United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 10, 2020                Decided March 13, 2020

                         No. 18-5239

       CAMPAIGN LEGAL CENTER AND DEMOCRACY 21,
                     APPELLANTS

                               v.

           FEDERAL ELECTION COMMISSION, ET AL.,
                       APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:16-cv-00752)


    Tara Malloy argued the cause for appellants. With her on
the briefs were Paul M. Smith, Megan P. McAllen, Mark P.
Gaber, Fred Wertheimer, and Donald J. Simon. Joseph G.
Hebert entered an appearance.

    Stuart C. McPhail, Adam J. Rappaport, and Laura C.
Beckerman were on the brief for amicus curiae Citizens for
Responsibility and Ethics in Washington in support of plaintiffs-
appellants.

    Haven G. Ward, Attorney, Federal Election Commission,
argued the cause for appellee. With her on the brief were Kevin
Deeley, Associate General Counsel, and Kevin P. Hancock,
                              -2-

Acting Assistant General Counsel. Charles P. Kitcher and
Tanya Senanayake, Attorneys, entered appearances.

     George J. Terwilliger III and Nathan R. Pittman were on
the brief for intervenors-appellees F8, LLC, et al.

   Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed PER CURIAM.

   Concurring Opinion filed by Senior Circuit Judge
EDWARDS.

     PER CURIAM: The Federal Election Commission dismissed
three administrative complaints alleging violations of the
Federal Election Campaign Act’s disclosure requirements.
Plaintiffs Campaign Legal Center and Democracy 21 contend
that the dismissals were “contrary to law.” 52 U.S.C.
§ 30109(a)(8)(C). The district court disagreed and granted
summary judgment for the Commission. Campaign Legal Ctr.
v. FEC, 312 F. Supp. 3d 153, 166 (D.D.C. 2018). Because the
Commission provided a reasonable basis for the dismissals, we
affirm the court’s grant of summary judgment.

                               I

     As the Supreme Court has repeatedly declared, the
electorate has an interest in knowing “where political campaign
money comes from and how it is spent by the candidate.”
Buckley v. Valeo, 424 U.S. 1, 66 (1976) (internal quotation
marks omitted); see McCutcheon v. FEC, 572 U.S. 185, 223
(2014). To that end, the Federal Election Campaign Act
(FECA) imposes disclosure requirements on those who give and
spend money to influence elections. The “straw donor”
                                -3-

provision, 52 U.S.C. § 30122, is designed to ensure accurate
disclosure of contributor information. It provides that “[n]o
person shall make a contribution in the name of another person
or knowingly permit his name to be used to effect such a
contribution, and no person shall knowingly accept a
contribution made by one person in the name of another
person.” FECA also imposes distinct disclosure requirements
on organizations that qualify as “political committees.” Id.
§§ 30102, 30103, 30104; see id. § 30101(4) (defining “political
committee”).

     Any person may file a complaint alleging a violation of
FECA with the Federal Election Commission.                    Id.
§ 30109(a)(1). After considering the complaint and any
responses, the Commission opens an investigation when four of
its six members find “reason to believe that a person has
committed, or is about to commit, a violation” of FECA. Id.
§ 30109(a)(2). If the Commission dismisses a complaint, FECA
provides a cause of action for “[a]ny party aggrieved” by the
dismissal. Id. § 30109(a)(8)(A). If the court finds the dismissal
to be “contrary to law,” it “may direct the Commission to
conform” with its ruling “within 30 days.” Id. § 30109(a)(8)(C).

     Between August 2011 and April 2015, the plaintiffs filed
five administrative complaints with the Commission. See id.
§ 30109(a)(1). Each complaint alleged that various individuals
made political contributions to Super PACs by using closely
held corporations and limited liability companies (LLCs) as
straw donors, thereby violating § 30122.1 Four of the


    1
       “A PAC is a business, labor, or interest group that raises or
spends money in connection with a federal election, in some cases by
contributing to candidates. A so-called ‘Super PAC’ is a PAC that
makes only independent expenditures and cannot contribute to
candidates.” McCutcheon, 572 U.S. at 193 n.2.
                              -4-

complaints also alleged that those corporate entities violated
FECA by failing to register and file reports as political
committees. See id. §§ 30102, 30103, 30104.

