The opinion
WASHINGTON, Circuit Judge
(dissenting) .
The central issue here, of course, is whether the Walsh-Healey Act was intended to establish a nation-wide wage standard for Government contractors, or a standard based on wages prevailing in the contractor’s own community. To my mind the language of the statute clearly establishes the latter standard. This court so held in a case decided shortly after the passage of the Act. Lukens Steel Co. v. Perkins, 1939, 70 App. *512 D.C. 354 , 107 F.2d 627 . The opinion— an exhaustive one — was written by Associate Justice Justin Miller, and was concurred in by Associate Justice Fred M. Vinson, who had become a member of this court after serving in Congress during the very period in which the Wálsh-Healey Act was passed. The reasoning of the opinion seems to me unanswerable. And the legislative history there recited shows with complete clarity what Congress intended: that bidders for Government contracts “shall pay the prevailing wages in the community where the work is performed.” 1
Our decision in Lukens was reversed by the Supreme Court on another ground —that the complainants lacked standing to sue. Perkins v. Lukens Steel Co., 1940, 310 U.S. 113 , 60 S.Ct. 869 , 84 L.Ed. 1108 . The obstacle has now been removed by the Fulbright Amendment, passed in 1952. 41 U.S.C.A. § 43a. Technically, in dealing with the present case, we are not “bound” by our decision in Lukens, even though the Supreme Court did not reach the merits of that case. But its reasoning remains sound, and has not been disturbed by anything which has happened since. As far as the argument based on continued administrative interpretation is concerned, I would suppose that we were not entitled to give much weight to action which was until a short time ago completely immune to judicial review. Nor, under the circumstances here, does congressional failure to amend an act already clear on its face seem to be in any sense declaratory of the correctness of the Secretary’s interpretation. The latest pronouncement of Congress — the Fulbright Amendment — certainly makes no such declaration: its passage might suggest, indeed, that Congress was not content with the Secretary’s action, and wished it to be reviewed by the courts. The relevant Committee Report specifically states that failure to amend the “locality” provision of the Act is to be without prejudice to a judicial determination of the meaning of that provision. S.Rep. No. 1599, 82d Cong., 2d Sess. 31 (1952).
It is argued that to give the “locality” provision its ordinary meaning would produce an undesirable result. Bub— whether or not that is so — our function is to determine what Congress thought desirable, rather than to give expression to our own views on social legislation. It is also said that the purpose of the Act would be defeated by such an interpretation. But I think the majority misconceives the purpose of the Act, as revealed in the light of conditions prevailing in 1936, when it was passed. At that time, and before, it was generally thought that the Federal Government lacked power to undertake broad regulation of wages and labor standards. Control of Government contracts was thought possible, however, and in 1931 the Bacon-Davis Act was passed, imposing certain wage regulations in the field of Government construction contracts, 40 U.S.C.A. § 276a et seq., 46 Stat. 1494 . In 1935 that Act was substantially revised and strengthened, 49 Stat. 1011 . The 1935 revision provided — in language derived from the earlier legislation — for wage determinátions based on conditions prevailing in the “city, town, village, or other civil subdivision” where the contract is to be performed. In 1936 the Walsh-Healey Act was passed to cover the field of supply contracts. Here Congress used the “locality” provision we have been discussing. Obviously both acts are based on the same philosophy and point to a standard limited to a fairly small area and to a restricted objective : that of preventing contractors from cutting wages below prevailing community levels in an effort to pare costs and thus be the lowest bidder. As the legislative history shows, there was no thought of raising wages, or of eliminating regional differentials. See Lukens at page 362 of 70 App.D.C., at page 635 of 107 F.2d.
Later, of course, greater breadth of Federal power was recognized. The Su *513 preme Court’s decision in National Labor Relations Board v. Jones & Laughlin Steel Co., 1937, 301 U.S. 1 , 57 S.Ct. 615 , 81 L.Ed. 893 , opened the door to more sweeping congressional action. Problems such as that of the “runaway industry,” which were not intended to be dealt with by the Walsh-Healey Act, but which may underlie the Secretary of Labor’s approach to that Act, may now be dealt with by explicit Federal legislation. Congress has gone far in this direction through the Fair Labor Standards Act and its amendments. Indeed, under an amendment shortly to come into effect, the minimum F.L.S.A. wage will be raised to a dollar an hour. Public Law 381, 84th Cong., 1st Sess. § 3 (1955), U. S. Code Congressional and Administrative News 1955, p. 814. That, of course, is the same as the Secretary’s determination here. Surely it is better to reach decisions of that sort through congressional debate and action, rather than through strained administrative and judicial interpretation of a statute passed years ago for a different and more limited purpose.
. Congressman Greenwood at 80 Cong. Rec. 9993; quoted at page 362 of 70 App.D.C., at page 635 of 107 F.2d, together with numerous similar statements.