Full opinion text
Opinion for the Court filed by Circuit Judge SENTELLE. Opinion, concurring in part and dissenting in part, filed by Circuit Judge RUTH BADER GINSBURG. SENTELLE, Circuit Judge: These consolidated cross-appeals arise from a decision of the United States District Court for the District of Columbia determining statutory and constitutional challenges to abortion-related executive restrictions on the use of population planning funds granted by the Agency for International Development (“AID”) under the Foreign Assistance Act, 22 U.S.C. § 2151 et seq. (“FAA” or “the Act”). The District Court determined that the limitations survived the statutory attacks but found a part of them invalid on constitutional grounds. DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 691 F.Supp. 394 (D.D.C.1988). Plaintiffs, three organizations involved in population planning, appealed from the former determination, and AID from the latter. We, like the District Court, find the statutory arguments un-meritorious and affirm that portion of the District Court decision. As to the constitutional arguments, we conclude that some are without merit and that others were not properly before the Court. We therefore affirm in part, reverse in part, and remand for dismissal. I. Background A. Statutory and Factual Background In the FAA, specifically 22 U.S.C. § 2151b(b), Congress authorized the President “to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning.” Section 2151b(f)(3) of the Act provides that “[n]one of the funds made available to carry out this subchapter may be used to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilization as a means of family planning.” With certain exceptions, the President delegated the functions and allocation of funds authorized by 22 U.S.C. § 2151b(b) to the Director of the United States International Development Cooperation Agency (“IDCA”) in 1979. Executive Order No. 12,163, 44 Fed.Reg. 56,673 (1979). The Director, in turn, delegated that authority to the Administrator of AID. IDCA Delegation of Authority No. 1, 44 Fed.Reg. 57,521 (1979), as amended 45 Fed.Reg. 74,090 (1980). In 1984, President Reagan announced certain abortion-related policy limitations on the use of family planning foreign aid funds. The Reagan Administration presented these new limitations at a United Nations sponsored International Conference on Population in Mexico City. These new limitations thus became known as the Mexico City Policy. See Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session), Mexico, D.F., August 6-13, 1984. The Mexico City Policy states in part: The United Nations Declaration of the Rights of the Child [1959] calls for legal protection for children before birth as well as after birth. In keeping with this obligation, the United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion. Moreover, the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations. With regard to the United Nations Fund for Population Activities [UNFPA], the U.S. will insist that no part of its contribution be used for abortion. The U.S. will also call for concrete assurances that the UNFPA is not engaged in, or does not provide funding for, abortion or coercive family planning programs; if such assurances are not forthcoming, the U.S. will redirect the amount of its contribution to other, non-UNFPA, family planning programs. AID’s foreign aid population assistance activities include all programs described in the Mexico City Policy. After the announcement of that policy, AID developed proposed clauses implementing the Mexico City Policy for insertion in the grant and cooperative agreement documents to be entered between AID on the one hand and foreign governments or domestic and foreign nongovernmental organizations (“DNGOs” and “FNGOs”) on the other. Implementing contract clauses with FNGOs require that each grant recipient certify that “it does not now and will not during the term of this grant perform or actively promote abortion as a method of family planning in AID-recipient countries or provide financial support to any other foreign nongovernmental organization that conducts such activities.” AID Handbook 13 at 4D-54. Thus, a foreign NGO, during the term of an AID-population assistance grant, is prohibited from using its own funds to perform or actively promote abortion as a method of family planning abroad. A DNGO receiving an AID grant or cooperative agreement must certify that it “will not furnish assistance for family planning under this grant to any foreign nongovernmental organization which performs or actively promotes abortion as a method of family planning in A.I.D.-recipient countries or which provides financial support to any other foreign nongovernmental organization that conducts such activities.” AID Handbook 13 at 4C-48 (emphasis added). Thus, DNGOs are prohibited from using grant funds, not their own, for the promotion of abortion in AID-recipient countries. As we will set out below, the current litigation attacks all the Mexico City Policy implementing limitations on the use of AID funds by NGOs for foreign population assistance. B. The Proceedings to Date DKT Memorial Fund Ltd. (“DKT"), a DNGO, together with two FNGOs, Parivar Seva Sanstha, of India (“PSS”), and Population Services Family Planning Programmes, Ltd., of England (“PSFP”) (all collectively “plaintiffs”), brought the present action in 1985, seeking a declaratory judgment that AID’s policy is invalid as violative of (1) plaintiffs’ First Amendment speech and association rights, (2) the FAA, and (3) the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”). Initially, the District Court dismissed the action for lack of standing, also suggesting, in dicta, that the suit presented nonjusticiable political questions. DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 630 F.Supp. 238 (D.D.C.1986). We reversed, rejecting the District Court’s dicta that the suit presented nonjusticiable political questions, granting leave to amend the complaint, and directing further proceedings on the question of standing under the amended complaint, together with appropriate proceedings for disposition on the merits, if standing was then found. DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 810 F.2d 1236 (D.C.Cir.1987). The District Court, thereafter, heard the matter on cross-motions for summary judgment, and entered the order which is the subject of the present appeal. DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 691 F.Supp. 394 (D.D.C.1988). The District Court concluded that plaintiffs had standing to raise the statutory attacks, but that the President had the power under the FAA to impose the limitations announced in the Mexico City Policy. Id. at 397-403. The Court further concluded that the foreign plaintiffs had no First Amendment rights and therefore no standing to assert a violation of such rights. Id. at 406. The Court further concluded, however, that the limitations under review did violate the First Amendment rights of DKT and granted an injunction prohibiting AID’s use of the abortion-related