text:
    The NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML) et al., Petitioners, v. John E. INGERSOLL et al., Respondents.
    No. 72-1854.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 11, 1973.
    Decided Jan. 15, 1974.

      Kenneth Baumgartner and John J. Cohrssen, Washington, D. C., for petitioners.
    Allan P. MacKinnon, Atty., Dept, of Justice, with whom Henry E. Peterson, Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., John A. Terry, Asst. U. S. Atty., and Allyn Myles Carnam, Atty., Office of Chief Counsel, Drug Enforcement Administration, were on the brief for respondent.
    Before McGOWAN, TAMM and LEVENTHAL, Circuit Judges. '
   LEVENTHAL, Circuit Judge:

This case is before us on a petition for review of the rejection of a petition which sought to initiate a rule-making proceeding looking toward a change in the control applicable to marihuana under the Controlled Substances Act (21 U.S.C. § 801 et seq.)

The rule-making petition was filed May 18, 1972, by The National Organization for the Reform of Marijuana Laws (NORML) and other organizations concerned with the Federal Govérnment’s treatment of the marihuana problem. The petitioners requested that respondent remove marihuana from control under the Act, or in the alternative, transfer marihuana from Schedule I to Schedule V in the control scheme established by that Act.

The rule-making petition was filed with, and the petition in this court named as respondent, the Director of the Bureau of Narcotics and Dangerous Drugs, to whom the Attorney General had delegated his authority under the Act. We remand for further proceedings.

A. The Rejection of the Rule-making Petition

The response to the petition reflects some official confusion. We are asked to review the decision dated September 1, 1972, published in the Federal Register of September 7 (37 Fed.Reg. 18097), that the petition was not accepted for filing on the ground that respondent “was not authorized to institute proceedings for the rule requested.” He specified in this connection the provisions of the Act and its legislative history which he relied upon as the basis for his opinion; namely, that by virtue of Section 201(d) of the Act, 21 U.S.C. § 811(d), he was required to establish the controls appropriate to carry out obligations under the Single Convention on Narcotic Drugs, 1961, 18 U.S.T. 1407 (1967) (“Single Convention”) and that these obligations insofar as marihuana is concerned precluded consideration of either removing marihuana from all schedules or transferring it from Schedule I to Schedule V.

The petition in this court was filed on September 12.

B. Basic Authority to Decontrol Substances or Transfer to Different Schedules

The Act’s classification scheme was a cardinal feature of the effort by Congress to rationalize the Federal Government’s control programs for dangerous drugs. The Act’s five Schedules define classes of drugs and substances pursuant to criteria set in terms of dangers and benefits of the drugs. Differences in consequences and sanctions attach to the differences in classification. For example, the offense of distribution is a felony as to Class I drugs, a misdemeanor as to Class V drugs.

Congress contemplated that the classification set forth in the Act as originally passed would be subject to continuing review by the executive officials concerned, notably in the Department of Justice and the Department of Health, Education and Welfare. Provision was made for further consideration, one taking into account studies and data not available to Congress when the Act was passed in 1970. Section 202 of the CSA, 21 U.S.C. § 812, establishing the schedules of controlled substances, provides that “such schedules shall initially consist of the substances listed.” (Emphasis added.) Subsection (c) provides “Schedules I, II, III, IV and V shall, unless and until amended pursuant to [21 U.S.C. § 811] consist of the following drugs. . . .’’In subsection (a) of § 201 of the Act, 21 U.S.C. § 811, Congress provides that the Attorney General shall apply the provisions of the Act to the controlled substances listed in the schedules (in § 202) and other drugs added to such schedule, and “may, by rule,” add substances to a schedule, transfer them between schedules, or “remove any drug or other substance from the schedules.”

Section 201(a) of the Act, 21 U.S.C. § 811(a), provides that such rules shall be made on the record after opportunity for hearing, pursuant to the rulemaking procedures prescribed by 5 U.S.C. ch. 5, subch. II. It further provides that proceedings for adding, transferring, or deleting substances may be initiated by the Director on his own motion, at the request of the Secretary of Health, Education, and Welfare, or on the petition of any interested party. 21 U.S.C. § 811(a). The Act provides that the Attorney General, before initiating proceedings to either control a substance or to remove one from the schedules, shall “request from the Secretary [of HEW] a scientific and medical evaluation, and his recommendations”. The Secretary is directed to consider certain factors listed in § 201(c) — pharmacological effect, risk to the public health, psychic or psychological dependence. He is also directed to consider any scientific or medical considerations involved in other listed factors — such as actual or relative potential for abuse; history and current pattern of abuse; scope, duration and significance of abuse. The statute provides that the Secretary’s recommendations “shall be binding on the Attorney General as to such scientific and medical matters; and if the Secreary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance.” § 201(b) CSA, 21 U.S.C. § 811(b).

Put in a larger setting, the provisions for modiifcation of Schedules betoken the same approach of ongoing research, study, and supplemental consideration that characterize other provisions. The Controlled Substances Act is the short title for Title II (Controls and Enforcement) of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Other provisions of the legislation provided for studies and researches by HEW or contracting agencies, for coordination of ongoing studies and programs in the White House under the Special Action Office for Drug Abuse, and for establishment, see § 601, CSA, of a Presidential Commission on Marihuana and Drug Abuse. The House Report recommending that marihuana be listed in Schedule I notes that this was the recommendation of HEW “at least until the completion of certain studies now under way,” and projects that the Presidential Commission’s recommendations “will be of aid in determining the appropriate disposition of this question in the future.” H.R.Rep.No. 91-1444 (Part 1), 91st Cong., 2d Sess. (1970) at p. 13, U.S.Code Cong. & Admin.News 1970, p. 4579.

The Executive is aware of its general authority under the Act to modify the classification initially set by Congress, and indeed has exercised that authority, as in the transfer of amphetamines from Schedule III to Schedule II.

The Executive has a corollary responsibility to give appropriate consideration to petitions for reclassification. And, indeed, certain petitions have been designated for official consideration. The respondent’s action in declining to accept the petition filed May 18, 1972, does not confront us with a supposed prerogative to reject any petitions before considering them. The action was based on the ground that outstanding treaty commitments preclude any executive relief, and that becomes the crucial question before the court.

We pass by a subsidiary contention that even if there are current treaty obligations, the executive officials have a duty to consider the petition toward the objective of possible modification of legislative or treaty action. There are some statutes that place on executive officials the judicially enforceable duty of preparing a report even though the ¡subject is one that would require legislative rather than executive action. Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972). We are doubtful whether such a judicially enforceable duty appears in the Controlled Substances Act, at least during a period when the legislature plainly contemplates that reports targeted toward legislative reconsideration will be the province of a specially designated and constituted commission, broadly based so as to reflect the impact of officials selected by both legislative and executive branches. However, even this issue is one that should not be determined prior to a focusing on the major issue, the nature of treaty obligations.

C. The Issue of the Requirement of Treaty Obligations

1. Government counsel say that unless marihuana is subject to the restrictions imposed by § 306 of the Act (21 U.S.C. § 826), applicable only to Schedules I and II substances, the United States will be unable to carry out its obligations under Article 21 and related provisions of the Convention. As we point out later, this was not made the subject of focused discussion and consideration in respondent’s decision.

2. Petitioners assert that the treaty, the Single Convention on Narcotic Drugs, does not regulate marihuana as such, that it regulates “cannabis” and “cannabis resin,” and these are carefully defined so as to be inapplicable to the leaves of the cannabis plant. They say that the question of removing the leaves from the controls of the Act should be referred to the Secretary of Health, Education and Welfare and that rule-making proceedings should be instituted.

The convention does not specify any mandatory controls the parties must adopt as to the leaves. The petitioners claim that the official commentary makes clear that the Convention permits use of the leaves for recreational purposes.

Government counsel say that respondent did not deal with the “leaves” question presented to this court by petitioners, and that this court should affirm respondent’s action with permission to petitioners to file a new application under the Act. The Government’s brief says the application sought only the removal or transfer of “marihuana” as that term is defined in the Act. We have some difficulties with this procedural approach. It is not at all unusual for persons seeking governmental action ■ — from any of the branches — to pray for the maximum desired, or such other relief as may be deemed appropriate. To say that this may act as a disqualification from obtaining more limited relief is to strain ordinary conceptions of fair procedure, in the absence of an express warning or alert.

4. Moreover, we are uneasy that respondent’s own unorthodox procedural devices may have contributed to a procedural impasse and a non-responsive discussion on different planes of discourse.

Respondent refused to accept the petition for filing. The outright rejection of the filing of a petition is an executive or administrative action that has only a narrow role. A “rejection” of a party’s filing is a “peremptory” action, soundly used only in “the clear case of a filing that patently is either deficient in form or a substantive nullity.” Municipal Light Boards v. FPC, 146 U.S.App.D.C. 294, 298, 450 F.2d 1341, 1345, (1971) cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972).

In this case there is no procedural defect or failure to comply with a clear-cut requirement of law. What accounted for respondent’s action is his conclusion on the merits that the petition sought action inconsistent with treaty commitment. Even if we accept the argument now put forward by Government counsel as to the relationship between Article 21 of the Treaty and § 306 of the CSA, the point is not obvious or clear-cut, but requires a reflective consideration and analysis. That kind of determination should have been reflected in an action denying the petition on the merits, an action that can be taken without convoking a formal rule-making proceeding when issues of law are decisive and can be decided without taking testimony or hearing the views of others involved. The matter is not critical so far as judicial review is.concerned, as appears from our order (footnote 3, supra) designating the case as one pending before us on a petition to review a “final decision,” filed under § 507 of the Act, 21 U.S.C. § 877. But if this had been handled properly by respondent as a decision on the merits, petitioners could have refined their alternative position in the light of respondent’s decision.

