METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, ET AL., PETITIONERS V.
CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., ET AL.

   No. 90-906

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Introduction and summary of argument
   Argument:
       I. The challenge to the constitutionality of the Board of
          Review is justiciable
          A. Respondents have standing
          B. Respondents' claim is ripe
      II. The statutory lease condition requiring the appointment of
          Members of Congress in constitutional in the unusual
          circumstances of this case.
          A. States may appoint Members of Congress to state offices
          B. Members of Congress may not hold other federal offices,
             exercise federal executive functions, or legislate
             without bicameralism and presentment
          C. Although a federal condition that states appoint Members
             of Congress would be impermissible in most circumstances,
             the condition is not unconstitutional in the limited
             circumstances of this case
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-27a) is reported
at 917 F.2d 48.  The opinion of the district court (Pet. App. 29a-55a)
is reported at 718 F. Supp. 974.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 26,
1990.  The judgment was stayed by order of the court of appeals on
December 6, 1990.  Pet. App. 28a.  This Court granted a petition for a
writ of certiorari on January 14, 1991.  The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   The Metropolitan Washington Airports Act of 1986 (49 U.S.C. App.
2451 et seq.) requires, as a condition of leasing federally owned
airports to a regional Airports Authority established by the
Commonwealth of Virginia and the District of Columbia, that the
Airports Authority create and appoint a Board of Review that has veto
power over major Authority actions, and that consists entirely of
Members of Congress.

   The questions presented are:

   1. Whether a challenge to the Board of Review's veto power is
justiciable.

   2. Whether the Board of Review is constitutional.

                               STATEMENT

   1. Washington National Airport (National) and Washington Dulles
International Airport (Dulles) are the only federally owned,
major-air-carrier airports in the United States.  From the time they
were opened until 1987, both airports were operated by the federal
government.  For many years before 1987, the government had considered
ceding its operational control of these airports.  Pet. App. 2a.

   In December 1984, a federal advisory commission report suggested a
long-term lease arrangement between the federal government and an
independent regional airports authority.  Pet. App. 2a-3a.  In
response, both Virginia and the District of Columbia enacted
legislation authorizing the creation of a regional airports authority
capable of assuming the operation of the two airports.  See 1985 Va.
Acts ch. 598;  District of Columbia Regional Airports Authority Act of
1985, 1985 D.C. Law 6-67, reprinted at Pet. App. 87a-106a, 119a-139a.

   In 1986, Congress passed the Metropolitan Washington Airports Act
of 1986 (the Airports Act), 49 U.S.C. App. 2451-2461, reprinted at
Pet. App. 60a-85a, which authorizes the Secretary of Transportation to
transfer operating authority over National and Dulles Airports to a
local regional authority (referred to in the statute as "the
Metropolitan Washington Airports Authority" and "the Airports
Authority") under an extendable 50-year lease.  49 U.S.C. App.
2453(2), 2454(a), 2459.  In its statutory findings, Congress
recognized, among other things, that all other major-air-carrier
airports in the United States are operated by state, regional, or
local authorities;  that the Executive Branch had recommended a
transfer of authority to a "local/State" entity;  and that, in its
view, control of National and Dulles Airports by a regional authority
would facilitate timely improvements needed to meet growing demand.
49 U.S.C. App. 2451(4), (5) and (7).

   Congress included several conditions on the authority of the
Secretary of Transportation to enter into a lease of the two airports
with the Airports Authority.  49 U.S.C. App. 2454(a)-(c), 2456.  The
Airports Authority must have powers granted to it by Virginia and the
District of Columbia, but must be an independent political subdivision
constituted solely to operate the local airports.  49 U.S.C. App.
2456(a) and (b).  The Airports Authority must also have a governing
Board of Directors composed of 11 members -- five chosen by the
Governor of Virginia, three chosen by the Mayor of the District of
Columbia, two chosen by the Governor of Maryland, and one chosen by
the President (49 U.S.C. App. 2456(e));  all but the Presidential
appointee must reside in the District of Columbia metropolitan area.
49 U.S.C. App. 2456(e)(2)(C).  The lease itself must require an annual
payment equal to $3 million in 1987 dollars to the United States
Treasury by the Airports Authority.  49 U.S.C. App. 2454(b)(1).  /1/
The Airports Act also requires that, in order for the Secretary to
have authority to enter into the lease with the Airports Authority,
the Airports Authority must establish a Board of Review composed
entirely of Members of Congress.  The Board of Review is to be
appointed by the Authority's Board of Directors from lists of Members
of Congress serving on specified committees of the Senate and the
House of Representatives, and one Member at large from either body
alternately.  49 U.S.C. App. 2456(f).  /2/ These lists are to be
submitted to the Board of Directors by the Speaker of the House and
the President pro tempore of the Senate.  The members of the Board of
Review are appointed and serve "in their individual capacities, as
representatives of users of (National and Dulles." 49 U.S.C. App.
2456(f)(1).  Members of Congress from Virginia, Maryland, and the
District of Columbia are disqualified from serving on the Board of
Review.  Ibid.

   Under the statutory conditions for the lease, the Airports
Authority must submit five types of actions to the Board of Review for
possible veto:  (1) adoption of the Authority's annual budget;  (2)
authorization for the issuance of bonds;  (3) adoption, amendment, or
repeal of regulations;  (4) adoption or revision of any airport master
plan;  and (5) appointment of a chief executive officer.  49 U.S.C.
App. 2456(f)(4)(B).  These proposed actions may be implemented by the
Airports Authority if not disapproved within 30 days by the Board of
Review (or 60 days in the case of the annual budget).  If the Board of
Review disapproves an action, the action shall not take effect.  49
U.S.C. App. 2456(f)(4)(C) and (D).  If the Board of Review is barred
from carrying out its function as a result of a judicial order, the
Airports Authority lacks power to take any of the actions that it
would otherwise be required to submit for review.  49 U.S.C. App.
2456(h).

   Before passing the Airports Act, Congress consulted with the
Department of Justice regarding the constitutional validity of several
proposed bills.  See J.A. 25-35.  The Department analyzed various
proposals and concluded that, although "the issue (was) not free from
doubt," one proposed bill would "withstand constitutional scrutiny."
J.A. 35.  The version enacted by Congress and signed by the President
closely resembles that bill.

   2. In March 1987, the Secretary of Transportation signed a lease
transferring control of the airports to the Airports Authority;  the
lease was also signed by the Chairman of the Airports Authority, the
Governor of Virginia, and the Mayor of the District of Columbia, and
took effect on June 7, 1987.  Pet. App. 163a-189a.  The lease provided
for the operation of a Board of Review, as described in the Airports
Act.  Id. at 175a-178a.

   Two days after the lease was signed, the Airports Authority adopted
bylaws to govern its activities.  Pet. App. 148a-162a.  Article IV of
the bylaws establishes a Board of Review and describes its powers and
functions, which are consistent with the provisions in the Airports
Act.  Id. at 151a-154a.

