concurring:
I concur with the opinion of Judge Gibbons to the extent that it concludes that the reference to the “position of the United States” in the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), includes the agency action which prompted the aggrieved party to challenge governmental action. I agree with the conclusion reached by Judge Gibbons that the position of the United States in this case was not substantially justified and that NRDC’s application for attorneys’ fees should be granted in full. However, I file this concurring opinion because I believe that the intent of Congress in enacting the EAJA was by no means as clear as has been suggested, and because I have reached my determination through a route somewhat different than that taken by Judge Gibbons.
The statute itself is silent as to the meaning of the word “position.” The legislative history does not address this issue directly, and examination of the legislative history provides no conclusive answer. Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 352 (D.D.C. 1982); Alspach v. Dist. Dir. of Internal Revenue, 527 F.Supp. 225, 228 (D.Md.1981) (“question is a close one”). It is apparent that the primary concern of Congress in enacting the EAJA was to provide an incentive for parties aggrieved by unreasonable governmental action to undertake litigation to vindicate their rights and those of the public, as well as to deter abusive and arbitrary agency action. The legislative history is replete with references to administrative abuses which Congress sought to limit through enactment of the attorneys’ fees provisions.
Section 202 of the EAJA, found at 5 U.S.C.A. § 504 note (Supp.1982), describes the purposes underlying the EAJA.
(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.
(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.
(c) It is the purpose of this title ... (1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney’s fees, expert witness fees, and other costs against the United States ...
According to H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 4984, the bill rests on the premise that certain parties “may be deterred from seeking review of ... unreasonable governmental action because of the expense involved in securing the vindication of their rights ... The purpose of the bill is to reduce the deterrents” through the attorneys’ fees provisions. This will help assure “that administrative decisions reflect informed deliberation.” Id. at 12, U.S.Code Cong. & Admin.News 1980, p. 4991.
The legislative history is not, however, susceptible of only one interpretation. As Judge Hunter points out, Congress made a number of references to the litigation position of the United States during its discussion of the substantial justification standard. “Where the government can show that its case had a reasonable basis both in law and fact, no award will be made.” Id. at 10, U.S.Code Cong. & Admin.News 1980, p. 4989. The House Report also noted that the EAJA would hold the United States “to the same standards in litigating as private parties.” Id. at 9, U.S.Code Cong. & Admin.News 1980, p. 4987. Similarly, the House Report indicates that the EAJA was “intended to caution agencies to carefully *715evaluate their cases and not to pursue those which are weak or tenuous.” Id. at 14, U.S.Code Cong. & Admin.News 1980, p. 4993.
At least one court has attempted to reconcile the apparently conflicting references by stating that the passages concerning the underlying agency action must be read in light of Congress’ concern with governmental action in administrative or judicial enforcement proceedings, where the action is the litigation posture. Alspach, supra, at 228-39. It would be equally logical to assume, however, that the references to the government’s litigation position should be read in light of that very same context, in which the proper focus is on the underlying governmental action.
Nowhere in the legislative history is there a clear statement of congressional intent. As this court noted in Goldhaber v. Foley, 698 F.2d 193, 196 (3d Cir.1983), courts have differed as to whether the government’s position should be assessed at the pre-complaint or post-complaint stage. The absence of a clear statement from Congress is, of course, not uncommon. In Broad Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1390-91 (Fed.Cir.1982), the court noted 28 U.S.C. § 2412(d)(3), in which Congress specifically dealt with the position of the United States in administrative proceedings. The court concluded that when Congress intended the court to consider the position of the United States before an agency, it knew precisely how to do so. Thus, the court found that the failure of Congress to include similar language in section 2412(d)(1)(A) was strong evidence that Congress did not intend the latter section to cover the agency position. Id. at 1391. This is not conclusive. Congress was not in that context concerned with the “position” of the United States in a civil action before the Court of Appeals. A review of the legislative history indicates that Congress never fully contemplated a situation such as that before this court in which the government’s litigation position consisted essentially of an apology for its administrative action forcing this litigation. For the following reasons, I conclude that the purposes underlying the EAJA would best be effected by examining both the government’s position at the administrative level which prompted a party to make the decision to litigate and the government’s position during the litigation. Under this standard, fees would be awarded to a prevailing party to the extent that the government’s action in causing a party to litigate and to continue to litigate was not substantially justified. Thus, unless and until the government’s position, starting at the agency level, is or becomes substantially justified, fees should be awarded to a prevailing party.
