concurring:
I fully agree with my colleagues that the Federal Energy Regulatory Commission (“FERC”) may not escape the strictures of section 318 of the Federal Power Act (“FPA”), 16 U.S.C. § 825q, simply by claiming that it and the Securities and Exchange Commission (“SEC”) are not regulating “the same subject matter,” for it is clear that both agencies have ruled on the price of coal between Ohio Power Company (“Ohio Power”) and its subsidiary, Southern Ohio Coal Company (“Southern Ohio”). See Majority Opinion (“Maj. Op.”) at 1405-1408.
In my view, however, for section 318 to divest FERC of jurisdiction, a person must also be subject to conflicting requirements of the Public Utility Holding Company Act (“PUHCA”), 15 U.S.C. §§ 79 et seq., and the FPA. I base this conclusion not only on the text of the statute, but also because section 13 would otherwise serve no purpose. Applying this interpretation to the case sub judice, I am not convinced that the SEC’s orders (under the PUHCA) and FERC’s decision (under the FPA) are in conflict. Accordingly, I would uphold FERC’s determination that section 318 does not bar its jurisdiction in this case.
I concur in the judgment of my colleagues, however, and would grant the petition for review, on the alternate ground that FERC’s decision is contrary to section 35.14(a)(7) of its own regulations, 18 C.F.R. § 35.14(a)(7).
I.
Section 318 of the FPA provides in relevant part:
*338If, with respect to the issue, sale, or guaranty of a security, * * * or the acquisition or disposition of any security, capital assets, facilities, or any other subject matter, any person is subject both to a requirement of the Public Utility Holding Company Act of 1935 * * * and to a requirement of this chapter * * *, the requirement of the Public Utility Holding Company Act of 1935 shall apply to such person, and such person shall not be subject to the requirement of this chapter * * * with respect to the same subject matter, unless the Securities and Exchange Commission has exempted such person from such requirement of the Public Utility Holding Company Act of 1935, in which case the requirements of this chapter shall apply to such person.
16 U.S.C. § 825q (emphasis added). As I parse this provision, there is a jurisdictional conflict (and FERC must yield jurisdiction to the SEC) if, and only if, a person is subject to a conflicting “requirement” of both PUHCA and the FPA, and the requirements are “with respect to the same subject matter.” The first condition is a logical necessity, for even if there is dual jurisdiction over “the same subject matter” (the second condition), if there is no conflict, then there is no need for FERC to yield to the SEC.
As noted above, I agree with my colleagues that the second condition has been met in this case: FERC and the SEC are clearly regulating the same subject matter, namely, the price of coal between Ohio Power and Southern Ohio. I am not so sure, however, that there is a conflict between the relevant SEC orders and FERC's decision below.
In 1971, the SEC (pursuant to the PUH-CA) authorized the formation of Southern Ohio on the condition, inter alia, that “[t]he charges for coal by Southern Ohio will be based on an amount equal to the actual cost of Southern Ohio in developing the reserve and mining such coal, * * Ohio Power Co., Release No. 17,383, at 2 (Dec. 2, 1971) (SEC) (emphasis added). In its 1978 order approving the transfer of certain mine and other coal properties from Ohio Power to Southern Ohio, the SEC further stated that “[t]he price at which SOhio coal is sold to AEP System companies will not exceed the cost thereof bo the seller.” Ohio Power Co., Release No. 20,-515, 14 SEC Docket 928, 929 (Apr. 24,1978) (emphasis added).
In the decision below, FERC (pursuant to the FPA) ruled that, based on the market price for comparable coal, the price Ohio Power paid for Southern Ohio coal was unreasonably high; FERC therefore disallowed Ohio Power’s request for a rate increase based on those costs. 39 FERC ¶ 61,098, at 61,285-86 (1987), reh ’g denied, 43 FERC ¶ 61,046 (1988).
