On June 11, the U.S. Court of Appeals for the Sixth Circuit heard arguments in Dayton Area Chamber of Commerce v. Kennedy, a case concerning the Biden Inflation Reduction Act’s prescription drug price control program.

Although the appeal addresses only whether the chamber has standing, the merits of the case, which include the potential unconstitutional aspects of the law, go to the heart of the issue of standing in a way that some of the circuit court judges may not have fully grasped.

At issue should simply be whether the chamber meets the second prong of the three-prong associational standing test established by the Supreme Court in Hunt v. Washington State Apple Advertising Comm’n, which requires that “the interests [the organization] seeks to protect are germane to the organization’s purpose.”

The government, apparently concerned (for good reason) that it can’t prevail on the merits, claims that challenging price controls is not germane to the interests of the chamber, a broad-based industry association. The government argued, with a straight face, that a price setting scheme dressed up as a “negotiation” harms only the pharmaceutical companies directly affected.

That, at least, should have been where the arguments played out. For instance, wouldn’t other chamber members be adversely affected by price controls and the punitive measures used to coerce companies into compliance?

Unfortunately, jurists steered the discussion into an argument that suggested they are considering the case in a way likely to be overturned by the Supreme Court.

For instance, U.S. Circuit Judge Andre B. Mathis suggested to the chamber’s counsel, “It seems, based on your argument, a regional chamber of commerce can oppose any government regulation that impacts the national economy, as long as they have a member that has standing,” as if unaware of the test set out by the Supreme Court. Whether the regulation impacts the national economy is irrelevant.

Judge Ronald Gilman pointedly asked the chamber’s counsel to address the district court’s finding: “What the district was concerned about here is . . . that basically this was a forum shopping ploy, because AbbVie and Pharmacyclics could certainly have [filed] their own challenge in this drug price program.”

But the district court’s analysis ignores the fact that the Supreme Court never stated that an adversely affected party, in this case the chamber, is forum shopping simply because there are other adversely affected parties. Indeed, the far-reaching program adversely affects a wide range of interests, not just the pharmaceutical companies. This is the very reason that associations, be they labor unions, environmental groups, and yes, interested businesses, are permitted to bring such cases.

Should the Supreme Court need to review this case, at issue will be whether, as the chamber properly argued, does the controversy adversely affect members other than just AbbVie or Pharmacyclics. If it does, for instance, by harming chamber members in the supply chain, the chamber’s standing is fully justified, if not central to the very purpose the Supreme Court granted standing to associations, so long as they meet the three-prong test.