dissenting:
The core of the constitutional issues presented in these consolidated cases is whether the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591-98 (1982 & Supp. Ill 1985) (Ethics Act or Act) violate the doctrine of separated government powers. There is an irony in the majority’s holding that the Act is constitutionally infirm, for the measure strives to maintain the structural design that is the genius of our Constitution — the system of mutual cheeks and balances; the Act’s sole purpose is to curb or avert abuses of executive branch power. Because I conclude that the Ethics Act neither impermissibly transfers an executive function to another branch nor orders an undue displacement of executive prerogatives, I would hold that the legislation withstands appellants’ separation of powers challenges.
Appellants advance two less encompassing constitutional claims: that the Act contravenes the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, and that it also violates the case or controversy requirement of Article III. These challenges are intertwined with the overarching separation of powers question; I find neither claim persuasive, whether considered separately or in conjunction with the larger challenge.
Finally, appellant Olson advances a statutory claim: that the Special Division incorrectly defined independent counsel’s jurisdiction to include possible conspiracy charges against Olson in the absence of a specific request to that effect by the Attorney General. For the reasons set forth in part IV., I conclude that Olson’s statutory claim is not ripe for this court’s review.
Accordingly, I would hold the Ethics Act constitutional and affirm the judgments of the district court.
I.
Appellants’ separation of powers contentions build from the characterization of prosecution as an executive function; they advance three variants of the charge that the Act encroaches on this executive domain. One group of arguments clusters around the concept of aggrandizing one branch at the expense of another. A second avenue of challenge focuses on limitation; displacement of the constitutionally-assigned functions of one branch may undermine the structure of separated and balanced powers even absent an impermissible transfer or sharing of functions. Finally, appellants argue that the Act places impermissible constraints on the President’s power to remove independent counsel. For the reasons stated below, none of these separation of powers challenges should succeed.
A.
Appellants allege that the Act grants both the legislative and judicial branches impermissible roles in the conduct of prosecutions. They assert that the Act allows Congress to exert undue influence on law enforcement decisionmaking. Appellants also argue that the Act effectively transfers supervision of the prosecutorial function to the Special Division. Neither contention withstands scrutiny.
In Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), the Supreme Court set forth the separation of powers analysis applicable to the question whether one branch has intruded impermis-sibly on the domain of another. The Court held that it is a violation of the “doctrine of separation of powers,” id., 106 S.Ct. at 3184, for Congress to charge the Comptroller General with the performance of executive functions, and at the same time to retain for itself the power to remove him. *519The Court reasoned that the constitutional precept of divided and separated powers “does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.” Id. at 3187. Thus the Bowsher analysis proceeds in two steps. One first must characterize a given activity as legislative, executive, or judicial in nature. The inquiry then progresses to the question whether a different branch exercises supervision of, or control over, the identified function. Bowsher suggests that any such transfer of authority would be a violation of the separation principle.
The first step of the Bowsher analysis is unproblematic in this case. No participant in the litigation questions that prosecution is properly typed an executive branch function.1 See, e.g., United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C.Cir.1986); United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). The second Bowsher question, whether the Act cedes control over prosecution to Congress or to the judiciary, requires more extended consideration.
Section 595(e) allows members of the Committee on the Judiciary of either House of Congress to request that the Attorney General apply for the appointment of an independent counsel.2 The same section requires the Attorney General to respond to such a request, either by notifying the committee that he has made the requested application, or by stating why he decided not to apply. Appellants argue that this provision results in improper congressional influence on the process of prosecutorial decisionmaking. The objection is insubstantial.
Section 595(e) contains no language suggestive of an intent to give Congress the power to compel the Attorney General to apply for appointment of an independent counsel. The sole apparent purpose of the provision is accountability.3 The Attorney General has discretion to decide whether to seek appointment of an independent counsel; if the decision is in the negative, he is not required to explain that decision in any detail.4 This limited duty to give a reason *520for his decision is no more intrusive of executive branch prerogatives than the investigation challenged and upheld in McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927). There the Supreme Court, though not addressing the separation of powers question directly, upheld a Senate select committee’s subpoena directing the brother of a former Attorney General to testify before it. The subject of the committee investigation was
the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers — specific instances of alleged neglect being recited.
Id. at 177, 47 S.Ct. at 46. It must be inferred that in the Court’s view prosecuto-rial decisions were not to be kept in splendid isolation from congressional oversight.
Turning from legislative oversight to third branch participation, appellants contend that the several duties assigned to the Special Division under the Act render it, in effect, independent counsel’s supervisor. In fact, the court’s role is more administrative than supervisory.5
The Special Division cannot initiate an investigation or prosecution. § 593(b). Upon application of the Attorney General it performs two functions in the appointment process: the court selects an individual to fill the position of independent counsel; and it defines that individual’s jurisdiction, guided by the terms of the Attorney General’s application. Id.
The Special Division has no supervisory role during independent counsel’s tenure.6 Should the Attorney General elect to remove an independent counsel pursuant to § 596(a)(1), the Special Division was formerly the forum in which independent counsel might seek review, § 596(a)(3),7 and the Division retains authority to fill vacancies on the resignation, death, or removal of an independent counsel. § 593(e).
Upon completion of an investigation and/or prosecution, independent counsel must file a comprehensive report with the court. § 595(b)(1), (2). The Special Division also has the power to terminate an office of independent counsel on its own motion or at the suggestion of the Attorney General, on a finding that the assigned investigation is complete or substantially complete. § 596(b)(2). Each of the areas in which the Special Division exercises some degree of discretion presents an avenue of challenge for appellants.
The court’s responsibility for selection of an individual to fill the independent counsel role does not, by itself, constitute an intrusion into the prosecutorial function. Courts frequently choose individuals to fill *521vacancies in the corps of U.S. Attorneys, pursuant to 28 U.S.C. § 546.8 Such appointments have been upheld against constitutional challenge. United States v. Solomon, 216 F.Supp. 835 (S.D.N.Y.1963). Under § 546, of course, the executive branch is free to replace the interim U.S. Attorney at any time. Id. at 842-43. Under the Ethics Act the court’s choice is final, but it is a choice made only upon the request of the executive branch, and no court may review the Attorney General’s decision not to request appointment of an independent counsel. See supra note 4.
The Act does not on its face require that the court’s definition of independent counsel’s jurisdiction track the Attorney General’s application.9 It cannot, however, be read to grant the Special Division unfettered discretion in this regard. Such a reading would be inconsistent with the preconditions of the court’s jurisdiction-defining role: that the Attorney General conduct a preliminary investigation, § 592(a)(1), and that he provide “sufficient information to assist the division ... to define [an] independent counsel’s prosecu-torial jurisdiction.” § 592(d)(1). It was expected that the Attorney General would provide relatively specific information:
The prosecutorial jurisdiction can only be properly defined if the Attorney General provides complete and detailed information to the court about the true nature of the allegations of criminal wrongdoing, any related criminal investigation which are [sic] presently being conducted by the Department, and any information or leads collected as a result of the preliminary investigation which would indicate the potential that further investigation will involve additional related matters.
S.Rep. No. 170, 95th Cong., 1st Sess. 56 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 4216, 4272. Congress gave the Special Division no anchor for its jurisdictional delineations other than the Attorney General’s findings and recommendations; one cannot reasonably ascribe to the legislature a will to allow the Special Division to stride past the markers of the only investigation it has at hand. Since courts must interpret statutes in such a way as to give effect to all of their provisions, see Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973),10 the Act must be read to require the court’s jurisdictional specification to be substantially as requested by the Attorney General.11 The essential decision whether to proceed in a given direction toward potential prosecution, then, rests with the Attorney General, not the Special Division.
