184 F.3d 872 (D.C. Cir. 1999)
Radio-Television News Directors Association and National Association of Broadcasters, Petitionersv.Federal Communications Commission and United States of America, RespondentsOffice of Communication, Inc., of the United Church of Christ, et al.,Intervenors
No. 98-1305 Consolidated with No. 98-1334
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 1999Decided August 3, 1999

[Copyrighted Material Omitted]
On Petitions for Review of an Order of the Federal Communications Commission
Daniel E. Troy argued the cause for petitioners.  With him  on the briefs were Richard E. Wiley, Henry L. Baumann,  Jack N. Goodman and Steven A. Bookshester.  Kathleen A.  Kirby entered an appearance.
David M. Hunsaker and Denise B. Moline were on the  briefs for appellant Freedom of Expression Foundation, Inc.
Christopher J. Wright, General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Frank W. Hunger, Assistant  Attorney General at the time the brief was filed, U.S. Department of Justice, Mark B. Stern and Jacob M. Lewis, Attorneys, Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, and C. Grey Pash, Jr.,  Counsel.
Andrew Jay Schwartzman argued the cause for intervenors Office of Communication, Inc., of the United Church of  Christ, et al.  With him on the brief was Gigi B. Sohn.
Angela J. Campbell and Randi M. Albert were on the brief  for amicus curiae Safe Energy Communication Council.
Before:  Edwards, Chief Judge, Wald and Rogers, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
These consolidated appeals challenge the Federal Communications Commission's ("FCC")  decision to not repeal the personal attack and political editorial rules.  Petitioners1 maintain that the rules are "two vestiges of a bygone area of broadcasting regulation" that should  have disappeared when the FCC abrogated the fairness  doctrine that the two rules were allegedly intended to "effectuate."  Preserving the rules when their rationale has evaporated, petitioners contend, is arbitrary and capricious, and  violates the First Amendment.  The FCC has deadlocked on its proposal to repeal the rules, so we review the joint  statement of Commissioners Ness and Tristani supporting  retention of the rules as the opinion of the agency.  See In re:Radio-Television News Dirs. Ass'n, No. 97-1528, 1998 WL  388796 (D.C. Cir. May 22, 1998) (unpublished opinion).


2
Although the FCC issued a notice of proposed rulemaking  ("NPRM") proposing to repeal or modify the two challenged  rules because it had concluded that the rules might no longer  be in the public interest, and that "especially searching"  reexamination was necessary, the FCC now defends the rules  primarily by negative implication, rejecting attacks on the  rules while assuming their underlying validity.  Absent affirmative justification of the two rules as being in the public  interest, or explanation of why the rules should survive in  light of FCC precedent rejecting the fairness doctrine, the  court is left in large part to guess the rationale that shields  the rules from critiques the FCC found persuasive when  reviewing the fairness doctrine, and which the FCC itself  proffered in the NPRM.  Such an approach to defending an  existing rule against a suggestion that it be repealed might in  other circumstances be sufficient to withstand judicial review  under the Administrative Procedure Act, 5 U.S.C. § 706  (1994) ("APA"), but not where the NPRM and subsequent  FCC precedent frame the proceeding to require a persuasive  rationale for rules that seem unnecessary.  Without a clear  explanation for the rules, the court is not in a position to  review whether they continue to serve the public interest, and  whether they burden First Amendment interests too severely.  The court, therefore, cannot affirm the FCC's order, but  neither can it conclude that the FCC could not on remand  justify the rules consistently with principles of administrative  law.  Accordingly, rather than enjoining enforcement of existing rules that the FCC might be able to justify, we must  remand the case for the FCC to further explain its decision  not to repeal or modify them.  Should a further challenge be  made to the FCC's decision on remand, the court will be in a  position to test the FCC's rationale against the factual and  legal attacks that petitioners raise against it.

I.

3
From the early days of spectrum regulation in the 1930s  and 1940s, the FCC imposed upon broadcasters a duty that  came to be known as the "fairness doctrine."  To merit a  broadcast license, applicants were obliged, first, "to cover  vitally important controversial issues of interest in their  communities," and second, "to provide a reasonable opportunity for the presentation of contrasting viewpoints."  Syracuse Peace Council, 2 F.C.C.R. 5043, 5058 n.2 (1987), recon.  denied, 3 F.C.C.R. 2035 (1988).  The fairness doctrine persisted until 1987, although its death knell sounded in 1985,  when the FCC released an exhaustive "Fairness Report"  declaring the doctrine obsolete and "no longer [in] ... the  public interest."  Fairness Report, 102 F.C.C.2d 142, 246  (1985).  The report concluded that new media technologies  and outlets ensured  dissemination of diverse viewpoints without need for federal regulation, that the fairness doctrine  chilled speech on controversial subjects, and that the doctrine  interfered too greatly with journalistic freedom.  See id. at  147.  The FCC did not immediately abrogate the doctrine,  however, electing instead to await resolution of proposals  percolating in Congress.  See id. 247.  At the time, the FCC  was concerned that the 1959 amendments to the Communications Act rendered the fairness doctrine a statutory necessity,  subject to repeal only by Congress.  See id. at 227-46.  Less  than a year later, the court held that the fairness doctrine  derived from the FCC's mandate to serve the public interest,  subject to changing agency interpretation, and was not compelled by statute.  See Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 517-18 (D.C. Cir. 1986).  The  doctrine's demise swiftly followed.


4
In 1987, the FCC announced during an adjudication that it  would no longer enforce the fairness doctrine.  Syracuse  Peace Council, 2 F.C.C.R. at 5043.  Relying heavily on its  1985 Fairness Report, the FCC reasoned that the doctrine  imposed substantial burdens on broadcasters without countervailing benefits.  As a result, the FCC concluded that the  doctrine was inconsistent with both the public interest and  the First Amendment principles it was intended to promote.


5
See id. at 5052.  The court affirmed the conclusion that the  fairness doctrine no longer served the public interest, but did  not reach the constitutional question.  See Syracuse Peace  Council v. FCC, 867 F.2d 654, 656 (D.C. Cir. 1989).


