216 F.3d 1180 (D.C. Cir. 2000)
Natural Resources Defense Council, Inc., et al.,Petitionersv.Nuclear Regulatory Commission and United States of America, Respondents
No. 99-1383
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2000Decided July 14, 2000

On Petition for Review of a Regulation of the Nuclear Regulatory Commission
David E. Adelman argued the cause for petitioners.  With  him on the briefs were Eric R. Glitzenstein and Howard  Crystal.
Wendy M. Keats, Attorney, U.S. Department of Justice,  argued the cause for respondents.  With her on the brief  were David W. Ogden, Acting Assistant Attorney General,
Leonard Schaitman, Attorney, and John F. Cordes, Solicitor,  U.S. Nuclear Regulatory Commission.
Before:  Edwards, Chief Judge, Randolph and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
The National Resources Defense  Council, Inc. (NRDC)1 asks us to vacate a regulation, promulgated by the Nuclear Regulatory Commission, that defines  the term "meeting" for purposes of the Government in the  Sunshine Act, 5 U.S.C.     552b.  The Sunshine Act requires  that gatherings of members of certain agencies be open to the  public if they constitute "meetings" under the Act.  NRDC  argues that the Commission's regulation is inconsistent with  the text and legislative history of the statute.  It further  contends that the regulation is improper because it fails to  provide procedural safeguards necessary to facilitate effective  relief in the event that a meeting is improperly closed to the  public.


2
We deny the petition for review.  We are unable to accept  NRDC's first argument because the Commission has done  nothing more than adopt, verbatim, the Supreme Court's own  interpretation of the meaning of "meeting" under the Act, as  set forth in FCC v. ITT World Communications, Inc., 466  U.S. 463 (1984).  We are unable to accept the second argument because it conflicts with the Court's injunction against  imposing non-statutory procedural requirements on agency  decisionmaking, as set forth in Vermont Yankee Nuclear  Power Corp. v. NRDC, 435 U.S. 519 (1978).


3
* The Sunshine Act provides, with ten specified exemptions,  that "every portion of every meeting of an agency shall be  open to public observation."  5 U.S.C.     552b(b) (emphasis added).  It imposes procedural requirements to ensure, inter  alia, that advance notice is given to the public before agency  meetings take place.  See id.     552b(e).  It also imposes  procedural requirements an agency must follow before determining that one of the ten exemptions from the openness  requirement applies.  See id.     552b(d), (f).  However, neither the openness requirement, nor the related procedural  requirements, are triggered unless the governmental entity at  issue is an "agency," and unless the gathering in question is a  "meeting" of that agency.


4
For purposes of the Act, "agency" is defined as an executive branch authority or independent regulatory agency  "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such  position by the President with the advice and consent of the  Senate."  Id.     552b(a)(1) (cross-referencing 5 U.S.C.      552(e), subsequently redesignated     552(f)).  In addition, as  will become relevant in our later discussion of the ITT case,  the definition of "agency" extends to "any subdivision thereof  authorized to act on behalf of the agency."  Id.     552b(a)(1).The Nuclear Regulatory Commission is an agency covered by  the Act.  See Philadelphia Newspapers, Inc. v. NRC, 727  F.2d 1195, 1199-1200 (D.C. Cir. 1984).2


5
The Sunshine Act defines the term "meeting" as "the  deliberations of at least the number of individual agency  members required to take action on behalf of the agency  where such deliberations determine or result in the joint  conduct or disposition of official agency business...."  5  U.S.C.     552b(a)(2).  The Commission's original Sunshine Act  regulation, adopted in 1977, merely reproduced the language  of the statutory definition.  See 42 Fed. Reg. 12,875, 12,877  (1977).3  It also clarified the kinds of communications not  subject to the Act, explicitly excepting only social gatherings, and briefings of the Commission by outsiders where discussion was informational and without specific reference to pending Commission matters.  See id.  Under the 1977 regulation,  the Commission "treated every discussion of agency business  by three or more Commissioners, no matter how informal or  preliminary it might be, as a 'meeting' for Sunshine Act  purposes."  64 Fed. Reg. 24,936, 24,937 (1999).


