dissenting:
I cannot agree with the majority’s analysis, and hence, I dissent from its holding which directs the Department of Transportation (“DOT”) to conform to the stringent time limits of § 401(c)(2)(B) — time limits which have no application by statute, purpose or reason to a § 408 “merger-condition.”
I.
In this case, United Airlines has been permitted to acquire the Pacific routes of Pan Am, subject to the condition, however, that if DOT deemed in a future proceeding that the public’s interest would be served *264by authorizing another U.S. flag carrier to provide service, that United would be required to surrender its authority. Until that time, however, United could continue providing service from Seattle to Japan. The hearing that took place resulted in a recommendation by the AU to replace United in the Seattle-to-Japan service.
When this recommendation was reviewed by a Senior Career Officer (“SCO”) in accordance with regulations, that officer reversed the order of the AU. The SCO then forwarded his opinion to the Assistant Secretary for policy and international affairs. The Assistant Secretary returned the opinion to the SCO for revisions to this opinion. It was at that point that the difficulty giving rise to this appeal occurred.
The Assistant Secretary, believing that the statutory deadline for the decision was September 18, 1987, directed that the corrections be completed by September 10, 1987. However, the SCO, because of a potential conflict in interest, was obliged to disqualify himself. Because the initial thought in the Department of Transportation (erroneous in my judgment), was that the time constraints of § 401(c)(2)(B) controlled, DOT dismissed the applications before the purported deadline.
II.
I cannot agree with the majority’s analysis for a fundamental reason. Although the majority has implicitly acknowledged that no statutory provision of the Federal Aviation Act, 49 U.S.C.App. § 1371 et seq., applies directly to the situation which we confront on this appeal, i.e., the time for decision of a merger with a subsequent condition (see e.g., maj. op. at 212-213), it has, nevertheless, by construing a statute out of its context, qualified the “merger-condition” circumstance by the time constraints applicable to proceedings conducted under § 401(c). Proceedings under that provision, as I read it, pertain only to initial application proceedings and not to applications submitted in connection with a “merger-condition spin off” proceeding.
Further, in order to give meaning to its interpretation of § 401(c), the majority opinion does not rely upon the plain meaning of the statute, Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), its express terms, id., nor on Congress’ intent in enacting 401(c). Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Rather, it relies on what the parties and DOT purportedly “assumed,”1 “thought,”2 and “construed”3 § 401(c) to mean. Because I cannot agree that a statute’s mandate can be derived from “assumptions,” and “thoughts” of the parties who are affected and bound by its provisions, and because I am convinced that the resolution of this appeal is governed not by § 401(c) but by prior precedent of this court and § 408 of the Act, I am compelled to reach a different conclusion than the conclusion decreed by my brothers in the majority.
III.
As the majority notes (maj. op. at 213-214), Delta Airlines, Inc. v. CAB, 561 F.2d 293 (D.C.Cir.1977), presented a situation analogous, if not controlling, to the one before us today. In Delta, the Civil Aeronautics Board (“Board”) approved a merger between Delta Airlines (“Delta”) and Northeast Airlines (“Northeast”). One of the issues presented by the Delta merger was whether the acquiring carrier, Delta, should be allowed to retain Northeast’s authority to operate between Miami and Los Angeles. The Board conditioned approval of the merger on Delta’s agreement to submit that route for review. The Board characterized this review as a proceeding *265under § 401(g) of the Act, 49 U.S.C.App. § 1371(g). That provision of the Act authorizes the Board (and now DOT) to “alter, amend, modify, or suspend any ... certificate, in whole or in part, if the public convenience and necessity so require____”
Soon thereafter, the Board initiated the Miami-Los Angeles Competitive Nonstop Case. The initiating order for that case stated that its purpose was:
to determine whether the public convenience and necessity require (a) the alteration, amendment, or modification of any carrier certificates so as to authorize non-stop service ... between Miami-Fort Lauderdale, Fla., and Los Angeles-Ontario-Long Beach, California, and (b) the alteration, amendment, or modification of Delta Airlines’ certificate for [the MiamiLos Angeles route].
Delta, 561 F.2d at 297.
The language used in the initiating order for the Delta case yields two important considerations for the present case. The first point is that the Delta case, like the one before the court today, involved both the possibility of deleting a route from an airline’s certificate of authorization and the possibility that the newly deleted route would then be awarded to another airline. Second, the Board and all the parties in the Delta case, very clearly characterized the proceeding as a proceeding pursuant to § 401(g) of the Act.
