well your argument first this morning in case eight hundred forty one the food marketing institute versus the argus leader versus argus leader media mr young mr chief justice and may it please the court before i turn to why the co should jettison the national parks definition of confidential and instead restore that word's plain meaning as used in exemption for of the freedom of information act let me address just to see ability respondents brief expression doubts about redress ability but redress ability and the other two requirements of article three standing are established here first are injury in fact is the disclosure of our members store level sales information that they keep secret not if the government decides that it doesn't want to give it we already have a case that says is the government voluntarily chooses to disclose your stock you can't appeal so here the government chose not to appeal it chose by definition to turn it over why aren't you bound by that decision we're not bound for it because the intervention that we successfully moved in the district of south dakota made us a proper party we had an interest in that allowed us to intervene  if you had been a part of if you had been the original asker we have a case that says crystal city that if the government chooses to turn it over you can't appeal and the government did not make that choice so they're really fighting for they haven't made the choice on this exemption they've made the choice because of the new law isn't the proper course for them to go back to the district court with a motion for reconsideration or for them to petition the court or for you to go to the court or for r or for someone else to go to the court and say they have to turn it over no you honor the government in this case made a number of steps that make clear that our redress ability is not only likely but certainly not let me start because standing at the time was not certain until the district court relieves them of the earlier judgment telling them that exemption three didn't apply well that that premise i think is a mistaken one and if you look at pages thirty to thirty one of the government's brief for example they make clear that they are not pressing exemption three argument here they are not requiring this court or even asking this court to reconsider the section two thousand eight hundred c argument on which the eight circuits first that's the basis for their refusal to turn it over now that the basis for their refusal to turn over now is an exemption for basis that the information they can speak for themselves but i thought agree when they chose not to appeal they chose not they chose to follow the order of the court to turn it over there are a number of things that differentiate this from a situation like that for example instead of voluntarily disclosing it which would be what they would do if they decided to follow it they facilitated our intervention by alerting us to the possibility of judicial intervention they even when we did intervene told the district court they told the federal court as they've told this court we will not release that information unless a final judgment in the judicial system requires it do you understand the government to be firmly committed to not releasing the information that's required to yes that's what i noticed them on your side your side of the lectern and i'll speak for them but that's what they have represented not only to the district court but to this court now of course they remain free to change their mind and that would be a different situation but the question for standing at the time when we invoked the appellate jurisdiction of the federal courts was what we'd have a likelihood of relief and the answer is yes and right now based on the solicitor general's brief that was the thing that my friend on the other side invoked in his brief to this court that would be a moot in this question and of course mootness can be established only if it's impossible that this court's reversal would give us meaningful relief the opposite is true if this court reverses the only thing that will lead to our information certainly being made public will be destroyed and that's why all the requirements article three standing are met but it won't be destroyed because they have a twenty eighteen c a well the fact that as in military in which there was an exemption seven argument pending this court took it to decide exemption two sure there's a twenty eight hundred see argument that in theory would be pending if this court were not persuaded by anything we say there's been an intervening change in the war wrong on twenty eight c they have to comply with the stand judgment under exemption for no  i disagree and i will allow my friends from the government to explain their position but they're making an exemption for argument based on the what they say in part b to they're trying to piggyback their appeal on you know i disagree with that as well just  sort of my or i think what the government is saying is we've had four decades of the highest level promise of confidentiality that the government can make to its citizens and that is that this kind of confidential information we will protect the confidentiality of it and for that reason even if the motivation that they had back in one nine hundred seventy nine for starting down that process turns out to be wrong nonetheless the promise of confidentiality which exemption for and not exemption three here if there were willy nilly ad hoc promises of confidentiality in which low level employees could wave a wand and say confidential confidential but i think that what this court has repeatedly said i'll mention the department of justice versus the reporters committee case where the court says yes for you as basic policy focuses on the citizens right to be informed about what their government is up to that's a direct quote but then the court immediately says that purpose however is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct and so here what we see is a choice when a snap beneficiary receives an allocation from the government their choice to shop at this grocery store rather the one across the street is in no sense government action it is the unmediated decision of third parties it tells you in other words an awful