concurring and dissenting.
This appeal and cross appeal present three questions. The first question is whether Congress has mandated mainline bus accessibility, which I would answer in the negative, as does the plurality. The second question is whether the legislation prohibits the Secretary of Transportation from establishing a safe harbor provision which is expressed in terms of a percentage of applicable spending. As the plurality, I would conclude that the Secretary has the discretion to promulgate regulations with such a safe harbor provision.1 Thus I join in Parts I and II and all of Part III of the plurality opinion except for Parts 111(A)(3) and 111(A)(5). I write separately on the issues raised in these portions of the plurality opinion.
The third and final question is whether the particular percentage figure that the Secretary adopted for the safe harbor provision is arbitrary and capricious. On this point, I must dissent, inasmuch as I conclude that the three percent figure is not arbitrary and capricious, but has substantial support in the rulemaking record.
I. THE FEDERAL-AID HIGHWAY ACT AND SUBPART C OF THE REGULATIONS
The plurality states that the Federal-Aid Highway Act “arguably requires that ... new buses and rolling stock be accessible.” Opinion at 1195. Given the plurality’s conclusion that “neither in the express language or the legislative history of these statutes has Congress expressly mandated mainstreaming or indicated an intention to do so,” Opinion at 1198, I cannot understand this characterization of the Federal-Aid Highway Act.
Surely, the plurality cannot be suggesting that while retrofitting to accomplish mainstreaming is not required, the prospective purchase of only accessible buses is mandated to produce mainstreaming. First, American Public Transit Ass’n (APTA) v. Lewis, 655 F.2d 1272, 1278 (D.C.Cir.1981), in deciding that retrofitting was not required, at most, left the prospective purchase issue open until today. Second, in light of APTA, the complaints which initiated these actions sought only to require that newly purchased buses be accessible — no one has argued in this case that retrofitting is required. Consequently, by suggesting that Congress has required that only accessible buses be newly purchased, the plurality seems to take the position that under the current law, eventually mainstreaming will be mandated. That is, as *1217nonaccessible buses are replaced by new buses which Congress has mandated be accessible, all transit operators will eventually have completely accessible fleets. When the fleets thus become accessible, mainstreaming will have been fully accomplished. In light of this result, the plurality cannot succeed in presenting accessibility and mainstreaming as separate issues.
In short, I believe that the plurality misunderstands the import of section 165(b) of the Federal-Aid Highway Act. Section 165 must be read as a whole. Section 165(a) expressly sets standards for buses stating: “The Secretary of Transportation shall require that buses acquired with Federal financial assistance under [specified legislation] meet the standards prescribed by the Administrator of the Environmental Protection Agency under section 202 of the Clean Air Act, and under section 6 of the Noise Control Act of 1972_” 28 U.S.C. § 142 note (1982) (citations omitted) (emphasis added). This subsection does not address the accessibility issue at all. Section 165(b), in contrast, expressly sets standards for projects, facilities, and services rather than buses stating:
The Secretary of Transportation shall require that projects receiving Federal financial assistance under [specified legislation] shall be planned, designed, constructed, and operated to allow effective utilization by elderly or handicapped persons who ... are unable without special facilities or special planning or design to utilize such facilities and services effectively. The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons.
Id. (citations omitted) (emphasis added).
It is clear that the only portion of this legislation that speaks to the issue of accessibility addresses that issue from the perspective of programs and projects rather than individual buses. Consequently, a program or project that provided for para-transit service would comply with this requirement. The Federal-Aid Highway Act does not provide any support for the contention that Congress has mandated that newly purchased buses must be accessible.
The plurality observes that 23 U.S.C. § 142(a)(2) includes the purchase of new buses within the definition of a project. “[T]he Secretary may ... approve as a project on the Federal-aid urban system ... the purchase of buses.” 23 U.S.C. § 142(a)(2). This does not state that each and every bus so purchased must be accessible in the fashion that section 165(a) requires that all the buses comply with environmental standards. Instead, only “effective utilization,” see section 165(b), by mobility impaired individuals, from the perspective of the whole project or program is mandated. I cannot conclude that this prohibits the purchase of a package comprising both nonaccessible buses and fully accessible paratransit vans.
Section 165(b) of the Federal-Aid Highway Act was last amended on January 4, 1975. See Pub.L. No. 93-643, § 105(b), 88 Stat. 2281, 2283 (1975). Consequently, this legislation was in its current form during the many revisions of these regulations and the surrounding litigation. I find it unusual that until today no court expressed the opinion that section 165(b) required the purchase of only accessible buses. At most, several courts have suggested that section 165(b) could arguably serve as the basis for DOT regulations requiring such purchases.
