Independent Market Monitor for Pjm v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2025 Decided December 30, 2025
No. 24-1164
INDEPENDENT M ARKET M ONITOR FOR PJM,
P ETITIONER
v.
F EDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
DOMINION ENERGY S ERVICES , INC ., ET AL.,
INTERVENORS
On Petition for Review of an Order of the
Federal Energy Regulatory Commission
Jeffrey W. Mayes argued the cause and filed the briefs for
petitioner.
Jason T. Perkins, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were David L. Morenoff, Acting General Counsel, and
Robert H. Solomon, Solicitor.
Steven M. Nadel argued the cause for intervenors in
support of respondent. With him on the brief were Christopher
R. Jones, Miles H. Kiger, William M. Rappolt, Gary E. Guy,

-- 1 of 20 --

2
John Longstreth, Donald A. Kaplan, and Chimera N.
Thompson.
Before: HENDERSON and KATSAS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in the judgment filed by Senior Circuit
Judge EDWARDS .
KAREN LEC RAFT HENDERSON, Circuit Judge: PJM
Interconnection LLC (PJM), which manages an electrical grid
spanning thirteen states and the District of Columbia, hired
Petitioner Market Monitoring Analytics LLP as its independent
market monitor (IMM) to monitor and report on market
conditions in PJM’s region. For a time, PJM permitted IMM
to sit in on meetings held between the PJM Board of Managers
(Board) and PJM’s Liaison Committee, a nonvoting body that
serves as a forum for open communications between PJM
Members and the Board. That practice came to an end,
however, when PJM decided to enforce a provision in the
Liaison Committee’s charter limiting attendance to end-use
customers and regulated utilities serving the PJM market
region. IMM complained to the Federal Energy Regulatory
Commission (FERC or Commission) regarding this policy
change and the Commission sided with PJM. IMM now
petitions for review. Because we conclude that IMM lacks
standing, we dismiss the petition for lack of jurisdiction.
I. BACKGROUND
Since the 1990s, the Commission “has encouraged
transmission providers to establish ‘Regional Transmission
Organizations’” (RTOs) as part of a broader effort to create a

-- 2 of 20 --

3
more competitive and efficient electricity market. Morgan
Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish
Cnty., 554 U.S. 527, 536 (2008). RTOs are Commission-
regulated entities that have operational control of “all
transmission services in a particular region independent of the
utilities that own the transmission lines.” NRG Power Mktg.,
LLC v. FERC, 718 F.3d 947, 950 (D.C. Cir. 2013). “Among
other things, these organizations manage the electricity grid in
their respective geographic regions, steady the supply of and
demand for energy in those regions, and ensure that the grid
remains reliable over the long haul.” Vistra Corp. v. FERC, 80
F.4th 302, 307 (D.C. Cir. 2023) (citation omitted).
The Commission’s rules also require each RTO to
“perform a market monitoring function to ensure that markets
within [its] region . . . do not result in wholesale transactions or
operations that are unduly discriminatory or preferential.”
Elec. Power Supply Ass’n v. FERC, 391 F.3d 1255, 1260 (D.C.
Cir. 2004) (citation modified); accord 18 C.F.R. § 35.34(k)(6).
RTOs “can choose to perform the monitoring function
themselves or use an independent contractor.” Elec. Power
Supply Ass’n, 391 F.3d at 1260.
Whether they are in-house or hired from the outside, the
Market Monitors operate as auditors within their RTOs,
“largely confined to observing the [RTO] market’s operations
and . . . offering recommendations” on how to improve market
conditions. Old Dominion Elec. Coop. v. FERC, 892 F.3d
1223, 1233 (D.C. Cir. 2018). They generally have no authority
to implement Commission-approved tariffs and must operate
independently of any regulated utilities operating within the
RTO’s market region. See 18 C.F.R. § 35.28(g)(3)(iii)(A), (vi).
Under the Commission’s rules, the Market Monitor performs
three core functions: (1) “[e]valuate existing and proposed
market rules, tariff provisions and market design elements and

