JOHN R. BLOCK, SECRETARY OF AGRICULTURE, AND UNITED STATES
DEPARTMENT OF AGRICULTURE, PETITIONERS V. COMMUNITY NUTRITION
INSTITUTE, ET AL.

   No. 83-458

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   In addition to the parties shown by the caption, Deborah Harrell,
Ralph Desmarais, Zy Weinberg, and Joseph Oberweis were plaintiffs in
the district court and appellants in the court of appeals, and are
respondents here.  The National Milk Producers Federation, the
Associated Milk Producers, Inc., and the Central Milk Producers
Cooperative were granted leave to intervene as defendants in the
district court, appeared as appellees in the court of appeals, and,
pursuant to Rule 19.6 of the Rules of this Court, are respondents in
this Court.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument:
      I. Ultimate consumers of agricultural products, who have
          only indirect and derivative interests in the AMAA's
          regulation of handlers, may not seek judicial review of
          agricultural market orders
          A. Consumer suits brought under the Administrative
             Procedure Act are precluded by the AMAA
             1. Introduction
             2. The AMAA establishes a special statutory
                 review proceeding available only to handlers
             3. Sound policy reasons support the conclusion
                 that Congress intended the statutory scheme
                 for administrative and judicial review to be
                 exclusive
             4. Consumer attacks on market orders would
                 effectively obliterate Congress's carefully
                 balanced scheme for their review and
                 enforcement
             5. Consumers' indirect interests may be
                 adequately protected through handler-initiated
                 review proceedings brought under 7 U.S.C.
                 608c(15)
          B. The rationale for inferring a right of judicial
             review at the behest of producers, the direct
             beneficiaries of the AMAA, does not extend to
             ultimate consumers
      II. Respondents fail to satisfy the constitutional and
          prudential requirements of the standing doctrine
          A. Repondents' interest in a lower price for one
          type of fluid milk is outside the zone of interests
          protected by the AMAA
          B. Respondents cannot demonstrate injury in fact
             caused by any fluctuation in milk supplies
          C. Respondents are attempting to litigate a generalized
             grievance more appropriately addressed by Congress
          D. Respondents cannot demonstrate that their injury,
             if any, is redressable by a court
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-44a) is reported
at 698 F.2d 1239.  The opinion of the district court (Pet. App.
53a-67a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 45a-46a) was
entered on January 21, 1983.  A petition for rehearing was denied on
April 19, 1983 (Pet. App. 50a).  /1/ On July 8, 1983, the Chief
Justice extended the time for filing a petition for a writ of
certiorari to and including September 16, 1983.  The petition was
filed on that date and was granted on November 28, 1983 (J.A. 82).
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The relevant provisions of the Agricultural Marketing Agreement Act
of 1937, 7 U.S.C. 601 et seq., are set forth at Pet. App. 69a-95a.

                          QUESTIONS PRESENTED

   The Agricultural Marketing Agreement Act of 1937 provides that a
handler regulated by a market order issued pursuant to the Act may
challenge that order in an administrative proceeding before the
Secretary of Agriculture (7 U.S.C. 608c(15)(A)).  The Act further
provides that if a handler is dissatisfied with the Secretary's
decision, he may then obtain judicial review of that decision in the
appropriate federal district court (7 U.S.C. 608c(15)(B)).  The
questions presented are:

   1. Whether this statutory scheme for reviewing market orders
precludes judicial review of milk market orders at the behest of
ultimate consumers of milk products, who are neither regulated
handlers granted a right of review by statute, nor producers, the
direct beneficiaries of the market orders.

   2. Whether ultimate consumers of milk products, who assert
interests that are either antithetical to the interests Congress
sought to promote in the Act or are not implicated by the market
orders challenged in this litigation, lack standing to maintain this
lawsuit.

                               STATEMENT

   This case arises out of the federal regulation of the milk industry
through the use of market orders, each of which consists of a series
of complex regulations establishing the minimum prices handlers must
pay for farmers' milk in a given geographic region.  The market orders
are issued by the Secretary of Agriculture under authority of the
Agricultural Marketing Agreement Act of 1937 (AMAA), 7 U.S.C. 601 et
seq.  The issue in this case is the propriety of a challenge to milk
market orders by unregulated ultimate consumers of milk products who
are nowhere included in the statutory scheme for administrative and
judicial review of market orders and whose asserted interests are
antithetical to the interests Congress sought to promote in the
statute.

   1. a. Section 8c of the AMAA, 7 U.S.C. 608C, authorizes the
regulation of numerous agricultural commodities and products,
including milk.  /2/ One of Congress's primary purposes in enacting
the AMAA was to end destructive price competition in the dairy
industry, the structure of which "is so eccentric that economic
controls have been found at once necessary and difficult." H.P. Hood &
Sons, Inc. v. DuMond, 336 U.S. 525, 529 (1949).

   The ruinous competition among dairy farmers that concerned Congress
centered on fluid milk sales because such sales bring higher prices
than do sales of milk for "surplus" use, i.e., use in manufacturing
butter, cheese, and other milk products.  See Zuber v. Allen, 396 U.S.
168, 172-176 (1969);  United States v. Rock Royal Co-operative, Inc.,
307 U.S. 533, 548-550 (1939);  Nebbia v. New York, 291 U.S. 502,
515-518, 530 (1934).  /3/ One of the principal tools Congress used to
end farmers' counterproductive competition for fluid milk sales and to
guard against its recurrence was the market order system authorized by
7 U.S.C. 608c.  The "essential purpose of (the market orders
regulating commodities is) to raise producer prices." S. Rep. 1011,
74th Cong., 1st Sess. 3 (1935).  With respect to milk, such orders
provide a method by which the benefits of the desirable fluid milk
market and the burdens of the surplus milk market are fairly and
proportionally shared among all dairy farmers supplying a given
market.  See Nebbia v. New York, 291 U.S. at 517-518.

   Under the authority of the Act, 45 milk market orders are currently
in effect, each encompassing a different region of the country and
collectively including most of the nation (see 7 C.F.R. Pts.
1001-1139).  /4/ Through these orders, the federal government
regulates the handling and pricing of nearly 70% of all milk produced
in the United States and more than 80% of all Grade A milk
(Agricultural Marketing Service, U.S. Dep't of Agriculture,
Statistical Bulletin No. 698, Federal Milk Order Statistics -- 1982
Summary, at 16).  Grade B milk, which cannot be sold for drinking
purposes, is not regulated under federal orders (see 45 Fed. Reg.
75958 (1980)).  The market orders establish minimum prices that
handlers (those who process the raw milk) must pay to producers (dairy
farmers).  Farmers are free to bargain competitively for prices higher
than the market order minimums, and the orders do not regulate the
retail price of milk.

   The order prices are determined according to a classification
system based on the end use to which handlers put the raw milk.  See 7
U.S.C. 608c(5)(A);  44 Fed. Reg. 65990 (1979).  If the milk is used in
hard manufactured products such as cheese, butter, dry whole milk, or
nonfat dry milk, a handler pays at least the Class II minimum price
(ibid.).  /5/ This Class II minimum price changes monthly and equals
the average price paid for unregulated, Grade B milk in the most
productive dairy regions of the country (45 Fed. Reg. 75958-75959
(1980)).  For milk used as fluid milk, a handler pays the higher,
Class I minimum price (44 Fed. Reg. 65990 (1979)).  The Class I
minimum price varies in each order area, but reflects transportation
costs plus a premium over the Class II price of 90 cents per 100
pounds of milk (45 Fed. Reg. 75959 (1980)).  Under all but three of
the market orders, all handlers' minimum price payments for regulated
milk used in the different classes are pooled, and farmers are paid
from the pool on the basis of the weighted average price received for
milk in all uses -- the "blend price" (ibid.).  Thus, handlers pay "in
accordance with the form in which or the purpose for which (milk) is
used," as required by 7 U.S.C. 608c(5)(A);  farmers, on the other
hand, receive a uniform, blend price, "irrespective of the uses made
of such milk," as required by 7 U.S.C. 608c(5)(B)(ii).  These
statutory and regulatory mechanisms create and maintain orderly
marketing conditions by permitting all farmers to share in the
benefits of the desirable fluid market and equalizing the burdens of
the surplus market.

   b. Reconstituted or recombined milk is manufactured by mixing milk
powder with water.  See 44 Fed. Reg. 65990 (1979).  Consumers can
purchase milk powder and reconstitute it themselves.  Such
consumer-reconstituted milk is not the subject of this litigation.
Instead, respondents brought this action to challenge the market order
regulation of milk powder that a handler reconstitutes into fluid
milk.

   Since 1964, the Secretary has treated handler reconstituted fluid
milk as a Class I product in order to ensure the integrity of the end
use classification system.  See 29 Fed. Reg. 9010 (1964).  The
Secretary reconsidered the issue in 1968 and again determined that
regulation of reconstituted milk was required to assure uniform and
adequate minimum prices and to prevent the recurrence of destructive
competition among farmers.  The Secretary explained (34 Fed. Reg.
16883 (1969)):

         Primarily the problem relates to the conversion by a handler
      of a product, such as nonfat dry milk, normally priced as a
      surplus use into another product for Class I use.  In addition,
      the possible entrance into the market of reconstituted products
      from unregulated sources enlarges the problem.

         The potential of these conditions for disruptive influence on
      the market for producer milk is extremely serious because
      disposition of a product for a Class I use but pricing it in a
      surplus price class undermines the classified pricing system.

                      * * * * *

         The objectives of classified pricing are uniformity of
      pricing according to form or use and providing an adequate
      return to producers for the fluid market.  Therefore, the
      widespread disposition of filled milk made from reconstituted
      skim milk, if the skim milk were not subject to some
      "equalizing" payment, could lead to total defeat of such
      objectives.  Certainly, the classification and pricing plan
      should protect the Class I market from the potential effects of
      competition with products produced from the market's own surplus
      or similar products produced elsewhere at a manufacturing price
      when used in filled milk.

                      * * * * *

         In this case payment to the producer-settlement fund at the
      difference between the Class I price and surplus price is
      necessary not only to assure competitive equity among handlers
      but also to insure the integrity of the classified pricing
      system as a means of assuring reasonable prices to producers.

   Accordingly, each of the regional market orders defines
reconstituted milk that is used for drinking purposes as "fluid milk,"
thereby including it in Class I (see 44 Fed. Reg. 65990 (1979)).
Under this system, handlers pay at least the minimum Class I price for
all milk products used for fluid consumption.  In part, this pricing
system is accomplished through a series of assumptions and adjustments
known as "down allocations" and "compensatory payments" (see 45 Fed.
Reg. 75956-75957 (1980);  Pet. App. 4a-5a), all of which operate to
ensure that handlers pay producers according to the end use to which
the producers' milk is put by the handlers (see J.A. 45).  The net
effect is that handlers who reconstitute dried milk into fluid milk
may be required to make a "compensatory payment," equal to the
difference between the Class I and Class II prices, into a pool for
distribution to producers.  It is this compensatory payment to which
respondents object, contending that it makes reconstituted milk
uneconomical for handlers to produce (see Br. in Opp. 6-7).