limitations on grant funds. Plaintiffs and AID cross appealed from holdings adverse to their respective positions. II. The Statutory Claims A. The Foreign Assistance Act We consider first plaintiffs’ claim that the Mexico City Policy and the implementing clauses run afoul of the FAA. Their argument is two-pronged. First, they contend the challenged funding eligibility policy contravenes the statutory purposes of the Act and, thereby, exceeds executive authority. Second, they contend that the Executive, by adopting abortion-related restrictions more stringent than those set out in the Act, “contravenes the limits Congress established” and that the executive restrictions are, therefore, invalid. Brief for Appellant at 27. The District Court correctly ruled that both these arguments are without merit. As to the first, that is, that the present executive practice is inconsistent with the general legislative policy, plaintiffs rely principally on statements of policy in 22 U.S.C. §§ 2151b(a), 2151-l(b), 2151u(a). The first of these, section 2151b(a), sets forth Congress’s general finding that: effective family planning depends upon economic and social change as well as the delivery of services and is often a matter of political and religious sensitivity. While every country has the right to determine its own policies with respect to population growth, voluntary planning programs can make a substantial contribution to economic development, higher living standards, and improved health and nutrition. Section 2151-l(b)(l) adds certain principles governing assistance. Among these principles are: “[m]aximum effort ... to stimulate the involvement of the people ... through the encouragement of democratic participation;” the administration of assistance “in a collaborative style to support the developmental goals chosen by each country receiving assistance,” id. § 2151-l(b)(2); and that “United States cooperation in development should be carried out to the maximum extent possible through the private sector,” id. § 2151-l(b)(8). Additionally, plaintiffs contend that the policy is inconsistent with section 2151u(a), in which Congress finds that “activities planned and carried out by private and voluntary organizations and cooperatives,” are favored. Specifically, plaintiffs point to the phrase from that section: “it is in the interest of the United States that such organizations and cooperatives expand their overseas development efforts without compromising their private and independent nature.” Id. § 2151u(a). Plaintiffs contend that imposing the abortion-related limitations contravenes this stated objective. To plaintiffs’ rather general assertion that the present practice is invalid because it contravenes these goals of the statute, the short answer is that it does not. As to the general policy statement in section 2151b(a), neither the Mexico City Policy nor the implementing grant clauses evinces any interference with the congressionally desired right of every country “to determine its own policies with respect to population growth.” Id. § 2151b(a). In fact, the Mexico City Policy specifically permits recipient foreign governments to continue to receive FAA funds in segregated accounts while conducting abortion-related activity with their own money. As to the principles set out in section 2151-l(b), none of the cited subsections nor any other part of this or any other act expresses or implies a congressional intent that the President shall grant all requested funds to all entities seeking “democratic participation” whether from the private sector or elsewhere. As to the expression of congressional intent in section 2151u(a), as the Second Circuit noted in rejecting this same challenge to these same limitations, that section "requires only that the Government consider the private and independent nature of private organizations which it utilizes,” Planned Parenthood Fed’n of America v. Agency for Int’l Dev., 838 F.2d 649, 654 (2d Cir.1988), not that they be immunized from any conditions on their grants. Nothing in the Mexico City Policy or the grant clauses in any fashion contravenes any of the cited findings or declarations of principle by Congress. Indeed, Congress in section 2151b(c)(1) expressly directed that “the President is authorized to furnish assistance, on such terms and conditions as he may determine.” 22 U.S.C. § 2151b(c)(1) (emphasis added). The only congressional limitation placed on this discretion is set forth in section 2151b(f). That section provides: (1) None of the funds made available to carry out this subchapter may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions. (2) None of the funds made available to carry out this subchapter may be used to pay for the performance of involuntary sterilizations as a method of family planning or to coerce or provide any financial incentive to any person to undergo sterilizations. (3) None of the funds made available to carry out this subchapter may be used to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilization as a means of family planning. Id. § 2151b(f). See Planned Parenthood Fed’n, 838 F.2d at 654. Obviously, the funding limitations under attack not only do not run afoul of the 2151b(f) limitations, but if anything, go further in the same direction. This brings us to the second of plaintiffs’ arguments: that the clause limitations are violative of the FAA. In this argument they contend that the present eligibility policy contravenes specific provisions of the Act by going further than the quoted statutory limitations. In support of this proposition, they further offer the legislative history of the 1973 amendment which added the original abortion-related restrictions to the FAA. In the course of that enactment, Senator Helms, principal sponsor of the amendment, observed, “[w]e could, in fact, go far beyond the present amendment and require all abortion activities, from whatever funds, to be stopped before our assistance could be received. But the present amendment does not do that." 119 Cong.Rec. 32,293 (1973). Plaintiffs then argüe that Senator Helms’s language indicates that Congress considered, but rejected, the policy now followed by the executive branch, and that executive policy is therefore in contravention of the act of Congress. This is simply not the case. As the Second Circuit has observed, Senator Helms’s statement does not indicate that Congress “has spoken” on the issue of whether limitations may be imposed on the use of non-federal funds. At most, Senator Helms’ statement indicates that Congress was aware that it could consider an amendment containing such limitations on non-federal funds, not that Congress considered, but chose not to adopt, such limitations. Planned Parenthood Fed’n, 838 F.2d at 655 (emphasis in original). Nothing in the statute as enacted or any reasonable interpretation of the words of the statute indicates an intent to limit the President’s discretion “to furnish assistance, on such terms and conditions as he may determine,” in the fashion argued by plaintiffs. 