(concurring) :*
Although I am unable to join in the rationale underlying Judge Bazelon’s basis *102for standing of Appellees, nonetheless I am prepared to agree with the result in order to make a majority holding for review of the merits of a subject of such importance. I do so in order to reach consideration of the merits for such aid as some examination at our level may be useful to further judicial review.
(1)
As I see it, there are three generally accepted theories of standing which guide the courts in ascertaining whether a plaintiff i.s the appropriate “party seeking to get his complaint before a federal court.” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). The first emerges from those cases involving a statutorily defined basis for standing. See, e. g., Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940). The second evolves from those cases where the plaintiff holds a public license, grant, or recognized property interest which supports his assertion of litigable rights. See, e. g., Frost v. Corporation Com’n., 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929); Whitney National Bank v. Bank of New Orleans & Trust Co., 116 U.S. App.D.C. 285, 323 F.2d 290 (1963), rev’d on other grounds, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). A third theory of standing centers around a finding of intended “statutory protection” which has been bestowed upon the plaintiff thereby entitling him to sue in order to preserve the interests which the statutory scheme has found to be worthy of protection. This third concept of standing supported the development of a less easily identifiable strain of decisions focusing on a theory of “unlawful competition.”
The “unlawful competition” theory as a basis for standing would seem to have two distinct definitional interpretations: (1) “to compete in any manner, whether legal or illegal techniques are utilized, is ‘unlawful competition’”; (2) “to engage in non-prohibited competition by utilizing techniques or engaging in activities which are in themself illegal is ‘unlawful competition’ ”. Under the former interpretation, either no one may enter the competition in a given kind or area of endeavor or the particular party seeking to enter the competition has been prohibited from doing so in order to protect those parties already pursuing the activity under some grant, franchise or license. Under the latter interpretation, competition per se is not proscribed but the very conduct which constitutes the competition is in itself illegal. In my view, the first interpretation is a valid one which necessarily emerges from the recognized desire to “protect” extant interests and can properly form the basis for a claim of standing. The second finds no support in a close analysis of the myriad cases reviewing the prerequisites to standing, is a misinterpretation of the conceptual genesis of the theory of unlawful competition, and cannot support a claim of standing.
An illustration of this can be seen in the distinction drawn in the recent Hardin v. Kentucky Utilities Co., 390 U.S. 1, 5-6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1968) ease. There, the Supreme Court explained that:
[T]he economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations (emphasis added).
The reasonable corollary of this proposition would be that a party could question the legality of its competitor’s operations if, independently, it could demonstrate that the competition per se was “unlawful.” In its subsequent analysis,1 the *103Court made clear that by utilizing the term “unlawful competition” it meant to preserve the operative distinction between an evaluation of the lawfulness of the competition itself and an evaluation of the legality of the particular conduct which produces the competition.2
To resolve the standing question the Court did not find it necessary to inquire into the legality or illegality of the implementing operations which the Tennessee Valley Authority was to utilize to enter the market for selling electricity in the areas in question.3 All that was necessary was a finding that “one of the primary purposes of the area limitations in § 15d of the [Tennessee Valley Authority Act of 1933 as amended] was to protect private utilities from TVA competition.” Id. at 6, 88 S.Ct., at 655. An area limitation, of course, lends itself to ready interpretation, hence competition per se by TVA would be “unlawful” if TVA had in fact encroached upon the market area which had been reserved for the local utility companies and from which TVA’s entry had been prohibited. Because Kentucky Utilities Co. was a member of the class so meant to be protected, it had standing to litigate to obtain an adjudication of its substantive rights under the protective statutory scheme, and “no explicit statutory provision [was] necessary to confer standing.” Id. at 7 (footnote omitted).
The rationale underlying this finding of standing is that Congress affirmatively intended Kentucky Utilities to be protected from TVA competition. In essence, it was a clearly identifiable beneficiary of a statutory grant of protection, and as such, it was entitled to sue to protect the rights conferred. Whether TVA’s operations which led to the competition were in themselves legal or illegal was irrelevant to the determination of Kentucky Utilities’ standing.
