* [Reproduced from the Slip Opinion provided by the United States Court of Appeals for the District of Columbia Circuit. The Opinion for the Court was filed by Circuit Judge Ginsburg, The Dissenting Opinion, at I.L.M. page 336, was filed by Circuit Judge Bork.]

1 Routine name checks are ordinarily made in these cases through United States intelligence agencies. The State Department has acknowledged that “No recommendations were received from the Department of Justice or any of its components”regarding the visa requests involved in this litigation. Affidavit of Lawrence S. Eagleburger, reprinted in Joint Appendix at 140⁃41 (affidavit also acknowledges that information supporting visa denials for foreign policy reasons often includes “data and analyses from the United States law enforcement and intelligence communities“)

2 On October 4, 1985, acting pursuant to §212(f) of the Immigration Act, 8 U.S.C. §1182(f) (1982), President Reagan issued a proclamation suspending the entry into the United States of officers or employees of the Cuban government or the Cuban Communist Party. See Proclamation No. 5377, 50 Fed. Reg. 41329 (1985). If this Proclamation covers Finlay and Lezcano, the President's directive might constitute an independent intervening cause for future exclusions, and thus render the City of New York case moot. See Los Angeles v. Davis, 440 U.S. 625, 631 (1979). The current record, however, is inadequate to enable us to determine, dispositively, whether the October 4, 1985, Proclamation would bar the entry of these women. Compare Affidavit of Louis P. Goelz, Reprinted in Joint Appendix at 164-65(stating that Finlay is an official of the Cuban Communist Party and a member of the National Committee of the Federation of Cuban Women and Lezcano, an official of the Federation of Cuban Women), with Affidavit of Olga Finlay, Reprinted in Joint Appendix at 216(stating that the affiant is Not a member of the Cuban Communist Party and that the Federation of Cuban Women is Not an instrumentality of the Cuban government or the Communist Party) and Affidavit of Leonor Rodriguez Lezcano, Reprinted in Joint Appendix at 245 (same). We decline to decide this mootness issue on the scant record before us. The same issues are raised by all three consolidated cases; a finding that City of New York has become moot would Not relieve this court of the responsibility to decide those common issues. We therefore leave the question of the impact of the President's Proclamation to the district court on remand. We Note, however, that the issuance of this Proclamation provides support for one of the plaintiffs’ arguments: even if the court were to find that subsection (27) cannot be applied to bar aliens whose mere entry would threaten United States foreign policy interests, the Executive would Not be helpless in the face of such a threat. He may act pursuant to section 1182 (f) to suspend or restrict “the entry of any aliens or any class of aliens” whose presence here he finds “would be detrimental to the best interests of the United States.” The President's sweeping proclamation power thus provides a safeguard against the danger posed by any particular case or class of cases that is Not covered by one of the categories in section 1182(a). See Brief of Plaintiffs-Appellants at 40-42. Thus, we need Not reject, avoid, or augment the formulation Congress adopted in subsection (27) in order to preserve the President's potency in this area. Cf. Dissent at 4-5.

3 The Immigration Act and related regulations provide explicitly for the participation of United States family members or employers in visa applications by certain aliens to whom they are connected. See 8 U.S.C. §§ 1151-1154 (1982) (immediate relative petitions) ; 8 C.F.R. § 204 (1985) (same); 8 C.F.R. §212.8 (1985) (employer petitions). The plaintiffs in this case, however, are neither family members Nor employers of the aliens in question. Therefore, they have No right to participate in the administrative process, and No attendant claims for relief, by virtue of these provisions. Nor does any other provision of the Immigration Act explicitly or implicitly authorize the claims in suit. See Cort v. Ash, 422 U.S. 66,78 (1975).

4 Section 702 affords a right of review to “[a] person suffering a legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the meaning of a relevant statute.”5 U.S.C. § 702 (1972).

5 The Mcgovern Amendment, see supra at 4-5, adds force to the position that plaintiffs suffered an injury that arguably falls within the zone of interests of the relevant law. See infra at 23-25.

