 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 5, 2019            Decided August 14, 2020

                        No. 18-1281

        COMPETITIVE ENTERPRISE INSTITUTE, ET AL.,
                     APPELLANTS

                              v.

         FEDERAL COMMUNICATIONS COMMISSION,
                     APPELLEE


              On Appeal from Orders of the
           Federal Communications Commission


     Melissa Holyoak argued the cause for appellants. With her
on the briefs were Theodore H. Frank and Sam Kazman.

     Thaila Sundaresan, Counsel, Federal Communications
Commission, argued the cause for appellee. With her on the
brief were Thomas M. Johnson Jr., General Counsel, David M.
Gossett, Deputy General Counsel, and Richard K. Welch,
Deputy Associate General Counsel. Jacob M. Lewis, Associate
General Counsel, entered an appearance.

   Before: HENDERSON and KATSAS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge KATSAS.
                               2
   Dissenting opinion filed by Senior Circuit Judge
SENTELLE.

     KATSAS, Circuit Judge: This appeal involves conditions
imposed by the Federal Communications Commission on a
merger of three cable companies. The conditions regulate in
detail how the merged entity, which we call New Charter, may
provide cable broadband Internet service. Among other things,
the conditions (1) prohibit New Charter from charging
programming suppliers for access to its broadband subscribers,
(2) prohibit New Charter from charging broadband subscribers
based on how much data they use, (3) require New Charter to
provide steeply discounted broadband service to needy
subscribers, and (4) require New Charter to substantially
expand its cable infrastructure for broadband service.

     The appellants include three of New Charter’s customers,
whose bills for cable broadband Internet service increased
shortly after the merger. They contend that the conditions
caused this injury, which would likely be redressed by an order
setting the conditions aside. We hold that these appellants have
standing to challenge the first and third conditions, which we
vacate given the FCC’s refusal to defend on the merits.

                                I

                               A

     The Communications Act of 1934, Pub. L. No. 73-416, 48
Stat. 1064, empowers the FCC to regulate communications by
wire or radio. Title I of the Act, 47 U.S.C. §§ 151–163, gives
the FCC ancillary regulatory authority over any “information
service.” See id. § 153(24). Title II of the Act, id. §§ 201–276,
subjects most providers of a “telecommunications service” to
regulation as common carriers. See id. § 153(11), (50)–(53).
                               3
Title III of the Act, id. §§ 301–399b, provides for regulation of
wireless radio communications.

     Within Title II, section 214(a) prohibits common carriers
from constructing, operating, or acquiring any new or extended
communications line without first obtaining from the FCC “a
certificate that the present or future public convenience and
necessity require or will require the construction, or operation,
or construction and operation, of such additional or extended
line.” 47 U.S.C. § 214(a). Section 214(c) provides that the
FCC “may attach to the issuance of the certificate such terms
and conditions as in its judgment the public convenience and
necessity may require.” Id. § 214(c).

     Title III creates a licensing scheme for wireless radio
communications. Section 301 requires a station license to
make radio transmissions. See 47 U.S.C. § 301. Section 307(a)
requires the FCC to grant any applicant such a license if the
“public convenience, interest, or necessity will be served
thereby.” Id. § 307(a). Section 308 sets forth citizenship,
character, fitness, and technical requirements for holding a
station license. Id. § 308. Section 310(d) prohibits transferring
any license without an FCC finding that “the public interest,
convenience, and necessity will be served” by the transfer, and
it requires transfer applications to be adjudicated as if the
transferee “were making application under section 308.” Id.
§ 310(d).

     The disputed merger conditions involve cable broadband
Internet service, which gives subscribers the ability to send and
receive data over the Internet. The FCC has shifted positions
on whether this is an “information service” subject to
regulation under Title I or a “telecommunications service”
subject to common-carrier regulation under Title II. In a 2002
rulemaking, the agency concluded that cable broadband
                                4
Internet service is not subject to regulation under Title II, In re
Inquiry Concerning High-Speed Access to the Internet over
Cable & Other Facilities, 17 FCC Rcd. 4798, 4802, ¶ 7 (Mar.
15, 2002) (2002 Title II Order), and the Supreme Court upheld
that position, Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005). In 2015, the FCC
reinterpreted Title II to encompass cable broadband Internet
service, but it decided to forbear from requiring a section
214(a) certificate to provide that service. In re Protecting and
Promoting the Open Internet, 30 FCC Rcd. 5601, 5610, 5848–
49, ¶¶ 29, 511 (Apr. 3, 2015) (2015 Title II Order). In 2018,
the FCC again reversed course and concluded that cable
broadband Internet service is not subject to regulation under
Title II. In re Restoring Internet Freedom, 33 FCC Rcd. 311,
312, ¶ 2 (Jan. 4, 2018) (2018 Title II Order). Following Brand
X, this Court upheld that interpretation. Mozilla Corp. v. FCC,
940 F.3d 1, 18–35 (D.C. Cir. 2019) (per curiam).

     The FCC takes an expansive view of its authority to review
license transfers incident to the merger of telecommunications
companies. In particular, the agency thinks itself empowered
to consider not only whether the “construction” or “operation”
of specific cable lines would be in the public interest at the time
of a merger, 47 U.S.C. § 214(a), and not only whether the
merged entity satisfies the requirements for holding radio
licenses “under section 308,” id. § 310(d), but also whether the
merger itself would be in the public interest. See, e.g., In re
Applications of Charter Commc’ns, Inc., Time Warner Cable,
Inc., and Advance/Newhouse P’ship, 31 FCC Rcd. 6327,
6336–39 (May 10, 2016) (New Charter Order). The FCC thus
duplicates the analysis of the Department of Justice in its
review of possible anticompetitive effects. See id. at 6337–38.
But the Commission further considers “diversity, localism,
[and] other public interest considerations” besides antitrust
ones. Id. at 6338. It thus seeks to impose conditions that
                               5
“confirm specific benefits or remedy harms likely to arise from
transactions” under consideration. Id. at 6339. These
conditions often regulate the terms of providing cable
broadband Internet service, even though cable companies have
never had to secure certificates under section 214(a) or licenses
under section 301 in order to provide that service. Unlike the
Justice Department, the Commission can effectively block
mergers without going to court, simply by withholding
approval of the transfer of these licenses.