6
The Syracuse order covered the fairness doctrine only as  applied generally, and did not review each of its evolving  permutations.  In particular, the FCC noted that the order  created precedent for, but did not directly resolve, reconsideration of the political editorial and personal attack rules,  much less what effect general abrogation of the fairness  doctrine would have on the doctrine's "every conceivable  application."  Syracuse Peace Council, 2 F.C.C.R. at 5063  n.75.


7
The FCC promulgated the political editorial and personal  attack rules in 1967, although it had previously enforced them  as corollaries to the fairness doctrine.  See Amendment of  Part 73 of the Rules to Provide Procedures in the Event of a  Personal Attack or Where a Station Editorializes as to  Political Candidates, 8 F.C.C.2d 721 (1967) ("Personal Attacks & Political Editorials").  The two rules are distinct,  although petitioners attack them for essentially the same  reasons.

The personal attack rule provides that:

8
When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity, or like personal qualities of an identified person or group, the licensee shall... transmit to the persons or group attacked ... [the substance of the attack] and an offer of a reasonable opportunity to respond over the licensee's facilities.


9
47 C.F.R. § 73.1920(a) (1998).  Several exceptions limit the  rule, including exclusion of attacks in "bona fide newscasts."47 C.F.R. § 73.1920(b)(4).  The political editorial rule has a  similar structure, affording political candidates notice of and  an opportunity to respond to editorials opposing them or endorsing another candidate.2  See 47 C.F.R. § 73.1930  (1998).


10
The Supreme Court has rejected facial First Amendment  challenges to both rules.  See Red Lion Broad. Co. v. FCC,  395 U.S. 367 (1969).3  The Court started from the premise  that "[t]here is no sanctuary in the First Amendment for  unlimited private censorship operating in a medium not open  to all."  Id. at 392.  Given the scarcity of broadcast spectrum  relative to interested users, the Court concluded that victims  of personal attacks and candidates opposed by editorials  might be "unable without governmental assistance to gain  access to ... [broadcast media] for expression of their views."Id. at 400.  Because dissemination of these views would serve  the public's right "to receive suitable access to social, political,  esthetic, moral, and other ideas and experiences," id. at 390,  the First Amendment benefits of the personal attack and  political editorial rules justified the imposition on licensees'  asserted right "continuously to broadcast whatever they  choose."  Id. at 386.  The Court cautioned, however, that "if  experience with the administration of [these] doctrines indicates that they have the net effect of reducing rather than  enhancing the volume and quality of coverage [of public issues], there will be time enough to reconsider the constitutional implications."  Id. at 393.


11
The instant case arises from a petition for rulemaking filed  by the NAB to repeal the political editorial and personal  attack rules.  The petition asserted that the rules entailed  unnecessarily severe administrative burdens and were  counter-productive because they chilled controversial speech  rather than encouraging balanced debate.  In light of the  FCC's experience administering the rules and Red Lion's  cautionary limitation to then-prevailing facts, the petition  invited the FCC to conclude that the rules were obsolete and  had undermined, rather than furthered, First Amendment  goals.  In 1983, the FCC issued an NPRM proposing to  repeal or modify the political editorial and personal attack  rules.  See Repeal or Modification of the Personal Attack  and Political Editorial Rules, 48 Fed. Reg. 28,295 (1983).The NPRM outlined the development of First Amendment  law after Red Lion, noting a need to test the challenged rules  under the "more exacting framework of current law."  Id. at  28,297.  The FCC went so far as to state that "[w]e believe  the petitioner [NAB] and other commenters have presented a  compelling case that the personal attack and political editorial  rules do not serve the public interest."  Id. at 28,301.  Consequently, the FCC concluded, "our reexamination of the public  interest justification for the ... rules must be especially  searching."  Id. at 28,298.


12
And then nothing happened for a long time.  The Fairness  Report appeared in 1985, but did not discuss the political  editorial and personal attack rules.  The fairness doctrine  disappeared in 1987, again without resolution of the pending  NPRM.  In 1987, NAB and other interested parties filed a  "petition for expedited rulemaking" and clarification of Syracuse's effect on the personal attack and political editorial  rules.  And still nothing happened.  The FCC's inaction led  to a second "petition for expedited rulemaking" in 1990.  This  petition reiterated that the challenged rules were obsolete  and should have been abandoned along with the fairness  doctrine, and argued that further delay would be inappropriate.  When the FCC still failed to act, RTNDA filed a petition for a writ of mandamus with the court, and thereafter  the FCC solicited comments to update the record.4  The  court then denied the mandamus petition "without prejudice  to its renewal should the [FCC] fail to make significant  progress, within the next six months, toward the possible  repeal or modification of the personal attack and political  editorial rules."  Radio-Television News Directors Ass'n, No.  96-1338, 1997 WL 150084 (D.C. Cir. Feb. 7, 1997).


13
In August 1997, the FCC issued a public notice stating:


14
After extensive discussion and consideration of various alternatives, a majority of the Commission is unable atthis time to agree upon any resolution to the issues presented in this docket.  The Commissioners expect to issue statements setting forth their respective views on this matter.


15
Public Notice, 12 F.C.C.R. 11,956, 11,956 (Aug. 8, 1997).Commissioners Quello and Chong voted to repeal the rules,  while Chairman Hundt and Commissioner Ness voted for  further inquiry.  A second mandamus petition followed.  During the pendency of this second petition, the FCC issued a  second public notice announcing a deadlock among the newly  appointed commissioners.  See Public Notice, 13 F.C.C.R.  11,809 (May 8, 1998).  Chairman Kennard recused himself  from the proceeding, leaving a 2-2 split with Commissioners  Ness and Tristani favoring the status quo and Commissioners  Furchtgott-Roth and Powell favoring repeal.


16
In May 1998, the court held that the public notice announcing the deadlocked FCC vote constituted final agency action,  and that the commissioners voting against repeal were  obliged to submit a statement of reasons to the court in order  to facilitate judicial review.  See Radio-Television News Directors Ass'n, 1998 WL 388796.  Except as noted, the court  denied the mandamus petition.  Commissioners Ness and  Tristani submitted a joint statement explaining why they  would preserve the rules (hereinafter "the Joint Statement"), while Commissioners Powell and Furchtgott-Roth submitted  a joint dissenting statement.  See Public Notice, 13 F.C.C.R.  21,901 (June 22, 1998).

II.

