investigation, to which my company is not a party. My experience has been that separation of functions is not applied in ratemaking matters by the Board.

I have had several cases where it is perfectly obvious that it was not being applied, and the statute does not now require that it be applied.

Section 5(c) says that this subsection shall not apply to proceedings involving the validity or application of rates.

If the Board has so interpreted that section, I made the suggestion yesterday that I thought the separation of functions should apply, and I would most definitely like to repeat that suggestion here today, because these are very highly litigated matters. They are good indications where the interests of the parties are sharply conflicting, and I believe that the carrier should have an opportunity to know what the staff is presenting and to face their arguments in public.

Mr. DURFEE. Mr. Chairman, I was talking about a contested adversary rate case.

As to the general passenger fare investigation, in that case I reiterate that the Board has rigidly applied the doctrine of the separation of functions.

I am merely making this point to point out that this committee can well consider the tremendous workload that every one of these agencies is now faced with. I, for one, am not opposed to change, but I think when you talk about the judicialization of the process, to make these agencies more like courts, Mr. Chairman, this agency is not a court. The Congress of the United States said to this agency something that it has never said to any court: "You promote, develop, and encourage aviation."

That is not a judicial function, and, within the area that you have assigned us, it is our obligation to promote, develop, and encourage a system of air transportation adequate for this country. That is a directive of the Congress.

When you say that you are going to put that within a judicial straitjacket, I say that if you do this you will have to pay a tremendous price of time, effort, and money.

Mr. VERNER. Mr. Chairman, may I make a brief comment?
The CHAIRMAN. Yes, Mr. Verner.

Mr. VERNER. I have some sympathy with the chairman's view that there should be no further straitjacketing of the Board in an effort to bring it into judicial concept. I am not clear, though, as to whether in, for instance, the passenger fare investigation, which involves all of the domestic trunklines, it would be proper or whether the Congress or the industry would feel that fair play were being experienced if the Board were to depart from its present practice, which I think is a good practice, that those members of its staff who have taken part in litigation who have adopted partisan positions, even though motivated by the public interest in adopting those positions, will not be allowed to participate with the Board in its deliberations on the outcome of the proceeding.

There are two courses which the Board can follow, it seems to me, perfectly validly in that kind of a situation.

One of them is for its staff not to take any position in the proceeding, or its staff to serve purely in an advisory capacity to the Board, but not in the adversary nature.

The second one is for its staff to participate fully in the proceeding in an adversary nature, develop its case, and then let the Board make the decision without any help from it.

I think the latter is without any help in deliberation, so to speak. I think the latter proceeding in a case such as a general passenger fare investigation is desirable because otherwise there is a possibility, since the carriers generally want an increase in the face, that nobody will develop the other side adequately. I think the staff performs a useful function, but it should not be allowed to litigate the matter in the private sessions of the Board.

I think the Board might consider, in order to free some of its staff members, whether it would not be possible to participate formally in fewer cases and select only those cases where the litigants who are already there will not be able to develop all sides of the record. The CHAIRMAN. Mr. Burt.

Mr. BURT. Of course, what we are all interested in here is intelligent and conscientious decisions by the Board, and it seems to me that there are three things that are necessary to that.

The main question, the Board faces it seems to me, is that it just doesn't have time to give full deliberation to all the decisions it must make.

I think all of us who practice before the Board are aware of the oppressive workload that the Board has in deciding complex cases with thousands of pages of record.

To meet that problem, it would seem to me that Chairman Durfee's suggestion of a seven-man Board is an excellent suggestion which would have two advantages:

One, when members are assigned to international negotiations, for example, it would not cripple the Board as it does today, and the remaining members would have more time to spend on decisions.

Secondly, it makes possible a panel system which splits up decisions, the decisions of the Board, so that each individual member has less decisions and can spend more time on them.

The third suggestion I have is this: that I think it would be very unwise to put rigid separation of function provisions by statute in anything affecting the Civil Aeronautics Board.

I realize that many members of the bar disagree with me and I have always stood in a corner at bar association meetings when I make this point, but the fact is that the Board is too busy to understand fully all the record in the case and they have to rely on the staff.

The fact is that the expertise of the Board comes generally from the staff itself, and that is particularly true with the rapid turnover we have had in Board members.

As far as I am concerned, I believe if the Board is to make intelligent decisions, it has to have access to all the talent and expertise and knowledge it can get in the staff.

The only alternative is to set up two separate staffs, one dealing with decisions, one dealing with process of cases, and I don't believe Congress will do that. That is an expensive proposition.

As far as I am concerned, I would like the Board to have access to its staff pretty fully, and I will take a chance on the separation of functions problem.

The CHAIRMAN. Mr. Brown, I notice you have a statement that you had prepared.

Mr. Ĥ. T. BROWN. There is nothing further with respect to the statement.

The CHAIRMAN. We might include this in the record at an appropriate place if you like.

(Prepared statement of H. Templeton Brown is reproduced at the end of the Civil Aeronautics Board discussion.)

Mr. H. T. BROWN. I think in the first place, it was directed largely to the first two topics.

Mr. DURFEE. Mr. Chairman, may I conclude with one comment? I want to offer something for the record.

Yesterday we were discussing this gray area between the adjudicatory case and the rulemaking case. I was pointing out the difficulty of drawing a line of demarcation as related to ex parte communications. We have had our General Counsel prepare a tabulation of the various types of provision that come before the Board with the indications as to (1) whether it involves rulemaking or adjudication, or both, (2) whether or not it requires a hearing, and (3) whether there are adversary parties represented in the proceedings.

I think you will find that we have 10 general classifications of proceedings which require a hearing. We have 17 general classifications which, under the Administrative Procedure Act or the present rules of the Board, do not require a hearing.

