(concurring in the result):
I concur in the affirmance of the summary judgment denying the injunction *137but with respect to the National Defense Reserve Fleet Act I do not agree with the majority opinion that Curran has standing to bring that portion of the action. The majority opinion finds with respect to the Reserve Fleet Act that Curran cannot obtain the injunction he seeks because the matter is committed to agency discretion.1 To say that the matter is discretionary with the agency, in my opinion, is merely a recognition of the fact that the Reserve Fleet Act does not confer any legally protected right on Curran and the persons he sues for. I thus conclude that Curran does not possess the necessary standing to attack the administration of the Reserve Fleet Act.
J. SKELLY WRIGHT, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINSON join, dissenting in part and concurring in part:
I. STANDING
The majority’s careful tracing of recent developments in the law of standing, and its thorough analysis of the Merchant Marine Act of 1936 and the Cargo Preference Law indicate that American seamen have been granted a “legally protected interest” which affords them the standing required to bring this case before our court. However, it seems to me that this court has the power to grant standing to these plaintiffs even in the absence of a finding that Congress intended to create such a “legally protected interest.”
As the majority points out, there can be no doubt that the National Maritime Union of America, representing the interests of its members, is aggrieved in fact by the allegedly unlawful action of the Secretary of Defense. For even though in 1904 United States ships were not required to be manned by United States seamen, as of 1936 to date they are.1 But appellee argues that aggrievement in fact alone is an insufficient predicate for standing to sue.
Some have contended that at least since the passage of the Administrative Procedure Act, which in Section 10 gives a “right of review” to “[any] person suffering legal wrong * * * or adversely affected or aggrieved * * * within the meaning of [any] relevant statute,” 5 U.S.C. § 702 (Supp. IY 1965-1968), aggrievement in fact is all that is required to confer standing to challenge administrative action. The legislative history of the A.P.A., though conflicting, tends to support this interpretation, particularly in the Senate and House Committee Reports, both of which state that “[t]his subsection [Section 10] confers a right of review upon any person adversely affected in fact by agency action or aggrieved within the meaning of any statute.” Senate Doe.No.248, 79th Cong., 2d Sess., 212, 276 (1946). Professor Davis, who espouses this construction,2 cites a number of recent Supreme Court decisions which, though they do not discuss the A.P.A. expressly, seem to find standing simply on the basis that the plaintiff has suffered a “palpable injury.” Bantam Books, Inc. v. Sullivan, *138372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); City of Chicago v. Atchison, Topeka & Santa Fe R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958).3
This court, however, in the major decision discussing the question, has apparently rejected the notion that aggrievement in fact is alone sufficient to confer standing under the A.P.A. or under the common law. Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955). See also Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292 (1964). In Kansas City we followed the Supreme Court’s teaching in Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), a pre-A.P.A. decision, and held that Section 10(b), 5 U.S.C. § 703 (Supp. IV 1965-1968), did not effect fundamental changes in the essentially judicially made pre-A.P.A. law of standing. Unless, therefore, the plaintiff had a “legally enforceable right” or was granted a right to sue under a particular statute, he would not have standing. Aggrievement in fact, while perhaps a necessary condition of standing, was not, we have held, made a self-sufficient one by the A.P.A.
Nevertheless, in Kansas City we were careful to point out that “we would certainly be prepared to hold in an appropriate case that one who complains of administrative action may find remedy under the Act beyond the strict scope of judicial review recognized prior to its adoption * * *.” Though this is not precisely what the majority meant in Kansas City, that case points the way. We should opt for a test of standing, at least in cases challenging administrative action, that would leave it in the discretion of the court to grant or deny standing where the plaintiff can claim no infringement of a legal right, but has in fact suffered or is suffering a palpable, concrete injury. This aggrievement in fact is all that is required to constitute a case or controversy in the constitutional sense.4 Thus where the court has subject matter jurisdiction in such situations, it can hear the case, but need not. On the other hand, where the plaintiff does claim infringement of a legal right or has been granted a statutory right of review, the plaintiff, assuming the threshold injury in fact, has the right to prosecute his case in court, and it is not within the discretion of the court to deny him standing.
