(specially concurring):

I concur in the result reached by the majority. Regretfully I cannot concur in the opinion.

As the majority concedes, we must reverse and remand the instant case on the authority of Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir.1985). A short opinion so stating would be more in order than the lengthy discourse — almost a mini-treatise — on administrative law set forth in the majority opinion.

In many ways the majority seems to ignore the fact that the Romeiro opinion is *1019 on the books. It is, in my view, misleading, even if technically accurate, to assert that we can and do review “de novo” the “district court’s determination on issues of statutory interpretation including the scope of the notice-and-comment and publication requirements imposed by the APA and the FOIA.” See opinion Subsection A, “Standard of Review”. As concerns any statutory interpretation made by a trial court, this court’s review is, of course, “de novo”. But as concerns the questions of statutory interpretation involved in this case, including the questions concerning the notice- and-comment and publication requirements imposed by the APA and the FOIA, our review is not, and cannot be, de novo. In my view, those matters have already been decided for this Circuit in Romeiro.

I am troubled by the language of the majority opinion in which the majority “conclude”, after a lengthy discussion and analysis of the general statement of policy exception in 5 U.S.C. § 553 , that both the 1978 and 1981 Operating Instructions “satisfy [the] requirements” of the exception. In my view, the holding that both Operating Instructions met the requirements of the exception was made in Romeiro. As to the 1981 Operating Instruction, the Romeiro holding is explicit ( 773 F.2d at 1025 (1st col.)). As to the 1978 Operating Instruction, the Romeiro holding is clearly implicit because Romeiro had argued that the 1978 Operating Instruction was of such stature and dignity that it could not be validly superceded or repealed by a later instruction promulgated without the publication requirements of Section 553. The Romeiro court flatly rejected this argument. We are bound by Romeiro. Ours is not to “conclude” that Romeiro was (or was not) correctly decided. Therefore, my objection to the majority’s discussion of the general statement of policy exception (and particularly the extended analysis of its requisites and limitations) is that this discussion is dicta.

I am also troubled by the majority’s extensive discussion of the judicial reviewability of administrative decisions. In my view, that entire discussion is unnecessary to the decision of this case and is therefore also pure dicta. The instant case gets down to only one issue, i.e., whether the 1981 Operating Instruction was validly adopted. That is the only issue because Mada has conceded that (1) his petition was adjudicated under the 1981 Operating Instruction, and (2) if the 1981 Operating Instruction was validly adopted, he has no standing to complain about the decision which the Director reached in this case.

The dicta uttered by the majority on both matters, the Section 553 exclusion and reviewability, include many broad and sweeping statements. Once set loose into the stream of judicial opinions, such dicta are often quoted and used to decide future cases. These particular dicta ought not to be so used and we should not, by authoring them, take the risk that they will be so used. The question of which administrative actions are judicially reviewable, and which are not, was scarcely briefed in this case. There was no briefing of the distinction, enunciated by the majority, between judicial reviewability, on the one hand, and the notice-and-comment requirements on the other.

All of these dicta deal with important questions which will surely and squarely arise in future cases. The future consideration of these matters ought not to be influenced by dicta pronounced unnecessarily and without full briefing.

The Supreme Court has aptly stated in United States and Interstate Commerce Commission v. Alaska Steamship Company, 253 U.S. 113, 116 , 40 S.Ct. 448, 449 , 64 L.Ed. 808 .

It is, in a sense, unfortunate that another panel of this court decided Romeiro after the instant case was argued to us and that *1020 the Romeiro opinion decided all of the important questions which we are called upon to decide. Thus, we were deprived of the opportunity and excuse for a far-ranging comprehensive opinion on various areas of administrative law. Additionally, there are some areas of murkiness in the Romeiro opinion which would benefit from amplification and clarification. But none of those circumstances justify the type and extent of the dicta involved in the majority opinion. My deep commitment to judicial self-restraint in opinion writing has not changed over the years. See my concurring opinion in General Insurance Company of America v. Equal Employment Opportunity Commission, 491 F.2d 133 (9th Cir.1974), at p. 136.