[67] BOWNES, Circuit Judge (dissenting).

I have no quarrel in this case with the majority's rejection of much of the reasoning underlying the district court opinion. There were three principle reasons set forth by the district court in support of its conclusion that plaintiffs had a likelihood nf success on the merits: first, that, under this court's decision in Martinez v. Rhode Island Housing Mortgage Finance Corp., 738 F.2d 21 (1st Cir. 1984), the 1981 OBRA amendments constitute an implicit repeal of the public housing income mix provisions of section 1437d(c)(4)(A); second, that the percentage limitations imposed by section 1437n should be applied on a project-by-project rather than a nationwide basis; and, third, that Chad Brown was probably post-October 1, 1981 housing for purposes of the section 1437n limitations. I agree fully with the majority's conclusion: that Martinez is not controlling here because it concerns section 8 housing to which the section 1437d(c)(4)(A) income mix provisions do not apply; that section 1437n's percentage limitations apply on a nationwide basis; and that the question of whether Chad Brown is pre- or post-October 1, 1981 housing is not relevant to this appeal because there is no evidence that the policies in effect would violate the section 1437n limitations as construed on a national basis. Were these the only issues before this court, I would be compelled to concur.

But it does not follow automatically that, because the district court's reasoning was faulty in some respects, the preliminary injunction must be vacated. Other legal grounds may support the preliminary injunction, and review of the issuance of a preliminary injunction is generally limited to an abuse of discretion standard. University of Texas v. Camenisch, 451 U.S. 390, 393, 101 S.Ct. 1830, 1832, 68 L.Ed.2d 175 (1981); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981). Because I believe that the legislative intent underlying the original income mix provisions, as restated in conjunction with the 1981 OBRA amendments and the 1987 Housing Act, forbids skipping over families because they are too poor, I do not think that the district court abused its discretion and that the injunction should be vacated. Accordingly, I dissent.

As noted in the majority opinion, the income-mixing provisions in dispute here are amendments to the 1937 Housing Act passed as part of the Housing and Community Development Act of 1974. The relevant section, now codified at 42 U.S.C. § 1437d(c)(4)(A), provides:

(4) the public housing agency shall comply with such procedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to:

(A) . . . the establishment of tenant selection criteria . . . designed to assure that, within a reasonable time, the project will include families with a broad range of incomes and will avoid concentrations of low-income and deprived families with serious social problems, but this shall not permit maintenance of vacancies to await higher income tenants where lower income tenants are available[.]

Although providing that tenant selection criteria should "assure" that a mix of tenant incomes is obtained, this section plainly does not articulate what particular criteria or methods of selection should be employed. Nowhere does the statute either require or condone the practice of skipping over very low income families in favor of those with higher incomes. Apparently contemplating that a variety of methods might be employed, the statute refers only to one particular method — allowing vacancies to await higher income families in order to obtain a mix — and forbids it.

Faced with statutory language which is thus ambiguous as to method, the need to review the applicable legislative history becomes apparent. The most relevant legislative history I have been able to uncover is the report prepared by the Senate Banking, Housing and Urban Affairs Committee to accompany S. 3066, a bill which eventually became the 1974 Act in lieu of a House-sponsored alternative. The pertinent section of that report, which is examined in a piecemeal fashion in the majority opinion, is set out at some length below in order to provide context for the committee's statement.

Occupancy [of public housing] would be limited to families who at time of entry are low-income families, and at least 20% of all new housing would be occupied by very low-income families. Very low income families are defined as families whose income does not exceed 50% of the median income for the area. While it is expected that public housing agencies will continue to give particular attention and priority to very low-income families, the Committee expects that in the long run we would have more housing developments which are not occupied solely by the very poor, but by a cross section of lower income households, representing a variety of household types. Experience has demonstrated that a cross-section of occupancy is an essential ingredient in creating economically viable housing as well as a healthy social environment. It is recognized by the Committee that existing public housing in many of our largest cities has become a concentration of very poor families and often predominately of families receiving public assistance. The provisions of this Act make it possible to develop new public housing with a cross section of low income families. At the same time, it is clear that steps must be taken to alter the occupancy in existing public housing to achieve a similar cross-section of occupancy. It is the intent of the Committee that the Secretary of HUD take appropriate steps to assist public housing agencies to achieve this cross section of occupancy in existing public housing within a reasonable time period. However, the Committee does not approve the imposition of occupancy requirements which have the effect of denying admission to any family on the basis that its income is too low.

