United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2013 Decided November 15, 2013

No. 12-1367

NEWSPAPER ASSOCIATION OF AMERICA,

PETITIONER

v.

POSTAL REGULATORY COMMISSION,

RESPONDENT

NATIONAL NEWSPAPER ASSOCIATION, INC., ET AL.,

INTERVENORS

On Petition for Review of an Order 

of the Postal Regulatory Commission

Robert A. Long Jr. argued the cause for petitioner

Newspaper Association of America. With him on the briefs

were Mark W. Mosier and Matthew J. Berns. Kurt A. Wimmer

entered an appearance.

Steven C. Douse argued the cause for intervenors National

Newspaper Association, Inc. et al. in support of petitioner. With

him on the briefs were William J. Olson, Herbert W. Titus, John

S. Miles, and Tonda F. Rush. 
2

Barbara Camens was on the brief for amicus curiae

Newspaper Guild-CWA in support of petitioner Newspaper

Association of America. 

Jeffrey Clair, Attorney, U.S. Department of Justice, argued

the cause for respondent. With him on the brief were Stuart F.

Delery, Acting Assistant Attorney General, Michael S. Raab,

Attorney, Stephen L. Sharfman, General Counsel, Postal

Regulatory Commission, and R. Brian Corcoran, Deputy

General Counsel.

Morgan E. Rehrig, Attorney, United States Postal Service,

argued the cause for intervenors United States Postal Service, et

al. in support of respondent. With her on the brief were Stephan

J. Boardman and Thomas W. McLaughlin. 

Before: HENDERSON and GRIFFITH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: In August 2012, the

Postal Regulatory Commission issued an order approving a

negotiated service agreement for the sale of postage between the

United States Postal Service and Valassis Direct Mail, Inc., a

national marketing company. Under the agreement, Valassis

receives discounted postage for some of its advertisement

mailers once its mail volume hits a predetermined threshold. 

Petitioner Newspaper Association of America, with the support

of three intervenors, challenges the Commission’s order

approving the deal. 
3

I

The Postal Service is empowered to set “reasonable and

equitable” postal “rates” subject to the approval of the Postal

Regulatory Commission. See 39 U.S.C. §§ 404(b), 3622(a),

(d)(1). “Rates” include not only those for the familiar first-class

and priority mail, but also “negotiated service agreements,” that

is, contracts between the Postal Service and individual mailers

for customized—and generally discounted—rates of postage. 

See 39 C.F.R. §§ 3001.5(r), 3010.6.

 The statutory system governing rates depends on whether

the rate is for a “market-dominant” or a “competitive” service. 

39 U.S.C. § 3642(b). A service is “market-dominant” if either

(1) the Postal Service has achieved a level of market power in

providing that service that would allow it to raise prices without

losing “a significant level of business,” id. § 3642(b)(1), or (2) it

is a service covered by the statutory postal monopoly, id.

§ 3642(b)(2). Because the negotiated service agreement in this

case is for the purchase of standard mail products, it is subject

to the postal monopoly, see 18 U.S.C. § 1696(a); 39 C.F.R.

§ 310.2(a), and thus the rules governing rates for marketdominant products apply. 

In reviewing rates for market-dominant products, the

Commission must consider the statutory factors set out in 39

U.S.C. § 3622(c). That subsection establishes rate requirements

for all market-dominant products, see id. § 3622(c)(1)–(9) &

(11)–(14), as well as particular requirements for negotiated

agreements, see id. § 3622(c)(10). 

As relevant here, a negotiated service agreement must meet

the following requirements: (1) it must improve the net

financial position of the Postal Service, id. § 3622(c)(10)(A)(i);

(2) it may not cause “unreasonable harm to the marketplace,” id.
4

§ 3622(c)(10)(B); (3) it must be “available on public and

reasonable terms to similarly situated mailers,” id. § 3622(c)(10);

(4) it must comport with “the policies of [Title 39],” id.; and (5)

the Commission, before approving the agreement, must give

“due regard” to its impact on “small business concerns,” id.

