UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NAT RESRC DEF CNCL

v.

NRC


99-1383a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued May 8, 2000 Decided July 14, 2000 


No. 99-1383


Natural Resources Defense Council, Inc., et al.,  Petitioners


v.


Nuclear Regulatory Commission and  United States of America, 
Respondents


On Petition for Review of a Regulation of the  Nuclear Regulatory
Commission


David E. Adelman argued the cause for petitioners. With  him on the
briefs were Eric R. Glitzenstein and Howard  Crystal.


Wendy M. Keats, Attorney, U.S. Department of Justice,  argued the cause
for respondents. With her on the brief  were David W. Ogden, Acting
Assistant Attorney General, 


Leonard Schaitman, Attorney, and John F. Cordes, Solicitor,  U.S.
Nuclear Regulatory Commission.


Before: Edwards, Chief Judge, Randolph and Garland,  Circuit Judges.


Opinion for the Court filed by Circuit Judge Garland.


Garland, Circuit Judge: The National Resources Defense  Council, Inc.
(NRDC)1 asks us to vacate a regulation, promul- gated by the Nuclear
Regulatory Commission, that defines  the term "meeting" for purposes
of the Government in the  Sunshine Act, 5 U.S.C. s 552b. The Sunshine
Act requires  that gatherings of members of certain agencies be open
to the  public if they constitute "meetings" under the Act. NRDC 
argues that the Commission's regulation is inconsistent with  the text
and legislative history of the statute. It further  contends that the
regulation is improper because it fails to  provide procedural
safeguards necessary to facilitate effective  relief in the event that
a meeting is improperly closed to the  public.


We deny the petition for review. We are unable to accept  NRDC's first
argument because the Commission has done  nothing more than adopt,
verbatim, the Supreme Court's own  interpretation of the meaning of
"meeting" under the Act, as  set forth in FCC v. ITT World
Communications, Inc., 466  U.S. 463 (1984). We are unable to accept
the second argu- ment because it conflicts with the Court's injunction
against  imposing non-statutory procedural requirements on agency 
decisionmaking, as set forth in Vermont Yankee Nuclear  Power Corp. v.
NRDC, 435 U.S. 519 (1978).


I


The Sunshine Act provides, with ten specified exemptions,  that "every
portion of every meeting of an agency shall be  open to public
observation." 5 U.S.C. s 552b(b) (emphasis 




__________

n 1 NRDC is joined by a number of other public interest groups.  For
ease of reference, this opinion will refer to these parties 
collectively as "NRDC" or "petitioner."


added). It imposes procedural requirements to ensure, inter  alia, that
advance notice is given to the public before agency  meetings take
place. See id. s 552b(e). It also imposes  procedural requirements an
agency must follow before deter- mining that one of the ten exemptions
from the openness  requirement applies. See id. s 552b(d), (f).
However, nei- ther the openness requirement, nor the related
procedural  requirements, are triggered unless the governmental entity
at  issue is an "agency," and unless the gathering in question is a 
"meeting" of that agency.


For purposes of the Act, "agency" is defined as an execu- tive branch
authority or independent regulatory agency  "headed by a collegial
body composed of two or more individ- ual members, a majority of whom
are appointed to such  position by the President with the advice and
consent of the  Senate." Id. s 552b(a)(1) (cross-referencing 5 U.S.C. 
s 552(e), subsequently redesignated s 552(f)). In addition, as  will
become relevant in our later discussion of the ITT case,  the
definition of "agency" extends to "any subdivision thereof  authorized
to act on behalf of the agency." Id. s 552b(a)(1).  The Nuclear
Regulatory Commission is an agency covered by  the Act. See
Philadelphia Newspapers, Inc. v. NRC, 727  F.2d 1195, 1199-1200 (D.C.


The Sunshine Act defines the term "meeting" as "the  deliberations of
at least the number of individual agency  members required to take
action on behalf of the agency  where such deliberations determine or
result in the joint  conduct or disposition of official agency
business...." 5  U.S.C. s 552b(a)(2). The Commission's original
Sunshine Act  regulation, adopted in 1977, merely reproduced the
language  of the statutory definition. See 42 Fed. Reg. 12,875, 12,877
 (1977).3 It also clarified the kinds of communications not  subject
to the Act, explicitly excepting only social gatherings, 




__________

n 2 The Nuclear Regulatory Commission is composed of five  members
appointed by the President and confirmed by the Senate.  See 42 U.S.C.
s 5841.


