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CANADIAN LUMBER TRADE ALLIANCE, Plaintiff-Appellee, and
Norsk Hydro Canada, Inc., Plaintiff-Appellee, and
Canadian Wheat Board, Plaintiff-Appellee, and
Government of Canada, Plaintiff-Cross Appellant, and
Ontario Forest Industries Association, Ontario Lumber Manufacturers Association, and The Free Trade Lumber Council, Plaintiffs-Appellees,
v.
UNITED STATES, Defendant-Appellant, and
Coalition for Fair Lumber Imports Executive Committee, Defendant-Appellant, and
US Magnesium LLC, Defendant-Appellant, and
United States Steel Corporation, Defendant-Appellant, and
U.S. Foundry & Manufacturing Co., Neenah Foundry Co., Municipal Castings, Inc., Lebaron Foundry, Inc., East Jordan Iron Works, Inc., Allegheny Ludlum Corporation, and AK Steel Corporation, Defendants-Appellants.
United States Court of Appeals, Federal Circuit. *1320
*1321 *1322 *1323 Mathew S. Yeo, Steptoe & Johnson LLP, of Washington, DC, argued for all plaintiffs-appellees. With him on the brief for Norsk Hydro Canada Inc. was Gregory S, McCue for Canadian Wheat Board, Edward J. Krauland, and for Ontario Forest Industries Association, et al. was Elliot Jay Feldman, Baker & Hostetler LLP, of Washington. Of counsel were Michael Thomas Gershberg and Mark Astley Moran, Steptoe & Johnson LLP, of Washington; John J. Burke and Michael S. Snarr, Baker & Hostetler LLP, of Washington, DC.
Carter G. Phillips, Sidney Austin LLP, of Washington, DC, argued for plaintiff-cross *1324 appellant. With him on the brief was Brian E. Nelson. Of counsel were Ruthanne M. Deutsch and Neil R. Ellis, Sidley Austin LLP, of Washington, DC.
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. On the brief was David S. Silverbrand, Trial Attorney. Of counsel were Michael J. Dierberg, Trial Attorney; and Andrew G. Jones, Office of Assistant Chief Counsel, United States Customs and Border Protection, of Indianapolis, IN.
Bradford L. Ward, Dewey & LeBoeuf LLP, of Washington, DC, for defendant-appellant Coalition for Fair Lumber Imports Executive Committee. With him on the brief was David A. Bentley. Of counsel was Harry L. Clark.
Stephen A. Jones, King & Spalding LLP, of Washington, DC, for defendant-appellant U.S. Magnesium LLC. With him on the brief were Joseph W. Dorn and Jeffrey M. Telep.
Jeffrey D. Gerrish, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, argued for defendant-appellant United States Steel Corporation. With him on the brief were John J. Mangan and Robert E. Lighthizer.
Paul C. Rosenthal, Kelley Drye Collier Shannon, LLP, of Washington, DC, argued for defendants-appellants U.S. Foundry & Manufacturing Co., et al. With him on the brief was Michael R. Kershow.
Stephan E. Becker, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, for amicus curiae Government of Mexico. With him on the brief were Sanjay J. Mullick and Kemba T. Eneas.
Lewis E. Leibowitz, Hogan & Hartson L.L.P, of Washington, DC. for amici curiae ThyssenKrupp Mexinox S.A. de C.V., et al. With him on the brief was H. Christopher Bartolomucci.
Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit Judge.
MICHEL, Chief Judge.
This is a trade case concerning the interplay between the North American Free Trade Agreement Implementation Act, Pub.L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19 U.S.C. §§ 3301-3473) ("NAFTA Implementation Act" or "NIA"), and the Continued Dumping and Subsidy Offset Act, Pub.L. No. 106-387, § 1003, 114 Stat. 1549, 1623 (2000) ("CDSOA"), repealed by the Deficit Reduction Act of 2005, Pub.L. No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006). We heard argument on December 4, 2007.
