Heidi BECKER, et al., Plaintiffs, Appellants, v. FEDERAL ELECTION COMMISSION, Defendant, Appellee, 230 F.3d 381

LYNCH, Circuit Judge. Presidential candidate Ralph Nader and others assert that the prohibition in the Federal Election Campaign Act on the use of corporate money “in connection with” federal elections invalidates certain Federal Election Commission regulations governing the funding of presidential debates. Those regulations permit corporations to make contributions from their general treasuries to qualified nonprofit, nonpartisan organizations staging federal candidate debates.

Suit was brought in anticipation of the debates to be staged by the Commission on Presidential Debates (CPD) before the November 2000 Presidential Election. The district court dismissed Naders claims on the merits and entered judgment on September 14, 2000. Nader appealed and this court granted expedited review. We hold, contrary to the FEC, that we have

Article III jurisdiction and, contrary to Nader, that the plaintiffs facial challenge to the debate regulations fails. I. With the 2000 presidential debates on the horizon, Nader, nominee of the Green Party, together with organizations supporting his campaign, as well as both supportive and uncommitted individual voters, brought this action on June 19, 2000 in the United States District Court for the District of Massachusetts.

The plaintiffs challenge as ultra vires two FEC regulations, 11 C.F.R. §§ 110.13 and 114.4(f), which • allow qualified nonprofit, nonpartisan organizations to accept corporate donations in staging presidential debates and allow corporations to make such donations. The plaintiffs claim that the regulations violate a provision, of the Federal Election Campaign Act, 2 U.S.C. §§ 431 et seq., which makes it unlawful for a corporation to make any “contribution or expenditure in connection with” the presidential elections. Id. § 441b(a).

The Act defines “contribution or expenditure” to include “any direct or indirect payment ... or gift of money, or any services, or anything of value ... to any candidate, campaign committee, or political party or organization.” Id. § 441b(b)(2). On June 29, the plaintiffs moved to preliminarily enjoin the FEC from implementing the challenged regulations and requested that the district court order the FEC to enforce the FECA’s prohibition on corporate contributions so as to prevent corporate sponsorship of the presidential debates.

The FEC moved to dismiss for lack of jurisdiction, arguing that none of the plaintiffs could demonstrate

Article III standing and that the plaintiffs had failed to exhaust their administrative remedies. After holding oral argument on both motions on August 14, 2000, the district court on September 1 denied the FEC’s motion to dismiss, concluding that Nader and the Green Party had standing to challenge the FEC’s. debate regulations and that plaintiffs were entitled to review because the futility exception to the exhaustion requirement of the Administrative Procedure Act applied. The court denied plaintiffs’ motion for a preliminary injunction, however, finding no likelihood of success on the merits, on the basis that the regulations were based on a reasonable

interpretation of the FEC A entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). On September 6, the district court entered final judgment in accordance with a stipulation of the parties, and plaintiffs filed a motion for expedited review in this court, which the FEC opposed. We granted plaintiffs’ motion on September 26, 2000, ordered expedited briefing, and heard oral argument on October 5. II. We first address the FEC’s argument that plaintiffs have failed to exhaust their administrative remedies.

Like the district court, we think the plaintiffs are not required to petition the FEC before bringing a facial challenge to the agency’s regulations. Because the FECA itself has no provisions governing judicial review of FEC regulations, the judicial review procedures of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., apply to a facial challenge to the FECA’s implementing regulations. See Perot v. FEC, 97 F.3d 553, 560-61 (D.C.Cir.1996); Faucher v. FEC, 743 F.Supp. 64, 68 (1990), aff'd 928 F.2d 468 (1st Cir.1991).

The FEC has steadfastly maintained that these debate regulations are valid and there is no point in requiring plaintiffs to go through exhaustion. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997); Brown v. Secretary of HHS, 46 F.3d 102, 113-14 (1st Cir.1995). III. We next consider whether the plaintiffs have standing. Standing doctrine involves “a blend of constitutional requirements and prudential considerations.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

The constitutional component of standing stems directly from

Article Ill’s limitation of federal judicial power to deciding justiciable cases or controversies. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To establish standing, it does not suffice for plaintiffs to show merely that they bring a justiciable issue before the court; they must show further that they have a sufficiently personal stake in the issue.

This means that plaintiffs must show: (1) that they have suffered or are in danger of suffering some injury that is both concrete and particularized to them; (2) that this injury is fairly traceable to the allegedly illegal conduct of the defendant; and (3) that a favorable decision will likely redress the injury. See Valley Forge, 454 U.S. at 472, 102 S.Ct. 752; see also Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir.1993). We first determine whether Nader has standing; we then turn to the voter plaintiffs.

A Whether Nader Has Standing Nader argues that the FEC regulations allowing corporate sponsorship of the presidential debates have injured him by making corporate contributions available to his opponents (in the form of free television exposure during the debates) when such contributions are not available to him. Consequently, Nader has been put at a competitive disadvantage in the presidential race, and as a result he has had to alter his campaign strategy and spend more on advertising in order to compensate for this disadvantage.

The'FEC’s central counterargument is that the injuries Nader alleges are not fairly traceable to the FEC regulations he challenges. Nader’s standing theory is misplaced, the FEC contends: while it might be true that Nader’s exclusion from the debates puts him at a competitive disadvantage, Nader is not challenging his exclusion from the debates.

As plaintiffs state in their brief: “This is a lawsuit about the funding of presidential debates, not a challenge to the rules governing participation in debates.” Moreover, Nader concedes that, even if FEC regulations did not allow corporate sponsorship of the debates, the debates would likely be held anyway, with funding coming from public sources or the media; and Nader makes no claim that in such event he would have a better chance of being invited to participate.

