concurring:
When the litigants originally argued this appeal' in October 1985, the Army, in challenging the constitutionality of the Competition in Contracting Act, 31 U.S.C. §§ 3551-3556 (CICA), as well as the Senate, the House, and the Comptroller General in seeking to uphold CICA’s constitutionality, focused almost exclusively on one question: did the Comptroller General belong to the Executive or the Legislative branch? See Ameron, Inc., v. U.S. Army Corps of Engineers, 787 F.2d 875 (3d Cir.1986) (Ameron I). Little attention was paid at that time to the one aspect of CICA which allegedly crossed the forbidden line separating the two branches: that aspect, of course, is the “stay” provision of the statute, discussed in detail in Judge Becker’s instant majority opinion. Maj.Op., at 985-986.
Writing for the original majority, I addressed the concern that the parties advanced as the crucial aspect of the appeal. I was satisfied that because no bright line separated the three branches of our government, we could find the power to sustain CICA and the functions of the Comptroller General by reference to those types of government agencies that combined two basic powers — the Legislative and the Executive. I felt then that the teachings of Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), permitted us to hold that the Comptroller held an office of a hybrid, independent nature— an office which did not transgress the separation of powers of our Constitution.
Judge Becker disputed the analysis of the majority that the Legislative and Executive powers could exist in a hybrid branch. Nevertheless, he agreed with the result we reached. He did so by examining the particular power given to the Comptroller General — to order a stay of the award or performance of the contract. He then determined in his concurring opinion, as he now determines in his majority opinion, that the particular power was so de minimus that it did not endanger the separation-of-powers principles.1 All members of the original panel opinion thus concluded — albeit by different approaches — that CICA was constitutional and that the Army’s challenge was meritless.
Thereafter, of course, the Supreme Court decided Bowsher v. Synar, — U.S.-, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), which held that the Comptroller General was a legislative agent, and as such could not be a decisive actor in determining budget matters. Bowsher rejected clearly the analysis of the status of the Comptroller General to which the original majority in Ameron adhered. Bowsher required unequivocally that any separation of powers inquiry include an analysis of the removal power. Bowsher held unambiguously that because Congress retained removal authority over the Comptroller General, the Comptroller General was a legislative officer and therefore could not be entrusted with the executive powers that Congress granted him with respect to this nation’s budgetary functions.
It should be noted, however, that Bowsher did not limit the holding of Humphrey’s Executor that an agency such as the FTC could legitimately exercise hybrid authority. It left open the question as to whether other independent agencies should be permitted to perform duties for one or more branches while they remain independent of any. Bowsher, 106 S.Ct. at 3188 n. 4; see also id. at 3199 n. 11 (Stevens, J. dissenting). Nor, of course, did it diminish the vitality of Nixon’s instruction that “[I]n determining whether the Act disrupts the *1000proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Nixon, 433 U.S. at 443, 97 S.Ct. at 2790.
We therefore come to the present proceeding with Ameron I and Bowsher as a backdrop. Here we must determine anew whether the separation of powers has been violated by CICA. Now that the Supreme Court has rejected the majority approach taken in Ameron I, Judge Becker’s original analysis, which addressed the extent of intrusions by one branch into coordinate branches, appears to me a desirable way to resolve the constitutional challenge brought by the Army against the Comptroller General. In adopting that analysis, however, I do not include Judge Becker’s original suggestion (since abandoned by Judge Becker) that the degree of instrusion was to be measured by threats to individual liberty. See Maj. Op., at 982 n. 2.
The central dispute no longer revolves around the issue of the Comptroller General’s status. That issue has been resolved by Bowsher and is not open to question here. The only remaining question concerns the “stay” power that CICA grants to the Comptroller General.
Although Judge Becker’s scholarly opinion for the majority explores a number of factors that may be germane to this determination, the answer to this question in the last analysis must turn on an assessment of the degree of the alleged intrusion into the authority of the coordinate branch. This is more of an empirical exercise in measuring the effect of the intrusion on the coordinate branch, than it is a theoretical exercise in questioning whether, in embryo, a dangerous violation of principle lurks beneath an apparently benign legislative mechanism.
