concurring:
As my colleagues faithfully recount, this case was launched with the FCC’s order holding that Meredith Corporation violated the fairness doctrine. Syracuse Peace Council, 99 FCC 2d 1389 (1984). When the case arrived here almost two years ago, a panel of this court held that the FCC had erroneously failed to consider Meredith’s contention that the doctrine violated the First Amendment. Meredith Corp. v. FCC, 809 F.2d 863 (D.C.Cir.1987). Our colleagues explained, in emphatic terms, that the FCC could not, consistent with its duty to uphold the Constitution, enforce the doctrine without considering its constitutionality. Id. at 874. In particular, consideration of constitutionally based objections was held to be properly within the Commission’s purview since, under Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C.Cir.1986), the fairness doctrine represented only an FCC policy, not a statutory requirement.
The upshot was that the Meredith panel remanded the case to the Commission with express instructions to consider Meredith’s First Amendment claim or to resolve the case on the ground that the fairness doctrine violates the “public interest” standard. Meredith Corp. v. FCC, 809 F.2d at 874. Following that remand, the FCC vacated its previous finding that Meredith had violated the doctrine and concluded that “the fairness doctrine contravenes the First Amendment and thereby disserves the public interest.”, 2 FCC Red Vol. 17, 5043, 5057 (1987) (“Order” hereinafter).
Now the case makes its return visit. After elaborate briefing on the constitutional issue resolved by the Commission in conformity with the Meredith remand, my colleagues have arrived at the view — urged by no one in the case — that our analysis can properly proceed by, in effect, blue penciling the Commission’s language purporting to base the agency's action on constitutional grounds. The majority’s methodology of restraint flows, quite understandably, from the salutary principle that courts must avoid deciding constitutional issues where nonconstitutional grounds of decision are available. See e.g., Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-84, 80 L.Ed. 688 (1935) (Brandéis, J. concurring). But the applicability of that venerable principle here is very much in doubt. For one thing, we have no statute before us, but only an agency-minted policy which by its very nature implicates the most profound First Amendment interests. For another, the issue comes to us in an administrative law setting with the agency expressly relying upon constitutional considerations and rendering a constitutional judgment. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1942); see also FPC v. Texaco, Inc., 417 U.S. 380, 395-97, 94 S.Ct. 2315, 2325-27, 41 L.Ed.2d 141 (1974); Gulf States Utils. Co. v. FPC, 411 U.S. 747, 764, 93 S.Ct. 1870, 1880, 36 L.Ed.2d 635 (1973). Taken together, the two very different cases of Ashwander and Chenery teach that a court is to base its *58review of agency action on non-constitutional grounds if the record reveals that the agency in fact based its decision, either exclusively or alternatively, on such grounds. The agency’s analysis must, perforce, shape the contours of the court’s consideration.
After reflecting on the effect of Ashwander and Chenery principles, I cannot, in conscience, subscribe to my colleagues’ approach. With all respect to the court’s view enunciated today, I am convinced that the record in this case simply will not, fairly read, yield the conclusion that the agency has based the specific decision before us independently on non-constitutional grounds. There is, therefore, no proper basis for skirting the Commission’s constitutional analysis (unless we were to conclude, as I do not, that the Commission erred in even considering that issue); in short, the constitutional justifications for the Commission’s action must, alas, be considered.
To state briefly the pertinent background: On remand from this court, the Commission based the decision now before us on (1) the adjudicatory record prior to remand, (2) public comments received following remand, and (3) the Commission’s 1985 Fairness Report. As the Court’s opinion today rightly emphasizes, the 1985 Report reflected an extensive, public-interest inquiry into the current impact of the fairness doctrine. Order at 5043. The Commission then explained its decision as follows:
The [Meredith] court ordered the Commission to consider Meredith’s constitutional arguments unless it decided, on policy grounds, not to enforce the fairness doctrine. As we began to examine the policy issues ... it became evident to us that the policy and constitutional considerations in this matter are inextricably intertwined and that it would be difficult, if not impossible, to isolate the policy considerations from the constitutional aspects underlying the doctrine. We believe, as a result, that it is appropriate and necessary to address the policy and constitutional issues together....
Order at 5046 (emphasis added).1 The agency’s language can scarcely be clearer; in response to the terms of the Meredith remand, the FCC expressly declined to avoid the constitutional issue by resolving the case solely on policy (or public interest) grounds.
With that, the Commission then proceeded to engage in an elaborate, First Amendment analysis based on the Supreme Court’s opinion in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Order at 5048-52. The FCC’s Order is rooted firmly in Red Lion. Wherever one looks in the opinion, one sees the FCC wrestling with Red Lion. Red Lion, it goes without saying, is manifestly not a “public interest” decision; it is a constitutional decision of the first order grounded entirely on the overarching demands of the First Amendment. What the FCC itself characterizes as the “inextricably intertwined” nature of the constitutional-policy inquiry, coupled with what can only be characterized in truth as the FCC’s First Amendment mode of analysis, demonstrates beyond peradventure that the agency was examining the fairness doctrine’s lawfulness through First Amendment lenses.2
*59It therefore cannot successfully be maintained that the Order is based, either exclusively or alternatively, on public interest grounds. To be sure, as my colleagues understandably emphasize, the Order relies heavily on the FCC’s 1985 Fairness Report, in which the Commission concluded that the fairness doctrine violated the public interest standard. 1985 Fairness Report, 102 FCC 2d 145 (1985). But if the Commission were deciding a public-interest issue alone, without more, all it would have needed to do was dust off and press into service the 1985 Report. Indeed, there is not the slightest hint that the FCC in 1987 viewed its magnum opus of only two years earlier as sufficient to the purpose at hand. Rather, the Commission decided, in light of the Meredith remand, to tangle with Red Lion itself. There is no escaping this hard, cold fact: in the wake of the generously worded Meredith remand, the Commission has rendered a Red Lion decision. It has switched gears from three years ago and gone beyond the less heroic, public-interest reach of the 1985 Report.
