dissenting:

I respectfully dissent.

My disagreement with my colleagues is not about the interpretation of our jurisprudence regarding extraterritorial jurisdiction, or, even, about the extraterritorial scope of the RLA. Rather, it is about whether extraterritoriality has anything to do with this case in the first place.

Reduced to its core, the dispute can be summarized as follows:

(1) In April 1985 the IUFA, certified representative of Pan Am’s flight attendants, and Pan Am entered an agreement in the United States concerning Pan Am’s flights within German territory. The agreement provides protection for IUFA flight attendants serving such routes (for example, limiting the number of foreign national flight attendants or subjecting all disputes involving the interpretation of the agreement to binding arbitration);

(2) The IUFA alleges that Pan Am violated that agreement by refusing

(3) The Railway Labor Act, as amended to cover air carriers, imposes upon employers and employees “the duty ... to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions.” 45 U.S.C. § 152 . The Act further specifies the manner in which carriers shall “change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements.” Id.

(4) The IUFA contends that the aforementioned agreement was breached contrary to the provisions of the RLA, that it constituted a unilateral change of employment conditions, and that Pan Am refused to follow customary procedure for solving such disputes. As a result, it filed an action in federal district court seeking to compel arbitration.

*685 Given these facts, it appears to me that the district court had jurisdiction over this case, one that arose under a federal statute, the RLA. The “extraterritorial” character of the dispute is suggested only by the fact that the domestic agreement embraced employees of Pan Am’s foreign flights. Without more, this cannot suffice to push the controversy beyond our jurisdictional reach. 1

It is true that the few courts to have addressed the issue have concluded that the RLA does not apply outside our borders. In this, they have been guided by the well-established presumption against extraterritoriality to check the scope of our national laws. See supra at 680-82. But ruling that the district court had jurisdiction over this case would not conflict with such a conclusion. The critical difference is that here there is a pre-existing agreement between the parties. The RLA is not triggered directly by the employers’ alleged behavior in Germany but indirectly by their alleged breach of the agreement signed in the United States. 2 Because the hiring of foreign nationals might curtail jobs available for union members, because “the deprivation of a work opportunity involving the type of work traditionally performed by the Union is a change in work conditions,” Local 553, TWU v. Eastern Air Lines, 544 F.Supp. 1315 (E.D.N.Y.), aff'd and modified, 695 F.2d 668 (2d Cir.1982), and because the agreement explicitly embraced intra-German flights, appellants have stated a claim under the RLA.

We are not asked to apply the RLA to intra-German flights of its own force. Rather, we are asked to apply the RLA to a routine agreement between a union and a carrier. It is not the RLA that must be stretched beyond our boundaries; it is the agreement that brings us there. In sum, that the dispute revolved around foreign flights is jurisdictionally irrelevant. The RLA may have no operation in another country; that does not mean, however, that the agreements which the RLA purports to guarantee are limited in any way by territorial or national boundaries.

Nor are we being asked to hold that subject-matter jurisdiction was born of a contractual agreement. That, of course, would be impermissible. See Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir.1989) (holding that “a party cannot waive by consent or contract a court’s lack of subject matter jurisdiction”). Here, the contract’s alleged breach, not its explicit terms, forms the basis for the court’s subject-matter jurisdiction.

None of the cases cited by the majority addresses this issue. In Northwest Airlines, the Union argued that under the RLA it was required to represent all flight attendants, including those hired to perform on foreign flights. Because the foreign flight attendants were not covered by the Act, the court concluded that the Union was not their certified bargaining agent. 267 F.2d at 174. Similarly, in Trans World Airlines the Union sought an injunction against TWA under the RLA, requiring the company to bargain with it with respect to non-nationals. In both instances, the unions invoked the RLA of its own force to police conduct beyond our boundaries. Lacking from these cases was the independent, and wholly domestic “hook” on which to hang the controversy, namely the existence of an agreement between the two parties that neither party could unilaterally modify by virtue of the RLA.