Instead they considered respondent’s “rejection” of even a filing to signal short shrift for a serious presentation. It was not the kind of agency action that promoted the kind of interchange and refinement of views that is the lifeblood of a sound administrative process.

5. More difficult of analysis is the assertion in the Government brief that the “leaves” argument is an “academic after-thought.” The petition filed with the Department of Justice in May 1972 was certainly primarily concerned with marihuana in the large. It was filed within two months after the release of Marihuana: A Signal of Misunderstanding, the title given to the First Report by the National Commission on Marihuana and Drug Abuse, chaired by Governor Shafer. It relied on that report in good measure, in some respects relying less on the Shafer Report itself than on what petitioners called “the more objective'Appendix” for “an accurate picture of the scientific evidence.” The contention was that marihuana does not meet the criteria in the Act for Schedules I and II substances, that, e. g., it has neither an actual nor relative “high potential for abuse.”

6. The respondent took the petition as addressed to all marihuana plant material as used, including the flowers, and his decision quoted from the petition as follows: “In summary, the plant material of what is commonly called marihuana in the United States consists of a mixture of crushed leaves, flowers and twigs of the Indian Hemp plant, an annual belonging to the single species of Cannabis sativa.”

This sentence appears in the petition in passing, as a preliminary to discussion of the state of current knowledge on marihuana. It does not fairly indicate that petitioners were implacably limited in terms of relief sought to the plant as a whole. When the respondent set forth his position on treaty obligation, he did not say one word about the presentation in the petition on the international obligations issue, where the petition expressly points out that leaves are not covered by the treaty and adds: “The narrow definition of marihuana and the attendant limitations on mandatory regulations, are significant since it is the leaves of the marihuana plant that are commonly used in the United States.”

7. Obviously, this court is in no position to decide this case in its present posture. Having in mind our doubts as to the propriety of the respondent’s action in rejecting even the filing of the petition, we think the optimum course, in the interest of justice, 28 U.S.C. § 2106, and a sound disposition, is to remand the case to respondent for further consideration, to be denominated a consideration on the merits. This consideration will embrace the subject of removal or transfer of control of the leaves of the plant.

On the remand, respondent will also supply findings that will sharpen and clarify the issue whether control under Schedules I and II is required as to the flowers. The decision under review rightly refers to § 201(d) of the Act as establishing a basis for control under the Act if required by treaty obligations. But the decision seems to go further and say that if some control is required by treaty then the decision of which Schedule is appropriate is a matter for the exclusive decision of the respondent as the delegee of the Attorney General. This is a matter that gives us pause. The respondent seems to be saying that even though the treaty does not require more control than schedule V provides, he can on his own say-so. and without any reason insist on Schedule I. We doubt that this was the intent of Congress.

On appeal to this court, Government counsel argue that the structures of the treaty (Art. 21) and pertinent statutes (CSA § 306) are such that the only way to satisfy treaty obligations is by control under Schedule I. But this is argument of counsel, which cannot take the place of reasoned decision-making by the official or agency concerned. And petitioners join issue on the meaning of the Treaty and the nature of the required mechanics.

The matter is not one on which the expertise of respondent is exclusive, and it would seem appropriate for the court to have the benefit of the views of sources in the State Department and the international organizations involved. If it should develop, as petitioners suggest, that there is latitude in treaty obligations depending on the country’s assessment of the health aspects of the problem involved, a substantial question would arise whether the Department of Justice may insist on making these determinations without obtaining the appraisal of the Department of Health, Education and Welfare.

Our conclusion that such a remand is appropriate is fortified by the reorganization and redelegation of authority within the Department of Justice, under which the pertinent functions of the Attorney General now have been transferred to the Director of the Drug Enforcement Administration, an official who can provide a new look and a hard look at the questions raised by the petition.

The ease is remanded for further proceedings not inconsistent with this opinion.

So ordered.

      . A reorganization occurred within the Department of Justice while the case was pending in this court and the action was continued against the Director of the Drug Enforcement Administration as respondent.

      . On July 27, 1972, respondent filed a notice with the Federal Register announcing that the petition was not accepted for filing. On July 31, 1972, respondent filed what he described as an action causing his earlier action to be “withdrawn.” Then came the action of September 7, 1972, under review.

      . It was originally denominated a petition for mandamus. On December 7, 1972, this court denied mandamus, but ordered that the petition be considered as a petition for review filed pursuant to 21 U.S.C. § 877.

      . United States v. Moore, 158 U.S.App.D.C. 375, at pp. 407-410, 486 F.2d 1139, at pp. 1171-1174, 1973 (concurring opinion).

      . In either class, mere possession is only a misdemeanor. Distribution of a small amount of marihuana for no remuneration is treated as a misdemeanor violation, see § 401(b)(4) of the Act, 21 U.S.C. § 841(b)(4).
      We interject that counsel for petitioners, at oral argument, put it that their alternative request for transfer from Schedule I to Schedule V, would have consequence not only in terms of Federal legal sanctions, but also significance as to administration and enforcement of state and local laws, which are influenced by Federal classification.

      . a. A petition to transfer Pentazocine to schedule III filed by Joseph Fink, III, R. Ph. et al. on October 5, 1971, accepted for filing in a notice appearing in the Federal Register of November 10, 1971 (36 F.R. 21527).
      b. A petition to transfer certain depressants to schedule II filed by Robert M. Brandon’ et al. on March 8, 1972, accepted for filing in a notice appearing in the Federal Register of May 11, 1972 (37 F.R. 9500) ; and
      c. A petition to remove Levodesoxyephedrine (methamphetamine) from control filed by Hexagon Laboratories on March 16, 1972, accepted for filing in a notice appearing in the Federal Register of July 7,1972 (37 F.R. 13352).

      . Article 21 of the Convention puts a maximum on the total quantities of drugs manufactured (Limitation of Manufacture and Importation) and imported by any country in any one year — essentially, to the quantity consumed for medical and scientific purposes, for manufacture of other drugs and of substances not covered by this Convention, and for exports stock replacement. Each country must annually furnish to the International Narcotics Control Board its annual estimates of its drug requirements (Article 19) and specified statistical returns (Article 20).

      . Articles 1(b) and (c) of the Convention provide:
      “Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.
      “Cannabis resin” means the separated resin, whether crude or purified, obtained from the cannabis plant.
      In the petition filed with respondent, petitioners cite — for the proposition that “leaves of the cannabis plant . . . are not controlled” — The Cannabis Problem: A Note on the Problem and The History of International Action, United Nations Bulletin on Narcotics, Vol. 14, No. 4 (Oct.-Dec. 1962), p. 31.

      . See Article 28, par. 3. Article 28 provides:
      1. If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in article 23 respecting the control of the opium poppy.
      2. This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes.
      3. The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.

      . As the court there put it, the rejection of a filing is a “peremptory” response “which classically is used not to dispose of a matter on the merits but rather as a technique for calling on the filing party to put its papers in proper form and order. Its use is not limited to defects of form. It may be used by an agency where the filing is so patently a nullity as a matter of substantive law, that administrative efficiency and justice are furthered by obviating any docket at the threshold rather than opening a futile docket.” 146 U.S.App.D.C. at 299, 450 F.2d at 1346.

      . Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125 (1969).

      . Petition, Part II, A, 1(A), footnote 20.

      . Petition, Part II, A, 1(C). “The State of Current Scientific Knowledge Regarding Marihuana.”

      . See Part II, A, 1(1) of Petition, “Control of marihuana in Schedule I is not required of the United States by international obligations.”

      . Section 201(d), 21 U.S.C. § 811(d) provides :
      If control is required by United States obligations under international treaties, conventions, or protocols in effect on the effective date of this part, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 202(b) of this title [21 U.S.C. 812(b)] and without regard to the procedures prescribed by subsections (a) and (b) of this section. 21 U.S.C. § 811(d).

      . Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed. 2d 207 (1962); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 632 (1973); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411, 379 F.2d 453, 465 (1967).

      . We have given petitioners leave to lodge the Commentary on the Single Convention prepared by the Secretary-General of the United Nations, but we cannot fairly undertake the task of studying this bulky document and providing its due assessment.
      A rule-making proceeding may be established in phases. In the first phase, the Department of Justice could consider whether there is any latitude consistent with treaty obligations, and herein receive expert testimony limited to this treaty issue. The second phase would arise only if some latitude were found, and would consider how the pertinent executive discretion should be exercised.


source: Caselaw Access Project

author: TAMM, Circuit Judge:

license: Public Domain

text:
    Leonard S. GOODMAN, Appellant, v. PUBLIC SERVICE COMMISSION OF the DISTRICT OF COLUMBIA et al., Appellees.
    No. 73-1345.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 15, 1974.
    Decided March 25, 1974.

      Leonard S. Goodman, pro se.
    Carl D. Hobelman, New York City, of the bar of the Court of Appeals of New York, pro hae vice by special leave of Court for appellee, Potomac Electric Power Co. Cameron F. MacRae, New York City, Stephen A. Trimble and George W. Warlick, Washington, D. C., were on the brief for appellee, PEPCO. Edward A. Caine, Washington, D. C., also entered an appearance for appellee, PEPCO.
    C. Belden White, II, Asst. Corp. Counsel, Washington, D. C., for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, Washington, D. C., was on the brief, for Public Service Commission of the District of Columbia.
    Before BAZELON, Chief Judge, TAMM, Circuit Judge, and WYZANSKI, United States Senior District Judge for the District of Massachusetts.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   TAMM, Circuit Judge:

This is an action under §§ 43-704 to 43-710 of the District of Columbia Code challenging an order of the Public Service Commission of the District of Columbia (hereafter “Commission”) granting the Potomac Electric Power Company (hereafter “Pepeo”) an increase in rates. The matter first came before the District Court in October, 1970, and was dismissed on procedural grounds without prejudice. This court subsequently reversed and remanded for consideration on the merits. The District Court again affirmed the Commission and dismissed the complaint. Appellant Goodman brings this appeal, and, for the reasons stated below, we affirm.

