(concurring) :
1 Appellate courts die hard in relinquishing powers stoutly asserted but never truly possessed; like generals, they prefer to fade away./ Although the majority’s retreat, restricting the use of mandamus in reviewing a district judge’s exercise of discretion to transfer or not, to instances where abuse is “clear-cut,” is a step in the right direction, we should *446go the whole way and end this sorry business of invoking a prerogative writ to permit appeals, which Congress withheld from us, from discretionary orders fixing the place of trial. Conceptual and practical considerations unite to demand recognition that when there is no question of transferability, our power to issue mandamus is limited to those cases, exceedingly hard to imagine in this circuit, where a district judge has denied a transfer motion without even considering the merits or has granted or denied one in such flagrant defiance of accepted principles as to evidence impermissible motivation. Cf. Wong Wing Hang v. I. N. S., 360 F.2d 715, 718-719 (2 Cir.1966). Such cases, and only such, come within “[t]he traditional use of the writ * * * to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). If perchance that is what my brothers mean, we ought to say so in language all will understand.
Again emphasizing the limited scope of the prerogative writs, the Court has stated that when, as here, Congress has withheld interlocutory review, the all-writs statute, 28 U.S.C. § 1651(a), cannot “be availed of to correct a mere error in the exercise of conceded judicial power”, but can be used only “when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power * * De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945); see also United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945). I do not read the decision in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), by a closely divided Court, as departing from these principles, although some language in the opinion might lend itself to that interpretation. The essential holding was that a court of appeals could and indeed should lay down a rule that a district judge may not delegate to a master the determination of liability in antitrust cases, “an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation”, 352 U.S. at 256, 77 S.Ct. at 313; once that rule was established, requiring a judge to perform his judicial duty was a traditional use of mandamus.
When we turn from the conceptual to the practical, experience shows that entertaining applications for mandamus to review discretionary orders for transfer produces much harm and almost no good. In the fifteen years since this court first announced willingness to consider such applications, Ford Motor Co. v. Ryan, 182 F.2d 329 (2 Cir.1950),1 we have never granted one. But even so dismal a record naturally does not prevent counsel from accepting our invitation, whether because in the heat of battle they have persuaded themselves of the merits of their cause or because, *447however slight their chance of success, they welcome the delay a mandamus petition will cause. Whatever the motivation, delay is the result; we have had this very petition under advisement almost as long as would have been needed to get to trial in the district of transfer, and the petitioner is thus having the worst of both worlds. The situation is no different elsewhere; the handful of cases where the writ has issued, see fn. 2 to my brother Moore’s opinion, are a meagre harvest for the effort expended by lawyers and judges on the countless applications that failed and the delays in all — even if we assume that in every case the trial court was wrong and the appellate court right.2 I cannot think the restriction here imposed — that we will issue the writ not for simple but only for “clear-cut” abuse of discretion— will help much. A lawyer who is ready to say that a district judge has abused his discretion will not boggle over the adjective, and application of the standards constantly being proliferated for review of orders of district judges— error, clear error, abuse of discretion, now clear-cut abuse of discretion — requires a mind more sensitive than mine. Indeed, if the criterion here applicable were error whether plain or fancy, I fail to see why the writ should not issue, since I find it hard to conceive a transfer less “in the interest of justice” than directing this small Brooklyn concern, which is quite willing to await its turn for trial in the Eastern District of New York, to betake itself to the seat of defendant’s considerable activity in Tennessee. On the other hand, on the test I think proper, we could have dismissed the petition on a mere reading of the judge’s memorandum, which made clear that he acted judicially although, in my view, in this instance injudiciously.
If we possessed no other guides to decision, I would therefore urge that the court in banc disapprove Ford Motor Co. v. Ryan, supra, and align itself with the views forcibly expressed by Judge Goodrich for the Third Circuit in All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1012 (1952),3 by Judge Magruder for the First in In re Josephson, 218 F.2d 174, 183 (1 Cir.1954), by Judge Parker for the Fourth in Clayton v. Warlick, 232 F.2d 699, 702-706 (1956), but see Morehead v. Barksdale, 263 F.2d 117, 118-119 (4 Cir.1959), and General Tire and Rubber Co. v. Watkins, 326 F.2d 926, 929 (4 Cir.), cert. denied, 377 U.S. 909, 84 S.Ct. 1166, 12 L.Ed.2d 179 (1964), and by Judge Sanborn for the Eighth in Great Northern Ry. Co. v. Hyde, 238 F.2d 852, 857 (1956), adhered to, 245 F.2d 537, cert. denied, 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957), overruled, McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (1965); we should make clear, in accord with these decisions of leading judges, that we will not listen to discussions whether a district judge made an error, clear-cut or otherwise, in deciding whether or not to transfer, but will entertain applications for mandamus as to transfer orders only when there is an issue of transferability or a substantial claim that the judge has refused to exercise or has usurped judicial pow*448ér. As I see it, however, the Supreme Court’s decision in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), is sufficiently dispositive to eliminate any need for an in banc hearing.