In addition to these three categories of standing cases, some hybrid variations— some of which are valid, others not — have emerged. They include: (1) the Flast v. Cohen, supra, provision for taxpayer challenges of federal expenditures allegedly in violation of specific constitutional limitations; (2) the unique application of the “consumer aggrievement” concept articulated in Office of Communication of United Church of Christ v. FCC, 123 U.S. *104App.D.C. 328, 359 F.2d 994 (1966), pursuant to the “person aggrieved” provision of the Federal Communications Act, 47 U.S.C. 309(d) (1964); (3) the discretionary standing theory broached in Curran v. Clifford, (Dec. 27, 1968), opinion vacated, petition for rehearing en banc granted, No. 21,040 (D.C.Cir., April 3. 1969); (4) the concept that “ag-grievement in fact” is sufficient to give a party standing to challenge agency action under § 10 of the Administrative Procedure Act; (5) the improper utilization of the “unlawful competition” theory discussed supra and employed by some courts which have granted standing in cases involving recent promulgations by the Comptroller of the Currency.4
(2)
Against this background we should examine Appellees’ claim of standing in the present litigation. As set forth in the preceding opinion, Appellee-Institute is a national association representing 177 open-end management investment companies commonly designated as “mutual funds” and the 88 investment advisers and 78 principal underwriters of these funds. The mutual fund members of the Institute represent 94 percent of all such companies in the United States. The Institute membership also includes several investment advisers and principal underwriters of individual mutual funds which are individual Appellees in this suit.
The major basis for Appellees’ claim of standing to challenge the Comptroller’s regulations is that the entry of the national banks into the so-called “mutual fund industry” would constitute “unlawful competition” which Appellees as representatives of the industry may challenge.5 However, an analysis of the facts of this controversy illustrates Appellees’ reliance on an incorrect interpretation of the concept of “unlawful competition.” To perceive the faulty basis of the claims of Appellees, their precise contentions must be studied.
Appellees are complaining of unauthorized administrative action creating a form of competition specifically prohibited by Congress in the Gla^s-Stea-gall Act. The challenged regulations authorize banks to engage in unlawful competition, permitting them to enter the mutual fund business and engage in issuirig, selling, distributing and underwriting securities in violation of Sections 16, 20, 21 and 32 of the Glass-Stéagall Act. Appellees are not merely challenging a program of governmental assistance, financial or otherwise, to lawful competitors whose competitive activities have been specifically authorized by Congress.
Brief for Appellees 66 (emphasis added).
Appellees then go on with sweeping contentions “that competitors have the right to challenge new competition, authorized *105by administrative action, which has been prohibited by statute.”
Furthermore, there is no justification for the gloss which Appellants attempt to put on Hardin requiring a specific and express Congressional intent to protect particular plaintiffs in order to confer standing on them, to challenge regulations which create unlawful competition. The well-established rule, in this Court, the Supreme Court, and other courts, is directly to the contrary. Where the effect of the statutory prohibition is to bar competition, those subject to such illegal competition created by administrative regulation have the standing to challenge the regulation.
Brief for Appellees 66, 67, 73 (emphasis added).
Appellees have thus sought to shift the focus to the activity of the Bank and its alleged violation of the strictures of the Glass-Steagall Act; their burden is to establish their own status as intended statutory beneficiaries of a freedom from competition by national banks.
In a recent decision denying standing in a suit brought by the Association of Data Processing Service Organizations and Data Systems, Inc.6 challenging allegedly improper national bank entrance into the data processing business, the Eighth Circuit made some cogent observations :
Much of the confusion on standing seems to arise from the emphasis upon the issues to be adjudicated or upon the possible merits of the substantive claim rather than upon an examination of the status of the complaining plaintiff. Whether or not a defendant is alleged to be engaged in illegal competition cannot by itself determine a plaintiff’s standing to complain * * * The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.
******
[I]t seems clear that an allegation of “illegal competition” is not the balancing determinant of a plaintiff’s standing. The primary search must rest on whether the plaintiff’s status is one which enjoys a private interest entitled to protection or is one which the law recognizes to be of such legal significance to allow a party to act as a public representative for a public interest.