Thus Nader has failed to show, the FEC concludes, that there is a causal nexus between corporate sponsorship of the debates and the injuries he alleges as his basis for standing. In reply, Nader argues that there is such a causal nexus. At the time that he brought this suit, Nader still stood a chance of being invited to participate in the debates. Yet if he were invited, he says, he would be forced to decline the invitation due to his principled stand against accepting corporate contributions.

The consequences of this Faustian dilemma, he argues, suffice for standing: not only did it create the potential injury of having to cede to his opponents the advantage of free television exposure, but it also forced him presently to conduct his campaign and make advertising expenditures on the assumption that no such exposure would be available to him. In this sense, corporate sponsorship threatened to exclude him from the debates and had a palpable and immediate impact on his campaign strategy and expenditures. In support of his position, Nader cites' Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 36 (1st Cir.1993). In that case, Elizabeth Leonard, a Rhode Island gubernatorial candidate, challenged a state campaign finance law requiring all candidates, at the time they declared their candidacies, to choose whether to accept public funding for their campaigns. The law at issue attached certain benefits to the acceptance of public funding, such as free air time on community television and higher caps on campaign contributions. See id, at 29-30. Leonard chose to decline public funding and thereby to forego the accompanying benefits. As a result, this court held, she had standing.

Given Leonard’s choice not to accept public funding, the law put her at a potential disadvantage as to any publicly funded opponents she might face, forcing her to structure her campaign to anticipate and offset that disadvantage. See id. at 36-37. “In our view,” we held, “such an impact on the strategy and conduct of an office-seeker’s political campaign constitutes an injury of a kind sufficient to confer standing.” Id. at 37.

Nader argues, and the district court agreed, that his case is analogous: given Nader’s choice not to accept corporate contributions, the FEC’s regulations allowing corporate sponsorship of the debates effectively bar him from participating even if he qualifies for an invitation.

He is thus put at a potential disadvantage in the event that he is invited and forced by his principles to decline the invitation; and he suffers a consequent present harm, in that he has been forced to structure his campaign to offset this potential disadvantage—e.g., by spending more on advertising than he would if there remained a chance that he could appear in the debates. While the question is close, we find that Nader does have vStanding under Vote Choice. Nader has been and continues to be a significant candidate in the 2000 presidential race.

At the time he brought this suit, it was a genuinely open question whether he would be invited to the debates: Nader brought suit in June 2000; the CPD’s first determination of which candidates would be invited to the debates was scheduled for Labor Day; within that time, it was certainly possible that Nader would be able to meet the CPD’s eligibility threshold of a fifteen-percent showing of support in the national polls.

Nader thus reasonably claims that, at the time he brought suit, corporate sponsorship of the debates loomed as a potential stumbling block in the path of his campaign, which forced him to make significant adjustments to his campaign strategy and use of funds. “[W]e see nothing ‘improbable’ about the proposition,” and we do not think it proper to second-guess a candidate’s reasonable assessment of his own campaign. See Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 698, 706, 145 L.Ed.2d 610 (2000) (finding standing to turn on the reasonableness of plaintiffs’ fear that defendant’s conduct would interfere with their activity). We similarly granted credence in Vote Choice to plaintiff Leonard’s claim that she had to adjust her campaign to account for the possibility of facing a publicly funded opponent, even though in the end that possibility did not materialize. Vote Choice, 4 F.3d at 37; see also Vote Choice, Inc. v. DiStefano, 814 F.Supp. 195, 204 (D.R.I.1993).

To probe any further into these situations would require the clairvoyance of campaign consultants or political pundits — guises that members of the apolitical branch should be especially hesitant to assume. The FEC attempts to distinguish Vote Choice from this case on the grounds that the plaintiff in Vote Choice was directly subject to the law she challenged: the law specifically required all candidates to choose whether to accept public funding. By contrast, the FEC regulations in question here regulate not candidates, but rather debate staging organizations, such as the CPD, and their corporate donors.

Thus, the FEC argues, the regulations could not possibly have put Nader to a “coerced choice,” as was at issue in Vote Choice, see 4 F.3d at 37, simply because the regulations do not apply to Nader at all. In short, the argument goes, the plaintiffs choice in Vote Choice was coerced by law, while Nader’s choice is wholly self-imposed. The FEC’s formalistic distinction, however, does not withstand scrutiny.

The FEC regulations Nader challenges allow the CPD to accept corporate funds; the CPD’s acceptance of corporate funds in turn presents Nader with a choice of whether to participate in corporate-sponsored debates. Thus, but for the regulations, Nader would not be coerced to make the choice. Granted, the coercion wrought by the regulations is indirect, but that makes no difference; the choice is still fairly traceable to the regulations. Cf. Fulani v.

League of Women Voters, 882 F.2d 621, 628 (2d Cir.1989) (finding candidate’s exclusion from debates traceable to government’s refusal to revoke League’s tax-exempt status, where “[b]ut for the government’s refusal ... the League, as a practical matter, would have been unable to sponsor [the debates]”). Moreover, this is not a case like Lujan v.

Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), where the agency is alleged to have unlawfully regulated a third party, and the plaintiffs standing depends on an unpredictable question of whether the third party will use its discretion under the regulation so as to harm the plaintiff. See id at 562, 112 S.Ct. 2130. In this case, whether the CPD will choose to accept corporate funds to help stage the 2000 presidential debates is not unpredictable; the CPD had already chosen to do so by the time Nader brought suit.

In addition, the FEC’s analysis of Vote Choice, as the FEC itself suggested, at oral argument, leads to the result that no candidate could ever challenge the FEC regulations in question here, regardless of how likely he or she was to be invited to debate. If the FEC is right that only those directly governed by the regulations can challenge them, then only debate staging organizations such as the CPD or their corporate donors could ever bring challenge. But these parties are beneficiaries of the regulations, and the regulations are permissive with respect to them.

Hence, these parties are unlikely ever to have any incentive — or, likewise, standing — to seek to invalidate the regulations insofar as they permit corporate sponsorship of the debates. In this respect, then, the regulations might effectively be immune from judicial review. We see no reason to read Vote Choice to imply this result.

