Opinion for the Court filed by WILKEY, Circuit Judge.
WILKEY, Circuit Judge:
Appellant, a Member of the United States House of Representatives,
I. THE CHALLENGED STATUTORY FRAMEWORK
The funding and reporting provisions of the CIA Act, which are the object of appellant's challenge in this case, represent an exception to the general method for appropriating and reporting the expenditure of federal funds. Article I, section 9, clause 7 of the U.S. Constitution provides that
This clause is not self-defining and Congress has plenary power to give meaning to the provision.
With respect to the reporting of expenditures, the key statutory provision of general application is 31 U.S.C. § 1029 which imposes a duty on the Secretary of the Treasury to provide Congress on an annual basis with ". . . an accurate, combined statement of the receipts and expenditures . . . of all public moneys. . . ."
By virtue of section 403f(a) of the CIA Act, the Agency is authorized to
Thus, the funds used to operate the CIA do not derive from a specific appropriation voted by the Congress. Rather, these funds are concealed within the appropriations requests for other agencies in the President's annual budget proposal. After Congress approves the appropriations for these other agencies in which CIA funds are concealed, the funds for the Agency are secretly transferred by the Office of Management and Budget to the CIA.
We are informed by appellant in his complaint as to the procedure used by the House of Representatives to approve funds for the CIA.
With respect to the reporting of its expenditures the CIA is exempted from the general requirements:
The precise nature and content of the "certificate of the Director" is not clear from the information presented by the parties in this case.
The appellant in this case does not question the constitutional sufficiency of the funding and reporting provisions of the CIA Act or the laws of general application outlined above.
The appellant's second cause of action, which he has stressed on this appeal, builds on the factual allegations related to the first. Appellant contends that, in carrying out the allegedly illegal foreign and domestic activities, the CIA has improperly utilized the special funding and reporting provisions of the CIA Act, since these provisions are to be used only in connection with authorized activities.
There are two additional points which deserve mention in order to present an accurate description of the nature of appellant's challenge in this case. First, the allegations of improper foreign and domestic activities on the part of the CIA are derived from information which has been put on the public record by the defendants in this case.
The second point concerns the reaction of Congress to this public information regarding CIA activities. Appellant states that the public acknowledgment of the foreign and domestic activities in question "has caused considerable controversy in both Houses of Congress"
Having put forth the substantive merits of appellant's claims, it remains to relate this aspect of the case to the issue of standing. As the Supreme Court stated in Warth v. Seldin,
This standard of review dictates that we assume (1) that the CIA has engaged in certain foreign and domestic activities in excess of its statutory authority, and (2) that the funding and reporting provisions of the CIA Act have been utilized in an illegal manner. These assumptions as to illegality do not in and of themselves confer standing on anyone to challenge the illegality.
II. THE INTERESTS ASSERTED BY APPELLANT
Although there has been no systematic or precise
A. The First Cause of Action — Allegedly Illegal Foreign and Domestic Activities
Appellant asserts three distinct interests to support his standing to seek a declaratory judgment that certain foreign and domestic activities of the CIA are illegal.
With respect to the first, appellant claims an interest in the possible impeachment of the defendants which could result from a declaration that the activities in question are illegal. This power of Congress to impeach derives from specific provisions in the Constitution.
The crucial words in this allegation are "bear upon"; appellant does not assert that the alleged illegality on the part of the CIA has injured his interest in the impeachment process but rather that such illegality relates to this interest. In other words, although the alleged illegality has in no way diminished or otherwise invaded the Congressional power to impeach, a judicial declaration of illegality would be helpful and relevant (i. e., "bear upon") to appellant in deciding whether to pursue the impeachment of the defendants in this case. There is no allegation that a declaration of illegality would force the Congress or appellant to commence impeachment proceedings, nor does it appear that such a declaration as to past Agency activities would provide appellant with more basic information than he already possesses. Appellant believes that he has established a sufficient link between the alleged illegality and his interest in the impeachment process by asserting that the former merely "bears upon" the latter.