   In early April 1987, Virginia amended its prior legislation
concerning the Airports Authority in several respects, including an
amendment providing explicit power for the Authority to establish a
Board of Review.  See 1987 Va. Acts ch. 665, Section 5.5, reprinted at
Pet. App. 111a.  In June 1987, the District of Columbia similarly
amended its earlier legislation in several respects, and, in one of
these amendments, also empowered the Airports Authority to establish a
Board of Review.  See District of Columbia Regional Airports Authority
Act of 1985 Amendment Act of 1987, D.C. Law 7-18, Section 3(c)(2),
reprinted at Pet. App. 143a.

   By September 1987, the Airports Authority had created and appointed
the Board of Review.  Pet. App. 6a.

   3. In March 1988, the Airports Authority submitted to the Board of
Review a new Master Plan for National Airport.  The Board of Review
voted the following month not to disapprove it, and the Airports
Authority has begun implementation of the Plan.  The Master Plan
provides for construction at National Airport which will, among other
effects, make it possible for the airport to accommodate larger
aircraft.  The size of the terminals and parking facilities will also
be significantly expanded.  Pet. App. 6a, 36a, 41a.

   4. In November 1988, respondents Citizens for the Abatement of
Aircraft Noise, Inc. (CAAN), and two individual members of CAAN filed
this action against petitioners (the Airports Authority and the Board
of Review).  Respondents /3/ alleged that the Master Plan was "now
causing injuries to CAAN and its members because of increases in noise
levels and safety and environmental problems at National Airport and
is likely to cause increasing injuries to them in the future." J.A.
10.  Respondents further alleged that the Board of Review's power to
disapprove Authority actions and the separation of powers doctrine.
Ibid.  They therefore sought a declaratory judgment that the Board of
Review's authority "under 49 U.S.C. Section 2456(f)(4)" is
unconstitutional and void, and an injunction preventing the Board from
exercising its review authority and taking any other actions under the
Act;  they also sought a declaratory judgment that the Airports
Authority is forbidden to implement any actions required to be
submitted to the Board, and an injunction preventing the Airports
Authority from implementing the Master Plan for National Airport.
J.A. 10.

   5. In July 1989, the district court granted summary judgment to
petitioners, upholding the validity of the Airports Authority
structure.  Pet. App. 55a.

   The district court first ruled that this case is ripe, despite the
fact that the Board of Review's veto authority had not been exercised
with respect to the Master Plan.  Pet. App. 37a-39a.  /4/ The court
also concluded that respondents have standing because an increase in
air traffic at National Airport could not occur without the
improvements provided for by the Master Plan.  Id. at 39a-42a.
Alternatively, the court found standing because respondents' influence
over decisions regarding National Airport has been diminished by the
ban against local representation among the Members of Congress on the
Board of Review.  Id. at 42a-43a.  /5/

   Turning to the merits, the district court first rejected the
contention that the Board of Review is merely "an arm" or "an agent"
of Congress.  The court noted that the Airports Authority appoints the
members of the Board of Review and can remove them;  that the Board of
Review members serve in their individual capacities as representatives
of users of the airports (49 U.S.C. App. 2456(f)(1));  and that, in
order for the Secretary to enter into a lease, the Airports Authority
must be independent of the federal government as well as Virginia and
the District of Columbia.  It concluded that the Board of Review is
therefore not an agent of Congress for federal separation of powers
purposes.  Pet. App. 46a-50a.

   The district court further rejected the claim that the Board of
Review was "mandated" by federal law.  The court emphasized that both
Virginia and the District of Columbia voluntarily created the Airports
Authority and entered into the lease with the federal government.
Pet. App. 50a-51a.  Accordingly, the Board of Review "derives its
existence from state law, not federal law." Ibid.  The court thus
concluded that, in view of the state law character of the Airports
Authority and its Board of Review, there is no conflict with
constitutional requirements for federal offices and the exercise of
federal power.  Id. at 51a-54a.

   6. Respondents appealed, and, pursuant to 28 U.S.C. 2403(a), the
Attorney General intervened on behalf of the United States to defend
the statutory scheme.  A divided panel of the District of Columbia
Circuit reversed the judgment of the district court and concluded that
the Board of Review is unconstitutional.

   The court first concluded that respondents' claims are justiciable.
 Pet. App. 8a-9a.  Finding that the issue "warrant(s) little
discussion," it agreed that the case is ripe.  Id. at 9a.  /6/ The
court then determined that respondents' allegations of injury from
noise, air pollution, and risk of injury are "'fairly traceable'" to
the Master Plan, which would provide for a "significant increase in
air traffic." Ibid.  The court thus found it unnecessary to address
the district court's alternative basis for standing.  Ibid.

   On the merits, the majority first rejected the argument that the
Board of Review is not exercising federal power.  The court emphasized
that the authorizing statutes of Virginia and the District of Columbia
do not spell out the powers and functions of the Board of Review in
detail;  instead, the federal Airports Act contains specific
requirements concerning the Board.  Pet. App. 10a-13a.  The court
concluded that the Board thus carries out "'significant authority
pursuant to the laws of the United States'" (Pet. App. 10a, quoting
Buckley v. Valeo, 424 U.S. 1, 126 (1976)), because the federal statute
defines the character of the Board of Review.  Pet. App. 10a-11a.

   Having determined that federal power is being exercised, the court
of appeals held that the Board of Review is unconstitutional on
general separation of powers grounds.  It concluded that the members
of the Board of Review are implementing executive functions and are
subject to congressional control.  Pet. App. 15a-19a.  Contrary to the
district court's analysis, the court also emphasized that, in its
view, Congress retains removal power over the members of the Board of
Review because it can remove Members of Congress from the pertinent
congressional committees, thereby making them ineligible for continued
service on the Board.  Id. at 18a.  /7/

   Judge Mikva dissented.  He questioned the court's characterization
of the Board as a federal entity and concluded that "(t)he fact that
the federal Act authorizing the transfer of the airports to the
Authority contemplates the Board's creation does not alter the Board's
fundamental state parentage." Pet. App. 22a.  Judge Mikva then
concluded that, even if the entity is exercising federal power, it is
not unconstitutional.  Id. at 22a-26a.  Judge Mikva also disagreed
with the majority's removal analysis.  He concluded that the Airports
Act should be read to vest removal authority over Board of Review
members with the Airports Authority Board of Directors both because
the appointment authority lies with the Airports Authority Board of
Directors, and because statutes should be construed to avoid
constitutional problems.  Id. at 24a-26a.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   This case presents a novel and difficult issue -- the validity of a
federal lease condition, readily accepted by state authorities,
requiring the appointment of Members of Congress to a state-created
entity.  Although we believe that such a condition would in most
instances be unconstitutional, we conclude that it is permissible in
the unusual circumstances at issue here.

   1. The question of justiciability in this case raises issues of
both standing and ripeness.  Although these issues are not free from
difficulty, we believe that respondents' claims are justiciable.

   On the issue of standing, respondents claim that they suffer from
various harmful effects of air and ground traffic at National Airport,
that the Master Plan will aggravate these injuries by increasing
traffic at National, and that invalidation of the Board of Review
would remedy this injury by preventing implementation of the Master
Plan.  To some extent, respondents' claims of injury are speculative
and attenuated because increased airport traffic is also dependent on
decisions by other actors, including commercial airlines and the
Federal Aviation Administration (FAA).  Nevertheless, the Master Plan
includes specific changes that will facilitate increases in the number
of passengers and of flights, and respondents have therefore alleged a
sufficient injury, which is traceable to the Master Plan and subject
to judicial remedy.

