ASSOCIATION OF NAT. ADVERTISERS, v. F.T.C

[72] LEVENTHAL, Circuit Judge, concurring:

I concur in Judge Tamm's opinion for the court. It makes important contributions to our understanding of the issues. My comments on the merits are to add the perspective that a concurring opinion sometimes permits. On the jurisdictional issues, I have additional views which in the end I do not present for this case but set forth to govern future proceedings.

A.

The ultimate test announced by Judge Tamm as to the merits is that disqualification from a rulemaking proceeding results "only when there has been a clear and convincing showing that [the agency member] has an unalterably closed mind on matters critical to the disposition of the [proceeding]." The test reflects a Supreme Court ruling as to administrative agencies.

FTC v. Cement Institute, 333 U.S. 683, 701, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) (Commission's expression of views).

It is not far removed from the test used in considering challenges to those considered for the duty as jurors quintessentially engaged in specific fact-finding. It is similar to a standard articulated as to recusal of judges.

The test is whether "the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Haldeman, 181 U.S.App.D.C. 254, 283, 559 F.2d 31, 60 (1977) (en banc).

United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966) ("manifesting a closed mind on the merits," as applied to views expressed after hearing some evidence).

The application of this test to agencies must take into account important differences in function and functioning between the agencies and court systems. In fulfilling the functions of applying or considering the validity of a statute, or a government program, the judge endeavors to put aside personal views as to the desirability of the law or program, and he is not disqualified because he personally deems the program laudable or objectionable. In the case of agency rulemaking, however, the decisionmaking officials are appointed precisely to implement statutory programs, and with the expectation that they have a personal disposition to enforce them vigilantly and effectively. They work with a combination rather than a separation of functions, in legislative modes, and take action on the basis of information coming from many sources, even though that provides a mindset before a proceeding is begun, subject to reconsideration in the light of the proceeding.

Eisler v. United States, 83 U.S.App.D.C. 315, 320, 170 F.2d 273, 278 (D.C. Cir. 1948).

Idaho v. Freeman, 478 F.Supp. 33 (D. Idaho, 1979).

Judge Tamm's opinion for the court ventilates important distinctions between rulemaking and adjudication and their consequences in terms of standards of disqualification, and the differences between adjudicative facts pertinent to specific parties and generalized legislative facts, including predictions and underlying views on policy. As Judge Tamm notes, the differences generally identify differences in procedure required for their determination. The difference in nature of issues persists, as Judge Tamm points out, even though some of the tasks of rulemaking are carried out with adaptations of adjudicative forms, whether this additional procedure is adopted voluntarily by the agency, as has sometimes been the case, or is required by court or legislation.

American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (D.C. Cir. 1966) (en banc).

The provisions of the Moss-Magnuson Act have been widely recognized as in effect incorporating into statutory law the approach identified in a number of decisions, primarily decisions of this court. Those decisions set forth the proposition that although rulemaking generally proceeds merely upon the basis of written comment on a proposal, some specific issues are of such a nature that meaningful opportunity for comment requires additional scope for presentation, perhaps by oral submission in the form of a legislative hearing, perhaps by cross-examination in matters involving a specific factual issue where meaningful comment requires a predicate of probing the basis for the contrary views. The train of opinions in this circuit runs from American Airlines, through Holm v. Hardin, to International Harvester, which had the highest visibility and became the focal point of discussion.

American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (D.C. Cir. 1966) (en banc); Walter Holm Co. v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009 (D.C. Cir. 1971) (Judges McGowan, Leventhal and Van Pelt); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (D.C. Cir. 1973) (Judges Bazelon, Tamm and Leventhal).

It is fair to say that in all of our opinions the assumption was that particular issues might require additional procedures, if they were contested, but that the basic framework of the rulemaking proceeding as one primarily dependent on general policy formulation was unaffected by the particular procedures. Of course, there remains a requirement of fairness for those with authority to act by rulemaking but the standards are not identical with those pertinent for judicial-type decisionmaking in adjudicatory actions.

Consider, for example, the assertions of an agency head that he discerns abuses that may require corrective regulation. One can hypothesize beginning an adjudicatory proceeding with an open mind, indeed a blank mind, a tabula rasa devoid of any previous knowledge of the matter. In sharp contrast, one cannot even conceive of an agency conducting a rulemaking proceeding unless it had delved into the subject sufficiently to become concerned that there was an evil or abuse that required regulatory response. It would be the height of absurdity, even a kind of abuse of administrative process, for an agency to embroil interested parties in a rulemaking proceeding, without some initial concern that there was an abuse that needed remedying, a concern that would be set forth in the accompanying statement of the purpose of the proposed rule.

In its administrative setting an agency's effort is not limited to one type of activity. Investigation and policy-making are integral to the total function just as much as decisionmaking. It is appropriate and indeed mandatory for agency heads and staff to maintain contacts with industry and consumer groups, trade associations and press, congressmen of various persuasions, and to present views in interviews, speeches, meetings, conventions, and testimony. The agency gathers information and perceptions in a myriad of ways and must use it for a myriad of purposes. With capacity and willingness to reconsider there is no basis for disqualification.

Ash Grove Cement Co. v. FTC, 577 F.2d 1368, 1375-1376 (9th Cir. 1978):

Information gathered by the Commission under its broad investigatory powers can be used for a variety of purposes, including promulgation of new rules, reporting to Congress, disseminating economic knowledge to the public, or, as here, to prepare an economic survey or report to enable the Commission to better administer the statutes over which it has jurisdiction. In addition, factual material compiled by the agency may call its attention to situations which warrant an adjudicative enforcement proceeding. . . . Indeed, one of the purposes of industry investigations is to provide the agency with increased expertise in administering the law by exposing it to the factual background of relevant industries against which to judge individual mergers and acquisitions.

Likewise, the fact that some of the Commissioners' conclusions expressed in the Enforcement Policy were mirrored in the complaint does not prove prejudgment. The Enforcement Policy was openly cautious to phrase its conclusions tentatively.

The tests of disqualification cannot be applied identically for judges and agency heads, for reasons already identified. Yet even judges are not disqualified merely because they have previously announced their positions on legal issues, even as to announcements outside the course of written decisions. Judicial disqualification cannot be based on general frame of reference, attitudes or assumptions as to the processes of society. And even a judge's public comment giving a general impression of a state of facts does not present a rigidity against refinement and reflection that disqualifies him from sitting in judgment on a particular fact issue.

FTC v. Cement Institute, 333 U.S. 683, 701, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) (Court used judicial analogy in the course of holding that Commission's expression of opinion on legality of a particular trade practice did not disqualify it from passing upon the lawfulness of the practice in an adjudicatory proceeding).

Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972).

"The great tides and currents which engulf the rest of men do not turn aside in their course, and pass the judges by." B. N. Cardozo, The Nature of the Judicial Process 167-68 (1921). "[A] judge is not prevented from sitting because he comes into every case with a background of general personal experiences and beliefs." In re Union Leader Corp., 292 F.2d 381, 388 (1st Cir. 1961). See In re J. P. Linahan, Inc., 138 F.2d 650 (2d Cir. 1943), for Judge Frank's wide-ranging discussion, distinguishing between the need for disinterestedness in courts, as essential to democracy, and the presence of preconceptions and attitudes which are inevitable. The opinion urges self-scouting as to uniquely personal prejudices. It concludes that a referee is not disqualified from conducting a trial because he earlier came to a judgment that was reversed.
See also Price v. Johnston, 125 F.2d 806, 811 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942), rejecting disqualification under 28 U.S.C. § 25, when the allegations "do not indicate a `personal' prejudice or bias against the accused, but charge an impersonal prejudice, and go to the judge's background and associations rather than his appraisal of the defendant personally."

United States v. Haldeman, 181 U.S.App.D.C. 254, 358, 559 F.2d 31, 135ff. (D.C. Cir. 1976) (Judge Sirica's statement in a television interview, at the time of the 1974 Judicial Conference, that defendants "can get just as fair a trial in the District of Columbia as any federal court," did not reflect "inability or indisposition on the judge's part to objectively weigh and act upon a request to relocate the place of trial should it develop that an unbiased jury could not be assembled in the District of Columbia."

B.

I now turn to what I consider a jurisdictional problem. In part it is addressed in part II of Judge Tamm's opinion, dealing with the doctrine of exhaustion of administrative remedies. I concur in many of Judge Tamm's observations, and the court's result. But my analysis is somewhat different.

The jurisdictional problems that concern me are first, whether, and under what circumstances, a Federal court has jurisdiction of an action to halt ongoing proceedings before an "agency" of the United States on the ground that they reflect impermissible bias or prejudice, and second, whether this can ever be done by a district court that has no jurisdiction to review the agency's final actions.

The doctrine of exhaustion of administrative remedies, which Judge Tamm discusses, is a judge-made prudential doctrine — a "rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The Court gave little weight to the claim "that the mere holding of the prescribed administrative hearing would result in irreparable damage." 303 U.S. at 51, 58 S.Ct. at 464.

The jurisdictional difficulty arises out of the requirement of finality, a related doctrine which also comes into play in this case, and which overlaps the requirement of exhaustion of administrative remedies but is analytically distinct. One requirement may be applicable even when the other is not.

