Irwin Goldbloom, Deputy Asst. Atty. Gen., argued for the Administrator of General Services and the United States of America. Carla A. Hills, Asst. Atty. Gen., Irving Jaffee, Deputy Asst. Atty. Gen., and Earl J. Silbert, U. S. Atty., were on the pleading filed in the cause by those parties.

Peter M. Kreindler, Counsel to the Sp. Prosecutor, Watergate Sp. Prosecution Force, for the Sp. Prosecutor as amicus curiae. Henry S. Ruth, Jr., Sp. Prosecutor, and Kenneth S. Geller, Asst. Sp. Prosecutor, were on the pleadings filed in the cause by the Sp. Prosecutor.

Robert E. Herzstein, Washington, D. C., argued for The Reporters Committee for the Freedom of the Press, and others, as amici curiae. Andrew S. Krulwich and Mark J. Spooner, Washington, D. C., were on the pleadings filed in the cause by The Reporters Committee for the Freedom of the Press, and others.

William A. Dobrovir, Washington, D. C., argued for Jack Anderson as amicus curiae. Andra N. Oakes, Washington, D. C., was on the pleadings filed in the cause by Jack Anderson.

Leon Friedman, of the bar of the Court of Appeals of New York, pro hac vice by special leave of the Court, argued for Lillian Hellman, and others as amici curiae. Melvin L. Wulf, New York City, was on the pleading filed in the cause by Lillian Hellman, and others.

Before BASTIAN, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.

Petitioner filed in this court a petition for a writ of mandamus directing a District Judge to immediately grant a pending application for a three-judge court to hear and determine a case challenging the constitutionality of an act of Congress, and instructing the judge to give that case priority over three consolidated cases pending before him as a single judge. In a prior opinion,1 we held that the judge had to rule on the three-judge application and had to defer the priority question to the three-judge court if convened. We denied the requested writ, however, as unnecessary to compliance with those holdings.

The judge's subsequent release of an opinion, without accompanying order, deciding the consolidated cases has prompted petitioner to seek reconsideration of our earlier refusal of a writ. A three-judge court has now been convened to initially determine whether it properly should pass on the constitutional challenge, and no further action by us is needed in that regard. Since we had, however, stayed entry of any order implementing the opinion in the consolidated cases, the present controversy relates to whether the stay should be continued.

We find that our stay must remain in effect temporarily for protection of the litigation in which the challenge is made. We leave, as we did before, resolution of the priority question for the three-judge court if it rules that it is to function in that case. Our stay will terminate when the exigencies demanding it disappear. Our reasons for these decisions follow.

* On December 19, 1974, the Presidential Recordings and Materials Preservation Act2 became law. Title I of the Act directs the Administrator of General Services to obtain possession and control of specified tape recordings of conversations held, and other historical matter generated, during petitioner's tenure as President of the United States.3 These the Administrator is to protect and preserve, subject to regulations to be promulgated to govern access by petitioner, governmental agencies and departments, and members of the public.4 The Act also authorizes payment of just compensation upon a judicial finding that any individual has been deprived of private property by any provision of Title I.5

On the day after the Act went into effect, petitioner brought an action in the District Court to enjoin its enforcement permanently on grounds that it transgressed the Federal Constitution.6 At the same time, petitioner asked that a three-judge court be convened to hear and determine the constitutional claims asserted therein.7 The case was assigned to the respondent District Judge, the Honorable Charles R. Richey, before whom three consolidated cases involving the presidential materials were then pending.8 The contest in those cases extended to ownership of the materials and privilege against their disclosure, issues also involved in petitioner's constitutional challenge.9 On January 3, 1975, petitioner moved for a preliminary injunction against operation of the Act.

