concurring in the judgment.
The statutory provision at the center of the present controversy, §6 (b)(5) of the Occupational Safety and Health Act of 1970, states, in relevant part, that the Secretary of Labor
“. . . in promulgating standards dealing with toxic materials or harmful physical agents . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.’’ 84 Stat. 1594, 29 U. S. C. 1655 (b)(5) (emphasis added).
According to the Secretary, who is one of the petitioners herein, §6 (b)(5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to set the standard for permissible exposure at the lowest level that “can be achieved at bearable cost with available technology.” Brief for Federal Parties 57. While the Secretary does not attempt to refine the concept of “bearable cost.” he apparently believes that a proposed standard is economically feasible so long as its impact “will not be such as to threaten the financial welfare of the affected firms or the general economy.” 43 Fed. Reg. 5939 (1978).
Respondents reply, and the lower court agreed, that § 6 (b)(5) must be read in light of another provision in the *672same Act, § 3 (8), which defines an “occupational health and safety standard” as
a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 84 Stat. 1591, 29 U. S. C. §652 (8).
According to respondents, § 6 (b)(5), as tempered by § 3 (8), requires the Secretary to demonstrate that any particular health standard is justifiable on the basis of a rough balancing of costs and benefits.
In considering these alternative interpretations, my colleagues manifest a good deal of uncertainty, and ultimately divide over whether the Secretary produced sufficient evidence that the proposed standard for benzene will result in any appreciable benefits at all. This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of Mr. Justice Stevens, The Chief Justice, Mr. Justice Powell, and Mr. Justice Marshall demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.
I
In his Second Treatise of Civil Government, published in 1690, John Locke wrote that “[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive *673grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.”1 Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress’ ability to delegate its authority to representatives of the Executive Branch: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark, 143 U. S. 649, 692 (1892).2
The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of powers was a two-sided coin. James Madison, in Federalist Paper No. 48, for example, recognized that while the division of authority among the various branches of government was a useful principle, “the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” The Federalist No. 48, p. 308 (H. Lodge ed. 1888).
This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government *674capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft, writing for the Court in J. W. Hampton & Co. v. United States, 276 U. S. 394 (1928), noted the practicalities of the balance that has tó be struck:
“[T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breách of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or ■ to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” Id., at 406.
During the third and fourth decades of this century, this Court within a relatively short period of time struck down several Acts of Congress on the grounds that they exceeded the authority of Congress under the Commerce Clause or under the nondelegation principle of separation of powers, and at the same time struck down state statutes because they violated “substantive” due process or interfered with interstate commerce. See generally It. Jackson, The Struggle for Judicial Supremacy 48-123 (1949). When many of these decisions were later overruled, the principle that Congress *675could not simply transfer its legislative authority to the Executive fell under a cloud. Yet in my opinion decisions such as Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), suffer from none of the excesses of judicial policymaking that plagued some of the other decisions of that era. The many later decisions that have upheld congressional delegations of authority to the Executive Branch have done so largely on the theory that Congress may wish to exercise its authority in a particular field, but because the field is sufficiently technical, the ground to be covered sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, “fill in the blanks,” or apply the standards to particular cases. These decisions, to my mind, simply illustrate the above-quoted principle stated more than 50 years ago by Mr. Chief Justice Taft that delegations of legislative authority must be judged “according to common sense and the inherent necessities of the governmental co-ordination.”
Viewing the legislation at issue here in light of these principles, I believe that it fails to pass muster. Read literally, the relevant portion of § 6 (b) (5) is completely precatory, admonishing the Secretary to adopt the most protective standard if he can, but excusing him from that duty if he cannot. In the case of a hazardous substance for which a “safe” level is either unknown or impractical, the language of § 6 (b) (5) gives the Secretary absolutely no indication where on the continuum of relative safety he should draw his line. Especially in light of the importance of the interests at stake, I have no doubt that the provision at issue, standing alone, would violate the doctrine against uncanalized delegations of legislative power. For me the remaining question, then, is whether additional standards are ascertainable from the legislative history or statutory context of § 6 (b) (5) or, if not, whether *676such a standardless delegation was justifiable in light of the “inherent necessities” of the situation.
