of law."

     5 U.S.C. s 706 (1982).  But as the quotation in text makes plain,

     Office of Communications did not purport to hold that such "de novo"

     determinations were to be made without deference to the agency's statutory


  My view is further reinforced by the Supreme Court's treatment of the

 definitional issue when Sims came before that Court. [FN9]  CIA v. Sims,

 --- U.S. ----, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985).  Dismissing the

 court of appeals' definition of "intelligence sources" as too narrow, the Court


      FN9. The court of appeals' decision reported at 642 F.2d 562 (1980)

     (Sims I ) set out a definition of the term "intelligence sources" and

     remanded the case for the district court to apply that definition.  After

     the district court's decision on remand, the case again came before the

     court of appeals.  Sims v. CIA, 709 F.2d 95 (D.C.Cir.1983) (Sims

     II ).  This court determined that the district court had not properly

     applied the definition set forth in Sims I and reversed and remanded the

     case.  Id. at 100-01.  The Supreme Court heard the case on the parties'

     cross-petitions for certiorari.

     For a discussion of the Sims Court's "implicit view of a limited role

     for the judiciary" in reviewing agency claims of FOIA exemption 3, see

     Comment, CIA v. Sims:  Supreme Court Deference to Agency Interpretation

     of FOIA Exemption 3, 35 Cath.U.L.Rev. 279 (1985).

   The plain meaning of the statutory language, as well as the legislative

 history *170 **102 of the National Security Act, ... indicates that

 Congress vested in the Director of Central Intelligence very broad authority to

 protect all sources of intelligence information from disclosure.  The Court of

 Appeals' narrowing of this authority not only contravenes the express intention

 of Congress, but also overlooks the practical necessities of modern

 intelligence gathering--the very reason Congress entrusted this Agency with

 sweeping power to protect its "intelligence sources and methods."

  Id., 105 S.Ct. at 1887-88.  This approach is consistent with Chevron

 insofar as it first undertakes an inquiry as to the clarity of the legislative

 intent.  Having found clear indications of congressional intent in the language

 of the statute and its legislative history, the Court had no need to move to

 the next step of the analysis that Chevron directs--determining whether the

 administrative agency had advanced a reasonable interpretation of the statute

 to which the judiciary should defer.  But the Court's recognition of the

 "practical necessities of modern intelligence gathering" that compelled

 Congress to delegate to the CIA "sweeping power" to protect "intelligence

 sources and methods" indicates that the Court's conclusion as to legislative

 purpose was buttressed by its understanding of the agency's delegated authority

 and practiced expertise.  Similarly, here Congress has delegated to the

 Secretary of the Treasury authority to administer the federal income tax laws.

 And Section 6103 is an integral part of the mosaic of those tax laws because

 it directs the Secretary to protect return information from disclosure.

 Congress realized that the confidentiality of return information, which

 taxpayers usually provide voluntarily, is crucial to efficient administration

 of the tax laws.  S.Rep. No. 938, 94th Cong., 2d Sess. 316-19 (1976), U.S.Code

 Cong. & Admin.News 1976, p. 2897.  Naturally, the Secretary, like the Director

 of Central Intelligence in Sims, is better situated than the courts to

 determine when disclosure of information is likely to inhibit the collection of

 that information in the future.  For that reason, Congress quite understandably

 delegated to the Secretary some responsibility for further refining the meaning

 of "data in a form which cannot be associated with, or otherwise identify,

 directly or indirectly, a particular taxpayer."


  Applying the traditional principle of deference, as refined by Chevron, to

 this case, I conclude that we should defer to the agency's interpretation of

 Section 6103.  As noted above, the agency's interpretation of Section

 6103 is not an inevitable one but that is not the test.  The Chevron Court

 indicated, rather, that when congressional intent is not clear

   a court may not substitute its own construction of a statutory provision for

 a reasonable interpretation made by the administrator of an agency.

  467 U.S. at 844, 104 S.Ct. at 2782 (footnote omitted).  Congress' implicit

 delegation of authority to the agency to refine the definition of "return

 information" is buttressed by the broad discretion conferred upon the Secretary

 in another portion of the statute to disclose return information if he

 determines that such disclosures would not seriously impair administration of

 the tax system.  See 26 U.S.C. s 6103(e)(7) (1982) (release of return

 information to persons having material interest).  This instance of

 statutorily-conferred discretion to disclose, albeit to a limited class of

 requesters, even information sensitive enough to be categorized as return

 information suggests that the prior determination of what constitutes

 nondisclosable return information ought to be informed by the agency's


  The majority refuses to defer to the agency's interpretation because it

 asserts that the agency's practice is inconsistent with its interpretation of

 the statutory text.  Specifically the majority focuses on the government's

 continued release of the tax model as fatal to its interpretation of the

 Haskell amendment.  However, the majority does not contend that the tax model

 cannot fit easily within the general phrase "data in a form which cannot be

 associated *171 **103 with, or otherwise identify, directly or indirectly,

 a particular taxpayer."  26 U.S.C. s 6103(b).  That argument would, in any

 event, be tenuous in light of the explicit statement Senator Haskell made from

 the floor.  He said that the amendment was intended to permit "the Internal

 Revenue Service [to] continue to release for research purposes statistical

 studies and compilations of data, such as the tax model, which do not identify

 individual taxpayers."  122 Cong.Rec. 24,012 (1976) (remarks of Sen.