6
In 1984, the Supreme Court decided ITT.  In the course of  its opinion, the Court said the following about the term  "meeting" under the Act:


7
This statutory language contemplates discussions thateffectively predetermine official actions.  Such discussions must be sufficiently focused on discrete proposalsor issues as to cause or to be likely to cause the individual participating members to form reasonably firm posi-tions regarding matters pending or likely to arise before the agency.


8
466 U.S. at 471 (citations and quotation marks omitted).  In  1985, noting the decision in ITT, the Commission issued an  "interim" rule that revised the definition of "meeting" by  appending the Supreme Court's definition, verbatim, to the  language of the prior regulation.  See 50 Fed. Reg. 20,889  (1985).  The 1985 rule stated:"Meeting" means the deliberations of at least a quorum of Commissioners where such deliberations determine orresult in the joint conduct or disposition of official Com-mission business, that is, where discussions are sufficiently focused on discrete proposals or issues as tocause or to be likely to cause the individual participating members to form reasonably firm positions regard-ing matters pending or likely to arise before the agency.


9
Id. at 20,891 (codified at 10 C.F.R.     9.101(c)) (new language  in italics).


10
The 1985 rule was controversial.  In response to criticism,  the Commission announced that it would not conduct nonSunshine Act discussions until it put into place procedures to  govern such discussions.  Before the Commission completed those procedures, the American Bar Association's Administrative Law Section announced its intention to consider the  issue, and the Commission decided to defer implementation of  the 1985 rule pending receipt of the ABA's views.  See 64  Fed. Reg. at 24,938.  In 1987, the ABA issued its recommendations, which urged federal agencies and courts to interpret  the term "meeting" as the Commission had proposed in  1985--by using the Supreme Court's language in ITT.  See  ABA Section of Administrative Law, Report to House of  Delegates (J.A. at 460).4  Despite the ABA's recommendations, the Commission took no further action.  Although the  "interim" rule of 1985 remained on the books, the agency  continued to apply its pre-1985 regulation.


11
In May 1999, the Commission published, for notice and  comment in the Federal Register, its intention to implement  the 1985 rule's definition of "meeting."  The Commission  stated that its purpose was "to bring the NRC's Sunshine Act  regulations, and the way they are applied by NRC, into closer  conformity with Congressional intent, as set forth in the  legislative history of the Sunshine Act and as clarified in  [ITT]."  64 Fed. Reg. at 24,936.  In the Commission's view,  Congress had "carefully weighed the competing considerations involved:  the public's right of access to significant  information, on the one hand, and the agencies' need to be  able to function in an efficient and collegial manner on the  other."  Id. at 24,939.  "Congress," the Commission said, had  "struck a balance:  it did not legislate openness to the maximum extent possible, nor did it provide unfettered discretion  to agencies to offer only as much public access as they might  choose."  Id.  The notice listed a number of examples of  topics that might be the subject of non-Sunshine Act discussions under the new rule, "so long as the discussion will not  effectively predetermine final agency action."  Id. at 24,941.The topics included:  "How well is the agency functioning,  what are our successes and failures, what do we see as major challenges in the next five and ten years, what is the state of  our relations with the public, industry, Congress, the press?"Id. at 24,941-42.5  A final order implementing the rule became effective on August 23, 1999.  64 Fed. Reg. 39,393  (1999).

II

12
This court has authority to set aside agency regulations  that are "not in accord with" the requirements of the Sunshine Act.  5 U.S.C.     552b(g).  That, NRDC contends, is  how the Commission's definition of "meeting" should be characterized.  We consider this contention below.


13
* In petitioner's view, the agency's definition of "meeting" is  fundamentally inconsistent with both the language and legislative history of the Act.  NRDC's argument concerning the  statutory language cannot be easily dismissed.  The Act  states that the term "meeting" means the deliberations of a  quorum of an agency, "where such deliberations determine or  result in the joint conduct or disposition of official agency  business."  5 U.S.C.     552b(a)(2) (emphasis added).  Selecting from the "or" clauses, the statutory definition of "meeting" would appear to include any deliberations that "result in  the joint conduct ... of official agency business," even if they  do not "determine" either the joint conduct or disposition of  that business.  The Commission's definition, on the other  hand, is limited to deliberations that are "likely to cause the  individual participating members to form reasonably firm  positions regarding" the matter--that is, to deliberations that  "effectively predetermine final agency action."  64 Fed. Reg.  at 24,941.  Indeed, the Commission's examples of what it  regards as outside the scope of "meetings" demonstrate the  potential divergence between its definition and the literal statutory language.  As NRDC argues, surely formal agency  discussions of "how well" the agency is functioning, of its  "successes and failures," of its "major challenges in the next  five and ten years," and of the state of its "relations with the  public, industry, Congress, [or] the press" qualify as the  "joint conduct of official agency business," even if they do not  predetermine agency decisions.6


