dissenting:
Congress, governmental agencies, and federal courts have struggled for nearly two decades to define the constitutional limits on affirmative efforts to improve access of minority groups to the mainstream of American life. This case involves a unique type of governmental access program not heretofore passed on by the Supreme Court. The majority’s invalidation of the Commission’s ten-year old minority distress sale program in my view impermis-sibly overturns a considered congressional judgment as to the appropriate means of assuring diversity of viewpoint over the national airwaves. In casting off a thoughtfully conceived and monitored program aimed at attaining a legitimate con-gressionally mandated end, the majority has too rigidly applied Supreme Court affirmative action guidelines designed for other types of programs, ignored firm precedents in this circuit, and failed to credit the explicit intent of Congress.
I. The Constitutional Status of Government-Sponsored Minority PREFERENCE PROGRAMS
The United States Supreme Court has issued four decisions concerning the constitutional limitations on voluntary government-sponsored affirmative action programs. See Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); City of Richmond v. J.A. Croson Co., — U.S. -, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).1 A majority of the Court has squarely held that the remediation of prior racial discrimination is a sufficiently compelling interest to justify the use of racial preferences. Justice Powell’s opinion in Bakke also recognized as compelling the state’s interest *935in promoting diversity within the context of higher education.
Within this circuit, moreover, a third interest has been recognized as sufficiently compelling to justify the use of racial preferences. In West Michigan Broadcasting Co. v. FCC, 735 F.2d 601 (D.C.Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985), this Court upheld the use of race in comparative licensing procedures as part of the Commission’s effort “to obtain a diverse mix of broadcasters.” 735 F.2d at 613. That decision, of course, is binding precedent except insofar as it is called into question by subsequent decisions of the Supreme Court.2 In my view, the identification of broadcasting diversity as a compelling government interest is entirely consonant with Supreme Court precedent. The Court has never limited the diversity rationale to the makeup of student bodies. Nor has it held that there exist only two governmental interests sufficiently compelling to justify race-conscious affirmative action. Indeed, Justice Powell’s landmark opinion in Bakke itself notes three separate state interests in a public university medical school that, if supported by an adequate record, could be considered “compelling”: the elimination of identified discrimination, the improvement of public health services, and the promotion of student body diversity. 438 U.S. at 307-14, 98 S.Ct. at 2757-60. Justice O’Connor has also provided a perspective wider than the panel’s for our review of this case:
[Although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently “compelling,” at least in the context of higher education, to support the use of racial considerations in furthering that interest ... And certainly nothing the Court has said today necessarily forecloses the possibility that the Court will find other governmental interests which have been relied upon in the lower courts but which have not been passed on here to be sufficiently “important” or “compelling” to sustain the use of affirmative action policies.
Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O’Connor, J., concurring) (citations omitted) (emphasis added).
The Supreme Court’s recent decision in Croson imposed stringent requirements on state and local governments seeking to institute affirmative action programs for the purpose of providing increased economic opportunities for minorities. Croson, however, differs from the present case in two fundamental respects. First, Croson involved the initiative of a local governmental body, while continued enforcement of the distress sale policy has been mandated by an Act of Congress. Second, the distress sale policy was intended by Congress to enhance public access to diverse broadcast programming — a goal that is quite different from that which the Court addressed in Croson. We must therefore bear in mind that the limitations announced in that decision cannot be applied mechanically to the present controversy. Rather, we must carefully analyze the objective the distress sale policy serves, and the constitutional fit of the chosen means to that end, bearing in mind Congress’ repeated authorization and endorsement of this program’s specific method and goal.3
*936II. Development op the Distress Sale Polioy
In 1965, the FCC4 publicly proclaimed its commitment to the concept of diversification in ownership and control of the media on the premise that “diversification of control is a public good in a free society.” Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965) [hereinafter 1965 Policy Statement ]. The Supreme Court has upheld the FCC’s ownership diversification policies as consistent with the public interest standard and the first amendment goal of promoting diversity of viewpoint:
It was not inconsistent with [the Communications Act of 1934,] therefore, for the Commission to conclude that the maximum benefit to the “public interest” would follow from allocation of broadcast licenses so as to promote diversification of the mass media as a whole.
... “The ‘public interest’ standard necessarily invites reference to first amendment principles” ... and, in particular, to the First Amendment goal of achieving “the widest possible dissemination of information from diverse and antagonistic sources.”
FCC v. National Citizens Committee for Broadcasting [NCCB], 436 U.S. 775, 795, 98 S.Ct. 2096, 2112, 56 L.Ed.2d 697 (1978) (citations omitted).
The Commission found achievement of its goal of viewpoint diversity through ownership diversity hampered by the dearth of minority broadcasters. As a result of the “exhaustively documented” un-derrepresentation in the ownership of mass media broadcast facilities, West Michigan, 735 F.2d at 603 n. 5, the FCC expanded its diversification policy to encompass a positive effort at attaining minority representation in broadcasting:
Full minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming. In addition, an increase in ownership by minorities will inevitably enhance the diversity of control of a limited resource, the spectrum.
Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 981 (1978) [hereinafter 1978 Policy Statement].5 The FCC concluded that “[a]dequate representation of minority viewpoints in programming ... enhances the diversified programming which is a key objective not only of the Communications Act of 1934 but also of the First Amendment.” Id.
In implementing its policy of diversity of viewpoint through diversity of ownership, the FCC designed the distress sale program as part of a broader strategy for dealing with the “extreme disparity between the representation of minorities in our population and in the broadcasting industry.” 1978 Policy Statement at 982.6 *937It added the distress sale policy only after other approaches to increasing minority representation in programming, such as equal employment opportunity rules and ascertainment policies, had not achieved significant results. Id.
Administrative law judges had previously been instructed to award a competitive preference to minority license applicants in comparative hearings if the minority owners would actively participate in running the station. Several pending license applications involving a significant minority ownership interest had been expedited. Minority underrepresentation persisted, however, and the FCC’s Minority Ownership Taskforce, after careful study, identified the cause in several structural impediments to minority access to broadcasting facilities.
The Minority Ownership Taskforce concluded that the most significant barriers to minority ownership were lack of knowledge of stations up for sale, attributable largely to an “old-boy network” monopoly on such information, and the unavailability of adequate financing for potential minority owners. See Minority Ownership Taskforce Report, supra, at 9, 11. Lack of broadcasting experience among potential minority applicants, an inevitable concomitant of persistent underrepresentation in the industry, also blocked their access. As long as these formidable impediments to entry existed, the Taskforce felt that the market would not self-correct so as to afford adequate opportunities for minority ownership.
Responding to the Taskforce Report, the FCC decided that it must deal directly with the identified entry barriers — lack of information and financing. It announced policies to grant capital gains tax deferral certificates to those selling to minority firms7 and to authorize distress sales to qualified minority purchasers. The FCC designed the distress sale policy to create an incentive for minority-controlled entities to enter the broadcasting field.8 Pursuant to the policy, the licensee designated for a revocation hearing or one whose renewal application might be in jeopardy on basic qualification issues could, instead of proceeding normally through the hearing process, elect to sell its station to a minority-controlled applicant at a “distress price.”9 Through the distress sale policy, a qualified minority *938applicant would obtain a special opportunity to buy a station at a reduced price.
On several occasions Congress has endorsed the FCC’s efforts to diversify media control through programs to encourage minority ownership and control.10 For example, amending the Communications Act in 1982 to authorize the FCC to employ lotteries in lieu of comparative license hearings, Congress specifically provided for special media ownership and minority ownership preferences in order to encourage diverse voices on the airwaves. “The underlying policy objective of these preferences is to promote the diversification of media ownership and consequent diversification of programming content. This diversity principle is grounded in the First Amendment.” H.R.Conf.Rep. No. 765, 97th Cong., 2d Sess. 40 (1982). Specifically citing the FCC’s 1978 Policy Statement, in which the FCC announced the minority distress sale policy, the Conference Committee concluded that:
[An] important factor in diversifying the media of mass communications is promoting ownership by racial and ethnic minorities —groups that traditionally have been extremely underrepresented in the ownership of telecommunications facilities and media properties. The policy of encouraging diversity of information sources is best served by not only awarding preferences based on the number of properties already owned, but also by assuring that minority and ethnic groups that have been unable to acquire any significant degree of media ownership are provided an increased opportunity to do so.
Id. at 43 (emphasis added).
