U.S. Supreme Court Chrysler Corp. v. Brown, 441
U.S. 281 (1979) Chrysler Corp. v.
Brown No. 77-922 Argued November 8,
1978 Decided April 18,
1979 441
U.S. 281 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD
CIRCUIT Syllabus Petitioner, as a party to numerous Government contracts, was
required to comply with Executive Orders 11246 and 11375, which
charge the Secretary of Labor with ensuring that corporations that
benefit from Government contracts provide equal employment
opportunity regardless of race or sex. Regulations promulgated by
the Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP) require Government contractors to furnish reports
about their affirmative action programs and the general composition
of their workforces, and provide that, notwithstanding exemption
from mandatory disclosure under the Freedom of Information Act
(FOIA), records obtained pursuant to Executive Order 11246 shall be
made available for inspection if it is determined that the
requested inspection furthers the public interest and does not
impede agency functions, except in the case of records disclosure
of which is prohibited by law. After the Department of Defense's
Defense Logistics Agency (DLA), the designated compliance agency
responsible for monitoring petitioner's employment practices,
informed petitioner that third parties had made an FOIA request for
disclosure of certain materials that had been furnished to the DLA
by petitioner, petitioner objected to release of the materials. The
DLA determined that the materials were subject to disclosure under
the FOIA and OFCCP disclosure rules, and petitioner then filed a
complaint in the Federal District Court seeking to enjoin release
of the documents. Petitioner contended, inter alia, that
disclosure was barred by the FOIA and was inconsistent with the
Trade Secrets Act, 18 U.S.C. § 1905, which imposes criminal
sanctions on Government employees who disclose or make known, in
any manner or to any extent "not authorized by law," certain
classes of information submitted to a Government agency, including
trade secrets and confidential statistical data. Finding
jurisdiction to subject the disclosure decision to review under the
Administrative Procedure Act (APA), the District Court held that
certain of the requested information fell within Exemption 4 of the
FOIA, relating to trade secrets and commercial or financial
information; that whether the requested information may or must be
withheld thus Page 441 U. S. 282 depended on applicable agency regulations; and that, here, a
regulation (29 CFR § 70.21(a) (1977)) which states that no officer
or employee of the Department of Labor is to violate 18 U.S.C. §
1905, and which proscribes specified disclosures if "not authorized
by law," required that the information be withheld. Both sides
appealed, and the Court of Appeals vacated the District Court's
judgment. While agreeing with the District Court that the FOIA does
not compel withholding of information that falls within its
exemptions, and that analysis must proceed under the APA, the Court
of Appeals reached a different conclusion as to the interpretation
of 29 CFR § 70.21(a). In the Court of Appeals' view, disclosures
made pursuant to OFCCP disclosure regulations are "authorized by
law" by virtue of those regulations. Held: 1. The FOIA is exclusively a disclosure statute, and affords
petitioner no private right of action to enjoin agency disclosure.
The language, logic, and history of the FOIA show that its
provisions exempting specified material from disclosure were only
meant to permit the agency to withhold certain information, and
were not meant to mandate nondisclosure. Congressional concern was
with the agency's need or preference for confidentiality; the FOIA,
by itself, protects the interest in confidentiality of private
entities submitting information only to the extent that this
interest is endorsed by the agency collecting the information. Pp. 441 U. S.
290 -294.

															2. The type of disclosure threatened in this case is not
"authorized by law" within the meaning of the Trade Secrets Act on
the theory that the OFCCP regulations relied on by DLA were the
source of that authorization. Pp. 441 U. S.
295 -316.

															(a) The Act addresses formal agency action as well as acts of
individual Government employees, and there is nothing in its
legislative history to show that Congress intended the phrase
"authorized by law" to have a special, limited meaning different
from the traditional understanding that properly promulgated,
substantive agency regulations have the "force and effect of law."
In order for a regulation to have the "force and effect of law," it
must be a "substantive" or "legislative-type" rule affecting
individual rights and obligations (as do the regulations in the
case at bar), and it must be the product of a congressional grant
of legislative authority, promulgated in conformity with any
procedural requirements imposed by Congress. Pp. 441 U. S.
295 -303.

															(b) The disclosure regulations at issue in this case cannot be
based on § 201 of Executive Order 11246, as amended, and a
regulation which permits units in the Department of Labor to
promulgate supplemental Page 441 U. S. 283 disclosure regulations consistent with the FOIA. Since materials
that are exempt from disclosure under the FOIA are outside the
ambit of that Act, the Government cannot rely on the FOIA as
congressional authorization for disclosure regulations that permit
the release of information within the Act's exemptions. In order
for regulations adopted under § 201 of Executive Order 11246 --
which speaks in terms of rules and regulations "necessary and
appropriate" to achieve the Executive Order's purposes of ending
discrimination by the Federal Government and those who deal with it
-- to have the "force and effect of law," there must be a nexus
between the regulations and some delegation of the requisite
legislative authority by Congress. When Congress enacted statutes
which arguably authorized the Executive Order (the Federal Property
and Administration Services Act of 1949, Titles VI and VII of the
Civil Rights Act of 1964, and the Equal Employment Opportunity Act
of 1972), it was not concerned with public disclosure of trade
secrets or confidential business information, and it is not
possible to find in these statutes a delegation of the disclosure
authority asserted by the Government here. Also, one cannot readily
pull from the logic and purposes of the Executive Order any concern
with the public's access to information in Government files or the
importance of protecting trade secrets or confidential business
statistics. Pp. 441 U. S.
303 -308.

															(c) Legislative authority for the OFCCP disclosure regulations
cannot be found in 5 U.S.C. § 301, which authorizes heads of
Government departments to prescribe regulations to govern internal
departmental affairs and the custody and use of its records, and
which provides that it does not authorize withholding information
from the public or limiting the availability of records to the
public. Section 301 is a "housekeeping statute," authorizing rules
of agency organization, procedure, or practice as opposed to
"substantive rules." There is nothing in the legislative history to
indicate that § 301 is a substantive grant of legislative power to
promulgate rules authorizing the release of trade secrets or
confidential business information. Thus, § 301 does not authorize
regulations limiting the scope of the Trade Secrets Act. Pp.
308-312.

															(d) There is also a procedural defect in the OFCCP disclosure
regulations that precludes courts from affording them the force and
effect of law, since they were promulgated as "interpretative
rules" without complying with the APA's requirement that interested
persons be given general notice of an agency's proposed rulemaking
and an opportunity to comment before a "substantive rule" is
promulgated. An "interpretative regulation" cannot be the
"authoriz[ation] by law" required by the Trade Secrets Act. Pp. 441 U. S.
312 -316. Page 441 U. S. 284 3. However, the Trade Secrets Act does not afford a private
right of action to enjoin disclosure in violation of the statute.
Where this Court has implied a private right of action under a
criminal statute, "there was at least a statutory basis for
inferring that a civil cause of action of some sort lay in favor of
someone." Cort v. Ash, 422 U. S. 66 , 422 U. S. 79 .
Nothing in the Trade Secrets Act prompts such an inference; nor is
there any indication of legislative intent to create a private
right of action. Most importantly, a private right of action under
the Act is not necessary to make effective the congressional
purpose, since review of DLA's decision to disclose petitioner's
employment data is available under the APA. Pp. 441 U. S.
316 -317.

															4. Since the Trade Secrets Act and any "authoriz[ation] by law"
contemplated by that Act place substantive limits on agency action,
DLA's decision to disclose petitioner's reports is reviewable
agency action, and petitioner is a person "adversely affected or
aggrieved" within the meaning of the APA's provision affording the
right of judicial review of agency action to such a person. Because
the Court of Appeals did not reach the issue whether disclosure of
petitioner's documents was barred by the Trade Secrets Act, the
case is remanded in order that the Court of Appeals may consider
whether the contemplated disclosures would violate the Act. Pp. 441 U. S.
317 -319.

															565 F.2d 1172, vacated and remanded.

															REHNQUIST, J., delivered the opinion for a unanimous Court.
MARSHALL, J., filed a concurring opinion, post, p. 441 U. S.
319 . Page 441 U. S. 285 MR. JUSTICE REHNQUIST delivered the opinion of the Court.

															The expanding range of federal regulatory activity and growth in
the Government sector of the economy have increased federal
agencies' demands for information about the activities of private
individuals and corporations. These developments have paralleled a
related concern about secrecy in Government and abuse of power. The
Freedom of Information Act (hereinafter FOIA) was a response to
this concern, but it has also had a largely unforeseen tendency to
exacerbate the uneasiness of those who comply with governmental
demands for information. For, under the FOIA, third parties have
been able to obtain Government files containing information
submitted by corporations and individuals who thought that the
information would be held in confidence.