   On the issue of ripeness, we believe that this matter is ripe for
judicial review even though the Board of Review did not veto the
Master Plan and it is the veto authority that respondents have
challenged.  Precedents from this Court teach that, even when a power
to remove or disapprove has not been exercised, the validity of such a
provision may be ripe for judicial resolution if, as here, the very
existence of the power has an immediate impact.  In this case,
moreover, the Board of Review completed its review procedure with
respect to its decision not to veto the Master Plan, and nothing
further remains to be done with respect to that procedure.  Therefore,
respondents' challenge to the Board of Review's authority is ripe.

   2. With regard to the merits, it is clear that the Constitution
does not prohibit Members of Congress from holding state offices;  the
Framers explicitly considered such a prohibition and rejected it.  1
M. Farrand, The Records of the Federal Convention of 1787 (1937 ed.)
20-21, 386-393, 428-429.  But it is also clear that Members of
Congress may not hold other federal offices, legislate without
bicameralism and presentment to the President, or perform federal
executive functions.  Bowsher v. Synar, 478 U.S. 714 (1986);  INS v.
Chadha, 462 U.S. 919 (1983).

   In the present case, appointment of the Board of Review, which
would be permissible if undertaken by a State on its own, is made in
response to a federal condition.  The federal condition, which would
be impermissible if it established a congressional board with veto
power over a federal agency, involves not a federal agency but an
agency created at the state level by a state entity (which would have
the ability to make the appointments on its own).

   In most instances, a condition of this kind -- requiring a state or
local entity to appoint Members of Congress to a state office as a
condition of some federal aid or benefit -- would violate separation
of powers principles because it would pose a substantial threat of
congressional aggrandizement and incursion of the Executive Branch.
But we believe that, in the unusual circumstances of this case, no
such threat exists.  In the present case, Members of Congress have
special and distinctive interests as individuals.  Moreover, the case
is one in which the Executive Branch has agreed with the Legislature
on the permissibility of the organizational structure under which the
airport property has been leased.

   a. Contrary to the court of appeals' analysis, the Board of Review
exercises state, and not federal, power.  A conclusion that the
authority is exercising federal power fails to give appropriate weight
and respect to the significance of the independent enactments by
Virginia and the District of Columbia;  it also raises questions
concerning a wide variety of cooperative regimes in which state
programs accord with specifications in federal statutes.

   That the Board of Review is exercising state authority is
necessary, but far from sufficient, to establish the validity of the
condition.  If existence of state authority were the only requirement,
such conditions could be adopted by Congress in many circumstances in
which the functions and responsibilities of the Executive Branch would
be significantly impaired.

   b. In addition to the state character of the challenged authority,
this case presents an exceptional circumstance that obviates the
threat of significant incursion on the Executive Branch or
aggrandizement of legislative power.  A rare, and in our view,
essential element of the validity of the Board of Review arrangement
here is that Members of Congress are not only designated to serve "in
their individual capacities," but also do in fact have special and
distinctive individual concerns that justify that designation.  As a
result of their responsibilities, and especially their need to travel
to and from their legislative districts, Members of Congress are
frequent and regular users of the two airports involved here.

   c. The validity of the Board of Review is further supported by two
additional circumstances present in this case.  First, federal
ownership and operation of major-air-carrier airports is an anomaly;
all other such airports are operated at the state, regional, or local
level.  Second, the Executive and Legislative Branches have agreed on
the formulation and implementation of the statutory condition of the
airports' lease.

                               ARGUMENT

   I. THE CHALLENGE TO THE CONSTITUTIONALITY OF THE BOARD OF REVIEW IS
JUSTICIABLE

   Although the issues are not free from difficulty, we believe that
respondents have standing and that their claims are ripe for judicial
resolution.

   A. Respondents Have Standing

   To have standing, respondents must allege a sufficiently concrete
and particularized injury, which is traceable to the challenged
actions of petitioners and which can be remedied by the courts.  See
Allen v. Wright, 468 U.S. 737, 751 (1984);  Valley Forge Christian
College v. Americans United for Separation of Church & State Inc., 454
U.S. 464, 472 (1982).

   Respondents' complaint alleges that they suffer from the activity
level at National Airport, and that this activity causes noise, safety
problems, and air pollution.  J.A. 4-5;  see also J.A. 85-86.  An
affidavit by a CAAN director further claims that CAAN members are
"adversely affected by the traffic congestion resulting from passenger
activity" at National, that some members have "developed health
problems that they attribute to the air traffic," and that "others'
property values have suffered as a result of their proximity to the
airport or its flight path." J.A. 86.

   Respondents' complaint alleges further harm from the Master Plan on
the ground that it is "now causing injuries to CAAN and its members
because of increases in noise levels and safety and environmental
problems at National Airport and is likely to cause increasing
injuries to them in the future." J.A. 10.  Respondents' motion for
summary judgment states that their interest arises because "(t)he
Airports Authority's master plan proposes to expand National Airport
facilities and passenger levels, which, in turn, will cause the noise
and other airport problems to worsen." Pltf. Memo. Suppt. Mot. for
Summary Judgment 16.  The CAAN director's affidavit also maintains
that injury will occur because the Master Plan "proposes to expand the
airport's facilities, to build them to accommodate widebodied jets, to
increase passenger levels, and to increase air carrier traffic by
utilizing currently unused slots." J.A. 86.

   To an extent, the claim of injury is speculative and attenuated
because the Plan is a limited one and because increases in activity at
National Airport are in part dependent on decisions by others.
Although a new terminal is being built, the Master Plan preserves the
existing number of aircraft gates.  J.A. 89-90.  The Plan improves
surface traffic flow and parking, but does not change the length,
number, or orientation of runways.  J.A. 90.  Moreover, the Airports
Act as well as the lease between the Secretary of Transportation and
the Airports Authority provides that the Airports Authority cannot
increase the number of aircraft operations authorized by FAA
regulations on October 18, 1986.  See 49 U.S.C. App. 2454(c)(5)(C);
Pet. App. 172a;  J.A. 90.  See also 49 U.S.C. App. 2458(e)(1).  (FAA
Administrator may not increase the number of takeoffs and landings
from that authorized by FAA regulations on October 18, 1986).
Furthermore, although some of the authorized flight slots are
currently unused, commercial airlines must decide whether to schedule
flights for currently unused slots.  C.A. App. 170, 314.  Finally,
decisions on whether to use larger aircraft are also made by the
commercial airlines and require FAA approval.  J.A. 91.

   Thus in some respects, respondents' asserted injuries resulting
from the Master Plan are far from certain.  This uncertainty places
respondents' standing in question.  See Simon v. Eastern Kentucky
Welfare Rights Organization, 426 U.S. 26, 43-45 (1976);  Warth v.
Seldin, 422 U.S. 490, 504-507 (1975).

