The opinion
*647 RUSSELL E. SMITH, Senior District Judge,
dissenting.
I dissent.
We deal here with the lives of the persons who fly military aircraft. The Air Force asserts a privilege which it considers essential to its air safety program. The district court sustained the privilege and found on evidence that there was a substantial need for the nondisclosure policy. 1
In Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896 , 84 S.Ct. 172 , 11 L.Ed.2d 124 (1963), which was decided before the enactment of the FOIA, a privilege was found to exist as to statements given to the Air Force under promises that the statements would be held confidential. Following the enactment of the FOIA, the Fifth and Eighth Circuits, in Cooper v. Department of the Navy, 558 F.2d 274 , cert. denied, 444 U.S. 926 , 100 S.Ct. 266 , 62 L.Ed.2d 183 (1977), and Brockway v. Department of the Air Force, 518 F.2d 1184 (1975), relied on Machin and, notwithstanding the FOIA, recognized the identical privilege asserted here.
The Supreme Court in Federal Open Market Committee v. Merrill, 443 U.S. 340 , 99 S.Ct. 2800 , 61 L.Ed.2d 587 (1979), did not decide the exact question presented here, nor did it decide whether the privilege announced in Machín survived the enactment of the FOIA. In Merrill the Court said:
The two other privileges advanced by the FOMC are a privilege for “official government information” whose disclosure would be harmful to the public interest, see Machin v. Zuckert, 114 U.S. App.D.C. 335, 338, 316 F.2d 336, 339 , cert. denied, 375 U.S. 896 [ 84 S.Ct. 172 , 11 L.Ed.2d 124 ] (1963), and a privilege based on Fed. Rule Civ. Proc. 26(c)(2), which permits a court to order that discovery “may be had only on specified terms and conditions, including a designation of the time or place.” In light of our disposition of this case, we do not consider whether either asserted privilege is incorporated in Exemption 5.
443 U.S. at 355-56, n. 17 , 99 S.Ct. at 2809-2810, n. 17 . In view of the quoted language, I do not think it can be said that Merrill constitutes a repudiation, sub silentio, of Cooper and Brockway . I believe those cases to be sound, and I would follow them and affirm.
. See Cooper v. Department of the Navy, 558 F.2d 274, 276 (1977), cert. denied, 444 U.S. 926 , 100 S.Ct. 266 , 62 L.Ed.2d 183 (1977).