concurring:
While I join all of the court’s opinion, I write separately to express my opinion that Bell Atlantic Telephone Cos. v. FCC, 24 F.3d 1441 (D.C.Cir.1994), was wrongly decided and ought to be overruled.
Our opinion in Railway Labor Executives’ Ass’n v. United States, 987 F.2d 806, 815-16 (D.C.Cir.1993) (per curiam), issued shortly before Bell Atlantic, summarized the governing principles: “The Fifth Amendment guarantees that when the government takes private property, it will *101provide just compensation. Under the Tucker Act, 28 U.S.C. § 1491(a), the United States Court of Federal Claims has original jurisdiction over suits seeking compensation from the United States under the Constitution. Except for eases in which the amount in controversy is less than $10,000, in which event jurisdiction is concurrent with the federal district courts, see 28 U.S.C. § 1346(a)(2), the Federal Claims Court’s jurisdiction in such actions is exclusive. ‘[TJakings claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.’ Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).”
“... The Taking Clause does not prohibit the government from taking private property. The Clause requires only that the government accomplish the taking in a particular way, namely, by paying for the property. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-15, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1020, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). There is no constitutional necessity for payment to be made in advance, at least so long as the government provides a way for the property owner to recover just compensation after the taking is completed. See Ruckelshaus, 467 U.S. at 1016, 104 S.Ct. 2862. As we have said, those adversely affected by the Commission’s action may pursue their claims in the Federal Claims Court or, depending on the amount at stake, in the federal district courts.”
“There is nothing to petitioners’ further point that, at the least, we ought to construe [the statute] to avoid the possibility that the [agency] has effectuated a taking in this case. The argument may rest on the familiar canon that if one permissible interpretation of statute would render it unconstitutional and another permissible interpretation would make it constitutional, the latter should prevail because the judiciary should not assume Congress meant to violate the Constitution. Blodgett v. Holden, 275 U.S. 142, 147-49, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (opinion of Holmes, J.). Or the argument may rely on the more debatable canon of construing statutes to avoid constitutional doubts. Compare Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), with Rust v. Sullivan, 500 U.S. 173, 190-91, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). But these canons do not fit. Because just compensation is presumptively available under the Tucker Act, there is neither an unconstitutional result nor a constitutional doubt to be averted by interpretation. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127-28, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).”
Doubtless in recognition of these principles, Bell Atlantic begins with a disclaimer and then adds a qualifier: this court has no “power” to decide whether an agency regulation or rule “inflicted” a taking of private property within the meaning of the Fifth Amendment to the Constitution — if the regulation was within the agency’s statutory authority. 24 F.3d at 1444 n. 1. How to determine the “if’? According to Bell Atlantic, not in the usual deference-laced manner because “statutes will be construed to defeat administrative orders that raise substantial constitutional questions,” id. at 1445. That point is directly contrary to Railway Labor’s recognition that there is no constitutional doubt to be avoided. And it is also directly contrary to the Supreme Court’s holding in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 128, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), that “the possibility that the application of a regulatory pro*102gram may in some instances result in the taking of ... property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred.”
Bell Atlantic's other rationale for adjudicating whether a regulation would take property, and for construing the statute to prevent this, stems from a footnote in Riverside Bayview Homes, Inc., 474 U.S. at 128 n. 5, 106 S.Ct. 455. The Supreme Court there distinguished United States v. Security Industrial Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982), on the basis that statutory interpretation might be affected if “there is an identifiable class of cases in which application of a statute will necessarily constitute a taking.” The Court described Security Industrial Bank as a case in which a narrowing construction was appropriate because “a particular provision of the Bankruptcy Code would in every case constitute a taking.” Id. This is reflected in the Court’s expression of doubt in Security Industrial Bank whether so applying a Code provision “comports with the Fifth Amendment.” 459 U.S. at 78, 103 S.Ct. 407. Given the Court’s analysis in Riverside Bayview — namely, that only an uncompensated taking of private property could violate the Fifth Amendment — the statement in Security Industrial Bank just quoted has to mean that there would have been no just compensation for the threatened takings, or that the Court thought there would not be. This reading is supported by Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935), the case Security Industrial Bank relied upon and reaffirmed. Radford invalidated a retroactive change in the bankruptcy laws permitting debtors to retain their property more easily because the “Act as applied ha[d] taken from the Bank without compensation.” Id. at 601, 55 S.Ct. 854 (emphasis added).
In this case there is no doubt that if a taking occurs as a result of the Commission’s rule, the property owner may receive just compensation. See maj. op. at 100. To my mind, that ought to end the takings inquiry. I recognize that Bell Atlantic treats the matter very differently: “Chevron deference to agency action that creates a broad class of takings claims, compensable in the Court of Claims, would allow agencies to use statutory silence or ambiguity to expose the Treasury to liability both massive and unforeseen.” Bell Atlantic, 24 F.3d at 1445. In other words, the fact that compensation would be available is a reason for a narrowing construction — the opposite of. what the Supreme Court held.
But my disagreement with Bell Atlantic's theory rests on more than just its misreading of the Supreme Court’s opinion in Riverside Bayview. It is not clear to me how, in many instances, we could determine whether an agency rule would bring about a taking in a “broad” class of cases (a term not used in Riverside Bay-view). Bell Atlantic makes no distinction between regulatory and per se takings; whether a regulatory taking has occurred may depend on the “background principles” of each state’s property law. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In how many states, or in how many instances, there must be a taking before we find a “broad class of takings” under Bell Atlantic is a mystery.
I also disagree with the rationale, relied upon in Bell Atlantic, that it is the business of the federal courts to protect the government from some imagined risk of agency encroachment on Congress’s taxation and appropriations powers. By passing the Tucker Act, Congress generally bound itself to paying for authorized takings by the federal government, regardless whether the specific liability in any partic*103ular case was intended or foreseen. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). While it may be the case that the courts must protect one branch from the aggrandizing actions of another, see generally Mistretta v. United States, 488 U.S. 361, 380-84, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (collecting' cases), surely it is not the case that the courts must protect Congress from creating responsibilities for itself (so long as they do not detract from the other branches’ powers or violate the delegation doctrine). Since the political branches have made a legislative choice to accept federal liability for takings, the federal courts must respect that determination. Besides, if Congress disagrees with an agency’s subjecting the Treasury to liability through taking claims, it can always reverse the agency’s rule through legislation, either before the rule takes effect, see Congressional Review Act, Pub.L. No. 104-121, tit. II, § 251, 110 Stat. 868 (1996) (codified at 5 U.S.C. §§ 801-808), or afterwards.
Given the opportunity, I would vote to overturn Bell Atlantic.