dissenting in part.
In authorizing the Secretary of Defense to establish a new personnel system, including a temporary labor-management relations subsystem, the National Defense Authorization Act for Fiscal Year 2004, codified in relevant part at 5 U.S.C. § 9901 et. seq. (Chapter 99), directs — in subsection (b)(4) — that any such system must “ensure that employees may ... bargain collectively as provided for in this chapter.” 5 U.S.C. § 9902(b)(4). According to the court, despite this system requirement, subsection (m), which authorizes the Secretary to create the temporary labor relations subsystem, empowers him to abolish collective bargaining altogether — a position with which even the Secretary disagrees. Because I believe that subsection (m) does no such thing, I respectfully dissent from Parts I and II of the court’s opinion.
I.
Chapter 99 permits the Secretary to create a new “human resources management system.” 5 U.S.C. § 9902(a). Any new system the Secretary creates must comply with a series of “system requirements.” Id. § 9902(b). For example, the new personnel system must be “flexible” and “contemporary,” may not impinge on certain antidiscrimination and whistleblower protections, and must include a “performance management system” that incorporates a “fair, credible, and transparent employee performance appraisal system.” Id. § 9902(b)(1), (b)(2), (b)(3)(C), (b)(6)(B). At issue here is subsection (b)(4)’s system requirement — that any new personnel system “ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law.” Id. § 9902(b)(4).
Proceeding under Chevron’s first step, the court concludes (1) the phrase “bargain *212collectively as provided for in this chapter” unambiguously “ensures collective bargaining in the first place only insofar as another subsection of the statute provides for it,” Maj. Op. at 1322 (emphasis added), and (2) the only other subsection that “provides for” collective bargaining is (d)(2), which prohibits the Secretary from waiving Chapter 71. See Maj. Op. at 1322-23. Chapter 71, in turn, contains provisions relating to and protecting federal-sector collective bargaining. Given that subsection (m)(l) waives subsection (d)(2), the court holds that the Secretary may create a temporary labor relations subsystem free from subsection (b)(4)’s collective bargaining guarantee. For several reasons, I believe that this reading of Chapter 99 does not reflect the “unambiguously expressed intent of Congress.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
To begin with, subsection (b)(4) would be entirely superfluous if, as the court holds, it protects only the collective bargaining provided for in subsection (d)(2). Subsection (d)(2) incorporates Chapter 71, which declares that employees enjoy the right “to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.” 5 U.S.C. § 7102(2). If this is all subsection (b)(4) refers to, then its guarantee of collective bargaining “as provided for in this chapter” adds nothing to the statute. Given this surplusage, the court’s interpretation runs afoul of a fundamental canon of statutory construction, i.e., that all language in a statute be given meaning. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). This surplusage, moreover, and the ambiguity it produces are fatal to the court’s effort to resolve this case at Chevron step one. As we held in NLRB v. FLRA, 952 F.2d 523 (D.C.Cir.1992), a Chevron step one analysis is not “plausibl[e]” where it yields statutory surplusage. Id. at 532; see also Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C.Cir.2006) (“[The statute] contains surplusage under either reading and, as a result, we cannot say that either proffered construction reflects the Congress’s unambiguously expressed intent.”).
Second, the court’s interpretation produces a serious structural defect. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.”). As the court acknowledges, the temporary labor relations subsystem authorized by subsection (m) is a component of the overall personnel system authorized by subsection (a). See Maj. Op. at 1320 (“Subsection (m) of Section 9902 authorizes DoD to create a new labor relations system within the National Security Personnel System.”). Each of subsection (b)’s requirements, including (b)(4)’s guarantee of collective bargaining, is a “system requirement” for the overall personnel system. Because the subsection (b) system requirements limit the Secretary’s authority under Chapter 99, subsection (m)’s authorization to create a temporary labor relations subsystem cannot, by itself, empower the Secretary to create a subsystem free from the statute’s system requirements. Congress could have exempted subsection (m)’s temporary labor relations subsystem from subsection (b)(4)’s system requirement by providing that the authority granted by subsection (m)(l) exists notwithstanding both subsec*213tion (d)(2) and (b)(4). But this Congress did not do.
