dissenting:
I concur with the majority that the petition for review of Greene County and the Town of Greenville be denied but disagree with my brothers’ disposition of the petition of the Town of Durham and the Association for the Preservation of Durham Valley.
In 1972, when this case was before us on a prior appeal, we reviewed the statutory authority of the Federal Power Commission and found no basis “to extend the Commission’s power to include paying or awarding the expenses or fees of intervenors.” Greene County Planning Board v. FPC, 455 F.2d 412, 426 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). We are now advised that the Comptroller General, presumably after examining the same statutory provisions, has reached exactly the opposite conclusion. Moreover, appellants, Town of Durham and Association for the Preservation of Durham Valley, now demand that we direct the Federal Power Commission to comply with the Comptroller General’s contrary interpretation of the law. I cannot agree that this is a proper role for this Court to play.
I can find no statute which empowers the Comptroller General to issue what is in effect a declaratory judgment clothing the Federal Power Commission with authority to disburse public funds, in the face of the Commission’s own determination that it has no such power and this Court’s finding in support thereof. See 2 West’s Federal Practice Manual (1970) § 1721 at 162. His authority and responsibility as the auditing agent of Congress is to provide a sound accounting structure for the government from the standpoint of effective financial control and independent audit. 31 U.S.C. § 65(d); H.R.No. 2556, 1950 U.S.Code Cong. Service 3707, 3717. While the Comptroller General has not hesitated to withhold approval of disbursements which he has determined to be “illegal”, some of his activities in this field have been said to be based üpon “dubious authority” and to represent “questionable policy”. T. Morgan, The General Accounting Office: One Hope for Congress to Regain Parity of Power With the President, 51 N.C.L.Rev. 1279, 1283 (1973). Be that as it may, his administrative control of the purse strings as the representative of Congress gives him power in this area which has not often been challenged by the courts. See, e. g., Brunswick v. Elliott, 103 F.2d 746, 750-51, 70 App.D.C. 45 (1939). However, when the Comptroller General has gone beyond the bounds of the authority which may legitimately be construed to be his, the courts have not hesitated to disregard his holdings. See Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901 (1934); McCarl v. Cox, 56 App.D.C. 27, 8 F.2d 669, 671 (1925).1
No officer or agent of the United States may disburse public money unless authorized by Congress to do so. Royal Indemnity Co. v. United States, 313 U.S. 289, 294, 61 S.Ct. 995, 85 L.Ed. 1361 (1941); Heidt v. United States, 56 F.2d 559, 560 (5th Cir. 1932); Fansteel Metallurgical Corp. v. United States, 172 F.Supp. 268, 270, 145 Ct.Cl. 496 (1959). Congress has specifically provided that sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which appropriations were made and for no others, 31 U.S.C. § 628, and has prohibited any officer or employee from involving the government in any obligation for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such obligation is authorized by law. 31 U.S.C. § 665(a). The Federal Power Commission has never deemed itself authorized to pay the legal fees of private litigants, and, a fortiori, has made no request of Congress for an appropriation to pay these fees. Authorization for this pay*1237ment must come from Congress, Turner v. FCC, 169 U.S.App.D.C. 113, 514 F.2d 1354, 1356 (1975); it cannot be derived from a letter of the Comptroller General addressed to the chairman of a congressional committee.
31 U.S.C. § 74, relied upon by the majority, permits the head of an executive department, in his discretion, to apply to the Comptroller General for a commitment in advance that the GAO will not question the validity of a specific disbursement in passing upon the account of that department. Such commitment has never been requested by the Federal Power Commission in this case, because it has not sought to exercise the authority which the Comptroller General has conceded to it. In reviewing the determination of the Commission which is presently before us it is for this Court to-decide all relevant questions of law and make all requisite statutory interpretations. 5 U.S.C. § 706. Mulry v. Driver, 366 F.2d 544, 549 (9th Cir. 1966).2 We abdicate our responsibility when we treat an unsolicited interpretation by the Comptroller General as the equivalent of a Supreme Court ruling, and needlessly inject the Federal Courts into an area of administrative discretion when we compel the Federal Power Commission to conform its practices to what the Comptroller General opines are proper. Cf. Greene County Planning Board v. FPC, supra, 455 F.2d at 427.3
Even if my brothers are correct in holding that we must require the Federal Power Commission to follow the Comptroller General’s ruling, we should not go beyond the scope of that ruling. The Comptroller General’s stated position is that only the administrative agency involved can make the determination as to whether payment of the expenses of indigent intervenors is appropriate. The Commission, recognizing that Durham intervened for the protection of its own interests, found payment of its attorneys’ fees to be inappropriate. We should not require the Commission to reconsider its discretionary determination merely because we have some doubts about its fairness. 5 U.S.C. § 701(a)(2); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir. 1965). Reimbursement of the expenses of private interests who “may sometimes cloak themselves with a semblance of public interest advocates”, Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994, 1006 (1966), is a matter properly within the cognizance of the agency involved.
