dissenting.
I dissent because I believe that the Sentencing Guidelines withstand all constitutional challenges. I also believe that if the Guidelines are found unconstitutional, the “good time” credit provisions are severable from the infirm sections of the Sentencing Reform Act.1
This is a case about power: the power and authority the Constitution grants to our three branches of government. I agree that any question of the Sentencing Commission’s placement in the judicial branch must recognize function over form. But a functional approach to a separation of powers inquiry demands a determination whether an allocation of authority to one branch compromises the constitutionally mandated role of all the branches. The majority is content, I believe, with finding that the participation of three article III judges on the Commission compromises their status as federal judges, and thus renders the Commission’s work infirm. For reasons explained below, I reject this conclusion. More importantly, I believe that it answers the wrong question in the wrong order. While the majority exalts function, they have forgotten form, that is, the essential structure of a separation of powers analysis.
The inquiry I adopt is straight-forward. First, I ask what power is being assigned by Congress in the Sentencing Reform Act (the “Act”), and whether the power is properly within Congress' domain. I believe that the power to prescribe sentences for *1269violations of the laws of the United States is assuredly within the congressional mandate. Next, I determine whether Congress properly gave the power to another entity, the Sentencing Commission (the “Commission”), irrespective of that entity’s particular placement in the scheme of government. This is the issue of delegation. I believe that Congress properly delegated the job of devising determinate sentencing guidelines to the Commission.
These questions are significant because they provide answers that directly inform the next inquiry: whether the Commission was properly placed in the judicial branch. I begin with the essential premise that the Constitution itself requires that we presume Congress’ allocation of power to another branch is lawful. The Framers would not have permitted the powers of the federal government, limited as they were, to go unexercised for lack of an authority to assign them, where necessary. That authority is vested in Congress. There are, however, limits to that prerogative, and limits to our deterrence of Congress’ authority to allocate.
The first limit is that Congress may not assign a power it had no right to exercise itself, such as one granted to the states, or to the people in the form of an essential guaranty or freedom. This is nothing more than a restatement of the first question: whether sentencing is properly within Congress’ domain. Next, I ask whether another explicit constitutional provision demands an alternate allocation, that is, whether the constitution itself has removed certain discretion from Congress to assign functions to another branch. I believe there is no such alternate allocation in this case. Finally, I consider whether the allocation of power constitutes a genuine threat to the ability of any branch to carry out its constitutionally assigned duties. I will consider, in turn, the impact of the Commission’s placement in the judicial branch on Congress, the Executive, and the judiciary itself. I believe that no branch’s work is compromised by the Act and that Congress’ decision satisfies every step of this most demanding, yet sensible, inquiry.
A. Congressional Power to Issue Mandatory Sentencing Guidelines
Before one can determine whether any delegation to the Commission was proper, it must be decided whether it was in Congress’ power to issue mandatory sentencing guidelines. It is an article of faith that Congress does indeed have power to establish, if it so desires, mandatory and precise sentences for crimes. See Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916) (it is indisputable “that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided, belongs to the executive department.”); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). Indeed, judges in the early days of the Republic had no broadranging authority to define varying sentences. United States v. Grayson, 438 U.S. 41, 45, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978). The practice of Congress prescribing wide sentence ranges, with judges setting precise sentences, evolved later.
Consequently, there is no due process right to individualized sentencing. The Supreme Court has held that “the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative” in non-death penalty cases. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Courts that have considered due process challenges to mandatory sentence statutes have uniformly rejected them. See Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 651-52, 17 L.Ed.2d 606 (1967) (upholding recidivist mandatory sentencing); United States v. Smith, 818 F.2d 687, 691 (9th Cir.1987). It was, therefore, completely within Congress’ power to establish mandatory sentencing guidelines.
*1270B. Proper Delegation to the Commission
Having established that Congress had the power to issue mandatory sentencing guidelines, it must be determined whether Congress properly delegated these duties to the Commission.
1. The Test of Nondelegability
Article I of the Constitution provides that “[a]ll legislative powers ... shall be vested in the Congress of the United States.” U.S. Const. art. I, § 1. The non-delegation doctrine embodies the notion that the “[f]ormulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate....” United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring). As the Supreme Court stated in Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Id. at 692, 12 S.Ct. at 504.
Whether a congressional delegation violates this doctrine does not, however, depend on whether the power delegated falls within the “core functions” of the legislature. This per se theory of nondelegability derives from Chief Justice Marshall’s dictum in Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (1825) that
[t]he line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.
Id. at 43. This “core functions” argument has, however, been repudiated in later Supreme Court jurisprudence. See Lichter v. United States, 334 U.S. 742, 778, 68 S.Ct. 1294, 1313, 92 L.Ed. 1694 (1948) (“A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.”). Moreover, judicial adoption of a “core functions” analysis would “be effectively standardless.” Sy-nar v. United States, 626 F.Supp. 1374, 1385 (D.D.C.), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). And even if a “core functions” analysis were adopted in this case, it is doubtful whether the determination of criminal penalties and sentencing would be a core legislative function. See, e.g., United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911) (upholding delegation to Secretary of Agriculture to regulate use of forests with criminal sanctions); United States v. Daniel, 813 F.2d 661, 662-63 (5th Cir.1987) (upholding scheduling of controlled substances); United States v. Davis, 564 F.2d 840, 843-44 (9th Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978) (same).
Nor is it a requisite for proper delegation that it be supported by some rigorous “principle of necessity.” Although the Supreme Court has occasionally recognized the “necessity” for a delegation, see e.g., Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 355, 48 L.Ed. 525 (1904), it is doubtful whether that word means anything more than the word “necessary” in the “necessary and proper” clause of the Constitution. U.S. Const. art. I, § 8, cl. 18; see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-15, 4 L.Ed. 579 (1819) (rejecting theory that “necessary and proper” means “absolute physical necessity”). In any case, while “necessity” has been noted by the Supreme Court in upholding a delegation, “lack of necessity” has never been invoked to strike one down. This per se theory of nondelegation must also fail.
These per se theories of nondelegability aside, the classic exposition of the doctrine was in J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), where Chief Justice Taft wrote that so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Id. at 409, 48 S.Ct. at 352. Under this test, only two statutes have been declared un*1271constitutional by reason of undue delegation. Both involved portions of the controversial National Industrial Recovery Act of 1933. See A.L.A. Schechter Poultry Corp., v. United, States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (invalidating a statute that permitted members of an industry to propose, and the President to approve, “codes of fair competition” where Congress had neglected to define “fair competition”); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) (invalidating statute which failed to set forth any policy or rules to guide state officials in their determination of what production or shipping of petroleum products should be permitted). In the fifty years since these two cases, courts have always rejected delegation challenges. See Synar, 626 F.Supp. at 1383 n. 9 (citing all recent cases where delegation challenges have been rejected).
