concurring opinion of Judge Leventhal
How later courts described this case
- concurring opinion of Judge Leventhal
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge,
concurring:
I fully concur in Judge TAMM’s opinion for the court.
I take advantage of the latitude of a concurring opinion to say what may be inappropriate for a mandate of the court. There is considerable doubt, to say the least, whether and under what circumstances a court may direct an agency to proceed by way of rulemaking rather than by establishing standards in a context of case-by-case decisionmaking. 1 But a concurring judge may at least observe that if the scope of “periodical publications” is handled through a rulemaking procedure, it is less likely to run into the danger of lack of adequate explanation for the administrative determination. Moreover, rulemaking assures that any modification in position will represent a generalized approach to a general problem, avoiding the uneasiness that results from the greater possibility of discrimination in a case-by-case approach. 2
In a rulemaking proceeding; the Postal Service would be free to propose a rule defining periodical in terms of the concept of variety of articles or topics, and to consider that proposal in the light of comments. Such a proposal would use a definition that links periodical with newspaper in terms of the kind of information published; this might be predicated on a judgment that such reading material is more worthy *483 of favorable rate consideration. There may be better reasons. In any event, there would be opportunity for comment by the industries that have established positions in reliance on the old rule.
Financial considerations are not irrelevant for the Postal Service, given its overall charge to run the postal service more like a business than heretofore. Those running a business often reconsider price differentials, and not infrequently undertake to revise differentials that have slipped into its schedules, through error, accident or reasons that were good in the past. The course of revision may prune away advantages enjoyed by certain customers that cannot be justified by reasons having current vitality. The Postal Service is not in exactly the same position as a private business because to some extent it must follow procedures and meet standards applicable to government agencies. But the law strives for an accommodation that will provide the best and not the worst of both worlds.
. See SEC v. Chenery Corp., 332 U.S. 194, 203 , 67 S.Ct. 1575 , 91 L.Ed. 1995 (1947). In NLRB v. Wyman-Gordon Co., 394 U.S. 759 , 89 S.Ct. 1426 , 22 L.Ed.2d 709 (1969), six justices disapproved of the issuance of legislative-type rules of general application in the course of adjudicatory proceedings.
. City of Chicago v. FPC, 128 U.S.App.D.C. 107, 122-23 , 385 F.2d 629 , 644-45 (1967), cert. denied, 390 U.S. 945 , 88 S.Ct. 1028 , 19 L.Ed.2d 1133 (1968).