I. BACKGROUND

On February 27, 1969, Pepeo filed an application with the Commission for permission to increase its rates for electric service in the District of Columbia. Prior to hearings on the requested rate increase, Pepeo filed an emergency application for an interim rate increase. The emergency application was deferred by the Commission and the two applications were consolidated for hearings.

The Commission then held extensive hearings on Pepco’s applications and numerous intervenors gave the Commission the benefit of their views. Appellant Goodman chose not to intervene nor otherwise participate in hearings before the Commission. The Commission ordered an interim rate increase, without comment on the issues here under review. This order is not challenged by appellant.

On April 15, 1970, the Commission issued Order No. 5429 directing Pepeo to file proposed rate schedules which would increase its annual gross operating revenues within the District of Columbia by $10,220,788. Such an increase in revenues was based on 1) a determination that $854.3 million was the proper rate base on which Pepeo should be allowed a fair rate of return; and 2) that Pepeo should earn 7.1% on this rate base.

On May 14, 1970, appellant filed a Petition for Reconsideration of Order No. 5429 which was denied by the Commission in its Qrder No. 5434. Appellant then filed his complaint and petition of appeal in the District Court. After certain procedural difficulties were overcome, the District Court affirmed the Commission in all respects and appellant brought the case before us.

II. SCOPE OF REVIEW

Appellant seeks review of Order No. 5434 pursuant to 43 D.C.Code § 706 (1973) which provides;

§ 43-706. Appeal limited to questions of law.
In the determination of any appeal from an order or decision of the Commission the review by the court shall be limited to questions of law, including constitutional questions; and the findings of fact by the Commission shall be conclusive unless it shall appear that such findings of the Commission are unreasonable, arbitrary, or capricious.

Clearly, review under § 43-706 is limited to questions of law, with the Commission’s findings of fact deemed conclusive unless found to be “unreasonable, arbitrary, or capricious.” D.C. Transit System, Inc. v. Public Utilities Comm'n, 110 U.S.App.D.C. 241, 292 F.2d 734, 735 (1961). In Washington Gas Light Co. v. Baker, 88 U.S.App.D.C. 115, 188 F.2d 11 (1950), cert. denied, 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686 (1951), this court, per Bazelon J., held that the Commission’s authority to regulate rates is identical to the authority of the Federal Power Commission to set rates under the Natural Gas Act. It was there stated:

Section 43-301 of the District of Columbia Code provides that “. The charge made by any public utility for any facility or services furnished, or rendered, or to be furnished or rendered, shall be reasonable, just and nondiscriminatory.”
This statutory standard, taken together with the limitation of our review to “questions of law” and to findings of fact only if they are “unreasonable, arbitrary, or capricious”, invests the District of Columbia Public Utilities Commission with the same broad authority as is possessed by the Federal Power Commission under the Natural Gas Act. The Supreme Court has said that that Commission is “not bound to the use of any single formula or combination of formulae in determining rates”, so long as the “total effect,” “impact” or “end result” of the rate order “cannot be said to be unjust or unreasonable.” The limits set by the Court are deliberately broad, resulting both from notions of special competence and the conception of rate-making as a primarily legislative process. So long as the public interest — i. e., that of investors and consumers — is safeguarded, it seems that the Commission may formulate its own standards.

188 F.2d at 14-15. (Emphasis in original; footnotes omitted.)

The Supreme Court has clearly held that great deference shall be given to Power Commission expertise under Section 19(b) of the Natural Gas Act which has, we reiterate, been held by this court, in Washington Gas Light, supra, to be analogous to 43 D.C.Code § 706.

. It must be said at the outset . . . [the reviewing] Court’s authority is essentially narrow and circumscribed.
Section 19(b) of the Natural Gas Act provides without qualification that the “finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission’s expertise, and those who would overturn the Commission’s judgment undertake “the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.”

Permian Basin Area Rate Cases, 390 U.S. 747, 766-767, 88 S.Ct. 1344, 1359, 20 L.Ed.2d 312 (1968).

We approach appellant’s arguments with these guidelines firmly in mind. It is our duty to examine the Commission’s Order to see if it is supported by substantial evidence in the record. This court is not to substitute its view for that of the Commission, even if the Commission chooses between one of two or more permissible but conflicting alternatives. Washington, Marlboro & A. M. Lines v. Public Utilities Comm’n, 114 F.Supp. 328, 333 (D.D.C. 1952), aff’d, 93 U.S.App.D.C. 63, 206 F.2d 490 (1953). It is especially important to accord great respect to the Commission in a complex, esoteric area such as rate making in which the Commission has been entrusted with the difficult task of deciding among many competing arguments and policies. Our determination must focus on whether the result reached is arbitrary and appellant bears the burden of clearly demonstrating arbitrary action. He cannot meet this burden by advancing alternative techniques from which the Commission could have chosen. FPC v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 88 L.Ed. 333 (1944); Potomac Electric Power Co. v. Public Utilities Comm’n, 81 U.S.App.D.C. 225, 158 F.2d 521, 524 (1946), cert. denied, 331 U.S. 816, 67 S.Ct. 1303, 91 L.Ed. 1834 (1947). United States v. Public Utilities Comm’n, 81 U.S.App.D.C. 237, 158 F.2d 533, 536 (1946), cert. denied, 331 U.S. 816, 67 S.Ct. 1305, 91 L.Ed. 1835 (1947). In any analysis of whether an end result (i. e. the new rate) is not arbitrary, we are aware that since the result is but the “sum of a number of components,” each component must be analyzed. Mississippi River Fuel Corp. v. FPC, 82 U.S.App.D.C. 208, 163 F.2d 433, 451 (1947). As is pointed out in the Mississippi River case, a component analysis was in fact used by Mr. Justice Douglas in the case of FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944) from which the “end result” language is often drawn. Id. at 603, 64 S.Ct. 281. We must ascertain, as appellee Pepeo agrees, “whether each of the Commission’s Order’s essential elements is supported by substantial evidence in the record.” If each component or element is not arbitrary or capricious, the end result will be a sound one.

III.

Appellant’s assertion that the Commission’s Order was arbitrary and unlawful is predicated upon four separate alleged errors:

1) The Commission erred in including $118,000,000 of construction work in progress in the rate base.
2) The Commission erred in establishing rates based upon an end-of-period rate base, rather than an average figure rate base.
3) The Commission erred in approving an excessive allowance for Federal income taxes as part of the rate base.
4) The Commission erred by allocating an excessive percentage of the system increase to the District of Columbia.

A. Construction Work in Progress

The Commission, in arriving at a systemwide rate base of $854.3 million, included $118 million of “construction work in progress.” This represents generating capability under construction which is not yet complete. Importantly, Pepeo does not capitalize interest pertaining to such construction. The District Court sustained this action of the Commission, noting that “the courts generally have deferred to the administrative agency’s choice in this matter, assuming, of course, that the result is not unjust or unreasonable.”

Utilities normally allocate a portion of their capital to expansion, i. e., to a plant which is under construction. Although such a plant is not yet producing electricity, it involves a cost to the utility during the construction period. The utility must ultimately receive an adequate return on the investment which has been placed in a non-producing plant under construction. This capital can be reflected in its rate base in one of several methods:

(1) Exclude plant under construction from the rate base, and in determining the realized return, disregard the interest capitalized (or “interest charged construction”). Recognize interest capitalized in the plant when construction is completed and the plant is placed in service.
(2) Include plant under construction in the rate base and include interest capitalized in arriving at the realized return. Include interest capitalized when the plant is completed and placed in service.
(3) Include plant under construction in the rate base; do not capitalize interest.

The Commission adopted method (3) here. It included plant under construction in the rate base and did not capitalize interest.

Appellant argues broadly that Pepeo is only entitled to have included in the rate base investments which are “used and useful,” which appellant asserts must mean actually- producing electricity. He would have the Commission utilize method (1) supra to secure for Pepeo the necessary compensation for its funds expended on construction. In support of this proposition he directs our attention to cases in which various utility commissions have chosen methods other than that adopted here.

Appellant convinces us of no more than the fact that there are several methods for handling plant under construction which have met with both regulatory and judicial approval. The Commission has followed the practice of including such plant under construction in Pepco’s rate base for more than twenty years. The Maryland Public Service Commission has approved the same approach in establishing Pepco’s rate base. Various courts have also approved inclusion of plant under construction in the rate base. The Maryland Court of Appeals stated:

The cases make it clear that usually there will be included as a part of the rate base either capitalization of interest during construction or the value of plant under construction, but not both since this would mean a duplication . . . ,-

Appellant’s major argument appears to be that if plant under construction is included in the rate base, the ratepayers will be forced to assume a responsibility to pay for property which does not now benefit them and that this duty properly should fall on those who invest in the utility. This overlooks the fact that here Pepeo has not capitalized interest during construction. The utility must be compensated, either by including in the rate base interest during construction or by including in the rate base the value of funds invested in the plant during construction. It is only when both plant under construction and capitalized interest are in the rate base that there would be produced an improper double return in the year of construction. So long as capitalized interest is not included in the rate base, the inclusion of plant under construction provides no excessive compensation to the utility.