															This case belongs to a class that has been popularly denominated
"reverse-FOIA" suits. The Chrysler Corp. (hereinafter Chrysler)
seeks to enjoin agency disclosure on the grounds that it is
inconsistent with the FOIA and 18 U.S.C. § 1905, a criminal statute
with origins in the 19th century that proscribes disclosure of
certain classes of business and personal information. We agree with
the Court of Appeals for the Third Circuit that the FOIA is purely
a disclosure statute. and affords Chrysler no private right of
action to enjoin agency disclosure. But we cannot agree with that
court's conclusion that this disclosure is "authorized by law"
within the meaning of § 1905. Therefore, we vacate the Court of
Appeals' judgment and remand so that it can consider Page 441 U. S. 286 whether the documents at issue in this case fall within the
terms of § 1905. I As a party to numerous Government contracts, Chrysler is
required to comply with Executive Orders 1146 and 11375, which
charge the Secretary of Labor with ensuring that corporations that
benefit from Government contracts provide equal employment
opportunity regardless of race or sex. [ Footnote 1 ] The United States Department of Labor's Office
of Federal Contract Compliance Programs (OFCCP) has promulgated
regulations which require Government contractors to furnish reports
and other information about their affirmative action programs and
the general composition of their workforces. [ Footnote 2 ]

															The Defense Logistics Agency (DLA) (formerly the Defense Supply
Agency) of the Department of Defense is the designated compliance
agency responsible for monitoring Chrysler's employment practices.
[ Footnote 3 ] OFCCP regulations
require that Chrysler make available to this agency written
affirmative action programs (AAP's) and annually submit Employer
Information Reports, known as EEO-1 Reports. The agency may also
conduct "compliance reviews" and "complaint investigations," which
culminate in Compliance Review Reports (CRR's) and Complaint
Investigation Reports (CIR's), respectively. [ Footnote 4 ] Page 441 U. S. 287 Regulations promulgated by the Secretary of Labor provide for
public disclosure of information from records of the OFCCP and its
compliance agencies. Those regulations state that, notwithstanding
exemption from mandatory disclosure under the FOIA, 5 U.S.C. §
552,

															"records obtained or generated pursuant to Executive Order 11246
(as amended) . . . shall be made available for inspection and
copying . . . if it is determined that the requested inspection or
copying furthers the public interest and does not impede any of the
functions of the OFCC[P] or the Compliance Agencies except in the
case of records disclosure of which is prohibited by law. [ Footnote 5 ]"

															It is the voluntary disclosure contemplated by this regulation,
over and above that mandated by the FOIA, which is the gravamen of
Chrysler's complaint in this case.

															This controversy began on May 14, 1975, when the DLA informed
Chrysler that third parties had made an FOIA request for disclosure
of the 1974 AAP for Chrysler's Newark, Del., assembly plant and an
October, 1974, CIR for the same facility. Nine days later, Chrysler
objected to release of the requested information, relying on
OFCCP's disclosure regulations and on exemptions to the FOIA.
Chrysler also requested a copy of the CIR, since it had never seen
it. DLA responded the following week that it had determined that
the requested material was subject to disclosure under the FOIA and
the OFCCP disclosure rules, and that both documents would be
released five days later.

															On the day the documents were to be released, Chrysler filed a
complaint in the United States District Court for Delaware Page 441 U. S. 288 seeking to enjoin release of the Newark documents. The District
Court granted a temporary restraining order barring disclosure of
the Newark documents and requiring that DLA give five days' notice
to Chrysler before releasing any similar documents. Pursuant to
this order, Chrysler was informed on July 1, 1975, that DLA had
received a similar request for information about Chrysler's
Hamtramek, Mich., plant. Chrysler amended its complaint and
obtained a restraining order with regard to the Hamtramek
disclosure as well.

															Chrysler made three arguments in support of its prayer for an
injunction: that disclosure was barred by the FOIA; that it was
inconsistent with 18 U.S.C. § 1905, 42 U.S.C. § 2000e-8(e), and 44
U.S.C. § 350, which, for ease of reference, will be referred to as
the "confidentiality statutes"; and finally that disclosure was an
abuse of agency discretion insofar as it conflicted with OFCCP
rules. The District Court held that it had jurisdiction under 28
U.S.C. § 1331 to subject the disclosure decision to review under
the Administrative Procedure Act (APA). 5 U.S.C. §§ 701-706. It
conducted a trial de novo on all of Chrysler's claims;
both sides presented extensive expert testimony during August,
1975.

															On April 20, 1976, the District Court issued its opinion. It
held that certain of the requested information, the "manning"
tables, fell within Exemption 4 of the FOIA. [ Footnote 6 ] The District Court reasoned from this
holding that the tables may or must be withheld, depending on
applicable agency regulations, and that, here, a governing
regulation required that the information be withheld. Pursuant to 5
U.S.C. § 301, the enabling statute which gives federal department
heads control over department records, the Secretary of Labor has
promulgated a regulation, 29 CFR § 70.21(a) (1978), stating that no
officer or employee of the Department is to violate 18 U.S.C. §
1905. That section imposes criminal sanctions on Government
employees Page 441 U. S. 289 who make unauthorized disclosure of certain classes of
information submitted to a Government agency, including trade
secrets and confidential statistical data. In essence, the District
Court read § 1905 as not merely a prohibition of unauthorized
disclosure of sensitive information by Government employees, but as
a restriction on official agency actions taken pursuant to
promulgated regulations.

															Both sides appealed, and the Court of Appeals for the Third
Circuit vacated the District Court's judgment. Chrysler Corp.
v. Schlesinger, 565 F.2d 1172 (1977). It agreed with the
District Court that the FOIA does not compel withholding of
information that falls within its nine exemptions. It also, like
the District Court, rejected Chrysler's reliance on the
confidentiality statutes, either because there was no implied
private right of action to proceed under the statute or because the
statute, by its terms, was not applicable to the information at
issue in this case. It agreed with the District Court that analysis
must proceed under the APA. But it disagreed with that court's
interpretation of 29 CFR § 70.21(a). By the terms of that
regulation, the specified disclosures are only proscribed if "not
authorized by law," the standard of 18 U.S.C. § 1905. In the Court
of Appeals' view, disclosures made pursuant to OFCCP disclosure
regulations are "authorized by law" by virtue of those regulations.
Therefore, it held that 29 CFR § 70.21(a) was inapplicable.

															The Court of Appeals also disagreed with the District Court's
view of the scope of review under the APA. It held that the
District Court erred in conducting a de novo review;
review should have been limited to the agency record. However, the
Court of Appeals found that record inadequate in this case, and
directed that the District Court remand to the agency for
supplementation. Because of a conflict in the Circuits [ Footnote 7 ] and the general importance
of these "reverse-FOIA" Page 441 U. S. 290 cases, we granted certiorari, 435 U.S. 914, and now vacate the
judgment of the Third Circuit and remand for further
proceedings. II We have decided a number of FOIA cases in the last few years.
[ Footnote 8 ] Although we have
not had to face squarely the question whether the FOIA ex
proprio vigore forbids governmental agencies from disclosing
certain classes of information to the public, we have, in the
course of at least one opinion, intimated an answer. [ Footnote 9 ] We have, moreover, consistently
recognized that the basic objective of the Act is disclosure.
[ Footnote 10 ] Page 441 U. S. 291 In contending that the FOIA bars disclosure of the requested
equal employment opportunity information, Chrysler relies on the
Act's nine exemptions and argues that they require an agency to
withhold exempted material. In this case, it relies specifically on
Exemption 4:

															"(b) [FOIA] does not apply to matters that are -- "

															" * * * *" "(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential. . . ."

															5 U.S.C. § 552(b)(4). Chrysler contends that the nine exemptions
in general, and Exemption 4 in particular, reflect a sensitivity to
the privacy interests of private individuals and nongovernmental
entities. That contention may be conceded without inexorably
requiring the conclusion that the exemptions impose affirmative
duties on an agency to withhold information sought. [ Footnote 11 ] In fact, that conclusion is
not supported by the language, logic, or history of the Act.

															The organization of the Act is straightforward. Subsection Page 441 U. S. 292 (a), 5 U.S.C. § 552(a), places a general obligation on the
agency to make information available to the public and sets out
specific modes of disclosure for certain classes of information.
Subsection(b), 5 U.S.C. § 552(b), which lists the exemptions,
simply states that the specified material is not subject to the
disclosure obligations set out in subsection (a). By its terms,
subsection (b) demarcates the agency's obligation to disclose; it
does not foreclose disclosure.

															That the FOIA is exclusively a disclosure statute is, perhaps,
demonstrated most convincingly by examining its provision for
judicial relief. Subsection(a)(4)(b) gives federal district
courts

															"jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records
improperly withheld from the complainant."

															5 U.S.C. § 552(a)(4)(b). That provision does not give the
authority to bar disclosure, and thus fortifies our belief that
Chrysler, and courts which have shared its view, have incorrectly
interpreted the exemption provisions of the FOIA. The Act is an
attempt to meet the demand for open government while preserving
workable confidentiality in governmental decisionmaking. [ Footnote 12 ] Congress appreciated
that, with the expanding sphere of governmental regulation and
enterprise, much of the information within Government files has
been submitted by private entities seeking Government contracts or
responding to unconditional reporting obligations imposed by law.
There was sentiment that Government agencies should have the
latitude, in certain circumstances, to afford the confidentiality
desired by these submitters. [ Footnote 13 ] But the congressional concern Page 441 U. S. 293 was with the agency's need or preference for
confidentiality; the FOIA, by itself, protects the submitters'
interest in confidentiality only to the extent that this interest
is endorsed by the agency collecting the information.

															Enlarged access to governmental information undoubtedly cuts
against the privacy concerns of nongovernmental entities, and, as a
matter of policy, some balancing and accommodation may well be
desirable. We simply hold here that Congress did not design the
FOIA exemptions to be mandatory bars to disclosure. [ Footnote 14 ]

															This conclusion is further supported by the legislative history.
The FOIA was enacted out of dissatisfaction with § 3 of the APA,
which had not resulted in as much disclosure by the agencies as
Congress later thought desirable. [ Footnote 15 ] Statements in both the Senate and House
Reports on the effect of the exemptions support the interpretation
that the exemptions Page 441 U. S. 294 were only meant to permit the agency to withhold certain
information, and were not meant to mandate nondisclosure. For
example, the House Report states:

															"[The FOIA] sets up workable standards for the categories of
records which may be exempt from public disclosure . . .
."

															". . . There may be legitimate reasons for nondisclosure and
[the FOIA] is designed to permit nondisclosure in such
cases."

