Citations
- 85 F. Supp. 3d 387
Full opinion text
Re Document Nos.: 19, 30, 31, 32
MEMORANDUM OPINION
Granting Dependants’ Motion for Summary Judgment; Denying Plaintiffs’ Motion for Summary Judgment; Denying Plaintiffs’ Motion to Supplement the Administrative Record as Moot; and Denying Plaintiffs’ Motion for DISCOVERY
RUDOLPH CONTRERAS United States District Judge
I. INTRODUCTION
The Export-Import Bank (“Ex-Im Bank” or “Bank”) is an independent agency established in 1934 as the official export credit agency (“ECA”) of the United States to promote and facilitate U.S. exports by providing loans and loan guarantees to foreign purchasers of U.S.-manufactured goods and services. The U.S. aircraft manufacturing industry is one of many domestic industries that rely on Ex-Im Bank support to compete with foreign manufacturers that receive similar support from foreign ECAs. But while U.S. aircraft manufacturers enjoy the benefits of the Ex-Im Bank’s assistance in selling their planes to foreign airline purchasers, U.S. commercial airlines, which are not eligible for financing from the Bank, object to the boost that the Bank’s support provides to overseas competitors.
Delta Air Lines, Inc. (“Delta”), Hawaiian Airlines, Inc. (“Hawaiian”), and the Air Line Pilots Association, International (“ALPA”) (collectively, “Plaintiffs”) are among those that protest the Ex-Im Bank’s support of foreign aircraft purchasers. Together, Plaintiffs have embarked on a multipronged litigation attack against the Ex-Im Bank and its Board of Directors (collectively, “Defendants”), in which they maintain, among other things, that the Bank has violated the Exports Import Bank Act of 1945 (“Bank Act” or “Charter”) and the Administrative Procedure Act (“APA”) through the adoption and application of certain internal economic impact procedures (“EIPs”), which the Bank uses to assess the economic effects of potential transactions within its broader process of determining whether to approve an application for Bank financing. .
Specifically at issue in this action — one of three separate lawsuits brought by Plaintiffs currently pending before this Court — is the Ex-Im Bank’s approval of five aircraft financing transactions between October 2012 and February 2013. The loan guarantees for these transactions initially were approved by the Bank under its 2007 EIPs, but Defendants later sought a voluntary remand in this case in order to evaluate the financing commitments under the Bank’s newly adopted 2013 EIPs and Guidelines. In the end, the Bank reached the same conclusion on remand under the updated 2013 procedures as it did under the 2007 EIPs: in the Bank’s view, none of the financing commitments were likely to cause serious adverse economic effects to U.S. industry and employment, and as such, the Bank was correct to issue the loan guarantees.
Plaintiffs now assert that the Bank’s adoption and application of the 2007 EIPs and the 2013 EIPs and Guidelines was in excess of its statutory authority under the Bank Act, without observance of procedures required by law, and arbitrary and capricious. Defendants, on the other hand, assert that the Bank acted reasonably and within the modest contours of the Bank Act in regard to both the 2007 EIPs and the 2013 EIPs and Guidelines. Defendants and Plaintiffs each have filed a motion for summary judgment. Upon consideration of the parties’ motions and the memoranda in support thereof and opposition thereto, the Court will grant Defendants’ motion for summary judgment and deny Plaintiffs’ motion.
lí. BACKGROUND
A. Statutory Framework: The Ex-Im Bank And The Bank Act
The Ex-Im Bank is an independent federal agency and corporation that has its origins in a 1934 Executive Order issued by then-President Franklin Roosevelt. See Exec. Order No. 6581 (Feb. 2, 1934). The Bank assumed its current form with the passage of the Bank Act, ch. 341, 59 Stat. 526, which, as amended and codified at 12 U.S.C. § 635 et seq., remains the Bank’s governing Charter. The Bank Act declares that “[t]he Bank’s objective in authorizing loans, guarantees, insurance, and credits shall be to contribute to maintaining or increasing employment of United States workers.” 12 U.S.C. § 635(a)(1). “In connection with and in furtherance of its objects and purposes, the Bank is authorized and empowered to do a general banking business,” including “to guarantee, insure, coinsure, and reinsure against political and credit risks of loss.” Id. Loans and loan guarantees issued by the Ex-Im Bank carry the full faith and credit of the United States government, id. § 635k, and Congress has reauthorized the Bank on more than twenty occasions since 1947.
The Bank Act identifies many policy concerns for the Bank to take into consideration when deciding whether to approve an application for financing support. In particular, the statute requires the Bank to “give particular emphasis to the objective of strengthening the competitive position of United States exporters and thereby of expanding total United States exports.” Id. § 635(b)(l)(B)(ii). The statute also declares that it is “the policy of the United States that loans made by the Bank in all its programs shall bear interest ... at rates and on terms and conditions which are fully competitive with exports of other countries, and consistent with international agreements.” Id. § 635(b)(1)(B). In addition, the Bank must work with other ECAs to “minimize competition in government-supported export financing.” Id. § 635(b)(1)(A).
In requiring the Ex-Im Bank to be competitive, Congress has emphasized that the Bank must process financing applications efficiently and with flexibility, so as not to cause a U.S. exporter to lose an export opportunity. See id. § 635(b)(1)(B) (the Bank’s loans should “neutralize the effect of ... foreign credit on'international sales competition”); see also S.Rep. No. 99-274, at 8 (1986) (recognizing “the need for [the Bank] to respond to exporters’ requests for support in a timely ... fashion”); id. (noting that the adverse economic impact provision of the Bank Act “should be implemented in a way that does not reduce the Bank’s competitiveness and flexibility in assisting U.S. exporters nor ignore the positive aspects of the export sale”).
The Bank Act also contains several provisions requiring the Bank and its Board of Directors (“Board”) to take into account potential serious adverse effects on U.S. industry and employment when considering a proposed transaction. Thus, beginning in 1968, Congress has declared that it is the “policy of the United States” that
in authorizing any loan or guarantee, the Board of Directors 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.
