(dissenting sur the denial of the petition for rehearing en banc):
In my view, this case raises two distinct legal problems: (1) whether the plaintiff has standing in the Article III sense; and (2) whether he has a substantive legal claim cognizable in a federal court. By combining the discussion of these two questions under the general heading “standing,” the panel’s opinion may well have obscured the significance of the second issue.
Under the title “standing,” the panel first concludes that the plaintiff has suffered injury in fact.1 The panel then proceeds, under the same heading, to consider whether the plaintiff is protected by (falls within the “zone of interest” of) the statute in question.2 Noting that the statute “does not permit the acceptance of a bid2a not conforming to the invitation to bids,” the opinion concludes regarding the “zone of interest” issue:
“Patently the statute protects not only the Government’s interest in securing advantageous contracts, but also the interests of those responding to the Government’s invitation to do business with it. Merriam, as a bidder, is within the zone of interest protected by the applicable procurement statute.” (footnotes and citations omitted).
I am not convinced that the plaintiff has satisfactorily demonstrated that he or any interest or legal right of his was intended by Congress to be protected by the statute in question. At the same time, a careful review of the relevant case law has persuaded me that the panel’s analysis of the important issues presented in this appeal may lead to uncertainty in an area of the law already too well known for its lack of guidance.
For these reasons, and because of the effect the improper resolution of this second issue may be thought to have upon the role of federal courts in our system of government, I respectfully dissent from the Court’s decision not to reconsider en banc this important aspect of the present appeal.
In view of the vast literature on the standing doctrine,3 it would serve little *1246purpose to repeat what others have already said, except to point out that the standing inquiry focuses upon whether the particular plaintiff “has a sufficient personal interest in getting the relief he seeks. . . . ”4 Putting that question to one side,5 I am troubled by the panel’s approach to determining whether Congress has revealed any interest in protecting a party such as this plaintiff.
When Congress has not explicitly provided in a given legislative enactment for judicial review of agency action either generally or at the behest of a particular class of litigants (i. e., private individuals), the question may arise whether one seeking to challenge the validity of an agency’s action may do so in the courts despite the legislative silence.6 Although this problem may not logically appear to raise a typical standing issue,7 *1247courts have often sought to resolve it, under the standing rubric, by inquiring whether the plaintiff has a “legally protected interest” or “legal right.”8
For example, in Tennessee Electric Power Company v. TVA9 nineteen power companies attempted to attack the constitutional validity of the Tennessee Valley Authority. Despite the financial harm the plaintiffs had suffered, the Supreme Court concluded that they had no right derived from either common law or statute to be free from competition. To bring such a suit, the “right invaded [must be] a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.”10 As Justice Frankfurter later explained the doctrine in a different case:
“A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts ... Or standing may be based on an interest created by the Constitution or a statute. . . . But if no comparable common law right exists and no such constitutional or statutory interest has been created, relief is not available judicially.”11
Within two years of the Termes see Electric Power decision, the Supreme Court journeyed into the area of determining what a plaintiff must show in order to satisfy the “legally protected interest” test. In FCC v. Sanders Brothers Radio Station,12 an owner of a radio station sought judicial review of the grant of an operating license to an applicant. The Court held that the section of the Federal Communications Act permitting an appeal by any “person aggrieved or whose interests are adversely affected by any decision of the Commission”13 provided standing for the plaintiff to challenge the grant of the license to its competitor. The Supreme Court did so, however, only (a) after examining the relevant legislative history14 and (b) in view of the express provision in the statute for judicial review.
In 1968, the Supreme Court examined standing to challenge agency action in Hardin v. Kentucky Utilities Company.15 In that case, a private power company sought review of the TVA’s expansion of services into the complainant’s market area by alleging that such expansion violated a statute.16 Although the Tennessee Valley Authority Act contains no express provision for judicial review, the Supreme Court inspected the legislative history in order to determine whether the plaintiff could rely upon implied protection from the regulatory statute.17 Inferring from the legislative history that the “primary purpose” of the stat*1248ute was to benefit the plaintiff’s interest, the Court held that such implicit congressional intent justified judicial review.