Now this should come as no surprise to anyone in this courthouse. At the time of the 1985 Report, the Commission was understandably reluctant to cast its conclusions in constitutional terms. The obvious reason for this becoming modesty and restraint was that it had not yet been determined whether the fairness doctrine was indeed codified by the Communications Act. 1985 Fairness Report, 102 FCC 2d at 155-56. As I see it, any differences between the 1985 Report and the current .Order reflect not a shift in the FCC’s substantive position, but a sea change in the Commission’s authority to articulate its views.3
Without fully taking account of the unique legal context surrounding the 1985 Report, the court today relies upon what it views as the Order’s “wholesale” incorporation of the 1985 Report to demonstrate that the FCC has in fact rendered a public interest decision. The court ferrets out and features a footnote buried deep in the Order — footnote number 120 to be exact— to buttress its position. That humble, but obviously pivotal (to my colleagues) footnote reads:
We hereby incorporate the findings of the 1985 Fairness Report into this record and, as more fully explained below, reaffirm the findings and conclusions contained in that Report.” (emphasis added)
Order at 5066 n. 120.
The footnote, in turn, references the following passage:
We shall thus consider the constitutionality of the fairness doctrine from the perspective both of the public and the broadcast licensees. In so doing, we shall examine the record developed in this case and in the 1985 Fairness Report120 to determine, in accordance with existing Supreme Court precedent, whether the enforcement of the fairness doctrine (1) chills speech and results in a net reduction of the presentation of controversial issues of public concern and (2) excessively infringes on the editorial discretion of broadcast journalists and involves unnecessary government intervention to the extent that it is no longer narrowly tailored to meet its objective.
Id. at 5049.
This passage, appearing as it does in a portion of the Order entitled “Constitutional Considerations Under Red Lion” scarcely lends support to the conclusion that the FCC based its Order independently on public interest grounds. Indeed, the FCC could not have been more explicit in utilizing the Order only for its factual determinations, in particular the doctrine’s chilling *60effect and impact on editorial discretion, but not for the Report’s ultimate conclusion.4 See also Order at 5043 (listing six determinations of the 1985 Report, all of which go to the doctrine’s constitutionality).
In short, the record establishes beyond cavil (1) that the FCC based its Order on the premise that the First Amendment questions and public interest issues are “inextricably intertwined” and (2) that the Commission engaged in a Red Lion analysis. It follows from Chenery that this court is wanting in authority to wave all that pesky constitutional analysis away and pretend that what we have before us, in effect, is the 1985 Report. Meredith has unleashed Red Lion, and it will not do to pretend, with cheery bravado, that Red Lion is still secure in its pre-Meredith cage. Red Lion is now out on the streets, released by a deliberate and careful FCC decision.
For its part, the court airily treats this as just another case coming out of yet another agency here in town charged with making yet another broad public interest determination. This will not do. What is going on, with all respect, is a fundamental administrative law no-no. Chenery is, after all, not a prudential doctrine designed to facilitate judicial review. To the contrary, Chenery helps maintain the proper spheres of court and agency as ordained by the Administrative Procedure Act, 5 U.S.C. § 706 (1985):
If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.
SEC v. Chenery Corp., 318 U.S. at 88, 63 S.Ct. at 459.
Where, as here, Congress has committed the determination of the public interest to the FCC, “[i]t is not for us to determine independently what is ‘detrimental to the public interest’ ... The Commission’s action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act.” Id. at 94, 63 S.Ct. at 462 (citations omitted); see also I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 107 S.Ct. 2360, 2368, 96 L.Ed.2d 222 (1987) (court “may not affirm on a basis containing any element of discretion — including discretion to find facts and interpret statutory ambiguities— that is not the basis the agency used, since that would remove the discretionary judgment from the agency to the court”).
In sum, the public interest standard should not be reified as a brooding omnipresence that, notwithstanding both the adjudicatory record and the FCC’s explicit reliance on a Red Lion (constitutional) analysis, remains ever available to the judiciary as an independent ground of decision. WHhere, as here, the agency’s policy judgment is wholly driven by its constitutional reasoning and conclusions, the reviewing court is obliged to analyse the case in those terms.5 The approach followed today, I believe, conflates the court’s function with the agency’s prerogative of giving reasoned content, consistent with constitution*61al norms, to a statutory standard and thus inadvertently does violence to the basic framework of the modem administrative state.
The court’s stated basis for avoiding Chenery’s dictates, it appears, is that we can compel the FCC to analyze the public interest in other than constitutional terms: “[I]f the Commission had written its opinion in purely constitutional terms, we would have no choice but to address the constitutional issue or — more likely — to remand to the Commission for it to rearrange horse and cart.” Maj. Op. at 659. I think not. Under governing standards,6 the Commission’s decision to view the public interest as driven by First Amendment values (when other considerations, e.g., broad notions of broadcasters as public trustees, were available) is eminently reasonable. The FCC has never wavered from justifying the fairness doctrine, instrumentally, by reference to the fostering of First Amendment values. See, e.g., Fairness Report in Docket No. 19260, 48 F.C.C.2d 1, 4-7 (1974); Editorializing by Broadcast Licensees, 13 FCC 1246, 1256-57 (1949); Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 33 (1929); rev’d on other grounds, 37 F.2d 993 (D.C.Cir.), cert. denied, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1933). This view, moreover, has been repeatedly endorsed by the Supreme Court. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 380, 104 S.Ct. 3106, 3117, 82 L.Ed.2d 278 (1984) (the thrust of broadcast regulation “has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views ... ”); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 795, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978) (“the public interest standard necessarily invites reference to First Amendment principles”); Columbia Broadcasting System v. Democratic National Comm., 412 U.S. 94, 122, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772 (1973) (same); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375, 89 S.Ct. 1794, 1798, 23 L.Ed.2d 371 (1969) (fairness doctrine is permissible because it enhances rather than abridges freedom of speech). Indeed, the Supreme Court has expressly invited the FCC to examine whether the constitutional underpinnings of the doctrine remain viable. FCC v. League of Women Voters, 468 U.S. 364, 377 n. 11, 104 S.Ct. 3106, 3116 n. 11, 82 L.Ed.2d 278 (1984). In view of the fairness doctrine’s unique, constitutionally-charged history, it is hardly unreasonable for the FCC to view the public interest through First Amendment lenses.
Nor is the resulting public interest-First Amendment linkage surprising in view of our Nation’s historic skepticism, rooted firmly in law, as to the efficacy (and legitimacy) of governmental efforts to regulate the content of speech. There is simply nothing novel about the FCC’s determination that, for purposes of evaluating the fairness doctrine, the public interest is “inextricably intertwined” with the First Amendment. Although a regulatory regime might be hypothesized in which the FCC attempted to promote non-First Amendment goals (i.e., equality values inherent in mandated access provisions) through regulation of broadcasting content, that sort of regime is manifestly not required by the Communications Act, and it is emphatically not an abuse of discretion for the Commission to decline to craft such a regime.