12 U.S.C. § 635(b)(l)(B)(ii); see Pub.L. No. 90-267, § 1(b), 82 Stat. 47, 47 (1968). In 1978, Congress amended the Bank Act to include the provision now codified at 12 U.S.C. § 635a-2, which calls on the Bank to
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.
Id.; see Pub.L. No. 95-630, § 1911, 92 Stat. 3641, 3726 (1978). This provision later was amended to require the Bank to “address in writing the views of [those] who may be substantially adversely affected by the loan or guarantee,” Pub.L. No. 99-472, § 12, 100 Stat. 1200 (1986), but Congress also specifically provided that “[t]his requirement does not subject the Bank to the provisions of subchapter II of chapter 5 of title 5,” id., which is the administrative procedure portion of the APA. See 5 U.S.C. §§ 551-59.
In 1986, Congress incorporated § 608 of the Foreign Operations Appropriations Act of 1978, Pub.L. No. 96-481, § 608, 92 Stat. 1591 (1978), into the Bank Act under substantially similar terms. See Pub.L. No. 99^472, § 11, 100 Stat. 1200, 1203-04 (1986). The Bank Act thus provides, among other things, that the Bank may not extend a financial guarantee for the “production of any commodity for export by any country other than the United States” if the Board determines that “(i) the commodity is likely to be in surplus on world markets at the time the resulting commodity will first be sold; or (ii) the resulting production capacity is expected to compete with United States production of the same, similar, or competing commodity.” 12 U.S.C. § 635(e)(1). Such a limitation does not apply, however, when the Board determines that the “short- and long-term benefits to industry and employment in the United States are likely to outweigh the short- and long-term injury to United States producers and employment of the same, similar, or competing commodity.” Id. § 635(e)(3). Congress has specified that “substantial injury” occurs when “the amount of the capacity for production established, or the amount of the increase in such capacity expanded, by” a transaction “equals or exceeds 1 percent of United States production.” Id. § 635(e)(4).
Section 635(e), moreover, provides that “[i]f ... the Bank conducts a detailed economic impact analysis or similar study,” it must provide notice and obtain comments on the potential economic effects of the financing support. Id. § 635(e)(7)(B)®. Under this provision, the Bank also must consider certain factors when conducting a detailed economic analysis. See id. § 635(e)(7)(A). In addition, Congress requires the Bank to implement such regulations and procedures as may be appropriate, see id. § 635(e)(7)(G), and as it did in § 635a-2, Congress has provided that “[t]his paragraph shall not be construed to make [the administrative procedure portion of the APA, 5 U.S.C. §§ 551-59,] applicable to the Bank.” Id. § 635(e)(7)(F).
In May 2012, when it reauthorized the Bank, Congress imposed two new requirements regarding the Bank’s assessment of potential adverse economic impacts. First, Congress required the Bank to, within 180 days, “develop and make publicly available methodological guidelines to be used by the Bank in conducting economic impact analyses or similar studies” of any potential adverse effects its transactions might have on U.S. industry and employment. Reauthorization Act § 12(a). Second, Congress specified that “[i]n developing the guidelines, the Bank shall take into consideration any relevant guidance from the Office of Management and Budget.” Id.
B. The 2007 EIPs And The Exportable Goods Screen
In an attempt to comply with its statutory mandate to “take into account” the adverse impact of its loans and loan guarantees on U.S. industry and employment, the Bank has adopted EIPs that, among other things, use screens to exempt certain transactions from in-depth economic impact analysis. See Administrative Record (“AR”) at 1368-73. Of relevance here, in 2001 the Bank changed its EIPs to include a new screen that excluded from in-depth review any “transaction! ] that would result in the provision of exportable services from foreign countries” (the “exportable goods screen”). See id. at 1371. By extension, this screen excluded from economic impact analysis the Bank’s financing of foreign aircraft transactions, which the Bank deems to result in the production of exportable services (i.e., airline seats), not exportable goods. See id. at 1371-72. The Bank revised its EIPs in 2007 but retained the exportable goods screen. See id. at 1356-64 (2007 EIPs). Thus, from 2001 to 2013, when the Bank again revised its EIPs and adopted the 2013 EIPs and Guidelines, see id. at 1441-55 (2013 EIPs and Guidelines), the Bank did not conduct in-depth economic analysis regarding the impact of its aircraft financing transactions.
C. ATA, Delta I, And The Bank’s Remand Responses
In 2011, the Air Transport Association of America, ALPA, and Delta challenged the Bank’s loan guarantee commitments to Air India for the purchase of certain Boeing aircraft, which the Bank reviewed under its 2007 EIPs. See Air Transp. Ass’n of Am. v. Export-Import Bank (“ATA”), 878 F.Supp.2d 42 (D.D.C.2012). After the parties filed dispositive motions in that case, Judge Boasberg granted summary judgment in favor of Defendants, concluding that the “Bank acted neither arbitrarily and capriciously nor contrary to its governing statute when it approved the” Air India transactions using the exportable goods screen. Id. at 54. Delta and ALPA (but not the Air Transport Association of America) appealed, and the D.C. Circuit reversed.
In particular, the D.C. Circuit did not determine that the exportable goods screen was inconsistent with the Bank Act. See Delta Air Lines, Inc. v. Export-Import Bank (“Delta I”), 718 F.3d 974, 975 (D.C.Cir.2013) (per curiam). Instead, the circuit court simply held that the Bank “[had] not reasonably explained its justification for the categorical conclusion at issue.” Id. Accordingly, the D.C. Circuit directed the district court “to remand the case to the Bank for further proceedings,” without vacating the Air India commitments, and the circuit court provided the Bank with three options on remand:
(i) attempt to provide a reasonable explanation for how the [2007 EIPs], 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 responded to the Delta I remand order by preparing and publishing two documents, entitled Response One and Response Two (collectively, the “Remand Responses”). See AR at 1365-98 (Response One), 1399-440 (Response Two). Response One was the Bank’s “attempt to provide a reasonable explanation for how the [2007 EIPs] ... square with the [Bank Act’s] requirements.” Id. at 1365. Alternatively, Response Two attempted to “consider and explain any adverse effects that these particular Air India loan guarantees have on U.S. industries and U.S. jobs,” id. at 1399, and it concluded that “the benefits of the Bank’s guarantees in the Air India transactions significantly outweigh any potential adverse effects of such guarantees, if, indeed, there are any adverse effects.” Id. at 1404.
