Consumers Union of the United States, Inc. (Consumers Union) alleges in this action that regulations, 10 C.F.R. *1081§§ 212.71-74, effective January 15, 1974,1 issued by the Federal Energy Office, now the Federal Energy Administration (FEA), violate § 4 of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. §§ 751-756 (the Act) by creating, in effect, massive unauthorized exemptions from the Act; and, although § 4 of the Act imposes a mandatory duty to establish controls which will ensure “equitable” prices for all domestic crude oil,2 the FEA, by permitting “new” and “released” crude oil to be sold at the free market price, has violated that duty.
The United States District Court for the District of Columbia denied Consumers Union’s motion for declaratory and injunctive relief and granted FEA’s cross-motion for summary judgment. It held that the Act does not necessitate price ceilings, and that FEA’s decision to let the prices “float” on certain agency-created categories of crude oil satisfied the statutory prescription that it specify or prescribe a manner for determining price. The court further ruled that this decision did not result in an invalid exemption from regulation, because all oil remained “subject to” allocation and price controls. Consumers Union appealed from the decision and order of the district court.
A panel of this court, one judge dissenting, reversed that portion of the district court’s judgment which held that FEA validly regulated the price of new oil, but affirmed the portion of the judgment which held valid the then applicable regulation governing released oil.3 After a rehearing en banc a majority of the court now vacates the judgment of the panel and affirms the judgment of the district court. I respectfully dissent from the majority opinion and judgment as it relates to both new and released oil.
The majority concedes that the Act imposes a mandatory duty to “specify” or “determine,” i. e. “regulate,” prices for all crude oil. Section 4(a) of the Act4 provides that the President of the United States “. . . shall promulgate a regulation providing for the mandatory allocation of crude oil, residual fuel oil and each refined petroleum product, in amounts . . . and at prices specified in (or determined in a manner prescribed by) such regulation.” It also specifies that the implementing regulation “. . . shall apply to all crude oil produced in or imported into the United States,”5 with the exception of “stripper well production,” which is essentially the output of low-yield' properties.6 It further provides *1082that . .to the maximum extent practicable,” the regulation secure “. [the] preservation of an economically sound and competitive petroleum industry . . . equitable distribution . at equitable prices [and] . minimization of unnecessary interference with market mechanisms.” § 4(b)(l)(A — I).
To exempt any category of crude oil from the allocation and pricing system, the President must make specific factual findings which, together with the proposed exemption, shall then be submitted to Congress. The exemption takes effect within a specified period thereafter, provided that neither House meanwhile takes any action expressing its disapproval. Any exemption thereby created may remain valid for a period not in excess of 90 days. § 4(g)(2).7
The regulations in question established a “two-tier pricing system,” which imposed á ceiling on one category of crude oil while permitting other categories to sell at the market price. Specifically, “old” oil cannot be sold at a figure which exceeds the highest posted price for the same grade of crude oil in that particular field on May 15, 1973, plus $1.35. The national average ceiling price for old crude, which constitutes approximately 60% of domestic production, is $5.35 per barrel.
Under the objectionable regulations, 10 C.F.R. § 212.74(a); 10 C.F.R. § 212.-74(b), as amended at 39 Fed.Reg. 31622-24 (Aug. 29, 1974),8 new and released oil may be sold “without regard to the ceiling price,” i. e. at the market price. If a particular property did not produce at all during the base year, then all of its current yield is new oil and, accordingly, may be sold at the market price. The prevailing national average price for new and released oil is approximately $10 per barrel.
It is my opinion that these regulations create exemptions, although the statutory prerequisites, set forth in § 4(g)(2) for establishing exemptions, were not followed or complied with. The majority, on the contrary, assert that they do not, and that permitting new and released oil to float to market level is, in effect, providing regulation within the meaning of the statute. This is the first and principal issue on appeal. The second is whether allowing new and released oil to float to the free market price, is a violation of the FEA’s mandatory duty to establish equitable prices for all crude oil.
In the light of the conclusion which it reached, the majority did not find it nec*1083essary to discuss what the Government argued, and the district court held, that new and released crude oil have not been exempted from price controls because FEA has retained the authority to impose more direct controls in the future.
