Mississippi Poultry Association, Inc. v. Edward R. Madigan, Secretary of the United States Department of Agriculture

REAYLEY, Circuit Judge,

dissenting:

The issue is whether Congress used “same” in 21 U.S.C. § 466(d) to mean “equivalent” or “identical.” Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must effectuate Congress’ choice if Congress has “directly spoken to [this] precise question.” Id. at 843, 104 S.Ct. at 2781-82.1 If Congress did not choose between identicality and equivalence, we must respect the Secretary’s interpretation of section 466(d) if it is “reasonable.” Id. at 844, 104 S.Ct. at 2782-83.

The majority holds that Congress chose identicality over equivalence when it enacted section 466(d). My analysis of the evidence relied upon by the majority will not allow the conclusion that Congress chose identicality over equivalence. To the contrary, evidence ignored by the majority establishes that Congress has not chosen between identicality and equivalence.

I. STATUTORY LANGUAGE

The majority professes strict adherence to the words that Congress enacted into law in deciding that Congress precludes the Secretary from reading “same” in section 466(d) to mean “equivalent.” Maj. Op. at 1361, 1363. But, in analyzing statutory language, the majority fails to adhere to a similar case recently decided by the Supreme Court.

In National Ry. Passenger Corp. v. Boston & Maine Corp., — U.S. -, ---, 112 S.Ct. 1394, 1401-02, 118 L.Ed.2d 52 (1992), the Interstate Commerce Commission (ICC) contended that “required” in 45 U.S.C. § 562(d) means “useful or appropriate,” and not “indispensable or necessary” as understood by a railroad company. The Court deferred to ICC under Chevron; I quote the Boston & Me. Court’s analysis in its entirety:

The existence of alternative dictionary definitions of the word “required,” each making some sense under the statute, itself indicates that the statute is open to interpretation. New phrases in a complex scheme of regulation are so clear as to be beyond the need for interpretation when applied in a real context. Further, the structure of the provision reinforces our conclusion that [the statute is ambiguous].

Id. at -, 112 S.Ct. at 1402 (citation omitted); see also Young v. Community Nutrition Institute, 476 U.S. 974, 981, 106 S.Ct. 2360, 2364-65, 90 L.Ed.2d 959 (1986) (The *1369court of appeals erred in holding that “shall” must mean “mandatory” and in refusing to defer to an agency’s reading of “shall” to confer a modicum of discretion.); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 4 L.Ed. 579 (1819) (Marshall, C.J.) (“Necessary” in the Constitution’s Necessary and Proper Clause means “convenient, or useful,” not “most direct and simple.”). The inadequacy of the majority’s statutory-language analysis is seen by comparing it to Boston & Maine.

The majority equivocates as to whether “same” can mean “equivalent.” See Maj. Op. at 1364 (“We fail to see the distinction” between “identical” and “same.”); id. (“[A]ny fair reading of the dictionary definition of ‘the same’ overwhelmingly demonstrates that ‘the same’ is congruent with ‘identical.’ ”). If the majority intimates that “same” cannot mean “equivalent,” it disregards authoritative lexigraphic sources in doing so. Webster recognizes both “identical” and “equivalent” as synonyms of “same,” and defines “same” as, inter alia, “something identical with or similar to another,” “closely similar,” “comparable,” and “not different in relevant essentials.” Webster’s Third New Inter’l Dictionary 2007 (1986). Black’s Law Dictionary explains: “The word ‘same’ ... does not always mean ‘identical.’ It frequently means of the kind or species, not the specific thing.” Black’s Law Dictionary 1340 (6th ed. 1992); see also id. (“Equivalent” is a synonym of “same.”). Alabama’s Supreme Court has interpreted “same” in a statute to mean “equivalent.” Sullivan v. Teague, 424 So.2d 574, 577 (Ala.1982) (“[W]e hold the term ‘same class’ as used in [an Alabama statute] to encompass the term ‘comparable class.’ ”).

In support of its intimation that “same” must mean “identical,” the majority draws a distinction between “primary” and “secondary” dictionary definitions. Maj. Op. at 1364. Where does this distinction come from and what does it mean? The majority does not base this nonsensical distinction on any authority. I cannot imagine that the majority favors interpreting statutes by choosing the first definition that appears in a dictionary. The Boston & Maine Court only looked for “alternative” dictionary definitions. — U.S. at -, 112 S.Ct. at 1402; see also Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991) (“The word ‘under’ has many dictionary definitions and must draw its meaning from its context.”).

The only other support that the majority offers for its intimation that “same” must mean “identical” is that Webster defines “identical” as meaning “the same.” Maj. Op. at 1364 n. 32, citing Webster at 1122. This definition of “identical” is not surprising, see id. at 2320 (a “synonym” is “a word having the same meaning as another word”), or relevant. We are only presently concerned with what “same” means. Had Congress placed “identical” in section 466(d) instead of “same,” this case would not exist. The majority must concede that “same” can mean either “identical” or “equivalent.”

The only remaining question under Boston & Maine is whether the alternative dictionary definitions “mak[e] sense under the statute.” — U.S. at -, 112 S.Ct. at 1402. I disagree with what the majority construes the Boston & Maine Court to have meant by this phrase. The majority holds that “equivalence” does not “make sense” under section 466(d) because canons of statutory construction establish that an interpretation of “same” to mean “equivalent” would be inconsistent with the structure of the Poultry Products Inspection Act (PPIA).2 Maj. Op. at 1363-1364. But the Boston & Maine Court did not require alternate dictionary definitions to survive a statutory structural analysis before they may “mak[e] some sense under the statute.” Two sentences after the Court states its “making some sense” qualification, the Court adds: “Further, the structure of the provision reinforces our conclusion .... ” Boston & Maine, — U.S. at -, 112 S.Ct. at 1402 (emphasis added). By choosing “further” and “reinforces,” the Court indicates that structural arguments are completely distinct from arguments concerning whether an alternative dictionary definition “mak[es] some sense under the statute.” In its haste to adhere to the statutory language of section 466(d), the majority *1370ignores the Court’s language in Boston & Maine.

