United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2023 Decided April 18, 2023

No. 22-5125

AIR EXCURSIONS LLC,

APPELLANT

v.

JANET L. YELLEN, IN HER OFFICIAL CAPACITY AS SECRETARY 

OF THE UNITED STATES DEPARTMENT OF THE TREASURY AND 

UNITED STATES DEPARTMENT OF THE TREASURY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-01769)

Kenneth S. Nankin argued the cause and filed the briefs for 

appellant.

Adam C. Jed, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, and Michael S. Raab, Attorney.

Before: HENDERSON and RAO, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Air 

Excursions, LLC provides air transportation services in Alaska 

and the Pacific Northwest. It claims that the United States

Department of Treasury (Treasury) erroneously disbursed 

pandemic relief funds to a competitor airline and challenges 

that disbursement as unlawful under the Administrative 

Procedure Act (APA). See 5 U.S.C. § 706(2)(A). We conclude, 

however, that Air Excursions lacks Article III standing to bring 

this suit. Accordingly, we vacate the district court’s order 

dismissing the complaint on the merits and remand with 

instructions to dismiss for lack of jurisdiction.

I. 

The Coronavirus Aid, Relief and Economic Security 

(CARES) Act was designed to help businesses weather the 

pandemic. See Pub. L. No. 116-136, 134 Stat. 281 (2020). The 

Act authorized the Treasury to disburse up to $25 billion to 

“passenger air carriers” through the Payroll Support Program 

(PSP). See 15 U.S.C. § 9072(a)(1). The Act granted the 

Treasury significant discretion to distribute PSP funds “in such 

form” and “on such terms and conditions . . . as the Secretary 

determines appropriate.” Id. § 9073(b)(1)(A). The only 

requirement was that a recipient use the funds exclusively for 

“the continuation of payment of employee wages, salaries, and 

benefits.” Id. § 9072(a). If an air carrier accepted PSP funds but 

nonetheless furloughed workers, the Act gave the Treasury 

discretionary authority to “clawback . . . any financial 

assistance” provided the air carrier. Id. § 9073(b)(1)(A). 

The Congress later authorized two additional relief 

packages that allowed the Treasury to disburse more money to 

passenger air carriers during the pandemic. First, the 

Consolidated Appropriations Act (CAA) authorized the 
3

Treasury to disburse an additional $15 billion to passenger air 

carriers for worker support. See Pub. L. No. 116-260, tit. IV,

§ 402, 134 Stat. 1182, 2053 (2020). Second, the American 

Rescue Plan Act (ARP) authorized another $14 billion under 

the same terms and for the same purpose. See Pub. L. No. 117-

2, § 7301, 135 Stat. 4, 106 (2021). Both statutes incorporated 

the CARES Act’s grant of broad discretion to the Treasury in 

disbursing the funds. See 15 U.S.C. §§ 9092(a), 9093(b), 

9141(b). 

One air carrier that applied for PSP relief was Corvus

Airlines, Inc., a small airline servicing certain commuter routes 

between Anchorage and Southwest Alaska. But just two days 

after it applied for PSP disbursements, Corvus petitioned for 

relief under Chapter 11 of the United States Bankruptcy Code

and ceased operations. See 11 U.S.C. § 301 (describing filing 

of petition); id. ch. 11. While the bankruptcy proceedings were 

pending, the Treasury approved Corvus’s application for PSP 

funds and the bankruptcy court gave Corvus leave to enter a 

PSP Agreement authorizing the disbursement. The PSP 

Agreement allowed disbursement only to the “Recipient,” 

which it defined as the “Signatory Entity”—Corvus—and its 

“successors” and “assigns.” First Am. Compl. ¶¶ 21–22 (J.A. 

161). The Agreement further provided that the Recipient could

not “pledge, mortgage, encumber, or otherwise assign” any 

interest in the PSP funds to any “other Person without the

express written approval of [the] Treasury.” Id. ¶ 23 (J.A. 161). 

Pursuant to the PSP Agreement and subsequent agreements 

incorporating it, Corvus received three disbursements totaling 

$30 million, as authorized by the CARES Act, the CAA and 

the ARP. 

