Church of Scientology of California v. Internal Revenue Service

*164 SILBERMAN, Circuit Judge,

concurring:

The court confronts in this case a difficult issue of statutory interpretation. The puzzle begins with 26 U.S.C. § 6103 (1982), which provides generally for nondisclosure of “return information” in the interest of taxpayer confidentiality. All sides agree that the heart of this controversy is the proper interpretation of the Haskell amendment, which authorizes the agency to release material that otherwise could not be released because it would be (but for the Haskell amendment) “return information.” In other words, what does the phrase “data in a form which cannot be associated with or otherwise identify, directly or indirectly, a particular taxpayer” mean? But I believe there is another question presented of equal importance: Did Congress intend that the IRS’s interpretation of what constitutes such “data in a form ...” be given deference by the judiciary?

I think it must be conceded that Section 6103 is, at the very least, ambiguous as to the issue now before the court. Nothing in the language of the statute itself yields a decisive understanding as to whether Neufeld or King is a more faithful rendering of the statute’s purpose. The legislative history is sparse and inconclusive on the Neufeld/King question. Against the backdrop of this ambiguity the parties argue for divergent interpretations of this provision. The agency argues that the Haskell amendment means that data must be amalgamated or combined in a different form (Appellee’s Supp.Br. at 5 n. 4) and specifically points to data “rendered anonymous by amalgamation into general statistics” as satisfying that test (Id. at 9). 1 The agency relies heavily on the adoption of this interpretation by the Seventh Circuit in King and further argues that a broader definition — such as that adopted by the majority — apart from creating certain anomalies and inconsistencies in the statutory scheme, presents troublesome administrative problems. The Secretary, we are told, has grave difficulty in determining the ability of one who requests information to “correlate facially nonidentifying data with specific taxpayers.” Appellees’ Supp.Br. at 13. The Church, on the other hand, argues that any document in the IRS files that contains return information must be disclosed provided that identifying information is first redacted. Through the majority opinion, this court rejects as excessively narrow the agency’s construction of the statute and offers yet another construction. It concludes that the Haskell amendment exempts from the general rule of nondisclosure nonidentifying return information that has also undergone “agency reformulation ... into a statistical study or some other composite product____” Maj.Op. at 160 (emphasis in original). Each of these interpretations is, in my view, a reasonable construction of a difficult statute, but I disagree with the majority’s decision to treat its own construction as authoritative. I believe the majority's approach oversteps the limitations on the court’s proper role as defined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984).

The message of Chevron is emphatic. A court’s duty in matters of statutory construction is to give effect to congressional intent. If that intent is not precisely apparent, however,

the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based oh a permissible construction of the statute.

Id. at 843 (footnote omitted). Beyond this we cannot go.

I believe Chevron’s instruction applies to the issue of statutory construction now before the court. Section 6103(b)(2), set out in full in the majority opinion at page 156, defines return information by enumerating several different categories of information, but qualifying the enumeration with the words of the Haskell amendment “but such *165 term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.” 26 U.S.C. § 6103 (b)(2) (1982). The words of the Haskell amendment seem to me to cry out for application of the doctrine of deference expounded in Chevron. No one, it would seem, is better qualified than the Secretary to decide whether certain classes of information may be released in compliance with the Haskell amendment.

I

Before proceeding, I must address a question that the majority raises without answering — “whether an interpretive theory put forth only by agency counsel in litigation, which explains agency action that could be explained on different theories, constitutes an ‘agency position’ for purposes of Chevron.” Maj.Op. at 162 n. 4. I think it is much too late to question whether the construction of Section 6103(b)(2) urged by agency counsel in this case really represents the IRS’s position. We know that the IRS has been advancing its interpretation in courts throughout the country at least since 1982, when it persuaded the Seventh Circuit in King to adopt its position, and perhaps even before then. To suggest in these circumstances that the King analysis is not an “agency position” is to imply that IRS counsel are mavericks, disembodied from the agency that they represent. I reject that supposition. See Ashland Oil, Inc. v. FTC, 548 F.2d 977 , 984-85 (D.C.Cir.1976) (MacKinnon, J., dissenting).

The precept that the agency’s rationale must be stated by the agency itself stems from proper respect for the separation of powers among the branches of government. In the seminal case of SEC v. Chenery Corp., 318 U.S. 80 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943), the Court explained that “a judicial judgment cannot be made to do service for an administrative judgment.” Id. at 88 , 63 S.Ct. at 459 . Similarly, in Investment Co. Inst. v. Camp, 401 U.S. 617 , 91 S.Ct. 1091 , 28 L.Ed.2d 367 (1971), the Court declined to defer to agency counsel’s interpretation, noting that “Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Id. at 628 , 91 S.Ct. at 1097 . In these cases, the Supreme Court declined “to substitute [its own] or counsel’s discretion for that of the [agency]” because to do so would be “incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate ... the administrative process, for the purpose of the rule is to avoid ‘propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ ” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169 , 83 S.Ct. 239, 246 , 9 L.Ed.2d 207 (1962) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 (1947) (citation omitted) (Chenery II)). In other words, the doctrine developed as a manifestation of judicial restraint. If courts were to accept an agency counsel’s position that significantly differed from the agency’s position, they would in effect substitute a judicial interpretation for the agency’s.

The doctrine has been applied in a variety of cases. Courts have rejected as inadequate agency counsel’s articulation of a statutory interpretation when that interpretation has been inconsistent with a prior administrative construction, see Securities Indus. Ass’n v. Board of Governors of the Fed. Reserve Sys., 468 U.S. 137 , 104 S.Ct. 2979, 2983-84 , 82 L.Ed.2d 107 (1984); Pitzak v. OPM, 710 F.2d 1476 , 1479 n. 2 (10th Cir.1983); when the record evidence before the court demonstrates no link between counsel’s interpretation and administrative practice, Alaniz v. OPM, 728 F.2d 1460, 1465 (Fed.Cir.1984); or when agency counsel’s interpretation is revealed as no more than a “current litigating position.” Ames v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 F.2d 1174 , 1177 n. 3 (2d Cir.1977); see McMillan & Peterson, “The Permissible Scope of Hearings, Discovery, and Additional Factfinding During Judicial Review of Informal Agency Action,” 1982 Duke L.J. 333 , 363 n. 163. 2 And in Investment Co. Inst. v. Camp, the Supreme Court de *166 dined to credit agency counsel’s statutory interpretation, offered in support of an agency regulation, where the Comptroller had “adopted no expressly articulated position at the administrative level as to the meaning and impact” of the relevant statutory provisions. 401 U.S. at 627 , 91 S.Ct. at 1097 . Those circumstances are not present in this case, however. The construction of the Haskell amendment was not even a central issue in this case in its administrative phase before the agency. There was no need then for the agency to set forth its position on that issue. It was not until the case came before the district court that the issue arose in any form. There the Church argued that in light of Neufeld, which had been decided during the district court litigation, the IRS could not tenably maintain that it need not even search files known to contain return information. The IRS, bound, of course, by the Neufeld court’s construction of the Haskell amendment, argued to the district court that since the Church’s request identified the taxpayer, “no information could be released by the Service that would be anonymous.” Defendants’ Memorandum in Reply to Plaintiff’s Statement of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment at 3. On appeal before the D.C. Circuit panel, the IRS acknowledged that it was bound by Neufeld, but urged the court to reconsider Neufeld in light of King. Thus, at the first moment in the case when it was appropriate and relevant for the IRS to articulate its construction of the statute, it did so. En banc consideration of the issue ensued.