6 The government cites Block v. Community Nutrition Institute, 104 S. Ct. 2450, 2456 (1984), as support for the proposition that a history of judicial construction barring review and congressional acquiescence in that construction may override the general presumption favoring review.That proposition, while true, is irrelevant to this case. Unlike the statute in Block, the statute in this case explicitly provides for judicial review.See Block, 104 S. Ct. at 2457.To override the language of a statute, indirect evidence of congressional intent, such as acquiescence in judicial construction, must be strong. Cf. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)(“Absent a clearly expressed legislative intent to the contrary, [statutory] language must ordinarily be regarded as conclusive.“). Moreover, the Block rule is inapplicable to this case because there exists No longstanding judicial practice of refusing to review claims like those raised here.Cf. Block, 104 S. Ct. at 2454-56 (holding that statute precludes judicial review of consumers’ claims although it allows review of milk handlers’ claims). This case involves claims by United States citizens rather than by aliens, unlike Karmali v. Immigration and Naturalization Service, 707 F.2d 408 (9th Cir. 1983); claims concerning the decisions of State Department officials rather than consular officers abroad, unlike Castaneda-Gonzalez v. Immigration and Naturalization Service, 564 F.2d 417, 428 n.25 (D.C. Cir. 1977); and statutory claims that are accompanied by constitutional ones. The defendants have Not produced a single case, and the court is aware of None, in which this kind of claim was found to be outside the province of the federal courts.On the contrary, in a case specifically addressing this type of claim, the Third Circuit found that the APA applied and the court reviewed the merits of the claim. See Acosta v. Gaffney, 558 F,2d 1153, 1156 (3d Cir. 1977)

7 This characterization of the government's reasons may be gleaned from publicly available documents. See Affidavit of Lawrence S. Eagleburger, Reprinted in Joint Appendix at 141-43 (Noting the membership or affiliation of each excluded alien); Affidavit of Louis P. Goelz, Reprinted in Joint Appendix at 162-65 (same); see also Abourezk, 592 F.Supp. at 888 (giving a general description of the reasons stated in the classified affidavits). This court has also examined the reasons offered in the in camera affidavits; they do Not decrease our concern over the inaccuracy of the State Department's public Representations that these visa denials do Not in any way forecast the results of a future application.

8 In addition, the plaintiffs assert that they are suffering a present and continuing harm in the form of the “chill” that the challenged State Department policy places on their first amendment interest in hearing foreign speakers. United States audiences are reluctant to extend invitations to foreign speakers, plaintiffs urge, for fear that the aliens may be subjected to the embarrassment of being denied a visa on the ground that they pose a danger to the public welfare. Similarly, the alien invitees may be unwilling to accept invitations when the price is to submit to such “ideological scrutiny.” See Brief of Amici Curiae American Association of University Professors et al. at 12-13 (presenting examples of chilling effect). In the first amendment area, such “chill” has long been recognized by the courts as a harm independent from the actual application of the challenged statute. See Thornhill v. Alabama, 310 U.S. 88, 97 (1940) (“It is Not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.”

9 The Senate Reports both state that [u]nder existing law, among the excludable aliens are certain aliens who seek to enter the United States whose entry would be prejudicial to the public interest or would endanger the safety of the United States. The committee has broadened this class of excludable aliens to include those aliens who seek to enter the United States to engage in activities which would endanger the welfare of the United States. S. Rep. No. 2230, 81st Cong., 2d Sess. 5 (1950); S. Rep. No. 2369, 81st Cong., 2d Sess. 10 (1950).

10 The Conference Committee Report states that the relevant section provides for the exclusion from the United States of aliens seeking to enter for the purpose of engaging in activities which are prejudicial to the public interest and dangerous to the welfare or safety of the United States, whether or Not such aliens seek to enter the United States solely, principally, or incidentally for such purpose. Existing law merely provides for the exclusion of aliens if the Attorney General knows or has reason to believe that such aliens are seeking to enter the United States to engage in activities which would endanger the public safety of the United States.H.R. Rep. No. 3112, 81st Cong., 2d Sess. 54 (1950).