14
Nor are NRDC's arguments concerning legislative intent  frivolous.  As petitioner points out, the Act begins with a  declaration of policy that "the public is entitled to the fullest  practicable information regarding the decision making processes of the Federal Government."  Pub. L. No. 94-409,     2,  90 Stat. 1241, 1241 (1976).7  In our own decision below in ITT,  we made the same point.  See 699 F.2d 1219, 1243 (D.C. Cir.  1983) ("[T]he Act's presumption of openness requires that all  doubts be resolved against closure."), rev'd, 466 U.S. 463  (1984).  NRDC also notes that in an opinion issued prior to  the Supreme Court's decision in ITT, this court pointed out  that the Sunshine Act, unlike the Freedom of Information Act  (FOIA), 5 U.S.C.     552, lacks an express exemption for  predecisional matters.  See Common Cause v. NRC, 674 F.2d  921, 929 (D.C. Cir. 1982);  see also ITT, 699 F.2d at 1241  ("The broad sweep of the Sunshine Act does not support a  distinction between an agency's predecisional actions and its  post decisional efforts to implement, interpret, and promote its policies.").8  And NRDC emphasizes, as we did in the  decision reviewed by the Supreme Court in ITT, that the  examples the legislative history provides of discussions excluded from the Act are largely limited to "passing references  to agency business at social gatherings, casual background  conversations in offices and corridors, banter at the golf  course, and breakfast or luncheon discussions among members about the day's business."  699 F.2d at 1243 (footnotes  omitted).9  All of this, petitioner argues, supports the notion  that Congress intended to except only "casual" conversation  from the definition of "meeting"--not formal discussions  about the agency's business, even if such discussions are not  likely to be predeterminative.


15
NRDC acknowledges that the Senate Report on the Sunshine Act declares that "... the agency must be careful not  to cross over the line and engage in discussions which effectively predetermine official actions."  S. Rep. No. 94-354, at  19 (1975).  But petitioner contends that the Commission cites  this sentence out of context, as it comes from a passage that  discusses the particular problems of three-member agencies, in which any two members would necessarily constitute a  quorum.10  Indeed, the full sentence begins with the words,  "When two members constitute a quorum," which fill the  space indicated by the ellipses above.  NRDC argues that  Congress did not intend the sentence to apply outside the  three-member agency context, and that it therefore has no  application to the five-member Nuclear Regulatory Commission.  But see infra note 12.


16
In short, were we authorized to decide the validity of the  Commission's definition of "meeting" de novo, NRDC's arguments would give us some pause.  NRDC contends that we  are in fact so authorized, because courts do not accord  deference to an agency's statutory interpretation where the  statute at issue, like the Sunshine Act, "impose[s] general  obligations on [many] governmental agencies."  NRDC v.  Defense Nuclear Facilities Safety Bd., 969 F.2d 1248, 1250-51  (D.C. Cir. 1992).11  But while we may not have to defer to the term "meeting" under  the Act.  See Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, views of the Nuclear Regulatory Commission, the views of the  Supreme Court are another matter.  Because the Commission's definition is taken in haec  verba from the Court's  unanimous opinion in ITT, we now turn to an examination of  that case.

B

17
The question before the Court in ITT was whether the  Sunshine Act applied to informal international conferences  attended by members of the Federal Communications Commission (FCC).  The conferences, referred to as the Consultative Process, were intended to facilitate joint planning of  telecommunications facilities.  In the hope of persuading  European nations to cooperate with its policy of encouraging  competition in overseas telecommunications services, the  FCC added the topic of new carriers and services to the  agenda.  See 466 U.S. at 465.  ITT, which opposed the entry  of new competitors, contended that the Consultative Process  sessions constituted "meetings" of the FCC and that the  Sunshine Act therefore required that they be held in public. See id. at 465-66.  This circuit agreed.  See ITT, 699 F.2d at  1246-50.  The Supreme Court, however, reversed, holding  that "the participation by FCC members in these sessions  constitutes neither a 'meeting' as defined by     552b(a)(2) nor  a meeting 'of the agency' as provided by     552b(b)."  ITT,  466 U.S. at 469.