The NIA was enacted in 1993. Section 408 of that act provides that any subsequent amendment to certain United States trade laws "shall apply to goods from a NAFTA country only to the extent specified in the amendment." 19 U.S.C. § 3438. The CDSOA, enacted in 2000, amended the trade laws by providing that antidumping and countervailing duties assessed on imported goods which previously had been placed into the general fund of the United States Treasury would instead be "distributed on an annual basis . . . to the affected domestic producers for qualifying expenditures." 19 U.S.C. § 1675c (2000). Following enactment of the CDSOA, United States Customs and Border Protection ("Customs") began distributing duties assessed on imported goods, including on goods imported from NAFTA countries Canada and Mexico, to domestic producers.
In 2005, Plaintiffs-Appellees Canadian Lumber Trade Alliance, Norsk Hydro Canada, Inc., Canadian Wheat Board, Ontario Forest Industries Association, Ontario Lumber Manufacturers Association, The Free Trade Lumber Council (together, the "Canadian Producers"), and Plaintiff-Cross Appellant the Government of Canada *1325 sued the United States in the Court of International Trade, alleging that because the CDSOA does not specify that it applies to goods from NAFTA countries, it must be construed (in light of section 408 of the NIA) not to apply to goods from NAFTA countries. The Plaintiffs sought, inter alia, a declaratory judgment interpreting the CDSOA in their favor, and an injunction against Customs' continued distribution of duties assessed on softwood lumber, magnesium, and hard red spring wheat from Canada.
Defendants-Appellants Coalition for Fair Lumber Imports Executive Committee, U.S. Magnesium LLC, United States Steel Corp., U.S. Foundry & Manufacturing Co., Neenah Foundry Co., Municipal Castings, Inc., LeBaron Foundry, Inc., East Jordan Iron Works, Inc., Allegheny Ludlum Corp., and AK Steel Corp. (together, the "Domestic Producers") intervened in the litigation, arguing (along with the United States) that the Plaintiffs lacked standing to challenge Customs' CDSOA distributions, had no cause of action, and were wrong on the merits in any event. After briefing and an evidentiary hearing, the Court of International Trade held that the Canadian Producers had standing and a cause of action, that the Government of Canada did not have standing because it had elected to proceed in the World Trade Organization ("WTO"), and that the merits favored the Canadian Producers. Canadian Lumber Trade Alliance v. United States, 425 F.Supp.2d 1321 (Ct. Int'l Trade 2006) ("CLTA I"). The Court of International Trade issued a declaratory judgment holding the CDSOA inapplicable to goods from Canada and Mexico, and granted an injunction against Customs' further distribution of duties assessed on softwood lumber, magnesium, and hard red spring wheat from Canada. Canadian Lumber Trade Alliance v. United States, 441 F.Supp.2d 1259 (Ct. Int'l Trade 2006) ("CLTA II").
The United States and the Domestic Producers now appeal the judgment in favor of the Canadian Producers, and the Government of Canada cross-appeals the judgment against it and dismissal of its claims for lack of standing. We have jurisdiction over these appeals under 28 U.S.C. § 1295(a)(5). We affirm the declaratory judgment issued by the Court of International Trade, because at least one Plaintiff-Appellee has standing to seek it, and because the Court of International Trade properly interpreted the CDSOA, in light of section 408 of the NIA, to be inapplicable to goods imported from Canada or Mexico. We also affirm the Court of International Trade's dismissal of the Government of Canada's claims for lack of standing, though we hold that Canada's institution of WTO proceedings did not determine this outcome. Finally, we modify the injunction issued by the Court of International Trade so that it pertains only to hard red spring wheat, because subsequent events have rendered this case moot with respect to the softwood lumber and magnesium industries.
BACKGROUND
A. Relevant Provisions of the NAFTA Implementation Act
The United States entered into the North American Free Trade Agreement ("NAFTA") with Canada and Mexico in December of 1992. Congress passed the NIA in November 1993, President Clinton signed the bill on December 8, 1993, and the NIA was made effective on January 1, 1994. Pub.L. No. 103-182, 107 Stat. 2057 (1993). Section 101 of the NIA contains Congress's approval of the NAFTA treaty, providing that "the Congress approves (1) the North American Free Trade Agreement. . . ." 19 U.S.C. § 3311(a) (emphasis added). Section 102 of the NIA provides that "[n]o person other than the United *1326 States (1) shall have any cause of action or defense under (A) the Agreement [i.e., NAFTA][1] or by virtue of Congressional approval thereof. . . ." 19 U.S.C. § 3312(c) (emphasis added).
