barrier to entry represented by the seventy five percent passenger carry requirement and the improper delegation of control over entry into the market to competitors and and we do not argue with it with the legal standard of review it's a daunting one if you know we need to show that there was no rational relationship between the classifications and the statute and in terms of the means instant nexus that well it was rational for congress to decide that it wanted four carriers circular logic and so yes what it did it passed the statute that bumped one evergreen international and left four in the marketplace well of course if you assume the result which is what that logic best then of course you're fine rationality but if you look at delaware river big and there are certain cautions wonderland for me because it is is it possible for in this case a motion force for judgment on the pleadings to be filed and they did and is it possible for the judge then to rule on that and no rationality in the purported purpose because the problem doesn't exist just like the water shortage just like the housing situation in arm against a minor stroke that purported problems doesn't exist the legislat purpose is not rational when i go on and then i show that the nexus between the classification and even assuming stability use the issue is not rational when i go on and show that seventy five percent passenger ferry requirement is an absolute barrier not something that will foster parents in your area not something that will foster male carriage but it's an absolute barrier to entry i have proven it's around and that's the real error in w thank your honor i'd like to go a little bit into this whole question of what's our burton and how does this for you legislation that congress enacts for constitutionality because i think that there's an important factor here that isn't out o n the table this morning and that is this is not ordinary legislation this is like just lation did not go through the traditional congressional vetting machinery that is what gives rise to the normal presumptions that this court makes in terms of the validity and rationality of constitutionality of what congress does normally somebody introduces a bill it's assigned to committees in both houses eventually  hour in a house senate conference committee that was considering the appropriations bill for the homeland security department immediately after the nine eleven attacks it was that's correct admitting that's correct normally that would occur in the legislative process and this court would rightly defer to things that congress might have thought they were doing when they enacted a piece of legislation i would submit to you that in a case like this where there was deliberate evasion of the normal congressional process neither judge singleton nor this court ought to be in the position of saying well this is what congress was trying to do we haven't a clue what congress was trying to do all we have is the statement on the floor of a senator who sponsored this piece of legislation we have one complaint by a congressman who caught wind of what was happening congressman cunningham and said on the floor this is a travesty this is one senator trying to put a company out of business and you're tying that kind of legislation onto an emergency appropriation piece of legislation and we shouldn't be doing that we shouldn't be in the business of an acting legislation to drive a competitor of of the senator's friends out of business i don't want you to remember when this happened but at that time there were five airlines that were carrying  passed mail and had been for years this legislation one of those five alaska central express out of business alaska central had been carrying this same kind of mail under contract with the postal service since one nine can totally sympathize with whatever greene was going through but they got into this two weeks before the statute was an active after the statute had gone through all this process and at that time as congressman cunningham put it this is this  statute was designed to get rid of one competitor the way that they did that was to enter into definitional games and i think that some court has got to look at the definitional game that they play they set this thing up and said there are going to be three requirements for carrying bypassed mail in the alaska system and one of those is that you have to be a part one twenty one certified carr ok my clients have said under oath in this mitigation that if they knew that was a requirement they would have gone out and done it even though it would take them a year cost them a million dollars or so to do this is a lucrative business really and they've almost cut out of business entirely because of this statute but what if congress do without or one of the senators does that that he swept through congress he said we're going to say you must be one twenty one certified as of a year and a half ago carrying the mail without complaint by anybody and now you tell me that as of a year and a half ago we had to go time travel and comply with a requirement that has never been a requirement something about this now so me making it worse at the same time that he granted their protective orders and denied us discovery he invited us to file brandeis briefs with him to bring him all sorts of extra record stuff so that we could explain to him what the problems work with this legislation and then what did he do he wrote an opinion that said well based on the pleadings i don't see a problem your honor at some point somebody has got to look at senator's expressions on the floor when he explained visitation to the homeland security appropriations bill now as the u s supreme court put it in lucas versus southern california coastal council findings of that nature are there isn't anything else the evidence shows that week that we presented to them we all you need