David Lynn points out that the Commission's loss could have been a lot worse given its recent track record before the DC Circuit:
... On the benefit side of the equation, the Court stated "we find it difficult to see what the Commission could have done better," noting that the SEC determined that Congress intended the rule to achieve "compelling social benefits" which the agency was "unable to readily quantify" due to a lack of data about the rule's effects. The Court noted that the SEC had to promulgate the rule based on the statute, and thus necessarily relied on Congress's determination that the costs were necessary for achieving the goals.
With this outcome, the rule writers at the SEC are no doubt breathing a sigh of relief, as they still have a relatively full plate of Dodd-Frank Act and JOBS Act mandated rulemakings that continue to percolate. After a string of high profile losses in this Court and the U.S. District Court for the District of Columbia, this outcome is probably the best that the SEC and the Staff could have hoped for and may serve to pave the way for moving forward with the rest of the rulemaking agenda.
He's got a point.