United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2017 Decided August 29, 2017

No. 16-7107

GARY E. JOHNSON, ET AL.,

APPELLANTS

v.

COMMISSION ON PRESIDENTIAL DEBATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01580)

Bruce E. Fein argued the cause for appellants. With him 

on the briefs were W. Bruce DelValle.

Lewis K. Loss argued the cause for appellees. With him on 

the brief were Uzoma N. Nkwonta, Robert F. Bauer, Marc E. 

Elias, Elisabeth C. Frost, Charles H. Bell Jr., John R. 

Phillippe, Jr., and William D. Coglianese. Michael S. Steinberg

entered an appearance.

Before: BROWN and PILLARD, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.
2

Opinion concurring in Part I and concurring in the 

judgment filed by Circuit Judge PILLARD.

BROWN, Circuit Judge: Every four years, we suffer 

through the celebration of democracy (and national nightmare) 

that is a presidential election. And, in the end, one person is 

selected to occupy our nation’s highest office. But in every 

hard-fought presidential election there are losers. And, with 

quadrennial regularity, those losers turn to the courts. See, e.g., 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996); Fulani v. Brady, 

935 F.2d 1324 (D.C. Cir. 1991); Johnson v. FCC, 829 F.2d 157 

(D.C. Cir. 1987). Today’s challenge concerns 2012 third-party 

candidates Gary Johnson and Jill Stein. Their Complaint 

presents novel claims under antitrust law and familiar First 

Amendment allegations. The district court dismissed the 

Complaint, finding Plaintiffs lacked Article III standing, 

antitrust standing, and in the alternative, failed to state a claim 

for which relief could be granted. See Johnson v. Comm’n on 

Presidential Debates, 202 F. Supp. 3d 159 (D.D.C. 2016). For 

the reasons set forth below, we affirm.

I.

Gary Johnson and James Gray ran as the Libertarian 

Party’s presidential and vice presidential candidates in the 2012 

elections, while Jill Stein and her running mate Cheri Honkala 

ran on the Green Party ticket. Both slates qualified on a 

sufficient number of state ballots to have a mathematical 

chance of an Electoral College victory. Each was nonetheless 

excluded from the nationally televised general-election 

debates.

They claim that they were excluded pursuant to an 

agreement between the Obama for America and Romney for 

President campaigns. They allege the parties’ agreement, 

reflected in a memorandum of understanding (“MOU”), 
3

stipulated to three presidential debates and one vice

presidential debate, and designated dates, locations, 

moderators, and topics. Those would be the only four debates 

between the major-party candidates, “except as agreed to by 

the parties” to the MOU. JA 63. The MOU provided that the 

Commission on Presidential Debates (“Commission”), a 

nonprofit organization, would host the debates subject to its 

willingness to “employ the provisions” of the MOU. JA 64.

Any candidate, other than the signatories, would be invited 

to participate in the debates only if he or she satisfied certain 

selection criteria set forth in the MOU. First, the candidate had 

to be constitutionally eligible to be president. Second, he or 

she must have qualified to appear on “enough state ballots to 

have at least a mathematical chance of securing an Electoral 

College majority in the 2012 general election.” Compl. ¶ 74,

JA 45–46. And, third, the candidate had to have achieved a 

“level of support of at least 15% (fifteen percent) of the national 

electorate as determined by” averaging the most recent results 

of “five selected national public opinion polling 

organizations.” Id. ¶ 74, JA 46. Johnson and Stein met the first 

two criteria, but they fell short of the 15 per cent polled-support 

threshold. 

The third-party candidates, their running mates, their 

campaigns, and the parties they represented in the 2012 

election (collectively, “Plaintiffs” for purposes of this opinion) 

brought suit, challenging the MOU as an unlawful agreement 

to monopolize and restrain competition in violation of sections 

1 and 2 of the Sherman Act. 15 U.S.C. §§ 1–2. The Complaint 

alleges a conspiracy with the overall objective to:

entrench[] market power in the presidential debates 

market, the presidential campaign market, and the 

electoral politics market of the two major political 
4

parties by exercising duopoly control over 

presidential and vice presidential debates in general 

election campaigns for the presidency.