     The Commission’s General Counsel issued reports on the
five complaints. For four complaints, the General Counsel
recommended that the Commission find reason to believe that
a violation of the straw donor provision (§ 30122) had occurred,
but that it should take no action concerning the alleged
violations of the political committee provisions (§§ 30102,
30103, 30104). For the fifth complaint, the General Counsel did
not recommend that the Commission find reason to believe that
any violation of FECA had occurred. In February 2016, the
commissioners deadlocked -- three votes to three -- on whether
to open an investigation into any of the complaints. The
commissioners then voted unanimously to dismiss all five
complaints.

     The three “controlling” commissioners who voted against
opening an investigation issued a statement of reasons regarding
their votes, which, under our case law, “necessarily states the
agency’s reasons for acting as it did.” FEC v. Nat’l Republican
Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). The
commissioners explained that, “in an exercise of the
Commission’s prosecutorial discretion,” they declined to find
reason to believe a violation of § 30122 occurred. Statement of
Reasons of Chairman Petersen and Commissioners Hunter and
Goodman (Statement of Reasons) at 14 (J.A. 160).

    The controlling commissioners described the application of
§ 30122 to closely held corporations and corporate LLCs as a
question of first impression, noting that, until the Supreme
Court’s decision in Citizens United, federal law had
categorically prohibited corporate contributions. See Citizens
United v. FEC, 558 U.S. 310 (2010); SpeechNow.org v. FEC,
                               -5-

599 F.3d 686 (D.C. Cir. 2010). They expressed concern that
Commission precedent and regulations provided inadequate
guidance regarding how § 30122 would be applied to closely
held corporations and corporate LLCs. In light of this
uncertainty, they said, pursuing enforcement in these cases
would be “manifestly unfair,” Statement of Reasons at 8 (J.A.
154), and in tension with “principles of due process, fair notice,
and First Amendment clarity,” id. at 2 (J.A. 148). When
evaluating future straw donor allegations in similar factual
contexts, the controlling commissioners planned to focus on
“whether funds were intentionally funneled through a closely
held corporation or corporate LLC for the purpose of making a
contribution that evades the Act’s reporting requirements.” Id.
at 12 (J.A. 158).

     The controlling commissioners also briefly discussed the
political committee allegations. They explained that the General
Counsel did not recommend finding reason to believe with
respect to those allegations and, in any event, the complaints
were best analyzed under the straw donor provision rather than
the political committee provisions.

     The plaintiffs filed suit against the Commission,
challenging the dismissals of their administrative complaints as
contrary to law. See 52 U.S.C. § 30109(a)(8)(A), (C). The
district court dismissed two of the matters for lack of standing.
Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 125-26
(D.D.C. 2017). As to the remaining three, the district court
granted summary judgment for the Commission, holding that the
dismissals were not contrary to law. Campaign Legal Ctr., 312
F. Supp. 3d at 166.

    The plaintiffs appeal the district court’s grant of summary
judgment. Our review is de novo. FEC v. Craig for U.S.
Senate, 816 F.3d 829, 834 (D.C. Cir. 2016).
                                -6-

                                 II

    We begin with the question of standing. The plaintiffs are
both nonprofit, nonpartisan organizations dedicated to
supporting and enforcing campaign finance laws. To further its
mission, Campaign Legal Center participates in “public
education, litigation, regulatory practice, and legislative policy.”
Ryan Decl. at 2. Similarly, Democracy 21 “conducts public
education efforts, participates in litigation,” and undertakes
“advocacy efforts.”       Wertheimer Decl. at 1.            Neither
organization engages in partisan political activity.

