United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 1998 Decided April 24, 1998
No. 97-1098
Louisiana Energy and Power Authority,
Petitioner
v.
Federal Energy Regulatory Commission,
Respondent
Central Louisiana Electric Company, Inc.,
Intervenor for
Respondent
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Milton J. Grossman argued the cause for petitioner, with
whom Wallace Edward Brand was on the briefs.
Timm L. Abendroth, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent, with whom
John H. Conway, Deputy Solicitor, was on the brief.
John T. Stough, Jr., and Thadd A. Prisco were on the brief
for intervenor Central Louisiana Electric Company, Inc.
Before: Williams, Henderson and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The Federal Power Act requires
that all rates demanded by public utilities for the transmis-
sion or sale of electric energy be "just and reasonable." 16
U.S.C. s 824d(a). Where there is a competitive market, the
Federal Energy Regulatory Commission (FERC) may rely on
market-based rates in lieu of cost-of-service regulation to
ensure that rates satisfy this requirement. Cf. Elizabethtown
Gas Co. v. FERC, 10 F.3d 866, 870 (D.C. Cir. 1993) (discuss-
ing "just and reasonable" rate requirement of Natural Gas
Act). Under its precedents, the Commission approves appli-
cations to sell electric energy at market-based rates only if
the seller and its affiliates do not have, or adequately have
mitigated, market power 1 in the generation and transmission
of such energy, and cannot erect other barriers to entry by
potential competitors. See, e.g., Heartland Energy Servs.,
Inc., 68 FERC p 61,223 at 62,060 (1994); Louisville Gas &
Elec. Co., 62 FERC p 61,016 at 61,143-44 (1993).
Without holding an evidentiary hearing, FERC approved
an application by Central Louisiana Electric Company
(CLECO) to sell electric energy at market-based rates. Lou-
isiana Electric & Power Authority (LEPA), a competitor and
customer of CLECO, challenges that approval as arbitrary
and capricious, arguing that CLECO does in fact have market
__________
1 FERC defines market power as a seller's ability to "signifi-
cantly influence price in the market by withholding service and
excluding competitors for a significant period of time." Citizens
Power & Light Corp., 48 FERC p 61,210 at 61,777 (1989).
power.2 LEPA's express concern is that by leaving CLECO's
rates unregulated, the Commission has freed CLECO to use
predatory pricing 3 to lure away LEPA's customers.
CLECO, on the other hand, argues that LEPA's "true mo-
tive" is not to prevent predatory pricing, but rather "to force
CLECO to sell ... at a higher price, so that LEPA itself can
sell at a higher [noncompetitive] price without losing load to
CLECO." Our review is limited to determining whether
FERC's decision was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." Michi-
gan Consol. Gas Co. v. FERC, 883 F.2d 117, 120 (D.C. Cir.
1989) (quoting 5 U.S.C. s 706(2)(A)). Because the Commis-
sion's approval of CLECO's application for market-based
rates was none of these, we deny the petition for review.
I
FERC interposes a threshold objection to LEPA's petition,
asserting that LEPA is not a party "aggrieved" by the
Commission's order and hence not entitled to petition for
judicial review under the Federal Power Act, 16 U.S.C.
s 825l. A party is "aggrieved" under this statute if it satis-
fies both the constitutional and prudential requirements for
standing. See Liquid Carbonic Indus. Corp. v. FERC, 29
F.3d 697, 701-04 (D.C. Cir. 1994); cf. Moreau v. FERC, 982
F.2d 556, 564 (D.C. Cir. 1993) (interpreting similar language
in Natural Gas Act). As the Supreme Court recently has
restated, the three constitutional requirements are:
__________
2 LEPA does not challenge FERC's general policy of permit-
ting market-based rates in the absence of market power.
3 The Supreme Court has stated that "[p]redatory pricing may
be defined as pricing below an appropriate measure of cost for the
purpose of eliminating competitors in the short run and reducing
competition in the long run." Cargill, Inc. v. Monfort of Colorado,
Inc., 479 U.S. 104, 117 (1986). The Court has left unresolved the
appropriate measure of such "cost." See id. at 117-18 n.12; Brooke
Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,
222-23 & n.1 (1993). Here, LEPA variously describes the predato-
ry pricing about which it is concerned as pricing below "incremental
cost" and as pricing "substantially below costs."