I am also convinced that the factors generally cited to deny jurisdiction where for *686 eign interests are involved are absent from this case. First, the dispute clearly has a “substantial, direct, and foreseeable effect upon or in the territory” of the United States. Restatement (Third) of Foreign Relations Law, § 403(2)(a). Depriving U.S. citizens of employment opportunities, even abroad, will almost certainly have some effect within the United States.

Second, I disagree with the suggestion that an American exercise of jurisdiction would clash with another state’s jurisdictional assertion. Enumerating the policy reasons justifying the presumption against extraterritoriality, the majority evokes “the risk of ‘outright collisions between domestic and foreign law.’ ” Supra at 680 (quoting Pfeiffer, 755 F.2d at 557). But this belligerent scenario is far less likely to occur than the majority intimates. Courts of the United States have traditionally declined to apply our laws to foreign flag carriers, for “the law of the flag super-cedes the territorial principle.” Lauritzen, 345 U.S. at 585, 73 S.Ct. at 929; see also McCulloch, 372 U.S. at 21, 83 S.Ct. at 677 (U.S. labor laws do not apply to foreign seamen employed on vessels registered under a foreign flag). By the same token, regulation by Germany of the labor relations of a foreign carrier might well be unreasonable. Cf. Restatement (Third) of Foreign Relations Law § 403, Comment c; Reporter’s Note 4. 3

A third concern expressed by courts is whether a country’s decision to police a given conduct will interfere with justified expectations. See Restatement (Third) of Foreign Relations Law, § 403(2)(d). Here, both appellant and appellees undeniably anticipated that the collective bargaining agreement would apply to international flights. For decades, Pan Am had routinely honored such agreements. Its breach today cannot undo the justified expectations born of the past.

In my view, the most troubling aspect of this case remains the fate of the foreign flight attendants whose work appellants claim for their own members. However, the potential harm they might suffer would result not from our intervention, but from the agreement reached by Pan Am and the IUFA. Our task, accordingly, is limited to ensuring that the agreement not be violated in contravention of the RLA.

The court has a responsibility to act in the face of an alleged breach that might cause serious injury, for “collective bargaining agreements are central to American labor law and are the essential threads of its fabric.” Airline Pilots Ass’n., Etc. v. Taca Int’l Airlines, 748 F.2d 965, 968 (5th Cir.1984). Because I do not wish to approve of judicial passivity by way of extraterritorial escape, I must respectfully part company with my colleagues.

. Extraterritoriality is admittedly one of the looser concepts. As the jurisprudence in this field suggests, the decision whether to label a case ''extraterritorial" is far from clear-cut. Cf.Note — Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms, 103 Harv.L.Rev. 1273 (1990) [hereinafter Note]. In this case, in any event, I see no reason to cast the dispute in an extraterritorial light.

. In other words, while a union’s demands regarding pension plans for flight attendants on flights covered by the RLA would be subject to mandatory collective bargaining, see Elgin, J. & E. Ry. Co. v. Brotherhood of Rail-Road Trainmen, 302 F.2d 540, 544 (7th Cir.1962), the same request concerning intra-European flights would not. In this latter hypothesis, the RLA would not apply directly because the case involves an extraterritorial incident, and it would not apply indirectly because there is no domestic agreement to trigger it.

. My colleagues rely on Laker Airways, 731 F.2d 909 , to refute this argument. Supra at 681 n. 5. But the analogy is misplaced for it is well-established that the scope of acceptable jurisdiction varies with the underlying legal norm. Although I confess discomfort with such distinctions, what is true of antitrust regulation is not necessarily true of labor law; asserting jurisdiction to prescribe the conduct of a foreign air carrier might well be deemed reasonable where the former is at issue, and unreasonable where the latter is at stake. See Restatement (Third) of Foreign Relations Law § 403, Comment c; see also Note, supra, at 1293-94.