Full opinion text
Opinion for the Court filed by Circuit Judge WILKEY. OUTLINE OF OPINION Page I. Background.......................-........................ 434 A. Structure of the NOP A----------------------------------- 434 B. Legislative History of Title II------------------------------ 435 C. FERC’s Incremental Pricing Rules--------------------------- 436 D. The House Veto--------------- 437 E. Rehearing Proceedings before the Commission----------------- 438 II. Jurisdiction ............-.................................- 439 III. Severability...................-........................... 440 IV. Mootness................-................................. 445 V. Constitutionality of the One-House Veto...........-.......— 448 A. Federal Rulings on the Legislative Veto---------------------- 449 B. Political Question---------------------------------------- 451 C. The Necessary and Proper Clause--------------------------- 454 D. The Constitutional Lawmaking Process----------------------- 456 1. Exceptions to the requirements of Article I, Section 7 ------- 457 a. Legislative initiation of agency investigations----------- 457 b. Presidential plans for executive reorganization.......... 458 c. Presidential foreign affairs and national defense decisions . _ 459 d. Congressional proposals for constitutional amendments____ 460 2. Purposes of the lawmaking procedures-------------------- 461 a. Presentation to the President------------------------ 461 b. Bicameralism_____________________________________ 464 3. The one-house veto under Article I, Section 7-------------- 464 E. Separation of Powers_____________________________________ 470 1. Meaning of separation of powers ------------------------ 471 2. Intrusion into the executive sphere----------------------- 472 a. Significance of FERC’s independence------------------ 472 b. Congressional disruption and control of the administrative process__________________________________________ 473 3. Intrusion into the judicial sphere------------------------- 477 F. Conclusion______________________________________________ 478 VI. Proceedings on Remand ..............................-...... 479 WILKEY, Circuit Judge: Petitioners Consumer Energy Council of America, Consumer Federation of America, and Public Citizen (“CECA”) challenge the constitutionality of a legislative veto provision in the Natural Gas Policy Act of 1978 (“NGPA”). Title II of the NGPA directs the Federal Energy Regulatory Commission (“FERC”) to implement an “incremental pricing” program, which shifts part of the price increase resulting from the deregulation of new natural gas from residential users to industrial users. Phase I of the program directs the Commission to promulgate within one year a rule applying only to “boiler fuel use of natural gas by any industrial boiler fuel facility.” Phase II requires the Commission to issue within eighteen months a rule expanding the program to “any industrial facility which is within a category defined by the Commission” and not otherwise exempt. The statute provides, however, for the Phase II rule to take effect only if neither house of Congress adopts within thirty days a resolution disapproving the rule. FERC issued its Phase II rule on 6 May 1980, three days before the deadline. Two weeks later the House of Representatives voted its disapproval. CECA then filed a petition for rehearing asking the Commission to make the rule effective in spite of the House’s action, on the ground that the one-house veto provision was unconstitutional. Refusing to pass on the constitutional question, the Commission denied the petition and revoked the Phase II rule. CECA sought review in this court, and also petitioned FERC for rehearing on the revocation order. This second petition was denied, and CECA filed another petition in this court. The two petitions for review were consolidated and are now before us. FERC has not taken a position on petitioners’ constitutional claims, asserting that this court may dispose of the case on other grounds. It argues that the legislative veto provision is not severable from the provision authorizing the Commission to promulgate a Phase II rule, leaving petitioners with no claim for effective relief even if section 202(c) is declared unconstitutional. It also contends that the case is moot because the rule was properly revoked. The United States Senate and the Speaker of the House of Representatives have entered the case as amici curiae. In addition to supporting FERC’s position, they contend that this court lacks jurisdiction to hear the case, a contention both FERC and CECA dispute, and that the legislative veto provision is constitutional. The United States has also appeared as amicus curiae, taking the opposing view that the veto provision is unconstitutional. Finally, several industry groups have filed briefs as intervenors, arguing generally in favor of the positions of both FERC and Congressional amici. Having determined that we have jurisdiction and that the constitutional issue is properly presented, we hold that the one-house legislative veto provision in section 202(c) of the NGPA is unconstitutional. Accordingly, we reverse and remand the Commission’s orders and instruct it to reinstate the Phase II rule. The Commission is free, however, on its own motion and pursuant to the notice and comment requirements of the Administrative Procedure Act (“APA”), to consider amending the Phase II rule or changing its effective date. I. BACKGROUND A. Structure of the NGPA Title I of the NGPA provides for the phased deregulation of natural gas prices. It sets allowable wellhead prices of gas considerably higher than under the cost-based system of rate regulation, and provides that “new” natural gas prices will be decontrolled on 1 January 1985. Title II of the Act provides for incremental pricing as a means of easing the transition to deregulation. Incremental pricing is a “mechanism for passing through to end users some of the increased prices for natural gas,” so that large industrial gas users will pay a disproportionate share of the increases in gas prices. The program’s goals are “to restrain the prices paid by pipelines for natural gas supplies, particularly after deregulation, and to protect residential consumers from higher prices resulting from deregulation.” Title II provides for implementation of incremental pricing in two phases. Section 201 requires FERC within one year to issue an incremental pricing rule covering boiler fuel users. Section 202(a) provides that within eighteen months “the Commission shall, by rule, prescribe an amendment to the [Phase I] rule ...” to extend incremental pricing to other industrial users. However, the Phase II rule “shall take effect only as provided under subsection (c) of this section,” which states that the rule shall take effect after thirty legislative days “unless, during such 30 day period of continuous session of Congress, either House of the Congress adopts a resolution of disapproval.” Thus, either house of Congress may veto FERC’s Phase II rule by majority vote. B. Legislative History of Title II In April 1977 President