let me let me ask you to focus every one of the commission's federal register statements say this is not fine just take for example the latest number of civically highlighted issues quote including with of the proposals are consistent with section eleven as well as any other concerns they may have with they say the same thing in every other federal register talking to your honor the commission is determination and the order under review here with respect three matters under review here it's an it which are which as to which is determination is already final as it made very clear in the prior order and as a confirmed and it's last week it is not inviting comment on those matters it has more in the order under review when challenging and the fact that there's nothing in the a specific questions that the commission if your earlier this year with respect to be consolidated data plan i mean to the arrested comply with the regulatory requirements that it imposed and the and the government's order is not determining whether to reach those requirements those requirements are final this is just like the domestic security status in which this court held that where the  determination by the commission imposed certain requirements or certain provisions made implementation contingent and subsequent determination and then the terminations remain at a later date and not going to get anywhere but everyone can she's pretty the question here is what is the commission said in its various public announcements to publish registered and and i mean you you may say that the that the  commission was sit is asking nothing more than whether or not the planes were submitted were consistent with the commission's prior order but that's not what it says it says whether it's consistent with section with the statu so if if you really think that the f c c has already made a final judgment that the disputed features must be included in front point why did this yet file it brief in this case and said that for all the reasons set forth in this brief the commission should know these proposals i'm sorry i was just trying to make sure i understand what you were asking about  suspenders approach but that doesn't change the fact that this order imposed real world patients and costs and burdens on the regulated entities they had no choice they would have been subject to sanctions regulatory sanctions if they had intermediate agency action rulings can be challenged upon review of the final agency rule this is an intermediate rule no matter how you look at it because it's it's not giving you the ultimate plan that it's yet to be decided and so why doesn't seven o four take care of your problem let me give you a hypothetical and i don't want to argue back and forth but tell me how you distinguish just because i think of this case and somewhat the same way that's that's so it's assume an action for an injunction and the district judge rules that the defendant is liable and then  that i want you to get together with the plaintiff and propose a plan with it in the with the following elements and now it's not immediately appeal but as a final final obligations to formulate a plan with the following elements and it's the same thing afterward is on related to the substance of the elements that the commission has identified you know find you know really challenging must be part of the plan that that is not going to change at all even if the commission were to find that there are legal obstacles ahead that's that's correct you're out of the because the commission is proposed they resolve them to express their final determinations that those requirements are must be part of the point and must be satisfied and yes our plan that they're going to approve or submit for move on so it's just like the domestic securities case where the original order finally determined the matters that it rested but it leaves implementation and i don't think of the overall plan to a later proceeding where additional issues are going to be consider so even though under the view that has been suggested you could say the original order was was an interim order in the sense that implementation came and so came later this court nonetheless held it was final for purposes of this review because the issues concerns if you waited you were you would not be able jim's and he mentioned seven afford it which is true but what about also wouldn't you be fully protected if this is a hypothetical if we if we decide this is not animal and we say in order dismissing the petition that we lecture stitching because you order is not final aren't you fully protected when the commission issues its final standards  yourself and maybe you were wrong about that but you're totally protected by a court of appeals were saying this is a non fine what intermediate decision not subject to change yes that's true as a legal matter a practical matter it condition was unrelated to the substance of the super montages rules so here i'm trying to understand is the same situation true he analogy to for example and this analogy may fail i'm certainly come up with a better one but i'm just going to think of where a decision is made by an agency to do x but it doesn't fully know what happens after x and their baby other issues come into play but the agency decides it wants to decide these issues now so what is the best argument that that's not piecemeal piecemealing the issue such that we don't have a final order here you know words commission says we want we want the plan to include four elements now once we get those plans they're baby other issues that come to bear and that happens all the time in these agency cases where the agency may adopt some of your objections but reject others it goes ahead and issues the final plan i guess what we're trying to understand is ringback when it is your argument that the issue as to what may come in the future is simply not relevant here to appeared different than the status of this case and i need to understand why you think either it's not or if they are they shouldn't be persuasive here because they they say that you know we said to be sure the f c c did condition implementation of super montage on the approval of an adequate a but it said we said that this condition does not affect the finality because the condition was on related to the substance of the super montage rules here while i you finality issue raised in our order not addressing something that is related to the substance of the super montage just like it has year approved the challenged element but it's that we need basically an alternative system to compliment what we've approved and we're going to withhold implementation unless and until that that alternative system is approved and implemented by and approved and then we will implement super fun times as well the thing that's true here in the sense that if commission has finally determined the elements at issue the three challenged requirement for any plan that is going to be implemented and it has said we're going to examine additional separate issues in the in the current ongoing proceeding to chairman whether the plan in other respects satisfies the requirements of the act and once it's done that they will implement the plan including the requirements because it has been imposed at the government's order so i think it's the same i think it's the same thing and that it had approved in the initial order and there was an alternative system for trade execution to to go hand in hand with as i understand it with the super funds our system to make sure that  investors in the regulated community had the full range of options that they needed in order to execute trades and so it's not that they were totally unrelated it was an additional piece of the puzzle that the commission felt it needed to address before it would allow implementation of the super montage aspects approved in the original order and yet this court said the original order was a final one issue because that was not what the commission was was ringback considering and underlying order and yeah and that's precisely what's going on here the commission is not reconsidering the