 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 20, 2015                        June 5, 2015

                       No. 14-5199

                  PUBLIC CITIZEN, ET AL.,
                       APPELLEES

      CROSSROADS GRASSROOTS POLICY STRATEGIES,
                    APPELLANT

                             v.

             FEDERAL ELECTION COMMISSION,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-00148)


    Thomas W. Kirby argued the cause for appellant. With
him on the briefs were Michael E. Toner, Brandis L. Zehr,
and Samuel B. Gedge.

    Erin R. Chlopak, Attorney, Federal Election
Commission, argued the cause for appellee Federal Election
Commission. With her on the briefs were Kevin A. Deeley,
Acting Associate General Counsel, and Greg J. Mueller and
Charles Kitcher, Attorneys.
                               2
    Before: ROGERS and BROWN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge BROWN.

     BROWN, Circuit Judge: Crossroads GPS, the beneficiary
of a favorable decision by the Federal Election Commission,
moved to intervene as a defendant in a suit challenging the
Commission’s ruling. The district court denied intervention,
finding Crossroads’ interests were aligned with the FEC’s
Office of General Counsel’s, which was defending the ruling.
The court concluded the Office of General Counsel could
adequately represent Crossroads’ interests—even though the
Office opposed Crossroads in the prior proceedings before the
FEC, and even though the two parties disagree as to the
administrative record and litigation strategy.

     Aesop, an Ancient Greek famous for his fables, once
wrote, “a doubtful friend is worse than a certain enemy.”
Recognizing that doubtful friends may provide dubious
representation, “we have often concluded that governmental
entities do not adequately represent the interests of aspiring
intervenors.” Fund for Animals, Inc. v. Norton, 322 F.3d 728,
736 (D.C. Cir. 2003). The same holds true in this case. The
district court erred in denying Crossroads’ motion for
intervention as of right.

                               I.

     The Federal Election Campaign Act of 1971 (“FECA” or
“Act”), 52 U.S.C. §§ 30101–30126, 30141–30146, regulates
the financing of elections for federal office. For entities that
qualify as “political committees,” FECA requires compliance
with certain requirements, such as registering with the FEC,
                               3
filing periodic financial reports, and having a treasurer. See 52
U.S.C. §§ 30101–30104.

    The enforcement of FECA is triggered when a private
party lodges a complaint with the FEC. Id. § 30109(a)(1). The
Commission notifies the respondent and provides an
opportunity to explain. Id. The Commission then reviews the
complaint, and any response if one is filed, to determine
whether there is “reason to believe” the respondent committed
a violation. Id. § 30109(a)(2). If four of the six
Commissioners conclude there is reason to believe a violation
was committed, a full FEC investigation commences. Id.
Conversely, if there are fewer than four votes, the FEC
dismisses the administrative complaint. See id. §§ 30106(c),
30109(a)(2).

     If the Commission votes to dismiss the complaint, the
administrative complainant may sue the Commission in the
United States District Court for the District of Columbia. Id. §
30109(a)(8)(A). Judicial review under section 30109(a)(8)(A)
is limited, and a district court will reverse the Commission’s
dismissal of a complaint only if it was “contrary to law.” FEC
v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39
(1981).

     When a court declares the Commission’s dismissal
contrary to law, the Commission has 30 days to “conform [its]
declaration.” 52 U.S.C. § 30109(a)(8)(C). But a court order
cannot command a different outcome on remand; the
Commission may reach the same outcome relying on a
different rationale. See FEC v. Akins, 524 U.S. 11, 25 (1998).

    In October 2010, Public Citizen and others (collectively
“Public Citizen”) filed an administrative complaint with the
FEC against Crossroads GPS, a nonprofit corporation whose
                              4
purpose is to “research, educat[e], and communicat[e]” about
“policy issues of national importance.” J.A. 60. The complaint
alleged Crossroads violated FECA by “raising and spending
significant amounts of money to influence the 2010
congressional elections” without complying with the
organizational and reporting requirements applicable to
federal “political committees.” J.A. 8. Crossroads denied the
allegations in a formal response.