Congress again reaffirmed its strong support for the FCC’s programs to foster minority ownership in 1987. In its appropriations law for 1988, Congress prohibited repeal or reconsideration of the distress sale policy and two other minority preference programs. Pub.L. No. 100-202, 101 Stat. 1329 (1987).11 See also H.R.Conf. Rep. 498, 100th Cong., 1st Sess. 504 (1987). The Senate Appropriations Committee, which reported out this provision, explained:
The Congress has expressed its support for such policies in the past and has found that promoting diversity of ownership of broadcast properties satisfies important public policy goals. Diversity of ownership results in diversity of programming and improved service to minority and women audiences.
S.Rep. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added). The discourse at the hearings with then-FCC Chairman Fowler made clear the Committee’s view that “the Commission [has] a responsibility to make sure that [the airwaves] are used to reflect the diversity of views and the diversity of background and interests in our country.” Departments of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations for Fiscal Year 1988: Hearings on H.R. 2763 Before a Subcommittee of the Senate Committee on Appropriations, 100th Cong., 1st Sess. 17 (1987) (statement of Senator Lautenberg) [hereinafter 1987 Hearings\
III. Analysis
A. Scope of Review
Whatever its status at prior stages of this litigation, the distress sale program is today a deliberately chosen congressional policy, embodied in legislation passed by the House and Senate and signed by the President. In my view, the distress sale policy is a constitutional means of pursuing Congress’ objective: ensuring greater diversity in programming. As Judge Silber-man recognizes, “the breadth of discretion in the choice of remedies may vary with the nature and authority of a governmental *939body.” Fullilove, 448 U.S. at 515-16 n. 14, 14, 100 S.Ct. at 2798-94 n. 14 (Powell, J., concurring).12 See Silberman op. at 912. It is clear in my view that the distress sale policy remains in place — and this controversy remains before our court — as a direct result of legislation enacted by Congress. Although Judge Silberman suggests that this legislation need not be given the respect ordinarily owed to Acts of Congress, his position is unconvincing.13
Noting that the 1987 statute forbade the Commission to reexamine the distress sale policy, and thus precluded compliance with our previous remand order, Judge Silber-man suggests that the statute impermissi-bly constricted the jurisdiction of the court of appeals. See Silberman op. at 925 n. 39. The statute, however, says nothing about jurisdiction: it simply directs the agency to apply a particular rule of law to disputes before it. Congress plainly has the power to establish substantive rules to be applied in agency adjudications; moreover, Congress may insist that a new rule be applied to a pending dispute. See Multi-State Communications, Inc. v. FCC, 728 F.2d 1519 (D.C.Cir.1984).14 This principle is simply the application to administrative agencies of the more general rule that an adjudicative body “is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). See also Thompson v. Sawyer, 678 F.2d 257, 279 (D.C.Cir.1982). The fact that the statute superseded this court’s remand order is of no consequence: it is clearly within the power of Congress to overrule judicial decisions, at least within the statutory sphere, and this “nullification” of judicial precedent does not constitute an infringement on the court’s jurisdiction.
Nor did the statutory change work any unjust surprise on the parties to this case. The 1987 statute did change the applicable law, since it eliminated the agency’s prior discretion to abrogate or modify the distress sale policy. The statute did not, however, require that the rights of Shurberg or Astroline be adjudicated on the basis of standards which were unforeseen at the time this dispute began. To the contrary, the law by its terms required only that the agency continue to apply its preexisting rules. It therefore seems clear to me that this is not a case in which the application of a new statute to a pending proceeding will create “manifest injustice” to the litigants.
*940Judge Silberman also argues that Congress did not devote sufficient attention to the problem, and that the legislative history fails to reveal an adequate factual basis for the legislature’s action. Fullilove, however, quite clearly rejected the notion that courts may inquire into the sufficiency of congressional deliberations. As Justice Stevens’ dissent in that case pointed out, the set-aside provisions were mentioned in neither the House nor the Senate committee reports; on the floor of Congress “only a handful of legislators spoke and there was virtually no debate.” Fullilove, 448 U.S. at 549-50 and n.25, 100 S.Ct. at 2811-12 and n.25 (Stevens, J., dissenting).15 Those Justices who voted to uphold the program did not contest Justice Stevens’ assertion that congressional debate had been scanty. Chief Justice Burger’s opinion noted that “Congress, of course, may legislate without compiling the kind of ‘record’ appropriate with respect to judicial or administrative proceedings.” Id. at 478, 100 S.Ct. at 2774. See also id. at 502-03, 100 S.Ct. at 2787 (Powell, J., concurring) (“The creation of national rules for the governance of our society simply does not entail the same concept of recordmaking that is appropriate to a judicial or administrative proceeding.... After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area”); id. at 520 n.4, 100 S.Ct. at 2796 n.4 (Marshall, J., concurring in judgment). The clear thrust of Fullilove is that evidence of congressional deliberation (such as committee reports or lengthy floor debate) is not required. Rather, deliberativeness must be presumed so long as Congress had before it sufficient information for the formation of a considered opinion.16 The distress sale policy, of course, had been in place for over nine years when Congress acted to preserve it: it can hardly be doubted that Congress had access to a sufficient store of information for the rendering of a considered judgment.17 Given this factual background, my colleague’s refusal to regard the statute as a considered congressional choice is simply judicial presumptiveness. Moreover, it runs directly counter to circuit precedent. In National Treasury Employees Union v. Devine, 733 F.2d 114 (D.C.Cir.1984), we considered an appropriations measure which provided that no federal funds could be expended for the implementation of certain Office of Personnel Management regulations. In holding the regulations to be barred, we stated:
It is true that courts must act cautiously in interpreting appropriations measures, to avoid inferring substantive effects that were never intended. However, the Supreme Court has never suggested that this principle of statutory construction should be transformed into a rigid constitutional mandate, requiring courts to make a qualitative determination whether each house has given a measure sufficient consideration before voting in favor of it. Such an intrusion into Congress’ legislative deliberations would pose serious separation-of-powers problems, and neither the language nor logic of the Constitution compels such an inquiry.
733 F.2d at 117 n. 8 (emphasis in original) (citation omitted).
*941Since the distress sale program was mandated by a considered congressional policy choice, I believe that the Supreme Court’s recent decision in Croson is of limited relevance to the present dispute. Of the six Justices who comprised the Croson majority, four drew an express distinction between the expansive powers of Congress and the more limited powers of state and local governments. See 109 S.Ct. at 719 (Opinion of O’Connor, J.) (“That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate”); id. at 736 (Sca-lia, J., concurring) (“[I]t is one thing to permit racially based conduct by the Federal Government — whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U.S. Const., Arndt. 14, § 5 — and quite another to permit it by the precise entities against whose conduct in matters of race that Amendment was specifically directed, see Amdt. 14, § 1”). That distinction was hardly a new innovation: Fullilove stressed the distinctions between different public institutions and emphasized that Congress may exercise remedial powers of a scope that would be denied to any other state actor. See also Bakke, 438 U.S. at 309, 98 S.Ct. at 2758 (Opinion of Powell, J.) (“isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria”); cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976).
B. The Distress Sale Policy as a Means of Increasing Diversity in Programming
1. The Compelling Nature of the State Interest
To this point the Supreme Court has identified two governmental interests that may, under appropriate circumstances, be sufficiently compelling to justify the use of racial preferences: remedying past discrimination and enhancing diversity in higher education. Moreover, the governmental interest asserted here — the desire to ensure that television viewers have access to a diverse range of programming — seems closely analogous to the educational interest with Justice Powell found sufficient in Bakke.
The question presented here — whether the government’s interest in educational diversity is closely analogous to its interest in preserving public access to a variety of broadcast fare — is admittedly a question on which reasonable people may differ. And it is a question to which the Supreme Co ,.rt has thus far failed to provide a definitive answer. It is not, however, an open question within this circuit. This court expressly approved the analogy in West Michigan, stating that “[j]ust as the FCC rests its goal of attaining diverse programming on the First Amendment value ‘that the widest possible dissemination of information is essential to the welfare of the public,’ Justice Powell recognized that a state university could find support in the First Amendment for the goal of attaining a diverse student body_” 735 F.2d at 614 (citation omitted). The law within this circuit is that broadcaster diversity, like diversity within public institutions of higher education, is a sufficiently compelling governmental interest to justify the use of racial preferences. This precedent may legitimately be disregarded only if it has been undermined by subsequent decisions of the Supreme Court.
