Gary Johnson v. Commission on Presidential De

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2017 Decided August 29, 2017

No. 16-7107

GARY E. JOHNSON, ET AL.,

APPELLANTS

v.

COMMISSION ON PRESIDENTIAL DEBATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01580)

Bruce E. Fein argued the cause for appellants. With him

on the briefs were W. Bruce DelValle.

Lewis K. Loss argued the cause for appellees. With him on

the brief were Uzoma N. Nkwonta, Robert F. Bauer, Marc E.

Elias, Elisabeth C. Frost, Charles H. Bell Jr., John R.

Phillippe, Jr., and William D. Coglianese. Michael S. Steinberg

entered an appearance.

Before: BROWN and PILLARD, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

2

Opinion concurring in Part I and concurring in the

judgment filed by Circuit Judge PILLARD.

BROWN, Circuit Judge: Every four years, we suffer

through the celebration of democracy (and national nightmare)

that is a presidential election. And, in the end, one person is

selected to occupy our nation’s highest office. But in every

hard-fought presidential election there are losers. And, with

quadrennial regularity, those losers turn to the courts. See, e.g.,

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996); Fulani v. Brady,

935 F.2d 1324 (D.C. Cir. 1991); Johnson v. FCC, 829 F.2d 157

(D.C. Cir. 1987). Today’s challenge concerns 2012 third-party

candidates Gary Johnson and Jill Stein. Their Complaint

presents novel claims under antitrust law and familiar First

Amendment allegations. The district court dismissed the

Complaint, finding Plaintiffs lacked Article III standing,

antitrust standing, and in the alternative, failed to state a claim

for which relief could be granted. See Johnson v. Comm’n on

Presidential Debates, 202 F. Supp. 3d 159 (D.D.C. 2016). For

the reasons set forth below, we affirm.

I.

Gary Johnson and James Gray ran as the Libertarian

Party’s presidential and vice presidential candidates in the 2012

elections, while Jill Stein and her running mate Cheri Honkala

ran on the Green Party ticket. Both slates qualified on a

sufficient number of state ballots to have a mathematical

chance of an Electoral College victory. Each was nonetheless

excluded from the nationally televised general-election

debates.

They claim that they were excluded pursuant to an

agreement between the Obama for America and Romney for

President campaigns. They allege the parties’ agreement,

reflected in a memorandum of understanding (“MOU”),

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stipulated to three presidential debates and one vice

presidential debate, and designated dates, locations,

moderators, and topics. Those would be the only four debates

between the major-party candidates, “except as agreed to by

the parties” to the MOU. JA 63. The MOU provided that the

Commission on Presidential Debates (“Commission”), a

nonprofit organization, would host the debates subject to its

willingness to “employ the provisions” of the MOU. JA 64.

Any candidate, other than the signatories, would be invited

to participate in the debates only if he or she satisfied certain

selection criteria set forth in the MOU. First, the candidate had

to be constitutionally eligible to be president. Second, he or

she must have qualified to appear on “enough state ballots to

have at least a mathematical chance of securing an Electoral

College majority in the 2012 general election.” Compl. ¶ 74,

JA 45–46. And, third, the candidate had to have achieved a

“level of support of at least 15% (fifteen percent) of the national

electorate as determined by” averaging the most recent results

of “five selected national public opinion polling

organizations.” Id. ¶ 74, JA 46. Johnson and Stein met the first

two criteria, but they fell short of the 15 per cent polled-support

threshold.

The third-party candidates, their running mates, their

campaigns, and the parties they represented in the 2012

election (collectively, “Plaintiffs” for purposes of this opinion)

brought suit, challenging the MOU as an unlawful agreement

to monopolize and restrain competition in violation of sections

1 and 2 of the Sherman Act. 15 U.S.C. §§ 1–2. The Complaint

alleges a conspiracy with the overall objective to:

entrench[] market power in the presidential debates

market, the presidential campaign market, and the

electoral politics market of the two major political

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parties by exercising duopoly control over

presidential and vice presidential debates in general

election campaigns for the presidency.