Most critically, he does not allege that he as a litigant would profit or lose, depending upon our determination of legality or illegality.
In using the phrase "bears upon" to describe the nature of the harm to his protected interest, appellant duplicates the language of this court in Mitchell v. Laird.
The second and third interests put forth by appellant to support his standing to seek a declaratory judgment are also derived from the Mitchell case. In Mitchell the court opined that, in addition to the impeachment rationale, Congressional standing could be supported by the fact that a declaratory judgment
As with the impeachment rationale, the source of these asserted interests is Article I of the Constitution;
B. The Second Cause of Action — Use of the CIA Act Concealment Provisions
Appellant contends that the use of the funding and reporting provisions of the CIA Act to carry out allegedly illegal activities injuries "his rights and interests as a Congressperson to participate in the legislative process."
1. Enactment Interests. Appellant focuses on two facets of the legislative process in which he believes he has been injured in his ability to enact legislation.
When appellant claims that his right to participate in the appropriations process has been injured, he is in truth arguing that his participation as he interprets the relevant statutes has been impaired. Thus, the source of appellant's asserted damage to his interest in the appropriations process does not derive directly from a statute, but rather from his interpretation of what should be the correct legislative operation of the entire statutory scheme relating to the CIA.
Building on his interpretation of the appropriations and CIA statutes, appellant claims additional injury because his "need for [the CIA] information arises from his status as a legislator and relates to his effectiveness as such."
The second enactment interest put forth by appellant relates to 31 U.S.C. § 1029.
Appellant does not allege that he is denied the reports submitted pursuant to 31 U.S.C. § 1029 but complains that the reports do not contain sufficient information concerning any illegal activities carried out by the CIA. This information is needed, according to appellant, so that he can discharge his Congressional duties, broadly defined in this instance to include consultation with his constituents. In other words, this information "bears upon" the asserted Congressional rights and duties; thus, appellant is asking the court to apply and extend
2. Post-Enactment Interests. Appellant takes an expansive view of the nature of the legislative process in claiming that his interests in this process extend to the manner in which previously enacted statutes are administered. Appellant first claims an interest "in ensuring that no funds appropriated by Congress and for which he has voted are transferred to and used by the Agency"
The second post-enactment interest asserted by appellant concerns the effect of the CIA's allegedly illegal activities on votes already cast by appellant. Appellant contends that these votes "are impaired to the extent that . . . appropriations are used by the Agency for unauthorized activities."
III. ANALYSIS OF APPELLANT'S CONGRESSIONAL INTERESTS
A. Principles Basic to Standing of all Litigants
1. When analyzing the standing claims of a Congressman it is important to keep in mind the nature and source of the analytical standards to be employed. The most basic point to consider is that there are no special standards for determining Congressional standing questions. Although the interests and injuries which legislators assert are surely different from those put forth by other litigants, the technique for analyzing the interests is the same. The source for these standards and techniques is to be found in the opinions of the Supreme Court. Although the Supreme Court has not directly faced the question of standing to allow individual members of the legislative branch to seek judicial relief from action taken by members of the executive branch,
Thus, in analyzing appellant's standing claims in this case, we examine both the opinions of this court and the Supreme Court, recognizing that the Supreme Court's general framework controls the final determination. After stating these basic principles concerning the standing doctrine, we shall examine the two causes of action separately to determine if appellant comes within the decisions of this court or the reasoning of relevant Supreme Court decisions.
2. There is no single test or formula to be derived from the case law to determine if a particular complaining party has standing to sue. Rather, the case law provides a series of inquiries designed primarily
3. Before turning to the analysis of the two causes of action presented in this case, it is necessary to explore briefly the basic requirement which underlies the standing doctrine. Such an exploration is necessary because all of the specific inquiries required to be made under the framework provided in the case law must ultimately be tested against this requirement. In Baker v. Carr, the Supreme Court stated that ". . . the gist of the question of standing" is whether the party has "alleged such a personal stake in the outcome of the controversy as to assure [the] concrete adverseness which sharpens the presentation of issues . . . ."
