dissenting.
The decision of the Court of Federal Claims holding that the government breached its contracts with the plaintiffs (Owners) should, in my view, be affirmed. The Court of Federal Claims (CFC) correctly held that the Owners were promised the right, and therefore entitled, to prepay their mortgages on these low and moderate-income housing projects without HUD approval after twenty years, as set forth in Rider A to the Deed of Trust Notes. This contract right was breached when Congress enacted statutes, commonly referred to as ELIHPA and LIH-PRHA, that prevented them from prepaying their mortgages without HUD’s approval.
The majority holds there was no privity of contract between HUD and the Owners. Even though Rider A to the Notes expressly provided that the Owners could elect to prepay the mortgage after twenty years without HUD approval, the majority reasons that this does not bind the government because *1137the Notes were contracts between the lenders and Owners and were only endorsed for insurance by HUD. The majority also holds that the Owners cannot rely on the provisions of the HUD regulations in effect at the time these transactions took place, which also permitted prepayment without HUD approval after twenty years, because the regulations were amendable. I think the majority has reached the wrong conclusion in each instance.
In analyzing each of the pertinent agreements separately, the majority has not considered critical factors which support the CFC’s conclusion that the government intended and in fact did bind itself to the prepayment provisions. Principally, these factors are the overall purpose and nature of the transactions, the intent of the parties, the terms and conditions of HUD’s Commitments for Insurance of Advances, and the references in the HUD’s Commitments and endorsements of the Notes to specific, dated HUD regulations governing these transactions.
A.
The purpose of the HUD low and moderate-income housing programs fully supports the CFC’s decision. At the time these transactions occurred, Congress and HUD were encouraging private parties to construct low and moderate-income housing with subsidized or low interest rate loans guaranteed by the government. See, e.g. H. Rep. No. 90-1585 at 2, 21 (1968). In turn, the Owners were severely restricted as to the rents they could charge and the income they could earn from these projects. See 24 C.F.R. § 207.253(a)(2)(1970). These disincentives were offset, however, by the fact that after twenty years the Owners would be permitted to repay the mortgages without prior approval of HUD and at the same time be relieved from the government’s rent and profit restrictions. Thus, after the twenty year period, the Owners would be able to charge market rates for the housing units. It is undisputed that the Owners, lenders and HUD all entered into these transactions with the full knowledge and intent that the Owners would repay the mortgages after the twenty year period if it was economically advantageous to them. See Cienega Gardens v. United States, 38 Fed. Cl. 64, 75 (1997).
The nature and mechanics of the transactions required by the HUD programs support the CFC’s decision as well. Projects under these programs were commenced by applying to HUD for the issuance of a Commitment for Insurance of Advances to the Owners and the lenders. In accordance with the regulations, both the Owners and the lenders had to make application for the Commitment. The regulations specifically provided:
An application for issuance of either a conditional or firm commitment for insurance of a mortgage on a project shall be submitted by an approved mortgagee and by the sponsors of such project.
See 24 C.F.R. § 221.502(a), § 236.5(a)(1970) (emphasis added).
The Commitments issued by HUD to the Owners, as well as the lenders, was in the nature of an offer to provide mortgage insurance when the specific requirements set forth in the Commitments were completed. HUD was then contractually obligated to place its insurance endorsement on the Notes.
The Owners were required to provide a number of documents and agreements, all of which were prescribed and/or approved by HUD as to form and content. Among these were the documents relating to the mortgage loan, including the Deed of Trust (FHA Form 4104-G) and the Deed of Trust Note (FHA Form 4104-e). In this connection, HUD furnished additional language to the Notes in the form of Rider A. Rider A specifically provided that the Owners could prepay the Notes after twenty years without HUD’s consent. The Rider also contained restrictions on prepayment by the Owners in the absence of HUD approval, during the first twenty years of the mortgage.
B.
The CFC carefully examined the nature and purpose of the low and moderate-income housing statutes and regulations, the specific documents executed to carry out the transactions and other evidence of record. Based on *1138all of the documents and evidence, the court determined that “when the parties ... entered into the regulatory agreement they also intended to be mutually bound by the prepayment rules set forth in the rider to the contemporaneous deed of trust note.” Cienega Gardens v. United States, 33 Fed. Cl. 196, 210 (1995). The court noted the various promises made by the Owners to HUD and the government’s concurrent promises to the Owners, as follows:
By signing the regulatory agreement and the deed of trust note to which the regulatory agreement referred, plaintiffs promised to construct and maintain housing in accordance with the HUD’s specifications, to accept only low or moderate-income persons as tenants, to charge no higher rents that those permitted by HUD, to distribute profits to shareholders in accordance with specified limitations, to make timely payments on their mortgages and to maintain cash reserves to self-insure against mortgage default. These promises were made expressly to and for the benefit of the government, not third parties. In exchange, the government agreed to endorse and insure the mortgages (allowing plaintiffs to obtain either subsidized commercial loans or loans at favorable interest rates) and to allow plaintiffs to free themselves of HUD’s regulatory strictures after the first 20 years. Accordingly, the court finds that Congress, by enacting ELIHPA and LIH-PRHA, breached the government’s contracts with plaintiffs with respect to their prepayment rights.
Id. at 210.
