to such a delegation is binding and effective without action by either Congress or the President. 170

[467] [55-57] An effective delegation, therefore, must embody some basic congressional policy decision. That policy decision, plus what the agency does in accordance with that decision, constitutes the law on the subject matter. We recognize that, due to the dormancy of the delegation doctrine, courts have frequently upheld extemely broad delegations giving little policy guidance to the administrators, 171 but the Supreme Court has never held that Congress may abdicate entirely its responsibility to make a policy decision when it authorizes agency action. Arguments that Congress actually decided nothing whatsoever about the extension of incremental pricing, therefore, would raise serious questions as to the validity of the Phase II delegation itself.17

172

Moreover, in this case there is no question that Congress did set forth an original policy on incremental pricing, one which was reconsidered by the House in disapproving the Phase II rule. It may be true that Congress contemplated that it would make the final decision on extending incremental pricing after FERC issued a rule, but it is indisputable that Congress wanted FERC to do more than merely propose legislation. Section 202 of the NGPA represents an authorization, approved by both houses and the President, giving FERC discretion to issue an incremental pricing rule that

170 We recognize that in practice Congress will usually take some "action" when it determines not to veto a rule, as Judge MacKinnon argued in Clark, 559 F.2d at 685-90 (MacKinnon, J., dissenting). Judge MacKinnon's view appears to be that under a congressional veto scheme, the President is entitled to presentation of both a decision to veto, see id. at 689, and a decision not to veto, see id. at 690 (emphasis in original) ("In approving regulations submitted by the FEC the concurrence of both houses is necessary, since if one house disagrees, the regulations are killed. Hence, such regulations must be presented to the President.").

We disagree on this latter point. If Congress tries but fails to pass a statute to overturn an effective regulation, it certainly engages in "action." Yet there can be no argument that Congress' failure to pass a statute must be presented to the President for veto. In the same way, its failure to disapprove an agency rule does not constitute formal and official action invoking Article I, Section 7. Congress (or one house) "acts" for purposes of this provision when it affirmatively passes some bill, order, vote, or resolution that alters the substantive law; it does not act when such proposals are not adopted and the substantive law-i.e., the promulgated regulations-remain unchanged. To adopt Judge MacKinnon's alternative view would be to suggest that regulations promulgated under a two-house veto scheme with provision for presentation to the President would become effective only by the failure of both houses to disapprove, and only after the President had an opportunity to veto the regulations. Such a holding would empower the President to veto both regulations and disapproval of regulations, an unwarranted and illogical extension of his power under Article I, Section 7. The proper analysis, in our view, is that promulgated regulations become effective without further action by either Congress or the President.

171 See generally K. Davis, Administrative Law Treatise §§ 3.1-3.8 (2d ed. 1978).

172 Congressional amici and intervenors argue strenuously that Congress actually decided nothing whatsoever about the extension of incremental pricing. See Brief for Congressional Amici at 65-66; Brief for Gas Suppliers at 46 ("[Section 202 contemplated merely a proposal which was to be reviewed by Congress"); Brief for Gas Consumers at 41 ("[No serious reading of the statute can support a conclusion that Congress pre-judged the issue"); Brief for PEG at 9 n. ("The decision on extending this rule under Section 202 was left to another day"). It unquestionably is true that Congress sought to avoid a definitive decision on extension of incremental pric ing. But if, as these parties suggest, Congress was utterly neutral on whether such extension should occur at all, then a serious question would arise whether the delegation could be effective at all, unless we were willing, as we are not, to accept the view that the existence of a legisla tive veto can serve to validate an otherwise too broad delegation. Cf. Chadha, 634 F.2d at 431 ("We would be reluctant to view the statutory criteria of section 244 as so broad and indefinite as to permit constant legislative redefinition that at the same time does not amount to an to an effective amendment, for such a view would raise serious delegation problems.") Moreover, se ceptance of Congressional amici's view would necessarily lead to the conclusion that the Phase II rule would have been a new policy that could take effect without affirmative approval by either house and without any presidential participation. Since the Constitution clearly envisages all three entities combining to set national policy, such a construction would be just as constitutionally dubious.

