dissenting in Nos. 85-1231 & 85-1348:
Compared to the remote and speculative injuries alleged as the basis for standing in these two cases, the harm rejected as a basis by the Supreme Court in its latest expression on the subject was positively imminent. It is impossible to reconcile our *356entertainment of these suits with a long line of precedent culminating, most recently, in Diamond v. Charles, — U.S. —, 106 S.Ct. 1697, 1705-07, 90 L.Ed.2d 48 (1986), where the effect upon a pediatrician’s patient pool of a judicial ruling facilitating abortions was held too speculative to sustain suit. If the injuries hypothesized by the interest groups suing in the present cases are sufficient, it is difficult to imagine a contemplated public benefit under any law which cannot — simply by believing in it ardently enough — be made the basis for judicial intrusion into the business of the political branches. What we achieve today is not judicial vindication of private rights, but judicial infringement upon the people’s prerogative to have their elected representatives determine how laws that do not bear upon private rights shall be applied.
Because the standing issues presented by the two cases are virtually identical, I discuss them both in this single dissent.
I
“Those who do not possess Art. Ill standing may not litigate as suitors in the courts of the United States.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475-76, 102 S.Ct. 752, 760-61, 70 L.Ed.2d 700 (1982) (footnote omitted). The Supreme Court has set forth the following test for this prerequisite:
[ A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).
Id. at 472, 102 S.Ct. at 758 (footnote omitted). I think it abundantly clear that the Center for Auto Safety, Public Citizen, and the Union of Concerned Scientists have not passed this test.1
Petitioners observe at the outset that they have filed other petitions against similar NHTSA actions, and that those petitions were not dismissed for lack of standing. See Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C.Cir.1985); Public Citizen v. Steed, 733 F.2d 93 (D.C.Cir.1984); Center for Auto Safety v. NHTSA, 710 F.2d 842 (D.C.Cir.1983); Center for Auto Safety v. Claybrook, 627 F.2d 346 (D.C.Cir.1980). In those cases, however, petitioners’ standing was neither challenged by NHTSA nor discussed by the court. It is well established that cases in which jurisdiction is assumed sub silentio do not serve as binding authority for the proposition that jurisdiction exists. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984); Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974); United States v. More, 7 U.S. (3 Cranch) 159, 172, 2 L.Ed. 397 (1805) (Marshall, C.J.).
In addition, however, petitioners make a rather half-hearted effort to allege injury which they or their members will suffer unless this court grants them the requested relief. To satisfy Article III standing requirements, however, the asserted injury must be “distinct and palpable,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), “particular [and] concrete,” United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 2946, 41 L.Ed.2d 678 (1974), and “specific [and] objective,” Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972), rather than “conjectural [or] hypothetical,” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 *357(1983), “remote [and] unsubstantiated by allegations of fact,” Warth v. Seldin, 422 U.S. at 507, 95 S.Ct. at 2209, “speculative,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-46, 96 S.Ct. 1917, 1926-28, 48 L.Ed.2d 450 (1976), or “abstract,” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Moreover, when a litigant alleges only future injury, the harm must be “ ‘certainly impending,’ ” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)), and “real and immediate,” City of Los Angeles v. Lyons, 461 U.S. at 102, 103 S.Ct. at 1665. Although “[t]he fact that harm or injury may occur in the future is not necessarily fatal to a claim of standing[,] ... [it can] lessen the concreteness of the controversy and thus mitigate [sic] against a recognition of standing.” Harrington v. Bush, 553 F.2d 190, 208 (D.C.Cir.1977) (footnote omitted).
