National Ass'n of Manufacturers v. Securities & Exchange Commission

Opinion for the court filed by Senior Circuit Judge RANDOLPH.

Opinion concurring in part filed by Circuit Judge SRINIVASAN.

I.

For the last fifteen years, the Democratic Republic of the Congo has endured war and humanitarian catastrophe. Millions have perished, mostly civilians who died of starvation and disease. Communities have been displaced, rape is a weapon, and human rights violations are widespread.

Armed groups fighting the war finance their operations by exploiting the regional trade in several kinds of minerals. Those minerals — gold, tantalum, tin, and tungsten 1 — are extracted from technologically primitive mining sites in the remote east*363ern Congo. They are sold at regional trading houses, smelted nearby or abroad, and ultimately used to manufacture many different products.2 Armed groups profit by extorting, and in some cases directly managing, the minimally regulated mining operations.

In 2010, Congress devised a response to the Congo war. Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111-203, 124 Stat. 1376 (relevant parts codified at 15 U.S.C. §§ 78m(p), 78m note (‘Conflict Minerals’)), requires the Securities and Exchange Commission — the agency normally charged with policing America’s financial markets — to issue regulations requiring firms using “conflict minerals” to investigate and disclose the origin of those minerals. See 15 U.S.C. § 78m(p)(l)(A).

The disclosure regime -applies only to “person[s] described” in the Act. See id. A “person is described ... [if] conflict minerals are necessary to the functionality or production of a product manufactured by such person.” Id. § 78m(p)(2). A described person must “disclose annually, whether [its necessary] conflict minerals ... did originate in the [Congo] or an adjoining country.” Id. § 78m(p)(l)(A). If those minerals “did originate” in the Congo or an adjoining country (collectively, “covered countries”) then the person must “submit [a report] to the Commission.” Id. The report must describe the “due diligence” measures taken to establish “the source and chain of custody” of the minerals, including a “private sector audit” of the report. Id. The report must also list “the products manufactured or contracted to be manufactured that are not DRC conflict free.” Id. A product is “DRC conflict free” if its necessary conflict minerals did not “directly or indirectly finance or benefit armed groups” in the covered countries. Id.

In late 2010, the Commission proposed rules for implementing the Act. Conflict Minerals, 75 Fed.Reg. 80,948 (Dec. 23, 2010). Along with the : proposed rules, the Commission solicited comments on a range of issues. In response, it received hundreds of individual comments and thousands of form letters. Conflict Minerals, 77 Fed.Reg. 56,274, 56,277-78 (Sept. 12, 2012) (“final rule”) (codified at 17 C.F.R. §§ 240.13p-1, 249b.400). The Commission twice extended the comment period and held a roundtable for interested stakeholders. Id. By a 3-2 vote, it promulgated the final rule, which became effective November 13, 2012. Id. at 56,274. The first reports are due by May 31, 2014. Id.

The final rule adopts a three-step process, which we outline below, omitting some details not pertinent to this appeal. At step one, a firm must determine if the rule covers it. Id. at 56,279, 56,285. The final rule applies only to securities issuers who file reports with the Commission under sections 13(a) or 15(d) of the Exchange Act. Id. at 56,287. The rule excludes issuers if conflict minerals are not necessary to the production or functionality of their products. Id. at 56,297-98. The final rule does not, however, include a de minimis exception, and thus applies to issuers who use very small amounts of conflict minerals. Id. at 56,298. The rule also extends to issuers who only contract for the manufacture of products with conflict minerals, as well as issuers who directly manufacture those products. Id. at 56,290-92.

