concurring.
Although we agree that this remand is required by United States v. Saade (“Saade I”), 652 F.2d 1126 (1st Cir.1981), we question the soundness of that decision. If a fisherman or other affected party thought that the zone were unlawful because of its impact on commercial fishing, a proper means of challenging the regulation would be an action for declaratory and injunctive relief in the district court. Such an action would lie under established precedent, see Shields v. Utah Idaho Cent. R.R., 305 U.S. 177, 183-85, 59 S.Ct. 160, 83 L.Ed. Ill (1938); Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108-111, 23 S.Ct. 33, 47 L.Ed. 90 (1902); R.I. Dep’t of Env’t Mgmt. v. United States, 304 F.3d 31, 40-45 (1st Cir.2002); 5 U.S.C. § 702 (2000), as the enabling statute provides no means for judicial review of orders authorizing such zones. 33 U.S.C. §§ 1, 3 (2000).
Given the opportunity for a direct challenge to such a zone, it seems to us open to question whether either a fisherman or a protester should be allowed to sail deliberately into a known restricted military zone and then challenge the regulation by way of defense in a criminal case. It is hard to believe that Congress, if it had provided expressly for judicial review of zones created under 33 U.S.C. §§ 1 and 3, would have made the remedy optional and contemplated that the regulation could also be challenged by defiance — a course that could present dangers both for the challenger and for military operations.
The Administrative Procedure Act makes clear that the ability to test a regulation during enforcement proceedings does not exist where the law provides an alternative remedy that is adequate and exclusive. See 5 U.S.C. § 703 (2000). This certainly encompasses situations where Congress creates the direct remedy and provides (either explicitly or otherwise) that it is exclusive. See Yakus v. United States, 321 U.S. 414, 443-47, 64 S.Ct. 660, 88 L.Ed. 834 (1944); see also Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-53, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). But where the direct means of challenging the regulation derives from court precedent (or its codification in the generally phrased APA), arguably the courts may determine whether the direct remedy is or is not exclusive and, also arguably, the direct remedy should be exclusive here.
The government has not raised this objection, but has relied instead on an attempt to distinguish Saade I that the panel opinion properly rejects. Only the en banc court can revisit Saade with respect to any holding of that decision. See Ed Peters Jewelry Co. v. C & J Jewelry Co., 215 F.3d 182, 190-91 (1st Cir.2000). Because of public interest concerns, we would not necessarily regard the government’s failure to raise the above objection as precluding the exclusivity argument if the *68government chose to raise it by petition for rehearing en banc, although we are not committed to accept the argument unless and until the matter is adequately briefed.
We think it proper to raise this possibility not only because of our uncertainty as to the correctness of Saade I but also because the government otherwise has no incentive to contest a seemingly settled holding. This is at least the third case in which a defendant seeks to defend against prosecution by raising the same challenge to the same zone — a fact that underscores doubts about the Saade I regime.