(dissenting) :
Although I agree that the industry committee’s findings are not as informative as they might be, I nevertheless think first, that the committee’s reasons are adequately discernible, and second, that we should not require of this committee the same clarity and quality of findings that we require of other types of government agencies. Therefore I cannot join in the majority’s opinion and order of remand.
I
A. As the basis for its December 1969 recommendations of minimum wages for 1970, the industry committee pointed to the generally declining condition of the agriculture industry in Puerto Rico, together with the fact that the wages actually paid to farm workers were not much above the minimum wages made effective February 1, 1969, on the report of the previous industry committee. The only exception was in the cattle-dairy industry, where the minimum wage had been set at 55^ per hour and the prevailing wage was 790 per hour.
The significance of this condition is manifest, in view of the statutory direction to avoid wage increases that will substantially curtail employment in the industry.
The condition was explored by the committee in reasonable detail. Its findings, partly quoted, partly paraphrased, and given a numbering sequence, included the following:
1. “Between fiscal year 1950 and 1968, the annual average number of workers employed in the entire labor *1171force rose from 596 thousand to 701 thousand, while the number of workers in agriculture dropped from 214 thousand to 91 thousand.”
(Note: The sharp decline in agricultural workers, to only three-eighths of the number in 1950, underscores the concern to avoid further decrease in employment.)
2. “Traditionally, sugarcane, coffee, and tobacco formed the mainstay of Puerto Rico’s agriculture.”
These three crops declined from 35% of farm value of agriculture commodities in crop year 1967/8, to only 28% in 1968/9, — “largely due to the decline in the production and shipment of raw sugar.”
Coffee production declined from 325,-000 hundredweights (1967/8) to 260,000 hundredweights (1968/9).
Tobacco grown in Puerto Rico is used exclusively as cigar filler. In recent years, the amount of land in tobacco has dropped off sharply. In 1967-68 production amounted to 112,000 hundredweights and in 1968-69 was 80,000 hundredweights. The farm value of production has had a corresponding loss.
3. “Pineapples are the most important of the fruit crops. Production on a commercial scale is a relatively recent development on the island and most of the pineapple crop is shipped fresh to the U.S. mainland.” “Although there was a substantial gain in output in this 4-year period [from 1961-2, 57,000 tons, to 1964-5, 80,000 tons] the upward trend was interrupted. The quantity of production steadily declined with production in 1968-69 amounting to 55 thousand tons.” Most of the field crops have had a “tendency to decline or remain stable in the past 5 years.”
4. The island’s general progress has increased the demand for and production of livestock products, milk and eggs.
5. The committee set forth a table derived from a May 1969 government survey, showing the low wages paid: Down to a figure of about 55.40 per hour to labor in coffee planting and tobacco, the highest earnings (about 800) to workers in cattle and dairy farms.
B. The committee also relied on Act No. 142, effective June 30,1969, in which the Puerto Rican legislature provided a government subsidy to farm workers equal to the difference between their actual wages and the following target wage per hour: 800 for 1969-70, 900 for 1970-71, and $1.00 for 1971-72. This is obviously significant since it serves to counteract, at least prima facie, any substantial inference that although low wages were actually paid nevertheless Puerto Rican agriculture was a fairly rich and prosperous industry that could well afford to pay its workers more without going out of business, but chose instead to grind its workers beneath the heel of low wages. The statistics show that as late as May, 1969, agricultural workers made up between 11 and 12 percent of Puerto Rico’s working population (App. 125). It is a reasonably solid inference that the legislature would not have granted a subsidy to such a large segment of the population unless it felt that the employers themselves could not afford to pay as wages what the legislature deemed a minimum income for these employees.
