195 F.3d 28 (D.C. Cir. 1999)
Independent Community Bankers of America, Petitionerv.Board of Governors of the Federal Reserve System, RespondentCitigroup, Inc., Intervenor
No. 98-1482
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 1999Decided November 2, 1999

On Petition for Review of an Order of the Board of Governors of the Federal Reserve System
Charles D. Reed argued the cause for petitioner. With him  on the briefs were Roger J. Lerner, and Robert J. McManus.
Katherine H. Wheatley, Assistant General Counsel, Board  of Governors of the Federal Reserve System, argued the cause for respondent.  With her on the brief were James V.  Mattingly, Jr., General Counsel, and Richard M. Ashton,  Associate General Counsel.
Douglas M. Kraus argued the cause and filed the brief in  support of respondent for intervenor Citigroup, Inc.
Sarah A. Miller was on the brief for amicus curiae American Bankers Association Securities Association.
Before:  Edwards, Chief Judge, Wald and Williams,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
Travelers Group, Inc. applied to  the Board of Governors of the Federal Reserve System to  become a bank holding company.  Under  3(a)(1) of the  Bank Holding Company ("BHC") Act, 12 U.S.C.  1842(a)(1)  (1994), Travelers needed Board approval before it could proceed with its plan to acquire all of the voting stock of an  existing bank holding company, Citicorp, Inc., and thereby  add all of Citicorp's banking and nonbanking subsidiaries to  its group of companies.  After completing this transaction  Travelers planned to rename itself Citigroup, Inc.  The  Board approved Travelers's application on the condition that  the new enterprise divest itself of its insurance business  within two years, so as to comply with  4(a)(2) of the BHC  Act, 12 U.S.C.  1843(a)(2) (1994).  And it found the acquisition in compliance with  20 of the Glass-Steagall Act, 12  U.S.C.  377 (1994), as none of Citigroup's affiliates would  derive more than 25% of its gross revenues from bank ineligible securities.  See Order Approving Formation of a  Bank Holding Company and Notice to Engage in Nonbanking Activities, 84 Fed. Res. Bull. 985, 985 (1998), reprinted in  J.A. 1, 3-4 ("1998 Order").


2
The Independent Community Bankers of America  ("ICBA"), representative of 5300 "community banks," i.e.,  relatively small and local ones, petitions for review of the  Board's approval order.  It claims that Citigroup's obligation  to dispose of its insurance business within two years, as  specified by  4(a)(2) of the BHC Act, is not good enough. As to Glass-Steagall, ICBA says that the Board's construction of  20--imposing only a proportional limit on revenues  from ineligible activities--is too loose, and should be supplemented either with some absolute volumetric limit so as to  prevent creation of a diversified financial services behemoth,  or with a case-specific risk analysis, or both.  ICBA objected  to the acquisition in the Board's proceedings, as required for  standing to challenge the action in court.  Jones v. Board of  Governors of the Fed. Reserve Sys., 79 F.3d 1168, 1170-71  (D.C. Cir. 1996).  We have jurisdiction to review under 12  U.S.C.  1848 (1994).  We find the Board's interpretation and  application of the statutes reasonable, and therefore affirm.


3
*  *  *


4
Section 4 of the BHC Act, 12 U.S.C.  1843, limits the  permissible financial activities for bank holding companies:


5
Except as otherwise provided in this chapter, no bank holding company shall --


6
...


7
(2) after two years from the date as of which it be-comes a bank holding company, ... retain direct or indirect ownership or control of any voting shares of any company which is not a bank or bank holding company or engage in any activities other than (A)those of banking or of managing or controlling bank sand other subsidiaries authorized under [the BHC Act]..., and (B) those permitted under [section 4(c)(8) of the BHC Act]....


8
The Board is authorized ... to extend the two year period ... for not more than one year at a time ... but no such extensions shall in the aggregate exceed three years.


9
12 U.S.C.  1843(a) (1994) (emphasis added).


10
Travelers, the acquiring entity, was engaged in various  activities, mainly insurance, not allowed for bank holding  companies under exceptions (A) and (B).  Accordingly, the  emerging bank holding company could not lawfully "retain" stock in any subsidiary conducting that business for more  than two years after the transaction by which it became a  bank holding company.  The Board thus made its approval of  the Travelers-Citicorp transaction contingent on a commitment that Citigroup would conform to the two-year divestiture requirement.  ICBA offers a series of arguments designed to prove that this literal compliance with  4(a)(2) is  inadequate.


