dissenting:
In 1970, Congress undertook a radical reorganization of the court system of the District of Columbia. It created an autonomous local judicial system and announced that from then on “[t]he highest court of the District of Columbia is the District of Columbia Court of Appeals.”1 In the years that have followed, this court, by *384virtue of the Court Reorganization Act, as reinforced by the Home Rule Act,2 has been thrust in the role of the final expositor of District of Columbia law. See Gillis v. United States, 400 A.2d 311, 313 (D.C.1979); Reichman v. Franklin Simon Corp., 392 A.2d 9 (D.C.1978).3
Today the majority of the “highest court of the District of Columbia” reaches a remarkable conclusion. It decides that this court is prohibited from following its own prior interpretation of the District of Columbia Workmen’s Compensation Act of 1928 (hereinafter “DCWA” or “1928 Act”).4 See DiNicola v. George Hyman Construction Co., 407 A.2d 670 (D.C.1979). This is because, reasons the majority, the Supreme Court, some five years after DiNicola, reached a “conflicting” result in interpreting the Longshore and Harbor Workers’ Compensation Act of 1927 (hereinafter “LHWCA” or “1927 Act”)5 in ruling upon facts arising in the District of Columbia. See Washington Metropolitan Area Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984).
The majority recognizes that the Supreme Court of the United States “has chosen” to treat decisions of the District of Columbia Court of Appeals on questions of local law “in a manner similar to the way in which [it] treat[s] decisions of the highest court of a State on questions of state law.” Majority opinion at 380 (citing Pernell v. Southall Realty, 416 U.S. 363, 368, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974) (footnote omitted)). Uneasy, no doubt, with the appellants’ argument that the Supreme Court in Johnson erred in not following its principle of deference, the majority volunteers its own rationale: Johnson, says the majority, “squarely rejected” DiNicola because deference to DiNicola would have been “inappropriate” — on the surface an interesting conclusion since Johnson says nothing about rejecting DiNicola, failing to defer to, or overruling District of Columbia law.6
To the majority’s credit, its reasoning does not hinge solely upon a knee-jerk reaction to the history of the District of Columbia’s hybrid existence. It instead focuses upon isolated language in the case of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), to the effect that “[a]cts of Congress affecting only the District, like other federal laws, certainly come within [the Supreme] Court’s Art. Ill jurisdiction,” id. at 687,100 S.Ct. at 1435 (emphasis added) and reasons therefrom that the Supreme Court may reject decisions of this court interpreting local laws passed by Congress. To the extent that the “power" of the Supreme Court to review (as opposed to the “appropriateness” of deference) may be relevant to meet the majority’s analysis, I need not question the proposition that the Supreme Court is not constitutionally barred from reviewing the decisions of the District of Columbia Court of Appeals interpreting acts passed by Congress, in the same sense that the Supreme Court would be barred from reviewing a state court’s interpretation of a state statute. Id. at 687-88, 100 S.Ct. at 1435. I feel compelled, nevertheless, not to shirk from suggesting, however delicately, that it is not at all clear that acts of Congress affecting only the District are “laws of the United States” within the meaning of Article III.7 Congress, in legis*385lating for the District, acts pursuant to its constitutional powers under Art. I, § 8, cl. 17, which grants the Congress the power of “exclusive legislation in all cases” in the District.8 Congress’ federal powers and its powers under clause 17 are “two distinct classes of legislative powers.... [Laws passed pursuant to the clause 17 powers] are not laws of the United States.” American Security & Trust Co. v. Rudolph, 38 App.D.C. 32, 45 (1912).9 See O’Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1140 n. 11 (D.C.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986); see also Gary v. United States, 499 A.2d 815, 850 (D.C.1985) (en banc) (Mack, J., dissenting) (when Congress acts as a national legislature, it is but one actor among three, but when it acts on a local scale, it “ ‘encompasses the full authority of government ... the Executive and Judicial powers as well as the Legislative’ ” (emphasis in original)), cert. denied, 477 U.S. 906, 106 S.Ct. 3279, 91 L.Ed.2d 568 (1986).