Compl. ¶ 1, JA 15. The Complaint also alleges exclusion of

Plaintiffs from the debates “because of hostility towards their

political viewpoints” in violation of their First Amendment

rights to free speech and association. Id. On appeal, Plaintiffs

have abandoned their further claim of intentional interference

with prospective economic advantage and relations.

Plaintiffs allege they were injured “in their businesses of

debating in presidential elections, participating in presidential

election campaigns, and engaging in electoral politics.” Id.

¶ 90, JA 49. They claim to have lost millions of dollars’ worth

of publicity, campaign contributions, and matching funds that

ordinarily would follow participation in the debates, as well as

the salaries they would have earned as President and Vice

President if they had won. Id. ¶ 90, JA 49–50. They sought

invalidation of the 15 per cent polled-support requirement,

injunctive relief dissolving the Commission and enjoining

further collusion between the two major parties, and treble

damages under section 4 of the Clayton Act, 15 U.S.C. § 15.

They named as defendants the Commission and one of its

founders, Frank J. Fahrenkopf, Jr.; Michael D. McCurry, a

Commission co-chair; the Republican and Democratic

National Committees; and 2012 presidential candidates Barack

Obama and Willard Mitt Romney. Compl. ¶ 24–30, JA 23–26.

Defendants’ interests on appeal are represented primarily by

counsel for the Commission.

The district court dismissed the case under Federal Rules

of Civil Procedure 12(b)(1) and (6). It held that Plaintiffs

lacked Article III standing to litigate their Sherman Act claims

because they were based on “wholly speculative” injuries

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“dependent entirely on media coverage decisions” by

nonparties. Johnson, 202 F. Supp. 3d at 169. The court also

found the alleged harm—lack of media coverage that led to low

popularity—preceded their exclusion from the debates. See id.

Plaintiffs had thus failed to allege injury in fact that was either

traceable to the Commission or redressable in this case. We

review the district court’s dismissal de novo, taking the facts

alleged in the Complaint as true and drawing all reasonable

inferences in Johnson and Stein’s favor. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–56 (2007); Andrx Pharm., Inc. v.

Biovail Corp. Int’l, 256 F.3d 799, 805 (D.C. Cir. 2001).

II.

We begin with Plaintiffs’ antitrust claims, asking first

whether Plaintiffs may properly proceed before this Court on

these allegations. “Federal courts are not courts of general

jurisdiction; they have only the power that is authorized by

Article III of the Constitution and the statutes enacted by

Congress pursuant thereto.” Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986). Accordingly, the Court must

assess Plaintiffs’ standing based on “the specific common-law,

statutory or constitutional claims that [they] present[].” Int’l

Primate Prot. League v. Administrator of Tulane Educ. Fund,

500 U.S. 72, 77 (1991).

The “irreducible constitutional minimum of [Article III]

standing” requires that a plaintiff demonstrate three elements:

(1) injury in fact; (2) causation; and (3) redressability. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “The party

invoking federal jurisdiction bears the burden of establishing

these elements.” Id. at 561. But here we also discuss a second

type of “standing” doctrine: antitrust (i.e. statutory) standing.

While Article III standing is a familiar concept common to all

cases, antitrust standing is claim-specific. It asks “whether the

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plaintiff is a proper party to bring a private antitrust action.”

Associated Gen. Contractor of Cal., Inc. v. Cal. State Council

of Carpenters, 459 U.S. 519, 535 n.31 (1983) (citing Daniel

Berger & Roger Bernstein, An Analytical Framework for

Antitrust Standing, 86 YALE L.J. 809, 813 n.11 (1977); Earl E.

Pollock, Standing to Sue, Remoteness of Injury, and the

Passing-On Doctrine, 32 ANTITRUST L.J. 5, 6–7 (1966)). We

will discuss each in turn.

A.

