Full opinion text
BAZELON, Senior Circuit Judge: Petitioners Paralyzed Veterans of America (PVA) and other organizations representing disabled citizens challenge final regulations of the Civil Aeronautics Board (CAB or Board) implementing section 504 of the Rehabilitation Act of 1973 (the Act) with respect to commercial airlines. The regulations were designed to prevent discrimination against handicapped persons in air transportation. The most important issue presented by this case concerns the scope of the CAB’s Amended Final Rule, which the Board has applied only to certain small airlines receiving direct federal subsidies. Petitioners maintain that the Board is required by law to apply its regulations to all commercial air carriers. We agree. As to the substance of those regulations, however, which petitioners challenge on account of the CAB’s definition of “qualified handicapped individual” and aspects of its 48-hour advance notice provision, we find respondents’ position more persuasive. Accordingly, we vacate the regulations in part and remand them in part. I. Background A. From Statute to Rulemaking Section 504 of the Rehabilitation Act of 1973 (section 504) provides: No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. As enacted, the statute did not provide for administrative implementation of section 504’s mandate; it was silent as to the exercise of regulatory authority. In 1976, however, the President issued Executive Order 11,914, requiring the Secretary of Health, Education and Welfare (HEW) to coordinate the implementation and enforcement of section 504 by all federal agencies. In 1977, prodded by an order of our district court, HEW did adopt regulations implementing section 504 as it applied to those programs and activities for which HEW was itself a source of federal financial assistance. Finally, on January 13, 1978, the Secretary of HEW issued guidelines directing other federal agencies to begin their own rulemaking proceedings within ninety days and to issue final regulations no later than one hundred thirty-five days following the close of the comment periods for the proposed rules. The Civil Aeronautics Board commenced its rulemaking proceedings on June 6, 1979. Because of the complexities of the issues in this case, both jurisdictional and substantive, it will be helpful to summarize those proceedings in considerable detail. In its Notice of Proposed Rulemaking the Board proposed “new rules to prohibit unlawful discrimination against disabled travelers and to implement section 504 of the Rehabilitation Act of 1973.” Although the CAB noted that “[tjhis proceeding began at the Board’s initiative and with a petition for rulemaking filed by the National Federation of the Blind,” petitioners observe, and respondents do not dispute, that “the Board’s initiative” was prompted at least in part by pressure from HEW Secretary Joseph Califano. In its discussion of the proposed new rules’ “Introduction and Background,” however, the Board’s position was a strong one: A review of the problems that have been presented to the Board regarding difficulties encountered by handicapped persons in air transportation demonstrates not only a need for regulations under section 504 of the Rehabilitation Act, but also a significant need for the handicapped to receive adequate, nondiscriminatory service in air transportation in general____ Therefore, we have decided that the scope of this rulemaking should include any discrimination against passengers and prospective passengers on the basis of a handicapping condition, and the availability of adequate, reasonable service to handicapped persons. We believe that the burden of showing that airline service to handicapped persons cannot be provided should be on the air carrier. Also included in the Board’s “Introduction and Background” discussion were several important references to the agency’s statutory authority. First, the CAB wished to “emphasize that the handicapped are protected by the adequacy of service and antidiscrimination provisions of section 404 of the Federal Aviation Act [49 U.S.C. § 1374], which are applicable to all air carriers, whether or not receiving Federal financial assistance.” It relied upon this fact as a partial justification for declining to propose any regulation of airline employment practices, noting that other agencies, such as the Department of Labor or the Justice Department, would have “the experience and skill necessary to do the job effectively.” Moreover, the CAB reasoned: The Board extends direct Federal subsidies only to a small number of air carriers, so that the reach of our section 504 jurisdiction would not have a significant effect on industry employment. While we can prevent discrimination in air transportation under section 404 of the Federal Aviation Act without clear section 504 jurisdiction, the same is not true of employment. The Board would have no authority to regulate employment practices of unsubsidized carriers unless those practices somehow caused discrimination in transportation. The CAB’s initial efforts to implement section 504 were further constrained by its decision “not to propose to require structural modifications of aircraft at this time” on the ground of its having insufficient information regarding alternatives, costs, and benefits. Nevertheless, the Board proposed, and invited public comment upon, regulations that would apply “to all certificated carriers and air taxis [commuter carriers] in their operations with aircraft of more than 30-seat passenger capacity.” Conceding that “some aspects of the rules would merely make explicit what is already implicitly required by section 404,” and that they might prove too burdensome or impractical for certain small carriers, the Board went on to suggest regulations that it believed strike a reasonable balance among the interest of handicapped persons in the greatest possible convenience and freedom of choice in their use of air transportation services, the legitimate requirements of air safety, and the economic reality that costs incurred by carriers will be passed on to consumers in the form of higher air fares, or to the handicapped in the form of special charges. B. The Proposed Rules: Substance and Scope The regulations developed by the CAB were tripartite. Subpart A — “General Provisions” — prohibited “discrimination in air transportation against qualified handicapped persons.” It stated that the CAB’s purpose in adding a new Part 382— “Nondiscrimination on the Basis of Handicap” — to Chapter II of Title 14, Code of Federal Regulations was to ensure: (a) That handicapped persons receive reasonable access to commercial air transportation, (b) that certain specific practices are prohibited, and (c) that certain specific changes in service are made. The part is designed to ensure that transportation of handicapped persons is integrated into the overall air transportation system as much as possible. Section 382.4 of Subpart A — a single sentence titled “Prohibition against discrimination” — provided: A carrier shall not, on the basis of handicap, exclude any qualified handicapped persons from participation in, deny them the benefits of, or otherwise subject them to discrimination in the provision of air transportation or related services. Section 382.5 of Subpart A prohibited air carriers from providing “different or separate” transportation