concurring:
The statute governing homosexuals in the Armed Services that was enacted by the Congress of the United States and signed by the President forbids known homosexuals from serving in the military. As Lt. Thom-asson has steadfastly maintained, the statute, and the policy it embodies, is not at all conduct-based in the sense now argued by the Executive Branch, assertedly on behalf of the Congress. The statute requires the discharge of homosexual service members who merely say that they are homosexual or otherwise evidence their homosexuality, regardless of whether they have actually engaged in homosexual conduct or are likely to engage in any such conduct.
The requirement that, in order to be discharged, one must at least demonstrate a likelihood to engage in homosexual acts exists only in a regulation promulgated by the Administration, ostensibly in implementation of the statute. That regulation redefines the statutory term “propensity” so that only those homosexual service members who are likely to engage in homosexual acts will be discharged. Through this regulation the Administration has effectively secured the very policy regarding military service by homosexuals that it was denied by the Congress.
Rather than continue to indulge the politically expedient fiction that the congressionally-mandated policy bars from service only those known homosexuals who are likely to *935engage in homosexual acts — a fiction that both of these parties urge upon us because it serves their mutual interest in creating a sanctuary for homosexuals within the military — I would simply invalidate the Administration’s regulation as in excess of its statutory authority. Then, having done so, I would sustain the policy that was actually enacted into law as a permissible exercise of Congress’ constitutional authority “To make Rules for the Government and Regulation” of the military. U.S. Const. Art. I, § 8, cl. 14. As the Solicitor General maintained at argument, and as the courts have uniformly-held in analogous contexts, it is. well within the plenary authority of the Congress to exclude homosexuals from military service because of the deleterious effects that knowledge of them attraction for members of the same sex has on unit cohesion and military effectiveness.
The Administration stridently argues that the question of the validity of the regulation is not before us. Thomasson, however, unequivocally draws into question the validity of the regulation through his argument that, despite the conduct-based regulation, the military’s policy is status-based:
The [Family Research] Council asserts that the Department of Defense and Navy regulations at issue in this case conflict with the Congressional intent of the statute that is also at issue.... In support of its motion, the Council asserts that the parties have overlooked this point. In fact, however, this point was raised in Lt. Thomasson’s brief and was extensively addressed by both parties at the prior argument in this appeal. See, e.g., Brief for Appellant, at 45 n. 47, 45-49.
Appellant’s Resp. to Mot. of Amicus Curiae Family Research Council for Leave to Participate in Oral Argument at 2 & n. 1 (emphasis added). And the Administration defends its policy entirely on the grounds that the regulation is the source of the conduct-based rationale for the policy. Thus, both parties clearly believe that the constitutionality of the “Don’t Ask; Don’t Tell” policy turns upon the regulatory redefinition of “propensity” to mean a likelihood of future conduct.
I.
For as long as it has had a military, the United States has excluded homosexuals from military service. During the 1992 election campaign, then-Governor Clinton said that, if elected, he would repeal this longstanding ban on homosexuals, see S.Rep. No. 112, 103d Cong., 1st Sess. 267 (1993), and, true to his promise, slightly more than a week after assuming office President Clinton announced in his first press conference that he was directing Secretary of Defense Aspin to prepare an Executive Order “ending discrimination [in the military] on the basis of sexual orientation.” Memorandum on Ending Discrimination in the Armed Forces, 1 Public Papers of the Presidents, William J. Clinton, Jan. 29, 1993, at 23 (“Pub.Papers”); see also J.A. at 335.1 During this press conference, see The President’s News Conference, 1 Pub. Papers 20, 21 (Jan. 29, 1993), President Clinton embraced as consistent with his own views the distinction between homosexual status and homosexual conduct drawn by the federal District Court for the Central District of California in a decision that had been rendered only the previous day. See Meinhold v. United States Department of Defense, 808 F.Supp. 1455, 1458 (C.D.Cal.1993), aff'd in part and vacated in part, 34 F.3d 1469 (9th Cir.1994). In Mein-hold, the district court had enjoined the Department of Defense from discharging homosexuals based on sexual orientation, absent any evidence of homosexual conduct.
A political firestorm erupted' over the President’s announced plans to lift the ban on homosexuals. Congress, for its part, convened hearings to consider the effect that the President’s proposed elimination of the ban vrould have on military capability. It also created a Military Working Group to consider the President’s proposal, which, on July 1, *9361993, released a report concluding that “the presence of open homosexuals in a unit would, in general, polarize and fragment the unit and destroy the bonding and singleness of purpose required for effective military operations.” Summary Report of the Military Working Group 5 (July 1, 1993) (emphasis added).
Despite the conclusion of the Military Working Group that the mere presence of homosexuals would detrimentally affect unit cohesion, the “Policy on Homosexual Conduct in the Armed Forces” transmitted by Secretary Aspin to the Secretaries of the Army, Navy and Air Force and to the Chairman of the Joint Chiefs of Staff on July 19, 1993, provided as follows:
[I]t is the policy of the Department of Defense to judge the suitability of persons to serve in the armed forces on the basis of them conduct. Homosexual conduct will be grounds for separation from the military services. Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by homosexual conduct.
Memorandum from The Secretary of Defense, July 19, 1993, at 1 (“July 19th Memorandum”), reprinted, in Assessment of the Plan to Lift the Ban on Homosexuals in the Military: Hearings Before the Military Forces and Personnel Subcomm. of the House Comm, on Armed Services, 103rd Cong., 1st Sess. 22 (1993) (H.A.S.C. No. 103-19). At a press conference that same day, President Clinton himself announced the new policy, explaining that “service men and women [under the new policy] will be judged based on their conduct, not their sexual orientation,” and suggesting strongly that known homosexuals could remain in military service provided they did not engage in conduct violative of the Uniform Code of Military Justice. Remarks Announcing the New Policy on Homosexuals in the Military, 1 Pub. Papers 1109, 1111 (July 19, 1993); see id. at 1109 (“[The new policy] provides greater protection to those who happen to be homosexual and want to serve their country honorably in uniform, obeying all the military’s rules against sexual misconduct.” (emphasis added)).