This approach secures the court adequate control over its docket without unduly restricting the people’s access to the courts. It provides a mechanism by which the court can weed out those cases which do not bring the issue sharply into focus, and it is sufficiently flexible to expand and contract as our ideas of who should be allowed to challenge different kinds of governmental action evolve and grow. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In ■Flast the Supreme Court emphasized the discretionary character of the standing doctrine and indicated that aggrievement in fact was the sole threshold requirement. There the Court said: *139The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ Baker v. Carr, 369 U.S. 186, 204 [82 S.Ct. 691, 7 L.Ed. 2d 663] (1962). In other words, when standing is placed in issue in a ease, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. * * * A proper party is demanded so that federal courts will not be asked to decide “ill-defined controversies over constitutional issues,’ United Public Workers [of America] v. Mitchell, 330 U.S. 75, 90 [67 S.Ct. 556, 91 L.Ed. 754] (1947), or a ease which is of ‘a hypothetical or abstract character,’ Aetna Life Insurance Co. [of Hartford, Conn.] v. Haworth, 300 U.S. 227, 240 [57 S.Ct. 461, 81 L.Ed. 617] (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Trunk R. Co. v. Wellman, [143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176 (1892)], or those which are feigned or collusive in nature, United States v. Johnson, 319 U.S. 302 [63 S.Ct. 1075, 87 L.Ed. 1413] (1943); Lord v. Veazie, 8 How. 251 [12 L.Ed. 1067] (1850).”
*138“ * * * 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 lie wishes to have adjudicated.
*139392 U.S. at 99-100, 88 S.Ct. at 1952-1953. (Footnotes omitted.)
In Flast the Court granted standing to a taxpayer alleging that certain Government expenditures violated the First Amendment’s Establishment Clause. In so doing, the Court laid down certain restrictions on such suits, and made clear that a taxpayer did not, by virtue of that status alone, always have standing to challenge any federal expenditure. But the Court’s limitations on such suits were all directed at assuring “that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution.”5 392 U.S. at 106, 88 S.Ct. at 1955. Where, as here, there is a palpable injury in fact and the requisite adverseness is assured, the court should, in its discretion, be empowered to grant standing. Applying a test of this sort to the case at hand, I would conclude that the court can, and on the facts of this case should, confer standing as a matter of discretion.
A combination of several reasons should impel us to grant standing to the seamen’s union now. First, given the current legislation requiring that United States bottoms be manned by United States crews, the seamen are suffering a palpable, concrete, definite and particular injury as a result of the Secretary’s allegedly unlawful action. Second, they are perhaps the only party with sufficient interest to challenge the Defense Department’s allegedly unlawful administrative practice and thereby to vindicate the public interest in an adequate war time merchant fleet. For American shipowners, who would superficially appear to have a strong economic interest in the use of American bottoms, also own ships sailing under foreign flags and manned by foreign, low-paid, non-union crews. These owners, therefore, may be *140perfectly satisfied if the Defense Department does not reactivate the reserve fleet or require “flags of convenience” ships under American control to fly their true colors, because to do so would require the use of higher-paid United States seamen when shipping American military supplies.
That the union is quite likely the only party who will challenge the Secretary’s actions weighs heavily toward the grant of standing. This sort of consideration was highly relevant in the landmark decision of F. C. C. v. Sanders Bros. Radio Stations, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869 (1940), where the Supreme Court indicated that one reason for permitting a radio station standing to challenge the Federal Communications Commission’s grant of a license to a competitor was “that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission * We relied heavily on this notion in Office of Communication of United Church of Christ v. F. C. C., 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), where we granted standing to a group of “listeners” to challenge the license renewal of a television station serving their area. See also Scripps Howard Radio v. F. C. C., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); F. C. C. v. N. B. C. (KDA), 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943).
