concurring:
I concur in Judge Hall’s opinion. That opinion, with the author’s characteristic clarity of style, correctly resolves the black lung presumption issues in a manner which both advocates and claims adjudicators would easily understand. I write separately only to respond to several issues raised in Judge Phillips’ opinion. I feel it tends to confuse the issues by trying to form into a traditional mold an evidentiary scheme designed by Congress to be singularly untraditional.
I.
The first task in our appellate review of these consolidated cases is to determine the Secretary’s meaning when he published the presumption regulation. If we can determine that meaning, then we, of course, give deference to it unless it is clearly erroneous. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). If, as Judge Phillips concludes, the Director’s 1 interpretation of section 203 as contained in his brief were of the character that required judicial deference, we must accept that meaning unless it is contrary to the statute authorizing it. Our only task in that event would be to determine if that interpretation exceeded the authority delegated by Congress.
In my view, however, the Director’s contentions advanced here as a litigant are not entitled to deference as an expression of the regulation’s meaning. The posture of the Director on this appeal is essentially that of an advocate. Having received permission to intervene, he has briefed his arguments as to the meaning of the regulation creating the interim presumption. He makes no contention in his brief that he has previously or consistently interpreted the regulation as he now interprets it as an advocating party. To accept such a bald litigation statement as a binding agency interpretation is, to me, an ill-conceived application of the “deference rule.”
I feel that Judge Hall’s opinion captures the exact meaning of the regulation and that the position advanced by the Director is contrary to its purpose. This conflict becomes apparent upon examination of the Secretary’s actions in promulgating the regulation together with a review of the statute and congressional intent in enacting its various sections. Since Judge Phillips places such great reliance on deference to the Director’s position, however, I feel it important to divert here from the main thesis of my concurring opinion to explain *450why I think the Director's appeal position is not entitled to the judicial deference described in Bowles and its progeny.
In Bowles, the Supreme Court articulated the now frequently quoted rule that:
a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt ... the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.
325 U.S. at 414, 65 S.Ct. at 1217. The Court did not then nor has it since, however, described the type of interpretative action which is of sufficient dignity and reliability to deserve such preclusive judicial deference. In fact, the simplicity of the Bowles statement belies the extremely complex problem of judicial review of administrative regulations generally and of review of an agency’s interpretation of its regulation in particular. One commentator has stated that the deference rule is not only a series of rules, but that a court’s choice in using them vel non is frequently dictated by the result oriented inclination of some judges or justices.2 See also 2 K. Davis, Administrative Law § 7.22 (1979). Applying the Bowles decision, many courts, including this one, will not defer to an agency’s interpretation of its previously issued regulations unless that interpretation has been “reasonably and consistently applied.” Burnley v. Short, 730 F.2d 136, 139 (4th Cir.1984); Allen v. Bergland, 661 F.2d 1001, 1004 (4th Cir.1981); see also United States v. Board of Supervisors of Arlington County, 611 F.2d 1367, 1372 (4th Cir.1979). That requirement certainly makes sense considering the significant changes an agency could effect under the guise of interpretations.3 The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1982 & Supp.1985), imposes restraints on an agency’s authority to make such changes. Section 552(a) provides that an agency interpretation of general application shall not be binding unless it is published in the Federal Register. 5 U.S.C. § 552(a)(1)(D) (1982). Likewise, section 552(a) provides in part that
A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if [it has been *451indexed and published or a party has actual and timely notice of its terms.]
5 U.S.C. § 552(a)(2)(C) (1982). While the relationship between these provisions under section 552 and the deference rule is not fully developed, these APA sections nevertheless illustrate the problems inherent in agency attempts to establish interpretation by intervening in litigation. There is no notice to affected members of the public that a regulation is to be interpreted in a new or controversial way. Logic and principle dictate that an agency’s interpretative action be undertaken with some formal dignity.
It is true that an agency acting in the capacity of an adjudicator is usually allowed to initially interpret its regulations during the adjudication of the rights affected by the agency action. That is quite different, however, from the agency acting as a party litigant offering its litigation position for the first time as the official interpretation of the regulation in issue. This is precisely what happened here.4 I hesitate to extend the concept of deference so as to permit any agency in such a posture effectively to resolve appeals by its own actions. This would abdicate much of the responsibility for appellate review of federal administrative agencies to the agencies for self review. I do not think Bowles contemplates such a result. Rather, agencies should be able to present their views in persuasive efforts but should only be able to present them as settled law if idle interpretations have been previously and consistently applied.
Therefore, we should interpret the regulation under review either from its plain meaning or by utilizing rules of statutory construction including rules relating to the documented intent of the drafters.
II.
I agree with my colleagues that the meaning of the regulation is not facially obvious. It is appropriate, therefore, to examine other sources including the statute and its legislative history for assistance in discerning its meaning. If we were to accept Judge Phillips’ view of deference, we would look to see if the Director’s interpretation is contrary to the statute. Accepting my view, it is helpful to look at the statute and its legislative history because they had a direct bearing on the substance of the regulation. Thus under either approach, it is necessary to examine the statute and, due to its complexity, its legislative history. An examination of legislative history is particularly appropriate here because the circumstances surrounding the drafting and promulgation of the interim presumption regulation represent an unusual turn in administrative law. Contrary to the usual interpretative posture, agency intent here can be inferred directly from congressional action because congressional staff worked directly with the Labor Department to tailor the final version of the interim presumption.5 The tailoring was *452detailed. Importantly, in this process congressional staff struck from preliminary drafts of the regulation a proposed provision requiring the weighing of all medical test evidence to invoke the presumption. Solomons, supra note 5, at 896 n. 138. Additionally, the Labor Department would have triggered the presumption with fifteen years mine employment. Congressional staff reduced the minimum service to ten years. Id. With or without deference to the Director’s position, then, the statute and Congressional intent in drafting it is a focal point of this appeal.
Turning now to the regulation, the starting point for determining its meaning is the language itself. Section 727.203 provides:
§ 727.203 Interim presumption
(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be due to pneumoconiosis, arising out of that employment, if one of the following medical requirements is met:
(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis ...;
(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in § 410.412(a)(2) of this title) as demonstrated by values which are equal to or less than [certain values specified in the regulation’s tables;]
(3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values which are equal to or less than [certain values specified in the regulation’s tables;]
(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment; ...
(b) Rebuttal of interim presumption. In adjudicating a claim under this sub-part, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if:
(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work ...; or
(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work ...; or
(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or
(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.