Compl. ¶ 1, JA 15. The Complaint also alleges exclusion of 

Plaintiffs from the debates “because of hostility towards their 

political viewpoints” in violation of their First Amendment 

rights to free speech and association. Id. On appeal, Plaintiffs 

have abandoned their further claim of intentional interference 

with prospective economic advantage and relations.

Plaintiffs allege they were injured “in their businesses of 

debating in presidential elections, participating in presidential 

election campaigns, and engaging in electoral politics.” Id.

¶ 90, JA 49. They claim to have lost millions of dollars’ worth 

of publicity, campaign contributions, and matching funds that 

ordinarily would follow participation in the debates, as well as 

the salaries they would have earned as President and Vice 

President if they had won. Id. ¶ 90, JA 49–50. They sought 

invalidation of the 15 per cent polled-support requirement, 

injunctive relief dissolving the Commission and enjoining 

further collusion between the two major parties, and treble 

damages under section 4 of the Clayton Act, 15 U.S.C. § 15. 

They named as defendants the Commission and one of its 

founders, Frank J. Fahrenkopf, Jr.; Michael D. McCurry, a 

Commission co-chair; the Republican and Democratic 

National Committees; and 2012 presidential candidates Barack 

Obama and Willard Mitt Romney. Compl. ¶ 24–30, JA 23–26. 

Defendants’ interests on appeal are represented primarily by 

counsel for the Commission. 

The district court dismissed the case under Federal Rules 

of Civil Procedure 12(b)(1) and (6). It held that Plaintiffs

lacked Article III standing to litigate their Sherman Act claims 

because they were based on “wholly speculative” injuries 
5

“dependent entirely on media coverage decisions” by 

nonparties. Johnson, 202 F. Supp. 3d at 169. The court also 

found the alleged harm—lack of media coverage that led to low 

popularity—preceded their exclusion from the debates. See id.

Plaintiffs had thus failed to allege injury in fact that was either 

traceable to the Commission or redressable in this case. We 

review the district court’s dismissal de novo, taking the facts

alleged in the Complaint as true and drawing all reasonable 

inferences in Johnson and Stein’s favor. See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555–56 (2007); Andrx Pharm., Inc. v. 

Biovail Corp. Int’l, 256 F.3d 799, 805 (D.C. Cir. 2001).

II.

We begin with Plaintiffs’ antitrust claims, asking first 

whether Plaintiffs may properly proceed before this Court on 

these allegations. “Federal courts are not courts of general 

jurisdiction; they have only the power that is authorized by 

Article III of the Constitution and the statutes enacted by 

Congress pursuant thereto.” Bender v. Williamsport Area Sch. 

Dist., 475 U.S. 534, 541 (1986). Accordingly, the Court must 

assess Plaintiffs’ standing based on “the specific common-law, 

statutory or constitutional claims that [they] present[].” Int’l 

Primate Prot. League v. Administrator of Tulane Educ. Fund, 

500 U.S. 72, 77 (1991). 

The “irreducible constitutional minimum of [Article III] 

standing” requires that a plaintiff demonstrate three elements: 

(1) injury in fact; (2) causation; and (3) redressability. Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “The party 

invoking federal jurisdiction bears the burden of establishing 

these elements.” Id. at 561. But here we also discuss a second 

type of “standing” doctrine: antitrust (i.e. statutory) standing. 

While Article III standing is a familiar concept common to all 

cases, antitrust standing is claim-specific. It asks “whether the 
6

plaintiff is a proper party to bring a private antitrust action.” 

Associated Gen. Contractor of Cal., Inc. v. Cal. State Council 

of Carpenters, 459 U.S. 519, 535 n.31 (1983) (citing Daniel 

Berger & Roger Bernstein, An Analytical Framework for 

Antitrust Standing, 86 YALE L.J. 809, 813 n.11 (1977); Earl E. 

Pollock, Standing to Sue, Remoteness of Injury, and the 

Passing-On Doctrine, 32 ANTITRUST L.J. 5, 6–7 (1966)). We 

will discuss each in turn.

A.