-- 3 of 20 --

4
recommend proposed rule and tariff changes”; (2) “[r]eview
and report on the performance of the wholesale markets” to its
RTO; and (3) “[i]dentify and notify the Commission” of any
violations of the Commission’s rules or the RTO’s tariffs. 18
C.F.R. § 35.28(g)(3)(ii)(A)–(C). “[T]o enable the Market
Monitoring Unit to carry out its functions,” the Commission’s
rules require each RTO to provide its Market Monitor with
unfettered “access” to the RTO’s “market data” and “databases
of market information.” Id. § 35.28(g)(3)(i)(A)–(B). RTOs
must also codify these disclosure policies in their tariffs. See
id. § 35.28(g)(3)(i).
PJM is an RTO that operates transmission facilities in
thirteen states and the District of Columbia. Del. Div. of the
Pub. Advoc. v. FERC, 3 F.4th 461, 463 (D.C. Cir. 2021). As
the Commission’s rules require, PJM outlined the powers and
responsibilities of its Market Monitoring Unit in Attachment M
of its Open Access Transmission Tariff (Attachment M or PJM
Tariff).
Section IV of Attachment M describes the functions and
responsibilities of PJM’s Market Monitor. It provides that the
Market Monitor is to “objectively monitor the competitiveness
of PJM Markets, investigate violations of FERC or PJM
Market Rules, recommend changes to PJM Market Rules [and]
prepare reports for the Authorized Government Agencies.”
Addendum (Add.) 14–15, § IV.A. The Market Monitor may
also “initiate and propose” changes to the PJM Market Rules
and the PJM Tariff. Add. 15–16, § IV.D. Subsection G of
Section IV provides that the Market Monitor “may, as it deems
appropriate or necessary[,] . . . participate . . . in stakeholder
working groups, committees or other PJM stakeholder
processes.” Add. 17.

-- 4 of 20 --

5
Attachment M goes on to address, in Section V, the Market
Monitor’s entitlement to “Information and Data.” Add. 21
(emphasis omitted). Pursuant to Section V, the Monitor “shall
be provided” all “information gathered or generated by PJM in
connection with its scheduling and dispatch functions, its
operation of the transmission grid in the PJM Region or its
determination of Locational Marginal Prices.” Add. 21, § V.A.
Section V also empowers the Market Monitor to make
reasonable requests for information in the hands of any PJM
Market Participant, so long as the Monitor “determines that
[this] information is required to accomplish” its objectives.
Add. 21, § V.B.1. And if an entity “does not provide [the]
requested information within a reasonable time, the Market
Monitoring Unit may initiate . . . regulatory or judicial
proceedings to compel . . . production,” by, for example,
“petitioning the Commission for an order.” Add. 21–22,
§ V.B.2.
Under IMM’s services agreement with PJM, the
responsibility to “evaluate[] whether IMM is adequately
performing its functions” falls on PJM’s Board of Managers,
which must meet with IMM at least once per year for a
performance review. Add. 181, Market Monitoring Service
Agreement (MMSA) § 27. At these performance meetings, if
the PJM Board “determines that IMM has acted (or failed to
act) in a manner that the . . . Board believes is not adequate,”
IMM has the right to written notice “specify[ing] in detail the
nature of the alleged inadequate performance,” as well as the
opportunity to explain that “the alleged inadequate
performance” was “beyond [its] control or without fault or
negligence on [its] part.” Add. 183, MMSA § 27.7.
IMM is a vocal “participant in a wide range of PJM
committees, subcommittees, task forces, user groups, and
forums” that make up PJM’s organizational structure. Add. 8,