11
Section 5(b) of the BHC Act and Board practice.  First,  ICBA urges that  5(b) of the BHC Act, 12 U.S.C.  1844(b)  (1994), a general grant of power to issue regulations and  orders so as to carry out the purposes of the Act,1 requires  the Board to reject applications that would frustrate its  purpose.  Here, ICBA claims, Citigroup is thwarting the  purposes of the BHC Act because it has no bona fide intent to  divest itself of its insurance activities.  Instead, it is using its  temporary power to mix large-scale insurance and banking to  put pressure on Congress to amend the BHC Act to allow  that mix.  ICBA also claims Citigroup will use the two years  to gain competitive advantage over other financial corporations.


12
ICBA is correct that Citigroup and the Board are in favor  of amending the BHC Act.  The officers of Citicorp and  Travelers have openly said that they hope that Citigroup's  structure will encourage Congress to amend the BHC Act. See Trading Places:  Travelers/Citicorp Press Conf., CNNfn  (CNN television broadcast, Apr. 6, 1998), available in  LEXIS, NEWS library, ALLNEWS File (quoting Sanford  Weill, Chairman and CEO of Travelers).  And the Board has  sent a unanimous letter to Congress supporting amendment  of the BHC Act to permit the combination of banking and  insurance activities.  See id. (quoting John Reid, CEO of  Citicorp).  (Recent news reports indicate, in fact, that Citigroup and the Board may be about to have their way.  See  Michael Schroder, "Glass-Steagall Compromise Is Reached: Lawmakers Poised To Pass Banking-Law Overhaul After


13
Perhaps ICBA means to argue that the contingent character of Citigroup's intent--the intent to comply with the law  unless Congress amends the BHC Act--so deeply reduces the  probability of compliance that its commitment should be  disregarded.  But the statute does not assign any role to the  emerging entity's reluctance to divest;  and if Citigroup ignores the Board's order (and the statutory mandate), the  Board has adequate tools to force it into compliance and  punish its misbehavior.  See, e.g., 12 U.S.C.  1847 (1994).


14
ICBA is on similarly thin ice with its charge that Citigroup  seeks an unfair competitive advantage.  As part of its conditional approval, the Board secured commitments from Citigroup designed to prevent it from leveraging its grace period  into a competitive advantage or creating corporate relationships that could not be easily unwound.  See 1998 Order at  86-93.


15
So we are rather uncertain just what "purpose" of the BHC  Act ICBA believes will be thwarted by the Board's adherence  to its language.  But even if there is some such frustrated  purpose, there is no basis for ICBA's assumption that the  Board could have freely used the general terms of  5(b) to  trump specific statutory language.  ICBA points to instances  where, in ICBA's view, the Board did so.  See, e.g., Citicorp  (South Dakota), 71 Fed. Res. Bull. 789 (1985);  Wilshire Oil  Co. v. Board of Governors of the Fed. Reserve Sys., 668 F.2d  732, 733 (3d Cir. 1981).  But the Board in those cases found  that the proposed transaction had no purpose other than to  evade the BHC Act's provisions.  See Citicorp, 71 Fed. Res. Bull. at 789 (ordering that Citicorp could not acquire a state chartered South Dakota bank to take advantage of a state law  allowing out-of-state bank holding companies to engage in  large-scale insurance activities so long as they did not compete with South Dakota insurance or banking interests);Wilshire Oil, 668 F.2d at 733 (upholding the Board's ruling  that a bank holding company could not opt out of the BHC  Act by making a small change to its withdrawal policy that it  had no intent to enforce).2  Here the Board specifically found  that the merger was not an attempt to evade the prohibitions  of the BHC Act.  1998 Order at 11.


16
More importantly, since those decisions the Supreme Court  has ruled that the Board cannot use  5(b) to bend its  statutorily granted authority.  Board of Governors of the Fed.  Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 373 n.6  (1986).  The Eleventh Circuit has applied the Dimension  decision to overturn a Board ruling factually similar to the  one in Wilshire.  See Florida Dep't of Banking & Finance v.  Board of Governors of the Fed. Reserve Sys., 800 F.2d 1534  (11th Cir. 1986).  Here, too, the Board cannot exercise nonexistent authority to alter the statutory text.