What is clear from all this is that the King analysis is in no way inconsistent with the basis for the agency’s decision in the administrative appeal. See Appellee’s Panel Br. at 24 n. 11. This is not a case like Investment Co. Inst. v. Camp. In that case, the Comptroller of the Currency, to whom Congress had only recently reassigned regulatory responsibility for national banks’ trust activities, adopted, three decades after enactment of the Glass-Steagall Act, a regulation that departed from a long-settled interpretation of the statute. See 401 U.S. at 621-22 , 91 S.Ct. 1094 -95. The Comptroller plainly neglected to furnish an appropriate rationale for his actions at a stage in the proceedings where there was a compelling need to articulate a link between the statutory provisions and the new regulation. The time to provide a statutory interpretation that underpins a newly promulgated rule that sweeps away earlier interpretations of the statute is obviously at the time of the rulemaking. In informal administrative adjudicative proceedings that evolve into federal court litigation, by contrast, the issues may well be shaped and sharpened throughout the proceedings. I think it is enough that the agency, through its counsel, set forth its interpretation of the statute at the first moment when it was appropriate and relevant to do so.

Were the rule to be otherwise — were the courts to withhold deference unless an agency asserted its interpretation of a statute in a formal adjudication or agency rule-making — we would be creating a strong incentive for government agencies and departments to undertake their business strictly through formal procedures. Although judicial review of administrative action has seemed in recent times to push in that direction, I doubt that much good can come of this trend or, more importantly, that it is justified by congressional direction. See 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). We should take care that a doctrine developed to restrain the judiciary not be transformed to serve as a justification for excessive judicial intervention.

In any event, if this court rejects King on the unwarranted assumption that King is not the IRS’s “true” interpretation of the Haskell amendment, the agency presumably could undercut the court’s holding merely by taking some more formal step to adopt King as the Commissioner’s interpretation of the statute. This strikes me as an unseemly institutional pas de deux. 3

*167 II

FOIA’s general policy favors disclosure, but the statute also recognizes nine categories of exemptions from the general rule of disclosure. One of the exemptions, found at Section 552(b)(3), provides that (b) This section does not apply to matters that are ...

(3) specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

5 U.S.C. § 552 (b)(3) (1982).

Thus, the language of Section 552 exempts statutes such as Section 6103 4 from “[t]his section,” which I take to mean the entire Section 552 in the absence of any other plausible reference. But Section 552 contains not only the disclosure requirements; it also contains the provision for de novo judicial review. While it is obvious that materials covered by exemption 3 are exempted from the disclosure requirement of Section 552, mere assertion that requested documents are covered by an exemption 3 statute will not serve to immunize items from disclosure. The de novo review section of FOIA requires courts to examine withheld documents to determine whether they are in fact covered by an exemption 3 statute. But that cannot possibly mean that the law applied in those proceedings is other than that embodied in the exemption 3 statute. That is to say, the definition or scope of “matters” covered by the exemption 3 statute must derive from the exemption 3 statute. It could come from nowhere else. 5

I have found nothing in the legislative history of FOIA or its subsequent amendments that contradicts this analysis. The House Report accompanying S. 1160, the bill whose provisions were eventually codified as amended at 5 U.S.C. § 552 , explained that “[t]he proceedings are to be de novo so that the court can consider the propriety of the withholding instead of being restricted to judicial sanctioning of agency discretion.” H.R.Rep. No. 1497, 89th Cong., 2d Sess. 9 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418. The Senate Report stated: “That the proceeding must be do novo is essential in order that the ultimate decision as to the propriety of the agency’s action is made by the court and prevent [sic] it from becoming meaningless judicial sanctioning of agency discretion.” S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965). 6

*168 But does de novo review mean more than an independent examination of the facts in light of applicable law; 7 is it inconsistent with deference to an agency’s reasonable construction of a statute it administers? In other words, must Chevron give way whenever a court is charged with de novo review?

I have concluded that Chevron does apply in such circumstances. The rule of Chevron is not a rule of judicial administration for courts to apply in reviewing administrative decisionmaking. It is an articulation of the fundamental principle that when Congress intends to delegate authority to an agency, that purpose demands recognition by the courts. I reason as follows.

In entrusting administration of a statute to an agency, Congress typically delegates to the agency concomitant authority to “fill any gap” that Congress has left. Morton v. Ruiz, 415 U.S. 199, 231 , 94 S.Ct. 1055, 1072 , 39 L.Ed.2d 270 (1974). Part of the legislative purpose with respect to a particular statute, then, is Congress’ intent that the agency will exercise its delegated authority in fulfillment of the statute’s purpose. Courts appropriately defer to an agency’s reasonable interpretation of a statute that the agency administers, then, not simply out of recognition of the agency’s expertise, but primarily out of respect for congressional intent.

In Sims v. CIA, 642 F.2d 562 (D.C.Cir. 1980), this court took an approach contrary to my analysis and treated the issue of statutory construction of an exemption 3 statute as a question of law “reserved ultimately to our determination.” Id. at 568 . In that case, the CIA declined to disclose documents that revealed the names of individuals and institutions that had participated in a controversial research program. The agency argued that the documents were “specifically exempted by statute” from disclosure within the meaning of Section 552(b)(3). The exemption 3 statute upon which the CIA relied was 50 U.S.C. § 403 (d)(3) (1982), which authorizes the Director to protect “intelligence sources and methods from unauthorized disclosure.” Appellants argued that the institutions and *169 individuals did not constitute “intelligence sources” within the meaning of the statute. Thus, the issue in the Sims case, as in this case, turned on construction of a term in the exemption 3 statute. On appeal, this court devised a definition of the term “intelligence sources” after reviewing the statute and its legislative history. The court stated that FOIA authorized the judiciary “to undertake de novo review” not only of “agency determinations that particular records fall within exemption classifications,” but also of “agency constructions of applicable statutes.” 642 F.2d at 566 (citation and footnote omitted). The court acknowledged that “[bjecause the term ‘intelligence ... sources’ appears in the text of the National Security Act, it is appropriate for us to begin our analysis with the construction proposed by the CIA, an agency chartered by that statute and charged with major responsibility for its administration.” 642 F.2d at 568 (citations omitted). The court continued, “But we must not shrink from the responsibility vested in us by Congress. The question presented is one of law reserved ultimately to our determination.” Id.