Finally, we reject the FEC’s suggestion in its brief that Nader’s choice is self-imposed, that it “only exists because he perceives a dilemma, not because it appears anywhere in the regulations.” Such a view would raise too high a bar for standing; clearly, one who challenges a governmental action may not be denied standing merely because his challenge in a sense stems from his own choosing.

For example, if instead of involving corporate sponsorship, this case instead involved regulations allowing the CPD to impose speech restrictions on debate participants' — e.g., a requirement that the participants say a word of gratitude to the CPD’s underwriters — there would hardly be question that the debate participants would have standing to challenge such regulations, even though them objection might stem purely from a choice of conscience. Cf., e.g., Rust v.

Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (no standing question raised where doctors challenged regulations conditioning receipt of funds on compliance with speech restrictions); Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (self-censorship is harm sufficient for standing). In sum, the FEC regulations Nader challenges have caused him sufficient injury for the purposes of standing.

By allowing corporate sponsorship of the debates, the regulations threatened to force Nader to decline an invitation to participate in the debates, and that threat affected the conduct of his campaign.

In light of the FECA’s concern with ensuring that corporate funds do not undermine the fairness of federal elections, we find that Nader has claimed sufficient unfairness to his campaign to establish standing. “To hold otherwise would tend to diminish the import of depriving a serious candidate for public office of the opportunity to compete equally for votes in an election,” and would make it too difficult for candidates in Nader’s position to challenge FEC regulations thought to impinge on that opportunity. See Fulani v. League of Women Voters Education Fund, 882 F.2d 621, 626 (1989).

There remains, however, a question of redressibility. At the time he brought suit, Nader could have been provided with relief that would have redressed his injury — namely, a judgment in effect preventing corporate sponsorship of the debates in time to preserve the possibility of his participation. Now that the 2000 presidential debates are over, such relief is no longer available. However, this subsequent redressibility problem is one of mootness, not standing. See Advanced Mgmt. Tech., Inc. v.

FAA, 211 F.3d 633, 636 (D.C.Cir.2000) (noting that “[sjtanding is assessed at the time the action commences,” whereas mootness concerns whether “a judiciable controversy existed but no longer remains”) (citing Friends of the Earth, 120 S.Ct. at 709) (internal quotation marks omitted). And the FEC conceded at oral argument that Nader’s case is not moot.

As other courts have held in similar cases, this sort of case qualifies for the exception to mootness for disputes “capable of repetition, yet evading review”: corporate sponsorship of the debates is sure to be challenged again in future elections, yet, as here, the short length of the campaign season will make a timely resolution difficult. See Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 628 (2d Cir.1989); Johnson v. F.C.C., 829 F.2d 157, 159 n. 7 (D.C.Cir.1987).

Hence, Nader’s case is not moot, and he has satisfied the requirements for standing. B. Whether Voters Have Standing The voter plaintiffs assert two grounds for standing. First, they argue that, as voters, they are harmed directly by the corruption of the political process allegedly caused by corporate sponsorship .of the debates. Second, the voters who have decided to vote for Nader argue that, as supporters of Nader, they suffer derivatively from any injury the FEC regulations cause him.

As to the first argument, the harm done to the general public by corruption of the political process is not a sufficiently concrete, personalized injury to establish standing. Plaintiffs cite to FEC v. Akins, 524 U.S. 11,118 S.Ct. 1777; 141 L.Ed.2d 10 (1998), for the proposition that any voting-related injury is per se sufficiently concrete and personalized to establish standing. But Akins does not open the door so wide. Akins held that individual voters had standing to challenge the FEC’s decision not to subject the American Israel Public Affairs Committee to certain disclosure requirements.

The Court’s decision did not rest merely on the fact that the voters there had suffered a “voting-related” injury. Rather, what was important was that the voters had been denied access to information that would have helped them evaluate candidates for office, when such information was specifically required by statute to be disclosed to the public. See Akins, 524 U.S. at 21, 118 S.Ct. 1777; see also Common Cause v.

FEC, 108 F.3d 413, 418 (D.C.Cir.1997) (limiting “informational standing” under FECA to cases in which plaintiffs are denied information that is “both useful in voting and required by Congress to be disclosed”). In con-' trast, the plaintiffs here allege no such particularized burden they will suffer as a result of corporate sponsorship of the debates. Their concern for corruption of the political process “is not only widely shared, but is also of an abstract and indefinite nature,” comparable to “the common concern for obedience to law.” Akins, 524 U.S. at 23, 118 S.Ct. 1777 (internal quotation marks omitted).

As to the argument of Nader’s supporters that they suffer derivatively from his injury, again, such argument sweeps too broadly. Regardless of Nader’s injury, his supporters remain fully able to advocate for his candidacy and to cast their votes in his favor. Compare Buckley v. Valeo, 424 U.S. 1, 94, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“[T]he denial of public financing to some Presidential candidates is not restrictive of voters’ rights .... ”), and Gottlieb v.

FEC, 143 F.3d 618, 622 (D.C.Cir.1998) (“The extra infusion of funds into the Clinton campaign did not impede the voters from supporting the candidate of their choice.”), with Bullock v. Carter, 405 U.S. 134, 143-44, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (holding that expensive filing fees keeping candidates from appearing on ballot harmed voters by preventing them from voting for the candidate of their choice). The only derivative harm Nader’s supporters can possibly assert is that their preferred candidate now has less chance of being elected.

Such “harm,” however, is hardly a restriction on voters’ rights and by itself is not a legally cognizable injury sufficient for standing. See Gottlieb, 143 F.3d at 622 (holding that voters cannot establish standing solely on basis that their candidates have been unfairly treated). IV. Having determined that Nader has standing, we turn to his challenge to the validity of the debate regulations. The issue before us is a narrow one: whether the FEC debate regulations allowing corporate funding of certain debate staging organizations, 11 C.F.R. §§ 110.13 and 114.4(f), violate, on their face, the FECA.