Moreover, as the plurality’s opinion indicates, Congress has enacted subsequent legislation the text and debate of which assumes that the Federal-Aid Highway Act does not mandate that all newly purchased buses be accessible. The argument that the Federal-Aid Highway Act required the purchase of only accessible buses ignores the subsequent enactment of the Surface Transportation Assistance Act of 1982, Pub.L. No. 97-424, § 317, 96 Stat. 2097, 2153-54, and the legislative debate accompanying that enactment that the plurality summarizes in Part 111(A)(4) of its opinion.
*1218In Part 111(A)(4) the plurality quotes cosponsor Senator Cranston as stating, in 1982, that “I recognize that is not now feasible to gain approval of legislation that would provide a full guarantee of eventual accessibility.” Opinion at 1195 (quoting 128 Cong. Rec. at 30,824). The eventual accessibility that Senator Cranston was discussing was the mainline accessibility as transit operators replaced their fleet of inaccessible buses with new, accessible buses; he was not discussing a phase-in including retrofitting. Implicitly, he was acknowledging that under his view of the prior statutes, Congress had not already mandated that new buses need be accessible. Senator Cranston was not alone; no court has held that Congress has required that all newly purchased buses must be accessible.
Not only were congressmen unaware that the Federal-Aid Highway Act had the effect attributed to it today, interested litigants and the courts have missed the point. Accepting the plurality’s interpretation of section 165(b) implicitly requires that the court take the position that the plaintiffs in Rhode Island Handicapped Action Committee v. Rhode Island Public Transit Auth., 718 F.2d 490 (1st Cir.1983), and Vanko v. Finley, 440 F.Supp. 656 (N.D. Ohio 1977), failed in their actions to obtain a declaration that federal law mandated that only accessible buses be purchased because they some how overlooked the Federal-Aid Highway Act.
No court has held that Congress has required that all newly purchased buses must be accessible. The plurality’s dicta comes too close to making such a controversial announcement for me to join its opinion. Ultimately, however, the plurality agrees that the Federal-Aid Highway Act does not mandate mainline accessibility, in that, it does not prohibit transit operators from satisfying their obligation to provide service to mobility impaired individuals solely through paratransit.2
Having determined that neither federal legislation nor Subpart E of the regulations requires mainstreaming, the plurality nonetheless raises the issue of whether Subpart C of the regulations mandates that all newly purchased buses be accessible. See Opinion at 1195 n. 8, 1196-98. The plurality expressly recognizes that any statement with regard to the effect of Subpart C is dictum. See Opinion at 1196-97. I cannot join in the view expressed in the plurality’s dictum that Subpart C of the regulations may require that all newly purchased buses be accessible since the dictum may be understood to undercut the decision that the statutes and regulations do not mandate mainstreaming. Inasmuch as the court today holds that local transit operators who receive federal funds need not provide service to mobility impaired individuals by operating accessible buses, the dictum that the “acquisition of buses without lifts may be in violation of the transportation acts and Subpart C,” Opinion at 1197, undermines that decision. It is no answer to say that although newly purchased buses must be accessible, the transit operator *1219need not purchase any new buses, see id. at 1197, since this ignores the fact that buses have a limited lifespan and that as they are replaced the transit operator will be forced to purchase only accessible buses.
The plurality’s dictum would impose Sub-part C’s requirement that newly purchased buses be accessible to the handicapped without allowing local authorities to use the exception to Subpart C that is contained in Subpart E. This rejects the Secretary’s interpretation of the DOT regulations.3 Giving appropriate deference to the Secretary’s interpretation harmonizes my position today with my joining in the opinion of Judge Mansmann in Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988).
In Sykes we deferred to the Secretary’s interpretation of DOT’s own regulations. See id. at 1117-19. Inasmuch as the Secretary stated that compliance with Subpart D of the regulations did not excuse an independent obligation to comply with Subpart C we properly adopted that construction. When Secretary Dole promulgated the new regulations of Subpart E she explained that compliance with Subpart E of the regulations did excuse compliance with Subpart C.4
Secretary Dole stated: “Even if a recipient chooses to comply [with Subpart E] through bus accessibility, every new bus need not be accessible to wheelchair users. Only those buses needed to meet service criteria must be accessible.” 51 Fed.Reg. 18,998 (1986); see also id. at 19,004. This quote expressly asserts that all newly purchased buses need not be accessible. Only a sufficient quantity of newly purchased buses need be accessible so as to provide the transit authority with a fleet capable of meeting the applicable service criteria. Thus, even if the transit authority elected to provide accessible bus service it would not be prohibited from purchasing some inaccessible buses provided that it purchased enough accessible buses to meet the service criteria. Consequently, to the extent that Subpart C would require that all newly purchased buses be accessible it is clear that the Secretary’s position, at the time of the introduction of Subpart E, does not apply this requirement independent of, and in addition to, Subpart E.
