AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees v. Robert M. GATES, Secretary of Defense, in his Official Capacity and Linda M. Springer, Director, in her Official Capacity, Appellants, 486 F.3d 1316

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Senior Circuit Judge WILLIAMS joins. Dissenting opinion filed by Circuit Judge TATEL. KAVANAUGH, Circuit Judge. This case arises out of a contentious dispute over the collective bargaining rights of hundreds of thousands of civilian employees of the Department of Defense. Our limited judicial task is to determine whether the Department of Defense has acted consistently with its statutory authority in promulgating certain regulations.

The primary legal question we must decide is whether the National Defense Authorization Act for Fiscal Year 2004 authorizes DoD to curtail collective bargaining rights that DoD’s civilian employees otherwise possess under the Civil Service Reform Act of 1978. We hold that the National Defense Authorization Act grants DoD temporary authority to curtail collective bargaining for DoD’s civilian employees. By its terms, the Act authorizes DoD to curtail collective bargaining through November 2009.

But after November 2009, with certain specified exceptions, DoD again must ensure collective bargaining consistent with the Civil Service Reform Act of 1978. We reverse the District Court’s judgment, and we uphold the DoD regulations at issue in this appeal. I 1. To put together the pieces of the statutory puzzle in this case, one must first appreciate the difference between

Chapter 71 and

Chapter 99 of Title 5 of the U.S. Code.

Chapter 71 of Title 5 codifies the Civil Service Reform Act of 1978 and establishes the right of federal civilian employees, including civilian employees at the Department of Defense, “to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees.” 5 U.S.C. § 7102(2). The Act generally requires agency management to “meet and negotiate” in good faith with recognized unions over conditions of employment “for the purposes of arriving at a collective bargaining agreement.” Id. § 7114(a)(1), (a)(4).

The Act exempts various matters from collective bargaining, such as hiring, firing, suspending, paying, and reducing the pay of employees. See id. §§ 7103(a)(14)(C), 7106(a). Therefore, the Civil Service Reform Act ensures collective bargaining for federal employees, albeit more limited than the collective bargaining rights for private employees. See Nat’l Treasury Employees Union v. Chertoff, 452 F.3d 839, 860-61 (D.C.Cir.2006).

Chapter 99 of Title 5 codifies a

section of the National Defense Authorization Act for Fiscal Year 2004 and sets out a new labor relations framework for Department of Defense employees.

Chapter 99 differs from the

Chapter 71 model in several respects. In particular,

Section 9902(

a) of

Chapter 99 establishes procedures for DoD, in coordination with the Office of Personnel Management, to “establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense.” 5 U.S.C. § 9902(a). (Hereafter, for ease of reference, we will refer only to DoD and not also to OPM.) The “human resources management system” is called the “National Security Personnel System.” Id. Within the National Security Personnel System, the Act authorizes DoD to establish a “labor relations system” to structure bargaining between management and employees. Id. § 9902(m)(l).

Section 9902 of

Chapter 99 in turn contains a complicated set of authorizations and requirements for DoD to follow in establishing the National Security Personnel System and the labor relations system, many, of which are important to this case: • General Requirements for National Security Personnel System — Subsections (b)(3), (b)(1), and (d)(2). Subsection 9902(

b) lists general “system requirements” for the National Security Personnel System. Of relevance here, subsection (b)(3)(

D) states that the system “shall ... not waive, modify, or otherwise affect ... any other provision of this part (as described in subsection (d)).” Subsection (d)(2) in turn says that the “provisions of this part referred to in subsection (b)(3)(

D) are (to the extent not otherwise specified in this title) ... [Chapter] 71 ... and this chapter” (emphasis added). Taken together, therefore, subsections (b)(3) and (d)(2) mean that DoD’s National Security Personnel System may not waive or modify

Chapter 71, which is the provision codifying the Civil Service Reform Act of 1978’s limited collective bargaining rights for federal civilian employees, unless the authority to waive or modify

Chapter 71 is “otherwise specified” in the statute. Subsection (b)(4) of

Section 9902 similarly requires DoD to “ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this

chapter ” (emphases added). Therefore, subsection (b)(4) requires that DoD’s National Security Personnel System ensure collective bargaining, but only “as provided for in” and “subject to the provisions of’ the statute. • Authorization to Create Labor Relations System — Subsections (m)(

l) and (m)(8). Subsection (

m) of

Section 9902 authorizes DoD to create a new labor relations system within the National Security Personnel System. Specifically, subsection (m)(

l) states: “Notwithstanding

section 9902(d)(2), the Secretary ... may establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission.” The “notwithstanding” clause in subsection (m)(

l) indicates that the generally non-waivable provisions listed in subsection (d)(2) — including