S.Rep. No. 693, 93d Cong., 2d Sess. 40 (1974), reprinted in 1974 U.S. Code Cong. Admin. News 4273, 4311 (emphasis added). When a very low income family, whose name is on a waiting list and which otherwise would be selected to occupy the next available apartment in a public housing project, is skipped over in favor of a family with higher income, the poorer family is in effect denied admission on the basis that its income is too low. It is thus apparent to me that, on the basis of the above-quoted report, Congress — or at least the Senate committee which drafted the bill — disapproved of the very skipping practice involved here as a method for achieving an economic mix in public housing.

In the face of this expression of congressional intent, the question on appeal is, I believe, whether HUD and Corcoran, in exercising their discretion to implement the facially ambiguous language of section 1437d(c)(4)(A), were free to choose skipping as a tenant selection procedure. This question is a difficult one, but, at least in the present context of reviewing a preliminary injunction, I am satisfied that the answer is HUD and Corcoran were not free to choose skipping.

In setting out the reasons for my conclusion, it is important to emphasize that the question I have posed is not one confronted head-on by the majority. In discussing HUD's regulatory authority in section V.A. of its opinion, for instance, the majority notes that HUD's regulations can be set aside only if they "exceed the statutory grant or are arbitrary capricious or an abuse of discretion." Then, without discussion, the majority states: "We see no such problems here." Maj. op. at 567. Discussion of the legislative history, as it impacts on HUD's choice of a method for achieving economic mix, is relegated to a series of footnotes in the latter part of the opinion.

In one footnote, the majority dismisses the whole idea of distinguishing between the goal of achieving an economic mix and the method of achieving that goal. "This is a distinction without a difference," the majority states, because preventing HUD from employing any method "would be a revocation of some of the authority granted to the Secretary in section 1437d(c)(4)(A)." Maj. op. at 569 n. 12. The majority has, of course, assumed its own conclusion by treating as incontestable the idea that section 1437d(c)(4)(A) authorizes skipping. Two things are evident to me: section 1437d(c)(4)(A) says nothing about skipping; and the legislative history of the section disapproves it.

To support its dismissal of the goal/method distinction, the majority offers only HUD's unsubstantiated assertion that skipping must be authorized by section 1437d(c)(4)(A) because it is the only way to "assure" that an economic mix is achieved "within a reasonable time." Id. But HUD's own regulations belie this assertion. HUD's current "standards for PHA tenant selection criteria," for instance, provide that PHA's shall collect certain information about likely tenants and, "[u]tilizing [this] information, develop criteria, by preference or otherwise, which will be reasonably calculated to achieve the basic objective" of economic mix. 24 CFR § 960.205(c)(8) (1987) (emphasis added). If "or otherwise" has any meaning, I assume it means that there are selection criteria, other than preferences for higher income families, which can achieve an acceptable economic mix. While not attempting to exhaustively list such alternative selection procedures, I assume they would include, as plaintiffs suggest, efforts to broaden the diveristy of the applicant pool through promotional activities. With an economically-diverse pool, the housing agency could select names in order off the waiting list and still achieve a mixed-income tenant population.

Moreover, HUD's first post-OBRA regulations on tenant selection policies, released on May 21, 1984, as "final regulations," specifically forbade skipping over very low income families. Under that version, 24 CFR § 960.204(b) provided that tenant selection

policies and procedures shall be designed to . . . attain, within a reasonable period of time, a tenant body in each project composed of families with a broad range of incomes and rent-paying ability that is generally representative of the range of incomes of lower income families, but families whose incomes are between 50% and 80% of area median income shall not be given a priority by virtue of their income.

49 Fed.Reg. 21492 (1984) (emphasis added). HUD obviously believed at that time that failing to allow low income families (families with incomes between 50% and 80% of median) to skip over very low income families (families with incomes less than 50% of median) would not impossibly frustrate the income-mixing goal. Moreover, even when HUD rescinded the antiskipping rule in the guise of a technical correction, it did so in order "to remove language included erroneously in § 960.204 which might preclude otherwise appropriate means of implementing the [income mix] requirements of § 960.205(c)." 50 Fed.Reg. 9269 (1985). Contrary to its position here, then, HUD has acknowledged that a variety of means exist to achieve the goal of mixed-income tenant populations.