Judge Silberman contends that Wygant undermines the authority of West Michigan, since in his view the Wygant Court rejected the “role model” theory offered by the Jackson Board of Education. See Sil-berman op. at 922. In fact, however, only four Justices in Wygant rejected the role model theory; Justice White’s concurrence focused exclusively on the fact that the plan involved layoffs.18 One of the four *942also cautioned that “[t]he goal of providing ‘role models’ discussed by the courts below should not be confused with the very different goal of promoting racial diversity among the faculty.” 476 U.S. at 288 n.*, 106 S.Ct. at 1854 n.* (Opinion of O’Connor, J.). The same distinction is central here. The distress sale policy rests on the assumption that viewers and listeners of every race will benefit from access to a broader range of broadcast fare, not that consumers will inevitably gravitate towards programming disseminated by licensees of their own race.
Judge Silberman also suggests that the Court in Croson rejected the pursuit of diversity as a permissible justification for affirmative action programs. My colleague relies heavily on the Croson plurality’s insistence that racial preferences should be “strictly reserved for remedial settings.” 109 S.Ct. at 721 (Opinion of O’Connor, J.);19 see Silberman op. at 920. Of course, the underrepresentation of minorities within the broadcasting industry, and the resulting lack of diversity in programming, is the result of past racial discrimination. The effort to promote diversity is thus, in an important sense, an effort to remedy the effects of past discrimination. To say that diversity is the goal of the distress sale policy is simply to say that the intended beneficiary is the public (who will profit from exposure to a wider range of programming) rather than the minority broadcaster himself (who will gain increased economic opportunities). Judge Silberman’s premise is that a program can be deemed “remedial” (as that term is used in Croson) only if its beneficiaries are themselves past victims of discrimination. Though that is not an implausible reading of Justice O’Connor’s language,20 I do not believe that her Croson opinion compels the invalidation of diversity-oriented affirmative action programs. Given Justice O’Connor’s apparent approval of Justice Powell’s diversity rationale in her Wygant concurrence, see 476 U.S. at 286, 106 S.Ct. at 1853,1 am hesitant to conclude, based on a brief, ambiguous reference in a case involving a quite different plan, that she has now abandoned that rationale entirely.21
Even if I read the Croson plurality as eliminating the diversity rationale as a permissible justification for state and local affirmative action programs, I would not conclude that the same restrictions should apply to Congress. The plurality’s recognition of the broad remedial powers of Congress — in particular, its recognition that “Congress may identify and redress the effects of society-wide discrimination,” see 109 S.Ct. at 719 — militates against any easy transference of the limitations deemed appropriate for state and local entities. Because the Croson Court did not directly address the permissibility of the diversity rationale, and because that case dealt with the remedial powers of a local government rather than with the authority of Congress, I do not believe that Croson requires the rejection of the federal interest asserted here.
Certainly the state lacks the power to exercise day-to-day control over the pro*943gramming decisions of private broadcasters. But the federal supervisory power over broadcasting is nevertheless quite extensive — far greater, in fact, than its power over the construction industry. A federal agency, pursuant to the directives of Congress, has the sole authority to determine who may and who may not operate a broadcast facility. And precisely because the broadcaster will enjoy relatively unfettered freedom once his station commences operations, the government has both the right and the duty to exercise care in the initial decision to award a license. I think it is settled law that in choosing licensees the state may seek to further “the First Amendment goal of achieving ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” FCC v. National Citizens Committee for Broadcasting (NCCB), 436 U.S. 775, 795, 98 S.Ct. 2096, 2112, 56 L.Ed.2d 697 (1978) (quoting Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945)). See also FCC v. League of Women Voters of California, 468 U.S. 364, 377, 104 S.Ct. 3106, 3116, 82 L.Ed.2d 278 (1984) (“Congress may ... seek to assure that the public receives through this medium a balanced presentation on issues of public importance that otherwise might not be addressed”); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Certainly the Constitution places limits on the methods which Congress may use to enhance diversity within the broadcasting media. But the legitimacy of the government’s interest is undeniable.
Of course, to say that Congress has a legitimate interest in enhancing broadcast diversity does not mean, ipso facto, that the state’s interest is sufficiently compelling to justify the use of a racial preference. And I recognize that Justice Powell’s Bakke opinion focused on the distinctive characteristics of the academic environment. For those who are fortunate enough to attend a college or university, interaction with fellow students may be a principal means of access to information about the world.22 But those who lack the background or the resources to pursue a university education may be largely dependent upon the broadcast media to expose them to influences and ideas beyond their immediate sphere of experience. The state’s interest in ensuring that all its people have access to a wide and varied range of broadcast options seems to me to be every bit as compelling as its interest in creating a diverse student body within a public university.23
Even if this were an open question within the circuit, I would therefore conclude that the promotion of broadcast diversity is a compelling governmental interest, an interest closely analogous to the enhancement of diversity within the educational institutions operated by the state. For good or ill, a large portion of the American polity relies upon the broadcast media as a principal source of information about the world in which they live. Given the governmental role in selecting broadcast licensees, I believe that the state bears a responsibility *944to allocate franchises in such a way as to further the ability of viewers and listeners to obtain access to diverse programming. I do not suggest that broadcast licensees stand in precisely the same relation to the FCC as students or teachers stand to the administrators of a public university. I do believe that the Commission, in selecting licensees who will serve the public interest, must ultimately be responsive to concerns which are in the truest sense educational.
Judge Silberman mixes apples and oranges in claiming that the FCC’s abandonment of the fairness doctrine indicates that the enhancement of diversity on the airwaves is no longer a compelling interest. See Silberman op. at 921. The fairness doctrine, whatever its merits, is quite distinguishable from the distress sale policy: the fairness doctrine involved direct control over the content of programming. The distress sale policy, by contrast, seeks to diversify programming indirectly through a limited targeting of license opportunities. The FCC did not abandon the fairness doctrine because it believed that fostering debate on controversial issues of public importance was not part of its mission, but rather because it considered the means involved to be content-based control of speech.24 The distress sale policy raises no such concerns.25
I cannot accept my colleague’s denigration of the state interest involved here. In my opinion the government clearly has a compelling interest, sufficient to justify the careful use of racial preferences, in encouraging the dissemination of broadcast programming which reflects the nation’s diversity. This view is compelled by circuit precedent and is fully consonant with the decisions of the Supreme Court.
2. The Nexus Between Ownership and Programming
Judge Silberman is openly skeptical about the effectiveness of any FCC policy that addresses program or viewpoint diversification through broadening ownership or control of the media. Of course, there is no guarantee that minority ownership and management will necessarily lead to minority-oriented programming or even to the expression of a discrete minority viewpoint on the airwaves. Similarly, there is no guarantee that minority students will intermingle with nonminority students or exchange viewpoints in a state university, or even that the particular minority students admitted will have typical or distinct “minority” viewpoints. Cf. Bakke, 438 U.S. at 311-13, 98 S.Ct. at 2759-60. These are predictive judgments of a sort which simply do not lend themselves to ironclad proof. It seems to me entirely foreseeable, however, that minority broadcasters — like minority students — will have distinct perspectives to convey. And it seems equally foreseeable that these perspectives will find expression in the licensee’s program*945ming decisions.26
The ownership-programming nexus underlying the distress sale policy does not, however, rest on such assumptions alone, but on two decades of congressional, judicial and agency findings. Back in 1968, the Kerner Commission announced:
The media report and write from the standpoint of a white man’s world. The ills of the ghetto, the difficulties of life there, the Negro’s burning sense of grievance, are seldom conveyed. Slights and indignities are part of the Negro’s daily life, and many of them come from what he now calls the “white press” — a press that repeatedly, if unconsciously reflects the biases, the paternalism, the indifference of white America. This may be understandable, but it is not excusable in an institution that has the mission to inform and educate the whole of our society.
Report of the National Advisory Commission on Civil Disorders 203 (1968). Nine years later, the United States Commission on Civil Rights endorsed the Kerner Commission’s view “that a mass medium dominated by whites will ultimately fail in its attempts to communicate with an audience that includes blacks.” 27
Several decisions of this court have also been premised on the reasonable belief that encouraging minority ownership can be expected to promote diversity of programming. See, e.g., West Michigan, supra; Garrett v. FCC, 513 F.2d 1056 (D.C.Cir.1975); TV 9, Inc. v. FCC, 495 F.2d 929 (D.C.Cir.1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974); Citizens Communications Center v. FCC, 447 F.2d 1201 (D.C.Cir.1971), clarified, 463 F.2d 822 (D.C.Cir.1972). Indeed, we have held that “it is upon ownership that public policy places primary reliance with respect to diversification of content, and that historically has proven to be significantly influential with respect to editorial comment and the presentation of news.” TV 9, 495 F.2d at 938. I believe that these principles remain valid today.
