concurring specially:
I agree with the result reached by Judge MacKinnon, but not for the reasons stated in his opinion.
It is a cardinal rule of statutory construction that repeals by implication are not favored, but there are two well settled categories of implied repeals. TVA v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); Posadas v. Nat'l City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936).
First, if Congress provided an “affirmative showing of an intention to repeal” the earlier statute, and if its intention is “clear and manifest,” then the courts will recognize an implied repeal. TVA v. Hill, supra, 437 U.S. at 190, 98 S.Ct. at 2299; Posadas, supra, 296 U.S. at 503, 56 S.Ct. at 352. This criterion may be satisfied without explicit statutory language; otherwise the repeal would be express rather than implied. Moreover, in my view the courts may properly examine the reports of House and Senate committees as well as the conference report in deciding whether the requisite “affirmative showing” has been made. In this case, however, I find that the differing appropriations figures adopted by the House, Senate, and conference committees fail to point to an unequivocal legislative intent. Therefore, I cannot accept appellants’ contention that the rescission act passed in June 1981 implicitly repealed the ten percent set-aside provision in Section 786(c) of the Public Health Service Act, 42 U.S.C. § 295g-6 (1976).
The second category of implied repeals is where the provisions of the two statutes are in irreconcilable conflict. The later statute constitutes an implied repeal of the earlier one to the extent that they conflict. TVA v. Hill, supra, 437 U.S. at 192, 98 S.Ct. at 2300; Posadas, supra, 296 U.S. at 503, 56 S.Ct. at 352. In the present case, however, the rescission act can be construed to be consistent with the earlier ten percent set-aside provision.
Neither of the two alternative tests for repeals by implication has been satisfied in this case. The subsequent action of Congress supports this view. Apparently uncertain whether it had expressed a “clear and manifest” intent to repeal Section 786(c) in its June 1981 rescission legislation, on August 13, 1981 Congress explicitly adopted a statutory provision repealing Section 786(c) for the future. Omnibus Budget Reconciliation Act of 1981, Pub.L.No.97-35 § 2742(c), 95 Stat. 923 (1981).