18
Writing for the Court, Justice Powell undertook an examination of the Sunshine Act's legislative history in order to  determine the appropriate definition of the word "meeting."As the Nuclear Regulatory Commission does here, he emphasized those portions of the history suggesting an intent to  balance the interest in openness with administrative concerns."[I]n drafting the Act's definition of 'meeting,' " the Court  said, Congress "recognized that the administrative process cannot be conducted entirely in the public eye."  466 U.S. at  469.  Quoting the Senate Report, the Court continued:" '[I]nformal background discussions [that] clarify issues and  expose views' are a necessary part of an agency's work."  Id.  (quoting S. Rep. No. 94-354, at 19).  Because it believed that  applying the Act in such contexts "would prevent such discussions and thereby impair normal agency operations," the  Court concluded that the Act's definition did not encompass  them.  Id.


19
In a footnote, Justice Powell examined the evolution of the  statutory language defining the term "meeting."  That evolution, he said, "reflects the congressional intent precisely to  define the limited scope of the statute's requirements."  Id. at  470 n.7.  In particular, he noted that "the Senate substituted  the term 'deliberations' for the previously proposed terms-'assembly or simultaneous communication' or 'gathering'--in  order to 'exclude many discussions which are informal in  nature.'  S. Rep. No. 94-354, at 10."  Id. (other citations  omitted). Justice Powell also noted that although "earlier  versions of the Act had applied to any agency discussions that  'concer[n] the joint conduct or disposition of agency business,' " the final version applied "only to deliberations that  'determine or result in' the conduct of 'official agency business.' "  Id. (citations omitted).  "The intent of the revision,"  he inferred, "clearly was to permit preliminary discussion  among agency members."  Id. (citations omitted).


20
Finally, the Court turned to the same passage of the  Senate Report that we referred to at the end of Part II.A  above--the passage NRDC contends applies only to three member agencies.  Relying on that language, the Court concluded that the statutory definition of "meeting" "contemplates discussions that 'effectively predetermine official actions.' "  Id. at 471 (quoting S. Rep. No. 94-354, at 19).  This  conclusion was stated without qualification--without any suggestion that it was limited to three-member agencies.  To the  contrary, the Court went on to endorse a definition of "meetings" recommended for all agencies in the Interpretive Guide  published by the Office of the Chairman of the Administrative  Conference of the United States (ACUS):


21
Such discussions must be "sufficiently focused on discrete proposals or issues as to cause or to be likely tocause the individual participating members to form reasonably firm positions regarding matters pending orlikely to arise before the agency."  R. Berg & S. Klitz-man, An Interpretive Guide to the Government in theSunshine Act 9 (1978).


22
Id.12  This is the definition that the Nuclear Regulatory  Commission subsequently adopted as its own definition of  "meeting," and that NRDC now challenges as unlawful.


23
Having settled upon a definition of "meeting," ITT then  applied it to the Consultative Process sessions at issue in the  case.  The Court noted that the three FCC commissioners  who attended those sessions constituted a quorum of the  FCC's Telecommunications Committee, to which the Commission had delegated the power to approve applications for  common carrier certification.  The Committee was therefore  a " 'subdivision ... authorized to act on behalf of the agency' " with respect to such applications, and hence was itself an  "agency" within the Sunshine Act's definition.  466 U.S. at  470-71 (quoting 5 U.S.C.     552b(a)(1)).  But while the Court  found the Committee to be covered by the Act, it concluded  that the members had not engaged in discussions that effectively predetermined official actions.  The Court noted that  ITT had "alleged neither that the Committee formally acted  upon applications for certification at the Consultative Process  sessions nor that those sessions resulted in firm positions on particular matters pending or likely to arise before the Committee."  Id. at 471.  Rather, the Court said, "the sessions  provided general background information" and permitted the  commissioners to engage in an exchange of views with their  foreign counterparts "by which decisions already reached by  the Commission could be implemented."  Id. at 472.


