Twin Rivers Paper Co. v. SEC. & Exch. Comm'n

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2019 Decided August 16, 2019

No. 18-1213

TWIN RIVERS PAPER COMPANY LLC, ET AL.,

PETITIONERS

v.

SECURITIES AND EXCHANGE COMMISSION,

RESPONDENT

On Petition for Review of an Order of

the Securities & Exchange Commission

Jane C. Luxton argued the cause and filed the briefs for

petitioners.

Alan W. Bakowski was on the brief for amici curiae Public

and Private Companies, Nonprofit Organizations, and Labor

Union in support of petitioners.

Tracey A. Hardin, Assistant General Counsel, Securities

and Exchange Commission, argued the cause for respondent.

With her on the brief were Michael A. Conley, Solicitor, and

Daniel E. Matro, Senior Counsel.

Eugene Scalia, Jacob T. Spencer, and Paul S. Stevens were

on the brief for amici curiae Investment Company Institute and

Independent Directors Council in support of respondent.

2

Before: HENDERSON, ROGERS, and KATSAS, Circuit

Judges.

KATSAS, Circuit Judge: In 2018, the Securities and

Exchange Commission adopted a rule allowing investment

companies to post shareholder reports online and mail paper

copies to shareholders upon request. The petitioners—a

consumer-advocacy organization and representatives of the

paper industry—argue that the SEC did not adequately

consider the interests of shareholders who prefer reports in

paper form. Because the consumer organization lacks

constitutional standing and the paper-industry representatives

assert interests beyond those protected or regulated by the

securities laws, we deny the petition for review.

I

The Securities and Exchange Commission requires

investment companies, such as mutual funds, to transmit

periodic shareholder reports to their investors. See, e.g., 17

C.F.R. § 270.30e-1. Previously, the SEC required the

companies to mail paper copies unless an investor affirmatively

selected electronic delivery. In 2018, the Commission adopted

Rule 30e-3, which allows companies to change their default

method of transmission. See Optional Internet Availability of

Investment Company Shareholder Reports, 83 Fed. Reg.

29,158 (June 22, 2018) (Shareholder Reports). The rule now

permits investment funds to post shareholder reports online and

notify investors of their availability. See 17 C.F.R. § 270.30e-

3(b)–(d). Investment companies must mail shareholder reports

only to investors who expressly request a paper copy. See id.

§ 270.30e-3(e).

3

The SEC gave two principal rationales for this change.

First, it projected that the rule would save investment funds

about $140 million annually. Shareholder Reports, 83 Fed.

Reg. at 29,187. It explained that because printing costs are paid

from fund assets, these savings ordinarily will be “passed along

to investors.” Id. at 29,183. Second, the Commission

concluded that “many investors would prefer enhanced

availability of fund information on the internet.” Id. at 29,165.

It explained that “an investor looking for a fund’s annual report

is most likely to seek it out on the fund’s website, rather than

request it by mail or phone.” Id. at 29,165 n.96. Moreover,

internet usage “has continued to increase rapidly” over the last

decade, including among “households owning mutual funds.”

Id. at 29,165 n.97. In short, the SEC expected the rule to match

shareholder preferences and save them money.

The Commission recognized that some investors may still

prefer paper delivery of shareholder reports. See, e.g.,

Shareholder Reports, 83 Fed. Reg. at 29,165–66. Several

features of Rule 30e-3 accommodate that preference. The rule

prescribes an extended transition period: investment

companies must continue to deliver paper copies of the reports

until at least January 1, 2021, and they must include with each

mailing a statement advising shareholders of the coming

change in the default mode of transmission. See 17 C.F.R.

§ 270.30e-3(i). Then, after making the switch, a fund must

mail a paper notice to all shareholders for each report that it

posts online. See id. § 270.30e-3(c). The notice must include

a toll-free telephone number that investors may call to request

a paper copy of the individual report or all future reports. See

id. § 270.30e-3(c)(1)(i)–(v). The notice also may specify other

ways to request paper reports, such as by e-mail or online. See

id. § 270.30e-3(c)(2). Finally, once an investor requests a

paper copy, the fund must mail the report within three business

days at no cost to the investor. Id. § 270.30e-3(e).