(1) that the plaintiff have suffered an "injury in fact"--
an invasion of a judicially cognizable interest which is (a)
concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) that there be a causal
connection between the injury and the conduct com-
plained of--the injury must be fairly traceable to the
challenged action of the defendant, and not the result of
the independent action of some third party not before the
court; and (3) that it be likely, as opposed to merely
speculative, that the injury will be redressed by a favor-
able decision.
Bennett v. Spear, 117 S. Ct. 1154, 1163 (1997). The pruden-
tial requirement relevant here is that "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. Id. at 1167.
LEPA counters that it is in fact a party "aggrieved" by the
Commission's order. It alleges that it will be injured by the
increased price competition from CLECO that will flow from
FERC's unlawful lifting of regulatory controls. And in sup-
port of its contention that such pricing will be predatory,
LEPA asserts a history of oligopolistic collusion in which
CLECO participated, alleges a relatively recent example of
predatory pricing by the oligopoly, and presents an expert's
opinion that the oligopoly will continue to exercise substantial
market power.
FERC did not contest in its brief, and at oral argument
explicitly conceded, that as a competitor and customer LEPA
comes within the zone of interests of the Federal Power Act
and hence has prudential standing to challenge the grant of
CLECO's application. The Commission contends, however,
that LEPA has failed to satisfy the "injury in fact" require-
ment for constitutional standing. More specifically, it con-
tends that LEPA's injury remains "conjectural or hypotheti-
cal" because LEPA has not demonstrated that predatory
pricing, as opposed to lower competitive pricing, "will occur"
under CLECO's new tariff. LEPA must wait to sue, FERC
argues, until it actually is injured by predatory pricing on the
part of CLECO.
But LEPA will be injured by increased price competition
from CLECO regardless whether that pricing turns out to be
predatory, as LEPA warns, or simply competitive, as CLECO
promises.4 Such injury gives LEPA an "actual" and "immi-
nent," rather than "conjectural or hypothetical," interest suf-
ficient to establish injury in fact. Moreover, that injury also
satisfies the other two constitutional requirements not con-
tested here: it is fairly traceable to FERC's decision freeing
CLECO to price at market-based rates; and it would be
redressed by a favorable decision of this court vacating
FERC's order. See Panhandle Producers & Royalty Owners
Ass'n v. Economic Regulatory Admin., 822 F.2d 1105, 1108
(D.C. Cir. 1987).
We repeatedly have held that parties suffer constitutional
injury in fact when agencies lift regulatory restrictions on
their competitors or otherwise allow increased competition.
See, e.g., MD Pharm., Inc. v. DEA, 133 F.3d 8, 11 (D.C. Cir.
1998) ("increased competition represents a cognizable Article
III injury") (quoting Liquid Carbonic, 29 F.3d at 701); Old
Town Trolley Tours, Inc. v. Washington Metro. Area Transit
Comm'n, 129 F.3d 201, 202 (D.C. Cir. 1997); First Nat'l Bank
& Trust Co. v. National Credit Union Admin., 988 F.2d 1272,
1275 (D.C. Cir. 1993); Associated Gas Distribs. v. FERC, 899
F.2d 1250, 1258 (D.C. Cir. 1990); Investment Co. Inst. v.
FDIC, 815 F.2d 1540, 1543 (D.C. Cir. 1987); see also Invest-
ment Co. Inst. v. Camp, 401 U.S. 617, 620-21 (1971). The
lifting of such restrictions alone is generally sufficient, and we
have not required litigants to wait until increased competition
actually occurs. As we said in Associated Gas Distributors,
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4 There is, of course, another possibility: if the asserted oligo-
poly truly does have market power, it could price above rather than
below the competitive price--the typical concern of classical oligo-
poly theory. See generally Paul A. Samuelson & William D.
Nordhaus, Economics 532-36 (12th ed. 1985); Donald S. Watson,
Price Theory and Its Uses 413-41 (3d ed. 1972). Under this
scenario, LEPA-as-competitor would be helped rather than harmed
by FERC's decision, and hence would not suffer injury; LEPA-as-
customer, on the other hand, would be injured. No party urges this
scenario here, however.