In supporting its choice of method for treatment of plant under construction, the Commission articulated its reasons for choosing a method other than that proposed by appellant. In its justification of the inclusion of plant under construction in the rate base, the Commission observed that there were alternative methods available, providing no double return was granted the utility. The Commission specifically found that “the funds invested in construction are being used for the benefit of the public just as much as funds invested in plant in service,” particularly where “the record has demonstrated a continuing need for permanently financing a large construction program.” We believe this recitation is sufficient. Funds are not necessarily “used or useful” only when they are currently invested in completed plants. In fact, at least one commentator suggests that the method utilized here which requires utility ratepayers to pay construction costs “now rather than later” is, in the long term, the least expensive to the ratepayers. This would make the inclusion of plant under construction in the rate base, with its corresponding elimination of capitalized interest, a desirable alternative. At any rate, appellant fails to convince the court that there is any legal reason why such a method cannot be used. Since the Commission chose between alternatives, and achieved a reasonable result, we cannot disturb their findings.

Appellant makes an additional argument that if plant under construction is included in the rate base, it is necessary to make a compensating adjustment of test year revenue and expenses. It is argued that since the plant will be put into production at a future date and will then generate revenues, such additional net operating income should be anticipated and included in the test year rate base. The Commission did not make such adjustments because

[Tjhere is no basis on which we can determine whether the impact of construction work in progress upon net operating income, when such plant is completed, will be substantial. In any event, we have given specific effect to this possibility in setting rate of return at the lowest end of the range we have found to be acceptable.

Order No. 5434 at 4; J.A. at 127.

This statement is sufficient as a rationale. Appellant suggests no method by which such future revenue, expense, and income could be calculated accurately. The treatment of plant under construction utilized here is a recognition of the fact, not disputed, that the utility must be compensated for the use of funds expended for construction. If the Commission were compelled to adjust for projected net operating income, this compensation would be diminished or possibly lost entirely. We, therefore, reject appellant’s argument as to adjustments to net income. While appellant’s proposed capitalization of interest and exclusion of plant under construction would no doubt be an acceptable alternative to repay the utility for construction funds, the method adopted by the Commission is no less reasonable and we accord the Commission the right to choose between the two. FPC v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

B. Use of an End-of-Period Rate Base

The Commission utilized the traditional rate-of-return-on-rate-base method of rate making to arrive at Order No. 5429. It was necessary to determine Pepco’s revenues, expenses, and resulting net operating income over a “test-period” or “test-year”. The Commission adopted the twelve-month period from July 1, 1968 to June 30, 1969 as the test-year. In its ultimate determination of future revenue requirements, the Commission had a choice of two figures: 1) the average values applying throughout the test-year (“weighted” rate base); or 2) the values on the last day of the test-year (“end-of-period” rate base). The Commission chose to use the end-of-period rate base which was higher than average rate base by approximately $54 million. The choice of end-of-period rate base was based upon a finding that Pepco’s earnings had been adversely affected by “attrition”.

The Commission has defined “attrition” :

attrition arises from increases in the cost of plant. During a rate proceeding, the company is given an allowed rate of return based on its investment in its plant. However, as time passes during periods of inflation, and additions or replacements are made to plant, these additions and replacements cost more than similar items did at the time of the rate proceeding. The basic assumption of the rate-making process is that increases in plant will automatically earn the rate of return authorized since they will lead to increased revenues. However, where inflation causes the cost of plant to increase, and the authorized rates remain constant, the rate of return may decline. This phenomenon is what is called “attrition.” It involves the question whether the increase in plant cost will outstrip the the increase in net operating income, thus leading to a decline in the rate of return.

Re Potomac Electric Power Co., 64 P.U.R.3d 364, 381 (D.C.Pub.Serv.Comm’n 1966). (Hereafter “Potomac Electric 1966”). In Potomac Electric 1966, the Commission stated that an average test-year rate base should always be used to evaluate a company’s historical record. Normally, such an average rate base should be used to determine future revenue requirements as well. It is the Commission’s view that only if there is a showing of attrition in the company’s earnings due to inflation is the use of an end-of-period rate base justified. The Commission has previously used such an end-of-period rate base, and the use of such a rate base has been affirmed by the United States District Court on at least one occasion.

In Order No. 5429, the Commission reaffirmed its view that a finding of attrition is a necessary predicate for the use of an end-of-period rate base. The Commission then specifically found that:

. this record does support the conclusion that attrition exists and, accordingly, that an end-of-period rate base should be used in determining the company’s future revenue requirement.

Order No. 5429 at 13; J.A. at 90.

Appellant makes three arguments against the use of an end-of-period rate base. He argues, first, that there is no basis in the record to support the factual finding of attrition. Second, he contends that the use of an end-of-period rate base is improper because it duplicates the consideration given to inflation in establishing the fair rate of return. Third, he asserts that the action here constitutes a present payment for past Pepeo losses and so is contrary to law.

As to appellant’s first argument that there is no basis in the record to support a finding of attrition, it is true that there was a strong difference of opinion among the witnesses as to whether attrition existed and whether, if it did, it was inflation-related. Given the limits upon our review of questions of fact under the substantial evidence test, it is sufficient that there exists relevant evidence in the record upon which the Commission could have relied; their view of that evidence, not ours, must prevail. Democratic Central Cornmittee v. W. M. A. T. C., 158 U.S.App.D.C. 68, 485 F.2d 847, 856 (1973).

In Potomac Electric 1966, the Commission referred to three factual indices of attrition: 1) a declining rate of return ; 2) a comparison of the percentage increase in the average rate base and the percentage increase in net operating income; and 3) the trend of the “operating ratio.” Here the Commission found a declining rate of return. On the 1968 average rate base, Pepeo earned 6.45%. During the test year it earned 6.27%. For the twelve months ending December 31, 1969, the estimated return was found to be 6.14%. Having found a declining rate of return, the Commission examined the two other in-dices to ascertain whether this decline was attrition related. The Commission applied the Potomac Electric 1966 tests and found that “the weighted rate base at June 30, 1969 had grown 39.42% from its level at June 30, 1965, while net operating income in the same period had grown 36.23%.” The Commission also found that the operating ratio was increasing throughout 1968 and 1969. This means that for that period, the percentage of revenues remaining after meeting operating expenses was declining. After a thorough examination of the record, we find that there was ample evidence to support the Commission’s findings that the rate of return had declined and that, following the attrition tests from Potomac Electric 1966, the decline was attrition related. Mr. Charles L. Carr testified at length, introducing numerous exhibits which support the findings of the Commission as to rate of return, operating ratio increase, and decrease in the percentage increase in operating income in comparison to the percentage increase in weighted rate base. While certainly there was conflicting testimony introduced, the record fully supports the Commission’s finding of attrition.

Appellant attacks the factual finding of attrition by stating that the net operating income merely appears to grow at a slower pace than the net investment because of the inclusion of construction work in progress in the net investment figure. We find no merit in this argument. Attrition is basically a loss of real revenue dollars to the utility. Plant under construction properly was included in the rate base to compensate the utility for funds expended in construction. (See Part III. A. supra.) It is true that additions of construction work in progress will depress current returns. In Potomac Electric 1966 the Commission established several indices of attrition, and found that on the evidence there an attrition situation did not exist. There was a substantial amount of plant under construction in the rate base in both the 1966 proceeding and the instant one. Here, however, the record supports the finding that the net operating income is not increasing as fast as plant and that the operationg ratio is up. The Commission was not acting unreasonably when it found that “[t]he impact on the company’s return which we found to exist goes beyond the simple impact of plant expansion and significantly reflects the effect of inflation . ”, and this during the period 1966-1969 in which inflation was severe.

Next, appellant asserts that even if attrition is found, it is error to take account of the effects of inflation twice, i. e. by adopting end-of-period rate base and by increasing the overall fair rate of return allowed. We believe that the rate-payers are not being “double-charged.” It was proper for the Commission to take inflation into consideration both in setting the rate of return and in choosing an end-of-period rate base because inflation affects the utility in several different ways. Inflationary factors must be noticed and evaluated in determining rate of return in order to permit adjustment to reflect both the current cost of debt capital and a reasonable return on equity capital. Only by analyzing current economic factors can the Commission establish the level of return Pepeo should be permitted to earn in the current financial market. In this area extensive testimony was taken and fully summarized by the Commission in its order

The use of an end-of-period rate base was necessitated by another effect of inflation, i. e., the “attrition” of earnings. The Commission concluded that only by utilizing the end-of-period rate base could Pepeo actually realize the rate of return independently found to be fair. Had the historical average rate base been used, attrition would have made it unlikely that the company would be able to achieve the desired rate of return in the future.

Finally, appellant makes a bare assertion the Commission here permitted Pepeo to “charge higher fares in the future to offset past losses.” The Commission stated specifically that there was not “a causal relationship between [Pepco’s] financial plight and the rate case.” Since appellant offers no rationale for his allegation that the Commission by its order intended to recompense Pepeo for past losses, we find that he has not met his burden to prove arbitrary action.

In summary, we believe that there was ample evidence to support the Commission’s findings of attrition and that the use of an end-of-period rate base was necessary to permit Pepeo to realize the desired future revenues. We find no merit in appellant’s various alleged errors. As the district court noted, rates must be established for the future and the use of an end-of-period rate base which represents the most current data available seems to us a permissible selection well within the discretion of the Commission.

C. Allowance for Federal Income Taxes

In Order No. 5429, the Commission granted a system gross rate increase of $19,686,756 — representing $9,654,385 for additional after tax income and $10,032,371 for additional taxes. In so doing, the Commission, following its normal practice, applied the maximum statutory tax rate. Appellant asserts that this was error, claiming that since Pepeo has historically paid at an effective rate lower than the statutory rate, this lower effective rate should have been used to determine the new gross revenues to be earned by the company. It is argued that the Commission’s failure to consider and adopt a lower rate was unreasonable.