The Administrative Procedure Act provides, § 10(c), now 5 U.S.C. § 704: "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action." Statutes with special provisions for judicial review reflect the the same basic approach, of limiting review to final actions, and that is the case for the Moss-Magnuson Act's provision for judicial review (in the court of appeals) of FTC rulemaking.

See 15 U.S.C. § 57a(e) providing that an interested person may file a petition "for judicial review" of a rule, not later than 60 days after a rule is promulgated by the Federal Trade Commission. Section 57a(e)(5)(B) provides:
The United States Court of Appeals shall have exclusive jurisdiction of any action to obtain judicial review (other than in an enforcement proceeding) of a rule prescribed under subsection (a)(1)(B) of this section, if any district court of the United States would have jurisdiction of such action but for this subparagraph.

Section 10(c) of the APA is a generalized provision for judicial review by the district court where no other form of judicial review is prescribed by Congress. But it requires more than exhaustion of administrative remedies, it also requires a final agency action. Association of National Advertisers, Inc. v. FTC, 565 F.2d 237 (2nd Cir. 1977). It is elementary that the mere conduct of proceedings on a proposal of a rule, which may never be adopted or enforced, is not final action, and a court will not enjoin a rulemaking proceeding on a claim that the agency had no statutory or constitutional authority to promulgate the proposed rule. Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 27, 424 F.2d 935, 940, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).

If a proceeding should eventuate in a rule that a party opposes, the party may challenge the final action adopting the rule on the ground that the rule is defective for reasons of disqualification of a member. Accordingly, this is not a case of agency action (other than final action) "for which there is no other adequate remedy in a court." Only in rare instances is a non-final agency action reviewed in the teeth of a general denial of jurisdiction. In Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) the Court was willing to bypass a general jurisdictional barrier when an agency clearly violated an express statutory prohibition. But the Leedom exception "is a narrow one." It is reserved for the kind of clear case that identified the original doctrine of mandamus.

Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964) (no jurisdiction to enjoin a representation election; In Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), the Court held Congress precluded review of a representation decision of the National Mediation Board.

A court must disclaim jurisdiction notwithstanding the claim that action already taken realistically means that the ongoing proceeding will be waste motion and will have to be done over again. This is "part of the price we pay for the advantages of an administrative process" and preferable to having the process "clogged if there were interlocutory appeals to the courts." Thermal Ecology Must Be Preserved v. Atomic Energy Comm., 139 U.S.App.D.C. 366, 368, 433 F.2d 524, 526 (1970). That opinion noted the possibility of an exception "in extreme instances where the action is held to constitute an effective deprivation of appellant's rights." Id. See also Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 250, 450 F.2d 698, 711 (1971).

Given these strong walls of jurisdictional barriers, and narrow gates of entrance, it is time to turn to the situation of a claim of prejudice or bias alleged to infect an agency proceeding at its core.

When a claim of bias is filed against a trial judge, his refusal to recuse himself is not appealable, there being no final order. However, there has been some tendency of the appellate courts to accept jurisdiction of the claim, notwithstanding their general confinement to review of final orders, of district courts, by reference to consider the matter on application for a writ of mandamus, at least in unusual cases, with jurisdiction predicated on the All-Writs Act, 28 U.S.C. § 1651. That jurisdiction is not routinely invoked, and rulings are generally phrased in terms of "exceptional circumstances." Mandamus was denied in Mitchell v. Sirica, 163 U.S.App.D.C. 373, 502 F.2d 375, cert. denied, 418 U.S. 955, 94 S.Ct. 3232, 41 L.Ed.2d 1177 (1974), notwithstanding the view of the dissent that the case was one of the "really extraordinary cases" that warrant mandamus, and that mandamus was appropriate under the All-Writs Act in cases "which are subject to our eventual appellate jurisdiction." (163 U.S.App.D.C. at 385, 502 F.2d at 387).

C. Wright A. Miller, Federal Practice and Procedure: Jurisdiction § 3553 at 387 (1975); 9 Moore's Federal Practice ¶ 110.13[10] at 187-188 (2d ed. 1975), cited in Judge Tamm's opinion at note 10.

Action Realty Co. v. Will, 427 F.2d 843 (7th Cir. 1970); Green v. Murphy, 259 F.2d 591 (3d Cir. 1958).

Even assuming arguendo that the case is one which this court would consider at an interlocutory stage as to a request for disqualification of a judge, it by no means follows that a court has jurisdiction to intervene in an ongoing administrative process. The courts have a limited supervisory province as to agencies, but it is not as direct as the supervision of appellate courts over trial courts, and there are distinct limitations on available judicial remedies. Vermont Yankee Nuclear Power Corp. v. National Resources Defense Fund, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed.2d 656 (1940); Greater Boston TV Corp. v. FCC (II), 149 U.S.App.D.C. 322, 335, 463 F.2d 268, 281 (1971).

Greater Boston TV Corp. v. FCC (I), 143 U.S.App.D.C. 383, 444 F.2d 841 (1970).

If there is to be an analogy to an expansion of mandamus of district judges, based on the existence of the appellate court's prospective jurisdiction, the jurisdiction would not lie in the district court, but in the court of appeals, which is where Congress had lodged general jurisdiction to review FTC orders and rules, 15 U.S.C. § 57a. To the extent that the All Writs Act has been used in connection with FTC matters, it is the court of appeals that has been found to have the power to grant relief. FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966). On this thesis I posit a total lack of jurisdiction in the district court to consider the merits of plaintiff's case in any way or to any extent. Thus, even if this case fell within an exception to the finality requirement, jurisdiction to consider the interlocutory action would lie in this court and not the district court. But I recognize that this thesis has not previously been identified by the court and was not perceived in the 1962 Amos Treat decision, to be discussed below. Amos Treat issued prior to the Supreme Court's Dean Foods decision and is subject to reconsideration on this point. But since this point is novel, and was not argued, I agree that it should not be given effect retrospectively.

The 1972 decision in Fitzgerald is not pertinent because the "final" agency order in that case would have been reviewable in the district court.

Reverting to issues of bias or prejudice, this court has basically exercised its supervision in the context of review of final orders, Cinderella Career Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 425 F.2d 583 (1970); Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 336 F.2d 754 (1964), vacated and remanded on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).

To the extent that there is any judicial jurisdiction to halt an ongoing agency proceeding — or what is the equivalent, to enter a declaratory judgment that it cannot result in a valid final action — that jurisdiction, whether exercised by this court or (let it be assumed) by a district court, is available only in a limited class of cases, not including the case at bar. There is always some problem of analysis when a court's determination of whether it has jurisdiction requires it to take a "peek at the merits." But I think the doctrine can be etched fairly clearly.

Internat'l Bro. of Teamsters v. Bro. of Railway, Airline and Steamship Clerks, 131 U.S.App.D.C. 55, 64, 402 F.2d 196, 205, cert. denied, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968).

The precedent primarily relied on by plaintiffs is Amos Treat Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962). The court enjoined an adjudicatory proceeding because one of the commissioners who had participated in certain rulings had previously, as a member of the staff, participated in the investigation. That decision was a ruling of a structural incapacity, which was necessary for a "fair trial" (113 U.S.App.D.C. at 103, 306 F.2d at 263). The next year another panel, Judges Bazelon, Bastian and Burger, described it as an "exceptional" case, SEC v. R. A. Holman Co., 116 U.S.App.D.C. 279, 323 F.2d 284, cert. denied, 375 U.S. 943, 84 S.Ct. 350, 11 L.Ed.2d 274 (1963). In Holman the court refused to halt an SEC adjudicatory proceeding on the ground that one of the commissioners had headed a division with responsibility over the registration statement involved. In Associated Press v. FCC, 145 U.S.App.D.C. 172, 448 F.2d 1095 (1971), the court followed Holman, not Amos Treat. And in Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971), the court followed Holman and referred to Amos Treat as a case "where the agency has very clearly violated an important constitutional or statutory right." (146 U.S.App.D.C. at 249, 450 F.2d at 710) (emphasis added).

The only instance where Amos Treat was followed, in terms of judicial intercession at a non-final stage, was Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972), and that, too, was a structural violation — the denial of a public hearing.

If a federal court, district or appellate, is to take jurisdiction before final agency action, it can only be in a case of "clear right" such as outright violation of a clear statutory provision ( Leedom) or violation of basic rights established by a structural flaw, and not requiring in any way a consideration of interrelated aspects of the merits — which can only be done appropriately on review of a final order. This statement of the doctrine of the exceptions to finality is etched more sharply here than in some of our previous opinions, though it is offered as an accurate statement of what the opinions as a whole were driving at. However, this sharpening of doctrine has aspects of novelty, since earlier expressions referred to denial of basic rights and did not articulate the qualifications of structural flaw, or defiance of an outright prohibition. On that basis, as will be indicated below, I am prepared to agree that the district court's acceptance of jurisdiction not be rescinded retroactively, and to acquiesce in its taking jurisdiction. That still leaves us, however, with the necessity to determine whether the judicial ruling (of disqualification) was proper on the merits. And it was not proper, in my view, for reasons developed in Judge Tamm's opinion for the court.