Secretary Dole’s successor has brought that interpretation to the attention of this court. See Brief for James Burnley, Secretary of the United States Department of Transportation at 27-28 & n. 6. As in Sykes I would defer to the Secretary’s interpretation of these regulations.
Moreover, on my independent analysis of the regulations I would reach the same result. I observe that Subpart E was drafted long after Subpart C. Consequently, I would find that Subpart E was designed to take precedence over the earlier regulations. Subpart D, which was construed in Sykes, was drafted contemporaneously with Subpart C. Also, Subpart E is specifically directed to bus transportation, see 49 C.F.R. § 27.81 (1988), while the more general regulations of Subpart C govern “all programs of the Department of Transportation to which section 504 is applicable,” 49 C.F.R. § 27.61 (1988), including transportation by air, rail, and bus. Thus, I would find that the more specific regulations of Subpart E superceded the general provisions of Subpart C. Finally, in this respect I point out that the dedicated and capable attorneys who represented the plaintiffs in this matter surely cannot be held to have failed in their efforts to obtain accessible buses because of a pleading failure.5
*1220II. THE THREE PERCENT FIGURE IS VALID
As the plurality’s examination of the relevant statutes demonstrates, Congress delegated broad powers to the Secretary to promulgate regulations detailing substantive standards for handicapped services which would balance the goals of preserving local discretion, avoiding the imposition of unduly burdensome costs, and ensuring adequate transportation services for the handicapped. In its analysis the plurality cites the deferential standard of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 11, 104 5.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984). See Opinion at 1191, 1193, 1198, 1200. Nonetheless, the plurality concludes that the record did not show a rational basis for imposition of the 3% figure. The plurality fails to consider the regulatory scheme as a whole and, as demonstrated herein, the rulemaking record fully supports the Department of Transportation (DOT) regulations and the Secretary’s interpretation of those regulations.
A. The Regulations Must Be Considered As A Whole
The plurality seems to consider the three percent figure contained in 49 C.F.R. § 27.97 (1988) in isolation from the remainder of Subpart E. As a result the plurality underestimates the minimum expenditures necessary to obtain shelter in the safe harbor.
It appears that the plurality underestimates the spending level that is required of a transit operator seeking shelter in the safe harbor by failing to consider the “eligible expenses” that may be counted toward the safe harbor figure. First, the regulations provide that only expenditures “specifically to comply with the requirements of this subpart,” 49 C.F.R. § 27.99 (1988), are eligible expenses. Thus the cost of providing paratransit or accessible bus service to certain users would not be an eligible expense.6 Second, the regulations allow only the “incremental costs”, 49 C.F.R. § 27.99(b)(2), (4)-(6) (1988), attributable to compliance as eligible expenses. Thus, the language of the regulations suggests that only the portion of cost attributable to lift equipment and other such features would be a qualifying expenditure when a recipient purchased a new, accessible bus; the total cost of the bus could not be considered. See 49 C.F.R. § 27.99(b)(2) (1988). Third, the regulations define as an eligible expense in the case of the “purchase of vehicles” only that portion which is “annualize[d] over the expected useful life of the item.” 49 C.F.R. § 27.99(d) (1988). This language suggests that a recipient that purchases a bus with a ten year lifespan can only count one tenth of the cost toward the three percent figure.7
*1221An example combining the apparent effect of these three limitations should serve to demonstrate how a recipient that spends only the minimum sum to qualify for the safe harbor would, nonetheless, be spending considerable sums to comply with the substantive standards of the regulations. If a transit authority purchased a $100,000 accessible bus for use on its scheduled routes, and if only $10,000 of the cost was directly attributable to its accessible features, and if the bus had a ten year life span, then the purchase of this $100,000 bus would only count as $1000 for purposes of reaching the minimum level of expenditure required to obtain shelter in the safe harbor in the year of purchase. This example demonstrates how the actual funds spent on accessibility may be more than a hundred-fold increase over the sum apparently considered by the plurality.8
Had the plurality considered the actual size of the safe harbor provision by delving below the three percent figure and examining the expenses which the regulations allow to be counted toward that figure, I cannot conclude that they would have held the three percent figure invalid. Even had the plurality considered the regulations as a whole thus properly calculating the size of the safe harbor provision, I would dissent nonetheless inasmuch as the rulemak-ing record directly contradicts the plurality’s assertions and requires that we uphold the three percent figure.