                               B

    New Charter, officially Charter Communications, Inc.,
was formed by the merger of Charter Communications, Inc.,
Time Warner Cable Inc., and Bright House Networks, LLC.
Each of the merging companies had been engaged in various
communications businesses, including the provision of cable
broadband Internet service. Before the merger, Charter
provided this service to some five million subscribers; Time
Warner, to twelve million; and Bright House, to two million.
New Charter—with about nineteen million subscribers—
would become one of the largest cable broadband Internet
providers in the United States.

     To consummate the merger, the three companies applied
to the FCC under sections 214(a) and 310(d) for permission to
transfer their various cable and radio licenses to New Charter.
These included certificates under section 214(a), cable
television relay service licenses, and various wireless licenses.
The FCC invited public comments on the application, and
responses poured in. The index of filings in the agency docket
spans 47 pages, not counting almost 170,000 comments made
directly on the agency’s website through an online form.

    The FCC ultimately approved the transfer of the licenses.
The agency concluded that the “public interest benefits” of the
                               6
merger would outweigh its “public interest harms,” but only
with six elaborate conditions. New Charter Order, 31 FCC
Rcd. at 6530. The conditions are set forth in an appendix
comprising 24 pages of fine print, including provisions for
compliance, reporting, enforcement, and penalties for
violations. See id. at 6539–62.

    Four of the conditions, which address the provision of
cable broadband Internet service, are at issue here. First, for
seven years, New Charter cannot charge programming
suppliers for access to its network of Internet subscribers. New
Charter Order, 31 FCC Rcd. at 6540–42. Second, for seven
years, New Charter may neither charge Internet subscribers
based on actual data usage nor impose data usage caps. Id. at
6543–44. Third, New Charter must provide Internet service at
steeply discounted prices to at least 525,000 low-income
households within four years. Id. at 6547–49. Fourth, New
Charter must build out its cable infrastructure to offer Internet
service “to at least 2 million additional mass market customer
locations” within five years. Id. at 6544–47. The FCC
reasoned that the first two conditions were necessary to
mitigate potential anti-competitive effects on suppliers of
programs that consumers may watch on the Internet. Id. at
6362–91.      The last two conditions, according to the
Commission, would increase the merger’s public-interest
benefits. Id. at 6504–07, 6528–40.

     Two commissioners dissented. Commissioner Pai voted
to block the merger. He argued that the FCC had “turned the
transaction into a vehicle for advancing its ambitious agenda to
micromanage the Internet economy.” New Charter Order, 31
FCC Rcd. at 6666. He criticized each of the conditions as
either “radical,” addressed to issues unrelated to the merger, or
otherwise arbitrary. See id. at 6666–68. He also objected to
the FCC’s process for crafting the conditions, which he said
                               7
had involved a politicized, closed-door negotiation between the
applicants and the Office of the Chairman. Id. at 6669.
Commissioner O’Rielly voted to approve the merger but
dissented from the conditions. He argued that sections 214(a)
and 310(d) authorize only a narrow review focused on the
transfer of individual licenses, not a review of entire mergers.
Id. at 6671–72. Alternatively, he argued that any merger
conditions must address problems caused by the merger itself,
rather than pre-existing or independent problems. Id. at 6672–
74. And because the requirements for a low-income program
and expanded infrastructure were neither “license-specific” nor
“transaction-specific,” id. at 6672–74, Commissioner O’Rielly
concluded that they “reside somewhere in the space between
absurdity and corruption.” Id. at 6674.

    The merging companies acceded to the conditions and
formed New Charter on May 18, 2016.

                               C

     The appellants are four consumers and a consumer-
advocacy organization. John France, Daniel Frank, Jean-
Claude Gruffat, and Charles Haywood each previously
purchased cable broadband Internet service from one of the
merging companies, and each continues to subscribe to New
Charter. They contend that the merger conditions have caused
their Internet bills to rise. Gruffat also serves on the board of
the Competitive Enterprise Institute, which describes itself as
an organization dedicated to the principles of limited
constitutional government and free enterprise. CEI claims
associational standing based on Gruffat’s board membership.

     CEI filed a comment supporting the merger with the FCC.
It urged the Commission to ensure that any conditions “are
relevant to the particular [license] transfers at issue—not the
merger as a whole.” Competitive Enterprise Institute,
                               8
Comment on Proposed New Charter Merger at 6 (Oct. 13,
2015). CEI further argued that the FCC cannot “impose
conditions to remedy pre-existing harms or harms that are
unrelated to the transaction.” Id. at 8–9. The individual
subscribers did not file comments at that time.

     After the FCC approved the merger, the individual
subscribers and CEI jointly filed a petition for reconsideration,
which sought removal of the four conditions. After the agency
failed to act on the petition within the statutory 90-day
deadline, see 47 U.S.C. § 405(a), the petitioners sought
mandamus to compel it to act, In re Competitive Enter. Inst.,
No. 17-1261 (D.C. Cir. Dec. 12, 2017). One week before oral
argument in this Court, the FCC finally denied reconsideration,
thus mooting the mandamus action. After waiting for two
years to issue an order, the agency offered only four pages of
reasoning. It concluded that the petitioners were procedurally
barred from challenging the conditions and lacked standing to
do so under FCC rules. In re Applications of Charter
Commc’ns, Inc., Time Warner Cable Inc., and
Advance/Newhouse P’ship, 2018 WL 4347182 (Sept. 10,
2018).

    On appeal to this Court, the four subscribers and CEI now
seek review of both the New Charter Order and the order
denying their petition for reconsideration.

                               II

     We begin, as we must, with questions of our own
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93–96 (1998). We hold that the appellants have
properly invoked our statutory jurisdiction and that three of
                                9
them have Article III standing to challenge two of the four
disputed conditions.

