Association of National Advertisers, Inc. v. Federal Trade Commission

MacKINNON, Circuit Judge

(dissenting in part and concurring in part).

I concur in the Court’s decision insofar as it holds that (1) the Appellee, Association of National Advertisers (hereafter Association) is not required "to exhaust the rule-making process before filing a court challenge to disqualify one of the Commissioners for bias in such rulemaking proceeding; and (2) that affected parties are entitled to have substantive rules of the Federal Trade Commission proscribing specific unfair or deceptive acts or practices promulgated by fair decisionmakers. However, I cannot agree with the holding of the majority that a member of the Commission engaged in the rulemaking proceeding can be disqualified only upon a showing by clear and convincing evidence that he has an unalterably closed mind on matters critical to the disposition of the rulemaking. Also, based on the analysis hereinafter detailed, I would hold that the Chairman has disqualified himself in this rulemaking proceeding even if the majority’s “unalterably closed mind” standard is applied.

In my opinion the “unalterably closed mind”, where it exists, in many cases is practically impossible to prove, imposes too high a barrier to the public’s obtaining fair decisionmakers and is a higher standard than the Supreme Court has applied in its recent decisions. I would require any Federal Trade Commissioner to recuse himself, or failing that to be disqualified, upon a showing by a preponderance of the evidence that he could not participate fairly in the formulation of the rule because of substan *1182 tial bias or prejudgment with respect to any critical fact that must be resolved in such formulation.

Also, in my view the majority opinion places too much reliance on the strict rule-making/adjudication dichotomy, applied in earlier cases under the Administrative Procedure Act. The Magnuson-Moss Act creates a rulemaking procedure that combines elements of both rulemaking and adjudication, as those functions are exercised under the Administrative Procedure Act, and this blending of the two procedures makes it impossible to look at Magnuson-Moss rule-making as anything but a combination of the two.

I. RULEMAKING BEFORE AND AFTER THE MAGNUSON-MOSS ACT.

Congress enacted the Magnuson-Moss Act on January 4, 1975. These amendments were part of the Federal Trade Commission Improvements Act (also known as the Magnuson-Moss Act, hereafter the Act) in which Congress limited the prior wide open authority of the Federal Trade Commission to make “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce . .” Section 18(1)(B). (Emphasis added). The Act blends some of the administrative procedures — rulemaking and adjudication — that had theretofore been rigidly separated in the Administrative Procedure Act. 88 Stat. 2193 , 15 U.S.C. § 57a.

Prior to the Magnuson-Moss Act the Federal Trade Commission possessed great latitude in exercising its informal rulemaking authority. As was pointed out in the Senate debates, the amendment of its rulemaking powers by the Federal Trade Commission Improvement Act, as embodied in S. 356 of the 93rd Congress, 2nd Session (1974), was considered necessary because the Supreme Court “in a recent ruling had given the Federal Trade Commission very broad rulemaking power that was subject only to the due process requirement [and thereafter the House side in its consideration of S. 356 worked out] . . . considerable procedural safeguards relating to the rulemaking power of the Federal Trade Commission.” (Remarks of Senator Taft, 120 Cong.Rec. 40723, December 18, 1974).

The House Committee Report on the bill also complained of the “inadequate” proceedings that the Federal Trade Commission followed in its rulemaking.

The only procedural requirements that the FTC is required to observe are to afford notice of the proposed rulemaking, including a statement of its legal basis and the substance of the proposed rule or a description of the subjects and issues involved, and opportunity for comment in accordance with Section 553 of Title 5, United States Code. On judicial review such rules may only be set aside if they are found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; contrary to Constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedures required by law.

Your committee believes these rule-making procedures and the scope of judicial review are inadequate for proceedings in which the integrity of the proposed rule may rest on the resolution of issues of material fact. We believe that the rulemaking procedures and judicial review provisions of section 202 (described below) afford the safeguards which are needed.

H.Rep.No. 93-1107, June 13, 1974, 93rd Cong., 2nd Sess., 33 U.S.Code Cong. & Admin.News 1974, pp. 7702, 7715. To provide the “needed . . . safeguards” the House passed its bill that with some modifications made by the Senate, resulted in the Federal Trade Commission Improvements Act of 1974, supra. It is obvious from the foregoing that one of the principle purposes of the amendments was to improve the “integrity [of Commission rulemaking that rested] ... on the resolution of issues of material fact.” This is an obvious reference to the adjudicative function involved in the promulgation of rules on un *1183 fair and deceptive practices by the Commission.

In adopting the Magnuson-Moss (M-M) Amendments Congress authorized the Commission to promulgate rules that defined specific “unfair or deceptive acts or practices in or affecting Commerce” and tightened up the procedures that the Commission was required to follow in exercising this very considerable authority. See section 18(a)(1)(B). The M-M Amendments provided for (1) advance notice of the proposed rule and the reason therefor, (2) an informal hearing with oral or written submissions, (3) cross-examination on disputed issues, (4) right to rebuttal, (5) verbatim transcripts of all oral presentation to be made available to the public; and that (6) the rule be supported by the whole of the rulemaking record, and (7) the basis and purpose of the rule- be set forth in a statement. The Commission was also required to take into account (8) the economic effect of any such rule and (9) the effect on small business and consumers. (10) The promulgation of the rule was made subject to judicial review by the Courts under 5 U.S.C. § 706 (2) and (11) could be declared unlawful if the Court found it was not “supported by substantial evidence in the rulemaking record . . . taken as a whole.” 1 (12) The subsequent amendment or repeal of rules was also made subject to judicial review in the same manner as the original adoption of such rules. In addition (13) the court was required to find the rule to be unlawful if the Commission, by the denial of cross examination or rebuttal submissions, had precluded disclosure of material facts which was necessary for fair determination by the Commission of the Rulemaking proceeding taken as a whole. 2

Senator Taft commented on the effect of these provisions of the Bill as follows:

I would particularly like to point out that the provisions relating to rulemaking, power are very broad. When we are dealing with the FTC, its authorizations, and areas of procedure we are not dealing with what we usually consider to be a rulemaking power of a Government agency-

We are dealing with an agency where, under the antitrust laws, rules are often made that relate to very specific cases, particularly specific industries, and prescribe certain requirements relating to those industries. They perhaps even limit the type of material that can be produced, the type of material that can be sold and how it can be sold.

In other words, the actual rights of individuals and business concerns are involved here.

*1184 So we are really dealing not merely with the rulemaking proceedings, but in many cases, for all practical purposes, with an adversary proceeding.

120 Cong.Rec. 40723-40724, December 18, 1974. (Emphasis added).

It is thus apparent that the promulgation of unfair or deceptive practices under the Magnuson-Moss Act differs greatly from mere informal rulemaking under the tight compartments first established by the Administrative Procedure Act in 1946 ( 60 Stat. 238 -239).