   2. The Secretary issues a market order only after rulemaking
proceedings that include public notice and the opportunity for a
hearing (7 U.S.C. 608c(3) and (4)).  The evidence introduced at the
hearing must show "that the issuance of such (proposed) order and all
of the terms and conditions thereof will tend to effectuate the
declared policy of this chapter with respect to such commodity" (7
U.S.C. 608c(4)).  But before a milk market order can become effective,
it must be approved by the handlers of at least 50% of the volume of
milk covered by the proposed order and a least two-thirds of the dairy
producers in the affected region (7 U.S.C. 608c(8), 608c(5)(B)(i)).
If the handlers withhold consent, the Secretary may nevertheless
impose the order if he determines that it is "the only practical means
of advancing the interests of the producers" and at least two-thirds
of the producers consent (7 U.S.C 608c(9)(B)).  An order may be
terminated by the Secretary (7 U.S.C. 608c(16)(A)) or by a majority of
the producers in an order area (7 U.S.C. 608c(16)(B)).

   Because this statutory scheme gives handlers considerably less
control than producers over the adoption and retention of market
orders, the Act expressly provides for administrative and judicial
review of market orders at the behest of handlers.  Specifically, 7
U.S.C. 608c(15)(A) provides that "(a)ny handler subject to an order
may file a written petition with the Secretary of Agriculture, stating
that any such order or any provision of any such order or any
obligation imposed in connection therewith is not in accordance with
law and praying for a modification thereof or to be exempted
therefrom." If dissatisfied with the Secretary's ruling on the
administrative petition, the handler may seek judicial review of "such
ruling" in the appropriate district court (7 U.S.C. 608c(15)(B)).  The
Act contains no other provisions for the review of market orders.  The
pendency of handler-initiated administrative or judicial review
proceedings may not "impede, hinder, or delay" the government from
obtaining relief in an enforcement action brought under 7 U.S.C.
608a(6) (7 U.S.C. 608c(15)(B)).

   3. In December 1980, respondents /6/ commenced this action in the
United States District Court for the District of Columbia, seeking a
declaration that all of the milk market orders, insofar as they apply
to reconstituted milk products and milk powder used to make
reconstituted milk products, are invalid, and an injunction
prohibiting petitioners from "implementing" the regulations (which
have been in effect since 1964) (J.A. 20).  The plaintiffs, who
included three individual consumers of fluid dairy products, sought to
have the Secretary amend the milk market orders so that reconstituted
milk would no longer be deemed a Class I product even if a handler
used it as fluid milk.  /7/ In their complaint, the individual
consumers alleged that "(t)he existing regulations have denied them
the opportunity to purchase a lower price reconstituted milk product
in lieu of raw fluid milk" (J.A. 12).  /8/ Joseph Oberweis, a handler
regulated by one of the market orders, and the Community Nutrition
Institute, a self-described "nonprofit charitable organization" (J.A.
11), joined the individual consumers as plaintiffs.

   Ruling on cross-motions for summary judgment, the district court
dismissed the complaint for lack of jurisdiction (Pet. App. 53a-67a).
Citing Rasmussen v. Hardin, 461 F.2d 595, 599 (9th Cir.), cert.
denied, 409 U.S. 933 (1972), and Suntex Dairy v. Bergland, 591 F.2d
1063, 1067 n.3 (5th Cir. 1979), the district court concluded that
Congress intended to preclude ultimate consumers from seeking judicial
review of milk market orders (Pet. App. 65a-66a).  The district court
also held that the consumers lacked standing because, even if the
regulations were changed, too many other variables could affect the
retail prices paid by consumers for reconstituted milk;  thus, the
court concluded that "any benefit to the (consumer) plaintiffs from
the proposed changes in the regulations is (too) hypothetical and
speculative" to confer standing (id. at 61a).  In addition, the
district court concluded that the interest asserted by the consumers
-- lower prices for one type of fluid milk -- was outside the zone of
interests protected by the AMAA.  The relevant provisions of the
statute, the court noted, were intended to protect consumers only
against rapid or excessive price increases and against prices above
the parity level (id. at 62a-64a).  Because those interests were not
implicated in this case, the court held that the statute did not
confer standing on these consumers (id. at 64a).  Finally, the
district court dismissed the milk handler because he had failed to
exhaust his administrative remedies under 7 U.S.C. 608c(15) (Pet. App.
66a-67a).

   4. A divided panel of the court of appeals affirmed in part and
reversed in part, and remanded the case for a decision on the merits.
The court of appeals agreed with the district court's dismissal of the
milk handler and the nutrition organization (Pet. App. 27a-33a).  The
court of appeals held, however, that the district court had erred in
dismissing the complaint of the individual consumers (id. at 12a-26a).

   With respect to preclusion of review, the court of appeals declined
to follow Rasmussen v. Hardin, supra, concluding that the Ninth
Circuit's analysis of the statutory structure of the AMAA and its
purposes did not reveal "the type of clear and convincing evidence of
congressional intent needed to overcome the presumption in favor of
judicial review" (Pet. App. 27a n.75).  As for standing, the court
concluded that the individual consumers had satisfactorily alleged
injury in fact by claiming that the regulations deprive them of a
lower priced alternative to whole milk and that the absence of
manufacturer reconstituted milk results in seasonal shortages in the
milk supply (id. at 14a).  The court repeatedly questioned whether the
consumers' allegations of injury and redressability were capable of
proof, but it concluded that they were sufficient to require a trial
on the merits (id. at 14a, 16a, 17a-19a).

   The court of appeals also held that the concerns of the individual
consumers in this case were within the zone of interests protected by
the AMAA.  The court of appeals rejected the district court's reliance
on the AMAA's legislative history to determine the zone of interests
arguably protected by the statute, concluding that plaintiffs are
"only required to assert an interest 'which is arguable from the face
of the statute'" (Pet. App. 22a (emphasis in original), quoting Tax
Analysts & Advocates v. Blumenthal, 566 F.2d 130, 142 (D.C. Cir.
1977), cert. denied, 434 U.S. 1086 (1978)), and that the individual
consumers "have clearly done this much" (Pet. App. 22a).  Thus, the
court of appeals not only chastised the district court for "examining
the legislative history in great detail" (id. at 23a), but in fact
declined to examine it at all.  Finally, while noting that the
individual consumers' asserted injury "is shared by many other
persons, i.e., every other cost-conscious consumer of milk" (id. at
25a), the court of appeals ruled that the consumers' claim was not
barred as a generalized grievance (id. at 25a-26a).

   Judge Scalia dissented in part.  Judge Scalia concurred in the
court of appeals' dismissal of the organizational plaintiff and the
handler but concluded that the individual consumers lacked standing,
and accordingly he would have affirmed the judgment of the district
court in its entirety (Pet. App. 35a-44a).  In his view, the
consumers' interests fall outside the zone of interests arguably
protected by the AMAA.  Judge Scalia placed considerable weight on the
fact that the individual consumers are "indirect general
beneficiaries" of the AMAA (id. at 38a) and observed that "where there
is a direct and immediate beneficiary class which can be relied upon
to challenge agency disregard of the law, the claim of the indirect
general beneficiaries to be congressionally designated 'private
attorneys general' is weak indeed" (ibid.).  As applied to this case,
Judge Scalia thus reasoned that (id. at 38a-39a):

      The direct beneficiaries of milk marketing orders under the
      Agricultural Marketing Agreement Act (AMAA) are milk producers.
      * * * On the other side of the ledger, the direct beneficiaries
      of any limitations upon the Secretary's authority with regard to
      milk marketing orders are the milk handlers who pay the
      artificially established prices.  * * * In such a situation,
      where the narrow class immediately affected by both agency
      excess and agency omission is readily identifiable, I do not
      believe that a more remote beneficiary class as generalized as
      the one here (viz, all consumers of fluid milk products -- which
      cannot exclude many of the nation's households) can be found to
      meet the zone of interests test.

                          SUMMARY OF ARGUMENT

   I. Respondents brought this action under the general judicial
review provisions of the Administrative Procedure Act, 5 U.S.C. 701 et
seq.  APA review is unavailable, however, when the relevant statute
precludes judicial review.  5 U.S.C. 701(a)(1).  Preclusion may be
inferred from a statute's language, purposes, and legislative history.
 See, e.g., Morris v. Gressette, 432 U.S. 491, 501 (1977);  Barlow v.
Collins, 397 U.S. 159, 166-167 (1970).

   The Agricultural Marketing Agreement Act of 1937 provides a
detailed and specific procedure for administrative and judicial review
that is available only at the behest of handlers, the parties directly
regulated by the market order provisions and thus the parties best
situated to litigate any claim of agency excess.  The legislative
history demonstrates that the statutory scheme was carefully designed
to balance the competing interests of handlers in having an avenue for
the redress of grievances with the government's interest in
uninterrupted functioning of the regulatory program.  Moreover, the
legislative scheme, by requiring initial presentation of handlers'
challenges to the Secretary of Agriculture, ensures that the courts
will have the benefit of the Secretary's expertise in adjudicating
claims arising in the context of this complex regulatory statute.  See
United States v. Ruzicka, 329 U.S. 287, 294 (1946).

   Consumer suits would effectively nullify Congress's direction that
the remedy for any handler's grievance "in the first instance must be
sought from the Secretary of Agriculture" (United States v. Ruzicka,
329 U.S. at 294).  Consumer suits would enable handlers to evade the
administrative exhaustion requirement by resort to consumer
"front-men";  indeed, this case vividly illustrates the potential for
such abuse of the legislative scheme.  Respondent Oberweis was
dismissed for failure to exhaust his administrative remedies as a
handler (Pet. App. 31a-33a).  Yet if the consumers' suit sanctioned by
the court of appeals were to proceed, Oberweis would still have his
claims adjudicated without first invoking the administrative process.
Since all handlers are consumers or are ultimately owned or operated
by consumers, allowing consumer suits would destroy Congress's
carefully balanced scheme for administrative and judicial review.

   There is no reason to visit such disruption upon the legislative
scheme, because the interests of consumers are entirely derivative of
the interests of handlers and can be protected in handler-initiated
review proceedings brought under 7 U.S.C. 608c(15).  Thus, the
rationale for the usual presumption in favor of reviewability --
ensuring a mechanism for realization of the statutory objectives -- is
absent here, because the issue is not whether judicial review is
entirely foreclosed, but instead whether review at the behest of a
particular plaintiff is precluded.  See, e.g., Associated General
Contractors of California, Inc. v. California State Council of
Carpenters, No. 81-334 (Feb. 22, 1983), slip op. 23.  When Congress
has provided a comprehensive scheme for administrative and judicial
review that affords an opportunity for complete resolution of a
controversy, the courts should be chary of fashioning additional
remedies.  See, e.g., National Railroad Passenger Corp. v. National
Association of Railroad Passengers, 414 U.S. 453, 458 (1974).

   Finally, the interests of consumers are totally different from the
"definite personal rights" of producers, rights that are "not
possessed by the people generally." Stark v. Wickard, 321 U.S. 288,
304, 309 (1944) (footnote omitted).  Accordingly, there is no
justification for extending Stark's rationale for producer-initiated
suits to consumer suits.  Producers are the primary beneficiaries of
the AMAA, and their interests are generally antagonistic to those of
handlers.  Unlike consumers, therefore, producers cannot rely on the
parties regulated by the statute to protect their interests, and
allowing them to maintain their own suits does no violence to the
Act's purposes.

   II. Closely related to the question of preclusion of review is the
court of appeals' erroneous conclusion that the individual consumers
adequately demonstrated their standing to maintain this action.  Of
course, if the Court agrees with our submission that Congress intended
to preclude all consumers from seeking judicial review of market
orders, it need not reach the issue of respondents' standing.  But, at
minimum, examination of the language and legislative history of the
AMAA clearly indicates that Congress did not intend to protect the
interests asserted by the individual consumers in this litigation.  In
addition, respondents failed to demonstrate injury-in-fact, they are
attempting to litigate a generalized grievance shared by virtually
every household in the nation, and it is entirely speculative whether
any injury they might have suffered is redressable by a court.