This argument would be valid if the Act merely authorized the regulation of prices when or if the FEA, in its discretion, saw fit to do so, because in such a case, the failure presently to exercise that authority would not preclude the future imposition of controls. If, however, the Act requires that prices be regulated, any failure so to act, no matter how temporary, exempts present prices from the controls to which they should otherwise be subject.
The Act, by the use of such terms as “shall” and “direct,” imposes a mandatory, non-discretionary duty to specify, or prescribe a method for regulating prices. See, e. g. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935); Richbourg Motor Co. v. United States, 281 U.S. 528, 534, 50 S.Ct. 385, 74 L.Ed. 1016 (1930); National Treasury Employees Union v. Nixon, 492 F.2d 587, 601 (C.A.D.C.1974). Section 2(b), for example, provides that “[t]he purpose of [the] Act is to grant to the President and direct him to exercise specific temporary authority to deal with shortages of crude oil . [This] authority . shall be exercised for the purpose of minimizing the adverse impacts of [such] shortages.” (Emphasis added.) Section 4(a), moreover, specifies that “the President shall promulgate a regulation providing for' the mandatory allocation of crude oil at prices specified in (or determined in a manner prescribed by) such regulation . . . ” And, § 4(a) further provides that ”. such regulation shall apply to all crude oil ” (Emphasis added.)
Congress, moreover, by including the specific and comprehensive requirements of § 4 (g)(2) has exhibited a clear policy of restricting and closely controlling any grants of exemptions.
In the face of such legislative intent and the clear and unambiguous meaning of the Act, any interpretation of the Act which would permit the Executive, acting through the FEA, to evade a non-discretionary duty and to enlarge the authority to create exemptions simply by describing as “subject to controls” that which may simply be determined by the forces of an uncontrolled market, must be rejected.
That the regulations at issue do not, in haec verba, state that they “exempt” the new and released oil from price controls is of no consequence when the operative effect of their provisions is exactly that. If these are not exemptions, what are? This literal approach, adopted by the district court, was rejected by the Supreme Court in Federal Power Commission v. Texaco, Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974). Insofar as FEA has not regulated prices in compliance with ’ the Act, it has created a de facto exemption which is invalid to the extent that the detailed procedures set out in § 4(g)(2) have not been followed.9
The majority in support of its position leans heavily upon part (I) of § 4(b)(1) which provides that the regulation of the allocation and prices of crude oil shall, to the maximum extent possible, provide for “minimization of economic distortion; inflexibility, and unnecessary interference with market mechanisms;” and interpret this to mean that Congress intended thereby “to hew a sphere of responsibility within which FEA could decide how to proceed against the crisis;” and construe “the grant of such broad regulatory discretion” to empower the *1084FEA to free any category of crude oil from all regulation without complying with the required exemption procedure. But the words used were “minimization,” which implies some change in or affect upon economic operations, and “unnecessary interference,” which implies some necessary interference with market mechanisms. This wording is hardly a justification for finding such a grant of the unlimited power as the majority would accord to the FEA. Concerning this provision the Conference Report, No. 93-628, at 24, U.S.Code Cong. & Admin. News 1973, p. 2701, said:
“Section 4(b)(l)(I) of the conference substitute requires special mention. This section emphasizes the objective of minimizing economic distortion, inflexibility and unnecessary interference in market mechanisms. The committee recognizes that mandatory allocation programs which compel the distribution and sale of fuels for particular uses at specified prices necessarily distort the economy and interfere with a free market mechanism. It is the intent of this legislation that that economic distortion and interference be minimized to the extent practicable.”
While FEA has some discretion in working out the interplay of the nine goals of § 4 in devising a regulatory scheme, it cannot adopt measures which contravene statutory mandates. See, e. g. Permian Basin Rate Cases, 390 U.S. 747, 776-777, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Wisconsin v. Federal Power Commission, 373 U.S. 294, 309, 83 S.Ct. 1266, 10 L.Ed.2d 357 (1963); Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942).