17
Petitioners first contend that the Syracuse order of its own  force drags the political editorial and personal attack rules  down with the fairness doctrine to which they were moored.  Essentially, they maintain that the Syracuse order actually  rescinded the challenged rules, or, if not, that rescission  inexorably follows from the reasoning in Syracuse.5  Although the FCC disputes these contentions, it agrees that the  fairness doctrine is dead, and that the political editorial and  personal attack rules were initially derived, at least in part,  from the fairness doctrine.


18
The Syracuse order did not directly rescind the rules  challenged here.  Not only did the order expressly state that  it did not cover the rules, see Syracuse Peace Council, 2  F.C.C.R. at 5063 n.75, but subsequent orders have indicated  that the status of corollaries to the fairness doctrine is a  question for further review even after Syracuse.  See, e.g.,  Citizens for a Humane Kansas, 3 F.C.C.R. 718, 718 n.1  (1988).  We thus need not consider the extent to which an  order terminating an adjudication could repeal rules promulgated through notice and comment rulemaking.  Cf. American Fed'n of Gov't Employees Local 3090 v. Federal Labor  Relations Auth., 777 F.2d 751, 759 (D.C. Cir. 1985).


19
Nor, contrary to petitioners' contention, does the demise of  the fairness doctrine necessarily lead to the demise of the two  rules challenged here.  Although there is language indicating  that the FCC has viewed the two rules at issue to be part and  parcel of the fairness doctrine, see, e.g., Personal Attacks and  Political Editorials, 8 F.C.C.2d. at 722, the FCC's postSyracuse conduct is consistent with its statement in Syracuse that the rules had a life separate and apart from that  adjudication.  See Syracuse, 2 F.C.C.R. at 5063 n.75.  The  challenged rules are substantially narrower and more refined  than the fairness doctrine, which covered all public issues,  rather than a subset of attacks and editorials.  A broad rule  can be flawed for reasons that do not affect its narrower  adjuncts.  Thus, it could be theoretically consistent for the  FCC to have concluded that the public interest did not  require fairness to all views all of the time, but that fairness  to particular views in particular circumstances remained desirable.  The FCC's decision in Arkansas AFL-CIO, 7  F.C.C.R. 541, 541 (1992), aff'd, 11 F.3d 1430 (8th Cir. 1996) (in  banc)--ruling that the requirement for balanced coverage of  ballot issues collapsed in 1987 because it was "entirely derived from the fairness doctrine" and therefore governed by  Syracuse--is not, as petitioners suggest, dispositive;  the  FCC never codified a separate rule regarding ballot issues  and had historically treated ballot coverage requirements as  merely a particular incident of the fairness doctrine.  See,  e.g., Citizens to Tax Big Oil, 78 F.C.C.2d 473, 474 (1980).  In  short, while the challenged rules do not necessarily persist  after the fairness doctrine, they need not share its fate.


20
Petitioners' contrary theory relies on an untenably broad  understanding of what the "fairness doctrine" encompasses  and what is meant by its abrogation.  In petitioners' view,  new rules added to an existing doctrine become inseparable  from the doctrine and must share the doctrine's eventual fate.Yet, when an agency operates under a general standard such  as the fairness doctrine, explaining related rules within the  framework of the standard is reasonable, even if the new rule  is not entirely dependant on the standard or materially  modifies the preexisting regulatory environment.  Although  the order promulgating the political editorial and personal  attack rules notes that the rules do not "alter or add to the  substance of the [fairness] doctrine," see Personal Attacks  and Political Editorials, 8 F.C.C.2d 721, 722 (1967), its  reliance on the doctrine does not apply in reverse:  relying on  an obviously relevant doctrine does not mean that the FCC  could not or would not have acted had the doctrine not been available.  There may have been many reasons to adopt the  rules, but justifying them would have been redundant in light  of the fairness doctrine.  Petitioners therefore take too narrow a view of rulemaking when they contend that repeal of a  rule necessarily requires repeal of subsequent rules that  relied on the first rule.  Rather, rules may have more than  one foundation or justification, not all of which may be  apparent until a more prominent rationale is challenged, such  that repealing a rule that helped to justify a subsequent rule  casts doubt on the latter rule, but does not necessarily topple  it.  Under such circumstances, the agency should have an  opportunity to defend its evolving regulatory scheme rather  than face automatic judicial invalidation.


21
Accordingly, given the express notation in Syracuse and  what has transpired since then, petitioners fail to show that  abrogation of the fairness doctrine alone resolves the issues  presented in the instant case.  The FCC's prior opinions,  including Syracuse, are relevant to the extent that the FCC  cannot inexplicably act inconsistently with them, see, e.g.,  Sangre de Cristo Communications, Inc. v. FCC, 139 F.3d 953,  958 (D.C. Cir. 1998), but they must be applied by analogy and  explanation rather than bluntly as dispositive precedent.

III.

22
The question remains whether the rules can survive petitioners' challenge in light of the NPRM, the Fairness Report,  the Syracuse order, and petitioners' contention that changes  in the industry since 1967, including an expansion of communications outlets, undermine support for the rules.  See 5  U.S.C. § 706.  We first address two threshold issues, pertaining to the standard of review and the burden of persuasion,  and then examine the explanation in the Joint Statement to  determine whether retention of the rules is arbitrary and  capricious under 5 U.S.C. § 706(2)(A).

A.

23
First, petitioners contend that, unlike opinions accompanying most agency orders declining to adopt a proposed rule,  the reasoning in the Joint Statement does not warrant deference, as the FCC requests, because it does not reflect the  FCC's majority view.  Rather than review the Joint Statement under the familiar standards of the APA, see 5 U.S.C.  § 706, petitioners would have us subject the order to some  unspecified degree of more intense scrutiny.  The court's  1998 order on mandamus rejected the premise of petitioners'  contention, holding that a deadlocked vote on a proposal to  repeal a rule constitutes reviewable, final agency action in  support of the status quo.  See Radio-Television News Directors Ass'n, 1998 WL 388796.6  It follows that the court  must accord the Joint Statement the same respect normally  accorded agency decisions in rulemaking proceedings.  Petitioners' repeated refrain that the reviewable Joint Statement  is nevertheless not worthy of "deference" misses the point of  APA review.


