concurring.
I write separately to address the question whether a court, after finding agency action unlawful, should remand the case to the agency without vacating the illegal rule or order. In cases governed by the Administrative Procedure Act, I have long believed that the law requires us to vacate the unlawful agency rule. See 5 U.S.C. § 706(2). I also believe that in cases such as this, in which APA § 706(2) does not apply, vacating and remanding should be the preferred course.
Contrary to the apparent view of Judge Rogers, our precedents on this question fall into no particular pattern. Often we vacate and remand. Sometimes we simply remand. Rarely do we explain why we favored one disposition over the other. And sometimes it is not even clear what disposition we intended.1 Our court’s remedial judgment varies even in seemingly identical cases involving the same agency. This “inconsistent” treatment of cases has not gone unnoticed. See Kristina Daugirdas, Note, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemakings, 80 N.Y.U.L. REV. 278, 293 (2005).
In the past, when we have vacated rules or orders and remanded to the agency, we *427have indicated that we would entertain a motion for a stay of the mandate while the agency took corrective action.2 There are several reasons why we should prefer this course in non-APA cases like this one in which the court has some remedial discretion. Vacating an order or rule and then considering a stay motion has several distinct advantages over just remanding. In the first place, it preserves the adversarial process.3 Remand-only decisions are almost always reached without input from the parties. The briefs scarcely ever deal with the remedial question. That is perfectly understandable. It may be impossible for petitioners, agencies, or intervenors to anticipate exactly how the court’s decision will come out. There may be challenges to many rules or many aspects of one rule. The court may uphold some and reject others. Different consequences can result from different combinations. Besides, agencies, in their presentations to the court, do not relish anticipating a loss. No litigant does. To require the parties to address the subject in each case would waste their time and the court’s in all cases in which the agency prevails.
The upshot is that remand-only decisions are being made without sufficient information, which is one of the main reasons the cases are so difficult to reconcile. In contrast, post-decision stay motions enable us to decide with our eyes open. The court will have the benefit of hearing from all sides. In deciding whether to allow unlawful agency action to remain in place during the remand (by way of a stay), the court will have the evidence needed to assess the consequences. And that decision can be made in accordance with this court’s long-standing principles governing stays — irreparable harm, probability of success, public interest, and so forth. See, e.g., Va. Petroleum Jobbers v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (per curiam); Wash. Metro. Area Transit Comm’n v. *428Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.Cir.1977); Wis. Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C.Cir.1985) (per curiam); Cuomo v. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C.Cir.1985) (per curiam).
The existence of a stay with time limits, rather than an open-ended remand without vacating, will give the agency an incentive to act in a reasonable time, given the other constraints on its resources. When we simply remand the agency has no such incentive. A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such. See Daugirdas, supra, at 302-04.
Notice too the distortion of the proper allocation of burdens among the parties. When the case is simply remanded, and the agency drags its feet, the winning party’s only recourse is to bring a mandamus petition and clear all the hurdles such actions entail. On the other hand, in proceedings on motions for stays the burden is where it should be — on the losing agency, which will have to convince the court that private parties should be required to comply with an illegal order or rule while the agency responds to the ruling against it. If an extension of time is needed, the burden will remain on the losing agency.
One final thought. A remand-only disposition may unfairly deprive parties of the opportunity to obtain Supreme Court review of our decision on the merits. If a district court merely remands a case to an agency, we hold that there is no final judgment to appeal. See In re St. Charles Preservation Investors, Ltd., 916 F.2d 727, 729 (D.C.Cir.1990) (per curiam) (observing well-settled rule that “a district court order remanding a case to an agency for significant further proceedings is not final”); see also Pueblo of Sandia v. Babbitt, 231 F.3d 878, 881 (D.C.Cir.2000) (holding that appellate court lacked jurisdiction to review district court order remanding to agency for further proceedings). It is entirely possible that the Supreme Court would take the same view of our remand-only dispositions and hold that there is no final order suitable for its review.
. See William S. Jordan, III, Ossification Revised: Does Arbitrary & Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U.L. Rev 393, 410 & n. 88 (2000) (finding that in twenty-eight of the sixty-one rulemaking cases studied our court "did not explicitly state whether or not it was vacating the rule at issue”).
. See, e.g., Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C.Cir.2006); Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 872 (D.C.Cir.2001) (stating that EPA and other parties “may file a motion to delay issuance of the mandate to request either that the current standards remain in place or that EPA be allowed reasonable time to develop interim standards”); U.S. Tel. Ass’n v. FCC, 188 F.3d 521, 531 (D.C.Cir.1999); Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 924 (D.C.Cir.1998); Envtl. Def. Fund, Inc. v. EPA, 672 F.2d 42, 57 (D.C.Cir.1982) (observing that “following the court's decision,” EPA and other parties “participated in extensive deliberations ... to seek [and obtain] a stay of the mandate and develop a program to achieve a revised regulatory scheme”); cf. Honeywell Int'l Inc. v. EPA, 374 F.3d 1363, 1375 (D.C.Cir.2004) (Randolph, J., concurring), withdrawn in part on other grounds, 393 F.3d 1315 (D.C.Cir.2005); Schurz Commc'ns, Inc. v. FCC, 982 F.2d 1043, 1057 (7th Cir.1992).
. The post-argument filings in this case do not, as the dissent supposes, fully address the remedial issues. After oral argument, EPA filed a motion seeking both partial remand of the Boilers Rule for revisions consistent with this court's intervening decision in Sierra Club v. EPA, 479 F.3d 875 (D.C.Cir.2007) (per curiam), and partial vacatur of certain compliance deadlines and emissions limits to allow for the agency’s intended revisions. That motion and the filings accompanying it addressed issues related to, but distinct from, the remedial issues presented by our unanimous holding that EPA unlawfully defined "commercial or industrial waste” in a way that will require substantial alterations to both challenged rules, see Op. at 1254, 1257-62. As one of the parties put it: "Considering a stay of this Court’s mandate (in whole or in part) and/or holding EPA to a remand deadline may be appropriate topics for the parties to discuss, and for this Court to evaluate. But ... an informed, non-hypothetical discussion can occur only after this Court issues its decision.” Resp. & Opp'n of Indus. Intervenors to Envtl. Pet'rs' Opp’n to EPA's Mot. for Voluntary Partial Vacatur and Cross-Mot. for Deadline to Govern Remand at 4 (emphasis in original).