   A. Respondents' interest in lower prices for reconstituted milk is
inconsistent with Congress's primary purpose in enacting the market
order provision of the AMAA (7 U.S.C. 608c) -- "to raise producer
prices." S. Rep. 1011, supra, at 3 (emphasis added).  The court of
appeals nevertheless held that respondents' claim falls within the
zone of interests to be protected by the AMAA because two policy
provisions of the Act mention consumers (7 U.S.C. 602(2) and (4)).
But the court failed to analyze the purpose of these provisions;  and
examination of their structure in light of the Act as a whole, coupled
with analysis of the legislative history (which the court of appeals
refused even to consider), demonstrates that Congress intended to
protect consumers only against unwarrantably rapid or excessive price
increases above the parity level.  That limited protection for
consumers is not implicated in this case, while the interest that
respondents do assert is contrary to Congress's intent.

   B. In addition to their interest in lower prices, respondents
alleged that the challenged market order provisions cause them injury
by depriving them of a "stabilizing market influence" that could
operate to offset seasonal fluctuations in the supply of regular fluid
milk.  This assertion, however, fails to meet the
constitutionally-required showing of injury in fact because
respondents did not allege that they or any other consumers have ever
been or are likely to be subjected to shortages in fluid milk supplies
due to seasonal variations in milk production.  This is a fatal
defect.  See Warth v. Seldin, 422 U.S. 490, 498-499, 504 (1975).
Moreover, any such allegation would be untenable because a number of
regulatory mechanisms operate to prevent seasonal fluctuations in milk
production from ever affecting ultimate consumers.  Thus, there is no
experience within general knowledge or subject to judicial notice of a
shortage of milk at the consumer level.

   C. Respondents are seeking to litigate interests shared by
virtually every household in the nation, a class larger than that of
all taxpayers.  Such a generalized grievance is "most appropriately
addressed in the representative branches" (Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 475 (1982)), particularly when the grievance is not only
pervasively shared but is also entirely derivative of the direct
interests of handlers, for whom Congress has provided an express right
of administrative and judicial review.

   D. Finally, it is entirely speculative whether the interests
respondents seek to advance are redressable by a favorable judicial
decision.  The retail prices paid by consumers are not regulated and
may bear only a marginal relationship to the prices farmers receive
for their milk.  Moreover, there is no indication that any reduction
in handlers' costs would be passed on to consumers.  Nor could a
judicial decision in this case have any effect on the many intervening
factors between market order pricing provisions and the ultimate
availability of reconstituted fluid milk that are essential to a
showing of the redressability of respondents' grievance.

                               ARGUMENT

 I. ULTIMATE CONSUMERS OF AGRICULTURAL PRODUCTS, WHO HAVE ONLY
INDIRECT AND DERIVATIVE INTERESTS IN THE AMAA'S REGULATION OF
HANDLERS, MAY NOT SEEK JUDICIAL REVIEW OF AGRICULTURAL MARKET ORDERS

 A. Consumer Suits Brought Under The Administrative Procedure Act Are
Precluded By The AMAA

   1. Introduction.  Respondents brought this action for review of the
market order provisions regulating reconstituted milk under the
Administrative Procedure Act, 5 U.S.C. 701 et seq. (see J.A. 11;  Br.
in Opp. 12 n.16, 15).  That Act confers a general right of judicial
review upon persons "adversely affected or aggrieved by agency action
within the meaning of a relevant statute" (5 U.S.C. 702), but only to
the extent that the relevant statute does not preclude judicial review
(5 U.S.C. 701(a)(1)).  Whether or to what extent a particular statute
precludes judicial review is determined not only from its express
language, but also from its purpose and legislative history.  See,
e.g., Morris v. Gressette, 432 U.S. 491, 501 (1977);  National
Railroad Passenger Corp. v. National Association of Railroad
Passengers, 414 U.S. 453, 457-458 (1974);  Barlow v. Collins, 397 U.S.
159, 166-167 (1970).  This is so because, as this Court has observed
in a case arising under the AMAA, "meaning, though not explicitly
stated in words, may be imbedded in a coherent scheme." United States
v. Ruzicka, 329 U.S. 287, 292 (1946).

   Moreover, "(a) frequently stated principle of statutory
construction is that when legislation expressly provides a particular
remedy or remedies, courts should not expand the coverage of the
statute to subsume other remedies." National Railroad Passenger Corp.,
414 U.S. at 458.  This principle is particularly apt in the context of
the present case, in which the interests respondents seek to assert
are merely derivative of the interests of handlers, the parties
regulated by the market order provisions in question and the parties
for whom Congress has established a "coherent scheme" (United States
v. Ruzicka, 329 U.S. at 292) that provides a complete mechanism for
thorough consideration of the issues respondents seek to litigate.
Thus, the rationale for the usual presumption in favor of
reviewability -- ensuring a mechanism for realization of the statutory
objectives (see Barlow v. Collins, 397 U.S. at 167) -- is totally
lacking in this case.  Here, preclusion of consumer suits does not
pose any threat to realization of the statutory objectives;  instead,
it means only that those objectives must be realized through
utilization of the specific remedies provided by Congress, and at the
behest of the parties directly affected by the statutory scheme.  Such
an approach is fully consistent with this Court's decisions.  See,
e.g., Associated General Contractors of California, Inc. v. California
State Council of Carpenters, No. 81-334 (Feb. 22, 1983), slip op. 23;
Morris v. Gressette, 432 U.S. at 505-507 & n.21;  Illinois Brick Co.
v. Illinois, 431 U.S. 720, 746 (1977);  Barlow v. Collins, 397 U.S. at
175 n.9 (Brennan, J., concurring and dissenting);  United States v.
Ruzicka, 329 U.S. at 293-294;  Switchmen's Union v. National Mediation
Board, 320 U.S. 297, 300-301 (1943).

   With these principles in mind, we demonstrate below that
congressional intent to preclude consumer attacks on market orders is
necessarily found in the AMAA's express provision for judicial review
only at the behest of handlers, the parties Congress intended to serve
as the direct representatives of the interests respondents assert in
this case.  This conclusion is reinforced by the disruptive effect
that unauthorized consumer actions would have on Congress's carefully
crafted scheme for the regulation of agricultural commodities under
the AMAA.

   2. The AMAA establishes a special statutory review proceeding
available only to handlers.  Judicial review of market orders issued
under the AMAA is, by the terms of the Act itself, available only to
handlers regulated by those orders.  /9/ The Act is explicit and
precise in specifying the procedures to be followed by handlers
challenging a market order.  First, pursuant to 7 U.S.C. 608c(15)(A),
a handler must file a written petition with the Secretary.  The
Secretary must then provide the handler with an opportunity for a
hearing, to be conducted in accordance with the Secretary's
regulations.  Those regulations (7 C.F.R. 900.50-900.71) provide that
handler petitions are to be resolved in formal, adjudicatory
proceedings before an administrative law judge (see Pet. App. 40a-44a
(Scalia, J., concurring and dissenting)).  At the conclusion of the
formal administrative proceedings, a handler may obtain judicial
review of the Secretary's ruling in any federal district court "in
which such handler is an inhabitant, or has his principal place of
business" (7 U.S.C. 608c(15)(B)).  The pendency of handler-initiated
review proceedings under 7 U.S.C. 608c(15) "shall not impede, hinder,
or delay" the Secretary of Agriculture from obtaining relief to
enforce his orders pursuant to 7 U.S.C. 608a(6) (7 U.S.C.
608c(15)(B)).

   Congress gave careful consideration to competing interests when it
drafted these provisions for administrative and judicial review at the
behest of handlers.  As originally enacted in 1933, the AAA contained
no provisions relating to administrative or judicial review
whatsoever.  When the AAA was amended in 1935, however, Congress added
the special review and enforcement provisions described above.  As
explained in the legislative history, these provisions were intended
to strike an appropriate balance between handlers' interests in having
an avenue for review and the government's interest in uninterrupted
functioning of the program (S. Rep. 1011, supra, at 14 (emphasis
added)):

         Specific provision is made for administrative and judicial
      review of orders.  No similar provision is contained in the
      present act.  * * *

         During the period while any such petition (for review of an
      order) is pending before the Secretary and until notice of the
      Secretary's ruling is given to the petitioner, the penalties
      imposed by the act for violation of an order cannot be imposed
      upon the petitioner if the court finds that the petition was
      filed in good faith and not for delay.  The Secretary may,
      nevertheless, during this period, proceed to obtain an
      injunction against the petitioner pursuant to section 8a(6) of
      the Agricultural Adjustment Act.  * * * It is believed that
      these provisions establish an equitable and expeditious
      procedure for testing the validity of orders, without hampering
      the Government's power to enforce compliance with their terms.

   The statutory review and enforcement provisions thus comprise a
complete and rounded scheme in which the interests of regulated
parties and the interests of the government are simultaneously
protected.  Given the obvious care taken by Congress in balancing
these competing interests, it could not have intended to sanction
additional remedies that would upset the statute's delicate balance.
See United States v. Erika, Inc., 456 U.S. 201, 208 (1982).

   3. Sound policy reasons support the conclusion that Congress
intended the statutory scheme for administrative and judicial review
to be exclusive.  Congress had sound reasons for concluding that
attacks on market orders should be considered by the Secretary in the
first instance.  The questions raised in such attacks are often
complex, and their resolution requires an intimate knowledge of the
economic and technical factors underlying the marketing of the various
agricultural products subject to regulation -- e.g., milk, nuts,
fruits, vegetables, and hops (7 U.S.C. 608c(2)).  The courts have
consistently recognized that the AMAA and the market orders issued
thereunder create a highly complex and labyrinthian regulatory scheme.
 See, e.g., Zuber v. Allen, 396 U.S. at 172;  Suntex Dairy v. Block,
666 F.2d 158, 166 (5th Cir. 1982), cert. denied, No. 81-2098 (Oct. 4,
1982);  Dairylea Cooperative, Inc. v. Butz, 504 F.2d 80, 82 (2d Cir.
1974);  Blair v. Freeman, 370 F.2d 229, 232 (D.C. Cir. 1966);
Queensboro Farms Products, Inc, v. Wickard, 137 F.2d 969, 975 (2d Cir.
1943).  It is thus not surprising that "(a) court's deference to
administrative expertise rises to zenith in connection with the
intricate complex of regulation of milk marketing" (Blair v. Freeman,
370 F.2d at 232);  as the court explained in Queensboro Farms
Products, Inc. v. Wickard, 137 F.2d at 975:

      The milk problem is so vast that fully to comprehend it would
      require an almost universal knowledge ranging from geology,
      biology, chemistry and medicine to the niceties of the
      legislative, judicial and administrative processes of
      government.  It affects an industry immense in scope, for
      dairying is said to be the largest single branch of agriculture
      in this country with the exception of that of raising livestock
      for slaughter, the annual money value of dairy products running
      to billions of dollars.