D. Adoption Of The 2013 EIPs And Guidelines
Though Congress did not require the Bank to modify the 2007 EIPs, or the way in which the Bank applied them, when it reauthorized the Bank in May 2012, the Bank undertook to revise its EIPs anyways, as it has done from time-to-time throughout its existence. As the Bank’s policy group informed the Board, the Bank already had been reassessing the EIPs after becoming aware of several concerns regarding the transparency of the methodology used in connection with detailed economic impact analyses, the relevance of the assumptions applied to the methodology, and the application of economic impact analysis to services, including aircraft financing transactions. See id. at 1995. The Reauthorization Act therefore “provided the opportunity [for] the Bank to conclude its reassessment” of the EIPs. Id.
On September 27, 2012, while Delta I was pending, the Bank proposed new “Economic Impact Procedures and Methodological Guidelines” to govern its review of proposed transactions, and the Bank made the proposal available on its website and in the Federal Register. See id. at 1456, 1670. On November 19, 2012, the Bank’s Board adopted the new EIPs, as well as an explanation of the guidelines for conducting detailed economic impact anal-yses, and set the effective date as April 1, 2013, to allow time for implementation, including time to commission an independent expert to conduct the structural oversupply analysis called for by the new procedures. See id. at 1441, 2016. The so-called “20,13 EIPs and Guidelines” remain in effect today.
The 2013 EIPs and Guidelines take a different approach than the 2007 EIPs in assessing certain potential transactions. Specifically, under the new guidelines, proposed transactions that will result in an increase in services are no longer categorically screened from further economic impact analysis, as they were under the 2007 EIPs and the exportable goods screen. See id. at 1442. Instead, the-Bank decided to subject to further review those transactions involving service sectors for which interested parties have identified specific cases of potential impact and have provided quantified estimates of potential harm. See id. at 1442 n. 7. The Bank then determined that, at the time of passing the new EIPs, “the only transactions creating an exportable, service deemed to meet [these] criteria [are] aircraft” transactions. See id. The 2013 EIPs and Guidelines therefore set forth a step-by-step methodology for the Bank’s review of aircraft financing transactions (the “aircraft-specific procedures”), which is divided into four stages, with the first two stages constituting “screens” designed to identify those aircraft transactions that merit detailed economic impact analyses, and the latter two stages summarizing the methodology for conducting such detailed analyses, when required. See id. at 1453-55.
E. The Five Transactions And The Present Litigation: Delta III
On April 3, 2013, Plaintiffs filed the present lawsuit, Delta III, challenging the Bank’s decision to approve the following five aircraft financing transactions (the “Five Transactions”) under the 2007 EIPs between October 2012 and February 2013:
1. The Emirates Transaction: Applications from the International Lease Finance Corporation to support financing totaling $304,553,725 for the purchase of Boeing 777 aircraft to be leased to Emirates, approved on October 25, 2012. See id. at 3 (Federal Register Notice, 77 Fed.Reg. 58,139 (Sept. 19, 2012)); id. at 162-242 (memos to the Board).
2. The LOT Transaction: Application from LOT Polish Airlines to support financing totaling $486,464,580 for the purchase of Boeing 787 aircraft, approved on October 25, 2012. See id. at 252 (Federal Register Notice, 77 Fed.Reg. 58,139 (Sept. 19, 2012)); id. at 451-533 (memos to the Board).
3. The Etihad Transaction: Application from Etihad Airways to support financing totaling $314,376,672 for the purchase of Boeing 777 aircraft, approved on January 17, 2013. See id. at 543 (Federal Register Notice, 77 Fed.Reg. 74,010 (Dec. 12, 2012)); id. at 699-778 (memos to the Board).
4. The KAL Transaction: Applications from Korean Air Lines to support financing totaling $480,362,851 for the purchase of Boeing 777 and 747 aircraft, approved on February 19, 2013. See id. at 788 (Federal Register Notice, 78 Fed.Reg. 2,672 (Jan. 14, 2013)); id. at 955-1068 (memos to the Board).
5. The LATAM Transaction: Applications from LATAM Airlines Group, consisting of LAN Airlines (Chile) and TAM Airlines (Brazil), to support financing totaling $593,848,242 for the purchase of Boeing 777 and 767 aircraft, approved on February 21, 2013. See id. at 1077 (Federal Register Notice, 78 Fed.Reg. 2,673 (Jan. 14, 2013)); id. at 1221-1311 (memos to the Board).
Delta and ALPA submitted written comments opposing each of the proposed loan guarantees, and Hawaiian participated in the comments on the KAL and LATAM transactions. See id. at 5149, 254-438, 547-692, 797-946, 1087-213. For each transaction, the Bank’s staff prepared a memorandum and presentation for the Board; among other things, the staff memorandum briefly summarized the public comments that the Bank received regarding each transaction. See id. at 239-42, 527-33, 776-78, 1057-61, 1307-11. And because the Bank applied the 2007 EIPs and the exportable goods screen, each memorandum stated that no detailed economic impact analysis was required for the final commitments at issue. See id. at 176, 463, 707, 985,1248.
Returning to the present litigation, Plaintiffs originally challenged the Bank’s authorization of the Five Transactions under the 2007 EIPs as contrary to the APA and the Bank Act. The parties also recognized, however, that the D.C. Circuit’s then-anticipated ruling on appeal from ATA was “likely to inform the question[s]” before this Court, including “whether the Bank was obligated to conduct detailed economic assessments of the potential harms caused by its financing before approving each of the foreign airline applications challenged in th[e] Complaint.” Joint Mot. Stay, ECF No. 11, at 2. Accordingly, the parties asked the Court to stay this litigation until Delta I was decided, which the Court did. See Minute Order (May 17, 2013).
