September 6, 1978

78-50 MEMORANDUM OPINION FOR THE COUNSEL

TO THE PRESIDENT

Freedom of Information Act (5 U.S.C. § 552)—

National Security Council— Agency Status Under

FOIA

You have asked whether the National Security Council (NSC) is an Agency 

for Freedom of Information Act, (FOIA) purposes. We conclude, in general, 

that it is. This opinion does not, however, address the questions (1) whether the 

National Security Council, although an Agency under FOIA for most purposes, 

might be considered not an Agency for other purposes,1 or (2) which records 

held by the Council are Agency records within the meaning of the Act.2

I. The Freedom of Information Act

The Freedom of Information Act, 5 U.S.C. § 552 (1976), places certain 

duties, responsibilities, and obligations relating to public access to Government 

information on “ each agency” of the Government of the United States. For the 

purpose of the Act

. . . the term “ agency” as defined in section 551(1) [of 5 

U.S.C.] . . . includesanyexecutivedepartment, military department, 

Government corporation, Government-controlled corporation, or 

other establishment in the executive branch of the Government

'Cf., Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U .S. 168, 188 n. 25 

(1975). In that case the Supreme Court suggested that a Regional Renegotiation Board might be an 

“ agency” in some of its work and not an ‘‘agency" in the rest of its work.

2It follows from the conclusion that NSC is an Agency for FOIA purposes that records belonging 

to NSC are Agency records under FOIA, but NSC may hold records that belong to persons or 

entities that are not Agencies for FOIA purposes. In this connection, it is pertinent to note that the 

NSC staff views itself as not only performing the functions prescribed in the National Security Act 

of 1947, 61 Stat. 495, but also serving as ‘‘the supporting staff to the President in the conduct of 

foreign affairs,” 40 F.R . 47746 (1975); 32 CFR § 2 102.1(b)( 1976), and thus, as ‘‘an extension of 

the W hite House O ffice.”

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(including the Executive Office of the President), or any independent 

regulatory agency. 5 U.S.C. § 552(e).1 

According to the definition of § 552(e), the term “ agency,” for FOIA 

purposes, includes establishments in the Executive Office of the President. The 

National Security Council (NSC) is an establishment,4 and it is within the 

Executive Office of the President.5 Thus, NSC is within the plain language of 

the above definition and were it not for the legislative history of the 1974 

amendments it would have to be considered an Agency for FOIA purposes.

The Senate version of the 1974 amendments expanded the APA definition of 

“ agency” only by adding to it the U.S. Postal Service, the Postal Rate 

Commission, and “ any other authority of the Government of the United States 

which is a corporation and which receives any appropriated funds.” The Senate 

report explained this expanded definition of “ agency” as follows:

Section 3 expands on the definition of agency as provided in section 

551(1) of title 5. That section defines “ agency” as “ each authority 

(whether or not within or subject to review by another agency) of the 

Government of the United States other than Congress, the courts, or 

the governments of the possessions, territories, or the District of 

Columbia.” This definition has been broadly interpreted by the 

courts as including “ any administrative unit with substantial independent authority in the exercise of specific functions,” which in one 

case was held to include the Office of Science and Technology. 

Soucie v. David, 448 F. (2d) 1067, 1073 (1971).

Nonetheless, the U.S. Postal Service has taken the position that 

without specific inclusionary language, amendments to the FOIA 

“ would not apply to the Postal Service.” (Hearings, vol. II at 323.)

To assure FOIA application to the Postal Service and also to include 

publicly funded corporations established under the authority of the 

United States, like the National Railroad Passenger Corporation (45 

U.S.C. § 541), section 3 incorporates an expanded definition of

’This definition was added by the Freedom of Information Act Amendments of 1974, Pub. L. 