24
Justice Powell did note that this court had reached a  contrary result.  He observed, however, that we had done so  not by finding that the commissioners were deliberating  "upon matters within their formally delegated authority"-i.e., applications for certification--but rather upon matters  within some "undisclosed authority, not formally delegated, to  engage in discussions on behalf of the Commission."  Id. at  472.  Such deliberations, the Supreme Court said, are not  covered by the Sunshine Act at all.  Again quoting the  definition of "agency" rather than "meeting," the Court noted  that the only covered deliberations are those by a " 'subdivision ... authorized to act on behalf of the agency.' "  Id. at  472 (quoting, without citation,     552b(a)(1)).  The Act only  applies, the Court said, "where a subdivision of the agency  deliberates upon matters that are within that subdivision's  formally delegated authority to take official action for the  agency."  Id.  Because "the Telecommunications Committee  at the Consultative Process sessions did not consider applications for common carrier certification--its only formally delegated authority-... the sessions were not 'meetings' within  the meaning of the Sunshine Act."  Id. at 473.

C

25
On its face, the Supreme Court's decision in ITT would  appear to end this appeal, as the definition of "meeting"  adopted by the Nuclear Regulatory Commission is the same  as that endorsed and applied by the Court in that case. NRDC contends, however, that for a number of reasons ITT  is a much narrower opinion than the Commission believes it  to be, and that the decision's definition of "meeting" is at best  unauthoritative dictum--unnecessary to its holding and nonbinding upon this court.


26
NRDC argues, first, that ITT involved only the limited  question of whether the Sunshine Act applies where fewer  than a quorum of the agency's members attend international  conferences, and where those members have not been "formally delegated authority to take official action for the agency."  NRDC Br. at 25 (quoting ITT, 466 U.S. at 472).  The  Supreme Court's "central rationale," petitioner contends, was  that the Act "applies only where a subdivision of the agency  deliberates upon matters that are within that subdivision's  formally delegated authority."  Id. (quoting ITT, 466 U.S. at  472-73). Because the Telecommunications Committee lacked  delegated authority to deliberate on the business discussed at  the conferences, the Act did not apply.  The Court's other  language, petitioner suggests, was simply dictum.


27
As our description of ITT makes clear, however, this was  not the central--or even a sufficient--rationale for the  Court's decision.  Before considering the Committee's discussions on subjects as to which it did not have delegated  authority, the Court first addressed those as to which it did: namely, applications for common carrier certification.  As to  any discussions on that subject, the Court concluded that the  Committee had not participated in "meetings" because--in  the words of the Interpretive Guide and now of the Commission's rule--such discussions were not "likely to cause the  individual participating members to form reasonably firm  positions regarding matters pending or likely to arise before  the agency."  466 U.S. at 471.  It was only when the Court  went on to examine the rationale of this court below that it  considered the Committee's discussions on subjects as to  which it did not have delegated authority, and found those  discussions to be outside the Act.  Because that finding could  not have sufficed to resolve whether discussions as to which  the committee did have authority constituted meetings, the  definition the Court relied upon to decide that question  cannot be characterized as dictum.


28
NRDC also contends that in applying its definition of  "meeting," the Court faced only the narrow question of  whether discussions on topics that the Commission had already decided were included.  Petitioner is correct that the  discussions in ITT did involve an "exchange of views by which  decisions already reached by the Commission could be implemented."  Id. at 472.  But the Court only relied on that fact  to conclude that the discussions did not "result[ ] in firm  positions on particular matters pending or likely to arise  before the Committee"--i.e., that the discussions necessarily  could not have "predetermined" official decisions because the  decisions had already been made.  Id. at 471.  The Court  gave no hint that its opinion was limited to this unique  situation, and nothing in the Court's definition of "meeting,"  or in the Interpretive Guide upon which it was based, supports such a reading.  Although ITT may be factually distinguished from the instant case on this ground, we are not free  to turn every factual distinction into a reason for ignoring the  Supreme Court's considered guidance.


29
NRDC does correctly point out that there was a second,  truly independent ground for the Court's decision in ITT-one to which we have averred, but not yet described.  In a  single paragraph at the end of the opinion, the Court concluded that not only were the Consultative Process sessions not  "meetings" within the meaning of the Sunshine Act, they  were also not meetings of an "agency."  The international  sessions were not meetings of an "agency," the Court said,  because the FCC did not convene them and could not unilaterally control their procedures.  Id. at 473.


