dissenting, joined by McMILLIAN, Circuit Judge.
I join the dissents of Judges Heaney and Beam. I also express an additional concern relating to the majority opinion: In nullifying the discretion of the district court to depart from the particular cases, this court encourages further detachment of the judiciary from its traditional and vital involvement in individualized sentencing.
Notwithstanding the sentencing guidelines, Congress has made it clear that individualized sentencing remains the hallmark of our criminal justice system. As the legislative history of PL98-473 makes clear:
The Committee does not intend that the guidelines be imposed in a mechanistic fashion. It believes that the sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences. Indeed, the use of sentencing guidelines will actually enhance the individualization of sentences as compared to current law. Under a sentencing guidelines system, the judge is directed to impose sentence after a comprehensive examination of the characteristics of the particular offense and the particular offender. This examination is made on the basis of a presentence report that notes the presence or absence of each relevant offense and offender characteristics. This will assure that the probation officer and the sentencing judge will be able to make informed comparisons between the case at hand and others of a similar nature.
18 U.S.C. § 3235 (Supp. Y, 1987). In establishing the Sentencing Commission, Congress specifically stated that
[t]he purposes of the United States Sentencing Commission are to
(1) establish sentencing policies and practices for the Federal criminal justice system that ...
B. provide certainty and' fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices....
28 U.S.C. § 991(b) (Supp. V, 1987) (emphasis added). As Judge Beam points out, Congress’ intention that sentencing authority be flexible is unequivocally expressed in 18 U.S.C. § 3553 (Supp. V, 1987). There Congress stresses that a court should impose a sentence sufficient to comply with the purposes set forth in the statute, but a sentence not greater than necessary to comply with these purposes. The language of section 3553 and the language of section 991(b)(1) that the sentencing practices provide certainty and fairness, avoid unwarranted disparities, and consider mitigating factors are further evidence that Congress intended the guidelines to act, not as rigid strictures, but as tools to be used by the court when determining an individualized sentence. “The sentencing court may impose a sentence outside the range established by the applicable guideline....” U.S.S.G.A. § 5K2.D.1 Judge Stephen Brey*761er, one of the principal authors of the guidelines, has strongly expressed his agreement that the guidelines authorize departure in “atypical” cases. See Breyer, The Federal Sentencing Guidelines and Key Compromises upon Which They Rest, 17 Hofstra L.Rev. 1, 45-50 (1988).2 The authors of the Sentencing Reform Act did not seek to eliminate judicial discretion. Judges need not and ought not follow the guidelines when aggravating or mitigating circumstances are present in a particular case.
The effect of the majority’s decision is to treat the Commission’s policy statements as acts of Congress, thereby discarding the principles normally applied when reviewing the actions of administrative agencies. See Wright, Bureaucrats & the Administrative Law Perspective on the Federal Sentencing Commission, 79 Calif.L.Rev. 1, 47 (1991). Oddly enough we fail to apply these principles to an agency within our own judicial branch. See Buffone, Control of Arbitrary Sentencing Guidelines: Is Administrative Law the Answer? Fed.Sent.Reporter 137, Nov./Dec. 1991.3
As the Supreme Court observed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), the power of an administrative agency is formulation of policy to fill any gap left by Congress. However, Chevron also makes clear that “[t]he judiciary is the final au*762thority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Id. n. 9. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. at 2782. The majority inexplicably overlooks these principles of statutory construction.
I strongly agree with Judge Beam’s cogent statement that “guideline policy statements should not be construed with such rigidity.” This, of course, is also the primary premise upon which Judge Heaney’s dissent relies. The majority ignores congressional intent and by its inflexible construction further weakens the fundamental role of the article III judge in the sentencing process, thereby imperiling the process of providing individualized sentences.
. The Commission has now promulgated proposed amendments under its rule making power which seeks to emphasize its protection under section 5.K.1 that before the court may consider substantial assistance as a factor allowing departure a motion by the government must be made:
Reason for Amendment: In two recent cases, courts of appeals reached opposite results on the issue of whether, under the policy statement, a court could depart below the guideline range in the absence of a government motion. Neither case involved a mandatory minimum, and neither involved a situation in which the government acted in bad faith or *761breached an agreement; however, in both cases the district court found that the defendant had rendered substantial assistance and, since § 5K1.1 was "only a policy statement," departed below the guideline range. At the appellate level, the Eighth Circuit ultimately upheld the departure {U.S. v. Gutierrez, [908 F.2d 349] No. 89-1950 (8th Cir. Nov. 1, 1990)), while the Eleventh Circuit reversed (U.S. v. Chotas, 913 F.2d 897 (11th Cir.1990)). This amendment is designed to reinforce the view of the Eleventh Circuit that the Commission has adequately considered the mitigating circumstance of substantial assistance by a defendant and has determined that this circumstance should not result in a downward departure absent the prerequisite government motion. At the same time, the amendment is designed to recognize that, where the court finds that the government in bad faith breached an agreement to file the requisite motion, consideration of a departure without a government motion may be warranted.
56 Fed.Reg. 1890 (1991).
Congress has not yet passed this amendment. The Judicial Conference has not taken a position on this question. However, Judge Vincent L. Broderick, Chairperson of the Committee on Criminal Law & Probation Administration of the Judicial Conference of the United States, stated on March 5, 1991, before the Commission the following:
In some districts the major tool to induce bargains is the departure under 5K1.1 for substantial assistance to the government. Our Committee engaged in lengthy consideration of problems created by this guideline. On the issue of whether a motion by the government should be required for this departure (proposed amendment 35), we concluded that requiring a motion would prevent courts from having to make difficult determinations of the extent of a defendant’s cooperation. We are in substantial agreement with the Commission’s resolution of this issue.
Fed.Sentencing Rep. 281, Mar./Apr. 1991.
It seems to me this statement is not responsive to the Commission’s proposal. When sentencing, federal judges have long appraised a defendant’s cooperation or lack thereof. I respectfully submit the court is in a position to accurately judge the objective facts set forth in a PSI or proffered by the defendant. A court can also more objectively appraise the government’s refusal to make a motion where the facts would seem to support a motion being made. Federal judges are continually engaged in "difficult determinations.”
. Judge Breyer is no longer a member of the Commission.
. In a commentary on Professor Wright’s article, Samuel J. Buffone, the authority who was chair of the ABA Criminal Justice Section’s Committee on the Federal Sentencing Guidelines, stated:
Public support for the judicial process is rooted, in part, in a perception of the overall fairness and integrity of the process. The Commission’s placement in the judicial branch argues for application of judicial oversight to ensure that the agency’s decision-making process meets the minimal standards of the judicial branch and will garner similar public support. For there to be intrabranch integrity, judges must have the freedom not to be deferential to an agency within their own branch and to exercise the same critical review of Commission action which they apply to other administrative agency determinations. The Commission does not engage in adjudication and cannot derive legitimacy from the trappings of judicial fairness which have supported other administrative agency actions.
Fed.Sentencing Rep. 137, Nov./Dec. 1991.