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adequate to support a conclusion." Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed 126 (1938). If the evidence of record is such that it supports inconsistent interferences and conclusions the courts must defer to administrative choice. Illinois Central Railroad Co. v. Norfolk & Western Railway Co., 385 U.S. 57, 69, 87 S.Ct. 255, 262, 17 L.Ed.2d 162 (1966). The Secretary's decision that the proposed order tended to effectuate the policy of the Act clearly survives judicial review under both the "arbitrary and capricious" standard and the "substantial evidence" standard.

...

After notice and a hearing required under 7 U.S.C. § 608c(3) were provided, the Secretary found that although the six orders were distinguishable when originally promulgated, "changes in marketing practice since that time have caused these separately regulated areas to become substantially interrelated in both the distribution and procurement of milk."13 There was abundant evidence presented at the hearing from which the Secretary could conclude that the former six-market area was characterized by intermarket competition in distribution, common production areas, and common reserve supply. In addition, the evidence also revealed that producers supplying the six-market area received different levels of payment for their milk.15 The plaintiffs' contention that no significant interrelationship existed between it and the other merged markets was examined in depth by the Secretary, and was rejected.16

14

The Secretary's Determinations Concerning Handler Failure to Sign a Marketing Agreement, and the Necessity of the Order

The plaintiffs' second argument is more difficult and presents this court with an issue of first-impression statutory interpretation. After the Secretary had held the hearing pursuant to 7 U.S.C. § 608c(4), and the applicable rules of practice and procedure, 7 C.F.R. § 900 et seq. (1975), he subsequently issued a determination that "[t]he refusal or failure of the handlers . . . of

1340 Fed. Reg. 20,005 (1975).

14See id. at 20,005-007.

15 Id. at 20,005.

16Id. at 20,006-007.

more than 50 percent of the milk . . . marketed within the Texas marketing area, to sign a proposed marketing agreement, tends to prevent an effectuation of the declared policy of the Act" and that the issuance of the order was "the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the Texas order." 40 Fed.Reg. 23,438 (1975). In addition, the Secretary found that the order was approved by the requisite number of producers, see id., and accordingly, he issued the new order.

The plaintiffs argue that, even assuming that there was substantial evidence to support the Secretary's decision that the merged order tends to effectuate the declared policy of the Act, his further determinations that, in regard to the former Corpus Christi order, the absence of handler approval tended to prevent effectuation of the policy of the Act, and the only practical means of advancing the policy of the Act was to issue the producer-approved order, were unsupported by substantial evidence, as well as arbitrary, capricious, and an abuse of discretion.

We ultimately find, for reasons below set forth, that these determinations made by the Secretary were entrusted to his discretion and required no further factual showing beyond the findings in the initial "tendency" hearing that the order tended to effectuate the purposes of the Act.

The Administrative Procedure Act, 5 U.S.C. § 702, provides that "A person suffering legal wrong because of agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Nevertheless, 5 U.S.C. § 701(a) states specifically that the provisions of the APA dealing with judicial review do not apply when: (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." Although there is no explicit preclusion of judicial review in the statute under discussion here, "an agency action is committed to the agency's discretion and is not reviewable when an evaluation of the legislative scheme as well as the practical and policy implications demonstrate that review should not be allowed." Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980), cert. denied, --- U.S.---, 101 S.Ct. 1975, 68 L.Ed.2d 295(1981), citing Local 2855 v. United States, 602 F.2d 574 (3d Cir. 1979).

We are aware that the "committed to agency discretion" exception, 5 U.S.C. § 701(a), of the APA is "very narrow". Citizens to Preserve Overton Park, supra, 401 U.S. at 410 91 S.Ct. at 820 (1971). Access to judicial review should be restricted "[o]nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent" to do so. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Citizens to Preserve

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Overton Park, supra, 401 U.S. at 410, 91 S.Ct. at 820.17 The courts have historically limited the exception to cases where: (1) the statute in question is "drawn in such road terms that in a given case there is no law to apply, [and] courts... have no statutory question to review." S.Rep.No. 752, 79th Cong., 1st Sess., 26 (1945) (on Administrative Procedure Act); Citizens to Preserve Overton Park, supra, 401 U.S. at 410, 91 S.Ct. at 821; Santa Clara v. Andrus, 572 F.2d 660, 666-67 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978); (2) the courts are simply "ill-equipped" through a lack of expertise to review the decision in question, Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970); Kletschka v. Driver, 411 F.2d 436, 443 (2d Cir. 1969); and (3) the agency action involves decisions relating to areas, such as national defense, that "lie outside sound judicial domain in terms of aptitude, facilities, and responsibility." Curran v. Laird, 420 F.2d 122, 129 (D.C. Cir. 1969).18

In "weighing of the need for, and the feasibility of, judicial review versus the potential for disruption of the administrative process," Bullard, supra, 623 F.2d at 1046, it is apparent to us that the determinations in question could not be subjected to any meaningful judicial review. After the Secretary holds the "tendency" hearing provided by 7 U.S.C. § 608c(4) and determines that the order tends to effectuate the policy of the Act, he must then determine whether, if the requisite number of handlers fail to approve the agreement, that failure tends to prevent the effectuation of the policy of the Act. Given that the Secretary has already made a determination, after notice and a hearing, that the order tends to effectuate the policy of the Act, it follows that failure by the handlers to approve such a marketing arrangement prevents effectuation of the policy of the Act. Judicial review of this determination could add nothing to the judicial review of the hearing provided by 7 U.S.C. § 608c(4), and such review would be duplicative and inefficient.