The Sims court’s observations as to the state of the law on deference to administrative agencies’ determinations in 1980 were, in my view, overbroad and erroneous. It has always been true that statutory interpretation is a question of law but it is equally true that an agency’s construction of its governing statute traditionally has been viewed as entitled to deference in certain contexts. As this court recognized in a case decided after Sims , although the “APA appears to require de novo review of all questions of law ... courts almost always accord some deference to an agency’s statutory construction.” 8 Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 , 1422-23 n. 12 (D.C.Cir.1983); see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 , 89 S.Ct. 1794, 1801-02 , 23 L.Ed.2d 371 (1969); Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 153-54 , 67 S.Ct. 245, 250-51 , 91 L.Ed. 136 (1946); McLaren v. Fleischer, 256 U.S. 477, 480-81 , 41 S.Ct. 577, 577-78 , 65 L.Ed. 1052 (1921); Webster v. Luther, 163 U.S. 331, 342 , 16 S.Ct. 963, 967 , 41 L.Ed. 179 (1896). Chevron has put a new gloss on these old truisms. Chevron tells us that if congressional intent respecting a statutory provision is not clear, we must not treat the issue of statutory construction as we would treat any other garden variety question of law. We must defer to another institution’s determination — that of the agency charged to administer the law— provided, of course, that the agency’s determination is reasonable. In this sense, I believe that Chevron supersedes the Sims court’s overbroad analysis.

My view is further reinforced by the Supreme Court’s treatment of the definitional issue when Sims came before that Court. 9 CIA v. Sims, 471 U.S. 159 , 105 S.Ct. 1881 , 85 L.Ed.2d 173 (1985). Dismissing the court of appeals’ definition of “intelligence sources” as too narrow, the Court stated:

The plain meaning of the statutory language, as well as the legislative history *170 of the National Security Act, ... indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals’ narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering — the very reason Congress entrusted this Agency with sweeping power to protect its “intelligence sources and methods.”

Id., 105 S.Ct. at 1887-88 . This approach is consistent with Chevron insofar as it first undertakes an inquiry as to the clarity of the legislative intent. Having found clear indications of congressional intent in the language of the statute and its legislative history, the Court had no need to move to the next step of the analysis that Chevron directs — determining whether the administrative agency had advanced a reasonable interpretation of the statute to which the judiciary should defer. But the Court’s recognition of the “practical necessities of modern intelligence gathering” that compelled Congress to delegate to the CIA “sweeping power” to protect “intelligence sources and methods” indicates that the Court’s conclusion as to legislative purpose was buttressed by its understanding of the agency’s delegated authority and practiced expertise. Similarly, here Congress has delegated to the Secretary of the Treasury, authority to administer the federal income tax laws. And Section 6103 is an integral part of the mosaic of those tax laws because it directs the Secretary to protect return information from disclosure. Congress realized that the confidentiality of return information, which taxpayers usually provide voluntarily, is crucial to efficient administration of the tax laws. S.Rep. No. 938, 94th Cong., 2d Sess. 316-19 (1976), U.S.Code Cong. & Admin.News 1976, p. 2897. Naturally, the Secretary, like the Director of Central Intelligence in Sims, is better situated than the courts to determine when disclosure of information is likely to inhibit the collection of that information in the future. For that reason, Congress quite understandably delegated to the Secretary some responsibility for further refining the meaning of “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.”

Ill

Applying the traditional principle of deference, as refined by Chevron, to this case, I conclude that we should defer to the agency’s interpretation of Section 6103. As noted above, the agency’s interpretation of Section 6103 is not an inevitable one but that is not the test. The Chevron Court indicated, rather, that when congressional intent is not clear

a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

467 U.S. at 844 , 104 S.Ct. at 2782 (footnote omitted). Congress’ implicit delegation of authority to the agency to refine the definition of “return information” is buttressed by the broad discretion conferred upon the Secretary in another portion of the statute to disclose return information if he determines that such disclosures would not seriously impair administration of the tax system. See 26 U.S.C. § 6103 (e)(7) (1982) (release of return information to persons having material interest). This instance of statutorily-conferred discretion to disclose, albeit to a limited class of requesters, even information sensitive enough to be categorized as return information suggests that the prior determination of what constitutes nondisclosable return information ought to be informed by the agency’s expertise.

The majority refuses to defer to the agency’s interpretation because it asserts that the agency’s practice is inconsistent with its interpretation of the statutory text. Specifically the majority focuses on the government’s continued release of the tax model as fatal to its interpretation of the Haskell amendment. However, the majority does not contend that the tax model cannot fit easily within the general phrase “data in a form which cannot be associated *171 with, or otherwise identify, directly or indirectly, a particular taxpayer.” 26 U.S.C. § 6103 (b). That argument would, in any event, be tenuous in light of the explicit statement Senator Haskell made from the floor. He said that the amendment was intended to permit “the Internal Revenue Service [to] continue to release for research purposes statistical studies and compilations of data, such as the tax model, which do not identify individual taxpayers.” 122 Cong.Rec. 24,012 (1976) (remarks of Sen. Haskell).

Instead, the majority raises what I view as an artificial textual barrier by ascribing to the government an argument not presented in its brief, and not necessary to its position, 10 that the Haskell amendment is identical in its scope of disclosure authority to Section 6108 and that Section 6108’s' text provides no authority to release the tax model. The agency, however, as I understand its position, maintains that the Haskell amendment was intended to authorize disclosure of statistical compilations such as those referred to in Section 6108 and disclosure of the tax model, which disclosure is apparently not otherwise authorized by the statute. The legislative history of the Haskell amendment amply supports the government’s position that it was designed to authorize the continued release of data the government had released prior to its passage.

To be sure, there may not be a great deal of difference between the agency’s interpretation of the Haskell amendment, adopted by the Seventh Circuit in King, and the majority’s rendition. But the rule of Chevron requires us not to reason our *172 own way to an interpretation, even if it were one that the agency might find consistent with its own. Rather, Chevron requires us to defer to agency interpretations, such as the one at issue here, that merit deference. I am reinforced in my conviction that deference is the appropriate course in this case by the majority’s unwillingness to specify the outer boundaries of its own interpretation, Maj. Op. at 163, thus presenting this court with a heightened prospect of further litigation focused on the exploration of those boundaries.

On the basis of the foregoing, I concur in the majority’s opinion insofar as it overrules Neufeld. But I cannot join the opinion insofar as it rejects the agency’s interpretation of the statute in favor of the majority’s own.

