dissenting:
Unlike the majority, I see no reason to deny enforcement of the FLRA’s order requiring HHS to bargain over the Union's proposal. The FLRA’s order is consistent with the agency’s general duty to bargain in good faith over conditions of employment, and does not violate the management rights clause of the Civil Service Reform Act. While HHS now argues, and the majority finds, that Circular A-76 is not an “applicable law” under 5 U.S.C. § 7106(a)(2) in accordance with which the agency must make its contracting-out decisions, I think it is highly improper for us to consider the issue because it is not properly before the court and therefore not within our jurisdiction to decide. I therefore respectfully dissent.
I.
The Act provides that the FLRA’s decisions are reviewable in accordance with section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1982). See 5 U.S.C. § 7123(c) (1982). Our review “is limited to whether the agency’s construction [of its enabling statute] is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” United States Army Engineer Center v. FLRA, 762 F.2d 409, 414 (4th Cir.1985) (quoting 5 U.S.C. § 706(2)(A)). Furthermore,
the Authority is entitled to considerable deference when it exercises its “special function of applying the general provisions of the Act to the complexities” of federal labor relations....
On the other hand, the “deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” ... Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act ... they must not “rubber stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291-292, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965).
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (citations omitted).
Thus, the FLRA’s decision should be upheld if it is reasonably defensible and not inconsistent with any congressional mandate or policy. Id.; EEOC v. FLRA, 744 F.2d 842, 847 (D.C.Cir.1984), cert. dismissed, 476 U.S. 19, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986). I find the FLRA’s order should be upheld in both respects.
II.
Title VII of the Civil Service Reform Act of 1978 (the Act) (codified as amended at 5 U.S.C. §§ 7101-7135) established a collective bargaining system to govern labor-management relations in the federal sector. Under the act, federal agencies and employee unions are required to bargain in good faith over “conditions of employ*1101ment.” 5 U.S.C. § 7103(a)(12). The term “conditions of employment” is defined in the Act as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” 5 U.S.C. § 7108(a)(14).
The duty to bargain is limited by a management rights clause contained in the Act. See 5 U.S.C. § 7106(a). In particular, the management rights clause provides that management has the authority “in accordance with applicable laws ... to make determinations with respect to contracting out.” 5 U.S.C. § 7106(a)(2)(B). The procedures used in exercising this authority, however, are subject to negotiation. Id. § 7106(b)(2).
Pointing to the introductory language of the management rights clause, which states that “nothing” in Title VII “shall affect the authority of any management official of any agency” to make decisions reserved to management, the majority finds that management has complete discretion in making contracting-out decisions. See slip op. at 8, 11 (quoting 5 U.S.C. § 7106(a)). Indeed, the FLRA itself has recognized that the Act reserves to management as nonnegotiable the substantive exercise of its authority to make contracting-out determinations. NFFE, Local 1167 (Homestead Air Force Base), 6 F.L.R.A. 574 (1981), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C.Cir.1982).
Unlike the majority, however, I believe the proposed provision would not establish any additional substantive limits on management’s right to make contracting-out decisions. The FLRA found that HHS is required to adhere to the provisions of the Circular regardless of whether the Union’s proposal is adopted as part of the collective bargaining agreement. The Union’s proposal simply restates HHS’s obligation to adhere to existing legal and regulatory requirements.1 As a result, I agree with the FLRA’s conclusion that the Union’s proposal would not impair HHS’s statutory right to make contracting-out decisions “in accordance with applicable laws.”
The majority finds that the Circular is not a law, rule, or regulation within the meaning of section 7103(a)(9) and is not an *1102applicable law within the meaning of section 7106. See maj. at 1094-96 & n. 1. In EEOC v. FLRA, 476 U.S. 19 (1986), the Supreme Court dismissed certiorari as improvidently granted and declined to reach or resolve the identical issue, because the issue had not been argued before the FLRA or the Court of Appeals. The Court stated that the “Act expressly provides that when an aggrieved party seeks judicial review of a final order of the FLRA, ‘[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.’ 5 U.S.C. § 7123(c).” Id. at 1096. The Court noted that the language of § 7123(c) is “virtually identical to that found in § 10(e) of the National Labor Relations Act,” which the Court has interpreted “to mean that a Court of Appeals is ‘without jurisdiction to consider’ an issue not raised before the Board if the failure to do so is not excused by extraordinary circumstances.” Id. (citation omitted). This court should not now consider the issue for the same reasons.
