JOHN R. BLOCK, SECRETARY OF AGRICULTURE, AND UNITED STATES
DEPARTMENT OF AGRICULTURE, PETITIONERS V. COMMUNITY NUTRITION
INSTITUTE, ET AL.

   No. 83-458

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of the Secretary of Agriculture
and the United States Department of Agriculture, petitions for a writ
of certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties shown by the caption, Deborah Harrell,
Ralph Desmarais, Zy Weinberg, and Joseph Oberweis were plaintiffs in
the district court and appellants in the court of appeals, and are
respondents here.  The National Milk Producers Federation, the
Associated Milk Producers, Inc., and the Central Milk Producers
Cooperative were granted leave to intervene as defendants in the
district court, appeared as appellees in the court of appeals, and,
pursuant to Rule 19.6 of the Rules of this Court, are respondents in
this Court.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G
   Appendix H

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-44a) is
reported at 698 F.2d 1239.  The opinion of the district court (App. G,
infra, 53a-67a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals (App. B, infra, 45a-46a) was
entered on January 21, 1983.  A petition for rehearing was denied on
April 19, 1983 (App. E, infra, 50a).  /1/ On July 8, 1983, the Chief
Justice extended the time for filing a petition for a writ of
certiorari to and including September 16, 1983.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The relevant provisions of the Agricultural Marketing Agreement Act
of 1937, 7 U.S.C. 601 et seq., are set forth in Appendix H, infra,
69a-95a.

                          QUESTIONS PRESENTED

   The Agricultural Marketing Agreement Act of 1937 provides that a
handler regulated by a market order issued pursuant to the Act may
challenge that order in an administrative proceeding before the
Secretary of Agriculture (7 U.S.C. 608c(15)(A)).  The Act further
provides that if a handler is dissatisfied with the Secretary's
decision, he may then obtain judicial review of that decision in the
appropriate federal district court (7 U.S.C. 608c(15)(B)).  The
questions presented are:

   1. Whether this statutory scheme for reviewing market orders
precludes judicial review of milk market orders at the behest of
ultimate consumers of milk products, who are neither regulated
handlers nor producers, the direct beneficiaries of the market orders.

   2. Whether ultimate consumers of milk products, who assert
interests that are either antithetical to the interests Congress
sought to promote in the Act or are not implicated by the market
orders challenged in this litigation, lack standing to maintain this
lawsuit.

                               STATEMENT

   This case concerns the jurisdiction of a federal district court to
entertain a challenge to market orders by unregulated ultimate
consumers of milk products who are nowhere included in the statutory
scheme for administrative and judicial review of market orders and
whose asserted interests are antithetical to the interests Congress
sought to promote in the statute.

   1. a. Section 8c of the Agricultural Marketing Agreement Act of
1937 ("AMAA"), 7 U.S.C. 608c, authorizes the regulation of numerous
agricultural commodities and products, including milk.  One of
Congress' primary purposes in enacting the AMAA was to end destructive
price competition in the dairy industry, the structure of which "is so
eccentric that economic controls have been found at once necessary and
difficult." H.P. Hood & Sons, Inc. V. Du Mond, 336 U.S. 525, 529
(1949).

   The ruinous competition among dairy farmers that concerned Congress
centered on fluid milk sales because such sales bring higher prices
than do sales of milk for "surplus" use, i.e., use in manufacturing
butter, cheese, and other milk products.  See Zuber V. Allen, 396 U.S.
168, 172-176 (1969);  United States V. Rock Royal Co-operative, Inc.,
307 U.S. 533, 548-550 (1939);  Nebbia V. New York, 291 U.S. 502,
515-518, 530 (1934).  /2/ One of the principal tools Congress used to
correct this problem and to guard against its recurrence was the
market order system authorized by 7 U.S.C. 608c.  The "essential
purpose of (the market orders regulating commodities is) to raise
producer prices." S. Rep. No. 1011, 74th Cong., 1st Sess. 3 (1935).
With respect to milk, such orders provide a method by which the
benefits of the desirable fluid milk market and the burdens of the
surplus milk market are fairly and proportionally shared among all
dairy farmers supplying a given market.  See Nebbia V. New York,
supra, 291 U.S. at 517-518.

   Under the authority of the Act, the Secretary has issued 46 milk
market orders, each encompassing a different region of the country
(see 7 C.F.R. Parts 1001-1139).  The orders establish minimum prices
that handlers (those who process the raw milk) must pay to producers
(dairy farmers).  The prices are determined according to a
classification system based on the end use to which the raw milk is
put by the handlers.  See 44 Fed. Reg. 65990 (1979).  If the milk is
used in hard manufactured products such as cheese, butter, dry whole
milk, or nonfat dry milk, a handler pays at least the Class II minimum
price (ibid.).  /3/ For milk used as fluid milk, a handler pays the
higher, Class I minimum price (ibid.).  Under all but three of the
market orders, all handlers' payments for regulated milk used in the
different classes are pooled, and farmers are paid from the pool on
the basis of the weighted average price received for milk in all
uses-- the "blend price" (ibid.).  Thus, handlers pay according to
use, as required by 7 U.S.C. 608c(5)(A).  Farmers, on the other hand,
receive a uniform, blend price, as required by 7 U.S.C. 608c(5)(B),
and no longer have to engage in counterproductive competition for
fluid milk sales.

   b. Reconstituted or recombined milk is manufactured by mixing milk
powder with water.  See 44 Fed.Reg. 65990 (1979).  Consumers can
purchase milk powder and reconstitute it themselves by mixing it with
water.  Such milk powder is not the subject of this litigation.
Instead, respondents brought this action to challenge the market order
regulation of milk that a handler reconstitutes into fluid milk.

   Since 1964, the Secretary has treated handler reconstituted fluid
milk as a Class I product in order to ensure the integrity of the end
use classification system.  See 29 Fed. Reg. 9010 (1964).  The
Secretary reconsidered the issue in 1968 and again determined that
regulation of reconstituted milk was required to assure uniform and
adequate minimum prices and to prevent the recurrence of destructive
competition among farmers.  The Secretary explained (34 Fed.Reg. 16883
(1969)):

         Primarily the problem relates to the conversion by a handler
      of a product, such as nonfat dry milk, normally priced as a
      surplus use into another product for Class I use.  In addition,
      the possible entrance into the market of reconstituted products
      from unregulated sources enlarges the problem.