20 C.F.R. § 727.203 (1985).
The Secretary designed section 203(a) to give the coal miner the liberal advantages mandated by Congress, and section 203(b) to preserve to the mine employer its rights by rebuttal to present all probative evi*453dence relative to its defense of the claim. It is difficult to consider the meaning of section 203(a) without considering section 203(b) because they were designed as integral parts of one scheme. The Director’s position on the meaning of section 203(a) varies crucially from Judge Hall’s interpretation in which I enthusiastically join. There is, however, virtually no difference between our opinion concerning the meaning of section 203(b) and the interpretation placed on that subsection by the Director on this appeal. Moreover, Judge Phillips’ opinion seriously misinterprets the Director’s briefed interpretation of section 203(b) — further complicating our holdings. In sum I agree with Judge Hall that a claimant, to invoke the presumptions provided by section 203(a), must only produce one positive x-ray, one positive pulmonary function test, one positive blood gas study, or one reasoned medical opinion. I believe that the Director’s position requiring proof of the invoking presumption by a preponderance of the evidence is not only erroneous under an interpretation of the regulation’s language, but that it is contrary to the Congressional authority delegated to the Secretary of Labor to promulgate this regulation. In my opinion, however, Judge Hall’s opinion concerning the meaning of section 203(b) is essentially the same as that advanced by the Director. The interpretation of section 203(b) espoused by Judge Phillips is contrary to the position of all parties to this appeal, including the Director.
The relevance of section 203(a)’s language was succinctly explored by Judge Hall and announced in a way that presents a useful tool for the statute’s future utilization. On the other hand, Judge Phillips’ attempt to universalize language designed to cover one specific social problem confuses the issue. The unique juxtoposition of concepts faced by the drafters of section 203(a) provides lively ammunition for academic exercise, but it seems to me that there is sufficient challenge in the more focused task of determining what the regulation means in light of the social ill it attempts to rectify. I find the straightforward meaning attributed to the language by Judge Hall ideal ior this purpose.
Judge Phillips, however, postulates that all x-rays must be weighed by the factfinder and the presumption only triggered if, in his opinion, a preponderance of the x-ray evidence proves pneumoconiosis. If the pulmonary function, blood gas or reasoned medical opinion category is used to invoke the presumption, it must be proven to the factfinder’s satisfaction that all of the evidence in that category preponderates, proving that the claimant has either pneumoconiosis or a totally disabling respiratory or pulmonary impairment.6
Congressional direction aside, Judge Phillips’ conclusion that a triggering or invoking category must be proven by a preponderance of the evidence misconstrues both the language of the regulation and the nature of the presumption. The most striking example of this is the conclusion that section 203(a)(1) requires a trier of fact to weigh all x-rays and find from a preponderance of x-ray evidence that a claimant has pneumoconiosis before triggering a presumption that he is afflicted with the disease.7
The language could not be clearer.
(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least ten years will be presumed to be totally disabled due to pneumoconiosis____ if one of the following medical requirements is met:
(1) A chest roentgenogram (x-ray), biopsy, or autopsy establishes the existence of pneumoconiosis____
20 C.F.R. § 727.203 (emphasis supplied).
It is easy to fault legislative draftmanship, but if, as Judge Hall would hold, the *454drafters of this regulation intended only one x-ray to trigger the presumption, I cannot think of a better or simpler way of saying it. On the other hand, to hold that the drafters intended a preponderance standard to apply would be to accept section 203(a)(1) as an example of intolerable drafting.
With all respect, I feel that Judge Phillips’ extrapolation of his section 203(a) “preponderance” requirement in paragraph 4 of part II of his opinion disproves rather than establishes the validity of his theory. He reiterates that a presumption would be triggered vel non by weighing all of the x-ray evidence under section 203(a)(1) and deciding from a preponderance of that evidence whether the claimant was proven to have pneumoconiosis. If he is proven to have pneumoconiosis and has ten years of coal mine employment, then he is entitled to the benefit of the presumption. According to this theory, the coal mine employer may then defend under only three rebuttal provisions of section 203(b) instead of all four, i.e., (1) doing his usual coal mine work, (2) is able to do his usual work, or (3) disability not caused by coal mine work. The employer may not defend on the basis of section 203(b)(4) that he does not have pneumoconiosis because pneumoconiosis has already been proven by a preponderance of the x-ray evidence at the invocation stage.
In the same vein, Judge Phillips concludes that once the presumption is invoked under section 203(a)(4) (“other medical evidence” of a totally disabling respiratory or pulmonary impairment) the employer is entitled to defend under section 203(b)(3) not caused by employment and (4) does not have pneumoconiosis but cannot rely on section 203(b)(1) working in coal mine or (2) able to work in coal mine.
One problem with that syllogistic formulation is that it is internally inconsistent. Judge Phillips would eliminate the regulation's allowance of rebuttal possibilities (b)(1) and (b)(2) when the presumption had been invoked by section 203(a)(4) because if a miner is totally disabled, he is unable to work. By the same token, however, if a miner has proven that he has pneumoconiosis by x-ray, he is, by virtue of ten years of coal mine employment, presumed to be totally disabled and equally unable to work. To be consistent then, once a claimant proves pneumoconiosis by x-ray at the invocation stage, the employer should be stripped of three of his defenses and could rely only on section 203(b)(3).8
*455The section 203(a) “preponderance” theory espoused by Judge Phillips, moreover, is inconsistent in a more direct sense. Again, the extrapolation in paragraph 4 of Part II of his opinion illustrates the problem. The Secretary, at the prodding of Congress, designed a proof scheme which corrected perceived inequities suffered by claimants by providing them with evidentiary advantages. The regulation preserved, as constitutionally required, the right of the private party employer to defend claims, albeit from a restructured evidentiary scheme.9 There is no indication that what were created are highly sophisticated presumptions or that they came to fruition only after long metaphysical introspection by their designers. They are simply presumptions designed to accomplish two basic purposes. The first is to compensate for the deficiency of traditional evidentiary rules, under which it was not always possible to accurately portray pneumonconiosis. The second is to switch the burden of proof to the defendant employer so as to make it easier for miners to receive benefits. The Director’s litigation position, which Judge Phillips adopts, would turn this design on its head. As Judge Phillips concedes, if a weighing of the x-rays at the presumption-invoking. stage would prove the existence of pneumoconiosis, that part of the proof scheme could not be disproved on rebuttal. Similarly, once total respiratory disability is proved in invoking the presumption, it cannot be disproved on rebuttal. That result is simply impossible to square with the thoughtfully created design of the regulation, which requires the erection of a presumption only in the first (section 203(a)) stage but unconditionally allows the employer to rebut the presumption under the second (section 203(b)) stage. The structuring of section 203 into two parts clearly contemplates that any ultimate proving is to be accomplished only in the second (section 203(b)) stage.
