dissenting:
The court today strikes down an important governing authority and tells the U.S. Congress that it may not pass legislation permitting the federal government and the governments of Virginia and the District of Columbia to share responsibility for the operation of Washington’s two major airports. Ignoring the time-honored canons that counsel restraint in constitutional interposition, the court destroys the carefully crafted plan for governance that Congress devised, creating an obstacle course to federalism that no Supreme Court precedent requires. I would affirm the district court’s decision granting summary judgment in favor of the Metropolitan Washington Airports Authority (the “Authority”). Citizens for the Abatement of Aircraft Noise, Inc. v. Metropolitan Washington Airports Authority, 718 F.Supp. 974 (D.D.C.1989).
I.
The majority’s fundamental error is its failure to honor the cardinal rule of statutory interpretation that courts should construe statutes so as to avoid rather than implicate constitutional questions. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (citation omitted)); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979) (explaining that “an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available”). Indeed, such a rule of construction has long influenced this Circuit’s jurisprudence. See, e.g., Galliano v. U.S. Postal Service, 836 F.2d 1362, 1369 (D.C.Cir.1988); Hastings v. Judicial Conference of U.S., 829 F.2d 91, 101-02 (D.C.Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Loveday v. FCC, 707 F.2d 1443, 1459 n. 24 (D.C.Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 525, 78 L.Ed.2d 709 (1983). As the Supreme Court has stated specifically with regard to separation of powers challenges: “When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, ... it should only do so for the most compelling constitutional reasons.” Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 661, 102 L.Ed.2d 714 (1989) (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 3193, 92 L.Ed.2d 583 (1986) (Stevens, J., concurring)). I find no such “compelling constitutional reasons” in this case to justify the majority’s departure from the traditional rule of restraint.
II.
Congress created neither the Authority nor its Board of Review (the “Board”). Both of those entities were created by the actions of Virginia and the District of Columbia. The court decides, however, that because the federal Airports Act (the “Act”) describes the Board’s composition and its power to veto certain Authority actions, the Board is a federal entity wielding federal powers, subject to separation of powers constraints. Although my primary disagreement with the court concerns its actual application of separation of powers principles to the facts of this case, I also question the court’s characterization of the Board as a federal entity. It is certainly possible to view the Board as the district court did: The Airports Act authorizes the Secretary of Transportation to lease Dulles and National Airports to “a properly constituted independent airport authority created by the Commonwealth of Virginia and the District of Columbia,” 49 U.S.C.App. §§ 2452(a), 2454(a) (1988), and establishes certain conditions concerning the Board of Review that must be contained within the *59lease. 49 U.S.C.App. § 2456(f), (h). Both the Commonwealth of Virginia and the District of Columbia passed the requisite enabling legislation for the regional Authority, whose bylaws in turn establish the Board of Review and define its powers and composition. The fact that the federal Act authorizing the transfer of the airports to the Authority contemplates the Board’s creation does not alter the Board’s fundamental state parentage. If the Board derives its power from state law, then separation of powers principles — at least those that divide and allocate the sovereign power of the federal government among the three branches — would not constrain its actions.
III.
Even assuming, however, that the Board of Review is a federal entity exercising federal power, I do not believe that it violates constitutional separation of powers principles. The court, adopting Bowsher as “the relevant touchstone,” finds the Board unconstitutional because it exercises “quintessentially executive” functions while under the control of Congress. Maj.Op. at 56. The court’s conclusion that the Board is controlled by Congress rests on: (1) its concern about the appointment of legislators to the Board from lists provided by congressional leaders; and, most importantly, (2) Congress’ alleged possession of removal power. I examine each concern in turn.
A. The Appointment Process
Under Article IV, Section 1 of the Authority’s bylaws and Section 2456(f)(1) of the Act, the Authority’s board of directors is empowered to establish a nine-member Board of Review composed of two members each from the House Appropriations Committee, the House Public Works and Transportation Committee, the Senate Appropriations Committee, and the Senate Commerce, Science and Transportation Committee, as well as one additional member of the House or Senate. The board of directors appoints the members from lists provided by the Speaker of the House and the President pro tempore of the Senate. The Board of Review members serve in their “individual capacities, as representatives of [the airports’] users.” 49 U.S.C. App. § 2456(f)(1); Bylaw Article IV, Section 1.
The mere fact that congressional leaders submit lists of proposed Board candidates to the Authority does not, as the district court noted, raise constitutional concerns. See Citizens for the Abatement of Aircraft Noise, 718 F.Supp. at 984 & n. 16. The Supreme Court has previously confronted such limited lists without suggesting that they violate separation of powers principles. See Bowsher, 478 U.S. at 727, 106 S.Ct. at 3188 (President nominates Comptroller General from list of three individuals recommended by Speaker of the House and President pro tempore of the Senate); Mistretta, 488 U.S. at 368, 410 n. 31, 109 S.Ct. at 652, 674 n. 31 (Judicial Conference submits list of six judges, from which President appoints at least three to the Sentencing Commission).
