(concurring in part and dissenting in part).
The majority opinion holds that the Federal Maritime Commission (FMC or Commission) has jurisdiction to determine whether shippers’ tariffs that incorporate the Rules on Containers violate the common carrier requirements of the shipping laws. At 180. I concur in this part of the opinion and in so doing reject the claim of the Council of North Atlantic Shipping Associations and the New York Shipping Association (Petitioners) that the validity of the attempts at work preservation embodied in the collective bargaining agreement between Petitioners and the International Longshoremen’s Association (Union) is to be determined solely under the National Labor Relations Act and specifically under sections 158(b)(4)(B) and (e) of that Act.1 Also with respect to the Maritime Labor Agreements Act of 1980, Pub.L.No. 96-325, 94 Stat. 1021 (1980) (MLAA), I concur in the interpretation that collectively bargained work preservation agreements were not thereby excluded from the jurisdiction of the Maritime Commission. At 181.
I disagree, however, with the suggestion in dictum in a footnote2 that the general rationale of the exemption for labor agreements from the filing requirements of section 15 of the Shipping Act, mandated by the MLAA, supports a nonstatutory labor exemption from the substantive provisions of the shipping laws. The majority suggests that the Supreme Court “might extend the Boston Shipping [United Stevedoring Corp. v. Boston Shipping Ass’n, 16 FMC 7 (1972)] criteria to the substantive shipping law provisions.” I find no evidence for that speculation in the decisions of the Court. Moreover, the MLAA itself indicates that such an extension of the labor exemption was rejected by Congress when it considered the scope of the exemption it was granting in the MLAA and specifically rejected its extension to the substantive shipping laws in precise language as follows:
Sec. 5. Section 45 of the Shipping Act, 1916 (46 U.S.C. 842), and all references thereto, is redesignated section 46 and a new section is added as follows:
“Sec. 45. The provisions of this Act and the Intercoastal Shipping Act, 1933, shall not apply to maritime labor agreements and all provisions of such agreements except to the extent that such provisions provide for the funding of collectively bargained fringe benefit obligations on other than a uniform man-hour basis, regardless of the cargo handled or *337type of vessel or equipment utilized. Notwithstanding the preceding sentence, nothing in this section shall be construed as providing an exemption from the provisions of this Act or of the Intercoastal Shipping Act, 1933 for any rates, charges, regulations, or practices of a common carrier by water or other person subject to this Act which are required to be set forth in a tariff, whether or not such rates, charges, regulations, or practices arise out of, or are otherwise related, to a maritime labor agreement.”.
Pub.L.No. 96-325, § 5, 94 Stat. 1022 (1980) (emphasis added).
This enactment confirms the prior interpretation of the Shipping Act. In application, it means that the FMC has jurisdiction to apply the substantive provisions of the shipping laws to tariffs that incorporate the terms of collective bargaining agreements. Thus, regardless of the source of the tariff’s terms,
Whenever the Federal Maritime Commission finds that any rate, fare, charge, classification, tariff, regulation, or practice demanded, charged, collected, or observed by any carrier subject to the provisions of this chapter is unjust or unreasonable, it may determine, prescribe, and order enforced a just and reasonable maximum or minimum, or maximum and minimum rate, fare, or charge, or a just and reasonable classification tariff, regulation, or practice:
46 U.S.C. § 845a (1976).
While the statement of the majority in footnote 126 is therefore purely dictum I am concerned lest it be given more weight than its soundness warrants. The FMC should ignore such comment because it is not soundly based in the statute, legislative history or adjudicated cases.
My principal disagreement with the majority opinion, however, is with its statement of the principle it relies upon to control this case. It asserts that the Supreme Court’s 1978 holding in Federal Maritime Commission v. Pacific Maritime Ass’n (PMA), 435 U.S. 40, 98 S.Ct. 927, 55 L.Ed.2d 96 (1978), is based on the principle that “an agreement is not exempt if it directly imposes terms on persons or entities outside the agreement.” At 183 (emphasis added). There are at least two serious difficulties with the application of this rule in the instant case.
First, it fails to discuss the issue — strenuously argued by the intervenors — whether one can legally equate the Rules on Containers set forth in the collective bargaining agreement between the Union and the carriers with those same Rules as incorporated into the carriers’ tariffs. The failure even to consider this point is evident from the majority’s statement of the test: an “agreement” is not exempt if it imposes terms “directly” on third parties. While the collective bargaining agreement may in some sense, because it includes the Rules, “impose” terms on shippers, it is not that agreement which is under scrutiny here. Rather, it is the ocean tariffs filed by the carriers.
Therefore, posing the test in terms of the “direct” effect of the “collective bargaining agreement” misstates the issue. The question presented to the Commission for consideration was either (a) the indirect effect the agreement has when its terms are included in a carrier’s tariffs, or (b) the direct effect of the tariffs. The statement by the majority as to the applicable standard has one foot in each trough, and the result is bound to be hopelessly confusing if the courts or the FMC should attempt to apply it.
When one attempts to figure out how this apparently superficial flaw can be straightened out — by replacing “agreement” with “tariff,” or by substituting “indirectly” for “directly” — it becomes apparent that the whole basis for the majority’s statement of the controlling law is questionable. The problem is not a superficial one. It is the fundamental one of trying to use the PMA decision as authority for a premise the importance of which deserves thorough independent justification.