Carter proposed to Congress a comprehensive energy program. In the congressional debate that followed a principal issue was whether to remove wellhead price controls on natural gas. There was widespread agreement that price controls should at least be loosened and that the dual gas market — in which the price of federally regulated interstate gas was lower than the price of intrastate gas, which was not subject to federal regulation — should be eliminated. But questions of specific tactics and timing were hotly disputed, with the primary debate centering on proposals for price deregulation. Two major concerns were the effect of deregulation on consumers and the problem of moving from a regulated to a deregulated market. Incremental pricing was proposed as a solution to both problems. President Carter’s natural gas proposal and both the original bills passed in the House and the Senate contained provisions for incremental pricing. In the House a special ad hoc energy committee reported out an energy bill rejecting natural gas deregulation and extending price regulation to intrastate gas, but raising the allowable price of gas by a substantial margin. The bill included a broad provision applying incremental pricing to interstate and intrastate pipelines and to local distribution companies. This meant that FERC would set both the price charged by pipelines to distribution companies and the price charged by distribution companies to local gas users. On 3 August 1977 the committee bill prevailed by a vote of 239-180. The bill did not provide for a legislative veto of FERC’s incremental pricing regulations. In the Senate the President’s bill was reported out of committee without recommendation. A substitute bill calling for deregulation ultimately prevailed on 4 October 1977 by a 50-46 vote. This bill applied incremental pricing only to charges by interstate pipelines to distribution companies, rather than also covering intrastate pipeline sales and sales from distribution companies to low-priority intrastate industrial users. Like the House bill, the Senate bill did not provide for legislative review of any incremental pricing rule. The two bills went to conference. It took the conference committee ten months to agree on a compromise bill calling for phased decontrol of natural gas pricing, along with a two-phase incremental pricing program which applied only to sales by interstate pipelines to distribution companies. The conference bill proved extremely controversial in both houses. After days of intense debate, the Senate passed the bill on 27 September 1978 by a vote of 57-42. The House ultimately considered all five energy bills, including the natural gas bill, in a single vote. The clear purpose of this unusual decision to consider five bills at once was to prevent certain defeat of the NGPA. The motion to suspend the rules to allow joint consideration was passed, after extremely bitter debate, on 13 October 1977 by a vote of 207-206. The House then approved the energy package on 14 October 1978 by a vote of 231-168. The bills were signed into law by the President on 9 November 1978. C. FERC’s Incremental Pricing Rules As required, the Commission promulgated Phase I regulations applying incremental pricing to large industries using natural gas as boiler fuel. The regulations were issued on 28 September 1979, and became effective 1 January 1980. On 15 November 1979 the Commission issued a notice of proposed rulemaking providing for a broad Phase II rule that applied incremental pricing to all industrial users not specifically exempted by statute. On 6 May 1980, three days before the statutory deadline, the Commission adopted Phase II regulations based on its original November 1979 notice. During public hearings FERC had received many comments urging that incremental pricing not be expanded at all because market conditions had changed and because the incremental pricing concept itself was flawed. FERC rejected these suggestions: The Commission believes that it was neither requested nor authorized to second-guess the social and economic judgments .that the Congress made in enacting Title II. The role of the Commission under Section 202 is more limited.... It is up to the Congress to decide whether this Phase II submittal meets adequately the social and economic goals of the incremental pricing program or, indeed, whether those goals are still appropriate. By virtue of the very review procedures built into section 202, it seems clear that the Congress sought to have this Commission develop a meaningful Phase II rule. The Congress would not have a meaningful choice if the Commission were to offer no rule, or a very narrow rule, for its review.. . . The Commission believes that this Phase II rule presents a meaningful choice to the Congress. D. The House Veto The House Committee on Interstate and Foreign Commerce conducted hearings on the Phase II rule on 3 April and 6 May 1980. On 6 May, the same day FERC issued the final rule, the Subcommittee on Energy and Power reported favorably on a resolution of disapproval, and the next day the full committee did the same. The committee defined its task as determining “whether the risk of economic dislocaron in requiring certain industrial customers at this time to shoulder increased gas costs is outweighed by the benefits in sheltering higher priority users from some cost increases and whether an expansion of incremental pricing at this time is consistent with current national priorities.” In recommending disapproval of the rule, the committee emphasized that energy market conditions had changed drastically and in unanticipated ways since passage of the NGPA. Furthermore, uncertainty about the value of incremental pricing remained because there had not yet been sufficient time to evaluate the effects of Phase I. “Accordingly, the committee finds that current uncertainties with respect to phase II of incremental pricing must be substantially reduced before it would consider implementation of a phase II rule.” During the floor debate several reasons were given in support of the veto resolution. Most supporters declared that FERC had acted within its statutory mandate, but that changed circumstances and uncertainty about incremental pricing dictated that Congress drop the Phase II approach. Most congressmen appeared to agree with Representative Sharp’s view that the congressional veto provision in section 202(c) was being used “not as a way to discipline [FERC], but as a way for us, as I think [was] intended by the conferees on the 1978 act, to have a second look at the policy that we could not be certain of[,] that we were not willing to mandate at that time.” In addition, representatives who had opposed incremental pricing in 1978 argued for repeal of Phase I and declared their support for the veto because incremental pricing was unwise as a matter of policy. Other supporters of the resolution argued that FERC had violated the intent of Congress, by promulgating either too narrow a rule or too broad a rule. On 20 May 1980 the veto resolution passed the House by a vote of 369-34. E. Rehearing