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@ McCLURE v. CARTER 269 Cite as 513 F.Supp. 265 (1981) has considered the issue in numerous con- texts and has expressed the standing re- quirements in several formulations. Some of the formulations leave one with the sense that standing can never be deter- mined until the case has been tried on the merits; only at that point can one say with certainty that the plaintiff did or did not have a protected legal right or that he or she suffered a wrong for which the law ‘provides a remedy. The distinction be- tween injury “in fact” and injury “in law” and whether either or both remain require- ments for standing is not always clear. The Court has at times required that a plaintiff show a distinct “legal interest” before he or she may have standing in federal court. E. g., Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). More recently, the Court has said that a plaintiff must merely be within the “zone of interests” sought to be protected by the constitutional or statutory guarantee in question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In other cases, the Court has suggested that a plaintiff need only show “injury in fact” to satisfy the personal stake requirement of article III. E. g., Duke Power Co. v. Caroli- na Environmental Study Group, Inc., 438 US. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United States v. Students Challeng- ing Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 98 S.Ct. 2405, 37 L.Ed.2d 254 (1978). A person may thus have standing, despite the lack of a demon- strable legal right, if he can show an injury in fact and, we would surmise, some colora- ble legal claim. The law is less clear that a person without an injury in fact may have standing, although it appears that at least in some limited circumstances a statute May give such a person a cause of action based on a rationale of enforcing the public interest through private persons concerned about public questions. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 n.8, 92 S.Ct. 1861, 1364 n.3, 31 L.Ed.2d 636 (1972); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814 (D.C.Cir.1975); Clean Air Act, 42 U.S.C. § 7604 (Supp. II 1978) (authorizing civil suits by “any person”). But in Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), the Court, in acknowledging that Congress may grant an express right of action that otherwise would be barred on prudential grounds, af- firmed that “the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” (2] In light of the foregoing, we now inquire whether Senator McClure has standing to bring this suit consistent with the requirements of article III. The analy- sis must be two-fold. First, without refer- ence to any particular statute, does Senator McClure, either as a private individual or as a senator, have a sufficient personal stake in the challenge to Judge Mikva’s appoint- ment to give him standing? Second, if Sen- ator McClure does not have a sufficient personal stake under that criterion, has Congress, by the statute under which Sena- tor McClure seeks to sue, properly con- ferred a sufficient “right” upon him to give him standing and to satisfy the case or controversy requirement of article IH? Without reference to the statute under which Senator McClure seeks to sue, we conclude that a United States Senator, su- ing in either his individual capacity or his official capacity as a senator, lacks standing to challenge the validity of the appointment of a federal judge. In Ex Parte Levitt, 302 U.S. 638, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (per curiam), the Supreme Court denied a mo- tion brought by a member of the Supreme Court bar for an order to show cause why Justice Black, then recently appointed to the Supreme ‘Court, should be permitted to serve as a Justice. The challenge was based on the: Ineligibility Clause, the same constitutional provision relied upon by Sen- ator McClure in this suit. In denying the motion for lack of standing, the court said that “(i]t is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in r 2S