Section 408 of the NIA, entitled "[t]reatment of amendments to antidumping and countervailing duty law," lies at the center of this appeal. The entire section reads as follows:
Any amendment enacted after the Agreement [i.e., NAFTA] enters into force with respect to the United States that is made to
(1) section 303 or title VII of the Tariff Act of 1930 [19 USCS §§ 1671 et seq.], or any successor statute, or
(2) any other statute which
(A) provides for judicial review of final determinations under such section, title, or successor statute, or
(B) indicates the standard of review to be applied,
shall apply to goods from a NAFTA country only to the extent specified in the amendment.
19 U.S.C. § 3438 (emphasis added).
As the Court of International Trade recognized, section 408 of the NIA is a "magic words" rule. "[A]ny amendment to title VII of the Tariff Act of 1930 must contain certain `magic words' for Congress to indicate that it intends to alter antidumping and countervailing duty laws with respect to NAFTA parties." CLTA I, 425 F.Supp.2d at 1334.
B. The Continued Dumping And Subsidy Offset Act
In 2000, Congress enacted the CDSOA (often referred to as the "Byrd Amendment"). Before passage of the CDSOA, "the duties collected pursuant to the antidumping statute were deposited with the Treasury for general purposes." Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1379 (Fed.Cir.2003). The CDSOA changed this by providing that "[d]uties assessed pursuant to a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921 shall be distributed on an annual basis under this section to the affected domestic producers for qualifying expenditures." 19 U.S.C. § 1675c(a) (2000). In other words, the CDSOA "direct[ed] Customs to pay the collected antidumping duties to [domestic producers] harmed by the anticompetitive conduct" rather than to keep the duties within the government. Huaiyin Foreign Trade Corp., 322 F.3d at 1380.
The CDSOA directed the Commissioner of Customs to establish a "special account" for each antidumping or countervailing duty order, and to deposit into each special account all duties collected after October 1, 2000 "under the antidumping order or finding or the countervailing duty order with respect to which the account was established." 19 U.S.C. § 1675c(e)(2) (2000).[2] Every year, the special accounts were to be distributed to "affected domestic producers"[3] who had incurred and *1327 claimed "qualifying expenditures."[4]
As the Court of International Trade observed, the CDSOA "does not specify that it applies to goods from Canada or Mexico . . . nor did the United States provide advance notice of the [CDSOA] to Canada or Mexico or engage in consultations with regard thereto." CLTA I, 425 F.Supp.2d at 1329. Soon after enactment of the CDSOA, nine countries, including Canada and Mexico, instituted dispute resolution proceedings against the United States in the World Trade Organization, arguing that the CDSOA violated a range of international agreements. A WTO dispute resolution panel, affirmed by the Appellate Body of the WTO, ruled that the United States acted inconsistently with the Uruguay Round Agreements in enacting the CDSOA, and as a remedy authorized the complaining nations to retaliate against the CDSOA by suspending tariff concessions on imports from the United States. See Panel Reports, United States-Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/R, WTDS234/R (Sept. 16, 2002); Appellate Body Reports, United States-Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R, WTDS234/AB/R (Jan. 16, 2003).
Congress repealed the CDSOA as part of the Deficit Reduction Act of 2005, which was signed into law on February 8, 2006. See Pub.L. No. 109-171, 120 Stat. 4, 154 (2006). The repeal was made effective as of October 1, 2007, but provided that Customs may still distribute "duties on entries of goods made and filed before October 1, 2007." Id. § 7601(b).