         The potential of these conditions for disruptive influence on
      the market for producer milk is extremely serious because
      disposition of a product for a Class I use but pricing it in a
      surplus price class undermines the the classified pricing
      system.

                 *     *     *     *     *

         The objectives of classified pricing are uniformity of
      pricing according to form or use and providing an adequate
      return to producers for the fluid market.  Therefore, the
      widespread disposition of filled milk made from reconstituted
      skim milk, if the skim milk were not subject to some
      "equalizing" payment, could lead to total defeat of such
      objectives.  Certainly, the classification and pricing plan
      should protect the Class I market from the but also to insure
      the integrity of the classified pricing system as a means of
      assuring reasonable prices to producers.

   Accordingly, each of the regional milk market orders defines
reconstituted milk that is used for drinking purposes as "fluid milk,"
thereby including it in Class I (see 44 Fed. Reg. 65990 (1979)).
Under this system, handlers pay at least the minimum Class I price for
all milk products used for fluid consumption.  Thus, if a handler
dries the raw milk received from a producer, then reconstitutes it and
uses it as fluid milk, it is priced as a Class I product.  If,
however, the handler dries producer milk into powder and stores or
sells it as powder, the powder is priced to him as a Class II or Class
III product.  /4/

   2. The Secretary issues a market order only after rulemaking
proceedings that include public notice and the opportunity for a
hearing (7 U.S.C. 608c(3) and (4)).  The evidence introduced at the
hearing must show "that the issuance of such (proposed) order and all
of the terms and conditions thereof will tend to effectuate the
declared policy of this chapter with respect to such commodity" (7
U.S.C. 608c(4)).  But before a milk market order can become effective,
it must be approved by the handlers of at least 50% of the volume of
milk covered by the proposed order and two-thirds of the dairy
producers in the affected region (7 U.S.C. 608c(8)).  If the handlers
withhold consent, the Secretary may nevertheless impose the order if
he determines that it is "the only practical means of advancing the
interests of the producers" and two-thirds of the producers consent (7
U.S.C. 608c(9)(B)).  An order may be terminated by the Secretary (7
U.S.C. 608c(16)(A)) or by a majority of the producers in an order area
(7 U.S.C. 608c(16)(B)).

   Because this statutory scheme gives handlers considerably less
control than producers over the adoption and retention of market
orders, the Act expressly provides for administrative and judicial
review of market orders at the behest of handlers.  Specifically, 7
U.S.C. 608c(15)(A) provides that "(a)ny handler subject to an order
may file a written petition with the Secretary of Agriculture, stating
that any such order or any provision of any such order or any
obligation imposed in connection therewith is not in accordance with
law and praying for a modification thereof or to be exempted
therefrom." If dissatisfied with the Secretary's ruling on the
administrative petition, the handler may seek judicial review of "such
ruling" in the appropriate district court (7 U.S.C. 608c(15)(B)).  The
Act contains no other provisions for the review of market orders.

   3. In December 1980, respondents /5/ commenced this action in the
United States District Court for the District of Columbia, seeking a
declaration that all of the milk market orders, insofar as they apply
to reconstituted milk products and milk powder used to make
reconstituted milk products, are invalid, and an injunction
prohibiting petitioners from "implementing" the regulations (which
have been in effect since 1964) (C.A. App. 29).  The plaintiffs, who
included three individual consumers of fluid dairy products, sought to
have the Secretary amend the milk market orders so that reconstituted
milk would no longer be deemed a Class I product, regardless of its
end use by a handler.  /6/ In their complaint, the individual
consumers alleged that "(t)he existing regulations have denied them
the opportunity to purchase a lower price reconstituted milk product
in lieu of raw fluid milk" (C.A. App. 21).  /7/ Joseph Oberweis, a
handler regulated by one of the market orders, and the Community
Nutrition Institute, a self-described "nonprofit charitable
organization" (id. at 20-21), joined the individual consumers as
plaintiffs.

   Ruling on cross-motions for summary judgment, the district court
dismissed the complaint for lack of jurisdiction (App. G, infra,
53a-67a).  Citing Rasmussen v. Hardin, 461 F.2d 595, 599 (9th Cir.),
cert. denied, 409 U.S. 933 (1972), and Suntex Dairy v. Bergland, 591
F.2d 1063, 1067 n.3 (5th Cir. 1979), the district court concluded that
Congress intended to preclude ultimate consumers from seeking judicial
review of milk market orders (App. G, infra, 65a-66a).  The district
court also held that the consumers lacked standing because, even if
the regulations were changed, too many other variables could affect
the prices paid by consumers for reconstituted milk;  thus, the court
concluded that "any benefit to the (consumer) plaintiffs from the
proposed changes in the regulations is (too) hypothetical and
speculative" to confer standing (id. at 61a).  In addition, the
district court concluded that the interest asserted by the consumers
-- lower prices for one type of fluid milk -- was outside the zone of
interests protected by the AMAA.  The relevant provisions of the
statute, the court noted, were intended to protect consumers only
against rapid or excessive price increases and against prices above
the parity level (id. at 62a-64a).  Because those interests were not
implicated in this case, the court held that the statute did not
confer standing on these consumers (id. at 64a).  Finally, the
district court dismissed the milk handler because he had failed to
exhaust his administrative remedies under 7 U.S.C. 608c(15) (App. G,
infra, 66a-67a).

   4. A divided panel of the court of appeals affirmed in part and
reversed in part, and remanded the case for a decision on the merits.
The court of appeals agreed with the district court's dismissal of the
milk handler and the nutrition organization (App. A, infra, 27a-33a).
The majority held, however, that the district court had erred in
dismissing the complaint of the individual consumers (id. at 12a-26a).