HUD's assertion that skipping is the only method which will achieve a satisfactory mix within a "reasonable time" is equally unpersuasive. "Reasonable time" is by nature a flexible and not a rigid term — it connotes a desire to achieve the income-mixing goal over a period of time, but not necessarily to do so in the most expeditious manner conceivable. But that is exactly how HUD would have this court read the statute's timeliness requirement for, short of actually evicting very low income tenants in favor of low income tenants — something which HUD argues is almost impossible to do — the most drastic means available of achieving an economic mix is skipping over otherwise qualified very low income families when filling a vacancy.

Having rejected the goal/method distinction in one footnote, the majority dismisses the legislative history underlying the 1974 Act in another. In the midst of its discussion of the 1981 OBRA amendments, the majority quotes in the text two sentences from the same 1974 Senate Report I set out above — sentences which describe the rationale behind economic mix in public housing. Maj. op. at 570-71. Referenced to this quote is footnote 14, where the majority discusses that part of the report dealing with how a mix of incomes is to be achieved. There, the majority first chides plaintiffs for citing to only a portion of the report, which reads: "public housing authorities will continue to give particular attention and priority to very low income families." Taken in context, the majority states, this language does not show a strong disapproval for the Chad Brown income-mixing scheme.

Second, apparently disregarding its own advice about considering the committee statements in context, the majority dismisses as inapposite what I consider to be the most relevant statement in that report: "However, the committee does not approve the imposition of occupancy requirements which have the effect of denying admission to any family on the basis that its income is too low." Despite the fact that this sentence appears in the midst of a discussion about how to achieve a mix of incomes, the majority says that it refers not to skipping or other preference schemes, but to admission criteria that would act as an absolute and permanent bar to admission for certain classes of families. I recognize that such an absolute bar would be improper and that HUD has so provided in its regulations. See 24 CFR § 960.204(c)(1) (1987). But I do not believe that the committee's reference to policies "which have the effect of denying admission to any family," in the context of a discussion of economic mix, can be said to pertain to absolute bars and not skipping. As the record makes clear, the demand for public housing far exceeds the supply, and vacancies arise seldomly in the normal course. Denying a family access to a particular vacancy through skipping thus may entail denying them access to public housing altogether for a substantial period. The majority's overly technical distinction between delay and denial serves only to frustrate Congress's obvious desire not to keep poor families out of public housing on the ground that they are too poor.

My interpretation of the committee's statement is, I believe, borne out by the Conference Report prepared in conjunction with the 1981 OBRA amendments. As the majority notes, for present purposes the central element of the 1981 OBRA amendments was the addition of 42 U.S.C. § 1437n. Section 1437n establishes income eligibility requirements for both section 8 housing and public housing, and reserves the "lion's share" of both for very low income families like the plaintiffs in this case. See Maj. op. at 564. The relevant portion of the Conference Report accompanying section 1437n — some of which is also set out in the majority opinion — bears repeating here. This portion appears in a section of the Conference Report entitled "Economic Mix in Assisted Housing Programs," a section which attempts to reconcile the adopted House version of the bill with an unadopted Senate version containing some additional provisions. One of those unadopted provisions would have deleted the income-mixing mandate of section 1437d(c)(4)(A). The Conference Report reads:

The conference report does not contain these [Senate-sponsored] provisions. However, given the changes in income eligibility required by this conference report, the conferees direct the Secretary of HUD to rescind the [income eligibility regulation for individually-owned assisted housing]. The conferees are also concerned that in carrying out the policy of creating a mix of families having a broad range of incomes in assisted housing that families whose incomes are between 50 and 80 percent of median not be given a priority for occupancy by virtue of their income. In addition, the conferees do not intend that a community should be required to achieve the same distribution of incomes between lower income families living in assisted housing and lower income families living in the community at large. Such a rigid formula can inhibit a community from fulfilling the basic purpose of the assisted housing programs without delay — to aid lower income families in obtaining a decent place to live.