Third, subsection (b)(4) cannot refer only to the collective bargaining rights protected by subsection (d)(2)’s incorporation of Chapter 71 because Chapter 71’s protections, including its protections of collective bargaining, were waived by the very House bill in which subsection (b)(4) originated. See Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C.Cir.1997) (noting the tools of statutory construction used in Chevron step one analysis “include examination of the statute’s text, legislative history, and structure”). Subsection (b)(4) first appeared in the Civil Service and National Security Personnel Improvement Act, H.R. 1836, 108th Cong. § 102 (2003) (as introduced), which was later incorporated into the House version of the Defense appropriations bill, see National Defense Authorization Act for Fiscal Year 2004, H.R. 1588,108th Cong. § 1121 (2003) (as passed by the House). Although each bill contained subsection (b)(4)’s protection of collective bargaining verbatim, including the phrase “as provided for in this chapter,” neither included Chapter 71 in its list of nonwaivable provisions nor protected collective bargaining in any other way. See H.R. 1836 § 102 (listing nonwaivable provisions in proposed § 9902(c)(2) and failing to list Chapter 71); H.R. 1588 § 1121 (same). In other words, nothing in subsection (d)(2)’s earlier versions “provided for” collective bargaining in the way the court ascribes to those words.
What, then, did these predecessor bills mean by the phrase “bargain collectively as provided for in this chapter?” As I shall explain in more detail in Part II, and as we recently held in National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C.Cir.2006), the phrase “bargain collectively” is “a term of art with a well-established statutory meaning.” Id. at 857. Because that term has meaning to Congress, it had no need to “provide for” collective bargaining elsewhere in the statute. Instead, the words “as provided for in this chapter” signal that other provisions of the bill modify Congress’s traditional understanding of the term “bargain collectively.” For example, although the duty to bargain normally attaches only at the level of exclusive recognition, see, e.g., United Elec., Radio & Mach. Workers v. NLRB, 986 F.2d 70, 75 (4th Cir.1993) (holding duty to bargain exists only with certified local bargaining unit, not its uncertified international), each bill granted the Secretary authority to choose whether to bargain with national unions or their local affiliates, see H.R. 1588 § 1121 (proposed § 9902(f)(2), permitting the Secretary to choose to bargain at a level above the level of exclusive recognition); H.R. 1836 (same). Making this point explicit, the House Report states that the bill would “provide for collective bargaining at the national level in addition to local collective bargaining.” See H.R. Rep. No. 108-106, at 367 (2003). Thus, as originally understood by the House, subsection (b)(4) “provided for” collective bargaining in ways having nothing at all to do with Chapter 71.
Taking a different approach, the Senate preserved greater protections for collective bargaining but granted the Secretary less flexibility in fashioning a new approach to labor relations. Although the Senate appropriations bill contained no similar provision establishing a new personnel system for the Department of Defense (DoD), see H.R. Rep. No. 108-354, at 758 (2003), U.S.Code Cong. & Admin.News 2003 pp. 1407, 1530, the Senate Committee on Government Affairs had reported out the National Security Personnel System Act, S. 1116, 108th Cong. (2003), which became the Senate’s starting point for its negotiations with the House, see 149 Cong. Rec. *214S14,419-20 (daily ed. Nov. 11, 2003) (statement of Sen. Warner). The Senate bill contained nothing comparable to subsection (b)(4). See S. 1116 § 9902(b). Instead, that bill retained the collective bargaining protections found in Chapter 71 by listing that chapter as one of several nonwaivable provisions. Id. § 9902(c).
Thus, both the House bill and the most comparable Senate legislation offered some protection for collective bargaining. The language that emerged from the Conference Committee incorporated elements of each bill by (1) listing Chapter 71 as a nonwaivable provision (as in the Senate bill), (2) waiving Chapter 71 for six years (as in the House bill), and (3) adding the subsection (b)(4) language (from the House bill). By the court’s logic, when Congress added Chapter 71’s protections to subsection (d)(2)’s list of nonwaivable provisions, thereby strengthening the House bill’s protection of collective bargaining rights, it actually radically redefined subsection (b)(4), confining its system requirement to subsection (d)(2) and freeing the Secretary to eviscerate collective bargaining altogether — something Congress apparently accomplished without amending or even referencing subsection (b)(4). I understand Chapter 99 quite differently. By adding Chapter 71 to subsection (d)(2)’s list of nonwaivable provisions and then — in subsection (m) — promptly waiving that same chapter for six years, Congress indicated that the Secretary’s authority to experiment with a new labor relations subsystem (as advocated by the House) was time-limited, not that the Secretary could exercise that authority without regard to Chapter 99’s system requirements.
