dissenting:
This case poses the question whether an air carrier’s continuing consent is a prerequisite to DOT approval, pursuant to § 401(h) of the Federal Aviation Act, of an application to transfer the carrier’s route certificate to another airline. Pan Am and Northwest Airlines argue that it is; the DOT and Delta argue that because Pan Am and Delta once applied for the transfer the DOT can effect it regardless of Pan Am’s having repudiated its deal with Delta while the application was pending before the agency. Because the DOT’s interpretation of § 401(h) is unreasonable — both textually and in light of the Congress’s purpose to rely upon market forces in the airline industry — I would reverse the agency’s decision to transfer Pan Am’s Detroit-London route certificate to Delta over Pan Am’s objection.
Section 401(h) is written in terms of the transferor carrier’s need for “approval”: “No certificate may be transferred [i.e., by the carrier] unless such transfer is approved by the [DOT] as being consistent with the public interest.” 49 U.S.CA.pp. § 1371(h) (Supp. Ill 1991). This clearly implies that the transferring air carrier must itself seek to transfer the route certificate. Indeed, every party to this proceeding agrees that the plain meaning of the statute requires the consent of the air carrier to the transfer of its route certificate. No other meaning makes sense, and in fact the DOT evaluates a transfer only upon the application of the carrier holding the certificate.
That consent is required at some point, therefore, is not at issue; whether a carrier can withdraw its consent before the agency has approved its application is. Neither the text of the statute nor its legislative history indicates that the Congress focused specifically upon that issue — probably because the answer is too obvious to think that it would ever be controversial. As a result, we are on firmer ground considering this question, as the Court does, pursuant to the second step of Chevron.
Under Chevron step II we defer to an agency’s statutory interpretation only if it is reasonable in light of the language and the purpose of the statute. Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). See also Continental Air Lines, Inc. v. DOT, 843 F.2d 1444, 1449 (D.C.Cir.1988). The DOT’s interpretation of the approval requirement, and of the concept of consent necessarily entailed therein, is unreasonable on both counts. For the terms of § 401(h), the limited authority it gives the agency to review a transfer application, and the market principles animating the statute all require a common sense, not a contrived, understanding of the consent necessitated by § 401(h).
First, nothing in the text of § 401(h) suggests any exception to the requirement that the transferor consent to the transfer that the agency would “approve.” The one sentence that is § 401(h) refers only to the ground upon which the DOT can deny a transfer application; there is no ground in § 401(h) upon which it can require a carrier to transfer its route certificate. That is the work of § 401(g), 49 U.S.CApp. § 1371(g) (“The Board ... upon its own initiative ... may alter, amend, modify, or suspend any such certificate”).
Second, the DOT takes an appropriately limited view of its authority to disapprove a transfer application: “[It will] generally approve route transfers unless they conflict with important international aviation policy objectives or are otherwise inconsistent with the public interest.” Joint Application of Delta Air Lines, Inc. and Pan American *1124World Airways, Inc., Order 92-4-33 (DOT Apr. 14, 1992); accord Joint Application of Delta Air Lines, Inc. and Pan American World Airways, Inc., Order 91-10-33 (DOT Oct. 11, 1991); Joint Application of Delta Air Lines, Inc. and Eastern Air Lines, Inc., Order 91-10-34 (DOT Sept. 24, 1991); Joint Application of American Airlines, Inc. and Eastern Air Lines, Inc., Order 91-8-1 (DOT Aug. 2, 1991). The DOT has repeatedly emphasized its limited role, reminding air carriers that since deregulation the agency does not review transfer applications in order to select the “best” air carrier for a particular route. See, e.g., Joint Application of American Airlines, Inc. and Eastern Air Lines, Inc., Order 91-8-1 (DOT Aug. 2, 1991) (“The issue is not whether United might provide ‘better’ service in these markets, as it contends it will, but whether the proposed transfer of Eastern’s authority to USAir is consistent with the public interest”). It is inconsistent with the DOT’s limited and essentially passive role, in which it applies permissive criteria to transactions initiated by private parties, for that agency to insist upon completion of a transfer to which the transferor objects.
Moreover, until now the agency has not regarded the disputed contractual obligations of potential transfer parties as part of its “public interest” inquiry under § 401(h). See, e.g., Joint Application of Delta Air Lines, Inc. and Pan American World Airways, Inc., Order 91-10-33 (DOT Oct. 11, 1991) (refusing to consider underlying contract obligations as part of the public interest inquiry because contract rights are to be adjudicated in bankruptcy court). In fact, the agency’s normal procedure is to evaluate every transfer application filed, even if dupli-cative, for consistency with the public interest and then to let the transferor carrier determine the final disposition of its route certificate. See Joint Application of American Airlines, Inc. and Eastern Air Lines, Inc., Order 91-8-1 (DOT Aug. 2, 1991) (“Having tentatively concluded that [one transfer application] is consistent with the public interest, we would normally proceed to evaluate the merits of the [second application], ... [T]he seller would then be free to choose from among [sic] the two approved [applications]”).
Finally, the market principles underlying the statute preclude the strained textual interpretation by which the DOT could “approve” a transfer to which the transferor does not consent. In past decisions the DOT has clearly acknowledged, indeed proclaimed, that § 401(h) must be interpreted and applied to facilitate a free market in air carrier routes. Thus, when determining whether an application is consistent with the public interest, the DOT recognizes that it must “begin from the proposition that each [transfer] application is jointly made by transferring and acquiring carriers responding to economic influences in the aviation marketplace.” Joint Application of American Airlines, Inc. and Eastern Air Lines, Inc., Order 91-8-1 (DOT Aug. 2, 1991).
