concurring in the denial of rehearing en banc:
The panel’s decision in this case creates a clear conflict with the holdings of two of our sister circuits. Under these circumstances, it seems to me that the court has a particularly important responsibility to consider carefully the course on which it is embarking. The reason is not only one of respect for our judicial colleagues elsewhere; equally fundamental is the Supreme Court’s manifest lack of capacity to address all significant conflicts of law within the ever growing circuits.
With the Supreme Court’s plenary docket brim to overflowing, the appellate en banc procedure duly authorized by Congress provides a reasonable and sensible way of assuring that conflicts are not lightly or casually created. This alternative seems all the more applicable to our court, which ranks in the bottom tier of the respective courts of appeals in the percentage of cases that it sees fit to consider en banc. Indeed, our comparative reluctance to repair to the en banc procedure is doubly odd inasmuch as Congress has seen fit to confer exclusive jurisdiction on our court in a number of critical arenas of federal law. Thus, quite apart from conflict-generating decisions (which are of obvious importance to the uniformity of federal decisional law), of equally high concern to our court should be panel decisions raising important issues *237in the body of administrative law, the area in which our daily labors so completely immerse us. In view of our unique jurisdictional mandate and location at the seat of government, we are well advised to be vigilant in keeping our own house fully in order. In short, one would more naturally think that we would rank toward the top of the circuits, rather than leisurely roosting down near the bottom, in our willingness to take a more considered, second look at the important cases that so regularly come before us.
In the case at hand, I have carefully considered the views of the panel, those of my colleagues who take a contrary view, and those of the two circuits which have gone in a different direction. Thus edified, I am firmly persuaded that my colleagues on the panel are, much more likely than not, entirely correct. The panel’s reasoning is clear, sensible and reasonable. It treats fully and candidly the contrary views of the other two circuits. Accordingly, being unpersuaded that error has infected the panel’s approach, I am content with the full court’s decision to allow this circuit’s differing interpretation of federal law to stand. The conflict is regrettable, but it nonetheless represents the considered and, I tend to believe, correct judgment of those charged with interpreting federal law. Above all, the decision resulting in a circuit conflict is one that has been made soberly and conscientiously, respectful of contrary views elsewhere, which is all that reasonably can be asked of us.