with whom A. LEON HIGGINBOTHAM, Jr., SLOVITER and SCIRICA, Circuit Judges join, concurring in part and dissenting in part.
I agree with the plurality that the Secretary of Transportation is not precluded from establishing “safe harbor” provisions which limit the amount which local transit authorities must expend on transportation services for the mobility-impaired in order to qualify for federal financial assistance. I also agree that despite the leeway afforded the Secretary in these financial matters the particular 3% figure that the Secretary adopted here as a safe harbor was arbitrary and capricious.
I dissent, however, from the plurality’s governing premise that the four statutes under scrutiny, (§ 16(a) of the Urban Mass Transportation Act (“UMTA”), 49 U.S.C. App. § 1612(a) (1982); § 504 of the Rehabilitation Act of 1973 (“§ 504”), 29 U.S.C. § 794(a) (1982 & Supp. V 1987); § 165(b) of the Federal-Aid Highway Act (“FAHA”), § 165(b), 23 U.S.C. § 142 note (1982); and, § 317(c) of the Surface Transportation As*1204sistance Act of 1982 (“STAA”), 49 U.S.C.A. App. § 1612(d) (West Supp.1989) (originally codified at 49 U.S.C.App. § 1612(c) (1982)), do not mandate that all newly purchased buses be equipped with wheelchair lifts. I conclude, instead, that the goal of eradicating the “invisibility of the handicapped” led Congress to enact measures to facilitate if not immediate and complete mainstreaming of the handicapped then affirmative aggressive steps in that direction. From the strong directive of § 504 prohibiting discrimination against the handicapped and the language of the transportation statutes enacted and amended from 1970 to 1982, an obvious theme emerges: only a mixed-system of lift-equipped buses for those able to utilize them and a paratransit system for those who cannot will adequately implement the statutory mandates. I have utilized the balancing test fashioned by the Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), and Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), and conclude that ordering that newly purchased buses be accessible to the mobility-impaired does not exact a fundamental alteration to the nature of mass transportation. Also, in requiring that newly purchased buses be accessible, I am confident that undue financial or administrative burdens would not be imposed on the local transit authorities.
The current DOT final rule, promulgated under the authority of § 504, UMTA, PAHA and STAA, is not an effective enforcement vehicle of Congress’ clear mandate of equal accessibility. The local option format discussed in Subpart E of the regulations allows local authorities to choose a paratransit system as the sole means of providing public transportation to the disabled. This permission afforded by Subpart E nullifies the requirement of Sub-part C, which is part and parcel of the final rule, that newly purchased buses accommodate the mobility-impaired. Accordingly, Subpart E must be invalidated.
I.
The plurality carefully outlines the statutory and regulatory history of public transportation law1 and then asks the threshold question of what Congress actually required by these statutes that delineate the rights of the mobility-impaired. The plurality answers this query by concluding that mainstreaming is not mandated, this result being grounded on general principles of agency deference, which I conclude are clearly reduced in this instance because of the many reworkings of the regulations, see Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), because no other court has interpreted § 504 to require that newly purchased buses must be equipped with wheelchair lifts, and because the broad language of the transportation statutes do not sufficiently outline that mainstreaming is required.
*1205If by its statement that the statutes do not expressly require local authorities to mainstream mobility-impaired individuals, the plurality literally meant that the statutes do not explicitly state that new buses must be equipped with wheelchair lifts, then it would be correct. The plurality, however, contends that the statutes do not establish equal rights to utilize mass transportation facilities and services and, with this conclusion, I strongly disagree.
I preliminarily address the question of the degree of deference afforded to DOT in scrutinizing the regulations it promulgated. Contrary to the plurality’s position, this is not a situation where agency deference is required because the statutes are vague or silent with respect to a specific issue. Here, the greater portion of the legislation at issue reveals a clear intent to equalize transportation opportunities for the mobility-impaired. In these instances of unambiguous congressional aim, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984), upon which the plurality places much reliance, compels invocation of a less deferential standard.
I do acknowledge that § 504 of the Rehabilitation Act is less than a model of clarity, see Rhode Island Handicapped Action Committee v. Rhode Island Transit Authority, 718 F.2d 490, 494 (1st Cir.1983), (“[§ 504] is both ambiguous and lacking in specifics,”), however, UMTA, FAHA and STAA by their direct language mandate equal accessibility to public transportation for the mobility-impaired.2 UMTA, for example, declares: “[E]lderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services.” 49 U.S.C.App. § 1612 (emphasis added). FAHA dictates that: Federally-supported transportation projects “shall be ... designed so that mass transportation facilities and services can effectively be utilized by elderly and handicapped persons.” 23 U.S.C. § 142 note (emphasis added). Finally, STAA orders: Final regulations must be promulgated to establish “minimum criteria for the provision of transportation services to handicapped and elderly individuals by recipients of [federal funds] under ... any provision of law referred to in § 165(b) of the Federal-Aid Highway Act of 1973 [mandating effective utilization].... ” 49 U.S.C.App. § 1612(d).
We are thus presented with the situation, § 504 excepted, where Congress has directly spoken on the pertinent issue. Because “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent,” Chevron, 467 U.S. 837, 843 n. 9, 104 S.Ct. at 2781 n. 9 (citations omitted), I am not here constrained by the breadth of discretion ordinarily afforded to the Secretary’s interpretation.
With this premise of reduced deference in mind, when appropriate, as did the plurality, I examine each statute in turn.
II.
A. Section 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act has been referred to as the cornerstone of the civil rights movement of the mobility-impaired. As the plurality correctly notes, the Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), and Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), instructs, albeit without much guidance, that the forceful agitators of Section 504 — effectuation of the statute’s non-discriminatory objective and the need to impose reasonable boundaries in accomplishing its purpose — must be balanced in ascertaining what is required by the language of the statute. Al*1206though' the plurality acknowledges the difficulty in discerning the exact accommodations mandated by § 504, it, nonetheless, was able to conclude that Davis and Choate contemplate that “modest modifications” may be necessary. Opinion at 1192.
