194 F.3d 72 (D.C. Cir. 1999)
Envirocare of Utah, Inc.,Petitionerv.Nuclear Regulatory Commission and United States of America, RespondentsQuivira Mining Company and International Uranium (USA) Corporation, Intervenors
No. 98-1426 Consolidated with No. 98-1592
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1999Decided October 22, 1999

On Petitions for Review of an Order of the Nuclear Regulatory Commission
Richard L. Cys argued the cause for petitioner.  With him  on the briefs was Lynda L. Brothers.
E. Leo Slaggie, Deputy Solicitor, U.S. Nuclear Regulatory  Commission, argued the cause for respondents.  With him on  the brief were Lois J. Schiffer, Assistant Attorney General,  U.S. Department of Justice, Robert H. Oakley, Attorney,  Karen D. Cyr, General Counsel, U.S. Nuclear Regulatory  Commission, and John F. Cordes, Jr., Solicitor. Grace H.  Kim, Attorney, entered an appearance.
Anthony J. Thompson, Frederick S. Phillips, David C.  Lashway, Mark J. Wetterhahn, and Robert M. Rader were on  the brief for intervenors.
Before:  Edwards, Chief Judge, Sentelle and Randolph,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
Federal agencies may, and  sometimes do, permit persons to intervene in administrative  proceedings even though these persons would not have standing to challenge the agency's final action in federal court. Agencies, of course, are not constrained by Article III of the  Constitution;  nor are they governed by judicially-created  standing doctrines restricting access to the federal courts. The criteria for establishing "administrative standing" therefore may permissibly be less demanding than the criteria for  "judicial standing."  See, e.g., Pittsburgh & W.Va. Ry. v.  United States, 281 U.S. 479, 486 (1930);  Alexander Sprunt &  Son, Inc. v. United States, 281 U.S. 249, 255 (1930);  Henry J.  Friendly, Federal Jurisdiction:  A General View 118 (1973).1


2
Is the converse true?  May an agency refuse to grant a  hearing to persons who would satisfy the criteria for judicial  standing and refuse to allow them to intervene in administrative proceedings?  This is the ultimate question posed in  these consolidated petitions for judicial review of two orders  of the Nuclear Regulatory Commission refusing to grant  Envirocare of Utah, Inc.'s requests for a hearing and for  intervention in licensing proceedings.


3
* Envirocare was the first commercial facility in the nation  the Commission licensed to dispose of certain radioactive  byproduct material from offsite sources.2  The Commission  had licensed other companies to dispose of such radioactive  waste, but only if the waste was produced onsite.  In the late  1990s, the Commission granted the applications of two such  companies for amended licenses to allow them to dispose of  radioactive waste received from other sites.  International  Uranium (USA) Corporation's facility in Utah became licensed to receive and dispose of approximately 25,000 dry  tons of waste still remaining from the Manhattan Project and  currently stored in New York State.  Quivira Mining Company's facility in New Mexico, some 500 miles from Envirocare's  operation, also became licensed to dispose of specified  amounts of such material from offsite sources.


4
In both licensing proceedings before the Atomic Safety and  Licensing Board, Envirocare requested a hearing and sought  leave to intervene to oppose the amendment.  Envirocare's  basic complaint was "that the license amendment permits [the  company] to become a general commercial facility like Envirocare, but that the NRC did not require [the company] to  meet the same regulatory standards the agency imposed upon  Envirocare when Envirocare sought its license to become a commercial disposal facility for" radioactive waste.  Quivira  Mining Co., 48 N.R.C. 1, 4 (1998).  The Licensing Board  rejected Envirocare's requests for a hearing and for leave to  intervene in both cases, and in separate opinions several  months apart, the Commission affirmed.


5
With respect to the proceedings to amend Quivira's license,  the Commission ruled that Envirocare did not come within  the following "standing" provision in the Atomic Energy Act: when the Commission institutes a proceeding for the granting  or amending of a license, "the Commission shall grant a  hearing upon the request of any person whose interest may  be affected by the proceeding, and shall admit any such  person as a party to such proceeding."  42 U.S.C.  § 2239(a)(1)(A).  In determining whether Envirocare possessed the requisite "interest" under this provision, the Commission looked to "current judicial concepts of standing."Quivira Mining Co., 48 N.R.C. at 6.  Envirocare alleged  economic injury, claiming that the less stringent application of  regulations to Quivira placed Envirocare at a competitive  disadvantage.  This allegation was sufficient, the Commission  held, to meet the injury-in-fact requirements of constitutional  standing.  On the question of prudential standing, however,  the Commission determined that "Envirocare's purely competitive interests, unrelated to any radiological harm to itself,  do not bring it within the zone of interests of the AEA for the  purpose of policing the license requirements of a competitor."Id. at 16.