Plaintiffs’ injuries are clearly pleaded in the Complaint; 

they allege their exclusion from the debates caused them to lose 

access to television audiences and resulting campaign 

contributions worth hundreds of millions of dollars. This 

injury—though shared with many individuals who may have 

wished to campaign for the presidency but did not join Mitt 

Romney and Barack Obama on the debate stage—is 

nonetheless particularized. See FEC v. Akins, 524 U.S. 11, 23–

25 (1998); see also Akins v. FEC, 101 F.3d 731, 736 (D.C. Cir. 

1996) (en banc).1

 Each excluded individual was uniquely 

 1 Plaintiffs have adopted a litigation strategy attributing their 

exclusion to the fifteen percent requirement—presumably reducing 

the number of similarly-situated persons to those who had obtained 

a mathematical possibility of victory in the electoral college. But see 

Philip Bump, So You Want an Independent Candidate for President? 

You’re Running Out of Time., WASH. POST (May 5, 2016), 

https://tinyurl.com/Bump-Article (“To collect [the requisite] 

signatures [to achieve a mathematical possibility of winning the 

electoral college], you need one of two things: a lot of organization 

or a lot of money. . . . [The cost] varies by state, but if we look at 

the upper end of that [price] range, we’re talking about a $5.5 million 

investment to get on the ballot in all 50 states.”). Of course, 

counsel’s particular litigation strategy—the way they choose to 

characterize the effect of the alleged injury—hardly controls our 

analysis on this point. 
7

rejected from the debates, and security would no doubt have 

stopped them each individually had they attempted to take the 

stage.

Things become far more complicated, however, when we 

consider whether “a favorable decision” of this Court may 

“redress[]” Plaintiffs’ injury. Lujan, 504 U.S. at 561. 

Plaintiffs’ requested relief—whether stated in the form of a 

request for injunctive relief or damages—amounts to a request 

for a declaratory judgment stating the Commission is not 

entitled to exclude particular individuals from its debates. On 

this point, we must agree with this Court’s opinion in Perot v. 

Federal Election Commission: “[I]f this [C]ourt were to enjoin 

the [Commission] from staging the debates or from choosing 

debate participants, there would be a substantial argument that 

the [C]ourt would itself violate the [Commission’s] First 

Amendment rights.” 97 F.3d at 559. 

Acknowledging this shortcoming hardly determines the 

merits of Plaintiffs’ claims, Concurring Op. 3; it assumes them 

and reflects on the permissibility of the resulting remedy. The 

district court’s opinion put all parties on notice of the

redressability problem. See Johnson, 202 F. Supp. 3d at 172–

73 (citing Perot, 97 F.3d at 559; Sistrunk v. City of Strongsville, 

99 F.3d 194, 199–200 (6th Cir. 1996)). Yet Plaintiffs failed to 

address the point. In so doing, they leave us with, at least, grave 

doubt as to the constitutionality of any order issued by this 

Court aimed to redress Plaintiffs’ injury. 

B.

i.

In such circumstances, and where a statutory jurisdiction 

could determine the result, the doctrine of constitutional 

avoidance permits us to resolve this case on alternative
8

grounds, namely antitrust standing. See 13B CHARLES A.

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL 

PRACTICE AND PROCEDURE § 3531.15, p.338 (3d ed. 2014) (“If 

both constitutional and prudential objections are raised to 

standing . . . it is entirely appropriate to deny standing on 

prudential grounds if that course is easier, or more clearly right, 

than to rule on constitutional grounds first.”); see also Kowalski 

v. Tesmer, 543 U.S. 125, 129 & n.2 (2004) (assuming plaintiffs 

satisfied Article III standing and deciding the case on 

prudential third-party standing grounds). 