															"[The FOIA] lists in a later subsection the specific categories
of information which may be exempted from disclosure.
[ Footnote 16 ]"

															We therefore conclude that Congress did not limit an agency's
discretion to disclose information when it enacted the FOIA. It
necessarily follows that the Act does not afford Chrysler any right
to enjoin agency disclosure. III Chrysler contends, however, that, even if its suit for
injunctive relief cannot be based on the FOIA, such an action can
be premised on the Trade Secrets Act, 18 U.S.C. § 1905. The Act
provides:

															"Whoever, being an officer or employee of the United States or
of any department or agency thereof, publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information coming to him in the course of
his employment or official duties or by reason of any examination
or investigation made by, or return, report or record made to or
filed with, such Page 441 U. S. 295 department or agency or officer or employee thereof, which
information concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, or to the identity,
confidential statistical data, amount or source of any income,
profits, losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any income return or copy
thereof or any book containing any abstract or particulars thereof
to be seen or examined by any person except as provided by law;
shall be fined not more than $1,000, or imprisoned not more than
one year, or both; and shall be removed from office or
employment."

															There are necessarily two parts to Chrysler's argument: that §
1905 is applicable to the type of disclosure threatened in this
case, and that it affords Chrysler a private right of action to
obtain injunctive relief. A The Court of Appeals held that § 1905 was not applicable to the
agency disclosure at issue here, because such disclosure was
"authorized by law" within the meaning of the Act. The court found
the source of that authorization to be the OFCCP regulations that
DLA relied on in deciding to disclose information on the Hamtramek
and Newark plants. [ Footnote
17 ] Chrysler contends here that these agency regulations are
not "law" within the meaning of § 1905.

															It has been established in a variety of contexts that properly
promulgated, substantive agency regulations have the "force and
effect of law." [ Footnote
18 ] This doctrine is so well established that agency
regulations implementing federal statutes have been Page 441 U. S. 296 held to preempt state law under the Supremacy Clause. [ Footnote 19 ] It would therefore take
a clear showing of contrary legislative intent before the phrase
"authorized by law" in § 1905 could be held to have a narrower
ambit than the traditional understanding.

															The origins of the Trade Secrets Act can be traced to Rev.Stat.
§ 3167, an Act which barred unauthorized disclosure of specified
business information by Government revenue officers. There is very
little legislative history concerning the original bill, which was
passed in 1864. [ Footnote
20 ] It was reenacted numerous times, with some modification,
and remained part of the revenue laws until 1948. [ Footnote 21 ] Congressional statements made
at the time of these reenactments indicate that Congress was
primarily concerned with unauthorized disclosure of business
information by feckless or corrupt revenue agents [ Footnote 22 ] for Page 441 U. S. 297 in the early dys of the Bureau of Internal Revenue, it was the
field agents who had substantial contact with confidential
financial information. [ Footnote
23 ]

															In 1948, Rev.Stat. § 3167 was consolidated with two other
statutes -- involving the Tariff Commission and the Department of
Commerce -- to form the Trade Secrets Act. [ Footnote 24 ] The statute governing the Tariff
Commission was very similar to Rev.Stat. § 3167, and it explicitly
bound members of the Commission as well as Commission employees.
[ Footnote 25 ] The
Commerce Page 441 U. S. 298 Department statute embodied some differences in form. It was a
mandate addressed to the Bureau of Foreign and Domestic Commerce
and to its Director, but there was no reference to Bureau
employees, and it contained no criminal sanctions. [ Footnote 26 ] Unlike the other statutes, it
also had no exception for disclosures "authorized by law." In its
effort to "consolidat[e]" the three statutes, Congress enacted §
1905 and essentially borrowed the form of Rev.Stat. § 3167 and the
Tariff Commission statute. [ Footnote 27 ] We find nothing in the legislative history
of § 1905 and its predecessors which lends support to Chrysler's
contention that Congress intended the phrase "authorized by law,"
as used in § 1905, to have a special, limited meaning.

															Nor do we find anything in the legislative history to support
the respondents' suggestion that § 1905 does not address formal
agency action -- i.e., that it is essentially an
"anti-leak" statute that does not bind the heads of governmental
departments or agencies. That would require an expansive and
unprecedented holding that any agency action directed or approved
by an agency head is "authorized by law," regardless Page 441 U. S. 299 of the statutory authority for that action. As Attorney General
Brownell recognized not long after § 1905 was enacted, such a
reading is difficult to reconcile with Congress' intent to
consolidate the Tariff Commission and Commerce Department statutes,
both of which explicitly addressed ranking officials, with
Rev.Stat. § 3167. [ Footnote
28 ] It is also inconsistent with a settled understanding --
previously shared by the Department of Justice -- that has been
continually articulated and relied upon in Congress during the
legislative efforts in the last three decades to increase public
access to Government information. [ Footnote 29 ] Although the existence of this
understanding Page 441 U. S. 300 is not by any means dispositive, it does shed some light on the
intent of the enacting Congress. See Red Lion Broadcasting Co.
v. FCC, 395 U. S. 367 , 395 U. S.
380 -381 (1969); FHA Page 441 U. S. 301 v. The Darlington, Inc., 35 U.S. 84, 358 U. S. 90 (1958). In sum, we conclude that § 1305 does address formal agency
action, and that the appropriate inquiry is whether OFCCP's
regulations provide the "authorization by law" required by the
statute.

															In order for a regulation to have the "force and effect of law,"
it must have certain substantive characteristics and be the product
of certain procedural requisites. The central distinction among
agency regulations found in the APA is that between "substantive
rules," on the one hand, and "interpretive rules, general
statements of policy, or rules of agency organization, procedure,
or practice," on the other. [ Footnote 30 ] A "substantive Page 441 U. S. 302 rule" is not defined in the APA, and other authoritative sources
essentially offer definitions by negative inference. [ Footnote 31 ] But in Morton v.
Ruiz, 415 U. S. 199 (1974), we noted a characteristic inherent in the concept of a
"substantive rule." We described a substantive rule -- or a
"legislative-type rule," id. at 415 U. S. 236 -- as one "affecting individual rights and obligations." Id. at 415 U. S. 232 .
This characteristic is an important touchstone for distinguishing
those rules that may be "binding" or have the "force of law." Id. at 415 U. S. 235 , 415 U. S.
236 .

															That an agency regulation is "substantive," however, does not,
by itself, give it the "force and effect of law." The legislative
power of the United States is vested in the Congress, and the
exercise of quasi-legislative authority by governmental departments
and agencies must be rooted in a grant of such power by the
Congress and subject to limitations which that body imposes. As
this Court noted in Batterton v. Francis, 432 U.
S. 416 , 432 U. S. 425 n. 9 (1977):

															"Legislative, or substantive, regulations are 'issued by an
agency pursuant to statutory authority and . . . implement Page 441 U. S. 303 the statute, as, for example, the proxy rules issued by the
Securities and Exchange Commission. . . . Such rules have the force
and effect of law.' [ Footnote
32 ]"

															Likewise, the promulgation of these regulations must conform
with any procedural requirements imposed by Congress. Morton v.
Ruiz, supra, at 415 U. S. 232 .
For agency discretion is limited not only by substantive, statutory
grants of authority, but also by the procedural requirements which
"assure fairness and mature consideration of rules of general
application." NLRB v. Wyman-Gordon Co., 394 U.
S. 759 , 394 U. S. 764 (1969). The pertinent procedural limitations in this case are those
found in the APA.

															The regulations relied on by the respondents in this case as
providing "authoriz[ation] by law" within the meaning of § 1905
certainly affect individual rights and obligations; they govern the
public's right to information in records obtained under Executive
Order 11246 and the confidentiality rights of those who submit
information to OFCCP and its compliance agencies. It is a much
closer question, however, whether they are the product of a
congressional grant of legislative authority.

															In his published memorandum setting forth the disclosure
regulations at issue in this case, the Secretary of Labor states
that the authority upon which he relies in promulgating the
regulations are § 201 of Executive Order 11246, as amended, and 29
CFR § 70.71 (1978), which permits units in the Department of Labor
to promulgate supplemental disclosure regulations consistent with
29 CFR pt. 70 and the FOIA. 38 Fed.Reg. 3192-3194 (1973). Since
materials that are exempt from disclosure under the FOIA are, by
virtue of 441 U. S. outside the ambit of that Act, the Government cannot rely on the
FOIA as congressional authorization for Page 441 U. S. 304 disclosure regulations that permit the release of information
within the Act's nine exemptions.

															Section 201 of Executive Order 11246 directs the Secretary of
Labor to "adopt such rules and regulations and issue such orders as
he deems necessary and appropriate to achieve the purposes
thereof." But in order for such regulations to have the "force and
effect of law," it is necessary to establish a nexus between the
regulations and some delegation of the requisite legislative
authority by Congress. The origins of the congressional authority
for Executive Order 11246 are somewhat obscure, and have been
roundly debated by commentators and courts. [ Footnote 33 ] The Order itself, as amended,
establishes a program to eliminate employment discrimination by the
Federal Government and by those who benefit from Government
contracts. For purposes of this case, it is not necessary to decide
whether Executive Order 11246, as amended, is authorized by the
Federal Property and Administrative Services Act of 1949, [ Footnote 34 ] Titles VI Page 441 U. S. 305 and VII of the Civil Rights Act of 1964, [ Footnote 35 ] the Equal Employment Opportunity
Act of 1972, [ Footnote 36 ]
or some more general notion that the Executive can impose
reasonable contractual requirements Page 441 U. S. 306 in the exercise of its procurement authority. [ Footnote 37 ] The pertinent inquiry is
whether, under any of the arguable statutory grants of
authority, the OFCCP disclosure regulations relied on by the
respondents are reasonably within the contemplation of that grant
of authority. We think that it is clear that, when it enacted these
statutes, Congress was not concerned with public disclosure of
trade secrets or confidential business information, and, unless we
were to hold that any federal statute that implies some authority
to collect information must grant legislative authority to
disclose that information to the public, it is simply not possible
to find in these statutes a delegation of the disclosure authority
asserted by the respondents here. [ Footnote 38 ] Page 441 U. S. 307 The relationship between any grant of legislative authority and
the disclosure regulations becomes more remote when one examines §
201 of the Executive Order. It speaks in terms of rules and
regulations "necessary and appropriate" to achieve the purposes of
the Executive Order. Those purposes are an end to discrimination in
employment by the Federal Government and those who deal with the
Federal Government. One cannot readily pull from the logic and
purposes of the Executive Order any concern with the public's
access to information in Government files or the importance of
protecting trade secrets or confidential business statistics.

