dissenting:
The four plaintiffs, riding on two jet-skis at speeds between 35 and 50 miles per hour down the center of the Ohio River, went over the Robert C. Byrd dam, plunging 20-25 feet into the water below. They sustained multiple bruises and other soft-tissue injuries. They acknowledge that they were driving down the river for recreational purposes, “goofing off waving at each other” and viewing the scenery. They explain that they went over the dam because they mistook the dam’s superstructure for a bridge. They also assert that they did not see several signs warning of the dam. There were two signs — one on each side of the river approximately 4,000 feet from the dam — one stating “Restricted, No Boats Here to Dam” and the other stating “Restricted, No Boats Beyond This Sign.” There was another sign on a piling in the river approximately 2,000 feet from the dam stating “Restricted, No Boats Beyond This Sign.” Finally, there was a sign on the dam superstructure which simply said “DAM.” Apparently, one of the signs 4,000 feet from the dam was obscured by foliage, but the other signs were visible. The four jet-skiers commenced this action against the United States under the Suits in Admiralty Act, alleging that the United States was negligent in failing adequately to warn them of the dam.
The district court, although rejecting the government’s assertion of sovereign immunity, concluded nonetheless that the government had no duty “to ensure navigable waters are safe or to provide warning devices.” Accordingly, it entered summary judgment in favor of the United States.
In addition to reversing the district court’s decision as to the existence of a duty, the majority holds that the United States does not enjoy sovereign immunity for claims within our admiralty jurisdiction arising out of the federal government’s performance of discretionary functions because the Suits in Admiralty Act does not explicitly provide for such an exception. In rejecting governmental immunity in admiralty for discretionary functions, the majority revives a conflict between this circuit and the ten other circuits that have considered this issue. With regard to the government’s duties, the majority holds that the United States has a duty to the plaintiff jet-skiers, arising out of 33 C.F.R. § 207.300(s), “to conspicuously mark” the restricted area around the dam and a new general maritime law duty “to warn about the dam.” In imposing these new duties on the United States, the majority transforms a regulation designed to protect government property into a safety regulation and overlooks our own circuit’s precedent controlling the general maritime law issue.
Because I would reconcile our inconsistent precedents on the immunity issue in favor of the constitutionally mandated separation-of-powers principles that accord immunity to discretionary actions of the United States, I would order dismissal of the case on that ground. In any event, because I would find no basis to create new maritime duties, I would affirm the district court’s judgment.
I
Based on the confusing and ambivalent state of our circuit’s jurisprudence created *307by three conflicting decisions,1 the district court denied the United States sovereign immunity for claims within its admiralty jurisdiction based on the government’s discretionary conduct. Bypassing an opportunity to correct this problem, the majority now perpetuates it, thereby placing the Fourth Circuit in conflict with the ten other circuits to have considered the issue, a fact that the majority readily acknowledges.
The fundamental presumption relating to governmental liability is that the United States enjoys sovereign immunity unless it expressly waives that immunity by clear and unambiguous language. See, e.g., Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text and will not be implied. Moreover, a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign” (internal citations omitted)). The waiver invoked by the plaintiffs in this case is the Suits in Admiralty Act, 46 U.S.C.App. §§ 741-52, the maritime counterpart to the Federal Tort Claims Act. Under the Suits in Admiralty Act, “[i]n cases where if ... a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States.” 46 U.S.CApp. § 742. Because this Act does not expressly exclude cases involving discretionary governmental functions, as does the Federal Tort Claims Act, the majority concludes that the United States has waived its immunity even for its discretionary actions. The majority never addresses, however, how this interpretation can be advanced in the face of constitutionally based separation-of-powers principles, even though it recognizes the uniformity of decisions in other circuits that apply separation-of-powers principles to recognize the government’s immunity. See ante at 291-92 (citing cases from the First, Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits holding that the discretionary function exception applies to suits brought against the United States under the Suits in Admiralty Act); see also Canadian Transp. Co. v. United States, 663 F.2d 1081, 1085 (D.C.Cir.1980) (same holding). I can find no valid reason why this circuit continues with an aberrant approach that does not even acknowledge the potential applicability of these constitutional principles.
