 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 19, 2013           Decided November 15, 2013

                         No. 12-1367

           NEWSPAPER ASSOCIATION OF AMERICA,
                      PETITIONER

                               v.

             POSTAL REGULATORY COMMISSION,
                      RESPONDENT

      NATIONAL NEWSPAPER ASSOCIATION, INC., ET AL.,
                    INTERVENORS


              On Petition for Review of an Order
             of the Postal Regulatory Commission


    Robert A. Long Jr. argued the cause for petitioner
Newspaper Association of America. With him on the briefs
were Mark W. Mosier and Matthew J. Berns. Kurt A. Wimmer
entered an appearance.

    Steven C. Douse argued the cause for intervenors National
Newspaper Association, Inc. et al. in support of petitioner. With
him on the briefs were William J. Olson, Herbert W. Titus, John
S. Miles, and Tonda F. Rush.
                               2

    Barbara Camens was on the brief for amicus curiae
Newspaper Guild-CWA in support of petitioner Newspaper
Association of America.

     Jeffrey Clair, Attorney, U.S. Department of Justice, argued
the cause for respondent. With him on the brief were Stuart F.
Delery, Acting Assistant Attorney General, Michael S. Raab,
Attorney, Stephen L. Sharfman, General Counsel, Postal
Regulatory Commission, and R. Brian Corcoran, Deputy
General Counsel.

      Morgan E. Rehrig, Attorney, United States Postal Service,
argued the cause for intervenors United States Postal Service, et
al. in support of respondent. With her on the brief were Stephan
J. Boardman and Thomas W. McLaughlin.

   Before: HENDERSON and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

     RANDOLPH, Senior Circuit Judge: In August 2012, the
Postal Regulatory Commission issued an order approving a
negotiated service agreement for the sale of postage between the
United States Postal Service and Valassis Direct Mail, Inc., a
national marketing company. Under the agreement, Valassis
receives discounted postage for some of its advertisement
mailers once its mail volume hits a predetermined threshold.
Petitioner Newspaper Association of America, with the support
of three intervenors, challenges the Commission’s order
approving the deal.
                                 3

                                  I

     The Postal Service is empowered to set “reasonable and
equitable” postal “rates” subject to the approval of the Postal
Regulatory Commission. See 39 U.S.C. §§ 404(b), 3622(a),
(d)(1). “Rates” include not only those for the familiar first-class
and priority mail, but also “negotiated service agreements,” that
is, contracts between the Postal Service and individual mailers
for customized—and generally discounted—rates of postage.
See 39 C.F.R. §§ 3001.5(r), 3010.6.

      The statutory system governing rates depends on whether
the rate is for a “market-dominant” or a “competitive” service.
39 U.S.C. § 3642(b). A service is “market-dominant” if either
(1) the Postal Service has achieved a level of market power in
providing that service that would allow it to raise prices without
losing “a significant level of business,” id. § 3642(b)(1), or (2) it
is a service covered by the statutory postal monopoly, id.
§ 3642(b)(2). Because the negotiated service agreement in this
case is for the purchase of standard mail products, it is subject
to the postal monopoly, see 18 U.S.C. § 1696(a); 39 C.F.R.
§ 310.2(a), and thus the rules governing rates for market-
dominant products apply.

     In reviewing rates for market-dominant products, the
Commission must consider the statutory factors set out in 39
U.S.C. § 3622(c). That subsection establishes rate requirements
for all market-dominant products, see id. § 3622(c)(1)–(9) &
(11)–(14), as well as particular requirements for negotiated
agreements, see id. § 3622(c)(10).