In that, case the district judge had denied a defendant’s motion to transfer a criminal antitrust action under F.R.Cr. P. 21(b), in part on the basis of a finding that the Government would have difficulty in getting an impartial jury in defendant’s home district. The court of appeals considered this an impermissible ground and the Supreme Court agreed. The court of appeals also ruled that, absent this ground for retention, the factors dictated transfer and so ordered, Chief Judge Hastings dissenting; the Supreme Court reversed, holding that “[t]he function of the Court of Appeals * * * was to determine the appropriate criteria and then leave their application to the trial judge on remand.” 376 U.S. at 245, 84 S.Ct. at 772. Although the exact point decided was that the district judge should have an opportunity to reconsider the transfer with the impermissible factor excluded, the Court would hardly have directed a remand if refusal by him to comply with the limitations of the court of appeals would have warranted renewed issuance of the writ; the Court was concerned with the distribution of power, not with judicial etiquette.4 When Platt is read in the light of the Court’s earlier holdings on the limited scope of mandamus, see also Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383-385, 74 S.Ct. 145, 98 L.Ed. 106 (1953),5 neither the position stated by Judge Frank in Ford Motor Co. v. Ryan nor the slightly modified one here announced can stand.
I therefore concur in denying the writ, but on the basis that the petition seeks relief beyond our power to grant.
. Although the panel in that case was unanimous in refusing to compel the judge to order a transfer, three separate opinions were written. Judge Swan thought we had no power to issue the writ; Judge Frank, writing for Judge L. Hand and himself on the question of power, thought we could issue mandamus if the district judge had abused his discretion but, speaking for himself, that “we should accept his guess unless it is too wild” — not a very meaningful standard ; Judge L. Hand adopted a “clearly erroneous” test. Torres v. Walsh, 221 F.2d 319 (2 Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 746 (1955), refusing to compel two judges to rescind transfer orders, added the qualification that mandamus can issue only in “really extraordinary causes,” cf. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947), and not in “ordinary, run-of-the-mill type litigation which goes through the District Courts' from day to day.” Although Lykes Bros. SS. Co., Inc. v. Sugarman, 272 F.2d 679 (2 Cir. 1959), refusing to compel a transfer, is equivocal, it seems to have returned to the concept that the “extraordinary” test related to the ruling rather than the cause— or perhaps demanded both. See 272 F.2d at 680 and 683.
. In the fiscal year ending June 30, 3955, the average time for disposition of mandamus petitions in cases under 28 U.S.C. § 1404(a) ranged from less than a month in the 5th and 6th Circuits to about six months in the 1st, 3d, 4th and 7th. See Note, Appealability of 1404(a) Orders: Mandamus Misapplied, 67 Yale L.J. 322, 129, n. 27 (1957). In Chicago, R. I. & P. R. R. v. Igoe, 220 F.2d 299 (7 Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955), the writ issued two and a half years after the question was first raised in the district court — with two trips to the Court of Appeals, see 212 F.2d 378 (1954) and a subsequent petition for certiorari. See generally Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 776-777 (1957).
. “ * * * the risk of a party being injured by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus.
“We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon.”
. On remand Judge Platt refused to transfer, and the court of appeals issued the writ, Chief Judge Hastings again dissenting, 345 F.2d 681 (7 Cir. 1965). Finally, upon the Solicitor General’s suggestion of mootness, the Supreme Court granted certiorari, vacated the judgment and remanded the case with instruction to dismiss the mandamus proceeding as moot. 382 U.S. 456, 86 S.Ct. 643, 15 L.Ed.2d 522 (1966). The bickering over the place of trial of this government antitrust suit consumed more than three years.
. No broader view of the power of a court of appeals to issue mandamus was indicated by Koehring Co. v. Hyde Construction Co., 382 U.S. 362, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966), sustaining the right of the court of appeals itself to order a transfer under extraordinary circumstances where a district judge refused to comply with its mandate.