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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 93-1525
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MICHAEL A. LEBRON, PETITIONER v. NATIONAL
RAILROAD PASSENGER CORPORATION
on writ of certiorari to the united states court
of appeals for the second circuit
[February 21, 1995]

  Justice Scalia delivered the opinion of the Court.
  In this case we consider whether actions of the
National Railroad Passenger Corporation, commonly
known as Amtrak, are subject to the constraints of the
Constitution.

                            I
  Petitioner, Michael A. Lebron, creates billboard
displays that involve commentary on public issues, and
that seemingly propel him into litigation.  See, e.g.,
Lebron v. Washington Metropolitan Area Transit Author-
ity, 749 F. 2d 893 (CADC 1984).  In August 1991, he
contacted Transportation Displays, Incorporated (TDI),
which manages the leasing of the billboards in Amtrak's
Pennsylvania Station in New York City, seeking to
display an advertisement on a billboard of colossal
proportions, known to New Yorkers (or at least to the
more Damon Runyonesque among them) as -the Spectac-
ular.-  The Spectacular is a curved, illuminated bill-
board, approximately 103 feet long and 10 feet high,
which dominates the main entrance to Penn Station's
waiting room and ticket area.
  On November 30, 1992, Lebron signed a contract with
TDI to display an advertisement on the Spectacular for
two months beginning in January 1993.  The contract
provided that -[a]ll advertising copy is subject to
approval of TDI and [Amtrak] as to character, text,
illustration, design and operation.-  App. 671.  Lebron
declined to disclose the specific content of his advertise-
ment throughout his negotiations with TDI, although he
did explain to TDI that it was generally political.  On
December 2 he submitted to TDI (and TDI later for-
warded to Amtrak) an advertisement described by the
District Court as follows:
-The work is a photomontage, accompanied by
considerable text.  Taking off on a widely circulated
Coors beer advertisement which proclaims Coors to
be the `Right Beer,'  Lebron's piece is captioned `Is
it the Right's Beer Now?'  It includes photographic
images of convivial drinkers of Coors beer, juxta-
posed with a Nicaraguan village scene in which
peasants are menaced by a can of Coors that hurtles
towards them, leaving behind a trail of fire, as if it
were a missile.  The accompanying text, appearing
on either end of the montage, criticizes the Coors
family for its support of right-wing causes, particu-
larly the contras in Nicaragua.  Again taking off on
Coors' advertising which uses the slogan of `Silver
Bullet' for its beer cans, the text proclaims that
Coors is `The Silver Bullet that aims The Far
Right's political agenda at the heart of America.'-
811 F. Supp. 993, 995 (SDNY 1993).
Amtrak's vice president disapproved the advertisement,
invoking Amtrak's policy, inherited from its predecessor
as landlord of Penn Station, the Pennsylvania Railroad
Company, -that it will not allow political advertising on
the [S]pectacular advertising sign.-  App. 285.
  Lebron then filed suit against Amtrak and TDI, claim-
ing, inter alia, that the refusal to place his advertise-
ment on the Spectacular had violated his First and Fifth
Amendment rights.  After expedited discovery, the
District Court ruled that Amtrak, because of its close
ties to the Federal Government, was a Government
actor, at least for First Amendment purposes, and that
its rejection of Lebron's proposed advertisement as
unsuitable for display in Penn Station had violated the
First Amendment.  The court granted Lebron an injunc-
tion and ordered Amtrak and TDI to display Lebron's
advertisement on the Spectacular.
  The United States Court of Appeals for the Second
Circuit reversed.  12 F. 3d 388 (1993).  The panel's
opinion first noted that Amtrak was, by the terms of the
legislation that created it, not a Government entity, id.,
at 390; and then concluded that the Federal Government
was not so involved with Amtrak that the latter's
decisions could be considered federal action, id., at
391-392.  Chief Judge Newman dissented.  We granted
certiorari.  511 U. S. ___ (1994).

                           II
  We have held once, Burton v. Wilmington Parking
Authority, 365 U. S. 715 (1961), and said many times,
that actions of private entities can sometimes be
regarded as governmental action for constitutional
purposes.  See, e.g., San Francisco Arts & Athletics, Inc.
v. United States Olympic Committee, 483 U. S. 522, 546
(1987); Blum v. Yaretsky, 457 U. S. 991, 1004 (1982);
Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972).
It is fair to say that -our cases deciding when private
action might be deemed that of the state have not been
a model of consistency.-  Edmondson v. Leesville Con-
crete Co., 500 U. S. 614, 632 (1991) (O'Connor, J.,
dissenting).  It may be unnecessary to traverse that
difficult terrain in the present case, since Lebron's first
argument is that Amtrak is not a private entity but
Government itself.  Before turning to the merits of this
argument, however, it is necessary to discuss the propri-
ety of reaching it.  Lebron did not raise this
point below; indeed, he expressly disavowed it in both
the District Court and the Court of Appeals.  See
Plaintiff's Pre-Trial Proposed Conclusions of Law in No.
92-CIV-9411 (SDNY), p. 12, n. 1, reprinted in App. in
No. 93-7127 (CA2), p. 1297; Brief for Appellee in No.