The Supreme Court has even more recently probed the requisites for judicial review of agency action. In Association of Data Processing Service Organizations v. Camp,18 the Comptroller of the Currency issued a ruling permitting national banks to provide data-processing service to their customers. An association of companies offering computer services throughout the country filed suit challenging the ruling on the ground that the National Banking Act gives national banks only such “incidental powers as shall be necessary to carry on the business of banking. . . . ”19
Examining the standing issue in two parts, the Supreme Court first concluded that the petitioners had suffered “injury in fact.”20 In the second part of its standing analysis, the Court proceeded to determine “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question.”21 Quoting from a First Circuit opinion22 that discussed the legislative history and purpose of § 4 of the Bank Service Corporation Act of 1962, prohibiting bank service corporations from engaging “in any activity other than the performance of bank services for banks,”23 the Supreme Court held that “§ 4 arguably brings a competitor within the zone of interests protected by it.”24
The critical issue here is essentially the same as the question presented in the cases discussed above: whether Congress, in enacting the statute or statutes involved, intended them to protect the interest asserted by the particular litigant in each case.25 Placed in the factual setting of this appeal, that question becomes whether Congress intended to provide one seeking a government contract with judicial recourse when an alleged violation of that asserted interest by a federal administrative agency is set forth in a claim for judicial relief.
In grappling with this problem, it is not sufficient to hold merely that the plaintiff has standing to sue, since that holding may, in effect, say only that he has been injured in fact by the agency action of which he complains.26 Rather, *1249the Court must at some point, if the result reached is to conform to the tests fashioned by the Supreme Court, also hold that the plaintiff is protected by the statute in question, as illuminated by its legislative history, and that the statute permits him to seek judicial relief. Put simply, it is not enough for a plaintiff to come to a federal court and claim that he has been injured by action taken by a federal agency. Instead, he must also demonstrate that he has a cause of action to redress such injury — that he has a right, enforceable in the federal courts, not to be harmed by the agency’s allegedly unlawful action.
As quoted above, supra, the panel states, and indeed holds, that Congress did intend for a private party, allegedly aggrieved by the action of the GSA, to be heard by a federal district court. What concerns me about such conclusion is that it is little more than just that — a conclusion not shown to be based, at least so far as the opinion reveals, upon the underlying purposes or legislative history of the statute.27 In order to draw the inference that Congress intended for this kind of case to be heard by a federal court, I believe something more must be developed than the mere fact that the statute prohibits what the agency has allegedly done. What the panel has said still does not adequately answer the question whether Congress intended to protect those, who like the plaintiff, are disappointed in not receiving a government contract, and to provide them with a private right of action in the district court.
•To shirk the process of ascertaining legislative intent when a statute is silent, or at most ambiguous, under the empire of a belief that the result sought is beneficent, may prove unfruitful in the fullness of time.
In addition, I believe it appropriate to note that footnote 7 of the panel’s opinion creates, at least for me, considerable conceptual misgivings. As developed above, in my view the plaintiff can properly sue, in the circumstances of this case, only if he can show that he has a cause of action under the statute in question. Suggesting that the Court might hold that, even assuming he is not within the 2;one of interest Congress intended to protect, he will be permitted to sue in any event seems to indicate that the Court is no longer following the standards laid down by the Supreme Court.28 This step — constituting a considerable modification of the standards established by the Supreme Court — should be taken, if at all, only by the Court en banc.
While I agree that “[i]n Hohfeldian sense a legal right can have its origin elsewhere than in a statute,”29 I per*1250eeive nothing in this case from which such a right might arise. True, as that footnote indicates, the government, if it receives a bid, does have the power to bind the bidder to a contract. Under Professor Hohfeld’s analysis, however, a duty is correlative to a right not to a power. Imposing upon the government a duty of fair dealing must, then, have been suggested by the panel as a matter of policy. While such a policy may well be wise, it is not, in my view, one which a federal court should impose sua sponte, at least without guidance from Congress, and certainly not one for us to erect simply in order to provide disappointed contractors with a federal cause of action.