§ 3642(b)(3)(C).1

Once the Postal Service has negotiated terms with a

particular mailer, it must notify the public and the Commission

of its intention to implement a rate adjustment. 39 C.F.R.

§ 3010.41. The Commission then initiates proceedings to

determine whether the agreement complies with the statutory

requirements. Id. § 3010.44. Comments from the Postal

Service, its partner in the deal, and the public are welcome. See

id. If the agreement is lawful, the Commission issues an order

and the agreement may take effect. Id.

The Postal Service proposed the negotiated service

agreement in this case in April 2012, and the public proceeding

commenced that May. The structure of the Agreement is fairly

simple. For three years, Valassis agrees to maintain its current

levels of “standard mail saturation flats”—that is, advertising

circulars delivered to at least 75 percent of potential addresses

on a standard mail carrier route. In return, the Postal Service

offers Valassis a discount on new mailing programs of that same

type initiated in excess of current levels. The discount is limited

in a few ways. It applies only to mailings carrying

advertisements for retailers that deal in durable and semidurable goods and that have a physical retail presence in 30 or

more states. It also applies only to new mailing programs

initiated in markets in which Valassis has an existing program. 

And the discount on that new program remains in force only if

1

 Additional statutory requirements not relevant here apply to the

setting of all rates. See, e.g., 39 U.S.C. §§ 403(c), 404a(a)(1).
5

the corresponding existing program continues to operate at or

above current levels.

The Commission received dozens of submissions from,

among others, individual newspapers, two U.S. Senators,

petitioner Newspaper Association of America, intervenor

National Newspaper Association, and intervenors Valpak Direct

Marketing Systems and Valpak Dealers Association

(collectively, “Valpak”). The comments were overwhelmingly

against the Agreement and, taken together, argued that the

Agreement failed to satisfy any of the statutory criteria

discussed above. The Commission disagreed and issued its final

order approving the Agreement on August 23, 2012.2

 It denied

a motion to stay the order one week later. This petition for

judicial review followed.

II

Intervenors Valpak and the National Newspaper

Association argue that the Agreement was not properly before

the Commission because the Governors of the Postal System

never approved it. This, they say, rendered the Commission’s

order void. 

Establishing new rates, which includes proposing negotiated

service agreements, is the job of the Governors of the Postal

Service. 39 U.S.C. § 404(b). The Governors are appointed by

the President, confirmed by the Senate, and constitute nine of

the eleven members of the “Board of Governors.” Id. § 202. 

The Board of Governors comprises the nine Governors plus the

2

 For the full order, see Valassis Direct Mail, Inc., Dkt. MC2012-

14 (Postal Regulatory Comm’n Aug. 23, 2012) (order), available at

http://www.prc.gov/Docs/85/85014/Order_No_1448.pdf.
6

Postmaster General and the Deputy Postmaster General.3 And

the two bodies—the nine Governors as distinguished from the

full Board—have independent statutory responsibilities. While

the Board exercises the general “power of the Postal Service,”4

39 U.S.C. § 202(a)(1), only the Governors are specifically

authorized to “establish . . . equitable rates of postage.” Id.

§ 404(b).

“Except for those powers, duties, or obligations specifically

vested in the Governors, as distinguished from the Board of

Governors, the Board may delegate the authority vested in it . . ..” 

Id. § 402. In other words, while the Board may delegate its

duties, the Governors may not. And since “rates of postage”

includes negotiated service agreements, § 402 means that the

Governors cannot delegate the job of executing such agreements

and bringing them before the Commission—which is what the

intervenors claim the Governors did here.

The intervenors’ claim rests on the Governors’ Resolution

11-4, signed in March 2011. The Resolution authorizes Postal

Service “management” to negotiate service agreements with

postal customers and propose those agreements to the Postal

Regulatory Commission. The Resolution declares all rates

proposed under it “hereby established” in advance, provided the

rates comply with the statutory requirements—and the

3

 The Governors appoint the Postmaster General, 39 U.S.C.

§ 202(c), and the Governors together with the Postmaster General

appoint the Deputy, id. § 202(d). So the Postmaster General and his

Deputy, although members of the Board of Governors, are not

Governors.

