concurring:
I have voted against rehearing en bane and, as a member of the panel I also reject the defendant’s motion for rehearing addressed to the three judges. Accordingly, I accept and concur in the court’s order but I wish to make it explicit that I agree with Judge Nichols that (a) the opinion in the present case does not prescribe any fixed or “correct” formula for renegotiation in this court, to the exclusion of other appropriate methods of reaching a just result, such as that used in Butkin Precision Mfg. Corp. v. United States, post at 110, 544 F 2d 499; (b) however, in many cases, if not most, the histories of comparable companies (particularly *51the profit histories) furnish relevant and significant information helpful in the renegotiation of a plaintiff company; and (c) the defendant has not made, but should make, a solid effort to put before the court, as part of the Government’s case, at least as much of the comparative data which was before and used by the Renegotiation Board, in determining the excessive profits of the particular plaintiff, as can be presented without unduly impinging on the rights of third parties.1
I add that I am not yet convinced that it will be too burdensome for the Government (i) to bring forward the relevant information which it can properly obtain from the Board for use in this court, and if necessary (ii) to put in as part of its case, either through expert testimony or documentary materials, other pertinent information bearing on comparative profits which will tend to support defendant’s position in the specific litigation. But if it should turn out, after a fair trial-period, that defendant cannot reasonably be expected to produce either of these types of evidence, then the court will face, as I forecast it, the problem of whether to loosen the requirements on the defendant or to decide that under the Renegotiation Act as it now exists2 a fair determination of excessive profits simply cannot be made by this Article III court in the absence of those categories of information.
Tlie contours and limits are sketched in the opinions in Instrument Systems Corp. v. United States, 212 Ct. Cl. 99, 549 F. 2d 357, and Marinette Marine Corp. v. United States, 212 Ct. Cl. 114, 546 P. 2d 365, decided Dec. 15, 1976.
I refer especially to the requirement of a de novo court trial and to the statutory permission to the Government to seek a higher determination of excessive profits than that made by the Board.