93-7127 (CA2), p. 30, n. 39.  In those courts Lebron
argued that Amtrak's actions were subject to constitu-
tional requirements because Amtrak, although a private
entity, was closely connected with federal entities.  It
was not until after we granted certiorari that Lebron
first explicitly presented-in his brief on the merits-the
alternative argument that Amtrak was itself a federal
entity.
  Our traditional rule is that -[o]nce a federal claim is
properly presented, a party can make any argument in
support of that claim; parties are not limited to the
precise arguments they made below.-  Yee v. Escondido,
503 U. S. ___, ___ (1992) (slip op., at 13); see also Dewey
v. Des Moines, 173 U. S. 193, 198 (1899).  Lebron's
contention that Amtrak is part of the Government is in
our view not a new claim within the meaning of that
rule, but a new argument to support what has been his
consistent claim: that Amtrak did not accord him the
rights it was obliged to provide by the First Amendment.
Cf. Yee, supra, at ___ (slip op., at 13).  In fact, even if
this were a claim not raised by petitioner below, we
would ordinarily feel free to address it, since it was
addressed by the court below.  Our practice -permit[s]
review of an issue not pressed so long as it has been
passed upon . . . .-  United States v. Williams, 504 U. S.
___, ___ (1992) (slip op., at 4).  See Virginia Bankshares,
Inc. v. Sandberg, 501 U. S. 1083, 1099, n. 8 (1991);
Stevens v. Department of Treasury, 500 U. S. 1, 8 (1991).
  Respondent asserts that, in addition to not having
been raised below, the issue of whether Amtrak is a
Government entity was not presented in the petition for
certiorari.  As this Court's Rule 14.1(a) and simple
prudence dictate, we will not reach questions not fairly
included in the petition.  -The Court decides which
questions to consider through well-established proce-
dures; allowing the able counsel who argue before us to
alter these questions or to devise additional questions at
the last minute would thwart this system.-  Taylor v.
Freeland & Kronz, 503 U. S. ___, ___ (1992) (slip op., at
7).  Here, however, we are satisfied that the argument
that Amtrak is a Government entity is fairly embraced
within the question set forth in the petition for certio-
rari-which explicitly presents neither the -Government
entity- theory nor the -closely connected to Government-
theory of First Amendment application, but rather the
facts that would support both.  The argument in the
petition, moreover, though couched in terms of a differ-
ent but closely related theory, fairly embraced the
argument that Lebron now advances.  See Pet. for Cert.
16-18.
  The dissent contends that the -Government entity-
question in the present case occupies the same status,
insofar as Rule 14.1(a) is concerned, as the -physical
taking- question which we deemed excluded in Yee v.
Escondido, 503 U. S. ___ (1992).  It gives two reasons
for that equivalence: First, the fact that Lebron prefaced
his question presented by the phrase, -Whether the
court of appeals erred in holding.-  The dissent asserts
that this is similar to the preface in Yee, which had the
effect of limiting the question to the precise ground
relied upon by the Court of Appeal.  Post, at 3.  But the
preface in Yee was not at all similar.  What we said
caused the question presented to be limited to the
physical-taking issue was not the fact that that was the
only ground addressed by the lower-court-said-to-be-in-
error; but rather the fact that that was the only ground
of decision in two previous Court of Appeals cases,
departure from which was said by the question presented
to be the issue in the appeal.  503 U. S., at ___ (slip
op., at 15).
  The dissent's second reason for believing that Yee
governs the Rule 14.1(a) issue here is that the structural
relationship between the clearly presented question and
the assertedly included question in the two cases is the
same.  As the dissent correctly analyzes Yee, it involved
one -umbrella claim- (government taking of property
without just compensation) and -two distinct questions-
that were -[s]ubsidiary to that claim- (whether a
physical taking had occurred, and whether a regulatory
taking had occurred).  Post, at 2.  But the questions in
Yee were -distinct- in two important ways that the
claims here are not.  First of all, it was possible to
consider the existence of a physical taking without
assuming (as one of the premises of the inquiry) the
nonexistence of a regulatory taking; whereas here it is
quite impossible to consider whether the Government
connections are sufficient to convert private-entity Am-
trak into a Government actor without first assuming
that Amtrak is a private entity.  The opinion in Yee did
not have to begin: -Assuming that no regulatory taking
has occurred, . . . .-  But the portion of today's dissent
addressing the merits of this case must begin: -Accepting
Lebron's concession that Amtrak is a private
entity . . . .-  Post, at 9.  The question of private-entity
status is, in other words, a prior question.  The second
respect in which the issues here are less -distinct- than
in Yee is that the factors relevant to their resolution
overlap.  In Yee, what would go to show a regulatory
taking and what would go to show a physical taking
were quite different.  Here, however, those very ele-
ments that we would be considering in determining
whether Amtrak-the-private-entity is so closely connected
with the Government as to be a Government actor (for
example, the constitution of its Board) also bear upon
whether it is in fact a private entity at all.  When a
question is, like this one, both prior to the clearly
presented question and dependent upon many of the
same factual inquiries, refusing to regard it as embraced
within the petition may force us to assume what the
facts will show to be ridiculous, a risk which ought to be
avoided.