11 The Dissent finds strongest support for the State Department's reading in the legislative history of a bill enacted in 1941 containing a prescription from which subsection (27) was later derived. Dissent at 7-9.We do Not find the history of the earlier formulation as clear as the Dissent con-tends it is. On the contrary, one searches all the legislative history in vain for an illustration homing in on the question at issue. Thus, one can only speculate on what the legislative Report participants had in mind when they made their seemingly interchangeable references to “entry” and “activities.” Conceivably, as the Dissent presumes, they believed “activity” embraced the “act” of entry. Or, they may have understood “entry” to implicate activities likely to be pursued upon admission. At least as plausibly, their word choices were casual and inadvertent, Not motivated or informed by the precise consideration at issue in the instant cases. In sum, we think it plainly wrong as a general matter, and in this case in particular, to regard committee Reports as drafted more meticulously and as reflecting the congressional will more accurately than the statutory text itself. Committee Reports, we remind, do Not embody the law. Congress, as Judge Scalia recently Noted, votes on the statutory words, Not on different expressions packaged in committee Reports. Hirschey v. Ferc, 777 F.2d 1, 7-8 & n.l (D.C. Cir. 1985) (Scalia, J., concurring).

12 There is No possibility of congressional acquiescence in a longstanding judicial construction. The parties have uncovered only two court cases, in addition to this one, concerning the scope of subsection (27). In El-Werf alii v. Smith, 547 F.Supp. 152 (S.D.N.Y. 1982), the court held that a Libyan student seeking to enter the United States in order to study airplane maintenance was properly excluded under subsection (27). While such study does Not rise to the level of subversive activity, it clearly constitutes an “activity” exceeding mere presence. In Allende v. Shultz, No. 83-3984-C (D. Mass. April 2, 1985), the court did Not reach this precise issue because it held the government's reasons for exclusion inadequate on other grounds. See infra Note 16. Thus, judicial opinions provide No grounding for the State Department's interpretation.

13 In 1959, 1961, and 1962, the State Department refused a visa to Thomas W.I. Liao, the self-appointed leader of a movement to establish an independent Formosa. The Department found that there was “a clear incompatibility between Mr. Liao's projected activities while in the United States and our foreign policy objectives with respect to Taiwan and the Republic of China.” Second Affidavit of Louis P. Goelz, Reprinted in Joint Appendix at 306. In July of 1964, the Department also denied a visa to Mme. Ngo Dinh Nhu, the sister-in-law of the late Prime Minister of Vietnam, on the ground that “her expected activities would only serve as a demoralizing influence on the people and Government of Vietnam,” which the United States was committed to supporting. Id. at 308.

14 The Dissent suggests, and we ackNowledge, that such information may be difficult to find or inconclusive. See Dissent at 12-13. Given this record, however, one can only offer guesses, bets, or suspicions about the existence or weight of such evidence. We do Not think it proper to prejudge this issue on a barren record and thereby short-circuit the inquiry into congressional intent. The district court, upon fuller consideration, may find the evidence of congressional acquiescence insufficient in quantity or quality, but that judgment, we think, should be made after an examination of the available evidence, Not before.

15 We Note in this regard that the government has named a few persons to whom visas were denied, allegedly under the authority of subsection (27), and has Not suggested that any privilege would shield a further listing of cases in point.

16 “The district court in Allende v. Shultz, No. 83-3984-C (D. Mass. April 2, 1985), adopted this view. Finding it “unnecessary …to scrutinize the parameters of subsection (27),” the court recognized that traditional principles of statutory construction required that “[a]mong the classes of aliens to which subsection (27) does Not apply are those which fall squarely within the ambit of one of the other thirty-two statutory categories ….” Id. at 8. “Because subsection (28) directly encompasses Mrs. Allende's membership in [two communist organizations],” the court held that “her affiliation with these organizations is Not, in itself, a ‘facially legitimate and bona fide’ reason for her exclusion within the meaning of subsection (27).” Id. at 9 (quoting Kleindienst v. Mandel, 408U.S. 753,770 (1972)).