Congress’ conclusions about the nexus between minority ownership and programming diversity, however, are the most significant, for, as the Supreme Court has instructed us, the showing necessary to support an affirmative action program depends in part on the competence of the governmental unit making the finding. As early as 1982, Congress recognized the minority-ownership/diversity nexus, which is the basis for the distress sale policy. H.R. Conf.Rep. No. 765, 97th Cong., 2d Sess. 40 (1982) (“[t]he nexus ... has been repeatedly recognized”). In authorizing a lottery system for choosing among qualified broadcast license applicants, Congress directed the FCC to implement a minority-ownership preference, so that “this approach to enhancing diversity through such structural means will in turn broaden the nature and type of information and programming disseminated to the public.” Id. at 43.
In 1987, Congress spoke even more clearly, directly addressing the distress sale policy itself. The FCC had proposed to Congress a “one-time study designed to elicit empirical evidence to determine whether there is a nexus between minority/female ownership and viewpoint diversity as required by the Constitution....” 1987 Hearings, supra, at 77 (statement of Commissioner Fowler). Congress’ response was that further study was unwarranted; the tie between minority ownership and programming diversity was sufficiently strong to support the constitutionality of the distress sale policy. “The committee believes the inquiry is unwarranted.... Diversity of ownership results in diversity of programming.” S.Rep. No. 182, 100th Cong., 1st Sess. 76 (1987). The Act itself *946said that “none of the funds appropriated ... shall be used ... to continue a reexamination” of the distress sale policy. Pub.L. No. 100-202, 101 Stat. 1329, 1381 (1987). Judge Silberman fails to give this congressional judgment its due. He dismisses the entire episode with the cryptic note that the FCC ended its reconsideration “without issuing any conclusions,” claiming that the aborted inquiry casts doubt on the causal link between increased minority ownership and programming diversity. Silberman op. at 907. He fails to see the forest: Congress terminated the inquiry because it firmly concluded for itself that the connection was there and no need for Commission reconsideration existed.28
The evidence supporting these findings has typically been anecdotal rather than statistical. Cf. 1985 Fairness Report, 102 F.C.C.2d 143 (1985) (FCC’s belief that the fairness doctrine chilled speech is justified by reference to anecdotal rather than statistical evidence). In part this is because the subject does not lend itself to quantification. In part, though, it is because the dearth of minority broadcasters has made it quite difficult to draw empirical conclusions concerning the programming offered by minority-owned stations. Judge Silber-man’s approach to the case places Congress in an impossible bind; it makes the distress sale policy’s constitutionality dependent on evidence which simply will not be available until minority ownership of broadcast stations has increased substantially.
Judge Silberman fails as well to take account of the first amendment limits placed upon Congress and the FCC, which preclude more direct efforts to enhance program diversity. Although the Commission cannot control directly the variety of programming that licensees afford the public, Judge Silberman nonetheless insists that the constitutionality of this congres-sionally mandated policy requires demonstrable proof of the connection between ownership and programming. Congress is between a rock and a hard place: it cannot under the first amendment directly ensure a certain kind of programming or viewpoint diversity, yet the panel overturns its entirely reasonable efforts aimed at diversity for want of proof that they will definitely produce the anticipated results.29
I also do not believe that the distress sale policy is rendered invalid by- the fact that participating minority broadcasters are not required to prove that they are individual victims of prior discrimination. See Silber-man op. at 915-16. Three Justices in Cro-son did stress the desirability of such fine-tuning, see 109 S.Ct. at 718 (Opinion of O’Connor, J.), but in no case has a majority of the Court held that individualized consid*947eration is required.30 In any event, such a requirement seems inapplicable to the present case. Since the distress sale policy is intended to serve as a method of enhancing broadcast diversity — not as a means of redressing injuries done to the minority broadcasters themselves — it does not seem particularly germane whether the individual who is awarded a license can establish that he has suffered from specific discriminatory acts. Any requirement that affirmative action plans bestow their benefits only on those who are themselves victims is therefore inapplicable to Congress’ justification for the distress sale policy.
In fact, the promotion of minority ownership as an approach to program diversity clearly meets the test of “narrow tailoring.” The FCC has, over the years, experimented with several devices to further program diversification without directly regulating programming content. The distress sale policy was adopted only after specific findings by the FCC that equal employment opportunity rules31 and ascertainment policies32 alone were insufficient to accomplish significant minority participation in programming.33 The Commission found that the market was neither able nor willing to provide the necessary degree of diversity in programming.34 I therefore believe that the distress sale policy satisfies the Croson Court’s requirement that racial preferences be employed *948only after race-neutral methods have been found wanting. See Croson, 109 S.Ct. at 728; see also Silberman op. at 915.
The history of the FCC’s efforts in this field thus demonstrates that the distress sale policy was adopted only after other means had proven unsuccessful in enhancing minority access to the mass media.35 Despite the FCC’s recent equivocation about the effectiveness of the distress sale policy, Congress has not equivocated at all but has directly mandated that the Commission stay the course. For twenty years, moreover, no one (neither the Commission nor the courts nor Congress) doubted the reasonableness of the ownership-programming connection. Now, the Commission36 and my colleague entertain second thoughts and want more proof. Congress, however, remains steadfast in its belief that the nexus between diverse ownership and diverse programming exists, and I believe that the record fully supports that congressional determination.
3. The Significance of Racial Diversity
The most problematic feature of the distress sale policy lies in the fact that its benefits are bestowed solely upon minority buyers. The distress sale policy is not a setaside: no pre-determined number of stations is reserved exclusively for minority ownership. It must nevertheless be acknowledged that distress sales reserve certain opportunities to minority purchasers alone, and that the Commission’s approval or rejection of a proposed sale will be made without considering the qualifications of nonminority competitors. The plan therefore more closely resembles the admissions program struck down in Bakke, rather than the Harvard Plan, noted approvingly in Justice Powell’s opinion, which provided that minority status would be an advantage but would not be an absolute requirement for any admissions slot.37 Judge Silberman *949suggests that this factor alone is sufficient to invalidate the program. I do not believe, though, that governing precedents require this result.
To begin with, it should be noted that Justice Powell was the only member of the Bakke Court who perceived a constitutional distinction between an affirmative action plan which reserved a specified number of slots for minority candidates and a plan which employed race as a plus-factor in admissions decisions. The other four Justices who reached the constitutional question expressly denied that any such constitutional distinction exists. See Bakke, 438 U.S. at 378-79, 98 S.Ct. at 2793 (Opinion of Brennan, White, Marshall, and Blackmun, JJ.). Furthermore, subsequent decisions of the Supreme Court have made it clear that the Constitution does not prohibit every affirmative action plan which reserves particular opportunities exclusively for minority applicants.
Fullilove, after all, upheld a plan which reserved a specified percentage of government business for minority contractors. Justice Powell voted to sustain the plan, and the basis on which he distinguished the case from Bakke is highly instructive. Justice Powell did not rely on a distinction between affirmative action plans designed to promote diversity and plans intended to remedy prior discrimination. Rather, he emphasized the broad powers of Congress: “I [do not] conclude that use of a set-aside always will be an appropriate remedy or that the selection of a set-aside by any other governmental body will be constitutional [citing Bakke ]. The degree of specificity required in the findings of discrimination and the breadth of discretion in the choice of remedies may vary with the nature and authority of a governmental body.” Fullilove, 448 U.S. at 515-16 n. 14, 100 S.Ct. at 2793-94 n. 14 (Powell, J., concurring).
Nor do the Court’s opinions in Wygant support the proposition that Judge Silber-man advances today. The Court struck down the challenged affirmative action plan, with Justices Powell, O’Connor, and White writing opinions in support of the judgment. No Justice suggested, however, that the Wygant plan could be invalidated solely on the ground that it employed a numerical formula to determine the portion of the teaching staff to be reserved for minorities. In more recent cases involving court-ordered remedies for specific discriminatory practices, the Court has upheld the use of numerical quotas where less severe steps have proven unavailing. See supra 934 n. 1.