Step two requires an issuer subject to the rule to conduct a “reasonable country *364of origin inquiry.” Id. at 56,311. The inquiry is a preliminary investigation reasonably designed to determine whether an issuer’s necessary conflict minerals originated in covered countries. Id. at 56,312. If, as a result of the inquiry, an issuer either knows that its necessary conflict minerals originated in covered countries or “has reason to believe” that those minerals “may have originated” in covered countries, then it must proceed to step three and exercise due diligence. Id. at 56,313.3

An issuer who proceeds to step three must “exercise due diligence on the source and chain of custody of its conflict minerals.” Id. at 56,320. If, after performing due diligence an issuer still has reason to believe its conflict minerals may have originated in covered countries, it must file a conflict minerals report. The report must describe both its due diligence efforts, including a private sector audit,4 id., and those products that have “not been found to be ‘DRC conflict free,’ ” id. at 56,322 (quoting 15 U.S.C. § 78m(p)(l)(A)(ii)). The report must also provide detailed information about the origin of the minerals used in those products. Id. at 56,320.

The final rule does offer a temporary reprieve. During a two-year phase-in period (four years for smaller issuers), issuers may describe certain products as “DRC conflict undeterminable” instead of conflict-free or not conflict-free. Id. at 56,321-22. That option is available only if the issuer cannot determine through due diligence whether its conflict minerals originated in covered countries, or whether its minerals benefitted armed groups. Id. An issuer taking advantage of the phase-in by describing its products as “DRC conflict undeterminable” must still perform due diligence and file a conflict minerals report, but it need not obtain a private sector audit. Id.

The Commission analyzed in some detail the final rule’s costs. Id. at 56,333-54. It estimated the total costs of the final rule would be $3 billion to $4 billion initially, and $207 million to $609 million annually thereafter. Id. at 56,334. To come up with this estimate, the Commission reviewed four cost estimates it received during the comment period, supplemented with its own data. Id. at 56,350-54. Where possible, the Commission also estimated or described the marginal costs of its significant discretionary choices. Id. at 56,342-50.

The Commission was “unable to readily quantify” the “compelling social benefits” the rule was supposed to achieve: reducing violence and promoting peace and stability in the Congo. Id. at 56,350. Lacking quantitative data on those issues, the Commission explained that it could not “assess how effective” the rule would be in achieving any benefits. Id. Instead, the Commission relied on Congress’s judgment that supply-chain transparency would promote peace and stability by reducing the flow of money to armed groups. Id. at 56,275-76, 56,350. That judgment *365grounded many of the Commission’s discretionary choices in favor of greater transparency. See, e.g., id. at 56,288, 56,-291, 56,298.

The National Association of Manufacturers challenged the final rule, raising Administrative Procedure Act, Exchange Act, and First Amendment claims.5 The district court rejected all of the Association’s claims and granted summary judgment for the Commission and intervenor Amnesty International. See Nat’l Ass’n of Mfrs. v. SEC, 956 F.Supp.2d 43, 46 (D.D.C.2013).

II.

Under the Administrative Procedure Act, a court must “hold unlawful and set aside agency action ... found to be[ ] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[, or] in excess of statutory jurisdiction.” 5 U.S.C. § 706(2). In making these determinations, we review the administrative record as if the case had come directly to us without first passing through the district court. See Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C.Cir.2002).

A.

The Act does not include an exception for de minimis uses of conflict minerals. The Association claims that the rule should have included a de minimis exception and that the Commission erred when, during the rulemaking, it failed to recognize its authority to create one and assumed that the statute foreclosed any exception.

Although the Commission acknowledges that it had the authority to create such an exception, see, e.g., 15 U.S.C. § 78mm(a)(l); Ala. Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C.Cir.1979), it stated during the rulemaking that a de minimis exception “would be contrary to the [statute] and Congressional purpose,” and that if Congress intended to include such an exception it “would have done so explicitly” as it did in a nearby section of Dodd-Frank. 77 Fed.Reg. at 56, 298. But we do not interpret that explanation the way the Association does. Read in context, the Commission’s language addressed the general purpose of the statute and the effects of its policy choices. Congress knew that conflict minerals are often used in very small quantities. The Commission, relying on text, context, and policy concerns, inferred that Congress wanted the disclosure regime to work even for those small uses. Id. A de minimis exception would, in the Commission’s judgment, “thwart” that goal. Id.