Thus, in my view, the important distinction between this case and Bowsher is simple and clear. In Bowsher, the Comptroller General had the power to mandate budget cuts, enabling him, therefore, completely to usurp a function assigned to the Executive. In the present case, however, the Comptroller General’s power is limited — indeed, it may be characterized as almost trivial when compared with the power at issue in Bowsher. Here, the Comptroller General has only the fleeting and extremely limited power to stay a grant award or contract performance until an investigation has been completed.
On the same day that Bowsher was decided, the Supreme Court decided Commodities Futures Trading Comm’n v. Schor, — U.S. -, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Commodities involved the question of “whether the Commodities Exchange Act empowers the Commodity Futures Trading Commission to entertain state law counterclaims in reparation proceedings, and if so, whether that grant of authority violates Article III of the Constitution.” Id. 106 S.Ct. at 3249 (citation omitted). While Commodities is not directly analogous to the present case, it does speak directly to the issue of a de minimus intrusion which crosses separation-of-powers boundaries. That issue was left open in Bowsher, as I have noted. In my view, it is presented to us today.
The discussion in Commodities is best understood by a reading of Commodities’ own language, which I quote:
In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimus____ Nor does our decision in Bowsher v. Synar require a contrary result. Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch. Instead, the separation of powers question presented in this case is whether Congress impermissibly undermined, without appreciable expansion of its own power, the role of the Judicial Branch____ In [reaching our result], we have also been faithful to our Article III precedents, which counsel that bright line rules cannot effectively be employed to yield broad principles applicable to all Article III inquiries____ We conclude that the limited jurisdiction that the *1001CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not contravene separation of powers principles or Article III. .
Id. at 3261 (citations omitted).
Adhering to the teaching provided by Commodities leads me to the conclusion that whether the stay power is constitutional depends upon whether there is an “aggrandizement of power at the expense of a coordinate branch.” 106 S.Ct. at 3261. The answer in each case will depend, of course, upon whether the extent of the intrusion at stake is permissible in terms of the Commodities test and is limited to that which is necessary to make an otherwise unobjectionable procedure workable.
Thus, in my opinion, examining the critical and challenged portion of the legislation, rather than the entire enactment itself, is a far more direct, more accurate and less arduous task than a reexamination of the whole of the unchallenged statute.2 When I consider that there are many statutes which have given the Comptroller General responsibilities which may be deemed to cut across separation-of-power lines and which might therefore be attacked as the “stay” provision of CICA here has been challenged, it appears to me that the better analysis is one that focuses on the degree of intrusion that only the ostensible offending provision may cause.
If that intrusion is great, as it was found to be in Bowsher, then of course the statute itself may be held unconstitutional unless the provision in question can be corrected to conform to constitutional mandates. In Bowsher this would have required only a change with respect to the power of Congress to remove the Comptroller General. Bowsher, 106 S.Ct. at 3188. If, on the other hand, “the magnitude ... of any intrusion on the [coordinate branch] can only be termed de minimus,” Commodities, 106 S.Ct. at 3260, then no correction of any part of the statute is required, and any attack upon the statute on the grounds of separation-of-powers principles will be fruitless.
Such an analysis would seem appropriate, for example, for the type of statutes listed in the brief of the Senate; these statutes delegate to the Comptroller General various functions which may be questioned as offending separation-of-power principles. That list is attached to this opinion as Appendix A. I attach it to draw attention to the number and variety of the Comptroller General’s responsibilities under statutes which may well be affected by attacks similar to the Army’s challenge to CICA here. I suggest that potential challenges, if made, are best resolved by the type of analysis I have proposed in this opinion.
In the present case, my analysis leads me to conclude that the stay power granted to the Comptroller General is not of such magnitude that it should be stricken as unconstitutional. By any test, I am content to hold that the very limited power granted to the Comptroller General under CICA does not undermine the role of the Executive Branch. Hence, upholding CICA’s “stay” power does not in my opinion violate separation-of-powers principles.
