court i'll be addressing the jurisdictional issue and my colleague mr hanken will be addressing the remaining issues in this case this court has jurisdiction to review the commission's renat order and its related reconsideration order turning st to final agency action to remain an order constitutes final agency action because it imposes extraordinary new procedural obligations on petitioners and marks the consummation of the agency's decision making with respect to those those or you can you're free to just stand on what you have is what we're trying very we're trying to give you we've laid out this whole new process this whole new way of thinking about what it is you have to demonstrate  to have your fees sustained under nineteen dollars and we're giving you another shot if you want it you don't have to take it but you probably want to take it because the other options are going to vacate your feet or you can take the shot w giving you the option of taking a shot with the procedures you already have or if you want to make new procedures the way in which you have articulated the choice is very apt here are because it is not a realistic choice if the briefing why the procedures you have in place can be used to process an objection about the fee why can't they wanted to procedures that we have in place are for disciplinary see proceedings delisting proceedings those are different in kind from challenges to do you have any seizures in place for limitations or prohibit their membership on membership because why can't these procedures but your honor why does that work here because here we're talking about a challenge that is different in kind one where sigma and bloomberg have the burden to demonstrate that these challenge fees are invalid and where the petitioners according to the commission have to burden to issue written decisions with respect to each of these missions say that they have them or in our view the ok so now injuries have the burden of proof your honor and your view  the say that the commission disagrees with our right ok those are that's not a difference in your procedures so you have the burden of proof just like you normally do you have i guess you must have decision makers in place and you must have some rules somewhere the sort of the objections to these processes but i don't understand operationally why you cannot and that's the essence of your great big burden argument here well there are two burdens the  be heard with respect to very specific challenges to these fees but even if we did have procedures in place this would still be a momentous task for the petitioners because within the next six month period so a total of one here the main thing here is you just don't have a process for someone to come in and show why they believe this is a limitation around reasonable limitation on access we do not have procedures for applicants who bear the or prohibition on a membership proceeding i assume to be s r o would come forward with some demonstration and why it's made its decision and the other side would respond unless some decision maker will make a that right that would be how a disciplinary proceeding may proceed for example but that is not how a challenge to a fee would proceed because the burden of proof rests with the apple but even if at the margins that it doesn't change the fact that we are being required to undertake a task that is exponentially more burdensome than the one that the commission itself to five years to undertake with respect to just a momentous task and that is sufficient for purposes of finality especially when coupled with the fact that this is the consummation of the agency's decision making process with respect to these procedures there will be no further commission review how would you demonstrate does factors in that and that's all you have to him we would still be on the receiving end of a substantial girded imposed by the commission well and they also said if you don't want to do it you can say we stand on our existing filings and we'll take it and you can do that pretty thing we could your honor but that's not a viable option as you recognize because under these circumstances it's certain that the commission would conclude that the record as it exists is not sufficient to justify these fees the commission ha commission of california versus fir where burke we manage the matter to an agency alle j the court concluded that that was final agency action because there was no possibility that review at that point would interfere with ongoing agency proceedings there was a possibility that this court's review would obviate the need for further agency proceedings and conserve the court's own resources which is very much the case here when we have four hundred dollars pending the challenges and if there were further proceedings in that case any subsequent appeal would raise analytically distinct issues from the appeal then before the court which is the case here as well that even if this court were to disagree this would still have jurisdiction under the class responsibilities under the exchange act and that deliberately of these procedures is distinct from the merits of the underlying the challenges initiated by city men and women birds of a commission says the procedures are somehow deficient ability to appeal its own decision on me man and therefore should be entitled to take an immediate collateral order appeal this court agreed this court likewise afforded that apartment of labor the opportunity to take a class full order appeal from every man order petitions or the fact that system of the and bloomberg don't have standing and that's sufficient to dispose of the room and order on its own i should also note by the way that not all of the challenge ru filing this relate to market data and some of them relate to other types of products like colocation services things we haven't had a chance to discuss but they're not all market data products essentially had a certain point system and later bloomberg began just filing these roughly every two weeks about every new mark every new key filing that most of the exchanges dealt with  and you would have to look at this and as i mentioned before you would have to look at the particular statutes to determine whether association will standing made sense under those pacific standards and statutes and when you have a statute that refers  sigma didn't have standing to bring those proceedings because sigma doesn't buying market data products it doesn't buy co location services with respect to any of the petitioners that offer them it doesn't it's not a they and why s he's market data fees are passed through bloomberg it bills bloomberg and the n y t is all the n y s e petitioner's bill bloomberg customers directly for whatever market data they get through their bloomberg terminals for example and so we work hasn't it's not agreed to by any n y s e fees that's something that there is no evidence in the record about their it to the extent the court had any questions about it i think