-- 5 of 20 --

6
Bowring Decl. ¶ 18. Although it “does not vote in any [of
these] stakeholder process[es],” Add. 5, Bowring Decl. ¶ 8, it
regularly “initiates and proposes changes to the [PJM market]
design” during these proceedings and “comments on changes
proposed” by others, Add. 4, Bowring Decl. ¶ 6. By its own
count, IMM participated in more than 100 stakeholder
meetings in 2024. Add. 8, Bowring Decl. ¶ 19. And it does not
take part in them just for the fun of it; IMM claims that it “must
be able to participate” in PJM’s stakeholder proceedings to
perform its “mission” of monitoring the PJM market. Add. 4,
Bowring Decl. ¶ 7.
That brings us to the facts of this case. For a time, IMM
attended meetings held between the PJM Board and PJM’s
Liaison Committee, a nonvoting body within PJM that consists
of up to three representatives from each industry sector
operating within the PJM market. J.A. 127. According to its
charter, the Liaison Committee’s objective is “[t]o foster better
communications between the PJM Board . . . and the PJM
Members.” J.A. 126. But the Committee has no “authority to
vote on or to decide any matters.” J.A. 126. In these meetings,
Committee members and the Board discuss various topics,
including capacity market issues, market design and IMM’s
services agreement with PJM. Add. 7, Bowring Decl. ¶15. The
discussions also serve as an opportunity for PJM Members to
understand the Board’s decision-making process. J.A. 126.
Individuals who sit in at these meetings are “listen-only
observers.” J.A. 127.
Even though the Liaison Committee’s charter limits
attendees at its meetings to “PJM Members”—that is, utilities
or other suppliers in the PJM market and their end-use
customers—the prevailing practice had been to allow non-
members to attend as well. Add. 178. In September 2018,
however, PJM’s Members Committee rejected a proposal to

-- 6 of 20 --

7
ratify this practice and announced that, moving forward, only
PJM Members could attend the Liaison Committee’s meetings.
Add. 179. Because IMM is not a PJM Member, it could no
longer attend.
IMM filed a complaint before the Commission alleging
that its exclusion from the Liaison Committee meetings
violated Section IV.G of the PJM Tariff. IMM claimed that the
Liaison Committee is a “stakeholder working group[],
committee[] or other PJM stakeholder process[]” under Section
IV.G and that IMM therefore has the right under this provision
to “participate” in the Committee meetings. J.A. 7. The
Commission dismissed IMM’s complaint. It concluded that
Section IV.G’s phrase “stakeholder working groups,
committees or other PJM stakeholder processes” refers
exclusively to the “elements of [the] decision making process”
within PJM that handle “proposed revisions” to PJM’s tariffs,
market design or other operational duties. J.A. 105. The
Liaison Committee, the Commission reasoned, is not subject to
Section IV.G because it exists outside PJM’s decisional process
as a nonvoting body that merely serves as a conduit for PJM
Members to discuss various issues with the Board.
IMM petitioned this Court for review of the Commission’s
decision. Several regulated utilities have intervened in support
of the Commission (Intervenors).
II. ANALYSIS
Before we can address the merits of IMM’s petition, we
must be certain of our jurisdiction to review it. Under the
Constitution, our “judicial Power” extends only to “Cases” and
“Controversies,” U.S. Const. art. III, § 2, cl. 1, and there can be
no case or controversy unless the petitioner has standing, West
v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017) (citation
omitted). To have standing, the petitioner must suffer an injury

-- 7 of 20 --

8
in fact that is fairly traceable to the respondent and redressable
by a favorable decision. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). Injury in fact, “the first and foremost
of standing’s three elements,” requires the petitioner to show
“an invasion of a legally protected interest” that is “concrete
and particularized” and “actual or imminent.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338–39 (2016) (citation modified). In
determining standing, we assume IMM is correct on the merits
that its exclusion from the Liaison Committee meetings
violates Section IV.G. See Am. Soc’y for Prevention of Cruelty
to Animals v. Feld Ent., Inc., 659 F.3d 13, 20 (D.C. Cir. 2011).
This is not the first time we have addressed IMM’s
standing to challenge a purported violation of a PJM Tariff
provision. In Old Dominion Electric Cooperative, a utility
operating in the PJM market asked the Commission for
permission to change retroactively its rates to recover losses it
had incurred in generating surplus power in response to a polar
vortex. 892 F.3d at 1229–30. The Commission denied the
request, concluding that the proposed rate change would
violate a PJM Tariff provision capping the price at which
utilities charged customers for generating power. Id. at 1230.
When the utility petitioned this Court for review, IMM moved
to intervene in support of the Commission’s decision—a
request we denied. Id. at 1233–34.
We held in Old Dominion that IMM lacked standing to
intervene because it had “no legally cognizable interest” in the
enforcement of PJM’s price-cap provision against the utility.
Id. at 1232. As “an outside observer hired to study and report
objectively on the market’s operations,” we explained, IMM’s
interests were “limited to monitoring, advising, encouraging
compliance, and informing others through regulatory filings
and other informal communications, none of which [were] at
stake in this case.” Id. at 1233–34. Regardless whether the