The termination provisions likewise present no problem of impermissible intrusion. The report submitted under § 595(b), upon independent counsel’s termination of an investigation, generates no supervisory response from the court.12 To the extent *522that any reporting requirement might create a degree of subservience on the part of the reporting officer, that effect is minimized here by the prior definition of independent counsel’s jurisdiction. Any prose-cutorial activity within the jurisdictional confines ultimately traceable to the Attorney General is insulated from the Division’s scrutiny. Any decision by the Division to terminate an office of independent counsel, whether on its own motion or at the suggestion of the Attorney General, is similarly constrained by the jurisdictional grant.13
Time and statutory clarification have overtaken a further argument appellants put forward. They read former § 596(a)(3) as establishing a “judicial veto” over the Attorney General’s decision to remove an independent counsel for cause because the section said the Special Division could order relief if the removal “was based on error of law or fact.” See Brief of Appellants, Nos. 87-5261, 87-5265 (Appellants’ Br. II) at 38-39.14 This appellants took to mean that the Special Division was empowered to engage in de novo review, thus construing the congressional product to provoke, not avoid, a constitutional controversy. Cf. supra p. 521 note 10. But Congress has clarified that it never intended application of any extraordinary or intense judicial review standard:
the sentence which establishes the [“error of law or fact”] standard for courts to apply in reviewing the removal of an independent counsel from office. This standard was included when the statute was originally enacted as a reflection of existing law regarding officials subject to removal only for good cause. However, the conferees want to avoid any possibility that it would be viewed as having established a different standard. The intent of the statute as originally enacted, and as reauthorized, is that the courts should apply the standards established by existing case law on the removal of such officials.
Independent Counsel Reauthorization Act of 1987, H.R.ConrRep. No. 452, 100th Cong., 1st Sess. 37 (1987).15
*523To summarize, taken as a whole, the Special Division’s role is more administrative than supervisory. The Division’s discretion is constrained at every juncture by the original grant of jurisdiction, itself defined in response to the Attorney General’s application for independent counsel. The Division holds no control rein over the exercise of the independent counsel’s prosecuto-rial discretion. Thus, there is no transfer of the prosecutorial function to the judicial branch of government.16
This is not to deny that the Act imposes limits on the executive. It calls upon the Attorney General to apply for independent counsel if his preliminary investigation, § 592(a)(1), of a possible violation of federal criminal law by a covered individual reveals “reasonable grounds to believe that further investigation or prosecution is warranted.” § 592(c)(1). Matters turned over to independent counsel pursuant to the Act17 might well be handled by the Department of Justice in the absence of the Act; to that extent offices of independent counsel represent a displacement of the executive’s prosecutorial role. But the executive functions are performed by an officer independent of the other two branches as well as the executive; the appropriate separation of powers analysis, therefore, is indicated not in Bowsher, but in Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).18
*524B.
Appellants charge that, even absent a transfer of functions, independent counsel’s independent exercise of prosecutorial responsibilities itself constitutes an unconstitutional inroad into executive branch territory. Such an incursion, they argue, impairs the executive’s ability to fulfill the obligation to “take Care that the Laws be faithfully executed,” which in turn threatens the constitutionally-created balance among the three branches of the federal government.19
In Commodity Futures Trading Comm’n v. Schor, supra, announced the same day as Bowsher, the Supreme Court articulated a separation of powers analysis applicable where there is encroachment on — or siphoning off from — one branch but no transfer of function to another. The Schor approach, I believe, cannot be written off as good for one day and case alone. In Schor the Court considered a statutory scheme which allowed the Commodity Futures Trading Commission (CFTC) to adjudicate garden variety state common law counterclaims interposed in reparation proceedings. That arrangement, the Court held, did not impermissibly diminish the domain of Article III courts. In so ruling, the Court distinguished the Bowsher analysis:
Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch. Instead, the separation of powers question presented in this case is whether Congress impermissibly undermined, without appreciable expansion of its own power, the role of the Judicial Branch.
106 S.Ct. at 3261.
The Court’s discrete separation of powers analyses in Bowsher and Schor should guide our way in this case. Where one branch appropriates the functions of another the separation of powers issue arises most pointedly. In these cases a straightforward, “formalistic” analysis is indeed the order of the day. See also Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). But a measure such as the one before us presents a more subtle problem. The danger of creating an imbalance among the three branches by taking some business away from one of them is in all cases a vital concern, but the actual effects of each apparent limitation should be examined with care. A more fluid, functional approach is appropriate if we are to preserve the full range of structural values encompassed under the heading of separation of powers.
Schor’s separation of powers analysis turns on the nature and extent of the intrusion, or siphoning off, and the purpose it is designed to serve:
*525Among the factors upon which we have focused are the extent to which the “essential attributes of judicial power” are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.
106 S.Ct. at 3258. In the context of removing certain matters from the executive, rather than judicial, branch,20 Schor’s approach counsels a consideration of three factors: the extent of the removal, whether the limitation affects a core executive function, and the purposes of the legislation.
The Ethics Act effects only a limited incursion into executive territory. The Attorney General makes two important decisions at the outset: whether there is sufficient information to conduct a preliminary investigation and, after undertaking such an investigation, whether there are reasonable grounds to believe further investigation or prosecution warranted. § 592(a), (b), (c). These decisions are not subject to judicial review. See supra note 4. The Attorney General alone has the power to remove an independent counsel, albeit he must have cause to do so. § 596(a)(1).21 Most significantly, the Attorney General’s application for independent counsel sets boundaries for the assignment given to independent counsel. In short, the Attorney General exercises very significant authority at the crucial junctures in the process of establishing an office of independent counsel.
In this regard the present case is more like Schor than Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), in which a large delegation of judicial powers to bankruptcy judges was held to violate Article III and the separation of powers principle. Id. at 58, 102 S.Ct. at 2864. Under the scheme challenged in Northern Pipeline, the bankruptcy courts were given jurisdiction over “all civil proceedings arising under title 11 [the bankruptcy title] or arising in or related to cases under title 11.” 28 U.S.C. § 1471(b) (Supp. IV 1980). The grant of power also included the ability
to hold jury trials, [28 U.S.C.] § 1480; to issue declaratory judgments, § 2201; to issue writs of habeas corpus under certain circumstances, § 2256; to issue all writs necessary in aid of the bankruptcy court’s expanded jurisdiction, § 451 (1976 *526ed. and Supp. IV); see 28 U.S.C. § 1651; and to issue any order, process or judgment that is necessary or appropriate to carry out the provisions of Title 11, 11 U.S.C. § 105(a) (1976 ed., Supp. IV).
458 U.S. at 55, 102 S.Ct. at 2863. Bankruptcy courts thus were given the full authority of Article III courts with respect to any proceeding “related to” a Title 11 claim.
The scheme validated in Schor, on the other hand, vested less encompassing authority in the Commission to hear claims that would otherwise be heard in the first instance in court, and the powers of the Commission are more limited than were those of the bankruptcy courts. “[T]he CFTC, unlike the bankruptcy courts under the 1978 Act, does not exercise ‘all ordinary powers of district courts,’ and thus may not, for instance, preside over jury trials or issue writs of habeas corpus.” Schor, 106 S.Ct. at 3259.