No. 93-502 § 3, 88 Stat. 1564. Prior to this amendment the FOIA definition of ‘'agency” was 

exclusively that of the Adm inistrative Procedure Act (APA), 5 U .S.C . 8 551(1). In relevant part 

§ 551(1) defines "ag en c y ” as

. . . each authority o f the Government of the United States, whether or not it is within or 

subject to review by another agency.

The amended definition has been incorporated into the Privacy Act of 1974. 5 U .S.C . § 552a(a)( I ) 

and the Government in the Sunshine Act, 5 U .S.C . 8 552b(a)(l).

4The term "establishm ent” is not defined in § 552(e) or elsewhere in the FOIA or APA. 

However, the NSC must be considered an establishment because of its 99-member staff. (Of these, 

69 are permanent em ployees o f the NSC; 30 are detailed from other agencies.) The NSC and its 

staff are easily identifiable as a body separate from other entities within the Executive Office of the 

President. Money is appropriated for it and it “ o w n s" its furniture, fixtures, and supplies. It pays its 

employees, keeps their administrative records, and handles its personnel matters. In short, it has a 

clear, independent administrative status.

’The NSC was created by the National Security Act of 1947, 61 Stat. 495. It was transferred to 

the Executive Office o f the President by Reorganization Plan No. 4 of 1949, 5 U .S.C. A pp., 14 F. 

R. 5227, 63 Stat. 1067.

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agency to apply under the FOIA. (S. Rept. No. 93-854, 93d Cong.,

2d sess. 33 (1974).]

The House version of the amendments also contained an expanded definition 

of the term “ agency.” This definition was broader and more explicit than the 

Senate’s version and it prevailed in conference to become, with slight 

modification, 5 U.S.C. § 552(e). Its language relating to establishments within 

the Executive Office of the President was identical to that agreed upon in 

conference. The House report explains the meaning of that language by citing 

examples of “ functional entities” included within it:

The term “ establishment in the Executive Office of the President,” 

as used in this amendment, means such functional entities as the 

Office of Telecommunications Policy, the Office of Management and 

Budget, the Council of Economic Advisers, the National Security

Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress 

through statute or by Executive order. [H. Rept. No. 93-876, 93d 

Cong., 2d sess. 8 (1974)] [Emphasis added.]

Speaking in more general terms the House report notes that the definition of 

“ agency” was expanded

. . . to include those entities which might not be considered agencies 

under Section 551(1) of title 5, U.S. Code, but which perform 

governmental functions and control information of interest to the 

public. [Id.]

The conference report, after explaining the differences between the Senate 

and House versions of the expanded definition of “ agency,” notes that “ The

conference substitute follows the House b ill.” H. Rept. No. 93-1200, 93d 

Cong., 2d sess. 14 (1974). [Emphasis added.] That report states that by the 

definition the conferees “ . . . intend[ed] to include within the definition of 

‘agency’ those entities encompassed by 5 U.S.C. § 551 and other entities 

including. . . . ” 6 Id. The report reveals that “ expansion of the definition of 

‘agency’ in this subsection is intended to broaden applicability of the Freedom 

of Information Act. . . . ” Id., at 15. In addition, the conference report deals 

specifically with the meaning of “ Executive Office of the President.” It states: 

With respect to the meaning of the term “ Executive Office of the 

President” the conferees intend the result reached in Soucie v. David,

448 F. (2d) 1067 (C.A.D.C. 1971). The term is not to be interpreted 

as including the President’s immediate personal staff or units in the 

Executive Office whose sole function is to advise and assist the 

President. [Id.]

A summary of the 1974 amendments and their history relating to the question 

whether Congress intended the NSC to be included in the FOIA definition of

'T he list following “ including" does not include the NSC, or any other unit in Executive Office 

of the President. Two entities are included by name. These are the United States Postal Service and 

the Postal Rate Com m ission, both of which were included by express language in the Senate 

version.