The Suits in Admiralty Act, which grants a limited waiver of the federal government’s sovereign immunity, has a somewhat complicated history, only a portion of which needs to be related here. Although originally passed in 1920, the Act in its present form is the product of a 1960 amendment enacted to address “severe jurisdictional problems facing the plaintiff with a maritime claim against the United States.” United States v. United Continental Tuna Corp., 425 U.S. 164, 172, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976). Prior to the 1960 amendment, a plaintiff with a maritime-related claim against the United States could bring suit under any one of four different statutes, depending on the nature of the claim: The Suits in Admiralty Act, the Public Vessels Act, the Tucker Act, or the Federal Tort Claims Act. Id. at 172-75, 96 S.Ct. 1319. “It was the difficulty in determining the appropriate forum for a maritime claim against the United *308States that moved Congress to amend the Suits in Admiralty Act in 1960.” Id. at 175, 96 S.Ct. 1319. The Supreme Court explained:
Two amendments were designed to clarify the jurisdictional language of the Suits in Admiralty Act. First, the committee added language authorizing suits against the United States where a suit would be maintainable “if a private person or property were involved.” The prior version of the Act had authorized suits against the United States only when suits would be maintainable if the “vessel” or “cargo” were privately owned, operated, or possessed, and that language had generated considerable confusion.
Second, the committee ... deleted the language in the jurisdictional section of the Suits in Admiralty Act requiring that a vessel be “employed as a merchant vessel.”
Id. at 176-77, 96 S.Ct. 1319. The Court went on to explain that the function of the first of these amendments was “to require that those maritime tort claims that were previously cognizable only on the law side of the district courts under the Federal Tort Claims Act now be brought on the admiralty side of the district courts under the Suits in Admiralty Act.” Id. at 176 n. 14, 96 S.Ct. 1319.
This transfer of the statutory basis for the waiver of sovereign immunity for some maritime tort claims from the Federal Tort Claims Act to the Suits in Admiralty Act created the problem at the heart of the present appeal. As the Seventh Circuit explained:
One of the results of the 1960 amendments was to remove maritime claims such as the one at bar [alleging Coast Guard negligence for failure to place a light at the end of a breakwater] from the coverage of the Federal Tort Claims Act (FTCA). However, when the [Suits in Admiralty Act] was amended, the exceptions to the FTCA’s waiver of sovereign immunity set out in 28 U.S.C. § 2680 were not restated in the [Suits in Admiralty Act]. Thus, if the exceptions expressed in 28 U.S.C. § 2680 are not implied in suits under the [Suits in Admiralty Act], the 1960 amendments to the [Suits in Admiralty Act] will have served not only to eliminate jurisdictional difficulties but also to extend the waiver of sovereign immunity in the area of maritime law. This court must determine whether the 1960 amendments to the [Suits in Admiralty Act] were intended to eliminate the discretionary function exception to the waiver of sovereign immunity expressed in the FTCA or whether this exception should be implied into the [Suits in Admiralty Act],
Bearce v. United States, 614 F.2d 556, 558-59 (7th Cir.1980).
The government argues in this case that despite the inartful transfer of the governmental waiver from the Federal Tort Claims Act to the Suits in Admiralty Act, we should apply the discretionary function exception because holding otherwise and “imposing liability upon the basis urged here would involve the court in second-guessing the basic policy decisions of the Corps [of Engineers], in violation of the doctrine of separation of powers — a doctrine that this and other circuits recognize courts must observe ‘even in the absence of an explicit statutory command.’ ” Brief for United States at 29 (quoting Tiffany v. United States, 931 F.2d 271, 276-77 (4th Cir.1991) (internal quotation marks and citation omitted)). I agree with the government’s observations. Moreover, our decision in Tiffany directly supports the government, applying in this circuit the typical formulation that has *309been used in each of the ten other circuits to have addressed this issue. For example, the court in Wiggins v. United States, 799 F.2d 962, 966 (5th Cir.1986), stated:
Without the implication of a discretionary functions exception in the [Suits in Admiralty Act], every decision of a government official cognizable under that Act would be subject to a second-guessing by a court on the claim that the decision was negligent. All the Courts of Appeals which have faced this disruptive and overbearing prospect, with the exception of Lane v. United States [decided by the Fourth Circuit], have recognized the danger and have recognized an implied discretionary function limitation in the [Suits in Admiralty Act], And the Lane case has been severely limited by a later decision of the Fourth Circuit.