Concerned that the new policy as described by the President would allow open homosexuals to serve in the military, Congress questioned Administration officials at length on the precise meaning of the new policy, enacting the legislation that we now have before us only after it was convinced that the new policy would retain the ban on service by homosexuals. See, e.g., S.Rep. No. 112 at 289 (“Based upon the testimony [by Secretary Aspin, the Joint Chiefs of Staff, the General Counsel of the Department of Defense, and the Military Working Group] received at the hearing, the committee finds that the Department of Defense has retained the central features of its policy concerning homosexuality in the armed forces,” namely, “mandatory discharge” for “homosexual acts, marriages, and statements that demonstrate a propensity to engage in homosexual acts.”). Congress thus codified the long-standing ban against service by homosexuals, 10 U.S.C. § 654, adopting in an uncodified “sense of Congress” provision the President’s interim policy ceasing the questioning of new recruits about their sexual orientation. National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, § 571(d)(1), 107 Stat. 1547, 1673 (1993). Even so, Congress included a proviso that the Secretary of Defense could reinstate the questioning of new recruits if, in the Secretary’s view, such ultimately proved necessary to implement the statutory ban on service by known homosexuals. See id.2
It is this statutory policy enacted by Congress, not the policy advocated by President Clinton in January 1993 or the policy implemented by the Secretary through regulation, *937that was signed into law on November 30, 1993.
II.
A.
Section 571(a) of the National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. § 654, like the pre-1993 Department of Defense Directives it codifies, unambiguously prohibits all known homosexuals from serving in the military, regardless of the likelihood that they will violate the Uniform Code of Military Justice prohibition against sodomy, see Article 125, U.C.M.J., 10 U.S.C. § 925, or engage in other homosexual acts as defined by the statute, see 10 U.S.C. § 654(f)(3).3 The statute defines “homosexual” as “a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.” Id. at § 654(f)(1). It then provides that a service member who states that he is homosexual (or otherwise evidences his homosexuality)4 shall be separated from service unless he demonstrates that he is not, as statutorily defined, a “homosexual”:
A member of the armed forces shall be separated ... if [inter alia ] ... the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless ... the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
Id. at § 654(b)(2) (the “statements” provision). The presumption that one is homosexual which arises from one’s statement of homosexuality, in other words, can be rebutted only by proving that one does not even have a propensity to engage in homosexual acts. See S.Rep. No. 112 at 294 (“[0]nce the government introduces evidence that the member has stated that he or she is a homosexual, the burden shifts to the member ... to demonstrate that he or she is not a homosexual as defined in the statute.”); id. (“[T]he member bears the burden of persuading the fact-finder by a preponderance of the evidence that the rebuttal is more credible than the original statement (e.g., by proving that the original statement was made in jest).”).5 The statute in this manner bars service not just of those individuals likely to engage in homosexual acts, but rather, of all acknowledged (or otherwise known) homosexuals. That the statute is aimed at known homosexuals, rather than homosexual acts, is further confirmed by the fact that, pursuant to section 654(b)(1), a heterosexual who actually engages in homosexual acts is not barred from service if he demonstrates inter alia that he is not a homosexual.6
In barring all known homosexuals from military service, the statute is identical to the pre-1993 DoD policy:
*938Homosexuality is incompatible with military service.... A member shall be separated ... if ... [t]he member has stated that he or she is a homosexual or bisexual unless ...' the member is not a homosexual or bisexual.
DoD Directive 1332.14 (March 9, 1982), reprinted in 32 C.F.R. Ch. 1, Pt. 41, App. A, ¶¶ H.l.a. and H.l.c.(2) (1994). Indeed, in the following colloquy with Senator Nunn during the Senate hearings on the “Don’t Ask; Don’t Tell” policy, the General Counsel for the Department of Defense, Jamie Gorelick, confirmed that the current policy is the same as the prior policy in this critical respect:
CHAIRMAN NUNN. Under [the pre-1993] DoD policy, if there is ’a finding that an individual has stated that he or she is homosexual, that person is discharged unless there is further finding that the individual is not, in fact, homosexual, that is, the person does not engage in homosexual acts or have an intent or desire to do so. Is that correct?
MS. GORELICK. That is correct.
CHAIRMAN NUNN. In other words, the [pre-1993] policy establishes a rebuttable presumption that a person who says he or she is homosexual is, in fact, homosexual. Is that correct?
MS. GORELICK. That is what the current policy does. And, as the Secretary says, that is carried forward into the new policy.
S. Hrg. 103-845 at 771 (emphasis added). Secretary Aspin also affirmed that the policy disqualifies from service all known homosexuals, agreeing in response to questions from Senator Gramm that, under the policy, military personnel “would at least be assured that no one would be a self-professed homosexual and be allowed to continue to serve.” Id. at 727; see also id . at 746-47 (Secretary Aspin confirming that the rebuttable presumption in the current policy is the same as that in the prior policy).
The fact that the statute excludes known homosexuals from service because they are homosexual and not only because they engage in homosexual acts is reinforced in the statutory findings made by Congress:
The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts [ — that is, of “homosexuals,” as statutorily defined — ] would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
10 U.S.C. § 654(a)(15) (emphasis added); see also S.Rep. No. 112 at 293 (“The [legislative] findings reflect long standing Department of Defense policy, as set forth in [the pre-1993] DoD Directive[s], that ‘homosexuality is incompatible with military service ... [because the] presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.’ ”); H.R.Rep. No. 200, 103d Cong., 1st Sess. 287 (1993), reprinted in 1993 U.S.Code Cong. & Admin. News 2013, 2074 (“[T]he committee concludes that homosexuality is incompatible with military service.”).7
And there is abundant support for this statutory finding in the legislative record. See, e.g., S.Rep. No. 112 at 278 (testimony of General Colin Powell); id. at 280 (testimony of General H. Norman Schwarzkopf); S. Hrg. 103-845 at 780 (testimony of General John Otjen); MWG Summary Report at 5; see generally Able, 880 F.Supp. at 977 (describing the disruptive effect to unit cohesiveness caused by the mere presence of homosexuals in the military as “a theme repeatedly stated by high-ranking officers”).
*939Thus, the “Don’t Ask; Don’t Tell” policy enacted into law, as opposed to the policy that has been put in place by the Administration, is not conduct-based in the constitutionally significant sense that homosexuals may only be discharged based upon their commission of homosexual acts or their likelihood to commit such acts, or even in the sense that its purpose is to prevent homosexual conduct before it occurs. As Lt. Thomasson correctly observes, this “focus on conduct [is but] a lawyer-driven, pretextual afterthought” by the Administration. Appellant’s Br. at 26; see also Able, 880 F.Supp. at 977 (“[T]he lawyers evolved the Byzantine and complex [regulatory] provisions” in order “to pretend that the concern was [not over] the mere presence of homosexuals in the Services, but [over] them potential acts.”). Compare Gov’t Br. at 23 (“Thomasson’s repeated assertion that the policy classifies on the basis of homosexual orientation cannot be reconciled with the plain regulatory language that equates ‘propensity with ‘likelihood.’ ” (citations omitted) (emphasis added)).