On June 18, 2013, the D.C. Circuit issued .its decision in Delta I, reversing ATA and ordering the district court to remand the matter to the Bank.' In light of the D.C. Circuit’s decision, Defendants requested a voluntary remand regarding the financing commitments at issue in this case. See Joint Proposed Sched., ECF No. 17. On remand, the Bank analyzed the Five Transactions under the 2013 EIPs and Guidelines (the “Remand Analy-ses”), see AR at 1323-55, and according to the cover memorandum for the Remand Analyses, the Bank concluded that “[i]n all cases ... the transactions do not meet the standards for adverse economic impact.” Id. at 1323. In particular, the Remand Analyses applied the 2013 EIPs and Guidelines either to screen out each transaction from detailed analysis at Stage II or to conclude at Stages III and IV that there was no significant risk of adverse economic effects to the U.S. airline industry. See id. at 1325-51. Plaintiffs now object to the Remand Analyses and the Remand Responses, and as a remedy, Plaintiffs request that the Court vacate the loan guarantees issued by the Bank in conjunction with the Five Transactions. Plaintiffs and Defendants each have filed a motion for summary judgment.
III. LEGAL STANDARD
Summary judgment may be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of. affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895.
Though styled as motions for summary judgment, the dispositive pleadings in this case actually seek the Court’s review of administrative action. The standard set forth in Rule 56(c) therefore does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F.Supp.2d 76, 89-90 (D.D.C.2006) (citing Nat’l Wilderness Inst. v. U.S. Army Corps of Eng’rs, No. CIV 01-0273, 2005 WL 691775, at *7 (D.D.C. Mar. 23, 2005)); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995), amended on other grounds, 967 F.Supp. 6 (D.D.C.1997). “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Sierra Club, 459 F.Supp.2d at 90 (citation and quotation omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. INS, 554 F.2d 1173, 1177 (D.C.Cir.1977); Bloch v. Powell, 227 F.Supp.2d 25, 31 (D.D.C.2002).
The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “narrow” standard of review as courts defer to the agency’s expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal citation and quotation omitted). The reviewing court “is not to substitute its judgment for that of the agency,” id. and thus “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Nevertheless, a decision that is not fully explained may be upheld “if the agency’s path may reasonably be discerned.” Id. at 286, 95 S.Ct. 438; see also Dillmon v. Nat’l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C.Cir.2009) (a court must “defer to the wisdom of the agency, provided its decision is reasoned and rational”).
Finally, a court’s review is particularly deferential when a plaintiff challenges agency decisions that balance competing statutory mandates and involve technical, predictive judgments within the agency’s special area of expertise. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (when the agency’s analysis “requires a high level of technical expertise,” courts “must defer to the informed discretion of the responsible federal agencies” (citation and quotation marks omitted)); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C.Cir.2009) (“The ‘arbitrary and capricious’ standard is particularly deferential in matters implicating predictive judgments[.]” (citations omitted)). “Thus, when an agency’s decision is primarily predictive, [a court’s] role is limited; [courts] require only that the agency acknowledge factual uncertainties and identify the considerations it found persuasive.” Rural Cellular, 588 F.3d at 1105.
IV. ANALYSIS
Through this lawsuit, Plaintiffs allege that the Bank’s Delta I Remand Responses and Delta III Remand Analyses should be excluded from the administrative record as post-hoc rationalizations, but even if considered part of the record, these remand papers should be rejected because the 2007 EIPs and the 2013 EIPs and Guidelines, as designed and adopted by the Bank, violate the APA, the Bank Act, and the Reauthorization Act for both procedural and substantive reasons. Alternatively, Plaintiffs argue that even if the 2013 EIPs and Guidelines are not facially invalid, the application of those EIPs . to the Five Transactions on remand was arbitrary and capricious and in violation of the Bank Act.
In addition to opposing each of Plaintiffs’ arguments for summary judgment, Defendants move for summary judgment on their own behalf. First, Defendants argue that they correctly evaluated the Five Transactions under the 2007 EIPs initially because those were the procedures in effect at the time of the relevant financing decisions, not the 2013 EIPs and Guidelines. Second, Defendants argue that the Court should uphold the exportable goods screen in the 2007 EIPs based on the explanation the Bank provided in Response One following the Delta I remand. And third, Defendants argue that the Remand Analyses applying the 2013 EIPs and Guidelines to the Five Transactions further demonstrate the reasonableness of the Bank’s actions in approving the contested financing commitments.
Resolving the parties’ motions for summary judgment requires the Court to address numerous textbook questions of administrative law and to grapple with complex economic and financial concepts as they relate to the airline industry. To do so, the Court will proceed as follows. First, the Court addresses whether it may consider Response One as part of the administrative record, or whether this remand response must be excluded as a post-hoc rationalization. Second, after concluding that Response One is properly before the Court, the Court considers the sufficiency of the Bank’s justification for the exportable goods screen. And third, the Court addresses Plaintiffs’ argument that the Bank erred by applying the 2007 EIPs, rather than the 2013 EIPs and Guidelines, when originally authorizing the Five Transactions.
Because the Court concludes that it may consider Response One, that the 2007 EIPs represent a reasonable interpretation of the relevant statutes, and that the Bank acted reasonably when it applied the 2007 EIPs to approve the Five Transactions, the Court finds that Defendants have done enough to overcome Plaintiffs’ challenge to the Bank’s authorizations for the Five Transactions. Accordingly, the Court grants summary judgment for Defendants as to Plaintiffs’ Counts I, II, and III. In so doing, the Court also finds that it is both unnecessary and imprudent to address the Remand Analyses and the 2013 EIPs and Guidelines in this litigation because the Court upholds the financing authorizations regardless of the agency’s decisionmaking in adopting the new EIPs and during the voluntary remand, and any alternative analysis considering such issues here would amount to little more than the Court delivering an advisory opinion to the agency about its actions, which is forbidden.