A presumption, whether you view it as evidence or as a consequence of evidence, is not ultimate proof. It is part of the equation that results in ultimate proof. Assuming there is rebuttal evidence, the ultimate proof under the section 203 scheme is decided in the rebuttal stage. Nothing could be clearer. To require ultimate proof in the invocation stage not only shifts the burden of proof, placing it on the claimant, but enmeshes in frustration the defenses allotted to the employer. The regulation allows the employer to defend on four basic grounds. Judge Phillips’ theory could reduce these to only two grounds.10
*456Judge Phillips asserts that the Director’s briefed position does not offend “known patterns of presumptions.” The truth is that there is very little pattern to presumptions generally.11 Nothing in the general nature of presumptions provides clues as to whether a particular presumption can be invoked by the production of a single basic or operative fact or whether a number of such facts must be weighed under a preponderance standard in order to get the presumption’s benefit. That determination is often inherent to the field of law to which the presumption is attached. It is certainly inherent to the subject matter which it affects.12 In any event, if any legal tool can be said always to operate sui generis, it is the much varied presumption. Here, Congress exhaustively examined the reasons for establishing the presumptions. *457Congress instructed the Social Security Administration generally and the Labor Department specifically concerning the basis of the regulation establishing the presumption. Generally, the substantive law to which it is attached will provide some clues as to how a presumption operates. Here, Congress not only created the substantive law but labored long to instruct the agencies on its procedural application.
The Black Lung Act was a response to many congressional concerns. The language is correspondingly complicated. In my opinion, the structuring of section 203 into a presumption subsection and a rebuttal subsection, together with the wording and purpose of section 203(a), establishes that the presumptions may be invoked with one positive x-ray, etc. The fact that the Social Security Administration and the Department of Labor designed this regulation by direct command and under the supervision of Congress, makes this conclusion more certain.
The final actions in drafting the regulation, moreover, were not accidental or even spontaneous. They resulted from years of efforts by Congress to make sure that the SSA and Labor Department promulgated specifically oriented regulations. Although the original Black Lung Bill as Title IV to the Coal Mine Safety Act of 1969 passed the Senate by a vote of 93-0, most of its subsequent amendments were passed only after months of congressional investigation, weeks of hearings, and detailed debate. The majority left no doubt as to their position on the controversial provisions which were the forerunners of the regulatory language at issue on this appeal.
With all respect, I think Judge Phillips and some of the parties fail to recognize the extraordinary steps taken by the authors and supporters of the legislation to assure agency regulation fit to congressional intent. Parties to this appeal, for example, contend that the interpretation adopted by Judge Hall would give coal miners advantages possessed by no other industrial workers. Much of the dissatisfaction expressed by Judge Phillips is based on the rationale that the system of proof as recognized by Judge Hall tilts the traditional burdens of proof. Certainly the system has that effect. Congress, however, specifically decreed those results. Moreover, “the Black Lung Act was not pressed into the hands of Congress by an outgoing administration ... or the United Mine Workers of America, but was initiated and conceived by Congress itself.” 5 Coal Law and Regulation 100-5 to -6 (P. McGinley & D. Vish ed. 1985). Congress was concerned that this social problem had been neglected for over a century and its actions demonstrate its intention that the administrative agencies in charge of the program act with extraordinary dispatch.
Testimony before the Senate Labor and Public Welfare Committee summarized a grim report from the U.S. Public Health Service. During the Senate debate on the 1969 Act, Senator Javits included in the record of the debate an excerpt of that testimony:
... in 1950, American coal miners died at nearly twice the rate of other workers; diseases of the respiratory system killed miners at a rate five times greater than the general working male population; and the mortality rate for American coal miners was roughly twice those reported for British coal miners.
Senate Subcomm. on Labor, Comm, on Labor and Public Welfare, 94th Cong., 1st Session, Legislative History of the Federal Coal Mine Health and Safety Act of 1969 (Public Law 91-173) As Amended Through 197) Including Black Lung Amendments of 1972 (Comm. Print Aug. 1975) [hereinafter cited as 1975 Legislative History ], at 523.
Senators and House members expressed their feelings of shock and concern at these and similar grisly statistics. E.g., remarks of Senator McGee, id. at 580; remarks of House Education and Labor Committee Chairman Perkins, id. at 1279. Senator Javits said: “[TJhis [black lung amendment] is an unusual and dramatic proposal — but it is directed at an unusual and *458dramatic problem — our sublime insensitivity to what is probably the worst occupational disease in the country — black lung.” Id. at 522.
From the time Title IV, dealing with black lung, was added to the Coal Mine Health and Safety Act, it was obvious the Congress felt that this legislation was unique in practically every respect — never before or since has Congress chosen a single occupational disease or for that matter a single industry for specialized federal treatment and compensated its victims despite the fact that industrial side effects from other occupations have been devastating to other groups of Americans. H.R. Rep. No. 770, 94th Cong., 1st Sess. 89 (1975) (minority views); See Solomons, supra note 5, at 914-15. This is the congressional and regulatory atmosphere which generated the regulations. Congress was determined to compensate black lung victims in a specific way, and to motivate the removal of any administrative obstacle impeding that intention. See Solomons, supra note 5, at 884-95, 915.
Although the regulation, the meaning of which now divides our court, is a regulation promulated by the Secretary of Labor as the congressionally delegated administrator of the program, it originated as an interim regulation of the Social Security Administration when that agency administered the program. In the initial period of administration, few black lung claims were approved. Solomons, supra note 5, at 873. Members of both Houses intervened to speed processing and greatly increase the percentages of claim approvals over claim denials.13 The Social Security Administration and subsequently the Labor Department responded to these congressional initiatives, both by implementing new general policies, and by enacting specific regulations and procedures. Senators Byrd, Randolph, Javits, Taft and Williams, and Congressmen Perkins, Dent, and Flood, were not only actively shepherding the legislation and its various amendments through Congress, but were looking directly at the agencies charged by Congress with the program’s administration. The entirely unique impetus given all of the black lung legislation was due for the most part to the converging circumstances whereby leading legislators of both Houses of Congress were specifically interested not only in the statutory provisions but the manner in which benefit claims were administered. Solomons, supra note 5, at 876, 915.
Against this background, Congress undertook, through hearings and legislative debate, to examine the reasons claims were being denied in numbers it thought to be excessive. The congressional inquiries were detailed and concentrated on the proof schemes utilized first by the Social Security Administration and later by the Department of Labor. The hearings produced criticism of a number of evidentiary rules and adjudicatory procedures. The denial of claims on the basis of x-rays, pulmonary function tests and blood gas studies, which were thought not to provide a sufficiently reliable basis for denying claims, received the greatest congressional scrutiny.