A strict logician might have ground to attack this concept of a jurisdictional ruling announced for the future. In the same way, a strict logician could assail the doctrine whereby courts deliberately decide, on prudential grounds, to pass over jurisdictional questions and to dispose of a case on the merits. But that doctrine is alive, and fortified by pragmatic considerations involved in sound judicial administration.

The doctrine is established by a number of precedents. See Secretary of Navy v Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Ripon Society v. National Republican Party, 173 U.S.App.D.C. 350, 361 n. 28, 525 F.2d 567, 578 n. 28 (1975) (en banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 (1976).

The case at bar is one where the very inquiry posed by plaintiff obviously requires some analysis of the views expressed by Chairman Pertschuk, and comparison with the issues as they will actually be focused in the ongoing proceeding. The Government puts forward substantial considerations in justification of Chairman Pertschuk's remarks — the proper purpose of calling the public's attention to possible abuses and to factors enhancing public understanding, the propriety of a hortatory role on a wide range of issues, the breadth of the underlying policy issues, as contrasted with the quality of rulings on specific, adjudicative effects (with the corollary likelihood of specific condemnation and stigma). But even if one pretermits all such considerations, the actual conduct of the proceeding may bear significantly on the relationship of the remarks to ultimate issues, let alone dispositions, which are necessary aspects of any claim of prejudicial bias.

These factors make it clear to me that any residue of the Amos Treat doctrine is inapplicable to this case.

C.

If this matter were to arise subsequent to the instant decision, it would in my view have been obligatory of the district court to deny jurisdiction, even assuming prefinality intervention as to the FTC is not confined to a circuit court of appeals, because this was not a case involving a defiance of an explicit statute, or a structural flaw denying basic rights. And in the future any exercise of jurisdiction by a district court should be reversed by a judgment vacating the district court's order, with instructions to dismiss for lack of jurisdiction. However, in this case I join in the order of reversal. This is partly due to the area of doubt left in the wake of our previous rulings, including Amos Treat and Fitzgerald, making it proper to consider that a more firm rule of prohibiting consideration of the merits should be announced for prospective application, under the Sunburst approach — so as to avoid undoing a ruling of district court jurisdiction to consider the merits, that was not unreasonable when made. Reinforcing our decision to consider the merits in this case is the fact that under its not unreasonable assertion of jurisdiction the district court issued a ruling on the merits that for more than a year has constituted a stain on the FTC proceeding. That stain would persist if the appellate court confined itself to a jurisdictional ruling, to the detriment of sound governmental process.

Great Northern Ry. Co. v. Sunburst Oil Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

The district court ruling issued November 3, 1978. Association of Nat'l Advertisers v. FTC, 460 F.Supp. 996 (D.D.C. 1978).

[104] MacKINNON, Circuit Judge (dissenting in part and concurring in part).

I concur in the Court's decision insofar as it holds that (1) the Appellee, Association of National Advertisers (hereafter Association) is not required to exhaust the rulemaking process before filing a court challenge to disqualify one of the Commissioners for bias in such rulemaking proceeding; and (2) that affected parties are entitled to have substantive rules of the Federal Trade Commission proscribing specific unfair or deceptive acts or practices promulgated by fair decisionmakers. However, I cannot agree with the holding of the majority that a member of the Commission engaged in the rulemaking proceeding can be disqualified only upon a showing by clear and convincing evidence that he has an unalterably closed mind on matters critical to the disposition of the rulemaking. Also, based on the analysis hereinafter detailed, I would hold that the Chairman has disqualified himself in this rulemaking proceeding even if the majority's "unalterably closed mind" standard is applied.

In my opinion the "unalterably closed mind", where it exists, in many cases is practically impossible to prove, imposes too high a barrier to the public's obtaining fair decisionmakers and is a higher standard than the Supreme Court has applied in its recent decisions. I would require any Federal Trade Commissioner to recuse himself, or failing that to be disqualified, upon a showing by a preponderance of the evidence that he could not participate fairly in the formulation of the rule because of substantial bias or prejudgment with respect to any critical fact that must be resolved in such formulation.

Also, in my view the majority opinion places too much reliance on the strict rulemaking/adjudication dichotomy, applied in earlier cases under the Administrative Procedure Act. The Magnuson-Moss Act creates a rulemaking procedure that combines elements of both rulemaking and adjudication, as those functions are exercised under the Administrative Procedure Act, and this blending of the two procedures makes it impossible to look at Magnuson-Moss rulemaking as anything but a combination of the two.

I. RULEMAKING BEFORE AND AFTER THE MAGNUSON-MOSS ACT.

Congress enacted the Magnuson-Moss Act on January 4, 1975. These amendments were part of the Federal Trade Commission Improvements Act (also known as the Magnuson-Moss Act, hereafter the Act) in which Congress limited the prior wide open authority of the Federal Trade Commission to make "rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce . . . " Section 18(1)(B). (Emphasis added). The Act blends some of the administrative procedures — rulemaking and adjudication — that had theretofore been rigidly separated in the Administrative Procedure Act. 88 Stat. 2193, 15 U.S.C. § 57a.

Prior to the Magnuson-Moss Act the Federal Trade Commission possessed great latitude in exercising its informal rulemaking authority. As was pointed out in the Senate debates, the amendment of its rulemaking powers by the Federal Trade Commission Improvement Act, as embodied in S. 356 of the 93rd Congress, 2nd Session (1974), was considered necessary because the Supreme Court "in a recent ruling had given the Federal Trade Commission very broad rulemaking power that was subject only to the due process requirement [and thereafter the House side in its consideration of S. 356 worked out] . . . considerable procedural safeguards . . . relating to the rulemaking power of the Federal Trade Commission." (Remarks of Senator Taft, 120 Cong.Rec. 40723, December 18, 1974).

The House Committee Report on the bill also complained of the "inadequate" proceedings that the Federal Trade Commission followed in its rulemaking.

The only procedural requirements that the FTC is required to observe are to afford notice of the proposed rulemaking, including a statement of its legal basis and the substance of the proposed rule or a description of the subjects and issues involved, and opportunity for comment in accordance with Section 553 of Title 5, United States Code. On judicial review such rules may only be set aside if they are found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; contrary to Constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedures required by law.

Your committee believes these rulemaking procedures and the scope of judicial review are inadequate for proceedings in which the integrity of the proposed rule may rest on the resolution of issues of material fact. We believe that the rulemaking procedures and judicial review provisions of section 202 (described below) afford the safeguards which are needed.

H.Rep. No. 93-1107, June 13, 1974, 93rd Cong., 2nd Sess., 33 U.S. Code Cong. Admin. News 1974, pp. 7702, 7715. To provide the "needed . . . safeguards" the House passed its bill that with some modifications made by the Senate, resulted in the Federal Trade Commission Improvements Act of 1974, supra. It is obvious from the foregoing that one of the principle purposes of the amendments was to improve the "integrity [of Commission rulemaking that rested] . . . on the resolution of issues of material fact." This is an obvious reference to the adjudicative function involved in the promulgation of rules on unfair and deceptive practices by the Commission.

In adopting the Magnuson-Moss (M-M) Amendments Congress authorized the Commission to promulgate rules that defined specific "unfair or deceptive acts or practices in or affecting Commerce" and tightened up the procedures that the Commission was required to follow in exercising this very considerable authority. See section 18(a)(1)(B). The M-M Amendments provided for (1) advance notice of the proposed rule and the reason therefor, (2) an informal hearing with oral or written submissions, (3) cross-examination on disputed issues, (4) right to rebuttal, (5) verbatim transcripts of all oral presentation to be made available to the public; and that (6) the rule be supported by the whole of the rulemaking record, and (7) the basis and purpose of the rule be set forth in a statement. The Commission was also required to take into account (8) the economic effect of any such rule and (9) the effect on small business and consumers. (10) The promulgation of the rule was made subject to judicial review by the Courts under 5 U.S.C. § 706(2) and (11) could be declared unlawful if the Court found it was not "supported by substantial evidence in the rulemaking record . . . taken as a whole." (12) The subsequent amendment or repeal of rules was also made subject to judicial review in the same manner as the original adoption of such rules. In addition (13) the court was required to find the rule to be unlawful if the Commission, by the denial of cross examination or rebuttal submissions, had precluded disclosure of material facts which was necessary for fair determination by the Commission of the Rulemaking proceeding taken as a whole.

The statute provides:
"(3) Upon the filing of the petition under paragraph (1) of this subsection, the court shall have jurisdiction to review the rule in accordance with chapter 7 of title 5, [United States Code] and to grant appropriate relief, including interim relief, as provided in such chapter. The court shall hold unlawful and set aside the rule on any ground specified in subparagraphs (A), (B), (C), or (D) of section 706(2) of title 5. [United States Code] (taking due account of the rule of prejudicial error), or if —

"(A) the court finds that the Commission's action is not supported by substantial evidence in the rulemaking record (as defined in paragraph (1)(B) of this subsection) taken as a whole, or

"(B) the court finds that —

"(i) a Commission determination under subsection (c) that the petitioner is not entitled to conduct cross-examination or make rebuttal submissions, or

"(ii) a Commission rule or ruling under subsection (c) limiting the petitioner's cross-examination or rebuttal submissions, has precluded disclosure of disputed material facts which was necessary for fair determination by the Commission of the rulemaking proceeding taken as a whole.