A. Whether Response One Is Properly Before The Court
A threshold issue that will dictate the rest of the Court’s analysis herein is whether Response One is reviewable as part of the administrative record. Specifically, in Delta I, the D.C. Circuit held that the Bank’s decision to approve the Air India transactions could not be sustained because, “at a minimum,” the Bank had not “reasonably explained its justification” for the exportable goods screen. Delta I, 718 F.3d at 978. The circuit court therefore directed the Bank on remand to explain how its exportable goods screen “square[s] with the [Bank Act’s] requirements,” id. and the Bank prepared Response One in an attempt to do just that. Plaintiffs now object to the Court considering Response One as part of the administrative record on the basis that the Bank’s actions constituted a forbidden post-hoc rationalization. See Pis.’ Mem. Supp. Mot. Summ. J., ECF No. 31-1, at 24-25.
Without doubt, a “fundamental rule of administrative law” is that a court reviewing an agency’s decision “must judge the propriety of [the agency] action solely by the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). Typically, the grounds reviewed will appear in the administrative record, see Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C-Cir.1990), and judicial review therefore “is to be based on the full administrative record that was before the [agency] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Accordingly, “it is the agency’s responsibility, not this Court’s, to explain its decision,” State Farm, 463 U.S. at 57, 103 S.Ct. 2856, and if the agency’s “grounds are inadequate or improper, the [C]ourt is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Chenery, 332 U.S. at 196, 67 S.Ct. 1760. It is unsurprising, then, that posthoc rationalizations “have traditionally been found to be an inadequate basis for review” of agency decisions. Overton Park, 401 U.S. at 419, 91 S.Ct. 814; see also Edison Elec. Inst. v. OSHA, 849 F.2d 611, 617-18 (D.C.Cir.1988) (“Ordinarily, ... neither party is entitled to supplement the record with litigation affidavits or other evidentiary material that was not before the agency.” (citations omitted)).
At the same time, however,' the D.C. Circuit explained in Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C.Cir.2006), that Overton Park also “approved the procedure of remanding so that an agency can provide an explanation for an inadequately articulated decision.” Id. at 6. The prohibition against post-hoc rationalizations therefore “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning.” Id. (citation and quotation omitted); see also Amoco Oil Co. v. EPA, 501 F.2d 722, 729 n. 10 (D.C.Cir.1974) (“Rule-making is necessarily forward-looking, and by the time judicial review is secured events may have progressed sufficiently to indicate the truth or falsity of agency predictions. We do not think a court need blind itself to such events[.]”). Further, the Supreme Court has explained that if the administrative “record before the agency does not support the agency action ... or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (emphasis added). The Court finds that, through Response One, the Bank offers the exact type of “amplified articulation” and “additional explanation” regarding the basis for the exportable goods screen that the D.C. Circuit demanded in Delta I.
Plaintiffs’ primary complaint about Response One is that it was not ratified through a vote by the Bank’s Board. See, e.g., Pis.’ Mem. Supp. Mot. Summ. J., ECF No. 31-1, at 25. For this proposition, Plaintiffs rely on the D.C. Circuit’s decision in Alpharma, which held that the rule against post-hoc rationalizations “ ‘forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.’ ” 460 F.3d at 6 (quoting Local 814, Int’l Bhd. of Teamsters v. NLRB, 546 F.2d 989, 992 (D.C.Cir.1976)). Alpharma thus requires a court to ask whether the party who provided the remand explanation was a “proper decisionmaker” and whether the remand explanation “represent[ed] the considered views of the agency itself.” Id. at 7.
To establish that a Board vote was required to make Response One legitimate, Plaintiffs rely on § 635(b)(l)(B)(ii) of the Bank Act, which directs the “Board of Directors,” when “authorizing any ... guarantee,” to “take into account any serious adverse effect of such ... guarantee on the competitive position of United States industry ... and employment.” 12 U.S.C. § 635(b)(l)(B)(ii). But the Delta I remand explicitly did not require the Bank to issue new authorizing decisions for the Air India commitments as if the D.C. Circuit had vacated the original authorizations; rather, the Bank only was ordered to provide further explanation on remand in an effort to justify the authorizations that it already had made, not to revisit and reissue those decisions anew. See Delta I, 718 F.3d at 978 (refusing to vacate transactions and ordering that the Bank must “attempt to provide a reasonable explanation” justifying the exportable goods screen, or “explain ” the adverse effects of the Air India loan guarantees (emphasis added)). As such, the Court finds that § 635(b)(l)(B)(ii) is inapplicable.
The Court, moreover, ■ finds no authority — whether in the APA, the Bank Act, or elsewhere — that requires a formal Board vote adopting Response One when it did not amount to the authorization of a financing decision but rather merely was an explanation of prior decisions. Cf. Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319, 337 (D.C.Cir.2011) (when no action by the Commandant or the Secretary of the Department of Homeland Security was required, Coast Guard “official” was found to be a proper decisionmaker); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317, 1325 (D.C.Cir.1998) (when no action by the Commissioner was required, FDA director was found to be a proper decisionmaker); Cardinal Health, Inc. v. Holder, 846 F.Supp.2d 203, 218-19 (D.D.C.2012) (when no action by the Attorney General was required, DEA Administrator was found to be a proper decisionmaker).
Here, Response One was submitted to the Bank’s senior staff and members of the Bank’s Board for their review and comments, see Defs.’ Mem. Opp’n Mot. Summ. J., ECF No. 35, Ex. A (E-mails from the Bank’s General Counsel), and it was published on the Bank’s website on November 22, 2013. See AR at 1380. Response One also makes clear that it represents “the Bank’s” experience, judgment, analyses, and conclusions, see, e.g., id. at 1374, and it was signed and published in the name of the “Export-Import Bank of the United States.” Id. at 1380. Because Response One clearly was drafted by the Bank and embodies the Bank’s official position, the Court finds that, even without a vote by the Bank’s Board, the response was prepared by the “proper decisionmaker” and represents “the views of the agency itself.” Alpharma, 460 F.3d at 7. Thus, the Court finds that Response One is a permissible and official “explanation [on remand] for an inadequately articulated decision,” id. at 6, and the Court therefore may consider the response as part of the administrative record.