I therefore concur in the result reached in the majority opinion.3
*1002 APPENDIX A
AUTHORITIES OF THE COMPTROLLER GENERAL INDICATED BY THE SENATE AS POTENTIALLY AFFECTED BY BOWSHER v. SYNAR
1. Claims settlement, generally
31 U.S.C. § 3702 a. The Comptroller General shall settle “all claims of or against the United States.”
31 U.S.C. § 3711(b) b. Only the Comptroller General can compromise a claim arising from, an audit exception.
2 U.S.C. § 130c c. Investigating applications for waiver of claims over $500 for erroneous payments to Vice President, a Senator or senate employee. Such claims may not be waived if Comptroller General takes exception to the account.
31 U.S.C. § 3711(b) d. Resolves doubtful claims submitted by agencies if not over $20,000 each.
31 U.S.C. § 3711(e) e. Prescribes claims collection standards jointly with the Attorney General.
31 U.S.C. § 3531 f. (b)(2) The Comptroller General must charge appropriation accounts for losses and damage to United States property attributable to negligence of an official or agent of the agency.
31 U.S.C. § 3526(a) g. The Comptroller General must supervise the recovery of all debts certified as due to the Government.
2. Account settlement
31 U.S.C. § 3526 a. The Comptroller General shall settle all accounts of the United States Government.
31 U.S.C. § 3526(d) b. The balance certified by the Comptroller General is conclusive on the executive branch of the Government.
31 U.S.C. § 3526(d) c. The Comptroller General may change the account within a year after settlement on his own initiative or on the request of an agency head. Any change he makes is also conclusive on the executive branch.
31 U.S.C. § 3521(a) d. With the consent of the Comptroller General, the head of an agency (required to conduct an administrative audit of agency accounts before submitting them to the Comptroller General) may waive any part of the audit.
48 U.S.C. § 1469 e. The Comptroller General must settle and adjust all disbursement accounts of appropriated funds to support governments of the United States territories.
18 U.S.C. § 4126 f. The Comptroller General must settle and adjust all receipts and disbursements from the Federal Prison Industries Fund. No disbursements can be made from the fund without a warrant or certificate of settlement from the Comptroller General.
g. Panama Canal Commission.
22 U.S.C. § 3712 (c)(2) (1) Before the Commission may receive an appropriation for any fiscal year, the Comptroller General must certify the accuracy of the Department of Defense’s estimates of tolls likely to be collected and amounts likely to be needed.
22 U.S.C. §§ 3712 (c)(2) and 3751(a) as amended by Pub. L. No. 98-63 (2) Before funds may be paid to the Republic of Panama, pursuant to Treaty obligations, the Comptroller General shall determine, on the basis of an annual validation audit, whether payments made to the Republic of Panama by the *1003Commission accurately represent excess operating revenues over expenditures. Any overpayment he discloses must be refunded by Panama or offset against other payments due to Panama.
22 U.S.C. § 2221(d) h. Audits under Foreign Assistance Act of 1961, as amended.
The Comptroller General must audit any fund established solely with United States contributions to make grants and loans to international organizations but which is administered by such international organizations pursuant to an agreement with the United States. If the Comptroller General finds that the funds are not being administered in accordance with the agreement, the President is required to modify the agreement to conform to the Comptroller General’s findings and recommendations.
31 U.S.C. § 1556 i. Comptroller General reports on appropriation accounts. In connection with his general audit authority, the Comptroller General must report on the state of executive agency appropriation accounts, including an appraisal of unpaid obligations. By the 30th day after receiving the report, the agency must carry out whatever actions the report shows are necessary.
3. Advance legal decisions
31 U.S.C. § 3529 and A disbursing or certifying official or the head of an 31 U.S.C. § 3526(b) agency may request an advance legal decision about the propriety of making a proposed payment or certifying a particular voucher for payment. The Comptroller General must issue the decision requested. If the agency accepts the decision initially, the Comptroller General may deem the agency to have bound itself for future purposes.