  Instead, the majority raises what I view as an artificial textual barrier by

 ascribing to the government an argument not presented in its brief, and not

 necessary to its position, [FN10] that the Haskell amendment is identical in

 its scope of disclosure authority to Section 6108 and that Section 6108's

 text provides no authority to release the tax model.  The agency, however, as I

 understand its position, maintains that the Haskell amendment was intended to

 authorize disclosure of statistical compilations such as those referred to in

 Section 6108 and disclosure of the tax model, which disclosure is apparently

 not otherwise authorized by the statute.  The legislative history of the

 Haskell amendment amply supports the government's position that it was designed

 to authorize the continued release of data the government had released prior to

 its passage.

      FN10. The majority opinion reproduces a portion of the colloquy at oral

     argument which it asserts establishes the IRS's position to be that

     Section 6103 permits release only of the statistical studies referred to

     in Section 6108.  I do not believe that the colloquy, in context,

     establishes the IRS's position as such.

     THE COURT:  Your reading of Section 6103 makes 6108 superfluous.

     COUNSEL:  Not entirely, but it's certainly arguable that the Haskell

     amendment is redundant in the light of 6108.

     THE COURT:  I don't understand that.  Why the two if that is what Congress

     intended to do?  ... As I read it over and over again, it's exactly the

     same.  Your interpretation of the Haskell Amendment is 6108.

     COUNSEL:  That is right.  And that's why Senator Long said he didn't think

     it was really all that necessary....

     Transcript of Oral Argument at 28-29 (Dec. 5, 1985) (conformed to tape

     recording of oral argument).

     Counsel's apparent concession is not all it seems, however.  Government

     counsel appears to have been momentarily caught off guard by the court's

     vigorous questioning, for counsel made it abundantly clear in his

     immediately subsequent exchanges with the court that the IRS's position was

     not confined to its understanding of Section 6108.

     THE COURT:  There is no congressional intention to support that view


     COUNSEL:  ... I'm sorry, I can't agree with that.

     THE COURT:  Well, where is it?

     COUNSEL:  It seems very clear that Haskell was worried that the sweeping

     language of 6103(b)(2), that maybe legitimate scholarly use, state and

     local government use of the tax model which had been going on since 1960,

     would be choked off.  "Oh, my God, they've gone too far in defining return

     information."  Well, 6108 was there, to be sure, but Haskell, perhaps not

     satisfied that one bite would be enough, thought that maybe he ought to

     have two, and he suggested that under those circumstances, in order to

     continue to make available for legitimate scholarly use the tax model and

     similar studies it would be important to say, that, well, data in a form

     that ... [the court interrupted].

     Id. at 29 (conformed to tape recording of oral argument) (emphasis


     This elaboration is consistent with IRS counsel's earlier statement that

     "[W]e submit it is very clear that the Haskell amendment was meant to

     permit the release of the tax model and similar statistical studies that

     were in an amalgamation form...."  Id. at 25 (emphasis added).  It is

     clear that the IRS never strictly limited its interpretation of the Haskell

     amendment to the terms of Section 6108.  It viewed the Haskell amendment

     as permitting disclosure of the tax model and "similar statistical

     studies."  This clearly leaves open the possibility of the creation of

     other statistical studies, outside the scope of Section 6108, whose

     release would be permitted under the Haskell amendment.  I do not contend

     otherwise, contrary to the majority's suggestion.  See Maj. Op. at 162

     n.3.  There may or may not be any statistical studies in existence or

     contemplated by the IRS that are outside of Section 6108;  I do not

     know, nor did Congress--which, of course, is why (in addition to its

     authorization of the release of the tax model) the Haskell amendment is not


  To be sure, there may not be a great deal of difference between the agency's

 interpretation of the Haskell amendment, adopted by the Seventh Circuit in

 King, and the majority's rendition.  But the rule of Chevron requires us

 not to reason our *172 **104 own way to an interpretation, even if it were

 one that the agency might find consistent with its own.  Rather, Chevron

 requires us to defer to agency interpretations, such as the one at issue here,

 that merit deference.  I am reinforced in my conviction that deference is the

 appropriate course in this case by the majority's unwillingness to specify the

 outer boundaries of its own interpretation, Maj.Op. at 163, thus presenting

 this court with a heightened prospect of further litigation focused on the

 exploration of those boundaries.