Consistent with all of the Court’s language in Boston & Me., “mak[e] some sense under the statute” means that alternative dictionary definitions must each have a rational effect under the statute to be considered possibilities for agency choice. Id. (“[A] reviewing court need not accept an interpretation which is unreasonable.”); accord Chevron, 467 U.S. at 844, 104 S.Ct. at 2783 (Where Congress has not decided an issue in delegating authority to an agency, courts are to defer to the agency’s choice “[i]f this choice represents a reasonable accommodation of conflicting policies....”). Neither the majority nor the district court hold, nor do the plaintiff trade associations even argue, that section 466(d) would have an irrational effect if “same” means “equivalent.” Under Boston & Maine, this rationality should end our analysis of this case.

Still, any refutation of the majority’s opinion would be incomplete without addressing the point upon which the majority bases its decision: when “same” in section 466(d) is read within the structure of the entire PPIA, it must mean “identical” and cannot mean “equivalent.” Maj. Op. at 1363-1364. I have two responses. Structural arguments support both possible definitions of “same” in section 466(d). More importantly, the ones cited by the majority do not prove that Congress chose identicality over equivalence.

A. Other Appearances of “Same”

The majority cites 21 U.S.C. § 453(y),3 and argues that because Congress used “same” in section 453 to mean “identical,” and sections 453(y) and 466(d) both fall within the PPIA, Congress also meant “same” in section 466(d) to mean “identical.” Maj. Op. at 1363-1364. But, even if “same” means “identical” in other sections of the PPIA,4 this does not mean that Congress chose between identicality and equivalence in section 466(d). A statutory term can have various meanings even within a single statute. The Supreme Court recently held that “allowed secured claim” in 11 U.S.C. § 506 means something different in subsection (d) than it does in subsection (a). Dewsnup v. Timm, — U.S. -, -- -, 112 S.Ct. 773, 778-79, 116 L.Ed.2d 903 (1992). The Court did not presume that “allowed secured claim” must mean the exact same thing in subsections of the same statute. Instead, the Court looked to the “practical effect” of the different possible interpretations, pre-Bankruptcy-Code practice, and the absence of any evidence of congressional intent to change pre-Code practice. Id. A majority of the Dewsnup Court rejected Justice Sealia’s articulation of the very argument that the majority here attempts to resuscitate.

Nonetheless, I wish to discuss Justice Sea-lia’s Dewsnup dissent because it shows that even if the Dewsnup Court had chosen to follow the authority cited by Justice Scalia, that, authority does not support the majority’s view of this case. Justice Scalia accuses the Dewsnup majority of ignoring the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning,” and lists cases in which the Court developed this rule. Id. at ---, 112 S.Ct. at 780-81.

The Court first explicitly adopted the identical-language rule from English jurisprudence in Atlantic Cleaners & Dryers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608-09, 76 L.Ed. 1204 (1932). But the Atlantic Cleaners Court did not stop with the portion cited by Justice Scalia and relied upon by the majority here. It continues,

the presumption [that identical words used in different parts of the same act are intended to have the same meaning] is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were em*1371ployed in different parts of the act with different intent. Where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, ... the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.

Id.; accord Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 85, 55 S.Ct. 50, 51, 79 L.Ed. 211 (1934).5

The majority’s application of the identical-language rule cannot withstand Atlantic Cleaners analysis. In section 466(d), Congress used “same” to state which substantive standards foreign poultry producers must meet. The majority relies upon “same” in section 453(y), where Congress used “same” as a shorthand way to define terms.6 The “subject matter to which [‘same’] refer[s],” see id., in section 466(d) is dissimilar to the subject matter to which “same” refers elsewhere in the PPIA.7 Even if the identical-language rule espoused by Justice Scalia survives Dewsnup, the majority fails to explain how that rule can apply in this case, where no evidence links congressional intent in choosing “same” for sections 453(y), 454(c), and 460(e), with its intent in choosing “same” for section 466(d).

To support its use of the identical-language rule, the majority exclusively relies upon Ardestani, — U.S. at —, 112 S.Ct. at 519. Assuming arguendo that Ardestani remains good law after Dewsnup, Ardestani does not control this case. The Ardestani Court rejected an undocumented woman’s claim that she was entitled to attorney’s fees and costs under the Equal Access to Justice Act (EAJA). Id. at -, 112 S.Ct. at 521. EAJA funds are only available to parties who prevail against the government in “adversary adjudications,” which 5 U.S.C. § 504(b)(l)(C)(i) defines as adjudications conducted “under section 554” of the Administrative Procedure Act (APA). Immigration proceedings are not governed by the APA, but they are required by the Immigration and Nationality Act (INA) to be determined on the record after opportunity for a hearing. This “record hearing” requirement of the INA is similar to the “record hearing” requirement in APA § 554(a). Ardestani argued that “the phrase ‘under section 554’ encompasses all adjudications ‘as defined in’ § 554(a), even if they are not governed by the procedural provisions established in the remainder of that section.” Ardestani — U.S. at -, 112 S.Ct. at 519 (emphasis added). The Court rejected this argument after holding the phrase “under section 554” unambiguous within the context of the EAJA. Id.