The court points to several floor statements in support of the proposition that Congress understood the conference report to have radically departed from both the House and Senate versions of the DoD personnel bill. See Maj. Op. at 1325-26. The views of even these opponents of the bill, however, were far from unanimous. Key senators made clear that although the conference report left the Department free to depart from some elements of Chapter 71, any temporary labor relations subsystem must still comply with core elements of that chapter. For example, Senator Collins, the Senate bill’s chief sponsor and the chief Senate Republican conferee on this issue, explained that while DoD had initially sought authority “to waive virtually all personnel laws and regulations,” she was “pleased we have not included that authority” in the final bill and noted that she “fully expectfs] the labor relations system developed by the Department will abide by the principles enumerated in [C]hapter 71.” 149 Cong. Rec. S14,428. Agreeing, Senator Levin stressed that the compromise provided “substantially better [collective bargaining protections] ... than comparable provisions included in the House bill.” Id. at S14,439.
II.
As mentioned above, our recent decision in National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C.Cir.2006), is critical to a proper understanding of the phrase “bargain collectively as provided for in this chapter.” There, we held that “[i]n the context of federal sector labor-relations, collective bargaining is a term of art with a well-established statutory meaning.” Id. at 857. In Chertoff, we dealt with a statute that, like Chapter 99, permits a federal agency — in that case, the Department of Homeland Security (DHS) — to create a new personnel system. Also like Chapter 99, the DHS statute requires that any new system “ensure that employees may ... bargain collectively.” 5 U.S.C. § 9701(b)(4); see Chertoff 452 *215F.3d at 856-57. In determining the scope of this system requirement, we held that the meaning of the term “bargain collectively” derives from Chapter 71, which provides “the framework for basic collective bargaining for most federal sector employees.” Chertoff, 452 F.3d at 843. We reached this conclusion despite the fact that the DHS statute permits DHS — -just like Chapter 99 permits DoD — to modify Chapter 71’s provisions regarding labor-management relations, including those having some relation to collective bargaining. We explained:
The Government argues that the Department was free to “modify the collective bargaining provisions” of Chapter 71 in promulgating a new HR system pursuant to the [Homeland Security Act (HSA) ]. This is undoubtedly correct. But nothing in the HSA suggests that the meaning of “collective bargaining” under Chapter 71 could be disregarded by the Department in its promulgation of the HR system. There are many “provisions” relating to collective bargaining in Chapter 71 — e.g., resort to [the Federal Labor Relations Authority], determination of appropriate units, handling of refusal-to-bargain complaints, exceptions to arbitral awards, and use of an impasses panel — that the Department was free to ignore in its Final Rule. The core meaning of “collective bargaining” itself, however, could not be ignored or supplanted. Why? Because the HSA states explicitly that, in establishing a new HR system, the Department “shall”
ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law. 5 U.S.C. § 9701(b)(4). This statutory obligation is mandatory, not optional. And if, as shown above, “collective bargaining” means the same thing under both the HSA and the FSLMS, then application of the term under the latter statute cannot possibly be irrelevant to an understanding of how the term applies under the former.
Chertoff, 452 F.3d at 858 (internal citation omitted).
Here we face a similar statute. See also Smith v. City of Jackson, 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (noting “when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes”). Enacted just one year after the DHS statute, Chapter 99 protects collective bargaining in language that mirrors the DHS statute word for word, except that it adds the two emphasized phrases:
(b) Any system established under subsection (a) shall
(4) ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation or negotiability established pursuant to law.
5 U.S.C § 9902(b)(4) (emphasis added); see 5 U.S.C. § 9701(b)(4). Congress added this new language not to give meaning to the term “bargain collectively” (as the court suggests), but rather to make clear that elsewhere in Chapter 99 it was modifying the “core meaning” of collective bargaining in order to give the Secretary additional flexibility. For example, in *216Chertoff we held that granting an employing agency unilateral authority to abrogate collective bargaining agreements conflicts with the core meaning of collective bargaining. Chertoff, 452 F.3d at 860. Yet subsection (m)(8), which provides that the temporary labor relations subsystem will “supersede all other collective bargaining agreements,” 5 U.S.C. § 9902(m)(8), gives the Secretary just this power. Similarly, under Chapter 71, although employing agencies may not bargain over their authority to assign employees, see 5 U.S.C. § 7106(a)(2), they must negotiate over the procedures by which they exercise that authority, see id. § 7106(b)(2). Chapter 99, however, states that no provision of Title 5 shall limit the Secretary’s authority to create a personnel system that regulates “the methods of assigning, reassigning, detailing, transferring, or promoting employees.” 5 U.S.C. § 9902(k)(l)(B). Through such provisions, Congress demonstrated just how collective bargaining “as provided for in this chapter” differs from collective bargaining’s core meaning.