															The "purpose and scope" section of the disclosure regulations
indicates two underlying rationales: OFCCP's general policy "to
disclose information to the public," and its policy "to cooperate
with other public agencies as well as private parties seeking to
eliminate discrimination in employment." 41 CFR § 640.1 (1978). The
respondents argue that

															"[t]he purpose of the Executive Order is to combat
discrimination in employment, and a disclosure policy designed to
further this purpose is consistent with the Executive Order and an
appropriate subject for regulation under its aegis."

															Brief for Respondents 4. Were a grant of legislative authority
as a basis for Executive Order 11246 more clearly identifiable, we
might agree with the respondents that this "compatibility" gives
the disclosure regulations the necessary legislative force. But the
thread between these regulations and any grant of Page 441 U. S. 308 authority by the Congress is so strained that it would do
violence to established principles of separation of powers to
denominate these particular regulations "legislative" and credit
them with the "binding effect of law."

															This is not to say that any grant of legislative authority to a
federal agency by Congress must be specific before regulations
promulgated pursuant to it can be binding on courts in a manner
akin to statutes. What is important is that the reviewing court
reasonably be able to conclude that the grant of authority
contemplates the regulations issued. Possibly the best illustration
remains Mr. Justice Frankfurter's opinion for the Court in National Broadcasting Co. v. United States, 319 U.
S. 190 (1943). There the Court rejected the argument
that the Communications Act of 1934 did not give the Federal
Communications Commission authority to issue regulations governing
chain broadcasting beyond the specification of technical
engineering requirements. Before reaching that conclusion, however,
the Court probed the language and logic of the Communications Act
and its legislative history. Only after this careful parsing of
authority did the Court find that the regulations had the force of
law and were binding on the courts unless they were arbitrary or
not promulgated pursuant to prescribed procedures.

															"Our duty is at an end when we find that the action of the
Commission was based upon findings supported by evidence, and was
made pursuant to authority granted by Congress. It is not for us to
say that the 'public interest' will be furthered or retarded by the
Chain Broadcasting Regulations. The responsibility belongs to the
Congress for the grant of valid legislative authority and to the
Commission for its exercise." Id. at 319 U. S.
224 .

															The respondents argue, however, that, even if these regulations
do not have the force of law by virtue of Executive Order 11246, an
explicit grant of legislative authority for such Page 441 U. S. 309 regulations can be found in 5 U.S.C. § 301, commonly referred to
as the "housekeeping statute." [ Footnote 39 ] It provides:

															"The head of an Executive department or military department may
prescribe regulations for the government of his department, the
conduct of its employees, the distribution and performance of its
business, and the custody, use, and preservation of its records,
papers, and property. This section does not authorize withholding
information from the public or limiting the availability of records
to the public."

															The antecedents of § 301 go back to the beginning of the
Republic, when statutes were enacted to give heads of early
Government departments authority to govern internal departmental
affairs. Those laws were consolidated into one statute in 1874. and
the current version of the statute was enacted in 1958.

															Given this long and relatively uncontroversial history, and the
terms of the statute itself, it seems to be simply a grant of
authority to the agency to regulate its own affairs. What is clear
from the legislative history of the 1958 amendment to § 301 is that
this section was not intended to provide authority for limiting the
scope of § 1905. [ Footnote
40 ] Page 441 U. S. 310 The 1958 amendment to § 301 was the product of congressional
concern that agencies were invoking § 301 as a source of authority
to withhold information from the public. Congressman Moss sponsored
an amendment that added the last sentence to § 301, which
specifically states that this section "does not authorize
withholding information from the public." The Senate Report
accompanying the amendment stated:

															"Nothing in the legislative history of [§ 301] shows that
Congress intended this statute to be a grant of authority to the
heads of the executive departments to withhold information from the
public or to limit the availability of records to the public."

															S.Rep. No. 1621, 85th Cong., 2d Sess., 2 (1958). The logical
corollary to this observation is that there is nothing in the
legislative history of § 301 to indicate it is a substantive grant
of legislative power to promulgate rules authorizing the release of trade secrets or confidential business
information. It is indeed a "housekeeping statute," authorizing
what the APA terms "rules of agency organization, procedure or
practice," as opposed to "substantive rules." [ Footnote 41 ] Page 441 U. S. 311 This would suggest that regulations pursuant to § 301 could not
provide the "authoriz[ation] by law" required by § 1905. But there
is more specific support for this position. During the debates on
the 1958 amendment, Congressman Moss assured the House that the
amendment would "not affect the confidential status of information
given to the Government and carefully detailed in title 18, United
States Code, section 1905." 104 Cong.Rec. 6550 (1958).

															The respondents argue that this last statement is of little
significance, because it is only made with reference to the
amendment. But that robs Congressman Moss' statement of any
substantive import. If Congressman Moss thought that records within
the terms of § 1905 could be released on the authority of a § 301
regulation, why was he (and presumably the House) concerned with
whether the amendment affected § 1905? Under the respondents'
interpretation, records released pursuant to § 301 are outside §
1905 by virtue of the first sentence of § 301.

															The remarks of a single legislator, even the sponsor, are not
controlling in analyzing legislative history. Congressman Moss'
statement must be considered with the Reports of both Houses and
the statements of other Congressmen, all of which refute the
respondents' interpretation of the relationship between § 301 and §
1905. [ Footnote 42 ] Of
greatest significance, however, Page 441 U. S. 312 is the "housekeeping" nature of § 301 itself. On the basis of
this evidence of legislative intent, we agree with the Court of
Appeals for the District of Columbia Circuit that "[s]ection 301
does not authorize regulations limiting the scope of section 1905." Charles River Park "A," Inc. v. Department of HUD, 171
U.S.App.D.C. 286, 293-294, 519 F.2d 935, 942-943 (1975)

															There is also a procedural defect in the OFCCP disclosure
regulations which precludes courts from affording them the force
and effect of law. That defect is a lack of strict compliance with
the APA. Recently we have had occasion to examine the requirements
of the APA in the context of "legislative" or "substantive"
rulemaking. In Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.
S. 519 (1978), we held that courts could only in
"extraordinary circumstances" impose procedural requirements on an
agency beyond those specified in the APA. It is within Page 441 U. S. 313 an agency's discretion to afford parties more procedure, but it
is not the province of the courts to do so. In Vermont
Yankee, we recognized that the APA is " a formula upon
which opposing social and political forces have come to rest.'" Id. at 435 U. S. 547 (quoting Wong Yang Sung v. McGrath, 339 U. S.
33 , 339 U. S. 40 (1950)). Courts upset that balance when they override informed
choice of procedures and impose obligations not required by the
APA. By the same token, courts are charged with maintaining the
balance: ensuring that agencies comply with the "outline of minimum
essential rights and procedures" set out in the APA. H.R.Rep.
No.1980, 79th Cong., 2d Sess., 16 (1946); see Vermont Yankee
Nuclear Power Corp., supra at 435 U. S. 549 n. 21. Certainly regulations subject to the APA cannot be afforded
the "force and effect of law" if not promulgated pursuant to the
statutory procedural minimum found in that Act. [ Footnote 43 ] Section 4 of the APA, 5 U.S.C. § 553, specifies that an agency
shall afford interested persons general notice of proposed
rulemaking and an opportunity to comment before a substantive rule
is promulgated. [ Footnote
44 ] "Interpretive rules, general Page 441 U. S. 314 statements of policy or rules of agency organization, procedure
or practice" are exempt from these requirements. When the Secretary
of Labor published the regulations pertinent in this case, he
stated:

															"As the changes made by this document relate solely to
interpretive rules, general statements of policy, and to rules of
agency procedure and practice, neither notice of proposed rule
making nor public participation therein is required by 5 U.S.C.
553. Since the changes made by this document either relieve
restrictions or are interpretative rules, no delay in effective
date is required by 5 Page 441 U. S. 315 U.S.C. 553(d). These rules shall therefore be effective
immediately."

															"In accordance with the spirit of the public policy set forth in
5 U.S.C. 553, interested persons may submit written comments,
suggestions, data, or arguments to the Director, Office of Federal
Contract Compliance. . . ."

															38 Fed.Reg. 3193 (1973). Thus, the regulations were essentially
treated as interpretative rules, and interested parties were not
afforded the notice of proposed rulemaking required for substantive
rules under 5 U.S.C. § 553(b). As we observed in Batterton v.
Francis, 432 U.S. at 432 U. S. 425 n. 9:

															"[A] court is not required to give effect to an interpretative
regulation. Varying degrees of deference are accorded to
administrative interpretations based on such factors as the timing
and consistency of the agency's position, and the nature of its
expertise."

															We need not decide whether these regulations are properly
characterized as "interpretative rules." It is enough that such
regulations are not properly promulgated as substantive rules, and
therefore not the product of procedures which Congress prescribed
as necessary prerequisites to giving a regulation the binding
effect of law. [ Footnote 45 ]
An interpretative regulation or general statement Page 441 U. S. 316 of agency policy cannot be the "authoriz[ation] by law" required
by § 1905.