The majority relies on the Ardestani Court’s brief allusion to the identical-language rule, which I quote in its entirety:

As one court has observed, the word “under” appears several times in the EAJA *1372itself, and “[i]n other locations, no creative reading is possible — ‘under’ means ‘subject [or pursuant] to’ or ‘by reason of the authority of.’ ”

Id. (quoting St. Louis Fuel and Supply Co. v. FERC, 890 F.2d 446, 450 (D.C.Cir.1989)). In a footnote, the Court lists three appearances of “under” within the EAJA where “under” means “subject to.” Id. — U.S. at —, 112 S.Ct. at 519 n. 2.

The majority relies on this language to hold that “[w]hen only one meaning of a word can be used consistently throughout the statute, that meaning is plain and unambiguous.” Maj. Op. at 1363 (exclusively citing Ardesta-ni ). But the Ardestani Court never states such a broad proposition; nothing in Ardes-tani indicates that the identical-language rule was dispositive of the ambiguity question in that case. In fact, several other factors entered into the Court’s decision that “under” in section 504(b)(l)(C)(i) means “subject to,” not “as defined by.” First, the Court stressed that the “plain and ordinary” meaning of “under” as used in the EAJA is “subject to.” Id. at -, 112 S.Ct. at 519. Unlike this case, the alternate definition of “under” urged by Ardestani — “as defined in” — is not readily apparent from any dictionary definition of “under.” See Webster’s at 2487. Second, Ardestani asked the Court to construe “under section 554” to mean “as defined in section 554(a),” thus ignoring “the procedural provisions established in the remainder of [section 554].” Ardestani, — U.S. at -, 112 S.Ct. at 519. Thus, as a matter of context — because Congress said “554” and not “554(a)” — the Court could not credit Ardestani’s definition of “under.” Finally, the Court relied on the rule that sovereign immunity waivers “must be strictly construed in favor of the United States” in holding that “under” means “subject to.” Id. at -, 112 S.Ct. at 520. These alternate reasons for the Court’s decision, coupled with the absence of any indication of how much the Court relied on its allusion to the identical-language rule, render Ardestani incapable of supporting the majority’s dispositive use of the identical-language rule.

Even assuming arguendo that Ardestani rests entirely upon the identical-language rule, Ardestani still does not help the majority. The Ardestani Court demonstrates that Congress used “under” for a consistent purpose throughout the EAJA: to limit the operation of EAJA rules to EAJA awards. Id. at —, 112 S.Ct. at 519 n. 2. Neither the majority nor the plaintiffs make any attempt under Atlantic Cleaners to show that “same” is used in the PPIA with a consistent purpose.

For all of these independent reasons, the majority errs in holding that the identical-language rule is dispositive of Chevron’s threshold question. The rule has no application in this case, where Congress understandably uses a common word for several different purposes.

B. Other Appearances of “Equal”

The majority also claims structural support for reading “same” to mean “identical” in the fact that Congress requires states to adopt poultry inspection requirements that are “at least equal to” federal standards. 21 U.S.C. §§ 454(c), 460(e). The majority relies on Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983), in which the Court states: “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. at 23, 104 S.Ct. at 300 (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). According to the majority, sections 454(c) and 460(e) show that Congress knew how to adopt an equivalence standard for extra-federal inspection schemes, and the fact that Congress used “same” instead of “at least equal to” in section 466(d) shows that Congress intended something other than an equivalence standard. Maj. Op. at 1363-1364.

But differences exist between the international and state poultry regulation schemes. A state’s noncompliance with the “at least equal to” standard of sections 454(c) and 460(e) only subjects the state’s poultry producers to federal regulations, while a foreign government that fails to meet the “same” standard of section 466(d) completely forfeits the possibility of exporting poultry to the *1373United States. Thus, the extra-federal standards that the majority would construe together affect governments with different degrees of sovereignty in very different ways.

Even assuming arguendo that the majority’s reasoning supports its conclusion, the majority’s analogous-statute rule cannot be determinative in this case because it supports the opposite conclusion as well. The federal inspection standard for the importation of foreign meat represents a much closer analogy to section 466(d) than state poultry inspection standards. See 21 U.S.C.A. § 620(f) (West Supp.1993). Like section 466(d), section 620(f) affects foreign governments by banning the importation of meat that is not inspected according to the statutory standard. Id. The standard that Congress adopted in section 620(f) disposes of the majority’s Russello argument:

meat food products of cattle, sheep, swine, goats horses, mules, or other equines, capable of use as human food, offered for importation into the United States shall be subject to the inspection, sanitary, quality, species verification, and residue standards applied to products produced in the United States.

Id. (emphasis added). Congress requires imported meat to be inspected according to “the” domestic standards, not according to standards that are the “same” or ones that are “at least equal to” domestic standards.8 Thus, by the majority’s own reasoning, section 620(f) shows that Congress knew how to adopt an identicality standard, and Congress failed to do so in section 466(d). If section 620(f) is not dispositive of this case, it at least renders the majority’s analogy to state import standards inconclusive.

The majority has overlooked many other important points in its analysis of sections 454(c) and 460(e). Under the majority’s view, section 466(d) holds foreign governments to an identicality standard, and sections 454(e) and 460(e) hold state governments to an equivalence standard. Maj. Op. at 1364-1365 & n. 28. But, if this is true, it raises a whole new problem of interpretation in section 466(d), which requires foreign poultry to “be subject to the same inspection ... standards applied to products produced in the United States.” Id. (emphasis added). If the majority is correct that sections 454(c) and 460(e) compel us to define “same” in section 466(d) as “identical,” then I ask: identical to what? Section 466(d) answers: identical to the standards .“applied to products produced in the United States,” which, by the majority’s own reasoning, include both federal standards and equivalent state standards. Thus, whether “same” means “identical” or “equivalent” under the majority’s reasoning, a foreign government complies with section 466(d) by establishing standards that are “at least equal to” federal standards.

