United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2020 Decided June 30, 2020

No. 19-1155

UNITED STATES POSTAL SERVICE,

PETITIONER

v.

POSTAL REGULATORY COMMISSION,

RESPONDENT

ASSOCIATION FOR POSTAL COMMERCE,

INTERVENOR

On Petition for Review of an Order of the

Postal Regulatory Commission

Stephan J. Boardman, Attorney, United States Postal 

Service, argued the cause for petitioner. On the briefs were 

Redding C. Cates and Morgan E. Rehrig, Attorneys. David C. 

Belt entered an appearance.

Dennis Fan, Attorney, U.S. Department of Justice, argued 

the cause for respondent. With him on the brief were Daniel 

Tenny, Attorney, David A. Trissell, General Counsel, Postal 

Regulatory Commission, Anne J. Siarnacki, Deputy General 

Counsel, and Lauren A. D=Agostino, Attorney.
2

Matthew D. Field and Ian D. Volner were on the brief for 

intervenor Association for Postal Commerce in support of 

respondent.

Daryl L. Joseffer, Michael B. Schon, and Ashley C. Parrish 

were on the brief for amicus curiae Chamber of Commerce of 

the United States of America in support of respondent.

Before: ROGERS, GRIFFITH, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge RAO.

GRIFFITH, Circuit Judge: When foreigners send mail to the 

United States by “Inbound Letter Post,” they pay their local 

postal carrier, who bears the cost of delivering that mail to our 

shores. Inside the country, the Postal Service takes over.

Although foreign carriers pay dues to the Postal Service to 

defray the cost of delivery, those dues—which were previously 

set largely by the Universal Postal Union (UPU), a component 

of the United Nations—have long undercompensated the 

Postal Service to the tune of hundreds of millions of dollars per 

year. Periodic Reporting Requirements, 83 Fed. Reg. 33,879, 

33,883 (July 18, 2018). The Postal Regulatory Commission, 

which oversees the Postal Service’s ratemaking, ordered 

disclosure of certain financial data related to Inbound Letter 

Post. The Commission hoped to facilitate public participation 

in discussions of possible reforms and to help the public

understand why Inbound Letter Post was so unprofitable. 

Seeking to keep that data confidential, the Postal Service 

petitioned for review. Because we hold that the Commission 

reasonably ordered disclosure, we deny the petition. 
3

I

The Postal Accountability and Enhancement Act requires 

the Postal Service to submit an annual compliance report to the 

Commission. 39 U.S.C. § 3652. The Postal Service may 

designate information in this report as confidential, id.

§§ 410(c)(2), 3652(f)(1), and it bears the “burden of 

persuasion” that such materials “should be withheld” from the 

public, 39 C.F.R. § 3007.201(a). In deciding whether the Postal 

Service has met this burden, the Commission must “balance the 

nature and extent of the likely commercial injury to the Postal 

Service against the public interest in maintaining the financial 

transparency of a government establishment competing in 

commercial markets.” 39 U.S.C. § 504(g)(3)(A). 

After reviewing the Postal Service’s 2018 compliance 

report, the Commission voted to disclose revenue, volume, 

cost, and contribution data for Inbound Letter Post. The 

Commission reasoned that the public had a “vital” interest in 

disclosure because Inbound Letter Post “threaten[ed] the 

financial integrity of the Postal Service.” J.A. 649, 651. If 

foreign mailers didn’t pay their fair share, the Postal Service 

would need to charge domestic mailers more or cannibalize 

profits from other ventures to make up the difference. 

Moreover, artificially low rates for Inbound Letter Post 

“distort[ed] competition” from domestic shipping companies. 

