Sorry Mark but that is the rule. You cannot wait until there is 3' of side-by-separaton separation and expect to do a hard luff that is impossible to respond to. ROW can still luff but in a manner that allows the other boat to respond to the luff.

So yes, if the ROW allows you to get within a few feet to weather then they have essentially given up their opportunity to do a "hard luff" at that moment and has allowed the other boat "to stick their nose there and try to roll someone a few feet to weather."