The statutory policy is “conduct-based” (if it can be so characterized at all) only in the sense that the sendee member must evidence his homosexual propensity in some manner, if only by a statement, before he will be discharged. See DoD Directive 1332.30, Enel. 1, ¶ 9, Enel. 2, ¶ C, and Enel. 6, ¶ B.4 (March 4, 1994) (defining “homosexual conduct” so as to include “statements”); MWG Summary Report at 4 (same); S.Rep. No. 112 at 289 (same); see also S. Hrg. 103-845 at 817 (testimony of Jamie Gorelick) (“[W]hen we talk about separating status from conduct, we are talking about separating orientation from homosexual acts, statements, and marriages.” (emphasis added)); id. at 807 (testimony of Jamie Gorelick) (“[T]he policy has always been defended on the basis that it is homosexual conduct — acts, statements, and marriages — that is the basis of discharge under the current policy.” (emphasis added)). Such a policy is, as between pure status and pure conduct, a status-based policy, because it merely recognizes, certain conduct as evidence of homosexuality; it does not exclude on the basis of that conduct itself. To say that the policy is status-based in this sense, as opposed to conduct-based in the sense argued by the Administration, of course, is not to say that the policy is status-based in the same way that an exclusion on the basis of an immutable characteristic would be. Rather, it is to say that the policy is based upon what is in fact a hybrid of status and conduct, namely, “propensity.” “Propensity” is different .from a predetermined and immutable characteristic like race or sex, in that it is a disposition toward certain conduct; but it is also different from conduct itself, or its likelihood, because it is neither itself action nor necessarily indicative of likely future action. It is, as commonly understood, merely an inclination, see infra, and it is that inclination, that propensity, not any likelihood of conduct, at which this particular policy is directed.
That the enacted policy is conduct-based only in the sense that there must be some manifestation of one’s homosexuality should not be surprising. The whole of the compromise between the Congress and the President was that the military would no longer question a new recruit or service member about his sexual orientation absent some manifestation by him of homosexuality, but that discharge would be mandated if a service member evidenced his homosexuality in any way at all — through even as little as a statement — unless he could prove that he was not homosexual. Thus, the policy: “Don’t Ask, Don’t Tell.”
B.
The Administration fully understands that the policy - enacted by Congress is not conduct-based in the sense that it is targeted at homosexual acts and the likelihood that one will commit such acts, as evidenced by its repeated miseharacterization of the statute itself and its effective misquotation of the testimony of the various witnesses and legislators on this important if not dispositive issue. On virtually every occasion when the Administration references either a statutory provision or a passage from téstimony wherein Congress or a witness observed that the presence of open homosexuals would be detrimental to combat capability or unit cohesion, it substitutes its regulatory definition of “propensity” (i.e., a likelihood that one will *940engage in homosexual acts) for the words actually enacted or spoken.
The Administration states, for example, that,
[t]he classification here is directed at homosexual “acts and the likelihood of acts” and is grounded in the congressional finding that the presence in the military of persons who engage in, or are likely to engage in, such acts “would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” 10 U.S.C. 654(a)(15).
Gov’t Br. at 16-17 (emphasis added). In fact, the statutory finding referenced by the Administration in this passage is not that an unacceptable risk would be created by the presence of persons likely to engage in homosexual acts; rather, the finding is that the risk would be created by “ft]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts.” 10 U.S.C. § 654(a)(15).
Similarly, the Administration describes General Powell’s Senate testimony in this way:
In General Powell’s experience, service by persons who engage in, or are likely to engage in, homosexual acts, “would have an unacceptable detrimental and disruptive impact on the cohesion, morale, and esprit of the armed forces.” S.Rep. 112 at 278. See also id. at 281.
Gov’t Br. at 37 (emphasis added); see also id. at 3 (same). General Powell actually stated not that the service of persons likely to engage in homosexual acts would be detrimental to unit cohesion, but rather that,
the presence of open homosexuality would have an unacceptable detrimental and disruptive impact on the cohesion, morale, and esprit of the armed forces.
S.Rep. No. 112 at 278 (emphasis added).
Repeating the mischaraeterization, the Administration recites again, later, that “General Powell stated that ’it would be prejudicial to good order and discipline’ if the military required heterosexuals and persons who do, or are likely to, engage in homosexual acts ‘to share the most private facilities together, the bedroom, the barracks, latrines, and showers.’ ” Gov’t Br. at 38 (quoting from S.Rep. No. 112 at 283) (emphasis added). General Powell actually stated:
[I]t is veiy difficult in a military setting, where you don’t get a choice of association, where you don’t get a choice of where you live, to introduce a group of individuals who are proud, brave, loyal, good Americans, but who favor a homosexual life style, and put them in with heterosexuals who would prefer not to have somebody of the same sex find them sexually attractive, put them in close proximity, [and] ask them to share the most private facilities together, the bedroom, the barracks, latrines, and showers.
I think that it is a very difficult problem to give the military. I think it would be prejudicial to good order and discipline to try to integrate that in the current military structure.
S.Rep. No. 112 at 283 (emphasis added); see also Appellant’s Reply Br. at 13 (“[The government has] simply and repeatedly misrepresented General Powell’s testimony in an effort to suggest [that the policy is based on conduct, not on mere acknowledgements of sexual orientation, irrespective of conduct].”).
The Administration misrepresents General Schwarzkopfs testimony in the same manner. It apprises the court that,
General Schwarzkopf similarly testified, based on his consistent experience over years of military service, that the presence of such homosexuals [viz., “persons who engage in, or are likely to engage in, homosexual acts”] in a military unit “polarizes that unit and destroys the very bonding that is so important for the unit’s survival in time of war.” [S.Rep. 112] at 280.
Gov’t Br. at 37 (emphasis added). General Schwarzkopf actually stated:
[I]n my years of military service, I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit’s survival in time of war.
S.Rep. No. 112 at 280 (emphasis added).