3 The Sunshine Act requires each covered agency to promul- gate
implementing regulations. See 5 U.S.C. s 552b(g).


and briefings of the Commission by outsiders where discus- sion was
informational and without specific reference to pend- ing Commission
matters. See id. Under the 1977 regulation,  the Commission "treated
every discussion of agency business  by three or more Commissioners,
no matter how informal or  preliminary it might be, as a 'meeting' for
Sunshine Act  purposes." 64 Fed. Reg. 24,936, 24,937 (1999).


In 1984, the Supreme Court decided ITT. In the course of  its opinion,
the Court said the following about the term  "meeting" under the


This statutory language contemplates discussions that  effectively
predetermine official actions. Such discus- sions must be sufficiently
focused on discrete proposals  or issues as to cause or to be likely
to cause the individu- al participating members to form reasonably
firm posi- tions regarding matters pending or likely to arise before 
the agency.


466 U.S. at 471 (citations and quotation marks omitted). In  1985,
noting the decision in ITT, the Commission issued an  "interim" rule
that revised the definition of "meeting" by  appending the Supreme
Court's definition, verbatim, to the  language of the prior
regulation. See 50 Fed. Reg. 20,889  (1985). The 1985 rule stated:


"Meeting" means the deliberations of at least a quorum  of
Commissioners where such deliberations determine or  result in the
joint conduct or disposition of official Com- mission business, that
is, where discussions are suffi- ciently focused on discrete proposals
or issues as to  cause or to be likely to cause the individual
participat- ing members to form reasonably firm positions regard- ing
matters pending or likely to arise before the agency.


Id. at 20,891 (codified at 10 C.F.R. s 9.101(c)) (new language  in
italics).


The 1985 rule was controversial. In response to criticism,  the
Commission announced that it would not conduct non- Sunshine Act
discussions until it put into place procedures to  govern such
discussions. Before the Commission completed 


those procedures, the American Bar Association's Administra- tive Law
Section announced its intention to consider the  issue, and the
Commission decided to defer implementation of  the 1985 rule pending
receipt of the ABA's views. See 64  Fed. Reg. at 24,938. In 1987, the
ABA issued its recommen- dations, which urged federal agencies and
courts to interpret  the term "meeting" as the Commission had proposed
in  1985--by using the Supreme Court's language in ITT. See  ABA
Section of Administrative Law, Report to House of  Delegates (J.A. at
460).4 Despite the ABA's recommenda- tions, the Commission took no
further action. Although the  "interim" rule of 1985 remained on the
books, the agency  continued to apply its pre-1985 regulation.


In May 1999, the Commission published, for notice and  comment in the
Federal Register, its intention to implement  the 1985 rule's
definition of "meeting." The Commission  stated that its purpose was
"to bring the NRC's Sunshine Act  regulations, and the way they are
applied by NRC, into closer  conformity with Congressional intent, as
set forth in the  legislative history of the Sunshine Act and as
clarified in  [ITT]." 64 Fed. Reg. at 24,936. In the Commission's
view,  Congress had "carefully weighed the competing consider- ations
involved: the public's right of access to significant  information, on
the one hand, and the agencies' need to be  able to function in an
efficient and collegial manner on the  other." Id. at 24,939.
"Congress," the Commission said, had  "struck a balance: it did not
legislate openness to the maxi- mum extent possible, nor did it
provide unfettered discretion  to agencies to offer only as much
public access as they might  choose." Id. The notice listed a number
of examples of  topics that might be the subject of non-Sunshine Act
discus- sions under the new rule, "so long as the discussion will not 
effectively predetermine final agency action." Id. at 24,941.  The
topics included: "How well is the agency functioning,  what are our




__________

n 4 The Administrative Law Section issued its recommendations  in 1986;
the ABA adopted them in February 1987. See 64 Fed.  Reg. at 24,938.


challenges in the next five and ten years, what is the state of  our
relations with the public, industry, Congress, the press?"  Id. at
24,941-42.5 A final order implementing the rule be- came effective on
August 23, 1999. 64 Fed. Reg. 39,393  (1999).