30
There is no question that this rationale was an independent  basis for the Supreme Court's decision:  to come within the  Sunshine Act, discussions must be both "meetings" and meetings of an "agency," and the Court concluded that the Consultative Process sessions were neither.  See id. at 469.  Nonetheless, "where there are two grounds, upon either of which  an appellate court may rest its decision, and it adopts both,  'the ruling on neither is obiter [dictum], but each is the  judgment of the court, and of equal validity with the other.' "Dooling v. Overholser, 243 F.2d 825, 828 (D.C. Cir. 1957)  (quoting United States v. Title Ins. & Trust Co., 265 U.S. 472,  486 (1924));  see Woods v. Interstate Realty Co., 337 U.S. 535, 536 (1948) ("Where a decision rests on two or more grounds,  none can be relegated to the category of obiter dictum.").Moreover, even if the Court's reliance on two independent  grounds rendered each dictum, we would still be bound by its  interpretation of the term "meeting," since " '[c]arefully considered language of the Supreme Court, even if technically  dictum, generally must be treated as authoritative.' "  United  States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (quoting  Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861  n.3 (1st Cir. 1993));  see also Bangor Hydro-Elec. Co. v.  FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).  As our above  recitation of ITT makes clear, the Supreme Court's language  was carefully considered, following as it did the Court's  detailed review of the Act's legislative history and its adoption  of the formulation in ACUS' own detailed guide.


31
Finally, NRDC contends that the Commission's definition  will undermine the purposes of the Act.  Petitioner argues  that the Commission's definition should be vacated because it  eliminates an "objective" rule and replaces it with a "vague,  wholly subjective standard" that, if permitted to stand, "will  fatally undermine the Sunshine Act" and "make abuse inevitable."  NRDC Br. at 11, 23.  It is impossible to conceive,  NRDC argues, that the kinds of discussions the Commission  describes as non-meetings could occur without at least one  commissioner formulating a reasonably firm position on a  matter before the agency.  Thus, petitioner urges, the Commission's rule "is contrary to the Act."  Id. at 24.


32
In many ways, NRDC's argument echoes points made by  this court in its decision below in ITT.  See 699 F.2d at 1244.In its own decision, however, the Supreme Court instructed  that the definition now adopted by the Commission is the one  that Congress itself intended.  Because the Commission's  definition is therefore that of the Act itself, it neither can be  contrary to the Act nor can it fatally undermine it.13

III

33
In the alternative, NRDC argues that even if the Commission's rule is consistent with the statutory definition, we  should "find it illegal for the NRC to implement the rule  without minimal procedural safeguards," such as maintaining  complete records of all closed, non-Sunshine Act discussions. NRDC Br. at 13.  Such procedures are necessary, petitioner  maintains, because the Commission cannot be trusted "to  determine unilaterally when they are starting to form 'reasonably firm positions'--and hence when public access is  required."  Id.  Without a contemporaneous written record,  judicial review of whether the agency is improperly closing  meetings will assertedly not be possible.


34
NRDC does not argue that its proposed procedures are  required by the Sunshine Act itself, and they plainly are not. As the Senate Report made clear:  "Any meeting falling  outside the definition [in     552b(a)] is not subject to any of  the other provisions of the bill."  S. Rep. No. 94-354, at 19.This dooms petitioner's challenge because, under the Supreme Court's decision in Vermont Yankee, " 'absent constitutional constraints or extremely compelling circumstances'  courts are never free to impose on the NRC (or any other  agency) a procedural requirement not provided for by Congress."  Union of Concerned Scientists v. NRC, 920 F.2d 50,  53 (D.C. Cir. 1990) (quoting Vermont Yankee, 435 U.S. at  543);  see also Envirocare of Utah, Inc. v. NRC, 194 F.3d 72,  78 (D.C. Cir. 1999).  The Commission is, of course, at liberty  to adopt additional procedures in the exercise of its discretion, see Vermont Yankee, 435 U.S. at 524, and in this case it  has done so:  The agency has undertaken to keep a record of  the date, subject, and participants for any scheduled non Sunshine Act discussions among a quorum of commissioners  for an initial six month period, and has stated that it will not  discontinue this practice without advance notice to the public. See 64 Fed. Reg. at 39,395;  see also 64 Fed. Reg. at 24,942.We, however, are without authority to impose such procedural requirements against the Commission's will.