"petitioners sufficiently establish their constitutional standing
by showing that the challenged action authorizes allegedly
illegal transactions that have the clear and immediate poten-
tial to compete with the petitioners' own sales. They need
not wait for specific, allegedly illegal transactions to hurt
them competitively." 899 F.2d at 1259 (emphasis added).
Accord Panhandle Producers, 822 F.2d at 1108 (competitors
will suffer injury in fact from agency order permitting in-
crease in gas supply because "such an increase in supply is
likely to depress the prices that [competitors] can secure").
None of this renders irrelevant the plausibility of LEPA's
claim that predatory pricing will result from FERC's deci-
sion. But whether that pricing is likely to be predatory or
simply competitive is a question that goes to the merits of
FERC's decision to permit market-based rates and not to
constitutional standing.5 As we discuss below, LEPA's alle-
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5 Theoretically, it is also the kind of question that could be
relevant to prudential standing. See Steel Co. v. Citizens for a
Better Env't, 118 S. Ct. 1003, 1014 n.2 (1998) (citing National R.R.
Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S.
453, 456 (1974), for the proposition that "the merits inquiry and the
statutory standing inquiry often 'overlap' "). It is plain that the
antitrust laws, for example, "were enacted for the protection of
competition not competitors." Brunswick Corp. v. Pueblo Bowl-O-
Mat, Inc., 429 U.S. 477, 488 (1977) (internal quotation omitted).
But the same cannot be said about the all-pervasive regulatory
schemes of the Federal Power Act and similar statutes. See
Panhandle Producers, 822 F.2d at 1109 (holding that competitors
have standing to challenge importation order under Natural Gas
Act, and noting difference from standing under antitrust laws); see
also National Credit Union Admin. v. First Nat'l Bank & Trust
Co., 118 S. Ct. 927, 933 (1998) ("competitors of financial institutions
have [prudential] standing to challenge agency action relaxing stat-
utory restrictions on the activities of those institutions"); Associat-
ed Gas Distribs., 899 F.2d at 1259 (prudential standing of competi-
tors under Natural Gas Act); Regular Common Carrier Conference
v. United States, 793 F.2d 376, 379 (D.C. Cir. 1986) ("competitive
injury is included within the zone of interests protected by the
Interstate Commerce Act"). Here, FERC does not dispute that
gation that FERC's decision will lead to predatory pricing,
like its claim that a company with as much market power as
CLECO should not be freed of price regulation, is the core of
LEPA's argument that FERC's order was arbitrary and
capricious, and hence unlawful. A party need not prove that
the agency action it attacks is unlawful, however, in order to
have standing to level that attack.6 As we said in Claybrook
v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997), "[w]hether a
plaintiff has a legally protected interest (and thus standing)
does not depend on whether he can demonstrate that he will
succeed on the merits. Otherwise, every unsuccessful plain-
tiff will have lacked standing in the first place." To be sure,
claims that are "entirely frivolous," Steel Co. v. Citizens for a
Better Env't, 118 S. Ct. 1003, 1014 n.2 (1998), or have "no
foundation in law," Claybrook, 111 F.3d at 907, are insuffi-
cient to establish standing. LEPA's allegations, however,
cannot be characterized as frivolous, and FERC does not
suggest otherwise.
Nor are LEPA's claims unripe under our decision in North-
ern Indiana Public Service Co. (NIPSCO) v. FERC, 954 F.2d
736 (D.C. Cir. 1992). In that case, NIPSCO challenged a
__________
both concerns, predation and competition, come within the zone of
interests of the Federal Power Act.
6 See Allen v. Wright, 468 U.S. 737, 751 (1984) (holding that the
"core component" of constitutional standing is that "plaintiff must
allege personal injury fairly traceable to the defendant's allegedly
unlawful conduct ...") (emphasis added); Old Town Trolley, 129
F.3d at 202 (petitioner does not have to prove the public interest
claim required to defeat a competitor's entry on the merits in order
to pass the threshold of standing); Associated Gas Distribs., 899
F.2d at 1258 ("Those who must compete with allegedly illegal
commercial transactions have Article III standing to challenge a
regulatory order authorizing the transactions.") (emphasis added);
In re Thornburgh, 869 F.2d 1503, 1511 (D.C. Cir. 1989) ("the
[redressability prong of the standing] test assumes that a decision
on the merits would be favorable"); see also Steel Co., 118 S. Ct. at
1014 n.2 ("[t]he Article III requirement of remediable injury in fact
... except with regard to entirely frivolous claims ... has nothing
to do with the text of the statute relied upon"); id. at 1011, 1013.