Under the Ethics Act the independent counsel’s assignment is channeled: she is able to pursue only matters falling within the jurisdictional grant; she may not take on, in addition, new matters merely because they are “related to” the assignment she has been given. See In re Olson, 818 F.2d 34 (D.C.Cir.Indep.Couns.Div.1987). In this respect, her office cannot be compared with the sprawling commission of the bankruptcy courts examined in Northern Pipeline. On the other hand, independent counsel does enjoy, for the particular matter she has been empowered to investigate, virtually “the full authority of the Attorney General.” Appellants’ Br. II at 14-17. Balancing the two factors — a circumscribed mission, but a full arsenal to accomplish that mission — and taking into account the Attorney General’s role in applying, or choosing not to apply, for appointment of independent counsel, I conclude that the Ethics Act effects no intolerably sweeping displacement of executive branch authority.22
Appellants contend that the Act tampers with a “core” executive function — prosecution.23 Though it is indisputably an executive task, see United States v. Nixon, 418 U.S. at 693, 94 S.Ct. at 3100, it is not obvious that prosecution is at the “core” of the executive branch’s constitutionally-assigned functions, in the sense that the job must be kept, in any and all cases, under the President’s wing and cover.
Core executive functions are described in Article II; they include, notably, the President’s role as Commander in Chief of the Armed Forces, and his power to make treaties and to grant pardons. See U.S. Const. art. II, § 2. While the executive’s powers, unlike those of the legislature, are not limited to those enumerated in the Constitution’s text, see Myers v. United States, 272 U.S. 52, 118, 47 S.Ct. 21, 26, 71 L.Ed.2d 160 (1926) (“The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed----”), it seems fair to assume that the powers specifically mentioned were of central concern to the framers. Prosecution was decentralized during the federalist pe*527riod, see L. White, The Federalists: A Study in Administrative History 408 (1948), and it was conducted by district attorneys who were private practitioners employed by the United States on a fee-for-services basis. Id. at 406-08. I cannot conclude that the framers, or the Congress that enacted the Judiciary Act of 1789, would have considered prosecution a function that must remain, sans exception, with the President and his men.24
Though in pertinent respects analogous to the measure challenged in Schor, the Ethics in Government Act serves a significantly different legislative goal. The purpose of the Commodity Exchange Act relevant in the Schor case was to “create an inexpensive and expeditious alternative forum,” 106 S.Ct. at 3260, an objective Congress embraced without adverting to structural considerations. Thus the Court was obliged to evaluate the extent of the conflict between the congressional objective— making available for adjudication of a common law counterclaim a forum more convenient, cheaper, and swifter than an Article III court — and separation of powers principles. In contrast, the Ethics Act is intended to implement those principles.
The framers constructed a government of separated powers with the purpose of “diffusing] power the better to secure liberty.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 77 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). “The accumulation of all powers legislative, executive and judiciary in the same hands [is] the very definition of tyranny.” The Federalist No. 47, at 324 (J. Madison) (J. Cooke ed. 1961). The chosen structure, however, was decidedly not one of absolute separation. See United States v. Nixon, 418 U.S. at 707, 94 S.Ct. 3107; Nixon v. Administrator of GSA, 433 U.S. 425, 442-43, 97 S.Ct. 2777, 2789-90, 53 L.Ed.2d 867 (1977); see also supra note 18. The allocation of legislative, executive, and judicial functions among the three branches was accompanied by a system of checks and balances, so that no branch could use isolation as an instrument of domination. Implementation of the principle of separated powers must look to both features of the constitutional scheme.25
The Ethics Act is designed to function as a control against abuse of executive branch power. It implements the checking aspect of the separated powers. The independent counsel provisions of the Act were developed in response to the Watergate era abuses of executive branch powers, abuses which themselves threatened the balance among the three branches of government. The Act is rooted in the principle that “no man can be a prosecutor or judge in his own case.” S.Rep. No. 170, 95th Cong., 1st Sess. 5 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 4216, 4221.26 It is similarly unreasonable to expect an individual to investigate or prosecute his superiors:
The pressures, the tensions of divided loyalty are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential.
Removing Politics from the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the Senate Comm, on the Judiciary, 93d Cong., 2d Sess. 200 (1974) (testimony of Archibald Cox, Watergate Special Prosecutor). The Act thus operates as a means of maintaining the executive’s proper — and properly circumscribed — constitutional role.27 The Act’s purpose must be *528given the maximum possible positive weight.28
The Schor Court validated an encroachment on judicial branch authority. It characterized the incursion as “limited,” 106 S.Ct. at 3260, albeit trenching on a core function — the adjudication in the first and only trial instance of traditional state common law contract claims. “The counterclaim asserted in this case is a ‘private’ right for which state law provides the rule of decision. It is therefore a claim of the kind assumed to be at the ‘core’ of matters normally reserved to Article III courts.” Id. at 3259. The Court found the incursion justified by virtue of “the congressional purpose behind the jurisdictional delegation” — creating “an inexpensive and expeditious alternative forum” — and “the demonstrated need for the delegation.” Id. at 3260. Here we have an incursion on the executive domain which, if it is qualitatively more substantial, is also more blended and connected with the department affected, witness the large initiating and removal role of the Attorney General. See supra pp. 520-23. Furthermore, it is not as clearly a disturbance of a “core” function, see supra pp. 526-27; and it is intended to serve not merely “legislative convenience,” see Schor, 106 S.Ct. at 3264 (Brennan, J., dissenting), but to vindicate the precise structural principle against which it must be measured. I conclude that the Ethics Act generates no unconstitutional displacement of an executive function.
C.
Section 596(a)(1) permits removal of independent counsel “only by the personal action of the Attorney General,” and only for “good cause” or a physical, mental, or other condition that “substantially impairs the performance” of her duties.29 Appellants contend that restrictions on the President’s 30 power of removal encroach on the exclusively executive domain of prosecuto-rial discretion. The executive’s ability to fulfill the constitutional command faithfully to execute the laws, they argue, requires unrestricted authority to remove officers charged with executive duties.
The Supreme Court has provided some guidance on the question of congressionally-imposed limits on the removal of executive officers. In Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), the Court held unconstitutional a statute which required Senate advice and consent to the President’s removal of a postmaster first class, reasoning that “the power of removal of executive officers by the President alone was essential in the division of powers between the executive and the legislative branch.” Id. at 167, 47 S.Ct. at 42. Myers’ sweeping language *529was narrowed by Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1161 (1935), which upheld a statutory limitation on the President’s power to remove Federal Trade Commissioners.31 The Court found no separation of powers violation because, it said, the commissioners perform “quasi-legislative or quasi-judicial” duties, and “must be free from executive control.” Id. at 628, 55 S.Ct. at 874.
The Court focused on the latter factor in Weiner v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958). It held that War Claims Commissioners, who were appointed for fixed terms, were not subject to removal at the President’s pleasure, even though Congress had been silent on the question of removal. The Court read the crucial distinction to be that between officers “who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference,” id. at 353, 78 S.Ct. at 1278; removal powers as to the latter could be restricted. Finally, the Court recently invalidated a statute granting Congress an active role in the removal of the Comptroller General, an officer found to be performing executive functions. Bowsher v. Synar, supra.
The holdings of these four cases point to one crucial distinction, between congressional participation in the removal process and congressionally-imposed limits on a power of removal which remains in the executive branch.32 Congressional participation in removal, not an issue in this case, uniformly has been disapproved. Myers, supra; Bowsher, supra. The more difficult question concerns how to define the class of officers whose removal may be subject to restrictions.33 Humphrey’s Executor and Weiner may be read two ways. Appellants contend that neither case involved officers performing “purely executive” functions; such officers must serve at the President’s will. Appellee counters that it was the need for freedom from executive interference that was decisive in those two cases.
