dissenting:
Congress provided in the Railway Labor Act that if a “dispute shall arise among a carrier’s employees as to who are the representatives of such employees ..., it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify ... the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute....” Railway Labor Act, § 2 Ninth, 45 U.S.C. § 152 Ninth (emphasis added). From this explicit duty, the court infers not merely the absence of any duty to investigate representation disputes sua sponte (a clearly valid reading), but the absence of any Board authority ever to do so. Accordingly the court invalidates procedures that the Board established to address conflicting representational claims arising from mergers of carriers under the Board’s jurisdiction. Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Railroad Industry, 17 NMB 44 (1989) (the “Merger Procedures”).
With admirable candor, the court explicitly discards the model of highly deferential review laid down by the Supreme Court for Board decisions, see Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943), and Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and adopts the view that the Administrative Procedure Act overturns the Switchmen’sILeedom approach and substitutes conventional review of agency action— at least where the Board’s action takes the form of a rulemaking. See Concurring Op. at 671-73; Maj.Op. at 659 n. 1 (adopting view of concurring opinion). This distinction between rulemaking and adjudication evidently drives the outcome, for the court explicitly invalidates the Board’s rules, Maj.Op. at 671, *674and merely remands its adjudication applying those rules, id.
In the alternative, the majority characterizes the issue — the propriety of the Board’s exercising its investigatory and certification power without a request by an employee or union — as jurisdictional, and suggests that this feature may render Switchmen's/Leedom completely inapplicable. Maj.Op. at 663-664.
Finally, the court purports to apply the Switchmen’s/Leedom mode of analysis, and declares the Board’s rule a “gross violation” of the Act, Maj.Op. at 669, though in fact giving the Board no more deference — and probably less — than is prescribed by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for conventional review of agency decisions.
Neither of the court’s two theories for displacing Switchmen’s/Leedom — the APA or the characterization of the issue as jurisdictional — appears convincing. Considered with the exceptional deference that those cases require, the Merger Procedures easily pass muster. I dissent.
1. The APA
Any idea that the APA completely sweeps Switchmen’s aside is quite inconsistent with the language of that decision and of the APA, with the history of the APA, and with post-APA decisions. The Supreme Court framed the Switchmen’s decision as one of statutory interpretation, finding that Congress had precluded judicial review except in narrowly and expressly prescribed instances. “Congress intended to go no further in its use of the processes of adjudication and litigation than the express provisions of the Act indicate.” 320 U.S. at 302, 64 S.Ct. at 98. Not surprisingly, we have found that the APA did nothing to change that result, noting that § 10 of the APA is expressly inapplicable where “statutes preclude judicial review”, 6 U.S.C. § 701(a)(1). American Air Export & Import Co. v. O’Neill, 221 F.2d 829, 830 (D.C.Cir.1954); but cf. Air Line Dispatchers Ass’n v. NMB, 189 F.2d 685, 689 (D.C.Cir.1951). The Attorney General’s Manual on the Administrative Procedure Act (1947), the APA’s primary legislative history, cites Switchmen’s as a sample “interpretation of a statute [ ] intended to preclude judicial review although the statute does not expressly so provide”, id. at 94, thus locating NMB decisions — at least to the degree covered by Switchmen’s — squarely in the category classified as unreviewable under the APA. And since enactment of the APA the Court itself has summarized Switchmen’s in virtually the language of the APA exception, describing it as a case holding “that the Act precluded review of the Board’s certification of a collective bargaining representative under § 2, Ninth.” Brotherhood of Railway & S.S. Clerks v. Association for the Benefit of Non-Contract Employees (“Railway Clerks ”), 380 U.S. 650, 658, 85 S.Ct. 1192, 1196, 14 L.Ed.2d 133 (1965).