II
One of the primary sources looked to by this Court in adding gloss to an otherwise broad grant of legislative authority is the legislative history of the statute in question. The opinions of Mr. Justice Stevens and Mr. Justice Marshall, however, give little more than a tip of the hat to the legislative origins of § 6 (b) (5). Such treatment is perhaps understandable, since the legislative history of that section, far from shedding light on what important policy choices Congress was making in the statute, gives one the feeling of viewing the congressional purpose “by the dawn’s early light.”
The precursor of § 6 (b)(5) was placed in the Occupational Safety and Health Act of 1970 while that bill was pending in the House Committee on Education and Labor. At that time, the section read:
“The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health, or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” §7 (a)(4), H. R. 16785, 91st Cong., 2d Sess., 49 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 943 (1971) (hereinafter Leg. Hist.).
Three aspects of this original proposal are particularly significant. First, and perhaps most importantly, as originally introduced the provision contained no feasibility limitation, providing instead that the Secretary “shall set the standard which most adequately assures” that no employee will suffer *677harm. Second, it would have required the Secretary to protect employees from “any” impairment of health or functional capacity. Third, on its face, although perhaps not in its intent, the provision applied to both health and safety standards promulgated under the Act.3
There can be little doubt that, at this point in its journey through Congress, §6 (b)(5) would have required the Secretary, in regulating toxic substances, to set the permissible level of exposure at a safe level or, if no safe level was known, at zero. When the Senate Committee on Labor and Public Welfare considered a provision identical in almost all respects to the House version, however, Senator Javits objected that the provision in question “might be interpreted to require absolute health and safety in all cases, regardless of feasibility. . . .” S. Rep. No. 91-1282, p. 58 (1970), Leg. Hist. 197. See also 116 Cong. Rec. 37327 (1970), Leg. Hist. 418. The Committee therefore amended the bill to provide that the Secretary “shall set the standard which most adequately and feasibly” assured that no employee would suffer any impairment of health. S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242 (emphasis added). The only additional explanation for this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained:
“[Standards promulgated under section 6 (b) shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific *678data. Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity or diminished life expectancy, by reason of exposure to the hazard involved, even though such exposure may be over the period of his entire working life.” S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147 (emphasis added).
Despite Senator Javits’ inclusion of the words “and feasibly” in the provision, participants in the floor debate immediately characterized § 6 (b) (5) as requiring the Secretary “to establish a utopia free from any hazards” and to “assure that there will not be any risk at alb” 116 Cong. Rec. 37614 (1970), Leg. Hist. 480-481 (remarks of Sen. Dominick). Senator Saxbe stated:
“When we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain. . . .
“I believe the terms that we are passing back and forth are going to have to be identified.” 116 Cong. Rec., at 26522, Leg. Hist. 345.
In response to these concerns, Senator Dominick introduced a substitute for the proposed provision, deleting the sentence at issue here entirely. He explained that his amendment would delete
“the requirement in section 6 (b) (5) that the Secretary will establish occupational safety and health standards which most adequately and feasibly assure to the extent possible that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life.
“This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all *679occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most ‘adequately’ and ‘feasibly’ assure the elimination of the danger would be the prohibition of the occupation itself.
“If the provision is intended as no more than an admonition to the Secretary to do his duty, it seems unnecessary and could, if deemed advisable be included in the legislative history.” (Emphasis in original.) 116 Cong. Rec., at 36530, Leg. Hist. 367.
Eventually, Senator Dominick and his supporters settled for the present language of § 6 (b)(5). This agreement resulted in three changes from the original version of the provision as amended by Senator Javits. First, the provision was altered to state explicitly that it applied only to standards for “toxic materials or harmful physical agents,” in apparent contrast with safety standards. Second, the Secretary was no longer admonished to protect employees from “any” impairment of their health, but rather only from “material” impairments. Third, and most importantly for our purposes, the phrase “most adequately and feasibly assures” was revamped to read “most adequately assures, to the extent feasible.”