Proceedings before the Commission On 5 June 1980 CECA petitioned for rehearing of the 6 May order, seeking elimination of the provision conditioning the rule’s effectiveness on the failure of either house to pass a veto resolution within thirty days. The petition expressly challenged the constitutionality of section 202(c). On 1 August 1980 FERC denied the petition. It declined to rule on the constitutionality of the veto, finding “that sound administrative practice requires the presumption of constitutional validity of the statutes entrusted to this Commission for implementation.” The Commission then revoked the vetoed Phase II rule. It reasoned that if section 202(c) were declared unconstitutional the rule might take effect. This result was undesirable because “the Commission has not yet independently evaluated whether the Phase II rule meets the social and economic goals of the Title II incremental pricing program” and because “we might well have very serious reservations as to the wisdom of making the Phase II rule effective.” Therefore, to ensure that it would have an opportunity to evaluate Phase I and Phase II if section 202(c) were held invalid, the Commission decided to “exercise its authority under sections 201 and 202 to amend the rule under section 201 to revoke the amendments made by [the Phase II order].” Petitioners then sought rehearing of the revocation order. They challenged the Commission’s authority to revoke the rule, and argued that the order was issued in violation of the APA’s notice and comment requirements. The Commission denied the petition, finding that sections 201 and 202 of the NGPA permitted revocation by giving it power to amend the rule. It also found that the APA’s requirements were met by the original notice of November 1979, and ruled in the alternative that there was “good cause” to ignore the APA in this case. Petitioners sought judicial review of both the revocation order and the denial of the second rehearing petition, and this court consolidated the two petitions. We find that the revocation order was invalid, that section 202(c) is unconstitutional, and that the Phase II rule should become effective absent further Commission action to postpone or amend it. The Commission is free to conduct further proceedings not inconsistent with this opinion. II. JURISDICTION Only Congressional amici contest this court’s jurisdiction. Their motion to dismiss, opposed by both petitioners and respondent FERC,' asserts that this case should have been brought in the district court rather than the court of appeals. We hold that this case is properly in this court, and we deny the motion. Section 506 of the NGPA gives this court jurisdiction to review FERC orders and rules issued under the Act. Congressional amici insist, however, that petitioners do not seek review of either an order or a rule: They instead challenge FERC’s acknowledgement that by operation of law its proposed rule is not effective. In essence, petitioners seek to compel FERC to adopt the incremental pricing rule which the House of Representatives has rejected. The decision of an agency not to adopt a rule can be challenged only by an action for mandamus and similar means in the district court, not this Court, and this petition for review should be dismissed. Congressional amici also contend that this case belongs in the district court because that court is better equipped to compile a record and accord effective relief. We are unpersuaded by either of these arguments. The suggestion that challenges to an agency’s refusal to adopt rules or conduct a rulemaking may be brought only in a district court is erroneous. In WWHT, Inc. v. FCC we found that this court had jurisdiction to review an allegation “that the FCC abused its discretion when it denied [a] request for rulemaking.” Thus even if we analogized CECA’s complaint here to a challenge to an agency refusal to conduct a rulemaking, we still would have no reason for finding a lack of jurisdiction. It is clear, moreover, that petitioners do indeed seek review of both a rule and an order of the Commission. CECA raises constitutional challenges to the Phase II rule and statutory challenges to the Commission’s decision to revoke the rule. FERC issued a final rule, the effectiveness of which was conditioned on the failure of either house of Congress to veto it. CECA petitioned for removal of that provision, but FERC refused. The rule remained a final agency rule, which CECA challenged on constitutional grounds. FERC then revoked the rule, an action which was “final in every sense of the word.” We also reject the suggestion that the district court is in any way a more appropriate forum in this case. The rulemaking here has been completed. No further compilation of a record is necessary; the issues raised are purely legal and have been fully briefed on all sides. This court is competent to grant whatever relief might be necessary. The simple fact that petitioners desire a different outcome does not turn their claim into one for mandamus. In sum, there is no reason in law or policy for this case to be brought in the district court. To accept Congressional amici’s interpretation would be to create a standard whereby review of rules would be heard in one court and review of revocation of rules in another, even though the statute, record, and issues would be virtually identical. We decline to reach such a result because it would violate the congressional intent expressed in section 506 that review of final Commission decisions be conducted in the courts of appeals. III. SEVERABILITY FERC, joined by Congressional amici and intervenors, argues that this court should not reach the constitutional issues because even if we found the legislative veto provision unconstitutional, petitioners would not be entitled to effective relief. The argument is that section 202(c) is inseverable from section 202(a) because Congress would not have authorized Phase II incremental pricing had the legislative veto provision not been included. Thus, if subsection (c) is unconstitutional all of section 202 must be struck down. FERG would be left without authority to promulgate any Phase II rule, and petitioners would not be entitled to reinstatement of the rule issued by FERC in May 1980. Petitioners deny that section 202(c) is inseverable from the rest of section 202, but they go on to argue that if section 202 must stand or fall as one, then section 202 is inseverable from the rest of Title II, which in turn is inseverable from the NGPA. Striking down the entire NGPA arguably would provide petitioners with effective relief because it would reinstate the pre-existing stringent natural gas price control scheme. FERC denies that section 202 is inseverable from the remainder of the NGPA, arguing that Phase I and Title I could go into effect without change. Gas Consumers, on the other hand, agree that section 202 is inseverable from section 201, but contend that Title I may stand alone. We do not need to reach these secondary arguments, however, because we find that subsection (c) is severable from the remainder of section 202. The