   Yet the Master Plan does call for changes that will facilitate
increases in airport traffic.  The Plan includes new aircraft gates
capable of handling larger aircraft than before.  Pet. App. 41a;  J.A.
91.  It also includes an additional taxiway turnoff to reduce aircraft
time on the runway and thereby improve airport capacity.  Pet. App.
41a;  Pltf. Exh. 16 at 10.  The Plan itself anticipates, and proposes
changes that will foster, an increase in the number of flights and
passengers.  See Pet. App. 41a;  C.A. App. 170, 314, 330;  Pltf. Exh.
16 at 10.

   Since respondents' claims of injury from increased traffic at
National Airport are in part attributable to the Master Plan, it
appears to us that respondents have asserted a sufficiently concrete
and personalized injury, traceable to the actions of petitioners.  And
since the Master Plan could not have been adopted and cannot be
implemented without the Board of Review, respondents' injury can be
remedied by the relief they seek.  /8/

   B. Respondents' Claim Is Ripe

   Ripeness has two dimensions.  First, a claim must be sufficiently
ripe to meet Article III case or controversy requirements.  Second,
the ripeness doctrine is also premised on prudential considerations.
See Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974).
In this case, we believe that the Article III requirements have been
met because there is a real conflict between the parties, and the
action taken by the petitioners assertedly causing harm to the
respondents (the decision not to veto the Master Plan) has already
occurred.  Thus the ripeness concerns here are prudential in nature.
Although the Board of Review did not exercise its veto authority with
respect to the Master Plan, we conclude that respondents' challenge to
that authority is nevertheless ripe.

   As this Court made clear in Bowsher v. Synar, 478 U.S. 714, 727 n.5
(1986), the fact that a mechanism for controlling official conduct is
not exercised does not necessarily render unripe a dispute regarding
that mechanism.  Bowsher involved a contention that the Comptroller
General may not be authorized to carry out executive functions because
he is an agent of Congress, and that his status as an agent of
Congress, and that his status as an agent of Congress was shown in
party by a statutory provision making him removable by that body.  A
question of ripeness was raised, however, because that power of
removal had never been exercised (or even threatened).  This Court
found the case ripe for review because "it is the Comptroller
General's presumed desire to avoid removal by pleasing Congress, which
creates the here-and-now subservience to another branch that raises
separation-of-powers problems." 478 U.S. at 727 n.5 (internal
quotation marks omitted).  Thus, the very existence of the removal
mechanism was held sufficient to affect the role of the Comptroller
General.

   Although the threat of removal of an official is not identical to
the threat of disapproval of his actions, the logic of Bowsher is
applicable here.  The Board of Review's veto power undoubtedly has an
impact on the Airports Authority, whether the power is exercised or
not, as the Authority contemplates formulation of the proposals that
must be considered by the Board.

   Similarly, in Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987),
this Court reached the merits of the severability of a legislative
veto provision that had never been used.  That provision had not been
used because the controversy arose after such devices had been
invalidated in INS v. Chadha, 462 U.S. 919 (1983).  Although this
Court found it unnecessary to discuss the question of ripeness, the
court of appeals had considered the issue and concluded that the
matter was ripe.  See Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550,
1556 (D.C. Cir. 1985).  /9/

   Additionally, the Third Circuit found the controversy ripe for
review in Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979,
986-988 (1986), cert. granted, 485 U.S. 958, cert. dismissed, 488 U.S.
918 (1988), in circumstances closely analogous to those here.  In
Ameron, the court reached the merits of a challenge to the Comptroller
General's statutory authority to extend the length of an automatic
stay of contract implementation by the government following a protest
of the award of the contract.  The Comptroller General had not
exercised the challenged authority;  the court nevertheless held the
controversy ripe because the Comptroller General's ability to exercise
the power was found to have an actual impact on the contracting
process.

   We also note, however, that in Clark v. Valeo, 431 U.S. 950 (1977),
this Court summarily affirmed a decision of the D.C. Circuit, which
had found that a challenge to a congressional veto provision was not
ripe for review because the veto provision had not been used.  Clark
v. Valeo, 559 F.2d 642, 649 (in banc).  But in Clark, the court of
appeals went on to point out that the challenge to the legislative
veto mechanism arose before Congress's period to exercise its veto
power had expired, and Congress had adjourned without acting.  In
contrast, in this case, Board of Review consideration of the Master
Plan, as proposed by the Airports Authority, has been completed.

   Thus, we believe the challenge to the Board of Review's veto power
is ripe for judicial determination.  The analysis set out in Abbott
Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967), supports this
conclusion.  That analysis focuses on "the fitness of the issues for
judicial decision" and "the hardship to the parties of withholding
court consideration." Id. at 149.  /10/ The issue here is "fit for
judicial decision" because, in addition to the "here-and-now
subservience" analysis suggested by Bowsher, the Board of Review has
taken all necessary steps regarding approval of the Master Plan.  The
review process is therefore final, making the case concrete.  See
Abbott Laboratories, 387 U.S. at 148-149.

   Furthermore, as a result of the imminent implementation of the
Master Plan, respondents are threatened with the injuries they allege
unless they prevail in this challenge.  Thus, we believe the Abbott
Laboratories standards have been met.

   II. THE STATUTORY LEASE CONDITION REQUIREING THE APPOINTMENT OF
MEMBERS OF CONGRESS IS CONSTITUTIONAL IN THE UNUSUAL CIRCUMSTANCES OF
THIS CASE

   Respondents challenge the validity of the Board of Review, claiming
that it violates the constitutional separation of powers, as well as
the bicameralism requirement (Art. I, Sections 1 and 7), and the
Presentment Clauses (Art. I, Section 7, Cls. 2, 3).  J.A. 10.
Respondents also argued below, though they did not allege in their
complaint, that service on the Board of Review by Members of Congress
is inconsistent with the Appointments Clause (Art. II, Section 2, Cl.
2), and the Incompatibility and Ineligibility Clauses (Art. I, Section
6, Cl. 2).  Pet. App. 19a, 53a-54a.

   We agree with respondents that separation of powers principles, as
well as the bicameralism and presentment requirements, sharply
restrict the manner in which Congress or its agents may act within our
constitutional system.  Nevertheless, we believe that the Board of
Review's authority is constitutional in the special, limited context
of this case.

   It is clear that a State may, consistently with the Constitution,
appoint Members of Congress to state offices.  It is also clear that
Members of Congress are precluded by specific provisions of the
Constitution from serving on a federal Board of Review that has veto
power over the actions of a federal agency or that otherwise exercises
federal governmental authority.  In the present case, the Airports
Authority's Board of Review is created and appointed by the Airports
Authority, which is a creature of state and local law, but the federal
Airports Act itself specifies that such a Board is a condition for the
federal lease.

   Although such an arrangement does not violate any specific
constitutional prohibition, we believe that, in most circumstances,
such a statutory condition would be unconstitutional because it would
pose a threat of congressional aggrandizement and of significant
intrusion on the functions and responsibilities of the federal
Executive Branch.  Because of a highly unusual combination of
circumstances, however, we conclude that the statutory lease condition
at issue here does not pose such a threat and is permissible.

   A. States May Appoint Members Of Congress To State Offices

   It is undisputed that States may appoint Members of Congress to
state offices.  Indeed, the Framers specifically considered whether to
prohibit Members of Congress from holding state offices, and
explicitly decided against such a limitation.  Thus, if a State,
acting entirely on its own and without federal inducement, appointed
Members of Congress to a state Airports Authority, the appointments
would be constitutional.