PMA involved the issue of whether there was a blanket exemption for collective bargaining agreements themselves from the *338filing requirements of section 15 of the Shipping Act. A panel of this court (Wright, McGowan, Tamm, JJ.) held that there was a blanket exemption, because to require pre-implementation approval of labor-management contracts by the FMC would frustrate national labor policy favoring the quick resolution of labor disputes. The Supreme Court reversed that decision, holding that there was no per se exemption; rather, the Commission had jurisdiction at a minimum to require prior filing and approval of agreements whose impact on competition was “neither de minimis nor routine.” 435 U.S. at 56, 98 S.Ct. at 936. It is this phrase that the majority says controls here.
The rationale disapproved by the Supreme Court in reversing PMA should suggest the inappositeness of applying that rationale concerning a collective bargaining agreement to this case involving a tariff. This court’s reasoning, which was based upon the need to avoid, not even the substantive law, but merely a pre-implementation procedure — was explicitly rejected. Therefore, while PMA supports the very general proposition that labor agreements are to some extent subject to FMC scrutiny, it says little if anything about the Commission’s role in evaluating tariffs derived from such agreements against the substantive provisions of the Shipping Act.
There is a very substantial distinction between collective bargaining agreements (which PMA held may or may not be exempt from pre-implementation scrutiny) on the one hand, and tariffs on the other. This distinction was brought to the attention of Congress in hearings on the MLAA both by the FMC3 and by the Union;4 the result was the explicit distinction in section 5 of the MLAA between maritime labor agreements and matters “required to be set forth in a tariff.” As intervenors rightly suggest, to ignore the distinction would be to reduce the incentive of a carrier — even one bargaining at arm’s length — to bargain for labor agreements that are consistent with the Shipping Act’s policies.
It must be remembered that the Shipping Act has. as its primary purpose the protection of shippers, not carriers. From the standpoint of the shipper, the terms set forth in a tariff are the same regardless of whether they had their genesis in a collective bargaining agreement; the tariff is the only statement of terms imposed “directly” upon the shipper. National labor policy, while it may require that the FMC be kept out of the labor-management bargaining process, does not prohibit the FMC from applying the substantive provisions of the Shipping Act to protect shippers from being forced to bear the costs of carriers’ losses at the bargaining table merely because they were incorporated in a collective bargaining agreement.
I thus cannot join the majority’s statement of the controlling law.5 The tariffs at issue in this case are subject to the substantive shipping laws, not because they arise out of a collective bargaining agreement that falls short of complete exemption from scrutiny, but simply because they are tariffs subject to FMC review. Although it may ultimately be demonstrated that the principles underlying PMA are applicable to cases involving the evaluation of tariffs under the substantive shipping laws, I cannot agree that PMA “controls” these cases.
*339Ultimately, I agree with the majority that assuming arguendo that a labor exemption is applicable here, the tariffs would still be within the FMC’s jurisdiction under Boston Shipping. At 187-188. I therefore concur in upholding the FMC’s exercise of its jurisdiction here.
I disagree, however, that it is either necessary or desirable that this case be remanded for further consideration. It is correct that the decision by the FMC was rendered some time ago; but one of the principal reasons for our delay was the stay the parties requested because of a pending case, NLRB v. International Longshoremen’s Ass’n, 613 F.2d 890 (D.C.Cir.1979), aff’d, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980).6 That decision has now been released, and its failure to consider any question at issue here is grounds for not remanding the case. Indeed, both PMA, supra, and International Longshoremen’s Ass’n, supra, have been decided since the FMC decision, but there is nothing in either decision that would cause the FMC to consider any questions of fact or law not previously considered and ruled upon. International Longshoremen’s Association dealt solely with the work preservation issue under the labor law. Although petitioners do not concede that the Rules as incorporated into carrier tariffs violate the substantive shipping laws, they have chosen to limit their argument to the jurisdictional issue. We have no reason to believe that the Commission erred in applying the law as it stood at the time of its decision, and no reason to believe that law has since changed in any material respect. Consequently, returning the matter to the Commission for further proceedings can serve no useful purpose. I therefore dissent from the court’s decision to remand the case.
. 29 U.S.C. § 158(b)(4)(B) and (e) (1976).
. Maj. op. at 187 n.126.
. Vice Chairman Moakley stated that “Under the present law, the tariff stands on its own and must be defended as a tariff.” Hearings Before the Subcomm. on Merchant Marine and Tourism of the Senate Comm, on Commerce, Science and Transportation on H.R. 6613, 96th Cong., 2d Sess. 12 (1980) (emphasis added).
. President Gleason of the International Longshoremen’s Association stated that “this union does not talk about tariffs. I think that is the companies’ business ...” Id. at 33.
.The majority states that the Commission itself urged the applicability of PMA in arguing the present case. At 187 n.125. The Commission did not, however cite any decisions in which it has previously adopted this interpretation. In view of the testimony of Vice Chairman Moakley in the MLAA hearings, see note 3 supra, I question whether the Commission would upon a thorough consideration of the matter view PMA as controlling cases of the present kind.
. This case was first postponed on motion of the Commission while International Longshoremen’s Association was pending in this court. It was postponed a second time, this time at petitioners’ instance, when the Supreme Court granted review of that decision.