 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.