Likewise, the Solicitor General says that General Schwarzkopf testified that, “where *941such homosexuals [again, those who either engage in or are likely to engage in homosexual acts] served in military units, ‘morale broke down, and unit effectiveness suffered,’” Gov’t Br. at 37 (emphasis added), when in fact General Schwarzkopf testified that, “in every ease [he was] familiar with, ... whenever it became known in a unit that someone was openly homosexual, polarization occurred, violence sometimes followed, morale broke down, and unit effectiveness suffered.” S.Rep. No. 112 at 280 (emphasis added).
Such mischaracterization appears repeatedly throughout the government’s submissions.
It is self-evident that this mischaracterization is purposeful. The deliberateness of the mischaracterization is also borne out, however, by the fact that when the Administration responded to congressional leaders whom it knew to be opposed to its position on military service by homosexuals, it substituted the statutory language for the regulatory language, rather than the regulatory language for the statutory language as it does before this court. Senators Thurmond, Nunn and Coats, on behalf of the Senate’s Committee on Armed Services, asked the Department’s General Counsel “[h]ow ... the implementing directives and related guidance address ... [t]he circumstances in which a person who states that he or she is a homosexual claims that the rules preclude separation of anyone based on their ‘sexual orientation.’” Letter from DoD General Counsel Judith A. Miller to Senators Thurmond, Nunn and Coats 1, 2 (July 27, 1995) (reciting questions from Thurmond, Nunn and Coats letter of July 13, 1995). When DoD answered this question, it did so with what is almost a verbatim quotation from its regulation,- altered only so as to substitute the statutory language for the final clause of the regulation, which refers to the possibility of rebuttal through proof that one is not likely to engage in homosexual acts. The regulation provides, of course, that,
[i]n determining whether a member has successfully rebutted the presumption that he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts, some or all of the following may be considered: (a) Whether the member has engaged in homosexual acts; (b) The member’s credibility; (c) Testimony from others about the member’s past conduct, character and credibility; (d) The nature and circumstances of the member’s statement; [and] (e) Any other evidence relevant to whether the member is likely to engage in homosexual acts.
DoD Directive 1332.14, Enc. 3, Att. 1, ¶ H.l.b.(2) (March 4, 1994) (emphasis added). The Department of Defense General Counsel, however, replied to the Senators as follows:
In determining whether a Service member has successfully rebutted the presumption, a Board may consider, among other evidence: whether the member has engaged in homosexual acts; the member’s credibility; testimony from others about the member’s past .conduct, character and credibility; the nature and circumstances of the statement; and any other evidence relevant to' whether the member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
Letter from DoD General Counsel Judith A. Miller to Senators Thurmond, Nunn and Coats 3 (July 27, 1995) (emphasis added).
III.
Despite Congress’ clear mandate requiring the discharge of all known homosexuals, the Department of Defense has, by its regulatory redefinition of the statutory term “propensity,” created what is in effect a sanctuary for known homosexuals whom the military determines are not likely to engage in homosexual acts. See Gov’t Br. at 27 (“Both on the face of the policy and in actual practice, the rebut-table presumption allows a service member who has stated that he is homosexual an opportunity to be retained in the service by showing that he does not engage in, and is not likely to engage in, homosexual acts.”).8 *942Because it is unmistakable that, under the statute enacted by Congress, such homosexuals may not remain in sendee of the military, I would invalidate this regulation as an impermissible exercise of the regulatory authority conferred upon the Secretary.
A.
The regulation promulgated by the Secretary defines the statutory phrase “propensity to engage in homosexual acts” to mean “a likelihood” that one will engage in homosexual acts:
Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.
DoD Directives 1332.30, Ene. 1, ¶ 13 (March 4, 1994) (emphasis added).9 By so defining “propensity,” the Secretary has, contrary to the clear intent of the Congress, effectively transformed a provision that permits rebuttal of the presumption of homosexuality only by proof that one is not a member of the class (i.e., not a homosexual), into a provision that permits individualized rebuttal of the presumption merely by proof that one is not likely to engage in homosexual acts.
Quite obviously, “propensity” does not mean “a likelihood,” and it certainly does not mean, as the Administration maintains, “likely”; nor can the term reasonably be defined in either of these ways. As common sense suggests, “propensity” is merely “a natural inclination” or an “innate or inherent tendency.” Webster’s Third New Int’l Dictionary, Unabridged 1817 (1986); see also The Oxford English Dictionary 637 (2d ed.1989) (defining “propensity” as “disposition or inclination to some action, course of action, [or] habit”); The American Heritage Dictionary 1452 (3d ed.1992) (defining “propensity” as “an innate inclination; a tendency”); Able, 880 F.Supp. at 975 (“ ‘[Propensity’ is generally understood and defined to mean a ‘natural inclination’ or an-;,‘innate or inherent tendency.’ ”). Compare Oxford English Dictionary at 345 (defining “homosexual” as a “[a] person who has a sexual propensity for his or her own sex” (emphasis added)); Webster’s Dictionary at 1085 (defining “homosexual” as “one who is inclined toward or practices homosexuality” (emphasis added)). The Department of Justice itself argued for a definition of “propensity” as “inclination” before the Ninth Circuit, in the case that apparently serves as the Administration’s model for its policy. See Gov’t Br. at 23 n. 8, Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir.1994) (No. 93-55242) (“[P]ropensity” is “an ‘often intense natural inclination.’ ” (citing Webster’s New Collegiate Dictionary 943 (9th ed.1990))).
The Solicitor General’s twin responses to this common understanding of the term *943“propensity” are themselves testament to the indefensibility of the position he defends. First, he notes that the dictionary includes the word “propensity” in the synonymy for the word “leaning,” and, therein, in distinguishing “propensity” from “leaning,” suggests that the word “propensity” “may apply to an innate or deeply engrained longing or attraction making a certain course of action highly probable.” See Gov’t Supp. Br. at 4 (quoting Webster’s Dictionary at 1286 (definition of “leaning”)). This entry does not in any way suggest,' contrary to the Solicitor General’s belief, that “propensity” is synonymous with “likely”; it suggests only that “pi’o-pensity” may refer to an innate longing or attraction, which in turn may render certain action more likely — and, at that, the entry only indicates that “propensity” may refer to such an innate longing or attraction, not that it need so refer or even that it ordinarily does in common usage. If anything, the significance of this entry is not that it suggests a possible distinction between “propensity” and “leaning,” but that it includes “propensity” as a synonym of “leaning,” which it defines, as it does “propensity,” as an “inclination.” The interchangeability of “propensity,” “inclination,” and “leaning” all but confirms that “propensity” cannot be defined as “a likelihood,” as the regulation purports to do.
