Concurring.
I agree with the result reached by the District Court and agree that we should affirm its order. However, I respectfully reject the majority’s ruling on the merits, as I read Judge Ambro’s opinion, because it represents a significant departure, if not a quantum leap, from the issue before us.
Writing for the panel, brother Ambro does not address what the District Court did or the arguments raised by the parties on this unresolved yet important issue; the opinion actually ignores the issue presented on appeal. The Trustee seeks a per se ban on provisions granting indemnity to financial advisors for negligence. Houlihan Lokey takes the position that such provisions should be permissible and that the court should examine them on a case-by-case basis. The parties briefed the various aspects of that issue, including the propriety of professionals’ obtaining such indemnity and whether it was appropriate or necessary in the given setting. While, as the District Court noted, there is no binding caselaw, there are numerous cases that express differing views on the issue.1
*236Instead of addressing these arguments, Judge Ambro’s opinion ventures into the arena of corporate law and fashions an open-ended good faith business judgment rule, based upon Delaware corporate law principles, as the test for the “reasonableness” of advisors’ indemnity. It does so because it finds the concepts of negligence and gross negligence to be too results-oriented.
I do not doubt that scholars and professors — and indeed some practitioners — may have an aversion to distinctions made between negligence and gross negligence and have therefore suggested that corporate directors should not be liable if they follow the appropriate process and exercise their business judgment. However, that is not the issue before us, nor is it a concept that either of the parties has even remotely embraced.
Responding to a line of inquiry at oral argument, the Trustee and Houlihan Lo-key filed supplemental briefs specifically addressing the propriety of our creating a new “reasonableness” standard separate and apart from the negligence principles embodied in their agreement. They specifi*237cally requested that we not do so.2 As both parties have noted, we should decide the issue presented to us, not craft new rules or address matters beyond the scope of the appeal. I should note that I would favor Judge Alito’s reading of Judge Am-bro’s opinion, but fear it will not be so read.
I cannot help but wonder why we should resort to reasoning that “eschews the inherent imprecision between shades of negligence” when the parties bargained under traditional negligence principles and rules. And why should we concern ourselves with Delaware law applicable to directors, when the retention agreement here was specifically governed by New York law and was meant to govern a relationship not with directors, but between a company and its professional financial advisors?3 Financial advisors are not directors, and I do not find their status to be analogous.
I must confess that although I would acknowledge that my colleagues sincerely believe that their view represents a contribution to our thinking about the issue at hand, I find it very difficult to conceive of the application, and implications, of this new test. Presumably, the first and third prongs — “disinterested” and “good faith” — are easily met, but what does the second prong mean? When does a financial advisor not have “a reasonable awareness of available information after prudent consideration of alternative options”?
In a footnote, Judge Ambro seemingly applies the post-hoc test he espouses (n.19), concluding that the evidence before the District Court revealed no personal interest on the part of Houlihan Lokey in the United Artists cases, and that, because there were no allegations of imprudent consideration by Houlihan Lokey of the available financial options or of bad faith, Houlihan Lokey is entitled to indemnity. Even were I to agree that the creation of a new test is warranted, surely this is not the way to apply it. This conclusory treatment leaves us uncertain as to how the test should be applied in other instances. I cannot tell ’ whether it will provide a blank check for substandard performance (as the Trustee urges), or will foment process-oriented litigation (as Houlihan Lokey submits). Further, I cannot imagine what guidance we are giving to the District Court by changing the rules midstream, *238much less what implications this poses for indemnity agreements already in force.
The rationale for adopting this test— namely, an aversion to a “results-oriented” approach to liability, and therefore, indemnity — goes far beyond the parameters of our judicial function, into the sphere of policy making. To my mind, the adoption of a business judgment rule as providing a standard for indemnification of professional advisors is fraught with policy considerations, none of which has been explored in this case. These are the types of concerns that should be considered in the first instance by a legislative, rather than a judicial, body. Further, the test can only be applied after the fact, thus essentially emasculating the bankruptcy courts’ testing of terms of retention at the time of retention, as is clearly envisioned by section 328(a). I fear that our grafting such a test onto section 328(a) goes beyond our ken, especially here where we are reviewing a determination by the District Court that followed traditional lines of reasoning.