During the five weeks following institution of the challenge case on December 20, petitioner on five separate occasions, we are told requested Judge Richey to initiate the statutory procedure leading to the formation of a district court of three judges.10 The record reveals that during that period Judge Richey was preoccupied with the consolidated cases,11 and planned to complete work on them before addressing the challenge case.12 On January 23, 1975, Judge Richey informed counsel by letter that:Due to unforeseeable circumstances, the court's opinion in the consolidated cases is not finished at this time. Until this opinion and order are finished, and the court is hopeful of having it done early next week, the court will not be able to turn its attention to the above-entitled cause. That will be the next order of business.13

Late in the afternoon of January 28, petitioner filed in this court a petition for a writ of mandamus directing Judge Richey to grant the application for a three-judge court immediately and give the challenge case priority over the consolidated cases.14 The petition called attention to Judge Richey's letter and its indication that the decision in the consolidated cases was imminent. Recognizing the possible consequence of that action upon petitioner's constitutional challenge, a matter we elucidate later,15 we gave the matter all the expedition we could command. On January 29, we called for responses,16 by the close of the next day. We deliberated promptly after receipt of the responses, and filed an opinion and order on the morning of January 31.

In our opinion, we concluded that Judge Richey erred in delaying action on the three-judge request17 and in ignoring the statutory priority18 of the challenge case.19 We held that Judge Richey "must decide and decide now," whether to call for a three-judge court,20 stating carefully that "(w)e intimate(d) no view as to what in this regard (he) should decide."21 On the matter of priority, we pointed out the danger of first deciding the consolidated cases,22 and observed that "(t)he interests of justice would seem to require that disposition of (those) cases be held up at least until the three-judge question is put to rest."23 We noted specifically that "delay in the issuance of the opinion in the consolidated cases . . . should properly be settled by the three-judge court."24

Although thus concluding, and acknowledging the propriety of the mandamus remedy in the circumstances,25 we saw no occasion for issuance of a writ. "No final action on the petition at hand is necessary," we stated;26 "(w)e assume that the District Judge, now advised of the relevant law, will proceed in accordance with this opinion."27 In so doing, we adhered to a tradition inspired by a time-proven expectation that judges will perform their duties, once defined, without coercion by judicial process.28 Correspondingly, our order accompanying the opinion denied a writ of mandamus "for the reasons and on the conditions stated in the" opinion.

We would be less than frank if we failed to observe that we did not anticipate the events which were soon to follow. Our opinion and order issued at approximately 9:45 a. m. on January 31. In line with our custom in expedited cases, our clerk's office telephonically notified Judge Richey at once, and minutes later copies of the opinion and order were hand-delivered to his chambers. At mid-afternoon of the same day, petitioner's motion for reconsideration of our denial of the writ of mandamus officially informed us that an opinion by Judge Richey in the consolidated cases29 had been released at 11:00 a. m. The only explanation furnished us is that he had filed the opinion with his courtroom clerk shortly after 2:00 a. m. on that day.30

Judge Richey's opinion, a copy of which we later requested, stated that an order of even date would issue.31 We acted to preserve the status quo by staying temporarily the effectiveness of any order that might have issued, and the entry of any orders in the consolidated cases. We also scheduled a special hearing on the day following, February 1, to better enable a determination as to whether the stay should be left in effect. At the hearing, we entertained argument not only for the parties to the challenge case, but also on behalf of others, as amici curiae, who are parties to the consolidated cases. We learned at the hearing that no order on Judge Richey's opinion had been entered.

Subsequent to the hearing, on February 4, Judge Richey transmitted to us a report informing that on that date he had requested the Chief Judge of this circuit to convene a three-judge court to determine initially whether the challenge case should be heard and decided by such a court.32 On the next day, the Chief Judge designated two judges to serve with Judge Richey as the court.33 Thus the need for any further action on our part to activate the three-judge court machinery has disappeared. There remains, however, the question, extensively debated by the litigants, as to whether the stay should be continued; this question is explicitly presented by motions of some of the parties to vacate our stay.

Manifestly, Judge Richey was obligated to abide any decision we might render on the petition for mandamus. "(A) lower court is bound to respect the mandate of an appellate tribunal; "34 it "is without power to do anything which is contrary to either the letter or spirit of the mandate construed in the light of the opinion of (the) court deciding the case."35 That we did not issue a writ of mandamus is beside the point. Our opinion set forth our views, the courses we held indicated, and why we deemed a writ unnecessary. Our order stated explicitly that the writ was denied "for the reasons and on the conditions stated in the" opinion.36 The opinion as well as the order comprised our mandate,37 and the opinion was to be consulted to ascertain what was required of Judge Richey.38