Though these cases all involved challenges by plaintiffs claiming standing under a statute granting a right of review to “persons aggrieved * * * or adversely affected” by agency action, the fact that the plaintiff before the court is likely to be the only one with sufficient interest to challenge the action is relevant also where there is no such statute. For one of the prime functions of the essentially judicially created law of standing is to assure that the plaintiff before the court is one whose interests are such that he is most likely to prosecute his cause vigorously and to bring the controverted issues clearly to the attention of the court. See Flast v. Cohen, supra. This is not to say that the “best” plaintiff is always to be granted standing. In some instances it may be that no one is sufficiently affected by the allegedly unlawful action to give him the right to maintain a lawsuit. Here, however, the seamen suffer a clear, concrete and severe injury of a sort which is not suffered by the population generally. They are doubtless on a footing with the best plaintiffs we will ever have before this court.
II. RESERVE FLEET VESSELS
The majority today holds that the reserve fleet legislation authorizes “a span of [judicially unreviewable] executive actions * * * that are ‘committed to agency discretion’ within the meaning of § 10(a) (2) of the Administrative Procedure Act * * I respectfully dissent.
According to both the Administrative Procedure Act and the “common law of judicial review” on which it was founded, Executive action is subject to judicial review unless “committed to agency discretion by law.” 6 In the frequent cases where statutes by their terms neither make reviewable nor shield from review Executive action, there' exists a presumption of reviewability. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902); 4 K. C. Davis, Administrative Law Treatise § 28.05 (1958); L. Jaffe, Judicial Control of Administrative Action 346 (1965).
*141This “presumption of reviewability” is often regarded as reversed for certain types of Executive actions. Actions relating to the conduct of foreign or military affairs have not normally been reviewed by the courts, absent exceptional circumstances. 4 K. C. Davis, supra, § 28.16; L. Jaffe, supra, 363-369. Thus we would not normally review the failure of the Executive to exercise emergency powers granted it for the purpose of meeting the military needs of the nation.
However, in this case we are not confronted only by a statute granting such permissive emergency powers. We have before us also the 1956 Act, which commands in terms on their face absolute that American military cargo be shipped in American vessels. With this statute, Congress has confined the otherwise wide discretion of the Executive to hire military transport; Congress has made the decision as to the shipment of American military cargo itself.
The majority has already read into the words of the 1956 Act an exception to its command. Foreign ships may transport American military cargo where American ships are not “available.” I agree. But the majority goes on to hold that the Executive has absolute and unreviewable discretion to rule that American ships in the reserve fleet are not “available” within the terms of that exception.
I am not prepared to go so far. I would hold that the policy of the 1956 Act as we have construed it — that American seamen be favored in the shipment of American military cargo — must be taken into account in the exercise of the power to break out the reserve fleet.
The national defense reserve fleet was established by the Merchant Ship Sales Act of 1946, 50 App. U.S.C. §§ 1735-1746 (1964). That Act provided for the sale of part of the large surplus of Government-owned transports and cargo ships built during World War II, and the retention of such other part as deemed necessary for the national security in a reserve fleet. The reserve fleet could be used either when the President had speci-cally authorized requisition of vessels, or when he had proclaimed a general national emergency.
One of the policies declared by the Ship Sales Act is that;
“It is necessary for the national security and development and maintenance of the domestic and the export and import foreign commerce of the United States that the United States have an efficient and adequate American-owned merchant marine * * * (4) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel * * *.”
50 App. U.S.C. § 1735(a). (Emphasis added.) This declaration of policy indicates to me that the Ship Sales Act, including its provisions concerning the reserve fleet, has in common with the 1956 Act and the Merchant Marine Act of 1936 the purpose of favoring American seamen.