I perceive no basis for the plurality’s choice of the modifier “modest” to describe the holdings of Davis and Choate. Nonetheless, even if “modest” modification is indeed proper to describe what these cases require, I believe that the addition of a wheelchair lift would fit into the common definition of that adjective.3
My discussion of Davis and Choate cannot, however, end here. Although recognizing the imprecise instructions of Davis and Choate, speculation as to the cases’ collective meaning can nonetheless be reduced by a practical exercise not undertaken by either the district court or the plurality. I would posit that had the district court, or, likewise the plurality, conducted a Davis analysis of the regulations, i.e., “are disabled persons otherwise qualified to use public buses?”, a contrary conclusion concerning § 504 would have been reached.
As pointed out by the plurality, the district court addressed this issue of reasonable accommodation in a straightforward manner: it reviewed § 504, uncovered no congressional mandate that public buses be made fully accessible and upheld the validity of Subpart E’s local option/minimum service criteria provision. In addition the district court did not address Choate, despite the Supreme Court’s indication that a transit agency should modify its operation to some extent in order to permit meaningful access to disabled people unless an alteration would violate one of the Davis limitations. Instead, the district court and the plurality rely upon APTA v. Lewis, 655 F.2d 1272 (D.C.Cir.1981), Rhode Island Handicapped Committee v. Rhode Island Public Transit Authority, 718 F.2d 490 (1st Cir.1983), and Disabled in Action of Baltimore v. Bridwell, 593 F.Supp. 1241 (D.Md.1984), for authority that mainstreaming is not necessary in order to comply with § 504.
Reliance upon APTA v. Lewis is misplaced, since its majority opinion emphasized the non-requirement of affirmative action language of Davis, 442 U.S. at 411, 99 S.Ct. at 2369, and did not undertake an “otherwise qualified” analysis. In APTA, the Court of Appeals for the District of Columbia addressed the onerous financial burden imposed by the 1979 regulation requiring retrofitting existing systems and was not focused on the requirement that newly purchased buses be accessible. 655 F.2d at 1277. DOT recognizes this in the preamble to the present regulations: “The Court [in APTA] said, however, that the 1979 regulation, as applied to mass transit, exceeded the Department’s section 504 authority because it required overly costly efforts to modify existing systems.’’ 51 Fed.Reg. 18,994 (1986) (emphasis added).4
Although I cannot emphatically conclude that the APTA court’s statement that: “[A]t some point a transit system’s refusal to take modest, affirmative steps to accommodate handicapped persons might well violate section 504,” id. at 1278, was a direct reference to a new bus accessibility requirement, I utilize this language as affirmation of the reasonable accommodation mandate of Davis and Choate. Indeed, the applicability of Davis was responded to in the concurring opinion filed in APTA: “[T]he application of section 504 to public transportation systems raises some ques*1207tions that are significantly different than those considered by the Supreme Court in the higher education setting in [Davis ]....” 655 F.2d at 1281 (Edwards, J., concurring).
I find a marked qualitative distinction between the mobility-impaired’s utilization of mass transit — a public program that wheelchair users are entitled to use although not practically available — and a deaf student’s capability to participate in a nursing program which selects “qualified” applicants. An otherwise qualified individual is one who is able to meet all of a program’s requirements in spite of his handicap; certainly a wheelchair user desiring to utilize mass transit fits this definition. Distinctly different from Davis, where a ruling in her favor would have altered the meaning of the accepted level of training which a nurse must undertake, physical modification to a bus to make it accessible would not change the meaning of public transit service.
DOT appears to agree. In the preamble to the current rule DOT states that there is “no ... dramatic qualitative difference between an inaccessible bus system and an accessible bus system ... [with] lifts.” 51 Fed.Reg. 18,998 (1986). Also, in its 1979 regulations DOT discussed and rejected the points raised by commentators in opposition to the requirement to purchase only accessible new buses. As to the contention that the use of lifts would greatly slow bus service, DOT questioned the magnitude of such a problem. DOT suggested that, given time, the transit systems would gain experience concerning the points on the route most likely to require lift service and could formulate schedules so that “service disruptions or undue slowdowns of service will be minimal.” 44 Fed.Reg. 31,457 (1979).
Regarding safety concerns, DOT stated that the concern about the fit of the wheelchair and the lifts, i.e., the lifts might not be able to lock onto all sizes of wheelchairs, could be alleviated by either improvements in design or remedial safety devices on the existing lifts. With respect to the potential safety hazard in the event of an emergency evacuation, DOT felt that seating accommodations could be designed to minimize any obstruction a wheelchair might present to evacuation of other passengers. 44 Fed. Reg. 31,457 (1979).
The absence of a threat to the safety or other fundamental interests of others if accommodation is made is one additional aspect that distinguishes the position of a handicapped bus rider from that of the plaintiff in Davis.
These features of public transit affected, e.g., increased time at stops to assist wheelchair users and additional safety concerns, hardly represent a fundamental change in the nature of the transportation system. I find factual support in a decision from the Court of Appeals for the Second Circuit. In Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir.1982), the court found that the purpose of public bus service is to provide transportation to the general public. It held that physical barriers which prevent wheelchair users from gaining access to mass transit are “incidental to the design of [buses] ... rather than being integral to the nature of public transportation.” Id. at 653. The court concluded that requiring modifications does not violate the fundamental nature of mass transit.
Rhode Island Handicapped Action Committee v. Rhode Island Public Transit Authority, 718 F.2d at 495, is also distinguishable. In this case, the Court of Appeals for the First Circuit reversed a district court’s order that, under the authority of Davis, the new buses purchased by the Rhode Island Transit Authority be handicapped-accessible. Citing the central message of Davis as a negative one, i.e., § 504 does not impose a duty to engage in affirmative action,5 the court of appeals *1208overturned the order. It disagreed with the district court’s opinion that “there are no qualifications for riding a bus” and concluded instead that because wheelchair users cannot board and ride buses unless the buses are specifically outfitted, in this sense, the mobility-impaired were not qualified to ride ordinary buses.