In this petition, Ohio Power maintains that there is a jurisdictional conflict by arguing (and, incidentally, implicitly conceding that section 318 requires a conflict) that section 13(b) of the PUHCA, 15 U.S.C. § 79m(b), mandates a cost standard and that, in any event, the SEC in this case required Southern Ohio to set its price at cost. I disagree.
Although section 13(b) includes the phrase “at cost,” Congress intended section 13(b) to avoid “excessive charges” resulting from the lack of arm’s-length bargaining and open competition between public utility holding companies and their subsidiaries. PUHCA § 1(b)(2) (emphasis added), 15 U.S.C. § 79a(b)(2); see also North American Co. v. SEC, 327 U.S. 686, 701 & n. 11, 66 S.Ct. 785, 794 & n. 11, 90 L.Ed. 945 (1946) (citing congressional findings underlying section 1(b)). The SEC has interpreted section 13(b) to mean that “[n]o subsidiary company of a registered holding company * * * shall perform any service or construction for, or sell any goods to, any associate company therefore, or enter into any contract to do so, at more than cost * * 17 C.F.R. § 250.90(a)(2) (emphasis added). Indeed, the SEC even permits a market-price test for the sale of goods between such affiliates. See 17 C.F.R. § 250.92(b). I cannot conclude that section 13(b) necessarily mandates strict at-cost pricing between public utility holding companies and their associates.
*339Ohio Power also argues that, in any event, the SEC did not authorize a market approach in this case. But this argument is misplaced, for the issue is whether there is a conflict in requirements under the two statutes. Because the SEC in 1978 limited the price of coal only to cost as a ceiling, see Ohio Power Co., Release No. 20515, 14 SEC Docket 928, 929 (Apr. 24, 1978), I find no conflict between that requirement and FERC’s requirement that Ohio Power pay market price, where, as in this case, the market price is less than cost. The SEC’s 1971 order is not to the contrary, for it requires only that the price be “based on” cost; the later order imposing cost as a ceiling is certainly “based on” cost.
Moreover, as my colleagues note, see Maj. Op. at 1408-09, the SEC’s approval of the various transactions was grounded on the financial aspects of the corporate arrangements, not on the reasonableness of the price paid for the coal. Ohio Power therefore reads too much into the SEC orders when it claims that the SEC expressly conditioned its approval of the affiliate arrangement on a strict cost-based standard — Ohio Power relies too heavily on what seems to be merely boilerplate language. . Accordingly, because I read the SEC’s orders to permit Ohio Power to pay less than cost for the coal, FERC’s imposition of a market price less than cost does not in this case create a jurisdictional conflict. As FERC stated below: “it is not clear that the SEC requires Ohio Power to purchase coal from its subsidiary at cost, rather than at market price. The SÉC orders which Ohio Power cites for this proposition * * * do not appear to mandate the cost-based price where a market price would be lower, rather they permit a price up to a cost-based price.” 39 FERC at 61,276.
In short, although Ohio Power has met the second condition of section 318 (both agencies are regulating the “same subject matter,” namely, the reasonableness of the price paid), it has not met the first. Under the facts of this case, the SEC has not precluded a price less than cost; FERC’s setting of the allowable price at a market price less than cost therefore does not create a conflict that would bring section 318 into play.
I note in passing that, under my view, if FERC had sought to impose a price higher than cost (i.e., if the market price determined by FERC were higher than cost), then FERC’s requirement would clearly conflict with the SEC’s requirement and, under section 318, FERC would have to abide by the SEC’s determination. This implies that, in a case where the SEC has set cost as a ceiling, FERC has jurisdiction to impose a market price only if that price is less than cost. FERC in dictum below, however, would have permitted Ohio Power to recover the market price even if that price exceeded cost. See 39 FERC at 61, 287-88. Although this is a problematic aspect of the decision below, we need not pass on its validity under section 318, for that case is simply not before us today.
II.