We cannot accept Judge Richey's explanation of his action39 as ground for deviation from these well-settled principles. Disavowing the notion that he acted hastily to circumvent an adverse directive from this court,40 he says in essence that having twice previously stated that he would complete the opinion by January 31,41 he felt it imperative to do so.42 That, he tells us, was why work on the opinion continued beyond 2:00 a. m. on that morning, and why the opinion was signed and filed in the District Court's clerk's office at that early hour for reproduction.43 He adds that the opinion was publicly released at 11:00 a. m., notwithstanding knowledge of our opinion and order, because he "had already acted in the consolidated cases as promised."44

We note a significant variation between Judge Richey's statement and our First Deputy Clerk's careful record of the relevant facts, logged to the minute.45 That variation is an omission in Judge Richey's version. While he states that he received our order in his chambers "(s)ome time after 10:00 a. m."46 he neglects to mention that at precisely 9:50 a. m. he was telephonically advised that our order and opinion had been entered by the First Deputy Clerk, who read the order to him twice, emphasizing that a writ of mandamus had been denied only "for the reasons and on the conditions stated in (the) attached" opinion.47 The order and opinion were hand-delivered to Judge Richey's chambers between 9:45 a. m. and 9:55 a. m.,48 and we see from Judge Richey's own statement that calls advising counsel of his ruling were not made until after 10:00 a. m.49

We note also the absence of any positive suggestion that Judge Richey's opinion had been entered on the civil docket when our opinion and order were received.50 When his courtroom clerk was asked at what time the opinion was filed, she said "11:00 a. m."51 It was two hours afterwards that she called our First Deputy Clerk to say that the opinion had been "filed" in the wee hours of the morning although not released until 11:00 a. m.52 But irrespective of docketing, we deem the predawn "filing" of Judge Richey's opinion to be of no conceivable legal or practical effect. It is perfectly clear from his own statement that he had control of the opinion at 11:00 a. m., and that counsel were not notified of it until after Judge Richey had been verbally informed of our opinion and order and had a copy of both in his hands.53 It was his plain duty to abide that decision, and nothing in his statement provides good cause for not so doing.

From January 28, when Judge Richey was served with a copy of the petition for mandamus, he knew that petitioner sought from this court a writ commanding, inter alia, priority of decision for the challenge case over the consolidated cases. From the fact that, on January 29, we called for responses to the petition on the very next day, he knew that we would not deny the petition out of hand,54 and that we were proceeding speedily toward action on it. We think it clear that a judge is under a duty not to so circumstance himself as to be unable to conform to directives of a higher court which, from plain appearances, might be imminent. Irrespective of motivation, the course Judge Richey followed after learning of the mandamus proceeding55 seems to have totally ignored that possibility.

Even more fundamentally, priority in the filing-time as between Judge Richey's opinion and our order is unimportant to our decision, for in either event we have the responsibility of protecting affected litigants from possible harm. To insure justice for the litigants is invariably our overriding concern. The difficulty germinated by Judge Richey's action must now be brought under control and that may be undertaken within the framework of the present proceeding. "(M)andamus lies to rectify a deviation"56 or "to correct a misconception of the scope and effect of the appellate decision."57 To that task we now proceed, first defining the problem in terms of relevant statutory provisions.

Congress has ordained that an action seeking an injunction against the enforcement of its legislation on grounds of federal unconstitutionality be heard and determined by a district court comprised of three judges.58 Congress has also specified that "(o)n the filing of the application" for injunction, the district judge to whom it is presented "shall immediately notify the chief judge of the circuit"59 and, further, that an application for a preliminary injunction in such an action as petitioner sought here "shall be given precedence and assigned for a hearing at the earliest practicable day."60 We have previously held that in instances where a three-judge court is in order, the single judge must activate the three-judge machinery, and that any stay of three-judge proceedings which is proper may be granted only by the three judges.61

In our earlier opinion, we expressly refrained, as we do now, from deciding whether these particular provisions apply to the challenge case.62 But in addition to these provisions, there is Section 105(a) of the Presidential Recordings and Materials Preservation Act,63 which has evident bearing. As we stated in our earlier opinion,

Section 105(a) of the Act confers upon the District Court for the District of Columbia "exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title,"64 and specifically provides that "(a)ny such challenge shall be treated by the court as a matter requiring immediate consideration and resolution . . . ."65 . . . It is clear that the case for which petitioner sought the three-judge court was a "challenge to the legal or constitutional validity of" the Act. It is equally clear that, as an integral part of his "challenge," petitioner's application for such a court was "a matter requiring immediate consideration and resolution . . . ."66

