The Sunshine Act applies to "any agency, as defined in [the FOIA], headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate." 5 U.S.C. § 552b(a)(1). The Administrative Procedure Act, 5 U.S.C. § 551(1), defines the term "agency" to mean "each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . ." For purposes of the FOIA the statute provides that the "term 'agency' as defined in $ S 551(1) . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(e).
This Circuit has stated that "any general definition of the term agency can be of only limited utility to a court confronted with one myriad organizational arrangements for getting the business of the government done . . . The unavoidable fact is that each new arrangement must be examined anew and in its own context." Public Citizen Health v. Department of Health, Education and Welfare, 215 U.S. App. D.C. 191, 668 F.2d 537, 542 (D.C.Cir. 1981); Washington Research Project v. Department of Health, Education and Welfare, 164 U.S. App. D.C. 169, 504 F.2d 238, 245-246 (D.C.Cir. 1974).
In determining whether the board is an agency this Court must follow the "sole function test," enunciated in Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C.Cir. 1971). See also Washington Research Project v. Department of Health, Education and Welfare, supra; Public Citizen Health v. Department of Health, Education and Welfare, supra; Pacific Legal Foundation v. Council on Environment Quality, 205 U.S. App. D.C. 131, 636 F.2d 1259 (D.C.Cir. 1980); Rushforth v. Council of Economic Advisers, 246 U.S. App. D.C. 59, 762 F.2d 1038 (D.C.Cir. 1985). There is no rigid rule of general applicability for determining whether an entity is an "agency". Public Citizen Health v. Department of Health, Education and Welfare, 215 U.S. App. D.C. 191, 668 F.2d 537, 544 (D.C.Cir. 1981) (Tamm, J. concurring).
Upon review of the Act and the legislative history, the Court concludes that the Board is advisory in nature and is not an agency for the purpose of the Sunshine Act and the FOIA. The Armed Services Committee stated:
The Committee is not persuaded that it is either necessary or wise at this juncture to establish an oversight board with other than advisory powers. The clear consensus among the expert witnesses consulted by the Committee is that an advisory board to the Secretary of Energy is the appropriate mechanism at this time. If an advisory board powers proves to be an insufficient answer, the Committee is prepared to take additional actions.