H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess. 695 (1981), reprinted in 1981 U.S. Code Cong. Admin. News 1010, 1054. This report makes three things clear about the intent of Congress: (1) an eligible family should not be permitted to skip over another on the basis that it has a higher income, (2) income-mixing requirements are to be administered flexibly and not rigidly, and (3) the primary purpose of public housing is to provide shelter for lower income families. In Martinez v. Rhode Island Housing Mortgage Finance Corp., 738 F.2d 21 (1st Cir. 1984), this court recognized as much.

As already noted, I do not believe that Martinez is controlling here because that case concerned section 8 housing to which the section 1437d(c)(4)(A) income-mixing requirements do not apply. But Martinez also analyzed the very OBRA amendment Conference Report here at issue, and it is thus certainly relevant to the present discussion. The following is the relevant excerpt from Martinez. It speaks in terms of section 8 housing, but, because the legislation and legislative history to which it pertains (section 1437n) apply equally to the kind of public housing at issue here, the words "public housing" might easily be substituted for the words "section 8 housing":

The OBRA amendments and the accompanying legislative history evince a congressional intent against preferences for higher income applicants for section 8 housing. [The new income eligibility requirements] plainly demonstrate Congress's desire to focus the section 8 program on very low income families. To continue to grant a preference to low income applicants is at odds with this statutory policy. The legislative history of the OBRA amendments contains a very explicit statement that "families whose incomes are below 50 and 80 percent of median (low income families) not be given a priority for occupancy by virtue of their income."

738 F.2d at 25 (footnote omitted). The Martinez admonition not to sanction a preference scheme that "is at odds with . . . statutory policy" applies to this case as well.

Recently, Congress has spoken again and reiterated the broad anti-skipping theme of the OBRA amendments. The context was the Housing and Community Development Act of 1987, passed by the Congress in December of 1987 and signed by the President on February 5, 1988. The 1987 Act essentially makes technical amendments to the section 1437n income eligibility requirements by adding two new subsections. One such amendment is a prohibition on policies that totally exclude non-very low income families. Section 1437n as amended does not refer to skipping, but both the Senate and House Committee Reports on the 1987 Act expressly deal with skipping and explicitly disapprove it. The Senate Report states:

The Committee fully expects that public housing agencies and other owners will make reasonable efforts to find potential tenants with very low incomes and will not by-pass prospective tenants with very low incomes in order to serve those with higher incomes if eligible households with very low incomes are awaiting admission.

S.Rep. No. 21, 100th Cong., 1st Sess. 16 (1987) (emphasis added).

The House Report is even more emphatic:

However, the Committee is sensitive to the plight of people who are on long waiting lists for public and other HUD-assisted housing and recognizes that it is fundamentally unfair to skip over applicants with lower incomes who have been on the waiting list for a longer period of time in order to admit higher-income families who have applied more recently. The Committee fully expects that PHAs and other landlords of any HUD-subsidized housing will not skip over families with lower incomes if there are eligible families with lower incomes who are waiting to be admitted. The Committee expects that, in implementing this provision, HUD will prohibit PHAs and other landlords from engaging in such unfair practices. The Committee further intends that these and other statutory provisions intended to benefit families eligible for assisted housing shall be fully enforceable by applicants pursuant to the Administrative Procedure Act, Section 1983, and the implied cause of action doctrine.

H.Rep. No. 122, 100th Cong., 1st Sess. 12-13 (1987) (emphasis added), 1988 U.S. Code Cong. Admin.News, 3328, 3329.

The antiskipping message of the 1981 and 1987 reports is, I believe, consistent with the way I have interpreted the original section 1437d(c)(4)(A) income-mixing provision. The majority, on the other hand, finds the Conference Report to be "troubling" and representative of "schizophrenia" within Congress about public housing. Rather than reconcile the 1981 and 1987 reports with the 1974 Act, the majority treats them as additional chapters in "an ongoing struggle in Congress as between granting priority to those families with the lowest incomes and providing for a mix of incomes." Maj. op. at 570. The issue thus becomes, for the majority, whether the OBRA Conference Report or the 1987 reports can be said to "override or modify the [1974] statute itself," and whether they "manifest Congress's affirmative intent to repeal a policy and a grant of regulatory authority set out in a statute." Maj. op. at 571. Relying on a recent decision of the District of Columbia Circuit, and especially a concurrence to that opinion, the majority concludes that the reports cannot carry such weight. See International Brotherhood of Electrical Workers, Local Union No. 474 v. NLRB, 814 F.2d 697 (D.C. Cir. 1987); id. at 715-20 (Buckley, J., concurring). Disagreeing with the majority's analysis, I cannot concur in its result.