  The recent decision of ours that invites comparison
with the dissent's insistence that the -Government
entity- question is -precluded,- post, at 1, is not Yee, but
United States Nat. Bank of Ore. v. Independent Ins.
Agents of America, Inc., 508 U. S. ___ (1993).  There, in
a case raising the question of the proper interpretation
of 12 U. S. C. 92 (1926 ed.), we upheld the propriety of
the Court of Appeals' considering the prior question
whether 12 U. S. C. 92 had been inadvertently re-
pealed-even though the parties themselves had failed
to raise that question, not only (as here) in the court
below, but even in the initial briefs and oral arguments
before the Court of Appeals itself.  That is to say, the
situation there, at the court of appeals level, was what
the situation would be before us here, if (1) the dissent
were correct that Rule 14.1(a) was not complied with,
and (2) in addition, even the petitioner's principal brief
and oral argument had failed to raise the -Government
entity- issue.  Even so, we held in Independent Insur-
ance Agents that it was proper for the Court of Appeals
to request supplemental briefing upon, and to decide, the
statutory repeal question, and we then went on to in-
quire into that question ourselves.  Our opinion was
unanimous, not a single Justice protesting that the
judges of the Court of Appeals, or of this Court, had
constituted themselves -`as [a] self-directed boar[d] of
legal inquiry,'- or had -exhibit[ed] little patience,- post,
at 9.

                           III
  Before proceeding to consider Lebron's contention that
Amtrak, though nominally a private corporation, must be
regarded as a Government entity for First Amendment
purposes, we examine the nature and history of Amtrak
and of Government-created corporations in general.

                            A
  Congress established Amtrak in order to avert the
threatened extinction of passenger trains in the United
States.  The statute that created it begins with the
congressional finding, redolent of provisions of the
Interstate Commerce Act, see, e.g., 49 U. S. C. 10901,
10903, 10922 (1988 ed. and Supp. V), that -the public
convenience and necessity require the continuance and
improvement- of railroad passenger service.  Rail
Passenger Service Act of 1970 (RPSA), 101, 84 Stat.
1328 (emphasis added).  In the current version of the
RPSA, 45 U. S. C. 501 et seq. (1988 ed. and Supp. V),
the congressional findings are followed by a section
entitled -Goals,- which begins -The Congress hereby
establishes the following goals for Amtrak,- and includes
items of such detail as the following:
      -(3) Improvement of the number of passenger
miles generated systemwide per dollar of Federal
funding by at least 30 percent within the two-year
period beginning on October 1, 1981.
      -(4) Elimination of the deficit associated with food
and beverage services by September 30, 1982.
             .        .        .       .        .
      -(6) Operation of Amtrak trains, to the maximum
extent feasible, to all station stops within 15 min-
utes of the time established in public timetables for
such operation.
             .        .        .       .        .
      -(8) Implementation of schedules which provide a
systemwide average speed of at least 60 miles per
hour . . . .-  501a
Later sections of the statute authorize Amtrak's incorpo-
ration, 541-542, set forth its structure and powers,
543-545, and outline procedures under which Amtrak
will relieve private railroads of their passenger-service
obligations and provide intercity and commuter rail
passenger service itself, 561-566.  See generally
National Railroad Passenger Corporation v. Atchison T.
& S. F. R. Co., 470 U. S. 451, 453-456 (1985).  As
initially conceived, Amtrak was to be -a for profit
corporation,- 84 Stat., at 1330, but Congress later
modified this language to provide, less optimistically
perhaps, that Amtrak -shall be operated and managed
as a for profit corporation,- 541.
  Amtrak is incorporated under the District of Columbia
Business Corporation Act, D. C. Code 29-301 et seq.
(1981 and Supp. 1994), but is subject to the provisions
of that Act only insofar as the RPSA does not provide to
the contrary, see 541.  It does provide to the contrary
with respect to many matters of structure and power,
including the manner of selecting the company's board
of directors.  The RPSA provides for a board of nine
members, six of whom are appointed directly by the
President of the United States.  The Secretary of Trans-
portation, or his designee, sits ex officio.  543(a)(1)(A).
The President appoints three more directors with the
advice and consent of the Senate, 543(a)(1)(C), selecting
one from a list of individuals recommended by the
Railway Labor Executives Association, 543(a)(1)(C)(i),
one -from among the Governors of States with an
interest in rail transportation,- 543(a)(1)(C)(ii), and one
as a -representative of business with an interest in rail
transportation,- 543(a)(1)(C)(iii).  These directors serve
4-year terms.  543(a)(2)(A).  The President appoints two
additional directors without the involvement of the
Senate, choosing them from a list of names submitted by
various commuter rail authorities.  543(a)(1)(D).  These
directors serve 2-year terms.  543(a)(2)(B).  The holders
of Amtrak's preferred stock select two more directors,
who serve 1-year terms.  543(a)(1)(E).  Since the United
States presently holds all of Amtrak's preferred stock,
which it received (and still receives) in exchange for its
subsidization of Amtrak's perennial losses, see 544(c),
the Secretary of Transportation selects these two
directors.  The ninth member of the board is Amtrak's
president, 543(a)(1) (B), who serves as the chairman of
the board, 543(a)(4), is selected by the other eight
directors, and serves at their pleasure, 543(d).  Am-
trak's four private shareholders have not been entitled
to vote in selecting the board of directors since 1981.