The Commission’s explanation was thus a far cry from a mere “parsing of the statutory language,” Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C.Cir.2006) (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786, 797 (D.C.Cir.2004)), that has caused us to set aside agency action in other cases. See, e.g., id. at 1353 (statute’s “plain language” “does not permit” action); Arizona v. Thompson, 281 F.3d 248, 253-54 (D.C.Cir.2002) (“intent of Congress, rather than of HHS” “does not permit” action); Alarm Indus. Commc’ns Comm. v. FCC, 131 F.3d 1066, 1068 (D.C.Cir.1997) (“plain meaning” of a statute was “unambiguous”). Nothing in the Commission’s explanation suggests, as in those eases, that the statutory text by itself foreclosed any exception. Rather, the explanation “looks to be a quite ordinary construction of a statute *366over which the agency has been given interpretive authority.” PDK Labs., 362 F.3d at 807-08 (Roberts, J., concurring in part and concurring in the judgment).

The Commission did not act arbitrarily and capriciously by choosing not to include a de minimis exception. Because conflict minerals “are often used in products in very limited quantities,” the Commission reasoned that “a de minimis threshold could have a significant impact on the final rule.” 77 Fed.Reg. at 56,298 (quoting U.S. Dep’t of State Responses to Request for Comment). The Association suggests that this rationale would not apply to de minimis thresholds measured by mineral use per-issuer, instead of per-product. Although that sort of threshold was suggested in a few comments, those comments did not explain the merits of the proposal or compare it to other thresholds. The Commission was not obligated to respond to those sorts of comments. See Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.Cir.1993); see also Alianza Fed. de Mercedes v. FCC, 539 F.2d 732, 739 (D.C.Cir.1976). In any event, the Commission’s rationale still applies to a per-issuer exemption. Having established that conflict minerals are frequently used in minute amounts, the Commission could reasonably decide that a per-issuer exception could “thwart” the statute’s goals by leaving unmonitored small quantities of minerals aggregated over many issuers. Though costly, that decision bears a “rational connection” to the facts. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

B.

As we have mentioned, the final rule requires an issuer to conduct “due diligence” if, after its inquiry, it “has reason to believe that its necessary conflict minerals may have originated in” covered countries. 77 Fed.Reg. at 56,313 (emphasis added). According to the Association, that requirement contravenes the statute, which requires issuers to “submit to the Commission a report” only “in cases in which [their] conflict minerals did originate” in covered countries. 15 U.S.C. § 78m(p)(l)(A) (emphasis added).

The Association has conflated distinct issues. The statute does require a conflict minerals report if an issuer has already performed due diligence and determined that its conflict minerals did originate in covered countries. But the statute does not say in what circumstances an issuer must perform due diligence before filing a report. The statute also does not list what, if any, reporting obligations may be imposed on issuers uncertain about the origin of their conflict minerals.

In general, if a statute “is silent or ambiguous with respect to the specific issue at hand” then “the Commission may exercise its reasonable discretion in construing the statute.” Bldg. Owners & Managers Ass’n Int’l v. FCC, 254 F.3d 89, 93-94 (D.C.Cir.2001) (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). And that discretion may be exercised to regulate circumstances or parties beyond those explicated in a statute. See, e.g., Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 371-73, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C.Cir.1991). Here, the statute is silent with respect to both a threshold for conducting due diligence, and the obligations of uncertain issuers. The Commission used its delegated authority to fill those gaps, and nothing in the statute fore*367closed it from doing so.6

We also reject the Association’s argument that the Commission’s due diligence threshold was arbitrary and capricious. The Commission adopted a lower due diligence threshold to prevent issuers from “ignoring] ... warning signs” that their conflict minerals originated in covered countries. 77 Fed.Reg. at 56,313. In particular, the Commission wanted issuers who encounter red flags to “learn[] the ultimate source” of their conflict minerals. Id. at 56,314. Requiring a good-faith inquiry does not resolve the Commission’s concerns. A good-faith inquiry could generate red flags but, without a further due diligence requirement, those red flags would not give way to “ultimate” answers, which result would “undermine the goals of the statute.” Id.