Chapter 71 and its protection of limited collective bargaining rights — do not constrain DoD’s authority to develop a labor relations system under subsection (m). Furthermore, subsection (m)(8) broadly states that the labor relations system developed and from time to time adjusted by DoD under subsection (m) “shall be binding on all bargaining units within the Department of Defense” and “shall supersede all other collective bargaining agreements for bargaining units in the Department.” Subsection (m)(9) provides, however, that the authority under subsections (m)(

l) and (m)(8) runs out in November 2009: “Unless it is extended or otherwise provided for in law, the authority to establish, implement and adjust the labor relations system developed under this subsection shall expire six years after the date of enactment of this subsection [that is, six years after November 2008], at which time the provisions of

chapter 71 will apply.” • Additional Authorization — Subsection (h)(1)- Subsection (

k) of

Section 9902 provides additional specific authority for DoD to act in certain specified areas of labor relations. Subsection (k)(

l) states: “Notwithstanding subsection (d), the Secretary of Defense ... shall not be limited by any provision of this title or any rule or regulation prescribed under this title in establishing and implementing regulations relating to — (

A) the methods of establishing qualification requirements for, recruitment for, and appointments to positions; (

B) the methods of assigning, reassigning, detailing, transferring, or promoting employees; and (

C) the methods of reducing overall agency staff and grade levels .... ” Subsection (k)(

l) is not subject to the sunset date of subsection (m)(9). Therefore, DoD will retain the targeted authority conferred by (k)(

l) even after the broader general authority under subsection (

m) runs out in November 2009. 2. After Congress enacted the National Defense Authorization Act in November 2003, DoD began developing the National Security Personnel System. On February 14, 2005, DoD published a proposed system in the Federal Register. See National Security Personnel System, 70 Fed.Reg. 7552. After various DoD employee representatives submitted comments, DoD held several meetings with employee representatives in the spring of 2005. On November 1, 2005, DoD promulgated final regulations setting up the National Security Personnel System. See Department of Defense Resources Management and Labor Relations System, 70 Fed.Reg. 66,116. The regulations curtail the scope of

Chapter 71 collective bargaining in several ways relevant to this appeal: • The regulations permit certain DoD officials to issue “implementing issu-ances” to abrogate any provision of an existing collective bargaining agreement or effectively take any topic off the table for future bargaining purposes. 5 C.F.R. §§ 9901.905(a), 9901.917(d)(1). DoD may also promulgate “issuances” that take topics off the table.

Id. § 9901.917(d)(1). (Issu-ances and implementing issuances are documents issued to carry out DoD policies; implementing issuances relate to the National Security Personnel System, while issuances relate to any DoD policy. See id. § 9901.903.) Under the regulations, both issuances and implementing issuances can have prospective effect, but only implementing issuances can abrogate existing collective bargaining agreements.

See id. §§ 9901.905(a), (c), 9901.917(d)(1). • The regulations broaden the scope of “management rights” — that is, actions that management can take without collective bargaining — beyond the management rights already provided in

Chapter 71. In particular, the regulations permit DoD “to take whatever other actions may be necessary to carry out the Department’s mission.” Id. § 9901.910(a)(2). • The regulations curtail bargaining over (

i) the procedures DoD must follow when exercising management rights and (ii) the “appropriate arrangements” that DoD must make for employees affected by exercises of management rights. Id. §§ 9901.910; 9901.914(a)(2). • The regulations limit collective bargaining rights over pay and benefits for employees of certain DoD units known as “non-appropriated fund in-strumentalities.” These employees’ compensation is not set by statute and is therefore traditionally subject to collective bargaining. See id. § 9901.305. 3. After the regulations were issued, several unions of DoD civilian employees filed suit in the U.S.

District Court for the District of Columbia. They argued that the DoD regulations exceeded its statutory authority — a case of “rulemaking overreach,” as the Unions have put it. Tr. of Oral Arg. 25. The District Court accepted the Unions’ argument in relevant part. In particular, the District Court held that DoD’s regulations violated subsection (b)(4)’s requirement that the National Security Personnel System ensure employees can bargain collectively. See Am. Fed’n of Gov’t Employees v. Rumsfeld, 422 F.Supp.2d 16, 40-45 (2006).

The District Court found that subsection (b)(4) means “the new system must ensure that the principles of collective bargaining are not totally eviscerated.” Id. at 40. The District Court therefore enjoined several components of the regulations (subparts G, H, and I of 5 C.F.R. § 9901), including the expansion of management rights and the authority of the Secretary to issue implementing issuances and issuances. See id. at 41-45. II This case centers on

interpretation of the National Defense Authorization Act. The Unions argue that various DoD regulations “conflict with the Act’s plain language.” Unions’ Br. at 17. We initially explain the roadmap that guides our analysis. If the relevant statutory language is plain and supports the challenged DoD regulations, we must uphold the regulations. See Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 415 (D.C.Cir.1994). If the relevant statutory language is plain but is inconsistent with the DoD regulations, we must hold the regulations invalid. See Brown v.