The paragraph out of which the above quoted portion is taken concerned the use of regulations for allocation and pricing of oil established under the Economic Stabilization Act, and the majority argues that, because the COLC under Phase IV permitted the utilization of free market prices for some petroleum products, it was the congressional intention that the Phase IV regulations under the Economic Stabilization Act would be adopted and used under the present Act, i. e. Emergency Petroleum Allocation Act of 1973. But this Act, although it several times makes mention of the Economic Stabilization Act with respect to § 203(a)(3), concerning allocation, see § 4(f)(2), § 6(a), and incorporates portions of that Act by reference, § 5(a)(l and 2), it nowhere mentions or incorporates § 203(a)(1) which has to do with the fixing of prices.
The majority has culled-out of a portion of the Conference Report a single sentence which it has enlarged into a controlling provision of the Petroleum Allocation Act; and argues that the FEA is authorized to adopt the regulations promulgated by the COLC under the Economic Stabilization Act as a plenary system of regulation of prices under the Petroleum Allocation Act. There is not a shred of authority to be found in the Act to sustain this assertion as to the regulation of price. While the reports of congressional committees are helpful in disclosing legislative intent, the Act itself, which was subsequent to committee debates and reports, is also evidence of intent. It certainly cannot be ignored, as it is by the majority. To paraphrase an old adage, “what Congress in fact did speaks more loudly than what it said in its committees.” The Act, of course, did not expressly prohibit the use by the FEA of such parts of the COLC’s system of regulation as would unquestionably fulfill or implement the Act; and, as above mentioned, it referred to and incorporated some portions of them. But it is quite obvious that with respect to any use by the FEA of the Economic Stabilization Act, and the regulations under it, as precedent insofar as the regulation of prices was concerned, it was the congressional intention that such use be subject to the mandatory pricing controls implicit in the present Act and subject to the limitations and directions set out within it. Neither by this means nor by any other does the Emergency Petroleum Allocation Act, expressly or by implication em*1085power the FEA to relieve various categories of crude oil from mandatory price controls.
The Senators and Congressmen who produced the Conference Report did not accept the Phase IV price controls under the Economic Stabilization Act as fixing, in toto, equitable prices for the Petroleum Allocation Act, as the majority claim. For example:
“The Committee is aware that Phase 4 oil regulations issued by the Cost of Living Council under authority contained in the Economic Stabilization Act of 1970, as amended, effectively prevented a passthrough of increased costs at the retail level — unless such increases resulted from price rises in imported products. Retailers of gasoline and heating oil were held to a base of January 1, 1973, upon which an allowable markup was permitted while producers and others in the distribution chain were permitted to markup on a May 15, 1973, cost base. The provisions contained in subsection (b)(2) would assure that, in exercising his authority under this bill, the President would not repeat similar inequities in the establishment of prices or methods for determining prices for gasoline and refined lubricating oil.” H.R.Rept. No. 93-531, p. 20, U.S.Code Cong. & Admin.News 1973, p. 2597.
It is apparent that this point of view was shared by a majority of the other members of the House and Senate because the present Petroleum Allocation Act, as finally passed, contained the following mandatory provisions for specifying prices:
§ 4(b)(2) “In specifying prices (or prescribing the manner for determining them), such regulations shall provide for—
(A) a dollar-for-dollar passthrough of net increases in the cost of crude oil, residual fuel oil, and refined petroleum products to all marketers or distributors at the retail level; and
(B) the use of the same date in the computation of markup, margin, and posted price for all marketers or distributors of crude oil, residual fuel oil and refined petroleum products at all levels of marketing and distribution.”
The purpose of these provisions was to insure, in the context of mandatory price controls, equitable prices all along the line, particularly for the benefit of the ultimate consumers of petroleum products. Just how these statutory requirements can be complied with, and the interests of the ultimate consumers can be preserved, when the first step in this chain of sales and distribution, that is, the price charged by the producer to the refiner for new and released oil in times of short supply, is permitted to float, is not answered or attempted to be answered by the majority. Moreover, § 4(e)(1) states, “[t]he provisions of the regulation under subsection (a) shall specify (or prescribe a manner for determining) prices of crude oil at the producer level . ,” unless a prescribed exemption procedure is followed.
The majority’s assertion that a regulation, which permits the price of a category of oil to float to the free market level fulfills the requirements of the Act, is untenable. Once the Commission permits the price to float, the price is not fixed by the Commission but by the vagaries and imponderables of the free market. The Commission cannot relegate the task of fixing prices to the action of the free market as “prescribing the manner for determining them,” as the majority apparently would permit it to do.