   With respect to preclusion of review, the court of appeals declined
to follow Rasmussen v. Hardin, supra, concluding that the Ninth
Circuit's analysis of the statutory structure of the AMAA and its
purposes did not reveal "the type of clear and convincing evidence of
congressional intent needed to overcome the presumption in favor of
judicial review" (App. A, infra, 27a n.75).  As for standing, the
court concluded that the individual consumers had satisfactorily
alleged injury in fact by claiming that the regulations deprive them
of a lower priced alternative to whole milk and that the absence of
manufacturer reconstituted milk results in seasonal shortages in the
milk supply (id. at 14a).  The majority repeatedly questioned whether
the consumers' allegations of injury and redressability were capable
of proof, but it concluded that they were sufficient to require a
trial on the merits (id. at 14a, 16a, 17a-19a).

   The court of appeals also held that the concerns of the individual
consumers in this case were within the zone of interests protected by
the AMAA.  The majority rejected the district court's reliance on the
AMAA's legislative history to determine the zone of interests arguably
protected by the statute, concluding that plaintiffs are "only
required to assert an interest 'which is arguable from the face of the
statute'" (App. A, infra, 22a (emphasis in original), quoting Tax
Analysts & Advocates v. Blumenthal, 566 F.2d 130, 142 (D.C. Cir.
1977), cert. denied, 434 U.S. 1086 (1978)), and that the individual
consumers "have clearly done this much" (App. A, infra, 22a).  Thus,
the majority not only chastised the district court for "examining the
legislative history in great detail" (id. at 23a), but in fact
declined to examine it at all.  Finally, while noting that the
individual consumers' asserted injury "is shared by many other
persons, i.e., every other cost-conscious consumer of milk" (id. at
25a), the majority ruled that the consumers' claim was not barred as a
generalized grievance (id. at 25a-26a).

   Judge Scalia dissented in part.  Judge Scalia concluded that the
individual consumers lacked standing, and thus he would have affirmed
the judgment of the district court in its entirety (App. A, infra,
35a-44a).  In his view, the consumers' interests fall outside the zone
of interests arguably protected by the AMAA.  Judge Scalia placed
considerable weight on the fact that the individual consumers are
"indirect general beneficiaries" of the AMAA (id. at 38a) and observed
that "where there is a direct and immediate beneficiary class which
can be relied upon to challenge agency disregard of the law, the claim
of the indirect general beneficiaries to be congressionally designated
'private attorneys general' is weak indeed" (ibid.).  As applied to
this case, Judge Scalia thus reasoned that (id. at 38a-39a):

      The direct beneficiaries of milk marketing orders under the
      Agricultural Marketing Agreement Act (AMAA) are milk producers.
      * * * On the other side of the ledger, the direct beneficiaries
      of any limitations upon the Secretary's authority with regard to
      milk marketing orders are the milk handlers who pay the
      artificially established prices. * * * In such a situation,
      where the narrow class immediately affected by both agency
      excess and agency omission is readily identifiable, I do not
      believe that a more remote beneficiary class as generalized as
      the one here (viz, all consumers of fluid milk products -- which
      cannot exclude many of the nation's households) can be found to
      meet the zone of interests test.

   The government and the intervenor-appellees petitioned for
rehearing en banc.  The petitions were denied over the dissenting
votes of Judges MacKinnon, Bork, and Scalia (Apps. D and F, infra,
48a-49a, 51a-52a).

                   REASONS FOR GRANTING THE PETITION

   The decision below, in direct conflict with the Ninth Circuit's
decision in Rasmussen v. Hardin, 461 F.2d 595, cert. denied, 409 U.S.
933 (1972), and with the views expressed by the Fifth Circuit in
Suntex Dairy v. Bergland, 591 F.2d 1063 (1979), is the first in the
nearly 50-year history of the market order system to hold that
ultimate consumers of regulated agricultural commodities have standing
and are proper parties to contest market orders.  The case thus
presents important questions concerning the orderly administration and
review of commodity market orders issued by the Secretary of
Agriculture under the AMAA.  The significance of these questions is
heightened by the vast scope of the regulatory program at issue, the
complexity of which this Court has often recognized.  See, e.g., Zuber
v. Allen, 396 U.S. 168, 172 (1969);  United States v. Ruzicka, 329
U.S. 287, 292 (1946).  The Department of Agriculture advises us that
the value of milk handled under the various regional market orders
exceeds an average of $1 billion each month.  Moreover, it would seem
that the court of appeals' ruling would logically extend to market
orders covering other agricultural products, and approximately $6
billion worth of fruits, vegetables and specialty crops were handled
under those market orders in 1982.  The regulation of these
commodities is so complex that some orders require adjustments to be
made as often as once a week during the marketing season.

   The court of appeals' decision appears to sanction challenges to
all of these orders by every milk, fruit and vegetable consumer in the
country.  A primary purpose of the statutory program is to promote
market stability, but judicial intervention at the behest of consumers
who are strangers to the producer-handler relationship could result in
constant uncertainty about the validity of the orders.  Such
uncertainty is likely to "engender those subtle forces of doubt and
distrust which so readily dislocate delicate economic arrangements."
United States v. Ruzicka, supra, 329 U.S. at 293.

   If the decision below is allowed to stand, highly technical and
complex market orders will be subject to direct attack in the courts
without first being reviewed in the administrative proceedings
contemplated by Congress.  Consumers acting as "stalking horses" for
handlers, or even handlers suing in their capacity as alleged
consumers, will be able to by-pass completely the Act's exclusive
procedures for administrative and judicial review.  Thus, in granting
ultimate consumers standing to launch direct attacks in the courts
against agricultural market orders, the court of appeals improperly
ignored this Court's teachings that the intent of Congress to preclude
review, if fairly perceived from the overall statutory scheme adopted
by Congress for regulating the particular industry in issue, must be
respected.