I note, however, that Rhode Island was decided before the Supreme Court’s amplification of Davis in Choate declaring that unless a significant alteration is implicated, accommodation must be made.
As to the financial burden, a proper consideration under Choate, DOT’s own data supports the conclusion that designing and manufacturing new buses which are wheelchair accessible do not effect a substantial change. According to DOT’s Final Regulatory Impact Analysis (“RIA”), in 1975, the capital cost of adding a lift to a regular transit coach was placed at $10,000, an increased amount to be sure, yet hardly exorbitant considering the benefit of integration to the handicapped and to our citizenry as a whole. RIA, IV-5; App. at A-197. Eighty percent of this amount is subsidized by federal grants. 49 U.S.C. App. §§ 1602, 1604.6
Disabled in Action of Baltimore v. Bridwell, 593 F.Supp. 1241 (D.Md.1984), because of its strong reliance on Rhode Island Handicapped Action Committee, 718 F.2d at 496-97, and APTA v. Lewis, 655 F.2d at 1272, is not persuasive authority-7
I can perceive no clearer example of non-intentional conduct resulting in uneven treatment to the disabled admonished against in Choate and more recently in Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) (disabled veterans challenged regulatory definition of alcoholism as “willful misconduct”), than that which emanates from the exclusion to mass transit caused by physical barriers. This inability deprives the handicapped of spontaneous activity, whether it be of an emergency, business or a pleasurable nature. Although not a purposeful means of exclusion, it is further testimony of the *1209“benign neglect” syndrome which Congress sought to eliminate.
The presumption in favor of strong deference to an agency’s interpretation of its regulations, applicable in instances where Congress has been silent or ambiguous as to its intent, may be overcome by a showing of convincing evidence of a contrary legislative intent. Traynor v. Turnage, 485 U.S. at -, 108 S.Ct. at 1378. Concern for the disabled permeates the legislative history of § 504. The Supreme Court in Choate provides us with a summary of congressional statements dealing with the apathetic attitude towards disabled individuals:
Representative Vanik, introducing the predecessor to § 504 in the House, described the treatment of the handicapped as one of the country’s “shameful oversights,” which caused the handicapped to live among society “shunted aside, hidden, and ignored.” 117 Cong.Rec. 45974 (1971). Similarly, Senator Humphrey, who introduced a companion measure in the Senate, asserted that “we can no longer tolerate the invisibility of the handicapped in America_” 118 Cong. Rec. 525-526 (1972). And Senator Cran-ston, the Acting Chairman of the Subcommittee that drafted § 504, described the Act as a response to “previous societal neglect.” 119 Cong.Rec. 5880, 5883 (1973). See also 118 Cong.Rec. 526 (1972) (statement of cosponsor Sen. Percy) (describing the legislation leading to the 1973 Act as a national commitment to eliminate the “glaring neglect” of the handicapped)....
... Similarly, Senator Williams, the chairman of the Labor and Public Welfare Committee that reported out § 504, asserted that the handicapped were the victims of “[discrimination in access to public transportation” and “[discrimination because they do not have the simplest forms of special educational and rehabilitation services they need....” 118 Cong.Rec. 3320 (1972). And Senator Humphrey, again in introducing the proposal that later became § 504, listed, among the instances of discrimination that the section would prohibit, the use of “transportation and architectural barriers,” the “discriminatory effect of job qualification ... procedures,” and the denial of “special educational assistance” for handicapped children.
Id. at 295-297, 105 S.Ct. at 717-718 (footnotes omitted).
I conclude that if DOT’s regulations, promulgated partially under the authority of § 504, permit physical barriers, which are capable of alteration without change to their fundamental purpose and without undue financial burden, to exclude the handicapped, then the handicapped emancipation legislation represents nothing but hollow rhetoric. Public transit authorities are thereby compelled under § 504 to make reasonable accommodations to their programs, i.e., purchase wheelchair-accessible buses, to fulfill the statute’s goal of integration. Subpart E of the regulations, to the extent it can be construed to the contrary, violates § 504.
B. Urban Mass Transportation Act
I next take umbrage with the plurality’s blanket assertion that the language of § 16(a) of UMTA does not suggest that Congress has mandated mainstreaming. It is somewhat astonishing that the plurality states that UMTA’s “broad and general terms”, Opinion at 1193, cannot be construed as defining a particular policy when the section itself specifically announces a national declaration that “elderly and handicapped persons have the same right as others to utilize mass transportation facilities and services.” 49 U.S.C.App. § 1612(a). The plurality sidesteps this declaration of equal right of utilization and focuses instead on the portion of the statute ordering the Secretary to make “special efforts” in the planning and design of mass transportation facilities and services. Admittedly, the special efforts required are left undefined, but there is no doubt as to what these efforts must accomplish — the equal right of access. I point out also that although the plurality states that these special efforts must ensure effective utilization of services, the statute refers to both facilities and services. Thus, even *1210granting the Secretary discretion to map out the contours of the “special efforts,” he has no such discretion regarding the end of equal opportunity to both mass transportation facilities and services which must be assured. Paratransit only simply does not suffice.
The most persuasive authority for a finding that newly purchased buses must be accessible under 16(a) of UMTA is the language of the regulations themselves. What must be decided is the issue which the plurality declined to address — does the precise language of Subpart C of the final rule, ordering that new facilities be designed in accordance with the needs of the disabled, necessarily conflict with Subpart E’s local option provision. I am satisfied that the language of the entire rule, including Subpart C, is available for review.8
*1212As DOT recognizes in the language of its regulations, transportation facilities and transportation services require different considerations. Subpart C of the DOT final rule reads as follows:
Each facility or part of a facility constructed by, on behalf of, or for the use *1213of a recipient shall be designed, constructed and operated in a manner so that the facility or part of the facility is accessible to and usable by handicapped persons, if the construction was commenced after the effective date of this part; with respect to the vehicles, unless otherwise provided in Subpart D, this requirement is effective for vehicles for which solicitations are issued or which are leased after the effective date of this part.