88 Stat. 2195-2196, 15 U.S.C. § 57a(e)(3).
§ 18(e)(1)(B) provides:
"(B) For purposes of this section, the term `rulemaking record' means the rule, its statement of basis and purpose, the transcript required by subsection (c)(4), any written submissions, and any other information which the Commission considers relevant to such rule. (Emphasis added).
§ 18(c)(4) provides:
"(4) A verbatim transcript shall be taken of any oral presentation, and cross-examination, in an informal hearing to which this subsection applies. Such transcript shall be available to the public.

Id.

Senator Taft commented on the effect of these provisions of the Bill as follows:

I would particularly like to point out that the provisions relating to rulemaking, power are very broad. When we are dealing with the FTC, its authorizations, and areas of procedure we are not dealing with what we usually consider to be a rulemaking power of a Government agency.

We are dealing with an agency where, under the antitrust laws, rules are often made that relate to very specific cases, particularly specific industries, and prescribe certain requirements relating to those industries. They perhaps even limit the type of material that can be produced, the type of material that can be sold and how it can be sold.

In other words, the actual rights of individuals and business concerns are involved here.

So we are really dealing not merely with the rulemaking proceedings, but in many cases, for all practical purposes, with an adversary proceeding.

120 Cong.Rec. 40723-40724, December 18, 1974. (Emphasis added).

It is thus apparent that the promulgation of unfair or deceptive practices under the Magnuson-Moss Act differs greatly from mere informal rulemaking under the tight compartments first established by the Administrative Procedure Act in 1946 ( 60 Stat. 238-239).

The majority's opinion criticizes the characterization by the District Court of Federal Trade Commission rulemaking under the Magnuson-Moss Act as "hybrid" or quasiadjudicative on grounds that it "ignores the clear scheme of the APA." Of course such Magnuson-Moss Act rulemaking ignores the clear scheme of the APA. That was one of the stated and obvious purposes of the Act — to provide greater protection to the public that would be affected by the FTC rules, by providing some reasonable safeguards when the Commission promulgated rules prescribing specific "unfair or deceptive acts or practices." Rulemaking under the Administrative Procedure Act prior to the Magnuson-Moss Act was ordinarily cast either in an adjudicatory or rulemaking context but the Magnuson-Moss Act changed all of this for rulemaking of unfair or deceptive acts or practices by the Federal Trade Commission. See Majority Opinion p. ___ of 201 U.S.App.D.C., p. 1159 of 627 F.2d.

Id.

See this court's opinion in Chocolate Manufacturers Association of United States, Inc. v. F. T. C., 199 U.S.App.D.C. 29, 617 F.2d 611 (D.C. Cir. 1979) in which we referred to the Magnuson-Moss Act as "a codification of the hybrid approach between adjudication and rulemaking". 199 U.S.App.D.C. at p. 33, 617 F.2d at p. 615.

The Court's opinion is couched too much in a rulemaking/adjudication dichotomy and tries to pigeonhole Commission action into one or the other. For instance, it states that the "presence of procedures not mandated by Section 553 . . . does not . . . convert rulemaking into quasi-adjudication . . . ." That statement however blinks at the reality that exists in this instance of rulemaking. It should also be noted that Professor Davis, in setting forth his suggested "Official Notice" for rulemaking proceedings, defines " adjudicative facts [as] facts relating to the parties to the case . . . when a rule is formulated in an on-the-record proceeding." The Commission's action in promulgating the instant rules is required to be supported by substantial evidence in the rulemaking record as a whole. However, regardless of labels, the procedures required by M-M in this case certainly converts the Commission's action into something that is not wholly covered by Section 553 and that is not wholly quasi-adjudication. The Act creates a new form of Commission action that is outside the informal rulemaking category as previously covered solely by section 553, by the addition of elements that definitely involve adjudication.

Davis, Administrative Law of the Seventies, § 15.00-8, at 376 (1976). There is no indication that Professor Davis intended to refer to "rules . . . made on the record", the phrase that triggers formal rulemaking under §§ 556, 557 of the Administrative Procedure Act.

II. ADJUDICATIVE CHARACTER OF MAGNUSON-MOSS ACT PROCEEDINGS.

Professor Davis has pointed out that some rulemaking may involve the determination of adjudicative facts:

The first step is probably to recognize that the reality [of rulemaking procedures] is a spectrum rather than a dichotomy; some facts are clearly adjudicative, some are clearly legislative, some are probably one or probably the other but not clearly, and some seem impossible to classify. So the adjudicative or legislative character of facts is a variable, and other variables must also be taken into account — the degree of doubt or certainty about the facts, and the degree of their bearing upon the controversy. When facts are clearly adjudicative, disputed, and critical, a party should be entitled to all the procedural protections of a trial. When facts are legislative, reasonably clear, and peripheral to the controversy, the tribunal may assume them without even mentioning them. The problem cases are those in which the three variables pull against each other. (Emphasis added).

Davis, Administrative Law of the Seventies, § 15.00-8, at 375 (1976).

These observations clearly describe many of the aspects of the Magnuson-Moss Rulemaking and in the last sentences reach the facts of this case.

The adjudicative character of some of the proceedings under the Magnuson-Moss Act is also reflected in the April, 1979 recommendation made by the Administrative Conference with respect to the trade regulation rulemaking project of the Federal Trade Commission. Therein the Conference stated:

As a general practice the Commission, after the close of the first period of submission of written comments, should conduct a legislative-type hearing, following which it should determine whether there are "disputed issues of material fact it is necessary to resolve". If there are determined to be such issues, they should be designated with specificity, and a quasi-adjudicative hearing, in accordance with section 18(c) of the Federal Trade Commission Act, should be held on them.

April, 1979 Recommendations of the Administrative Conference, paragraph 12. (emphasis added)

One should not be blind to the fundamental changes made in Commission procedures for regulating unfair and deceptive acts and practices by the Magnuson-Moss Act. The Separate Views on Title II of the Act by 12 members of the House Commerce Committee that strongly supported the new rulemaking procedures of the Magnuson-Moss Bill, also indicated that Congress knew that it was making substantial changes in the informal rulemaking proceedings provided for in section 553 of the Administrative Procedure Act. Cf., Commission's pre-1975 Rules and Procedures, Section 1.16 to (c), (d). The statement of the 12 members included the following:

When a statute provides authority to a Federal administrative agency to issue rules of general applicability but is silent on the procedures which the agency is required to follow in issuing such rules, only the procedural requirements of Section 553 of Title 5, United States Code apply to any rulemaking proceeding undertaken pursuant to that authority. This means that the agency is required to do no more than to provide notice of the proposed rulemaking in the Federal Register and allow interested persons the opportunity to submit written comments on the proposal. There is no right to appear in person before the agency, to cross-examine, to submit rebuttal evidence or to insist that the agency decide solely on the basis of information available at the public hearing. Also, the scope of judicial review under such procedures is very narrow. On judicial review, such rules could be set aside if they were found to be arbitrary, capricious or an abuse of discretion, unconstitutional, in excess of statutory authority or without observance of procedures required by law. (H.R. Rep. No. 93-1107, 93rd Cong.2d Sess. (1974) at 85, U.S. Code Cong. Admin.News 1974, pp. 7702, 7751.) (Emphasis supplied.)

These criticisms of informal rulemaking under Section 553 were what the 12 members considered they were changing for the making of unfair and deceptive acts and practices rules by the Federal Trade Commission under the Magnuson-Moss Act.

III. DOES THE SUBSTANTIAL EVIDENCE STANDARD OF THE MAGNUSON-MOSS ACT APPLY ONLY TO DISPUTED ISSUES OF MATERIAL FACT OR DOES IT ALSO APPLY TO FINDINGS AND DETERMINATIONS OF LEGISLATIVE FACT?

The substantial evidence scope of review of a Magnuson-Moss proceeding further illustrates its adjudicatory nature. However, the Commission contends that "the substantial evidence" standard for judicial review was intended only to apply to "the findings and conclusions of the Commission with regard to disputed issues of material fact on which the rule is based" and "would not apply to findings or determinations of legislative fact". The Conference Report does make this statement but the plain language of Section 18(e)(3)(A) provides that the Court shall set aside the rule if:

Whether the "disputed issues of material fact" involve adjudicative or legislative facts is clearly not settled. The majority opinion finds that the Section 18 hearing on disputed issues of material fact does not involve legislative facts — and also cites authority that it does. Maj. op. at pp. ___-___ of 201 U.S.App.D.C., pp. 1162-1165 of 627 F.2d.
I note only that whatever characterization be accorded such disputed issues of material fact, the Commission is not authorized to prejudge them prior to the Section 18 hearing.

(A) the court finds that the Commission's action [promulgating the rule] is not supported by substantial evidence in the rulemaking record . . . taken as a whole.