4

This case presents two sets of petitioners. Consumer

Action is a non-profit membership organization that represents

certain consumer interests. Twin Rivers Paper Company and

three industry organizations—which we call the Industry

Petitioners—represent the interests of the American paper

industry. Together, the petitioners argue that the SEC adopted

Rule 30e-3 in violation of three securities laws and the

Administrative Procedure Act. Among other grounds, they

contend that the Commission did not adequately protect

shareholders who prefer paper delivery.

II

We begin with the question whether Consumer Action has

constitutional standing to challenge Rule 30e-3. The

Constitution limits the “judicial Power of the United States” to

“Cases” or “Controversies,” U.S. Const. art. III, §§ 1–2, and

the requirement of standing is “rooted in the traditional

understanding of a case or controversy,” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016). To establish standing under

Article III, a party “must have (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Id.

Consumer Action claims standing on behalf of its

members. To establish representational standing, an

organization must prove, among other things, that its members

would “have standing to sue in their own right.” Hunt v. Wash.

State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). In

turn, this requires proof that at least one member suffered an

injury in fact—“an invasion of a legally protected interest

which is (a) concrete and particularized; and (b) actual or

imminent, not conjectural or hypothetical.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992) (cleaned up). “A ‘concrete’

5

injury must be ‘de facto’; that is, it must actually exist.”

Spokeo, 136 S. Ct. at 1548. Moreover, a party cannot rest on

“abstract,” id., or “conclusory” assertions of injury, Block v.

Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986), but must point

to “specific, concrete facts demonstrating … harm,” Warth v.

Seldin, 422 U.S. 490, 508 (1975).

In Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002), we

explained the procedures for proving standing when a

petitioner seeks review of agency action directly in a court of

appeals. “The party invoking federal jurisdiction bears the

burden of establishing” standing, which “must be supported in

the same way as any other matter on which the [party] bears

the burden of proof.” Defs. of Wildlife, 504 U.S. at 561. So a

petitioner “must either identify in [the administrative] record

evidence sufficient to support its standing to seek review or, if

there is none because standing was not an issue before the

agency, submit additional evidence to the court of appeals.”

Sierra Club, 292 F.3d at 899. Moreover, because “full

development of the arguments for and against standing requires

the same tried and true adversarial procedure we use for the

presentation of arguments on the merits,” the petitioner must

make this evidentiary presentation no later than when it files

the opening brief. Id. at 900. We have reiterated these

principles many times. See, e.g., Del. Dep’t of Nat. Res. &

Envt’l Control v. EPA, 785 F.3d 1, 8 (D.C. Cir. 2015); Texas v.

EPA, 726 F.3d 180, 198 (D.C. Cir. 2013); Int’l Bhd. of

Teamsters v. TSA, 429 F.3d 1130, 1134–36 (D.C. Cir. 2005).

And we have codified them in our Circuit Rule 28(a)(7), which

provides that, “[i]n cases involving direct review in this court

of administrative actions, the brief of the appellant or petitioner

must set forth the basis for the claim of standing,” and that,

“[w]hen the appellant’s or petitioner’s standing is not apparent

from the administrative record, the brief must include

arguments and evidence establishing the claim of standing.”