4

 This power includes, among many other things, the power to

establish post offices; investigate postal crimes; and prescribe the

details of mail collection, handling, delivery, forwarding and

returning. See 39 U.S.C. § 404(a)(1)–(8).
7

Resolution instructs the Postal Service’s chief financial officer

to ensure that they do. Furthermore, it instructs management to

provide the Governors with quarterly “report[s]” on new

initiatives and to “furnish . . . information . . . regarding any

significant, new program, policy, major modification, or

initiative.” On its face the Resolution does not seem to require

the Governors to approve each new rate.

In April 2012, citing Resolution 11-4, Postal Service

management submitted the Agreement to the Postal Regulatory

Commission. In response, Valpak submitted comments to the

Commission arguing that the Agreement was the result of an

unlawful delegation by the Governors. It claimed that

Resolution 11-4, by allowing Postal Service management to

negotiate service agreements, delegates the Governors’ statutory

responsibility to set rates in violation of 39 U.S.C. § 402. Thus,

according to Valpak, the Agreement was not properly before the

Commission. The Postal Service replied that, notwithstanding

Resolution 11-4, the Governors had in fact approved the

Agreement before it was submitted. In this court, the

intervenors once again raised the argument challenging

Resolution 11-4, and the Postal Service reasserted that the

Agreement had been pre-approved.

There is no reason for us to decide whether Resolution 11-4

unlawfully delegates authority to the Postal Service. According

to the Postal Service, the Governors in fact reviewed and

approved the Agreement before it was submitted to the

Commission. That assertion was not challenged in the
8

administrative proceeding, and we understand the Commission

to have accepted it as fact.5 The intervenors challenge it for the

first time in their reply brief to this court, but we have repeatedly

held that we do not consider arguments raised only in a reply

brief. See Rollins Envtl. Servs. (NJ), Inc. v. EPA, 937 F.2d 649,

652 n.2 (D.C. Cir. 1991); McBride v. Merrell Dow & Pharms.,

Inc., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986). We thus accept

the Postal Service’s assertion as true.

At oral argument, counsel for intervenors questioned

whether pre-approval by the Governors was even

enough—§ 402, counsel suggested, requires a more “formal”

approval. But this argument, made at that point for the first

time, comes much too late. See United States v. Southerland,

5

 We quote in substantial part the Commission’s response to

Valpak’s delegation argument:

The Postal Service responds by stating “the Governors did

authorize the Postal Service to enter into this [Agreement]

and reviewed the specific terms and prices that would be

charged prior to filing the Notice.” Postal Service

Comments at 19. It correctly references Governors’

Resolution No. 11-4 . . . which obviates the need for a

separate specific authorization for every contract consistent

with that resolution.

Valassis Direct Mail, Inc., Dkt. MC2012-14, at 9 n.14 (Postal

Regulatory Comm’n Aug. 23, 2012) (order), available at http://www.

prc.gov/Docs/85/85014/Order_No_1448.pdf. The Commission’s

language is not a model of clarity, but it expresses no doubt about the

veracity of the Postal Service’s claim. Acknowledging this

uncontested fact sufficed to allow the Commission to move past the

delegation issue. Whether the Commission also meant to pronounce

on the validity of Resolution 11-4 is unclear. We would have expected

a much more thorough legal analysis had it intended to do so.
9

486 F.3d 1355, 1360 (D.C. Cir. 2007). We therefore assume

that the Governors’ level of involvement in this

case—approving the deal, if not actually submitting the

paperwork—satisfies the requirements of § 402. As a result, we

need not consider whether Resolution 11-4 violates § 402.6 See

Fried v. Hinson, 78 F.3d 688, 692 (D.C. Cir. 1996). 

We now proceed to the merits of the order.

III

In approving the Agreement, the Commission concluded

that the Agreement would not cause “unreasonable harm to the

marketplace.” See 39 U.S.C. § 3622(c)(10)(B). To do so, the

Commission first had to interpret that statutory phrase. 