17
ICBA is also incorrect that the Board is bound by its cases  decided under  4(c)(9) of the BHC Act, 18 U.S.C.   1843(c)(9), which allows the Board to exempt foreign bank  holding companies from the Act upon determining that an  exemption would not be substantially at variance with the  Act's purposes.3  In Fortis, 1994 Fed. Res. Interp. Ltr.  LEXIS 313, and a related line of letter rulings, the Board  granted exemptions, but imposed substantial restrictions on  Fortis's and the other companies' insurance activities.  ICBA  asks why not here?  But the Board distinguished those cases  as being based on the foreign bank holding companies' unique  ability to expand their insurance businesses during any period  of exemption, and on the Board's broad discretionary power  under  4(c)(9) to grant or withhold exemption altogether. See 1998 Order at 87 n.102.


18
Board regulations.  ICBA argues that the Board's regulations require Citigroup to come into compliance with  4(a)(2)  as quickly as possible and to submit a detailed divestiture  plan before, or soon after, the merger's approval.  See 12  C.F.R.  225.138(b)(1) (1999) ("[T]he affected company should  endeavor and should be encouraged to complete the divestiture as early as possible during the specific period.");  id.   225.138(b)(2) (1999) ("[A bank holding company] should  generally be asked to submit a divestiture plan promptly.").But these regulations are explicitly labelled "statement[s] of  policy," and accordingly bind neither the agency nor the  public.  Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C.  Cir. 1997).  We note, in any event, that the Board here  explained that a detailed plan was unnecessary because of the  voluminous material in the record concerning Travelers's  ability to comply with the divestiture requirement.  See 1998  Order at 12.


19
*  *  *


20
ICBA's second claim rests on  20 of the Glass-Steagall  Act (the "Act"), 12 U.S.C.  377.4 The Act limits the  securities-related activities of commercial banks and their  affiliates.  Section 16 of the Act, 12 U.S.C.  24 (Seventh),  prohibits banks from underwriting or dealing in any securities, but specifically permits them to underwrite United  States government obligations and state or municipal general  obligations.  The allowed activities are commonly referred to  as "bank-eligible securities," while all others are called, not  surprisingly, "bank-ineligible securities."  See Securities Industries Ass'n v. Board of Governors of the Fed. Reserve  Sys., 900 F.2d 360, 361 (D.C. Cir. 1990).  In contrast to  16's  general prohibition,  20 permits companies affiliated with  banks to underwrite or deal in securities so long as the  affiliate is not "engaged principally" in those activities:


21
[N]o member bank [of the Federal Reserve System] shall be affiliated ... with any corporation, association, business trust, or other similar organization engaged principally in the issue, flotation, underwriting, public sale, or distribution ... of stocks, bonds, debentures, notes, or other securities....


22
12 U.S.C.  377 (1994) (emphasis added).  The Board and the  courts have read this limit as applying only to bank-ineligible  securities, see Securities Industry Ass'n v. Board of Governors of the Fed. Reserve Sys., 839 F.2d 47, 58-62 (2d Cir.  1988) ("SIA I"), and ICBA does not contest that reading.


23
In 1996 the Board adopted its current test, stating that if  an affiliate derives more than 25% of its revenues from bank ineligible securities, it is "engaged principally" in such activities.  See Revenue Limit on Bank-Ineligible Activities of  Subsidiaries of Bank Holding Companies Engaged in Underwriting and Dealing in Securities, 61 Fed. Reg. 68,750,  68,754 (1996) ("1996 Order").  Instead, says ICBA, at least  for a merger of this size the Board should examine the risks  associated with the particular kind of bank-ineligible securities at issue and the absolute size of the merging entities'  ineligible securities activities.  Under those standards, ICBA  urges, Citigroup--which contains several large securities  companies including Salomon Smith Barney--is "engaged  principally" in bank-ineligible securities activities.5


24
We must first consider our jurisdiction.  The rule applied  to the Travelers-Citicorp transaction is the rule adopted in the Board's 1996 Order, which was reviewable in the court of  appeals by a petition filed "within thirty days after the entry  of the Board's order."  See 12 U.S.C.  1848.  ICBA sought  no review.  Responding to the suggestion that this inaction  might preclude part of its appeal, ICBA speaks as if it  challenged only the application of the 25% rule to this case  rather than the rule itself.  But in fact there is not a great  deal left to ICBA's appeal if we must assume the lawfulness  of the rule's standard--a 25% ceiling on the ineligible businesses' contribution to revenue, functioning as the exclusive  limit under  20.  So we must decide whether the time limit  in  1848 bars our review of ICBA's substantive claim against  the rule itself.


