Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), established the courts' unwillingness, except in limited circumstances, to second-guess an agency's enforcement decisions. In Chaney, the Supreme Court rejected a challenge by death row inmates to the Food and Drug Administration's ("FDA") failure to undertake an enforcement action to bar the state's use as a lethal injection of a drug that had not been approved for that purpose. The Court declined to review the FDA's decision, stating that an agency's decision not to bring an enforcement action was presumptively nonreviewable. The Court cited three reasons: first, the decision involves a "complicated balancing of factors," including the likelihood of success and the best use of agency resources; second, when an agency refuses to act, it generally does not exercise coercive power over an individual's liberty or property rights; and third, an agency's decision to institute enforcement proceedings was analogous to prosecutorial discretion and should be accorded similar deference. Id. at 831-32, 105 S.Ct. at 1655-56. The Court cautioned, however, that the presumption of nonreviewability "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. It also noted the possibility that the presumption might not apply where the agency refused to institute proceedings on the mistaken belief that it lacked jurisdiction or where the agency had " 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Id. at 833 n. 4, 105 S.Ct. at 1656 n. 4. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Court considered 21 U.S.C. Sec. 372, providing that "the Secretary of the Food and Drug Administration is authorized to conduct examinations and investigations." The Chaney Court asserted that it could meaningfully construe the Administrative Procedure Act, 5 U.S.C. Sec. 701(a)(2), but appeared to rely on the severely criticized5 "no law to apply" standard stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Court did not directly utilize the "no law to apply" test to resolve the case, but instead analogized the doctrine of prosecutorial discretion to the issue of agency enforcement actions and held that decisions not to enforce regulatory statutes are unsuitable for judicial review. 105 S.Ct. at 1656. Such decisions in the Court's view involve a "complicated balancing of a number of factors which are peculiarly within its expertise" and merit a presumption of unreviewability. Id. In Chaney, the respondents could not even point to a binding agency rule of the FDA as providing a guideline for informed judicial review. U.S. at 105 S.Ct. at 1658. Several of the factors, particularly Sec. 9.30(a),(d) and (e), are not factors "peculiarly within the expertise" of the Commodity Futures Trading Commission ("CFTC"), Chaney, U.S. at 105 S.Ct. at 1656, and it would seem that an aggrieved party could make a strong showing on the applicability of the five factors, advisory though they may be, to indicate an abuse of discretion.