Typically, an administrative agency is entitled to a degree of

deference in interpreting “the statute which it administers.” 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.

837, 842 (1984). But petitioner Newspaper Association of

America argues that the meaning of “unreasonable harm to the

marketplace” had been settled before 2006, that when Congress

enacted the statute using this language it adopted the earlier

interpretation, and that the Commission was not free to depart

from that interpretation. 

6

 Typically, we would first have considered whether the

intervenors could raise this argument at all. The rule in this circuit is

that intervenors may not raise issues not already brought before the

court by a petitioner. See New York v. Reilly, 969 F.2d 1147, 1154

n.11 (D.C. Cir. 1992); Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786

(D.C. Cir. 1990). But see Synovus Fin. Corp. v. Bd. of Governors, 952

F.2d 426, 433-34 (D.C. Cir. 1991) (describing that rule as “prudential”

and subject to appropriate exceptions). However, since we do not

reach the merits of the intervenors’ argument, we assume arguendo

that the argument is properly before us. 
10

To be more specific, before passage of the 2006 Act the

Postal Rate Commission—the current Commission’s

predecessor—promulgated regulations governing negotiated

service agreements. See Negotiated Service Agreements, 69

Fed. Reg. 7574 (Feb. 18, 2004) (codified at 39 C.F.R. subpt. L,

later removed as obsolete). One of the regulations provided that

negotiated service agreements were acceptable so long as they

were “consistent with statutory criteria,” “benefit[ted] the Postal

Service,” and did not cause “unreasonable harm to the

marketplace.” 39 C.F.R. § 3001.190(b) (2004). Another

regulation required “an analysis of the impact” of such an

agreement on competitors of the parties to the agreement. Id.

§ 3001.193(f)(1)(i). According to the Newspapers, the Postal

Rate Commission understood § 3001.193(f)(1)(i)’s impactanalysis requirement to give content to § 3001.190(b)’s

“unreasonable harm to the marketplace” standard. It follows,

the Newspapers say, that Congress incorporated the definition

of “unreasonable harm to the marketplace” in the 2006 Act as

the regulations and decisions of the Postal Rate Commission had

interpreted the phrase.7

The argument cannot survive close inspection. Its premise

is incorrect. There is no reason to suppose that the Postal Rate

Commission thought § 3001.193(f)(1)(i)’s direction to consider 

harm to competitors embodied a definition of § 3001.190(b)’s

“unreasonable harm to the marketplace.” Federal regulations,

like federal statutes, may contain one provision that is meant to

give more content to another. For instance, 39 C.F.R. § 3010.1,

entitled “Definitions in this subpart,” gives meaning to terms

used in the postal regulations using the unmistakable language,

7

 Once the Act’s statutory scheme replaced the existing

regulatory scheme for governing negotiated service agreements, both

regulations were “rendered obsolete” and removed. Updates to Rules

of Practice, 74 Fed. Reg. 23,113 (May 18, 2009).
11

“Annual limitation means . . ..” 39 C.F.R. § 3010.1(a); see also,

e.g., 8 C.F.R. § 1.2 (“Definitions”); 26 C.F.R. § 2.1–1

(“Definitions”). So when other regulations refer to “the annual

limitation,” § 3010.1(a)’s definition clearly applies. See, e.g., 39

C.F.R. § 3010.4(a). Sections 3001.190(b) and 3001.193(f)(1)(i)

were not of that sort. They simply co-existed, sections apart. 

And at the end of the day, Congress codified but one of them.

Postal Rate Commission precedents likewise contain

nothing to indicate that “unreasonable harm to the marketplace”

had become infused with the meaning the Newspapers detect. 

Early decisions of the Postal Rate Commission considered harm

to competitors— § 3001.193(f)(1)(i) had required as much. But

the Postal Rate Commission did not tie that inquiry to the

“unreasonable harm” standard. See, e.g., HSBC N. Am.

