Opinion for the Court filed by Circuit Judge WILKEY.
Separate opinion for the Court filed by Circuit Judge WALD.
Concurring opinion filed by Senior Circuit Judge BAZELON.
Judge Wilkey files an opinion in which Judge Wald and Senior Judge Bazelon concur, except with respect to Part II, A (entitled “Lack of Improper Motivation”). Judge Wald files a separate opinion in which Senior Judge Bazelon concurs. Judge Wald’s opinion, and Judge Wilkey’s opinion, except for Part II, A, together constitute the opinion of the court. The district court’s order is reversed and the case remanded for further proceedings consistent with the opinion of the court.
So Ordered.
The Attorney General of the United States, plaintiff/appellant, initiated this suit under the Foreign Agents Registration *409Act1 (“FARA” or “the Act”) to compel defendant/appellee, publisher of the newspaper The Irish People, to register under the Act. The district court ruled that certain documents requested by the defense from plaintiff were state secrets, as the Attorney General claimed, but that defendant had established a need for discovery of the documents in order to pursue the selective prosecution defense it had raised. The court therefore concluded that since the Attorney General chose not to surrender the material to the defendant the action had to be dismissed.
We reverse because we find that neither element necessary for a selective prosecution defense was sufficiently demonstrated by the district court’s opinion, 502 F.Supp. 63, for the defendant to be entitled to discovery on the issue. We also caution that on remand, even if a colorable selective prosecution claim is ultimately demonstrated to exist, outright dismissal may be too extreme a measure to invoke for plaintiff’s inability to comply with defendant’s discovery request.
I.Background
On 16 August 1976 the Attorney General filed this complaint seeking a mandatory injunction requiring defendant, a New York corporation and publisher of the weekly newspaper The Irish People, to register with his office as required by FARA. The Act requires that, with certain exceptions, anyone acting as an agent of a foreign principal register with and make certain disclosures to the Attorney General. The main allegations of the suit are that the defendant is controlled and partially financed by the Irish Northern Aid Committee (INAC), an admitted agent of a foreign principal, and that the defendant in turn is a means to garner support for INAC and its principal, the Irish Republican Army (IRA).2 The defendant has denied these allegations and has raised a series of affirmative defenses including selective prosecution. Specifically, the defendant claims that it was improperly singled out for registration under FARA, not as a matter of legitimate discretion, but rather “because of hostility to the editorial policy of defendant, and the [Irish Republican] cause it espouses,” 3 and as a result of pressure from the British and perhaps the Irish governments.
Beginning in January 1978 The Irish People engaged in extensive efforts to secure production and discovery of information and documents it claimed to be relevant to its factual exculpation and legal defenses. Eventually, after various interim orders and extensive briefing by the parties, the parties joined issue over the documents which the Attorney General sought to shield from discovery as state secrets. In the meantime the Attorney General had furnished a large number of other documents.
By a memorandum opinion of 13 July 19794 the district court held that the state secrets privilege did apply, and denied defendant access to the privileged material.
On the basis of this denial, the defendant next moved for the dismissal of the Attorney General’s cause of action, asserting that without access to the privileged material the defendant could not adequately pursue its defense of selective prosecution and that the Attorney General, by successfully invoking the privilege, was now precluded from seeking a mandatory injunction requiring defendant to comply with FARA. Defendant argued that “fair adjudication ... has been rendered impossible by the *410government’s assertion of a claim of state secrets privilege to withhold relevant evidence necessary for the defense.”5
After considering the arguments of the parties, the district court found that the defendant had established a need for the privileged material in order to pursue the selective prosecution defense and that the plaintiff had to surrender the material to the defendant or the action would be dismissed.6 The plaintiff moved for reconsideration, arguing that neither the circumstances nor the applicable law warranted such a dismissal. The district court denied the motion for reconsideration and granted defendant’s motion to dismiss.7
We reverse. The opinion by the district court adequately demonstrated neither of the two elements necessary for a selective prosecution — improper motivation and selection by the Government.8 Moreover, in any event outright dismissal may have been too extreme a measure for the district court to invoke. We discuss these two findings in turn.9
II. The Selective Prosecution Claim
As we held in United States v. Diggs, 10 a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place.11 In the case at *411hand, however, the district court’s opinion does not indicate that defendant has done either.
A. Lack of Improper Motivation
1. Overview
The district court found, first, that defendant had established “entitlement to discovery relating to the defense of selective prosecution” and, second, that “the particular documents that the defendant seeks to discover are sufficiently related to that defense to justify compelling the government to release them.”12
All three judges on this panel are agreed that the district court must reconsider both findings. We are agreed that the evidence cited by the district court did not entitle defendant to discovery since it did not demonstrate a colorable showing of improper motivation, and that — even if such a showing were made — the documents in question may not be sufficiently relevant to the defense to justify their discovery.13
The district court listed the reasons for its conclusion that the defendant had established entitlement to discovery on the selective prosecution issue as follows:
[T]he court is satisfied that regardless of the test applied — reasonable doubt, color-able basis, beyond frivolous, evidence tending to show essential elements — the defendant has carried his burden. Particularly significant is the January 30, 1980 deposition of Mr. Dennis Dickson, a former F.B.I. Legal Attache stationed with the American Embassy in London. Dickson indicated that the United States Department was at one time “getting various requests from the Government of Ireland as to what the U.S. was doing to prosecute individuals that were shipping guns, ammunition, that was in violation of the Registration Act.... ” Dickson Deposition at 50. He confirmed that at a meeting convened by the State Department, id., apparently on September 26, 1973, id. at 47, there was discussion of means of alleviating political as well as financial and military support furnished by [sic] Irish militants by U.S. citizens, id. at 52-53. In view of these and other statements in the Dennis Deposition, it would be unreasonable to deny the requested discovery.14
The district court then turned to whether the documents defendant sought, which the court had earlier ruled to be state secrets, would bear on whether the Attorney General was improperly motivated. The court quoted United States v. Reynolds15 in concluding that dismissal would be proper if the Government had “invokefd] its governmental privileges to deprive the accused of anything which might be material to his defense.”16
Having examined each of the documents in camera, Judge Flannery then concluded:
There is a manifest likelihood that documents reflecting communications be*412tween agencies of the Irish and British governments and agencies of the United States would shed considerable light on the existence vel non of at least one unlawful basis for the present prosecution. Indeed, as this court stated earlier in this case, “The defendant in the case sub judice has argued persuasively that proof of the existence of communications between agencies of the British or Irish governments and American agencies is crucial to its defense of selective prosecution....”17
The district court apparently concluded that something which “might be material” to defendant’s defense had been shown if the documents demonstrated that “the British or Irish governments had communications or discussions with American agencies, or officers, which might have resulted in, stimulated, or led to the intensification of the investigation by American agencies”18 of The Irish People.
