specially concurring:
I concur in the results reached in Part I but write separately to express misgivings about the court’s preemption analysis under the Airline Deregulation Act (“ADA”); I concur in Part II without reservation.
I
The majority concludes that a distinction between “services” and “operations and *1409maintenance” is mandated by a provision which Congress added to the ADA in 49 U.S.C. § 1371(q)(l) (recodified as 49 U.S.C. § 41112(a)). In light of this statutory provision and this court’s decision in Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir.1995), the majority constructs a seemingly simple rule: while the regulation of “services” is preempted by the ADA, the regulation of “operations and maintenance” is not. Although this rule is consistent with the result reached by the only federal appellate court to have yet addressed this issue, Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.1995) (en banc), I regret that the rule’s emphasis on a few words taken out of context needlessly muddles our preemption jurisprudence.1
I agree with the majority that the Harris decision is contrary to the weight of authority interpreting ADA preemption; nonetheless, this court is bound by the Harris holding that a common law negligence action constitutes a state’s enactment or enforcement of a law, and is therefore preempted if it relates to the “price, route, or service of an air carrier.” However, this court is not bound by the Hodges distinction that actions preempted because they “related to services” did not include “state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft.” Hodges, 44 F.3d at 336 (emphasis added). The Fifth Circuit’s distinction between services and operations is problematic.
Because the majority’s rule will no doubt yield confusing and conflicting results in the future, I write separately to emphasize that the only proper framework for evaluating preemption claims is Congressional intent. See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (holding that the purpose of Congress is the “ultimate touchstone” of the preemption analysis).
II
The majority’s distinction between airline services and aircraft operations and maintenance is misguided for two reasons. First, it is not supported by the Supreme Court’s two airline preemption cases: American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). In Wol-ens, the Supreme Court concluded that courts confronting this issue must determine whether the particular tort claims would interfere with the purpose of the ADA. The purpose of the statute, which includes § 1305(a)(1), was to “promote ‘maximum reliance on competitive market forces,’ ” Wolens, 513 U.S. at 230, 115 S.Ct. at 824 (quoting Morales, 504 U.S. at 378, 112 S.Ct. at 2034), and § 1305(a)(1) itself was intended to ensure that states did not re-impose public utility-style regulation on airlines. Indeed, Congress enacted the ADA “[t]o ensure that the States would not undo federal deregulation with regulation of their own.” Wolens, 513 U.S. at 222, 115 S.Ct. at 821 (quoting Morales, 504 U.S. at 378, 112 S.Ct. at 2034). Section 1305(a)(1) prohibits states from “im-pos[ing] their own public policies or theories of regulation on the operation of air carriers.” Id. at 229 n. 5, 115 S.Ct. at 824 n. 5 (quoting brief of United States as amicus curiae). I do not read these two cases to suggest that a state common law tort claim is preempted if it is related to airline services, but it is not preempted if it is related to aircraft operations or maintenance.
In California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., — U.S.-, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), the Supreme Court construed the scope of the “relating to” language in ERISA’s preemption provision, to which the Supreme Court looked for guidance in interpreting section 105 in Morales. In finding *1410no preemption of a state law mandating prevailing wages for apprentice employees, Dill-ingham unanimously emphasized that the words “relating to” should not be applied with “uncritical literalism,” but with an emphasis on the objectives of the statute and its effect on state law. Id. at-, 117 S.Ct. at 838 (internal citation omitted). Of note is a concurring opinion by Justice Scalia (the author of Morales), who was joined by Justice Ginsburg (the author of Wolens). After citing statements from earlier decisions to the effect that ERISA’s “relating to” language has an expansive sweep, Justice Scalia wrote that it would “greatly assist our function of clarifying the law if we simply acknowledged that our first take on this statute was wrong.” Id. at-, 117 S.Ct. at 843. In his view, “the ‘relate to’ clause of the pre-emption provision is meant, not to set forth a test for pre-emption, but rather to identify the field in which ordinary field pre-emption applies — namely, the field of laws regulating ‘employee benefit plan[s]’ ” described in ERISA. Id. (emphasis in original). In light of the Supreme Court’s preemption analysis in this recent case, this court’s (and the Fifth Circuit’s) test for airline preemption is archaic.
Second, a distinction between airline services and aircraft operations and maintenance is difficult to draw. For instance, the majority in Hodges had no difficulty viewing Hodges’ claim as related to operations rather than services, while two dissenting judges concluded that the opposite view was equally clear. Because the ADA offers no definition for the term “services,” courts are left to decide whether providing alcoholic beverages to intoxicated persons or warning passengers of the dangers of items falling from overhead compartments are related to an airline’s “services” or “operations.” As many an amateur philosopher has observed, everything is at least theoretically related to everything else. “For example, a damage claim by an airplane passenger hit by an article falling from an overhead bin would be preempted if the flight attendant dropped the article but not if the bin came open because of a latch that had not been properly maintained, or because the plane was jolted by turbulent weather. An airplane passenger who fell in an aisle would be prohibited from suing if the accident occurred when the passenger slipped on food dropped by a flight attendant, but not if the accident was caused by a sudden banking of the plane.” Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 284 (Tex.Sup.Ct.1996). I can find nothing in the history of the ADA or in Morales and Wolens to suggest that Congress intended such a hodgepodge of results.
Ill
Today’s opinion is no more likely than the Harris decision to bring clarity to the airline preemption field. We can avoid anomalous results, however, if the analytical framework rests on the regulatory effect of the state tort claim. The proper inquiry then is whether the state common law tort remedies have the effect of frustrating the purpose of deregulation by interfering with the forces of competition. If the state law does not have the requisite regulatory effect, then it is simply “ ‘too tenuous, remote, or peripheral a matter’ to have preemptive effect.” Morales, 504 U.S. at 390, 112 S.Ct. at 2040.
Because we should have set our own house in order, I decline to embrace the majority’s distinction between airline services and aircraft operations and maintenance.
. See Romano v. American Trans Air, 48 Cal. App.4th 1637, 56 Cal.Rptr.2d 428 (2d Dist.1996) ("[F]ocus on a few words taken out of context may lead to anomalous results, and it is our view that a more thoughtful, less quixotic rule emerges when the analytical framework is placed on the foundation of Congressional intent. This way, we do not parse the language of the statute but consider the economic motivation behind the ADA and look to whether the plaintiff's claim is 'related to a price, route or service.’ From this perspective, we see that where the airlines have a legitimate interest to protect (the right to advertise their rates, set their routes, determine whether to provide food service on a particular flight), the states cannot interfere. But where there is no legitimate interest needing protection — as is the case when the issue is negligence — there is no preemption.”) (internal citations omitted).