Second, the Solicitor General combs, from the United States Reports two examples of use of the word “propensity,” which he claims support his equation of that term with “likely.” See Gov’t Supp. Br. at 4. Apart from the general irrelevancy of this enterprise, neither of the examples supports the regulatory definition he seeks to justify. The Court in Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948), clearly used the word “propensity” to mean “inclination” or “predisposition,” not, as the Solicitor General seems to believe, “likely.” And although Justice Blackmun (joined by Justice Stevens), in Ballew v. Georgia, 435 U.S. 223, 235, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978), did use the words “propensity” and “likelihood” interchangeably in discussing the conviction rates for juries comprised of different numbers of jurors, he did not use either word to mean “likely,” as the Department of Defense regulation and implementing interpretations use the phrase “a likelihood.”
If resort to easelaw is to be had, even a cursory review reveals that the weight of even arguably relevant authority is that the word “propensity” means merely an “inclination,” precisely the definition the dictionaries ascribe to the term. See, e.g., Robinson v. California, 370 U.S. 660, 678-79, 82 S.Ct. 1417, 1426-27, 8 L.Ed.2d 758 (1962) (Harlan, J., concurring) (“Since addiction alone cannot reasonably be thought to amount to more than a compelling 'propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.” (emphasis added)); Powell v. Texas, 392 U.S. 514, 543, 88 S.Ct. 2145, 2159, 20 L.Ed.2d 1254 (1968) (Black, J., concurring) (“Punishment for a status is particularly obnoxious, and in many instances can reasonably be called cruel and unusual, because it involves punishment for a mere propensity, a desire to commit an offense _” (emphasis added)).
There is simply no credible argument that in common usage “propensity” means “likely”; any argument that it does is sophism. There certainly is no argument that the very Congress that refused to lift the long-time ban on homosexuals in the military and insisted that service members be discharged even for statements that they were homosexual would have regarded these terms as equivalent. For to define the term “propensity” as “likely” is “to create ... a sanctuary in the military where homosexuals could serve discreetly and still be subject to separation for proscribed conduct,” the very circumstance the Congress concluded would be “inimical to unit cohesion, morale, welfare and discipline, unenforceable in the field, and open to legal challenge.” H.R.Rep. No. 200, 103d Cong., 1st Sess. 289 (1993), reprinted in 1993 U.S.Code Cong. & Admin. News 2013, 2076.
B.
When the regulation was announced, the Secretary attempted to justify it on the *944ground that the substitution of the statutory term “propensity” for the term “desire,” which appeared in the pre-1993 DoD Directive,10 fundamentally changed the policy from one requiring the discharge of all homosexuals to one requiring the discharge only of those homosexuals likely to engage in homosexual acts. See J.A. at 338-39 (Secretary Aspin news conference) (“[W]e’ve eliminated the word ‘desire’ to emphasize that the statement must be one that shows a likelihood to engage in acts.”). The change of the word “desire” in the pre-1993 Directive to the statutory term “propensity” was regarded by Congress, however, as only a “minor drafting clarification” never intended to “affect the practical effect of the policy,” S.Rep. No. 112 at 289-90, as the Deputy Attorney General herself observed at the time, see id. at 290.
Although noting that the change was not intended to have any “practical effect,” the committee did, as well, refer to the drafting-change as a “useful clarification.” Id. Seizing upon this observation, the Solicitor General argues that the usefulness of the change was in its clarification that the focus of the new policy, like the prior policy, is on the likelihood of future homosexual acts, not merely on homosexuality. This argument is plausible, however, only if one accepts the Solicitor’s mistaken premise that the prior policy was itself concerned only with homosexual acts; but if one appreciates that the prior policy was clearly status-based, as I believe the Solicitor must, see Gov’t Supp. Br. at 6 (noting that committee viewed change as “useful,” but omitting any reference to committee statements that change was not to have any practical effect), then it can hardly be maintained that a change which fundamentally altered the policy to one that was entirely conduct-based was merely a “minor drafting clarification” never intended to “affect the practical effect of the policy.”
Considering that the prior policy was unmistakably addressed to homosexuality per se, rather than the likelihood of conduct, and considering that the Administration had nonetheless argued, by equating “desire” with “a likelihood of future conduct,” 11 that the prior policy was addressed to conduct, it is, if anything, more believable that Congress thought the clarification “useful” as a reiteration that the policy inquired exclusion of all homosexuals, not only those who are likely to engage in homosexual conduct. That is, it may well be that Congress concluded that, because propensity connotes neither volition nor longing, this term would not be as susceptible to the Administration’s transmogrifi-cations as “desire” had proven to be.12
C.
The Solicitor General attempts to defend the regulation on the grounds both that it is a reasonable interpretation of an ambiguous statute and that it was necessary to remedy the constitutional infirmity of the statute. Neither of these asserted justifications is sufficient to uphold the regulation.
*945The Solicitor General first asserts that even if “propensity” does not mean “a likelihood” of future conduct, the agency’s definition is nonetheless entitled to deference as a reasonable interpretation by the agency charged with the statute’s administration. This is not, however, an instance where deference to an agency’s regulatory interpretation of a statute is appropriate: Because the statute unambiguously requires the discharge of all known homosexuals, a regulation that limits discharge to only those known homosexuals who are likely to engage in homosexual acts is per se unreasonable. Nor, given that the President does not attempt to defend the regulatory modification on the ground it is needed in the interest of national security, is this a case where the Executive must be afforded deference, despite contrary congressional action, because of the President’s preeminent role in matters of national security, see U.S. Const. Art. II, § 2; cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20, 57 S.Ct. 216, 220-21, 81 L.Ed. 255 (1936). This is, rather, the archetype of the case described by Justice Jackson, where “the President takes measures incompatible with the expressed or implied will of Congress, [and] his power is [therefore] at its lowest ebb, for ... he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring); see also Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct. 2362, 2366, 76 L.Ed.2d 586 (1983) (“The Framers of the Constitution ... explicitly] grant[ed] plenary authority to Congress ‘To raise and support Armies’; ‘To provide and maintain a Navy’; and ‘To make Rules for the Government and Regulation of the land and naval Forces.’ ” (quoting U.S. Const. Art. I, § 8, els. 12-14)); Weiss v. United States, 510 U.S. 163,-, 114 S.Ct. 752, 760-61, 127 L.Ed.2d 1 (1994) (“Judicial deference ... is at its apogee when reviewing congressional decisionmaking in [the military context].... Congress has primary responsibility for the delicate task of balancing the [constitutional] rights of servicemen against the needs of the military.” (internal quotations omitted)).