The concurring opinion (and the majority) would evidently distinguish between adjudicatory orders of certification and Board rules resolving certification issues. See Concurring Op. at 672-674. Certainly the APA invites no such distinction, providing generally for review of “agency action”, 5 U.S.C. § 702, subject of course to the explicit exceptions of § 701. And while critics of Switch-men’s have noted that the decision itself left open whether a court would affirmatively enforce a Board order without considering its legality, see Hart and Wechsler’s The Federal Courts and the Federal System 409 (Paul M. Bator, et al. eds., 3d ed. 1988), I can see no basis for holding Switchmen’s inapplicable to rules.1 It is true, as Judge Randolph points out, that Switchmen’s in part rested on an inferred congressional judgment *675against any “dragging out of the controversy into other tribunals of law”, id., 320 U.S. at 305, 64 S.Ct. at 99, possibly arising out of congressional concern for quick dispatch of immediate representation controversies, but the Court’s prime reliance was on the statutory structure. See id. at 305-06, 64 S.Ct. at 99-100. And in Railway Clerks the Court spoke of Congress’s allocation of power between the Board and the judiciary in terms completely divorced from any immediate exigencies: “Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case.” 380 U.S. at 662, 85 S.Ct. at 1199.
Further, to the extent that the Switch-men’s Court was influenced by perceptions of a congressional desire to resolve explosive problems quickly, that concern seems applicable here. The Merger Procedures attempt to deal efficiently with disputes before they escalate. Stonewalling by either side over rules of the game — sure to develop and be manifested as requests for stays of adjudications hinging on the outcome of judicial review of such rules — will undermine the dispatch evidently sought by Congress. Also, as pointed out by Airline Industrial Relations Conference and Regional Airline Association as amici:
[Invalidation of the merger procedures would likely place a cloud over the status of the certifications, voluntary recognitions, and revocation of certifications resulting in [previously decided applications], and could result in unnecessary litigation and disrupt the stable post-merger collective bargaining relationships now in place.
The destabilizing impact of the loss of the merger procedures would be even more significant in the future....
[Before the Merger Procedures, carrier decisions made without NMB clarification] frequently resulted in unresolved disputes, litigation and potential disruptions of airline operations.
Amicus Br. at 10-11.
Besides, the rule/adjudication distinction sets up perverse incentives for the Board, denying it the benefit of Switchmen’s only when it gives widespread notice and opportunity to comment, and seeks to crystallize its views in a formal rule. After years of scholarly exhortations to agencies to make more use of rulemaking, because of that method’s capacity to acquaint the agency with a wide range of viewpoints and to produce clear guidance for regulated parties,2 it seems anomalous for this court to load the dice against NMB rulemaking. I see no basis for a rule-making exception to Switchmen’s.
2. Jurisdictional Issues
The court alternatively addresses, although ultimately declines to rely on, Railway Labor’s argument that the interpretive issue before us is “jurisdictional” and therefore is outside the constraints of Switch-men’s/Leedom. Maj.Op. at 663-64. In doing so it draws on a line of eases in our circuit granting review where the Board declines to exercise jurisdiction. See, e.g., Air Line Dispatchers Ass’n, 189 F.2d at 689. Finding the distinction between shortfalls and excesses of jurisdiction unsupportable, the court hints that it might extend the exception to any issue deemed jurisdictional.
I have no quarrel at all with the majority’s rejection of the distinction between excesses and shortfalls of jurisdiction. But to review de novo any Board determination that the reviewing court classifies as jurisdictional is *676the wrong way out.3 While courts commonly classify issues as relating to the “jurisdiction” of Article III courts, and make consequences turn on the classification, the categorization is typically self-evident because of language in the controlling documents, see, e.g., Art. Ill, § 2 (“The judicial power shall extend to....”); 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States”); 28 U.S.C. § 1291 (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts_”). While Congress elsewhere in the Railway Labor Act expressly framed its mandate in jurisdictional terms, see 45 U.S.C. § 155 First (entitled “Disputes within jurisdiction of Mediation Board”), the section here in dispute, § 2 Ninth, uses no such label, and the majority offers no interpretive principles for identifying provisions as jurisdictional. Indeed, the majority acknowledges the hazards in making such classifications. See Maj. Op. at 664.
In the absence of a manageable line between jurisdictional and other issues, non-deference for “jurisdictional” issues is just a tag for the court’s conclusion. “[Tjhere is no discernible line between an agency’s exceeding its [jurisdictional] authority and an agency’s exceeding authorized application of its authority. To exceed authorized application is to exceed authority.” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381, 108 S.Ct. 2428, 2444, 101 L.Ed.2d 322 (1988) (Scalia J., concurring). See also Louis L. Jaffe, Judicial Control of Administrative Action 356-57 (1965). Thus, while appellants’ brief seeks to distinguish between “cases concerning whether the NMB erroneously exercised its functions under Section 2 Ninth” and ones where “the issue is whether the NMB has the statutory authority to perform those functions at all”, Opening Br. at 26, the purported dichotomy falsely assumes that an agency has “authority” to act erroneously in exercising its functions.