   Closely related to the question of preclusion of review is the
court of appeals' erroneous conclusion that the individual consumers
adequately demonstrated their standing to maintain this action.  Of
course, if the Court agrees with our submission that Congress intended
to preclude all consumers from seeking judicial review of market
orders, it need not reach the issue of respondents' standing.  But, at
minimum, examination of the structure and legislative history of the
AMAA clearly indicates that Congress did not intend to protect the
interests asserted by the individual consumers in this litigation;  on
the contrary, their interest in lower prices for reconstituted fluid
milk is inconsistent with Congress' primary purpose in enacting the
statute, while their interest in ensuring stable supplies of fluid
milk products simply is not implicated by the regulations at issue in
this case.  Accordingly, review by this Court is warranted to resolve
the conflict among the circuits on the question of preclusion of
review and to correct the court of appeals' manifest error with
respect to consumer standing.

   1. a. The decision below squarely conflicts with the Ninth
Circuit's decision in Rasmussen v. Hardin.  In that case, the Ninth
Circuit held that consumers of a filled milk product were barred from
seeking review of the milk market order provisions that effectively
raised the price of the product in the same manner that the market
order provisions at issue in this case effectively raise the price of
manufacturer reconstituted fluid milk.  The court held that "clear and
convincing evidence" of an intent to preclude review by consumers
could be "inferred from (the statutory) purpose." Rasmussen v. Hardin,
supra, 461 F.2d at 599, quoting Barlow v. Collins, 397 U.S. 159,
166-167 (1970).  The court went on to explain (461 F.2d at 599) that:

      (It cannot) be said that Congress overlooked consumers, and that
      therefore it did not intend to exclude them from obtaining
      administrative and judicial review of the Secretary's orders.
      The Act contains some pious platitudes about the interests of
      consumers. * * * The primary purpose of the Act, however, is to
      protect the purchasing power of the farmers and the value of
      agricultural assets. * * * The whole scheme of the Act is to
      raise the prices of agricultural products to, and keep them at,
      levels fixed by the Secretary, and to establish "orderly"
      marketing of them.  Bluntly stated, that means, in part,
      marketing freed to a very large extent from price competition.
      It is arguable that the immediate, and possibly the long-run,
      interests of consumers are contrary to these goals. * * * (I)t
      is very clear that the whole structure of the Act contemplates a
      cooperative venture between the Secretary, the producers, and
      handlers.  Nowhere in the Act can we find an express provision
      for participation by consumers in any proceeding.  We are
      convinced that this is no accident.

   The Fifth Circuit has suggested that it would reach the same result
if confronted with a case squarely presenting the issue.  In Suntex
Dairy v. Bergland, supra, 591 F.2d at 1067 n.3, the court upheld
producers' standing to challenge a milk market order but distinguished
consumer interests:

      We find the generalized interests of consumers in a marketing
      order totally different from the interests of producers.  The
      statute goes to great lengths to guard the interests of
      producers by providing for administrative hearings and a
      ratification referendum.  No such Congressional deference was
      shown consumers.

   In Rasmussen, the Ninth Circuit also noted that consumer suits
would be particularly anomalous because the statute contains no
requirement for consumers to exhaust administrative remedies, whereas
handlers, who are given an express right of judicial review, must
first exhaust administrative remedies.  Consumer suits would thus mean
that handlers could evade the exhaustion requirement by latching on to
consumer "front-men." See Rasmussen v. Hardin, supra, 461 F.2d at 600.
 This case vividly demonstrates the potential for such abuse of the
legislative scheme.  Respondent Oberweis was dismissed for failure to
exhaust his administrative remedies as a handler (App. A. infra,
31a-33a;  App. G, infra, 66a-67a).  Yet as a result of the majority's
decision to allow the individual consumers to maintain this action,
Oberweis will still have his claims adjudicated without first invoking
the administrative process.  Indeed, it would not be at all surprising
if Oberweis were a "cost-conscious consumer," as well as a milk
handler, and the decision below would appear to allow for amendment of
the complaint to add Oberweis in his new-found capacity as a consumer
plaintiff.

   This Court has expressly disapproved of analogous efforts to
frustrate carefully constructed congressional schemes for orderly
administrative and judicial review.  See e.g. Great American Federal
Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 375-376 (1979) ("If a
violation of Title VII could be asserted through Section 1985(3), * *
* the complainant could completely bypass the administrative process,
which plays such a crucial role in the scheme established by Congress
in Title VII");  Brown v. General Services Administration, 425 U.S.
820, 832-833 (1976) ("The balance, completeness, and structural
integrity of Section 717 are inconsistent with the petitioner's
contention that the judicial remedy afforded by Section 717(c) was
designed merely to supplement other putative judicial relief. * * *
Under the petitioner's theory, by perverse operation of a type of
Gresham's law, Section 717, with its rigorous administrative
exhaustion requirements and time limitations, would be driven out of
currency were immediate access to the courts under other, less
demanding statutes permissible.").

   Similarly, authorizing consumer litigants to challenge market
orders issued under the AMAA offers the potential for considerable
mischief.  Congress had sound reasons for concluding that attacks on
market orders should be considered by the Secretary in the first
instance.  The questions raised in such attacks are often complex, and
their resolution requires an intimate knowledge of the economic and
technical factors underlying the marketing of the various agricultural
products subject to regulation -- e.g., milk, nuts, fruits,
vegetables, and hops (7 U.S.C. 608c(2)).  It is thus desirable that,
before judicial intervention is sought, these questions be presented
to the Secretary, who possesses the requisite expertise to illuminate
and resolve them.  See, e.g., Blair v. Freeman, 370 F.2d 229, 232
(D.C. Cir. 1966) ("A court's deference to administrative expertise
rises to zenith in connection with the intricate complex of regulation
of milk marketing.").

   This Court recognized the importance of these considerations in
United States v. Ruzicka, supra.  In rejecting an effort by a handler
to attack for the first time the validity of an order of the Secretary
of Agriculture as a defense to a judicial enforcement proceeding
brought by the Secretary, the Court stressed the purposes of the
statutory review provisions (329 U.S. at 294):

      Congress has provided a special procedure for ascertaining
      whether such an order is or is not in accordance with law.  The
      questions are not, or may not be, abstract questions of law.
      Even when they are formulated in constitutional terms, they are
      questions of law arising out of, or entwined with, factors that
      call for understanding of the milk industry.  And so Congress
      has provided that the remedy in the first instance must be
      sought from the Secretary of Agriculture.  It is on the basis of
      his rulings, and of the elucidation which he would presumably
      give to his ruling, that resort may be had to the courts.  /8/

   Ruzicka articulated another important reasons for requiring
handlers to exhaust the statutorily-prescribed administrative remedies
when it stressed the disruptive potential of premature litigation (329
U.S. at 293):

      Failure by handlers to meet their obligations promptly would
      threaten the whole (regulatory) scheme. * * * To make the
      vitality of the whole arrangement depend on the contingencies
      and inevitable delays of litigation, no matter how alertly
      pursued, is not a result to be attributed to Congress unless
      support for it is much more manifest than we here find.  That
      Congress avoided such hazards for its policy is persuasively
      indicated by the procedure it devised for the careful
      administrative and judicial consideration of a handler's
      grievance.

