concurring:
I concur in the conclusions that there is a plausible basis in the record for the Board’s factual findings and that those findings are not clearly erroneous. Therefore, I also concur in the judgment which affirms the BVA’s ruling that the forfeiture of the appellant’s benefits was proper. I must note, however, that this is a begrudging concurrence, one given reluctantly and only because I believe that I am bound to follow the precedential decision in Villaruz v. Brown, 7 Vet.App. 561 (1995), which established the route meticulously followed by the Chief Judge in his opinion today.
For my part, I have come to realize that we (I was a member of the Villaruz panel) neglected to consider, much less resolve, a determinative threshold issue in Villaruz. I now believe that § 6104(a) commits the decision in this matter to the unfettered discretion of the Secretary and that the Court should exercise restraint, decline to review the BVA decision, and dismiss this appeal.
I.
The principle of judicial review was established (perhaps “presumed” is the better word) by Chief Justice Marshall in 1803 in the landmark decision of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). However, “[throughout the 19th century, the [Supreme] Court resolved questions of re-viewability of agency actions by applying a presumption of unreviewability.” 3 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 17.5 (3d ed.1994). The Supreme Court did review some agency actions during the first part of the 20th century in limited circumstances, see, e.g., American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902), and in 1967, the Court adopted a presumption of reviewability. Ab*488bott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1607, 18 L.Ed.2d 681 (1967); see also 3 Davis & Pierce, supra, § 17.6. Since that time, the general rule has been that decisions by agencies of the Executive Branch are subject to judicial review.
As is the case with general rules, however, there are exceptions to this rule of reviewa-bility. Courts would not and could not undertake judicial review of agency action where such review was proscribed by statute or where the decision was committed to the sole discretion of the agency. One commentator has described the latter as embracing “actions that are exempt from review because of judicial self-restraint.” Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L.Rev. 689, 691 (1990). For an example of preclusion by statute, we need look no farther than the history of veterans benefits adjudications. Prior to the 1988 enactment of the Veterans Judicial Review Act (VJRA), Pub.L. No. 100-687, 102 Stat. 4105, decisions on veterans benefits were not subject to review outside the Veterans’ Administration. See 38 U.S.C. § 211(a) (1987) (“[T]he decisions of the Administrator [ (now the Secretary) ] on any question of law or fact under any law administered by [VA] providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”).
The committed-to-agency-discretion exception is “very narrow,” applicable in those rare instances where “ ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st. Sess. 26 (1945)). More recently, the Supreme Court has stated:
[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.
Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (emphasis added). The committed-to-agency-discretion exception also includes situations where
[ejomplete administrative authority and decisionmaking freedom is ... created by operation of law. For certain categories of administrative decisions, tradition or common law has evolved unreviewable discretion. Or constitutional theory might operate to deprive the judiciary of a role in certain types of administrative decisions.
2 Charles H. Koch, Jr., Administrative Law and Practice § 9.35[2] (Supp.1996). Two oft-cited examples of decisions committed-to-agency-discretion are (1) matters of national security and (2) the exercise of prose-cutorial discretion. See Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (national security); Heckler, 470 U.S. at 831, 105 S.Ct. at 1655 (“This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”).
The two exceptions to the rule of reviewa-bility, statutory preclusion, and committed-to-agency-discretion, which Professor Davis has referred to as part of the “common law” of judicial review of agency action, 5 Kenneth C. Davis, Administrative Law Treatise § 28:5 (2d ed.1984), were codified in the Administrative Procedures Act (APA). Section 701(a) of title 5, U.S.Code, provides that there shall be judicial review “except to the extent (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” Although the APA served as a model for at least some sections of the VJRA, compare 5 U.S.C. § 706(2)(A)~ (D) with 38 U.S.C. § 7261(a)(3)(A)-(D), Congress did not expressly state in the VJRA that there is no judicial review where there is a statutory prescription or a commitment to agency discretion. However, with regard to the former exception, such a definitive proscription would hardly have been necessary *489since the VJRA was enacted to eliminate just such a statutory ban. See 38 U.S.C. § 511; 134 Cong. Rec. 31,461 (1988) (statement of Sen. Cranston) (stating that the bill which became the VJRA “will afford veterans the opportunity for judicial review_”).