The exclusion of Nader from the 2000 Presidential election debates is not at issue, nor is any constitutional claim asserted. We review de novo the district court’s decision to uphold the regulations, a question of law. Strickland v. Commissioner, Maine Dept of Human Services, 96 F.3d 542, 545 (1st Cir.1996). The parties dispute whether this case requires deference to the administrative agencys determination under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Chevron governs the judicial review of agency regulations to ensure that they comply with the applicable statutory scheme, and entails a two step analysis. If Congress has spoken to the precise question at issue and the intent of Congress is clear, that is the end of the matter. Id. at 842, 104 S.Ct. 2778. Agency regulations in accord with that unambiguously expressed intent are upheld; those that contravene that intent are invalid.

But if the statute is silent or ambiguous with respect to the precise issue, then the question becomes whether the agencys regulations are based on a permissible construction of the statute. Id. at 843, 104 S.Ct. 2778. In assessing the agency’s construction of an ambiguous provision, courts, under this second step of Chevron, must defer to reasonable agency

interpretation and implementation of the provision. United States v. Haggar Apparel Co., 526 U.S. 380, 383, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). The FEC is the type of agency which is entitled to such deference where congressional intent is ambiguous. FEC v. Democratic Senatori al Campaign Committee, 454 U.S. 27, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981). Several key statutory provisions of the FECA are at issue.

The FECA prohibits corporations from making any contribution or expenditure “in connection with” any federal election, 2 U.S.C. § 441b(a), and defines “contribution or expenditure” to include “any direct or indirect payment ... or gift ... to any candidate, campaign committee, or political party or organization,” id. § 441b(b)(2).

This general prohibition is subject to three exceptions, which permit corporate funds to be used (1) for internal corporate communications; (2) for nonpartisan registration and get-out-the-vote campaigns by a corporation directed to its stockholders and executive and administrative personnel and their families; and (3) for the establishment of a separate segregated fund used for political purposes. Id. § 441b(b)(2)(A)-(C). In addition, the FECA’s general definition

section also addresses the term “expenditure,” defining it to include any payments made “for the purpose of influencing any election for Federal office,” id. § 431(9)(A)(i), but not to include “nonpartisan activity designed to encourage individuals to vote or to register to vote,” id. § 431(9)(B)(ii). Implementing these statutory provisions, in 1980 the FEC promulgated debate regulations to govern contributions and expenditures made in sponsorship of candidate debates; in 1996, it revised them.

Under the FEC’s regulatory scheme, corporate contributions and expenditures may be made to defray the costs of conducting candidate debates where those debates are held by nonpartisan organizations so long as those organizations and the structure of the debate meet certain criteria. Two interrelated regulations produce this result. First,

Section 110.13 delineates the requirements for debate staging organizations, debate structure, and criteria for candidate selection necessary to qualify for exemption from the contribution and expenditure restrictions. Debate staging organizations must either be nonprofit organizations that “do not endorse, support, or oppose political candidates or political parties,” or broadcasters that are “not owned or controlled by a political party, political committee or candidate.” 11 C.F.R. § 110.13(a).

The candidate debate must include at least two candidates and not be structured “to promote or advance one candidate over another.” 11 C.F.R. § 110.13(b). Finally, debate staging organizations are required to use “pre-estab-lished objective criteria to determine which candidates may participate in the debate” and may not rely solely on nomination by particular parties. 11 C.F.R. § 110.13(c). Second,

Section 114.4(

f) allows nonprofit debate staging organizations to accept funds donated by corporations to defray costs incurred in staging candidate debates and, on the flipside, expressly permits corporations to make such donations to qualified debate staging organizations. 11 C.F.R. § 114.4(f). Complementing these sections, the FEC regulations defining the terms “contribution” and “expenditure” as covered by the Act expressly exempt the funds used in staging a qualified candidate debate from the “contributions” and “expenditures” regulated by the FECA.

See 11 C.F.R. § 100.7(b)(21) (not included in “contributions”); id. § 100.8(b)(23) (not included in “expenditures”). In accordance with the requirements of the FECA, 2 U.S.C. § 438(d), the proposed regulations, along with the FEC’s analysis, were sent to Congress and did not become final until Congress had opportunity to express disapproval. Nader argues that these debate regulations permit corporate contributions to flow to candidates in violation of the general prohibition of

Section 441b(

a) and that such contributions do not fall within the limited exceptions of

Section 441b(b)(2)(A)-(C); further, he rejects the FEC’s contention that the regulations permissibly construe ambiguities in what corporate disbursements qualify as “contributions and expenditures” under the Act. Nader argues the FECs position must be rejected for several reasons. First, Nader contends that the general prohibition against corporate contributions and expenditures in

Section 441b(

a) stands alone and is not at all ambiguous. This prohibition, he says, reflects a clear congressional intent that corporate monies not go toward political activities unless they fall into one of the three narrowly drawn exceptions in

Section 441b(b), none of which is applicable to candidate debates. Hence this provision reveals an unambiguous congressional intent that corporate monies not be used to sponsor candidate debates. Second, Nader argues that when Congress enacted the more specific rules contained in

Section 441b governing the use of general treasury corporate funds in 1976, it narrowed the exemption from the prohibition on corporate contributions so as to permit only those “nonpartisan registration and get-out-the-vote campaigns” that are aimed at the corporations’ own “shareholders and executive or administrative personnel and their families.” 2 U.S.C. § 441b(b)(2).

While Nader acknowledges that Section 431(9)(B)(ii) contains a more general exception permitting funding for “nonpartisan activity designed to encourage individuals to vote or to register to vote,” that “permission” comes in the form of an exemption to the FECA’s general definition of “expenditure.” Nader maintains that the enactment of a specific provision dealing with corporate contributions and expenditures and defining those terms for that purpose renders the general definition inapposite, citing the principle that a specific statute governs over a more general one. See HCSC-Laundry v.

