Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
This appeal requires us to decide whether the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II § 1 et seq. (1982 and Supp. V), applies to a group of experts selected and managed by a private scientific organization pursuant to the organization's contract with the Food and Drug Administration (FDA) to provide counsel on food and cosmetics safety issues. The contractor, Federation of America Societies for Experimental Biology (FASEB), is a federation of major bio-medical research organizations (the American Physiological Society, the American Society for Biochemistry and Molecular Biology, the American Society for Pharmacology and Experimental Therapeutics, the American Association of Pathologists, the American Institute of Nutrition, the American Association of Immunologists, and the American Society for Cell Biology). Implementing its contract with the FDA, FASEB assembled a group of seven experts to address food safety and quality issues of concern to the FDA's Center for Food Safety and Applied Nutrition. This expert group, titled Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade, was declared by the district court an "advisory committee" subject to the requirements of FACA. Food Chemical News v. Young, 709 F.Supp. 5 (D.D.C.1989).
Just over three months after the district court's decision, the Supreme Court released a pathmarking opinion on the scope of FACA: Public Citizen v. United States Dep't of Justice, ___ U.S. ___, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Applying the analysis indicated in that controlling precedent, we conclude that the expert panel FASEB assembled pursuant to its contract with the FDA was not an "advisory committee" within the meaning of FACA. We therefore reverse the judgment of the district court.
In March 1988, the FDA solicited bids for a contract to provide "expert, objective counsel to the [FDA'S] Center for Food Safety and Applied Nutrition on general and specific issues associated with the safety of food and cosmetics." Food Chemical News, 709 F.Supp. at 6. FASEB bid on the contract, stating that performance would be effected by FASEB's Life Science Research Office, a permanent FASEB department, composed of some ten resident scientists, established to "analyze problems in the life sciences for Federal and private
The contract between FASEB and the FDA provided for the periodic placement of "Task Orders" for services. This case centers on Task Order No. 3, captioned "Emerging Food Safety and Quality Issues for the Next Decade." Task Order No. 3 directed FASEB, "the contractor," to "assemble the pertinent information" on emerging issues by "describing the issue, evaluating the current knowledge, and offering expert counsel on what is needed for FDA to adequately address[ ] the issue." Consistent with FASEB's bid, Task Order No. 3 further specified:
Next, the Task Order instructed:
To start the work Task Order No. 3 required, FASEB selected a group of experts and convened a first meeting of the panel January 11-13, 1989. Part of the meeting was open to the public, part was not. Just before that meeting took place, Food Chemical News, joined by Public Citizen Health Research Group and Center for Science in the Public Interest, commenced this litigation claiming that the ad hoc panel assembled pursuant to Task Order No. 3 should be subject to the public meetings and other requirements of FACA. Although plaintiffs initially sought a preliminary injunction, the parties eventually agreed that the district court should rule on the matter finally and dispositively, in response to their cross motions for summary judgment.
Enacted in 1972, FACA responded to a congressional will to assess the need for the "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C.App. II § 2(a); see Public Citizen, 109 S.Ct. at 2562. Congress, through FACA, sought
Public Citizen, 109 S.Ct. at 2562, citing 5 U.S.C.App. II § 2(b).
Among the controls Congress installed, FACA requires each advisory committee to file a charter, 5 U.S.C.App. II § 9(c), and to keep detailed minutes of its meetings, id. § 10(c). Furthermore, a representative of the Federal Government, with authority to order adjournment, must attend advisory committee meetings. Id. § 10(e). The public is entitled to advance notice of advisory committee meetings, and generally to attend them. Id. § 10(a), (d). Subject to Freedom of Information Act limitations, advisory committee documents must be made available for public inspection. Id. § 10(b). Advisory committee membership is to be "fairly balanced in terms of the points of view represented and the functions" the committee performs. Id. § 5(b), (c).
Id. § 3(2). We now turn to the dispositive question whether the Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade, the panel proposed, chosen, and convened by FASEB to work on Task Order No. 3, falls under FACA as a group or committee the FDA "established or utilized ... in the interest of obtaining advice."
We start with a key point that is not in dispute: FASEB and its Life Science Research Office do not figure in this case as an "advisory committee" subject to FACA; instead, FASEB falls under the main rule, made clear in the legislative history, that the "Act does not apply to persons or organizations which have contractual relationships with Federal agencies." H.R.Conf.Rep. No. 1403, 92d Cong., 2d Sess. 2, reprinted in 1972 U.S.Code Cong. & Admin. News 3508, 3509 (also stating that FACA does not apply to "advisory committees not directly established by or for [Federal] agencies"); see also H.R.Rep. No. 1017, 92d Cong., 2d Sess. 4, reprinted in 1972 U.S.Code Cong. & Admin.News 3491, 3494 (FACA term "advisory committee" does not include contractor or consultant hired by an officer or agency of the Federal Government). Congress was no doubt mindful that government contractors, unlike the groups that prompted enactment of FACA, see supra 330, are subject to procurement regulations designed, or at least intended, to provide checks against waste and other misuses of government resources. See, e.g., 48 C.F.R. §§ 9.500-505 (providing for identification and resolution of organizational conflicts of interest which may impair a contractor's objectivity in performing contract work).