The foregoing satisfies me that a remand to delink that which the agency has viewed as inextricably intertwined would be painfully inappropriate. It would also be a bit cheeky, in light of Meredith’s generous terms of remand. In short, the Commission’s determination that the public interest is inextricably related to First Amendment *62values is, I believe, fully consistent with the statute and explained with sufficient clarity and cogency to constitute a valid exercise of discretion. The fact that the court, informed by Ashwander principles, might prefer to review a decision based independently on public interest grounds does not warrant judicial compulsion that the FCC exercise its judgment in that manner. SEC v. Chenery Co., 318 U.S. at 94, 63 S.Ct. at 462; Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1977).
Remand would also be inappropriate because there is not the slightest indication that, on yet another remand, the FCC would elect to change its interpretation of the public interest-First Amendment relationship. Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766-67 n. 6, 89 S.Ct. 1426, 1430 n. 6, 22 L.Ed.2d 709 (1969) (“Chenery does not require that we convert judicial review of agency action into a ping-pong game”). These admonitions against futile remands have all the more bite here in view of the explicit authorization that the Meredith court gave to an agency decision resting on constitutional grounds. Meredith v. FCC, 809 F.2d at 874. It goes without saying that this panel is powerless to revisit our colleagues’ earlier handiwork, and even if we could, I for one see no need whatever to take that step.
That brings me to this: the court's discussion of remand, with all respect, misses the mark in concluding that affirmance on public interest grounds is justified because, in the absence of a public interest-First Amendment linkage the Commission would undoubtedly reject the fairness doctrine on policy grounds. Maj. Op. at 659. As previously discussed, the relevant point is whether the court may, in effect, create this set of circumstances by ordering the FCC to make a separate and independent public interest determination.7 This sort of judicial compulsion of an independent agency is not authorized by Ashwander, which assumes that a non-constitutional ground of decision is legitimately available. Cf. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 841-42, 106 S.Ct. 3245, 3253, 92 L.Ed.2d 675 (1985) (Ashwander requires that the non-constitutional construction relied upon be “fairly possible”).
Yet, when the court attempts to bypass Chenery and support its conclusion that the Commission would have found the fairness doctrine to contravene the public interest, it finds only the constitutional reasoning that permeates the Order. No separate ground exists for the majority to plant the Ashwander flag. For example, the court cites the Commission’s condemnation of the doctrine’s restriction on diverse viewpoints, interference with broadcasters’ expression rights, and chilling effect, and then notes that “[i]t is hard to imagine any mental gymnastics by which the Commission, having delivered itself of such a condemnation, could go on to find the doctrine in the public interest.” Maj. Op. at 659. Exactly. The Commission’s reasoning, which no mental gymnastics could reasonably characterize as anything but constitutional analysis, renders problematic any contrary public interest determination (e.g., accepting First Amendment losses to achieve equality gains), just as the Commission has claimed throughout its Order and these proceedings. But that does not render the Order before us any less a constitutional decision, and no alchemy can transform the Commission's gilt-edged reasoning into the lead of a public interest determination.
*63The court’s “perplexity,” provoked by the Commission’s central conclusion (that the doctrine’s “overall net effect [was] to reduce the coverage of controversial issues,” 2 F.C.C.2d at 5050), further attests to the fundamentally constitutional nature of the Order. Maj. Op. at 665. The court finds the Commission’s conclusion of “net effect” incoherent as a matter of orthodox administrative law reasoning about the public interest, id. at 665, but upholds the conclusion as “quite similar to the Supreme Court’s finding of similar value judgments implicit in the [F]irst Amendment as applied to the print media.” Id. at 665. Once again, exactly. As the Commission insists, we customarily call such reasoning “constitutional.” But the court wishes to term that reasoning “a matter of policy,” id., and “an effort to resolve the issue not only in policy terms but also in constitutional ones,” id. at 665. With all respect, the court can find only constitutional reasoning within the Order and can support the Order only by relying .upon constitutional reasoning. Deeming that reasoning “policy” cannot call forth Ashwander, and footnote 120 cannot sweep away the rest of the Order.
In sum, as the FCC’s decision is adequate in all respects and singularly unlikely to be altered on remand, I think the court is obliged to examine the FCC’s decision— grounded in the Constitution — as it comes to us. It is to that issue, avoided by my colleagues, but pressed exclusively by all parties before this court,8 that I must now turn.
II
A
The question before us — that is, the legality of the FCC’s action — is somewhat of a hybrid, exhibiting both constitutional and administrative law characteristics. As I see it, judicial review of the FCC’s Order is most correctly viewed as involving two distinct tasks. First, the court is called upon to scrutinize the Commission’s interpretation of the constitutional principles enunciated in Red Lion and its progeny. This task involves measuring the FCC’s articulation of constitutional principles, as distinguished from its application of those principles to the facts. Our scope of review in this particular is plenary. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); see also Monaghan, Marbury and the Administrative State, 83 Col.L.Rev. 1, 6 (1983) (criticizing the view that Marbury supports independent review of agency statutory interpretation). Second, we are called upon to review the Commission’s factual determinations. Of especial importance in this particular are the FCC’s findings (1) that an “explosion” in the number and type of media outlets has occurred; (2) that the fairness doctrine chills speech and thereby effects a net reduction in coverage of controversial public issues; and (3) that the fairness doctrine unduly impinges upon broadcasters’ editorial discretion.
The parties have assumed that the Commission’s findings of fact are subject to review under the “arbitrary and capricious” standard laid down in the APA, 5 U.S.C. § 706 (1985); see e.g., Brief of Syracuse Peace Council at 10. However, where, as here, factual determinations are intimately connected with the evaluation of constitutionality under the First Amendment, the Supreme Court has held (outside the agency context) that those findings should be reviewed independently. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 506-10, 104 S.Ct. 1949, 1962-64, 80 L.Ed.2d 502 (1984) (and cases cited therein). On reflection, I believe that in this instance the parties’ assumption is well-founded; the administrative law model of review indeed applies notwithstanding the presence of important First Amendment questions. Although the FCC’s fac*64tual findings are closely intermingled with its ultimate conclusion as to the constitutionality vel non of the fairness doctrine, independent review by the judiciary seems inappropriate for several reasons.