   Consumer suits would effectively nullify Congress' intent,
recognized by this Court in Ruzicka (329 U.S. at 293-294 & n.3), to
"establish an equitable and expeditious procedure for testing the
validity of orders, without hampering the Government's power to
enforce compliance with their terms." S. Rep. No. 1011, supra, at 14.
Consumer litigants could seek injunctions against the operation of
market orders that Congress intended to remain in effect pending the
completion of full administrative and judicial proceedings brought by
handlers.  Such a result cannot be squared with Ruzicka, or with the
limitations on judicial review at the behest of handlers contained in
7 U.S.C. 608c(15) (B).

   b. The court of appeals clearly erred in its disregard for the
statutory scheme and in its insistence (App. A, infra, 27a n.75) on
express statutory language foreclosing actions by ultimate consumers.
This Court has already held that preclusion of review may be implied
as well as expressed.  "A clear command of the statute will preclude
review;  and such a command of the statute may be inferred from its
purpose." Barlow v. Collins, supra, 397 U.S. at 166-167;  accord,
Morris v. Gressette, 432 U.S. 491, 501 (1977).  Moreover, the
stringent standards normally required to demonstrate congressional
intent to preclude review are less appropriate when the issue is not
whether judicial review is entirely foreclosed but instead whether
review at the behest of the particular plaintiff is precluded.  See,
e.g., United States v. Ruzicka, supra, 329 U.S. at 293-294;  see also
Associated General Contractors of California, Inc. v. California State
Council of Carpenters, No. 81-334 (Feb. 22, 1983), slip op. 23;
Morris v. Gressette, supra, 432 U.S. at 505-507 & n.21;  Illinois
Brick Co. v. Illinois, 431 U.S. 720, 746 (1977);  Barlow v. Collins,
supra, 397 U.S. at 175 n.9 (Brennan, J., concurring and dissenting);
Switchmen's Union of North America v. National Mediation Board, 320
U.S. 297, 300 (1943).

   It is thus extremely significant in this case that the Act does
grant handlers an express right to judicial review.  Handlers serve as
spokespersons for interests shared with the general public, /9/ and
granting an exclusive right of review to handlers strikes the
necessary balance between the need for stability in the functioning of
the program and the importance of providing a forum for the redress of
grievances.  See page 18, supra.  Adding consumers to the category of
persons entitled to sue, when, as the Ninth Circuit found, Congress
did not overlook consumers but instead necessarily intended to exclude
them (Rasmussen v. Hardin, supra, 461 F.2d at 599), quite clearly
upsets this balance.  Under these circumstances, the majority erred in
requiring more explicit evidence of congressional intent to preclude
review.

   c. Although the court of appeals relied (App. A, infra, 27a n.75)
on this Court's decision in Stark v. Wickard, 321 U.S. 288 (1944),
that case is plainly distinguishable.  There milk producers challenged
certain deductions that were made from the so-called "producers
settlement fund" established in connection with a milk market order.
In granting standing to the producers, even though Congress failed to
give them an administrative remedy or the right to judicial review,
the Court pointed out that they had a proprietary interest in the
fund, and that it "is because every dollar of reduction comes from the
producer that he may challenge the use of the fund" (321 U.S. at 308).
 The Court also noted that the statute gives producers "definite
personal rights," rights that are "not possessed by the people
generally" (id. at 304, 309).  Clearly, the proprietary interest
asserted in Stark could not be adequately represented by some other
party.  By contrast, as already noted (see page 19 note 9, supra), and
as Judge Scalia pointed out in dissent (App. A, infra, 38a-40a), the
consumer interests in this case are merely derivative of, and
protected by, the more specific interests of handlers.  /10/

   2. Assuming arguendo that Congress did not preclude all consumer
suits under the AMAA, nevertheless the court of appeals erred in
concluding that the consumer respondents in this case have standing to
maintain their challenge to the market order provisions at issue.  The
various elements of the standing doctrine were thoroughly set forth in
Valley Force Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464 (1982).  There the Court held
that "at an irreducible minimum, Art. III requires the party who
invokes the court's authority to 'show that he personally has suffered
some actual or threatened injury as a result of the putatively illegal
conduct of the defendant,' Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 99 (1979), and that the injury 'fairly can be traced to
the challenged action' and 'is likely to be redressed by a favorable
decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,
38, 41 (1976)." Valley Forge, supra, 454 U.S. at 472 (footnote
omitted).  In addition, the Court has adhered to a number of
prudential considerations bearing on the question of standing.  Thus,
"the Court has refrained from adjudicating 'abstract questions of wide
public significance' which amount to 'generalized grievances,'
pervasively shared and most appropriately addressed in the
representative branches." Id. at 475, quoting Warth v. Seldin, 422
U.S. 490, 499-500 (1975).  And "the Court has required that the
plaintiff's complaint fall within 'the zone of interests to be
protected or regulated by the statute or constitutional guarantee in
question.'" Valley Forge, supra, 454 U.S. at 475, quoting Association
of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150,
153 (1970).  The consumer respondents failed to satisfy a number of
these requirements.

