Natl Assoc. of Manufacturers v. SEC ( 2014 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued January 7, 2014                 Decided April 14, 2014
    No. 13-5252
    NATIONAL ASSOCIATION OF MANUFACTURERS, ET AL.,
    APPELLANTS
    v.
    SECURITIES AND EXCHANGE COMMISSION, ET AL.,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:13-cv-00635)
    Peter D. Keisler argued the cause for appellants. With him
    on the briefs were Jonathan F. Cohn, Erika L. Myers, Quentin
    Riegel, Rachel L. Brand, and Steven P. Lehotsky.
    Eric P. Gotting and Eric G. Lasker were on the brief for
    amici curiae American Chemistry Council, et al. in support of
    appellants.
    Eugene Scalia, Thomas M. Johnson Jr., Harry M. Ng, and
    Peter C. Tolsdorf were on the brief for amicus curiae American
    Petroleum Institute in support of appellants.
    2
    John B. Bellinger III and Sarah M. Harris were on the brief
    for amicus curiae Experts on the Democratic Republic of the
    Congo in support of petitioners.
    Mark T. Stancil was on the brief for amici curiae Retail
    Litigation Center, Inc., et al. in support in appellants.
    Tracey A. Hardin, Assistant General Counsel, Securities
    and Exchange Commission, argued the cause for appellee. With
    her on the brief were Michael A. Conley, Deputy General
    Counsel, Benjamin L. Schiffrin, Senior Litigation Counsel, and
    Daniel Staroselsky, Senior Counsel.
    Julie A. Murray, Adina H. Rosenbaum, and Scott L. Nelson
    were on the brief for intervenors-appellees Amnesty
    International USA, Inc., et al.
    Dennis M. Kelleher and Stephen W. Hall were on the brief
    for amicus curiae Better Markets, Inc. in support of appellee.
    Agnieszka Fryszman and Thomas J. Saunders were on the
    brief for amici curiae Senator Durbin, Congressman
    McDermott, et al. in support of appellee.
    Jodi Westbrook Flowers was on the brief for amici curiae
    Global Witness, et al. in support of appellee.
    Before: SRINIVASAN, Circuit Judge, and SENTELLE and
    RANDOLPH, Senior Circuit Judges.
    Opinion for the court filed by Senior Circuit Judge
    RANDOLPH.
    Opinion concurring in part filed by Circuit Judge
    SRINIVASAN
    3
    RANDOLPH, Senior Circuit Judge:
    I.
    For the last fifteen years, the Democratic Republic of the
    Congo has endured war and humanitarian catastrophe. Millions
    have perished, mostly civilians who died of starvation and
    disease. Communities have been displaced, rape is a weapon,
    and human rights violations are widespread.
    Armed groups fighting the war finance their operations by
    exploiting the regional trade in several kinds of minerals. Those
    minerals—gold, tantalum, tin, and tungsten1—are extracted from
    technologically primitive mining sites in the remote eastern
    Congo. They are sold at regional trading houses, smelted nearby
    or abroad, and ultimately used to manufacture many different
    products.2 Armed groups profit by extorting, and in some cases
    directly managing, the minimally regulated mining operations.
    In 2010, Congress devised a response to the Congo war.
    Section 1502 of the Dodd-Frank Wall Street Reform and
    Consumer Protection Act, Pub. L. No. 111-203, 
    124 Stat. 1376
    (relevant parts codified at 15 U.S.C. §§ 78m(p), 78m note
    (‘Conflict Minerals’)), requires the Securities and Exchange
    Commission—the agency normally charged with policing
    America’s financial markets—to issue regulations requiring
    1
    See Conflict Minerals, 
    77 Fed. Reg. 56,274
    , 56,284-85 (Sept.
    12, 2012).
    2
    For example, tantalum is used in turbines, camera lenses,
    medical devices, cell phones, and computers. Tin is used in plastics,
    phones, and automobile parts. Tungsten is used in lighting, power
    tools, and golf clubs.
    4
    firms using “conflict minerals” to investigate and disclose the
    origin of those minerals. See 15 U.S.C. § 78m(p)(1)(A).
    The disclosure regime applies only to “person[s] described”
    in the Act. See id. A “person is described . . . [if] conflict
    minerals are necessary to the functionality or production of a
    product manufactured by such person.” Id. § 78m(p)(2). A
    described person must “disclose annually, whether [its
    necessary] conflict minerals . . . did originate in the [Congo] or
    an adjoining country.” Id. § 78m(p)(1)(A). If those minerals “did
    originate” in the Congo or an adjoining country (collectively,
    “covered countries”) then the person must “submit [a report] to
    the Commission.” Id. The report must describe the “due
    diligence” measures taken to establish “the source and chain of
    custody” of the minerals, including a “private sector audit” of
    the report. Id. The report must also list “the products
    manufactured or contracted to be manufactured that are not
    DRC conflict free.” Id. A product is “DRC conflict free” if its
    necessary conflict minerals did not “directly or indirectly
    finance or benefit armed groups” in the covered countries. Id.
    In late 2010, the Commission proposed rules for
    implementing the Act. Conflict Minerals, 
    75 Fed. Reg. 80,948
    (Dec. 23, 2010). Along with the proposed rules, the Commission
    solicited comments on a range of issues. In response, it received
    hundreds of individual comments and thousands of form letters.
    Conflict Minerals, 
    77 Fed. Reg. 56,274
    , 56,277-78 (Sept. 12,
    2012) (“final rule”) (codified at 
    17 C.F.R. §§ 240
    .13p-1,
    249b.400). The Commission twice extended the comment period
    and held a roundtable for interested stakeholders. 
    Id.
     By a 3-2
    vote, it promulgated the final rule, which became effective
    November 13, 2012. Id. at 56,274. The first reports are due by
    May 31, 2014. Id.
    The final rule adopts a three-step process, which we outline
    below, omitting some details not pertinent to this appeal. At step
    5
    one, a firm must determine if the rule covers it. Id. at 56,279,
    56,285. The final rule applies only to securities issuers who file
    reports with the Commission under sections 13(a) or 15(d) of the
    Exchange Act. Id. at 56,287. The rule excludes issuers if conflict
    minerals are not necessary to the production or functionality of
    their products. Id. at 56,297-98. The final rule does not,
    however, include a de minimis exception, and thus applies to
    issuers who use very small amounts of conflict minerals. Id. at
    56,298. The rule also extends to issuers who only contract for
    the manufacture of products with conflict minerals, as well as
    issuers who directly manufacture those products. Id. at 56,290-
    92.
    Step two requires an issuer subject to the rule to conduct a
    “reasonable country of origin inquiry.” Id. at 56,311. The
    inquiry is a preliminary investigation reasonably designed to
    determine whether an issuer’s necessary conflict minerals
    originated in covered countries. Id. at 56,312. If, as a result of
    the inquiry, an issuer either knows that its necessary conflict
    minerals originated in covered countries or “has reason to
    believe” that those minerals “may have originated” in covered
    countries, then it must proceed to step three and exercise due
    diligence. Id. at 56,313.3
    An issuer who proceeds to step three must “exercise due
    diligence on the source and chain of custody of its conflict
    minerals.” Id. at 56,320. If, after performing due diligence an
    3
    If the inquiry discloses that there is no reason to believe the
    issuer’s conflict minerals came from covered countries or that there is
    a reasonable basis for believing that the issuer’s conflict minerals
    came from scrap or recycled sources, then the issuer need only file a
    specialized disclosure report on the newly-created Form SD, briefly
    describing its inquiry, 77 Fed. Reg. at 56,313, and provide a link to the
    report on its website. Id. at 56,315. No due diligence is required.
    6
    issuer still has reason to believe its conflict minerals may have
    originated in covered countries, it must file a conflict minerals
    report. The report must describe both its due diligence efforts,
    including a private sector audit,4 id., and those products that
    have “not been found to be ‘DRC conflict free,’” id. at 56,322
    (quoting 15 U.S.C. § 78m(p)(1)(A)(ii)). The report must also
    provide detailed information about the origin of the minerals
    used in those products. Id. at 56,320.
    The final rule does offer a temporary reprieve. During a
    two-year phase-in period (four years for smaller issuers), issuers
    may describe certain products as “DRC conflict
    undeterminable” instead of conflict-free or not conflict-free. Id.
    at 56,321-22. That option is available only if the issuer cannot
    determine through due diligence whether its conflict minerals
    originated in covered countries, or whether its minerals
    benefitted armed groups. Id. An issuer taking advantage of the
    phase-in by describing its products as “DRC conflict
    undeterminable” must still perform due diligence and file a
    conflict minerals report, but it need not obtain a private sector
    audit. Id.
    The Commission analyzed in some detail the final rule’s
    costs. Id. at 56,333-54. It estimated the total costs of the final
    rule would be $3 billion to $4 billion initially, and $207 million
    to $609 million annually thereafter. Id. at 56,334. To come up
    with this estimate, the Commission reviewed four cost estimates
    it received during the comment period, supplemented with its
    own data. Id. at 56,350-54. Where possible, the Commission
    4
    To be precise, an issuer must also submit a conflict minerals
    report if, as a result of its earlier inquiry, it knows that its conflict
    minerals came from covered countries. 77 Fed. Reg. at 56,320. That
    issuer must still perform due diligence, but the trigger for the report is
    the preliminary inquiry, not the due diligence results.
    7
    also estimated or described the marginal costs of its significant
    discretionary choices. Id. at 56,342-50.
    The Commission was “unable to readily quantify” the
    “compelling social benefits” the rule was supposed to achieve:
    reducing violence and promoting peace and stability in the
    Congo. Id. at 56,350. Lacking quantitative data on those issues,
    the Commission explained that it could not “assess how
    effective” the rule would be in achieving any benefits. Id.
    Instead, the Commission relied on Congress’s judgment that
    supply-chain transparency would promote peace and stability by
    reducing the flow of money to armed groups. Id. at 56,275-76,
    56,350. That judgment grounded many of the Commission’s
    discretionary choices in favor of greater transparency. See, e.g.,
    id. at 56,288, 56,291, 56,298.
    The National Association of Manufacturers challenged the
    final rule, raising Administrative Procedure Act, Exchange Act,
    and First Amendment claims.5 The district court rejected all of
    the Association’s claims and granted summary judgment for the
    Commission and intervenor Amnesty International. See Nat’l
    Ass’n of Mfrs. v. SEC, 
    956 F. Supp. 2d 43
    , 46 (D.D.C. 2013).
    II.
    Under the Administrative Procedure Act, a court must “hold
    unlawful and set aside agency action . . . found to be[] arbitrary,
    capricious, an abuse of discretion, or otherwise not in
    accordance with law[, or] in excess of statutory jurisdiction.” 5
    5
    The Association initially filed a petition for review in this court.
    After our opinion in American Petroleum Institute v. SEC, 
    714 F.3d 1329
     (D.C. Cir. 2013), the Association moved to transfer the case to
    the district court, and we granted the motion. See Per Curiam Order,
    Nat’l Ass’n of Mfrs. v. SEC, No. 12-1422 (D.C. Cir. May 2, 2013).
    