The Solicitor General also attempts to defend the regulation on the grounds that it was necessary to avoid a question of the statute’s constitutionality,13 and is, for that reason, permissible. However, an agency of unelected officials has no authority to alter the plain commands of the Congress simply because, in its view, questions exist as to the constitutional validity of a such a statute. Cf. Concrete Pipe & Prods. v. Construction Laborers Pension Trust, 508 U.S. 602, 628-29, 113 S.Ct. 2264, 2282-83, 124 L.Ed.2d 539 (1993) (“[I]n a case of statutory ambiguity, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.’ ” (quoting Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988))). This is especially true where, as here, Congress explicitly considered, at length, the constitutional validity of its action, and concluded that it was well within its constitutional authority. See Gov’t Br. at 20 (“Congress specifically concluded that the new policy does ‘not violate the constitutional rights of [homosexuals].’ ” (quoting S.Rep. No. 112 at 284)).
D.
The Administration vehemently argues, and Lt. Thomasson on occasion agrees, that the validity of the regulation is not before the court and should under no circumstance be addressed by the court. See, e.g., Gov’t Supp. Br. at 3.14 These protestations are to *946be expected, but they are unavailing. Lt. Thomasson makes two separate arguments in challenging the. military’s policy, not one. The first, which the majority ably addresses, is that the policy, defined collectively by the statute and the regulation, is unconstitutional because it irrationally presumes prohibited conduct from a mere statement of status. The second, which the majority does not address, is that the military’s policy is wholly status-based because the conduct-based regulation is invalid under the statute, and, without the regulation, the statute unconstitutionally authorizes the discharge of homosexuals solely on the basis of their status as homosexuals.
The Administration defends against Thom-asson’s argument that the policy is status-based entirely on the ground that the policy is conduct-based by virtue of the regulatory definition of the statutory term “propensity." 15 Lt. Thomasson responds that, to the extent this is so, the regulation is but “law-yerly afterthought” and “definitional trickery.” Appellant’s Br. at 26; Appellant’s Reply Br. at 19. This is necessarily to draw into question the validity of the regulation.16 Otherwise, Lt. Thomasson’s argument that the policy is entirely status-based is patently specious, because, as the Administration notes, it is contradicted by “the plain regulatory language.” Gov’t Br. at 23.
IV.
Because I would invalidate the regulation, I must address whether the statute’s mandatory exclusion of known homosexuals is constitutionally permissible. Under rational basis review, this exclusion must be sustained if both of the distinctions implicit in the statute — that between homosexuals and heterosexuals and that between known and undetected homosexuals — are rationally related to a legitimate governmental interest. Heller v. Doe, 509 U.S. 312, 318-19, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993).
*947Although not required under rational basis review, see id. at 321, 113 S.Ct. at 2643 (“[The Government] has no obligation to produce evidence to sustain the rationality” of the Act; “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”), Congress made legislative findings more than sufficient to demonstrate that the exclusion of known homosexuals from military service both serves a legitimate governmental interest and is rationally related to that interest.
Congress concluded, in findings that are fully supported in the legislative record, see, e.g., S.Rep. No. 112 at 274-75 (recounting General Schwarzkopfs testimony that unit cohesion “is the single most important factor in a unit’s ability to succeed on the battlefield”), that “[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion,” 10 U.S.C. § 654(a)(6), and that “unit cohesion,” defined as “the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members,” was “[o]ne of the most critical elements in combat capability,” id. at § 654(a)(7). It cannot be gainsaid that the development and preservation of unit eohesiveness essential to combat capability is a legitimate — indeed, compelling — governmental interest.
Nor can it be successfully maintained that the exclusion of known homosexuals because of the effect that their manifested sexual attraction for members of the same sex has on unit cohesion does not satisfy the minimal requirement that the exclusion rationally further the government’s legitimate interest in preserving unit eohesiveness.17 In assessing the rationality of the relationship between Congress’ objective and its means, “significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it,” see Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 28, 96 S.Ct. 2882, 2898, 49 L.Ed.2d 752 (1976), and the burden is on he who challenges the governmental action “to negative every conceivable basis which might support it,” Heller, 509 U.S. at 320, 113 S.Ct. at 2643.
Here, the Congress of the United States expressly found that “[t]he presence in the armed forces [of homosexuals, as statutorily defined] would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” 10 U.S.C. § 654(a)(15); see also S.Rep. No. 112 at 289 (“The July 19 Memorandum carries forward longstanding Department of Defense policy[;] ... [it] makes it clear that the mandatory discharge policy is necessary because such matters interfere ‘with the factors critical to combat effectiveness, including unit morale, unit cohesion, and individual privacy.’ ”). This finding is in turn supported by, inter alia, the unequivocal testimony of our military leaders, testimony which bears repeating. As General Powell testified,
the presence of open homosexuality would have an unacceptable detrimental and disruptive impact on the cohesion, morale, and esprit of the armed forces.
... [0]pen homosexuality in units is not just the acceptance of benign characteristics such as color or gender of background. It involves matters of privacy and human sexuality that, in our judgment, if allowed to exist openly in the military, would affect the cohesion and well-being of the force. It asks us to deal with fundamental issues that the society at large has not yet been able to deal with.
Id. at 278, 281. And as General Schwarzkopf, who shared General Powell’s belief, testified:
[I]n my years of military service, I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit’s survival in time of war....
*948Id. at 280 (emphasis added); see also S. Hrg. 103-845 at 780 (testimony of Gen. Otjen) (“[Wlhen somebody identifies themselves as a homosexual ... that is disruptive to unit cohesion.”); Appellant’s Br. at 26 n. 25 (“The so-called ‘privacy’ and ‘sexual tension’ rationales — which are variations on the ‘unit cohesion’ theme, ... if valid at all, arise from the mere presence of homosexuals [in the military].”).
Given Congress’ conclusion that the mere presence of known homosexuals in the military undermines unit cohesiveness, the statutory ban on service by such persons is not just rationally related to the end of unit eohesiveness, it is narrowly tailored to achievement of that end. In fact, it is more narrowly-tailored to that end than was the policy embodied in the pre-1993 Directives, which, by allowing questioning of recruits about their sexual orientation and investigations into the homosexual propensities of service members, sought to ferret out even unknown homosexuals in order to discharge them fi’om military service. The policy therefore would pass constitutional muster even under heightened or strict scrutiny; it certainly passes under the rational basis review applicable to the classifications at issue in this case,18 as courts repeatedly held under the previous Directive, see, e.g., Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994) (en banc); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); cf. Woodward v. United States, 871 F.2d 1068 (Fed. Cir.1989) (upholding military’s pre-1982 exclusion of homosexuals), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir.1984) (upholding pre-1982 exclusion even were heightened scrutiny applicable); but see Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir.1994) (interpreting the prior policy as “conduct-based” because the ban on status raises constitutional problems), and as the Solicitor General candidly acknowledged before this court.19
V.