      As relevant here, a negotiated service agreement must meet
the following requirements: (1) it must improve the net
financial position of the Postal Service, id. § 3622(c)(10)(A)(i);
(2) it may not cause “unreasonable harm to the marketplace,” id.
                                  4

§ 3622(c)(10)(B); (3) it must be “available on public and
reasonable terms to similarly situated mailers,” id. § 3622(c)(10);
(4) it must comport with “the policies of [Title 39],” id.; and (5)
the Commission, before approving the agreement, must give
“due regard” to its impact on “small business concerns,” id.
§ 3642(b)(3)(C).1

     Once the Postal Service has negotiated terms with a
particular mailer, it must notify the public and the Commission
of its intention to implement a rate adjustment. 39 C.F.R.
§ 3010.41. The Commission then initiates proceedings to
determine whether the agreement complies with the statutory
requirements. Id. § 3010.44. Comments from the Postal
Service, its partner in the deal, and the public are welcome. See
id. If the agreement is lawful, the Commission issues an order
and the agreement may take effect. Id.

     The Postal Service proposed the negotiated service
agreement in this case in April 2012, and the public proceeding
commenced that May. The structure of the Agreement is fairly
simple. For three years, Valassis agrees to maintain its current
levels of “standard mail saturation flats”—that is, advertising
circulars delivered to at least 75 percent of potential addresses
on a standard mail carrier route. In return, the Postal Service
offers Valassis a discount on new mailing programs of that same
type initiated in excess of current levels. The discount is limited
in a few ways. It applies only to mailings carrying
advertisements for retailers that deal in durable and semi-
durable goods and that have a physical retail presence in 30 or
more states. It also applies only to new mailing programs
initiated in markets in which Valassis has an existing program.
And the discount on that new program remains in force only if


     1
       Additional statutory requirements not relevant here apply to the
setting of all rates. See, e.g., 39 U.S.C. §§ 403(c), 404a(a)(1).
                                   5

the corresponding existing program continues to operate at or
above current levels.

     The Commission received dozens of submissions from,
among others, individual newspapers, two U.S. Senators,
petitioner Newspaper Association of America, intervenor
National Newspaper Association, and intervenors Valpak Direct
Marketing Systems and Valpak Dealers Association
(collectively, “Valpak”). The comments were overwhelmingly
against the Agreement and, taken together, argued that the
Agreement failed to satisfy any of the statutory criteria
discussed above. The Commission disagreed and issued its final
order approving the Agreement on August 23, 2012.2 It denied
a motion to stay the order one week later. This petition for
judicial review followed.

                                   II

    Intervenors Valpak and the National Newspaper
Association argue that the Agreement was not properly before
the Commission because the Governors of the Postal System
never approved it. This, they say, rendered the Commission’s
order void.

     Establishing new rates, which includes proposing negotiated
service agreements, is the job of the Governors of the Postal
Service. 39 U.S.C. § 404(b). The Governors are appointed by
the President, confirmed by the Senate, and constitute nine of
the eleven members of the “Board of Governors.” Id. § 202.
The Board of Governors comprises the nine Governors plus the



     2
        For the full order, see Valassis Direct Mail, Inc., Dkt. MC2012-
14 (Postal Regulatory Comm’n Aug. 23, 2012) (order), available at
http://www.prc.gov/Docs/85/85014/Order_No_1448.pdf.
                                 6

Postmaster General and the Deputy Postmaster General.3 And
the two bodies—the nine Governors as distinguished from the
full Board—have independent statutory responsibilities. While
the Board exercises the general “power of the Postal Service,”4
39 U.S.C. § 202(a)(1), only the Governors are specifically
authorized to “establish . . . equitable rates of postage.” Id.
§ 404(b).

     “Except for those powers, duties, or obligations specifically
vested in the Governors, as distinguished from the Board of
Governors, the Board may delegate the authority vested in it . . ..”
Id. § 402. In other words, while the Board may delegate its
duties, the Governors may not. And since “rates of postage”
includes negotiated service agreements, § 402 means that the
Governors cannot delegate the job of executing such agreements
and bringing them before the Commission—which is what the
intervenors claim the Governors did here.