Appellants’ reading — that Congress never may restrict the executive’s power to remove “purely executive” officers — places too much weight on the characterization of an officer’s function. Like the Comptroller General, FTC Commissioners are charged with responsibility for interpreting and applying acts of Congress, yet implementation of legislative policy was characterized as “quasi-legislative” in Humphrey’s Executor, 295 U.S. at 628, 55 S.Ct. at 874, “executive” in Bowsher, 106 S.Ct. at 3192. The constitutionality of statutory restrictions on the removal power cannot depend on such a problematic question of characterization.34
*530Humphrey’s Executor and Weiner, therefore, should be read as appellee proposes: the cases validate restrictions on the removal of certain executive officers whose functions require freedom from executive branch supervision. Since Congress’ power to create independent offices performing executive tasks is itself subject to separation of powers review and analysis, see supra I.B., the “freedom from interference” test also incorporates that review and analysis. A congressional determination that a given task requires independence cannot by itself be sufficient to confer constitutional validity; that approach would cede the separation of powers question to Congress. The “freedom from interference” test must be understood to mean that when Congress has created an office otherwise consistent with separation of powers principles, and which requires independence from “Executive establishment” control — both judicially reviewable matters — Congress may implement the latter purpose by imposing restrictions on the executive’s power to remove an individual occupying that office.
There can be no doubt that limiting the President’s power to remove independent counsel is essential to the instant legislative scheme. An unrestricted removal power would create a “here and now subservience” that would thwart the goal of independence. Thus the removal restrictions of § 596(a)(1) are permissible under Humphrey’s Executor and Weiner, given that the independence of independent counsel— the mandate to conduct investigations and prosecutions without day-to-day executive branch supervision — itself satisfies the requirements of the separation of powers doctrine. It therefore follows from the result reached in I.B., supra, that the removal provision should withstand judicial scrutiny as well.
II.
Appellants advance two challenges to the Act under the Appointments Clause, U.S. Const, art. II, § 2, cl. 2.35 Because independent counsel is not an “inferior Officer,” they argue, the constitutional requirement is that she be appointed by the President with the advice and consent of the Senate. Appellants also contend, in the alternative, that even if independent counsel is an inferior officer in the constitutional sense, her appointment may not be vested in a court.
Appellants argue that the class of officers who must be appointed by the President, on advice and consent of the Senate, cannot be limited to those specifically mentioned in Article II, § 2. They maintain that officers who exercise significant authority and discretion, Appellants’ Br. II at 21, fit within that category. Appellants concede, however, that neither the Appointments Clause itself nor contemporaneous commentary speaks plainly to the classification question. “In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the Constitution, whose appointment does not necessarily require the concurrence of the Senate.” 2 J. Story, Commentaries on the Constitution § 1536 (5th ed. 1891).36 Appellants thus urge this *531court to make a substantive determination: whether independent counsel enjoys sufficient responsibility and independence to be held an officer whose appointment must be made in the manner of an ambassador, or a Supreme Court Justice.
The majority has responded to appellants’ plea and has reached out to supply a definition of an inferior officer: one who is subordinate to a principal officer. Maj. Op. at 484. The majority does not, however, identify the authority for this interpretation. That is not surprising. The only recorded exchange over the prescription “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” is this:
Mr. Madison. It does not go far enough if it be necessary at all — Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.
Mr. Govr Morris There is no necessity. Blank commissions can be sent—
2 Records of the Federal Convention of 1787, at 627 (September 15) (M. Farrand ed. 1911). Madison thus suggested that the clause on which this case first turns for my colleagues was of no great moment in the framers’ debate, and indeed is not self-defining. Significantly, Madison called “Superior” an officer my colleagues would no doubt dub “inferior” — someone below a department head and thus subordinate.
What can one make of the various appellations to which the framers made reference — “inferior,” “Superior,” “lesser,” “principal”? Only this, I believe. One cannot place too much stock in “original intent” as it applies to the appointment of nonjudicial officers other than those specifically enumerated in the Appointments Clause. And surely one cannot rest one’s decision in this grand constitutional controversy on contemporary definitions of modifying terms the founding fathers failed to pin down.
Appellee points out that this court recently validated the Attorney General’s appointment, within the Department of Justice, of an independent counsel charged with exactly the duties and responsibilities enjoyed by independent counsel under the Act. In re Sealed Case, 829 F.2d 50 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988). Independent counsel therefore must be an inferior officer, she argues, because the Attorney General may not constitutionally appoint any other kind of officer. The majority counters that the Attorney General’s power to rescind the regulation pursuant to which a Justice Department “independent” counsel is appointed renders such officers subordinate and hence inferior. Maj. Op. at 484-85. The majority’s response begs the question. Were the nature and scope of an officer’s duties — rather than the majority’s “subordinate” construct — the determining factor, independent counsel would have to be counted an inferior officer, for the reason appellee advances.
Appellee also emphasizes Ex Parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), in which the Supreme Court upheld a statute assigning courts the responsibility for appointing certain election commissioners, who therefore must be inferior officers. These commissioners had no superiors. The ground on which the majority distinguishes Siebold is not entirely clear. The opinion first suggests that the election commissioners’ responsibilities were more limited than those of independent counsel, Maj. Op. at. 485, but goes on to hint that it is in some way significant that the commissioners, unlike independent counsel, “were not clearly within any of the three branches.” Id. at 486.
In short, the majority cannot sustain its own argument that subordinacy alone determines whether an officer is inferior or *532non-inferior in the constitutional sense.37 The status of independent counsel — clearly not equivalent to a department head in the nature and scope of her duties, but also not subject to day-to-day supervision by a hierarchic superior — defies facile classification.38 Because the founding fathers did not settle the question, I regard the matter as one on which Congress’ judgment is owed a large measure of respect — deference of the kind courts accord to myriad constitutional judgments Congress makes, for example, most judgments about what classifications are compatible with the command that all persons shall enjoy “the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
Congress has the authority to create both categories of offices — those the President must fill with the Senate’s concurrence and “inferior” ones. Thus the present question is not one of pure or abstract categorization; rather, it concerns the legitimacy of a classification made by Congress pursuant to its constitutionally-assigned role in vesting appointment authority. That constitutional assignment to Congress counsels judicial deference. The chosen mode of appointment here indicates that Congress meant to create an inferior office. That intention alone is not disposi-tive of the constitutional issue, for it is common ground that Congress does not have the “final say.” See Maj. Op. at 487 n. 20. But judicial review must fit the occasion. Where, as in the matter at hand, the label that better fits an officer is fairly debatable, the fully rational congressional determination surely merits more tolerance than my colleagues accord it. The arguments advanced by appellants and by the majority, that independent counsel ought to be considered an officer similar in stature to heads of departments, in sum, are insufficiently compelling to justify upsetting Congress’ considered judgment on the matter. I conclude that independent counsel is an inferior officer within the meaning of the Appointments Clause.
Appellants contend that even if independent counsel is an inferior officer, she cannot constitutionally be appointed by a court. The exceptions clause, all participants in this case agree, admits of more than one interpretation. Appellants argue that the clause must be read to permit the vesting of the power to appoint inferior officers only within the branch, or the department, in which they are to serve. Ap-pellee argues that there is no express constitutional limitation; Congress may vest the appointment of any inferior officer in the President, the courts, or department heads.