Presumably out of reluctance to use an undefinable category, the Supreme Court has not withheld Chevron deference in the face of claims that the issue was jurisdictional. See Reiter v. Cooper, — U.S. -, -, 113 S.Ct. 1213, 1221, 122 L.Ed.2d 604 (1993) (applying Chevron to ICC’s determination that statute did not grant it “initial jurisdiction ... with respect to the award of reparations”); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844-45, 106 S.Ct. 3245, 3253-54, 92 L.Ed.2d 675 (1986) (applying Chevron to scope of the Commission’s jurisdiction over counterclaims); NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 830 n. 7, 104 S.Ct. 1505, 1510 n. 7, 79 L.Ed.2d 839 (1984) (pre-Chevron decision expressly rejecting proposition that a different level of deference guides review of “a jurisdictional or legal question concerning the coverage of’ the National Labor Relations Act). Nor have we. See Railway Labor Executives’ Ass’n v. United States, 987 F.2d 806, 813 (D.C.Cir.1993) (applying Chevron to issue whether provision of Interstate Commerce Act “is an independent source of authority” to modify collective bargaining agreements in a specific class of cases); Texas Utilities Electric Co. v. Federal Communications Commission, 997 F.2d 925 (D.C.Cir.1993). In Texas Utilities we upheld the FCC’s authority, under a statute granting it power over “attachment by a cable television system” to utility poles, to regulate attachments for cables carrying nonvideo services, expressly formulating the issue as whether such cables fell “within the FCC’s regulatory jurisdiction.” Id. at 936. That issue seems no different in character from the question presented in Switchmen’s itself — whether the NMB had the authority to divide a “craft or class”.
Indeed, any issue may readily be characterized as jurisdictional merely by manipulating the level of generality at which it is framed. Thus, one could ask in Switchmen’s whether the Board had authority to issue certifications dividing a “craft or class” into subsets based on the area in which specific members worked (which the Board had de*677nied), cf. 320 U.S. at 309, 64 S.Ct. at 101 (Reed, J., dissenting), or one could ask whether the Board misapplied its authority by declining to make such divisions. Similarly, the issue here can be characterized as whether the Board had jurisdiction to investigate labor disputes within the railroad industry in the absence of a request by one of the parties, or as whether it misapplied its undoubted jurisdiction to investigate labor disputes in the industry. Such pliable labels should not control the scope of review.
3. Application of Switchmen’s/Leedom
It remains to apply the principles laid down in Switchmen’s and qualified in Lee-dora. In Switchmen’s the Court held the Board’s certifications of labor representatives completely unreviewable — at least at the instance of a party seeking to set aside the certification (leaving open how courts should address efforts to invoke judicial equity powers to affirmatively enforce such a certificate, see 320 U.S. at 307, 64 S.Ct. at 100). As we have already seen, the issue of the meaning of “craft or class” could have been characterized as jurisdictional, and the Court expressly viewed it as a purely legal question, saying that the statute gave the Board the authority to interpret the words of the statute except in those instances where Congress had specifically called for judicial review. Id. at 305-06, 64 S.Ct. at 99-100. Largely from the presence of express provisions for judicial review, the Court concluded “if Congress had desired to implicate the federal judiciary and to place on the federal courts the burden of having the final say on any aspect of the problem [apart from those explicitly covered], it would have made its desire plain”. Id. at 303, 64 S.Ct. at 98 (emphasis added). The Court later summarized Switchmen’s as involving “a question of statutory construction” and as holding that “it was for the Board, not the Courts, finally to resolve such questions”. Railway Clerks, 380 U.S. at 658-59, 85 S.Ct. at 1197.