The Secretary argues that sections 454(c) and 460(e) are not dispositive of congressional intent in enacting section 466(d) because the former two statutes address different concerns than section 466(d), and a different Congress enacted section 466(d) 17 years after sections 454(c) and 460(e). The majority dismisses this argument without citing any authority by stating: “We presume ... that Congress knows the content of the statute it is amending.” Maj. Op. at 1364 n. 28. The majority’s disregard of the differences raised by the Secretary contradicts the writing of the Supreme Court and this circuit. See Erlenbaugh, 409 U.S. at 243, 93 S.Ct. at 480 (The rule that “a legislative body generally uses a particular word with a consistent meaning in a given context ... certainly makes the most sense when the statutes were enacted by the same legislative body at the same time.”); Mattox v. FTC, 752 F.2d 116, 122 (5th Cir.1985) (following Erlenbaugh in refusing to consider an earlier statute in construing a later one because of the time *1374difference in enactment dates and the lack of “necessary identity of purpose”).9

The Secretary’s arguments concerning differences between section 466(d) and sections 454(c) and 460(e) have merit independent of section 620(f) and the practical consequence of the majority’s use of sections 454(c) and 460(e). “[Rjelated statutes will vary in probative value” according to the “range of awareness” of the statutes among legislators. Norman J. Singer, 2B Sutherland Statutory Construction § 51.01, at 117 (5th ed. 1992); see also id. at 118 (“The critical question concerns how reasonable it is to assume that legislators ... know the provisions of other acts on the same subject when they consider the meaning of the act to be construed.”); id. (“[I]t is unrealistic to assume that whenever the legislature passes a statute it has in mind all prior acts relating to the same subject matter.”). In the seventeen years that passed between enactment of sections 454(c) and 460(e) in 1968 and enactment of section 466(d) in 1985, Congress changed membership eight times and congressional districts were twice redrawn. Congress, of course, considered many disparate issues in the interim. For these reasons, the seventeen-year difference in this ease is not different in kind from the 62-year difference that this court considered significant in Mattox. 752 F.2d at 122. The import of sections 454(c) and 460(e) in interpreting section 466(d) is further minimized by the fact that, as discussed above, these statutes affect different governments in different ways than does section 466(d). See Erlenbaugh, 409 U.S. at 245, 93 S.Ct. at 481 (rejecting in pan materia argument because “[t]he two statutes ... play different roles in achieving [a] broad, common goal”). Finally, sections 454(c) and 460(e) are entitled to little weight because they are relatively few (two), and they are not consistent with section 620(f). Cf. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390, 59 S.Ct. 516, 518-19, 83 L.Ed. 784 (1939) (In recognizing that the Regional Agricultural Credit Corporation was amenable to suit despite the lack of statutory language to support this rule, the Court accorded substantial weight to the fact that Congress had created “not less than forty ... corporations” by statute, and “without exception” had included the authority to sue-and-be-sued.) (emphasis added).

For these manifold reasons, sections 454(c) and 460(e) do not indicate that Congress chose identically over equivalence.10

C. PPIA Section 451

In describing the statutory structure in which Congress placed “same” in section 466(d), the majority ignores an argument that contravenes its decision. In 21 U.S.C. § 451, Congress bases the entire PPIA on its finding that “[ujnwholesome, adulterated, or misbranded poultry products” hurt people and destroy markets for poultry. In my Part II analysis of the policy implications of section 466(d), I explain that the Secretary’s interpretation of “same” to mean “equivalent” results in wholesomeness, absence-of-adulteration, and proper-marking qualities which meet or better the results of an identically standard. See Part H.B., infra.11 In *1375fact, the only result of substituting an identi-cality standard for the Secretary’s equivalence standard is to erect a trade barrier, as the majority recognizes. See Maj. Op. at 1365.

While the majority claims to strictly adhere to the principle that words “take their purport from the setting in which they are used,” see id. Maj. Op. at 1363 (quoting King v. St. Vincent’s Hosp., — U.S. —, —, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991)), it ignores the fact that section 466(d) appears in a poultry-inspection act which is expressly based upon Congress’ exclusive finding that unwholesome, adulterated, and misbranded poultry must be eliminated to protect people and poultry markets. 21 U.S.C. § 451. Where is the majority’s explanation of how an identicality standard is consistent -with section 451?

My analysis of the extant structural arguments shows that the ones relied upon by the majority are inconclusive, and the section 451 argument indicates that Congress did not choose identicality. Thus, even under the majority’s understanding of “make[s] some sense,” the Secretary’s interpretation of “same” is entitled to deference under Boston & Maine. See — U.S. at -, 112 S.Ct. at 1402. And although Boston & Me. renders analysis of the legislative history and policy of section 466(d) unnecessary, these considerations confirm that Congress did not choose between identicality and equivalence in enacting section 466(d). So I do not stop with statutory text.

II. LEGISLATIVE HISTORY AND POLICY

The majority’s solution to embarrassing arguments that stem from the legislative history and policy behind section 466(d) is to label section 466(d) “unambiguous,” and ignore the parts of the legislative history which do not support its conclusion. Compare Maj. Op. at 1363-1364 n. 28 (refusing to consider the Secretary’s legislative-history argument) with id. Maj. Op. at 1364-1365, 1368 (relying upon legislative history formed after section 466(d) was enacted). So, before presenting the whole legislative history in the context of the policy behind section 466(d), I will substantiate why I reach legislative history and policy.

