I agree with the majority that respondents’ challenges to the subpoena under New York law (i.e., Executive Law § 296-a) are unavailing because the reach of petitioner’s subpoena power “is not limited to persons or entities that are creditors or officers, agents or employees of a creditor” and because there is ample factual support for the exercise of this power. I further agree *546that the subpoena should be upheld with respect to each of the respondents. I do not agree, however, with the majority’s discussion of the preemption issue as it pertains to one of the respondents.
Respondents argue that “[i]f a state law improperly impairs, obstructs, or conditions the ‘business of banking’ conducted by a national bank, then it will be preempted, regardless of the manner in which the national bank determines to conduct that business, whether through its own employees, subsidiaries, or agents.” In addition, respondents advance the distinct contention that the exclusive agent of a national bank can invoke federal preemption under the National Bank Act (NBA). In this regard, respondents rely, inter alia, on Watters v Wachovia Bank, N. A. (550 US 1 [2007] [holding that operating subsidiaries of national banks are entitled to the same immunity from state visitation as the national banks]).
To the extent respondents’ challenge to the subpoena on preemption grounds is based on the contention that petitioner cannot enforce generally applicable New York laws relating to the extension of credit against either the national bank that issued the short-term “Pay Stub,” “Holiday” or “Refund Anticipation” loans (collectively, RALs) or its agents for the purpose of the RAL program, that contention is refuted by the Supreme Court’s recent decision in Cuomo v Clearing House Assn., L. L. C. (557 US —, —, 129 S Ct 2710, 2721 [2009]). In Clearing House, however, the Supreme Court also held that the issuance of an executive subpoena by the New York State Attorney General to a national bank would entail the exercise of “visitorial powers” that the NBA forbids the states from exercising (557 US at —, 129 S Ct at 2721-2722). Thus, respondents’ challenge to the subpoena is bolstered by Clearing House to the extent they are correct that an agent of a national bank, like a subsidiary of a national bank, can assert the rights of the national bank under the NBA.
However, respondents repeatedly state both in their main brief and their reply brief that, for the purpose of the RAL program, they are not agents of the national bank that extended the RALs at issue. I agree and would reject their preemption argument for this reason. The fact that certain other H&R Block entities and independent franchisees not named in the subpoena are such agents is of no moment as the business relationship between respondents and those agents is insufficient to entitle respondents to the protections of the NBA (see SPGGC, LLC v Blumenthal, 505 F3d 183, 190 [2d Cir 2007]; cf. County Court of Ulster Cty. v Allen, 442 US 140, 155 [1979]).
*547The majority agrees with respondents that respondents H&R Block Tax and Business Services, Inc. and H&R Block Mortgage Corporation are not agents of the national bank for the purpose of the RAL program. Although I agree that neither of these two respondents are such agents, I disagree with the majority’s conclusion that respondent H&R Block Tax Services, Inc. is such an agent of the national bank. The distribution agreement the majority relies on simply does not establish that respondents are wrong and Tax Services is an agent of the national bank for the purpose of the RAL program (see generally New York Mar. & Gen. Ins. Co. v Tradeline [L.L.C.], 266 F3d 112, 122 [2d Cir 2001] [under “New York common law ...(,) an agency relationship results from a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent by the other to act” (internal quotation marks omitted)]). Moreover, the mere fact that Tax Services is a franchisor of other H&R Block entities is not sufficient to establish that it is an agent of the franchisees (Terrano v Fine, 17 AD3d 449 [2d Dept 2005]).
In any event, I would regard the concession by Tax Services that it is not an agent of the federal bank for purposes of the RAL program as fatal to respondents’ preemption argument. After all, the status of Tax Services as such an agent is a necessary condition to quashing the subpoena on preemption grounds. However, the majority holds that “there is no preemption and respondents must comply with the subpoena, even if Tax Services, or any other respondent, is deemed an agent of HSBC in connection with the RAL program.” That is so, according to the majority, because petitioner “is not investigating HSBC’s conduct . . . [but] whether marketing practices with respect to the RALs violate the State’s Human Rights Law.”
Under the majority’s analysis, petitioner could issue an executive subpoena to the national bank requiring it to produce all of its documents relating to the marketing of the RALs. The same rationale the majority employs here—the investigation into marketing practices with respect to the RALs “would not affect [the national bank’s] ability or discretion to originate RALs”—would apply to such a subpoena. Although I need not decide the point, it is difficult to see how the subpoena could be upheld consistently with the provisions of federal law specifying that, with exceptions not relevant here, national banks are not subject to visitorial powers (see 12 USC § 484 [a]; 12 CFR 7.4000 [a]). The prohibited visitorial powers include the issuance of an executive subpoena requiring production of the bank’s records, and nothing in the statute or the regulation—or, for that mat*548ter, in Clearing House—suggests that the prohibition turns on a nicety such as whether the subpoena or other visitorial power would incidentally or significantly affect the exercise of the bank’s powers. None of the decisions of the district courts cited by the majority support its position that the subpoena is enforceable even if Tax Services is an agent of the national bank entitled to the same immunity from state visitation as the national bank. Two final points: first, the subpoena is not limited to records relating to the marketing of the loans; second, the marketing of the loans is hardly unrelated to the terms of the loans, as petitioner of course is not investigating the marketing of the loans because of its high regard for their terms.