Ohio Power argues in the alternative that, even if section 318 does not apply, section 35.14(a)(7) of FERC’s own rules bars it from imposing its market-price test. I would agree and grant the petition on this ground.
Section 35.14(a)(7), which governs fuel price adjustment clauses in filed rate schedules, provides in pertinent part:
Where a utility purchases fuel from a company-owned or controlled source, the price of which is subject to the jurisdiction of a regulatory body, such cost shall be deemed to be reasonable and includable in the adjustment clause.
18 C.F.R. § 35.14(a)(7) (emphasis added). There is no dispute that this rule applies to the transaction in this case; the only issue on appeal is the meaning of the word “deemed.” FERC, affirming the administrative law judge on this point, found that the regulation creates only a rebuttable presumption of reasonableness. See 39 FERC at 61,287-88. Ohio Power challenges this conclusion, arguing that the word “deemed” establishes instead a conclusive presumption.
*340The applicable standard of review is clear. Although a reviewing court must defer to an agency’s interpretation of its own rules, see Western Union Telegraph Co. v. FCC, 815 F.2d 1495, 1503 (D.C.Cir. 1987), no deference is owed an interpretation at odds with the plain meaning of the text, see Union of Concerned Scientists v. NRC, 711 F.2d 370, 381 (D.C.Cir.1983) (“When an agency’s interpretation flies in the face of the language of the rules themselves, it is owed no deference.”).
Although the provision at issue has apparently not been interpreted in any published opinion, courts construing the word “deemed” have generally found that it es- • tablishes a conclusive presumption. See H.P. Coffee Co. v. Reconstruction Finance Corp., 215 F.2d 818, 822 (Emer.Ct.App. 1954) (finding “almost unanimous judicial determination that the word [‘deemed’], when employed in statutory law, creates a conclusive presumption”) (citing cases); see also Dameron v. Brodhead, 345 U.S. 322, 326-27, 73 S.Ct. 721, 723-24, 97 L.Ed. 1041 (1953) (rejecting, in a case involving state taxation of a serviceman’s personal property, the argument that “deemed” implies a rebuttable presumption, because such a construction would nullify the statute); Kyzar v. Califano, 597 F.2d 68, 71 (5th Cir.1979) (where statute provided that an insured child is “deemed dependent” upon a stepparent if the child was living with the stepparent at the time of death of the natural parent, Congress intended that dependency would be conclusively established upon proof of the objective criteria); Kohn v. Myers, 266 F.2d 353, 357 (2d Cir.1959) (“The word ‘deemed’ gives rise to a conclusive presumption or substantive rule of law that the acquisition of assets from a bankrupt after a petition of bankruptcy is filed is not in good faith if the transferee knew the petition was pending and did not have reasonable cause to believe that it was not well founded.”). Numerous state court decisions, too many to list here, are in accord.
Moreover, if the intent of the regulation were to create a rebuttable presumption, as FERC now contends, then the rule would be superfluous, for it has long been settled that a utility’s costs are presumed (subject to rebuttal) to be prudently incurred. See Missouri ex rel. Southwestern Bell Telephone Co. v. Missouri Pub. Serv. Comm., 262 U.S. 276, 289 n. 1, 43 S.Ct. 544, 547 n. 1, 67 L.Ed. 981 (1923); Anaheim v. FERC, 669 F.2d 799, 809 (D.C.Cir.1981).
The history of section 35.14(a)(7) also supports Ohio Power’s reading of the provision, for FERC has twice proposed and rejected a different rule to accomplish the result that it now claims flows from the existing rule. First, as originally proposed by the Federal Power Commission (“FPC”) in 1973, the regulation did not contain the “deemed” language:
Where the cost of fuel includes fuel from company owned or controlled sources, that fact shall be noted and described as part of any filing. Only the reasonable cost of such fuel may be included. Amounts collected from customers in excess of such reasonable cost shall be subject to refund.