The petitioners’ first allegation of injury rests on the following chain of hypotheses and predictions: NHTSA’s anticipated delay in promulgation of future standards will make impossible the establishment of “maximum feasible” fuel-economy standards, because NHTSA must give manufacturers sufficient lead time if it wishes to set standards that require manufacturers to alter their production plans; the unlawfully low standards already promulgated, and those anticipated as a result of NHTSA’s delay, have resulted and will result in increased sales of fuel-inefficient light trucks and decreased sales of fuel-efficient light trucks; such a sales pattern will result in increased gasoline consumption; increased gasoline consumption will lead to a reduction in the United States’ energy reserves; and, finally, such a reduction will result in longer gasoline lines and a greater risk of gasoline rationing in the event that foreign oil supplies are interrupted. I think it apparent that this scenario, far from identifying a concrete threat of certainly imminent “specific future harm,” Laird v. Tatum, 408 U.S. at 14, 92 S.Ct. at 2326, is nothing more than “an ingenious academic exercise in the conceivable,” in which petitioners have merely “imaginefd] circumstances in which [they] could be affected by the agency’s action.” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416-17, 37 L.Ed.2d 254 (1973) (emphasis added). See, e.g., Diamond v. Charles, 54 U.S.L.W. at 4422, 106 S.Ct. at 1705-07; City of Los Angeles v. Lyons, 461 U.S. at 105-10, 103 S.Ct. at 1666-70; O’Shea v. Littleton, 414 U.S. at 496-99, 94 S.Ct. at 676-78.
Petitioners also assert that they have standing as representatives of those of their members who wish to purchase the most fuel-efficient vehicles possible; that the current 1985 and 1986 standards do not achieve the maximum attainable levels of fuel economy; that NHTSA’s failure to issue standards for 1989 and thereafter in a timely fashion will prevent the agency from imposing standards that achieve the maximum attainable levels of fuel economy; and that, as a consequence, the number of fuel-efficient light trucks and the range of fuel-efficient model options available to their members for purchase has been and will continue to be limited. But. petitioners make no effort to identify any particular types of fuel-efficient light truck or any particular fuel-saving model options that their members desire but are or will be unable to purchase. Although it is as true of this court as of the Supreme Court that our standing cases have not exhibited “complete consistency,” Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760, I think it clear that petitioners’ bald assertion, unsupported by concrete factual allegations, that unidentified members of their organizations 2 may be unable to purchase unidentified types of fuel-efficient light trucks or *358light-truck model options is simply insufficient to fulfill the Article III requirement that complainants allege facts sufficient to establish that they will suffer a concrete, palpable, and distinct injury. See, e.g., United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1378-80 (D.C.Cir.1984); American Society of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145, 148-49 (D.C.Cir.1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978).
II
In addition to failing to allege any injury sufficient to give them Article III standing, petitioners also have failed to establish that their members’ alleged inability to purchase unidentified types of light trucks or light-truck model options is “likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 38, 96 S.Ct. at 1924.
A
In No. 85-1348, petitioners allege that NHTSA’s. untimely issuance of the standards prevents the agency from imposing standards which require light-truck manufacturers to make substantial alterations in their production plans, because those plans must be made well in advance. But even if that is true, petitioners still must allege facts sufficient to demonstrate that in the event of timely issuance it would be substantially likely that their unidentified members’ desires to purchase unspecified products would be satisfied. See Von Aulock v. Smith, 720 F.2d 176, 180 (D.C.Cir.1983); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258, 261-66 (D.C.Cir.1980). This petitioners have utterly failed to do.
Even if I were inclined to attempt to remedy that failure — and I am not — petitioners’ own arguments cast serious doubt on whether such a demonstration could ever be made. An order by this court compelling NHTSA to issue future standards in a timely fashion would remedy the injury alleged by petitioners only if (1) NHTSA were thereby enabled to issue standards significantly higher than those it could have issued had the standards been issued dilatorily; (2) manufacturers attempted to meet the lower standards rather than paying noncompliance fines; and (3) manufacturers chose to meet the lower standards by introducing light trucks or light-truck model options that would otherwise not have been available, rather than by, for example, merely selling relatively greater numbers of their already-existing fuel-efficient light trucks. Petitioners themselves make clear that each of these contingencies is nothing near to certain. As to the first, petitioners’ briefs indicate their agreement with NHTSA’s repeated observations that, because of the long lead times necessary for manufacturers to introduce new technology into their manufacturing processes, NHTSA has “only limited” opportunities to set standards which would require such innovation even when the standards are promulgated well over eighteen months prior to the beginning of the relevant model year. See Brief for Petitioners (No. 85-1348) at 12-13; Reply Brief for Petitioners (No. 85-1348) at 14-15. As to the second contingency, petitioners have noted in a slightly different context that when NHTSA sets a demanding standard, manufacturers can be expected to pay noncompliance fines (and perhaps to pass them through to customers) rather than take drastic measures to comply with the standard. See Brief for Petitioners (No. 85-1231) at 50-51; Reply Brief for Petitioners (No. 85-1231) at 11-15. Finally, as to the third contingency, petitioners forcefully contend that light-truck manufacturers have substantial ability to change the average fuel efficiency of their light-truck fleets merely by selling fewer fuel-inefficient light trucks and more fuel-efficient light trucks. See Brief for Petitioners (No. 85-1231) at 52-54.