services to qualified handicapped persons, or from denying any services available to other passengers, unless such actions were “reasonably necessary.” Subpart A left the specific words “reasonably necessary” undefined, but did, in section 382.3, define the terms “Carrier,” “Conditions for air transportation,” “Facility,” “Handicapped person,” and “Qualified handicapped person,” each of which assumes considerable significance in the controversy before us. Subpart B — “Specific Requirements”— provided detailed guidelines to be followed by each carrier with regard to accessibility of facilities and services, the availability of information, refusal of service, guide dogs, the use of Braille, and service to be provided to incontinent passengers and to passengers unable to feed themselves. Subpart B also specifically prohibited carriers from conditioning the carriage of handicapped passengers or their baggage, in-eluding wheelchairs, on any waiver of liability for personal injury or property damage and forbade “any limitation of liability that is stricter than the limitations applied to all passengers and baggage.” That section of Subpart B with which the instant case is most concerned, however, and which serves as an important illustration of the specificity and detail of the regulations at issue, was section 382.14, “Availability of services and equipment,” providing in pertinent part as follows: (a) Carriers shall ensure the availability of: (1) Necessary life-support systems, such as oxygen, for on-board use; and (2) Personnel and equipment to assist in boarding, moving to restrooms, deplaning, baggage handling, and making ground connections, including ground wheelchairs, aisle chairs and, if necessary, mechanical boarding lifts. (b) Carriers shall not establish advance notice requirements for the provision of special assistance unless that assistance is extensive. Carriers may establish reasonable advance notice requirements of up to 48 hours for the provision of extensive special assistance. For the purposes of this paragraph, carrier-provided wheelchairs, oxygen for on-board use, and mechanical boarding lifts will be considered extensive special assistance. Subpart C of the regulations initially proposed by the Board — “Compliance”—mandated that each carrier provide formal assurances to the CAB “that it will comply with this part” and specified the means for so doing. Each carrier, for example, was required to “maintain an employees’ manual containing company rules for accommodating handicapped passengers,” to formally designate “at least one person ... to coordinate its efforts to comply with this part,” and not only to “[e]valuate its current policies and practices and effects for compliance” but also to “[establish a system for periodically reviewing and updating the evaluation.” The requisite “evaluation and modification of practices” was to include “a reasonable effort to consult with and obtain the views of handicapped persons and experts on handicapping conditions.” In addition, under Subpart C, every carrier was required, within 180 days after the effective date of the proposed regulations, to “adopt a plan that provides for the prompt and equitable resolution of complaints alleging any action prohibited by this part____” Such a complaint might be filed by any person who believed “that he or she has been a victim of discriminatory action” by a carrier. Finally, section 382.26 of Subpart C, Procedures for noncompliance,” authorized the Director of the Bureau of Consumer Protection to institute enforcement proceedings. If, after notice and opportunity for a hearing, such proceedings “[fjound a failure by the carrier to comply with a requirement of this part,” the Board was empowered to “order suspension or termination of, or refuse to grant or continue Federal financial assistance” to the offending carrier, or to “use any other means authorized by law to ensure compliance.” In response to its request for comments on its proposed regulations, the CAB received a large number of suggestions and criticisms from airlines, airline trade associations, flight crew unions, government agencies, disabled individuals and organizations representing handicapped persons, including petitioners. C. The Final Rules: Comment, Compromise, and Constriction In general, the airlines objected to the adoption of the proposed regulations, arguing that such rules were inconsistent with recent congressional initiatives aimed at reducing regulation of the air transport industry and that they were unduly burdensome and duplicative. At least one commenting airline contended “that unjust discrimination on the basis of handicap does not exist” and that the proposed rulemaking of the Board was not only “unnecessary” but “would cause confusion and ambiguous interpretation with the undesired result of diminished special service to handicapped persons.” While representatives of commuter airlines could see some merit in the proposed regulations as they applied to the large certificated carriers, they concluded that “if applied to commuter air carriers, [the rules] would result in a substantial burden on such carriers. The mere recitation of the detail and scope of the proposed requirements is staggering.” The larger airlines, through the comments of the Air Transport Association and several individual companies, contended not only that the proposed regulations were “redundant, confusing, and, in some cases, conflicting,” but that the CAB was without jurisdiction to apply them to any airlines but those few (generally smaller ones) that received direct money subsidies from the Board. This jurisdictional contention was vigorously opposed by groups representing handicapped citizens, all of which supported the CAB’s initial assertion of rule-making authority over every certificated carrier. As to the scope of rulemaking, these groups criticized the agency, if at all, for its tentative proposal to exempt from its regulations those small commuter or air taxi opertors using aircraft of fewer than thirty seats. Although the substantial submission of the Disability Rights Center and eight other groups did address the legal issue of the proper reach of section 504 — arguing that all airlines, whether subsidized or hot, received “federal financial assistance” in the form of development grants to airports, the federal air traffic control system, exclusive operating certificates, and special investment tax credits— the vast majority of comments were directed to the substance of the rules themselves. In this regard the rulemaking proceeding below appears to have been an exemplary one. The record contains many examples of difficult and sensitive issues being painstakingly resolved, of diverse viewpoints being conscientiously considered. For example, the Board redrafted its rules to eliminate any reference to medical certificates, agreeing with commenters representing the disabled who argued that terms like “reasonable belief” and “compelling evidence” were too vague, that travelers were the best judges of their own medical status and ability to fly as far as their own risk was concerned, and that the requirement might discriminate in practice between those in whom a handicap was apparent and those in whom it was not. In cases where risks to other passengers are potentially involved, however, such as where “the likelihood that