Plaintiffs’ injuries are clearly pleaded in the Complaint;

they allege their exclusion from the debates caused them to lose

access to television audiences and resulting campaign

contributions worth hundreds of millions of dollars. This

injury—though shared with many individuals who may have

wished to campaign for the presidency but did not join Mitt

Romney and Barack Obama on the debate stage—is

nonetheless particularized. See FEC v. Akins, 524 U.S. 11, 23–

25 (1998); see also Akins v. FEC, 101 F.3d 731, 736 (D.C. Cir.

1996) (en banc). 1 Each excluded individual was uniquely

1

Plaintiffs have adopted a litigation strategy attributing their

exclusion to the fifteen percent requirement—presumably reducing

the number of similarly-situated persons to those who had obtained

a mathematical possibility of victory in the electoral college. But see

Philip Bump, So You Want an Independent Candidate for President?

You’re Running Out of Time., WASH. POST (May 5, 2016),

https://tinyurl.com/Bump-Article (“To collect [the requisite]

signatures [to achieve a mathematical possibility of winning the

electoral college], you need one of two things: a lot of organization

or a lot of money. . . . [The cost] varies by state, but if we look at

the upper end of that [price] range, we’re talking about a $5.5 million

investment to get on the ballot in all 50 states.”). Of course,

counsel’s particular litigation strategy—the way they choose to

characterize the effect of the alleged injury—hardly controls our

analysis on this point.

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rejected from the debates, and security would no doubt have

stopped them each individually had they attempted to take the

stage.

Things become far more complicated, however, when we

consider whether “a favorable decision” of this Court may

“redress[]” Plaintiffs’ injury. Lujan, 504 U.S. at 561.

Plaintiffs’ requested relief—whether stated in the form of a

request for injunctive relief or damages—amounts to a request

for a declaratory judgment stating the Commission is not

entitled to exclude particular individuals from its debates. On

this point, we must agree with this Court’s opinion in Perot v.

Federal Election Commission: “[I]f this [C]ourt were to enjoin

the [Commission] from staging the debates or from choosing

debate participants, there would be a substantial argument that

the [C]ourt would itself violate the [Commission’s] First

Amendment rights.” 97 F.3d at 559.

Acknowledging this shortcoming hardly determines the

merits of Plaintiffs’ claims, Concurring Op. 3; it assumes them

and reflects on the permissibility of the resulting remedy. The

district court’s opinion put all parties on notice of the

redressability problem. See Johnson, 202 F. Supp. 3d at 172–

73 (citing Perot, 97 F.3d at 559; Sistrunk v. City of Strongsville,

99 F.3d 194, 199–200 (6th Cir. 1996)). Yet Plaintiffs failed to

address the point. In so doing, they leave us with, at least, grave

doubt as to the constitutionality of any order issued by this

Court aimed to redress Plaintiffs’ injury.

B.

i.

In such circumstances, and where a statutory jurisdiction

could determine the result, the doctrine of constitutional

avoidance permits us to resolve this case on alternative

8

grounds, namely antitrust standing. See 13B CHARLES A.

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3531.15, p.338 (3d ed. 2014) (“If

both constitutional and prudential objections are raised to

standing . . . it is entirely appropriate to deny standing on

prudential grounds if that course is easier, or more clearly right,

than to rule on constitutional grounds first.”); see also Kowalski

v. Tesmer, 543 U.S. 125, 129 & n.2 (2004) (assuming plaintiffs

satisfied Article III standing and deciding the case on

prudential third-party standing grounds).