In light of subsequent decisions, I read Bakke to hold, at most, that an affirmative action plan which uses a “plus-factor” approach is preferable to a plan reserving specified opportunities for minorities, if the two plans will be equally effective in achieving their remedial goals. In the present case, however, I believe that there are ample grounds for concluding that a plan utilizing a “plus-factor” approach would not be sufficient. The dramatic statistical underrepresentation of minorities noted by the FCC and Congress, see Minority Ownership Taskforce Report (Commission in 1978 notes one percent minority ownership); 1987 Hearings at 17 (Congress noting “mere 2 percent” ownership) (statement of Sen. Lautenberg), underscores why policies aimed merely at encouraging general diversity have proven inadequate. The Commission’s general pursuit of diversified broadcasting has failed miserably in achieving meaningful minority representation. 1978 Policy Statement, supra, at 980, 982. Significantly, the FCC made no similar findings of underrepresentation of various “professions” or “religions,” which Judge Silberman groundlessly claims are equally good targets for a diversity preference. See Silberman op. at 921. A narrowly focused program is justified both by the particular importance of racial equality and by the lack of success of less carefully targeted efforts.
It is also important to point out that the FCC has simultaneously followed the “plus-factor” approach to licensing by affording enhancement credits for minority ownership and management in comparative hearings. Both Congress and the FCC, however, have found that this technique alone simply does not do the job:
*950It is clear that the current comparative hearing process has not resulted in the award of significant numbers of licenses to minority groups. Many minority applicants are simply unable to participate in comparative hearings which often take a considerable period of time and require substantial economic resources.
H.R.Conf.Rep. No. 765, 97th Cong., 2d Sess. 44 (1982) (emphasis added). Thus, where diversity of ownership has not proven practically attainable through a multi-factored evaluation of the “total” applicant, as may work in student admissions, it does not seem unreasonable to target previously identified financial barriers to minority access.
C. Effect Upon Nonminority Applicants
Past Supreme Court decisions, as the majority points out, have evaluated affirmative action schemes by assessing the burdens they impose on innocent nonminorities. Those burdens have been measured in different ways. In Fullilove, for example, the Chief Justice, in finding the 10% minority set-aside for construction contracts constitutional, focused on its relatively small impact on total procurement opportunities. See Fullilove, 448 U.S. at 484-85 & n. 72, 100 S.Ct. at 2777-78 & n. 72 (Opinion of Burger, C.J.).38 In Wygant, the plurality repeatedly emphasized that a plan incorporating hiring goals for minorities imposed a lesser burden on nonminorities than a layoff preference,39 a distinction that Justice Powell found persuasive in Local 28 as well. See Local 28, 478 U.S. at 488, 106 S.Ct. at 3057 (Powell, J., concurring).
These standards, it seems to me, recognize two distinct ways in which an affirmative action plan may be said to impose excessive burdens on innocent nonminorities. The Fullilove standard focuses on the burden placed on nonminority applicants as a group: the statistical inquiry ensures that minorities will not be allocated an exorbitant portion of the opportunities in a given sphere. The Wygant standard focuses on the burdens imposed on particular nonminority individuals. The distress sale policy satisfies both these standards.
The distress sale policy imposes minimal burdens on nonminority license applicants as a group. By its very terms, it may be invoked at the Commission’s discretion only with respect to a small fraction of all broadcast licenses (those designated for revocation or renewal hearings on the basis of basic qualification issues), and only when the licensee chooses to sell out at a distress price rather than go through with the hearing. Unlike the University of California admissions plan found unconstitutional in Bakke, 438 U.S. at 289, 98 S.Ct. at 2747 (Opinion of Powell, J.), no specific number of licenses is set aside for allocation to minorities through the distress sale mechanism. Instead, the distress sale policy merely offers an alternative and largely unpredictable procedural route for license applications. The circumstances in which distress sales arise are rare and only a small number are approved; as of the briefing of this case, the distress sale policy had resulted in the transfer of only thirty-three stations to minority-controlled businesses in seven years. These distress sales represent 0.28% of all broadcast stations in the United States,40 far below the *95110% of annual public works appropriations directed to minority businesses in Fulli-love.
Thus, the distress sale policy imposes far less severe burdens upon nonminorities as a group than did Fullilove’s MBE set-aside. As in Fullilove, nonminority firms remain free to compete for the vast majority of licensee opportunities available. Furthermore, even when the Commission considers a distress sale, it does not refuse to entertain nonminority petitions for access to the license in question. Interested non-minority parties can oppose both the licensees’ election of the distress sale procedure and the specific transaction proposed to the Commission. “A distress sale ... is a form of extraordinary relief and depends on the facts and circumstances of the individual petition.” Faith Center, Inc., 82 F.C.C.2d 1, 35 (1980).41
Nor does the distress sale policy impose an unacceptable burden on particular non-minority individuals such as Shurberg. The Supreme Court has looked most skeptically at affirmative action programs involving layoffs because firings inevitably involve a greater disruption of settled expectations. See Wygant, 476 U.S. at 282-83, 106 S.Ct. at 1851 (Opinion of Powell, J.) (“Denial of a future employment opportunity is not as intrusive as loss of an existing job”).42 Since the distress sale policy involves entry into a market, it is far more analogous to “hirings” than to “firings.” The interest of a potential applicant in obtaining a license through comparative hearings where the current licensee’s fitness is in doubt is even more speculative than an applicant’s interest in a potential job and certainly lacks the legitimate expectation of continued employment of someone already working. The current licensee’s troubles create a lucky-strike-extra situation for potential applicants: unexpectedly, a valuable license becomes available and the former licensee’s broadcasting property dramatically decreases in value. Because of the unique and unpredictable nature of such situations, a distress sale can hardly be said to disrupt the settled expectations of potential licensees.
Plainly the distress sale policy imposes disadvantages on innocent nonminority applicants, and I do not intend to belittle their hardships. A broadcast license is a valuable property; only a few become available; and the licenses are not fungible.43 Nevertheless, I do not believe that Shur-berg’s injury can plausibly be compared to the hardship suffered by one who, like the senior teachers in Wygant, is deprived of an existing source of livelihood.44 Shur-*952berg claims only that as a result of the distress sale it was denied participation in a single comparative hearing in which it might have been awarded the license. And its exclusion from that hearing forecloses “only one of several opportunities,” see Wygant, 476 U.S. at 283, 106 S.Ct. at 1837 (Opinion of Powell, J.). Shurberg has been rendered no worse off than it was before Faith Center’s fortuitous misconduct;45 it has simply been denied a chance at a windfall.
It should also be noted that neither Shur-berg nor any other nonminority applicant is denied financial participation in enterprises that qualify for distress sale treatment by reason of the racial composition of their owners or managers. As a matter of fact, in order to lessen the financial obstacles to increased minority ownership, the FCC will accept applications for sales to limited partnerships, in which management and control reside primarily with qualified minority general partners but substantial financial rewards flow to nonminority limited partners who have provided the necessary capital. See 1982 Policy Statement, supra, at 853-55.46 In sum, the near-monopoly exercised by nonminorities over broadcast media — they control approximately 98% of all broadcast licenses — and the very limited circumstances in which the distress sale policy can be invoked, suggest that the burden the policy places on nonminority applicants is acceptable.47
D. Remedying Past Discrimination
As I noted earlier, see supra, pp. 941-43, it is somewhat deceptive to speak of a sharp distinction between the government’s desire to promote broadcast diversity and its desire to remedy past discrimination. Certainly it is appropriate to distinguish between the attempt to further public access to varied programming and the attempt to advance the economic interests of minority broadcasters. But the effort to promote broadcast diversity is itself, in a broad sense, a “remedial” program: it seeks to address the lasting effects of our nation’s long history of racial discrimination. I will acknowledge, however, that the term “remedial” is sometimes used (as Judge Silberman uses it, see Silberman op. *953at 912) to refer only to programs designed to benefit members of the previously victimized race.48 I do wish to offer a few brief observations concerning programs of this sort.
The Court in Croson, while sharply limiting the power of state and local governments to institute affirmative action programs, acknowledged the expansive authority of Congress to mandate racial preferences. Justice O’Connor’s plurality opinion recognized that “Congress may identify and redress the effects of society-wide discrimination,” 109 S.Ct. at 719; see also id. at 736-37 (Scalia, J., concurring). The three dissenters, who would extend broad remedial authority to other public entities, would surely not deny it to Congress. I read Croson as reaffirming a broad congressional authority to employ race-based remedies to ameliorate the position of previously disadvantaged racial groups. Congress is not restricted to addressing problems caused by its own prior discrimination, nor is it required to identify particular instances of discrimination as a predicate for remedial action.
