 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 14, 2013                   Decided June 18, 2013

                       No. 12-5294

                  DELTA AIR LINES, INC.,
                      APPELLANT

                             v.

   EXPORT-IMPORT BANK OF THE UNITED STATES, ET AL.,
                    APPELLEES

      AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
                 INTERVENOR-APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:11-cv-02024)


    Michael K. Kellogg argued the cause for appellants.
With him on the briefs were Wan J. Kim, Gregory G.
Rapawy, W. Joss Nichols, Jonathan A. Cohen, R. Russell
Bailey, and Stephen B. Moldof.

    Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney
General, Ronald C. Machen Jr., U.S. Attorney, Beth S.
Brinkmann, Deputy Assistant Attorney General, Helen L.
Gilbert, Attorney, and Sparkle L. Sooknanan, Attorney.
                               2

    Steven G. Bradbury, C.B. Buente, and Quentin Riegel
were on the brief for amicus curiae National Association of
Manufacturers in support of appellees.

    Before: HENDERSON,        GRIFFITH,    and   KAVANAUGH,
Circuit Judges.

    Opinion for the Court filed PER CURIAM.

     PER CURIAM: The Export-Import Bank of the United
States is a federal agency that issues loans and loan
guarantees to foreign corporations so that they can purchase
American goods and services. In 2011, the Export-Import
Bank approved $3.4 billion in loan guarantees to Air India so
that Air India could purchase Boeing airplanes. Air India
plans to use the planes to provide air service on transoceanic
routes. Before issuing the loan guarantees, the Bank was
required under the Export-Import Bank Act to consider the
effects that the loan guarantees would have on U.S. industries
and U.S. jobs. See 12 U.S.C. §§ 635(b)(1)(B), 635a-2. Delta
Air Lines argues that the Bank failed to consider those effects,
in violation of the Bank Act. At this stage, we conclude
simply that the Bank failed to reasonably explain its
application of the Bank Act in this case, as required by the
Administrative Procedure Act. We therefore reverse the
judgment of the District Court. The District Court is directed
to remand the case to the Bank without vacating any of the
Bank’s actions in this matter to date.

                               I

    The Export-Import Bank Act establishes the Export-
Import Bank of the United States and authorizes the Bank to
provide loans and loan guarantees that allow foreign
                                  3
companies to purchase American goods and services. The
Bank Act also contains numerous provisions that limit the
Bank’s authority to extend loans and loan guarantees to
foreign corporations. Two such provisions are directly
relevant in this case. Section 635(b)(1)(B) of Title 12
provides that the Bank “shall take into account any serious
adverse effect” of a loan or loan guarantee on certain U.S.
industries and U.S. jobs.        12 U.S.C. § 635(b)(1)(B).
Similarly, Section 635a-2 provides that the Bank “shall
implement such regulations and procedures as may be
appropriate to insure that full consideration is given to the
extent to which any loan or financial guarantee is likely to
have an adverse effect” on U.S. industries and U.S. jobs. 12
U.S.C. § 635a-2. 1

     To comply with the Bank Act, the Bank has developed a
set of Economic Impact Procedures. Those procedures are
designed to identify categories of loans and loan guarantees
that do not have an adverse effect on the relevant portions of
     1
      In relevant part, Section 635(b)(1)(B) provides that the Bank:
       shall take into account any serious adverse effect of such loan
       or guarantee on the competitive position of United States
       industry, the availability of materials which are in short
       supply in the United States, and employment in the United
       States, and shall give particular emphasis to the objective of
       strengthening the competitive position of United States
       exporters and thereby of expanding total United States
       exports.
In relevant part, Section 635a-2 provides that the Bank:
       shall implement such regulations and procedures as may be
       appropriate to insure that full consideration is given to the
       extent to which any loan or financial guarantee is likely to
       have an adverse effect on industries, including agriculture,
       and employment in the United States, either by reducing
       demand for goods produced in the United States or by
       increasing imports to the United States.
                              4
the U.S. economy. Such loans and loan guarantees are thus
effectively screened out from more detailed economic
analysis during the consideration of particular loans or loan
guarantees.    As relevant here, the Economic Impact
Procedures screen out transactions that do not “result in the
foreign production of an exportable good.” J.A. 1129. In
other words, loans and loan guarantees that help foreign
service providers (such as Air India’s airline service) have
been categorically determined not to affect U.S. industries and
U.S. jobs.

