By Joe Nocera

ONE OF THE things we learned in the wake of the two 737 Max crashes that killed 346 people within five months is that the Federal Aviation Administration (FAA) and the Boeing Co. were “too cozy for either’s own good,” as my colleague Brooke Sutherland wrote in March. The FAA, it turned out, had outsourced much of the certification process for the plane to Boeing itself. As a result, a flawed aircraft was allowed to fly, with tragic results.

The FAA is a classic case of “regulatory capture” — it is more focused on the needs of the industry it is supposed to regulate than on the consumers it is supposed to protect. Letting airplane makers certify their own planes is only one example. Another, I learned recently, is the way the agency approaches airline seats.

Who doesn’t hate the seats in economy class? They’re terribly uncomfortable — narrow and cramped. Before airline deregulation in 1978, most airline seats had 36 inches of legroom, or “pitch,” in airline jargon. Today, the legacy airlines have reduced seat pitch to 30 or 31 inches, while several low-cost airlines have cut it even more, to 28 or even 27 inches. Passengers emerge from long-distance flights with aching backs and stiff necks. Paul Hudson, the president of passenger rights group FlyersRights.org, told me that he views the misery that modern seats inflict a “health, safety and human rights issue.”

The reason seats are smaller is no secret. The narrower the seat, and the smaller the pitch, the more seats airlines can cram into planes. More seats mean more revenue. Plus, by installing a large class of uncomfortable seats, airlines are creating the desire among passengers who can afford it to pay for a smaller number of more comfortable ones.

“Sardine seating exists to allow airlines to squeeze passengers’ pocketbooks by threatening pain,” Hudson has said. Passengers in too-cramped seats sometimes get blood clots in their legs. Sickness can be passed more easily from one passenger to another when their seats are too close. And the crowded seats make it more difficult to evacuate in an emergency.

The Association of Flight Attendants also believes that the modern seat configuration poses dangers. In a memo it issued last October, it pointed to passenger “air rage,” increased conflict over bag storage and difficulties faced by disabled passengers — as well as evacuation worries — as problems caused by too many seats too close together. The flight attendants’ union concluded, “This is not an issue the market can fix. Safety needs to provide a bottom line.”

The health and safety of passengers is, of course, the whole point of the FAA’s regulatory authority. Yet it has dealt with the seat situation by bending over backward for the industry. Consider evacuations. The regulations say that all aircraft must be able to be evacuated in 90 seconds. But, just as with plane certification, the agency allows airlines to do their own testing — and lets them use computer simulations instead of actual humans.

And when the airlines do use real humans for such tests, they hardly reflect real-world conditions. Take a look at this 2006 test for the Airbus A380 (https://www.youtube.com/watch?v=XIaovi1JWyY#action=share). Do you see anyone trying to grab their luggage from the overhead bin — something people often do during evacuations? Do you see any charging cords, or bags under passengers’ legs, or soda cans on open trays impeding the evacuation? Do you see any children? Anyone who’s elderly or disabled or overweight? The answer to all of these questions is no. With the test rigged to optimal conditions, the more than 800 passengers were off the plane with just three seconds to spare.

Hudson began agitating for the FAA to take the seat issues more seriously in 2015. That year, he filed a petition calling on the agency to set a minimum length for seat pitch and width. He cited both health reasons — the possibility of thrombosis and other injuries — and safety — the evacuation difficulties.

The FAA rejected his petition the next year, contending that its evacuation tests showed that smaller seats were safe. FlyersRights.org sued, and an appeals court ruled in 2017 that the FAA had not adequately considered the petition and said that it needed to address the evacuation issue. (The FAA could ignore the health issue, the appeals court said.)

In 2018, the FAA rejected the petition again. (“The FAA has no evidence that there is an immediate safety issue necessitating rulemaking at this time.”) Hudson sued again. That case was tossed on a technicality.

By then, Congress was getting involved. Democratic Representative Steve Cohen of Tennessee, a member of the House aviation subcommittee, introduced the SEAT Act. It called on the FAA to consult with other federal agencies about health issues posed by airline seats; to force airlines to prominently post the pitch and width of the seats on their aircraft; and to establish a minimum seat size using “the safety and health of passengers” as its criteria.

The airlines lobbied hard against the bill and managed to eliminate the first two requirements. But Senate Minority Leader Chuck Schumer of New York attached the third requirement as an amendment to the FAA reauthorization bill. That bill was signed into law in October 2018. It gave the agency a year to complete its work.

Fast forward to December 2019 — two months past the deadline set by Congress. That’s when the FAA finally got around to conducting some tests.

Given the FAA’s conclusion about the health issues raised by cramped seats — there are none — it all came down once again to evacuations. Were modern airline seats an impediment to evacuating an aircraft in 90 seconds?

The tests, conducted at an FAA research facility in Oklahoma City, were ludicrous. It used an aircraft interior with only 60 seats. All the “passengers” were between the ages of 18 and 60, with the majority younger than 30, according to Hudson, who watched some of the testing. Only one or two passengers were even mildly overweight. There were no impediments, such as baggage or pets. None of the women wore high heels. Oh, and one other thing: People who got out fastest could earn more money.

According to Hudson, the first test he saw had the seats set at a 16-inch width and a 28-inch pitch; the 60 passengers evacuated in 43 seconds. When the settings were 18-inch width and 32-inch pitch, the evacuation took 37 seconds. “Based on these tests, size matters,” Hudson told me. “It debunks the position of the plane manufacturers.”

Reflecting on the way the Oklahoma City tests were conducted, Charles Mauro, an engineering consultant who specializes in how people interact with products, put it this way: “The FAA ended up cherry-picking a user population to accommodate the airlines’ business model.” Exactly.

The FAA is supposed to release the test results in March. But what will it do with the information? It is hard to know. The agency also has a larger group studying evacuation standards. It says that the seat data will be given to the evacuation group. And then?

Then the FAA will have to decide whether it wants to anger Congress, which clearly wants higher seat minimums that would cost the airlines money, or the industry, which wants things just the way they are now.

I know where I’m placing my bet.

BLOOMBERG OPINION