This Court has acknowledged its “jurisdiction does not 

turn on antitrust standing.” In re Lorazepam & Clorazepate 

Antitrust Litig., 289 F.3d 98, 107–08 (D.C. Cir. 2002) (citing

Associated Gen. Contractors of California, Inc., 459 U.S. at

535 n.31 (“[T]he focus of the doctrine of ‘antitrust standing’ is 

somewhat different from that of standing as a constitutional 

doctrine.”)). The concurrence, therefore, suggests we cannot 

“sidestep” the Article III standing inquiry to resolve this case 

on antitrust standing grounds. Concurring Op. 1. But

proceeding directly to clearly-dispositive, non-jurisdictional, 

prudential standing analysis is a permissible—even 

preferable—course in rare cases where jurisdictional, Article 

III standing inquiry yields grave constitutional doubt. See, e.g., 

Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918,

921 n.2 (D.C. Cir. 1989) (“The dissent suggests that our 

analysis of standing must proceed from constitutional to 

prudential requirements. Although that is the oft-stated 

sequence, the rule of avoidance counsels nonetheless that, 

where the prudential question is clearly dispositive, we should 

not reach out to determine the constitutional issue.” 

(citing Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1194 (D.C.

Cir. 1987); Calumet Indust., Inc. v. Brock, 807 F.2d 225, 228 

(D.C. Cir. 1986); Pub. Citizen v. Lockheed Aircraft Corp., 565 

F.2d 708, 714 (D.C. Cir. 1977)); see also Steel Co. v. Citizens 
9

for a Better Env’t, 523 U.S. 83, 97 n.2 (1998) (accepting the 

proposition that “a statutory standing question can be given 

priority over an Article III question”). This more flexible

approach is especially important in cases like this one, where 

“constitutional and antitrust standing overlap”—cases “where 

the plaintiff has not shown any injury caused by the antitrust 

violation.” IIA PHILIP E. AREEDA, ET AL., ANTITRUST LAW

¶ 335a, p. 77 n.7 (4th ed. 2014). 

ii.

As relevant here, antitrust standing requires a plaintiff to 

show an actual or threatened injury “of the type the antitrust 

laws were intended to prevent” that was caused by the 

defendant’s alleged wrongdoing. Andrx Pharm., Inc., 256 F.3d 

at 812; see also Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 

104, 109–13 (1986) (discussing antitrust standing and the 

necessity of “antitrust injury” in suits under the Clayton Act). 

To understand the scope of antitrust standing, we focus on 

the bedrock principle of this field: antitrust laws protect market 

(i.e. economic) competition. Brunswick Corp. v. Pueblo BowlO-Mat, Inc., 429 U.S. 477, 488 (1977). Plaintiffs, however,

define their injuries as millions of dollars in free media, 

campaign donations, and federal matching funds—injuries to 

them as individual candidates in a political contest for votes. 

Square peg, meet round hole.

As an initial matter, this Court has clearly held injury to a 

single competitor does not suffice to constitute an injury to 

competition. See Dial A Car, Inc. v. Transp., Inc., 82 F.3d 484, 

486–87 (D.C. Cir. 1996). Further, and most important, “neither 

the business of conducting the government nor the holding of 

a political office constitutes ‘trade or commerce’ within the 

meaning of the Sherman Act.” Sheppard v. Lee, 929 F.2d 496, 

498 (9th Cir. 1991). This conclusion—that an antitrust 
10

violation must involve injury to commercial competition—is 

supported by Plaintiffs’ inability to define a commercial market 

in which they operate. Instead, they discuss the “presidential 

campaign market,” “the electoral politics market,” and the 

“presidential candidates market,” Compl. ¶¶ 1, 11, JA 15, 18, 

and identify their product as “information about themselves or 

other presidential candidates,” Blue Br. 23. While these terms 

may capture what political scientists call a “political 

economy,” the phrase is merely a term of art. Short of alleging 

Americans are engaged in a widespread practice of selling their 

votes—which the Complaint does not do—the “market” 

Plaintiffs identify is no more regulated by the antitrust laws

than the “marketplace of ideas” or a “meet market.” 

The injuries Plaintiffs claim are simply not those 

contemplated by the antitrust laws. Consequently, Plaintiffs’ 

antitrust claims fail to meet the requirements of antitrust 

standing.

III.

Finally, we turn to Plaintiffs’ First Amendment claim. 

Perhaps in an effort to tack around unfavorable case law, the 

Complaint states the Commission’s debates “exert a de facto 

influence on the outcome of presidential elections” such that 

exclusion from the debate, “in light of proven political realities, 

guaranteed [Plaintiffs] to lose.” Compl. ¶¶ 110–11, JA 54. 