Floor debates in both the House and Senate over a several year period demonstrate the depth and detail of Congressional interest in this specific aspect of the program. Remarks by Senator Taft and Congressman Perkins were illustrative. During consideration of the 1972 Amendments, Senator Taft said:
[It] is clear that a negative x-ray does not establish the absence of pneumoconiosis. Autopsies of coal miners indicate that pneumoconiosis does exist in a great number of cases where the chest X-ray was negative. Testimony has indicated that there is an error factor of approximately 25 percent in diagnosis when the X-ray alone is used.
1975 Legislative History at 2019-20. In 1976, during House consideration of the *459precursor to the legislation which became the 1977 amendments, Chairman Perkins said:
Unfortunately, the state of medical knowledge as to the diagnosis of black lung is such that often it cannot be determined until an autopsy has been performed. Not all lungs response [sic] in the same fashion to the inhalation of dust particles. Some whose lung X-rays clearly evidence the disease to a disabling extent do not appear to be disabled. The lungs of others with a long history of service in an underground coal mine produce only inconclusive X-ray findings yet manifest obvious respiratory difficulties and render such miners unemployable.
House Comm, on Education and Labor, 96th Cong., 1st Sess. Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 1977 (Comm. Print Feb. 1979) [hereinafter cited as “Legislative History of 1977 Act ”], at 231 (Statement of Chairman Perkins during Floor debate on H.R. 10760, 94th Cong., 2d Sess. (1976)).
These opinions were based on committee testimony received during extensive hearings. In hearings of the House Education and Labor Committee prior to consideration of H.R. 10760, the Committee had heard the following testimony:
Finally, the reliance upon a negative result of a blood gas study to exclude disability, which is what I under stand the language of the bill is, is unwise. This would tend to exclude the man who has moderately severe obstructive impairment of his ventilatory capacity but who maintains relatively normal arterial blood gases; such a situation occurs rather frequently in emphysema.
Bills To Revise the Black Lung Benefits Program: Hearings on H.R. 7, H.R. 8, and H.R. 3333 Before the Subcomm. on Labor Standards of the House Comm, on Education and Labor, 94th Cong., 1st Sess. 107 (1975) [hereinafter cited as “1975 Hearings ”] (statement of Dr. Leroy Lapp, West Virginia Medical Center). Dr. Lapp also testified that there was no type of medical examination that would positively say whether a claimant is entitled or not entitled to benefits. Id. at 110.
In the report accompanying the 1977 amendments, the House Education & Labor Committee stated:
Other diagnostic tools for determination of eligibility on a case-by-case basis are similarly limited. The lung function tests have shown impairment of lung function but impairment by this test has been slight and results vary widely. Lung function tests measure only the person’s ability to move air in and out of their lungs and do not measure the basic function of the lung____ Other diagnostic tools ... are inadequate for other reasons.
H.R.Rep. No. 151, 95th Cong., 1st Sess. 32 (1977), U.S.Code Cong. & Admin.News 1978, 237, 268.
A number of other medical witnesses testified that respiratory diagnostic tools simply were not as effective in the presence of pneumoconiosis as they were in other respiratory diseases. The general medical consensus was that disability determinations could only be developed from a total assessment of a miner’s medical condition, particularly by physicians who were familiar with the patients over a period of time. Finally, several congressmen announced that their positions were influenced by a random survey which showed that the autopsies of two hundred deceased coal miners revealed presence of pneumoconiosis in twenty-five percent of them even though x-rays contained in their medical records were negative for the disease. 1975 Legislative History at 2020-21 (statement of Senator Taft), 2069 (statement of Senator Spong).
Amidst congressional admonitions and directions, the Social Security Administration promulgated the interim regulation which was the direct predecessor to 20 C.F.R. 727.203 — the Labor Department regulation now under review. The Social Security Administration designed and issued the regulation in response to severe congressional criticisms that although positive x-*460rays, pulmonary function tests, and blood gas studies were probative of pneumoconiosis in some form, negative results of those tests were not necessarily probative of an absence of pneumoconiosis. Congressmen referred to numerous medical opinions and statistical surveys to that effect.
In the 1977 amendments, Congress, in assigning the administration of Part C claims to the Department of Labor, gave that agency authority to promulgate regulations, but at the same time circumscribed the authority with statutory directions. It instructed the agency on how to structure its regulations in several specifics, including a mandate that regulations governing Part C claims:
shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor.
30 U.S.C. § 902(2) (1982). The House of Representatives Education and Labor Committee in reporting the bill noted that the Part C interim presumption could be more liberal but not more conservative than the then existing interim presumptions. H.R. Rep. No. 151, 95th Cong., 1st Sess. 41 (1977). In enacting section 402(f) with the “no more restrictive language” Congress was, of course, aware of its own studies, its admonitions to the Social Security Administration and the Labor Department, the circumstances and reasoning of the Social Security Administration and existing case law. E.g., Prokes v. Mathews, 559 F.2d 1057 (6th Cir.1977); Bozwich v. Mathews, 558 F.2d 475 (8th Cir.1977); Henson v. Weinberger, 548 F.2d 695 (7th Cir.1977); Ansel v. Weinberger, 529 F.2d 304 (6th Cir.1976). Lacking confidence that the Department would respond even to all of that, Congressional staff worked directly with the Department in shaping the regulation to Congressional intention. See Solomons, supra note 5, at 896-97.
Establishing a positive x-ray, pulmonary function, or blood gas study, of course, is only one-half the requirement for triggering the presumption — the claimant also must have worked in a coal mine for at least ten years. Contrary to Judge Phillips’ view, it is the combination of the ten-year employment and a positive test result that triggers the presumptions. At the same time Congress was investigating the failure of traditional evidentiary rules to function properly in black lung claim resolution, it was investigating the effect of the period of exposure on the probability that a coal miner suffered from pneumoconiosis, and found a demonstrable causal relationship with all three elements of a claim.14 *461The ten-year employment period was legislatively conceived to be some indication of disability, its severity and causation — some evidence that the miner not only had pneumoconiosis, but that it was disabling and caused by his coal mine employment.
Seining these murky waters is by no means simple, but I think the language and structure of the regulation, the subject matter it regulates, the legislative and administrative concerns prompting the regulation — all point to one meaning — that the presumption can be invoked by establishing a single positive x-ray, pulmonary function test, blood gas studies, or other reasoned medical opinion.
III.
