(concurring).
1. I agree that, in the light of Reeves v. Beardall, 1942, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478, the order here, dismissing the third-party and fourth-party complaints filed by the several defendants, is so independent of any subsequent final order as to plaintiff’s complaint that the order would have been final, and therefore appealable, before the amendment of Rule 54(b) in 1948. I agree, too, that that amended Rule applies exclusively to cases where there are multiple claims. I also agree that the Rule has this effect: If, in a multiple-claims case, the trial judge fails to enter a “determination” of the kind described in the Rule,1 then, although otherwise the order would have been final and appealable under 28 U.S.C.A. § 1291, it is interlocutory and not appealable.1a For, as we said very recently in Republic of China v. American Express Company, 2 Cir., 190 F.2d 334 under the Rule the trial judge’s silence is the equivalent of his express reservation of power to change the order at any time before the case ends, and such an express reservation had always kept an order interlocutory. We explicitly stated that the “only effect” of the Rule was to equate such silence with an express reservation. Thus interpreted, the Rule does not alter -the statutory jurisdiction of the appellate courts fixed by 28 U.S.C.A. §§ 1291 and 1292.
Such an interpretation of the Rule is in line with the Supreme Court’s remarks about it in Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299. There the Court, holding final an order entered before the Rule was amended, referred 338 U.S. at pages 515-516, 70 S.Ct. at page 325, to the fact that the trial judge had said nothing to show that he intended to reserve power to change the order. The Court remarked, 338 U.S. at page 512, 70 S.Ct. at page 324, that probably amended Rule 54(b), if in effect, would have resulted in a contrary decision.'.So I think it would: the judge’s silence would have made the order interlocutory. But the Court did not even intimate that the amended Rule wás designed to do more than to allow the trial judge, by omitting a “determination,” to keep interlocutory an order which otherwise would be final.
2. This court has no jurisdiction of appeals (except as to the few permitted by 28 U.S.C.A. § 1292, not here applicable) other than that created by § 1291, which provides: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts * * Consequently, I do not agree with Judge Clark’s dictum that amended Rule 54(b) may be interpreted to authorize a trial judge, by making a “determination,” to render final and appealable an order which, absent that Rule, would have been interlocutory and not appealable under § 1291. For if that Rule were so interpreted, then I think it would be.invalid, as beyond the statutory power of the Supreme Court. If I am correct, then, obviously, the Rule should not be thus construed.
The Supreme Court has said that the 1934 statute, which empowered it to pro*177mulgate procedural rules for “the district courts”1b gave it no authority to affect the jurisdiction of any of the courts. In Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 425, 85 L.Ed. 479, the Court, citing and construing this very Rules-statute, referred to “the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute.” In support of this statement, the court cited several cases. In one of those cases, Hudson v. Parker, 156 U.S. 277, 284, 15 S.Ct. 450, 453, 39 L.Ed. 424, the Court said: “This court cannot, indeed, by rule, enlarge or restrict its own inherent jurisdiction and powers, or those of the other courts of the United States * * *.” Also cited in the Sibbach case is Davidson Bros. Marble Co. v. United States ex rel. Gibson, 213 U.S. 10, 18, 29 S.Ct. 324, 327, 53 L.Ed. 675, where it was said: “The rule substantially impairs his right to appeal to this court, — a right which is conferred by statute.” In United States v. Sherwood, 312 U.S. 584, 589-590, 61 S.Ct. 767, 771, 85 L.Ed. 1058, the Court said: “An authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge that jurisdiction and the Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C. § 723b, authorizing this Court to prescribe rules of procedure in civil actions gave it no authority to modify, abridge or enlarge the substantive rights of litigants or to enlarge or diminish the jurisdiction of federal courts.” See also Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635, 44 S.Ct. 220, 68 L.Ed. 480; Venner v. Great Northern Railway Co., 209 U.S. 24, 25, 34-35, 28 S.Ct. 328, 52 L.Ed. 666; Cf. Chase Watch Corp. v. Heins, 284 N.Y. 129, 134, 29 N.E.2d 646; Benton v. Institute of Posturology, 243 Wis. 514, 11 N.W.2d 133, 134; Hunteman v. New Orleans Public Service, Inc., 5 Cir., 119 F.2d 465, 466.