Section 105(a) of the Act distinguishes the treatment to be given "challenges to the legal or constitutional validity of this title,"67 on the one hand, and "any action or proceeding involving the question of title, ownership, custody, possession, or control of any tape recording or material referred to in (the Act) or involving payment of any just compensation which may be due in connection therewith."68 The section then specifies, not only that "(a)ny such challenge shall be treated by the court as a matter requiring immediate consideration and resolution,"69 . . . but also that "such challenge shall have priority on the docket of such court over other cases."70 We have said that the case wherein petitioner seeks a three-judge court was a "challenge" within the contemplation of Section 105(a). We now add that as such it was entitled to priority over the consolidated cases "other cases" because plainly "action(s) . . . involving the question of title, ownership, custody, possession, or control of" materials embraced within the Act.71

In that opinion, we also took pains to alert Judge Richey to the peril of disposing of the consolidated cases ahead of the challenge case,72 and to identify the nature of the peril.73 Our reference obviously was to the doctrine of collateral estoppel,74 which might bar petitioner from urging in the challenge case positions contrary to determinations which any decision of the consolidated cases might yield.75 We reiterate that petitioner and his adversary in the challenge case were also parties to the consolidated cases, and that the issues of ownership and privilege in regard to the presidential materials were common to each. Adjudication of those issues in the consolidated cases, then, might foreclose antagonistic theories of ownership and privilege as bases for contentions in the challenge case.

What we feared came to pass. Judge Richey's decision in the consolidated cases rejects petitioner's premises on ownership and privilege.76 If ordered into effect, petitioner says, the decision will prevent him from presenting to the three-judge court substantial arguments in support of his challenge to the constitutional validity of the Act, and for that reason he asks that the stay be continued. So it is that, on the stay matter, the question of priority as between the challenge case and the consolidated cases comes to the fore.

While, as noted,77 in our previous opinion we discussed the facial indications of Section 105(a)'s priority provision, we felt that resolution of the priority issue was for the three-judge court,78 and we now adhere to that view. Because, however, it is strenuously argued that the priority provision does not justify any further stay, we have reexamined the provision in light of its legislative history to ascertain how strong the possibility is that the priority provision means just what it appears to say.79 We turn now to the results of that reinvestigation.

The history of the Presidential Recordings and Materials Preservation Act portrays vividly the congressional view that legislation as to the presidential materials was needed importantly and urgently, and, as well, that questions as to the validity of such legislation should be considered and resolved by the courts expeditiously. On September 8, 1974, President Ford announced that petitioner and the Administrator of General Services had negotiated and executed an agreement the "Nixon-Sampson agreement" conferring control of the materials upon petitioner.80 Both Houses of Congress were concerned about the potential consequences of that agreement in terms of continuing availability of and access to the presidential materials.81

In both Houses bills were promptly introduced, and they had as their purpose alteration of the Nixon-Sampson arrangement to invest the Federal Government with control over the materials, and thereby with power to protect them and provide for access. The Senate bill, introduced on September 18,82 critical features of which we later discuss,83 passed that body on October 484 and, with minor variations, the House on December 3.85 Following amendments by the Conference Committee,86 both Houses, on December 9, enacted the measure into law.87 Thus Congress achieved the goal of expediting passage of legislation on the matter of the presidential materials.

The second congressional goal speedy determination of possible challenges to the validity of the Act was initially approached by insertion of an express provision on that subject in the Senate bill. In the form in which it first passed both Houses, the bill specifically provided that:

The Federal District Court for the District of Columbia shall have exclusive jurisdiction to hear challenges to the legal or constitutional validity of any provision of this Act or of any regulation issued under the authority granted by this Act. Such challenge shall be heard by a three-judge court constituted under the procedures delineated in section 2284, title 28 of the United States Code, with the right of direct appeal to the United States Supreme Court. Any such challenge shall be treated by the three-judge court and the Supreme Court as a priority matter requiring immediate consideration and resolution.88

When the Senate first considered the measure, Senator Ervin, one of its sponsors, commented that