   As ratified, the Constitution contains an Incompatibility Clause
that bars Members of Congress from simultaneously holding federal
office, /11/ and an Ineligibility Clause that prohibits Members of
Congress from being appointed to federal offices that were created, or
for which the "Emoluments" were increased, during their congressional
tenure.  /12/ Neither Clause prohibits Members of Congress from
holding state office.

   Introduced at the Constitutional Convention by Edmund Randolph as
part of "the Virginia Plan," these provisions originally did include a
prohibition against holding state office.  See 1 M. Farrand, The
Records of the Federal Convention of 1787 (1966 ed.) 20-21.  See
generally Signorelli v. Evans, 637 F.2d 853, 859-862 (2d Cir. 1980).
While there was considerable discussion of the aspects of Randolph's
proposal prohibiting Members of Congress from holding federal offices,
the Framers decisively rejected the prohibition of simultaneous state
appointments.  Charles Pinckney moved to strike it, and Roger Sherman
seconded this proposal, explaining:  "It (would) seem that we are
erecting a Kingdom at war with itself.  The Legislature ought not to
be fettered in such a case." 1 M. Farrand, supra, at 386.  The
proposed state office ineligibility provision for Members of the House
of Representatives was then defeated by an 8 to 3 vote (ibid.), and
James Wilson commented:  "By the last vote it appears that the
convention have no apprehension of danger of state appointments." Id.
at 393.  /13/

   Three days later, a similar proposed state office ineligibility
provision for Senators was also rejected, with Pinckney urging that
"the States ought not to be barred from the opportunity of calling
members of (the Senate) into offices at home.  Such a restriction
would also discourage the ablest men from going into the Senate." 1 M.
Farrand, supra, at 428-429.  See also 1 W. Benton, 1787:  Drafting the
United States Constitution 711, 722, 726-727 (1986).

   During the ratification debates, James Madison confirmed the
rejection of a prohibition against Members of Congress serving in
state offices.  In The Federalist, No. 56, he defended the proposed
House of Representatives against an attack that it would be too small
to have adequate knowledge of the interests of its constituents by
noting, among other points, that, "(t)he representatives of each State
* * * will probably in all cases have been members, and may even at
the very time be members, of the State legislature * * *." The
Federalist Papers 348 (C. Rossiter ed. 1961).

   Thus, the text and history of the Constitution make clear that
States may appoint Members of Congress to hold state offices.  Indeed,
the practice of appointing Members of Congress to state positions has
continued into modern times.  /14/

   B. Members of Congress May Not Hold Other Federal Offices, Exercise
Federal Executive Functions, Or Legislate Without Bicameralism And
Presentment

   In contrast, separation of powers principles sharply constrain the
role of Congress and its Members at the federal level.  As discussed,
under the Ineligibility and Incompatibility Clauses, Members of
Congress may not hold other "Office(s) under the United States"
simultaneously with congressional office;  nor may they be appointed
to a "civil Office under the Authority of the United States," which
was created or for which "Emoluments" were increased during their
congressional tenure.  See notes 11 & 12, supra.  These limitations
themselves reflect an important separation of powers principle.  See
Bowsher v. Synar, 478 U.S. 714, 722 (1986).

   More fundamentally, Congress may not exercise the functions of the
Executive Branch.  "The Constitution sought to divide the delegated
powers of the new Federal Government into three defined categories,
Legislative, Executive, and Judicial, to assure, as nearly as
possible, that each branch of government would confine itself to its
assigned responsibility." INS v. Chadha, 462 U.S. 919, 951 (1983).
Thus, federal executive functions may not be entrusted to an
individual over whom Congress retains removal power.  Bowsher, 478
U.S. at 726-727.  The consequences of such an arrangement would be
that "Congress in effect * * * retain(s) control over the execution of
the Act and * * * intrude(s) into the executive function.  The
Constitution does not permit such intrusion." Id. at 734.  Instead,
"once Congress makes its choice in enacting legislation, its
participation ends." Id. at 733.  Although Congress has "abundant
means to oversee and control its administrative creatures," including
"durational limits on authorizations and formal reporting
requirements" (Chadha, 462 U.S. at 955 n.19), Congress may not itself
execute the law.  Id. at 955;  see also Springer v. Philippine
Islands, 277 U.S. 189, 201-202 (1928);  J.W. Hampton Jr., & Co. v.
United States, 276 U.S. 394, 406 (1928).

   In exercising its legislative power, moreover, Congress must
observe the requirements of bicameralism (Art. I, Section 1 and
Section 7, Cl. 2) and presentment to the President (Art. I, Section 7,
Cls. 2, 3).  These requirements are "integral parts of the
constitutional design for the separation of powers." Chadha, 462 U.S.
at 946.  Thus, Congress "may not exercise its fundamental power to
formulate national policy by delegating that power to one of its two
Houses, to a legislative committee, or to an individual agent of the
Congress." Bowsher, 478 U.S. at 737 (Stevens, J., concurring in the
judgment).  For "(i)f Congress were free to delegate its policymaking
authority to one of its components, or to one of its agents, it would
be able to evade 'the carefully crafted restraints spelled out in the
Constitution.'" Id. at 755, quoting Chadha, 462 U.S. at 959.

   As a result, just as it is clear that a State, acting entirely on
its own volition, may appoint Members of Congress to a Board of
Review, so too it is equally clear that, at the federal level,
Congress may not require the appointment of its Members to a Board of
Review that holds veto power over the actions of a federal agency or
that otherwise exercises federal governmental power.  In addition to
possible Incompatibility and Ineligibility Clause problems, such a
requirement would violate fundamental separation of powers principles
because Congress would, through its Members, be exercising federal
executive functions.  See Bowsher, 478 U.S. at 732-734.  Moreover, to
the extent that the Members' actions in such a context were viewed as
legislative, those actions would also be impermissible because they
would be undertaken without bicameralism or presentment.  Chadha, 462
U.S. at 951-959.

   C. Although A Federal Condition That States Appoint Members Of
Congress Would Be Impermissible In Most Circumstances, The Condition
Is Not Unconstitutional In The Limited Circumstances Of This Case

   In our view, a federally imposed condition on a grant or
authorization to the States -- that States appoint Members of Congress
to state offices and thereby exercise state authority -- would be
unconstitutional in most circumstances.  The reason is not that such a
requirement would violate the Incompatibility and Ineligibility
Clauses;  by their terms, those Clauses apply only to offices of the
United States.  For a similar reason, such a requirement would not
violate the requirements of bicameralism and presentment -- discharge
of the duties of a state office is not an exercise of federal
legislative power.  Instead, such a condition would, in most
circumstances, be unconstitutional because it would allow Members of
Congress to evade the "carefully crafted restraints" of the
Constitution (Chadha, 462 U.S. at 959) -- to act in an
extra-legislative capacity after enacting a statute, and thereby to
threaten the Executive Branch's exclusive responsibility for federal
executive functions.  Although we believe that a conclusion of
unconstitutionality will attend such a condition in most instances, we
believe that, in the unusual circumstances of this case, such a
conclusion is not warranted.

