concurring.
I believe that the majority have not adequately explained their refusal to answer either of the questions certified by the district court. It is not incumbent upon the court to state reasons why it would or would not vote to accept an appeal under § 1292(b). Senate Report No. 2434, 85 Cong. 2d Sess., pp. 3, 4, U.S.Code Cong. & Admin.News, 1958, p. 5255. However, I consider it useful to do so in this case, especially as a prior panel of our court granted permission to appeal.
There is an important distinction between the functions of the panel passing on the original request to allow an appeal under § 1292(b) and the panel which thereafter considers an appeal which has been allowed. The original panel is not required to do more than agree that the certified matter appears to be worthy of immediate appellate consideration. On the other hand, the panel which considers the matter after full briefing and consideration of the issues may well be in a better position to determine that what seemed proper for interlocutory review really should not be so reviewed.1 I therefore do not consider the majority’s present decision to be in impermissible conflict with the decision of the earlier panel. Nor do I say this because the matter is now considered in banc.
I.
The majority have refused to determine whether the class was properly certified because they fail to discern a “controlling question of law.” I might agree with their conclusion were we untrammeled by precedent. However, in Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974), a majority of this court sitting in banc held that whether a district court has committed an abuse of discretion in certifying a class is a controlling question of law for purposes of § 1292(b). I nevertheless concur in the majority’s refusal to discuss the propriety of class certification, since there has not been a sufficient showing that the issues raised admit of a “substantial ground for difference of opinion.” As the majority noted in Katz, it is unlikely that a district court would certify that there is “substantial ground for difference of opinion” as to the correctness of one of its orders unless it thought so. But it can hardly be assumed that district courts will always properly review the criteria mentioned in § 1292(b): as the majority stated in Katz, “[djenial of permission to appeal may be based upon a different assessment than that of the district court as to any of the three [mentioned] criteria.” 496 F.2d 747, 754.
Appellants have questioned the class certification order on several grounds,2 including that the district court failed to properly identify the factors relevant to the class certification decision and that it abused its *866discretion in evaluating the factors which it did identify. But the only allegation of error which poses a substantial and out of the ordinary question is that the certification is invalid because it was premised on the assumption that the court could decertify the class after the initial stage of the proceedings.
Were it clear that the court did rest its decision on this assumption, I might conclude that there is “substantial ground for difference of opinion” as to the propriety of the class certification. But it is far from clear that the district court was thinking of decertification under F.R.Civ.P. 23(c)(1) rather than the possibility of holding bifurcated proceedings within the overall class action suit. The portion of the court’s order which sets forth the “controlling questions of law” mentions a “bifurcated trial in this case of liability and damages,” and does not mention decertification, which would seem to relegate proof of any damages to an entirely separate lawsuit. The court’s Memorandum Opinion states that “[t]he most appropriate way to proceed in this case is to bifurcate the issues of liability and damages,” and indicates how discovery would proceed in the event there was a finding of liability. While the court also said that it had the “right to decertify the class following a determination of liability against the defendants,” it cited for this assertion Ungar v. Dunkin’ Donuts of America, Inc., 68 F.R.D. 65 (E.D.Pa.1975), rev’d on other grounds, 531 F.2d 1211 (3d Cir.), cert. denied (1976), which refers to a bifurcated trial, not decertification. He also cites 3B Moore’s Federal Practice, Para. 23.45[2], which speaks generally of separate “proceeding[s]” for assessing individual damages, and does not specifically discuss decertification.
In sum, the question of whether the district court could decertify the class after the initial stage of the proceedings is not clearly before the court. Since the other allegations of error do not raise a “substantial ground for difference of opinion” within the statutory meaning and since this court has a legislative mandate to ensure that § 1292(b) does not undermine the proper scope of the finality rule, I conclude that we should not address the propriety of the class certification, even though that question, if entertained, might be easily disposed of. See Milbert v. Bison Laboratories, 260 F.2d 431 (3d Cir. 1958).
II.
The majority also decline to discuss whether it is permissible under the Seventh Amendment to have a bifurcated trial of liability and damages with separate juries for each segment of the case. Their decision is based on the fact that the district court has not at this point ordered such a trial. But I do not think this is a complete response to the issue posed, since one can still argue that the Seventh Amendment claim may be entertained on this appeal because it is raised by the class certification order.
I conclude that the Seventh Amendment problem should not be considered because it is not sufficiently implicated in the class certification decision. We should not consider the Seventh Amendment questions which might inhere in decertification procedures, since, as noted, it is not clear that the court based its decision to certify on the assumption that it could decertify before proof of individual damages. Moreover, as to bifurcating the present action into liability and damage stages, the court’s Memorandum Opinion mentions several techniques other than separate juries by which the proof of damages might be handled in a bifurcated proceeding, such as using a Master to calculate damage to individual class members, or using “expert testimony, statistical computations and computer analysis.”
I therefore concur in the disposition by the majority if, as I understand it, the majority is vacating the earlier order of our court granting permission to appeal and remanding the case to the district court.
. The Court has now approved the following Internal Operating Procedure:
“The fact that a motion panel has permitted an appeal under 28 U.S.C. § 1292(b) does not, in any manner, bind or restrict the merits panel in its subsequent disposition of the appeal.”
. On a proper appeal under § 1292(b), we would consider any issue relevant to our consideration of the order appealed from which had been “properly put in dispute by the parties.” Johnson v. Alldredge, 488 F.2d 820, 823 (3d Cir. 1973).