Association of Data Processing Service Organizations, Inc. v. Camp, 406 F.2d 837 (8th Cir., Feb. 6, 1969) (citations omitted) (emphasis added).
That Court found that the plaintiffs were “competing in a non-regulatory field of free competition,” they were not members of any class “designedly protected by statute,” and they possessed no legal interest “recognized at law.” Id. at 843. Accordingly, they had no standing to challenge the new rulings by the Comptroller which allowed the bank to offer these new services.
As previously indicated, the Glass-Steagall Act does not contain the familiar provisions which constitute an aid to standing in terms of allowing a “person aggrieved” to challenge administrative decisions or promulgations made pursuant to the Act. Nor can Appellees validly assert any “license, grant, or recognized property interest” entitling them to standing. It is equally clear that giving even the broadest reading of the legislative history embellishing the Act will not support the conclusion that Congress meant to bestow upon Appellees any protection from competitive injury.7 With *106these bases of standing foreclosed, Ap-pellees necessarily turn to the inaccurate definition of “unlawful competition” which I find to be without support in an analysis of the “competition” cases.
For the most part the cases relied on by Appellees are readily distinguishable. In American Trucking Ass’n v. United States, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed. 2d 1527 (1960), the Court found a statutory purpose to protect “all modes of transportation” and the complaining party had the benefit of a specific “party in interest” aid to standing. Interstate Commerce Act, 49 U.S.C. § 305(g). Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958), involved a plaintiff which held a license, thereby entitling it to oppose another carrier’s operation without obtaining a license. In Frost, supra, the Court found that a cotton gin licensee had a “property right” and could challenge the invasion of this right by another without a valid license. In Whitney Nat’l. Bank, supra, the Court allowed a state bank to challenge the Comptroller’s authorization of new branch banks from national bank competition. The Georgia Insurance Ass’n. case, supra, involved a provision of the National Bank Act which evidenced an affirmative legislative intent to protect local insurance agents from the competition of national banks.
Some of the language in Port of New York Authority, supra, is more troublesome. There, a group of investment bankers challenged the Comptroller’s authority under Glass-Steagall to permit national banks to distribute revenue bonds not backed by the taxing power of the public body issuing the bonds. In acknowledging standing for the investment bankers to pursue their challenge, the District Court explained:
While no one may maintain a suit to restrain lawful competition merely because he is suffering an economic detriment, nevertheless, a person has a standing to complain against illegal competition, or specifically, against competition on the part of a person who lacks the legal right or power to pursue the competitive activities. In this respect this action is precisely parallel to cases in which a State bank has been permitted to maintain suit to restrain the Comptroller of the Currency from granting permission to a national bank to establish a branch that would compete with the plaintiff.
Id. 261 F.Supp. at 248, (emphasis added).
It seems to me that the District Court gave undue weight to the claim of unlawful competition and in effect equated it with competition created by illegal activities. This made it possible to rely on the “branch banking cases” which are not really applicable, since those cases turn on the provisions of the National Bank Act which limit branch banking of national banks specifically in order to protect state banks from the unrestricted competition of national banks. See, Pennsylvania R.R. Co. v. Dillon, 118 U.S. App.D.C. 257, 335 F.2d 292, cert. denied sub nom., American Hawaiian S.S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964); Whitney National Bank v. Bank of New Orleans & Trust Co., 116 U.S.App.D.C. 285, 323 F.2d 290 (1963), rev’d on other grounds, 379 *107U.S.. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965).8
Appellees here pursue their associational livelihood in a securities marketing industry which thrives on competition in the quest for the investment dollar. The entry of the national bank commingled investment accounts into this competition admittedly adds a whole new category of competitors but it is fundamentally not different from the situation which arises, for example, when “gas stations” sell candy bars, soft drinks and other staples for which travellers have need. Nevertheless, before Appellees may sue to prevent bank competition which affects their private financial interests, they must establish that the Glass-Steagall Act contemplated that they were to be protected from this competition in their pursuits. Even assuming that the competing activity of the Appellant Bank may be otherwise violative of a provision of the Act, I can find no indication that the Act intended to afford protection to securities dealers generally. My position therefore is one of reservation amounting to virtual disbelief in any standing in Appellees.