lot about mrs smith or mr jones and their choices and it tells you a lot about how those two grocery stores market and sell and what their selection i don't doubt that your herd do i can't quite maybe from giving out information and here you are attacking a masking does a cause you injury not the cause you injury you have be stops them from getting out the information if you win or nay you don't get it if you lose on day you don't get it if he doesn't stop them from giving out information if you you get it if you don't know if it works that the result is the same no matter how we decide your case we just don't know about b now if i got that right and if i got that right i i don't know a standing case right in point or a mood in this case right in point i'm not sure what to do but well if i'm understanding you justice prior i don't think it raises either one of those just to see ability questions because the court can have in reserve many grounds that the lower courts for example may not have addressed in milner i mentioned exemption seven was still there enough exemption seven was well taken exemption two would have been necessary the court granted  resolve what exemption to meant and it granted in this case to resolve what exemption for means and if you do it and you problem with that will there is then the big difference is that the government chose not to appeal the ruling on exemption for so it exceeded to turning it over under that exemption and under crystal city we said they they or you can't appeal that and you admit if that was all of it and they had chosen to turn it over you would get it so now the question is can they and they and you do an end run around crystal city by simply saying no we're really not going to turn it over because of something else but we really didn't want to challenge exemption for at all and we were going to turn it over because we didn't really think the pricing information was confidential back then but now we think we're going to change our mind this is how i'm reading the argument and so we're going to piggyback on a private entity raising an issue that we should have appealed to justice so my i don't believe the government's piggybacking at all there here is an amicus and it is weak the food marketing institute why why can you without getting stuck in crystal city well because because they've said i won't turn it over but they're bound to turn it over right now by a judgment below and they haven't asked the court below to reconsider that judgment i think it's a simple you raised exemption three they lost a change of law has happened they should have moved for reconsideration and they didn't so why aren't they stuck because we intervened and the opportunity to conclude that we are not a proper party to be able to make any of these merits inquiries has long since past mr young man as your question about your substantive standard you and some points in your brief say that the question is simply whether the information is private private synonym for confidential and other points in your brief you talk about whether the information is kept private to me those two things are a little bit different that the idea of keeping something private is not just that the information isn't out there in the world but that you are doing something to make sure that the information doesn't get out there in the world so which do you think is the right approach in this case i'll readily agree with the latter our argument is not that simply smarting something or stamping it confidential does the trick we've had twenty seven years with the d c circuits critical mass case which essentially adopts the position that we think correctly defines the entirety of exemption for in critical mass cases when a party wants the release of some information that a party like us might say that's are confidential commercial information more is required and you can be held to fail your exemption for argument if you don't illustrate how you protect the information so for example what is relevant and what was asked even in this very case in which these questions were presented to the trial court do you run a bind it with non disclosure agreements do you have security in place so that it limits the number of people even internally who have access to it how do you make sure that it is not supplied accidentally in litigation for example how in other words do you make sure that it doesn't become public have you made sure that comparable information has not been made public in other forms and so there are critical mass cases decisions from the d c circuit courts and from the tenth circuit court that apply that that look to those exact types of questions and say well we can find something rather like this in publicly available information already your exemption for argument so how does that delve tell with the s g s position that if they ask you to turn over something confidentially and you seem to be arguing that earlier that that's a not that that makes it confidential because you've just said to me something quite different which is it's not the government's request or promise to keep it confidential but is it in fact kept in confidence the way you've defined so how do you don't tell that to well i would say that even if the government gives us a promise of confidentiality that fits within the definition of what confidential is we now have given something to the government in confidence if we nonetheless publish if we're sloppy with it if we release it in some other way then we have breached the confidentiality ourselves but i would argue that someone like that is no longer protected so the government's overlay is really not necessary  manifestation of what's called men who put only a point of evidence not a point that binds i guess i'm not sure what the point of evidence means you say a manifestation district court judge could look at that as among many factors yes i would say that if the government in a proper form of the government binds itself here through notice if you leave it if you give this information to your employees there's no promise of secrecy well then defined what confidential meant also and it recognized that confidential does not mean that nobody knows it it means that you have to keep it within a limited universe mr chief justice