24
Under petitioners' theory, neither of the two joint statements would be entitled to any deference.  The court would  therefore lack a framework to guide its review;  it would be  left to pick the position it favored most, in effect becoming a  phantom commissioner with power to break ties.  Such subjectivity would be inconsistent with the APA's limitation of  the court's role, succinctly put, to searching for faults within  an agency's reasoning rather than picking a contrary outcome  that it prefers over an otherwise permissible agency decision. See 5 U.S.C. § 706.  Petitioners' novel theory of deference  would also seemingly flout the Chenery doctrine, which limits  the court's review of an order to the rationales advanced by  an agency and would bar the free-form review that petitioners apparently seek.  See SEC v. Chenery Corp., 318 U.S. 80,  88 (1943).  Furthermore, petitioners' view overlooks the fact  that settled agency rules are entitled to a presumption of  validity such that failure to repeal them has some inherent  justification;  otherwise, regulatory schemes would be dangerously unstable.  See, e.g., Motor Vehicle Mfr. Ass'n v. State  Farm Mutual Auto. Ins. Co., 463 U.S. 29, 41-42 (1983).  If  the force of the two dissenting commissioners' views was  insufficient to sway their colleagues, there is no reason why the mere fact of the dissent should erase the presumption of  validity that the agency's order would normally receive.7


25
Second, we reject the FCC's contention that petitioners  bear the burden of explaining why the rules are not in the  public interest.  The FCC's attempt to minimize its burden  might be appropriate if petitioners were appealing from denial of a petition for a rulemaking to repeal an existing rule. See, e.g., American Horse Protection Ass'n v. Lyng, 812 F.2d  1, 4-5 (D.C. 1987).  But having initiated a rulemaking premised on the conclusion that the rules may not be in the public  interest and then rejected its own proposal to abrogate the  rules, the FCC bears a burden of explanation.  Cf. Geller v.  FCC, 610 F.2d 973, 979-80 (D.C. Cir. 1979).

B.

26
The FCC appears to acknowledge its duty to explain the  reasons for its action, noting in the Joint Statement that:


27
In the end, our task in this proceeding, just as it was in our review of the fairness doctrine, is to "make predictive and normative judgments" about the benefits and the burdens resulting from the two rules, and ultimately to determine whether the benefits outweigh the burdens. In our judgment this calculus leads us to a different result than the one reached by the prior Commission with respect to the fairness doctrine given the different considerations raised by the political editorial and personal attack rules.


28
Joint Statement at 24 (footnotes omitted).  Yet, to the extent  the FCC employed some sort of "calculus," its analysis in the  Joint Statement is opaque, relying on broad policy statements  to justify much narrower rules despite having recently rejected similar policies in a related context.  With only minor  modifications, the rationales discussed in the Joint Statement  could have been used, verbatim, to defend the fairness doctrine.  In short, the FCC's analysis in the Joint Statement  bears little relation to the FCC's present and past actions.


29
For the sake of argument, we will assume that the Joint  Statement correctly negates the charge that the rules chill  protected expression, impose undue administrative burdens  on broadcasters, and have been rendered obsolete by the  proliferation of new media technologies and outlets.  Even so,  the rules to some degree interfere with the editorial judgment  of professional journalists and entangle the government in  day-to-day operations of the media.  The Supreme Court and  the FCC have noted that both effects are cause for concern,  though not fatal in moderation.  See Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639-40 (1998);  FCC  v. League of Women Voters, 468 U.S. 364, 378 (1984);  CBS v.  Democratic Nat'l Comm., 412 U.S. 94, 110 (1973);  see also  Syracuse Peace Council, 2 F.C.C.R. at 5051-52;  NPRM, 48  Fed. Reg. at 28298;  Fairness Report, 102 F.C.C.R. at 19092.8  Because the FCC is bound to regulate in the public interest, see 47 U.S.C. §§ 307(a), 309(a) (1994), it must explain  why the public would benefit from rules that raise these  policy and constitutional doubts;  yet the Joint Statement fails  to present an adequate basis upon which to affirm retention  of the rules and dispel concerns previously raised by the FCC  itself.  Although the Joint Statement recites that the rules  "serve as important components of a broadcaster's public  interest obligations," Joint Statement at 2, it does not persuasively explain, in light of FCC precedent, why this is so or  why less intrusive alternatives would be less desirable.


30
The first theory offered in the Joint Statement is that the  "rules serve the public interest by helping to ensure that the  same audience that heard the broadcast of an endorsement or  personal attack be accessible to the individual concerned."Id.  The theory relies on an unstated premise that the public  has a clear interest in hearing both sides of each issue on  which a broadcaster elects to focus.  The premise is no doubt  sound.  But, in abrogating the fairness doctrine, the FCC  rejected the notion that this interest automatically justifies  government intervention in the editorial processes of broadcasters.  See Syracuse Peace Council, 2 F.C.C.R. at 5050-52.The rules therefore make sense only if there is a special  interest, greater than the general interest addressed by the  now-discarded fairness doctrine, in hearing responses to political editorials or personal attacks.  The Joint Statement  offers no such explanation.  Although repeal of the fairness  doctrine could in theory have left the challenged rules intact,  the Joint Statement never presents a plausible explanation  why political editorials and personal attacks are sufficiently  meaningful to warrant regulation when other kinds of topics,  editorials, and attacks do not.  The FCC generally need not  explain why it has declined to regulate something in order to  justify a particular rule, but having expressly decided to  repeal broad rules, it must explain why retaining similar  (albeit narrower) rules is appropriate.


31
Second, the Joint Statement justifies retention of the rules  for "precisely the same reasons" as the Supreme Court noted in Red Lion.  Joint Statement at 4.  According to the Joint  Statement, these reasons were that, absent the rules, "station  owners and a few networks would have unfettered power to  make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they  agreed."  Id. (quoting Red Lion, 395 U.S. at 392).