If the Rule did authorize a trial judge to convert an interlocutory order into a final order, the consequence would be this: If two different trial judges in two different but identical cases entered identical orders of a kind not appealable under § 1291, one of those orders would become appealable merely because the one trial judge, in his discretion, granted an appeal, while the other identical order would remain unappealable merely because the other trial judge, in his discretion, chose not to allow an appeal. Surely, if, under the Rule, appealability of an otherwise interlocutory order turns entirely on the individual trial judge’s willingness to say that delay is or is not just, etc., then the Rule strikingly affects appellate jurisdiction by authorizing trial judges to play on it like an accordion.
Moore, shortly after the adoption of the Rules, showed that the Rules-statute conferred no power to affect appellate jurisdiction. He said :2 “Rule 82 provides that the rules ‘shall not be construed to extend or limit the jurisdiction of the district courts.’ Since the Federal Rules were promulgated for the district courts, it was not technically proper to provide in Rule 82 that the rules should not extend or limit the appellate jurisdiction of the circuit courts of appeals or the Supreme Court. But it must be apparent that the same policy which prompted Rule 82 demands that appellate jurisdiction as established by acts of Congress be not affected. This is further borne out 'by the evolution of Rule 54(b). Rule 63(b) of the May, 1936 Draft [counterpart of Federal Rule 54(b)] provided.: ‘(b) Judgment in Favor of and Against Various Parties and at Various Stages. A judgment or final order may be entered by the court upon any issue or issues determined in favor of or against any party or parties at any stage of an action, and the action may proceed as to the remaining issues or parties as justice may require. A judgment or order entered pursuant to this rule shall be final for all purposes, including the right to appeal therefrom.’ The danger of that rule was that appellate jurisdiction was probably materially enlarged. Thus *178assume that A sited X and X put A’s case in issue and also pleaded an affirmative defense, such as the statute' of limitations. It may be highly desirable for the court to dispose of the affirmative defense before proceeding with wrhat may be an involved trial on the other issues.' But if the court entered a' judgment on the issues raised 'by the affirmative defense, and the rule quoted might easily be construed to give it such power, the time for appeal would begin to run, and if an appeal were taken, the appellate jurisdiction would be enlarged. Furthermore, under that rule if A sued X and X pleaded a counterclaim, compulsory in character because it arose out of the transaction or occurrence sued on, and either the claim or the counterclaim was disposed of separately, the rule was open to the construction that separate judgments could be entered. Thus the time for appeal would begin to run upon each judgment as entered, and again- appellate jurisdiction would be enlarged. Subdivision (b) was, therefore, re-drafted in the April, 1937 Draft as it now stands.” Here Moore was writing of Rule 54(b) before its more recent amendment, in 1948. After referring to Rule 42(b), he continued: “The, function of Rule 54(b) is to complement that rule in such a manner that the court is given broad power to enter separate judgments, but so restricted that appellate jurisdiction is not affected.”
More recently, .Moore, referring to the present Rule 54(b),-has, in a few brief sentences' somewhat'shifted his position;3 but it is difficult to reconcile his earlier and his more recent' views. As I understand it, this is his recent position:
The Supreme Court has the power, often exercised; to interpret § 1291, and thereby to decide what orders are final under that statute. The Court may also validly interpret that statute by a Rule. This it has done in Rule 54(b) in respect of some orders where there are multiple claims. Therefore that Rule, insofar as it bears on appellate jurisdiction, is not invalid, since it is nothing but a revised interpretation of § 1291, in a sort of judicially codified form.