In light of the doubt that surrounds each of its component links, and petitioners’ failure to adduce any evidence as to those links, the chain of events that would have *359to occur if an order compelling NHTSA to promulgate future standards in a timely fashion were to remedy the alleged inability of petitioners’ members to purchase the types of light trucks they desire seems to me far too speculative to justify the exercise of judicial power. See, e.g., Diamond v. Charles, 54 U.S.L.W. at 4422, 106 S.Ct. at 1705-07; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 40-46, 96 S.Ct. at 1925-28; Safir v. Dole, 718 F.2d 475, 479-81 (D.C.Cir.1983), cert. denied, 467 U.S. 1206, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984); Physicians’Education Network, Inc. v. HEW, 653 F.2d 621, 623-24 (D.C.Cir.1981).
B
In No. 85-1231, petitioners concede, as they must, that an order vacating the current standards for model years 1985 and 1986 and setting new standards of 21.0 miles per gallon for both model years (the relief petitioners request) “will have no effect” -on the products available to their members in model year 1985 (which has ended) and “is unlikely to have much effect” on the products available in model year 1986 (which is approximately half over). Reply Brief for Petitioners (No. 85-1231) at 9-10. They nevertheless contend that retroactively setting higher standards for model years 1985 and 1986 will threaten manufacturers with civil penalties for their failure to comply with the higher standards. See 15 U.S.C. § 2008. Because penalties for inadequate past performance can be avoided by exceeding standards in future years, see 15 U.S.C. § 2002(i )(1)(B)(i), (i)(1)(C), (i)(3), petitioners conclude that manufacturers will likely introduce new technology that they otherwise might not have introduced, which technology will then become available to petitioners’ fuel-conscious members.
The most obvious difficulty with this scenario is its premise. I think it apparent that NHTSA could not lawfully impose civil penalties on light-truck manufacturers who, although they complied with the standards for model years 1985 and 1986 during those model years, did not comply with a new, higher standard set after the model years were over and applied retroactively. See, e.g., Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156-57 (D.C.Cir.1986); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-37 (6th Cir.1978); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). And even if one were to assume that NHTSA had such power, there is no substantial likelihood that the series of events petitioners have constructed will come to pass after petitioners are granted the relief they have requested. As has been remarked above, manufacturers might well react to the threat of civil penalties either by merely paying them or by altering, the marketing of currently available products, rather than by installing the unidentified new technology petitioners’ members allegedly desire to purchase.
As far as can be discerned from the allegations of these plaintiffs, the question whether there is adequate reason for late issuance of light-truck fuel economy standards is of interest only to the society at large, and should be resolved through the political mechanisms by which that society acts. There is no basis for believing that these plaintiffs have suffered the personal hurt that alone justifies judicial interference with execution of the laws. I believe that the petition for review in No. 85-1231 and petition for a writ of mandamus in No. 85-1348 should be dismissed for lack of jurisdiction.
. I agree with the majority that the Environmental Policy Institute lacks standing. See Maj. op. at 1328 n. 41 (No. 85-1231).
. Cf. Warth v. Seldin, 422 U.S. at 502, 95 S.Ct. at 2207 ("Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”).