Thus the purpose of the statute granting power to break out the reserve fleet is cognate with the “seamen benefit” purpose of the 1956 and 1936 Acts. The ships made available under that power must then be considered in principle as available under the 1956 Act, given the similar policies behind the two provisions.
In holding that the reserve fleet can be available as a matter of law for purposes of the 1956 Act, I would leave the Executive with wide discretion to determine the availability in fact of mothballed ships. Limited review, if indeed review of any kind is to be permitted, is inherent in matters touching national defense. Certainly what we might consider Executive “bad judgment,” as distinguished from arbitrary action, is not a basis for review. A heavy burden must rest on anyone who would impugn the act of the Executive in the national defense area, particularly in time of national emergency. .
Moreover, such a decision would imply no requirement that the entire reserve *142fleet must be activated before a single foreign ship can carry American military cargo. It may be that large numbers of reserve vessels are for one reason or another unsuited to particular transport work. The slowness, cost or inconvenience of breaking out that fleet may be such as to render much of it in practical terms unavailable. I would leave such particular expert judgments to the Executive, subject to review only for abuse of discretion. Such a requirement would not require the Executive to undertake a possibly burdensome, detailed evaluation of the competing interests each time military goods were to be shipped. To avoid the need for making specific findings in particular cases, the Executive could decide to formulate and publish a general policy with respect to the accommodation between the use of the reserve fleet and the 1956 Act.
I would not permit the Executive to ignore the command of Congress that “[o]nly vessels of the United States or belonging to the United States may be used in the transportation by sea of supplies bought for the Army, Navy, Air Force, or Marine Corps.” 10 U.S.C. § 2631 (1964). I would require that the Executive look to the reserve fleet, and have reason for passing over it, before it uses foreign ships to transport American military cargo.
. 5 U.S.C.A. §§ 701(a) (2), 702.
. The statute provides :
“All licensed officers of vessels documented 'under the laws of the United States, as now required by law, shall be citizens of the United States, native-born or completely naturalized; and upon each departure from the United States of a cargo vessel in respect of which a construction or operating subsidy has been granted all of the crew (crew including all employees of the ship) shall be citizens of the United States, native-born or completely naturalized.”
46 U.S.C. § 1132(a) (1964).
. 3 K. C. Davis, Administrative Law Treatise § 22.02 (1958). Professor Davis apparently feels that even before passage of the Administrative Procedure Act aggrievement in fact was sufficient to confer standing under the common law, and that the Supreme Court was simply wrong in Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1937). Id. § 22.04.
. See 3 K. C. Davis, supra Note 2, §§ 22.04, 22.17 (1965 Pocket Part).
. This is not to say that there must be an injury in fact in order that there be a case or controversy in the institutional sense. Congress can authorize suits by “private attorneys general” to vindicate the public interest even where the private party has not suffered any injury different from that suffered by the public generally. See Flast v. Cohen, 392 U.S. 83, 116-133, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (dissenting opinion of Mr. Justice Harlan) ; Jaffe, Standing to Secure Judicial Review : Public Actions, 74 Harv.L.Rev. 1265 (1961). Professor Jaffe would go further and permit “public actions” in some situations even in the absence of specific statutory authorization.
. While the Court in Flast, and in its quotation from Baker, speaks of the illumination of constitutional issues, the question of standing, of course, is not limited to such issues. Whether the challenged governmental action is alleged to be unconstitutional or simply illegal is irrelevant to standing. In fact, if anything, standing should be conferred more readily where ultra vires rather than unconstitutionality is charged since actions charging only the former do not raise as serious separation of powers considerations.
. 5 Ü.S.C. § 701 (Supp. IV 1965-1968). The reach of this statutory exception to the general rule of reviewability is not clear. There is respectable authority supporting the proposition that even those actions which are “committed to agency discretion by law” are reviewable by the courts whenever there has been an abuse of that discretion, gee Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969).