SUPPORTING DENIAL OF EN BANC:
The question of whether a Supreme Court precedent has been overruled requires a clear statement from the Court.
A panel decision validating the new standard isn't in irreconcilable conflict with a contemporaneous (yet subsequent) panel holding that the earlier (conflicting) precedent still controls to a degree.
DISSENTING FROM DENIAL OF EN BANC; VOTING FOR EN BANC:
First panel holding controls; this risks stoking confusion.
VOTING FOR EN BANC:
If the statements in the subsequent holding were dicta, the court would have said that clearly; public and Congressional confusion over the state of the circuit law on the question.