(concurring in the result).
Although I agree that the orders granting permanent injunctions in favor of the plaintiffs should be reversed and, on a more limited basis, that summary judgment should be granted in favor of the states, I cannot follow the path the majority takes.
My most important objection is to the basic assumption that the preemption clause, § 1392(d), of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 et seq., should be narrowly construed. Such an approach seems to me to fly in the face both of the language of the Act and of the legislative history. The very existence of an express preemption clause is somewhat unusual. Moreover, this one was worded in the strongest possible terms. The prohibition is not simply against a state standard in conflict with the federal standard; Congress prohibited any state standard “applicable to the same aspect of performance which is not identical to the federal standard.” To this mandate for the uniform application of Federal standards Congress made one narrow exception, and only one. Any government agency might require a higher standard of performance on vehicles purchased for its own use, something which it could have achieved by procurement policy even if the exception had not been stated.
The legislative history emphasizes that Congress meant just what it said. The extract from the Senate Committee Report quoted first in Part III of Chief Judge Lumbard’s opinion is only part of the story.1 The same report had earlier stated (p. 4):
While the contribution of the several states to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry *513must fall squarely upon the Federal Government.2
The House Report also emphasized the need for a generous construction of preemption, H.R.Rep.No.1776, 89th Cong., 2d Sess. 17 (1966):
Basically this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards.
It is no answer that the overall objective of the Safety Act was “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.” Congress meant not simply to do this but to do it in a particular way, namely, by promoting national standards that would preempt any differing state ones, whether lower or higher, in order to assure manufacturers that if they met federal requirements, they could market their cars throughout the Union. Congress knew how much the topography of Vermont differs from that of Kansas as well as we do. It decided that nevertheless the gain from giving automobile manufacturers the incentives inherent in ability to rely upon a uniform nationwide standard and in freedom from idiosyncracies of state regulators outweighed any possible losses. This is legislation in the great spirit of the Commerce Clause.
The majority’s conclusions concerning the dire effect of reading the statute to mean what it says appear to rest on some serious misconceptions. As the scope of preemption is circumscribed, the states’ responsibility for safety correspondingly increases. While the opinion considers this to be all to the good, I have no sufficient basis for thinking it to be; in any event, and much more importantly, Congress evidently thought the contrary.3 The opinion’s assumption that many states require pre-sale approval of any new item of equipment seems in conflict with the statement of the Senate Committee just quoted in the footnote. Furthermore, a proper interpretation of the preemption clause does not prohibit the enforcement of requirements of pre-sale approval like New York’s and Vermont’s, as the majority assumes. It means only that states having a requirement for pre-sale approval must apply this in conformity with the Federal standard.4 The regulatory gap feared by the majority would thus exist only if § 1392(d) were to be read so *514as to prohibit the states from acting when there was no Federal standard governing a particular “aspect of performance.” But § 1392(d) does not say this, and no one could seriously contend for it.
My regret over the approach thus taken is all the greater because it seems unnecessary dictum. I completely accept the three-fold test stated by Chief Judge Lumbard in Part II immediately after the quotation of § 1392(d). I also join my brothers’ holding, in disagreement with the First Circuit’s in Chrysler Corporation v. Rhodes, 416 F.2d 319, 323 (1969), “that ‘Super Lite’ is covered by * * * Standard No. 108 * * * ” However, I part company when the majority holds that the direction of § 3.1.2 that, “No additional lamp, reflective device, and associated equipment shall be installed if it impairs the effectiveness of the required equipment,” refers only to cases where the added equipment “physically obstructs the lights emitted by the required lamps or * * * causes some type of electrical interference with the required lights.” To read “effectiveness” as limited to the vision of the driver of the car carrying the lights without regard to the vision of the driver, of an oncoming car that may crash into it is a strange construction of language.
The unreasonableness becomes all the more apparent when we realize that Super Lite is designed to be used only with low beam headlights and cannot be used independently or with high beams. Section 3.1.1(b) of Standard 108 makes low beam headlights required equipment and S.A.E. Standard J579a, incorporated by reference in Standard 108, sets down the specifications these lights must meet. The whole purpose of low beams is to avoid glare that would blind drivers of oncoming vehicles while, at the same time, giving sufficient illumination to the driver of the vehicle itself. If the only function of low beams were illumination, they would be unnecessary, since high beam headlights would suffice. All this is recognized in S.A.E. J579a, where the “lower beam” of a sealed beam unit is defined as
A beam low enough on the left to avoid glare in the eyes of oncoming drivers and intended for use in congested areas and on highways when meeting other vehicles within a distance of 500 ft.
If a supplementary light, such as Super Lite, is used in conjunction with low beams and creates the kind of glare low beams were intended to avoid, the low beams are no longer “effective” and, in terms of § 3.1.2, the supplementary light “impairs the effectiveness of the required [low beam headlights].” As Dr. Had-don put it in his deposition in the Rhodes ease, the supplementary light “would tend to defeat the purposes of the performance required by the standard.”5 I thus find it impossible to avoid concluding that prevention of glare is an “aspect of performance” with which the Federal standard deals.
