concurring:
Municipal taxpayer standing appears on its face inconsistent with current principles of constitutional standing. The Supreme Court, however, has found standing for municipal taxpayers (though seemingly not since Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899)), and has more recently endorsed it in dictum, Frothingkam v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923). I do not dissent from my colleagues’ view that it is not for us to overturn the doctrine, see Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 741-42 (7th Cir.1986) (reviewing reasons why a circuit court should follow even heavily battered Supreme Court authority), but write separately to highlight the incongruity between the doctrine and modern standing principles.
Any injury to plaintiffs as taxpayers here is highly fictional. A District of Columbia taxpayer with an income of $1 million a year would have contributed about 27 cents to the challenged expenditures of $7000.1 If our hypothetical Croesus could actually recover these 27 misspent cents, or if the real taxpayers here could recover their (presumably) smaller portions, the injury would amount to “an identifiable trifle,” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973), caused by the allegedly illegal act and redressable by the court. This would satisfy the minimum requirements for constitutional standing. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In the real world of municipal finance, however, taxpayers cannot recover misspent funds; they can allege no more than that correction of the illegality might lead to alternative lawful expenditures redounding to their benefit.
One can imagine a case where a taxpayer could show a “substantial likelihood” that the illegal spending caused him to suffer an identifiable loss, redressable at the *12hands of the courts. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75, 98 S.Ct. 2620, 2631, 57 L.Ed.2d 595 (1978). For example, taxpayers might prove that a municipal council had originally earmarked funds for a civic project of benefit to them, and had then amended the budget to shift the funds to an illegal purpose. But here, as is conventional in municipal taxpayer suits, the taxpayers make no effort to “identify” a trifling loss (it is hard to see how a loss can be an “identifiable” trifle until it is identified), much less to establish any causal link between it and the illegality. Thus municipal taxpayer standing represents an exception to current standing requirements.
Moreover, the evolution of standing doctrine has significantly undermined the original case for municipal taxpayer standing, however strong one may perceive that case. In Frothingham v. Mellon, the Court distinguished the municipal from the federal taxpayer on the ground that whereas the former’s interest in the lawful application of funds was “direct and immediate,” that of the latter “is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” 262 U.S. at 486-87, 43 S.Ct. at 600-01. In practice the Court’s deprecatory observations about federal taxpayer standing seem equally applicable to municipal taxpayer suits that, like the present one, involve large municipalities and modest sums. Perhaps one might defend the rule as a rough and ready line between cases where the taxpayer interest is realistically significant and ones where it is not, as courts cannot readily draw numerical lines. But the current criteria for injury and causation, requiring a showing of a substantial likelihood that the illegal act caused the plaintiff an identifiable loss, now provide a substitute for the rough standard effected by allowing suit by municipal taxpayers (and rejecting suit by federal ones).
In Frothingham the Court also invoked an analogy to corporate shareholders’ derivative actions to support municipal taxpayer standing. See id. at 487, 43 S.Ct. at 601. The analogy is not fully satisfying. A corporate shareholder holds a specific proportional interest in the corporation, usually marketable at a price reflecting the market’s understanding of the firm’s assets and prospects. That price should benefit from the corporation’s recovery (or expected recovery) of funds in the derivative action. A municipal taxpayer, by contrast, has a less direct interest in the municipal treasury, as he depends for benefits on the outcome of the political and administrative process.