HHS filed its Statement of Position with the FLRA on January 17, 1986 and did not raise the above argument. The Supreme Court’s decision in EEOC v. FLRA was issued on April 29, 1986. Three months later, on July 31, 1986, the FLRA rendered its decision in the instant matter. It was not until October 1, 1986 that HHS filed a “Motion to Reconsider” in light of EEOC v. FLRA. The “Motion to Reconsider” was denied as untimely because such motions are required to be filed within 10 days after service of an FLRA order. 5 C.F.R. § 2429.17.
There are no extraordinary circumstances warranting this court’s consideration of the above issue. HHS had three months after the Supreme Court’s EEOC decision to supplement its statement of position, but failed to do so. Furthermore, after the FLRA decision, HHS waited two months to file for reconsideration. Since the above argument was not timely presented to the FLRA, according to section 7123(c) of the Act, it is not within the jurisdiction of this court to consider the argument now.2
Incorporating the Circular into the collective bargaining agreement would subject disputes over violations of the Circular to the arbitration procedures contained in the Act. 5 U.S.C. § 7103(a)(9)(C)(i). Subjecting such disputes to arbitration does not render the Union’s proposal nonnegotiable for two reasons. First, as Congress clearly intended, the management rights clause exempts from its coverage any bargaining proposal concerning procedures governing agency contracting-out decisions. Second, contracting-out decisions are currently subject to grievance arbitration under section 7121 of the Act. I will discuss those points seriatim.
A.
The majority finds that adoption of the Union’s proposal would permit arbitral review of HHS’s contracting-out decisions, and that such review would adversely af-*1103feet the exercise of management’s contracting-out authority.3 The argument overlooks section 7106(b) of the Act. Arbitration is a procedure; management’s nonnegotiable authority to contract out under section 7106(a) of the statute is “[sjubject to” section 7106(b)(2), which provides for the negotiation of procedures that management will observe in exercising its authority to contract out. 5 U.S.C. § 7106(b)(2). HHS, while admitting that subjecting management’s contracting-out decisions to arbitral review is procedural in nature, contends that such review will have a substantive effect, because management will be forced to consider the potential impact of arbitration before making its contracting-out decisions.
The majority of this Court today joins the Ninth Circuit in adopting HHS’ curious position. See Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir.1985), cert. dismissed, 476 U.S. 1110, 106 S.Ct. 2004, 90 L.Ed.2d 647 (1986). In Defense Language Institute, the Ninth Circuit maintained that subjecting contracting-out disputes to arbitration would “divest management of the essence of its statutory authority to contract out” because arbitration would allow the neutral arbitrator to second guess the business judgment of management officials. 767 F.2d at 1401. The D.C. Circuit, by contrast, has adopted the FLRA’s view that the proposed provision is a negotiable procedure. EEOC v. FLRA, 744 F.2d 842 (D.C.Cir.1984), cert. dismissed, 476 U.S. 19, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986).
The majority’s contention that the deci-sionmaking process under the Circular is “permeated with discretion” and that therefore substitution of judgment by arbitrators “would be inevitable,” slip op. at 13, is unpersuasive for several reasons. First, an arbitrator’s ability to substitute his judgment for that of management is determined by the substantive standards for review and not by the mere fact that management’s decision is subject to review. The arbitrator is not entitled to substitute his judgment for that of management when management’s decision is a matter of discretion. NTEU v. FLRA, 767 F.2d 1315, 1317-18 (9th Cir.1985); AFGE, Local 1968 v. FLRA, 691 F.2d 565, 573-74 (D.C.Cir.1982), cert. denied, 461 U.S. 926, 103 S.Ct. 2085, 77 L.Ed.2d 297 (1983). Second, if the Executive Department does not like the substantive limits imposed by arbitrators interpreting the Circular, it may change those limits by amending its own Circular. Third, in the event an arbitrator exceeds his authority, management may take exception to the arbitrator’s decision to the FLRA for review. 5 U.S.C. § 7122; see, e.g., Blytheville Air Force Base, 22 F.L.R.A. 72 (1986). Finally, judicial review is available in the event an arbitrator imposes a limitation on management authority that is not “in accordance with applicable laws.” 5 U.S.C. § 7123;4
My belief in the negotiability under section 7106(b)(2) of a Union proposal that would authorize arbitration of disputes over the Circular is consistent with Congress’ intention in adopting Title VII of the Civil Service Reform Act. The Act was adopted with the twin goals of expanding the right of collective bargaining and preserving the ability of the federal government to operate in an efficient manner. Defense Language Institute v. FLRA, 767 F.2d at 1401. The majority protests today that subjecting management rights to the decision of a neutral arbitrator would unduly interfere with the efficient operation of government. See maj. at 1093-1094.