aggravation of the passenger’s condition will cause an in-flight emergency or unscheduled landing,” the Board concluded “that airlines must make determinations of flight worthiness.” This was to be accomplished not on the basis of a required medical certificate from “passengers’ doctors [who, the airlines contended] are generally inexpert in aerospace medicine, and, therefore, unqualified to determine whether the passenger can fly” but rather “on the basis of standards elearly related to flight safety, applied in a nondiscriminatory manner by personnel who are assigned specific responsibility for this task.” In general the Board’s response to the comments it received upon specific provisions of the proposed rules resulted in its granting enhanced discretion to the regulated carriers. For example, a proposed rule requiring Braille information cards was dropped in favor of a section that, according to the Board, “now clearly states the airlines’ obligation to provide both emergency and important non-emergency information to blind or deaf passengers, but allows more flexibility in choosing methods for providing it.” Similarly, in dismissing the objection of several commentators to the use of the phrase “reasonably accessible” in sections 382.1 and 382.-11 of the proposed rules rather than of the words “readily accessible” (the standard of the HHS guidelines in 14 C.F.R. § 85.57(a)), the Board concluded that its original language reflected “the accessibility standard most appropriate to the airline industry.” In such areas of evident concern to handicapped persons as the storage of blind travelers’ canes and in-flight wheelchair policy, the Board’s decisionmaking resulted in Final Rules that appear to have successfully balanced the felt necessities of the handicapped with the requirements of the airlines for flexibility and the need for deference to the expertise of agencies that are charged more directly with ensuring the safety of air transportation. Nevertheless, the Board’s determinations regarding two specific aspects of the Final Rules have been challenged by petitioners in this case. The first involves the CAB’s definition, in its Amended Final Rule, of “Qualified Handicapped Person,” to which petitioners object on two grounds: that it “unlawfully allow[s] airlines to selectively impose requirements on disabled passengers which are not required of all other passengers” and that it lacks “objective guidelines and criteria to ensure that airlines do not arbitrarily impose unnecessary conditions on disabled passengers,” thus rendering the definition “vague and confusing for both airline personnel and disabled travelers.” Petitioners’ second specific objection is to section 382.15(c) of the Final Rule, which allows airlines to require all passengers who will need “extensive special assistance” to notify the airline 48 hours in advance of their flight. This provision, petitioners contend, is “especially arbitrary” and “overly broad” and “inconsistent with Section 504” because it would permit airlines “to circumvent their Section 504 responsibilities.” A discussion of the administrative background of these disputed sections of the Final Rule, and of the arguments advanced for and against their validity by the parties to this case, is best deferred until a related and more fundamental question has been resolved: What airlines, in fact, have section 504 “responsibilities”? The question arises because the CAB, having engaged in the extensive and apparently scrupulous rulemaking procedure only partially summarized in the foregoing paragraphs and notes, decided that the rules it was making could, as a matter of law, be applied only to a small fraction of commercial airlines actually engaged in transporting handicapped travelers. This interpretation of the extent of its regulatory authority represented a substantial constriction of the CAB’s original position as expressed in its 1979 Notice of Proposed Rulemaking. There the Board had interpreted the scope of its rulemaking authority broadly, emphasizing that such regulation of air transportation could be based not only upon section 504 of the Rehabilitation Act but also upon the adequacy of service and antidiscrimination provisions of section 404 of the Federal Aviation Act, 49 U.S.C. § 1374. To the extent to which the Board expressed any doubt as to the reach of its regulatory authority or the wisdom of applying the proposed rules to all carriers, it was hesitant only with regard to the employment practices of airline companies, the imposition of structural requirements for aircraft, and the possibility that regulations reasonably applied to most established airlines and large aircraft might prove too burdensome or impractical for certain small carriers. By the time it issued its Final Rule in 1982, however, the Board was evidently hesitant to apply any specific requirements at all. Although it reaffirmed its reliance upon section 504 and upon section 404 of the Federal Aviation Act as “the requisite authority” for applying Subpart A of the rule — the general antidiscrimination provision — to all carriers, it construed its statutory power to regulate discriminatory practices as extending no further: The specific requirements in Subparts B and C of this rule ... will apply only to those carriers receiving subsidy from the Board under sections 406 or 419 of the Act, in recognition of the limited jurisdictional basis of section 504. Those carriers subject only to the general provisions of Subpart A should look to the specific requirements of Subpart B as guidance for meeting their general obligation not to discriminate. In promulgating its Final Rule, the Board reasoned that because section 504 prohibits discrimination “under any program or activity receiving Federal financial assistance,” it was powerless, in implementing the statute, to “reach” any program or activity that was not receiving such assistance. “In our view,” the Board announced, “only subsidy paid under either sections 406 or 419 of the Federal Aviation Act qualifies” as federal financial assistance. In consequence, as petitioners note, the specific provisions of the rules designed to protect handicapped travelers apply only to those carriers receiving subsidies for the transportation of mail, and to several small local and regional air carriers directly subsidized with federal funds for providing essential air-transportation to small communities As a practical matter, it is undisputed that in 1983 the CAB did not require any airline with regularly scheduled flights across the United States or overseas to comply with Subparts B or C of the regulations. Petitioners argue, in general, that the CAB’s interpretation of its rulemaking authority under section 504 is excessively narrow, and that its construction of the scope of the Rehabilitation Act of 1973 is inconsistent with the intent of Congress, the regulations of other agencies, and controlling legal precedent. In particular, in addition to their challenge of two specific provisions of the rules, petitioners urge on several grounds that the agency erred as a matter of law in failing to apply its rules to all commercial airlines, “because these airlines receive federal financial assistance sufficient to bring them within the scope of section 504 of the Rehabilitation Act.” It is this last but most fundamental issue which, in our discussion