I am entitled to be bold in this respect because the Supreme Court, understandably in decisions over the years,10 has not been entirely consistent in its jurisdictional treatment of congressional acts affecting only.the District. And now, in view of the action of the Congress in transferring matters of purely local concern from the United States courts to the District of Columbia courts, I am reasonably sure that the Supreme Court has no burning desire to be thrown into the role of “the highest court of the District of Columbia.” This question, however, can be left for another day, since it is apparent that the majority here, in finding that we are compelled to follow Johnson, has construed Johnson too rigidly, and has totally misconstrued Whalen.
I.
The majority here reads Whalen to stand for the proposition that the Supreme Court need not defer to the District of Columbia courts on matters of local law “when a *386question of general federal law ‘cannot be separated’ from a question of local law” Majority opinion at 381 (citing Whalen, supra, 445 U.S. at 688, 100 S.Ct. at 1435 (emphasis added)). On this basis, the majority concludes that since the local act merely incorporates the provisions of the federal act, construction of the 1928 Act cannot be separated from the LHWCA11 and therefore, the Supreme Court in Johnson owed no deference to this court’s decision in DiNicola. In my view, this is an overly expansive reading of Whalen — one which completely ignores the constitutional underpinnings of that decision.
In Whalen, the petitioner was convicted of rape, and of killing the same victim in the perpetration of rape, and sentenced to separate terms of imprisonment for each conviction. He argued that the sentence for the offense of rape should be vacated since it merged for purposes of punishment with the felony-murder offense. To hold to the contrary, Whalen argued, would be to interpret the District of Columbia statutes so as to impose multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment.12
The Supreme Court, as the majority here correctly points out, noted in Whalen that deference is due to the District of Columbia courts “on matters of purely local concern.” Whalen, supra, 445 U.S. at 687, 100 S.Ct. at 1435 (citing Pemell v. Sout-hall Realty, supra, 416 U.S. at 366, 94 S.Ct. at 1725). But the majority fails to recognize that the Supreme Court, in declining to extend deference in Whalen, found that “petitioner’s claim under the Double Jeopardy Clause [could not] be separated entirely from a resolution of the question of statutory construction.” Whalen, supra, 445 U.S. at 688, 100 S.Ct. at 1435-36 (emphasis added). Thus, in Whalen, the Supreme Court refused to defer to this court’s interpretation of local law because the interpretation of the local law was intertwined with a constitutional *387question; the Court did not suggest that deference is inappropriate where a question of local law cannot be separated from a question of general federal law.13 Whalen therefore cannot be used as a vehicle to compel the conclusion that the Supreme Court in Johnson intended to overrule this court’s interpretation of a local law.
II.
Moreover, Johnson cannot be read as overruling this court’s interpretation of a local law. The language of Johnson simply does not say this; in fact, unless it can be said that a printing or typographical error has intervened, Johnson cites DiNi-cola as representing the majority view which it is predisposed to follow. More significantly, the question of deference to local law was not briefed or argued. In fact, there is no indication that the Johnson Court focused upon the fact that a question of local law was involved. The length to which the majority here strains is apparent in its reasoning — i.e. since the Supreme Court was aware that the controversy in Johnson had arisen in the District of Columbia and since the Court referred only to the provisions of the Longshore Act, the “form of the decision, then, is consistent with the premise that the meaning of relevant provisions of the 1928 Act is identical to the meaning of the same terms viewed solely as provisions of the [LHWCA].” Majority opinion at 382 (emphasis added).14
It is equally true, however, that the form of the decision is consistent with the premise that the Court simply failed to recognize that Johnson involved “an issue of local law.” As the majority here correctly explains, Johnson arose as a result of injuries suffered by employees of subcontractors working for the Washington Metropolitan Area Transit Authority (WMATA) as general contractor. Metro was a massive construction project which led the general contractor, WMATA, to engage several hundred subcontractors, which in turn engaged over a thousand sub-subcontractors. Although not legally required to do so by the 1928 Act, WMATA purchased a “wrap-up” insurance policy covering the employees of all of its subcontractors. WMATA passed on to the subcontractors the cost of the insurance so that although the subcontractors were technically relieved of their normal statutorily-required insurance payments, they did in effect provide such payments. See Johnson, supra, 467 U.S. at 927-30, 104 S.Ct. at 2829-31.