J.A. 625. Finally, releasing the data would facilitate public 

participation in discussions over how best to reform the 

payment structure for Inbound Letter Post. At the time, the 

UPU set the default rates that applied in the absence of any 

superseding international agreement. Because the UPU’s rates 

failed to compensate the Postal Service, the President had 

announced that the United States would withdraw from the 

UPU unless the UPU allowed it to set its own rates. 
4

As to commercial harm, the Commission asserted that the 

Postal Service had failed to “explain how competitors, 

suppliers, or anyone else would be able” to use the data “to 

identify opportunities to divert business from or extract more 

favorable terms in negotiations with the Postal Service.” J.A. 

664. Specifically, the Postal Service “[did] not explain how the 

aggregated historical data would be useful for a competitor in 

the rapidly evolving market.” J.A. 669. And there were “too 

many unknown variables” for the data to help with “target[ing] 

specific customers or markets.” Id. Finally, since the data was 

aggregated by the UPU’s four country groups, it did not reveal 

country-specific information and thus would not be particularly

useful to foreign nations negotiating with the United States for 

rates other than the UPU’s default rates. 

Two of the five Commissioners concurred in part and 

dissented in part. They would have disclosed revenue and 

volume data only, not cost and contribution data, fearing that 

competitors could use the latter to “undercut the Postal Service 

in pricing and service offerings” and that foreign nations could 

leverage this data to gain the upper hand in negotiations,

especially if the United States left the UPU. J.A. 694. However,

that “worst case scenario,” J.A. 695, did not come to pass 

because after the Commission voted to disclose the data at issue 

in this case, the UPU agreed to let the United States set rates 

for “bulky” letters and small parcels weighing up to two 

kilograms, see Universal Postal Convention art. 28b (2019). 

The Postal Service petitioned for review, and the 

Commission stayed release of the data pending our disposition.

The Postal Service argues that the Commission misinterpreted

the statutory balancing test and that its order was arbitrary and 

capricious. We have jurisdiction under 39 U.S.C. § 3663. We 

review the Commission’s statutory interpretations under “the 

familiar standard of Chevron,” USPS v. Postal Regulatory 
5

Comm’n (USPS II), 886 F.3d 1253, 1255 (D.C. Cir. 2018)

(internal quotation marks omitted), and its orders under the 

Administrative Procedure Act, United Parcel Serv., Inc. v. 

Postal Regulatory Comm’n, 890 F.3d 1053, 1060-61 (D.C. Cir. 

2018). 

II

We deny the petition for review. The Postal Service’s 

statutory argument hinges on a misreading of the Act, and its 

arguments that the Commission’s decision was arbitrary and 

capricious fail to overcome the deference we owe to the 

Commission’s reasoned decisions.

A

The Act directs the Commission to consider the “public 

interest in maintaining the financial transparency of a 

government establishment competing in commercial markets.” 

39 U.S.C. § 504(g)(3)(A). Conceding that the Commission’s 

interpretation of the Act is entitled to Chevron deference, the 

Postal Service nonetheless finds that interpretation 

unreasonable. See Oral Arg. Tr. 4:14-14:18, 6:25-7:2. 

Specifically, the Postal Service argues that the phrase 

“government establishment competing in commercial markets” 

limits the Commission’s consideration of the public interest to 

“protecting against competitive abuse of a statutory monopoly 

or of some other incident of governmental status.” USPS Br. 

20. We disagree.

No such limitation appears in the text of the statute, and as 

the Commission explained, financial losses to a government 

establishment such as the Postal Service burden the public. 

Surely, the public has an interest in understanding why a 

government establishment is hemorrhaging hundreds of 
6

millions of dollars per year. After all, artificially low prices can 

distort domestic competition and result in Americans paying 

more than they should for other mail products. 

Finding no support in the text, the Postal Service turns to 

the legislative history. Noting that a draft version of the Act did 

not include the phrase “competing in commercial markets,” the 

Postal Service argues that its later insertion worked to narrow

the Commission’s consideration of the public interest. USPS 

Br. 21 (citing H.R. REP. NO. 109-66, pt. 1, at 25 (2005)). 