United States, 450 U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1981). The specific exception in

Section 441b(b)(2) for “nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive and administrative personnel and their families,” Nader argues, clearly does not exempt funding of candidate debates.

Moreover, even if read in tandem with the general exemption excluding expenditures for “nonpartisan activity designed to encourage individuals to vote or to register to vote” in Section 431(9)(B)(ii), Nader maintains that the statute still contains no ambiguity regarding the legality of expenditures for candidate debates because a debate cannot reasonably be described as such an activity. Since sponsoring candidate debates does not fall into these exceptions to the prohibition of

Section 441b(a), he contends that the clear intent of Congress as expressed in that prohibition must govern. Thus, Nader argues, there is no ambiguity in the statute that would permit the FEC, under the Chevron doctrine, to make policy interstitially. While disavowing any need to look at legislative history to clarify what Congress meant, Nader says that nothing in that history supports the FEC’s reading. And so, Nader concludes, there is no gap in the statute on the precise question of whether corporate funds can be used to finance electoral debates.

In the alternative, Nader argues that even under the second stage of Chevron these regulations should fail. Nader maintains that the regulations cannot be a permissible construction of the statute because they are inconsistent with the purposes of the Act. Nader alleges that the FECA seeks to restrict the influence of corporate monies in political elections in order to protect the integrity of the electoral system. Since the debate regulations instead promote corporate involvement in political activity, they are not a reasonable

interpretation of the FECA. Finally, Nader responds to the common sense observation that these debate regulations have been in place for more than twenty years, that they have governed many well-publicized debates, and that Congress never once intimated that the FEC rules were contrary to its intention. Nader says that this “silence” proves nothing: a busy Congress cannot be expected to police every agency action; indeed, in 5 U.S.C. § 801(

g) Congress forbade the courts to infer any such intent from its silence. The FEC responds that Nader’s emphasis on the narrowness of the exceptions in

Section 441b(b)(2)(

B) and Section 431(9)(B)(ii) is misplaced: the debate regulations do not interpret the scope of these exceptions, the FEC- contends; rather, they interpret what types of corporate disbursements count as “contributions and expenditures” in the first instance. The FEC relies on asserted ambiguities in

Section 441b as well as Section 431(9) to justify its policymaking activity with regard to candidate debates. The general language of those sections, the FEC contends, says nothing indicating any congressional consideration, much less a clear congressional intent, about whether (or in what circumstances) sponsorship of candidate debates should be treated as a “contribution” or “expenditure,” which the FEC claims is the “precise question at issue” in this case.

Since the general provisions leave this question open, the FEC argues that the FECA effectively delegates that question to the policymaking authority of the agency.

Moreover, the FEC suggests that its construction of the statute is reasonable in three additional respects: first, the narrow construction of the prohibitory language of the Act serves to protect First Amendment interests otherwise potentially implicated by it; second, the construction of the Act accords with Congressional intent as expressed in the legislative record; and third, the debate regulations serve purposes akin to those served by the existing exceptions to the statute’s prohibitions.

Thus the FEC insists that the debate regulations reflect a reasonable construction of the FECA that is due Chevron deference. Finally, the FEC also points to the fact that the debate regulations were submitted to Congress, which did not disapprove them, and have been in force quite publicly for twenty years. Our analysis under Chevron begins with the question of whether the FECA statutory scheme reveals a clear congressional intent to ban the particular activity of corporate sponsorship of the debates as permitted under the regulations.

We conclude that several aspects of the statutory scheme, rather than indicating a clear congressional intent on the issue, in fact foster ambiguity. As, a primary matter, it is not clear on the face of the

definitions of “contribution” and “expenditure” that corporate disbursements to nonpartisan debate staging organizations even fall within the scope of the Act’s coverage in the first instance.

Section 441b bars corporate contributions or expenditures “in connection with any election,” 2 U.S.C. 441b(a), including direct or indirect corporate payments or gifts “to any candidate, campaign committee, or political party or organization.” Id. § 441b(b)(2). Section 431(9) defines “expenditures” as any payments made “for the purpose of influencing any election for Federal office.” Id. § 431(9)(a)(i). In neither case is it clear that corporate disbursements to nonprofit debate staging organizations fall within the ambit of the respective

definitions, as such payments are not clearly “in connection with any election,” nor are they clearly “indirect payments ... to any candidate,” nor are they clearly made “for the purpose of influencing any election for Federal office.” These imprecise definitional phrases display the ambiguity present in the statutory scheme. The Supreme Court itself has observed (in a different context) that the phrase, “for the purpose of influencing any election,” is ambiguous. See Buckley v. Valeo, 424 U.S. 1, 79-80, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

In light of this uncertainty, the statute taken as a whole does not express a clear congressional intent with respect to the precise question at issue. Other language in the FECA reinforces our finding that the statute is ambiguous. First, that Congress intended to delegate broad policymaking discretion to the FEC is confirmed by the statutory charge that the FEC shall “formulate policy under the Act.” 2 U.S.C. § 437. Congress also lodged a degree of flexibility in the

definitions of “contribution” and “expenditure” in particular where it defined them to “include” certain uses and phrased the exceptions to their general prohibitions as enumerating activities that the terms “shall not include.” See id. § 441b. The Supreme Court has recognized an element of flexibility in the term “include,” as it indicates that “activities not specifically enumerated in that

section may nonetheless be encompassed by it.” FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 246, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). Thus the

definitions are not only of uncertain scope but also employ language suggestive of flexibility. The language and structure of the exceptions to the prohibitions also suggest ambiguity. The statutory phrase “nonpartisan activity designed to encourage individuals to vote or register to vote” at Section 431(9)(B)(ii) gives the Commission some leeway to interpret the term “activity” and to decide which activities so “encourage” people. In addition, the statutory structure gives rise to a second question: how the specific corporate funding prohibition and exception in

Section 441b(b)(2)(

B) are meant to operate-with the more general “encouraging activity” provision of Section 431 (9)(B)(ii). It is unclear whether the specific provision trumps the earlier “encouraging activity” exception by limiting it and removing any leeway in the Commission, as Nader contends, or whether Congress intended the two sections to work together and to provide some flexibility to the Commission. In light of these questions, we find the statute is not clear on its face and rules of statutory

interpretation do not compel any one particular answer to the precise question at issue. Resort to the legislative history, even if appropriate, fails to dispel this uncertainty and provide a clear Congressional intent. We explain, beginning with the amendments Congress has made to the Act in response to judicial developments. Although the language of the statute is seemingly broad, that language has often been reviewed by courts in light of constitutional constraints, that is, the First Amendment rights of those regulated. See United States v.