2. Applying the Test
When the J. W. Hampton test for nondel-egability is applied to the mandate given to the Sentencing Commission, it is manifest that Congress offered an “intelligible principle” and substantial guidance for its work.2 Indeed, compared with the numerous other very broad legislative delegations that have withstood judicial scrutiny, the provisions in the Sentencing Reform Act appear almost constricting. See e.g., Lichter, 334 U.S. at 785-86, 68 S.Ct. at 1316-17 (delegating enactment of standards “permitting recovery of excessive profits”); Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 600, 64 S.Ct. 281, 287, 88 L.Ed. 333 (1944) (permitting Commission to fix “just and reasonable” rates for natural gas); National Broadcasting Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 1013-14, 87 L.Ed. 1344 (1943) (permitting licensing of radio communications “as public interest, convenience, or necessity [requires]”); see also 28 U.S.C. § 994(b)(1) (requiring that Commission’s sentencing guidelines be consistent with Criminal Code).
Defendants maintain, however, that the mandatory character of the guidelines compel a finding of nondelegability. See Comment, The Constitutional Infirmities of the United States Sentencing Commission, 96 Yale L.J. 1363, 1375 (1987) (“Only if the standards for departure [from the guidelines] and appellate review are stretched to make the guidelines into presumptive recommendations can the non-delegation challenge be met.”) [hereinafter “Yale Comment”]. Whether the guidelines are mandatory has no effect on Congress’ delegation. Congress often delegates authority for mandatory laws and regulations. See National Cable Television Ass’n v. United States, 415 U.S. 336, 342, 94 S.Ct. 1146, 1149-50, 39 L.Ed.2d 370 (1974). Defendants also suggest that Congress left too many policy determinations to the Commission. These included whether a conviction-based or real offense system would be used to determine the seriousness of the offense, the weight given to the seven relevant factors concerning the character of the offense, whether a fine should be imposed and probation allowed, whether confinement could be served other than in a prison, and whether plea bargaining should be permitted in the future. Most importantly, the Commission was required to decide the absolute base level for each crime, which reflected not only the Commissioners’ belief of the seriousness of the offense, but also established the lowest end of the sentencing parameters. Finally, it was left to the Commission to decide whether to establish sentencing procedures *1272that would permit the reinstatement of the death penalty. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (absence of adequate statutory standards precluded the imposition of the death penalty provisions that remained in the Federal Criminal Code). Obviously, defendants do not challenge whether the Commission made the right choices concerning these policy questions. Instead, they argue that because these decisions were left to the discretion of the Commission it violated the delegation doctrine.
It is true, as the district court noted, that “defendants point out several areas where Congress could have given more guidance to the Commission than it did. That is not the test, however.” Arnold, 678 F.Supp. at 1468. “It is not necessary that Congress supply ... a specific formula ... in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” Lichter, 334 U.S. at 785, 68 S.Ct. at 1316. On balance, I believe that Congress provided substantial and detailed guidance for the Commission. Congress specified that a double-matrix system be used, 28 U.S.C. § 994(b)(1), and detailed the factors to be considered in sentencing. Id. §§ 994(c), (d). Congress required that the Commission establish policies and practices that conformed with the purposes of sentencing, including deterrence, public protection, rehabilitation, and punishment commensurate with the seriousness of the crime. Id. § 991(b)(1)(A); 18 U.S.C. § 3553(a)(2). Congress demanded the imposition of maximum or substantial terms for specified defendants and offenses, 28 U.S.C. § 994(h), (i), while also requiring the Commission to take care not to increase prison over-crowding. Id. § 994(g). The guidance given to the Commission by Congress satisfies the requirements of the delegation doctrine. The Sentencing Reform Act did not constitute an invalid delegation of legislative power.
C. Separation of Powers Violations
The district court held that the placement of the Sentencing Commission in the judicial branch violated the separation of powers doctrine. The majority agrees with this conclusion. To consider this challenge a court must decide whether that placement created a genuine threat to the ability of any branch of the government to carry out its constitutionally assigned duties.3
It is “a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power.” Springer v. Government of the Philippine Islands, 277 U.S. 189, 201-02, 48 S.Ct. 480, 482, 72 L.Ed. 845 (1928). This does not mean, of course, that the three branches of government are hermetically sealed. Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). The declared purpose of separating and dividing the powers of government was to "diffus[e] power the better to secure liberty.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) (echoing the famous warning of Montesquieu in Esprit de Lois, quoted by James Madison in The Federalist No. 47, that “ ‘there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates’ ...” (The Federalist No. 47, at 325 (J. Cooke ed. 1961))).
I believe that the essential question for consideration here is whether Congress’ decision to assign the Commission as an independent agency within the judicial branch *1273compromises the constitutionally mandated functions, prerogatives, and roles of the legislature, the executive, or the judiciary itself. We should be mindful, of course, that congressional enactments are presumed constitutional. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). In addition, the Constitution itself affords the Congress the power to make the necessary allocation of authority needed to effectuate the powers of the federal government. The Constitution provides that Congress shall “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const. art. I, § 8, cl. 18; see generally, Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 36 Ohio St.L.J. 788 (1975). This means that Congress has the power to determine what is “necessary and proper” for carrying out its own functions, Ex Parte Curtis, 106 U.S. 371, 372, 1 S.Ct. 381, 383, 27 L.Ed. 232 (1882), as well as for executing the duties of the other branches of government. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (Congress has power to prescribe rules of evidence in federal courts); Bank of United States v. Halstead, 23 U.S. (10 Wheat.) 51, 6 L.Ed. 264 (1825) (Congress may legislate form and effect of executions on judgments recovered in federal courts).
The provision of the necessary and proper clause which grants to Congress the power to allocate functions among all the branches of government demands that any separation of powers challenge be viewed in a pragmatic and realistic way. See CFTC v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3261, 92 L.Ed.2d 675 (1986). Once again, the approach I adopt here is to determine first if any federalism concern is raised by the placement of the Commission in the judicial branch. Next I ascertain if the congressional allocation of authority directly contradicts any other constitutional provision which demands an alternate allocation. Finally, if these two per se tests do not yield a result, a court must see that Congress’ proposed allocation of power does not interfere with the constitutionally-assigned duties of the branches.
1. Per Se Limitations on Congress’ Power to Allocate Functions.
There are limits on Congress’ power to assign the duties of operating the federal government to its respective branches. These limits inform a separation of powers analysis. The first is that any allocation by Congress of authority must be within the bounds of the powers assigned to the federal government. Northern Secur. Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679 (1904). This threshold concern is not raised by the placement of the Sentencing Commission within the judicial branch, because, as noted above, supra § A, Congress has the power to issue sentencing guidelines.