During the last few years the federal courts have experienced an extraordinary increase in volume far more than what ought to have been expected from population growth alone.30 As Chief Judge Friendly has recently indicated in his excellent treatise on federal jurisdiction,31 it may be that, if federal courts are to handle best the tasks most appropriately given them, a solution must be sought not by creating more judge-ships, but by slowing up judicial intake and certainly not by staking out additional areas of jurisdiction without very careful consideration. Apropos the present ease, Chief Judge Friendly has said: “One need only consider the explosion of litigation under the SEC’s Rule 10b-5, the proxy rules, and the new sections dealing with tender offers ... to realize the impact that any such regulatory law can have once a right of private action is implied.”32
Jurisdictional questions, like the one posed in this case, treated in isolation from the judicial system to which they relate, become, perhaps, sterile formalisms. But such underlying questions are matters of substance in the working of our federal system and in the effective conduct of the business of the courts.33
I am apprehensive that the effect of the panel’s opinion may well be to deluge the federal courts with a host of grievances by disappointed contractors and perhaps by myriad other litigants allegedly injured by agency action they claim is in violation of some statute or rule. The Court should not lightly ascribe to Congress the intention to open new vistas of judicial review. And this, in my judgment, is precisely what the Court has done in this case.
For the above reasons, I dissent from the Court’s decision not to reconsider this case en banc.
. Slip op. at 1239-1241.
. Id. at 1241.
. This dissenting opinion does not deal with the important issue whether the GSA employed a procedure involving bidding as distinguished from negotiation.
. See, e. g., Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv.L.Rev. 645 (1973); Jaffe, Standing *1246Again, 84 Harv.L.Rev. 633 (1971); Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450 (1970); Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601 (1968); Jaffe, The Citizen as Litigant in Public Actions; The Non-Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968).
. H. Hart & H. Weehsler, The Federal Courts and The Federal System 174 (1953); see Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968): “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.”
. I am not inclined to dissent from the Court’s decision not to reconsider whether the plaintiff has standing in an Article III sense. In addition, because I dissent here only from the decision of this Court denying the petition for rehearing en banc, I express at this time no views upon the merits of this case as a whole or upon the panel’s ultimate resolution of the issue which this dissenting opinion addresses. This dissenting opinion deals only with the approach to the overall “standing question” which the panel has taken.
. See Jaffe, Standing Again, 84 Harv.L. Rev. 633 (1971). Thus, a distinction must be made between those cases in which judicial review is sought of an act of a governmental agency which Congress has expressly made subject to review in the courts (statutory review) and those cases in which review is sought by means of a general jurisdictional grant (non-statutory review). See Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645, 647-648 (1973); compare, e. g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940) (statutory review) with, e. g., Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (non-statutory review). For examples of statutes expressly subjecting agency action to judicial review, see e. g., Federal Trade Commission Act, 15 U.S.C. § 45(c) (1970); Federal Power Act, 16 U.S.C. § 8251(b) (1970); Federal Aviation Act, 49 U.S.C. § 1486(a) (1970) ; Interstate Commerce Act, 49 U.S.C. § 1 (1970); National Labor Relations Act, 29 U.S.C. § 160(f) (1970); Securities Act of 1933, 15 U.S.C. § 77i(a) (1970); Investment Company Act of 1940, 15 U.S.C. § 80a-42(a) (1970); Federal Communications Act, 47 U.S.C. § 402(b) (6) (1970). The statutory and non-statutory review situations must be separately analyzed because in the former Congress has expressed a policy that at least under some circumstances the agency’s action shall be subject to judicial review, while in the latter a court does not have even that much guidance. In the present case, no relevant statute expressly provides for judicial review, and thus the plaintiff has sued under 28 U.S.C. § 1331 (federal question jurisdiction).
. Courts frequently treat a host of different kinds of problems as raising standing issues. Familiar are cases involving (1) whether the plaintiff has in fact suffered injury, see Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); (2) whether a plaintiff may properly sue on the basis of another person’s rights, see NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 2 L.Ed. 2d 1488 (1958); Barrows v. Jackson, 346 U.S. 249, 255-259, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). The present case, on the other hand, concerns, apart from the Article III “injury in fact” issue, whether the plaintiff can establish the existence of a legal right which the GSA has allegedly violated. If he cannot so demonstrate, dismissal for failure to state a claim or cause of action is a more appropriate judicial response, in my view, than dismissal for lack of standing. The Supreme Court, however, has treated the problem as one of “standing,” and, therefore, through*1247out this opinion, I shall analyze it in the same terms. See, e. g., Investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed. 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Perkins v. Lukens Steel, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940).