of the considerable complexities involved in this petition for review, shall be first. II. Discussion A. The Scope of Section 50b: Defining “Federal Financial Assistance” in Context The Rehabilitation Act of 1973 established “a comprehensive federal program aimed at improving the lot of the handicapped.” Section 504 of the Act represented an effort, closely modeled upon civil rights legislation already in force, to offer handicapped individuals an opportunity to pursue employment, educational, and recreational goals free of the additional handicap of discrimination against them. Aware that with section 504 Congress intended “to eradicate the longstanding prejudice against the handicapped,” courts have duly noted the extent to which the language of the section corresponds to that of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, frequently applying the case law developed in those areas to the resolution of problems arising under the Rehabilitation Act. In our review of the rulemaking proceeding below, and particularly in our analysis of what constitutes sufficient federal “financial assistance” to bring a “program or activity” within the reach of section 504, we shall do the same. We emphasize at the outset, however, the extent to which the issue of discrimination against the handicapped, particularly in the complex realm of commercial air transportation, is sui generis. Accordingly, our holding today is a narrow one which must be understood in the unique context of two intersecting considerations. First, we are interpreting a statute that was explicitly addressed not merely to enhancing employment and ending discrimination but to expanding the mobility of handicapped persons, to reducing barriers to transportation. Second, we are concerned with the appropriate regulation of an industry that is an integral part of a “program in activity” of a very special kind. In fact, the analysis of what constitutes “federal financial assistance” in this case, and the related question of how properly to apply section 504 to the airline industry, turn in significant part upon the specific and “special” ways in which, whether directly subsidized or not, all air carriers are inextricably intertwined with the federally-funded “program or activity” of commercial air transportation. Even at its most doctrinal, this is a case, above all, about access to airplanes and the Rehabilitation Act of 1973. 1. Exclusive Operating Certificates In its rulemaking proceeding the CAB properly disposed of the argument made by petitioners and others that all certificated air carriers should be subject to section 504 because they receive federal financial assistance in the form of “operating certificates giving exclusive domain over valuable air routes.” While an operating certificate may be of some value, it no longer gives airlines exclusive domain over routes, see section 1601(a)(1)(C) of the Act. It therefore presents a situation similar to Gottfried v. Federal Communications Commission, 655 F.2d 297 (D.C.Cir.1981), wher it was held that broadcast licenses do not count as financial assistance within the meaning of section 504. As appropriate as the Board’s reliance upon our holding in Gottfried was, however, that case merits a brief discussion here, not only because it represents an important earlier construction of the statute, but also because its holding must be understood in its appropriate — and somewhat limited — context. In Gottfried this court remanded to the FCC a challenge to the license renewal of a public television station on the ground that the Commission had failed to inquire specifically into the station’s efforts to meet the programming needs of the hearing impaired. Its obligation to do so, the court noted, was founded upon section 504 of the Rehabilitation Act, to which the public station was bound by virtue of its receipt of federal financial assistance. The court expressly held, however, that Congress did not “intend broadcast licenses to count as ‘financial assistance’ within the meaning of section 504.” Accordingly, it declined to remand a parallel challenge to the license renewal of seven commercial stations to which, it concluded, section. 504 did not apply. In so doing, this court in Gottfried reviewed the “legislative heritage” of section 504 and of the Civil Rights Act of 1964 upon which it was modeled and discovered “no reference to the FCC or to any other government program involving issuance of federal licenses.” Moreover, we noted that in its original regulations issued for the guidance of all federal agencies, HEW “never explicitly classified broadcast licenses as financial assistance,” even though not only federal “funds” but “services of Federal personnel” and “real and personal property or any interest in or use of such personal property” and other less obviously “financial” assistance was so included. Finally, we observed that the Justice Department, which had recently been designated by Executive Order as the agency responsible for coordinating federal efforts to implement section 504, had specifically held that “ ‘[t]he term “Federal financial assistance” ... does not include licenses, for example, since licenses are not Federal assistance grants, contracts, loans, or cooperative agreements.’ ” In relying upon Gottfried to justify its rejection of the argument that operating certificates granted to carriers constitute “federal financial assistance” within the meaning of section 504, therefore, the Board was correct. The license-specific nature of Gottfried’s holding and rationale, however, limits its applicability when considering other types of federal financial assistance. 2. Favorable Tax Treatment Petitioners note that “[f]rom its inception, the commercial aviation industry has received substantial direct and indirect assistance from the federal government,” and that “[m]ost of the major airlines” received direct subsidies “in their early years.” Currently, 'they argue, such federal financial assistance takes the form not only of money subsidies under certain sections of the Federal Aviation Act but also of special investment tax credits made available to “certain railroads and airlines” by the Internal Revenue Code, 26 U.S.C. § 46(a)(8) (1976 & Supp. V 1980). Respondents, by contrast, find it “inconceivable, that Congress “intended to place nondiscrimination obligations on every commercial enterprise enjoying some form of favorable tax treatment.” Petitioners find support for their position in McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972) (three-judge court), which held “that assistance provided through the .tax system is within the scope of Title VI of the 1964 Civil Rights Act,” since [i]n the absence of strong legislative history to the contrary, the plain purpose of the statute is controlling. Here that purpose is clearly to eliminate discrimination in programs or. activities benefitting from federal financial assistance. Distinctions as to the method of distribution of federal funds or their equivalent seem beside the point____ The three-judge court in McGlotten ruled that the tax exemption provided fraternal orders by section 501(c)(8) of the Internal Revenue Code, “[sjince it is available only to particular groups ... operates in fact as a subsidy in favor of the particular activities these groups are pursuing. It thus falls within the coverage of the