Secondly, in exercising its power to allocate functions to the branches, Congress may not derogate another constitutional provision that demands a particular allocation of power. Such provisions include grants of individual liberties that may not be disturbed by legislation,4 and those that establish the mechanisms for making law (including prohibitions on certain forms of legislation).5 The defendants and the government argue that the very terms of *1274the President’s grant of power in the Constitution is such an alternative constitutional allocation of power that would render the placement of the Commission in the judicial branch invalid. I disagree, and, apparently by its silence, so does the majority. The Constitution’s statement that “[t]he executive power shall be vested in a President of the United States of America,” art. II, § 1, assuredly did more than “merely nam[e] the department;” it was also a grant of power to that branch. Myers v. United States, 272 U.S. 52, 151, 47 S.Ct. 21, 37, 71 L.Ed. 160 (1926) (subsequently overruled on other grounds). Part of this grant of power is, of course, that the President shall “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.6
The President’s power to enforce the laws cannot, in this case, provide a ground for a per se violation of separation of powers. Because criminal sentencing has been historically considered to be within the purview of all three branches, Geraghty v. United States Parole Comm’n, 719 F.2d 1199, 1211 (3d Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 133 (1984), assigning the Commission to the judicial branch cannot, on its face, be deemed a violation of an explicit constitutional mandate to the contrary. Only where the President has exclusive authority to enforce the laws can the constitutional grant of executive power be invoked as a per se basis for a separation of powers violation.
2. Impact Analysis
The final and decisive element in a separation of powers analysis, once federalism concerns and per se violations are considered, is the question first posed: does assignment of the Commission to the judicial branch constitute a genuine threat to the ability of any branch of the government to carry out its constitutionally assigned duties. This is not a per se inquiry. An allocation of power by Congress may not contravene another explicit allocation provided by the Constitution. Furthermore, an allocation of power may not so diminish (or so expand) the relative powers of one branch so as to render that branch unable to carry out its function or interfere with the prerogatives of another branch. See Miller, Independent Agencies, 1986 Sup.Ct.Rev. 41, 52-53 (this pragmatic approach “tends to view the separation of powers as a practical approach to government such that the division of powers between the branches, and the system of checks and balances by which those powers are related to one another, can stand considerable stretching in order to accommodate the changing needs of a modern society”). That is the question I consider now in reference to the Sentencing Commission’s placement in the judicial branch. I consider, in turn, the impact of this placement on the Congress, the Presidency, and the judiciary itself.
a. The Congress
An excessive delegation of power by Congress would definitionally constitute an adverse impact on its constitutionally assigned role to make law. U.S. Const. art. I, § 1; Field v. Clark, 143 U.S. at 692, 12 S.Ct. at 504. Because Congress had the power to issue sentencing guidelines and there was no excessive delegation in this instance, Congress’ power is neither diminished nor expanded by the assignment of the Commission to the judicial branch.
b. The Executive
The defendants and the government argue that it is an untoward violation of Presidential prerogative to allow the Sentencing Commission, while a part of the judicial branch, to engage in an executive function. While I have rejected the per se form of this argument, I must now consider the proposition that placement of the *1275Commission in the judicial branch compromises the executive’s prerogative to see that the laws are enforced.
The majority opinion and I agree that the basic test for the Commission’s placement in the national government is whether its duties are either executive or judicial in character. The parties contend that executing the law by implementing, outside a case or controversy context, the sentencing policy considerations directed by Congress is an executive, and not a judicial, function. In Bowsher v. Synar, the Supreme Court said that “[interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” 106 S.Ct. at 3192. When the executive carries out a “delegation” from Congress, this activity is nothing more than exercise of an Article II executive function. Chadha, 462 U.S. at 953, n. 16, 103 S.Ct. at 2785 n. 16. While the judiciary may engage in “rulemaking” of a procedural character, Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 425, 85 L.Ed. 479 (1941) (rejecting challenge to the Federal Rules of Civil Procedure which did not “abridge, enlarge, nor modify substantive rights”); 28 U.S.C. § 2072 (Rules Enabling Act), and may discharge non-judicial functions in managing the business of the judiciary, Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 85, 90 S.Ct. 1648, 1654, 26 L.Ed.2d 100 (1970), and may even engage in a limited type of prosecutorial authority to vindicate its own integrity through exercise of the criminal contempt power, Young v. United States ex rel. Vuitton et Fils S.A., — U.S. - 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), judges may not engage in substantive law-making. See United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812) (distinguishing power to affix punishment to a crime, which is outside judicial authority, from power to take actions necessary for punishing contempt).
I concur with all of these principles. Nevertheless, I believe that promulgating sentencing guidelines is fully consistent with the judicial mission. Once again, it is plain that various aspects of criminal sentencing have been shared by the three branches. Geraghty, 719 F.2d at 1211. These allocations of authority have changed over time. Grayson, 438 U.S. at 45, 98 S.Ct. at 2613. Congress’ most recent action in creating a Sentencing Commission and giving it authority to promulgate guidelines is just the latest instance of change. The executive’s interest in pronouncing guidelines is not absolute or vested. Congress may have previously granted to the President that authority, but Congress has the unquestioned power to withdraw it, as it has now.
Moreover, I reject the argument that the guidelines are more “substantive” than “procedural” and that, therefore, they must be left to executive implementation. These arguments smack of the same complaints against the Federal Rules of Civil Procedure when they were promulgated, complaints that were silenced by the Supreme Court’s decision in Sibbach, 312 U.S. at 9-10, 61 S.Ct. at 424-25. I believe that sentencing rule-making is closely tied to “the judicial process for.... administering remedy and redress.” Id. at 14, 61 S.Ct. at 426. The majority opinion discusses at some length the example of Congress’ refusal to grant the courts the power to establish testimonial privileges by rule-making. Their discussion misses the point. The real issue raised by that analogy is whether Congress itself had the power to establish the law of privilege. It plainly did, just as it has the power to fashion sentencing guidelines. The only difference in these two instances is that in the case of privileges Congress declined to allocate the power of rule-making to the judicial branch, whereas with the sentencing guidelines they did.