The court accuses me of “distorting] the plain meaning of the phrase ‘as provided for,’ reading it to mean ‘unless otherwise provided for.’ ” Maj. Op. at 1323. My reading, however, is driven by Chertoff, our obligation to avoid statutory surplusage, and Chapter 99’s legislative history. To be sure, Congress could have written subsection (b)(4) to read “except as otherwise provided for” instead of “as provided for.” But given Chertoff, the current language means exactly the same thing. Imagine a statute allowing sixteen-year-olds to “drive as provided for in this statute,” but providing elsewhere that they may not do so without an adult in the car or after sunset. No one would say that because this statute fails to “provide for” an affirmative definition of driving, the DMV could issue regulations barring all driving by sixteen-year-olds. Nor would anyone fail to understand that the legislature instead used the words “as provided for” to clarify that the driving authorized for sixteen-year-olds differs from the normal rules of the road. The same is true here. Just as my imaginary legislature understood the term “drive,” Congress, according to Chertoff, understood the term “bargain collectively,” leaving it with no need to define the term elsewhere in Chapter 99. Likewise, just as my hypothetical statute modifies the common meaning of “driving” by requiring supervising adults and barring night-time driving, Chapter 99 modifies collective bargaining’s core meaning by permitting national-level bargaining and prohibiting bargaining over the methods of assigning employees.
The court finds my hypothetical unhelpful because “the real statute in this case does provide for collective bargaining.” Maj. Op. at 1324. But this argument merely restates the court’s conclusion, i.e., that the words “as provided for” make sense only if they refer to an affirmative definition elsewhere in the statute. As the hypothetical demonstrates, however, this is hardly the only plausible interpretation of “as provided for.” Indeed, the House bill in which subsection (b)(4) first appeared contained no definition of collective bargaining, thus demonstrating that the House understood the phrase “as provided for” to refer not to an affirmative definition of collective bargaining rights, but rather to limitations on collective bargaining found elsewhere in the statute. See supra pp. 1332-34.
That said, I recognize that my reading of the statute does create surplusage within subsection (b)(4) itself because that subsection also states that its requirements are “subject to the provisions of this chapter.” See Maj. Op. at 1323. Because such *217surplusage makes it impossible to resolve this case at Chevron step one, see supra pp. 1332-33, I would proceed to Chevron’s next step, deferring to the Secretary’s interpretation of the statute so long as it is “reasonable.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778.
The Secretary’s interpretation of the statute is quite clear: subsection (m)(l)’s waiver of Chapter 71 neither frees him from subsection (b)(4)’s system requirement nor permits him to abolish collective bargaining altogether. Describing the scope of his Chapter 99 authority to create the temporary labor relations subsystem, the Secretary stated in the preamble to the challenged regulation that the statute “requir[es] that employees be authorized to bargain collectively, as provided for in [C]hapter 99 (not as provided for in [C]hapter 71).” Department of Defense Human Resources Management and Labor Relations Systems, 70 Fed.Reg. 66,116, 66,177 (Nov. 1, 2005). Far from contending that subsection (b)(4) has no application to the temporary labor relations subsystem, the Secretary instead insisted that the subsystem fully complies with this system requirement:
The labor relations system is consistent with the general parameters Congress provided, including the process for involving employee representatives (see 5 U.S.C. 9902(m)(3) and (4)). It mandated that the new system may not expand the scope of collective bargaining beyond the scope of bargaining available today under chapter 71, even where provisions of title 5 are waived or waivable (5 U.S.C. 9902(m)(7)), and required that employees be authorized to organize and bargain collectively within the framework established in chapter 99, that is, within the framework of a system that promotes a collaborative issue-based approach to labor relations and which is developed, established, and implemented to enable the Department’s civilian workforce to better support the Department’s national security mission (5 U.S.C. 9902(b) (í) ).
Id. at 66,176 (second and third emphases added); see also id. at 66,177 (“Consistent with the enabling legislation, the labor relations system specifically recognizes the right of employees to organize and bargain collectively subject to limitations established by law .... ”).
