concurring in the judgment.
There is language in the Court’s opinion which might be misinterpreted as rigidly limiting the application of “federal common law” to only those situations where the rights and obligations of the Federal Government are at issue. I do not agree with such a restrictive approach.
I cannot read Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), and Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29 (1956) as, in all circumstances, precluding the application of “federal common law” to all matters involving only the rights of private citizens. Certainly, in a diversity action, state substantive law should not be ousted on the basis of “ 'an amorphous doctrine of national sovereignty’ divorced from any specific constitutional or statutory provision and premised solely on the argument 'that every authorized activity of the United States represents an exercise of its governmental power.’ ” United States v. Little Lake Misere Land Co., 412 U. S. 580, 592 n. 10 (1973), quoting United States v. Burnison, 339 U. S. 87, 91, and 92 (1950). However, I am not prepared to foreclose, at this point, the possibility that there may be situations where the rights and obligations of private parties are so dependent on a specific exercise of congressional regulatory power that “the Constitution or Acts of Congress 'require’ otherwise than that state law govern of its own force.” *35United States v. Little Lake Misere Land Co., supra, at 592-593.
In. such a situation, I would not read Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966), to preclude a choice of “federal common law” simply because there is no specific federal legislation governing the particular transaction at issue. Once it has been determined that it would be inappropriate to apply state law and that federal law must govern, “the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts.” United States v. Little Lake Misere Land Co., supra, at 593. In short, although federal courts will be called upon to invoke it infrequently, there must be “ ‘federal judicial competence to declare the governing law in an area comprising issues substantially related to an established program of government operation.’ ” Ibid., quoting Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797, 800 (1957).
Although in my view the issue is close, I conclude, on balance, that the cause of action asserted by the plaintiffs is not so intimately related to the purpose of the Airport and Airway Development Act of 1970, 84 Stat. 219, as amended, 49 U. S. C. § 1701 et seg. (1970 ed. and Supp. V), as to require the application of federal law in this case. See H. R. Rep. No. 91-601 (1969). Accordingly, the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), applies, and I join the judgment of the Court remanding the cases for a determination of the correct outcome under Georgia law.