That being said, Plaintiffs’ complaint about the lack of a Board vote was addressed by Defendants during the course of this litigation. Specifically, the Bank announced on April 10, 2014, that the Board would vote at its April 17 meeting about “whether to ratify and formally adopt the [Remand Responses and Remand Analyses].” AR at 2144 (agenda for April 17, 2014, Board meeting). Prior to the vote, the Bank’s staff recommended that the Board adopt the remand papers “in recognition that [the papers] have represented and continue to represent the official position of the Bank,” and that they “serve as the Bank’s official responses to the litigation remands.” Id. at 2145; see also id. at 2145-47 (April 9, 2014, Board Memorandum).
On April 14, 2014, Plaintiffs submitted a letter and supporting materials to members of the Board “urg[ing] the Board to reject the [remand papers].” Id. at 2152, 2155. The Bank’s staff reviewed Plaintiffs’ 'materials and informed the Board that this submission “repeat[ed] arguments that [Plaintiffs have] made multiple times,” both in “the several lawsuits brought by” Plaintiffs and in “comments” that Plaintiffs “submitted ... in connection with various aircraft transactions.” Id. at 2148. Accordingly, the staff advised the Board that the materials did not “raise[] anything new that warrant[ed] changing either” the staffs recommendation that the Board ratify and adopt the remand papers or the substance of the remand papers themselves. Id. Thus, at its April 17, 2014, meeting, the Board unanimously voted to ratify and adopt the Remand Responses and the Remand Analyses. Id. at 2312. Following the vote, Defendants supplemented the administrative record in this case with the materials relevant to the Board’s actions. See generally Defs.’ Notice Am. Admin. R., ECF No. 41. Plaintiffs, however, object to Defendants’ effort to amend the administrative record and ask the Court to reject the vote as procedurally defective. See Pis.’ Suppl. Mem. Supp. Mot. Summ. J., ECF No. 43, at 5. The Court finds no basis for doing so.
In resolving Plaintiffs’ challenge to the Board’s vote, the Court finds it significant that in Delta I, the D.C. Circuit gave Defendants broad discretion to determine how to act on remand, including the open-ended option to “take whatever other action the Bank deems appropriate to comply with the Bank Act and the APA.” Delta I, 718 F.3d at 978. This flexibility is consistent with the Supreme Court’s pronouncement that, on remand, an agency retains “administrative discretion in deciding how, in light of internal organizational considerations, it may best proceed,” and a reviewing court therefore “may not ... dictat[e] to the agency the methods, procedures, and time dimension of the needed inquiry!.]” Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326, 333, 96 S.Ct. 579, 46 L.Ed.2d 533 (1976); see also SEC v. Chenery, 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (explaining that the prohibition on post-hoc rationalizations is not intended to “enforc[e] formal requirements” or to “suggest[] that the [agency] must justify its exercise of administrative discretion in any particular manner or with artistic refinement”). Plaintiffs, however, ask the Court to violate this proscription by dictating specific procedures that the Bank should have followed in regard to when and how the Board voted, but the Court declines to do so absent any clear'legal foundation for imposing such rules. See Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 541, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (“[Ajbsent extraordinary circumstances it is improper for a reviewing court to prescribe the procedural format an agency must follow[.]”); see also Perez v. Mortg. Bankers Ass’n, — U.S. -, 135 S.Ct. 1199, 1207, 191 L.Ed.2d 186 (2015) (discussing the “longstanding principle!] of ... administrative law jurisprudence” that “[bjeyond the APA’s minimum requirements, courts lack authority ‘to impose upon [an] agency its own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good’ ” (citation omitted)). As such, the Board’s vote leaves no doubt that Response One represents the official position of the agency, and the vote further justifies why the Court should consider it here.
Food Marketing Institute v. ICC, 587 F.2d 1285 (D.C.Cir.1978), another case on which Plaintiffs rely, also does not compel the Court to ignore Response One. That decision’s warning against “[p]ost-hoc rationalizations by the agency on remand,” id. at 1290, occurred after the court already had concluded that the agency’s position was “defective” — not just insufficiently explained, as in Delta I — and the court therefore had “vacated” the decision — in contrast to remand without vaca-tur in Delta I. See id. at 1288. The agency then issued a new decision reaching the same conclusion as in the decision previously vacated, leading the D.C. Circuit to caution that
[t]he agency’s action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result. Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review.
Id. at 1290 (citation omitted). This statement therefore addresses the potential problem of closed-mindedness when an agency is required to make a new decision on remand, which is different than the circumstances here, where the Delta I remand occurred in order for the agency to provide a fuller articulation of its reasoning in support of prior decisions that themselves were left undisturbed.
Finally, Plaintiffs suggest that Chenery prevents the Court from considering Response One, but the Court disagrees. Chenery stands for the proposition that when Congress has delegated “a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.” Chenery, 318 U.S. at 88, 63 S.Ct. 454. Consistent with Chenery, it often is stated that “the courts may not accept ... counsel’s post hoc rationalizations for agency action.” State Farm, 463 U.S. at 50, 103 S.Ct. 2856; see also Women Involved in Farm Econ. (‘WIFE”) v. U.S. Dep’t of Agric., 876 F.2d 994, 998 (D.C.Cir.1989) (explaining that Chenery “ordinarily prevents agency counsel from proffering alternative theories' — not explicitly embraced by a department or agency head — to support a challenged regulation”). But here, there is no issue of counsel for the Bank presenting post-hoc rationalizations because Response One was prepared by the agency, not its counsel.
