concurring in part and dissenting in part:
I agree with Judge Silberman’s characterization of the Board’s rationale as “inadequate to support such a major change in the law,” Silberman Opinion at 1178, and even more with Judge Edwards’ determination that the Board’s order “rests on a completely inadequate theory and fails to recognize the settled legal doctrines which bound this case,” Edwards Opinion at 1154. I therefore join my colleagues in denying the petition for enforcement. Nevertheless I dissent from their decision to remand. In my view, it follows ineluctably from the "settled legal doctrines” Judge Edwards invokes that the Board’s merit pay decision “infringes on the employer’s right to bargain for and implement an admittedly lawful wage proposal.” Colorado-Ute Elec. Ass’n, Inc. v. NLRB, 939 F.2d 1392, 1405 (10th Cir.1991). Accordingly, I would simply deny enforcement of the Board’s order.
It is beyond dispute that an employer commits an unfair labor practice if it unilaterally changes a mandatory subject of bargaining without first bargaining to impasse. Litton Fin. Printing Div. v. NLRB, — U.S.-, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991). It is equally settled, however, that if the employer first bargains in good faith to impasse it may proceed to implement its proposed change, notwithstanding the union’s ultimate failure to consent. Local Union No. 47, Int’l Bhd. of Elec. Workers v. NLRB, 927 F.2d 635, 642 (D.C.Cir.1991). That is exactly what occurred here. McClatchy proposed to institute a discretionary merit raise system, a proposal subject to mandatory bargaining. See NLRB v. Katz, 369 U.S. 736, 745-46, 82 S.Ct. 1107, 1112-13, 8 L.Ed.2d 230 (1962). The Union opposed McClatchy’s proposal and, as the Board expressly found, the parties reached a bargaining impasse after “engaging] in in-*58depth, good faith negotiations.” JA 314. After impasse McClatchy was entitled under established law to implement its proposal and to grant merit increases. Thus, in attempting to prevent implementation, the Board impermissibly “exert[ed] its power to dictate the substantive terms of the collective bargaining agreement.” Colorado-Ute, 939 F.2d at 1404 (citing H.K. Porter Co., Inc. v. NLRB, 397 U.S. 99, 103-04, 90 S.Ct. 821, 823-24, 25 L.Ed.2d 146 (1970); NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 401-02, 72 S.Ct. 824, 828, 96 L.Ed. 1027 (1952); and NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (I960)). That the implementation here involved exercise of employer discretion should not subject McClatchy to any additional bargaining obligation. It is precisely this discretionary aspect of the proposal that stalled negotiation and led to impasse.
Given the clear precedent supporting the lawfulness of McClatchy’s conduct, I find it more than merely “difficult to comprehend the Board’s judgment in this case,” as did Judge Edwards, Edwards Opinion at 45, I find it impossible. For this reason, I would refuse to enforce the Board’s unsupported (and unsupportable) decision and, I hope, lay this issue to rest. “There is no necessity to treat the case like a yo-yo,” Murray v. Buchanan, 720 F.2d 689, 693 n. 6 (D.C.Cir.1983) (en banc) (MacKinnon, J., concurring specially), vainly remanding for the Board to concoct a different but equally unavailing rationale. Further, even were remand appropriate, I see no justification for this court to serve up for the Board “a smorgasbord of possible explanations of what the Board has done.” Enterprise Ass’n of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Mach. & Gen. Pipefitters of N.Y. & Vicinity v. NLRB, 521 F.2d 885, 891 n. 9 (D.C.Cir. 1975). Notwithstanding the erudition evident in my colleagues’ opinions, I suggest that the Board’s decision and supporting rationale should spring from its own specialized expertise which, after all, accounts in large part for the deference we accord its decisions. See International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 719 (D.C.Cir.1987) (“[T]he very logic for deference to agency decisionmaking ... is to place policy choices (within the limits permitted by statute) in the hands of delegated agents of Congress, subject to their expertise and experience.”) (citation and emphasis omitted).