See also In re Joint Eastern & Southern Dists. Asbestos Litigation, 891 F.2d 31, 35 (2d Cir.1989) (“Only the Fourth Circuit has failed to limit the [Suits in Admiralty Act] by the discretionary function exception. Subsequently, however, the Fourth Circuit appeared to depart from its stance, so that the Fourth Circuit is no longer on record as having held unassailably that no discretionary function exception is implied in the [Suits in Admiralty Act]” (internal quotation marks and citations omitted)).
The uniformity of the decisions in the other circuits is due in large part to the Supreme Court authority articulating the constitutional foundations of the statutory discretionary function exception in the Federal Tort Claims Act. In particular, the other circuit courts have relied on dictum from United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). In Varig Airlines, the Supreme Court stated, in reviewing the legislative history of the Federal Tort Claims Act:
It was believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction; nevertheless, the specific exception was added to make clear that the Act was not to be extended into the realm of the validity of legislation or discretionary administrative action.
Id. at 810,104 S.Ct. 2755.
And our decisions in Tiffany and Faust v. South Carolina State Highway Department, 721 F.2d 934 (4th Cir.1983), both acknowledge the separation-of-powers underpinnings of the discretionary function exception. Although Faust was decided before Varig Airlines, Tiffany was decided later, and in Tiffany, we explicitly adopted the dictum from Varig Airlines. We stated:
The Supreme Court has further recognized Congress’ belief that “claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). It is plain that the discretionary function exception to tort liability serves separation of powers principles by “preventing] judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 814, 104 S.Ct. 2755.
Tiffany, 931 F.2d at 276.
I would conclude now, based on the circuit precedents of Faust and Tiffany, that we should follow the lead of the Supreme Court and join every other court of appeals to have considered the issue in explicitly recognizing that “[t]he respect for *310separation of powers principles addressed through the discretionary function exception of the FTCA [Federal Tort Claims Act] has been carried over into suits brought under DOHSA [the Death on the High Seas Act] and SAA [the Suits in Admiralty Act].” Tiffany, 931 F.2d at 276.
Accordingly, I would accord the United States in this case sovereign immunity and dismiss this suit on that jurisdictional ground.2
Despite our decisions in Faust and Tiffany decided in 1983 and 1991, respectively, the majority relies on our decision in Lane v. United States, 529 F.2d 175, 179 (4th Cir.1975), which concludes that “[t]here is no basis upon which we can import the many exceptions in the Tort Claims Act into the Suits in Admiralty Act, where the United States is to be accountable in admiralty whenever a private person, in similar circumstances, would be.” Ante at 290-92. The rule in Lane, articulated without exception and without any analysis under separation-of-powers principles, stated that there simply was “no basis” to recognize a discretionary function exception that bars adjudication of claims brought under the Suits in Admiralty Act.
The approach adopted in Lane cannot be reconciled with our approach taken in our two later cases, Faust and Tiffany. Lane provided no discretionary function exception, whereas both Faust and Tiffany recognized the existence of such an exception. It must be noted that Faust muddied the doctrinal waters by first citing Lane with approval, 721 F.2d at 937, and then holding — with no explanation of how its holding could be reconciled with Lane — that the United States would not be subject to liability under the Suits in Admiralty Act for performance of a discretionary function, id. at 939. But Tiffany clarified matters even though it stopped short of stating that Lane had been overruled. The Tiffany ruling recognizes a discretionary function exception applicable to suits brought under the Suits in Admiralty Act.