     The intervenors’ claim rests on the Governors’ Resolution
11-4, signed in March 2011. The Resolution authorizes Postal
Service “management” to negotiate service agreements with
postal customers and propose those agreements to the Postal
Regulatory Commission. The Resolution declares all rates
proposed under it “hereby established” in advance, provided the
rates comply with the statutory requirements—and the

     3
       The Governors appoint the Postmaster General, 39 U.S.C.
§ 202(c), and the Governors together with the Postmaster General
appoint the Deputy, id. § 202(d). So the Postmaster General and his
Deputy, although members of the Board of Governors, are not
Governors.
     4
       This power includes, among many other things, the power to
establish post offices; investigate postal crimes; and prescribe the
details of mail collection, handling, delivery, forwarding and
returning. See 39 U.S.C. § 404(a)(1)–(8).
                                7

Resolution instructs the Postal Service’s chief financial officer
to ensure that they do. Furthermore, it instructs management to
provide the Governors with quarterly “report[s]” on new
initiatives and to “furnish . . . information . . . regarding any
significant, new program, policy, major modification, or
initiative.” On its face the Resolution does not seem to require
the Governors to approve each new rate.

     In April 2012, citing Resolution 11-4, Postal Service
management submitted the Agreement to the Postal Regulatory
Commission. In response, Valpak submitted comments to the
Commission arguing that the Agreement was the result of an
unlawful delegation by the Governors. It claimed that
Resolution 11-4, by allowing Postal Service management to
negotiate service agreements, delegates the Governors’ statutory
responsibility to set rates in violation of 39 U.S.C. § 402. Thus,
according to Valpak, the Agreement was not properly before the
Commission. The Postal Service replied that, notwithstanding
Resolution 11-4, the Governors had in fact approved the
Agreement before it was submitted. In this court, the
intervenors once again raised the argument challenging
Resolution 11-4, and the Postal Service reasserted that the
Agreement had been pre-approved.

    There is no reason for us to decide whether Resolution 11-4
unlawfully delegates authority to the Postal Service. According
to the Postal Service, the Governors in fact reviewed and
approved the Agreement before it was submitted to the
Commission. That assertion was not challenged in the
                                  8

administrative proceeding, and we understand the Commission
to have accepted it as fact.5 The intervenors challenge it for the
first time in their reply brief to this court, but we have repeatedly
held that we do not consider arguments raised only in a reply
brief. See Rollins Envtl. Servs. (NJ), Inc. v. EPA, 937 F.2d 649,
652 n.2 (D.C. Cir. 1991); McBride v. Merrell Dow & Pharms.,
Inc., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986). We thus accept
the Postal Service’s assertion as true.

    At oral argument, counsel for intervenors questioned
whether pre-approval by the Governors was even
enough—§ 402, counsel suggested, requires a more “formal”
approval. But this argument, made at that point for the first
time, comes much too late. See United States v. Southerland,


     5
      We quote in substantial part the Commission’s response to
Valpak’s delegation argument:

     The Postal Service responds by stating “the Governors did
     authorize the Postal Service to enter into this [Agreement]
     and reviewed the specific terms and prices that would be
     charged prior to filing the Notice.” Postal Service
     Comments at 19. It correctly references Governors’
     Resolution No. 11-4 . . . which obviates the need for a
     separate specific authorization for every contract consistent
     with that resolution.

Valassis Direct Mail, Inc., Dkt. MC2012-14, at 9 n.14 (Postal
Regulatory Comm’n Aug. 23, 2012) (order), available at http://www.
prc.gov/Docs/85/85014/Order_No_1448.pdf. The Commission’s
language is not a model of clarity, but it expresses no doubt about the
veracity of the Postal Service’s claim. Acknowledging this
uncontested fact sufficed to allow the Commission to move past the
delegation issue. Whether the Commission also meant to pronounce
on the validity of Resolution 11-4 is unclear. We would have expected
a much more thorough legal analysis had it intended to do so.
                                   9

486 F.3d 1355, 1360 (D.C. Cir. 2007). We therefore assume
that the Governors’ level of involvement in this
case—approving the deal, if not actually submitting the
paperwork—satisfies the requirements of § 402. As a result, we
need not consider whether Resolution 11-4 violates § 402.6 See
Fried v. Hinson, 78 F.3d 688, 692 (D.C. Cir. 1996).

     We now proceed to the merits of the order.