C.I.O., 335 U.S. 106, 123-24, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948) (union political endorsements directed to union members are not contributions or expenditure covered by the predecessor of the Act); MCFL, 479 U.S. at 249, 107 S.Ct. 616 (corporate communications about candidates that do not expressly advocate the election or defeat of a clearly identified candidate); Maine Right to Life Committee, Inc. v. FEC, 98 F.3d 1 (1st Cir.1996) (same), cert. denied, 522 U.S. 810, 118 S.Ct. 52, 139 L.Ed.2d 17 (1997); Clifton v.

FEC, 114 F.3d 1309 (1st Cir.1997) (corporate voter guides comparing the positions of competing candidates), cert. denied, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); Orloski v. FEC, 795 F.2d 156 (D.C.Cir.1986) (corporate donations to picnic during which incumbent candidate addressed constituents). These decisions, in turn, led Congress to amend the original statute. As the FEC notes, the statute has changed over time so as to mesh more smoothly with subsequent court decisions and other related statutes. The exceptions to the prohibition now set out in

Section 441b(

b) were added to the predecessor of

Section 441b in 1971 largely to codify earlier court decisions. See, e.g., Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 409-13, 421-27, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972) (exception allowing segregated political fund codified prior case law). Congress then refined the exceptions in 1974, excepting “nonpartisan activity designed to encourage individuals to vote or to register to vote.” See 2 U.S.C. § 431 (9)(B)(ii). . Finally, in 1976, Congress incorporated the prohibitions on corporate expenditures and the concomitant exceptions previously codified at 18 U.S.C. § 610 into the FECA with the enactment of

Section 441b, which specifically excepted from the prohibition on corporate expenditures the internal registration and get-out-the-vote activities described earlier. See 2 U.S.C. § 441b(b)(2)(B).

The FEC says that Congress illuminated how these provisions were meant to work together in the legislative history: The conferees’ intent with regard to the inter-relationship between sections [2 U.S.C. 431(9)(B)(ii) ] and [2 U.S.C. 441b(b)(2)(B) ] which permit such activities as assisting eligible voters to register and get to the polls, so long as these services are made available without regard to the voter’s political preference, is the following: these provisions should be read together to permit corporations both to take

part in nonpartisan registration and get out the vote activities that are not restricted to stockholders and executive or administrative personnel, if such activities are jointly sponsored by the corporation and an organization that does not endorse candidates and are conducted by that organization; and to permit corporations, on their own, to engage in such activities restricted to executive or administrative personnel and stockholders and their families. The same rule, of course, applies to labor organizations. H.R. Conf. Rep. No. 94-1057, at 63-64 (1976), U.S. Code Cong. & Admin. News at 946, 978-79.

Indeed, a key phrase in this legislative history indicates that Congress intended to permit corporate funding of “such activities as” assisting eligible voters. Once again, rather than collapsing ambiguity, this legislative history confirms it. Finally, although our conclusion that the debate regulations coincide with congressional intent would be the same in any event, we note that this view is consistent with Congress’s apparent acquiescence in the regulations under the “report and wait” requirements of the FECA.

Nader’s reliance on the admonition against inferring any intent from Congress’s silence in 5 U.S.C. § 801(

g) is inappropriate, as that provision is limited to proposed rules submitted to Congress under the disapproval mechanism established in 5 U.S.C. §§ 801 and 802, and hence does not apply to regulations promulgated by the FEC under 2 U.S.C. § 438(

d) long before the enactment of 5 U.S.C. § 801 in 1996. Moreover, this is not a situation of complete congressional inaction; the failure to disapprove of the current debate regulations takes on additional significance in light of Congress’s rejection of the FEC’s initial proposal. Thus we conclude that the FECA expresses no clear congressional-intent on the precise issue in this case— the corporate sponsorship of qualified debate staging organizations to defray the costs of conducting candidate debates.

Since we have determined that the FECA does not answer the precise question at issue, the question thus becomes whether the FEC’s efforts in the debate regulations to permit such corporate sponsorship, and to define the proper scope of “contribution” and “expenditure” as used by the Act, reflect a permissible construction of the statute. Under Chevron, absent an unambiguously expressed congressional intent on the precise issue, the courts must defer to the Commission’s construction if it is reasonable and not inconsistent with the statute. Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 5 (1st Cir.1998).

The debate regulations at issue pass that test. First, the debate regulations reflect a reasonable understanding of the purposes of the FECA, and in fact parallel the purposes of its express exceptions. In 1979, the Commission addressed the funding and sponsorship of candidate debates in a rulemaking.

The Commission decided that since the legislative policy behind the express exceptions was to permit corporations and unions to fund activity directed to the general public to encourage voter participation so long as the activity is conducted primarily by a 'nonpartisan organization, “permitting corporations and labor organizations to donate funds to nonprofit nonpartisan organizations for [debate] staging is consistent with congressional intent and policy.” FEC, Explanation and Justification, Funding and Sponsorship of Federal Candidate Debates, 44 Fed.Reg. 74,734, at 76,736 (1979); see also 44 Fed.Reg. 39,348, at 39,349.