     Plaintiffs rely on the doctrine of informational standing to
“satisfy the ‘irreducible constitutional minimum’ of Article III
standing: injury-in-fact, causation, and redressability.” Shaw v.
Marriott Int’l, Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992)). The Commission contends that plaintiffs do not allege
a cognizable injury-in-fact because they are not deprived of
information that will be used “for personal voting or political
participation.” FEC Br. 21. In the Commission’s view,
“[n]onprofits that cannot vote, have no members who vote,” and
do not “engage in partisan political activity do not suffer a
particular injury” when deprived of access to campaign finance
disclosures. Id.

     We disagree. “The law is settled that a denial of access to
information qualifies as an injury in fact where a statute (on the
claimants’ reading) requires that the information be publicly
disclosed and there is no reason to doubt their claim that the
information would help them.” Envtl. Def. Fund v. EPA, 922
F.3d 446, 452 (D.C. Cir. 2019) (internal quotation marks
omitted); see FEC v. Akins, 524 U.S. 11, 21 (1998). The
plaintiffs allege violations of FECA provisions that require
accurate disclosure of contributor information, 52 U.S.C.
                               -7-

§ 30122, and the filing of public reports by political committees,
id. §§ 30102, 30103, 30104. There is “no reason to doubt” that
the disclosures they seek would further their efforts to defend
and implement campaign finance reform. See Friends of
Animals v. Jewell, 824 F.3d 1033, 1041 (D.C. Cir. 2016)
(quoting Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir.
2002)); see generally Ryan Decl.; Wertheimer Decl. Finally, the
plaintiffs’ injury is “fairly traceable” to the Commission’s
dismissals of the complaints, and it is likely that the injury will
be “redressed by a favorable decision” of this court. Lujan, 504
U.S. at 560-61 (internal quotation marks and alterations
omitted).

    Accordingly, plaintiffs have Article III standing to
challenge the Commission’s dismissals of their complaints.

                                III

     The Commission urges affirmance of the district court’s
grant of summary judgment on two grounds. First, it relies on
this court’s recent opinion in Citizens for Responsibility and
Ethics in Washington v. FEC (CREW), 892 F.3d 434 (D.C. Cir.
2018). CREW held that the Commission’s dismissal of an
administrative complaint in the exercise of its prosecutorial
discretion was not judicially reviewable, id. at 439 (citing
Heckler v. Chaney, 470 U.S. 821, 830 (1985)), and the
Commission argues that the dismissals at issue here are also
unreviewable exercises of prosecutorial discretion. Second, and
in the alternative, the Commission argues that the dismissals
were not contrary to law. See 52 U.S.C. § 30109(a)(8)(C).

     The Commission’s reviewability argument is complicated.
See Concurring Opinion of Senior Judge Edwards. The
Commission’s alternative argument is not. And because
reviewability is not a jurisdictional issue, we will proceed
                               -8-

directly to that alternative. See PETA v. Dep’t of Agric., 797
F.3d 1087, 1097-98 (D.C. Cir. 2015).

    As noted above, this court reviews the Commission’s
dismissal of an administrative complaint under the “contrary to
law” standard. 52 U.S.C. § 30109(a)(8)(C). The Commission’s
decision is contrary to law “if (1) the FEC dismissed the
complaint as a result of an impermissible interpretation of the
Act, or (2) if the FEC’s dismissal of the complaint, under a
permissible interpretation of the statute, was arbitrary or
capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d
156, 161 (D.C. Cir. 1986) (citations omitted). In this deferential
inquiry, we ask only whether the Commission’s decision was
“sufficiently reasonable to be accepted.” FEC v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (internal
quotation marks omitted).

                                A

    We conclude that the Commission (through the statement
of the controlling commissioners) provided a sufficiently
reasonable basis for its decision not to investigate plaintiffs’
straw donor allegations.