First, the FCC’s Order does not deny a constitutional claim. No one has urged that the fairness doctrine is constitutionally compelled. Rather, thg FCC has determined, pursuant to its obligation to uphold the Constitution, that the First Amendment requires elimination of the fairness doctrine. That point is of pivotal importance because the decisional law of the Supreme Court indicates that independent appellate review of facts is appropriate only where the decision under review denies a constitutional claim. See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 636, 28 L.Ed.2d 45 (1971) (independent review will be exercised “in cases in which there is a claim of denial of rights under the Federal Constitution”); New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964) (independent review functions to ensure “that the judgment does not constitute a forbidden intrusion on the field of free expression”) (citations omitted).
This conclusion flows from the principle that independent review, where applicable, derives from the Constitution itself. Bose v. Consumers Union, 466 U.S. at 510, 104 S.Ct. at 1965 (“The requirement of independent review ... is a rule of federal constitutional law”). Thus, where no constitutional rights are threatened by the findings at issue, the reason undergirding the unusual tack of independent appellate review of facts does not exist. Id. at 506 n. 24, 104 S.Ct. at 1962 n. 24 (citing Fiske v. Kansas, 274 U.S. 380, 385-87, 47 S.Ct. 655, 656-57, 71 L.Ed. 1108 (1927)). Indeed, in the present circumstances (i.e., an agency decision) a limited standard of review has been imposed by Congress in the familiar precincts of the APA.
Independent review of the Commission’s findings also seems inappropriate because we have before us the predictive judgments of a federal agency concerning the (perceived) effects of its own policy. The Supreme Court has recognized that the FCC is possessed of substantial expertise with respect to the impact of the fairness doctrine on the communications marketplace. See, e.g., FCC v. League of Women Voters of California, 468 U.S. 364, 379 n. 12, 104 S.Ct. 3106 n. 12, 82 L.Ed.2d 278 (1983). Indeed, the Court has accorded weight to factual findings underlying an FCC decision that broadcast regulation was inconsistent with the First Amendment. Columbia Broadcasting System, Inc. v. Dem. Nat’l Comm., 412 U.S. 94, 122-23, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772 (1973). The present case is thus readily distinguishable from instances in which the Supreme Court has independently reviewed the case-specific findings of juries or trial judges. See e.g., Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (independent review of jury determination that a specific publication or film is “patently offensive” and appeals to the “prurient interest”). In view of the FCC's obvious expertise, we would be unwise (and unfaithful to the APA) to disregard the Commission’s ultimate conclusions of fact with respect to the fairness doctrine’s chilling effect; its interference with broadcasters’ editorial discretion; and the explosive growth of media outlets.
B
Under these principles, the Commission’s Order should be upheld. It is based on reasonable factual findings and embodies a correct statement of applicable constitutional principles. From the foregoing discussion of the applicable scope of review, it should be evident that our evaluation of the Commission’s factual determinations partakes more of the nature of administrative law than of constitutional law analysis. That is, it would be anomalous if judicial approval of agency factual findings were awarded the Olympian force of a “true” constitutional decision, see Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), where those findings were subjected only to limited, administrative law-genre scrutiny.
*65Vindication of the constitutional reasoning in the Order thus would not constitute a judicial determination that the fairness doctrine (as currently administered) is “unconstitutional.” 9 To reiterate: I would hold only that the FCC’s decision to eliminate the fairness doctrine correctly interprets Red Lion and is based, as the court’s opinion effectively demonstrates, on an adequate factual record. Such a decision would therefore not automatically foreclose a future FCC (or Congress) from reestablishing the fairness doctrine in its present (or some modified) form. The fate of any future attempt to resurrect (or refashion) the fairness doctrine would depend, obviously, on the Supreme Court’s articulation of applicable constitutional doctrine (e.g., Red Lion)', but it would also be affected by the scope of review applied to the facts upon which the “new” fairness doctrine was sought to be justified. Of course, as we have just seen, the line of cases culminating in Bose Corp. indicates that factual findings underlying the denial of a First Amendment challenge would be subject to independent review. Although this situation is, again, not before us today, it bears mentioning that this additional burden imposed on proponents of allegedly unconstitutional government action (i.e., a “new” or “resurrected” fairness doctrine) represents the inevitable result of our system of constitutional supremacy.
I should hasten to add that this burden, while substantial, appears to be by no means hopelessly insurmountable. To the contrary, under the Red Lion framework (assuming, as I do, continued High Court allegiance to its teachings), the constitutionality of the fairness doctrine is linked in part to technological developments (and behavior) in the communications marketplace. Those developments obviously continue to unfold, with impacts that can only foggily be predicted. What is more, we have precious little experience in a stms-faimess doctrine regulatory environment. It remains to be seen whether the necessarily predictive judgments embodied in the Order will withstand the hard, true test of time. Columbia Broadcasting System, Inc. v. Dem. Nat'l Comm., 412 U.S. at 102, 93 S.Ct. at 2086 (“the broadcast industry is dynamic in terms of technological change; ... [solutions] acceptable today may well be outmoded 10 years hence”).
In short, it is not at all inconceivable that detailed reconsideration by a future FCC or carefully considered Congressional findings, compare Buckley v. Valeo, 424 U.S. 1, 28, 96 S.Ct. 612, 639, 46 L.Ed.2d 659 (1976) (limitations on campaign contributions focus precisely on problem of corruption and preserve substantial opportunities for political expression) with Fullilove v. Klutznick, 448 U.S. 448, 552, 100 S.Ct. 2758, 2813, 65 L.Ed.2d 902 (1980) (Stevens, J. dissenting) (racial classification not “narrowly tailored” because it “raises too many serious questions that Congress failed to address or answer in a responsible way”) and Red Lion, 395 U.S. at 399 n. 26, 89 S.Ct. at 1811 n. 26 (1969) (no specific agency findings needed in light of longstanding Congressional judgment and absence of contrary evidence); could persuade a future court that, notwithstanding the FCC’s contrary findings vindicated by today’s decision, some in futuro version of the fairness doctrine could be implemented consistent with First Amendment strictures.
C
As to the constitutional principles applicable to this case, the parties are congenially in accord (1) that Red Lion principles govern; and (2) that, under the Red Lion *66framework, government restrictions on broadcasters’ speech are valid only if “narrowly tailored to further a substantial government interest, such as ensuring adequate and balanced coverage of public issues.” Order at 5049 (quoting FCC v. League of Women Voters, 468 U.S. at 380, 104 S.Ct. at 3118). It is also by now well recognized that this standard affords broadcasters somewhat less First Amendment protection than that enjoyed by their print media counterparts. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (content regulation of the print media must be narrowly tailored to serve a compelling government interest).10
But there consensus abruptly stops. Although the parties agree that Red Lion is king, they strenuously disagree over the proper interpretation of that seminal decision. For its part, the FCC argues that the constitutional question turns on whether enforcement of the fairness doctrine
(1) chills speech and results in the net reduction of the presentation of controversial issues of public importance and
(2) excessively infringes on the editorial discretion of broadcast journalists and involves unnecessary government intervention to the extent that it is no longer narrowly tailored to meet its objective.