The issue actually before us, as framed by the parties and decided by the District Court, deserves our attention. Is there something essentially problematic with the concept of professionals bargaining for indemnity against their own negligence? Should it ever be permitted? If so, under what circumstances? We should address the issue as presented, because the law is unsettled and our bankruptcy and district courts need guidance.
The District Court considered the merits of this issue very seriously and thoroughly, entertaining briefing and oral argument that spans nearly 500 pages of the voluminous appendix submitted on appeal. Instead of creating a new test, I would affirm by disavowing the notion of a per se ban, engaging in a discussion of the factors that the courts have examined in considering “reasonableness” on a ease by case basis under section 328, and approving the ultimate result reached by the District Court based on the extensive record presented.4
The review and assessment of the law and the record — rather than the creation of a slippery slope for testing consulting professionals’ liability in the bankruptcy arena — should be the basis of our rule. The concluding paragraphs of the opinion *239seem to venture into an analysis of “reasonableness,” noting two aspects of the indemnity agreement that are, respectively, an “end run” around “acceptable public policy” (the indemnity for gross negligence when that negligence is not solely the cause of damages), and not an “indemnity-eligible activity” (the indemnity for contractual disputes with Debtors). These aspects were never argued or briefed, but I suggest that it is this type of scrutiny of the provisions of the retention agreement that is called for under the “reasonableness” standard of section 328(a). I agree that, assessed under the “reasonableness” standard, these two terms do not pass muster. But, unfortunately, we are left confused as to whether the overall inquiry is, as urged in the thrust of the opinion, a post hoc examination, or whether some scrutiny — on some reasonableness basis— is to be undertaken at the outset. It is hard to imagine that reasoning done at the outset, if it does occur, could be anything other than a complete and binding determination of “reasonableness,” making some after the fact business judgment rule unnecessary and uncalled for. Once again, we are left questioning how to apply this test.
Therefore, although I concur in the resulting affirmance, I would arrive at that result via an entirely different route.
. In rejecting a per se ban on indemnity provisions, the District Court focused on the "reasonableness”’ language in section 328(a) and *236conducted an independent analysis of this agreement. A number of other courts favor this approach and have used it to uphold some indemnity provisions and reject others. For example, the District Court for the Northern District of Illinois and the Bankruptcy Court for the Southern District of New York have both upheld similar indemnity provisions, rejecting the Trustee’s argument that such provisions should be per se unreasonable. In re Comdisco, Inc., Nos. 02 C 1174 & 02 C 1397 (consolidated), 2002 WL 31109431, at *5, 2002 U.S. Dist. LEXIS 17994, at *16 (N.D.Ill. Sept. 23, 2002); In re Joan & David Halpern, Inc., 248 B.R. 43, 47 (Bankr.S.D.N.Y.2000). Houlihan Lokey cites to numerous non precedential decisions of the Bankruptcy Courts for the District of Delaware doing the same. A’ee Br. at 22. Bankruptcy Courts in California and Colorado have also subjected indemnity provision to a full reasonableness inquiry. See, e.g., In re Metricom, Inc., 275 B.R. 364, 371 (Bankr.N.D.Cal.2002) (stating that "the issue is whether particular terms are reasonable under given circumstances, and such a determination can only be made on a case by case basis”) (ultimately rejecting provision at issue); In re Gillett Holdings, Inc., 137 B.R. 452, 458-59 (Bankr.D.Colo.1991) ("This Court will not go so far as to hold that indemnity provisions per se are either unacceptable or unnecessary in these circumstances. Indemnity provisions must be analyzed on a case-by-case basis.”) (citation omitted) (ultimately rejecting provision at issue); In re Mortgage & Realty Trust, 123 B.R. 626, 630 (Bankr.C.D.Cal.1991) (rejecting provision at issue because debtor had presented no evidence of its reasonableness).