The issue in Johnson was whether WMATA as general contractor was immune from suit. The Supreme Court, based upon the language of the employer’s tort immunity clause in the federal LHWCA held that WMATA was protected from a negligence action by the employee of one of its subcontractors. “[Sections] 4(a) and 5(a) of the LHWCA render a general contractor immune from tort liability provided the contractor has not failed to honor its statutory duty to secure compensation for subcontractor employees when the subcontractor itself has not secured such compensation. So long as general contractors have not defaulted on this statutory obligation to secure back-up compensation for subcontractor employees, they qualify for § 5(a)’s grant of immunity.” *388Johnson, supra, 467 U.S. at 939-40, 104 S.Ct. at 2835.
The Johnson Court did not recite that the controlling law in the case was the 1928 D.C. Act; the DCWCA was mentioned only once in a cursory footnote,15 but then the Court proceeded, without further comment, to interpret the language drawn from the underlying LHWCA. At no point did the Johnson Court address the possible jurisprudential implications of the DCWCA’s status as a local statute.
The Johnson Court also gave no indication that it was in fact interpreting the DCWCA by interpreting the identical provisions of the LHWCA. The Court did not discuss the relationship between the 1928 Act and the LHWCA and nowhere did the Court state that “the meaning of relevant provisions of the 1928 Act is [to be] identical to the meanings of the same terms viewed solely as provisions of the [LHWCA].” Majority opinion at 382. In short, the Court in Johnson simply did not interpret the 1928 Act.
Perhaps one explanation for the Court's analysis in Johnson was the unique overlap of federal and local functions, both administrative and judicial, which until recently existed in the District. For ease of administration, claims for workers’ compensation under the DCWCA had been processed by the federal Department of Labor along with those arising under the LHWCA. See D.C.Code § 36-503 (1973). Consequently, although it was the application of the DCWCA that was actually at issue in Johnson, the petition for review of the compensation order was brought to the United States Court of Appeals for the District of Columbia Circuit, rather than to this court. Given this history, the purely local nature of the governing statute was perhaps somewhat obscured. As a result, the Johnson Court did not afford its normal deference to this court because it did not realize that deference was appropriate. The Court viewed the controlling law as the LHWCA not the DCWCA and thus there was no issue of “purely local concern.”
III.
Even a strict interpretation of a statutory provision ofttimes cannot be divorced from the spectre of accompanying facts. I believe that this is what inadvertently happened in Johnson; I do not believe that the Supreme Court has interpreted the statutory provisions at issue in the instant case and I do not believe we are constrained by conflicting Supreme Court precedent as a result of Johnson.
As to the persuasiveness of the Johnson decision in hindsight, I note that the Court initially conceded the existence of an "ambiguity” in the wording of the LHWCA which rendered the scope of immunity for general contractors “unclear.” It acknowledged that the immunity language “does not effortlessly embrace” general contractors and that a “slightly strained reading” is required to include them as employers at all. Johnson, supra, 467 U.S. at 933-34, 104 S.Ct. at 2832-33. Indeed, the Court very reluctantly departed from its own admonition that in construing the LHWCA “ ‘the wisest course is to adhere closely to what Congress has written.’ ” Id. at 934, 104 S.Ct. at 2833 (citation omitted). Not only was this an admonition, it was a premonition since Johnson’s departure from “the wisest course” was quickly repudiated by Congress:
The Supreme Court in Washington Metropolitan Area Transit Authority v. Johnson, [supra], changed key components of what had widely been regarded as the proper rules governing contractor and subcontractor liability and immunity under the Longshoremen’s and Harbor Workers’ Compensation Act.