By the time the Treasury disbursed any funds, Corvus’s

bankruptcy sale was already complete. Through an Asset 

Purchase Agreement, Corvus opted to sell its business to 
4

multiple entities. One of the buyers—FLOAT Shuttle, Inc.

(FLOAT)—purchased for $8 million several of Corvus’s 

airplanes, all of its capital stock and “all right, title, and 

interest . . . in and to any and all federal loans, grants, subsidies, 

or other forms of funding . . . including, without limitation, to 

monies or rights to monies pursuant to the [CARES Act].” Id. 

¶ 32 (J.A. 163). In approving the Asset Purchase Agreement, 

the bankruptcy court clarified that FLOAT “is not a successor 

to [Corvus] or [its] estate[] by reason of any theory of law or 

equity, and the Transaction does not amount to a consolidation, 

merger, or de facto merger” between Corvus and FLOAT. Id. 

¶ 33 (J.A. 163–65). After the bankruptcy sale, FLOAT began

offering air passenger transportation on certain routes between 

Anchorage and Southwest Alaska that Corvus had once served. 

Air Excursions planned to operate in that same market and 

began accepting charter reservations for the same routes that 

FLOAT serves.

1 Air Excursions claims that the Treasury 

should not have disbursed any PSP funds to the postbankruptcy Corvus entity. According to Air Excursions, 

FLOAT was the actual recipient of the funds because it 

purchased the right to Corvus’s PSP disbursements in 

bankruptcy and the Treasury’s three disbursements thus

violated the PSP Agreement, which specified Corvus as the 

“Recipient” of the funds and prohibited Corvus from assigning 

any interest in those funds without the Treasury’s written 

approval. They also ran counter to the bankruptcy court’s 

order, which declared that FLOAT is not Corvus’s successor in 

interest. Air Excursions further alleged that FLOAT’s receipt 

of the funds allowed it to engage in anticompetitive behavior—

first, by charging below-market fares for its services and,

1

 Air Excursions is an Alaska LLC doing business as “Alaska 

Seaplanes.” Air Excursions also applied for and received PSP 

disbursements. 
5

second, by negotiating a sublease for airport gate space with 

Air Excursions in bad faith, costing Air Excursions a lucrative 

business opportunity. This conduct, according to the 

complaint, harmed Air Excursions because it enabled FLOAT 

to “capture market share, prevent entry of competitors and 

impede competitors in the market.” Id. ¶ 47 (J.A. 168). 

Relying on a theory of competitor standing, Air 

Excursions brought this action under the APA to challenge the 

Treasury’s disbursement of PSP funds to FLOAT. See 5 U.S.C. 

§ 706(2)(A). To remedy its alleged competitive injuries, Air 

Excursions sought a declaration that the Treasury’s 

disbursements were unlawful and an injunction requiring the 

Treasury to “take remedial measures,” see First Am. Compl. 

¶ b (J.A. 171), including its “clawback” authority pursuant to 

15 U.S.C. §§ 9073 and 9093, and to refrain from disbursing 

any additional funds to FLOAT. The Treasury moved to 

dismiss, both for lack of standing and on the merits. 

The district court held that Air Excursions had competitor

standing but dismissed the complaint on the merits. See Air 

Excursions, LLC v. Yellen, 598 F. Supp. 3d 4, 13–18 (D.D.C. 

2022). It concluded that the CARES Act and its progeny 

commit the terms of PSP disbursements to agency discretion 

and thus Air Excursions’ challenge is not reviewable under the 

APA. Id. at 13–15; see also 5 U.S.C. § 701(a)(2) (excepting 

from APA reviewability challenges to “agency action” that are

“committed to agency discretion by law”); Oryszak v. Sullivan, 

576 F.3d 522, 525 (D.C. Cir. 2009) (“the court has jurisdiction” 

under 28 U.S.C. § 1331 to consider challenges to “agency 

action committed to agency discretion by law” but “will 

properly grant a motion to dismiss the complaint for failure to 

state a claim”). The court further concluded that, even if the 

statutes or the PSP Agreement provide a meaningful standard 

against which to review the allegations, Air Excursions 
6

“misconstrue[d]” the bankruptcy order’s “no-successor” 

provision and its complaint failed to raise a plausible inference 

that FLOAT’s receipt of funds violated the PSP Agreement’s 

“no-assignment” provision. See Air Excursions, 598 F. Supp. 