II


This court has authority to set aside agency regulations  that are "not
in accord with" the requirements of the Sun- shine Act. 5 U.S.C. s
552b(g). That, NRDC contends, is  how the Commission's definition of
"meeting" should be char- acterized. We consider this contention


A


In petitioner's view, the agency's definition of "meeting" is 
fundamentally inconsistent with both the language and legis- lative
history of the Act. NRDC's argument concerning the  statutory language
cannot be easily dismissed. The Act  states that the term "meeting"
means the deliberations of a  quorum of an agency, "where such
deliberations determine or  result in the joint conduct or disposition
of official agency  business." 5 U.S.C. s 552b(a)(2) (emphasis added).
Select- ing from the "or" clauses, the statutory definition of "meet-
ing" would appear to include any deliberations that "result in  the
joint conduct ... of official agency business," even if they  do not
"determine" either the joint conduct or disposition of  that business.
The Commission's definition, on the other  hand, is limited to
deliberations that are "likely to cause the  individual participating
members to form reasonably firm  positions regarding" the matter--that
is, to deliberations that  "effectively predetermine final agency
action." 64 Fed. Reg.  at 24,941. Indeed, the Commission's examples of
what it  regards as outside the scope of "meetings" demonstrate the 
potential divergence between its definition and the literal 




__________

n 5 The Commission subsequently advised Congress and this  court that
discussions focused on specific pending matters, such as  licensing
and restart authorizations, will not take place except in  "meetings"
covered by the Sunshine Act. See NRC Br. at 36; see  also J.A. at 240,
245, 357 (letters to members of Congress).


statutory language. As NRDC argues, surely formal agency  discussions
of "how well" the agency is functioning, of its  "successes and
failures," of its "major challenges in the next  five and ten years,"
and of the state of its "relations with the  public, industry,
Congress, [or] the press" qualify as the  "joint conduct of official
agency business," even if they do not  predetermine agency


Nor are NRDC's arguments concerning legislative intent  frivolous. As
petitioner points out, the Act begins with a  declaration of policy
that "the public is entitled to the fullest  practicable information
regarding the decisionmaking pro- cesses of the Federal Government."
Pub. L. No. 94-409, s 2,  90 Stat. 1241, 1241 (1976).7 In our own
decision below in ITT,  we made the same point. See 699 F.2d 1219,
1243 (D.C. Cir.  1983) ("[T]he Act's presumption of openness requires
that all  doubts be resolved against closure."), rev'd, 466 U.S. 463 
(1984). NRDC also notes that in an opinion issued prior to  the
Supreme Court's decision in ITT, this court pointed out  that the
Sunshine Act, unlike the Freedom of Information Act  (FOIA), 5 U.S.C.
s 552, lacks an express exemption for  predecisional matters. See
Common Cause v. NRC, 674 F.2d  921, 929 (D.C. Cir. 1982); see also
ITT, 699 F.2d at 1241  ("The broad sweep of the Sunshine Act does not
support a  distinction between an agency's predecisional actions and
its  postdecisional efforts to implement, interpret, and promote 




__________

n 6 Even on a literal reading, however, it is not enough that 
discussions constitute joint conduct of official business; to come 
with the term "meeting," such discussions must be "deliberations" 
that "result in" such joint conduct. 5 U.S.C. s 552b(a)(2).


7 See also H.R. Rep. No. 94-880, pt. 1, at 2 (1976) ("Absent  special
circumstances, there is no reason why the public should not  have the
right to observe the agency decisionmaking process first  hand."). The
Commission notes, however, that the Act's declaration  of policy goes
on to state that "the purpose of this Act [is] to  provide the public
with such information while protecting the rights  of individuals and
the ability of the Government to carry out its  responsibilities."
Pub. L. No. 94-409, s 2, 90 Stat. at 1241.


its policies.").8 And NRDC emphasizes, as we did in the  decision
reviewed by the Supreme Court in ITT, that the  examples the
legislative history provides of discussions ex- cluded from the Act
are largely limited to "passing references  to agency business at
social gatherings, casual background  conversations in offices and
corridors, banter at the golf  course, and breakfast or luncheon
discussions among mem- bers about the day's business." 699 F.2d at
1243 (footnotes  omitted).9 All of this, petitioner argues, supports
the notion  that Congress intended to except only "casual"
conversation  from the definition of "meeting"--not formal discussions
 about the agency's business, even if such discussions are not  likely


NRDC acknowledges that the Senate Report on the Sun- shine Act declares
that "... the agency must be careful not  to cross over the line and
engage in discussions which effec- tively predetermine official
actions." S. Rep. No. 94-354, at  19 (1975). But petitioner contends
that the Commission cites  this sentence out of context, as it comes
from a passage that  discusses the particular problems of three-member
agencies, 