The Commission, of course, might fix the prices for each and all of the categories of crude oil by relating them to market prices of a past date or a percentage above or below those market prices, but once the Commission has fulfilled its duties by regulating the prices there is no longer a free market and, therefore, no free market price.
It is also clear from the legislative history and the Act, itself, that Congress’ *1086main objective in enacting the Emergency Petroleum Allocation Act was to require active administrative interference in the operation of the free market in order directly to affect the price of all crude oil (except stripper-well production). The House Committee [found] that . . . shortages [of crude oil and petroleum products] are real, severe, and cannot be dealt with through reliance on a free market structure . . . ” 10, a sentiment echoed by the conferees:
“[We] are in unanimous agreement that due to various factors the self-regulatory laws of supply and demand are not currently operating in the petroleum market. It is imperative that the Federal Government now accept its responsibility to intervene in this marketplace to preserve competition and to assure an equitable distribution of critically short supplies.” Conf. Rept. No. 93-628 at 11, U.S.Code Cong. & Admin.News 1973, p. 2688.
Because the free-floating categories of crude oil would sell at the market price in the absence of any administrative regulation, the President has “permitted” it to sell at that price only in the sense that he has taken no action to compel a, different result. If Congress intended that the market could be used as the exclusive regulator of prices, then there would have been no need to include regulation of prices within the Emergency Petroleum Allocation Act. If, however, they intended to leave price control to the discretion of the President, Congress would have adopted § 203(a)(1) of the Economic Stabilization Act; but the Legislative Branch did neither of these things. It enacted the Emergency Petroleum Allocation Act which requires mandatory price controls, and made it incumbent upon the President to regulate the prices of all crude oil, regardless of category.
The majority further maintains that, even conceding that the Act requires some form of active interference in the operation of the free market, the Act has been satisfied because governmental action causes the average price level for all crude oil to vary from that which would prevail in the absence of the two-tier system of controls. New and released crude oil, according to the majority normally constitute only a portion of the total output of each oil-producing property so that the average of the prices charged by each producer for all of his oil is lower than it would have been in the absence of the regulations at issue and that therefore FEA has in effect regulated the price for all crude oil.
Under that theory, a simple regulation governing the total amount any one producer could receive for his oil, be it “old,” “new,” “released” or otherwise would be adequate. But to be permissible, a scheme of indirect regulation must still meet the requirement that the Government affect the price for each category of crude oil and not just that of crude oil taken as a whole. A requirement to regulate the price of all crude oil, directly or indirectly, is not satisfied by an administrative scheme which affects only the average price of crude oil and not the price of each component category.
Although the Supreme Court upheld a regulation of the Federal Power Commission which indirectly controlled rates charged by natural gas producers, Federal Power Commission v. Texaco, Inc., supra, that case differed critically from the present case. The Natural Gas Act, 15' U.S.C. § 717, required that the Government regulate the rates charged by all producers. The administrative regulation, however, failed directly to regulate small producers of natural gas, even though they came within the scope of the Act. The Supreme Court upheld the validity of the regulation because the entire output of these small, non-regulated producers was purchased only by the pipelines and large natural gas companies which would exert pressure to keep *1087the freely floating rates in line with the “just and reasonable” rates to which the regulations compelled the larger producers to adhere. On the other hand, in the present case, the “average weighted price per barrel,” is merely a mathematical construct with no moderating effect on the price of new and released crude oil, which is presently set exclusively by the operation of the “law” of supply and demand.
The conclusion that the regulations at issue do not regulate the prices of all categories of crude oil becomes clear when it is realized that, because new oil — defined as production per unit of oil-producing property in excess of 1972 production levels — is allowed to sell at the market price, there is a strong incentive to drill wells which were not active during the base period. As a result, situations will likely exist where producers have only new oil, which the regulations permit them to sell at the market price. Because the majority maintains that the price of all crude oil is regulated to the extent that the average price per barrel charged by each producer falls below the free market price, there will be situations in which the majority must concede that, under its own theory, the Government has failed to specify or prescribe a manner for determining price.
