concurring:
The prevailing opinion has my full concurrence but I wish to add a few words to clarify an unaddressed misconception relating to the wording of the controlling statute which might otherwise appear on its face to carry weight.
The contention has been made that if, as held in Eastern Airlines, a court’s discretion to award attorney’s fees under section 210(b) of the ESA is limited to cases of willful overcharges, mention of “costs” would not have been included in the phrase “reasonable attorney’s fees and costs,” since under the general rule taxable costs are recoverable by prevailing parties in any event. The contention fails to recognize the distinction between taxable costs awardable as of course to a prevailing party apart from adjudged liability and “reasonable attorney’s fees and costs” as a liability authorized in departure from the American Rule as to attorney’s fees because of certain recognized equitable considerations or, as here, by express statutory provision under specified conditions. If the term “costs” in line with the argument had been eliminated from the phrase, a more plausible contention could have been made that even taxable costs could not be recovered at all in case of willful overcharges whereas they would have been if the overcharges were not willful. Congress did not need to invite the latter unreasonable construction by omitting the *811mention of costs in connection with its reference to attorney’s fees. It plainly indicated its intention to the contrary and it would be quite unreasonable to hold that in so doing it granted carte blanche discretion to award “attorney’s fees and costs” in disregard of the limitations it specified merely because taxable costs otherwise may have been awardable to a prevailing party without reference to those limitations.