-- 8 of 20 --

9
utility followed through with its proposed rate change, IMM’s
“ability to observe the market’s operations and to make
recommendations or to inform potentially interested parties of
its observations remain[ed] the same.” Id. at 1234.
The Commission and the Intervenors suggest that Old
Dominion categorically rules out IMM’s standing to challenge
any PJM Tariff violation. Commission Br. 18–19; Intervenors’
Br. 11–12. That is incorrect. The alleged tariff violation in Old
Dominion did not even brush shoulders with IMM’s ability to
carry out its monitoring functions, which was the reason IMM
lacked standing to intervene in that case. See 892 F.3d at 1234.
We had no occasion to decide whether, or under what
circumstances, violations of other provisions in the PJM Tariff
can injure IMM sufficiently to give it Article III standing.
Fairly read, Old Dominion left open that question.
Establishing standing is IMM’s burden to bear. Elec. Priv.
Info. Ctr. v. Presidential Advisory Comm’n on Election
Integrity (EPIC), 878 F.3d 371, 377 (D.C. Cir. 2017). As an
organization, IMM can demonstrate standing “by making the
same showing required of individuals: an actual or threatened
injury in fact that is fairly traceable to the [respondent’s]
allegedly unlawful conduct and likely to be redressed by a
favorable court decision.” Am. Anti-Vivisection Soc’y v. U.S.
Dep’t of Agric., 946 F.3d 615, 618 (D.C. Cir. 2020) (citation
modified). But as with standing for individuals, IMM’s injury
“must be ‘concrete,’ meaning that it must be real.” FDA v. All.
for Hippocratic Med., 602 U.S. 367, 381 (2024). A mere
“setback to the organization’s abstract social interests” is
insufficient. Am. Anti-Vivisection Soc’y, 946 F.3d at 618
(quotation omitted). “To determine whether an organization’s
injury is ‘concrete and demonstrable’ or merely a ‘setback,’”
our inquiry is twofold. People for the Ethical Treatment of
Animals (PETA) v. U.S. Dep’t of Agric., 797 F.3d 1087, 1094

-- 9 of 20 --

10
(D.C. Cir. 2015) (citation omitted). First, we ask whether the
petitioner has shown an injury to its organizational interests.
Id. Second, we look to whether the petitioner has “used its
resources to counteract that harm.” Id. IMM has done neither.
A. IMM’s lack of concrete harm to its interests
IMM claims that its exclusion from the Liaison Committee
meetings concretely harms its interests in two ways. First,
IMM argues that it is deprived of access to “information”
exchanged during the Committee’s meetings. Pet’r’s Opening
Br. 10, 12. Second, IMM maintains that its absence from the
meetings denies it “notice and [the] opportunity” to respond to
“complaints” about its performance made to the PJM Board.
Pet’r’s Opening Br. 15. We address each theory in turn and
find neither to be persuasive.
Starting with its first theory, IMM claims that its lack of
access to information during the Liaison Committee meetings
works a concrete injury under the Supreme Court’s decision in
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and our
decisions applying it. Pet’r’s Opening Br. 10–12, 14–15, 14
n.25. Havens Realty, however, “found informational
injury . . . under a statute that . . . explicitly created a right to
information.” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d
496, 502 (D.C. Cir. 1996). By contrast, IMM seeks to enforce
a legal provision that does not obligate anyone to disclose
anything. Friends of Animals v. Jewell, 828 F.3d 989, 994
(D.C. Cir. 2016). Section IV.G on its face does not guarantee
IMM “a right to receive information in a particular form,” id.
(citing Havens Realty Corp., 455 U.S. at 373–75), such as
transcripts, electronic recordings, minutes or other records of
PJM’s stakeholder proceedings. All that provision says is that
IMM may “participate” in these proceedings, Add. 17,
§ IV.G—i.e., “initiate and propose, through the appropriate