A. The Unambiguous-Statute Bar

The majority recasts Chevron’s threshold inquiry as whether “the language of the statute is determined to be either ambiguous or silent” on the choice between identicality and equivalence. Maj. Op. at 1363 (emphasis added).12 By so transforming the inquiry, the majority justifies avoiding the legislative history of section 466(d), id. Maj. Op. at 1363-1364 n. 28, and the policy implications of construing section 466(d) to adopt an identicality standard. Id. Maj. Op. at 1365. To excuse its exclusion of legislative history and policy, the majority relies on a passage from Connecticut National Bank v. Germain, — U.S. —, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992): “[w]hen the words of a statute are unambiguous, ... ‘judicial inquiry is complete.’ ” Id. at —, 112 S.Ct. at 1149 (quoting Rubin v. United States, 449 U.S. 424, 428, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981)); see Maj. Op. at 1363.

For three independent reasons, Germain does not limit this court’s ability to fully consider legislative history and policy in this case. Foremost, as I have demonstrated, “same” does not have a singular meaning even within the structure of the PPIA. See Part I, supra.

Second, Germain and the cases from which it is derived say nothing about whether courts may consider legislative history and policy to answer the threshold question in Chevron. These cases only state a canon of construction that presupposes a finding of no ambiguity. See Germain, — U.S. at —, 112 S.Ct. at 1149; Toibb v. Radloff, — U.S. —, —, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991); United States v. Ron Pair Enters., 489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Burlington Northe*1376rn Ry. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987).

In the Germain line of cases, parties attempt to use sources other than statutory text to contradict what everyone agrees a statute says. See Germain, — U.S. at ---, 112 S.Ct. at 1149-50 (no need to consider the argument “that legislative history points to a different result” when there was no argument about what statutory text says); Toibb, — U.S. at -, 111 S.Ct. at 2200 (no need to address argument that legislative history and structure engraft a requirement which proponent acknowledges is absent from statutory text); Ron Pair, 489 U.S. at 242-45, 109 S.Ct. at 1031-33 (unnecessary to consider argument that pre-statuto-ry practice should alter meaning of unambiguous statutory text); Burlington Northern, 481 U.S. at 462, 107 S.Ct. at 1860-61 (legislative history “irrelevant” after Court finds no legitimate challenge to the text’s meaning). By contrast, the Secretary offers evidence of legislative history and policy to show that Congress did not choose between identieality and equivalence in enacting section 466(d).13 The line of cases that Germain exemplifies is inapposite. Neither the majority, nor the district court, nor the plaintiffs cite any authority for the proposition that legislative history and policy are irrelevant to whether a statute’s text is ambiguous. Cf. Chevron, 467 U.S. at 859-65, 104 S.Ct. at 2790-93 (considering whether Congress directly spoke to the precise question at issue under the subheadings “Statutory Language,” “Legislative History,” and “Policy”).

Finally, even if the majority believes that it may not rely on legislative history and policy to decide this case, I question why it has not followed the Supreme Court’s custom of treating legislative history and policy arguments even after declaring a statute unambiguous. See Germain, — U.S. at -, 112 S.Ct. at 1149 (rejecting the policy argument that Congress would not enact redundant statutes “[bjecause giving effect to both ... would not render one or the other wholly superfluous” before applying the unambiguous-statute rule) (emphasis added); id. at -, 112 S.Ct. at 1150 (Stevens, J., concurring) (rejecting legislative-history argument on the merits that the Germain majority refused to consider); Toibb, — U.S. at -, 111 S.Ct. at 2200-01 (discussing merits of legislative-history and policy arguments after stating that the unambiguous-statute rule applies); Ron Pair, 489 U.S. at 245, 109 S.Ct. at 1033 (discussing merits of argument based on pre-statutory practice after stating unambiguous-statute rule). But see Burlington Northern, 481 U.S. at 462, 107 S.Ct. at 1860-61 (no legislative-history discussion after statute found unambiguous). Courts of Appeals have been no less reticent in considering the merits of legislative-history and policy arguments even after finding a statute unambiguous. See, e.g., In re Kelly, 841 F.2d 908, 912-13 & nn. 3-4 (9th Cir.1988); Doctors Hospital, Inc. of Plantation v. Bowen, 811 F.2d 1448, 1453 (11th Cir.1987).

These cases establish that a court risks nothing by discussing the merits of legislative-history and policy arguments even after declaring a statute unambiguous, and that such discussions represent appropriate responses to parties’ concerns on appeal. A court can only strengthen its analysis by explaining how its construction is consistent with legislative-history and policy arguments. Thus, the Court has explained: “When aid to construction of the meaning of words, as used in [a] statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976) (quoting United States v. American Trucking Ass’ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940)). Even the Germain majority characterized “canons of *1377construction,” including the unambiguous-statute rule, as “no more than rules of thumb that help courts determine the meaning of legislation.” — U.S. at -, 112 S.Ct. at 1149.

A rule that precludes courts from considering legislative history and policy when construing statutes amounts to a quasi-eviden-tiary limitation. But rather than hold that a lower court has considered improper evidence of statutory meaning, a reviewing court merely decides for itself what a statute means. See Chevron, 467 U.S. at 841, 104 S.Ct. at 2781 (de novo determination of whether Congress addressed a disputed point in a statute). Given this de novo review, evidentiary limitations are pointless. Thus, while the Court has found that a lower court has erred by refusing to consider legislative history in discerning a statute’s meaning, Train, 426 U.S. at 9, 96 S.Ct. at 1942, the Court has not held that a lower court has erred because it considered excessive evidence of statutory meaning.

The majority’s decision to ignore considerations of legislative history and policy in this case is indefensible.

