Cite as: 512 U. S. 267 (1994)
Souter, J., dissenting
The congressional choice of the burden of production meaning was in fact understood from the first and was the subject of some lament by commentators, who criticized the first sentence of § 7(c) (already in its current formulation as "the proponent of a rule or order has the burden of proof") as unhelpful:
"The first sentence is confusing, and is at best unimportant. . . . For example, where a hearing is called to determine whether or not a license application should be granted, the 'proponent' of the 'order' would seem to be the applicant if the order turns out to be an order granting the application, or the agency if the order turns out to be an order denying the application. We conclude that this sentence should be eliminated from the bill." Committee on Administrative Law of New York State Bar Assn. and Association of the Bar of the City of New York, Joint Report on Proposed Federal Administrative Procedure Act 16 (Dec. 26, 1945).
It was certainly not their understanding that this provision established a uniform burden of persuasion.3
II
Until today, this Court's reading of § 7(c) has been consonant with the congressional understanding. In NLRB v.
3 Congressional intent that in § 7(c) burden of proof mean burden of production is further confirmed by the fact that as originally introduced in the House, § 7(c) stated that "[t]he proponent of a rule or order shall have the burden of proceeding except as statutes otherwise provide." H. R. 1203, 79th Cong., 1st Sess., § 7(c), (introduced Jan. 1945), Leg. Hist. 158; see Leg. Hist. 11, 300. Congress prepared extensive side-by-side comparisons of the bill as introduced and as amended into its enacted form, but neither Congress nor any of the commentators gave any indication that the change in language was intended to change the meaning of the sentence. See generally Senate Judiciary Committee, Text of S. 7, Respecting Federal Administrative Procedure and Judicial Review and Revised Text, 79th Cong., 1st Sess. (Comm. Print 1945).
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