                                A

     The Communications Act permits appeals to this Court by
any person “aggrieved” or “adversely affected” by an FCC
order falling into any of five categories, 47 U.S.C. § 402(b)(6),
including orders denying an application to transfer an
“instrument of authorization,” id. § 402(b)(3). As explained
above, the New Charter Order denied the unencumbered
transfer of both section 214 certificates and radio station
licenses. A party is “aggrieved” under section 402(b)(6) “if it
satisfies both the constitutional and prudential requirements for
standing.” New World Radio, Inc. v. FCC, 294 F.3d 164, 169
(D.C. Cir. 2002). Prudential standing is now understood as a
question of “who may invoke the cause of action” at issue.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 130 (2014). That is a forfeitable issue, see id. at 128
n.4; Am. Inst. of Certified Pub. Accountants v. IRS, 804 F.3d
1193, 1199 (D.C. Cir 2015), which the FCC has forfeited by
not contesting it in this case. Thus, if the appellants satisfy the
constitutional standing requirements of Article III, they may
seek review of the New Charter Order under section 402(b)(6).

     The FCC contends that the individual appellants forfeited
any right to seek review of the New Charter Order by not filing
comments in the initial agency proceeding. The FCC reasons
in two steps: first, they could not seek reconsideration because
they failed to file comments earlier in the proceeding; and
second, because they could not properly seek reconsideration
before the agency, they cannot seek judicial review. We reject
the second point and thus need not reach the first.

     The Communications Act provides that “[t]he filing of a
petition for reconsideration shall not be a condition precedent
                              10
to judicial review of any [FCC] order … except where the party
seeking such review (1) was not a party to the proceedings
resulting in such order …, or (2) relies on questions of fact or
law upon which the Commission, or designated authority
within the Commission, has been afforded no opportunity to
pass.” 47 U.S.C. § 405(a). We have held that even a non-party
to FCC proceedings may seek judicial review if the
Commission had an “opportunity to pass” on its claims. Office
of Commc’n of United Church of Christ v. FCC, 779 F.2d 702,
706–07 (D.C. Cir. 1985). And we have adhered to this
precedent despite criticism that it is inconsistent with the
statute’s plain language. WSB, Inc. v. FCC, 85 F.3d 695, 698
n.7 (D.C. Cir. 1996).

     We have further held that the FCC can have an
“opportunity to pass” on a question even if the party seeking
judicial review never raised it with the agency. Time Warner
Entm’t Co., L.P. v. FCC, 144 F.3d 75, 79 (D.C. Cir. 1998). The
FCC has such an opportunity when another party raises the
issue, Bartholdi Cable Co. v. FCC, 114 F.3d 274, 280 (D.C.
Cir. 1997); when a dissenting Commissioner raises the issue,
ICO Glob. Commc’ns (Holdings) Ltd. v. FCC, 428 F.3d 264,
269 (D.C. Cir. 2005); or when the agency addresses it anyway,
EchoStar Satellite L.L.C. v. FCC, 704 F.3d 992, 996 (D.C. Cir.
2013).

     The New Charter subscribers easily clear this hurdle. To
begin, CEI filed comments arguing that the FCC could consider
only whether the transfer of individual licenses was in the
public interest and could not consider issues unrelated to the
merger itself. Likewise, the dissents of Commissioners Pai and
O’Rielly made the same global objections and further criticized
each of the conditions at issue. And the agency itself undertook
to justify each of those conditions. The FCC not only had an
“opportunity to pass” on the conditions, but did pass on each
                                   11
one at length. We therefore reject the FCC’s argument that
section 405(a) bars the individual appellants from seeking
review of the New Charter Order.1

                                   B

     We now turn to constitutional standing, which is necessary
to establish a “case or controversy” within the meaning of
Article III. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). For Article III standing, the appellants “must have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the [appellee], and (3) that is likely to be
redressed by a favorable judicial decision.” Id. An injury in
fact is “an invasion of a legally protected interest that is
concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Id. at 1548 (quotation marks
omitted). The party invoking federal jurisdiction must prove
each of these elements. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).

     Where traceability and redressability depend on the
conduct of a third party not before the court, “standing is not
precluded, but it is ordinarily substantially more difficult to
establish.” Defs. of Wildlife, 504 U.S. at 562 (quotation marks
omitted). The party invoking our jurisdiction must show that
the third party will act “in such manner as to produce causation

     1
       While this point is not critical for the analysis that follows, we
note that the appellants also may seek review of the order denying
their petition for reconsideration. Section 405(b)(2) of the
Communications Act provides that FCC orders denying
reconsideration “may be appealed under section 402(a),” which, for
orders not covered by section 402(b), permits judicial review through
the Hobbs Act, 28 U.S.C. § 2342. The appellants properly invoked
these provisions to seek review of the order denying reconsideration.
                               12
and permit redressability of injury.” Id. A permissible theory
of standing “does not rest on mere speculation about the
decisions of third parties; it relies instead on the predictable
effect of Government action on the decisions of third parties.”
Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).

     In many cases, we have found standing where third-party
conduct has been adequately proven. To pick just a few
examples: In CEI v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990),
we held that a consumer organization had standing to challenge
fuel-efficiency regulations based on evidence that non-party
manufacturers, if given the choice, would be “substantially
likely to respond to market forces” by producing larger
vehicles desired by its members. Id. at 117. In Tozzi v. HHS,
271 F.3d 301 (D.C. Cir. 2001), we held that a manufacturer had
standing to challenge an agency decision classifying a chemical
in its product as a known carcinogen, based on evidence that
third parties would be more likely to buy the product without
the classification. Id. at 307–11. In Teton Historic Aviation
Foundation v. DoD, 785 F.3d 719 (2015) (per curiam), we held
that an organization seeking to buy aircraft parts had standing
to challenge a Department of Defense policy limiting their sale.
Despite the absence of any legal compulsion to sell, we
credited evidence that the Department likely would sell through
a specific contractor, who in turn likely would auction the parts
to the public. See id. at 727–28 (“We have previously found
standing in cases where a third party would very likely alter its
behavior based on our decision, even if not bound by it.”). And
in Energy Future Coalition v. EPA, 793 F.3d 141 (D.C. Cir.
2015), we held that biofuel producers had standing to challenge
a rule prohibiting non-party manufacturers from using biofuel
in emissions testing, because there was “substantial reason to
think that at least some vehicle manufacturers would use”
biofuel if that option were legally permitted. Id. at 144.
                               13
     In considering the likely reaction of third parties, we may
consider a variety of evidence, including “the agency’s own
factfinding,” CEI, 901 F.2d at 114; affidavits submitted by the
parties, Sierra Club v. EPA, 292 F.3d 895, 898–99 (D.C. Cir.
2002); evidence in the administrative record, id. at 900–01;
arguments “firmly rooted in the basic laws of economics,”
United Transp. Union v. ICC, 891 F.2d 908, 912 n.7 (D.C. Cir.
1989); and conclusions in other agency orders and
rulemakings, CEI, 901 F.2d at 115–17.