This Court has acknowledged its “jurisdiction does not

turn on antitrust standing.” In re Lorazepam & Clorazepate

Antitrust Litig., 289 F.3d 98, 107–08 (D.C. Cir. 2002) (citing

Associated Gen. Contractors of California, Inc., 459 U.S. at

535 n.31 (“[T]he focus of the doctrine of ‘antitrust standing’ is

somewhat different from that of standing as a constitutional

doctrine.”)). The concurrence, therefore, suggests we cannot

“sidestep” the Article III standing inquiry to resolve this case

on antitrust standing grounds. Concurring Op. 1. But

proceeding directly to clearly-dispositive, non-jurisdictional,

prudential standing analysis is a permissible—even

preferable—course in rare cases where jurisdictional, Article

III standing inquiry yields grave constitutional doubt. See, e.g.,

Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918,

921 n.2 (D.C. Cir. 1989) (“The dissent suggests that our

analysis of standing must proceed from constitutional to

prudential requirements. Although that is the oft-stated

sequence, the rule of avoidance counsels nonetheless that,

where the prudential question is clearly dispositive, we should

not reach out to determine the constitutional issue.”

(citing Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1194 (D.C.

Cir. 1987); Calumet Indust., Inc. v. Brock, 807 F.2d 225, 228

(D.C. Cir. 1986); Pub. Citizen v. Lockheed Aircraft Corp., 565

F.2d 708, 714 (D.C. Cir. 1977)); see also Steel Co. v. Citizens

9

for a Better Env’t, 523 U.S. 83, 97 n.2 (1998) (accepting the

proposition that “a statutory standing question can be given

priority over an Article III question”). This more flexible

approach is especially important in cases like this one, where

“constitutional and antitrust standing overlap”—cases “where

the plaintiff has not shown any injury caused by the antitrust

violation.” IIA PHILIP E. AREEDA, ET AL., ANTITRUST LAW

¶ 335a, p. 77 n.7 (4th ed. 2014).

ii.

As relevant here, antitrust standing requires a plaintiff to

show an actual or threatened injury “of the type the antitrust

laws were intended to prevent” that was caused by the

defendant’s alleged wrongdoing. Andrx Pharm., Inc., 256 F.3d

at 812; see also Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S.

104, 109–13 (1986) (discussing antitrust standing and the

necessity of “antitrust injury” in suits under the Clayton Act).

To understand the scope of antitrust standing, we focus on

the bedrock principle of this field: antitrust laws protect market

(i.e. economic) competition. Brunswick Corp. v. Pueblo Bowl-

O-Mat, Inc., 429 U.S. 477, 488 (1977). Plaintiffs, however,

define their injuries as millions of dollars in free media,

campaign donations, and federal matching funds—injuries to

them as individual candidates in a political contest for votes.

Square peg, meet round hole.

As an initial matter, this Court has clearly held injury to a

single competitor does not suffice to constitute an injury to

competition. See Dial A Car, Inc. v. Transp., Inc., 82 F.3d 484,

486–87 (D.C. Cir. 1996). Further, and most important, “neither

the business of conducting the government nor the holding of

a political office constitutes ‘trade or commerce’ within the

meaning of the Sherman Act.” Sheppard v. Lee, 929 F.2d 496,

498 (9th Cir. 1991). This conclusion—that an antitrust

10

violation must involve injury to commercial competition—is

supported by Plaintiffs’ inability to define a commercial market

in which they operate. Instead, they discuss the “presidential

campaign market,” “the electoral politics market,” and the

“presidential candidates market,” Compl. ¶¶ 1, 11, JA 15, 18,

and identify their product as “information about themselves or

other presidential candidates,” Blue Br. 23. While these terms

may capture what political scientists call a “political

economy,” the phrase is merely a term of art. Short of alleging

Americans are engaged in a widespread practice of selling their

votes—which the Complaint does not do—the “market”

Plaintiffs identify is no more regulated by the antitrust laws

than the “marketplace of ideas” or a “meet market.”

The injuries Plaintiffs claim are simply not those

contemplated by the antitrust laws. Consequently, Plaintiffs’

antitrust claims fail to meet the requirements of antitrust

standing.

III.

Finally, we turn to Plaintiffs’ First Amendment claim.