WALD, Circuit Judge, dissenting, with whom SPOTTSWOOD W. ROBINSON, III, Chief Judge, and MIKVA, Circuit Judge, join:

I.

I dissent from the court’s newly adopted interpretation 1 of 26 U.S.C. § 6103 (b)(2) saying that the IRS may never disclose data listed in the section even if there is no risk of identification, unless it has been “reformulated.” The court reaches that interpretation based on its reading of the text of the Haskell Amendment, inferences it draws from the relationship between that Amendment and other sections of the Code, and its understanding of plausible legislative intent. I believe that these very same factors support a reaffirmance, rather than a rejection, of the interpretation of § 6103(b)(2) previously adopted by this court in Neufeld v. IRS, 646 F.2d 661 (D.C. Cir.1981).

I find nothing in the statutory text or structure to support the notion that wholly nonidentifying information 2 may not be disclosed unless it has been put in a different “form.” Such an extreme and curious requirement is at odds with the majority’s own recognition that “there is no reason ‘why Congress would have wanted to forbid the disclosure of information which would not threaten the privacy of individual taxpayers.’ ” Maj. op. at 158 (quoting Brief of Neufeld and Freedom of Information Clearinghouse at 5). The Neufeld approach, in my view, comports best with Congress’ balancing of the strong interest in taxpayer privacy and the equally strong interest in disclosure under the Freedom of Information Act whenever taxpayers’ privacy rights are not implicated.

The interpretation adopted in Neufeld adequately safeguards the privacy concerns that the majority and I share. The court in Neufeld explicitly held that “mere deletion *173 of names and addresses” does not automatically open the door for disclosure of items listed in § 6103 (b)(2). Neufeld, 646 F.2d at 665 . Rather, the court remanded the case to the District Court for determination of “what information, other than name and address, poses a risk of identifying a taxpayer,” id., with the understanding that the nature of certain documents may render them entirely nondisclosable. Id. at 666 . See also Moody v. IRS, 654 F.2d 795 (D.C.Cir.1981); Long v. IRS, 596 F.2d 362 (9th Cir.1979), cert. denied, 446 U.S. 917 , 100 S.Ct. 1851 , 64 L.Ed.2d 271 (1980).

I agree that the IRS faces a difficult task in determining just when enough information has been deleted to make the taxpayer unidentifiable. This task is no different, however, from the situation agencies often face under the redaction requirement of the Freedom of Information Act, 5 U.S..C. § 552(b), a requirement that applies even with regard to matters otherwise “specifically exempted from disclosure by statute” under FOIA’s exemption 3. 5 U.S.C. § 552 (b)(3). While I would grant considerable deference to the agency’s expertise in determining when even seemingly anonymous tax data might lead the informed requester to identify a taxpayer, I believe that this determination is for the Service to carry out on a case-by-case or, at times, a document class-by-class basis, in the same fashion that the panel opinion accompanying the en banc decision requires the IRS to proceed with respect to documents not listed in § 6103. See Church of Scientology v. Internal Revenue Service (hereinafter “Panel op.”), 792 F.2d 146, 152-153 (D.C.Cir. 1986).

In changing course so fundamentally, the court must beware of the effect that its decision will have on others who seek to review tax information in pursuit of varied goals. The plaintiff in Neufeld , for example, was a professor doing research into the practice of members of Congress, White House staff members, and other high government officials interceding on behalf of taxpayers in ongoing IRS proceedings. Neufeld “specifically disclaim[ed] any interest in information that would directly or indirectly identify individual taxpayers.” Neufeld, 646 F.2d at 662 . See also Tax Reform Research Group v. IRS, 419 F.Supp. 415 (D.D.C.1976) (public interest group researching Nixon Administration’s actions pressuring IRS with respect to persons perceived as either “friends” or “enemies”). Yet, under the majority’s holding today, the IRS is forbidden from disclosing § 6103(b)(2) data in its present form for research purposes to Neufeld, the Tax Reform Research Group, and countless other legitimate groups and scholars, even if the Service is wholly confident that there is no risk of disclosure whatsoever. Since the majority has failed to carry its burden in demonstrating that Congress intended to establish a distinct, statutory requirement of reformulation, I dissent.

II.

The majority’s major premise is that the language of the Haskell Amendment, i.e., “return information ... does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer,” 26 U.S.C. § 6103 (b)(2) (emphasis added), means Congress established a “reformulation” requirement. No data listed in § 6103(b)(2) can ever be released unless it is physically put into a different document from that in which the information presently appears in the IRS files. Deletion of any and all identifying material will never be enough. 3

*174 Otherwise, the majority urges, the term “in a form” is made superfluous, “as reading the provision without it will demonstrate.” Maj. op. at 157. In my view, however, the term “in a form” is far more easily understood as saying that the substantive types of information listed in § 6103(b)(2) are not “return information” if they can be disclosed in a manner that cannot identify a taxpayer. Thus, Congress meant to say no more than return information does not include data that, by itself or even in conjunction with other information, cannot be used to identify a particular taxpayer.

One can, of course, make talmudic dissections of everyday language to find hidden and profound implications. Unless statutory language is so clear that it compels a specific result, however, our task in statutory construction is to “ascertain the congressional intent and give effect to the legislative will.” Philbrook v. Glodgett, 421 U.S. 707, 713 , 95 S.Ct. 1893, 1898 , 44 L.Ed.2d 525 (1975). See generally id. (“ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ”) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 , 12 L.Ed. 1009 (1849)); United States v. American Trucking Associations, Inc., 310 U.S. 534, 542 , 60 S.Ct. 1059, 1063 , 84 L.Ed. 1345 (1940) (cardinal principle of statutory interpretation is “to give effect to the intent of Congress”). If the history of a statute’s enactment reveals that Congress indeed labored arduously over each choice of word and each comma, then it is likewise proper for us to analyze each word and comma with precision. But when the legislative history shows that a provision was injected into the bill at the tail end of the process, and that Congress made no apparent effort to remove every phrase the new amendment may have rendered superfluous, we only frustrate Congress’ goals by holding its words up to microscopic scrutiny. Judge Posner has pointed out that overemphasis on construing all statutes so as to avoid surplusage “rests on the unrealistic premise that [they] are drafted with complete economy of language____ There is ‘useless surplusage’ in contracts as in statutes, J. C. Penney Co. v. Commissioner of Internal Revenue, 312 F.2d 65, 72 (2d Cir. 1962), and in neither context should a court give effect to it.” White v. Roughton, 689 F.2d 118, 120 (7th Cir.1982), cert. den., 460 U.S. 1070 , 103 S.Ct. 1524 , 75 L.Ed.2d 947 (1983). There comes a point when a court must be realistic in deciding whether the drafter was using everyday expressions in the manner that we all do, or was instead creating a technical, statutory requirement. Cf American Radio Relay League v. FCC, 617 F.2d 875, 879 (D.C.Cir.1980) (“courts will not give independent meaning to a word ‘where it is apparent from the context of the act that the word is surplus-age’ ”) (quoting 2A Sutherland Statutory Construction § 47.37, at 167 (4th ed. C. Sands 1973)); see generally 2A Sutherland Statutory Construction § 47.37, at 258 (4th ed. C. Sands 1984) (discussing rule that words in statute can be disregarded if context indicates that they were not intended as adding meaning).