Reiterating this view here, the Secretary argues that “[t]he NDAA’s requirement that NSPS [the personnel system] ensure collective bargaining thus contemplates that DoD and [the Office of Personnel Management] should tailor their new labor relations system to DoD’s national security mission, in ways that may differ from the manner in which ‘collective bargaining’ is understood elsewhere.” Appellants’ Br. 30 (emphasis added). Similarly, at oral argument, DoD counsel stated that “[t]his labor relations system that Congress authorized to be crafted is not tied to Chapter 78 [sic], or any other collective bargaining system, because the statute provides that employees may bargain collectively as provided for in this chapter, and subject to the provisions of this chapter, Section 9902(b)(4).” Oral Arg. Tr. 3. Indeed, asked point blank whether the Secretary has authority to eliminate collective bargaining altogether, agency counsel answered no. See Oral Arg. Tr. 7-8. I would defer to this perfectly reasonable interpretation of Chapter 99.
III.
Although the Secretary agrees with me that subsection (b)(4)’s protections apply to the temporary labor relations subsystem, he goes on to assert that in determining the extent of collective bargaining protected by this system requirement — a *218conceptually distinct question — we should look neither to Chapter 71 nor Chertoff, but rather to DoD’s own regulation. Relying on subsection (m)(l), the Secretary argues that Congress granted him “broad authority to redefine collective bargaining within the framework of DoD.” Appellants’ Br. 31. Thus, according to the Secretary, the definition of “bargain collectively as provided for in this chapter” includes not only the substantive changes to the core meaning of collective bargaining found in Chapter 99, but also the temporary labor relations subsystem the Secretary himself creates. See 5 C.F.R. § 9901.903 (defining the word “collective bargaining” by adopting, nearly word for word, the definition of collective bargaining found in Chapter 71, but qualifying the obligation to bargain by adding that such obligation must be met “pursuant to 5 U.S.C. [§ ] 9902 and this subpart” (emphasis added)); compare with 5 U.S.C. § 7103(a)(12) (defining collective bargaining in Chapter 71).
As the unions correctly argue, the Secretary’s interpretation runs counter to Chertoff, which also explains why the court’s alternative Chevron step two holding fails. In Chertoff, DHS argued — much as the Secretary does here — that the mere authority to create a new human resources system freed it from the statute’s system requirements, including protections for collective bargaining. See Chertoff, 452 F.3d at 856-57. Finding that argument “completely unconvincing,” CheHoff explains that because Congress “specified] ‘system requirements’ that DHS must follow in promulgating a [human resources] system,” DHS “does not have a free hand to construct a [human resources] system entirely as it prefers.” Id. So too here. Although Chapter 99 authorizes the Secretary to create a temporary labor relations subsystem that modifies Chapter 71 and “address[es] the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission,” the Secretary may not create that subsystem free from Congress’s overall system requirements, including subsection (b)(4)’s protection of collective bargaining. The addition of the phrases “as provided for in this chapter” and “subject to the provisions of this chapter” to subsection (b)(4)’s collective bargaining system requirement does not distinguish this case from Chertoff. As the Secretary agrees, those phrases refer to substantive restrictions on collective bargaining rights found elsewhere in the statute. Subsection (m)(l), however, contains no substantive modification of core collective bargaining rights. Just as the statute at issue in Chertoff gave DHS general authority to promulgate a new personnel system, subsection (m)(l) vests the Secretary with general authority to create the temporary labor relations subsystem; it says nothing at all about collective bargaining. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”).
The Secretary, however, is not without significant flexibility. In devising the temporary labor relations subsystem, the Secretary has no obligation to comply with any part of Chapter 71 that does not implicate the core meaning of collective bargaining. Moreover, he may, pursuant to subsection (b)(4), depart from the core meaning of collective bargaining to the extent authorized elsewhere in Chapter 99. Applying these principles, I would hold that most, but not all, of the challenged regulation complies with subsection (b)(4)’s system requirement. I’ll begin with the provisions that comply.