(t)his legislation, of course, may be subject to legal or constitutional challenges. In light of this possibility, the final principal provision states that all such challenges shall be heard on an expedited basis by a three-judge court, with direct appeal to the Supreme Court. In this way, all legal and constitutional issues can be resolved quickly.89

Senator Javits, another sponsor, stated that the bill

vests in the U.S. District Court for the District of Columbia exclusive jurisdiction to hear challenges to the legal or constitutional validity of any provision of this act. It provides further that such challenges shall be heard by a three-judge court, with the right of appeal to the U.S. Supreme Court, and requires that such challenges be treated by both courts as priority matters to be given immediate consideration and resolution.90

And Senator Nelson, still another sponsor, pointed out that(t)his bill provides an expedited procedure to test any question of the invasion of anybody's rights. . . . It requires a three-judge circuit (sic) court to have the matter treated as a priority issue, and then appeal to the Supreme Court.91

Similarly, in the House, Representative Brademas, the floor manager of the bill in that body, explained to his colleagues that

(t)o insure expeditious resolution of any challenge to the legal or constitutional validity of any provision of this title, the bill provides that any such challenge shall be heard by a three-judge panel of the U.S. District Court for the District of Columbia with a direct appeal to the U.S. Supreme Court. The bill further provides that any challenge and appeal shall be heard as a priority matter.92

Another manifestation of how urgent Congress deemed the enactment of legislation to deal with the presidential papers is found in the statutory scheme itself. Throughout the reports and debates on the bills which eventuated into the Act, Congress repeatedly made it plain that it considered the question of ownership of the materials to be a subject for judicial decision rather than legislation.93 It believed, however, that the situation demanded legislation immediately, without awaiting judicial determination of the question of ownership,94 and further believed that legislation could appropriately be framed to meet the emergency the Nixon-Sampson agreement portended, without a resolution of that question, simply by making provision for the payment of just compensation for such materials as the courts might later determine was due.95 As the report of the Committee on Government Operations elucidates:

If the materials are public property, the Congress is merely exercising its powers under Article IV of the Constitution to dispose of public property.

If the materials are private property, then the Congress is merely taking "protective custody" of them for critically important public business . . . .

If a court should decide that the legislation would in any way deprive Mr. Nixon, or anyone else, of private property, provision is then made to have him paid just compensation for the loss of any such property right. The payment of such just compensation will render any "taking" under the legislation as constitutional.96

So it was that the Act, with relatively minor differences in text, passed both Houses of Congress.97 It was only thereafter, but at some time prior to action by the Conference Committee on the differences between the Senate and House versions, that the pendency of the consolidated cases before Judge Richey assumed a role. In conference, the three-judge court requirement was eliminated, and the measure, with Section 105(a), in its present form,98 was approved by the Committee99 and subsequently accepted by both houses.100 The only explanation for this action is found in remarks by Representative Brademas when the action of the Conference Committee came on for consideration by the House. Representative Brademas explained:

These amendments combine two sections in the House-passed measure sections 103 and 106 to make clear that the U.S. District Court for the District of Columbia shall have exclusive jurisdiction to hear all challenges to this legislation, including challenges to the legal and constitutional validity of this title and any challenge regarding the question of title, custody, possession or control of these tapes and materials and the payment of "just compensation" which may be required. The amendment also deletes the provision for a three-judge court with direct appeal to the Supreme Court. This amendment would thereby enable a single judge of the U.S. District Court for the District of Columbia to hear any challenge to this legislation. The amendment provides that any challenges to this legislation receive priority consideration and that all appeals be heard on an expedited basis.

This amendment would allow for an expeditious review of any legal challenge to this legislation. There is now pending before a single-judge District Court for the District of Columbia a proceeding in which the major issues have already been briefed and argued and in which the major parties are present. Under the amendment, the pleadings in the pending litigation could be amended to take into account additional issues regarding the validity of the legislation and the United States could be added as a defendant to any claim for compensation by Mr. Nixon.