6
With respect to International Uranium's license, the Commission agreed with the Licensing Board that the case was  "on all fours" with Quivira.  International Uranium Corp.,  48 N.R.C. 259, 261 (1998).  As in that case, Envirocare's  injury from International Uranium's competition was not  within the Atomic Energy Act's zone of interests.  In addition, the Commission made explicit its view that judicial  standing doctrines were not controlling in the administrative  context and that its duty was to interpret the "interest[s]"  Congress intended to recognize in § 2239(a)(1)(A):  "Our understanding of the AEA requires us to insist that a competitor's pecuniary aim of imposing additional regulatory restrictions or burdens on fellow market participants does not fall  within those 'interests' that trigger a right to hearing and  intervention under [§ 2239(a)(1)(A)]."  International Uranium Corp., 48 N.R.C. at 264.

II

7
Envirocare spends all of its time arguing that in light of  decisions of the Supreme Court and of this court, its status as  a competitor satisfies the "zone of interests" test for standing,  as the test was formulated in Association of Data Processing  Service Organizations v. Camp, 397 U.S. 150 (1970), and as it  was refined in National Credit Union Administration v.  First National Bank & Trust Co., 522 U.S. 479 (1998).  We  shall assume that Envirocare is correct.  It does not follow  that the Commission erred in refusing the company's motions  for a hearing and for leave to intervene, at least in regard to  International Uranium's license amendment.  The Commission rightly pointed out, in International Uranium and in  Quivira, that it is not an Article III court and thus is not  bound to follow the law of standing derived from the "case or  controversy" requirement.  See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).  Judicially-devised prudential  standing requirements, of which the "zone of interests" test is  one, are also inapplicable to an administrative agency acting  within the jurisdiction Congress assigned to it.  The doctrine  of prudential standing, like that derived from the Constitution, rests on considerations "about the proper--and properly  limited--role of the courts in a democratic society."  Warth v.  Seldin, 422 U.S. 490, 498 (1975).


8
Whether the Commission erred in excluding Envirocare  from participating in International Uranium's licensing proceeding therefore turns not on judicial decisions dealing with  standing to sue, but on familiar principles of administrative  law regarding an agency's interpretation of the statutes it  alone administers.  See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).  The  governing provision--42 U.S.C. § 2239(a)(1)(A)--requires the  Commission to hold a hearing "on the request of any person whose interest may be affected by the proceeding" and to  allow such a person to intervene.3  The term "interest" is not  defined in the Act and it is scarcely self-defining.  It could  mean merely an academic or organizational interest in a  problem or subject, as in Sierra Club v. Morton, 405 U.S. 727,  738-40 (1972).  Or an interest in avoiding economic harm or  in gaining an economic benefit from agency action directed at  others.  See Association of Data Processing Serv. Orgs., 397  U.S. at 154.  Or an "interest" in "aesthetic, conservational  and recreational values."  Id.  Or all of these.  But whatever  the judicial mind thinks of today as an "interest" affected by a  proceeding is not necessarily what Congress meant when it  enacted this provision in 1954.  At the time, judicial notions of  standing were considerably more restrictive than they are  now.  The Supreme Court had put it this way:  a private  party could challenge federal government action in federal  court only if the party had a legally protected interest, that is,  "one of property, one arising out of contract, one protected  against tortious invasion or one founded on a statute which  confers a privilege."  Tennessee Elec. Power Co. v. TVA, 306  U.S. 118, 137-38 (1939);  see also Stephen G. Breyer &  Richard B. Stewart, Administrative Law and Regulatory  Policy:  Problems, Text, and Cases 1195-96 (2d ed. 1985).Thus, traders in one market were not "parties in interest"  entitled to sue for an injunction against a railroad's extending  its track to a competitive market.  L. Singer & Sons v. Union  Pac. R.R., 311 U.S. 295 (1940).  On the other hand, some  Supreme Court opinions pointed in the opposite direction,  recognizing judicial standing for competitors who would suffer economic injury from agency action.  An example is FCC  v. Sanders Brothers Radio Station, 309 U.S. 470 (1940).Another is The Chicago Junction Case, 264 U.S. 258 (1924).How agencies were then treating standing questions is unclear.  According to one report, they were limiting the right  to a hearing "to those directly subject to administrative  controls, exactions or sanctions," Breyer & Stewart, supra,  at 1186.  Even after Sanders Brothers, the FCC did not  recognize "economic injury" as "sufficient to secure a hearing  or to intervene in a hearing on a competitor's license application."  Ronald A. Cass & Colin S. Diver, Administrative Law: Cases and Materials 714 (1987) (citing Voice of Cullman, 14  F.C.C. 770 (1950)).  It was not until the late 1950s that some  decisions of this court began expanding the category of  persons entitled to participate in agency proceedings on the  theory that anyone who had standing to seek judicial review  should have administrative standing.  See, e.g., National Welfare Rights Org. v. Finch, 429 F.2d 725, 732-33 (D.C. Cir.  1970);  Office of Communication of United Church of Christ  v. FCC, 359 F.2d 994, 1000-06 (D.C. Cir. 1966);  Virginia  Petroleum Jobbers Ass'n v. FPC, 265 F.2d 364 (D.C. Cir.  1959).4  (We will have more to say about these cases in a  moment.)