Perhaps in an effort to tack around unfavorable case law, the

Complaint states the Commission’s debates “exert a de facto

influence on the outcome of presidential elections” such that

exclusion from the debate, “in light of proven political realities,

guaranteed [Plaintiffs] to lose.” Compl. ¶¶ 110–11, JA 54.

Plaintiffs therefore allege the fifteen percent polling criterion,

“selected by Defendants with the specific intent of suppressing

the viewpoints of third party or independent presidential

candidates and to boost the political speech of the two major

party nominees,” constitutes an “unreasonable burden on free

speech or political association in violation of the First

Amendment.” Compl. ¶¶ 119–20, JA 56; see also id. ¶ 130, JA

57 (alleging the fifteen percent requirement “imposes a burden

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on voting and associational rights in violation of the First

Amendment”); see generally Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666 (1998).

None of these allegations articulate a clear legal claim, let

alone identify a cognizable injury. To make matters worse, the

Complaint omits entirely any allegation of government action,

focusing entirely on the actions of the nonprofit Defendants.

See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 837–43 (1982)

(discussing the state action requirement).

In Steel Co. v. Citizens for a Better Environment, the

Supreme Court observed that, in some “extraordinary” cases,

federal courts may pretermit the jurisdictional threshold and

dismiss a claim that is “so insubstantial, implausible,

foreclosed by prior decisions of [the Supreme] Court, or

otherwise completely devoid of merit as not to involve a federal

controversy.” 523 U.S. at 89. The First Amendment claim

here fits the bill. Under these circumstances, it would be

improper—and indeed impossible—for the Court to conduct a

meaningful standing analysis. There may be First Amendment

injuries we could invent for Plaintiffs, but those claims were

not presented in the Complaint. See Warth v. Seldin, 422 U.S.

490, 509–10 (1975) (examining the face of the complaint to

determine whether a plaintiff has established Article III

standing).

IV.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

PILLARD, Circuit Judge, concurring in Part I and

concurring in the judgment:

I join Part I of the majority opinion. I write separately as

to Parts II and III because, although I entirely agree that both

the antitrust and First Amendment claims fail, we are a court of

limited jurisdiction obligated to decide the Article III standing

question before assessing the merits of the claims.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-42 (2006);

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528

U.S. 167, 180 (2000). Despite its misleading name, “statutory

standing” is not jurisdictional in the Article III sense, as the

Supreme Court made clear in Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1387 & n.4 (2014).

See also Associated General Contractors of Cal., Inc. v. Cal.

State Council of Carpenters, 459 U.S. 519, 528 & nn.17-18,

545-46 (1983) (dismissing case for lack of antitrust injury only

after assuming the complaint stated a valid antitrust claim). We

thus cannot sidestep the Article III standing inquiry and dismiss

instead on statutory “antitrust standing” grounds. “It is firmly

established in our cases that the absence of a valid (as opposed

to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power

to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 89 (1998). Because I would dismiss both claims

under Rule 12(b)(6) only after determining Article III standing,

I concur in the judgment.

The majority’s exertions to avoid addressing Article III

standing in the ordinary course are puzzling, given that

plaintiffs’ standing appears to be straightforward under the

classic injury-causation-redressability formulation. See Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The majority

does not dispute that the plaintiffs (“Johnson and Stein”)

identify concrete and particularized injury from having been

excluded from the 2012 presidential and vice-presidential

debates. Maj. Op. at 6 (acknowledging that Johnson and

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Stein’s “injuries are clearly pleaded in the Complaint” and are

“particularized”). The court stops short of holding that Johnson

and Stein’s injury is fairly traceable to the defendants’ actions,

however, see id. at 8 (suggesting they have “not shown any

injury caused by the antitrust violation”), and also denies that,

in the (admittedly unlikely) event that they were to succeed on

the merits of their claims, plaintiffs’ injuries would be

redressable.