In Ex Parte Siebold, supra, the Supreme Court adopted an interpretation of the exceptions clause similar to that advanced by *533independent counsel.39 The Court said, “[b]ut as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress.” Id., 100 U.S. at 397-98. The Court also suggested, however, that inter-branch appointments might be subject to an implied requirement of “congruity”: “[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.” Id., 100 U.S. at 398.
An inter-branch appointment would indeed fail the test of congruity if it violated the separation of powers doctrine. The majority argues that assigning to one branch the appointment of an officer whose duties are central to the role of a different branch would violate the separation of powers and thus would be incongruous. Maj. Op. at 494.40 I am in accord with my colleagues as to the principle, but do not agree with their application of it in this concrete case. Vesting the appointment of independent counsel in the Special Division is not incongruous because, as set forth at I.A. and I.B., supra, the Ethics Act neither unduly displaces executive branch prerogatives, nor transfers supervision of the pros-ecutorial function to the judiciary.41
Appointment of independent counsel by a court meets the test of statutory congruity as well. It would be incongruous in the extreme, given the purposes of the Act, to vest appointment of independent counsel in the President, and the same would be true of heads of departments, themselves serving at the President’s pleasure. The Ethics Act was designed in part to serve as an assurance that high executive officials would not receive especially favorable *534treatment under the law.42 That purpose would be undercut by a strictly intra-branch appointment process. The appearance and reality of impartiality are well served by locating the appointment of independent counsel in the least political, least partisan branch of government. I conclude that the Appointments Clause permits vesting the appointment of independent counsel, an inferior officer in the constitutional sense, in a “court of law.”43
III.
The Ethics in Government Act violates Article III of the Constitution, appellants contend, by assigning courts responsibilities not encompassed within the “case or controversy” requirement of Article III, § 2. This argument is, in a sense, the obverse of that considered in I.A., supra. Any transfer of functions from one branch to another creates two potential violations: the diminution of the duties assigned one branch, and the allocation of inappropriate responsibilities to the other.44 Although it was established in I.A., supra, that there is no impermissible transfer of prosecutorial decisionmaking to the Special Division under the Act, a further Article III claim remains. Appellants maintain that any assignment of nonjudicial tasks violates Article III; it was acknowledged in I.A. that the Special Division performs some administrative tasks under the Act, short of a supervisory role.
Appellee argues, in my view correctly, that the Appointments Clause authorizes the selection of independent counsel by a court. See supra pp. 532-34. Article III cannot be read to exclude the possibility of lodging in a court any appointment responsibility outside the third branch, for that would render the Appointments Clause prescription superfluous. Appellee further asserts that the power to define independent counsel’s jurisdiction is incidental to the appointment power, and so is similarly authorized by Article II, § 2, cl. 2.
Appellants maintain that the power to define independent counsel’s jurisdiction “compels the Division to make substantive law enforcement decisions.” Appellant’s Br. I at 40. In fact, the Special Division merely assigns independent counsel an area of responsibility, closely tailored, as noted supra p. 521, to the Attorney General’s application. It would be impossible for the Division to appoint independent counsel without in some manner defining— and restricting — the scope of her authority.45 When an appointment is made to a preexisting office, the title of the office may be all that is needed to define the duties of the new appointee. But where a statute provides for ad hoc appointments, such that the office itself must be defined at the time of appointment, the power to define is a necessary incident of the power to appoint.46
Appellants also contend that the Special Division’s resolution of independent counsel’s application for referral of certain allegations against appellants Dinkins and Schmults constitutes a supervisory function violative of Article III. However, the Division’s handling of independent counsel’s application is entirely consistent with the “case or controversy” requirement. The Department of Justice filed a Response opposing the application, and independent counsel replied to the Department’s Response. In re Olson, 818 F.2d 34, 35 (D.C.Cir.Indep.Couns.Div.1987). Thus the application was reviewed in a contested proceeding, with opposing views presented by parties possessing “such a personal stake in *535the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Division provided a full and reasoned explanation of its decision. See In re Olson, supra. There seems little basis for the charge that the Division fell short of Article III requirements.
The essence of appellants’ complaint, and of the majority’s response to it, is that the Special Division’s authority to resolve such questions as an application for expanded jurisdiction renders it independent counsel’s de facto supervisor.47 That charge is more properly understood as a separation of powers claim, and was addressed as such supra at I.A. Nothing in the Act, however, prevents the Special Division from handling those jurisdictional issues assigned to it in a manner consistent with Article III, as it has done in the present case.48 I conclude that each administrative task assigned the Special Division under the Act is either an incident of the power to appoint, or one that has been performed in the context of an adversarial proceeding. There is no violation of Article III.
IV.
Appellant Olson advances a statutory claim: that the Special Division could not, consistently with the Act, define independent counsel’s jurisdiction to include investigation of possible conspiracy charges against Olson.
Independent counsel Morrison applied to the Special Division for jurisdiction to investigate allegations against two additional Department of Justice officials, urging in part that “the known facts raise a reasonable suspicion that Olson, Schmults, and Dinkins may have acted together____” Reply to Department of Justice Response to Independent Counsel’s Application for Referral of Related Matters Pursuant to 28 U.S.C. § 594(e), at 11 (filed March 9, 1987). The Special Division denied independent counsel’s request regarding Schmults and Dinkins, reading the Act to mean that the Attorney General’s prior decision not to refer allegations against those two individuals precluded any such referral by the court. In re Olson, 818 F.2d at 47. The court did, however, interpret its original grant of jurisdiction as to Olson to include possible conspiracy charges. Id. at 47-48. Olson argues that this interpretation is precluded by the reasoning the court applied to the Schmults and Dinkins allegations: since the Attorney General had not specifically referred the conspiracy charges, the court could not do so.
I find Olson’s claim premature. In Deaver v. Seymour, 822 F.2d 66 (D.C.Cir.1987), this court held unripe a preindictment challenge to the constitutionality of the Ethics Act, citing the policy against preindictment challenges to “defects in the institution of the prosecution.” Id. at 70. In In re Sealed Case, 829 F.2d 50 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988), we held unripe Oliver North’s similar constitutional claim, given the valid parallel appointment of independent counsel by the Attorney General, because “any harm to North that is a sufficiently direct and immediate consequence of the Ethics Act must involve an investigative or prosecutorial activity that Walsh would not undertake if he depended for his authority solely upon the Attorney General’s regulation.” Id. at 61. Analogously, Olson’s statutory claim can be deemed ripe only if he can show that the contempt order on appeal here, or the underlying subpoena, would not have issued but for the court’s having included conspiracy allegations in its interpretation of the jurisdictional grant. No such showing — or allegation — has been made. I therefore decline to reach the merits of Olson’s statutory claim.
*536Conclusion
The Ethics in Government Act is a carefully considered congressional journey into the sometimes arcane realm of the separation of powers doctrine, more particularly, into areas the framers left undefined. The Act is designed to prevent Congress’ own appropriation of the functions it insulates from executive supervision, and it implements a fundamental control essential to our Constitution’s doctrine of separated powers: the control of mutual checks. It is a measure faithful to the eighteenth century blueprint, yet fitting for our time. I find the Ethics Act constitutional, and would affirm the judgments of the. district court.
. It is not necessarily a "core” executive function. See infra pp. 526-27.
. 28 U.S.C. § 595(e) reads:
A majority of majority party members or a majority of all nonmajority party members of the Committee on the Judiciary of either House of the Congress may request in writing that the Attorney General apply for the appointment of [an] independent counsel. Not later than thirty days after the receipt of such a request, or not later than fifteen days after the completion of a preliminary investigation of the matter with respect to which the request is made, whichever is later, the Attorney General shall provide written notification of any action the Attorney General has taken in response to such request and, if no application has been made to the division of the court, why such application was not made. Such written notification shall be provided to the committee on which the persons making the request serve, and shall not be revealed to any third party, except that the committee may, either on its own initiative or upon the request of the Attorney General, make public such portion or portions of such notification as will not in the committee’s judgment prejudice the rights of any individual.
