(concurring):
I join in the court’s en banc opinion insofar as it finds ripeness for review in Docket No. 73-1718, wherein petitioner Continental Air Lines, Inc. seeks review of the seating configuration policy evolved by the Civil Aeronautics Board in Phase 6A of its Domestic Passenger Fare Investigation.
I also join in the court’s remission of the merits of that review to the panel which first considered the matter. This does not betoken either agreement or disagreement with the panel’s conclusion. It signifies rather that the question is one, requiring study of the record and its significance, that would excessively displace the energies of the judges on the court en banc, each of whom is engaged in his own fair share of time-consuming and record-reading decisions to render on the merits.
I depart from the en banc court’s opinion in dismissing the petition to review in No. 73-1714, though I concur in that result. I agree that the circumstances of the particular suspension order greatly affect whether it falls within the general rule that suspension orders are not reviewable,1 or within the exception developed in Moss v. CAB for “sham” suspensions by an agency that engages in regulation in such a way as to avoid statutory procedures and the resulting judicial review.2
But for my part it was not the review in Docket No. 73-1718 but the review in 73-1714 that raised the kind of questions that merited en banc consideration. An irksome problem of judicial administration is presented if a panel of this court reviews and stays suspension orders, and notwithstanding concern over the court’s jurisdiction the matter lapses because, by the time the court en banc can deliberate, the suspension order, usually of 6-months duration, has expired. In my view the en banc court having heard oral argument, should reach the question whether the suspension order is reviewable under Moss. The fact that the particular facts are unique—as they always seem to be—is not dispositive. For many doctrines application depends on particular circumstances, yet particular cases are the means a court uses to define the general underlying approach that is sound.
Having said that, I add briefly that in my view the Moss doctrine is inapplica*25ble to the kind of case before us. That limited doctrine extends judicial power where an agency is using the suspension authority so as to avoid or limit the judicial review provided by Congress for its basic decisions. Here, however, the basic decision of the CAB was in its Order 72-5-101, embodying its final decision in Phase 6A, which was ripe and reviewable when rendered May 26, 1972. In that order it ruled that a carrier could offer 5-abreast seating at its basic fare level, although that was computed on a 6-abreast basis; that a 6-abreast carrier could file a lower tariff if it could demonstrate an “adverse competitive impact” from the 5-abreast service; and that the more commodious 5-abreast carrier could match the reduced fare only upon a showing of “special or unusual circumstances.” The validity of this approach was available for testing on judicial review pursuant to the Act for the reasons stated in the en banc opinion in Docket No. 73-1718, finding ripeness for review of order 72-5-101.
When on April 18, 1973, United filed a $10 fare reduction in the Chicago-Los Angeles market for non-lounge service, a move aimed at competition with Continental’s lounge service, it relied on the precedent of January 23, 1973, when the CAB permitted TWA to reduce its New York-Los Angeles fare by $10 for loungeless configuration, also a move aimed at lounge competition. On June 1, 1973, the Board issued the order that allowed United’s fare to go into effect, but suspended and ordered an investigation of Continental’s action in filing a $10 fare reduction matching United. The panel found this suspension order was reviewable, saying:
The suspension order, therefore, is a sham, designed to implement a policy and assertion of authority outside the Board’s statutory power. The Board cannot be allowed to cloak actions outside its authority in the guise of suspension orders and thus insulate them from judicial review and control.
With all respect, the doctrine of “sham” orders cannot be triggered by a ruling that the agency has exceeded its statutory authority. That obviously sweeps far too broad. The key ingredient in Moss was that the CAB in that case acted solely through suspension policy, so that its underlying rate policies could in no way be judicially reviewed. In the case before us the CAB declared the underlying rate policy in Order 72-5-101, and this final order in Phase 6A became judicially reviewable when issued in May 1972. Of course, the general May 1972 policy came on for specific applications, but these were not of such a character as to evade judicial review. Indeed, the court with jurisdiction of the petition to review the 1972 order (in Docket No. 73-1718) had authority to stay the enforcement of that rate policy either in general, or in the specific application that emerged in the Chicago-Los Angeles market. There was nothing sham about the June 1, 1973 order—it was merely a specific application of the policy publicly articulated in May 1972 after full procedure.
There is full authority in the court to discharge its plenary authority to review the agency’s general rule, and to protect that jurisdiction, without asserting an authority to review suspension orders. An extraordinary jurisdiction was evolved in Moss to handle the problem of an agency using suspension orders in such a way as to impose its regulatory will while avoiding the mechanism contemplated by Congress for judicial review. Care must be taken that this ex-? ception is not extended in such a way as to threaten the basic rule against judicial interposition into suspension orders by agencies. The exception has no proper application to this case.
Circuit Judges TAMM, MacKINNON, ROBB and WILKEY concur in the court’s opinion with respect to No. 73-1718, but would reinstate the division’s judgment and opinion in No. 73-1714 for the reasons stated therein.. United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963).
. Moss v. CAB, 139 U.S.App.D.C. 150, 159, 430 F.2d 891, 900 (1970).