The majority’s opinion criticizes the characterization by the District Court of Federal Trade Commission rulemaking under the Magnuson-Moss Act as “hybrid” or quasi-adjudicative on grounds that it “ignores the clear scheme of the APA”. Of course such Magnuson-Moss Act rulemaking ignores the clear scheme of the APA. That was one of the stated and obvious purposes of the Act — to provide greater protection to the public that would be affected by the FTC rules, by providing some reasonable safeguards when the Commission promulgated rules prescribing specific “unfair or deceptive acts or practices.” 3 Rulemaking under the Administrative Procedure Act prior to the Magnuson-Moss Act was ordinarily cast either in an adjudicatory or rulemaking context but the Magnuson-Moss Act changed all of this for rulemaking of unfair or deceptive acts or practices by the Federal Trade Commission. 4 See Majority Opinion p. — of 201 U.S.App.D.C., p. 1159 of 627 F.2d.

The Court’s opinion is couched too much in a rulemaking/adjudication dichotomy and tries to pigeonhole Commission action into one or the other. For instance, it states that the “presence of procedures not mandated by Section 553 . . . does not . . . convert rulemaking into quasi-adjudication . . . .” That statement however blinks at the reality that exists in this instance of rulemaking. It should also be noted that Professor Davis, in setting forth his suggested “Official Notice” for rulemaking proceedings, defines “adjudicative facts [as] facts relating to the parties to the case . . . when a rule is formulated in an on-the-record proceeding.” 5 The Commission’s action in promulgating the instant rules is required to be supported by substantial evidence in the rulemaking record as a whole. However, regardless of labels, the procedures required by M-M in this case certainly converts the Commission’s action into something that is not wholly covered, by Section 553 and that is not wholly quasi-adjudication. The Act creates a new form of Commission action that is outside the informal rulemaking category as previously covered solely by section 553, by the addition of elements that definitely involve adjudication.

II. ADJUDICATIVE CHARACTER OF MAGNUSON-MOSS ACT PROCEEDINGS.

Professor Davis has pointed out that some rulemaking may involve the determination of adjudicative facts:

The first step is probably to recognize that the reality [of rulemaking procedures] is a spectrum rather than a dichotomy; some facts are clearly adjudicative, some are clearly legislative, some are probably one or probably the other but not clearly, and some seem impossible to classify. So the adjudicative or legislative character of facts is a variable, and other variables must also be taken into account — the degree of doubt or certainty *1185 about the facts, and the degree of their bearing upon the controversy. When facts are clearly adjudicative, disputed, and critical, a party should be entitled to all the procedural protections of a trial. When facts are legislative, reasonably clear, and peripheral to the controversy, the tribunal may assume them without even mentioning them. The problem cases are those in which the three variables pull against each other. 6 (Emphasis added).

These observations clearly describe many of the aspects of the Magnuson-Moss Rule-making and in the last sentences reach the facts of this case.

The adjudicative character of some of the proceedings under the Magnuson-Moss Act is also reflected in the April, 1979 recommendation made by the Administrative Conference with respect to the trade regulation rulemaking project of the Federal Trade Commission. Therein the Conference stated:

As a general practice the Commission, after the close of the first period of submission of written comments, should conduct a legislative-type hearing, following which it should determine whether there are “disputed issues of material fact it is necessary to resolve”. If there are determined to be such issues, they should be designated with specificity, and a quasi-ad judicative hearing, in accordance with section 18(c) of the Federal Trade Commission Act, should be held on them.

April, 1979 Recommendations of the Administrative Conference, paragraph 12. (emphasis added)

One should not be blind to the fundamental changes made in Commission procedures for regulating unfair and deceptive acts and practices by the Magnuson-Moss Act. The Separate Views on Title II of the Act by 12 members of the House Commerce Committee that strongly supported the new rulemaking procedures of the MagnusonMoss Bill, also indicated that Congress knew that it was making substantial changes in the informal rulemaking proceedings provided for in section 553 of the Administrative Procedure Act. Cf., Commission’s pre-1975 Rules and Procedures, Section 1.16 to (c), (d). The statement of the 12 members included the following:

When a statute provides authority to a Federal administrative agency to issue rules of general applicability but is silent on the procedures which the agency is required to follow in issuing such rules, only the procedural requirements of Section 553 of Title 5, United States Code apply to any rulemaking proceeding undertaken pursuant to that authority. This means that the agency is required to do no more than to provide notice of the proposed rulemaking in the Federal Register and allow interested persons the opportunity to submit written comments on the proposal. There is no right to appear in person before the agency, to cross-examine, to submit rebuttal evidence or to insist that the agency decide solely on the basis of information available at the public hearing. Also, the scope of judicial review under such procedures is very narrow. On judicial review, such rules could be set aside if they were found to be arbitrary, capricious or an abuse of discretion, unconstitutional, in excess of statutory authority or without observance of procedures required by law. (H.R.Rep. No. 93-1107, 93rd Cong.2d Sess. (1974) at 85, U.S.Code Cong. & Admin.News 1974, pp. 7702, 7751.) (Emphasis supplied.)

These criticisms of informal rulemaking under Section 553 were what the 12 members considered they were changing for the making of unfair and deceptive acts and practices rules by the Federal Trade Commission under the Magnuson-Moss Act.

III. DOES THE SUBSTANTIAL EVIDENCE STANDARD OF THE MAGNUSON-MOSS ACT APPLY ONLY TO DISPUTED ISSUES OF MATERIAL FACT OR DOES IT ALSO APPLY TO FINDINGS AND DETERMINATIONS OF LEGISLATIVE FACT?

The substantial evidence scope of review of a Magnuson-Moss proceeding further il *1186 lustrates its adjudicatory nature. However, the Commission contends that “the substantial evidence” standard for judicial review was intended only to apply to “the findings and conclusions of the Commission with regard to disputed issues of material fact on which the rule is based” and “would not apply to findings or determinations of legislative fact”. 7 The Conference Report does make this statement but the plain language of Section 18(e)(3)(A) provides that the Court shall set aside the rule if:

(A) the court finds that the Commission’s action [promulgating the rule ] is not supported by substantial evidence in the rulemaking record . taken as a whole.

15 U.S.C. § 57 (e)(3)(A).

The Commission’s contention in this respect, which seeks to answer attacks upon the “rule” that the Commission promulgated, in addition to being contrary to the language of the statute, is also contrary to the statements of Senator Moss and Representative Broyhill and others made on the floor of Congress during passage of the Magnuson-Moss Act. The reason for such amendments to the Commission Act was explained by Senator Moss as follows:

The concurrent resolution corrects a technical deficiency in the conference report whereby the words “with regard to disputed issues of material fact on which the rule was based” modified both the words “findings” and “conclusions” whereas they pertained only to findings. In order to clarify the situation, the word “action” was chosen to indicate the intention to have factual determinations reviewed on the basis of substantial evidence. Conclusions arising from these factual determinations would be reviewed as is normal: Do the facts supported by substantial evidence support the conclusions on the basis of logic. (120 Cong. Rec. 40725 (Dec. 18, 1974) (remarks of Sen. Moss) (emphasis added); accord, id. at 40724 (remarks of Sen. Taft).)