  On the basis of the foregoing, I concur in the majority's opinion insofar as

 it overrules Neufeld.  But I cannot join the opinion insofar as it rejects

 the agency's interpretation of the statute in favor of the majority's own.

  WALD, Circuit Judge, dissenting, with whom SPOTTSWOOD W. ROBINSON, III, Chief

 Judge, and MIKVA, Circuit Judge, join:


  I dissent from the court's newly adopted interpretation [FN1] of 26

 U.S.C. s 6103(b)(2) saying that the IRS may never disclose data listed in the

 section even if there is no risk of identification, unless it has been

 "reformulated."  The court reaches that interpretation based on its reading of

 the text of the Haskell Amendment, inferences it draws from the relationship

 between that Amendment and other sections of the Code, and its understanding of

 plausible legislative intent.  I believe that these very same factors support a

 reaffirmance, rather than a rejection, of the interpretation of s 6103(b)(2)

 previously adopted by this court in Neufeld v. IRS, 646 F.2d 661


      FN1. Since the en banc court has considered only this discrete legal

     issue, and has left to the panel the application of its "holding to the

     facts of the present case," maj. op. at 163, my dissent must similarly

     focus on the legal issue of s 6103(b)(2)'s general meaning.  I am

     concerned, however, that the court's recent practice of issuing en banc

     opinions on legal issues, as opposed to concrete factual scenarios, see

     also United States v. Foster, 783 F.2d 1082 (D.C.Cir.1986) (en banc),

     poses problems.  Judges typically do not issue advisory opinions on

     abstract legal issues because of the case or controversy requirement of

     Article III.  While our practice here does not, of course, technically

     implicate those provisions, it does, in my opinion, raise some of the

     dangers that the case or controversy requirement protects against.  For

     example, it is conceivable that a majority of the en banc court might think

     that this controversy could be disposed of on some narrower, factual ground

     than a wholesale repudiation of our old definition of s 6103(b)(2).  Yet

     the contours of the issue that was heard en banc practically prevent such

     an alternative.  Unlike Supreme Court review, where the justices review the

     entire record before deciding whether to hear a specific issue, our

     practice isolates the legal issue from its factual moorings altogether.  I

     hope that, in the future, the court will be cautious in adopting this kind

     of piecemeal approach to en banc hearings.  "The establishment of legal

     rules for future guidance," maj. op. at 155 n.1, best emerges out of

     fullfledged, fact-based adversarial proceedings, not judicial rulemaking.

  I find nothing in the statutory text or structure to support the notion that

 wholly nonidentifying information [FN2] may not be disclosed unless it has been

 put in a different "form."  Such an extreme and curious requirement is at odds

 with the majority's own recognition that "there is no reason 'why Congress

 would have wanted to forbid the disclosure of information which would not

 threaten the privacy of individual taxpayers.' "  Maj. op. at 158 (quoting

 Brief of Neufeld and Freedom of Information Clearinghouse at 5).  The

 Neufeld approach, in my view, comports best with Congress' balancing of the

 strong interest in taxpayer privacy and the equally strong interest in

 disclosure under the Freedom of Information Act whenever taxpayers' privacy

 rights are not implicated.

      FN2. It is essential to note that the disclosability of actual tax returns

     and other information filed by the taxpayer is not at issue here.  Such

     items are covered by s 6103(b)(1), are not subject to the Haskell

     Amendment, and are thus wholly immune from disclosure under FOIA's

     exemption 3.