Moreover, as the labor members of the committee protested, the very existence of this subsidy meant that a decision by the committee to raise minimum wages in a particular farm industry would impose a burden on the employers grossly disproportionate to any benefit received by the workers. As to the subsidy for 1969-70, an increase in minimum wage from 500 to 800 per hour would result in no real gain to the employees; it would simply shift the burden of paying 300 per hour from the Government to the farmers. If the increase were from 500 to $1 per hour, the workers would still receive only a 200 net raise, or 25% (20/80) while this would mean a doubling of labor costs. Even the protesting labor members recognized that with this subsidy as a fact, it would be unwise “to seek increases that will hurt the farmers *1172without helping the farm workers.” (App. 16).
Thus I have no trouble finding support for the committee’s recommendations and for its conclusion that those recommendations are the highest wage rates which “will not substantially curtail employment in the industry.” Employment is threatened by rising labor costs; especially for an industry beset by low demand curves.
II
These matters were not spelled out by the committee in the way we have come to expect of government agencies. I am willing to assume that conventional doctrines of administrative law would justify a remand for clarification of the findings. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). But I do not think that remand is appropriate in this case.
A. First, a remand for findings was not the relief requested by the Union. The Union wanted a declaration that an industry committee must apply a minimum wage of $1.30/hour unless it can justify a lower rate through a cost survey showing that the employers could not meet this minimum. The Union stated (Br. 16) that the only adequate remedy would be judicial modification of the current order to provide a $1.30 minimum wage, and that the “only alternative, an order to convene a new industry committee, allows the covered employees no present relief at all.”
Whatever merit this contention might have in ah industrial situation, where it is meaningful to talk of “cost surveys,” it is out of place in the context of Puerto Rican agriculture. The evidence showed that two-thirds of the farmers in Puerto Rico have less than a sixth-grade education (App. 49), and that few farmers keep record books and accounts. Even if the committee took a cost survey of the larger farms, which might keep such accounts, this would tell us nothing about the financial position of the more numerous small farms.
The Union may well not have brought the appeal if the only relief available were an evaluation by a new committee, yet the court is providing for further proceedings in which it may have little interest.
B. The key problem for me, however, is in defining what kind of “findings” are required of industry committees in Puerto Rico by § 8(d) of the Act, in the context of its “findings and recommendations.” 1
Section 8 of the Act, as originally passed in 1938, set up industry committees for the purpose of fixing minimum wages in specified industries in the United States. These committees were to base their recommendations on the highest wage, up to a set maximum, that would not substantially curtail employment in the particular industry. But the recommendation of a domestic industry committee was only advisory; the Administrator had authority to reject it, and § 8 specifically gave the Administrator authority to remand to the committee for further consideration and recommendations. Act of June 25, 1938, ch. 676, § 8(d), 52 Stat. 1064-65. In 1949 Section 8 was amended so as to omit all reference to domestic industry committees; their task was completed.
Since 1949, § 8 has referred only to industry committees to make recommendations as to wages payable in Puerto Rico and the Virgin Islands. Initially the provision for remand by the Administrator to the industry committee was retained. Act of October 26,1949, ch. 736, § 8, 63 Stat. 916. In 1955, however, the Act was amended to provide that the Secretary (replacing the Administrator) *1173was obligated to accept the committee’s recommendations and translate them into an order. The power to remand was deleted. Act of August 12, 1955, Pub.L. No. 84-381, § 5(d), 69 Stat. 712.
The lack of any discretion on the part of the Secretary in adopting the recommendations of the industry committee puts a dilemma to this court. We could vacate the Order of the Secretary if illegal. But when we remand, we can remand only to the Secretary whose Order is before us. We cannot ask the Secretary to tell us the reasons for the committee’s actions beyond what the committee has told him. His may have been the hand of Esau that issued the order, but the voice of Jacob as to underlying reasons was the report of the committee.