Holdings Inc., Dkt. MC2005-2, at 37 (Postal Rate Comm’n May

20, 2005) (op. and recommended decision), available at http://

www.prc.gov/Docs/44/44289/OpinionMC2005-2Final.pdf;

Bank One Corp., Dkt. MC2004-3, at 17 (Postal Rate Comm’n

Apr. 21, 2006) (op. and recommended decision), available at

http://www.prc.gov/Docs/48/48385/DecisionMC2004-3Final.

pdf. The current Commission’s other post-Act negotiated

service agreement proceeding considered the newly codified

“unreasonable harm to the marketplace” factor but provided no

content to it because there was no dispute about its meaning. 

See Discover Fin. Servs., Dkt. MC2011-19, at 21 (Postal

Regulatory Comm’n Mar. 15, 2011) (order), available at http://

www.prc.gov/Docs/72/72262/Order_No_694.pdf.

In this case the Commission was thus interpreting

“unreasonable harm to the marketplace” for the first time. And

because “unreasonable” is an amorphous term, we must give the

nod to the agency in determining its meaning, so long as that

meaning is rational and one the statutory language can bear. 
12

See, e.g., Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 204

(D.C. Cir. 1994). That test is satisfied here.

The Commission looked to antitrust law and concluded that

harm to the marketplace was “unreasonable” only if it was the

result of anticompetitive pricing—that is, pricing below cost. 

The Commission decided further that it was not obligated to

protect individual competitors of the parties to the Agreement

from the harms of fair competition. To the Commission, “as

long as the Postal Service is not pricing its products below costs

to drive its competitors out of the business, it is not creating an

unreasonable level of harm in the marketplace.” Valassis Direct

Mail, Inc., Dkt. MC2012-14, at 27 (Postal Regulatory Comm’n

Aug. 23, 2012) (order) [hereinafter “Valassis Order”], available

at http://www.prc.gov/Docs/85/85014/Order_No_1448.pdf. 

Since the terms of the Agreement price all postage above cost,

the Commission did not find the rates to be anticompetitive and

therefore concluded that the Agreement was not unreasonably

harmful to the marketplace.

In giving content to ambiguous statutory phrases, an

administrative agency is at liberty to look to other bodies of law,

such as antitrust. See N. Natural Gas Co. v. Fed. Power

Comm’n, 399 F.2d 953, 961 (D.C. Cir. 1968). Here, the

Commission drew on a basic tenet of antitrust law: fair

competition is good for consumers even when it leads to “injury

inflicted upon rivals.” ROBERT H. BORK, THE ANTITRUST

PARADOX 136-44 (1978). The Newspapers say the

Commission’s antitrust analysis was “cramped.” Pet’r Br. 35. 

They correctly remind us that, generally speaking, predatory

pricing is just one of many ways to cause harm in a marketplace. 

But here it was precisely the “aggressive price reductions” for

Valassis that the Newspapers found objectionable. Opp’n of

Newspaper Ass’n of Am., Valassis NSA, Dkt. MC2012-14, at

3 (Postal Regulatory Comm’n May 23, 2012). It was sensible
13

for the Commission to address itself to potential anticompetitive

harms risked by that specific aspect of the deal. The question

whether “unreasonable harm to the marketplace” under

§ 3622(c)(10)(B) encompasses other anticompetitive tactics is

not now before us.

In any event, in looking to the antitrust laws to inform its

own statutory interpretation, the Commission is not “strictly

bound by the dictates of th[o]se laws.” N. Natural Gas Co., 399

F.2d at 961. Rather, the nature of the agency’s interpretive

discretion is that it may employ those concepts “to a greater or

lesser degree” in order to set sound policy. Id. 

Agency policy judgments still must be adequately

explained. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43

(1983). On that score, the Newspapers argue that the

Commission’s application of the “unreasonable harm to the

marketplace” standard was arbitrary and capricious.

They cite Professor John Panzar, an economist who, in

prepared testimony in 2003, advised the old Postal Rate

Commission on how to regulate negotiated service agreements. 

Professor Panzar believed that the concerns of “[c]ompetitors

of the Postal Service” should not be considered in evaluating a

negotiated service agreement, so long as the Postal Service’s

pricing was not anticompetitive. Official Transcript of Postal

Rate Commission at 1637, Capital One Servs., Inc., Dkt.