. . . The new "judicial review" section, section 105, would provide that any challenge to this legislation could be considered as part of litigation which is now pending in the U.S. District Court for the District of Columbia. Since most of the issues in this litigation have been fully briefed and competently argued, and since the issues in any challenge to this litigation will be essentially the same, the public interest will be fully represented. And, if it becomes apparent that a particular point may not be adequately represented, the judge presiding over such litigation could appoint an amicus curiae to argue these points.101

The remarks of Representative Brademas demonstrate that Congress intended to preserve single-judge jurisdiction over the consolidated cases, even for consideration and decision of challenges to the constitutional validity of the new Act in the event that such challenges were asserted in those cases. The remarks plainly contemplated, too, that any such challenge would utilize that opportunity. But Representative Brademas was completely silent on the question whether such a challenge could only take that route, and so is the rest of the legislative history.

We need not ponder whether Congress could validly have imposed the requirement that such a challenge could only be entertained in the consolidated cases. Nowhere in the legislative history is there any suggestion that Sections 2282 and 2284 would not enable a separate suit presenting a constitutional challenge to the Act in the context of a demand for injunctive relief. It would have been simple for Representative Brademas to state, and indeed for Congress to require, that those sections would not apply to challenges to the Act, had that been what Congress had in mind. Neither, however, was done, and the courts are left with the problem of determining whether petitioner's separate-suit challenge requires the usual three-judge court, particularly in light of the general canon of construction that repeal of a statute by implication is disfavored.102

It is much the clearer, however, that Congress deemed indispensable to its objectives the immediate consideration and resolution of any challenge to the constitutional or legal validity of any provision of the new Act. It was to mandate that degree of expedition that each of the bills initially passing the Senate and the House contained the requirement that such challenges be heard and determined by a three-judge court, with direct appeal to the Supreme Court,103 and contained also the requirement that both courts proceed immediately to consider and resolve the challenges.104

It was because, thereafter it came to the attention of Congress that the consolidated cases were pending before Judge Richey and, in the understanding of Congress, had proceeded to the point of briefing of many of the questions related to the validity of the Act, that the Conference Committee decided to leave it possible to utilize that litigation as the vehicle for speedy resolution of challenges to the validity of the Act105 instead of requiring a three-judge court. In sum, because of the progress Congress assumed the consolidated litigation had already made to that point, it was felt that expedition could be promoted if, in lieu of providing for a new suit before a three-judge court which would have to start from a new beginning the progress already achieved in the consolidated cases could be capitalized on.

But what Congress expected, and what Section 105(a) as enacted would permit, was that any and all challenges to the validity of the Act would be made in the consolidated cases before Judge Richey as a single judge, after appropriate amendments and additions of parties for that purpose were accomplished. What Congress apparently did not anticipate was that petitioner, instead of pursuing that route, would institute a new, separate suit grounded on Sections 2282 and 2284 to test in orthodox fashion the constitutionality of the Act before a three-judge rather than a single-judge tribunal.

There is yet another important consideration and it indicates strongly that Congress intended that questions affecting the constitutional validity of the Act should be considered and completely resolved prior to any decision of other issues pertaining to the presidential materials. The Act, on its face, provides a comprehensive scheme for control, preservation and utilization of the presidential materials in the manner found to be best suited to the needs of the Federal Government and the American public. It requires the Administrator of General services to "receive, obtain, or retain, complete possession and control of all original tape recordings of" designated conversations,106 and "of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974."107 It provides specifically that "(n)one of the tape recordings or other materials . . . shall be destroyed, except as" Congress may later provide;108 that the materials are immediately available, on a priority basis, to the Special Watergate Prosecution Force for use in judicial proceedings;109 that petitioner or his designee shall have access to the materials for purposes consistent with the Act, subsequent and subject to regulations the Administrator is required to promulgate;110 and that agencies and departments in the Executive Branch shall have access to the materials subject to such regulations.111 The Administrator is required to promulgate a set of regulations "as may be necessary to assure the protection of the" materials "from loss or destruction, and to prevent access to such" materials "by unauthorized persons,"112 the regulations within ninety days after enactment to be submitted to both Houses of Congress and to become effective ninety legislative days following submission unless disapproved by a resolution adopted by either House during such period.113 In promulgating the regulations, the Administrator is required to take into account a great variety of factors bearing on the relative needs of government, the public, litigants and petitioner to controlled access to the materials.114

It is thus seen that Congress fashioned the Act to cover a wide territory. Once the Administrator has fashioned regulations which do not incur congressional disapproval the interests of all will be carefully and comprehensively regulated.115 It must be noted, too, that the regulatory process is to continue indefinitely into the future, with revisions of regulations from time to time as may be needed.116 If only the Act and the implementing regulations are valid, Congress will have settled questions about the materials on a very broad scale.