6

Consumer Action’s initial submissions fail to show that its

members suffered or will suffer an injury in fact. To establish

such an injury, an organization must provide “individual

affidavits” from “members who have suffered the requisite

harm.” Summers v. Earth Island Inst., 555 U.S. 488, 499

(2009). It is “not enough to aver that unidentified members

have been injured.” Chamber of Commerce v. EPA, 642 F.3d

192, 199 (D.C. Cir. 2011). Despite these settled rules,

Consumer Action failed to submit any member affidavits with

its opening brief, and its own affidavit fails to identify any

individual members. Moreover, the affidavit barely describes

even the general contours of its membership. The affidavit

states that “members, followers and supporters include retirees

and retirement savers,” as well as “representatives of a national

network of nearly 7,000 community-based organizations that

serve seniors, minority Americans, disabled Americans, and

individuals living in rural areas.” Pet. Add. at 433. Left

unclear is whether the members are retirees and retirement

savers, members of other unnamed organizations, or perhaps

neither. To be sure, the opening brief states that Consumer

Action’s “members” include seniors, Americans who lack

internet access, and others. Pet. Br. at 17. But the brief still

fails to identify individual members, as required by Earth

Island Institute. And in any event, a petitioner must support its

standing “by affidavit or other evidence,” Sierra Club, 292

F.3d at 899 (quotation marks omitted), and briefs “are not

evidence,” id. at 901. Finally, the affidavit states only that

unspecified members or others “prefer a choice to have paper

communications” and wish to avoid the “burdens imposed by

SEC’s Rule 30e-3.” Pet. Add. at 433. The former statement is

puzzling because Rule 30e-3 preserves investors’ ability to

choose between electronic and paper communications. As for

the latter statement, “general allegations of injury are

insufficient,” Conservation Force, Inc. v. Jewell, 733 F.3d

1200, 1207 (D.C. Cir. 2013), so a reference to unspecified

7

“burdens” is not proof of “direct, real, and palpable” injury,

Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C.

Cir. 2015) (quotation marks omitted).

Likewise, nothing in the administrative record shows a

concrete injury to identified members of Consumer Action.

The organization notes that, in various comments made during

the rulemaking, it warned that Rule 30e-3 would decrease

readership of shareholder reports, investor access to

information, and transparency. But none of the comments tied

these harms to any identified members. Consumer Action

further notes that the SEC acknowledged its comments that the

rule would disadvantage seniors and minorities. See

Shareholder Reports, 83 Fed. Reg. at 29,162 n.51. But again,

neither the comments themselves, nor the SEC’s response,

addressed whether the harms alleged would befall identified

members of Consumer Action. This should hardly be

surprising: Article III standing requirements do not apply to

agency rulemaking, so Consumer Action would have had no

occasion to argue, and the SEC would have had no occasion to

decide, whether the proposed rule would inflict an injury on

identified members of the organization. And because

Consumer Action was not itself an object of the rulemaking, its

standing would not likely have been apparent. See Sierra Club,

292 F.3d at 899–900.

Consumer Action submitted affidavits from individual

members with its reply brief, but they came too late. We may

excuse forfeitures of non-jurisdictional preservation

requirements for “good cause.” Sierra Club, 292 F.3d at 900.

In the context of Sierra Club and Circuit Rule 28(a)(7), we

have found such good cause in two circumstances: where “the

parties reasonably, but mistakenly, believed that the initial

filings before the court had sufficiently demonstrated

standing,” Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588,

8

599 (D.C. Cir. 2015) (quoting Ams. for Safe Access v. DEA,

706 F.3d 438, 443 (D.C. Cir. 2013)); and where the parties

“reasonably assumed that [their] standing was self-evident”

from the administrative record, Am. Library Ass’n v. FCC, 401

F.3d 489, 494 (D.C. Cir. 2005); see Del. Dep’t of Nat. Res. &

Envt’l Control, 785 F.3d at 8; Town of Barnstable v. FAA, 740

F.3d 681, 691 (D.C. Cir. 2014). In this case, Consumer Action

could not reasonably have believed that its barebones affidavit,

vaguely describing the preferences and burdens of unnamed

members and others, sufficed to prove its representational

standing. Nor could it reasonably have believed that its

standing was self-evident from the rulemaking record.

Consumer Action suggests that Communities Against

Runway Expansion, Inc. v. FAA, 355 F.3d 678 (D.C. Cir. 2004)

(CARE), allows a petitioner to prove standing for the first time

in a reply brief, so long as standing is obvious. We do not read

CARE that broadly. There, an organization challenged the

approval of a runway expansion at Logan Airport. With its

opening brief, the organization submitted affidavits from

members who lived nearby, but the affidavits lacked “facts

sufficient to support a finding that the declarants would be

exposed to a concrete and particularized ‘injury in fact’ as a

result of the contested project.” Id. at 684. With its reply brief,

the organization submitted additional affidavits from other

members who declared that they would experience “increased

noise from aircraft operations at Logan.” Id. CARE thus

involved new factual material tendered to shore up deficient

individual affidavits submitted with the opening brief. In that

circumstance, we considered the reply affidavits—which, we

stressed, made the organization’s standing “patently obvious”

and “irrefutable.” Id. at 685.