Although the Commission adopted an expansive rule, it did not go as far as it might have, and it declined to require due diligence by issuers who encounter no red flags in their inquiry. Id. By doing so, the Commission reduced the costs of the final rule, and resolved the Association’s concern that the rule will yield a flood of trivial information. Id.

C.

By its terms, the statute applies to “Persons Described,” or those that “manufacture[ ]” a product in which conflict minerals “are necessary to the functionality or production” of the product. 15 U.S.C. § 78m(p)(2). If those persons file a conflict minerals report the statute requires them to describe products they “manufacture[ ] or contract[ ] to be manufactured.” Id. § 78m(p)(1)(A)(i). The Commission reconciled these provisions in an expansive fashion, applying the final rule not only to issuers that manufacture their own products, but also to those that only contract to manufacture. 77 Fed.Reg. at 56,290-91. The Association claims that decision violates the statute. By using the phrase “contracted to be manufactured” in one provision, but only “manufactured” in another, Congress allegedly intended to limit the scope of the latter.

The persons-described provision, though it refers expressly to manufacturers, is silent on the obligations of issuers that only contract for their goods to be manufactured. Standing alone, that silence allows the Commission to use its delegated authority in determining the rule’s scope, just as with the due diligence provision. The Association’s argument is no more persuasive here because Congress explicitly used the phrase “contracted to be manufactured” in a nearby provision.

The Association invokes the canon expressio unius est exclusio alterius. But that canon is “an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved.” Cheney R. Co., Inc. v. ICC, 902 F.2d 66, 69 (D.C.Cir.1990); see Tex. Rural Legal Aid, 940 F.2d at 694. The more reasonable interpretation of the statute as a whole is that Congress simply “deci[ded] not to mandate any solution” and left the rule’s application to contractors “to agency discretion.” Cheney R. Co., 902 F.2d at 69 (emphasis omitted).

*368Potential “internal[ ] inconsistency]” between the due diligence and persons-described provisions also persuades us that the statute is ambiguous. See 77 Fed.Reg. at 56,291. An issuer subject to the rule must describe due diligence measures it undertakes on the source and chain of custody of “such minerals.” 15 U.S.C. § 78m(p)(l)(A)(i). “[S]uch minerals” refers, in the preceding paragraph, to “minerals that are necessary as described in paragraph (2)(B).” Id. § 78m(p)(l)(A). Paragraph (2)(B) in turn refers to minerals “necessary to ... a product manufactured ” by a person described. Id. § 78m(p)(2) (emphasis added). Thus, under the Association’s reading, an issuer would not have to describe its due diligence efforts (or even, presumably, to conduct due diligence) for products it does not manufacture. And yet, the statute requires that same issuer to describe its contracted-for products as not conflict free under § 78m(p)(l)(A)(ii) if they do not meet the statute’s definition. We do not understand how an issuer could describe its contracted-for products without first conducting due diligence on those products, or why the statute would require certain products to be described in a report without a corresponding explanation of the related due diligence efforts. The Commission’s interpretation is therefore reasonable because it reconciles otherwise confusing and conflicting provisions “into an harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (internal quotation omitted).

The Commission did not erroneously assume that its interpretation was compelled by Congress. As the district court explained, referring once to Congress’s intent as “clear” does not establish that the Commission believed it lacked discretion. Nat’l Ass’n of Mfrs., 956 F.Supp.2d at 72 (quoting Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 445 (D.C.Cir.2012)). The balance of the Commission’s explanation, as with the de min-imis exception, falls well short of the language on which we have relied to set aside agency action. See supra at 365. Rather than merely parsing the statutory language, the Commission provided policy justifications and structural inferences supporting its decision. 77 Fed.Reg. at 56,291.