We have been presented with a number of different interpretations of this shift. According to the Secretary, Senator Dominick recognized that he could not delete the seemingly absolute requirements of § 6 (b) (5) entirely, and instead agreed to limit its application to toxic materials or harmful physical agents and to specify that the Secretary was only to protect employees from material impairment of their health. Significantly, the Secretary asserts that his mandate to set such standards at the safest level technologically and eco*680nomically achievable remained unchanged by the Dominick amendment. According to the Secretary, the change in language from “most adequately and feasibly assures” to “most adequately assures, to the extent feasible,” represented only a slight shift in emphasis, perhaps suggesting “a preference for health protection over cost.” App. to Brief for Federal Parties 7a, n. 2. See also Brief for Federal Parties 59.
Mr. Justice Marshall reads this history quite differently. In his view, the version of § 6 (b) (5) that reached the Senate floor did not “clearly embod[y] the feasibility requirement” and thus was soundly criticized as being unrealistic. See post, at 693. It was only as a result of the floor amendments, which replaced “most adequately and feasibly assures” with “most adequately assures, to the extent feasible,” that the Secretary clearly was authorized to reject a standard if it proved technologically or economically infeasible. See also post, at 710, and 720-721, n. 34.
Respondents cast yet a third light on these events, focusing upon a few places in the legislative history where the words “feasible” and “reasonable” were used more or less interchangeably. See S. Rep. No. 91-2193, pp. 8-10 (1969), Leg. Hist. 38-40; 115 Cong. Rec. 22517 (1969) (Sen. Javits). It is their contention that, when Congress said “feasible,” it meant cost-justified. According to respondents, who agree in this regard with the Secretary, the meaning of the feasibility requirement did not change substantially between the version that left the Senate Committee on Labor and Public Welfare and the version that was ultimately adopted as part of the Act.
To my mind, there are several lessons to be gleaned from this somewhat cryptic legislative history. First, as pointed out by Mr. Justice Marshall, to the extent that Senator Javits, Senator Dominick, and other Members were worried about imposing upon the Secretary the impossible burden of assuring absolute safety, they did not view § 3 (8) of the Act *681as a limitation on that duty. I therefore find it difficult to accept the conclusion of the lower court, as embellished by respondents, that § 3 (8) acts as a general check upon the Secretary’s duty under § 6 (b) (5) to adopt the most protective standard feasible.
Second, and more importantly, I believe that the legislative history demonstrates that the feasibility requirement, as employed in § 6 (b)(5), is a legislative miragé, appearing to some Members but not to others, and assuming any form desired by the beholder. I am unable to accept Mr. Justice Marshall’s argument that, by changing the phrasing of §6 (b)(5) from “most adequately and feasibly assures” to “most adequately assures, to the extent feasible,” the Senate injected into that section something that was not already there.4 If I am correct in this regard, then -the amendment introduced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace left Senator Dominick free to object to the amended provision on the same grounds. Perhaps Senator Dominick himself offered the aptest description of the feasibility requirement as “no more than an admonition to the Secretary to do his duty. . . .” 116 Cong. Rec. 36530 (1970); Leg. Hist. 367.
In sum, the legislative history contains nothing to indicate that the language “to the extent feasible” does anything other *682than render what had been a clear, if somewhat unrealistic, standard largely, if not entirely, precatory. There is certainly nothing to indicate that these words, as used in § 6 (b) (5), are limited to technological and economic feasibility. When Congress has wanted to limit the concept of feasibility in this fashion, it has said so, as is evidenced in a statute enacted the same week as the provision at issue here.5 I also question whether the Secretary wants to assume the duties such an interpretation would impose upon him. In these cases, for example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not because it was economically or technologically infeasible, but rather because “different levels for different industriés would result in serious administrative difficulties.” 43 Fed. Reg. 5947 (1978). See also ante, at 650 (plurality opinion). If § 6 (b)(5) authorizes the Secretary to reject a more protective standard in the interest of administrative feasibility, I have little doubt that he could reject such standards for any reason whatsoever, including even political feasibility.
Ill
In prior eases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946), for example, this Court concluded that certain seemingly vague delegations “derive [d] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.” Here, however, there is little or nothing in the *683remaining provisions of the Occupational Safety and Health Act to provide specificity to the feasibility criterion in § 6 (b) (5). It may be true, as suggested by Mr. Justice Marshall, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it, falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry’s breaking point.
