 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 18, 2015          Decided October 30, 2015

                        No. 14-5309

 AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS,
                     APPELLANT

                              v.

 INTERNAL REVENUE SERVICE AND JOHN A. KOSKINEN, IN HIS
OFFICIAL CAPACITY AS COMMISSIONER OF INTERNAL REVENUE
                        SERVICE,
                       APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-01190)


     Douglas R. Cox argued the cause for appellant. With him
on the briefs were Russell B. Balikian and Jacob T. Spencer.

    Bethany B. Hauser, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Gilbert S. Rothenberg and Jonathan S. Cohen, Attorneys.
Ellen P. DelSole, Attorney, entered an appearance.

     Noel L. Allen was on the brief for amicus curiae National
Association of State Boards of Accountancy in support of
neither party.
                              2
    Before: TATEL, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.

    Opinion for the Court filed by Circuit Judge TATEL.

     TATEL, Circuit Judge: Appellant, a professional
association of certified public accountants and their firms,
challenges an Internal Revenue Service program that allows
previously uncredentialed tax return preparers who take
required courses and fulfill other prerequisites to obtain a
“Record of Completion” and to have their names listed in the
IRS’s online “Directory of Federal Tax Return Preparers.”
Appellant argues that the IRS lacks statutory authority to
implement the program, acted arbitrarily and capriciously in
adopting it, and failed to engage in required notice and
comment rulemaking. The district court found that appellant’s
members will suffer no actual or imminent harm and
dismissed the complaint for lack of Article III standing. For
the reasons set forth in this opinion, we conclude that
Appellant has adequately alleged the program will subject its
members to an actual or imminent increase in competition and
that it therefore has standing to pursue its challenge.

                              I.
     Because “[t]he federal income tax code is massive and
complicated . . . it is not surprising that many taxpayers hire
someone else to help prepare their tax returns.” Loving v. IRS
(Loving III), 742 F.3d 1013, 1014 (D.C. Cir. 2014). The tax
return preparer market consists of four groups: (1) certified
public accountants (CPAs); (2) lawyers; (3) “enrolled agents”;
and (4) unenrolled preparers. CPAs and attorneys are subject
to state professional licensing regimes, and enrolled agents
are licensed by the IRS and subject to various IRS
requirements including taking continuing education courses
and passing an exam. These three groups are also subject to
                                3
IRS Circular 230, which includes rules and disciplinary
procedures for practice before the IRS.

     By contrast, unenrolled preparers are subject to less
stringent regulation. Although they, like all tax return
preparers, must obtain a “Preparer Tax Identification
Number” and list that number on every return they sign, see
Treas. Reg. § 1.6109-2, they have no obligation to take
courses or pass an exam. The “hundreds of thousands” of
unenrolled preparers, Loving III, 742 F.3d at 1021, account
for about sixty percent of all tax return preparers. Appellees’
Br. 4.

     In 2011, the IRS issued the Registered Tax Return
Preparer Rule (“the Rule”). 76 Fed. Reg. 32,286. The Rule
would have required unenrolled preparers to become
“registered tax return preparer[s]” in order to continue
assisting clients with their tax returns. Id. at 32,301. Under the
Rule, preparers would have had to complete fifteen hours of
continuing education training annually, pass a written
examination, and subject themselves to portions of Circular
230. Id. at 32,301, 32,303, 32,306.

     Three unenrolled preparers challenged the Rule, arguing
that it exceeded the IRS’s authority to “regulate the practice
of representatives of persons before the Department of the
Treasury.” 31 U.S.C. § 330(a). In Loving v. IRS, the district
court agreed and permanently enjoined the IRS from
enforcing the Rule against unenrolled preparers. 917 F. Supp.
2d 67 (D.D.C. 2013). Although the district court later denied a
stay pending appeal, it modified its order to make clear that
nothing in the injunction “requir[ed] the IRS to dismantle its
entire scheme” because the IRS could “choose to retain the
testing centers and some staff, as it is possible that some
preparers may wish to take the exam or continuing education
                                4
even if not required to.” Loving v. IRS, 920 F. Supp. 2d 108,
111 (D.D.C. 2013). “Such voluntarily obtained credentials,”
the district court explained, “might distinguish [participating
preparers] from other preparers.” Id. Although we affirmed,
we said nothing about either the district court’s clarification
of its injunction or the permissibility of the Rule remaining in
place on a voluntary basis. Loving III, 742 F.3d 1013.