     The FEC’s legal department, the Office of General
Counsel, recommended the Commission “find reason to
believe” Crossroads violated FECA by “failing to organize,
register, and report as a political committee.” J.A. 56. Upon
voting, however, the Commission’s six members divided
evenly. Because of FECA’s four-vote requirement, the
Commission dismissed the complaint against Crossroads.

    Public Citizen filed suit and contended the Commission’s
denial of the administrative complaint was contrary to law.
Crossroads quickly filed a motion to intervene, which the
Commission opposed.

     The district court agreed Crossroads had standing to
intervene as a defendant. It found “re-exposure to an
administrative complaint that previously had been decided in
its favor” would “likely” cause Crossroads “to expend
significant resources before the FEC” in arguing for dismissal
of the complaint. J.A. 235. The court, however, rejected
Crossroads’ broader argument that reopening of the favorable
dismissal order, alone, and without consideration of the
accompanying litigation costs, created a significant potential
injury. The court found that injury was “too speculative” to
support standing because even if the Commission’s dismissal
order was upended, the Commission would still need “to vote
                                   5
to proceed with an investigation, and then vote to authorize a
civil enforcement action against Crossroads.” J.A. 234 n.1.

     Concerning intervention as of right, the court concluded
Crossroads had failed to satisfy the requirements of Federal
Rule of Civil Procedure 24. While acknowledging that
Crossroads’ and the Commission’s interests ultimately may
diverge, the court found their interests were aligned in
“defending the legality of the FEC’s dismissal.” J.A. 236. As
to this narrow interest—which, the court noted, “is the interest
upon which Crossroads GPS establishes standing”—the court
concluded the FEC could adequately represent Crossroads’
interest, even though the “FEC Office of General Counsel
recommended against dismissal below.” J.A. 236. 1

     We review the denial of a motion to intervene as of right
de novo for issues of law, clear error as to findings of fact,
and an abuse of discretion on issues that “involve a measure
of judicial discretion.” Fund for Animals, 322 F.3d at 732. As
to questions of standing, we review them de novo. Defenders
of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir.
2013).

                                  II.

     Article III standing is not a threshold determination that
courts normally make before allowing a defendant to enter a
case. The standing inquiry is generally “directed at those who
invoke the court’s jurisdiction,” and most defendants are
pulled into a case unwillingly. Roeder v. Islamic Republic of

1
  The district court also rejected Crossroads’ request for permissive
intervention. As will be explained below, the court erred in
rejecting intervention as of right, so there is no need for us to decide
the permissive intervention question.
                               6
Iran, 333 F.3d 228, 233 (D.C. Cir. 2003). But where a party
tries to intervene as another defendant, we have required it to
demonstrate Article III standing, reasoning that otherwise
“any organization or individual with only a philosophic
identification with a defendant—or a concern with a possible
unfavorable precedent—could attempt to intervene and
influence the course of litigation.” Deutsche Bank Nat’l. Trust
Co. v. FDIC, 717 F.3d 189, 195 (D.C. Cir. 2013) (Silberman,
J., concurring).

     The standing inquiry for an intervening-defendant is the
same as for a plaintiff: the intervenor must show injury in
fact, causation, and redressability. Deutsche Bank, 717 F.3d at
193. Crossroads currently faces no exposure to further
enforcement proceedings before the FEC because it won a
favorable ruling. But should Public Citizen’s suit succeed,
Crossroads’ victory would be lost. If that injury suffices for
standing purposes, then it rationally follows the injury is
directly traceable to Public Citizen’s challenge to the FEC
order; and Crossroads can prevent the injury by defeating
Public Citizen’s challenge in the district court proceedings.
Put differently, if Crossroads can prove injury, then it can
establish causation and redressability. See Roeder, 333 F.3d at
233–34. So the case for standing turns on whether Crossroads
alleges a sufficient injury in fact, which the Supreme Court
has described as including an invasion of a legally protected
interest that is “concrete and particularized,” and “actual or
imminent, not conjectural or hypothetical.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).