     As “standing is not dispensed in gross,” the appellants here
must separately prove standing “for each claim” that they seek
to press. Davis v. FEC, 554 U.S. 724, 734 (2008) (cleaned up).
We must therefore separately assess their standing to challenge
each of the disputed conditions.

                               C

     The five appellants raise interrelated theories of standing.
France, Frank, and Haywood argue that the merger conditions
caused higher prices for the Internet service that they buy from
New Charter. In support of that claim, each of them offered
evidence that New Charter raised their Internet charges shortly
after the merger. Gruffat alleges the same injury, but without
evidence of higher bills. Finally, CEI asserts associational
standing based on Gruffat’s board membership and individual
injuries. CEI and Gruffat thus present less evidence for
standing than the other consumers, despite asserting the same
theory of harm. Since all appellants raise the same merits
arguments and seek the same relief, we may assess standing
only for the three individual consumers. See Comcast Corp. v.
FCC, 579 F.3d 1, 6 (D.C. Cir. 2009).
                              14
                               1

     The first challenged condition requires New Charter to
“interconnect” its network “on a settlement-free basis” with
parties supplying data to its subscribers. New Charter Order,
31 FCC Rcd. at 6559. Some background explains the jargon.
As a broadband Internet provider, New Charter connects the
personal devices of individual subscribers to the rest of the
Internet. To do so, it negotiates agreements governing the
exchange of Internet traffic and “the compensation, if any, to
be paid by one party to the other.” Id. at 6375. Agreements
without payments are called “settlement-free.” Id. Many
interconnection agreements are made between broadband
Internet providers and “edge providers” such as Netflix—i.e.,
those who provide content to consumers through the Internet.
See Verizon v. FCC, 740 F.3d 623, 629 (D.C. Cir. 2014). Since
broadband providers allow edge providers to reach their
subscribers, the broadband providers often can extract
payments from edge providers. The disputed condition
prohibits New Charter from doing so.

     The consumers argue that requiring New Charter to use
free interconnection agreements—and thus to forgo revenue
from edge providers—injures them in two ways: by increasing
Internet prices and decreasing Internet quality. The three
individual consumers have provided evidence that their cable
bills increased after the merger. Increased Internet prices are
“certainly an injury-in-fact,” Consumer Fed’n of Am. v. FCC,
348 F.3d 1009, 1012 (D.C. Cir. 2003), and next month’s cable
bill is “certainly impending,” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409 (2013) (cleaned up). In contrast, the
allegations about decreased quality do not pass muster. The
consumers provide no evidence that quality declined after the
merger nor anything else suggesting a significant possibility of
future declines. Moreover, they do not spell out how quality
                               15
might suffer going forward—whether by lower speeds, slower
ping, more frequent outages, or some other measure. For these
reasons, the alleged quality injury is too abstract.

     As for causation and redressability, the consumers propose
a relatively simple causal chain. By requiring New Charter to
forgo revenue from edge providers, the condition caused New
Charter to raise prices on broadband subscribers. And vacating
the condition would redress this injury because New Charter
likely would respond by raising revenue from edge providers
and lowering charges to subscribers.

     To begin, the condition plainly caused New Charter to
forgo revenue from edge providers. Before the merger, Time
Warner, the largest broadband provider among the merging
companies, raised substantial revenue from paid
interconnection agreements. See New Charter Order, 31 FCC
Rcd. at 6377–78, 6585. So did Bright House. Id. at 6377. But
the merger condition prohibits New Charter from using those
same revenue sources.

     It is also clear that the consumers’ bills increased shortly
after the merger. Before the merger, France and Haywood
subscribed to Bright House’s broadband service, and Frank
subscribed to Time Warner’s. Shortly after, New Charter
raised their monthly bills: France’s bill increased about 20
percent, from $84 to $101, Haywood’s about 40 percent, from
$51 to $71; and Frank’s about 5 percent, from $75.99 to
$79.99.

     The consumers also marshal evidence connecting the
increased prices to the merger condition. Dr. Robert Crandall,
a professor in the field of telecommunications economics,
explained the connection based on how pricing works in two-
sided markets. Without the condition, New Charter “would
find it profitable to reduce its subscriber charges somewhat to
                              16
attract more subscribers and thus greater revenues from
interconnection fees.” Appellants’ Add. at 28 (Crandall Decl.).
By prohibiting such revenues, the condition removes this
incentive to lower consumer prices. In other words, pricing in
this market is like a waterbed—push down on one side, and the
other side goes up. Crandall’s analysis, which the FCC does
not meaningfully contest, is “firmly rooted in the basic laws of
economics.” United Transp. Union, 891 F.2d at 912 n.7. And
it tracks analyses by the Supreme Court and the FCC itself.

     In Ohio v. American Express Co., 138 S. Ct. 2274 (2018),
the Supreme Court recently explained pricing dynamics in two-
sided markets. “As the name implies … two-sided [markets]
offer[] different products or services to two different groups
who both depend on the [provider] to intermediate between
them.” Id. at 2280. In such markets, “indirect network effects”
influence product pricing. Id. In the credit card market, for
example, “[a] credit card … is more valuable to cardholders
when more merchants accept it, and is more valuable to
merchants when more cardholders use it.” Id. at 2281. In two-
sided markets, firms “therefore must take these indirect
network effects into account before making a change in price
on either side.” Id.

    The New Charter Order also makes this point. The FCC
explained that broadband Internet providers “operate within a
two-sided market,” with consumers at one end and edge
providers at the other. 31 FCC Rcd. at 6374. Thus, “edge
providers value interconnection with [broadband] providers
more as the providers service more subscribers.” Id. This
conclusion makes sense because New Charter connects
subscribers and edge providers, much as American Express
connects cardholders and merchants. And as Dr. Crandall
explained, lower consumer prices will yield more subscribers,
                              17
which in turn will yield “greater revenues from interconnection
fees.” Appellants’ Add. at 28.