3d at 15–18. Air Excursions timely appealed. 

II. 

We review de novo the district court’s determination that 

Air Excursions has Article III standing to sue. See Kareem v. 

Haspel, 986 F.3d 859, 865 (D.C. Cir. 2021). As detailed infra, 

the complaint fails to support the claim that the Treasury’s 

disbursement of PSP funds to FLOAT caused Air Excursions a 

competitive injury redressable by a favorable judicial decision. 

Article III standing is an “essential and unchanging part” 

of the Constitution’s case-or-controversy requirement. Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560 (1992); see also U.S. 

CONST. art. III, § 2, cl. 1. To establish Article III standing, a 

plaintiff must show that it “suffered or [is] imminently 

threatened with a concrete and particularized ‘injury in fact’

that is fairly traceable to the challenged action of the defendant 

and likely to be redressed by a favorable judicial decision.” 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 

572 U.S. 118, 125 (2014); see also Lujan, 504 U.S. at 560. A 

plaintiff must support allegations of standing “in the same way 

as any other matter on which the plaintiff bears the burden of 

proof, i.e., with the manner and degree of evidence required at 

the successive stages of the litigation.” Kareem, 986 F.3d at

865 (quoting Lujan, 504 U.S. at 561). 

“[A]t the motion to dismiss stage, we ‘accept the wellpleaded factual allegations as true and draw all reasonable 

inferences from those allegations in the plaintiff’s favor.’” Id.

(quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)). 

But we do not assume the truth of legal conclusions, see 
7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or “accept 

inferences that are unsupported by the facts set out in the 

complaint,” Islamic Am. Relief Agency v. Gonzales, 477 F.3d 

728, 732 (D.C. Cir. 2007); see also Kareem, 986 F.3d at 865–

66 (“[T]hreadbare recitals of the elements of [standing], 

supported by mere conclusory statements, do not suffice.”

(quoting Arpaio, 797 F.3d at 19) (second alteration in Arpaio)). 

Setting “mere conclusory statements” aside, the complaint 

must contain “sufficient factual matter, accepted as true,” to 

support an inference of standing “‘that is plausible on its face.’” 

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). The plausibility standard requires 

“more than a sheer possibility” that the plaintiff has standing to 

sue. Id. Thus, if “a complaint pleads facts that are ‘merely 

consistent with’” the plaintiff’s theory of standing, “it ‘stops 

short of the line between possibility and plausibility of 

‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 

A. 

We begin “by identifying pleadings that, because they are 

no more than conclusions, are not entitled to the assumption of 

truth.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 

555. Air Excursions asserts that, by distributing PSP funds to 

FLOAT, the Treasury “improperly subsidized FLOAT with a 

windfall that it did not earn and was not entitled to receive.” 

First Am. Compl. ¶ 50 (J.A. 169). These funds, according to 

the complaint, allowed FLOAT to approach its sublease

negotiations with Air Excursions in bad faith and charge 

below-market fares for its services, both of which caused Air 

Excursions a competitive injury by impeding its entry into the 

Alaskan air passenger transport market and impairing its ability 

to compete in that market once entered. But the causal link 

between the Treasury’s disbursement of PSP funds and 

FLOAT’s alleged anticompetitive behavior rests entirely on 
8

“general averments” and “conclusory allegations,” Friends of 

the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 184 (2000) (quoting Lujan v. Nat’l Wildlife Fed’n, 

497 U.S. 871, 888 (1990)), the truth of which we do not assume 

in evaluating whether the complaint satisfies the traceability

element of Article III standing, see Iqbal, 556 U.S. at 678 

(“[T]he tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal 

conclusions.”). 

First, Air Excursions makes only conclusory allegations

connecting FLOAT’s receipt of PSP funds with the outcome of 

the sublease negotiations. The complaint avers that FLOAT’s 

receipt of PSP funds “allow[ed]” it to “impede and delay” Air 

Excursion’s market entry by failing to negotiate a sublease for 

airport gate space in good faith. First Am. Compl. ¶ 50 (J.A. 