The Switchmen’s Court adopted this view in the face of a dissent starkly pointing out the hazards. Justice Reed observed that the Court had authorized the NMB to determine “the statutory limits of its own powers as well”, Switchmen’s, 320 U.S. at 321, 64 S.Ct. at 107 (Reed, J., dissenting), and that such a deferential rule “risk[ed] administrative action beyond or contrary to the legislative will”, id. at 312, 64 S.Ct. at 103. Perhaps moved by such concerns, the Court in Leedora v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), created a narrow exception to prevent the Board from flouting a clear, nondiseretionary duty under the statute. At issue was an order of the National Labor Relations Board in certification proceedings under § 9 of the NLRA. The statute stated “the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and [non-professional employees] unless a majority of such professional employees vote for inclusion in such unit”. Id. at 185, 79 S.Ct. at 182. The NLRB conceded that “in commingling professional with nonprofessional employees ... it had acted in excess of its powers”, id. at 187, 79 S.Ct. at 183, and the Court found judicial relief available. Evidently not regarding even conceded legal error as a sufficient ground for judicial interference, the Court emphasized that the Board order was “contrary to a specific prohibition in the Act”, id. at 188, 79 S.Ct. at 184 (emphasis added) and was “an attempted exercise of power that had been specifically withheld ”, id. at 189, 79 S.Ct. at 184. It stressed how patent a violation the Board had committed, describing the statutory provision at issue as “clear,” “mandatory,” and “definite”. Id. at 188, 189, 79 S.Ct. at 184.
In this circuit we have used a number of formulae to characterize the power of review established by Leedom. We have, for example, read it to permit review only in instances of “gross violation of the statute”. International Bhd. of Teamsters v. Brotherhood of Ry., Airline & S.S. Clerks, 402 F.2d 196, 205 (D.C.Cir.1968). And we have read the Switchmen’s/Leedom combination as mandating a form of judicial review that is “one of the narrowest known to the law”. International Ass’n of Machinists v. TWA 839 F.2d 809, 811, amended in technical part, 848 F.2d 232 (D.C.Cir.1988). A reviewing court may only “peek at the merits” and may interfere only if the peek reveals an error “as obvious *678on the face of the papers as the violation of specific statutory language”. International Bhd. of Teamsters, 402 F.2d at 205. The insistence on specific statutory language accords with the Supreme Court’s parallel statement in Railway Clerks that without a “specific requirement” in the Act itself, it is not sufficient to rely on “terms of policy and broad generalities as to what the Railway Labor Act should provide”. 380 U.S. at 671, 85 S.Ct. at 1203.
Review under Switchmen's/Leedom would appear to be at least as deferential to the agency as if review under Chevron stopped after the application of so-called “prong one”. In that phase of review, we determine “whether Congress has directly spoken to the precise question at issue”, Chevron, 467 U.S. at 842, 104 S.Ct. at 2781, or has “unambiguously expressed” its intent, id. at 843, 104 S.Ct. at 2781. If it has done so, the congressional intent of course controls despite what the agency may think. If Congress has been ambiguous on the issue, however, we go on to consider whether the agency’s interpretation is a “reasonable” one, and uphold any such reasonable view, id. at 844, 104 S.Ct. at 2782, even though there may be another reasonable interpretation that we would adopt if resolving it de novo, id. at 843 n. 11, 104 S.Ct. at 2782 n. 11.
Unless an agency decision would flunk the first prong of the Chevron test, i.e., violate the “unambiguously expressed” intent of Congress, I do not see how it can be invalid under the emphatically restrictive form of review permitted by Leedom as an exception to Switchmen’s.
A “peek at the merits” reveals no “clear” error in the Board’s reading of the statute. The pertinent section is worded as follows:
If any dispute shall arise among a carrier’s employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier.
Railway Labor Act, § 2 Ninth, 45 U.S.C. § 152 Ninth (emphasis added).
The Board’s Merger Procedures provide that railroad carriers that have merged “may invoke the Board’s services for a determination of the post-merger status of any NMB certifications on the applicable properties.” See Merger Procedures, 17 NMB at 54. They also allow the Board to act on its own initiative. See id. at 50-51. Investigation and certification — sorting out which union represents which employees when the employees dispute such matter — are incontestably what § 2 Ninth authorizes the Board to do. “[S]o long as the Board is acting with the purpose of ‘finding] the fact’ as to who is the employees’ representative, the courts are deprived of jurisdiction to review Board decisions.” America West Airlines v. NMB, 986 F.2d 1252, 1256 (9th Cir.1993).