     The controlling commissioners did not dispute that § 30122
applies to closely held corporations and corporate LLCs. See
Statement of Reasons at 12 (J.A. 158). We agree that it does.
The controlling commissioners’ reasoning for nonetheless
dismissing the complaints was, in the plaintiffs’ own words,
“largely premised on the contention that the administrative
complaints presented ‘an issue of first impression’ in light of the
Citizens United and SpeechNow rulings and the ‘new’ corporate
contributions those rulings authorized.” Pls. Br. 42 (quoting
Statement of Reasons at 1-2 (J.A. 147-48)).
                              -9-

     The commissioners explained that “past Commission
decisions regarding funds deposited into corporate accounts may
be confusing in light of [those] recent legal developments.”
Statement of Reasons at 2 (J.A. 148). In their view,
“Commission precedent treat[ed] funds deposited in a corporate
account as the corporation’s funds, even if the corporation’s
owner could legally convert them into his or her own personal
funds. Consequently, when such funds have been contributed to
a political committee, the Commission has concluded that the
corporation -- and not the individual(s) owning the corporation
-- made the contribution.” Id. at 9 (J.A. 155); see, e.g., First
General Counsel’s Report at 33-34 (Oct. 18, 1996), MUR 4313.

     The commissioners thought that Commission regulations
may also have confused regulated parties. The only regulations
specifically governing LLCs require partnership LLCs and
single-member corporate LLCs to attribute their contributions to
their individual members. See 11 C.F.R. § 110.1(g)(2), (4); id.
§ 110.1(e). But they provide no such instruction to other
corporate LLCs.

     On this basis, it was reasonable for the controlling
commissioners to conclude that the respondents “were not
provided adequate notice that their conduct could potentially
violate” the straw donor provision. Statement of Reasons at 11
(J.A. 157).

      The plaintiffs argue that the Commission’s existing
regulations and precedents are distinguishable from the straw
donor violations alleged here. But we “must give deference to
an agency’s interpretation of its own precedents.” Pac. Coast
Supply, LLC v. NLRB, 801 F.3d 321, 333 (D.C. Cir. 2015)
(internal quotation marks and alterations omitted). Moreover,
it is undisputed that there are no Commission precedents that
have applied the straw donor provision (or distinguished the
                                -10-

cited regulations and earlier precedents) to contributions made
by corporate entities in the post-Citizens United era. And as this
court has said: “In the absence of prior [direct] Commission
precedent[,] . . . judicial deference to the agency’s initial
decision or indecision [is] at its zenith.” Democratic Cong.
Campaign Comm. v. FEC, 831 F.2d 1131, 1135 n.5 (D.C. Cir.
1987). According that deference here, we conclude that the
decision to dismiss the straw donor allegations was not arbitrary
or capricious.2

                                  B

       The Commission also provided a reasonable basis for its
decision not to investigate plaintiffs’ political committee
allegations. See 52 U.S.C. §§ 30102, 30103, 30104. The
Commission’s General Counsel concluded that, “[b]y definition,
. . . an entity can be a conduit or a political committee, but not
both” and determined that “[t]he record here provides reason to
believe that [the corporate entities] acted as conduits [in
violation of § 30122] . . . not . . . [as] political committees.”
First General Counsel’s Report at 14 (June 6, 2012), MURs
6487-88 (J.A. 120). The controlling commissioners agreed that
§ 30122 was the applicable provision for the plaintiffs’
allegations, although they declined to open an investigation
under § 30122 for the reasons stated above. See Statement of


    2
       The plaintiffs further maintain that the purpose-based standard
the controlling commissioners said they would apply in evaluating
future alleged § 30122 violations is unduly narrow. But we have no
occasion to address that standard here because the controlling
commissioners’ “statement of reasons would not be binding legal
precedent or authority for future cases.” Common Cause v. FEC, 842
F.2d 436, 449 n.32 (D.C. Cir. 1988); see id. (“The statute clearly
requires that for any official Commission decision there must be at
least a 4-2 majority vote.”).
                              -11-

Reasons at 6 n.36 (J.A. 152). Indeed, the plaintiffs also agree
that an entity can be a conduit under § 30122 or a political
committee under §§ 30102-04, but not both. Recording of Oral
Arg. at 2:35.