169). Granted, Air Excursions’ causal theory is possible—the 

infusion of PSP capital may have given FLOAT the financial 

means to deny itself a potentially lucrative source of rental 

income. But “[t]he plausibility standard . . . asks for more than 

a sheer possibility that” the challenged action caused the injury 

alleged. Iqbal, 556 U.S. at 678. And FLOAT’s refusal to 

sublease gate space is “not only compatible with, but indeed 

[is] more likely explained by” FLOAT’s obvious incentive not 

to sublease to a competitor, independent of its receipt of PSP 

disbursements. Kareem, 986 F.3d at 869 (quoting Iqbal,

556 U.S. at 680); accord Twombly, 550 U.S. at 550–51, 566.

Second, Air Excursions similarly fails to connect 

FLOAT’s receipt of PSP disbursements with its pricing 

decisions. The complaint avers only that “Treasury’s improper 

subsidies . . . are allowing FLOAT to continue to charge 

below-market fares.” First Am. Compl. ¶ 52 (J.A. 169); see 

also id. ¶¶ 46–47 (J.A. 168) (FLOAT’s below-market fares are

“[a]ided by Treasury’s unlawful disbursements”). Such 
9

“general allegation[s]” are disregarded, Kareem, 986 F.3d at 

867, and the complaint contains no factual matter regarding the 

timing of FLOAT’s pricing decisions or otherwise suggesting 

that FLOAT’s receipt of PSP disbursements had anything to do 

with its fare pricing, see Iqbal, 556 U.S. at 679 (“[W]here the 

well-pleaded facts do not permit the court to infer more than 

the mere possibility of misconduct, the complaint has 

alleged—but it has not ‘show[n]’—‘that the pleader is entitled 

to relief.’” (quoting FED. R. CIV. P. 8(a)(2)) (second alteration

in Iqbal)). Indeed, the complaint supplies no factual support for 

its allegation that FLOAT charges below-market fares in the 

first place. The complaint alleges only that “FLOAT has been 

charging below-market fares” ever “[s]ince it began providing 

service in the Anchorage-Southwest Alaska passenger air 

transportation market.” First Am. Compl. ¶ 47 (J.A. 168). We 

disregard such “‘naked assertion[s]’ devoid of ‘further factual 

enhancement’” in evaluating whether the complaint establishes 

a causal link between the challenged action and the alleged 

injury. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 

557) (alteration in Iqbal). Noticeably absent from the 

complaint is any allegation about the fares FLOAT in fact

charges or how those fares compare to prevailing market rates.

In addition, some well-pleaded allegations in the 

complaint undermine the inference that FLOAT used the 

disbursements to further its alleged anticompetitive behavior. 

The complaint asserts that FLOAT’s owners used funds from 

the PSP disbursements to reduce their equity stake in the 

company, which is inconsistent with an inference that FLOAT 

used the PSP funds to subsidize its pricing decisions or support

its refusal to sublease gate space to Air Excursions. See 

Gonzales, 477 F.3d at 732 (“This Court need not . . . accept 

inferences that are unsupported by the facts set out in the 

complaint[.]”). To nudge its theory of causation “across the line 

from conceivable to plausible,” Twombly, 550 U.S. at 570, Air 
10

Excursions would need to allege more specifically how 

FLOAT used its PSP disbursements. 

In sum, the complaint fails to show that FLOAT charged 

below-market fares and that FLOAT’s receipt of PSP 

disbursements influenced its pricing decisions or negotiating 

conduct. See Kareem, 986 F.3d at 868. The complaint’s 

“[t]hreadbare recitals of the elements of [standing], supported 

by mere conclusory statements, do not suffice.” Arpaio, 

797 F.3d at 19 (quoting Iqbal, 556 U.S. at 678) (alterations in 

Arpaio).

B.