Ultimately, the Board in Delta concluded that the route should not be transferred to Delta, but instead should be awarded to Western Airlines. Delta, in its petition to this court to review the Board’s decision, presented two arguments. Delta first argued that the Board’s order improperly transferred the route to Western because the transfer was effectively a revocation of Delta’s certificate, and revocation under § 401(g) requires a showing of an “intentional failure to comply” with applicable law. Such a showing, Delta argued, was not present in the record. Second, Delta argued that the Board’s power under § 401(g), to alter, amend, or modify certificates, did not extend to the elimination of an entire major route.
This court rejected both arguments. Essentially, the Delta court concluded that the proceeding was not a § 401(g) proceeding; that it relied on the “merger-conditions” provisions of § 408(b); and that that authority alone was sufficient basis for the Board’s order. Indeed, the court, as we quote below, found no reason for the Board to have mentioned § 401(g) at all, inasmuch as the controlling authority for the Board’s action was found in § 408(b).
Because of its pertinency to the instant appeal, I reproduce that portion of the Delta opinion which in my view should control the disposition in the instant case:
We reject both parts of Delta’s argument for essentially the same reason. The Miami-Los Angeles Competitive Nonstop Case was not an ordinary § 401(g) proceeding. Rather, it was convened in accordance with the Board’s decision in the Delta-Northeast merger case. The Board’s order instituting the Miami-Los Angeles investigation relied specifically not only on § 401(g), but also on § 408(b) of the Federal Aviation Act, 49 U.S.C. § 1378(b) (1970).
******
[W]e need not evaluate Delta’s contention that the Board’s § 401(g) power to alter, amend, or modify certificates does not embrace the prerogative to eliminate an entire major route from a carrier’s authority. Even if Delta’s points were well taken with respect to § 401(g) proceedings generally, they completely ignore the fact that, under § 408(b), the Board may approve a merger “upon such terms and conditions as it shall find to be just and reasonable____” In this case, one of the terms imposed was a de novo consideration of the Miami-Los Angeles route award originally made to Northeast in 1969. If such a proceeding does not fall neatly within the mold of the ordinary § 401(g) proceeding, perhaps the Board should have been more circumspect about its use of the § 401(g) label. Since we can discern no obvious interrelationship between § 401(g) and § 408(b) in the statutory scheme of the Federal Aviation Act, we see no reason why the *266Board could not have omitted mention of § 401(g) altogether, and simply provided a brief description of the proceeding it proposed to conduct, pursuant to § 408(b), in connection with the Delta-Northeast merger. While this may conceivably have been the preferable course for the Board to follow, its failure to do so did not prejudice Delta.
Id. at 301-02 (footnotes omitted).
IV.
A.
Given the Delta language quoted above and the Delta holding, I find no principled distinction between the Delta case and the present appeal. Delta stands for the principle that subsequent proceedings, held pursuant to a conditional approval of a merger, fall under § 408, no matter how the parties, including the Board or DOT, attempt to characterize them.4 Once this proposition is given due recognition, the flaw in the majority’s argument becomes readily apparent: since this hearing was instituted pursuant to a conditional § 408 approval, it was not an “application” proceeding, governed by § 401(c) and thus, the time limits of § 401(c)(2) were inapplicable.5
Moreover, I do not understand the majority’s insistence on fitting this “spin-off” proceeding into a § 401(c) box. Here, we are not faced with a case falling under either § 401(c) or § 401(g). While it is true Continental Airlines and American Airlines both “applied” for the Seattle-Japan route, and that their “applications” were consolidated with the instant proceeding, those “applications” were not typical of a § 401 proceeding. An application for a route under §§ 401(b) and (c) presupposes that such a route is available and is not assigned to another carrier servicing that route. In the instant case, no route was thus available, as United’s authority to operate the Seattle-Japan route had never expired or been taken away. Indeed, United’s authority was not scheduled to expire until April 1990. (A38). Furthermore, the impetus for this proceeding was not the § 401 “applications” made by Continental and American. Rather, it was the condition attached to DOT’s approval of the PDT case.
Nor does this proceeding “fall neatly within the mold of the ordinary § 401(g) proceeding____” Delta, 561 F.2d at 301. First, as mentioned above, the genesis for this proceeding and the authority to conduct it, derived from the conditional approval granted in the PDT case, under § 408. Second, the issues set for review by the conditional approval and the instituting order included far more than mere amendation of United’s certificate to delete the Seattle-Japan route. Those issues involved: whether a primary and backup carrier should be authorized to fly over that route, and if so, under what terms or conditions. Neither of these concerns are covered by, or embraced within, § 401(g).