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“ agency” is as follows: (1) The language of the law is broad enough to be 

viewed as an expression of congressional intent that all establishments within 

the Executive Office of the President, including the NSC, be treated as 

Agencies for FOIA purposes 7 (2) The Senate report (and the Senate version of 

the legislation) continued to cover all Government entities included in the APA 

definition as interpreted by the courts. The black letter rule, as expressed in the 

Senate report, is that “ any administrative unit with the substantial independent 

authority in the exercise of specific functions” should be viewed as an Agency 

under the FOIA. This language was explicitly linked to Soucie v. D avid, 448 F. 

(2d) 1067 (D.C. Cir. 1971), involving a unit within the Executive Office of the 

President. (3) The House report shows an unequivocal intention to include NSC 

in the FOIA definition of Agency. (4) The conference report, while stating 

generally that the intent of Congress in redefining “ agency” was to expand the 

definition in order to broaden the applicability of the FOIA, declares that the 

conference bill follows the House version and expresses the specific intent that, 

with respect to the Executive Office of the President, entities within the “ result 

reached” in Soucie v. David be included, but that those constituting the 

President’s personal staff or “ whose sole function is to advise and assist the 

President” be excluded.

Thus, both the language of the Act and its explanation contained in the 

House report include, by literal application, the NSC as an Agency subject to 

the FOIA. The conference report, which states that the conferees followed the 

House version of the legislation, expresses the intent (as did the Senate report 

with respect to the term “ agency” as used in the APA) that—at least for 

entities in the Executive Office of the President—a functional approach be 

adopted. That is, an establishment within the Executive Office should not 

automatically be classified an Agency (nor automatically excluded), but should 

be treated as such only if it has the authority to function at least in part as an 

Agency.

There is a very substantial risk that the NSC would be held to be an Agency 

on the basis of the unambiguous language of the Act and the House Report. 

Under conventional standards of statutory interpretation a court would be 

justified in so holding on these grounds alone. We believe, nevertheless, that to 

determine whether the NSC is included within the FOIA definition we must 

apply the conference report’s test and examine whether the NSC is invested 

with “ substantial independent authority in the exercise of specific functions.” 8 

If it is either the President’s staff or a unit whose sole function is to advise and

7Although it is honored primarily in the breach, "th e plain meaning rule" of statutory 

construction in which legislative history is ignored still has some vitality. See. Ernst & Ernst v. 

Hochfelder, 425 U.S. 185, 201 (1976). Its application becomes more likely when the legislative 

history is more ambiguous than the statutory language being construed.

"We view the reference to the “ result reached" in Soucie v. David as a reference to the 

interpretation o f that case in the Senate report. That is, entities within the Executive Office of the 

President may be treated as Agencies for FOIA purposes if they have “ substantial independent 

authority in the exercise o f specific functions." An entity would not have substantial independent 

authority if it were either the President’s staff or a unit whose sole function is to advise and assist 

the President.

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assist9 the President, it should not be viewed as having substantial independent 

authority.

II. The National Security Council

The National Security Council was created by the National Security Act of 

1947, and together with its functions, records, property, personnel, and 

unexpended appropriations, allocations and other funds available or to be made 

available, was transferred to the Executive Office of the President by 

Reorganization Plan No. 4 of 1949, 5 U.S.C. App., 14 F. R. 5227, 63 Stat. 

1067. As presently constituted, the statutory body consists of the President, the 

Vice President, and the Secretaries of State and Defense. It has a staff of 99 (69 

permanent employees, 30 detailed from other departments) which, at present, 

is headed by a staff secretary.10

According to its statutory mandate

[t]he function of the Council shall be to advise the President with 

respect to the integration of domestic, foreign, and military policies 

relating to the national security so as to enable the military services 

and the other departments and agencies of the Government to 

cooperate more effectively in matters involving national security. [50 

U.S.C. § 402(a)]

The National Security Act also assigned to the NSC, under the heading 

“ additional functions, ” the following duties:

In addition to performing such other functions as the President may 

direct, for the purpose of more effectively coordinating the policies 

and functions of the departments and agencies of the Government 

relating to the national security, it shall, subject to the direction of the 

President, be the duty of the Council—

(1) to assess and appraise the objectives, commitments, and risks 

of the United States in relation to our actual and potential military 

power, in the interest of national security, for the purpose of making 

recommendations to the President in connection therewith; and

(2) to consider policies on matters of common interest to the 

departments and agencies of the Government concerned with the

9Within the context of the legislative history, which clearly expresses a general intent to expand 

the coverage of FOIA, “ assist’' must be read narrowly. W e do not believe that units within the 

Executive Office can be viewed as "assisting” the President, in the same sense that the word 

"assist" is used in the conference report, when they perform substantive governmental functions, 

even if the purpose o f their authority to perform such functions is to enable them to fulfill a primary 

role of assisting (or advising) the President. To conclude otherwise would make a dead letter of 

inclusion o f establishments within the Executive Office of the President within the definition o f an 

Agency for FOIA purposes, because the function of all the units within the Executive Office, and 

those of the Office itself is, in a broad sense, to assist the President.

,0Section 402(c) o f 50 U .S.C . directed that the NSC staff be headed by a Presidentially appointed 

Executive Secretary. This position, which in past administrations has often been filled by the 

President’s Assistant for National Security Affairs, is presently vacant. As a practical matter, 

however, under current operating procedures the NSC staff works for the President’s Assistant for 

National Security Affairs, in fact, if not in form.

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national security, and to make recommendations to the President in 

connection therewith. [50 U.S.C. § 402(b)]

The Council is further authorized to . . from time to time, make such 

recommendations and such other reports to the President as it deems appropriate or as the President may require.” 50 U.S.C. § 402(d).

The House report on the National Security Act comments that “ [t]his 

Council [the NSC] . . . gives us for the first time in our history a means for 

bringing together the responsible heads of Government charged with recommending 

and carrying out our foreign policies after making a careful appraisal of our 

domestic and military potentials.” H. Rept. No. 961, 80th Cong., 1st sess. 3 

(1947). The Senate report characterizes the Council as “ [essentially . . . an 

advisory body to the President with respect to the integration of domestic, 

foreign, and military policies, so as to enable the military services and other 

departments and agencies of the Government to cooperate more effectively in 

matters involving the national security.” S. Rept. No. 239, 80th Cong., 1st 

sess. 10 (1947). The Senate committee that reported favorably on Reorganization Plan No. 4 of 1949 stated flatly that “ [i]t [NSC] is an advisory body to the 

President and not one of the various agencies within the National Military 

Establishment.” S. Rept. No. 838, 81st Cong., 1st sess. 2 (1949). It also noted 

that ‘‘[t]he President as chairman controls NSC business . . . " id ., and that 

NSC and the National Security Resources Board (NSRB) “ were made advisory 

agencies to the President by the National Security Act of 1947.”

It is clear from the statutorily prescribed functions of the NSC, from the 

legislative history of the Act which created it, and from nearly contemporaneous congressional commentary that the Council’s intended function is to be 

primarily an advisory body to the President that would help him or her to plan 

the effective and efficient unitary utilization of those various Departments and 

Agencies of the Government that have responsibilities for the Nation’s security. 

The question is, however, whether NSC is vested with substantial independent 

authority in the exercise of specific functions or whether its sole function is to 

advise and assist the President.

In addition to the establishment of the NSC, the National Security Act of 

1947 created the Central Intelligence Agency (CIA). That Agency was 

“ established under the National Security Council,” 50 U.S.C. § 403(a), and is 

given certain duties “ under the direction of the National Security Council,” 50 

U.S.C. § 403(d), including the duty “ to perform such other functions and 

duties related to intelligence affecting the national security as the National 

Security Council may from time to time direct.” 50 U.S.C. § 403(d)(5).

