illegality pleaded by plaintiffs would be to admit our lack of judicial authority. This is not a case of damnum absque injuria. We conclude that prudential considerations do not counsel us to refrain from decision of the issues presented by this case, or from entering such relief as may be appropriate. III. RIPENESS AND MOOTNESS The Senate, as amicus curiae, raises two additional grounds for dismissal: lack of ripeness and the mootness of one of Common Cause's claims. These points need not detain us long, for these contentions are without merit, even making the dubious assumption that amicus curiae has standing to raise arguments not pressed by the parties. See, e.g., Knetsch v. United States, 364 U.S. 361, 370 (1960); Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974). The Senate contends that this action is unripe because Common Cause did not first press its claims before the House and Senate committees dealing with the frank. The Senate further contends that this action is unripe since the court would have to render its decision on the basis of abstract and hypothetical facts, in essence an advisory opinion forbidden by the case or controversy requirement of Article III of the Constitution. These arguments miss the point. The gravamen of plaintiffs' complaint is that an act of Congress is unconsitiutional on its face. To support this claim, they have engaged in substantial discovery which has produced large volumes of material concerning Congressional mailing operations under the statute. Indeed, plaintiffs further discovery requests are being objected to as massive and burdensome. More than five years ago, this court rejected an argument closely related to the one the Senate now advances: that plaintiffs should have been required to exhaust their remedies with the appropriate congressional committees before bringing this action. We ruled then and hold now that plaintiffs have no duty to bring their claims before these committees. These committes, as tribunals, have no power to grant the relief they seek, i.e., a declaration of the invalidity of an Act of Congress. See Memorandum and Order of February 10, 1975, at 2. Where plaintiffs have no duty to exhaust, and where they assert that the existence and operation of the statute violates their First Amendment rights on a recurring basis, their claims are ripe for adjudication by this court. The Senate's second contention is that Common Cause's cause of action concerning the franking of campaign literature is moot, because the Senate has adopted a rule forbidding such use of the frank. This argument is utterly devoid of merit, for its is axiomatic that a Senate rule does not amend a statute, and that the Senate may change its rules anytime it chooses. Indeed, it has been asserted by statute that it is "the constitutional right of either House to change the rules . . . at any time. . . ." 5 U.S.C. § 908 (2) (Supp. III 1979). Even if we were to accept the Senate' argument that this claim was moot under the new rule, the Senate's rulemaking power would make this issue "capable of repetition vet evading review," thus warranting decision. Moore v. Ogilvie, 394 U.S. 814 816, (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). For the foregoing reasons, the motions to dismiss this action are denied. An order consistent with the foregoing has been entered this day. Malola R. Withey (by mp) United States Circuit Judge John H. Prate United States District Judge ORDER Upon consideration of the motions to dismiss filed by defendants for lack of standing and on prudential grounds, and consideration of the various memoranda and replies filed by intervenor, defendants, plaintiffs, and amicus curiae, it is by the court this 10th day of December, 1980, ORDERED that the motions to dismiss this action for lack of standing are denied with prejudice. Morel R. Withey (by Now) United States Circuit Judge chant. Prutt Рай United States District Judge FEDERAL TRADE COMMISSION v. OWENS-CORNING FIBERGLAS CORPORATION et al., Appellants, V. Michael PERTSCHUK et al. v. OWENS-CORNING FIBERGLAS CORPORATION et al. Nos. 79-1167, 79-1443. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 11, 1979, Decided March 13, 1980 Subjects of FTC subpoenas duces tecum appealed from judgment of the United States District Court for the District of Columbia, Gerhard A. Gesell, J.. which granted enforcement. FTC appealed from provision of the order imposing restraints on disclosure. The Court of Appeals, Tamm, Circuit Judge, held that: (1) issue of whether documents were entitled to treatment as trade secrets was not ripe, and (2) because FTC did not abuse its discretion in imposing the protections against improper disclosure which it did, district court abused its discretion in imposing additional requirements. Order accordingly. Wald, Circuit Judge, filed an opinion concurring in part and dissenting in part. 1. Records 31 Federal Trade Commission may not deny Congress assess to confidential documents, including those which contain trade secrets; release to congressional requestor is not a public disclosure forbidden by the Federal Trade Commission Act. Federal Trade Commission Act, § 6(f), 15 U.S.C.A. § 46(f). 