Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 37

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               Yet whether Congress has delegated to an agency the                    
               authority to interpret a statute does not depend on the                
               order in which the judicial and administrative                         
               constructions occur.  The Court of Appeals’ rule                       
               [holding that stare decisis required a court to apply a                
               judicial construction rather than a previously existing                
               agency construction], moreover, would “lead to the                     
               ossification of large portions of our statutory law,”                  
               by precluding agencies from revising unwise judicial                   
               constructions of ambiguous statutes.  Neither Chevron                  
               nor the doctrine of stare decisis requires these                       
               haphazard results.  [Id. at    , 125 S. Ct. at 2701-                   
               2702; citation omitted.]                                               

               For the reasons stated, I respectfully concur.                         
               WELLS and HOLMES, JJ., agree with this concurring opinion.             

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