  The interpretation adopted in Neufeld adequately safeguards the privacy

 concerns that the majority and I share.  The court in Neufeld explicitly

 held that "mere deletion *173 **105 of names and addresses" does not

 automatically open the door for disclosure of items listed in s 6103

 (b)(2).   Neufeld, 646 F.2d at 665.  Rather, the court remanded the case to

 the District Court for determination of "what information, other than name and

 address, poses a risk of identifying a taxpayer," id., with the

 understanding that the nature of certain documents may render them entirely

 nondisclosable.   Id. at 666.  See also Moody v. IRS, 654 F.2d 795

 (D.C.Cir.1981);  Long v. IRS, 596 F.2d 362 (9th Cir.1979), cert. denied,

 446 U.S. 917, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980).

  I agree that the IRS faces a difficult task in determining just when enough

 information has been deleted to make the taxpayer unidentifiable.  This task is

 no different, however, from the situation agencies often face under the

 redaction requirement of the Freedom of Information Act, 5 U.S.C. s 552(b),

 a requirement that applies even with regard to matters otherwise "specifically

 exempted from disclosure by statute" under FOIA's exemption 3.  5 U.S.C. s

 552(b)(3).  While I would grant considerable deference to the agency's

 expertise in determining when even seemingly anonymous tax data might lead the

 informed requester to identify a taxpayer, I believe that this determination is

 for the Service to carry out on a case-by-case or, at times, a document class-

 by-class basis, in the same fashion that the panel opinion accompanying the en

 banc decision requires the IRS to proceed with respect to documents not listed

 in s 6103.  See Church of Scientology v. Internal Revenue Service

 (hereinafter "Panel op."), 792 F.2d 146, 152-153 (D.C.Cir. 1986).

  In changing course so fundamentally, the court must beware of the effect that

 its decision will have on others who seek to review tax information in pursuit

 of varied goals.  The plaintiff in Neufeld, for example, was a professor

 doing research into the practice of members of Congress, White House staff

 members, and other high government officials interceding on behalf of taxpayers

 in ongoing IRS proceedings.  Neufeld "specifically disclaim[ed] any interest in

 information that would directly or indirectly identify individual taxpayers."

 Neufeld, 646 F.2d at 662.  See also Tax Reform Research Group v. IRS, 419

 F.Supp. 415 (D.D.C.1976) (public interest group researching Nixon

 Administration's actions pressuring IRS with respect to persons perceived as

 either "friends" or "enemies").  Yet, under the majority's holding today, the

 IRS is forbidden from disclosing s 6103(b)(2) data in its present form for

 research purposes to Neufeld, the Tax Reform Research Group, and countless

 other legitimate groups and scholars, even if the Service is wholly confident

 that there is no risk of disclosure whatsoever.  Since the majority has failed

 to carry its burden in demonstrating that Congress intended to establish a

 distinct, statutory requirement of reformulation, I dissent.


  The majority's major premise is that the language of the Haskell Amendment,

 i.e., "return information ... does not include data in a form which cannot be

 associated with, or otherwise identify, directly or indirectly, a particular

 taxpayer," 26 U.S.C. s 6103(b)(2) (emphasis added), means Congress

 established a "reformulation" requirement.  No data listed in s 6103(b)(2)

 can ever be released unless it is physically put into a different document from

 that in which the information presently appears in the IRS files.  Deletion of

 any and all identifying material will never be enough. [FN3]  *174

 **106 Otherwise, the majority urges, the term "in a form" is made

 superfluous, "as reading the provision without it will demonstrate."  Maj. op.

 at 157.  In my view, however, the term "in a form" is far more easily

 understood as saying that the substantive types of information listed in

 s 6103(b)(2) are not "return information" if they can be disclosed in a

 manner that cannot identify a taxpayer.  Thus, Congress meant to say no more

 than return information does not include data that, by itself or even in

 conjunction with other information, cannot be used to identify a particular


      FN3. Because it holds that s 6103(b)(2) requires both anonymity and

     reformulation, the effect of the majority's holding is not to require any

     redaction pursuant to FOIA, since that statute has been held not to require

     an agency to create new documents.  See Renegotiation Board v. Grumman

     Aircraft Engineering Corp., 421 U.S. 168, 192, 95 S.Ct. 1491, 1504, 44

     L.Ed.2d 57 (1975);  Krohn v. Dep't of Justice, 628 F.2d 195, 197-98

     (D.C.Cir.1980).  My approach, by contrast, reads s 6103(b)(2) as not

     precluding disclosure of data so long as the disclosed data cannot identify

     the taxpayer.  Deletion of identifying information can, under this

     approach, take certain data out of the "return information" definition, and

     is thus mandated by the segregation requirement of FOIA.  See Neufeld,

     646 F.2d at 665-66.

     Of course, my disagreement with the majority goes far beyond the

     applicability of the segregation requirement of FOIA.  Because of its

     "reformulation" requirement, the majority forbids disclosure of any return

     information in its original state, even if the information, without the

     need for any redaction, is absolutely nonidentifying.

  One can, of course, make talmudic dissections of everyday language to find

 hidden and profound implications.  Unless statutory language is so clear that

 it compels a specific result, however, our task in statutory construction is

 to "ascertain the congressional intent and give effect to the legislative

 will."  Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44

 L.Ed.2d 525 (1975).  See generally id. (" 'In expounding a statute, we must

 not be guided by a single sentence or member of a sentence, but look to the

 provisions of the whole law, and to its object and policy.' ") (quoting

 United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed.