While this would mean that New York and Vermont could not adopt any different standard with respect to glare, it does not follow that they are precluded from objecting to Super Lite on the basis of a tendency to produce this. As previously indicated, the states remained free to enforce their laws requiring pre-sale approval with respect to supplementary lights producing glare so long as they applied the Federal standard, to wit, impairing the effectiveness of the required lights. Plaintiffs did not negate *515the possibility that Super Lite might be found to do this. The term “glare” should be defined with reference to the Photometric Test Point values in S.A.E. J579a for low beams. These values are measured by locating the candlepower output of the light at specified points on a rectangular plane divided into equal quadrants. The points on the plane represent the angle in degrees of the beam emitted from the light source. Glare to oncoming drivers results from an excess of luminous intensity projected in the upper or lower left hand quadrant. For example, under S.A.E. J579a the maximum permissible candlepower for a low beam 1 degree left and % degree down in the lower left hand quadrant is 2000. If low beams were operating at that maximum, the addition of Super Lite would very likely push the total candlepower over the maximum permissible limit. The evidence submitted in these cases does not show that the state authorities lacked a substantial basis for such a conclusion.6
On the other hand, I believe this court’s judgment in favor of the states is proper on the basis of their objection that Super Lite emitted a blue glow, whereas New York and Vermont reserve blue lights for emergency vehicles. The states’ objection to this aspect of Super Lite’s performance does not encompass any of the purposes sought to be achieved by the required lighting. Moreover, in order to determine whether Super Lite impairs the effectiveness of the required lighting there must be some measure against which the states’ objection to Super Lite can be tested. Since Standard 108 supplies none with respect to color, § 3.1.2 does not preempt the states on this point. For similar reasons New York may also be entitled to summary judgment on the basis of its objection, not mentioned by the majority, that “Although illumination on the right hand side of the road was good, there was a tendency for the operator of the vehicle to oversteer or understéer on left turns, because the illumination on the right hand side of the vehicle was so brilliant that illumination to the left side became inadequate.”
What these cases show above all is the need for the National Highway Safety Bureau to move swiftly to implement Congress’ manifest intention and eliminate the scholastic distinctions and waste of effort which litigations such as these necessarily entail. One can only hope the majority’s indication that the preemption clause is to be narrowly construed will not tempt the Bureau to rely on the false assumption that the duties Congress entrusted to it can be largely left with the states.
. I fail to perceive bow this is weakened by the passage subsequently quoted by the majority, affirming the role of the states in applying identical standards and enforcing them throughout the life of the car.
. See also the statement by Senator Mag-nuson, Chairman of the Senate Committee :
* * * the bill suggests to States that if we set a minimum standard, a car complying with such standard should be admitted to all States.
112 Cong.Rec. 13585 (1966).
. Yet, with the exception of a handful of State regulations and the Federal seat belt and brake fluid laws, the automobile sold generally in interstate commerce is today subject only to the standards produced by the committees of the Society of Automotive Engineers. These SAE standards are the product of a committee consensus, subject to a single manufacturer’s veto, while affording no consumer or user representation. Compliance is voluntary. There exist no procedures to compel their adoption, monitor their use, or evaluate their effectiveness.
S.Rep. No. 1301, 89th Cong., 2d Sess. (1966), 1966 U.S.Code Cong. & Admin. News, p. 2711.
. The position was correctly stated by Dr. Haddon, Director of the National Highway Safety Bureau, in a letter to Illinois authorities quoted in the Appendix in Tofany:
It should further be noted that the [preemption] section deals only with what State standards may be in effect, and not the permissible extent of methods of their enforcement. Had Congress intended to make Federal enforcement of pre-sale standards exclusive, it could have simply barred State standards altogether, rather than requiring that they be “identical” where they deal with the “same aspect of performance.”
It is our position, therefore, that where State standards are validly in effect, Federal law does not exclude or restrict their enforcement either in regard to new (pre-sale) or used vehicles.
. Dr. Haddon also stated
I’d also like to point out that we were perhaps leaning further than the evidence justified, the evidence available to us, at the time that we took that position in correspondence with the Chrysler Corporation, in that it may well be that such a lamp as the one at issue here does interfere with function, with the performance of the other lamps required. Now I’m not stating this as a conclusion but merely as a possibility which might come out of additional exploration. I’d be happy to elaborate further on that, if you would like.
No one liked.
. Dr. Haddon’s letter of September 17, 1968 stating that no impairment of effectiveness was found “[o]n the basis of our review of your technical literature on the Super Lite and our observation of limited field demonstrations of the light” would not prevent a contrary state determination based on more complete analysis. The record does not disclose what tests the Federal agency performed.