  By 548 of the RPSA, Amtrak is required to submit
three different annual reports to the President and Con-
gress.  One of these, a -report on the effectiveness of
this chapter in meeting the requirements for a balanced
national transportation system, together with any legis-
lative recommendations,- is made part of the Depart-
ment of Transportation's annual report to Congress.
548(c).

                            B
  Amtrak is not a unique, or indeed even a particularly
unusual, phenomenon.  In considering the question
before us, it is useful to place Amtrak within its proper
context in the long history of corporations created and
participated in by the United States for the achievement
of governmental objectives.
  The first was the Bank of the United States, created
by the Act of Feb. 25, 1791, ch. 10, 1 Stat. 191, which
authorized the United States to subscribe 20 percent of
the corporation's stock, id., at 196.  That Bank expired
pursuant to the terms of its authorizing Act 20 years
later.  A second Bank of the United States, the bank of
McCulloch v. Maryland, 4 Wheat. 316 (1819), and Os-
born v. Bank of United States, 9 Wheat. 738 (1824), was
incorporated by the Act of April 10, 1816, 3 Stat. 266,
which provided that the United States would subscribe
20 percent of the Bank's capital stock, ibid., and in ad-
dition that the President would appoint, by and with the
advice and consent of the Senate, 5 of the Bank's 25 di-
rectors, the rest to be elected annually by shareholders
other than the United States, id., at 269.
  The second Bank's charter expired of its own force, de-
spite fierce efforts by the Bank's supporters to renew it,
in 1836.  See generally R. Remini, Andrew Jackson and
the Bank War 155-175 (1967).  During the remainder of
the 19th century, the Federal Government continued to
charter private corporations, see, e.g., Act of July 2,
1864, 13 Stat. 365 (Northern Pacific Railroad Company),
but only once participated in such a venture itself: the
Union Pacific Railroad, chartered in 1862 with the speci-
fication that two of its directors would be appointed by
the President of the United States.  Act of July 1, 1862,
1, 12 Stat. 491.  See F. Leazes, Jr., Accountability and
the Business State 117, n. 8 (1987) (hereinafter Leazes).
  The Federal Government's first participation in a cor-
porate enterprise in which (as with Amtrak) it appointed
a majority of the directors did not occur until the pres-
ent century.  In 1902, to facilitate construction of the
Panama Canal, Congress authorized the President to
purchase the assets of the New Panama Canal Company
of France, including that company's stock holdings in the
Panama Railroad Company, a private corporation char-
tered in 1849 by the State of New York.  See Act of
June 28, 1902, 32 Stat. 481; see also General Accounting
Office, Reference Manual of Government Corporations,
S. Doc. No. 86, 79th Cong., 1st Sess., 176 (1945) (herein-
after GAO Corporation Manual).  The United States be-
came the sole shareholder of the Panama Railroad, and
continued to operate it under its original charter, with
the Secretary of War, as the holder of the stock, electing
the Railroad's 13 directors.  Id., at 177; Joint Committee
on Reduction of Nonessential Federal Expenditures, Re-
duction of Nonessential Federal Expenditures, S. Doc.
No. 227, 78th Cong., 2d Sess., 20 (1944) (hereinafter
Reduction of Expenditures).
  The first large-scale use of Government-controlled
corporations came with the First World War.  In 1917
and 1918 Congress created, among others, the United
States Grain Corporation, the United States Emergency
Fleet Corporation, the United States Spruce Production
Corporation, and the War Finance Corporation.  See
Leazes 20.  These entities were dissolved after the war
ended.  See Reduction of Expenditures 1.
  The Great Depression brought the next major group of
Government corporations, which proved to be more
enduring.  These were primarily directed to stabilizing
the economy and to making distress loans to farms,
homeowners, banks, and other enterprises.  See R. Moe,
CRS Report for Congress, Administering Public Func-
tions at the Margins of Government: The Case of
Federal Corporations 6-7 (1983).  The Reconstruction
Finance Corporation (RFC), to take the premier example,
was initially authorized to make loans to banks, insur-
ance companies, railroads, land banks, and agricultural
credit organizations, including loans secured by the
assets of failed banks.  See Act of Jan. 22, 1932, 5, 47
Stat. 6-7.  The Federal Deposit Insurance Corporation
(FDIC), was established to hold and liquidate the assets
of failed banks, and to insure bank deposits.  See Act of
June 16, 1933, ch. 89, 8, 48 Stat. 168, as amended, 12
U. S. C. 1811 et seq. (1988 ed. and Supp. V).  And a
few corporations, such as the Tennessee Valley Authority
(TVA), brought the Government into the commercial sale
of goods and services.  See Act of May 18, 1933, ch. 32,
48 Stat. 58, as amended, 16 U. S. C. 831 et seq. (1988
ed. and Supp. V).