     In 2018, the FCC elaborated on this point in lifting a
regulatory prohibition on paid interconnection agreements
between broadband providers and edge providers. As the
Commission explained: “increased prices from edge providers
are to a potentially significant extent passed through to end
users in the form of lower prices for broadband Internet access
service.” 2018 Title II Order, 33 FCC Rcd. at 466. We upheld
that analysis in Mozilla Corp. See 940 F.3d at 55–56. And
even when the FCC sought to prohibit all paid interconnection
agreements in 2015, it recognized the same relationship
between edge-provider revenue and consumer Internet prices.
See 2015 Title II Order, 30 FCC Rcd. at 5645. For these
reasons, France, Frank, and Haywood have shown a substantial
likelihood that that the prohibition on paid interconnection
agreements caused their cable bills to increase.

     The same evidence also proves redressability. Before the
merger, the companies raised significant revenue from paid
interconnection agreements, and the FCC concluded that New
Charter would continue such agreements if allowed to do so.
New Charter Order, 31 FCC Rcd. at 6378. Moreover, just as
prohibiting paid interconnection agreements would likely
cause broadband prices to rise, permitting those agreements
would likely cause broadband prices to fall. As noted above,
the FCC itself recognized as much in lifting its global ban on
paid interconnection agreements. See 2018 Title II Order, 33
FCC Rcd. at 466. And Dr. Crandall confirmed that these
economic principles have not changed. Thus, a favorable
ruling is likely to redress the consumers’ financial injuries.

    The FCC objects that other factors, such as increased
servicing costs, might have caused the price increases. But the
                              18
agency offers only speculation on this point. In any event, the
subscribers need not show that prohibiting paid interconnection
agreements caused the entirety of the price increases, or even
that it caused price increases of some specific amount. For
standing purposes, even a small financial injury is enough, see
Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir.
2017), and the consumers have shown a substantial likelihood
that their bills are higher because of the prohibition on paid
interconnection agreements.

     The FCC and our dissenting colleague note that New
Charter might not lower consumer prices even if we set aside
the prohibition on paid interconnection agreements. Post, at 4.
That is theoretically possible, but all we require is proof of a
substantial likelihood. As explained above, an entire line of
cases finds redressability, as well as causation, in comparable
circumstances turning on third-party conduct that is voluntary
but reasonably predictable. We concluded that an injury was
redressable based on the likely choices of the manufacturers in
CEI, 901 F.2d at 117, and Energy Future Coalition, 793 F.3d
at 144–45; the buyers in Tozzi, 271 F.3d at 307–10; and the
independent contractor in Teton, 785 F.3d at 126–30. Given
the findings and evidence here, we reach a similar conclusion.

    Our dissenting colleague spots us causation on the front
end but stresses that “causation does not inevitably imply
redressability,” because a “new status quo” may be “held in
place by other forces” besides the government action at issue.
Renal Physicians Ass’n v. HHS, 489 F.3d 1267, 1278 (D.C. Cir.
2007) (citing Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930, 939–40 (D.C. Cir. 2004)); see post, at 2–4. We
have no quarrel with that general proposition. But here, we can
discern no “other forces” that might cause redressability on the
back end to diverge from traceability on the front end. To the
contrary, so far as the record reflects, the same market forces
                               19
that caused New Charter’s predecessor companies to secure
paid interconnection agreements before the merger, and
(according to the FCC) to lower consumer prices as a result,
continue to operate in the two-sided market for broadband
Internet service.

     Our dissenting colleague further argues that Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26
(1976), and Warth v. Seldin, 422 U.S. 490 (1975), preclude a
finding of redressability here. Post, at 5–6. Neither case
distinguished between traceability and redressability, and
neither cuts against finding both causation requirements in this
case. In Eastern Kentucky, the plaintiffs alleged that the
Internal Revenue Service, by affording favorable tax treatment
to certain hospitals, caused the hospitals not to provide free
care to indigent patients. The Court dismissed for lack of
standing because the allegations did not support a plausible
inference that the hospitals would have chosen to provide free
care but for the challenged tax benefit. 426 U.S. at 42–44. In
Warth, the plaintiffs alleged that a zoning ordinance caused
low-income housing to be unavailable. The Court dismissed
for lack of standing because the plaintiffs provided no reason
to conclude that developers would have built such housing but
for the ordinance. 422 U.S. at 505–06. This case involves very
different causal chains, market forces, and evidence. As shown
above, Dr. Crandall’s declaration and the FCC’s own analysis
establish a reasonable likelihood that the prohibition on paid
interconnection agreements by New Charter caused, and still
causes, higher prices for its broadband consumers.

                               2

     The second challenged condition prohibits New Charter
from charging subscribers based on how much data they
transfer to their devices, whether directly or through data caps.
                               20
See New Charter Order, 31 FCC Rcd. at 6543–44. This
requires the Internet equivalent of an all-you-can-eat buffet,
rather than á-la-carte service. The customers persuasively
argue that such pricing forces rare Internet users to subsidize
frequent ones. Commissioner Pai made this objection in
dissent. See id. at 6667 (“The elderly woman on a fixed income
who uses the Internet to exchange e-mail messages with her
grandchildren must pay more so that an affluent family
watching online HD video for many hours each day can pay
less.”). And the majority offered no response.

     Nonetheless, the consumers have failed to prove causation
because there is scant evidence that New Charter would offer
usage-based pricing if allowed to do so. Before the merger, its
predecessor companies rarely offered it.           Charter had
specifically rejected it. See New Charter Order, 31 FCC Rcd.
at 6368. Time Warner offered one plan with usage-based
pricing, but abandoned efforts to expand the practice after
“significant public backlash.” Id. at 6363. Bright House never
offered it. Id. at 6364. Given the lack of evidence that New
Charter’s predecessor companies had offered usage-based
pricing before the condition was imposed, or that New Charter
would offer usage-based pricing if allowed to do so, the
appellants have failed to show traceability or redressability.

                               3

     The third challenged condition requires New Charter to
offer steeply discounted Internet service to qualifying low-
income individuals. Within four years, New Charter must
enroll at least 525,000 households in a discounted broadband
plan featuring 30 megabits-per-second (Mbps) download speed
for only $14.99 a month. New Charter Order, 31 FCC Rcd. at
6547–49. For this program, New Charter must also provide,
among other things, a free modem, a free “self-installation kit,”
                               21
free professional installation if self-installation would be too
hard, a Wi-Fi router at a price set by the FCC, a dedicated
phone number and website, and specially trained customer
service representatives. See id. at 6547–48. To comply with
these requirements, New Charter has offered a “Spectrum
Internet Assist” program since April 2017.