I offer this, Mr. Chairman, for the purpose of illustrating the fact that the definition of "adjudication" and "rulemaking" in the Administrative Procedure Act is not a definition which is well-adapted to drawing a line on ex parte communications.

I would like to offer that tabulation.

The CHAIRMAN. Let it be received for the record.

(Tabulation referred to is reproduced at the end of the Civil Aeronautics Board discussion.)

Mr. DURFEE. That concludes my statement.

The CHAIRMAN. Mr. Brown, you did not get to say what you intended to.

Mr. H. T. BROWN. I think I agree with what everyone else has suggested, that an enlargement of the size of the Board would be helpful. I think that is true particularly in areas where one Board member can conduct or can perform certain functions rather than a group.

I am not so certain about this panel proposition. My experience is that where you have a panel decision and then a right of appeal to the full Board, you do not save too much time.

Furthermore, I think in an important rate or licensing proceeding that all members of the Board should participate and that you should not have the variance between the views of this three or that three. To me that one part is very important.

Also, I usually agree very much with Mr. Burt, who I think has a very intelligent approach. However, I can't agree with him at all on elimination of the segregation of functions.

I recognize the difficulties that that presents. I recognize that it increases procedural difficulties and cost. Nevertheless, where you have an important proceeding and where the staff as a whole takes

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a position, to permit the staff to have constant access to the Board in an adversary capacity, and Mr. Burt has suggested that the Board does not have the expertise that they may need, it seems to me he is suggesting that you use the expertise of a staff that has already adopted one position. I don't think that that gives you a fair opportunity to reach a decision for proceeding. That is not what the Board does.

I am not suggesting that there is anything improper in the segregation of functions as it exists today. I am suggesting that what is true today should be true in the future.

The CHAIRMAN. Mr. de Voursney.

Mr. DE VOURSNEY. I have nothing to add to Mr. Brown's comments on this point, but I agree that we must have separation, and that the opportunities within the Board for influencing of opinions, even on an unintentional basis, are very substantial.

The car pool is one of the most effective means of communication within the Board, and I don't see how you gentlemen are going to legislate against the car pools.

The CHAIRMAN. Gentlemen, a good deal of time yesterday has been taken up with this discussion of whether and to what extent Members of Congress should participate in proceedings.

Last year during the course of the hearings, this committee had presented to it the question of the executive influence and authority so far as the matters of international routes are concerned, and the Board's authority in such matters, as well as the executive itself. I do not want to get into a long discussion of it this morning, but I would like to pose about two or three questions and ask you gentlemen if you will give it your thought and attention and file a statement for the record on it.

Dean Landis in his testimony before the committee last year, on pages 98 and 99 in the hearings on November 19, stated:

I think that the worst off-the-record deals are at the White House in international routes.

Let us assume for consideration, or agree that the President should have the power to approve international routes and that he should be entitled, for matters affecting our security, or diplomacy, to keep secret his reasons for the route selection, but is it necessary-this is the first question-for the President not to state his reasons for the selection of the air carriers when such selection does not involve either security or diplomacy?

No. 2, why should not the President have some record procedure showing why carrier A is selected by him rather than carrier B, when security and diplomacy are not involved?

Third, what good reason is there why competing carriers for international routes should not be able to know and meet the case presented by their opponents and the White House?

Fourth, isn't there as much need for a rule of law to be followed by the executive in such matters as the legislative or anyone else?

As I say, that was the subject that we gave a lot of attention to last year, too, and it is a highly important one and our committee report made some recommendations thereon.

If you gentlemen would favor the committee with such statement or response to these questions, we would be very glad to have them. (The response is reproduced at the end of the Civil Aeronautics Board discussion.)

Mr. DURFEE. Mr. Chairman, I think the Board has responded in part in its proposed legislative program. I think we responded in part in the questionnaire which the Board received as to this particular relationship of the Board with the President, but, Mr. Chairman, the Board will address itself specifically to the four questions that you have asked and reply for the record in written form, if that is what you choose.

The CHAIRMAN. Yes.

Thank you very much. I do recognize that you have answered at least part of the questions involved on this particular subject.

Mr. SPRINGER. Mr. Chairman, might I ask two questions in connection with that?

The CHAIRMAN. Yes.

Mr. SPRINGER. I know in all of those questions the words "where diplomacy is not involved," not security, and I recognize that, but my understanding is that practically all of the decisions under either party, since the end of World War II, and I am saying 90 percent of those, have rested on diplomacy.

Did the chairman mean by that to except that large a group from his questions?

The CHAIRMAN. I think we have to recognize the inherent powers of the Executive, that is, the President, in international diplomacy or matters of international relations, and that is what I had reference to, the President's inherent powers in this respect.

Mr. SPRINGER. I undestand what you mean.

The CHAIRMAN. Mr. Mulligan, we will recognize you for a brief discussion of item 4.

Mr. MULLIGAN. Mr. Chairman, in view of the limitations of time, I believe yesterday you indicated you would like to finish with us at 10:30.

The CHAIRMAN. Which is impossible, it seems.

Mr. MULLIGAN. It is perfectly agreeable with me if my statement would be incorporated in the record, and while I would be very glad to answer any questions today within whatever time you might wish to specify, I would like to point out that each of the items covered in my paper involve legislation, and some of them are already pending before this committee. Others I would hope in due course would come before the committee.

You would, of course, hold hearings on each of these items if and when they come before you, and that would be, I believe, an equally appropriate time to go into these matters.

The CHAIRMAN. Mr. Mulligan, I have read your statement and I want to compliment you for a very fine statement.

You do direct yourself toward legislation, consideration of some of which has been considered by this committee in the course of hearings, and your entire statement, therefore, will be included in the record, and I commend it to the members of the committee.