The plaintiff in Tiffany was the estate of a civilian pilot who was killed when an Air Force jet unintentionally collided with the tip of his plane’s wing after the Air Force jet scrambled to intercept his plane as it entered an air defense identification zone without a flight plan. The estate brought its action under the Death on the High Seas Act, 46 U.S.CApp. §§ 761-68, which provides a cause of action in admiralty for wrongful death occurring on the high seas. The plaintiff alleged that the Air Force was negligent, relying in part on alleged violations of regulations promulgated by the Air Force and the North American Air Defense Command. Id. at 279-82. We rejected the plaintiffs suit as nonjusticia-ble, stating that “[i]f we were to hold that the United States acted negligently in conducting the defense of its eastern border, we would be interjecting tort law into the realm of national security and second-guessing judgments with respect to potentially hostile aircraft that are properly left to the other constituent branches of gov-*311eminent.” Id. at 275. Underlying this holding was our determination that “[t]he respect for separation of powers principles addressed through the discretionary function exception of the [Federal Tort Claims Act] has been carried over into suits brought under DOHSA [the Death on the High Seas Act] and SAA [the Suits in Admiralty Act].” Id. at 276. We explained further that “[o]ur recognition of the constitutional constraints on actions brought under those acts is not a novel phenomenon.” Id. In support of this statement, we relied on Faust, where “this court refused to review a negligence claim in admiralty that challenged the Corps of Engineers’ discretionary issuance of a permit.” Id. at 276-77 (internal citation omitted). Directly addressing the tension that Faust and Tiffany created with Lane, we stated in Tiffany that “Faust necessarily narrowed Lane v. United States and recognized the existence of a discretionary function exception to the Suits in Admiralty Act in some circumstances.” Id. at 277 n. * (internal citation omitted).
The only conclusion, I respectfully submit, that can be drawn from a review of Lane, Faust, and Tiffany taken together is that our precedents are inconsistent. Whereas Lane categorically rejected any discretionary function exception to the Suits in Admiralty Act, Faust appeared to apply such an exception, and Tiffany explicitly did so. Faust and Tiffany apparently deviated from the exceptionless rule of Lane by recognizing “the existence of a discretionary function exception to the Suits in Admiralty Act in some circumstances.”3
Notwithstanding this history, the majority asserts that we are bound by Lane, citing authority in support of the proposition that one panel cannot overrule another panel. See ante at 292-93. That rule, however, is of no help to the majority in the present case because its application of the rule to ignore later panel decisions that deviate from an earlier one amounts to a violation of the very rule it seeks to apply. In other words, the majority’s application of the early exceptionless approach adopted by this court in Lane requires rejection of the later “some circumstances” approach adopted by this court in Faust and Tiffany, and the majority thereby violates the rule that one panel cannot overrule prior decisions of the court. By ignoring the later approach and applying instead an earlier approach that is inconsistent with the later approach, the majority, in effect, overrules two cases adopting the later approach, treating these later cases as ultra vires or otherwise illegitimate. But the majority cannot in this case derive from the rule against one panel overruling another the authority to treat Faust and Tiffany as ultra vires. The most that the majority can say is that the latter two opinions violated a prudential decisionmaking rule adopted by this court. But it does not follow that they were *312therefore decided beyond the power of the court. They remain court precedents.4
When a panel of this court decides a case, that panel decision decides the case for the circuit because the panel is given authority to make decisions for the circuit. See 28 U.S.C. § 46(c) (providing that “[c]ases and controversies shall be heard and determined by a court or panel of not more than three judges ... unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service”). It must follow that a panel has the power to speak for the circuit in modifying or even overruling another panel’s decision. Because a panel has that power, its decision modifying or overruling another panel decision is not ultra vires. Such an exercise of power means simply that the second panel, expressing the law for the circuit, changed the circuit’s mind on the point. Only our prudential decision-making rule suggests otherwise, but that rule does not go to judicial power.