     Here, the Bank applied those procedures to Air India’s
loan guarantees. Because Air India planned to use the loan
guarantees to increase the number of transoceanic flights it
offered – a service, not an exportable good – the Bank did not
specifically consider the impact of the loan guarantees on
U.S. industries and U.S. jobs. Delta argues that this approach
is inconsistent with the Bank Act, which according to Delta
requires consideration of the impact of individual loans and
loan guarantees – including to foreign service providers – on
U.S. industries and U.S jobs. The District Court agreed with
the Bank, and Delta now appeals.

                              II

    The Bank’s initial defense to Delta’s challenge is that its
implementation of these provisions of the Bank Act is
committed to its discretion by law and is therefore judicially
unreviewable under the Administrative Procedure Act. See 5
U.S.C. § 701(a)(2). The District Court concluded otherwise.
We agree with the District Court.

    Agency action, the Supreme Court has said, is
presumptively subject to judicial review.    See Abbott
Laboratories v. Gardner, 387 U.S. 136, 140 (1967) (APA
                               5
“embodies the basic presumption of judicial review to one
‘suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of
a relevant statute’”) (citation omitted). The APA contains two
exceptions: Review is unavailable when (i) it is precluded by
statute or (ii) when agency action is committed to agency
discretion by law. See 5 U.S.C. § 701(a)(1)-(2).

    The Bank primarily argues that the second exception
applies here.     Under that exception, agency action is
committed to agency discretion by law and thus judicially
unreviewable when there is “no law to apply.” Heckler v.
Chaney, 470 U.S. 821, 830 (1985) (exception “applicable in
those rare instances where statutes are drawn in such broad
terms that in a given case there is no law to apply”) (internal
quotation marks omitted).

     Section 635(b)(1)(B) mandates that the Bank “shall take
into account any serious adverse effect” a guarantee might
have on certain U.S. industries or U.S. jobs. See 12 U.S.C. §
635(b)(1)(B) (emphasis added). Similarly, Section 635a-2
mandates that the Bank “shall implement such regulations and
procedures as may be appropriate to insure that full
consideration is given to the extent to which any loan or
financial guarantee is likely to have an adverse effect” on U.S.
industries and U.S. jobs. Id. § 635a-2 (emphasis added). The
language in both provisions identifies factors that the Bank
must consider – namely, the adverse effects on U.S. industries
and U.S. jobs. Ensuring that agencies follow commands of
this sort is of course standard judicial fare. These statutes
provide enough law to qualify as “law to apply” under the
relevant APA precedents. See Amador County v. Salazar, 640
F.3d 373, 381 (D.C. Cir. 2011) (review available because
statute imposes mandatory obligations on agency); Armstrong
v. Bush, 924 F.2d 282, 293 (D.C. Cir. 1991) (same); Robbins
                              6
v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curiam)
(“The mere fact that a statute grants broad discretion to an
agency does not render the agency’s decisions completely
nonreviewable under the ‘committed to agency discretion by
law’ exception unless the statutory scheme, taken together
with other relevant materials, provides absolutely no guidance
as to how that discretion is to be exercised.”); see also 3
RICHARD J. PIERCE, JR. ADMINISTRATIVE LAW TREATISE
§ 17.6 (4th ed. 2002) (“statute can confer on an agency a high
degree of discretion, and yet a court might still have an
obligation to review the agency’s exercise of its discretion to
avoid abuse,” especially on procedural grounds).

