Judge Eric Vitaliano
Informed by the D.C. Circuit's ruling in Armstrong v. Exec. Office of the President, district court dismissed Main Street Legal's Freedom of Information Act (FOIA) suit to require the National Security Council's (NSC) production of records about drone strikes for targeted killings of suspected terrorists. The NSC is not an "agency" subject to FOIA. Established in 1947, the NSC was formally placed within the Executive Office of the President in 1949. In addition to chairing the NSC, the president appoints its executive secretary, who reports directly to the president's National Security Advisor. The court found the operational proximity between the president and NSC exceptionally close. It also agreed with Armstrong's finding that the NSC's delegated powers consist of advising and assisting the president in matters of national security. Executive orders that Main Street cited as evidence of the NSC's independent authority reinforced the NSC's "transparently advisory nature." Also despite previously considering itself subject to FOIA, the NSC withdrew regulations to that effect 20 years ago, just as the Justice Department's Office of Legal Counsel withdrew, in 1993, a 1978 opinion that concluded the NSC was an "agency" under FOIA.
