The opinion
FRIEDMAN, Chief Judge,
concurring:
This is a difficult and perplexing case which requires the reconciliation of two lines of conflicting congressional directives.
1. On the one hand, two sets of statutes counsel secrecy. First, there are the statutes authorizing the Secretary to account for these expenditures by merely certifying their amount without disclosing their nature. 22 U.S.C. § 2671 (a) (1976); 31 U.S.C. § 107 (1976). The procedure of accounting for expenditures relating to foreign affairs secretly through certificates is almost as old as the Constitution. In the Act of Feb. 9, 1793, ch. IV, § 2, 1 Stat. 299 , 300, Congress empowered the President to account for all money spent “for the purposes of intercourse or treaty, with foreign nations,” either specifically or by certificates, “as he may think it advisable.” This section was codified in the Revised Statutes of 1878. R.S. § 291.
The present version gives the President the same choice in accounting for all expenditures “for the purposes of intercourse or treaty with foreign nations ... as he may think it advisable.” 31 U.S.C. § 107 . In 1979, $2,350,000 was appropriated “to enable the Secretary of State to meet unforeseen emergencies arising in the Diplomatic and Consular Service,” to be accounted for under section 107. Act of Sept. 24, 1979, Pub.L.No. 96-68, title I, 93 Stat. 416 , 417.
Second, in 1980, Congress passed the General Accounting Office Act of 1980, Pub. L.No. 96-226, 94 Stat. 311 . Section 101 authorizes the General Accounting Office to audit an expenditure accounted for solely by certificate “to determine whether the expenditure was, in fact, actually made and whether such expenditure was authorized by law.” 31 U.S.C. § 67 (f)(1) (Supp. IV 1980).
While the Act imposes some control and oversight on those expenditures, their confidentiality is maintained. The results of such audits may be released only to the President and the head of the agency involved and, solely in cases of discrepancies, to the Senate Committee on Government Affairs, the House Committee on Government Operations, and the Senate and House committees having legislative and appropriations authority over the particular agency. Id. § 67(f)(2).
Further, the President may exempt from audit expenditures “which relate to sensitive foreign intelligence or foreign counterintelligence activities, or sensitive law enforcement investigations.” Id. § 67(f)(3)(B).
Section 102 of the Act gives the Comptroller General subpoena powers to conduct the audits. He cannot, however, issue or enforce a subpoena for (1) materials relating to foreign intelligence or foreign counterintelligence activities; (2) materials that, by statute, cannot be disclosed to him, under the same standards as exemption 3 of the Freedom of Information Act provides; or (3) materials that exemptions 5 and 7 of the Freedom of Information Act, 5 U.S.C. §§ 552 (b)(5), 552(b)(7) (1976), cover, the disclosure of which could impair substantially governmental operations. 31 U.S.C. § 54 (d) (Supp. IV 1980). All information he receives is subject to the same level of confidentiality as it had in the originating agency. Id. § 54(e).
*706 The congressional concern in the Act was to maintain the secrecy of these records and materials while at the same time making the agencies accountable for their secret expenditures. S.Rep.No. 570, 96th Cong., 2d Sess. 3-8, reprinted in 1980 U.S.Code Cong. & Ad.News 732, 734-39. Congress intended the certificates to remain secret; it limited distribution even to itself. As the district court said, it does not make sense to release, under the Freedom of Information Act, materials that Congress itself does not see. Washington Post Co. v. Department of State, 501 F.Supp. 1152, 1157 (D.D.C.1980).
2. On the other hand, as the court notes, the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. IV 1980), imposes broad requirements of disclosure subject to detailed and carefully delineated exemptions. The courts have recognized that the nine exemptions in the Freedom of Information Act are the exclusive exceptions to the general rule of disclosure. E.g., Department of Air Force v. Rose, 425 U.S. 352, 361 , 96 S.Ct. 1592, 1599 , 48 L.Ed.2d 11 (1976); Jordan v. Department of Justice, 192 U.S.App.D.C. 144, 147 , 591 F.2d 753, 756 (1978). The Department of State has relied solely on exemption 3. It claims that 22 U.S.C. § 2671 (a) and 31 U.S.C. § 107 together justify nondisclosure of material relating to the Emergency Fund.
The court convincingly shows that exemption 3 cannot be used to protect confidentiality of this material. In that exemption Congress imposed exacting requirements governing the kind of confidentiality statutes that would justify nondisclosure. As the court demonstrates, although the two statutes upon which the State Department relies reflect congressional intent to maintain confidentiality of the Emergency Fund, they do not meet the strict standards Congress imposed in exemption 3.
3. The statutes I have referred to in part 1 leave no doubt in my mind that if Congress ever had considered whether to permit disclosure under the Freedom of Information Act of material relating to the Emergency Fund, it would not have permitted such disclosure. In the Freedom of Information Act, however, Congress did not address the question. I agree with the court that there is no basis upon which we can ignore or seriously distort the language and standards of exemption 3 to reach a result that we think Congress would have favored if it had considered the problem.
4. On the record before us we cannot tell or even guess the true nature of the material the plaintiff seeks or the effect, if any, its disclosure would have upon the foreign relations of the United States. I therefore fully agree with the court’s action in giving the government and the district court the opportunity on remand to invoke or consider other exemptions in the Freedom of Information Act as a basis for maintaining the confidentiality of this material. If all or some of this material has been classified, exemption 1 might cover it. The government might be able to invoke the privilege covering state secrets, see United States v. Reynolds, 345 U.S. 1 , 73 S.Ct. 528 , 97 L.Ed. 727 (1953), and if it did, exemption 5 might apply. Other exemptions also might be available. Furthermore, this may be a situation where only some but not all of the material might be protected against disclosure. These are issues the district court may consider on the remand. I understand the court’s opinion as giving the district court broad discretion in handling the matter. Finally, under our decision Congress will have the opportunity to take legislative action to maintain the confidentiality of the Emergency Fund if it deems that course appropriate.
The steps that the court has taken to provide further opportunity to protect the Emergency Fund material against disclosure seem to me to be as far as it properly may go. I do not see how, however, consistent with the Freedom of Information Act, the court on the present record could hold that exemption 3 covers this material or that there is some other basis for protecting it against disclosure.