   Congress thus clearly understood that, before judicial intervention
is sought, these complex questions must be presented to the Secretary,
who possesses the requisite expertise to illuminate and resolve them.
/10/

   This Court recognized the importance of judicial deference to the
Secretary's expertise in United States v. Ruzicka, supra.  In
rejecting an attempt by a handler to attack for the first time the
validity of a milk market order as a defense to a judicial enforcement
proceeding brought by the Secretary, the Court stressed the purposes
of the statutory review provisions (329 U.S. at 294):

      Congress has provided a special procedure for ascertaining
      whether such an order is or is not in accordance with law.  The
      questions are not, or may not be, abstract questions of law.
      Even when they are formulated in constitutional terms, they are
      questions of law arising out of, or entwined with, factors that
      call for understanding of the milk industry.  And so Congress
      has provided that the remedy in the first instance must be
      sought from the Secretary of Agriculture.  It is on the basis of
      his rulings, and of the elucidation which he would presumably
      give to his ruling, that resort may be had to the courts.  /11/

   The importance of "elucidation" by an expert administrative body is
heightened by the vast scope of the regulatory program at issue.  The
Department of Agriculture advises us that the value of milk handled
under the various market orders exceeds an average of $1 billion each
month.  Moreover, it would seem that the court of appeals' ruling
would logically extend to market orders covering other agricultural
products.  In addition to the 45 milk market orders, there are at
present 47 market orders regulating such varied commodities as citrus
fruits, potatoes, pears, tomatoes, walnuts, dates, and hops.  See,
e.g., 7 C.F.R. Pts. 905, 910, 911, 931, 945, 965, 984, 987, and 991.
Approximately $6 billion worth of fruits, vegetables, and specialty
crops were handled under these orders in 1982.  Each order deals with
the peculiarities of the marketing of the specific commodity regulated
in the geographic region covered by the order.  The regulation of
these commodities is so complex that some orders require adjustments
to be made as often as once a week during the marketing season.  See,
e.g., 7 C.F.R. 907.51, 907.52.  The decision below would make the
federal courts, acting without benefit of the Secretary's expertise,
the arbiters of all the varied and complex regulatory issues that
arise under the orders, thereby raising the possibility that the
courts could inadvertently cause the very economic chaos that Congress
sought to remedy when it enacted the AMAA.  /12/ Such a result should
not be attributed to Congress absent clear and persuasive indication
that Congress actually intended it.  /13/

   In addition to the need for administrative expertise, Congress had
another reason for making the statutorily-prescribed handler review
provisions exclusive.  As this Court stressed in United States v.
Ruzicka, 329 U.S. at 293, Congress was equally concerned about the
disruptive potential of premature litigation:

      Failure by handlers to meet their obligations promptly would
      threaten the whole (regulatory) scheme.  Even temporary defaults
      by some handlers may work unfairness to others, encourage wider
      non-compliance, and engender those subtle forces of doubt and
      distrust which so readily dislocate delicate economic
      arrangements.  To make the vitality of the whole arrangement
      depend on the contingencies and inevitable delays of litigation,
      no matter how alertly pursued, is not a result to be attributed
      to Congress unless support for it is much more manifest than we
      here find.  That Congress avoided such hazards for its policy is
      persuasively indicated by the procedure it devised for the
      careful administrative and judicial consideration of a handler's
      grievance.

   Preventing handlers' litigious noncompliance with market orders is
essential to the operation of the program.  /14/ The Act explicitly
contemplates the application of market orders to handlers who have
disapproved them (see page 7, supra) and likely believe the orders to
be contrary to their interests;  indeed, the Department of Agriculture
advises us that handlers have not agreed to any milk market order
since 1941.  The importance Congress attached to the government's
ability to obtain compliance through enforcement actions even during
the pendency of handler-initiated challenges to market orders (7
U.S.C. 608c(15)(B)) is thus apparent.

   4. Consumer attacks on market orders would effectively obliterate
Congress's carefully balanced scheme for their review and enforcement.
 On only one occasion prior to the filing of this suit have consumers
attempted to challenge a market order, and that challenge was rejected
on precisely the grounds that we urge here.  In Rasmussen v. Hardin,
461 F.2d 595 (9th Cir.), cert. denied, 409 U.S. 933 (1972), the court
held that consumers of a filled milk product were precluded from
seeking review of milk market order provisions that effectively raised
the price of the product in the same manner that the market order
provisions at issue in this case may raise the price of manufacturer
reconstituted fluid milk.  The court held that "'clear and convincing
evidence'" of an intent to preclude review by consumers could be
"'inferred from (the statutory) purpose'" (id. at 599 (quoting Barlow
v. Collins, 397 U.S. at 166-167)).  The court went on to explain (461
F.2d at 599-600):

         The statute before us does more than provide for
      administrative and judicial review and name the affected class
      entitled to seek it.  Section 608a(6) provides for enforcement
      of the Secretary's orders.  And Section 608c(15)(B) provides
      that pendency of administrative or judicial review under that
      section "shall not impede, hinder, or delay the United States or
      the Secretary . . . from obtaining relief pursuant to section
      608a(6) . . . " It was this language that led the Court to hold,
      in Ruzicka, that grounds for attacking an order under Section
      608c(15) could not be raised in a Section 608a(6) proceeding.

                      * * * * *

         To grant consumers standing would be to say that, while
      Congress regarded it as imperative that a challenge by a handler
      who is directly regulated by a marketing order, first be
      considered by the Secretary, it was nevertheless the legislative
      judgment that if advanced by consumers, the same challenge did
      not require initial scrutiny by the administrative body.  There
      is no basis for attributing to Congress the intent to draw such
      a distinction.  Had Congress intended to allow consumers to
      attack provisions of a marketing order, it would have required
      them to pursue the administrative remedy provided in Section
      608c(15)(A).  By limiting the administrative remedy to handlers,
      Congress necessarily intended that the judicial remedy be
      similarly limited in scope.

   The Ninth Circuit also noted that consumer suits would be
particularly anomalous because they would enable handlers to evade the
statutory exhaustion requirement by latching on to consumer
"front-men." Rasmussen v. Hardin, 461 F.2d at 600.  This case vividly
demonstrates the potential for such abuse of the legislative scheme.
Respondent Oberweis, a handler, was dismissed for failure to exhaust
his administrative remedies (Pet. App. 31a-33a, 66a-67a).  But if the
court of appeals' decision to allow the individual consumers to
maintain this action stands, Oberweis will still have his claims
adjudicated without first invoking the administrative process.
Indeed, it would not be at all surprising if Oberweis were a
"cost-conscious consumer," as well as a milk handler, and the decision
below would appear to allow for amendment of the complaint to add
Oberweis in his new-found capacity as a consumer plaintiff.  Cf. Reade
v. Ewing, 205 F.2d 630, 631-632 (2d Cir. 1953).  Since even corporate
handlers are ultimately owned or operated by consumers, it is readily
apparent that the decision below effectively eviscerates the
congressionally-mandated restrictions on handlers' actions.  No
handler need ever again present his grievances to the Secretary even
though "Congress has provided that the remedy in the first instance
must be sought from the Secretary of Agriculture" (United States v.
Ruzicka, 329 U.S. at 294).  Moreover, consumers or consumer-handlers
could seek injunctions against the operation of market orders that
"impede, hinder, or delay" enforcement actions even though such
injunctions are expressly prohibited in proceedings properly
instituted under 7 U.S.C. 608c(15).  Thus, consumer suits would
effectively nullify Congress's intent, recognized by this Court in
Ruzicka (329 U.S. at 293-294 & n.3), to "establish an equitable and
expeditious procedure for testing the validity of orders, without
hampering the Government's power to enforce compliance with their
terms." S. Rep. 1011, supra, at 14.  It is therefore essential to the
legislative scheme that 7 U.S.C. 608c(15) remain the exclusive vehicle
for testing the validity of market order restrictions imposed on
handlers.  /15/

   This Court has expressly disapproved of analogous efforts to
frustrate carefully constructed congressional schemes for orderly
administrative and judicial review.  See, e.g., Bush v. Lucas, No.
81-469 (June 13, 1983), slip op. 21 (additional remedy against a
different defendant precluded where Congress has created "an elaborate
remedial system that has been constructed step by step, with careful
attention to conflicting policy considerations");  Northwest Airlines,
Inc. v. Transport Workers Union, 451 U.S. 77, 97 (1981) ("The
presumption that a remedy was deliberately omitted from a statute is
strongest when Congress has enacted a comprehensive legislative scheme
including an integrated system of procedures for enforcement");  Great
American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366,
375-376 (1979) ("If a violation of Title VII could be asserted through
Section 1985(3), * * * the complainant could completely bypass the
administrative process, which plays such a crucial role in the scheme
established by Congress in Title VII");  Brown v. GSA, 425 U.S. 820,
832-833 (1976) ("The balance, completeness, and structural integrity
of Section 717 are inconsistent with the petitioner's contention that
the judicial remedy afforded by Section 717(c) was designed merely to
supplement other putative judicial relief.  * * * Under the
petitioner's theory, by perverse operation of a type of Gresham's law,
Section 717, with its rigorous administrative exhaustion requirements
and time limitations, would be driven out of currency were immediate
access to the courts under other, less demanding statutes
permissible.").

   Sanctioning consumer suits under the APA frustrates the "careful
blend of administrative and judicial enforcement powers" (Brown v.
GSA, 425 U.S. at 833) in a "detailed and specific" statutory scheme
(Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 644
(1981)) that is "supervised by an expert administrative agency" (City
of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)).  Thus, judicial
review of market orders issued under the AMAA must be confined to
suits brought by handlers in accordance with 7 U.S.C. 608c(15).

   5. Consumers' indirect interests may be adequately protected
through handler-initiated review proceedings brought under 7 U.S.C.
608c(15).  The absence of a right of judicial review for consumers
does not mean that their interests (to the extent they are protected
by the AMAA at all (see pages 34-43, infra)) will go unprotected.
Instead, handlers are perfectly well situated to promote the indirect
interests of consumers in market orders at the same time that they
assert their own direct interests in regulations directly applicable
to themselves.  This Court has noted that handlers "seek only to
obtain reliabl(e supplies of) milk at the cheapest price." Zuber v.
Allen, 396 U.S. at 190.  That consumer interests are truly derivative
of handler interests -- consumers complain that they pay more because
handlers pay more -- is shown by the fact that handlers and consumers
asserted identical claims both in the instant case and in Rasmussen v.
Hardin, supra.  See Pet. App. 39a-40a (Scalia, J., concurring and
dissenting).  Whether handlers would pass on to consumers any cost
savings they might secure through a successful challenge to the market
order provisions in question is entirely speculative (see pages 46-49,
infra), but, in any event, consumers' interest in market orders is
limited to lowering the prices charged to handlers in the hope that
consumers will then reap some benefit at the retail level.  Thus, the
interests of handlers and consumers in market orders are, from the
standpoint of consumers, virtually identical.  /16/

   This identity of interests makes it unnecessary and inappropriate
to grant consumers a right of direct review.  See Associated General
Contractors of California, Inc., slip op. 23 (footnote omitted) ("The
existence of an identifiable class of persons whose self-interest
would normally motivate them to vindicate the public interest in
antitrust enforcement diminishes the justification for allowing a more
remote party such as the Union to perform the office of a private
attorney general.  Denying the Union a remedy on the basis of its
allegations in this case is not likely to leave a significant
antitrust violation undetected or unremedied.").