Remaining are the allegations relating to Air Excursions’ 

role in the Alaskan air transportation market as well as the 

allegations that the Treasury improperly disbursed $30 million 

to FLOAT. See Est. of Boyland v. U.S. Dep’t of Agric., 913 

F.3d 117, 123 (D.C. Cir. 2019) (“[W]hen considering whether 

a plaintiff has Article III standing, a federal court must assume, 

arguendo, the merits of his or her legal claim.”). These 

allegations are insufficient to sustain a theory of competitor 

standing.

Competitor standing addresses the injury in fact 

requirement of Article III standing. Because “increased 

competition almost surely injures a seller in one form or 

another,” Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010), 

we have recognized that “parties suffer constitutional injury in 

fact when agencies lift regulatory restrictions on their 

competitors or otherwise allow increased competition,” La. 

Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 

1998). To invoke competitor standing, a plaintiff must show

that the challenged government action results in “an actual or 

imminent increase in competition, which increase we recognize 

will almost certainly cause an injury in fact” to any competitor 
11

in the relevant market. Sherley, 610 F.3d at 73. The plaintiff 

must also show that it is in fact “a direct and current

competitor” in that market, in which case the plaintiff’s 

“bottom line may be adversely affected by the challenged 

government action.” KERM, Inc. v. FCC, 353 F.3d 57, 60 

(D.C. Cir. 2004) (quoting New World Radio, Inc. v. FCC, 

294 F.3d 164, 170 (D.C. Cir. 2002)); see also Mendoza v. 

Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014) (“Having 

concluded individuals competing in the herder labor market 

have standing to challenge the TEGLs, we need only determine 

whether any of the plaintiffs in this action is a member of that 

market.”); Mobile Relay Assocs. v. FCC, 457 F.3d 1, 13–14 

(D.C. Cir. 2006) (“the requirement that Nextel be a ‘direct’ and 

‘current’ competitor of [plaintiffs] is likely met” but plaintiffs 

“lack competitor standing . . . because they have failed to make 

a concrete showing that they are likely to suffer financial 

injury”). 

The initial inquiry requires that the challenged agency

action directly increase competition in the affected market, 

thereby injuring competitors “as a matter of economic logic.” 

PSSI Global Servs., LLC v. FCC, 983 F.3d 1, 12 (D.C. Cir. 

2020); see also New World Radio, 294 F.3d at 172 (“basic 

law[s] of economics” hold that increased competition leads to 

actual injury (quotation omitted)). Agency action may increase 

competition, for example, if it allows new entrants into a fixed

regulated market, see FCC v. Sanders Bros. Radio Station, 

309 U.S. 470, 476–77 (1940); Mendoza, 754 F.3d at 1011, if it 

lifts price controls on a firm’s competitor and therefore permits

“price competition” that would not otherwise occur, see La. 

Energy & Power Auth., 141 F.3d at 367, or if it reimburses a 

firm’s competitor for selling its product or service at 

discounted rates, see U.S. Telecom Ass’n v. FCC, 295 F.3d 

1326, 1331 (D.C. Cir. 2002). 
12

Our cases are clear, however, that an agency action does 

not confer competitor standing if it merely “create[s] a ‘skewed 

playing field,’” PSSI Global Servs., 983 F.3d at 11 (quoting 

Mobile Relay, 457 F.3d at 13), by, for example, providing a 

“windfall” to a competitor, see Mobile Relay, 457 F.3d at 13. 

For instance, in PSSI Global Services, we denied competitor 

standing to satellite operators that challenged an FCC order

making alleged competitors eligible for “relocation payments.” 

983 F.3d at 5–6. Although the operators complained that the

payments were “arbitrarily high” and would “make the already 

strongest competitors even stronger,” they failed to connect 

their competitors’ receipt of payments with a more specific 

competitive injury. See id. at 11–12. Similarly, in Mobile 

Relay, we denied competitor standing to radio licensees that

complained the FCC “improperly undervalued” a portion of the 

electromagnetic spectrum it granted to a competitor because 

the licensees failed to demonstrate they were “likely to suffer 

financial injury” as a result of the agency action. 457 F.3d at 

12–13; see also id. at 13–14 (“bare assertion” that competitor’s 

receipt of a windfall creates a “skewed playing field” “is not 

enough”). Consequently, a competitor’s receipt of a windfall, 

whether monetary or otherwise, falls short of establishing that 

“any specific harm” will result “as a matter of economic logic.” 