We believe that the Commission acted properly in the treatment accorded federal tax allowance. The method utilized was predicated upon the assumption that “the increase allowed a utility in a rate case is an allowance of additional net income before taxes and not gross income subject to additional expenses.” As such “the increase or decrease in net operating income ... is incremental to the test year data.” Appellant argues that it is incumbent upon the Commission to take into account the additional tax deductions for depreciation which will be available when new plant is placed in service.

The Commission is correct in its assertion, sustained by the district court, that under a test-year method of rate making, all additions to (or reductions in) net income are considered as if they were earned in the test year itself. Since in arriving at the rate base for the test period all allowable deductions have been taken into effect, no deductions remain to apply to the increased net income and it must be taxed at the statutory rate.

We are mindful of the new construction which will be put on line in the future and the additional deductions which likely will flow therefrom. However, rates are made utilizing data from the test-year, not mere projections of future values. Indeed appellant argues strongly in favor of using test-year values when the principle supports his contentions; he cannot have it both ways. Neither appellant’s brief nor our research discloses any case in which any regulatory body has deviated from the test-year method and adopted a method of tax allowance different than that which was employed here. The Commission rates establish an effective tax rate of 23.5%, a figure which is not unreasonable on its face. Since under a test-year method, the increase in net operating income is properly incremental to the test year, the Commission should apply the statutory tax rate; to do otherwise would be unnecessarily speculative and not logically related to the test-year method.

D. Allocation

Appellant alleges that the Commission allocates an excessive percentage of the systemwide rate increase to the District of Columbia. The Commission allocated 46.24% of the system revenue requirement to the District, based on their finding that: “During the Test-year, 46.24% of the total sales of electricity were derived from customers within the District of Columbia.” Appellant attacks this use of an allocation formula which is derived from revenue produced and asks that this court opt for his proposed formula which is based upon relative growth in demand for service between Maryland and the District.

Both the Supreme Court and this court have held that allocation is a question of fact, peculiarly within the expertise of the regulatory agency. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 589-590, 65 S.Ct. 829, 89 L.Ed. 1206 (1945); Mississippi River Fuel Corp. v. FPC, 82 U.S.App.D.C. 208, 163 F.2d 433, 437 (1947). The pertinent provisions of the D.C.Code do not prescribe a particular allocation formula, but rather require that a rate increase be “reasonable, fair, and just,” If, therefore, the Commission’s decision here was not arbitrary and was based upon record evidence, it must be affirmed.

The Commission found that Pepco’s investment program has been based upon systemwide needs and that “there is no significant difference in the cost of serving customers in the various political jurisdictions in which Pepeo operates.” This finding is well supported in the record. Appellant alleges that there is “no rational connection” between the systemwide uniformity of Pepeo’s cost and the allocation formula devised. We disagree. It is not unreasonable to find that whatever conceivable validity the factor of varying growth rates may have in some other context, here the cost of customer service is the same for customers in each jurisdiction. Since the use of a system-wide revenue requirement is here not challenged, the Commission must allocate the revenue increase between the various jurisdictions. With cost of service constant, it is not unreasonable to let the share of revenue increase follow the share of total test-year electricity sales applicable to each jurisdiction. By this formula each jurisdiction and customer must bear a share of the revenue increase equal to the amount of electricity that jurisdiction or customer used during the test-year. The latter figure, percentage of sales, is a rough index to costs, because costs are constant as between the jurisdictions. The Supreme Court, in Colorado Interstate Gas Co., supra, stated that the regulatory agency must “allocate to each class of the business its fair share of the costs.” This was done here, and we will not substitute appellant’s proposed allocation system for that chosen by the Commission.

IV. CONCLUSION

Quite possibly the Commission could have benefited from appellant’s views in the hearing phase of this proceeding. For reasons known only to himself, appellant elected not to participate. We will not burden the reader with a reiteration of the proper standard of review. Suffice it to say that under 43 D.C.Code § 706, ours is a limited function, and we hold that appellant has not carried his heavy burden to show that the Commission’s findings were clearly erroneous. We hold that the Commission acted properly and reasonably in its disposition of each of the elements of the order under review. We hold that the end results of the Commission’s action here, i. e., the rate base and rate increase, are just and reasonable. Accordingly, the decision below must be

Affirmed.

      . Goodman v. Public Service Commission, 151 U.S.App.D.C. 321, 467 F.2d 375 (1972).

      . Goodman v. Public Service Commission, Civil Action No. 1777-70 (D.D.C. filed January 22, 1973); J.A. at 15-24.

      . Interim Order No. 5402, October 27, 1969.

      . Intervenors participating included : General Services Administration for the United States Government; Washington Gas Light Company; D.C. City-Wide Consumer Council; The Washington Urban League; Arlington County Board; Capitol Group Ministry, Inc.; United Planning Organization; Consumer Council, CHANGE, Inc.; Mr. David Blanken, pro se; and Safeway Stores, Inc. Order No. 5429 at 3; J.A. at 80.

      . Appellant sought reconsideration of the Commission’s order approving the rate increase. 43 D.C.Code § 704 (1973) requires a party desiring judicial review to seek reconsideration as a prerequisite to jurisdiction in the District Court. We note that Section 43-704 requires only that one seeking reconsideration have been “affected by” the Commission’s action; he need not have been a party to the proceedings which he now wishes to challenge. Compare Federal Power Act, 16 U.S.C. § 825l(a) (1970) and The Natural Gas Act, 15 U.S.C. § 717r(a) (1970), which limit access to reconsideration and judicial review to those who were parties to the agency proceeding.

      . Order No. 5419, January 30, 1970.

      . J.A. at 78-123.

      . This figure was reduced to $9,103,156 by Order No. 5434, June 12, 1970; J.A. at 138.

      . See n. 5 supra.

      . June 12, 1970; J.A. at 124-41.

      . See Goodman v. Public Service Comm’n, supra n. 1.

      . See United States v. Public Util. Comm’n, 81 U.S.App.D.C. 237, 158 F.2d 033, 536 (1946), cert. denied, 331 U.S. 816, 67 S.Ct. 1305, 91 L.Ed. 1835 (1947).

      . Brief of Pepeo at 8.

      . Order No. 5429 at 9; J.A. at 86.

      . Goodman v. Public Service Commission, supra n. 2 at 4; J.A. at 18.

      . J. C. Bonbright, Principles of Public Utility Kates 178-79 (1961). Bolster, Should Plant Under Construction be Included in Rate Base? 87 Pub.Util.Fort., May 27, 1971 at 25.

      . Bolster, supra n. 16 at 25-26. For a discussion of the various approaches see Bonbright, supra n. 16 at 178-80; 1 A.J.G. Priest, Principles of Public Utility Regulation 178-80 (1969).

      . Brief for Appellant at 8.

      . See, e. g., Re Potomac Electric Power Co., 89 P.U.R. (n.s.) 483, 502 (D.C.Pub.Util. Comm’n 1951); Re Potomac Electric Power Co., 28 P.U.R.3d 206, 213, 217 (D.C.Pub.Util.Comm’n 1959).

      . Re Potomac Electric Power Co., 83 P.U.R.3d 372, 380 (Md.Pub.Serv.Comm’n 1970).

      . Baltimore Gas & Electric Co. v. People’s Counsel, 220 Md. 373, 152 A.2d 825, 828 (1959); see also Re American Tel. & Tel. Co., 9 F.C.C.2d 960, 972 (1967); Goodman v. Public Service Comm’n of the District of Columbia, 309 A.2d 97 at 101-102 (D.C.App., 1973), and New England T. & T. Co. v. Department of Public Utilities, 275 N.E.2d 493, 502 (1971). The Massachusetts Supreme Court stressed the Commission’s discretion in this decision, stating:
      . . . there is likewise no constitutional requirement that the Department in the exercise of its rate-making power should or should not include plant under construction in computing the Company’s rate base. This court is not justified in overruling the action of the Department merely because it used one approach rather than another in this regard.
      275 N.E.2d at 503.

      . Bolster, supra n. 16 at 27-28.

      . See, e. g., Baltimore Gas & Electric Co., supra, n. 21 at 828 of 152 A.2d; Re Commonwealth Edison Co., 85 P.U.R.3d 199, 206 (Ill.Commerce Comm’n 1970) ; Re Wisconsin Electric Power Co., 77 P.U.R.3d 435, 438 (Wisc.Pub.Serv.Comm’n 1969) ; and cases cited n. 19 and 20 supra.

      . In its initial Order No. 5429, the Commission stated that “neither the staffs thorough review nor the questions raised by intervenors involve any dispute as to items which should be included in the rate base.” Order No. 5429 at 9; J.A. at 86. Therefore, the Commission did not articulate specifically its reasons for adopting the particular method chosen.
      After Appellant Goodman petitioned the Commission for rehearing, the Commission responded specifically on this issue in Order No. 5434, June 12, 1970 at 3-4; J.A. at 126-27. We are not troubled that the Commission’s full explanation comes in its later order.
      While clearly the Commission has an affirmative duty to develop a meaningful record, Democratic Cent. Com. of D. C. v. W.M.A.T.C., 158 U.S.App.D.C. 107, 485 F.2d 886, 905 (1973), every conceivable argument cannot be met in advance, and, indeed, when a party wishes to make a unique argument, it would benefit the Commission to have this argument presented at the initial hearing. See n. 5 supra and accompanying text.