The defendants claim also that the guidelines are mandatory. That is true. The guidelines do limit sentencing judge’s discretion, but by no means completely. District judges will still have the power to make the essential determinations necessary for calculating the appropriate sentencing matrixes and can, in certain limited circumstances, alter the result when other factors are implicated which the guidelines had not contemplated. Guidelines, 1.6-1.8. *1276Characterizing the guidelines as “mandatory” misses the point. So are the Federal Rules of Civil and Criminal Procedure. No one today suggests for that reason they are unconstitutional.7
As discussed above, defendants have no right, in non-capital cases, to individualized sentencing. A decision that Congress had the power, on its own, to issue the guidelines answers the contention that some constitutional right is compromised by the guidelines. Congress did not erode the executive’s function in enforcing the law by assigning the Commission to the judicial branch.
c. The Judiciary
Two concerns are raised by the Commission being placed in the judicial branch. The first is that such placement violates the implicit “case or controversy” limitation on judicial authority. Such violation would mean the judiciary’s power would be unduly expanded if it were given non-judicial functions. Secondly, the majority argues that the required service of three Article III judges on the Commission diminishes the effectiveness of the judiciary and raises the spectre of real or perceived conflicts of interest. As an adjunct to that last contention it is argued that the President’s power to remove the Commissioners for cause also compromises the judiciary’s constitutionally-mandated functions. I will review each of these constitutional arguments in turn.
i. The “Case or Controversy” Limit on Judicial Power
The majority claims that it offends separation of powers doctrine for the Commission to be located in the judicial branch. This conclusion transcends mere separation of powers doctrine, and goes to the mandate that the judicial power of the United States shall extend only to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1; Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (“[T]he ‘case or controversy’ requirement defines with respect to the judicial branch the idea of separation of powers on which the Federal Government is founded.”); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980) (case or controversy requirement “defines the ‘role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government’ ”) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968)).
These general concerns of “case or controversy” take on greater meaning when they are translated into the prohibition of issuing advisory opinions and ensuring that judicial decisions are not reviewed by the executive or Congress. The doctrine that bars the judiciary from rendering advisory opinions has a long and distinguished constitutional history. 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3529.1, at 293-96 (1984); see also U.S. Const. art. II, § 2, cl. 1 (allowing President to secure written opinions of the “principal officer in each of the executive Departments,” but not mentioning advice from judges). The demand that judicial decisions be final, and not be subject to revision by Congress or the President, is rooted in much the same concern. 13 Wright, Miller & Cooper at 302-04 (dis*1277cussing Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), where this principle was first established). The essence of the rule is that Congress may not require courts to render decisions that will be subject to legislative revision. See Chicago & So. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14, 68 S.Ct. 431, 437-38, 92 L.Ed. 568 (1948); United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1852).
I do not believe that the Commission’s activities violate the prohibition against executive or legislative review of judicial decisions. The prohibition only requires that judicial decisions be final. The Commission issues no such decisions. It only promulgates rules. Likewise, none of the duties assigned to the Commission has any aspect of advisory jurisdiction. The Commission’s power to “give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant,” 28 U.S.C. § 994(s), its power to monitor the performance of the guidelines and issue instructions to probation officers and others enforcing them, id. § 995(a)(9), (10), and making “recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters,” id. § 995(a)(20), do not purport to give it the ability to decide an individual’s sentencing. That is left to the district courts.
The Commission may exist within the judicial branch and still not engage in “judicial” functions of a “case or controversy” character. I have no doubt the work of the Commission is in aid of that function. Other, arguably less “judicial,” functions have been assigned to courts of law and have withstood constitutional challenge. See Rice v. Ames, 180 U.S. 371, 21 S.Ct. 406, 45 L.Ed. 577 (1901) (upholding court appointment of commissioners to handle extradition matters); Ex parte Siebold, 100 U.S. 371, 397-98, 25 L.Ed. 717 (1879) (upholding statute which permitted circuit courts to appoint election supervisors); see also Morrison v. Olson, 108 S.Ct. at 2613, 2614 n. 20 (detailing other non-adversarial functions courts may exercise); Keller v. Potomac Elec. Power Co., 261 U.S. 428, 442-43, 43 S.Ct. 445, 448-49, 67 L.Ed. 731 (1923) (ruling that Congress’ power to exercise exclusive legislation over District of Columbia permitted it to assign district courts the responsibility to oversee Public Utilities Commission). . The test is whether an assignment of authority to the judicial branch presents an “incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.” Siebold, 100 U.S. at 398; see also Morrison v. Olson, 108 S.Ct. at 2610 (holding that special court’s appointment of independent prosecutor not incongruous); Hobson v. Hansen, 265 F.Supp. 902, 914 (D.D.C.1967) (“The limitation which is referred to in Siebold is not an affirmative requirement that the duty ... be related to the administration of justice. It is a negative requirement that the duty may not have ‘such incongruity’ with the judicial function as would void the power sought to be conferred.”) (upholding power of district court to appoint members of D.C. school board). I believe the Sentencing Commission exercises duties in “aid of” the judiciary’s primary function to decide “eases or controversies.” It does not itself decide “cases or controversies.”
That there are men and women serving on the Commission who are not Article III judges is entirely consistent with the above observation. In the performance of its duties, the Commission is not carrying out “case or controversy” duties; accordingly, its work is not limited to Article III judges. See Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59, 102 S.Ct. 2858, 2864-65, 73 L.Ed.2d 598 (1982) (plurality opinion) (“The judicial power of the United States must be exercised by courts having attributes prescribed in Art. III.”). The attributes referred to by the Court in Northern Pipeline are obviously judicial life tenure and salary guarantees. U.S. Const. art. III, § 1. Other judicial committees and organizations, including the Judicial Conferences and the Administrative Office of the United States Courts, have members or personnel who are not Article III judges. See, e.g., 28 U.S.C. § 601 (di*1278rector and deputy director of Administrative Office is appointed and subject to removal by the Supreme Court); id. § 332(3) (office of Circuit Executives). These non-Article III members of judicial committees have never been challenged.
The reason is clear. There is no requirement that the judiciary engage only in the strictly judicial functions of deciding “cases or controversies.” It may also exercise functions in aid of deciding “cases or controversies.” Issuing sentencing guidelines is such a function. A non-judicial agency within the judicial branch need not be staffed exclusively with Article III judges. The placement of the Commission in the judicial branch did not unduly expand the constitutional mandate of the judiciary.
ii. Article III Judges as Commissioners and the President’s Removal Power
The participation of three Article III judges is mandated by the Act. 28 U.S.C. § 991(a). Those federal judges who serve on the Commission need not resign their appointments. Id. § 992(e). Those circuit judges serving on the Commission (either active or senior) earn no additional salary. A district judge (either active or senior) serving on the Commission would earn the salary granted to a circuit judge. Id.8 Commissioners serve full time for the first six years after the sentencing guidelines go into effect. Id.; see also S.Rep. No. 225, 98th Cong., 1st Sess. 160, 1984 U.S. Code Cong. & Admin.News at 3343 (“Because of the complex nature of the functions of the Commission, and in order to avoid potential schedule conflicts for the members, the voting members’ positions are full-time for the first several years even if the member is a Federal judge.”).