Similarly as Representative Broyhill observed:

[I]t is necessary to clarify the language in the conference report, not because of any disagreement among the conferees but because of some legal interpretation of the language which was included in the conference report. We want to make crystal clear that any rules issued by the commission must be based upon the substantial evidence that is developed in consideration of the rule. That is the purpose of the amendment — to clarify the provision in the Judicial Review section. (120 Cong.Rec. 41408 (Dec. 19, 1974) (remarks of Rep. Broyhill) (Emphasis added).)

Senator Taft remarked:

[A]s I understand it . [the resolution] will have the effect of amending that provision to read that the clerk [sic] [court] finds that the Commission action is not supported by substantial evidence in the rulemaking record taken as a whole. (120 Cong.Rec. 40724 (Dec. 18, 1974) (remarks of Sen. Taft).)

This legislative history indicates, and Representative Broyhill’s statement is the clearest, that “substantial evidence” in the rulemaking record as a whole is required to support any rule proscribing any specific unfair or deceptive act or practice promulgated by the Commission. To the extent that the statement by Senator Moss expressed a different formulation, it only varied slightly to require that any rule that the Commission adopted must follow logically from findings of fact supported by substantial evidence on the record as a whole. If there is any material difference in the actual application of these two analyses, it is relatively immaterial in determining the Chairman’s disqualification in this case, be *1187 cause both point to the controlling effect that results from decisions of the Commission on factual findings and conclusions therefrom and these are the precise areas where the Chairman by his prior statements and conduct has indicated his bias and prejudgment.

To all of these comments with respect to Section 18 rulemaking should be added an extract from a recent article by Professor Antonin Scalia, the former Chairman of the Administrative Conference of the United States. In the article, Professor Scalia decries the “balkanization of administrative law” and blames (besides this court) Congress’ increasing interest in promulgating unique procedural requirements with each new statute. Scalia would opt instead for “standardizing mandatory administrative procedures within a manageable number of well-known and well-litigated forms,” and describes how Congress’ disinclination to do so in the Magnuson-Moss Act necessarily produced the result reached by Judge Gesell in the court below.

That such a consummation is devoutly to be desired is exemplified — indeed, almost caricatured — by the recent case of Association of Nat’l Advertisers, Inc. v. FTC [ 460 F.Supp. 996 (D.D.C.1978)], involving a petition to disqualify the Chairman of the FTC for prejudice in a rulemaking proceeding conducted pursuant to the peculiar procedures of the FTC Improvement Act of 1975 . . . Chairman Pertschuk had forcefully expressed his firm views concerning the subject of the proceeding — FTC regulation of children’s advertising. Such expression of prejudice would clearly have been disqualifying in formal adjudication and almost certainly in formal rulemaking. It has never been thought to be disqualifying in informal rulemaking, though it is admittedly difficult to recall so vigorous an expression of prejudgement in a pending proceeding. But the FTC Improvement Act had given what it called informal rulemaking so many of the characteristics of formal adjudication (or formal rule-making) that it was difficult to decide which standard of conduct should govern. As Judge Gesell noted, it was “in fact a hybrid proceeding, unique to the Federal Trade Commission.” [Id. at 997.] The court’s disqualification of Chairman Pertschuk was based on constitutional grounds — to which the foregoing considerations should be irrelevant. I think, however, that the issue should have turned upon statutory intent with respect to a procedural area (expression of bias or prejudice) not specifically addressed by the APA. On that point, the nature of the statutorily prescribed procedures would be crucial, and infinite variation would make predictability most difficult. (Scalia, Vermont Yankee: The APA, the D.C. Circuit and the Supreme Court, 1978 Sup.Ct.Rev. 345, 408-409 n. 255.) (Emphasis added).

Thus, Professor Scalia agrees that the result reached by Judge Gesell, with which I agree, is dictated by the unusual procedural model of the Magnuson-Moss Act. His. italicized characterization of the “[forceful and] vigorous . . . expression of prejudgment [and] . . . prejudice” is a sound evaluation of the prejudicial character of the Chairman’s remarks and conduct by an impartial and learned observer. It is also my view that Chairman Pertschuk’s disqualification can be supported on statutory grounds, i. e., the statute requires action to be determined by the Commission on the record evidence as a whole; such determination necessarily implies a fair determination, otherwise the presentation of evidence is a hollow formality.

IV. THE MAJORITY’S DESCRIPTION OF THE CHAIRMAN’S REMARKS & CONDUCT.

The majority opinion holds, and I agree with such holding, that “The appellees have a right to a fair and open proceeding; that right includes, access to an impartial decisionmaker.” Maj. op. p. - of 201 U.S.App.D.C., p. 1174 of 627 F.2d. However, the majority considers that one qualifies as an “impartial decisionmaker” unless he is shown by clear and convincing evidence to have an unalterably closed mind on matters *1188 critical to the children’s television proceeding. This rule would establish a legal principle that evidence of bias and prejudice would not be disqualifying unless it could surmount a fence that is horse high, pig tight and bull strong. In my view that is too much protection for a biased decision-maker. In a great many instances it would deprive the public of decisionmakers that are actually “impartial”.

The current case is a good example and also illustrates how strong evidence of prejudgment can be played down to almost sanitize the attitudes expressed. Such softening of the Chairman’s remarks is illustrated by the following excerpts from the majority opinion:

Chairman Pertschuk’s remarks, considered as a whole represent discussion, and perhaps advocacy, of the legal theory that might support exercise of the Commission’s jurisdiction over children’s advertising. The mere discussion of policy or advocacy on a legal question, however, is not sufficient to disqualify an administrator. To present legal and policy arguments, Pertschuk not unnaturally employed the factual assumptions that underlie the rationale for Commission action. The simple fact that the Chairman explored issues based on legal and factual assumptions, however, did not necessarily bind him to them forever. Rather, he remained free, both in theory and in reality, to change his mind upon consideration of the presentations made by those who would be affected.

Maj. op. pp. --- of 201 U.S.App. D.C., pp. 1171-1172 of 627 F.2d. [Footnote omitted].

