with whom POSNER, Chief Judge, and MANION, Circuit Judge, join, concurring.
When judges speak of “deference” to an administrative decision or interpretation, they may mean any of three situations:
• Delegation. When Congress has given an agency the power to adopt legal norms via formal rule-making or administrative adjudication, the court must accept action within the scope of the delegated power the same way it accepts legislation.
• Respect. When the statute tells the executive branch to achieve a goal, the choices made in pursuit of that objective are political in nature. The President rather than a judge decides how to execute the laws, and a court therefore must respect the discretionary choices a coordinate branch of government has made in the course of implementation.
• Persuasion. On a “pure” question of law, an agency’s views may persuade when they cannot compel. To the extent statutory text and structure are conclusive on the issue of meaning, an agency may persuade by illuminating how the pieces of the statute fit together. To the extent other factors (collectively “legislative intent”) matter, the agency may have better access to indicators of this intent than do judges.
Using one word for three distinct subjects breeds confusion. Justice Breyer believes' that it has done worse — that it sometimes has led courts to give more force to an agency’s legal arguments (the “persuasion” category) than to the agency’s choices about wise policy (the “respect” category), reversing the proper role of the political and judicial branches. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin.L.Rev. 363 (1986).
Today’s case shows how vocabulary affects analysis. The Federal Railway Administration has not been delegated either rulemak-ing or adjudicative power over the subject of hours of service. It therefore cannot demand obedience to its law-making choices after the fashion of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Adams Fruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990). But it does oversee implementation of the wages and hours laws (and much else of concern to railroads and their workers), and therefore not only may have persuasive thoughts about the interpretation of the laws but also may be entitled to make some choices about implementation.
When an agency seeks to persuade us that its legal analysis is correct, we pay attention to whether it has long-standing, consistent views, see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), for a legal interpretation adopted soon after the statute’s enactment may be the best evidence of the meaning the words carried in the legal- profession at the time. Aterations in the legal and cultural landscape may make the meaning hard to recover; a contemporaneous understanding captures much of value, while changes of position may reflect only a shift in views of sound policy and therefore do not assist in ascertaining the original meaning. See West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-02 & n. 7, 111 S.Ct. 1138, 1147-49 & n. 7, 113 L.Ed.2d 68 (1991). When, however, an agency offers a view about wise administration, a change in perspective may show that the agency is sensitive to the contemporary economic context— the railroad industry, for example, has undergone a revolution in the last 30 years— and therefore is doing its job. Applying the word “deference” to both respect and persua*446sion implies that consistency of administrative views always cuts in favor of the agency’s position. Yet consistency ought to matter only when the agency is seeking to persuade — and even then only when the consistent interpretation offers us a view into the understanding of the original interpretative community. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 259-60, 111 S.Ct. 1227, 1236-37, 113 L.Ed.2d 274 (1991) (Scalia, J., concurring); Mayburg v. Secretary of HHS, 740 F.2d 100, 105-07 (1st Cir.1984) (Breyer, J.). See also Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash.U.L.Q. 351 (1994); Cass R. Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2101-04 (1990).
Taking “deference” as a unitary concept, my colleagues observe that the FRA has changed positions, and they conclude that its position is therefore not entitled to deference. I look at this differently. If the question is the way 45 U.S.C. § 61(b) treats deadhead transportation at the end of duty, then consistency is informative — and the FRA has been consistent. Ever since 1907, when the Hours of Service Act came into being, the FRA and its predecessors have believed that time between the end of work and arrival at a place of rest does not count as time on duty. The agency adhered to this position immediately after the 1969 amendments and has not wavered. The published statement that we review, 58 Fed.Reg. 18163-66 (Apr. 8, 1993), reiterates this position, stating that the FRA disagrees with the legal analysis of United Transportation Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). To the extent the question at hand is “Does 45 U.S.C. § 62(b) treat time after the crew is relieved of work on the train as time ‘on duty?”, the FRA has been consistent; and to the extent stability lends persuasive force to its position, we should be falling into line.