Gardner, 513 U.S. 115, 122, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); cf. Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6,120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). To the extent a challenged provision of the statute is ambiguous, we give deference to DoD’s authoritative

interpretation so long as that

interpretation is reasonable. See Nat’l Treasury Employees Union v. Chertoff, 452 F.3d 839, 855-56 (D.C.Cir.2006) (citing United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), and Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). 1. At first glance, the relevant provisions of the National Defense Authorization Act may seem contradictory. After all, the five subsections primarily at issue in this case — (b)(3), (b)(4), (d)(2), (m)(l), and (m)(8) — initially appear to work at cross-purposes.

Subsections (b)(3), (b)(4), and (d)(2) seem to bestow a right to collective bargaining as traditionally provided under

Chapter 71 of the Civil Service Reform Act of 1978, while subsections (m)(

l) and (m)(8) simultaneously appear to snatch it away. But upon closer examination, the statutory pieces come together and form a relatively coherent whole, at least for purposes of this case. The key to solving the statutory puzzle is the fact that subsections (b)(3), (b)(4), and (d)(2) together contemplate that collective bargaining under

Chapter 71 is generally available, but only to the extent not otherwise exempted by separate provisions of the statute. Subsection (d)(2) — which is a system requirement as a result of a cross-reference in subsection (b)(3)' — states that

Chapter 71’s protection for collective bargaining is nonwaivable “to the extent not otherwise specified in this title ” (emphasis added). This qualification indicates that subsection (d)(2) can be overridden by an exception in another provision of the statute. Subsection (b)(4) similarly states that the Government must permit employees to “organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this

chapter ” (emphases added). The first italicized phrase — -“as provided for in this chapter” — indicates that subsection (b)(4)’s guarantee of collective bargaining is contingent on collective bargaining being provided by other subsections, such as subsection (d)(2)’s incorporation of the collective bargaining framework of

Chapter 71. In addition, the further qualification in subsection (b)(4) — “subject to the provisions of this chapter” — indicates that, like subsection (d)(2), subsection (b)(4) can be overridden by other provisions of the statute. To summarize so far, subsections (b)(3) and (d)(2) (which incorporate

Chapter 71 bargaining) and subsection (b)(4) may be overridden by other provisions of the statute; furthermore, subsection (b)(4) ensures collective bargaining in the first place only insofar as another subsection of the statute provides for it. At this point in our

summary of the statutory puzzle, however, we pause to note an important point: If the National Defense Authorization Act contained no provisions relevant to collective bargaining other than subsections (b)(3), (b)(4), and (d)(2), the Act would require DoD to adhere to the traditional collective bargaining framework of

Chapter 71, just as the Unions have argued. Enter subsections (m)(

l) and (m)(8). Subsection (m)(

l) states: “Notwithstanding

section 9902(d)(2), the Secretary ... may establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission.” (emphasis added). Subsection (m)(8) adds that “[t]he labor relations system developed or adjusted under this subsection shall be binding on all bargaining units within the Department of Defense” and “shall supersede all other collective bargaining agreements.” The “notwithstanding” clause in (m)(

l) expressly states that the authority to establish a labor relations system overrides subsection (d)(2). So subsection (d)(2) by its terms may be overridden where “specified,” and subsection (m)(

l) provides just such a specification. Therefore, when it crafts its labor relations system, DoD need not follow

Chapter 71’s collective bargaining framework, which otherwise would be required by subsection (d)(2) (as cross-referenced by subsection (b)(3)). It is important to note, however, that DoD’s authority under subsection (m)(

l) is temporary: Under subsection (m)(9), DoD’s authority to establish a labor relations system expires in November 2009 — at which point subsection (d)(2) will require that DoD again follow

Chapter 71 (subject to certain targeted exceptions such as in subsection (k)(l)). The guarantee of collective bargaining in subsection (b)(4) also does not apply until November 2009. Recall that collective bargaining under subsection (b)(4) applies insofar as it is “provided for in this chapter.” Collective bargaining is in fact provided for in subsection (d)(2), which refers back to

