The Federal Trade Commission has instituted an adjudicatory proceeding against plaintiff-appellant Gifford-Hill & Company. FTC Docket No. 8989 (August 7, 1974). In that proceeding the FTC will detеrmine whether GiffordHill, a cement manufacturer, violated the antitrust laws by acquiring a producer of construction aggregates. 1 Following issuance of the FTC’s administrative сomplaint, Gifford-Hill filed this suit in the District Court in an effort to have the complaint nullified on the ground that the decision to prosecute had been made without compliance with the procedures mandated by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-A347 (1970). The company claimed that before deciding to proceed with its complaint thе FTC should have considered the possibility that undesirable environmental consequences might result from an eventual order requiring it to divest the aggregates producer. 2
Giffоrd-Hill’s motion for a preliminary injunction was denied, primarily because the District Court concluded that NEPA does not apply to the type of agency action at issuе here and that plaintiff’s probability of ultimate success on the merits was, therefore, too low to warrant issuing the injunction. 3 This appeal was taken from the denial of the preliminary injunction. 28 U.S.C. § 1292(a)(1) (1970). Without considering the merits of the NEPA complaint, we affirm.
I
A plaintiff has standing to challenge an administrative action in federal court if the challenged action caused it “injury in fact” and if “the alleged injury was to an interest ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.”
4
Sierra Club v. Morton,
. Gifford-Hill bases its claim to have standing to raise the NEPA question primarily on
National Helium Corp. v. Morton,
10 Cir.,
[i]t may seem passing strаnge to see plaintiffs, the off-spring of corporate giants of the oil and gas industry, garbing themselves in the status of private attorneys general for the public interest, yеt this Court perceives no valid reason why they cannot assert this role as protector of the public interest, along with their own. The Court finds that plaintiffs do have requisite standing to maintain this action.
We have two substantial reasons for concluding that
Helium
and its progeny do not control this case. First, in
Helium
the mechanism of plaintiff’s injury was directly and immediately related to the concerns of NEPA. National Helium’s injury resulted from the cancellatiоn of a Government program designed to encourage capture of helium at the well site in order to prevent that gas from being wasted and to assure an adеquate supply of helium for necessary uses. As both the Tenth Circuit and the District Court explained, the proper use and conservation of depletable natural resources are among NEPA’s primary concerns.
The second reason for distinguishing
Helium
from the present case is that the formеr involved a challenge to an “agency action” under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704 (1970).
See
II
Our conclusion that the FTC’s decision to initiate an adjudicatory pro
*733
ceeding is not an action made reviewable by the APA indicates the second major difficulty with appellant’s action: this suit is premature. Jurisdiction to review antitrust orders of the PTC is conferred on specified Courts of Appeals by 15 U.S.C. § 21(d) (1970). “All constitutional, jurisdictional, substantive, and procedural issues arising in Commission proceedings may be considered” in the statutory review proceeding.
Frito-Lay, Inc. v. FTC,
5 Cir.,
The wisdom of this refusal to entertain most interlocutory appeals is well illustrated by the present case. GiffordHill’s environmental claim is based on the possible result of a divestiturе order which may never be entered, either because the challenged acquisition is found lawful or because some other remedy is deemed more apрropriate. Moreover, during the adjudicatory proceeding both Gifford-Hill and the staff of the FTC can present evidence about environmental factors. That evidence can be considered as it relates to shaping a remedy, if the acquisition violates the antitrust laws, and the administrative law judge and the FTC can determine whеther an environmental impact statement is required before a final order is entered. 6 In view of these opportunities for the FTC to comply with NEPA’s requirements during the adjudicatory proceeding and of the ability of Gifford-Hill to challenge any failure to do so in its appeal from the Commission’s final order, allowing this action to be maintаined would serve no purpose other than the company’s apparent desire for delay. 7
For the foregoing reasons, the decision of the District Court is affirmеd and the case is remanded with instructions to dismiss.
So ordered.
Notes
. Gifford-Hill acquired the Becker Sand & Gravel Company, which strip mines sand and gravel, in 1972.
. The gravamen of Gifford-Hill’s argument is that if it is forced to divest Becker, see note 1 supra, it will be compelled to open additional strip mines of its own in order to provide the materials it now receives from Becker’s mines.
.
Gifford-Hill & Co. v. FTC,
D.D.C.,
. The Supreme Court has not had occasion to determine whether the “injury in fact” must be to an interest within the “zone of interests” protected by the statute, but the better interpretation of the language quoted in text and of Barlow and Ass’n of Data Processing Serv. Organizations is that such a congruence is required. See, e. g., F. Anderson. NEPA in the Courts 43 (1973); K. Davis. Administrative Law Treatise § 22.00-1 at 709 (Supp.1970).
. Gifford-Hill has not, of course, been able to allege that its use or enjoyment of the environment has been harmed or endangered by the FTC’s action.
Cf. Sierra Club v. Morton,
. See Note, Gifford-Hill & Co. v. FTC: Does NEPA Apply to Law-Enforcement Adjudiсatory Functions of an Agency?, 1975 Duke L.J. 743; Council on Environmental Quality, Advisory Memorandum, brief for defendants-appellees at 24a-27a.
. We recognize that our holding effectivеly means that an agency’s decisions to institute adjudicatory proceedings, and
a fortiori
its decisions to institute investigations to determine whether adjudication is warranted, are outside the scope of NEPA. Since these decisions in no way foreclose the agency from considering environmental factors before making a final deсision to require some action, we are convinced that this result is proper. The decision to investigate or to adjudicate does not involve the type оf “irretrievable commitment of resources” which NEPA insists must follow rather than precede consideration of environmental factors.
Cf. Scientists’ Institute for Public Information, Inc. v. Atomic Energy Comm’n,