17 Final Act of the Conference on Security and Co-Operation in Europe, Aug. 1, 1975, Dep't of State Pub. No. 8826 (Gen. For. Pol. Ser. 298), Reprinted in 14 I.L.M. 1292 (1975).

18 Nothing in our analysis inhibits the State Department from using a group affiliation to deny visas to members of terrorist groups, see Manual, supra at 20, or organized crime syndicates,

19 The government has offered No evidence of congressional acquiescence in an administrative practice that would alter our view that the legislature did Not cast subsections (27) and (28) as interchangeable parts.Indeed, when asked at oral argument, government counsel was unable to identify any case other than this one and Allende, No. 83-3984-C(D. Mass. April 2, 1985), in which subsection (27) was used to deny a visa to an alien to whom subsection (28) applied. See Tran script of Proceedings at 41-42, Abourezk v. Reagan, No. 84- 5673 (D.C. Cir. Sept. 23, 1985

20 The Dissent argues that the Mcgovern Amendment retains its vitality even without the interpretation we embrace today. Without the Mcgovern Amendment, subsection (28) would pose a presumptive bar to the entry of any member of a Communist organization. The Dissent points out that the State Department has Not explicitly revived that policy of general exclusion, it has simply determined to exclude members of those subsection (28) organizations it believes to be affiliated with certain foreign governments. See Dissent at 22. The Dissent makes the practical prediction that Not all subsection (28) organizations will be so affiliated, and therefore finds that the Mcgovern Amendment is left intact. The Dissent's analysis, we believe, is flawed in this respect: the issue turns Not on practical predictions but on the possession of power.If the State Department's current policy entails the power to achieve precisely the same results as under subsection (28) before the Mcgovern Amendment, then it is small virtue that those results Now can be achieved without explicitly reviving a policy of ideological exclusion. Under the Dissent's interpretation of the statute, the State Department may exclude someone simply by pointing to her membership in a subsection (28) organization; the additional, conclusory assertion that the organization has certain affiliations provides No safeguard because the assertion may be offered in every case and cannot be questioned or reviewed by any court. See Dissent at 17 n.4. A statement thus walled off from any effective challenge scarcely qualifies as a reason. The State Department therefore remains armed with the power to exclude all members of subsection (28) organizations for foreign policy reasons. That is precisely the power the Mcgovern Amendment was designed to revoke. We conclude that the State Department's approach does Not leave the Mcgovern Amendment intact and that the more stringent standard we adopt is necessary to effectuate congressional intent. This standard will also leave intact the independent scope of subsection (27).For example, all four of the illustrative applications of (27) in the State Department's Manual, see supra at 20, would still be appropriate under our view of the respective provinces of the two clauses.

21 The Dissent suggests that this interpretation creates a “favored entry status” for communists: members of organizations Not included in subsection (28) can be excluded on foreign policy grounds under subsection (27) simply because their membership links them to a hostile foreign government, but members of subsection (28) groups cannot. See Dissent at 23. The Mcgovern Amendment was, however, a response to the historically disfavored position of subsection (28) organizations. The imaginary Council in the Dissent's hypothetical never suffered from the explicit ideological exclusion embodied in subsection (28) or the extreme and general public hostility that motivated Congress to include that subsection in the Act in 1952.See generally The Meaning Of MCCarthyism (E. Latham ed. 1965)(a collection of essays on the causes and effects of McCarthyism). Congress could reasonably have believed that these special disabilities warranted special precautions where subsection (28) organizations were concerned. If a member of a subsection (28) group poses a threat to national security, she stands on the same footing as a similarly threatening member of any other type of group. But where No such threat is present, Congress determined that a close look is in order, in fidelity with the Helsinki Accords, see supra at Note 17, before the United States excludes members of subsection (28) organizations. This closer look insures that the longstanding practice of excluding such persons under subsection (28)—which codified an historically demonstrated animosity—does Not taint exclusions after the Mcgovern Amendment's Repudiation of that animosity.