 B. The Rationale For Inferring A Right Of Judicial Review At The
Behest Of Producers, The Direct Beneficiaries Of The AMAA, Does Not
Extend To Ultimate Consumers

   The court of appeals concluded (Pet. App. 27a n.75) that preclusion
of review at the behest of ultimate consumers could not be inferred
from the AMAA's failure to mention consumer suits because the Act also
is silent on the subject of producer suits, yet this Court authorized
producers to challenge the administration of a milk market order fund
in Stark v. Wickard, 321 U.S. 288 (1944).  But that case is plainly
distinguishable and lends no support to the court of appeals' decision
here.  In Stark, milk producers challenged certain deductions that
were made from the "producer settlement fund" established in
connection with a milk market order.  In granting standing to the
producers, even though Congress failed to give them an express
administrative remedy or the right to judicial review, the Court
pointed out that they had a proprietary interest in the fund, and that
it "is because every dollar of deduction comes from the producer that
he may challenge the use of the fund" (321 U.S. at 308).  The Court
also noted that the statute gives producers "definite personal
rights," rights that are "not possessed by the people generally" (id.
at 304, 309 (footnote omitted)).  /17/

   Stark thus does no more than recognize that producers are the
primary beneficiaries of the regulatory scheme.  See Zuber v. Allen,
396 U.S. at 180-181;  Schepps Dairy, Inc. v. Bergland, 628 F.2d 11, 22
(D.C. Cir. 1979);  Suntex Dairy v. Bergland, 591 F.2d 1063, 1067 n.3
(5th Cir. 1979);  Rasmussen v. Hardin, 461 F.2d at 599.  Moreover,
producers are the only segment of society to which Congress gave a
veto power over the adoption and retention of market orders.  See 7
U.S.C. 608c(8), (9) and (16)(B);  Schepps Dairy, Inc. v. Bergland, 628
F.2d at 22;  Suntex Dairy v. Bergland, 591 F.2d at 1067.  As the court
noted in Suntex Dairy, 591 F.2d at 1067 n.3, producers and consumers
stand on very different ground:

      We find the generalized interests of consumers in a marketing
      order totally different from the interests of producers.  The
      statute goes to great lengths to guard the interests of
      producers by providing for administrative hearings and a
      ratification referendum.  No such Congressional deference was
      shown consumers.

   In addition, the interests of producers and handlers are generally
antagonistic (see, e.g., Zuber v. Allen, 396 U.S. at 173-174 & n.4;
79 Cong. Rec. 9490 (1935)), and thus producers, unlike consumers,
cannot rely on handler-initiated review proceedings to protect their
interests.  Finally, as recognized in Stark, the regulatory framework
often requires the Secretary to hold, allocate, and distribute funds
that belong to producers.  In such circumstances, it would be
anomalous to conclude that Congress meant to foreclose all producer
challenges to the market order program;  indeed, Congress appears to
have contemplated producer suits even though it did not authorize them
expressly.  See 79 Cong. Rec. 9479 (1935).  By contrast, we have found
no mention of consumer suits in the legislative history and debates,
thus confirming the fact that consumers are simply outside the
regulatory scheme and that Congress did not intend to permit them to
upset it through litigation.  /18/

 II. RESPONDENTS FAIL TO SATISFY THE CONSTITUTIONAL AND PRUDENTIAL
REQUIREMENTS OF THE STANDING DOCTRINE

   Assuming arguendo that Congress did not preclude all consumer suits
under the AMAA, nevertheless the court of appeals erred in concluding
that the consumer respondents in this case have standing to maintain
their challenge to the market order provisions at issue.  The various
elements of the standing doctrine were thoroughly set forth in Valley
Forge Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464 (1982).  There the Court held that "at
an irreducible minimum, Art. III requires the party who invokes the
court's authority to 'show that he personally has suffered some actual
or threatened injury as a result of the putatively illegal conduct of
the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S.
91, 99 (1979), and that the injury 'fairly can be traced to the
challenged action' and 'is likely to be redressed by a favorable
decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,
38, 41 (1976)." Valley Forge, 454 U.S. at 472 (footnote omitted).  In
addition, the Court has adhered to a number of prudential
considerations bearing on the question of standing.  Thus, "the Court
has refrained from adjudicating 'abstract questions of wide public
significance' which amount to 'generalized grievances,' pervasively
shared and most appropriately addressed in the representative
branches" (id. at 475) (quoting Warth v. Seldin, 422 U.S. 490, 499-500
(1975)).  And "the Court has required that the plaintiff's complaint
fall within 'the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question'" (Valley Forge, 454
U.S. at 475) (quoting Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)).  The consumer
respondents fail to satisfy these requirements.

   Respondents alleged two injuries in their complaint.  First, they
claimed that the market orders deprive them of a nutritious, low-cost
substitute for regular fluid milk.  Second, they claimed that by
making reconstituted fluid milk uneconomical for handlers to produce,
the orders deprive consumers of a "stabilizing market influence" that
could operate to offset seasonal fluctuations in the supply of regular
fluid milk.  /19/ Respondents' first asserted injury lies outside the
zone of interests arguably protected by the AMAA, while the second
asserted injury fails to satisfy the constitutional requirement of
injury in fact.  Moreover, the complaint as a whole fails to satisfy
the Article III requirement of redressability and the prudential
prohibition against the litigation of generalized grievances.

 A. Respondents' Interest In A Lower Price For One Type Of Fluid Milk
Is Outside The Zone Of Interests Protected By The AMAA

   Respondents' allegation that the market order provisions at issue
deprive them of a low-cost substitute for regular fluid milk fails to
satisfy the zone of interests requirement.  The primary purpose of the
AMAA is to protect dairy farmers;  /20/ the express purpose of the
market order provision (7 U.S.C. 608c) is "to raise producer prices."
S. Rep. 1011, supra, at 3 (emphasis added).  Thus, as the Ninth
Circuit noted in Rasmussen v. Hardin, 461 F.2d at 599, consumers'
interests in lower prices not only are not within the scope of
Congress's concern, but are actually contrary to the legislative
design.  See 79 Cong. Rec. 9471 (1935).

   The court below totally disregarded Congress's purpose in enacting
the AMAA when it held that consumers' interests in lower prices for
reconstituted fluid milk fall within the Act's zone of interests.  The
court of appeals' error was twofold -- first, it relied on isolated
statutory references to consumers that, when analyzed, do not support
the court's conclusion, and, second, it eschewed any resort to the
legislative history to elucidate the statute's meaning.

   1. The court of appeals' conclusion on the zone of interests issue
rested on two policy sections of the AMAA that merely reference
consumers.  First, the court cited 7 U.S.C. 602(2), which provides
that it is the policy of Congress:

      (t)o protect the interest of the consumer by (a) approaching the
      level of prices which it is declared to be the policy of
      Congress to establish in subsection (1) of this section by
      gradual correction of the current level at as rapid a rate as
      the Secretary of Agriculture deems to be in the public interest
      and feasible in view of the current consumptive demand in
      domestic and foreign markets, and (b) authorizing no action
      under this chapter which has for its purpose the maintenance of
      prices to farmers above the level which it is declared to be the
      policy of Congress to establish in subsection (1) of this
      section.

   It is difficult to understand how this section's reference to
consumers supports the result reached by the court of appeals.  In the
quoted section, Congress called upon the Secretary to increase prices
as rapidly as the public interest would permit;  it acted to protect
the interest of consumers only to the extent that that interest was
consistent with the pricing policy for farmers established in 7 U.S.C.
602(1).  That section's declared policy is to establish parity prices
for farmers.  As the court of appeals itself noted, 7 U.S.C. 602(2)
"expresses Congress' intent to protect consumers against unwarrantably
rapid or excessive price increases by limiting the Secretary's
authority to fix prices at parity and no higher" (Pet. App. 20a
(emphasis added;  footnote omitted)).  Clearly, that legislative
intent has nothing to do with respondents' asserted interest in
lowering prices for reconstituted fluid milk.  /21/

   The court of appeals also relied on 7 U.S.C. 602(4), which
expresses a policy of protecting producers and consumers against
"unreasonable fluctuations in supplies and prices." See Pet. App.
22a-23a.  Again, this section does not support the consumer
respondents' asserted interest in lower prices;  and respondents have
never alleged that the challenged market order provisions subject them
to unreasonable fluctuations in prices.  /22/

   The statutory references to consumers, therefore, are insufficient
to bring the asserted interests of the consumer respondents in this
case within the zone of interests to be protected by the AMAA.
Careful analysis of the statutory sections themselves, erroneously
eschewed by the court of appeals, reveals that lower prices for
consumer products were simply not an interest that Congress acted to
protect.  And, as the district court noted (Pet. App. 63a-64a),
"(n)either the question of price increases nor the issue of parity
pricing is implicated in this case."

   2. Equally important, the court of appeals plainly erred in
disregarding the statute's legislative history (Pet. App. 21a-23a).
As this Court has recognized, "'there certainly can be no "rule of
law" which forbids (reference to legislative history), however clear
the words may appear on "superficial examination."'" Train v. Colorado
Public Interest Research Group, Inc., 426 U.S. 1, 10 (1976) (quoting
United States v. American Trucking Associations, Inc., 310 U.S. 534,
543-544 (1940)).  Here, "superficial examination" of the statute does
indeed show that "consumers" are mentioned in the Act;  but closer
analysis of the legislative history demonstrates that the interests
asserted by the consumers in this litigation were never within the
contemplation of Congress.  While resort to legislative materials may
not always be necessary, it is surely erroneous to require that a
court avert its gaze from legislative history demonstrating that
arguable inferences from the face of the statute are manifestly at
odds with the meaning Congress intended to convey by the words it
used.  /23/

   As previously noted, the legislative history of the AMAA clearly
reveals that the essential purpose of market orders is "to raise
producer prices." S. Rep. 1011, supra, at 3;  see also H.R. Rep. 1241,
74th Cong., 1st Sess. 7 (1935);  S. Rep. 548, 74th Cong., 1st Sess. 3
(1935);  H.R. Rep. 952, 74th Cong., 1st Sess. 2 (1935).  The
legislative history of the statute as originally enacted in 1933
explains Congress's view that raising producer prices would benefit
consumers as well as farmers (H.R. Rep. 6, 73d Cong., 1st Sess. 7
(1933)):

         In the long run, consumers can not expect to buy any product
      at a price which represents less than a fair return to the labor
      and capital involved in producing the commodity.  The ultimate
      danger to the consumer in the present extremely low prices for
      agricultural products is that, if continued, they will shortly
      result in the ruin of our agriculture and it will eventually be
      necessary to pay unduly higher prices before it can be restored.
       The consumer as well as the farmer and the business man has
      everything to gain from a fair and balanced relationship between
      production and consumption that will restore to agricultural
      commodities their pre-war purchasing power.  The present
      economic emergency is in large part the result of the
      impoverished condition of agriculture and the lack of ability of
      farmers to purchase industrial commodities.  /24/

   When it amended the AAA in 1935, Congress enacted what is now 7
U.S.C. 602(2), one of the two statutory provisions mentioning
consumers and relied upon by the court of appeals.  The legislative
history of that section makes plain that the safeguards Congress
intended for consumers were to extend no further than protecting them
against price increases above the parity level (H.R. Rep. 1241, supra,
at 3 (emphasis added)):

         Subsection (3) of the "Declaration of policy" contained in
      the present act (the AAA), which was inserted in order to
      protect consumers against unwarrantably rapid or excessive price
      increases, is ambiguously worded and has met with some criticism
      from the courts as being a vague and unintelligible standard,
      from which the Secretary can derive no adequate guide in the
      exercise of his powers.  This language has, accordingly, been
      reworded to make it clear that the act confers no authority upon
      the Secretary to utilize his powers in order to maintain farm
      prices above the parity level.

   In short, the legislative history of Section 602(2) confirms the
plain reading of the statutory language, which itself demonstrates
that consumers' interest in lower prices was not an interest Congress
meant to protect.