. A similar role is performed by the requirement of § 596(a)(2) that the Attorney General submit to the Special Division and to Congress a report regarding any decision to remove an independent counsel. The removal decision is subject to judicial review, see infra p. 522; unlike the decision whether to seek appointment of independent counsel, removal does not involve an exercise of prosecutorial discretion. See also infra p. 528 note 29.
. If the reason for not appointing a special prosecutor is the fact that the matter is so unsubstantiated as to not warrant further investigation or prosecution, the Attorney General’s explanation under this subsection need only state that fact. The Committee does not intend that the Attorney General go into any detail with regard to the basis for the decision made in the exercise of his prosecutorial discretion that a matter simply did not warrant any further investigation or prosecution after the conclusion of a preliminary investigation.
S.Rep. No. 170, 95th Cong., 1st Sess. 72 (1977), reprinted in 1978 U.S. Code Cong, a Admin.News 4216, 4288. I note here the clear understanding of Congress that under the Act as originally conceived and as renewed, the Attorney General’s decision whether to request appointment of *520an independent counsel is not subject to judicial review. See Independent Counsel Reauthorization Act of 1987, H.R. Conf.Rep. No. 452, 100th Cong., 1st Sess. 22 (1987) (except for Attorney General’s decision to remove an independent counsel, "an Attorney General’s determinations under the independent counsel law are not subject to judicial review").
. I use the term "administrative" to refer to duties which include interpretation of the Act and the original grant of jurisdiction, but which do not involve the Special Division in the day-today supervision of independent counsel’s investigative and prosecutorial activities.
. The Division does have the duty to decide whether to refer "matters related to the independent counsel's prosecutorial jurisdiction” when such a request is made by independent counsel. See 28 U.S.C. § 594(e). This function may require clarification of the original jurisdictional grant, cf. In re Olson, 818 F.2d 34, 47-48 (D.C.Cir.Indep.Couns.Div.1987), but it does not involve examining the manner in which independent counsel conducts an investigation or prosecution within the limits of her jurisdiction, as a supervisor would do. Expansion of independent counsel’s jurisdiction requires a request by the Attorney General. § 593(c).
.Under the Independent Counsel Reauthorization Act of 1987, the forum for judicial review of the removal of an independent counsel is the United States District Court for the District of Columbia and no member of the Special Division may participate in the review proceedings. 28 U.S.C. § 596(a)(3) (as amended Dec. 15, 1987). The change is effective immediately. Independent Counsel Reauthorization Act of 1987, Pub.L. No. 100-191, § 6(b)(2)(F), 101 Stat. 1293 (1987).
. 28 U.S.C. § 546 reads:
The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
. 28 U.S.C. § 592(d)(1) provides:
Any application under this chapter shall contain sufficient information to assist the division of the court to select [an] independent counsel and to define that independent counsel’s prosecutorial jurisdiction.
. I note too the cardinal principle that courts construe statutes, whenever fairly possible, to avoid any constitutional conflict. See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1318-19, 59 L.Ed.2d 533 (1979).
. Accord In re Olson, 818 F.2d 34 (D.C.Cir.Indep.Couns.Div.1987) (holding that Attorney General’s decision not to refer certain matters to independent counsel precludes Special Division from making the same referral).
.28 U.S.C. § 595(b) reads:
(1) In addition to any reports made under subsection (a) of this section, and before the termination of [an] independent counsel’s office under section 596(b) of this title, such independent counsel shall submit to the division of the court a report under this subsection.
(2) A report under this subsection shall set forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought, and the reasons for not prosecuting any matter within the prosecutorial jurisdiction of such independent counsel which was not prosecuted.
(3) The division of the court may release to the Congress, the public, or to any appropri*522ate person, such portions of a report made under this subsection as the division deems appropriate. The division of the court shall make such orders as are appropriate to protect the rights of any individual named in such report and to prevent undue interference with any pending prosecution. The division of the court may make any portion of a report under this section available to any individual named in such report for the purposes of receiving within a time limit set by the division of the court any comments or factual information that such individual may submit. Such comments and factual information, in whole or in part, may in the discretion of such division be included as an appendix to such report.
.See § 596(b)(2):
The division of the court, either on its own motion or upon suggestion of the Attorney General, may terminate an office of independent counsel at any time, on the ground that the investigation of all matters within the prosecutorial jurisdiction of the independent counsel or accepted by such independent counsel under section 594(e) of this title, and any resulting prosecutions, have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions. At the time of termination, the independent counsel shall file the report required by section 595(b) of this title.
The majority finds a similarity between the Special Division’s power to terminate an office of independent counsel on its own motion and the removal provision at issue in Bowsker. Maj. Op. at 514-15. However, the legislative history of the Act makes it clear that the termination provision was intended to serve only as a measure of last resort, one to arrest a "runaway” independent counsel:
This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed____ The drastic remedy of terminating the office of special prosecutor without the consent of the special prosecutor should obviously be exercised with caution.
S.Rep. No. 170, 95th Cong., 1st Sess. 75 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 4216, 4291.
. I recognize that appellants’ deeper objection is to the imposition of any limitations on the President’s power to remove independent counsel. That issue is addressed infra p. 528 at I.C.
. I note, moreover, that even if it were arguable that the Act, prior to the 1987 reauthorization, empowered the Division to review a removal de novo, appellants here would have encountered a ripeness shoal. To claim that the prospect of de novo Division review of a removal would affect independent counsel’s judgments *523"here-and-now," see Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3189 n. 5, 94 L.Ed.2d 583 (1986), one would have to posit that independent counsel would have proceeded to engage in an investigative or prosecutorial activity that she would have resisted had she contemplated merely deferential judicial review of an Attorney General’s future determination to remove her for cause. This is surely speculation run rampant, all the more so given that the review standard in question was unclear on its face and had not been authoritatively construed. Cf. In re Sealed Case, 829 F.2d 50, 61 (D.C.Cir.1987) (”[A]ny harm to [appellant] that is a sufficiently direct and immediate consequence of the Ethics Act must involve an investigative or prosecutorial activity that [independent counsel] would not undertake if he depended for his authority solely upon the Attorney General’s regulation.”) (emphasis in original), cert. denied, — U.S. -, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988).
.Nor is there any transfer of authority to Congress. In addition to § 595(e), discussed supra pp. 519-20, § 595(a) requires independent counsel to report to Congress "from time to time,” and § 595(d) provides for congressional oversight. Neither provision affords the legislature an opportunity for "substantial involvement ... in the enforcement of federal criminal law," as appellants suggest. Brief of Appellant, No. 87-5264 (Appellant’s Br. I) at 23. The reporting provision, § 595(a), provides that the "statements and reports shall contain such information as such independent counsel deems appropriate.” This requirement to report what independent counsel deems fitting cannot intrude intolerably on independent counsel’s autonomy. The oversight provision, § 595(d), is surely less intrusive than the investigation approved in McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927), discussed supra p. 520. Compare, e.g., 50 U.S.C. § 413(a), which requires the Director of Central Intelligence to report to Congress regarding intelligence activities.