      . Order No. 5434 at 4; J.A. at 127. The record demonstrates the reason for inclusion of plant under construction, i. e. to allow a return to Pepeo for funds expended for plant expansion. Testimony of witness Davis, Tr. at 626. This method had been utilized previously and was not contested by any witness. Testimony of witness Davis, Tr. at 630.

      . Morris, Capitalization of Interest on Construction : Time for a Reappraisal?, 87 Pub.Util.Fort., March 4, 1971. Mr. Morris states:
      A shift from the present method to “no capitalization of interest” results in utility customers paying the carrying costs on new construction now rather than later. Even if elimination of the practice of capitalizing interest requires some immediate rate increase, the longer-term effect runs counter to this. Capitalized interest increases the rate base and requires rate increases in the long run because of the increased depreciation charges (depreciation of capitalized interest) and the return on the undepreciated amount of capitalized interest in the rate base. Elimination of the practice of capitalizing interest will result in lower depreciation charges and a smaller return requirement in the long run, more than sufficient to offset any rate increases required initially.

        Id. at 26.

      . Appellant’s long recitation of cases is not persuasive. As he concedes, cases relied upon by appellee “contain broad language approving departures from the ‘used and useful’ concept.” Reply Brief of Appellant at 3. Appellant advances various arguments in order to distinguish the instant Commission action from previouly approved treatments of plant under construction, e. g. percentage of rate base “under construction”, here 14%| 118 million 854 million replacement v. expansion investment, long term v. short term nature of the construction involved. We believe that such arguments only illustrate the extreme factual complexity of any particular case. This court would be ill-advised to create per se rules which would needlessly interfere with the exercise of Commission expertise.

      . Brief of Appellant at 12.

      . J.A. at 81-6, 92. There were other possible alternative test years, e. g. (1) Calendar year 1968, or (2) Calendar year 1969 (estimated). The Commission chose 12 months ending June 30, 1969 and appellant does not argue that one of the other alternative test years ought to have been used.

      . The following table illustrates this difference:
      Weighted
      End-of-Period
      1. Electric plant in service $877,903,407 $ 895,889,261
      2. Construction work in progress 72,097,760 117,987,617
      3. Electric plant held for future use 1,815,001 2,618,516
      4. Total Electric Plant 951,816,168 1,016,495,394
      5. Reserve for depreciation— electric plant (180,130,452) ( 188,264,786)
      6. Net Electric Plant 771.685.716 828,230,608
      7. Materials and supplies 25,696,141 22,943,181
      8. Allowance for cash working capital 11,783,860 12,842,000
      9. Net Plant plus Working Capital 809.165.717 864,015,789
      10. Contributions in aid of construction 9,194,021) ( 9,668,580)
      11. Customers advances for construction ( __5,819) (_5,819)
      12. Net Rate Base $799,965,877 $ 854,341,390
      Order No. 5429 at 9; J.A. at 86.

      . See, e. g. Re Washington Gas Light Co., 24 P.U.R.3d 417, 427 (D.C.Pub.Util.Comm’n 1958); Re Potomac Electric Power Co., 28 P.U.R.3d 206, 217-18 (D.C.Pub.Util.Comm’n 1959); in Re Potomac Electric Power Co., 64 P.U.R.3d 364, 382 (D.C.Pub.Serv.Comm’n 1966) the Commission, after defining “attrition” and establishing tests thereof, found on the facts in that case that “attrition” did not exist sufficient to justify the use of an end-of-period base.

      . Re Chesapeake & Potomac Telph. Co., 57 P.U.R.3d 1, 26 (D.C.Pub.Serv.Comm’n 1964), aff’d sub nom., Telephone Users Ass’n, Inc. v. Public Serv. Comm’n, 271 F.Supp. 393, 394 (D.D.C.1967), aff’d, No. 21,318 (unreported) (D.C.Cir. October 21, 1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223, rehearing denied, 395 U.S. 987, 89 S.Ct. 2127, 23 L.Ed.2d 776 (1969).

      . Order No. 5429 at 13; J.A. at 90.

      . See, e. g., Bebchick v. W.M.A.T.C., 158 U.S.App.D.C. 79, 485 F.2d 858, 865 (1973).

      . Universal Camera Corp. v. NLRB, 340 U. S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ; Washington, Marlboro and A.M. Lines v. Public Util. Comm’n, 114 F.Supp. 328, 332-333 (D.D.C.1952), aff’d, 93 U.S. App.D.C. 63, 206 F.2d 490 (1953).

      . This is the ratio of operating expenses (excluding taxes and depreciation) to total operating revenues; Testimony of Witness Carr, Tr. at 740.

      . Order No. 5429 at 14; J.A. at 91.

      . Order No. 5429 at 14; J.A. at 91. Order No. 5434 at 5; J.A. at 128.

      . Order No. 5429 at 14; J.A. at 91.

      . Id. The operating ratio was found to be 39.23 for calendar 1967; 42.90 for the test period; and 43.10 (est.) for calendar 1969.

      . Direct Testimony of Witness Carr, Tr. at 736-40, 743, 745, 748; Cross-Examination of Witness Carr, Tr. at 799-800, 801-02, 852-54, 881-82, 886-88. Pepeo Exhibit No. 3, p. C-2.2; J.A. at 72; Pepeo Exhibit No. 2, p. D-2.2; J.A. at 68; Pepeo Exhibit No. 2A, p. D-2.5(a) ; J.A. at 70. Pepeo Exhibit No. 3, p. C-2.1; J.A. at 71.

      . We note that there were other indications of attrition presented to the Commission. However, it chose to rely upon the 3 indices discussed above.

      . Order No. 5434 at 5-6; J.A. at 128-29.

      . In the 1966 proceeding a 6.3% rate of return was allowed. Re Potomac Electric Power Co., 64 P.U.R.3d 364, 388 (D.C.Pub.Serv.Comm’n 1966). In the present proceeding, a 7.1% return was allowed. Order No. 5429 at 45; J.A. at 122. Appellant does not challenge the rate of return ordered here.
      The Commission stated: “We do indeed give consideration to the effects of inflation in determining the rate of return.” Order No. 5434 at 5; J.A. at 128.

      . E. g., Testimony of Witness Morton, Tr. at 907-13.

      . Order No. 5429 at 16-31; J.A. at 93-108.

      . This is because the use of the 1968 average rate base, which will return a given rate of return for the historical period, will fail to do so if the projected average rate base for a future year is considered. See Direct Testimony of Witness Carr, Tr. at 746-48; Cross-Examination of Witness Carr, Tr. at 878; Testimony of Witness Davis, Tr. at 597.

      . Brief of Appellant at 29-30; Reply Brief of Appellant at 8.

      . Order No. 5429 at 15 n. 1; J.A. at 92 n. 1.

      . Goodman v. Public Serv. Comm’n, supra n. 2 at 6; J.A. at 20.

      . See, e. g., New England T. & T. Co. v. Department of Pub. Util., supra n. 21; Board of Supervisors v. Virginia Electric & Power Co., 196 Va. 1102, 1121, 87 S.E.2d 139, 150-151 (1955) and cases cited therein; Re Cheyenne Light Fuel & Power Co., 79 P.U.R.3d 80, 87 (Wyo.Pub.Serv.Comm’n 1969); Re General Teleph. Co. of the Northwest, 23 P.U.R.3d 194, 196 (Idaho Pub.Util.Comm’n 1958); Re California-Pacific Utilities Co., 71 P.U.R.3d 270, 272 (Nev.Pub.Serv.Comm’n 1967); cases cited n. 21 supra.

      . As modified by Order No. 5434.

      . Order No. 5434 at 15; J.A. at 138. This represents a composite tax rate of 52.1%: 3.01% gross receipts tax, plus 2.69% D.C. franchise tax, plus 46.40% federal income tax. Order No. 5434 at 7; J.A. at 130. Appellant only alleges error in the size of the allowance for federal income tax.

      . The Commission has always applied a statutory tax rate in computing the required increase or decrease in gross revenues. See, e. g., Re Potomac Electric Power Co., 8 P. U.R.3d 76, 92 (D.C.Pub.Util.Comm’n 1955); Re Potomac Electric Power Co., 28 P.U.R.3d 206, 220 (D.C.Pub.Util.Comm’n 1959); Re Potomac Electric Power Co., 64 P.U.R.3d 364, 388 (D.C.Pub.Serv.Comm’n 1966); Re Washington Gas Light Co., 24 P.U.R.3d 417, 444 (D.C.Pub.Util.Comm’n 1958). This practice was apparently not challenged in these cases.

      . Pepco’s effective tax rate — the ratio of income tax expense to income tax expense plus net income — for the test year was 12.-7% of pre-tax net operating income since it was able to take tax deductions which ex- • ceed its book deductions, e. g., deductions for interest and depreciation. Appellant’s Br. at 34.

      . Order No. 5434 at 9; J.A. at 132.

      . Id. at 7, 130.

      . Brief of Appellant at 37. Reply Brief of Appellant at 9-10.

      . Goodman v. Public Serv. Comm’n, supra n. 2 at 8; J.A. at 22.

      . Appellant argued in favor of an average rate base over an end-of-period rate base claiming that the end-of-period rate base was “unrelated to the test period earnings of the company.” Brief of Appellant at 24. See part III, B. supra.

      . Indeed there appear to be few cases where the issue is even discussed. In Re Niagra Mohawk Power Co., 92 P.U.R.3d 461 (N.Y.Pub.Serv.Comm’n 1971), the precise argument made by appellant was rejected. However, the N.Y. Commission did not articulate its rationale. 92 P.U.R.3d at 473-74. In Goodman, supra n. 21, the District of Columbia Court of Appeals held that the application of a statutory rate was compelled under the test year method. Slip op. at 8-9.