     The Bank also suggests, in passing, that the Bank Act
implicitly precludes judicial review, the first Section 701(a)
exception to judicial review. In support, the Bank says that it
is designed to function like a commercial bank, not a federal
agency. But the Bank is indisputably a federal agency. 12
U.S.C. § 635(a)(1) (“There is created a corporation with the
name Export-Import Bank of the United States, which shall be
an agency of the United States of America.”). The Bank
further contends that judicial review would undermine its
ability to operate effectively. No doubt many agencies feel
that way at times, but an agency that wants a carve-out from
the APA should direct its arguments to Congress. The Bank
Act does not preclude judicial review for purposes of Section
701(a)(1).

     In sum, the Bank’s actions in this case are subject to
judicial review to determine whether the Bank complied with
the Bank Act or otherwise acted in an arbitrary and capricious
manner. See 5 U.S.C. § 706.
                                7
                               III

     Delta argues that the Bank, by not performing a detailed
economic analysis of the loan guarantees, failed to “take into
account any serious adverse effect” of its loan guarantees and
failed to give “full consideration” to whether the loan
guarantees were likely to have the relevant adverse economic
harm. See 12 U.S.C. §§ 635(b)(1)(B), 635a-2. 2 The Bank
actually shares Delta’s view that the statute requires
consideration of those factors for all loans and loan
guarantees. But the Bank says that its Economic Impact
Procedures do just that because they expressly state that they
are designed to “ensure that all transactions are screened for
economic impact implications.” J.A. 1129.

     The dispute here arises because the procedures
categorically determine that loans and loan guarantees to
foreign service providers will not affect U.S. industries and
U.S. jobs. Delta acknowledges that categorical assessments
are permissible under the Act in appropriate circumstances.
Tr. of Oral Arg. at 5. The real disagreement between the
parties, then, is whether the Bank’s categorical assessment of
the impact of loans and loan guarantees to foreign service
providers is a reasonable application of the Bank Act and has
been reasonably explained for purposes of the Administrative
Procedure Act. See Motor Vehicle Manufacturers Assn. v.
State Farm Mutual Auto. Insurance Co., 463 U.S. 29, 57
(1983); 5 U.S.C. § 706(2)(A). We agree with Delta that the

    2
       Delta also argues that the Bank violated a provision of the
Bank Act that prohibits the Bank from making a loan or loan
guarantee that helps a foreign country expand production capacity
of a competing “commodity” by one percent or more. See 12
U.S.C. § 635(e).      But the ordinary meaning of the word
“commodity” encompasses goods, not services, and so that
provision does not apply here.
                              8
Bank, at a minimum, has not reasonably explained its
justification for the categorical conclusion at issue here. In
particular, the Bank has not reasonably explained its apparent
conclusion that loans and loan guarantees to help a foreign
company provide a service (as opposed to a good) can never
cause adverse effects to U.S. industries and U.S. jobs.

     We need not prolong the matter. Applying this Court’s
precedents regarding remand without vacatur, we direct the
District Court to remand the case to the Bank without
vacating any of the Bank’s actions in this matter to date. See
Allied-Signal, Inc. v. Nuclear Regulatory Commission, 988
F.2d 146, 150-51 (D.C. Cir. 1993) (vacatur not required if “it
is conceivable” that agency may correct error and vacatur
would be too disruptive). On remand to the Bank, the Bank
should (i) attempt to provide a reasonable explanation for how
the Economic Impact Procedures, which screen out loans and
loan guarantees to service providers, square with the statute’s
requirements, or (ii) adequately consider and explain any
adverse effects that these particular Air India loan guarantees
have on U.S. industries and U.S. jobs, or (iii) take whatever
other action the Bank deems appropriate to comply with the
Bank Act and the APA. The Bank’s actions on remand of
course will be subject to later judicial review if an aggrieved
party wishes to challenge the Bank’s actions as unlawful.

                            ***

     We reverse the judgment of the District Court. The
District Court is directed to remand the case to the Bank for
further proceedings consistent with this opinion, but the
District Court should not vacate any of the Bank’s actions in
this matter to date.
                                                   So ordered.