All three interests asserted by appellant to support standing to seek a declaratory judgment that the CIA activities in question are illegal rely on the language and reasoning in two paragraphs of Mitchell v. Laird.
First of all, the language of Mitchell on which appellant totally relies for his first cause of action was written on an issue which the Supreme Court has later explained need not have been decided,
In Mitchell this Circuit held that the plaintiffs could not prevail because ". . we are faced with what has traditionally been called a `political question' which is beyond the judicial power conferred by Article III of the United States Constitution."
Indicating the inherent weakness of the language on standing in Mitchell as the sole support for appellant's position here, we note that this court's remarks were made on an issue which was neither briefed nor argued by the parties, and, further, that both Chief Judge Bazelon and Judge Tamm, who sat in Mitchell and subsequently sat in Kennedy v. Sampson,
Turning now to general Supreme Court doctrine, the most consistent theme expressed by the Supreme Court on the question of standing is that a party must allege "a distinct and palpable injury to himself."
An additional objection to the allegations related to the first cause of action relates to the fact that these contentions are future-oriented. The fact that harm or injury may occur in the future is not necessarily fatal to a claim of standing.
The "bears upon" language which appellant uses in his allegations related to the first cause of action has a profound effect on the nature of appellant's "personal stake in the outcome of the controversy . . ."
Appellant thus is a bystander as to the result of the controversy. If there is one concept to be gained from the Supreme Court decisions on standing, it is that a litigant, to have standing, must have a stake in the controversy at issue, i. e., he himself must perceptibly win or lose depending on the outcome.
Therefore, we conclude that the "bears upon" language, and the notion it imports,
Appellant repeatedly makes the point that the challenged activities of the CIA are specific in nature and precisely enumerated in the complaint.
Appellant undoubtedly has interests in his status as a Congressman in the impeachment, appropriations, and general lawmaking powers of the Congress.
C. The Second Cause of Action—Use of the CIA Act Concealment Provisions
The standing claims related to the second cause of action, which focuses on the impact of the alleged misuse of the funding and reporting provisions of the CIA Act on appellant's participation in the legislative process, rest on the assertion of five injuries: (1) the impairment of all prospective votes on appropriations measures; (2) the impairment of appellant's overall effectiveness as a legislator; (3) the impairment of appellant's past votes on appropriations legislation; (4) injury to the special interest in the administration of certain laws; and (5) the harm resulting from the denial of information under 31 U.S.C. § 1029. The first three of these injuries rely on Kennedy v. Sampson
In Kennedy a U.S. Senator sought a declaratory judgment that a bill for which he had voted had become validly enacted despite a pocket veto by the President. The Senator claimed that the pocket veto had rendered his vote ineffective and deprived him of his constitutional right to vote on an override of the Presidential veto. The court upheld the Senator's standing as an individual legislator to challenge this executive action. In so doing the court stated that
Thus, the Kennedy case operated in the context of a specific piece of legislation and the individual Senator's relationship to it.
In Kennedy the injury to the previously cast vote was the effective disenfranchisement of the legislator with respect to the bill in question. As a result of the asserted illegality, the Senator's vote was rendered a direct and immediate nullity, as if he had not cast the vote at all. Appellant claims no such nullification of his past votes in this case; there is no claim that the past votes were denied full force and effect as the result of the CIA activities in question. The court's inquiry in Kennedy was limited to a discrete aspect of the process by which a bill becomes law (the actual vote on the legislation) and those post-enactment events denying the bill's status as law; the inquiry did not extend to the interpretation of a concededly valid law as appellant would have us do in this case. The Kennedy paradigm thus relies on nullification of a specific vote as the requisite injury in fact; appellant in this case puts forth a quite different proposition and therefore cannot employ the Kennedy precedent in these circumstances. This conclusion does not in itself foreclose the existence of injury in fact; rather, any injury possibly suffered by appellant is not of the variety recognized in Kennedy.
