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I can't speak to the law or NARA's interpretations, but as an interested member of the public I hope I can clear up a misconception.
The records are not closed to the public nor does the public need to pay a fee to a third party to see them.
According to the National Archives's website "Free access to Ancestry.com and Fold3.com is available in all Research Rooms at the National Archives, including those in our regional archives and Presidential libraries."
Furthermore, these records records will eventually be made available through the National Archives Catalog, and indeed many records scanned through one of the Archives's digitization partnerships have already been made available through the catalog.
See Digitization at the National Archives for more information, to include NARA Principles for Partnerships to Digitize Archival Materials.