In the present case, I have focused exclusively on the goal of enhancing broadcast diversity. This is because Congress, in mandating continued implementation of the distress sale policy, relied exclusively on the diversity rationale. There is simply no indication that Congress was motivated, even in part, by a desire to improve the lot of minority broadcasters. My emphasis on the diversity rationale in this case should not, however, obscure my strong conviction that Congress retains broad authority to employ race-based measures in other areas to enhance the economic situation of those who have previously been the victims of lasting and pervasive discrimination.
IV. Conclusion
The majority has struck down a program mandated by Congress, one that is part of a broader and constantly evolving effort to ensure diversity in programming through diversity in ownership. The congressional decision was hardly an uninformed choice: Congress acted on the basis of nearly a decade of experience with the distress sale policy. Judge Silberman’s principal error lies in his failure to give due weight to the considered judgment of Congress. That error is compounded by his denigration of the public interest in programming diversity and his failure to fully credit the precedents of this circuit.
Congress, despite the agency’s misgivings, has ordered the continuation of a limited minority access scheme designed to promote diversification in broadcasting through the elimination of identified structural barriers that have traditionally burdened minority ownership. Its distress sale policy is narrowly tailored to address the critical entry barriers to minority participation in media ownership while imposing only minimal burdens on innocent third parties. I do not believe that so modest and targeted a program furthering such a compelling aim violates the Constitution. I therefore respectfully dissent.
. See also Local 28 of the Sheet Metal Workers’ Int'l Ass’n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (court-ordered plan directed at employment discrimination); United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (same).
. This court’s decision in West Michigan antedated the Supreme Court’s decisions in Wygant and Croson, and of course West Michigan is no longer binding insofar as it conflicts with the higher Court’s pronouncements. I do not believe, however, that either Wygant or Croson undermines our earlier views concerning the compelling nature of the state’s interest in broadcasting diversity. See infra, pp. 941-43.
I also recognize that the distress sale policy differs in significant respects from the use of race as one element in comparative licensing proceedings. See infra, pp. 948-50. Both policies, however, start from the premise that broadcast diversity is a sufficiently compelling state interest to justify the use of racial preferences.
. Appellant argued strenuously before this court that the FCC, in this case, did not follow its own distress sale policy rules and exceeded permissible limits on its discretion to apply the policy in the licensing process. Indeed, in granting Faith Center a third successive opportunity to arrange a distress sale rather than requiring a renewal hearing, the FCC acknowledged that its balancing of the public interest in minority-ownership policies against the public interest in permitting comparative hearings was a "close ques*936tion.” J.A. at 5, citing New South Media Corp. v. FCC, 685 F.2d 708 (D.C.Cir.1982), and Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). Had the majority concluded that the FCC acted arbitrarily or exceeded its authority in authorizing the third attempt at a distress sale, it would have avoided the constitutional question altogether. Indeed, it is hard to set how anything short of a fairly compelling interest could justify such repeated postponement of Ashbacker comparative hearings.
I note in passing my disagreement with Judge Silberman’s contention, see Silberman op. at 908 n. 7, that I would not be entitled to address the constitutional question if I did not adopt the FCC’s position on the statutory issue. Since a majority of the panel has determined that the constitutional question must be resolved, I reserve my right to express my views, whether or not I would have reached the issue if the choice were mine alone to make.
. In the Communications Act of 1934 Congress empowered the FCC to allocate broadcast licenses in such a way as to serve the "public convenience, interest, or necessity.” 47 U.S.C. § 307(a).
. The FCC also reiterated its earlier concern that “diversification ... is additionally desirable where a government licensing system limits access by the public to the use of radio and television facilities.” 1978 Policy Statement, supra, at 981 (quoting 1965 Policy Statement, supra, at 394).
. The FCC had previously noted that "[djespite the fact that minorities constitute approximately 20 percent of the population, they control fewer than one percent of the 8500 commercial radio and television stations currently operating in this country." FCC Minority Ownership Task-force, Minority Ownership in Broadcasting 1 (1978) [hereinafter Minority Ownership Task-force Report ] (emphasis in original).
. The FCC has the authority under § 1071 of the Internal Revenue Code to grant sellers tax certificates to defer capital gains taxation on the transaction. These certificates may be used as incentives to induce sales of broadcast properties to minority owners. See 26 U.S.C. § 1071; Issuance of Tax Certificates, 19 Rad.Reg. 2d (P & F) 1831 (1970).
. The distress sale policy is essentially an administrative exception to the general rule that once a licensee’s basic qualifications have been called into question by designation for either a revocation or a renewal hearing, the licensee may not voluntarily transfer the license. There have, however, always been exceptions to this rule for bankrupt or disabled licensees. The minority distress sale policy expanded these exceptions to include licensees who would agree to sell at a discount to qualified minority-controlled purchasers.
By 1982, the FCC had approved only 27 distress sales in four years. Finding that the continued underrepresentation of minorities was still a “serious concern” and financing still posed "the single greatest obstacle” to increased minority participation, the FCC modified the distress sale policy further. After reviewing the recommendations of its Advisory Committee on Alternative Financing for Minority Opportunities in Telecommunications, the Commission announced that it would authorize distress sales to limited partnerships so long as the general partner was a member of a minority group and owned more than 20% of the enterprise. The purpose of the amendment was to allow minority entrepreneurs easier access to the necessary capital. See Commission Policy Regarding the Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 855 (1982) [hereinafter 1982 Policy Statement].
In 1985, the FCC began consideration of a further revision of the distress sale policy to allow a licensee to exercise a distress sale option at a later stage in the renewal proceeding. See Notice of Inquiry, 50 Fed.Reg. 42,047 (1985). Nonetheless, in the past six years, the Commission has only approved 11 more distress sales, for a modest total of only 38 in ten years.
.The distress sale policy requires that the sale price reflect no more than 75% of the market value of the broadcast property and license in order to retain the deterrent effect of license revocation hearings. See Lee Broadcasting Corp., 76 F.C.C.2d 462 (1980). Nonetheless, the prospect of even greater loss if a license is revoked gives the current licensee an economic incentive to sell at this discount price to a minority buyer.
. "It is the firm intent of the Conferees that traditional Commission objectives designed to promote the diversification of control of the media of mass communications be incorporated in the administration of a lottery system.” H.R. Conf.Rep. No. 765, 97th Cong., 2d Sess. 40 (1982).
. The congressional ban on FCC reconsideration of these programs was recently extended through fiscal year 1989. See Pub.L. No. 100-459, 102 Stat. 2186, 2216-17 (1988).
. The application of Fullilove to this case is complicated by the fact that in Fullilove — as in Bakke and Wygant — no opinion commanded a majority of the Court. I rely principally on Chief Justice Burger’s opinion, joined by Justices Powell and White. The Chief Justice’s opinion plainly occupied a middle ground between the position of Justices Brennan, Marshall, and Blackmun, who announced fairly deferential standards for review of affirmative action programs generally, and that of Justices Stewart, Rehnquist, and Stevens, who would have struck down the MBE program.
. I note that Judge MacKinnon accepts the premise that the distress sale program represents a considered congressional policy choice. See MacKinnon op. at 932-33.
The fact that Congress has acted does not, of course, mean that the distress sale policy is ipso facto constitutional. My colleagues are correct in asserting that even an Act of Congress is subject to searching scrutiny when constitutional values are implicated. See Silberman op. at 923-24; MacKinnon op. at 932-33. But while the congressional judgment is not dispositive, it surely makes a difference. Congress has far broader powers than does an administrative agency; its findings of fact are entitled to greater respect; and, unlike the agency, it need not compile a formal record or issue an opinion. Moreover, section 5 of the fourteenth amendment entrusts Congress with the authority to implement equal protection guarantees. These factors do not obviate the need for judicial review, but they do shape the contours of our inquiry.
.Although Congress was evidently aware of Shurberg’s pending complaint, there is no suggestion that Shurberg was singled out for unfavorable treatment or that the congressional action was in any sense a vendetta against a particular individual. This case is thus plainly distinguishable from News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988), which stressed that “[t]he Hollings Amendment strikes at Murdoch with the precision of a laser beam” and that "Murdoch and News America were more than mere ‘catalysts’ for congressional action aimed at a particular evil.” Id. at 814, 815.
. Judge Silberman’s approach, in fact, is strikingly similar to that of Justice Stevens in Fulli-love. Since Justice Stevens’ approach was accepted by no other member of the Supreme Court, we are powerless to adopt it here.