Petitioners deny that section 202(c) is inseverable from the rest of section 202, but they go on to argue that if section 202 must stand or fall as one, then section 202 is insevarable from the rest of Title II, which in turn is inseverable from the NGPA. Striking down the entire NGPA arguably would provide petitioners with effective relief because it would reinstate the pre-existing stringent natural gas price control scheme. FERC denies that section 202 is inseverable from the remainder of the NGPA, arguing that Phase I and Title I could go into effect without change. Gas Consumers, on the other hand, agree that section 202 is inseverable from section 201, but contend that Title I may stand alone. We do not need to reach these secondary arguments, however, because we find that subsection (c) is severable from the remainder of section 202.48

[4] The presence of a severability clause, which expressly sets forth congressional intent that a statute stand in the event one of its provisions is struck down, makes it extremely difficult for a party to demonstrate inseverability.49 When there is no such clause, however, as in this case, the test is less certain. Petitioners argue that severability is presumed and that the proponents of inseverability must prove otherwise. This standard is derived from Tilton v. Richardson, 50 which stated that “[t]he cardinal principle of statutory construction is to save and not to destroy,'" and from Buckley v. Valeo, 51 which held: "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'" Congressional amici and intervenors, on the other hand, contend that petitioners are required to overcome a presumption that section 202(c) is inseverable from section 202 as a whole. They cite the Supreme Court's statement in Carter v. Carter Coal Co.: 52

In the absence of [a severability] provision, the presumption is that the legislature [442] intends an act to be effective as an entirety-that is to say, the rule is against mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it.53

18 The parties appear confused as to whether the severability issue presents a question of standing or of mootness. Compare, e.g., Brief for Gas Suppliers at 13 (inseverability means petitioners lack standing), with id. at 2 (inseverability means case is moot). Since we find that subsection (c) severable, we need not decide this question. We also need not decide whether severability presents a threshold question that must be resolved prior to a determination on the merits. Compare McCorkle v. United States, 559 F.2d 1258, 1261-62 (4th Cir. 1977) (refusing to determine constitutionality of legislative veto provision in Federal Salary Act because provision is inseverable from remainder of Act), cert. denied, 434 U.S. 1011, 98 S.Ct. 724, 54 L.Ed.2d 755 (1978), with Atkins v. United States, 556 F.2d 1028, 1057-71 (Ct.Cl. 1977) (per curiam) (holding legislative veto provision in Federal Salary Act constitutional, without deciding severability issue), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978), and id. at 1082 n.16 (Shelton, J., concurring in part and dissenting in part) ("It is, of course, unnecessary for the majority to reach the question of severability since it holds the one-House veto to be constitutional."). 49 See, e.g., Electric Bond & Share Co. v. SEC, 303 U.S. 419, 434, 58 S.Ct. 678, 82 L.Ed. 936 (1938); Chadha v. Immigration & Naturalization Serv., 634 F.2d 408, 415-16 & n.3 (9th Cir. 1980), consideration of juris. postponed until hearing on merits, U.S. --, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981).

50 403 U.S. 672, 684, 91 S.Ct. 2091, 2098, 29 L.Ed.2d 790 (1971) (plurality opinion) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 620, 81 L.Ed. 893 (1937)). 51 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam) (quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed.2d 1062 (1932)). 52 298 U.S. 238, 312, 56 S.Ct. 855, 873, 80 L.Ed. 1160 (1936).

sa See also Electric Bond & Share Co. v. SEC, 303 U.S. 419, 434, 58 S.Ct. 678, 683, 82 L.Ed. 936 (1938) (severability clause "reverses the presumption of inseparability").

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[5] We think the question where the presumption lies is mostly irrelevant, and serves only to obscure the crucial inquiry whether Congress would have enacted other portions of the statute in the absence of the invalidated, provision. This is fully in accord with United States v. Jackson, 54 in which the Supreme Court refused to place significance on the absence of a severability clause: "[W]hatever relevance such an explicit clause might have in creating a presumption of severability, . . . the ultimate determination of severability will rarely turn on the presence or absence of such a clause." Rather, the question is whether Congress would have enacted the remainder of the statute without the unconstitutional provision.55 We do not view the imposition of any unspecified burden of persuasion on either side as beneficial to the inquiry.

[6] We are presented with two remarkably different interpretations of the legislative history and intent underlying section 202. Petitioners contend that incremental pricing was critical to the compromise that enabled the NGPA to pass. They point out that the legislative review provision was added only in conference, that the provision was not emphasized in either the conference report or the subsequent floor debates, and that a major concern of many congressmen was that broad price protection be provided for consumers. Respondent and its supporters, on the other hand, claim that the legislative veto provision was central to the compromise that divided incremental pricing into two stages. They point to assurances made during the congressional debates that Phase II did not have to go into effect, and contend that without the veto provision Phase II incremental pricing would not have been authorized. Though the legislative history, as almost always is the case, contains contradictory comments about the importance of section 202 and subsection (c), we find that Congress would have enacted section 202 in the absence of the legislative review provision in subsection (c). At the outset, we reject intervenors' view that the conference report in any way "emphasized" that section 202 would not have been enacted without subsection (c). The report simply describes the working of that section, and thus states that the Phase II rule will go into effect only if neither house disapproves. 56 No one disputes that this was the intent of section 202 as enacted. The question before us, however, is what Congress would have intended in the absence of section 202(c). On this question the conference report is silent. To the extent the report does aid the inquiry, it supports petitioners' argument for severability, as its summary of Title II fails to mention, much less emphasize the importance of, the legislative review provision in section 202.57 Combined with the fact that none of the incremental pricing provisions in earlier bills were made subject to congressional review, this lack of emphasis

