Citations
- 85 F. Supp. 3d 436
Full opinion text
Re Document Nos.: 12, 14
MEMORANDUM OPINION
Gkanting Defendants’ Motion for Summary Judgment; and Denying Plaintiffs’ Motion for Summary Judgment
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 (“EGA”) 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 Export-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.
This series of litigation began in 2011, when Delta, ALPA, and the Air Transport Association of America challenged the Bank’s issuance of loan guarantees to Air India for the purchase of certain Boeing aircraft. The Bank approved the challenged Air India commitments by applying the then-operative 2007 EIPs, which included an “exportable goods screen” that categorically excluded from detailed economic impact analysis any proposed transaction that would lead to the foreign provision of services, such as airline services, rather than the foreign production of exportable goods. After the parties filed dispositive motions in that case, Judge Boasberg issued a decision granting summary judgment to Defendants on the basis that the Bank’s use of the exportable goods screen to approve the Air India transactions was “neither arbitrary and capricious nor contrary to law.” Air Transp. Ass’n of Am. v. Export-Import Bank ("ATA”), 878 F.Supp.2d 42, 47 (D.D.C.2012). On appeal, the D.C. Circuit reversed and ordered that the matter be remanded to the Bank, without vacating any of the Bank’s actions, for further consideration. See Delta Air Lines, Inc. v. Export-Import Bank (“Delta I ”), 718 F.3d 974, 978 (D.C.Cir.2013) (per curiam).
Specifically at issue in this action — one of three separate lawsuits brought by Plaintiffs currently pending before this Court — are the Bank’s actions on remand from Delta I, which Plaintiffs challenge, here on both procedural and substantive grounds. 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.
II. 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)(1)(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 tails 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. 95-481, § 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. § 685(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)(i). 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 “[tjhis 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).
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 368-73. 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 371. 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 (ie., airline seats), not exportable goods. See ATA, 878 F.Supp.2d at 77. The Bank revised its EIPs in 2007 but retained the exportable goods screen. See AR at 356-64 (2007 EIPs). Thus, from 2001 to 2013, when the Bank again revised its EIPs and adopted the 2013 EIPs and Guidelines, see id. at 441-55 (2013 EIPs and Guidelines), the Bank did not conduct in-depth economic analysis regarding the impact of its aircraft financing transactions.
C. The 2011 Air India Transactions
Taking a step back, in 2006 the Bank received an application from Air India for two final commitments and two preliminary commitments for loan guarantees totaling almost $6.3 billion that would support Air India’s purchase of certain Boeing aircraft. See id. at 33-34. The Bank’s Board approved these transactions on September 28, 2006. See id. at 239-41. Over the next five years, the 2006 preliminary guarantees were converted into final com: mitments by a series of unanimous Board votes, and on September 30, 2011, the Board unanimously voted to approve the fourth and fifth conversions of the 2006 preliminary guarantees and to approve a new preliminary commitment. See id. at 278, 352-53. Specifically, the two final commitments were for “loan guarantees to be issued to a commercial lender (to be chosen by Air India) for loans of up to $1,273 billion for the purchase of new Boeing 787 aircraft by Air India,” id. at 403-04, and the preliminary commitment was for loans of up to $2.1 billion. See id. at 340, 353. Because the exportable goods screen was in effect at the time of these financing authorizations, the Bank did not perform in-depth economic impact analysis before making any of the commitments.
D. ATA, Delta I, And The Bank’s Remand Responses
As noted in the introduction, in 2011 the Air Transport Association of America, ALPA, and Delta challenged the Bank’s loan guarantee commitments to Air India. See generally ATA, 878 F.Supp.2d 42 (D.D.C.2012). After the parties filed dis-positive motions in that case, Judge Boas-berg 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 I, 718 F.3d at 975. Instead, the 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 (in) 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 365-98 (Response One), 399-440 (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 365. 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 399, 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 404.
E. The Present Litigation: Delta IV
On January 10, 2014, Plaintiffs filed the present lawsuit, Delta IV, challenging the sufficiency of the Remand Responses on both procedural and substantive grounds, including that, among other things, the Remand Responses are impermissible post-hoc rationalizations not properly before the Court, Response One fails because the exportable goods screen violates the Bank Act, and Response Two fails because the Bank’s analysis is arbitrary and capricious. As a remedy, Plaintiffs request that the Court vacate the loan guarantees issued by the Bank in conjunction with the Air India transactions. Plaintiffs and Defendants now 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 Remand Responses should be excluded from the administrative record as post-hoc rationalizations, but even if considered part of the record, the responses should be rejected as arbitrary and capricious and contrary to the Bank Act and the Reauthorization Act. In addition to opposing each of Plaintiffs’ arguments for summary-judgment, Defendants move for summary judgment on their own behalf by arguing that, among other things, Response One demonstrates why the exportable goods screen is consistent with the Bank Act, and Response Two demonstrates why the Bank’s approval of the Air India transactions was not arbitrary and capricious. Thus, Defendants ask the Court to find that they fully satisfied their obligations under the Delta I remand order.