Plaintiffs’ allegations satisfy the latter two standing

inquiries as readily as they do the first. Johnson and Stein

allege that the challenged 15 per cent polled-support

requirement was the direct cause of their injury. Had the MOU

not imposed that 15 per cent threshold, they would have

qualified to participate. See Compl. ¶ 83, J.A. 48. Those

allegations suffice at the pleading stage to state causation. See

Attias v. CareFirst, Inc., No. 16-7108, slip op. at 15 (D.C. Cir.

Aug. 1, 2017) (“Article III standing does not require that the

defendant be the most immediate cause, or even a proximate

cause, of the plaintiffs’ injuries; it requires only that those

injuries be ‘fairly traceable’ to the defendant.”). And the

redressability of Johnson and Stein’s alleged injury flows from

their theory of causation. If they were to prevail, the court

could award compensation for the injuries their exclusion

caused. See Sprint Commc’ns Co. v. APCC Servs., Inc., 554

U.S. 269, 286-87 (2008); see also Cardenas v. Smith, 733 F.2d

909, 914 (D.C. Cir. 1984) (“A damage claim, by definition,

presents a means to redress an injury.”); Renal Physicians

Ass’n v. U.S. Dep’t of Health and Human Servs., 489 F.3d

1267, 1276 (D.C. Cir. 2007) (“[A]t the pleading stage, a party

must make factual allegations showing that the relief it seeks

will be likely to redress its injury.”).

It is that last element of standing—redressability—that the

majority cannot swallow, as it anticipates that any court-

3

ordered relief would violate the Commission’s First

Amendment rights. Maj. Op. at 7. I assume the court is correct

on that point. See Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995);

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258

(1974). I disagree only with treating the merits of a First

Amendment defense not yet in issue as an obstacle to standing.

The majority cites a passing suggestion in Perot v. FEC that, if

the court were to enjoin presidential debates or the Commission

on Presidential Debates’ (CPD’s) choice of participants, “there

would be a substantial argument that the court would itself

violate the CPD’s First Amendment rights.” 97 F.3d 553, 559

(D.C. Cir. 1996). Again, I assume as much. But we did not

identify the First Amendment as an obstacle to standing in

Perot—nor, for example, did the Supreme Court in Hurley or

Tornillo.

A standing inquiry, especially at the motion-to-dismiss

stage, should not anticipate the merits—neither of the claim

nor, especially, of a potential defense. A conclusion that

appellants’ claims cannot be redressed because of a potential

First Amendment obstacle would be impermissibly “deciding

the merits under the guise of determining the plaintiff[s’]

standing.” Information Handling Servs., Inc. v. Defense

Automated Printing Servs., 338 F.3d 1024, 1030 (D.C. Cir.

2003); see Warth v. Seldin, 422 U.S. 490, 500 (1975)

(observing that “standing in no way depends on the merits of

the plaintiff’s contention that particular conduct is illegal”); In

re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (“In

reviewing the standing question, we must be ‘careful not to

decide the questions on the merits for or against the plaintiff,

and must therefore assume that on the merits the plaintiffs

would be successful in their claims.’”). Redressability, like any

other aspect of jurisdiction, “is not defeated . . . by the

possibility that the averments might fail to state a cause of

4

action on which petitioners could actually recover.” Bell v.

Hood, 327 U.S. 678, 682 (1946). The majority explains its

order of operations by invoking pre-Lexmark cases for

dismissal on statutory standing grounds “in rare cases where

[the] jurisdictional, Article III standing inquiry yields grave

constitutional doubt.” Maj. Op. at 8. But, as noted above, the

First Amendment concern is not even part of the Article III

standing inquiry; Johnson and Stein’s standing itself raises no

grave or doubtful constitutional question. I would therefore

hold that Plaintiffs have Article III standing to bring their

antitrust claims before I would dismiss them on their merits.