     Because the controlling commissioners’ reliance on the
General Counsel’s recommendation and analysis of the relevant
statutory provisions was “sufficiently reasonable to be
accepted,” we will not disturb their decision. Democratic
Senatorial Campaign Comm., 454 U.S. at 39 (internal quotation
marks omitted).

                               IV

     For the foregoing reasons, the judgment of the district court
is affirmed.

                                                     So ordered.
    EDWARDS, Senior Circuit Judge, concurring: I agree that
we should affirm the judgment of the District Court for the
reasons set forth in the opinion for the court. I write separately,
however, to express my concerns over the position taken by the
Federal Election Commission (“FEC” or “Commission”)
suggesting that the matter before this court is not subject to
judicial review. The FEC argues that, because the Statement of
Reasons given by the three “controlling” Commissioners who
voted to dismiss Appellants’ complaints said that the dismissal
was an exercise of “prosecutorial discretion,” Appellants’
challenge is entirely beyond judicial scrutiny. The Commission
is wrong.

     The Commission’s position flies in the face of the terms
and purpose of the Federal Election Campaign Act (“FECA”).
It is also flatly at odds with the Supreme Court’s decision in
FEC v. Akins, 524 U.S. 11 (1998). And it ignores this court’s
decisions in Chamber of Commerce v. FEC, 69 F.3d 600 (D.C.
Cir. 1995), Democratic Congressional Campaign Committee
v. FEC (DCCC), 831 F.2d 1131 (D.C. Cir. 1987), and Orloski
v. FEC, 795 F.2d 156 (D.C. Cir. 1986).

                            *****
    In advancing the claim that Appellants’ complaints are not
subject to judicial review, the FEC relies on Citizens for
Responsibility & Ethics in Washington v. FEC (CREW), 892
F.3d 434 (D.C. Cir. 2018). The majority decision in CREW
states that the FEC’s refusal to institute enforcement
proceedings in that case was not subject to judicial review
because the Commission purported to act pursuant to
prosecutorial discretion. In reaching this result, the majority in
CREW determined that the Supreme Court’s decision in
Heckler v. Chaney, 470 U.S. 821 (1985), was controlling. 892
F.3d at 439. It is clear, however, that Heckler v. Chaney does
not control the disposition of this case.
                              2
       “From the beginning,” the Supreme Court has
   recognized that “judicial review of a final agency action
   by an aggrieved person will not be cut off unless there
   is persuasive reason to believe that such was the
   purpose of Congress.” Bowen v. Mich. Acad. of Family
   Physicians, 476 U.S. 667, 670 (1986). The “generous
   review provisions” of the APA, which provide a cause
   of action “not only for review of ‘agency action made
   reviewable by statute’ but also for review of ‘final
   agency action for which there is no other adequate
   remedy in a court,’” “embod[y this] basic
   presumption.” Abbott Labs. v. Gardner, 387 U.S. 136,
   140–41 (1967) (quoting 5 U.S.C. § 704), abrogated on
   other grounds by Califano v. Sanders, 430 U.S. 99
   (1977); see also City of Rochester v. Bond, 603 F.2d
   927, 931 (D.C. Cir. 1979) (noting that the presumption
   of reviewability is “codified” in APA Section 702).
   And,      “[b]ecause     the    presumption     favoring
   interpretations of statutes to allow judicial review of
   administrative action is well-settled,” Congress is
   assumed to “legislate[] with knowledge of [it].”
   Kucana v. Holder, 558 U.S. 233, 251–52 (2010).
   Consequently, whether a party challenging agency
   action claims jurisdiction and a cause of action based
   on (1) provisions in an agency’s authorizing or enabling
   statute, (2) 28 U.S.C. § 1331 and the APA, (3) 28
   U.S.C. § 1331 and an implied cause of action derived
   from the Constitution, or (4) some combination of these
   and other special federal question jurisdictional
   statutes, a reviewing court begins with the “strong
   presumption” that Congress intends judicial review.

EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW 188-
89 (3d ed. 2018) (alterations in original).
                                3
    The Supreme Court’s decision in Heckler v. Chaney, 470
U.S. 821 (1985), enforces a bar against judicial review of
agency action “committed to agency discretion by law,” as
codified in § 701(a)(2) of the APA. This bar reflects a “very
narrow exception” to the presumption of reviewability.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
410 (1971). And the exception applies only “in those rare
instances where statutes are drawn in such broad terms that in
a given case there is no law to apply.” Id. In other words, “even
when Congress has not affirmatively precluded judicial
oversight, ‘review is not to be had if the statute is drawn so that
a court would have no meaningful standard against which to
judge the agency’s exercise of discretion.’” Webster v. Doe,
486 U.S. 592, 599-600 (1988) (quoting Heckler v. Chaney, 470
U.S. 821, 830 (1985)).

        A variation of the no-law-to-apply test controls
    when an agency decides not to undertake an individual
    enforcement action. In Heckler v. Chaney, 470 U.S. 821
    (1985), the Supreme Court reasoned that an “agency is
    far better equipped than the courts to deal with the many
    variables involved in the proper ordering of its
    priorities” regarding enforcement actions. Id. at 831–
    32. Looking to the common-law tradition predating the
    APA, the Court concluded that an agency’s decision not
    to take an enforcement action should be presumed to be
    immune from judicial review. It emphasized, however,
    that such a “decision is only presumptively
    unreviewable; the presumption may be rebutted where
    the substantive statute has provided guidelines for the
    agency to follow in exercising its enforcement powers.”
    Id. at 832–33.

EDWARDS & ELLIOTT, supra, at 195.
                               4
     What is noteworthy here is that the Supreme Court has
made it clear that the commands of Heckler v. Chaney,
regarding the reviewability of agency enforcement actions, do
not apply to matters in which a complainant seeks review of
Commission actions under the Federal Election Campaign Act.
In FEC v. Akins, 524 U.S. 11 (1998), the FEC determined that
the American Israel Public Affairs Committee was not a
“political committee” that was required to make disclosures
regarding its membership, contributions, and expenditures as
would otherwise be required by the FECA. The Supreme Court
held that a group of voters had standing to challenge the
Commission’s decision and remanded the case for further
proceedings before the FEC. Critically, the Supreme Court
flatly rejected the Commission’s claim that the voters’
challenge should be dismissed as unreviewable pursuant to
Heckler v. Chaney.

   The decision in Akins first noted that

   Congress has specifically provided in FECA that “[a]ny
   person who believes a violation of this Act . . . has
   occurred, may file a complaint with the Commission.”
   § 437g(a)(1). It has added that “[a]ny party aggrieved
   by an order of the Commission dismissing a complaint
   filed by such party . . . may file a petition” in district
   court seeking review of that dismissal. § 437g(a)(8)(A).
   History associates the word “aggrieved” with a
   congressional intent to cast the standing net broadly—
   beyond the common-law interests and substantive
   statutory rights upon which “prudential” standing
   traditionally rested.

524 U.S. at 19 (alterations in original). The Court in Akins then
went on to make it clear that the FECA is explicit in indicating
that Congress meant to alter the traditional view that agency
                               5
enforcement decisions are not subject to judicial review. On
this point, Akins says:

        [T]he FEC argues that we should deny respondents
   standing because this case involves an agency’s
   decision not to undertake an enforcement action—an
   area generally not subject to judicial review. In Heckler,
   this Court noted that agency enforcement decisions
   “ha[ve] traditionally been ‘committed to agency
   discretion,’” and concluded that Congress did not
   intend to alter that tradition in enacting the APA. 470
   U.S., at 832, cf. 5 U.S.C. § 701(a) (courts will not
   review agency actions where “statutes preclude judicial
   review,” or where the “agency action is committed to
   agency discretion by law”). We deal here with a statute
   [, the FECA,] that explicitly indicates the contrary.