* * # * * *
WMATA [v. Johnson], the conferees believe, does not comport with the legislative intent of the Act nor its interpretation from 1927 through 1983. The case *389should not have any precedential effect.t16
Thus, the Congress confirmed that the reasoning and outcome in Johnson did not comport with the philosophy underlying workers’ compensation schemes. I might add that general contractor immunity destroys the quid pro quo of workers’ compensation. See Meiggs v. Associated Builders, 545 A.2d 631, 636 (D.C.1988). Nor does general contractor immunity find support in the argument that it is appropriate since the general contractor bears the cost of the subcontractor employer’s insurance policy in the form of an increased subcontract price. Basic principles of economics teach that the general contractor does not bear this increased cost; the general contractor simply passes the cost on to whomever is on the other side of the contract. DiNicola, supra, 407 A.2d at 674. To apply “ultimate cost” reasoning to support general contractor liability threatens total abolition of an insured workers’ statutorily protected right to sue negligent third parties.
The reasoning of Johnson would also eliminate the incentive for the general contractor, or intermediate contractors between the general contractor and the actual employer, to avoid hazardous conditions in the workplace. As this court recognized in DiNicola, the object of workers’ compensation is not served once insurance has been provided, regardless of who purchased it or whether they were under an obligation to do so. Workers’ compensation benefits are limited by statute; they are not designed to compensate for all of the damages suffered by the injured employee.
IV.
Finally, it seems to me that the outcome so tortuously reached by the majority here is patently unfair. Under the federal LHWCA, injured employees are not barred from suing general contractors; Congress amended the LHWCA to overturn Johnson almost immediately. Likewise, under the District of Columbia Workers’ Compensation Act of 1979,17 which superseded the 1928 Act, general contractors do not have immunity. See Meiggs v. Associated Builders, supra, 545 A.2d at 632. Moreover, if the District of Columbia Council had not passed the 1979 legislation, this issue would not now be before this court. General contractors would not be immune from suit under the federal Act or the local 1928 Act. Congressional amendments to the LHWCA overturning Johnson would have applied to the 1928 Act as well. But the District of Columbia Council did pass the 1979 Act repealing the 1928 Act, and so when Congress repudiated Johnson, there was no 1928 Act to be amended. See O’Connell v. Maryland Steel Erectors, Inc., supra. The majority here accepts the proposition of O’Connell that the Congress in 1984 could not have amended an act which no longer existed. Yet it turns to a general savings statute (1 U.S.C. § 109 (1982); July 30, 1947, ch. 388, 61 Stat. 635) to hold that the “terms” of the 1928 Act are preserved as to appellants and that appellants therefore cannot sue WMATA. We are not reminded that the savings statute preserves liabilities “as they then existed” (here in 1982, the date of repeal), see Keener v. Washington Metropolitan Area Transit Authority, 255 U.S.App.D.C. 148, 800 F.2d 1173 (1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987), and therefore before the Supreme Court’s 1984 decision in Johnson allegedly interpreting the 1928 Act. There is a certain incongruity in the majority’s reasoning that the Congress cannot amend a statute no longer in existence but that the Supreme Court can interpret it. The truth of the matter is that the majority’s analysis “creates” a small class of employees who have no judicial redress against general contractors.18
*390It is a little late in the game for the majority to plead that Congress intended the federal act and the local act to be interpreted identically. In the context of time, the majority’s decision has the practical effect of reaching exactly the opposite result. Congress has spoken as to the meaning of §§ 4 and 5 of the LHWCA; general contractors do not possess immunity. The majority makes the local act comport not with Congress’ understanding of §§ 4 and 5 of the LHWCA but rather with a Supreme Court decision stripped of any “precedential effect.”
