dissenting:
I respectfully disagree with the views of the majority.
There is no factual dispute in this case. Jensen concedes that he has a prior history of alcohol abuse.1 The NTSB’s refusal to grant him a medical certificate rests implicitly on’ its interpretation of the disqualifying regulations as requiring mandatory denial of such a certificate once the fact of prior alcohol abuse has been established. An agency’s interpretation of its own regulations is a matter peculiarly within its discretion and, if challenged, is reviewable only under the arbitrary and capricious standard. But Jensen does not challenge the agency’s interpretation of the regulations; instead, he challenges their validity. Thus, the NTSB’s decision rests also on its determination that the regulations are valid. Because the NTSB has no jurisdiction to make such a determination, see Watson v. NTSB, 513 F.2d 1081, 1082 (9th Cir. 1975), however, I view that part of its decision as mere surplusage and review the issue de novo.2
42 U.S.C. § 4561(c)(1) applies by its terms to all “persons,” and to all federal licenses, including pilot certificates.3 It is not clear that an FAA medical certificate can be equated to a federal license. However, because a pilot certificate can be denied for failure to have a medical certificate, which, in turn, can be denied for prior alcohol abuse, I address the issue whether the FAA Administrator’s denial of a medical certificate for prior alcohol abuse violates the statute.4 I would hold that it does not.
Although it is the only reason articulated in the disqualifying regulations, prior alcohol abuse is not the “sole” reason for denial of a medical certificate pursuant to those regulations. Important considerations of public safety and the uncertainty of state-*801of-the-art medical knowledge also underlie the denial of medical certificates to those with a prior history of alcohol abuse.5 In fact, I find that it is these other considerations, rather than the fact of prior alcoholism per se, that constitute the primary reasons for disqualification.
This conclusion is supported by dicta in decisions of other circuits. In Coppenbarger v. FAA, 558 F.2d 836 (7th Cir. 1977), a panel of the Seventh Circuit stated that “[t]he Administrator could take the position that some illnesses are so disabling to a pilot that once an applicant manifests evidence of those illnesses public safety requires that he never be permitted to fly a commercial plane again.” Id. at 840. The same interpretation of the disqualifying regulations was, I believe, implied by the Eighth Circuit in Florey v. Air Line Pilots Association International, 575 F.2d 673 (8th Cir. 1978): “We reject [appellant’s] argument that alcoholism is an impermissible basis upon which to discriminate. Conversely, we agree with the conclusion of the FAA that alcoholism is incompatible with piloting commercial aircraft.” Id. at 676 n.3.6
42 U.S.C. § 4561(c)(2) provides for an exemption from the provisions of the Act for “positions” that are determined to be “sensitive.”7 See also Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (“bona fide occupational qualification” exemption of 42 U.S.C. § 2000e-2(d)). I believe that the considerations that underlie the disqualifying regulations would support a determination that the “position” of pilot of a commercial aircraft is “sensitive” within the meaning of subsection (c)(2). Therefore, I would hold that the disqualifying regulations are not inconsistent with the congressional policy embodied in the Act. Accordingly, I conclude that the decision of the Board that petitioner does not qualify for a medical certificate should be affirmed.
. Jensen has abandoned the claim, raised in his initial petition to the NTSB, that his prior use of alcohol does not amount to “abuse” as defined in 14 CFR §§ 67.15, 67.17 (1980).
. My review is not precluded by the apparent jurisdictional and statute of limitations bars of Watson, because Jensen’s challenge to the disqualifying regulations is brought in conjunction with a properly appealed adjudicative order based on the regulations. Greve v. CAB, 378 F.2d 651, 656 (9th Cir. 1967); see Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 915 16 (D.C.Cir.1973).
. I note that in making its determinations both in this case and in a prior decision, Petition of Moss, Order No. EA-664 (March 1975), the NTSB concluded that the disqualifying regulations were not affected by the Alcoholism Act because the Act was intended by Congress to be applicable solely to federal civilian employees. This conclusion involved a misapplication of the “plain meaning” rule of statutory construction.
The NTSB drew support for its conclusion from the titles to the relevant portions of the Alcoholism Act — 42 U.S.C. § 4561 is entitled “Programs for federal civilian employees,” and subsection (c) thereof is entitled “Prior alcohol abuse no bar to federal employment; exceptions.” It has been held, however, that “[ujnless there is some genuine confusion in the terms of an act, courts will not look to the [act’s] title.” United States v. Union Oil Co., 343 F.2d 29, 32 (9th Cir. 1965); see Strathearn Steamship Co. v. Dillon, 252 U.S. 348, 354, 40 S.Ct. 350, 351, 64 L.Ed. 607 (1920).
Here the language is clear without resort to the titles of the relevant provisions or any other extrinsic aids. I would interpret the titles as being descriptive of the general subject matter of the provisions, and not as restricting the plain meaning of the provisions. Furthermore, the legislative history suggests that Congress did intend to include all federal licenses and rights within the statute’s reach. See H.R.Rep. No. 1663, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 5719.
, This appears to be an issue of first impression. Florey v. Air Line Pilots Ass'n Int'l, 575 F.2d 673 (8th Cir. 1978), the only case to date to consider the Alcoholism Act, held only that the Act conferred no private right of action against a private party, id. at 676.
. The history of the regulations reveals that they are based on “the medical fact that [alcoholism cannot] be so precisely studied in the individual as to provide assurance that [it] will not interfere with the safe piloting of aircraft,” and on the conclusion that
the likelihood of occurrence of partially or totally incapacitating states directly attributable to [alcoholism] is so great, and the ability to provide acceptable medical assurance of non-occurrence of [alcoholism] in any given individual is so inadequate, that [alcoholism] existing in airmen constitute^] a definite hazard to safety in flight.
Doe v. FAA, 412 F.2d 674, 676 (8th Cir. 1969) (quoting recommendations of the Flight Safety Foundation).
. I attribute considerable significance to the fact that the Florey panel also considered the Alcoholism Act, albeit in a somewhat different context. See note 4 supra.
. This is in addition to an exemption for purposes of “national security.”