     The district court found that, if Public Citizen prevails,
Crossroads “likely would have to expend significant resources
[urging the FEC again] to dismiss the complaint.” J.A. 235.
But, the litigation expenses rationale already has been rejected
in this Circuit. See Am. Soc’y. for Prevention of Cruelty to
                               7
Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011)
(“Under our case law, an organization’s diversion of
resources to litigation or to investigation in anticipation of
litigation is considered a ‘self-inflicted’ budgetary choice that
cannot qualify as an injury in fact for purposes of standing.”);
Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1140
(D.C. Cir. 2011); Nat’l Taxpayers Union, Inc. v. United
States, 68 F.3d 1428, 1434 (D.C. Cir. 1995); Spann v.
Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990).

     Crossroads’ broader theory of injury fares better. Under
the current FEC order, Crossroads faces no further
enforcement proceedings and, as long as the order is in place,
it bars Public Citizen from pursuing the same grievance
against Crossroads. See FEC v. Nat’l Conservative Political
Action Comm., 470 U.S. 480, 488 (1985). In short, the
favorable FEC ruling provides Crossroads—as most favorable
agency actions would—with a significant benefit, similar to a
favorable civil judgment, and precludes exposure to civil
liability. Were Crossroads to lose that beneficial ruling, it
would return to the position of a respondent subject to
enforcement proceedings before a federal agency. Crossroads
understandably claims this loss would amount to concrete
injury.

    Our cases have generally found a sufficient injury in fact
where a party benefits from agency action, the action is then
challenged in court, and an unfavorable decision would
remove the party’s benefit. For example, in Military Toxics
Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the Chemical
Manufacturers Association (“CMA”) sought to intervene on
the side of the EPA in a lawsuit brought by the Military
Toxics Project, who sued to overturn an EPA rule favorable to
CMA. We concluded CMA had standing to intervene because
some of its members produced military munitions, and those
                               8
members benefited from the EPA’s rule, such that they
“would suffer concrete injury if the court grant[ed] the relief
the petitioners [sought].” Id. at 954. In Fund for Animals, the
Natural Resources Department of the Ministry of Nature and
Environment of Mongolia (“NRD”) sought to intervene as a
defendant in a suit challenging action by the Fish and Wildlife
Service (‘FWS”). 322 F.3d at 730. The Fund for Animals
challenged FWS’ failure to classify argali sheep as an
endangered species. NRD sought to intervene as a defendant,
alleging that, if the district court overturned the Secretary’s
order and argali sheep were declared endangered species,
Mongolia would lose tourist dollars associated with sheep
hunting and a consequent reduction in funding for its
conservation program. Id. at 733. We found NRD’s
“threatened loss of tourist dollars” and the “consequent
reduction in funding for Mongolia’s conservation program”
constituted a “concrete and imminent injury.” Id.

     By contrast, in Deutsche Bank, we found a potential
intervenor-defendant’s claim of injury too attenuated to
constitute a sufficient injury. There, holders of senior notes
issued by a failed bank sought to intervene as a defendant in
litigation between Deutsche Bank and the FDIC, which acted
as the failed bank’s receiver. In deciding the standing
question, we noted that the district court would need to reach
a particular legal conclusion—that the receiver retained the
underlying liability at issue—before the intervenor’s interest
would be at stake. Deutsche Bank, 717 F.3d at 193. We
consequently held that where a “threshold legal interpretation
must come out a specific way before a party’s interests are
even at risk, it seems unlikely that the prospect of harm is
actual or imminent.” Id. We also explained the real threat to
the note holders’ legally protected interests was not the
litigation at all, but instead whether the FDIC would enter into
                               9
what the note holders regarded as an unfavorable settlement.
Id.