In short, I am convinced that the Supreme Court in Johnson did not interpret the local act. Johnson interpreted provisions of the federal act (and that interpretation has been rejected by Congress). If the majority is right, in suggesting that my reasoning constitutes an “end-run,” and in holding that Johnson squarely presented and necessarily decided the local act, it is puzzling why Johnson makes no mention of the repeal of the local act or the savings statute. In my view, therefore, neither Johnson nor Whalen support the majority’s reasoning today that Johnson rejected our interpretation of our decision in DiNi-cola as “inappropriate” and that we are prohibited from following DiNicola.
For these reasons, I would reverse the grant of summary judgment against the Esteps. I would hold that they might go to trial on their complaint against the general contractor, appellee Construction General, Inc., for negligence resulting in alleged permanent injuries suffered by Samuel Es-tep.
. District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub. L. No. 93-198, 87 Stat. 774 (codified at scattered sections of the D.C. Code).
. See also D.C. Code § 11-723 (1987 Supp.) (D.C. Court of Appeals may answer questions certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or the highest appellate court of any state).
. 45 Stat. 600, ch. 12 (codified as amended at D.C. Code §§ 36-501 to -502 (1973)).
. 33 U.S.C. §§ 901 to 950 (1982).
. The trial court ruled that Johnson had "effectively” overruled DiNicola.
. Article III provides: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish_” U.S. Const, art. Ill, § 1. "The Judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States_” Id. § 2 (emphasis added). In this class of cases, "the *385supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Id.
As I suggest, it is not clear that congressional acts affecting only the District are “laws of the United States." But even if they are, it may be that the Court Reorganization Act’s designation of this court as the "highest court of the District of Columbia,” together with Congress’ mandate that the District of Columbia Court of Appeal’s decisions be treated like those of the highest court of a state, constitute a congressional "exception” or "regulation" under Art. Ill, § 2.
.In legislating for the District of Columbia, Congress acts pursuant to its powers under Art. I, § 8, cl. 17 which grants the Congress the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District... as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States....” Clause 17 actually grants three types of power to the Congress: first, the power to extend laws of nationwide application to the District; second, the power to protect national interests there; and third, the power to enact state-like local laws governing District residents. There should be little dispute that laws passed pursuant to the first two types of power are laws of the United States. However, it is not immediately apparent that congressionally passed laws affecting only the District of Columbia "are like other federal laws." This assumes that every law passed by Congress is a law of the United States. For District of Columbia purposes, we cannot equate "federal" and “United States."
. The Court of Appeals of the District of Columbia went on to explain that
Congress is the sole legislative body for the Union, and in a broad sense all of its enactments are laws of the United States. But it has two distinct classes of legislative powers. The general function which it was established to perform is the enactment of laws that operate and govern throughout the United States. By virtue of the cession of the District of Columbia, it became invested with special legislative powers ... to the full extent possessed by [the ceding states].
American Security, supra, 38 App.D.C. at 45. Laws passed pursuant to these powers are not "laws of the United States_” Id.
. In Key v. Doyle, 434 U.S. 59, 98 S.Ct. 280, 54 L.Ed.2d 238 (1977), for example, the Supreme Court held that a congressional enactment of purely local application is not "a ‘statute of the United States’ for [§ 1257(1) jurisdiction] pur-poses_” Id. at 61, 98 S.Ct. at 281. In contrast, in Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), the Court held that where a prisoner sought appeal of his conviction under the D.C. Code as a matter of right (rather than by petition for certiorari), the District of Columbia Code should not be considered a state statute.