The opinion then indulges in a more particularized discussion of some of the specific comments that the Chairman made and that are not denied on this record, and further concludes:

The materials [Pertschuk’s comments], merely demonstrate that Pertschuk discussed a legal theory by which the Commission could adopt a rule, if circumstances warranted. The statements do not demonstrate that Chairman Pertschuk is unwilling or unable to consider rationally argument that a final rule is unnecessary because children are either unharmed by sugared products or are able to understand advertising. The appellees have failed to make a clear and convincing showing that Chairman Pertschuk has an unalterably closed mind on matters critical to the children’s television proceeding.

Maj. op. pp. --- of 201 U.S.App.D.C., pp. 1173-1174 of 627 F.2d.

This bland characterization of the opinions and attitudes expressed in public and private by Chairman Pertschuk completely fails to portray the “prejudgment” and bias that is indicated by his actual remarks and conduct. It nowhere expresses the predisposition that his remarks actually revealed and thus fails accurately to evaluate the Chairman’s state of mind on children’s TV advertising. And this is not all; the majority raises even further obstacles to disqualifying a Commissioner on the ground of actual bias by asserting:

We are concerned that implementation of the Cinderella standard in the rulemaking context would plunge courts into the midst of political battles concerning the proper formulation of administrative policy. We serve as guarantors of statutory and constitutional rights, but not as arbiters of the political process. Accordingly, we will not order the disqualification of a rulemaker absent the most compelling proof that he is unable to carry out his duties in a constitutionally permissible manner.

Maj. op. p. -- of 201 U.S.App.D.C., p. 1174 of 627 F.2d.

No mention is made of the necessity that the rulemaker be a fair decisionmaker as implicitly required by the statute. There is no support for this attempt to inject “political” fears as a factor to negate disqualification. Of course, some can find politics in most everything done by government, but there is no showing here that it would be an improper interference with the “political process” to apply the proper rule of disqualification, any more than it was when this *1189 court found Chairman Dixon of the Federal Trade Commission to be disqualified to participate in a particular FTC adjudicative matter. Cinderella Career and Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152 , 425 F.2d 583 (D.C. Cir. 1970). While it may have been Congress’ design to place Commissioners in the dual roles of policymaker and decisionmaker, it was also Congress’ intent that parties to Magnuson-Moss Act rulemaking have their evidence considered fairly and impartially. Hence, in disqualifying a decisionmaker who cannot decide with the requisite degree of fairness and impartiality, we would protect the political process, rather than interfere with it.

In addition to understating the Chairman’s remarks, the majority does not attempt to actually portray them, or to apply them in all their verbiage, against the standard for disqualification that the majority establishes. This needs to be done.

I begin such analysis with the definite opinions expressed by the Chairman. On TV’s Today Show on October 31, 1977 he admitted that “the implicit indication of [his] personal opinions in these replies are [sic] self-evident.” By this statement he recognized that it is the implicit indications of his personal opinions that should be evaluated. He next stated: “I have some serious doubt as to whether any television advertising should be directed at a 3 or 4 or 5 year old, a pre-schooler ... we have never treated children as commercial objects in our society.” This expresses a very firm opinion that, by its advertising, television was treating such children as “commercial objects” — presumably trigger words in his vocabulary.

Next, in response to the question whether he would like to see the Federal Trade Commission ban children’s advertising altogether he replied “not necessarily. But we’ve not excluded the possibility of bans on certain advertising of certain products to children.” In the next paragraph, in an apparent attempt to save the Commission from the taint of any bias that his personal statements indicate, he attempts to spread the responsibility by stating that there are 4 other Commissioners and consequently his views do not bind the others. However, a Commission is prohibited from acting with even one biased Commissioner. See American Cyanamid Company v. FTC, 363 F.2d 757 , 767 (6th Cir. 1966); Berkshire Employees Association of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3rd Cir. 1941). Then the Chairman stated that the Commission has “not as a body yet approached the question of a remedy for the evils we see in children’s advertising.” So the Commission (we) had already determined that the advertising was “evil”. Apparently the only issue was what remedy to apply.

Next, in his speech to the Action for Children’s Television Research Conference at Boston on November 8,1977, he referred to the “moral myopia of children’s television advertising.” (Emphasis added). He also stated that “advertisers seize on the child’s trust and exploit it as a weakness for their gain.” (Emphasis added). These remarks evidence definite conclusions, definite opinions and a biased slant. Later he stated: “using sophistication techniques like fantasy and animation, they [TV advertisers] manipulate children’s attitudes”. (Emphasis added). This also indicates a prejudgment of the purpose and intent of TV advertisers.

He then argued:

Why isn’t [the] . . principle [that those responsible for children’s well being are entitled to the support of laws designed to aid discharge of that responsibility] applicable to television advertising directed at young children? Why shouldn’t established legal precedents embodying this public policy be applied to protect children from this form of exploitation? In short, why isn’t such advertising unfair within the meaning of the Federal Trade Commission Act and, hence, unlawful? (Emphasis added)

Can any reasonable person contend that such remarks do not indicate that he has prejudged TV Advertising and decided that it exploits children?

He, next delves into the millions of family relationships and indicates that he has decided that Commission action is required because he finds:

*1190 [children] cannot protect themselves against adults [the advertisers] who exploit their present-mindedness . (and exploit their “credulousness”).

He has already concluded that children under five in the United States are not sufficiently under parental control to prevent them from begin victimized by TV advertising. The foregoing remarks indicate that Chairman Pertschuk has already decided that children are being subject to “exploitation” by children’s advertising. That may be so, and the evidence might prove it, but it is apparent that he so decided before any evidence was introduced.

Finally he asserts:

Shouldn’t society apply the law’s strictures against commercial exploitation of children, and the law’s solicitude for the health of children to ads that threaten to cause imminent harm — harm which ranges from increasing tooth decay and malnutrition to injecting unconscionable stress into the parent-child relationship?

This indicates the Chairman has already formed an opinion that television advertising is interfering with the relationship between parents and their children that only intervention by the Federal Trade Commission can correct.

Also, his recounting that he has talked about the “unfairness of advertising aimed at children” indicates he has concluded that such advertising is “unfair”. With such conclusion already reached the only problem is how to prove it and what to do about it. He thus indicated he is not seeking to find what the evidence proves but what evidence can be found to prove his prejudgment. Whether it is “unfair” or not is the precise issue that was supposed to be the subject of the hearings.

In addition, he stated that “only a ban on the advertising of these products on programs directed towards the young child can remedy their inherent defect, although we must explore all remedial approaches to the problem.” (Emphasis added). In other words, he has concluded that children’s advertising has “inherent defect[s]”, which he does not identify, “that only a ban” can correct the situation, and that he would explore other approaches.

■ In his final statement to the Conference he stated:

If the Commission is to reach sound and reasoned judgments, it must also hear from the parents, the teachers, the pediatricians, the dentists, those health and education specialists on whom we rely for the advocacy of our children’s best interest. We must be rigorous and open-minded in our analysis of both law and fact. At stake are fundamental questions'about the extent to which our society will permit the treatment of children as commercial objects rather than formative human beings entrusted to our care.