2. Constitutional Law 70.1(7) Courts may not require the FTC to delay surrendering documents to Congress to notify affected parties in advance as judiciary must refrain from slowing or otherwise interfering with legitimate investigatory functions of Congress. Court may not block disclosure of information in Congress possession, at least when disclosure would serve a valid legislative purpose. U.S.C. Const. Art. 1, § 6, cl. 1. 4. Records 53 Agency must release material sought under the Freedom of Information Act unless it falls within an exemption under the statute. 5 U.S.C.A. § 552 (a) (3). 5. Records 31 Exceptions listed in the Freedom of Information Act did not prohibit an agency from releasing material sought; they only allow agency to deny access. 5 U.S.C.A. § 552 (b, c). 6. Records 62 Upon receiving a request for document in its possession, agency itself decides in the first instance whether it includes trade secrets or other confidential information; if the agency concludes that the document is not confidential, it must release information. 5 U.S.C.A. § 552 (a) (3). 7. Records 34 Where Federal Trade Commission had promised to notify the affected party of any congressional request for information allegedly containing trade secrets in advance of the documents' transfer when possible, Federal Trade Commission was not required to give advisory opinion in advance of any request as to whether particular documents contained trade secrets. Refusal of Federal Trade Commission to make a determination, in advance of any congressional request for information, as to whether information received from certain parties constituted trade secrets did not deprive those parties of due process as, if the request came from Congress, surrender of the information would not be a public disclosure and thus not a taking of property. U.S.C.A. Const. Amend. 5. 9. Federal Courts 12 In evaluating arguments of ripeness, court must ask whether the issues have been presented in a form appropriate for judicial resolution and what hardships the parties would face by a delay in consideration of their claims. Order compelling return of documents from the Federal Trade Commission to parties supplying them would become appropriate only if FTC were to withhold the documents unlawfully at some point in the future and, until that occurred, the request for such an order was not ripe for determination. Where no one had requested information from documents in the possession of Federal Trade Commission, questions concerning the documents' status as trade secrets and FTC records were not ripe for resolution. Federal Trade Commission Act, § 6 (d, f), 15 U.S.C.A. § 46 (d, f); 5 U.S.C.A. § 552. 12. Records - 34 Because Federal Trade Commission did not abuse its discretion in making promises of protection of alleged trade secrets in the event of congressional request by informing those who supplied the information that the Commission would endeavor to give advance notice to the party who had supplied the information, it was error for district court to impose further conditions on FTC release of the documents to Congress. 13. Trade Regulation 752 Although judges should not simply rubber-stamp FTC subpoenas, their role is limited to determining if the inquiry is within the authority of the agency, if the demand is not too indefinite and the information sought is relevant; with regard to protective conditions, court must consider only whether the agency has abused its discretion in providing the particular safeguards. Federal Trade Commission Act, § 9, 15 U.S.C.A. § 49. 14 Administrative Law and Procedure 309 Agencies are free to determine their own procedures as long as they do not violate constitutional or statutory safeguards. 15. Administrative Law and Procedure 749 Until evidence appears to be contrary, agencies are entitled to a presumption of administrative regularity and good faith. Appeals from the United States District Court for the District of Columbia (D.C. Miscellaneous No. 78-0313). Richard M. Rindler, Washington, D.C., with whom Gilbert E. Geldon, Daniel J. Plaine, Alan S. Ward, John Lewis Smith, III, and Shirley Johnson, Washington, D.C., were on the brief, for appellants in No. 79-1167 and appellees in No. 79-1443. Warren S. Grimes, Atty., F.T.C., Washington, D.C., with whom Michael N. Sohn, Gen. Counsel, and Leslie Rice Melman, Atty., F.T.C., Washington, D.C., were on the brief, for appellee in No. 791167 and cross-appellant in No. 79-1443. Before TAMM and WALD, Circuit Judges, and HAROLD H. GREENE,* U.S. District Judge for the District of Columbia. Opinion for the court filed by Circuit Judge TAMM. Opinion concurring in part and dissenting in part filed by Circuit Judge WALD. TAMM, Circuit Judge: This case comes before us on cross-appeals from an order of the United States District Court for the District of Columbia that enforced, subject to certain conditions, three subpoenas duces tecum issued by the Federal Trade Commission. The appellants, respondents in the enforcement action, seek further protections against public disclosure of trade secrets that they assert appear in the documents under *Sitting by designation pursuant to 28 U.S.C. § 292 (a) (1976). |