15 U.S.C. § 57(e)(3)(A).

The Commission's contention in this respect, which seeks to answer attacks upon the "rule" that the Commission promulgated, in addition to being contrary to the language of the statute, is also contrary to the statements of Senator Moss and Representative Broyhill and others made on the floor of Congress during passage of the Magnuson-Moss Act. The reason for such amendments to the Commission Act was explained by Senator Moss as follows:

The concurrent resolution corrects a technical deficiency in the conference report whereby the words "with regard to disputed issues of material fact on which the rule was based" modified both the words "findings" and "conclusions" whereas they pertained only to findings. In order to clarify the situation, the word "action" was chosen to indicate the intention to have factual determinations reviewed on the basis of substantial evidence. Conclusions arising from these factual determinations would be reviewed as is normal: Do the facts supported by substantial evidence support the conclusions on the basis of logic. (120 Cong. Rec. 40725 (Dec. 18, 1974) (remarks of Sen. Moss) (emphasis added); accord, id. at 40724 (remarks of Sen. Taft).)

Similarly as Representative Broyhill observed:

[I]t is necessary to clarify the language in the conference report, not because of any disagreement among the conferees but because of some legal interpretation of the language which was included in the conference report. We want to make crystal clear that any rules issued by the commission must be based upon the substantial evidence that is developed in consideration of the rule. That is the purpose of the amendment — to clarify the provision in the Judicial Review section. (120 Cong.Rec. 41408 (Dec. 19, 1974) (remarks of Rep. Broyhill) (Emphasis added).)

Senator Taft remarked:

[A]s I understand it . . . [the resolution] will have the effect of amending that provision to read that the clerk [sic] [court] finds that the Commission action is not supported by substantial evidence in the rulemaking record taken as a whole. (120 Cong.Rec. 40724 (Dec. 18, 1974) (remarks of Sen. Taft).)

This legislative history indicates, and Representative Broyhill's statement is the clearest, that "substantial evidence" in the rulemaking record as a whole is required to support any rule proscribing any specific unfair or deceptive act or practice promulgated by the Commission. To the extent that the statement by Senator Moss expressed a different formulation, it only varied slightly to require that any rule that the Commission adopted must follow logically from findings of fact supported by substantial evidence on the record as a whole. If there is any material difference in the actual application of these two analyses, it is relatively immaterial in determining the Chairman's disqualification in this case, because both point to the controlling effect that results from decisions of the Commission on factual findings and conclusions therefrom and these are the precise areas where the Chairman by his prior statements and conduct has indicated his bias and prejudgment.

To all of these comments with respect to Section 18 rulemaking should be added an extract from a recent article by Professor Antonin Scalia, the former Chairman of the Administrative Conference of the United States. In the article, Professor Scalia decries the "balkanization of administrative law" and blames (besides this court) Congress' increasing interest in promulgating unique procedural requirements with each new statute. Scalia would opt instead for "standardizing mandatory administrative procedures within a manageable number of well-known and well-litigated forms," and describes how Congress' disinclination to do so in the Magnuson-Moss Act necessarily produced the result reached by Judge Gesell in the court below.

That such a consummation is devoutly to be desired is exemplified — indeed, almost caricatured — by the recent case of Association of Nat'l Advertisers, Inc. v. FTC [ 460 F.Supp. 996 (D.D.C. 1978)], involving a petition to disqualify the Chairman of the FTC for prejudice in a rulemaking proceeding conducted pursuant to the peculiar procedures of the FTC Improvement Act of 1975 . . . Chairman Pertschuk had forcefully expressed his firm views concerning the subject of the proceeding — FTC regulation of children's advertising. Such expression of prejudice would clearly have been disqualifying in formal adjudication and almost certainly in formal rulemaking. It has never been thought to be disqualifying in informal rulemaking, though it is admittedly difficult to recall so vigorous an expression of prejudgement in a pending proceeding. But the FTC Improvement Act had given what it called informal rulemaking so many of the characteristics of formal adjudication (or formal rulemaking) that it was difficult to decide which standard of conduct should govern. As Judge Gesell noted, it was "in fact a hybrid proceeding, unique to the Federal Trade Commission." [ Id. at 997.] The court's disqualification of Chairman Pertschuk was based on constitutional grounds — to which the foregoing considerations should be irrelevant. I think, however, that the issue should have turned upon statutory intent with respect to a procedural area (expression of bias or prejudice) not specifically addressed by the APA. On that point, the nature of the statutorily prescribed procedures would be crucial, and infinite variation would make predictability most difficult. (Scalia, Vermont Yankee: The APA, the D.C. Circuit and the Supreme Court, 1978 Sup.Ct.Rev. 345, 408-409 n. 255.) (Emphasis added).

Thus, Professor Scalia agrees that the result reached by Judge Gesell, with which I agree, is dictated by the unusual procedural model of the Magnuson-Moss Act. His. italicized characterization of the "[forceful and] vigorous . . . expression of prejudgment [and] . . . prejudice" is a sound evaluation of the prejudicial character of the Chairman's remarks and conduct by an impartial and learned observer. It is also my view that Chairman Pertschuk's disqualification can be supported on statutory grounds, i. e., the statute requires action to be determined by the Commission on the record evidence as a whole; such determination necessarily implies a fair determination, otherwise the presentation of evidence is a hollow formality.

IV. THE MAJORITY'S DESCRIPTION OF THE CHAIRMAN'S REMARKS CONDUCT. [136] The majority opinion holds, and I agree with such holding, that "The appellees have a right to a fair and open proceeding; that right includes access to an impartial decisionmaker." Maj. op. p. ___ of 201 U.S.App.D.C., p. 1174 of 627 F.2d. However, the majority considers that one qualifies as an "impartial decisionmaker" unless he is shown by clear and convincing evidence to have an unalterably closed mind on matters critical to the children's television proceeding. This rule would establish a legal principle that evidence of bias and prejudice would not be disqualifying unless it could surmount a fence that is horse high, pig tight and bull strong. In my view that is too much protection for a biased decisionmaker. In a great many instances it would deprive the public of decisionmakers that are actually "impartial".

The current case is a good example and also illustrates how strong evidence of prejudgment can be played down to almost sanitize the attitudes expressed. Such softening of the Chairman's remarks is illustrated by the following excerpts from the majority opinion:

Chairman Pertschuk's remarks, considered as a whole represent discussion, and perhaps advocacy, of the legal theory that might support exercise of the Commission's jurisdiction over children's advertising. The mere discussion of policy or advocacy on a legal question, however, is not sufficient to disqualify an administrator. To present legal and policy arguments, Pertschuk not unnaturally employed the factual assumptions that underlie the rationale for Commission action. The simple fact that the Chairman explored issues based on legal and factual assumptions, however, did not necessarily bind him to them forever. Rather, he remained free, both in theory and in reality, to change his mind upon consideration of the presentations made by those who would be affected.

Maj. op. pp. ___-___ of 201 U.S.App.D.C., pp. 1171-1172 of 627 F.2d. [Footnote omitted].

The opinion then indulges in a more particularized discussion of some of the specific comments that the Chairman made and that are not denied on this record, and further concludes:

The materials [Pertschuk's comments], merely demonstrate that Pertschuk discussed a legal theory by which the Commission could adopt a rule, if circumstances warranted. The statements do not demonstrate that Chairman Pertschuk is unwilling or unable to consider rationally argument that a final rule is unnecessary because children are either unharmed by sugared products or are able to understand advertising. The appellees have failed to make a clear and convincing showing that Chairman Pertschuk has an unalterably closed mind on matters critical to the children's television proceeding.

Maj. op. pp. ___-___ of 201 U.S.App.D.C., pp. 1173-1174 of 627 F.2d.

This bland characterization of the opinions and attitudes expressed in public and private by Chairman Pertschuk completely fails to portray the "prejudgment" and bias that is indicated by his actual remarks and conduct. It nowhere expresses the predisposition that his remarks actually revealed and thus fails accurately to evaluate the Chairman's state of mind on children's TV advertising. And this is not all; the majority raises even further obstacles to disqualifying a Commissioner on the ground of actual bias by asserting:

We are concerned that implementation of the Cinderella standard in the rulemaking context would plunge courts into the midst of political battles concerning the proper formulation of administrative policy. We serve as guarantors of statutory and constitutional rights, but not as arbiters of the political process. Accordingly, we will not order the disqualification of a rulemaker absent the most compelling proof that he is unable to carry out his duties in a constitutionally permissible manner.

Maj. op. p. ___ of 201 U.S.App.D.C., p. 1174 of 627 F.2d.

No mention is made of the necessity that the rulemaker be a fair decisionmaker as implicitly required by the statute. There is no support for this attempt to inject "political" fears as a factor to negate disqualification. Of course, some can find politics in most everything done by government, but there is no showing here that it would be an improper interference with the "political process" to apply the proper rule of disqualification, any more than it was when this court found Chairman Dixon of the Federal Trade Commission to be disqualified to participate in a particular FTC adjudicative matter. Cinderella Career and Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 425 F.2d 583 (D.C. Cir. 1970). While it may have been Congress' design to place Commissioners in the dual roles of policymaker and decisionmaker, it was also Congress' intent that parties to Magnuson-Moss Act rulemaking have their evidence considered fairly and impartially. Hence, in disqualifying a decisionmaker who cannot decide with the requisite degree of fairness and impartiality, we would protect the political process, rather than interfere with it.