     The appellants have standing to challenge this set of
conditions as likely causing higher prices for them. For
causation and redressability, the appellants highlight Dr.
Crandall’s conclusion that the low-income program will
“likely” cause higher prices for other consumers. Appellants’
Add. 28. Likewise, Commissioner O’Rielly predicted in
dissent that the condition would “result in increases in the cost
of cable and broadband service for every current cable
subscriber of the three companies,” New Charter Order, 31
FCC Rcd. at 6674, and the majority had no response.

     These assessments are “firmly rooted in the basic laws of
economics.” United Transp. Union, 891 F.2d at 912 n.7. The
condition requires price discrimination—charging some
customers less and others more for the same product. As the
Supreme Court has long recognized, price discrimination
operates “for the benefit of some favored persons at the
expense of others.” ICC v. Balt. & Ohio R.R., 145 U.S. 263,
276 (1892). Likewise, the FCC has noted that “[t]he general
effect of [price] discrimination is a redistribution of income
from the customers discriminated against to the price
discriminator or favored customers.” In re AT&T Co.
Revisions to Tariff F.C.C. No. 259, Wide Area Telecommc’ns
Serv. (WATS), 89 F.C.C.2d 889, 896 (Apr. 16, 1982). The
Horizontal Merger Guidelines of the Department of Justice and
the Federal Trade Commission explain why the discrimination
is likely to inflate prices for the disfavored consumers—
because “[a] price increase for targeted customers may be
                              22
profitable even if a price increase for all customers would not
be profitable because too many other customers would
substitute away.” Horizontal Merger Guidelines, § 3 (2010).
Similarly, a leading commentator has explained that price
discrimination allows businesses to “obtain higher rates of
return” from the disfavored customers, H. Hovenkamp,
Federal Antitrust Policy: The Law of Competition and its
Practice, § 14.4 (4th ed. 2011), because charging lower prices
to “more price-sensitive customers” allows firms to “avoid[]
price reductions across the board,” Menasha Corp. v. News Am.
Mktg. In-Store, Inc., 354 F.3d 661, 662 (7th Cir. 2004)
(Easterbrook, J.). In sum, the price discrimination mandated
by the FCC allows New Charter to increase prices for
disfavored customers without having to worry about driving
away low-income customers who are more price sensitive. The
appellants have proven causation.

      What remains is a distinct question of redressability—
whether there is a substantial likelihood that New Charter
would change course if allowed to do so. We think that there
is. To begin, consider the past practices of the merging
companies. Before the conditions were imposed, Charter and
Time Warner offered no discounted services to low-income
customers. Bright House did, but its program was much
narrower than the one now mandated by the FCC. See New
Charter Order, 31 FCC Rcd. at 6528 n.1482. With those facts
in mind, the FCC itself found no reason to think that New
Charter would voluntarily offer up what the agency compelled
it to provide. Id. at 6529.

     Moreover, the terms mandated by the FCC sharply depart
from industry pricing. Beyond free installation and hardware,
the conditions require New Charter to offer broadband service
with 30 Mbps speed for only $14.99 a month. Before the
merger, Time Warner charged $54.99 and Bright House
                                23
charged $74 for similarly fast service. See New Charter Order,
31 FCC Rcd. at 6372 nn.298–99. Moreover, the FCC
catalogued prices from at least seven different broadband
providers, and none offered service anywhere near as fast as
Spectrum Internet Assist at anywhere near the same price. See
id. at 6371–74. We thus think it unlikely that New Charter
would retain the current program voluntarily.

     In arguing to the contrary, the FCC points to Time
Warner’s former “Everyday Low Price” plan, which also cost
$14.99 per month. See New Charter Order, 31 FCC Rcd. at
6528 n.1482. But Spectrum Internet Assist offers download
speeds fifteen times faster, which only tends to confirm that it
is the product of agency compulsion. The FCC also notes that
New Charter, in its license transfer application, offered to
implement a discounted plan for low-income individuals. But
given the FCC’s expansive view of its conditioning power, and
with a $100 billion merger hanging in the balance, one may
wonder “whether voluntary commitments are truly voluntary.”
Id. at 6672 (O’Rielly dissent); see also id. at 6669 (Pai dissent).
In any event, the mandated conditions went far beyond what
New Charter had proposed. See id. at 6529–30. For example,
New Charter proposed “build[ing] upon Bright House
Networks’ broadband program for low-income consumers,”
New Charter Applications, Public Interest Statement, FCC
Dkt. No. 15-149, at 20 (filed June 25, 2015), but it was even
slower than Time Warner’s Everyday Low Price plan, see New
Charter Order, 31 FCC Rcd. at 6528 n.1482.

     In sum, the appellants have shown a substantial likelihood
that New Charter would narrow the Spectrum Internet Assist
program if allowed to do so, which in turn would produce lower
prices for subscribers who, like the individual appellants, are
on short end of the price discrimination. The appellants have
standing to challenge the discounted-services condition.
                                 24
                                 4

     The buildout condition requires New Charter to create
cable infrastructure necessary to offer broadband service “to at
least 2 million additional mass market customer locations”
within five years. New Charter Order, 31 FCC Rcd. at 6544,
as modified by New Charter Applications, Order on
Reconsideration, 32 FCC Rcd. 3238 (2017). This condition
nicely illustrates our dissenting colleague’s point that
traceability on the front end can sometimes diverge from
redressability on the back end. By now, more than four years
after the condition was imposed, New Charter already has built
much of the required infrastructure, and its sunk costs in doing
so cannot be recovered. Regardless of whether New Charter
would have undertaken to build this infrastructure voluntarily,
the consumers offer no reason to think that New Charter will
abandon the project if now allowed to. Likewise, the
consumers offer no reason to think that if New Charter were to
abandon the project at this late date, thus ensuring a wasted
investment, the decision to do so would somehow lower the
prices for its broadband customers.

