with whom
BAUER, Circuit Judge, joins, dissenting from decision not to hear the case en banc.Judge Bauer and I are concerned because a policy issue of importance, which generated a dissent within the panel and “arguably” creates a conflict with a previous decision of this court, is being decided under F.R.A.P. 34(a). That Rule is designed for frivolous cases; or those cases the issues of which have been recently authoritatively decided; or where the facts and legal arguments are adequately briefed and oral argument would not aid the decisional process. Not only was there no oral argument, but petitioner did not have the benefit, and indirectly this court, of counsel. Believing that our opinions, at least in cases of some significance, preferably should result from the effective functioning of the adversary system, we express no views on the merits of the issue.