1. Does the statutory term “confidential” in FOIA Exemption 4 bear its ordinary meaning, thus requiring the Government to withhold all “commercial or financial information” that is confidentially held and not publicly disseminated—regardless of whether a party establishes substantial competitive harm from disclosure—which would resolve at least five circuit splits?
2. Alternatively, if the Court retains the substantialcompetitive-harm test, is that test satisfied when the requested information could be potentially useful to a competitor (as the First and Tenth Circuits have held), or must the party opposing disclosure establish with near certainty a defined competitive harm like lost market share (as the Ninth and D.C. Circuits have held, and as the Eighth Circuit required here)?