(dissenting) :

The majority confers standing to bring private damage actions under section 10(b) and Rule 10b-5 upon persons who neither bought nor sold securities and who never contracted with anyone to do so. I cannot reconcile this result *143 with existing authority in our circuit and elsewhere or with the legislative scheme of which the section and the rule are a part. The majority’s justification for the result is that these nonpurchas-ing appellants, as members of a class benefited by a consent divestiture decree in an action to which they were not parties, had a special status that was equivalent to the status of an investor who had a contract to buy or to sell securities. I perceive no analogy between the two and no sound reason to create a fiction to expand the reach of section 10(b) damage actions.

The result reached by the majority is inconsistent with the holding and reasoning of this court’s recent decision in Mount Clemens Industries, Inc. v. Bell (9th Cir. 1972) 464 F.2d 339 . Mount Clemens held that the purchaser-seller rule governs standing to bring section 10(b) damage actions in the courts of this circuit. The court then concluded that the noncontractual status of the Mount Clemens nonbuyer was fatal to the maintenance of his section 10(b) claim. Similarly, the noncontractual status of the nonbuyer appellants herein should be held to bar their suit. 1

The majority, however, attempts to bring appellants within the class of protected investors by saying that the consent decree serves the same function as did the contractual relationship referred to in Mount Clemens. The majority means that appellants’ status under the consent decree is analogous to that of purchasers or sellers whose contracts to buy or to sell aborted because of deceptive practices forbidden by section 10(b) and who were given standing to sue in cases that were cited and distinguished in Mount Clemens.

The functions of a contract and of the consent decree are, however, not the same. A contract to purchase or to sell a security is the equivalent of a purchase or a sale because the statute by definition makes them equivalent. 2 As Mount Clemens explained, the unifying link among the cases granting. standing to persons who did not buy or sell “is the existence of a contractual relationship *144 between the parties which elevated the plaintiffs to the status of statutory purchasers or sellers.” (464 F.2d at 345.) A consent divestiture decree cannot function similarly because it is not a “contract” within the meaning of the statute and because no statutory provision equates “purchase” and “offer pursuant to a consent decree.” The essential statutory link between the appellants and “purchasers” is missing.

The gap cannot be filled by saying, as does the majority, that a contract and the consent decree render causation and damages equally provable. Assuming that this similarity exists, it is nonetheless irrelevant. The court in Mount Clemens concluded that the speculativeness of a cause of action was not a ground for denying standing. ( 464 F.2d 346 n. 11 .) .If speculativeness will not impair standing, a want of speculativeness cannot support standing. The ability of a plaintiff to prove causation and damages is relevant to the disposition of the merits, not to a determination of whether or not a certain plaintiff is properly before the court.

Furthermore, the appellants’ ability to prove causation and damages cannot be likened to that of parties who have contracted to buy or sell. Their situations are dissimilar because a contract creates legal rights between the parties. Appellants had no duties and no rights created by the consent decree. The decree could not have been enforced against them, and they could not have enforced it, even if the parties to the action resulting in the decree had intended to benefit them specifically. (E. g., Buckeye Co. v. Hocking Valley Co. (1925) 269 U.S. 42 , 46 S.Ct. 61 , 70 L.Ed. 155 ; United States v. ASCAP (2d Cir. 1965) 341 F.2d 1003 ; Control Data Corp. v. IBM Corp. (D.Minn.1969) 306 F.Supp. 839 , aff’d sub nom. Data Processing Financial & General Corp. v. IBM Corp. (8th Cir. 1970) 430 F.2d 1277 . See Dahl, Inc. v. Roy Cooper Co. (9th Cir. 1971) 448 F.2d 17, 20 . 3 Because the consent decree creates no rights or duties in appellants, their commitment and ability to purchase the offered securities are far less definite than in a case in which a contract binds the parties. This want of definiteness renders appellants far less able to prove causation and damages than those who have contracted to buy securities and negates the “same function” conclusion that is the basis for the majority’s grant of standing.

The foregoing analysis suggests that the majority does not succeed in bringing appellants within the ambit of the standing rule established in Mount Clemens-, indeed, it does not really attempt to do so. To state that the consent decree serves the same function as a contract masks the majority opinion’s real purport, which is the creation of an exception to the purchaser-seller rule. 4

*145 The opinion attempts to justify the exception by (1) implying that the purchaser-seller rule is grounded solely on a policy of denying standing where either causation or damages is dubious, 5 and (2) arguing that appellants should have standing because they could prove both elements. Neither proposition withstands scrutiny.