Civil Rights Act.” By direct and legitimate analogy, petitioners suggest, the investment tax credit available to railroads and airlines in particular by section 46(a)(8) constitutes sufficient federal financial assistance to airlines so “subsidized” to trigger coverage by section 504. In its rulemaking proceeding the CAB failed to address the tax subsidy argument. To this court, respondents argue that McGlotten is petitioners’ “sole authority,” that it “has had no case law progeny,” that its discussion of Title VI and “federal financial assistance” was merely “dictum” in a case that was really about the state action doctrine and the equal protection clause, and that in its recent decisions holding that tax exemptions and tax deductibility do indeed constitute “a form of subsidy that is adminsitered through the tax system,” Regan v. Taxation with Representation of Washington, 461 U.S. 540, 544, 103 S.Ct. 1997, 2000, 76 L.Ed.2d 129 (1983), the Supreme Court “conspicuously failed to invoke” McGlotten. None of these arguments is convincing. Both in Regan and Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), the Supreme Court affirmed McGlotten’s fundamental approach. More important, we think, is the possibility that Congress did not intend, by granting a limited tax incentive to a particular industry or group, to thereby encompass every such industry or group, or, for that matter, individual within some ever-widening and potentially almost limitless definition of “federal financial assistance.” It is true that the industry-specific nature of the accelerated depreciation allowance permitted airline property may obviate that danger in this case. But it is also true that the exemptions and deductions at issue in McGlotten, Bob Jones, and Regan were of a much more fundamental nature than the modest incentive to capital expenditures to which petitioners point here. To find that the government could force an airline to comply with a federal antidiscrimination mandate solely because it takes advantage of section 46(a)(8) tax credits would be to find the government impotent to compel such compliance if any airline should elect to forego such credits. If Congress did intend handicapped citizens to have access to air transportation and to apply the nondiscrimination principles of section 504 to all carriers, we would violate that intent by holding that a carrier could avoid compliance through its accountant, or that Congress would be giving a green light to discrimination if it ever chose to enhance federal revenues in this deficit-plagued era by closing tax loopholes or simplifying the Code. 3. The National Air Traffic Control System If interpreting every de minimis tax incentive as sufficient “federal financial assistance” to trigger the coverage of federal antidiscrimination statutes would be over-broad in its consequences and reach, petitioners’ argument that the government’s expenditure of some two billion dollars annually to provide airlines with a national system of air traffic control seems, by contrast, appropriately narrow and specific. This program employs, on a twenty-four hour basis, highly-trained air traffic management personnel who monitor and control takeoffs, landings, and en route flights of civil and military aircraft in order to assure safe and expeditious air transportation. By directly financing the operation of twenty-five control centers, more than four hundred terminal control facilities, and additional flight service stations, as well as by administering its flight standards and medical fitness programs, petitioners argue, the federal government provides financial assistance that is “absolutely critical to the operation of the airlines.” It cannot be seriously disputed that the safe and efficient operation of commercial air transportation depends in great measure (if not, as petitioners assert, “entirely”) upon “the proper functioning of the national air traffic control system.” One can scarcely imagine a modern airline representing to its customers that a regularly scheduled flight will leave at a time certain and arrive reliably at its destination if this “essential service” provided by the FAA did not exist. Moreover, this crucial assistance may reasonably be considered “financial.” Definitions of “federal financial assistance” issued by both the Department of Health and Human Services and the Department of Justice state explicitly that the term encompasses any grant, loan, contract, ... or any other arrangement by which the agency provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of Federal personnel; or (3) Real and personal property or any , interest in or use of such property ____ Consequently, petitioners’ argument that the federal air traffic control system is an “arrangement” that “provides or otherwise makes available assistance in the form of ... services of Federal personnel” leads reasonably to the conclusion that the system does indeed constitute federal financial assistance to all commercial air carriers. It follows, therefore, that any and all carriers making use of the federal air traffic control system should be subject to any regulations promulgated under section 504. Respondents attack this argument on several grounds. First, they contend that “regulatory history and common sense” make it clear that the current “services of Federal personnel” language really means “the loan or detail of Federal personnel to carry out functions which private (i.e., airline) employees would otherwise have to perform, e.g. fly airplanes.” We are not persuaded, however, that the language of the Justice Department’s implementing regulations should be taken to signify anything less than the plain meaning of the words themselves. “As a general matter, courts eschew narrow interpretations of remedial statutes. Instead, remedial statutes are normally accorded broad construction in order to effectuate their purpose.” As the Senate report on the 1974 amendments to the Rehabilitation Act explained, “section 504 was enacted to prevent discrimination against all handicapped individuals ... in relation to Federal assistance in employment, housing, transportation, education, health services, or any other Federally-aided programs.” To that end, section 504 and the civil rights statutes with which it shares a common language and heritage must “be liberally construed in order that their beneficent objectives may be realized to the fullest extent possible.” Respondents’ more substantial line of attack reiterates a point first articulated by the Board in justifying its Final Rule below: “It is the position of the FAA, with which we concur, that its air traffic control services are not financial assistance to airlines. Rather, they are services provided to the public generally to ensure flight safety.” The federal air traffic control and safety programs, respondents suggest to this court, must be considered in the general category of “public goods.” They are the goods and services from which all citizens and businesses benefit____ Thus, for example, the government may assure clean air through a variety of means, Federally financed or operated. But the recipient of the benefit cannot be precisely located, and no one enjoys an exclusive benefit. The air controllers help to assure “safe skies”; this “assists” airlines more directly than it assists other enterprises; yet it also assists all