   1. At the outset, we emphasize that the powers of the Airports
Authority -- and of the Board of Review -- derive from state
authority.  This is a necessary, but far from sufficient, condition
for constitutionality.  /15/ Both Virginia and the District of
Columbia have enacted valid statutes authorizing the operations of the
Airports Authority and the Board of Review, and, indeed, without those
statutes, the Authority and the Board could neither exist nor
function.  This exercise of sovereign power by Virginia and by the
District has an independent stature and should not be minimized.  We
strongly disagree with the court of appeals' conclusion that the
Airports Authority's Board of Review is exercising federal authority.
In our view, the court of appeals' analysis unjustifiably denigrates
the significance of the independent enactments by Virginia and the
District.  The state and local governments are neither ciphers nor
parrots of the federal government;  their legislative enactments are
entitled to weight and respect in evaluating the character of their
creations.  /16/

   This state character of the Airports Authority bears emphasis.  The
federal Airports Act itself does not create the Board of Review, just
as it does not create the Airports Authority.  The federal legislation
provides authority for the Secretary of Transportation to enter into a
long-term lease arrangement with an Airports Authority established by
Virginia and the District of Columbia.  The Airports Authority itself
was created by legislative acts of Virginia and the District of
Columbia, and it is wholly independent of the federal government.  See
Pet. App. 87a-118a (Virginia legislation);  id. at 119a-147a (District
of Columbia legislation);  49 U.S.C. App. 2456(b)(1).  And those
jurisdictions amended their previously passed ordinances in order
expressly to empower the Airports Authority -- which they alone had
created -- to establish a Board of Review.  Pet. App. 111a, 143a.  The
powers of that Board, in turn, are defined in the Airports Authority's
bylaws.  Id. at 151a-154a.  In short, the Airports Authority is
clearly created -- and the Board of Review is authorized to act -- by
the enactments of Virginia and the District of Columbia, rather than
by the Airports Act.  /17/

   The court of appeals' analysis -- that the Board of Review is
exercising federal authority -- also has the potential to create
serious problems in a wide range of instances unrelated to this case.
As noted, the court concluded that the Board wields federal power
because the nature of the Board is spelled out in the Airports Act;
as a result, the court concluded, the Board is "'exercising
significant authority pursuant to the laws of the United States.'"
Pet. App. 10a.  But the fact that a federal statute enumerates
requirements, which are then the basis of state or local action, does
not transform the state action into federal action.  We note that
there are numerous federal grant and regulatory programs that operate
on a cooperative federalism model and in which state plans must
conform to federal requirements.  See, e.g., Wilder v. Virginia Hosp.
Ass'n, 110 S. Ct. 2510, 2513 (1990) (Medicaid);  International Paper
Co v. Ouellette, 479 U.S. 481, 489-490 (1987) (Clean Water Act).  Yet
it has never been suggested that, in such circumstances, all
constitutional provisions governing the federal government's exercise
of power (including the Appointments Clause) apply to the state
government's implementation of such plans.  (Indeed, pursuant to the
court of appeals' decision, the Airports Authority itself -- not
simply the Board of Review -- may be "'exercising significant
authority pursuant to the laws of the United States.'") Under the
court of appeals' analysis, significant new questions about the
structure and operation of these programs would be raised;  the
court's analysis of federal authority fails to appreciate the
independent validity of the state and local statutes, and should be
rejected.  /18/

   Although the issue is placed in proper perspective by recognizing
that the Airports Authority operates pursuant to state law, such
recognition serves only to focus the issue, not to resolve it.  If the
exercise of state authority were sufficient in itself to validate a
statutorily imposed condition like the one in this case, a massive
loophole in the separation of powers requirement would be opened.  For
instance, many areas in which the Executive Branch plays an important
role in administering cooperative programs with the States could be
changed to a structure in which States would be given funds only if
they appoint Members of Congress to state offices with veto power over
the expenditure of those funds.  Federal assistance to state programs
for roads, schools, housing, and health care each could be made
dependent on state appointment of Members of Congress with veto or
other power over major actions, while at the same time leaving no role
for the federal Departments of Transportation, Education, Housing and
Urban Development, or Health and Human Services.  Thus, while the
exercise of state authority is essential to the validity of the Board
of Review, it represents only the first step in the analysis.  /19/

   2. An additional, and in our view, essential element present in
this case is that, unlike most instances in which congressional
participation might be made a legislative condition, there is here a
reasonable basis for the appointment of Members of Congress "in their
individual capacities, as representatives of users of (the airports)."
49 U.S.C. App. 2456(a)(1), reprinted at Pet. App. 75a.  See also Pet.
App. 151a (Airports Authority bylaws);  id. at 175a (lease).  Indeed,
Members of Congress have a special and distinctive relationship with
these airports.  This relationship was stressed by Secretary of
Transportation Dole in her testimony to Congress as it considered the
Airports Act;  she noted that "Members of Congress are heavy users of
the air transportation system" and that congressional service requires
"many trips back to (congressional) districts." Proposed Transfer of
Metropolitan Washington Airports:  Hearings on H.R. 2337 Before the
Subcomm. on Aviation of the House Comm. on Public Works and
Transportation, 99th Cong., 2d Sess. 110 (1986).

   As individuals, Members of Congress whose districts are not near
the seat of government, and who must frequently commute between the
capital and their constituencies, are especially heavy users of
National and Dulles airports.  (And Members from Virginia, the
District of Columbia, and Maryland -- who are the least likely to be
frequent users -- are specifically excluded from the Board of Review.
See 49 U.S.C. App. 2456(f)(1).) Thus, these individuals are well
suited to represent the interests of all travelers who use these
airports.

   To be sure, Members of Congress are also users (or potential users)
of roads, schools, hospitals, social security, and a myriad of other
federally supported programs, but their use of these airports is
qualitatively different.  At most, Members of Congress are users of
these other programs to the same extent as other citizens.  Here, in
contrast, Members of Congress are individual users of the two
Washington-area airports to a far greater degree than most other
citizens, and in view of the necessities of their office (involving
frequent trips to and from their home districts), this characteristic
is predictable and inevitable.

   Members of Congress have a special responsibility to travel to and
from their districts in order to attend to their legislative duties
and at the same time to keep in close touch with the people they
represent, and this responsibility underscores their concern with the
quality of service afforded by the area's airports.  Indeed, the
importance of travel to and from legislative sessions is recognized by
the Constitution itself, which provides (in Art. I, Section 6, Cl. 1)
that in the course of such travel, Members shall "in all cases, except
Treason, Felony, and Breach of the Peace, be privileged from Arrest."