22 The Dissent describes our “independent reason” safeguard as ineffective, entirely vulnerable to the power the Attorney General holds: he may deny a visa under subsection (28) despite the Secretary's recommendation of entry. See Dissent at 24-25. Foreign policy, however, is the Secretary's specialty; it is Not the Attorney General's customary field. Our decision, it is true, in No way prevents the Attorney General from venturing into the foreign policy domain. But we expect, as we assume Congress did when it adopted the Mcgovern Amendment, that instances in which the Attorney General rejects action in the foreign policy realm that the Secretary recommends will be extraordinary. In sum, Congress apparently designed the Amendment with the traditional division of responsibility between the two executive departments in full view. Such divisions of responsibility, and the closely kept balance of powers that results from them, have long been regarded as an effective check on the disingenuity of individual public officials. See The Federalist No. 51, at 344-45 (J. Madison) (P. Ford ed. 1898). So long as the traditional allocation of responsibility between the two departments is maintained, Congress’ action and our endeavor to assure its vitality should Not be exercises in futility

23 Perhaps the State Department has shied away from this rationale in part because it is problematic whether all of these aliens have independent affiliations with hostile governments. Tomas Borge clearly has such a connection: he holds a cabinet post in the Nicaraguan government. But some of the other speakers in this case lack such an unambiguous connection to a hostile foreign government. For example, if Nino Pasti has any governmental affiliation, it is to the Italian government, in which he served as both a Senator and a General in the armed forces. See Affidavit of Louis P. Goelz, Reprinted in Joint Appendix at 163. Of course, No one—neither the State Department Nor the Dissent—argues that Pasti was, or should be, excluded because of a connection to the government of Italy. Instead, the suggestion is that Pasti's affiliation with the Soviet government warrants his exclusion. This alleged affiliation consists, however, solely and simply in Pasti's participation in the World Peace Council, an organization clearly covered by subsection (28) and the Mcgovern Amendment. See Affidavit of Louis P. Goelz, Reprinted in Joint Appendix at 163. Similarly, Leonor Rodriguez Lezcano, so far as the current record indicates, has never held public office in Cuba or actively Represented the government of that country. Her affiliation with the Cuban government apparently arises, according to the State Department, because of her participation in the Federation of Cuban Women, a subsection (28) organization. See id. at 164-65. Thus, we do Not Now comprehend any basis for claiming that these two visa applicants have governmental affiliations independent of their membership in subsection (28) organizations.

24 Because we find that questions remain concerning the State Department's compliance with the statutory requirements, we do Not reach the plaintiffs’ constitutional claims. We therefore express No opinion about the section of the district court opinion devoted to the analysis of those claims.

1 Defendants have raised before us, as they did below, the question of whether plaintiffs have standing to mount a statutory challenge to these exclusions. They concede that the Supreme Court has already implicitly decided the issue of whether plaintiffs who wish to meet with excluded aliens have standing to raise a constitutional (first amendment) claim. Kleindienst v. Mandel, 408 U.S. 753 (1972). They argue, however, that the associational rights sufficient to confer first amendment standing in this case provide No standing to contend that the government lacks statutory authority for the exclusions. The two sets of claims, however, cannot so easily be broken apart. A court faced with this constitutional challenge must first construe the statutes to determine whether they authorize what was done and, if so, whether they pass constitutional muster. It would be extraordinary if the court found that the statutes did Not authorize the exclusions, thus the first amendment did Not invalidate the statutes, but, since the challenge and standing were based on the first amendment, the court was without power to rule the unauthorized exclusions illegal. This would be witty, No doubt, but it smacks too much of the hairsplitting that brought the old rules of common law pleading into disRepute. When the actions of the executive branch are challenged as violative of constitutional rights, the issue of the scope and source of executive authority necessarily becomes part of the analysis in which a court is required to engage. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 679 (1952), the Supreme Court invalidated President Truman's seizure of a steel mill because it was authorized neither by an explicit grant of power from Congress Nor by any inherent Executive power. Had President Truman relied Not on his inherent authority but rather upon a statute which did Not in fact confer upon him the necessary power, his act would have been invalidated Nonetheless. That is the situation the majority thinks may exist here. Whether the majority is right or wrong on the statutory issue, there can be No question that appellants have standing to raise it.