Perhaps, but it does not follow that Congress intended to cabin

the “public interest” to nothing more than preventing 

government abuse. If it had intended such a significant 

limitation to the oft-invoked concept of “the public interest,”

Congress could have easily used those words. The Postal 

Service also points to a statement in the Senate Report that

disclosure should not “serve as an unlimited opportunity to 

access any and all Postal Service data including that which may 

be, at best, tangentially-related to evaluating compliance with 

the [Act’s] rate and service provisions.” S. REP. NO. 108-318, 

at 20 (2004). But the Postal Service does not suggest that the 

data in this case is merely “tangentially” related to compliance,

because it cannot. The data is clearly related to the Act’s 

directive that the Commission review the Postal Service’s 

finances to ensure revenues cover costs. See 39 U.S.C. 

§ 3622(b)(5), (c)(2); id. § 3633(a)(2). And if anything, the 

legislative history bolsters the Commission’s understanding of 

the public interest. The Act “guarantees a higher degree of 

transparency” than prior legislation to “ensure fair treatment” 

of customers and competitors. USPS II, 886 F.3d at 1263 

(quoting S. REP. NO. 108-318, at 1); see also H.R. REP. NO. 

109-66, pt. 1, at 46 (“[T]he Postal Service must be subject to a 

high degree of transparency, including in its finances and 

operations.”).
7

Shifting to prudential arguments, the Postal Service

objects that under the Commission’s view the “balance [will] 

always tilt toward disclosure,” USPS Reply 7, preventing the

Postal Service from competing with private carriers as 

Congress intended, USPS Br. 21 (citing S. REP. NO. 108-318, 

at 15). We disagree. Even under the Commission’s broader 

interpretation, a specific risk of commercial harm should

outweigh general curiosity about the Postal Service’s finances.

The Postal Service also faults the Commission for relying on 

the “degree to which members of the public have lobbied for 

publication.” Id. at 23. But it is reasonable for the Commission 

to consider the extent to which commenters have expressed an 

interest in disclosure, and indeed, the Administrative Procedure 

Act requires the Commission to address significant public 

comments. See Int’l Fabricare Inst. v. EPA, 972 F.2d 384, 389 

(D.C. Cir. 1992). 

Finally, the Postal Service argues that even if the Act can 

be read as broadly as the Commission suggests, the 

Commission never defined “public interest” and its lawyers 

may not do so now. USPS Reply 8; see also SEC v. Chenery 

Corp. (Chenery I), 318 U.S. 80, 95 (1943). But phrases like

“the public interest” are inherently open-ended, and the 

Commission need not articulate precise and comprehensive

definitions before applying them. It is enough for the 

Commission to explain why the public interest would be served 

by disclosure, as it did here.

B

The Postal Service argues that the Commission’s 

reasoning was arbitrary and capricious in that it failed: (1) to 

“properly take into account the substantial risks of commercial 

harm”; (2) to “respond to the dissenting opinions of two 

Commissioners”; and (3) to “provide a meaningful standard for 
8

when Postal Service confidential submissions can remain 

under seal.” USPS Br. 23. None of these arguments is 

persuasive. 

1

The Postal Service’s core objection is that the Commission 

gave short shrift to the risk of commercial harm from disclosure

relative to the public interest in disclosure. But “[o]ur review 

of agency decisions based on multi-factor balancing tests . . . is 

necessarily quite limited. We may not merely substitute the 

balance we would strike for that the agency reached.” USAir,

Inc. v. Dep’t of Transp., 969 F.2d 1256, 1263 (D.C. Cir. 1992).