   To an even greater extent, the same is true of 7 U.S.C. 602(4), the
other statutory provision that references consumers.  As pointed out
in the "undeniably thorough" analysis by the district court (Pet. App.
22a), Section 602(4) was enacted in 1954 as an amendment to the AMAA,
in response to totally different problems from those addressed by
Congress in 1935 (Pet. App. 62a-63a (emphasis added)):

         The 1954 amendments were enacted to counter the falling farm
      prices caused by the surplus of commodities after the Korean
      Conflict.  H.R. Rep. No. 1927, 83rd Cong., 2d Sess., reprinted
      in (1954) U.S. Code Cong. & Ad. News 3399, 3401.  The amendments
      dealt primarily with price supports and parity pricing.  Id. at
      3399-3400.  The House Report on the Act made it clear that the
      interests of consumers were being taken into account in dealing
      with these issues.  This concern was expressed in terms of the
      importance of price stability, id. at 3407, and abundance of
      supply.  Id. at 3402.  The Report also makes it clear that farm
      prices are in large measure independent of the prices consumers
      pay.  Id. at 3404.

         Nowhere in the House Report is the interest of consumers
      mentioned in relation to Orders regulating commodities.  Indeed,
      the Orders are not even a significant part of the 1954 Act.  The
      comments on consumers in the legislative history seem primarily
      aimed at dispelling the misconception that the flexible
      price-support program embodied in the bill would materially
      lower consumer prices.  See House Report, supra, at 3404.

   The district court was clearly correct in its analysis of Section
602(4).  The Senate Report explains that the section (S. Rep. 1810,
83d Cong., 2d Sess. 8 (1954))

      would authorize the continuous operation of marketing agreements
      and orders, even though prices might be above parity, if
      necessary to provide an orderly flow to market throughout the
      marketing season without unreasonable fluctuations in supplies
      and prices.  At present programs must be discontinued when the
      parity objective is achieved.

   See also H.R. Rep. 2664, 83d Cong., 2d Sess. 24 (1954).  In
essence, then, Section 602(4) was intended to reduce the already
limited price protection for consumers provided in Section 602(2) by
authorizing the Secretary to establish market order prices above
parity in order to maintain orderly marketing conditions.  The
legislative history thus reinforces the conclusion that the AMAA's
references to consumers, even if meant to be more than "pious
platitudes" (Rasmussen v. Hardin, 461 F.2d at 599), were never
intended to advance the goals asserted by respondents in this
litigation.

   3. The zone of interests test serves an essential function in the
demarcation of the proper roles for courts and legislatures.  The
prudential limitations on standing, including the zone test, stem from
"concerns 'about the proper -- and properly limited -- role of the
courts in a democratic society.'" Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 80 (1978) (quoting Warth
v. Seldin, 422 U.S. at 498).  As the Court has explained (id. at 500):

      Without such (prudential) limitations -- closely related to Art.
      III concerns but essentially matters of judicial self-governance
      -- the courts would be called upon to decide abstract questions
      of wide public significance even though other governmental
      institutions may be more competent to address the questions * *
      * .

   Similarly, the District of Columbia Circuit has recognized that one
function of the standing doctrine is "to define the proper judicial
role relative to the other major governmental institutions in the
society." Tax Analysts & Advocates v. Blumenthal, 566 F.2d at 139
(footnote omitted).  See generally Valley Forge, 454 U.S. at 472,
473-474.  The zone test is particularly well suited to that purpose
(Tax Analysts & Advocates v. Blumenthal, 566 F.2d at 140 (footnote
omitted)):

      The zone test, by its very language, implicates the relationship
      between the legislative and judicial branches as the predominant
      factor in its operation -- "the zone of interests to be
      protected or regulated by the statute . . . in question." Thus,
      the zone test serves the purpose of allowing courts to define
      those instances when it believes the exercise of its power at
      the instigation of a particular party is not congruent with the
      mandate of the legislative branch in a particular subject area.

   In the present case, there can be no doubt that the exercise of
judicial power at the instigation of the consumer respondents is "not
congruent with the mandate" of Congress as embodied in the AMAA.  To
the extent respondents are dissatisfied with the purposes of the AMAA
and believe that the Act should be altered to give greater weight to
their interests, respondents have a remedy, but it lies with Congress
rather than with the courts.  The courts overstep their "properly
limited" role when they undertake to resolve grievances that stem from
dissatisfaction with choices made by Congress in the exercise of its
legislative judgment.  The zone of interests test is properly
employed, therefore, to deny standing to parties seeking to advance
interests that are inconsistent or incongruent with the interests
Congress intended to promote /25/ (see, e.g., Copper & Brass
Fabricators Council, Inc. v. Dep't of the Treasury, 679 F.2d at 953;
Control Data Corp. v. Baldrige, 655 F.2d at 295), or that go further
than the limited protection that Congress may have intended for a
particular interest (see, e.g., Rodeway Inns of America, Inc. v.
Frank, 541 F.2d 759, 766 (8th Cir. 1976), cert. denied, 430 U.S. 945
(1977)).  /26/ Here, respondents assert an interest (lower retail
prices) that is at best essentially unrelated to, and at worst the
direct opposite of, what Congress intended to achieve (higher prices
for farmers).  The zone of interests test clearly bars standing under
these circumstances.  /27/

 B. Respondents Cannot Demonstrate Injury In Fact Caused By Any
Fluctuation In Milk Supplies

   The court of appeals also erred in concluding that the consumer
respondents satisfactorily established their standing to maintain this
suit through their allegation that the market order provisions at
issue "deprive producers and consumers of a stabilizing market
influence" (J.A. 17).  Ensuring stable market conditions is an express
purpose of the statute (see 7 U.S.C. 602(4)), and thus this facet of
respondents' asserted injury is arguably within the Act's zone of
interests.  /28/ The problem here however, is that respondents
essentially did no more than parrot the language of the statute.  Even
then, their allegation of injury was entirely speculative and
hypothetical;  they asserted that "(a) reconstituted fluid product
could quickly expand the fluid milk supply when seasonable changes
result in a reduction of the whole fluid milk supply" (J.A. 17
(emphasis added)).  Plainly, this is insufficient to demonstrate the
constitutionally-required injury in fact.  Respondents did not allege
that they (or, for that matter, any other consumers) have ever been or
are likely to be subjected to shortages in fluid milk supplies due to
seasonal variations in production.  This is a fatal defect.  See Warth
v. Seldin, 422 U.S. at 498-499, 504.

   Moreover, any allegation that the consumer respondents have in fact
suffered or are likely to suffer from seasonal shortages would be
untenable.  There are indeed seasonal fluctuations in the production
of milk, but a number of regulatory mechanisms operate to prevent
those fluctuations from affecting ultimate consumers.  /29/ Under
these circumstances, respondents were required to come forward with
facts supporting their claimed injury.  They utterly failed to do so
with respect to their market stabilization claim, and that claim must
therefore be disregarded as "unadorned speculation" (Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26, 44 (1976)).  See Warth v.
Seldin, 422 U.S. at 501-502.

 C. Respondents Are Attempting To Litigate A Generalized Grievance
More Appropriately Addressed By Congress

   The court of appeals recognized that the interests asserted by the
consumer respondents in this case are widely shared (Pet. App. 25a);
indeed, those interests appear to be shared by virtually every
household in the country, a class even larger than that of all
taxpayers.  Nevertheless, the court of appeals concluded that
dismissal of the suit on "generalized grievance" grounds would mean
that consumer suits would never be justiciable (ibid.).  As this Court
has held, however, "'(t)he assumption that if respondents have no
standing to sue, no one would have standing, is not a reason to find
standing.'" Valley Forge, 454 U.S. at 489 (quoting Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 227 (1974)).  Even
if this were not so, the court of appeals was clearly wrong in the
context of this case.  As stressed by Judge Scalia in dissent (Pet.
App. 38a-40a), consumer interests in milk market orders are entirely
derivative of handlers' interests and can be fully protected by
handlers' suits (brought after proper exhaustion of administrative
remedies).  Handlers are the "litigants best suited to assert (the)
particular claim" that is here only indirectly shared by the consumer
respondents.  Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,
100 (1979).

   Moreover, Congress, when it chooses, can and does overcome
prudential limitations on standing such as the generalized grievance
doctrine by extending standing to any person adversely affected or
aggrieved by the challenged action.  Gladstone, Realtors v. Village of
Bellwood, 441 U.S. at 100;  see also Sedler, Sanding and the Burger
Court:  An Analysis and Some Proposals for Legislative Reform, 30
Rutgers L. Rev. 863, 876-885 (1977).  As we have already demonstrated,
however, Congress has not chosen to do so in the AMAA.  If the
consumer respondents in this case are held to have standing, the
effect would be to add a boundlessly latitudinal "person aggrieved"
standing provision to the AMAA.  Granting standing to consumers whose
interests are indirect and shared in common with virtually every
household in the nation would undermine the statutory scheme enacted
by Congress and would disrupt a massive program that has stability as
a primary goal.  See, e.g., 7 U.S.C. 601.  Such a dramatic change in a
regulatory program of 50 years' duration is "most appropriately
addressed in the representative branches." Valley Forge, 454 U.S. at
475.

 D. Respondents Cannot Demonstrate That Their Injury, If Any, Is
Redressable By A Court

   To establish standing, a litigant must demonstrate that his
individualized injury "' is likely to be redressed by a favorable
decision'" (Valley Forge, 454 U.S. at 472 (quoting Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. at 38)) and that he "personally
would benefit in a tangible way from the court's intervention" (Warth
v. Seldin, 422 U.S. at 508 (footnote omitted)).  Standing is not
established when it is "speculative whether the desired exercise of
the court's remedial powers" would benefit the plaintiff.  Simon v.
Eastern Kentucky Welfare Rights Org., 426 U.S. at 43;  see id. at
44-46.

   Here, it is entirely speculative whether the pocketbooks of the
nation's consumers would be augmented in any way by upholding
respondents' challenge to the milk market orders.  Congress has
recognized that retail prices paid by consumers are largely
independent of the wholesale prices paid to farmers.  H.R. Rep. 1927,
83d Cong., 2d Sess. 7, 9 (1954).  Any connection between amendment of
the market orders and lower retail prices at the consumer level,
therefore, is "at best speculative and at worst nonexistent." Valley
Forge, 454 U.S. at 480 n.17.  As the district court explained (Pet.
App. 61a):

         There are too many variables which would have an effect on
      consumer prices if the Market Orders were changed.  These
      variables include:  whether handlers pass the cost savings on to
      consumers;  whether the change causes a substantial market
      dislocation, leading to higher overall milk prices;  whether
      increased demand for milk powder will increase its price;
      whether handlers would dry milk merely to evade the regulations.
       This situation is, as the Preliminary Impact Statement, 45 Fed.
      Reg. 75,956 (1980), indicates, extremely complex, and any
      benefit to the plaintiffs from the proposed changes in the
      regulations is hypothetical and speculative.  /30/

   The court of appeals disagreed with these observations based solely
on the Department of Agriculture's preliminary impact analysis of
respondents' proposal (45 Fed. Reg. 75956 (1980)), which the court
read as showing that the immediate (i.e., within three years) impact
of adopting respondents' proposal would be to save consumers
nationwide $186 million annually (Pet. App. 17a).  But the court
misunderstood the impact analysis.  In fact, the analysis offers no
evidence regarding the likely behavior of the many nonregulated
parties intervening between producers and ultimate consumers, whose
actions necessarily determine the redressability of respondents'
grievance.  Rather, for purposes of studying respondents' proposal,
the Secretary analyzed the impact on the producer-through-consumer
chain as if all independent, intervening variables would operate to
the benefit of consumers.  The Secretary's impact analysis states that
it took this approach because it was impossible to measure or predict
accurately the future actions of the intervening third parties (see 45
Fed. Reg. 75960, 75963 (1980)).  Thus, the Secretary assumed that all
wholesale cost savings would be passed through to retail prices, /31/
that consumers would accept manufacturer-reconstituted milk, that it
would be made available by wholesalers and retailers in fresh milk
markets, /32/ and that state regulations would not prohibit its sale.
/33/ Accordingly, the preliminary impact analysis merely confirms the
speculative nature of any assumption that a change in the market
orders would benefit consumers, and it cannot satisfy the Article III
requirement of redressability.

