concurring:
I join fully in the reasoning of the majority and write separately only to state my views on the preemption question posed by this case. Although appellee New York Airlines, Inc., (“New York Air”) apparently raised this defense in some form below, the District Court did not feel constrained to address the issue in light of its views on the merits. Inexplicably, in its brief to this court, New York Air relegated the preemption issue to a cursory reference in a footnote, citing no statutory or decisional authority in support of its position; the appellant saw no need even to respond to an argument so casually advanced. Under the circumstances, I have no quarrel with the majority’s conclusion that the issue of preemption was not fit for disposition on appeal.
I do wish to underscore, however, that our decision today should not be read as a sign that we approve of a district court decision on the merits of a claim like the one brought by the appellant. The preemption question in this case is substantial. Section 1305(a)(1) of Title 49 of the United States Code provides that “no State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier” (emphasis added). This court in Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C.Cir.1987), and at least two other circuit courts of appeals, see Illinois Corporate Travel v. American Airlines, 889 F.2d 751, 754 (7th Cir.1989); O’Carroll v. American Airlines, 863 F.2d 11, 12 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989), have held that section 1305(a)(1) preempts general common law causes of action as applied to airline “rates, routes, or services.” Enacted as part of the 1978 airline deregulation legislation, section 1305(a)(1) communicates unequivocally Congress’ will that courts refrain from enforcing any manner of state law in these areas.