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 the Bank’s Delta I Remand Responses as part of the administrative record, or whether either of these remand papers must be excluded as a post-hoc rationalization. Second, after concluding that both Response- One and Response Two are properly part of the administrative record, the Court considers the sufficiency of the Bank’s justification for the exportable goods screen, as explained through Response One. And third, the Court addresses Plaintiffs’ challenge to the Bank’s economic impact analysis of the Air India transactions in Response Two. Ultimately, the Court concludes that Defendants acted reasonably and in accordance with the relevant statutes at all times, thereby satisfying the Delta I remand order through both responses. As such, the Court will deny Plaintiffs’ motion and enter summary judgment in favor of Defendants.
A. Whether The Delta I Remand Responses Are Properly Before The Court
A threshold issue that will dictate the rest of the Court’s analysis herein is whether Response One and Response Two are 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 either to explain how its exportable goods screen “square[s] with the [Bank Act’s] requirements,” or to “adequately consider and explain any adverse effects that the[ ] ... Air India loan guarantees have on U.S. industries and U.S. jobs.” Id. Consequently, the Bank prepared Response One, which attempted to justify the adoption of the exportable goods screen, and Response Two, which attempted to explain why the Air India transactions did not result in substantial adverse effects on the U.S. economy. Plaintiffs now object to the Court considering both responses as part of the administrative record on the basis that the Bank’s actions constituted forbidden post-hoc rationalizations. See Pis.’ Mem. Supp. Mot. Summ. J., ECF No. 12-1, at 23-30. Due to critical underlying differences between Response One and Response Two, the Court addresses each separately.
1. Response One
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 post-hoc 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. 12-1, at 23. 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 “áuthorizing 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. 14-1, 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 380. Response One also makes clear that it represents “the Bank’s” experience, judgment, analyses, and conclusions, see, e.g., id. at 374, and it was signed and published in the name of the “Expork-Import Bank of the United States.” Id. at 380. 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].” AR at 1143 (agenda for April 17, 2014, Board meeting). Prior to the vote, the Bank’s staff recommended that the Board adopt the Remand Responses “in recognition that [they] 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 1144; see also id. at 1144-46 (April 9, 2014, Board Memorandum).
On April 14, 2014, Plaintiffs submitted a letter and supporting materials to members of the Board “urgfing] the Board to reject the [remand papers].” Id. at 1147, 1154. The Bank’s staff reviewed Plaintiffs’ materials and informed the Board that this submission “repealed] 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 1147. Accordingly, the staff advised the Board that the materials did not “raise[] anything new that warranted] 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. Id. at 1311. 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. 18.
In determining the propriety of 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 Chenery, 318 U.S. at 95, 63 S.Ct. 454 (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) (“[A]bsent 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 (Mar. 9, 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 814, 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.”).
2. Response Two
Although the Board unanimously voted to ratify and adopt both Remand Responses at the same time, a different analysis is required for Response Two. This is because unlike Response One, which attempted to justify the exportable goods screen that the Bank used to ap-. prove the Air India commitments, Response Two provided an alternative justification for approving those commitments separate from the 2007 EIPs. As a result, the Court cannot say that Response Two provided an “amplified articulation” of the agency’s reasons for adopting the exportable goods screen and, in turn, for originally authorizing the Air India commitments. Alpharma, 460 F.3d at 6. Rather, Response Two offers a new reason for why the agency could have approved the commitments irrespective of the exportable goods screen. Thus, under most circumstances, Response Two would run afoul of the prohibition on post-hoc rationalizations because it offers a justification for authorizing the Air India commitments that was not considered by the agency at the time the decision was made. See, e.g., State Farm, 463 U.S. at 50, 103 S.Ct. 2856 (“It is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”); Nat’l Oilseed Processors Ass’n v. Browner, 924 F.Supp. 1193, 1204 (D.D.C.1996), aff'd in part and remanded sub nom., Troy Corp. v. Browner, 120 F.3d 277 (D.C.Cir.1997) (a prohibited post-hoc rationalization occurs when an, agency “presents] a new basis for its action,” rather than merely offering a “clearer or more detailed explanation” for its action, only the latter of which courts usually may consider on remand).