    8 U.S.C. § 706
    (2). In making these determinations, we review the
    administrative record as if the case had come directly to us
    without first passing through the district court. See Holland v.
    Nat’l Mining Ass’n, 
    309 F.3d 808
    , 814 (D.C. Cir. 2002).
    A.
    The Act does not include an exception for de minimis uses
    of conflict minerals. The Association claims that the rule should
    have included a de minimis exception and that the Commission
    erred when, during the rulemaking, it failed to recognize its
    authority to create one and assumed that the statute foreclosed
    any exception.
    Although the Commission acknowledges that it had the
    authority to create such an exception, see, e.g., 15
    U.S.C. § 78mm(a)(1); Ala. Power Co. v. Costle, 
    636 F.2d 323
    ,
    360-61 (D.C. Cir. 1979), it stated during the rulemaking that a
    de minimis exception “would be contrary to the [statute] and
    Congressional purpose,” and that if Congress intended to
    include such an exception it “would have done so explicitly” as
    it did in a nearby section of Dodd-Frank. 77 Fed. Reg. at 56,298.
    But we do not interpret that explanation the way the Association
    does. Read in context, the Commission’s language addressed the
    general purpose of the statute and the effects of its policy
    choices. Congress knew that conflict minerals are often used in
    very small quantities. The Commission, relying on text, context,
    and policy concerns, inferred that Congress wanted the
    disclosure regime to work even for those small uses. Id. A de
    minimis exception would, in the Commission’s judgment,
    “thwart” that goal. Id.
    The Commission’s explanation was thus a far cry from a
    mere “parsing of the statutory language,” Peter Pan Bus Lines,
    Inc. v. Fed. Motor Carrier Safety Admin., 
    471 F.3d 1350
    , 1354
    (D.C. Cir. 2006) (quoting PDK Labs., Inc. v. DEA, 
    362 F.3d
                  9
    786, 797 (D.C. Cir. 2004)), that has caused us to set aside
    agency action in other cases. See, e.g., id. at 1353 (statute’s
    “plain language” “does not permit” action); Arizona v.
    Thompson, 
    281 F.3d 248
    , 253-54 (D.C. Cir. 2002) (“intent of
    Congress, rather than of HHS” “does not permit” action); Alarm
    Indus. Commc’ns Comm. v. FCC, 
    131 F.3d 1066
    , 1068 (D.C.
    Cir. 1997) (“plain meaning” of a statute was “unambiguous”).
    Nothing in the Commission’s explanation suggests, as in those
    cases, that the statutory text by itself foreclosed any exception.
    Rather, the explanation “looks to be a quite ordinary
    construction of a statute over which the agency has been given
    interpretive authority.” PDK Labs., 362 F.3d at 807-08 (Roberts,
    J., concurring in part and concurring in the judgment).
    The Commission did not act arbitrarily and capriciously by
    choosing not to include a de minimis exception. Because conflict
    minerals “are often used in products in very limited quantities,”
    the Commission reasoned that “a de minimis threshold could
    have a significant impact on the final rule.” 77 Fed. Reg. at
    56,298 (quoting U.S. Dep’t of State Responses to Request for
    Comment). The Association suggests that this rationale would
    not apply to de minimis thresholds measured by mineral use per-
    issuer, instead of per-product. Although that sort of threshold
    was suggested in a few comments, those comments did not
    explain the merits of the proposal or compare it to other
    thresholds. The Commission was not obligated to respond to
    those sorts of comments. See Pub. Citizen, Inc. v. FAA, 
    988 F.2d 186
    , 197 (D.C. Cir. 1993); see also Alianza Fed. de Mercedes v.
    FCC, 
    539 F.2d 732
    , 739 (D.C. Cir. 1976). In any event, the
    Commission’s rationale still applies to a per-issuer exemption.
    Having established that conflict minerals are frequently used in
    minute amounts, the Commission could reasonably decide that
    a per-issuer exception could “thwart” the statute’s goals by
    leaving unmonitored small quantities of minerals aggregated
    over many issuers. Though costly, that decision bears a “rational
    10
    connection” to the facts. Motor Vehicle Mfrs. Ass’n v. State
    Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983).
    B.
    As we have mentioned, the final rule requires an issuer to
    conduct “due diligence” if, after its inquiry, it “has reason to
    believe that its necessary conflict minerals may have originated
    in” covered countries. 77 Fed. Reg. at 56,313 (emphasis added).
    According to the Association, that requirement contravenes the
    statute, which requires issuers to “submit to the Commission a
    report” only “in cases in which [their] conflict minerals did
    originate” in covered countries. 15 U.S.C. § 78m(p)(1)(A)
    (emphasis added).
    The Association has conflated distinct issues. The statute
    does require a conflict minerals report if an issuer has already
    performed due diligence and determined that its conflict
    minerals did originate in covered countries. But the statute does
    not say in what circumstances an issuer must perform due
    diligence before filing a report. The statute also does not list
    what, if any, reporting obligations may be imposed on issuers
    uncertain about the origin of their conflict minerals.
    In general, if a statute “is silent or ambiguous with respect
    to the specific issue at hand” then “the Commission may
    exercise its reasonable discretion in construing the statute.”
    Bldg. Owners & Managers Ass’n Int’l v. FCC, 
    254 F.3d 89
    ,
    93-94 (D.C. Cir. 2001) (quoting Chevron U.S.A., Inc. v. NRDC,
    