To begin with, International Brotherhood is inapposite here. That case involved the issue of whether legislative history set down in conjunction with an amendment that did not pass could be applied retroactively to limit an agency's discretion under a preexisting statute. The holding of the court was a simple one: the legislative history could not be applied retroactively because "courts have no authority to enforce principles gleaned solely from legislative history that has no statutory reference point." Id. at 712 (emphasis in original). The facts in International Brotherhood are altogether different from those in this case. First, the most relevant legislative history here is that in the 1974 Senate Report, a document which surely has a "statutory reference point" since it accompanied and purported to interpret the very statute at issue here — section 1437d(c)(4)(A). Second, the 1981 Conference Report also accompanied a new statutory provision — more stringent limits on the number of families other than very low income families which could reside in public housing — and thus provides insight into Congress's intent in passing that provision. To be sure, the Conference Report also refers to a provision which would have eliminated the economic mix provisions for public housing and which was not passed. But in so doing, it does not repeal or amend the economic mix provision, as the majority contends, but rather gives an interpretation to that provision which is fully consistent with the 1974 report's interpretation. Finally, the 1987 reports also accompanied new legislation — amendments to the section enacted in 1981 — and give an interpretation of section 1437d(c)(4)(A) which is consistent with both the 1974 and 1981 interpretations.

Even if International Brotherhood were indistinguishable from this case, I do not think it should be controlling here. The majority in this case neglects to mention that International Brotherhood was a radical departure from well-established precedent in virtually every other circuit. The Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits had all previously considered the same point of statutory construction addressed in International Brotherhood and reached a contrary conclusion. See International Brotherhood, 814 F.2d at 704, 709 n. 46 (citing cases); St. John's General Hosp. v. NLRB, 825 F.2d 740, 743 n. 4 (3d Cir. 1987) (collecting cases). To justify this departure from the law of other circuits, the court in International Brotherhood could point only to one Supreme Court case where the Court said it was "hesitant to rely on . . . inconclusive legislative history either to supply a provision not enacted by Congress, or to define a statutory term enacted by a prior Congress." United States v. American College of Physicians, 475 U.S. 834, 846-47, 106 S.Ct. 1591, 1598, 89 L.Ed.2d 841 (1986) (emphasis in original) (citations omitted). Without the same issue of statutory construction before this court, I am reluctant to give International Brotherhood a wholesale endorsement. Moreover, the majority's primary reliance here is not even on the holding in International Brotherhood, but on Judge Buckley's concurrence. I simply cannot ascribe such controlling weight in this circuit to a concurrence from an distinguishable case in another circuit which is itself at odds with the law of every other court of appeals to consider the issue.

Ironically, although it dismisses the explicit statements from some later Congresses on the basis of International Brotherhood, the majority is willing to infer pro-skipping sentiment from the action of other later Congresses. For example, the majority treats three amendments to section 1437d(c)(4)(A), which exempt from income-mixing certain kinds of housing projects and which grant preferences to certain classes of families, as evidence of congressional acquiescence in skipping. See Maj. op. at 572 n. 18. I cannot follow the majority's logic. To begin with, given the excess demand and insufficient supply of public housing, even a non-skipping income-mixing scheme would inevitably cause some delays. It does not, therefore, imply acquiescence in skipping for Congress to exempt certain kinds of housing projects from such delays. Further, the fact that Congress granted preferences to some particularly poor families certainly does not imply that they also approved of skipping over other families on the ground that they are too poor. If anything, such preferences demonstrate that when Congress wanted to grant preferences, it did so explicitly. More importantly, in the face of the explicit and consistent anti-skipping views expressed since 1974 in legislative history, there is no need to embark on a search for inferences. Congress's view is clear.