                                   III

     In approving the Agreement, the Commission concluded
that the Agreement would not cause “unreasonable harm to the
marketplace.” See 39 U.S.C. § 3622(c)(10)(B). To do so, the
Commission first had to interpret that statutory phrase.
Typically, an administrative agency is entitled to a degree of
deference in interpreting “the statute which it administers.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 842 (1984). But petitioner Newspaper Association of
America argues that the meaning of “unreasonable harm to the
marketplace” had been settled before 2006, that when Congress
enacted the statute using this language it adopted the earlier
interpretation, and that the Commission was not free to depart
from that interpretation.


     6
         Typically, we would first have considered whether the
intervenors could raise this argument at all. The rule in this circuit is
that intervenors may not raise issues not already brought before the
court by a petitioner. See New York v. Reilly, 969 F.2d 1147, 1154
n.11 (D.C. Cir. 1992); Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786
(D.C. Cir. 1990). But see Synovus Fin. Corp. v. Bd. of Governors, 952
F.2d 426, 433-34 (D.C. Cir. 1991) (describing that rule as “prudential”
and subject to appropriate exceptions). However, since we do not
reach the merits of the intervenors’ argument, we assume arguendo
that the argument is properly before us.
                                10

     To be more specific, before passage of the 2006 Act the
Postal Rate Commission—the current Commission’s
predecessor—promulgated regulations governing negotiated
service agreements. See Negotiated Service Agreements, 69
Fed. Reg. 7574 (Feb. 18, 2004) (codified at 39 C.F.R. subpt. L,
later removed as obsolete). One of the regulations provided that
negotiated service agreements were acceptable so long as they
were “consistent with statutory criteria,” “benefit[ted] the Postal
Service,” and did not cause “unreasonable harm to the
marketplace.” 39 C.F.R. § 3001.190(b) (2004). Another
regulation required “an analysis of the impact” of such an
agreement on competitors of the parties to the agreement. Id.
§ 3001.193(f)(1)(i). According to the Newspapers, the Postal
Rate Commission understood § 3001.193(f)(1)(i)’s impact-
analysis requirement to give content to § 3001.190(b)’s
“unreasonable harm to the marketplace” standard. It follows,
the Newspapers say, that Congress incorporated the definition
of “unreasonable harm to the marketplace” in the 2006 Act as
the regulations and decisions of the Postal Rate Commission had
interpreted the phrase.7

     The argument cannot survive close inspection. Its premise
is incorrect. There is no reason to suppose that the Postal Rate
Commission thought § 3001.193(f)(1)(i)’s direction to consider
harm to competitors embodied a definition of § 3001.190(b)’s
“unreasonable harm to the marketplace.” Federal regulations,
like federal statutes, may contain one provision that is meant to
give more content to another. For instance, 39 C.F.R. § 3010.1,
entitled “Definitions in this subpart,” gives meaning to terms
used in the postal regulations using the unmistakable language,


     7
        Once the Act’s statutory scheme replaced the existing
regulatory scheme for governing negotiated service agreements, both
regulations were “rendered obsolete” and removed. Updates to Rules
of Practice, 74 Fed. Reg. 23,113 (May 18, 2009).
                                11

“Annual limitation means . . ..” 39 C.F.R. § 3010.1(a); see also,
e.g., 8 C.F.R. § 1.2 (“Definitions”); 26 C.F.R. § 2.1–1
(“Definitions”). So when other regulations refer to “the annual
limitation,” § 3010.1(a)’s definition clearly applies. See, e.g., 39
C.F.R. § 3010.4(a). Sections 3001.190(b) and 3001.193(f)(1)(i)
were not of that sort. They simply co-existed, sections apart.
And at the end of the day, Congress codified but one of them.