 1009 (1849));  United States v. American Trucking Associations, Inc., 310

 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940) (cardinal principle of

 statutory interpretation is "to give effect to the intent of Congress").  If

 the history of a statute's enactment reveals that Congress indeed labored

 arduously over each choice of word and each comma, then it is likewise proper

 for us to analyze each word and comma with precision.  But when the legislative

 history shows that a provision was injected into the bill at the tail end of

 the process, and that Congress made no apparent effort to remove every phrase

 the new amendment may have rendered superfluous, we only frustrate Congress'

 goals by holding its words up to microscopic scrutiny.  Judge Posner has

 pointed out that overemphasis on construing all statutes so as to avoid

 surplusage "rests on the unrealistic premise that [they] are drafted with

 complete economy of language....  There is 'useless surplusage' in contracts as

 in statutes, J.C. Penney Co. v. Commissioner of Internal Revenue, 312 F.2d

 65, 72 (2d Cir.1962), and in neither context should a court give effect to

 it."  White v. Roughton, 689 F.2d 118, 120 (7th Cir.1982), cert. den.,

 460 U.S. 1070, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983).  There comes a point

 when a court must be realistic in deciding whether the drafter was using

 everyday expressions in the manner that we all do, or was instead creating a

 technical, statutory requirement.  Cf. American Radio Relay League v. FCC,

 617 F.2d 875, 879 (D.C.Cir.1980) ("courts will not give independent meaning to

 a word 'where it is apparent from the context of the act that the word is

 surplusage' ") (quoting 2A Sutherland Statutory Construction s 47.37, at 167

 (4th ed. C. Sands 1973));  see generally 2A Sutherland Statutory Construction s

 47.37, at 258 (4th ed. C. Sands 1984) (discussing rule that words in statute

 can be disregarded if context indicates that they were not intended as adding


  The Haskell Amendment was introduced on the floor of the Senate in the closing

 days of deliberation on a major tax reform act.  See 122 Cong.Rec. 24,012

 (July 27, 1976).  The Amendment engendered absolutely no debate. [FN4]  Given

 this history, [FN5] or lack thereof, I cannot agree that the three little

 words "in a form" evince a clear intent of Congress that data otherwise

 disclosable under the Haskell Amendment because it is nonidentifying, cannot be

 disclosed unless it is somehow "reformulated."  The fact is that most

 information governed by the Haskell Amendment is already likely to be in a form

 different from that originally submitted to the Service since the actual return

 submitted by the taxpayer is exempt from disclosure, without regard to

 identifiability.  See supra *175 **107 note 2.  Conceding as it does that

 aggregation is not essential to fulfill the reformulation requirement, the

 majority has adopted a wooden test that turns on physical form, and in so doing

 has attributed an absurd intent to Congress.  Under the majority's test, the

 IRS may only disclose nonidentifying information if it copies it onto a fresh

 piece of paper, perhaps in narrative style.  Yet, there is certainly no

 evidence that such recopying accomplishes anything that redaction would not.

      FN4. As the majority points out, the only substantive comment made was

     Senator Haskell's remark about what effect the amendment would have on tax

     research.  See maj. op. at 161.

      FN5. The House passed no like provision, and the Conference Committee

     report states only that

     The Senate amendment provides that returns and return information are

     confidential and not subject to disclosure except as specifically provided

     by statute....  Under the amendment, data in a form that cannot be

     associated with or otherwise identify a particular taxpayer will not

     constitute return information.

     S.Rep. No. 1236, 94th Cong., 2d Sess. at 476-77 (1976).

  The majority concludes that Congress would not have used the "in the form"

 language had it not wanted to create a reformulation requirement.  I, on the

 other hand, believe Congress would have used much clearer language had it

 wanted to create such an arbitrary and novel reshaping requirement, without a

 word of explanation on the floor or in the Conference Report.  Given its own

 emphasis on dissecting the statutory language, and avoiding Alice in Wonderland

 definitional structures, maj. op. at 158 n. 2, I am startled by the apparent

 ease with which the majority is able to read the Haskell Amendment as creating

 two separate definitional elements.  Nothing in the structure of the single

 sentence Amendment supports such a reading, only the majority's insistence on

 removing any trace of redundancy.  Since nothing in the main body of

 s 6103(b)(2) discusses the "form" that the information is in, I cannot

 understand how the Haskell Amendment's use of the term "form" can be understood

 as allowing disclosure only where the information is in a different form from

 what it was originally in.  As an Amicus points out, "Congress could hardly

 have embarked on a more oblique route if its goal was to create such a separate

 requirement."  Brief of Amici Curiae Professor John L. Neufeld and The Freedom

 of Information Clearinghouse at 4.