. One commentator has written that "[b]ecause [legislators] are the direct representatives of the people, the law imposes no restrictions on them with respect to their use or nonuse of facts as a basis for legislating.” Davis, Facts in Lawmaking, 80 Colum.L.Rev. 931 (1980). And Judge Silberman has cited no authority for the proposition that a court may scrutinize the decision-making process of Congress and invalidate laws to which "inadequate” attention has been paid.
.Moreover, Congress had acted some years previously to mandate the use of racial preferences within the FCC’s lottery system. I do not contend that the lottery mechanism is constitutionally indistinguishable from the distress sale program. Both, however, depend on the same core premises: that a station’s programming will be significantly affected by the race of its owner, and that the public interest in diverse programming is served by measures which increase the heterogeneity of broadcast licensees.
. Justice White stated that “[w]hatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a *942different matter.” 476 U.S. at 295, 106 S.Ct. at 1857.
. The statement in Croson that racial classifications should be "strictly reserved for remedial settings," 109 S.Ct. at 721, represents the view of only four Justices and is therefore not a holding of the Court.
. I must acknowledge that Justice Stevens, like Judge Silberman, appears to read Justice O'Con-nor’s opinion as rejecting the diversity rationale. See 109 S.Ct. at 730 & n. 1 (Stevens, J., concurring).
. Under Judge Silberman’s view of Croson, all consideration of race by public universities as an element of diversity would be rendered unconstitutional. Moreover, all nine Justices in Bakke agreed that Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, imposes restrictions at least as stringent as those established by the Constitution. See Bakke, 438 U.S. at 286-87, 98 S.Ct. at 2746 (Opinion of Powell, J.); id. at 328-40, 98 S.Ct. at 2767-73 (Opinion of Brennan, White, Marshall, and Blackmun, JJ.); id. at 416, 98 S.Ct. at 2812 (Opinion of Stevens, J.). Judge Silberman’s prohibition, therefore, would perforce apply to all private universities which receive federal funds. I would hesitate, however, to infer such a sweeping change in the law governing university admissions policies based on a few ambiguous words of dicta in a plurality opinion.
. A university is not, however, a self-contained world: University students have access to the same range of broadcast fare (and often to cable services) which is available to the public generally. If the university has a compelling interest in exposing students to diverse ideas in addition to those which are available to the citizenry at large, then it is hard to see how the state could have a less weighty interest in ensuring diversity for those who lack access to university facilities.
. In Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967), the Court stated: "Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment_ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection,’ United States v. Associated Press, 52 F.Supp. 362, 372.” The citation to Associated Press — which justified antitrust regulation of the print media as a means of enhancing diversity— at least suggests that the Court saw a connection between the government’s efforts to promote diversity of opinion inside and outside the classroom. Justice Powell quoted this passage from Keyishian in his Bakke opinion. See 438 U.S. at 312, 98 S.Ct. at 2759.
. In its decision to eliminate the fairness doctrine, the Commission was principally motivated by its doubts concerning the doctrine’s effectiveness, not by doubts as to the legitimacy of governmental efforts to enhance broadcast diversity. The Commission stated that "under the standard of review set forth in Red Lion, a governmental regulation such as the fairness doctrine is constitutional if it furthers the paramount interest of the public in receiving diverse and antagonistic sources of information. Under Red Lion, however, the constitutionality of the fairness doctrine becomes questionable if the chilling effect resulting from the doctrine thwarts its intended purpose." Syracuse Peace Council, 2 F.C.C.Rcd. 5043, 5052 (1987) (emphasis added).
In denying reconsideration of its order abrogating the fairness doctrine, the Commission stated: “As noted in the August order, the fairness doctrine is clearly a content-based regulation of broadcast speech. Neither that order nor this reconsideration calls into question the constitutionality of our content-neutral, structural regulations designed to promote diversity." Syracuse Peace Council (Reconsideration), 3 FCC Rcd. 2035, 2041 n. 56 (1988) (citation omitted).
. My colleague’s reliance on the FCC's abrogation of the fairness doctrine also ignores the fact that Congress has acted in this case. The statutory requirement that the distress sale policy be continued reflects a congressional determination that the public need for diversity in programming still warrants affirmative protection. If there were in fact a contradiction between discontinuation of the fairness doctrine and the decision to maintain the distress sale policy, this court would plainly be required to give precedence to the congressional judgment.
. The nexus is not limited to the broadcasting context, but has been documented in other communications industries as well. See, e.g., Media and the First Amendment in a Free Society, 60 Geo.L.J. 867, 896 (1972) (stating that ownership is the key variable affecting news content and editorial policy of a newspaper).
. United States Commission on Civil Rights, Window Dressing on the Set: Women and Minorities in Television 2 (1977).
. Clearly Congress had a sufficient basis for its belief that increased minority ownership of broadcasting facilities will enhance diversity of programming. In 1978, the Commission concluded "that diversification in the areas of programming and ownership — legitimate public interest objectives of this Commission — can be more fully developed through our encouragement of minority ownership of broadcast properties,” 1978 Policy Statement at 981. Four years later, recognizing "the ever-present ‘dearth of minority ownership’ in the telecommunications industry to be a serious concern,” it reaffirmed and expanded the distress sale policy and other minority ownership-oriented policies. See 1982 Policy Statement at 852. Judge Silber-man relies heavily on the Commission’s recent doubts concerning the existence of the nexus. See Silberman op. at 921 (citing FCC’s Steele Brief). Given the existence of conflicting views within the agency, it was plainly within the competence of Congress to find that the nexus exists.
Since the original congressional ban on reexamination of the distress sale policy, the Congressional Research Service has released a report which supports the conclusion that a nexus exists between minority ownership and programming. See Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (Congressional Research Service 1988). Senator Hollings relied on this report in successfully arguing for a reenactment of the appropriations ban. See 134 Cong. Rec. S10.021 (daily ed. July 27, 1988).
. Because "balancing the various First Amendment interests involved in the broadcast media ... is a task of great delicacy and difficulty,” Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), Judge Silber-man’s belittlement of Congress' clearly expressed mandate is particularly inappropriate. Under such circumstances, "we must afford great weight to the decisions of Congress and the experience of the Commission.” Id.
. In the context of court-ordered race-conscious relief, six members of the Supreme Court agreed in Local 28 that "preferential relief benefiting individuals who are not the actual victims of discrimination” may be required. 478 U.S. at 482, 106 S.Ct. at 3053.
. The Supreme Court has praised the FCC’s efforts in minority employment as a way of accomplishing programming diversity. "The Federal Communications Commission has adopted regulations dealing with the employment practices of its regulatees_ These regulations can be justified as necessary to enable the FCC to satisfy its obligation under the Communications Act of 1934 ... to ensure that its licensees’ programming fairly reflects the tastes and viewpoints of minority groups.” NAACP v. FPC, 425 U.S. 662, 670 n. 5, 96 S.Ct. 1806, 1812 n. 5, 48 L.Ed.2d 284 (1976) (citations omitted).
. The FCC’s "ascertainment” policy required licensees to contact community leaders and members of the general public, specifically including minorities and women, to obtain information about community interests so as to present programming responsive to those interests. See Ascertainment of Community Problems by Broadcast Applicants, 57 F.C.C.2d 418 (1976). As part of a conscious dismantling of command and control regulations — actions requiring specific conduct by licensees — the FCC has more recently cut back on ascertainment requirements. See Honig, The FCC and Its Fluctuating Commitment to Minority Ownership of Broadcast Facilities, 27 How.L.J. 859, 867 (1984).
. In announcing the distress sale policy, the FCC concluded that “[wjhile the broadcasting industry has on the whole responded positively to its ascertainment obligations and has made significant strides in its employment practices, we are compelled to observe that the views of racial minorities continue to be inadequately represented in the broadcast media.” 1978 Policy Statement, supra, at 980 (footnotes omitted).
.The FCC cited research showing that audience survey data tends systematically to underestimate black or Spanish-speaking audiences and often fails to measure and report adequately their listening habits. See Minority Ownership Taskforce Report at 22-24 (1978). “The rating services have been accused of subjecting ethnic media to gross prejudices and generalizations. This problem has been traced, in large part, to the absence of minorities in decision-making positions with advertising agencies or the major corporate advertisers.” Id. at 25. In light of the FCC’s own doubts, Judge Silber-man’s reliance on a station owner's response to the demands of the marketplace to ensure diversity, see Silberman op. at 922, is unconvincing. The FCC's Taskforce Report rejected such reliance as unacceptable in view of its diversity mandate.