__________

n 8 The Commission argues that "predecisional" is not necessarily 
synonymous with "predeterminative," the adjective it uses for draw-
ing the line between meetings and nonmeetings. According to the 
agency, under its definition " 'predecisional' matters fall on both 
sides of the Sunshine Act divide." NRC Br. at 38 n.18; see also 
Common Cause, 674 F.2d at 930 (" 'The meetings opened by [the  Act]
are not intended to be merely reruns staged for the public  after
agency members have discussed the issue in private and  predetermined
their views.' ") (quoting S. Rep. No. 94-354, at 18  (1975)) (emphasis
added). Common Cause did not address the  definition of "meeting"
under the Act, but rather whether any of the  Act's express exemptions
authorized the closure of budget discus- sions that were conceded to
be meetings. See 674 F.2d at 926.


9 See also S. Rep. No. 94-354, at 18 ("[B]rief references to  agency
business where the Commission members do not give seri- ous attention
to the matter do not constitute a meeting."); 122  Cong. Rec. 28,474
(Aug. 31, 1976) (remarks of Rep. Fascell) (stating  that the
definition of "meeting" "is intended to permit casual  discussions
between agency members that might invoke the bill's  requirements
under the less formal 'concern' standard").


in which any two members would necessarily constitute a  quorum.10
Indeed, the full sentence begins with the words,  "When two members
constitute a quorum," which fill the  space indicated by the ellipses
above. NRDC argues that  Congress did not intend the sentence to apply
outside the  three-member agency context, and that it therefore has no
 application to the five-member Nuclear Regulatory Commis- sion. But
see infra note 12.


In short, were we authorized to decide the validity of the 
Commission's definition of "meeting" de novo, NRDC's argu- ments would
give us some pause. NRDC contends that we  are in fact so authorized,
because courts do not accord  deference to an agency's statutory
interpretation where the  statute at issue, like the Sunshine Act,
"impose[s] general  obligations on [many] governmental agencies." NRDC
v.  Defense Nuclear Facilities Safety Bd., 969 F.2d 1248, 1250-51 
(D.C. Cir. 1992).11 But while we may not have to defer to the 




__________

n 10 The passage reads as follows:


In three-member agencies, two members will constitute a  quorum.... It
is not the intent of the bill to prevent any two  agency members,
regardless of agency size, from engaging in  informal background
discussions which clarify issues and ex- pose varying views. When two
members are less than a  quorum, such discussions would not in any
event come under  the section's open meeting requirements. When two
members  constitute a quorum, however, the agency must be careful not 
to cross over the line and engage in discussions which effective- ly
predetermine official actions.


S. Rep. No. 94-354, at 19.


11 See Reporters' Comm. v. Dep't of Justice, 816 F.2d 730, 734  (D.C.
Cir. 1987) (applying de novo review to agency interpretation  of
FOIA), rev'd on other grounds, 489 U.S. 749 (1989); see also  Salleh
v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996) (declining to 
accord deference where multiple agencies were granted authority to 
interpret same statute). The customary deference mandated by  Chevron
U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), would not apply  here in any
event because, as discussed below, the Supreme Court  has already
determined the meaning of the term "meeting" under  the Act. See
Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 


views of the Nuclear Regulatory Commission, the views of the  Supreme
Court are another matter. Because the Commis- sion's definition is
taken in haec verba from the Court's  unanimous opinion in ITT, we now
turn to an examination of  that case.


B


The question before the Court in ITT was whether the  Sunshine Act
applied to informal international conferences  attended by members of
the Federal Communications Com- mission (FCC). The conferences,
referred to as the Consul- tative Process, were intended to facilitate
joint planning of  telecommunications facilities. In the hope of
persuading  European nations to cooperate with its policy of
encouraging  competition in overseas telecommunications services, the 
FCC added the topic of new carriers and services to the  agenda. See
466 U.S. at 465. ITT, which opposed the entry  of new competitors,
contended that the Consultative Process  sessions constituted
"meetings" of the FCC and that the  Sunshine Act therefore required
that they be held in public.  See id. at 465-66. This circuit agreed.
See ITT, 699 F.2d at  1246-50. The Supreme Court, however, reversed,
holding  that "the participation by FCC members in these sessions 
constitutes neither a 'meeting' as defined by s 552b(a)(2) nor  a
meeting 'of the agency' as provided by s 552b(b)." ITT,  466 U.S. at


