concurring.
I agree with the results reached by the majority and write only to express my concern with indiscriminate application of the principle of judicial deference to an administrative interpretation of a statute or regulation. The majority ultimately concludes that because the Director failed to provide a reasonable explanation of the regulation the court owes no deference to his views. I agree with that outcome. My quarrel is with the concept underlying the starting point — that courts generally must defer to an agency’s interpretation unless it falls within some recognized exception.
That principle, so often perfunctorily invoked, has led to a gradual and subtle erosion of the courts’ status as a separate branch of government. The uncompromising statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), that it is “the province and duty of the judicial department to say what the law is,” has been watered down by casual and thoughtless deference to the views of an executive or independent administrative agency on a matter of law.
The court should conduct its deliberations guided by the proposition that all litigants are to be treated equally. When the subject matter is technical and genuinely within the expertise of an agency, obviously the court should give serious consideration to views coming from such a source. Many times, however, an agency’s view does not stem from an expertise superior to that of the court. Judicial deference in those situations unduly loads the scales in favor of the government and against the citizen-litigant. In that process the independence of the court’s judgment has been compromised.
This court explored some of the ramifications of deference, particularly to an agency’s statutory interpretation, in Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910 (3d Cir.1981). We discussed considerations that should be examined before giving an agency position greater weight than other litigants’ views, and concluded that “[bjlind acceptance of agency ‘expertise’ is not consistent with responsible” judicial review. Id. at 915.
My inquiry here would not start with the proposition that deference is due to the Director’s interpretation of the regulation, but with the question of whether the dispute lies in an area where agency expertise is of special value and apt to be objective. *1334Using that criteria, I would conclude that the court should give no special significance to the Director’s view but should decide the case on the court’s own reasoning.
The subject matter of the current dispute is the weight to be given certain evidence in light of regulatory and statutory provisions. This is a matter clearly within the competence of a court. Weighing the sufficiency of evidence of physical disability is an example of “the agency diet [which] is food for the courts on a regular basis.” Hi-Craft Clothing Co., 660 F.2d at 915. See also Pacemaker Yacht Co., Inc. v. NLRB, 663 F.2d 455, 458 (3d Cir.1981) (“courts owe no particular deference to the Board on matters of contract interpretation.”).
Nor is the Director a completely objective interpreter of the regulation. His role is multi-faceted — he must draft regulations, apply them to individuals, and as their opponent, defend his construction on appeal. The bias of his position must be placed on the scales, as would that of any other litigant.
Lewis Carroll’s Alice in Wonderland is a frequently cited source of authority on and about the judicial process, an association with tempting opportunities for digression that I shall resist here. But the Director’s position is similar to that of Alice’s friend:
“ ‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is/ said Alice, ‘whether you can make words mean so many different things.’
‘The question is/ said Humpty Dumpty, ‘which is to be master — that’s all.’ ”
L. Carroll, Alice’s Adventures In Wonderland (1865).
Having written the regulations, the Director is responsible for their text. If the meaning is not clear on a reasonably objective basis, then the regulations should be changed so that no ambiguity remains. As the majority says, “a claimant proceeding in good faith should not be subjected to a trap brought about by an interpretation of a regulation hidden in the bosom of an agency.” See Bethlehem Steel Corp. v. Occupational Safety and Health Review Comm’n, 573 F.2d 157 (3d Cir.1978).
Particularly with respect to a procedural regulation, as we have here, a claimant should be entitled to rely on a reasonably objective view of the text. See Kessler Institute for Rehabilitation v. NLRB, 669 F.2d 138 (3d Cir.1982). A search for that construction is not aided by “deference” to one side or the other.
Judicial review of agency action is designed to protect the citizen’s right to fair treatment in a dispute with the government, and the courts must be vigilant to assure that “deference” to an agency’s view does not frustrate that aim.