PSSI Global Servs., 983 F.3d at 11–12; see also Mobile Relay, 

457 F.3d at 13–14; Am. Soc’y of Travel Agents, Inc. v. 

Blumenthal, 566 F.2d 145, 149 (D.C. Cir. 1977). 

Here, the complaint establishes no more than that FLOAT

received a windfall of the precise sort PSSI Global Services and 

Mobile Relay held was insufficient to support a theory of 

competitor standing. FLOAT’s receipt of a cash “windfall,” see

First Am. Compl. ¶ 50 (J.A. 169), is economically 

indistinguishable from the cash relocation payments in PSSI 

Global Services, 983 F.3d at 11–12, and the “improperly 

undervalued” regulatory grant in Mobile Relay, 457 F.3d at 12–
13

13. Although the cash PSP payments may create a “skewed 

playing field” in the Alaskan air transportation market, a 

competitor’s receipt of a windfall, by itself, “is not enough,” id. 

at 13–14, to demonstrate the “actual or imminent increase in 

competition” required before a plaintiff may invoke competitor 

standing, Sherley, 610 F.3d at 73; see also PSSI Global Servs., 

983 F.3d at 11–12; La. Energy & Power Auth., 141 F.3d at 367.

The complaint’s deficiencies doom Air Excursion’s

asserted competitor standing based on FLOAT’s alleged 

below-market fares and therefore make our decision in U.S. 

Telecom Association inapplicable. See 295 F.3d at 1331.

There, we recognized that price competition is injurious 

competition; thus, a trade association’s members had standing 

to challenge an FCC order making their competitor “eligible 

for a subsidy that permits it to offer lower prices for the 

same . . . services.” Id. That subsidy reimbursed the competitor 

for “an amount equal to the aggregate discount” off the 

standard price of the competitor’s services, thereby directly 

connecting the challenged agency action and the competitor’s 

pricing decisions. Id. at 1328; see also La. Energy & Power 

Auth., 141 F.3d at 366–67 (agency action leading to “increased 

price competition” causes competitive injury). By contrast, a 

competitor’s receipt of a bare regulatory windfall—like 

FLOAT’s receipt of PSP disbursements—does not necessarily 

influence the competitor’s pricing decisions or otherwise result 

in increased competition in the industry. See PSSI Global 

Servs., 983 F.3d at 11–12; Mobile Relay, 457 F.3d at 13.

In sum, the competitor standing doctrine supplies the link

between increased competition and tangible injury but does 

not, by itself, supply the link between the challenged conduct 

and increased competition. The latter must be apparent from 

the nature of the challenged action itself—as in U.S. Telecom 

Association—or from the well-pleaded allegations of the 
14

plaintiff’s complaint—which Air Excursions fails to supply 

here. To hold otherwise would vitiate Article III’s case or 

controversy requirement and permit a business to superintend 

its industry’s regulatory scheme, even if the agency action at 

issue threatens the business with only highly attenuated or

wholly speculative consequences. See Simon v. E. Ky. Welfare 

Rts. Org., 426 U.S. 26, 37 (1976) (“No principle is more 

fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court 

jurisdiction to actual cases or controversies.”). 

The complaint fails to establish that Air Excursions has 

suffered a competitive injury satisfying Article III’s injury in 

fact requirement. See PSSI Global Servs., 983 F.3d at 11–12; 

Mobile Relay, 457 F.3d at 13; cf. U.S. Telecom Ass’n, 295 F.3d 

at 1331.2 We therefore vacate the district court’s order granting 

Treasury’s motion to dismiss under Rule 12(b)(6) and remand 

with instructions to dismiss the complaint because Air 

Excursions lacks Article III standing.

So ordered. 

2

 Because Air Excursions has not demonstrated that the 

challenged agency action increases competition in the affected 

market, we need not determine whether the complaint sufficiently 

alleges that Air Excursions is in fact FLOAT’s “direct and current

competitor.” See KERM, Inc., 353 F.3d at 60 (quoting New World 

Radio, 294 F.3d at 170).