Writing for the Court, Justice Powell undertook an exami- nation of the
Sunshine Act's legislative history in order to  determine the
appropriate definition of the word "meeting."  As the Nuclear
Regulatory Commission does here, he empha- sized those portions of the
history suggesting an intent to  balance the interest in openness with
administrative concerns.  "[I]n drafting the Act's definition of
'meeting,' " the Court  said, Congress "recognized that the




__________

n 131 (1990) ("Once we have determined a statute's clear meaning, we 
adhere to that determination under the doctrine of stare decisis,  and
we judge an agency's later interpretation of the statute against  our
prior determination of the statute's meaning.").


cannot be conducted entirely in the public eye." 466 U.S. at  469.
Quoting the Senate Report, the Court continued:  " '[I]nformal
background discussions [that] clarify issues and  expose views' are a
necessary part of an agency's work." Id.  (quoting S. Rep. No. 94-354,
at 19). Because it believed that  applying the Act in such contexts
"would prevent such discus- sions and thereby impair normal agency
operations," the  Court concluded that the Act's definition did not
encompass  them. Id.


In a footnote, Justice Powell examined the evolution of the  statutory
language defining the term "meeting." That evolu- tion, he said,
"reflects the congressional intent precisely to  define the limited
scope of the statute's requirements." Id. at  470 n.7. In particular,
he noted that "the Senate substituted  the term 'deliberations' for
the previously proposed terms-- 'assembly or simultaneous
communication' or 'gathering'--in  order to 'exclude many discussions
which are informal in  nature.' S. Rep. No. 94-354, at 10." Id. (other
citations  omitted). Justice Powell also noted that although "earlier 
versions of the Act had applied to any agency discussions that 
'concer[n] the joint conduct or disposition of agency busi- ness,' "
the final version applied "only to deliberations that  'determine or
result in' the conduct of 'official agency busi- ness.' " Id.
(citations omitted). "The intent of the revision,"  he inferred,
"clearly was to permit preliminary discussion  among agency members."


Finally, the Court turned to the same passage of the  Senate Report
that we referred to at the end of Part II.A  above--the passage NRDC
contends applies only to three- member agencies. Relying on that
language, the Court con- cluded that the statutory definition of
"meeting" "contem- plates discussions that 'effectively predetermine
official ac- tions.' " Id. at 471 (quoting S. Rep. No. 94-354, at 19).
This  conclusion was stated without qualification--without any sug-
gestion that it was limited to three-member agencies. To the 
contrary, the Court went on to endorse a definition of "meet- ings"
recommended for all agencies in the Interpretive Guide  published by
the Office of the Chairman of the Administrative  Conference of the


Such discussions must be "sufficiently focused on dis- crete proposals
or issues as to cause or to be likely to  cause the individual
participating members to form rea- sonably firm positions regarding
matters pending or  likely to arise before the agency." R. Berg & S.
Klitz- man, An Interpretive Guide to the Government in the  Sunshine
Act 9 (1978).


Id.12 This is the definition that the Nuclear Regulatory  Commission
subsequently adopted as its own definition of  "meeting," and that
NRDC now challenges as unlawful.


Having settled upon a definition of "meeting," ITT then  applied it to
the Consultative Process sessions at issue in the  case. The Court
noted that the three FCC commissioners  who attended those sessions
constituted a quorum of the  FCC's Telecommunications Committee, to
which the Commis- sion had delegated the power to approve applications
for  common carrier certification. The Committee was therefore  a "
'subdivision ... authorized to act on behalf of the agen- cy' " with
respect to such applications, and hence was itself an  "agency" within
the Sunshine Act's definition. 466 U.S. at  470-71 (quoting 5 U.S.C. s
552b(a)(1)). But while the Court  found the Committee to be covered by
the Act, it concluded  that the members had not engaged in discussions
that effec- tively predetermined official actions. The Court noted
that  ITT had "alleged neither that the Committee formally acted  upon
applications for certification at the Consultative Process  sessions
nor that those sessions resulted in firm positions on 




__________

n 12 The Supreme Court noted that "the Office of the Chairman  of the
Administrative Conference of the United States prepared the 
Interpretive Guide at Congress' request, s 552b(g), and after exten-
sive consultation with the affected agencies." 466 U.S. at 471 n.10. 
The ACUS guide expressly rejected the suggestion that the quota- tion
from the Senate Report was limited to three-member agencies:  "[T]he
passage necessarily has broader application, since there is  nothing
in the statute which supports a special definition of 'meet- ing' for
agencies where two members make up a quorum." Inter- pretive Guide at
6. We agreed with that view in our opinion below  in ITT. See 699 F.2d
at 1243 n.163 (quoting Interpretive Guide at  6).


particular matters pending or likely to arise before the Com- mittee."
Id. at 471. Rather, the Court said, "the sessions  provided general
background information" and permitted the  commissioners to engage in
an exchange of views with their  foreign counterparts "by which
decisions already reached by  the Commission could be implemented."
Id. at 472.