Appellant believes that the concern expressed in Kennedy relating to the withdrawal of the opportunity to vote on the override of the President's veto supports his asserted injury to all future votes on appropriations measures. It is true that in both instances the votes are to take place in the future, but the similarity does not extend beyond this analytically superficial proposition. With respect to the enactment of a specific piece of legislation, the legislative process consists of a continuum of events which culminates in the legislation either becoming a validly enacted law or being vetoed by the Executive. In the case of a Presidential veto, an additional step is provided in the Constitution in the form of a Congressional right to override.
Appellant's arguments relating to the injury to his effectiveness as a legislator derive from repeated references to this notion in the Kennedy case.
With respect to the effectiveness rationale the court in Kennedy also stated that "appellee's stake in this litigation is a quantum of his official influence upon the legislative process."
In summary, the Kennedy case presented its effectiveness rationale in terms of objective injury to the legislator's vote on a particular bill; the appellant in this case, however, asserts subjective injury to his overall effectiveness which flows from his lack of information concerning the CIA. Having determined that the Kennedy case cannot be read to include the three interests discussed above, it is now appropriate to test these interests against the broader framework of the standing doctrine.
As to appellant's claims that his future votes on appropriations measures are impaired, we hold that there has been no judicially cognizable injury stated. The hallmark of the funding and reporting provisions of the CIA Act is uncertainty; appellant has not refined this concept in his submissions to this court so as to distinguish between acceptable and unacceptable uncertainty. There has been no specific link drawn between the assumed illegal activities of the Agency and future votes. There has been no allegation that appellant's vote will be nullified by the activities or that appellant will be personally disenfranchised in any respect. The potential misuse of funds by a recipient is always a possibility when Congress appropriates money; in this case, appellant has the advantage of access to public acknowledgements which he believes to violate the CIA Act. But he has not drawn the necessary connection between these activities and his interests in the appropriations process to assure us of the "concrete adverseness"
The same subjectivity that undermines appellant's claims of injury to specific past votes is also present in his argument that his overall effectiveness has been impaired. To constitute injury in fact, the alleged harm must be "specific . . . and objective";
There remains but one interest of the appellant to analyze. This interest concerns appellant's assertion of a "special relationship" to the legislative process which confers on him an interest in the proper administration of the laws. Appellant is a Congressman; his specific rights, interests and prerogatives lie in the power to make laws. As we have noted, this power has not been invaded, diminished, diluted, or injured by the challenged actions in this case. Once a bill becomes law, any injury which is inflicted by its operation would seem to fall equally on all citizens. Thus, appellant's claim in this regard fails for two reasons. First, although appellant has an interest in the proper administration of the laws, this interest does not arise directly from his status as a Congressman; consequently, there is no "logical nexus between the status asserted and the claim sought to be adjudicated."
In addition to the absence of demonstrable injury, appellant has directed his complaint of alleged injury at the wrong source. The only restraints on appellant Member's legislative activities concerning the CIA are those imposed by the House of Representatives through its own rules; yet appellant has sued, not the House, but only officers of the Executive Branch.
Art. I, § 5, cl. 2 of the Constitution provides that "[e]ach House may determine the rules of its proceedings." This provision gives a specific constitutional base—a constitutional status, if you prefer—to the rules that Congress provides for its own proceedings. In deference to the fundamental constitutional principle of separation of powers, the judiciary must take special care to avoid intruding into a constitutionally delineated prerogative of the Legislative Branch.