However, it is clear that Congress intended to allow the Attorney General to be motivated in part by foreign policy, international political, and national security considerations, as is discussed at length below.19 A showing that the Attorney General acted in such a way is not a showing of improper motive at all. Thus, the district court erred if it ruled that defendant was entitled to discovery because the Attorney General may have sought defendant’s registration at the request of our allies.20 It similarly erred if it held that the documents in question here were relevant to the defense since *413 they might demonstrate that our allies’ wishes influenced the Attorney General.21
There is some confusion in the case law— and the district court’s opinion- — over what constitutes “improper motivation.” Two kinds of motives are apparently impermissible: those which have no rational basis under the statutory scheme being enforced, and those which are in and of themselves violative of the Constitution.22
The analysis of the meaning of FARA in the next section specifically addresses the first objection. It demonstrates that consideration of an ally’s wishes and the defendant’s alleged foreign ties and unfriendly activities is rational under the statutory scheme of the Act.
The centrality of these considerations to FARA also dictates the rejection of any allegation that the registration sought here is improperly motivated as a matter of constitutional law. In the first place, given the conclusion that FARA’s origin, language, and application show it to be aimed at agents who are “propagandists” for principals like the IRA, defendant’s First Amendment and equal protection constitutional challenges to FARA as applied in this case cannot be separated from a challenge to the general constitutionality of the Act. Yet it is well settled that FARA is constitutional.23 Moreover, the cases upholding its constitutionality generally involved agents *414with specific constitutional claims at least as colorable as defendant’s here.24 Finally, there is certainly no reason to disturb these precedents on the basis of the facts before us today. All that is sought here is registration and disclosure. No limit is to be placed on what defendant can say, or whom he can see.25
*415Because the Attorney General’s mandate under FARA is critical to the decision today, the statutory language, legislative history, and case law of the Act must be reviewed in some detail.
2. The meaning of FARA
Reviewing the language and history of FARA, and the case law under it, makes clear that the Attorney General may, consistent with the Act’s scheme and Congress’ intent, keep foreign policy, international political, and national security considerations in mind in his enforcement of the statute.
a. Language of the statute
Before discussing the actual language of the statute, it merits mentioning that the Act is found in Title 22 of the U.S. Code, “Foreign Relations and Intercourse,” at Chapter 11, “Foreign Agents and Propaganda.” This is an immediate indication that we are dealing here with a statute whose underlying nature is rooted in international political considerations and the conduct of foreign policy. This also reflects, as should be kept in mind throughout our review of the statute and its history, that a deliberate major concern of Congress was to require the disclosure of the foreign principal behind propaganda activities.
These considerations are reflected most strongly in the Act’s provisions themselves. In § 611, the definitional section, one criterion of an “agent of a foreign principal” is that he “engage[ ] within the United States in political activities for or in the interests of such foreign principal.”26 “Public-relations counsel” are limited to persons representing a principal in matters “pertaining to political or public interests, policies, or relations of such principal.”27 Section 611(e) “government of a foreign country,” § 611(f) “foreign political party,” § 611(j) “political propaganda,” § 611(o) “political activities,” and § 611(p) “political consultant” are all naturally defined in political terms also. The limitation of the Act to political behavior indicates its preeminent concern with international political and domestic security matters.
That the Act was geared toward use in the foreign policy and national security areas is also reflected by the limitation of the term “political propaganda” to matters involving the political interests of foreign governments and parties, United States “foreign policies,” United States “dissensions,” or “any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic,”28 where “American republic” is limited to those “states which were signatory to the Final Act of the Second Meeting of the Ministers of Foreign Affairs of the American Republics at Habana, [sic] Cuba, July 30, 1940.”29 It should also be obvious — and reviewing of the legislative history amply confirms this — that to the extent FARA focuses on subversion by foreign powers, foreign policy concerns become inevitable. The Attorney General may channel his limited resources against agents of those powers inimical to the United States, who are more likely to subvert our allies and interests.