In short, this case presents a circumstance where, although Congress has enacted time limits covering various types of DOT airline route proceedings, it has not addressed, and therefore has not established, a time limit for the type of “merger-condition” proceeding presented to the *267court today. Thus, Congress, by failing to foresee such a circumstance, has not spoken to the issue which we must resolve on this appeal. Accordingly, it is Congress’ silence, and not the parties’ assumption, with which we must contend.
Numerous distinguished jurists have written on the subject of legislative silence. For example, Judge Ruggero Aldisert, of the Third Circuit has recently commented:
To be sure, it is often difficult to interpret that which the legislature intended to say, to interpret what may be called the unclear norm. Equally important is how to apply a statute to an aspect of a relevant problem when obviously, although covered by the statute, the specific problem clearly never occurred to the legislature at the time of the statute’s enactment. This problem is not the problem of the unclear norm, but the problem of lacunae, of the nonexistent norm. Decades ago John Chipman Gray recognized the lacunae as a very serious problem:
The fact is that the difficulties of so-called interpretation arise when the legislation has had no meaning at all; when the question which is raised in the statute never occurred to it; when the question is not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.
Plowden, in his note in Eyston v. Studd in 1574, made an observation that is in striking anticipation of modem principles of discerning the equity of a statute:
And in order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the lawmaker is present, and that you have asked him the question you want to know touching the equity; then you must give yourself an answer as you imagine he would have done, if he had been present____ And if the lawmaker would have followed the equity, notwithstanding the words of the law ... you may safely do the like.
Aldisert, Ruggero J., Philosophy, Jurisprudence, and Jurisprudential Temperament of Federal Judges, 20 Ind.LJ. 453, 508 (1987). (Footnotes omitted).
When faced with a similar problem, Judge Harold Leventhal of this court in addressing a similar situation occasioned by a gap in Congress’ legislation stated:
So far as can now be gleaned from the briefs of counsel and our own researches, Congress did not expressly address itself to the issue of the applicability of the amended [statute to this issue.] The court is unable, then, to discern any specific legislative intent, one way or the other, as to the precise issue now before us.
That being the case, the court must discern the applicable legislative intent by what is necessarily an act of projection — starting from the areas where the legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before us.
Montana Power Co. v. Federal Power Commission, 445 F.2d 739, 746 (D.C.Cir.1970) (footnotes omitted).
B.
My problem with the majority’s approach in this case is that at no time has the majority attempted to discern what Congress would have intended, if faced with the problem with which Continental has presented us. Congress obviously never addressed such a problem and Congress has therefore enacted no “deadline” legislation requiring a definitive time period within which DOT must decide all terms of a previously imposed condition.
The majority opinion furnishes no adequate answer to this problem by its naked reference to Chevron, 467 U.S. 837, 104 S.Ct. at 2778, for the proposition that “... the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781-82; maj. op. at 212. Here, Con*268gress just has not expressed itself. Nor am I persuaded by the majority’s suggestion that we should look to DOT’s interpretation of the Act and uphold it, if the interpretation is “permissible,” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, that is, “rational and consistent with the statute.” NLRB v. United Food & Commercial Worker’s Union, Local 23, 484 U.S. 112, 108 S.Ct. 413, 4221, 98 L.Ed.2d 429 (1987). Congress has not expressed itself as to any time limitations that would be applicable to “merger conditions” deadlines. The Congressional intent here is non-existent, not unclear or ambiguous. Indeed, Congress never even contemplated the issue giving rise to this appeal.
Additionally, in the cases cited by the majority to which the above-quoted language from Chevron would apply, the particular agencies involved had promulgated regulations pursuant to a Congressional enactment. Here, of course, no regulation has ever been promulgated. Thus, in the present case, we review the action of DOT taken in an absolute statutory void and absent Congressional expression of intent. I am therefore satisfied that those cases cited by the majority are inapposite.
Just as the legitimacy of an agency’s regulations must be measured by some underlying Congressional authority, an agency’s interpretation of a statute requires, as a threshold matter, that there be a statute or some other Congressional expression by which we can determine whether deference to the agency’s interpretation must be afforded. Contrary to the majority’s suggestion that we should defer to the DOT’s interpretation of the Act, maj. op. at 215, I suggest that no such deference is required where Congress has enacted no legislation which the DOT could interpret, and which would permit us to defer to such an interpretation. The fact that DOT at one time erroneously assumed that it was engaged in a § 401(c) proceeding — an assumption later rejected in its Final Order (A157)— cannot act as a duly enacted statute.