The Commission concluded that “[t]he educational purposes” of a debate staged by such nonpartisan organizations “is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns.” Id. at 39,348. “Unlike single candidate appearances, nonpartisan debates are designed to educate and inform voters rather than to influence the nomination or election of a particular candidate. Hence, funds received and expended [by certain nonprofit organizations] to defray costs incurred in staging nonpartisan public debates are not considered contributions or expenditures under the Act.” Id.

Moreover, the FEC’s debate regulations are in accord with congressional expectations 'as expressed in the legislative history discussed above. It is certainly within the purview of agency discretion to accord respect to congressional intent as reflected in the legislative record. - Finally, the debate regulations are not inconsistent with the

definitions of “contribution” and “expenditure” provided by

Section 441b. As the prohibition contained in

Section 441b did not specifically address corporate donations to nonpartisan tax exempt organizations but rather addressed payments “to any candidate, campaign committee, or political party or organization,” the Commission reasonably determined that the prohibition need not apply to corporate disbursements to nonpartisan tax exempt organizations for the limited purpose of staging candidate debates.

The Commission’s determinations that the prohibition was especially concerned with “active electioneering” to promote a particular candidate and that sponsoring a nonpartisan debate was not “active electioneering” were similarly permissible.

And the fact that the regulations allow corporate contributions to candidate debates in order to encourage voter participation in a fashion not expressly permitted by the statute does not itself invalidate the regulation. “Agencies often are allowed through rulemak-ing to regulate beyond the express substantial directives of the statute, so long as the statute is not contradicted.” Clifton, 114 F.3d at 1312. Hence, the Commission’s views are not unreasonable, nor are they inconsistent with the statute. We note that Nader’s

interpretation of the FECA is also not unreasonable. He argues that the debates in fact promote the campaigns of those invited to participate.

As amicus CPD says, the goal of its debates “is to afford the members of the public an opportunity to sharpen their views, in a focused debate format, of those candidates from among whom the next President and Vice President will be selected.” Insofar as such debates have the primary effect- of showcasing the candidacies of those selected to participate, Nader reasonably concludes that corporate funding of the debates might be viewed as contributing in effect to the candidacies of the participants. But Congress gave the choice as to the preferred reasonable

interpretation to the FEC, not to Nader. The task for the reviewing court under Chevron is only to undertake the narrow inquiry into whether the agency’s construction is sufficiently reasonable to be accepted by the reviewing court. The debate regulations at issue do not contravene the unambiguously expressed intent of Congress, as reflected in the FECA statutory scheme, but rather fall within the scope of the policymaking authority Congress delegated to the FEC under the Act.

Moreover, the regulations reflect a permissible construction of the statute, indeed one that easily falls within the reasonable ambit of the statutory terms. We reject Nader’s challenge and affirm the district court judgment dismissing his suit. So ordered. No costs are awarded. . The district court found that the individual voter plaintiffs lacked standing. . The FEC makes no claim that the plaintiffs have failed to meet prudential standing requirements. .

A footnote in the concurring opinion suggests that we might err in assessing Nader’s standing from this chronological point of reference; it points to a Tenth Circuit case, Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995), holding that a plaintiff must not only have standing at the time he brings suit, but must retain it throughout the litigation. The case has rightly been criticized for ignoring language in Lujan v.

Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), clearly indicating that standing is to be "assessed under the facts existing when the complaint is filed.” Klamath Siskiyou Wildlands Ctr. v. Babbitt, No. CV-99-1044-ST, 2000 WL 236366, at *3, 2000 U.S. Dist. LEXIS 2269, at *9 (D.Or. Feb. 15, 2000) (quoting Lujan, 504 U.S. at 571, n. 4, 112 S.Ct. 2130).

The problem with the approach taken in Powder River is that it conflates questions of standing with questions of mootness; while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) ("[Standing is based on the facts as they existed at the time the lawsuit was filed.”); White v. Lee, 227 F.3d 1214, 1236 (9th Cir.2000) (same); Advanced Mgmt. Tech., Inc. v.

FAA, 211 F.3d 633, 636 (D.C.Cir.2000) (same); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (Scalia, L, concurring) ("Subject matter jurisdiction depends on the state of things at the time of the action brought; if it existed when the suit was brought, subsequent events cannot oust the court of jurisdiction.”) (internal quotation marks and citations omitted).

"The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as 'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 708-09, 145 L.Ed.2d 610 (2000) (citations omitted). But questions of standing and questions of mootness are distinct, and it is important to treat them separately. See id. at 709-10.

We address whether Nader's claim is moot below. . The concurrence argues that Nader’s injury is "overly speculative,” and that our granting him standing effectively "grants standing to any political entrant to challenge any election regulation to which they might someday be subject.” Infra, at 401-02 (emphasis added). Our holding is nowhere near so broad. Nader was not merely “any political entrant” in the presidential race. At the time he brought suit, he could have plausibly hoped to qualify for an invitation to the debates.

Nor did he merely worry that "someday” corporate sponsorship of the debates would interfere with his campaign. At the time of filing, invitations to the debates were scheduled to be determined at a definite dale, soon enough in the future to affect his present campaign plans. . Similarly flawed is the FEC's argument that Nader cannot claim standing on the basis that he has been put at a competitive disadvantage in the presidential race.

The FEC cites a line of Second Circuit decisions in which competitive disadvantage in a political race has been recognized as a possible basis for standing, but only where the plaintiff has shown "that he personally competes in the same arena with the party to whom the government has bestowed the assertedly illegal benefit.” In re United States Catholic Conference, 885 F.2d 1020, 1029 (2d Cir.1989), quoted in Fulani v. Bentsen, 35 F.3d 49, 54 (2d Cir.1994); see also Gottlieb v. FEC, 143 F.3d 618, 620-21 (D.C.Cir.1998); Fulani v. Brady, 935 F.2d 1324, 1327 (D.C.Cir.1991).