4. Relief authorities
31 U.S.C. § 3527 a. The Comptroller General is the only government official who can relieve a present or former accountable officer from liability for a physical loss of money, or for an illegal, improper, or incorrect payment from his account. Except for physical losses in accounts of disbursing officers in the Armed Services, such determinations are binding on all executive branch agencies.
31 U.S.C. § 3527(c) b. The Comptroller General may deny relief if he finds that the head of the agency did not diligently carry out collection action under procedures prescribed by the Comptroller General.
31 U.S.C. § 3528(b) c. The Comptroller General may relieve certifying officers from liability for improperly or illegally certifying a voucher for payment, when he finds that certain statutory criteria have been met.
31 U.S.C. § 3528(c) d. The Comptroller General may relieve a certifying official from liability for overpayments to common carriers when certain specified conditions are met.
5. Prescribing accounting standards or procedures
31 U.S.C. § 1112 a. The Comptroller General must establish, maintain (c)(1) & (d) and publish standard terms and classifications for use in providing fiscal, budget and program informa-
*1004tion about agency activities. Agencies are required to use the Comptroller General’s terms and classifications when they report on their programs to the Congress.
31 U.S.C. § 3511(a) b. The Comptroller General shall prescribe accounting principles, standards, and requirements which the head of each executive agency shall observe.
31 U.S.C. § 3512 (e) & (f) c. The Comptroller General is authorized to review, and to approve the accounting systems of each executive agency when he finds they conform to his prescribed principles, standards, and requirements.
31 U.S.C. § 3513(c) d. The Comptroller General shall review, and approve the reporting and accounting system in the Department of the Treasury when he finds that it conforms to his requirements.
31 U.S.C. § 3521(b) e. The Comptroller General may prescribe the maximum amount of a voucher that may be audited under a statistical sampling procedure.
31 U.S.C. § 3530 f. The Comptroller General may prescribe regulations to adjust appropriation accounts for a loss of funds attributable to accountable officer negligence.
31 U.S.C. § 3522 (a)(1) g. Disbursing officials may submit their accounts quarterly unless the Comptroller General decides that the public interest requires more frequent submissions.
22 U.S.C. § 283j-l h. Inter-American Development Bank.
The Comptroller General must prescribe for the Secretary of the Treasury the scope of and the auditing and reporting standards which the Executive Director of the Inter-American Development Bank must follow.
22 U.S.C. § 2221(e) i. The Comptroller General must prepare auditing and reporting standards in connection with his audits of United Nations and affiliated agencies, International Bank for Reconstruction and Development, Asian Development Bank, and the International Atomic Energy Agency. These standards must be incorporated in any proposed agreement the President makes with these entities.
47 U.S.C. § 396© (4)(A) j. Corporation for Public Broadcasting. The Corporation may not distribute any funds to National Public Radio unless it can determine that NPR is implementing a system of financial controls and procedures recommended by an independent C.P.A. (which system the Comptroller General has determined complies with generally accepted accounting principles and which reflect prudent management practices).
42 U.S.C. § 300x-5 k. State audits of community health center grants from HHS must comply with the Comptroller General’s standards for audits of government agencies and organizations.
31 U.S.C. § 7501 et seq. (new) l. State and local assistance programs — must be audited in conformance with the Comptroller General’s generally accepted auditing standards.
31 U.S.C. § 6723 (a)(1) m. State Revenue Sharing programs — must also be audited in conformance with the Comptroller General’s generally accepted auditing standards.
31 U.S.C. § 3523 (c)(1) n. Records retention — the Comptroller General may require agency records to be retained under conditions and for a period of not more than 10 years (unless *1005the Comptroller General and the head of the agency agree to a longer period).