The legislative history of the Act indicates that Congress intended the 

National Security Council to be the supervisory authority over the Central 

Intelligence Agency, by establishing the CIA “ under” the NSC and making it 

subject to the Council’s “ direction.”

According to the Senate report:

The Central Intelligence Agency provided for by Section 102 exists 

now as the Central Intelligence Group. The bill establishes the

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agency under the National Security Council and assigns to that

Council the supervisory authority and responsibility now exercised

by the National Intelligence Authority created by Executive Order of 

the President and composed of the Secretaries of State, War, and 

Navy. [S. Rept. No. 239, supra, at 10] [Emphasis added.]

The Executive order referred to in the Senate report was actually a Presidential 

directive. It provided, in pertinent part:

To the Secretary of State, the Secretary of War, and the Secretary 

of the Navy.

1. It is my desire, and I hereby direct, that all Federal foreign 

intelligence activities be planned, developed and coordinated so as to 

assure the most effective accomplishment of the intelligence mission 

related to the national security. I hereby designate you, together with 

another person to be named by me as my personal representative, as

the National Intelligence Authority to accomplish this purpose.

2. Within the limits of available appropriations, you shall each 

from time to time assign persons and facilities from your respective 

Departments, which person shall collectively form a Central Intelligence Group and shall, under the direction of a Director o f Central

Intelligence, assist the National Intelligence Authority. The Director 

of Central Intelligence shall be designated by me, shall be responsible 

to the National Intelligence Authority, and shall sit as a nonvoting 

member thereof.

3. Subject to the existing law, and to the direction and control of

the National Intelligence Authority, the Director of Central Intelligence shall: . . . .[Presidential directive of January 22, 1946, 3 CFR 

1080 (1943-1948 compilation)] [Emphasis added.]

In addition, the Senate report on Reorganization Plan No. 4 of 1949, while 

stating that NSC “ is an advisory body to the President,” recognized that “ [i]t 

also directs the Central Intelligence Agency which coordinates intelligence 

activities.” S. Rept. No. 838, supra, at 2, 4.

The National Security Council, which is an administrative unit" and is an 

establishment within the Executive Office of the President, has explicit 

statutory authority to supervise and direct the Central Intelligence Agency. We 

believe that NSC’s legal authority over the CIA constitutes substantial 

independent authority in the exercise of at least one (very important) specific 

function. Therefore, NSC is not a unit whose sole function is to advise or assist 

the President.

We have considered the possibility that NSC should be viewed as advisory 

only because the President, as a member, controls its actions and decisions. 

The argument runs that in all cases Council’s action must be viewed as 

Presidential action since the President will inevitably dominate in Council 

affairs. Thus, Council participation in national security matters is, at most, 

hortatory and not substantive. This argument fails for two reasons.

1 'See footnote 4, supra.

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The National Security Council was created by Congress as an entity distinct 

from the Presidency. It was transferred, still as a distinct entity, along with all 

of its functions to the Executive Office of the President by Executive Order No. 

12036. As a legal matter, then, the independent authority which it possesses, it 

possesses as the National Security Council. To the extent that the Council’s 

authority is exercised by the President,12 it may reasonably be viewed as 

exercised by him in his capacity as Chairman of the NSC.13

Even if it were sound to say that NSC is capable of assuming an advisory role 

only (because of the President’s statutory membership), the Council would not 

escape Agency status for FOIA purposes. From administration to administration, Presidents, invoking the authority granted them by 50 U.S.C. § 402(b) to 

assign to the NSC “ such other functions as the President may direct,” have 

themselves vested NSC committees on which they have retained membership, 

with legal authority to perform specific, substantive functions. Current examples are the two NSC committees created by PD/NSC-2, the Policy Review 

Committee (PRC) and the Special Coordination Committee (SCC), both of 

which are empowered by Executive order to perform important, substantive, 

and far-reaching governmental functions relating to intelligence matters and 

both of which are legally permitted to act without Presidential participation. See