C. The difficulty of handling this appeal is intensified by the fact that the relief sought by the petitioner is a $1.30 order. Petitioner does not spell out its theory. The order before us was issued by the Administrator (presumably as delegatee of the Secretary) on January 27, 1970, effective February 13, 1970. This order increased the minimum wages prescribed by the previous wage order which went into effect on February 1, 1969, an order issued on the report of a prior industry committee which met in December, 1968. The Secretary was not required to convene another industry committee until December 1970, see Section 8(a). On November 1, 1969, the Secretary exercised his discretionary authority and established Industry Committee No. 89-A, which in December 1969 made the report, recommending increases, that the court now deems inadequate. If this is invalid, it might well have the effect of reinstating the order that became effective February 1, 1969 —which was presumably effective until validly superseded.
D. The majority opinion grapples with its problem by structuring a kind of anticipatory mandamus. It orders a remand on the basis that if petitioner should press a point that has not been pressed before us, then the Secretary should appoint an industry committee, which should govern itself by the standards laid down by the court. And all this is laid out by way of providing a relief, requirement of a determination by a new committee, that the petitioner Union brushed aside because it “allows the covered employees no present relief at all.”
There are times in which a court may soundly expatiate on the requirements of the law for the guidance of future proceedings. But I see no reason for the unusual remand order. The majority seem to consider it improper somehow, beneath the dignity of a court as it were, to affirm an order that the court considers has defects. This is not a sound approach to the judicial function. Indeed it is a routine judicial function to affirm an agency’s order that is subject to a defect that has not been properly preserved, and that judicial function may well be a judicial obligation. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). There may be an exception for actions that violate the fundamentals of law that protect basic human rights, but that is not the kind of problem before us in this case.
E. What I think this case calls for is a recognition that while there are rules of administrative law to govern administrative agencies, the procedures are not necessarily applicable across the board. There are special situations, requiring individualized approaches.
While § 8(d) of the Fair Labor Standards Act is couched in familiar terms of “findings of fact,” this language harks back to the time that the Administrator had the real power of decision. The “findings" expected of an industry committee were subject to control by the Administrator. The 1955 amendment giving unusual authority to the committees dealing with Puerto Rico and the Virgin Islands, providing that their recommendations must be accepted by the Secretary, was not due to a basic revision of legislative attitude to such tri-partite committee, but only to a limited revision for Puerto Rico and Virgin Islands. This is demonstrated by the fact that in the subsequent minimum wage legislation *1174passed in 1966 for the District of Columbia, Congress again provided for such ad hoc tripartite committees, instructing them to prepare a “report containing its findings and recommendations,” but made them only advisory, subject to revision by the permanent government officials, the D. C. Commissioners. 36 D.C.Code (1967 ed.) §§ 406, 407.
The point I am making is that what Congress contemplated for “findings” of such ad hoc tri-partite committees must take into account their distinctive nature. They are relatively informal and usually only advisory. They were given authoritative powers on'ly in the ease of Puerto Rico and the Virgin Islands where Congress was acting as a territorial legislature, or more accurately a super-territorial legislature. These territorial provisions, like provisions of state laws, are not necessarily controlled by our general doctrine of Federal administrative law, except as they are required by considerations of inherent reasonableness.
Though I agree that a wage order would be defective if it stated no findings and reasons, nevertheless we should honor the “salutary principle of judicial restraint” in regard to the kind of findings we require of a Puerto Rico industry committee. Greater Boston TV Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert, denied, 402 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971). This is especially true where, as here, the complaint to this court was not over the committee’s findings, but over its approach in getting evidence. When I add to the equation the fact that the industry committee, unlike a conventional administrative agency, had no staff or lawyer of its own, and had to rely on the Secretary for its services, I am all the more certain that we should not expect the same kind of findings that we might properly demand of, say, the FCC, see Saginaw Broadcasting Co. v. FCC, 68 App.D.C. 282, 96 F.2d 554, cert. denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938).
