I concur in the result. Judge Burger’s opinion presents the background *608of this case in detail. I agree with some aspects of his opinion — particularly the conclusions in Part I and Part IV. As to other aspects, I am either in disagreement or find it unnecessary to define my position. It would unduly protract and delay our disposition for me to make a point by point analysis. Accordingly I confine myself at this time to a relatively sparse, almost topic-sentence, statement of my approach, as follows:
1. The complaint on its face presents a matter within the subject-matter jurisdiction of the District Court. It alleges a claim arising under the Constitution, there is a case or controversy, and there exists a Federal statute giving district courts jurisdiction to consider such a case, namely, 28 U.S.C. § 1331. The fact that this is a novel law suit does not negative jurisdiction. Baker v. Carr. 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
2. I do not feel required to decide appellees’ contention that the case lacks justiciability, a concept that I think was developed in Baker v. Carr as defining the kind of case or issue that is inherently inappropriate for determination by any court.
For example, I am not prepared to say at this juncture that a complainant charging an unconstitutional exclusion from Congress avowedly put on racial or religious grounds cannot obtain a declaratory judgment or other relief. Nor do I consider whether appellant Powell may have available other judicial remedies.
3. In my view the issue presented by the complaint is of such a nature that dismissal is appropriate in the exercise of sound judicial discretion.
Plaintiffs were seeking remedies— mandamus; equity decree; declaratory judgment — each of which is not necessarily automatically available to one asserting (and even establishing) the underlying right. In an action seeking such remedies a court has discretion in deciding whether, when and how far to consider the merits.1
4. For present purposes I assume appellants are correct in their assertion that Article I, Section 5, Cl. 1 of the Constitution is exclusive in stating conditions of eligibility for Congressmen. But that does not mean that appellant Powell was immune from exclusion on grounds that would justify expulsion under Article I, Section 5, Cl. 2.
The record before us shows that the exclusion by the House of appellant Powell was by a vote of 307 to 116, on a motion put forward by its sponsor, Congressman Thomas Curtis of Missouri, on the ground that Mr. Powell’s conduct was such as to warrant his expulsion under Article I, Section 5, Cl. 2 of the Constitution if he were seated, and that he should therefore be excluded at the outset.
Certainly members of the House, who cannot be questioned in court for action taken within a “sphere of legitimate legislative activity,”2 can, without being *609subject to court disapproval, expel a member they find to have mis-used travel credit cards, and kept on his payroll a person (his wife) who resided neither in his District nor in the District of Columbia. The fact that the House is not a court, with power to enter a judgment of conviction for violation of laws, does not preclude it from concluding that the pertinent acts were committed by the Congressman, as a part of an ultimate determination of lack of fitness for service in the House, a determination entrusted to the House by Article 1, Section 5, Clause 2 of the Constitution.
5. Appellant Powell seems to have been of the view that whatever grounds the House may have had to expel him once he was seated, they could not be used as grounds to exclude him without seating him.
On this point I think that in a case like Powell’s where the record (including reports of legislative committees) provides abundant indication that there was at least a substantial question of misconduct in Congressional office, the view of Congressman Curtis was permissible under the Constitution, and appellants’ contention to the contrary must be rejected.
As to the interim period, I am at least reassured by the provision in H.R.Res. 1 of the 90th Congress, 1st Sess., adopted after debate in which Mr. Powell participated, that pending the investigation and report by the Select Committee and House action thereon Mr. Powell was to receive the pay, allowances and emoluments authorized for Members of the House, though he was not to be sworn in or occupy a seat in the House.
As to the right of the other appellants to be represented during the interim period, they stand on no higher ground than the claim of appellant Powell to be seated.3
Appellants say in rebuttal, inter alia, that the theory advanced by Congressman Curtis is not available to appellees since the House did not accept the need for a 2/s vote, which Mr. Curtis recognized as essential. The Speaker announced, on a parliamentary inquiry, that only a majority vote was required for exclusion of appellant Powell.
This contention is not without force. But assuming, arguendo, that the procedure used to exclude Powell may have been improper that does not mean he is entitled to maintain an action for discretionary relief of a nature that brings a court close to confrontation with members of the coordinate legislative branch of government. Thus, a court may decline to entertain an action based on such a procedural defect unless it appears not only that the defect may have been prejudicial but also that it probably was prejudicial, at least where as here the relief sought is extraordinary.
6. The fact that the House voted exclusion by a % vote is not irrelevant, even assuming the majority ground rule was improper for it at least generates a substantial doubt that a court declaration would provide Powell his seat — even assuming as I think we should, that the House would respect the court’s declaratory judgment. Compare Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). The House could immediately exclude on the same ground, by the same vote.
True, the House could do this, by hypothesis, only if the “ground rule” were that a % vote was necessary. But it does not appear that appellant Powell ever staked his position on the need for a % ground rule.
*6107. It is significant that appellant Powell, though duly re-elected in April 1967, has not availed himself of the legislative remedy available with this reelection to assert his claim to represent his district.