The question, then, is whether Article III judges, sitting in their individual capacities, may serve on the Commission. There is no question, of course, that those judges do not sit as judges. See United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40, (1852); Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). First, one needs to consider whether there is a constitutional bar to an Article III judge sitting on an entity like the Sentencing Commission. For reasons elaborated below, I believe there is not. I then turn to consider whether the presence of three Article III judges either impairs the functions of the judiciary as a whole, or acts unduly to extend the power of those individuals.
(a). The Constitution, Cases, and Custom
The government argues that the text of the Constitution and an unbroken practice of 200 years’ duration establish that there is no prohibition against judges serving voluntarily, and in their personal capacities, in non-judicial roles within the executive branch. I agree that there is no bar to that practice. But I also believe that it is not so unchallenged a custom as automatically to validate, without further consideration, the service of judges on the Sentencing Commission.
The government argues that the strongest evidence of the Framers’ intent is that while the Constitution expressly forbids members of the Legislative Branch from simultaneously holding offices under the United States, art. I, § 6, cl. 2, there is no similar bar on judges. See Slonim, Extrajudicial Activities and the Principle of Separation of Powers, 49 Conn.B.J. 391, 396-401 (for original intent of Incompata-bility Clause). The government also argues that this omission is particularly instructive since an Incompatibility Clause applicable to the judiciary was specifically suggested at the Constitutional Convention, but was not adopted. 2 M. Farrand, Records of The Federal Convention of 1787, at 341-42 (1911); see also Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 Sup.Ct.Rev. 123, 129 *1279(noting that constitutional amendment to the same effect was proposed in 1800, and, yet again in 1804, to no avail). Nevertheless, the failure of this proposal, the reasons for which are now lost to history, cannot provide affirmative constitutional warrant for the exercise of extra-judicial duties. See United States v. Nixon, 418 U.S. 683, 705-06 n. 16, 94 S.Ct. 3090, 3106 n. 16, 41 L.Ed.2d 1039 (1974). Moreover, the Constitutional Convention’s rejection of proposals for a Council of Revision and a Council of State, upon which judges would have both served, is indicative of the opposite intent of the Framers. See 1 M. Farrand at 21 (for proposal on Council of Revision); 2 id. at 335 (for the proposal of the Council of State); id. at 75 (statement of Eldridge Gerry that both bodies would have established “an improper coalition between the Executive and Judiciary”); see also C.E. Hughes, The Supreme Court of the United States 27 (1928) (rejection of Council of Revision permitted the Supreme Court to withstand attack that could have been destructive of its authority); Lerner, The Supreme Court as Republican Schoolmaster, 1967 Sup.Ct.Rev. 127, 174-77 (Council of State and Council of Revision rejected for “sake of securing the proper separation of powers”).
The constitutional text and the records of the Constitutional Convention are, if anything, inconclusive on the question of whether judges can serve in their individual capacities on executive organs. The government also places extensive reliance on the decision in Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), which they cite for the proposition that judicial officers may voluntarily accept appointment as Commissioners to perform duties not judicial in nature. This reliance is misplaced. Haybum’s Case arose when Congress, in an act of March 23, 1792, 1 Stat. 243, required the circuit courts to examine the nature of wounds incurred by veterans in the Revolutionary War and to recommend a pension that would be “just.” If the Secretary of War suspected error, however, he could reverse the judge’s recommendations. Id. Five Justices of the Supreme Court, sitting as circuit justices, refused to make these pension determinations. Hayburn’s Case, 2 U.S. (2 Dall.) at 410 n. (a) (for the decisions of the circuit courts for the districts of New York, Pennsylvania, and North Carolina). A motion for mandamus was brought to the Supreme Court to compel the circuit judges to consider those claims. The case before the Supreme Court was, however, dismissed when Congress provided for an alternative way for the claims of pensioners to be considered. Id. at 409-10. Of the three circuit courts which passed on the issue, all agreed that it was improper for the judges, sitting as a court, to render recommendations concerning pensions. Id. at 410 n. (a). The circuits split, however, on the issue of whether the judges, sitting in their personal capacity, could act as Commissioners. Id. (circuit court for the district of New York (Jay, C.J., Cushing, J., Duane, D.J.) so ruling; circuit court for the district of North Carolina (Iredell, J., Sit-greaves, D.J.) confessing “grave doubts on this head”).
The issue of whether judges could act in their individual capacities as pension commissioners was, however, decided in an unpublished decision of the Supreme Court in United States v. Todd (U.S. Feb. 17, 1794), synopsized at 54 U.S. (13 How.) 51 (1851) (there was, apparently, no official reporter at the time the Todd decision was rendered and the Court in Ferreira provided “the substance of the decision ... in order that it may not be overlooked, if similar questions should hereafter arise”). The Court in Todd decided unanimously “that the power given in the Act of 1792 to the Circuit Court as a court, could not be construed to give it to the judges out of court as commissioners.” Id. at 52. This holding of the Supreme Court was noted in subsequent cases. See In re Sanborn, 148 U.S. 222, 224, 13 S.Ct. 577, 578, 37 L.Ed. 429 (1893); Florida v. Georgia, 58 U.S. (17 How.) 478, 505, 15 L.Ed. 181 (1854). Justice Iredell, who apparently convinced Chief Justice Jay and Justice Cushing of the correctness of his position that judges could not serve in this individual capacity, earlier wrote “[i]f therefore it appeared to me that this question could by any possibili*1280ty come before me as Judge ... I ought not to exercise the authority.” J. Iredell, Reasons for Acting as a Commissioner on the Invalid Act (Oct. 1792), quoted in Comment, 96 Yale L.J. at 1379 n. 124.
The clear implication is, therefore, that the possibility of judges serving as Commissioners in quasi-judicial roles was questioned by the Supreme Court as early as 1794.9 The government correctly notes, however, that there has been a long history of judges serving in executive capacities.10 Nevertheless, the practice of judges performing extra-judicial activities is not nearly as unbroken and systematic as the government might suggest. In fact, there have been many instances where the practice has come under intense criticism, not only by judges themselves but by other officials and commentators. See Yale Comment at 1382-83; Mason, Extra-Judicial Work for Judges: The Views of Chief Justice Stone, 67 Harv.L.Rev. 193 (1953); Comment, Separation of Powers and Judicial Service on Presidential Commissions, 53 U.Chi.L.Rev. 993, 998-99 (1986) (noting instances where judges have refused such service). One commentator has suggested that
The only significant difference between assigning a duty to a judge as an individual and as a member of the court is that as an individual she will be acting outside the judiciary. But by rendering constitutional otherwise unconstitutional behavior if performed in another branch of government, this principle would sacrifice both individual judicial independence and the interest of the judiciary as a whole in the control of its members.