Order at 5049. The FCC believes that regulatory intervention through the vehicle of the fairness doctrine is not “narrowly tailored” if the number (and distribution) of media outlets ensures public access to diverse viewpoints. Order at 5051. That is, if access to diverse viewpoints can be achieved without the fairness doctrine, then the doctrine is not “narrowly tailored” because it unnecessarily interferes with editorial decisions. Finally, the FCC interprets Red Lion to render the fairness doctrine unconstitutional if either of these tests (net reduction or not “narrowly tailored”) is satisfied. Order at 5052.
Petitioners’ most vigorous attack is aimed at the proposition that the numerosity of media outlets and intrusive impact of the fairness doctrine may, without more, render the fairness doctrine unconstitutional. Petitioners contend that the relevant concern is the number of media outlets relative to the demand of broadcasters (expressed through license applications) for such outlets. More pertinently, petitioners direct our attention to the unique characteristic of broadcast regulation, namely the potential for interference occasioned by the fact that the broadcast spectrum can physically accommodate only a finite number of users. The potential for signal interference among competing broadcasters, it is argued, necessitates an allocation system whereby regulatory authority assures to broadcasters exclusive use of their portions of the spectrum. As this system by its nature excludes some who wish to broadcast, the readmission of excluded speakers via the fairness doctrine is constitutionally permissible, petitioners maintain, as an adjunct to the licensing system.
To recap: as petitioners see it, the fairness doctrine is constitutionally permissible so long as allocational scarcity exists, namely, that demand for broadcast frequencies exceeds supply. See, e.g., Brief for Syracuse Peace Council at 22-27. The FCC, in contrast, asserts that the constitutionality of the doctrine depends on numerical scarcity in the sense that, without government intervention, the public is not provided with access to diverse viewpoints.
There is thus a rather pivotal difference in the perspectives vying for judicial approbation. As I see it, the FCC’s position is much better founded; indeed, in my view, petitioners have fallen badly into error by misreading Red Lion. There is, to be sure, language in Red Lion with respect to the *67scarcity of the broadcast spectrum and the consequent tendency toward unrequited demand for frequencies. Red Lion, 395 U.S. at 376, 89 S.Ct. at 1799. Under Red Lion, however, that sort of scarcity seems to constitute a necessary (rather than sufficient) condition of the fairness doctrine’s legitimacy. That is, allocational scarcity accounts for the fundamental difference in First Amendment treatment of print and broadcast media. See FCC v. League of Women Voters, 468 U.S. at 377, 104 S.Ct. at 3116 (“[t]he fundamental distinguishing characteristic of the new medium of broadcasting that, in our view, has required some adjustment in First Amendment analysis is that ‘[bjroadcast frequencies are a scarce resource [that] must be portioned out among applicants.’ ”) citing Columbia Broadcasting Co. v. Dem. Nat’l Comm., 412 U.S. at 101, 93 S.Ct. at 2086; Red Lion, 395 U.S. at 386, 89 S.Ct. at 1804 (“differences in the characteristics of new media justify differences in the First Amendment standards applied to them”). However, spectrum scarcity, without more, does not necessarily justify regulatory schemes which intrude into First Amendment territory. This point is made clear by the familiar cases in which the Court has upheld broadcast regulation on the ground that the regulation furthered substantial First Amendment interests, see Red Lion, 395 U.S. at 396, 89 S.Ct. at 1809-10; Columbia Broadcasting Co. v. FCC, 453 U.S. 367, 396, 101 S.Ct. 2813, 2830, 69 L.Ed.2d 706 (1981); and by the case of Columbia Broadcasting Co. v. Dem. Nat’l Comm., 412 U.S. at 127-32, 93 S.Ct. at 2098-2101, where the Court held that the FCC need not require licensees to accept all paid political advertisements because such a requirement unduly impinged upon broadcasters’ rights and produced little public benefit. In short, petitioners conflate the Supreme Court’s choice of a standard for evaluating broadcast regulation with the Court’s application of its chosen standard to the interests assertedly advanced by a particular regulatory regime.
Petitioners’ reliance on the concept of allocational scarcity is logically flawed as well. As part of their attack on numerical scarcity, petitioners contend that “[t]he Red Lion court (sic) did not speak in terms of satiation, or hypothesize a point at which ‘enough’ diversity is present____ Only when supply and demand [for licenses] reach equipoise does the governmental interest change.” Brief of Syracuse Peace Council at 24. The argument is an intriguing one; but I think, with all respect, that it focuses with undue exclusivity on the market for broadcast licenses, whereas the central concern of Red Lion is that the fairness doctrine “preserve an uninhibited marketplace of ideas”. Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806. Indeed, a reading of Red Lion yields no evidence that the mere presence of excluded broadcasters is to be regarded as dispositive of the public’s need for programming of a particular type. Especially since individual members of the listening or viewing public, such as disappointed broadcast license applicants, may express their viewpoints on controversial issues in any number of ways that do not involve applying for and receiving a broadcasting license, it seems odd (and inaccurate) to equate scarcity in licenses with scarcity in the marketplace of ideas. Indeed, petitioners' argument ultimately flies in the teeth of Red Lion’s admonition that “it is the right of viewers and listeners and not that of broadcasters, which is paramount.” Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806.11
In contrast, the FCC has correctly discerned that, under Red Lion, the constitutionality of the fairness doctrine is closely related to the incapacity of the communications marketplace to give expression to diverse voices. As the Court stated, “[i]t is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here.” Id. Red Lion teaches that *68regulation such as the fairness doctrine is constitutionally permissible where, in the absence of regulation, such voices would “by necessity be barred from the airwaves.” Id. at 389, 89 S.Ct. at 1806.