9
Because we cannot be confident of what kinds of interests  the 1954 Congress meant to recognize in § 2239(a)(1)(A)-because, in other words, the statute is ambiguous--the Commission's interpretation of this provision must be sustained if  it is reasonable.  See Chevron, 467 U.S. at 843.  We think it  is.  For one thing, excluding competitors who allege only  economic injury from the class of persons entitled to intervene in licensing proceedings is consistent with the Atomic  Energy Act.  The Act meant to increase private competition  in the industry, not limit it.  Before its passage in 1954, the  federal government completely controlled nuclear energy.  Through the Act, Congress sought to foster a private nuclear  industry for peaceful purposes.  In order to ensure that  private industry would not undermine nuclear safety, the Act  created an agency--what is today the Nuclear Regulatory  Commission--to regulate the private sector.  See generally  Pacific Gas & Elec. v. Energy Resources Comm'n, 461 U.S.  190 (1983).  One of the Commission's statutory duties is  authorizing the transfer and receipt of radioactive byproduct  material.  See 42 U.S.C. § 2111.  The statute describes the  Commission's responsibility in this area as follows:  "The  Commission shall insure that the management of any byproduct material ... is carried out in such a manner as the  Commission deems appropriate to protect the public health  and safety and the environment from radiological and non radiological hazards associated with the processing and with  the possession and transfer of such material...."  42 U.S.C.  § 2114(a)(1).


10
Nothing in this provision, or in the rest of the Act, indicates  that the license requirement was intended to protect market  participants from new entrants.  Envirocare points to the  Act's policy statement which mentions "strengthen[ing] free  competition in private enterprise."  Petitioner's Initial Brief  at 25 (citing 42 U.S.C. § 2011).  This statement refers to the  Act's goal of creating a private nuclear energy industry.  Allowing new competitors to enter the market strengthens competition.  Permitting current license holders to initiate  hearings for the purpose of imposing burdens on potential  competitors does the opposite.  See Lars Noah, Sham Petitioning as a Threat to the Integrity of the Regulatory Process, 74 N.C. L. Rev. 1 (1995).


11
In rendering its interpretation of § 2239(a)(1)(A), the Commission also properly took account of regulatory burdens on  the agency.  It wrote:  "Competitors, though, whose only  'interest' is lost business opportunities, could readily burden  our adjudicatory process with open-ended allegations designed not to advance public health and safety but as a  dilatory tactic to interfere with and impose costs upon a  competitor.  Such an abuse of our hearing process would  significantly divert limited agency resources, which ought to  be squarely--genuinely--focused upon health and safety concerns."  International Uranium, 48 N.R.C. at 265.  The  Commission's concerns are not limited to byproduct disposal  licenses.  Those are only one of the many types of licenses  the Commission grants.  Within the Commission's authority are licenses for the distribution of special nuclear material,  see 42 U.S.C. § 2073, for the transfer and distribution of  nuclear source material, see id. §§ 2092, 2093, for commercial  uses of nuclear material, see id. § 2133, and for medical  therapy that uses nuclear material, see id. § 2134(a).