The majority’s interpretation of Title VII of the Act ignores the delicate compromise *1104that allowed the Act to be passed by Congress. The final version of the management rights provision of Title VII was added to the Act on the floor of the House through a compromise measure offered by Representative Udall, the floor manager of the bill, as a result of the demands of promanagement forces.5 Labor sympathizers acceded to the demand for inclusion of the measure in return for the understanding that “the management rights clause is to be construed as a narrow exception to the general obligation to bargain in good faith.” 124 Cong.Ree. H9638 (daily ed. Sept. 13, 1978) (statement of Rep. Clay), reprinted in Legislative History at 932.6 Congress intended Title VII to remedy the past problem of the Federal Labor Relations Council’s (Council) overbroad interpretation of management rights.7 Congress expressed such an intention in the Act by enumerating the management rights protected by the Act as exceptions to the general duty to bargain, 5 U.S.C. § 7106, and by providing that Title VII and decisions of the new FLRA would supersede the Council’s earlier decisions, which were anathema to organized labor. 5 U.S. C. § 7135(b).8 Representative Clay, who helped forge the Udall compromise, and the prolabor forces that supported the bill, emphasized that without acceptance of a canon of construction narrowly interpreting the scope of management rights, the bill would not be acceptable to a majority of Congress:
The whole structure and approach of title VII is [sic] in large part a repudiation of past Council practice. If we could not have been assured that identical language for management rights would be handled differently under the narrow construction mandated by title VII, the Udall compromise would never have been possible.
124 Cong.Rec. H9639 (daily ed. Sept. 13, 1978) (statement of Rep. Clay), reprinted in Legislative History at 934.9
The canon of construction that must guide resolution of the instant case, therefore, is that the management rights clause *1105must be “treated narrowly as an exception to the general obligation to bargain over conditions of employment.” 124 Cong.Rec. H9634 (daily ed. Sept. 13, 1978) (statement of Rep. Udall), reprinted in Legislative History at 924. Therefore,
[o]nly bargaining proposals which [are] directly related to the actual exercise of the enumerated management rights are to be ruled nonnegotiable. An indirect or secondary impact on a management right is insufficient to make a proposal nonnegotiable.... That the conference committee adopted this approach is reflected in the statement of managers that, in negotiations, “the parties may indirectly do what the (management rights) section prohibits them from doing directly.”
124 Cong.Rec. H13607 (daily ed. Oct. 14, 1978) (statement of Rep. Ford), reprinted in Legislative History at 994.10 Advocates of greater management prerogatives were unable to change this aspect of federal labor relations through the legislative process. Relying largely on its own views of appropriate labor relations policy and philosophy, the majority today effectively wipes out the Udall compromise insofar as procedures governing contracting-out are concerned. This court should not grant to management the protection that management was unable to secure from Congress.11
Under the applicable canon of construction, arbitration of a management right according to the substantive standards established by management is clearly a procedural proposal under Title VII. Any effect arbitration may have on management rights is only indirect. Thus, the FLRA is correct in its “conclusion that the proposal does not affect management’s reserved authority, within the meaning of the statutory language, to make contracting-out decisions.” EEOC v. FLRA, 744 F.2d 842, 848 (D.C.Cir.1984), cert. dismissed, 476 U.S. 19, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986).
B.
I agree with the FLRA’s finding that arbitration of disputes involving application of the Circular would be in accordance with applicable laws because section 7121 of the Act already subjects disputes over contracting-out work to the Act’s grievance procedures. That provision states: “Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances ...” 5 U.S.C. § 7121(a)(1). A grievance is elsewhere defined as “any complaint” by any employee or labor organization “concerning any matter relating to the employment of the employee” or by any employee, labor organization, or agency concerning “any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.” 5 U.S.C. § 7103(a)(9). Moreover, contracting-out is not enumerated in the five specific exemptions that Congress granted from the permissible scope of the grievance procedure. Id. at § 7121(c). In light of the expansive coverage of the section, the FLRA found that the proposed collective bargaining provision did not infringe on contracting-out decisions because such decisions were already subject to arbitration.