presence of a severability clause, which expressly sets forth congressional intent that a statute stand in the event one of its provisions is struck down, makes it extremely difficult for a party to demonstrate inseverability. When there is no such clause, however, as in this case, the test is less certain. Petitioners argue that severability is presumed and that the proponents of inseverability must prove otherwise. This standard is derived from Tilton v. Richardson, which stated that “ ‘[t]he cardinal principle of statutory construction is to save and not to destroy,’ ” and from Buckley v. Valeo, which held: “ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’ ” Congressional amici and intervenors, on the other hand, contend that petitioners are required to overcome a presumption that section 202(c) is inseverable from section 202 as a whole. They cite the Supreme Court’s statement in Carter v. Carter Coal Co. : In the absence of [a severability] provision, the presumption is that the legislature intends an act to be effective as an entirety — that is to say, the rule is against mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it. We think the question where the presumption lies is mostly irrelevant, and serves only to obscure the crucial inquiry whether Congress would have enacted other portions of the statute in the absence of the invalidated provision. This is fully in accord with United States v. Jackson, in which the Supreme Court refused to place significance on the absence of a severability clause: “[WJhatever relevance such an explicit clause might have in creating a presumption of severability, ... the ultimate determination of severability will rarely turn on the presence or absence of such a clause.” Rather, the question is whether Congress would have enacted the remainder of the statute without the unconstitutional provision. We do not view the imposition of any unspecified burden of persuasion on either side as beneficial to the inquiry. We are presented with two remarkably different interpretations of the legislative history and intent underlying section 202. Petitioners contend that incremental pricing was critical to the compromise that enabled the NGPA to pass. They point out that the legislative review provision was added only in conference, that the provision was not emphasized'in either the conference report or the subsequent floor debates, and that a major concern of many congressmen was that broad price protection be provided for consumers. Respondent and its supporters, on the other hand, claim that the legislative veto provision was central to the compromise that divided incremental pricing into two stages. They point to assurances made during the congressional debates that Phase II did not have to go into effect, and contend that without the veto provision Phase II incremental pricing would not have been authorized. Though the legislative history, as almost always is the case, contains contradictory comments about the importance of section 202 and subsection (c), we find that Congress would have enacted section 202 in the absence of the legislative review provision in subsection (c). At the outset, we reject intervenors’ view that the conference report in any way “emphasized” that section 202 would not have been enacted without subsection (c). The report simply describes the working of that section, and thus states that the Phase II rule will go into effect only if neither house disapproves. No one disputes that this was the intent of section 202 as enacted. The question before us, however, is what Congress would have intended in the absence of section 202(c). On this question the conference report is silent. To the extent the report does aid the inquiry, it supports petitioners’ argument for severability, as its summary of Title II fails to mention, much less emphasize the importance of, the legislative review provision in section 202. Combined with the fact that none of the incremental pricing provisions in earlier bills were made subject to congressional review, this lack of emphasis militates against the view that the veto provision was essential to the incremental pricing and NGPA compromises. The floor debate on the conference committee compromise reinforces our finding of severability. It is true that there were statements on the floor of each house explaining that Phase II could be rejected by legislative veto. In response to criticisms of incremental pricing, Senator Jackson noted that “this bill does not compel incremental pricing with respect to any industrial use other than in large boilers. Extension of incremental pricing beyond boiler use could be prevented by a majority vote of either House of Congress 2 years from now.” In the House, Representative Dingell noted that the intent was not to “drive industrial users off natural gas and onto other fuels,” and went on to describe “several statutory guarantees against such an unintended result,” one of which was that “[a]ny broadening of incremental pricing to a broader universe of industrial users is subject to congressional review and single House veto.” Considered in isolation, these two statements tend to support respondent’s view that section 202(c) was essential to the statutory scheme. But other remarks by these same congressmen indicate their belief that Phase II was more than a mere possibility, it was a desirable policy. Senator Jackson’s primary response to concerns about the potential ill-effects of incremental pricing was not to point out that a Phase II rule could be vetoed, but to argue that it would succeed because it would not cause gas prices to rise higher than alternative fuel prices. Representative Dingell made the same point, and then went on to argue that “a broadening of incremental pricing to other industrial users will give added assurances against forced conversions.” He thus saw Phase II as important in ensuring the overall success of incremental pricing. More important, these two statements are the sole references to subsection 202(c) during the days of debate which focused quite extensively on incremental pricing. These debates leave absolutely no doubt that the controversy over incremental pricing did not hinge on whether it would be limited to boiler uses or extended to other industrial uses. Opponents of the Act’s incremental pricing provisions stressed primarily the regional discrimination that would result from applying it only to interstate pipelines, although some attacked the concept itself. And the most pervasive defense of Title II was that it would provide strong protection against large price increases for residential consumers. Nothing in these dozens of remarks remotely indicates that these proconsumer arguments would have changed into opposing arguments had Phase II not been made subject to legislative review. . We are convinced, then, that Congress would have enacted both phases of incremental pricing without the veto provision. Title II of the NGPA set forth a congressional policy in favor of incremental pricing. Although the exact contours were left in doubt, the Congress made, through its