      . Pepeo serves the District of Columbia, Maryland, and, to a very limited extent, Virginia. See Order No. 5429 at 36; J.A. at 113.

      . Order No. 5429 at 38; J.A. at 115.

      . 43 D.C.Code § 401 (1973).

      . Order No. 5429 at 37; J.A. at 114.

      . Direct Testimony of Witness Walters, Tr. at 1168. Direct Testimony of Witness Kagen, Tr. at 1579.

      . Brief of Appellant at 40.

      . Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 588, 65 S.Ct. 829, 833, 89 L.Ed. 1206 (1945).

      . See n. 5 supra and accompanying text.

      . Appellant has argued in Part V of his brief that the rate increase here granted does not meet the standard of 43 D.C.Code § 401 (1973) that it be “reasonable, fair, and just.”' We believe that the argument that the “end result” is unjust is merely an amalgam of the arguments on each of the four elements fully discussed above. The resolution of each issue by the Commission was reasoned and based upon substantial evidence ; therefore, the end result cannot be assailed.


author: J. SKELLY WRIGHT, Circuit Judge:

text:
    Ralph NADER et al., Appellants v. William Bart SAXBE et al.
    No. 73-1307.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 11, 1974.
    Decided April 4, 1974.

      William A. Dobrovir, Washington, D. C., with whom Andra N. Oakes, Washington, D. C., was on the brief, for appellants.
    Thomas G. Wilson, Atty., Dept, of Justice, with whom Morton Hollander, Atty., Dept, of Justice, was on the brief, for appellees. William D. Appier, Washington, D. C., also entered an appearance ' for appellees.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI Senior District Judge.

       Of the United States District Court for the District of Massachusetts, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

Plaintiffs-appellants, a citizen of voting age and a nonprofit corporation (Public Citizen, Inc.), sought a declaratory judgment, a mandatory injunction, and an “order in the nature of mandamus” to compel the Attorney General and the United States Attorney for the District of Columbia “to exercise their discretion to initiate prosecutions” against violators of the 1925 Federal Corrupt Practices Act (FCPA). The District Court, im a very able opinion, found standing to sue in the plaintiffs but dismissed their complaint for failure to state a claim on which relief could be granted. The court held also that the complaint was self-defeating in that it effectively admitted that the Attorney General had already exercised his prosecutorial discretion with respect to the FCPA. We affirm the dismissal,’ but on different grounds.

I

The FCPA required candidates and committees supporting candidates for the presidency, the Senate, and the House of Representatives to file reports on cafhpaign contributions and expenditures with the Secretary of the Senate (for Senate candidates and committees) and the Clerk of the House (for House ajad presidential candidates and committees). Failure to do so was punishable by fine and/or- imprisonment. The FCPA was repealed and superséded by the Federal Election Campaign Act (FECA), effective 60 days following the signing of the Act on February 7, 1972 (i. e., April 9, 1972), but the repeal did not eliminate criminal liability for violations of the old statute, these remaining subject to. prosecution until cut off by the five-year period of limitations.

The complaint, filed February 8, 1972, alleged that only one prosecution, a test case, had ever been brought under the FCPA. Supporting its contention that more could have been brought, the complaint listed many alleged violations committed in 1964, 1966, 1968 and 1970. Plaintiffs traced nonenforcement in recent times to a policy, allegedly adopted by Attorney General Herbert Brownell in 1954 and followed by his successors in office, to exercise prosecutorial discretion only with respect to violations referred to the Justice,Department by the Clerk of the House or the Secretary of the Senate. According to the complaint, such referrals were made only in November of 1968 and January of 1971; even in those years, many notorious violations were not referred; and the Justice Department ultimately declined to prosecute.any of the referred violations.

Plaintiffs claimed that the Justice Department’s passivity nullified the FCPA, “fostered corruption, fraud and dishonesty in the electoral process,” and deprived voters — such as plaintiff Nader —of important information about candidates for federal office. Accordingly, plaintiffs sought a declaratory judgment that the “failure to exercise [prosecutorial] discretion” and the “purported delegation” of enforcement duties to clerical aides of the Congress were unlawful. In addition, the complaint sought an injunction against the purported delegation and “an order in the nature of mandamus to defendants Attorney General and United States Attorney compelling them to exercise their discretion to initiate prosecutions "against violators of the FCPA.”

II

The District Court dismissed the complaint on two, alternate grounds. First, having examined a line of- precedent suggesting that prosecutorial decision-making is wholly immune from judicial review, the court concluded that

if plaintiffs are to have any relief they must acquire it at the appellate level or through the political process.

Second, the court held that the Attorney General’s determination not to prosecute 1968 and 1970 violations referred by congressional personnel amounted to an exercise of discretion:

Therefore, assuming arguendo that the court has the power to compel the defendants to exercise their discretion, it could do no more than order them to do what plaintiffs admit they have already done.

We would hesitate to affirm dismissal on either of - these grounds. That congressional personnel referred some violations to the Justice Department, which

the Department declined to prosecute, does not necessarily imply that the Department had abandoned the allegedly unlawful policies challenged by the plaintiffs, i. e., the policy of bringing absolutely no prosecutions and the policy of delegating preliminary' enforcement functions to persons outside the Executive Branch. Nor do established precedents necessarily foreclose judicial review of those policies. The instant complaint does-not ask the court to assume the essentially Executive function of deciding whether a particular alleged . violator should be prosecuted. Rather, the complaint seeks a conventionally judicial determination of whether certain fixjjd policies allegedly followed by the Justice Department and the United States Attorney’s office lie outside the constitutional and statutory limits of “prosecutorial discretion.”

Dismissal was nevertheless proper, for ¡'plaintiffs lack standing to sue. To hold this status, a litigant must show that he has sustained'or will sustain an injury in, fact, that his situation comes within a “zone of interest” arguably protected by the statute in question, and that a -“logical nexus” links the injury in fact to the governmental action sought or challenged. Plaintiffs adequately alleged as injury in fact the lack of election campaign information forthcoming under the FCPA. Plaintiffs would also appear to be in the “zone of interest” protected by the FCPA. But there is no longer a logical nexus between the injury and the relief sought. Plaintiffs do not seek any relief, e. g\, damages, for injuries already inflicted upon them by the allegedly unlawful policies of the Justice Department. Rather, they ask only prospective relief, i. e., declaratory judgment, mandatory injunction, and an order in the nature of mandamus. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972). Such relief will not remedy plaintiffs’ injuries, for it will not generate any campaign information. Enforcement of the FCPA, while still possible with respect to past violators, can no longer induce compliance with the^ Act’s reporting requirements, for the Act has been repealed!

Since the District Court’s opinion, the Supreme Court has empha- ■ sized that the nexus issue must receive close scrutiny where, as here, victims or potential victims of criminal acts sue to correct allegedly unlawful prosecutorial conduct. Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). We do not read Linda R. S. to preclude standing in all such suits, but the case before us is peculiarly weak. Concededly, a? the time the complaint was filed — 59 days before the effective date of the repeal legislation— it was not unreasonable to suppose that the relief sought would so alter enforcement of the FCPA ag to induce complianee during the final — March 1972 — reporting period. The ensuing flow of campaign information would have remedied plaintiffs’ injury. Such a plausible chain of effects often , meets the nexus requirement for standing. But, on April 9, 1972, months before the District Court’s decision was rendered, the chain was broken by effective repeal of the FCPA. A change now in Justice Department, policies would not stimulate a flow of pre-April 9, 1972 information, for past violators of the FCPA cannot escape,statutory liability by making tardy disclosure: Nor would a change of policies with respect to the FCPA have an adequate nexus with the future flow of campaign information. Repeal has terminated any duty to comply with the FCPA, and the new statute is so differ-^ ent in substance and procedure -that we cannot fairly predict that enforcement of the FCPA would induce compliance with it. Consequently, so far as standing is concerned, events have mooted this case.

Affirmed.

      . The complaint also named as defendants the Clerk of the House of Representatives and the Secretary of the Senate. The dismissal as to them has not- been appealed. Appellee Saxbe is a successor in, office to the party named in the complaint, John N. Mitchell, and to the party named in the District Court’s opinion, Richard G. Kleindienst. Appellee Silbert is successor in office to Harold H- Titus, Jr., named in the complaint and in the opinion of the District Court. These substitutions have been effected automatically pursuant to Rule 43(c), Fed.R.App.P., and Rule 25(d), Fed.R.Civ.P.

      . 43 Stat. 1070 et seq., 2 U.S.C. former §§ 241-256, repealed by the Federal Election Campaign Act (FECA), Pub.L. 92-225, Title IV, § 405, Feb. 7, 1972, 86 Stat. 20.

      . Nader v. Kleindienst, D.C., 375 F.Supp. 1138, 1973 (Memorandum and Order at 6-11).

      . Id. at 11.'

      . Required to report as “political committees” were all organizations accepting contributions or making expenditures designed to influence the general (not primary) election of federal candidates in two or more states. 2 U.S.C. former § 241. Financial reports were due annually on January 1, between the 1st and 10th days of March, June and September, and between the 10th. and 15th days and on the 5th day preceding any general election. 2 U.S.C. former §§ 244 & 247. The reports were to contain the total of all contributions and details about any contribution of $100 or more. 2 U.S.C. former § 244(a) (1) — (3). Also to be detailed was any expenditure of $10 or more. 2 U.S.C. former § 244(a) (4)-(6). Similar reporting requirements applied to the candidates themselves. 2 U.S.C. former §§ 246 & 247.

      ; A violation of the reporting requirements was punishable by a fine of not more than $1,000 and/or imprisonment for not more than one year, a willful violation by a fine of not more than $10,000 and imprisonment for not more than two years. 2 U.S.C. former § 252.