IV. CONCLUSION
As a conclusion to our analysis of appellant's Congressional standing claims in this case, it is worthwhile to consider the implications of a grant of standing on the grounds which appellant has set forth. That is, if appellant were allowed to rely on the Mitchell standard, or solely on institutional injury, or on the type of subjective, speculative injury asserted, what would be the consequences? To accept these grounds for standing would in effect allow any Congressional suit to challenge Executive action, and an individual legislator would have a roving commission to obtain judicial relief under most circumstances. This would lead inevitably to the intrusion of the courts into the proper affairs of the co-equal branches of government. Indeed, at oral argument appellant asserted that he wished this court to declare what is "the proper legislative process" with respect to the laws regulating the CIA. This bold and totally unacceptable assertion serves to highlight the separation of powers problems inherent in suits brought by individual members of the legislative branch.
Although separation of powers issues may be more closely tied to the political question doctrine than to standing,
Affirmed.
FootNotes
This is the appropriate place to clear up any confusion concerning the status of this court's opinion in Mitchell v. Laird. The Mitchell opinion had been published in an advance sheet at 476 F.2d 533. The opinion does not appear in the bound volume of the same number; the table of cases in that volume indicates that the Mitchell case was "Withdrawn by Order of Court." The opinion was withdrawn from Volume 476 in order to include supplementary material relating to the request for a rehearing en banc. The original Mitchell opinion, along with the supplemental material, appears at 159 U.S.App.D.C. 344, 488 F.2d 611 (1973). The withdrawal of the opinion therefore does not affect either the language or the precedential effect of the Mitchell opinion.
With respect to the "regular Statement and Account" phrase of the clause, the Supreme Court has recently recognized that "Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest," United States v. Richardson, 418 U.S. 166, 178 n. 11, 94 S.Ct. 2940, 2947, 41 L.Ed.2d 678 (1974). Appellant accepts the notion that Congressional power is plenary in this area and that his rights to information concerning the operation of these two processes are to be defined solely by Congress. See, e. g. Complaint, ¶ 30, J.A. at 15a; Appellant's Brief at 28.
Much of the confusion regarding this concept of institutional injury derives from appellee's belief that indirect injury is not sufficient for purposes of standing. Appellee's Brief at 14, 16. Although there is language to this effect in older Supreme Court cases (see, e. g., Ex Parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Chicago v. Atchison, T. & S. F. Ry. Co., 357 U.S. 77, 83, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958)), a direct injury is not required under current Supreme Court doctrine. As the Court stated in Warth v. Seldin,
This same idea was expressed in Kennedy v. Sampson when the court stated that
Therefore, in order for appellant successfully to employ this technique of showing indirect injury, he must show 1) there has been injury-in-fact done to the Congress, and 2) that he, as an individual legislator, has been injured-in-fact because of the harm done to the institution. Although this technique is sound in theory, it has not been executed soundly in this case.
Inconsistent allegations render appellant's claims with respect to institutional injury insubstantial. Appellant first contends that the performance of illegal activities by the CIA "constitute[s] a blatant usurpation and disregard of and challenge to the role of Congress in the constitutional scheme to prescribe the activities of agencies created by Act of Congress." Complaint, ¶ 18, J.A. at 11a; see also Appellant's Brief at 6, 11, 17, 25. After making this allegation that the "power" to prescribe" has been injured, appellant himself goes on to show that this is not the case. Since the CIA activities at issue in this case became public knowledge, the House has considered numerous bills and resolutions relating to the agency (Complaint, ¶ 16, J.A. at 9a-10a). Indeed, at least 23 of these measures were introduced by appellant (see note 29, supra). One specific piece of legislation has been enacted (the Foreign Assistance Act of 1974, 22 U.S.C. § 2422) which prohibits the CIA from engaging in the type of foreign activities complained of by appellant in this case. See Appellant's Brief at 9 n.4. The thrust of these statements is that the legislative process is operating in an unimpeded manner; the power to prescribe remains, by appellant's own admission, completely intact. Thus, since appellant has in effect alleged no cognizable injury to the institution (Congress), he cannot logically trace this nonexistent harm through to himself as an individual member. The institutional argument fails in this case.