The governing constitutional doctrine therefore recognizes that the communications marketplace may be sufficiently responsive to the public’s need for controversial issue programming so that government regulation is unnecessary. Cf. Red, Lion, 395 U.S. at 397, 89 S.Ct. at 1810 (fairness doctrine constitutional in light of the fact that the increased carrying capacity of the broadcast spectrum has been devoted largely to uses unrelated to debate on controversial issues). As a corollary of that principle, the FCC also recognized that, where the communications marketplace itself provides a plethora of voices, the fairness doctrine is not only superfluous, it is positively harmful. This is of singular importance in the analysis. As the Court has stated time and again, regulatory schemes that tread unnecessarily on the editorial discretion of broadcasters contravene the First Amendment. Columbia Broadcasting System, Inc. v. FCC, 453 U.S. at 395, 101 S.Ct. at 2829. (“[T]he broadcasting industry is entitled under the First Amendment to exercise ‘the widest journalistic freedom consistent with its public [duties].”) quoting Columbia Broadcasting System, Inc. v. Dem. Nat’l Comm., 412 U.S. at 110, 93 S.Ct. at 2090.
The Commission is also correct in interpreting the Supreme Court’s holdings as rendering the fairness doctrine constitutionally problematic where the “net effect” of the doctrine is a reduction in coverage of controversial public issues. The Supreme Court has expressly indicated that
were it to be shown by the Commission that the fairness doctrine “[h]as the net effect of reducing rather than enhancing speech,” we would then be forced to reconsider the constitutional basis of our decision in \Red Lion ].
FCC v. League of Women Voters, 468 U.S. at 379 n. 12, 104 S.Ct. at 3117 n. 12 (citations omitted). Obviously, as the fairness doctrine exists to promote speech on controversial issues, it seems manifest that the doctrine should not readily enjoy constitutional approbation if it ceases to promote and secure bedrock constitutional interests.
D
As the court's opinion ably demonstrates, the Commission’s factual determinations (1) that the growth of broadcast outlets ensures the public’s access to viewpoint diversity, and (2) that the fairness doctrine ultimately operates to reduce coverage of controversial issues, find reasonable support in the record. Rather than rehearse the salient points of the record in detail, it suffices for present purposes to highlight several points.
Significantly, petitioners do not dispute that, since the late ’60s when Red Lion was handed down, the number of media sources has expanded dramatically. The number of full power TV stations has increased 54 percent, Order at 5051, with the result that nearly 96 percent of U.S. households with television received five or more signals. Nearly two thirds of U.S. households received 9 or more signals. 1985 Fairness Report, 102 FCC 2d at 204-05. Similarly, the number of radio stations has increased 57 percent since the first year of the Nixon Administration, when Red Lion was first introduced to the world of constitutional law. Order at 5051. As of 1987, listeners had access to an average of 6 radio stations in the smallest markets and a whopping 25 stations in the largest markets. Brief of FCC at 25. As commuters and Walkman aficionados know, all news-all talk stations (or some variation thereof) abound in large markets.
The Commission also took account of the growth of various non-broadcast media, the most important of which is cable television. More than half of the nation’s TV households currently subscribe to cable. Id. at 26. The number is growing. Optimists around town say that even District of Columbia residents are beginning to enjoy access to this increasingly universal'manifestation of the electronic Agora. And, the proliferation of choice ushered in by cable is staggering. Over 94 percent of *69cable subscribers receive more than 12 channels; some cable systems have the capacity to offer more than 100 channels. Id. at 27.
Petitioners are, nonetheless, unconvinced by all this. They assert that these data fail to support the FCC’s pivotal conclusion that “the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today”. Order at 5051, quoting 1985 Fairness Report, 102 FCC 2d at 147. They emphasize that the growth in media outlets has not reached many local markets. Brief of Syracuse Peace Council at 28. But, as Judge Williams’ opinion for the court persuasively indicates, the data offered by petitioners in this respect fall short of drawing into question the impressive statistics marshalled by the FCC. No more need be said in these already overlong pages on that score.
Petitioners also contend that the increase in media sources has not resulted in significant increases in controversial issue programming. They point in particular to FM radio and UHF TV as examples of media sources that have grown rapidly without contributing significantly to viewpoint diversity. The FCC responds that petitioners offer little to back up their opinion-laden allegations. Order at 5051. But, even assuming that UHF TV and FM radio programs are not particularly intensive in their coverage of controversial issues, I am satisfied that the FCC did not put all of its eggs in one part of the large communications-market basket. Rather, as we just saw, the Order points to growth in broadcast media and non-broadcast technologies such as cable and satellite television. Id. The Commission has also indicated that these technologies are contributing to viewpoint diversity. For example, one well-known cable channel, whose chief anchor is blessed with the name of Bernard Shaw, is devoted solely to news; two cable channels are given over to coverage of Congress and related issues. Brief of FCC at 27 n. 25. We are told that the media stand ready and able to enter (and in some instances are entering) the courthouses of this blessed land, if the least dangerous branch decides to opt in favor of glasnost in its own house. In short, inasmuch as the Commission has relied on credible evidence concerning the growth and programming in many types of media, I cannot, in conscience, condemn as arbitrary and capricious its ultimate finding that the communications market as a whole provides “reasonable assurance” of public access to viewpoint diversity.
As to the FCC’s finding that the fairness doctrine so chilled speech as to result in a net reduction in the coverage of controversial issues, the court quite correctly notes that, where government regulation imposes substantial (and, to a certain extent, unpredictable) consequences on speech, drawing an inference of some chilling effect hardly represents an heroic step in our First Amendment tradition. Maj.Op. at 664. Of greater difficulty is the FCC’s finding of a net reduction in controversial issue programming. Petitioners’ main argument in this particular is that the Commission gave undue weight to testimony of chilling effect and insufficient weight to evidence that the doctrine stimulated speech.
In the face of these arguments, my colleagues state that “[w]e are frankly uncertain how anyone could be sure either way.” Id. at 665. Although I agree that the positive and negative impacts of the fairness doctrine cannot be precisely determined, it does not follow that we are justified in upholding the Commission’s finding of net reduction on the grounds that “the doctrine’s deterrent effects were on the same scale as it expression-generating ones” and that fairness doctrine-induced coverage is to be devalued as “govemmentally-coerced speech” fraught with the possibility of partisan abuse. Id. at 665. The first ground seems inappropriate because, in my view, the Commission never made that finding. The second ground is irrelevant because it relates not to the finding of chilling effect, but to the doctrine’s impact on distinct First Amendment values such as unfettered editorial discretion.12
*70The fact that a reviewing court cannot “be sure” of the correctness of the Commission’s finding of net reduction should not lead us to rely on Commission findings that are not germane to the analytically distinct question of the extent to which the fairness doctrine chills speech. In view of the attention given by the Supreme Court to the net reduction issue, FCC v. League of Women Voters, 468 U.S. at 379 n. 12, 104 S.Ct. at 3117 n. 12 (a finding that the fairness doctrine has the net effect of reducing speech would require reconsideration of Red Lion), and the principle that the interests of broadcasters, while important, are ultimately secondary to those of the viewing and listening public, our review should focus on the evidence adduced by the Commission in favor of its conclusion of a net reduction.