     The claimed injury here falls on the Fund for Animals
and Military Toxics Project side of the line. Those cases stand
for the proposition that even where the possibility of
prevailing on the merits after remand is speculative, a party
seeking to uphold a favorable ruling can still suffer a concrete
injury in fact. In Fund for Animals, for example, we did not
require the NRD to show that overturning the Secretary’s
ruling would certainly result in a declaration that argali sheep
are an endangered species. Crossroads currently claims a
significant benefit from the FEC’s dismissal order. As long as
it is in place, Crossroads faces no further exposure to
enforcement proceedings before the FEC related to the
complaint, nor is it exposed to civil liability via private
lawsuit. See Nat’l Conservative, 470 U.S. at 488–89. Losing
the favorable order would be a significant injury in fact. And,
unlike Deutsche Bank, there is no threshold legal
determination that might obviate Crossroads’ interest in
upholding the dismissal order.

     In one sense, Crossroads’ threatened injury is even
greater than the injuries we found sufficient in our previous
cases. The defendants in those cases sought to uphold agency
action affecting them indirectly. In Fund for Animals, the
NRD sought to intervene because the Secretary’s order
tangentially benefited Mongolia’s tourist industry and
conservation efforts. 322 F.3d at 733. In Military Toxics
Project, the defendant claimed its members benefited
indirectly from an EPA rule regarding munitions. 146 F.3d at
954. Here, by contrast, the agency action at issue involved
potential direct regulation of Crossroads—i.e., a
determination of whether Crossroads was a political
committee required to register with the FEC. See 52 U.S.C. §§
                               10
30102–30104. Crossroads thus has a significant and direct
interest in the favorable action shielding it from further
litigation and liability; and the “threatened loss” of that
favorable action constitutes a “concrete and imminent injury.”
Fund for Animals, 322 F.3d at 733.

     The Commission contends Crossroads must establish
Public Citizen will prevail in order to prove the injury in fact.
But our cases have never required, as the cost of admission,
an intervenor-defendant to prove the merits of its adversary’s
case. For standing purposes, it is enough that a plaintiff seeks
relief, which, if granted, would injure the prospective
intervenor. See id.

    The Commission also claims the specter of the district
court invalidating the dismissal order portends mere
speculative harms. The Commission maintains there is no
guarantee it would ultimately file a civil enforcement suit
against Crossroads even if the district court were to invalidate
the order. It could conceivably vote to dismiss the
enforcement proceedings again on other grounds.

     The Supreme Court considered and rejected a similar
claim in Clinton v. City of New York, 524 U.S. 417 (1998).
There, New York City challenged the President’s line-item
veto authority after the President vetoed a provision shielding
the state from liability for certain tax payments. The vetoed
statute allowed the state to file for a statutory waiver from tax
liability with Department of Health and Human Services
(“HHS”). Importantly, HHS had yet to rule on New York’s
waiver at the time the state filed the lawsuit. Id. at 422. On
appeal, the government objected to standing, arguing the
City’s “contingent liability” would never materialize because
HHS had not yet acted on the state waiver request. Id. at 430.
The Court rejected that argument and compared the
                               11
President’s actions to a “judgment of an appellate court
setting aside a verdict for the defendant and remanding for a
new trial of a multibillion-dollar damages claim.” Id. at 430–
31. “Even if the outcome of the second trial is speculative,”
the Court held, “the reversal, like the President’s cancellation,
causes a significant immediate injury by depriving the
defendant of the benefit of a favorable final judgment.” Id. at
431. Here, even if the district court cannot command the
precise enforcement route the Commission must take on
remand, invalidating the dismissal order would extinguish the
current barrier to enforcement and would limit the
Commission’s discretion in the future. Whatever the ultimate
outcome, Crossroads has a concrete stake in the favorable
agency action currently in place.