While I do not suggest any retreat from our prudential decision-making rule that one panel cannot overrule another, because that is important to orderly decisionmak-ing by the circuit as a whole, I only note that the.rule is not a descriptive observation about the extent of the panel’s power to decide cases and make law for the circuit. A more precise formulation of our prudential decisionmaking rule would be that one panel ought not to overrule another panel, not that one panel lacks judicial power to overrule the decision of another panel. Accordingly, the majority cannot ignore that Faust and Tiffany made law that applies in this circuit.
When we conclude, as we must here, that several precedents of the circuit are inconsistent with each other, we must resolve the inconsistency by applying the most appropriate legal principles then before the court. See Under Seal v. Under Seal, 326 F.3d 479, 484 (4th Cir.2003) (“[H]ere, where we confront two different rules governing the same question, we are left no option but to choose from between our differing precedents”). But see Booth v. Maryland, 327 F.3d 377, 382-83 (4th Cir.2003) (declining to follow the rule applied in a later case and instead following the rule articulated in earlier cases on the ground that a panel of this circuit cannot overrule a prior panel). In resolving inconsistent precedents, the rule against one panel overruling another simply does not itself resolve what ought to be done. Further, it would make scant sense to derive from that rule a formula for deciding which of inconsistent precedents to follow based only on the respective dates of decision. Always following the earlier case would entail always overruling the later case, in violation of the rule, and would bind the court to a decision without even the opportunity to consider factors either noted for the first time in later cases or relevant currently. And always *313following the later case would trample on whatever vitality of the earlier case may have survived. When we are confronted with ambiguities and inconsistencies in our precedents, we must, I submit, put aside chronology and instead decide substantively how to resolve the ambiguity in a manner that best comports with all of the relevant legal principles.
In our system of applying precedents, the general rule is, of course, that later opinions modify and control earlier opinions. Yet this general rule is precisely opposite of that advanced by the majority, that “the earlier opinion remains the controlling law in the circuit with respect to matters as to which the two opinions unquestionably conflict.” Ante at 292 (quoting Harter v. Vernon, 101 F.3d. 334, 343 (4th Cir.1996) (Luttig, J., dissenting from denial of rehearing en banc)).
The majority adduces no binding authority in contravention of the argument from first principles which concludes that Faust and Tiffany remain court precedents that must be dealt with by application, distinction, or overruling. The majority neither purports to overrule Faust and Tiffany (for that would violate the rale that it trumpets) nor asserts that Faust and Tiffany were ultra vires. The majority’s determination to ignore Faust and Tiffany appears to be an enforcement mechanism for the rale against one panel overruling another. Unless the majority adopts the position that later inconsistent opinions are ultra vires,- however, it must concede that the enforcement mechanism itself requires violation of the very rule of decision making that it is designed to enforce. Labeling the enforcement mechanism as a “necessary corollary” does not change the reality of what application of the “corollary” accomplishes, which is the overruling of later opinions.
When we review the relevant legal principles in this case, there can be little dispute that the better approach to adopt in this case would be to recognize a discretionary function exception applicable to claims brought under the Suits in Admiralty Act. This appears to be directed by the intervening Supreme Court dictum in Var-ig Airlines and is the approach adopted by the ten other circuits to have addressed the issue, as well as two decisions in our circuit, Faust and Tiffany.
I regret that the majority has failed to take the opportunity presented in the circumstances of this case to squarely and substantively address the inconsistency produced by Lane, Faust, and Tiffany and to bring our jurisprudence in line with the ten other circuits to have addressed the issue, as well as the dictum given by the Supreme Court in Varig Airlines. But it has failed to do so based on a misunderstanding, I respectfully submit, as to the nature of our prudential rule of decision-making that directs that one panel should not overrule another.
II
On the issue of whether the United States has duties (1) “to conspicuously mark the restricted area” (drawn from regulation 33 C.F.R. § 207.300(s)) and (2) “to warn about the dam” (drawn by analogy from the common law relating to duties of land owners), I also dissent. Neither duty up until now has been recognized by the Supreme Court or in this circuit.