In sum, the Court concludes that Response One provides the type of “amplified articulation” that an agency is permitted to — and, here, required to by the D.C. Circuit — provide on remand; accordingly, examination of Response One’s contents is perfectly appropriate. See Alpharma, 460 F.3d at 6 (“Needless to say, if it is appropriate for a court to remand for further explanation, it is incumbent upon the court to consider that explanation when it arrives.”); Local 811, 546 F.2d at 992 (“The policy of the post hoc rationalization rule does not prohibit the [agency] from submitting an amplified articulation [for its actions]. Moreover, the logic of the rule requires it. If a reviewing court finds the record inadequate to support a finding of reasoned analysis by an agency and the court is barred from considering rationales urged by others, only the agency itself can provide the required clarification.”).
B. Plaintiffs’ Challenges To The 2007 EIPs And The Exportable Goods Screen
Having settled that Response One is properly before the Court, the Court next turns to evaluating whether the Bank’s adoption of the exportable goods screen as part of the 2007 EIPs was contrary to the APA or the Bank Act. In particular, Defendants ask the Court to find that the screen was the product of the Bank’s well-reasoned determination that transactions in which the export was to be used by the foreign purchaser to provide a service— and not to produce an exportable good— were unlikely to cause a substantial or serious adverse economic impact on U.S. industry and employment. See Defs.’ Mem. Supp. Mot. Summ. J., ECF No. 30-1, at 21-22. Plaintiffs, however, disagree that the exportable goods screen represents the culmination of rational agency decisionmaking and instead contend that the screen cannot be reconciled with the Bank Act. See Pis.’ Mem. Opp’n Mot. Summ. J., ECF No. 36, at 15.
Turning to Plaintiffs’ substantive challenge, the Court begins, as it must, with the relevant statutes. In particular, Plaintiffs maintain that the exportable goods screen does not reasonably serve the Bank Act’s objectives, as proclaimed through three related provisions. First, § 635 specifies that, among other considerations, the agency “shall take into account any serious adverse effect of [a proposed] loan or guarantee on the competitive position of United States industry ... 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.” 12 U.S.C. § 635(b)(l)(B)(ii). Second, the Bank Act provides that the agency “may not extend [financing support] for establishing or expanding production of any commodity for export by any country other than the United States[ ] if ... the Bank determines that the extension of such [support] will cause substantial injury to United States producers of the same, similar, or competing commodity,” id. § 635(e)(1), unless “in the judgment of the Board of Directors of the Bank, the short- and long-term benefits to industry and employment in the United States are likely to outweigh the short- and long-term injury to United States producers and employment of the same, similar, or competing commodity.” Id. § 635(e)(3). And third, the Bank Act requires 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 ... and employment in the United States.” Id. § 635a-2.
Though these provisions utilize somewhat different language, it is undisputed that, taken together, they require the Bank to consider (or, more accurately, “take into account”) the potential adverse effects of its loans and loan guarantees on U.S. industry and employment. Plaintiffs insist, however, that the Bank, through the exportable goods screen, ignores this fundamental statutory mandate altogether. See Pis.’ Mem. Opp’n Mot. Summ. J., ECF No. 36, at 28. Such failure, Plaintiffs contend, renders the Bank’s decision to approve the Five Transactions under the 2007 EIPs arbitrary and capricious. See, e.g., Overton Park, 401 U.S. at 416-17, 91 S.Ct. 814 (agency acted arbitrarily and capriciously when decision was not “based on a consideration of the relevant factors” and failed to “follow[ ] the necessary procedural requirements”); United Mine Workers of Am., Int’l Union v. Dole, 870 F.2d 662, 673 (D.C.Cir.1989) (agency acted arbitrarily and capriciously due to “complete absence of any discussion” of statutorily required element). Defendants, on the other hand, argue that consideration of the statutorily mandated factors occurred at the time the 2007 EIPs were adopted and then applied to the Five Transactions. See Defs.’ Reply Supp. Mot. Summ. J., ECF No. 37, at 14-15. The Court, then, must decide whether the institution and application of the exportable goods screen sufficed to discharge the Bank’s obligations under the Bank Act. In the end, the Court finds that the screen represents a reasonable attempt by the Bank to comply with its modest statutory obligations. Accordingly, the Court finds in favor of Defendants.
1. Standard Of Review
To determine whether the exportable goods screen is a permissible construction under the Bank Act, the Court first must determine how much deference is owed to the agency. Defendants argue that the Bank is entitled to the level of deference afforded by the framework set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Defs.’ Mem. Supp. Mot. Summ. J., ECF No. 30-1, at 22. Plaintiffs, however, assert that the two-step Chevron analysis is inapplicable. See Pis.’ Mem. Opp’n Mot. Summ. J., ECF No. 36, at 25.
It is well established that “not all statutory interpretations by agencies qualify for [Chevron] deference.” Pub. Citizen, Inc. v. U.S. Dep’t of Health & Human Servs., 332 F.3d 654, 659 (D.C.Cir.2003) (citations omitted). Thus, the Supreme Court has explained that “[d]eference in accordance with Chevron ... is warranted only ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (quoting United, States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). But as Judge Boasberg noted in ATA, there is no “clear answer” about whether Chevron deference should apply to the Bank’s creation of the exportable goods screen. See ATA 878 F.Supp.2d at 72 (“The application of [the Gonzales] standard to the EIPs ... does not yield a clear answer.”).
This is because, on the one hand, Congress clearly delegated to the Bank and the Board broad authority to make loan guarantees such as those at issue here, see 12 U.S.C. § 635(a)(1), (b)(1), and Congress also required the agency to “take into account” certain factors — such as potential “serious adverse effect[s]” of a transaction, id. § 635(b)(l)(B)(ii), and whether a. transaction would “cause substantial injury” to U.S. industries, id. § 635(e)(1)(B) — when determining whether to approve or deny an application for financing. Congress, moreover, explicitly directed the Bank to “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.” Id. § 635a-2. Congress therefore left it to the agency to determine how “adverse effects” should be analyzed, and the exportable goods screen represents the agency’s judgment as to matters within its area of expertise. Cf. Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (applying Chevron because of, inter alia, the “interstitial nature of the legal question” and the “related expertise of the Agency”).