This case differs from CARE in three critical respects.

First, Consumer Action made a far less substantial showing of

9

standing in its initial submissions. In CARE, the organization

tendered affidavits from members who lived near Logan

Airport and alleged injury in at least general terms. See 355

F.3d at 684. So, there was at least arguably good cause to

excuse the forfeiture. See Ctr. for Sustainable Econ., 779 F.3d

at 599. Here, in contrast, Consumer Action tendered no

member affidavits, identified no specific members, and failed

to describe its membership in even general terms. This cannot

amount to good cause.

Second, the reply affidavits in this case raise an entirely

new theory of standing. In CARE, the injury pinned down in

the reply affidavits—increased airport noise—was hardly

surprising in light of initial submissions from individuals living

near an airport and complaining about a runway expansion.

Here, in contrast, the opening submissions give no sense of the

theory of injury introduced in reply. Consumer Action’s

opening affidavit speaks vaguely of “burdens,” and its opening

brief elaborates that Rule 30e-3 will harm members “with

respect to their ability not only to access but also to understand

critical shareholder information.” Pet. Br. at 17. Yet, in the

reply submissions, some affiants stress ideological opposition

to Rule 30e-3, see Pet. Reply Add. at 50 (“I do not believe I

should have to take these extra steps to continue receiving

paper copies of my information”); id. at 59 (“I do not like the

idea of fund managers relying on ‘implied consent’ to stop

sending paper copies”), while others do not wish to “spend

[their] valuable time” to make a toll-free telephone call to

receive paper copies of shareholder reports, id. at 55–56, 58.

No member alleges impeded access to or understanding of

shareholder reports. In short, the original suggestion of

impaired access and understanding has morphed into an

objection about having to make a free phone call.

10

We cannot read CARE to permit reply affidavits that

propose a new theory of injury—whether obvious or not.

Because standing must be shown in the same way as other

issues, Defs. of Wildlife, 504 U.S. at 561, we have held that “the

ordinary rules of forfeiture apply to standing,” Gov’t of

Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019).

Those rules include the basic precept that arguments generally

are forfeited if raised for the first time in reply. See, e.g.,

United States v. Van Smith, 530 F.3d 967, 973 (D.C. Cir. 2008).

Likewise, an argument is forfeited if the petitioners “were

obscure on the issue in their opening brief and only warmed to

the issue in their reply brief.” Novak v. Capital Mgmt. & Dev.

Corp., 570 F.3d 305, 316 n.5 (D.C. Cir. 2009) (cleaned up). At

best, that is what Consumer Action has done here, for its

opening submissions did not fairly raise the theory of injury

that it now seeks to press. We recognize that Americans for

Safe Access considered a theory of injury first raised in a

supplemental brief ordered by this Court. See 706 F.3d at 443–

45. But we reasoned that the agency, by not arguing in its own

later submission that the theory was raised too late, forfeited its

forfeiture argument. Id. at 444. Here, in contrast, the SEC had

no comparable opportunity to respond to the theory of injury

first raised by Consumer Action in its reply. And in any event,

it has stressed all along that “[a] petitioner is generally required

to meet its burden to establish standing in its opening brief.”

Resp. Br. at 22.

Third, the reply affidavits in this case hardly make

standing patently obvious. The affiants stating ideological

opposition to Rule 30e-3 plainly lack standing, for an “interest

in the proper administration of the laws” is quintessentially

“nonconcrete.” Earth Island Inst., 555 U.S. at 497 (quotation

marks omitted). The affiants complaining of lost time present

a closer question. On the one hand, even a small financial

injury confers Article III standing. See, e.g., Carpenters Indus.