B. The Rulemaking Record Supports the Three Percent Figure
The plurality’s conclusion largely ignores the Secretary’s efforts to comply with the statutory mandate to balance competing factors. The Secretary’s regulations define minimum service criteria, 49 C.F.R. § 27.95 (1988), for service to mobility impaired individuals.9 The minimum service criteria establish standards requiring broad eligibility, comprehensive availability, and reasonable fares. The 3% safe harbor provision is designed to ensure that these criteria do not impose unreasonable cost burdens in excess of the requirements of section 504 of the Rehabilitation Act of 1973. The Secretary, citing APTA, 655 F.2d 1272 (D.C.Cir.1981) (invalidating the Secretary’s 1979 regulations as exceeding the authority granted by § 504 by ordering compliance regardless of cost), explained that, “the failure to include an undue burdens provision ... could lead to judicial invalidation of the regulation or reversal of a particular action taken pursuant to the regulation.” 51 Fed.Reg. 18,996 (1986). The safe harbor accordingly provides a quantifiable limit on mandated compliance costs, one that, consistent with the requirements of section 504, is a reasonable proportion of a transit program’s operating budget.10
Contrary to the plurality’s view, however, the particular safe harbor provision at issue here does not eviscerate the minimum service criteria or sanction inadequate service. The record indicates that cities with a population over one million can meet the substantive standards of Subpart E at a cost lower than the minimum sum necessary to qualify for the safe harbor regardless of whether they employ a program of *1222user subsidies enabling handicapped persons to purchase specialized van or taxi services from private providers, directly provide paratransit services themselves, or choose to mainstream mobility impaired individuals on a fleet of buses in which half the buses 11 are accessible to mobility impaired individuals. See 51 Fed.Reg. 19,012 (1986).
The record indicates that cities with a population between 250,000 and 1,000,000 can meet the substantive standards of Sub-part E at a cost lower than the minimum sum necessary to qualify for the safe harbor regardless of whether they employ a program of user subsidies enabling handicapped persons to purchase specialized van or taxi services from private providers or choose to mainstream mobility impaired individuals on a fleet of buses in which half the buses are accessible to mobility impaired individuals. See id. Only cities of this size that choose to provide directly paratransit services will fail to meet at least one of the substantive standards if they rely on the safe harbor provision. See id.
Thus the plurality is incorrect in stating that “cities of less than one million people in which the transit authorities implemented a paratransit-only system would virtually never meet all the applicable service criteria.” Opinion at 1201 (citing 51 Fed. Reg. 19,012). Private companies may operate a paratransit service and a transit operator may choose to comply with Subpart E exclusively by subsidizing the cost to mobility impaired individuals of using this private paratransit.
The plurality quotes the rulemaking record out of context. What the Secretary found was that in areas with a population greater than 250,000 a paratransit-only sys-tern could be operated which would meet all the applicable service criteria at less cost than the minimum sum sufficient to fall within the safe harbor when the system was privately run. The Secretary referred to these private paratransit services as “user side subsidies” inasmuch as the transit operator sought to comply with Subpart E by providing these subsidies rather than operating a paratransit service itself. Thus, at least within the cited portion of the rulemaking record, the term “paratransit” is used to describe only recipient operated paratransit.
While it is true that the rulemaking record indicates that such recipient operated paratransit cannot be operated in areas with a population less than one million at less cost than the minimum sum required for shelter in the safe harbor, this cannot serve as the basis for the plurality’s conclusion that “[t]he Secretary’s claim that the 8% safe harbor provision adequately ensures minimum compliance with the transportation statutes therefore runs counter to the evidence before the agency at least with respect to cities of populations below 1,000,000.” Opinion at 1201. As quoted here, the plurality’s conclusion fails to consider that these same cities could meet all the service criteria by opting for alternative means, such as privately-operated and user subsidized paratransit or mainline bus accessibility, of providing service to mobility impaired individuals.
The record further indicates that cities with a population less than 250,000 can meet the substantive standards of Subpart E at a cost lower than the minimum sum necessary to qualify for the safe harbor if they choose to mainstream mobility impaired individuals on a fleet of buses in which half the buses are accessible to mobility impaired individuals. See 51 Fed. *1223Reg. 19,012 (1986). Only cities of this size that choose to provide recipient operated paratransit services or which employ a program of user subsidies enabling handicapped persons to purchase specialized van or taxi services from private providers will fail to meet at least one of the substantive standards if they rely on the safe harbor provision. See id.
The record thus indicates that cities of all sizes that use the means of providing service to mobility impaired individuals which is most cost effective for cities of its size can fully satisfy all of the service criteria at less cost than the minimum expenditure that would qualify the transit authority for the safe harbor provision. For these communities, the 3% safe harbor provision supplies a predictable limit on compliance cost exposure, but does not entail any reduction in the level of service.