   Respondents alleged two injuries in their complaint.  First, they
claimed that the market orders deprive them of a nutritious, low-cost
substitute for regular fluid milk.  Second, they claimed that, by
making reconstituted fluid milk uneconomical for handlers to produce,
the orders deprive consumers of a "stabilizing market influence" that
could operate to offset seasonal fluctuations in the supply of regular
fluid milk.  /11/ Respondents' first asserted injury lies outside the
zone of interests arguably protected by the AMAA, while the second
asserted injury fails to satisfy the constitutional requirement of
injury in fact.  Moreover, the complaint as a whole fails to satisfy
the Article III requirement of redressability and the prudential
prohibition against the litigation of generalized grievances.

   a. Respondents' allegation that the market order provisions at
issue deprive them of a low-cost substitute for regular fluid milk
fails to satisfy the zone of interests requirement.  The primary
purpose of the AMAA is to protect dairy farmers;  /12/ the express
purpose of the market order provision (7 U.S.C. 608c) is "to raise
producer prices." S. Rep. No. 1011, supra, at 3 (emphasis added).
Thus, as the Ninth Circuit noted in Rasmussen v. Hardin, supra, 461
F.2d at 599, consumers' interests in lower prices not only are not
within the scope of Congress' concern, but are actually contrary to
the legislative design.

   The court below totally disregarded Congress' purpose in enacting
the AMAA when it held that consumers' interests in lower prices for
reconstituted fluid milk fall within the Act's zone of interests.  The
court of appeals' error was twofold -- first, it relied on isolated
statutory references to consumers that, when analyzed, do not support
the court's conclusion, and, second, it eschewed any resort to the
legislative history to elucidate the statute's meaning.

   The court of appeals' conclusion on the zone of interests issue
rested on policy sections of the AMAA that merely reference consumers.
 For example, 7 U.S.C. 602(2) provides that it is the policy of
Congress:

      (t)o protect the interest of the consumer by (a) approaching the
      level of prices which it is declared to be the policy of
      Congress to establish in subsection (1) of this section by
      gradual correction of the current level at as rapid a rate as
      the Secretary of Agriculture deems to be in the public interest
      and feasible in view of the current consumptive demand in
      domestic and foreign markets, and (b) authorizing no action
      under this chapter which has for its purpose the maintenance of
      prices to farmers above the level which it is declared to be the
      policy of Congress to establish in subsection (1) of this
      section.

   It is difficult to understand how this section's reference to
consumers supports the result reached by the court of appeals.  In the
quoted section, Congress acted to protect the interest of consumers
only to the extent that that interest was consistent with the pricing
policy for farmers established in 7 U.S.C. 602(1).  That section's
declared policy is to establish parity prices for farmers.  As the
court of appeals itself noted, 7 U.S.C. 602(2) "expresses Congress'
intent to protect consumers against unwarrantably rapid or excessive
price increases by limiting the Secretary's authority to fix prices at
parity and no higher" (App. A, infra, 20a;  emphasis added;  footnote
omitted).  Clearly, that legislative intent to ensure price stability
has nothing to do with consumers' asserted interest in lowering prices
for reconstituted fluid milk.  /13/

   The court of appeals also relied on 7 U.S.C. 602 (4), which
expresses a policy of protecting producers and consumers against
"unreasonable fluctuations in supplies and prices." See App. A, infra,
22-23a.  Again, this section does not support the interest in lower
prices asserted by the consumer respondents.  Moreover, the consumers
have never alleged that the challenged market order provisions subject
them to unreasonable fluctuations in prices.  Equally important, as
pointed out by the district court, Section 602(4) was enacted in 1954
as an amendment to the AMAA, in response to totally different problems
from those addressed by Congress in 1937 (App. G, infra, 62a-63a;
emphasis added):

      The 1954 amendments were enacted to counter the falling farm
      prices caused by the surplus of commodities after the Korean
      Conflict.  H.R. Rep. No. 1927, 83rd Cong., 2d Sess., reprinted
      in (1954) U.S. Code Cong. & Ad. News 3399, 3401.  The amendments
      dealt primarily with price supports and parity pricing.  Id. at
      3399-3400. * * *

         Nowhere in the House Report is the interest of consumers
      mentioned in relation to Orders regulating commodities.  Indeed,
      the Orders are not even a significant part of the 1954 Act.  The
      comments on consumers in the legislative history seem primarily
      aimed at dispelling the misconception that the flexible
      price-support program embodied in the bill would materially
      lower consumer prices.  See House Report, supra, at 3404.

   Therefore, the statute's mere mention of consumers is insufficient
to bring the consumer respondents in this case within the zone of
interests to be protected by the AMAA.  Careful analysis of the
statutory purposes, erroneously eschewed by the court of appeals,
reveals that lower prices for consumer products was simply not an
interest that Congress acted to protect.

   Finally, the court of appeals clearly erred in disregarding the
statute's legislative history (App. A, infra, 21a-23a).  As this Court
has recognized, "'there certainly can be no "rule of law" which
forbids (reference to legislative history), however clear the words
may appear on "superficial examination."'" Train v. Colorado Public
Interest Research Group, Inc., 426 U.S. 1, 10 (1976), quoting United
States v. American Trucking Associations, Inc., 310 U.S. 534, 543-544
(1940).  Here, "superficial examination" of the statute does indeed
show that "consumers" are mentioned in the Act;  but closer analysis
of the structure of the statute and examination of the legislative
history demonstrate that the interests asserted by the consumers in
this litigation were never within the contemplation of Congress.  The
court of appeals' contrary conclusion, based only on the fact that the
statutory text mentions "consumers," should be corrected.

   b. The court of appeals also erred in concluding that the consumer
respondents satisfactorily established their standing to maintain this
suit through their allegation that the market order provisions at
issue "deprive producers and consumers of a stabilizing market
influence" (C.A. App. 26).  Ensuring stable market conditions is an
express purpose of the statute (see 7 U.S.C. 602(4)), and thus
respondents' asserted injury is arguably within the Act's zone of
interests.  /14/ The problem here, however, is that respondents
essentially did no more than parrot the language of the statute.  Even
then, their allegation of injury was entirely speculative and
hypothetical;  they asserted that "(a) reconstituted fluid product
could quickly expand the fluid milk supply * * *" (C.A. App. 26;
emphasis added).  Plainly, this is insufficient to demonstrate the
constitutionally-required injury in fact.  Respondents did not allege
that they (or, for that matter, any other consumers) have ever been or
are likely to be subjected to seasonal shortages in milk supply.  This
is a fatal defect.  See Warth v. Seldin, supra, 422 U.S. at 498-499,
504.