B. Affirmative Evidence of the Absence of Choice

Legislative history and policy together affirmatively establish that Congress has not “directly spoken to the precise question” of whether “same” means “identical” or “equivalent” in section 466(d). See Chevron, 467 U.S. at 841, 104 S.Ct. at 2781. The only rational policy effect of choosing identicality over equivalence is that fewer foreign birds will enter the United States under an identi-cality standard than would enter under an equivalence standard.14 By definition, the Secretary’s equivalence standard results in poultry that is at least as safe and correctly-packaged as that produced under federal standards.15 See 54 Fed.Reg. 43948, 43951 (Oct. 30, 1989) (“The quality of the finished product is what is important and decisive.”). If Congress chose between identicality and equivalence in enacting section 466(d) as the majority holds, it must have done so because of the trade implications of an identicality standard. No one suggests another reason.16 But there is no record anywhere of any congressional consideration of the trade implications of an identicality standard before Congress passed section 466(d). This wholesale lack of attention to the only rational policy difference between identicality and equivalence establishes that Congress never chose between identicality and equivalence. Cf. Dewsnup, — U.S. at ——, 112 S.Ct. at 779 (The “Court has been reluctant to accept arguments that would interpret the [Bankruptcy] Code ... to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history.”).

The majority evades this critical point with the truism that neither courts nor agencies can alter policy choices made by Congress. See Maj. Op. at 1365. This truism does not alter the fact that we sit to determine whether Congress has in fact made a policy choice, regardless of the merit of that choice. I *1378would decide this case according to the simple logic that if Congress wanted to erect a trade barrier, someone, somewhere, would have said something about why a barrier was justified, what it was supposed to accomplish, or how its effectiveness would be monitored.

The majority conveniently omits any explanation of how “same” came to appear in section 466(d). From 1972 to 1984, the Secretary certified countries to export poultry products to the United States if they adopted certain standards that were “at least equal to” the standards applicable to establishments operating within the United States. 9 C.F.R. § 381.196(a)(2)(iv) (1984). The Secretary certified Canada, France, Great Britain, Hong Kong, and Israel using its “at least equal to” standard. 54 Fed.Reg. at 43950. There is no record anywhere of congressional criticism of the existence or application of the equivalence standard before Congress passed section 466(d). In 1985, the Senate Committee on Agriculture, Nutrition, and Forestry included what was to become section 466(d) as part of the 1985 Farm Bill. The Agriculture Committee intended to “strengthen present law regulating the importation of poultry” by requiring poultry-exporting countries to implement programs for testing residues, which was not required of imported poultry before 1985, but had been required of imported meat since 1981. S.Rep. No. 99-145, 99th Cong., 1st Sess. 339-40 (1985), reprinted in 3 U.S.C.C.A.N. at 2005-06 (1985); see also 54 Fed.Reg. at 43950. The Agriculture Committee did not criticize the Secretary’s long-established equivalence standard, or adduce any evidence against it. Instead, the Agriculture Committee sent the 1985 Farm Bill to the full Senate with the equivalence standard intact. Id. at 516, reprinted in 3 U.S.C.C.A.N. at 2182 (1985).

While the 1985 Farm Bill was under consideration on the Senate floor, Senator Helms offered an amendment which substituted “the same as” for “at least equal to” in the portion of the 1985 Farm Bill that became section 466(d). Senator Helms explained that his amendment was “purely technical” and intended to “clarif[y] the provision to reflect the original intent of the provision as adopted by the committee in markup.” 131 Cong.Rec. 33358 (Nov. 22, 1985). Without any debate, further explanation, or recorded vote, the Senate adopted Senator Helms’s amendment. A conference committee adopted the Senate’s version of what became section 466(d) without any recorded consideration of the effect of Senator Helms’s amendment. H.R.Conf.Rep. No. 99-447, 99th Cong., 1st Sess. 583-84 (1985), reprinted in 3 U.S.C.C.A.N. at 2509-10 (1985).

Either Senator Helms meant to incorporate an identicality standard in section 466(d) by amending the statute to use “same,” or he did not intend to incorporate an identicality standard. He did not affirmatively indicate that he desired an identicality standard or that he wanted to change the substance of the Agriculture Committee’s equivalence standard. Nor did he mention the trade consequences of a substantive change. Instead, he said that he wanted the provision to reflect the Agriculture Committee’s “original intent,” which it expressed in an equivalence standard. See S.Rep. No. 99-145 at 516, reprinted in 3 U.S.C.C.A.N. at 2182 (1985). These points indicate that Senator Helms did not subjectively desire an identicality standard.

But even if Senator Helms harbored this subjective intent, are we to attribute it to Congress as an institution when Senator Helms indicated that his amendment was of minimal importance, failed to call Congress’ attention to the major trade consequences of such an interpretation of the amendment, and most importantly, used equivocal language to institute an identicality standard? The facts of this case provide no basis on which to hold that Congress “directly spoke[ ] to the precise question” of whether section 466(d) mandates identicality. See Chevron, 467 U.S. at 841, 104 S.Ct. at 2781.

Predictably, the majority turns to section 2507 of the 1990 Farm Bill, where Congress declares that its “sense” is to “urge” the Secretary to substitute “same” for the equivalence standard challenged in this case. Maj. Op. at 1364 (referencing the Food, Agriculture, Conservation, and Trade Act of 1990, Pub.L. No. 101-624 § 2507, 104 Stat. 3359, 4068-69 (1990)). But a careful study of section 2507 and its background teaches that section 2507 better explains why the Secre*1379tary clings to an equivalence standard rather than adopting the position that the majority would have him take.

Section 2507 undeniably has the force of federal law. See President George Bush, Statement at the Signing of the 1990 Farm Bill, 1990 U.S.C.C.A.N. 5762. But by its own terms, this “law” only states a fact that the 101st Congress believes to be true and makes a suggestion to the Secretary. The plaintiffs do not contend that Congress established an identicality standard in section 2507; in their complaint, they only seek a declaratory judgment that 9 C.F.R. § 381.-196 is inconsistent with the PPIA, which includes section 466(d) and does not include section 2507.

