concurring:
I concur in the opinion and judgment but would like to add the following observations.
We have in the above case and in Bannercraft Clothing Co., Inc., post at 199, two more of what bids fair to be an endless series of impecunious defense contractors seeking relief from excessive profits determinations. We naturally think of one /who has allegedly realized excessive profits as being richer than we would deem proper. Why is he so often at the other end of the economic scale? If we can explain this apparent paradox, a more satisfactory disposition of the cases may be possible.
*196At times tlie condition results from an uneven distribution of profit and loss contracts over different fiscal years, with insufficient impact of carry forward and other equalization measures. See my article, Equalizing Profit and Loss In Renegotiation, 45 Va. Law Rev. 41 (1959). Other times, those in control of corporations or partnerships have taken advantage of the usual long lapse of time between the end of a fiscal year and a Board order dealing with that year, to drain off the profits to transferees. Despite mistaken assertions to the contrary, dissenting in Sandnes’ Sons, Co. v. United States, 199 Ct. Cl. 107, 120, 462 F. 2d 1388, 1395 (1972), it is also perfectly possible for a person who never does business with the United States, never has a contract or purchase order containing a renegotiation clause or notice, and never heard of the Renegotiation Act to become subject to renegotiation. Such person may pay off profits to stockholders or creditors without setting up a proper reserve for this liability, and learn of it only later. Thus we are dealing with some people who have got into this predicament without any fault or negligence of their own, and with others whose good faith we may well decry. But even this latter group may ask where is the provision in the Renegotiation Act to bar their distributing assets to transferees while a renegotiation is pending? None can be found.
I hasten to add, I have no idea in which category the parties now before us belong.
The collection provisions of the Renegotiation Act of 1951, 50 U.S.C. App. § 1215(b) (1) and ff. were originally drafted for the 1943 Act, in the midst of World War II. At that time no one could do business in many industrial lines of endeavor, unless he did renegotiable business. It appeared reasonable to look to the withholding of payments on future defense contracts or subcontracts as the primary means of enforcing liability to refund excessive profits on prior contracts or subcontracts, pursuant to agreement or order. In any event, the impact of wartime excess profits taxes made it necessary to collect only about 20% of refund determinations made. As a backup method of collection only, suit was provided for in § 1215 (b) (3). There was and is no provision for jeopardy assessment or transferee liability. To the con*197trary, assignee banks and Miller Act sureties are protected and are not required to assist in refund collection in any way. § 1215(b) (4) and (5).
I well remember responsible officials of the then renegotiating agencies predicting that if renegotiation continued in effect after V-J day, collection would become an insuperable problem. Yet it has never been squarely confronted and appropriate collection measures have never been devised for the new situation.
The instant case involves FY’s 1967, 68 and 69, and Bannercraft 1966 and 67. Thus we have renegotiation proceedings dragging along year after year, with nothing done to exact security for payment, and nothing that can be done. Maybe, many times, the horse has long since been stolen when the barn door is locked, i.e., when the order enters and the petition is filed here. If they want to stay collection, they then must file their bonds. Bonds are hard for the impecunious to come by in these times, if they were ever easy, except for those so prosperous as to need no bonding.
If they don’t file the required bonds within ten days, we must enter judgment on the Government’s counterclaim. Such, we held in Sandnes’ and again today, is the intent of Congress. In Sandnes’ we deferred the judgment pending inquiry whether the plaintiff’s right to due process was unconstitutionally chilled, but even this mild temporizing was vehemently protested by three dissenters. In any case, that plaintiff never made the required showing and ultimately the judgment was entered as demanded.
In my view, 99% of the time the judgment on the counterclaim will either be needlessly harsh on one who has got into difficulty by no fault of his own, or else will be too late to prevent diversion of funds the Government had a right to expect — at least, a moral right — would be held as a reserve to satisfy the renegotiation liability when determined. The procedure in my view, has no relation to a rational program to secure the Government against diversion of excessive profits into unreachable pockets.
Some times it may be appropriate to strain the interpretation of a statute to make it conform to reality. I do not think this is such a case. Any effort of ours along such a line would, *198I think, only make matters worse. In case of doubt, it is not a bad idea to find out what the intent of Congress is, and to do just that.
I don’t think it is improper for us, however, to note the existence of a problem Congress has perhaps not solved, and to recommend a study of it by an executive or legislative agency having the authority and facilities to do so, with a view to possible new legislation. In such an investigation our case files would be prime sources of relevant data.