Regarding the committed-to-ageney-dis-cretion exception, 38 U.S.C. § 7261 does authorize and direct that the Court overturn decisions of the Board which are found to constitute an “abuse of discretion.” 38 U.S.C. § 7261(a)(3)(A) (emphasis added). However, the “abuse of discretion” standard cannot be contorted into global review authority, or stretched to allow the Court to review matters where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830, 105 S.Ct. at 1655. As the Supreme Court went on to hold in Heckler: “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” Ibid.; see also 2 Koch, supra, § 9.34 (in distinguishing 5 U.S.C. § 706, the APA provision which contains the different standards of review, from 5 U.S.C. § 701(a)(2), some “programs ... use the term discretion to mean a level of administrative authority and decisionmaking freedom that still leaves some role for the courts [while other] programs ... use the term for administrative authority and decisionmaking so complete as to foreclose any judicial role”). Moreover, as noted above, § 701(a)(2) merely codified the already existing “common law” of judicial review which remains.
II.
Turning now to the controlling statute in the matter before the Court, 38 U.S.C. § 6104(a), provides:
(a) Any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Secretary.- [Emphasis added.]
This statute was enacted during World War II as section 4 of the Act of July 13, 1943, 57 Stat. 554-55, which later became 38 U.S.C. § 728. The purpose of the statute is clear:
In short, no person, within the meaning of 38 U.S.C.A. § 728, guilty of the proscribed offenses was, as a matter of right, to continue [to be] eligible to receive benefits from the government of the nation whose welfare and security in time of war he sought to impair.
Wellman v. Whittier, 259 F.2d 163, 167 (D.C.Cir.1958). Similarly, the language itself is clear: “shown by evidence satisfactory to the Secretary.” Although it is not relevant here, the drafters used similar language in another sentence in § 4 of the 1943 Act, which, in slightly modified form, became subsection (b) of current § 6104: “the Secretary, in the Secretary’s discretion_” 38 U.S.C. § 6104(b).
It is worthy of note that the statute does not require an adjudication of guilt by court martial or other judicial entity before forfeiture of benefits; the decisional responsibility for determining whether a person is “guilty” is placed by the statute upon the shoulders of the Secretary without reference to any other tribunal. As the Tenth Circuit held not long ago, in construing similar language contained in 12 U.S.C. § 191 (“whenever the Comptroller shall become satisfied of the insolvency of a national banking association, he may emphasis added), judicial review was precluded because, inter alia, “[s]uch permissive language exudes strong deference to the Comptroller’s decision.” American Bank, N.A. v. Clarke, 933 F.2d 899, 903 (10th Cir.1991). Congress has not enacted either a definition of or standards for determining the Secretary’s satisfaction, and the Secretary has not done so by regulation, which, in either event, could facilitate judicial review. See Darrow v. Derwinski, 2 Vet.App. 303, 305-06 (1992); Smith v. Derwinski, 1 Vet.App. 267, 278-79 (1991); see also 38 C.F.R. §§ 3.900 (1995), et. seq. (containing definitions, delegations of authority, and procedural guidelines but no evi-dentiary thresholds or decisional standards).
III.
Decisions on claims for benefits are “subject to one review on appeal to the Secretary. *490Final decisions on such appeals shall be made by the Board [of Veteran’s Appeals].” 38 U.S.C. § 7104(a); see also 38 C.F.R. § 20.101(a) (1995). In its April 21, 1994, decision, the Board stated:
When viewing the evidence in its entirety, the Board considers the appellant’s activity and membership in the Bureau of Constabulary as constituting an extension of the Japanese war effort, as an activity giving aid and assistance to an enemy of the United States.
R. at 13. From this, the Board concluded that “[t]he appellant, beyond a reasonable doubt, was guilty of rendering assistance to an enemy of the United States.” R. at 7. As required by § 6104(a), the Board ruled that the appellant had forfeited his right to VA benefits. Unlike the statutes that deal with entitlement to benefits (see, e.g., 38 U.S.C. §§ 1110, 1121, 1131, 1141, 1151), 38 U.S.C. § 6104(a) contains its own peculiar evidentia-ry standard and, under these circumstances, there simply is, in the words of the Senate report quoted and relied on in Overton Park, “no law to apply” and, therefore, no basis for judicial review. To undertake review in such a situation, the Court would have to place itself in the shoes of the Secretary. In my view, that is not review but the impermissible judicial usurpation of a responsibility committed by statute to the Secretary.