															This disposition best comports with both the purposes underlying
the APA and sound administrative practice. Here, important
interests are in conflict: the public's access to information in
the Government's files and concerns about personal privacy and
business confidentiality. The OFCCP's regulations attempt to strike
a balance. In enacting the APA, Congress made a judgment that
notions of fairness and informed administrative decisionmaking
require that agency decisions be made only after affording
interested persons notice and an opportunity to comment. With the
consideration that is the necessary and intended consequence of
such procedures, OFCCP might have decided that a different
accommodation was more appropriate. B We reject, however, Chrysler's contention that the Trade Secrets
Act affords a private right of action to enjoin disclosure in
violation of the statute. In Cort v. Ash, 422 U. S.
66 (1975), we noted that this Court has rarely implied a
private right of action under a criminal statute, and, where it has
done so, "there was at least a statutory basis for inferring that a
civil cause of action of some sort lay in favor of someone."
[ Footnote 46 ] Nothing in §
1905 prompts such an inference. Nor are other pertinent
circumstances outlined in Cort present here. As our review
of the legislative history of § 1905 -- or Page 441 U. S. 317 lack of same -- might suggest, there is no indication of
legislative intent to create a private right of action. Most
importantly, a private right of action under § 1905 is not
"necessary to make effective the congressional purpose," J. I.
Case Co. v. Borak, 377 U. S. 426 , 377 U. S. 433 (1964), for we find that review of DLA's decision to disclose
Chrysler's employment data is available under the APA. [ Footnote 47 ] IV While Chrysler may not avail itself of any violations of the
provisions of § 1905 in a separate cause of action, any such
violations may have a dispositive effect on the outcome of judicial
review of agency action pursuant to § 10 of the APA. Section 10(a)
of the APA provides that

															"[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action . . . is entitled
to judicial review thereof."

															5 U.S.C. § 702. Two exceptions to this general rule of
reviewability are set out in § 10. Review is not available where
"statutes preclude judicial review" or where "agency action is
committed to agency discretion by law." 5 U.S.C. §§ 701(a)(1), (2).
In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 401 U. S. 410 (1971), the Court held that the latter exception applies "where statutes are drawn in such broad terms that, in a given case,
there is no law to apply,'" quoting S.Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945). Were we simply confronted with the authorization
in 5 U.S.C. § 301 to prescribe regulations regarding "the custody,
use, and preservation of [agency] records, papers, and property,"
it would be difficult to derive any standards limiting agency
conduct which might constitute "law to apply." But our discussion
in 441 U. S. S.
318� that § 1905 and any "authoriz[ation] by law" contemplated by
that section place substantive limits on agency action. [ Footnote 48 ] Therefore, we conclude
that DLA's decision to disclose the Chrysler reports is reviewable
agency action, and Chrysler is a person "adversely affected or
aggrieved" within the meaning of § 10(a). Both Chrysler and the respondents agree that there is APA review
of DLA's decision. They disagree on the proper scope of review.
Chrysler argues that there should be de novo review, while
the respondents contend that such review is only available in
extraordinary cases, and this is not such a case.

															The pertinent provisions of § 10(e) of the APA, 5 U.S.C. § 706,
state that a reviewing court shall

															"(2) hold unlawful and set aside agency action, findings, and
conclusions found to be"

															"(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;"

															" * * * *" "(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court."

															For the reasons previously stated, we believe any disclosure
that violates § 1905 is "not in accordance with law" within the
meaning of 5 U.S.C. § 706(2)(A). De novo review by the
District Court is ordinarily not necessary to decide whether a
contemplated disclosure runs afoul of § 1905. The District Court in
this case concluded that disclosure of some of Chrysler's documents
was barred by § 1905, but the Court of Appeals did not reach the
issue. We shall therefore vacate the Court of Appeals' judgment and
remand for further proceedings consistent with this opinion in
order that the Court Page 441 U. S. 319 of Appeals may consider whether the contemplated disclosures
would violate the prohibition of § 1905. [ Footnote 49 ] Since the decision regarding this
substantive issue -- the scope of § 1905 -- will necessarily have
some effect on the proper form of judicial review pursuant to §
706(2), we think it unnecessary, and therefore unwise, at the
present stage of this case for us to express any additional views
on that issue. Vacated and remanded. [ Footnote 1 ]

															Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.),
prohibits discrimination on the basis of "race, creed, color, or
national origin" in federal employment or by government
contractors. Under § 202 of this Executive Order, most Government
contracts must contain a provision whereby the contractor agrees
not to discriminate in such a fashion and to take affirmative
action to ensure equal employment opportunity. With promulgation of
Executive Order No. 11375, 3 CFR 684 (1966-1970 Comp.), in 1967,
President Johnson extended the requirements of the 1965 Order to
prohibit discrimination on the basis of sex.

															[ Footnote 2 ]

															41 CFR §§ 60-1.3, 60-1.7 (1978).

															[ Footnote 3 ]

															For convenience all references will be to DLA.

															[ Footnote 4 ]

															41 CFR §§ 60-1.20, 60-1.24 (1978). The term "alphabet soup"
gained currency in the early days of the New Deal as a description
of the proliferation of new agencies such as WPA and PWA. The
terminology required to describe the present controversy suggests
that the "alphabet soup" of the New Deal era was, by comparison, a
clear broth.

															[ Footnote 5 ]

															§ 60-40.2(a). The regulations also state that EEO-1 Reports
"shall be disclosed," § 60-40.4, and that AAP's "must be disclosed"
if not within limited exceptions. §§ 60-40.2(b)(1), 60-40.3.

															[ Footnote 6 ]

															Manning tables are lists of job titles and of the number of
people who perform each job.

															[ Footnote 7 ] Compare Westinghouse Electric Corp. v. Schlesinger, 542
F.2d 1190 (CA4 1976), cert. denied, 431 U.S. 924 (1977), with Sears, Roebuck & Co. v. Eckerd, 575 F.2d 1197
(CA7 1978); General Dynamics Corp. v. Marshall, 572 F.2d
1211 (CA 1978); Pennzoil Co. v. FPC, 534 F.2d 627 (CA5
1976); Charles River Park "A," Inc. v. Department of HUD, 171 U.S.App.D.C. 286, 519 F.2d 935 (1975).

															[ Footnote 8 ] NLRB v. Robbins Tire & Rubber Co., 437 U.
S. 214 (1978); Department of Air Force v. Rose, 425 U. S. 352 (1976); FAA Administrator v. Robertson, 422 U.
S. 255 (1975); NLRB v. Sears, Roebuck &
Co., 421 U. S. 132 (1975); Renegotiation Bd. v. Grumman Aircraft Engineering
Corp., 421 U. S. 168 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1 (1974); EPA v. Mink, 410 U. S. 73 (1973)

															[ Footnote 9 ]

															"Subsection (b) of the Act creates nine exemptions from
compelled disclosures. These exemptions are explicitly made
exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up
concrete, workable standards for determining whether particular
material may be withheld or must be disclosed." EPA v. Mink, supra, at 410 U. S. 79 (emphasis added).

															[ Footnote 10 ]

															We observed in Department of Air Force v. Rose, supra, at 425 U. S. 361 ,
that "disclosure, not secrecy, is the dominant objective of the
Act." The legislative history is replete with references to
Congress' desire to loosen the agency's grip on the data underlying
governmental decisionmaking.

															"A democratic society requires an informed, intelligent
electorate, and the intelligence of the electorate varies as the
quantity and quality of its information varies. . . ."

															"[The FOIA] provides the necessary machinery to assure the
availability of Government information necessary to an informed
electorate."

															H.R.Rep. No. 1497, 9th Cong., 2d Sess., 12 (1966).

															"Although the theory of an informed electorate is vital to the
proper operation of a democracy, there is nowhere in our present
law a statute which affirmatively provides for that
information."

															S.Rep. No. 813, 9th Cong., 1st Sess., 3 (1965).

															[ Footnote 11 ] See, e.g., H.R.Rep. No. 1497, supra, at 10
(emphasis added; footnote omitted):

															"[Exemption 4] would assure the confidentiality of information
obtained by the Government through questionnaires or through
material submitted and disclosures made in procedures such as the
mediation of labor-management controversies. It exempts such
material if it would not customarily be made public by the person
from whom it was obtained by the Government. . . . It would . . .
include information which is given to an agency in confidence,
since a citizen must be able to confide in his Government.
Moreover, where the Government has obligated itself in food
faith not to disclose documents or information which it receives,
it should be able to honor such obligations. "

															The italicized passage is obviously consistent with Exemption
4's being an exception to the disclosure mandate of the FOIA, and
not a limitation on agency discretion.

															[ Footnote 12 ] See S.Rep. No. 813, supra, at 3:

															"It is not an easy task to balance the opposing interests, but
it is not an impossible one, either. It is not necessary to
conclude that, to protect one of the interests, the other must, of
necessity, either be abrogated or substantially subordinated.
Success lies in providing a workable formula which encompasses,
balances, and protects all interests, yet places emphasis on the
fullest responsible disclosure."

															[ Footnote 13 ] Id. at 9; n 11, supra. [ Footnote 14 ]

															It is informative in this regard to compare the FOIA with the
Privacy Act of 1974, 5 U.S.C. § 552a. In the latter Act, Congress
explicitly requires agencies to withhold records about an
individual from most third parties unless the subject gives his
permission. Even more telling is 49 U.S.C. § 1357, a section which
authorizes the Administrator of the FAA to take anti-hijacking
measures, including research and development of protection
devices.

															"Notwithstanding [the FOIA], the Administrator shall prescribe
such regulations as he may deem necessary to prohibit disclosure of
any information obtained or developed in the conduct of research
and development activities under this subsection if, in the opinion
of the Administrator, the disclosure of such information -- "

															" * * * *" "(B) would reveal trade secrets or privileged or confidential
commercial or financial information obtained from any person. . .
."