(3)
Persuasive arguments can be advanced that the pressure for someone with standing to challenge conduct in matters of large public interest is so great that irreconcilable abstractions and distortions have emerged to satisfy what are thought to be the needs. Quite often courts pursued a “bootstrap” or circular logic by initially analyzing the merits, in order that a finding of standing to challenge actions seems more palatable because the court has already found a possible encroachment of “rights” which it desires to review. To evaluate standing solely or even primarily on such visceral reactions does violence to the judicially created concepts of standing:
The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.
Flast, supra, 392 U.S., at 99, 88 S.Ct., at 1952 (emphasis added).9
Evaluating Appellees’ qualifications as prospective litigants on behalf of their own private economic interests and the public’s interests, it becomes evident that they are indeed adverse both as respects their actual prosecution of this litigation and in regard to their fundamental challenge to the Comptroller’s authority to allow the national banks to engage in this type of securities activity. Their financial interest in these proceedings has been examined in the preceding opinion, and when this is coupled with authoritative prognostications of impending financial harm to their interests if the Comptroller’s regulations are allowed to stand,10 it is obvious that there exists one *108cogent qualification of a challenger in the reasonable probability of factual ag-grievement sufficient to insure the spirited adverseness necessary to judicial resolutions.
With this element satisfied, on this record the alternative to a grant of Ap-pellees’ claim to standing would be to effectively frustrate any challenge to the regulations in question.
(4)
Because of the factors discussed heretofore I am unable to set aside my grave doubts as to Appellees’ standing to institute and maintain these .suits. However, in the uncertain state of the law as to standing, there is something to be said on both sides of that question. I therefore resolve my doubts in favor of the Appellees and concur in the result of that portion of the foregoing opinion which holds that the Appellees have standing. I am influenced substantially, as I indicated at the outset, by the need for judicial examination of the important questions raised.
The record before us reflects that the Federal Reserve Board and other government agencies involved gave careful and comprehensive study to all aspects of this problem before taking the actions challenged by the mutual fund industry. Our review function is narrow and limited; it does not include the power to decide whether the public will be better served by one or the other modes of investing funds so as to achieve diversification, yield, safety or low cost. All that is the primary responsibility of the special regulatory bodies established by Congress for that purpose. On the face of the record there is, of course, nothing very startling about the decisions of the Comptroller, the Commission or of the Federal Reserve Board. In one form or another banks have been holding, managing and investing funds for customers for a long time. Indeed, when one considers the historical background it could be reasonably argued by banks that “investment trusts” and more recently “mutual funds” have invaded their domain. However, such arguments are of a kind which are for the regulatory agencies.
Here the Comptroller of the Currency, after study, has decided that the commingled managing agency account is a function which is authorized by law for banks and is in the public interest; the Securities and Exchange Commission and the Federal Reserve Board have approved. Other state and federal regulatory bodies are in accord. The regulatory bodies charged by Congress with these large responsibilities have construed the grant of power and with their accumulated expert experience have decided these issues. Their decisions are entitled to substantial deference and on this record I see no basis for disturbing their conclusions.
. In the language following the above-quoted statement, the Court continued: But competitive injury provided no basis for standing in the above-eases simply because the statutory and consti*103tutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule at least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision.
390 U.S. at 6, 88 S.Ct., at 654.
. This court recently recognized this distinction in Pennsylvania R. R. Co. v. Dillon, 118 U.S.App.D.C. 257, 259-260, 335 F.2d 292, 294-295, cert. denied sub nom., American Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964);
“Legal wrong,” as we have only recently noted, is the invasion of a legally protected right. See Gonzalez v. Freeman, supra, 118 U.S.App.D.C. 180 at 186 n. 6, 334 F.2d 570 at 576 n. 6. Thus, in order to make out a claim of “legal wrong” under Administrative Procedure Act § 10(a), appellants must assert some legally protected right to be free of the competition * * *. This court has very recently spoken on this aspect of standing. When “Congress has not given them any such standing by express or implied provision of statute * * *, mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action, [citations omitted] For purposes of standing in this case, the sufficiency of appellants’ allegations of “legal wrong” thus depend upon congressional intent to bestow upon them a legal right to protection from such competition.