11

Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017). On the other

hand, at least where intangible injuries are at issue, either the

injury must have “a close relationship to a harm that has

traditionally been regarded as providing a basis for a lawsuit in

English or American courts,” or a statute must make the injury

“legally cognizable.” Spokeo, 136 S. Ct. at 1549 (quotation

marks omitted). Consumer Action cites an out-of-circuit

decision predicating Article III standing on “the occupation of

[a] fax machine for … one minute.” Palm Beach Golf Ctr.–

Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251

(11th Cir. 2015) (parentheses omitted). But Palm Beach Golf

arose under the Telephone Consumer Protection Act, which

created statutory protection against unwanted phone or fax

solicitations. See id. at 1252. Here, in contrast, we are aware

of no analogous statute that protects shareholders from having

to use the telephone. Nor does Consumer Action contend that

the minimal time lost in making a free phone call bears any

close relationship to injuries traditionally deemed adequate in

law. These may be debatable questions, but Consumer Action

frustrated the adversarial process by teeing them up for the first

time in reply. Under these circumstances, we cannot find

standing based on its reply submissions.

III

To seek judicial review, the Industry Petitioners must

assert interests falling “arguably within the zone of interests to

be protected or regulated” by the laws that they invoke. Clarke

v. Secs. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quotation

marks omitted). This rule was once described as one of

“prudential standing,” but then, in a case originating in district

court, was recast as one for “determining who may invoke the

cause of action” providing the basis for the lawsuit. Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

130 (2014). The zone-of-interests requirement also limits who

12

may seek judicial review directly in a court of appeals, as we

have recognized both before and after Lexmark. See, e.g.,

Sierra Club v. EPA, 755 F.3d 968, 976 (D.C. Cir. 2014);

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

921–22 (D.C. Cir. 1989) (HWTC). Protected interests are ones

asserted either by “intended beneficiaries” of the statute at

issue or by other “suitable challengers”—i.e., parties whose

interests coincide “systemically, not fortuitously” with those of

intended beneficiaries. HWTC, 885 F.2d at 922–24. These

rules are designed to prevent litigation by parties “whose suits

are more likely to frustrate than to further statutory objectives.”

Id. at 922 (quotation marks omitted).

The Industry Petitioners contend that Rule 30e-3 violates

the Securities Act of 1933, the Securities Exchange Act of

1934, and the Investment Company Act of 1940. Two of those

statutes permit any person aggrieved by an SEC regulation to

seek judicial review in this Court. See 15 U.S.C. §§ 77i(a),

80a-42(a); N.Y. Republican State Comm. v. SEC, 799 F.3d

1126, 1130–34 (D.C. Cir. 2015).1 The Industry Petitioners also

invoke the Administrative Procedure Act, but it neither creates

jurisdiction, Califano v. Sanders, 430 U.S. 99, 104–07 (1977),

nor augments specific-review provisions like those in the

securities statutes, see 5 U.S.C. § 704; Bennett v. Spear, 520

U.S. 154, 161–62 (1997). As their basis for constitutional

standing and statutory aggrievement, the Industry Petitioners

allege that Rule 30e-3 will harm paper companies by reducing

the demand for their products. So the dispositive question is

1

All three statutes permit any person aggrieved by an SEC “order”

to seek judicial review in this Court. 15 U.S.C. §§ 77i(a), 78y(b)(1),

80a-42(a). The word “order” encompasses SEC rules in the context

of the Securities Act and the Investment Company Act, see N.Y.

Republican State Comm., 799 F.3d at 1130–34, but not in the context

of the Exchange Act, Am. Petrol. Inst. v. SEC, 714 F.3d 1329, 1333–

37 (D.C. Cir. 2013).

13

whether that interest—in selling more paper—is one arguably

protected by the securities laws.

As sellers of paper, the Industry Petitioners are not

intended beneficiaries of the securities laws. The Securities

Act “regulates initial distributions of securities,” and the

Exchange Act “regulates post-distribution trading.” Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164, 171 (1994). These statutes “embrace a

fundamental purpose to substitute a philosophy of full

disclosure for the philosophy of caveat emptor.” Id. (cleaned

up). Likewise, the Investment Company Act regulates

investment companies to protect investors. See 15 U.S.C.

§ 80a-1(b). In sum, “shareholders [are] the direct and intended

beneficiaries” of the securities laws, Piper v. Chris-Craft

Indus., Inc., 430 U.S. 1, 32 (1977)—and paper sellers are not.