    467 U.S. 837
    , 843 (1984)). And that discretion may be exercised
    to regulate circumstances or parties beyond those explicated in
    a statute. See, e.g., Mourning v. Family Publ’ns Serv., Inc., 
    411 U.S. 356
    , 371-73 (1973); Tex. Rural Legal Aid, Inc. v. Legal
    Servs. Corp., 
    940 F.2d 685
    , 694 (D.C. Cir. 1991). Here, the
    statute is silent with respect to both a threshold for conducting
    due diligence, and the obligations of uncertain issuers. The
    11
    Commission used its delegated authority to fill those gaps, and
    nothing in the statute foreclosed it from doing so.6
    We also reject the Association’s argument that the
    Commission’s due diligence threshold was arbitrary and
    capricious. The Commission adopted a lower due diligence
    threshold to prevent issuers from “ignor[ing] . . . warning signs”
    that their conflict minerals originated in covered countries. 77
    Fed. Reg. at 56,313. In particular, the Commission wanted
    issuers who encounter red flags to “learn[] the ultimate source”
    of their conflict minerals. Id. at 56,314. Requiring a good-faith
    inquiry does not resolve the Commission’s concerns. A good-
    faith inquiry could generate red flags but, without a further due
    diligence requirement, those red flags would not give way to
    “ultimate” answers, which result would “undermine the goals of
    the statute.” Id.
    Although the Commission adopted an expansive rule, it did
    not go as far as it might have, and it declined to require due
    diligence by issuers who encounter no red flags in their inquiry.
    Id. By doing so, the Commission reduced the costs of the final
    rule, and resolved the Association’s concern that the rule will
    yield a flood of trivial information. Id.
    6
    The parties also disagree over a more subtle point. The
    Association concedes that due diligence can be required if an issuer
    has “reason to believe” its conflict minerals “did” originate in covered
    countries. See Oral Arg. Tr. at 4:14-5:16. Since “reason to believe”
    inherently conveys uncertainty, it is unclear how that standard would
    differ in practice from the Commission’s “reason to believe . . . may”
    standard. Because the statute is ambiguous we need not resolve the
    issue.
    12
    C.
    By its terms, the statute applies to “Persons Described,” or
    those that “manufacture[]” a product in which conflict minerals
    “are necessary to the functionality or production” of the product.
    15 U.S.C. § 78m(p)(2). If those persons file a conflict minerals
    report the statute requires them to describe products they
    “manufacture[] or contract[] to be manufactured.” Id.
    § 78m(p)(1)(A)(i). The Commission reconciled these provisions
    in an expansive fashion, applying the final rule not only to
    issuers that manufacture their own products, but also to those
    that only contract to manufacture. 77 Fed. Reg. at 56,290-91.
    The Association claims that decision violates the statute. By
    using the phrase “contracted to be manufactured” in one
    provision, but only “manufactured” in another, Congress
    allegedly intended to limit the scope of the latter.
    The persons-described provision, though it refers expressly
    to manufacturers, is silent on the obligations of issuers that only
    contract for their goods to be manufactured. Standing alone, that
    silence allows the Commission to use its delegated authority in
    determining the rule’s scope, just as with the due diligence
    provision. The Association’s argument is no more persuasive
    here because Congress explicitly used the phrase “contracted to
    be manufactured” in a nearby provision.
    The Association invokes the canon expressio unius est
    exclusio alterius. But that canon is “an especially feeble helper
    in an administrative setting, where Congress is presumed to have
    left to reasonable agency discretion questions that it has not
    directly resolved.” Cheney R. Co., Inc. v. ICC, 
    902 F.2d 66
    , 69
    (D.C. Cir. 1990); see Tex. Rural Legal Aid, 
    940 F.2d at 694
    . The
    more reasonable interpretation of the statute as a whole is that
    Congress simply “deci[ded] not to mandate any solution” and
    left the rule’s application to contractors “to agency discretion.”
    Cheney R. Co., 
    902 F.2d at 69
     (emphasis omitted).
    13
    Potential “internal[] inconsisten[cy]” between the due
    diligence and persons-described provisions also persuades us
    that the statute is ambiguous. See 77 Fed. Reg. at 56,291. An
    issuer subject to the rule must describe due diligence measures
    it undertakes on the source and chain of custody of “such
    minerals.” 15 U.S.C. § 78m(p)(1)(A)(i). “[S]uch minerals”
    refers, in the preceding paragraph, to “minerals that are
    necessary as described in paragraph (2)(B).” Id. § 78m(p)(1)(A).
    Paragraph (2)(B) in turn refers to minerals “necessary to . . . a
    product manufactured” by a person described. Id. § 78m(p)(2)
    (emphasis added). Thus, under the Association’s reading, an
    issuer would not have to describe its due diligence efforts (or
    even, presumably, to conduct due diligence) for products it does
    not manufacture. And yet, the statute requires that same issuer
    to describe its contracted-for products as not conflict free under
    § 78m(p)(1)(A)(ii) if they do not meet the statute’s definition.
    We do not understand how an issuer could describe its
    contracted-for products without first conducting due diligence
    on those products, or why the statute would require certain
    products to be described in a report without a corresponding
    explanation of the related due diligence efforts. The
    Commission’s interpretation is therefore reasonable because it
    reconciles otherwise confusing and conflicting provisions “into
    an harmonious whole.” FDA v. Brown & Williamson Tobacco
    Corp., 
    529 U.S. 120
    , 133 (2000) (internal quotation omitted).
    The Commission did not erroneously assume that its
    interpretation was compelled by Congress. As the district court
    explained, referring once to Congress’s intent as “clear” does
    not establish that the Commission believed it lacked discretion.
    Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 72 (quoting Ass’n of
    Private Sector Colls. & Univs. v. Duncan, 
    681 F.3d 427
    , 445
    (D.C. Cir. 2012)). The balance of the Commission’s
    explanation, as with the de minimis exception, falls well short of
    the language on which we have relied to set aside agency action.
    See supra at 8-9. Rather than merely parsing the statutory
    14
    language, the Commission provided policy justifications and
    structural inferences supporting its decision. 77 Fed. Reg. at
    56,291.
    Nor did the Commission act arbitrarily or capriciously. The
    final rule applies to contractors so that issuers cannot “avoid
    [its] requirements by contracting out of the manufacture” of
    their products. Id. at 56,291. The Association thinks the final
    rule reaches too far and overstates the risk of circumvention. But
    that is a question of judgment for the Commission, which we
    will not second-guess. The Commission’s explanation was
    “rational,” and that is enough. State Farm, 
    463 U.S. at 43
    .
    D.
    The final rule’s temporary phase-in period allows issuers to
    describe certain products as “DRC conflict undeterminable” and
    to avoid conducting an audit. 77 Fed. Reg. at 56,320-21. The
    Association claims the length of the phase-in—two years for
    large issuers and four years for small issuers—is inconsistent,
    arbitrary, and capricious because small issuers are part of large-
    issuer supply chains. All issuers, the Association says, will
    therefore face the same information problems. Not so. Large
    issuers, the Commission explained, can exert greater leverage to
    obtain information about their conflict minerals, id. at 56,322-
    23, and they may be able to exercise that leverage indirectly on
    behalf of small issuers in their supply chains. Id. at 56,323
    n.570. Like the district court, we can “see the trickledown logic
    underlying the Commission’s approach,” even if it does not hold
    in all cases. Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 73 n.24.
    15
    III.
    Two provisions require the Commission to analyze the
    effects of its rules. Under 15 U.S.C. § 78w(a)(2), the
    Commission “shall not adopt any rule [under § 78m(p)] . . .