Nor did the Commission act arbitrarily or capriciously. The final rule applies to contractors so that issuers cannot “avoid [its] requirements by contracting out of the manufacture” of their products. Id. at 56,291. The Association thinks the final rule reaches too far and overstates the risk of circumvention. But that is a question of judgment for the Commission, which we will not second-guess. The Commission’s explanation was “rational,” and that is enough. State Farm, 463 U.S. at 43,103 S.Ct. 2856.

D.

The final rule’s temporary phase-in period allows issuers to describe certain products as “DRC conflict undetermina-ble” and to avoid conducting an audit. 77 Fed.Reg. at 56,320-21. The Association claims the length of the phase-in—two years for large issuers and four years for small issuers—is inconsistent, arbitrary, and capricious because small issuers are part of large-issuer supply chains. All issuers, the Association says, will therefore face the same information problems. Not so. Large issuers, the Commission explained, can exert greater leverage to obtain information about their conflict minerals, id. at 56,322-23, and they may be able to exercise that leverage indirectly on behalf of small issuers in their supply chains. Id. at 56,323 n. 570. Like the district court, *369we can “see the trickledown logic underlying the Commission’s approach,” even if it does not hold in all cases. Nat’l Ass’n of Mfrs., 956 F.Supp.2d at 73 n. 24.

III.

Two provisions require the Commission to analyze the effects of its rules. Under 15 U.S.C. § 78w(a)(2), the Commission “shall not adopt any rule [under § 78m(p) ] ... which would impose a burden on competition not necessary or appropriate” to advance the purposes of securities laws. Also, when the Commission “is engaged in rulemaking,” it must “consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.” 15 U.S.C. § 78c(f). The Association, citing several of our recent opinions, alleges that the Commission violated those sections because it did not adequately analyze the costs and benefits of the final rule. See Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C.Cir.2011); Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166 (D.C.Cir.2010); Chamber of Commerce v. SEC, 412 F.3d 133 (D.C.Cir.2005).7

We do not see any problems with the Commission’s cost-side analysis. The Commission exhaustively analyzed the final rule’s costs. See 77 Fed.Reg. at 56,-333-54. It considered its own data as well as cost estimates submitted during the comment period, id. at 56,350-54, and arrived at a large bottom-line figure that the Association does not challenge. Id. at 56,334. The Commission specifically considered the issues listed in § 78c(f) and concluded that the rule would impose competitive costs, but have relatively minor or offsetting effects on efficiency and capital formation. 77 Fed.Reg. at 56,350-51. The Association does not dispute those conclusions.

Instead, the Association argues on the benefit side that the Commission failed to determine whether the final rule would actually achieve its intended purpose. But we find it difficult to see what the Commission could have done better. The Commission determined that Congress intended the rule to achieve “compelling social benefits,” id. at 56,350, but it was “unable to readily quantify” those benefits because it lacked data about the rule’s effects. Id.

That determination was reasonable. An agency is not required “to measure the immeasurable,” and need not conduct a “rigorous, quantitative economic analysis” unless the statute explicitly directs it to do so. Inv. Co. Inst. v. Commodity Futures Trading Comm’n, 720 F.3d 370, 379 (D.C.Cir.2013) (internal quotation marks omitted); see Chamber of Commerce, 412 F.3d at 142. Here, the rule’s benefits would occur half-a-world away in the midst of an opaque conflict about which little reliable information exists, and concern a subject about which the Commission has no particular expertise. Even if one could estimate how many lives are saved or rapes prevented as a direct result of the final rule, doing so would be pointless because the costs of the rule — measured in dollars — would create an apples-to-bricks comparison.

Despite the lack of data, the Commission had to promulgate a disclosure rule. 15 U.S.C. § 78m(p)(l)(A). Thus, it relied on Congress’s “determin[ation] that [the rule’s] costs were necessary and appropriate in furthering the goals” of peace and security in the Congo. 77 Fed.Reg. at *37056,350. The Association responds that the Commission only had to adopt some disclosure rule; Congress never decided the merits of the Commission’s discretionary choices. True enough. But Congress did conclude, as a general matter, that transparency and disclosure would benefit the Congo. See 15 U.S.C. § 78m note. And the Commission invoked that general principle to justify each of its discretionary choices. See id. at 56,291 (contractors to manufacture); id. at 56,298 (no de minim-is exception); id. at 56,313-14 (due diligence standard); id. at 56,322 (phase-in).