In the district court, plaintiffs successfully urged a distinction between FASEB, the contractor not subject to FACA, and the Task Order No. 3 expert panel. The district court recognized that the contractor proposed the use of an expert panel, chose the panel members, and was to prepare the report conveying the panel's advice. Food Chemical News, 709 F.Supp. at 6. Furthermore, the district court comprehended that the contractor's function was not simply to "rubber stamp" the panel's recommendations; instead, FASEB bore ultimate responsibility for determining whether the panel's report was "scientifically valid" and not "otherwise in error." See id. at 8; cf. National Anti-Hunger Coalition v. Executive Comm. of President's Private Sector Survey on Cost Control, 711 F.2d 1071, 1075-76 (D.C.Cir.1983) (suggesting FACA applies to advisory groups if intermediaries are merely "rubber stamping" the group's recommendations "with little or no independent consideration"). Despite the prominent role of FASEB in proposing, selecting, and reviewing the panel, and FASEB's exemption from FACA, the district court held the expert panel an "advisory committee" within FACA's compass. The district court reasoned that the FDA "established" the panel because the FDA/FASEB contract required FASEB to assemble the panel as a means of obtaining the advice sought by the agency. Food Chemical News, 709 F.Supp. at 7-8. The district court further found that the FDA had "utilized" the panel because FASEB was to furnish the FDA with the panel's advice, not the contractor's. Id. at 8-9.
The FDA urges on appeal that the district court's reasoning has been superseded by the Supreme Court's analysis in Public Citizen v. United States Dep't of Justice, ___ U.S. ___, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989).
Plaintiffs in Public Citizen conceded that the ABA Committee was not "established" by the President or the Justice Department; they maintained, however, that the Committee was "utilized by" the Executive Branch "in the interest of obtaining advice." See 5 U.S.C.App. II § 3(2), set out supra pp. 330-331. The Supreme Court rejected that argument. The Court concluded that Congress did not intend that the term "utilized" apply to the Justice Department's use of the ABA Committee. Accordingly, the Court ruled that the Committee was not subject to FACA controls.
Plaintiffs-appellees in this case ask us to read Public Citizen as carving out only a "narrow exception" to FACA's "broadly crafted" definition of "advisory committee." See Brief for Appellees at 37. We comprehend the Public Citizen opinion, however, as limiting FACA to "groups organized by or closely tied to the Federal Government, and thus enjoying quasi-public status." Public Citizen, 109 S.Ct. at 2570 (Congress intended to encompass groups established by the Executive Branch or by statute and "offspring" of organizations "created or permeated by the Federal Government").
The Supreme Court's Public Citizen opinion initially observed: "There is no doubt that the Executive makes use of the ABA Committee, and thus `utilizes' it in one common sense of the term." Public Citizen, 109 S.Ct. at 2565. The Court then proceeded firmly to reject "a literal reading" of the FACA provision defining "advisory committee." See id. at 2566, 2571. "[T]here is considerable evidence," the Court stated, that Congress, in enacting FACA, "sought nothing more than stricter compliance with reporting and other requirements — which were made more stringent — by advisory committees already covered by [existing regulations]
Public Citizen, as earlier noted, focused on the term "utilized," but the Court defined that term in relation to the preceding term "established" in the statutory formulation: a group "established or utilized by" an agency. See 5 U.S.C.App. II § 3(2), set out supra pp. 330-331. In the Court's delineation, as we understand it, "established" indicates "a Government-formed advisory committee," Public Citizen, 109 S.Ct. at 2570, while "utilized" encompasses
Applying the analysis in Public Citizen, we hold that the expert panel here in question is not an "advisory committee" within the meaning of FACA. The panel was "established" by FASEB, not by FDA. FASEB proposed the panel, and alone selected its members. FASEB also set the panel's agenda, scheduled its meetings, and would have reviewed the panel's work. Similarly, FASEB was the entity that, by contract, directly "utilized" the panel. FASEB is a private organization and government contractor; it does not have "quasi-public status." See Public Citizen, 109 S.Ct. at 2570. The panel was to be managed by FASEB; it was "not amenable to [any] management by [FDA] officials," or "by [any] semiprivate entity the Federal Government helped bring into being." See id. at 2568, 2571. The final report, under the FDA contract and Task Order, was to be prepared and presented not by the panel but by FASEB.
As superseding Supreme Court instruction in Public Citizen requires, the decision of the district court declaring the Expert Panel on Emerging Issues in Food Safety and Quality During the Next Decade an "advisory committee" subject to the requirements of FACA is