Because this case involves a challenge to a HUD regulation, I think the merits of that challenge must be judged by the generally applicable Supreme Court standard: whether, in promulgating the regulation, "the Secretary exceeded his statutory authority or [whether] the regulation is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977) (quoting 5 U.S.C. § 706(2)(A), (C)); see also Schweiker v. Gray Panthers, 453 U.S. 34, 43-44, 101 S.Ct. 2633, 2639-40, 69 L.Ed.2d 460 (1981). I recognize, as does the majority, that section 1437d(c)(4)(A) expressly delegates to the HUD Secretary the power to prescribe standards for achieving an economic mix, and thus that the HUD regulations involved here are "legislative rules" and not "interpretive rules." See generally K. Davis, Administrative Law Treatise § 7:8 (1979). As such, the regulations are generally entitled to "legislative effect" because the "Secretary, rather than [the] courts, [has] the primary responsibility for interpreting the statutory [provision]." Schweiker, 453 U.S. at 44, 101 S.Ct. at 2640 (quoting Batterton, 432 U.S. at 425). "A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner." Batterton, 432 U.S. at 425, 97 S.Ct. at 2405.

At the same time, courts cannot "abdicate review in these circumstances." Schweiker, 453 U.S. at 44, 101 S.Ct. at 2640. We must take seriously our obligation to ensure that the Secretary has "not exceeded his statutory authority," bearing in mind that "'the reviewing court,' not the agency, 'shall decide all relevant questions of law.'" Mayburg v. Secretary of Health and Human Services, 740 F.2d 100, 105 (1st Cir. 1984) (quoting 5 U.S.C. § 706). The Court has repeatedly admonished that, although according deference to administrative action, reviewing courts must not "slip into judicial inertia" or "rubberstamp" administrative decisions. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965); NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)); see also Mayburg, 740 F.2d at 105 (collecting cases). In Schweiker, for instance, the Court, while acknowledging that the challenged regulation had "legislative effect," still felt compelled to review the legislative history of the authorizing statute to ensure that the regulation was consistent with congressional intent. I think that a similar course should be followed here and, as already stated, I believe the challenged regulation in this case is not consistent with the congressional intent underlying the income-mixing statute.

In Mayburg v. Secretary of Health and Human Services, 740 F.2d 100 (1st Cir. 1984), this court set forth a general framework for reviewing an agency's interpretation of a statute — an approach premised on the idea that before simply affirming an agency's exercise of discretion, "we must ask why courts should ever defer, or give special weight, to an agency's interpretation of a statute's meaning." Id. at 105 (emphasis in original). Two types of justification for deference were identified. First, the court must decide whether the agency has some specialized knowledge which would put it in a better position than the courts to know what Congress intended. In determining this, courts should look to: whether the question of interpretation is closely related to an area of agency expertise; whether the interpretation was set down near the time the statute was enacted and, if so, whether the interpretation has proved workable and been longstanding; and whether the interpretation has withstood a subsequent enactment of the statute. These factors do not persuade me that extraordinary deference is due here. Although HUD certainly has greater expertise than this court in deciding what tenant selection policies will achieve an economic mix, I have already noted that HUD's regulations belie the claim that skipping is the only effective method of achieving a mix. And while the skipping regulation involved here was enacted shortly after the 1974 Act, see 40 Fed.Reg. 33446 (1975), it has not been consistently followed, as evidenced by the initial post-OBRA regulations which forbade skipping. Additionally, the 1981 Conference Report and 1987 committee reports cast serious doubt on whether a regulation authorizing skipping, even if proper pursuant to the 1974 Act, should survive later amendments.

The second justification for deference identified in Mayburg is congressional intent that such deference be accorded. 740 F.2d at 106. This justification is a restatement of the distinction between "legislative rules" and "interpretive rules," the point being that "legislative rules" are entitled to greater deference precisely because Congress, through granting authority to prescribe rules, so intended. In reviewing a challenged regulation, it is, therefore, important to glean from the statute and from the legislative history the degree to which Congress intended to confer open-ended discretion on the agency. See S. Breyer R. Stewart, Administrative Law and Regulatory Policy 286 (2d ed. 1985) (construing Mayburg) (discussing factors that must be reviewed to determine "whether a 'legislative rule' is 'within the statute's authority'"). The fact that section 1437d(c)(4)(A) authorizes HUD to prescribe standards for income-mixing does not insulate from review the substance of every conceivable standard HUD might promulgate. If Congress intended that certain standards were not acceptable, HUD is not free to contravene Congress's intent through the exercise of congressionally-delegated discretion. Here, Congress incorporated one limit on HUD's discretion into the text of section 1437d(c)(4)(A): HUD is not permitted to prescribe standards which permit vacancies to exist in public housing when eligible tenants are on a waiting list. I believe that Congress clearly signalled disapproval of another standard — skipping — in the legislative history.