-- 10 of 20 --

11
stakeholder processes, changes to the design of [the PJM]
markets, . . . the PJM Market Rules and PJM Tariff.” Add. 15–
16, § IV.D.
Granted, in the past we have found organizational standing
under Havens Realty based on informational harm “even
though [the organization] had no legal right” to the information
it sought. See Am. Anti-Vivisection Soc’y, 946 F.3d at 619
(citing PETA, 797 F.3d at 1103 (Millett, J., dubitante)). But
the Supreme Court has since “cautioned against” extending
Havens Realty to such cases unless the organization can
demonstrate how the lack of information “directly affect[s] and
interfere[s] with [its] core business activities.” See Ctr. for
Biological Diversity v. U.S. Dep’t of the Interior, 144 F.4th
296, 315 (D.C. Cir. 2025) (quoting All. for Hippocratic Med.,
602 U.S. at 395–96). IMM cannot satisfy that burden because
IMM does not dispute that it already possesses the market-
related information needed to carry out its tasks of “monitoring,
advising, encouraging compliance, and informing others” in
the PJM market. See Old Dominion Elec. Coop., 892 F.3d at
1234.
Recall that the Commission’s rules require every RTO to
“include in its tariff a provision to provide its Market
Monitoring Unit access to . . . [the RTO’s] market data” and
other “market information.” 18 C.F.R. § 35.28(g)(3)(i)(A)–(B).
PJM has done so in Section V of its Tariff, which states that
IMM will be “provide[d]” all “information gathered or
generated by PJM in connection with its scheduling and
dispatch functions, its operation of the transmission grid . . . or
its determination of Locational Marginal Prices.” Add. 21,
§ V.A.
Critically missing here is any allegation by IMM that PJM
has violated its disclosure duty under Section V. If it were

-- 11 of 20 --

12
somehow the case that IMM’s absence from the Liaison
Committee meetings had denied it access to the “scheduling,
dispatch and other operational data” referenced in Section V,
Add. 21, § V.A, IMM might have a case for organizational
standing under Havens Realty. In that case, PJM would deprive
IMM of the information that it depends on “to carry out its
[monitoring] functions.” 18 C.F.R. § 35.28(g)(3)(i)(A). It
would not be unlike providing “false information about
apartment availability” to a company whose core business
model is offering counseling services to home seekers, All. for
Hippocratic Med., 602 U.S. at 395 (citing Havens Realty, 455
U.S. at 379), or failing to provide incident reports of animal
cruelty that animal-rights groups use as a “primary source of
information” to educate the public, PETA, 797 F.3d at 1096
(citation omitted). Yet IMM does not claim that the Committee
exchanges any Section V information with the Board during its
meetings; IMM does not even identify what specific
information is shared during these meetings. Pet’r’s Reply Br.
7–8 (stating vaguely that the information is “about market
design” issues). In any event, IMM has abandoned its Section
V argument by conceding that it already “has access to the . . .
market-related data” required under that provision. Pet’r’s
Reply Br. 8.1
1 Nor does IMM’s absence from the Liaison Committee
meetings meaningfully impede its ability to “make
recommendations” for improving PJM market conditions. Old
Dominion Elec. Coop., 892 F.3d at 1234. IMM admits that it
remains an “active participant in a wide range” of other
stakeholder meetings, during which it routinely “initiates and
proposes” improvements to the PJM market, and that it
“attended more than 100” such meetings in 2024 alone. Add.
4, 8, Bowring Decl. ¶¶ 6, 18–19.