Because the Administration’s policy regarding homosexuals in the military, imple*949mented through regulation, is fundamentally different than the statute enacted by the Congress and signed into law, I would invalidate that policy as contrary to statutory mandate. I would, however, uphold the policy against military service by known homosexuals that was actually enacted into law by the Congress of the United States, as a permissible exercise of the Legislature’s plenary authority to prescribe regulations for the military.
Judges RUSSELL, WIDENER, WILKINS, HAMILTON and WILLIAMS join in this opinion.. President Clinton adopted an interim policy effective until July 15, 1993, that retained the prior ban on service by homosexuals, with two modifications: 1) new recruits would not be questioned about their sexual orientation; and 2) homosexuals who had not engaged in homosexual acts would be processed through separation from active duty, but would be placed in the Standby Reserve during the interim period. S.Rep. No. 112 at 268.
. Section 571(d) provides, in relevant part:
Sense of Congress. — It is the sense of Congress that—
(1) the suspension of questioning concerning homosexuality as part of the processing of individuals for accession into the Armed Forces under the interim policy of January 29, 1993, should be continued, but the Secretary of Defense may reinstate that questioning with such questions or such revised questions as he considers appropriate if the Secretary determines that it is necessary to do so in order to effectuate the policy set forth in section 654 of title 10, United States Code.
. “Homosexual act” is defined by the statute as:
(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).
10 U.S.C. § 654(f)(3). The relevant portion of the U.C.M.J. prohibits only "sodomy,” defined as "unnatural carnal copulation with another person of the same or opposite sex or with an animal.” Id. at § 925.
. See DoD Directive 1332.30, Enel. 1, ¶ 18 (March 4, 1994) ("Statement that a Member Is a Homosexual or Bisexual or Words to That Effect" defined as “Language or behavior that a reasonable person would believe was intended to convey the statement that a person engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.”).
. See also Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Comm, on Armed Services, 103rd Cong., 1st Sess. 753 (1993) (S.Hrg. 103-845) (testimony of Secretary Aspin) ("The point of rebuttable presumption is that if the issue comes to the attention of the authorities and the authorities say you have just said you are gay, you have the opportunity to present some evidence to the contrary.”); id. at 746 (Secretary Aspin answering "Correct” to Senator Bryan’s query: "So, the rebuttable presumption is a rebuttable presumption that the individual then, in effect, would carry the burden of establishing that he or she was not homosexual?”).
. Of course, a heterosexual would be subject to discharge under Article 125 of the U.C.M.J., 10 U.S.C. § 925, if the homosexual act he commits is sodomy.
. See also Memorandum for the President from Attorney General Janet Reno, Defensibility of the New Policy on Homosexual Conduct in the Armed Forces 1 (July 19, 1993), reprinted in S. Hrg. 103-845 at 706 ("The policy reiterates the prior Defense Department view that 'homosexuality is incompatible with military service because it interferes with the factors critical to combat effectiveness.' "); Appellant’s Br. at 26 ("[T]he long history of the policy — including even the recent legislative history surrounding the [1993] Act — establishes beyond any doubt that the chief concern among policymakers has always been to combat the mere presence of homosexuals in the ranks.” (citing, inter alia, Able v. United States, 880 F.Supp. 968, 976-80 (E.D.N.Y.1995))).
. The Solicitor General contends that there is a difference between a homosexual "orientation” *942and a homosexual "propensity” insofar as the likelihood that one will engage in homosexual acts is concerned, a difference the Administration has incorporated into its regulatory definition of "orientation.” See DoD Directive No. 1332.30, Enel. 1, ¶ 16 (March 4, 1994) (defining "sexual orientation” as "[a]n abstract sexual preference for persons of a particular sex, as distinct from a propensity or intent to engage in sexual acts”). I do not know what homosexual orientation is, if it is not the propensity to commit homosexual acts; indeed, I do not understand how one even knows that he has a homosexual orientation except by realizing that he has a propensity toward the commission of homosexual acts. See Able, 880 F.Supp. at 975 (characterizing the distinction between "orientation” and "propensity” as "Orwellian”). But if there are indeed persons who are homosexually oriented but do not have a homosexual propensity, I would agree that the statute does not require their discharge, at least under the statements provision. I would also agree that if, as Deputy Attorney General Gorelick testified, a homosexually-oriented person is merely an undetected homosexual, the statute accepts the continued service of such persons as a consequence of the compromise that service members would not be asked about their sexual orientation. See S. Hrg. 103-845 at 808 (Gorelick testimony); see also Memorandum for the President from Attorney General Janet Reno, Defensibility of the New Policy on Homosexual Conduct in the Armed Forces 1 (July 19, 1993), reprinted in S. Hrg. 103-845 at 706 ("[Hjomoscxual conduct (but not an unmanifested orientation) would be grounds for separation from service.”).
. See also DoD Directive 1332.30, Enc. 2, ¶ C (March 4, 1994) ("A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member’s sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.”).
. The statute now defines ‘'homosexual" as "a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms ‘gay’ and 'lesbian.' ” 10 U.S.C. § 654(f)(1) (emphasis added). The pre-1993 Directive defined "homosexual" as "a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts.” DoD Directive 1332.14 (March 9, 1982), reprinted in 32 C.F.R. Ch. 1, Pt. 41, App. A, V H.l.b.(l) (1994) (emphasis added).
. See, e.g., Gov’t Br. at 10 (July 30, 1993), Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir.1994) (No. 93-55242) ("The regulatory language, DoD’s reasonable interpretation, and judicial precedent make plain that the [pre-1993] policy targets members who have engaged or ... will likely engage in homosexual conduct. The policy targets homosexual 'conduct — past, present, and future, but conduct nonetheless.' " (citing Watkins v. United States Army, 847 F.2d 1329, 1362 (9th Cir.1988) (Reinhardt, J., dissenting))); cf. Steffan v. Perry, 41 F.3d 677, 687 n. 7 (D.C.Cir.1994) (en banc) ("The Ninth Circuit [in Meinhold ] construed the ‘desires’ language to mean something akin to intent.”).