      After our decision in Loving—and perhaps inspired by
the district court’s suggestion—the IRS adopted the program
at issue in this case, the “Annual Filing Season Program”
(“the Program”). The Program offers preparers who, among
other things, complete required continuing education, pass an
exam, and subject themselves to portions of Circular 230, a
“Record of Completion”—an official notice that they have
complied with the Program. See Annual Filing Season
Program, Rev. Proc. 2014-42, 2014-29 I.R.B. 192. In
addition, the IRS lists participating preparers in its online
“Directory of Federal Tax Return Preparers,” which also
includes CPAs, lawyers, and enrolled agents. Internal
Revenue Service, Directory of Federal Tax Return Preparers
with Credentials and Select Qualifications, http://irs.treasury
.gov/rpo/rpo.jsf (last visited Oct. 20, 2015). The IRS designed
the Program to “encourage tax return preparers who are not
attorneys, certified public accountants . . . , or enrolled agents
. . . to complete continuing education courses for the purpose
of increasing their knowledge of the law relevant to federal
tax returns.” Annual Filing Season Program § 1. The Program
is “voluntary and no tax return preparer is required to
participate.” Id. § 3.

    According to IRS Commissioner John Koskinen,              the
Program allows participants “to stand out from                the
competition by giving them a recognizable record               of
completion that they can show to their clients.” Compl.       ¶7
                                5
(internal quotation marks omitted). The Program, however,
prohibits preparers from using “the term[s] ‘certified,’
‘enrolled,’ or ‘licensed’ to describe [a Record of Completion]
or in any way imply[ing] an employer/employee relationship
with the IRS or mak[ing] representations that the IRS has
endorsed the tax return preparer.” Annual Filing Season
Program § 4.07.

     The American Institute of Certified Public Accountants
(“the Institute”), a professional organization with about
400,000 accountants and accounting firms as members—
some of whom employ unenrolled preparers—challenged the
Program, arguing that even the voluntary program exceeds the
IRS’s statutory authority and that, in adopting it, the agency
acted arbitrarily and capriciously and failed to comply with
required notice and comment procedures. Anticipating a
standing challenge, the Institute alleged in its complaint that
the Program harms its members in three ways: (1) by
confusing consumers and causing competitive harm; (2) by
imposing regulatory burdens on unenrolled preparers that
some of the Institute’s members employ; and (3) by
increasing the regulatory burden on Institute members.
Compl. ¶ 12.

      The IRS did in fact seek dismissal on standing grounds,
arguing that the Program caused no harm because it was
entirely voluntary, and that, regardless, each of the Institute’s
three standing theories was fatally flawed. In opposing the
IRS’s motion to dismiss, the Institute submitted seven
declarations to substantiate its allegations regarding its Article
III standing.

    The district court granted the IRS’s motion to dismiss.
American Institute of Certified Public Accountants v. IRS, No.
1:14-cv-01190, 2014 WL 5585334 (D.D.C. Oct. 27, 2014).
                               6
Passing over the IRS’s argument that the Program causes the
Institute’s members no harm because it is voluntary, the
district court agreed with the IRS that “each of [the
Institute’s] assertions of standing is fatally flawed in its own
right.” Id. at *4. The Institute appeals. Our review is de novo.
Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014)
(reviewing a dismissal for lack of standing de novo).

                               II.
     The “irreducible constitutional minimum of standing
contains three elements”: (1) plaintiffs must have suffered an
injury in fact that is “concrete and particularized” and “actual
or imminent, not conjectural or hypothetical”; (2) the injury
must be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of
some third party not before the court”; and (3) “it must be
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation
marks and alterations omitted). In order to demonstrate
Article III standing to maintain its procedural challenge—i.e.,
that the IRS failed to engage in notice and comment
rulemaking—the Institute need show only that the Program
itself, rather than the procedures used to adopt it, causes a
redressable harm. See Mendoza, 754 F.3d at 1010. “In
evaluating plaintiffs’ standing at the motion to dismiss stage
we must assume that the plaintiffs state a valid legal claim
and must accept the factual allegations in the complaint as
true.” Id. (internal quotation marks and alterations omitted).

