concurring.
Although the court’s opinion and reasoning convince me that the government employees in this case made policy decisions they were authorized to make, I write to underscore my position that insufficient government resources alone do not a discretionary function make. I also think that a tension exists in our cases and that the confusion in this area of the law needs to be acknowledged and confronted.
The Federal Tort Claims Act was a response to a growing revelation that the king and his agents could clearly do wrong. See, e.g., Edwin M. Borchard, Governmental Responsibility in Tort, 36 Yale L.J. 1, 39-40 (1926) (“It is not open to doubt that notwithstanding the denial by numerous courts that the maxim, ‘the king can do no wrong,’ has any application to the United States, it has nevertheless furnished the real explanation why exemption of the government, state and federal, from liability in tort has become an apparent axiom of American law.”); Gray v. Bell, 712 F.2d 490, 509-11 (D.C.Cir.1983) (reviewing early twentieth century scholarship regarding government responsibility for torts), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984).
Perhaps because sovereign immunity is inconsistent with American political institutions, the discretionary function cases remain difficult to classify and reconcile. In my view, two distinct lines of cases reach basically opposite results regarding the application of the discretionary function.
The first line of cases takes a less critical approach to evaluating government decision-making regarding safety issues. One could read these cases to suggest that the discretionary function exception applies if a government official could make almost any choice or exercise almost any discretion in a matter that involves limited resources.
In Kiehn v. United States, 984 F.2d 1100 (10th Cir.1993), for example, the plaintiff alleged that the United States was negligent in its rescue operations at a national park. We held that the discretionary function exception protected the government because National Park Service decisions regarding the rescue *794“were probably based upon consideration of such factors as limited personnel and resources, difficulty in communicating with the accident site, lack of knowledge on the specifies of the accident, the remoteness of the accident site and numerous other potential factors.” Id. at 1107. Although I do not want to oversimplify Kiehri s nuanced analysis, our speculation about limited resources could be read to support a low standard for the discretionary function exception. After all, the government must always make hard choices about limited resources. The Fourth Circuit also emphasized the importance of financial considerations to government decision-making by holding that the discretionary function exception protected the government from liability when it hired an independent contractor to provide custodial services. Williams v. United States, 50 F.3d 299, 309-10 (4th Cir.1995).
The Eighth Circuit similarly emphasized the importance of scarce government resources in applying the discretionary function exception in Kirchmann v. United States, 8 F.3d 1273 (8th Cir.1993). In Kirchmann, a Nebraska farmer alleged that the Air Force had negligently contaminated his groundwater while constructing an Atlas missile site. Although clearly sympathetic to the harshness of the result, the Eighth Circuit held that the economic issues surrounding construction implicated the discretionary function exception. Specifically, the Kirchmann court noted that the plaintiff had failed to refute the government argument that it:
had to balance the necessity of completing the construction quickly in support of the national defense, using only 100 Air Force employees, against the desirability of supervising closely the day-to-day operations of the contractors and their 3,500 employees, which would have required more Air Force personnel, more time, and more money.
Id at 1277.
The second line of eases takes a decidedly narrower approach to the discretionary function, explicitly balancing economic and other social concerns with safety issues. In Smith v. United States, 546 F.2d 872 (10th Cir.1976), the government argued that the discretionary function exception protected it from liability for failing to warn visitors at a national park because the government simply had made a decision to conserve the scenery. Judge Holloway, writing for the court, rejected that argument, reasoning that “[i]f we were to accept the Government’s interpretation of the discretionary exception, it is difficult to perceive which duties under tort law could not be avoided by a similar policy decision to ignore them.” Id. at 877. We have also held that the failure to post a sign at a national park does not implicate the discretionary function exception, see Boyd v. United States, 881 F.2d 895, 898 (10th Cir.1989), even though such decisions will inevitably implicate financial issues.
The Ninth Circuit reached a similar conclusion in Routh v. United States, 941 F.2d 853 (9th Cir.1991). In Routh, the plaintiff was injured when a tree fell on him while he was operating heavy equipment for a government contractor. As in Smith and Boyd, the Routh court rejected the general government argument that basic safety issues implicate important economic or social issues and that the discretionary function exception applied in that instance. Id. at 856-57. Significantly, the Routh court rejected the government’s proposal to balance safety and economic issues in a cost-benefit analysis. Id. at 856 n. 3. Instead, the Ninth Circuit closely examined who would bear the costs of improved safety and explicitly balanced the government’s interest in avoiding delay with safety issues. Id. at 856-57.
In my view, Kiehn, Williams, Kirchmann, are inconsistent, at least in tone, with Smith, Boyd, and Routh. While the former line of cases emphasizes the virtually controlling importance of scarce resources, the latter line of eases stands for the proposition that government entities may not escape liability simply by waiving the flag of limited economic resources. By declining to apply the discretionary function exception to instances where the government has not posted a sign or not adequately supervised safety, the latter line of cases recognizes that most government decisions involve tradeoffs and suggests that the economic consequences of a particular government decision do not inevitably implicate the discretionary function. Although it would be difficult to reconcile these cases on *795the facts, I believe that one factor merits special consideration in preventing the discretionary function exception from swallowing the Federal Tort Claims Act. Further, I believe that a recent trend in Constitutional analysis suggests that Congress and the courts may need to reconsider the polices and presumptions of federal government tort law.