If, however, the majority is correct in deferring to DOT’s expertise, and I am in error, at the least we should defer to DOT’s most recent expressions. In DOT’s Final Order, dated September 17, 1987 (A156), DOT stated “[a]s noted above, we believe that our obligations under Sections 401(c) and 401(g), through the APA, conflict. Our decision to dismiss this case is not based on an effort to avoid the requirements of the former but to comply with the requirements of the latter. Weighing the alternatives, we conclude that dismissal will cause the least violence to the objectives and policies of the Act.” Id.
Additionally, in a post-argument letter report to the court dated July 5, 1988, DOT advised the court that after reinstitution of the Seattle/Japan proceeding on June 10, 1988, the ALJ has now recommended, contrary to the former recommendation in favor of Continental, that United Airlines retain the route. In its report, DOT also advised that “[ajlthough the Department adheres to its view that there is no statutory or regulatory deadline applicable to this case, the Department intends to issue its final decision no later than September 22, 1988.” (Emphasis added).
In sum, if Congress failed to enact legislation providing for a deadline when conditions of a merger were to be decided, neither the agency nor the parties nor this court can overcome the absence of legislation based simply upon what the agency “thought,” or what the parties “assumed” at the outset of the proceeding. Rather, we would have to discern the appropriate Congressional intent, an exercise which the majority opinion has assiduously avoided. We would do so, as Judge Leventhal advised, by “... starting from the areas where the legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before us.” Montana Power Co., 445 F.2d at 746.
Moreover, the majority’s reading of this court’s Delta opinion does no more than “put the rabbit in the hat.” The majority opines that Delta did not deal with the treatment of rival airline applications (a proposition that is dubious at best) and thus does not govern this case. Maj. op. at 214. By distinguishing Delta and there*269fore claiming that such applications must be processed according to strict deadlines, the majority has erroneously assumed that Delta has answered the very question with which we are confronted on this appeal, viz., whether § 401(c) provides the deadline for deciding merger conditions such as those to which United Airlines is being held subject in this case.
If Congress had addressed itself to the situation before us, I believe that it would have had to balance, among other things, a number of considerations, including the extent of the conditions which DOT could impose, the type of hearing that might and probably would eventuate, the probability that circumstances not present in a § 401(c) application might arise in a conditional “spin-off” context, and the need, if any, for a strict time limit in a situation where service on the route was continuing, pending approval and pending resolution of the reserved condition. Certainly, the parties’ intent, or the parties’ assumptions could bear little weight, if any, in such a calculus. Yet it is that intent and that assumption on which the majority relies and which forms the foundation of the majority’s holding.
Thus, I believe that the proper form of analysis that is dictated, is for this court to determine what time limits, if - any, Congress would have set for DOT determinations of a condition imposed pursuant to a conditional approval of a merger under § 408. In short, we must guess what Congress would have intended on a point, not present to its mind, if the point had been present. See Aldisert, 20 Ind.L.J. at 508, supra.
V.
As discussed earlier, the instant proceeding touches on some, but not all, of the characteristics of a § 401(c) case and some, but not all, of the characteristics of a § 401(g) case. Indeed, because the instant proceeding was governed by neither statute, it is at the intersection of both these two statutes that we must look for our instruction. Thus, in attempting to determine what Congress would have done had it addressed itself to the type of case with which the court is faced today, I am guided by Congress’ enactments with respect to §§ 401(c) and (g).
A.
Section 401(c) sets up strict time limits for the processing of route applications. DOT must act upon an application, either by dismissing the application, starting summary procedures for its disposition, or by setting a date for a full public hearing, within 90 days after the application is filed. 49 U.S.C.App. § 1371(c)(1). If DOT determines that the application requires full public hearing conducted by an Administrative Law Judge, the initial recommendation of the AU must be made within 150 days of the order setting the hearing date. DOT’S final determination on the application must itself be made within 90 days after the issuance of the AU’s recommendation. 49 U.S.C.App. § 1371(c)(2). There is only one exception to these time limits: DOT may allow the AU an extra 30 days in extraordinary circumstances. 49 U.S.C. App. § 1371(c)(4).