In reaching the conclusion that contracts between HUD and the Owners had been breached by the enactment of ELIHPA and LIHPRHA, the Court of Federal Claims considered whether Rider A to the Notes created contractual rights between HUD and the Owners and whether there was privity of contract as to these provisions. The court expressly found that the provisions of Rider A were intended to create contractual rights between these parties, even thought the named parties to the Notes were the Owners and the lenders. It reasoned that there was privity of contract between the Owners and HUD as to the prepayment provisions because mutual rights and obligations were set forth in the Rider. The court stated:
As discussed earlier, the rider gave HUD the right to approve or disapprove prepayment prior to the first twenty years following HUD’s endorsement, and the rider allowed prepayment without HUD approval after the first twenty years. Despite the fact that HUD was not a named party the deed or trust note — the fact upon which defendant’s privity argument rests — the rider gave the lender no right whatsoever to interfere with an owner’s plan to prepay. The rider gave that power only to HUD, and only permitted such interference during the first 20 years of the mortgage. Because the rider specifically allocated certain rights between HUD and plaintiffs, the fact that HUD was not a named party (except as an endorser) to the deed of trust note containing the rider is not dispositive of the issue of privity of contract between the parties in this action. The government’s participation as a party to the deed of trust note is unnecessary to establish privity of contract with respect to plaintiffs prepayment rights.
Id. at 209-210 (emphasis added).
The CFC concluded that the parties, including HUD, intended to be bound by the prepayment provision set forth in Rider A. The court’s effort to find the parties’ intent based on all of the documents and the surrounding facts and circumstances was entirely appropriate in complex integrated transactions of this sort, where multiple parties executed multiple documents at closing. Here, there were two such closing sessions, the first when HUD gave its initial endorsement permitting the projects to be constructed and the second when HUD gave its final endorsement after the projects were completed.
The fallacy in the majority’s analysis is that it has considered each of the documents necessary to fulfill the term of the Commitments in virtual isolation. By narrowly interpreting each agreement in this standalone fashion, I think the majority has come to the wrong result as to the Owners’ privity with HUD and as to HUD’s intention and *1139contractual obligation at the time these agreements were executed.
Accordingly, I would accept the Court of Federal Claim’s factual findings that the relevant parties, HUD and the Owners, intended to bind themselves to the prepayment provisions as set forth in Rider A.
C.
I am also convinced that the Commitments and subsequent endorsements by HUD of the Notes in these transactions establish as a matter of law the requisite privity between the Owners and HUD to find an enforceable express contract as to the prepayment right. As noted above, HUD’s Commitment was issued to the Owners as well as to the lenders. It provided that if the enumerated conditions were met and the required documents in the form prescribed or approved by HUD were furnished and executed to HUD’s satisfaction, HUD would be obligated to insure and endorse the Notes. One of the HUD approved provisions was Rider A. In Rider A, HUD obtained control in a contractual document over any proposed prepayment by the Owners during the first twenty years of the mortgage, and because this control was set forth in the Notes themselves the lenders were put on notice of HUD’s controlling position. Similarly, the Owners’ prepayment rights after twenty years were made known to the lenders.
When HUD endorsed the Notes with these provisions, HUD was fulfilling its Commitment obligations and thereby giving approval to all of the underlying documents and executed agreements that were conditions to its endorsements. Because HUD sought to obtain, and did obtain in the Notes that it approved, the right from the Owners for this control over any proposed prepayment until after the 20th year, it effectively became a party by its endorsements of the Notes as to the prepayment provisions. In my view, the privity of contract as to the dominant Commitment contracts carried over to the underlying documents HUD required for its endorsements and insurance of the Notes insofar as those documents contained provisions benefiting HUD or in which HUD approved rights beneficial to the Owners.
D.
Finally, the judgment of the Court of Federal Claims should, in all events, be affirmed because the Owners were entitled to prepayment rights after twenty years under the provisions of the HUD regulations in effect at the time HUD issued its Commitments and endorsed the Notes. The majority has rejected this position on the ground that the regulations contained a section permitting the regulations to be amended. Because these transactions were consummated under the provisions of regulations in effect as of specific dates, I believe the majority has erred.
In the HUD Commitments accepted by the Owners, which as noted were the dominant contracts, HUD expressly stated that the insurance endorsements would be made under the pertinent provisions of the National Housing Act and “the Regulations thereunder now in effect.” (Emphasis added.) When HUD endorsed the Notes the endorsements contained written or typed in dates, corresponding to the Commitment dates, showing that the endorsements were made under the regulations “in effect” on the Commitment dates. These provisions indicate that HUD did not intend that any subsequent amendment to the regulations would be applicable to the particular Commitment contracts and Note endorsements. It is undisputed that the regulations referred to in these documents expressly permitted Owners to prepay their mortgage notes after twenty years without HUD’s consent and thereby be relieved of restrictions on rentals and profits.
Contrary the majority’s holding, the fact that HUD reserved the right in 24 C.F.R. §§ 221.749, 236.249 (1970) to amend its regulations respecting prepayment generally does not permit it to do so when the Commitments as well as the Note endorsements provide that the regulations in effect on a specific date were to be applicable. The judgment of the Court of Federal Claim is also sustainable on the grounds that the prepayment provisions of the regulations in effect on the *1140date of HUD’s Commitments were controlling and binding on the government.