MC2002-2 (Feb. 7, 2003), available at http://www.prc.gov/Docs/

37/37064/08-02-0703.pdf. But Professor Panzar also advised

that “[c]ompetitors of the firm receiving the [negotiated service

agreement] . . . may be adversely affected” and that “their

concerns are an important part of the evaluation process.” Id. at

1595 (emphasis added). The Commission cited Professor

Panzar in its analysis of the term “unreasonable harm to the
14

marketplace” but declined to analyze the Agreement’s effects on

anyone other than the Postal Service’s competitors. The

Newspapers challenge what they perceive as a misguided

application of Professor Panzar’s approach.8

The Newspapers are correct that the Commission did not

meaningfully consider the impact the Agreement would have on

Valassis’s competitors. But we do not believe this diversion

from Professor Panzar was arbitrary and capricious. The

Commission derived its primary rationale for interpreting

“unreasonable harm” from antitrust law. It said as much and

cited two Supreme Court cases for support. See Spectrum

Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993) (“The

[antitrust] law directs itself not against conduct which is

competitive, even severely so, but against conduct which

unfairly tends to destroy competition itself.”); Brown Shoe Co.

v. United States, 370 U.S. 294, 344 (1962) (“It is competition,

not competitors, which the [Sherman] Act protects.”). On that

basis, the Commission interpreted “unreasonable harm” to mean

anticompetitive behavior. And under that interpretation, the

8

 The intervenors (and the Newspapers to a certain extent) also

make the point that newspapers can themselves be considered

competitors of either the Postal Service or Valassis. They compete

with the Postal Service in the market to deliver advertisements to

consumers, and they compete with Valassis in the market to sell space

in which to place an advertisement. So had the Commission, as

Professor Panzar suggested, concerned itself with the Agreement’s

effects on Valassis’s, but not the Service’s, competitors, it would first

have had to justify placing newspapers in one group or the other. 

However, since we conclude that the standard the Commission chose

did not require a consideration of the Agreement’s effects on either

group, the point is of little importance here.
15

Agreement was lawful because the postage was priced above

cost.9 

The Commission cited Professor Panzar for additional

support, but it did not entirely embrace his testimony. We do

not think an agency decision can rise or fall with its faithfulness

to every authority it cites but does not entirely rely upon. See

Kennecott Greens Creek Mining Co. v. Mine Safety & Health

Admin., 476 F.3d 946, 954 (D.C. Cir. 2007). Here, the

Commission relied on antitrust law and, on that basis, rationally

explained the interpretation it applied.10

The Commission also concluded that, as the statute

required, the Agreement would result in a net benefit to the

Postal Service. See 39 U.S.C. § 3622(c)(10)(A). The

Commission first explained that the Agreement’s discounts

apply only to postage purchased in excess of Valassis’s current

mailing volumes. In that way, the Agreement was specifically

designed to offer discounted postage for “volumes generated in

response to the discount” and not for “volume that would have

been mailed” anyway. Valassis Order 17.

9

 The price of the postage confirms only that the Postal Service

was not employing anticompetitive tactics; it says nothing about

Valassis. But the Newspapers do not accuse Valassis of unfair

competition. And counsel for the Commission confirmed at oral

argument that if Valassis were to engage in predatory pricing (or any

other anticompetitive tactic) on the strength of its favorable postal

rates, standard antitrust remedies would be available.

10 In addition, the Commission noted that any competitive

advantage conferred upon Valassis by the Agreement would be dulled

by the statutory requirement that the benefits of the deal be made

available “on public and reasonable terms to similarly situated mailers.” 

39 U.S.C. § 3622(c)(10).
16

The Newspapers accept this logic. But they claim that gains

from Valassis’s expenditures will be more than offset by

reduced postage expenditures by mailers not party to the

Agreement. See 39 C.F.R. § 3010.42(f)(3) (requiring the

Commission to consider this effect). They argue that if Valassis

can send advertising through the mail more cheaply, then it can

charge less to its advertisers and thereby cause its competitors

(chiefly, newspapers) to lose market share. Less market share

means less mail to send and less money spent on postage. The

Newspapers estimated that this effect would lead newspapers to

reduce postage expenditures by $199 million annually over the

three-year life of the Agreement. The Commission found that

projection to be unsupported. 