Section 612(f) gives the criteria for exemption from the general filing require-' ments of § 612(a)30: “The Attorney Gener*416al may, by regulation, provide for the exemption — ... where by reason of the nature of the functions or activities of such person the Attorney General, having due regard for the national security and the public interest, determines that such registration, or the furnishing of such information, as the case may be, is not necessary to carry out the purposes of this subchapter.” 31
Broader exemptions are set out in § 613,32 which declares that the requirements of § 612(a) “shall not apply to the following agents of foreign principals,” and then lists seven categories of persons exempted. These categories are: “Diplomatic or consular officers”; “Official of foreign government”; “Staff members of diplomatic or consular officers”; “Private and nonpolitical activities; solicitation of funds”; “Religious, scholastic, or scientific pursuits”; “Defense of foreign government vital to United States defense”; and “Person qualified to practice law.” With the exception of the last category, it is clear that all the exemptions are rooted in either foreign policy concerns or can be explained by the fact that Congress was interested in monitoring public and political activities, rather than private, nonpolitical, religious, scholastic, scientific, or similar activities which have only an attenuated relationship to foreign policy and national security.33
Section 614 is devoted to the “Filing and labelling of political propaganda,” and § 621 requires that “[t]he Attorney General shall, from time to time, make a report to the Congress concerning the administration of this subchapter [i.e., FARA], including the nature, sources, and content of political propaganda disseminated or distributed.”34
Finally, and perhaps most significant of all, § 616 requires the Attorney General
promptly upon receipt [to] transmit one copy of every registration statement filed hereunder and one copy of every amendment or supplement thereto, and one copy of every item of political propaganda filed hereunder, to the Secretary of State for such comment and use as the Secretary of State may determine to be appropriate from the point of view'of the foreign relations of the United States. 35
Section 616 also authorizes the Attorney General
to furnish to departments and agencies in the executive branch and committees of the Congress such information obtained by him in the administration of this sub-chapter, including the names of registrants under this subchapter, copies of registration statements, or parts thereof, copies of political propaganda, or other documents or information filed under this subchapter, as may be appropriate in the light of the purposes of this subchapter. 36
b. Legislative history
That FARA was to serve a foreign policy-oriented role was apparent from the outset. It is worth noting that the registration functions originally belonged to the Secretary of State and were transferred to the Attorney General only in 1942.37 The House Report38 accompanying the original bill was entitled “Investigation of Nazi and Other Propaganda.” The bill set out the results of the investigation of Naziism, Fascism, and Communism and other foreign-controlled political movements. The Report evinced a particular concern with violence *417and of course with foreign control.39 Concern was also expressed with the fact that the movements sought to influence “our governmental policies.”40 The Report concluded:
2. That Congress should enact a statute conferring upon the Secretary of Labor authority to shorten or terminate the stay in this country of any visitor admitted here under temporary visa, whenever in the judgment of the Secretary such visitor shall engage in the promotion or dissemination of propaganda or engage in political activity in the United States.
3. We recommend that the Department of State, in collaboration with the Department of Labor, negotiate treaties and agreements with foreign nations by which such nations shall agree to receive back any persons entering this country from such foreign nation at any time such immigrant shall become subject to deportation under our laws.
6. That Congress should make it an unlawful act for any person to advocate changes in a manner that incites to the overthrow or destruction by force and violence of the Government of the United States, or of the form of government guaranteed to the several States by article IV, section 4, of the Constitution of the United States41
The focus on radical violence and foreign affairs was to be a recurrent theme in the legislative history of not only the initial passage of FARA but also of its subsequent amendments. These themes significantly illuminate today’s case.
The House Report of the 75th Congress42 in 1937 declared that the basic purpose of the Act was to focus a “spotlight of pitiless publicity” on those organizations financed by “foreign governments or foreign political groups” to spread propaganda and thereby “influence the external and internal policies of this country.”43 This Report emphasized that the purpose of the Act was disclosure rather than prohibition. Moreover, the Report continued, “the provisions of this measure [will] have no reference to nor include any person performing only private, non-political, financial, mercantile, commercial, or other activity in furtherance of bona-fide trade or commerce of a foreign principal.”44 The Senate Report45 of the same Congress incorporated the House Report.46
The 77th Congress amended the 1938 version of the Act. The Senate Report outlining the changes made in the Act was dated nine days after the attack on Pearl Harbor.47 It stated that the Act was “prefaced by a section stating the policy and purpose of the statute and emphasizing its function as a means of enabling the people of the United States to appraise the propaganda and other activities of foreign agents in the light of their association and background.” 48 The section read:
POLICY AND PURPOSE
It is hereby declared to be the policy and purpose of the Act to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their *418statements and actions in the light of their associations and activities.49
The Report also incorporated a letter from Attorney General Biddle endorsing the Act and emphasizing the “nonpolitical nature” of the exemptions allowed.50 Again, the international political and foreign policy considerations were obvious in both the amendments to the Act and their genesis.
The House Report51 of that session spoke of the “transfer [of administration] of the Act from the Department of State to the Department of Justice.”52 In this vein, the Report continued: “The [amended] section also provides coordination with the State Department by providing that it shall receive a copy of each registration statement for examination from the point of view of the foreign relations of the United States.”53
One interesting highlight of the amendments proposed in 1941 and 1942 further illuminates the foreign policy and international political considerations inherent in the Act. Certain sections of the bill were rejected54 by President Roosevelt as putting too great a strain on our relations with wartime allies whose agents might have to register under the terms of the original amendments.55 Subsequently, therefore, an exemption was added to the Act for agents “whose foreign principal is a government of a foreign country the defense of which the President deems vital to the defense of the United States . ...”56 The amendment was made pursuant to a suggestion by Attorney General Biddle, the letter accompanying which is incorporated in both the subsequent House Report and Senate Report,57 and this provision remains in the current version of the law.58 When a foreign principal is deemed to be a government essential to the defense of the United States,
such government of a foreign country [must] furnish[ ] to the Secretary of State for transmittal to, and retention for the duration.of [the Act] by, the Attorney General such information as to the identity and activities of such person or employee at such times as the Attorney General may require. Upon notice to the Government of which such person is an agent or to such person or employee, the Attorney General, having due regard for the public interest and national defense, may, with the approval of the Secretary *419 of State, and shall, at the request of the Secretary of State, terminate in whole or in part the exemption herein of any such person or employee ....59
Thus, Congress amended the Act specifically to prevent its hampering of relations with friendly countries. If agents of foreign principals essential to our defense may be exempted from FARA altogether for the sake of our foreign policy, then it is certainly within the intent of the Act that in his enforcement the Attorney General may consider the identity of an unfriendly principal and the wishes of our allies.