															§ 1357(d)(2)(b)

															[ Footnote 15 ]

															Section 3 of the original APA provided that an agency should
generally publish or make available organizational data, general
statements of policy, rules, and final orders. Exception was made
for matters "requiring secrecy in the public interest" or "relating
solely to the internal management of an agency." This original
version of § 3 was repealed with passage of the FOIA. See EPA
v. Mink, 410 U. S. 73 (1973).

															[ Footnote 16 ]

															H.R.Rep. No. 1497, 89th Cong., 2d Sess., 2, 5, 7 (1966)
(emphasis added). See also S.Rep. No. 813, 9th Cong., 1st
Sess., 10 (1965). Congressman Moss, the House sponsor of the FOIA,
described the exemptions on the House floor as indicating what
documents "may be withheld." 112 Cong.Rec. 13641 (1966).

															[ Footnote 17 ]

															41 CFR §§ 60.40-1 to 60.40-4 (197).

															[ Footnote 18 ] E.g., Batterton v. Francis, 432 U.
S. 416 , 432 U. S. 425 n. 9 (1977); Foti v. INS, 375 U.
S. 217 , 375 U. S. 223 (1963); United States v. Mersky, 361 U.
S. 431 , 361 U. S.
437 -438 (1960); Atchison, T. & S. F. R. Co. v.
Scarlett, 300 U. S. 471 , 300 U. S. 474 (1937).

															[ Footnote 19 ] Paul v. United States, 371 U.
S. 245 (1963); Free v. Bland, 369 U.
S. 663 (1962); Public Utilities Comm'n of California
v. United States, 355 U. S. 534 (1958).

															[ Footnote 20 ]

															Revenue Act of 1864, § 3, 13 Stat. 238.

															[ Footnote 21 ]

															The last version was codified as 18 U.S.C. § 216 (1940 ed.):

															"It hall be unlawful for any collector, deputy collector, agent,
clerk, or other officer or employee of the United States to divulge
or to make known in any manner whatever not provided by law to any
person the operations, style of work, or apparatus of any
manufacturer or producer visited by him in the discharge of his
official duties, or the amount or source of income, profits,
losses, expenditures, or any particular thereof, set forth or
disclosed in any income return, or to permit any income return or
copy thereof or any book containing any abstract or particulars
thereof to be seen or examined by any person except as provided by
law; and it shall be unlawful for any person to print or publish in
any manner whatever not provided by law any income return, or any
part thereof or source of income, profits, losses, or expenditures
appearing in any income return; and any offense against the
foregoing provision shall be a misdemeanor and be punished by a
fine not exceeding $1,000 or by imprisonment not exceeding one
year, or both, at the discretion of the court; and if the offender
be an officer or employee of the United States he shall be
dismissed from office or discharged from employment."

															[ Footnote 22 ] See, e.g., 26 Cong.Rec. 6893 (1948) (Sen. Aldrich)
(expressing concern that taxpayer's confidential information is "to
be turned over to the tender mercies of poorly paid revenue
agents"); id. at 6924 (Sen. Teller) (exposing records to
the "idle curiosity of a revenue officer"). See also Cong.Globe, 38th Cong., 1st Sess., 2997 (1864) (Rep. Brown)
(expressing concern that 1864 revenue provisions would allow "every
little petty officer" to investigate the affairs of private
citizens).

															[ Footnote 23 ]

															There was virtually no Washington bureaucracy created by the Act
of July 1, 1862, ch. 119, 12 Stat. 432, the statute to which the
present Internal Revenue Service can be traced. Researchers report
that, during the Civil War, 85% of the operations of the Bureau of
Internal Revenue were carried out in the field, "including the
assessing and collection of taxes, the handling of appeals, and
punishment for frauds" -- and this balance of responsibility was
not generally upset until the 20th century. L. Schmeckebier &
F. Eble, The Bureau of Internal Revenue 8, 40-43 (1923). Agents had
the power to enter any home or business establishment to look for
taxable property and examine books of accounts. Information was
collected and processed in the field. It is, therefore, not
surprising to find that congressional comments during this period
focused on potential abuses by agents in the field, and not on
breaches of confidentiality by a Washington-based bureaucracy.

															[ Footnote 24 ] See H.R.Rep. No. 304, 80th Cong., 1st Sess., A127-A128
(1947).

															[ Footnote 25 ]

															The Tariff Commission statute, last codified as 19 U.S.C. § 1335
(1940 ed.), provided:

															"It shall be unlawful for any member of the commission, or for
any employee, agent, or clerk of the commission, or any other
officer or employee of the United States, to divulge, or to make
known in any manner whatever not provided for by law, to any
person, the trade secrets or processes of any person, firm,
copartnership, corporation, or association embraced in any
examination or investigation conducted by the commission, or by
order of the commission, or by order of any member thereof. Any
offense against the provisions of this section shall be a
misdemeanor and be punished by a fine not exceeding $1,000, or by
imprisonment not exceeding one year, or both, in the discretion of
the court, and such offender shall also be dismissed from office or
discharged from employment."

															[ Footnote 26 ]

															15 U.S.C. § 176a (1940 ed.):

															"Any statistical information furnished in confidence to the
Bureau of Foreign and Domestic Commerce by individuals,
corporations, and firms shall be held to be confidential, and shall
be used only for the statistical purposes for which it is supplied.
The Director of the Bureau of Foreign and Domestic Commerce shall
not permit anyone other than the sworn employees of the Bureau to
examine such individual reports, nor shall he permit any statistics
of domestic commerce to be published in such manner as to reveal
the identity of the individual, corporation, or firm furnishing
such data."

															[ Footnote 27 ]

															H.R.Rep. No. 304, supra, n 24, at A127.

															[ Footnote 28 ]

															In a December 1, 1953, opinion, the Attorney General advised the
Secretary of the Treasury that he should regard himself as bound by
§ 1905. The Attorney General noted:

															"The reviser of the Criminal Code describes the provision as a
consolidation of three other sections formerly appearing in the
United States Code. Of the three, two expressly operated as
prohibitions on the heads of agencies."

															41 Op.Atty.Gen. 166, 167 (footnote omitted). See also
id. at 221 (Atty. Gen. Brownell advising Federal
Communications Commission Chairman to regard himself as bound).

															[ Footnote 29 ]

															If we accepted the respondents' position, 18 U.S.C. § 1905 would
simply be irrelevant to the issue of public access to agency
information. The FOIA and other such "access" legislation are
concerned with formal agency action -- to what extent can an agency
or department or, put differently, the head of an agency or
department, withhold information contained within the governmental
unit's files. It is all but inconceivable that a Government
employee would withhold information which his superiors
had directed him to release; and these Acts are simply not
addressed to disclosure by a Government employee that is
not sanctioned by the employing agency. This is not to say that the
actions of individual employees might not be inconsistent with the
access legislation. But such actions are only inconsistent insofar
as they are imputed to the agencies themselves. Therefore, if §
1905 is not addressed to formal agency action, i.e., action approved by the agency or department head -- there should
have been no concern in Congress regarding the interrelationship of
§ 1905 and the access legislation, for they would then address
totally different types of disclosure.

															In fact, the legislative history of all the significant access
legislation of the last 20 years evinces a concern with this
relationship and a concomitant universal assumption that § 1905
embraces formal agency action. Congress was assured that the 1958
amendment to 5 U.S.C. § 301, the housekeeping statute that affords
department heads custodial responsibility for department records,
would not circumscribe the confidentiality mandated by § 1905. The
1958 amendment simply clarified that § 301 itself was not
substantive authority to withhold information. See infra at 441 U. S.
310 -312. Also in 1958, the Subcommittee on
Constitutional Rights of the Senate Committee on the Judiciary
conducted hearings on the power of the President to withhold
information from Congress. As part of the investigative effort, a
list was compiled of all statutes restricting disclosure of
Government information. Section 1905 was listed among them.
Hearings before the Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary on S. 921, 85th Cong., 2d Sess.,
pt. 2, p 96 (1958). Two years later, the House Committee on
Government Operations conducted a study on statutory authorities
restricting or requiring the release of information under the
control of executive departments or independent agencies, and again
prominent among the statutes "affecting the availability of
information to the public" was 18 U.S.C. § 1905. House Committee on
Government Operations, Federal Statutes on the Availability of
Information 262 (Comm.Print.1960) (§ 1905 denominated as statute
prohibiting the disclosure of certain information).

															In FAA Administrator v. Robertson, 422 U.S. at 422 U. S.
264 -265, we recognized the importance of these lists in
Congress' later deliberations concerning the FOIA, particularly in
the consideration of the original Exemption 3. That Exemption
excepted from the operation of the FOIA matters "specifically
exempted from disclosure by statute." As we noted in Robertson: "When the House Committee on Government Operations focused on
Exemption 3, it took note that there are 'nearly 100 statutes or
parts of statutes which restrict public access to specific
Government records. These would not be modified by the
public records provisions of [the FOIA].' H.R.Rep. No. 1497, 89th
Cong., 2d Sess., 10 (1966). (Emphasis added.)" Id. at 422 U. S.
265 .

															In determining that the statute at issue in Robertson, 49 U.S.C. § 1504, was within Exemption 3, we observed that the
statute was on these prior lists, and that the Civil Aeronautics
Board had brought the statute to the attention of both the House
and Senate Committees as an exempting statute during the hearings
on the FOIA. 422 U.S. at 422 U. S. 264 ,
and n. 11. In fact, during those hearings, 18 U.S.C. § 1905 was the
most frequently cited restriction on agency or department
disclosure of information. Hearings before the Subcommittee of the
House Committee on Government Operations on H.R. 5012 et
al., 89th Cong., 1st Sess., 23 (1965) (cited by 28 agencies as
authority for withholding information). Among those citing the
statute was the Department of Justice. Id. at 386
("commercial information received or assembled in connection with
departmental functions must be withheld pursuant to these
requirements"). See also id. at 20 (colloquy between Rep.
Moss and Asst. Atty. Gen. Schlei); Attorney General's Memorandum on
the Public Information Section of the Administrative Procedure Act
31-32 (June 1967) (18 U.S.C. § 1905 among the "nearly 100 statutes"
mentioned in the House Report).