In stark contrast to the largely inflexible time constraints set forth in § 401(c), § 401(g) contains absolutely no time limits whatsoever. Thus, when DOT initiates proceedings, to alter, amend, modify, suspend, or revoke a certificate of public convenience and necessity, upon petition or sua sponte, it is free to take as much time as it deems necessary in order to reach its decision. The question then becomes: which of these approaches would Congress have adopted if it had considered the question of time restraints in the type of proceeding before the court today.
B.
As noted previously, the aspects of this case which resemble a § 401(c) proceeding are necessarily dependent upon those aspects of the case which involve a § 401(g) proceeding, that is — there can be no route to apply for until a route has been made available by removing a route from United’s certificate. Since a condition precedent for DOT’s decision on a competing *270airline “application” (a decision for which Congress has set strict time limits under 401(c)(2)(B)) necessarily must subsume a decision on route deletion (a decision for which Congress has not set strict time limits), I am of the view that the same concerns that led Congress not to impose deadlines on § 401(g) hearings must be operative here. Such concerns must precede the concerns which led Congress to impose deadlines in § 401(c) cases. They must precede § 401(c) considerations because, as noted, without a route deletion from an existing carrier’s certificate, thus creating a “vacancy,” no route would be available for which application may be made.
Moreover, in a § 401(g) situation, service on the route is not only in place, but is a continuing service until supplanted. This is not the case in the § 401(c) context. In the latter context, neither the route, nor the carrier, is certified (for that route) until authorized by DOT, and thus, no service for such a “new” route can occur until the chosen carrier commences its operations. By its very nature, therefore, the route is open and “up for grabs” when § 401(c) applications are made. Thus, whereas a timely decision plays a critical role in having DOT choose between competing carriers when the route at issue is without service by any carrier — that same situation does not obtain where a § 401(g) proceeding is at work. Hence, whereas a purpose exists for a time deadline in a § 401(c) situation in order to provide service without undue delay, that purpose is not relevant in a § 408 circumstance where service is existing and continuous.
Accordingly, because the “merger-condition” proceeding under § 408, at issue here, involves a condition of service over an existing route by an existing carrier without the pressing need for new service on a new route by a new carrier, and because no statutory purpose has been shown to require a decision of DOT within rigid time deadlines, I would hold that no time limits constrain DOT’S decision with respect to the instant proceeding.
C.
This conclusion is reinforced by the circumstances presented in this case. Congress enacted the time limits of § 401(c) in order to prevent the CAB from engaging in the practice of dismissing, or failing to rule on, route applications and then ultimately dismissing them as stale. But see H.Rep. No. 95-1211, 95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Admin.News 3737-3740. But, in the present case no indication appears in the record that DOT has been less than diligent, or that DOT has dragged its feet, or that DOT has procrastinated with respect to deciding the reserved condition of the PDT merger. Quite to the contrary, each DOT hearing was timely scheduled and each review and determination was promptly made even though no statutory time limits were prescribed by Congress. The delay in deciding this case was not caused by DOT’S lack of diligence, but rather it was caused by the unfortunate circumstance of the Senior Career Officer to whom this case was assigned, accepting employment with one of the parties, thereby causing his recusal and delaying DOT’s ultimate decision. In short, when DOT dismissed the applications in order to reschedule the hearings on the reserved condition, it did so, not to delay, but because DOT found itself between “a rock and a hard place.”
This is quite different from the concerns that led Congress to impose time limits on initial applications made pursuant to § 401(c). By forcing this proceeding into § 401(c) of the Act, the majority has extended and applied § 401(c) time limits to a unique situation where Congress has provided no statutory time deadlines and where little utility or purpose has been demonstrated for establishing any such time limits.6 Indeed, that may very well be *271the consequence of the majority’s decision in this case, because by enforcing the deadlines of § 401(c) in a § 408 context, the majority has compelled DOT and the contesting carriers to accept the recommendation of the Administrative Law Judge, a recommendation which, I note, has been rejected by all subsequent levels of review.7 (As previously noted at 215, supra, the reinstituted proceeding has resulted in an AU’s recommendation that United Airlines retain the route rather than having the route awarded to Continental.)
D.