FERC order approving an open-access transmission tariff for
a neighboring utility, contending that open-access transmis-
sions through that utility would put additional stress on
NIPSCO's own facilities. We accepted FERC's interpreta-
tion of its order as approving "merely the concept and outline
of open-access but [not as giving] ... final authorization to
conduct any open-access transactions." Id. at 738, 740. On
that basis, we held NIPSCO's claims "premature" and not
ripe. Id. at 740. We indicated, however, that "NIPSCO's
claims probably would be ripe" if "the orders [had] autho-
rize[d] [the neighboring utility] to provide open-access service
without further FERC action." Id. at 738. In this case,
FERC clearly has authorized CLECO to sell power at
market-based rates "without further FERC action." FERC's
order permitted CLECO's market-based tariff "to become
effective on October 8, 1996," subject only to certain revisions
it ordered CLECO to make within 15 days. Central Louisi-
ana Elec. Co., 77 FERC p 61,020 at 61,074 (1996).7 The
revisions were made, see LEPA Br. at 4, the order is effec-
tive, and CLECO is now free to compete with LEPA at
market-based rates. Hence, there is nothing premature
about LEPA's challenge.8
II
Although LEPA has standing and its claims are ripe, its
case fails on the merits. In approving CLECO's application,
__________
7 FERC's order also requires CLECO to report market-based
transactions, as well as "change[s] in status that would reflect a
departure from the characteristics the Commission has relied upon
in approving market-based pricing." 77 FERC p 61,020 at 61,074.
That the Commission may subsequently act on such reports does
not render LEPA's current challenge unripe. Any such subsequent
agency action would involve a new proceeding.
8 Cf. Cajun Elec. Power Coop., Inc. v. FERC, 28 F.3d 173, 177-
80 (D.C. Cir. 1994) (rejecting FERC argument that it was "prema-
ture[ ]" for the court to consider whether the agency's approval of
cost-recovery provisions would have an anticompetitive effect be-
cause affected parties could still challenge recovery of such costs in
particular cases).
the Commission concluded that CLECO lacked market power
in the generation of electric energy, and that by filing an
open-access transmission tariff (discussed further below),
CLECO mitigated its market power over transmission.
LEPA first challenges FERC's definition of the relevant
market for generation.9 We need not review that extended
challenge here, however, because even if LEPA's showing
were strong enough to overcome the deference due FERC's
expert judgment on the matter, cf. National Aviation Trades
Ass'n v. Civil Aeronautics Bd., 420 F.2d 209, 213-14 (D.C.
Cir. 1969) (deferring to Civil Aeronautics Board's definition of
product market), the issue is essentially moot. LEPA does
not dispute that even under its own definition of the relevant
market, CLECO's market share is still too low (8.7%) to
justify a finding of disqualifying market power under FERC's
precedents, see Louisville Gas, 62 FERC p 61,016 at 61,146
(finding that market shares of less than 20% are low enough
to demonstrate lack of market power), or to suggest that
CLECO has sufficient market power to engage in predatory
pricing, see Cargill, Inc. v. Monfort of Colorado, Inc., 479
U.S. 104, 119 n.15 (1986) (noting that 20.4% market share is
probably insufficient to sustain predatory pricing, and citing
authorities indicating that 60% or more would be necessary).
Because under any definition CLECO lacks sufficient mar-
ket power on its own, LEPA is compelled to argue that
CLECO is part of an oligopoly that controls 86% of the
market. LEPA asserts that the members of the oligopoly
have refrained from competing for each other's customers in
the past, are unlikely to compete in the future notwithstand-
ing changes in the regulatory environment, and hence provide
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9 LEPA argues that the Commission's market analysis was
flawed because it did not separately evaluate generation dominance
in the market for requirements power, which it defines as "power
sold by bulk suppliers to retail distributors with a complete assur-
ance of availability." Central Louisiana Elec. Co., 77 FERC
p 61,020 at 61,072.
the market structure necessary to support predatory pricing.
FERC rejects this assertion as "broad and unsubstantiated."