First, I believe that courts should take care to determine that a government employee has the authority to make a particular decision before the discretionary function exception applies. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court made a distinction between decisions made at “planning” and “operational” levels. Id. at 42, 73 S.Ct. at 971. Although ostensibly abandoned in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), Justice Sealia and a distinguished commentator continue to apply the planning/operations analysis in some form. In his concurring opinion in Gaubert, Justice Sealia emphasized that whether the government employee had the authority to make the decision at issue is an important question:
Ordinarily, an employee working at the operational level is not responsible for policy decisions, even though policy decisions may be highly relevant to his actions. The dock foreman’s decision to store bags of fertilizer in a highly compact fashion is not protected by this exception because, even if he carefully calculated considerations of cost to the Government vs. safety, it was not his responsibility to ponder such things; the Secretary of Agriculture’s decision to the same effect is protected, because weighing those considerations is his task.
Id. at 335-36, 111 S.Ct. at 1280 (Sealia, J., concurring) (emphasis in original). Justice Sealia further suggested that the presumption that government actions are based upon policy be adjusted based upon the position of the decision-maker. Id. at 337, 111 S.Ct. at 1281. In addition, a commentator has suggested that it continues to be important to distinguish between “those Vho make law or governmental policy and those who do not.’ ” Erwin Chemerinsky, Federal Jurisdiction § 9.2, at 557 (2d ed.1994) (quoting 5 Kenneth Culp Davis, Administrative Law Treatise 73 (2d ed.1984)).
I think Justice Scalia’s approach suggests a helpful qualification upon the discretionary function exception; we must await further exposition by the Supreme Court to see if his concurrence reflects the Court’s view. But it seems that unless courts routinely inquire as to whether government employees have the authority to make the sorts of decisions that result in injuring people, the fact that it is reasonable to view most government decisions as having economic implications could eviscerate the Federal Tort Claims Act. As Justice Scalia’s example suggests, a nonman-agerial employee who, away from the quiet and measured reflection of a budget meeting, decides to compromise safety in order to save government resources may simply be trying to make his or her job easier rather than trying to serve the common good. When a government employee acts in such a manner, Justice Scalia’s argument persuasively suggests that the government should not be entitled to invoke the discretionary function exception to avoid compensating the victims of its actions.
Second, I believe that another factor should bear upon government tort liability. Recent jurisprudential debates suggest that a government tort can constitute a taking. The Supreme Court, some members of Congress, and some citizens seem very concerned with assuring that citizens deprived of their property by Government action be adequately compensated. See, e.g., Dolan v. City of Tigard, — U.S. —, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (holding that land regulation amounted to a taking); S. 135, 104th Cong., 1st Sess. (1995) (Property Rights Litigation Relief Act); Keith Schneider, Fighting to Keep U.S. Rules From Devaluing Land, N.Y. Times, January 9, 1995, at Al.1 One need look no further than Kir-chmann, where the government contaminated the Nebraska farmer’s groundwater while building a missile site, for a good example of a taking by tort. From a damages standpoint, it is certainly possible that the government action in Kirchmann that destroyed *796the current use of land is a much more serious devaluation than the development regulations in Dolan that related to future development.2
Interestingly, some scholars now conceptualize government takings as accidents to which they apply economic/insurance analysis and consider who is best able to absorb or distribute the loss. See, e.g., Eric Kades, Avoiding Takings “Accidents, ” A Tort Perspective On Takings Law, 28 U.Rich.L.Rev. 1235 (1994); Saul Levmore, Takings, Torts, and Special Interests, 77 Va.L.Rev. 1333 (1991). I believe that the analogy to tort may be closer than these commentators suggest and that their economic analysis should apply to personal injury as well as real property cases.
. Takings jurisprudence underscores rightful concerns about government actions. See Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985). However, I *796do not share Professor Epstein's hopes for her-meneutically reshaping the Constitution through the Takings Clause. For a critical view of the Epstein approach, see Bernard Schwartz, Main Currents in Legal Thought 576 (1993) ("Epstein's approach is perhaps the most farreaching in contemporary jurisprudence. It would make for a seismic change that would completely transform the relations between public power and property rights.... Epstein sees the Takings Clause as the true center of the legal universe.”).
. Gaubert's declaration that government employees are presumed to act based upon policy grounds when they exercise discretion and that they are therefore excused from otherwise tor-tious conduct, Gaubert, 499 U.S. at 324-25, 111 S.Ct. at 1274-75, seems inconsistent with the relaxing of the presumption that government business regulations are constitutional in the Fifth Amendment takings context. See Dolan, - U.S. at -, 114 S.Ct. at 2325 (Stevens, J., dissenting); id. at -, 114 S.Ct. at 2320 (discussing Justice Stevens’s concerns regarding presumptions).