The Government and the majority seek to minimize the importance of this exemption by focusing on the “limited number” of properties producing only new oil. FEA does not indicate, however, how limited the number is. And, even if the number is quite limited, it would not cure the violation of the requirement that all crude oil be regulated. The majority, moreover, seeks to justify the exemption of new crude oil in part on the ground that the higher price will spur exploratory efforts. The number of properties producing exclusively new crude oil will remain limited only if the regulation fails to achieve its intended purpose. And, in case of such failure, FEA cannot invoke the incentive effect of market price as a justification for the regulation at issue.
Congress, in extending the Emergency Petroleum Allocation Act on December 5, 1974, specifically stated that FEA, in adopting the Phase IV system of price controls essentially unchanged, had failed to carry out the purposes of the Act.
“[I]n several important respects the Congressionally defined objectives have been misunderstood, misinterpreted or, in some cases, ignored. The Committee was dissuaded, however, from attempting to redefine Congressional intent through substantive amendment to the Act at this time. Instead, it was determined to wait until the next session of Congress when time would permit a more reasoned and detailed evaluation of the program It is the sincere hope and expectation of the Committee that the Federal Energy Administration . will make the necessary revisions to bring the program in line with the firm intent of the Congress and the requirements of the law.” (Emphasis added.) H.R.Rept. No. 93-1443 at 2; see also, S.Rept. No. 93—1082 at 2.11
I am also of the opinion that 10 C.F.R. §§ 212.74(a) and (b) are invalid on the separate ground that the use of the market as the sole factor in determining the price of new and released oil fails to satisfy the statutory prescription that the price of all crude oil be set at an equitable level.
The majority concedes that the Emergency Petroleum Allocation Act requires price regulation so as to prevent price gouging or price discrimination.12 Rather than one of the purposes of the Act, Congress clearly intended this as the major objective:
*1088“. . . the bill ... is not designed to and should not be interpreted as increasing supplies of these critically short products . . . Instead, this bill focuses on the short term objectives of seeing to it that . whatever limited supplies we have are equitably distributed throughout the nation to meet regional needs and preserve competition in the marketplace.” H.R.Rept. No. 93—531 at 6, U.S.Code Cong. & Admin. News 1973, p. 2583. See also, Conf. Rept. No. 93-628 at 14.
The equitable price requirement is specifically designed to achieve this objective:
“The reference to equitable prices in the bill is specifically intended to emphasize that one of the objectives of the mandatory allocation program is to prevent price gouging or price discrimination which might otherwise occur on the basis of current shortages.” Conf.Rept. No. 93-628 at 26, U.S.Code Cong. & Admin.News 1973, p. 2702.
In subjecting producers to regulation for the major purpose of preventing price gouging or price discrimination; it is clear that Congress did not intend that “equitable prices,” one of the requirements (the other being allocation) by which the objective was to be achieved, could be conclusively established by “the self-regulatory laws of supply and demand,” which Congress found “are not currently operating in the petroleum market [in which] the Federal Government . . . [must] intervene to preserve competition and to assure an equitable distribution of critically short supplies.” See, Federal Power Commission v. Texaco, Inc., supra, 417 U.S. at 394-97, 94 S.Ct. 2315.
The majority maintains that “utilization of free market price for [new and released crude oil] for a maximum of 27% of all crude petroleum production (excluding stripper-wells) is . . .a statutorily permissible means of accomplishing the necessary balancing of objectives.” But free market price is clearly inequitable in the opinion of Congress, and the Act does not vest authority in FEA to set inequitable prices for any portion of domestic crude production. The Natural Gas Act’s mandate of “just and. reasonable” rates requires, as the Supreme Court’s opinion in Texaco illustrates, precisely the same balancing of the same competing objectives of promoting new sources of supply and moderating consumer prices. And the Court there held that a two-tier pricing system under which one tier was determined by the market price exclusively was unlawful because, while the statute may have conflicting goals with respect to priorities, Congress did not authorize any exceptions to the requirement that all rates be “just and reasonable.” Federal Power Commission v. Texaco, Inc., supra, 394-97, 94 S.Ct. 2315.