   Furthermore, there is clearly a legitimate interest in guarding
against excessive parochialism in favor of local residents at the
airports serving the thousands of people who travel to the national
capital to visit, to see the national government, and to conduct
business;  there would, presumably, be no constitutional objection to
a non-congressional Board of Review composed of citizen
representatives of airport users.  Because Members of Congress are
frequent individual users of the airports, it is not implausible for
them to fulfill that role in this limited context.  /20/

   3. The constitutional validity of the Board of Review is, in our
view, further supported by the presence in this case of two additional
circumstances:  the anomaly of federal operation of major-air-carrier
airports, and the agreement of the Executive and Legislative Branches
on the organizational structure under which the airport property has
been leased.

   a. The particular setting of this case -- ownership and operation
of major-air-carrier airports -- is one in which a federal role itself
is an anomaly, and the Airports Act explicitly recognizes this
anomaly.  See 49 U.S.C. App. 2451(5), reprinted at Pet. App. 60a;  see
also Pet. App. 2a.  All other major-air-carrier airports in the nation
are operated at the state, regional, or local level.  As a result,
this setting differs significantly from those in which there is a
generally established federal presence.  /21/

   It might be objected that, just as other States and localities have
the authority to own and operate airports without appointing a Board
of Review, so too Virginia and the District of Columbia should have
that ability.  But that objection relates to the federalism concern
(whether the condition is an undue invasion of state and local power)
rather than the separation of powers concern (whether the condition is
an incursion on the Executive Branch).  Since the question here is one
of separation of powers, the anomaly of any federal role militates
against a conclusion that a threat to executive powers is presented by
the limited circumstances of the condition under review.  /22/

   b. Finally, the conclusion that there is no threat of incursion on
the Executive Branch is supported by the absence of any conflict
between the political branches.  Both the Executive and Legislative
Branches believe that the Airports Act arrangement is valid.  To be
sure, the agreement between the Executive and Congress is not
dispositive:  "The assent of the Executive to a bill which contains a
provision contrary to the Constitution does not shield it from
judicial review." Chadha, 462 U.S. at 942 n.13.  But this Court has
stressed that, in such circumstances, the courts are to be at their
most deferential.  See Dames & Moore v. Regan, 453 U.S. 654, 668
(1981);  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-638
(1952) (Jackson, J., concurring).  See also Mistretta v. United
States, 488 U.S. 361, 384 (1989).

   In this case, Congress expressly raised a question with the
Executive Branch regarding the constitutionality of the proposed
airports legislation, and the Department of Justice responded that it
believed the statute would withstand constitutional scrutiny.  See
J.A. 25-35.  Since this is a separation of powers matter in which the
two branches directly affected by the legislation have carefully
considered the issue and found the statute valid, the Court should be
hesitant to strike it down.  See Rostker v. Goldberg, 453 U.S. 57, 64
(1981) (deference to judgment of Congress is "certainly appropriate"
when that body has specifically considered the question of the
statute's consitutionality).  See also McCulloch v. Maryland, 17 U.S.
316, 401 (1819) ("An exposition of the constitution, deliberately
established by legislative acts, on the faith of which an immense
property has been advanced, ought not to be lightly disregarded.").
Furthermore, the Executive Branch, in the person of the Secretary of
Transportation, made an independent decision to sign the lease with
the Airports Authority (Pet. App. 186a);  the Airports Act authorized,
but did not require, the Secretary to enter into such a lease.  See 49
U.S.C. App. 2454(a), reprinted at Pet. App. 64a.

                      * * * * *

   We have often argued before this Court the need to vindicate and
preserve separation of powers principles.  In most circumstances, a
congressional condition like the one at issue here would collide with
those principles because it would threaten a significant incursion on
the Executive Branch.  But, given the prerequisites of state authority
and lack of coercion, and of the special and distinctive interests of
Members of Congress as individuals -- combined with the anomaly of a
federal role in operating major-air-carrier airports and the specific
Executive assent to the challenged provision -- service by Members of
Congress on the Airports Authority's Board of Review does not violate
the Constitution.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General /23/

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CLIFFORD M. SLOAN

      Assistant to the Solicitor General

   DOUGLAS LETTER

      Attorney

   MARCH 1991

   /1/ The $3 millino in 1987 dollars is "computed using the GNP Price
Deflator." 49 U.S.C. App. 2454(b)(1).

   /2/ The Board of Review is to consist of nine members -- two each
from (1) the House Public Works and Transportation Committee;  (2) the
House Appropriations Committee;  (3) the Senate Commerce, Science, and
Transportation Committee;  and (4) the Senate Appropriations
Committee;  and one at large from either body on an alternating basis.
 49 U.S.C. App. 2456(f)(1).

   /3/ Although the United States, which intervened in the court of
appeals, is a respondent pursuant to Sup. Ct. Rule 12.4, references in
this brief to respondents are to CAAN and the two individual
plaintiffs.

   /4/ The Board of Review has exercised its veto power once, on an
unrelated matter (a proposal concerning the Dulles Access Road).  Pet.
App. 38a;  J.A. 83-84, 91-92.

   /5/ The court also rejected petitioners' claim that respondents
should be required to exhaust their administrative remedies because
respondents were participants in an ongoing study of noise problems
being conducted by the Authority.  Pet. App. 39a.

   /6/ The court also summarily agreed that respondents were not
required to exhaust administrative remedies.  Pet. App. 9a.

   /7/ Despite its holding, the court directed that "actions taken by
the Board to this date not be invalidated automatically on the basis
of our decision." Pet. App. 19a (citing Buckley v. Valeo, 424 U.S. at
142).

   /8/ See 49 U.S.C. App. 2456(h) (if Board of Review is unable to
carry out functions by reason of a judicial order, Airports Authority
shall have no authority to perform any of the acts required to be
submitted to the Board of Review);  Pet. App. 154a (Airports Authority
bylaws provision to same effect);  id. at 178a (lease provision to
same effect).

   /9/ See also EEOC v. CBS, Inc., 743 F.2d 969 (2d Cir. 1984);  EEOC
v. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir. 1984).  But see Muller
Optical Co. v. EEOC, 743 F.2d 380 (6th Cir. 1984).

   /10/ Although Abbott Laboratories arose in an administrative law
context, it remains the "leading discussion of the doctrine" of
ripeness.  Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983).

   /11/ The Incompatibility Clause provides:  "(N)o Person holding any
Office under the United States, shall be a Member of either House
during his Continuance in Office." Art. I, Section 6, Cl. 2.

   /12/ The Ineligibility Clause provides:  "No Senator or
Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall
have been encreased during such time." Art. I, Section 6, Cl. 2.

   /13/ A previsou motion to strike the state ineligibility provision
had failed on a 5-4 vote.  See 1 M. Farrand, supra, at 217;
Signorelli, 637 F.2d at 861 n.8.

   /14/ For example, selected Members of Congress serve on the Board
of Directors of the Massachusetts Centers of Excellence.  See Def.
Exh. 9.

   /15/ In Springer v. Philippine Islands, supra, this Court held, on
separation of powers grounds, that the Philippines legislature could
not participate in management of government corporations even if the
management were viewed as a proprietary act (277 U.S. at 203);  the
Court also expressed skepticism about whether Congress could similarly
participate in the management of a government corporation on a
proprietary rationale (id. at 204-205).  In that context, however, the
Court was considering the activities of the legislative branches
(Congress and the Philippines legislature) vis-a-vis the Executive
Branch at the same level of government -- in other words, the
congressional aggrandizement model outlined at pages 24-26, supra.
That analysis does not directly address the permissibility of such a
condition operating at a different level of government (as in this
case), and, especially, at a different level of government that
clearly has the power to make the challenged appointments on its own.

