rejected.12 Thus, we are at the point which had not been reached in Schreiber, i.e., the data owners here have "request [ed] that [their trade secret data] . . . be received in confidence," and they are now "seek[ing] judicial protection [since their] . . . request[s] were denied.” Id. This is not a pre-enforcement action where there might be uncertainty as the FTC's position on whether and to what extent it will enforce its subpoenas, nor is this case like Wearly v. FTC, 616 F.2d 662 (3d Cir. 1980), where the FTC "has yet to take a position on which documents should be subject to what type of confidential treatment." At 667.

Wearly in fact supports the data owners here. Although the Third Circuit there found a pre-enforcement proceeding premature, it noted: In acting on [a] . . . petition [by an agency for an order enforcing a subpoena] the district court's role is not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure the integrity of the proceeding. "The system of judicial enforcement is designed to provide a meaningful day in court for one resisting an administrative subpoena." . . In the discharge of that duty, the court has the power to condition enforcement upon observance of safeguards to the respondent's valid interests.

Id. at 665 (citation omitted; footnote omitted). Cf. FTC v. JohnsManville Corp., 1979-2 Trade Cas. ¶ 62,830 at 78,792-93 (D.Colo.1979) (holding that Schreiber was not controlling in an FTC subpoena enforcement action because in Schreiber the FCC acted pursuant to a validly promulgated regulation while the FTC had not adopted such a rule regarding the confidentiality of subpoenaed material).

The FTC has itself provided the "10 day notice" assurance with respect to the release of these same documents to other-i. e., non-Congressional requestors, thereby preliminary validating the documents' eligibility for some protection from disclosure. Since the FTC cannot assure 10 days' pre-release notice for Congressional requests, it seems only reasonable that the FTC should do what it can to provide notice at the earliest possible time, i. e., when a request comes in. Requiring notice at the receipt of a request for access seems clearly necessary if the trade secret owners are to have any opportunity to plead their case at the FTC level about what is to be released under what conditions or assurances. Otherwise, by the time "reasonable" notice of the FTC's decision to release data to Congressional committees comes, the agency

13 The documents here were turned over to the FTC after the district court entered its order enforcing the subpoenas and this court denied the data owners' request for a stay pending appeal. But several months before the FTC brought this action the companies unsuccessfully moved the FTC to quash or impose protective provisions on the subpoenas, see, e.g., J.A. 177-97, and after this court's Exxon opinion in December 1978 the companies specifically offered, again without success, to comply with the subpoenas if, inter alia, the FTC would not release the data to Congress except pursuant to a formal request and if the FTC would give the data owners immediate notice of any Congressional request for access. See id. at 566a, 566b, 837 & 841.

As the FTC concedes, "[t]he documents withheld by the respondent companies were made available to Commission staff attorneys for inspection at the offices of [the data owners'] counsel. . ." Gov't Br. 3 n. 3. Although limited, the "focus" of that examination was:

[T]o determine whether respondents had made a prima facie showing that the information falls within the scope of "trade secrets and commercial or financial information obtained from a person or privileged or confidential" (5 U.S.C. 552), so as to warrant a Commission pledge of ten day notice protection.

Id. (emphasis in original).

position will have hardened and any dialogue between the agency and the owner about disclosure will be frozen or futile, or the documents may already have been released.

Since Schreiber, courts have continued to impose protective conditions on enforcement of agency subpoenas in appropriate circumstances. This court's recent Exxon opinion regarding DOE's subpoena enforcement powers reaffirms this authority: "Since the enforcement of a subpoena is an independent judicial action, and not merely an action ancillary to an earlier agency action, ICC v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894), a court is free to change the terms of an agency subpoena as it sees fit. Flotill Products, Inc. v. FTC, 278 F.2d 850, 852 (9th Cir. 1960)." Exxon, 628 F.2d 75 (emphasis supplied). That principle is by no means novel, as Judge Robinson recognized in SEC v. Arthur Young & Co., 584 F.2d 1018, 1032–33 (D.C. Cir.1978)):

Enforcement of administrative subpoenas has long been committed, not to administrative tribunals themselves, but instead to the courts. Power to enforce subpoenas . . . is cast in this traditional mold, without limitation on the court's discretion to set terms ensuring that the enforcement order does not become an engine of oppression. Stated somewhat differently, judicial authority to temper enforcement with fairness stems inexorably from congressional entrustment of subpoena enforcement to the judiciary.