Central Louisiana Elec. Co., 78 FERC p 61,089 at 61,325
(1997) (order denying rehearing). That characterization
seems appropriate. The only evidence LEPA advances to
support its claim is the affidavit of an economics expert. See
Joint Appendix ("J.A.") 54-94. But the expert's theoretical
conclusion that the relevant market is dominated by a "tight
oligopoly" whose members do not compete with each other is
concededly based entirely on undocumented assertions of
historical fact by LEPA's former general manager. Cf.
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,
509 U.S. 209, 242 (1993) ("When an expert opinion is not
supported by sufficient facts to validate it ..., it cannot
support a jury's verdict."). Moreover, although the expert
characterizes the market structure as a tight oligopoly, he
does not address whether that structure's components are
sufficient to satisfy the specific prerequisites for successful
predatory pricing--indeed, he does not mention the prospect
of future predatory pricing at all. Cf. id. at 226 ("Determin-
ing whether recoupment of predatory losses is likely requires
... a close analysis of ... the structure and conditions of the
relevant market."). And while LEPA filed a complaint in a
separate FERC proceeding asserting a past instance of pred-
atory pricing, the administrative law judge who heard the
case rejected LEPA's claim, see Central Louisiana Elec. Co.,
70 FERC p 63,015 (1995), and the facts of that proceeding are
not before us. Given the well-recognized difficulties faced by
an oligopoly attempting to coordinate a predatory pricing
scheme among multiple firms, see Brooke Group, 509 U.S. at
227-28, and the absence of any evidence from LEPA address-
ing those difficulties in the specific context of the market at
issue here, we find reasonable FERC's conclusion that there
are no market-power considerations that should bar
CLECO's application to sell at unregulated rates. See gener-
ally K N Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C.
Cir. 1992) (acknowledging "substantial deference" owed to
FERC "in matters predictive and economic").10
We also find reasonable FERC's further argument that
even if CLECO had participated in oligopolistic behavior in
the past, the Commission's new open-access transmission
rules have transformed the competitive environment. Those
rules seek to break a utility's monopoly over the transmission
of electric power by requiring that the utility permit whole-
sale sellers to transmit power over its facilities under the
same terms and conditions as the utility itself transmits
power. See Promoting Wholesale Competition Through Open
Access Non-Discriminatory Transmission Services by Public
Utilities ("Order No. 888"), 61 Fed. Reg. 21,540, 21,540-42
(1996).11 Thus, competitors outside the current, alleged oligo-
poly will now be able to transmit power into CLECO's
territory on nondiscriminatory terms. Whatever may have
been their past practices, FERC believes that this change
renders it unlikely that "energy suppliers will decline to
participate in the emerging competitive markets." Central
Louisiana Elec. Co., 77 FERC p 61,020 at 61,073. This is the
kind of reasonable agency prediction about the future impact
of its own regulatory policies to which we ordinarily defer.
See Michigan Pub. Power Agency v. FERC, 963 F.2d 1574,
1580 (D.C. Cir. 1992) ("agencies are afforded wide deference
in predicting the likelihood of future events"); Environmen-
tal Action, Inc. v. FERC, 939 F.2d 1057, 1064 (D.C. Cir. 1991)
__________
10 We also note petitioner's statement at oral argument that
Entergy, Inc., the largest member of the alleged oligopoly with a
70% market share, already has received FERC approval to price at
market rates and that LEPA, pursuant to a settlement, will not
challenge that approval. LEPA has not explained how FERC's
approval of market rates for CLECO (with only an 8.7% market
share) would materially affect the likelihood of predation under
these circumstances.
11 Order No. 888 has been challenged in petitions for review
filed with the Second Circuit, which recently ordered the litigation
transferred to this Circuit. See New York v. FERC, No. 97-4034
(2d Cir. Feb. 26, 1998). The validity of Order No. 888 is not before
us in this case.
("it is within the scope of the agency's expertise to make such
a prediction about the market it regulates, and a reasonable
prediction deserves our deference notwithstanding that there
might also be another reasonable view"); Michigan Consol.
Gas, 883 F.2d at 124 ("Making predictions is clearly within
the Commission's expertise and will be upheld if rationally
based on record evidence.") (citations and internal quotations
omitted).