Yale Comment at 1383-84. The lengthy custom that the government cites for permitting judges to sit in executive capacities has never been judicially approved. See In re President’s Commission on Organized Crime (“Scaduto”), 763 F.2d 1191, 1202 (11th Cir.1985) (Roney, J., concurring). It is, furthermore, questionable whether a long-standing custom can insulate a practice from constitutional challenge. See Chadha, 462 U.S. at 942 n. 13, 944, 103 S.Ct. at 2779 n. 13, 2780 (“[O]ur inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies_”); Youngstown Sheet & Tube, 343 U.S. at 610-11, 72 S.Ct. at 897 (Frankfurter, J., concurring) (for a practice to be deemed custom it must be “long pursued” and “never before questioned”); Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U.L.Rev. 109, 121 (1984) (relying on custom “equates what is with what ought to be in regards patterns of practice as principles of law”).
(b). Substantive Tests
Plainly, there is no rule that either accepts or precludes extra-judicial activities. The question becomes whether a judge who serves on an executive commission impairs the functions of the judicial branch or is an untoward expansion of power for the judiciary. The general principle that one branch may not act so as to impair the function of another branch has traditionally been the basis of the Supreme Court’s separation of powers analysis. United States v. Klein, 80 U.S. (13 Wall.) 128, 146-48, 20 L.Ed. 519 (1872). In Nixon v. Administrator of General Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the issue was “the extent to which [the challenged statute] prevents the [particular] Branch from accomplishing its consti*1281tutionally assigned functions.” Id. at 443, 97 S.Ct. at 2785; see also Morrison v. Olson, 108 S.Ct. at 2610-14. If a judicial function is, indeed, impaired then that impact must be justified by an overriding need to promote objectives within the constitutional authority of the acting Branch. Id. This concern that extra-judicial service not impair the functions of the judiciary is also reflected in the Code of Conduct for United States Judges, Canon 5, comment G, where it is provided that
A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of ... policy on matters other than the improvement of the law, the legal system, or the administration of justice, unless appointment of a judge is required by Act of Congress. A judge should not, in any event, accept such an appointment if the judge’s governmental duties would interfere with the performance of judicial duties or tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary.
Id. (adopted by the Judicial Conference of the United States).
I do not believe that participation by a judge on the Sentencing Commission seriously impairs any of the functions of the judicial branch. The defendants argue that the judiciary loses the services of three judges. There is no doubt in the Act and its legislative history that a judge’s duties on the Commission would come first. S.Rep. No. 225, 98th Cong. 1st Sess. 160 n. 385, 1984 U.S.Code & Admin.News 3343 n. 385 (“The judicial and other members may complete work on eases in progress if they are so far involved that it is impractical for the work to be turned over to another person. Of course, if the work was such that there was a potential conflict of interest or appearance of such a conflict, the work would have to be turned over to someone else.”); cf. Wheeler, 1973 Sup.Ct. Rev. at 142-43 (describing occasion when Chief Justice Jay declined to attend a meeting of The Sinking Fund Commission since it would interfere with his duties as circuit justice). The systemic impact on the judiciary of three judges not sitting is, nevertheless, minimal.11 The judges serving on the Commission made a voluntary choice to assume their duties as Commissioners. By allowing for the service of three judges, Congress authorized that choice.
Nor do I credit the argument that by giving the President the power to appoint judges as Commissioners, he has been given the power, in effect, to change the assignment of judges, a power that has been traditionally reserved to the judiciary itself. See F. Frankfurter & J. Landis, The Business of the Supreme Court 242 (1928) (“The judiciary, like most other political institutions, must be directed. But it must be self-directed.”); Shartel, Federal Judges —Appointment, Supervision and Removal — Some Possibilities Under the Constitution, 28 Mich.L.Rev. 870, 873 n. 8, 882 n. 31 (1930) (arguing that statute authorizing President to deprive a judge of his seniority in rank within the judiciary would be unconstitutional); cf. Chandler, 398 U.S. at 74 (suggesting that it is solely within the province of a circuit judicial council to divert cases from the docket of a district judge). After all, no judge is serving involuntarily on the Commission. None was nominated by the Judicial Conference, nor appointed by the President, without the individual’s consent.
Nor do I consider the President’s power to remove the Commissioners for cause, 28 U.S.C. § 991(a), to interfere with the judiciary’s proper functioning. The majority opinion relies on language in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), wherein the Supreme Court held that Congress could not retain the power to remove the Comptroller General if that officer was performing executive functions under the Gramm-Rudman-Hollings Deficit Reduction measure. The majority argues by analogy that the President cannot remove members of the Com*1282mission if they are performing judicial functions. The fact is, however, that they are not performing judicial functions within the “case or controversy” limitation of the Constitution. That the President can remove individuals as Commissioners in no way affects the performance of their judicial duties, because they can never have their salaries diminished or be removed as judges, save by impeachment. The President is free to remove other officers of the United States whose functions, although in aid of the judiciary, are not constitutionally assigned to it. See McAllister v. United States, 141 U.S. 174, 185, 11 S.Ct. 949, 958, 35 L.Ed. 693 (1891) (President may remove for good cause judges who serve on article I courts). The majority seems to forget that the members of the Commission obviously must be accountable to some branch. For them to be free from removal on any ground by any official in any branch of the government, other than through impeachment, would itself run afoul of the appointments clause. See U.S. Const. art. II, § 2, cl. 2; Myers, 272 U.S. at 161, 47 S.Ct. at 40 (“[t]he power to remove ... is an incident of the power to appoint.”). While some argue that it may have been preferable to vest removal power in a judicial officer, such as the Chief Justice, it was not a violation of separation of powers principles to allow the President the right of removing Commissioners with cause. See Wiener v. United States, 357 U.S. 349, 353, 78 S.Ct. 1275, 1278, 2 L.Ed.2d 1377 (1958) (permitting the President to remove for cause members of the War Claims Commission).