AM. DISABLED FOR ACCESSIBLE PUBLIC TR. v. SKINNER Cite as 881 F.2d 1184 (3rdClr. 1989)
49 C.F.R. § 27.67 (emphasis added). DOT defines “facility” as “all or any portion of buildings, structures, vehicles, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.” 49 C.F.R. § 27.5 (emphasis added). “Services” are not defined by the regulations.
The parties urge us to address that which the district court left unanswered— do the requirements of new Subpart E regarding accessibility of transportation services forgive compliance with Subpart C’s accessibility requirements for transportation facilities? Since the question has been raised and argued, a response is appropriate. See note 8, supra.
Our opinion in Disabled in America v. Sykes, 833 F.2d 1113 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988), far from operating against ADAPT, is favorable to its position.9 In Sykes, we discussed DOT’s rule-making activity following the court-ordered remand of the 1979 regulations in APTA v. Lewis, 655 F.2d at 1280. In response to APTA, DOT published its 1981 interim rule, which, while not imposing any specific requirements regarding mass transportation, established a system whereby recipients of UMTA funds could engage in special efforts to satisfy their obligations for promoting transportation services to handicapped individuals.
In Sykes, DOT, assuming an amicus role, advanced as a portion of its interpretation of its 1981 regulations that Subpart C, relating to facilities, and Subpart D, relating to services, established separate independent criteria. Further, DOT stated that services and facilities are independent factors and must be evaluated as such and that in order to comply with the regulations and § 504 of the Rehabilitation Act, the requirements set forth in both subparts must be satisfied. Consistent with its position in this matter, DOT argued that the 1981 regulations did not require, as had the pre-AP7!d Subpart E, that mass transportation services be made fully accessible, i.e., no retrofitting requirements. What was mandated was that the recipients of federal funds certify that special efforts to provide transportation were being made.
In Sykes, however, we noted that DOT’s intention was clear — compliance with 49 C.F.R. § 27.77 (Subpart D) regarding accessibility of transportation services, does not release federal recipients from compliance with Subpart C’s requirements regarding the accessibility of transportation facilities. To clarify this point and explain Sub-part D, DOT stated in the preamble to the 1981 regulations:
[Cjompliance with the certification under this subsection shall be deemed compliance with section 504, section 16, and section 165. Compliance in this context refers only to compliance with the obligation of the recipients to ensure the provision of transportation service that handicapped persons can use [and planning for such transportation]. The certificate does not stand for compliance with other requirements....
46 Fed.Reg. 37,490 (1981). Here, in support of its contention that compliance with Subpart E excuses compliance with Sub-part C, DOT makes vague reference to its interpretation that under § 317(c) of the STAA equal services are not required and, therefore, the acquisition of accessible buses is not mandated.
Notably absent and distinct from the regulations under scrutiny in Sykes is an express provision that the new regulations *1214take precedence over other requirements. See 49 C.F.R. § 27.61 (1981). DOT labels this a technical oversight — I find it much more significant. There is no interplay mentioned because Subpart E addresses requirements separate from Subpart C’s mandate that all newly purchase buses be accessible. Any excuse from compliance would be in opposition to congressional intent.
As in Sykes, I would determine that compliance with the special efforts requirements of the Subpart E local option does not constitute a defense to noncompliance with Subpart C’s requirement to purchase accessible buses.10 There is nothing equivocal about Subpart C’s language that new facilities be accessible to the disabled. Subpart C no longer contains the retrofitting requirement which the court in APTA found exceeded the statutory mandate and instead confines its accessibility requirement to new purchases. The minimum service criteria of Subpart E can stand only if read as outlining additional requirements to the “accessible purchase” mandate of Subpart C. By my reading, Subpart E’s discussion of services, although specifically addressed to buses, does not assume the direction of Section C within its outline of minimum services.
At first glance it appears that Subparts C and E need not stand in conflict. Clearly, the option for providing accessible bus service in Subpart E is compatible to the new purchase requirement of Subpart C. Also, the mixed system contemplates compliance with Subpart C. What causes Sub-part E to clash with Subpart C is the option allowing paratransit as the sole means of transportation available to the disabled. Opting for such a system plainly abrogates the new purchase directive of Subpart C.
Electing paratransit as the means for providing transportation to the disabled also violates the mandate of § 16(a) of the UMTA guaranteeing equal rights to services and its intent to eliminate segregation of the mobility-disabled. This statutory encroachment is manifested in the 24-hour reservation restriction allowed by the minimum service criteria for the paratransit option. This time constraint eradicates the right to spontaneous utilization of mass transit services enjoyed by the non-mobility disabled.
I note also that only the “severely disabled” (persons with physical disabilities making them unable to use regular mass transit services) are eligible for paratransit service. In regard to the “transportation handicapped” (persons whose disabilities in any way makes use of transit difficult but not impossible), DOT determined that extension of paratransit eligibility to these persons would be cost prohibitive. DOT emphasized instead that training programs be initiated to assist the transportation handicapped to utilize the mass transit services; however, DOT’s statement in this regard appears to be confined to those suffering from mental disabilities which impair the capacity to ride a bus. For those who experience difficulty in utilizing mass transit due to a mobility impairment, no provision has been made for their transportation needs. 51 Fed.Reg. 19,006 (1986). This deprivation affirms that the accessibility of new facilities must be of paramount concern, since, without purchase of such facilities, an entire segment of the disabled population would be excluded from utilizing mass transit.