Judge Hall’s opinion, in resolving the second major issue of this appeal, adheres to this court’s holding in Whicker v. United States Department of Labor Benefits Review Board, 733 F.2d 346 (4th Cir.1984). Both Whicker and Hampton v. United States Department of Labor Benefits Review Board, 678 F.2d 506 (4th Cir.1982), upon which Whicker was primarily based, were “rebuttal” cases — that is, they decided issues arising under section 203(b). As Judge Hall correctly notes, Whicker held that evidence consisting of a doctor’s report based solely or principally upon negative x-rays, pulmonary studies or blood gas studies, is not sufficient to rebut a presumption invoked under section 203(a)(1)-(3). Although none of the parties to this appeal, including the Director, can find much fault with the Whicker holding, Judge Phillips and Judge Widener single out the panel action there as the root cause of what they conceive to be confusion.
Judge Phillips notes initially in this context that his disagreement with Whicker is separate and apart from any deference owed to the Director’s position. This distinction might well be necessary in order to sustain Judge Phillips’ reasoning. The Director’s interpretation is virtually an adoption of the Whicker reasoning, and Judge Hall’s position is essentially identical to that advocated by the Director, and, for that matter, the coal mine employers who are parties to this appeal. I do not feel that we are under the Bowles constraint requiring deference to the position of the Director, which he advances in his appellate brief. Judge Phillips, however, does. Consequently, I do not understand how he bases the section 203(a) part of his opinion largely on the deference owed to the Director’s position, yet espouses a section 203(b) position squarely contrary to the Director’s briefed interpretation. It may well be that Judge Hall and Judge Phillips simply interpret the Director’s “Whicker” interpretation in different ways. I find the Director’s position straightforward. To guard against missing something, however, I quote extensively from the only source expressing the Director’s position — his brief. It is as follows:
THE DOCUMENTED OPINION OF A PHYSICIAN EXERCISING REASONED MEDICAL JUDGMENT, OFFERED TO REBUT A PRESUMPTION OF DISABILITY UNDER 20 C.F.R. 727.203(b), MAY BE BASED IN PART ON THE RESULTS OF TESTS THAT DO NOT QUALIFY TO INVOKE THE PRESUMPTION.
This court held in Whicker v. U.S. Department of Labor, supra, 733 F.2d 346 (4th Cir.1984), that a party attempting to *462rebut the interim presumption by showing that the miner is not in fact disabled under 20 C.F.R. 727.203(b)(1), (2) or that the miner’s disability was not caused, even in part, by coal mine employment under 20 C.F.R. 727.203(b)(3), (4) may utilize test results that do not qualify to invoke the presumption as long as these results are not used “as the principal or exclusive means of rebutting [the] interim presumption.” Id. at 349. The Director agrees with this court that non-qualifying test results, standing alone, cannot rebut a presumption. As this court has observed, such a rule would thwart the evidentiary burdens imposed by the presumption by “effectively forc[ing] the claimant to come forward with proof of pneumoconiosis by two or more accepted testing techniques before he could derive any practical benefit from the interim presumption — a burden totally incompatible with the language and pruposes of the applicable regulations." [citations omitted] 13
Although the Director thus agrees with the panel’s conclusion in Hampton, supra, 678 F.2d at 508, that “[o]nce the presumption arises, the miner’s failure to satisfy the remaining tests does not rebut [it]”, the Director disagrees with Hampton’s further holding that a doctor’s opinion may not be based in part upon nonqualifying tests. Ibid. That further holding is incompatible with the express dicates [sic] of the statute and regulations, which mandate that all probative evidence be weighed in determining whether a presumption of disability is rebutted. Thus, Section 413(b) of the Act, 30 U.S.C. (Supp. V) 923(b), provides that “all relevant evidence shall be considered [by the fact-finder], including ... medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests.” The presumption itself further states that “all relevant medical evidence shall be considered” in rebuttal. 20 C.F.R. 727.203(b). Moreover, this express statutory and regulatory requirement accords with the applicable provisions of the APA, 5 U.S.C. 554, 556, 557, which require the fact-finder to receive relevant evidence and to consider it absent an express statutory direction to do otherwise.
In Whicker, supra, and in Director, OWCP v. Beatrice Pocahontas Co., 698 F.3d [sic] 680, 682 (4th Cir.1983), this court correctly recognized that non-qualifying test results are highly probative when utilized in the proper context, as documentation for the opinion of a physician exercising reasoned medical judgment. Properly utilized and interpreted, non-qualifying test results serve as critical diagnostic tools. When a physician performs a physical examination, ventilatory function and arterial blood gas tests provide significant information regarding the individual’s pulmonary status; other tests, such as an electrocardiogram or a physical performance test, enable the physician to diagnose other conditions, rule out black lung disease as a source of disability, or support a reasoned opinion that the individual has no condition of any medical significance. A physician must be allowed to rely on ventilatory function and arterial blood gas test results, in conjunction with his other findings, in assessing whether or not an individual is disabled and if disabled, the degree and cause of the condition. Thus, the ventilatory function and arterial blood gas tests, together with a chest X-ray, provide the physician with the most important and reliable information relevant to a pulmonary evaluation.
*463Brief for the Director, Office of Workers’ Compensation Programs at 25-28 (emphasis added) (footnotes omitted except for footnote 13). The Director concluded by stating:
As this court recognized in Whicker, negative test results, properly interpreted and utilized in the context of a thorough medical evaluation, constitute probative evidence and must be weighed with all other probative evidence by the fact-finder.
Id. at 30 (emphasis added). Counsel for Mullins Coal Company tellingly makes essentially the same point. He states:
What is pertinent evidence on invocation may not necessarily be pertinent on rebuttal. For example raw uninterpreted pulmonary function scores, i.e. the numbers alone, convey little rebuttal information. They may, however, indicate that a burden of proof shift is appropriate because they meet table values. The same may be true for uninterpreted blood gas scores. This is the case with respect to pulmonary and blood gas studies because the results of these studies as a medical matter cannot, absent other medical data, tell anyone whether the miner has black lung or identify the cause of an impairment, or, for that matter detect the reason for a disability.
The raw test scores which were relevant to invocation now have meaning only to the extent that a physician is able to attribute meaning to them. The x-rays have meaning but they cannot be conclusive. Again many other factors and physicians’ views must be weighed with the x-ray. The reports will have significance on rebuttal but by placing them in the invocation portion the Secretary of Labor has simply given claimant’s another basis for invocation and thus a benefit not available in Part B (20 C.F.R. § 410.490).
Supplemental Brief for Mullins Coal Co. at 24-28. Likewise, counsel for Westmoreland Coal Company and Jewel Ridge Coal Corporation stated:
The employers acknowledge that a ventilatory study or a blood gas study is not legally sufficient to rebut the presumption based principally or exclusively upon the fact that it is nonqualifying under the interim presumption.