In this respect, my reading of the Order suggests that the Commission, based on its regulatory experience and testimony before the agency concerning chilling effects, reasonably determined that the fairness doctrine’s predominant effect on speech was inhibitory. Order at 5049. Specifically, the Commission found that the fairness doctrine chilled individual program decisions and induced broadcasters to adopt categorical policies against carrying editorials, political advertisements or nationally-produced public affairs programs. Order at 5050. The Commission further noted that, by virtue of the fairness doctrine, many broadcasters were encouraged not to air controversial issue programming above that minimal amount required by the first part of the doctrine. Id. at 5049. The Commission was also entitled to take into account the fact that the doctrine, by requiring coverage only of “major” contrasting viewpoints, fell with particular severity on broadcasters who express unorthodox views, thus tending to deprive the public of “uninhibited, robust and wide-open” debate. New York Times v. Sullivan, 376 U.S. at 270, 84 S.Ct. at 721. Id. Finally, the Commission pointed to the fact that “no broadcaster indicated to us that its station’s coverage of controversial issues has increased as a result of the fairness doctrine.” Order at 5050.
These findings, taken together, reasonably support the Commission’s ultimate conclusion that elimination of the fairness doctrine would unleash a substantial amount of controversial issue programming.13 In light of our limited scope of review, this factually supported conclusion withstands judicial scrutiny in the absence of powerfully contradictory evidence. Cf. Columbia Broadcasting System v. Dem. Nat’l Comm., 412 U.S. at 122-123, 93 S.Ct. at 2096 (“The Court of Appeals failed to give due weight to the Commission’s judgment [that], on balance, the undesirable effects of the right of access urged by respondents would outweigh the asserted benefits”). Petitioners’ various arguments to the contrary, although not without force, serve ultimately to underscore the complexity of this issue, but they fail fatally to undermine the FCC’s ultimate conclusion.
*71E
A final criticism directed at the Order concerns the Commission’s decision to eliminate the first part of the fairness doctrine, which requires broadcasters “to cover vitally important controversial issues of interest in their communities”. Order at 5058 n. 2. Review of this determination is rendered difficult by the modestly peripheral role that Part One has played throughout the case. As the Commission recognized, “an overwhelming majority of the complaints we receive and virtually all our orders directing licensees to take corrective action ... involve the second prong of the doctrine.” Inquiry Concerning Alternatives to the General Fairness Doctrine Obligations of Broadcast Licensees, 2 FCC Red Vol. 17 5272, 5289 (1987) (“Alternatives Report”) (quoting 1985 Fairness Report, 102 FCC 2d at 161). By the Commission’s account, most of the evidence relating to the fairness doctrine’s chilling effect and interference with editorial discretion concerned the second part of the doctrine. Indeed, in view of the limited demands placed on licensees by Part One of the fairness doctrine, the FCC expressly disclaimed a finding that, standing alone, the first part of the doctrine would be unconstitutional. Reconsideration Order, 3 FCC Red 2035, 2038 (1988).
The Commission’s policy decision to jettison Part. One is explained, in part, by reference to the perceived inseverability of the fairness doctrine’s two components. Order at 5048. As the court’s opinion convincingly demonstrates, however, the Commission’s severability argument is more in the nature of a conclusion than an explanation. Maj.Op. at 668. More plausible is the Commission’s contention that, as the first part of the fairness doctrine is “largely duplicative” of the requirement that broadcasters cover issues responsive to the needs of their community, retention of Part One would produce “no added public benefit”. Reconsideration Order at 2038. This point is rather unilluminating, however, in light of the Commission’s emphasis elsewhere on the distinctions between Part One of the fairness doctrine and the requirement of community issue programming. Brief of Syracuse Peace Council at 48 (the issue responsive standard does not mandate coverage of “controversial public issues of public importance such as require coverage pursuant to the Fairness Doctrine”) (quoting Deregulation of Radio, 84 FCC 2d 968, 983 n. 36, recon. denied, 87 FCC 2d 797 (1981), rev’d in part on other grounds, Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413, 1430-32 (D.C.Cir.1983) cert. denied, Black Citizens for a Fair Media v. FCC, 467 U.S. 1255, 104 S.Ct. 3545, 82 L.Ed.2d 848 (1984). Indeed, petitioners point out that the FCC loosened the issue-responsive obligation in part because of a distinct obligation imposed under Part One. Id. at 979. In light of the admitted difference between the two regulatory standards, I am of the view that the Commission’s “largely duplicative” rationale is inadequate.
Despite these deficiencies, I nonetheless agree that the Commission reasonably eliminated Part One in light of the FCC’s findings that the explosive growth in media outlets, combined with the removal of the deterrent to controversial public issue programming imposed by Part Two of the doctrine, will adequately ensure availability of such programs. Reconsideration Order at 2038. The reasonableness of the Commission’s decision to eliminate Part One is reinforced by the (inevitably) predictive quality of the FCC’s reasoning. It is in this sense that I agree with Judge Williams that the Commission is entitled to conclude that elimination of Part One would not create an impermissible regulatory gap. Maj.Op. at 668. As petitioners have not effectively countered the FCC’s findings, the Commission should be permitted, in effect, to experiment with this reform.
For the foregoing reasons, I conclude that the FCC’s Order in this case should successfully stand in the face of petitioners’ onslaught. But in arriving at this destination, I can only end the journey by looking back on the trip and concluding that the Ashwander -inspired detour need not have been taken. Since my colleagues have chosen a very different road map to *72guide them, I am constrained to concur only in the court’s judgment.
. The FCC could not have been more explicit in rejecting the validity of a decision based independently on public interest grounds:
A meaningful assessment of the propriety of the doctrine, therefore, necessarily includes an evaluation of its constitutionality. If the doctrine impedes the realization of First Amendment objectives ... a fortiori it dis-serves the public interest.
Order at 5046.
