concurring in part and concurring in the judgment:
In rejecting OTS’s contention that the court should defer to its construction of 12 U.S.C. § 1818(b)(6)(A)(i) 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), the majority concludes that “[w]e have already held in Wachtel [v. OTS, 982 F.2d 581, 585 (D.C.Cir.1993),] that we owe no such deference to the OTS’s interpretation of § 1818 because that agency shares responsibility for administration of the statute with at least three other agencies.” Majority Opinion at 216. However, Wachtel’s suggestion that deference is inappropriate when more than one agency administers a statute was dictum that relied on distinguishable caselaw. The court has yet to decide the appropriate standard to review the OTS’s construction of this provision of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”)1 pertaining to cease and desist orders, and the court need not do so here. As in Wachtel, the result is the same whether the court applies de novo review or Chevron deference. The statutory language and the legislative history demonstrate that Congress did not intend that retention of money allegedly owed pursuant to a net worth maintenance agreement, by itself, would constitute “unjust enrichment” under § 1818(b)(6)(A)(i).
In Wachtel, a bank holding company sought review of OTS’s order, pursuant to § 1818(b)(1), to make payments based on an alleged agreement to maintain the bank’s net worth. 982 F.2d at 582-83. Although finding neither unjust enrichment nor reckless disregard of banking laws, OTS maintained that it could order the holding company to make the payments under § 1818(b)(1) without making these findings.2 Id. at 585. The *221court rejected OTS’s position as “almost frivolous,” and proceeded to observe that even if Chevron deference were applicable, OTS’s interpretation would fail because the statute was not ambiguous and OTS’s interpretation was arbitrary. Id. While the court suggested that Chevron was inapplicable because OTS administered § 1818 jointly with other agencies, this was unnecessary to the court’s holding that, under any standard of review, OTS’s order was invalid. As dictum, the court’s suggestion in Wachtel is not binding circuit law. See, e.g., Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 897 (D.C.Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 1642, 128 L.Ed.2d 363 (1994).
Although the court has stated that it does not defer to an agency’s construction of a statute interpreted by more than one agency, e.g., Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C.Cir.1993), the cases other than Wachtel itself appear readily distinguishable. For example, in Clinton, 997 F.2d at 913, which involved the Federal Advisory Committee Act, the court cited two cases involving statutes that apply to all agencies. See FLRA v. United States Dep’t of Treasury, 884 F.2d 1446, 1451 (D.C.Cir.1989) (no deference to FLRA’s interpretation of the Freedom of Information Act (“FOIA”) and the Privacy Act because “the FLRA is not charged with a special duty to interpret” these statutes), cert. denied, 493 U.S. 1055, 110 S.Ct. 863, 107 L.Ed.2d 947 (1990); Reporters Comm. for Freedom of the Press v. United States Dep’t of Justice, 816 F.2d 730, 734 (D.C.Cir.1987) (no deference to any agency interpretation of FOIA because “it applies to all government agencies, and thus no one executive branch entity is entrusted with its primary interpretation”), rev’d on other grounds, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Similarly, in Wachtel, the court relied on Professional Reactor Operator Soc’y v. United States Nuclear Regulatory Comm’n, 939 F.2d 1047, 1051 (D.C.Cir.1991), in which the court declined to defer to Commission’s interpretation of the Administrative Procedure Act because the statute applies to all agencies and is not within the Commission’s area of expertise. Even more readily distinguished are cases in which the court has declined to defer to an agency’s interpretation of a statute whose administration is entrusted to another agency. E.g., Illinois Nat’l Guard v. FLRA, 854 F.2d 1396, 1400 (D.C.Cir.1988); Department of Treasury v. FLRA 837 F.2d 1163, 1167 (D.C.Cir.1988). At the same time, the court has acknowledged that where two agencies were charged with administering a statute, there “might well be a compelling case to afford deference if it were necessary for decision [where] both agencies agree as to which of them has exclusive jurisdiction.” GF Indus., Inc. v. FERC, 925 F.2d 476, 478 n. 1 (D.C.Cir.1991) (dictum); see also Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 665 n. 6 (Fed.Cir.1992).
Consequently, it appears too facile to conclude that deference is inappropriate simply because more than one agency is involved in administering a statute. The question of whether deference is due more likely depends on the nature of the statute and how Congress has decided it shall be administered. Under FIRREA, Congress provided for joint decisions among the several administering banking agencies on the allocation of transferred functions. FIRREA § 403(b)(1), 103 Stat. 183, 360-61 (1989) (codified at 12 U.S.C. § 1437 note). The statute instructs how to determine the “appropriate” entity for administering provisions of the statute. See 12 U.S.C. § 1813(q)(4) (the Director of OTS is the “appropriate Federal banking agency” “in the case of any savings association or any savings and loan holding company”). As is evident, Congress intended the several agencies that administer FIRREA to agree regarding their respective roles and exercise their expertise accordingly.
Thus, while Wachtel correctly reminds that consideration be given to the fact that more than one agency administers the statute, 982 F.2d at 585 n. 4, deference may nonetheless be appropriate where only expert banking agencies administer the statute and there is no disagreement among them about their respective responsibilities or the agency position under review. See generally Pension *222Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-52, 110 S.Ct. 2668, 2678-79, 110 L.Ed.2d 579 (1990) (“[Practical agency expertise is one of the principal justifications behind Chevron deference.”). Two circuits considering OTS’s administration of the provision at issue here appear, at least implicitly, to agree. Simpson v. OTS, 29 F.3d 1418, 1425 (9th Cir.1994) (applying Chevron deference to OTS’s definition of “reckless disregard for the law” under § 1818(b)(6)(A)(ii)), cert. denied, — U.S. -, 115 S.Ct. 1096, 130 L.Ed.2d 1064 (1995); Akin v. OTS, 950 F.2d 1180, 1184 (5th Cir.1992) (same, for interpretation of cease and desist power under § 1818(b), and applying “arbitrary and eapricious”/abuse of discretion standard to OTS’s determination that an individual had been “unjustly enriched” under § 1818(b) (6) (A)(i)). Another circuit has staked out a middle ground. 1185 Ave. of Ams. Assocs. v. RTC, 22 F.3d 494, 497 (2d Cir.1994) (declining to give “full Chevron deference to the RTC’s interpretation” of 12 U.S.C. § 1821(e) because several other agencies administer FIERRA).
The instant case does not require the court to decide whether Chevron deference should apply to OTS’s interpretation of § 1818(b)(6)(A) because, as in Wachtel, the same result follows whether the court applies de novo review or Chevron deference. Even without reference to the common law definition of unjust enrichment, the legislative history indicates that Congress did not intend the phrase used in § 1818(b)(6)(A)(i.) to encompass the retention of funds owed under a net worth maintenance agreement. See Majority Opinion at 218-19 (citing S.Rep. No. 19, 101st Cong., 1st Sess. 40 (1989); H.R.Rep. No. 54, 101st Cong., 1st Sess. 468 (1989); S.Rep. No. 323, 95th Cong., 1st Sess. 7 (1977)). Hence, OTS failed to prove that Rapaport was unjustly enriched.
Accordingly, notwithstanding the majority’s interpretation of Wachtel and its observations regarding conditions for deference, id. at 216-17, I concur in granting the petition for review.
. Pub.L. No. 101-73, 103 Stat. 183 (codified in scattered sections of U.S.C.)
. OTS also argued that § 1818(b)(6)(A) was inapplicable "because the money it would extract *221from petitioners is not really restitution, reimbursement, indemnification, or guarantee against loss.” 982 F.2d at 585. Here, OTS seeks to recover from Rapaport under § 1818(b)(6)(A).