38 Fed.Reg. 17,253 (1973) (emphasis added). Only the unitalicized sentence has been retained in the current regulation. After public comment, the second and third sentences were modified to its current version:
Where the cost of fuel includes fuel from company-owned or controlled sources, that fact shall be noted and described as part of any filing. Where the utility purchases fuel from a company-owned or controlled source, the price of which is subject to the jurisdiction of a regulatory body, such cost shall be deemed reasonable and includable in the adjustment clause. * * * Fuel charges which do not appear to be reasonable may result in the suspension of the fuel adjustment clause or cause an investigation thereof to be made by the Commission on its own motion under section 206 of the Federal Power Act.
39 Fed.Reg. 28,911 (1974) (emphasis added). When the rule was eventually promulgated, the FPC explained that “[t]he modification provide[s] that when a utility purchases fuel from an owned or controlled source and the price is subject to the jurisdiction of a regulatory body, the cost of the fuel may be included in the fuel adjust*341ment clause.” 39 Fed.Reg. 40,583 (1974) (emphasis added). The addition of the “deemed” language suggests, albeit weakly, that the prior version, which was rejected and which provided no special treatment for affiliate fuel purchases subject to the jurisdiction of another regulatory body, would have accomplished the result FERC now seeks to impose.
Second, in 1979 FERC proposed to amend section 35.14(a)(7) to require utilities to file, as rate schedules, all contracts for fuel purchases from company-owned or company-controlled sources, regardless of whether the price was subject to the jurisdiction of a regulatory body. See 44 Fed.Reg. 28,683 (1979). The stated purpose of this proposal was “to further aid the Commission in fulfilling its responsibility to ensure that utilities are purchasing fuel at reasonable prices and that only allowable costs are being passed through in the fuel cost adjustment clause.” Id. at 28,684; see also 45 Fed.Reg. 82,272 (1980). Although FERC later determined that its adoption of a market-price test for determining the reasonableness of affiliate fuel costs made the proposed revision unnecessary, see 50 Fed. Reg. 24,779 (1985), it is significant that FERC’s proposal would have been superfluous had the provision already established merely a rebuttable presumption of reasonableness, because there would have been no question that FERC would have had independent jurisdiction to review the contracts.
FERC relies heavily on an interpretation of the section in a 1975 FPC chairman’s letter to a Senate Subcommittee, but that letter is not persuasive. The letter merely states that section 35.14(a)(7) creates “a presumption of reasonableness” without specifying whether the presumption is rebuttable or conclusive. The Utility Act of 1975: Hearings on S. 594 Before the Sub-comm. on Intergovernmental Relations, Senate Com. on Government Operations, 94th Cong., 1st Sess. 500, 514 (1975).
Finally, FERC argues that its statutory mandate to ensure that rates are just and reasonable implies that section 35.14(a)(7) cannot be read to foreclose FERC from independently determining the reasonableness of wholesale utility charges. But this argument is valid only if one ignores section 35.14(a)(7). Although, as a general matter, FERC may have the authority to make an independent determination of reasonableness, section 35.14(a)(7) forecloses such a route to the extent that the price is already subject to the jurisdiction of another regulatory body. In other words, section 35.14(a)(7) establishes, as a policy matter, that if another regulatory body has already passed on the fuel price, then FERC will abide by that determination. This reading is entirely consistent with the purpose of section 35.14(a)(7), which is to avoid unreasonable fuel costs between affiliated companies, for if another agency (e.g., the SEC) has already made that determination, then there is no reason for FERC to second-guess that decision.
* * * * * *
I concur with my colleagues that the petition for review should be granted, but not on the basis of section 318 of the FPA. I do not find, in this case, a collision between the two agencies operating in this field. Rather, I would find that FERC erroneously construed section 35.14(a)(7) of its regulations to establish merely a rebut-table presumption of reasonableness. Under the regulation, because the prices of Ohio Power’s fuel from its affiliate are subject to the jurisdiction of the SEC, such costs must be conclusively presumed reasonable.