In addition to understating the Chairman's remarks, the majority does not attempt to actually portray them, or to apply them in all their verbiage, against the standard for disqualification that the majority establishes. This needs to be done.

I begin such analysis with the definite opinions expressed by the Chairman. On TV's Today Show on October 31, 1977 he admitted that "the implicit indication of [his] personal opinions in these replies are [sic] self-evident." By this statement he recognized that it is the implicit indications of his personal opinions that should be evaluated. He next stated: "I have some serious doubt as to whether any television advertising should be directed at a 3 or 4 or 5 year old, a pre-schooler . . . we have never treated children as commercial objects in our society." This expresses a very firm opinion that, by its advertising, television was treating such children as "commercial objects" — presumably trigger words in his vocabulary.

Next, in response to the question whether he would like to see the Federal Trade Commission ban children's advertising altogether he replied "not necessarily. But we've not excluded the possibility of bans on certain advertising of certain products to children." In the next paragraph, in an apparent attempt to save the Commission from the taint of any bias that his personal statements indicate, he attempts to spread the responsibility by stating that there are 4 other Commissioners and consequently his views do not bind the others. However, a Commission is prohibited from acting with even one biased Commissioner. See American Cyanamid Company v. FTC, 363 F.2d 757, 767 (6th Cir. 1966); Berkshire Employees Association of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3rd Cir. 1941). Then the Chairman stated that the Commission has "not as a body yet approached the question of a remedy for the evils we see in children's advertising." So the Commission (we) had already determined that the advertising was "evil". Apparently the only issue was what remedy to apply.

Next, in his speech to the Action for Children's Television Research Conference at Boston on November 8, 1977, he referred to the " moral myopia of children's television advertising." (Emphasis added). He also stated that "advertisers seize on the child's trust and exploit it as a weakness for their gain." (Emphasis added). These remarks evidence definite conclusions, definite opinions and a biased slant. Later he stated: "using sophistication techniques like fantasy and animation, they [TV advertisers] manipulate children's attitudes". (Emphasis added). This also indicates a prejudgment of the purpose and intent of TV advertisers.

He then argued:

Why isn't [the] . . . principle [that those responsible for children's well being are entitled to the support of laws designed to aid discharge of that responsibility] applicable to television advertising directed at young children? Why shouldn't established legal precedents embodying this public policy be applied to protect children from this form of exploitation? In short, why isn't such advertising unfair within the meaning of the Federal Trade Commission Act and, hence, unlawful? (Emphasis added)

Can any reasonable person contend that such remarks do not indicate that he has prejudged TV Advertising and decided that it exploits children?

He next delves into the millions of family relationships and indicates that he has decided that Commission action is required because he finds:

[children] cannot protect themselves against adults [the advertisers] who exploit their present-mindedness . . . (and exploit their "credulousness").

He has already concluded that children under five in the United States are not sufficiently under parental control to prevent them from begin victimized by TV advertising. The foregoing remarks indicate that Chairman Pertschuk has already decided that children are being subject to "exploitation" by children's advertising. That may be so, and the evidence might prove it, but it is apparent that he so decided before any evidence was introduced.

Finally he asserts:

Shouldn't society apply the law's strictures against commercial exploitation of children, and the law's solicitude for the health of children to ads that threaten to cause imminent harm — harm which ranges from increasing tooth decay and malnutrition to injecting unconscionable stress into the parent-child relationship?

This indicates the Chairman has already formed an opinion that television advertising is interfering with the relationship between parents and their children that only intervention by the Federal Trade Commission can correct.

Also, his recounting that he has talked about the " unfairness of advertising aimed at children" indicates he has concluded that such advertising is "unfair". With such conclusion already reached the only problem is how to prove it and what to do about it. He thus indicated he is not seeking to find what the evidence proves but what evidence can be found to prove his prejudgment. Whether it is "unfair" or not is the precise issue that was supposed to be the subject of the hearings.

In addition, he stated that " only a ban on the advertising of these products on programs directed towards the young child can remedy their inherent defect, although we must explore all remedial approaches to the problem." (Emphasis added). In other words, he has concluded that children's advertising has "inherent defect[s]", which he does not identify, "that only a ban" can correct the situation, and that he would explore other approaches.

In his final statement to the Conference he stated:

If the Commission is to reach sound and reasoned judgments, it must also hear from the parents, the teachers, the pediatricians, the dentists, those health and education specialists on whom we rely for the advocacy of our children's best interest. We must be rigorous and open-minded in our analysis of both law and fact. At stake are fundamental questions about the extent to which our society will permit the treatment of children as commercial objects rather than formative human beings entrusted to our care.

The majority opinion refers to the statement that "we must be rigorous and openminded in our analysis of both law and fact" as an indication of the fairness of the speaker. However, in the context in which this speech was delivered, these remarks appear much more as an admonition that the Commissioners must steel themselves against those who would "permit the treatment of children as commercial objects [and stop the Commission (we) from] hear[ing] . . . the parents, the teachers, the pediatricians, the dentists [etc. and those others who are advocating what he terms to be] the children's best interest".

Finally he postulates the problem as being to determine the "extent to which [the Commission is] to permit the treatment by television of children as commercial objects."

In a 1978 Newsweek article the Chairman is quoted as follows:

`Commercialization of children has crept up on us without scrutiny or action', says Michael Pertschuk, the agency's new chairman. ` It is a major, serious problem. I am committed to taking action.' (Emphasis added).

This statement is not denied. That he is "committed to taking action" cannot be construed as indicating that he is merely going to urge fellow Commissioners to hold hearings but rather that he has already concluded that "a major, serious problem" exists and the only remaining problem is to decide what the Commission should do about it. This supports what he has said before, that practically his sole concern is what action the Commission should take.

Finally we come to several letters written by the Chairman. Their full contents should be noted:

November 9, 1977

MEMORANDUM

TO: Charlie Ferris

FROM: Mike Pertschuk

Now after shooting my mouth off for three months here's our effort at putting some legal underpinnings under our initiatives on children's advertising. I should probably come over in the next couple of days to make sure that we don't cross each other inadvertently.

* * * * * *

November 9, 1977

MEMORANDUM

TO: Coleman [sic] McCarthy

FROM: Mike Pertschuk

Coleman, I know you share my concern in raising public consciousness to the part we play as a society for permitting children to be made commercial objects. I thought you'd want to see this statement in which I've tried to establish underpinings [sic] for a fundamental assault on television advertising directed toward young children.

(Emphasis added).

* * * * * *

November 9, 1977

MEMORANDUM

TO: Senator Stevens

FROM: Mike Pertschuk

Senator, I thought your floor statement on children's advertising was just great and really appreciate your support once again.

I thought you might be interested in the speech I gave in Boston yesterday in which I tried to lay out the legal underpinings [sic] — which I'm convinced are strong — for decisive action by the Commission in areas of children's advertising abuses. Thanks.

On November 17, 1977 he wrote the Honorable Donald Kennedy as follows:

November 17, 1977

Honorable Donald Kennedy Food and Drug Administration Parklawn Building 5600 Fishers Lane Rockville, Maryland 20852

Dear Don:

Setting legal theory aside, the truth is that we've been drawn into this issue because of the conviction, which I know you share, that one of the evils flowing from the unfairness of children's advertising is the resulting distortion of children's perceptions of nutritional values. I see, at this point, our logical process as follows: children's advertising is inherently unfair. As a policy planning agency we have to make judgments as to our priorities. The first area in which we choose to act is an area in which a substantial controversy exists as to the health consequences of encouraging consumption of sugared products (not just cereals). With this formulation we do not have to prove the health consequences of sugared cereals. What we do have to prove is that there is a substantial health controversy regarding the health consequences of sugar — a much lower burden of proof.

I'm convinced that the convergence of public policies regarding the commercial exploitation of children with the health controversy over sugared products give us a stronger base and frankly deal directly with the underlying concerns which prompt our action.

Sincerely yours, Michael Pertschuk

(Emphasis added).

These letters indicate that by November 17, 1977, the Chairman had a "conviction" that there are " evils flowing from the unfairness of children's advertising . . ." and he had been vigorously marshalling sentiment throughout the nation for a "fundamental assault on television advertising directed toward young children." Letter of November 9, 1977 to Colman McCarthy. So by that date he was already convinced that children's advertising was evil and unfair. He then advocates the legal theory for authorizing the Commission to take such action as he might advocate. His final paragraph is likewise strong evidence of the extent of his prejudgment.

I'm convinced that the convergence of public policies regarding the commercial exploitation of children with the health controversy over sugared products give us a stronger base and frankly deal directly with the underlying concerns which prompt our action. (Emphasis added).

In his letter of November 9, 1977 to Charlie Ferris he said that "after shooting my mouth off for three months here's our effort at putting some legal underpinings [sic] under our initiatives on children's advertising". He has already concluded, as his letter to Colman McCarthy indicates, that society in an "evil" manner, possibly attributable to "moral myopia", has permitted children to be made commercial objects.