32
The quoted language from Red Lion appears in the Court's  consideration of whether the political editorial and personal  attack rules were "inconsistent with the First Amendment  goal of producing an informed public capable of conducting its  own affairs."  395 U.S. at 392.  The Court concluded that  there was no inconsistency.  It did not purport, however, to  hold that the rules would always be in the public interest. The mere fact that a rule is not unconstitutional does not  therefore mean that its perpetuation is not arbitrary and  capricious.  Accordingly, the Joint Statement is flawed to the  extent that it relies on a thirty-year-old conclusion that the  challenged rules survive First Amendment scrutiny to justify  the decision not to repeal them in the face of modern challenges to the rules' consistency with the FCC's regulatory  mandate.


33
Moreover, the Joint Statement's quotation from Red Lion  rings hollow in view of the FCC's repeal of the fairness  doctrine.  Licensees now have greater opportunities to "make  time available only to the highest bidders, ... communicate  only their own views on public issues, people and candidates,  and ... permit on the air only those with whom they  agree[ ]."  Id.  The caveat is that they must be careful not to  editorialize about candidates and not to allow personal attacks.  Such artful evasion of a duty to provide balanced  programming would have been far less possible when the  fairness doctrine supplemented the rules challenged here, but  is easier to accomplish today.  It is therefore difficult to  conceive how retention of the rules can be for "precisely" the  reasons noted in Red Lion when those reasons were offered  for a different purpose and in the context of a now defunct  regulatory regime.


34
Third, the Joint Statement notes that the "scarcity of  broadcast frequencies provides a rationale for imposing public  interest obligations on broadcasters."  Joint Statement at 9.Even accepting the factual premise of this statement, it  provides no support for the specific rules under review.  The  mere fact that the FCC has the power to regulate broadcasters more intensely than other media does not also mean that  it may impose any obligation it sees fit.  Each regulation  must be in the "public interest," 47 U.S.C. §§ 307(a), 309(a),  and none can be "arbitrary" or "capricious."  5 U.S.C.  § 706(2)(A).  The scarcity rationale does not address either  limit on the FCC's discretion.9


35
Fourth, the Joint Statement attempts to justify the challenged rules by reference to its authority under the equal  time doctrine, which provides that "[i]f any licensee shall  permit any person who is a legally qualified candidate for any  public office to use a broadcasting station, he [or she] shall  afford equal opportunities to all other such candidates for  that office in the use of such broadcasting station."  47 U.S.C.  § 315(a) (1994);  see also 47 U.S.C. § 312(a)(7) (1994).  According to the Joint Statement, the challenged rules "complement" the "policies" underlying § 315(a).10  Joint Statement at 11.  Yet the equal time doctrine does not compel either the  political editorial or personal attack rules.  Both rules apply  when the licensee itself distributes proscribed content, while  the statute contemplates situations where the licensee allows  a candidate use of the station's facilities.  Moreover, the  personal attack rule applies to all attacks, not just attacks on  candidates.  Thus, the challenged rules are substantially  broader than the equal time doctrine.  This breadth does not  invalidate the rules, but it lessens the persuasive force of the  Joint Statement's reliance on the statute to justify its decision.11  This is particularly so because the Joint Statement  ignores the fact that the fairness doctrine also complemented  § 315(a), illustrating the point that mere consistency with a  statute does not justify a regulation;  a statutory policy can be  implemented in numerous ways, but the agency is limitedto  solutions that are not arbitrary and capricious.12


36
Fifth, the Joint Statement explains that the political editorial rule:


37
is intended to provide citizens with the information necessary to enable them to exercise their vote in a more responsible and informed manner.  In such respects, we believe that this particular rule goes to the very heart of our democratic electoral process.


38
Joint Statement at 10.  Few would disagree with the idea  that vibrant debate is good for democracy, but that alone  cannot explain why editorials about candidates justify federal  intervention when other types of editorials or non-editorial  programming does not.  The Joint Statement's rationale  would justify numerous salutary regulations--including the  fairness doctrine--but it offers no explanation for the FCC's  choice to impose the ones at issue here.  Moreover, the Joint  Statement's reasoning fails to address the concern raised in  the NPRM that nothing inherent in the nature of an editorial  necessitates countervailing speech to ensure balanced debate. See 48 Fed. Reg. at 28,300.  Many programming decisions  add to and detract from the balance within the marketplace of  ideas without regulatory consequence, but the Joint Statement never explains why editorials warrant special treatment.


39
There may be good reasons to focus on political editorials. If broadcasters want to use public resources overtly to push a  private agenda by advocating a result in an election, a right of  reply might be a minimally intrusive means of countering a  licensee's government-granted monopoly on access to the  resource.  The same could be said, however, to defend rights  of reply on many issues of public concern.13  Yet the FCC has  emphatically rejected such a broad regulatory regime.  It  therefore falls on the FCC to explain why editorials about  candidates are particularly appropriate subjects for regulation.


40
Finally, the Joint Statement justifies the personal attack  rule by noting that the airwaves should not be a "platform for  attacks on personal character," Joint Statement at 17, that  the rule is targeted to provide a limited right of reply to the same audience that heard the attack, see id. at 18, and that  the FCC only enforces the rule when a licensee acts in "bad  faith," id.14  This defense of the rule may be appealing-personal attacks can be distasteful and detract from reasoned  discourse--but it fails to make a sustainable case for the rule. Most troubling is the fact that the Joint Statement ignores  the concerns that the FCC raised in the NPRM about the  rule's utility.  The NPRM notes that newspapers are not  bound by a similar right of reply and yet no serious consequences seem to have ensued, that at least some victims  (those who are public figures) of personal attacks have sufficient access to broadcast media that a right-of-reply requirement is unnecessary, that the rule does not apply to newscasts and yet its inapplicability does not seem to have led to  the problems that the rule is designed to address, that the  rationale for applying the rule to non-news programming was  even less sound than applying it to newscasts, and that the  FCC lacked any "evidence that personal attacks are inherently more persuasive than other [types of] arguments."NPRM, 48 Fed. Reg. at 28,298-99.  There may be valid  responses to each of these concerns, but the Joint Statement's  conclusory assertion that the rule is a necessary prerequisite  for balanced debate on public issues is insufficient to allay the  doubts that the FCC itself previously raised.  Indeed, having  in the past conceded that it lacked "evidence" that the rule  was necessary, the FCC at a minimum should point to  evidence to support the rule or explain why none is needed.15


41
As with the political editorial rule, there may be sound  reasons to regulate personal attacks.  The problem here,  however, is that whether viewed individually or as a whole,  the explanations in the Joint Statement do not articulate  them.