I agree with the position of Judge Gibbons that examination merely of the government’s litigation position would mean that no matter how improper the agency conduct that caused the suit to be filed or no matter how capriciously that position was maintained prior to suit, even after substantial sums have been expended to institute suit, the government can avoid payment of any fees merely by taking corrective action or by maintaining a different, although justifiable, litigation posture. This anomalous situation would contravene the overriding concern repeatedly expressed by the Congress to remove the specter of overwhelming litigation costs from a party’s determination of whether to contest unreasonable governmental conduct. See Goldhaber, supra, at 197. Congress considered an aggrieved party’s decision to resort to the adjudicatory process to be of paramount concern in enacting the EAJA. House Report, supra, at 9. The EAJA was designed to assure that the decision to contest governmental action is based on the merits of the case rather than on the cost of litigating. Id. at 12. This decision would greatly be affected in an adverse manner if, after substantial sums are expended in mounting an action, the government can avoid payment of fees by, as in this case, granting most of what the party sought.1
*716As Judge Gibbons notes, focus merely on the litigation position would effectively eviscerate Congress’ clear and expressed desire to have a party who has received a settlement on favorable terms to be considered a prevailing party and to recover fees. If we follow the course suggested by the EPA, the government may voluntarily give an aggrieved party 98% of what he seeks without settling the suit and avoid payment of any fees if it had substantial justification for defending the remaining two percent of its action.2
On the other hand, examination only of the administrative position underlying the suit would not advance the goals of Congress in enacting the EAJA. If by taking corrective action, the government ameliorates the improprieties of its conduct after suit is filed, there would be no valid reason to award attorneys’ fees against the government for defending a litigation position after that position has become substantially justified. If, in fact, the complaint in this action had become moot after EPA had taken its “corrective” action, an award of attorneys’ fees for plaintiff’s pursuit of this case would neither deter unreasonable agency conduct nor eliminate the obstacles to challenging such conduct.
Although not directly on point, this court’s decision in Goldhaber is instructive. In Goldhaber, this court was faced with deciding whether fees should be awarded when the position of the United States was substantially justified on one claim but not on another. The court held that the position of the United States referred to the government’s defense to each of the claims. 698 F.2d at 197. The court founded its holding upon the central purpose of the EAJA of eliminating any barriers to litigation challenging unreasonable governmental conduct presented by the fear of attorneys’ fees. Id.
The court found it incongruous to deny fees to a prevailing party who defeats one unreasonable government position simply because another position of the United States was substantially justified. The court stated:
If fees were denied to a prevailing party in such a circumstance, the purpose of the Act would be thwarted: the prevailing party who had succeeded in obtaining in substantial part all the relief sought in his complaint ... would be obliged to bear the entire burden of his attorneys’ fees. The purpose of the Act, however, is to charge to the United States the expenses incurred by a prevailing party who has challenged an unreasonable position taken by the United States. Consequently, any decision requiring that all litigation expenses be borne by the prevailing party, even if the United States has prevailed in one aspect of the action, would undermine a central purpose of the Act.
Id.
Conversely, the court noted that, it would be anomalous to charge the entire expense of litigation to the government in such a circumstance. Were we to do so, the government would bear the expense of defending even its reasonable positions. Because the Equal Access to Justice Act contemplates deterring only unreasonable government positions, this too would contravene the purposes of the Act. The only solution consonant with the legislative intent as we discern it, is to charge the United States with the ■portion of the expenses attributable to its unjustifiable positions.
Id. (emphasis added).
Similarly, an aggrieved party should be able to recover those fees necessary to challenge unreasonable governmental action, whether those fees are incurred in order to file a complaint or to continue the suit unless and until the government takes cor*717rective action to make its position substantially justified. If in Goldhaber the government had conceded during the litigation any defense of the claim concerning the non-justifiable governmental action the clear implication of the holding is that fees would, nevertheless, be awarded for the time spent in prosecuting that portion of the suit and would still be denied concerning the other claim. In the instant case, it is clear that the position of the agency at the time the suit was filed and for a time shortly afterward was not substantially justified. Clearly, fees should be awarded NRDC for this time. The determination then should be whether, after the “corrective” action was taken, fees should, nevertheless, be awarded.
The standard of awarding fees against the United States only for those fees incurred in challenging its unreasonable positions would serve to eliminate the specter of attorneys’ fees as an obstacle to challenging arbitrary governmental action while at the same time rewarding the government for taking corrective action.
With this standard in mind, I turn to the question of whether, after taking its allegedly “corrective steps” and claiming that the litigation was moot, the position of the United States was substantially justified. EPA’s primary defense during the litigation was that even if its action had violated the Administrative Procedure Act, no remedy was required because it had cured any procedural defect. The panel rejected that defense, concluding that EPA’s defense circumvented Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir.1979). EPA forced NRDC to brief and argue its case and the panel concluded that EPA’s position was lacking. The panel ordered reinstatement of all of the amendments as of March 30, 1981. I cannot conclude that EPA’s posture in this litigation had a reasonable basis in law and in fact. I do not find that its position was “novel but credible,” see House Report, supra, at 11, and I believe that Sharon provided sufficient guidance for the EPA. Accordingly, I agree with Judge Gibbons that EPA’s litigation position was not substantially justified. I would also award NRDC fees for time spent prior to the effective date of the EAJA and for its efforts in obtaining information through the Freedom of Information Act. Finally, the fee request was appropriately documented, and properly included a cost of living adjustment. For these reasons, I concur that NRDC’s application for attorney’s fees should be awarded in full.
. The EAJA’s definition of fees and expenses includes costs for expert witnesses, studies, analyses, engineering reports, tests or projects reasonably necessary for the preparation of the *716party’s case. In some instances, a party may undertake the bulk of these studies or reports before suit is filed.
. This concern is heightened in this case by the intervention on behalf of the EPA of a number of concerned parties which defended vigorously the agency action which led to this suit, and which position caused substantial expense to plaintiff.