In support of her theory that indemnity provisions should be banned outright, the Trustee relies on an opinion from one of our own bankruptcy courts, In re Allegheny International, Inc., 100 B.R. 244, 247 (Bankr.W.D.Pa.1989). In Allegheny, Judge Cosetti decided that financial advisors were fiduciaries of the debtors who hired them. Id. at 246. He went on to appropriate Judge Cardozo's famous remarks in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928), for the proposition that fiduciaries owe the highest standard of care, and to conclude that "holding a fiduciary harmless for its own negligence is shockingly inconsistent with the strict standard of conduct for fiduciaries.” Allegheny, 100 B.R. at 247. Courts faced with this issue have referenced the "fiduciary” language, but have generally looked at an advisor’s fiduciary status as one factor in a reasonableness analysis, not as support for a per se ban on indemnity. See, e.g., Gillett, 137 B.R. at 458; Mortgage & Realty Trust, 123 B.R. at 630.
Here, the parties have not argued that professionals like Houlihan are fiduciaries as such, and I suggest that resort to nomenclature for resolution of the issues before us would be wrong. The issue here is "reasonableness” under section 328(a). An agreement about what status might be attributed to professionals based on analogous corporate trust principles should give way to a consideration of what is reasonable under all of the circumstances in the bankruptcy context.
. In their Supplemental Briefs, the Trustee and Houlihan Lokey both pointed out the dangers inherent in our creating a new standard in this case. First and foremost, both parties noted that our appellate jurisdiction should be limited to deciding the issue presented, that is, whether the District Court abused its discretion in approving the retention agreement. See App. Supp. Br. at 3 ("The crafting of new negligence standards ... seems inconsistent with the scope of this appeal.”)
The parties also implored us not to venture into the realm of the legislature, as we are not equipped to weigh the many complicated interests that go into bankruptcy administration, nor can we predict the implications of a new untested standard or the ways it might upset the current balance of incentives. App. Supp. Br. at 6-7; A'ee Supp. Br. at 6. The Trustee worries that the majority’s test will essentially excuse all professional misconduct by financial advisors, while for its part, Houli-han Lokey fears the rigid test will undermine its own safeguards, exposing it to "process” litigation by creditors unhappy with their recovery, even where there was no basis on which to attack the substantive advice actually given. App. Supp. Br. at 9; A’ee Supp. Br. at 5. In short, neither party revealed any inclination to support what the majority has done. Rather, both vehemently argued against this approach.
. Although United Artists is a Delaware corporation, its retention agreement with Houli-han Lokey contains an explicit choice of law provision specifying New York law as the governing state law. App. at 132-33.
. Among the specified factors, and facts, weighing in favor of the reasonableness of this agreement in the situation presented here are: 1) the retention of Houlihan Lokey was in the best interest of the estate, as it played a crucial role in the restructuring; 2) United Artists' creditors approved the agreement and have never objected to the indemnity provision; 3) the agreement did not provide blanket immunity, but rather contained detailed procedures for determining at a later date whether a particular application for indemnity should be granted; 4) Houlihan Lokey had been retained pre-petition under an agreement containing an indemnity clause. Most of its work was performed prior to the initiation of bankruptcy proceedings, so, relatively speaking, its post-bankruptcy indemnity was not particularly significant; 5) United Artists and Houlihan Lokey are sophisticated business entities with equal bargaining power who engaged in an arms length negotiation; 6) such terms are viewed as normal business terms in the marketplace, see In re Busy Beaver Bldg. Centers, 19 F.3d 833, 849 (3d Cir.1994) (condoning a "market-driven” approach to reasonableness); and finally, 7) under the terms of section 328, the District Court retained discretion to modify the agreement "if such terms and conditions prove to have been improvident.” 11 U.S.C. § 328(a). Indeed, we have encouraged similar exercises of discretion in the realm of post-bankruptcy fees for attorney services to debtors under 11 U.S.C. § 330. In re Top Grade Sausage, Inc., 227 F.3d 123, 132-33 (3d Cir.2000). I would therefore approve the indemnity agreement, subject to the two caveats noted by the majority, as discussed in the penultimate paragraph of this concurrence.