The safe harbor provision only affects communities that elect to rely on inefficient means of providing service. For example, the record indicates that the least efficient means in communities of all sizes is to provide specialized services directly through a government operated paratransit program.12 The record shows that cities with over one million residents could provide recipient operated paratransit service meeting the minimum service criteria without spending more than 3% of their operating budgets. See 51 Fed.Reg. 19,012 (1986). The rulemaking record also shows that the cost of full compliance by recipient operated paratransit service in cities of between 500,000 and one million residents would exceed the safe harbor provision by only $9,000 per year. See Brief of James Burnley, Secretary of Transportation at 43-44 (interpreting the figures and tables at 51 Fed.Reg. 19,012 (1986)).
The 3% safe harbor provision will admittedly result in less than full compliance in smaller communities13 electing to provide special services directly. That is, in cities with populations less than 500,000 the least efficient means of providing accessible transit which meets all the service criteria cannot be provided for less cost than the safe harbor sum. But the failure to meet one or more of the minimum service criteria in these communities does not mean that handicapped individuals in those communities receive inadequate service. For example, if the only noncompliance was that the response time for paratransit requests rose from twenty-four to twenty-five hours, see 49 C.F.R. § 27.95(b)(2) *1224(1988), I could not conclude that the service provided to the community was therefore entirely inadequate.
Moreover, while the regulations do permit less than full compliance for this class of special service programs, they also set forth two safeguards that ensure adequate service. First, the Secretary has the power to disapprove a proposed program of special services or to condition approval on adoption of specified modifications. See 49 C.F.R. § 27.85(c) (1988). Paratransit operators must accordingly submit a program plan for the Secretary’s review and document the rationale for any reduction in service below complete compliance with the minimum service criteria. See id. This approval process effectively requires a par-atransit program to adopt only such reductions in service as are reasonable and necessary. See 51 Fed.Reg. 19,029 (1986).
No reduction in one service standard, eligibility, may be approved in any circumstances. See 49 C.F.R. § 27.97(b) (1988). Moreover, such reductions as are permitted must still tailor the program to the applicable service standard. While the Secretary is prepared to approve plans that do not fully comply with the minimum service criteria, the illustrations contained in the regulations demonstrate that the Secretary will enforce standards requiring adequate and efficient transportation services. See, e.g., 51 Fed.Reg. 19,027 (1986).
Second, a program plan contemplating such reductions in service quality must be developed through a public participation process that includes consultation with handicapped persons on such matters as deficiencies in planned service and the transportation needs of handicapped persons. See 49 C.F.R. § 27.83 (1988). The local transit operator is accordingly obligated to make plans and cost estimates available to the public, to respond to significant public comments, and to explain the reasons for not adopting significant suggestions. See id.; 49 C.F.R. § 27.97(c) (1988).
This public participation requirement, though procedural in character, is expressly required by the Surface Transportation Assistance Act of 1982, Pub.L. No. 97-424, § 317, 96 Stat. 2097, 2153-54, and calculated to improve the substantive quality of each handicapped services program. The Supreme Court, in addressing standards governing educational programs for the handicapped, has made it clear that such procedural safeguards can have important substantive effects:
the congressional emphasis upon full participation of concerned parties throughout the development of the [educational plan], as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content....
Board of Education v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982).
In my view, the plurality’s conclusion that the 3% figure is arbitrary does not adequately take into account the rulemak-ing record. The 3% safe harbor provision, operating in conjunction with a set of substantive standards, the Secretary’s approval process, and the public participation process, ensures that each locality’s program will provide acceptable service meeting federally legislated requirements without incurring unduly burdensome compliance costs.
In short, the 3% figure was justified on the rulemaking record as designed to reflect the cost of providing the level of service embodied in the substantive standards. Rather than subject every transit authority to continuous administrative supervision for compliance with these standards, however, the expenditure level was specified as a safe harbor provision. Not only is this neither arbitrary nor capricious, it fosters the congressionally authorized goal of maintaining local discretion.
C. The Facial Challenge to Subpart E Must Fail
I respectfully state that the most fundamental error of the plurality’s analysis is revealed in its summary and rejection of *1225the reasons I have advanced in support of the safe harbor. The plurality recognizes that these appeals only present a facial challenge to Subpart E of the regulations, see Opinion at 1202-1203, yet the plurality proceeds to invalidate the safe harbor provision because it may be applied, in some instances, so as to allow service which may fall below the level required by the applicable legislation. It is obvious that the plurality concedes that the Secretary could apply the regulations in a manner so as to approve only those plans that fulfill the congressional mandate, yet the plurality is unwilling to assume that the Secretary will so limit his discretion.14
Today, however, the court is presented with a challenge to Subpart E of the regulations on their face. If the Secretary in fact abuses his discretion by approving plans that allow service at a level below that mandated by Congress, then at that time a challenge could be brought to Sub-part E as it is applied. At this time, however, we must assume that the Secretary will use his discretion to apply Subpart E in a manner consistent with the governing statutes.