In 1950 the definitional section of FARA was amended to include “a new category of persons within the definition of the term ‘agent of a foreign principal.’ The new category consisted] of persons who have knowledge of or have received instruction or assignment in the espionage, counter espionage, or sabotage service of a foreign government or political party ....”60 This part of FARA is now incorporated in sections 851 and 852 of Title 50, “War and National Defense.” The 1950 amendments were part of the Internal Security Act of 1950, the primary purpose of which was “to combat un-American activities by requiring the registration of Communist organizations ....”61 Thus Congress modelled FARA precisely so that it could be used against those organizations inimical to American interests.
Further amendments were added to FARA in 1966. Again, Congress’ concern with political, and not apolitical, activity underscored the international political and domestic security focus of the Act.62 The Report also stated: “The Secretary of State will be provided copies of the registration statements and political propaganda filed with the Department of Justice under the requirements of the [A]ef,” “[contingent fee contracts between agents and foreign principals based upon success in political activities to be undertaken by the agent are banned,” and “[cjampaign contributions for or in behalf of a foreign principal are prohibited in connection with any election to public office or in connection with any primary election or convention to select candidates for office.”63
That Congress intended and desired that the legislation be sensitive to the requirements of national security was reflected by its statement that some changes in the statutory language had to be made since many of the earlier provisions had been dictated by the “prewar circumstances surrounding enactment of the law.”64 The section-by-section analysis65 of the proposed amendments stated that they
would take into account the change of circumstances of the present day by requiring a showing not only of foreign connections but also of certain activities performed by the agent for foreign interests which are either political in nature or which are carried on in particularly sensitive areas in which the line between political and non-political action is difficult to define.66
The House Report also stated that the phrase “political or public interests, policies, or relations,” referred to “matters which on the domestic governmental level would be called a policy matter, in the international *420context may be called questions concerning a country’s foreign relations, and in the context of party politics may be termed matters involving the national interest.”67
The House Report emphasized that one of the new subsections
would require the Attorney General to transmit to the Secretary of State not only the initial registration statement, as under existing law, but, in addition, supplemental and amendatory statements in propaganda filed with him by agents. The Secretary of State would be authorized to comment on the statements and to make such use of them and the related material as seems appropriate from the standpoint of the Nation’s foreign relations. This, for example, would enable the Secretary of State to make American embassies and other missions more fully informed of the activities of agents of foreign principals.68
The Report pointed out that a new subsection would authorize the Attorney General to circulate copies of acquired material
to other branches, agencies and officials of the Government, as appropriate. It would, for example, be appropriate in light of the purposes of the act for such statements of propaganda to be forwarded to specific agencies named in the statements as the object of the agent’s political activities or to congressional committees concerned with legislation which, according to the material filed by the agent, is the subject of his interest.69
It should be mentioned that departmental reports on the 1966 amendments were received from agencies involved with American foreign relations, while an agency concerned with foreign relations only to the extent that they have impact on non-political activities made the determination that comment would be inappropriate.70
The Senate Report71 for the 1966 amendments made some important additional points. In its discussion of the bill’s main purpose, it stated that the amendments were “intended to protect the interests of the United States” by requiring disclosure by agents “acting for or in the interests of foreign principals where their activities are political in nature or border on the political.” These disclosures would “permit the Government and the people of the United States to be informed as to the identities and activities of such persons and so be better able to appraise them and the purpose for which they act.”72
The amendments were also “aimed at better focusing the act on those individuals attempting to influence Government policies through political activities.”73 In particular, the amendments were tailored to provide better disclosure when agents were “contacting Members or committees of the Congress or Government officials on policy matters in behalf of their foreign principal ....”74 The Report noted the “persistent efforts by numerous agents of foreign principals to influence the conduct of U. S. foreign and domestic policies using techniques outside the normal diplomatic channels.” 75 The Report found it “noteworthy that the increased tempo of nondiplomatic activity has picked up in almost direct proportion to our Government’s growing politi*421cal, military, and economic commitments around the world.”76
Given the established linkage between the defendant, INAC, and the IRA77 clearly the statutory objectives are consonant with the registration of the defendant.
c. Case law
Soon after FARA was originally enacted the Supreme Court had occasion to elucidate the purpose of the Act in Viereck v. United States78
The Act of 1938 requiring registration of agents for foreign principals was a new type of legislation adopted in the critical period before the outbreak of the war. The general purpose of the legislation wg.s to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment. ... These means [used to accomplish the ends of the statute] included the requirement of registration of agents for foreign principals ... and the requirement that the registrant give certain information concerning his activities as such agent.79
Only Justices Black and Douglas dissented from the Supreme Court’s opinion in Viereck, and they did so on grounds unrelated to the majority’s statement of the general purpose of the statute. They also stated the purpose of FARA:
The general intent of the Act was to prevent secrecy as to any kind of political propaganda activity by foreign agents. Both the House and Senate Committees reporting the Bill under consideration declared it to be their purpose to turn “the spotlight of pitiless publicity” upon the propaganda activities of those who were hired by foreign principals. Appreciating that “propaganda efforts of such a nature are usually conducted in secrecy,” they wanted to make full information concerning it “available to the American public” and sought by “the passage of this bill” to “force propaganda agents representing foreign agencies to come out ‘in the open’ in their activities, or to subject themselves to the penalties provided in said bill.”1 They declared that the purpose of the Bill was to require all such hired agents “to register with the State Department and to supply information about their political activities, their employers, and the terms of their contracts.” 2
What emerged from extended Congressional investigations, hearings and deliberations was this Act, intended to provide an appropriate method to obtain information essential for the proper evaluation of political propaganda emanating from hired agents of foreign countries. As the House and Senate Committees considering the Bill said, it “does not in any way impair the right of freedom of speech, or of a free- press, or other constitutional rights.” Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose.