C. Federal-Aid Highway Act
I am not in general disagreement with the plurality’s discussion of FAHA, except to the extent that it appears to construe the Act as mandating retrofitting. ADAPT has carefully informed us that retrofitting is not requested since the enormous financial burden imposed by such a requirement was the reason the 1979 regulations were invalidated under APTA.
The confusion concerning the retrofitting requirement, which the plurality indeed ac*1215knowledges is not contemplated by § 105(b), is traceable to the plurality’s equation of mainstreaming with immediate mainstreaming. Opinion at 1195, n. 9. This is evident by the plurality’s conclusion that “[s]eetion 165 thus does not speak to the issue of mainstreaming, but only to new purchases.” Opinion at 1195. Surely the terms “mainstreaming” and “new purchases” are not exclusive — one subsumes the other. The mainstreaming which is requested here can be accomplished by requiring that when local transit authorities purchase new buses, those vehicles must be accessible.
The plurality is, however, persuaded by DOT’s argument that § 105(b) of FAHA does not mandate mainstreaming. The rationale embracing DOT’s interpretation is most unusual. First, the plurality notes DOT’s acknowledgement that FAHA expresses the clear intention of requiring increased accessibility. The plurality then advances an interpretation of the Senate Report accompanying the bill which concludes that although FAHA mandates that programs receiving federal assistance must, to the maximum extent feasible, implement UMTA’s mandate that the elderly and handicapped have the same right to utilize mass transportation systems, FAHA is silent as to what is required of existing systems. Concern for the status of existing systems, which speaks to a retrofitting requirement — a measure beyond the requested relief — is clearly inappropriate.
The plurality next astonishingly acknowledges that, under FAHA, funds for the purchase of new facilities, specifically new buses, must be spent on facilities which make the buses accessible! In support, the plurality references Congressman Biaggi’s pointed remarks which concluded with the proclamation that:
My amendment today, will put a stop to future expenditures by the Department of Transportation for equipment and facilities that are inaccessible to the elderly and handicapped. We cannot continue to abide by the doctrine of separate and unequal facilities.
120 Cong.Rec. 19,851 (1974). Thus, the only factor which saves the plurality opinion from adopting my conclusion that newly purchased buses must be accessible under FAHA is its contention, which I dispute, that the requirements of Subpart C are not before us.
D. Surface Transportation Assistance Act
I have already reached a conclusion opposite of the plurality concerning the congressional aim of the transportation statutes. My rationale for determining that the goal of integration to the maximum extent feasible need not be repeated. I do, however, find it necessary to point out that § 317(c) of STAA orders only that regulations be promulgated in regard to transportation services and not transportation facilities. We view this as affirmation that Subpart C’s mandate that new facilities be accessible, an order which remained unchanged since 1979, means exactly that and cannot be diminished in any respect by the local option provision of Subpart E.
The plurality argues that the legislative history of § 317(c) embodies a strong preference for local discretion in the implementation of the transportation services offered to the mobility-impaired. I question the plurality’s reliance upon the statements of Senators Exon and McClure made in the context of unenacted legislation, but more importantly, my reading of the regulations promulgated pursuant to § 317(c) does not foreclose the offering of paratransit services and the local authorities’ discretion in implementing this type of service. Rather, paratransit as the sole means of transportation available to the mobility impaired is not an acceptable option under the statutes.
III.
Conclusion
I caution those readers who may view this dissent as an expression of compassion for the mobility-impaired that it must instead be understood that congressionally-mandated equality of opportunity to utilize *1216mass transit, not sympathy, is the basis of its rationale.
Our task today is not to sort through empirical data to determine how DOT is to accomplish accessibility. In this regard, reliance on statistics concerning past frequency of utilization of paratransit v. wheelchair accessible buses to justify the paratransit-only option is tantamount to rewarding past failure to accommodate the handicapped.
Accessibility to mass transportation facilities and services is the goal which Congress has addressed and has decided must be implemented. I acknowledge DOT’s expertise to implement the goal of the statute through its regulatory process and I am not, by a finding of requiring accessibility, cavalier on the issue of cost consideration. What I would instruct DOT to do on remand from the district eourt is to find a reasonable way in which a mixed system, involving the purchase of new buses which are accessible to the handicapped and para-transit with minimum service criteria consistent with the statutory duty of equal access, be implemented so as to obviate an onerous financial burden on local transit authorities.
. I am in general agreement with the plurality’s recitation of the history of the statutes and regulations but pause to comment upon the context in which it quotes the statement that HEW’s guidelines should not be construed “'to preclude in all circumstances the provision of specialized services as a substitute for, or supplement to, totally accessible services_’ 43 Fed. Reg. at 2134." Opinion at 1188. The import of this sentence is understood only in the framework of HEW’s entire remark:
First, section 504, like other nondiscrimination statutes, prohibits not only those practices that are overtly discriminatory but also those that have the effect of discriminating. And it is equal opportunity, not merely equal treatment, that is essential to the elimination of discrimination on the basis of handicap. Thus, in some situations, identical treatment of handicapped and nonhandicapped persons is not only insufficient but is itself discriminatory. On the other hand, separate or different treatment can be permitted only where necessary to ensure equal opportunity and truly effective benefits and services. Federally assisted programs and activities must thus be provided in the most integrated setting appropriate to the needs of participating handicapped persons.
43 Fed.Reg. 2134. It is misleading for the plurality to utilize only a selected portion of HEW’s rationale to imply that paratransit only could satisfy the integrative mandate of § 504. Instead, HEW’s guidelines made it imperative that equal opportunity, an end clearly not satisfied by paratransit alone, be implemented by the various federal agencies’ regulations.
. I respond here to the plurality’s reference that in Disabled in Action in Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988), we have previously characterized § 504 as ambiguous. My discussion here obviously does not repudiate this belief. Sykes, however, is distinguished to the extent that, here, unlike Sykes, in addition to § 504, we also review the regulations under the precise language of UMTA, FAHA, and STAA wherein the mandate of equal accessibility is obvious.