  The growth of federal corporations during the Depres-
sion and the World War II era was not limited to the
numerous entities specifically approved by Congress.  In
1940, Congress empowered the RFC to create corpora-
tions without specific congressional authorization.  See
Act of June 25, 1940, 5, 54 Stat. 573-574.  The RFC
proceeded to do so with gusto, incorporating on its own
the Defense Plant Corporation, the Defense Supplies
Corporation, the Metals Reserve Company (which itself
created several subsidiaries), the Petroleum Reserves
Corporation, the Rubber Development Corporation, and
the War Damage Corporation, among others.  See GAO
Corporation Manual 32, 38, 169, 182, 219, 279.  Other
corporations were formed, sometimes under state law,
without even the general congressional authorization
granted the RFC.  For example, the Defense Homes
Corporation was organized under Maryland law by the
Secretary of the Treasury, using emergency funds
allocated to the President, id., at 28 (-[i]t is not clear
what, if any, specific Federal statutory authority was
relied upon for the creation of the Defense Homes
Corporation-); and the Tennessee Valley Associated
Cooperatives, Inc., was chartered under Tennessee law
by the TVA, id., at 244 (-[t]here has been found no
Federal statute specifically authorizing the Board of
Directors of the Tennessee Valley Authority to organize
a corporation-).  By 1945, the General Accounting
Office's Reference Manual of Government Corporations
listed 58 government corporations, with total assets (in
1945 dollars) of 29.6 billion dollars.  See id., at iii, v-vi.
  By the end of World War II, Government-created and
-controlled corporations had gotten out of hand, in both
their number and their lack of accountability.  Congress
moved to reestablish order in the Government Corporation
Control Act (GCCA), 59 Stat. 597 (1945), as amended,
31 U. S. C. 9101 et seq. (1988 ed. and Supp. V).  See
Pritchett, The Government Corporation Control Act of
1945, 40 Am. Pol. Sci. Rev. 495 (1946).  The GCCA
required that specified corporations, both wholly owned
and partially owned by the Government, be audited by
the Comptroller General.  See 59 Stat., at 599, 600.
Additionally, the wholly owned corporations were
required, for the first time, to submit budgets which
would be included in the budget submitted annually to
Congress by the President.  Id., at 598; see also Leazes
22-23.  The Act also ordered the dissolution or liquida-
tion of all government corporations created under state
law, except for those that Congress should act to
reincorporate; and prohibited creation of new Govern-
ment corporations without specific congressional authori-
zation.  59 Stat., at 602; cf. 31 U. S. C. 9102.
  Thus, in the years immediately following World War
II, many Government corporations were dissolved, and
to our knowledge only one, the Saint Lawrence Seaway
Development Corporation, was created.  See Leazes 25,
27.  In the 1960's, however, the allure of the corporate
form was felt again, and new entities proliferated.
Many of them followed the traditional model, often
explicitly designated as Government agencies and located
within the existing Government structure.  See, e.g.,
Foreign Assistance Act of 1969, 105, 83 Stat. 809
(creating the Overseas Private Investment Corporation
as -an agency of the United States under the policy
guidance of the Secretary of State-), as amended, 22
U. S. C. 2191 et seq. (1988 ed. and Supp. V).  Begin-
ning in 1962, however, the Government turned to
sponsoring corporations which it specifically designated
not to be agencies or establishments of the United
States Government, and declined to subject to the
control mechanisms of the GCCA.  The first of these, the
Communications Satellite Corporation (Comsat), was
incorporated under the District of Columbia Business
Corporation Act, D.C. Code 29-301 et seq. (1981 and
Supp. 1994), see 47 U. S. C. 731 et seq., with the
purpose of entering the private sector, but doing so with
Government-conferred advantages, see Moe, supra, at 22.
Comsat was capitalized entirely with private funds.  See
Seidman, Government-sponsored Enterprise in the
United States, in The New Political Economy: The Public
Use of the Private Sector 92 (B. Smith ed. 1975).  In
contrast to the corporations that had in the past been
deemed part of the Government, Comsat's board was to
be controlled by its private shareholders; only 3 of its 15
directors were appointed by the President, 733(a).
  The Comsat model, which was seen as allowing the
Government to act unhindered by the restraints of
bureaucracy and politics, see Moe, supra, at 22, 24, was
soon followed in creating other corporations.  But some
of these new -private- corporations, though said by their
charters not to be agencies or instrumentalities of the
Government, see, e.g., 47 U. S. C. 396(b) (Corporation
for Public Broadcasting (CPB)); 42 U. S. C. 2996d(e)(1)
(Legal Services Corporation (LSC)), and though not
subjected to the restrictions of the GCCA, were (unlike
Comsat) managed by boards of directors on which
Government appointees had not just a few votes but
voting control.  See Public Broadcasting Act of 1967,
201, 81 Stat. 369 (CPB's entire board appointed by
President); Legal Services Corporation Act of 1974, 2,
88 Stat. 379 (same for LSC).
  Amtrak is yet another variation upon the Comsat
theme.  Like Comsat, CPB and LSC, its authorizing
statute declares that it -will not be an agency or
establishment of the United States Government.-  84
Stat., at 1330; see 45 U. S. C. 541.  Unlike Comsat,
but like CPB and LSC, its board of directors is con-
trolled by Government appointees.  And unlike all three
of those -private- corporations, it has been added to the
list of corporations covered by the GCCA, see 31
U. S. C. 9101 (1988 ed. and Supp. V).  As one percep-
tive observer has concluded with regard to the post-
Comsat Government-sponsored -private- enterprises:
-There is no valid basis for distinguishing between
many government-sponsored enterprises and other
types of government activities, except for the fact
that they are designed [designated?] by law as `not
an agency and instrumentality of the United States
Government.'  Comparable powers and immunities
could be granted to such agencies without charac-
terizing them as non-government.-  Seidman, supra,
at 93.