(Citations omitted). The Arthur Young panel noted that the subpoena enforcement court, "in formulating protective conditions for administrative subpoenas, ... may resort analogously to techniques conventional to judicial subpoena[s]. . . ." Id. at 1033. Cf. Fed.R.Civ.P. 26 (c) (7) (permitting protective orders insuring "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way").13 Furthermore, in reviewing the imposition or rejection of such protections, the standard for review is whether the district court exercised sound discretion, taking Schreiber's mandate into consideration. FTC v. Lonning, 539 F.2d 202, 211 (D.C. Cir. 1976) ("[t]he decision as to the type and scope of any protective order rests within the sound discretion of the trial judge and must be determined on a case by case basis") (footnote omitted); accord, EEOC v. Packard Elec. Div., GM Corp., 569 F.2d 315, 317-18 (5th Cir. 1978); NLRB v. Friedman, 352 F.2d 545, 547 (3d Cir. 1965) (standard of review is "whether or not there was an abuse of [the district court's] . . . discretion"), quoting

13 The Second Circuit in United States v. GAF Corp., 596 F.2d 10 (2d Cir. 1979), appears to have reached the same result. That case dealt with the question of whether a civil investigative demand (CID) of the Department of Justice, similar to a subpoena, could be enforced against a party for documents it obtained from the target of a government antitrust investigation. GAF had obtained documents from Kodak, the target of the government investigation, in a private antitrust action subject to an order of the district court in the private action that GAF would not disclose the documents to anyone else. In upholding enforcement of the CID, the court of appeals relied upon the sound discretion of the district court in the government action to protect the parties" interests: "We uphold the power of the District Court... to superimpose upon any enforcement orders such protective orders as may be required to safeguard the interests of the parties in the particular circumstances." Id. at 76.758 (citation omitted). The Second Circuit concluded that "[a]n enforcement order in this case, accordingly, should specifically prohibit the government from any further disclosure without the consent of Kodak as the 'producer' of documents under [the CID statute]. . . . Id. at 76,757.

Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453 (6th Cir. 1941).

Schreiber of course requires that due deference must be given to the agency's own judgment of what kind of protective conditions are appropriate in view of its practices and any potential abuses.14 But the reality is that the agency seeking enforcement of its own subpoenas will almost inevitably wish them enforced with the least number of conditions or restrictions on what it may do with the material. Here the FTC has in effect agreed that the notice condition is reasonable and feasible, and asserted that it is actually provided in most cases. J.A. 42. The FTC simply did not want to be required to provide that notice in all cases by court order. Id. But post-Schreiber district courts have imposed conditions, not unlike those at issue here, that confidential subpoenaed material not be disclosed to competitors, FTC v. Continental Can Co., 267 F. Supp. 713 (S.D.N.Y. 1966), and that sensitive information in documents not be given over to any third party (except grand juries) without ten days' notice in order to let the parties apply to the court for relief, SEC v. Lockheed Aircraft Corp., 404 F. Supp. 651 (D.D.C. 1975).15

The district court here was similarly exercising its discretion; it is the propriety of its actions which we should be evaluating. I do not believe that the rationale of Schreiber compels so absolute a deference to the FTC's self-imposed disclosure provisions that a district judge retains no discretion to provide the owner of statutorily-protected material with reasonable assurances of immediate notice and verification when Congressional requests are made for access to that material. The district court here, furthermore, examined the practical bur

14 n Schreiber the Court noted, contrary to the situation here, that "neither the District Court nor the Court of Appeals inquired in to the validity of the Commission's exercise of its rulemaking authority. Instead the District Court devised procedures to be followed by the Commission on the basis of the court's conception of how the public and private interests could best be served." 381 U.S. at 291, 85 S.Ct. at 1468. The district court here conducted an inquiry into how the FTC proposed to insure confidentiality under § 6(f) and the Exxon mandate, and imposed nothing more than what the FTC effectively conceded was appropriate and already being done in large part.

15 FTC v. Texaco, Inc., supra, note 7, cited by the majority opinion is, not contrary to the result I would reach here. The subpoenaed parties there had not supplied the material at issue at the time of the court's opinion, and the FTC had not ruled on specific requests for confidential treatment. In contrast, here the FTC has all the documents it requested and it has refused the trade secret owners' pleas for an Exxon verification requirement and notice upon receipt of a Congressional request for access. Additionally, although the Texaco court eschewed adopting a general notice rule, it adopted a condition put forth by the FTC itself for settlement purposes and required the FTC to give ten days' notice even before releasing the subpoenaed material to Congress. The making of that offer by the FTC indicates at the very least that it is not universally opposed to any interference with its ability to respond immediately to Congressional requests for access to subpoenaed data. See note 7, supra. The Texaco court noted that "[s]uch a procedure would, of course, provide an opportunity for judicial review at some later date, if the [subpoenaed parties]. believe that a particular proposed disclosure is improper." Id. at 884-85. The district court's requirement here for notice upon the FTC's receipt of a Congressional request simply provides a similar opportunity for trade secret owners to seek judicial review of, ant perhaps to provide substantive input into, the FTC's decision to release data to Congress.