25
We have frequently said that a party against whom a rule  is applied may, at the time of application, pursue substantive  objections to the rule, including claims that an agency lacked  the statutory authority to adopt the rule, even where the  petitioner had notice and opportunity to bring a direct challenge within statutory time limits.  See Graceba Total Communications, Inc. v. FCC, 115 F.3d 1038, 1040-41 (D.C. Cir.  1997);  Public Citizen v. NRC, 901 F.2d 147, 152 & n.1 (D.C.  Cir. 1990);  NLRB Union v. Federal Labor Relations Auth.,  834 F.2d 191, 195 (D.C. Cir. 1987);  Montana v. Clark, 749  F.2d 740, 744 n.8 (D.C. Cir. 1984) ("[W]here ... the petitioner  challenges the substantive validity of a rule, failure to exercise a prior opportunity to challenge the regulation ordinarily  will not preclude review.");  Functional Music, Inc. v. FCC,  274 F.2d 543, 546 (D.C. Cir. 1958) ("[U]nlike ordinary adjudicatory orders, administrative rules and regulations are capable of continuing application;  limiting the right of review of  the underlying rule would effectively deny many parties  ultimately affected by a rule an opportunity to question its  validity.").  Although the discussions of the application exception in several of these cases were dicta, Graceba clearly  applied the exception.  115 F.3d at 1040-41 (excusing failure  to challenge May 1994 rulemaking).  By contrast, we have  said that procedural attacks on a rule's adoption are barred  even when it is applied.  See Jem Broadcasting Co. v. FCC,  22 F.3d 320, 325 (D.C. Cir. 1994) ("[C]hallenges to the procedural lineage of agency regulations, whether raised by direct  appeal, by petition for amendment or rescission of the regulation or as a defense to an agency enforcement proceeding,  will not be entertained outside the 60-day period provided by  statute.");  NRDC v. NRC, 666 F.2d 595, 602-03 (D.C. Cir.  1981) (dismissing petition alleging procedural defects as untimely);  see also Public Citizen, 901 F.2d at 152 ("[A] statutory review period permanently limits the time within which a  petitioner may claim that an agency action was procedurally  defective.").


26
In one case, Raton Gas Transmission Co. v. FERC, 852  F.2d 612 (D.C. Cir. 1988), we suggested that even at a time of  application petitioners may obtain review of an agency regulation outside of a statutorily prescribed period only for "gross  violations of statutory or constitutional mandates, or denial of  an adequate opportunity to test the regulation in court."  Id.  at 615.  We offered no explanation for suddenly limiting  permissible statutory challenges to ones of "gross" violation,  and we proceeded to reach the merits of the petitioner's  claim, see id. at 617.  Our later cases have returned to the  long standing position allowing substantive challenges to the  application of a regulation.  See, e.g., Graceba, 115 F.3d at  1040;  Public Citizen, 901 F.2d at 152 & n.1.  As a result, we  think it inappropriate to follow the language of Raton.  See  Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996)  ("[W]hen faced with an intra-circuit conflict, a panel should  follow earlier, settled precedent over a subsequent deviation  therefrom.");  Texaco Inc. v. Louisiana Land & Exploration  Co., 995 F.2d 43, 44 (5th Cir. 1993) ("In the event of conflicting panel opinions ... the earlier one controls, as one panel of  this court may not overrule another.")


27
Finally, one of our cases held that (absent special exceptions, as for a challenger that lacked a meaningful opportunity to challenge the rule during the review period) even a  party subjected to a rule could not bring a substantive  challenge to the rule at the time of enforcement.  Eagle Picher v. EPA, 759 F.2d 905, 914 (D.C. Cir. 1985) (the "mere  fact that the rule is applied to the petitioner after the  statutory period expires" is not enough to permit review);  see also id. at 911-12 (discussing the limited exceptions).  But in  Eagle-Picher the statute authorizing judicial review explicitly  prohibited all review after the prescribed period.  See 42  U.S.C.  9613(a) (1982) ("Any matter with respect to which  review could have been obtained under this subsection shall  not be subject to judicial review in any civil or criminal  proceeding for enforcement."), quoted in Eagle-Picher, 759  F.2d at 911.  The Administrative Conference of the United  States in 1982 urged Congress not to prohibit challenges to  the statutory authority for a rule unless there were a compelling need for prompt compliance on a national or industry  wide basis, see Recommendations of the Administrative Conference, 47 Fed. Reg. 58207, 58210 (1982), and the dearth of  statutes that prohibit review after the statutory period has  run suggests that Congress has generally agreed.  See generally Frederick Davis, "Judicial Review of Rulemaking:  New  Patterns and New Problems," 1981 Duke L.J. 279, 281, 28290 (reviewing statutes and cases).  The statute at issue here,  12 U.S.C.  1848 (1994), contains no such explicit bar.  Accordingly, we may now turn to the merits and consider  ICBA's attack on the Board's exclusive 25% revenue limit.


