dissenting:
I agree with the principles the court expresses in finding standing for the petitioners, two railroad associations called collectively the “AAR”, but not with the court’s application of those principles. The per cu-riam opinion states that the AAR “makes colorable legal arguments that” its injury— regulation by both the Federal Railroad Administration (“FRA”) and the Occupational Safety & Health Administration (“OSHA”), rather than just the FRA — “is caused by the FRA’s adoption of the rule, and is redressa-ble by the relief it seeks.” Maj.Op. at 585.
Given the statutory provision under which the FRA’s affirmative regulation would displace regulation by OSHA, § 4(b)(1) of the Occupational Safety and Health Act (the “OSH Act”), 29 U.S.C. § 653(b)(1) (1988), I can understand how AAR’s injury would be redressed by an order requiring the FRA to regulate more comprehensively. As the cases cited by the majority, Maj.Op. at 586, explain, FRA regulation of a particular working condition (including an FRA rule providing that a particular working condition should not be regulated at all) would likely operate, under section 4(b)(1), to preclude OSHA regulation of that working condition.
But the AAR has not sought comprehensive FRA regulation of railroad working conditions. Instead, it has (except for a throwaway line in its Reply Brief) sought only an order vacating one paragraph of the FRA’s newly promulgated rules. The paragraph reads in its entirety as follows:
*591(d) Any working conditions involving the protection of railroad employees working on railroad bridges not within the subject matter addressed by this Chapter, including respiratory protection, hazard communication, hearing protection, welding and lead exposure standards, shall be governed by the regulations of the U.S. Department of Labor, Occupational Safety and Health Administration.
49 C.F.R. § 214.101(d) (1993).
In effect, this paragraph represents the FRA’s thoughts about the effect of its non-comprehensive regulatory scheme on OSHA’s authority to regulate railroads. The test of OSHA’s authority would presumably come when a railroad resisted OSHA’s adoption or enforcement of a rule purportedly applied to railroads and invoked the preclusion provision of § 4(b)(1) of the OSH Act. As I cannot imagine the thoughts of the FRA reflected in § 101(d) swaying any court addressing such an issue, and as the AAR has presented no theory of judicial review under which a court would defer to such thoughts, I do not think that the AAR’s argument as to the effect of § 101(d) or the redress to be achieved by its elimination is even colorable.