*422 United States v. Peace Information Center81 quoted extensively from the original House Report in finding that “[t]he intent and purpose of the Congress in enacting [FARA]” was to “ ‘publicize’ ” those “ ‘propagandists’ ” who seek to “ ‘influence] American political opinion on a political question.’ ”82 It quoted Viereck in finding that the “ ‘general purpose’ ” of this “ ‘new type of legislation adopted in the critical period before the outbreak of the war’ ” was to “ ‘identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment.’ ”83 The main focus of Peace Information Center was on the constitutionality vel non of the Act, and its finding that FARA was constitutional was based largely on Congress’ broad authority to legislate on matters concerning foreign relations and national defense.
That the Attorney General may properly factor in national security, international political, and foreign policy considerations was reflected also in an opinion by Judge Bauman in 1972,84 in which he ordered the alleged principal in our case, INAC, to produce its books and records for officials charged with the enforcement of FARA:
The purpose of the Act is to protect the interests of the United States by requiring complete public disclosure by persons acting for or in the interests of foreign principals where their activities are political in nature. These disclosures offer the Government and our people the opportunity to be informed and therefore enable them to understand the purposes for which they act.
The Act is founded upon the indisputable power of the Government to conduct its foreign relations and to provide for the national defense. ...
... Its purpose is to meet the Government’s need for records necessary to enforce its national defense and foreign policies.85
He went on to point out that INAC
engages in activities designed to promote the cause of one faction in the current dispute in Northern Ireland. Its fund raising and propaganda activities may well be designed to influence American policy or, put most charitably, may result in serious complications for the Government in its conduct of foreign affairs.86
Most recently Judge Haight began his opinion — wherein he found INAC to be an agent of the Irish Republican Army and ordered it to comply with FARA — with the recognition that “[t]he general purpose of the Act is to protect the security and foreign relations of this country by requiring *423agents of foreign principals to identify themselves and disclose their activities.”87
Finally, the pattern of criminal prosecutions under FARA has, from the beginning, reflected the foreign policy and national security concerns of our Government, and Congress has never indicated any disapproval. The first three prosecutions brought, from 1939-40, involved the Soviet Union. Then, from 1940 through the end of World War II, of the sixteen prosecutions brought eleven involved Germany. The remaining five were divided, significantly, among Japan, Italy, Finland, Rumania, and Spain. In 1963 the Department of Justice reported that since World War II there have been twelve additional prosecutions. The principals alleged were, again, as we would expect: three prosecutions involved the Soviet Union, five Cuba, one Rumania, two the Dominican Republic, and one the Committee of World Congress of the Defenders of Peace.88 In the Justice Department’s own pamphlet The Foreign Agents Registration Act of 1988 as Amended, it is stated that the policy and purpose of the Act is
to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in light of their associations and activities.89
3. Conclusion
A review of the language, history, and case law of the Foreign Agents Registration Act demonstrates that it was inspired by national security, international political, and foreign policy considerations. The design and use of FARA has reflected the evolving concerns of American foreign policymakers. It was prompted by and first used extensively against Fascism and Naziism in the 1930s and then during World War II itself, was then aimed more toward the Soviet Union and its allies in the postwar period, and — apparently—today is being employed for disclosing links with international terrorists.90 The Attorney General has only limited time and money to spend on enforcement, and may, consistent with the Constitution and the statute, channel his efforts in a way consistent with the underlying purpose of the Act. There is nothing in the district court’s opinion to demonstrate that he acted in a way inconsistent with FARA’s rationale — to the contrary. The Attorney General was entitled in the case before us to take into account the wishes of our allies and the uncongeniality of the prospective registrant’s ultimate principal.91 Unless the district court finds that the documents at issue demonstrate colorably he did more than this, there has been no colorable showing of improper motivation.
*424B. Lack of Selection
Even before the district court reached the question of improper motive, it should have considered whether there had been any selection. Defendant must make a colorable showing that he has been especially singled out, that there exist persons similarly situated who have not been prosecuted. Without such a showing, it is irrelevant that the British or Irish may also have wanted the suit brought.
This court recently had occasion to consider the selective prosecution defense in United States v. Diggs.92 It is clear from Diggs that a demonstration of selection is indispensable for the defense and that the burden of so demonstrating lies squarely on the defendant. Diggs established a two-step process, under which the determination of selection should come first. And whether a judge determines the discrimination or selection first or last, at some point he must make this determination. In the case at hand, however, not only was there no showing that the selection was improperly motivated, there was no showing that there had been any selection at all.
The two elements of discriminatory selection and improper motive might be compared to the two elements of conspiracy, i.e., an agreement making up the conspiracy plus an overt act carrying the conspiracy into effect. Chronologically, in the case of discriminatory prosecution, the two steps are reversed in time, but we must have both. The improper motive compares to the agreement for an illegal object; the actual discriminatory selection compares to the overt act. Both elements are necessary for a conspiracy charge and both elements must be clearly and separately shown for a selective prosecution defense.