The Postal Service claims that the data is more detailed 

than the Commission admits and that its release will be useful

to domestic competitors and to foreign nations negotiating for 

better prices. Although the data is aggregated into four country 

groups, the Postal Service hazards that competitors and foreign 

nations may be able to divine country-specific information for 

countries that are outsized suppliers of mail. But the 

Commission reasonably concluded that “the UPU country 

groups are too broad and diverse to allow participants to infer 

[country]-specific data.” J.A. 667. Each group includes at least 

34 countries or territories, spanning multiple continents. Even 

if individuals knew that one country dominated its group, they 

wouldn’t know its exact share of the market. J.A. 665-68; see 

also Mudge Rose Guthrie Alexander & Ferdon v. U.S. Int’l 

Trade Comm’n, 846 F.2d 1527, 1531 (D.C. Cir. 1988)

(reasoning that even in industries “dominated by one or two 

firms,” industry data does not “necessarily” reveal firmspecific data). And of course, that market share might change 

with the UPU’s new rate structure. 
9

The Postal Service also asserts that the Commission failed 

to adequately consider the risk of harm from increased 

competition. The Postal Service fears that its domestic 

competitors could use the data to target its most lucrative 

markets and underbid it. But again, the Commission reasonably 

concluded that “there [were] too many unknown variables” for 

the data to be useful to competitors hoping to undercut the 

Postal Service. J.A. 669. The data is not “disaggregated by cost 

segment or even by leg (processing, transportation, and 

delivery),” and it does not disclose details that bear on cost, 

such as where each letter originated, whether it was sent by air 

or by surface, and where it was ultimately delivered. J.A. 670

(footnote omitted). 

The Postal Service makes no response to these arguments 

except to insist that the data is “sufficiently granular to give 

competitors fresh business insights with respect to certain highvolume countries.” USPS Br. 30. But what insights? And 

which countries? The Postal Service doesn’t say. It merely

repeats its refrain that competitors could combine the data with 

other “proprietary and nonproprietary data” to unearth weak 

spots in its supply chain. USPS Br. 26; see also USPS Reply

14-15. Given these feeble objections, we see no reason to 

disagree with the conclusion that the Postal Service’s

allegations are “conclusory and unsupported.” J.A. 671. 

The Postal Service also argues that the data could harm its 

negotiations with foreign nations. But again, the Commission 

reasonably concluded that any such harms would be minimal. 

First off, because the data is not country-specific, the most it 

could provide is some information about the Postal Service’s 

average cost of delivery. And that average cost may not 

“accurately represent the Postal Service’s costs to provide the 

services included” in any particular negotiated agreement, 
10

since many agreements cover related issues and services that 

affect delivery costs. J.A. 673-74. 

The Postal Service further contends that the Commission 

should not have disclosed the data at this time. The Postal 

Service reasons that the public no longer has an interest in 

disclosure because UPU reforms have fixed the problem; now 

that the United States can set some of its own rates, the Postal 

Service shouldn’t continue to bleed cash. But we “judge the 

reasonableness of an agency’s decision on the basis of the 

record before the agency at the time it made its decision.”

NTCH, Inc. v. FCC, 950 F.3d 871, 881 (D.C. Cir. 2020) 

(internal quotation marks omitted). And in any event, the 

Commission concluded that “factors other than the existing 

UPU [rates] structure contribute to [Inbound Letter Post’s] 

poor financial performance” and that the public has an interest 

in understanding why this service lost money in the past. J.A. 

654.

Finally, the Postal Service suggests that disclosure isn’t 

necessary because interested parties can already view the data 

under protective conditions. But, as the Commission explained, 

this alternative imposes restrictions that “unfairly burden 

participants” and “hinder” transparency. J.A. 657; see also 

Intervenor Br. 7-8 (noting that this alternative “limit[s] an 

organization’s ability to share information with its members, 

receive feedback, and develop informed comment”).

Reasonable minds could certainly debate the appropriate 

balance between the public interest and the risk of commercial 

harm in the first instance. But under our deferential standard of 

review, we find the Commission’s decision reasonable. 
11

2

The Postal Service argues that the Commission’s decision 

is arbitrary and capricious because it failed to adequately 

consider the dissenting Commissioners’ arguments. Although 

the Commission is “not required to agree with arguments raised 

by a dissenting Commissioner, it must, at a minimum, 

acknowledge and consider them.” Am. Gas Ass’n v. FERC, 593 

F.3d 14, 20 (D.C. Cir. 2010) (citation omitted); see also 

Chamber of Commerce v. SEC, 412 F.3d 133, 144-45 (D.C. 