28
Section 20 of the Glass-Steagall Act prohibits a member  bank from being affiliated with any corporation "engaged  principally" in various bank-ineligible securities transactions. We agree with the Second Circuit that the term "engaged  principally" is "intrinsically ambiguous."  SIA I, 839 F.2d at  63.  Thus we defer to any reasonable Board interpretation. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43  (1984).


29
ICBA argues that  20 is designed to minimize risk, and  therefore the Board cannot confine itself to the revenue share  contributed by bank-ineligible activities but must examine  such risk variables as the nature of the bank-ineligible assets  at issue and the absolute size of the merger participants.  We  first address the Board's selection of 25% for the limit, and  then these two special objections.


30
Before 1987 the Board had no occasion to test the meaning  of  20.  In 1987, in response to specific requests to allow  non-bank affiliates to engage in underwriting and dealing of bank-ineligible securities, the Board decided that an affiliate  is "engaged principally" in bank-ineligible activities if:  (1) the  gross revenue from such activities exceeds 5-to-10 percent of  the affiliate's total gross revenues;  and (2) the affiliate's  activities in each type of ineligible security accounts for more  than 5-to-10 percent of the total domestic market for that  activity in the prior year.  See J.P. Morgan & Co., 73 Fed.  Res. Bull. 473 (1987).  As a prudential matter, the Board  initially limited the share of ineligible revenue to 5% so that it  could gain experience in supervising such affiliates.  The  Second Circuit struck down the market share portion of the  test, leaving in place only the gross revenues test.  SIA I, 839  F.2d at 67 (2d Cir. 1988).  It reasoned that Congress had  been fully aware of the growing proportional role of commercial banks in securities origination, and yet had explicitly  chosen a formula directly reflecting its anxiety "over the  perceived risk to bank solvency resulting from their over involvement in securities activity."  Id. at 68.  In Securities  Industries Ass'n v. Board of Governors of the Fed. Reserve  Sys., 900 F.2d 360, 364 (D.C. Cir. 1990), we noted that the  Second Circuit's decision had necessarily upheld a pure revenue share test as an adequate definition of "engaged principally."


31
In 1989, the Board raised the ceiling on affiliates' ineligible  activities to 10% of total revenue.  See 1996 Order at 68751 &  n.10.  Finally, in 1996 it raised the ceiling to the current 25%.1996 Order at 68754.  It noted at the time that some commentators worried that its new rule would allow banks to  "affiliate with the nation's largest investment banks, contrary  to the express purpose of section 20 of the Glass-Steagall  Act."  Id.  But it set the concern aside with a look at history,  identifying the controlling question as whether its test would  have allowed the sort of securities affiliations prevalent in the  1920s and 1930s--the apparent sources of congressional concern.  Id.  At that time, firms "deriving more than 25% of  their income from underwriting and dealing in securities were  common."  Id.


32
In its 1996 Order the Board also considered--and rejected--the idea that increasing the gross revenues limit from  10% to 25% would cause "an increased risk to the safety and soundness or reputation of the nation's banks or to the  federal safety net."  1996 Order at 68755.  It based that  conclusion on bank holding companies' demonstrated ability  to manage the risks of investment banking over the previous  nine years, the substantial safeguards in place to insulate  banks from the failure of their affiliates, and the independent  regulatory requirements administered by the Securities Exchange Commission that protect against insolvency of  20  affiliates.  Id.


33
Where a statute can reasonably be understood to invite an  agency to draw a quantitative proportional line, it is rare that  a court can reject the agency's selection of one percentage  over another.  We see no basis for doing so here.  Accordingly, we turn to ICBA's main attack, which is directed to  whether the statute allows the Board to choose a purely  quantitative proportional line and thereby to disregard other  indicia of risk and/or the absolute level of sales volume.