     Postal Rate Commission precedents likewise contain
nothing to indicate that “unreasonable harm to the marketplace”
had become infused with the meaning the Newspapers detect.
Early decisions of the Postal Rate Commission considered harm
to competitors— § 3001.193(f)(1)(i) had required as much. But
the Postal Rate Commission did not tie that inquiry to the
“unreasonable harm” standard. See, e.g., HSBC N. Am.
Holdings Inc., Dkt. MC2005-2, at 37 (Postal Rate Comm’n May
20, 2005) (op. and recommended decision), available at http://
www.prc.gov/Docs/44/44289/OpinionMC2005-2Final.pdf;
Bank One Corp., Dkt. MC2004-3, at 17 (Postal Rate Comm’n
Apr. 21, 2006) (op. and recommended decision), available at
http://www.prc.gov/Docs/48/48385/DecisionMC2004-3Final.
pdf. The current Commission’s other post-Act negotiated
service agreement proceeding considered the newly codified
“unreasonable harm to the marketplace” factor but provided no
content to it because there was no dispute about its meaning.
See Discover Fin. Servs., Dkt. MC2011-19, at 21 (Postal
Regulatory Comm’n Mar. 15, 2011) (order), available at http://
www.prc.gov/Docs/72/72262/Order_No_694.pdf.

    In this case the Commission was thus interpreting
“unreasonable harm to the marketplace” for the first time. And
because “unreasonable” is an amorphous term, we must give the
nod to the agency in determining its meaning, so long as that
meaning is rational and one the statutory language can bear.
                                12

See, e.g., Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 204
(D.C. Cir. 1994). That test is satisfied here.

     The Commission looked to antitrust law and concluded that
harm to the marketplace was “unreasonable” only if it was the
result of anticompetitive pricing—that is, pricing below cost.
The Commission decided further that it was not obligated to
protect individual competitors of the parties to the Agreement
from the harms of fair competition. To the Commission, “as
long as the Postal Service is not pricing its products below costs
to drive its competitors out of the business, it is not creating an
unreasonable level of harm in the marketplace.” Valassis Direct
Mail, Inc., Dkt. MC2012-14, at 27 (Postal Regulatory Comm’n
Aug. 23, 2012) (order) [hereinafter “Valassis Order”], available
at http://www.prc.gov/Docs/85/85014/Order_No_1448.pdf.
Since the terms of the Agreement price all postage above cost,
the Commission did not find the rates to be anticompetitive and
therefore concluded that the Agreement was not unreasonably
harmful to the marketplace.

     In giving content to ambiguous statutory phrases, an
administrative agency is at liberty to look to other bodies of law,
such as antitrust. See N. Natural Gas Co. v. Fed. Power
Comm’n, 399 F.2d 953, 961 (D.C. Cir. 1968). Here, the
Commission drew on a basic tenet of antitrust law: fair
competition is good for consumers even when it leads to “injury
inflicted upon rivals.” ROBERT H. BORK, THE ANTITRUST
PARADOX 136-44 (1978).             The Newspapers say the
Commission’s antitrust analysis was “cramped.” Pet’r Br. 35.
They correctly remind us that, generally speaking, predatory
pricing is just one of many ways to cause harm in a marketplace.
But here it was precisely the “aggressive price reductions” for
Valassis that the Newspapers found objectionable. Opp’n of
Newspaper Ass’n of Am., Valassis NSA, Dkt. MC2012-14, at
3 (Postal Regulatory Comm’n May 23, 2012). It was sensible
                               13

for the Commission to address itself to potential anticompetitive
harms risked by that specific aspect of the deal. The question
whether “unreasonable harm to the marketplace” under
§ 3622(c)(10)(B) encompasses other anticompetitive tactics is
not now before us.

     In any event, in looking to the antitrust laws to inform its
own statutory interpretation, the Commission is not “strictly
bound by the dictates of th[o]se laws.” N. Natural Gas Co., 399
F.2d at 961. Rather, the nature of the agency’s interpretive
discretion is that it may employ those concepts “to a greater or
lesser degree” in order to set sound policy. Id.

    Agency policy judgments still must be adequately
explained. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43
(1983). On that score, the Newspapers argue that the
Commission’s application of the “unreasonable harm to the
marketplace” standard was arbitrary and capricious.