The Court, however, is not convinced that such a conclusion is appropriate here. In Delta I, the D.C. Circuit did not vacate the Air India commitments or require the Bank to reconsider or re-open its decision-making concerning these loan guarantees. In this context, if the D.C. Circuit did not want the Bank to provide an explanation on remand that the agency did not consider at the time of the original authorizations, the court could have given the Bank a simple remand option: attempt to justify the exportable goods screen, and if you cannot do so, re-decide the Air India commitments using a new analysis that is consistent with the Bank Act and that does not rely on the exportable goods screen. Such a remand order would avoid a post- ■ hoc rationalization by requiring the agency to either further explain its original justification (ie., the exportable goods screen) or make a new authorizing decision on remand using a different justification; the agency could not, however, provide a new justification for its initial decision to authorize the Air India commitments. But Delta I did not take that approach.
Instead, the D.C. Circuit gave the Bank the options on remand to “adequately consider and explain any adverse effects that these particular Air India loan guarantees have on U.S. industries and U.S. jobs,” which is what Response Two attempted to do, “or [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. By granting options beyond just further explaining the exportable goods screen, the circuit court permitted the agency to provide an alternative, post-hoc justification on remand for the Air India'commitments without reconsidering the decisions themselves. Thus, given Delta I’s explicit pre-approval of the post-hoc option that the Bank attempted to take through Response Two, this Court finds that it is proper to consider here the agency’s response. 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.”). Indeed, any other conclusion would place this Court in direct conflict with Delta I by ignoring a potential alternative justification for the Air India commitments that the D.C. Circuit evidently wanted a district court to consider when evaluating a future challenge to the agency’s remand actions, which is exactly the type of lawsuit now before this Court.
B. Response One: Plaintiffs’ Challenge To 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. 14-1, at 30. Plaintiffs, however, disagree that the exportable goods screen represents the culmination of rational agency decision-making and instead contend that the screen cannot be reconciled with the Bank Act. See Pis.’ Mem. Supp. Mot. Summ.'J., ECF No. 12-1, at 37.
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. Supp. Mot. Summ. J., ECF No. 12-1, at 38 (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.”). Such failure, Plaintiffs contend, renders the Bank’s decision to approve the Air India commitments 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 Air India transactions. See Defs.’ Mem. Supp. Mot. Summ. J., ECF No. 14-1, at 37-38. 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. 14-1, at 22. Plaintiffs, however, assert that the two-step Chevron analysis is inapplicable. See Pis.’ Mem. Supp. Mot. Summ. J., ECF No. 12-1, at 36.
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) (“[Ejven 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 Boasberg 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). And 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 368-69. 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 375. 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 “represents] 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. Supp. Mot. Summ. J., EOF No. 12-1, at 37 (arguing that “the exportable-good screen does not contemplate any examination of economic impact in services transactions at all”). 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 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 .... 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[.]
Delta I, 718 F.3d at 978 (citation omitted; third emphasis added). In addition, given the volume of applications the Bank receives each year — approximately 3,800 in Fiscal Year 2012, for example, see AR at 374-75 — it would be nearly impossible for the Bank to accomplish its statutory mission of promoting U.S. exports if it were required to perform in-depth economic
analysis for every transaction, or even for a significant percentage of transactions. See id. at 374 (detailed economic impact analysis “can substantially delay the processing of a transaction and jeopardize the ability of the U.S. exporter to capture the export opportunity”); id. at 374-75 (given the thousands of applications the Bank receives each year, “the Bank would not be able to accomplish its mission of promoting U.S. exports if it were to perform a ‘detailed economic impact analysis’ on every transaction, or even for a significant percentage of the transactions”). Indeed, the Bank very likely would grind to a halt if such an approach were mandated by this Court, which cannot reasonably be considered consistent with the Bank Act’s purpose. See, e.g., 12 U.S.C. § 635(b)(1)(B) (it is “the policy of the United States ... to support United States exports at rates and on terms and conditions which are fully competitive with exports of other countries”); cf. United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940) (“When [one possible statutory] meaning has led to absurd or futile results ... this Court has looked beyond the words to the purpose of the act.”); United States ex rel. Davis v. District of Columbia, 34 F.Supp.3d 30, 49 (D.D.C.2014) (“When faced with two potential interpretations of the statutory phrase ..., one of which leads to an absurd conclusion, the Court is on firmer ground interpreting the statute to avoid that absurdity.” (citations omitted)).
The Court, moreover, simply is not persuaded by Plaintiffs’ argument that the Bank, by applying a categorical screen rather than performing individual analyses, fails to consider a factor required by the Bank Act. Instead, this Court agrees with ATA, where Judge Boasberg rejected a similar argument, explaining that
[b]y instituting a series of screens intended to identify those transactions most likely to pose a significant risk of “adverse effects,” the Bank “ensure[d] that all transactions are screened for economic impact implications” while simultaneously reserving its limited resources for “those cases that require further economic impact analysis through a more extensive process.”
AT