At various times between enactment of the CDSOA and its repeal, antidumping and countervailing duty orders were in place on softwood lumber, magnesium, and hard red spring wheat from Canada.[5] Pursuant to the CDSOA, Customs distributed duties collected under these antidumping and countervailing duty orders, including duties collected on goods produced or sold by the Canadian Producers, to domestic producers for fiscal years 2003, 2004, and 2005. The approximate amounts of CDSOA distributions were as follows: for softwood lumber from Canada, about $73,000 for 2003, $5.38 million for 2004, and $3.28 million for 2005; for magnesium from Canada, about $7,800 for 2003, $63,400 for 2004, and $25,500 for 2005; and for hard red spring wheat from Canada, about $127,600 for 2005.[6]
*1328 C. Proceedings Below
On April 29, 2005, the Canadian Producers and the Government of Canada filed a total of five complaints against the United States and Customs in the Court of International Trade,[7] alleging that Customs' distribution of duties assessed on imports from Canada was an unlawful agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 702, because the CDSOA, when properly interpreted in light of section 408 of the NIA, does not apply to goods from Canada. Each complaint asked the court to issue a declaratory judgment interpreting the CDSOA and to issue an injunction against further distribution of particular duties. Most of the Complaints also asked the court to instruct Customs to "collect back" particular duties from the domestic producers to whom they had been distributed.[8]
In June of 2005, the parties in each case filed a motion to consolidate the cases.[9] In July of 2005, the Domestic Producers filed motions to intervene, which were granted, and the United States and Domestic Producers moved to dismiss each of the complaints under Court of International Trade Rule 12(b)(1) (lack of subject matter jurisdiction) and Court of International Trade Rule 12(b)(5) (failure to state a claim upon which relief can be granted).
The Court of International Trade granted the motions for consolidation, and the Canadian Producers and Government of Canada moved for summary judgment. The Court of International Trade then construed these motions, as well as the United States' and Domestic Producers' motions to dismiss, as motions for summary judgment or judgment on the agency record. See Ct. Int'l Trade Rules 56, 56.1. On March 27 and 28, 2006, the court held a hearing "to resolve any disputed facts related to jurisdiction," CLTA I, 425 F.Supp.2d at 1333. At the hearing, the court heard testimony from two fact witnesses, including Neal Fisher, Administrator of the North Dakota Wheat Commission (the only "affected domestic producer" to receive CDSOA distributions of duties assessed on hard red spring wheat from Canada). The court also heard from two expert witnesses, a professor of Economics and a professor of Business Administration, who offered competing views of the likely effects of CDSOA distributions on market conditions.
On April 7, 2006, the Court of International Trade issued an opinion holding that (1) the Canadian Producers had standing because they were likely to be economically injured by the challenged CDSOA distributions and were asserting interests within the "zone of interest" of section 408 of the NIA; (2) the Government of Canada did not have standing because it had elected to pursue a remedy for the challenged CDSOA distributions in the WTO and had been awarded a remedy there; (3) the Canadian Producers had a cause of action under the APA; and (4) Customs' distribution *1329 of duties assessed on imports from Canada was unlawful, because the CDSOA must be read in light of section 408 of the NIA not to apply to goods from Canada or Mexico. CLTA I, 425 F.Supp.2d at 1321.
After further briefing concerning remedies, the Court of International Trade issued a second opinion on July 14, 2006, along with a judgment (1) granting the Canadian Producers' motion for judgment on the agency record; (2) denying the Government of Canada's motion for judgment on the agency record; (3) denying the Domestic Producers' and United States' motions for judgment on the agency record as against the Canadian Producers, and granting those motions as against the Government of Canada; (4) dismissing the Government of Canada's complaint; (5) declaring that pursuant to section 408 of the NIA, the CDSOA does not apply to antidumping and countervailing duties assessed on imports of goods from Canada or Mexico; and (6) enjoining Customs from making any continued CDSOA distributions to the extent they derive from duties assessed pursuant to countervailing duty orders, antidumping duty orders, or findings under the Antidumping Act of 1921, upon softwood lumber, magnesium, or hard red spring wheat from Canada. CLTA II, 441 F.Supp.2d at 1259; Ct. Int'l Trade Consol. Ct. No. 05-00324, slip. op. 06-104 (Judgment, Jul. 14, 2006). The Court of International Trade declined to instruct Customs to "collect back" any duties already distributed, however. The United States and Domestic Producers then filed timely appeals, and the Government of Canada filed a timely cross-appeal.