12
For these reasons, the view the Commission expressed in  its International Uranium opinion--that competitors asserting economic injury do not demonstrate the type of interest  necessary under § 2239(a)(1)(A)--is a permissible construction of the statute.5  And it appears to be a construction the  Commission has adhered to for some time.  See Virginia  Elec. & Power Co., 4 N.R.C. 98, 105-06 (1976).  The Commission stated that it has long been its practice to deny requests for a hearing under § 2239(a)(1)(A) when the petitioner alleged only economic injury.  See International Uranium, 48  N.R.C. at 265.  Envirocare has cited nothing to the contrary. In any event, even if the Commission's refusal to follow the  developing law of judicial standing had been a departure from  its usual practice, it gave adequate reasons for changing  course.


13
We mentioned earlier several decisions of this court indicating that agencies should allow administrative standing to  those who can meet judicial standing requirements:  National  Welfare Rights Organization v. Finch, 429 F.2d 725, 732  (D.C. Cir. 1970);  Office of Communication of United Church  of Christ v. FCC, 359 F.2d 994, 1000-06 (D.C. Cir. 1966);Virginia Petroleum Jobbers Association v. FPC, 265 F.2d 364  (D.C. Cir. 1959).6  None of these cases interpreted the administrative standing provision of the Atomic Energy Act.  All  were decided before Chevron and for that reason alone cannot  control our decision today.  Furthermore, despite some broad  language in Office of Communication about administrative  standing, the agency there equated standing to appear before  it with standing to obtain judicial review and so the court had  no occasion to examine whether the two concepts might be  distinct.  See 359 F.2d at 1000 n.8.  In National Welfare  Rights no statute gave individuals standing to intervene in  agency proceedings to cut off federal grants-in-aid to states  under the Social Security Act.  Regardless of the agency's  view that only states could participate in the administrative  proceedings, which is what the statute said, the court ordered  the agency to follow principles of judicial standing in order to  "perfect[ ] the right to review."  429 F.2d at 737.  This mode  of decision making is contrary to the Supreme Court's later  decision in Vermont Yankee prohibiting the judiciary from  imposing procedures on an agency when a statute does not  require them.  See Vermont Yankee Nuclear Power Corp. v.  Natural Resources Defense Council, Inc., 435 U.S. 519, 543-49 (1978).  As to Virginia Petroleum Jobbers, the court there  equated standing to intervene in agency proceedings with  standing to seek judicial review on the basis that "the right to  appeal from an order presupposes participation in the proceedings which led to it," 265 F.2d at 368, a proposition that  has since been vigorously disputed.  See Louis L. Jaffe,  Judicial Control of Administrative Action 524-25 (1965);Louis L. Jaffe, Judicial Review of Procedural Decisions and  the Philco Cases:  Plus Ca Change?, 50 Geo. L.J. 661, 669  (1960). In any event, as we have said, all of these cases were  pre-Chevron.  Judged by current law, none gave sufficient  weight to the agency's interpretation of the statute governing  intervention in its administrative proceedings.7


14
This brings us to the Commission's order in Quivira.  The  Commission in that case appeared to reject Envirocare's  petition entirely on the basis of its reading of judicial standing  doctrine.  The opinion did not purport to rest on the interpretation of § 2239(a)(1)(A) it expressed a few months later in  the International Uranium case.  The Commission did, however, give notice that although it "customarily follows judicial  concepts of standing, we are not bound to do so given that we  are not an Article III court."  Quivira, 48 N.R.C. at 6 n.2.Whether in Quivira the Commission correctly analyzed the  Supreme Court's National Credit Union decision regarding the "zone-of-interest" test or our opinion in Hazardous Waste  Treatment Council v. EPA, 861 F.2d 277 (D.C. Cir. 1988), or  any of the other judicial opinions it discussed, is an issue we  do not decide.  If we did decide the question and if we  concluded that the Commission's analysis was incorrect, we  would set aside its order and remand the case.  On remand,  the Commission could--and undoubtedly would--simply cite  our holding in the International Uranium case and again  deny Envirocare's request for a hearing and for leave to  intervene.  When "there is not the slightest uncertainty as to  the outcome of a proceeding" on remand, courts can affirm an  agency decision on grounds other than those provided in the  agency decision.  NLRB v. Wyman-Gordon, 394 U.S. 759,  766 n.6 (1969);  see also Pharma, Inc. v. Shalala, 62 F.3d  1484, 1489 (D.C. Cir. 1995).  As Judge Friendly explained,  reversal and remand is "necessary only when the reviewing  court concludes that there is a significant chance that but for  the error the agency might have reached a different result. In the absence of such a possibility, affirmance entails neither  an improper judicial invasion of the administrative province  nor a dispensation of the agency from its normal responsibility."  Henry J. Friendly, Chenery Revisited:  Reflections on  Reversal and Remand of Administrative Orders, 1969 Duke  L.J. 199, 211.  With respect to the Quivira case, concerns  about judicial intrusion and agency abdication are especially  unwarranted. It is the Commission's reasoning, in International Uranium, that we accept as the ground upon which to  dispose of the petition for review in Quivira.