      In sum, respondents, as voters, have satisfied both
   prudential and constitutional standing requirements.
   They may bring this petition for a declaration that the
   FEC’s dismissal of their complaint was unlawful. See 2
   U.S.C. § 437g(a)(8)(A).

524 U.S. at 26 (second alteration in original) (emphasis added)
(citation omitted).

    The Supreme Court’s decision in Akins could not be clearer
in saying that the presumption of nonreviewability under
Heckler v. Chaney has no application in actions arising under
the FECA. The decision in CREW appears to suggest that Akins
is distinguishable, see CREW, 892 F.3d at 438 n.6, 441 n.11,
but, respectfully, this suggestion is not sustainable. Akins does
not say that a complaint is not subject to judicial review when
the Commission purports to invoke prosecutorial discretion in
dismissing the complaint. Just as we see in this case, a
                                6
Commission decision may survive review. However, Akins
does not say that disputes of the sort at issue in this case escape
review merely because three FEC Commissioners purported to
act pursuant to prosecutorial discretion. Indeed, as noted above,
the Supreme Court in Akins plainly rejected the FEC’s
argument that challenges arising under the FECA should be
subject to Heckler v. Chaney. Again, the critical language in
Akins is this:

    In Heckler, this Court noted that agency enforcement
    decisions “ha[ve] traditionally been ‘committed to
    agency discretion,’” and concluded that Congress did
    not intend to alter that tradition in enacting the APA.
    470 U.S., at 832, cf. 5 U.S.C. § 701(a) (courts will not
    review agency actions where “statutes preclude judicial
    review,” or where the “agency action is committed to
    agency discretion by law”). We deal here with a statute
    [, the FECA,] that explicitly indicates the contrary.

524 U.S. at 26 (first alteration in original) (emphasis added).
CREW does not address this.

    It is also noteworthy that, in its brief to this court in CREW,
the Commission acknowledged that when FEC Commissioners
purport to invoke prosecutorial discretion in dismissing a
complaint, the matter in dispute is subject to judicial review.
As the FEC explained:

        Recognizing the permissibility of prosecutorial
    discretion does not invalidate any portion of [the
    FECA’s] statutory scheme. That is because
    Commission decisions not to prosecute, unlike those of
    most agencies, remain subject to judicial review. Akins,
    524 U.S. at 26; see Heckler, 470 U.S. at 832. When the
    Commission dismisses an administrative complaint,
                                7
    even as an exercise of prosecutorial discretion, it must
    explain its rationale for doing so. See Democratic Cong.
    Campaign Comm. v. FEC, 831 F.2d 1131, 1135 (D.C.
    Cir. 1987). On judicial review of that decision, courts
    evaluate the Commission’s exercise of discretion to
    determine whether it depends on any errors of law or is
    otherwise unreasonable. Orloski, 795 F.2d at 161; see
    also [Citizens for Responsibility & Ethics in
    Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir.
    2007)] (“At this stage, judicial review of the
    Commission’s refusal to act on complaints is limited to
    correcting errors of law.”).

        If the Commission supplies reasonable grounds for
    invoking its discretion not to pursue a matter, its
    decision is not contrary to law and the condition
    precedent for a private right of action is never triggered.
    See 52 U.S.C. § 30109(a)(8)(C). In the event the
    Commission’s rationale for not pursuing a case is
    unreasonable — or if the Commission makes errors of
    law in its analysis — that exercise of discretion would
    be rejected on judicial review and the matter would be
    remanded to the agency. Id. If the Commission failed
    to conform to such a court declaration, a complainant
    could bring a civil action in its own name. Id.

Br. for FEC at 27-28, CREW, 892 F.3d 434 (D.C. Cir. 2018)
(No. 17-5049) (emphasis added).

