concurring:
Although I dissented in Hirschey II, believing that the EAJA did not apply to the present case, since the court held otherwise I have participated in this subsequent consideration of what the amount of the EAJA award should be. I join the court’s opinion with the exception of the dictum discussed below. I write separately principally to clarify several points in the current opinion related to my earlier dissent.
I agree that the petitioner can be compensated for the attorneys’ fees expended in litigating her right to attorneys’ fees, even though the “substantial justification” defense to the assessment of EAJA fees, see 28 U.S.C. § 2412(d)(1)(A) (1982), literally applies to the conduct of the fee litigation as well as to the conduct of the substantive suit, and even though in my view (as my earlier dissent suggests) FERC’s litigation of the fee issues was amply justified. The defense of substantial justification for the fee litigation was not asserted by the government, and as I understand the opinion, Maj. op. at 3 n. 15, we have declined to resolve the applicability of that defense here, just as we have declined to resolve it in other cases where the point was not argued, see Cinciarelli v. Reagan, 729 F.2d 801, 810 (D.C.Cir.1984); Martin v. Lauer, 740 F.2d 36, 44-45 n. 15 (D.C.Cir.1984). I further note that there was not argued, and we have not considered, the effect of the fact that in the present case the fees awarded for litigating fee issues substantially exceeded the value of the litigated fees themselves — or, to put it another way, the fees awarded for litigating fees substantially exceeded the fees awarded for litigating petitioner’s substantive grievance. The Supreme Court currently has before it the analogous question of whether there must be some proportionality between the fees awarded and the recovery in the underlying case. See City of Riverside *7v. Rivera, 763 F.2d 1580 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985).
While not contesting that Hirschey II is now the law of this circuit, I must nonetheless dissociate myself from the dictum of the court — which may be given effect in other circuits — that the legislative history of the 1985 EAJA amendments “ratifies the holding of the majority opinion in Hirschey II.” Maj. op. at 2 n. 9. Hirschey II and the three decisions of other circuits reaching the same result (two of which, like Hirschey II itself, were accompanied by dissents), present a conflict with the contrary holding of the Ninth Circuit in Tulalip Tribes v. FERC, 749 F.2d 1367, 1369 (9th Cir.1984), rather than the sort of uniform judicial interpretation that Congress, by unamended reenactment of the subject provision, may be deemed to have approved. See, e.g., Lorillard.v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 869-70, 55 L.Ed.2d 40 (1978). The entire case for the majority’s asserted “ratification” of Hirschey II rests upon the following statement in the House Committee Report:
The language of section 2412(d)(1)(A) expresses the view that prevailing parties shall be awarded attorney’s fees and, when available, costs as well. This interpretation ratifies the approach taken by four circuits. [Citing, inter alia, Hirschey II. ] ... Thus, the Committee rejects the interpretations of the statute by the 9th Circuit. See Tulalip Tribes____
H.R. Rep. No. 120, 99th Cong., 1st Sess. 17 (1985), 1985 U.S.Code Cong. & Ad.News 132, 145. It is most interesting that the House Committee rejected the interpretation of the Ninth Circuit, and perhaps that datum should be accorded the weight of an equivalently unreasoned law review article. But the authoritative, as opposed to the persuasive, weight of the Report depends entirely upon how reasonable it is to assume that that rejection was reflected in the law which Congress adopted. I frankly doubt that it is ever reasonable to assume that the details, as opposed to the broad outlines of purpose, set forth in a committee report come to the attention of, much less are approved by, the house which enacts the committee’s bill.1 And I think it time for courts to *8become concerned about the fact that routine deference to the detail of committee reports, and the predictable expansion in that detail which routine deference has produced, are converting a system of judicial construction into a system of committee-staff prescription. But the authority of the committee report in the present case is even more suspect than usual. Where a committee-generated report deals with the meaning of a committee-generated text, one can at least surmise that someone selected these statutory words to convey this intended meaning. The portion of the report at issue here, however, comments upon language drafted in an earlier Congress, and reenacted, unamended so far as is relevant to the present point, in the 1985 law. We are supposed to believe that the legislative action recommended by the Committee and adopted by the Congress, in order to resolve a difficult question of interpretation that had produced a conflict in the circuits and internal disagreement within three of the five courts that had considered it, was reenactment of the same language unchanged). Such a supposition is absurd on its face; and doubly absurd since the precise section was amended in 1985 on such a point of minute detail as changing an “and” to “or.” Pub.L. No. 99-80, § 2(a)(1), 99 Stat. 183, 184 (1985).
In sum, even if the 1985 EAJA amendments had been relevant to our determination in Hirschey II, I think the question should still have been resolved, as it was, not on the basis of what the committee report said, but on the basis of what we judged to be the most rational reconciliation of the relevant provisions of law Congress had adopted. I was disappointed that the court did not reconcile them as I would have, but I at least had the comfort, which implementation of the dictum here under discussion would deny me, of thinking that the court was wrong for the right reason.
. Several years ago, the following illuminating exchange occurred between members of the Senate, in the course of floor debate on a tax bill:
Mr. ARMSTRONG. ... My question, which may take [the chairman of the Committee on Finance] by surprise, is this: Is it the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of Congress from the committee report which accompanies this bill?
Mr. DOLE. I would certainly hope so____
Mr. ARMSTRONG. Mr. President, will the Senator tell me whether or not he wrote the committee report?
Mr. DOLE. Did I write the committee report? Mr. ARMSTRONG. Yes.
Mr. DOLE. No; the Senator from Kansas did not write the committee report.
Mr. ARMSTRONG. Did any Senator write the committee report?
Mr. DOLE. I have to check.
Mr. ARMSTRONG. Does the Senator know of any Senator who wrote the committee report?
Mr. DOLE. I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked____
Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read, the committee report in its entirety?
Mr. DOLE. I am working on it. It is not a bestseller, but I am working on it.
Mr. ARMSTRONG. Mr. President, did members of the Finance Committee vote on the committee report?
Mr. DOLE. No.
Mr. ARMSTRONG. Mr. President, the reason I raise the issue is not perhaps apparent on the surface, and let me just state it: ____ The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate.
... If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report.
... [F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is *8not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.
128 Cong.Rec. S8659 (daily ed. July 19, 1982).