    which would impose a burden on competition not necessary or
    appropriate” to advance the purposes of securities laws. Also,
    when the Commission “is engaged in rulemaking,” it must
    “consider, in addition to the protection of investors, whether the
    action will promote efficiency, competition, and capital
    formation.” 15 U.S.C. § 78c(f). The Association, citing several
    of our recent opinions, alleges that the Commission violated
    those sections because it did not adequately analyze the costs
    and benefits of the final rule. See Bus. Roundtable v. SEC, 
    647 F.3d 1144
     (D.C. Cir. 2011); Am. Equity Inv. Life Ins. Co. v.
    SEC, 
    613 F.3d 166
     (D.C. Cir. 2010); Chamber of Commerce v.
    SEC, 
    412 F.3d 133
     (D.C. Cir. 2005).7
    We do not see any problems with the Commission’s cost-
    side analysis. The Commission exhaustively analyzed the final
    rule’s costs. See 77 Fed. Reg. at 56,333-54. It considered its own
    data as well as cost estimates submitted during the comment
    period, id. at 56,350-54, and arrived at a large bottom-line figure
    that the Association does not challenge. Id. at 56,334. The
    Commission specifically considered the issues listed in § 78c(f)
    and concluded that the rule would impose competitive costs, but
    have relatively minor or offsetting effects on efficiency and
    capital formation. 77 Fed. Reg. at 56,350-51. The Association
    does not dispute those conclusions.
    7
    Dodd-Frank independently requires the Comptroller General of
    the United States to submit annual reports to Congress “assess[ing ]
    the effectiveness of . . . 15 U.S.C. 78m(p) in promoting peace and
    security in the” covered countries. 15 U.S.C. § 78m note (‘Conflict
    Minerals’).
    16
    Instead, the Association argues on the benefit side that the
    Commission failed to determine whether the final rule would
    actually achieve its intended purpose. But we find it difficult to
    see what the Commission could have done better. The
    Commission determined that Congress intended the rule to
    achieve “compelling social benefits,” id. at 56,350, but it was
    “unable to readily quantify” those benefits because it lacked data
    about the rule’s effects. Id.
    That determination was reasonable. An agency is not
    required “to measure the immeasurable,” and need not conduct
    a “rigorous, quantitative economic analysis” unless the statute
    explicitly directs it to do so. Inv. Co. Inst. v. Commodity Futures
    Trading Comm’n, 
    720 F.3d 370
    , 379 (D.C. Cir. 2013) (internal
    quotation marks omitted); see Chamber of Commerce, 
    412 F.3d at 360
    . Here, the rule’s benefits would occur half-a-world away
    in the midst of an opaque conflict about which little reliable
    information exists, and concern a subject about which the
    Commission has no particular expertise. Even if one could
    estimate how many lives are saved or rapes prevented as a direct
    result of the final rule, doing so would be pointless because the
    costs of the rule—measured in dollars—would create an apples-
    to-bricks comparison.
    Despite the lack of data, the Commission had to promulgate
    a disclosure rule. 15 U.S.C. § 78m(p)(1)(A). Thus, it relied on
    Congress’s “determin[ation] that [the rule’s] costs were
    necessary and appropriate in furthering the goals” of peace and
    security in the Congo. 77 Fed. Reg. at 56,350. The Association
    responds that the Commission only had to adopt some disclosure
    rule; Congress never decided the merits of the Commission’s
    discretionary choices. True enough. But Congress did conclude,
    as a general matter, that transparency and disclosure would
    benefit the Congo. See 15 U.S.C. § 78m note. And the
    Commission invoked that general principle to justify each of its
    discretionary choices. See id. at 56,291; (contractors to
    17
    manufacture); id. at 56,298 (no de minimis exception); id. at
    56,313-14 (due diligence standard); id. at 56,322 (phase-in).
    What the Commission did not do, despite many comments
    suggesting it, was question the basic premise that a disclosure
    regime would help promote peace and stability in the Congo. If
    the Commission second-guessed Congress on that issue, then it
    would have been in an impossible position. If the Commission
    had found that disclosure would fail of its essential purpose,
    then it could not have adopted any rule under the Association’s
    view of §§ 78w(a)(2) and 78c(f). But promulgating some rule is
    exactly what Dodd-Frank required the Commission to do.
    IV.
    This brings us to the Association’s First Amendment claim.
    The Association challenges only the requirement that an issuer
    describe its products as not “DRC conflict free” in the report it
    files with the Commission and must post on its website.8 15
    U.S.C. § 78m(p)(1)(A)(ii) & (E). That requirement, according
    to the Association, unconstitutionally compels speech. The
    district court, applying Central Hudson Gas & Electric Corp. v.
    8
    The district court stated that the Association had limited its First
    Amendment claim to product descriptions on an issuer’s “website[].”
    Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 73. In this court both the
    Commission and the intervenor Amnesty International understood the
    Association’s claim to encompass also the not “DRC conflict free”
    statement required in a company’s report to the Commission. See, e.g.,
    Appellee Br. 58, 61; Intervenor Br. 31. When asked about the scope
    of the claim during oral argument, counsel for the Association
    clarified that the First Amendment claim also extends to labeling of
    products as not conflict free in reports to the Commission. Oral Arg.
    Tr. at 15:25-16:11. The Association does not have any First
    Amendment objection to any other aspect of the conflict minerals
    report or required disclosures. Id. at 16:11-16:25.
    18
    Public Service Commission, 
    447 U.S. 557
    , 564-66 (1980),
    rejected the First Amendment claim. Nat’l Ass’n of Mfrs., 956
    F. Supp. 2d at 73, 75-82. We review its decision de novo. Am.
    Bus. Ass’n v. Rogoff, 
    649 F.3d 734
    , 737 (D.C. Cir. 2011).9
    The Commission argues that rational basis review is
    appropriate because the conflict free label discloses purely
    factual non-ideological information. We disagree. Rational basis
    review is the exception, not the rule, in First Amendment cases.
    See Turner Broad. Sys., Inc. v. FCC, 
    512 U.S. 622
    , 641-42
    (1994). The Supreme Court has stated that rational basis review
    applies to certain disclosures of “purely factual and
    uncontroversial information.” Zauderer v. Office of Disciplinary
    Counsel, 
    471 U.S. 626
    , 651 (1985). But as intervenor Amnesty
    International forthrightly recognizes,10 we have held that
    9
    The concurring opinion suggests that we hold the First
    Amendment portion of our opinion in abeyance and stay
    implementation of the relevant part of the final rule. We do not see
    why that approach is preferable, even though it might address the risk
    of irreparable First Amendment harm. Issuing an opinion now
    provides an opportunity for the parties in this case to participate in the
    court’s en banc consideration of this important First Amendment
    question. That is consistent with the court’s previous approach in
    United States v. Crowder, 
    87 F.3d 1405
    , 1409 (D.C. Cir. 1996) (en
    banc), cert. granted, judgment vacated, 
    519 U.S. 1087
     (1997), on
    remand 
    141 F.3d 1202
     (D.C. Cir. 1998) (en banc), in which we
    consolidated two cases presenting the same legal issue so that all
    parties could participate in the en banc proceeding.
    10
    See Intervenor Br. 32 n.5 (“Amnesty International recognizes
    that this panel is bound by R.J. Reynolds Tobacco Co. v. FDA, 
    696 F.3d 1205
     (D.C. Cir. 2012), which circumscribed Zauderer’s rational-
    basis standard.”). For its part, the Commission makes no attempt to
    distinguish R.J. Reynolds; in fact, it does not even acknowledge the
    holding of R.J. Reynolds regarding Zauderer, which the Commission
    also fails to cite.
    19
    Zauderer is “limited to cases in which disclosure requirements
    are ‘reasonably related to the State’s interest in preventing
    deception of consumers.’” R.J. Reynolds Tobacco Co. v. FDA,
    