   Finally, because the redressability of respondents' indirect injury
is unrelated to the merits of their claim, it is essential that they
be required to demonstrate that a court's intervention will result in
some tangible benefit to them before they call upon the judiciary to
oversee the extraordinarily complex market order system administered
by the Secretary.  At minimum, therefore, the court below erred in
remanding this case for a decision on the merits when respondents have
not yet shown (even to the court of appeals' satisfaction (see Pet.
App. 18a-19a)) that a judgment in their favor would produce the relief
they seek.  Requiring respondents to establish their standing before
trial is particularly important in this case because a trial on the
merits would likely be devoted to issues wholly unrelated to
respondents' standing.  Indeed, the court of appeals itself recognized
that the questions to be resolved on the merits are narrow in scope
(Pet. App. 34a n.95 (emphasis in original)):  "The compensatory
payment regulation should be sustained if it is within the Secretary's
granted power, issued pursuant to proper procedure, and supported by
adequate evidence and reason when adopted." In these circumstances, a
trial on the merits is not likely to produce any evidence supportive
of respondents' standing allegations.  As a result, respondents should
not be allowed to proceed until and unless the defects in the standing
allegations have been corrected.  See Warth v. Seldin, 422 U.S. at
501-502.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   SUSAN SLEATER

      Attorneys

   JANUARY 1984

   /1/ The government's petition for rehearing was denied on March 28,
1983 (Pet. App. 47a).  The time for filing a petition for a writ of
certiorari did not begin to run, however, until the court of appeals
denied the petition for rehearing filed by the intervenor-appellees.
See Rule 20.4 of the Rules of this Court.

   /2/ Statutory authorization for the issuance of milk market orders
(then called licenses) was first contained in the Agricultural
Adjustment Act of 1933 (AAA), ch. 25, Section 8(3), (4), and (5), 48
Stat. 35.  See Zuber v. Allen, 396 U.S. 168, 174-175 (1969).  The
legality of this program was cast into doubt by the Court's decision
in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
"With its agricultural marketing program resting on quicksand,
Congress moved swiftly to eliminate the defect of overbroad delegation
and to shore up the void in the agricultural marketing provisions."
Zuber v. Allen, 396 U.S. at 175.  It did so by enacting significant
amendments to the AAA in 1935 (Act of Aug. 24, 1935, ch. 641, 49 Stat.
750 et seq.).  The market order program was again put in jeopardy when
in United States v. Butler, 297 U.S. 1 (1936), the Court invalidated
certain taxing provisions of the AAA.  Congress responded by passing
the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. 601 et
seq., which reenacted the market order provisions of the 1935
legislation.  The provisions of the AMAA at issue in this litigation
are in all material respects unchanged from the 1935 legislation.  For
convenience, we discuss in this brief the provisions of the AMAA,
except where specific reference to earlier legislation is required.

   /3/ Fluid milk must be consumed relatively quickly after it is
produced because it is a naturally fertile field for the growth of
bacteria.  If it cannot be marketed quickly in fluid form, it must be
manufactured into cheese, butter, powder, or other milk products that
can be stored for longer periods.  Milk that cannot be disposed of in
fluid form is referred to in the trade as "surplus," and it commands a
lower price than fluid milk because it is manufactured into products
that compete directly with similar products produced at various times
from across the nation.  See Pet. App. 3a.

   /4/ At the time this action was brought, there were 47 milk market
orders in effect.  Since that time, the Secretary has promulgated two
orders that had the effect of merging six prior orders into two (47
Fed. Reg. 53693 (1982);  48 Fed. Reg. 52869 (1983)), and, in addition,
he has promulgated two orders covering previously unregulated
territory (46 Fed. Reg. 28611 (1981);  47 Fed. Reg. 11495 (1982)).

   /5/ Some market orders contain a three-class pricing system.  For
all practical purposes, however, this case concerns only the
difference between Class I and Class II prices (see Pet. App. 3a n.7).

   /6/ As used in this brief, "respondents" refers to the plaintiffs
in the district court and does not include the intervenor-defendants
who are respondents in this Court by virtue of Rule 19.6 of the Rules
of this Court.

   /7/ Prior to filing suit, respondents had petitioned the Secretary
to hold a rulemaking hearing on the same proposal (see 44 Fed. Reg.
65990 (1979)).  The Secretary published a Notice of Request for
Hearing and asked for comments (ibid.).  Subsequently, the Secretary
published a preliminary impact analysis of respondents' proposal and
invited comments (45 Fed. Reg. 75956 (1980)).  Respondents filed this
action shortly thereafter.  Later, on April 7, 1981, the Secretary
determined not to hold a rulemaking hearing because respondents'
proposal would not further the purposes of the Act and could harm the
dairy industry (J.A. 57-63).  As a result of this action by the
Secretary, the court of appeals held that that portion of respondents'
complaint challenging the Secretary's "inaction" on their rulemaking
request (J.A. 18, 19, 20) had become moot (Pet. App. 32a n.93).  In
its present posture, the case is limited to respondents' right to
challenge the market orders on their merits.

   /8/ The complaint described the individual consumers as follows
(J.A. 12):

         Plaintiffs Harrell, Desmarais and Weinberg are consumers of
      fluid dairy products.  Due to inflation, they have become
      extremely cost-conscious and routinely seek to decrease food
      expenditures without sacrificing taste or the nutritional value
      of their diet.  The existing regulations have denied them the
      opportunity to purchase a lower priced reconstituted milk
      product in lieu of raw fluid milk.  If such lower priced milk
      were available they would purchase it.

   /9/ The limited circumstances under which producers may obtain
judicial review of market orders, discussed at pages 30-32, infra,
have no bearing on this case.

   /10/ In United States v. Lamars Dairy, Inc., 500 F.2d 84 (7th Cir.
1974), the court refused to permit handlers to bypass the statutory
exhaustion requirement.  Referring to a series of cases in which
another court had temporarily allowed handlers to avoid the statutory
scheme, the court observed (id. at 86):

         The Brown cases illustrate the folly of deviating from the
      statutory enforcement scheme under the (Act).  The same district
      judge who had so many doubts as to the applicability of the Act
      to defendants became totally convinced defendants were handlers,
      once he had the benefit of the Secretary's opinion.  Meanwhile,
      years passed without defendants' paying into the fund.

   /11/ The lower courts have been equally scrupulous in requiring
handlers to exhaust the statutorily-prescribed administrative remedy.
See, e.g., Navel Orange Administrative Committee v. Exeter Orange Co.,
Nos. 82-4333 and 82-4548 (9th Cir. Nov. 15, 1983);  United States v.
United Dairy Farmers Cooperative Ass'n, 611 F.2d 488 (3d Cir. 1979);
United States v. Lamars Dairy, Inc., 500 F.2d 84 (7th Cir. 1974);
Willow Farms Dairy, Inc. v. Benson, 276 F.2d 856 (4th Cir. 1960);
United States v. Ideal Farms, Inc., 262 F.2d 334 (3d Cir. 1958);
Panno v. United States, 203 F.2d 504 (9th Cir. 1953);  United States
v. Turner Dairy Co., 166 F.2d 1 (7th Cir.), cert. denied, 335 U.S. 813
(1948);  La Verne Co-op.  Citrus Ass'n v. United States, 143 F.2d 415
(9th Cir. 1944).

   /12/ As the court observed in Blair v. Freeman, 370 F.2d at 232,
"(a)ny court is chary lest its disarrangement of such a regulatory
equilibrium (under the AMAA) reflect lack of judicial comprehension
more than lack of executive authority."

   /13/ Presumably, it would be within a court's power to secure the
benefit of the Secretary's expertise by invoking the doctrine of
primary jurisdiction and staying its hand pending the Secretary's
consideration of a regulatory issue arising under the AMAA.  See,
e.g., Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113 (1973);
Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973).  But there
is no warrant for resort to the judge-made doctrine of primary
jurisdiction when Congress itself already has specified the precise
manner in which agency expertise is to be brought to bear on
challenges to the AMAA's regulation of handlers.  In these
circumstances, invocation of primary jurisdiction, while perhaps
necessary as an aid to judicial decisionmaking, would only highlight
the underlying flaw in permitting unregulated ultimate consumers to
litigate challenges that Congress intended to be brought by handlers
under the provisions of 7 U.S.C. 608c(15).  Moreover, the primary
jurisdiction doctrine would not be a complete solution to the problems
that would be caused by bypassing the congressionally-mandated review
procedures.  As discussed below (see pages 24-25, infra), Congress
intentionally denied handlers the right to seek interim judicial
relief that would interrupt the smooth functioning of the program.
Consumer suits brought under the APA, on the other hand, would be
subject to no such restrictions, thus enabling consumers to obtain for
handlers the very remedies that Congress prohibited handlers from
seeking for themselves.

   /14/ The requirement that handlers pay for milk according to its
end use is affirmatively mandated by the Act (7 U.S.C. 608c(5)), as is
the payment to farmers of a uniform price irrespective of the uses to
which the milk is put by handlers (ibid.).  To accomplish these
statutory directives, handlers make their payments for milk into
regional producer settlement funds that are then distributed to
farmers (see Pet. App. 3a-4a).  The successful operation of the
settlement funds is extremely sensitive to the slightest disturbance
and, as a practical matter, is directly dependent upon prompt
compliance by all handlers.  The default of a single handler causes an
immediate breach in the equalization of costs to handlers and a
reduction in price to farmers.  The unfair advantage gained by a
defaulting handler is sufficient to constitute a strong inducement to
competitors to make similar defaults.  Any impediment to the
Secretary's ability to enforce immediate compliance could result in
insufficient funds to provide farmers with the income protection
Congress intended for them, and so destabilize the nation's fluid milk
supply.

   /15/ Respondents' petition for a rulemaking hearing (see page 9
note 7, supra) is no substitute for the administrative procedures
mandated by the statute and available only to handlers.  As the court
of appeals noted (Pet. App. 33a (emphasis in original)), the complaint
in this case "challenge(s) the Secretary's authority to adopt the
compensatory payment regulation in the first place;  (the) complaint
did not attack his subsequent refusal to correct that alleged wrong."
Thus, the issues raised in the lawsuit were not decided by the
Secretary's denial of the petition for a rulemaking hearing.
Moreover, as explained by Judge Scalia (id. at 41a-44a), the
administrative proceeding required by 7 U.S.C. 608c(15)(A) as a
prerequisite to judicial review is an entirely different type of
proceeding from the informal rulemaking hearing that respondents
sought.

   /16/ To the extent that consumers seek assurances of adequate
supplies of milk, that objective, while possibly in conflict with
their interest in lower prices, is also an objective of handlers.  See
Zuber v. Allen, 396 U.S. at 190.