Plaintiffs therefore allege the fifteen percent polling criterion, 

“selected by Defendants with the specific intent of suppressing 

the viewpoints of third party or independent presidential 

candidates and to boost the political speech of the two major 

party nominees,” constitutes an “unreasonable burden on free 

speech or political association in violation of the First 

Amendment.” Compl. ¶¶ 119–20, JA 56; see also id. ¶ 130, JA 

57 (alleging the fifteen percent requirement “imposes a burden 
11

on voting and associational rights in violation of the First 

Amendment”); see generally Ark. Educ. Television Comm’n v. 

Forbes, 523 U.S. 666 (1998). 

None of these allegations articulate a clear legal claim, let 

alone identify a cognizable injury. To make matters worse, the 

Complaint omits entirely any allegation of government action,

focusing entirely on the actions of the nonprofit Defendants.

See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 837–43 (1982) 

(discussing the state action requirement). 

In Steel Co. v. Citizens for a Better Environment, the 

Supreme Court observed that, in some “extraordinary” cases,

federal courts may pretermit the jurisdictional threshold and 

dismiss a claim that is “so insubstantial, implausible, 

foreclosed by prior decisions of [the Supreme] Court, or 

otherwise completely devoid of merit as not to involve a federal 

controversy.” 523 U.S. at 89. The First Amendment claim 

here fits the bill. Under these circumstances, it would be 

improper—and indeed impossible—for the Court to conduct a 

meaningful standing analysis. There may be First Amendment 

injuries we could invent for Plaintiffs, but those claims were 

not presented in the Complaint. See Warth v. Seldin, 422 U.S. 

490, 509–10 (1975) (examining the face of the complaint to 

determine whether a plaintiff has established Article III 

standing).

IV.

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.
PILLARD, Circuit Judge, concurring in Part I and 

concurring in the judgment:

I join Part I of the majority opinion. I write separately as 

to Parts II and III because, although I entirely agree that both 

the antitrust and First Amendment claims fail, we are a court of 

limited jurisdiction obligated to decide the Article III standing 

question before assessing the merits of the claims. 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-42 (2006); 

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 

U.S. 167, 180 (2000). Despite its misleading name, “statutory 

standing” is not jurisdictional in the Article III sense, as the 

Supreme Court made clear in Lexmark Int’l, Inc. v. Static 

Control Components, Inc., 134 S. Ct. 1377, 1387 & n.4 (2014).

See also Associated General Contractors of Cal., Inc. v. Cal. 

State Council of Carpenters, 459 U.S. 519, 528 & nn.17-18, 

545-46 (1983) (dismissing case for lack of antitrust injury only 

after assuming the complaint stated a valid antitrust claim). We 

thus cannot sidestep the Article III standing inquiry and dismiss 

instead on statutory “antitrust standing” grounds. “It is firmly 

established in our cases that the absence of a valid (as opposed 

to arguable) cause of action does not implicate subject-matter 

jurisdiction, i.e., the courts’ statutory or constitutional power 

to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 89 (1998). Because I would dismiss both claims 

under Rule 12(b)(6) only after determining Article III standing, 

I concur in the judgment.

The majority’s exertions to avoid addressing Article III 

standing in the ordinary course are puzzling, given that 

plaintiffs’ standing appears to be straightforward under the 

classic injury-causation-redressability formulation. See Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The majority 

does not dispute that the plaintiffs (“Johnson and Stein”) 

identify concrete and particularized injury from having been 

excluded from the 2012 presidential and vice-presidential 

debates. Maj. Op. at 6 (acknowledging that Johnson and 
2

Stein’s “injuries are clearly pleaded in the Complaint” and are 

“particularized”). The courtstops short of holding that Johnson 

and Stein’s injury is fairly traceable to the defendants’ actions, 

however, see id. at 8 (suggesting they have “not shown any 

injury caused by the antitrust violation”), and also denies that, 

in the (admittedly unlikely) event that they were to succeed on 

the merits of their claims, plaintiffs’ injuries would be 

redressable.