     They cite Professor John Panzar, an economist who, in
prepared testimony in 2003, advised the old Postal Rate
Commission on how to regulate negotiated service agreements.
Professor Panzar believed that the concerns of “[c]ompetitors
of the Postal Service” should not be considered in evaluating a
negotiated service agreement, so long as the Postal Service’s
pricing was not anticompetitive. Official Transcript of Postal
Rate Commission at 1637, Capital One Servs., Inc., Dkt.
MC2002-2 (Feb. 7, 2003), available at http://www.prc.gov/Docs/
37/37064/08-02-0703.pdf. But Professor Panzar also advised
that “[c]ompetitors of the firm receiving the [negotiated service
agreement] . . . may be adversely affected” and that “their
concerns are an important part of the evaluation process.” Id. at
1595 (emphasis added). The Commission cited Professor
Panzar in its analysis of the term “unreasonable harm to the
                                   14

marketplace” but declined to analyze the Agreement’s effects on
anyone other than the Postal Service’s competitors. The
Newspapers challenge what they perceive as a misguided
application of Professor Panzar’s approach.8

     The Newspapers are correct that the Commission did not
meaningfully consider the impact the Agreement would have on
Valassis’s competitors. But we do not believe this diversion
from Professor Panzar was arbitrary and capricious. The
Commission derived its primary rationale for interpreting
“unreasonable harm” from antitrust law. It said as much and
cited two Supreme Court cases for support. See Spectrum
Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993) (“The
[antitrust] law directs itself not against conduct which is
competitive, even severely so, but against conduct which
unfairly tends to destroy competition itself.”); Brown Shoe Co.
v. United States, 370 U.S. 294, 344 (1962) (“It is competition,
not competitors, which the [Sherman] Act protects.”). On that
basis, the Commission interpreted “unreasonable harm” to mean
anticompetitive behavior. And under that interpretation, the




     8
        The intervenors (and the Newspapers to a certain extent) also
make the point that newspapers can themselves be considered
competitors of either the Postal Service or Valassis. They compete
with the Postal Service in the market to deliver advertisements to
consumers, and they compete with Valassis in the market to sell space
in which to place an advertisement. So had the Commission, as
Professor Panzar suggested, concerned itself with the Agreement’s
effects on Valassis’s, but not the Service’s, competitors, it would first
have had to justify placing newspapers in one group or the other.
However, since we conclude that the standard the Commission chose
did not require a consideration of the Agreement’s effects on either
group, the point is of little importance here.
                                   15

Agreement was lawful because the postage was priced above
cost.9

     The Commission cited Professor Panzar for additional
support, but it did not entirely embrace his testimony. We do
not think an agency decision can rise or fall with its faithfulness
to every authority it cites but does not entirely rely upon. See
Kennecott Greens Creek Mining Co. v. Mine Safety & Health
Admin., 476 F.3d 946, 954 (D.C. Cir. 2007). Here, the
Commission relied on antitrust law and, on that basis, rationally
explained the interpretation it applied.10

    The Commission also concluded that, as the statute
required, the Agreement would result in a net benefit to the
Postal Service. See 39 U.S.C. § 3622(c)(10)(A). The
Commission first explained that the Agreement’s discounts
apply only to postage purchased in excess of Valassis’s current
mailing volumes. In that way, the Agreement was specifically
designed to offer discounted postage for “volumes generated in
response to the discount” and not for “volume that would have
been mailed” anyway. Valassis Order 17.



     9
        The price of the postage confirms only that the Postal Service
was not employing anticompetitive tactics; it says nothing about
Valassis. But the Newspapers do not accuse Valassis of unfair
competition. And counsel for the Commission confirmed at oral
argument that if Valassis were to engage in predatory pricing (or any
other anticompetitive tactic) on the strength of its favorable postal
rates, standard antitrust remedies would be available.
     10
         In addition, the Commission noted that any competitive
advantage conferred upon Valassis by the Agreement would be dulled
by the statutory requirement that the benefits of the deal be made
available “on public and reasonable terms to similarly situated mailers.”
39 U.S.C. § 3622(c)(10).
                               16

     The Newspapers accept this logic. But they claim that gains
from Valassis’s expenditures will be more than offset by
reduced postage expenditures by mailers not party to the
Agreement. See 39 C.F.R. § 3010.42(f)(3) (requiring the
Commission to consider this effect). They argue that if Valassis
can send advertising through the mail more cheaply, then it can
charge less to its advertisers and thereby cause its competitors
(chiefly, newspapers) to lose market share. Less market share
means less mail to send and less money spent on postage. The
Newspapers estimated that this effect would lead newspapers to
reduce postage expenditures by $199 million annually over the
three-year life of the Agreement. The Commission found that
projection to be unsupported.