The plaintiffs contend that the intent of the 101st Congress as expressed in the 1990 Farm Bill is relevant to determine what the intent of the 99th Congress was in drafting the 1985 Farm Bill. The Supreme Court’s most recent pronouncement on the value of subsequent legislative history is absolute: “it is the function of the courts and not the Legislature ... to say what an enacted statute means.” Pierce v. Underwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 2551, 101 L.Ed.2d 490 (1988) (refusing to consider a 1985 House Report that directly contradicts the Court’s reading of a 1980 statute). And although the Court has cited subsequent legislative history to support its decisions before Pierce, it has only done so in cases where the job of statutory construction has fallen to the Court.17 I am aware of no case where any court has held that subsequent legislative history is at all relevant to cases like this one, where, rather than determine what a statute means, we must determine “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. Even the most unambiguous intent in 1990 cannot establish the intent of a different group of people five years earlier.18 Section 2507 has no bearing on our present inquiry.

Ironically, Congress’ 1990 advice to the Secretary provides insight into why the Secretary’s equivalence standard is necessary. The Secretary’s equivalence standard permits a modicum of subjectivity in the Secretary’s determination of whether foreign standards are the same as United States standards. See 54 Fed.Reg. at 43950. Under an .identicality standard as advocated by the plaintiffs here, foreign poultry would be completely banned unless another country is willing to adopt our standards word-for-word. Id. Besides the cultural affront and practical difficulties that an identicality standard would entail, of itself it does nothing to ensure safe poultry.19 Congress recognized exactly this problem with identicality when it enacted section 2507:

The Managers [of section 2507] understand and appreciate that technical requirements might differ in other countries because of custom, practicality, or compelling local needs, and the Secretary should have the flexibility to accept as being in compliance *1380with United States requirements those technical deviations that can be justified. For example, the color of dye used for identifying condemned products or the materials used for knives and other slaughter and processing implements would be of little consequence to the ultimate food safety objective, and, if different as between the United States and a country seeking export certification should not interfere with such certification.

H.R.Conf.Rep. 916, 101st Cong., 2d Sess. 1222 (1990), reprinted in 1990 U.S.C.C.A.N. 4656, 5747. Thus, in section 2507, Congress told the Secretary that his equivalence standard was wrong, but in the legislative history of section 2507, Congress vindicated the Secretary’s reason for adopting an equivalence standard. Nowhere in section 2507 or its history does Congress suggest that the Secretary adopt an identicality standard, even though the Secretary publicly explained in 1989 that he understood his choices to be between identicality and equivalence. See 54 Fed.Reg. at 43950. Instead of helping the Secretary interpret “same,” Section 2507 and its history simply “urge” the Secretary to adopt a “same” standard, and to ignore technical deviations from this standard. But the Secretary understood his equivalence standard to operate just like a “same” standard that permits various technical deviations. If Congress demands something different, it has yet to say so.

III. CONCLUSION

Professor Singer aptly describes what the majority has done:

The assertion in a judicial, opinion that a statute needs no interpretation because it is “clear and unambiguous” is in reality evidence that the court has already considered and construed the act. It may also signify that the court is unwilling to consider evidence bearing on the question how the statute should be construed, and is instead declaring its effect on the basis of the judge’s own uninstructed and unration-alized impression of its meaning.

Norman J. Singer, 2A Sutherland Statutory Construction § 45.02, at 6. The majority cannot pretend to be instructed about whether Congress chose between identicality and equivalence because it turns a blind eye toward dispositive evidence of whether Congress made this choice. Worse, the majority’s loose application of construction rules cannot support its assertion of statutory precision.

The decision of what “same” means should remain with the Secretary until Congress says otherwise, and no one contends that the Secretary’s choice has an unreasonable effect. I would reverse the district court’s decision and render judgment for the Secretary.

I dissent.

. See also id. (Congressional intent "with respect to the specific issue” must be "clear” and "unambiguously expressed” before courts may ignore "an agency's construction of the statute which it administers.”).

. 21 U.S.C. §§ 451 et seq.

. Section 453(y) provides: " 'pesticide chemical,’ 'food additive,' ‘color additive,' and ‘raw agricultural commodity' shall have the same meanings for purposes of this Act as under the Federal Food, Drug, and Cosmetic Act.”

. The defendants also find "same” in other PPIA provisions: 21 U.S.C. § 454(c)(1) ("same extent” and "same manner”); 21 U.S.C.A. § 454(c)(2) (West Supp.1993) ("same person”); and 21 U.S.C. § 460(e) ("same extent” and "same manner").

. The Atlantic Cleaners Court's full expression of the identical-language rule complements the Court’s oft-cited "rule of in pari materia ...: a legislative body generally uses a particular word with a consistent meaning in a given context.” Erlenbaugh v. United States, 409 U.S. 239, 243, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972).

. In §§ 454(c)(1) and 460(e), Congress uses "same” to indicate how and when poultry producers are to comply with certain standards. In § 454(c)(2), "same” refers to who must own a restaurant for the operators to escape poultry inspection requirements. By contrast, in section 466(d), "same” refers to which standards foreign producers must meet. I also note that neither the majority nor the plaintiffs explain why "same” in §§ 454(c)(1), 454(c)(2), and 460(e) must mean "identical.”

.It is no surprise that "same” refers to many different things in the PPIA, because "same” is a common comparative, not a "term-of-art.” By contrast, Dewsnup and the cases relied upon by Justice Scalia concern whether uncommon, technical terms must be given identical meanings throughout a statute. See Dewsnup, -U.S. at -, 112 S.Ct. at 780 ("allowed secured claim"); Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) ("child support”); Sorenson v. Secretary of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606-07, 89 L.Ed.2d 855 (1986) ("child support”); Helvering, 293 U.S. at 85, 55 S.Ct. at 51 ("obligation”); Atlantic Cleaners, 286 U.S. at 431, 52 S.Ct. at 608 ("trade or commerce”); see also Patterson v. Shumate, - U.S. -, ---, 112 S.Ct. 2242, 2246-47, 119 L.Ed.2d 519 (1992) ("applicable nonbankruptcy law”); Doctors Hospital, Inc. of Plantation v. Bowen, 811 F.2d 1448, 1452 (11th Cir. 1987) ("amount of the payment”).

