dissenting.
I would affirm the district court. There is no ambiguity or gap in the statute. Only one subsection of 12 U.S.C. § 1823(k), namely, subsection (4), deals with branching, and subsection (4) does not permit a bank which acquires more than one savings and loan association to convert the acquired associations into branches of the acquiring bank.
I. THE STRUCTURE AND LANGUAGE OF SECTION (k)
Subsection (k) of Title 12, section 1823 deals with emergency acquisitions of savings and loan associations. The section defines the associations which may be assisted, requires that state officials be consulted before action is taken, establishes a procedure for solicitation of offers from qualified purchasers, and defines “troubled” savings and loan associations. Most importantly for this case, subsection (4)(A) deals specifically with branching:
(k) Emergency acquisitions.
(4) Branching provisions.
(A) In general.
If a[n] ... acquisition under this subsection involves a saving association eligible for assistance and a bank or a bank holding company, a saving association may retain and operate any existing branch or branches or any other existing facilities. If the savings association continues to exist as a separate entity, it may establish and operate new branches to the same extent as any savings association that is not affiliated with a bank holding company and the home office of which is located in the same State.
12 U.S.C. § 1823(k)(4)(A) (emphasis added).
The language of subsection (4)(A) fits the instant transaction perfectly. A bank seeks to acquire savings associations eligible for assistance. To the extent that any of the associations acquired have branches and to the extent that the acquired association retains its identity as an association, it can continue to operate the existing branches. Moreover, if the association retains its identity as an association, it may establish and operate new branches to the same extent as any association not affiliated with a bank holding company whose home office is located in the same state.
The Congress could have authorized an acquiring bank or bank holding company to convert acquired associations into branches, but it did not. It could have authorized the Resolution Trust Corporation (RTC) to override state laws against branch banking, but it did not. It could have repealed or modified the branch banking provisions of the McFadden Act, but it did not. Neither the RTC nor this court has a right to rewrite the statute to accomplish a goal not permitted by the statute itself. Neither the RTC nor this court has a right to create ambiguities where none exist.
I will not discuss the question of ambiguity further, lest my discussion be perceived as giving credence to the view that the statute is vague or ambiguous or that Congress left a gap to fill. It is important, however, to show the lack of substance of several of RTC’s arguments.
*176II. THE MCFADDEN ACT
The McFadden Act is the principal source of banking authority for national banks. “The conditions under which national banks may establish branches are embodied in ... the ... Act.” First National Bank of Plant City v. Dickinson, 396 U.S. 122, 130, 90 S.Ct. 337, 341, 24 L.Ed.2d 312 (1969). Neither this court nor the Supreme Court has questioned the branching provision of the McFadden Act. This authority tracks the language of the Act itself, which states in unequivocal terms “[t]he conditions upon which a national banking association may retain or establish and operate a branch or branches_” 12 U.S.C. § 36.
The branch banking issue spans the twentieth century. Throughout this period, national banks have been vying to encroach upon the territory of state banks. During the 1920s, this issue came to one of its many climaxes when the Supreme Court held that national banks did not have the implied power to branch. First National Bank v. Missouri ex rel. Barrett, 263 U.S. 640, 44 S.Ct. 213, 68 L.Ed. 486 (1924). The year before this decision, the Comptroller, in his Annual Report of 1923, argued that if state banks continue to practice “unlimited branch banking[,] it will mean the eventual destruction of the national banking system.” HR Doc. No. 90, 68th Cong., 1st Sess. 6 (1924). In reaction to the Supreme Court’s decision and the Comptroller’s advocacy, Congress passed the McFadden Act in 1927. Act of Feb. 1927, ch. 191, § 7, 44 Stat. 1224. This Act imposed what has come to be known as the competitive equality regime, substantively providing that in cities where state banks are permitted to operate branch offices, national banks have a similar privilege. While bolstering the branching privileges of national banks, Congress acknowledged the preeminence of state authority to establish the limit of branch banking activity.