Indeed, in the context of LEPA's fears of predatory pric-
ing, this change in the competitive environment is particularly
potent. It means that CLECO will not be able to price below
cost to drive LEPA out of business, and then rely on the
forbearance of its oligopoly partners to allow it to recoup its
predatory losses by pricing supracompetitively. However
much those partners might be willing to cooperate (which
would itself require a difficult allocation of present losses and
future gains), they will be unable to prevent other potential
competitors from transmitting power into the area if prices
become supracompetitive. Yet, without an expectation of
successful recoupment, a rational seller is unlikely to under-
take a course of predatory pricing. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986).
Finally, FERC notes that should the Commission's san-
guine predictions about market conduct turn out to be incor-
rect, LEPA can file a new complaint for any abuses of market
power that do occur. See Central Louisiana Elec. Co., 77
FERC p 61,020 at 61,073. While this escape hatch might be
insufficient if LEPA had shown a substantial likelihood that
FERC's predictions would prove incorrect,12 it provides an
appropriate safeguard against the uncertainties of FERC's
prognostications where there has been no such showing.13
On the record before us, the likelihood is that competition and
consumer welfare will be enhanced rather than undercut by
__________
12 See Cajun Elec., 28 F.3d at 177-80; Michigan Pub. Power,
963 F.2d at 1581.
13 See Environmental Action v. FERC, 996 F.2d 401, 410 (D.C.
Cir. 1993); Michigan Pub. Power, 963 F.2d at 1579-81.
the ability of CLECO to sell at market-based rates, and
hence the direction in which FERC has chosen to err, if it
errs at all, seems perfectly reasonable. Cf. Cargill, 479 U.S.
at 122 n.17 ("because cutting prices in order to increase
business often is the very essence of competition ... mistak-
en inferences [of predatory conduct] ... are especially cost-
ly") (internal quotation omitted); Brooke Group, 509 U.S. at
224 ("unsuccessful predation is in general a boon to consum-
ers"); Richard J. Pierce, Jr., Antitrust Policy in the New
Electricity Industry, 17 Energy L.J. 29, 34-41 (1996).
III
We also reject LEPA's allegation that it was arbitrary and
capricious for FERC to approve CLECO's application with-
out first holding an evidentiary hearing. In general, the
Commission must hold an evidentiary hearing "only when a
genuine issue of material fact exists, and even then, FERC
need not conduct such a hearing if [the disputed issues] may
be adequately resolved on the written record." Cajun Elec.
Power Coop., Inc. v. FERC, 28 F.3d 173, 177 (D.C. Cir. 1994)
(internal quotations and citations omitted). We will reverse
FERC's decision to deny an evidentiary hearing only for an
abuse of discretion. See id.
Contrary to LEPA's claims, this is not a case like Cajun
Electric, where the record revealed a substantial factual
dispute as to whether a FERC-approved tariff truly mitigated
a utility's monopoly power, see id. at 175, and where the
Commission "ignored this important question" and "failed to
adequately explain its approval," id. at 180. Here, FERC
neither ignored LEPA's concerns about market power, nor
failed to explain adequately why they did not carry the day.
Moreover, because LEPA conceded that even under its defi-
nition of the relevant market, CLECO by itself did not
possess market power, the only arguably disputed material
fact was whether CLECO was a member of a historical
oligopoly capable of supporting a predatory pricing scheme.
That assertion may well have been so unsubstantiated as to
justify a decision on the written record. See Michigan Pub.
Power, 963 F.2d at 1583 (FERC "need not launch a full
investigation just because a party cries 'anticompetitive be-
havior' "). But regardless of its validity, that claim, too, was
rendered nonmaterial by FERC's conclusion that the advent
of open-access transmission tariffs made such historical con-
duct a poor predictor of future competitive behavior. That
left only the question whether FERC's own prediction about
the competitive future was reasonable. And in light of the
considerations discussed in Part II above, that was an issue
the Commission could readily resolve against LEPA on the
written record. Cf. id.; Louisiana Ass'n of Indep. Producers
& Royalty Owners v. FERC, 958 F.2d 1101, 1113-14 (D.C.
Cir. 1992).
In sum, we find neither FERC's approval of CLECO's
market-based tariff, nor its decision to render that approval
without an evidentiary hearing, arbitrary or capricious. Ac-
cordingly, we deny LEPA's petition for review.