it would have to vacate for further development of the record just with respect to the bloomberg issues those are a relatively small number with respect to sift i think there's no question that system itself doesn't have standing to bring all of these and there is even less evidence in the record that you know regarding this issue you make an argument that was the plan petitioners are not registered securities information processing for purposes of opportunity to raise any arguments before the commission before the before the review and order was issued and in fact that was that's a an issue with for several of the petitioners it was literally the st order that the commission issued because they had never participated no the argument doesn't lie because it's not relevant to whether the participants are registered as that's not an issue and again the main one of the main issues here is that this is  the position that the f c c has taken that deep petitioners are required to have these procedures in place under sixty seven is a position that the f c c has never taken before and not only has it never let me back up for a minute the agreement and you want to start somewhere else and work and then i find i didn't really i didn't really have anything i want to necessarily cover i thought you were doing a great job  we don't think it's sufficient we're done does that automatically come back up to the commissioner with then whoever is challenging that he would bring it to the commissions well it then goes through the normal ninety process so it would be ther challenger has to petition or the commission could call it on its own but yeah but that's that's another commission can also just bring cases up on their own yeah yeah and in that that's place just identify them so we're really not requiring a whole lot for me because presumably every home then why did the commission say come show them to us in six months haven't they already have a some exchanges at some point early on normally do that i mean it seems to me the commission is not always consistent it's discussion on one hand seems like this is a big new thing go back to going to have to get for years and and as they also say tailor those procedures to th limburg cases are applications or complaints whatever the phrase is tailor those procedures to them so that seems to me quite inconsistent with the commission's statement that they can just sit on their existing procedures how do you reconcile  procedure to determine these cases i mean that's all they were doing in the review in order do you think that existing procedures are capable of handling you must be aware for seizures they have are they capable of handling these are going to need to be changed i believe that it may i mean there are on one of these fees in light of your decision to justify these fees do they have to make a different or more comprehensive showing that they normally do for a fee under one thousand dollars a year for disciplinary reconsideration decisions together they seem to be talking in different directions but i think so what am i supposed to do about that yeah i think i think they can be reconciled because i think the intent of them which is pretty clear is that they're just intending to send this back in light of the settlement decision and that the as arrows were expected to have in place procedures that would be they would be able to utilize to determine these cases commission provided much flexibility it also noted that they if they thought that the records that they had already were sufficient they didn't need to do anything all of anything else and all were certified and so the commission was trying to just provide a little bit of guidance and flexibility good afternoon your honor so again may please the court i think the right answer here then the reason i ask for time in frankly is to be the one person here who expresses some righteous indignation at the petitioners complained that they've been thrown back into the briar patch as part of this process when all the commission is trying to do is to give them every opportunity to justify what is otherwise completely unjustified i mean maybe that mongols four hundred feet filings all of which they made right everyone of  references competition as a constraint on whatever action they took and the commission in my mind could easily have said given the absence of proof the competition constrains anything with regard to what these exchanges do in connection with my competitiveness showing that the competitive as an evidence of sort of the same and other fees that is here was just sort of a procedural vanguard i mean i think i think it was clearly just a procedural bankcard but i do think as it developed and they said and on substitutability and whether or not order flow is a significant constraint you i would expect that the outcome of that if the answer is these things don't make any difference whatsoever the answer that would be the none of these rules should be allowed to continue on under these circumstances and then it's you know the if the exchanges want to come back with a whole new set of changes they're free to file again the next day candidly just as they did after that coalition won it's just that i suspect at this point now having analyzed this issue with some care the commission would be more inclined to do what it's been doing since it reached this decision which is to suspend these rules because again they are justified we're talking about rules that have been employees paid for by my clients for more than ten years that are still demonstrably unfair and unreasonable that the last point i want to make it before is that down is just with respect the ational standing it is clear to me that the commission has authority to do what it thinks is appropriate in terms of identifying who's been aggrieved and what the relationship ought to be and the commission here concluded that we are in the system as an aggrieved party on birds and agree part of the idea that somehow indirect purchasers are the real parties who should be bringing these actions and that's completely inconsistent with the way most courts think about this because she cannot be faulted for saying this is an efficient way to resolve these issues under these circumstances  page nine of the joint appendix for this appeal and specifically the sentence saying where the commission said we will allow all parties to assert their views in the fifty proceeding or reserving the ultimate resolution of the remaining role challengers in the fifty one proceeding that was the last thing anyone ever heard about any of these proceedings which as the court knows continue to multiply over the succeeding years and that is an option if they don't you ma'am they just  us to treat them as if they were denials of access when in fact there's nothing in the record indicating that there are or that there ever were any denials of access with respect to any of these specific will filings and yet all the fishers are required to treat them