Justice Powell did note that this court had reached a  contrary result.
He observed, however, that we had done so  not by finding that the
commissioners were deliberating  "upon matters within their formally
delegated authority"-- i.e., applications for certification--but
rather upon matters  within some "undisclosed authority, not formally
delegated, to  engage in discussions on behalf of the Commission." Id.
at  472. Such deliberations, the Supreme Court said, are not  covered
by the Sunshine Act at all. Again quoting the  definition of "agency"
rather than "meeting," the Court noted  that the only covered
deliberations are those by a " 'subdivi- sion ... authorized to act on
behalf of the agency.' " Id. at  472 (quoting, without citation, s
552b(a)(1)). The Act only  applies, the Court said, "where a
subdivision of the agency  deliberates upon matters that are within
that subdivision's  formally delegated authority to take official
action for the  agency." Id. Because "the Telecommunications Committee
 at the Consultative Process sessions did not consider applica- tions
for common carrier certification--its only formally dele- gated
authority-- ... the sessions were not 'meetings' within  the meaning


C


On its face, the Supreme Court's decision in ITT would  appear to end
this appeal, as the definition of "meeting"  adopted by the Nuclear
Regulatory Commission is the same  as that endorsed and applied by the
Court in that case.  NRDC contends, however, that for a number of
reasons ITT  is a much narrower opinion than the Commission believes
it  to be, and that the decision's definition of "meeting" is at best 
unauthoritative dictum--unnecessary to its holding and non- binding
upon this court.


NRDC argues, first, that ITT involved only the limited  question of
whether the Sunshine Act applies where fewer  than a quorum of the
agency's members attend international  conferences, and where those
members have not been "for- mally delegated authority to take official
action for the agen- cy." NRDC Br. at 25 (quoting ITT, 466 U.S. at
472). The  Supreme Court's "central rationale," petitioner contends,
was  that the Act "applies only where a subdivision of the agency 
deliberates upon matters that are within that subdivision's  formally
delegated authority." Id. (quoting ITT, 466 U.S. at  472-73). Because
the Telecommunications Committee lacked  delegated authority to
deliberate on the business discussed at  the conferences, the Act did
not apply. The Court's other  language, petitioner suggests, was


As our description of ITT makes clear, however, this was  not the
central--or even a sufficient--rationale for the  Court's decision.
Before considering the Committee's discus- sions on subjects as to
which it did not have delegated  authority, the Court first addressed
those as to which it did:  namely, applications for common carrier
certification. As to  any discussions on that subject, the Court
concluded that the  Committee had not participated in "meetings"
because--in  the words of the Interpretive Guide and now of the
Commis- sion's rule--such discussions were not "likely to cause the 
individual participating members to form reasonably firm  positions
regarding matters pending or likely to arise before  the agency." 466
U.S. at 471. It was only when the Court  went on to examine the
rationale of this court below that it  considered the Committee's
discussions on subjects as to  which it did not have delegated
authority, and found those  discussions to be outside the Act. Because
that finding could  not have sufficed to resolve whether discussions
as to which  the committee did have authority constituted meetings,
the  definition the Court relied upon to decide that question  cannot


NRDC also contends that in applying its definition of  "meeting," the
Court faced only the narrow question of  whether discussions on topics
that the Commission had al-


ready decided were included. Petitioner is correct that the 
discussions in ITT did involve an "exchange of views by which 
decisions already reached by the Commission could be imple- mented."
Id. at 472. But the Court only relied on that fact  to conclude that
the discussions did not "result[ ] in firm  positions on particular
matters pending or likely to arise  before the Committee"--i.e., that
the discussions necessarily  could not have "predetermined" official
decisions because the  decisions had already been made. Id. at 471.
The Court  gave no hint that its opinion was limited to this unique 
situation, and nothing in the Court's definition of "meeting,"  or in
the Interpretive Guide upon which it was based, sup- ports such a
reading. Although ITT may be factually distin- guished from the
instant case on this ground, we are not free  to turn every factual
distinction into a reason for ignoring the  Supreme Court's considered


NRDC does correctly point out that there was a second,  truly
independent ground for the Court's decision in ITT-- one to which we
have averred, but not yet described. In a  single paragraph at the end
of the opinion, the Court conclud- ed that not only were the
Consultative Process sessions not  "meetings" within the meaning of
the Sunshine Act, they  were also not meetings of an "agency." The
international  sessions were not meetings of an "agency," the Court
said,  because the FCC did not convene them and could not unilat-
erally control their procedures. Id. at 473.