                              III.

     The Commission also argues that prudential standing
prevents the court from hearing this case because Crossroads’
interests do not fall within the zone of interests FECA
protects. We disagree.

     We have applied the prudential standing doctrine to
intervenor-defendants under the theory that it was a
“jurisdiction[al] concept” on par with Article III standing. See
Deutsche Bank, 717 F.3d at 194 n.4. But the Supreme Court’s
decision in Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S.Ct. 1377 (2014), makes plain the zone of interests
test no longer falls under the prudential standing umbrella. Id.
at 1386–87. Nor is it a jurisdictional requirement. Id. at 1387
n.4. Instead, the zone of interest test is now “a merits issue.”
United States v. Emor, No. 13-3071, 2015 WL 2061817 at *5
(D.C. Cir. May 5, 2015). Whether a “plaintiff” comes within
the zone of interests, the Court stated, “is an issue that
requires us to determine, using traditional tools of statutory
                              12
interpretation, whether a legislatively conferred cause of
action encompasses a particular plaintiff’s claim.” Lexmark,
134 S. Ct. at 1387. Or, put another way, a court asks whether
the plaintiff “has a cause of action under the statute.” Id.

     We asked the parties to address how the zone of interests
test applies to intervening defendants after Lexmark. The best
the Commission could offer was that “Lexmark does not upset
this Court’s body of law taking standing and related threshold
concepts originating as requirements for plaintiffs,” and
extending them to “defendant-intervenors.” Suppl. Brief for
the Federal Election Commission at 6–7, Public Citizen v.
FEC, No. 14-5199 (D.C. Cir. Feb. 10, 2015). Even if it were
true that Lexmark changes nothing (which, we think, cannot
possibly be the correct answer), we would still need to know
how a standard asking whether a plaintiff has a proper cause
of action applies to a would-be defendant, who, self-
evidently, is not bringing a new cause of action.

     In our view, without a jurisdictional basis, the zone of
interests test should no longer apply to intervening
defendants. In a motion to intervene under Rule 24, “the
question is not whether the applicable law assigns the
prospective intervenor a cause of action. Rather, the question
is whether the individual may intervene in an already pending
cause of action.” Jones v. Prince George’s Cnty., Md., 348
F.3d 1014, 1017–18 (D.C. Cir. 2003). Indeed, as Rule 24’s
plain text indicates, “intervenors of right need only an
‘interest’ in the litigation—not a ‘cause of action’ or
‘permission to sue.’” Id. at 1018 (citing FED. R. CIV. P.
24(a)(2)).

    Where an intervenor-defendant establishes Article III
standing and meets the dictates of Federal Civil Rule 24, there
is no need for another layer of judge-made prudential
                                13
considerations to deny intervention. Cf. Susan B. Anthony List
v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (“To the extent
respondents would have us deem petitioners’ claims
nonjusticiable on grounds that are prudential, rather than
constitutional, that request is in some tension with our recent
reaffirmation of the principle that a federal court’s obligation
to hear and decide cases within its jurisdiction is virtually
unflagging.”). Article III standing will already forbid potential
intermeddlers with limited interests beyond the dispute at
issue, see Deutsche Bank, 717 F.3d at 195–96 (Silberman, J.,
concurring), as will Rule 24, for that matter, see FED. R. CIV.
P. 24(a)(2) (an intervenor must claim “an interest relating to
the property or transaction that is the subject of the action”). If
a district court has already found the plaintiff stated a valid
cause of action, then it is not apparent what the zone of
interests test can bring to the table; because, in any event, the
court must still hear the plaintiff’s claim (albeit with one less
party’s input). For these reasons, we think the zone of
interests has no applicability to an intervening defendant in a
post-Lexmark world.

                               IV.