                           IV
  Amtrak claims that, whatever its relationship with the
Federal Government, its charter's disclaimer of agency
status prevents it from being considered a Government
entity in the present case.  This reliance on the statute
is misplaced.  Section 541 is assuredly dispositive of
Amtrak's status as a Government entity for purposes of
matters that are within Congress' control-for example,
whether it is subject to statutes that impose obligations
or confer powers upon Government entities, such as the
Administrative Procedure Act, 5 U. S. C. 551 et seq.
(1988 ed. and Supp. V), the Federal Advisory Committee
Act, 5 U. S. C. App. 1 et seq., and the laws governing
Government procurement, see 41 U. S. C. 5 et seq.
(1988 ed. and Supp. V).  And even beyond that, we
think 541 can suffice to deprive Amtrak of all those
inherent powers and immunities of Government agencies
that it is within the power of Congress to eliminate.  We
have no doubt, for example, that the statutory disavowal
of Amtrak's agency status deprives Amtrak of sovereign
immunity from suit, see Sentner v. Amtrak, 540 F. Supp.
557, 560 (NJ 1982), and of the ordinarily presumed
power of Government agencies authorized to incur
obligations to pledge the credit of the United States, see,
e.g., Debt Obligations of Nat. Credit Union Admin., 6
Op. Off. Legal Counsel 262, 264 (1982).  But it is not for
Congress to make the final determination of Amtrak's
status as a government entity for purposes of determin-
ing the constitutional rights of citizens affected by its
actions.  If Amtrak is, by its very nature, what the
Constitution regards as the Government, congressional
pronouncement that it is not such can no more relieve
it of its First Amendment restrictions than a similar
pronouncement could exempt the Federal Bureau of
Investigation from the Fourth Amendment.  The Consti-
tution constrains governmental action -by whatever
instruments or in whatever modes that action may be
taken.-  Ex parte Virginia, 100 U. S. 339, 346-347
(1880).  And under whatever congressional label.  As we
said of the Reconstruction Finance Corporation in
deciding whether debts owed it were owed the United
States Government: -That the Congress chose to call it
a corporation does not alter its characteristics so as to
make it something other than what it actually is . . . .-
Cherry Cotton Mills, Inc. v. United States, 327 U. S.
536, 539 (1946).
  Amtrak points to two of our opinions that characterize
Amtrak as a nongovernmental entity.  The first is
National Railroad Passenger Corporation v. Boston &
Maine Corp., 503 U. S. ___, ___ (1992) (slip op., at 2),
which describes the corporation as -not an agency or
instrumentality of the United States Government.-  But
the governmental or nongovernmental nature of Amtrak
had no conceivable relevance to the issues before the
Court in Boston & Maine.  The quoted characterization,
similar to that contained in the statute, was merely set
forth at the beginning of the opinion, in describing the
factual background of the case.  It is hard to imagine
weaker dictum.
  The second case is National Railroad Passenger
Corporation v. Atchison, T. & S. F. R. Co., 470 U. S.
451 (1985).  There the governmental character of
Amtrak was marginally relevant.  The railroads opposing
Amtrak in the case argued that a subsequent statute
reneging on the Government's own obligations was
subject to a -more rigorous standard of review- under
the Due Process Clause than a statute impairing private
contractual obligations.  Id., at 471.  The Court said it
did not have to consider that question because the
contracts in question were -not between the railroads
and the United States but simply between the railroads
and the nongovernmental corporation, Amtrak.-  Id., at
470.  But it develops, later in the opinion, that the
Court would not have had to consider that question
anyway, since it concluded that the contracts (whether
those of the United States or not) did not incur the
obligation alleged.  The effect of the apparent reliance
upon Amtrak's nongovernmental character was at most
to enable the Court to make, later in the opinion,
without applying the -more rigorous standard- urged by
the railroads, the superfluous argument that -[e]ven
were the Court of Appeals correct that the railroads
have a private contractual right . . . we disagree with
the Court of Appeals' conclusion that the Due Process
Clause limited Congress' power to [affect that right as
it did].-  Id., at 476.  Moreover, for the purpose at hand
in Atchison it was quite proper for the Court to treat
Congress' assertion of Amtrak's nongovernmental status
in 541 as conclusive.  As we have suggested above,
even if Amtrak is a Government entity, 541's disavowal
of that status certainly suffices to disable that agency
from incurring contractual obligations on behalf of the
United States.  For these reasons, we think that
Atchison's assumption of Amtrak's nongovernmental
status (a point uncontested by the parties in the case,
since it was not Amtrak's governmental character which
the railroads relied upon to establish an obligation of
the United States) does not bind us here.