. Notwithstanding the fact that the DCWCA merely incorporated the federal act, the DCWCA and the LHWCA remain jurisprudentially distinct. The LHWCA was passed pursuant to Congress' admiralty power; the DCWCA, on the other hand, was passed pursuant to its plenary power to govern the District of Columbia. U.S. Const. art. I, § 8, cl. 17; O’Connell, supra, 495 A.2d at 1140, n. 11. Congress' use of identical language does not alter the local nature of the act. The 1928 Act is a form of “hybrid statute," one which although local in nature borrows the language of a federal statute subject to appropriate modifications. Where hybrid state statutes are involved, interpretation of the underlying federal language does present a federal question which the Supreme Court may answer. However, the highest court of the incorporating state is still free to interpret the state statute in a manner inconsistent with the Supreme Court's interpretation of the underlying federal language. Standard Oil v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942). See C. Wright, The Law of Federal Courts § 107, at 748 (1983) (“where a state statute incorporates federal law by reference, the Supreme Court may review a state court decision as to that statute, pass on the federal question that is incorporated by reference, and remand for the state court to reconsider its interpretation of the statute in light of the Supreme Court's interpretation of the underlying federal law").
Where a hybrid D.C. statute is involved, may the District of Columbia Court of Appeals follow the doctrine of Standard Oil? While the majority concludes that this is a question that it need not answer, it notes that principles of federalism do not compel the Standard Oil result with respect to the District. This is true. However, Congress has designated this court the "highest court of the District of Columbia.” Standard Oil thus might be applicable to the District not because of principles of federalism but because of a Congressional decision.
. In footnote 4, the majority attempts to disengage the local law question (i.e., the question of statutory construction) in Whalen from the constitutional question: "But the question whether Congress intended to allow multiple sentences was logically independent of the fifth amendment bar of courts imposing multiple sentences unless authorized by Congress.” Majority opinion at 381-82 n. 4. Notwithstanding the merits of this argument, the Supreme Court's decision not to defer was based upon a belief that the constitutional question and the local law question were intertwined: “But the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen, supra, 445 U.S. at 688, 100 S.Ct. at 1436. At any rate, the Court repeatedly iterated that the local law question was tied up with a constitutional question. Nowhere did the Court suggest that it was declining to defer because the local law question was tied up with a general question of federal law.
. I would also note that the Whalen standard is not the only one adopted by the Supreme Court with respect to review of District of Columbia Court of Appeals’ interpretations of local law. In Pernell v. Southall Realty, supra, the Court noted that the Court Reform Act supported its "longstanding practice of not overruling the Courts of the District on local law matters ‘save in exceptional situations where egregious error has been committed.'" Id. 416 U.S. at 369, 94 S.Ct. at 1726 (citations omitted). The Johnson court points to no "egregious error” committed by this court in DiNicola.
. It might surprise the Supreme Court to know that, in Johnson, it "implicitly concluded that deference to this court was inappropriate” Majority opinion at 381. In this regard, I am reminded of an apt observation by the Supreme Court:
Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.
Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925) (citations omitted).
. The Supreme Court in footnote 4, refers to the District of Columbia statute: "District of Columbia Code § 36-501 (1973) incorporates the LHWCA, 33 U.S.C. § 901 et seq., to cover employees 'carrying on any employment in the District of Columbia.’” Johnson, supra, 467 U.S. at 928 n. 4, 104 S.Ct. at 2829 n. 4.
. H.R. Conf. Rep. No. 1027, 98th Cong., 2nd Sess. 24 (1984), reprinted in U.S. Code Cong. & Admin. News 2734, 2771, 2774.
. 27 D.C. Reg. 2503, 2507-08 (1980) (as codified at D.C. Code § 36-301 (1981)).
.It is an interesting exercise to note that while we have held that the District of Columbia’s legislative branch could effectively repeal the congressional 1928 Act, see O’Connell, supra, the majority holds today that we, as the District of *390Columbia’s judicial branch, are required to follow an interpretation of the congressional 1928 Act, one repudiated by the Congress.