I am aware that others might find the legislative history in this case to be less clear than I have, and that courts in any event must be wary of providing judicial gloss to statutory provisions based on legislative history. Cf. NLRB v. Wentworth Institute, 515 F.2d 550, 555 (1st Cir. 1975) ("It is, in any event, doubtful practice to exalt isolated glosses above statutory text."). Were the court compelled to issue at this time a final decision on the merits, this might be a difficult case. In the present posture of reviewing the propriety of a preliminary injunction, however, the court is not so compelled.

The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than at a trial on the merits. A party thus is not required to prove his case in full at a preliminary injunction hearing, and the findings of fact and conclusions of law are not binding at trial on the merits. In light of these considerations, it is generally inappropriate for a federal court at the preliminary injunction stage to give a full judgment on the merits.

University of Texas v. Camenisch, 451 U.S. at 395, 101 S.Ct. at 1834; see also LeBeau v. Spirito, 703 F.2d 639, 642-43 (1st Cir. 1983) (in reviewing preliminary injunction, court's findings "as to the merits of the case are not final but should be understood to be merely statements of probable outcomes based on the record as it existed before the district court"). Our task is simply to decide whether the granting of a preliminary injunction was an abuse of discretion. Camenisch, 451 U.S. at 393, 101 S.Ct. at 1832; Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981). In this case involving a close balancing of congressional intent and agency discretion, I find no abuse of discretion in the district court's action.

The majority in this case, however, does not apply an abuse of discretion standard. Despite the fact that both plaintiffs and defendants agree that such a standard is the proper one, the majority says that, because the district court's legal reasoning was in some respects faulty, no deference should be accorded it. See Maj. op. at 574 (citing Planned Parenthood, 641 F.2d at 1009 ("It is also well-settled, however, that the application of an improper legal standard in determining the likelihood of success on the merits is never within the district court's discretion.")). Moreover, ignoring the Supreme Court's admonition in Camenisch, the majority sua sponte converts this preliminary injunction review into a full disposition on the merits: "In sum, we find that the Chad Brown income-mixing procedure meets the requirements of the HUD regulations considered in this opinion and that these regulations are within the authority granted to the Secretary of HUD under 42 U.S.C. § 1437d(c)(4)(A)." Maj. op. at 573 (emphasis added). In Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 755-57, 106 S.Ct. 2169, 2176-77, 90 L.Ed.2d 779 (1986) — a case on which the majority relies to support its plenary disposition — the Supreme Court noted that there is an exception to the general Camenisch rule that courts reviewing a preliminary injunction will only review for an abuse of discretion and should not finally dispose of the merits. The Court identified a number of factors which help determine when the underlying merits of a preliminary injunction are "ripe for [final] review": whether the law is "clear"; whether final disposition would "save the parties the expense of further litigation"; and whether "the probability of success on the merits depends on facts likely to emerge at trial." 476 U.S. at 756-77 n. 7, 106 S.Ct. at 2176 n. 7. The majority never discusses why any of these factors render this an appropriate case for plenary review, but it seems to me that: even a final disposition of the issue before us will not end the current litigation because a number of other claims, including claims under the Administrative Procedure Act and the Fair Housing Act, remain to be resolved; the legal issues are not "clear," see Maj. op. at 569, 570 (characterizing the legislative history issues in this case as posing a "troubling question," a "roadblock" and a "dilemma"); and, because the parties have not requested a final disposition on the merits, they may seek in the district court to supplement the record with regard to the very issue now before us.

Consistent with Camenisch, I believe that the district court's decision to enter a preliminary injunction is entitled to some deference, even though the legal conclusions underlying it were in part ill-founded. I also see no reason to reach out and decide the final merits at this preliminary stage. And, even if, like the majority, I were to consider de novo and finally determine the propriety of an injunction, I think the law supports the district court's decision to issue one. Accordingly, I move on to consider two other issues raised by HUD and Corcoran.