Obviously, that proposition is not tenable when the transferring carrier no longer supports the application in which it had once joined. A marketplace is not static; the great virtue of the market is its ability to respond to changing conditions. Far from promoting the market in route certificates, however, the agency’s interpretation of the statute to preclude a carrier from withdrawing its transfer application — quite apart from any contractual obligation to which the carrier may have agreed — frustrates the ability of market participants to respond to changed circumstances. As far as the DOT is concerned, therefore, at least until now the carrier’s final choice of a transferee has been independent of, and irrelevant to, the transfer application process (provided of course that each potential transferor meets the public interest test).
Even if the DOT were not required to permit Pan Am to withdraw its application, the agency’s new-found concern with itself preserving the contract rights of the parties — what might be called amateur night at the common law, complete with ‘reversionary interests’ — is strikingly inconsistent with its own prior assertion that it performs its approval function under § 401(h) without regard to the parties’ contractual commitments; to quote the DOT, the bankruptcy court is “fully capable of protecting” the parties’ contract rights. Joint Application of Delta Air Lines, Inc. and Pan American World Airways, Inc., Order 91-10-33 (DOT *1125Oct. 11,1991). Indeed, the bankruptcy court has exclusive jurisdiction to determine a bankrupt carrier’s contractual liability. See 11 U.S.C. § 502(b). If the DOT were truly agnostic with respect to Pan Am’s contract obligations, as it even now claims it was, it would at most have simply determined whether either of the transfer applications to which Pan Am consented is inconsistent with the public interest and if not left the final decision — and its consequences as a matter of contract law — to Pan Am and the bankruptcy court.
The court today upholds the DOT’s shenanigans as “reasonable in light of the public interest in conservation of administrative resources,” ct. op. at 1119 — an interest esteemed by all, I am sure, but not one served by the agency’s decision. Hence the series of irrelevant afterthoughts to be found in the court’s footnote 4 at p. 1120. The court first tries to draw sustenance from the statutory injunction for DOT to make decisions “promptly,” as though it were authority for the agency to make decisions willy-nilly, even when they are no longer wanted. Nor is “administrative efficiency” served by insisting upon approving an application after one of the applicants has abandoned it; on the contrary, respecting the applicant’s withdrawal would avoid the consumption of further administrative resources, whereas forging ahead consumes additional resources but does nothing to retrieve resources already sunk in the approval process. (As for the possibility of “encourag[ing] future applicants to abuse the administrative process by consuming the Department’s resources and then dropping their applications at the final stage of the game,” I am simply at a loss to make any sense whatsoever of the court’s concern.) Finally, the court elevates to an importance equal to administrative efficiency the completely irrelevant “fact that Pan Am is in bankruptcy”; but there is no reason — at least the court offers none — either to think that the bankruptcy court will not try to maximize the value of Pan Am’s assets or that the carrier’s management was not trying to do that when it repudiated its deal with Delta.
Nor do the three agency orders cited by the Court at page 1120 provide any justification for allowing “the public interest in conservation of administrative resources” to trump the Congress’s decision to rely upon the market to allocate air routes. The market principle at the core of I 401(h) dictates that the DOT limit its involvement in route certificate transfers in a way that does not apply to other DOT functions under the statute. Not surprisingly, therefore, the agency orders cited by the court all involved actions under other provisions of the Federal Aviation Act. Indeed, two of those DOT decisions concerned the fitness of an applicant to provide air service. See Michigan Peninsula Airways Fitness Investigation, Order 84-8-92 (CAB Aug. 22, 1984) (questioning applicant’s safety); Dominion Intercontinental Airlines, Inc. Fitness Investigation, Order 86-1-75 (DOT Jan. 31, 1986) (questioning applicant’s managerial competence). In each case the DOT understandably refused to allow the applicant to withdraw, after the record had been developed and the issues fully argued, “in order to avoid the res judicata effect of an adverse decision.” Dominion Intercontinental Airlines, Inc. Fitness Investigation, above, at 2 n. 1; see also Michigan Peninsula Airways Fitness Investigation, above, at 2. In contrast, an air carrier that withdraws a § 401(h) transfer application does nothing to frustrate the DOT’s administration of the Act. It is only trying to sell its asset to a different buyer at a better price, which is how a well-functioning market in route authority efficiently allocates resources, and just what the Congress had in mind.
The third case, Aries Air Cargo Int'l, Inc. and Overseas Nat’l Airways, Inc., CAB Order 73-4-104 (April 25, 1973), involved DOT review of a lease agreement under § 408, which authorizes the agency to condition or modify a proposed transaction that would otherwise “lessen competition, ... tend to create a monopoly, or ... be in restraint of trade.” 49 U.S.CApp. § 1378(b)(1). It is not entirely clear why, when one of the parties claimed to have terminated the lease, the DOT went on to opine that the lease was not anticompetitive; it made no mention of administrative efficiency. In any event, the agency did not go on to require the parties to perform under the lease agreement, so its decision is hardly analogous to the one presently before us.
For the foregoing reasons, I find the DOT’s interpretation of § 401(h) to be unrea*1126sonable, and I would reverse the agency s decision to transfer Pan Am’s Detroit-London route certificate to Delta. I respectfully dissent.