*219First, as the court notes, the regulation imposes conduct restrictions on employee representatives, requiring them to meet the same standards imposed on all DoD civilian employees. See Maj. Op. at 1329; 5 C.F.R. § 9901.914(a)(4). Union-appellants fear that such a requirement could unduly impede the vigorous advocacy essential to effective collective bargaining. I agree with the court, however, that we should defer to the Secretary’s interpretation of the regulation as barring only “vulgar or sexually explicit language” and “physical intimidation.” 70 Fed.Reg. at 66,182; see, e.g., Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 52 (D.C.Cir.1999) (“The agency’s construction of its own regulation is controlling ‘unless it is plainly erroneous or inconsistent with the regulation.’ ” (quoting United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977))). So construed, the regulation intrudes not at all on the core meaning of collective bargaining because it is “preposterous” to think that “employees are incapable of ... exercising their ... statutory rights without resort to abusive or threatening language or without resort to a physical response.” Dep’t of the Air Force v. FLRA, 294 F.3d 192, 201 (D.C.Cir.2002) (internal quotation marks and citation omitted).
Second, under the regulation, “implementing issuances”' — directives that “carry out a policy or procedure implementing” the new personnel system, 5 C.F.R. § 9901.103 — supersede any conflicting provisions contained in collective bargaining agreements. 5 C.F.R. § 9901.905(a). In Chentoff, we found such authority to be flatly inconsistent with the core meaning of collective bargaining. Chertoff, 452 F.3d at 858-60. But unlike the statute at issue there, Chapter 99 expressly states that “the labor relations system developed or adjusted under this subsection ... shall supersede all other collective bargaining agreements.” 5 U.S.C. § 9902(m)(8). This provision represents a clear example of how Congress “provided for” collective bargaining differently than it had in the statute at issue in Chertoff.
Third, the challenged regulation expands the range of management rights issues not subject to collective bargaining to include procedures governing “hir[ing], assigning], and directing] employees in the Department; ... assigning] work, making] determinations with respect to contracting out, and ... determining] the personnel by which Departmental operations may be conducted.” 5 C.F.R. § 9901.910(a)(2), (b). Under Chapter 71, procedures regarding such issues are negotiable. See 5 U.S.C. § 7106(b)(2). By contrast, Chapter 99 states that no provision of Title 5 may limit the Secretary’s authority to promulgate regulations regarding the “methods of assigning, reassigning, detailing, transferring, or promoting employees.” 5 U.S.C. § 9902(k)(l)(B). Although I think it not entirely clear whether Congress, by using the term “methods,” intended to give the Secretary sole and nonnegotiable authority to determine the “procedures” for each of these employment actions, the Secretary’s construction of that term seems quite reasonable, and the unions offer no basis for concluding otherwise. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).
In certain other respects, however, I agree with the unions that the regulation’s management rights provision runs counter to Chapter 99. For example, the regulation allows “any management official or supervisor ... to take whatever other actions may be necessary to carry out the *220Department’s mission.” 5 C.F.R. § 9901.910(a), (a)(2). In Chertoff, we invalidated an identical regulation, explaining that it would “[p]resumably ... empower© DHS to take any matter off the bargaining table at any time, regardless of what concessions have already been made by union representatives.” Chertoff, 452 F.3d at 862. As the Secretary wisely concedes, insofar as this provision extends beyond the authority granted in subsection (k)(l), the district court correctly determined that the regulation violates subsection (b)(4). See Appellants’ Br. 33 n. 1.
The new management rights provision also bars negotiation over the procedures through which management “determined ... the technology, methods, and means of performing work.” 5 C.F.R. § 9901.910(a)(2), (b). This provision precludes bargaining over the procedures regarding many day-to-day operational matters, yet I see nothing in Chapter 71 recognizing such a broad management right, see generally 5 U.S.C. § 9701, nor can subsection (k)(l) be so construed. To be sure, subsection (k)(l) frees the Secretary from any duty to bargain over “assigning, reassigning, detailing, transferring, or promoting employees,” 5 U.S.C. § 9902(k)(l)(B) (emphasis added), but the subsection says nothing at all about the methods and means of performing work.
