It's not a standard. As Professor Grant explained, the standard is “marked departure”. What is given in the subsection we're criticizing is factors. It's always the question, why these two factors? What were all of the other factors that you decided not to include in the law, and why? How are these factors to be weighed? That's what we think will lead to inconsistent and problematic application.
On October 27th, 2022. See this statement in context.