It may well be wondered how much, if anything, will be left unregulated by the Act and the regulations; in other words, what else, if anything, a court will have to pass upon, aside from disputes over access to the materials under the legislatively- and administratively-established criteria, and questions of just compensation for takings essential to enable governmental retention and control.117 In any event, to the extent that Congress and the Administrator of General Services validly define the rights and interests of those to whom the materials are subjects of concern, judicial decisions on those subjects might well be unnecessary and meaningless. All this would seem to suggest that what Congress contemplated, and what congressional specifications in Section 105 mean, is that questions of validity of the Act's provisions would be decided ahead of other questions.

This review of the Act's legislative history, we think, lends clarity to the priority features of Section 105(a). The essence of the legislative lesson may be briefly summarized. Section 105(a) sharply distinguishes between "challenges to the . . . constitutional validity of" Title I of the Act,118 like petitioner's constitutional attack, and actions involving questions "of title, ownership, custody, possession, or control of" the presidential materials, like the consolidated cases.119 Section 105(a) then proceeds to specify that "(a)ny such challenge shall be treated by the court as a matter requiring immediate consideration and resolution"120 and that "such challenge shall have priority on the docket of such court over other cases."121 As the text and legislative history, read together, make quite plain, what Congress wanted was speed in judicial handling of such "challenges," whether properly to be considered and determined by three judges or one.122 Just as plainly, the text and history of Section 105(a) indicate that Congress did not share the same concern for speed in the resolution of litigation not amounting to a "challenge." That litigation is relegated to a position below the priority specified for "challenge" actions.

Events subsequent to issuance of our stay order have mitigated somewhat the problem left in the wake of Judge Richey's released opinion in the consolidated cases. His call for a three-judge court and the designation of that court for petitioner's challenge case123 have eliminated any pre-existing need for a stay pending consideration of those aspects of the litigation. There remains, however, the unsettled question of priority as between the challenge case and the consolidated cases. That is a matter retaining importance from the possible impact, upon presentation and treatment of constitutional contentions in the challenge case, of Judge Richey's determinations on ownership and privilege, in reference to the presidential materials, should they be ordered into operation.124

As we have stated, those determinations, once effective, may preclude petitioner from advocating in the challenge case any constitutional position hypothesizing ownership or privilege differently from Judge Richey's outcome on those scores.125 By the same token, the three-judge court, convened to render a decision on the Act's constitutionality, might find itself unable to view the Act in light of conclusions on ownership and privilege variant from Judge Richey's, and conceivably unable to pass on the Act at all. We are mindful that the need for a three-judge court in the challenge case is still uncertain.126 But it is clear enough that if that court is found to be jurisdictionally required, it must be indulged enough room to enable proper performance of the serious and difficult task of sound constitutional adjudication.127 Three-judge business is for three judges, not just one,128 and we cannot accept the notion that a single judge can unilaterally narrow the ambit of a three-judge tribunal.129 We think, rather, that it is for the three-judge court to define its area of proper concern in the challenge case, and to ascertain for itself whether Judge Richey's action amounted to a preemption of its prerogatives, particularly under the priority specification of the Act.130

Had the three-judge court been convened promptly after the filing of the challenge case, it could have avoided the dilemma now confronting it. It could have adjudicated the priority question and, if its ruling favored priority for the challenge action, it could have enjoined the parties to the consolidated cases from proceeding further toward a decision on the merits.131 But with the consolidated cases decided and lacking only an implementing order when the three-judge court came into being, there appears to be no method whereby that court might now implement any conclusion it might reach that the challenge case has priority.132 Rather, the choice, as we see it, is between a stay of any order effectuating Judge Richey's decision in the consolidated cases until the three-judge court can decide the priority question and proceed accordingly, on the one hand, and relegating that question to an appeal from Judge Richey's decision, to be made possible by dissolution of the stay and entry of an order on the opinion.133 The choice is thus thrust upon us, and the question is which of the two courses open to us is best calculated to serve the interests of the litigants and the litigations. We settle upon the stay route in lieu of the appeal route.