There is a problem with the FLRA’s view. The management rights provision *1106and the grievance provision of the Act contradict each other. Section 7106 states that “nothing in this chapter shall affect the authority of any management official ... in accordance with applicable laws ... to make determinations with respect to contracting out.” 5 U.S.C. § 7106(a). If applicable law includes section 7121, then section 7106 in effect reads: “nothing in this chapter [71] except all the other provisions of Chapter 71, including § 7121 ... shall affect the authority of any management official of any agency ... to make determinations with respect to contracting out.” See EEOC v. FLRA, 744 F.2d at 857 (MacKinnon, J., dissenting). Thus, under the FLRA’s view of the statute, the clause of section 7106 stating “nothing in this chapter” becomes essentially meaningless because it is modified by the phrase “in accordance with applicable laws” which includes the provisions of “this chapter.”
A similar problem is encountered, however, if the nonnegotiability provisions of section 7106 are found to restrict the grievance provisions contained in section 7121. Section 7121 states: “Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances.” If section 7106 restricts the scope of section 7121 by excluding grievances relating to management’s exercise of its reserved rights from the section’s coverage, then section 7121 in effect reads: “Except as provided in paragraph (2) of this subsection and in section 7106 of this chapter_” Thus, under the majority’s view of the statute, the clause of section 7121 stating “except as provided in paragraph (2)” cannot be given its plain meaning because section 7121 is limited not only by paragraph (2) but by section 7106 as well.
When Congress’ plain language does not convey its intention, the court “ ‘must not be guided by a single sentence or member of a sentence, but [must] look to the provisions of the whole law, and to its object and policy.’ ” Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Boisdore’s Heirs, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850)).12 The Civil Service Reform Act of 1978 was enacted by Congress at a time when federal labor policy had established a preference for arbitration of labor disputes.13 The Supreme Court had declared that under federal labor law, as a general matter, arbitration of provisions restricting or regulating the exercise of management functions was not to be considered a forbidden infringement on management rights unless the parties presented “the most forceful evidence” that they intended to exclude a specific management function from arbitration. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409 (1960). If Congress expected to reverse so fundamental a tenet of federal labor policy, it was obligated to set forth its intention explicitly within the new Act. Congress’ failure to do so impliedly accepts the preference for arbitration.
Indeed, Title VII of the Act was adopted against a background not of unbounded management rights, but of collective bargaining rights that were previously established by Executive Order 11491.14 Under Executive Order 11491, employee grievances involving disputes over employment conditions were subject to arbitration even if they involved nonnegotiable areas of management rights. Report of the Federal Labor Relations Council (June, 1971), reprinted in Legislative History at 1258, 1260-61. Title VII incorporated most of the provisions of Executive Order 11491 into law, but with several substantive *1107changes. The changes resulted from delicate negotiations between the competing labor and management interests which are affected by the Act. The changes did not include a provision altering the practice of subjecting nonnegotiable management rights to arbitration procedures. If those competing interested parties were thus unable to incorporate a change in the Executive Order that formed the foundation of the Act, then such a change should not be made by this Court in the deal that was duly struck within the legislative process.
The legislative history of Title VII of the Act also explicitly indicates that arbitration of nonnegotiable management rights was possible under § 7121.15 The broad definition of grievance in § 7103(a)(9) was put into the Act by the congressional conferees so that
so long as a rule or regulation “affects conditions of employment”, infractions of that rule or regulation are fully grievable even if the rule or regulation implicates some management right. This interpretation of the definition is required both by the express language of the section and by the greater priority given the negotiability of procedures over the right of management to bar negotiations because of a retained management right.
124 Cong.Rec. H13609 (daily ed. Oct. 4, 1978) (statement of Rep. Ford) (emphasis supplied), reprinted in Legislative History at 998. In addition, during the House debates on the Udall compromise amendment to the Act, it was explained that the management rights provision was
still to be treated narrowly as an exception to the general obligation to bargain over conditions of employment.... [This amendment] preserves management’s right to make the final decisions in these additional areas, in accordance with applicable laws, including other provisions of chapter 71 of title 5.16 For example, management has the reserved right to make the final decision to “remove” an employee, but that decision must be made in accordance with applicable laws and procedures, and the provisions of any applicable collective bargaining agreement. The reserved management right to “remove” would in no way affect the employee’s right to appeal the decision through statutory procedures or, if applicable, through the procedures set forth in a collective bargaining agreement.