First, HUD argues that, even if plaintiffs have met the likelihood of success on the merits prong of the test for a preliminary injunction, plaintiffs have not established the other three requirements: (1) that plaintiffs will suffer irreparable harm if the injunction is not granted; (2) that plaintiffs' injuries outweigh any harm which granting the injunction would inflict on the defendants; and (3) that the public interest will not be adversely affected by the granting of the injunction. See Planned Parenthood, 641 F.2d at 1009. HUD's position seems to be that plaintiffs have utterly failed to present any proof regarding these three requirements, and thus that the district could not have found that the Planned Parenthood test was met. This argument is without merit. It is incontestable that the district court had before it evidence that three named plaintiffs were currently on the waiting list for housing at Chad Brown and were members of the very low income group which was subject to be skipped over if the HUD/Corcoran policy was carried out. It is also undeniable that, in issuing the preliminary injunction, the district court explicitly relied on the four-prong test set down in Planned Parenthood, and concluded: "Having reviewed the facts, federal statutes and their legislative history and case law, the Court is satisfied that all four criteria are met and therefore grants the motion for a preliminary injunction." I find no basis in the record for HUD's assertion that, despite this statement, the district court did not actually consider evidence relevant to three of these criteria.

In reviewing the irreparable harm, balance of interests, and public interest prongs, there can be no question that the abuse of discretion standard applies. See cases cited supra. There has been no such abuse here. The fact that two of the plaintiffs have previously been offered but refused an apartment in a different housing project is irrelevant. The record reveals that each time they refused, they were placed on the bottom of the waiting list; if they qualify to be on the waiting list, they certainly qualify to have their names selected from that list through a lawful procedure. Equally irrelevant is the fact that the plaintiffs may not be at or near the top of the list. No matter what number on the list the plaintiffs' names are now, each time a similarly-situated family above them on the list is skipped over (unless by someone also above the plaintiffs on the list), the plaintiffs are harmed by not progressing toward the top of the list. This harm is irreparable since, as HUD argues, it is "difficult, if not impossible to evict . . . without good cause" tenants once they have been given housing. HUD Reply Brief at 14 n. 10. Should plaintiffs eventually prevail in their claim that skipping is prohibited, their prospects for obtaining housing will still be permanently impaired by the effect of skipping during the pendency of this lawsuit. Given this potential for irreparable harm, I cannot say the district court abused its discretion in finding that harm to the plaintiffs outweighed any potential harm to HUD, Corcoran or the public interest in not being able to pursue, through questionable means, the goal of achieving "within a reasonable time" a mixed-income tenant population.

I now turn to HUD and Corcoran's final argument: that the district court improperly granted injunctive relief which will inure to the benefit of nonparties. HUD's claim is premised on the fact that the plaintiffs in this case have requested, but not yet been granted, class certification. Characterizing the district court's injunction as class-wide relief, HUD says that the district court's injunction is inconsistent with the lack of class standing. Nowhere, however, does the district court characterize its relief as classwide. Rather, the district court said that it was enjoining HUD and Corcoran's preferential scheme so that the " [p]laintiffs will be given a fair chance to be considered for such housing as Congress intended." (Emphasis added). The fact that, in order to grant complete relief to the plaintiffs, the entire skipping program had to be enjoined, does not mean that the district court improperly acted to protect nonparties. See Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979) ("injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs"). The flaw in HUD's argument is its claim "that injunctive relief here may be provided to fully protect the named plaintiffs ( e.g., by providing that they not be skipped) without extending the injunction in any way to non-named putative class members." HUD Reply Brief at 14. As discussed above, the harm to plaintiffs here in not just the fact that they might be skipped over, but also the fact that families above them on the waiting list might be skipped over, preventing their progress up the list. Unless the injunction also protects families ahead of the plaintiffs, then, the harm to the plaintiffs cannot be avoided. The scope of the injunction was proper. See Dionne v. Bouley, 757 F.2d 1344, 1355-57 (1st Cir. 1985) (district court may properly deny class certification where injunctive or declaratory relief in favor of named plaintiffs alone would necessarily inure to the benefit of the entire putative class).

For the foregoing reasons, I would affirm the district court's grant of a preliminary injunction.