C.

42
The foregoing deficiencies in the FCC's analysis render its  present explanation of its decision to retain the rules insufficient to permit judicial review.


43
First, the Joint Statement does not consider "the relevant  factors" and therefore does not satisfy the FCC's obligation  to explain the reason for its decision.  Citizens to Preserve  Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971);  see also  FEC v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986).  After  1987, the instant rulemaking proceeding should have involved  distinguishing political editorials and personal attacks, which  are regulated, from subjects formerly covered by the fairness  doctrine but that have been deregulated, such as non-editorial  political commentary, editorials on political issues aside from  candidate endorsements, and non-personal attacks.  The FCC  is mostly silent on this salient question, choosing in the Joint  Statement to rebut specific attacks against the rules rather  than articulating a rationale to justify the rules in the first  instance.  In other cases in which an agency suggests repealing a rule and then elects not to do so, the agency might be  able to rely on the rationale it articulated when it first  adopted the rule, and devote subsequent orders to defending  the rule from attack.  Here, however, the original rationale  for the challenged rules--the fairness doctrine--has been  abrogated, and the NPRM initiating the present proceeding  acknowledged that the justification for the rules required an  "especially searching" reexamination.  48 Fed. Reg. at 28,298.  Under these circumstances, an order declining to repeal a  rule must justify the rule despite the fact that the rule was  justified when initially promulgated.


44
Second, the FCC's explanation for retention of the rules is  inconsistent with prior FCC actions that set a very high  standard for the deliberations presently under review.  The  NPRM stated:


45
it is evident that our reexamination of the public interest justification for the personal attack and political editorial rules must be especially searching.  Even as a general matter the [Communications] Act requires the Commission to refrain from interfering with licensees' editorial judgements unless such action clearly is required in order to further the Congressional objectives of balanced coverage of public issues.... But where, as here, the rules go beyond general fairness doctrine obligations to impose specific rights [on] broadcast facilities, the statute requires us to proceed with particular caution.


46
48 Fed. Reg. at 28,298.  Likewise, the FCC stated that "we  are led to question the public interest justification for the  [political editorial] rule," id. at 28,299, and imposed upon itself  "a particularly heavy burden ... to justify its application."Id. at 28,300.  Having framed the present rulemaking proceeding in terms of providing a persuasive rationale for a rule  that seemed unnecessary, and having retained that framework, the FCC could not simply assume in the Joint Statement a need for the rule and focus on rebutting specific  attacks levied against it.16  Cf. Geller, 610 F.2d at 979-80.Such review is hardly "especially searching."


47
The Joint Statement also does not reflect the significance  of the FCC's order in Syracuse, as well as the Fairness  Report on which that order was based.  Although abrogation  of the fairness doctrine does not require repeal of the political  editorial and personal attack rules, it does establish an agency  precedent for declining to use the FCC's power to redress a  market failure in provision of balanced coverage of important  issues.  The exercise of such power may be appropriate in the  instant case, but the agency must offer clear, cogent explanations for treating the two cases differently.  It is not enough  to note that one case is narrower than the other;  there must  be a reason why the more focused nature of the present rules  shields them from the myriad defects that the FCC recognized in Syracuse.  See Greater Boston Television Corp. v.  FCC, 444 F.2d 841, 852 (D.C. Cir. 1970).  A well-reasoned,  carefully documented order affirming the challenged rules  could in theory have survived notwithstanding the FCC's  vacillation, delay, and deadlock.  But these factors counsel  against affirming the rules on the highly general foundation  provided in the Joint Statement in light of the FCC's prior  actions questioning that foundation.  Cf. Meredith Corp. v.  FCC, 809 F.2d 863, 873 (D.C. Cir. 1987) ("An agency is not  required to reconsider the merits of a rule each time it seeks  to apply it....  Here, however, the Commission itself has  already largely undermined the legitimacy of its own rule").


48
Finally, the Joint Statement recognizes that the current  rules are broader than their rationales suggest, attempting to  justify the rules with explanations that do not correspond  with the rules' breadth, and failing to address whether narrower rules would serve the FCC's purposes.  For example,  the Joint Statement notes that scarcity in local markets  justifies a targeted right of reply to local audiences without  explaining why this rationale justifies a right of reply for  national figures.17  See Joint Statement at 23.  Likewise, the Joint Statement frames its discussion of the personal attack  rule in terms of the need for individual public officials to  salvage their credibility, see id. at 17-18, yet the rule applies  to personal attacks against all persons and groups, not just  government officials.  Normally, the FCC need not refute all  alternative solutions to the problems it addresses in rulemakings so long as its own solution is "not irrational," Loyola  Univ. v. FCC, 670 F.2d 1222, 1227 (D.C. Cir. 1982), but having  highlighted the apparently excessive breadth of its rules, and  indicated a receptiveness to narrowing the rules, the FCC  was obliged to explain in the Joint Statement why the rules  were nevertheless desirable without modification.18


49
Consequently, as a matter of administrative law, the court  cannot affirm the FCC's order.  Neither, however, is the  court in a position to hold on this record that the challenged  rules are inconsistent with the public interest or the First  Amendment.  The FCC's failure to address relevant factors,  distinguish applicable precedents, and explain the scope of its  rules despite acknowledging that the rules might be too broad  renders meaningful judicial review impossible because the  court lacks a coherent rationale against which to weigh  petitioners' factual, policy, and constitutional claims.  Petitioners' claims each require the court to balance the rationale  for the rules against their consequences.19  In theory, balancing could be avoided if the rules so obviously entailed no ill  effects that they would survive even if only marginally useful. That, however, is not the case, as illustrated in the NPRM  and the Fairness Report.  Even were the court to assume  that some of petitioners' arguments are overstated,20 the  challenged rules by their nature interfere with at least some  journalistic judgment, chill at least some speech, and impose  at least some burdens on activities at the heart of the First  Amendment.  Because the court must weigh the rules' benefits against their burdens, the inadequacy of the explanation  in the Joint Statement is apparent.  Wooden application of  principles underlying rhetoric about the FCC's vast power, its  broad discretion, and the importance of vibrant debate in  democracy to a specific set of rules would force the court to  adopt an impressionistic approach that would disserve the  parties and muddle the First Amendment analysis.  The FCC  must therefore explain its rationale for these rules in more  detail, thereby permitting the court to test that rationale  against petitioners' factual assertions and, if necessary, the  demands of the First Amendment.