2 As the majority Notes, there is already some evidence in the record of prior administrative interpretation supporting the government's position. The State Department Manual lists four “type cases [that] are illustrative, but …by No means exclusive, of those involving a determination of the applicability” of subsection (27). One of the four type cases consists of [a]liens who are Notorious for allegedly engaging in excesses, including physical brutality while in political power in their native land, or who were prominently identified with any former regime which did so. Foreign Affairs Manual, pt. II, § 41.91 (a) (27), Reprinted in 6 C. Gordon & H. Rosenfeld, Immigration Law and Procedure 32-214.18 (1985). The concern reflected here has Nothing to do with the specific activities in which these aliens are expected to engage while in the United States, but is rather an expression of disapproval of brutal governments; hence the exclusion of those “identified” with such regimes. The majority also discusses three specific past exclusions under subsection (27) cited by the government and concludes that only one of the three was in fact an exclusion on the basis of prejudicial entry. Maj. op. at 21 & n.13. I think it only fair to Note, however, that the government did Not cite these examples for the purpose of supporting its argument that prejudicial entry alone is sufficient to merit exclusion. They were invoked instead to support the wholly separate point, accepted by the majority, that damage to foreign policy interests has been considered "prejudicial to the public interest." See Brief for Appellees at 54. Finally, the majority makes reference to the conflicting affidavits submitted by the parties. Maj. op. at 19. The affidavits of Lawrence S. Eagleburger, at the time the Under Secretary of State for Political Affairs, and Lewis Goelz, Deputy Assistant Secretary of State for Visa Services, support the government's position. J.A. at 138, 159-60. Plaintiffs have submitted the affidavit of Leonard Meeker, former Legal Adviser to the Department of State, which contradicts the position taken in the government's affidavits. J.A. at 250-52. Mr. Meeker's affidavit, however, offers an interpretation of subsection (27) that the majority has in part explicitly rejected—specifically, that subsection (27) only authorizes denial of visas to "aliens whose anticipated activities in the United States would create dangers to this country of a gravity comparable to espionage and sabotage," such as "murder, mob violence or terrorism." J.A. at 251-52; contra maj. op. at 15-16. Such an interpretation is belied by the three specific examples of past exclusions described in the majority opinion, and would render subsection (27) entirely duplicative of sub- section (29), which requires the exclusion of all aliens “with respect to whom the consular officer or the Attorney General kNows or has reasonable ground to believe probably would, after entry, (A) engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security ….” An interpretation of subsection (27) that would render it superfluous, and therefore meaningless, is suspect. See 2A N. Singer, Sutherland Statutory Construction § 46.06 (Sands 4th ed. 1984). The fact that the majority has rejected the construction of “prejudicial to the public interest” that the Meeker affidavit claims was adopted by the executive branch in previous years does Not, of course, mean that the majority cannot give any weight at all to the account in the affidavit of prior interpretations of “activities,” since it was only the latter issue that the majority felt unable to resolve without resort to prior administrative interpretations. Nevertheless, it does cast some doubt on the validity and usefulness of the Meeker affidavit, and the extent to which it can be said to undermine the government's position sufficiently to make a remand necessary.

