concurring:
I agree that Consumer Alert has established its standing to challenge NHTSA’s decision not to reduce the CAFE standards for MYs 1987-88 and 1989 below 26.0 and 26.5 mpg respectively. First, as to the injury-in-fact constitutionally required for standing: it appears that NHTSA’s decision caused at least some automobile manufacturers to add a surcharge during those model years, as they had in prior model years, to the retail prices of their larger and less fuel-efficient cars, in order to decrease the number of such units sold and thus to increase their achieved CAFE. Thus, if the 1987-88 and 1989 CAFE standards had been set lower, the manufacturers would have lowered or removed the regulation-induced surcharge, thus lowering the prices paid by consumers for larger cars.
Second, as to prudential standing under EPCA: because Consumer Alert’s members want to buy larger cars that afford greater safety protection to their occupants, and Congress intended, when it enacted EPCA, to preserve such choices for consumers, petitioner comes within the zone of interests protected by that statute. If that is a requirement for standing under EPCA — as I believe it is notwithstanding contrary circuit law, which has been thrown into doubt by an intervening Supreme Court decision — then petitioner is qualified on that ground as well to pursue its claim.
I
Despite the indirection with which both NHTSA and the automobile manufacturers seem to approach the point, it is clear from the records compiled in these rulemaking proceedings that General Motors and Ford were adding a premium to the price of their larger cars prior to MY 1987. In its Notice of Proposed Rulemaking for MYs 1987-88, NHTSA reported that “Both GM and Ford have undertaken pricing actions to discourage large car sales and the purchase of optional, less fuel-efficient engines.” 51 Fed.Reg. 2912, 2918 (Jan. 22, 1986). So far as that statement reveals, of course, the manufacturers might merely have discounted the prices of their smaller cars, thus effectively increasing the marginal price that consumers would have to pay for *19incremental automotive size. It is reasonably clear, however, that the manufacturers were doing more than just discounting small cars; in the sentence immediately following the one just quoted, the agency telegraphs that the previously-mentioned “pricing actions to discourage large car sales” included the imposition of a regulation-induced price premium: “Below-market financing offerings, cash discounts, and non-cash consumer and dealer incentives were some of the other measures undertaken by Ford and GM to increase their CAFE through marketing actions.” By referring to these various means of discounting the prices of small cars as “other measures,” NHTSA makes irresistible the inference that the “pricing actions” to which it adverted in the preceding sentence were indeed surcharges. When NHTSA promulgated its Final Rule for 1987 and 1988, it was more explicit, stating that “GM and Ford have already raised the prices of their larger cars and engines as part of their efforts to improve CAFE. . . .” 51 Fed. Reg. 35,594, 35,604 (Oct. 6, 1986).
NHTSA clearly understands that Congress instructed it to administer the CAFE program so as not to induce “product restrictions.” It is apparent that the agency does-not interpret a manufacturer’s reducing the price of its small cars in order to achieve compliance with a CAFE standard as a form of product restriction, and that is reasonable enough. It also seems, however, that the agency does not regard a surcharge on larger cars, imposed solely in order to discourage their sale, as a product restriction, at least until the surcharge rises to some (unspecified) level of significance. Thus, when the agency acknowledged that “GM and Ford have already raised the prices of their larger cars and engines as part of their effort to improve CAFE,” it did not see such increases as amounting to product restrictions. Contemplating the price effect that a still-higher CAFE standard would have, NHTSA went on to observe: “While very large price increases would likely reduce sales of less fuel-efficient vehicles significantly, such increases would amount to product restrictions.” 51 Fed.Reg. 35,594, 35,604 (Oct. 6, 1986).
We need not decide today whether the agency oversteps its authority under EPCA when it imposes a CAFE standard that manufacturers can meet only by imposing a surcharge upon their larger cars. Since the demand for a product is decreased as its price is increased — which is the whole point of the manufacturers’ using a surcharge to discourage sales — it would seem that any regulation-induced price premium amounts to something of a “product restriction” in terms both of economics and of ordinary language. Since manufacturers may have some discretion, however, in deciding whether to meet a given CAFE standard merely by relying entirely upon discounting the prices of small cars, or by relying in addition or instead upon increasing the prices of large cars, it may be consistent with Congressional intent for the agency to disregard the product-restricting effect of price increases below some level of significance. Again, that precise issue is not before us today.
