concurring in part and dissenting in part:
In addition to what I have agreed with in Judge Skelton’s dissent (joined by Judge Kunzig), I believe that I should add the following additional reasons why I dissent from the majority opinion.
Section 356 reads as follows:
§ 356. Functions of Commission
The Commission shall conduct, in each of the respective fiscal years referred to in section 352(2) and (3) of this title, a review of the rates of pay of—
(A) Senators, Members of the House of Representatives, and the Resident Commissioner from Puerto Rico;
(B) offices and positions in the legislative branch referred to in sections 136a and 136a-l of this title, sections 42a and 51a of Title 31, sections 162a and 162b of Title 40, and section 39a of Title 44;
*303(C) justices, judges, and other personnel in the judicial branch referred to in sections 402(d) and 403 of the Federal Judicial Salary Act of 1964;
(D) offices and positions under the Executive Schedule in subchapter II of chapter 53 of Title 5; and
(E) the Governors of the Board of Governors of the United States Postal Service appointed under section 202 of Title 39.
Such review by the Commission shall be made for the purpose of determining and providing—
(i) the appropriate pay levels and relationships between and among the respective offices and positions covered by such review, and
(ii) the appropriate pay relationships between such offices and positions and the offices and positions subject to the provisions of chapter 51 and subchapter III of chapter 53 of Title 5, relating to classification and General Schedule pay rates.
Section 358 requires the President to recommend salaries "within the purview of subparagraphs (A), (B), (C) and (D) of section 356 * * Section 359(1)(B) allows a disapproval of "all or part” of the A, B, C and D salaries recommended by the President. I have tabulated the following possible partial disapprovals only with relation to raises for C (judicial salaries):
Senate Disapproval (by affirmative vote)
(1) Disapprove raise A (partial)
(2) Disapprove raise B (partial)
(3) Disapprove raise D (partial)
(4) Disapprove raise AB (partial)
(5) Disapprove raise AD (partial)
(6) Disapprove raise BD (partial)
(7) Disapprove raise ABD (partial)
Although there are seven possible partial disapproval combinations under the above tabulation for instances where C’s raises are approved, the total number of possible partial disapproval combinations is 14. This must be multiplied by 2 if I apply the same analysis to possible combinations of House disapprovals. So there are 28 *304possible combinations of partial disapprovals. On the other hand, there are only 2 possible total disapprovals.
Clearly, a single-house partial disapproval in any combination under the above tabulation is a change of the law. For example, in the above tabulation, in seven instances judicial salaries are raised singly or with A, B or D. So there are 28 possible changes of law without bicameral action and without approval of the President. The majority in its opinion emphasizes "no change in law” and it may be said that "no change in law” is the only basis of the majority’s opinion. In each of the 28 instances above mentioned, there is definitely a change in the law. So with the single-house veto unconstitutional in 28 out of 30 possible applications under the 1967 Act, it is difficult to comprehend why the single-house veto should be valid in 2 out of the 30 applications the majority claims it is constitutional. I submit that since the provision is unconstitutional in 28 out of 30 instances (93 percent), the entire provision is unconstitutional in toto in that it has been held that where a portion of a statute is unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid on the basis of fortuitous circumstances only in a fraction of the cases it was originally designed to cover, the statute cannot be permitted to stand. Butts v. Merchants & Miners Transportation Co., 230 U.S. 126 (1913); Dorchy v. Kansas, 264 U.S. 286 (1924).
Furthermore, as a practical matter, under subpara-graphs (i) and (ii) of section 356 above recited (hereafter called the relationship clauses), each part recommended bears a relationship to the other as well as the salaries under the mentioned general classification system. Since the single-house veto clause is obviously unconstitutional when there is a partial veto, no single house will use the single-house veto clause for a partial veto but will disapprove the proposals A, B, C and D in their entirety even if it agrees that certain raises are proper and deserving. For example, even if raises for C, B and D are proper and deserving, because a single house wishes not to raise the salaries of its own members a single house will be compelled to veto the raise for A (congressional) and *305include therewith C, B and D when it does not truly intend to object to raises intended for C, B and D. Thereby C (judiciary), B and D will not receive their respective raises. The validity of a statute, whatever its language, must be determined by its effect or operation. Ludwig v. Western Union Telegraph Co., 216 U. S. 146, 162 (1910); Henderson v. Mayor, 92 U. S. 259, 268 (1875); Wisconsin v. J. C. Penney Co., 311 U. S. 435, 443 (1940); Mountain Timber Co. v. Washington, 243 U. S. 219, 237 (1917). The practical effect of the unconstitutionality in the case of the 28 instances above mentioned is to defeat the purpose of the relationship clauses and to create a situation where deserving persons such as the plaintiffs in the present case will not be given raises which they deserve because a partial veto cannot be made even though the statute as Congress intended allows it. Because of the obvious unconstitutionality in the 28 out of 30 instances and its adverse practical effect and operation as above illustrated, it is my opinion that the single-house veto clause is unconstitutional in toto.