-- 12 of 20 --

13
IMM also claims that it must attend the Liaison
Committee’s meetings or it will lack “notice and [the]
opportunity to be heard” whenever the Committee complains
about its performance to the PJM Board. Pet’r’s Opening Br.
15. IMM’s purported injury is speculative at best, as nothing
in the record indicates the Committee has used its meetings
with the Board as an opportunity to malign IMM’s
performance.2 Moreover, IMM is simply incorrect that it must
attend the meetings to “know what [is] communicated [about
it] to the Board” or that, unless it attends, it will not have the
chance to respond. Pet’r’s Opening Br. 18. As explained,
IMM’s services agreement already provides IMM a direct line
of communication to the Board to discuss any performance-
related complaints. Under the agreement, if the Board
determines that IMM’s performance has fallen short in some
way, IMM is entitled to written “notice” specifying “in detail”
the alleged deficiencies as well as the opportunity to defend
itself. Add. 183, MMSA § 27.7. It stands to reason that if the
Liaison Committee brings a meritorious complaint about
IMM’s performance to the Board, the Board will notify IMM
of it in due course and allow it the chance answer. IMM
disputes none of this.3
2 And PJM recently extended IMM’s contract for another
six years, which, if anything, suggests that PJM is satisfied with
IMM’s work. Commission Br. 25 n.7 (citing PJM Transmittal
Letter, FERC Dkt. No. ER25-807-000, at 2–3, 5 (Dec. 26,
2024)).
3 We do not address IMM’s separate argument that it has
established a cognizable informational injury under the line of
cases starting with FEC v. Akins, 524 U.S. 11 (1998). We
conclude IMM forfeited standing under Akins by waiting until
its reply brief to argue it. See Twin Rivers Paper Co. LLC v.
SEC, 934 F.3d 607, 615 (D.C. Cir. 2019).

-- 13 of 20 --

14
B. No use of IMM resources
The second “important limitation[] on the scope of
[organizational] standing” is that the organization must show
how it has “used its resources to counteract” the injury. EPIC,
878 F.3d at 378 (quotations omitted). IMM totally fails this
requirement because it “does not identify programmatic
expenditures it must make to fill the gap” caused by its absence
from the Liaison Committee meetings. Ctr. for Biological
Diversity, 144 F.4th at 315. It vaguely asserts in its brief that it
must “expend resources” to discover what is said during the
meetings. Pet’r’s Opening Br. 15. But “we can only speculate”
as what those costs might be. EPIC, 878 F.3d at 379.
“Speculation is ordinarily fatal to standing,” id., and so it is
here. See Viasat, Inc. v. FCC, 47 F.4th 769, 781 (D.C. Cir.
2022) (“These unadorned assertions do not enable us to fairly
assess whether the Group has satisfied the requirements for
organizational standing under Havens Realty and PETA.”).
* * *
For the foregoing reasons, we dismiss IMM’s petition for
lack of jurisdiction. As it failed to do as an intervenor in Old
Dominion, IMM has not demonstrated any concrete injury.
So ordered.

-- 14 of 20 --

EDWARDS, Senior Circuit Judge, concurring in the
judgment: This case involves a claim by Petitioner,
Independent Market Monitor (“IMM”), that it has
“organizational standing” to challenge a decision issued by the
Federal Energy Regulatory Commission (“FERC”). IMM
contends that FERC erred in rejecting its claim that PJM
Interconnection, L.L.C. (“PJM”) impermissibly excluded it
from attending PJM’s Liaison Committee meetings. IMM
argues that FERC’s decision “harms [its] organizational
interest and significantly hinders its ability to perform its
mission” as an independent market monitor. Pet’r’s Opening
Br. 3; see also id. at 10-15 (relying primarily on Havens Realty
Corporation v. Coleman, 455 U.S. 363 (1982), and its
progeny).
This case is not about informational standing. IMM never
mentions “informational standing” in its opening brief to this
court. Nor does it cite the Supreme Court’s principal
informational standing decision in FEC v. Akins, 524 U.S. 11
(1998), until it responds to FERC in its reply brief. See Pet’r’s
Reply Br. 4. Organizational and informational standing are
distinct concepts. See FDA v. All. for Hippocratic Med., 602
U.S. 367, 395 (2024) (observing, after discussing the plaintiff
organizations’ assertion of organizational standing, that the
organizations “have not claimed an informational injury”).
Given the focus on organizational standing in this case, the
relevant question here is whether IMM has satisfied the
requirements of Havens. In order to support a cause of action
pursuant to organizational standing, a plaintiff organization
must show a “concrete and demonstrable injury to [its]
activities,” “with [a] consequent drain on [its] resources,”
which “constitutes far more than simply a setback to the
organization’s abstract social interests.” Havens Realty Corp.,
455 U.S. at 379; see also All. for Hippocratic Med., 602 U.S.
at 395 (summarizing Havens as recognizing standing when the
challenged “actions directly affect[] and interfere[] with [an