This court has previously relied on this distinction between facial challenges and challenges to application of regulations in cases where the plaintiff asserts that a federal regulation is facially inconsistent with federal legislation. Thus, in a case challenging regulations of the Nuclear Regulatory Commission, Chief Judge Gibbons wrote:
[W]e find no facial inconsistency between the present version of 10 CFR § 2.790 and § 103(b)(3) of the Atomic Energy Act. Applications of the rule in specific instances might violate the policy of § 103(b)(3), but there is no need to anticipate such violations, and ample opportunity for judicial intervention to prevent them.
Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm’n, 555 F.2d 82, 92 (3d Cir.1977); see also Bowen v. Yuckert, 482 U.S. 137, 145 & n. 4, 152 n. 9, 154 & n. 12, 107 S.Ct. 2287, 2293 & n. 4, 2296 n. 9, 2297 & n. 12, 96 L.Ed.2d 119 (1987); Quivira Mining Co. v. United States Nuclear Regulatory Comm’n, 866 F.2d 1246, 1259-60 (10th Cir.1989).
Accordingly, in this facial attack on Sub-part E, the burden is upon the plaintiffs to show that these regulations cannot be applied consistently with applicable federal legislation. This simply has not been demonstrated.
The plurality relies on Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), for the proposition that a different standard of review is applicable,15 see Opinion *12261200-01; but that case is distinguishable in that it presents a completely different type of regulation. At issue there was the rescission of a regulation that had required that motor vehicle manufacturers include passive restraints in new motor vehicles. Under the rescission no governmental body had discretion to impose or except the inclusion of such safety devices — the rescission, on its face, exempted all manufacturers from the need to include passive restraints. Consequently, there was no need and indeed no opportunity for parties interested in preserving the prior regulation that had mandated that manufacturers include such restraints to wait to make an “as applied” challenge. Quite simply, the rescission was self-executing.
In contrast, Subpart E of the regulations empowers the Secretary of DOT with discretion which he must exercise in reviewing each recipient’s plans to provide service to mobility impaired individuals. While in a particular case the Secretary may abuse that discretion, if he does a party with standing will be able to obtain relief but the regulation will stand.
The plurality erroneously concludes that this distinction is not applicable because the safe harbor provision “admits of no uncertainty in application.” Opinion at 1202. The issue is not whether DOT will excuse transit operators from spending in excess of the safe harbor sum, rather the issue is what quality of service a transit operator relying on the safe harbor will actually provide. Even in smaller communities where transit operators rely on inefficient means of providing service to mobility impaired individuals and which seek to limit their expenditure to the minimum sum necessary to find shelter within the safe harbor, the transit operators must submit their proposed programs to the Secretary for his approval and they must develop that program through a public participation process. See supra Diss. Op. (Greenberg) at 1224-1225. Consequently, it is entirely possible that the level of service provided by such a transit authority would comply with legislative mandate even though the transit operator relied on the safe harbor rather than fulfill the service criteria of the regulations. Thus, like Westinghouse Electric Corp., the regulation at issue may be applied in a fashion consistent with the underlying legislation. That is, on the record before the court, it is premature to say that a single application of the safe harbor provision would allow a transit operator to deny mobility impaired individuals the level of service that Congress has required.16
The plurality’s reliance on EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 72 n. 12, 101 S.Ct. 295, 301 n. 12, 66 L.Ed.2d 268 (1980), is misplaced. As I understand that case, to the extent that its holding is at all germane here, it is because the court held that the economic capability of the regulated entities could not be considered as a factor in a determination to allow a variance from the applicable standards. Clearly, the parallel holding here would be that no safe harbor could be valid, as the Court in that case was not relating its holding to a particular entity but rather was upholding the elimination of a criterion which could be considered by the agency in taking action. Here, however, no judge is contending that the concept of the safe harbor is invalid. It is only the particular level which is questioned. That simply cannot be done on a facial challenge, at least on the record here which shows that communities of all sizes can meet all of the service criteria at less cost than the safe harbor limit. Therefore, under well-established principles the 3% safe harbor must be upheld.
*1227III. CONCLUSION
For the foregoing reasons, I join in Parts I and II and all of Part III of the plurality’s opinion except for Parts 111(A)(3) and 111(A)(5), while I separately concur with the ultimate conclusion of Part 111(A)(3), and I dissent from Part IV. Circuit Judges STA-PLETON and HUTCHINSON join in all of this opinion and Circuit Judge SEITZ joins in Part I of this opinion.
. See Opinion at 1200-01. Judge Mansmann also agrees with this point, see Diss.Op. (Mans-mann) at 1203, and so it appears that the court unanimously supports the view that the Secretary has the authority to establish a safe harbor provision that is expressed in terms of a percentage of operating costs. But cf. Opinion at 1203 n. 15 (stating that the plurality did "not reach the issue of whether some other safe harbor provision would be permitted by the STAA.”).