34
Risk.  In its 1996 Order, the Board determined that  20  does not allow for an independent examination of the risk  associated with the particular type of securities activities at  issue.  Instead, the Board may only decide whether an affiliate is "engaged principally" in bank-ineligible activities.  1996  Order, 61 Fed. Reg. at 68754 ("Congress itself has decided  when a company's risks of underwriting and dealing are too  great to allow affiliation with a bank:  whenever they constitute a principal activity of that company.").  The Board  decided that more individualized analyses would be unworkable, and a case-by-case analysis would produce substantial  uncertainty among affiliates and examiners.  Id. at 68754.(Recall that the limit endures, rather than being a one-shot  issue at a moment of acquisition.)  Moreover, the Board  found that the level of risk from an affiliation is already  examined as part of the required analysis under the BHC  Act.  See 12 U.S.C.  1842(c);  1998 Order at 14-21, 74 n.19;1996 Order at 68755.  Although this analysis is limited to the  moment a company applies to become a bank holding company, the Board has continuing authority to examine the investment activities of affiliates whose investments put the bank  holding company's subsidiary bank at risk.  See 12 U.S.C.  1844(e)(1).  The Board's decision appears entirely reasonable in light of Congress's chosen language.


35
Absolute sales volume.  As we observed before, the Second  Circuit in SIA I found that the Board lacked the power to use  a market share test.  839 F.2d at 67-68.  It nonetheless left  open the possibility of a volumetric limit of sales, id. at 68, an  option the Board had rejected on the ground that it was too  easily subject to manipulation, id. at 67.  Thus, ICBA is  correct to observe that no court has rejected the lawfulness of  such a volumetric limit.  Nor do we do so here.  But at the  same time we believe that the phrase "engaged principally"  strongly suggests, as the Second Circuit observed, an overriding concern with risks due to a bank affiliate's "over involvement" in securities activity.  Accordingly, we believe a  test addressed solely to the ineligible securities business's  proportional contribution to revenue is at least permissible  under  20.


36
*  *  *


37
ICBA concludes with a novel claim that the Board's action  violates the constitutionally required separation of powers. Had the Board acted in violation of Congress's will, of course  there would be a logical claim that such an assertion of power  by a part of the executive branch violated "separation of  powers," but no such claim would be necessary.  Because it is  undisputed that the Board can exercise only powers granted  by Congress, and (unlike the President) has none supplied  directly by the Constitution, it appears that the activities of  the Board (and other such agencies) will likely never call for  the sort of analysis provided by the tripartite framework of  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 63738 (1952) (Jackson, J., concurring), designed to take account  of powers held directly by the President.


38
*  *  *

The Board's order is

39
Affirmed.



Notes:


1
 12 U.S.C.  1844(b) provides in relevant part:
The Board is authorized to issue such regulations and orders as may be necessary to enable it to administer and carry out the purposes of this chapter and prevent evasions there of. Last-Minute Deals," Wall St. J., Oct. 25, 1999, at A2.)  But   4(a)(2) makes no mention of applicants' legislative hopes or  schemes, and the Board's order, which ICBA acknowledges  tracks the statutory language, clearly requires Citigroup to  make the necessary divestitures within the specified time  period.  See 1998 Order at 3, 12-13, 18, 66-67, 89-90, 107.There is not the slightest suggestion that the Board would  have applied the statute any other way if its policy views had  been different.


2
 ICBA also argues that the Board has regularly departed from  the statutory text by granting grace periods to existing bank  holding companies whose acquisitions cause them to violate   4(a)(1) of the BHC Act, 12 U.S.C.  1843(a)(1).  This case presents no opportunity to review the Board's practice of granting grace  periods under  4(a)(1).


3
 Section 4(c)(9) of the BHC Act, 18 U.S.C.  1843(c)(9) provides  in relevant part:
(c) The prohibitions in this section shall not apply to...
(9) ... [a] company organized under the laws of a foreign country ... if the Board ... determines that ... the exemption would not be substantially at variance with the purposes of this chapter and would be in the public interest.


4
 The Glass-Steagall Act is the common name for several scattered provisions of the Banking Act of 1933.


5
 ICBA, in advocating an absolute volumetric test argued that one  of the proper units of analysis was Citigroup as a whole, whereas  the Board continued its policy of examining the businesses only  subsidiary by subsidiary.  In light of our disposition of the case we  need take no position on this issue.


