concurring:

I concur in the result reached by the majority. I write separately because I believe the majority opinion cuts a path broader than necessary to decide this case.

We held in Spawr II that the Secretary’s decision to place a commodity on the Commodity Control List is not subject to judicial review. United States v. Spawr Optical Research, Inc., 864 F.2d at 1472, 1474. The discovery granted by the district judge in this case, therefore, was not appropriate. The Mandéis contend that the due process principles of United States v. Mendoza-Lopez, 481 U.S. at 828, 107 S.Ct. at 2148-50, and Estep v. United States, 327 U.S. at 114, 66 S.Ct. at 423-24, preclude our following Spawr II. That argument is unavailing. As the majority opinion states, we may reconsider our precedent only when an intervening Supreme Court decision undermines it. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984). Spawr II was decided after Mendoza-Lopez and Es-tep, and can only be overruled by an en banc panel. The majority opinion thus unnecessarily discusses the effect of Mendoza-Lopez and Estep on this case.

Further, because Spawr II holds, as a matter of statutory interpretation, that the Secretary of Commerce’s decision to include particular items on the Commodity Control List is not subject to judicial review, there is no need to reach the government’s political question argument.

It is true that the district judge based his decision to allow the discovery the Mandels requested in part on an analysis of Mendoza-Lopez and Estep. But the district judge did not have the benefit of our holding in Spawr II when he made his ruling. We do and are bound by Spawr II.

I would reverse based on Spawr II alone. Accordingly, I do not join in the majority opinion’s discussion of Mendoza-Lopez, Es-tep, and the political question issue.