FEDERAL APPEALS COURT OVERTURNS DOT’S DECISION TO UNWIND DELTA-AEROMEXICO JOINT VENTURE
September 9, 2026
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On August 20, 2026, the United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit) vacated DOT’s September 2025 order terminating approval of the Delta-Aeromexico joint venture and withdrawing the accompanying grant of antitrust immunity (ATI). Having stayed DOT’s order in November 2025 until a three-judge panel could thoroughly review DOT’s decision, the Eleventh Circuit determined that the DOT order was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) for two reasons.
First, the Court found that DOT failed to conduct a comprehensive U.S.-Mexico market analysis encompassing all applicable network, country-pair, and city-pair levels because it focused solely on anticompetitive conditions at Mexico City’s Benito Juárez International Airport (MEX), a single airport, when assessing whether to withdraw ATI held by the parties. By only focusing on competitive concerns at a single airport like MEX, the Eleventh Circuit stated that DOT ignored the broader U.S.-Mexico market which includes approximately 1,687 city-pairs and therefore DOT departed from longstanding precedent of conducting far broader market analyses.
Second, and more importantly for foreign air carriers, the Eleventh Circuit undercut DOT’s contention that compliance with open skies agreements was a prerequisite for approval of the Delta-Aeromexico joint venture. In making this decision, the Court cited prior DOT precedent where regulators had not imposed such a requirement in other similar cases. For instance, DOT previously granted ATI to two joint ventures between U.S. and Japanese air carriers to operate at Tokyo’s Haneda International Airport even though the bilateral agreement between the United States and Japan explicitly carved out Haneda from the Open Skies regulatory framework. In other words, by requiring Mexico’s compliance with the 2015 Open Skies agreement as a condition for renewing the Delta-Aeromexico joint venture—while not imposing similar requirements in comparable cases—the DOT failed to treat like cases alike, leading the Eleventh Circuit to find its decision arbitrary and capricious under the APA.
In addition to preserving Delta and Aeromexico’s transborder joint venture, Eleventh Circuit’s decision could have broader legal/aeropolitical implications given the Trump administration continues to strictly enforce foreign government compliance with bilateral aviation agreements. The Eleventh Circuit ruling also underscores the importance of federal judicial oversight of agency decisions to ensure that U.S. regulators are applying the law correctly and reaching well-reasoned conclusions supported by the factual record.
This Aviation Regulatory Update is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions or require additional information, please contact Evelyn D. Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew M. Derco at 202.659.6665 or dderco@eckertseamans.com; Tyler R. Myers at 202.659.6642 or trmyers@eckertseamans.com; Xander B. Silva at 412.566.6069 or xsilva@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.
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