                        *    *         *   *

     The three individual appellants have standing to challenge
the interconnection and discounted-services conditions, but not
the usage-based pricing and buildout conditions.

                                 III

     On the merits, the appellants raise several troubling
objections. For one thing, the governing statutes focus on
individual licenses, not entire mergers: Section 214(a)
authorizes the FCC to consider whether the “construction” or
“operation” of a specific communications line is in the public
interest at the time of an acquisition, while section 310(d)
                               25
authorizes it to consider whether a proposed transferee meets
the specific criteria for holding a station license under section
308. Moreover, after broadening its focus to the entire merger,
the FCC imposed conditions sweeping even beyond that. For
example, the agency readily acknowledged that providing
discounted service to needy consumers “is not a transaction-
specific benefit,” but it nonetheless required New Charter to do
so as a condition of approving the merger. New Charter Order,
31 FCC Rcd. at 6529. The Supreme Court has described such
non-germane conditions as “an out-and-out plan of extortion.”
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987)
(quotation marks omitted). Commissioner O’Rielly made the
same point in dissent: “Once delinked from the transaction
itself, such conditions reside somewhere in the space between
absurdity and corruption.” 31 FCC Rcd. at 6674. The
conditions target the provision of broadband Internet service,
which is not covered by Title II, much less by section 214(a),
under the FCC’s current interpretation of the Communications
Act. And to insinuate itself into that cable market, the FCC
imposed conditions on the transfer of all licenses held by the
appellants, including wireless licenses with no conceivable
relevance to it.

     We need not resolve these questions, however, for there is
a simpler ground of decision. The lawfulness of the
interconnection and discounted-services conditions are
properly before us, yet the FCC declined to defend them on the
merits. The agency’s only explanation for doing so was its
view that we cannot reach the merits. Having lost on that
question, the FCC has no further line of defense. “Because the
Commission chose not to argue the merits in the alternative, we
have no choice but to vacate the challenged portions of the
order.” Time Warner, 144 F.3d at 82.
                              26
     Two final housekeeping points. First, we set aside only
the two conditions properly subject to review, for no party has
asked us to set aside other portions of the New Charter Order
as inseverable from them. Second, we dismiss as moot the
appeal from the denial of reconsideration, for the appellants
have now obtained full relief from the only two conditions that
they have standing to challenge.

                              IV

    For these reasons, we set aside the interconnection and
discounted-services conditions in the New Charter Order, and
we dismiss the remaining aspects of the appeal for lack of an
appellant with Article III standing.

                                                   So ordered.
     SENTELLE, Senior Circuit Judge, dissenting: I express no
opinion about the merits of this case, and I would not reach the
merits at all because CEI lacks standing to challenge any of the
proposed conditions. I do concur with the majority’s analysis
and conclusion that CEI does not have standing to challenge
the condition concerning charging subscribers based on data
usage or the condition requiring New Charter buildout its cable
infrastructure.

     The Constitution defines a limited role for the federal
courts, namely resolving cases and controversies. U.S. Const.,
art. III, §2, cl. 1; see, e.g., Chi. & Grand Trunk Ry. Co. v.
Wellman, 143 U.S. 339, 345 (1892). Because Article III courts
are courts of limited jurisdiction, we must examine our
authority to hear a case before we can determine the merits.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02
(1998). Standing is a doctrine that helps us “set[] apart the
‘Cases’ and ‘Controversies’ that are of the justiciable sort
referred to in Article III” as opposed to disputes to be handled
by the legislature or the executive. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). In order to satisfy the “irreducible
constitutional minimum of standing,” the plaintiff or the
petitioner must establish three essential elements. Id. It must
demonstrate that it has suffered a “concrete and particularized”
injury that is: 1) “actual or imminent,” id.; 2) caused by, or
fairly traceable to, an act that the litigant challenges in the
instant litigation, see Allen v. Wright, 468 U.S. 737, 752 (1984);
and 3) capable of being redressed by a favorable decision of the
court, see Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38
(1976). Standing ensures judicial intervention for only those
disputes between adverse parties that are “in a form . . . capable
of judicial resolution.” Schlesinger v. Reservists Comm. to
Stop the War, 418 U.S. 208, 218 (1974) (quoting Flast v.
Cohen, 392 U.S. 83, 101 (1968)).

   The majority is perhaps correct that appellants have
demonstrated injury to a legally protected interest, specifically
                                 2
the obtaining of internet services at a lower rate, and may even
have shown causation, but they have most assuredly not shown
that this injury will be redressed by a favorable decision of the
court. After the mandate issues in this case the bills for service
will not thereby be diminished in any way nor will they ever,
absent the volitional act of a third party.

      Redressability and causation are often described as “two
facets of a single causation requirement,” but, importantly,
redressability “examines the causal connection between the
alleged injury and the judicial relief requested,” which might
not be present even if the injury is fairly traceable to the
defendant’s actions. Allen, 468 U.S. at 753 n.19. In other
words, “causation does not inevitably imply redressability.
There might be some circumstances in which governmental
action is a substantial contributing factor in bringing about a
specific harm, but the undoing of the governmental action will
not undo the harm, because the new status quo is held in place
by other forces.” Renal Physicians Ass’n v. U.S. Dep’t of
Health & Human Servs., 489 F.3d 1267, 1278 (D.C. Cir. 2007).
The proposition that judicial intervention will undo the harm is
often less clear in cases where the party inflicting the injury is
a third party not before the court. In those circumstances,
“much more is needed” to show that a plaintiff’s or petitioner’s
injury will be redressed by a court order because the outcome
“hinge[s] on the response of the regulated (or regulable) third
party to the government action or inaction—and perhaps on the
response of others as well.” Lujan, 504 U.S. at 562; see also
E. Ky. Welfare, 426 U.S. at 41–43; Nat’l Wrestling Coaches
Ass’n v. Dep’t of Educ., 366 F.3d 930, 940–41 (D.C. Cir. 2004).
It is vital, then, that plaintiffs harmed by third parties show that
that the dispute be one “capable of judicial resolution,” and that
it is “likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Bennett v. Spear,
                               3
520 U.S. 154, 167 (1997); see also E. Ky. Welfare, 426 U.S. at
38.