This court's opinion in Appeal of FTC Line of Business Report Litigation, 595 F.2d 685 (D.C. Cir.) (per curiam), cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978), in which Judge Bazelon (the author of the opinion for the court in Texaco) joined, directly cuts against the majority's invocation of Schreiber and Texaco for the proposition that we must concern ourselves only with whether the FTC has abused its discretion and not with whether the district court's imposition of protections was appropriate. The lower court in Line of Business had imposed a ten day notice requirement on the FTC's release of Corporate Patterns Reports (CPR) data, "(s)ince the CPR appellants' claims involve the potential release of their individual company data." Id. at 707. A ten day notice provision was necessary, the district court found, "[i]n order to protect the corporate parties from any precipitous action on the part of the FTC' before appellants could exhaust their administrative remedies." Id. As this court concluded when reviewing that decision: "Although we stated expressly in Texaco that such an order is not required as a general rule, we think the District Court's issuance of a protective order under the circumstances at bar was well within its discretion." Id. (emphasis supplied; footnote omitted).

dens that its two prescribed conditions would impose. It apparently concluded (and I agree) that the burden of both conditions on the FTC is small since the FTC currently channels all Congressional requests to the General Counsel's office for decision by the Commission itself. As to the notification condition, the following colloquy is instructive:

The COURT. Yes. So they [i.e., Congressional requests for access] all go to the General Counsel?

Mr. GRIMES [FTC counsel]. That's correct, and the Commission is the body that finally decides whether to grant that request from Congress. The Ashland Oil case

The COURT. If that's so, then there is no practical reason why the General Counsel can't advise these people at the time they get the request, is there? It's centralized, so therefore, you've got a mechanism.

Mr. GRIMES. I would agree, as soon as the

The COURT. He can just pick up the telephone and tell them as soon as he hears about it.

Mr. GRIMES. As soon as the General Counsel knows about it, we certainly would be aware of it in this case.

The COURT. Sure. They wouldn't have the questions of people away on vacation, or his secretary needs to come in.

J.A. 93 (elipses in original). As to the requirement of ascertaining that Congressional requests are authorized, that too, as the district court concluded, should not be unduly burdensome, again because of the FTC's practice of channeling such requests to the General Counsel's office. Compare id. at 47-48 with id. at 93.

IV. CONCLUSION

In sum, the district court's conditions appear to be entirely reasonable in view of the present practices of the FTC as disclosed at the hearing before the district court, and in view of this court's mandate to the FTC in our 1978 Exxon opinion. Nor is there any ground to believe that those conditions impose any undue burden on the FTC. It may be that as a result of its rulemaking proceeding, the FTC will propose different or better solutions to the problem of implementation of the "trade secret" provision, but for now it has none except its "as much as possible" notice promise. Nor do I find persuasive the argument that there is no need to impose the district court's minimal protections unless or until the FTC releases data pursuant to an unauthorized Congressional request or without as much prior notice as "possible." This proceeding involved many alleged trade secret documents, and if the owners have any enforceable rights with respect to these documents, protective conditions must precede, not follow, unauthorized releases.

Accordingly, I would affirm the district court here in all respects.

Senator Barry GOLDWATER et al., Paintiffs,

v.

James Earl CARTER et al., Defendants.

Civ. A. No. 78-2412.

United States District Court, District of Columbia.
Oct. 17, 1979.

Plaintiffs, members of Congress of United States, sought declaratory and injunctive relief against notices given by President to terminate the 1954 mutual defense treaty between United States of American and Taiwan. The District Court, Gasch J., held that: (1) plaintiff's suffered and were suffering injury in fact to their legislative right to be consulted and to vote on termination of treaty and thus had standing to seek judicial declaration with respect to constitutionality of President's unilateral termination of the treaty; (2) action brought by members of Congress for declaration with respect to constitutionality of President's unilateral termination of treaty did not present a nonjusticiable political question; and (3) termination of the treaty could not be constitutionally terminated by the President without the advice and consent of the United States Senate or the approval of both Houses of Congress.

Order accordingly.
Judgment reversed.

1. Declaratory Judgment

292

In suit for declaratory and injunctive relief brought on claim that mutual defense treaty between United States and Taiwan could not be terminated by President without consent of Congress, members of United States Senate could not assert standing grounded on allegation that President's action had impaired the effectiveness of their prior votes approving the 1954 treaty.

2. Constitutional Law 42.3(3)

Plaintiffs, members of United States Congress, suffered and were suffering injury in fact to their legislative right to be consulted and to vote on termination of 1954 mutual defense treaty with Taiwan and thus had standing to seek judicial declaration with respect to constitutionality of President's unilateral termination of the treaty. U.S.C.A.Const. art. 3 § 1 et seq.

3. Constitutional Law 68(1)

Action brought by members of Congress for declaration with respect to constitutionality of President's unilateral termination of 1954 mutual defense treaty with Taiwan did not present a nonjusticiable political question. U.S.C.A.Const. art. 2, §§ 2, 3; art. 3, § 1.

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