Thus, if the Notice of Rulemaking were truthful, so far as Chairman Pertschuk's views were concerned, it would have stated in substance:

The Commission has decided to make a fundamental assault upon Children's Advertising on TV because we are convinced that it is evil, unfair and allowed solely because of the moral myopia of the public and the industry. We solicit comments as to whether it should be prohibited entirely or to some lesser degree.

VI. AGENCY RULEMAKING AND CONGRESSIONAL LEGISLATION — COMMISSIONERS AND CONGRESSMEN.

Notwithstanding that the majority opinion holds that a "fair decisionmaker" is to be guaranteed for this rulemaking, the opinion seeks to obviate such guarantee, if I read the opinion correctly, by holding that Commissioners in their Magnuson-Moss rulemaking are to be considered the same as Congressmen, and the fairness with which they approach their rulemaking cannot be attacked because Congressmen are not subject to similar constraints in enacting legislation.

To reach such result the majority opinion compares Section 18 unfair and deceptive practice rulemaking by the Federal Trade Commission to the enactment of legislation by Congress and likens the appointed Commissioners of the Federal Trade Commission to the Senators and Representatives elected to Congress. It points out that courts have not imposed procedural requirements on legislatures and that there is nothing to restrict Congressmen from prejudging factual and policy issues. The opinion also notes that legislators must have the ability to exchange views with constituents and suggest public policy dependent upon factual assumptions.

The Majority opinion states:

No court to our knowledge has imposed procedural requirements upon a legislature before it may act. Indeed, any suggestion that congressmen may not prejudge factual and policy issues is fanciful. A legislator must have the ability to exchange views with constituents and to suggest public policy that is dependent upon factual assumptions. Individual interests impinged upon by the legislative process are protected, as Justice Holmes wrote, `in the only way that they can be in a complex society, by [the individual's] power, immediate or remote, over those who make the rule.' Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915).

Maj. op. p. ___ of 201 U.S.App.D.C., p. 1165 of 627 F.2d.

The majority opinion quotes the unprecedented views of Professor Glen O. Robinson, a former member of the Federal Communications Commission, as follows:

Although members of agencies such as the FCC certainly do perform significant judicial functions in deciding individual cases, they perform even more tasks of a legislative or an executive character. When the FCC, for example, promulgated regulations barring common ownership of local newspapers and broadcast stations, it performed a legislative task, pure and simple. In reaching the decision, the Commission was neither bound by, nor expected to conform to, the confining procedures or standards of a court. [The FCC, however, was not acting under the strictures of the Magnuson-Moss Act] Why then should the decisionmakers be stamped from a judicial case? Insofar as the agency is delegated broad legislative powers and responsibilities, would it not be at least as appropriate to measure agency members against standards used to evaluate legislators? Such standards would place agency members on a better standing with respect to judges and would create an entirely new frame of reference for assessing agency performance. The supremacy of carefully reasoned principle — the supposed ideal of judicial decision — necessarily would yield to the dictates of political compromise and expediency, which are the accepted hallmarks of legislative action. Correspondingly, the standard for evaluating the composition of the agencies would shift from an emphasis on professional training to an emphasis of representativeness. (Emphasis added) (Comment added)

This appears to be the source of the court's opinion that converts what is only a suggestion of Professor Robinson into a decision holding that the Commissioners of the Federal Trade Commission have the same authority as members of Congress. What an extreme ruling. Professor Robinson was honest when he admitted that this proposal "would create an entirely new frame of reference for assessing agency performance" but his article can be searched throughout without finding any suggestion that a court in one of its decisions could convert Federal Trade Commissioners into the equivalent of Congressmen. Professor Robinson's proposition could only be implemented by Congressional action, since agencies are purely creatures of congress.

It is true that legislators are not required to make findings of fact to support their legislation and that they cannot be disqualified by any court for bias, but there are other safeguards in the legislative process that compensate for the absence of such safeguards as are expressly imposed or implicit in the administrative process. First of all, legislators are elected by the voters of their district, and those in the House are elected for a relatively short term — only two years. They can be turned out very quickly if any bias they disclose offends their constituents. Secondly, there is a protection in the sheer size of Congress — 535 members of the House and Senate — that implicitly diffuses bias and guarantees that impermissible bias of individual members will not control. There is safety in numbers and a biased Congressman soon loses influence among the other members, if he ever acquired any. Also, the two house system and the Presidential veto are tremendous guarantees that legislation will not be the result of individual bias or even the impermissible bias of one house.

Moreover, the personal bias and prejudgment of an individual member of Congress is ordinarily a relatively immaterial matter because of the large number of members in each house. The House does provide that a member shall vote on each question unless he has a "direct personal or pecuniary interest in the event of such question." Rule VIII, Rules of the House of Representatives (1979). Most of the cases that arise involve pecuniary interests of the members and it is the practice that the member himself determines the question. Dechler's Procedures, Ch. 30, §§ 4.2-4.7; V Hind's, §§ 5950, 5951; VIII, 3071. In III Hind's § 2518 it is reported that Representative Boatner disqualified himself from voting in committee with respect to an investigation of a judge because he had preferred charges against the judge in the prior Congress. This decision by Representative Boatner to disqualify himself is particularly illustrative of the delicacy that should be applied in deciding on disqualification of officials who take a position that stands out in advocating a certain course of subsequent action.
Representative Boatner's personal interpretation of the disqualification rules is all the more significant because the weight of authority is that, short of a man voting on his own case, there is no authority in the House to deprive a member of the right to vote. V Hind's §§ 5937, 5952, 5959, 5966, 5967; VIII § 3072. Such situations raise extremely delicate questions of fairness, so public officials, like Congressman Boatner, and judges, should consider the appearance of fairness they present to the public, and most of all should recognize their own prejudgment and bias when it is apparent to the public.

Because these legislative safeguards were not applicable to Federal Trade Commissioners, Congress saw fit to impose other safeguards, i. e., (1) confirmation by the Senate, (2) limited terms for FTC Commissioners, (3) public notice and mandatory public hearings when proposing legislative type rules, (4) cross-examination, rebuttal, a public written record, a statement of reasons and purpose, and (5) a requirement that whatever rule is promulgated be supported by substantial evidence on the record as a whole, and (6) be subject to judicial review and other safeguards previously noted.

Congress considered these safeguards to be necessary to provide the same degree of protection that exists in Congress with respect to its exercise of legislative power. So the answer to that portion of the court's opinion that makes Congressmen out of FTC Commissioners, as I interpret it, is that the majority opinion elsewhere in citing 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), recognizes that such a fundamental change in agency procedure cannot be made by the courts. We cannot make Congressmen out of Commissioners any more than we could by our decision make errand boys for the court out of the members of the Nuclear Regulatory Commission. Courts cannot reduce or circumscribe statutory agency power and by the same token they cannot grant powers that only Congress can give. Courts have no power to supplant the Senate, House and President by creating a legislative body of five members whose acts would not be subject to judicial review except to the same extent as Congressional statutes. Such a body would actually be a five man Federal Trade Congress.

VII. FAIRNESS AND DISQUALIFICATION.

The majority refers to the act of Congress that authorizes the Commission to prosecute unfair and deceptive acts and practices by rulemaking and contends that due process does not require more procedures than Congress has provided. Vermont Yankee Nuclear Power Corp., supra, 435 U.S. at 524, n. 1, 98 S.Ct. 1197. However, a fair rulemaker is not a "procedure"; it is an implicit requirement that flows from any situation that calls for a result to be reached on evidence.

The opinion then jumps to assert that since

Congress is under no requirement to hold an evidentiary hearing prior to its adoption of legislation . . . . Congress need not make that requirement when it delegates the task to an administrative agency. [But it did.] ( Bowles v. Willingham, 321 U.S. 503, 519, 64 S.Ct. 641, 88 L.Ed. 892 (1944) (Citing Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915)). Accordingly, we must apply a disqualification standard that is consistent with the structure and purposes of section 18. (Comment added). Maj. Op. p. ___ of 201 U.S.App.D.C., p. 1166 of 627 F.2d.

I have no disagreement with the statement in the last sentence. My disagreement extends only to the conclusion the majority eventually reaches, i. e., that their result " is consistent with the situation and purposes of section 18." On this point I concur with Professor Scalia that the statutory intent evident in Section 18 requires Magnuson-Moss rulemakers to be without disqualifying bias or prejudgment.

The next assertion, by the author of the Cinderella opinion, is that we never intended the Cinderella rule to apply to a rulemaking procedure such as the one under review." (Emphasis added). So far as the other judges of the division of the Court that decided the Cinderella case are concerned, I believe this is an overstatement. We never expressed any opinion as to the application of our ruling in Cinderella to a Magnuson-Moss rulemaking proceeding. That issue was not involved in the case. We never concluded that the same principle did, or did not, apply to such proceedings. We applied the rule to disqualify the Chairman in Cinderella, a case involving an adjudication, because the parties had a right to a fair decisionmaker. Since, as the majority admits, a fair decisionmaker also is required here in the promulgation of substantive rules establishing specific unfair and deceptive acts and practices, no reason exists why the same rule should not be applied to this case in order to assure fair decisionmakers. How else could fair decisionmakers be obtained?