$4 390 U.S. 570, 585 n.27, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968).

55 See, eg, Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam), United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968). See also Atkins v. United States, 556 F.2d 1028, 1083-85 (Ct.Cl. 1977) (Shelton, J., concurring in part and dissenting in part) (although presumption of severability was mentioned in early cases, present law is clear that there is no presumption), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978).

militates against the view that the veto provision was essential to the incremental pricing and NGPA compromises.

The floor debate on the conference committee compromise reinforces our finding of severability. It is true that there were [443] statements on the floor of each house explaining that Phase II could be rejected by legislative veto. In response to criticisms of incremental pricing, Senator Jackson noted that "this bill does not compel incremental pricing with respect to any industrial use other than in large boilers. Extension of incremental pricing beyond boiler use could be prevented by a majority vote of either House of Congress 2 years from now."58 In the House, Representative Dingell noted that the intent was not to "drive industrial users off natural gas and onto other fuels," and went on to describe "several statutory guarantees against such an unintended result," one of which was that "[a]ny broadening of incremental pricing to a broader universe of industrial users is subject to congressional review and single House veto." 59

Considered in isolation, these two statements tend to support respondent's view that section 202(c) was essential to the statutory scheme. But other remarks by these same congressmen indicate their belief that Phase II was more than a mere possibility, it was a desirable policy. Senator Jackson's primary response to concerns about the potential ill-effects of incremental pricing was not to point out that a Phase II rule could be vetoed, but to argue that it would succeed because it would not cause gas prices to rise higher than alternative fuel prices. 60 Representative Dingell made the same point, and then went on to argue that "a broadening of incremental pricing to other industrial users will give added assurances against forced conversions."61 He thus saw Phase II as important in ensuring the overall success of incremental pricing.

More important, these two statements are the sole references to subsection 202(c) during the days of debate which focused quite extensively on incremental pricing. These debates leave absolutely no doubt that the controversy over incremental pricing did not hinge on whether it would be limited to boiler uses or extended to other industrial uses. Opponents of the Act's incremental pricing provisions stressed primarily the regional discrimination that would result from applying it only to interstate pipelines, 62 although some attacked the concept itself. 63 And the most pervasive defense of Title II was that it would provide strong protection against large

58124 Cong. Rec. 31821 (1978) (remarks of Sen. Jackson).

** Id. at 38362 (remarks of Rep. Dingell).

** Id. at 31821 (remarks of Sen. Jackson); see id. at 31843 (remarks of Sen. Jackson). 61 Id. at 38362 (remarks of Rep. Dingell).

62 "Incremental pricing is imposed upon industrial users only in the interstate market. Thus, gas will be cheaper for industries in the producing States, further encouraging the flight of industries from the Northeast and Midwest to the Sunbelt." Id. at 38480 (remarks of Rep. Markey), see, e.g., id., at 38499 (remarks of Rep. Holt); id. at 38497 (remarks of Rep. Pressler); id. at 38396 (remarks of Rep. Gore); id. at 38391 (remarks of Rep. Coughlin); id. at 38376 (remarks of Rep. Stockman); id. at 38372 (remarks of Rep. Edwards); id. at 38353 (remarks of Rep. Horton); id. at 38353 (remarks of Rep. Moffett); id. at 38353 (remarks of Rep. Anderson); id. at 38482 (remarks of Rep. Brown); id. at 38126 (remarks of Sen. Hollings); id. at 30025 (remarks of Sen. Humphrey); id. at 30024 (remarks of Sen. Metzenbaum); id. at 30022 (remarks of Sen. Kennedy); id. at 30016 (remarks of Sen. Abourezk); id. at 28888 (remarks of Sen. Wallop); id. at 28876 (remarks of Sen. Weicker; id. at 28644 (remarks of Sen. Hansen).