                            V
  The question before us today is unanswered, therefore,
by governing statutory text or by binding precedent of
this Court.  Facing the question of Amtrak's status for
the first time, we conclude that it is an agency or
instrumentality of the United States for the purpose of
individual rights guaranteed against the Government by
the Constitution.
  This conclusion seems to us in accord with public and
judicial understanding of the nature of Government-
created and -controlled corporations over the years.  A
remarkable feature of the heyday of those corporations,
in the 1930's and 1940's, was that, even while they were
praised for their status -as agencies separate and
distinct, administratively and financially and legally,
from the government itself, [which] has facilitated their
adoption of commercial methods of accounting and
financing, avoidance of political controls, and utilization
of regular procedures of business management,- it was
fully acknowledged that they were a -device- of -govern-
ment,- and constituted -federal corporate agencies- apart
from -regular government departments.-  Pritchett, 40
Am. Pol. Sci. Rev., at 495.  The Reference Manual of
Government Corporations, prepared in 1945 by the
Comptroller General, contains as one of its Tables
-Corporations arranged according to supervising or
interested Government department or agency,- see GAO
Corporation Manual x-xi.  This lists the 58 then-extant
Government corporations under the various departments
and agencies, from the Agriculture Department to the
War Department, and then concludes the list with five
-Independent corporations--analogous, one supposes, to
the -independent agencies- of the Executive Branch
proper.  The whole tenor of the Manual is that these
corporations are part of the Government.
  This Court has shared that view.  For example, in
Reconstruction Finance Corp. v. J. G. Menihan Corp.,
312 U. S. 81 (1941), Chief Justice Hughes, writing for
the Court, described the RFC, whose organic statute did
not state it to be a Government instrumentality, as,
nonetheless, -a corporate agency of the government,- and
said that -it acts as a governmental agency in perform-
ing its functions.-  Id., at 83.  In Cherry Cotton Mills,
Inc. v. United States, 327 U. S. 536 (1946), we had little
difficulty finding that the RFC was -an agency selected
by Government to accomplish purely governmental
purposes,- id., at 539, and was thus entitled to the
benefit of a statute giving the Court of Claims jurisdic-
tion over -counterclaims . . . on the part of the Govern-
ment of the United States,- 28 U. S. C. 250(2) (1940
ed.).  Likewise in Inland Waterways Corp. v. Young, 309
U. S. 517 (1940), we found that the Inland Waterways
Corporation, which similarly was not specifically desig-
nated in its charter as an instrumentality of the United
States, see Act of June 3, 1924, 43 Stat. 360, was an
agency of the United States, so that its funds were
-public moneys- for which national banks could give
security under 45 of the National Banking Act of 1864,
13 Stat. 113, 309 U. S., at 523-524.  Justice Frankfurter
wrote for the Court:
      -So far as the powers of a national bank to pledge
its assets are concerned, the form which Government
takes-whether it appears as the Secretary of the
Treasury, the Secretary of War, or the Inland
Waterways Corporation-is wholly immaterial.  The
motives which lead Government to clothe its activi-
ties in corporate form are entirely unrelated to the
problem of safeguarding governmental deposits
. . . .-  Id., at 523.
  Even Congress itself appeared to acknowledge, at least
until recent years, that Government-created and -con-
trolled corporations were part of the Government.  The
Government Corporation Control Act of 1945, discussed
above, which brought to an end the era of uncontrolled
growth of Government corporations, provided that,
without explicit congressional authorization, no corpora-
tion should be acquired or created by -any officer or
agency of the Federal Government or by any Govern-
ment corporation for the purpose of acting as an agency
or instrumentality of the United States . . . .-  304(a),
59 Stat., at 602 (emphasis added).  That was evidently
intended to restrict the creation of all Government-
controlled policy-implementing corporations, and not just
some of them.  And the companion provision that swept
away many of the extant corporations said that no
wholly owned government corporation created under
state law could continue -as an agency or instrumental-
ity of the United States,- 304(b), 59 Stat., at 602.
Once again, that was evidently meant to eliminate
policy-implementing government ownership of all state
corporations, and not just some of them.  From the 1930's
onward, many of the statutes creating Government-
controlled corporations said explicitly that they were
agencies or instrumentalities of the United States, see,
e.g., Act of June 9, 1947, 1, 61 Stat. 130, as amended,
12 U. S. C. 635 (creating the Export-Import Bank of
Washington as -an agency of the United States of
America-); Federal Crop Insurance Act, 503, 52 Stat. 72
(1938), 7 U. S. C. 1503 (creating Federal Crop Insur-
ance Corporation as -an agency of and within the
Department of Agriculture-), and until 1962 none said
otherwise.  As we have described above, moreover, those
later statutes, relatively few in number, took that
statement, perhaps too uncritically, from an earlier
statute pertaining to a corporation (Comsat) that was
genuinely private and not Government controlled.