While the appellants argue that the Board is undertaking to resolve matters that are not representation disputes between unions, the Merger Procedures suggest nothing of the sort. The Procedures assert a power to investigate only whether the merged carriers will operate or are operating “as a single transportation system”, Merger Procedures, 17 NMB at 51, which would necessitate a single representative for each “craft or class” within the system. See Alia Royal Jordanian Airlines/IBT, 10 NMB 389, 390 (1983); Seaboard System Railroad-Clinchfield Line, 11 NMB 217, 224 (1984) (citing the First Annual Report of the National Mediation Board (1935)). If two or more unions claim to represent the same craft or class, they would seem to be in dispute, both as the term is used in ordinary language and as it is used in § 2 Ninth. Nothing in the Procedures asserts an intention to proceed in the absence of such a dispute, i.e., unless more than one union claims to represent a single craft or class, or (conceivably) workers in a single craft or class identify more than one union as their representative. The Procedures call explicitly for comments by incumbent repre*679sentatives, 17 NMB at 54, who will presumably reveal their harmony when it exists. In the adjudication before us, the Burlington Northern case, where unions made conflicting representational claims, the Board resolved them and then stopped. Findings Upon Investigation, 18 NMB 240, 260 (1991). Thus the Procedures themselves and the application before us manifest an intent merely to resolve union or employee disputes as to who represents which employees and to certify the results.
While § 2 Ninth imposes on the Board a specific duty to act under some circumstances (a request by a party), it says nothing “clear” or “explicit” or “specific” or “definite” about capacity to act when representation disputes within the railroad industry come to its attention by other means. The Board does not assert that carriers are “parties” entitled to “request” such investigation or certification; the Supreme Court in Railway Clerks previously upheld the Board’s rejection of the carriers’ claim of a statutory entitlement to participate as parties. 380 U.S. at 666-68, 85 S.Ct. at 1200-02. The Court held that the Act did not “require that [the carrier] be made a party to whatever procedure the Board uses to define the scope of the electorate”, id. at 666, 85 S.Ct. at 1200 (emphasis added), but went on to say that “[wjhether and to what extent carriers will be permitted to present their views on craft or class questions is a matter that the Act leaves solely in the discretion of the Board”, id. at 666-67, 85 S.Ct. at 1201. In the Merger Procedures the Board has sought to exercise that discretion.
The Court in Leedom stressed a principle behind the Switchmen’s exception — the protection of specific rights granted in legislation. Leedom, 358 U.S. at 190-91, 79 S.Ct. at 184-85. Here, the employees have shown no specific “right” on which the Merger Procedures might be thought to encroach. Indeed, insofar as stultification of the agency will preserve multiple representation of workers in a single craft in a single system (as indeed it will), it will preserve violations of the system-wide representation rule adopted by the Board under § 2 Fourth. See Seaboard, 11 NMB at 226-27. True, any employee has a right to request a Board investigation when a dispute among employees arises, and if the Board were to adopt procedures renouncing its duty to act upon these requests, reversal under Leedom review would appear appropriate. But nothing in the Merger Procedures strips employees of the specific right to invoke the Board; the Procedures merely grant the same right to others without impairing the employees’ ability to request investigations.
Thus I agree in full with the majority’s view that the reasoning of Leedom cannot be confined to “shall not” commands in the statute. Some agency refusals to act would violate a plain statutory duty or command, see Miami Newspaper Printing Pressmen’s U. Local 46 v. McCulloch, 322 F.2d 993, 997 (D.C.Cir.1963) (refusals to certify election results may be reversible under Leedom); cf. Air Line Dispatchers Ass’n, 189 F.2d at 689 (pre-Leedom case finding jurisdiction to review claim that Board inaction completely defeats statutory rights). But to apply Leedom to the present case disregards the admonition of General Committee of Adjustment v. Missouri-Kansas-Texas R.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943), that “the command of the Act should be explicit and the purpose to afford a judicial remedy plain before an obligation enfor-cible in the courts should be implied”. Id. at 337, 64 S.Ct. at 152-53 (emphasis added).
Further, I can imagine a “clear” or “plain” statutory violation even in a case where the statute does not literally spell out the command or prohibition violated. Judge Leven-thal’s phrase in International Bhd. of Teamsters — an “error ... as obvious as the violation of specific statutory language” was well chosen. Thus contextual elements — some powerful linguistic norm, an important substantive background assumption, legislative history of unusual clarity, or prior judicial interpretive authority — might be so convincing that the peek at the merits would disclose a violation. No such element is present here. The majority invokes two of these possibilities — the legislative history and a linguistic norm (the concept that the expression of one thing excludes alternatives not expressed). Neither suffices.