Instead, what troubles the majority is the Board’s composition. The court essentially holds that, because Board members also serve on congressional committees “directly concerned with the formulation of ... policies affecting commercial aviation,” their decisions with respect to the Authority will be dictated by congressional goals and interests. See Maj.Op. at 56-57. I disagree with the court’s assertion that members of congressional transportation and appropriations committees may not constitutionally serve in their individual capacities as representatives of airport users. In Mistretta, the Supreme Court found no absolute constitutional prohibition against federal judges serving as members of the United States Sentencing Commission, a body alleged to exercise legislative authority through its promulgation of sentencing guidelines. See 488 U.S. at 383-84, 404, 109 S.Ct. at 660-61, 671. The Court’s analysis of the judges’ dual responsibilities is particularly illuminating:
The judges serve on the Sentencing Commission not pursuant to their status and authority as Article III judges, but solely *60because of their appointment by the President as the Act directs. Such power as these judges wield as Commissioners is not judicial power; it is administrative power derived from the enabling legislation____ [T]he judges, uniquely qualified on the subject of sentencing, assume a wholly administrative role upon entering into the deliberations of the Commission.
Mistretta, 488 U.S. at 404, 109 S.Ct. at 671. The Court’s reasoning in Mistretta is directly applicable here to the Board of Review: members of Congress, particularly qualified on the subjects of commercial aviation and institutional operations, serve in an individual administrative — not legislative — capacity when they review the Authority’s actions.
It is gratuitous to assume that committee membership automatically leads to congressional control. We should not presume that Board members will tailor their decision-making to congressional desires when there is no statutory requirement that Board members consult with any committee of Congress, or that the Board’s actions be subject to any kind of congressional oversight. The Board of Review’s appointment process simply violates no constitutional separation of powers principles heretofore articulated.
B. Removal Power
As the court itself recognizes, locating removal power is central to separation of powers analysis. See Bowsher, 478 U.S. at 727, 106 S.Ct. at 3188 (“The critical factor [in determining that the Comptroller General is subservient to Congress] lies in the provisions of the statute ... relating to removability.”); Maj.Op. at 57. In Bowsher, a federal statute provided that the Comptroller General could be removed for a variety of causes, but only through congressional impeachment or resolution. Here, by contrast, the federal Act and the Authority’s bylaws are silent as to removal procedures for Board of Review members. Despite the absence of a factual predicate, the court nevertheless analogizes this case to Bowsher. It notes that the Board is composed of members of specified congressional committees, and concludes that Congress effectively exercises removal power over the Board through its ability to “remove any of its members from any committee at any time.” Maj.Op. at 57. I believe that this interpretation is seriously flawed.
First, the court relies heavily on language from Bowsher stating that constitutionality cannot turn on judicial assessments of whether an officer “is on good terms with Congress”; the court also quotes Bowsher’s conclusion that “the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.” Maj.Op. at 57 (quoting Bowsher, 478 U.S. at 730, 106 S.Ct. at 3190). The clear import of the court’s quotation is that the Board members stand in the same “subservient” relationship to Congress as the Comptroller General in Bowsher. As noted above, however, the relevant statutory schemes are strikingly different: whereas Congress was authorized to remove the Comptroller General by a variety of methods and for a variety of causes, the Airports Act vests no removal power in Congress whatsoever. In the quoted excerpt from Bowsher, Chief Justice Burger was simply responding to. the dissent’s argument that Congress was unlikely ever to exercise its (clearly possessed) removal power; he did not have before him a situation, like this, where the very locus of the removal power was a matter of dispute. Thus, the court’s citation of Bowsher is both misleading and analytically unsound.
Second, I disagree with the court’s analysis of the removal power. As the district court noted, well-established rules of statutory construction suggest that, “ ‘absent a specific provision to the contrary, the power of removal from office is incident to the power of appointment.’ ” Citizens for the Abatement of Aircraft Noise, 718 F.Supp. at 984 & n. 14 (quoting Carlucci v. Doe, 488 U.S. 93, 99, 109 S.Ct. 407, 672, 102 L.Ed.2d 395 (1988) (internal quotation omitted)). Under this interpretation, the Authority’s board of directors — not Congress- — -would possess removal power over the Board of Review. See also Metrópoli*61tan Washington Airports Authority Resolutions Nos. 87-12, 87-27 (establishing that “the Board of Directors may remove for cause an appointee to the Board of Review prior to the conclusion of his term”).
Third, the court’s interpretation is unpersuasive even on its own terms. The statute provides only that the Board of Review shall “consist” of members of the specified congressional committees. 49 U.S.C.App. § 2456(f)(1). In light of the Ashwander principle, cited above, that courts should construe statutes to avoid constitutional infirmities where possible, we should not read the Act to prohibit a Board member who serves on the appropriate committee at the time of her appointment and later leaves the committee — or even loses a bid for reelection — from serving out her full Board term. The fact that the standard term of service on the Board of Review is six years, see 49 U.S.C.App. § 2456(f)(2), thus spanning three Congresses, further supports the notion that a Board member's tenure need not correlate with his or her congressional status.
IV.
I would affirm the district court’s grant of summary judgment for the Authority. Unlike the panel, I find no constitutional infirmities in the appointment process for Board members: Bowsher and Mistretta addressed similar procedures without invalidating them, and the mere fact that members of Congress serve on the Board in their individual capacities does not present a constitutionally adequate distinction. Nor do I find any problems with removal power over Board members: the statutory silence in this case is very different from the explicit authority possessed by Congress in Bowsher, and plausible alternative constructions exist under which removal power rests with the Authority’s board of directors. The declaratory and injunctive relief the court today orders — preventing the Authority from taking any actions (such as bond issuances, or adoption of a budget or master plan) for which Board of Review approval is statutorily required— thwarts local control over and planning for the airports. I see no reason for this court to reach the drastic result of invalidating a delicately-balanced and innovative institution of federalism on separation of powers grounds when plausible — indeed more plausible — alternative interpretations would sustain the Board of Review as constitutional.