Supplemental Brief for Westmoreland Coal Co. and Jewell Ridge Coal Corp. at 24. They further quoted with approval from the decision of the Benefits Review Board in Daniel v. Westmoreland Coal Co., 5 BLR 1-196 (1982):
It is not the non-qualifying nature of the pulmonary function and blood gas tests which prompts the doctor’s conclusion of no disability, or which the Board finds to be substantial evidence to rebut. (Indeed, in Sykes, supra, the Board made it clear that non-qualifying blood gas studies and/or pulmonary function studies alone would never be sufficient to rebut the presumption.) Rather, it is the doctor’s expert medical opinion as to what the test values reveal regarding claimant’s degree of respiratory impairment which may constitute substantial evidence to rebut. Such tests, as well as other medical data, provide documentation to support a reasoned medical opinion.
Id. at 26-27 (quoting Daniel, 5 BLR at 1-204). Counsel for Westmoreland and Jewel Ridge concluded by stating:
Under these decisions of the various Circuit Courts and the precedents of the Benefits Review Board, none of the following are sufficient to rebut the presumption in and of themselves: a ventilatory or blood gas study with reported results which is not otherwise interpreted by a physician; a physician’s opinion that a coal miner is not disabled by lung disease because his performance on ventilatory or blood gas studies • is better than that described in the tables of the interim presumption; or, most obviously, an opinion by a physician that the results of ventilatory or blood gas studies indicate a severe pulmonary impairment but the miner is nonetheless not disabled from his regular employment because *464the values are better than those set forth in the tables of the interim presumption. Each of the described variations is insufficient for rebuttal because the evidence relates to a purely legal issue which is meaningful only for invocation, rather than to the medical issue which must be addressed for purposes of rebuttal — whether the individual retains the pulmonary capability to perform his regular coal mine work.
Id. at 27-28 (emphasis added).
Two of the same members of this court were on the three-judge panels in both Director v. Beatrice Pocahontas Co., 698 F.2d 680 (4th Cir.1983) and Whicker. In Beatrice we held that a presumption invoked on the basis of x-ray evidence was properly rebutted by medical evidence showing the claimant was able to do coal mine work. Two physicians conducted an examination of the claimant which included x-ray analysis, pulmonary function tests, and blood gas studies. These tests proved negative. In Whicker, the rebuttal evidence was simply a report relying principally on nonqualifying pulmonary function tests and blood gas studies. We held that evidence to be insufficient. There were no expressed disagreements to either opinion.
Perhaps, as Judge Phillips points out, the qualifying word “principally” in Whicker, in instances may be confusing. These litigants in this case, however, have exhibited no difficulty in understanding it or securing evidence where available to meet the Whicker standard. Be that as it may, I understand Whicker and Beatrice to mean the same thing as the Director indicated in his briefed position. The employer parties to this. litigation have indicated a similar understanding. Likewise, I can read Judge Hall’s opinion in no other way. On the other hand, I find it difficult to recognize the rationale of Whicker and Beatrice in the parade of horribles which Judge Phillips advances as the consequences of Whicker. Hampton, Whicker, and Beatrice, like most black lung opinions, are short opinions, and for that reason a number of things could be read into them. To make my position clear, however, my agreement with Judge Hall on this point is based on his clear statement that all medical evidence can be utilized in section 203(b) defenses by a coal mine employer, including negative x-rays, pulmonary function tests and blood gas studies. They cannot, however, be used alone nor can raw test numbers have any probative effect unless they are related to the claimant’s physical condition by medical documentation sufficient to show that the tests have probative validity. We cannot in one opinion solve all cases for all time. An administrative law judge must determine initially whether the evidence is sufficient in each instance. That is no more an exotic task than our obligation to review under the substantial evidence standard. It may be in given cases such as Beatrice that reasoned medical opinions analyzing the x-rays or raw tests results may be sufficient. Whether they are or not, however, should depend on their probative quality in shedding light on the condition of an individual claimant’s respiratory system.
These are the same conclusions reached by the committees of Congress studying thousands of cases involving determination of disabilities by x-rays, pulmonary function tests, and blood gas studies. The consensus of practically all of the medical experts testifying before congressional committees was that each of these tests, if properly administered, might have some relevance, but that negative results standing alone have little or no probative value. Their findings suggested a discriminating use of all the tests, but would permit reliance on them as evidence only when each test is appropriately examined, explained and made relevant as part of an overall medical examination of a claimant. Congress understood this, the administrators of the programs understood this when they wrote the regulations, and the well-written briefs of the Director and the employers in this case demonstrate that they understand it as well.
I am authorized to say that HARRISON L. WINTER, K.K. HALL, and SNEEDEN, JJ., join in this opinion.
. The Secretary of Labor is the delegated authority to administer the relevant portion of the Black Lung Program and he promulgated the regulations which we now review. The Director of the Department’s Workers' Compensation Program is the Secretary's designated administrator.
. Weaver, Judicial Interpretation of Administrative Regulations: The Deference Rule, 45 U.Pitt. L.Rev. 587 (1984). The author states:
The Supreme Court has never acknowledged the fact that it has created multiple deference standards. Instead, when it wants to apply the deference rule, it simply chooses one of the deference standards and acts as if that one is the only standard. Thus, the Court never explains either why it has chosen one standard over another or when each should be applied. The Court has indicated that the "demonstrably irrational" standard, a controlling standard, is of limited applicability. However, it appears to treat the "plainly erroneous" standard as generally applicable, even though it is also controlling, and it gives an administrative interpretation as much deference as the “demonstrably irrational” standard. Furthermore, the Court has not indicated when the “plainly erroneous” standard should be applied as opposed to the "reasonable, consistently applied” standard, or some non-controlling one such as the “greatest weight,” "deference,” and "respect" standards. Each of these latter standards appears to be generally applicable.
Id. at 595. (emphasis in original) (footnotes omitted).
. Weaver has observed:
Political considerations may also discourage an agency from interpreting its regulations consistently and fairly. Often a regulation is promulgated by an agency under one presidential administration and then interpreted by that agency under a subsequent administration. If the regulatory philosophy of the later administration differs from that of the promulgating administration, an agency may alter its interpretation of its regulations. Such shifts in regulatory philosophies are not uncommon. Evidence of alternating political philosophies appears in the transition from the Johnson administration to the Nixon, Ford, Carter, and Reagan administrations. Without drawing any conclusions about the desirability of any particular regulatory philosophy, the fact remains that agencies will change their interpretations of regulations over time.
Weaver, The Deference Rule, supra note 2, at 612-13 (footnotes omitted).