. Significantly, the Court finally concluded that TVA “could * ♦ * properly make its low-cost power available to consumers in this * * * area * * 390 U.S. at 5, 88 S.Ct. at 654. Therefore, the Court’s resolution of the standing issue can not be evaluated as a rationalization prompted by its determination that Kentucky Utilities Co.’s substantive rights had been violated.
. For an extensive collection of the recent cases involving “unlawful competition” as a theory for challenging activity authorized by the Comptroller see Saxon v. Georgia Assoc. of Independent Ins. Agents, Inc., 399 F.2d 1010, 1017 n. 6 (5th Cir. 1968). See also Judge Bazelon’s opinion at pp. 98-101.
. Appellees also assert that § 702(a) (Supp. II, 1967), embodies an independent and self-sufficient statutory basis for standing. I do not feel that the APA was meant to arrest the development of the law of standing as of the date of its passage:
[W]e would certainly be prepared to hold in an appropriate case that one who complains of administrative action may find a remedy nnder the Act beyond the strict scope of judicial review recognized prior to its adoption * * *.
Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 282, 225 F.2d 924, 933, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955). Nevertheless, although the review provisions of the APA were not meant to retard the judicial development and adaptation of the law of standing, it does not establish an independent right to review absent judicially articulated notions of “legal wrong” of “adversely affected or aggrieved * * * within the meaning of any relevant statute.” See Pennsylvania R. R. Co. v. Dillon, supra note 2.
. Data Systems, Inc. is a Minnesota corporation engaged in the data processing business. Association of Data Processing Organizations is an incorporated association domiciled in Pennsylvania whose members perform data processing services throughout the United States.
. See Judge Bazelon’s opinion at p. 96. The thrust of the legislation, and the concern of the drafters, was to protect the banking public through the maintenance of a sound national banking system. Senator Bulkley, one of the managers of the bill, made it explicit in his remarks *106that the bill was not focused on protecting the investing public, much less the securities industry:
[T]he purpose of this bill does not extend to safeguarding purchasers of securities as such. The purpose of this bill is to improve the operation of the Federal reserve system and the banks which are members of it. The object of the inhibitions which I am discussing here is not primarily to protect the investing public, although that is a worthy purpose, but our field is to protect the operations of the banking system itself, and to protect the depositors and customers of the banks so that they shall have the service from national and State member banks which they are entitled to expect.
75 Cong. Rec. 9913-14 (1932). See also Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 266 (1961).
. In Pennsylvania R. R. Co. v. Dillon, we specifically noted this critical distinction:
Appellants’ reliance on Whitney [citation omitted] is also misplaced. There, this court held that certain state banks had standing to attempt to enjoin the Comptroller of the Currency from issuing to a national bank a Certificate of Authority allegedly in violation of federal banking statutes. The court found that federal statutes had guaranteed that state banks would be free of certain competition from national banks.
118 U.S.App.D.C. at 262 n. 6, 335 F.2d at 297 n. 6.
. The Flast Court spoke in terms of the “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” However, I suggest that the thrust of the “constitutional” reference was in relation to the ability to challenge the particular action — federal expenditures in sensitive constitutional areas — there involved and was not intended to retard the flexibility of sound concepts of standing when the plaintiff’s assertions focus on non-constitutional violations in areas of administrative activity.
. Indeed, the Comptroller himself predicted that in the next decade commercial banks operating under these regulations “might capture as much as two billion dollars of mutual fund business.” Hearings on H.R. 8499, 9410 before the Commerce and Finance Subcommittee of the House Committee on Interstate and Foreign Commerce, 88 Cong.2d Sess. p. 26 (1964).