delegation to FERC, at least a tentative decision in favor of extension of incremental pricing to nonboiler industrial uses. By finding the veto provision severable we do not destroy the distinction Congress made between Phase I and Phase II. The scope of Phase I was unambiguous, and the Commission was left with mostly technical discretion to formulate a workable rule. Phase II, however, was undefined; the Commission was directed only to come up with some extension of incremental pricing. The concerns about extending incremental pricing, especially the possibility that gas users would be forced to switch to other fuels, were left open for the Commission to consider. To some extent the Commission did exercise such discretion, as it set a moderate alternative fuel price level so that its extension of incremental pricing would not place great burdens on the uses to be covered by Phase II. Moreover, the Commission’s stated reason for not considering a more limited Phase II rule was that it thought the veto provision left that determination to Congress. If the legislative veto had not been enacted, the scope of the Phase II rule would have been left to the Commission’s discretion, which would include consideration of the effect of changed market conditions on the usefulness of incremental pricing. The distinction between Phase I and Phase II thus would have been preserved, and the same basic policy underlying Title II would have been enacted. The veto provision was not essential to the statutory policy, and it thus is severable. IV. MOOTNESS FERC contends that its revocation order renders this case moot because there no longer is a rule for petitioners to challenge. Petitioners make two responses. First, they assert that FERC was not authorized to revoke the rule. Second, they contend that even if FERC had power to revoke the rule, the revocation order was invalid because FERC did not comply with the notice and comment requirements of the APA. FERC replies that it has revocation authority under sections 201(a) and 202 of the NGPA, that the original Phase II notice and opportunity to comment encompassed this revocation order as well, and that in any event this order fell within the “good cause” exception to the notice and comment requirements. We find that FERC’s revocation order is invalid because it was issued in violation of the APA, and thus do not reach the issue whether FERC was authorized to revoke the rule. FERC makes two arguments why it was not required to provide notice and comment prior to revoking the Phase II rule. First, it argues that the November 1979 notice and opportunity to comment provided prior to promulgation of the Phase II rule was sufficient to cover the order of revocation. FERC provides no support for this contention, but intervenors expand on it by asserting that petitioners had ample notice originally that one option to be considered by the Commission was to adopt no rule at all, and that this is all the APA requires. We disagree. Sections 553(b) and (c) set forth notice and comment requirements for “rule making,” which is defined in section 551(5) to mean “agency process for formulating, amending, or repealing a rule.” Thus, the APA expressly contemplates that notice and an opportunity to comment will be provided prior to agency decisions to repeal a rule. If the notice and comment provided prior to a rule’s promulgation were meant to be sufficient to encompass any later repeal of the rule, simply because there was always a possibility that no rule would be adopted, the statute never would have included repeal of a rule within the definition of rule-making. The value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not undo all that it accomplished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal. Such an opportunity was lacking here. The Commission consistently stated that it had no choice but to issue a broad Phase II rule. The Commission issued a final rule, and petitioners sought to amend the provision making the rule’s effectiveness contingent on legislative review. Although the petition for rehearing said nothing about repealing the rule, and no other party requested such action, the Commission went ahead and rescinded it. The specific concerns that motivated this decision — the constitutionality of the legislative veto and the results that might , follow from a judicial decision to strike down the veto — were different from those raised during the original rulemaking. All of these factors demonstrate that notice and comment would have been useful prior to repeal, and thus buttress further our cbnclusion that the Commission was required to follow section 553. The Commission’s second argument is that additional notice and comment, even if normally required, were not required here because the Commission found, in accordance with the exception contained in section 553(b)(B), that they were “unnecessary" in this case. FERC contends that it acted “to insure that defectively promulgated regulations will not become effective,” citing its statements in the revocation order that it had not engaged in an independent determination of the validity of the policies embodied in the Phase II rule. This contention is easily rejected. Section 553(b)’s “good cause” exception requires the agency to state the reasons for finding “good cause” in its decision. Here, however, FERC merely asserted that further notice and opportunity to comment were unnecessary; only later did it argue that they were unnecessary because the regulations were defective. Furthermore, the argument that repeal was required because the regulations were defective does not explain why notice and comment could not be provided. This court has held that “use of these exceptions by administrative agencies should be limited to emergency situations.” The fact that FERC considered these regulations defective did not imply that an emergency existed. Were a court to strike down the legislative veto provision in section 202(c), the Commission would be able to assert the same modification and revocation authority it asserted in this case, and thus be able to consider altering the rule. Since no emergency existed, the Commission was not entitled to ignore section 553(b). V. CONSTITUTIONALITY OF THE ONE-HOUSE VETO Petitioners raise four constitutional challenges to the legislative review provision in section 202(c). They claim that the veto provision violates the constitutional doctrine of separation of powers; that it deprives the President of his veto power under Article I, Section 7 of the Constitution (the Presentment Clause); that it violates Article I, Section 7’s requirement of bicameralism; and that it delegates legislative authority without standards or provision for judicial review. FERC, Gas Consumers, and PEG have taken no position on these claims. Congressional amici and Gas Suppliers, however, contest each of these arguments, and assert generally that Congress is authorized to use the one-house veto device under the Necessary and Proper Clause of the Constitution. We hold that section 202(c) is unconstitutional. The primary basis of this