join (dissenting):
I respectfully dissent from the en banc court’s decision. In view of the Comptroller General’s recent decision on agency reimbursement of intervenors’ expenses, I believe we should remand to the FPC for further consideration of the intervenors’ request in this case. I do not think the Commission’s authority to pay intervenors’ litigation expenses has been precluded by our decision in Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), or by 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 question raised in Greene County I was whether the court should order the *1241Commission to pay for intervenors’ expenses. On this issue, the panel concluded:
[W]e find ourselves in agreement with the Commission’s position that at this posture of the proceedings and under current circumstances, without a clearer congressional mandate we should not order the Commission ... to pay the expenses and fees of petitioners .
Without a showing of compelling need, it would be premature for us to inject the federal courts into this area of administrative discretion, perhaps foreclosing more flexible approaches through agency action or rules.
455 F.2d at 426, 427.
In deciding whether the FPC could be required by court order to pay intervenors’ expenses the Greene County I panel considered two statutes, § 309 of the Federal Power Act, 16 U.S.C. § 825h, which deals with the FPC’s rulemaking powers, and § 314(c) of that Act, 16 U.S.C. § 825m(c), which authorizes the Commission to employ attorneys for its own use. Finding no such requirement in these statutes, the panel understandably reasoned that a court should not order an agency to disburse funds “[without] a far clearer congressional mandate,” 455 F.2d at 426.
Such caution was appropriate: since the power of the purse belongs to Congress, a court is not free to disburse agency funds whenever it thinks this would be fair. Not only would such judicial freelancing impinge on Congress’ constitutional prerogatives, it would also tend to place administrators in the embarrassing position of trying to follow a court’s order without any assurance that the funds would be available. For this reason, courts have declined to order agency disbursements over the opposition of Congress’ auditing agent, the Comptroller General, except where the duty to pay is “free from doubt.” Compare Brunswick v. Elliot, 70 App.D.C. 45, 103 F.2d 746, 750-51 (1939), with Miguel v. McCarl, 291 U.S. 442, 454, 54 S.Ct. 465, 78 L.Ed. 901 (1934).1
We are now dealing with a different issue, which is whether the Commission has discretionary authority to pay for intervenors’ expenses if it considers such reimbursement to be necessary or desirable. That federal agencies possess such discretionary authority has been recognized by the Comptroller General since the Greene County I panel decision, and in the case of the FPC would be based on two statutes that were not considered by that panel, § 308 of the Federal Power Act, 16 U.S.C. § 825g,2 which deals with Commission hearings, and the statute enacted by Congress which provides a general appropriation to pay for “expenses necessary for the work of the Commission,” 90 Stat. 889, 898.3 As head of the General Accounting Office, the Comptroller General has the power to pass in advance on the legality of administrative *1242expenditures. See 31 U.S.C. § 74.4 Approval by the Comptroller General assures the agency making the disbursement that the necessary funding will not later be withheld by Congress. By his decision in Matter of Costs of Intervention — Nuclear Regulatory Commission, Dec. B-92288 (Feb. 19, 1976), and Matter of Costs of Intervention — Food & Drug Administration, Dec. B-139703 (Dec. 3,1976), and by his May 10, 1976 letter to the Oversight and Investigations Subcommittee of the House Committee on Interstate and Foreign Commerce, the Comptroller General has categorically held that the FPC has discretionary authority to reimburse expenses of impecunious intervenors who “ ‘contribute substantially to a full and fair determination of’ the issues before it.” Costs of Intervention— FDA, supra at 5.
Since the Comptroller General is Congress’ chief agent for guarding the public fisc, his opinions on expenditure issues are comparable to those of an agency in its area of special responsibility, and they are entitled to at least as much deference from courts as is given to an enforcing agency’s statutory interpretations, see, e. g., Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Judicial deference is particularly appropriate here where the Comptroller General’s interpretation is one which limits rather than expands his power over the purse strings. Compare FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-46, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973).
The Comptroller General based his decision on the proposition that:
where an appropriation is made for a particular object, purpose, or program, it is available for expenses which are reasonably necessary and proper or incidental to the execution of the object, purpose or program for which the appropriation was made, except as to expenditures in contravention of law or for some purpose for which other appropriations are made specifically available.
Costs of Intervention — NRC, supra at 3. Since public hearings are integral to the functioning of an agency such as the FPC, authorization for reimbursement of indigent intervenors who make important contributions in these hearings can reasonably be found in the agency’s general statutory mandate, see 16 U.S.C. § 793, as well as § 825g. See also Note, Federal Agency Assistance to Impecunious Intervenors, 88 Harv.L.Rev. 1815, 1828-29 (1975).