There is no question that this rationale was an independent  basis for
the Supreme Court's decision: to come within the  Sunshine Act,
discussions must be both "meetings" and meet- ings of an "agency," and
the Court concluded that the Consul- tative Process sessions were
neither. See id. at 469. None- theless, "where there are two grounds,
upon either of which  an appellate court may rest its decision, and it
adopts both,  'the ruling on neither is obiter [dictum], but each is
the  judgment of the court, and of equal validity with the other.' " 
Dooling v. Overholser, 243 F.2d 825, 828 (D.C. Cir. 1957)  (quoting
United States v. Title Ins. & Trust Co., 265 U.S. 472,  486 (1924));
see Woods v. Interstate Realty Co., 337 U.S. 535, 


536 (1948) ("Where a decision rests on two or more grounds,  none can
be relegated to the category of obiter dictum.").  Moreover, even if
the Court's reliance on two independent  grounds rendered each dictum,
we would still be bound by its  interpretation of the term "meeting,"
since " '[c]arefully con- sidered language of the Supreme Court, even
if technically  dictum, generally must be treated as authoritative.' "
United  States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (quoting 
Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861  n.3 (1st
Cir. 1993)); see also Bangor Hydro-Elec. Co. v.  FERC, 78 F.3d 659,
662 (D.C. Cir. 1996). As our above  recitation of ITT makes clear, the
Supreme Court's language  was carefully considered, following as it
did the Court's  detailed review of the Act's legislative history and
its adoption  of the formulation in ACUS' own detailed guide.


Finally, NRDC contends that the Commission's definition  will undermine
the purposes of the Act. Petitioner argues  that the Commission's
definition should be vacated because it  eliminates an "objective"
rule and replaces it with a "vague,  wholly subjective standard" that,
if permitted to stand, "will  fatally undermine the Sunshine Act" and
"make abuse inevit- able." NRDC Br. at 11, 23. It is impossible to
conceive,  NRDC argues, that the kinds of discussions the Commission 
describes as non-meetings could occur without at least one 
commissioner formulating a reasonably firm position on a  matter
before the agency. Thus, petitioner urges, the Com- mission's rule "is
contrary to the Act." Id. at 24.


In many ways, NRDC's argument echoes points made by  this court in its
decision below in ITT. See 699 F.2d at 1244.  In its own decision,
however, the Supreme Court instructed  that the definition now adopted
by the Commission is the one  that Congress itself intended. Because
the Commission's  definition is therefore that of the Act itself, it
neither can be  contrary to the Act nor can it fatally undermine




__________

n 13 For like reasons, we reject NRDC's suggestion that we  vacate the
Commission's definition because "there is no prospect  that it will
solve the NRC's purported 'collegiality' deficit, which is  the
ostensible rationale for the rulemaking." NRDC Br. at 28.


III


In the alternative, NRDC argues that even if the Commis- sion's rule is
consistent with the statutory definition, we  should "find it illegal
for the NRC to implement the rule  without minimal procedural
safeguards," such as maintaining  complete records of all closed,
non-Sunshine Act discussions.  NRDC Br. at 13. Such procedures are
necessary, petitioner  maintains, because the Commission cannot be
trusted "to  determine unilaterally when they are starting to form
'rea- sonably firm positions'--and hence when public access is 
required." Id. Without a contemporaneous written record,  judicial
review of whether the agency is improperly closing  meetings will


