Cite as: 512 U. S. 267 (1994)
Souter, J., dissenting
Transportation Management and its predecessor in the District of Columbia Circuit, Environmental Defense Fund. See, e. g., Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 988 F. 2d 706, 711 (CA7 1993) ("The Supreme Court has resolved this ambiguity [in § 7(c)]. 'Burden of proof' as that term is used in the APA means the burden of going forward, not the burden of persuasion"); Hazardous Waste Treatment Council v. EPA, 886 F. 2d 355, 366 (CADC 1989) (per curiam) ("initial burden of going forward with a prima facie case"), cert. denied, 498 U. S. 849 (1990); Merritt v. United States, 960 F. 2d 15, 18 (CA2 1992) ("refers only to the burden of going forward with evidence, not the burden of persuasion"); Bosma v. United States Dept. of Agriculture, 754 F. 2d 804, 810 (CA9 1984) ("burden of going forward with evidence"); Alameda Cty. Training and Employment Bd. /Associated Community Action Program v. Donovan, 743 F. 2d 1267, 1269 (CA9 1984) ("merely places the burden of production on [proponent], not the ultimate burden of persuasion"); Dazzio v. FDIC, 970 F. 2d 71, 77 (CA5 1992) ("refers only to the burden of going forward with evidence, not the ultimate burden of persuasion"); Skukan v. Consolidation Coal Co., 993 F. 2d 1228, 1236-1238 (CA6 1993) ("burden of production"). Moreover, the lower courts' views were in accord with the commentators. See, e. g., 3 Davis, Administrative Law Treatise § 16.9, at 257 (burden of proof in § 7(c) means only "burden of going forward" and not burden of persuasion) (citing Environmental Defense Fund, supra); 1 Koch, Administrative Law and Practice § 6.42, at 245 (1994 Supp.) ("The phrase 'burden of proof' as used in the APA § 556(d) means the burden of going forward with evidence. That phrase in the context of the APA does not mean the ultimate burden of persuasion") (footnote omitted); 4 Stein, Mitchell, & Mezines, Administrative Law § 24.02, at 24-21, n. 3 (§ 7(c) "only directs that the [proponent] has the burden of production"); G. Edles & J. Nelson, Federal Regulatory Process § 6.7, pp. 151-152 (2d
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