## Facts

- The Secretary of Agriculture created the National Advisory Committee on Microbiological Criteria for Foods to advise on developing microbiological criteria for foods.
- The committee’s procedures contemplated members from federal agencies responsible for food safety, state or municipal regulators, the food industry, and academia.
- At suit, the committee had 19 members, including federal agency employees, state officials, academic scientists, private research-firm employees, and private food-company employees.
- Public Citizen and related organizations alleged the committee’s recommendations would affect consumers and public health.
- Plaintiffs claimed the committee violated the Federal Advisory Committee Act (FACA) because it lacked representatives from consumer or public health organizations and was at risk of industry “inappropriate influence.”

## Issues

1. Whether plaintiffs had Article III standing and presented justiciable claims to challenge advisory committee composition under FACA § 5(b)(2)–(3).
2. If the claims were justiciable and plaintiffs had standing, whether the committee’s membership was not “fairly balanced” and was subject to “inappropriate influence” in violation of FACA § 5(b)(2)–(3).

## Decision

- The court of appeals affirmed the district court’s dismissal; no single rationale commanded a majority.
- Judge Silberman would affirm because plaintiffs lacked standing and the FACA composition claims were non-justiciable.
- Judge Friedman would affirm on the merits, concluding plaintiffs had standing and the claims were justiciable but the committee satisfied FACA’s balance requirements for a technical, scientific advisory body.
- Judge Edwards would find standing and justiciability and would reverse on the ground that excluding consumer/public health representation rendered the committee unlawfully unbalanced and susceptible to special-interest influence.

## Legal Principles

- FACA requires advisory committees to be “fairly balanced” in light of the points of view represented and the functions to be performed, and to be structured to avoid “inappropriate influence” by the appointing authority or special interests.
- In a fragmented appellate decision, the judgment may be affirmed without a controlling majority rationale, limiting the decision’s precedential force to the result and leaving doctrinal questions contested.
- Views expressed in separate opinions reflect competing approaches: (i) FACA balance claims may fail for lack of standing or as non-justiciable; (ii) if reviewable, “fairly balanced” may be assessed flexibly with deference to agency choices for technical committees; (iii) committees affecting broad public interests may require meaningful inclusion of consumer/public health viewpoints to satisfy FACA and avoid special-interest dominance.

## Conclusion

The D.C. Circuit affirmed dismissal of the challenge to the committee’s composition, leaving the committee intact; the panel’s split opinions provided conflicting approaches to standing, justiciability, and what FACA’s “fairly balanced” and “inappropriate influence” requirements demand in practice.


Public Citizen v. Nat’l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419 (D.C. Cir. 1989)