83 See, eg, id. at 38376 (remarks of Rep. Stockman); id. at 38372 (remarks of Rep. Edwards); id. at 28644 (remarks of Sen. Hansen).

price increases for residential consumers. 64 Nothing in these dozens of remarks remotely indicates that these proconsumer arguments would have changed into opposing [444] arguments had Phase II not been made subject to legislative review.65

We are convinced, then, that Congress would have enacted both phases of incremental pricing without the veto provision. Title II of the NGPA set forth a congressional policy in favor of incremental pricing.66 Although the exact contours were left in doubt, the Congress made, through its delegation to FERC, at least a tentative decision in favor of extension of incremental pricing to nonboiler industrial uses. By finding the veto provision severable we do not destroy the distinction Congress made between Phase I and Phase II. The scope of Phase I was unambiguous, and the Commission was left with mostly technical discretion to formulate a workable rule. Phase II, however, was undefined; the Commission was directed only to come up with some extension of incremental pricing. The concerns about extending incremental pricing, especially the possibility that gas users would be forced to switch to other fuels, were left open for the Commission to consider. 67 To some extent the Commission did exercise such discretion, as it set a moderate alternative fuel price level so that its extension of incremental pricing would not place great burdens on the uses to be covered by Phase II.68 Moreover, the Commission's stated reason for not considering

64 "[This bill] reverses the historical unfairness in pricing between residential and industrial users.... Under the report, extra costs would be passed on to the industrial users." Id. at 31844 (remarks of Sen. Glenn); see, e.g., id. at 38498 (remarks of Rep. Wolff); id. at 38381 (remarks of Rep. Glickman); id. at 38361 (remarks of Rep. Dingell); id. at 31844-46 (remarks of Sen. Jackson); id. at 31840-41 (remarks of Sen. Muskie); id. at 31838 (remarks of Sen. Moynihan); id. at 31835 (remarks of Sen. DeConcini); id. at 31817 (remarks of Sen. Bumpers); id. at 30026 (remarks of Sen. Chiles); id. at 30024 (remarks of Sen. Heinz); id. at 28665 (remarks of Sen. Pearson).

65 To the contrary, it is noteworthy that Phase I was estimated to cover only 10 percent of interstate gas deliveries. See id. at 38362 (remarks of Rep. Dingell). Although the market ordering purpose conceivably might be served by Phase I alone, see id., broad consumer protection could not be provided by this limited coverage. Indeed, FERC subsequently found that the actual coverage of Phase I was only 7-8 percent of annual interstate volumes, see Phase II Rule, supra note 10, at 16 reprinted in Veto Report, supra note 9, at 25, and it concluded that "the objective of price shielding can be best advanced by a Phase II rule covering as broad a class of nonexempt users as possible." Id. at 70 reprinted in Veto Report, supra, at 49.

66 The nature of the House's consideration of the disapproval resolution also indicates a recognition that incremental pricing generally was critical. The House Report recommending disapproval noted that "the incremental pricing concept was perceived to be a necessary prerequisite to increased wellhead prices for natural gas." Veto Report, supra note 9, at 6. And Representative Dingell began the hearings on the rule by stating: "Incremental pricing is one of the very important elements of the compromise that was forged during the 95th Congress which resulted in the enactment of the Natural Gas Policy Act." Phase II Incremental pricing of Natural Gas: Hearings on H.R. Res 655 Before the Subcomm. on Energy and Power of the House Comm. on Interstate and Foreign Commerce, 96th Cong., 2d Sess. 1 (3 Apr. & 6 May 1980) [hereinafter "Phase II Hearings" (statement of Rep. Dingell). During the hearings and debates, almost everyone indicated a belief that by considering a veto of the rule the House was engaging in a policy reassessment. The discussion focused almost exclusively on whether in cremental pricing remained appropriate policy, especially in light of new market conditions. Representative Gramm noted that "every point for vetoing phase II is an equally good point for vetoing phase II is an equally good point for vetoing phase I." Id. at 381 (statement of Rep. Gramm). See generally pp. 437-438 supra.

67 See, e.g., 126 Cong. Rec. H3854 (daily ed. 20 May 1980) (remarks of Rep. Ashley):

In my role as a conferee on the NGPA. I had occasion to engage in a colloquy with my colleague John Dingell during floor consideration of the bill. That colloquy made clear the conferees' understanding that a significant delegation of authority was being made to FERC under NGPA, with respect to phase II of incremental pricing. But the remarks also made very clear the intent of Congress that FERC exercise this authority cautiously and that the Commission carefully consider the economic impact of incremental pricing in all industrial users (especially industrial process users) before promulgating a final rule.

68 See Phase II Rule, supra note 10, at 70-71, reprinted in Veto Report, supra note 9, at 49.