The route by an appeal in the consolidated cases with adjudication of the priority issues before examination of the merits, to speed resolution has some attractions. We do not lightly stay judicial decisions which may in the long run turn out to be correct. Our stay will retard, for a while, the progress of an appeal from the decision in the consolidated cases. Additionally, the three-judge apparatus is not to be utilized freely, but only and strictly as Congress has prescribed.134 These considerations have been carefully weighed as we have deliberated on the two alternatives open to us.

In support of continuation of the stay, petitioner has suggested that its dissolution would greatly diminish his chances of reversing determinations adverse to his assertions of ownership of the presidential materials and privilege to shield them from outside scrutiny. Should the stay be lifted, petitioner's avenue for review of Judge Richey's conclusions on those issues would, of course, be the normal appeal of right to this court and, if necessary, an application to the Supreme Court for a writ of certiorari, the granting of which is discretionary. The suggestion is that with the stay viable and the three-judge court thus free to decide the ownership and privilege claims for itself, petitioner could appeal, as a matter of right, directly to the Supreme Court if the three-judge court rejected them.135 We note, however, that petitioner could gain this supposed benefit only if the three-judge court denies a preliminary injunction, or by final order a permanent injunction, against enforcement of the Act;136 should the court decide that the challenge action is not one requiring three judges,137 or should it decide that the Act is unconstitutional but an injunction is unnecessary,138 appellate review must begin in this court. And if, on a point short of federal constitutionality, injunctive relief should be refused, it is debatable whether a direct appeal to the Supreme Court would offer any advantage over the appellate path through this court.139 Moreover, even aside from these possibilities, which we are in no position to gauge, there is the question whether in any event the supposed benefit for which petitioner strives is sufficient reason to warrant continuation of the stay.

We need not ponder further this suggestion or the factors favoring the appeal route over the stay route, for another factor dictates our conclusion. The stark truth of the matter is that either method could retard one of the two litigations the consolidated cases surely by a stay, or the challenge case perhaps by collateral estoppel and in this milieu we find guidance in what Congress has said and done. We have adverted to the provisions explicitly requiring "immediate consideration and resolution" of any challenge to Title I of the Act,140 and "priority (of such challenge) on the docket of the (District) (C)ourt over other cases."141 We have meticulously explored the Act's legislative history,142 and there have seen the consummated effort to speedily enact this legislation,143 and the congressional intent that challenges to its validity proceed through the courts with all possible expedition.144 Utilization of the appeal route, as the means of dealing with Judge Richey's decisions on ownership and privilege in regard to the presidential materials, would delay consideration by the three-judge court of the full panoply of considerations affecting the constitutionality of the Act; it could, in practical effect, halt the work of the three-judge court until completion of appellate review of the consolidated cases in this court, and possibly in the Supreme Court. On the other hand, continuation of the stay would enable the three-judge court to proceed immediately to the priority issue without the limitations which Judge Richey's determinations may impose. In sum, only the stay route can preserve the possibility of "immediate consideration and resolution" of the challenge case on a basis of "priority . . . over other cases," while the appeal route would stand congressional purpose on its head. When this factor is placed on the scale, the balance clearly favors a continued stay.

Our stay is, of course, for the protection of the three-judge court, a protection it seemingly is unable to erect for itself. It is designed to place the parties in approximately the same positions they would have occupied had the three-judge and priority questions been given the early attention they deserved. The stay will remain in effect for as long, but only so long, as the three-judge court may need it. Now constituted, the court presumably will determine whether the challenge case is properly before a court of three judges and, if so, whether adjudication of that case should precede effectuation of Judge Richey's decision by entry of an order in the consolidated cases. Should the three-judge court answer either the three-judge question or the priority question in the negative, the occasion for the stay will end at that point, as it will whenever that court concludes on any other ground that the stay has served its purpose. Otherwise, the stay will endure until the three-judge court has rendered its decision on petitioner's constitutional challenge. Meanwhile, the court has but to make known its wishes in regard to the stay, and we will be prepared to honor them.

The motion for reconsideration of our earlier disposition of the mandamus petition is granted. The motions to vacate our stay are denied.145 The stay will remain in effect until further direction by this court. An appropriate order will accompany this opinion.