with whom Circuit Judges BROWNING, TANG, and TROTT join, concurring in part and dissenting in part;
My disagreement is not so much in what the majority opinion says as in what it de-dines to say. The majority announces a newly articulated analysis for district courts to apply in NLRA preliminary injunction cases, but then declines to apply that analysis to the case before it.
Article III limits our jurisdiction to cases and controversies. When we assume jurisdiction of a moot case because it is capable of repetition yet likely to evade review, we routinely decide the merits. See, e.g., Sacramento City Unified Sch. Dist. v. Rachel H, 14 F.3d 1398 (9th Cir.1994); see also Burlington Northern R. Co. v. B.M.W.E., 481 U.S. 429, 431, 107 S.Ct. 1841, 1843, 95 L.Ed.2d 381 (1987); Johansen ex rel. NLRB v. San Diego County Dist. Council of Carpenters, 745 F.2d 1289 (9th Cir.1984) (per curiam). If, as the majority announces, this ease is worthy of consideration because the dispute may recur between the parties, then this court has an obligation to explain how that dispute should be decided, and not merely render advisory standards for use by district courts in fixture cases.
Because I believe that under the court’s own newly articulated analysis, the district court would have no option other than to enter a preliminary injunction, I would affirm.
Under our prior law, that the district court correctly and ably applied, we used a two-prong test to- determine whether or not in-junctive relief under § 10(j) was appropriate. We instructed the district court to look first to see whether there was “reasonable cause,” i.e. whether there was a factual and legal basis for the injunction. Then, the district court was to determine whether the relief was “just and proper,” meaning that the *462district court was to determine whether the relief was appropriate in order to preserve the ability of the Board to grant relief in the future. See, e.g., Scott ex rel. NLRB v. El Farra Enters., Inc., 863 F.2d 670, 673-74 (9th Cir.1988); Miller v. California Pacific Medical Center, 788 F.Supp. 1112 (N.D.Cal. 1992).
In order to conform the analysis more closely to the statutory language, and to harmonize our law with the apparent developing trend in other circuits, the majority opinion collapses the two steps into one “just and proper” inquiry and explains that to determine whether an injunction is “just and proper,” the district court is to consider the “public interest” and weigh the likelihood of success against the degree of injury. Majority opinion at 458-459.
The majority recognizes that in § 10(j) cases, the public interest is to protect the remedial power of the Board, and to ensure that unfair labor practices do not succeed before the Board is able to adjudicate the charge. Majority opinion at 451, 460. The majority further recognizes that the stronger the Board’s legal and factual showing of probable success, the less the need for a showing of irreparable harm. Majority opinion at 459. Moreover, because the district court does not have jurisdiction to determine the merits of a claim under the NLRA, and because Congress has designated the Board and not the district court as the primary enforcer of labor relations matters, the district court owes great deference to both the Board’s understanding of the facts underlying its decision to apply for an injunction, and to the Board’s interpretation of the law. Majority opinion at 459.
Thus, under the majority’s analysis, where the Board is able to support its charge with a reasonable basis in fact and an arguable legal position, the Board’s threshold requirement is met; and if, on its showing of irreparable harm, the Board is able to establish that an injunction is necessary in order to preserve the remedial jurisdiction of the Board, then the injunction should be entered. If, rather than showing that it has a reasonable basis in law and fact for its position the Board is able to show that it is “likely to prevail on the merits,” the injunction should issue and no further showing of irreparable injury is required. Majority opinion at 459.
I have no substantive disagreement with this analysis. I object only to the majority’s failure to follow through with its opinion and apply its analysis to the case before us. The majority indicates that if the case were not moot, it would remand to the district court for reconsideration in light of its new standard. Majority opinion at 459-460. It does not indicate, however, what more the district court might consider that would justify a different result in this ease, given the district court’s findings that the Board was likely to succeed on the merits, and that the injunction was necessary to protect the Board’s remedial power and prevent the union’s destruction. See 788 F.Supp. at 1116.
Applying the majority analysis to this case, I find that the actual basis for the Board’s § 10(j) application is not disputed. The hospital admittedly refused to bargain with the nurses. 788 F.Supp. at 1114-15. The legal basis of the Board’s position, that hospitals should be treated like other employers who, following a merger are required to bargain with represented employees in a single facility, is also, at the very least, an arguably valid position. See 788 F.Supp. at 1115-16; N.L.R.B. v. Burns Internat'l Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). Accordingly, under the majority’s analysis, if the district court found that an injunction was necessary in order to preserve the ability of the Board to remedy any unfair labor practice at the conclusion of the enforcement proceedings, the district court was required to enter the injunction. That is precisely what the district court found and precisely what the district court did. It found that if a preliminary injunction were not entered, the nurses’ union would no longer represent employees in the single facility by the time the Board concluded its proceedings, and that an injunction for that reason should enter. As the court noted, “[i]f an injunction were not issued, after 45 years of representing the nurses at [the hospital,] CNA would cease to exist at the California campus.” 788 F.Supp. at 1116. The finding of irreparable harm is unassailable, *463and the district court injunction should be affirmed.
I therefore dissent from the majority’s decision to vacate the district court opinion without deciding that the district court properly entered the injunction.