. At oral argument on rehearing of this matter, ADAPT informed the court that the cost of a wheelchair lift on a new bus represents 5-7% of the capital cost of the vehicle. See also note 4, infra and Diss.Op. (Mansmann), at 1208.
. To the extent that the language of APTA regarding the onerous financial burden of the 1979 regulations might be construed as attributable to the new bus accessibility requirement, I maintain that this mandate was not the impetus for invalidation of the 1979 regulations. In APTA, the court noted that the additional cost to make a new bus accessible was $12,000.00 to $15,000.00. In regard to this amount, the court did not opine that this represented an extraordinary expense; rather, its comment on the expenditure was couched in its concern that the federal government was under no obligation to continue its 80% subsidization of this cost. APTA v. Lewis, 655 F.2d 1272, 1276 n. 6.
. Justice Marshall in Choate commented upon the use of the term "affirmative action” in the Court’s Davis decision.
In Davis, we stated that § 504 does not impose an "affirmative-action obligation on all recipients of federal funds.” 442 U.S., at 411 [, 99 S.Ct. at 2369-70]. Our use of the term "affirmative action” in this context has been severely criticized for failing to appreciate the difference between affirmative action *1208and reasonable accommodation; the former is said to refer to a remedial policy for the victims of past discrimination, while the latter relates to the elimination of existing obstacles against the handicapped. See Note, Accommodating the Handicapped: The Meaning of Discrimination Under Section 504 of the Rehabilitation Act, 55 N.Y.U.L.Rev. 881, 885-886 (1980); Note, Accommodating the Handicapped: Rehabilitating Section 504 After Southeastern, 80 Colum.L.Rev. 171, 185-186 (1980); see also Dopico v. Goldschmidt, 687 F.2d 644, 652 (CA2 1982) ("Use of the phrase ‘affirmative action' in this context is unfortunate, making it difficult to talk about any kind of affirmative efforts without importing the special legal and social connotations of that term.”). Regardless of the aptness of our choice of words in Davis, it is clear from the context of Davis that the term “affirmative action" referred to those "changes,” “adjustments,” or “modifications” to existing programs that would be “substantial,” 442 U.S., at 410, 411, n. 10, 413 [99 S.Ct. at 2369, 2370 n. 10, 2370,] or that would constitute "fundamental alteration[s] in the nature of a program ...,” id., at 410, [99 S.Ct. at 2369] rather than to those changes that would be reasonable accommodations.
469 U.S. 287, 300 n. 20, 105 S.Ct. 712, 720 n. 20.
. The fact of federal subsidy does not appear to have been considered by the Supreme Court in its Davis decision. When discussing the possibility that technology may one day lessen the financial burden of implementing equal opportunities to the disabled, the burden imposed upon a State was the focus of the Court's concern. 442 U.S. at 412, 99 S.Ct. at 2370.
. I note a more general criticism of reliance on APTA, Rhode Island and Bridwell. While it is accurate that these cases hold that § 504 does not mandate mainstreaming, it is crucial to realize that the decisions discussed only § 504.
In APTA, the matter was remanded to the district court to determine whether UMTA, FAHA or STAA were enforced by the regulations. Likewise, because the district court in Rhode Island did not consider the requirements of the specific transportation statutes, their import was not discussed by the court of appeals.
In Bridwell, the action was brought under only § 504 and § 16(a) of UMTA and, except for a very limited portion, the UMTA count was dismissed on the defendant’s summary judgment motion.
Thus, while the plurality correctly states that "every federal court that has addressed the question whether mainstreaming in public transit is required has concluded that § 504 does not mandate mainstreaming,” Opinion at 1193, the discussions in APTA, Rhode Island and Bridwell are deficient because of their silence on the implications of UMTA, FAHA and STAA.
. I find it imperative to counter specifically the plurality’s position that Subpart C, not having been pled nor significantly argued, is not before us. Opinion at 1195, n. 8; 1196-1198.
I begin with ADAPT’s amended complaint. The complaint's very first paragraph requests "that the court vacate certain provisions of a final rule_” App. at A-384. This language does not imply that only certain portions of the rule are to be considered; rather, it is the entire rule, of which Subpart C is an integral element, which must be reviewed.
Second, the plurality notes that neither ADAPT nor EPVA has requested declaratory or injunctive relief with respect to Subpart C. I first observe that there is no reason why such a specific request is necessary. Subpart C, though part of the final rule at issue, was left unchallenged. If Subpart E is declared invalid, as I hold should be done, Subpart C remains intact. No affirmative request by ADAPT or EPVA is required to have Subpart C, which, unlike Sub-part E, has remained consistent in its language, continue to operate as it stands.
Although I conclude that requesting a declaration from the district court that Subpart C’s mandate of full accessibility of facilities is left unchanged is superfluous, I am not at all convinced that such relief was not, in fact, prayed for by ADAPT. In its amended complaint, ADAPT asked the court, in part, to:
Issue a writ of mandamus, a preliminary and permanent injunction, a declaratory judgment, and any other equitable relief necessary to: (a) declare invalid and vacate [Subpart E] of defendant’s final rule concerning "Non-discrimination on the Basis of Handicap in Programs Receiving Financial Assistance from the Department of Transportation...."
App. at A-420.
Arguably, a declaratory judgment or other equitable relief necessary to declare invalid Sub-part E would entail an implicit declaration that Subpart C’s provision that all newly purchased buses be accessible remains viable.