First, the majority reads more into 33 C.F.R. § 207'.300(s) than the language of the regulation states or implies. That regulation provides:
Restricted areas at locks and dams. All waters immediately above and below each dam, as posted by the respective District Engineers, are hereby designated as restricted areas. No vessel or *314other floating craft shall enter any such restricted area at any time. The limits of the restricted areas at each dam will be determined by the responsible District Engineer and markefd] by signs and/or flashing red lights installed in conspicuous and appropriate places.
33 C.F.R. § 207.300(s). The majority holds that this is a safety regulation; that the jet-skiers in this case are within the class of persons protected by the regulation; and that the harm suffered by the jet-skiers is the type of harm the regulation was intended to prevent. Ante at 294-96.
With due respect, the language of the regulation does not support these conclusions. “Safety” is nowhere to be found in the regulation, either expressed or implied. The regulation authorizes District Engineers to designate areas around locks and dams as “restricted” and to prohibit boats from entering the area. It states nothing more than how the restricted area shall be designated and made manifest by the District Engineer. While the regulation does not state the purpose of designating the areas around locks and dams as restricted, it cannot be inferred that the purpose is to give warning of dangers. It is indeed more likely a regulation to protect the government by designating areas to keep people from government property in order to prohibit interference with government operations, or to protect government property from damage or vandalism, or to protect the government from increased risks of liability that exist in the restricted area. Whatever the purpose, however, the regulation’s language does not support the conclusion that restricted areas are intended to protect the safety of the public. To read the regulation to impose a duty running from the government to the public requires reading much more into this provision than appears. Indeed, a straightforward reading would suggest that if any duty is created by the regulation at all, it would run from the public to the government, imposing on the public a duty (1) not to enter government-restricted areas, (2) not to interfere with government operations, or (3) not to damage or vandalize government property.
With respect to the new maritime duty that the majority imposes on the government to warn the public of danger from a government-owned dam in navigable waters, the majority’s holding is irreconcilable with the holdings of our decisions in Faust v. South Carolina State Highway Department, 721 F.2d 934 (4th Cir.1983), and Magno v. Corros, 630 F.2d 224 (4th Cir.1980).
In Faust, we decided that the issuance of a permit to operate a ferry was an unreviewable discretionary function and therefore dismissed the case against the United States. But we also rejected any general tort theory of government liability in that case, stating that “[w]e are aware of no authority and counsel has cited none which holds that the United States may be held liable on a common law tort theory of failure to maintain safe conditions on navigable waters which it ‘owns’.” Faust, 721 F.2d at 939.
The majority acknowledges this statement from Faust, but asserts that the duty that it imposes is consistent with Faust because “[t]he duty in this case springs not from the government’s capacity as the ‘owner’ of all navigable waterways, but from its capacity as the owner and operator of an artificial obstruction across one particular navigable waterway.” Ante at 302. This distinction is not entirely persuasive because Faust involved — like here — an obstruction across a navigable waterway, albeit one that was authorized by the federal government rather than erected by the federal government.
*315But even if this distinction of Faust had substance, the majority’s imposition of a duty on the government as “owner and operator of an artificial obstruction across one particular navigable waterway” directly conflicts with Magno, an authority that the majority acknowledges only in passing and for the purpose of trying to distinguish it, even though it is the primary basis for our dismissal of the general tort theory of liability in the very section of Faust that the majority quotes.
In Magno, we held that the United States was not liable for failing adequately to warn about an obstruction built and maintained by the United States. 630 F.2d at 228. In that case, the plaintiff died of injuries received when the motorboat that he was operating “collided with a sheet steel dike built and maintained by the United States.” Id. at 225. The dike was a sheet steel pile structure extending 1,100 feet in length and protruding approximately two feet above the water, which the district court found was not visible to an approaching boater. Id. at 226. The only marking on the dike was a blinking white light at one end: Id. The district court concluded that this single marking at only one end was gross negligence and held the United States responsible. Id. We reversed, holding that the “[pjlaintiff here has presented us with no authority and has introduced no evidence that would impose upon anyone a duty to mark the dike any more clearly than the United States did in this case.” Id. at 228.