      . Pub.L. 92-225, 86 Stat. 3 et seq. (1972), 2 U.S.C. § 431 et seq. (Supp. II 1972). See note 29 infra.

      . The repealing statute did not provide for extinguishment of liabilities incurred under the FCPA. Accordingly, the liabilities survive repeal. 1 U.S.C. § 109 (1970)

      . 18 U.S.C. § 3282 (1970).-

      . Complaint for Declaratory Judgment and Mandamus, Civil Action No. 243-72, Feb. 8, 1972.

      . United States v. Burroughs, 62 App.D.C. 163, 65 F.2d 796 (1933), affirmed, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). This case upheld the constitutionality of the statute.

      . Complaint, supra note 10, at ¶¶ 21 through 26.

      . Id. at ¶ 40.

      . Id. at ¶ 43.

      . Id. at ¶¶ 44 & 45. In addition the complaint requested that the court require the defendants to make regular reports to the court on the investigations and prosecutions undertaken to enforce the FCPA. Id. at ¶ 46. In the alternative, plaintiffs sought court appointment of special prosecutors to enforce the statute. Id. at ¶ 47.

      . Nader v. Kleindienst, supra note 3, Memorandum and Order at 11.

      . Id.

      . The federal courts have customarily refused to order prosecution of particular individuals at the instance of private persons. E. g., Inmates of Attica Correctional Facility v. Rockefeller, 2 Cir., 477 F.2d 375 (1973); Peek v. Mitchell, 6 Cir., 419 F.2d 575 (1970); Newman v. United States, 127 U.S.App.U.C. 203, 382 F.2d 479 (1967); Smith v. United States, 5 Cir., 375 F.2d 243, cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Powell v. Katzenbach, 123 U.S.App.U.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966); United States v. Cox, 5 Cir., 342 F.2d 167, cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965): Moses v. Kennedy, D.U.C., 219 F.Supp. 762 (1963), affirmed, 119 U.S.App.U.C. 352, 342 F.2d 931 (1965); Parker v. Kennedy, S.D.N.Y., 212 F.Supp. 594 (1963); Pugach v. Klein, S.D.N.Y., 193 F.Supp. 630 (1961); Milliken v. Stone, S.D.N.Y., 7 F.2d 397 (1925), affirmed, 2 Cir., 16 F.2d 981, cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); United States v. Woody, D.Mont., 2 F.2d 262 (1924). To mandamus a particular prosecution, a court would have to determine that no legitimate consideration informed the prosecutor’s decision not to . prosecute the individual in question. Such a determination would normally be very difficult, for a prosecutor may lawfully take account of many factors other than probable cause 'in making such decisions. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Inmates of Attica Correction Facility v. Rockefeller, supra, 477 F.2d at 380; Newman v. United States, supra, 127 U.S.App.U.C. at 264-265, 382 F.2d at 480-481; Smith v. United States, supra, 375 F.2d at 247; Pugach v. Klein, supra, 193 F.Supp. at 634-635. That the balancing of these permissible factors in individual cases' is an executive, rather than a judicial, function follows from the need to keep the courts as neutral arbiters in the criminal law generally, see In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), and Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), and from Art. II, § 3 of the Constitution, which charges the President to “take Care that the Laws be faithfully executed,” see Inmates of Attica Correctional Facility v. Rockefeller, supra, 477 F.2d at 379-380; Newman v. United States, supra, 127 U.S. App.U.C. at 264 & 266, 382 F.2d at 480 & 482; United States v. Cox, supra, 342 F.2d at 171; Goldberg v. Hoffman, 7 Cir., 225 F.2d 463, 465 (1955).

      . The Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” Art. II, § 3, applies to all laws, not merely to criminal statutes, see In re Neagle, 135 U.S. 1, 63-64, 10 S.Ct. 658, 34 L.Ed. 55 (1890). It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review. See National Railroad Passenger Corp. v. National Assn of Railroad Passengers, 414 U.S. 453, 465, 94 S.Ct. 690, 38 L.Ed.2d. 690 (1974) (Mr. Justice Brennan, concurring); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1868); Newman v. United States, supra note 18, 127 U.S.App.D.C. at 266, 382 F.2d at 482 (Chief Judge Bazelon, concurring); Powell v. Katzenbach, supra note 18, 123 U.S.App.D.C. at 251, 359 F.2d at 235. The law has long recognized the distinction between judicial usurpation of discretionary authority and judicial review of the statutory and constitutional limits to that authority. See McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 95 L.Ed. 173 (1950); Perkins v. Elg, 307 U.S. 325, 349-350, 59 S.Ct. 884, 83 L.Ed. 1320 (1939); Medical Committee for Human Rights v. SEC, 139 U.S.App.D.C. 226, 242, 432 F.2d 659, 675 (1970), vacated and remanded for dismissal on grounds of mootness, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 2 Cir., 403 F.2d 371, 374 (1968), cert. denied, 394 U.S. 929, 89 S.Ct 1195, 22 L.Ed.2d 460 (1969). Judicial review of the latter sort is normally available unless Congress has expressly withdrawn it. Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 395-396, 428 F.2d 1093, 1097-1098 (1970).
      [T]he decisions of this court have never allowed the phrase “prosecutorial idiscretion” to be treated as "a magical incantation which automatically provides a shield for arbitrariness.
      Medical Committee for Human Rights v. SEC, supra, 139 U.S.App.D.C. at 240, 432 F.2d at 673. See generally Note, The Special Prosecutor in the Federal System: A proposal, 11 Am.Crim.L.Rev. 577 (1973); K. Davis, Discretionary Justice (1969).

      . Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Assn of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

      . Assn of Data Processing Service Organizations v. Camp, supra note 20, 397 U.S. at 153, 90 S.Ct. 827, 25 L.Ed.2d 184.

      . Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

      . Plaintiff Nader, as a voter, has indisputably suffered this injury. He is associated with the plaintiff corporation. We need not explore whether the corporation as a distinct entity suffered a judicially cognizable injury from the absence of campaign information. See generally Sierra Club v. Morton, supra note 20.

      . Appellees concede that providing campaign information to voters was an important objective of the 1925 legislation.

      . Our analysis might be different if Congress had conferred on persons such as plaintiffs the power to challenge in the courts the Justice Department’s policies in enforcing the FCPA. See Linda R. S. v. Richard D., 410 U.S. 614, 617 & n. 3, 93 S.Ct. 614, 35 L.Ed.2d 536 (1973).

      . Cf. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

      . In Linda R. S., the mother of an illegitimate child sued to enjoin “discriminatory application” by Texas law enforcement authorities of a state statute imposing criminal liability for breach of child support duties. The authorities enforced the statute only against fathers of legitimate children, which practice the plaintiff alleged to be in violation of the Equal Protection Clause. The Court held “that, in .the unique context of a challenge to a criminal statute appellant has failed to allege a sufficient nexus between her injury and the government action which she attacks to justify judicial intervention.” Linda R. S. v. Richard D., supra note 25, 410 U.S. at 617-618. In a broad dictum the Court stated “that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonproseeution of another.” Id. at 619. But this dictum should probably be read against the factual backdrop of the case. The plaintiff was interested in having the father of her child punished. Thus her com- ■ plaint in effect sought a judicial order compelling prosecution of a particular individual,a practice shunned by American courts. Bee notes 18 & 19 supra. As the Court emphasized, it was this focus on prosecution of a particular individual that destroyed the “logical nexus” necessary for standing :
      Thus, if appellant were granted the requested relief, it would result only in the jailing of the child’s father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative.

        Id. at 618. In finding “only speculative” the possibility that a particular person once jailed will pay child support aftei his release, the Court did not necessarily classify as speculative the possibility that improved enforcement of a statute would increase compliance by the generality of those subject to it. Thus one injured by a general noncompliance, rather than by the noncompliance of a particular individual, might still have standing to challenge the deficient enforcement policy responsible for the noncompliance.
      Also, the Court in Linda R% B. was careful to note that the law enforcement policy there challenged could be adequately tested in the courts by yan Equal Protection “defense” to a prosecution charging the father of a legitimate child with nonsupport. Id. at 619 n. 5. No, such alternate remedy exists where the policy under challenge is one of bringing absolutely no prosecutions.

      . See Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973).

      . The PECA requires reports concerning all federal elections and nominating conventions, not just general elections. 2 U.S.C. §§ 431(a) & 437. The new Act expands -the definition of political committees to include any organization receiving contributions or making expenditures exceeding $1,000 a year, 2 U.S.C. § 431(d), but particularized. accounting is necessary only for contributions and expenditures over $100. The new Act expressly imposes supervisory responsibilities on the Secretary of the Senate, the Clerk of the House, and, for presidential elections, the Comptroller General of the United States, 2 U.S.C. §§ 431(g) & 438. Provision is made for private persons to file complaints with these officials, and when these officials believe a violation has occurred, the Attorney General “shall” bring suit to enjoin it, 2 U.S.C. § 438(d). Finally, the new Act reduces criminal penalties for all violations to maximum fines of $1,000 and/or imprisonment for not more than one year, 2 U.S.C. § 441.

      . This is not to say the plaintiffs are without standing to challenge policies adopted by the Justice Department to enforce the FECA, or that the policies followed with respect to the FCPA would be irrelevant to an assessment of the merits of such a challenge. Consideration of these issues must await another case.

      . Standing is an element of a litigation’s status as a “case or controversy” under Article III of the Constitution, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Though present at the time a complaint is filed, such status may nonetheless be lost by force of subsequent events. See Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974); Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972); Medical Committee for Human Rights v. SEC, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed. 560 (1972).