today. The issue is, what are the problems today and what are the best methods of dealing with those problems today.

The best methods of dealing with those problems today, on behalf of the Congress, on behalf of the executive branch, is to have the agencies and bureaus submit their data to the executive branch for it to provide additional viewpoints, additional understandings, broader perspectives to add that additional value to that information for the benefit of congressional consideration; for the Congress to then have presented to it the total budget, because there are many factors that have to be considered simultaneously, and in the hearings that ensue for the Congress then to be able to inquire of all bureaus and agencies as it wishes, inquire about any information it wishes from the bureaus and agencies, even including the requests that may have come forth to the executive, but making it clear at that time that any such information that they had submitted was not from the point of view of a Presidential consideration but was merely from the narrow point of view of their own particular bureau or own particular agency.

That provides the Congress, first, all the information that exists, it provides it in the most useful way at a time most useful to it, enables the Congress to have the best possible means of considering that information in the light of deliberations that are taking place, a much more effective means of running the Government, both the executive and legislative branches, but I will acknowledge right at this point that it is not up to us to determine how best to run the Congress. Senator MUSKIE. Really?

Mr. Asн. It is, however, up to the Congress to make considerable propositions as to how best to run the executive.

Senator MUSKIE. I just say you have the most incredible exposition of the point of view which justifies the position on which these hearings are based. You have indeed, as executive, determined cutbacks, Congress' constitutional authority for appropriation, you have indeed done so. I have not heard a witness whose testimony has confirmed that conclusion more strongly in my mind than yours.

It is your view that you have the authority to spoon-feed us the information that you decide we ought to have and the way that you decide we ought to get it at the time that you decide we ought to have it. For you to be able to justify in your mind that attrition of the Congress' power of appropriations in the name of the President of the United States-to me that poses the real danger of the expansion of Presidential power that is represented in this issue. I am amazed. May I say to you, Mr. Ash, that in my judgment the only conceivable basis upon which you could justify that kind of expansion is some. definition of executive privilege.

Senator Ervin has directed me as chairman of the Subcommittee on Intergovernmental Relations to hold hearings on executive privilege and in the whole broad grav area of refusal by executive agencies to submit information to the Congress. I intend to hold such hearings and I will have you before that committee, and we will explore this exhaustively.

The doctrine you have just espoused, in my judgment, is a danger-ous doctrine, and I am not going to pursue the question any more. I think I have made myself eminently clear.

Senator CHILES. The time has expired and Senator Ervin now yields his time to Senator Metcalf, who takes Senator Muskie's time.

Senator METCALF. I yielded to Senator Muskie in light of this opportunity. Mr. Ash, I have read your statement you have presented. I note that you have made references to certain statutes and cited decisions, and while I do not agree with your interpretation, I know that you base your conclusions upon matters of law.

The other day I read in the Washington Star an interview that you had with Steven Aug. In that interview Mr. Aug indicated you do not favor funding of regulatory agencies out of the hands of the legislative, and then you are quoted as saying these agencies are not set up to be independent of the executive branch, but independent of the legislative branch.

Did you say that, Mr. Ash?

Mr. ASH. That is at least part of what I said. I may have elaborated further than that, but in research that I had done a couple of years ago, as to the original creation of the first regulatory agency, it is my recollection that in the discussions that took place at that time that what was in the mind of the Congress, or at least some of the Members of the Congress, and certainly was a part of that record, was that the regulatory agencies at that time were viewed as having independent regulatory functions, but the word "independent" did not mean what that has subsequently become to mean, at least did not mean only what that has subsequently come to mean, independent of

Senator METCALF. The information has not been available to the legal scholars and has not been available to the U.S. Supreme Court in passing on regulatory agencies.

I have done some research on regulatory agencies myself, particularly the Federal Power and Interstate Commerce Commissions, and go back to some cases in the Congress.

Let me read to you on what leading authorities on regulatory agencies say. Prof. Robert E. Cushman says Congress has the power to create independent regulatory agencies. "Independent" here means freedom from the normal control exercised by the President over his subordinates. We may accept the fact that Congress may constitutionally set up agencies free from the discretionary control of the President; do you agree with that?