   /17/ The lower courts have allowed producers to challenge market
orders in analogous circumstances.  See, e.g., Walmsley v. Block, 719
F.2d 1414 (8th Cir. 1983);  Suntex Dairy v. Bergland, 591 F.2d 1063
(5th Cir. 1979);  Blair v. Freeman, supra;  Dairylea Cooperative, Inc.
v. Butz, supra.  In all of these cases, as in Stark, the producers
alleged direct injury in the form of a reduction in revenues that the
AMAA was intended to provide for them.  In contrast to consumer suits,
therefore, producer suits do not thwart the basic purposes of the
statute, and there is accordingly no basis for inferring a
congressional intent to preclude them.

   /18/ It is also worth noting that the disruptive potential arising
out of producer suits such as that authorized in Stark is far less
than the disruption likely to be caused by consumer suits of the type
sanctioned by the decision below.  Milk market orders only become
effective with the agreement of at least two-thirds of the affected
producers (see page 7, supra), and only remain in effect so long as a
majority of producers continue to approve of them (see 7 U.S.C.
608c(16)(B)).  Thus, producer suits challenging such orders will be
relatively infrequent.  Producer suits also are ordinarily limited to
challenges to individual market orders.  Consumers, on the other hand,
could conceivably assert an "interest" in challenging every market
order because, by legislative design, they would have played no formal
role in devising the orders;  moreover, as in this case, consumers
could attack market orders nationwide, thus greatly increasing the
disruptive potential of litigation.

   /19/ Specifically, respondents described their alleged injuries as
follows (J.A. 16, 17):

         28. The economic barriers to marketing reconstituted milk
      created by the existing Orders deprive plaintiffs Weinberg,
      Harrel, and Desmarais and other consumers of access to a
      nutritious dairy beverage at a lower price than fresh drinking
      milk.

                      * * * * *

         31. The existing Orders deprive producers and consumers of a
      stabilizing market influence.  A reconstituted fluid product
      could quickly expand the fluid milk supply when seasonable
      changes result in a reduction of the whole fluid milk supply.
      Tight fluid markets and rising fluid prices could be avoided and
      the size of the reserve fresh whole Grade A milk needed to
      provide the fluid market could be reduced if such adjustments
      were possible.

   /20/ Confirmation of Congress's solicitude for farmers is apparent
from the Act's requirement that at least two-thirds of the dairy
farmers in an affected region must approve a proposed market order
before it may take effect (7 U.S.C. 608c(8)).  This requirement
operates even in the face of opposition from affected handlers if
"such order is the only practical means of advancing the interests of
the producers" (7 U.S.C. 608c(9)(B)).  Moreover, if producers become
dissatisfied with an order they, unlike handlers, may require the
Secretary to terminate it (7 U.S.C. 608c(16)(B)).

   /21/ The Department of Agriculture advises us that throughout the
entire history of the AMAA, the blend prices paid to producers under
the market orders have rarely, if ever, reached parity.  For at least
the last several years, the blend prices paid under all orders have
been below parity.  Thus, even the limited protection that Congress
may have intended for consumers is not implicated by the realities of
the regulatory program.

   /22/ Respondents have made loose allegations concerning
fluctuations in the supply of milk.  As we demonstrate below, however,
those allegations are insufficient to establish standing in this case
(see pages 43-45, infra).

   /23/ The court of appeals refused to examine any legislative
history in its consideration of the zone of interests test in reliance
on its earlier decision in Tax Analysts & Advocates v. Blumenthal,
supra (Pet. App. 22a).  There the court concluded that "full-scale
examination of legislative history" (566 F.2d at 141) should be
avoided in applying the zone of interests test because (1) it could
lead to a premature judgment on the merits, (2) the legislative
history is not likely to be illuminating on the zone of interests
question, and (3) full scale examination of the legislative history
could undermine the "generous" nature of the zone test.  Id. at
141-142.  While we question the validity of any rule of interpretation
that requires a court to eschew examination of pertinent legislative
history, we note that the court in Tax Analysts did not purport to
create an absolute rule.  Instead, the court stated (id. at 143 n.80
(emphasis in original)):

      We do not rule out any role for legislative history at this
      stage, and we would expect to be informed by the parties if the
      legislative history contained clear evidence of an intent either
      to allow the appellant's interests as a basis for standing or to
      deny standing to a party in this position.

   Even this limited acknowledgment of the pertinence of legislative
history is, we submit, too narrow, but it is worth noting that in
subsequent cases the District of Columbia Circuit has in fact examined
the relevant legislative history in applying the zone of interests
test.  See, e.g., American Friends Service Committee v. Webster, 720
F.2d 29, 55-57 (D.C. Cir. 1983);  Copper & Brass Fabricators Council,
Inc. v. Dep't of the Treasury, 679 F.2d 951, 952-953 (D.C. Cir. 1982);
 Control Data Corp. v. Baldrige, 655 F.2d 283, 294-296 & nn.23-25
(D.C. Cir.), cert. denied, 454 U.S. 881 (1981).  Other circuits also
examine the pertinent legislative history when applying the zone test.
 See, e.g., Peoples Gas, Light & Coke Co. v. United States Postal
Service, 658 F.2d 1182, 1195-1196 (7th Cir. 1981);  In re Swearingen
Aviation Corp., 605 F.2d 125, 126-127 (4th Cir. 1979).  This Court did
likewise in Barlow v. Collins, 397 U.S. at 164-165 & n.7.

   /24/ See also 79 Cong. Rec. 9460 (1935) ("These increased prices
were necessary to restore the purchasing power of the farmer in the
interest of the common welfare of the country");  79 Cong. Rec.
9594-9595, 9608, 9610 (1935) (same).

   /25/ In Tax Analysts & Advocates v. Blumenthal, 566 F.2d at 142
n.76, the court of appeals observed that there was some confusion
surrounding the question of which interests are relevant to the zone
test.  While we fail to understand the basis for the confusion, we
agree entirely with the court's resolution of the question (ibid.):

      Essentially the confusion surrounds what exactly has to fall
      within the relevant zone:  1) the parties themselves;  2) the
      interests of the parties in general;  or 3) the particular
      interest the parties are asserting in the litigation.  It seems
      clear to us that the particular interests are the relevant
      interests in the context of an application of the zone standard.
       Professor Davis agrees.  (K. Davis, Administrative Law Treatise
      Section 22.00-1 (Supp. 1970))

   In this case, therefore, the fact that respondents are consumers is
irrelevant for standing purposes, as is the fact that they may possess
a general interest in the price of food.  Rather, the relevant focus
is on their interest in lower retail prices for reconstituted milk and
the relationship of that interest to the purposes of the AMAA.

   /26/ Rodeway Inns is particularly relevant to the instant case.
There, the court was confronted with a statute that did provide
limited protection for the plaintiff group, but not for the interest
sought to be asserted in the litigation.  In denying standing, the
court stated (541 F.2d at 766 (emphasis added)):

      We cannot conclude that two provisions which protect the
      interests of potential competitors in limited situations were
      intended by Congress to confer standing on competitors to
      challenge action taken under the (National Housing Act) not
      falling within the areas protected by those two particular
      provisions.  * * * The provisions protecting hotel owners are of
      limited application only;  it is not our prerogative to expand
      the scope of hotel owners' interests beyond the zones of
      protection defined by Congress.

   So too, it is not the proper function of the judiciary to expand
upon the limited protection Congress intended to provide for consumers
in the AMAA.

   /27/ As noted at the outset (see page 17, supra), respondents
brought this action under the Administrative Procedure Act.  That Act
grants standing only to persons "adversely affected or aggrieved by
agency action within the meaning of a relevant statute * * * " (5
U.S.C. 702 (emphasis added)).  The plain language of the APA thus
incorporates a "zone of interests" test that respondents cannot meet;
assuming, arguendo, that respondents have suffered injury at all, it
is, as we have shown, injury that is not cognizable within the meaning
of the AMAA.

   /28/ The legislative history indicates, however, that, as with
prices, Congress's intention to promote market stability was meant to
protect farmers rather than consumers.  See H.R. Rep. 1241, supra, at
10 (emphasis added) ("In order to eliminate, so far as possible,
violent seasonal fluctuations in the available milk supply with their
attendant disturbing effect upon returns to producers, and to
encourage a uniform volume of production throughout the year, an
adjustment in payments to producers" may be made.).  See also Suntex
Dairy v. Bergland, 591 F.2d at 1064-1065 (emphasis added) ("The blend
price mechanism established by a milk marketing order acts as a
stabilizing influence that insulates farmers from the buffeting of
prices that would otherwise accompany differences in consumer
demand.").

   /29/ Many market orders establish a "base" system for allocating
payments from handlers to producers.  See 7 U.S.C. 608c(5)(B);  H.R.
Rep. 1241, supra, at 9-10.  Adjustments to the base system may
authorize higher payments for milk produced during seasonal low
periods and thus provide incentives to counteract fluctuating
production levels.  Id. at 10.  Second, the price paid to rural
producers may include a premium to provide them with an incentive to
ship their milk to city markets whenever necessary.  Id. at 9-10.
Third, the price support system, an entirely separate statutory scheme
regulating milk production (see 7 U.S.C. 1421-1449), has kept the
supply of milk high year round.  In fact, since the fall of 1979,
there has been a dramatic increase in milk production without a
concomitant increase in demand.  See State of South Carolina ex rel.
Tindal v. Block, 717 F.2d 874, 877-878 (4th Cir. 1983), petition for
cert. pending, No. 83-1215;  48 Fed. Reg. 34943 (1983).  During fiscal
year 1982, the government purchased nearly $845 million in surplus
milk products under the price support system.  As a result of these
various factors, there is no experience within general knowledge or
subject to judicial notice of a shortage of fluid milk at the consumer
level due to seasonal fluctuations in production.

   /30/ Congress recognized these same factors as early as 1935.
During debate on the 1935 amendments to the AAA, the following
colloquy occurred (79 Cong. Rec. 9470 (1935)):

         Mr. ZIONCHECK:  * * * Is there any provision in the bill for
      a maximum cost to the consumer?

         Mr. DOXEY:  If the gentleman can show us how we can fix a
      maximum cost to the consumer, after the many people through
      whose hands the commodity passes, I am sure as one Member I
      would be grateful for his contribution.  No;  there is nothing
      in the bill which fixes a maximum cost to the consumer.  That is
      to be left to competition and the law of supply and demand.

   /31/ The preliminary impact statement reports that in its analysis
"farm to retail margins are held constant." 45 Fed. Reg. 75963 (1980).

   /32/ With respect to consumer acceptance and availability, the
impact analysis states (45 Fed. Reg. 75960 (1980)):

         While the model does make it possible to estimate a broad
      range of economic impacts, others cannot be measured because no
      data are available.  The most important of these is the
      acceptability of reconstituted milk by consumers and the extent
      to which such a product would be sold in each of the fresh milk
      markets across the U.S.

   /33/ The impact analysis notes that 15 states prohibit the
manufacture and sale of reconstituted milk in whole or in part and an
additional ten states regulate its price (45 Fed. Reg. 75962 (1980)).
The analysis further states (id. at 75963):

         Because it is not possible to measure the potential impact of
      state regulation on the alternative proposals, this analysis
      relies upon * * * impacts that would be expected in the absence
      of state regulations to prevent the sale of reconstituted milk.

                      * * * * *

         Because the likelihood of success of such efforts (to change
      state restrictions) is impossible to predict or measure, no
      estimates of their impacts are presented.