The majority dismisses the complaint on antitrust standing

grounds because plaintiffs do not allege injury to competition,

but rather identify harms to themselves that are “simply not

those contemplated by the antitrust laws.” Maj. Op. at 10. I

agree that the antitrust claim fatally fails to tie the major party

candidates’ alleged collusion to any anticompetitive harm to an

identified commercial market or market participant. The

complaint does not articulate a theory under which trade or

commerce has been restrained by the MOU. It therefore falls

outside the ambit of antitrust regulation, the aim of which is to

promote economic competition. See I PHILLIP E. AREEDA ET

AL., ANTITRUST LAW ¶ 100a at 3-4 (4th ed. 2014); cf. United

States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972)

(“Antitrust laws in general, and the Sherman Act in particular,

are the Magna Carta of free enterprise.”); N. Pac. Ry. Co. v.

United States, 356 U.S. 1, 4 (1958) (describing Sherman Act as

“comprehensive charter of economic liberty”).

The complaint refers to various “markets,” but the defining

competitive dynamic of the activities it so labels is political. It

alleges, for instance, collusion in the “presidential debates

market,” the “presidential campaign market,” the “electoral

politics market,” and the “presidential candidates market.”

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Compl. ¶¶ 1, 11, J.A. 15, 18. That flaw is not repaired by the

complaint’s allegations of various ways in which U.S.

presidential campaigns involve a lot of money. The televised

debates are expensive to stage, generate revenues for venues

and their host localities, and can boost the fundraising of

successful participants. See id. ¶¶ 35-41, J.A. 29-33. But “the

antitrust laws should not regulate political activities ‘simply

because those activities have a commercial impact.’” Allied

Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 507

(1988) (quoting Eastern R.R. Presidents Conf. v. Noerr Motor

Freight, Inc., 365 U.S. 127, 141 (1961)). Nor is antitrust

scrutiny triggered every time someone in an activity that

involves or affects commerce contends that others have agreed

to act in a way that fails equally to enhance the claimant’s

access to money. Not every joint business venture is an

antitrust violation. See Associated Press v. United States, 326

U.S. 1, 23 (1945) (Douglas, J., concurring). To be actionable,

an agreement must unduly restrain or monopolize trade or

commerce. See Standard Oil Co. v. United States, 221 U.S. 1,

59-62 (1911).

The majority and I agree that the complaint fails for want

of any connection between the major party candidates’ alleged

collusion in planning and restricting their joint debates and

anticompetitive harm to an identified commercial market. But

I disagree that the deficiency is only one of antitrust standing.

Because the claim would equally be deficient if the plaintiff

were the government, which need not prove statutory standing,

I would affirm the dismissal as a failure to state a cognizable

violation rather than as a statutory standing shortfall. See

AREEDA, ANTITRUST LAW ¶ 335f at 91.

Part III of the opinion, dismissing Johnson and Stein’s

First Amendment challenge to their exclusion, also puts the

merits cart before the Article III standing horse. I would

6

dismiss this claim, too, for failure to state a claim rather than

for want of standing. The constitutional allegations plainly fail

the established “state action” requirement. “It is fundamental

that the First Amendment prohibits governmental infringement

on the right of free speech.” Rendell-Baker v. Kohn, 457 U.S.

830, 837 (1982) (emphasis added). Moreover, a candidate

debate is a forum that, even if run by a public entity, could still

be nonpublic and impose reasonable, viewpoint-neutral access

restrictions without running afoul of the First Amendment. See

Arkansas Educ. Tel. Comm’n v. Forbes, 523 U.S. 666, 677-78

(1998).

Both of plaintiffs’ claims lack merit. Before so deciding,

however, we must determine whether plaintiffs have standing.

To do so, we must take the allegations of the complaint as true

and assume the validity of the plaintiffs’ legal theory. Mendoza

v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (citing Holistic

Candlers and Consumers Ass’n v. FDA, 664 F.3d 940, 943

(D.C. Cir. 2012)). Under those requisite assumptions (however

ultimately unavailing the claims might be), plaintiffs here have

standing to sue. I join Part I but, because this case presents no

reason to “pretermit the jurisdictional threshold,” Maj. Op. at

11, I concur only in the judgment.