Although the purchaser-seller rule is occásionally buttressed by observations about the difficulties of proof that would accompany an abandonment of the rule, no authority purports to say that the potential for proving causation and damages is the essence of the rule. On the contrary, a person who is either a purchaser or seller and who alleges deception, causation, and damages can bring the action even if his ability to prove his ease is nil. (Cf. Mount Clemens Industries, Inc. v. Bell, supra, at 346 n.11.) He may promptly lose on a motion for summary judgment, but his action cannot be dismissed for lack of standing. The majority opinion’s effort to find sustenance for its view of the purpose of the purchaser-seller requirement in suits seeking only injunctive relief is unavailing. The purchaser-seller rule has only peripheral relationship to suits for an injunction. 6 A rule that no one could obtain preventive relief who could not prove that the fraud had already been consummated would be quixotic. Moreover, expansion of standing to bring suits for injunctive relief does not entail the risk of strike suits or of exposure to imponderable liability that expanded standing in damage actions threatens.

The assertion that appellants are peculiarly able to prove causation and damages and thus are separable from all other nonbuyers is also faulty. The quantity of shares offered, the price, and the time of sale are generally fixed in a securities offering. These factors, therefore, do not distinguish the offer to appellants from an offer of the same securities to the general public. Although the majority opinion says that the appellants’ expectations are “rights,” they are not legally cognizable rights. If the offer were withdrawn or the decree not complied with, appellants could not complain. The susceptibility of appellants’ expectations to being so frustrated renders appellants’ damages as difficult to prove as those of a plaintiff whose acceptance of an offer is “thwarted by the intervention of an earlier or higher bidder.” Nor is it the case that causation is more easily proven by appellants than by a nonpurchasing public offeree. The majority opinion states, “ordinarily *146 there will be little proof (other than the non-purchaser’s own opinion, after the loss) that the non-purchaser would in fact have purchased but for the fraud . . . The majority’s position is reasonable, but irrelevant. One who has the opportunity to purchase securities may let the opportunity pass for want of ability to take it, for failure to notice the opportunity, or for mis judgment of the market. These considerations apply as strongly to appellants’ case as they do to the case of public of-ferees. Appellants were as free to decline the bargain for the same reasons as any other nonbuyers. Appellants are in no better position than the public of-ferees to claim that if they had known the truth, they would have snapped up the bargain. The argument that a person not only adequately alleges damages, but also prima facie proves causation by stating a marked disparity between the value of the security and the offering price is startling. Any nonbuyer or nonseller could easily leap the causation hurdle if that proposition were true.

Appellants are therefore in the same legal position as were the nonbuying members of the general public to whom the same securities were subsequently made available by the consent decree and who, as appellants concede, have no standing to bring a section 10(b) damage action. Appellants cannot explain why their own situation is essentially different from other nonbuyers, except that they are a more discrete group than the general public and their disappointment can be assuaged for no more than $21,000,000, rather than many times that amount. Absent such a difference, the exception to the purchaser-seller rule that the majority seeks to establish is unjustifiable.

At the heart of the majority’s inability to justify its exception to the purchaser-seller rule is what I believe to be a basic misunderstanding of the role of a standing requirement in the context of securities litigation. The majority apparently believes that any plaintiff who can credibly allege the substantive elements of a cause of action sould be granted standing. However, even if litigants can allege and even prove all of the elements of a section 10(b) damage claim, they nonetheless may lack standing. The standing doctrine is not designed to thwart actions by persons who have not suffered any injury from a wrong. It is a means of foreclosing actions by persons who have been hurt by wrongs, but who, for reasons of legislative, judicial, or social policy, are outside of the class of persons who are given a particular kind of remedy for the injury. 7 A federal standing requirement insures that litigants are sufficiently adverse to satisfy the case or controversy requisite of Article III of the Constitution, and it confines the persons who may bring suit to those whom Congress intended to provide the remedy invoked in a particular controversy. Appellants do not have standing because they are outside the class to whom Congress intended to extend the right to bring federal damage actions when it enacted section 10(b).