Chapter 71 and thus requires collective bargaining. Collective bargaining is not, however, provided for in the text of subsection (m)(l). And because subsection (m)(

l) expressly permits DoD to disregard subsection (d)(2), subsection (m)(

l) also means that — until November 2009 — nothing in the statute “provide[s] for” collective bargaining for purposes of subsection (b)(4). As a result, like subsection (d)(2), subsection (b)(4) does not constrain DoD’s authority to establish a labor relations system until November 2009. After November 2009, collective bargaining is “provided for” in the statute — in subsection (d)(2) — ■ and again must be ensured by DoD. The dissenting opinion contends that the statutory phrase “as provided for in this chapter” means only “that other provisions of the bill modify Congress’s traditional understanding of the term ‘bargain collectively.’ ” Dissenting Op. at 1333. But that

interpretation distorts the plain meaning of the phrase “as provided for,” reading it to mean “unless otherwise provided for” — its polar opposite. That

interpretation also renders redundant the second, independent qualification in subsection (b)(4) — “subject to the provisions of this chapter” — -and would essentially read both qualifications in (b)(4) the same way, a highly disfavored interpretive result. See, e.g., Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643-44 (D.C.Cir. 2000).

By contrast, our reading gives each phrase independent meaning: The first qualification requires an affirmative grant of collective bargaining elsewhere in the statute (such as in (d)(2)), while the second qualification says that even where there is such an affirmative grant, it may be overridden by other provisions. The dissent’s strained reading appears to be sparked in part by its analysis of a hypothetical statute of the dissent’s own creation, which would use the phrase “bargain collectively as provided for in this chapter” without anywhere else actually providing for collective bargaining.

But the real statute in this case does provide for collective bargaining — in subsection (d)(2) — and we thus have no need to speculate about such hypothetical interpretive puzzles. Even if the dissent were correct that both provisions in subsection (b)(4) essentially mean that collective bargaining applies unless otherwise excepted, however, we would reach the same result.

The “subject to the provisions of this chapter” qualification (which the dissenting opinion glosses over) means that any right to collective bargaining that otherwise exists under subsection (b)(4) (whether as a result of the reference to collective bargaining in (b)(4) itself or because of (d)(2)’s reference to

Chapter 71) is subject to and may be overridden by other provisions of the statute. And subsections (m)(

l) and (m)(8) by their terms plainly qualify as such exceptions through November 2009. In sum, subsection (

m) of

Section 9902 grants DoD expansive authority to curtail collective bargaining through November 2009. Subsection (m)’s authority to curtail collective bargaining is entirely consistent with — not in conflict with — subsections (b)(3), (b)(4), and (d)(2) of

Section 9902, given the express qualifications in those subsections. After November 2009, however, the authority in subsection (

m) runs out, and collective bargaining under

Chapter 71 again will structure the Department’s labor relations (apart from targeted statutory exceptions, such as subsection (k)(l)). 2. In response to this straightforward reading of the plain language of the statute, the Unions have advanced three primary arguments. None is persuasive. First, the Unions argue that subsections (b)(3), (b)(4), and (d)(2) of

Section 9902 would have no purpose if subsections (m)(

l) and (m)(8) give DoD broad authority to curtail collective bargaining. We disagree with the Unions on this point. The labor relations system authorized under subsection (

m) expires in November 2009, at which point the important

Chapter 71 collective bargaining requirements of (b)(3), (b)(4), and (d)(2) will generally apply. In effect, therefore, the Act sets up a temporary, experimental period through November 2009 during which DoD has broad leeway to restructure its labor relations system. But after November 2009, assuming that Congress has not amended the statute in the meantime, the

Chapter 71 collective bargaining requirements referenced in subsections (b)(3), (b)(4), and (d)(2) again will apply and govern labor relations for DoD’s civilian workers (subject to targeted exceptions such as subsection (k)(l)). This kind of experimental program is common. To test new policies or try out novel approaches to difficult issues, Congress often enacts temporary legislation that sunsets at a certain point. See, e.g., USA PATRIOT Act, Pub.L. No. 107-56, § 224(a), 115 Stat. 272, 295 (2001); Ethics in Government Act of 1978, Pub.L.

No. 95-521, § 601(a), 92 Stat. 1824, 1873 (former independent counsel statute). As in other situations where Congress has acted to establish a temporary or experimental program, Congress no doubt will continue to carefully study the experience under this Act and use it to guide further legislation governing labor relations at DoD. In short, contrary to the Unions’ argument, subsections (b)(3), (b)(4), and (d)(2) play a critical role by generally providing collective bargaining for DoD’s civilian employees after November 2009.