Finally, there is no danger that service on the Sentencing Commission by judges will threaten judicial impartiality. Cf. Scaduto, 763 F.2d at 1196-97 (expressing fear that judges might favor particular government action recommended by a commission on which they or other federal judges serve). It is undoubtably true that in construing or applying the guidelines, federal judges are unlikely to be impressed, or even minimally affected, by the fact that other judges serve on the Sentencing Commission. See United States v. Chambless, 680 F.Supp. 793, 800 (E.D.La.1988) (dismissing the idea of undue influence as “patently meritless”).12
Even if a court were to find that the mandatory assignment of three Article III judges to the Commission impairs the functions of the judiciary, it would also have to consider whether that impact is justified by an overriding need of the legislature to promote its objectives. Nixon, 433 U.S. at 443, 97 S.Ct. at 2790. Obviously, the purpose of placing judges on the Commission was to add substantial expertise to its very important work. See also Duplantier v. United States, 606 F.2d 654, 668 (5th Cir.1979) (in challenge to requirement that federal judges disclose their personal financial interests the court held that the “intrusion upon the constitutionally assigned functions of the judiciary ... is justified by the promotion of important [congressional] objectives”), cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981). This was an important congressional objective.
Congress had a difficult choice to make when it considered the placement of the Commission. The legislative history reveals that this allocation was seriously debated by the Congress. The Senate Judiciary Committee concluded that the Commission “would be in the judicial branch.” S.Rep. No. 225, 98th Cong., 1st Sess. 63, reprinted at 1984 U.S.Code Cong. & Admin.News 3182, 3246. The Report also stated that the Committee had acted to ensure the role of all three Branches, “rather than only the Judicial Branch,” in the selection of the members of the Sentencing Commission, and it then observed that the bill “does assure the judiciary a role in the selection of the members and does place the Commission in the judicial *1283branch.” Id. at 64,1984 U.S.Code Cong. & Admin.News at 3247. The strongest statement of congressional intent was made later in the Report: “Placement of the Commission in the judicial branch is based upon the Committee’s strong feeling that, even under this legislation, sentencing should remain primarily a judicial function.” Id. at 159, 1984 U.S.Code Cong. & Admin. News at 3342; see also id. at 163, 1984 U.S.Code Cong. & Admin.News at 3346 (where the Committee stated that it was appropriate for federal judges to serve on the Commission without having to resign their judicial positions, because “the judge will remain in the judicial branch and will be engaged in activities closely related to traditional judicial activities”).13
After examining all of the excellently presented arguments made challenging the constitutionality of the sentencing guidelines, I conclude that the Congress acted within its power in creating a Sentencing Commission that included three judges among its members and placing that Commission within the judicial branch. I do not express a view on the wisdom of every detail of Congress’ judgment. I am concerned here only with constitutional power: from whence it is derived, how it is allocated, and the manner it is exercised. The difficulty faced by Congress in addressing the real problems of unacceptable sentencing disparities is well-documented. It is unthinkable that the Constitution forbids a rational plan to reduce such disparities.
D. Severability of “Good Time” Credit Provisions
I also dissent from the majority’s decision that the “good time” credit provisions, provided by the Sentencing Reform Act, 18 U.S.C. § 3624(b), cannot be severed and are likewise invalid. I believe that even if the guideline provisions are invalid, they can be severed from the “good time” provisions of the Act.
Prior to November 1, 1987, the effective date of the guidelines, 18 U.S.C. §§ 4161, 4162, provided a complex system of meritorious and industrial “good time” credits. Five days a month meritorious “good time” could be awarded prisoners whose sentences ranged from six months to a year, while ten days a month could be awarded to prisoners sentenced to ten years or more. In addition, industrial “good time” could be awarded up to three days a month for the first year, and five days a month thereafter. The Sentencing Reform Act repealed these provisions and replaced them with a new “good time” section, which provided that no “good time” credit for sentences of one year or less could be awarded. 18 U.S.C. § 3624(b). Gubiensio-Ortiz, who was sentenced to a six-month term, desires that his “good time” credits be restored to him. This court was asked whether, in the absence of a general sever-ability provision in the Act, Congress intended that its changes to the “good time” credit system could be carried out even if the mandate of the Sentencing Commission and its guidelines were subsequently found to be unconstitutional. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1481, 9 L.Ed.2d 661 (1987) (the “relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress”) (original emphasis); Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (plurality) (whether “an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent”).14
At the time the Sentencing Reform Act was adopted it seems clear that Congress would not have enacted the new “good *1284time” provisions without the sentencing guidelines. The statute provides that the abolition of the new “good time” rules will apply only to those sentences that are imposed under the sentencing guidelines system. 18 U.S.C. §§ 3551, 3558 & 3624. Moreover, the effective dates of the various provisions of the Act confirm that Congress intended that the guidelines, the abolition of parole, and the new “good time” rules would operate as a package. The contemporary legislative history makes clear that this package was designed to ensure that “the sentencing guidelines system will not replace the current law provisions relating to the imposition of sentence, the determination of a prison release date, and the calculation of good time allowances” until the guidelines “replace the existing sentencing system.” S.Rep. 225, 98th Cong. 1st Sess. 188-89, reprinted at 1984 U.S.Code Cong. & Admin.News 3371-72. Accordingly, the Act retained parole and “good time” provisions “to deal with sentences imposed under current sentencing practices.” Id. It seems clear that at the time the Act was adopted, Congress did not contemplate that the new “good time” provisions would enter into force until the sentencing guidelines did.
Nevertheless, the congressional intent on this issue later changed. As originally enacted, 28 U.S.C. § 994 made no distinction as to guidelines for petty offenses, and thus, the Sentencing Commission had promulgated guidelines for many of these. However, it quickly became apparent that it made little sense to have guidelines for petty offenses where the guidelines range was the same as the maximum range, that is, six months or less. Accordingly, on December 7, 1987, 37 days after the guidelines became effective, the President signed the Sentencing Act of 1987, Pub.L. No. 182, 100th Cong., 1st Sess., 101 Stat. 1266, 1269. Section 16 of that Act amended 28 U.S.C. § 994(w) and 18 U.S.C. § 3553(b), to make clear that Congress did not require guidelines for petty offenses. The effect of these amendments was to authorize the Commission to promulgate no guidelines for petty offenses, and to permit the courts to impose sentences for non-guideline petty offenses without regard to the guidelines for similar offenses. Accordingly, the Sentencing Commission amended Guideline § 2L1.2, which applies to illegal entry into the United States in violation of 8 U.S.C. § 1325, the crime for which Gubiensio-Ortiz was convicted. The amendment provided that “first offenses under [this section] are petty offenses for which no guideline has been promulgated.”
I believe the December 1987 amendments enacted by Congress were intended to make clear that the Sentencing Commission was free to sever or exempt petty offenses, such as petitioner’s, from the guidelines. Congress has thus expressed its intent that sentences in petty offense eases need have nothing to do with the new guidelines. It seems clear that Congress would still have applied the new “good time” rules to petty offenses because it has already contemplated that the new “good time” rules will be applied to petty offenses which now fall outside of the guidelines. I would credit Congress’ manifestation of changed intent, and rule that the “good time” provisions of the Sentencing Reform Act, which deny any credits to a prisoner serving less than six months, can be severed from that part of the Act creating the Commission and the guidelines.