i reserve the balance of my time thank you coun even if we have every right to release it we're not going to release it even if we have every right to do so it would help take a look at footnote five twenty six of our  would there is a policy interest in u s d a if they were writing on a clean slate going prospectively that they may well release this information they said they'd likely what however as we explained footnote five we said if congress had not amended section twenty have a question here and if you're going to tell me i don't care if two thousand and eighteen never appeared doesn't appear doesn't exist we still won't release it which is your right in the absence of i would say that's partially right the reason we're not releasing it is because we have made assurances of confidentiality at pages thirty to thirty one of our brief we explain that that was motivated by section twenty eight hundred c r t so we don't want to happens if twenty was objective look reasonable and wide of the government's assurances for forty years to understand the government to be providing insurance of confidentiality and we understand these retailers have done so to be relying on that history but we're not going to release it as a matter of good young you are going to tell court we will do so but if we have discretion to do wait a minute there is no discretion let's assume there's no twenty eight c m and you litigated the exemption three you lost you litigated exemption for you los order to i think there's confusion in the question twenty eight hundred c prohibits the government from releasing it does not so if twenty thousand seized taken off the table we still have discretion and we are exercising our discretion in a matter of good government now but one more has recognized once you didn't appeal forget about the amend you didn't appeal would you have had to turn over the material no so long as a party is a p r a party they became a party is appealing this an indivisible judgment it's not like a money judgment that you say the government is five dollars in party a ten dollars and if the government you know doesn't appeal to five dollars this is the same thing if any party can bring that up and if the judgment below requiring the government and the general disclosure is taken off the books we're no longer bound perhaps in your remaining time you could turn to the merits sure we believe that the information here is the store level reaction that is confidential because it's recently understood in context to have been communicated in confidence and held secret now the government has had forty years of expressive of confidentiality embodied in regulations and in a to ongoing dialogue with congress about these regulations showing public despite official yes i think that's right and that is certainly for years general goal but in this exemption only target a particular type of information not general it is information that is private information is obtained outside the government it's about private entities that is either commercial or financial and in that scenario ambit of commercial or financial information congress made the policy judgment that when that is reasonably understood be confidential it should not be  understand your argument mr yang you kind of have two prongs two ways of saying that something is confidential one is just like mr young's or something like it something like and me and the other is this assurances point is that right or manifestations we think that my meaning counted on my right that you are relying here on the assurances point we are because we think it's a little more complicated because this is in our view an objective test and you have to take it in context and context here is more complicated than a normal exemption for case because the government's own actions of paying money is intertwined closely with the information submitted to it which is why we think the easier path in this context is to where there has been forty years of notice and comment regulations by high high level of government signed off write this it has to be the agency administrator that signs off on these that were it subjectively reasonable provides an assurance of confidentiality  when can it be deemed confidential as a matter of law even without such assurances i think this confidential question alternately is a question that requires the actual contact you don't know if information is  confidential without understanding the context in which it's either treated public in the general sphere before it's a pain by the government or understanding how it comes into the government's possession so there are we think as a matter of warm can it be deemed confidential even in cases without government dope oh sure sure and what factors would determine that well that's the first manifestation of what's confidential just to be clear when you have any disagreement with petitioners on how they articulate that first i don't think so except that we think you have to take the full context into account and when you do that here the inquiry is more complicated as i understood your brief and tell me if i've gotten this wrong you're basically saying that the first way of selling confidentiality the non assurances way isn't really met here because what they're seeking to protect is something is information that essentially the government reveals all the time by virtue of its payments is that correct i think it's close we're a little bit more agnostic we think that th a hard question and we're not coming definitively down there are some side questions like is this exactly what the government is doing how close is it these types of nuances i think is what petitioner may be wrong on we may have a small disagreement but ultimately i think what we agree on is in light of the forty years of practice that has occurred here all we're trying to do is live up to what this court said and another for your case the cia versus since the great nations like great man should keep their word and the government is trying to keep its word given over forty years in the most official form possible that we're going to keep this information and this office and assurances point to viewers does it apply only when somebody is voluntarily giving information to the government or might it apply