22 U.S.C. § 2151b(c)(l). We therefore conclude that the District Court correctly decided that subsection (f) only restricts the President’s authority to furnish assistance in the enumerated circumstances. “It does not, however, imply that the President cannot impose any other restrictions as to abortion.” DKT Memorial Fund Ltd., 691 F.Supp. at 403. Or, as another district court has concluded, “absent a specific limitation on the Executive’s authority to condition disbursal of United States funds to foreign NGOs, it must be assumed that the Congress has left intact” presidential authority to place conditions or to refuse funding to these organizations. Planned Parenthood Fed’n of America v. Agency for Int’l Dev., 670 F.Supp. 538, 544 (S.D.N.Y.1987), aff'd in relevant part, Planned Parenthood Fed’n v. Agency for Int’l Dev., 838 F.2d 649 (2d Cir.1988). B. The Administrative Procedure Act Plaintiffs’ second statutory attack is no stronger than the first. They contend that the clauses implementing the Mexico City Policy are “arbitrary and capricious” and should be set aside under the Administrative Procedure Act, specifically 5 U.S.C. § 706(2)(A). In plaintiffs’ view, AID’s “new abortion-eligibility policy” is arbitrary and capricious because “AID did not develop an evidentiary record or otherwise provide a reasoned basis for its abrupt reversal of 25 years of prior practice.” Brief for Appellants at 32. AID offers several reasons why this argument is invalid. Among them, AID contends that the grant clauses are exempt from APA review under 5 U.S.C. §§ 553(a)(1) and (2) which create exceptions to rulemaking requirements for “foreign affairs function[s] of the United States”; and “matter[s] relating to agency management ... or grants_” Certainly, these arguments are not without at least color-able merit. See National Wildlife Fed’n v. Snow, 561 F.2d 227 (D.C.Cir.1976) (applying grant exemption from rulemaking requirements to Federal Highway Administration regulations); and WBEN, Inc. v. United States, 396 F.2d 601, 616 (2d Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 240, 21 L.Ed.2d 200 (1968) (applying exemption from rulemaking requirements for foreign affairs function of the United States). But the failure of this statutory attack is far more fundamental than either of those arguments. Plaintiffs’ attack on the abrupt reversal of 25 years of prior practice” goes not to the grant clauses but to the presidential decision embodied in the Mexico City Policy itself. Thus, the decision involved is not a rulemaking by an agency, but rather a policy-making at the highest level by the executive branch. This attack does not go to the lawfulness of the policy, but rather its wisdom. In addition to the executive power vested by Article II of the Constitution, the President has power to make that change in policy, deriving from the broad language of 22 U.S.C. § 2151b(b) granting him discretion to furnish population planning assistance “on such terms and conditions as he may determine.” The APA has never been construed to grant to this or any other court the power to review the wisdom of policy decisions of the President. As we recently noted, in a different context: As the Supreme Court has stated of executive actions pursuant to express congressional grants of power, “[i]n such a case the executive action ‘would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.’ ” Palestine Information Office v. Shultz, 853 F.2d 932, 937 (D.C.Cir.1988) (quoting Dames & Moore v. Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 2991, 69 L.Ed.2d 918 (1981), which quotes Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952)). As we further observed in Palestine Information Office, If the authority accorded the executive branch when acting pursuant to a congressional grant of power is great, it is greater still in the case at bar because the [executive branch] was acting in the field of foreign affairs. Id. In the present case, where the President acted under a congressional grant of discretion as broadly worded as any we are likely to see, and where the exercise of that discretion occurs in the area of foreign affairs, we cannot disturb his decision simply because some might find it unwise or because it differs from the policies pursued by previous administrations. Particularly is this so where the area in which he acts has expressly been recognized by Congress to be "a matter of political and religious sensitivity,” 22 U.S.C. § 2151b(a), and where Congress almost five years after the announcement of the policy has enacted nothing indicating its sense that the President’s acts go beyond the granted discretion. See generally Planned Parenthood Fed’n, 838 F.2d at 655 (discussing congressional inaction following the announcement of the Mexico City Policy). Indeed, at least one court has concluded, “that the broad statutory language ... [and] the nature of the act to be reviewed, in particular its inappropriateness for judicial review, indicate Congressional intent to preclude APA review of funding decisions under § 2151b(b).” Allen Guttmacher Inst. v. McPherson, 597 F.Supp. 1530, 1537 (S.D.N.Y.1984). In light of Circuit law stated in DKT Memorial Fund Ltd., 810 F.2d at 1238, and Population Inst. v. McPherson, 797 F.2d 1062, 1068-70 (D.C.Cir.1986) (holding that the challenge to AID administrator’s determination of eligibility for AID funds was not a nonjusticia-ble political question), we do not go so far as to preclude review. We can however state with confidence that plaintiffs in the present case have offered no basis upon which we should grant such a petition for review. Therefore, we affirm the District Court on this statutory issue. III. The Constitutional Claims A. The Free Speech Claims and Standing of the Foreign NGOs Foreign NGOs, PSS and PSFP claim that “AID’S policy violates plaintiffs’ protected First Amendment rights by rendering plaintiffs ineligible to receive population assistance funds because they engage in certain activities relating to voluntary abortion, including the dissemination of information, that run afoul of AID’S policy, and by rendering plaintiffs unable to associate in AID programs with persons or entities whose abortion-related activities, including the dissemination of information, conflict with AID’S policy.” Amended Complaint at 10. In the complaint, plaintiffs do not differentiate between the asserted First Amendment rights of the FNGOs, PSS and PSFP and the DNGO, DKT. Initially, the District Court held that none of the plaintiffs had standing under the “case or controversy” requirements of Article III of the Constitution, as none of them had ever “applied to AID for funding and the challenged policy in no way prevented] them from applying for funding.” DKT Memorial Fund Ltd., 630 F.Supp. at 242. The Court concluded that plaintiffs were alleging at most a “subjective chill” which the Court held not to be “ ‘an adequate substitute for a claim of specific present objective harm or threat of future harm.’ ” Id. (quoting Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). As we noted above, we reversed the Court’s initial standing decision, after permitting plaintiffs to amend their complaint to allege “that, but for the Policy, the appellants would be eligible to receive AID funds.” DKT Memorial Fund Ltd., 810 F.2d at 1239. We then remanded with instructions that the District Court further consider the “issue of standing in light of the amended complaint.” Id. On remand, plaintiffs, in their amended complaint, asserted that they had contracted jointly to conduct a four-year comprehensive planning project in Uttar Pradesh, India, that did not involve abortion in any respect. The project, plaintiffs allege, and AID admits at least for purposes of this litigation, would be eligible for population assistance funds, but for the fact that the FNGOs, with their own funds, engage in voluntary abortion-related activities. The District Court concluded, and AID does not contest, that all plaintiffs had standing to assert the statutory claims. DKT Memorial Fund Ltd., 691 F.Supp. at 397-401. The Court further held that the FNGOs had no standing to raise the constitutional claims, reasoning that foreign nationals outside the United States under neither the “control nor supervision” of the United States “have not shown sufficient ties to the United States [to] justify protection by our first amendment.” Id. at 406. On appeal, the FNGOs assert first that they satisfy the “case or controversy” requirements of Article III, in that they had “ ‘suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)). But that is not the issue. The District Court recognized that a “case or controversy” existed for Article III purposes, but found that the FNGOs as nonresident aliens acting beyond the borders and control of the United States government were not within the zone of interests protected by our First Amendment and therefore personally lacked standing, whether or not the DNGO had such standing and whether or not the claim was otherwise cognizable. Under our jurisprudence, “[a] court may ‘refuse to determine the merits of a legal claim, on the ground that even though the claim may be correct the litigant advancing it is not properly situated to be entitled to its judicial determination.’ ” NFFE v. Cheney, 883 F.2d 1038, 1041 (D.C.Cir.1989) (quoting C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531, at 338-39 (1984)). That is to say, “[standing focuses on the party and not on the issues sought to be adjudicated.” Id. (citing Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968)). Even where the constitutional requirement of Article III standing is met, and a “case or controversy” is present, a particular plaintiff may still not have standing under the prudential requirements crafted by the judiciary. See generally Center for Auto Safety v. NHTSA, 793 F.2d 1322, 1328-1328-38 (D.C.Cir.1986). What the present question requires, and what the District Court conducted, is an inquiry as to whether prudential standing exists: that is, whether the “plaintiff’s complaint fall[s] within the ‘zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge Christian College, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). The District Court obviously concluded that the interests in free speech and freedom of association of foreign nationals acting outside the borders, jurisdiction, and control of the United States do not fall within the interests protected by the First Amendment. It is that decision that we are called upon to review. The FNGOs attempt to circumvent the question by restating it. They assert that “[t]he issue [is] whether U.S. government officials can ignore the First Amendment when they exercise authority over nonresident aliens.... ” Brief for Appellants at 37. This of course is not the issue at all. Before we can decide that government officials have improperly exercised their authority, or that improper exercise violates constitutional rights, we must find that a plaintiff with standing to assert the violation of rights is properly before the court. See generally Valley Forge Christian College, supra. We cannot say that the District Court’s decision that the FNGOs are not such plaintiffs is without support in controlling precedent. For example, in United States ex rel. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979 (1904), the Supreme Court considered the claims of an alien barred from the United States as an “alien anarchist” under 32 Stat. 1213. The alien contended that the exclusionary act was violative of his rights under the First Amendment. In ruling against his claims, the Supreme Court stated that “those who are excluded [from the United States] cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.” Id. at 292, 24 S.Ct. at 723. More recently in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), a Marxist author was denied a visa to enter the United States under the authority conferred on the Attorney General by the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D) and (G)(v), and 1182(d)(3)(A), to exclude aliens advocating, inter alia, world communism. The Court considered the challenge of certain United States nationals who asserted that their First Amendment rights to communicate with the alien were infringed. While rejecting the claim of the United States nationals on the other grounds, the Court accepted as a basic proposition that “it is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762, 92 S.Ct. at 2581. Significantly, Justice Douglas, while dissenting from the result reached by the Court, observed, “Mandel, an alien who seeks admission, has no First Amendment rights while outside the Nation.” Id. at 771, 92 S.Ct. at 2586 (Douglas, J., dissenting). We offer Turner and Mandel by way of strong example and not exhaustion for the principle that aliens beyond the territorial jurisdiction of the United States are generally unable to claim the protections of the First Amendment. See generally United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530-32, 74 S.Ct. 737, 742-43, 98 L.Ed. 911 (1954); and Harisiades v. Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512, 520, 96 L.Ed. 586 (1952). Appellants point out, correctly, that Turner, Mandel, and the other authorities cited occur in the context of the exclusion of aliens. Nevertheless, the Supreme Court has never limited its absolute wording of the principle that nonresident aliens are without First Amendment rights, e.g., Turner, 194 U.S. at 292, 24 S.Ct. at 723, to the immigration context. Further, plaintiffs and amici curiae appearing on their behalf offer cases in which aliens have asserted protections of Bill of Rights provisions other than the First Amendment. For example, in United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir.1988), cert. granted, — U.S. -, 109 S.Ct. 1741, 104 L.Ed.2d 178 (1989), the Ninth Circuit upheld a nonresident alien’s right under the Fourth Amendment to question the reasonableness of a search of his residence in Mexico conducted in part by United States agents. Similarly, in United States v. Demanett, 629 F.2d 862 (3d Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981), the Third Circuit considered a search conducted by the United States Coast Guard outside the territorial waters of the United States. That court, while noting the government had made no contention that either American citizens or Colombian nationals aboard the vessel lacked standing to claim the protection of the Fourth Amendment, assumed that all aboard the searched vessel were protected. Id. at 866. Plaintiffs and their supporting amici argue Verdugo-Urquidez particularly strongly since it proceeds on the basis that the Constitution, in that case the Fourth Amendment, controls the actions of the government, and the government therefore cannot constitutionally act in a way viola-tive of its normative principles either within or without its territorial borders. The Verdugo-Urquidez court particularly relies on Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), which taught that: The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. Id. at 5-6, 77 S.Ct. at 1225 (footnote omitted). The statement from Reid v. Covert is certainly not controlling on questions of alien rights, as it dealt with the government’s power to reach out and punish a citizen, beyond its borders. Nonetheless, the normative notion expressed is not inconsistent with traditional American expectations that the government will act consistently with the provisions of the Constitution that give it existence wherever in the world the government may be acting. Or as Justice Harlan put it, concurring in the result in Covert, “[t]he powers of Congress ... are constitutionally circumscribed. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers.” Id. at 66, 77 S.Ct. at 1256 (Harlan, J., concurring). The difficulty with this argument is not that it is unconvincing, but rather that it does not address the question before us. As we have been at pains to note, our present concern is not the cause of action, or the legality of the government conduct, but rather the standing of the FNGOs to raise that cause of action and question that conduct in court. On this issue neither Verdugo-Urquidez nor the authority upon which it relies is helpful to the FNGOs’ cause. The Ninth Circuit’s standing analysis arose in the context of a nonresident alien being brought to the United States for trial on criminal charges. The Ninth Circuit expressly distinguished the alien exclusion cases cited above, and found standing to attack the search under the Fourth Amendment only after observing that the aliens in those cases were without the borders, whereas the government had brought Verdugo-Urquidez into the country to prosecute him in a United States court for violation of the laws of the United States. It was only in that context that the Ninth Circuit concluded that he had standing. Verdugo-Urquidez, 856 F.2d at 1221-24. In short, even if we determined to follow the Ninth Circuit on its normative analysis of the effect of the Bill of Rights on extraterritorial conduct by the United States government — and certainly that analysis is well grounded in Supreme Court law and theory — we still can find in neither the Ninth Circuit decision nor the authorities on which it relies anything which takes the present case out of the zone of interest analysis discussed above. Given the language of the Supreme Court in the alien exclusion cases affording no First Amendment protection to aliens beyond the borders of the United States not within the custody or control of the United States, given nothing else to indicate that the aliens are within the “zone of interests to be protected or regulated by the statute or constitutional guarantee in question,” Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), we cannot find that the District Court erred in holding that the FNGOs were without standing to assert the constitutional claims. We will not, however, hold as the government urges, that an alien beyond the bounds of the United States never has standing to assert a constitutional claim. By way of comparison, in Cardenas v. Smith, 733 F.2d 909 (D.C.Cir.1984), we considered the claim of an alien against the United States Attorney General arising after a seizure of the alien’s Swiss bank account allegedly triggered by acts of the Attorney General in violation of the Fourth and Fifth Amendments. While we reversed the District Court’s grant of summary judgment in favor of the Attorney General, we did so stating: Nonetheless, we are not prepared today to conclude that Cardenas has standing to invoke the protection of the Constitution against actions of the American government. Given the difficulties and far-reaching consequences of a doctrine that enhances an alien’s standing to put on a constitutional mantle, we are reluctant to apply such a rationale to a case where the complaint is broadly drawn, the facts remain obscure, and where, in any event, such a conclusion may be unnecessary to the ultimate disposition of the plaintiff’s claim. Id. at 917. Similarly, in the present case, we are reluctant to announce a rule broader than that necessary to dispose of the exact question before us. We also note that our denial of standing on zone of interest considerations is informed by prior decisional law of this Circuit. We have previously held “[i]n the absence of apparent congressional,” or in this case constitutional, “intent to benefit,” the putative plaintiff “there may still be standing if some factor — some indicator that the plaintiff is a peculiarly suitable challenger ... — supports an inference that Congress,” or in this case the Framers of the Constitution, “would have intended eligibility.” Hazardous Waste Treatment Council v. United States EPA, 861 F.2d 277, 283 (D.C.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989). In the present case, we find no such factor. In what is perhaps an excess of caution to be certain that we do not err in our application of the zone of interest test, we will examine plaintiffs’ allegations as we previously did in Cardenas v. Smith, supra. There, in determining whether a litigant’s “interest enjoys the protection of the [First] Amendment ],” we noted “that this inquiry tends to meld into the question of whether [plaintiffs] ha[ve] a cause of action to enforce” the Amendment. Cardenas, 733 F.2d at 915. In making this examination of the present plaintiffs’ allegations, we note that where a lack of standing is based on our conclusion that the interests asserted fall outside the zone of interests protected by the relevant provision, as opposed to the case in which a lack of Article III standing implicates our constitutional jurisdiction, our disposition may be informed by an examination of the merits of the claim. For example, in National Maritime Union of America v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C.Cir.1987), in which a union asserted standing to bring certain claims and justiciability of certain questions, we leaped to the merits because “[o]ur resolution of these issues [standing and justiciability], which do not implicate our constitutional jurisdiction or statutory jurisdiction ... would not be dispositive in any event, because even if the [plaintiff’s] position on each of them is correct, we find that their ... claims fail on the merits.” Id. at 1238. Similarly, in the present case, any lack of standing on zone of interest grounds, would be, as we noted above, a prudential decision and not one implicating our constitutional jurisdiction. Therefore, since we, as in National Maritime Union, find the claims to fail on their merits in any event, we will proceed, like that court, to consider the merits of plaintiffs’ allegations. In the present case we further determine to address the merits of the alleged claim, because of the presence of DKT, a domestic organization, as a plaintiff. As we noted above, the complaint in this action does not clearly delineate between the First Amendment claims of the FNGOs and DKT. While the free speech claim in the complaint appears to be directed principally against interference with the alleged First Amendment rights of the FNGOs, at least in this Court, DKT argues that its free speech rights have been breached as well. While it is not clear whether the domestic plaintiff, as to whom AID certainly concedes the protection of the First Amendment asserts its first-party right to speak through its co-plaintiffs, or whether it asserts some sort of third-party standing, we need not explore the procedural niceties any further since as we have already noted the free speech claim is without merit in any event. In attempting to assert an infringement of free speech rights, plaintiffs constantly mischaracterize the policy of AID as a suppression of their viewpoint on abortion. What they actually complain of is not suppression, but rather a refusal to fund. The Supreme Court has “held in several contexts that a [government’s] decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation, 461 U.S. 540, 549, 103 S.Ct. 1997, 2003, 76 L.Ed.2d 129 (1983). For example, in Regan, the Court upheld a denial of tax deductible status to an apparently otherwise eligible nonprofit entity engaged in extensive lobbying activity. The Court recognized that lobbying is within the protection of the First Amendment and that “the government may not deny a benefit to a person because he exercises a constitutional right.” Id. at 545, 103 S.Ct. at 2001 (citing Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972)). But the Court further reasoned that “tax deductibility [is] a form of subsidy that is administered through the tax system.” Id. at 544, 103 S.Ct. at 2000. Therefore, the Court concluded that the denial of deductibility was not within the Sindermann prohibition stating that “[t]his Court has never held that Congress must grant a benefit ... to a person who wishes to exercise a constitutional right.” Id. at 545, 103 S.Ct. at 2001. Similarly, in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court upheld against constitutional attack a statutory scheme which provided funds for some but not all candidates for public office. Again, the activity in question, that is running for public office, is of a sort generally entitled to First Amendment protection. This did not mean that it was entitled to public subsidy. Id. at 93-108, 96 S.Ct. at 677. In Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959), the Supreme Court upheld a denial of tax deductibility for sums expended by taxpayers in furtherance of political campaigns for the defeat of initiative measures pending before the voters in the taxpayers’ states. That case occasioned a comment by Justice Douglas that To hold that this item of expense must be allowed as a deduction would be to give impetus to the view favored in some quarters that First Amendment rights must be protected by tax exemptions. But that proposition savors of the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State. Such a notion runs counter to our decisions.... Id. at 515, 79 S.Ct. at 534-35 (Douglas, J., concurring). It is just that long-rejected notion that plaintiffs now assert as their free speech claim in the present case. Plaintiffs attempt to couch their claim in terms of the imposition of an “unconstitutional” condition on the receipt of a benefit, a practice forbidden in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), and Perry v. Sindermann, supra. But the present case does not fit that mold. In Speiser the California Constitution denied any exemption from any tax imposed by the state or any county, city district, political subdivision, authority, board, bureau, commission, or public agency of the state to any “person or organization which advocate^] the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocate[d] the support of a foreign government against the United States in the event of hostilities_” Cal.Const. art. XX, § 19, quoted in Speiser, 357 U.S. at 516, 78 S.Ct. at 1336. To effectuate that constitutional amendment, the California legislature adopted a statute requiring any taxpayer, in order to qualify for a tax exemption, to sign a statement on his tax return declaring that he did not engage in the activities set forth in the constitutional provision. While the Court assumed “without deciding that California may deny tax exemptions to persons who engage in proscribed speech,” id. at 519-20, 78 S.Ct. at 1338-39, the Court invalidated the statutory scheme, holding that “when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.” Id. at 528-29, 78 S.Ct. at 1343-44. The Speiser case, therefore, while standing for the proposition that the First Amendment forbids the imposition of unconstitutional burdens on the claiming of a benefit, speaks not at all to an act of government which does nothing other than refuse to subsidize the exercise of a First Amendment activity. In Speiser there was no claim that the funds involved in the exemption were going to promote First Amendment activity, nor that the funds rendered exempt for other taxpayers not engaged in the First Amendment activity would be used for any other constitutionally protected purpose. The question of subsidy simply was not before the Speiser Court, nor does the Speiser decision speak to anything which informs our decision in the present case. Neither does Perry v. Sindermann support plaintiffs’ argument. In that case, an employee of a state college was denied tenure. The employee claimed that his denial of tenure was in retaliation for his exercise of his free speech rights, specifically, in publicly espousing positions unpopular with the Board of Regents. In holding that he had stated a claim for relief, the Court held that even where a person has no “right” to a government benefit, the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Perry, 408 U.S. at 597, 92 S.Ct. at 2697. The contrary rule, the Court observed, would allow the government to penalize and inhibit the exercise of First Amendment rights. Again, the present case is distinguishable. In the present case we have not a punishment for the exercise of a constitutional right, but at most a refusal to subsidize the exercise of free speech rights, and again, for the reasons