Cite as: 535 U. S. 1 (2002)
Opinion of Thomas, J.
U. S. C. § 824 et seq., FERC has jurisdiction over all interstate transmission, regardless of the type of transaction with which it is associated, and I concur in the Court's holding with respect to transmission used for unbundled retail sales and join Parts II and III of its opinion. I dissent, however, from the Court's resolution of the question concerning transmission used for bundled retail sales because I believe that the Court fails to properly assess both the Commission's jurisdictional analysis and its justification for excluding bundled retail transmission from the Open Access Transmission Tariff (OATT). FERC's explanations are inadequate and do not warrant our deference.
I
While the Court does not foreclose the possibility that FERC's jurisdiction extends to transmission associated with bundled retail sales, the Court defers to FERC's decision not to apply the OATT to such transmission on the ground that the Commission made a permissible policy choice, ante, at 28 (quoting Transmission Access Policy Study Group v. FERC, 225 F. 3d 667, 694-695 (CADC 2000)), and by reference to FERC's assertions that: (1) such relief was not "necessary," ante, at 26 (citing Order No. 888, FERC Stats. & Regs., Regs. Preambles, Jan. 1991-June 1996, ¶ 31,036, p. 31,699; Order No. 888-A, FERC Stats. & Regs., Regs. Preambles, July 1996-Dec. 2001, ¶ 31,048, p. 30,225); and (2) "the regulation of bundled retail transmissions 'raises numerous difficult jurisdictional issues' that did not need to be resolved in the present context." Ante, at 26 (citing Order No. 888, at 31,699; Order No. 888-A, at 30,225-30,226). The Court concludes that both reasons "provide valid support for FERC's decision not to regulate bundled retail transmissions." Ante, at 26.1
1 I note that the "reasons" upon which the Court relies were made only in the specific context of FERC's explanation of its decision not to unbundle retail transmission and distribution. Order No. 888, at 31,698-31,699. The comments were not given as a general explanation for FERC's
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