. Even under the stronger identicality language of section 620(f), the Secretary still imposes an equivalence standard on foreign meat-inspection requirements. See 9 C.F.R. § 327.2(a)(1) (For an export certificate, foreign governments must enforce meat-inspection "requirements at least equal to all the inspection, building construction standards, and all other provisions of” federal law.). I am aware of no challenge to this regulation that is similar to the one in this case. Of course, I take no position on the legitimacy of § 327.2(a)(1).

. See also Jones v. St. Louis-San Francisco Ry. Co., 728 F.2d 257, 262 (6th Cir.1984) (The rule that "when Congress enacts a new statute, it is aware of all previously enacted statutes pertaining to the same subject” applies with greatest strength when the two statutes at issue were enacted by the same legislative body, at the same time.).

. The majority does not even claim, much less establish with authority, that sections 454(c) and 460(e) are or can be dispositive of congressional intent in enacting section 466(d). Cf. In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 650, 98 S.Ct. 2053, 2065 n. 32, 56 L.Ed.2d 591 (1978) ("since § 15(7) is in all respects in pari materia with §§ 316(g), 907(g), and 1006(e), the plain meaning of the latter sections should be given significant weight in construing the former”).

.Section 451 demonstrates how policy is relevant to the determination of whether section 466(d) is ambiguous. See Part II.A., infra (Courts may consider policy and legislative history to determine whether statutory language is ambiguous.). Unlike the majority, the district court even considered legislative history to be relevant in its determination that section 466(d) is not ambiguous. See Mississippi Poultry Ass'n v. Madigan, 790 F.Supp. 1283, 1288-89 (S.D.Miss.1992) (Section 466(d) is not ambiguous because, inter alia, the Secretary required foreign poultry to meet an equivalence standard for years before Congress adopted the "same” standard in 1985.). Although I disagree with the conclusions that the district court draws from the legislative history, see Part II.B., infra, I agree that legislative history helps us ascertain *1375whether Congress chose between identicality and equivalence in enacting section 466(d).

. See also id. Maj. Op. at 1361 ("Finding the language employed by Congress both clear and unambiguous, we conclude ... that we owe no ... deference to the Secretary’s interpretation.”).

. In Germain, Toibb, Ron Pair, Burlington Northern, and similar cases, the parties called on the Court to interpret the statute. But in Chevron cases, the threshold question is whether a court should defer to an agency’s interpretation of a statute. The Chevron Court listed nine examples of cases where the Court has stated or applied the rule that the Court will not defer to an agency interpretation which contravenes the clear intent of Congress. 467 U.S. at 843 n. 9, 104 S.Ct. at 2781-82 n. 9. In these nine cases, the Court routinely considered policy and legislative history without ever mentioning an unambiguous-statute rule.

. As the majority says, section 466(d) effects "protectionism ... undoubtedly, in response to effective lobbying by domestic poultry producers.” Maj. Op. at 1365.

. The plaintiffs concede that identicality would preclude foreign nations from adopting standards that result in safer poultry products than those produced under United States standards. Moreover, they do not challenge any application of an equivalence standard; they only argue that the Secretary's equivalence standard in 9 C.F.R. § 381.196(a)(2)(i) is facially inconsistent with Congress' use of "same” in section 466(d).

. There is no record of any dissatisfaction with the safety of foreign poultry under an equivalence standard until after Congress passed section 466(d) and the Secretary proposed to retain its equivalence standard. See 54 Fed.Reg. at 43950 (rejecting post-section 466(d) arguments that an equivalence standard would result in inferior products entering the United States). The record in this case contains no evidence of inferior foreign poultry products entering the United States as a result of an equivalence standard.

The plaintiffs take the following position in this appeal; "The purpose of section [466(d)] was to require importers of foreign poultry products to be subject to the same standards that domestic poultry processors experience.” Mississippi Poultry Ass’n Brief at 26. This makes no sense as a statement of purpose; the plaintiffs erroneously conflate means and purpose to avoid admitting that trade is the only policy difference between identicality and equivalence.

. See Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 2194, 76 L.Ed.2d 312 (1983) ("Of course, the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value.”). But see Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 2061 n. 13, 64 L.Ed.2d 766 (1980) ("[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960)); United Air Lines, Inc. v. McMann, 434 U.S. 192, 201, 98 S.Ct. 444, 449, 54 L.Ed.2d 402 (1977) ("Legislative observations 10 years after passage of the Act are in no sense part of the legislative history.").

. Neither the plaintiffs nor the majority contend that Congress satisfied Chevron’s threshold inquiry for the first time in 1990 by enacting section 2507. See Maj. Op. at 1364; Mississippi Poultry Ass’n Brief at 40. Such a reading would accord section 2507 an effect which directly contravenes its language. Section 2507 is undeniably preca-tory. It "urg[es] the Secretary ... to promulgate a new regulation reflecting the intention of the Congress.” Congress could have replaced “same" in section 466(d) with "identical” once it realized in 1990 that the Secretary interpreted "same" to mean "equivalent,” but it did not. Moreover, I am aware of no case in which a court has permitted Congress to satisfy Chevron’s threshold inquiry after the disputed statute has been enacted.

.At oral argument, the Secretary’s counsel explained that under an identicality standard, foreign countries would have to specify building dimensions in feet even though most of our neighbors use the metric system.