Over the years, the thrust of the McFadden Act has shifted. Initially, the Act was a reaction to discrimination against national banks; hence, the Act sought to guarantee national banks the same branching rights that state-chartered banks enjoyed. In this regard, competitive equality meant allowing national banks to compete with state banks. The Act soon, however, became a means of restraining rather than liberating national banks.18
The current effect of the McFadden Act is to prevent national banks from exceeding the limits that states impose on branch banking. More pointedly, the Act is regularly used to thwart the desire of the Comptroller to ignore state limitations on branch banking. The Comptroller has vented his hostility to the McFadden Act through both legislative and judicial channels. As early as 1931, the Comptroller lobbied Congress to permit national banks to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S.Res. No. 71, 71st Cong., 3d Sess., 7-10 (1931). These efforts have continued unabated to the present.
The repeated failure of the Comptroller to persuade Congress to repeal the competitive equality regime did not deter his hostility to the branching provisions of the McFadden Act. The Comptroller has regularly certified national banks to operate branch facilities in states where the legality of such activity is suspect. Both the Supreme Court and this court have routinely overruled the Comptroller’s decisions. See First Nat’l Bank in Plant City v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969) (overruling the technical *177finessing of the Comptroller and holding that the Comptroller-certified activity was in substance a branch bank in violation of state and thus federal law); First Nat’l Bank of Logan, Utah v. Walker Bank & Trust Co., 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966) (overruling the Comptroller’s certification of a branch bank as a violation of state and thus federal law); Dakota Nat’l Bank & Trust Co. v. First Nat’l Bank & Trust Co. of Fargo, 554 F.2d 345 (8th Cir.1977) (enjoining the Comptroller from issuing a branch certificate after First National successfully petitioned the Comptroller to have its existing branch re-characterized as an “extension” so that the bank could then open a second branch), cert. denied, 434 U.S. 877, 98 S.Ct. 229, 54 L.Ed.2d 157 (1977); St. Louis City Nat’l Bank v. Mercantile Trust Co. Nat’l Assoc., 548 F.2d 716 (8th Cir.1976) (overruling the Comptroller’s decision that a trust office, which did not accept deposits, make loans, or pay cheeks, was not a branch and holding that the trust office was operating in violation of state and thus federal law), cert. denied, 433 U.S. 909, 97 S.Ct. 2975, 53 L.Ed.2d 1093 (1977); State of Missouri ex rel. Kostman v. First Nat’l Bank in St. Louis, 538 F.2d 219 (8th Cir.1976) (overruling the Comptroller’s decision that automatic teller machines were not branch banks); Nebraskans for Indep. Banking, Inc. v. Omaha Nat’l Bank, 530 F.2d 755 (8th Cir.) (overruling the Comptroller’s decision that a facility was not a branch office), vacated and remanded for reconsideration in light of subsequent state legislation, 426 U.S. 310, 96 S.Ct. 2616, 48 L.Ed.2d 658 (1976); Driscoll v. Northwestern Nat’l Bank of St. Paul, 484 F.2d 173 (8th Cir.1973) (referring to the Comptroller’s decision as “quite disturbing,” the court instructed the Comptroller to reconsider his decision).
These cases and the Comptroller’s past lobbying efforts offer a historical perspective from which much can be gleaned. From this vantage, the RTC rule is easily identified as yet another attempt by the Comptroller (this time aided by the RTC) to circumvent the branch banking provisions of the McFadden Act.
The RTC asserts in the rule that the McFadden Act is not the exclusive source of banking authority for national banks. It cites as authority for this claim 12 U.S.C. § 1823.19 If the RTC means to suggest that Congress can override the branching provisions of the McFadden Act, I have no quarrel with the assertion. The fact of the matter is, however, that the McFadden Act remains the principal source of authority for national banks, and the branching provisions of that statute remain effective until repealed.