Plaintiffs’ allegations satisfy the latter two standing 

inquiries as readily as they do the first. Johnson and Stein 

allege that the challenged 15 per cent polled-support 

requirement was the direct cause of their injury. Had the MOU 

not imposed that 15 per cent threshold, they would have 

qualified to participate. See Compl. ¶ 83, J.A. 48. Those 

allegations suffice at the pleading stage to state causation. See 

Attias v. CareFirst, Inc., No. 16-7108, slip op. at 15 (D.C. Cir. 

Aug. 1, 2017) (“Article III standing does not require that the 

defendant be the most immediate cause, or even a proximate 

cause, of the plaintiffs’ injuries; it requires only that those 

injuries be ‘fairly traceable’ to the defendant.”). And the 

redressability of Johnson and Stein’s alleged injury flows from 

their theory of causation. If they were to prevail, the court 

could award compensation for the injuries their exclusion 

caused. See Sprint Commc’ns Co. v. APCC Servs., Inc., 554 

U.S. 269, 286-87 (2008); see also Cardenas v. Smith, 733 F.2d 

909, 914 (D.C. Cir. 1984) (“A damage claim, by definition, 

presents a means to redress an injury.”); Renal Physicians 

Ass’n v. U.S. Dep’t of Health and Human Servs., 489 F.3d 

1267, 1276 (D.C. Cir. 2007) (“[A]t the pleading stage, a party 

must make factual allegations showing that the relief it seeks 

will be likely to redress its injury.”).

It is that last element of standing—redressability—that the 

majority cannot swallow, as it anticipates that any court-
3

ordered relief would violate the Commission’s First 

Amendment rights. Maj. Op. at 7. I assume the court is correct 

on that point. See Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995); 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258

(1974). I disagree only with treating the merits of a First 

Amendment defense not yet in issue as an obstacle to standing. 

The majority cites a passing suggestion in Perot v. FEC that, if 

the court were to enjoin presidential debates or the Commission 

on Presidential Debates’ (CPD’s) choice of participants, “there 

would be a substantial argument that the court would itself 

violate the CPD’s First Amendment rights.” 97 F.3d 553, 559 

(D.C. Cir. 1996). Again, I assume as much. But we did not 

identify the First Amendment as an obstacle to standing in 

Perot—nor, for example, did the Supreme Court in Hurley or

Tornillo.

A standing inquiry, especially at the motion-to-dismiss

stage, should not anticipate the merits—neither of the claim 

nor, especially, of a potential defense. A conclusion that 

appellants’ claims cannot be redressed because of a potential 

First Amendment obstacle would be impermissibly “deciding

the merits under the guise of determining the plaintiff[s’] 

standing.” Information Handling Servs., Inc. v. Defense 

Automated Printing Servs., 338 F.3d 1024, 1030 (D.C. Cir. 

2003); see Warth v. Seldin, 422 U.S. 490, 500 (1975) 

(observing that “standing in no way depends on the merits of 

the plaintiff’s contention that particular conduct is illegal”); In 

re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (“In 

reviewing the standing question, we must be ‘careful not to 

decide the questions on the merits for or against the plaintiff, 

and must therefore assume that on the merits the plaintiffs 

would be successful in their claims.’”). Redressability, like any 

other aspect of jurisdiction, “is not defeated . . . by the 

possibility that the averments might fail to state a cause of 
4

action on which petitioners could actually recover.” Bell v. 

Hood, 327 U.S. 678, 682 (1946). The majority explains its 

order of operations by invoking pre-Lexmark cases for 

dismissal on statutory standing grounds “in rare cases where 

[the] jurisdictional, Article III standing inquiry yields grave 

constitutional doubt.” Maj. Op. at 8. But, as noted above, the 

First Amendment concern is not even part of the Article III 

standing inquiry; Johnson and Stein’s standing itself raises no 

grave or doubtful constitutional question. I would therefore

hold that Plaintiffs have Article III standing to bring their 

antitrust claims before I would dismiss them on their merits.

