concurring in denying the petition for review:
This is a case in which standing and merits merge. It is best resolved, I believe, by the simple point my colleagues make “[i]n the first place”: the petitioner has shown no cause “to credit the proposition that an interlocking directorate involving a class II or class III railroad will damage, let alone lead to the ‘financial ruin’ of, a carrier.” Ct.Op. at 914. A case so slim seems to me an inappropriate one in which to rehearse at length, albeit again without resolving for this circuit, the large “question whether we owe any deference to congressional predictions or assessments of cause and effect when we analyze a standing problem.” Id. at 917. I write separately, therefore, to disassociate myself from the courts extended essay.
I.
As the court’s opinion tellingly demonstrates, standing in this case indeed depends totally on the merits of the claim that the challenged exemption will open the way for “the financial wrecking of rail carriers,” and thereby hurt railroad workers. Id. at 913. But cf. Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975) (standing “in no way depends on the merits”). That claim, as the Interstate Commerce Commission cogently explained, is insubstantial. The Commission was mindful of the small market share held by class II and class III railroads. See Ct.Op. at 910 n. 5. It relied on forty years’ experience to conclude that an exemption not expanded to cover interlocks between class I railroads would advance the welfare of the railroad industry consonant with the deregulatory thrust of the Staggers Act. In short, the Commission sensibly exercised the discretion Congress entrusted to it.
A reviewing court, after finding the Commission’s decision entirely reasonable, might say, as my colleagues do, that the injury petitioner asserts is imaginary, so petitioner has no standing. There is respectable authority, however, for preter-mitting the difficult justiciability issue when, as in this case, the questions of standing and merits blend, and the merits are decidedly against the complainant. See, e.g., Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 3039-40, 41 L.Ed.2d 1033 (1974); Chandler v. Judicial Council, 398 U.S. 74, 89, 90 S.Ct. 1648, 1656, 26 L.Ed.2d 100 (1970); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Lorion v. Nuclear Regulatory Comm’n, 785 F.2d 1038, 1041 (D.C.Cir.1986); Na*920tional Wildlife Fed’n v. United States, 626 F.2d 917, 924-26 & n. 16 (D.C.Cir.1980) (McGowan, J.); Adams v. Vance, 570 F.2d 950, 954 n. 7 (D.C.Cir.1977) (per curiam); Chinese Am. Civic Council v. Attorney General, 566 F.2d 321, 325 & n. 9 (D.C.Cir.1977) (MacKinnon, J.); Marker v. Schultz, 485 F.2d 1003, 1004 (D.C.Cir.1973) (Leven-thal, J.). I would follow that path here, in the interest of economy, restraint, and the avoidance of unnecessary constitutional confrontations. Compare Pipon Society, Inc. v. National Republican Party, 525 F.2d 567, 578 (D.C.Cir.1975) (en banc) (McGowan, J.), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 (1976) (“In declining to decide the question of justiciability, we note its close relationship to the question we do decide, that is to say, the merits of the constitutional claim.... We agree that ... we cannot say [that defendants’ conduct] offends the Constitution. What we decline to do, however, is to take the more drastic step of holding that we would never be competent to reach a contrary conclusion.”) (footnote omitted), with id. at 596 (court should not have avoided justiciability issue) (Tamm and Robb, JJ., concurring in the result); id. at 605 (same) (Wilkey and Danaher, JJ., concurring in the result). When standing and merits are resolved by the same inquiry, why not so recognize candidly? In such instances, does the label really matter?
II.
The court suggests, although it ultimately does not hold, that we should treat congressional determinations that bear on standing differently from other legislative policy judgments. I resist the suggestion, and would apply to standing analysis, as to merits matters, the general axiom the legislative judgments on social and economic issues enjoy a strong presumption of constitutionality. When no “fundamental right” or class attracting heightened scrutiny is affected, Supreme Court jurisprudence for a half century or more has cautioned judges to defer to economic and social prescriptions, proscriptions, and predictions by elected representatives, so long as one can posit a rational basis for the legislative determination. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); United States v. Carotene Prod. Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).
My colleagues imply that we should subject legislative judgments relevant to standing to a far more stringent brand of judicial review. They observe that “Congress surely cannot expand the constitutional jurisdiction of the federal courts — in essence, amend the Constitution — merely by legislating.” See Ct.Op. at 915-16. But deference to rational congressional predictions no more charters Congress to amend article III than deference to the legislators’ rational policy judgments allows Congress to amend substantive constitutional constraints on its authority. The courts can and do exercise a check. The issue is whether courts start their inquiry with an initial bias in favor of the disposition of a co-equal branch, or whether they owe “[no] deference to congressional predictions,” Ct.Op. at 917, and therefore must be “convinced” that the legislature’s judgment is not only reasonable, but right. See Ct.Op. at 916 n. 14.
By so brigading article III, effectively exalting it over other constitutional constraints on legislative action, the court is led to posit a broad category of measures that the Constitution permits Congress to place in the charge of administrators, but prohibits judges from monitoring; the court describes these measures as ones that only “approximately or imprecisely ... affect the behavior of men.” Id. at 916 (internal quotation omitted). In this domain, it is apparently the court’s vision that executive officers and commissions reign supreme, unchecked by the safeguard of judicial review.*
*921I agree that courts are not “bound by Congress’ predictions or intentions as to the likely effect of legislation.” Ct.Op. at 916. Congressional economic and social judgments bearing on standing merit not rubber stamps, but respect, to the extent those judgments stand the test of rationality we apply to substantive legislative enactments. See Dellums v. Nuclear Regulatory Comm’n, 863 F.2d 968, 984 (D.C.Cir.1988) (Ruth B. Ginsburg, J., dissenting as to standing). Circuit precedent is largely in accord. See Public Citizen v. F.T.C., 869 F.2d 1541, 1549 & n. 16 (D.C.Cir.1989); Center for Auto Safety v. Thomas, 847 F.2d 843, 855-56 & n. 15 (D.C.Cir.1988) (Wald, C.J.); National Wildlife Fed’n v. Hodel, 839 F.2d 694, 708 (D.C.Cir.1988); Center for Auto Safety v. NHTSA, 793 F.2d 1322, 1334-35 (D.C.Cir.1986); Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C.Cir.1984); International Ladies’ Garment Workers’ Union v. Donovan [ILGWU], 722 F.2d 795, 811-12 (D.C.Cir.1983), cert. denied sub nom. Breen v. ILGWU, 469 U.S. 820, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984); Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1010 (D.C.Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978).
Conclusion
This easy case did not require us to air “a difficult question.” See Ct.Op. at 916. Underscoring that the court eventually reserves decision of the weighty issue to another day and more appropriate case, and satisfied that the Commission acted rationally, not arbitrarily, I concur in denying the petition for review.
So positioning executive officers is in tension with the precept that ordinarily no man (or body of men) should ultimately judge his own cause. Cf. The Federalist No. 10, at 58 (J. Madison) (Ford ed. 1898); see also In re Sealed Case, 838 F.2d 476, 527 & n. 26 (D.C.Cir.) (Ruth B. *921Ginsburg, J., dissenting), rev'd sub nom. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).