    696 F.3d 1205
    , 1213 (D.C. Cir. 2012) (quoting Zauderer, 
    471 U.S. at 651
    ); see Nat’l Ass’n of Mfrs. v. NLRB, 
    717 F.3d 947
    ,
    959 n.18 (D.C. Cir. 2013). But see Am. Meat Inst. v. USDA, No.
    13-5281, 
    2014 WL 1257959
    , at *4-7 (D.C. Cir. Mar. 28, 2014),
    vacated and en banc rehearing ordered, Order, No. 13-5281
    (D.C. Cir. Apr. 4, 2014) (en banc). No party has suggested that
    the conflict minerals rule is related to preventing consumer
    deception. In the district court the Commission admitted that it
    was not. Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 77.
    That a disclosure is factual, standing alone, does not
    immunize it from scrutiny because “[t]he right against
    compelled speech is not, and cannot be, restricted to ideological
    messages.” Nat’l Ass’n of Mfrs., 717 F.3d at 957. Rather, “th[e]
    general rule, that the speaker has the right to tailor the speech,
    applies . . . equally to statements of fact the speaker would rather
    avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 
    515 U.S. 557
    , 573-74 (1995) (citing cases). As the Supreme Court
    put it in Riley v. National Federation of the Blind of North
    Carolina, Inc., the cases dealing with ideological messages11
    “cannot be distinguished simply because they involved
    compelled statements of opinion while here we deal with
    compelled statements of ‘fact.’” 
    487 U.S. 781
    , 797 (1988).
    11
    See, e.g., Wooley v. Maynard, 
    430 U.S. 705
     (1977); W. Va.
    State Bd. of Educ. v. Barnette, 
    319 U.S. 624
     (1943); see also Rumsfeld
    v. Forum for Academic & Institutional Rights, Inc., 
    547 U.S. 47
    , 61
    (2006) (“Some of [the] Court’s leading First Amendment precedents
    have established the principle that freedom of speech prohibits the
    government from telling people what they must say.”).
    20
    At all events, it is far from clear that the description at
    issue—whether a product is “conflict free”—is factual and non-
    ideological. Products and minerals do not fight conflicts. The
    label “conflict free” is a metaphor that conveys moral
    responsibility for the Congo war. It requires an issuer to tell
    consumers that its products are ethically tainted, even if they
    only indirectly finance armed groups. An issuer, including an
    issuer who condemns the atrocities of the Congo war in the
    strongest terms, may disagree with that assessment of its moral
    responsibility. And it may convey that “message” through
    “silence.” See Hurley, 
    515 U.S. at 573
    . By compelling an issuer
    to confess blood on its hands, the statute interferes with that
    exercise of the freedom of speech under the First Amendment.
    See 
    id.
    Citing our opinion in SEC v. Wall Street Publishing
    Institute, Inc., intervenor Amnesty International argues that
    rational basis review applies because the final rule exercises “the
    federal government’s broad powers to regulate the securities
    industry.” 
    851 F.2d 365
    , 372 (D.C. Cir. 1988).12 In Wall Street
    Publishing the court held that the Commission could, without
    running afoul of the First Amendment, seek an injunction
    requiring that a magazine disclose the consideration it received
    in exchange for stock recommendations. 
    Id. at 366
    .
    Significantly, the court chose to apply a less exacting level of
    scrutiny, even though the injunction did not fall within any well-
    established exceptions to strict scrutiny. 
    Id. at 372-73
    .
    It is not entirely clear what would result if Wall Street
    Publishing did apply to this case. The opinion never states that
    rational basis review governs securities regulations as such. At
    one point, the opinion even suggests that the power to regulate
    12
    The Commission does not join this argument.
    21
    securities might be roughly tantamount to the government’s
    more general power to regulate commercial speech. 
    Id. at 373
    .
    Whatever its consequences, we do not think Wall Street
    Publishing applies here. The injunction at issue there regulated
    “inherently misleading” speech “employed . . . to sell
    securities.” 
    Id. at 371, 373
    . The opinion thus concerned the same
    consumer-deception rationale as did Zauderer. See 
    id. at 374
    . As
    explained above, consumer-deception is not an issue here, and
    the “conflict free” label is not employed to sell securities.
    To read Wall Street Publishing broadly would allow
    Congress to easily regulate otherwise protected speech using the
    guise of securities laws. Why, for example, could Congress not
    require issuers to disclose the labor conditions of their factories
    abroad or the political ideologies of their board members, as part
    of their annual reports? Those examples, obviously repugnant to
    the First Amendment, should not face relaxed review just
    because Congress used the “securities” label.
    Having established that rational basis review does not
    apply, we do not decide whether to use strict scrutiny or the
    Central Hudson test for commercial speech. That is because the
    final rule does not survive even Central Hudson’s intermediate
    standard.
    Under Central Hudson, the government must show (1) a
    substantial government interest that is; (2) directly and
    materially advanced by the restriction; and (3) that the
    restriction is narrowly tailored. 
    447 U.S. at 564-66
    ; see R.J.
    Reynolds, 696 F.3d at 445. The narrow tailoring requirement
    invalidates regulations for which “narrower restrictions on
    expression would serve [the government’s] interest as well.”
    Cent. Hudson, 
    447 U.S. at 565
    . Although the government need
    not choose the “least restrictive means” of achieving its goals,
    there must be a “reasonable” “fit” between means and ends. Bd.
    22
    of Trs. v. Fox, 
    492 U.S. 469
    , 480 (1989). The government
    cannot satisfy that standard if it presents no evidence that less
    restrictive means would fail. Sable Commc’ns v. FCC, 
    492 U.S. 115
    , 128-32 (1989).
    The Commission has provided no such evidence here. The
    Association suggests that rather than the “conflict free”
    description the statute and rule require, issuers could use their
    own language to describe their products, or the government
    could compile its own list of products that it believes are
    affiliated with the Congo war, based on information the issuers
    submit to the Commission. The Commission and Amnesty
    International simply assert that those proposals would be less
    effective. But if issuers can determine the conflict status of their
    products from due diligence, then surely the Commission can
    use the same information to make the same determination. And
    a centralized list compiled by the Commission in one place may
    even be more convenient or trustworthy to investors and
    consumers. The Commission has failed to explain why (much
    less provide evidence that) the Association’s intuitive
    alternatives to regulating speech would be any less effective.
    The Commission maintains that the fit here is reasonable
    because the rule’s impact is minimal. Specifically, the
    Commission argues that issuers can explain the meaning of
    “conflict free” in their own terms. But the right to explain
    compelled speech is present in almost every such case and is
    inadequate to cure a First Amendment violation. See Nat’l Ass’n
    of Mfrs., 717 F.3d at 958. Even if the option to explain
    minimizes the First Amendment harm, it does not eliminate it
    completely. Without any evidence that alternatives would be
    23
    less effective, we still cannot say that the restriction here is
    narrowly tailored.13
    We therefore hold that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E),
    and the Commission’s final rule, 77 Fed. Reg. at 56,362-65,
    violate the First Amendment to the extent the statute and rule
    require regulated entities to report to the Commission and to
    state on their website that any of their products have “not been
    found to be ‘DRC conflict free.’”14
    The judgment of the district court is therefore affirmed in
    part and reversed in part and the case is remanded for further
    proceedings consistent with this opinion.
    So ordered.
    13
    Because the statute and final rule fail the third part of the
    Central Hudson test, we need not decide whether they satisfy the
    second part: that the speech restrictions directly and materially
    advance the government’s asserted interest.
    14
    The requirement that an issuer use the particular descriptor “not
    been found to be ‘DRC conflict free’” may arise as a result of the
    Commission’s discretionary choices, and not as a result of the statute
    itself. We only hold that the statute violates the First Amendment to
    the extent that it imposes that description requirement. If the
    description is purely a result of the Commission’s rule, then our First
    Amendment holding leaves the statute itself unaffected.
    SRINIVASAN, Circuit Judge, concurring in part: I concur
    fully in Parts I, II, and III of the court’s opinion, which sustain
    the SEC’s Conflict Minerals Rule against challenges brought by
    the National Association of Manufacturers under the
    Administrative Procedure Act and the Securities Exchange Act.
    Respectfully, I do not join Part IV of the court’s opinion, which
    addresses the Association’s First Amendment claim. A question
    of central significance to the resolution of that claim is pending
    before the en banc court in another case. I would opt to hold in
    abeyance our consideration of the First Amendment issue in this
    case pending the en banc court’s decision in the other, rather
    than issue an opinion that might effectively be undercut by the
    en banc court in relatively short order.
    The intersection between the two cases arises from the way
    in which the court resolves the Association’s First Amendment
    claim. An essential step in the majority’s First Amendment
    analysis is that the relaxed standard for reviewing compelled
    commercial-speech disclosures set forth in Zauderer v. Office of
    Disciplinary Counsel, 
    471 U.S. 626
    , 651 (1985), applies only if
    the disclosure requirement serves a governmental interest in
    preventing consumer deception. Ante, at 18-19. That precise
    question is currently pending before our en banc court in
    American Meat Institute v. United States Department of
    Agriculture, No. 13-5281. In that case, a panel of this court (of
    which I was a member) issued an opinion upholding labeling
    requirements for meat products under Zauderer’s standard,
    which requires that disclosure mandates be “reasonably related”
    to the government’s interests. __ F.3d __ (slip op. at 11)
    (quoting Zauderer, 
    471 U.S. at 651
    ). The panel relied on the
    government’s interest in arming consumers with additional
    information when purchasing food, rejecting the suggestion that
    Zauderer review applies only to disclosure mandates aimed to
    cure consumer deception. 
    Id.
     at __ (slip op. at 10).
    The full court, acting on the panel’s suggestion, 
    id.
     at __
    (slip op. at 14 n.1), has now voted to rehear the case en banc,
    2
    with oral argument set to take place on May 19, 2014. See
    Order, No. 13-5281 (D.C. Cir. Apr. 4, 2014) (en banc) (per
    curiam). The en banc court will receive supplemental briefing
    on the question whether review of “mandatory disclosure”
    obligations can “properly proceed under Zauderer” even if they
    serve interests “other than preventing deception.” 
    Id.
     My good
    colleagues in the majority here assume the answer to that
    question is no, and their decision on the First Amendment claim
    rests on that assumption. Ante, at 18-19. But if the en banc
    court in American Meat decides otherwise, the First Amendment
    claim in this case presumably would need to be reconsidered
    afresh.
    To avert that possibility, a panel in such circumstances can
    elect to withhold its decision until the en banc court decides the
    potentially dispositive question. See, e.g., United States v.
    Johnson, No. 91-3221, 
    1993 U.S. App. LEXIS 36925
    , at *1-2
    (D.C. Cir. Dec. 14, 1993) (per curiam) (non-precedential);
    United States v. Gerald, 
    5 F.3d 563
    , 565 (D.C. Cir. 1993);
    United States v. Dockery, 
    965 F.2d 1112
    , 1113-14 & n.1 (D.C.
    Cir. 1992); Pub. Citizen v. Nat’l Highway Traffic Safety Admin.,
    