Second, the Unions relatedly argue that subsection (m), when interpreted according to its plain terms, allows DoD to effectively negate collective bargaining through November 2009. The Unions strenuously contend that this cannot possibly be a correct

interpretation of the Act because Congress does not “hide elephants in mou-seholes.” Unions’ Br. at 18 (internal quotation omitted). We agree with the Unions that subsection (

m) is a statutory elephant (in the sense of having a huge impact), but the additional premise of the Unions’ contention is inaccurate: Subsection (

m) was not hidden. To be sure, subsection (

m) was ushered into the legislative arena at a late hour. Indeed, neither the initial House-passed nor Senate-passed bills (nor the separate bill on DoD labor relations approved by the Senate Committee on Governmental Affairs) included subsection (m); the bills preserved collective bargaining at DoD. See 149 Cong. Rec. H4460-61 (daily ed. May 21, 2003); 149 Cong. Rec. S14,490 (Nov. 12, 2003) (statement of Senator Lieberman); Am. Fed’n of Gov’t Employees v. Rumsfeld, 422 F.Supp.2d 16, 25 (D.D.C.2006). But the conference negotiations took a rather dramatic turn in a different direction. The conferees decided to add subsection (m), and subsection (

m) by its terms gives DoD expansive authority to curtail collective bargaining through November 2009. See Am. Fed’n of Gov’t Employees, 422 F.Supp.2d at 26. With subsection (

m) added, the conference agreement sparked pointed objections from several Members of Congress. Their reactions show (contrary to the Unions’ elephants-in-mouseholes suggestion) that Members of Congress clearly recognized subsection (

m) for what it is' — broad authority for DoD to curtail collective bargaining for six years from the date of enactment, that is, through November 2009. For example, Congressman Waxman stated: “At the same time that the bill claims to protect collective bargaining, it allows DoD to waive these requirements for the next 6 years.” 149 Cong. Rec. H10,988 (daily ed. Nov. 7, 2003). Congresswoman Jackson Lee added: “This bill claims to protect collective bargaining rights but removes all of the protections provided under the current law....

During the 6-year period, the Secretary of Defense will have the authority to decide what issues will be bargained ....” Id. at H10,998. Congressman McGovern stated: “This Conference Report removes all collective bargaining protections contained in current law _” Id. at Hll,006. Congressman Cardin explained his view that “more than 700,000 civilian workers in the Defense Department will lose fundamental protections.[T]his provision empowers ... Secretaries of Defense to create an entirely new personnel system for DoD civilians.” Id. at Hll,003.

Congressman Abercrombie said: “[S]ome 700,000 federal employees will be stripped of their rights and protections in the current civil service system and placed at the mercy of political appointees in DoD.” Id. at Hll,004. Congressman Hoyer, responding to another Representative’s hope that

Chapter 71 was non-waivable, explained: “That is technically true, but the bill allows [Chapter 71] to be suspended for the next [six years].” Id. at H10,997. And in opposing this provision of the statute, Senator Kennedy stated his understanding in frank terms: “Defense employees deserve civil service and collective bargaining rights” and this statute, Senator Kennedy stated, is a “vehicle to deny these workers their basic rights.” 149 Cong. Rec. S14,486 (daily ed. Nov. 12, 2003). Other Members of Congress likewise objected to subsection (

m) while attempting to construct an

interpretation that could require DoD to retain some core of collective bargaining even before November 2009. See, e.g., id. at S14,490 (statement of Senator Lieberman); id. at S14,428 (statement of Senator Collins). Although the snippets of legislative history are largely in accord with our reading of the statutory text, we do not rely on them to shape our

interpretation; the Supreme Court has cautioned against such use of this kind of legislative history. See Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S. 19, 29, 109 S.Ct. 278, 102 L.Ed.2d 186 (1988) (courts do “not usually accord much weight to the statements of a bill’s opponents”). We cite these various Member statements simply to show that the enormous significance of subsection (

m) was well understood by Members of Congress when the Act was passed in 2003, contrary to the premise of the “elephants-in-mouse-holes” interpretive objection put forth by the Unions. Third, the Unions have pointed to our recent decision in Chertojf. In that case, we held that the Department of Homeland Security’s regulations establishing a labor relations system were inconsistent with the DHS statute that Congress enacted in 2002.

The Unions here have candidly (and correctly) acknowledged that the statutory language governing DoD’s labor relations system is quite different from the statutory language governing DHS’s labor relations system. See Tr. of Oral Arg. 42-43 (“We acknowledge that the organic act that CheHojf is based upon is different than the organic act we’re arguing [about] here today.... We acknowledge that the language of the statute is different. We are not suggesting that Chertojf makes the question stare decisis.”).