That leaves the question whether the interests asserted by

the Industry Petitioners systematically coincide with those of

shareholders. In HWTC, we held that a group representing the

interests of waste treatment plants could not challenge the

alleged laxity of regulations under the Resource Conservation

and Recovery Act. We reasoned that overly stringent

regulation might sometimes harm environmental interests, but

waste treatment facilities—which stand to profit from it—

would urge stricter regulation “whether the effect on health and

the environment [was] good, bad, or indifferent.” 885 F.2d at

924–25. We have applied this holding repeatedly, see Sierra

Club, 755 F.3d at 976, and we have extended it to bar

challenges by manufacturers of pollution-control equipment to

the alleged laxity of regulations under the Clean Air Act, see

Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 870–71

(D.C. Cir. 2001).

14

Those cases control this one. As paper companies, the

Industry Petitioners would prefer paper disclosure for all

shareholders. There is no reason to think that this unqualified

preference systematically aligns with the interests of

shareholders. In fact, there is good reason to believe the

opposite. As the SEC explained, “an investor looking for a

fund’s annual report is most likely to seek it out on the fund’s

website, rather than request it by mail or phone.” Shareholder

Reports, 83 Fed. Reg. at 29,165 n.96. So, the Industry

Petitioners already are opposed to the largest cross-section of

individual shareholders. Moreover, there is a pronounced and

growing trend in favor of internet usage, especially among

households that own mutual funds. See id. at 29,165 n.97.

Thus, the conflict between the interests of paper sellers and

those of shareholders is likely to increase over time. This

suggests a systematic misalignment with shareholder

preferences, which makes paper companies distinctly

unqualified to advance the interests of shareholders.

The Industry Petitioners invoke First National Bank &

Trust Co. v. National Credit Union Administration, 988 F.2d

1272 (D.C. Cir. 1993), and Honeywell International, Inc. v.

EPA, 374 F.3d 1363 (D.C. Cir. 2004). These cases permitted

suits to enforce specific entry restrictions imposed on

competitors of the plaintiffs or petitioners. In First National

Bank, we allowed a bank to challenge an agency decision

allowing a rival credit union to expand its membership. 988

F.2d at 1275–79. The bank argued that the decision violated a

statute limiting membership to “groups having a common bond

of occupation or design.” Id. at 1273 (quotation marks

omitted). In Honeywell, we permitted a company to challenge

an agency decision allowing a competitor to market certain

products. 374 F.3d at 1370–71. The company argued that the

agency impermissibly had rested on economic rather than

environmental considerations, in violation of section 612(c) of

15

the Clean Air Act. See id. at 1365, 1371–72. In both cases, we

distinguished HWTC on the ground that “the potentially

limitless incentives of competitors were channeled by the terms

of the statute into suits of a limited nature brought to enforce

the statutory demarcation.” First Nat’l Bank, 988 F.2d at 1278;

see Honeywell, 374 F.3d at 1370–71. In other words, both

cases involved statutes that “constrain[ed] competitors to a

limited role in guarding a congressionally drawn boundary.”

First Nat’l Bank, 988 F.2d at 1278.

The challenge here is not so limited. The SEC adopted

Rule 30e-3 under general grants of rulemaking authority to

carry out the purposes of the Securities Act, the Exchange Act,

and the Investment Company Act. See 15 U.S.C. §§ 77s(a),

78w(a), 80a-37(a). In exercising these authorities, the

Commission must consider “the public interest,” “the

protection of investors,” and “whether the action will promote

efficiency, competition, and capital formation.” 15 U.S.C.

§§ 77b(b), 78c(f), 80a-2(c). The Exchange Act further

prohibits rules that impose “a burden on competition not

necessary or appropriate in furtherance of the purposes of this

chapter.” Id. § 78w(a)(2). The Industry Petitioners argue that

the Commission violated these provisions, but none of them

forms a discrete “statutory demarcation” enforceable by “suits

of a limited nature.” First Nat’l Bank, 988 F.2d at 1278.

Because the securities laws impose no meaningful constraint

on the Industry Petitioners’ ability and incentive to push paper

regardless of the interests or preferences of shareholders, the

controlling precedent here is HWTC.

IV

Consumer Action lacks Article III standing, and the

Industry Petitioners assert interests beyond those arguably

16

protected or regulated by the securities laws. Accordingly, we

deny the petition for review.

So ordered.