35
In response to the obstacle posed by Vermont Yankee,  NRDC makes two arguments based on analogies to litigation  under FOIA.  First, it notes that when an agency claims that  documents are not covered by FOIA, a court may conduct an  in camera review to assess the validity of the agency's claims.See, e.g., Spirko v. United States Postal Serv., 147 F.3d 992,  996 (D.C. Cir. 1998).  The distinctions between in camera  review and the procedures requested by NRDC, however, are  plain.  In camera review is expressly authorized by FOIA,  see 5 U.S.C.     552(a)(4)(B),14 as it is by the Sunshine Act, see  id.     552b(h)(1).  Moreover, in camera review of an agency's  records does not require the agency to add any administrative  procedures or create any new documents;  requiring the  Commission to keep minutes of its non-Sunshine Act discussions would do both.


36
Second, NRDC points out that in FOIA litigation, this  circuit requires an agency to provide a plaintiff with a  "Vaughn index," a description of and detailed justification for  the non-disclosure of each withheld document.  See Vaughn v.  Rosen, 484 F.2d 820 (D.C. Cir. 1973);  see also Spirko, 147  F.3d at 997-98.  But while this judicial rule does require an  agency to create a document (the index) that would not  otherwise exist, it is a rule that governs litigation in court and  not proceedings before the agency.  In particular, it is a rule  the circuit imposed because FOIA itself places the burden on  the agency to sustain the lawfulness of specific withholdings  in litigation.  See Vaughn, 484 F.2d at 825-26, 828;  see also 5  U.S.C.     552(a)(4)(B).  The Sunshine Act likewise imposes  the burden of justifying specific closures on the agency, and  expressly authorizes the court to "take such additional evidence as it deems necessary" to decide such cases.  5 U.S.C.     552b(h)(1).  But this authorization, like the analogous one  in FOIA, applies only to suits charging violations of the Act  with respect to specific agency meetings15--not to petitions  like this one, which challenge an agency's implementing regulations on their face.16  Neither Vaughn, nor the Sunshine  Act, authorizes this court to impose additional procedures on  the conduct of administrative rather than judicial proceedings.

IV

37
Because the Supreme Court's decision in ITT renders  petitioner's challenge to the Commission's definition of "meeting" unavailing, and because the Court's decision in Vermont  Yankee bars us from imposing the additional procedural  requirements NRDC seeks, the petition for review is denied.



Notes:


1
  NRDC is joined by a number of other public interest groups. For ease of reference, this opinion will refer to these parties  collectively as "NRDC" or "petitioner."


2
  The Nuclear Regulatory Commission is composed of five  members appointed by the President and confirmed by the Senate. See 42 U.S.C.     5841.


3
  The Sunshine Act requires each covered agency to promulgate implementing regulations.  See 5 U.S.C.     552b(g).


4
  The Administrative Law Section issued its recommendations  in 1986;  the ABA adopted them in February 1987.  See 64 Fed.  Reg. at 24,938.


5
  The Commission subsequently advised Congress and this  court that discussions focused on specific pending matters, such as  licensing and restart authorizations, will not take place except in  "meetings" covered by the Sunshine Act.  See NRC Br. at 36;  see  also J.A. at 240, 245, 357 (letters to members of Congress).


6
  Even on a literal reading, however, it is not enough that  discussions constitute joint conduct of official business;  to come  with the term "meeting," such discussions must be "deliberations"  that "result in" such joint conduct.  5 U.S.C.     552b(a)(2).


7
  See also H.R. Rep. No. 94-880, pt. 1, at 2 (1976) ("Absent  special circumstances, there is no reason why the public should not  have the right to observe the agency decision making process first  hand.").  The Commission notes, however, that the Act's declaration  of policy goes on to state that "the purpose of this Act [is] to  provide the public with such information while protecting the rights  of individuals and the ability of the Government to carry out its  responsibilities."  Pub. L. No. 94-409,     2, 90 Stat. at 1241.