Moreover, the majority, by substituting for the intent of Congress its own judgment on time limits in the “merger-condition” context, may have imposed strictures on DOT which thwart a balanced and deliberative approach to § 408 decisions on mergers. If the conditions which DOT is authorized by statute to exact as part of a merger are to be limited by inflexible deadlines, I believe that such deadline decisions are best determined by Congress, or by a court upon a clear showing of congressional intent. Here, the majority has not documented any such showing that would permit a § 401(c) deadline to be affixed to a § 408 “merger-condition,” and as Justice Stevens recently wrote in an analogous situation (liability of a manufacturer under contract with the government) where Congress had not spoken to the issue before the Court:
When judges are asked to embark on a lawmaking venture, I believe they should carefully consider whether they, or a legislative body, are better equipped to perform the task at hand. There are instances of so-called interstitial lawmaking that inevitably become part of the judicial process. But when we are asked to create an entirely new doctrine — to answer “questions of policy on which Congress has not spoken” — we have a special duty to identify the proper decision-maker before trying to make the proper decision.
“When the novel question of policy involves a balancing of the conflicting interests in the efficient operation of a massive governmental program and the protection of the rights of the individual —whether in the social welfare context, the civil service context, or the military procurement context — I feel very deeply that we should defer to the expertise of the Congress____”
Boyle v. United Technologies Corp., — U.S. —, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (Stevens, J., dissenting) (footnotes omitted).
VI.
Because I believe that the reasoning of the Delta case provides explicit guidance here, and because I believe Congress would not have imposed the deadlines of § 401(c) on this type of “merger-condition” case had it considered the issue, and because the majority has not even attempted to divine Congress’ intention in the unique situation such as is presented here, I must respectfully dissent from the majority’s analysis and holding. Accordingly, I would deny Continental’s petition for review.8
. Maj. op. at 212.
. Id. at 210, 213.
. I question the majority's attribution to DOT that DOT "construed” that it was subject to 401(c)'s time limits. Maj. op. at 213. In its Final Order, DOT went to great pains to distinguish this unique proceeding which was initiated by DOT, from a § 401(c) proceeding initiated by carrier applications. DOT concluded, therefore, that it was not subject to § 401(c)'s statutory deadlines. (A157).
. As I have previously stated in text, and as the Delta case makes clear, the parties’ characterization of a proceeding is not binding upon a court. 561 F.2d at 301-02. Indeed, because under Delta, § 401(g) is inapplicable in a "merger-condition" § 408 proceeding, it is evident to me that DOT, by specifying § 401(g) in its instituting order in the instant case, has failed to heed the instruction, if not the chiding, of this court in Delta. Id. at 302 & n. 10. There, this court stated that a "brief description of the proceeding it proposed to conduct, pursuant to § 408(b),” would have been sufficient and that the Board should have been more "circumspect” about its use of the § 401(g) label. Id. at 301, 302.
. The majority opinion (page 215) claims that even if DOT was conducting a § 408 proceeding which would not be governed by the time limits of § 401(c), it would nevertheless have been required to abide by a six (6) month deadline. However, the six-month time limit of § 1010 of the Act, 49 U.S.C.App. § 1490, is not applicable here. That provision requires DOT to issue "a final order or decision” approving a merger, in § 408 proceedings within six months. That six-month provision, however, has no application to the conditions attached to the approval of a merger, which is the issue in this case. The Act does not establish a deadline for DOT’s decisions respecting proceedings held to finalize conditions attached to mergers.
. I observe that in approving § 408 mergers, DOT may well have to weigh a multitude of considerations and factors that may not be present in deciding § 401 applications among competing carriers for routes. The record in this case is not developed with respect to such differences. However, given that there is no limit on the conditions that DOT may prescribe in order to approve mergers, it is immediately evident that the time limits established by Con*271gress for one form of action by DOT might very well be inappropriate, and indeed, counter-productive for DOT action of a situation different in character. That is the very circumstance that I suggest obtains in the majority’s effort to impose § 401(c) deadlines on § 408 "merger-condition” decisions.
. In its Final Order, DOT recognized that a final decision by the ALJ on a reserved condition was undesirable by stating:
... it is the administrative agency’s function, not an administrative law judge’s to make the findings of fact and make the ultimate decision. Further, an agency must explain its final decision. In this case, the Department has neither completed its consideration of the exceptions to the judge’s recommendations, nor ruled on their merits. Especially in the context of a deletion proceeding where significant property rights are at risk, the parties are entitled to a ruling on their exceptions.
(A157).
. Because I do not subscribe to the majority’s analysis, I need not reach, nor address, the issue of whether DOT’S action in dismissing Confinen*272tal's application, constituted a "final order" under § 401(c). See maj. op. at 216.