  I do not accept the majority's characterization of our choice here as one

 between construing a statutory phrase as a meaningful requirement or ignoring

 the same words as meaningless surplusage.  Rather, I see the choice as one

 between attributing weighty legal significance to a common and inherently

 vague [FN6] term that could be just as meaningfully viewed in context simply as

 a linguistic aide to the Amendment's main requirement of anonymity, and

 recognizing it for what it is, a transitional technique of drafting.  Under

 either reading, the words make literal sense, and, functionally, the reading

 adopted in Neufeld and Long is far less eccentric.  Thus, unless other

 indicia compel the result, the language itself does not, in my view, support

 the imposition of a distinct statutory requirement of reformulation.

      FN6. Indeed, even the majority is unable to set forth a general test for

     when information is in a different form.  Maj. op. at 160-163.  All it is

     sure of is that deletion is not sufficient and aggregation is not

     necessary.  Yet, somehow, the majority is able to "readily opine" from the

     purpose of its reformulation test, that mere copying in different language

     and style is not sufficient.  Maj. op. at 163 n.4.  The glaring deficiency

     with the majority's "reformulation" test is that it never specifies from

     what original form the reformulation must be done and just what satisfies

     the reformulation requirement.  The majority refers to "some alteration by

     the government of the form in which the return information was originally

     recorded."  Id. at 163.  Yet the IRS obviously has information in its

     files in hundreds of different developmental stages.  For example, notes of

     an investigation, abstracts of an investigation, list of investigations

     done in a week, etc. ...  To say that there must be "reformulation" does

     not at all answer the question of what is an original form to begin with.

  But even if Congress did intend to create a reformulation requirement, I am at

 a loss to understand why the majority so conclusorily assumes that deletion of

 identifying information does not satisfy this requirement.  Why is it a

 "curious usage" to say that a document takes a different form once deletions of

 key information have been made?  In its original, it is in a form that

 identifies;  once the necessary deletions are made, it is in a form that does

 not identify.  In my view, the common understanding of keeping documents in

 anonymous form is satisfied once deletions of possibly identifying materials

 are made.  Nothing in the statute indicates that Congress intended the word

 "form" to mean any more than this. [FN7]

      FN7. The fact that Senator Haskell specifically intended to allow

     disclosure of items such as the tax model strongly supports the Neufeld

     position that redaction is enough to take a document out of the "return

     information" classification. In reaching its original decision in this

     case, the majority erroneously assumed that the tax model was a "partly

     actual, partly fictional return," and thus met its novel "reformulation

     requirement." Maj. op. at 163 (prior to amendment). Through a helpful post-

     decision motion filed by the American Civil Liberties Union of Washington,

     it has now come to light that, at the time of the Haskell Amendment, the

     tax model was in fact only "an actual return with identifying details

     eliminated." Maj. op., 792 F.2d at 162 (as amended). See Motion of

     Amicus Curiae to Amend Opinion (filed June 10, 1986). Given this

     acknowledgement of its mistaken factual assumption, I am amazed that the

     majority continues to claim that redaction is insufficient under the

     Haskell Amendment. After having relied in the original opinion on the tax

     model to refute the government's suggestion that aggregation is required,

     the majority stubbornly refuses now to examine the effect that the newly

     discovered definition of the then existing tax model has on its own

     standard of reformulation. The correct description of the tax model at the

     time of passage definitively demonstrates that both the interpretations

     advanced by the government and the majority are wrong, and that all that

     the framers of the Amendment thought necessary under s 6103 was

     effective redaction.

  **108 *176 The majority also argues that it "would be most peculiar to

 catalogue in such detail, in subparagraph (A) of the body of the definition,

 the specific items that constitute 'return information' ... while leaving to an

 afterthought the major qualification that none of those items counts unless it

 identifies the taxpayer."  Maj. op. at 157.  Were the entire statute drafted at

 one time, there might be some merit in this argument.  But, as I already

 pointed out and as the majority concedes, the Haskell Amendment was indeed an

 afterthought.  It is certainly not unusual that a floor amendment makes a major

 change in the meaning of an original provision.  The majority's insistence on

 stylistic congruity ignores the reality of the legislative process.  Moreover,

 the panel opinion itself provides the justification for the list of specific

 kinds of material to be described as "return information," since it holds that

 items that do not appear in the list are to be treated no differently than any

 other item requested under FOIA.