     In its brief to the court in this case, the Commission’s
argument reflects a complete change of position. Contrary to
its position in CREW, the Commission now argues that because
the decision issued by three Commissioners was based on
prosecutorial discretion, it is not subject to judicial review. Br.
for FEC at 17. The Commission also argues here that Heckler
                                8
v. Chaney applies, id. at 24, 26-28, even though the FEC
conceded in CREW that a Commission decision not to
prosecute is reviewable pursuant to the Supreme Court’s
decision in Akins and that Heckler does not bar review.

    The Commission now ignores Akins and abandons (without
explanation) the position that it presented to the court in
CREW. In other words, the Commission seeks to parlay the
judgment rendered in CREW to achieve a result that it
eschewed in CREW. This may be nothing more than an
example of a party acting in its own self-interest. I would have
thought, however, that a government agency such as the FEC,
with important responsibilities in enforcing the FECA, would
at least explain to the court how its position on reviewability
can change so dramatically.

    What is particularly troubling in this case is that the
Commission’s position in CREW was perfectly consistent with
the well-established law of the circuit. The Commission was
correct in arguing to the court in CREW that “the permissibility
of prosecutorial discretion does not invalidate [the
requirements of the FECA]. That is because Commission
decisions not to prosecute, unlike those of most agencies,
remain subject to judicial review.” Br. for FEC at 27, CREW,
892 F.3d 434 (D.C. Cir. 2018) (No. 17-5049). If CREW can be
read to suggest that “when three Commissioners invoke
‘prosecutorial discretion’ they foreclose both the FEC
enforcement action and our review of the decision not to
proceed, [this] certainly seems contrary to Congress’s intent.”
Citizens for Responsibility & Ethics in Washington v. FEC, 923
F.3d 1141, 1142-43 (D.C. Cir. 2019) (Griffith, J., concurring in
the denial of rehearing en banc). It is also contrary to the law of
the circuit.
                                9
    As the Commission explained in its brief to the court in
CREW, when the Commission dismisses an administrative
complaint, even as an exercise of prosecutorial discretion, it
must explain its rationale for doing so and the matter is subject
to judicial review. Heckler v. Chaney does not bar judicial
review. The law of the circuit is clear on these points, and the
law was well-established long before the decision in CREW.
See Chamber of Commerce, 69 F.3d 600; DCCC, 831 F.2d
1131; and Orloski, 795 F.2d 156. And, under the law of the
circuit, it is well-understood that:

       The standard to be applied by this court in
   reviewing the FEC’s decision not to investigate [a]
   complaint is whether the FEC has acted “contrary to
   law.” See 2 U.S.C. § 437g(a)(8)(C). The FEC’s
   decision is “contrary to law” if (1) the FEC dismissed
   the complaint as a result of an impermissible
   interpretation of the Act . . . or (2) if the FEC’s dismissal
   of the complaint, under a permissible interpretation of
   the statute, was arbitrary or capricious, or an abuse of
   discretion.

Orloski, 795 F.2d at 161.

    In sum, there is no basis to credit CREW’s statement
regarding the applicability of Heckler v. Chaney over the law
of the circuit to the contrary. As we explained in Sierra Club v.
Jackson, 648 F.3d 848 (D.C. Cir. 2011), “when a decision of
one panel is inconsistent with the decision of a prior panel, the
norm is that the later decision, being a violation of that fixed
law, cannot prevail.” Id. at 854. We are bound to follow the law
of the circuit, which is plainly reflected in Chamber of
Commerce, DCCC, and Orloski. It is also accurately explained
by the Commission in its brief to the court in CREW. The
Commission’s position on the reviewability of Appellants’
                            10
claim in this case is misguided because it cannot be squared
with the law of the circuit. This court is not barred from
reviewing Appellants’ claim under Heckler v. Chaney. On the
merits, however, I concur in the judgment of the court.