. The majority attempts to differentiate this case by defending its position and the single-house veto clause, citing a single case Muskrat v. United States, 219 U. S. 346 (1911). I cannot see the relevancy of that case herein because the Court held that the plaintiffs in that case did not have the requisite of "case and controversy.” Plaintiffs in that case brought suit in this court under a special statute conferring jurisdiction on this court regarding the right of certain Cherokee citizens as representatives of the tribe to institute suit in the Court of Claims to determine the validity of Acts of Congress with relation to alienation and other restrictions on lands and funds of the Cherokees. The Court deemed the suit to be equivalent to a bare declaratory judgment suit in that the suit did not assert a property right as against the Government or demand compensation for alleged wrongs because of action upon its part. Muskrat is clearly inapposite. The present case involves claims for back pay in dollars and cents. It is not a declaratory judgment suit.
The question of standing to raise constitutional questions was reviewed in United States v. Raines, 362 U. S. 17 *306(1960). The Court said that recognized exceptions to the general rule were:
(1) Where "* * * rules’ rationale may disappear where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U. S. 126. * * *” [At p. 23.]
(2) Where "* * * this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. * * *” [At p. 23.]
(3) Where "* * * as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he has no effective way to preserve them himself, the Court may consider those rights as before it. N.A.A.C.P. v. Alabama, 357 U. S. 449, 459-460; 460; Barrows v. Jackson, supra. * * *” [At p. 22.]
The Court recognizes Butts as an exception. It also recognizes the rule in Ludwig v. Western Union Telegraph Co., supra. The rule in Barrows v. Jackson, 346 U. S. 249 (1953), is also confirmed.
The majority opinion, however, summarily dismisses these recognized exceptions, citing a 1911 case, Muskrat. As I have stated, Muskrat is inapposite.
As the Court stated in Barrows v. Jackson, supra at 257:
* * * Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. * * * [Emphasis supplied.]
There are questions of fundamental rights involved in this case. The rights of plaintiffs and the multitude of Government employees not parties to this case under the basic constitutional provisions involved in the present case present a question equal to Barrows and N.A.A.C.P. in fundamental rights and national importance.
*307The holding that the rule of standing is only a rule of practice as the Court held in Barrows makes the majority’s imposition of the standing rule untenable in this case. By admitting the unconstitutionality of the single-house veto, defendant has completely waived any objection it may have had on the basis of standing. Defendant may waive rights in this court as private parties may. In view of defendant’s waiver of a "rule of practice” only, the majority cannot still insist on a nonwaiver. This court cannot prevent parties from taking positions under a "rule of practice.” Plaintiffs are entitled to every waiver defendant makes and the court may not arbitrarily deprive plaintiffs of the benefits of such waiver.
I submit the above reasons as additional reasons in support of plaintiffs’ position as well as defendant’s position that the single-house veto is unconstitutional. Defendant took its position knowing that the Court in Raines, as above listed, approved the rule in Butts. Defendant cannot complain. But the majority without even discussing Raines or Butts in effect repudiates both cases and disagrees with the defendant’s concession.
The two cases, Young v. United States, 315 U. S. 257 (1942), and Sibron v. New York, 392 U. S. 40 (1968), the majority cites to evade the admission of unconstitutionality, which the Assistant Attorney General has made in this case, are cases where criminal convictions were involved. The Court stated:
*308Therefore, there is a good and valid reason why these stipulations are not binding in criminal cases but such reasons are not applicable to civil cases especially where each claim involves only about $10,500 plus interest, more or less.
*307We deal next with the confession of error by the District Attorney for Kings County in No. 63. Confessions of error are, of course, entitled to and given great weight, but they do not "relieve this Court of the performance of the judicial function.” Young v. United States, 315 U. S. 257, 258 (1942). It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained. For one thing, as we noted in Young, "our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” 315 U. S., at 259. See also Marino v. Ragen, 332 U. S. 561 (1947). * * * [392 U. S. at 58.]
*308The instances which plaintiffs cite in a footnote to their brief in which the Government has changed its views regarding the one-house veto are of no relevance in this case because the admission in this case was made as a matter of record. It was made in open argument before an en banc hearing of this court.
There are instances after instances in this court where the Government has agreed that certain cases are applicable or are not applicable to its position. Defendant’s open admission in this case must be interpreted to mean that Raines and Butts are controlling in this case. There is no other conclusion I can reach.
Therefore, under Raines and the three exceptions thereunder, plaintiffs have standing to raise the unconstitutionality of not only the two cases of veto of the entire recommended list but also the 28 instances of partial veto. The loaf (§ 359(1)(B)) in this case is made up of 28 bad slices and of 2 slices which the majority claims are good slices. But the two are so related to the 28 under the relationship clauses (Butts, Barrows and Ludwig) that I am of the opinion that the whole loaf of 30 slices is bad.