. In this case, we granted the Director’s motion to intervene. There is a question in my mind, however, whether such motion is necessary because he may have standing as a matter of right in every appeal. The Act provides: ”[t]he Secretary shall be a party in any proceeding relative to a claim for benefits under part (C).’’ 30 U.S.C. § 932(k) (1982). See Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding and Dry Dock Co., 676 F.2d 110, 113-14 (4th Cir.1982).
. Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of Its Unresolved Issues, 83 W.Va.L.Rev. 869 (1981). The author states:
The final draft of the Labor Department’s regulations were approved within the Department and, prior to publication, sent to selected congressional staff members for review and presumably for approval. These regulations were reviewed by both congressional staff and professional persons associated with the various black lung associations. As a result of this initial review, the Department’s proposed "interim presumption,” after close scrutiny, was severely criticized. Other parts of the regulations were also criticized, thus failing to win the approval of those reviewing the proposal.
Id. at 896. In particular, Solomons notes:
One of the proposed sections would have prohibited the approval of a claim unless the file demonstrated that a full series of medical tests had been conducted. The Black Lung Association and congressional staff objected strenuously and the section was removed.
*452Another provision would have required the adjudicator to weigh all the medical test evidence to determine whether the weight of this evidence established total disability. This too was stricken by congressional command. One very important section in the draft attempted to clarify the confusion over whether qualifying pulmonary function studies would invoke the interim presumption with 15 or 10 years of coal mine employment. The SSA presumption seemed to require 15 years but in practice SSA awarded benefits with qualifying pulmonary function scores and 10 years. The draft Labor presumption required 15 years.
The clarification was also vetoed by the group in favor of the SSA practice of using 10 years for this purpose.
Id. at 896 n. 138 (emphasis supplied). Finally, Solomons observes:
In light of the severe criticism evoked by these proposed regulations, the Department of Labor sought to formulate more acceptable regulations. This was accomplished and the new interim standards were published as a proposal on April 25, 1978.
Id. at 897. Mr. Solomons was counsel for the involved Labor Department Branch from 1973-1978 when the regulation was drafted.
. The Labor Department’s proposed regulation would have included a similar requirement for weighing, but this provision was stricken at the insistence of congressional staff. Solomons, supra note 5. '
. Judge Phillips' conclusions as to § 203(a)(2) and (3) are equally erroneous. My reasoning in Consolidation Coal Co. v. Sanati, 713 F.2d 480, 483 (4th Cir.1983) (Sprouse, dissenting), was also erroneous in this respect. I am well persuaded by Judge Hall’s reasoning on page 432 ot his opinion.
. I recognize Judge Phillips' sua sponte division of the presumptions as explained in the text of his opinion and in his footnote 5. No one could disagree that the fundamental nature of a presumption .presupposes facts upon which the presumption is to be based and the presumed effect whether it be a presumed legal effect or a presumed factual effect. I, like Judge Hall, simply cannot agree, however, that a presumption can be split into operating on basic facts on the one hand and presumed facts on the other in such a manner as to defeat the purpose of the presumption. This can be done easily with any presumption as Judge Phillips has done by simply assigning attributes to the basic facts which were not conceived by the designers of the presumption. In the first place, I do not recognize this subdivision of the presumption regulation as the position of the Director or of any party. It is certainly not to be found in any of the regulatory language nor in the Director's interpretation contained in his brief. A proper function of a court, to be sure, may be to devise new ways to solve old problems and I do not quarrel with that. In this instance, however, I feel it contravenes the meaning of the statute directing the Department of Labor to design these regulations and the intention of the Director in designing them. As I indicate, infra, the fact of ten years or more employment was considered to be probative of the presence of pneumoconiosis, its disabling effect, and its coal mine causation. The showing of pneumoconiosis or a total respiratory disability by the means expressed in § 203(a)( 1) — (4) also was meant to be probative of but not proof of coal mine related, totally disabling pneumoconiosis. Neither this triggering data nor a combination of such data is irrebutable because it is emphatically provided that the combined effect is to raise a presumption which can be rebutted by utilizing all relevant evidence in accordance with § 203(b). I can only conclude from all of this that the presumptions are unitary; it takes a combination of ten years plus satisfying one of the categories to invoke the presumption. Both the ten year increment and an x-ray, pulmonary test, blood gas test or other medical evidence have probative values relating to all three elements of the presumption, i.e., disease, disability, and causation. In one sense, Judge Phillips’ theory would convert the rebuttable presump*455tion to an irrebuttable one. Another view, however, is that in proving pneumoconiosis at a place designed for mere invocation of a presumption, a claimant has (given the ten years of employment) proven his case — that he is totally disabled from pneumoconiosis as a result of coal mine employment.
. Congress was well aware that medical evidence in black lung cases generally is treated differently at every stage than in traditional litigation. In the first place, there is very little testimony and opportunity for cross examination. Ninety-five percent of all medical evidence consists of doctors’ reports received by the ALJ without the doctors’ presence at the hearing. Smith, The Basics of Federal Black Lung Litigation, 83 W.Va.L.Rev. 763, 788-89 (1981). In appropriate instances, the ALJ should weigh the medical reports and decide medical issues on a preponderance standard. There is no realistic way to enforce that standard, however, since necessarily administrative and judicial bodies affirm the factfinding if there is only substantial evidence to support it.
. There is yet another failing to this "preponderance on invocation” reasoning. Judge Phillips reasons that a "(b)(4)” defense cannot be raised in rebuttal to an "(a)(1)” presumption; and that "(b)(1) & (2)” defenses cannot be raised in rebuttal to an "(a)(4)” presumption. This fails to recognize the basic interrelation between presumptions and evidence. According to the Director's briefed position, a number of x-rays are weighed, and a presumption invoked by a preponderance of the evidence. Judge Phillips goes even farther and would hold that this would irrebuttably prove pneumoconiosis to the exclusion of any rebuttal evidence.
Section 203(b), however, states that all relevant evidence can be considered on rebuttal. It is true that nothing would be gained by weighing all x-ray evidence at invocation and, again, on rebuttal, but x-ray evidence is only one type of medical evidence bearing on the factual issue of pneumoconiosis. A lung biopsy or autopsy, for example, would be superior evidence. Section 203(b)(2) & (3) test results accompanied by appropriate supporting documentation would not be direct evidence of pneumoconiosis but *456would be circumstantial evidence probative of its presence vel non.