CONCLUSIONS
The Sentencing Reform Act does not offend the Constitution. No branch of government has been negatively affected by the allocation of power made by it. I would hold that the Sentencing Commission was constitutionally charged, staffed, and placed in the judicial branch. Its guidelines are constitutional. Even if the guidelines are invalid, the “good time” provisions can be severed.
It has been noted recently that some separation of powers cases appear before our courts as sheep and some appear as wolves. Morrison v. Olson, 108 S.Ct. at 2622 (Scalia, J., dissenting). This case can be characterized as a wolf. Unfortunately, the majority treated it as a sheep: gingerly, without cunning, and without foresight. As a result, it devoured a part of our separation of powers jurisprudence. In an *1285effort to avoid that unseemly fate, I respectfully dissent.
. I concur with the majority’s decision that we have jurisdiction over both of these appeals.
. The provision that the guidelines remain before Congress for 180 days before they take effect, 28 U.S.C. § 994(p), does not mean that they are immune from nondelegability analysis. Congressional oversight does not turn administratively promulgated rules into legislation or cure a delegation that is too broad. See Consumer Energy Council v. FERC, 673 F.2d 425, 467 & n. 172 (D.C.Cir.1982), aff’d sub. nom. Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 1403 (1983). It is also irrelevant for nondelegation analysis that the Commission is assigned to a particular branch of government. See National Cable Television Ass’n v. United States, 415 U.S. 336, 341-42, 94 S.Ct. 1146, 1149-50, 39 L.Ed.2d 370 (1974). The question of the Commission’s placement in the judiciary is reserved for the separation of powers discussion below.
. The government and the defendants agree that the Commission was improperly placed in the judicial branch. The Sentencing Commission, appearing amicus curiae, vigorously disputes this claim. Counsel for the government also argued that this court, if it found the Commission improperly placed in the judicial branch, could relocate it to the executive branch without recourse to further congressional action. I agree with the majority opinion that were the Commission unconstitutional, a court could not, without congressional intervention, transfer it to another branch.
. See O'Donoghue v. United States, 289 U.S. 516, 545, 53 S.Ct. 740, 748, 77 L.Ed. 1356 (1933) ("Subject to the guaranties of personal liberties in the amendments and in the original Constitution” Congress had power to vest authority in District of Columbia courts).
. Such provisions include the appointments clause, art. II, § 2, cl. 2; Morrison v. Olson, — U.S. -, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (rejecting argument that this provision precluded appointment of independent prosecutor under Ethics in Government Act); the presentment clause, art. I, § 7, cl. 2; Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (ruling legislature veto unconstitutional), and the bill of attainder and ex post facto clause, art. I, § 9, cl. 3; Buckley v. Valleo, 424 U.S. 1 (1976).
. Having the laws executed by one authority was deemed by the Framers to be "a leading character in the definition of good government.” The Federalist No. 70, at 423-24 (Hamilton) (”[t]his unity may be destroyed ... by vesting it ostensibly in one man, subject in whole or in part to the control and cooperation of others”); see also Sierra Club v. Costle, 657 F.2d 298, 405 (D.C.Cir.1981).
. The majority confidently cites Miller v. Florida, — U.S. - 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), for the proposition that sentencing guidelines are more substantive than procedural. Id. at 2453. Í find that case inapposite, even though Florida’s sentencing guidelines, at issue in that case, id. at 2448-49, are markedly similar to the federal guidelines. The issue in that case was, however, whether petitioner was subject to ex post facto legislation by being sentenced under Florida’s new guidelines which were adopted after he committed his crime. The Supreme Court ruled that this was a violation of the ex post facto clause. Id. at 2454; see also U.S. Const. art. I, § 10, cl. 1. Florida's new sentencing guidelines substantively altered Miller's protected expectations. But that is not the problem in our case. Nor can it ever be an issue since the federal guidelines apply only to those crimes committed after their effective date, November 1, 1987. In other words, ours is not a case where the congressional allocation of power conflicted with a contrary constitutional allocation of power, such as one barring ex post facto laws.
. There has been some dispute, in the case of a district judge serving on the Commission, whether the additional compensation would be expressed as a salary increase or as a stipend. The Department of Justice introduced legislation to clarify this matter in 1986. See Yale Comment, 96 Yale L.J. at 1366 n. 33; see also 22 Op.Att’y Gen. 184 (1898) (judges can receive stipend for extrajudicial service). Judge Wilkins, the Commission’s chairman, was a district judge at the time of his appointment. He was later elevated to the court of appeals.
. To the extent the government relies on Fer-reira, 54 U.S. at 50-51, that case does not treat the issue of whether a judge may act in the personal capacity of a commissioner. It only decides that no appeal may be taken from a decision issued by a commissioner. Id. at 47.
. Some of the judges who participated in Hay-bum’s Case and the Todd decision were among those so active. John Jay served simultaneously as the first Chief Justice and Ambassador to England in 1794. A successor, Chief Justice Oliver Ellsworth was Minister to France during his term on the Court. John Marshall for a brief period was both Chief Justice and Secretary of State. See In re President’s Commission on Organized Crime ("Scarfo"), 783 F.2d 370, 377 (3d Cir.1986) (for additional instances of judges serving in executive roles); Wheeler, 1973 Sup.Ct.Rev. at 132-35 (same).
. Currently, only two of the three judges serving on the Commission are active judges. This particular form of impairment could be completely discounted if all of the judges serving on the Commission were senior status.
. The majority seems to place some emphasis on the problem of judges having to recuse themselves in criminal cases involving the guidelines, and that there will be an appearance of impropriety of judges reviewing the work of other judges. Arnold, 678 F.Supp. at 1472. This fear of wholesale recusals is unfounded. Just because, for example, judges participated in the drafting of the Federal Rules of Procedure did not mean that they would be disqualified from deciding cases challenging or construing those Rules. See Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444, 66 S.Ct. 242, 246, 90 L.Ed. 185 (1946).
. It should also be noted, however, that Congress rejected proposals to place authority to promulgate guidelines under the complete control of the judiciary. See S. 1182, 98th Cong., 1st Sess. (1983) (proposing committee on sentencing guidelines within Judicial Conference of United States, whose members would be appointed and removable by Judicial Conference.)
. It should be emphasized that the only question on appeal presented here is whether the “good time” provisions of the Sentencing Reform Act are severable. The Act also abolished parole. Nevertheless, whether the parole provisions of the Act are severable should not be at issue before this court.