. I also note that at oral argument counsel for the Secretary informed the court that the applicability of the Federal-Aid Highway Act is much narrower than the other statutes analyzed by the plurality.
There is a lot of reliance placed on the Federal-Aid Highway Act. I am sorry to tell the court that that statute will not be of much use in resolving the issues of this case. Whatever it means it only applies to assistance that is granted under Federal-Aid Highway Act programs. That is a very small percentage of the transit assistance that is at issue here. Most of the money for bus purchases comes under different statutory provisions that are not in any way controlled by the Federal-Aid Highway Act provision. To give some idea of the scale that we’re talking about there was a total under the Federal-Aid Highway Act in fiscal year 1988 of $140 million obligated. Only $20 million of that went to bus services. Transit assistance programs totaled $3.4 billion in obligations. $20 million, to give you another reference point, would buy only on the order of 140 buses. Obviously, the are far more buses — many more buses purchased. They're not under that statute.
Accepting these figures as true, it appears that even if the Federal-Aid Highway Act required mainstreaming, an interpretation that I do not accept, at most Vmth of the funds from federal transit assistance programs would have to be spent on accessible buses. Consequently, the Federal-Aid Highway Act cannot support a1 broad requirement that transit authorities purchase only accessible buses.
.As Judge Seitz recently wrote, "an agency interpretation of its own regulation is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Pennsylvania v. F.E.R.C., 868 F.2d 592, 596 (3d Cir.1989) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945) and Mullins Coal Co. v. Director, 484 U.S. 135, 159, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987)).
. Inasmuch as this position was taken by the Secretary on the rulemaking record, I cannot join in the plurality’s characterization of this as a "litigation position,” Opinion at 1198, only.
. Since this court’s November 23, 1987, decision in Sykes, 833 F.2d 1113, opened the door to the *1220argument that different subparts of the transit regulations could impose independent and cumulative obligations, counsel for all parties have framed their arguments as though the relationship of Subpart C and Subpart E is an integral part of this case. No party has suggested that this issue is not properly before this court and counsel for the plaintiffs opened his remarks at the in banc oral argument stating, "[t]he question I’ll address [is] whether a transit system purchasing a brand new bus, 80% of which is paid for by federal assistance, must purchase an accessible bus.” See also In re Watts, 876 F.2d 1090, 1095 n. 8 (3d Cir.1989).
. For example, to the extent such services are provided to "non-disabled elderly persons or mentally handicapped individuals," 49 C.F.R. Subpart E app. at 296 (1988), the expenses attributable to these services do not count toward the minimum expenditure sufficient to shelter the transit operator in the safe harbor. Likewise, the Secretary has stated that "[i]f, because the recipient has a reasonable, nondiscriminatory policy against permitting very young children to ride buses unaccompanied, or because such children cannot read destination signs, such individuals cannot use the bus system, these facts do not make them eligible to use [paratransit as an expense cognizable under § 27.99].” Id. at 297.
. I also note that although the regulations provide that only "expenditures by the recipient of its own funds”, 49 C.F.R. § 29.99 (1988), are eligible expenses, thus suggesting that the expenditure of funds from federal or other governmental sources are not eligible expenses, the appendix to Subpart E clarifies that the expenditure of at least certain federal funds are considered eligible expenses. Following the phrase “an expenditure by the recipient of its own funds,” the appendix adds the parenthetical phrase "including the UMTA assistance it receives.” 49 C.F.R. Subpart E app. at 302 (1988).
. The figures used in my hypothetical provide a conservative estimate when compared to the figures supplied by the plaintiffs’ counsel at oral argument. Mr. Cook informed the court that only 5-7% of the capital cost and less than 1% of the operating cost of an accessible bus is attributable to its extra features, and that the buses have a 12 year lifespan.
. Although 49 C.F.R. § 27.95(b) (1988) and 49 C.F.R. § 27.95(c) (1988) set forth “minimum service criteria”, these same substantive standards are described as the "full performance level” in 49 C.F.R. §§ 27.81 (incorporating by reference 49 C.F.R. § 27.95), 27.87 (same), 27.-89, 27.95(a) (1988) and the appendix to Subpart E. As the Secretary and this court interpret the substantive standards, however, they specify neither minimum nor full levels of service for the mobility impaired. In part, the plurality's unwillingness to accept the 3% figure as a safe harbor may be related to erroneously characterizing the substantive standards as literally "minimum service criteria”. See 51 Fed.Reg. 18,996 (1986).
.DOT explained that "predictability is important in planning and budgeting for any public expenditure. The [safe harbor] provision will ensure that recipients know, and can plan on the basis of, a predictable limit to their cost exposure for compliance with [Subpart E].” 51 Fed.Reg. 19,011 (1986).