We need not express a view on the necessary relationship between institutional harm and individual harm when a legislator seeks a recognition of standing. It is clear that each individual harm to a legislator need not always be accompanied by an institutional harm (see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)) and that institutional harm can result in individual harm (see Kennedy v. Sampson, infra Part III). Beyond this we need not and do not go. We do emphasize, however, that when a legislator has not been authorized to sue on behalf of the institution to which he belongs, the crucial inquiry relates to his personal injury and stake in the controversy, regardless of its source.
In summary, although a plaintiff cannot rely solely on institutional injury to establish standing, he can allege that that harm to the institution has resulted in harm to himself. In this case there are no allegations which satisfy the first stage of analysis relating to institutional injury in fact.
Appellant also claims an interest under 5 U.S.C. §§ 552, 7102 in obtaining information concerning the Agency. Complaint, ¶ 49, J.A. at 23a. The Agency is specifically exempted from these requirements by 50 U.S.C. §§ 403g, 403(c). To the extent that appellant merely seeks additional information, this claim also relates more closely to his status as a citizen and taxpayer, Complaint, ¶ 50(c), J.A. at 24a, and is, in addition, barred by the causation requirement in the law of standing since Congress completely controls the flow of information concerning the CIA and is not a defendant in this case. See note 68, infra. Appellant also states that the information normally provided under 5 U.S.C. ¶ 552 would be "relevant and helpful" to him in his general lawmaking duties, Complaint, ¶ 49, J.A. at 23a. This aspect of the claim thus rests on a notion similar to that of the "bears upon" language of Mitchell v. Laird (note 37, supra) and is covered by our analysis in Part III.B., infra.
Therefore, with respect to both of these interests, appellant states claims which are more closely tied to citizen and taxpayer standing and thus not relevant to this appeal. To the limited extent to which these claims relate to appellant's status as a Congressman, they both rely on Mitchell v. Laird and therefore must fail under the analysis in Part III.B., infra.
A similar problem relating to causation also undermines this argument relating to the withdrawal of the opportunity to vote on unauthorized activities. The scheduling of votes is within the power of the House of Representatives; it is this body, and not the defendants in this case, which has seen fit not to subject certain areas of CIA activity and operations to separate legislative consideration. Thus, any complete withdrawal of the opportunity to vote has been caused by the House, which is not a party to this case.
In summary, the argument relating to the withdrawal of the opportunity to vote is an artificial attempt to come within the Kennedy case which has as its purpose the gathering of more information concerning both the legal and allegedly illegal activities of the CIA. The fundamental defect in the argument is one of causation in that the defendants in this case do not control either the flow of information to Congress or the scheduling of votes in the House of Representatives. This argument, as well as others presented in the case, also raise problems relating to the separation of powers which will be discussed in Part IV, infra.
The Supreme Court granted standing to the 20 senators who had originally voted against the amendment, stating that these plaintiffs had a "plain, direct, and adequate interest in maintaining the effectiveness of their votes," 307 U.S. at 438, 59 S.Ct. at 975. This language was subsequently relied on by this Circuit in Kennedy v. Sampson (see note, 113, infra). The major distinguishing factor between Coleman and the present case lies in the fact that the plaintiffs in Coleman were state legislators. A separation of powers issue arises as soon as the Coleman holding is extended to United States legislators. If a federal court decides a case brought by a United States legislator, it risks interfering with the proper affairs of a coequal branch. Although this concern for the separation of powers will not always operate to deny standing to a legislator (see Powell v. McCormack, 395 U.S. 486, 518-59, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), it is a delicate issue of which we properly take notice. See Part IV, infra.
If injury in fact is found to exist, the inquiry then focuses on the interests being asserted by the complaining party to determine if the interests are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question," Ass'n of Data Processing Serv. Organization, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). See also Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). This is not a constitutional requirement, Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 39 n. 19, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), and need not be faced in the absence of a finding of injury. Thus, if no injury is found, a court need not render a decision on the validity or scope of the interests at stake in the litigation.