The DHS statute provides, without any relevant qualification, that DHS must “ensure that employees may ... bargain collectively.” 5 U.S.C. § 9701(b)(4). By contrast, the DoD statute states that DoD must ensure that employees may “bargain collectively as provided for in this chapter” and makes clear that

Chapter 71 defines the scope of such collective bargaining. The statute then expressly qualifies the

Chapter 71 collective bargaining default by stating that it applies “subject to the provisions of this chapter” or except as “otherwise specified” in the statute. The DoD statute in turn includes subsections (m)(

l) and (m)(8), which give DoD broad authority to create a new labor relations system and to supersede collective bargaining through November 2009. By contrast, the DHS statute contains no provision remotely equivalent to subsection (

m) of the DoD statute. As we noted earlier, without subsection (m) (and without subsection (k)’s targeted limits on collective bargaining), this case would be decided the same way as Chertojf. But because of the multiple— and critical — differences in the DHS and DoD statutes, our decision in Chertojf does not provide any meaningful guidance for our

interpretation of the very different DoD statute. In other words, we do not believe, contrary to the Unions and the dissent, that Chertojfs

interpretation of the undefined phrase “bargain collectively” in the DHS statute can somehow alter the language of the DoD statute, which expressly indicates that collective bargaining means the collective bargaining provided for in subsection (d)(2). In sum, we hold that the plain language of the National Defense Authorization Act authorizes DoD to curtail collective bargaining for DoD’s civilian employees through November 2009. For purposes of our analysis, we find the relevant statutory terms plain. But even if we found ambiguity in the relationship of (b)(3), (b)(4), and (d)(2) on the one hand to (m)(

l) and (m)(8) on the other, we would defer to DoD’s reasonable

interpretation and application of the statute as articulated in the

preamble to the regulations. See 70 Fed.Reg. at 66,117-20, 66,128-30, 66,134, 66,176-85; Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). DoD reasonably concluded that “the law provides the Department and OPM — in collaboration with employee representatives — authority to establish a flexible and contemporary system of civilian human resources management for DoD civilians.” 70 Fed.Reg. at 66,118.

DoD explained that “Congress specifically authorized the Secretary, together with the Director, to establish and adjust this labor relations system in support of the overall HR management system notwithstanding the provisions of the current system as set forth in

chapter 71.” Id. at 66,128. DoD further stated that the statute did not require that actions to implement the labor relations system “be subject to collective bargaining or the meet-and-confer process.” Id. at 66,134. DoD reasonably concluded that its regulations “fulfill” the (m)(

l) statutory authorization — namely, that DoD’s labor relations system address the “unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission”— while also “providing employees with the rights envisioned by Congress.” Id. at 66,129. No doubt realizing that DoD’s

interpretation and approach is perfectly reasonable if the statute is considered ambiguous, the Unions do not even attempt to make such a “Chevron step 2” argument. Instead, the Unions try to demonstrate that DoD’s regulatory

interpretations are inconsistent with the clear meaning of the statute. For the reasons explained above, however, we see no conceivable way to conclude that DoD’s regulations violate the unambiguous terms of the statute. See Am. Fed’n of Gov’t Employees, Local 446 v. Nicholson, 475 F.3d 341, 354-55 (D.C.Cir.2007); Ass’n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1251 (D.C.Cir.1998). Because we conclude that the National Defense Authorization Act authorizes DoD to curtail collective bargaining, we reverse the contrary judgment of the District Court. 3.

One additional point warrants mention with respect to the so-called “implementing issuances” contemplated by the DoD regulations (those are the documents that enforce DoD labor relations policies and may curtail collective bargaining).

Section 9902 sets out two different sets of procedural requirements that DoD must follow when taking action under the statute: (

i) one set of procedural requirements for adopting or amending regulations issued under the statute, and (ii) another set of procedural requirements for taking certain action under those regulations. First, subsections (f)(l)(A)-(

C) and (m)(3) define stringent “meet and confer” requirements that DoD must follow when (

i) proposing a new system by adopting regulations or (ii) making an adjustment to the existing system by amending regulations. Those requirements include: a 30-day period for employee representatives to make recommendations regarding any DoD proposal (absent extraordinary circumstances), full and fair consideration of any such recommendations, a 30-day meet-and-confer period with employee representatives regarding any rejected recommendations, and notice to Congress when recommendations by the employee representatives are rejected. (In this court, it is not disputed that DoD complied with these requirements in promulgating the regulations at issue here.) Second, subsection (f)(1)(

D) sets out less rigorous “continuing collaboration” requirements that DoD must follow for taking certain actions under the regulations. In particular, subsection (f)(1)(

D) requires that DoD “develop a method for the employee representatives to participate” and “give the employee representatives adequate access to information to make that participation productive.” When the Secretary promulgates an implementing issuance under the regulations, however, the Unions suggest that DoD must follow the full meet-and-confer procedures of subsections (f)(1)(A)-(

C) and (m)(3). By contrast, DoD believes that only the “continuing collaboration” requirements of (f)(1)(

D) instead apply. As DoD explained in the

preamble to the final regulations, “we did not adopt the [Unions’] suggestion to require that implementing issuances be subject to collective bargaining or the meet-and-confer process. Collective bargaining is inappropriate for the development of HR system implementing issuances, since it is inconsistent with the requirements of

Section 9902(f)(4).... The continuing collaboration process [in the regulations] does meet the requirements of 5 U.S.C. 9902(f)(1)(D) ....” 70 Fed.Reg. at 66,134. We agree with DoD on this point. The most natural reading of the statute is that the more stringent meet-and-confer requirements apply only when DoD adopts regulations to establish the new system or amends those regulations to adjust the existing system. See 5 U.S.C. § 9902(a) (“[T]he Secretary may, in regulations ..., establish, and from time to time adjust, a human resources management system ....”) (emphases added).