enterprises that use the airlines or fly private planes in the course of their business. It also protects those on the ground from plane crashes. It does not, however, amount to “Federal financial assistance.” If, as PVA seems to assume, Congress had wanted to cover every enterprise benefitting from a federal program, it would have said so, but it did not. It is true that in important respects the provision of air traffic controllers might be analogized to the provision of highway patrolmen or traffic signs or signal; federal funding of such programs would not be likely to be considered the sort of “Federal financial assistance” sufficient to bring every private trucking business or other enterprise that used the highways within the scope of section 504. On the other hand, respondents concede that the air controller program “assists” airlines more directly and extensively and specifically than other enterprises. Moreover, as petitioners observe, it would be absurd to exempt a federally-funded local transit authority or school system from compliance with section 504 on the ground that public transportation benefits passengers as well as transit systems and, like public education and safe air travel, it is a “public good.” The fact is that the air traffic control system is indispensable to the very existence of modern commercial aviation, and that if it were not provided by the federal program now in place, it would have to be provided, and paid for, by the airlines themselves. It is at this juncture, however, that our analysis must be informed by the Supreme Court’s resolution of a related problem in a case that has been decided since we heard oral argument in this matter. In Grove City College v. Bell, — U.S. —, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), the Court construed the language of Title IX’s prohibition against sex discrimination in any “education program or activity” that is “receiving Federal financial assistance” in a manner that compels us to focus less on the mode of assistance than on the “program or activity” being assisted. In particular, although the Court warned that nothing in Title IX justified “making the application of the nondiscrimination principle dependent on the manner in which a program or activity receives federal assistance,” it emphasized as well that an agency’s authority to regulate under Title IX was limited by “the program specific nature of the statute.” Thus, even if the “economic ripple effects” of federal financial aid to a college’s students resulted in additional funds for the institution’s general operating budget, a plurality of the Court held, per Justice White, that only “the College’s own financial aid program ... may properly be regulated under Title IX.” The implications of the Grove City analysis for the case before us are not completely clear. To the extent to which petitioners argue that a national air traffic control system would have to be provided at the airlines’ own expense if it were not provided by the federal government (i.e., that this federal program has “economic ripple effects” that make additional funds available for other airline operations), the Grove City plurality would appear to be unsympathetic. And if the federal air traffic control system is the “program or activity” which is deemed to receive “federal financial assistance,” then the program-specific mandate of Grove City would imply that only that particular system — its personnel practices and physical facilities, for example — could be regulated under section 504. If, on the other hand, the “program or activity” at issue is deemed to be that of commercial air transportation as engaged in by the air carriers, and if the air traffic system is deemed — via its personnel and facilities — to be the “federal financial assistance” provided to that program, then any “program specificity” problem with petitioners’ argument is avoided. Such a problem is not before us in the instant case, however, because we need not reach it to hold that the CAB erred as a matter of law in failing to apply its section 504 regulations to all commercial air carriers. We base this holding upon the federal government’s funding of airports and “airways,” upon the necessary and inextricable Mntegration of these facilities with all commercial air carriers and, above all, upon the clear intent of Congress in passing the Rehabilitation Act of 1973 and the effort of appropriate agencies to effectuate the mandate of section 504 in the unique context of commercial air transportation. 4. Federally Assisted Airports The Airport and Airway Development Act of 1970, 49 U.S.C. § 1714, as amended, authorized the Secretary of Transportation “to make grants for airport development” in order “to bring about, in conformity with the national airport system plan, the establishment of a nationwide system of public airports adequate to meet the present and future needs of civil aeronautics____” To this end Congress established the Airport and Airway Trust Fund, monies from which are used to construct, acquire, lease and improve facilities and equipment used in civil aviation, currently in the amount of several billion dollars annually. Grants received by airports are not “earmarked” but are “obtained through the use of a single project application to cover all airport improvement projects contained in the airport’s annual expenditure program.” Typical capital projects undertaken with the substantial federal financial assistance so obtained have been airport land acquisition, runway construction, passenger terminals, airport lighting, airport access and service roads, electronic and visual approach aids, taxiway construction, obstruction removal, and fire/rescue equipment and buildings. It is undisputed that this extensive federal financial assistance to airports subjects them to the nondiscrimination mandate of the federal civil rights laws, including section 504 of the Rehabilitation Act of 1973. The critical question then becomes whether, as respondents contend, the scope of section 504 “extends to the threshold of the planes themselves, but not beyond.” Such a result is required, respondents argue, by virtue of “longstanding administrative interpretation,” Supreme Court precedent, and a case in our own district court which “has squarely held” that the indirect assistance provided airlines using federally-funded airports did not trigger the coverage of section 504. We consider, and reject, each of these arguments in turn. First, the longstanding and, until this proceeding, consistent interpretation of federal civil rights statutes has supported the position not of respondents but of PVA. For example, in applying its Title VI regulations to federally assisted airports, the Department of Transportation explicitly included restaurants, snack bars, gift shops, ticket counters, baggage handlers, car rental agencies, limousines and taxis franchised by the airport sponsor, insurance underwriters, and other businesses catering to the public at the airport. If these businesses are construed as receiving federal financial assistance by virtue of federal aid to airports, it is nonsensical to exclude the air carriers themselves, which surely are businesses “catering to the public at the airport.” Indeed, in its own section 504 rulemaking, DOT explained that its regulations apply, inter alia, to ticket counters, boarding