when somebody is mandated to give information to the i think it generally applies no you'd have to look to see whether the government would have authority to the agent the government official who i have authority to make this assurance in a way that subjectively understood to be speaking for the agency but it can apply potentially in both contexts there are hard hypotheticals i think at some edges this case doesn't implicate any of them so i think the court just simply cut through the through the noise and rule quite cleanly mr going this is this is somewhat confusing to me exemption three says congress gets to choose what should not be disclosed but i conquer assist choice what the government will be us confidential and not disclose now you're bringing the government the government qua the executive branch who submit it so long as there is nothing in contacts that suggests that they would understand otherwise when it's provided to the government it would be confidential thank you m likely competitive harm not only is that competitive harm standard fully supported by the common law that prevailed in one thousand nine hundred sixty six when exemption for was enacted the standard has also been ratified by congress for reasons that all explain in  seventy four the d c circuit adopted national parks test with its two prong test including the competitive arm requirement but by two thousand and one there was a clear judicial construction eight circuits had adopted the same t national parks so between two thousand and one today during those eighteen years congress has an active twenty nine statute indorsing the language of and the provision of exemption for and has and has effectively amended exemption for thereby ratifying the national park standard mr loeb this case strikes me as a lot like milner that you have a d c circuit opinion which put some things into the test that may be statutory taxed to not immediately suggest and then there is everybody adopts it you know in milner to all the courts of appeals had adopted it congress had let it remain on the books for quite some time without doing anything about it why isn't this the same thing as that where we did say no we're going to go with the taxed not with this differently well i think the key factor is they all adopt the same two prong standards of national parks and in any standard how it's applied even terms like fraud which are well developed in the law as it's applied to a particular circumstance there's always always going to be some deviation of the courts but ultimately all the circuits have addressed this issue have adopted the national park standard in this to the competitive arm requirement all require a showing of likely competitive harm and that is the standard we're saying that is has been ratified here if you look at some of the statutes that we attach in our denim they are actually limiting the discretion that's under exemption for so is the estes brief points out exemption for doesn't prohibit disclosure it just says the agency has discretion whether disclose or not these additional statutes micro manage that discretion some of them say that when you have discretion you have to withhold some say that when you have the discretion you have to withhold for five years some say when you have discretion you have to correct your honor so in looking at exemptions for you have to look at those words in a textual construction of it will begin by looking at the words and looking how they were you were used in context at the time and we know for exemption for congress started with a common law terms of trade secrets which is by even higher degrees that's another point i'd like to get to that too but when we're dealing with the word confidential justice kagan made the point that perhaps there's that's been placed on it that might be inconsistent with what might appear to be its ordinary meaning and that argument seems to me to have some strength given the fact that exemption seven hasn't been treated by lower  import only explain why why should we give the same word two different meanings when they're virtual neighbors the commonality that even under exemption seven this court in turn to ask the confidential source  think that you had a confidential relationship instead they look for objective factors in our standard here is looking at an objective want to object of harm second the fact that the same word is used in different provisions of the exemption doesn't answer it for example trade secrets has the word secret  you look exemption want to use the word secret regarding national security matters you would say the word secret regarding national security secrets has to be read the same as trade secrets because say trade secrets has a common law meaning and that common law mean and i agree secrets the national security context might be different than they are in the trades secret context but that that's just not helping me with the word confidential so perhaps there's something particular about maybe there isn't no no there's something particular about the exemption seven it talks about  information that information that is furnished under a basis of confidential basis so there were congress want to say it was furnished on a confidential basis it knew how to say that that's not what it says under exemption for instead we have congress adopting these common law terms trade secrets and related confidential commercial information and we're looking at those and those words i knew you would you would look at how they were used in one thousand nine hundred sixty six under the common law and we know trade secrets required under the common law a showing of competitive harm and for the restatement you know that this other second box of confidential business information also required a showing of competitive harm what do you do what about i mean in reading some of these cases wasn't national park so much that i think it caused the problem but other cases that sort of run with that is some say well the competitors have to use this in an affirmative way and i don't know where they got that out of the statute so would you be satisfied if we were to simply say well they had the bright idea their confidential information is information that is legitimate for a confidential for a legitimate reason it's