The Haskell Amendment was introduced on the floor of the Senate in the closing days of deliberation on a major tax reform act. See 122 Cong.Rec. 24,012 (July 27, 1976). The Amendment engendered absolutely no debate. 4 Given this history, 5 or lack thereof, I cannot agree that the three little words “in a form” evince a clear intent of Congress that data otherwise disc-losable under the Haskell Amendment because it is nonidentifying, cannot be disclosed unless it is somehow “reformulated.” The fact is that most information governed by the Haskell Amendment is already likely to be in a form different from that originally submitted to the Service since the actual return submitted by the taxpayer is exempt from disclosure, without regard to identifiability. See su *175 pra note 2. Conceding as it does that aggregation is not essential to fulfill the reformulation requirement, the majority has adopted a wooden test that turns on physical form, and in so doing has attributed an absurd intent to Congress. Under the majority’s test, the IRS may only disclose nonidentifying information if it copies it onto a fresh piece of paper, perhaps in narrative style. Yet, there is certainly no evidence that such recopying accomplishes anything that redaction would not.

The majority concludes that Congress would not have used the “in the form” language had it not wanted to create a reformulation requirement. I, on the other hand, believe Congress would have used much clearer language had it wanted to create such an arbitrary and novel reshaping requirement, without a word of explanation on the floor or in the Conference Report. Given its own emphasis on dissecting the statutory language, and avoiding Alice in Wonderland definitional structures, maj. op. at 158 n. 2,1 am startled by the apparent ease with which the majority is able to read the Haskell Amendment as creating two separate definitional elements. Nothing in the structure of the single sentence Amendment supports such a reading, only the majority’s insistence on removing any trace of redundancy. Since nothing in the main body of § 6103(b)(2) discusses the “form” that the information is in, I cannot understand how the Haskell Amendment’s use of the term “form” can be understood as allowing disclosure only where the information is in a different form from what it was originally in. As an Amicus points out, “Congress could hardly have embarked on a more oblique route if its goal was to create such a separate requirement.” Brief of Amici Curiae Professor John L. Neufeld and The Freedom of Information Clearinghouse at 4.

I do not accept the majority’s characterization of our choice here as one between construing a statutory phrase as a meaningful requirement or ignoring the same words as meaningless surplusage. Rather, I see the choice as one between attributing weighty legal significance to a common and inherently vague 6 term that could be just as meaningfully viewed in context simply as a linguistic aide to the Amendment’s main requirement of anonymity, and recognizing it for what it is, a transitional technique of drafting. Under either reading, the words make literal sense, and, functionally, the reading adopted in Neufeld and Long is far less eccentric. Thus, unless other indicia compel the result, the language itself does not, in my view, support the imposition of a distinct statutory requirement of reformulation.

But even if Congress did intend to create a reformulation requirement, I am at a loss to understand why the majority so conclusorily assumes that deletion of identifying information does not satisfy this requirement. Why is it a “curious usage” to say that a document takes a different form once deletions of key information have been made? In its original, it is in a form that identifies; once the necessary deletions are made, it is in a form that does not identify. In my view, the common understanding of keeping documents in anonymous form is satisfied once deletions of possibly identifying materials are made. Nothing in the statute indicates that Congress intended the word “form” to mean any more than this. 7

*176 The majority also argues that it “would be most peculiar to catalogue in such detail, in subparagraph (A) of the body of the definition, the specific items that constitute ‘return information’ ... while leaving to an afterthought the major qualification that none of those items counts unless it identifies the taxpayer.” Maj. op. at 157. Were the entire statute drafted at one time, there might be some merit in this argument. But, as I already pointed out and as the majority concedes, the Haskell Amendment was indeed an afterthought. It is certainly not unusual that a floor amendment makes a major change in the meaning of an original provision. The majority’s insistence on stylistic congruity ignores the reality of the legislative process. Moreover, the panel opinion itself provides the justification for the list of specific kinds of material to be described as “return information,” since it holds that items that do not appear in the list are to be treated no differently than any other item requested under FOIA.

The majority’s efforts to show that the reading adopted by this court in Neufeld v. IRS, 646 F.2d 661 (D.C.Cir.1981), and by the Ninth Circuit in Long v. IRS, 596 F.2d 362 (9th Cir.1979), cert. denied, 446 U.S. 917 , 100 S.Ct. 1851 , 64 L.Ed.2d 271 (1980), creates pockets of superfluity is similarly unpersuasive. The tension described is actually created by the majority’s insistence that the Haskell Amendment cannot be interpreted as making a few provisions of a large and complex statute internally redundant, although still functionally meaningful and consistent. The futility of relying so heavily on the minor redundancies the Haskell Amendment effects in neighboring provisions that mention “return information” is demonstrated by the fact that even the majority’s reading makes three such provisions superfluous. See § 6103(j)(4) (“return information” not to be released “except in a form which cannot be associated with, or otherwise identify ...); § 6103(i)(7)(A) (same); § 6108(c) (no disclosure shall be such as can be “associated with ... ”). Recognizing the redundancy of these provisions, the majority finds it “remarkable that the dislocations are not greater,” maj. op. at 163, and concludes that the superfluity inquiry demonstrates the propriety of its approach because the superfluity it causes is much less than that produced by the interpretation in Long. Id. Quantitatively, the majority is correct. Its approach wins 5-3. But qualitatively, the superfluity created by both readings of the Haskell Amendment are alike. 8 Neither affects any substantive, practical matter.

Given the unavoidable stylistic superfluity under either construction, I do not see how the redundancy issue can be used to carry the day for either side of the debate. Once it is recognized that any interpretation of the Haskell Amendment “dislocates” some provisions by making them technically unnecessary, I think it useless to award victory to the interpretation that affects the fewer number. The unavoidable conclusion to be drawn from the superfluity created by either construction is that Congress did not concern itself with the fact that some of the other provisions *177 were being made stylistically inelegant. Once that conclusion is reached, minor differences in how many provisions each construction affects become irrelevant.

III.

Aside from its textual arguments, the majority urges that its reading is consistent with plausible legislative intent since any case-by-case assessment that data will not identify a taxpayer is problematic because it “depends to a large extent upon uninformed estimations as to what data the requester [already] possesses.” Maj. op. at 158.