     Associations have representational standing if: “(1) at
least one of their members has standing to sue in her or his
own right, (2) the interests the association seeks to protect are
germane to its purpose, and (3) neither the claim asserted nor
the relief requested requires the participation of an individual
                              7
member in the lawsuit.” American Library Ass’n v. FCC, 401
F.3d 489, 492 (D.C. Cir. 2005). The IRS challenges only the
first of these three requirements.

     We begin and end with the Institute’s claim of competitor
standing. As explained in Sherley v. Sebelius, although we
have employed “various formulations” for determining
competitor standing, “the basic requirement common to all
our cases is that the complainant show an actual or imminent
increase in competition, which increase we recognize will
almost certainly cause an injury in fact.” 610 F.3d 69, 73
(D.C. Cir. 2010). In Sherley, we held that adult stem cell
researchers had competitor standing to challenge Department
of Health and Human Services guidelines that increased the
range of embryonic stem cell research eligible to compete
with their research for government grants. Id. at 72–74. In
Shays v. Federal Election Commission, we held that two
congressmen seeking reelection had competitor standing to
challenge Commission regulations that they alleged allowed
statutorily forbidden campaign practices. 414 F.3d 76 (D.C.
Cir. 2005). Although the challenged regulations applied to the
plaintiff congressmen as well as to their competitors, we held
that “when regulations illegally structure a competitive
environment—whether an agency proceeding, a market, or a
reelection race—parties defending concrete interests . . . in
that environment suffer legal harm under Article III.” Id. at
87.

     Here, the Institute’s members, like the researchers in
Sherley and the congressmen in Shays, will face intensified
competition as a result of the challenged government action.
Specifically, participating unenrolled preparers will gain a
credential and a listing in the government directory. The
Institute alleges—and we must accept as true for purposes of
assessing its standing—that this will “dilute[] the value of a
                                8
CPA’s credential in the market for tax-return-preparer
services” and permit unenrolled preparers to more effectively
compete with and take business away from presumably
higher-priced CPAs. Appellant’s Reply Br. 12.

     After the completion of briefing in this case, this Court
issued its opinion in State National Bank of Big Spring v.
Lew, in which we denied a bank’s claim that it had competitor
standing to challenge the government’s designation of a
competitor as “too big to fail.” 795 F.3d 48 (D.C. Cir. 2015).
Although this designation subjected the competitor to
additional regulation, the plaintiff alleged it would also result
in a reputational benefit that would allow its competitor to
borrow money more cheaply. Id. at 55. Rejecting this
argument, we held that “the link between (i) the enhanced
regulation of [the competitor], (ii) any alleged reputational
benefit to [the competitor], and (iii) any harm to [the plaintiff]
is simply too attenuated and speculative to show the causation
necessary to support standing.” Id.

     In our view, the links we found unduly speculative in
State National Bank are far tighter here. To begin with, the
link between the government-backed credentials offered to
unenrolled preparers and the reputational benefit they will
enjoy is hardly speculative. Indeed, the reputational benefit is
the very point of the IRS Program. As Commissioner
Koskinen explained, the Program allows participants “to stand
out from the competition by giving them a recognizable
record of completion that they can show to their clients.”
Compl. ¶ 7 (internal quotation marks omitted). Moreover,
unlike State National Bank’s mandatory “too big to fail”
designation, which was not intended to be laudatory, the IRS
Program at issue here is both voluntary and clearly intended
to offer competitive benefits to those unenrolled preparers
who participate in the Program. “Basic economic logic”
                               9
suggests that unenrolled preparers will choose to participate
only if they believe the resulting reputational benefit will
produce a substantial enough competitive advantage to
outweigh their compliance costs. Cf. United Transportation
Union v. ICC, 891 F.2d 908, 912 n.7 (D.C. Cir. 1989) (noting
that allegations of competitive harm founded on “basic
economic logic” can establish standing). And although the
Institute has offered no evidence that the competitive harm
has yet occurred, our precedent imposes no such requirement.
“Because increased competition almost surely injures a seller
in one form or another, he need not wait until allegedly illegal
transactions hurt him competitively before challenging
the . . . governmental decision that increases competition.”
Sherley, 610 F.3d at 72 (internal quotation marks and
alterations omitted).