IV.

50
As explained in Part II, there is nothing inherently inconsistent about preserving the two challenged rules despite  abrogation of the fairness doctrine.  Although the arguments  that the FCC found persuasive in Syracuse and the Fairness  Report apply on their face to the two challenged rules,  petitioners have not explained why the FCC would be incapable, within the bounds of its discretion and expertise, of  distinguishing the present context from what it confronted in  Syracuse.  Although we hold that the FCC adopted far too sanguine a view of its burden of persuasion, and relied in part  on overly broad arguments that appear to ignore its prior  analysis of the challenged rules and of the fairness doctrine,  the inadequacy of the FCC's order precludes meaningful  judicial review of petitioners' claims that the rules on the  merits cannot survive;  we therefore do not reach such claims.


51
There is a fine line between agency reasoning that is "so  crippled as to be unlawful" and action that is potentially  lawful but insufficiently or inappropriately explained.  Checkosky v. SEC, 23 F.3d 452, 464 (D.C. Cir. 1994) (opinion of  Silberman, J.).  In the former circumstance, the court's practice is to vacate the agency's order, while in the later the  court frequently remands for further explanation (including  discussion of relevant factors and precedents) while withholding judgment on the lawfulness of the agency's proposed  action.  See id. at 463-64;  International Union, United Mine  Workers of America v. Federal Mine Safety & Health Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990).21  Remand is  generally appropriate when "there is at least a serious possibility that the [agency] will be able to substantiate its decision" given an opportunity to do so, and when vacating would  be "disruptive."  Allied-Signal, Inc. v. United States Nuclear  Regulatory Comm'n, 988 F.2d 146, 151 (D.C. Cir. 1993).


52
Here, two commissioners and some commentators, including intervenors and amici,22 maintain that the rules continue to serve an important purpose, and the FCC may uphold  them again once it conforms its analysis to the principles  discussed in Part III.  Whether the newly-defended rules  would survive judicial review is an open question, but is  sufficiently possible to justify remand rather than a more  severe remedy.  The delay and deadlock in this case may  militate in favor of final resolution now, see Checkosky v.  SEC, 139 F.3d 221, 226 (D.C. Cir. 1998), but because the rules  have been in force for more than thirty years, the more  prudent course is to leave the present regulatory regime in  effect and order the FCC to provide a more detailed defense--and possibly modifications as well--sufficient to permit meaningful judicial review.  The FCC retains discretion  to commence a new rulemaking, or to reopen the record, to  ensure that it fully accounts for relevant factual and legal  developments since 1983, cf. United Mine Workers v. Dole,  870 F.2d 662, 674 (D.C. Cir. 1989), but is not compelled to do  so.23  In any event, the FCC on remand must address at least  the concerns it raised in its NPRM, the Fairness Report, and  the Syracuse order, and must supplement its analysis with  record evidence showing a fit between its policy preferences  and the actual communications market in which the rules  operate.


53
Accordingly, we grant the petitions for review and remand  the case to afford the FCC an opportunity to provide an adequate justification for retaining the personal attack and  political editorial rules, and for such proceedings as the FCC  may determine are appropriate to implement this mandate. Given its prior delay in this proceeding, the FCC need act  expeditiously. See United Mine Workers, 920 F.2d at 967.



Notes:


1
  Petitioners are the Radio-Television News Directors Association ("RTNDA"), the National Association of Broadcasters ("NAB"),  and the Freedom of Expression Foundation, Inc ("FEF").


2
  Specifically, the political editorial rule provides, in part, that:
[w]here a licensee, in an editorial ... [e]ndorses or ... [o]ppos-es a legally qualified candidate[,] ... the licensee shall, with[in]24 hours after the editorial, transmit to [the endorsed oropposed candidate] ... (A) [n]otification of the date and thetime of the editorial, (B) [a] script or tape of the editorial and(C) [a]n offer of reasonable opportunity for the candidate or aspokesman of the candidate to respond over the licensee'sfacilities.47 C.F.R. § 73.1930(a).


3
  Although Red Lion has been "the subject of intense criticism," it is still binding precedent.  Time Warner Entertainment  Co. v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (Williams, J.,  joined by Edwards, C.J., and Silberman, Ginsburg, and Sentelle,  JJ., dissenting from denial of rehearing in banc);  see also Branch v.  FCC, 824 F.2d 37, 49-50 (D.C. Cir. 1987).


4
  The FCC concedes in its brief that its "attention was drawn to  [the pending] matter by" the mandamus petition.


5
  The dissenting commissioners take the same approach.  See  Joint Statement of Commissioners Powell and Furchtgott-Roth at  5-10.


6
  This holding is law of the case.  See LaShawn v. Barry, 87  F.3d 1389, 1393 (D.C. Cir. 1996) (in banc).


7
  Petitioners RTNDA and NAB cite Oil, Chemical & Atomic  Workers Int'l Union v. NLRB, 46 F.3d 82, 92 (D.C. Cir. 1995), for  the proposition that a theory endorsed by only 2 of 4 commissioners  does not warrant deference.  However, in that case a fractured  board developed distinct rationales for its decision interpreting and  applying the Labor Management Relations Act, and the court  therefore could not discern the policy that it was being asked to  review.  See id. at 85.  Here, the policy under review is clearly  discernable and operates of its own force until repealed.  Moreover,  the remedy in Oil, Chemical & Atomic Workers was a remand to  establish a consensus, not de novo review.  Id. at 92.  A remand in  the instant case to force consensus would be pointless given the  docket's lengthy history and the commissioners' diametrically opposed positions.
RTNDA and NAB also note that because the FCC concedes that  the order is not binding precedent in future FCC cases, it likewise  should not be entitled to deference by the court.  This argument  again misses the point of APA deference.  In any event, there is no  inconsistency from the perspective of the court between permitting  the FCC to supplant rules achieved by deadlock with majority rules  and respecting the FCC's work-product, whether the result of  deadlock or majority vote.