If the first two inquiries are answered in the affirmative, the analysis turns to the question of causation. In order to be granted standing, a complaining party must allege "some threatened or actual injury resulting from the putatively illegal action . . .," Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (emphasis added). The injury must be such "that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court," Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). If this requirement of causation cannot be met, the standing claim must fail for the lack of a proper defendant.
If the complaining party has met the requirements relating to injury, interest, and causation, there remains a fourth inquiry to be answered. A plaintiff must show "an injury that is likely to be redressed by a favorable decision," Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). This requirement "insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied," Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974). All four of the inquiries must be answered in the affirmative in order to make out a valid claim of standing; if a negative answer is given to any of the inquiries, there is no need to proceed to the next stage of analysis. It is therefore important to keep in mind that a valid claim of standing rests on more than just assertion of cognizable injury.
At oral argument appellant advanced the notion that he had somehow suffered "more" injury than the injury recognized in "the environmental cases" decided by the Supreme Court and, therefore, should be granted standing. In making this contention appellant apparently had reference to cases such as United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) in which damage to the environment was the source of the personal injury recognized. In making this argument, which has some superficial appeal, appellant demonstrates a basic misunderstanding of the manner in which the standing doctrine operates. The magnitude of the harm on which a party's claim is based is relevant only to determining injury-in-fact; even in this regard, the harm need not be substantial but merely identifiable.
Once the constitutional threshold of injury-in-fact is established, the magnitude of the harm becomes irrelevant as such; the primary concern then becomes the relationship between the identifiable harm and the complaining party (i. e., the inquiries relating to interest, causation, and redressability). Thus, the fact that one party may have suffered "more" injury than another does not necessarily entitle the former to have standing in the federal courts.
Appellant in this case has failed to realize that he must trace the relationship between the harm he asserts and his individual status. His assertion that he has suffered "more" injury is insufficient. Were the rules of standing otherwise, a court either would have to accept the subjective feelings of injury expressed by litigants or would have to make these judgments itself on a subjective basis. We fail to see how meaningful standards could be devised to make these determinations as to which injury is "more" or "worse." In any case, an acceptance of appellant's line of reasoning would surely steer the federal courts into areas inconsistent with the limitations of Article III. See Part IV, infra.
Id. The nexus test was developed as a technique for analyzing this problem; the nexus inquiry did not in any way alter the basic notions underlying the standing doctrine.
The nexus test has generated considerable analytical confusion since Flast. The primary difficulty lies in determining the precise focus of the test; it can easily be read as dealing solely with the question of injury, or solely with the nature of the interest asserted, or a combination of the two. The necessity for a precise focus derives from the fact that the injury requirement is a constitutional requirement, unlike the other inquiries. As Mr. Justice Powell stated, "I find it impossible . . to determine whether the two-part `nexus' test created in Flast amounts to a constitutional or a prudential limitation . . .," United States v. Richardson, 418 U.S. 166, 181, 94 S.Ct. 2940, 2948, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). Mr. Justice Brennan has also criticized the nexus test, believing that "[t]he extension of [the nexus] test to . . . very different challenges . . . only produces . . . confusion," Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 238, 94 S.Ct. 2925, 2963, 41 L.Ed.2d 706 (1974) (Brennan, J., dissenting).
The nexus statement does, in limited circumstances such as this note, serve as a useful description of the status of a litigant. It is not, however, a separate, all-encompassing test. An avowed purpose of the Flast opinion was to clarify many aspects of the previously confused law of standing, 392 U.S. 92-93, 88 S.Ct. 1942. Although this goal may or may not have been accomplished, the Flast opinion did not succeed in laying down a comprehensive, analytically consistent test for the future. The many standing cases since Flast have refined and further delineated the various elements of the standing doctrine, and it is from these cases that we draw the four inquiries outlined in note 68, supra. These inquiries serve to focus a court's inquiry more precisely, more systematically, and more comprehensively than the Flast nexus test and will therefore be employed in our analysis.
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