On the other hand, the 2007 EIPs plainly are not the product of “either a notice- and-comment rulemaking or a formal adjudication, the usual suspects for Chevron deference.” Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1266 (D.C.Cir.2008); see also Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C.Cir.2007) (“If the agency enunciates its interpretation through notice-and-comment rule-making or formal adjudication, we give the agency’s interpretation Chevron deference.”). Though “ ‘the want of notice and comment ‘does not decide the case’ ” against Chevron deference, see Barnhart, 535 U.S. at 222, 122 S.Ct. 1265 (quoting Mead, 533 U.S. at 230-31, 121 S.Ct. 2164), it also is not certain that the 2007 EIPs carry the force of law. Instead, the EIPs might more accurately be described as non-binding internal guidelines — akin to “ ‘interpretations contained in policy statements, agency manuals, and enforcement guidelines,’ ” which historically are “beyond the Chevron pale,” Mead, 533 U.S. at 234, 121 S.Ct. 2164 (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)) — rather than the formal and binding legislative rules that usually benefit from Chevron deference. See Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 801 (D.C.Cir.2002) (“[E]ven if an agency has acted within its delegated authority, no Chevron deference is due unless the agency’s action has the ‘force of law.’ ” (quoting Mead, 533 U.S. at 227, 121 S.Ct. 2164)).
Ultimately, then, this Court finds itself at the same impasse as Judge Boas-berg in ATA regarding what level of deference is owed to the Bank’s interpretation of the Bank Act through the EIPs. See ATA, 878 F.Supp.2d at 72-73 (examining, but ultimately not deciding, whether Chevron applies to the exportable goods screen). Arid like in ATA this Court finds that it is unnecessary to resolve the enigmatic Chevron question because “to hold that an agency decision ‘do[es] not fall within Chevron is not ... to place [it] outside the pale of any deference whatever.’ ” Fox v. Clinton, 684 F.3d 67, 76 (D.C.Cir.2012) (quoting Mead, 533 U.S. at 234, 121 S.Ct. 2164; alterations in Fox). Instead, even when an agency’s interpretation of its governing statute is not entitled to Chevron deference, courts still .give credit to agency interpretations to the extent such credit is due. See id. Specifically, consistent with the Supreme Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), “ ‘[t]he weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” Mead, 533 U.S. at 228, 121 S.Ct. 2164 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161; second alteration in Mead).
After consideration of the Skid-more factors, this Court, like that in ATA, finds that the exportable goods screen deserves considerable deference. See ATA, 878 F.Supp.2d at 73 (Skidmore “considerations counsel in favor of lending significant weight to the interpretation of §§ 635(b)(1)(B) and 635a-2 set forth in the [2007] EIPs”). Though amendments have occurred from time-to-time to reflect new considerations imposed by Congress, the Bank has used comprehensive EIPs in some form since 1979 as a framework for evaluating potential transactions. See AR at 1368-69. During this period, the Bank accumulated decades of expertise regarding the airline sector and other industries, and critically, the Bank has long used that expertise to develop various procedural filters, including the exportable goods screen, that block from further in-depth analysis categories of transactions that the Bank, in its considered judgment, deems to be unlikely to produce a substantial adverse impact on domestic industry and employment. See id. at 1375. These procedures, moreover, are crafted within the sparse guidelines provided by Congress regarding how the Bank should consider the various competing statutory mandates in the Bank Act, which, in turn, gives the agency substantial discretion to use its expertise to fill in those gaps as it sees fit. See ATA, 878 F.Supp.2d at 73 (“[T]he question of how ‘adverse effects’ on domestic industry and employment should be identified and weighted is squarely within the category of inquiries the Ex-Im Bank’s expertise puts it in the best position to answer.”). Thus, the Court concludes that, at the very least, the Bank’s interpretation of the Bank Act through the exportable goods screen, which “represent[s] the culmination of multiple generations of Bank officials’ expertise,” id. deserves significant deference.
2. The Bank’s Use Of A Categorical Screen Generally
Before reaching the merits of the exportable goods screen itself, the Court first must address Plaintiffs’ argument that any categorical screen that prevents in-depth economic analysis for certain transactions is inconsistent with the Bank Act because such a screen does not, in and of itself, afford “full consideration” to the factors mandated by Congress. See Pis.’ Mem. Opp’n Mot. Summ. J., ECF No. 36, at 19; id. at 28 (arguing that the “exportable-good screen was effectively a refusal — announced in advance — to consider statutorily mandated factors in the vast majority of transactions that the Bank approved”). Indeed, in many ways, Plaintiffs’ complaint appears to be primarily that the Bank should never use categorical screens and should instead subject all, or maybe just nearly all, pending transactions to in-depth economic impact analysis. The Court finds that such an argument is inconsistent with both the Bank Act and the prior court decisions addressing this issue.
Specifically, as Judge Boasberg recognized in ATA, “multiple provisions of the Bank Act contemplate [the possibility of] categorical decisionmaking.” ATA, 878 F.Supp.2d at 74. For example, § 635a-2 requires that the agency “implement such regulations and procedures as may be appropriate to insure ... full consideration” of adverse effects, 12 U.S.C. § 635a-2 (emphasis added), which indicates that the Bank was not just permitted to develop a policy for making “adverse effects” determinations, but rather that it was expected to do so. In addition, § 635(e)(7)(A) provides that certain procedural requirements apply only “[i]f ... the Bank conducts a detailed economic impact analysis.” Id. § 635(e)(7)(A) (emphasis added). Congress’s use of the conditional language “if’ strongly suggests that detailed economic impact analysis is not expected to be performed for every financing decision, which, in turn, implies that the Bank may create procedures for distinguishing between those transactions that require detailed analysis and those that do not. See ATA, 878 F.Supp.2d at 80 (“Nothing in § 635(e)(7) supports Plaintiffs’ contention that the Bank is obligated to perform detailed economic-impact analyses for every transaction.”).
Further, the D.C. Circuit in Delta I, in reliance on the plaintiffs’ litigation position there, appeared to treat this question as a foregone conclusion accepted by all parties:
The d