*680Before turning to legislative history and linguistic norms, I will briefly address the issue of past Board practice. It seems most improbable that this could ever seriously influence the outcome of review under Switch-men’s/Leedom, since even the more intrusive review under Chevron recognizes that agencies may alter their interpretations of the statutes they are charged to enforce without forfeiting the deference they are otherwise due. Chevron, 467 U.S. at 863, 104 S.Ct. at 2791. Thus, even reading previous Board pronouncements as disclaimers of the authority asserted here, see Maj.Op. at 669-670, would not affect the case. Further, there is no possible way the past practice can be read as completely disclaiming statutory authority to investigate and certify sua sponte. The Board has an established practice of sua sponte investigation where it discovers election fraud, see, e.g., International Bhd. of Teamsters, 402 F.2d 196, and, as mergers necessarily change the “systems” to which the Board’s principle of systemwide representation applies, its action here vindicates a similar interest. There is simply no warrant for the majority’s claim that such Board efforts to preserve the integrity of past certifications will undercut the neutrality necessary for its mediation functions under § 5 First. Cf. Maj.Op. at 668-669.
The legislative history does indeed show that Congress was concerned with company unions and with employer interference with the choice of representation. See Maj.Op. at 668. But it is not at all clear why Board disentanglement of the impact of mergers on systemwide representation on its own initiative will tend to subject employees to such interference or control. The majority has not explained how employer requests interfere with the independent choice of employees to choose a preferred representative, except to imply that the carriers have absolute control over the timing of their requests and might choose to time their requests to disrupt (for example) one union’s challenge to an incumbent. Maj.Op. at 668. But the assumption of power over timing is invalid. The Procedures require the merging carrier to “notify the NMB in writing at the same time it files with the Interstate Commerce Commission for approval of its intent to merge.'” 17 NMB at 50 (emphasis added). And while the Procedures do allow carriers to “invoke the Board’s services” after the ICC filing is complete, 17 NMB at 53-54, this would only occur in cases where the Board has not acted in response to the carrier’s initial filing.
The majority’s reading of § 2 Ninth sacrifices important purposes that Congress sought to achieve. As the Court in General Committee pointed out “[section 2, Ninth] was designed not only to help free the unions from the influence, coercion and control of the carriers but also to resolve a wide range of jurisdictional disputes between unions or between groups of employees”, 320 U.S. at 336, 64 S.Ct. at 152, and that “[h]owever wide may be the range of jurisdictional disputes embraced within § 2, Ninth, Congress did not select the courts to resolve them”, id. The Board has identified merger situations as among those commonly producing disputes falling within that range, and its use of carriers to identify these disputes in their early stages is not “clearly” outside the Board’s expressly granted § 2 Ninth power to investigate and certify representatives in such instances.
Congress’s rejection of the Eastman version of § 2 Ninth (designating carriers as parties to the dispute and legally entitling them to request Board investigation), see Maj.Op. at 667, proves nothing about the Board’s discretion to allow carriers to request Board intervention in specified circumstances. As Railway Clerks made clear, congressional refusal to order party status for carriers left “solely in the discretion of the Board” “[w]hether and to what extent carriers will be permitted to present their views on craft or class questions”. 380 U.S. at 666-67, 85 S.Ct. at 1201. Had the Eastman bill passed, the Board would have been required to investigate at the behest of carriers and would have been investigating a different type of dispute — union-versus-carrier rather than union-versus-union. Congress’s desire to prevent employer intrusion is not thwarted by the Board’s adopting a policy of starting investigations when carriers bring to its attention specific circumstances that in its *681experience are likely to produce potentially disruptive representation disputes.
Finally, the majority reads too much into legislative silence when it implicitly relies on the proposition that congressional specification of one thing — a duty to investigate an employee request — negates the alternative. The first difficulty is that the majority slides over the question of just what alternative may be negated. While it is quite reasonable to read the provision for employee request as a “limiting condition” for the Board’s duty to investigate, see Maj.Op. at 666-67, it is quite another to infer negation of Board authority to investigate in response to carrier notice of mergers. The Court adopted precisely that distinction in Railway Clerks in holding that the Board was under no duty to allow carrier participation but was entitled to allow it and define its scope.
