dissenting:
I respectfully dissent for the reasons expressed in the superseded panel opinion, 678 F.2d 1190, which held that plaintiffs’ individual rights of action were not terminated by the institution of an EEOC action nor precluded by the entry in that action of a *585consent judgment to which they were not parties and whose terms they had affirmatively rejected. I continue to believe (as presumably does the EEOC, the federal agency charged with enforcing the statutory scheme in issue) that under the circumstances the EEOC was entitled under § 706(f)(1) to issue to these plaintiffs the right-to-sue letters upon which this action was brought and that the underlying rights of action are subsisting ones.
With all deference, nothing said in the per curiam opinion of the en banc court dissuades me from the interpretation given the controlling statutory provision by the original panel decision. As the majority opinion notes, those of us in dissent are particularly concerned that the contrary interpretation now reached imposes an utterly unrealistic burden upon Title VII charging parties. Under that interpretation, charging parties are required at their peril, and unaided by the principals, to follow the course of agency-employer conciliation or “settlement” efforts closely enough to protect their individual interests by formal in-' tervention if, following institution of an agency action, those negotiations seem headed toward an unfavorable settlement.
There is nothing in the relevant statutory framework that lays upon the EEOC or the employer any obligation to keep charging parties advised of the details of those negotiations; of whether any “settlement” is imminent; of whether any settlement under consideration is to be expressed in a conciliation agreement or in a consent judgment; of the details or even the substance of a “settlement” that has been informally reached and remains only to be formalized by either means; of whether and when an agency action is to be commenced; of the fact that one has been commenced; or of anything else about the course of agency-employer dealings. The formal agency documents on file and a part of the record in this case contain no information along these lines of which charging parties might be held to have constructive notice. On oral argument we were given to understand by counsel for the EEOC, appearing as amicus, that the agency does not consider itself under any obligation and does not routinely keep all charging parties even generally apprised of the course of its conciliation-“settlement” negotiations. Certainly there is no suggestion that in this case—where presumably the normal course of proceedings was followed—these charging party-plaintiffs were ever sufficiently advised along these lines to make an informed decision that they must formally intervene— with the attendant expense—in order to protect their interests against an imminent consent judgment that did not satisfactorily protect them.
To the plain difficulty created for charging parties by its interpretation the en banc majority—which commendably concedes the difficulty—has only the meager response that the law after all affords these and comparably situated claimants the same means to protect their interests vis-a-vis agency action in their behalf that it does all persons in whose behalf federal agency action is undertaken. When the practicalities of the real-life situation involving these and comparably situated Title VII charging parties in their relation to EEOC-employer negotiations are frankly recognized, this assessment calls to mind—though with none of its implications of callousness—Anatole France’s wry comment about actual as opposed to apparent impartiality of the law’s general reach.1
If to all this it be rejoined that it is not our function to re-write statutes to cure perceived difficulties but simply to apply them according to their plain import, my response remains as it was in the panel majority opinion: that the dispositive statutory provision here is sufficiently ambiguous to require judicial interpretation drawing on the traditional aids. Among those traditional aids—in addition to the legislative history specifically alluded to in the *586panel opinion, see 678 F.2d at 1193-94—is that ancient and honorable canon of construction that when a literal interpretation (“conciliation” means only “conciliation”) would lead to mischievous consequences, legislative intent is properly sought at deeper levels of purpose. See J. Sutherland, Statutes and Statutory Construction § 363 (2d ed. 1904). I continue to believe that in General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), the Supreme Court, by the clearest possible implication, and perhaps drawing sub silentio upon that canon, has already rejected the narrowly literal interpretation of § 706(f)(1) for which Proctor & Gamble has contended and which the en banc majority now adopts. See 678 F.2d at 1194-95 & n. 7. The General Telephone Court’s careful discussion of the practical means by which employers entering into Title VII consent judgments with the EEOC may protect themselves against the private claims of employees—including charging parties—who may later reject the agency-employer settlement, see General Telephone, 446 U.S. at 333 & n. 15, 100 S.Ct. at 1708 & n. 15, is sensible only if it assumes that such judgments are not legally binding on those employees and that the employees’ private rights of action are not terminated by mere institution of agency actions under § 706.
I am authorized to say that Chief Judge WINTER and Judge SPROUSE join in this opinion.. “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” A. France, Le Lys Rouge ch. 7 (1894), quoted in J. Cournos, A Modern Plutarch 27 (1928).