I would not restrict members of a regulatory commission in their public discussion of policy issues, and there is nothing in the requirement that rules should be promulgated after fair hearings by unbiased Commissioners that would prohibit administrators from discussing "the wisdom of various regulatory positions." The office of the Commissioner contemplates some such activity but that does not justify their overstepping ordinary bounds of reasonableness to become loud advocates and spend three months haranguing the public with their prejudgment on basic factual issues that they must eventually decide. Reasonable public discussion should not be restricted and our history indicates that requiring fairness in our decisionmakers has not inhibited public discussion. Very few public officials serving as members of regulatory agencies have ever been charged with overstepping reasonable bounds. But when a decisionmaker, who must rise above partisanship, descends to vigorous and consistent advocacy over a substantial period of time and commits himself in the public mind, he jeopardizes his ability to make fair determinations and in extreme cases, such as we have here, he should be disqualified from subsequently posing as a fair decisionmaker on the subject of his advocacy.

At pages ___, ___ of 201 U.S.App.D.C., pp. 1170-1171 of 627 F.2d the majority opinion concludes:

Accordingly, a Commissioner should be disqualified only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding. The `clear and convincing' test is necessary to rebut the presumption of administrative regularity. See, e. g., Withrow v. Larkin, 421 U.S. 35, 55, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 204, 598 F.2d 91, 123, (D.C. Cir. 1978). The `unalterably closed mind' test is necessary to permit rulemakers to carry out their proper policy-based functions while disqualifying those unable to consider meaningfully a section 18 hearing.

421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (Emphasis added).

However, while the majority cites Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), that case does not apply the "unalterably closed mind standard." Withrow involved a Wisconsin statute prohibiting various acts of professional misconduct by physicians. The act empowers the State Examining Board to warn and reprimand physicians, and thereafter to temporarily suspend licenses and institute civil action to revoke a license or initiate criminal action. Following its investigation, the Board notified a licensed physician that a closed investigation would be held to determine whether he had engaged in certain proscribed acts. At that juncture the doctor brought an action against the Board seeking injunctive relief against the hearing on the ground that in deciding to proceed against him the Board had prejudged his case and would therefore be disabled from hearing and deciding his case on the basis of evidence to be presented at the subsequently scheduled contested hearing. In determining the standard to be applied to the Board in such circumstances the Court remarked:

No specific foundation has been presented for suspecting that the Board had been prejudiced by its investigation or would be disabled from hearing and deciding on the basis of the evidence to be presented at the contested hearing. The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. Without a showing to the contrary, state administrators `are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941).

421 U.S. at 55, 95 S.Ct. at 1468 (Emphasis added). Withrow thus suggests a "fairness" standard; i. e., whether there is any ground for suspecting the Board of such unfairness that it could not hear and decide the case on the basis of the evidence to be presented at the contested hearing. If the 1948 decision in Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) is construed as establishing an irrevocably closed mind standard, the subsequent decision in Withrow must be recognized as modifying that rule.

In a similar vein, in Home Box Office v. FCC, 185 U.S.App.D.C. 142, 567 F.2d 9 (D.C. Cir. 1977), we concluded that the consideration by the FCC of off the record evidence in a rulemaking proceeding, through ex parte contacts, violated "fundamental notions of fairness".

The "unalterably closed mind" standard is also basically inconsistent with the holding that only fair decisionmakers may promulgate rules. Unfairness may exist in many instances where the Commissioner's mind is short of being "unalterably closed". The disqualification standard should be high, but not that high.

VIII. THE STANDARD FOR DISQUALIFICATION.

Because of the deficiencies pointed out above, I would reject the unalterably closed mind standard as imposing a practically impossible impediment in a great many cases to a showing of bias, even when the decisionmaker has in fact made up his mind in advance of the hearing. It is an unfair method of determining unfairness. Instead, I suggest that a superior standard can be gleaned from recent Supreme Court holdings, from a frank appraisal of the extent to which the Magnuson-Moss proceedings in this case require adjudicative determinations, and from considerations of fairness that must be said to be implicit in the structure of any statutory tribunal that is held out to the public as acting in accordance with the substantial evidence presented at public hearings.

The factual situation would have to be as extreme and as public as the Chairman's conduct here to prove the required bias. The standard for juror disqualification referred to in the concurring opinion, (text accompanying note 2) is not stated fully by asserting that the test is merely whether the juror feels he can lay aside his impression or opinion and render a verdict based on the evidence presented in court. The true test is whether he can lay aside his opinion before the case starts. Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961) found the jury improperly constituted where some jurors admitted "that it would take evidence to overcome their belief" in the defendant's guilt. From this it appears that the court was applying a threshold standard. See also Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), referred to in Murphy v. Florida, 421 U.S. 794, 802, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Beck,

each [of the persons . . . selected for the trial jury] indicated that he was not biased, that he had formed no opinion as to the petitioner's guilt which would require evidence to remove, and that he would enter the trial with an open mind disregarding anything he had read in the case."

369 U.S. at 557, 82 S.Ct. at 964. (Emphasis added). The last requirement is essential and should not be overlooked. The court in Beck clearly applied a threshold test that would have disqualified a juror if he "enter[ed] the trial . . . [with an] opinion . . . which would require evidence to remove." Id. This is the only fair and workable standard because otherwise jurors who had opinions they thought they could set aside after the evidence was in would convict a defendant if he did not put in any evidence. An identical threshold test was applied throughout the Teapot Dome trial of Albert B. Fall, Secretary of the Interior in the Harding administration. See the record in that case. Fall v. U.S., 60 App.D.C. 124, 49 F.2d 506, cert. denied, 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed. 1471 (1931).
The concurring opinion also incorrectly states (text accompanying note 3) that the "unalterably closed mind" standard is similar to that employed for the disqualification of judges. The applicable United States statute requires the disqualification of judges on much lesser grounds. It provides that:

"[a]ny justice, judge, magistrate . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" and " shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . . ." 28 U.S.C. § 455, 88 Stat. 1609, (emphasis added).

28 U.S.C. § 455, 88 Stat. 1609. (emphasis added).
If that standard were applicable, there are certainly reasonable grounds for questioning the Chairman's impartiality.

The Supreme Court's decisions in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) and Hortonville Joint School District No. 1 v. Hortonville Ed. Ass'n, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), each cited by the majority, hold that fairness is the ultimate measure of the qualification of an arbiter.

In Withrow, Justice White stated:

[I]f the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised. . . . [T]hat the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high. 421 U.S. at 58, 95 S.Ct. at 1470 (emphasis added).

In Hortonville, Chief Justice Burger quoted from United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) in pointing out certain circumstances in which disqualification would be justified:

Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not "capable of judging a particular controversy fairly on the basis of its own circumstances."

426 U.S. at 493, 96 S.Ct. at 2314 (Emphasis added).

That both of these cases involve consideration of disqualification of decisionmakers from adjudications does not deprive them of value in formulating a standard for disqualification from the Magnuson-Moss rulemaking that is involved here. As discussed supra, this Magnuson-Moss rulemaking contains many elements of adjudication — and in any event the majority admits that each of the decisionmakers must be fair. The fairness required stems not solely from constitutional due process considerations, but from the Congressional design of the statutory proceedings.

This design dictates concern not only for the FTC Chairman's duty to serve as policymaker as well as decisionmaker, a concern embraced by the majority, but also requires recognition of the rights of the public and those who appear before the Commission. It follows logically, then, that where the contestants of a proposed rule have the right to present evidence at a hearing on disputed issues of material fact, as in a Magnuson-Moss rulemaking proceeding, they necessarily have a correlative right to have their evidence heard by a decisionmaker who will give it fair and impartial consideration.

This is not to say that a Commissioner is necessarily to be disqualified if he (or she) has expressed opinions on policy matters that are later involved in Commission rulemaking. Rather, the moving party must show by a preponderance of the evidence that the decisionmaker could not participate fairly in the formulation of the rule because of substantial bias or prejudgment on any critical fact that must be resolved in such formulation. Such proof will be greatly aided where, as here, the decisionmaker's public statements repeatedly reveal fixed conclusions upon the primary issue that the agency proceeding contemplated would only be determined after the hearing. Such standard for disqualification accords with the underlying principles that were applied in Withrow and Hortonville, supra.

Chairman Pertschuk over a substantial period of time, on the very matter here presented, has made numerous appearances as a vigorous public advocate "committed" to curing the "evils" and "moral myopia" evident in the "exploitation" of children's advertising on TV. Even applying the majority's stiff test for disqualification, such conduct and expressions from his own mouth and pen, as near as words and conduct can, indicate an "irrevocably closed mind" and prejudgment of the ultimate fact involved — the "evil" of such advertising — and he should recuse himself; failing this the court should order his disqualification from participation in the proceedings. He has proved that he is not an impartial decisionmaker on this matter.

For the foregoing reasons I respectfully dissent against the result reached by the majority.