Nor are these eases like Lichter v. United States, 334 U. S. 742, 783 (1948), where this Court upheld delegation of authority to recapture “excessive profits” in light of a pre-existing administrative practice. Here, the Secretary’s approach to toxic substances like benzene could not have predated the enactment of § 6 (b) (5) itself. Moreover, there are indications that the postenactment administrative practice has been less than uniform. For example, the Occupational Safety and Health Review Commission (OSHRC), the body.charged with adjudicating citations issued by the Secretary under the Act, apparently does not agree with the definition of “feasibility,” advanced in these cases by the Secretary. In Continental Can Co., 4 OSHC 1541, 1976-1977 OSHD ¶ 21,009 (1976), the Commission reasoned:
“Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced.” Id., at 1547, 1976-1977 OSHD, p. 25,256.
Furthermore, the record in these cases contains at least one indication that the Secretary himself was, at one time, quite uncertain what limits § 6 (b) (5) placed upon him. In announcing the proposed 1 ppm standard and discussing its economic ramifications, the Secretary explained that “[w]hile the precise meaning of feasibility is not clear from the Act, it is *684OSHA’s view that the term may include the economic ramifications of requirements imposed by standards.” 43 Fed. Reg. 5934 (1978). This candid and tentative statement falls far short of the Secretary’s present position that economic and technological considerations set the only limits on his duty to adopt the most protective standard. Finally, as noted earlier, the Secretary has failed to apply his present stringent view uniformly, rejecting in these cases a lower standard for some industries on the grounds of administrative convenience.
In some cases where broad delegations of power have been examined, this Court has upheld those delegations because of the delegatee’s residual authority over particular subjects of regulation. In United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 307 (1936), this Court upheld a statute authorizing the President to prohibit the sale of arms to certain countries if he found that such a prohibition would “contribute to the reestablishment of peace.” This Court reasoned that, in the area of foreign affairs, Congress “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Id., at 320. Similarly, United States v. Mazurie, 419 U. S. 544 (1975), upheld a broad delegation of authority to various Indian tribes to regulate the introduction of liquor into Indian country. According to Mazurie limitations on Congress’ authority to delegate legislative power are “less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.” Id., at 556-557. In the present cases, however, neither the Executive Branch in general nor the Secretary in particular enjoys any independent authority over the subject matter at issue.
Finally, as indicated earlier, in some cases this Court has abided by a rule of necessity, upholding broad delegations of authority where it would be “unreasonable and impracticable *685to compel Congress to prescribe detailed rules” regarding a particular policy or situation. American Power & Light Co. v. SEC, 329 U. S., at 105. See also Buttfield v. Stranahan. 192 U. S. 470, 496 (1904). But no need for such an evasive standard as “feasibility” is apparent in the present cases. In drafting § 6 (b)(5), Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear from the previously noted remark of Senator Saxbe, who stated that “[w]hen we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain.” 116 Cong. Rec. 36522 (1970), Leg. Hist. 345. |That Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected land is capsulized in Senator Saxbe’s un-fulfilléd promise that “the terms that we are passing back and forth are going to have to be identified.” Ibid.
IV
As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. See Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U. S. 258, 276 (1967) (Brennan, J., concurring in result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an *686“intelligible principle” to guide the exercise of the delegated discretion. See J. W. Hampton & Co. v. United States, 276 U. S., at 409; Panama Refining Co. v. Ryan, 293 U. S., at 430. Third, and derivative of the second, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. See Arizona v. California, supra, at 626 (Harlan, J., dissenting in part); American Power & Light Co. v. SEC, supra, at 106.
I believe the legislation at issue here fails on all three counts. The decision whether the law of diminishing returns should have any place in the regulation of toxic substances is quintessentially one of legislative policy. For Congress to pass that decision on to the Secretary in the manner it did violates, in my mind, John Locke’s caveat — reflected in the cases cited earlier in this opinion — that legislatures are to make laws, not legislators. Nor, as I think the prior discussion amply demonstrates, do the provisions at issue or their legislative history provide the Secretary with any guidance that might lead him to his somewhat tentative conclusion that he must eliminate exposure to benzene as far as technologically and economically possible. Finally, I would suggest that the standard of “feasibility” renders meaningful judicial review impossible.