    848 F.2d 256
    , 259 (D.C. Cir. 1988); see also Judicial Watch,
    Inc. v. Dep’t of Energy, No. 04-5204, 
    2004 U.S. App. LEXIS 22661
    , at *2 (D.C. Cir. Oct. 8, 2004) (per curiam) (on court’s
    own motion, ordering parties to show cause why appeal should
    not be held in abeyance pending en banc court’s resolution of
    related question). The court likewise frequently withholds a
    decision in analogous situations in which a case potentially
    implicates a question pending before the Supreme Court. See,
    e.g., Wagner v. FEC, No. 13-5162 (D.C. Cir. Sept. 11, 2013) (en
    banc) (per curiam); United States v. Epps, 
    707 F.3d 337
    , 341
    (D.C. Cir. 2013); Trump Plaza Assocs. v. NLRB, 
    679 F.3d 822
    ,
    826 (D.C. Cir. 2012); Belbacha v. Bush, 
    520 F.3d 452
    , 456-57
    (D.C. Cir. 2008). Ordinarily, when resolution of a case before
    a panel could turn on a question under consideration by the en
    3
    banc court in a separate case, the latter case would have been
    pending for some time. The circumstances here are unusual in
    that regard because this case was docketed shortly before, and
    presented to the court essentially contemporaneously with,
    American Meat. But because en banc review has now been
    granted in American Meat, my own respectful preference would
    be to withhold a decision on the First Amendment claim here
    pending the en banc decision in that case.
    To be sure, there is no certainty that the en banc decision in
    American Meat will alter the panel’s resolution here. As could
    always be the case when a panel addresses an issue pending
    before the en banc court in a different case, the full court might
    agree with the panel’s inclination—here, by concluding that
    Zauderer’s “reasonably related” standard applies only to
    disclosure requirements aimed to prevent consumer deception.
    Moreover, even if the en banc court were to decide that
    Zauderer extends more broadly, the majority suggests that the
    conflict minerals disclosure requirement might fail to satisfy
    another precondition to Zauderer scrutiny, i.e., that the
    disclosure be factual and non-controversial. See ante, at 20. As
    it stands, though, the majority’s decision on the First
    Amendment challenge hinges on the premise that Zauderer
    applies only to the prevention of deception—the issue now
    under consideration by the en banc court.
    I fully join the court’s resolution of the Association’s
    remaining challenges to the SEC’s rule, however. The parties
    understandably desire a final decision from this court before the
    May 31, 2014, deadline for the first conflict minerals disclosure
    report. See 
    77 Fed. Reg. 56,274
    , 56,305 (Sept. 12, 2012). Parts
    I, II, and III of the court’s opinion address non-First Amendment
    challenges bearing no connection to the en banc proceedings in
    American Meat. Those parts of the court’s opinion—which
    resolve the claims to which the Association devotes its principal
    4
    attention—should issue forthwith. See, e.g., Coke Oven Envtl.
    Task Force v. EPA, No. 06-1131, 
    2006 U.S. App. LEXIS 23499
    ,
    at *4 (D.C. Cir. Sept. 13, 2006) (per curiam) (severing one
    aspect of case and holding it in abeyance pending Supreme
    Court’s decision in Massachusetts v. EPA, 
    549 U.S. 497
     (2007));
    United States v. Coles, No. 03-3113, 
    2004 U.S. App. LEXIS 25904
    , at *3-4 (D.C. Cir. Dec. 13, 2004) (per curiam) (affirming
    judgment in part and holding remaining portion of case in
    abeyance pending Supreme Court’s decision in United States v.
    Booker, 
    543 U.S. 220
     (2005)); Wrenn v. Shalala, No. 94-5198,
    