The problem of identification by an informed requester is not at all unique to the Internal Revenue Service. Exemption 4 of the FOIA, for example, exempts from disclosure material containing confidential, commercial information. 5 U.S.C. § 552 (b)(4). Exemption 6 exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(6). Exemption 7 deals with law-enforcement investigatory information to the extent that it would “constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(7)(c). All of these exemptions clearly implicate the “informed requester” problem, but the Act nonetheless provides that “[a]ny reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552 (b). Courts have developed standards and procedures to deal with agency assertions that any disclosure might lead to the substantive harm described by FOIA, taking into account the informed requester issue. See Dept. of Air Force v. Rose, 425 U.S. 352, 380 , 96 S.Ct. 1592, 1608 , 48 L.Ed.2d 11 (1976) (“what constitutes identifying information regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar, as fellow cadets or Academy Staff, with other aspects of his career at the Academy”); Halperin v. Central Intelligence Agency, 629 F.2d 144,150 (D.C.Cir.1980) (concluding that CIA was justified in not disclosing information since “[w]e must take into account ... that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself”) (quoted approvingly in S.Rep. No. 221, 98th Cong., 1st Sess. 27-28 (1983)); Schonberger v. National Transportation Safety Board, 508 F.Supp. 941, 945 (D.D.C.1981) (“the material cannot be redacted in a manner that would protect the identity of the individual whose privacy interest is at stake”).

As the panel points out in describing the procedure for evaluating the disclosability of information which does not meet the definition of “return information,” courts can, when appropriate, accept affidavits about classes of documents and information, as opposed to requiring document by document searches and Vaughn Indexes. Panel op. at 160-161. Of course, that approach entails some administrative effort, but administrative inconvenience alone has never been considered a sufficient reason for cutting back on FOIA. See Long, 596 F.2d at 367 (discussing amounts that some FOIA searches have cost but pointing out that Congress recognized that statute was an expensive one).

The majority argues, however, that while Congress was willing to tolerate the “risk of occasional unknowing disclosure” for FOIA disclosures in general, it was not willing to tolerate that risk for certain classes of information. Maj. op. at 158 (citing Central Intelligence Files). The CIA exemption teaches though, that Congress clearly know how to exclude certain classes of information from FOIA altogether when it wanted to. In the Central Intelligence File context it provided that “Operational files of the Central Intelligence Agency may be exempted by the Director of Central Intelligence from the provisions of [FOIA] which require publication or disclosure, or search or review in connection therewith.” 50 U.S.C. § 431 .

Indeed, the majority’s conclusion that Congress sought to guard broadly against the “informed requester” phenomenon is undercut by the fact that, with regard to IRS written determinations (rulings, determination letters, or technical advice memoranda) and background files relating to written determinations, Congress explicitly provides for public inspection of the doc *178 uments after deletion of the specific exempted data that is not to be disclosed. 26 U.S.C. § 6110 . Section 6110 operates independently of FOIA, sets out its own exemptions and procedures, and is in many respects stricter. Yet Congress mandated disclosure after deletion of the nondisclosable material. Written determinations such as private letter rulings that describe the underlying facts of a case surely carry with them the same risk of taxpayer identification, yet Congress was satisfied with deletion. 9 There is, so far as I can tell, nothing to indicate that Congress wanted the informed requester problem treated differently when it comes to return information. 10

Given my conclusion that items listed in § 6103(b)(2) that can be disclosed in a manner that does not identify a taxpayer are not “return information,” and are therefore not wholly immune from FOIA disclosure, 11 1 would subject such items to the same procedures as the panel provides for items not specifically listed in § 6103. See Panel op. at 153. If the Service determines that disclosure cannot be made without risk of identification, that factual assessment, of course, deserves considerable deference, dependent as it is on the agency’s expertise in the area. See Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C.Cir.1980).

The court today overreads an everyday casual phrase of no certain content to impose an important new and comprehensive restriction on disclosure of items listed in § 6103(b)(2), a requirement that does nothing in itself to advance the cause of taxpayer privacy. The majority adopts a “reformulation” test which Congress never intended, and which the majority itself is unable to define. In so doing, the court has misread the thrust of the Haskell Amendment and effectively emasculated its application. The court has, in the most classic sense, elevated “form” over substance.

I respectfully dissent.

. The agency’s brief did not contend that such statistical information was necessarily limited to the statistical compilations described in Section 6108, nor do I. And at oral argument agency counsel reiterated that the tax model would be included within the agency’s construction of the Haskell amendment, as the King court had concluded in 1982. King treated the tax model as a statistical tabulation. 688 F.2d at 493. In light of the King discussion I fail to understand the majority’s ‘'surprise" theory. Maj.Op. at 162 n. 4.

. The notion that deference should not be accorded if the agency’s interpretation appears to be no more than a “current litigation position" suggests a slightly different but related variation on the original doctrine. But the IRS has, as far as I can tell, always sincerely asserted the King interpretation whenever it was appropriate to do so.

. If the agency were formally to adopt the King position, let us say through a regulation or interpretive rule, it would surely be entitled to deference before other circuits that have not as yet faced the need to interpret the Haskell amendment. But I really see no inherent reason why it would not be entitled to deference in this court in a new proceeding as well. That prospect suggests that if the majority is uncertain as to whether the King analysis is actually the IRS’s position, it should order the case remanded to the agency to allow what it regards as an adequate demonstration to that effect.

. We have held that Section 6103 is an exemption 3 statute; that is, it meets the criteria set out in subsection (b)(3). Moody v. IRS, 654 F.2d 795 , 797 & n. 4 (D.C.Cir.1981); see Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir.), cert. denied, 444 U.S. 842 , 100 S.Ct. 82 , 62 L.Ed.2d 54 (1979); Fruehauf Corp. v. IRS, 566 F.2d 574 (6th Cir.1977); see also Zale Corp. v. IRS, 481 F.Supp. 486 , 490 n. 13 (D.D.C.1979).

. My reading of Section 6103 and FOIA nevertheless differs from the reasoning of Zale Corp. v. IRS, 481 F.Supp. 486 (D.D.C.1979), relied upon by King. The Zale court held that Section 6103 was a self-contained provision not subject at all to judicial review under FOIA. Id. at 489-90 . The court held that Section 6103 contained its own standard governing disclosure or nondisclosure of tax return information and that decisions not to disclose were subject to review only under the Administrative Procedure Act. Id. In my view, this analysis goes too far. Section 6103 and FOIA are easily construed together without the need to ignore either provision.