Executive Order No. 12036 §§ 1-2 (PRC) and 1-3 (SCC), 43 F.R. 3674, 3675 

(1978). The existence of such delegated power14 in these committees (and other 

similar NSC committees which existed in prior administrations, such as the 303 

and 40 committees, the Committee on Foreign Intelligence (CFI), and the 

Operations Advisory Group (OAG), see Executive Order No. 11905 §§ 3b 

(CFI) and 3(c) (OAG), 41 F. R. 7703, 7707-7709 (1976)), prevent the NSC 

from being viewed as solely advisory and without legal authority to exercise 

specific governmental functions.

Important, too, is the common understanding that the NSC is a body having 

functions, power, and authority of its own and is not simply an alter ego of the 

President. This understanding was expressed by the President himself in his 

statement accompanying the promulgation of Executive Order No. 12036. He 

said:

The National Security Council and its two standing Committees—the 

Special Coordination Committee (SCC) and the Policy Review 

Committee (PRC)— will, short of the President, provide the highest 

level of review and guidance for the policies and practices of the 

Intelligence Community. [ 14 Weekly Comp, of Pres. Doc. 214 (Jan.

30, 1978)] [Emphasis added.]

i2NSC is subservient to the President as are all executive departments and agencies. This, 

however, does not mean that it, or they, are without independent authority.

l3Under current practice Presidential decisions on national security matters are promulgated by 

directives in a series entitled “ Presidential Directive (PD )/N SC .” See PD/NSC-I.

l4The fact that a Oovem m ent entity exercises only delegated powers does not prevent it from 

being treated as an Agency for FOIA purposes. Grumman Aircraft Engineering Corp. v. 

Renegotiation Board, 482 F. (2d) 710 (D .C . Cir. 1973), rev’d. on other grounds, 421 U .S. 168 

(1975).

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We conclude that there is a substantial risk that NSC could be held to be an 

Agency by a simple, literal application of the language of 5 U.S.C. § 552(c). In 

our opinion, the better approach is to examine whether NSC is within the 

exception from inclusion stated in the conference report. This requires 

examining whether NSC has substantial independent authority in the exercise 

of specific functions or whether it is simply an establishment in the Executive 

Office of the President whose sole function is to advise and assist the President. 

Since NSC is given statutory authority to supervise and direct the CIA and 

because of the NSC functions provided in Executive Order No. 12036, we 

conclude that it has independent legal authority to exercise specific functions 

and that, as a legal matter, it cannot be viewed as existing solely to advise and 

assist the President. It is not, therefore, within the exception of the conference 

report, and, being an establishment in the Executive Office of the President not 

within that exception, is an Agency for FOIA purposes.15

J o h n M . H a r m o n

Assistant Attorney General

Office of Legal Counsel

l5There is not a great deal o f equity in the position that NSC is not an Agency for FOIA purposes. 

NSC, although reserving the question of the applicability to it of FOIA, has staff members assigned 

to process FOIA requests in accordance with its published FOIA guidelines. See 40 F. R. 7316 

(1975), 32 CFR § 2101 (1976). Further, due to the nature of the work of the NSC and its staff it is 

clear that valid exemptions are available for the vast bulk of the material which constitutes NSC 

records. Yet, there may be records in the possession of the NSC staff which are not sensitive or 

advisory in nature and which may be of interest to the public, such as some fiscal records.

We have also considered whether NSC could raise a valid constitutional claim to general 

immunity from the FOIA, and we believe this possibility is very weak. Certain records o f the NSC 

could, if necessary, be protected by a claim o f executive privilege, but such a claim could not 

successfully be invoked to preclude Congress from opening to public view some NSC adm inistrative records and other nonsensitive records to which the claim could not reasonably attach. Nor 

could it be shown on evidence now available that the A ct's impact on NSC is so onerous that its 

ability to function in support o f the President will be impaired.

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