   Moreover, any allegation that the consumer respondents have in fact
suffered or are likely to suffer from seasonal shortages would be
untenable.  There are indeed seasonal fluctuations in the production
of milk, but a number of regulatory mechanisms operate to prevent
those fluctuations from affecting ultimate consumers.  /15/ Under
these circumstances, respondents were required to come forward with
facts supporting their claimed injury.  They utterly failed to do so
with respect to their market stabilization claim, and that claim must
therefore be disregarded.  See Warth v. Seldin, supra, 422 U.S. at
501-502.

   c. While recognizing that the interests asserted by the consumer
respondents in this case are widely shared (App. A, infra, 25a), the
court of appeals concluded that dismissal of the suit on "generalized
grievance" grounds would mean that consumer suits would never be
justiciable (ibid.).  In the context of this case, the court was
clearly wrong.  As stressed by Judge Scalia in dissent (id. at
38a-40a), consumer interests in milk market orders are entirely
derivative of handlers' interests and can be fully protected by
handlers' suits (brought after proper exhaustion of administrative
remedies).  Moreover, Congress, when it chooses, can and does overcome
prudential limitations on standing such as the generalized grievance
doctrine by extending standing to any person adversely affected or
aggrieved by the challenged action.  See, e.g., Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 100 (1979).  As we have already
demonstrated, however, Congress has not chosen to do so in the AMAA.
On the contrary, granting standing to consumers whose interests are
indirect and shared in common with nearly every household in the
nation undermines the statutory scheme enacted by Congress and
threatens to disrupt a massive program that has stability as a primary
goal.  See, e.g., 7 U.S.C. 601.  Such a dramatic change in a
regulatory program of nearly 50 years' duration is "most appropriately
addressed in the representative branches." Valley Forge, supra, 454
U.S. at 475.

   d. Finally, respondents failed to show that the interests they seek
to advance are redressable by a favorable judicial decision in this
action.  Congress has recognized that retail prices paid by consumers
are largely independent of the wholesale prices paid to farmers.  H.R.
Rep. No. 1927, 83d Cong., 2d Sess. 7, 9 (1954).  Thus, it is entirely
speculative and beyond the control of the Secretary whether changes in
the market orders would bring about the lower retail prices that the
consumer respondents seek.  As the district court explained (App. G,
infra, 61a):

         There are too many variables which would have an effect on
      consumer prices if the Market Orders were changed.  These
      variables include:  whether handlers pass the cost savings on to
      consumers;  whether the change causes a substantial market
      dislocation, leading to higher overall milk prices;  whether
      increased demand for milk powder will increase its price;
      whether handlers would dry milk merely to evade the regulations.
       This situation is, as the Preliminary Impact Statement, 45 Fed.
      Reg. 75,956 (1980), indicates, extremely complex, and any
      benefit to the plaintiffs from the proposed changes in the
      regulations is hypothetical and speculative.

   The court of appeals disagreed with these observations based solely
on the Department of Agriculture's preliminary impact analysis, 45
Fed. Reg. 75956 (1980), which the court read as showing that the
immediate (i.e., within three years) impact of adopting respondents'
proposal would be to save consumers nationwide $186 million annually
(App. A, infra, 17a).  But the court misunderstood the impact
analysis.  In fact, the analysis offers no evidence regarding the
likely behavior of the many nonregulated parties intervening between
producers and ultimate consumers, whose actions necessarily determine
the redressability of respondents' grievance.  Rather, for purposes of
studying respondents' proposal, the impact analysis assumed that all
factors would operate to consumers' benefit because it was impossible
to measure those factors (see 45 Fed. Reg. 75960, 75963 (1980)).
Thus, the assumption that a change in the market orders would benefit
consumers remains entirely speculative and cannot satisfy the Article
III requirement of redressability.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   SUSAN SLEATER

      Attorneys

   SEPTEMBER 1983

   /1/ The government's petition for rehearing was denied on March 28,
1983 (App. C, infra, 47a).  The time for filing a petition for a writ
of certiorari did not begin to run, however, until the court of
appeals denied the petition for rehearing filed by the
intervenor-appellees.  See Rule 20.4 of the Rules of this Court.

   /2/ Fluid milk must be consumed relatively quickly after it is
produced because it is a naturally fertile field for the growth of
bacteria.  If it cannot be marketed quickly in fluid form, it must be
manufactured into cheese, butter, powder, or other milk products that
can be stored for longer periods.  Milk that cannot be disposed of in
fluid form is referred to in the trade as "surplus," and it commands a
lower price than fluid milk because it is manufactured into products
that compete directly with similar products from across the nation.
See App. A. infra, 3a.

   /3/ Some market orders contain a three-class pricing system.  For
all practical purposes, however, this case concerns only the
difference between Class I and Class II prices (see App. A, infra, 3a
n.7).

   /4/ In part, this pricing system is accomplished through a series
of assumptions and adjustments known as "down allocations" and
"compensatory payments" (see 45 Fed. Reg. 75956-75957 (1980);  App. A.
infra, 4a-5a).  The operattonal details of the pricing system are not
relevant to the issues raised at this threshold stage of the
litigation.

   /5/ As used in this petition, "respondents" refers to the
plaintiffs in the district court and does not include the
intervenor-defendants who are respondents in this Court by virtue of
Rule 19.6 of the Rules of this Court.

   /6/ Prior to filing suit, respondents had petitioned the Secretary
to hold a rulemaking hearing on the same proposal (see 44 Fed. Reg.
65990 (1979)).  The Secretary published a Notice of Request for
Hearing and asked for comments (ibid.).  Subsequently, the Secretary
published a preliminary impact analysis of respondents' proposal and
invited comments (45 Fed. Reg. 75956 (1980)).  Respondents filed this
action shortly thereafter.  Later, on April 7, 1981, the Secretary
determined not to hold a rulemaking hearing because respondents'
proposal would not further the purposes of the Act and could harm the
dairy industry (C.A. App. 170).  As a result of this action by the
Secretary, the court of appeals held that that portion of respondents'
complaint challenging the Secretary's "inaction" on their rulemaking
request (id. at 20) had become moot (App. A, infra, 32a n.93).  In its
present posture, the case is limited to respondents' right to
challenge the market orders on their merits.