Put another way, meet-and-confer requirements apply to promulgating regulations or to revising existing regulations. But the less stringent statutory requirement of “continuing collaboration” applies when DoD takes actions pursuant to regulations — such as implementing issuances. This reading of the statute is buttressed by the fact that requiring the full panoply of meet-and-confer obligations when the Department takes actions under the regulations would tie the system in knots and greatly hinder (if not prevent) the Department’s exercise of any discretionary authority set forth by the regulations. Cf.

Time Warner Cable v. Doyle, 66 F.3d 867, 877 (7th Cir.1995) (permitting agency to take into account how burdensome one

interpretation of a statute would be). Even if we assume that the statute is ambiguous as to which kind of procedural requirements apply to implementing issu-ances, however, we could not say that DoD’s

interpretation of these ambiguous provisions is an unreasonable way of harmonizing the two statutory provisions. Therefore, under the deferential Chevron framework for reviewing agency

interpretation of ambiguous statutes, we would uphold this particular regulation even if it were unclear which statutory collaboration requirement applied to implementing issu-ances. See Nicholson, 475 F.3d at 353-55; Ass’n of Bituminous Contractors, Inc., 156 F.3d at 1251. Ill Next, we address three miscellaneous challenges by the Unions relating to: the National Security Labor Relations Board, the standard of conduct for employee representatives, and the appeals process. 1.

Under § 9902(m)(6), the labor relations system established by the Secretary must “provide for independent third party review of [labor relations] decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review.” Under that subsection, DoD by regulation has created the National Security Labor Relations Board, which must decide issues related to unfair labor practices, the scope of bargaining, the duty to bargain in good faith, exceptions to arbitration awards, and negotiation impasses.

See 5 C.F.R. §§ 9901.907, 9901.908(b). The regulations authorize the Secretary to appoint the members of the Board who serve for three-year terms. Id. § 9901.907(b)(1). Under the regulations, the members must be “independent, distinguished citizens of the United States who are well known for their integrity, impartiality, and expertise in labor relations, and/or the DoD mission and/or other related national security matters.” Id. § 9901.907(b)(2). The Secretary will consider nominees submitted by labor organizations that represent Department employees. Id. § 9901.907(d)(1).

The Unions argue that the regulations do not ensure that the Board members are independent. We disagree. Under the regulations, members of the Board “may be removed by the Secretary only for inefficiency, neglect of duty, or malfeasance in office.” Id. § 9901.907(b)(2). This language mirrors the key feature of federal statutes that create what are commonly referred to as “independent” federal agencies.

See, e.g., 5 U.S.C. § 1202(d) (Merit Systems Protection Board); 15 U.S.C. § 41 (Federal Trade Commission); 42 U.S.C. § 5841(e) (Nuclear Regulatory Commission); 49 U.S.C. § 701(b)(3) (Surface Transportation Board); see also Humphrey’s Ex’r v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). So too, the Federal Labor Relations Authority, which handles labor disputes, is considered independent because of its similar good cause removal constraint. In light of the good cause removal provision in the regulations, DoD’s Board meets the statutory requirement of independent review.

The Unions offer two counter-arguments. First, they assert that the Board is not independent because the Board can “both investigate and adjudicate labor disputes.” Unions’ Br. at 33. Yet the Unions do not explain how the separation of these functions would make the Board more independent from DoD. Nothing in the statute or in logic requires a separation of functions within the “independent third party.” See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1215 n. 28 (D.C.Cir.1980).

What is more, many independent federal agencies combine these functions. See, e.g., 15 U.S.C. §§ 45(b), 46 (Federal Trade Commission); 47 U.S.C. §§ 204, 208 (Federal Communications Commission). Second, the Unions claim that the Board is not independent because it possesses unreviewable authority to decide negotiation impasses (in contrast to its other decisions, which are reviewed by the Federal Labor Relations Authority). See Unions’ Br. at 34. But insulating the Board from review by another government body does not render the Board itself any less independent.

In sum, the Unions have not shown that the Board lacks independence for purposes of the statute, and we therefore reject the Unions’ challenge to the regulation establishing the Board. 2. The Unions have challenged the DoD regulation providing that “[employee representatives employed by the Department are subject to the same expectations regarding conduct as any other employee, whether they are serving in their representative capacity or not.” 5 C.F.R. § 9901.914(a)(4).

