we are not presented with such a legislative choice. Rather, we are presented with an agency’s refusal to exercise its discretion, based on its belief that it has no power to do otherwise. In this situation, while the agency has the first word on its regulatory jurisdiction, it does not have the last. Cf. Exxon Corp. v. FTC, 665 F.2d 1274 (D.C.Cir.1981) (scope of power delegated to FTC is jurisdictional issue into which court can make independent inquiry under 5 U.S.C. § 706(2)(C)). It is well within the tradition of our review of agency action on petitions for rulemaking to make an independent inquiry into an agency’s allegation that it lacks the statutory authority to act. See NAACP v. FPC, 520 F.2d 432 (D.C.Cir. 1975), aff’d, 425 U.S. 662, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976) (<HOLDING>); National Organization for Reform of Marijuana
recognizing the inherent common law authority of courts to promulgate rules of practice and procedure holding that voidness of summary judgment in defamation case could be asserted for first time on appeal only if trial court lacked subjectmatter jurisdiction to render judgment and concluding court had jurisdiction recognizing the considerable deference afforded to regulations concerning medicare holding that agency is bound by its regulations holding fpc to be mistaken in concluding that it lacked jurisdiction to promulgate regulations concerning employment discrimination by its regulatees