For the foregoing reasons, I respectfully dissent from that portion of the majority’s decision which grants the petition of the Town of Durham and the Association for the Preservation of Durham Valley.
ON REHEARING EN BANC
Before KAUFMAN, Chief Judge, and LUMBARD, MANSFIELD, MULLIGAN, *1238OAKES, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.*Petition for review of that portion of an order of the Federal Power Commission denying requests of Greene County Planning Board, Town of Greenville, Town of Durham and Association for the Preservation of Durham Valley for payment of litigation expenses.
Petition denied by court sitting en banc.
VAN GR A AFEIL AND, Circuit Judge:After six years of litigation over the construction of a power line in Greene County, New York, the dispute between the parties has resolved itself into the issue of whether the Federal Power Commission is authorized to award counsel fees to petitioners who opposed the construction.
In 1972, when this case was before us on a prior appeal, we held that the Federal Power Act did not authorize the making of such an award. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 426 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Following that decision, further hearings were held before the Commission, at the conclusion of which it denied petitioners’ requests for counsel fees and expenses. Relying upon our ruling and upon the Supreme Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Commission found that it was not empowered to grant petitioners’ requests. It also said in its opinion (No. 751, January 21, 1976):
These intervenors are protecting their own interests, and we see no reason to grant them fees and expenses. If they were generally allowed, a large financial burden would be imposed on this Commission and the taxpayer or upon the utility involved and inevitably on its rate payers. In the absence of a mandate in the statute we are loath to attempt such an expensive departure from past practice.
Upon appeal, a panel of this Court, with one judge dissenting, reversed that portion of the order disallowing the applications for fees and remanded to the Commission for further consideration of petitioners’ requests.1 Petitions for en banc consideration were granted solely as to this issue and a majority of the Court, sitting en banc, hold that the petition for review of that portion of the Commission’s order denying an award of attorneys’ fees should be denied.
In arguing for remand, petitioners rely upon an interpretation of the Federal Power Act by the Comptroller General of the United States which is contrary to our own. In Matter of Costs of Intervention — Nuclear Regulatory Commission, B-92288 (Feb. 19, 1976), the Comptroller General held that the NRC had statutory authority to pay the legal expenses of intervenors. In a subsequent letter addressed to the Oversight and Investigations Subcommittee of the House of Representatives’ Committee on Interstate and Foreign Commerce, the Comptroller General stated that this opinion was applicable to nine other agencies, including the Federal Power Commission. We are thus met squarely with the issue of whether this Court’s interpretation of the Federal Power Act or that of the Comptroller General shall control the disposition of this appeal. We hold that our interpretation must control.
Congress has specifically provided that “[t]o the extent necessary to decision . the reviewing court shall decide all relevant questions of law,” and “interpret constitutional and statutory provisions” and shall “hold unlawful and set aside agency action ... in excess of statutory jurisdiction, authority or limitations . . . 5 U.S.C. § 706; see Mulry v. Driver, 366 F.2d 544, 549 (9th Cir. 1966). We are not prepared to abdicate the *1239responsibility thus conferred by holding that the authority of the Federal Power Commission is to be determined by the Comptroller General’s interpretation of the law rather than our own.
31 U.S.C. § 74 permits the head of an executive department, in his discretion, to apply to the Comptroller General for a commitment in advance that the General Accounting Office will not question the validity of a specific disbursement in passing upon the account of that department.2 A commitment given in response to such a request operates as a form of estoppel against subsequent challenge by the GAO. It is not, however, a binding legal opinion, but one which may be contested in the courts. United States ex rel. Brookfield Construction Co. v. Stewart, 234 F.Supp. 94, 100 (D.D.C.), aff’d, 119 U.S.App.D.C. 254, 339 F.2d 753 (1964). It is for the courts to determine the intent of Congress as expressed in its legislative enactments. In making this determination, as we do in this case, we interfere in no way with the authority of the Comptroller General to approve or disapprove disbursements made by executive agencies. We simply hold that the Federal Power Commission has no statutory authority to make the disbursements in question. Cf. Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901 (1934).