I answer that argument as follows: I shall assume that the Court may, in a Rule, set forth its interpretation of “final” in § 1291, and in such a Rule may depart from earlier interpretations found in its decisions. But that is not at all what Rule 54(b) does, if it is construed as Moore and Judge Clark (in 'his dictum) construe it. For, so construed, the Rule does not embody a revised interpretation by the Supreme Court of “final” in § 1291; instead, according to Moore and Judge Clark, the Rule declares that any trial judge, by his mere fiat, may effectively pronounce final an order of a kind the Supreme Court, when interpreting § 1291, has held not final within the proper meaning of that section. If, then, the Clark-Moore construction of the Rule is adopted, the Supreme Court, in that Rule, has not interpreted § 1291 but disregarded it: the Court has ruled that an order is final, not because it has finality under § 1291 correctly interpreted, but simply and solely because a particular trial judge determines that it shall be treated as final — although another trial judge, on the same day in an adjacent courtroom, determines that an identical order shall be treated as not final. The Rule construed in this way shows up not as a judicially codified interpretation of § 1291 but as legislation amending that section to enlarge the jurisdiction of the upper courts at the discretion of the several trial judges. But we have seen that the Supreme Court has told us that an amendment of that jurisdictional statute by a Rule would be invalid.
Judge Clark, to be sure, apparently so construes the Rule that a trial judge could not, by his mere fiat, render appealable every kind Of order which, ^ absent the Rule, was not appealable;4 Judge Clark reads the Rule as not permitting an appeal from an order which is too glaringly interlocutory.4a This limitation, I think, would still leave the Rule invalid, since it *179would still sanction appeals from all sorts of orders which, according to Supreme Court decisions interpreting § 1291, are not final.5
3. Because the Rules, under the existing statute, cannot do the needful, several years ago I suggested that there is pressing need, in the interest of justice, to amend the existing statutory provisions relative to appeals.5a ’ For the existing provisions give rise to serious injustices — for example, such as these: (1) In a suit involving but two parties and no multiple claims, a litigant, believing an order interlocutory and not appealable, fails to appeal from it; when, however, the entire case is over, and he then appeals, the upper court tells him that the earlier order was appealable, and that, because he did not appeal from it in time, he is now hound by it, although it was erroneous.6 (2) In a suit with several defendants charged jointly, the trial court, previous to trial, erroneously orders and dismisses the one solvent defendant. Being unable to appeal from that order, plaintiff must go through a long, expensive trial, lasting several months, in which, he obtains a judgment that is worthless practically, before he can procure a reversal of the order dismissing the solvent defendant, and thus be able to try and to prove his case against that defendant.7 I could give other illustrations showing that many fruitless, expensive, and time-consuming trials stem from the appeal statute.
The dark clouds which today envelop “finality” also add considerably to the burdens of federal appellate courts. This court spends a very considerable amount of effort, each term, deciding whether or not orders are appealable. Frequently we devote as much time to answering such a question as we would need to decide the appeal on the merits; often, in truth, we must actually consider all the issues involved in the merits in order to arrive at a conclusion that we cannot legitimately consider them. The preclusion of appeals from most interlocutory orders, designed as a labor-saving device, has become one “which causes more labor than it saves.” 8 Irked by an unjust delay, sometimes we resort to this device: We write an opin*180ion saying we have no jurisdiction, but actually, although obliquely, stating how we would have decided the appeal if legitimately w'e could have entertained it.9 To use such a device is tempting. But (although at least once I have acquiesced in its use) it now seems to me undeniably improper : Either we have power to decide a case on the merits or we do not; if not, then we ought not, ultra vires, obliquely express our views on the merits since, in doing so, we are giving a mere advisory opinion, forbidden by the Constitution. Moreover, the use of such a device means this: Litigants bold enough to ask us to hear appeals from non-appealable orders sometimes, in actual effect, receive decisions on the merits from us, while other litigants, mindful of the limitations on our appellate jurisdiction, do not. But the significance of our making such improper decisions is this: In rendering them, we recognize the injustices that stem from the existing appeal statute. Occasionally, application to us for a writ of mandamus suffices to allow us to dispose of an order which is unappealable.10 But that method is seldom available.11
As the Supreme Court has said, there are two competing considerations vis a vis appealability, “the most important of which are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” 12 In large measure, the inability to reconcile satisfactorily these two considerations derives from the statutes on the subject of appeals.
In Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, note 3b, with the concurrence of Judge Learned Hand, I suggested, as the way out of this judicial swamp, a new statute amending these statutes. Amplifying that suggestion,13 I now venture to propose a statute (modelled somewhat on the Supreme Court certiorari statute) which will confer on each court of appeals the authority, in its discretion, to allow an appeal from any order that is not final, whenever delay resulting from denial of the appeal will work substantial injustice by way of markedly heavy expense or great waste of time and effort. Such discretionary appeals from interlocutory orders would be in addition to interlocutory appeals now allowed under 28 U.S.C.A. § *1811292. But all interlocutory appeals in bankruptcy (most of which are now as of right) would ‘be made discretionary.
To avoid unfair entrapment of litigants, the new statute should provide that discretionary appeals are to be permissive, not mandatory, so that failure to take or seek an appeal from an interlocutory order will he no bar to an appeal when the order becomes final.13a Besides authorizing a party to seek -an interlocutory discretionary appeal, it might be well to incorporate the suggestion of Moore and Vestal14 that the trial judge be authorized, by a certificate, to “invoke the discretionary, not the obligatory, jurisdiction of the courts of appeals” as to all interlocutory orders not now appealable under 28 U.S.C.A. § 1292.
It seems to me that it would be most unwise to provide by statute (after the manner in which Judge Clark in his dictum interprets Rule 54(b) as to suits where there are multiple claims) that a trial judge, in his discretion, may make interlocutory orders appealable: (1) Such a provision (as observed above) would result in undesirable and unjust lack of uniformity. (2) Moreover, it might well flood the upper courts with frivolous appeals. (3) In addition, as the trial judge is far less likely than the upper court to perceive a probable error in his order, he may bar an interlocutory appeal when, in justice, there should be one.
The proposed new statute — leaving it wholly to the discretion of the appeal courts to allow interlocutory appeals, except those now allowed by 28 U.S.C.A. § 1292 — is not open to the objection that it would inflict on the litigants in the federal courts the evils of the practice in the New York courts, where a host of interlocutory appeals are not subject to any court’s discretion but are as of right. Indeed, the proposal, by bringing many ridiculous interlocutory appeals in bankruptcy within appellate discretion, would tend markedly to reduce the volume of federal appeals.
I advance these proposals in the belief that there is no impropriety in suggesting, in a judicial opinion, an amendment to a statute. Thus this court recently urged a statutory change to enlarge the powers of the F.B.I.15
. I use “determination,” for convenience, to include the trial judge’s “express determination that there is no, just reason for delay” and his “express direction for the entry of judgment.”
. See Moore, Commentary On The Judicial Code (1849) 518, as to the. possible use of mandamus when the trial judge’s failure to make a “determination” is obviously irrational.
Perhaps mandamus would be proper where, in a multiple-claim case, the trial judge dismissed an intervention when intervention' was a matter of right, but failed-to enter a “determination.” Perhaps, however, such an order may be regarded as final and “collateral,” within the doctrine of Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404, and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and therefore not covered by Rule 54(b).
. 48 Stat. 1064 (1034), formerly 28 U.S.C. § 723b, now 28 U.S.C.A. § 2072.
. 3 Moore, Federal Practice (1938) 3155-3157.
. Moore, Commentary on The Judicial Code (1949) 512-517.
. Moore’s position is similar.
. Because of the novelty of amended Kule 54(b), its meaning was, at first, not too *179clear. As a consequence, various interpretations wore suggested which, on more mature reflection, now appear 'untenable. Thus in Flegenheimer v. Manitoba Sugar Co. Ltd., 2 Cir., 182 F.2d 742, 743, this court indicated that, in a proper case, if the trial judge failed to make a “determination,” the appeal court could perhaps make one of its own, and entertain the appeal. In Clark v. Taylor, 2 Cir., 163 F.2d 940, 951, note 12, dissenting opinion, I mistakenly expressed (although tentatively) the view that perhaps the Rule was intended to allow the trial judge to render an order appealable when the right of appeal would have been doubtful before the Rule went into operation. As Judge Clark says, in note 2 of his opinion in the in•stant case, he has modified his views expressed in Lo Bue v. United States, 2 Cir., 178 F.2d 528, 531, note 1. Similarly, Judge Clark at. one time interpreted original .Rule 54(b) in a manner from which later he somewhat deviated; see discussion of his opinions in 3 Moore, Federal Practice, 1950 Supplement, § 54.-02. In Audi Vision, Inc., v. R. C. A. Mfg. Co., 2 Cir., 136 F.2d 621, 624, 147 A.L.R. 574, Judge Clark said that the “rules do not affect jurisdiction or deal with the powers of appellate courts.”