holding is that the one-house veto violates Article I, Section 7, both by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress. In addition, we find that the one-house veto contravenes the separation of powers principle implicit in Articles I, II, and III because it authorizes the legislature to share powers properly exercised by the other two branches. Because we find these bases sufficient to resolve the issue, we do not reach the undue delegation of powers issue raised by petitioners. A. Federal Rulings on the Legislative Veto Although Congress and the Executive have been at odds for decades over the constitutionality of the legislative veto, the Supreme Court has never ruled on the issue. Three federal courts presented with the issue have disposed of the cases without addressing the merits. Two other federal courts, however, have ruled on the constitutionality of two different legislative review provisions, one provision being struck down and the other being upheld. In Atkins v. United States the Court of Claims upheld (4-3) the one-house veto provision of the Federal Salary Act of 1967, under which the President’s recommendations for salaries of certain government officials became law unless either house of Congress disapproved them within thirty days. In March 1974 the Senate vetoed the President’s recommendations for judicial salary increases, and 140 federal judges brought suit claiming inter alia that the veto provision was unconstitutional. In rejecting this claim the court emphasized that it was focusing only “on this specific mechanism in this specific statute — how it works, what it involves, what values and interests are implicated — not on an overarching attempt to cover the entire problem of the so-called legislative veto, or even a large segment of it.” The Atkins majority began by determining that Congress had power under the Necessary and Proper Clause to enact a veto provision. It then found that the Act’s legislative review provision did not violate either the principle of bicameralism, because “the one-House veto does not alter the existing law in any fashion, but only preserves the legal status quo”; the Presentment Clause, because the President was permitted to recommend whatever he wished, including no recommendation at all; or the separation of powers doctrine, because the veto provision is an aid to legislative policymaking and does not interfere with any essential executive function. The three judges in dissent disagreed completely, arguing that the veto provision violated all of these constitutional doctrines. The other federal court ruling is Chadha v. Immigration & Naturalization Service in which the Ninth Circuit struck down a provision of the Immigration and Nationality Act allowing either house of Congress to veto a suspension of deportation granted by the Attorney General. The Immigration and Naturalization Service (“INS”) ruled that Chadha could remain in the United States even though he was deportable, but the House vetoed this decision and the INS issued a final order of deportation. Chadha petitioned for appellate review. A unanimous panel declared the veto provision violative of the doctrine of separation of powers. The court held that such a violation occurs when there is “an assumption by one branch of powers that are central or essential to the operation of a coordinate branch, provided also that the assumption disrupts the coordinate branch in the performance of its duties and is unnecessary to implement a legitimate policy of the Government.” It then stated that however the congressional review power was characterized, its use in the immigration context was unconstitutional: if used as a “correction of judicial or executive misapplication of the statute,” it interfered with a core function of the Judiciary; if used as a “means for sharing the administration of the statute with the Executive on an ongoing basis,” it interfered with a core function of the Executive; and if used as an “exercise of a residual legislative power,” it violated the constitutional requirement of bicameralism Like the majority in Atkins, the Chadha court sought to minimize the reach of its holding: [W]e are not here faced with a situation in which the unforeseeability of future circumstances or the broad scope and complexity of the subject matter of an agency’s rulemaking authority preclude the articulation of specific criteria in the governing statute itself. Such factors might present considerations different from those we find here, both as to the question of separation of powers and the legitimacy of the unicameral device. This background makes clear that this case is truly one of first impression. The Supreme Court has never ruled on the legislative veto, and neither of the one-house veto decisions deals with legislative review of agency rulemaking. We therefore cannot rest our decision on any precedent but must consider carefully the applicability of the constitutional provisions relied on by both sides to the dispute. B. Political Question Congressional amici argue that this court should not decide the constitutionality of the one-house veto because this is a political question. They contend that until recently “the political branches resolved their disputes in this context solely by political means, without any intervention by the courts,” and that “a stalemate or impasse on general principles necessitating judicial intervention is lacking.” Since the Senate supports the legality of the House’s action in this case, and since the Executive apparently agrees with the House on the undesirability of expanding incremental pricing, all that is presented here is “an abstract constitutional position.” Citing this court’s en banc decision in Clark v. Valeo, in which we refused to reach the merits of a challenge to a one-house veto provision, Congressional amici argue that this issue should be left to the politically representative branches. This reliance on Clark v. Valeo is misplaced. The Clark majority held that “the matter before us does not present a ripe ‘case or controversy’ within the meaning of Article III,” while specifically stating that “we need not address those [questions] pertaining to standing or political question, because the unripeness of the action is so pervasive.” The case lacked ripeness because the legislative review provision at issue had not been invoked: “Until Congress exercises the one-house veto, it may be difficult to present a case with sufficient concreteness as to standing and ripeness to justify judicial resolution of the pervasive constitutional issue which the one-house veto provision involves.” Here, of course, the House of Representatives did exercise the disapproval power conferred by section 202(c), thus presenting us with a concrete ease in which to adjudicate the constitutionality oí the one-house veto. Baker v. Carr set forth the relevant political question considerations, which, as. recently summarized by Justice Powell, lead to “three inquiries: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?” The first two issues are easily resolved. Nothing in Article I, Section 