124 Cong.Rec. H9634 (daily ed. Sept. 13, 1978) (statement of Rep. Udall), reprinted in Legislative History at 924.
There is nothing in the legislative history indicating that Congress intended that the reserved management rights listed in section 7106(a) be beyond the Act’s grievance procedure. In fact, as shown above, the Act’s legislative history clearly demonstrates Congress’ intention that any contradiction between sections 7121 and 7106 be resolved in favor of the employee’s right to grieve issues affecting management rights. Thus, it is clear that the unlawful exercise of a designated management right that is nonnegotiable is grievable under the Act’s negotiated grievance procedure.17
III.
The duty to bargain exists only “to the extent not inconsistent with any Federal *1108law or any Government-wide rule or regulation.” 5 U.S.C. § 7117(a)(1). The Circular provides that its provisions “shall not be construed to create” any right of appeal except as provided in the Circular itself. The majority finds that the FLRA’s ruling, that the Union’s proposal is negotiable, is in conflict with the Circular because the ruling subjects agency contracting-out decisions to the Act’s grievance procedures. At 1098-99. I disagree with the majority's conclusion for two reasons. First, the Union’s proposal does not create any new right of appeal, because, as discussed above, the right to file grievances regarding contracting-out decisions is created by the Act. 5 U.S.C. §§ 7103(a)(9) and 7121(a).18 Second, even assuming there is an inconsistency between the Act’s grievance procedures and the Circular’s appeal procedures,19 there is no indication that Congress intended agencies to limit by regulation the statutorily defined grievance procedure of section 7121. EEOC v. FLRA, 744 F.2d at 851.
The Act’s legislative history makes it clear that Congress intended that section 7117(a)(1) only bar negotiation over proposals that would bring about inconsistencies with law, rule, and regulation. See H.Con. Rep. No. 1717, 95th Cong., 2d Sess. 158, reprinted in 1978 U.S.Code Cong. & Admin.News 2860, 2892, and in Legislative History at 826. Thus, if a proposal’s only inconsistency with a rule or regulation concerns grievance procedures, then section 7117(a)(1) would not bar negotiation of the proposal. The primary concern of the “not inconsistent with any ... law ... rule or regulation” clause of section 7117(a)(1) is with inconsistencies that would interfere with management’s substantive rights. The Circular’s appeals procedure does not affect the guidelines management must follow when making a contracting-out decision. Therefore, section 7117(a)(1) is not a bar to negotiation of the Union’s proposal.
For the reasons stated herein, I believe that the FLRA’s decision that the Union’s proposal is negotiable should be upheld, and its order should be enforced. I therefore respectfully dissent.
Chief Judge WINTER, Judge PHILLIPS, Judge SPROUSE, and Judge ERVIN have authorized me to state that they join in my dissent.
. Before this court, in fact, counsel for HHS indicated that the Department intends to comply with the Circular in making any contracting-out decisions. This does not render the case moot for lack of a case or controversy, however, as HHS and the FLRA do argue over the proposal’s negotiability. HHS contends that adoption of the Union's proposal would, for the first time, subject disputes relating to management’s decisions to contract out work to the Act’s grievance procedures and is therefore nonnegotiable as an infringement on management’s reserved authority. The FLRA, on the other hand, contends that such grievances have always been subject to the Act’s grievance procedures. One of the purposes of the Act is to encourage negotiation over prospective as well as current problems. Agreement as to how particular problems will be handled prior to their occurrence greatly reduces conflict in the event such problems do arise. The fact that there is no current controversy concerning a specific contracting-out decision does not mean this court lacks jurisdiction to determine the proposal’s negotiability. Whether management has a duty to bargain under the Act over a particular proposal is a controversy in and of itself over which this court has jurisdiction. The cases which have found that jurisdiction exists to determine the negotiability of a specific proposal are legion. See, e.g., Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir.1985) (proposal requiring adherence to OMB Circular A-76 held nonnegotiable), cert. dismissed, 476 U.S. 1110, 106 S.Ct. 2004, 90 L.Ed.2d 647 (1986); EEOC v. FLRA, 744 F.2d 842 (D.C.Cir.1984) (proposal requiring adherence to OMB Circular A-76 held negotiable), cert. dismissed, 476 U.S. 19, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986); see also American Federation of Government Employees, Local 1931 v. FLRA, 802 F.2d 1159 (9th Cir.1986) (management's policy of expeditious suspension of driving privileges held to be a nonnegotiable internal security practice); Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir.1986) (union proposal held nonnegotiable because it would violate SSA's right to assign work); Association of Civilian Technicians v. FLRA, 780 F.2d 12 (7th Cir.1985) (proposal relating to requirement that civilian technicians wear military uniforms while performing their nonmilitary duties is nonnegotiable); United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C.Cir.1983) (proposal to bring probationary employees within mandatory grievance procedure held nonnegotiable); State of Nebraska Military Dept., Office of the Adjutant General v. FLRA, 705 F.2d 945 (8th Cir.1983) (proposals for grievance procedures culminating in binding arbitration found nonnegotiable because in conflict with the National Guard Technicians Act).