. The Attorney General has the authority to determine whether information initially received is "sufficient to constitute grounds to investigate,” § 592(a)(1), and following a preliminary investigation, whether “further investigation or prosecution is warranted.” § 592(c)(1). The operation of the Act is mandatory only in the sense that when the Attorney General determines that investigation or prosecution of a covered individual is warranted, he cannot pursue the matter within the Department of Justice but must apply for appointment of an independent counsel.
. Moreover, it is appropriate to recall a crucial qualification Madison featured in discussing the requirement "that the three great departments of power should be separate and distinct.” Referring to the "oracle” on this subject, "the celebrated Montesquieu,” Madison wrote:
[Montesquieu] did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. This would have been the case in the constitution examined by him, if the King who is the sole executive magistrate, had possessed also the compleat legislative power, or the supreme administration of justice; or if the entire legislative body, had possessed the supreme judiciary, or the supreme executive authority.
The Federalist No. 47, at 325-26 (J. Madison) (J. Cooke ed. 1961) (emphasis in original).
. The majority places great weight on the concept of a "unitary executive.” See Mai. Op. at 488-89. In my colleagues’ view, encroachment on the unity of the executive — the singleness of the Presidency — is synonymous with encroachment on the executive’s power "to take Care that the Laws be faithfully executed." Their approach suggests that it is a per se constitutional violation to place any check upon absolute executive branch control of prosecution.
However, it is far from evident that the duty to "take Care” was intended to establish unbridled authority in the President and his men. More plausibly, the words were meant to import a limitation:
Indeed, the Framers probably included the "faithful execution" clause in the Constitution to limit, not expand, the President’s power. The clause was intended to rule out any power for him to dispense with, or suspend, the execution of the laws. Thus, the President may not always have the power to direct the execution of the laws, but merely a duty to do so when the laws have not excluded his direction.
Tiefer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U.L. Rev. 59, 90 (1983) (footnotes omitted). See also id. at 90 nn. 151, 152; L. Tribe, American Constitutional Law 253 (2d ed. 1988); Henkin, Foreign Affairs and the Constitution, 66 Foreign Affairs 284, 310 (1987/88) (clause obliges President to "take care that the laws [of Congress] be faithfully executed”).
The majority slides down a steep slippery slope of its own making in suggesting that my position abides any and all intrusions on the enforcement functions of the executive. See Maj Op. at 501, 505. The correct constitutional issue, I believe, is the effect of an intrusion into one branch’s assigned functions on the overall balance of powers. See infra p. 525 note 20; supra p. 523 note 18.
. There is no reason to suppose that the Schor analysis applies only to the judiciary. Just as the life tenure and salary provisions guarantee the independence of Article III judges, see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59-60, 102 S.Ct. 2858, 2865, 73 L.Ed.2d 598 (1982), so the provision for a unitary executive was intended to enable that branch to fulfill its constitutional role. The ability of each of the three branches to perform its assigned functions well is crucial to maintaining the proper balance among them. Here, as in Schor, Congress has distributed a portion of the assigned responsibility of one branch to an independent agent. Thus the same value is at stake in both cases: preserving the balance of powers.
It might be argued that intrusion on the executive branch presents a greater threat than intrusion on the judiciary, because of the danger that the remaining political branch — the legislature — might occupy the area vacated by the executive. "Power abhors a vacuum. Unhitching the Independent Counsel from the executive may make the office naturally prone to domination by the branch that represents its primary competitor." In re Sealed Case, 829 F.2d 50, 65 n. 3 (1987) (Williams, J., concurring and dissenting). But here Congress has interposed the judiciary as administrator of the independent counsel provisions, thus securing independence from legislative as well as executive interference.
. In deciding that removal of a special prosecutor should only be for the causes described above, and should only be accomplished by the personal action of the Attorney General, the Committee was attempting to balance the need for independence for a special prosecutor with the desire, for constitutional and other reasons, that the division of the court not be engaged in supervision of the special prosecutor. In order to exercise the removal power, a certain degree of supervision is required and the Committee felt it appropriate that this supervision be conducted by the Attorney General, who is a member of the executive branch of the government.
S.Rep. No. 170, 95th Cong., 1st Sess. 73 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 4216, 4289.
. Appellants advance two additional arguments: that assigning some prosecutorial duties to officers outside the executive branch may result in uneven and unfair application of the laws, and that the absence of executive branch control may permit some activity contrary to U.S. foreign policy. Appellant’s Br. I at 25-26. There is no allegation that any conflict with foreign policy has been identified in the present case, and there is no reason to suppose that problems that might arise cannot be handled by district court control on a case-by-case basis. Two points can be made in regard to the charge of uneven application. The framers certainly did not have in their immediate view a centralized federal prosecutorial corps; nominally supervised by the Secretary of State, federal district attorneys were largely independent actors during the Federalist period. L. White, The Federalists: A Study in Administrative History 406-08 (1948). Second, the Act is designed precisely to prevent uneven application of a different sort: improperly lax investigation and prosecution of high government officials. If unequal treatment is a danger with the Ethics Act, it is also a danger — one of grave concern to Congress— without the Act. See also infra p. 527 note 26.
. Appellants advance this characterization in the context of their argument that the President’s power to remove independent counsel should be unrestricted, but it is apposite to the present analysis as well. Appellant’s Br. I at 31-33.
. See infra note 41; see also Henkin, supra note 19, 66 Foreign Affairs at 286, 290 (framers lacked "comprehensive, coherent conception of [President’s] office”).
. As Madison cautioned, because men among the governors as well as the governed are not angels, the departments of government should be divided and arranged so that "each may be a check on the other.” The Federalist No. 51, at 349 (J. Madison) (J. Cooke ed. 1961).
. That the king or his special courts not judge the king’s own men and allow them to escape the ordinary processes of justice was of concern to eighteenth century political thinkers. See, e.g., A. de Tocqueville, The Old Regime and the Revolution 73, 77-78 (J. Bonner trans. 1856).
. The unity of the executive branch was intended to serve the ends of responsibility and accountability. See Brief of Amicus Curiae United States (DOJ Br.) at 8 (citing The Federalist No. 70, at 476-77 (A. Hamilton) (J. Cooke ed. 1961)). *528The Ethics Act is in this light complementary; it too promotes the responsibility and accountability of the executive.
. This discussion of Congress' purpose in enacting the Ethics Act is not meant to endorse independent counsel’s argument that the Act is constitutionally justified simply because it is needed. Cf. Brief of Appellee, Nos. 87-5261, 87-5264, 87-5265 (Appellee’s Br. I) at 25-28. The present point is only that Congress’ purpose comports with the essential design of checks and balances.
. The House conference report on the 1987 reauthorization of the Act clarifies Congress’ intent that "good cause” not be construed to include failure to follow Presidential policy. Explaining their decision not to include a proposed statement to that effect, the conferees state:
While the conferees remain extremely concerned about recent erroneous statements by the Department of Justice that an independent counsel may be fired for failing to obey any Presidential order — even an order which would compromise the very integrity of an independent counsel’s proceedings — the conferees are confident that any court reviewing the removal of such an independent counsel would reject the Department’s reasoning.
Independent Counsel Reauthorization Act of 1987, H.R.Conf.Rep. No. 452, 100th Cong., 1st Sess. 37 (1987).
.The President has the power to remove U.S. Attorneys at will, 28 U.S.C. § 541(c), but it is the Attorney General who has the parallel power to remove Assistant U.S. Attorneys. 28 U.S.C. § 542(b). The difference is not significant, since the Attorney General "is the hand of the President in taking care that the laws of the United States ... be faithfully executed.” Pond v. Fessenden, 258 U.S. 254, 262, 42 S.Ct. 309, 311, 66 L.Ed. 607 (1922). Had the Act granted the Attorney General (but not the President) an unrestricted power to remove independent counsel, it is doubtful that any limitation-on-removal challenge would remain.