    1995 U.S. App. LEXIS 8731
    , at *1-3 (D.C. Cir. Mar. 8, 1995)
    (per curiam) (non-precedential) (affirming dismissal of certain
    claims, reversing dismissal of other claims, and holding separate
    claim in abeyance pending Supreme Court decision in Kimberlin
    v. Quinlan, 
    515 U.S. 321
     (1995)).
    That approach would afford a resolution as to the lion’s
    share of the challenges to the SEC’s rule in advance of the date
    by which the parties seek a decision. It would still leave
    unresolved, though, the more narrowly focused challenge under
    the First Amendment to the particular requirement that
    manufacturers categorize certain products as “not found to be
    ‘DRC conflict-free’” in a conflict minerals report. 17 C.F.R. §
    249b.400, Form SD, Item 1.01(c)(2). The court, however, could
    stay enforcement of that aspect of the SEC’s rule pending
    disposition of the Association’s First Amendment claim.
    In these unique circumstances, there would be strong
    arguments supporting issuance of a stay under the governing
    standards. See generally Wash. Metro. Area Transit Comm’n v.
    Holiday Tours, Inc., 
    559 F.2d 841
    , 842-43 & n.1 (D.C. Cir.
    1977). With regard to the likelihood of success on the merits:
    the majority concludes that the disclosure requirement fails to
    satisfy the test of Central Hudson Gas & Electric Corp. v.
    Public Service Commission, 
    447 U.S. 557
     (1980); and there are,
    5
    at the least, substantial questions concerning Zauderer’s
    applicability given the grant of en banc review in American
    Meat and the majority’s suggestion, ante at 20, that the
    disclosure requirement may fail to qualify for Zauderer review
    regardless. With regard to irreparable harm and the balance of
    equities: “loss of First Amendment freedoms, for even minimal
    periods of time, unquestionably constitutes irreparable injury,”
    Elrod v. Burns, 
    427 U.S. 347
    , 373 (1976) (plurality); and any
    adverse consequences for the SEC and the public would be
    limited because a stay would leave the bulk of the SEC’s rule
    (including the disclosure obligations) in place, affecting only the
    requirement to use a particular phrase. The court perhaps could
    enter a stay on its own motion, see Fed. R. App. P. 2; Deering
    Milliken, Inc. v. FTC, 
    647 F.2d 1124
    , 1129 (D.C. Cir. 1978)
    (“balance of the equities” favors a stay “so much so that we
    should act sua sponte”), or at least could invite submissions
    from the parties on the desirability of a stay or order the SEC to
    show cause why one should not be granted.
    It bears noting that there would be no evident need to stay
    any part of the statute, as opposed to the SEC’s rule. The
    Exchange Act requires covered manufacturers to list products
    qualifying as “not DRC conflict free” under the statutory
    definition.      15 U.S.C. § 78m(p)(1)(A)(ii); see id. §
    78m(p)(1)(D). The Act, however, contains no mandate to use
    any magic words when categorizing those products. Congress
    elected to use the descriptor, “not DRC conflict free,” in the Act,
    id. § 78m(p)(1)(A)(ii), but Congress imposed no requirement for
    manufacturers to use that (or any) particular phrase when
    describing their products. The latter obligation comes from the
    SEC’s rule, not the statute. The rule, moreover, compels use of
    the phrase, “not been found to be ‘DRC conflict free’”—rather
    than “not DRC conflict free”—an adjustment viewed by the
    agency to ameliorate any First Amendment objections by
    allowing for a more “accurate disclosure.” 77 Fed. Reg. at
    6
    56,323. If the court were to withhold a decision on the
    Association’s First Amendment claim pending the en banc
    court’s decision in American Meat, but were to grant temporary
    relief to the Association in the interim, any stay order
    presumably would run against the SEC’s rule (not the statute)
    and would correspond to the particular disclosure compelled by
    that rule.
    