to do is look at this bill what is there about this legislation that will increase passenger service nothing the four airlines that were left in grandfathered in to carry this kind of mail only one of them carries passengers at all the other three don't there is nothing in this legislation that gives those three and the incentive to carry passengers there's nothing in this legislation that penalizes them for not carrying passengers and it was the story told you there was an absolutely impenetrable barrier to lose airlines coming in who will carry passengers that singh shows that the way that the government determines how much they're going to pay for this by fast mail delivery is based on the expenses of those poor airline very expenses are going down and the evidence also shows that one of those four has higher expenses then my client did you average aussie and you're going to drop the expenses you knock them out you're going to drop the expenses ok i think we've got your that context is when there are regulatory enforcement actions brought by an executive agent lottery concerned utility refusing to provide water hookup underlined there that we need to determine as a factual matter because the factual showing is so minimal that all one of the court needs to be able to decide is that it is conceivable that the names that congress selected are rationally related to the end that congress chose to pursue and that is so minimal showing that that the clear president of the supreme court and beach communications in this court in dead men say all the court needs to do is consider whether or not it's conceivable the congress actually had their that's precisely their argument but they say they can't produce any evidence to support now i think that your honor this is my goodness the purposes are absolutely clear from the statute and the means are absolutely clearly related to the purposes of the seventy five percent passenger requirement for example congress was concerned that if another carrier came in it had imagined the new carrier came in and bumped out to competition bumped out the original carrier congress wanted to make sure that there would be at least seventy five can they say it is inconceivable that congress knows that but i just don't think that presenting evidence can produce that since the question is whether it is conceivable now whether congress actually had one purpose or another it doesn't matter whether or not principle that would be obviously deplorable that was the way congress arrived at certain legislation but the point of rational basis review is those sorts of problems are meant to be remedied by political solutions not by judicial solutions i mean and a lot of practice playing the command then we would be legislated back because we would now change the legislation to allow differences relative to one twenty one and differences to load carry and whatever so that we could legislate on the bench who that then we're going to conduct the fact finding that congress is alleged should have happened whether or not it was that it in other words if we take the findings of the judge elucidated as being the reason for the legislation rational basis ok if we decide well there was no fact finding we're going to do the facts writing on those then we're substituting yourself for what congress did or didn't do on the legislative side i think that's a corrections officer i think right again impeach communication the supreme court said look there are any time that the congress chooses to make a line has to make a line drawing determination there are going to be some who are favorably treated and some who are unfavorably treated that line drawing the court said and i'm claim i'm happy to address any where else and of course one way to get around that's one way to address your argument well if there is congress actually an accident of the tender that is a problem that's exactly right your honor but i think our great demonstrates that is very far from the case agree with my absolutely preposterous example muslims neal because there are certain cases your honor where congress makes specific findings that are directly at odds with the ends that congress selected and those very few cases where the supreme court ha there's no question about whose it was twenty one and who's got seventy five percent nobody is arguing about the fact that the somebody got clipped because they fell in between the interpretation of how they wanted to  those facts when they did the legislation you're at one twenty one of your head if you know what you know about it and that sort of thing so i don't think anybody's arguing about who falls into what category or that it's a disputed issue of fact there is how you cut the line and so if we go to the will no longer be sufficient to underwrite going on mail services and fourth i think we can all agree that congress may limit the number of carriers we get what i think is the heart of the matter is that with the questions about fact finding because i think that's important and we're not suggesting that you get into a full blown trial with preponderance of the evidence and we're not suggesting that the trial court becomes a secondary legislature but that the law is clear when you go look at minnesota versus cloverleaf creamery parties may introduce evidence what's the task we the plaintiffs have to convince the court that the legislator facts on which the classification is apparently very strong in this case hypothesize hypothetically  followed up on that for just a moment if i might on the question of fact finding out who's doing what we're not asking that this court or the district court take over the congressional role of sacrifice but i do want to bring this court back like we do with trial courts injuries and nobody has had a chance to examine what the heck is behind those and i just later findings they were simply drafted by senator stevens staff and