confidential for illegitimate reason release would hurt the company or release would hurt the government and then we and of course there has to be harm i mean business related harm to the company now that would stop you know i can imagine easily case where there's information about who you sell to and who you don't sell to and of course you want to keep that quiet because you give the impression that every sane person in the world buys your product and this would show that's not true but we don't know whether people will take advantage of that or not but they might so it's hard and it's legitimate is that good enough in your opinion y honor so yes a national parks task requires a likely showing of competitive and it to other cases that have gone beyond it take likely showing of competitive maybe a tarm to business maybe when people find out about this they just will stop buying it though no new person will enter the market so i don't see the harm being any different there and i asked the question say is it necessary to use with the word harm that word competitive rather than a more general board like business business related trade secrets which is the brother of this category i mean i'm curious if you can give me a yes or no answer it would really reasonable possibility of it that has been thrown out as why is that not enough under the common law and under the restatement there was always a requirement showing a likely competitive harm or a likely harm of sorts so having just a reasonable possibility seems to be sort of more of a scintilla argument which which would allow so much more information here to be withheld it's not such a strong burden to say are you saying you have to show there will be actual computer i'm just there is a likelihood of of competitive harm and that standard to show harm was speculative at best and marginal at best so if they did they didn't meet whatever low standard there would you could articulate but the requirement of some non insubstantial likely harm i don't think  interest protected and exemption right in the courts will have to fill out what that means on an exemption not by exemption basis and what's required and whether it's the government who believes it or it's something that's e you give me your best shot on a textual argument for your position so putting aside subsequent congressional inaction put in the side how many courts have adopted this test just sort of give me your best shot for why this is the right way to read the text what would you say i would say you have to look at words in context in that their neighbors inform their meaning and as this court has said under and when it's looked at other f law to help inform it that language means were a plain language if they just want to look at dictionaries even the dictionaries are ambiguous but the common law tells you at the time that the congress chose the word trade secrets which has a common law meaning which requires competitor farm and the restatement as well so there was a second category of business information and it was treated the same way under the same standard to require competitive harm so you look at the plain language there are trade secrets in financial commercial information that's confidential and understand th were terms of art that were used in the common law and these words in fall from the sky and this randomly appeared or they chose common law terms trade secrets and that the closely related a commercial confidential information in the privileges we're going to protect traits secrets and confidential business information the problem i have is that the common law didn't use the willie didn't borrow a term of art this  trade secrets and financial and commercial materials but that's not how the how the common law used the common law used other words like private commercial information or business information trade secrets and confidential commercial commercial financial information and for both of them they required some showing of signet of competitive harm it wasn't a turn on on that particular unilateral view so i think that you'd agree though that one when congress uses words that are different from common law terms that are invested with meaning we usually presume that it means something different and i think here the common law developed in a way where they're talking about a class of information and it's clear that congress is referring to the act passed information it's not so this is not a term of art we have like one word which triggers that you are clearly talking about that same second box of information which has been protected by the been is being referred to here by the reference to commercial and financial confidential information you'll see again and again in the courts and the rules in sealing rules in the federal rules of procedure like e speak to the same classes of trade secrets and confidential business information and all of them require some level of harm none of them just turn on what happens if the company affirm a says to a group of customers we would like some information from you which is private it will help us in our business and they say well no i don't want this  it we promise it won't and if it ever should will pay a lot of money lo and behold it's made public it doesn't hurt them commercially in the term of competition but it does hurt them because they have to pay a lot of money how does that fall within the statute as you understand it why i mean your analogy speaks to a private party getting a company getting private information say that's right and then they give it to the government and they use it in you know all the rest takes place as it is so there could be a breach of contract in that situation you know a contract and there could be damages under this country but we're not a class of information all right does the government does that fall within the exemption if the government gets the information does that fall within the exemption because it was confidential information the company was harmed through its release it's just hard to say that that was competitive harm they may have had to pay forty two million dollars i don't know how much but it was home and it was confidential so it literally within the statute i want to know about that i don't think it would be within the