Mr. Asu. Yes, absolutely.

Senator METCALF. That is an entirely different statement than you made, that independent agencies are not independent of the President but are independent of the Congress.

Mr. Asu. My statement was different than what you said.

My statement said that in the historical activities that gave rise to the first independent regulatory agencies that that was Senator METCALF. Which agency was that?

Mr. ASH. As I recall, although

Senator METCALF. Well, you are speaking as an authority, Mr. Ash: now come in here and tell us what is the basis for this incredible statement that you made.

Mr. Asi. I am not speaking as an authority on all the law that surrounds the regulatory agencies. In the statement that I made, and that is a part of it. I was attempting

Senator METCALF. Well, then, you do not know what you are talking about?

Mr. Ash. It is my best recollection of knowledge that I had 2 or 3 years ago, that in the creation of regulatory agencies in the first place, a considerable amount of the discussion at that time was that the word "independent" meant not independent from the executive branch explicitly, although later I agree that has come to take on that meaning. But I am referring only to that discussion that took place in the Congress, at the time of creating the independent regulatory agencies. It is my recollection from having looked into it 2 or 3 years ago that that was an element of the discussions that took place.

Senator METCALF. What agency was that, Mr. Ash?

Mr. Asm. I think it was ICC, but I am not sure that was the case. Senator METCALF. ICC was the first regulatory agency created, and, of course, it was in existence as a regulatory agency for a considerable time before we created the other regulatory agencies.

But I, too, have looked into the debates and discussions and came to the conclusion, that is the uniform conclusion of the courts and of the students in the law schools on this, that regulatory agencies have been called arms of the Congress. They are created as arms of the Congress, they have quasi-judicial and quasi-legislative powers delegated by the Congress to be independent of the President.

Now, I hope that you are not just speaking offhand on all this matter with all the knowledge and background that you seem to indicate here in talking about regulatory agencies.

Let me tell you what the leading case is, and that is Humphrey Executor v. U.S., 295 U.S. 602, which is a case on the Federal Trade Commission. It said the Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statutes in accordance with a legislative standard therein prescribed.

Do you think that the executive is supposed to carry out legislative powers?

Mr. Ash. I will join with you in every statement that you have made of what the independent regulatory bodies are. I was only then and am only now recounting my recollection of discussions that I recall having my research and analysis, I believe it was stated at the time of the creation of the ICC reflecting a state of mind at the time. I realize there have been tremendous developments of law and interpretation of law and regulatory agencies have a fairly precise place in the role of things today.

I was not then and am not now making any reference to the question as to what they are now. I was then and am now only relating to some of the surrounding discussion that took place at the time of the creation of the first regulatory agency, as you confirm, and as I recall, which was the ICC.

Senator METCALF. You believe, then, regulatory agencies are arms of the Congress at the present time?

Mr. ASH. They are arms of the Congress, and nevertheless have been included within the Budget and Accounting Act for the executive branch to deal with their budgets.

Senator METCALF. Do regulatory agencies exercise legislative power. delegated power?

Mr. ASH. Absolutely.

Senator METCALF. And judicial power?

Mr. Asн. And judicial.

Senator METCALF. And, therefore, they are subject to independence from the Executive who has only the power of appointment, the power of exercising control under the Anti-Deficiency Act and submission of the budget to the Office of Management and Budget?

Mr. AsH. I don't know under what act they submit their budgets to the Office of Management and Budget. I would not want to characterize a particular legal statute today in any fine detail relating to the regulatory agencies.

Senator METCALF. Well, you characterized it in your interview with Mr. Aug and, from what you have said yourself, have very vague recollections of what you remember about what the regulatory agencies were 2 years ago.

Mr. ASH. But I did not characterize them today. I characterized them in the process of what took place in the forming of ICC.

Senator METCALF. You said you did not favor them today because regulatory agencies as independent agencies are independent of the legislative branch and not independent of the executive branch.