  The majority's efforts to show that the reading adopted by this court in

 Neufeld v. IRS, 646 F.2d 661 (D.C.Cir.1981), and by the Ninth Circuit in

 Long v. IRS, 596 F.2d 362 (9th Cir.1979), cert. denied, 446 U.S. 917, 100

 S.Ct. 1851, 64 L.Ed.2d 271 (1980), creates pockets of superfluity is similarly

 unpersuasive.  The tension described is actually created by the majority's

 insistence that the Haskell Amendment cannot be interpreted as making a few

 provisions of a large and complex statute internally redundant, although still

 functionally meaningful and consistent.  The futility of relying so heavily on

 the minor redundancies the Haskell Amendment effects in neighboring provisions

 that mention "return information" is demonstrated by the fact that even the

 majority's reading makes three such provisions superfluous.  See

 s 6103(j)(4) ("return information" not to be released "except in a form

 which cannot be associated with, or otherwise identify ...);

 s 6103(i)(7)(A) (same);  s 6108(c) (no disclosure shall be such as can

 be "associated with ...").  Recognizing the redundancy of these provisions, the

 majority finds it "remarkable that the dislocations are not greater,"  maj. op.

 at 163, and concludes that the superfluity inquiry demonstrates the propriety

 of its approach because the superfluity it causes is much less than that

 produced by the interpretation in Long.  Id.  Quantitatively, the majority

 is correct.  Its approach wins 5-3.  But qualitatively, the superfluity created

 by both readings of the Haskell Amendment are alike. [FN8]  Neither affects any

 substantive, practical matter.

      FN8. The majority argues that the score is in fact 9-2.  Maj. op. at 158

     n. 2.  It supports this by counting s 6103 four separate times, by

     counting s 6103 twice, by discounting the relevance of s 6108(c), and

     by arguing that the phrase "in a form" is a flaw to be counted against the

     circuit's former construction, but not against its own construction.

     Leaving these accounting issues aside, the fact remains that under either

     tabulation, neither construction fits snugly with the rest of the statutory


  Given the unavoidable stylistic superfluity under either construction, I do

 not see how the redundancy issue can be used to carry the day for either side

 of the debate.  Once it is recognized that any interpretation of the Haskell

 Amendment "dislocates" some provisions by making them technically unnecessary,

 I think it useless to award victory to the interpretation that affects the

 fewer number.  The unavoidable conclusion to be drawn from the superfluity

 created by either construction is that Congress did not concern itself with the

 fact that some of the other provisions **109 *177 were being made

 stylistically inelegant.  Once that conclusion is reached, minor differences in

 how many provisions each construction affects become irrelevant.


  Aside from its textual arguments, the majority urges that its reading is

 consistent with plausible legislative intent since any case-by-case assessment

 that data will not identify a taxpayer is problematic because it "depends to a

 large extent upon uninformed estimations as to what data the requester

 [already] possesses."  Maj. op. at 158.

  The problem of identification by an informed requester is not at all unique to

 the Internal Revenue Service.  Exemption 4 of the FOIA, for example, exempts

 from disclosure material containing confidential, commercial information.  5

 U.S.C. s 552(b)(4).  Exemption 6 exempts "personnel and medical files and

 similar files the disclosure of which would constitute a clearly unwarranted

 invasion of personal privacy."  5 U.S.C. s 552(b)(6).  Exemption 7 deals

 with law-enforcement investigatory information to the extent that it would

 "constitute an unwarranted invasion of personal privacy."  5 U.S.C. s

 552(b)(7)(c).  All of these exemptions clearly implicate the "informed

 requester" problem, but the Act nonetheless provides that "[a]ny reasonable

 segregable portion of a record shall be provided to any person requesting such

 record after deletion of the portions which are exempt under this

 subsection."  5 U.S.C. s 552(b).  Courts have developed standards and

 procedures to deal with agency assertions that any disclosure might lead to the

 substantive harm described by FOIA, taking into account the informed requester

 issue.  See Dept. of Air Force v. Rose, 425 U.S. 352, 380, 96 S.Ct. 1592,

 1608, 48 L.Ed.2d 11 (1976) ("what constitutes identifying information regarding

 a subject cadet must be weighed not only from the viewpoint of the public, but

 also from the vantage of those who would have been familiar, as fellow cadets

 or Academy Staff, with other aspects of his career at the Academy");

 Halperin v. Central Intelligence Agency, 629 F.2d 144, 150

 (D.C.Cir.1980) (concluding that CIA was justified in not disclosing information

 since "[w]e must take into account ... that each individual piece of

 intelligence information, much like a piece of jigsaw puzzle, may aid in

 piecing together other bits of information even when the individual piece is

 not of obvious importance in itself") (quoted approvingly in S.Rep. No. 221,

 98th Cong., 1st Sess. 27-28 (1983));  Schonberger v. National Transportation

 Safety Board, 508 F.Supp. 941, 945 (D.D.C.1981) ("the material cannot be

 redacted in a manner that would protect the identity of the individual whose

 privacy interest is at stake").