devices, baggage check-in and retrieval, and teletypewriters, “all of which are owned and operated by the airlines at most airports.” DOT’s decision in 1979 not to extend its own rules to air carriers’ in-flight activities obviously was a result of the CAB’s assertion of such authority at that time, and of DOT’s commendable effort to avoid redundant, overlapping regulations: Following publication of [DOT’s] NPRM, representatives of the DOT, FAA, HEW and the Civil Aeronautics Board (CAB) met to discuss the respective legal authority and responsibilities for improving the accessibility of air travel to handicapped persons. Following this meeting, the CAB determined that it had statutory authority to issue regulations governing air transportation of handicapped persons ____ Action by the CAB ... would ensure the uniform provision of services and equipment by the airlines, needed to accomplish accessibility to air travel for handicapped persons---- Of course, the CAB’s initial interpretation of its rulemaking authority under section 504 was consistent with this expectation. Its Notice of Proposed Rulemaking assumed that all certificated carriers would be covered, and invited comment specifically only as to whether small, commuter carriers with planes of fewer than thirty seats should be exempted. This initial position of the CAB was in fact consistent with its own “longstanding administrative interpretation” of its Title VI regulations as covering programs “including” — but not limited to — those receiving direct money subsidies, and as applying not only to “money paid” but to “other federal financial assistance extended.” The Board’s sudden reversal in this regard was contrary not only to the interpretation of other agencies in this context, but to its own. A more substantial argument advanced by respondents is based upon two recent Supreme Court cases, one of which was sub judice at the time the instant petition for review was heard. In North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982), the Court concluded “that an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of §§ 901 and 902.” Thus, respondents argue, “[wjhile an airline may utilize a federally-funded program, ie., airport operations, it is not a federally funded program itself by virtue of the airport’s receipt of aid.” North Haven’s emphasis upon “program specificity” was, as we have noted, reaffirmed by the Court’s more recent decision in Grove City College v. Bell. But it is also true that in its North Haven opinion the Court expressly did “not undertake to define ‘program’ ” and that in Grove City the plurality emphasized not only that the student financial aid at issue was “sui generis” but that the intent of Congress in passing Title IX was central to its analysis. In considering what we believe must also be termed the sui generis nature of commercial air transportation, as well as the intent of Congress in passing the Rehabilitation Act of 1973, combined with the postenactment administrative and legislative construction of section 504, we find that the regulations promulgated in this case must be applied to all air carriers using federally-funded airports in their “program or activity” of providing commercial air transportation. Airports and airlines are inextricably intertwined. The indissoluble nexus between them is the provision of commercial air transportation. Although airports may lease space to gift shops and airlines may publish inflight magazines or own a chain of resort hotels, when it comes to the “program or activity” of providing air transportation to the traveling public, the two entities are so functionally integrated that they become one. While it may be the case, as respondents urge, that the airline as a corporate entity does not become a federally-assisted “program” by virtue of its use of federally-assisted airports, its “program or activity” of providing commercial air transportation certainly does. Thus, section 504 may or may not reach the practices of a hotel owned and operated by an airline company; but it certainly must reach, in our view, the treatment afforded a passenger who boards that company’s aircraft at, deplanes to, and reaches his destination safely and efficiently only because of, a federally-funded airport. Just as the plurality in Grove City distinguished the college’s financial aid program from other programs within the institution, an airline’s commercial aviation program, its activity in actually carrying passengers from one place to another, may be distinguished from its other programs or activities. Respondents attempt to avoid this holding, finally, by pointing to a case in our district court which “squarely held” that to “hold that commercial airlines fall within section 504 merely because of assistance provided to airports would expand improperly the accepted proposition that section 504 is limited to direct recipients of Federal funds.” The Board quoted in full and explicitly relied upon this language from Angel v. Pan American World Airways, Inc. We reject it on at least three grounds, and declare Angel squarely overruled. First, even if “airlines” on a company-wide basis are not covered by section 504, we believe their programs and activities providing commercial air transportation are, as noted above. Second, Grove City directly undermines any notion that coverage of federal antidiscrimination statutes is in any way — much less as an “accepted proposition” — “limited to direct recipients of Federal funds.” As the Court held unambiguously in Grove City: Nothing ... suggests that Congress elevated form over substance by making the application of the nondiscrimination principle dependent on the manner in which a program or activity receives federal assistance. There is no basis in the statute for the view that only institutions that themselves apply for federal aid or receive checks directly from the federal government are subject to regulation. Third, Angel depends for its holding upon an unjustifiably broad reading of Gottfried v. FCC, a case which, as we have discussed in some detail, is license-specific in its holding and rationale, and which in the consideration of federal financial assistance to airports and air transportation is thoroughly inapposite. 5. Additional Considerations: The Special Administrative and Legislative Context Our holding today that section 504 of the Rehabilitation Act of 1973 applies to all commercial air carriers and that the CAB erred in restricting the application of its section 504 regulations to those few small carriers receiving direct money subsidies is buttressed by several unique features of this case. These include the particular concern evidenced by Congress for the right of handicapped persons to travel and to have the greatest possible access to employment opportunities, the regulatory inconsistencies manifested by the Board in the proceedings below, and the recent reaffirmation by Congress of its commitment in this area through its passage of the Civil Aeronautics Board Sunset Act of 1984. Our starting point in this case must be not only the statutory language, which in the case of section 504 must be accorded “the scope that its origins dictate, ... a sweep as broad as its language,” but the statute as a whole. So concerned was the Rehabilitation Act of 1973 with transportation in particular that it “established within