NRDC does not argue that its proposed procedures are  required by the
Sunshine Act itself, and they plainly are not.  As the Senate Report
made clear: "Any meeting falling  outside the definition [in s
552b(a)] is not subject to any of  the other provisions of the bill."
S. Rep. No. 94-354, at 19.  This dooms petitioner's challenge because,
under the Su- preme Court's decision in Vermont Yankee, " 'absent
constitu- tional constraints or extremely compelling circumstances' 
courts are never free to impose on the NRC (or any other  agency) a
procedural requirement not provided for by Con- gress." Union of
Concerned Scientists v. NRC, 920 F.2d 50,  53 (D.C. Cir. 1990)
(quoting Vermont Yankee, 435 U.S. at  543); see also Envirocare of
Utah, Inc. v. NRC, 194 F.3d 72,  78 (D.C. Cir. 1999). The Commission
is, of course, at liberty  to adopt additional procedures in the
exercise of its discre- tion, see Vermont Yankee, 435 U.S. at 524, and
in this case it  has done so: The agency has undertaken to keep a
record of  the date, subject, and participants for any scheduled non-
Sunshine Act discussions among a quorum of commissioners  for an
initial six month period, and has stated that it will not  discontinue
this practice without advance notice to the public.  See 64 Fed. Reg.
at 39,395; see also 64 Fed. Reg. at 24,942.  We, however, are without
authority to impose such procedur- al requirements against the


In response to the obstacle posed by Vermont Yankee,  NRDC makes two
arguments based on analogies to litigation  under FOIA. First, it
notes that when an agency claims that  documents are not covered by
FOIA, a court may conduct an  in camera review to assess the validity
of the agency's claims.  See, e.g., Spirko v. United States Postal
Serv., 147 F.3d 992,  996 (D.C. Cir. 1998). The distinctions between
in camera  review and the procedures requested by NRDC, however, are 
plain. In camera review is expressly authorized by FOIA,  see 5 U.S.C.
s 552(a)(4)(B),14 as it is by the Sunshine Act, see  id. s 552b(h)(1).
Moreover, in camera review of an agency's  records does not require
the agency to add any administrative  procedures or create any new
documents; requiring the  Commission to keep minutes of its
non-Sunshine Act discus- sions would do both.


Second, NRDC points out that in FOIA litigation, this  circuit requires
an agency to provide a plaintiff with a  "Vaughn index," a description
of and detailed justification for  the non-disclosure of each withheld
document. See Vaughn v.  Rosen, 484 F.2d 820 (D.C. Cir. 1973); see
also Spirko, 147  F.3d at 997-98. But while this judicial rule does
require an  agency to create a document (the index) that would not 
otherwise exist, it is a rule that governs litigation in court and 
not proceedings before the agency. In particular, it is a rule  the
circuit imposed because FOIA itself places the burden on  the agency
to sustain the lawfulness of specific withholdings  in litigation. See
Vaughn, 484 F.2d at 825-26, 828; see also 5  U.S.C. s 552(a)(4)(B).
The Sunshine Act likewise imposes  the burden of justifying specific
closures on the agency, and  expressly authorizes the court to "take
such additional evi- dence as it deems necessary" to decide such




__________

n 14 The express authorization was not added to FOIA until 1974.  See
Pub. L. No. 93-502, s B(2), 88 Stat. 1561, 1561-62 (1974)  (codified
in relevant part at 5 U.S.C. s 552(a)(4)(B)). Previously,  trial
courts conducted such reviews on the rationale noted in the  text
below: i.e., in their role as triers of fact endeavoring to  determine
whether the government had met its burden of justifying  specific
nondisclosures. See Vaughn v. Rosen, 484 F.2d 820, 825  (D.C. Cir.


s 552b(h)(1). But this authorization, like the analogous one  in FOIA,
applies only to suits charging violations of the Act  with respect to
specific agency meetings15--not to petitions  like this one, which
challenge an agency's implementing regu- lations on their face.16
Neither Vaughn, nor the Sunshine  Act, authorizes this court to impose
additional procedures on  the conduct of administrative rather than
judicial proceed- ings.


IV


Because the Supreme Court's decision in ITT renders  petitioner's
challenge to the Commission's definition of "meet- ing" unavailing,
and because the Court's decision in Vermont  Yankee bars us from
imposing the additional procedural  requirements NRDC seeks, the
petition for review is denied.




__________

n 15 Section 552b(h)(1) grants district courts jurisdiction over 
actions "to enforce the requirements" of the Act. "Such actions  may
be brought by any person against an agency prior to, or within  sixty
days after, the meeting out of which the violation of this  section
arises...." 5 U.S.C. s 552b(h)(1). In such cases, the  "burden is on
the defendant to sustain his action," and the court  may make in
camera examinations "and may take such additional  evidence as it
deems necessary." Id.


16 See 5 U.S.C. s 552b(g). This section authorizes any person  to
"bring a proceeding in the United States Court of Appeals for  the
District of Columbia to set aside agency regulations" promulgat- ed to
implement the requirements of the Act.