concurring and dissenting:
I, too, conclude that Chem Service has standing under the FTTA to seek a judicial determination that the defendants’ agreements are contracts expressly excluded from the authorization of that Act rather than CRADAs authorized thereby. I join Sections I, II and III of the opinion. I am unable to join Section IV, however.
I understand Chem Service’s second claim to rest on the following understanding of the MOU and its position with respect thereto. In the MOU, the EPA created a regulatory program designed to provide reference material users with a basis for assessing the quality of reference materials offered in the marketplace. As a part of that program, the EPA committed itself to develop minimum quality standards (“specifications”), in collaboration with A2LA, and thereafter to certify only those products as EPA approved which meet those minimum standards. The EPA agreed as part of the program that those products found by A2LA to meet the agreed upon specifications could be represented as “certified by A2LA to USEPA specifications.” Chem Service has participated in this program by submitting its products to A2LA and securing its certification that those products meet USEPA specifications.
Chem Service alleges that, despite the EPA’s commitment under its program to certify only those products that meet the agreed upon specifications, EPA is currently certifying products produced before the MOU that do not meet the agreed upon specifications. It is this practice that Chem Service claims to be an arbitrary and capricious implementation of this regulatory program, one that has inflicted competitive injury upon Chem Service.
Chem Service thus alleges that it participated in a certification program which the EPA had sponsored in order to establish standards for reference materials and that, through its participation, it had earned the right to represent its product as meeting the EPA specifications. Despite its reliance on the EPA’s commitment under that program and Chem Service’s investment in satisfying the EPA standards, Chem Service allegedly now finds itself confronted with a situation in which the EPA is certifying as EPA approved a product that does not meet the standards established in the specifications.
Understandably, neither Chem Service nor the defendants assert that the EPA is not authorized to establish minimum standards for a product that can be represented as meeting EPA specifications.14 Where an agency adopts a regulatory program that it is authorized to adopt and a private party is in the zone of interest which the program is intended to serve, it necessarily follows, I believe, that the party is within the zone of interest of the enabling statute and may challenge the validity of the program or its implementation.
One of the primary objectives of the EPA’s program is to encourage producers to make the investment necessary to meet its specifi*1270cations and, to that end, to protect those who are willing to make that investment against producers who are not. Accordingly, it seems clear to me that Chem Service, having participated in the program and having produced reference materials meeting the EPA’s specifications, is within the zone of interest of the EPA’s program and has standing to challenge the certification of non-conforming products as products meeting the EPA’s specifications.
I would instruct the district court to entertain Chem Service’s second claim.
. Pursuant to Title 5, Chapter 9, of the United States Code, President Nixon transferred to the EPA statutory authority for a variety of governmental research, monitoring and standard setting activities regarding toxic substances, as well as authority to perform functions incidental to these activities. Reorganization Plan No. 3 of 1970, 35 Fed.Reg. 15623, reprinted in 5 U.S.C. app. at 1343 (1988) and 42 U.S.C. at 965 (1988), as amended by Pub.L. No. 98-80, 97 Stat. 485; see also 40 C.F.R. § 1.3. The EPA also has been directed by Congress to “cany out [the Toxic Substances Control Act] in a reasonable and prudent manner." 15 U.S.C. § 2601. In particular, the EPA is required to "conduct such research, development and monitoring as is necessary to carry out the purposes of” that Act and to "establish ... monitoring techniques and instruments which may be used in the detection of toxic chemical substances and'mixtures and which are reliable, economical, and capable of being implemented under a wide variety of conditions.” 15 U.S.C. §§ 2609(a) and (d). Reorganization Plan No. 3 of 1970 and the Toxic Substance Control Act thus provide ample authority for the EPA to establish a quality control program for. reference materials.