[Rjepeals by implication are not favored, see, e.g., TVA v. Hill, 437 U.S. 153, 189, 57 L.Ed.2d 117, 98 S.Ct. 2279 [2299] (1978), and will not be found unless an intent to repeal is ‘ “clear and manifest.” ’ United States v. Borden Co., 308 U.S. 188, 198, 84 L.Ed. 181, 60 S.Ct. 182 [188] (1939) (quoting Red Rock v. Henry, 106 U.S. 596, 602, 27 L.Ed. 251, 1 S.Ct. 434 [439] (1883)).”
Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 1392, 94 L.Ed.2d 533 (1987).
Amendments by implication are similarly disfavored. “This is a basic premise of our representative democracy; legislatures, not courts, amend and repeal statutes.” Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 318 (D.C.Cir.1988). Here, neither the statute nor the legislative history indicates an intention to amend the branch banking provisions of the McFadden Act except to the extent specifically pointed out in subsection (k)(4)(A).
III. LEGISLATIVE HISTORY
The RTC relies on the Senate Report that accompanied section 1823(k) out of the Senate Banking Committee to support its as*178sertion that the section permits it to override state branch banking law. This reliance is misplaced. The RTC concedes that the Senate Report is silent with respect to subsection (4), the statutory language which is critical here. Moreover, the House version of the FIRREA was passed in lieu of the Senate version. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989), reprinted in 1989 U.S.Code Cong. & Admin.News 86 (dates of consideration and passage).
The only meaningful discussion of section 1823(k)(4) in the legislative history appears in the conference committee report on the bill:
FDIC’S ASSISTANCE AND DEFAULT PREVENTION AUTHORITY
The FDIC is empowered to provide financial assistance to prevent the default or failure of insured savings associations as well as insured banks. Assistance payments must be made from SAIF i[f] they are made to or for the benefit of an insured savings association.
Title II grants to the FDIC authority similar to FSLIC’s emergency authority to arrange acquisitions of failing thri[f]ts. The amendments curtail severely the extent to which other Federal law may be waived in such acquisitions. The amendments also remove the procedures under current law that give priority to in-State thrift acquirers of failing thrifts. The acquisition of failing thrifts by banks or bank holding companies is authorized. A thrift subsidiary of a bank or bank holding company may branch in the same manner as a savings association (not affiliated with a bank holding company) that has its home office in the same state as the home office of such thrift subsidiary. Finally, emergency acquisition authority is amended to grant to the FDIC discretion to provide assistance to certain savings associations located in economically depressed regions.
H.Conf.Rep. No. 101-222, 101st Cong., 1st Sess. 398, reprinted in 1989 U.S.Code Cong. & Admin.News 437 (emphasis added). The emphasized language describes subsection 1823(k)(4). As applied here, it suggests that if the Worthen Bank and Trust Company acquired a savings and loan which became a subsidiary of Worth-en, the savings and loan could operate branches in the same manner as an independent savings and loan could under Ark. Code Ann. § 23-37-404. The conference report is consistent with the plain language of subsection 1823(k)(4). A savings and loan association that merges or consolidates with a bank, is acquired by a bank, or whose assets are transferred to a bank may retain and operate any existing branches as savings and loans. Only if the acquired savings and loan retains its separate corporate identity as a subsidiary of the acquiring bank may it establish and operate new savings and loan branches as provided for under state law.