The Unions believe that this regulation will prevent employee representatives from engaging in “vigorous advocacy” on behalf of DoD employees, as is required to ensure effective bargaining. Unions’ Br. at 28-29. In response, DoD explained that “[t]he only conduct the revised standard is intended to stop is the rare, but utterly unacceptable use of vulgar or sexually explicit language, as well as physical intimidation by union officials.” Department of Defense Human Resources Management and Labor Relations System, 70 Fed.Reg. 66,116, 66,182 (Nov. 1, 2005).

According to this explanation, the Department’s intent was “not to prevent honest and open discussion, but rather to ensure that such discussions are undertaken in a professional and courteous manner.” Id. We accept and defer to DoD’s reasonable

interpretation of its own regulation. As we have often stated, “an agency’s

interpretation of one of its own regulations commands substantial judicial deference.” Drake v. FAA, 291 F.3d 59, 68 (D.C.Cir.2002) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). The Department’s proffered

interpretation here is a reasonable construction of the regulation’s text and represents the Department’s “fair and considered” judgment, given that it was published in the Federal Register. Id. (internal quotation omitted); cf. Auer v. Robbins, 519 U.S. 452, 463, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). This regulation does not contravene any provision of the statute, and we uphold it. 3. Finally, we address the Unions’ contention that the labor relations system does not comply with the “fair treatment” requirement of subsection (h)(1)(

A) of

Section 9902. That subsection provides that “[t]he Secretary ... may establish an appeals process that provides employees of the Department of Defense organizational and functional units that are included in the National Security Personnel System fair treatment in any appeals that they bring in decisions relating to their employment.” Under the regulations, an employee first appeals an adverse employment decision to an administrative judge. After the administrative judge issues an initial decision, the losing party may appeal to designated DoD officials. See 5 C.F.R. § 9901.807(a), (g).

After this appeal to the Department, further appeal may be taken to the independent Merit Systems Protection Board. Id. § 9901.807(h). Finally, the decision of the Merit Systems Protection Board is subject to judicial review in the courts. Id. § 9901.807®. The appeals scheme is very similar to that used in many other agencies, with the exception that these regulations add a level of Merit Systems Protection Board review. The phrase “fair treatment” is not defined in the statute.

We believe “fair treatment” is a quintessential example of a vague statutory standard that requires significant judicial deference to the agency’s reasonable

interpretation. See Aurora Packing Co. v. NLRB, 904 F.2d 73, 76 n. 1 (D.C.Cir.1990) (“Chevron presumes that Congress delegated primarily to executive branch agencies the

interpretation of ambiguous terms .... ”). Given that deferential standard of review, we conclude that the extensive review process outlined above easily qualifies as “fair treatment.” We do not consider the Unions’ other “fair treatment” challenges because we agree with DoD that they are not yet ripe for judicial review under our decision in Chertoff. In Chertoff, a regulation prevented the Merit Systems Protection Board from mitigating a penalty that DHS imposed on an employee unless the penalty was “wholly without justification.” Nat’l Treasury Employees Union v.

Chertoff, 452 F.3d 839, 850 (D.C.Cir.2006) (quoting 5 C.F.R. § 9701.706(k)(6)). We held that the challenge to that mitigation provision was unripe for review. Id. at 855. We stated that judicial review would benefit from a specific application of the “wholly without justification” mitigation standard. We also found important that the Unions would suffer no harm from delaying review because the mitigation standard did not have a “direct and immediate” impact on their “primary conduct.” Id. (citing Toilet Goods Ass’n, Inc. v.

Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), and quoting Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C.Cir.1986)). Here, the Unions challenge a similar mitigation standard established in the regulations, which permits an administrative judge to mitigate a penalty only if it is “totally unwarranted in light of all pertinent circumstances.” 5 C.F.R. § 9901.807(f)(2)(ii). The Unions also object to the regulations that give the Secretary unreviewable discretion to define “[mjandatory removal offenses.” Id. §§ 9901.712(a), 9901.808(c).

And the Unions challenge the Secretary’s discretion to modify interim relief ordered by the Merit Systems Protection Board. Id. § 9901.807(f)(5)(i). As in Chertoff, we do not know how the Secretary may choose to apply these particular regulations in specific cases. As in Chertoff, we lack a concrete factual context to consider these challenges. And as in Chertoff, the Unions will not be harmed by delayed review because the “disputed procedures do not have any direct and immediate impact on the Unions’ primary conduct.” Chertoff, 452 F.3d at 855 (internal quotations omitted).

Therefore, in light of Chertoff, we find that these provisions of the regulations are not yet ripe for judicial review. We reverse the judgment of the District Court and uphold the DoD regulations at issue in this appeal. So ordered.