Legislative silence may, of course, reflect either a legislative decision to leave the issue unresolved or a failure to focus on the issue sharply. Where the issue arises in administration of a statute that Congress has confided to an agency, Chevron tells us how to read such a gap — as a matter to be resolved by the agency. See 467 U.S. at 843-44, 104 S.Ct. at 2781-83; Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C.Cir.1991). See also Cheney R.R. v. ICC, 902 F.2d 66, 68-69 (D.C.Cir.1990), and cases cited therein. Not surprisingly, this court has at times deemed legislative silence an insufficiently clear indication of Congressional intent to warrant Chevron deference. Health Insurance Ass’n of America v. Shalala, 23 F.3d 412, 423 (1994); Central States Motor Freight Bureau, Inc. v. ICC, 924 F.2d 1099, 1104-06 (D.C.Cir.1991). In some contexts, of course, a negative inference will make sense, as in the statute hypothesized in Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285, 1291-92 (D.C.Cir.1989), aff'd by an equally divided court, 493 U.S. 38, 110 S.Ct. 398, 107 L.Ed.2d 277 (1989): a ban on importation of apples, oranges and bananas clearly manifests an intent not to bar grapefruit. But nothing in the language or history of this statute makes the omission here the proper basis of such an inference.
Where the scope of judicial review is, as here, even more limited, use of such negative inferences is exceptionally unjustifiable. In Switchmen’s/Leedom review in the past we have rejected such an approach. In Professional Cabin Crew Ass’n v. NMB, 872 F.2d 456 (D.C.Cir.1989), we considered the Railway Labor Act’s definition of “employee” — a “person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work,” 45 U.S.C. § 151 Fifth — and refused to infer from its reference to current activity any actual requirement of current work; rather we upheld the Board’s decision that former strikers not presently working could vote. “[Neither section purports to speak exclusively.” Id. at 460. We also refused to draw negative implications from the contrast in wording between the RLA and the NLRA. See id. at 461. In both this case and PCCA there- is statutory language that states something affirmative; in both the issue is whether that affirmative implies a negative. Structurally, the issues are just the same. See also International Bhd. of Teamsters, 402 F.2d at 201-03 (recognizing Board’s implied power to refuse to certify, or to decertify, representatives even though the statute authorized only identification and certification).
As the APA does not qualify the congressional preclusion of review of National Mediation Board decisions, and there is no principled way of singling out jurisdictional decisions for de novo review, I would apply the established principles of Switchmen’s/Leedom. As I can find no “clear and mandatory” barrier to the Board’s efforts to assure that existing certifications do not turn into violations of the systemwide representation rule, I would uphold its decision and affirm the district court’s dismissal of the actions.
. I am assuming for the sake of argument that the challenge here concerns a “rule" and not a policy statement, which would not bind the agency. See, e.g., Public Citizen, Inc. v. U.S. NRC, 940 F.2d 679, 682 (D.C.Cir.1991). While the Merger Procedures do oblige carriers to report mergers to the Board, they do not clearly bind the Board to investigate in any particular case. Merger Procedures, 17 NMB at 53-54 ("Carriers ... may invoke the Board’s services for a determination of the post-merger status of any NMB certifications”); id. at 51 (“The Board’s investigation shall take the form required by the circumstances”). As the logic of excepting rules from Switchmen s/Leedom is unclear, it is anyone's guess whether the exception would embrace a policy statement, which is often reviewable only at the time of application.
. Peter L. Strauss, The Rulemaking Continuum, 41 Duke L.J. 1463, 1482-83 (1992); Charles J. Morris, The NLRB in the Dog House — Can an Old Board Learn New Tricks, 24 San Diego L.Rev. 9, 27-42 & n. 80 (1987) (citing numerous articles treating the advantages of rulemaking); Richard K. Berg, Re-Examining Policy Procedures: The Choice Between Rulemaking and Adjudication, 38 Admin.L.Rev. 149, 163-64, 170 (1986); Robert W. Hamilton, Procedures for the Adoption of Rules of General Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 Cal.L.Rev. 1276, 1313-15 (1972); but cf. Glen O. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U.Pa. L.Rev. 485, 514-16 (1970). For similar arguments directed at state agencies, see Arthur Earl Bonfield, State Administrative Policy Formulation and the Choice of Lawmaking Methodology, 42 Admin.L.Rev. 121, 122-36 (1990).
. The Board argues persuasively that in fact our prior reviews of non-exercises of jurisdiction can be justified as mere applications of Leedom.