  As the panel points out in describing the procedure for evaluating the

 disclosability of information which does not meet the definition of "return

 information," courts can, when appropriate, accept affidavits about classes of

 documents and information, as opposed to requiring document by document

 searches and Vaughn Indexes.  Panel op. at 160-161.  Of course, that approach

 entails some administrative effort, but administrative inconvenience alone has

 never been considered a sufficient reason for cutting back on FOIA.  See

 Long, 596 F.2d at 367 (discussing amounts that some FOIA searches have cost

 but pointing out that Congress recognized that statute was an expensive one).

  The majority argues, however, that while Congress was willing to tolerate the

 "risk of occasional unknowing disclosure" for FOIA disclosures in general, it

 was not willing to tolerate that risk for certain classes of information.  Maj.

 op. at 158 (citing Central Intelligence Files).  The CIA exemption teaches

 though, that Congress clearly know how to exclude certain classes of

 information from FOIA altogether when it wanted to.  In the Central

 Intelligence File context it provided that "[o]perational files of the Central

 Intelligence Agency may be exempted by the Director of Central Intelligence

 from the provisions of [FOIA] which require publication or disclosure, or

 search or review in connection therewith."  50 U.S.C. s 431.

  Indeed, the majority's conclusion that Congress sought to guard broadly

 against the "informed requester" phenomenon is undercut by the fact that, with

 regard to IRS written determinations (rulings, determination letters, or

 technical advice memoranda) and background files relating to written

 determinations, Congress explicitly provides for public inspection of the

 documents *178 **110 after deletion of the specific exempted data that is

 not to be disclosed.  26 U.S.C. s 6110.  Section 6110 operates

 independently of FOIA, sets out its own exemptions and procedures, and is in

 many respects stricter.  Yet Congress mandated disclosure after deletion of the

 nondisclosable material.  Written determinations such as private letter rulings

 that describe the underlying facts of a case surely carry with them the same

 risk of taxpayer identification, yet Congress was satisfied with deletion.

 [FN9]  There is, so far as I can tell, nothing to indicate that Congress wanted

 the informed requester problem treated differently when it comes to return

 information. [FN10]

      FN9. The majority argues that the error of the Long construction is

     made "particularly clear" when compared with the detailed provisions set

     out in s 6110 for disclosure of written interpretation documents in

     which the public has an even stronger interest.  The majority's point,

     however, applies equally to its own analysis of s 6103.  Why, under its

     construction of s 6103 would Congress have permitted disclosure of

     reformulated, nonidentifying information without any of the safeguards of

     s 6110 (which itself applies to nonidentifying, and assumedly

     reformulated, information)?  We all agree that s 6103, unlike s 6110,

     operates within the confines of FOIA, and does not provide for the extra

     safeguards listed in s 6110.  See Panel op. at 148-150.  The presence of

     a separate statutory scheme in s 6110 does not then help the majority at

     all in showing that Congress was not satisfied with FOIA-type redaction

     under s 6103.

      FN10. In the course of the 1981 amendments to s 6103, Congress evinced

     an understanding of the scope of the Haskell Amendment, identical to the

     one adopted in Long and Neufeld.  The Conference Report stated that:

     Present law restricts the disclosure of tax returns and return

     information.  However, information that cannot identify any particular

     taxpayer is not protected under the disclosure restrictions.

     H.R.Rep. No. 215, 97th Cong., 1st Sess. 264, reprinted in [1981] U.S. Code

     Cong. & Admin. News 105, 353 (emphasis added).  While such subsequent

     legislative history is, of course, not dispositive, it shows minimally that

     this reading is not contrary to the intent of Congress.

  Given my conclusion that items listed in s 6103(b)(2) that can be disclosed

 in a manner that does not identify a taxpayer are not "return information," and

 are therefore not wholly immune from FOIA disclosure, [FN11] I would subject

 such items to the same procedures as the panel provides for items not

 specifically listed in s 6103.  See Panel op. at 153.  If the Service

 determines that disclosure cannot be made without risk of identification, that

 factual assessment, of course, deserves considerable deference, dependent as it

 is on the agency's expertise in the area.  See Halperin v. Central

 Intelligence Agency, 629 F.2d 144, 148 (D.C.Cir.1980).

      FN11. Even information disclosable under s 6103 is, of course, still

     subject to possible exemption under one or more of the nine FOIA

     exemptions.  5 U.S.C. s 552(b).

  The court today overreads an everyday casual phrase of no certain content to

 impose an important new and comprehensive restriction on disclosure of items

 listed in s 6103(b)(2), a requirement that does nothing in itself to advance

 the cause of taxpayer privacy.  The majority adopts a "reformulation" test

 which Congress never intended, and which the majority itself is unable to

 define.  In so doing, the court has misread the thrust of the Haskell Amendment

 and effectively emasculated its application.  The court has, in the most

 classic sense, elevated "form" over substance.

  I respectfully dissent.