   /7/ The complaint described the individual consumers as follows
(C.A. App. 21):

      Plaintiffs Harrell, Desmarais and Weinberg are consumers of
      fluid dairy products.  Due to inflation, they have become
      extremely cost-conscious and routinely seek to decrease food
      expenditures without sacrificing taste or the nutritional value
      of their diet.  The existing regulations have denied them the
      opportunity to purchase a lower priced reconstituted milk
      product in lieu of raw fluid milk.  If such lower priced milk
      were available they would purchase it.

   /8/ Respondents' petition for a rulemaking hearing (see pages 7-8
note 6, supra) is no substitute for the administrative procedures
mandated by the statute and available only to handlers.  As the court
of appeals noted (App. A, infra, 32a-33a;  emphasis in original), the
complaint in this case "challenge(s) the Secretary's authority to
adopt the compensatory payment regulation in the first place;  (the)
complaint did not attack his subsequent refusal to correct that
alleged wrong." Thus, the issues raised in the lawsuit were not
decided by the Secretary's denial of the petition for a rulemaking
hearing.  Moreover, as explained by Judge Scalia (id. at 41a-44a), the
administrative proceeding required by 7 U.S.C. 608c(15)(A) as a
prerequisite to judicial review is an entirely different type of
proceeding from the informal rulemaking hearing that respondents
sought.

   /9/ That consumer interests are truly deprivative of handler
interests -- consumers complain that they pay more because handlers
pay more -- is shown by the fact that handlers and consumers asserted
identical claims both in the instant case and in Rasmussen v. Hardin,
supra.  See App. A, infra, 39a-40a (Scalia, J., dissenting).

   /10/ It is also worth noting that the disruptive potential arising
out of a producer suit such as that authorized in Stark is far less
than the disruption likely to be caused by consumer suits of the type
sanctioned by the decision below.  Milk market orders only become and
remain effective with the agreement of a majority of the producers
(see page 6, supra), and thus producer suits challenging such orders
will be relatively infrequent.  Consumers, on the other hand, could
conceivably assert an "interest" in challenging every market order
because, by legislative design, they would have played no formal role
in devising the orders.

   /11/ Specifically, respondents described their alleged injuries as
follows (C.A. App. 25-26):

         28. The economic barriers to marketing reconstituted milk
      created by the existing Orders deprive plaintiffs Weinberg,
      Harrel, and Desmarais and other consumers of access to a
      nutritious dairy beverage at a lower price than fresh drinking
      milk.

                     *     *     *     *     *

         31. The existing Orders deprive producers and consumers of a
      stabilizing market influence.  A reconstituted fluid product
      could quickly expand the fluid milk supply when seasonable
      changes result in a reduction of the whole fluid milk supply.
      Tight fluid markets and rising fluid prices could be avoided and
      the size of the reserve fresh whole Grade A milk needed to
      provide the fluid market could be reduced if such adjustments
      were possible.

   /12/ Confirmation of Congress' solicitude for farmers is apparent
from the Act's requirement that at least two-thirds of the dairy
farmers in an affected region must approve a proposed market order
before it may take effect (7 U.S.C. 608c(8)).  This requirement
operates even in the face of opposition from affected handlers if
"such order is the only practical means of advancing the interests of
the producers" (7 U.S.C. 608c(9)(B)).  Moreover, if producers become
dissatisfied with an order they, unlike handlers, may require the
Secretary to terminate it (7 U.S.C. 608c(16)(B)).

   /13/ The Department of Agriculture advises us that throughout the
entire history of the AMAA, the blend prices paid to producers under
the market orders have rarely, if ever, reached parity.  For at least
the last several years, the blend prices paid under all orders have
been below parity.  Thus, even the limited protection that Congress
may have intended for consumers is not implicated by the realities of
the regulatory program.

   /14/ The legislative history indicates, however, that, as with
prices, Congress' intention to promote market stability was meant to
protect farmers rather than consumers.  See H.R. Rep. No. 1241, 74th
Cong., 1st Sess. 10 (1935) (emphasis added) ("In order to eliminate,
so far as possible, violent seasonal fluctuations in the available
milk supply with their attendant disturbing effect upon returns to
producers, and to encourage a uniform volume of production throughout
the year, an adjustment in payments to producers" may be made.).  See
also Suntex Dairy v. Bergland, supra, 591 F.2d at 1064-1065 (emphasis
added) ("The blend price mechanism established by a milk marketing
order acts as a stabilizing influence that insulates farmers from the
buffeting of prices that would otherwise accompany differences in
consumer demand.").

   /15/ Many market orders establish a "base" system for allocating
payments from handlers to producers.  See 7 U.S.C. 608c(5)(B);  H.R.
Rep. No. 1241, 74th Cong., 1st Sess. 9-10 (1935).  Adjustments to the
base system may authorize higher payments for milk produced during
seasonal low periods and thus provide incentives to counteract
fluctuating production levels.  Id. at 10.  Second, the price paid to
rural producers may include a premium to provide them with an
incentive to ship their milk to city markets whenever necessary.  Id.
at 9-10.  Third, the price support system, an entirely separate system
regulating milk production (see 7 U.S.C. 1421-1449), keeps the supply
of milk high year round because it ensures a market for datry products
even in the months when flush production outstrips consumer demand.
In fact, since the fall of 1979, there has been a dramatic increase in
milk production without a concomitant increase in demand.  See South
Carolina v. Block, Nos. 83-1426 and 83-1511 (4th Cir. Sept. 9, 1983),
slip op. 6;  48 Fed. Reg. 34943 (1983).  During fiscal year 1982, the
government purchased nearly $845 million in surplus milk products
under the price support system.  As a result of these various factors,
there is no experience within general knowledge or subject to judicial
notice of a shortage of milk at the consumer level.

   Appendix Omitted