D. Developments Outside the Proceedings Below
During and after pendency of the proceedings below, a number of important developments occurred in the softwood lumber, magnesium, and hard red spring wheat industries. Developments after July 14, 2006, are not reflected in the record before the Court of International Trade, but we may consider them insofar as they bear on issues such as mootness. Cf. Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933, 939 (Fed.Cir.1990) ("[A] reviewing court is not precluded . . . from considering events which have occurred between the date of an agency (or trial court) decision and the date of decision on appeal.").
1. Softwood Lumber
On September 12, 2006, about two months after the Court of International Trade rendered judgment in this case, the United States and Canada signed the Softwood Lumber Agreement 2006 ("SLA 2006"). See Softwood Lumber Agreement Between the Government of Canada and the Government of the United States of America, art. III (Sept. 12, 2006), as amended by Agreement Between the Government of the United States of America and the Government of Canada Amending the Softwood Lumber Agreement Between the Government of the United States of America and the Government of Canada Done at Ottawa on 12 September 2006 (Oct. 12, 2006).
On October 12, 2006, pursuant to the SLA 2006, the United States revoked the antidumping and countervailing duty orders on softwood lumber from Canada, effective retroactively to their May 22, 2002 issue date, "without the possibility of reinstatement."[10] The Department of *1330 Commerce also instructed Customs to "cease collecting cash deposits [of antidumping and countervailing duties], as of October 12, 2006, on imports of softwood lumber products from Canada," to liquidate all unliquidated entries subject to the revoked orders without regard to antidumping or countervailing duties, and to "refund all deposits collected on such entries with accrued interest" to the importers of record.[11]
2. Magnesium
On July 6, 2006, shortly before entry of the Court of International Trade's judgment below, Customs revoked the countervailing duty orders on pure and alloy magnesium from Canada.[12] On October 31, 2006, Norsk Hydro Canada, Inc., the only Canadian Producer in the magnesium industry, announced plans to close its only magnesium plant in Canada during the first half of 2007.
3. Hard Red Spring Wheat
On February 16, 2006, Customs revoked the antidumping and countervailing duty orders on hard red spring wheat from Canada, effective January 2, 2006.[13] The North Dakota Wheat Commission, the only "affected domestic producer" to receive CDSOA distributions derived from duties collected under these orders, was the only entity to claim "qualifying expenditures" pertaining to these orders for fiscal year 2006.[14] According to counsel for the United States, the North Dakota Wheat Commission could obtain up to $180,000 in further distributions under the CDSOA, but for the Court of International Trade's judgment in this case.[15]
DISCUSSION
A. Standard of Review
We review the Court of International Trade's interpretation of a statute, which is a matter of law, de novo. Brother Int'l Corp. v. United States, 464 F.3d 1319, 1324 (Fed.Cir.2006). We review the court's factual determinations for clear error. Better Home Plastics Corp. v. United States, 119 F.3d 969, 971 (Fed.Cir.1997). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed.Cir.2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).
We review Article III standing, a threshold jurisdictional issue and a question of law, de novo, see S. Cal. Fed. S & L *1331 Ass'n v. United States, 422 F.3d 1319, 1328 (Fed.Cir.2005), but "[t]o the extent jurisdictional facts are in dispute, however, the findings of fact are reviewed for clear error." Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989).
When reviewing a decision of the Court of International Trade in a suit brought pursuant to 28 U.S.C. § 1581(i), we apply the standard of review set forth by the Administrative Procedure Act, and will "hold unlawful and set aside [Customs'] action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1354 (Fed.Cir.2006).
B. Standing
The Constitution "limits the judicial power of the United States to the resolution of `Cases' and `Controversies.'" Hein v. Freedom Religion Found., Inc., ___ U.S. ___, 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007) (quoting U.S. Const. art. III, § 2, cl. 1). There is no case or controversy within the meaning of the Constitution unless the plaintiff has standing, as the Supreme Court has explained.