     When, as here, an agency is making “predictive judgments
about the likely economic effects of a rule,” we are particularly
loath to second-guess its analysis. Nat’l Tel. Coop. Ass’n v.
FCC, 563 F.3d 536, 541 (D.C. Cir. 2009). Such calculations fall
“squarely within the ambit of [the Commission’s] expertise.”
Alpharma, Inc. v. Leavitt, 460 F.3d 1, 9 (D.C. Cir. 2006)
(internal quotation marks omitted); see 39 U.S.C. § 3622. Our
narrow task here is to ensure that the Commission sufficiently
supported its analysis. See Nat’l Tel. Coop. Ass’n, 563 F.3d at
540-41. We believe it did.

       The Commission identified limitations on the accuracy of
the newspapers’ projections. Primarily, given newspapers’
recent financial struggles, see Nick Gamse, Note, Legal
Remedies for Saving Public Interest Journalism in America, 105
NW. U. L. REV. 329, 331-33 (2011), it is difficult to attribute a
drop in postage expenditures to one particular pricing
arrangement. As the Commission observed, the individual
newspapers that submitted comments to the Commission
seemed to ignore that complexity. Many papers projected, with
little support, only the very worst case—that approval of the
                               17

Agreement would cause them to reduce their postage
expenditures to, or near, zero. Given the Commission’s
explanation of the complexities involved in making these
projections, we cannot disturb its finding that the projections
here were too speculative to be useful.

     The Commission was also required to consider “the policies
of [Title 39]” in assessing the Agreement. 39 U.S.C.
§ 3622(c)(10), (14). (Title 39 of the U.S. Code contains federal
postal law.) The Newspapers contend again, now under this
provision, that the Commission failed to consider the impact of
the Agreement on newspapers’ survival in the marketplace. For
much of our nation’s history, postal policy has subsidized the
mailing of newspapers in recognition of the virtues of a well-
informed electorate. See Note, Second-Class Postal Rates and
the First Amendment, 28 RUTGERS L. REV. 693, 695-96 & n.14
(1975). It is a small jump to conclude that a postal rate that
potentially harms newspapers as a business might run counter to
those policies.

     But the 2006 Postal Accountability and Enhancement Act
considerably revised Title 39 with an eye toward ensuring the
Postal Service’s financial viability. See S. REP. NO. 108-318, at
2-4 (2004). Now, Title 39 reflects the Postal Service’s need to
increase revenue through negotiated service agreements.
According to the Commission, Title 39 does not include a policy
of protecting newspapers “from the consequences of fair
competition.” Valassis Order 33. In light of the 2006 revisions
to the Act, we see no basis for disagreeing with the
Commission’s conclusion. Cf. U.S. Postal Serv. v. Postal
Regulatory Comm’n, 676 F.3d 1105, 1108 (D.C. Cir. 2012).

    We also believe that the Commission gave “due regard” to
the Agreement’s impact on small business concerns. See 39
U.S.C. § 3642(b)(3)(C). By its terms, this provision does not
                               18

impose a substantive limitation on the Commission’s
decisionmaking. It requires only that the decision “address
certain legally delineated topics.” Nat’l Tel. Coop. Ass’n, 563
F.3d at 540. Here, the Commission concluded that the
Agreement’s impact on small business would be cabined
because of geographic and advertising limitations built into the
Agreement. That analysis considers the issue sufficiently and
constitutes the requisite “due regard.”11

                               IV

    The Commission’s order complies with the Postal
Accountability and Enhancement Act and the Administrative
Procedure Act. We have considered and rejected the other
arguments made against the Commission’s order. We therefore
deny the petition for review.

                                                    So ordered.




     11
       Only intervenors raised this argument. However, because we
would reject it in any event, we assume arguendo that we may
consider it.