The majority opinion refers to the statement that “we must be rigorous and open-minded in our analysis of both law and fact” as an indication of the fairness of the speaker. However, in the context in which this speech was delivered, these remarks appear much more as an admonition that the Commissioners must steel themselves against those who would “permit the treatment of children as commercial objects [and stop the Commission (we) from] hearpng] . the parents, the teachers, the pediatricians, the dentists [etc. and those others who are advocating what he terms to be] the children’s best interest”.

Finally he postulates the problem as being to determine the “extent to which [the Commission is] to permit the treatment by television of children as commercial objects.”

In a 1978 Newsweek article the Chairman is quoted as follows:

‘Commercialization of children has crept up on us without scrutiny or action’, says Michael Pertschuk, the agency’s new chairman. ‘It is a major, serious problem. I am committed to taking action.’ (Emphasis added).

This statement is not denied. That he is “committed to taking action” cannot be construed as indicating that he is merely going to urge fellow Commissioners to hold *1191 hearings but rather that he has already concluded that “a major, serious problem” exists and the only remaining problem is to decide what the Commission should do about it. This supports what he has said before, that practically his sole concern is what action the Commission should take.

Finally we come to several letters written by the Chairman. Their full contents should be noted:

November 9, 1977

MEMORANDUM

TO: Charlie Ferris

FROM: Mike Pertschuk

Now after shooting my mouth off for three months here’s our effort at putting some legal underpinnings under our initiatives on children’s advertising. I should probably come over in the next couple of days to make sure that we don’t cross each other inadvertently.

* * * * * *

November 9, 1977

MEMORANDUM

TO: Coleman [sic] McCarthy

FROM: Mike Pertschuk

Coleman, I know you share my concern in raising public consciousness to the part we play as a society for permitting children to be made commercial objects. I thought you’d want to see this statement in which I’ve tried to establish underpinings [sic] for a fundamental assault on television advertising directed toward young children.

(Emphasis added).

* * * * * *

November 9, 1977

MEMORANDUM

TO: Senator Stevens

FROM: Mike Pertschuk

Senator, I thought your floor statement on children’s advertising was just great and really appreciate your support once again.

I thought you might be interested in the speech I gave in Boston yesterday in which I tried to lay out the legal underpinings [sic] — which I’m convinced are strong — for decisive action by the Commission in areas of children’s advertising abuses. Thanks.

On November 17,1977 he wrote the Honorable Donald Kennedy as follows:

November 17, 1977

Honorable Donald Kennedy

Food and Drug Administration

Parklawn Building

5600 Fishers Lane

Rockville, Maryland 20852

Dear Don:

Setting legal theory aside, the truth is that we’ve been drawn into this issue because of the conviction, which I know you share, that one of the evils flowing from the unfairness of children’s advertising is the resulting distortion of children’s perceptions of nutritional values. I see, at this point, our logical process as follows: children’s advertising is inherently unfair. As a policy planning agency we have to make judgments as to our priorities. The first area in which we choose to act is an area in which a substantial controversy exists as to the health consequences of encouraging consumption of sugared products (not just cereals). With this formulation we do not have to prove the health consequences of sugared cereals. What we do have to prove is that there is a substantial health controversy regarding the health consequences of sugar — a much lower burden of proof.

I’m convinced that the convergence of public policies regarding the commercial exploitation of children with the health controversy over sugared products give us a stronger base and frankly deal directly with the underlying concerns which prompt our action.

Sincerely yours,

Michael Pertschuk

(Emphasis added).

These letters indicate that by November 17, 1977, the Chairman had a “conviction ” that there are “evils flowing from the unfairness of children’s advertising . . ” and he had been vigorously marshalling sentiment throughout the nation for a “fundamental assault on television advertising directed toward young children.” Letter of *1192 November 9,1977 to Colman McCarthy. So by that date he was already convinced that children’s advertising was evil and unfair. He then advocates the legal theory for authorizing the Commission to take such action as he might advocate. His final paragraph is likewise strong evidence of the extent of his prejudgment.

I’m convinced that the convergence of public policies regarding the commercial exploitation of children with the health controversy over sugared products give us a stronger base and frankly deal directly with the underlying concerns which prompt our action. (Emphasis added).

In his letter of November 9,1977 to Charlie Ferris he said that “after shooting my mouth off for three months here’s our effort at putting some legal underpinings [sic] under our initiatives on children’s advertising”. He has already concluded, as his letter to Colman McCarthy indicates, that society in an “evil ” manner, possibly attributable to “moral myopia ”, has permitted children to be made commercial objects.

Thus, if the Notice of Rulemaking were truthful, so far as Chairman Pertschuk’s views were concerned, it would have stated in substance:

The Commission has decided to make a fundamental assault upon Children’s Advertising on TV because we are convinced that it is evil, unfair and allowed solely because of the moral myopia of the public and the industry. We solicit comments as to whether it should be prohibited entirely or to some lesser degree.

VI. AGENCY RULEMAKING AND CONGRESSIONAL LEGISLATION-COMMISSIONERS AND CONGRESSMEN.

Notwithstanding that the majority opinion holds that a “fair decisionmaker” is to be guaranteed for this rulemaking, the opinion seeks to obviate such guarantee, if I read the opinion correctly, by holding that Commissioners in their Magnuson-Moss rulemaking are to be considered the same as Congressmen, and the fairness with which they approach their rulemaking cannot be attacked because Congressmen are not subject to similar constraints in enacting legislation.

To reach such result the majority opinion compares Section 18 unfair and deceptive practice rulemaking by the Federal Trade Commission to the enactment of legislation by Congress and likens the appointed Commissioners of the Federal Trade Commission to the Senators and Representatives elected to Congress. It points out that courts have not imposed procedural requirements on legislatures and that there is nothing to restrict Congressmen from prejudging factual and policy issues. 8 The opinion also notes that legislators must have the ability to exchange views with constituents and suggest public policy dependent upon factual assumptions..

