(concurring and dissenting):
I concur in Brother Oakes’ thoughtful opinion holding that the plaintiffs have standing with respect to defendants HUD and BOR. I must add some words of caution, however, to explain my position. I believe that Judge Pollack’s decision was based on a pragmatic view that the case itself, so far as injunctive relief against the grant of federal funds is concerned, may ultimately end in a mere spinning of wheels, for the plaintiffs may not have suffered sufficient “injury in fact” to enjoin the federal grants. While Judge Oakes carefully notes that we are not deciding the merits, I would like to make my own position even clearer.
I would not hold that the plaintiffs necessarily have standing to seek injunctive relief against the Secretary of HUD and his assistants to restrain the grant of federal funds, for that involves the preliminary question of whether a determination of HUD to grant funds to New Castle is subject to judicial review and, if so, at whose instance, a matter we need not decide if we simply reverse the summary judgment. I would hold only that the plaintiffs are “adversely affected or aggrieved by agency action within the meaning of a relevant statute” under the Administrative Procedure Act, 5 U.S.C. § 702, to raise the question of whether the Secretary has failed to make the inquiries implied from his affirmative duty to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subehapter,” Pub.L. 90-284, Title VIII, § 808(e)(5), April 11,1968, 42 U.S.C. § 3608(d)(5), without any consideration of the merits of the lawsuit. See United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
In 1968 Congress passed the “Fair Housing” Act prohibiting discrimination in the sale or rental of housing. Civil Rights Act of April 11,1968, Pub.L. 90-284, Title VIII, § 801, 42 U.S.C. § 3601. It contains the general affirmative duty provision noted. 42 U.S.C. § 3608(d)(5).
The Supreme Court has not yet determined whether the affirmative duty goes beyond enforcement of the sale and rental provisions of the Fair Housing Act. Nor has it decided whether, in the absence of hearing and notice provisions like those contained in the Civil Rights Act of 1964, Congress intended that the federal courts should review HUD’s policies in relation to grants under the Housing and Urban Development Act of 1965, with the power to issue injunctions against federal assistance to non-pinpointed programs which are not, in themselves, discriminatory.
*588I think that, in conformity with our national policy to eliminate the disgrace of racial discrimination, the plaintiffs should be heard to test whether HUD has done its duty in the premises. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), supports this result, as does SCRAP, supra.
Although the question is close, minority people fairly near the geographical area involved may be deemed “aggrieved” by agency inaction, at least in the general way that the environmentalist law students were injured by the inaction of the Interstate Commerce Commission in United States v. SCRAP, supra, or the class of black students in Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159, 1162 (1973). The failure of the Executive Branch to enforce a statutory duty imposed on it may cause injury in fact to the class affected, even though, as Judge Oakes states, “no injury would exist without the statute.” Linda R. S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). That does not mean, to be sure, that they can compel judicial review. In that sense, as Judge Oakes recognizes, standing and judicial review are discrete issues.
In cases raising issues of discrimination, as well as environmental considerations, all that conferring standing under the Administrative Procedure Act does is to let an Article III “case or controversy” be heard with the sharp adversity required. See SCRAP, supra.
The courts must still determine the extent, if any, of permissible federal coercion by the withholding of federal assistance. Cf. Adams v. Richardson, supra. That is why it is proper to allow standing to these plaintiffs so that they may raise, in a judicial context, what the obligations of HUD are and whether HUD has met them. We should be liberal in granting standing where the challenge is to alleged administrative failure to act in the face of an alleged statutory duty, particularly in a civil rights case. As Judge Oakes notes, that is the meaning of United States v. SCRAP, supra. Cf. Shannon v. HUD, 436 F.2d 809 (3 Cir. 1970). In my view, a person may be an “aggrieved person” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 702, to remedy administrative inaction without necessarily having standing for other relief. He may be aggrieved by HUD’s failure to perform its statutory duty of inquiry, which is for his class benefit. He may not have been injured in fact sufficiently to coerce the executive agency to withhold funds.
On the standing to sue Tri-State I respectfully disagree with my brother Oakes. There must be some balancing of interests. To allow every denial of area significance to be reviewed by the courts, particularly at the instance of persons as remote from area considerations as these plaintiffs are, would simply invite a plethora of suits with a grave question of the ultimate judicial competence to solve them. Whether a sewer pipe in a town is a concern of a large area need not be litigated in the context of racial discrimination. It is better to dismiss the complaint against Tri-State now, as Judge Pollack did. In that respect I agree with Judge Moore though for somewhat different reasons.
Lastly, I must disassociate myself from my Brother Moore’s statement that the issue is “the question of the extent to which, at the behest of the plaintiffs, the judicial branch of our constitutional government can override, or veto the exercise of, discretionary judgments made by the executive and legislative branches in connection with grants of federal funds made pursuant to the Community Facilities and Advance Land Acquisition Act, 42 U.S.C § 3102 (1972) and the Outdoor Recreation Programs Act, 16 U.S.C. § 4607 (1963).” When Congress imposed on the Secretary of HUD the affirmative duty to administer all “programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this sub-chapter,” 42 U.S.C. § 3608(d)(5), it did not mean that HUD could disregard that man*589date “in its discretion.” In fact, HUD has adopted procedures to determine local racial policies in the case of the New Castle grant.
The case may well be a close case, but it is not out of the mainstream of court review of agency inaction in the face of a statutory duty. When Congress says federal funds shall not be used if certain conditions exist, the courts are often not without jurisdiction to review. The majority opinion does not mean that New Castle shall not have its sewer. If that should be the end result of the judicial process it will be only because Congress, not the courts, determined the national policy against the particular use of federal funds, which the courts were required to respect.