8
  Outside the broadcast context, a regulation requiring a media  outlet to provide a right of reply to victims of personal or political attacks would face more severe First Amendment constraints.  See  Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256-58 (1974).


9
  For the same reasons, the FCC cannot rely solely on the fact  that broadcasters are "trustees of the nation's airwaves," Joint  Statement at 14, even though a trustee has less cause to complain  about onerous burdens placed upon it than would an operator of a  purely private enterprise.  Although the "trustee" theory--which  derives from the government's granting of private property rights  in public resources--is distinct from theories premised on the  scarcity of broadcast spectrum, and may independently justify  regulation and reduced First Amendment scrutiny, cf. Time Warner  Entertainment Co., 105 F.3d at 724 (Williams J., joined by Edwards, C.J., and Silberman, Ginsburg, and Sentelle, JJ., dissenting  from denial of rehearing in banc);  CBS Inc. v. FCC, 453 U.S. 367,  394-97 (1981), simply reciting that fact cannot justify a particular  burden that the FCC imposes.


10
  The FCC has developed a related rule that governs cases in  which a candidate's supporters, rather than the candidate herself,  appear on a station.  See Nicholas Zapple, 23 F.C.C.2d 707 (1970).


11
  Contrary to the FCC's view in its brief, Red Lion cannot  plausibly be read to hold that the statute shields these rules from  repeal.  In Red Lion, the Supreme Court noted that:
When a broadcaster grants time to a political candidate, Con-gress itself requires that equal time be offered to his oppo-nents.  It would exceed our competence to hold that theCommission is unauthorized by the statute to employ a similardevice where personal attacks or political editorials are broad-cast by a radio or television station.395 U.S. at 385.  This analysis states only that if the political  editorial and personal attack rules are otherwise sound exercises of  agency discretion, the statute poses no obstacle to their adoption.


12
  Having rejected the significance of the equal time doctrine,  we need not consider petitioners' various contentions that the  FCC's reliance on the doctrine comes too late and with insufficient  notice.


13
  For example, the FCC would permit a network to editorialize  about tax policy, but would constrain a network's discretion to  endorse a particular candidate based on her views about tax policy. Likewise, a network has more freedom to endorse a ballot initiative  than to endorse a candidate championing such an initiative.  The  FCC has not articulated a basis for the distinction.


14
  The FCC does not rely on the claim, questioned in its  NPRM, that the personal attack rule in and of itself fosters  discussion of controversial issues.  See NPRM, 48 Fed. Reg. at  28,298.  The focus now seems to be on addressing the merits of the  attack--which the FCC sees as a prerequisite to meaningful debate  on substantive topics--rather than on using the reply as a forum for  discussion of public policy.  See Joint Statement at 18-19.


15
  In defending the personal attack rule, the Joint Statement  notes that "once an individual's credibility is attacked, little credence will be given to his or her views on public issues."  Joint  Statement at 18.  Absent record support, this conclusory statement  is compelling only if one presumes that audiences are less likely to think critically about personal attacks than other forms of commentary and that they focus extensively on the personal peccadillos of  public figures.  Neither proposition is obvious.  Standing alone,  without any elaboration, quantification, or tailoring to the specific  rule at issue, it cannot justify a regulation requiring a right of reply.


16
  The NPRM does not bind the FCC, which is free to adopt a  contrary position after consideration of public comments.  See  Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 845  (1986).  However, the NPRM frames the rulemaking proceeding,  such that failure to consider the concerns that animated the rulemaking casts doubt on the reasonableness of the agency's decisionmaking process.  Cf. Natural Resources Defense Council, Inc. v.  SEC, 606 F.2d 1031, 1049 n.23 (D.C. Cir. 1979).


17
  For example, the fact that a national news network rarely  covers local state assembly races may explain why a right of reply  is necessary on a local network affiliate for a state assembly  candidate maligned by that affiliate, but it does not follow that the  local affiliate must also be the venue for a right of reply involving a  presidential candidate.


18
  The Joint Statement expressly states that modification of the  rules would be appropriate to align more closely regulatory burdens  with regulatory purposes.  See Joint Statement at 1, 15-16, 20.The record does not indicate that the FCC has taken any steps  toward that end.


19
  The First Amendment "requires a critical examination of the  interests of the public and broadcasters in light of the particular  circumstances of each case."  League of Women Voters, 468 U.S. at  381.  Although Red Lion affirmed the rules challenged here, the  Court recognized that changed circumstances might be salient in  future cases.  See Red Lion, 395 U.S. at 393.  Also, the Court since  Red Lion has increasingly focused on the editorial discretion of  broadcasters, see, e.g., Arkansas Educational Television Comm'n,  118 S. Ct. at 1639, indicating that while the Red Lion framework  may still be good law, its application to the instant rules may  require updating.  See also Fairness Report, 102 F.C.C.2d at 156  (critiquing the scarcity rationale).


20
  We note that while the Joint Statement expressly rejects a  1982 survey cited by petitioners that relied on old and possibly  flawed data to show a chilling effect on editorializing, the FCC  offered no updated or more credible information to the contrary. Joint Statement at 14.


21
  Unlike in the cited cases, petitioners here request that the  court do more than set aside the order under review (which would  leave the status quo intact), contending that the court should "direct  the Commission" to "eliminate" or "repeal" the personal attack and  political editorial rules.  Because the court remands, we need not  address the full scope of our remedial authority in cases where an  agency order in a rulemaking initiated to consider repealing or  modifying an existing rule fails to justify the rule.


22
  See briefs filed by the Media Access Project on behalf of  intervenors--the Office of Communication, Inc., of the United Church of Christ, the Center for Media Education, the Washington  Area Citizens' Coalition Interested in Viewers' Constitutional  Rights, Peggy Charren, and Henry Geller--and by amicus curiae  Safe Energy Communication Council.  The briefs emphasize the  rule's early origins, the viability of a scarcity rationale, and the  importance of the rules to assure balanced coverage of local election  issues.


23
  A new rulemaking, accomplished expeditiously, would permit  the FCC to work from a relatively clean procedural slate, consider  modern factual and legal developments, and obtain comments on  specific proposals to modify the rules.  In practice, this might be  the preferred way to create a record capable of rebutting petitioners' attacks, but we leave to the FCC the decision of how to proceed  on remand.