Although express statutory authorization is required before either a court or a regulatory commission can order one litigant to pay a prevailing litigant’s expenses on the ground that the prevailing litigant represents the public interest, Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Turner v. FCC, 169 U.S.App.D.C. 113, 514 F.2d 1354 (D.C.Cir.1975), fee reimbursement is distinguishable from fee shifting because it involves no direct exercise of compulsion against a private party.5 Alyeska was decided in the context of a long history of cases upholding the “American Rule” against taxing attorneys’ fees to the losing *1243party, see 421 U.S. at 247-54, 95 S.Ct. 1612; a general statute for taxing, costs, 28 U.S.C. § 1920, which was intended to be comprehensive and which omitted attorneys’ fees from the list of allowable costs, see 421 U.S. at 255-56, 95 S.Ct. 1612; and a number of statutes explicitly authorizing attorneys’ fees assessments in certain specific types of cases, see 421 U.S. at 260-62, 95 S.Ct. 1612. None of these factors is present here. Because “public interest” intervention is largely a recent development, there is no long-established rule against agency funding for intervenors. Congress has legislated on the subject only twice, see Toxic Substance Control Act, 15 U.S.C. § 2620(4)(C); Clean Air Act § 304(d); moreover, in declining to enact provisions for attorneys’ fees payments in proceedings before the Nuclear Regulatory Commission, Congress declared that its intention was to let the NRC decide for itself whether parties should be given reimbursement for attorneys’ fees. See House Conference Rep.No. 93-1445, 1974 U.S.Code Cong. & Admin.News at 5550-51. Accordingly, I conclude that it was altogether reasonable for the Comptroller General to find that agency reimbursement of intervenors’ attorneys’ fees need not await further legislation from Congress.6
The decision of the en banc majority seems an unfortunate step backwards. Public funding for public interest intervenors has become necessary to the optimal functioning of the administrative process. Involvement in administrative proceedings is time-consuming and expensive, and where individual interests are diffuse and noneconomic these costs are a substantial barrier to effective participation.7 When good citizens are willing to give their time and money to voice a broader public interest and thus to make useful contributions to government decisionmaking, there should be some means for reimbursing their reasonable attorneys’ fees, expert witness costs, and other expenses. Otherwise, many good causes will be crippled because of financial limitations on presentation, and many others will go unpled. Intervenors who represent public interests in addition to their own interests have important contributions to make to the regulatory process.8 Where such intervenors aid an agency in performing its statutory duties, it is only fair that the costs of intervention should be treated as part of the cost of agency administration.
. An adverse Comptroller General’s ruling does not prevent a claimant from pursuing a suit for money damages against the United States in the Court of Claims. 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); see, e. g„ Iran Nat’l Airlines Corp. v. United States, 360 F.2d 640, 641-42, 175 Ct.Cl. 504 (1966).
. 16 U.S.C. § 825g(a) provides:
(a) Hearings under this chapter may be held before the Commission, any member or members thereof or any representative of the Commission designated by it . . . . In any proceeding before it, the Commission, in accordance with such rules and regulations as it may prescribe, may admit as a party any interested State, State commission, municipality, or any representative of interested consumers or security holders, or any competitor of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest.
' The FPC’s appropriation was for the fiscal year here in question over $41 million. The Commission is authorized by 16 U.S.C. § 793 to make “such expenditures ... as are necessary to execute its functions.” Moreover, under section 6 of the Federal Power Act, 16 U.S.C. § 799, licenses issued by the Commission include the condition of section 10(e) that the licensee pay a share of the Commission’s administrative costs. Thus the license is in the nature of a contract under which the licensee expressly agrees to share administrative costs, including fees required to be paid.
. In passing on the legality of expenditures, the Comptroller General has a “judicial duty” to “determine finally the construction of statutes.” See Joint Commission Report, 26 Cong. Rec. at 7483-84 (1894); 21 Op. [Atty.Gen.] 178, 181 [1895],
. Here, indeed, there is not the fee-shifting that was prescribed in Alyeska; at least to the extent of the Commission’s own general appropriation, note 3 supra and accompanying text, any fees paid to intervenors can properly be said to come from the Commission’s own funds, not those of the licensee. To the limited extent that this might not be true, moreover, by virtue of the licensee’s statutory duty under section 10(e) of the Federal Power Act, 16 U.S.C. § 803(e), to pay a share of the Commission’s administrative costs included as a condition of the license which is agreed to by the licensee under section 6, 16 U.S.C. § 799, any “shifting” of fees involved would be done by the contract — the license itself. This is perfectly proper under Alyeska, 421 U.S. at 257, 95 S.Ct. at 1621 (“the general rule that, absent statute or enforceable contract, litigants pay their own attorneys’ fees”) (emphasis added).
. Despite the fears expressed by my brother Kaufman about “judicial structuring” and “judicial lawmaking,” 1 see no cause for concern here. It would be the administrative agency, and not the court, which in the first instance would determine whether intervenors make a substantial enough contribution to the administrative process to merit a fee award.
. See 88 Harv.L.Rev. at 1819 & n. 23.
. See Leventhal, Attorneys' Fees for Public Interest Representation, 62 A.B.A.J. 1134 (1976).