. The majority opinion suggests that we should adhere strictly to the language of § 7106 regarding contracting out decisions but ignore the command of § 7123(c) that we may not consider on appeal an issue not raised before the FLRA. See slip op. at 19 n. 1. Section 7123(c) unambiguously forbids us to consider the issue of whether Circular A-76 is an applicable law within the meaning of § 7106 because HHS failed to raise the issue before the FLRA in a timely fashion. Nonetheless the majority suggests that the FLRA should have rendered an advisory opinion on the subject because of the Supreme Court's concern over the issue or because it is entitled to waive its timeliness requirements in exceptional circumstances pursuant to 5 C.F.R. § 2429.23(b). The FLRA declined to render such an opinion because no party before it suggested that the issue should be considered and because there were no exceptional circumstances justifying the agency’s failure to raise it. Even if the FLRA’s decision to leave the issue for another day was ill considered, the majority still fails to explain how we may reach the issue when there is no suggestion that the FLRA exceeded its legal authority in declining to consider it. Cf. NFFE, Local 1167 v. FLRA, 681 F.2d 886, 892 (D.C.Cir.1982) ("Congress’ concern for the expeditious resolution of negotiability disputes mandates strict application of the time limits in section 7117(c) and rules out any obligation by the FLRA to supplement the parties' submissions.”).
. The majority joins HHS in assuming that if the Union’s proposal is not adopted then arbi-tral review under the Act of management’s compliance with the Circular would be unavailable. See maj. at 1092. As shown in Part B infra, however, HHS’s contracting-out decisions are subject to arbitral review regardless of whether the Union's proposal is adopted.
. The practical effect of decisions to contract out is the shifting of work to the nonunion sector from union employees. As a result, challenges to contracting out decisions will typically be accompanied by unfair labor practice charges of antiunion discrimination. See 5 U.S.C. §§ 7116(a)(1), (2) and 7123(a)(1). Therefore, arbitral decisions erroneously applying Circular A-76 will almost always be subject to judicial review.
. The management rights clause that appears in the Act was adopted as an amendment on the House floor to the clause reported by the House Committee on Post Office and Civil Service. The Udall compromise rejected the version of the bill reported by the Senate which simply codified the existing practices and decisions under existing Executive Order 11491. See S.Rep. No. 969, 95th Cong., 2d Sess. 104, reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2826, and in House Subcomm. on Postal Personnel & Modernization of the House Comm, on Post Office & Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 740, 764 (Subcomm.Print No. 7, 1979) [hereinafter Legislative History]. The amendment adopted on the House floor was adopted by the House-Senate Conference Committee without change. H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153-54 (Conference Report), reprinted in 1978 U.S.Code Cong. & Admin.News 2860, 2887-88, and in Legislative History at 821-22.
. Rep. Clay chaired the Subcommittee on Civil Service. The Federal Labor Relations Council, which interpreted the Executive Order previously governing federal labor management relations, had broadly construed the management rights protected by that order. See 124 Cong. Rec. H9638 (daily ed. Sept. 13, 1978) (statement of Rep. Clay) (Council has departed from the canon of construction that management rights clause should be interpreted narrowly), reprinted in Legislative History at 932; id. at H9648 (statement of Rep. Ford) (Council has interpreted the management rights clause too broadly, thwarting employees and administrators alike), reprinted in Legislative History at 953.