statute the statutes referring to commercial and financial information and it's obtained though it is commercial and financial information that's what it is i just you you do go that way i'll just assume it into my hypothetical  still focusing on what words you don't have to write this but i might and i have and i have to write down something by the word harm and that word that word competitive alarm is still giving me some trouble and  that's what i'm asking this question what was it would be a s to be a pain from a person and you look at whether there was harm to that party who is who was obtained from which would be the the company or and if it was information that pertain to the individual it could perhaps be protected by other provisions like the privacy act two extends to a large degree of information regarding a particular individual citizen which is possessed by the government which pension p disclose that there are other exemptions that cover information which goes to a private information of an individual here we're talking about commercial and financial information it was enacted together with trade secrets both being common law terms and to be inappropriate to sort of expand it to a global confidentiality  well that would dramatically alter the scheme for the other one which congress has reacted exemption for for twenty six times again and again after there was a universal reading of this provision first of all  l here says that this information isn't important doesn't show what the government is up to how the government spends its own money is critical information that the press and the public need to know the type of information that has been used for claimed confidential by the party saying look this reveals our side of the business two sides of the coin you spend the money we submitted we did the work we don't want you to reveal that that would be a dramatic change of the way that for it for you has been applied for more than forty years also to the regulatory regime that the new version of twenty eight hundred c changes the law about this case at all it's prospective this is an information that was submitted under that amendment and we don't think that that amendment also applies to the application process not to be the monthly an annual data that we're we're seeking here but as the earlier questions pointed out if the government wants to see relief and remain and if you rule for us then it goes back they can go to the district court before the information is disclosed and say we want to reopen the judgment based on the change of the law and we could litigate that here that's not something to be litigated in this court the meaning of twenty eighteen c so i don't think that they did that with the eighth circuit was correct and how to read twenty eight hundred see there was no up no one's asking this court to review that and the new amendment doesn't alter how this court should dispose of this case if there they want to make an argument on remand they are free to do so you seem to be making two distinct arguments about national parks one is national parks is correct to alternatively is even of national parks is incorrect we think we should nonetheless follow it on that second this court's opinion said there wasn't a judicial consensus the one even one the congress would have one way or the other let me take it out from under milner then and just say why if we disagree with national parks the d c circuit is to search and should we nonetheless follow it because this court has long held that when congress reenact the statute or revised the statute that subject to a uniform judicial construction that you presume that congress understands and knows that that construction has adopted it  to whether disclosing the information will harm the government from in the future being able to get information on the d c circuit applying prong one came up with its volunteer involuntary task which hasn't been followed by all the circuits but th application of prong one we're saying what has been uniformly adopted at least since two thousand and one is the two prong test one is to that first prong as to the harm to the government and the second construction answer was here in eighty nine different uniform circuits about the two prong test that you know congress knows about it it is it is now reenacting this statute and that's what this court said this time in house and there was a decision and it was they took they they reenacted that same language and put it into we the american invents act right and this court said the congress is presumed to know the prior judicial construction and this is assume to have adopted it as one finger and any we've barred from doing that that's a significant factor in that when this court has found that ratification theory applies it has even gone on to sort of look a new at the statute because it it looks it recognizes that congress knows about the prevailing view and has adopted it by amending the statute and not changing it or not changing in the relevant sense just does that argument depend upon how plausible this interpretation would be as a matter of first impression justly right i don't think that that that is part of the calculus this court it's had the is is there been a uniform construction you know and they presume congress is that we're here we know congress was aware of it and here we don't we have congress and acting twenty nine different statutes knowing about the uniform construction since two thousand and one so i mean if there were a statute that says something has to be done within thirty days and a court said thirty really means fifty and all the other courts fall in line  would say all right that congress has and congress and next statutes related to that would say well congress has implicitly ratified them i believe that's a hypothetical your honor but i shapiro and house and again and again that when you take language from one spot and you put it into another reenacted it contains the same meaning as under the common law was competitive harm part of the claim itself or was  information the courts treated that same confidential business information the same respect you had to show a competitor for wasn't just injury because you could show injury in lots of different ways but you'd have to