the Federal Government the Architectural and Transportation Barriers Compliance Board” composed of, among others appointed by the President, the heads of the Departments of Health, Education, and Welfare, Transportation, Housing and Urban Development, Labor, Interior, Defense, and of the General Services Administration, Postal Service, and Veterans Administration. This Board [hereinafter ATBCB] was charged particularly with the task of reducing “architectural, transportation, and attitudinal barriers” in, inter alia, “public transportation (including air, water, and surface transportation whether interstate, foreign, intrastate or local).” Consequently, it was not surprising that a 1974 Senate report should list transportation as one of five itemized areas to which section 504 was meant to apply. Congress was well aware in passing the 1973 Act, so much of which was aimed at vocational rehabilitation, that “even [if] the maximum employment opportunities for the handicapped [were] fully created, they could not be filled without the ability of handicapped individuals to get to their jobs.” Obviously, today more than ever, air transportation is a necessary element in securing and performing many jobs. So even if transportation per se had not been singled out by Congress in section 502 of the 1973 Act, and even if the Act’s administrative creation, the ATBCB, had not testified in favor of giving the broadest possible reading to section 504 in the proceedings below, any fair reading of the Act reveals that maximizing employment opportunities — and therefore minimizing barriers to transportation — for the disabled goes to its very heart. As the comments of the Act’s “own” agency put it to the CAB: “Accessible transportation is often the key to a disabled person’s employment, education, recreation, and access to social services. Without the right of access to transportation, all other civil rights are meaningless.” We find additional support for our holding today in what might best be termed the need for regulatory consistency and rationality. The CAB’s discussion of its section 504 authority, and particularly of its rather sudden reversal of position between 1979 and 1982, was inadequate, vague and contradictory. Not only was its reliance on Angel (and that case’s misreading of Gottfried) misplaced, but even on its own terms the Board’s analysis was turgid. Claiming to reject the “restrictive reading of our jurisdiction put forth by the airlines,” the Board insisted that it was “adopting an approach ... that represents a compromise between applying the rule to all carriers and having no rule at all.” The form this “compromise” took, of course, was to apply only the general anti-discrimination provisions (Subpart A) to all airlines, while applying the specific, substantive provisions (Subparts B and C) to subsidized carriers only, claiming without any citation to authority that “[tjhose carriers subject only to the general provisions of Subpart A should look to the specific requirements of Subpart B as guidance for meeting their general obligation not to discriminate.” Respondents are unclear, as the Board was, about the source of the CAB’s conclusion that non-subsidized carriers “should look to” Subpart B. They point to the duty of every air carrier to provide “adequate service” under section 404(a) of the Federal Aviation Act as supplying the “requisite authority to apply general provisions” to non-subsidized carriers. But they do not —and, we believe, cannot — explain why section 404(a), if it authorizes the application of Subpart A, will not extend to Sub-parts B and C, which give the general provisions substance and teeth. They do not — and, we believe, cannot — explain what “look to” means, or why it is that, as respondents contend in their brief, “non-subsidized certificated carriers could not ignore the specific requirements applicable to the subsidized carriers.” In fact, they could do precisely that if the CAB’s view of the scope of section 504 in this case were affirmed by this court. In the proceeding below, the CAB rightly rejected the airlines’ assertion that its proposed rules “merely duplicate existing FAA regulations.” It correctly characterized the primary purpose of the FAA rules as ensuring passenger safety, reasonably deferred to the FAA’s inflight safety expertise where it was appropriate to do so, and noted that its own aim was “not merely to ensure that the disabled are carried safely, but to ensure that they face no unreasonable, nonsafety-related obstacles to travel. To that end, this rule covers issues ... that are not reached by the FAA rules.” The Board’s admirable sensitivity to the work of other agencies and the need for consistency in removing unreasonable obstacles to travel, however, did not extend far enough. It was aware that regulations of the Department of Transportation already required all certificated carriers to comply with section 504’s mandate in the operation of, inter alia, ticket counters, boarding devices, and baggage check-in and retrieval. It was aware, indeed, that DOT had relied upon the CAB’s earlier assertion of section 504 authority and was now urging the Board to exercise it. Nevertheless, the CAB refused to recognize the full measure of its own authority, leading to the absurd result that handicapped persons are protected from discrimination in air transportation only up to the door of the aircraft — that is, so long as they are not being transported in the air. Our holding today obviates any such nonsensical outcome and vindicates the clear congressional purpose. In addition, restoring the scope of section 504 rulemaking authority to the dimensions originally contemplated by the CAB will vindicate that agency’s hard and conscientious work in fashioning substantive requirements through these proceedings. The nondiscrimination rules will now actually apply to a meaningful number of handicapped travelers. The specific regulations fashioned with great sensitivity in order to minimize expense and regulatory burden will no longer fall — not only most heavily but exclusively — upon those small (subsidized) airlines least able to carry the load. And certain otherwise anomalous aspects of the rules, which appear to have been drafted sometimes with all carriers in mind, sometimes with only the small, subsidized carriers in mind, can now be rendered more uniform and consistent when, on remand, the regulations are in part repromulgated and applied consistently with this opinion. Finally, we note that our holding as to the scope of section 504 in the unique context of commercial air transportation is consistent with the recent action of Congress in its Civil Aeronautics Board Sunset Act of 1984. That statute provides in its section 14, “Access for Handicapped Persons,” that the Secretary of Transportation, when exercising authority previously the CAB’s, shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973, prior to issuing or amending any order, rule, regulation or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped persons. Of course, to mandate a consultation with the ATBCB is not to mandate an acceptance of its recommendations, which in this case were to require not only a broad reading of section 504 but also affirmative action in the form of the structural modification of aircraft. Still, this recent demonstration of the continuing concer