. Id. at H9638 (statement of Rep. Clay) ("Title VII is remedial legislation designed to cure the problems caused primarily by the Council's misinterpretation of the Executive Order"), reprinted in Legislative History at 932; id. at H9649 (statement of Rep. Ford) (“Title VII itself is remedial legislation”), reprinted in Legislative History at 955.
. See 124 Cong.Ree. H9651 (daily ed. Sept. 13, 1978) (statement of Rep. Ford) (§ 7135’s "'superseded' language is intentionally included to make clear that the new authority, acting under its own statutory charter, is not to repeat past mistakes in the area of labor-management relations. Title VII as a whole, and the management rights clause in particular, mandates [sic] a new approach to labor relations in the Federal Government_”), reprinted in Legislative History at 958.
. See also id. at H9649 (statement of Rep. Ford) (adoption of a narrow construction of the management rights provision "is an essential element in our working out the Udall compromise"), reprinted in Legislative History at 954.
. The remarks of Representative Ford, a member of the conference committee, explaining the final bill were endorsed by several other members of the conference committee. See 124 Cong.Rec. ES724 (daily ed. Oct. 14, 1978) (statement of Rep. Clay), reprinted in Legislative History at 1001; id. at E5727 (statement of Rep. Schroeder), reprinted in Legislative History at 1002.
. Judges must be honest agents of the political branches. They carry out decisions they do not make.... [G]ood judges make it easier
for the political branches to strike compromises, to enact new laws.... Judges’ claim to authority rests on a plausible demonstration that they are faithfully executing decisions made by others. The consequence of honest and capable discharge of that function may be more rent-seeking legislation, or it may be more general-interest legislation ... [w]hich occurs is not the judges’ affair.
Easterbrook, The Supreme Court, 1983 Term— Foreword: The Court and the Economic System, 98 Harv.L.Rev. 4, 60 (1984) (footnote omitted).
. The only way to resolve the conflict between sections 7106 and 7121 of the Act, while at the same time preserving the entire statute, is to classify arbitration as a section 7106(b)(2) negotiable procedure.
. AT & T Technologies v. Communication Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
.Executive Order 11491 is reprinted in Legislative History at 1244-57.
. Court decisions interpreting the Act have consistently concluded that management functions that are nonnegotiable under the Act may be subject to arbitration under § 7121. See Cornelius v. Nutt, 472 U.S. 648, 652, 105 S.Ct. 2882, 2885, 86 L.Ed.2d 515 (1985) (agency procedures used in nonnegotiable disciplinary actions are subject to statutory grievance procedures); Andrade v. Lauer, 729 F.2d 1475, 1484-89 (D.C.Cir.1984) (application of nonnegotiable reduction-in-force rules and regulations is subject to statutory grievance procedures).
. "Other provisions” includes section 7121 which established the Act’s grievance mechanism.
. AFGE, Local 1336 v. FLRA, 829 F.2d 683, 687 (8th Cir.1987). The Act itself shows that Congress intended disputes concerning the exercise of management rights to be grieved under the provisions of the Act. The authority to take disciplinary action is a reserved management right listed in section 7106(a)(2)(A) which was excluded from the Act’s grievance procedure by section 7121(c)(3). The exemption for complaints concerning disciplinary action would have been unnecessary if Congress believed that complaints concerning the exercise of a nonnegotiable management right were not subject to the Act’s grievance procedures.
. The Circular itself indicates that it will not apply when it is in conflict with a statute: "This Circular and its Supplement shall not: (1) Be applicable when contrary to law_” 48 Fed. Reg. 37110 at ¶ 7(c)(1) (1983).
. The majority compares the appeals procedure provided in the Circular with Title VII's grievance and arbitration procedure, and concludes that they are impermissibly inconsistent because of the Circular's proviso that it “shall not be construed to create any substantive or procedural basis for anyone to challenge any agency action or inaction on the basis that such action or inaction was not in accordance with this Circular." Maj. at 1099 (quoting OMB Circular A-76 at 4). It is patently obvious that this provision in the Circular is designed merely to prevent any claim of a private right of action arising from the Circular itself apart from the appeals procedure contained in the Circular. It does not purport to do something an internally promulgated executive branch rule cannot do in any event, namely limit the rights or remedies that may be conferred by a federal statute such as Title VII of the Civil Service Reform Act of 1978.