As I understand the court’s opinion, we agree that affording state taxpayers standing on so exiguous a basis would at least raise a very serious problem of federalism: it would allow the federal courts to set aside state action despite the absence of a concrete, palpable injury. See Maj. Op at 6, citing Taub v. Kentucky, 842 F.2d 912 (6th Cir.1988) (seeming to reject state taxpayer standing outside of Establishment Clause claims, but accepting municipal taxpayer standing), petition for cert. filed, 57 U.S.L.W. 3007 (U.S. June 23, 1988) (No. 87-2094); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1183 (9th Cir.1984) (Wallace, J., dissenting in part) (views standing for state taxpayers as improper absent proof of logical connection between the alleged illegality and “an increase in [plaintiffs’] own tax liability”). In the case of a taxpayer of any municipality other than the District of Columbia, at least some of the same concern remains. To be sure, states are the entities explicitly protected by federalism. But as municipalities are simply units of government on which states have devolved a portion of their authority, judicial intrusion on municipal officials (without a real injury) seems as troubling as intrusion on state ones. This is especially so if one recognizes federalism itself as manifesting a concern for local decisionmaking. But see Taub v. Kentucky, supra (distinguishing between state and municipal taxpayers); see also Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 *13(1890) (denying municipal corporations the protection of the 11th Amendment).
Here, of course, no constitutional federalism can be relevant (i.e., provide a special necessity for judicial insistence on a real injury), as the Constitution expressly grants Congress plenary legislative power over the District. Art. I, § 8, cl. 17. As the court notes, however, Congress has granted the District considerable authority to govern its own affairs and, in particular, to adjudicate its own legal disputes. See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 552 (1970); District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973), codified as amended at scattered sections of District of Columbia Code (1981). Thus, as the court suggests, Maj.Op. at 6-7, Congress’s authority over the District may justify a relaxation of constitutional standing requirements. But even if this be so, prudential standing limitations may nonetheless come into play. The Supreme Court has observed that in the absence of such limits “the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Congressional action can override prudential limits, see id. at 500-01, 95 S.Ct. at 2205-07, and perhaps if Congress had retained full authority over the District, one might read that retention as confirming the irrelevance of the federalism precepts that seem to require denying standing to state taxpayers who cannot show a direct injury. By the same token, the congressional effort to give the District much of the autonomy of states seems to support a prudential rule under which District taxpayers would have no more standing than municipal taxpayers elsewhere, perhaps no more than state taxpayers.2
In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Supreme Court complicated the situation by relaxing the former absolute barrier to federal taxpayer standing and substituting a test that requires two types of “nexus” between the taxpayers’ injury and the claim asserted. The second of these nexi is a showing “that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the ... taxing and spending power.” Id. at 102-03, 88 S.Ct. at 1953-54. There the plaintiff claimed that certain federal expenditures violated the Establishment Clause, which the Court readily found to be a specific limit of the sort required. History supported this view. The colonists felt an understandable moral outrage that a citizen should be forced to pony up money to subsidize religions that he might abominate. The Court quoted Madison: “[T]he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.” 392 U.S. at 103, 88 S.Ct. at 1954. Madison’s point is in part, of course, a familiar slippery-slope argument; more broadly, it attacks even trivial exactions of this type.
While Flast may simply open a new door for federal taxpayers, an alternative reading is that it makes a more general, conceptual shift in the analysis of taxpayer standing at all levels of government. The municipal/federal line of course can still serve as a rough cut at some quantitative difference for taxpayers; Flast does not directly impinge on its validity as such. On the other hand, Flast tends to move the analysis to the plaintiff’s genuine interest — in Flast itself, the taxpayers’ interest in her funds not being used for the “establishment” of religion. The present plaintiffs cannot assert an equivalent interest: at *14least they have not even suggested that the First Amendment’s free speech clause limits the taxing and spending power as clearly as the Establishment Clause.
The post-Flast cases in the lower federal courts relying on municipal taxpayer standing shed some light on whether such standing serves a useful function. We may put aside cases that can be sustained simply as applications of Flast at the local level, such as Donnelly v. Lynch, 691 F.2d 1029 (1st Cir.1982), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Fausto v. Diamond, 589 F.Supp. 451 (D.R.I.1984); such cases obviously do not depend on a generalized (nexi-free) taxpayer standing.