determinations and requirements that are imposed on the exchanges indeed i think this is the finality argument here is more substantial than it was in domestic security is again because the governance order imposed real world applications on the exchanges forcing them to develop and submit a plan on an expedited basis cost and burden and so what's your best response then to these more recent statements that judge tatum was discussing with you  if you read the full list of questions that the commission promulgated and invited to comment on none of them has to do with the requirements previously imposed and the government's order to the contrary it's saying in  substance obviously i'm paraphrasing by saying substance obviously the requirements of the government's order are the baseline there they're going to stick and we want to know whether the proposed plan satisfy all of the requirements of the act and the regulations and the government's order not whether we should reconsider the requirements imposed on the governments or so again that there's no way shape or form in which the commission has invited comments that what that about whether it should reconsider its determinations in that previous and final order so do you understand some of the questions perhaps to a lot of the cases we hear involve big issues and you can't decide all of them at once and we often and i think the supreme court sorry has said you know the agency doesn't have to address everything related to the jugular issue in one rule makings it can decide it only wants to address part and it may or may not come back to the issue later so we haven't seemed to have a problem with deferring to the agencies determination of what it wants to address now and the manner in which it docket is developed and i think that's why both parties in this case may have emphasized the real world consequences now even though later adjustments made either  but not so far as we can tell from what the commission has indicated its interest in so far redo what you referred to as the baseline here for the  cases and the supreme court's case is asked whether the agency's determination under review constitutes a definitive ruling whether the agency's ruling is is not tentative or interlocutory that's the test that this c and the supreme court articulate for the st prong versus spear and the answer to those questions are clearly that the f c c has ruled definitively and has not issued a merely tentative or interlocking for a ruling on the questions at issue just that was a statement notice a proposed group making which very definition is tentative and inviting comment and consideration for the commission later to determine are the agency better to determine what the answer is  of the commission issued a proposed order invited time in comments were submitted the commission considered them and addressed some of them in this order and issued a final order resolving the issues that we are raising here so it's quite different from murr authorize or direct s r o to act jointly not any other entities it doesn't make any sense to suggest that congress intended through silence to that the commission to extend that authority to sense and it violates the structure and purpose of the act because as a quid pro quo for giving us our roes regulatory authority congress imposed on them unique obligations and responsibilities including the obligation provision which makes it clear that each exchange own independent s r o is also inconsistent with the commission's own long established regulatory practice which have provided no reason to explanation or departing from and it's inconsistent with this court er speculation about the potential for conflicts of interest but they pointed to no they made no finding them financial no evidence of any real world harm let alone explain how that overcomes the costs of the commission's rule is imposing attributes to the s r o as commission provided no explanations about discriminatory treatment which therefore violates the litigation system precedent that i mentioned before and the commission failed to consider the facts and the significance of the fact that asked whether the proposals are consistent with sectional end quote has it as well as quote any other concerns they may have with the proposal and then it said institution of where it says two critical things it seems to me in one we're asking for comment on whether the proposals are consistent with statute number two  mr but i don't see anything in their order which said that when the commission asked for comment on whether or not the proposals could put with a statute that it wasn't referring that it's in a much stronger position would be in a much stronger position to defend its ultimate decisions here if we let the regulatory process go re what is it about this case it  and let me ask you about a few of the other these documents ok so the government's order one of the comments that the commission responded to and said that the c is rationale for making governance changes relied on what they called cherry picked opinions in other words they challenged the commission said the new consolidated plan submitted a response this order will itself will itself be published or will itself be published for public comment prior to any decision to approve or disapprove the plans with any changes or subject to any conditions a commission is necessary or appropriate so in response to an argument that that the commission's rationale for requiring some of these requirements was was flawed the commission said don't worry about it the changes asked for stay before the commission the commission tonight right now and it said very clearly in it the order does not establish a new plan it requires yes or it's a fire plan with the commissions the process through that process interested parties will still be able to comment on the proposed plan and the commission will review the plan and may make changes or add conditions before issuing a subsequent order approving or organizations not known suffering to in session's and then it says with respect to matters it is to which they share authority under this charter which doesn't apply to non s mean i don't i don't statute books cleared i don't see where the commission true doesn't say anything about not a summary but it seems to seventy that not points i think merit response counsel cited sections eleven a eight and eleven a c as alleged support for the commission's decision to grant authority the authority to act jointly given that the only entities that have the authority that congress gave them under the statute eleven a suspended by the commission and its order doesn't actually are any authority on the commission at all it's a direct command to the commission to exercise other authorities such as a leg of a treaty to implement a national market system it doesn't convey any authority separate and apart from other authority so does nothing for them and i mentioned eleven a c doesn't doesn't potential role in the f c c discussion of the role it gives them is expressly quote and buys a very close quote which is of course directly inconsistent with what the commission has done here by comparing actual authority on their representative manner the commission points only to a straight comment in a committee report some years before the legislation that issue but even if that was one of the motivations it says nothing about about no support for the what the commission did here because of course the commission has  authority on other participants in the securities markets including broker dealers who also would have ended and i trust concerns within the law allowed to act jointly and so if congress thought that it was necessary to  now if they're going to suffer and i trust liabilities and won't participate well i mean i think again we're not suggesting that this is why congress imposes prevention because i mean the supreme court even  the commission's authorization that wouldn't justify extending the scope of eleven a a three d to and congress didn't include that and so they're using it just as an interpretive to correct you are really responding to