concurring in part and dissenting in part:
I concur in Parts I and III of the court’s opinion to the extent that they set forth the *173factual and legal background of this case. I also concur in Part II which holds that workmen’s compensation policies issued to government contractors are subcontracts within the meaning of the regulations that implement Executive Order 11,246.
I dissent from the conclusion reached in Parts IV and V of the court’s opinion holding that there is no congressional authority for imposing the requirements of Executive Order 11,246 on Liberty Mutual Insurance Company.
The reasons for my dissent can be stated briefly. The equal protection component of the fifth amendment bars executive departments and agencies from employment discrimination on account of race, religion, or sex. Implicit in the Procurement Act,* I believe, is authorization for the President to promulgate orders and regulations requiring government contractors and their subcontractors, who are engaged pursuant to the Act, to observe the ban against employment discrimination that the Constitution imposes on the executive branch. The Executive Order and its implementing regulations are a reasonable means for achieving this constitutional and statutory end. They comply with § 486(a) because they are “not inconsistent with the ... Act,” and it is evident that the President “deem[s] [them] necessary to effectuate the provisions of [the] Act.” Therefore, it seems to me, when Congress authorized executive departments to procure goods and services, it also authorized the President to promulgate such orders and regulations as he deemed necessary to assure the obedience of government contractors and subcontractors to the constitutional restrictions on the powers granted the executive branch. In short, Congress armed the President with sufficient authority to prohibit government contractors from engaging in the discriminatory practices that the Constitution forbids to the government itself.
To buttress my dissent, I rest on the opinion of the district court, Liberty Mutual Insurance Co. v. Friedman, 485 F.Supp. 695, 708-16 (D.Md.1979). There the court rejected the arguments that Executive Order 11,246 lacked legislative authority. This decision accords with those of courts of appeals that have examined this subject. See United States v. New Orleans Public Service, Inc., 553 F.2d 459, 465-68 (5th Cir. 1977), vacated and remanded on other grounds, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978); Rossetti Contracting Co. v. Brennan, 508 F.2d 1039, 1045 n.18 (7th Cir. 1975); Northeast Construction Co. v. Romney, 485 F.2d 752, 760-61 (D.C.Cir. 1973); Contractors Association v. Secretary of Labor, 442 F.2d 159, 166-171 (3d Cir. 1971); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3, 7-8 (3d Cir. 1964).
Indeed, among the courts of appeals, this court alone impugns the authority of the Secretary, as the President’s delegate, to enforce Executive Order 11,246 against a subcontractor. Dissenting, I would affirm the judgment of the district court.
40 U.S.C. § 486(a) provides:
The President may prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act, which policies and directives shall govern the Administrator and executive agencies in carrying out their respective functions hereunder.