. See Perkins v. Lukens Steel, 310 U.S. 113, 125, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938) .
. 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939) .
. Id. at 137-138, 59 S.Ct. at 369.
. Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 152-153, 71 S.Ct. 624, 638, 95 L.Ed. 817 (Frankfurter, J., concurring).
. 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940).
. 47 U.S.C. § 402(b) (1964). It should be noted that in view of this provision Sanders should be analyzed as a statutory review case. See note 6, supra.
. 309 U.S. at 476-477, 60 S.Ct. 693.
. 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968).
. Tennessee Valley Authority Act of 1933 § 15d(a), 16 U.S.C. § 831n-4(a) (1964); see U.S. at 3 n. 1.
. 390 U.S. at 6-7, 88 S.Ct. 651.
. 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 2d 184 (1970). For additional recent cases on the subject, see Investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970) (per curiam); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L. Ed.2d 947 (1968).
. 12 U.S.C. § 24 (seventh) (1970).
. 397 U.S. at 152, 90 S.Ct. 827.
. Id. at 153, 90 S.Ct. at 830.
. Id. at 155, 90 S.Ct. 827, quoting Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1153 (1st Cir. 1969).
. 12 U.S.C. § 1864 (1970).
. 397 U.S. at 156, 90 S.Ct. at 831. The Court went on to discuss “whether judicial review of the Comptroller’s action has been precluded,” id. and held that it had not. Id. at 157, 90 S.Ct. 827. Justice Brennan disagreed with the Data Processing majority’s approach to the standing question, arguing that a plaintiff has standing if he has suffered “injury in fact,” the Article III test. See Barlow v. Collins, 397 U.S. 159, 168, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting). He would treat the reviewability of agency action question as a totally separate inquiry. Id. at 173, 90 S.Ct. 832.
. Compare Investment Co. Institute v. Camp, 401 U.S. 617, 640, 91 S.Ct. 1091, 28 L.Ed.2d 367 (Harlan, J., dissenting); Barlow v. Collins, 397 U.S. 159, 174-175, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting).
. Compare Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (two-pronged standing test) with Barlow v. Collins, 397 U.S. 159, 170-173, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting) (Article III standing test) and Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
. Although the Supreme Court may search for only slight evidence that Congress intended to protect a plaintiff’s interests, it at least looks for some indicia. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 155, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). The Court of Appeals for the District of Columbia Circuit, which permits judicial review for those seeking to do business with the government, has done so only after examining the legislative history and purpose of the relevant statutes involved in each case. See Constructores Civiles de Centroamerica, S. A. v. Hannah, 148 U.S.App.D.C. 159, 459 E.2d 1183 (1972); Ballerina Pen Co. v. Kunzig, 140 U.S.App.D.C. 98, 433 F.2d 1204 (1970), cert. denied, 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971); Scanwell Laboratories v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970).
. Id.; see also Barlow v. Collins, 397 U.S. 159, 174-175, 90 S.Ct. 832, 25 L. Ed.2d 192 (Brennan, X, concurring and dissenting).
. Panel opinion, n. 7. It should be noted that others, discussing the question whether to have standing a plaintiff must have Hohfeldian status, have done so only in the context of examining the minimum Article III standards. See Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968). In a similar vein, Professor Scott has recently urged courts, while expanding “access standing,” not to over-liberalize the standards for “decision standing.” Scott, *1250Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645 (1973).
. H. Friendly, Federal Jurisdiction: A General View 16 (Columbia Univ. Press 1973).
. Id.
. Id. at 110-111.
. After a most exhaustive and scholarly functional treatment of the standing doctrine, Professor Scott concludes that:
“. . .a predictable reaction [to the wholesale opening of federal court doors] will be a much stronger tendency for Congress to enact a variety of preelusion provisions. The ultimate result of this kind of process is to push us to more all-or-nothing choices when it comes to judicial review, and that seems inherently undesirable.'
. . But it would be regrettable if the erosion of access standing were thought to carry with it an automatic expansion of the policymaking role of the courts, for in that event the doors of the courts might come to be closed more often, not by judicial abdication, but by legislative fiat.” Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645, 689-690 (1973).