Further supposition as to what ADAPT was requesting is rendered unnecessary, however, by the very clear conclusion in the Reply Memorandum of Plaintiffs’ ADAPT, et al., In Support Of Their Motion For Summary Judgment And In Opposition To Defendant’s Cross-Motion For Summary Judgment:
For the foregoing reasons, and for all the reasons stated in our opening memorandum, the Motion of Plaintiffs ADAPT, et at, for summary judgment should be granted and a decree entered which vacates [Subpart E], declares that [Subpart C] independently requires that all new vehicles be accessible to handicapped persons, and vacates [Subpart EJ. In the event that the declaratory judgment regarding [Subpart C] is not issued, the decree should remand [Subpart E] to the Secretary with instructions to revise that section, within thirty days, to insure that handicapped persons be provided effective and integrated transportation services by DOT grantees, and, in the interim, retain in effect the service criteria contained in [Subpart E].38
38 DOT contends that "the only course of action available" to this Court is “to vacate all of the provisions of the 1986 regulation and remand the entire matter to the Secretary for further consideration.” DOT Mem. at 150. That, of course, is contrary to Davis v. Romney, 490 F.2d 1360 (3d Cir.1974), and the other authorities cited in our opening memorandum at 122-24. Maintaining the 1986 standard as an interim measure (should the court not accept our argument regarding [Subpart C]) would be more equitable than vacating that standard entirely (thus reverting the country back to the completely standard-less 1981 rule), especially since there is no contention by anyone in this case that the 1986 rule goes too far. Alternatively, should the Court agree that its only remedy is to vacate, then it should also vacate the 1981 rule (thus reinstating the 1979 requirements, at least on an interim basis), since the 1981 rule suffers from the same deficiencies (but even more egregious) as those of the 1986 rule.
App. at A-665-66 (emphasis added).
Although DOT’s summary judgment submissions were not included in the joint appendix, it is obvious that it felt the need to respond to ADAPT’s argument concerning Subpart C, evidenced by its request, in its memorandum to the district court, that all the provisions of the 1986 rule be vacated and remanded to the Secretary. App. at A-666, n. 38.
Surely, in tandem, the prayer for relief in the complaint and the conclusion in the summary judgment reply brief sufficed to squarely place the issue of Subpart C before the district court. In this sense I agree with the opinion filed by *1211Judge Greenberg expressing serious doubt that a pleading error, or, as I view it, a minor procedural inexactitude, would preclude the important right pursued by ADAPT and EPVA. Diss.Op. (Greenberg), Opinion at 1218.
Third, it is simply not true that argument focusing on the import of Subpart C was not significantly advanced before the district court. In the Memorandum of Plaintiffs’ ADAPT, et al., In Support Of Their Motion For Summary Judgment, ADAPT argued its applicability in a footnote:
4 [Subparts C & D] remain a part of the current DOT rule. However, the effect of the actions of the Secretary in promulgating [Sub-part E] of the challenged rule has been to nullify the requirements of those previous sections.
In Disabled in Action of Pennsylvania v. Sykes, No. 86-2316 (E.D.Pa. Dec. 30, 1986) (available on Westlaw) [1986 WL 15020] the court construed the new construction and alteration provisions of [Subpart C], and ruled that so long as the grantee met the cost limitations of the DOT rule, the requirements of [Subpart C] did not have to be met. Sykes did not address the validity of the DOT rule, but merely construed it in such a way that nullified the effect of [Subpart C], In a brief filed in a different case, EPVA v. SEPTA, No. 85-4460 (E.D.Pa.), the Secretary disagreed with the ruling of the Sykes court, and agreed with plaintiffs’ construction:
The plaintiffs state that the new construction and alteration of subway stations is governed by [Subpart C] which is not subject to the spending limitation specified in the Appendix to the 1981 regulations. While this statement is correct, it has no relevance to the pending Rule 59(e) motion.
Federal Defendants’ Opposition to Plaintiffs’ Rule 59(e) Motion to Alter or Amend Judgment (served Dec. 30, 1986), at 2 n. 3 (emphasis added). Especially in light of this stated position of the Secretary, and the ambiguity of the rule, it is critical that the Secretary be ordered to clarify that all new or newly altered facilities must be accessible.
App. at A-501 (emphasis in original).
ADAPT also argued in the text of its summary judgment brief that the requirements of Subpart C must be clarified:
[Subpart C] was never explicitly abrogated by either the 1981 rule or by the challenged rule. Indeed the Secretary recently has asserted in the case of EPVA v. SEPTA that [Subpart C] remains in full force. See supra p. 69 note 49. However, there is sufficient ambiguity in the rule that a DOT grantee, the City of Philadelphia, was recently able to persuade the court in Disabled in Action of Pennsylvania v. Sykes, No. 86-2316 (E.D.Pa. Dec. 30, 1986) (available on Westlaw) that [Subpart C] conflicts with the other provisions of the rule, and therefore, can be viewed as abrogated. Moreover, numerous commenters on the challenged rule specifically requested the Secretary to explicitly clarify this issue, but she refused to do so.
In view of the position the Secretary has taken in the EPVA v. SEPTA case, in view of the fact of record that insuring accessible new construction or alterations would entail only de minimus burdens for DOT grantees, and in view of the ambiguity of the current rule as evidence by the Disabled in Action v. Sykes decision and by the comments in the rulemak-ing docket, it would be irrational, arbitrary and capricious for the Secretary to refuse to change the rule to provide unambiguously that all new and newly altered facilities must be accessible.
App. at A-541-43 (emphasis in original) (footnotes omitted).
Next, referring again to the Reply Memorandum In Support of ADAPT's Motion for Summary Judgment and in Opposition to DOT’s Cross-Motion for Summary Judgment, ADAPT devoted an entire section to the applicability of Sub-part C:
1. Since the Secretary Now Concedes that the Requirements of Subpart C of the DOT Rule Stand Independently, and Since Subpart C Already Requires that All New Buses Be Accessible, There is No Basis for the Secretary’s Failure to Include that Same Requirement In the New Subpart E.9
App. at A-618. After quoting Subpart C, ADAPT continued:
On July 15, 1987, subsequent to the filing of our opening memorandum in this action DOT filed an amicus curiae brief in the Court of Appeals in Disabled In Action of Pennsylvania v. Sykes, No. 87-1021 (3d Cir.). A copy of that brief is attached as Appendix A. In point II of its Sykes amicus brief, DOT expressly acknowledges that the requirements of Subpart C, including the requirement that all new bus purchases be for accessible vehicles, sets forth mandates that are independent of the restrictions of the 1986 rule, i.e., the new Subpart E. No other regulatory requirement, in Subpart E or elsewhere, vitiates the mandate of [Sub-part C], As the Secretary now explicitly concedes (amicus brief at 9), "the more general program requirements concerning the accessibility of facilities of all transportation modes, including mass transit, set forth in Subpart C, were not diminished in any way” by any other subpart of the rule.