15
The petitions for judicial review are denied.



Notes:


1
 As Judge Friendly observed:
The need for a "case or controversy" to seek judicial review but not to intervene in an administrative hearing;  the differences between statutes and agency rules controlling intervention and statutes controlling judicial review;  and the differing characters of administrative and judicial proceedings--all of these negate any general rule linking a person's standing to seek judicial review to the fact that he has been allowed to intervene before the agency.
Id. (citing 3 Kenneth Culp Davis, Administrative Law Treatise  § 22.08, at 241 (1958)).


2
 The material consists of waste resulting from "the extraction or  concentration of uranium or thorium from any ore processed primarily for its source material content."  42 U.S.C. § 2014(e)(2).


3
 Although it appears that the Administrative Procedure Act  applies to the Nuclear Regulatory Commission, see 42 U.S.C.  § 2231, Envirocare has not invoked the APA's administrative standing provision, which reads:  "So far as the orderly conduct of public  business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or  determination of an issue, request or controversy in a proceeding."  5 U.S.C. § 555(b).
Commentators have noted that the role of § 555(b) is unclear and  very few courts have attempted to delineate its scope.  See 3  Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law  Treatise § 16.10, at 63-65 (3d ed. 1994).  One scholar, relying on  the prefatory language of the provision, argues that § 555(b) does  not create "an absolute, or even a conditional, right to be a party."David L. Shapiro, Some Thoughts on Intervention Before Courts,  Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 766 (1968).  We  express no view on whether § 555(b) would bring about a result  different than the one reached by the Commission in its International Uranium opinion interpreting § 2239(a)(1)(A).  See infra  note 7.


4
 We are not sure that Martin-Trigona v. Federal Reserve Bd.,  509 F.2d 363 (D.C. Cir. 1975), is such a case.  While the court  stated that the tests for judicial standing and administrative standing would be treated as identical "[f]or purposes of this case," id. at  366, this appears to have been a decisional device.  The court's  holding was that petitioner had alleged no injury in fact and therefore did not have standing of any sort.  Id. at 367;  see also id.  at 366 n.10.


5
 The Commission's interpretation does not leave competitors  without any opportunity to make their views known in another's  licensing proceeding.  As the Commission pointed out, any person  is allowed to participate in the written petition process, see 10  C.F.R.  2.206, and competitors can participate in ongoing adjudications as amici.  See International Uranium, 48 N.R.C. at 265-66.


6
 At least one member of this court questioned these decisions  even before Chevron.  See Koniag, Inc., Village of Uyak v. Andrus,  580 F.2d 601, 613 & n.5 (D.C. Cir. 1978) (Bazelon, J., concurring).


7
 Our post-Chevron opinion in Nichols v. Board of Trustees of the  Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 896 (D.C.  Cir. 1987), did state:  "Because a party entitled to judicial review of  agency action clearly qualifies as an 'interested person' who normally may intervene in administrative proceedings, we hold that [petitioner] possessed such status under [§ 555(b) of the APA] when he  requested permission to participate in the proceedings under review."  Whether the meaning of "interested person" in § 555(b)  was contested is unclear (see id. at 897-98), nor are we certain what  the court meant by the qualifier "normally" in the quoted sentence. At any rate, when it comes to statutes administered by several  different agencies--statutes, that is, like the APA and unlike the  standing provision of the Atomic Energy Act--courts do not defer  to any one agency's particular interpretation.  See Tax Analysts v.  IRS, 117 F.3d 607, 613 (D.C. Cir. 1997).