8
  The Commission argues that "predecisional" is not necessarily  synonymous with "predeterminative," the adjective it uses for drawing the line between meetings and nonmeetings.  According to the  agency, under its definition " 'predecisional' matters fall on both  sides of the Sunshine Act divide."  NRC Br. at 38 n.18;  see also  Common Cause, 674 F.2d at 930 (" 'The meetings opened by [the  Act] are not intended to be merely reruns staged for the public  after agency members have discussed the issue in private and  predetermined their views.' ") (quoting S. Rep. No. 94-354, at 18  (1975)) (emphasis added).  Common Cause did not address the  definition of "meeting" under the Act, but rather whether any of the  Act's express exemptions authorized the closure of budget discussions that were conceded to be meetings.  See 674 F.2d at 926.


9
  See also S. Rep. No. 94-354, at 18 ("[B]rief references to  agency business where the Commission members do not give serious attention to the matter do not constitute a meeting.");  122  Cong. Rec. 28,474 (Aug. 31, 1976) (remarks of Rep. Fascell) (stating  that the definition of "meeting" "is intended to permit casual  discussions between agency members that might invoke the bill's  requirements under the less formal 'concern' standard").


10
 The passage reads as follows:
In three-member agencies, two members will constitute aquorum....  It is not the intent of the bill to prevent any two agency members, regardless of agency size, from engaging in informal background discussions which clarify issues and ex-pose varying views.  When two members are less than aquorum, such discussions would not in any event come under the section's open meeting requirements.  When two members constitute a quorum, however, the agency must be careful not to cross over the line and engage in discussions which effective-ly predetermine official actions
S. Rep. No. 94-354, at 19.


11
  See Reporters' Comm. v. Dep't of Justice, 816 F.2d 730, 734  (D.C. Cir. 1987) (applying de novo review to agency interpretation  of FOIA), rev'd on other grounds, 489 U.S. 749 (1989);  see also  Salleh v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996) (declining to  accord deference where multiple agencies were granted authority to  interpret same statute).  The customary deference mandated by  Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), would not apply  here in any event because, as discussed below, the Supreme Court  has already determined the meaning of the 131 (1990) ("Once we have determined a statute's clear meaning, we  adhere to that determination under the doctrine of stare decisis,  and we judge an agency's later interpretation of the statute against  our prior determination of the statute's meaning.").


12
  The Supreme Court noted that "the Office of the Chairman  of the Administrative Conference of the United States prepared the  Interpretive Guide at Congress' request,     552b(g), and after extensive consultation with the affected agencies."  466 U.S. at 471 n.10.The ACUS guide expressly rejected the suggestion that the quotation from the Senate Report was limited to three-member agencies:"[T]he passage necessarily has broader application, since there is  nothing in the statute which supports a special definition of 'meeting' for agencies where two members make up a quorum."  Interpretive Guide at 6.  We agreed with that view in our opinion below  in ITT.  See 699 F.2d at 1243 n.163 (quoting Interpretive Guide at  6).


13
  For like reasons, we reject NRDC's suggestion that we  vacate the Commission's definition because "there is no prospect  that it will solve the NRC's purported 'collegiality' deficit, which is  the ostensible rationale for the rule making."  NRDC Br. at 28.


14
  The express authorization was not added to FOIA until 1974.See Pub. L. No. 93-502,     B(2), 88 Stat. 1561, 1561-62 (1974)  (codified in relevant part at 5 U.S.C.     552(a)(4)(B)).  Previously,  trial courts conducted such reviews on the rationale noted in the  text below:  i.e., in their role as triers of fact endeavoring to  determine whether the government had met its burden of justifying  specific nondisclosures.  See Vaughn v. Rosen, 484 F.2d 820, 825  (D.C. Cir. 1973).


15
  Section 552b(h)(1) grants district courts jurisdiction over  actions "to enforce the requirements" of the Act.  "Such actions  may be brought by any person against an agency prior to, or within  sixty days after, the meeting out of which the violation of this  section arises...."  5 U.S.C.     552b(h)(1).  In such cases, the  "burden is on the defendant to sustain his action," and the court  may make in camera examinations "and may take such additional  evidence as it deems necessary."  Id.


16
  See 5 U.S.C.     552b(g).  This section authorizes any person  to "bring a proceeding in the United States Court of Appeals for  the District of Columbia to set aside agency regulations" promulgated to implement the requirements of the Act.