show actually a competitive injury in the case is there a difference mr lew for purposes of this congressional ratification argument that the court that issue was not the supreme court that it was instead a circuit court it's what this court has said is them just reenact something once or amend the statute once but some so so again let's say we just had district courts we had uniform district court saying thirty days means fifty days that's absolutely for congress that they're after says thirty days everybody in america should know that that really means fifty the average person is supposed to have fair notice of the statutes opens up the books sees thirty days but it fact is supposed to know that it means fifty because a lot of district courts have said so you're saying thirty days versus fifty days i'll give you that that's a much harder case and and rebind of you thank you but but no they don't or don't are tools of interpretation normally take their cue from things like due process and fair notice rather than the other way around where due process and fair notice have to become the exception to our statutory interpretation tools but it is an established statutory interpretation mechanism that when congress reenact the statute and there is a uniform on the d c circuit special situation with respect to for you with all deference to the d c circuit no there's no special deference here we're looking for whether there is a judicial construction in the terms of house and the terms of lower lard and i think it when you have a overwhelming number of the circuits who have uniformly addressed it without any dissenting circuits that whatever that standard means that it's met in that in this circumstance it's really quite thank you mr young i'm sorry mr now mr young you have five minutes remaining thank you mr chief justice just a few points i'd like to make stirps first to start with what confidential means in its relationship to any concept of harm that question of harm asked a very different question that asks why someone keep something secret not whether they keep it secret there is no common law term of art called confidential business information or confidential commercial information it's not that does not appear in the restatement it doesn't appear in the cases that are cited it doesn't appear in any scholarship and it wasn't something that either national parks or any other case before or after it relied on to find some common law heritage it's true of course that when one has a tort action any kind of tort action harm will be something that has to be shown but that does not infuse harm into the very meaning of other elements of the port we know that from cases like carter and br which that even if there were some common law conception it isn't enough for congress to refer to some vague principle would actually have to use that term of art council that begs the question which is we sort of naturally thing that if people are going to keep something confidential that there's a reason for it you don't just say i don't want to disclose because i don't feel like you although some people do  it seems to me that this concept that there has to be a reason for it and that it has to be tied to prisoners and to commercial and financial matters because that's the words financial and confidential financial and commercial matters those are the words of the statute doesn't that naturally infuse the concept with some sense that there's a reason for keeping it a se are reason and i will address that it is will but i think that in this very case it maybe is a good exemplar of course our clients aren't paying for us to pursue this to this level because they just feel like it of course we think they're substantial competitive harm but the question congress asked is not for courts to engage in the prospective speculative assessment of what i'd say the thing is if we read confidential as being confidential in nature which is part of your definition wouldn't think that that is confidential anymore or it's just one manifestation of everybody else's might be and here when you when you have this bucket in exemptions for you start with it being commercial or financial those are limits of course you're right if you can't show that it's commercial or financial information you're not with an exemption for then you have to show it's a pain from a person that's not the government doing it in other words and then lastly it has to be confidential or privileged and all the congress asked the courts to do is answer the objective question does the person who's information the government now has does that person keep this secret and not publicly disclose it and if so the fact of course that likely the reason they do that in many instances is to protect themselves from competitive harm that's not something the courts need to spend two days on a trial with expert witnesses and leaders from industry at all different industry segments coming in to try to persuade a poor district judge to figure out why in the world this information would cause a substantial competitive harm or not harm is not part of the word confidential it's often associated with if you are not a car a harm and some harm i mean some harm because congress doesn't go around protecting people from x where x doesn't cause any harm that would be not there in the statute but it would be a general assumption of congress spoke broadly back to that saying adding to that some are well i have get to it in this sense i think that by opening that door you now are opening  trial courts to have to do the kind of tedious and laborious work that leads to false negatives like this case it really is amazing that something like store level snapp redemption data would lead to a situation in which we had to have a trial at all and you wouldn't have to do it and people aren't likely to press objections if they don't have any harm that's going to befall them so congress solve that problem by saying objective early or i just finish the thought mr chief justice objective  if you have a pattern of keeping this invasion secret and not publicly disclosing it that is the only thing the federal courts are authorized to ask and that gives the government the authority to keep it secret if it so desires thank you counsel the case is submitted