7 suggests that Congress is permitted to decide when a legislative action must be performed by both houses and presented to the President; indeed, the inclusion of Clause 3 of that section was intended to prevent Congress from subverting the presentation requirement by merely restyling the nature of its action, Both requirements are specific limitations on congressional power, and it would be exceedingly anomalous to hold that the Framers meant for Congress to determine when the limitations apply. Moreover, no special nonjudicial expertise is needed in determining their applicability. Rather, these issues require “no more than an interpretation of the Constitution.” Baker listed three prudential considerations that might lead a court to refuse to resolve a constitutional issue: “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” The latter two are plainly inapplicable here, so the contention must rest on the need to respect the political branches. Congressional amici contend that a judicial resolution would violate that respect because the Legislature and the Executive have been able to resolve the dispute over the legislative veto “solely by political means” and because the dispute remains relatively young. They also contend that there actually is no “real dispute” over the propriety of the Phase II rule, and that combined with the lack of a stalemate on the veto issue, this is reason enough for this court to defer resolution. We disagree. Whether there is a “real dispute” over the policy choice not to implement the Phase II rule is irrelevant. The critical dispute is whether the procedure by which that choice was made is constitutional. To accept Congressional amici’s implicit principle we would have to hold that we will not hear any Executive challenge to the constitutionality of a legislative action, no matter how obviously unconstitutional, if we find that the Executive supports the policy embodied in that legislative act. Moreover, Congressional amiei’s emphasis on the policy views of the President ignores the fact that petitioners are private parties with an ímportant stake in the resolution of this issue. We also reject the contention that “the President and Congress have not yet had time to reach a solution or else settle into a stalemate.” Legislative review of independent agency rulemaking may be relatively new, but for sixty years there has been “a long tug of war between the Executive and Legislative Branches of the Federal Government” over the constitutionality of legislative review devices. Congressional amici themselves note that Congress has enacted over 200 such provisions since 1932. Legislative review provisions or similar measures have been attacked as unconstitutional by the administrations of Presidents Wilson, Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, and now, as exemplified by the position of the United States as amicus curiae, Reagan. A common form of objection has been to express reservations when signing bills into law, but Presidents have also vetoed bills on the ground that legislative veto provisions were unconstitutional. This historical record shows that the dispute is neither new nor temporary, but rather represents a clear disagreement between the political branches as to the meaning of the Constitution. A judicial resolution is therefore appropriate. C. The Necessary and Proper Clause Article I, Section 8, Clause 18 of the Constitution gives Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Since McCulloch v. Maryland, the Supreme Court has construed this authorization to permit Congress to exercise broad legislative powers not expressly enumerated in the Constitution. Congressional amici urge that under this principle the legislative veto must be upheld as a modern technique necessary for preserving the flexibility of congressional action. The Court of Claims in Atkins adopted this argument: In particular we note that the necessary and proper clause, which has sanctioned the massive delegation of legislative functions over the past century, provides a firm grounding for this veto. Congress plainly felt the need for this veto device, instead of relying solely on the power to override presidential recommendations by a full-fledged statute. In McCulloch’s phrases, Congress exercised “its best judgment” in the selection of this measure and sought to “accommodate its legislation to circumstances.” Congressional amici conclude: “The Necessary and Proper Clause is the Constitution’s expression that Congress must not be denied the flexible means needed to deal with exactly the kind of extraordinarily divisive issues resolved in the conference compromise that created § 202(c).” In our view, the Necessary and Proper Clause fails to advance the argument on behalf of the one-house veto. We do not understand either petitioners or the United States to contend that, in the absence of the asserted constitutional violations, the legislative veto provision would be unconstitutional because Congress does not have the authority to enact it. Rather, the claim is that however “necessary” Congress found this particular veto provision, it is not “proper” because it has other constitutional infirmities. The Necessary and Proper Clause does not override other provisions of the Constitution. McCulloch stated the test as follows: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” Plainly there is dispute whether the veto is “consistent with the letter and spirit of the Constitution,” and reference to the Necessary and Proper Clause will not provide the answer. As the Ninth Circuit noted in Chadha, the clause “authorizes Congress to ‘make all laws,’ not to exercise power in any way it deems convenient. That a power is clearly committed to Congress does not sustain an unconstitutional form in the exercise of the power.” D. The Constitutional Lawmaking Process Article I, Section 7, Clause 2 provides that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States.” Clause 3 of the same section similarly provides that “Every Order, Resolution, or Vote, to Which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States.” In each case the President may give either his approval, in which case the action of Congress becomes law, or his disapproval, in which case the action may not become law unless it is repassed by two-thirds of both the House and the Senate. These provisions set up the fundamental prerequisites to the enactment of federal laws: bicameral passage of the legislation, and presentation for approval or disapproval by the President. Congressional amici make three basic arguments in support of their contention that a legislative veto may be exercised without regard to these two requirements. First, they assert that the one-house veto is similar to other types of legislative action which historically have been undertaken by one house alone and which have not been presented to the President. Second, they assert that an agency rule subject to congressional veto is merely a proposal which can be rejected by either house of Congress in the same way that proposed legislation may be rejected by either house. Finally, they analyze the purposes of the bicameralism and presentation requirements, and conclude that these purposes do not mandate application of the requirements to the exercise of the one-house veto. We reject each of these arguments, and hold that congressional disapproval of final agency rules must be conducted in accordance with the requirements of Article I, Section 7. 