Mr. As. That is exactly what was said. I did not say they are not. I may have shortened my discussion when I recounted that, in the earlier debates about the first regulatory agency, that was the way they were characterized, but that is quite different than saying what they have subsequently become.

Senator METCALF. Well, because of the special nature of the regulatory agencies today-I am now talking about them all, Interstate Commerce Commission, Federal Trade Commission, Federal Power Commission, and all the others do you believe the Office of Management and Budget should have the power to impound the funds that have been appropriated by the Congress to run those agencies?

Mr. Asi. I think the Attorney General can probably render an opinion better than I as to the power to impound funds in those agencies. Senator METCALF. You are going to be Director of the OMB. Are you going to recommend that funds be impounded in those agencies? Mr. Asи. It depends on what particular issue arises, what the legal rights are or are not to do so. I cannot answer the question in general, but I will recommend that the right thing be done under whatever circumstances arise.

Senator METCALF. Do you have legal counsel with you?

Mr. AsH. Mr. Bradley here.

Senator METCALF. Can he answer the question as to whether or not you believe that the OMB has power to impound the funds of the regulatory agencies?

Mr. BRADLEY. I do, Senator. I think it is a matter of degree. It may very well depend on what is being impounded, and I think the question is too hypothetical to give a precise answer at this time. Senator METCALF. As to the matter of degree of pregnancy. Last year before Senator Muskie's Subcommittee on Intergovern mental Relations, Chairman Kirkpatrick of the Federal Trade Commission testified that the OMB impounded $750,000 in funds, that as a result of that impoundment-$100,000 was restored-72 positions were

wiped out, which meant that enforcement of compliance of cease-anddesist orders were changed.

Now you are the one, according to Senator Muskie, that says that this is a Government, as far as the legislative branch is concerned, of special privilege and yet there are men down in the White House who are recipients of millions of dollars of campaign contributions.

Do you think you would impound funds from the Federal Trade Commission because somebody gave a campaign contribution and was subject to a cease-and-desist order?

Mr. Asm. It is a hypothetical question.

Senator METCALF. Do you have power to do that?

Mr. Asн. I am not sure exactly what the question is.

Senator METCALF. The question is do you have the power to say look, Mr. X contributed a million dollars to the campaign to reelect the President and is subject to the cease-and-desist order so we will say to the Federal Trade Commission you won't have any money to enforce that.

Mr. Asн. Of course not. That is no basis for any Presidential action or anything else.

Senator METCALF. Funds were impounded and there was an inability to enforce cease-and-desist orders, funds that you may have a special interest in that were impounded that prevented an investigation into joint ventures, Mr. Ash.

Do you think that OMB has the power to prevent an investigation into Litton Industries?

Mr. Asi. Fortunately or unfortunately, I don't know what was done last year and can't comment on any particular thing that was last year's action, but I do know that the actions that OMB recommends to the President are ones that in each and all cases it is doing first legally under the laws of the Congress, and second, doing in order to carry out its responsibilities.

Senator METCALF. Funds were impounded that prevented an investigation of multinational corporations.

Mr. BRADLEY. That was assuredly not done with that motive, Senator.

Senator METCALF. We will all make our own judgment as to the motives for the impoundment of these funds. Other cutbacks at the Federal Trade Commission included enforcement of the advertising substantiation program, enforcement of the inflammable fabrics law, and continuation of the automobile study.

Now, under what law, and I will refer to your counsel, what is the justification and the constitutional provision that permitted the impoundment of funds, that prevented the Federal Trade Commission from carrying out orders, enforcement of inflammable fabrics law and all these other matters that Chairman Kirkpatrick testified about last year?

Is your counsel prepared to answer?

Mr. BRADLEY. Sir, I have no recollection of that. I would suggest it is largely a matter of fiscal reasons or administrative reasons, but certainly nothing to do with their regulatory activities.

Senator METCALF. Mr. Kirkpatrick said that the reason that he didn't want to enforce that the President didn't want to enforce these com