															Most recently, in its Report on the Government in the Sunshine
Act, the House Committee on Government Operations observed:

															"[T]he Trade Secrets Act, 18 U.S.C. § 1905, which relates only
to the disclosure of information where disclosure is 'not
authorized by law,' would not permit the withholding of information
otherwise required to be disclosed by the Freedom of Information
Act, since the disclosure is there authorized by law. Thus, for
example, if material did not come within the broad trade secrets
exemption contained in the Freedom of Information Act, section 1905
would not justify withholding; on the other hand, if material is
within the trade secrets exemption of the Freedom of Information
Act and therefore subject to disclosure if the agency determines
that disclosure is in the public interest, section 1905 must be
considered to ascertain whether the agency is forbidden from
disclosing the information."

															H.R.Rep. No. 94-880, pt. 1, p. 23 (1976).

															[ Footnote 30 ]

															5 U.S.C. §§ 553(b), (d).

															[ Footnote 31 ]

															Neither the House nor Senate Report attempted to expound on the
distinction. In prior cases, we have given some weight to the
Attorney General's Manual on the Administrative Procedure Act
(1947), since the Justice Department was heavily involved in the
legislative process that resulted in the Act's enactment in 1946. See Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U. S. 519 , 435 U. S. 546 (1978); Power Reactor Co. v. Electricians, 367 U.
S. 396 , 367 U. S. 408 (1961); United States v. Zucca, 351 U. S.
91 , 351 U. S. 96 (1956).

															The Manual refers to substantive rules as rules that "implement"
the statute. "Such rules have the force and effect of law." Manual, supra, at 30 n. 3. In contrast it suggests that
"interpretive rules" and "general statements of policy" do not have
the force and effect of law. Interpretive rules are "issued by an
agency to advise the public of the agency's construction of the
statutes and rules which it administers." Ibid. General
statements of policy are "statements issued by an agency to advise
the public prospectively of the manner in which the agency proposes
to exercise a discretionary power." Ibid. See
also Final Report of Attorney General's Committee on
Administrative Procedure 27 (1941).

															[ Footnote 32 ]

															Quoting Attorney General's Manual on the Administrative
Procedure Act, supra, at 30 n. 3.

															[ Footnote 33 ] See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of
Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.
S. 54 (1971); Hearings before the Subcommittee on
Separation of Powers of the Senate Committee on the Judiciary on
the Philadelphia Plan and S. 931, 91st Cong., 1st Sess. (1969);
Jones, The Bugaboo of Employment Quotas, 1970 Wis.L.Rev. 341;
Leiken, Preferential Treatment in the Skilled Building Trades: An
Analysis of the Philadelphia Plan, 56 Cornell L.Rev. 4 (1970);
Comment, The Philadelphia Plan: A Study in the Dynamics of
Executive Power, 39 U.Chi.L.Rev. 723 (1972); Note, Executive Order
11246: Anti-Discrimination Obligations in Government Contracts, 44
N.Y.U.L.Rev. 590 (1969).

															The Executive Order itself merely states that it is promulgated
"[u]nder and by virtue of the authority vested in [the] President
of the United States by the Constitution and statutes of the United
States." 3 CFR 339 (1964-1965 Comp.).

															[ Footnote 34 ]

															63 Stat. 377, as amended, 40 U.S.C. § 471 et seq. The
Act as amended is prefaced with the following declaration of
policy:

															"It is the intent of the Congress in enacting this legislation
to provide for the Government an economical and efficient system
for (a) the procurement and supply of personal property and
nonpersonal services, including related functions such as
contracting, inspection, storage, issue, specifications, property
identification and classification, transportation and traffic
management, establishment of pools or systems for transportation of
Government personnel and property by motor vehicle within specific
areas, management of public utility services, repairing and
converting, establishment of inventory levels, establishment of
forms and procedures, and representation before Federal and State
regulatory bodies; (b) the utilization of available property; (c)
the disposal of surplus property; and (d) records management."

															40 U.S.C. § 471.

															The Act explicitly authorizes Executive Orders "necessary to
effectuate [its] provisions." § 486(a). However, nowhere in the Act
is there a specific reference to employment discrimination.

															Lower courts have suggested that § 486(a) was the authority for
predecessors of Executive Order 11246. Farmer v. Philadelphia
Electric Co., 329 F.2d 3 (CA3 1964); Forks v. Texas
Instruments, Inc., 375 F.2d 629 (CA5), cert. denied, 389 U.S. 977 (1967). But as the Third Circuit noted in Contractors Assn. of Eastern Pa. v. Secretary of Labor,
supra, at 167, these suggestions were dicta, and made without
any analysis of the nexus between the Federal Property and
Administrative Services Act and the Executive Orders. It went on to
hold, however, that § 46(a) was authority for at least some aspects
of Executive Order 11246 on the ground that

															"it is in the interest of the United States in all procurement
to see that its suppliers are not, over the long run, increasing
its costs and delaying its programs by excluding from the labor
pool available minority workmen."

															442 F.2d at 170.

															[ Footnote 35 ]

															42 U.S.C. §§ 2000d to 2000d-4, 2000e to 2000e-17. Significantly,
the question has usually been put in terms of whether Executive
Order 11246 is inconsistent with these titles of the Civil Rights
Act of 1964. See, e.g., Contractors Assn. of Eastern Pa. v.
Secretary of Labor, supra, at 171-174.

															Title VI grants federal agencies that are "empowered to extend
Federal financial assistance to any program or activity, by way of
grant, loan, or contract," the authority to promulgate rules

															"which shall be consistent with achievement of the objectives of
the statute authorizing the financial assistance in connection with
which the action is taken."

															Such rules must be approved by the President, and their
enforcement is subject to congressional review.

															"In the case of any action terminating, or refusing to grant or
continue, assistance because of failure to comply with a
requirement imposed pursuant to this section, the head of the
Federal department or agency shall file with the committees of the
House and Senate having legislative jurisdiction over the program
or activity involved a full written report of the circumstances and
the grounds for such action."

															§ 602 of the Civil Rights Act of 1964, 7 Stat. 252, 42 U.S.C. §
2000d-1. Executive Order 11246 contains no provision for
congressional review, and therefore is not promulgated pursuant to
§ 602. Cf. Exec.Order No. 11247, 3 CFR 348 (1964-1965
Comp.). Titles VI and VII contain no other express substantive
delegation to the President.

															[ Footnote 36 ]

															This is an argument that Congress ratified Executive Order 11246
as amended, when it rejected a series of amendments to the Equal
Employment Opportunity Act that were designed to cut back on
affirmative action efforts under the Executive Order.

															[ Footnote 37 ] See Farkas v. Texas Instrument, Inc., supra; Farmer v.
Philadelphia Electric Co., supra; cf. Perkins v. Lukens Steel
Co., 310 U. S. 113 (1940); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 637 (1952) (Jackson, J., concurring).

															[ Footnote 38 ]

															The respondents cite Jones v. Rath Packing Co., 430 U. S. 519 , 430 U. S. 536 (1977), for the proposition that

															"it has long been acknowledged that administrative regulations
consistent with the agencies' substantive statutes have the force
and effect of law."

															Brief for Respondents 3, and n. 24. The legislative delegation
in that case, however, was quite explicit. The issue was whether
state regulation of the labeling of meats and flour was preempted
by the Federal Meat Inspection Act (FMIA), the Federal Food, Drug,
and Cosmetic Act (FDCA), and the Fair Packaging and Labeling Act.
The FMIA provides that meat or a meat product is misbranded

															"(5) if in a package or other container unless it bears a label
showing . . . (B) an accurate statement of the quantity of the
contents in terms of weight, measure, or numerical count: Provided, That . . . reasonable variations may be
permitted, and exemptions as to small packages may be established,
by regulations prescribed by the Secretary."

															§ 1(n)(5) of the FMIA, 21 U.S.C. § 601(n)(5). There is a similar
provision in the FDCA.

															[ Footnote 39 ] See H.R.Rep. No. 1461, 5th Cong., 2d Sess., 1
(1958):

															"The law has been called an office 'housekeeping' statute,
enacted to help General Washington get his administration underway
by spelling out the authority for executive officials to set up
offices and file Government documents. The documents involved are
papers pertaining to the day-to-day business of Government which
are not restricted under other specific laws nor classified as
military information or secrets of state."

															The Secretary of Labor did not cite this statute as authority
for the OFCCP disclosure regulations. 3 Fed.Reg. 3192-3193
(1973).

															[ Footnote 40 ]

															This does not mean, of course, that disclosure regulations
promulgated on the basis of § 301 are "in excess of statutory
jurisdiction, authority, or limitations" for purposes of the APA, 5
U.S.C. § 706(2)(C). It simply means that disclosure pursuant to
them is not "authorized by law" within the meaning of § 1905.

															[ Footnote 41 ]

															The House Committee on Government Operations cited approvingly
an observation by legal experts that

															"[§ 301] merely gives department heads authority to regulate
within their departments the way in which requests for information
are to be dealt with -- for example, by centralizing the authority
to deal with such requests in the department head."

															H.R.Rep. No. 1461, 85th Cong., 2d Sess., 7 (1958).