[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have 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." Second, there must be a causal connection between the injury and the conduct complained of the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).
Because standing is "an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Id. at 561, 112 S.Ct. 2130. Allegations alone may suffice to establish standing at the pleading stage, but must be supported with evidence at later stages of the litigation. Id.; accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1861 n. 3, 164 L.Ed.2d 589 (2006) ("the party asserting federal jurisdiction when it is challenged has the burden of establishing it").
Beyond this "irreducible constitutional minimum" of Article III standing, a plaintiff who brings claims under the Administrative Procedure Act ("APA") must also have prudential standing. As the Supreme Court has explained, prudential standing concerns "the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).
Here, the Court of International Trade held that the Canadian Producers possess standing, but that the Government of Canada does not because it elected to seek a remedy for its injury in the World Trade Organization. CLTA I, 425 F.Supp.2d at 1335-54. On appeal, the Domestic Producers and the United States argue that the Canadian Producers have neither constitutional nor prudential standing, while the Government of Canada argues on cross-appeal that it possesses both *1332 types. We affirm that the Government of Canada lacks standing, though not because it instituted WTO proceedings, and we affirm that the Canadian Wheat Board has standing. We need not address the standing of any other Plaintiff because, even assuming that the other Canadian Producers had standing in the Court of International Trade, their claims are now moot as we discuss below.
1. Canadian Wheat Board Article III Standing
The parties frame their constitutional-standing dispute as a question of whether empirical evidence was necessary to demonstrate injury-in-fact in this case, or whether the Court of International Trade was correct to invoke the doctrine of "competitor standing," which relies on economic logic to conclude that a plaintiff will likely suffer an injury-in-fact when the government acts in a way that increases competition or aids the plaintiff's competitors. See, e.g., Clinton v. City of New York, 524 U.S. 417, 433, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (The Supreme Court "routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III `injury-in-fact' requirement]," and any party "who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test." (citing 3 K. Davis & R. Pierce, Administrative Law Treatise 13-14 (3d ed.1994))). See also Ass'n of Data Processing Serv. Orgs., Inc., 397 U.S. at 152, 90 S.Ct. 827 (holding that data processing companies had standing to challenge a ruling by the Comptroller of the Currency allowing banks to provide data processing services); accord Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970); Investment Co. Institute v. Camp, 401 U.S. 617, 620, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) ("[I]t is urged at the outset that petitioners lack standing to question whether national banks may legally enter a field in competition with them. This contention is foreclosed by [Data Processing].").
Here, the Canadian Producers alleged that they (or their constituent members) compete directly with United States producers to whom (or to whose surrogates) Customs distributed money under the CDSOA. By using antidumping and countervailing duties imposed on Canadian goods to subsidize these U.S. competitors rather than for some other purpose, the Canadian Producers argued, Customs made it very likely that the Canadian Producers would suffer economic injury in the form of increased competition. To support this argument, the Canadian Producers presented expert testimony to the Court of International Trade concerning the types of economic injury that were likely to result from government subsidization of a competitor. The United States and Domestic Producers presented countervailing expert testimony, but the Court of International Trade was "persuaded by the Canadian Producers' arguments that there will likely be some injury as a result of the distributions." CLTA I, 425 F.Supp.2d at 1347.
On appeal, the United States and Domestic Producers argue that the Court of International Trade erred by failing to require an empirical analysis linking specific CDSOA distributions to specific, demonstrated economic harms (e.g., lost sales, decreased market share). Only with such an analysis, this argument proceeds, could the Canadian Producers have proven an injury-in-fact that is "concrete and particularized," and "actual or imminent, not `conjectural' or `hypothetical.'" Lujan, 504 U.S. at 560, 112 S.Ct. 2130.