.Compare Webster’s Dictionary at 612 (defining "desire” as "1: conscious impulse toward an object or experience that promises enjoyment or satisfaction in its attainment ... 2 a: an enduring and passionate longing or intense yearning: an urgently impelling motive toward attainment: CRAVING, APPETENCY ... b(l): a strong physical inclination (2): erotic urge: sexual attraction or appetite .. . c: a striving after in intent: a deliberate choice or preference”) with id. at 1817 (defining "propensity” as "a natural inclination: innate or inherent tendency").
. See Gov’t Br. at 23-24 (“[T]o the extent that the military’s reasonable construction of the term ‘propensity’ avoided a serious question regarding the constitutionality of this statutory provision, the district court was all the more required to defer to that construction.” (citing Concrete Pipe & Prods. v. Construction Laborers Pension Trust, 508 U.S. 602, 627-30, 113 S.Ct. 2264, 2282-83, 124 L.Ed.2d 539 (1993))); see also id. at 16 (arguing against strict scrutiny because "[t]he classification here is directed at homosexual 'acts and the likelihood of acts’ ”).
. Lt. Thomasson does, at times, purport not to challenge the regulation. See, e.g., Appellant’s Rule 28(f) Supp. Mem. at 12 (merely noting that *946an argument raised by amicus, curiae is not necessarily before the court); id. at 2, 5. But see Appellant's Resp. to Mot. of Amicus Curiae Family Research Council for Leave to Participate in Oral Argument at 2 & n. 1 (expressly representing that he challenges validity of regulation). He docs so, however, for what I regard as the same transparent reasons that underlie the Solicitor General's entreaties that the regulation is not before us. Although Lt. Thomasson recognizes that he must challenge the regulation in order to challenge the statute’s exclusion of homosexuals on grounds of status, he nevertheless prefers, should the statute be upheld, that the regulation remain intact because of the sanctuary it creates. Under these circumstances, to acquiesce in the collaborative argument by the parties that we should not address the validity of the regulation would, in my judgment, be to allow ourselves, as judges, to be used as pawns in a political game between players with only putatively different interests.
. See, e.g., Gov't Br. at 11 ("The legislative classification in 10 U.S.C. 654(b)(2) — barring service by members who state that they are homosexuals and who fail to demonstrate that they do not and are not likely to engage in homosexual acts — does not violate equal protection.”); id. ("[T]he Government has a legitimate interest in prohibiting homosexual acts in the military. To avoid the risk to military effectiveness posed by such acts, Congress enacted a classification that reasonably presumes — subject to rebuttal by the service member — that a member who states that he is a homosexual is likely to act consistently with his sexuality and engage in prohibited homosexual acts.”); id. at 12 ("Thomasson’s claim that the statute violates the First Amendment also lacks merit.... The new policy treats a service member’s statement of homosexuality as a basis from which to presume, in the absence of rebuttal by the member, that he engages in, or is likely to engage in, homosexual acts. The First Amendment docs not prohibit such evidentiary use of a member's statements.”); id. at 13 ("Thomasson argues (Br. at 34) that heightened scrutiny should apply because the policy is directed, he contends, at 'sexual orientation.' As we show infra, pp. 22-24, however, this argument fundamentally misapprehends the relevant classification, which the district court correctly held is directed at homosexual 'acts and the likelihood of acts.' ”); id. at 22 ("The Directives equally make clear that the new policy is conduct-directed and does not target orientation.”); id. at 23 ("Thomasson's repeated assertion, (.e.g., Br. 24, 33-37) that the policy classifies on the basis of homosexual orientation cannot be reconciled with the plain regulatory language that equates 'propensity' with 'likelihood.' ” (emphasis added)).
. Reno v. Koray, — U.S. -, -n. 2, 115 S.Ct. 2021, 2024 n. 2, 132 L.Ed.2d 46 (1995), urged upon us by both the government and Lt. Thomasson as authority against our consideration of the validity of the regulation, does not in any way suggest that we should abstain from consideration of this question. In that case, unlike in that sub judice, the plaintiff had abandoned his constitutional argument altogether.
. Obviously it is this propensity, this attraction for members of the same sex, that, at once, renders permissible the military's exclusion of homosexuals in order to preserve unit cohesion and also distinguishes the ban on homosexuals from what would be an emphatically impermissible policy of excluding service members based upon, for example, race.
. Jacobson v. United States, 503 U.S. 540, 551-52, 112 S.Ct. 1535, 1541-42, 118 L.Ed.2d 174 (1992), and Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), which held unconstitutional the criminal punishment of individuals based upon a presumption of action from mere status or predisposition, do not dictate otherwise. Discharge from military service is not "punishment,” as the District of Columbia Circuit observed in Steffan, 41 F.3d at 687. See also Gov't Br. at 30 ("Jacobson was a criminal prosecution, which involves restrictions not applicable to military personnel decisions.”). In any event, the statute as written does not presume likely conduct from status, but merely homosexual propensity (that is, inclination or attraction) from a statement or other manifestation of homosexuality.
. THE COURT: Does the United States believe that if this regulation permits the discharge of someone who is homosexual, irrespective of conduct, then the regulation is invalid?
' COUNSEL: No.
THE COURT: So in other words ... [t]he military and Congress can provide for the discharge of any individual who is homosexual in the view of the Department of Justice; is that correct, Mr. Kneedler?
COUNSEL: Well, this case does not present that.
THE COURT: I understand that.
COUNSEL: And that yes, in the sense that the — that the military is entitled to make a judgment that an expression ... that one is homosexual has a correlation at least, as the D.C. Circuit said in Steffan, a correlation that that—
THE COURT: My question is: Suppose there’s no correlation. Irrespective of conduct, may the military discharge homosexuals in the view of the Department of Justice constitutionally?
COUNSEL: That would present — That would present a more difficult question. We acknowledge that—
THE COURT: Does the United States have a position on that? Because in my view that’s what Congress intends. And the question is whether the executive branch has attempted to circumvent that through the regulations. So I may have to face that question, and I need the Department's view on that.
THE COURT: Does the United States have a position on the question I asked; or does it not? It may not. I’m just asking.
COUNSEL: We believe that such a policy would be comtitutional. But we acknowledge that because of the overriding needs of the military, we believe that such a policy would be constitutional.
Transcript of Oral Argument, Sept. 12, 1995, at 44-47 (emphasis added).