The majority opinion quotes the unprecedented views of Professor Glen O. Robinson, a former member of the Federal Communications Commission, as follows:

Although members of agencies such as the FCC certainly do perform significant judicial functions in deciding individual cases, they perform even more tasks of a legislative or an executive character. When the FCC, for example, promulgated regulations barring common ownership of local newspapers and broadcast stations, it performed a legislative task, pure and simple. In reaching the decision, the Commission was neither bound by, nor *1193 expected to conform to, the confining procedures or standards of a court. [The FCC, however, was not acting under the strictures of the Magnuson-Moss Act] Why then should the decisionmakers be stamped from a judicial case? Insofar as the agency is delegated broad legislative powers and responsibilities, would it not be at least as appropriate to measure agency members against standards used to evaluate legislators? Such standards would place agency members on a better standing with respect to judges and would create an entirely new frame of reference for assessing agency performance. The supremacy of carefully reasoned principle — the supposed ideal of judicial decision — necessarily would yield to the dictates of political compromise and expediency, which are the accepted hallmarks of legislative action. Correspondingly, the standard for evaluating the composition of the agencies would shift from an emphasis on professional training to an emphasis of representativeness. (Emphasis added) (Comment added)

This appears to be the source of the court’s opinion that converts what is only a suggestion of Professor Robinson into a decision holding that the Commissioners of the Federal Trade Commission have the same authority as members of Congress. What an extreme ruling. Professor Robinson was honest when he admitted that this proposal “would create an entirely new frame of reference for assessing agency performance” but his article can be searched throughout without finding any suggestion that a court in one of its decisions could convert Federal Trade Commissioners into the equivalent of Congressmen. Professor Robinson’s proposition could only be implemented by Congressional action, since agencies are purely creatures of congress.

It is true that legislators are not required to make findings of fact to support their legislation and that they cannot be disqualified by any court for bias, but there are other safeguards in the legislative process that compensate for the absence of such safeguards as are expressly imposed or implicit in the administrative process. First of all, legislators are elected by the voters of their district, and those in the House are elected for a relatively short term — only two years. They can be turned out very quickly if any bias they disclose offends their constituents. Secondly, there is a protection in the sheer size of Congress — 535 members of the House and Senate — that implicitly diffuses bias and guarantees that impermissible bias of individual members will not control. There is safety in numbers and a biased Congressman soon loses influence among the other members, if he ever acquired any. Also, the two house system and the Presidential veto are tremendous guarantees that legislation will not be the result of individual bias or even the impermissible bias of one house. 9

*1194 Because these legislative safeguards were not applicable to Federal Trade Commissioners, Congress saw fit to impose other safeguards, i. e., (1) confirmation by the Senate, (2) limited terms for FTC Commissioners, (3) public notice and mandatory public hearings when proposing legislative type rules, (4) cross-examination, rebuttal, a public written record, a statement of reasons and purpose, and (5) a requirement that whatever rule is promulgated be supported by substantial evidence on the record as a whole, and (6) be subject to judicial review and other safeguards previously noted.

Congress considered these safeguards to be necessary to provide the same degree of protection that exists in Congress with respect to its exercise of legislative power. So the answer to that portion of the court’s opinion that makes Congressmen out of FTC Commissioners, as I interpret it, is that the majority opinion elsewhere in citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 , 98 S.Ct. 1197 , 55 L.Ed.2d 460 (1978), recognizes that such a fundamental change in agency procedure cannot be made by the courts. We cannot make Congressmen out of Commissioners any more than we could by our decision make errand boys for the court out of the members of the Nuclear Regulatory Commission. Courts cannot reduce or circumscribe statutory agency power and by the same token they cannot grant powers that only Congress can give. Courts have no power to supplant the Senate, House and President by creating a legislative body of five members whose acts would not be subject to judicial review except to the same extent as Congressional statutes. Such a body would actually be a five man Federal Trade Congress.

VII. FAIRNESS AND DISQUALIFICATION.

The majority refers to the act of Congress that authorizes the Commission to prosecute unfair and deceptive acts and practices by rulemaking and contends that due process does not require more procedures than Congress has provided. Vermont Yankee Nuclear Power Corp., supra, 435 U.S. at 524, n. 1 , 98 S.Ct. 1197 . However, a fair rulemaker is not a “procedure it is an implicit requirement that flows from any situation that calls for a result to be reached on evidence.

The opinion then jumps to assert that since

Congress is under no requirement to hold an evidentiary hearing prior to its adoption of legislation . . . Congress need not make that requirement when it delegates the task to an administrative agency. [But it did.] (Bowles v. Willingham, 321 U.S. 503, 519 , 64 S.Ct. 641 , 88 L.Ed. 892 (1944) (Citing Bi-Metallic Investmen t Co. v. State Board of Equalization, 239 U.S. 441 , 36 S.Ct. 141 , 60 L.Ed. 372 (1915)). Accordingly, we must apply a disqualification standard that is consistent with the structure and purposes of section 18. (Comment added). Maj. Op. p. - of 201 U.S.App.D.C., p. 1166 of 627 F.2d.

I have no disagreement with the statement in the last sentence. My disagreement extends only to the conclusion the majority eventually reaches, i. e., that their result “is consistent with the situation and purposes of section 18.” On this point I concur with Professor Scalia that the statutory intent evident in Section 18 requires MagnusonMoss rulemakers to be without disqualifying bias or prejudgment.

The next assertion, by the author of the Cinderella opinion, is that we never intended the Cinderella rule to apply to a rule-making procedure such as the one under review.” (Emphasis added). So far as the other judges of the division of the Court that decided the Cinderella case are concerned, I believe this is an overstatement. We never expressed any opinion as to the application of our ruling in Cinderella to a Magnuson-Moss rulemaking proceeding. That issue was not involved in the case. We never concluded that the same principle did, or did not, apply to such proceedings. We applied the rule to disqualify the Chairman in Cinderella,.a case involving an adju *1195 dication, because the parties had a right to a fair decisionmaker. Since, as the majority admits, a fair decisionmaker also is required here in the promulgation of substantive rules establishing specific unfair and deceptive acts and practices, no reason exists why the same rule should not be applied to this case in order to assure fair decision-makers. How else could fair decisionmakers be obtained?

I would not restrict members of a regulatory commission in their public discussion of policy issues, and there is nothing in the requirement that rules should be promulgated after fair hearings by unbiased Commissioners that would prohibit administrators from discussing “the wisdom of various regulatory positions.” The office of the Commissioner contemplates some such activity but that does not justify their overstepping ordinary bounds of reasonableness to become loud advocates and spend three months haranguing the public with their prejudgment on basic factual issues that they must eventually decide. Reasonable public discussion should not be restricted and our history indicates that requiring fairness in our decisionmakers has not inhibited public discussion. Very few public officials serving as members of regulatory agencies have ever been charged with overstepping reasonable bounds. But when a decisionmaker, who must rise above partisanship, descends to vigorous and consistent advocacy over a substantial period of time and commits himself in the public mind, he jeopardizes his ability to make fair determinations and in extreme cases, such as we have here, he should be disqualified from subsequently posing as a fair decisionmaker on the subject of his advocacy.

At pages -, - of 201 U.S.App.D.C., pp. 1170-1171 of 627 F.2d the majority opinion concludes:

Accordingly, a Commissioner should be disqualified only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding. The ‘clear and convincing’ test is necessary to rebut the presumption of administrative regularity. See, e. g., Withrow v. Larkin, 421 U.S. 35, 55 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975); Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 204 , 598 F.2d 91 , 123, (D.C. Cir. 1978). The ‘unalterably closed mind’ test is necessary to permit rulemakers to carry out their proper policy-based functions while disqualifying those unable to consider meaningfully a section 18 hearing.