															It noted that the members of its Special Subcommittee on
Government Information

															"unanimously agreed that [§ 301] originally was adopted in 1789
to provide for the day-to-day office housekeeping in the Government
departments, but through misuse, it has become twisted into a claim
of authority to withhold information." Id. at 12.

															There are numerous remarks to similar effect in the Senate
Report and the floor debates. See, e.g., S.Rep. No. 1621,
5th Cong., 2d Sess., 2 (1958); 104 Cong.Rec. 6549 (Rep. Moss), 6560
(Rep. Fascell), 15690-15696 (colloquy between Sens. Hruska and
Johnston) (1958).

															[ Footnote 42 ]

															Throughout the floor debates, references are made to 78 statutes
that require the withholding of information, and assurances are
consistently given that these statutes are not in any way affected
by § 301. E.g., 104 Cong.Rec. 654 (Rep. Brown), 6549-6550
(Rep. Moss) (1958). It is clear from Congressman Moss' comments
that § 1905 is one of those statutes. 104 Cong.Rec. 6549-6550
(1958). There is also frequent reference to trade secrets as not
being disclosable and the confidentiality of that information as
not being affected by § 301. H.R.Rep. No. 1461, 5th Cong., 2d
Sess., 2 (195); 104 Cong.Rec. 655 (Rep. Fascell), 6564 (Rep.
Wright) (1958). The following exchange between Congressmen Meader
and Moss is also instructive.

															"Mr. MEADER. Mr. Chairman, I should like the attention of the
gentleman from California [Mr. Moss], the sponsor of the measure. I
would like to read three paragraphs from the additional views I
submitted to the report which appear upon page 62 of the report. I
said:"

															"I believe there is unanimous sentiment in the Government
Operations Committee on the following points:"

															"1. That departments and agencies of the Government have
construed [§ 301] to authorize them to withhold information from
the public and to limit the availability of records to the
public."

															"2. That this interpretation is a strained and erroneous
interpretation of the intent of Congress in [§ 301], which merely
authorized department heads to make regulations governing
day-to-day operation of the department -- a so-called housekeeping
function; and that [§ 301] was not intended to deal with the
authority to release or withhold information or
records."

															" * * * *" "I now yield to the gentleman from California to state whether
or not those three points as I have set them forth in my additional
views in the report on this measure accurately state what he
understands to be the consensus of the judgment of the members of
the Government Operations Committee in reporting out this
legislation?"

															"MR. MOSS. That is correct as I interpret it." Id. at 6562 (emphasis added) .

															[ Footnote 43 ] See, e.g., Morton v. Ruiz, 415 U.
S. 199 (1974); United States v. Allegheny-Ludlum
Steel Corp., 406 U. S. 742 , 406 U. S. 758 (1972).

															[ Footnote 44 ]

															5 U.S.C. § 553:

															"(a) This section applies, according to the provisions thereof,
except to the extent that there is involved -- "

															"(1) a military or foreign affairs function of the United
States; or"

															"(2) a matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts."

															"(b) General notice of proposed rule making shall be published
in the Federal Register, unless persons subject thereto are named
and either personally served or otherwise have actual notice
thereof in accordance with law. The notice shall include -- "

															"(1) a statement of the time, place, and nature of public rule
making proceedings;"

															"(2) reference to the legal authority under which the rule is
proposed; and"

															"(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved."

															"Except when notice or hearing is required by statute, this
subsection does not apply -- "

															"(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or"

															"(B) when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest."

															"(c) After notice required by this section, the agency shall
give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments with
or without opportunity for oral presentation. After consideration
of the relevant matter presented, the agency shall incorporate in
the rules adopted a concise general statement of their basis and
purpose. When rules are required by statute to be made on the
record after opportunity for an agency hearing, sections 556 and
557 of this title apply instead of this subsection."

															"(d) The required publication or service of a substantive rule
shall be made not less than 30 days before its effective date,
except -- "

															"(1) a substantive rule which grants or recognizes an exemption
or relieves a restriction;"

															"(2) interpretative rules and statements of policy; or"

															"(3) as otherwise provided by the agency for good cause found
and published with the rule."

															"(e) Each agency shall give an interested person the right to
petition for the issuance, amendment, or repeal of a rule."

															[ Footnote 45 ]

															The regulations at issue in Jones v. Rath Packing Co.,
see n 38, supra, were the product of notice of proposed rulemaking
and comment. 32 Fed.Reg. 10729 (1967); 35 Fed.Reg. 15552
(1970).

															We also note that the respondents' reliance on FCC v.
Schreiber, 381 U. S. 279 (1965), is misplaced. In that case, the Court held that a FCC rule
-- that investigatory proceedings would be public unless a hearing
examiner found that "the public interest, the proper dispatch of
the business . . or the ends of justice" would be served by closed
sessions -- was consistent with the pertinent congressional grant
of authority, and not arbitrary or unreasonable. This Court held
that the District Court impermissibly invaded the province of the
agency when it imposed its own notions of proper procedures. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U. S. 519 (1978). There was no question in the case regarding the
applicability of § 1905. Moreover, the respondents had made a broad
request that " all testimony and documents to be elicited
from them . . . should be received in camera. " 381 U.S. at 381 U. S. 295 (emphasis in original). The Court held that, when specific
information was requested that might actually injure Schreiber's
firm competitively, "there would be ample opportunity to request
that it be received in confidence, and to seek judicial protection
if the request were denied." Id. at 381 U. S.
296 .

															[ Footnote 46 ]

															422 U.S. at 422 U. S. 79 ,
citing Wyandotte Transportation Co. v. United States, 389 U. S. 191 (1967); J. 1. Case Co. v. Borak, 377 U.
S. 426 (1964); Texas & Pacific R. Co. v.
Rigsby, 241 U. S. 33 (1916).

															[ Footnote 47 ]

															Jurisdiction to review agency action under the APA is found in
28 U.S.C. § 1331. See Califano v. Sanders, 430 U. S.
99 (1977).

															Chrysler does not argue in this Court, as it did below, that
private rights of action are available under 42 U.S.C. § 2000e-8(e)
and 44 U.S.C. § 3508.

															[ Footnote 48 ]

															By regulation, the Secretary of Labor also has imposed the
standards of § 1905 on OFCCP and its compliance agencies. 29 CFR §
70.21 (1978).

															[ Footnote 49 ]

															Since the Court of Appeals assumed for purposes of argument that
the material in question was within an exemption to the FOIA, that
court found it unnecessary expressly to decide that issue and it is
open on remand. We, of course, do not here attempt to determine the
relative ambits of Exemption 4 and § 1905, or to determine whether
§ 1905 is an exempting statute within the terms of the amended
Exemption 3, 5 U.S.C. § 522(b)(3). Although there is a theoretical
possibility that material might be outside Exemption 4 yet within
the substantive provisions of § 1905, and that therefore the FOIA
might provide the necessary "authoriz[ation] by law" for purposes
of § 1905, that possibility is, at most, of limited practical
significance in view of the similarity of language between
Exemption 4 and the substantive provisions of § 1905.

															MR. JUSTICE MARSHALL, concurring.

															I agree that respondents' proposed disclosure of information is
not "authorized by law" within the meaning of 18 U.S.C. § 1905, and
I therefore join the opinion of the Court. Because the number and
complexity of the issues presented by this case will inevitably
tend to obscure the dispositive conclusions, I wish to emphasize
the essential basis for the decision today.

															This case does not require us to determine whether, absent a
congressional directive, federal agencies may reveal information
obtained during the exercise of their functions. For whatever
inherent power an agency has in this regard, § 1905 forbids
agencies from divulging certain types of information unless
disclosure is independently "authorized by law." Thus, the
controlling issue in this case is whether the OFCCP disclosure Page 441 U. S. 320 regulations, 41 CFR §§ 60.40-1 to 60.40-4 (1978), provide the
requisite degree of authorization for the agency's proposed
release. The Court holds that they do not, because the regulations
are not sanctioned directly or indirectly by federal legislation.
[ Footnote 2/1 ] In imposing the
authorization requirement of § 1905, Congress obviously meant to
allow only those disclosures contemplated by congressional action. Ante at 441 U. S.
298 -312. Otherwise, the agencies Congress intended to
control could create their own exceptions to § 1905 simply by
promulgating valid disclosure regulations. Finally, the Court holds
that, since § 10(e) of the Administrative Procedure Act requires
agency action to be "in accordance with law," 5 U.S.C. § 706(2)(A),
a reviewing court can prevent any disclosure that would violate §
1905. [ Footnote 2/2 ]

															Our conclusion that disclosure pursuant to the OFCCP regulations
is not "authorized by law" for purposes of § 1905, however, does
not mean the regulations themselves are "in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
right" for purposes of the Administrative Procedure Act. 5 U.S.C. §
706(2)(C). As the Court recognizes, ante at 441 U. S. 309 n. 40, that inquiry involves very different considerations than
those presented in the instant case. Accordingly, we do not
question the general validity of these OFCCP regulations or any
other regulations promulgated under § 201 of Executive Order No.
11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such
an Executive Order must be founded on a legislative enactment.
The Page 441 U. S. 321 Court's holding is only that the OFCCP regulations in issue here
do not "authorize" disclosure within the meaning of § 1905.

															Based on this understanding, I join the opinion of the
Court.

															[ Footnote 2/1 ]

															That the OFCCP regulations were not promulgated in strict
compliance with the Administrative Procedure Act, ante at 441 U. S.
312 -316, is an independent reason why those regulations
do not satisfy the requirements of § 1905, although the agency
could rectify this shortcoming.

															[ Footnote 2/2 ]

															Thus, the courts below must determine on remand whether § 1905
covers the types of information respondents intended to disclose.
Disclosure of those documents not covered by § 1905 would, under
the Court's holding, be "in accordance with law." 5 U.S.C. §
706(2)(A).