The duty imposed by the majority in the present case is indistinguishable from the duty that we determined to be nonexistent in Magno. If the government had no duty to place anything more than a single blinking light at the end of an 1,100 foot steel structure that was not visible to an approaching boater, as we held in Magno, it would seem that the majority in this case would not be entitled to conclude that the government has a duty to supplement the multiple signs that marked the restricted area about the locks and dam on the Ohio River. It is no answer to assert that “[wjhether the signs in place around the dam were sufficient to satisfy the government’s duty ... [is a] factual issue[ ] that must be resolved through further proceedings before the district court.” Ante at 297 n. 6. For as the majority recognizes, “the question before this court is the existence vel non of a duty to warn on the part of the government,” ante at 305 n. 14, and the holding of Magno in the negative was rendered as a matter of law, see 630 F.2d at 228 (“To find liability there must first be found a duty violated.... Plaintiff here has presented us with no authority and has introduced no evidence that would impose upon anyone a duty to mark the dike any more clearly than the United States did in this case. We decline to impose this even higher duty on the government. Thus, Lane is inapposite for it requires that a duty be found in the first instance”).
Ill
In sum, based on our decisions in Faust and Tiffany, I would accord the United States sovereign immunity from claims based on its discretionary actions brought under the-Suits in Admiralty Act, as has been done by every other circuit to have considered the issue. And in any event, I would not find the existence of the two new duties created by the majority because 33 C.F.R. § 207.300(s) does not support the first and our decisions in Faust and Magno reject the second. Accordingly, I would affirm the judgment of the district court even in the absence of sovereign immunity.
. Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991); Faust v. South Carolina State Highway Dep't, 721 F.2d 934 (4th Cir.1983); Lane v. United States, 529 F.2d 175 (4th Cir. 1975).
. Because the majority concludes categorically that the discretionary function exception is inapplicable, it does not address whether the placement of signs marking the restricted area falls within that exception. In view of the fact that I would recognize the exception, I would address the issue and conclude that the plaintiffs’ claims arise out of the government’s performance of a discretionary function. See Graves v. United States, 872 F.2d 133, 137 (6th Cir.1989) (concluding that choices regarding whether to post signs near a dam and what type of signs to post, including assessments of the "cost, feasibility of maintenance and effectiveness of various types of warnings” brought negligence action within discretionary function exception).
. The majority seeks to distinguish Tiffany on its facts even though Tiffany involved a claim asserted against the United States on the basis of the waiver of sovereign immunity in the Suits in Admiralty Act. But in its attempt, the majority inaccurately observes that "the significance of the military setting required the result quite independently of the discretionary function exception.” Ante 292 (emphasis added). Yet, in Tiffany we in fact relied on the discretionary function exception to conclude that the case was nonjusticiable. See Tiffany, 931 F.2d at 275 ("We first proceed to address the relationship between separation of powers principles and the relevant federal statutes”); id. at 276 ("The respect for separation of powers principles addressed through the discretionary function exception of the [Federal Tort Claims Act] has been carried over into suits brought under [the Death on the High Seas Act] and [the Suits in Admiralty Act]. Our recognition of the constitutional constraints on actions brought under those acts is not a novel phenomenon”).
. Observing that Lane "rejected, without qualification, the argument that the [Suits in Admiralty Act] includes an implied discretionary function exception,” ante at 292 (emphasis added), the majority determines to reject application of both Faust and Tiffany, which recognize such an exception “in some circumstances." To respond to my dissent, the majority relies on an earlier dissenting opinion of our court to justify its role of determining whether panels of our court in earlier cases followed our law and then rejects those cases that it concludes did not, finding them somehow illegitimate. But this is not a role that the majority can play without violating the very rule that it employs to police other cases. Devaluation of two circuit precedents — Faust and Tiffany — that were surely decided under Article III power conferred on the panel in those cases by Congress, see 28 U.S.C. § 46(b), rides "roughshod” over those precedents. See ante at 292.