innovation, ETIP is actually engaged in protecting established, stand-pat companies by refusing to aid small innovative competitors which are potentially more efficient, and he contends that his bank plan was rejected solely because it would tend to produce more vigorous competition. In Raitport's view, ETIP's creation has actually heightened the obstacles for small entrepreneurs. He also argues that private sources of capital, operating in the belief that the federal government was prepared to subsidize small firms engaged in R & D, have discontinued loans to firms in these areas of endeavor.
The threshold question posed by this case is whether the court has any power to review ETIP's rejection of Raitport's proposal. The Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides that decisions by each authority of the government of the United States, which would include ETIP and the Bureau of Standards, are subject to judicial review except where there is a statutory prohibition on review or where agency action is "committed to agency discretion by law."
In this case, there is certainly no statutory provision which can be read to restrict access to judicial review, but the question of whether the action here is committed to "agency discretion by law" is somewhat more complex. While "this is a very narrow exception" to the presumption of reviewability, "it is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820, 28 L. Ed. 2d 136 (1971); cf. National Helium Corp. v. Morton, 326 F. Supp. 151 (D.Kansas 1971). The reviewing function is necessarily premised on the court's having a standard against which to evaluate agency action. A sweeping unstructured grant of administrative authority could support the inference that the legislature wanted no judicial interference with administrative decisionmaking. Here, however, Congress has not legislated at all with respect to ETIP. In the absence of any legislative enactment, the agency action cannot have been "committed to agency discretion by law," and therefore, judicial review should not be foreclosed.
It could be argued, of course, that Congress evinced its intent to insulate agencies such as ETIP from judicial review when it granted the Secretary of Commerce power to create such agencies within the Bureau of Standards, but it strikes me as unwise to foreclose review of ETIP's decisions on the strength of general language of an enabling statute adopted 22 years before ETIP's creation. The repeated statements by the Supreme Court that judicial review is the rule and non-reviewability the exception are not whimsical. See, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967) and the cases cited therein. They flow inexorably from the " cardinal principle" that "when interests affected are of sufficient magnitude any initial exercise of power should be subject to check by an independent authority." Davis, Administrative Law Treatise, § 28.16. Many lower courts, animated by the fear that unchecked power will be abused, have refused to bar access to judicial review in cases where strong arguments could be made that Congress intended to commit the decision to agency discretion by law. See, e.g., Kendler v. Wirtz, 388 F.2d 381 (3d Cir. 1968); Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971); Reece v. United States, 455 F.2d 240 (9th Cir. 1972). Only "a narrow band of matters" remains in which "the inappropriateness or even mischief involved in appraising a claim of error or of abuse of discretion . . . leads to the conclusion there has been withdrawn from the judicial ambit any consideration of . . . the official action." Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122, 131 (1969).
Although I conclude that judicial review is not foreclosed in this case, it serves only a limited function. It is axiomatic that the court will not substitute its judgment for the agency's. This is particularly true in a case such as this where the agency's determination ostensibly rests "on complex and subtle evaluations of the technical merit of plaintiff's project and the professional competence of the plaintiff himself." Kletschka v. Driver, 411 F.2d 436, 443 (2d Cir. 1966). Assessing proposed experiments on their technical merits to decide how well they would further the goal of spurring technological innovation requires an expertise far different from that possessed by courts. On the other hand, plaintiff here has alleged that ETIP acted fraudulently in rejecting his proposal because the agency was motivated by a desire to shield existing companies from competition. He also contends that the agency has departed from its mandate. Assessing the soundness of these allegations is peculiarly a judicial function. An accommodation between the administrative and judicial functions is provided by the APA, 5 U.S.C. § 706(2)(A), which requires the court to "hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." In short, ETIP's decision will be set aside only "if it [was] made without a rational explanation, inexplicably departed from established policies . . . or . . . [was based] on other 'considerations that Congress could not have intended to make relevant.'" Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966).
Accepting the premise that the court has the power to review, but limiting it as noted above, Raitport's motion for a preliminary injunction can be disposed of rapidly. As the Court of Appeals for the Third Circuit stated in Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972):
"The criteria for obtaining a preliminary injunction and the standard of review of the trial court's decision are well settled. A party seeking a preliminary injunction must demonstrate, inter alia, a reasonable probability of eventual success on the merits and irreparable injury pendente lite."