As stated in United States v. Scott:
In order to prevail in this allegation [of selective prosecution] appellant must bear the burden of proving at least a prima facie case. This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted.93
The district court stated that “[t]he present case does not lend itself easily to such analysis [as in Scott], however, because of the manifest difficulty of finding others ‘similarly situated’ in the sense of voicing strong and regular opposition to the foreign policy (regarding Ireland) of a major United States ally (Great Britain).”94 Concluding that the Scott test is inappropriate, however, assumes the conclusion. If there are few “similarly situated” to The Irish People, it is precisely because of its uniqueness that we would find it difficult to fault the Attorney General’s decision to require it to register. If, as the district court found, there was no one to whom defendant could be compared in order to resolve the question of selection, then it follows that defendant has failed to make out one of the elements of its case. Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances.95 Where defendant cannot show anyone in a similar situation who was not prosecuted, it has been held that he has not “met even the threshold point of the Yick Wo doctrine — ‘official discrimination ... between persons in similar circumstances, material to their rights ....’”96 Thus, if we accept the district court’s conclusion that few are “similarly situated” with defendant — a tenuous assertion, in light of our discussion below97 of past registrations — we would not find for defendant.
*425This was, indeed, precisely the conclusion reached by Judge Haight in Attorney General v. INAC, 98 a “comprehensive opinion”99 recently affirmed by the Second Circuit. There the court ordered INAC — the alleged principal in our case100 — to register under FARA as an agent of the IRA. Judge Haight used the same two-pronged test we do today, relying on the Second Circuit case of United States v. Berrios. 101 He found, as we do, that neither part of the test had been met.102 Specifically with regard to the lack of selection, he stated, “Even assuming that [INAC] has satisfied [the “improper motive”] prong of the Berrios test, it has pointed to no instances in which others allegedly in violation of the Act have not been prosecuted. The absence of such proof, by itself, defeats the defense.’’103
Moreover, in choosing to rely on what it believed to be an alternative test found in some other eases,104 the district court in our case incorrectly concluded that these alternative tests obviated the need for the threshold examination of selection. To the contrary, a careful reading of these cases shows no deviation from the established two-step test of establishing selection and then the motive for selection. The passages cited by the district court from these cases deal not with the essential elements of the defense but with the degree to which these elements must be established before defendant can prevail. Indeed, in each ease the need for the establishment of the fact of selection is recognized.105 At any rate, we reaffirm that Diggs is the controlling case for this Circuit.
Concluding that defendant failed to make out the first part of the two-element test for selective prosecution, and that both elements are required for the defense, does not quite end the inquiry, however. There remains the issue of whether this being so, there is no necessity of showing both where all that is being sought is discovery. Thus, the district court’s opinion may be read as requiring less than the two-part test for deciding whether discovery is appropriate, even if the two-part test is still necessary for the selective prosecution claim itself.
Again following Diggs, 106 we can see no reason for throwing out half the standard on the discovery issue. If either part of the test is failed, the defense fails; thus it makes sense to require a colorable claim of both before subjecting the Government to discovery. Since it is well established that, even in the context of a criminal prosecution, the Government enjoys a presumption of having “undertaken [the action] in good faith and in nondiscriminatory fashion,”107 *426it also makes sense that the burden be generally on the defendant to show the necessary elements at each procedural stage.
We think even the cases relied on by the district court as support to the contrary bear this out.108 In United States v. Berrios the court stated that, before it allowed the requested discovery, it would “require some evidence tending to show the existence of the essential elements of the [selective prosecution] defense” — not an essential element — and that “the documents in the government’s possession would indeed be probative of these elements.” 109 Berrios thus pointed out that defendant there had “not pointed to a single unprosecuted violation ... on the part of others, even though proof of this essential element would not necessarily be in the government’s exclusive control.”110 We do not believe the other cases cited by the district court are supportive either. Berrigan required a “colorable basis”111 for the defense, and it seems to us that if an essential half of the defense is not colorable then there is no such “colorable basis.” This was, incidentally, exactly the approach taken in Diggs. 112 The same is true of the Oaks requirement that the claim be taken “past the frivolous stage”;113 Oaks, moreover, required “an initial factual showing” of “impermissible discrimination”114 — which, in that case’s context, sounds like an amalgam of both elements. In Peskin, it is our reading of the case that the hearing for defendant’s selective prosecution claim was denied precisely on the test of no improper motive alone. The same is true of Berrigan. In the last case relied upon by the district court, Falk, while it was held that defendant’s selective prosecution claim was not without merit, it was done upon a finding that he had shown both elements.115 Finally, we again affirm that Diggs controls for this Circuit.
Defendant argues that it was selected “because of [the government’s] hostility to the editorial policy of defendant, and the [Irish Republican] cause it espouses.... ”116 But if the question of selection is approached from the standpoint of the political issues involved in Northern Ireland and the defendant’s support for one faction in the strife there, one finds that the Attorney General has sought and obtained the registration under FARA of persons representing a variety of political interests ranging from pro-loyalist to pro-Irish Republican.117 Defendant thus has a difficult though not impossible task to show selection.118
Note that all eligible foreign agents are required to register under the Act, whether the Attorney General brings suit against them or not. Thus, it is not as if the Attorney General’s discretion determined that defendant fell within the Act: all that was exercised here was the executive’s pure enforcement power.
*427If the Government has a valid ground to bring this action, then presumptively it has every right and duty to do so. It would be anomalous to allow The Irish People to escape the duty to register as a foreign agent solely because registration would create joy in Whitehall or Dublin. The interests of the United States Government are paramount, and if there was actually no selection, then all the correspondence from Britain and Ireland creating an aura of “improper” extraneous motive is beside the point: the first essential element of discriminatory selection has not been established.
III. The Improper Dismissal Issue
On remand the district court should reanalyze the documents at issue to determine whether, under the principles we have outlined, there remains a colorable showing of selective prosecution.119 It should look to see whether there was selection and, if so, whether it was improperly motivated. We should also point out that even if the district court makes this finding, dismissal may be an inappropriate remedy for the Government’s inability to produce the documents.