     In deciding whether a party may intervene as of right, we
employ a four-factor test requiring: 1) timeliness of the
application to intervene; 2) a legally protected interest; 3) that
the action, as a practical matter, impairs or impedes that
interest; and 4) that no party to the action can adequately
represent the potential intervenor’s interest. Deutsche Bank,
717 F.3d at 192.

    Two of those factors can be dealt with summarily. The
Commission has never questioned timeliness, most likely
because Crossroads filed an intervention motion before the
FEC had even entered an appearance. And since Crossroads
                               14
has constitutional standing, it a fortiori has “an interest
relating to the property or transaction which is the subject of
the action.” Fund for Animals, 322 F.3d at 735 (holding the
standards for constitutional standing and the second factor of
the test for intervention as of right are the same); see also
Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1018–19
(D.C. Cir. 2003).

     The third factor also favors Crossroads. An adverse
judgment in the district court would impair Crossroads’
defense in a new proceeding because a judicial
pronouncement that the FEC’s dismissal was contrary to law
would make the “task of reestablishing the status quo . . .
[more] difficult and burdensome.” Funds for Animals, 322
F.3d at 735. And should Public Citizen seek a subsequent
civil enforcement suit, the district court’s ruling would have
persuasive weight with a new court. See Roane v. Leonhart,
741 F.3d 147, 151 (D.C. Cir. 2014) (holding that “a decision
rejecting the inmates’ claims could establish unfavorable
precedent that would make it more difficult for [intervenor] to
succeed on similar claims if he brought them in a separate
lawsuit of his own”).

     The district court denied intervention as of right solely on
the fourth factor. It reasoned that the Commission could
adequately represent Crossroads’ interests because their
interests were aligned in defending the legality of the
dismissal order.

    To begin with, the district court never acknowledged that
we have described this last requirement for intervention as
“not onerous,” Fund for Animals, 322 F.3d at 735, or “low,”
id. at 736 n.7, and that a movant “ordinarily should be
allowed to intervene unless it is clear that the party will
provide adequate representation,” United States v. Am. Tel. &
                               15
Tel. Co., 642 F.2d 1285, 1293 (D.C. Cir. 1980). Nor did the
court acknowledge that we look skeptically on government
entities serving as adequate advocates for private parties. See
Fund for Animals, 322 F.3d at 736; Natural Res. Def. Council
v. Costle, 561 F.2d 904, 912–13 (D.C. Cir. 1977).

     In addition, by treating general alignment as dispositive,
the district court went against the weight of authority in this
Circuit. In Fund for Animals, we reversed a denial of
intervention even though the federal agency and prospective
intervenor undisputedly agreed that the agency’s current rules
and practices were lawful. 322 F.3d at 726. In Costle, we
stressed that even when the interest of a federal agency and
potential intervenor can be expected to coincide, “that does
not necessarily mean [ ] adequacy of representation is ensured
for purpose of Rule 24(a)(2).” 561 F.2d at 912. The district
court thus applied the wrong legal standard to Crossroads’
request for intervention, and a court, by definition, “abuses its
discretion when it makes an error of law.” Koon v. United
States, 518 U.S. 81, 100 (1996).

     It is apparent the Commission and Crossroads hold
different interests, for they disagree about the extent of the
Commission’s regulatory power, the scope of the
administrative record, and post-judgment strategy. By arguing
there was no sufficient injury for standing purposes, the
Commission even disagrees that Crossroads has any
cognizable interest in this case. Those disagreements are
understandable; the underlying issues before the district court
are the under-enforcement of federal law and the authority of
the FEC—an agency that could seek to regulate Crossroads
directly and immediately after its dismissal order is revoked.
In such circumstances, Crossroads should not need to rely on
a doubtful friend to represent its interests, when it can
represent itself.
                              16

     Crossroads easily met the minimal burden of showing
inadequacy of representation and should be allowed to
intervene as of right.

                              V.

    For the foregoing reasons, the district court’s judgment is

                                                     Reversed.