Although analysis of plaintiffs' claim with respect to the Secretary's determination that issuance of the order is the only practical means of

17For a discussion of the "committed to agency discretion" exception to the general rule that agency decisions are amenable to judicial review, see Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969); Berger, Administrative Arbitrariness: A Sequel, 51 Minn.L.Rev. 601 (1967); Davis, Administrative Arbitrariness is Not Always Reviewable, 51 Minn.L. Rev. 643 (1967), Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv.L.Rev. 367 (1968). See also L. Jaffe, Judicial Control of Administrative Action 353-76 (1965).

advancing the interests of the producers is more difficult, it nevertheless yields the conclusion that this determination is also not subject to our review.

In deciding whether the Secretary's determination is "committed to agency discretion by law" the test is not whether a statute viewed in the abstract lacks law to be applied, but rather, whether 'in a given case' there is no law to be applied." Andrus, supra, 572 F.2d at 666, quoting Strickland v. Morton, 519 F.2d 467, 470 (9th Cir. 1975) (emphasis in original).

The scope of discretion accorded to the Secretary under the statutory scheme is such that 7 U.S.C. § 608c(9)(B) imposes no "limits [on the] agency's discretion to act in the manner which is challenged." Andrus, supra, 572 F.2d at 666. The Secretary must make a factual determination after the hearing about the tendency of the order to serve the purposes of the Act. In that situation, the Secretary's discretion is limited by his lawful consideration of the evidence that is presented at the "tendency" hearing under 7 U.S.C. § 608c(4). Under 7 U.S.C. § 608c(9)(B), however, the Secretary is directed to determine, without the development of an additional evidentiary record, the necessity of the proposed order. The statute imposes rigorous obligations on the Secretary to develop an evidentiary record with respect to the "tendency" aspect of the order, but leaves him to make a determination of its "necessity" aspect without any further evidence to be taken. The most sensible construction of the statutory scheme, under these circumstances, is that the Secretary's determination for the "necessity" of the order--once the evidentiary "tendency" hearing establishes the Secretary's statutory authorization to issue it--is left to his administrative decision whether or not to issue it as "the only practical means of advancing the interests of the producers... pursuant to the declared policy [of the Act]", 7 U.S.C. § 608c(9) (B). We are reinforced in our view that this is the proper interpretation of the statutory provisions, because the Act has been so administratively constructed and administered (albeit without issue being raised until now) since its enactment. See, e. g., United States v. Rock Royal Co-Op., Inc., 307 U.S. 533, 547, 59 S.Ct. 993, 1001, 83 L.Ed. 1446(1939); H.P. Hood & Sons, Inc. v. United States, 307 U.S. 588, 592, 59 S.Ct. 1019, 1022, 83 L.Ed. 1478(1939).

Further, although the courts may be equipped to determine whether the Secretary's "tendency" determination is supported by substantial evidence, it is clear that we are ill-equipped to examine the Secretary's "necessity" determination in the absence of any additional factual evidence or findings, the making of which the Act does not envisage. If we were to hold that the Secretary's "necessity" determination were reviewable, it would imply that if the Secretary decided not to issue the order, then that decision would likewise

53 Agric. Dec. 964

be reviewable. That would put the federal courts in the position of possibly requiring that the Secretary issue an order that he has determined was not necessary to effectuate the proposes of the Act.

On oral agument the Court was informed that never in the history of the Act have the handlers voted to approve a marketing arrangement. Thus, the additional finding of necessity has always followed as a matter of course without further hearing or findings. It would alter the established practice of over forty years under the Federal Milk Marketing Act to discover now a separate judicial review of the "necessity" finding of the Secretary. Thus, the logic of the finding of "necessity" being based upon the "tendency" hearing coalesces with the entrenched practice to establish that the "necessity" determination by the Secretary is discretionary administrative action.

Our conclusion of non-reviewability is supported by two additional considerations.

First, the statutory scheme of the Act and its limited judicial interpretations clearly define the ambit of federal court participation in the issuance of milk orders. 7 U.S.C. § 608c(15)(A) provides:

Any handler subject to an order my file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. . . .

After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, in accordance with law.

7 U.S.C. § 608c(15)(B) then provides for review in the district court of the ruling issued by the Secretary.

The judicial review provided by 7 U.S.C. § 608c(15)(A) has been interpreted in two primary cases. In United States v. Rock Royal Co-op., Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939), the Supreme Court accorded handlers standing to raise by way of defense issues of want of statutory authority to impose certain provisions that were alleged to discriminate against particular handlers. In Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944), producers were permitted to challenge the Secretary's deduction from a fund used to insure that the minimum price established by an order accurately reflected the actual use to which handlers put their purchased milk. Stark was explicit in its holding that judicial review beyond that authorized by