421 U.S. 35 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975) (Emphasis added).

However, while the majority cites Withrow v. Larkin, 421 U.S. 35 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975), that case does not apply the “unalterably closed mind standard.” Withrow involved a Wisconsin statute prohibiting various acts of professional misconduct by physicians. The act empowers the State Examining Board to warn and reprimand physicians, and thereafter to temporarily suspend licenses and institute civil action to revoke a license or initiate criminal action. Following its investigation, the Board notified a licensed physician that a closed investigation would be held to determine whether he had engaged in certain proscribed acts. At that juncture the doctor brought an action against the Board seeking injunctive relief against the hearing on the ground that in deciding to proceed against him the Board had prejudged his case and would therefore be disabled from hearing and deciding his case on the basis of evidence to be presented at the subsequently scheduled contested hearing. In determining the standard to be applied to the Board in such circumstances the Court remarked:

No specific foundation has been presented for suspecting that the Board had been prejudiced by its investigation or would be disabled from hearing and deciding on the basis of the evidence to be presented at the contested hearing. The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. Without a showing to the contrary, state administrators ‘are assumed to be men of conscience and intellectual *1196 discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” United States v. Morgan, 313 U.S. 409, 421 , 61 S.Ct. 999, 1004 , 85 L.Ed. 1429 (1941).

421 U.S. at 55 , 95 S.Ct. at 1468 (Emphasis added). Withrow thus suggests a “fairness” standard; i. e., whether there is any ground for suspecting the Board of such unfairness that it could not hear and decide the case on the basis of the evidence to be presented at the contested hearing. 10 If the 1948 decision in Federal Trade Commission v. Cement Institute, 333 U.S. 683 , 68 S.Ct. 793 , 92 L.Ed. 1010 (1948) is construed as establishing an irrevocably closed mind standard, the subsequent decision in With-row must be recognized as modifying that rule.

. The “unalterably closed mind” standard is also basically inconsistent with the holding that only fair decisionmakers may promulgate rules. Unfairness may exist in many instances where the Commissioner’s mind is short of being “unalterably closed”. The disqualification standard should be high, but not that high.

VIII. THE STANDARD FOR DISQUALIFICATION.

Because of the deficiencies pointed out above, I would reject the unalterably closed mind standard as imposing a practically impossible impediment in a great many cases to a showing of bias, even when the decisionmaker has in fact made up his mind in advance of the hearing. 11 It is an unfair method of determining unfairness. Instead, I suggest that a superior standard can be gleaned from recent Supreme Court holdings, from a frank appraisal of the ex *1197 tent to which the Magnuson-Moss proceedings in this case require adjudicative determinations, and from considerations of fairness that must be said to be implicit in the structure of any statutory tribunal that is held out to the public as acting in accordance with the substantial evidence presented at public hearings.

The Supreme Court’s decisions in Withrow v. Larkin, 421 U.S. 35 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975) and Hortonville Joint School District No. 1 v. Hortonville Ed. Ass’n, 426 U.S. 482 , 96 S.Ct. 2308 , 49 L.Ed.2d 1 (1976), each cited by the majority, hold that fairness is the ultimate measure of the qualification of an arbiter.

In Withrow , Justice White stated:

[I]f the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised. [T]hat the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high. 421 U.S. at 58 , 95 S.Ct. at 1470 (emphasis added).

In Hortonville, Chief Justice Burger quoted from United States v. Morgan, 313 U.S. 409, 421 , 61 S.Ct. 999 , 85 L.Ed. 1429 (1941) in pointing out certain circumstances in which disqualification would be justified:

Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.”

426 U.S. at 493 , 96 S.Ct. at 2314 (Emphasis added).

That both of these cases involve consideration of disqualification of decisionmakers from adjudications does not deprive them of value in formulating a standard for disqualification from the Magnuson-Moss rulemaking that is involved here. As discussed supra, this Magnuson-Moss rulemaking contains many elements of adjudication — and in any event the majority admits that each of the decisionmakers must, be fair. The fairness required stems not solely from constitutional due process considerations, but from the Congressional design of the statutory proceedings.

This design dictates concern not only for the FTC Chairman’s duty to serve as policymaker as well as decisionmaker, a concern embraced by the majority, but also requires recognition of the rights of the public and those who appear before the Commission. It follows logically, then, that where the contestants of a proposed rule have the right to present evidence at a hearing on disputed issues of material fact, as in a Magnuson-Moss rulemaking proceeding, they necessarily have a correlative right to have their evidence heard by a decisionmaker who will give it fair and impartial consideration.

This is not to say that a Commissioner is necessarily to be disqualified if he (or she) has expressed opinions on policy matters that are later involved in Commission rule-making. Rather, the moving party must show by a preponderance of the evidence that the decisionmaker could not participate fairly in the formulation of the rule because of substantial bias or prejudgment on any critical fact that must be resolved in such formulation. Such proof will be greatly aided where, as here, the decisionmaker’s public statements repeatedly reveal fixed conclusions upon the primary issue that the agency proceeding contemplated would only be determined after the hearing. Such standard for disqualification accords with the underlying principles that were applied in Withrow and Hortonville, supra.

Chairman Pertschuk over a substantial period of time, on the very matter here presented, has made numerous appearances as a vigorous public advocate “committed” to curing the “evils” and “moral myopia” evident in the “exploitation” of children’s advertising on TV. Even applying the ma *1198 jority’s stiff test for disqualification, such conduct and expressions from his own mouth and pen, as near as words and conduct can, indicate an “irrevocably closed mind” and prejudgment of the ultimate fact involved — the “evil” of such advertising — and he should recuse himself; failing this the court should order his disqualification from participation in the proceedings. He has proved that he is not an impartial decisionmaker on this matter.

For the foregoing reasons I respectfully dissent against the result reached by the majority.

. The statute provides:

“(3) Upon the filing of the petition under paragraph (1) of this subsection, the court shall have jurisdiction to review the rule in accordance with chapter 7 of title 5, [United States Code] and to grant appropriate relief, including interim relief, as provided in such chapter. The court shall hold unlawful and set aside the rule on any ground specified in subparagraphs (A), (B), (C), or (D) of section 706(2) of title 5. [United States Code] (taking due account of the rule of prejudicial error), or if—

“(A) the court finds that the Commission’s action is not supported by substantial evidence in the rulemaking record (as defined in paragraph (1)(B) of this subsection) taken as a whole, or

“(B) the court finds that—

“(i) a Commission determination under subsection (c) that the petitioner is not entitled to conduct cross-examination or make rebuttal submissions, or

“(ii) a Commission rule or ruling under subsection (c) limiting the petitioner’s cross-examination or rebuttal submissions, has precluded disclosure of disputed material facts which was necessary for fair determination by the Commission of the rulemaking proceeding taken as a whole.