set forth above, the claim must fail. Plaintiffs and their amici put forth other arguments designed to take their facts out of the general rule of Cammarano and Regan that a refusal to subsidize the exercise of their right is not an infringement of that right. First, they contend that the limitations in the present case are invalid because they constitute viewpoint-based discrimination. That is, they would have us strike the regulations because “AID ... continues to underwrite the association of domestic grantees with foreign affiliates hostile to abortion rights,” but “prohibits domestic grantees from subgranting AID funds to foreign organizations that share [their] support of abortion rights.” Brief for Amici Curiae Association for Voluntary Surgical Contraception, et al., at 19. But the settled law is to the contrary. The fact that the government subsidizes one constitutionally protected or constitutionally permissible activity is no reason that it has to subsidize another. Here the government does not seek to punish the expression of a viewpoint, as in Speiser, but merely declines to subsidize one. In this respect, the present facts parallel those of Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). There the Court considered the regulation of the Connecticut Welfare Department limiting Medicaid benefits for abortion during the first trimester to those that were medically necessary, excluding from subsidy voluntary abortions, similar to the abortion-for-family-planning-purposes procedures excluded in the present case. The District Court opinion under review there held that the exclusion constituted unconstitutional discrimination, reasoning that since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), had established a constitutional right to abortion, the Connecticut program infringed the pregnant mother’s constitutional right by “weight[ing] the choice of the pregnant mother against choosing to exercise her constitutionally protected right” and “thus infringe[d] upon a fundamental interest.” Roe v. Norton, 408 F.Supp. 660, 663-64 (D.Conn.1975). The Supreme Court however, noted that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher, 432 U.S. at 475, 97 S.Ct. at 2383. The Supreme Court went on to hold that the state could fund childbirth while refusing to fund abortion since its refusal “place[d] no obstacles ... in the pregnant woman’s path to an abortion.” Id. at 474, 97 S.Ct. at 2382. Likewise, in the present case, the decision of the federal government to fund certain population planning activities does not require it to fund others, such as involuntary sterilization or abortion. Here, again, the AID program has placed no obstacles in the way of the FNGO’s or DKT's funding of abortions and abortion-related activity that were not there before the FAA funding ever began. Other parallel authority is voluminous. For example, in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Court considered the constitutionality of the Hyde Amendment, Pub.L. No. 96-123, § 109, 93 Stat. 926, which limited the use of federal funds for nontherapeutic abortions. Relying in part on Maher, the Court again concluded that “the Hyde Amendment, like the Connecticut welfare provision at issue in Maher, represents simply a refusal to subsidize certain protected conduct. A refusal to fund protected activity, without more, cannot be equated with the imposition of ‘penalty’ on that activity.” Harris, 448 U.S. at 317 n. 19, 100 S.Ct. at 2688 n. 19. See also Webster v. Reproductive Health Servs., — U.S. -, 109 S.Ct. 3040, 3052, 106 L.Ed.2d 410 (1989). In Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), the Court similarly rejected an argument that the right to maintain private or parochial schools did not create the right to public funding of those schools, saying, “[i]t is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.” Id. at 462, 93 S.Ct. at 2809. See also Planned Parenthood v. Arizona, 718 F.2d 938 (9th Cir.1983). Similarly, in the present case, the AID program places no obstacles in the way of those who would perform or promote abortions that were not there before the commencement of FAA funding. It, like the programs upheld in the cited Supreme Court cases, simply represents an election to fund some communicative and associational acts, while not funding all. Plaintiffs contend that this choice is an invalid one because the government has offered no compelling interest for its policy choice, but again this is not the law. The Supreme Court stated in Maher v. Roe that the state was “not required to show a compelling interest for its policy choice to favor normal childbirth,” 432 U.S. at 477, 97 S.Ct. at 2385, and neither is the government in the present case. This simply represents a policy choice, not an invidious discrimination. The government must make policy choices and constantly makes policy choices as to which human activities it will subsidize and which it will not. These are by definition viewpoint-based. That is, it subsidizes the activities consistent with the viewpoints of the persons who engage in those activities, and inconsistent with those who do not, and vice versa. Certainly some would say that the Surgeon General’s activities against smoking discriminate against their personal viewpoints in favor of smoking. Never has a constitutional challenge to this program been sustained. See generally Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (D.D.C.1971), aff'd, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972) (upholding ban on telecommunications cigarette advertising mandated by 15 U.S.C. § 1335, the same chapter which mandates Surgeon General warning against smoking). The same, as noted in the above-described cases, is true in the area of abortion. If policy choices are made on philosophical and political viewpoint-based foundations in domestic affairs, how much truer must this be in the area of foreign policy. To hold that the United States government cannot make viewpoint-based choices in foreign affairs would be unthinkable. As the Supreme Court has frequently reminded us, “many [foreign affairs] questions uniquely demand single-voiced statement of the Government’s views.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663 (1962) (citing Doe v. Braden, 57 U.S. (16 How.) 635, 657, 14 L.Ed. 1090 (1854)). To hold that the government cannot make viewpoint-based choices in foreign aid and foreign affairs would not only depart from settled precedent, but would work much mischief. While the examples are probably numberless, three will suffice. First, in light of the congressional finding that the “policy of apartheid is abhorrent and morally repugnant,” 22 U.S.C. § 5020, it is altogether fitting and proper that the United States support policies “encouraging the government of South Africa to ... establish a timetable for the elimination of apartheid laws.” 22 U.S.C. § 5011(b). It is unthinkable that in order to make this encouragement constitutional, the government would likewise have to underwrite efforts to encourage the continuance of the abhorrent and morally repugnant system of apartheid. Likewise, chapter 43 of title 22 of the United States Code authorizes the Board for International Broadcasting “to make grants to RFE/RL, Incorporated [formerly Radio Free Europe and Radio Liberty], to carry out the purposes set forth in [22 U.S.C. § 2871].” 