. The Federal Trade Commission Act provided: "Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” FTCA, ch. 311, 38 Stat. 717 (1914) (codified at 15 U.S.C. § 41 (1982)).
. This distinction accords with that between a transfer of authority and the lesser step of a limited incursion on, or siphoning off from, another branch’s domain. See supra pp. 523-24.
. No party or amicus contends that Congress may restrict the President's power to remove any executive officer. ”[T]here are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President.” Bowsher, 106 S.Ct. at 3207 (White, J., dissenting).
. Justice White made this point in his Bowsher dissent:
Although the Court in Humphrey’s Executor characterized the powers of the Federal Trade Commissioner whose tenure was at issue as "quasi-legislative” and "quasi-judicial,” it is clear that the FTC’s power to enforce and give content to the Federal Trade Commission Act’s proscription of “unfair” acts and practices and methods of competition is in fact "executive” in the same sense as is the Comptroller’s authority under Gramm-Rudman — that is, it involves the implementation, (or the interpretation and application) of an act of Congress. Thus, although the Court in Humphrey's Executor found the use of the labels "quasi-legislative” and “quasi-judicial” helpful in "distinguishing” its then-recent decision in Myers v. United States, [citation], these terms are hardly of any use in limiting the holding of the case; as Justice Jackson pointed out, ”[t]he mere retreat to the qualifying ‘quasi’ is implicit with confession that all recognized classifications have broken down, and ‘quasi’ is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.” FTC v. Ruberoid Co., 343 U.S. 470, 487-88 [72 S.Ct. 800, 810, *53096 L.Ed. 1081 (1952)] (Jackson, J., dissenting).
Bowsher, 106 S.Ct. at 3207 n. 3 (White, J., dissenting).
. [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
U.S. Const, art. II, § 2, cl. 2.
. But cf. United States v. Germaine, 99 U.S. (9 Otto) 508, 509-10, 25 L.Ed. 482 (1878):
The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferi- or to those specially mentioned, Congress might by law vest their appointment in the *531President alone, in the courts of law, or in the heads of departments.
It is not necessary for the resolution of this case to decide whether heads of departments should *532be counted among the officers "specially mentioned.”
. Appellants themselves reject the argument advanced by the Department of Justice, see DOJ Br. at 13-14, and adopted by the majority, Maj. Op. at 484, that subordinacy alone determines inferior status. Appellants’ Reply Br. II at 2 n. 3. Even heads of departments, they note, have a superior: the President. See also Appellee’s Br. I at 38 n. 38.
. The district court held independent counsel an inferior officer, relying in part on the fact that “he [sic] is appointed for a single task to serve for a temporary limited period.” July 20, 1987 D.D.C. Memorandum at 3 (quoting In re Olson, 818 F.2d at 44), and on United States v. Eaton, 169 U.S. 331, 343, 18 S.Ct. 374, 379, 42 L.Ed. 767 (1898) ("Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.’’).
The majority, on the other hand, suggests that independent counsel’s responsibilities are comparable to those of a department head: “[I]t could well be argued that independent counsel, who often supervise more employees than cabinet departments once employed, are themselves ‘heads of departments].]’ ” Maj. Op. at 487. Whatever the merit of this anachronistic argument, it is the law of this circuit that the Attorney General may appoint an independent counsel with the exact duties granted under the Act, constrained only by the practically remote possibility that the regulation could be revoked and the appointment thereby terminated. In re Sealed Case, 829 F.2d 50 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988). The nature and scope of the duties of such an appointee, our precedent thus affirms, fit those of an inferior officer.
. It is quite clear that the Siebold court was interpreting the Appointments Clause and not, as the majority opinion suggests, merely asking whether the act in question imposed "duties not judicial” on the circuit court. See Maj. Op. at 493. It is also clear that Siebold distinguished Hayburn’s Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792). The authority to appoint inferior officers was found in the Appointments Clause; Haybum’s Case had considered an Article III challenge. Id., 2 U.S. at 398.
. The majority reads Siebold not to implicate the separation of powers issue. Maj. Op. at 493. I disagree: the election commissioners had enforcement responsibilities, and even if the character of their duties is not entirely certain, see 100 U.S. at 397, the separation of powers inquiry remains apt, under the incursion, albeit no transfer, heading. See supra pp. 523-24.
. At least some members of the First Congress shared the view that judicial appointment of federal prosecutors was constitutionally permissible. The first Judiciary Act as reported by the Senate Judiciary Committee provided:
[E]ach District Court shall appoint a meet Person learned in the Law to act as Attorney for the United States in such District, and shall swear him to the faithful Execution of his Office, whose duty it shall be to [prosecute] in such District all Delinquents for Crimes & Offences, cognizable under the authority of the United States and all [ci]vil Actions [in which the United States shall be concerned] ... And he shall receive as a compensation for his services such Fees as shall be taxed therefor in the respective Courts before which the Suits or Prosecutions shall be — And the Supreme Court shall also appoint a meet person learned in the Law to act as Attorney General for the United States ... whose duty it shall be to prosecute and conduct all Suits in such Court in which the United States shall be concerned, and to give [his] advice and opinion upon Questions of Law when required by the President of the United States, or when requested by the Heads of any of the Departments[.]
Documentary History of the First Federal Congress, 1789-1791, 5 Legislative Histories 1193-94 (1986) (Senate Bill 1 as reported to the Senate by committee member Senator Richard Henry Lee of Virginia, June 12, 1789).
The majority's argument that the change to Presidential appointment "may have been motivated by constitutional concerns,” Maj. Op. at 492, is entirely speculative. The letter from Robert Livingston quoted by the majority was cited by the House of Representatives’ Brief in support of the proposition that the decision regarding the appointment of prosecutors was one of "discretionary choice,” not constitutional compulsion. Brief of Amicus Curiae House of Representatives at 28. The House emphasizes what Livingston thought would be "better." My colleagues place the emphasis elsewhere. No winner can be declared in debate of this order. In matters so shrouded in doubt, resort to lines later penned by framers "is often not fruitful," surely never "determinative." See Henkin, supra note 19, 66 Foreign Affairs at 286, 290, 307.
. See supra p. 527 note 26.
. Even absent the responsibility for reviewing removal of an independent counsel, see supra p. 520 note 7, the Special Division clearly is a court of law. See infra pp. 534-35.
. Compare the majority opinion at 511-17, maintaining that the court serves as independent counsel's day-to-day supervisor. That argument is presented under an Article III rubric; it could equally be styled a separation of powers claim.
. Compare 28 U.S.C. § 515(a), which requires that a special U.S. Attorney be "specifically directed” before "conduct[ing] any kind of legal proceeding.”
. Advising independent counsel of her conflict of interest status similarly is an integral part of the process of defining her office and responsibilities. See D.C. Cir. Indep. Couns. Div. Order, No. 86-1, filed June 18, 1986 (under seal).
. The majority’s argument that the Special Division exercises supervisory powers over independent counsel, Maj. Op. at 511-17, I note, is less than fully consistent with my colleagues’ earlier position that independent counsel is a principal or non-inferior officer because she has no superior. Maj. Op. at 481-87.
. There is no reason to suppose that the Special Division will not continue to resolve statutorily-assigned questions as they may arise — e.g., termination under § 596(b)(2) — in the context of adversarial proceedings.