. Although I rely (necessarily) on the record for this conclusion, I cannot resist noting en pas-. sant that both the FCC and attentive Commission watchers have, in other fora, unequivocally viewed the Order as constitutionally driven. See, e.g., Broadcast Deregulation: The Reagan Years and Beyond, 40 Ad.L.Rev. 345 (1988). For example, former FCC Chairman Wiley, a lion of the communications bar, stated that the viability of the public trustee concept "was brought to a head by the FCC's most recent and bold action to abolish as unconstitutional the Fairness Doctrine.” Id. at 350. FCC Chairman Patrick, in reply, recognized that "[o]n a narrow constitutional basis, the Commission applied the Red *59Lion test ... upon that very narrow constitutional ground and test we found [the fairness doctrine] to be unconstitutional.” Id. at 356.
. In 1987, the FCC so explained the different tone of the 1985 Report:
We believe, however, as we reiterate today, that our analysis of the fairness doctrine in 1985 was in fact informed and driven by First Amendment principles, and with the uncertainty of the doctrine’s codification removed, and the Meredith court’s directive to consider the constitutional issues, we believe it is now incumbent upon us to consider the doctrine in terms of the inextricable constitutional issues upon which the policy rests."
Order at 5062 n. 62 (citations omitted).
. It bears noting that, later in its opinion, the court candidly recognizes that the ultimate conclusion of the 1985 Report was to continue enforcement of the fairness doctrine. Maj.Op. at 666. This fact alone suggests that the Order now under review cannot be read as indiscriminately incorporating the 1985 Report's conclusion.
. The court’s position is essentially that, because public interest and First Amendment values “overlap," there must be sufficient basis in the Order for affirmance solely on public interest grounds. Maj.Op. at 658-659. The court refuses to recognize that the Order does not contain an "in the alternative" determination that the fairness doctrine contravenes the public interest. Rather, the FCC has engaged in a Red Lion analysis and concluded that, as the fairness doctrine violates the First Amendment, a fortiori it disserves the public interest. It is in this sense that the public interest decision is a tag-along, driven entirely by the constitutional analysis.
. As the fairness doctrine itself is not required by statute, Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C.Cir.1986), the Commission’s decision to view the public interest in First Amendment terms is subject only to limited review. Specifically, the FCC’s position as to the public interest must not be "so implausible that it could not be ascribed to a difference in view or the product of agency expertise," Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and must evince "a rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962).
. The cases cited by the majority in its treatment of remand are, in this respect, inapposite. Maj.Op. at 657. For example. Salt River Project Agrie. Improvement Power Dist. v. United States, 762 F.2d 1053 (D.C.Cir.1985), involved an agency decision that, because of inadequate or erroneous findings, could not be affirmed as it came to the court. In such a situation, it was unobjectionable for the court to presume that the agency would, on remand, make a corrective finding that was compelled by the evidentiary record. This approach, however, is not justified where, as here, the record squarely presents us with a legitimate (constitutional) basis for decision. Similarly, in Communication Workers of Am. v. NLRB, 784 F.2d 847 (7th Cir.1986), the agency was affirmed based on a ground of decision which the agency had explicitly stated was independent of another (erroneous) ground of decision. Id. at 851. Such an independent ground is simply not present in the Order before us.
. The briefs uniformly speak of the FCC’s "constitutional'' decision under Red Lion. See, e.g., Brief of Geller and Lampert at 1, 3, 5, 6, 15; Brief of SPC at 2, 3-7, 16; Brief of People for the American Way at 2; Brief of United Church of Christ at 41; Brief of Common Cause at 20; Brief of Democratic National Committee at 6. The court finds solace in the fact that some of the briefs do not label the FCC’s factual conclusions regarding chilling effect and media growth "constitutional” findings. Maj.Op. at 659-60 n. 4. Yet, the parties universally relate these findings to the Red Lion framework. See, e.g., Brief of Meredith Corp. at 20.
. This point undermines the court’s conclusion that, under Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (Brandeis, J., concurring) (1935), this case must be decided independently on public interest grounds. Most commonly, Ashwander serves to prevent the possibility of judicial invalidation, on constitutional grounds, of the actions (especially legislative enactments) of coordinate branches. Where, as here, the government refuses to regulate (or, more precisely, to continue to regulate) because of perceived constitutional constraints, a judicial decision to uphold or reject the government’s position has no such constitutional consequences. As we are called upon to restate the principles articulated in Red Lion and exercise administrative law-type scrutiny over the FCC's factual conclusions, there is no need to get all in a lather about Ashwander principles.
. Although the FCC sets forth the view (in other portions of the Order) that Red Lion itself may no longer be viable, the Commission expressly stated that reconsideration of Red Lion lies solely within the province of the Supreme Court (citing Branch v. FCC, 824 F.2d 37 (D.C.Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988)) and that the Order is thus based on a Red Lion analysis. Order at 5065 n. 103. Just so. It should therefore go without saying that the constitutional analysis in this opinion is grounded squarely (and, hopefully, rightly) on Red Lion’s methodological approach.
. This defect in petitioners’ constitutional argument does not, of course, relieve the FCC of the obligation to support its conclusion that viewpoint diversity exists in the absence of the demands imposed by the fairness doctrine. This point is discussed infra in section D of the opinion.
. The Commission’s statements regarding "governmentally coerced" speech are not found in *70the portion of the Order addressed to the fairness doctrine’s chilling effect. Order at 5049-50. Rather, coerced speech is examined in connection with the doctrine’s impact on editorial discretion, id. at 5050-51, and with the FCC’s analysis of the continued viability of different First Amendment standards for print and broadcast media. Order at 5052-57. The latter issue involves sensitive territory which I respectfully decline to explore.
. Petitioners claim that, under Red Lion, the proper response to such a chilling effect is more stringent enforcement of part one of the fairness doctrine, which requires reasonable coverage of controversial issues. This contention is based on the statement in Red. Lion that "if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage ... the Commission is not powerless to insist that [broadcasters] give adequate and fair attention to public issues." Red Lion, 395 U.S. at 393, 89 S.Ct. at 1808. In light of the reasonableness of the Commission's findings regarding the growth of media outlets and the fairness doctrine’s net negative impact, petitioners’ argument should be rejected. Once it is accepted that diverse viewpoints will be available to the public due to the growth of media outlets and the elimination of part two of the fairness doctrine, petitioners' proposed remedy unjustifiably burdens editorial discretion. As the Court stated in Red Lion, "it would be better if the FCC’s encouragement were never necessary to induce the broadcasters to meet their responsibility". Id.