We note that in Matter of Costs of Intervention — Nuclear Regulatory Commission, supra, the Comptroller General did not merely hold that the NRC had authority to pay legal expenses of intervenors; he specified the conditions under which payment could be made. He said: (1) NRC must believe that participation by the intervenor is required by statute or necessary to represent adequately opposing points of view; (2) the intervenor must be indigent or otherwise unable to bear the financial cost of participation. Subsequently, although there were no statutory changes, the Comptroller General modified these conditions, holding that payment is authorized if an agency determines that an expenditure for participation “can reasonably be expected to contribute substantially to a full and fair determination” of the issues even though the expenditure might not be essential. See Matter of Costs of Intervention — Food and Drug Administration, B-139703 (Dec. 3, 1976). The Comptroller General also perceived no legal objection to the making of awards “solely to ensure that a potentially affected interest is represented” or to giving the “representational role of the participant special weight in deciding whether to provide financial assistance.” Id.
The authority of a Commission to disburse funds must come from Congress, Turner v. FCC, 169 U.S.App.D.C. 113, 514 F.2d 1354, 1356 (1975); and it is for Congress, not the Comptroller General, to set the conditions under which payments, if any, should be made. No officer or agent of the United States may disburse public money unless authorized by Congress to do so. Royal Indemnity Co. v. United States, 313 U.S. 289, 294, 61 S.Ct. 995, 85 L.Ed. 1361 (1941); Heidt v. United States, 56 F.2d 559, 560 (5th Cir. 1932); Fansteel Metallurgical Corp. v. United States, 172 F.Supp. 268, 270, 145 Ct.Cl. 496 (Ct.Cl.1959). Sums appropriated for the various branches of expenditure in the public service must be applied solely to the objects for which appropriations were made and for no others. 31 U.S.C. § 628. Congress has shown a lively interest in the matter of financial assistance for intervening parties, and legislation dealing with this subject has been introduced in both the 94th and 95th Sessions of Congress.3 In light of the Supreme Court’s very broad language in Alyeska Pipeline *1240Service Co. v. Wilderness Society, supra, 421 U.S. at 257, 95 S.Ct. at 1621, that “absent statute or enforceable contract, litigants pay their own attorneys’ fees”, a finding that the Federal Power Commission is empowered to reimburse intervenors for their legal expenses must await appropriate Congressional action.
The petitions for review are denied.
. For discussions of the question of judicial review, see H. Mansfield, Judicial Review of the Comptroller General, 20 Cornell L.Q. 459 (1935); see also Note, 3 Geo.Wash.L.Rev. (1934) at 97.
. In so doing, we should not overlook the Commission’s own interpretation of its statutory powers and the practices adopted by it pursuant thereto. See Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 74 L.Ed. 538 (1930).
. The majority’s attempt to find support for the Comptroller General’s decision in the provisions of 16 U.S.C. § 793, which authorizes the Commission to make expenditures “necessary to execute its functions”, is in clear contradiction of our prior holding in Greene County Planning Board v. FPC, supra, 455 F.2d 412. A commission’s “functions” cannot exceed its powers. The administrative powers of the Federal Power Commission are set forth in section 309 of the Federal Powers Act,' 16 U.S.C. § 825(h), and we held in Greene that such powers did not include the paying or awarding the expenses or fees of intervenors.
We also pointed out in Greene, at 427, that in 1971 the Administrative Conference of the United States “refused to adopt a recommendation which would have endorsed the principle of reimbursing the legal expenses incurred by intervenors in administrative proceedings.” Since then, Congress has had legislation under consideration which would authorize administrative agencies to award litigation expenses to intervenors, depending on their contribution to the decision making process. See S.Rep.No. 94-863, 94th Cong., 2d Sess. (1976). Until Congress, the people’s chosen representative, speaks, it is “inappropriate” for this authorization to be granted by anyone else. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
. The panel opinion left intact the orders of the Federal Power Commission which authorized construction of an electrical transmission line by the Power Authority of the State of New York.
. The Federal Power Commission has never deemed itself authorized to pay the legal fees of private litigants and has sought no commitment from the Comptroller General as to the validity of such payments. This interpretation of the Federal Power Act by the agency charged with its administration is entitled to great deference from this Court. Udall v. Tall-man, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
. Congress is presently deliberating three bills dealing with the subject of intervenors’ costs. They are collectively identified as “Public Participation in Federal Agency Procedures Act of 1977”, S.270, H.R. 3361 and H.R. 3362.