. A fleet of this description would presumably be sufficient to meet the minimum service criteria of 49 C.F.R. § 27.95(c) (1988) which requires that sufficient accessible buses be in use during the same hours and over the same service area as regular bus service so as to be available at "reasonable intervals." With a fleet in which half the fleet was accessible, buses could be scheduled so that every other bus on a given route was accessible.
A transit operator with such a fleet, however, would not be permitted to maintain this proportion under the plurality’s dicta. Under the plurality’s view, as a transit operator replaced buses it would have to purchase only accessible buses regardless of the proportion of accessible to inaccessible buses represented in its fleet.
. As the Secretary explained in his brief, recipients of federal assistance under the Urban Mass Transportation Act are required to make "fair and equitable arrangements to protect the interests of employees affected by federal mass transit assistance.” Brief for James Burnley, Secretary of the United States Department of Transportation at 44 (citing 49 U.S.C.App. § 1609(c)). As a result, federal law "preventfs] federal funds from being used to destroy the collective-bargaining rights of organized workers." See id. (citing Jackson Transit Auth. v. Local Division 1285, Amalgamated Transit Union, 457 U.S. 15, 16, 102 S.Ct. 2202, 2203, 72 L.Ed.2d 639 (1982)). Against this background, it appears that a para-transit system operated by the recipient has a higher cost because “a transit authority operating its own paratransit service may not be free to unilaterally contract the service out to a private provider; the transit operator must instead negotiate satisfactory labor protection provisions for potentially adversely affected employees." Id. at 44-45.
. I note that the plurality’s conclusion that the safe harbor is arbitrary because small communities will rely on the safe harbor rather than spend the greater sums required to operate a recipient-run paratransit system is incorrect to the extent that this argument encompasses communities with populations of less than 50,000. By reading 49 C.F.R. § 27.97 (1988) in isolation the plurality overlooks the fact that these small communities cannot use the safe harbor provision for the reason that they are expressly exempted from complying with the minimum service criteria of 49 C.F.R. § 27.95 (1988) to which the safe harbor applies. Separate regulations govern these communities. See 49 C.F.R. § 27.91 (1988).
The logical result of the plurality’s position would be the invalidation of that portion of Subpart E that exempts these small communities from compliance with the substantive standards and substitutes less strict requirements. At no point in this case, however, has anyone suggested that 49 C.F.R. § 27.91 (1988) is invalid. Nor would I invalidate that regulation because I cannot conclude that the Secretary does not have discretion to formulate standards that recognize the principle of economies of scale. Nor can I conclude that the Secretary does not have discretion to produce separate standards for urban and rural areas.
. I find the plurality’s willingness to speculate that the Secretary will apply these regulations in a manner inconsistent with legislative dictates surprising in view of the plurality’s unwillingness to assume the manner of the Secretary’s application of Subpart C of the regulations with regard to the same statutory mandates. See Opinion at 1198.
. The other case on which the plurality relies, Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), involved a challenge to an administrative order issued by the Interstate Commerce Commission (ICC). Specifically, Short Line filed applications with the ICC for common carrier authority to transport commodities on a regularly scheduled basis between certain points and for operating authority on irregular routes. See id. at 160-61, 83 S.Ct. at 242. Short Line requested this authorization because a secondary boycott by the unionized employees of common carriers serving its area had interrupted usual service.
The ICC partially granted the first application for a certificate of public convenience and necessity. Competing carriers and the labor union which represented employees of the competing carriers brought suit. The Supreme Court reviewed the ICC’s issuance of the certificate within the factual context of Short Line’s application and the surrounding labor dispute. See id. 166, 170 n. 20, 83 S.Ct. at 244, 247 n. 20. In reversing the district court's validation of the ICC’s action, the Supreme Court stated:
This is not to say that circumstances can never permit the Commission to authorize additional service to remedy refusals to serve, but the Commission must act with a discriminating awareness of the consequences of its action. It has not done so here.
Id. at 176, 83 S.Ct. at 249.
Thus Burlington Truck Lines presented an "as applied” challenge to an exercise of power under applicable law rather than a facial challenge to any regulation of general application. Accordingly, the Supreme Court invalidated the *1226order of the ICC granting the certificate of public convenience and necessity but, unlike the plurality here, the Court did not invalidate any regulation.
. The plurality attempts to avoid the implications of this analysis by framing the issue in terms of the congressional mandate of section 317(c) that DOT establish "minimum service criteria", Opinion at 1203, but I note that the Secretary considered and rejected that argument, see 51 Fed.Reg. 18,998 (1986), and that Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984), counsels greater deference to the Secretary’s interpretation of his task in framing these regulations.