The brevity of the conference report’s discussion of the statutory language at issue suggests that its drafters found it as unambiguous as I do. Moreover, in view of the long history of unsuccessful attempts by the Comptroller of the Currency to override state branch banking laws, it seems highly unlikely that Congress would now implicitly authorize such an override without at least memorializing its intention to do so in the legislative history of the statute that purports to create the authority-
IV. POLICY ARGUMENTS
The RTC makes a number of policy assertions to support the rule promulgated by it, assertions which the majority adopts. The principal assertion is that banks will be willing to pay more for troubled associations if they are permitted to retain and operate the associations as branches of the bank. Absent this option, the RTC asserts, banks and holding companies would not bid for troubled thrifts at all, or would bid substantially less because of the cost of chartering and operating the branches as separate banks. This assertion may or may not be valid. The RTC did not file the rule-making record with this court. Thus, *179we have no way of testing the validity of the assertion. Moreover, no evidence was introduced before the trial court to support the proposition that use of the override would save the RTC substantial sums of money.20
It is for the Congress of the United States, not this court, to establish federal banking policy. If the Congress had desired to permit the RTC to override state branch banking restrictions, it would have said so.
V. THE CHEVRON ARGUMENT
The majority justifies its decision on the basis of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron states that if a statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s interpretation is based on a permissible construction of the statute. Here, the statute is neither silent nor ambiguous on the issue of branching. Thus, the rule in Chevron does not apply.
The RTC has manifestly gone to great lengths to create a gap and an ambiguity, but no administrative agency can bootstrap itself into a position where it can by rule fill a gap or resolve an ambiguity where neither exists. I could not disagree more with the statement in the majority opinion that contradictory arguments raise the specter of ambiguity. If this were the case, there would be no limit on the ability of administrative agencies to interpret statutes as they see fit, particularly where the administrative agency is the party asserting the ambiguity.
I have already noted the long history of the Comptroller of Currency’s efforts to persuade the Congress to amend the branch banking provisions of the McFadden Act and failing that, to avoid the provisions of state laws prohibiting branch banking. This is but another attempt by the Comptroller of Currency, assisted by the RTC, to accomplish the long-term goal of permitting uninhibited branch banking. Each of us may have our own personal opinion as to whether the long-term interest of this nation will be better served by fewer and larger banks with unlimited branches, but it certainly is not within the prerogative of this court to resolve that very important question in this case.
VI. THE RULE-MAKING ARGUMENT
The RTC argues that because Congress has given it broad rule-making authority, it can override Arkansas laws with respect to branch banking. This argument fails for the same reasons the Chevron argument fails. An agency’s rule-making authority cannot be used, irrespective of its breadth, to override the clear and unambiguous language of a statute. Cf. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9 (stating that courts must reject administrative constructions that are contrary to clear congressional intent).
For the reasons stated above, I respectfully dissent.
. Even in its inception, restraining national banks (and the Comptroller of the Currency) was a purpose behind the Act. During the House debates over the McFadden Act, Representative Stevenson of South Carolina explained:
[Y]ou have branches in the Federal reserve system established by the dictum of the Comptroller of the Currency, who has assumed [sic ] to say that he can allow a national bank to establish as many agencies for receiving deposits and paying checks as he sees fit.... I will show presently that we cut that out, root and branch.
66 Cong.Rec. 1627 (1925).
Similarly, Congressman McFadden described the act as an "anti-branch banking measure severely restricting the further spread of branch banking in the United States.” 68 Cong.Rec. 2166 (1927).
. It is interesting to note that this statute does not authorize the FDIC to override state banking prohibitions. Indeed, it requires the FDIC to obtain permission of the state bank supervisor of the state before it can proceed. It further provides that an acquiring bank can only operate existing branches of banks acquired. The provisions of § 1823 indicate that Congress knew exactly what it was doing in that case as well as in subsection (k)(4)(A).
. During oral argument, we queried both the appellants and appellees with respect to the validity of the assertion. The appellees disputed the assertion that an override would save money and claimed that RTC had successfully offered several associations for sale without an override provision. Appellants continued to make the assertion, but conceded that no evidence in the record before this court supported its claim of increased costs.
We also queried the appellees with respect to their assertion that if the override were implemented, other state and national banks in the state would be placed at a significant competitive disadvantage. They were unable to point to evidence in the record to support this assertion. The upshot of the matter is the state of the record leaves us no alternative but to make our decision on the basis of the language of the statute.