This is the first appellate case concerning the scope of the Federal Advisory Committee Act, 5 U.S.C. App. I. Plaintiff seeks a judicial determination that a regular bi-weekly series of meetings between high Executive officials and private sector groups are "advisory committee" meetings within the meaning of section 3 (2) of that Act. The district court held that they were not, and while plaintiff believes that the court took an overly narrow view of the statutory term "advisory committee, the fundamental errors in the district court's opinion are the assumptions it made concerning the nature of the committees and the advice which they furnish. While the parties stipulated as to the material facts, the court, going beyond the stipulation, somehow gleaned from the record the conclusions that the committees were "unstructured, " "informal," "amorphous," "ad hoc," and that they gave "unsolicited - 2 advice" which was "casual" and "informal" and which was not on "specific subjects indicated in advance." There is no support in the record for any of these assumed facts, and plaintiff believes that the parties' stipulation as to the material facts contradicts most, if not all, of the court's assumptions. Whether or not the Advisory Committee Act would apply to committees fitting the district court's description, we think it clear that the Act applies to the conference committee program described in the parties' stipulation of material facts. STATEMENT OF THE ISSUE PRESENTED May Executive officials, without complying with the procedural safeguards of the Federal Advisory Committee Act, organize and regularly convene over a period of a year and a half, closed bi-weekly meetings with special interest groups to secure advice and recommendations on how the Federal Government can ameliorate the special economic problems of those groups? STATUTE INVOLVED The text of the Federal Advisory Committee Act, 5 U.S.C. App. I, is attached as an addendum to this brief. Sections 3 (2) and 3 (4), upon which this controversy centers are quoted in full below: Sec. 3. For the purpose of this Act - (2) The term "advisory committee" means any - 3 group, or any subcommittee or other subgroup (A) (B) (C) established by statute or reorganization established or utilized by the President, or established or utilized by one or more in the interest of obtaining advice or recommendations (4) The term "Presidential advisory committee" means REFERENCES TO PARTIES AND RULINGS This case was originally assigned to District Judge William B. Bryant, but, after the completion of discovery and the submission of cross-motions for summary judgment, it was reassigned to District Judge Gerhard A. Gesell. Oral argument was held, and on June 23, 1975, Judge Gesell granted defendant William J. Baroody's motion for summary judgment, and denied plaintiff Ralph Nader's cross-motion for summary judgment. The district court's memorandum and order is reproduced in the Joint Appendix at pages 1-6, and it has been published at 396 F.Supp. 1231. STATEMENT OF FACTS A. Description of Bi-Weekly Meetings. "These Since June 26, 1974, and continuing to the present time, the White House Office of Public Liaison, headed by defendant Baroody, "has regularly convened meetings every two weeks between high Executive branch officials and major business organizations and private sector groups for the purpose of obtaining information, 1/ recommendations, views and advice" (Stip. 3, J.A. 7). meetings were called at the initiative of the Office of Public Liaison, and they are scheduled and organized under the defendant's overall direction, which includes the selection of participants" (Stip. 4, J.A. 7). "The goal of the program is to open the White House to private sector groups and thereby increase the flow of two-way communication between these groups and top Executive branch officials" (Stip. 5, J.A. 8). At these meetings, which run an average of about three and a half hours (Stip. 12, J.A. 9), "government 1/ "J.A. 7" refers to page 7 of the Joint Appendix, submitted by the parties in this Court. "Stip. 3" refers to the third paragraph of the "Stipulation Of The Parties As To The Material Facts As To Which There Is No Genuine Issue" (J.A. 7-11). While the parties stipulated in the Court below to all of the facts they believed to be material, they supplemented those facts with the uncontested affidavit of Ms. Barbara Tuerkheimer (J.A. 12-17), which summarizes certain evidence found in defendant's files concerning the subject meetings, several Exhibits consisting of typical documents from those files (J.A. 18-65), and defendant's answers to plaintiff's interrogatories (J.A. 66-78). For the convenience of the court, relevant portions of these supplemental materials were cited in connection with each stipulated fact. - 5. participants generally discuss economic policies that bear on the particular industry involved" (J.A. 14), after which "about twenty members of a special interest group generally describe their needs and concerns and give their advice and recommendations as to how government policy should deal with these needs" (Stip. 9, J.A. 8; J.A. 14, 22, 23). "Often some appropriate follow-up action is decided upon at the meetings, [and s]ometimes, there is a follow-up meeting" (J.A. 16, 23, 31). These meetings have been held with representatives of such groups as the life insurance industry, the electric utility industry, the chief executive officers from selected major U.S. corporations, senior citizens groups, the printing industry, the food processing industry, and the Grocery Manufacturers of America (Stip. 10, J.A. 8-9). Participants generally submit briefing materials containing their advice and recommendations on how the government can meet their special needs (Stip. 14, J.A. 9), and further explain these at the meeting (Stip. 13, J.A. 13). Illustrative of these recommendations are the thirty or so suggested measures to attain a strengthened economy in general and to help the printing industry in particular, whose adoption the printing industry urged at its December 4, 1974 meeting (J.A. 43-44). These included recommendations ranging from an increase in the investment tax credit and support for accelerated depreciation for capital equipment (J.A. 43), to priority treatment for industry in energy utilization and an |