Since [Subpart C] of the DOT rule already independently requires that all new vehicles be accessible, including the same requirement as part of [Subpart E] would impose no additional burden on any transit system. Therefore, there is no basis for the provisions of [Subpart E] that permit transit authorities to continue to purchase inaccessible buses.
App. at A-618-19 (footnotes omitted).
It is true that in deciding the summary judgment motion, the district court did not address the interplay between Subparts C and E. Nonetheless, a similar silence by the district court on the question of the statutory requirements of FAHA does not cause the plurality such conster*1212nation. "Although ADAPT raised the issue below, the district court reached its conclusion that Congress has not ordered mainstreaming of the disabled without commenting on section 105(b) of the Federal-Aid Highway Act. We hold what is implicit in the district court’s silence, that the Federal-Aid Highway Act does not speak to whether mainstreaming is required.” Opinion at 1194. As a preface to this statement, the plurality remarks that FAHA’s applicability was raised below. Thus, should not the same consideration apply to the Subpart C question?
Fourth, ADAPT’s Subpart C position was unquestionably argued in its main brief on appeal to us. In labeling ADAPT’s efforts in pressing the Subpart C argument as insignificant, the plurality refers solely to ADAPT’s statement that only the validity of Subpart E is challenged by the appeal. The plurality neglects to finish ADAPT’s discussion. Immediately following the sentence quoted by the plurality, ADAPT noted the express and independent provisions of Sub-part C and quoted the section in full. ADAPT Br. at 27. ADAPT then referenced the argument advanced by DOT, contrary to its position here, in Disabled in America v. Sykes, 833 F.2d 1113 (3d Cir.1987):
In 1987, DOT filed an amicus curiae brief (A-667) with this Court in DIA v. Sykes, 833 F.2d 1113 (3d Cir.1987). In that brief, DOT expressly acknowledged that the requirements of subpart C, including the requirement that all new bus purchases be for accessible vehicles, set forth independent mandates. No other regulatory requirement, in subpart D or E or elsewhere, vitiates the mandate of [Sub-part C], As DOT informed this Court in Sykes, when former subpart E was deleted in 1981 "the more general program requirements concerning the accessibility of facilities of all transportation modes, including mass transit, set forth in subpart C, were not diminished in any way” (A-683).
In Sykes, this Court held flatly that the less rigorous requirements of DOT’s rules “regarding accessibility of transportation services, does not release federal fund recipients from compliance with subpart C’s requirements regarding the accessibility of transportation facilities.” 833 F.2d at 1118.
Of course, if a transit system chooses not to purchase any new buses, it need not comply with anything in subpart C, and in that event need only comply with the service requirements of subpart E. However, subpart E cannot, as it purports to do, vitiate by implication subpart C’s independent requirement, promulgated by DOT in 1979 and still in effect, that federal assistance for new bus purchases be spent on accessible facilities.
Thus, contrary to the lower court’s holding, § 504's plain language, its legislative history, the caselaw construing it, and the administrative construction of DOT itself all support the requirement that when new vehicles are purchased with DOT assistance, they must be accessible.
Id. at 28-29 (emphasis added).
The only other Subpart C reference by ADAPT in its main brief cited by the plurality is ADAPT’s remark included above that if local transit authorities do not purchase new buses, they need not comply with Subpart C. Opinion at 1197. The plurality seems to view this sentence as a concession as to Subpart C’s applicability, when it is merely a statement of the obvious.
Again, in its reply brief to this court, ADAPT aggressively reiterates its Subpart C position. Although the plurality notes the presence of the argument in the reply brief, it shortchanges the amount of pages in the brief outlining the argument. While the plurality concedes that a two-page discussion is included, the argument actually spans five pages. I spare the reader further quotation; suffice it to say that the Subpart C argument is an integral component of the brief. ADAPT Reply Br. 16-20.
I also note that DOT found it necessary to respond to the implications of Subpart C in its main brief to us, DOT Br. at 27-28, n. 6, the merits of which I later discuss. Diss.Op. (Mans-mann), at 1213.
Finally, on rehearing this case at oral argument, Judge Becker asked the parties to respond to whether the issue of the interplay between Subparts C and E had been raised before the district court. ADAPT claimed that the issue of Subpart C was presented to the district court through its pleading of § 504. ADAPT then explained that Sykes was not decided until after the complaint was filed and that is the reason why the import of C was not previously stressed.
More telling was DOT’s answer to Judge Becker's questioning. Initially, DOT informed Judge Becker that his point that the effect of Subpart C of the rule was not before the district court might be a fair interpretation of the district court proceedings. This response was severely undercut, if not completely abrogated, however, by a subsequent assertion by DOT. When Judge Becker asked DOT why the court could not decide this matter without any reference to Sub-part C, DOT countered that such a resolution was not acceptable because the interplay between C and E was a question of law, critical to the outcome of the case.
. I do not today depart in any fashion from our prior holding in Sykes. To the contrary, as in Sykes, I am relying on the precise requirements of the DOT’s regulations, i.e., Subpart C’s crystal-clear mandate that newly purchased buses be accessible.
. I am aware that the regulations at issue in Sykes are not identical to the ones at issue today and I caution that I am not relying on Sykes in the context of issue preclusion. I, instead, utilize the language in Sykes as demonstrating that services and facilities represent two distinct areas to be evaluated.