-- 15 of 20 --

2
organization’s] core business activities” beyond its “issue-
advocacy” goals). Under Havens, organizational standing
cannot be sustained if the only alleged injury “arises from the
effect . . . on the organization[’s] lobbying activities,” or when
the impairment is to “pure issue-advocacy.” People for the
Ethical Treatment of Animals (“PETA”) v. USDA, 797 F.3d
1087, 1093-94 (D.C. Cir. 2015) (citations omitted); see also
Ctr. for Biological Diversity v. U.S. DOI, 144 F.4th 296, 315
(D.C. Cir. 2025) (requiring “injury to . . . non-advocacy
operations” or programming). However, as the Court made
clear in Havens, a plaintiff organization may successfully
establish organizational standing without prevailing on the
merits. See 455 U.S. at 379 n.21 (noting that, while the
organization had standing to sue, it “[o]f course . . . will have
to demonstrate at trial” the merits of its claim “before it will be
entitled to judicial relief”); see also PETA, 797 F.3d at 1097
(holding, after recognizing PETA’s organizational standing,
that PETA failed to state a claim and, thus, “[h]aving won the
standing battle, . . . nonetheless loses the war”). A plaintiff
organization may have standing to bring a claim even if it can
show “no legal right” to the remedy it seeks. Am. Anti-
Vivisection Soc’y v. USDA, 946 F.3d 615, 619 (D.C. Cir. 2020)
(discussing PETA).
As the majority opinion points out, the Supreme Court’s
Havens analysis has crystallized into a two-prong test for
organizational standing. First, the plaintiff organization must
show that the “action or omission to act injured the
organization’s interest.” PETA, 797 F.3d at 1094 (cleaned up).
Second, the plaintiff organization must also show that it “used
its resources to counteract that harm.” Id. (citation omitted).
Again, as the Court explained in Havens, there can be no
question that an organization has suffered injury in fact if it
alleges “concrete and demonstrable injury to the organization’s

-- 16 of 20 --

3
activities—with the consequent drain on the organization's
resources.” 455 U.S. at 379.
In my view, IMM has clearly satisfied the injury-in-fact
first requirement of Havens. IMM challenges a FERC decision
that “directly affected and interfered with [its] core business
activities.” All. for Hippocratic Med., 602 U.S. at 395. IMM’s
“core business” as a market monitor organization is
independent oversight over PJM. It is responsible for
“objectively monitor[ing] the . . . PJM Markets,”
“investigat[ing] violations of FERC or PJM Market Rules,”
and “prepar[ing] reports for . . . Government Agencies.” Joint
App. (“J.A.”) 75-76. As IMM explains in its briefs, it cannot
perform these “core business activities” without access to
stakeholder committees and the stakeholder process, of which
it alleges that Liaison Committee meetings are a crucial part.
See Pet’r’s Opening Br. 14 (“[IMM] requires access to the
stakeholder process, including the Liaison Committee, to
understand and participate in the development of proposals and
guide its independent participation in FERC proceedings.”);
see also Add. 6 (“Excluding [IMM] from the Liaison
Committee meetings significantly hinders its ability to perform
its mission.”). The question here is whether IMM has claimed
FERC’s decision “perceptibly impaired [its] ability” to
perform its market monitor functions. All. for Hippocratic
Med., 602 U.S. at 395 (citation omitted). I would find that IMM
has sufficiently alleged such a harm.
Before FERC issued its disputed decision, IMM had
routinely attended Liaison Committee meetings until 2018.
J.A. 73. IMM explains that continued access to Liaison
Committee meetings is crucial to fulfilling its oversight and
reporting duties because at those meetings, PJM members
“advocate proposed changes to the market design” that IMM