22 U.S.C. § 2873. The referenced purposes include the “pro-mot[ion of] the right of freedom of opinion and expression, including the freedom ‘to seek, receive, and impart information and ideas through any media and regardless of frontiers,’ in accordance with article 19 of the Universal Declaration of Human Rights.” 22 U.S.C. § 2871(1). Hardly anyone would assert that this title is unconstitutional unless it also requires the United States to make grants opposing the rights set forth in section 2871. Perhaps the most telling example of the foreseeable serious results of such a holding lies very close to the hearts of plaintiffs. If the United States cannot constitutionally fund international communication save on a viewpoint-neutral basis, then either the very population planning funding program in which plaintiffs seek to participate is constitutionally invalid, or, grants must be equally available to the significant number of domestic and foreign groups opposing population planning. In short, we have belabored this topic at least long enough, and conclude that a policy-based viewpoint discrimination in the making of grants to foreign nongovernmental organizations is not unconstitutional. Plaintiffs finally argue that the limitations on the grants to the FNGOs should fall outside the rule of the denial of subsidy cases because: (1) the DNGOs are not permitted to subgrant funds to the FNGOs; and (2) the FNGOs, unlike foreign governments and DNGOs, are not left free to pursue their abortion-related goals with private funds while receiving government grants for other projects in segregated accounts. The first of these arguments, while perhaps a substantial one in favor of the DNGOs’ right of association (see Section 111(B)(1), infra) hardly bears mention in reference to the alleged free speech rights of the FNGOs. It would make little sense for the government to impose a policy-based limitation on the use of its grants, and yet permit a complete end-run around the limitation by granting the same funds to domestic entities who in turn subgrant them to the foreign recipients without imposing the same limitations. As the Supreme Court recognized in Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), an indirect subsidy such as tax exemption is subject to the same constitutional analysis as a direct subsidy. As the Supreme Court elsewhere observed, “[t]he economic effect of direct and indirect assistance often is indistinguishable.” Grove City College v. Bell, 465 U.S. 555, 565, 104 S.Ct. 1211, 1217, 79 L.Ed.2d 516 (1984). We can hardly compel the government to subsidize indirectly that which it has chosen not to subsidize directly. The other objection is barely more substantial. When the government speaks in international affairs, it speaks not only with its words and its funds, but also with its associations. It would certainly affect the foreign relations communications of the United States if it granted, for example, $200,000 to PSS and PSFP for distinct no-nabortion projects the day before the same two FNGOs spent $200,000 to promote abortions. The Administration can hardly be faulted for assuming that this would mix the message of the Mexico City Policy. True, the Policy permits foreign governments, as opposed to NGOs, to continue to receive grants while funding abortion-related activities with their own funds, provided only that they use segregated accounts. See Policy Statement, supra. This recognition of the sovereignty and self-determination rights of other states, consistent with the congressionally declared policy of 22 U.S.C. § 2151b(a), hardly compels a public association between the United States government and private foreign organizations pursuing goals at odds with those of United States foreign policy. Neither does the difference in treatment in FNGOs, such as PSS and PSFP on the one hand, and DNGOs, such as DKT on the other, compel the United States to change its policy to treat the foreign entities as it would domestic ones. A recognition of a right, whether or not constitutionally based, for American entities to pursue certain goals with their own funds while receiving largess from the government for other pursuits does not in any way mandate that the same treatment must be afforded foreign entities. We observe again, that a nation speaks in foreign affairs not only by the express messages that it sends, but by its choice of foreign entities with whom it will associate. Plaintiffs have shown us no basis upon which we may dictate that choice to the political branches, in this case the Executive, on this particular matter of foreign affairs, an area in which, as we already noted, the Executive receives its greatest deference, and in which we must recognize the necessity for the nation to speak with a single voice. See Palestine Information Office, 853 F.2d at 937; Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706. Although amici for plaintiffs assert that the means employed to achieve the policy goals are invalid because they are not the “least restrictive,” this avails them nothing. Though they cite the use of segregated accounts in the funding of foreign governments and DNGOs as a less restrictive method, that is essentially irrelevant to the immediate question. As Harris v. McRae teaches, this sort of viewpoint-based subsidization decision is not “predicated on a suspect classification,” and is subject only to a rational relationship test not the sort of strict scrutiny that may require use of the least restrictive means. 448 U.S. at 323, 100 S.Ct. at 2691. Accord Maher v. Roe, 432 U.S. at 469-74, 97 S.Ct. at 2380-83. In sum, we find that the FNGOs do not enjoy standing to assert the constitutional claims under any application of the zone of interest analysis. B. DKT’s Freedom of Association Claims 1. AID Restrictions on Subgrants In addition to the claims asserted that AID’s implementation of the Mexico City Policy infringes the supposed constitutional rights of the FNGOs, the DNGO DKT Memorial, asserts that the Policy and the implementing grant clauses unconstitutionally burden its rights to freedom of association. Its argument is twofold. First, DKT asserts that the provision forbidding subgrants by domestic grant recipients to FNGOs who are ineligible to receive grants directly interferes with the domestic recipient’s right to associate with FNGOs of its choice in nonabortion-related projects. The concrete factual setting for the assertion of this claim arises from the project in Uttar Pradesh, India, described in the amended complaint. All parties agree for purposes of the present litigation that the project would be eligible for subgrant funds, but for the unwillingness of the FNGOs to comply with AID’s abortion-related restrictions. DKT asserts that but for t