What the Commission did not do, despite many comments suggesting it, was question the basic premise that a disclosure regime would help promote peace and stability in the Congo. If the Commission second-guessed Congress on that issue, then it would have been in an impossible position. If the Commission had found that disclosure would fail of its essential purpose, then it could not have adopted any rule under the Association’s view of §§ 78w(a)(2) and 78c(f). But promulgating some rule is exactly what Dodd-Frank required the Commission to do.

IV.

This brings us to the Association’s First Amendment claim. The Association challenges only the requirement that an issuer describe its products as not “DRC conflict free” in the report it files with the Commission and must post on its website.8 15 U.S.C. § 78m(p)(l)(A)(ii) & (E). That requirement, according to the Association, unconstitutionally compels speech. The district court, applying Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 564-66, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), rejected the First Amendment claim. Nat’l Ass’n of Mfrs., 956 F.Supp.2d at 73, 75-82. We review its decision de novo. Am. Bus. Ass’n. v. Rogoff, 649 F.3d 734, 737 (D.C.Cir.2011).9

The Commission argues that rational basis review is appropriate because the conflict free label discloses purely factual non-ideological information. We disagree. Rational basis review is the exception, not the rule, in First Amendment cases. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). The Supreme Court has stated that rational basis review applies to *371certain disclosures of “purely factual and uncontroversial information.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). But as intervenor Amnesty International forthrightly recognizes,10 we have held that Zauderer is “limited to cases in which disclosure requirements are ‘reasonably related to the State’s interest in preventing deception of consumers.’” R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1213 (D.C.Cir.2012) (quoting Zauderer, 471 U.S. at 651, 105 S.Ct. 2265); see Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 959 n. 18 (D.C.Cir.2013). But see Am. Meat Inst. v. USD A 746 F.3d 1065, 1070-73 (D.C.Cir. Mar. 28, 2014), vacated and en banc rehearing ordered, Order, No. 13-5281 (D.C. Cir. Apr. 4, 2014) (en banc). No party has suggested that the conflict minerals rule is related to preventing consumer deception. In the district court the Commission admitted that it was not. Nat’l Ass’n of Mfrs., 956 F.Supp.2d at 77.

That a disclosure is factual, standing alone, does not immunize it from scrutiny because “[t]he right against compelled speech is not, and cannot be, restricted to ideological messages.” Nat’l Ass’n of Mfrs., 717 F.3d at 957. Rather, “th[e] general rule, that the speaker has the right to tailor the speech, applies ... equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 573-74, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing cases). As the Supreme Court put it in Riley v. National Federation of the Blind of North Carolina, Inc., the eases dealing with ideological messages 11 “cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of ‘fact.’ ” 487 U.S. 781, 797, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).

At all events, it is far from clear that the description at issue — whether a product is “conflict free” — is factual and non-ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.” See Hurley, 515 U.S. at 573, 115 S.Ct. 2338. By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment. See id.

Citing our opinion in SEC v. Wall Street Publishing Institute, Inc., intervenor Amnesty International argues that rational basis review applies because the final rule *372exercises “the federal government’s broad powers to regulate the securities industry.” 851 F.2d 365, 372 (D.C.Cir.1988).12 In Wall Street Publishing the court held that the Commission could, without running afoul of the First Amendment, seek an injunction requiring that a magazine disclose the consideration it received in exchange for stock recommendations. Id. at 366. Significantly, the court chose to apply a less exacting level of scrutiny, even though the injunction did not fall within any well-established exceptions to strict scrutiny. Id. at 372-73.

It is not entirely clear what would result if Wall Street Publi