88 Stat. 2195 -2196, 15 U.S.C. § 57a(e)(3).

§ 18(e)(1)(B) provides:

“(B) For purposes of this section, the term ‘rulemaking record’ means the rule, its statement of basis and purpose, the transcript required by subsection (c)(4), any written submissions, and any other information which the Commission considers relevant to such rule. (Emphasis added).

§ 18(c)(4) provides:

“(4) A verbatim transcript shall be taken of any oral presentation, and cross-examination, in an informal hearing to which this subsection applies. Such transcript shall be available to the public.

. Id.

. Id.

. See this court’s opinion in Chocolate Manufacturers Association of United States, Inc. v. F. T. C., 199 U.S.App.D.C. 29, 617 F.2d 611 (D.C.Cir. 1979) in which we referred to the Magnuson-Moss Act as “a codification of the hybrid approach between adjudication and rulemaking”. 199 U.S.App.D.C. at p. 33 , 617 F.2d at p. 615 .

. Davis, Administrative Law of the Seventies, § 15.00-8, at 376 (1976). There is no indication that Professor Davis intended to refer to “rules . made on the record”, the phrase that triggers formal rulemaking under §§ 556, 557 of the Administrative Procedure Act.

. Davis, Administrative Law of the Seventies, § 15.00-8, at 375 (1976).

. Whether the “disputed issues of material fact” involve adjudicative or legislative facts is clearly not settled. The majority opinion finds that the Section 18 hearing on disputed issues of material fact does not involve legislative facts — and also cites authority that it does. Maj. op. at pp.--- of 201 U.S.App.D.C., pp. 1162-1165 of 627 F.2d.

I note only that whatever characterization be accorded such disputed issues of material fact, the Commission is not authorized to prejudge them prior to the Section 18 hearing.

. The Majority opinion states:

No court to our knowledge has imposed procedural requirements upon a legislature before it may act. Indeed, any suggestion that congressmen may not prejudge factual and policy issues is fanciful. A legislator must have the ability to exchange views with constituents and to suggest public policy that is dependent upon factual assumptions. Individual interests impinged upon by the legislative process are protected, as Justice Holmes wrote, ‘in the only way that they can be in a complex society, by [the individual’s] power, immediate or remote, over those who make the rule.’ Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445 , 36 S.Ct. 141 , 60 L.Ed. 372 (1915).

Maj. op. p. - of 201 U.S.App.D.C., p. 1165 of 627 F.2d.

. Moreover, the personal bias and prejudgment of an individual member of Congress is ordinarily a relatively immaterial matter because of the large number of members in each house. The House does provide that a member shall vote on each question unless he has a “direct personal or pecuniary interest in the event of such question.” Rule VIII, Rules of the House of Representatives (1979). Most of the cases that arise involve pecuniary interests of the members and it is the practice that the member himself determines the question. Dechler’s Procedures, Ch. 30, §§ 4.2-4.7; V Hind’s, §§ 5950, 5951; VIII, 3071. In III Hind’s § 2518 it is reported that Representative Boatner disqualified himself from voting in committee with respect to an investigation of a judge because he had preferred charges against the judge in the prior Congress. This decision by Representative Boatner to disqualify himself is particularly illustrative of the delicacy that should be applied in deciding on disqualification of officials who take a position that stands out in advocating a certain course of subsequent action.

Representative Boatner’s personal interpretation of the disqualification rules is all the more significant because the weight of authority is that, short of a man voting on his own case, there is no authority in the House to deprive a member of the right to vote. V Hind’s §§ 5937, 5952, 5959, 5966, 5967; VIII § 3072. Such situations raise extremely delicate questions of fairness, so public officials, like Congressman Boatner, and judges, should consider the appearance of fairness they present to the public, and most of all should recognize their own prejudgment and bias when it is apparent to the public.

. In a similar vein, in Home Box Office v. FCC, 185 U.S.App.D.C. 142 , 567 F.2d 9 (D.C.Cir.1977), we concluded that the consideration by the FCC of off the record evidence in a rulemaking proceeding, through ex parte contacts, violated “fundamental notions of fairness”.

. The factual situation would have to be as extreme and as public as the Chairman’s conduct here to prove the required bias. The standard for juror disqualification referred to in the concurring opinion, (text accompanying note 2) is not stated fully by asserting that the test is merely whether the juror feels he can lay aside his impression or opinion and render a verdict based on the evidence presented in court. The true test is whether he can lay aside his opinion before the case starts. Irvin v. Dowd, 366 U.S. 717, 728 , 81 S.Ct. 1639, 1645 , 6 L.Ed.2d 751 (1961) found the jury improperly constituted where some jurors admitted “that it would take evidence to overcome their belief” in the defendant’s guilt. From this it appears that the court was applying a threshold standard. See also Beck v. Washington, 369 U.S. 541, 557 , 82 S.Ct. 955 , 8 L.Ed.2d 98 (1962), referred to in Murphy v. Florida, 421 U.S. 794, 802, 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975). In Beck ,

each [of the persons selected for the trial jury] indicated that he was not biased, that he had formed no opinion as to the petitioner’s guilt which would require evidence to remove, and that he would enter the trial with an open mind disregarding anything he had read in the case.”

369 U.S. at 557 , 82 S.Ct. at 964 . (Emphasis added). The last requirement is essential and should not be overlooked. The court in Beck clearly applied a threshold test that would have disqualified a juror if he “enterfed] the trial . . . [with an] opinion . . which would require evidence to remove.” Id. This is the only fair and workable standard because otherwise jurors who had opinions they thought they could set aside after the evidence was in would convict a defendant if he did not put in any evidence. An identical threshold test was applied throughout the Teapot Dome trial of Albert B. Fall, Secretary of the Interior in the Harding administration. See the record in that case. Fall v. U. S., 60 App.D.C. 124 , 49 F.2d 506 , cert. denied, 283 U.S. 867 , 51 S.Ct. 657 , 75 L.Ed. 1471 (1931).

The concurring opinion also incorrectly states (text accompanying note 3) that the “unalterably closed mind” standard is similar to that employed for the disqualification of judges. The applicable United States statute requires the disqualification of judges on much lesser grounds. It provides that:

“[a]ny justice, judge, magistrate ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and “shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . . .” 28 U.S.C. § 455 , 88 Stat. 1609 , (emphasis added).

28 U.S.C. § 455 , 88 Stat. 1609 . (emphasis added).

If that standard were applicable, there are certainly reasonable grounds for questioning the Chairman’s impartiality.