Congress could have preempted state law controlling deceptive practices in the marketing of these securities, and it would have given anyone injured by the practices condemned by section 10(b) a private federal damage remedy. It did neither. Instead, Congress created a scheme of private and public remedies superimposed upon state statutory and common law remedies. When confronted with-a complex legislative scheme of this kind, the judiciary must be extremely careful not to upset the balances built into the scheme by lightly implying federal remedies or by diluting princi-. pies of standing. (Cf. SEC v. National *147 Securities, Inc. (1969) 393 U.S. 453, 465 , 467 n.9, 89 S.Ct. 564 , 21 L.Ed.2d 668 ; Holloway v. Bristol-Myers Corp. (1973) 158 U.S.App.D.C. 207 , 485 F.2d 986 .)

An expansive definition of the class given standing to pursue section 10(b) damage actions promises some incremental benefit in preventing deceptive practices in the marketing of securities, one of the principal purposes of the section. Expanding the class, however, entails costs as well as benefits. Incautious loosening of the purchaser-seller rule will generate federal litigation, increase the cost of marketing securities, 8 inject into securities marketing new risk factors that defy accurate assessment, expose offerors to draconian damage claims, and invite strike suits. 9 Securities markets are complex and sensitive institutions. Opening the valve, even a little, that controls the flow of section 10(b) damage actions can so far unsettle the market as to defeat, rather than to promote, the benevolent purposes of Congress in enacting the statute. (Cf. Herpich v. Wallace (5th Cir. 1970) 430 F.2d 792, 804 .)

The purchaser-seller rule has maintained the balances built into the congressional scheme by permitting damage actions to be brought only by those persons whose active participation in the marketing transaction promises enforcement of the statute without undue risk of abuse .of the litigation process and without distorting the securities market.

The majority implies that its exception to the purchaser-seller rule does no real harm because few litigants will be situated exactly as were these appellants. In my view, the majority underestimates the ingenuity of counsel, but, even if it did not, the position is juris-prudentially unsound because it does not create neutral principles of law. In drawing the standing line between deceived nonbuyers given closed-end opportunities to purchase securities pursuant to a consent decree (appellants) and deceived nonbuyers given opportunities to purchase securities on a while-they-last basis pursuant to the same consent decree (nonbuyer public investors), the majority has not supplied a rationale keyed to the statute and rule to support its conclusion. 10 Without such an underlying rationale, there are no neutral principles preventing the majority’s “causation and damages” or “same function” terminology from being extended to all passive “investors”.

To expand standing to nonsellers or to nonbuyers, like appellants, who have taken no affirmative action of any kind in reliance upon alleged deceptive state *148 ments invites litigation that has nothing to do with protecting the integrity of the marketing of securities. The passive investor could always await market developments without any risk, claiming deception caused nonbuying if the value of the securities proved more promising than the offerors’ glum predictions and deception caused nonselling if a rosier prospectus was followed by a market decline. Meanwhile, securities offerors would be hard pressed to find language for prospectuses that would be sufficiently neutral to avoid potential damage suits from bystanders.

I would affirm.

. Unless some relevant distinction between the nonpurchasers in this case and the nonpurcliasers in Mount Clemens can be asserted, appellants herein must, on authority of Mount Clemens, be denied standing. To be significant, the distinction must be one which would have made a difference in outcome under the reasoning of Mount Clemens.

The majority opinion explicitly suggests only one distinguishing feature between the two cases: “An informed decision by plaintiff-appellant to purchase these shares could not have been thwarted by the intervention of an earlier or higher bidder, as in Mount Clemens . . . This disitnction, however, is irrelevant.

The Mount Clemens court made it clear that the difficulty that plaintiffs therein would have had in proving that they could have purchased the securities in question was not of governing significance in that case: “While we agree with the District Court that the claim of the appellants is highly speculative, that circumstance alone could not necessarily deprive them of the opportunity to prove a set of facts entitling them to relief.” 464 F.2d 346 n. 11 . The court then went on to indicate the factor that was of governing significance: “The lack of an agreement, however, does distinguish the present case from those decisions which permit aborted imrchasers and sellers to maintain an action for damages.” Id.

The distinction through which the majority in this case seeks to avoid the result in Mount Clemens, therefore, is irrelevant, for even if the claim of the plaintiffs in Mount Clemens had been less speculative than the appellants’ claim in this case, the result in Mount Clemens would have been the same. Because plaintiffs therein would nonetheless have been neither actual buyers nor contractual “purchasers”, they would have been denied standing. Similarly, if the outcome in this case is to be in accord with the reasoning in Mount Clemens, appellants must be denied standing because appellants in this case neither actually acquired shares nor entered into contracts for their acquisition.