In reaching its conclusion that dismissal was proper the district court stated, “It would be inconsistent with the fundamental fairness required by due process to allow the Government to assert the defendant’s guilt and then deny it the materials that might serve to exculpate it.”120 To support this proposition the court cited United States v. Reynolds121 and United States v. Andolschek.122 In the latter case, Judge Learned Hand stated,
While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution- necessarily ends any confidential character the documents may possess. . .. The government must choose; either it must leave the transactions and the obscurity from which a trial will draw them, or it must expose them fully.123
The district court quoted this passage and then concluded that a dismissal of the Government’s action was proper in this ease.
We disagree. Neither Reynolds nor Andolschek supports dismissal in this case. Reynolds involved a suit by the widows of three deceased civilian observers following the death of their husbands in the crash of a bomber. Plaintiffs sought production of the Air Force’s official accident investigation report and the statements of the three surviving crew members. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant to Air Force regulations. Nonetheless, the district court ordered the Government to produce the documents in order that it might determine whether they contained privileged matter. The holding was affirmed on appeal, but the Supreme Court reversed. The Court stated:
Regardless of how it is articulated, some .. . formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court *428may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.124
The Court took judicial notice of the national security considerations in the case, and pointed out that a balance had to be struck between the competing claims of the two parties, taking into account the necessity of the evidence for plaintiff, and the national security considerations of defendants. The Supreme Court then stated:
There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. [Plaintiffs] were given a reasonable opportunity to do just that when [the Government] formally offered to make the surviving crew members available for examination. We think that offer should have been accepted.125
As for Andolschek, which involved a criminal prosecution, the Supreme Court in Reynolds distinguished “those cases in the criminal field”126 from the case that was before them. The Court cited Andolschek without approval, and Judge Hand himself carefully limited Andolschek to “cases involving] the prosecution of a crime consisting of the very matters recorded in the suppressed document, or of matters nearly enough akin to make relevant the matters recorded.”127 That is not the case here.
Thus we hardly think that either Reynolds or Andolschek supports dismissal. On the contrary, Andolschek implicitly and Reynolds explicitly stand for the proposition that courts must balance a number of factors in determining how to proceed when one side or the other has claimed that certain evidence is privileged. Thus, even if defendant would normally be entitled to discovery, it does not follow that, if there can be no discovery in the particular case, dismissal is the only choice available to the court.
The. parties dispute whether dismissal should be governed by Rule 37 of the Federal Rules of Civil Procedure. On the one hand, plaintiff argues that the Rule explicitly governs the permissible sanctions, including dismissal, for “Failure to Make or Cooperate in Discovery.”128 The district *429court’s 8 August 1980 order requiring the Attorney General to choose between producing the sought documents or suffering dismissal of his complaint does seem very like a production order.129 On the other hand, defendant argues that the Rules authorize discovery only of information “not privileged,”130 and the documents here have been held, quite correctly, to be so privileged. Still, it seems unduly formalistic to east Rule 37 aside and create a procedural vacuum in this situation, which seems at the very least closely analogous to that covered by the Rule.
Happily, this issue is of an intricacy disproportionate to its interest. What is critical is the fact that, whether Rule 37 applies or not, the district court erred in deciding that dismissal is necessarily the proper remedy when information which “might” be relevant to a selective prosecution claim is unavailable for discovery. Whether or not defendant’s due process claim is considered under Rule 37 or independently of it,131 it involves more than simply whether the materials sought “might serve to exculpate” defendant. Certainly the possibility of exculpation — if the defense of selective prosecution can be said to “exculpate” defendant — must be considered by the court, but other factors must be weighed as well: the likelihood that they will serve to exculpate defendant, their necessity for the defense,132 what defendant stands to lose in the case, the government’s interest in maintaining the material’s secrecy and in successfully bringing the action, the availability of alternatives to a dismissal-or-disclosure order, and, generally, the parties’ respective behavior, cooperation or lack of cooperation, and good or bad faith during the course of the lawsuit.
Even if Rule 37 does not apply, it makes' sense to conclude that, in the absence of a specific rule, the court should fashion a remedy which balances the interests of the parties, rather than take a meat-ax approach.133 Similarly, whether or not Rule *43037 applies, the balancing we mandate will be somewhat different from — but just as critical — as in the usual Rule 37 case. In the latter context, courts are typically concerned with balancing the due process claim of a party resisting disclosure to his day in court against the court’s need to vindicate its authority. Here, we are balancing the due process claims of the party seeking disclosure against the other party’s interest in, inter alia, protecting valid privileges. We also point out that if Rule 37 limits dismissal when material is not privileged and there is a production order, then certainly if the material is privileged and there is not a production order — which plaintiff argues makes this a non-Rule 37 case — dismissal should also be limited. Thus, whether or not Rule 37 and the cases decided thereunder apply, they afford at the very least a proper and analogous framework demonstrating that a balancing of the parties’ interests must be undertaken, and some of the factors to be considered in striking that balance.
In Société Internationale v. Rogers134 the Supreme Court reversed the decision below to dismiss an action when one party failed to produce all the documents requested in discovery. Justice Harlan’s opinion stated:
In our opinion, whether a court has power to dismiss a complaint because of non-compliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ as well as by authorizing any order which is “just.”135
The opinion concluded that “Rule [37] allows a court all the flexibility it might need in framing an order appropriate to a particular situation,”136 thus recognizing the need to weigh the surrounding circumstances. In particular, the Supreme Court recognized as a valid distinction instances where the failure to produce documents was caused by inability on the part of a party, as opposed to willfulness or bad faith. In the discovery here, there has been no allegation of bad faith on the part of the Government. Indeed, plaintiff — like petitioner in Société Internationale — turned over several thousand pages of documents to defendant at its request or pursuant to earlier orders by the district court. The district court here had already found, moreover, that the documents plaintiff had were state secrets, and that plaintiff was under no duty to reveal them.137
Our recent holding in Zerilli v. Smith,138 also seems relevant. That case involved an action by plaintiffs under the Privacy Act and the Fourth Amendment against the Justice Department. Plaintiffs’ attempts in the suit to force disclosure of a reporter’s sources under Rule 37 were rebuffed, however: “Because we believe that in this case the First Amendment interest in protecting a news reporter’s sources outweighs the interest in compelled disclosure, we affirm the District Court’s decision to deny the *431motion to compel discovery.” 139 This court noted in Zerilli that overwhelming precedent supports a balancing of interests when a privilege is asserted.140 The court there balanced the two interests, the newspaper reporter’s sources and the plaintiffs’ interest in compelled disclosure, and concluded that compelled disclosure had the lighter weight. Only if we reduce our interests in national security and the confidentiality of our diplomatic and military communications to less than either a newspaper reporter’s sources or compelled disclosure can we justify a dismissal here.