     Seeking to escape this logic, the IRS argues that the
Program will help unenrolled preparers compete only with
other unaffiliated unenrolled preparers who decline to
participate, rather than with the CPAs and CPA firms that
comprise the Institute’s membership. The Institute responds
with two arguments: (1) that consumers will be confused
about the meaning of the Record of Completion, believing
either that it conveys IRS endorsement of the preparer or that
it represents a superior credential to a CPA license; and (2)
that even if the Program causes no confusion, it still causes
competitive harm by “dilut[ing] the value of a CPA’s
credential in the market for tax-return-preparer services” and
by making it more difficult for unenrolled preparers employed
by the Institute’s members to secure business. Appellant’s
Reply Br. 12.

    Despite the fervor with which the parties dispute the
confusion issue, we have no need to reach it because we agree
with the Institute’s second argument—that the Program harms
                               10
its members competitively even if it causes no confusion. The
Institute alleges that unenrolled preparers are part of the same
tax return preparation market as its members. Compl. ¶¶ 18–
21. Indeed, the IRS itself reports that sixty percent of tax
return preparers are unenrolled preparers. Appellees’ Br. 4.
We see nothing at all speculative or attenuated about the
Institute’s contention that “[u]nenrolled preparers with
government-backed credentials will be better able to compete
against other credentialed preparers, and especially against
uncredentialed employees of [Institute] members.”
Appellant’s Reply Br. 12. Nor do we see anything speculative
or attenuated about the allegation that CPAs and their firms
are more likely to lose business to an unenrolled preparer with
a Record of Completion and a listing in the government
directory than to an unenrolled preparer with no credentials at
all.

     The IRS argues that Institute members will face no
increased competition from unenrolled preparers because both
the Program itself and Circular 230 restrict how preparers can
use their Records of Completion to advertise or solicit
business. Appellees’ Br. 32–34 & n.4. In support, the agency
emphasizes that the Program makes clear that preparers “may
not use the term ‘certified,’ ‘enrolled,’ or ‘licensed’ to
describe [a Record of Completion] or in any way imply an
employer/employee relationship with the IRS or make
representations that the IRS has endorsed the tax return
preparer.” Annual Filing Season Program § 4.07. And
Circular 230, the IRS points out, prohibits statements that are
“false, fraudulent, or coercive” or “misleading or deceptive.”
31 C.F.R. § 10.30(a)(1).

     Without violating any of these restrictions, however,
participating preparers remain free to tell potential clients that
they have a Record of Completion demonstrating that they
                              11
satisfied the Program’s educational requirements and passed
the test. Indeed, that is the very purpose of the Program.
Moreover, participating preparers’ names will appear in the
Directory of Federal Tax Return Preparers alongside the
names of CPAs and other credentialed preparers. As the
Institute helpfully sums up, “because the Rule distorts the
competitive marketplace and dilutes [Institute] members’
credentials by introducing a government-backed credential
and government-sponsored public listing, it harms those
members regardless of whether it also confuses consumers.”
Appellant’s Reply Br. 13. Given that the Institute has
adequately alleged that the Program “illegally structure[s] a
competitive environment” in which its members “defend[]
concrete interests,” Shays, 414 F.3d at 87, the Institute has
competitor standing.

     This, however, does not end our task because the IRS
also claims that the Institute’s “‘grievance’” does not
“‘arguably fall within the zone of interests protected or
regulated by the statutory provision’” it invokes. Appellees’
Br. 36 (quoting Mendoza, 754 F.3d at 1016); see also id. at
35–40. But the IRS never presented this argument to the
district court, a prerequisite to our consideration of a non-
jurisdictional issue absent “exceptional circumstances”—and
there are certainly no such circumstances here. Earle v.
District of Columbia, 707 F.3d 299, 308 (D.C. Cir. 2012). The
IRS insists its zone of interests argument is jurisdictional, a
surprising argument given that in a case the IRS itself cites,
the Supreme Court squarely ruled to the contrary. Lexmark
International, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1387 n.4 (2014); see Crossroads Grassroots Policy
Strategies v. FEC, 788 F.3d 312, 319 (D.C. Cir. 2015)
(recognizing that Lexmark made clear that the zone of
interests test is not jurisdictional). And although the IRS is
correct that in Mendoza v. Perez, we addressed a zone of
                              12
interests argument after finding Article III standing, 754 F.3d
at 1016, in that case the argument had been presented to the
district court, see Mendoza v. Solis, 924 F. Supp. 2d 307, 321
(D.D.C. 2013).

                             III.
    For the foregoing reasons, we reverse.

                                                   So ordered.