   /16/ Two complicatinos concerning the staet and local character of
the Authority should be noted.  Frist, a question arises whether the
Airports Authority should be viewed as a creature of state law, since
one of its parents is the District of Columbia.  The District of
Columbia, of course, is not a State under the Constitution.  See,
e.g., Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452-453 (1805).
Nevertheless, particularly because the District of Columbia currently
acts under "home rule" authority (see District of Columbia
Self-Government and Governmental Reorganization Act, Pub. L. No.
93-198, 87 Stat. 774 (1973)), the power that is delegated to the
Authority is best seen as comparable to state or local pwer for
purposes of these federal constitutional restrictions.  Cf. Key v.
Doyle, 434 U.S. 59, 68 n.13 (1977) (D.C. Code "is a comprehensive set
of laws equivalent to those enacted by state and local governments");
District of Columbia v. John R. Thompson Co., 346 U.S. 100, 110 (1953)
(upholding delegation of lawmaking authority to District and
analogizing authority conferred to "the police power of a state");
Metropolitan R.R. v. District of Columbia, 132 U.S. 1, 7-9 (1889)
(holding that, under applicable statutes, District is a municipal
corporation rather than a department of the United States government);
 Hobson v. Hansen, 265 F. Supp. 902, 919-920 (D.D.C. 1967)
(three-judge court) (Wright, J., dissenting) (noting that District of
Columbia officials are not considered officers of the United States
for purposes of the Appointments Clause).  Furthermore, the Authority
is not simply a creature of the District, but, in very substantial
part, a creature of the Commonwealth of Virginia as well.

   A second complication is suggested by the holding of this Court
that congressional approval of a compact among States converts those
States' agreements into "federal law" for purposes of interpreting the
compact.  Cuyler v. Adams, 449 U.S. 433, 440 (1981).  But that
principle does not alter the fact that the Airports Authority draws
its power from state authority, and is thus itself exercising state
power.  See Lake Country Estates, Inc. v. Tahoe Regional Planning
Agency, 440 U.S. 391, 398-400 (1979) (For purposes of 42 U.S.C. 1983,
acts of a regional entity created by an interstate compact are under
color of state law rather than pursuant to federal law);  Seattle
Master Builders Ass'n v. Pacific N.W. Elec. Power Co., 786 F.2d 1359,
1365 (9th Cir. 1986) (Members of a council implementing an interstate
compact need not be appointed pursuant to the Appointments Clause;
although congressional consent gives an interstate compact "some
attributes of federal law," the "states ultimately empower the Council
members to carry out their duties"), cert. denied, 479 U.S. 1059
(1987).

   /17/ Because the Airports Authority and the Board of Review are
creatures of state and local law, respondents' Appointments,
Ineligibility, and Incompatibility Clause objections are unavailing;
those provisions relate to offices or officers "of the United States"
and "under the United States." See Art. I, Section 6, Cl. 2;  Art. II,
Section 2, Cl. 2.  See also Pet. App. 53a-54a.

   /18/ Although the existence of congressional power to remove
members of the Board of Review might well serve to invalidate the
statute, we disagree with the court of appeals' conclusion that the
members of the Board of Review are removable by Congress.  Pet. App.
18a.  The Virginia and District statutes, the Airports Authority
bylaws, the Airports Act, and the lease are all silent on the subject
of removal;  under long-settled principles, if there is silence on
removal, the appointing authority retains removal authority.  See
Myers v. United States, 272 U.S. 52, 119 (1926);  Carlucci v. Doe, 488
U.S. 93, 99 (1988).  The Airports Authority's resolutions appointing
members of the Board of Review, moreover, explicitly state that "(t)he
terms of each of these appointments are as follows, except that the
Board of Directors may remove for cause an appointee to the Board of
Review prior to the conclusion of this term." J.A. 58 (emphasis
added);  see also J.A. 47.  Although the court of appeals rested its
conclusion on the fact that Congress could remove a member of the
Board of Review from a congressional committee and therefore remove
him from the Board of Review, it is more consistent with general
principles of removal authority -- and with the Airports Authority's
own interpretation of its bylaws and authority -- to conclude that the
Authority retains removal power, and that this power is exclusive.
The provisions of the Airports Act relating to membership on the Board
of Review, 49 U.S.C. App. 2456(f), are addressed to appointment, not
to continuing membership or removal.

   /19/ A related point is the fact that the state and local
enactments authorizing the appointment of the Board of Review -- and
the actions of the Authority and the state and local governments in
agreeing to the lease -- were entirely uncoerced.  But this fact also
is a necessary, but not sufficient, condition for validity.

   This Court recently reiterated, in considering a condition in a
spending program, that, absent undue coercion, a State may protect
itself by refusing to accept a federal proposal containing a condition
that the State does not like.  South Dakota v. Dole, 483 U.S. 203, 211
(1987).  See also Steward Machine Co. v. Davis, 301 U.S. 548, 589-590
(1937).  In such a situation, the principal concern is
federalism-related, and the self-protection rationale for States has
considerable force.  But this logic falters when applied to a
situation involving separation of powers concerns.  Although the
States themselves provide their own defense against unwanted federal
encroachment, they have no institutional concern in protecting the
federal Executive Branch from an incursion by Congress.

   /20/ As the district court points out, the legislative history
contains references to teh maintenance of congressional control,
sometimes in stark terms.  See Pet. App. 49a n.19.  As the district
court also points out, however, these statements must be seen in
perspective, as particular statements in a floor debate and as part of
a legislative history that also includes references to the Members of
Congress as individual users and as representatives of users.  Id. at
49a-50a.  Particular remarks in the course of a floor debate should
not be the basis for invalidating a statute.  Unlike language in the
statute itself, they do not affect the structural arrangements created
by the law, nor do they control the responsibilities and obligations
of those implementing the law.

   The specification of committee membership for eight of the nine
members of the Board of Review may also be seen to undermine the
contention that they are appointed as individuals, since the criterion
of committee membership is related to congressional duties, rather
than to individual use of the airports.  Although this aspect of the
statutory lease condition is troubling (and was not part of the
proposed statute presented to the Justice Department for review, see
J.A. 34-35), we do not believe that this requirement of committee
membership is sufficient to undermine the individual user rationale.
If that rationale is otherwise valid, it is not invalidated by the
fact that the Board is largely limited to Members with the greatest
transportation expertise.

   /21/ In contrast, the regulation of civil aviation has, of course,
long been, and remains, a vital federal responsibility.  See, e.g., 49
U.S.C. 106 (responsibilities of the FAA).  The federal role in the
regulation of civil aviation is unaffected by the Airports Act.

   /22/ See also Transfer of National and Dulles Airports, Hearings on
S. 1017 and S. 1110 Before The Subcomm. on Aviation of the Senate
Comm. on Commerce, Science and Transportation, 99th Cong., 2d Sess. 41
(1986) (statement of Secretary Dole) ("Almost since they opened, there
has been general agreement that National and Dulles should not be
operated as conventional Federal agencies.");  132 Cong. Rec. 32,138
(1986) (Rep. Gingrich) ("(M)anaging legitimately Federal activities is
a big enough job.  It is time to allow a regional authority to do a
regional job, that of managing airports.").

   /23/ The Solicitor General is disqualified in this case.