The regulation restricts collective bargaining with respect to management rights in still another way: it limits the scope of bargaining over “appropriate arrangements” for employees adversely affected by the exercise of management rights. See 5 C.F.R. § 9901.910(f)(2). Under Chapter 71, such appropriate arrangements are always negotiable, see 5 U.S.C. § 7106(b)(3), and even under the challenged regulation, management must negotiate over appropriate arrangements for employees affected by the exercise of management rights protected by 5 C.F.R. § 9901.910(a)(3), including the authority “[t]o lay off and retain employees, or to suspend; remove; reduce in pay, pay band, or grade; or take other disciplinary action against such employees.” See 5 C.F.R. § 9901.910(a)(3), (f)(l)(i). With respect to the exercise of other management rights, including the previously described rights to assign employees and determine the methods and means of work, the unions assert that the regulation requires negotiation regarding only “personal hardships and safety measures.” Appellees’ Br. 27 (quoting 5 C.F.R. § 9901.910(f)(l)(ii)). This is incorrect. The regulation states that the “[a]ppropriate arrangements within the duty to bargain include proposals on matters such as personal hardships and safety measures.” 5 C.F.R. § 9901.910(f)(1)(h) (emphasis added). By using the word “include,” the Secretary made clear that this list of negotiable appropriate arrangements is by no means exclusive.
The regulation, however, goes on to narrow significantly the Secretary’s duty to bargain over appropriate arrangements: “[T]he duty to bargain do[es] not include proposals on matters such as the routine assignment to specific duties, shifts, or work on a regular or overtime basis.” Id. § 9901.910(f)(2). In Chertoff we held that a similar regulation conflicted with collective bargaining’s core meaning, see Chertoff, 452 F.3d at 862 (invalidating regulation that similarly took these issues off the table, but also constrained negotiation over all appropriate arrangements to exercise of management rights that had “a significant and substantial impact on the bargaining unit, or on those employees in that part of the bargaining unit affected by the action or event”); see also 5 C.F.R. § 9701.511(e)(2)©. Nothing in Chapter 99 authorizes a different result here. Although subsection (k)(l) does expand man*221agement rights, neither that subsection nor anything else in Chapter 99 permits the Secretary to restrict the right to negotiate over arrangements designed to mitigate the effects of the exercise of management rights.
Finally, the regulation prohibits all employees from bargaining collectively regarding their pay. See 5 C.F.R. §§ 9901.305 (providing that pay system is not subject to bargaining), 9901.903 (barring bargaining regarding “[t]he pay of any employee or for any position”). Federal law prohibits U.S. government employees whose wages are set by statute from bargaining over their compensation. See Fort Stewart Sch. v. FLRA, 495 U.S. 641, 649, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990) (“The wages and fringe benefits of the overwhelming majority of Executive Branch employees are fixed by law, in accordance with the General Schedules of the Civil Service Act, and are therefore eliminated from the definition of ‘conditions of employment’ [that are subject to a duty to bargain].” (internal citation omitted)). DoD’s workforce, however, includes employees who work for what are known as non-appropriated fund instrumentalities (NAFIs), organizations whose funding comes from user fees and whose employees have historically bargained over then-rate of pay. See Appellees’ Br. 29. Such employees include those working in DoD schools, day care centers, and cafeterias. Under the challenged regulation, NAFI employees no longer enjoy the right to bargain over their pay. The Secretary offers two arguments in support of his authority to make this change, neither of which is convincing.
First, the Secretary cites his Chapter 99 authority to create a new “pay for performance evaluation system.” 5 U.S.C. § 9902(b)(6)(I). Yet the Secretary nowhere explains how subsection (b)(4)’s collective bargaining system requirement conflicts with a pay for performance system. In fact, as the unions explain, the mechanics of how pay for performance would work, including the base level of pay, the evaluation criteria, and the degree to which employees are rewarded (or punished) for their job performance, all represent perfectly acceptable subjects of collective bargaining. See Appellees’ Br. 30.
Second, falling back on his general argument that subsection (m)(l) permits him to redefine collective bargaining, the Secretary asserts that since most federal employees may not bargain over their pay, nothing inherent in the term “collective bargaining” protects that right. But this argument ignores the fact that “most” federal employees may not bargain over then-wages because their compensation is set by statute. The Secretary never explains how Chapter 99 permits him to prohibit collective bargaining over compensation by employees whose pay is not set by statute.
IV.
In sum, the court’s Chevron step one analysis fails because nothing in Chapter 99 “unambiguously” permits the Secretary to abolish collective bargaining altogether. I would defer to the Secretary’s perfectly reasonable interpretation that subsection (b)(4) applies to subsection (m)’s temporary labor relations subsystem. The Secretary’s later conclusion that he may define subsection (b)(4)’s protections as he sees fit, however, runs counter to Chertoff. Any departure from the core meaning of collective bargaining must be authorized by Chapter 99. Applying this standard, I would vacate several aspects of the regulation’s expansion of management rights, as well as its abolition of collective bargaining over NAFI pay.