Apart from them, what is there? In two Establishment Clause cases, the courts found standing for municipal taxpayers challenging municipal dispositions of property rather than “spending.” Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985); Annunziato v. New Haven Bd. of Aldermen, 555 F.Supp. 427 (D. Conn.1982). These cannot be sustained under the Flast doctrine as it has evolved: Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), limited Flast to spending, and refused to apply it to a federal disposition of property pursuant to Congress’s power under the Property Clause of Article IY. While it is far from clear why a taxpayer alleging injury because of his government’s failure to realize full value on disposition of government property should not be as able to complain as a taxpayer alleging injury from the spending of cash, the distinction seems no less applicable to the municipal taxpayer than to the federal one. Under Hawley and Annunziato, however, a municipal government is more exposed to Establishment Clause challenges than the federal government, even though in literal terms the First Amendment applies only to the latter.
Finally, there are four instances where courts have relied on state or municipal taxpayer standing to address alleged inequalities in the distribution of government resources: Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984) (allocation of state resources exclusively for benefit of native Hawaiians); Gwinn Area Community Schools v. Michigan, 741 F.2d 840 (6th Cir.1984) (state education funds allocated to local school districts are decreased where district receives federal impact funds); Ridgefield Women’s Political Caucus v. Fossi, 458 F.Supp. 117 (D.Conn.1978) (town supplied land at nominal fee to Boys’ Club for recreational purposes; court finds that town has thereby discriminated against girls in the provision of recreational opportunities, which discrimination it may cure by equalizing that provision); Northwestern School District v. Pittenger, 397 F.Supp. 975 (W.D.Penn.1975) (state alleged to violate equal protection and due process clauses of 14th Amendment in special allocation of state education funds to districts of low population density). In each of these cases persons who were denied governmental benefits as a result of the discrimination were surely more appropriate plaintiffs than simple taxpayers as such.
In short, the record of the last 20 years suggests that the sole effect of non-federal taxpayer standing in the federal courts has been to allow such taxpayers (1) to present the sort of Establishment Clause claims that Valley Forge denies federal taxpayers, i.e., ones not involving an explicit spending of funds, and (2) to present discrimination claims that could far more plausibly be brought by genuine victims of discrimination. And, of course, in this case, through the operation of pendant jurisdiction, see United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), it gives taxpayers access to a federal court for a claim under District law.
Accordingly it would seem that abolition of municipal taxpayer standing as a special doctrine would eliminate a serious risk of unjustified intrusions on local independence, leaving courts quite able to grant relief for taxpayers who suffer a palpable injury, linked to the alleged illegality by the sort of causal connection normally required for constitutional standing.
*15In our particular case, it would appear that whatever the merits of the claim, the class of persons with the conceptually best standing would be persons who had actively spoken out in support of the initiative that the defendant District government opposed. These could claim that the District’s expenditures (regardless of their source) had harmed them by drowning out their own messages. In fact, however, the individual plaintiffs here claim involvement (outside their taxpayer role) only to the extent of having signed the initiative petition or voted for the initiative. There is no apparent reason to suppose that their primary (non-taxpayer) interest here is any other than Common Cause’s: a generalized interest in a purified voting process. With my colleagues, of course, I do not reach the issue of whether that interest is enough for standing. Because of the Supreme Court’s unabandoned doctrine of municipal taxpayer standing, however, I concur.
. During the relevant period D.C. residents were assessed personal income taxes of $1950 on the first $25,000 of taxable income, plus 11% of the excess, 47 D.C.Code Ann. § 1806.3(a) (1981), resulting in a tax burden of about $109,200 for 858 F.2d — 3 my hypothetical taxpayer. D.C. general expenditures for the year ending June 30, 1985 were $2,835 billion. Statistical Abstract of the United States 277 (1988). $109,200/2,835,000,000 x $7000 = 27 cents.
. Viewing the District as an arm of Congress, one might suppose that separation of powers principles, which underlie the requirement of a real injury where congressional action is attacked, would impose a similar requirement here. But as it is the conduct of locally elected officials that is under attack, it is the quasi-federalism manifest in the congressional grant of District autonomy that requires us to insist on a sufficient injury.