After reaching a judgment about the interpretation of the Hours of Service Act, the FRA reached a second judgment — about the desirability of uniform application. It told the ninth circuit, announced in the Federal Register, and now has told us, that a single national rule is superior given the integrated nature of the national railroad system. Once again the agency has been consistent. Its views about the benefits of uniformity induced it to put the ninth circuit’s interpretation into force nationwide,' despite its belief that the ninth circuit got the law wrong. If the combination of the two can be called a flip-flop (on the ground that the FRA now is administering the Act differently), the change is attributable to the malleable legal landscape. Agencies ought to respond to legal and economic changes rather than to plow on as if nothing had happened. In making a judgment that a uniform rule is preferable to subjecting the railroads (and perhaps particular crews) to multiple legal schemes, the agency has adopted a position on sound administration. We must decide whether this is the type of decision that deserves our respect.
To change the terminology, the FRA decided to acquiesce in the ninth circuit’s interpretation. It thought that litigation should come to an end without the complicated dance that generates a conflict among the circuits and so propels the subject onto the Supreme Court’s agenda. The FRA believes that on this subject it is “more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandéis, J., dissenting). Courts regularly denounce agencies for not following judicial interpretations, so it is a little surprising to see the FRA boxed about the ears for complaisance. Agencies stick to their guns when they believe the difference in legal positions or practical consequences important; but if they think that the arguments are closely balanced or the practical consequences of the two positions similar, they may conclude that one case is enough — especially if they think that the Solicitor General would not deem the subject sufficiently important to justify a petition for certiorari. If the Solicitor General declines to seek, or the Supreme Court declines to grant, further review, then .nonac-quiescence may yield entrenched differences among the circuits. We know from United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), that the executive branch need not follow a circuit’s interpreta*447tion, even within that circuit’s borders. See also Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989); cf. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L.Rev. 43 (1993). But an agency prudently may decide to acquiesce, to reduce uncertainty and the costs of both the legal process and compliance with multiple standards, a particular problem for firms with peripatetic operations.
When an agency declines to acquiesce, a court does not “defer” to this decision. A person aggrieved by the agency’s decision to fight like a tiger is entitled to judicial review. The court construes the statute after an independent inquiry, and the agency prevails only if it has the stronger argument on the merits. Just so with acquiescence. A party aggrieved by the agency’s decision to throw in the towel may protest and obtain an independent decision. Acquiescence and nonac-quiescenee are mirror images when each produces winners and losers in the private sector. If cornets review nonacquiescence decisions without a thumb on the scale in favor of the agency’s choice, they must review acquiescence decisions independently. Mendoza itself supplies a strong argument: additional litigation may lead to a conflict among the circuits and review by the Supreme Court with the benefit of additional legal views that increase the probability of a correct disposition. Today’s decision may well lead the Supreme Court to address the question. An agency may be wise in thinking that national uniformity is highly desirable. When acquiescence affects only the public fisc (when, for example, the IRS accepts a decision that reduces collections), the agency’s decision is dispositive; it is an exercise of the President’s power to execute the laws. When private rights exist on both sides, the agency’s decision one way or the other on acquiescence is contestable in order to hold the balance true among the private interests.
Whenever this court decides whether to create a conflict among the circuits, it makes a decision about the benefits of uniformity versus accuracy no different in principle or effect from the decision the FRA made about the Hours of Service Act. When the Supreme Court decides to let a conflict simmer, or to grant plenary review, it makes a similar decision. Nationwide implementation of the decision of the first circuit to encounter a question is not, therefore, the sort of executive prerogative to which a court owes the respect that it must accord the executive’s decision about sound administration of the law. It is a subject on which judges are free to exercise their own judgment, when a party aggrieved by the agency’s decision complains. I therefore agree with my colleagues that we need not “defer” to the FRA’s acquiescence position. We ought, however, to grant some persuasive force to its consistent view of the meaning of the law. This brings us out in the same place, and, with a few exceptions, for the same reasons. I therefore join not only the court’s judgment but also its opinion, except for the discussion of deference at pages 441-43.