(dissenting):
In affirming the supplemental order of the National Labor Relations Board, the majority essentially makes two points. First, it asserts the Board engaged in reasoned analysis in arriving at opposite results in Santini and Molloy. Second, it observes that the prohibition against post hoc rationalizations does not automatically preclude affirming a clarified order. I disagree with the first assertion and, although I agree with the the second, fail to see its pertinence. The issue is not whether clarified administrative orders are ever sufficient, but whether this one is.
I dissented from the initial decision to remand the record for clarification. Having concluded from a variety of factors that the Board had failed to give the cases under consideration the necessary “hard look,” I recommended a broader remand to enable the Board to reconsider “the doctrinal quicksand” in the entire area. 512 F.2d at 572. Secondarily, I hoped to persuade the Board to avoid the temptation of offering a sterile post hoc rationalization. Unfortunately, my hopes appear not to have been realized.
Judicial review of agency determinations is limited. Where the reasons for the agency’s decision are clearly articulated, and the decision reached is rational,1 judicial deference is appropriate.2 Here, even though a majority of the Board found seven factual distinctions between Molloy and Santini there is no reasoned discussion as to why the distinctions are significant. The Board does suggest that in Molloy, unlike in Santini, there was a “layer of carrier regulation put upon the [owner-operators] beyond what was required by government regula*227tion.” (Supp. order p. 3.) However the Board never explains how substantial this layer must be in order for drivers to be considered employees rather than independent contractors or, in fact, why the extra layer imposed in Molloy distinguishes that case from Santini in light of their numerous similarities. Nor does the Board attempt to justify its results in terms of the policies of the National Labor Relations Act.
Although little would be served by once again examining the facts in depth, see 512 F.2d at 568-70 (Bazelon, C. J., concurring in part, dissenting in part), a brief glance at some of the factual distinctions relied on by the Board would be instructive. One distinction, for example, does not seem to be a distinction at all. The Board notes that the Molloy driver’s manual lists punishments for such infractions as preventable accidents and dishonesty but that Santini has no such manual. Are we to conclude from this that Santini does not punish reckless or dishonest drivers? The significance of another distinction is not obvious. The Board observes that Santini has its own operating authority from the Interstate Commerce Commission, but that Molloy uses Allied Van Lines’ certificate. But does this fact by itself establish that Molloy asserts greater control over the day-to-day activities of its drivers than Santini? Perhaps there are significant differences between Santini’s and Molloy’s right of control over their drivers, but the supplemental order does not show this to be the case.
In sum, I do not believe the Board’s supplemental order should be affirmed. No two snowflakes are identical, but for most purposes are considered indistinguishable. Here the Board distinguishes two snowflakes without explaining in terms of the policies of the Labor Act why it has done so. Because other companies concerned about whether their drivers are employees or independent contractors will find no guidance in the Board’s decisions, I would, as I said before, remand the record “for a thorough reconsideration of the doctrinal quicksand in this area.” 512 F.2d at 572.
. See, e. g., NLRB v. United Ins. Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968).
. See generally, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied 403 U.S. 923, 92 S.Ct. 2233, 29 L.Ed.2d 701 (1971).