. In 1974 and 1976 Congress amended FOIA to clarify the meaning of de novo review and to tighten the focus of certain exemption provisions. To do this Congress explicitly overruled judicial precedents that it viewed as obstacles to fulfilling FOIA’s pro-disclosure policy. In the 1974 amendments to FOIA, for example. Congress overruled the Supreme Court’s decision in EPA v. Mink, 410 U.S. 73 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973). Congress viewed the Court’s holding as having interpreted exemption (b)(1), relating to national security and foreign policy matters, too broadly. Congress clarified in the 1974 amendments that district court judges could conduct in camera inspection of classified documents and need not defer to the agency’s decision to label a document classified. See S.Rep. No. 1200, 93d Cong., 2d Sess. 9, 12 (1974), U.S.Code Cong. & Admin.News 1974, p. *168 6267 (stating intent to overrule Mink). Similarly, in 1976, Congress overruled FAA v. Robertson, 422 U.S. 255 , 95 S.Ct. 2140 , 45 L.Ed.2d 164 (1975) , which had interpreted exemption (b)(3) to embrace a statute (and by implication a class of statutes) that Congress had not intended to include among those excusing disclosure. See H.R.Rep. No. 1441, 94th Cong., 2d Sess. 25 (1976) , U.S.Code Cong. & Admin.News 1976, p. 2183 (stating intent to overrule Robertson).

The legislative history of the 1974 and 1976 amendments to FOIA does not discuss the term "de novo review” in any directly relevant respect. But the legislative history of the 1974 amendments does discuss the term in connection with new statutory language that narrowed the scope of exemption (b)(1) and clarified that a district court may order, as part of its de novo review of an agency’s withholding determination, in camera review of classified documents. S.Rep. No. 1200, 93d Cong., 2d Sess. 8-9, 11-12 (1974). The Conference Report states that in camera inspection should not be automatically undertaken; that the agency should first receive an opportunity to demonstrate the correctness of its classification decision (the predicate for withholding documents under exemption 1) by means of affidavits. In deference to executive agencies’ expertise in national security and foreign policy matters, the conferees stated their intent that courts should “accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” Id. at 12, U.S.Code Cong. & Admin. News 1974, p. 6290. Thus, Congress recognized that even within the de novo review that it directed courts to conduct under FOIA, there was room for deference to the agency on factual issues relating to the availability of an exemption in a particular case within the agency’s delegated area of responsibility.

. The term de novo review, as it is used in the general judicial review provision of the Administrative Procedure Act, 5 U.S.C. § 706 (2)(F), is limited to an independent review of the relevant facts. Section 706 requires the reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be— ... (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 , 91 S.Ct. 814, 823 , 28 L.Ed.2d 136 (1971) (Section 706(2)(F) authorizes de novo review in two circumstances only: (1) for adjudicatory agency action, if agency factfinding procedures inadequate; (2) in proceedings for enforcement of nonadjudicatory agency action, court may undertake independent factfinding as to issues not raised before agency).

. The Office of Communications court used the term "de novo” as shorthand for the introductory language in Section 706 that instructs courts reviewing agency action to "decide all relevant questions of law.” 5 U.S.C. § 706 (1982). But as the quotation in text makes plain, office of Communications did not purport to hold that such “de novo” determinations were to be made without deference to the agency’s statutory interpretation.

. The court of appeals' decision reported at 642 F.2d 562 (1980) (Sims I) set out a definition of the term "intelligence sources” and remanded the case for the district court to apply that definition. After the district court’s decision on remand, the case again came before the court of appeals. Sims v. CIA, 709 F.2d 95 (D.C.Cir. 1983) (Sims II). This court determined that the district court had not properly applied the definition set forth in Sims I and reversed and remanded the case. Id. at 100-01 . The Supreme Court heard the case on the parties’ cross-petitions for certiorari.

For a discussion of the Sims Court’s "implicit view of a limited role for the judiciary" in reviewing agency claims of FOIA exemption 3, see Comment, CIA v. Sims: Supreme Court Deference to Agency Interpretation of FOIA Exemption 3, 35 Cath.U.L.Rev. 279 (1985).

. The majority opinion reproduces a portion of the colloquy at oral argument which it asserts establishes the IRS’s position to be that Section 6103 permits release only of the statistical studies referred to in Section 6108. I do not believe that the colloquy, in context, establishes the IRS’s position as such.

THE COURT: Your reading of Section 6103 makes 6108 superfluous.

COUNSEL: Not entirely, but it’s certainly arguable that the Haskell amendment is redundant in the light of 6108.

THE COURT: I don’t understand that. Why the two if that is what Congress intended to do? ... As I read it over and over again, it’s exactly the same. Your interpretation of the Haskell Amendment is 6108.

COUNSEL: That is right. And that’s why Senator Long said he didn’t think it was really all that necessary____

Transcript of Oral Argument at 28-29 (Dec. 5, 1985) (conformed to tape recording of oral argument).

Counsel’s apparent concession is not all it seems, however. Government counsel appears to have been momentarily caught off guard by the court’s vigorous questioning, for counsel made it abundantly clear in his immediately subsequent exchanges with the court that the IRS’s position was not confined to its understanding of Section 6108.

THE COURT: There is no congressional intention to support that view anywhere. COUNSEL: ... I’m sorry, I can’t agree with that.

THE COURT: Well, where is it?

COUNSEL: It seems very clear that Haskell was worried that the sweeping language of 6103(b)(2), that maybe legitimate scholarly use, state and local government use of the tax model which had been going on since 1960, would be choked off. "Oh, my God, they've gone too far in defining return information.” Well, 6108 was there, to be sure, but Haskell, perhaps not satisfied that one bite would be enough, thought that maybe he ought to have two, and he suggested that under those circumstances, in order to continue to make available for legitimate scholarly use the tax model and similar studies it would be important to say, that, well, data in a form that ... [the court interrupted].

Id. at 29 (conformed to tape recording of oral argument) (emphasis added).

This elaboration is consistent with IRS counsel’s earlier statement that ”[W]e submit it is very clear that the Haskell amendment was meant to permit the release of the tax model and similar statistical studies that were in an amalgamation form____” Id. at 25 (emphasis added). It is clear that the IRS never strictly limited its interpretation of the Haskell amendment to the terms of Section 6108. It viewed the Haskell amendment as permitting disclosure of the tax model and "similar statistical studies.” This clearly leaves open the possibility of the creation of other statistical studies, outside the scope of Section 6108, whose release would be permitted under the Haskell amendment. I do not contend otherwise, contrary to the majority’s suggestion. See Maj. Op. at 162 n.4. There may or may not be any statistical studies in existence or contemplated by the IRS that are outside of Section 6108; I do not know, nor did Congress — which, of course, is why (in addition to its authorization of the release of the tax model) the Haskell amendment is not redundant.