The majority dismisses the complaint on antitrust standing 

grounds because plaintiffs do not allege injury to competition, 

but rather identify harms to themselves that are “simply not 

those contemplated by the antitrust laws.” Maj. Op. at 10. I

agree that the antitrust claim fatally fails to tie the major party 

candidates’ alleged collusion to any anticompetitive harm to an 

identified commercial market or market participant. The 

complaint does not articulate a theory under which trade or 

commerce has been restrained by the MOU. It therefore falls 

outside the ambit of antitrust regulation, the aim of which is to 

promote economic competition. See I PHILLIP E. AREEDA ET 

AL., ANTITRUST LAW ¶ 100a at 3-4 (4th ed. 2014); cf. United 

States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972) 

(“Antitrust laws in general, and the Sherman Act in particular, 

are the Magna Carta of free enterprise.”); N. Pac. Ry. Co. v. 

United States, 356 U.S. 1, 4 (1958) (describing Sherman Act as 

“comprehensive charter of economic liberty”). 

The complaint refers to various “markets,” but the defining 

competitive dynamic of the activities it so labels is political. It 

alleges, for instance, collusion in the “presidential debates 

market,” the “presidential campaign market,” the “electoral 

politics market,” and the “presidential candidates market.” 
5

Compl. ¶¶ 1, 11, J.A. 15, 18. That flaw is not repaired by the 

complaint’s allegations of various ways in which U.S.

presidential campaigns involve a lot of money. The televised 

debates are expensive to stage, generate revenues for venues 

and their host localities, and can boost the fundraising of 

successful participants. See id. ¶¶ 35-41, J.A. 29-33. But “the 

antitrust laws should not regulate political activities ‘simply 

because those activities have a commercial impact.’” Allied 

Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 507 

(1988) (quoting Eastern R.R. Presidents Conf. v. Noerr Motor 

Freight, Inc., 365 U.S. 127, 141 (1961)). Nor is antitrust 

scrutiny triggered every time someone in an activity that 

involves or affects commerce contends that others have agreed 

to act in a way that fails equally to enhance the claimant’s 

access to money. Not every joint business venture is an 

antitrust violation. See Associated Press v. United States, 326 

U.S. 1, 23 (1945) (Douglas, J., concurring). To be actionable, 

an agreement must unduly restrain or monopolize trade or 

commerce. See Standard Oil Co. v. United States, 221 U.S. 1, 

59-62 (1911). 

The majority and I agree that the complaint fails for want 

of any connection between the major party candidates’ alleged 

collusion in planning and restricting their joint debates and 

anticompetitive harm to an identified commercial market. But

I disagree that the deficiency is only one of antitrust standing. 

Because the claim would equally be deficient if the plaintiff 

were the government, which need not prove statutory standing,

I would affirm the dismissal as a failure to state a cognizable 

violation rather than as a statutory standing shortfall. See 

AREEDA, ANTITRUST LAW ¶ 335f at 91.

Part III of the opinion, dismissing Johnson and Stein’s 

First Amendment challenge to their exclusion, also puts the 

merits cart before the Article III standing horse. I would 
6

dismiss this claim, too, for failure to state a claim rather than 

for want of standing. The constitutional allegations plainly fail

the established “state action” requirement. “It is fundamental 

that the First Amendment prohibits governmental infringement 

on the right of free speech.” Rendell-Baker v. Kohn, 457 U.S. 

830, 837 (1982) (emphasis added). Moreover, a candidate 

debate is a forum that, even if run by a public entity, could still 

be nonpublic and impose reasonable, viewpoint-neutral access 

restrictions without running afoul of the First Amendment. See 

Arkansas Educ. Tel. Comm’n v. Forbes, 523 U.S. 666, 677-78 

(1998). 

Both of plaintiffs’ claims lack merit. Before so deciding, 

however, we must determine whether plaintiffs have standing. 

To do so, we must take the allegations of the complaint as true

and assume the validity of the plaintiffs’ legal theory. Mendoza 

v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (citing Holistic 

Candlers and Consumers Ass’n v. FDA, 664 F.3d 940, 943 

(D.C. Cir. 2012)). Under those requisite assumptions (however 

ultimately unavailing the claims might be), plaintiffs here have 

standing to sue. I join Part I but, because this case presents no 

reason to “pretermit the jurisdictional threshold,” Maj. Op. at 

11, I concur only in the judgment.