dissenting:
I respectfully dissent, for I cannot agree that petitioners fail to satisfy the requirements for standing in this court.
In concluding that petitioners have not established an injury in fact sufficient to give them standing, my colleagues ignore the harm the Board’s decision has done to petitioners’ interest in occupying habitable housing. The Housing Regulations of the District of Columbia, 5G DCRR §§ 2401, 2405, require the owner of residential premises to provide and maintain plumbing facilities and utilities. The District is to enforce these regulations, with a view to protecting the community from hazards jeopardizing the public health, safety, welfare and morals. See id., § 2101.
*219Obviously, residents in housing that does not conform to the regulations are injured in fact by an owner’s refusal to provide essential services. It follows that the tenant-petitioners here were injured in fact by the Board’s decision not to enforce the regulations requiring the owner of their building to provide utilities. They clearly have “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.. .. ” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
My colleagues apparently would agree but for one fact: the District has elected to provide petitioners with gas and water pursuant to D.C.Code 1973, § 5-313 1-a decision which my colleagues believe moots petitioners’ standing. I disagree. Section 5-313 permits the Mayor to assume responsibility for eliminating housing code violations and to charge the property owner for the cost of doing so. The District, however, is under no legal obligation to undertake this responsibility; the plain language of the statutes states that it is within the discretion of the District to provide-and thus to withdraw-the utilities.2 It is inconceivable to me that the District’s election to provide such services for the time being under § 5-313 moots petitioners’ interest in enforcing the Housing Regulations against the only entity that can be legally bound to provide them, namely the owner of the building. That interest is especially well illustrated by the following reality: at any moment, the District could decide to discontinue its provision of utilities. This would leave the tenant-petitioners without any legal recourse, since the owner-the only party with a statutory duty to maintain utilities-is having its rights determined by virtue of this very proceeding. In other words, there will be no way for petitioners to contest a utilities cut-off against the landlord once the District has elected to discontinue its support under § 5-313. Under these circumstances, petitioners unquestionably comply with the jurisdictional prerequisites of our statute, D.C.Code 1978 Supp., § 1-1510, as persons “suffering a legal wrong, or adversely affected or aggrieved by an order or decision” of the Board (1) denying the tenants an opportunity to have their say in the variance proceeding and (2) granting the landlord’s requested variance.
In summary, I cannot agree with my colleagues’ premise that petitioners are not harmed by the Board’s decision; for that decision conclusively denies an enforceable order that the landlord provide heat and water, leaving petitioners instead to the grace of the District government. It follows that petitioners have standing to ask this court to review the merits of their petition.3
.“Whenever the owner of any real property in the District of Columbia shall fail or refuse . . . to correct any condition which exists on or has arisen from such property in violation of law or of any regulation made by authority of law ... the [Mayor] of the District of Columbia may, and he is authorized to, cause such condition to be corrected[.]” D.C.Code 1973, § 5-313 (emphasis added).
.Although a district judge held that the District of Columbia is obligated to provide emergency services for a short term if the owner is beyond the effective power of the court, that same court concluded that the District cannot be ordered to provide such services on a long-term basis, or to make repairs. See Masszonia v. Washington, 321 F.Supp. 965, 970-71 (D.D.C.1971), dismissed as moot and remanded, 155 U.S.App.D.C. 159, 476 F.2d 915 (1973).
.By evaluating injury in fact only with reference to whether petitioners were, or were not, being supplied with utilities-a focus on the merits of the controversy-my colleagues glide over the fact that there are actually two separate questions of injury presented: whether petitioners were (1) “aggrieved” by the Board’s denial of their Motion for Leave to Intervene, and (2) “aggrieved” by the merits of the Board’s decision that B.G.M. is no longer required to provide gas and water. Courts, as well as scholars, have recognized that denial of a petition to intervene in an agency’s proceeding creates, in itself, an aggrievement entitling the petitioners to judicial review of that denial, without regard to whether that petitioner would have standing to seek review of the merits of the agency action. See NLRB v. Majestic Weaving Co., Inc., 344 F.2d 116, 117 (2d Cir.1965); 3 K. Davis, Administrative Law Treatise, § 22.08 at 241-43 (1958); Shapiro, *220Some Thoughts on Intervention before Courts, Agencies and Arbitrators, 81 Harv.L.Rev. 721, 728 (1968).
It follows that, if the court were to conclude the agency did abuse its discretion in denying intervention, there would have to be a remand for a new proceeding; the court could not at that time rule on the merits of the petitioners’ alleged injury, before they had been given an opportunity (by way of intervention) to try to convince the agency in the first instance, with the help of traditional testimony and argument. If, however, the court were to conclude that the agency did properly deny intervention, the court would then have to inquire whether the agency’s decision on the merits nonetheless “adversely affected or aggrieved” the petitioners, D.C.Code 1978 Supp. § 1-1510, so as to confer standing to contest the merits. By dealing only with this latter question, my colleagues implicitly have decided the first question: that the Board did not abuse its discretion in denying intervention. 1 have no quarrel with that conclusion.