Document Info

Docket Number: 13-5252

Filed Date: 4/14/2014

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (30)

cheney-railroad-company-inc-v-interstate-commerce-commission-and-the , 902 F.2d 66 ( 1990 )

St AZ v. Thompson, Tommy G. , 281 F.3d 248 ( 2002 )

Sable Communications of California, Inc. v. Federal ... , 109 S. Ct. 2829 ( 1989 )

Board of Trustees of State Univ. of NY v. Fox , 109 S. Ct. 3028 ( 1989 )

public-citizen-v-national-highway-traffic-safety-administration-ford , 848 F.2d 256 ( 1988 )

Securities & Exchange Commission v. Wall Street Publishing ... , 851 F.2d 365 ( 1988 )

Chevron U. S. A. Inc. v. Natural Resources Defense Council, ... , 104 S. Ct. 2778 ( 1984 )

Food & Drug Administration v. Brown & Williamson Tobacco ... , 120 S. Ct. 1291 ( 2000 )

Riley v. National Federation of Blind of North Carolina, ... , 108 S. Ct. 2667 ( 1988 )

Massachusetts v. Environmental Protection Agency , 127 S. Ct. 1438 ( 2007 )

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 103 S. Ct. 2856 ( 1983 )

West Virginia State Board of Education v. Barnette , 63 S. Ct. 1178 ( 1943 )

Bldg Owners Mgr Assn v. FCC , 254 F.3d 89 ( 2001 )

Alianza Federal De Mercedes v. Federal Communications ... , 539 F.2d 732 ( 1976 )

Alarm Indust Comm v. FCC , 131 F.3d 1066 ( 1997 )

Belbacha v. Bush , 520 F.3d 452 ( 2008 )

United States v. Kelvin Dockery , 965 F.2d 1112 ( 1992 )

Elrod v. Burns , 96 S. Ct. 2673 ( 1976 )

Public Citizen, Inc., Aviation Consumer Action Project, and ... , 988 F.2d 186 ( 1993 )

United States v. Crowder, Rochelle A. , 141 F.3d 1202 ( 1998 )

View All Authorities »