We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the non-delegation doctrine has fallen into the same desuetude as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it, “a case of death by association.” J. Ely, Democracy and Distrust, A Theory of Judicial Review 133 (1980). Indeed, a number of observers have suggested that this Court should once more take up its burden of ensuring that Congress does not unnecessarily delegate important choices of social policy to po-*687liticálly unresponsive administrators.6 Other observers, as might be imagined, have disagreed.7
If we are ever to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it. It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge. Far from detracting from the substantive authority of Congress, a declaration that the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act constitutes an invalid delegation to the Secretary of Labor would preserve the authority of Congress. If Congress wishes to legislate in an area which it has not previously sought to enter, it will in today’s political world undoubtedly run into opposition no matter how the legislation is formulated. But that is the very essence of legislative authority under our system. It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people. When fundamental policy decisions underlying important legislation about to be enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process.
I would invalidate the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act of 1970 as it applies to *688any toxic substance or harmful physical agent for which a safe level, that is, a level at which “no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to [that hazard] for the period of his working life,” is, according to the Secretary, unknown or otherwise “infeasible.” Absent further congressional action, the Secretary would then have to choose, when acting pursuant to § 6 (b) (5), between setting a safe standard or setting no standard at all.8 Accordingly, for the reasons stated above, I concur in the judgment of the Court affirming the judgment of the Court of Appeals.
J. Locke, Second Treatise of Civil Government, in the Tradition of Freedom, ¶ 141, p. 244 (M. Mayer ed. 1957). In the same treatise, Locke also wrote that “[t]he legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.” Ibid.
As early as 1812, this Court had considered and rejected an argument that a statute authorizing the President to terminate a trade embargo on Britain and France if those two nations ceased violating “the neutral commerce of the United States” delegated too much discretion to the Executive Branch. See The Brig Aurora v. United States, 7 Cranch 382, 383, 386, 388.
Respondents argue that, despite its seemingly general application, the original version of § 6 (b) (5) actually referred only to health hazards as opposed to safety hazards. See Addendum B to Brief for Respondents American Petroleum Institute et al. 5b-6b. In support of this proposition, they cite a portion of the legislative history where the House Committee on Education and Labor stated that the proposed version of § 6 (b) (5) would apply when the Secretary set an “occupational health standard.” H. R. Rep. No. 91-1291, p. 18 (1970), Leg. Hist. 848.
The legislative history indicates strongly that Senator Dominick himself saw little, if any, difference between the phrases “most adequately and feasibly assures” and “most adequately assures, to the extent feasible.” In the course of his earlier attempt to delete the first sentence of § 6 (b) (5) entirely, he paraphrased the unamended version of that section as requiring the Secretary to promulgate standards that “most, adequately and feasibly assure to the extent possible” that no employee would suffer harm. See 116 Cong. Rec. 36530 (1970), Leg. Hist. 367 (emphasis added). Unless Senator Dominick found a significant difference between the words “possible” and “feasible,” it is clear that there is little difference between Senator Dominick’s perception of what the unamended section required in the way of feasibility and what that section required after his amendment.
Sections 211 (c)(2)(A) and (B) of the Clean Air Act, as amended on Dec. 31, 1970, 84 Stat. 1698, authorize the Environmental Protection Agency to regulate, control, or prohibit automotive fuel additives after “consideration of other technologically or economically feasible means of achieving emission standards. . . .” 42 U. S. C. § 7545 (c) (2) (A) (1976 ed., Supp. II) (emphasis added).
See J. Ely, Democracy and Distrust, A Theory of Judicial Review 131-134 (1980); J. Freedman, Crisis and Legitimacy, The Administrative Process and American Government 78-94 (1978); T. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 129-146, 297-299 (1969); Wright, Beyond Discretionary Justice, 81 Yale L. J. 575, 582-587 (1972); Waist-Deep in Regulation, Washington Post, Nov. 3, 1979, p. A10, col. 1. Cf. W. Douglas, Go East, Young Man 217 (1974).
See K. Davis, Discretionary Justice: A Preliminary Inquiry 49-51 (1969); Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1693-1697 (1975). Cf. Jaffe, The Illusion of the Ideal Administration, 86 Harv. L. Rev. 1183, 1190, n. 37 (1973).
This ruling would not have any effect upon standards governing toxic substances or harmful physical agents for which safe levels are feasible, upon extant standards promulgated as “national consensus standards” under §6 (a), nor upon the Secretary’s authority to promulgate “emergency temporary standards” under § 6 (c).