-- 17 of 20 --

4
must “monitor and respond to.” Add. 6-7. Furthermore, other
topics “discussed at the Liaison Committee are significant and
fundamental issues about the present and future status of PJM
and PJM markets and PJM transmission planning,” all of which
IMM has an organizational stake in monitoring. Add. 7.
This is precisely the kind of organizational injury that
Havens recognizes. IMM does not argue that it is injured
simply by virtue of its exclusion from Liaison Committee
meetings; its claimed injury is that exclusion from Liaison
Committee meetings impedes its ability to carry out its
organizational mission and “core business” of overseeing
PJM’s activities. There is no prohibited issue advocacy or
lobbying here, just an organization trying to perform its day-
to-day activities. IMM thus satisfies the first prong’s command
to show “injur[y] [to] the [organization’s] interest.” PETA, 797
F.3d at 1094 (third alteration in original) (citation omitted).
The majority says that the Court’s opinion in Alliance for
Hippocratic Medicine suggests that an organization cannot
show organizational standing under Havens based on
informational harm if it has no legal right to the information it
sought. I disagree. All the Court in Alliance for Hippocratic
Medicine said was that courts should be “careful not to extend
the Havens holding beyond its context.” 602 U.S. at 396. And
what the Court saw in Havens was a claim in which the
defendant’s actions “directly affected and interfered with [the
organization’s] core business activities—not dissimilar to a
retailer who sues a manufacturer for selling defective goods to
the retailer.” Id. at 395. This is precisely what IMM claims in
this case – that FERC’s disposition “directly affected and
interfered with” IMM’s “core business activities” of
monitoring, advising, encouraging compliance, and informing
others in the PJM Market. Whether IMM has a “legal right” to

-- 18 of 20 --

5
continue fulfilling its role as it has in the past is a question
regarding the merits of IMM’s cause of action, not its
organizational standing to pursue this claim.
The majority opinion appears to conflate two independent
theories of standing: Havens (stating the requirements for
organizational standing) and Akins (stating the requirements
for informational standing). But as explained above, Havens
does not require a plaintiff to show a legal right to the remedy
it requests in order to establish organizational standing.
However, I agree with the majority that IMM has not met
its burden on the second requirement for organizational
standing under Havens. As noted above, the Supreme Court in
Havens found it significant that the challenged activity in that
case had allegedly “frustrated [the plaintiff] organization’s . . .
services,” which led to a “consequent drain on resources.” 455
U.S. at 369; see also id. at 379 (“Plaintiff . . . has had to devote
significant resources to identify and counteract” defendant’s
practices (citation omitted)). Based on the Court’s concern
with the “drain on resources” in Havens, our case law requires
that a plaintiff organization show that it “used its resources to
counteract th[e] harm” alleged. PETA, 797 F.3d at 1094
(citation omitted).
To make this showing, it is not enough for an organization
to merely state that it has expended resources in response to the
alleged harm. Instead, an organization must offer specific
representations to show a “drain on resources.” Havens, 455
U.S. at 369; compare PETA, 797 F.3d at 1096 (finding that the
organization satisfied the second prong by providing a
declaration that PETA was “forced to expend more than
$10,000” “as a direct result of the USDA’s failure” and would
“continue expending more than $3,000 per year on the same”

-- 19 of 20 --

6
(citation omitted)), with Ctr. for Biological Diversity, 144 F.4th
at 315 (finding that the organization could not satisfy the
second prong because it “d[id] not identify programmatic
expenditures it must make to fill the gap”), and Elec. Privacy
Info. Ctr. v. FAA, 892 F.3d 1249, 1255-56 (D.C. Cir. 2018)
(similarly concluding that the organization lacked standing
because it “failed to identify record evidence,” including
“statements concerning . . . its increased expenditures”).
In this case, IMM has not provided any credible
information about a “drain on resources.” Instead, it vaguely
claims that it “has been forced to expend resources that it
should not have had to expend . . . to indirectly surmise the
information and positions presented [at Liaison Committee
meetings].” Pet’r’s Opening Br. 14-15. The applicable case law
indicates that this is insufficient. As a result, IMM has not
established that it has organizational standing to sue.
For these reasons, I concur in the judgment.

-- 20 of 20 --