. Moreover, this interpretation would require the upper courts, in each case, to decide whether an order was or was not glaringly interlocutory.
If the Rule were interpreted as Judge Clark interprets it, the question of its validity could be raised: In Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444, 66 S.Ct. 242, 246, 90 L.Ed. 385, the Supreme Court announced that “The fact that this Court promulgated the rules * * * does not foreclose consideration of their validity * * Cf. 26 Virginia L.Rev. (1940) 823-824.
. Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, note 3b.
. See, e.g., Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. (3932) 539.
. Cf. Audi Vision, Inc. v. R. C. A. Mfg. Co., 2 Cir., 136 F.2d 621, 626, note 3, concurring opinion, 147 A.L.R. 574; Hunteman v. New Orleans Public Service, Inc., 5 Cir., 119 F.2d 465, 466; Bank of Rondout v. Smith, 156 U.S. 330, 334 (second full paragraph), 15 S.Ct. 358, 39 L.Ed. 441.
. Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. (1932) 539.
. See, e.g., United States v. Braunstein, 2 Cir., 168 F.2d 749, 750; Audi Vision, Inc., v. R. C. A. Mfg. Co., 2 Cir., 136 F.2d 621, 626, 147 A.L.R. 574; cf. United States v. Isthmian Steamship Co., 2 Cir., 187 F.2d 662. I concurred in United States v. Braunstein, supra, but regret having done so.
. See, e.g., Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499; Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862; Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330; Ex parte Peterson, 253 U.S. 300, 305, 40 S.Ct. 543, 64 L.Ed. 919; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Roche v. Evaporated Milk Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; United States Alkali Export Association v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554; Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Moore, Commentary On The Judicial Code (1949), 468-469, 509-510.
. See, e. g., Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Bank, Line v. United States, 2 Cir., 163 F 2d 133; Ward Baking Co. v. Holtzoff, 2 Cir., 164 F.2d 34.
. Dickinson v. Petroleum Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299.
Perhaps they can be stated as two doctrines both aiming to eliminate undesirable delays: “The first doctrine * * * in order to ‘protect from delay the progress .of the trial,’ bars an appeal from an order, made in the course of a shit not yet concluded, when the appeal will lead to ‘the piecemeal disposition of what for practical purposes is a single controversy,’ and will result in ‘separate reviews of the component elements in a unified cause.’ The second doctrine * * * again in order to discourage delays, permits an immediate appeal from an order dismissing one of two distinct claims ‘arising out of wholly separate and distinct transactions.’ ” Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., 2 Cir., 154 F.2d 814, 824-825, dissenting opinion.
. See Clark v. Taylor, 2 Cir., 163 F.2d 940, 952, note 12, dissenting opinion; American Machine & Metals v. De Bothezat Impeller Co., 2 Cir., 173 F.2d 890, 893, dissenting opinion.
See also 47 Mich.L.Rev. (1948) 233, 241.
. This is now true with respect to interlocutory orders appealable under 28 U.S.C.A. § 1292. Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir., 152 F.2d 79, 80-81.
. Cf. Moore and Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va.D.Rev. (1949) 1, 45.
. United States v. Coplon, 2 Cir., 185 F.2d 629, 640; see also United States v. Mook, 2 Cir., 125 F.2d 706; D. Hand, J., in Parke-Davis & Co. v. H. K. Mulford Co., C.C., 189 F. 95, 115; Cardozo, A Ministry of Justice, 35 Harv.L.Rev. (1921) 113.