6. Participation in decision-making as member of independent boards and commissions
Current memberships include: Railroad Accounting Principles Board (49 U.S.C. § 11161 et seq.); U.S. Railway Association Board of Directors (45 U.S.C. § 711); Technology Assessment Advisory Council (2 U.S.C. § 476); and a board to arbitrate disputes about price, quality, suitability etc. of prison-made products, decisions of whieh are binding on Federal agencies required to buy the products. (18 U.S.C. § 4124).
7. Davis-Bacon Act Determinations
40 U.S.C. § 276a-2 The Comptroller General is required to make Davis-Bacon Act determinations about a contractor’s liability for failing to pay laborers and mechanics required level of wages, followed by decision to debar the contractor from participating in further Government contracts for a period of 3 years.
8. Countersigning Warrants
31 U.S.C. § 3323 The Comptroller General is required to countersign warrants before the Secretary of the Treasury may pay the various agencies their share of appropriated funds.
9. Reasonable Price Determination
DOD Authorization The Comptroller General must determine the reasonaAet, Pub.L. ble price of uranium tetrafluoride (used to produce con-No. 99-145, ventional ammunition) in order to enable the Secretary of 99 Stat. 725 the Army to make required certifications to the Congress, which is a prerequisite to providing the uranium to contractors from stockpile materials.
10. Impoundment Suits
2 U.S.C. § 687 The Comptroller General is “expressly empowered” to bring a civil action in the United States District Court for D.C. against any department, agency, or officer to require him to make budget authority available for obligation which, in his view, should not have been impounded.
11. Verification Examinations of Energy Information
42 U.S.C. § 6382 The Comptroller General has authority to issue subpoe(a)(1) nas to produce books and records, compel attendance of witnesses, and require written answers to his interrogatories in connection with his duty to conduct verification examinations of information furnished about energy resources.
The Comptroller General may assess civil penalties of up to $10,000 for each violation of an order to produce information.
The Comptroller General has authority to obtain enforcement of his subpoenas or orders in a United States District Court.
12. Certifications of judgments, awards, and. compromises for payment from the judgment fund
31 U.S.C., generally The Comptroller General may refuse to certify judgments, awards and compromises if he finds that the requirements of the law, both as to the underlying judgment and/or a claim for interest, have not been met.
13. Procurement Protest System under Competition in Contracting Act
31 U.S.C. § 3551 et a. Protests by contractors alleging a violation of prol- curement statutes or regulations shall be decided by *1006the Comptroller General within specified time limits. The decision may contain recommendations to the agency, but they are not binding. Nevertheless, the agency is not allowed to proceed with making its award until the Comptroller General’s decision has been issued unless it makes a written finding that “urgent and compelling” circumstances will not permit the delay.
31 U.S.C. § 3554(c) b. The Comptroller General may determine that the solicitation for a contract or proposed award doesn’t comply with a statute or regulation and declare the interested party to be entitled to the costs of filing and pursuing the protest, including attorney fees, and bid and proposal preparation costs. Federal agencies are required to pay such monetary awards promptly out of available funds.
14. Form and content of information provided to Congress
31 U.S.C. § 1113(b) The Comptroller General can require OMB and heads of executive agencies to provide to the Congress fiscal, budget, and program information, including summary tables and whatever related information the Comptroller General thinks is necessary.
. To determine an acceptable level of intrusiveness, Judge Becker initially asked whether the challenged procedures "threaten to coalesce powers in one branch such that individual liberty ... is threatened.” Ameron I, 787 F.2d at 895. In light of Bowsher, he has retreated from that proposed standard. See Maj. Op., at 982, n. 2.
. The majority, on the other hand, appears to believe that it is necessary to begin with an inquiry into the constitutionality of CICA as a whole. See Maj. Op., at 991-993, 993-995. To determine the constitutionality of the purposes of the entire Act before examining the questioned procedure itself (in this case, the Comptroller General’s "stay” power) is, in my view, to prejudge the issue, since any view of the significance of the stay power must necessarily color the ultimate view of the purposes of the Act.
. In so concurring I am in obvious agreement with the scope of the injunction originally modified in Ameron /, and now adopted by Judge Becker in Ameron II. See, Maj. Op., at 982, n. 1.