1. Exceptions to the requirements of Article I, Section 7 Congressional amici emphasize that Article I, Section 7, Clause 3 provides that the presentation requirement applies to actions “to which the Concurrence of the Senate and House of Representatives may be necessary,” and assert that “[t]he term ‘may’ has a meaning here consistent with its ordinary and usual construction; some actions of the Congress may require concurrence and presentation, while others may not.” They cite “four categories of actions, having the force of law and affecting persons outside the Congress,” that historically have been conducted by only one house or have not been presented to the President, or both, and assert that this demonstrates that Article I, Section 7 should be flexibly construed. We agree that not every action taken by Congress automatically must receive the concurrence of both houses and be presented to the President for approval, but we reject the implication that these requirements are often and lightly ignored. On the contrary, the exceptions are clearly narrow and provide no support for finding Article I, Section 7 inapplicable to one-house consideration of an agency rule. a. Legislative initiation of agency investigations This category actually refers only to statutory authority which at one time permitted either house or the President to require the Federal Trade Commission (“FTC”) to investigate prescribed subjects. The critical difference between investigation and rulemaking was identified in Buckley v. Valeo. The Supreme Court declared that powers “of an investigative and informative nature” can be performed by a commission constituted of legislatively appointed officers, because the powers fall “in the same general category as those powers which Congress might delegate to one of its own committees.” Rulemaking, on the other hand, “represents the performance of a significant governmental duty exercised pursuant to a public law,” and thus cannot be conducted by such a commission. This FTC provision, therefore, tells nothing about whether Article I, Section 7 applies to a resolution disapproving a rule. A resolution enacted under this statute does not affect substantive law, as occurs when Congress vetoes an agency rule, but only instructs the FTC to conduct an investigation. Congress’ powers with regard to investigations are unique and irrelevant to its power to make law. b. Presidential plans for executive reorganization For much of this century, the President has been authorized to formulate executive reorganization plans which will take effect unless either house votes a resolution of disapproval. Since these provisions raise the same unresolved constitutional questions presented in this case, they cannot be viewed as support for the contention that Article I, Section 7 may be ignored. It is true that the Executive has generally supported the constitutionality of this basic statutory scheme, but only on limited and narrow grounds. While this apparent accommodation between the Executive and the Congress on use of the veto in reorganization statutes might be relevant to a challenge to those statutes, it does not bear on the veto’s constitutionality in rulemaking or other contexts, where the Executive has strongly opposed the one-house disapproval device. c. Presidential foreign affairs and national defense decisions Congress has often combined its delegation of foreign affairs authority to the Executive with provisions for disapproval of actions by concurrent resolution. As with the veto in reorganization statutes, the constitutionality of these provisions has not been resolved, and they therefore cannot serve as solid support for finding exceptions to Article I, Section 7. And, although a number of these schemes have been enacted, the Executive has never completely accepted their constitutionality. In any event, the foreign affairs veto presents unique problems since in that context there is the additional question whether Congress or the President or both have the inherent power to act. d. Congressional proposals for constitutional amendments The final category cited by Congressional amici is the only one in which there is a judicial decision holding that Article I, Section 7 did not entirely apply. In Hollingsworth v. Virginia the Supreme Court ruled that proposals for constitutional amendments, although requiring the concurrence of both houses, do not require presentation to the President. The Court did not explain this holding, but Justice Chase stated in a footnote to the Attorney General’s brief: “The negative of the president applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the constitution.” By not mentioning presidential participation, Article V, which sets forth the procedure for amending the Constitution, makes clear that proposals for constitutional amendments are congressional actions to which the presentation requirement does not apply. No constitutional provision does the same with regard to resolutions disapproving agency rules. The reasons for not presenting a proposed amendment to the President therefore are irrelevant. Thus, we agree with the main point of Congressional amici — that Article I, Section 7 does not apply rigidly to every single congressional activity — but we resist their implication that law or history supports a relaxed construction of the presentation and bicameralism requirements. Only with regard to constitutional amendments is there a Supreme Court ruling that the Presentment Clause does not apply, and that is clearly an exceptional case. The other alleged exceptions either do not represent substantive lawmaking, as with initiation of agency investigations, or represent limited areas of Executive-Legislative accommodation in the exercise of special powers, an accommodation that nonetheless remains clouded by constitutional controversy. The question remaining, then, is whether there is some reason why the decision of one house to veto a rule should be deemed different from the kind of legislative decisions the Constitution requires to be made by both houses and presented to the President. 2. Purposes of the lawmaking procedures a. Presentation to the President The primary reason for the presidential veto power conferred by Article I, Section 7 was to give the President a defensive weapon against legislative intrusions on the powers of the Executive. The importance of this concern was emphasized by Alexander Hamilton in The Federalist: The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive upon the acts of the legislative branches. Without the one or the other, the. former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense. This concern is reflected in the Convention debates, which centered largel