  That Government-created and -controlled corporations
are (for many purposes at least) part of the Government
itself has a strong basis, not merely in past practice and
understanding, but in reason itself.  It surely cannot be
that government, state or federal, is able to evade the
most solemn obligations imposed in the Constitution by
simply resorting to the corporate form.  On that thesis,
Plessy v. Ferguson, 163 U. S. 537 (1896), can be resur-
rected by the simple device of having the State of
Louisiana operate segregated trains through a state-
owned Amtrak.  In Pennsylvania v. Board of Directors
of City Trusts of Philadelphia, 353 U. S. 230 (1957) (per
curiam), we held that Girard College, which had been
built and maintained pursuant to a privately erected
trust, was nevertheless a governmental actor for consti-
tutional purposes because it was operated and controlled
by a board of state appointees, which was itself a state
agency.  Id., at 231.  Amtrak seems to us an a fortiori
case.
  Amtrak was created by a special statute, explicitly for
the furtherance of federal governmental goals.  As we
have described, six of the corporation's eight externally
named directors (the ninth is named by a majority of
the board itself) are appointed directly by the President
of the United States-four of them (including the
Secretary of Transportation) with the advice and consent
of the Senate.  See 543(a)(1)(A), (C)-(D).  Although the
statute restricts most of the President's choices to
persons suggested by certain organizations or persons
having certain qualifications, those restrictions have
been tailor-made by Congress for this entity alone.  They
do not in our view establish an absence of control by the
Government as a whole, but rather constitute a restric-
tion imposed by one of the political branches upon the
other.  Moreover, Amtrak is not merely in the temporary
control of the Government (as a private corporation
whose stock comes into federal ownership might be); it
is established and organized under federal law for the
very purpose of pursuing federal governmental objec-
tives, under the direction and control of federal govern-
mental appointees.  It is in that respect no different
from the so-called independent regulatory agencies such
as the Federal Communications Commission or the
Securities Exchange Commission, which are run by
Presidential appointees with fixed terms.  It is true that
the directors of Amtrak, unlike commissioners of inde-
pendent regulatory agencies, are not, by the explicit
terms of the statute, removable by the President for
cause, and are not impeachable by Congress.  But any
reduction in the immediacy of accountability for Amtrak
directors vis-a-vis regulatory commissioners seems to us
of minor consequence for present purposes-especially
since, by the very terms of the chartering Act, Con-
gress's -right to repeal, alter, or amend this chapter at
any time is expressly reserved.-  45 U. S. C. 541.
  Respondent appeals to statements this Court made in
a case involving the second Bank of the United States,
Bank of United States v. Planters' Bank of Georgia, 9
Wheat. 904 (1824).  There we allowed the Planters' Bank,
in which the State of Georgia held a noncontrolling
interest, see Act of Dec. 19, 1810, 1, reprinted in Digest
of Laws of State of Georgia 34-35 (O. Prince ed. 1822);
Act of Dec. 3, 1811, 1, id., at 35, to be sued in federal
court despite the Eleventh Amendment, reasoning that
-[t]he State does not, by becoming a corporator, identify
itself with the corporation,- id., at 907.  -The govern-
ment of the Union,- we said, -held shares in the old
Bank of the United States; but the privileges of the
government were not imparted by that circumstance to
the Bank.  The United States was not a party to suits
brought by or against the Bank in the sense of the
constitution.-  Id., at 908.  But it does not contradict
those statements to hold that a corporation is an agency
of the Government, for purposes of the constitutional
obligations of Government rather than the -privileges of
the government,- when the state has specifically created
that corporation for the furtherance of governmental
objectives, and not merely holds some shares but
controls the operation of the corporation through its
appointees.
  Respondent also invokes our decision in the Regional
Rail Reorganization Act Cases, 419 U. S. 102 (1974),
which found the Consolidated Rail Corporation, or
Conrail, not to be a federal instrumentality, despite the
President's power to appoint, directly or indirectly, 8 of
its 15 directors.  See id., at 152, n. 40; Regional Rail
Reorganization Act of 1973 301, 87 Stat. 1004.  But we
specifically observed in that case that the directors were
placed on the board to protect the United States'
interest -in assuring payment of the obligations guaran-
teed by the United States,- and that -[f]ull voting
control . . . will shift to the shareholders if federal
obligations fall below 50% of Conrail's indebtedness.-
419 U. S., at 152.  Moreover, we noted, -[t]he responsi-
bilities of the federal directors are not different from
those of the other directors-to operate Conrail at a
profit for the benefit of its shareholders,- ibid.-which
contrasts with the public-interest -goals- set forth in
Amtrak's charter, see 45 U. S. C. 501a.  Amtrak is
worlds apart from Conrail: the Government exerts its
control not as a creditor but as a policymaker, and no
provision exists that will automatically terminate control
upon termination of a temporary financial interest.

                       *    *    *
  We hold that where, as here, the Government creates
a corporation by special law, for the furtherance of
governmental objectives, and retains for itself permanent
authority to appoint a majority of the directors of that
corporation, the corporation is part of the Government
for purposes of the First Amendment.  We express no
opinion as to whether Amtrak's refusal to display
Lebron's advertisement violated that Amendment, but
leave it to the Court of Appeals to decide that.  The
judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
                                      It is so ordered.