     In National Wrestling Coaches Association v. Department
of Education, we articulated two situations where a court order
could be said to redress injuries inflicted by third parties, but
those are narrow circumstances. The first being when “the
intervening choices of third parties are not truly independent of
government policy.” Nat’l Wrestling, 366 F.3d at 941. A third
party’s actions are not “truly independent” when the conduct
would be illegal absent the government’s policy. Id. There are
instances when those facts are present, such as when a party is
injured by a third party through increased economic
competition when that third party would not have been
permitted to enter the market in question absent a change in
government policy. Inv. Co. Inst. v. Camp, 401 U.S. 617, 620
(1971). Another example was when a candidate for political
office sued the federal government when a city prevented him
from running in a nonpartisan, general election because the city
could not change its election format without approval from the
federal government under the Voting Rights Act. LaRoque v.
Holder, 650 F.3d 777, 790–91 (D.C. Cir. 2011).

     The second is when “the record presented substantial
evidence of a causal relationship between the government
policy and the third-party conduct, leaving little doubt as to
causation and the likelihood of redress.” Nat’l Wrestling, 366
F.3d at 941 (emphasis added). There was such evidence in
Tozzi v. United States Department of Health and Human
Services because the plaintiff submitted affidavits and other
record evidence tying third-party decisions to stop carrying the
plaintiff’s product to the government’s change in regulations.
271 F.3d 301, 308–09 (D.C. Cir. 2001). Similarly, in Block v.
Meese, the plaintiff was injured by third parties not purchasing
his film, but he introduced record evidence, including affidavits
                                 4
from potential customers explaining that they had declined to
purchase the film because the Department of Justice had
labeled it political propaganda. 793 F.2d 1303, 1308 (D.C. Cir.
1986).

     In this case, the injury is the increased price associated
with purchasing New Charter’s services. But, as noted above,
our decision will not reduce that price. New Charter, the third
party whose actions are implicated in this case, may reduce the
price voluntarily, but the voluntary actions of a third party are
not enough to establish redressability, especially when the
plaintiff introduces no evidence to support its allegations about
what that third party is likely to do. The only evidence CEI
cites in its brief is the idea that “the competitive market would
restrict the cost increases to consumers.” Appellant Br. at 41.
In support of that argument, CEI relies on statements made by
Commissioner O’Reilly. There is no reference to statements
made by New Charter or anyone with knowledge about the
increase in price. For all we know, New Charter may be
satisfied with the present rates or reluctant to rock a boat that
is apparently sailing profitably.

     The majority roots its conclusion of redressability in its
confidence that the “basic laws of economics” will compel
New Charter to provide appellants desired relief. Majority Op.
at 16–18. I am not so sanguine. In the nontheoretical world,
New Charter, which would apparently have standing to do so,
did not bring this action. Even when CEI brought the action,
New Charter made no move to intervene or even file an amicus
brief on behalf of CEI. All this leads me to the conclusion that
the majority’s finding of third-party redressability rests on
speculation. This, in my view, leads to the broader conclusion
that the use of the adverb “likely” in previous discussions of
redressability refers to the likely result of the court’s judgment,
not the likely volitional act of third parties not before the court.
                               5
This reading is not only consistent with the Article III
requirement of case or controversy but also provides a clear
delineation of jurisdiction not requiring speculation as to the
“likely” responses to the court’s judgment of independent
actors.

     Significantly, neither of the cases cited by the majority in
its discussion of “basic laws of economics” uses that term to
support a finding of third-party-based redressability. In United
Transportation Union v. ICC, our use of the term was part of a
discussion that led to a finding of no standing. 891 F.2d 908,
912 n.7, 913–15 (D.C. Cir. 1989). In the Supreme Court’s
discussion of economic principles in Ohio v. American Express
Co., the Court was considering a question that had nothing to
do with standing. __ U.S. __, 138 S. Ct. 2274, 2281–82 (2018).
Under the majority’s approach, instead of being in a situation
similar to that of Block or Tozzi, where we could say that the
court order would likely redress the injury, we are left to guess
what a large corporation, which just underwent major
restructuring, would do. We are in much the same situation
outlined in Simon v. Eastern Kentucky Welfare Rights
Organization. In that case, the plaintiffs were injured when
third-party hospitals denied service but argued that a change to
the IRS’s policy, to make it more specific and restrictive, would
discourage those hospitals from denying services. 426 U.S. at
30–34, 42. The Supreme Court ultimately determined it was
“speculative whether the desired exercise of the court’s
remedial powers in this suit would result in the availability to
respondents of such services” because hospitals might continue
to deny service to patients who could not pay for other
economic reasons. Id. at 42–43. Just so in this case, we are left
to speculate whether the desired exercise of our remedial power
would in itself result in the availability of less expensive
services.
                                 6
     The Supreme Court has also relied on the same reasoning
regarding redressability when the question was about the
outcome if the Court lifted a restrictive measure, rather than
imposing one. In Warth v. Seldin, the city adopted a zoning
ordinance that dictated “lot size, setback, floor area, and
habitable space” and enforced it against developers that
plaintiffs alleged “had the consequence of precluding the
construction of housing suitable to their needs at prices they
might be able to afford.” 422 U.S. 490, 495, 504 (1975). While
the Supreme Court recognized there can be standing “[w]hen a
governmental prohibition or restriction imposed on one party
causes specific harm to a third party,” in Warth, it was likely
that the plaintiffs’ inability to find affordable housing was “the
consequence of the economics of the area housing market” and
not the zoning ordinance. Id. at 505–06. Moreover, the
plaintiffs relied “on little more than the remote possibility,
unsubstantiated by allegations of fact, that their situation might
have been better had respondents acted otherwise, and might
improve were the court to afford relief.” Id. at 507. All told,
there was not enough for the Court to find that the plaintiffs
had standing.         Id. at 508.         CEI presents similarly
unsubstantiated allegations about the likely effect of a court
order in this case.

     The majority’s citations support the proposition that
probability about the actions of a third party are enough to
demonstrate causation for standing purposes. But causation
and redressability are not the same inquiry. In this case there
is insufficient evidence to show that the injury to the consumer-
appellants would be redressed if this court were to order the
vacation of the conditions imposed by the government on New
Charter. It may be that New Charter would take actions
beneficial to the appellants, but it is not the case that this court
can redress their injuries. I respectfully dissent.