. Since the en banc court has considered only this discrete legal issue, and has left to the panel the application of its “holding to the facts of the present case,” maj. op. at 163, my dissent must similarly focus on the legal issue of § 6103(b)(2)'s general meaning. I am concerned, however, that the court’s recent practice of issuing en banc opinions on legal issues, as opposed to concrete factual scenarios, see also United States v. Foster, 783 F.2d 1082 (D.C.Cir. 1986) (en banc), poses problems. Judges typically do not issue advisory opinions on abstract legal issues because of the case or controversy requirement of Article III. While our practice here does not, of course, technically implicate those provisions, it does, in my opinion, raise some of the dangers that the case or controversy requirement protects against. For example, it is conceivable that a majority of the en banc court might think that this controversy could be disposed of on some narrower, factual ground than a wholesale repudiation of our old definition of § 6103(b)(2). Yet the contours of the issue that was heard en banc practically prevent such an alternative. Unlike Supreme Court review, where the justices review the entire record before deciding whether to hear a specific issue, our practice isolates the legal issue from its factual moorings altogether. I hope that, in the future, the court will be cautious in adopting this kind of piecemeal approach to en banc hearings. "The establishment of legal rules for future guidance," maj. op. at 155 n.l, best emerges out of fullfledged, fact-based adversarial proceedings, not judicial rulemaking.

. It is essential to note that the disclosability of actual tax returns and other information filed by the taxpayer is not at issue here. Such items are covered by § 6103(b)(1), are not subject to the Haskell Amendment, and are thus wholly immune from disclosure under FOIA’s exemption 3.

. Because it holds that § 6103(b)(2) requires both anonymity and reformulation, the effect of the majority’s holding is not to require any redaction pursuant to FOIA, since that statute has been held not to require an agency to create new documents. See Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 192 , 95 S.Ct. 1491, 1504 , 44 L.Ed.2d 57 (1975); Krohn v. Dep’t of Justice, 628 F.2d 195, 197-98 (D.C.Cir. 1980). My approach, by contrast, reads § 6103(b)(2) as not precluding disclosure of data so long as the disclosed data cannot identify the taxpayer. Deletion of identifying information can, under this approach, take certain data out of the "return information” definition, and is thus mandated by the *174 segregation requirement of FOIA. See Neufeld, 646 F.2d at 665-66 .

Of course, my disagreement with the majority goes far beyond the applicability of the segregation requirement of FOIA. Because of its "reformulation” requirement, the majority forbids disclosure of any return information in its original state, even if the information, without the need for any redaction, is absolutely nonidentifying.

. As the majority points out, the only substantive comment made was Senator Haskell’s remark about what effect the amendment would have on tax research. See maj. op. at 161.

. The House passed no like provision, and the Conference Committee report states only that

The Senate amendment provides that returns and return information are confidential and not subject to disclosure except as specifically provided by statute____ Under the amendment, data in a form that cannot be associated with or otherwise identify a particular taxpayer will not constitute return information.

S.Rep. No. 1236, 94th Cong., 2d Sess. at 476-77 (1976).

. Indeed, even the majority is unable to set forth a general test for when information is in a different form. Maj. op. at 160-63. All it is sure of is that deletion is not sufficient and aggregation is not necessary. Yet, somehow, the majority is able to "readily opine” from the purpose of its reformulation test, that mere copying in different language and style is not sufficient. Maj. op. at 163 n.5. The glaring deficiency with the majority’s "reformulation” test is that it never specifies from what original form the reformulation must be done and just what satisfies the reformulation requirement. The majority refers to "some alteration by the government of the form in which the return information was originally recorded.” Id. at 163. Yet the IRS obviously has information in its files in hundreds of different developmental stages. For example, notes of an investigation, abstracts of an investigation, list of investigations done in a week, etc. ... To say that there must be "reformulation” does not at all answer the question of what is an original form to begin with.

. The fact that Senator Haskell specifically intended to allow disclosure of items such as the tax model strongly supports the Neufeld position that redaction is enough to take a document out of the "return information” classification. In reaching its original decision in this case, the majority erroneously assumed that the tax mod *176 el was a "partly actual, partly fictional return," and thus met its novel "reformulation requirement.” Maj. op. at 163 (prior to amendment). Through a helpful post-decision motion filed by the American Civil Liberties Union of Washington, it has now come to light that, at the time of the Haskell Amendment, the tax model was in fact only "an actual return with identifying details eliminated.” Maj. op., at 162 (as amended). See Motion of Amicus Curiae to Amend Opinion (filed June 10, 1986). Given this acknowledgement of its mistaken factual assumption, I am amazed that the majority continues to claim that redaction is insufficient under the Haskell Amendment. After having relied in the original opinion on the tax model to refute the government’s suggestion that aggregation is required, the majority stubbornly refuses now to examine the effect that the newly discovered definition of the then existing tax model has on its own standard of reformulation. The correct description of the tax model at the time of passage definitively demonstrates that both the interpretations advanced by the government and the majority are wrong, and that all that the framers of the Amendment thought necessary under § 6103 was effective redaction.

. The majority argues that the score is in fact 9-2. Maj. op. at 158 n. 2. It supports this by counting § 6103 four separate times, by counting § 6103 twice, by discounting the relevance of § 6108(c), and by arguing that the phrase "in a form” is a flaw to be counted against the circuit’s former construction, but not against its own construction. Leaving these accounting issues aside, the fact remains that under either tabulation, neither construction fits snugly with the rest of the statutory scheme.

. The majority argues that the error of the Long construction is made “particularly clear" when compared with the detailed provisions set out in § 6110 for disclosure of written interpretation documents in which the public has an even stronger interest. The majority’s point, however, applies equally to its own analysis of § 6103. Why, under its construction of § 6103 would Congress have permitted disclosure of reformulated, nonidentifying information without any of the safeguards of § 6110 (which itself applies to nonidentifying, and assumedly reformulated, information)? We all agree that § 6103, unlike § 6110, operates within the confines of FOIA, and does not provide for the extra safeguards listed in § 6110. See Panel op. at 148-150. The presence of a separate statutory scheme in § 6110 does not then help the majority at all in showing that Congress was not satisfied with FOIA-type redaction under § 6103.

. In the course of the 1981 amendments to § 6103, Congress evinced an understanding of the scope of the Haskell Amendment, identical to the one adopted in Long and Neufeld . The Conference Report stated that:

Present law restricts the disclosure of tax returns and return information. However, information that cannot identify any particular taxpayer is not protected under the disclosure restrictions.

H.R.Rep. No. 215, 97th Cong., 1st Sess. 264, reprinted in [1981] U.S. Code Cong. & Admin. News 105, 353 (emphasis added). While such subsequent legislative history is, of course, not dispositive, it shows minimally that this reading is not contrary to the intent of Congress.

. Even information disclosable under § 6103 is, of course, still subject to possible exemption under one or more of the nine FOIA exemptions. 5 U.S.C. § 552 (b).