The majority finally maintains that “[the] elevation of one of the nine Congressional objectives [§ 4(b)(1)(f)] to the level of a ‘precept’ is absolutely without support in the Act or its legislative history.” 13 It is not the position of the dissent that FEA must disregard any of the goals of the Act, but that it must balance all the competing objectives of the Act in determining allocation and prices.
It is not the function of this court to determine what the equitable price is, or should be. It is my opinion that the President, through the FEA, by permitting the price of new and released crude oil to float at free market levels, has not struck any balance and, as a result, has failed to satisfy the requirement that prices be set at an equitable level.
. The definitions of “old” crude oil, “new” crude oil and “released” crude oil, given in the majority opinion are not disputed.
. 10 C.F.R. § 212.74(b) was amended effective August 29, 1974, 39 Fed.Reg. 31622-24 (August 30, 1974), so that released oil, like new oil, may now sell “without regard to the ceiling price [prescribed for old oil].”
. 512 F.2d 1112 (Em.App.1975).
. Section 4(a) provides:
“Not later than fifteen days after the date of enactment of this Act, the President shall promulgate a regulation providing for the mandatory allocation of crude oil, residual fuel oil, and each refined petroleum product, in amounts specified in (or determined in a manner prescribed by) and at prices specified in (or determined in a manner prescribed by) such regulation. Subject to subsection (f), such regulation shall take effect not later than fifteen days after its promulgation. Except as provided in subsection (e) such regulation shall apply to all crude oil, residual fuel oil, and refined petroleum products produced in or imported into the United States.”
. Although § 4(a) provides that a regulation promulgated for allocation and price “. shall apply to all crude oil produced or imported into the United States,” it is clear to all, except the most ignorant or most obtuse, that the Government of the United States, particularly the judicial branch, has no control over prices charged by the OPEC for its oil. If things remain as they are at present, a court faced with the question of the validity of import regulations for crude oil, must rule that it is not “practicable” within the meaning of § 4(b)(1) to require that imported oil be sold at a price lower than what the OPEC cartel managers demand for it.
. Section 4(e)(2)(A) provides:
“The regulation promulgated under subsection (a) of this section shall not apply to the first sale of crude oil produced in the United *1082States from any lease whose average daily production of crude oil for the preceding calendar year does not exceed ten barrels per well.”
. Section 4(g)(2) provides:
“If at any time after the date of enactment of this Act the President finds that application of the regulation under subsection (a) to crude oil, residual fuel oil, or a refined petroleum product is not necessary to carry out this Act, that there is no shortage of such oil or product, and that exempting such oil or product from such regulation will not have an adverse impact on the supply of any other oil or refined petroleum products subject to this Act, he may prescribe an amendment to the regulation under subsection (a) exempting such oil or product from such regulation for a period of not more than ninety days. The President shall submit any such amendment and any such findings to the Congress. An amendment under this paragraph may not exempt more than one oil or one product: Such an amendment shall take effect on a date specified in the amendment, but in no case sooner than the close of the earliest period which begins after the submission of such amendment to the Congress and which includes at least five days during which the House was in session and at least five days during which the Senate was in session; except that such amendment shall not take effect if before the expiration of such period either House of Congress approves a resolution of that House stating in substance that such House disapproves such amendment.”
. The maximum allowable price for released oil, prior to the amendment of 10 C.F.R. § 212.74(b), was the lesser of the prevailing market price or the price derived from a formula made up of the base period production level, the May 15, 1973 posted price, the prevailing market price, and the amount by which the then present production exceeded the base period yield.
. Although the court below did not address the issue of compliance with § 4(g)(2), there would be no point in remanding the case because the record unequivocally shows that an exemption, to the extent that one has been granted, is no longer valid. Appellee Sawhill promulgated the regulations at issue on January 15, 1974. 10 C.F.R. § 212.74(b) was amended effective August 29, 1974. Section 4(g)(2) provides that an exemption, even if validly granted, may remain in force for no more than 90 days, a period which has long since expired.
. H.R. Report No. 93-531 at 6, U.S.Code Cong. & Admin.News 1973, p. 2583.
. There was no conference report on Pub.L. 93-511, the statute which extended the Emergency Petroleum Allocation Act on December 5, 1974.
. P. 1080 of appendix to present majority opinion.
. P. 1079 of appendix to present majority opinion.