Likewise, a doctor's opinion of total respiratory disability is one kind of evidence of inability to work — there are several other types of medical and nonmedical evidence which might counter the medical evidence. Section 203(b) preliminarily speaks to relevant medical evidence, but 203(b)(2) speaks only to relevant evidence generally. In other words, under the proof scheme originally conceptionalized by the regulation, a part of the factfinder's function in the section 203(b) rebuttal phase is to weigh one kind of evidence against another. Judge Phillips' extrapolation would limit this function and make it more difficult both for a claimant to invoke a presumption and for an employer to rebut it. The regulation is designed to have the exact opposite effect. The presumption is to be easily invoked, but the employer is to have wide latitude in presenting its rebuttal evidence.
. See Allen, Presumptions in Civil Actions Reconsidered, 66 Iowa L.Rev. 843, 843 (1981), wherein the author states:
The longstanding controversy over the nature and proper rule of presumptions in civil actions continues undiminished, and the confusion generated by the controversy similarly shows no signs of abating.
All the standard texts on evidence, of course, discuss not only the various attributes of presumptions, but the confusion that surround them. Professor Allen in his article, however, articulates a more basic approach for considering and using presumptions. One statement in his article is particularly applicable to this case:
Moreover, it is the failure to recognize that the word “presumption" is simply a label applied to a range of evidentiary decisions that has caused essentially all the confusion and controversy surrounding presumptions, as well as doomed to failure the extensive efforts to elaborate on the nature of presumptions. Rather than engaging in the futile task of attempting to reconcile the many usages of the word "presumption," efforts would be better spent by analyzing the evidentiary problems that underlie the use of the label.
Id. at 845. See also McCormick, Evidence § 342 et seq. (3d ed. 1984); 1 Weinstein, Evidence If 300 et seq. (1985).
. Presumptions are both legislatively and judicially created. They are varied and difficult to categorize much less compare, and they take the legal coloration of the field of law in which they apply. See generally 1 Weinstein, Evidence 1[ 300 et seq. (1985). The most superficial research reveals why they are difficult, if not impossible, to characterize. Examples demonstrating this are: GENERALLY: A person acting in public office was regularly appointed to it. Official duty has been regularly performed. A court, or judge acting as such, whether in this state or any other state or country, was acting in the lawful exercise of the jurisdiction of the court. Evidence willfully suppressed would be adverse to the party suppressing it. A person is the same person if the name is identical. A person not heard from in seven years is dead. A death occurring from unexplained and violent external means is accidental. When a test reveals presence of drugs in a harness horse, rebuttable presumption exists that trainer was culpable and may be suspended. CONTRACT: Payment of earlier rent or installments is presumed from a receipt for later rent or installments. An obligation delivered to the debtor has been paid. Private transactions have been fair and regular. The ordinary course of business has been followed. A promissory note or bill of exchange was given or indorsed for a sufficient consideration. An indorsement of a negotiable promissory note, or bill of exchange, was made at the time and place of making the note or bill. A writing is truly dated. A letter duly directed and mailed was received in the regular course of the mail. Money paid by one to another was due to the latter. REAL ESTATE: Owner of legal title is the owner of full beneficial title. An uninterrupted adverse possession of real property for a period of years has been held pursuant to a written conveyance. DOMESTIC RELATIONS: A child born in lawful wedlock is legitimate. CRIMINAL: An accused is innocent until his guilt is proven beyond a reasonable doubt. An accused is presumed to be sane. Persons are presumed to know the law of the state in which they reside. TORT: A person intends the ordinary consequences of a voluntary act. When there is a statutory violation, negligence is presumed. When there are no eyewitnesses, the claimant in an accident exercised due care.
. An approval rate of 50% under the SSA fell to only 10% under the Department of Labor administration of the Act prior to the 1977 amendments. Stephens & Hollon, Closing the, Evidentiary Gap, 83 W.Va.L.Rev. 793, 817 (1981); Solomons, supra note 5, at 873 n. 14.
. During the three years in which Congress considered the various precursors of the 1972 Amendments, it received a great deal of testimony about the correlation between the period of exposure and the evidence of the disease.
Dr. Murray V. Hunter, Medical Director, Fairmont Clinic, Fairmont, West Virginia, testified before the House Education and Labor Committee, that exposure over time produces pneumoconiosis and that a presumption of disability because of exposure over time represents sound policy. 1975 Hearings, at 171.
At the 1975 hearings on various black lung amendment proposals, Dr. Dan Fine, New Kensington Miners Clinic, stated:
... and accepting the reasonable presumption that deposition of coal and silica and other minerals in the lungs is a deleterious body burden, it would seem eminently fair and humane to recognize as a matter of law that the passage of a given number of years as a coal miner is, in ánd of itself, reasonable evidence of a substantial burden of lung damage from coal mining and to compensate the miner accordingly.
1975 Hearings, at 117.
Congressman John Erlenborn was the principal spokesman for the opposition to Black Lung provisions including those relating to the interim presumptions. He protested that the interim presumptions, in effect, created an automatic entitlement based on years of employment alone. H.R.Rep. No. 770, 94th Cong., 1st Sess. 99-102 (1975); (separate views of Congressman Erlenborn); H.R.Rep. No. 151, 95th Cong., 1st Sess. 94-96 (separate views of Congressman Erlenborn).
Congressman Paul Simon, in supporting the bill, noted that an autopsy study of 400 coal miners with 21 years or more in the coal mines showed that 90-95% of them had pneumoconiosis. Legislative History of 1977 Act, at 282-83 (statement of Congressman Simon on House Floor in 1976 in support of H.R. 10760, legislation similar to legislation which in the following Congress became the 1977 act).
*461In its report accompanying the 1977 amendments, the House Education and Labor Committee wrote:
There is some autopsy data that provides a basis for some important and more reliable conclusions. Data collected from 405 autopsies as part of the National Coal Workers Autopsy Study at the Appalachian Laboratory for Occupational Respiratory Diseases (ALFORD) shows that of all the miners examined, 84 percent had CWP. When these autopsies were arranged by years worked underground, there was a sharp increase in the percentage of cases after fifteen years, with those with less than fifteen years underground showing 64 percent with CWP and those with more than fifteen years underground showing 88 percent with CWP.
H.R.Rep. No. 151, 95th Cong., 1st Sess. 31 (1977), U.S.Code Cong. & Admin.News 1978, p. 267.
Moreover, non-qualifying test results without more are not even probative evidence in rebuttal. Uninterpreted ventilatory and blood gas studies, unrelated to the results of a physical examination or to a clinical history, do not indicate whether an individual is actually disabled. Similarly, a negative X-ray by itself is not probative evidence of the absence of pneumooconiosis. Thus, the Act provides that a claim cannot be denied solely on the basis of negative X-rays. 30 U.S.C. (Supp. V) 923(b). See Usery v. Turner Elkhorn, supra, 428 U.S. at 31-32 [96 S.Ct. at 2899-2900].