A crucial point is that the industry committee for Puerto Rico wages is an ad hoc tri-partite committee, not a continuing agency. Section 5(b) of the Act provides that the committee “shall include a number of disinterested persons representing the public, * * * a like number of persons representing employees in the industry, and a like number representing employers in the industry.” The members of this ad hoe committee have other full-time jobs. Its members come together for one function and then separate, like a mediation board appointed by the President for labor-management disputes. In contrast, an ordinary administrative agency is a continuing agency; all of its members are taken to represent the general public interest; and the entity stays the same although its members may change. Braniff Airways, Inc. v. CAB, 126 U.S. App.D.C. 399, 379 F.2d 453 (1967).
In my view the majority has failed to take into account (a) the unique characteristics of these tri-partite committees, and (b) the unique conditions pertinent to the Virgin Islands and Puerto Rico.2 Congress had no permanent Federal officials at hand with continuing responsibility for wages in these islands. There were territorial officials located in the islands, but Congress was interested in decisions that would avoid wage rates fixed so low as to continue undue competitive advantages over the mainland. I see no reason to suppose that Congress believed that the reports, techniques and methods of these tri-partite committees, normally advisory, were to be substantially changed by the fact that they became mandatory as to wages in Puerto Rico and the Virgin Islands.
What I would demand of these Committees is a requirement of basic reason*1175ableness, rather than the more rigid standards applied to conventional administrative agencies. When I look to the committee’s performance in this case, I am convinced that it met this requirement. The committee was faced with an almost impossible task, and it did the best it could with a kind of gradualistic approach, — -to make some wage increases, to move toward the U. S. minimum wage, but at a pace that was not so rapid as to have it court bankruptcies. While its report would not satisfy me for a conventional agency, I am sufficiently able to discern its path, see Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945), that I would not discuss a legal requirement not asked for by appellant.
In speaking for special consideration of the special nature of these committees, and the special subject-matter, I am not departing from accepted doctrine. General doctrines of administrative law are pragmatic and even plastic, and conventional criteria are not enforced when the situations and agencies have a special characteristic. As to special situations, the Supreme Court has expressly held that in the light of practical considerations, and the interest of avoiding undue prolongation of proceedings, it would affirm orders even of a conventional administrative agency (FPC), notwithstanding the fact that the accompanying findings failed to “articulate the general principles” accounting for a key determination and thus had palpable “weaknesses.” FPC v. Sunray DX Oil Co., 391 U.S. 9, 38-40, 88 S.Ct. 1526, 20 L.Ed. 2d 388 (1968); see also Trans World Airlines, Inc. v. CAB, 128 U.S.App.D.C. 126, 147-148, 385 F.2d 648, 669-670 (1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968).
As to special agencies, it has long been recognized, by the Supreme Court and this court, that actions of the National Mediation Board in railway labor disputes are subject to a much narrower scope of judicial review than administrative actions generally. See e. g., Switch-men’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S. Ct. 95, 88 L.Ed. 61 (1943); International Ass’n of Machinists and Aerospace Workers v. National Mediation Board, 138 U.S.App.D.C. 96, 425 F.2d 527 (1970).
The unstated premises of the majority opinion seem to me to be that an agency is an agency is an agency, that findings are findings are findings, and that the principles of judicial review are fully and equally applicable to all agencies. I would invoke a more flexible conception of the purpose and implications of judicial review. In providing the kind of judicial review that I think appropriate for an industry committee kind of agency concerned with the unique subject of minimum wages in the relatively depressed area of Puerto Rico, making an essentially legislative judgment as to a viable rate of transition toward equality with continental wages, I conclude that the order before us is reasonable and should be affirmed.
I respectfully dissent.
. “(d) The industry committee shall file with the Secretary a report containing its findings of fact and recommendations with respect to the matters referred to it. Upon the filing of such report, the Secretary shall publish such recommendations in tlie Federal Register and shall provide by order that the recommendations contained in such report shall take effect upon the expiration of 15 days after the date of such publication.”
. As to matters involving Puerto Rico and tlie Virgin Islands, even the Constitution does not follow the flag in all respects; thus it does not pertain to these offshore islands with respect to the requirement of uniform duties, import and excise taxes laid by Congress. Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901).