On the argument for stay Powell’s counsel indicated that at least one reason, and apparently a major reason, why appellant Powell did not invoke that legislative remedy is that it would not maintain his seniority and chairmanship. Perhaps so, but a court would be going to the extreme edge of its authority if it were to declare his status as a Congressman. It cannot reasonably be asked to provide such extraordinary relief to enable complainant to obtain perquisites, however important, that are essentially a matter for legislative determination, and certainly are not assured by any constitutional clause. A court has a duty, in the sound exercise of discretion, to consider litigation seeking relief that raises problems of confrontation with a coordinate branch with an approach that will, wherever possible, confine relief narrowly-
8. If Powell had acquiesced in the premise that there was authority to exclude, but only by a % vote and % ground rule, there would likely have been a very different kind of legislative situation. He could not consistently have stood on the position that the House and its Select Committee were acting beyond the proper sphere of authority by considering matters other than age, citizenship and residence. He may have been unwilling to wage battle even on a % ground rule after a hearing that admittedly was warranted in inquiring into various financial and salary arrangements. The premise of permissible exclusion would have undercut the position that permitted him to defer as a matter of principle any explanation of those arrangements.
9. The various objections lodged by appellant Powell to the procedure of the House Committee must all be viewed in the light of his then position that the Committee's scope was restricted to the three issues of age, citizenship and residence. It cannot be assumed that procedural differences would have loomed as large, or been unmanageable, if appellant Powell had accepted what I think was a valid premise of the House and its Committee. That premise — which I uphold by a ruling on the merits on this issue— is that the Constitution gives the House legislative “jurisdiction,” even prior to seating a member-designate, to make inquiry as to whether he has committed acts justifying punishment or expulsion of a member.
10. My approach may not hang tidily on the pegs of jurisprudence thus far called to my attention. It makes sense to me, however, and labels and concepts can emerge in due course.
What seems to have received most discussion in recent years is the concept of justiciability as a requirement in addition to subject-matter jurisdiction. As I read them the discussions of justicia-bility and non-justiciability have emerged primarily in terms of whether the issue is of a kind that lies within any province of any court at any time. I refrain from accepting absolutes about the case before us — to lay it down flatly either that no court may consider the issue and rule differently from the House, or that there may not be a state of facts that would properly call upon the District Court to grant declaratory and perhaps other relief. There are recent decisions indicating that when there is a determination of both subject-matter jurisdiction and justiciability for the issues, the courts are required to decide the issues and to vindicate the applicant’s constitutional rights — to refrain from sidestepping this duty merely because the framing of judicial relief presents large difficulties,4 and to take cognizance of a case seeking declaratory relief even where an injunction cannot properly be obtained.5 By strict logic the same approach should *611apply when there is a hypothesis of justi-ciability or at least a disinclination to enter a ruling of non-justiciability. Yet there have been instances when the courts have bypassed crucial jurisdictional issues and disposed of cases on the merits.6 I think the spirit of those eases also justifies the course I follow- — of deciding the merits on one key point and yet refraining, in the exercise of discretion, a full adjudication on the merits.
The key point, to me, is that Congressman Powell erred in his assumption that his satisfaction of the Constitutional requirements (of residence, citizenship and age) meant that he had to be seated, and' that grounds justifying expulsion could only be applied to those who had already been seated. My ruling on the merits of this Constitutional issue leads to the conclusion that the House had legislative jurisdiction to consider and appraise the activities and fitness of appellant Powell at the time he presented his credentials. It is not a full adjudication of the merits of the claim of appellant Powell that he was wronged. It does not necessarily mean either that the House acted properly when it failed to heed the ground rule of a % vote put forward by Congressman Curtis as the assumption of his motion to exclude, or that a court considering a different prayer for relief would be disabled from saying so upon a full consideration of Powell’s case on its merits.
The case before us presents problems of confrontation with a coordinate branch and of molding relief. These are considerations that lead a court in some instances to find non-justiciability of the issue for any court.7 They may also properly be invoked, I think, as backdrop and perspective for a ruling to decline to provide a full adjudication on the merits, even assuming justiciability. My reasoning is that the confrontations would likely have evolved in a quite different way if appellant Powell had recognized a power to exclude on grounds of misconduct (albeit on % vote) and had conducted himself on this premise from the start. Hence I do not think it mandatory for a court to consider and determine the constitutional issue as he has chosen to frame it, from an erroneous premise; and specifically, I think it proper to refrain from a full determination of the merits in a case where petitioner is seeking an extraordinary remedy yet has failed to invoke to the fullest extent the remedies and procedures available within the legislative branch.
. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962).
. Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), quoted in Dombrowski v. Eastland, 387 U.S. 82, 84, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), confirms the principle inherent in separation of powers that such action is not subject to judicial scrutiny or cognizance.
Compare the rule establishing immunity from suit of judges of courts of general jurisdiction, considered a fundamental requirement of an independent judiciary. Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 351, 20 L.Ed. 646 (1871), holds that such judges “are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” The Court also stated (pp. 351-352, 20 L.Ed. 646) : “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” In Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) the Court referred with approval *609to Bradley v. Fisher, and referred to the historic immunities of judges and legislators as “equally -well established.”
. See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616, 49 S.Ct. 452, 456, 73 L.Ed. 867 (1929) : “The temporary deprivation of equal representation which results from the refusal of the Senate to seat a member pending inquiry as to his election or qualifications is the necessary consequence of the exercise of a constitutional power, and no more deprives the state of its ‘equal suffrage’ in the constitutional sense than would a vote of the Senate vacating the seat of a sitting member or a vote of expulsion.”
. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
. See, e. g., Secretary of Agriculture v. Central Riog Ref. Co., 338 U.S. 604, 619-620, 70 S.Ct. 403, 94 L.Ed. 381 (1950) ; Ex parte Bakelite Corp., 279 U.S. 438, 448, 49 S.Ct. 411, 73 L.Ed. 789 (1929).
. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).