There is a second, and perhaps more practical, consideration which also militates against judicial review of this decision under § 6104(a). The Board concluded here, in a phrase intended perhaps more as a description than a standard of review, “beyond a reasonable doubt” that the appellant was shown by evidence satisfactory to the Secretary to have been guilty of rendering assistance to an enemy of the United States. R. at 7. What standard of review are we to apply in reviewing such a determination? Stated another way, how is the Court supposed to measure the Secretary’s satisfaction? With a Ouija board? A mood ring?
Appellate court standards of review may properly be viewed along a spectrum of the deference to be accorded the decision and the decisionmaker below. The different standards of review which courts employ in reviewing different types of agency action “may be said to express different levels of tolerance for risk of error.” 2 Koch, swpra, § 9.2; see also Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985) (noting the difficulty in distinguishing a “question of law,” a “question of fact,” and a “mixed question of law and fact,” and stating: “[T]he fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”). At one end of the spectrum, an appellate tribunal generally reviews matters involving the proper interpretation of the Constitution and statutes on a de novo basis, affording the lower tribunal little or no deference. The assumption is that the higher court is just as, if not more, capable of rendering a detached and informed ruling on the correct interpretation to be accorded the constitutional or statutory words. At the other end of the spectrum lies the standard before us today, where the matter has been committed totally and completely by statute to the agency head: “shown by evidence satisfactory to the Secretary.” Absent an allegation that VA has acted under an erroneous interpretation of law or in a manner contrary to the Constitution, see infra, complete deference must be afforded the decisionmaker here where “the statute (‘law1) can be taken to have ‘committed’ the decisionmaking to the agency’s judgment absolutely.” Heckler, 470 U.S. at 830, 105 S.Ct. at 1655. In this instance, this Court has neither reason nor authority to place itself in the Secretary’s stead under this statute.
While this issue might appear at first blush to be of only abstract academic interest, the dissenting opinion of Judge Kramer brings it right down to the concrete level. Borrowing from the lyrics of the Rolling Stones of a generation ago, Judge Kramer “can’t get no satisfaction” from what he describes as a “preliminary finding” of the Board. However, 38 U.S.C. § 6104(a) renders his relative satisfaction with the evidence of record perhaps of interest but inconsequential as a matter of law.
*491Judge Kramer concludes that the finding of the Board that the appellant had rendered assistance to an enemy of the United States was clearly erroneous and would vacate the BVA decision and remand for “further development.” In effect, he would substitute his evidentiary satisfaction, or lack thereof, for that of the Secretary and, in so doing, undertake a review of the Board’s factual findings just as we review such findings in virtually all other BVA decisions, i.e., under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4). Due to § 6104(a), however, this appeal is not like the BVA decisions which we review for clear error because the statutory standard is “shown by evidence satisfactory to the Secretary”; it is not “shown by evidence satisfactory to the Court.”
All of the above is not to say that a decision under § 6104(a) would never be subject to judicial review. Indeed, as the D.C. Circuit noted almost forty years ago in construing the predecessor to today’s statute,
while 38 U.S.C.A. § 728 authorizes a determination by the Administrator upon “evidence satisfactory to” him, his ruling as we shall develop, is not simply discretionary with him. If it depends upon an erroneous interpretation of law, it may be subject to review by the courts.
Wellman, 259 F.2d at 167; cf. 38 U.S.C. § 7261(a)(3)(A)-(B) (“hold unlawful and set aside decisions ... by the Secretary ... found to be — ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law; ... contrary to constitutional right, power, privilege or immunity ”) (emphasis added). Thus, if the Secretary were to err in defining a term of the statute, e.g., as in Wellman (the statutory term “treason”), then review, and reversal, could be had. Similarly, if the Secretary were to decide that benefits were forfeited because the appellant belonged to a particular race, or gender, or nationality, then review, and reversal could be had because such a decision would be “arbitrary, capricious, ... contrary to constitutional right.” 38 U.S.C. § 7261(a)(3); see Webster, 486 U.S. at 603, 108 S.Ct. at 2053 (“We do not think [the statute which confers discretion upon the Director of the Central Intelligence Agency] may be read to exclude review of constitutional claims.”). However, such variations on this theme are neither presented nor discernible from the record here.