We do not agree. One purpose of the injury-in-fact requirement, as the Court of *1333 International Trade explained, is "to ensure that the plaintiffs have a stake in the fight and will therefore diligently prosecute the case . . . while, at the same time, ensuring that the claim is not abstract or conjectural so that resolution by the judiciary is both manageable and proper." CLTA I, 425 F.Supp.2d at 1336 (citing United Food & Commer. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 556, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996)) (other citations omitted). Therefore, as the Third Circuit has noted, "[i]njury-in-fact is not Mount Everest." Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir.2005). Rather, a plaintiff may establish its injury-in-fact "in the same way as any other matter on which the plaintiff bears the burden of proof." Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
Here, the Court of International Trade conducted a two-day evidentiary hearing devoted to the question of injury-in-fact. The Canadian Producers needed only to establish that it was more likely than not they would be injured by the challenged CDSOA distributions, and they could fairly employ economic logic toward that end even though empirical analysis might conceivably have provided a higher level of certainty.[16]See Adams v. Watson, 10 F.3d 915, 923 (1st Cir.1993) ("[B]asic economic theory quite consistently transcends utter randomness by positing elemental laws of cause and effect predicated on actual market experience and probable market behavior. Indeed, most `competitor standing' cases depend on such core economic postulates.") (emphasis in original).[17]
Although the doctrine of "competitor standing" is not yet well-developed in our Circuit, we note that the D.C. Circuit repeatedly has applied the doctrine to hold that "parties suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition." La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C.Cir.1998). See also New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C.Cir.2002) (explaining that D.C. Circuit applies "`competitor standing' doctrine to an agency action that itself imposes a competitive injury, i.e., that provides benefits to an existing competitor or expands the number of entrants in the petitioner's market.") (emphasis added); U.S. Telecom Ass'n v. FCC, 295 F.3d 1326, 1331 (D.C.Cir.2002) ("regulatory decisions that permit subsidization of some participants in a market can have the requisite injurious impact on those participants' competitors").
In this case, the Canadian Wheat Board is not a textbook candidate for "competitor standing," but the doctrine is instructive nonetheless. The Canadian Wheat Board sells hard red spring wheat. The North Dakota Wheat Commission, the only recipient of the CDSOA distributions challenged *1334 by the Canadian Wheat Board (i.e., the antidumping and countervailing duties assessed on hard red spring wheat from Canada), is an organization which "promotes the sale of [hard red spring] wheat on behalf of farmers in North Dakota and sponsors research on [hard red spring] wheat," but does not itself sell wheat. CLTA I, 425 F.Supp.2d at 1348 (emphasis added). Cf. Adams, 10 F.3d at 922 (competitor standing is "premised on a plaintiff's status as a direct competitor whose position in the relevant marketplace would be affected adversely by the challenged governmental action") (emphasis in original). Further, the research sponsored by the North Dakota Wheat Commission is non-proprietary, and thus may inure to the benefit of the Canadian Wheat Board as well as North Dakota wheat producers.
However, the Court of International Trade found that the North Dakota Wheat Commission's promotional activities have "helped to take back market share from Canadian Wheat in specific export markets," CLTA I, 425 F.Supp.2d at 1348, and the United States and Domestic Producers have not established that this factual finding was clearly erroneous. Loss of market share is certainly an economic injury,[18] and it is quite rational to infer that Customs, by distributing money to an entity that aims to take away market share from Canadian wheat and has already been somewhat successful in that effort, is likely to inflict further economic injury on the Canadian Wheat Board. Indeed, fewer inferences are required to find injury-in-fact in this case than in most "competitor standing" cases, where it is presumed (i.e., without affirmative findings of fact) that a boon to some market participants is a detriment to their competitors.
The United States and Domestic Producers argue that the North Dakota Wheat Commission has yet to spend any of the money it has received under the CDSOA, and that therefore any injury to be suffered by the Canadian Wheat Board as a result of CDSOA distributions is not an "imminent" injury as required by Article III. We disagree. The Administrator of the North Dakota Wheat Commission testified that the reason this money has yet to be spent is "the continued uncertainty involved" in this litigation, and that "[d]ue to that uncertainty, [the wheat commissioners] told us to place [the money] in the cash reserve and leave it alone until we had more certainty." The United States and Domestic Producers cannot rely on the pendency of this lawsuit to argue that a threatened harm is not imminent. See, e.g., Eckles v. City of Corydon, 341 F.3d 762, 768 (8th Cir.2003) ("The City has