Cir. 2005). The Commission did just that. It considered and 

rejected the arguments that disclosure could harm negotiations

and create new opportunities for domestic competition. The

Postal Service’s true objection seems to be that the 

Commission unreasonably rejected these arguments, not that it 

failed to address them. That simply reprises the first argument, 

and it fares no better once repackaged. 

3

Finally, the Postal Service objects that the Commission’s 

decision provides no workable standard to guide its assessment 

of future confidential submissions. The Postal Service attempts 

to analogize this case to USPS v. Postal Regulatory Comm’n 

(USPS I), 785 F.3d 740, 753 (D.C. Cir. 2015), in which we held 

that the Commission “fail[ed] to articulate a comprehensible 

standard” for rate adjustments. But that case is far afield. There, 

the Commission set out a “cryptic” standard, failed to explain 

how that standard applied to the facts, and worse still, applied 

that standard inconsistently across similar cases. Id. at 754. 

Here, the Act itself provides the test the Commission must 

apply. 39 U.S.C. § 504(g)(3)(A). And while the Postal Service 

complains that the Commission rejected its allegations of 

commercial harm without saying what allegations would

suffice, the Commission adequately explained the problems it 
12

saw with each chain of inference and it need not announce in 

advance how it might rule on other hypothetical scenarios. See 

SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 203 (1947). 

III

Because the Commission’s order is neither contrary to law 

nor arbitrary and capricious, we deny the petition for review. 

So ordered.
RAO, Circuit Judge, concurring: I join the court’s opinion 

in full. I write separately to note the constitutional quandary 

raised by a federal court resolving a lawsuit between two 

Executive Branch agencies. On one side of this dispute, we 

have the United States Postal Service—“an independent 

establishment of the executive branch of the Government of the 

United States.” 39 U.S.C. § 201. On the other, we have the 

Postal Regulatory Commission—“an independent 

establishment of the executive branch of the Government of the 

United States.” Id. § 501. Litigating on behalf of the 

Commission, the Department of Justice has taken sides in a 

disagreement between two Executive Branch entities tasked 

with oversight and administration of the nation’s mails. 

This litigation stands in tension with Article II of the 

Constitution, which vests all executive power in the President 

and assigns him the duty to “take Care that the Laws be 

faithfully executed.” U.S. CONST. art. II, §§ 1, 3. “Moreover, 

because agencies involved in intra-Executive Branch disputes 

are not adverse to one another (rather, they are both subordinate 

parts of a single organization headed by one CEO), such 

disputes do not appear to constitute a case or controversy for

purposes of Article III.” SEC v. FLRA, 568 F.3d 990, 997 (D.C. 

Cir. 2009) (Kavanaugh, J., concurring). The Constitution 

creates a unitary executive and limits federal courts to deciding 

the rights of individuals in properly presented cases and 

controversies. The posture of this case thus presents

constitutional questions about the power of an Article III court 

to resolve a purely Article II dispute. The fact that Congress 

specifically created federal court jurisdiction between the 

Postal Service and the Commission, see 39 U.S.C. § 3663, does 

not necessarily eliminate the constitutional concern because 

Congress cannot expand federal court jurisdiction beyond the 

Article III judicial power. See Seminole Tribe of Fla. v. Fla., 

517 U.S. 44, 65 (1996) (citing Marbury v. Madison, 1 Cranch 

137 (1803)).
2

Our precedents are clear, however, that such disputes

between “independent” agencies, such as the Postal Service 

and the Commission, are justiciable. See SEC v. FLRA, 568 

F.3d at 997 (Kavanaugh, J., concurring) (collecting cases); see

also USPS v. Postal Regulatory Comm’n, 886 F.3d 1253 (D.C. 

Cir. 2018). Therefore, I join the court’s well-reasoned opinion 

in this case.