3 The majority cites Kent v. Dulles, 357 U.S. 116, 128 (1958), in characterizing the evidence before us as evidence of “scattered rulings …Not consistently of one pattern.” In Kent V. Dulles, however, the Court justified that higher burden of proof placed on the government by reference to the difficult and important constitutional issues implicated by the government's policy. The plaintiffs before us, however, have Not presented a single plausible constitutional argument. See supra Part IV

4 In cases of this sort, plaintiffs may dispute the United States’ view that visa applicants are participants in or affiliated with certain foreign governments. In this case, for example, Finlay and Lezcano, in affidavits filed below, deny that the Federation of Cuban Women is controlled by either the Cuban government or the Cuban Communist Party, J.A. at 216, 245, and the plaintiffs “deny that Mr. Nino Pasti participates in the World Peace Council as an ‘instrumentality’ of the Soviet government,” and state that they “have No information bearing on the accuracy of this characterization for the Council itself.” Plaintiffs’ Statement of Genuine Issues at 4, J.A. at 175. If the majority means to suggest that these disputes are open to judicial resolution, see maj. op. at 6-7 n.2, then it is making an assumption I find extremely dubious. First, such questions, while containing elements of fact, are largely interpretive. Determining the point at which one institution's influence over aNother becomes “control” requires a series of policy decisions courts are unequipped, and unauthorized, to make. Second, even if such determinations were within our power and competence, they would require information that might well be too sensitive for the Executive to submit, even in camera. We do Not possess, and cannot demand, all of the same detailed and confidential information at the disposal of the Executive. Indeed, even if we had that information, we would Not have the surrounding kNowledge of such things as the methods of communist operations and linkages to place the information in context. Courts cannot Replicate the expertise of the Department of State and proceed to take over the Department's functions. Third, the actual issuance of judicial proNouncements on the question of who is or is Not an instrument of a foreign government, and the process of examination that would proceed them, carry the potential of significant disruption of our country's foreign policy. In order to decide whether the Federation of Cuban Women, for example, is in fact “controlled” by the Cuban government, a court would presumably have to define the degree of influence necessary to constitute “control” and proceed to examine, through witnesses, documentary evidence, and public affidavits, if possible, the conflicting factual assertions and interpretive characterizations made by the private parties and the United States government. The court would wish to examine formal titles and organization charts, but would need in addition to analyze the more informal ways in which the Federation made its decisions and conducted its activities, to see if there existed a veil that needed piercing. Indeed, the foreign governments themselves might wish to participate, and submit their own affidavits disavowing any connection with the visa applicants. Under the Act of State doctrine, we might well be precluded from reaching a decision contrary to the assertions contained in such affidavits, for we would be “inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory.” Banco Nacional de Cuba v. SabbatiNo, 376 U.S. 398, 401 (1964). A United States court ought Not lightly undertake a role in which it must issue a public proNouncement that either the United States or a foreign government is untruthful about an issue of intergovernmental relations. Few exercises could be further outside the bounds of judicial competence, or more intrusive with respect to the conduct of foreign affairs. The United States’ characterizations of the relationships between the visa applicants and foreign governments in this case cannot, therefore, be open to legal challenge.

5 I do Not understand the reliance placed by the majority on the fact that previous visa requests by the same applicants have been granted, maj. op. at 29, for that in No way calls into question the legitimacy of the government's position. The defendants have Not specified before us the reasons for granting the earlier requests because they were Not at issue in these cases. In any event, we certainly ought Not to require the government to come into court and justify each past visa decision in order to prove a pattern of integrity. That would involve courts in judging the reasonableness of this aspect of United States foreign policy, a task for which they are wholly unsuited. It is for the Executive, and Not for courts, to determine when the relevant factors have changed, or when it is appropriate to change tactics even though circumstances remain the same. Additionally, requiring the Executive to justify a pattern of visa grants and denials would force the Department of State either to discuss highly sensitive matters in a public forum or to forego its authority to deny many visas. The denial of a visa is Not a declaration of war; it may be a reflection of any of a number of specific and unReported developments affecting relations between nations. Even in relationships long characterized by hostility, there are thaws and chills, conciliatory gestures and confrontational ones. The government is certainly Not required to choose between denying all visa requests coming from one country or individual or None at all, and is certainly free to determine that reducing access without eliininating it entirely constitutes an appropriate and measured policy.