The opinion
LEVENTHAL, Circuit Judge,
concurring:
I concur fully in Chief Judge Bazelon’s majority opinion. I write separately to record another strand of doctrine that supports the court’s judgment. In substantial if elusive measure the District Court projected the defense contention that the FTC is collaterally estopped from investigating certain matters because of a prior determination by the FPC in the course of ratemaking. In my view the whole doctrine of preclusive effect, whether cast as collateral estoppel or res judicata, is inapplicable to the conclusion of an agency exercising such a legislative function as ratemaking, Arizona Grocery Co. v. Atchison, Top. and Santa Fe Ry. Co., 284 U.S. 370, 389 , 52 S.Ct. 183 , 76 L.Ed. 348 (1932); 2 K. Davis, Administrative Law Treatise, § 18.08 at 597 (1958). The doctrines of res judicata and collateral estoppel preclude litigation of an issue even though a “wrong” result was reached the first time. But the Federal Power Commission itself would not have been precluded from changing its mind concerning reserves if it had started a new ratemaking investigation, and would not be precluded from starting a new investigation to consider whether it should change its mind or method.
In recent years, I am aware, notions of res judicata and collateral estoppel have been extended as to administrative proceedings. See Cartier v. Secretary of State, 165 U.S.App.D.C. 130 , 135 n. 3, 506 F.2d 191 , 196 n. 3, cert. denied, 421 U.S. 947 , 95 S.Ct. 1677 , 44 L.Ed.2d 101 (1974). Authoritative doctrine, however, still retains the concept that such preclusive effect is to be accorded determinations “in a judicial capacity.” United States v. Utah Construction Co., 384 U.S. 394, 422 , 86 S.Ct. 1545 , 16 L.Ed.2d 642 (1966). The need for finality with respect to appraisal of an event that has passed outweighs any desire the agency may have to change its policies for future rulings.
Different considerations emerge, and a different balance is struck, when an agency exercises an essentially legislative function like ratemaking, especially the kind of broad area ratemaking lately conducted by the Federal Power Commission. The agency must remain free “to adapt [its] rules and policies to the demands of changing circumstances.” Permian Basin Area Rate Cases, 390 U.S. 747, 784 , 88 S.Ct. 1344, 1369 , *422 20 L.Ed.2d 312 (1968). Changes may occur not only in objective circumstances but in the way the agency perceives the critical facts, whether, say, service life of equipment, or calculations of gas reserves. With such legislative activity focused primarily prospectively, the need for flexibility outweighs any interest in repose. Thus, the Supreme Court has repeatedly held that an individualized ratemaking is not res judicata. 1 The pertinent considerations are multiplied when what is involved is the kind of broad ratemaking now conducted by the FPC, an approach approved in Permian Basin, and now used with rulemaking procedures. 2
Of course, the Rule of Administrative Law restrains agencies from “arbitrarily” or “capriciously” reopening earlier determinations and reaching new results. An agency changing its course must be able to explain its departure from prior policy. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394 , 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923 , 91 S.Ct. 2229 , 29 L.Ed.2d 701 (1971). Some comparable doctrine may be fashioned to prevent arbitrariness even when a second agency is involved. Whether a determination has been arbitrary is an entirely different question, however, from whether inquiry has been precluded by a prior determination that is binding. The FTC, in the exercise of its functions and responsibilities, has only begun to seek out the relevant facts. One cannot possibly say that it is acting unreasonably in beginning its examination. The opinion of Chief Judge Bazelon effectively establishes that conclusion.
. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 , 29 S.Ct. 67 , 53 L.Ed. 150 (1908); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 445 , 50 S.Ct. 220 , 74 L.Ed. 524 (1930); State Corporation Commission v. Wichita Gas Co., 290 U.S. 561, 569 , 54 S.Ct. 321 , 78 L.Ed. 500 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 64 , 56 S.Ct. 720 , 80 L.Ed. 1033 (1936).
. See Shell Oil Company v. FPC, 520 F.2d 1061 (5th Cir. 1975).
1. Outline of this opinion:
OUTLINE
Page
I.THE FACTS, THE ISSUES, AND THE ARGUMENTS ................................................................. 3
II.THE FEDERAL POWER COMMISSION INVESTIGATIONS .................................................. 13
OUTLINE
Page
III. COURTENFORCEMENT OF ADMINISTRA-
TIVE SUBPOENAS .............................. 20
IV. RELEVANCE....................................................... 25
A. Purpose of Inquiry, Test of Relevancy, and
Standard of Judicial Review.................. 25
B. Raw Field Data, Bid Calculation Data, and
Bid Calculation Files................................ 37
C. Summary on the Relevance Issue ............... 53
V. BURDENSOMENESS ............................ 58
VI. COLLATERAL ESTOPPEL ...................... 66
A. The Appropriateness of Considering the Issue
of Collateral Estoppel in this Subpoena Enforcement Proceeding............................ 72
B. Giving Collateral Estoppel Effect to a Find-
ing of Fact Made in the Context of a FPC Ratemaking Proceeding .................... 81
C. Giving Collateral Estoppel Effect to a Finding of Fact Made for Ratemaking Purposes . 85
VII. CONFIDENTIALITY AND PRODUCTION AT
SITUS ...................................................... 90
VIII. THE SUPERIOR ORDER.................................... 94
IX. CONCLUSION ....................................................... 95