Similarly, in a case explicitly denying the applicability of Rule 37, the Fifth Circuit held in Wehling v. Columbia Broadcasting System that a district court’s dismissal of a plaintiff’s action when the defense sought privileged matter from him — precisely the situation here — was improper without a balancing of the parties’ respective interests.
[T]he [district] court should have measured the relative weights of the parties’ competing interests with a view toward accommodating those interests, if possible. This balancing-of-interests approach ensures that the rights of both parties are taken into consideration before the court decides whose rights predominate.141
In other non-Rule 37 cases — involving, like Wehling, claims brought by plaintiffs who then sought during discovery to invoke the Fifth Amendment privilege against self-incrimination — courts have ruled that dismissal is not automatic, that some balancing of the parties’ interests is required, and that efforts at accommodation of both sides must be made.142
Balancing the relevant factors we outlined earlier143 seems to us to make the case at hand rather easy. The likelihood of injustice to defendant is small indeed. As we pointed out before, no constitutional rights are threatened, only registration is imminent, no jail sentence looms. The civil/criminal distinction is important, and was emphasized by the courts in both Reynolds and Andolschek. 144 On the other hand, the *432consequences of revealing the evidence are of the same magnitude as revealing the military secrets in Reynolds, a case where the Supreme Court decided to strike the balance on the Government’s side. In the district court’s earlier memorandum and order sustaining the Attorney General’s claim of state secrets privilege, it was held that “disclosure ... would compromise valuable sources of foreign intelligence and have adverse consequences on the President’s ability to conduct the nation’s foreign affairs and to protect the nation’s security.”145 We have inspected the in camera material and endorse Judge Flannery’s appraisal of the consequences of disclosure. We find analogous an observation in a related proceeding in the Second Circuit:
It seems to the [cjdurt that this may well be an attempt to checkmate the Government’s legal quest for information by requiring the presence for interrogation of high level Government officials engaged in one of the Nation’s most sensitive security areas. It confronts them with the choice of submitting to the questions of the defendant or, in the alternative, of abdicating its statutory rights.146
And, as we have already discussed, the district court’s findings do not demonstrate that the material which defendant seeks is relevant, let alone necessary, to the defense.147 It only confirms that the Attorney General is acting with considerations of the national defense, internal security, and foreign relations of the United States in mind — no improper motivation whatsoever. The Government, as we discussed earlier, has been cooperative in the suit thus far, and has an important and legitimate interest in maintaining this lawsuit.
There are, finally, alternatives available to defendant, which will afford the information which would be useful to it at a civil trial, while not impairing the Government’s legitimate interests. The Second Circuit has suggested in its opinion In Re Attorney General of the United States148 a procedure which the district court could easily have adopted. There, in overturning a contempt citation of the Attorney General for his refusal to deliver certain informant files to the opposing plaintiff’s attorneys, the appellate court directed the trial court to make representative findings of fact from the files which would not compromise the information which the Attorney General asserted was privileged. A similar procedure would have been practical in this case, since due process would not require that the defendant gain actual physical possession of the documents. So long as the defendant is not deprived of the benefit of any of the evidence the documents might contain, in fact, it has lost nothing at all. In Société Internationale the Supreme Court noted the *433availability of a similar remedy and the erroneous refusal of the district court to consider it.149 The Attorney General himself could be required to make the necessary findings of fact. Finally, rather than put the Government in the dilemma of choosing either to drop its case or turn the state secrets over to defendant, the district court may properly itself delve more deeply than it might ordinarily into marshalling the evidence on both sides for the selective prosecution claim. This investigating is done routinely, for instance, by courts in deciding Freedom of Information Act requests. The district court may also consider other alternatives which the parties suggest.
It is possible, however, that the district court’s evaluation of the circumstances will lead it to conclude that we have underestimated the defendant’s stake or the necessity of the documents, or that the alternatives we have suggested are impractical, or that in some other way our weighing has been inequitable. If so, the district court should not hesitate to reweigh the factors it deems important and reevaluate the propriety of a dismissal. However, if our analysis above has correctly identified and described the relevant circumstances, we think a dismissal improper.
IV. Conclusion
The district court erred in its conclusion that defendant is entitled to discovery for the selective prosecution claim. The evidence cited in the opinion does not demonstrate a colorable showing that the Attorney General was improperly motivated. Moreover, a ruling that defendant was entitled to discovery on the selective prosecution claim requires a colorable showing of selection as well as improper motive, and no such finding was made. On remand, the district court should reevaluate in light of today’s opinion the evidence which defendant has presented for its selective prosecution defense. Finally we caution the district court that, even if both elements of the selective prosecution claim are sufficiently present to warrant discovery, it does not follow that dismissal is the proper remedy if the material sought for discovery is a state secret. The factual circumstances surrounding the litigation must be borne in mind and a balancing of the interests of both parties must be undertaken.
Reversed and remanded.