. Securities Exchange Act of 1934, § 3(a), 15 U.S.C. 78c(a): («

. A persuasive rationale for refusing to accord nonparties standing to enforce a consent decree is that the potential exposure to litigation and to liability that a contrary rule would engender would seriously impair the settlement of litigation. The public interest in obtaining consent decrees outweighs the interest of the nonparty litigants in obtaining direct vindication of their pirivate interests. Control Data Corp. v. IBM Corp. (D.Minn.1969) 306 F.Supp. 839, 846 . If administration of the antitrust laws would be ill served by allowing direct enforcement of consent decrees by third parties, it is difficult to understand how it would be better served by the creation of “rights”, like that created by the majority opinion, that permit indirect enforcement of the decrees.

. The purchaser-seller rule has heretofore been understood to dictate that if a plaintiff in a section 10(b) private damage action is neither a purchaser nor a seller, he does not have standing to sue. To justify its conclusion that appellants have standing, therefore, the majority either must conclude that appellants are purchasers or sellers or must seek to modify the previously established meaning of the purchaser-seller requirement. The former conclusion cannot be sustained. The majority opinion, therefore, must be viewed as arguing for the latter conclusion.

The majority in essence establishes a second basis upon which to claim standing. Under the logic of the majority opinion, a plaintiff may bring suit if either he is a purchaser or seller or he is able to prove cau *145 sation and damages. The purchaser-seller rule ceases to be operative in all cases; its applicability becomes conditional upon the plaintiff’s inability to prove his cause of action.

The majority apparently believes that this is no departure from prior precedent, for it writes of “the cases allowing non-purchasers or non-sellers to sue for damages under the statute and rule.” No cases allowing such plaintiffs to' sue are cited. Concededly, the majority cites several cases in which the strict purchaser-seller rule was relaxed somewhat. The relaxation that those cases countenance, however, is of a different sort altogether than that which the majority proposes. The majority proposes to uncouple the standing requirement from the purchaser-seller rule. The “forced seller” and “aborted purchaser-seller” cases to which the majority refers suggest only that the words “purchaser” and “seller” be liberally defined. They do not suggest that the words become altogether irrelevant and the rule of which they are a part become inoperative in certain contexts.

. If the majority were to fail to assert that this policy is the sole basis for the purchaser-seller rule, the logic of the opinion would fail. Even though some policies underlying-the standing requirement were satisfied in a given case, if there were also other purposes to be met, standing would not properly be granted unless the majority were to show that the other policies also were not ill served by allowing appellants to sue.

. Of the three cases cited by the majority, none explicitly discussed the purchaser-seller requirement, and two involved plaintiffs who were in fact purchasers or sellers. Britt v. Cyril Bath Co. (6th Cir. 1969) 417 F.2d 433 , 435. Compare Rekant v. Desser (5th Cir. 1970) 425 F.2d 872 , 876-879 with id. 879-882 .

. The Supreme Court has described the law of standing as a “complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations.” United States ex rel. Chapman v. Federal Power Comm’n (1953) 345 U.S. 153, 156 , 73 S.Ct. 609, 612 , 97 L.Ed. 918 .

. Under the majority’s rule, securities traders would not only have to insure against potentially crippling damages, they would also have to bear increased compliance costs. The accuracy of a representation with regard to a security is usually judged by hindsight; if the price of the security rises substantially, prior representations may seem unduly conservative; if it falls, too optimistic. Under the purchaser-seller rule, offer-ors can protect themselves against unforeseen impositions of liability by acting with judicious restraint when dealing with others; they need merely avoid inaccuracies that induce others to act. If passive “investors” were also allowed to sue, such self-protective conservatism might prove suicidal, for an offeror would have to be micrometrically accurate. If securities traders are to be held responsible for lapses in such exactitude, the costs of accumulating, verifying, and presenting the necessary data would soar.

. The great ease with which plaintiffs can allege the requirements for the majority’s standing rule and the greater difficulty that plaintiffs are going to have proving the allegations suggests that the majority’s rule will allow a relatively high proportion of “bad” cases into court. The risk of strike suits is particularly high in such cases; although they are difficult to prove at trial, they are even more difficult to dispose of before trial.

. The majority opinion would allow standing to sue if the misled nonbuyer were one of 10 offerees who could buy no more than 10,000 shares each of a 100,000-share offering, but it would deny standing if the nonbuyer were identically misled as to the same shares, but he was one of 11 offerees of 10,000 shares of the same offering to be sold on while-they-last terms. Why?