Acute underrepresentation of minorities among the owners of broadcast properties is troublesome because it is the licensee who is ultimately responsible for identifying and serving the needs and interests of his or her audience. Unless minorities are encouraged to enter the mainstream of the commercial broadcasting business, a substantial proportion of our citizenry will remain under-served and the larger, nonminority audience will be deprived of the views of minorities.
Minority Ownership Taskforce Report, supra, at 1 (emphasis added). While Judge Silberman cites the deregulatory rulemakings of the past decade to support the proposition that market forces now are sufficient to create diverse programming, see Silberman op. at 922-23 (citing the FCC’s Steele Brief), none of the cited rule-makings revisit, let alone directly call into question, the explicit findings of the Commission in its minority ownership rulings.
.Judge Silberman argues that the proliferation of new media outlets and technologies obviates the traditional "scarcity of the spectrum” rationale that supported the FCC’s diversity of programming policies. See Silberman op. at 921. Even assuming some validity to its argument, the majority never comes to grips with the failure of sheer numbers of media alone to affect the structural barriers to increased minority ownership of broadcast properties. We know already that these same barriers operate just as acutely in cable and other media as they do in radio and television. Underrepresentation of minority voices in programming is not cured by greater numbers and varieties of mass media if they continue to be controlled by nonminority enterprises. See Hammond, Now You See It, Now You Don't: Minority Ownership in an “Unregulated" Video Market Place, 32 Cath.U.L.Rev. 633, 638, 662 (1983). Underrepresentation of minority views in television is particularly troubling. The impact of television on our daily lives, and those of our children, is unquestionably greater than that of print media.
Unlike print, television does not require literacy. Unlike the movies, television is "free” ... and it is always running. Unlike the theater, concerts, movies, and even churches, television does not require mobility. It comes into the home and reaches individuals directly. With its virtually unlimited access from cradle to grave, television both precedes reading and, increasingly, preempts it.
United States Commission on Civil Rights, Window Dressing-on the Set: An Update 44 (1979) (quoting Gerber & Gross, Living With Television: The Violence Profile, 26 J.Comm. (Spring 1976) at 176).
. In fact, it would appear that the Commission’s doubts have been short-lived. As Judge Silberman acknowledges, see Silberman op. at 11, the FCC’s brief in Winter Park Communications v. FCC, Nos. 85-1755 and 85-1756 (D.C. Cir., argued Nov. 21, 1988), supports the continued use of minority preferences within the FCC’s comparative licensing procedures. Certainly the use of race in comparative hearings is distinguishable from the present case; and it is not clear whether the Commission, if given the choice, would retain the distress sale policy. Both policies, however, presume a connection between programming content and the race of a station owner; given the Commission's stance in Winter Park, it would appear that the FCC now believes that the nexus exists. In light of the Commission’s most recent pronouncements, Judge Silberman's reliance on the FCC's earlier brief in Steele, see Silberman op. at 921, 922-23, appears imprudent.
. This is also the principal distinction between the distress sale policy and the FCC’s comparative licensing procedures. The West Michigan court emphasized that comparative hearings involve "a consideration of minority status as but one factor in a competitive multi-factor selection system that is designed to obtain a diverse mix of broadcasters.” 735 F.2d at 613 (emphasis in original). The court stated, however, that "[i]n giving special weight to [this] factor[ ] we in no way imply that [it] would be essential to the constitutionality of a government affirmative action program." Id. at 614.
. The Chief Justice noted that it was "not a constitutional defect in [the minority business enterprise set-aside provision] that it may disappoint the expectations of nonminority firms,” 448 U.S. at 484, 100 S.Ct. at 2777, especially given that the 10% minimum minority participation translated into only 0.25% of the annual expenditure for construction work in the United States. Id. at 484-85 n. 72, 100 S.Ct. at 2777-78 n. 72.
. The Wygant plurality reasoned that "[i]n cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose." 476 U.S. at 282, 106 S.Ct. at 1851 (emphasis in original).
.See Brief amicus curiae of National Black Media Coalition, the League of United Latin American Citizens, and the NAACP, at 33 (filed July 15, 1985). The FCC also noted the small number of distress sale assignments when it recently sought comments on revising the policy. See Notice of Inquiry, 50 Fed.Reg. at 42,048 n. 6 (1985).
*951Judge MacKinnon correctly notes that neither Congress nor the Commission has established a numerical limit on the number of stations that may be transferred pursuant to the distress sale policy. See MacKinnon op. at 930. Experience over an extended period of time, however, has belied any notion that distress sales will account for a substantial percentage of the country’s broadcast outlets. Against this backdrop it would seem perverse to invalidate the policy based on a theoretical possibility that the program might some day be overused.
. The Commission, in fact, refused to allow distress sale treatment for two other Faith Center stations and nonminority firms filed applications for both licenses. Faith Center, Inc., 82 F.C.C.2d 1 (1980), recons, denied, 86 F.C.C.2d 891 (1981).
. Compare United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (holding voluntarily adopted racial quotas permissible under Title VII) and Local 93, Int’l Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (approving hiring and promotion preferences in consent decree) with Firefighters Local 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (invalidating racial quota that required layoffs).
. I recognize that Shurberg may have a difficult time acquiring another television station. In this respect, however, the distress sale policy is no different from the use of race in comparative licensing procedures, a practice which has been repeatedly upheld by this court.
. Writing for the Wygant plurality, Justice Powell noted that "[e]ven a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority.... Layoffs disrupt these settled expectations in a way that general hiring goals do not." 476 U.S. at 283, 106 S.Ct. at 1851. Plainly Shurberg has not suffered the sort of injury which Justice Powell associated with layoffs. Justice Powell himself analogized “hiring” plans to school admissions preference schemes, *952stressing that the foreclosing of an opportunity does not cause the same kind of injury as the deprivation of something the innocent party already has. See Wygant, 476 U.S. at 283 n. 11, 106 S.Ct. at 1851 n. 11. Justice White’s concurrence, which provided the fifth vote to strike down the Wygant plan, rested exclusively on this distinction. 476 U.S. at 294-95, 106 S.Ct. at 1857. See supra, p. 941 n. 18.
. Judge MacKinnon attaches constitutional significance to the fact that Faith Center’s misconduct was unrelated to racial discrimination. See MacKinnon op. at 931. Surely this can make no difference. When racial preferences are used in the distribution of scarce resources, the Constitution does not require that the resources themselves must be the product of past discrimination. Clearly the government contracting opportunities at issue in Fullilove did not become available because of any discriminatory act.
. Judge Silberman does not see how this alternative ”affect[s] [Shurberg’s] constitutional claim.” Silberman op. at 918 n. 23. It is obvious, however, that the distress sale policy does allow nonminorities to share in the admittedly substantial financial benefits, see Silberman op. at 916, created by a license revocation situation, see supra at 937 note 9, and thus its burden is lighter than the burden of a hypothetical program reserving all profits to minorities.
.My colleagues err in focusing only on the individual burden borne by Shurberg (which they exaggerate), forgetting the Supreme Court’s admonition that innocent parties may sometimes be asked to bear the burden of affirmative action programs. See Wygant, 476 U.S. at 280-81, 106 S.Ct. at 1850 (Opinion of Powell, J.) (”[a]s part of this Nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy"). An absolutist prohibition on any such transfer would call into question virtually all of the affirmative action programs at universities because in most cases some nonmi-nority applicant loses his opportunity to enter the college of his choice. Similarly, it places in doubt affirmative action programs in the workplace because often an unhired nonminority applicant may not have any other opportunity to ply his trade in the same community. These are serious burdens for individuals, but they have not been held to invalidate otherwise legitimate affirmative action programs. My colleagues’ approach suggests — erroneously in my view — that affirmative action is permissible only when nothing very important is at stake, when such a superabundance of opportunity exists that no one need go without.
. Judge Silberman suggests that I am unclear as to whether the distress sale policy is in fact a "remedial” program. See Silberman op. at 914 n. 13. The confusion, I would submit, stems from the ambiguous nature of the term "remedial.” The distress sale program is not "remedial” in the narrow sense in which that term is sometimes used: its purpose is not to compensate particular minority individuals for past injustices by providing them with increased economic opportunities in broadcasting. It is, however, “remedial” in a broader sense: it seeks to address (or remedy) a societal problem (the under-representation of minorities in the broadcast field, and the consequent lack of diverse programming) which has been caused by past racial discrimination. I therefore believe that the Supreme Court’s repeated references to the broad remedial powers of Congress bolster congressional authority to implement this program as a means of enhancing diversity. See supra, pp. 941-43.