The standing issue that is before us, however, is more readily resolved in light of the agency’s acknowledgement that the two largest American automobile manufacturers have “raised the prices of their larger cars and engines” in an effort to achieve compliance with the CAFE standard in effect for 1986, which was continued through 1987 and 1988 and increased for 1989. In a competitive market such as that for automobiles, we may confidently presume that those manufacturers could not continue to impose the CAFE-induced surcharge after the CAFE standards that occasioned it were relaxed by the agency. The CAFE program imposes a marginal cost on the manufacturer whose average fuel economy falls short of the mandated minimum. Lowering that minimum lowers a manufacturer’s CAFE costs and, through the transmission belt of competition, the price to consumers. Failure to reduce the CAFE standard, as Consumer Alert requested, prevented that price reduction, and thus imposed an economic penalty — as palpable an injury-in-fact as any — upon petitioner’s members.
*20Thus, there is no need for the court to rely upon, as it does, the extensive evidence designed to show that raising the CAFE standard above 26.0, and specifically to 27.-5, would have induced further product restrictions. Evidence concerning the effects of a CAFE standard above 26.0 cannot establish a linear relationship between CAFE and “product restrictions” at points below 26.0. That is irrelevant, however, when one sees that the manufacturers had been impelled to add a surcharge when the CAFE standard was 26.0 and that competition would have required them to reduce or eliminate that surcharge had NHTSA reduced the CAFE standard below that point.
For the same reason, the injury to petitioners here is not the sort of speculative claim that was presented to the en banc court in CAS II. There, various consumer representatives challenged an agency rule that credited automobile manufacturers retroactively for changes in the way that fuel economy is measured. The injury component of the challengers’ standing depended upon the prediction that, as a result of the CAFE credits that the manufacturers would receive, they would “produce a smaller variety of fuel-efficient cars.” 847 F.2d at 868. (Buckley, J.). Here, we are not asked to predict, nor to accept any prediction about, the change in the product line that the manufacturers will offer. No technological or lead time barriers need be assessed. See id. at 872-73 (Buckley, J.).
Whatever the difficulties associated with predicting the nature and incidence of the burden that results when a regulation is made more constraining, it is relatively easy to see — at least in a competitive market — how some consumers will benefit if a regulatory constraint is relaxed, and therefore how they continue to be burdened when the regulatory agency denies their request that it be relaxed.
II
Having no doubt that Consumer Alert satisfies the constitutional requirements for standing to challenge NHTSA’s decisions setting CAFE standards under EPCA, I pause to consider its prudential standing. While this court held in CAS I that Congress intended to eliminate all prudential requirements for standing to sue under EPCA, it seems to me that our position must be revisited in light of the Supreme Court’s subsequent decision in Clarke v. Securities Industry Association, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). See Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 921 (D.C.Cir.1989).
In Clarke, the Supreme Court reiterated that the prudential limitations on standing do apply to judicial review under § 702 of the Administrative Procedure Act. That statute contemplates review at the instance of any person “suffering legal wrong because of agency action or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. In light of the facial similarity between that language and the provision of EPCA authorizing review at the behest of “[a]ny person who may be adversely affected” by an agency action under EPCA, the court’s conclusion in CAS I that Congress intended to eliminate all prudential barriers to standing under EPCA no longer seems tenable. (Indeed, on close inspection, the standing authorized in EPCA seems, if anything, narrower than that contemplated by the APA.) Consumer Alert must therefore show that its members’ interest in safety falls “arguably within the zone of interests to be protected or regulated” by EPCA. Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972), quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). This it has done.
Consumer Alert alleges that NHTSA’s decision impairs its members’ ability to purchase the larger — and therefore less fuel-efficient but safer — cars that they prefer. Preventing consumers from exercising such choice — i.e., regulating their purchases — was clearly the intent of the Congress that enacted EPCA, and that intent is reflected in the surcharges Consumer Alert’s members must pay. Because consumers’ choices are thus regulated by the rules *21propounded under EPCA, they have prudential standing to challenge NHTSA’s implementation of the statute to ensure that it faithfully complies with Congress’s intent to further the goal of fuel efficiency without “unduly limiting consumer choice as to capacity and performance of motor vehicles.” H.R.Rep. No. 94-340, 94th Cong., 1st Sess. at 87 (1975).
HI
For these reasons I join the court in concluding that Consumer Alert has standing, on behalf of its members, to challenge NHTSA’s rulemaking. I join in the opinion of the court except to the extent that our reasoning to this preliminary point diverges.