Finally, nothing said above would relieve the Secretary of his obligation under 38 U.S.C. § 7104(d)(1) to include “a written statement of ... the reasons or bases for [the Board’s] findings and conclusions, on all material issues of fact and law presented on the record.” For this reason, the Court could, at least in theory, entertain a request for judicial review of the statement of reasons or bases which accompanied a BVA decision under 38 U.S.C. § 6104(a). In fact, the dissent engages in just such an exercise. Apparently based upon the implicit assumption that service in the Bureau of Constabulary (BC) is an inadequate predicate for forfeiture on this record, the dissent would remand for “an adequate statement of reasons or bases” as to why “any service in the BC, regardless of circumstances, constitutes rendering assistance to an enemy within the meaning of 38 U.S.C. § 6104(a).” Op. infra at 494. I do not happen to find the Board’s statement of reasons or bases to be insufficient under 38 U.S.C. § 7104(d) but even if one were to accept that view, judicial review in circumstances such as these would be a triumph of form over substance. If the Court were to find error due to an inadequate statement, the remedy of remand would of necessity be limited to the statement, not the substantive decision. No matter how many times a BVA decision under 38 U.S.C. § 6104(a) returned to this Court, the bottom line would remain the same: the Secretary’s decision under § 6104(a), based upon evidence he finds satisfactory to him and without any other statutory or regulatory standards, could not be the subject of meaningful judicial review since there is “no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830, 105 S.Ct. at 1655. Therefore, in the context of a decision under 38 U.S.C. § 6104(a), an inadequate statement of reasons or bases would be, at most, an error which would be harmless and not prejudicial to the appellant. See 38 U.S.C. § 7261(b).
*492In Ms opinion for the Court, the CMef Judge suggests that the words “shown by evidence satisfactory to the Secretary” in 38 U.S.C. § 6104(a) are of no consequence because they were enacted when there was no judicial review. Further, he suggests that, in any event, the words somehow have been overtaken by the spirit of a subsequent enactment, the VJRA. It is indeed true that § 6104(a) was enacted prior to the advent of judicial review during a time when the Secretary served as jury, judge, and court of last resort with respect to claims for veterans’ benefits. It is equally true that the era of judicial review was instituted with the passage of the VJRA in 1988. However, for whatever reason or lack thereof, Congress did not change § 6104(a). Without so much as a nod toward judicial restraint, the CMef Judge would undertake to rectify that perceived omission wishing the words away. In my view, such judicial activism would do violence to the “cardinal principle of statutory construction that repeals by implication are not favored.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976); see also Matsushita Electric Industrial Co. v. Epstein, — U.S. -, -, 116 S.Ct. 873, 881, 134 L.Ed.2d 6 (1996) (“The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue.” [Citations and internal quotes omitted] ). The VJRA and § 6104(a) do not present such an “irreconcilable conflict,” and while I see no reason why the Court would not be able to review decisions under § 6104(a) just as it reviews other adjudicative decisions, I do not believe that it would be witMn the province of the Court to elect to ignore operative words in a statute no matter how noble the motives. The responsibility for any corrective action deemed necessary rests with Congress.
IV.
Here, we are being asked to review a decision reached by the Secretary, through Ms delegee, the Board of Veterans’ Appeals. There is no claim that the decision was based on a misinterpretation of law or that it deprived the appellant of a constitutional right, and the record would not support such claims. Therefore, because tMs matter has been committed by statute to the Secretary based upon evidence “satisfactory to the Secretary” and there are no standards wMch would facilitate review or any law to apply, I believe that the Court should decline to review the April 21, 1994, BVA decision and dismiss the appeal.
Although tMs is an Article I court, it does exercise Article III judicial power. See Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). In exercising self-restraint by not purporting to review the decision here, the Court would be acting well witMn its mandate and consistent with tradition:
The judicial power of the Umted States conferred by Article III of the Constitution is upheld just as surely by withholding judicial relief where Congress has permissibly foreclosed it, as it is by granting such relief where authorized by the Constitution or by statute.
Dalton v. Specter, 511 U.S. 462, 464-65, 114 S.Ct. 1719, 1721, 128 L.Ed.2d 497, 512 (1994).