When, as here, an agency is making “predictive judgments

about the likely economic effects of a rule,” we are particularly

loath to second-guess its analysis. Nat’l Tel. Coop. Ass’n v.

FCC, 563 F.3d 536, 541 (D.C. Cir. 2009). Such calculations fall

“squarely within the ambit of [the Commission’s] expertise.” 

Alpharma, Inc. v. Leavitt, 460 F.3d 1, 9 (D.C. Cir. 2006)

(internal quotation marks omitted); see 39 U.S.C. § 3622. Our

narrow task here is to ensure that the Commission sufficiently

supported its analysis. See Nat’l Tel. Coop. Ass’n, 563 F.3d at

540-41. We believe it did. 

 The Commission identified limitations on the accuracy of

the newspapers’ projections. Primarily, given newspapers’

recent financial struggles, see Nick Gamse, Note, Legal

Remedies for Saving Public Interest Journalism in America, 105

NW. U. L. REV. 329, 331-33 (2011), it is difficult to attribute a

drop in postage expenditures to one particular pricing

arrangement. As the Commission observed, the individual

newspapers that submitted comments to the Commission

seemed to ignore that complexity. Many papers projected, with

little support, only the very worst case—that approval of the
17

Agreement would cause them to reduce their postage

expenditures to, or near, zero. Given the Commission’s

explanation of the complexities involved in making these

projections, we cannot disturb its finding that the projections

here were too speculative to be useful.

The Commission was also required to consider “the policies

of [Title 39]” in assessing the Agreement. 39 U.S.C.

§ 3622(c)(10), (14). (Title 39 of the U.S. Code contains federal

postal law.) The Newspapers contend again, now under this

provision, that the Commission failed to consider the impact of

the Agreement on newspapers’ survival in the marketplace. For

much of our nation’s history, postal policy has subsidized the

mailing of newspapers in recognition of the virtues of a wellinformed electorate. See Note, Second-Class Postal Rates and

the First Amendment, 28 RUTGERS L. REV. 693, 695-96 & n.14

(1975). It is a small jump to conclude that a postal rate that

potentially harms newspapers as a business might run counter to

those policies.

But the 2006 Postal Accountability and Enhancement Act

considerably revised Title 39 with an eye toward ensuring the

Postal Service’s financial viability. See S.REP. NO. 108-318, at

2-4 (2004). Now, Title 39 reflects the Postal Service’s need to

increase revenue through negotiated service agreements.

According to the Commission, Title 39 does not include a policy

of protecting newspapers “from the consequences of fair

competition.” Valassis Order 33. In light of the 2006 revisions

to the Act, we see no basis for disagreeing with the

Commission’s conclusion. Cf. U.S. Postal Serv. v. Postal

Regulatory Comm’n, 676 F.3d 1105, 1108 (D.C. Cir. 2012).

We also believe that the Commission gave “due regard” to

the Agreement’s impact on small business concerns. See 39

U.S.C. § 3642(b)(3)(C). By its terms, this provision does not
18

impose a substantive limitation on the Commission’s

decisionmaking. It requires only that the decision “address

certain legally delineated topics.” Nat’l Tel. Coop. Ass’n, 563

F.3d at 540. Here, the Commission concluded that the

Agreement’s impact on small business would be cabined

because of geographic and advertising limitations built into the

Agreement. That analysis considers the issue sufficiently and

constitutes the requisite “due regard.”11

IV

The Commission’s order complies with the Postal

Accountability and Enhancement Act and the Administrative

Procedure Act. We have considered and rejected the other

arguments made against the Commission’s order. We therefore

deny the petition for review.

So ordered.

11 Only intervenors raised this argument. However, because we

would reject it in any event, we assume arguendo that we may

consider it.