The FEC argues that Nader cannot claim such standing, because he does not compete in the same arena with the CPD, which is the party to whom the FEC has bestowed the assertedly illegal benefit of access to corporate funding. Again, however, such argument unjustifiably ignores the consequences of the FEC’s action: the corporate funds that the FEC has allowed the CPD to solicit in the end pay for free television exposure for the debate participants; and obviously Nader competes in the same arena with these other candidates. .

The CPD announced on January 6, 2000 that Anheuser-Busch would serve as one of the national financial sponsors for its 2000 presidential debates, as well as the sole financial sponsor of the October 17 debate in St. Louis, Missouri. Anheuser-Busch reportedly paid $550,000 to underwrite the October 17 debate. . Rather, such parties would likely bring challenge only if they were excluded for some reason from the benefits of being able to receive or donate corporate funds in support of the debates. .

We recognize that the mere implication “that if [the plaintiff has] no standing to sue, no one would have standing, is not a reason to find standing.’’ Valley Forge, 454 U.S. at 489, 102 S.Ct. 752 (citations omitted). But that is not what is wrong with the FEC’s direct regulation theory.

What is wrong with the FEC’s theory is that it permits only those directly subject to the regulations to bring suit, when the very persons likely to be harmed by the regulations are not directly subject to them. .We note also that Nader's choice is not wholly ideological; he objects to participating in corporate-sponsored debates not only because they offend his principles, but because, on his view, they are illegal. .

Nader’s interest in this case is identical to that of his party (represented by plaintiffs Green Party USA and the Association of State Green Parties) and campaign organization (the Nader 2000 Primary Committee); together, they represent the Nader candidacy that has been injured by the FEC regulations as described in the preceding discussion. Hence, by virtue of our finding that Nader has standing, we also find that these plaintiffs have standing. . No party has attributed any significance to the failure to exclude this latter category from the definition of ''contribution.' .

The Senate rejected an initial, more restrictive version of the debate regulations through this mechanism by unanimous resolution. See S. Res. 236, 96th Cong. (1979). . Congress clearly did intend to permit corporate expenditures, Nader says, at least for internal nonpartisan voter registration and get-out-the-vote campaigns. But it is not enough, he argues, for the FEC simply to say that debates will "stimulate voter interest and that will lead more people to register to vote or to vote.” 44 Fed.Reg. 76,736 (1979).

Nationally televised debates serve predominantly as "a critical campaign showpiece for participating candidates.” Nader concedes that had Congress said that an exemption applies to corporate expenditures for activities "such as” voter registration, then the FEC would be in a stronger position. See U.S. v. Haggar Apparel Co., 526 U.S. 380, 387, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). But the FECA contains no such language. .

In a footnote in his appellate brief, Nader argues that even if Congress did leave the FEC discretion to create exceptions to the general prohibition on corporate funding, such a grant of discretion would violate the nondelegation doctrine as recently applied by the D.C. Circuit. See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027 (D.C.Cir. 1999), cert, granted, Browner v. American Trucking Ass’ns, Inc.,-U.S.-, 120 S.Ct. 2003, 146 L.Ed.2d 954 (2000). Such

summary treatment does not permit a reasoned analysis and we disregard the argument. . 5 U.S.C. § 801(

g) states: "If Congress does not enact a joint resolution of disapproval under

section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval." .Nader suggests in his brief that the FEC has conceded in a prior proceeding that donations to debate staging organizations would constitute prohibited "contributions” absent the "safe harbor" created by the debate regulations. However, the FEC opinion he cites simply holds that donations to debate staging organizations that do not meet the requirements of

Section 110.13 constitute prohibited contributions to the participating candidates, not that absent the regulations, donations to any debate staging organization would necessarily constitute unlawful contributions. See FEC Statement of Reasons, In the Matter of Commission on Presidential Debates (April 6, 1998) at 4. In other words, the FEC regulations at issue can reasonably be viewed as defining the scope of the

definitions of "contribution” and "expenditure” rather than creating exceptions to their clear terms. . Indeed, when the Senate rejected the initial proposal, the floor statements of the resolution’s cosponsors indicated that the Senate was concerned that the initial proposed regulations were too intrusive and burdensome on debate sponsors, not too permissive in allowing corporate sponsorship of debates. See 125 Cong. Rec. 24,957-58 (1979) (statements of Sen. Pell and Sen. Hatfield). . We acknowledge with appreciation the amicus brief submitted by the CPD. .

Because I find that Nader lacks the constitutional requirements for standing, I have not addressed the issue of prudential standing. However, a plaintiff generally has prudential standing under § 10(

a) of the APA when his interest is "arguably” within the “zone of interests to be protected or regulated by the statute in question.” National Credit Union Admin, v. First Nat'l Bank & Trust Co., 522 U.S. 479, 489, 118 S.Ct 927, 140 L.Ed.2d 1 (1998) (quoting Assoc. of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Given that this

section of the FECA is designed to prevent corruption in campaign finance, see, e.g., FEC v. National Right to Work Comm., 459 U.S. 197, 209, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982), and that Nader challenges it not based on corruption per se, but because it provides additional advantages to his competitors, his injury at first blush lies outside the statutory zone of protection. The fact that Nader personally is concerned with corruption in politics is particularly irrelevant to the standing question. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[A] citizen's interest in proper, application of the Constitution and laws ... does not state an

Article III case or controversy.”); United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.1992) ("A mere interest in an event — no matter how passionate or sincere the interest and no matter how charged with public import the event — will not substitute for an actual injury.”). Furthermore, to the extent the district court viewed the prudential analysis as considerations "weighing” in Nader’s favor, the court made an error of law. If the plaintiff fails to meet the constitutional standing guidelines, no assessment of his personal concern can create an

Article III case or controversy. v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (three elements are the "irreducible constitutional minimum”).