FYI - Had a conversation with Van Valkenburgh (regarding thoughts on 1h:20m here https://www.c-span.org/video/?442556-1/hearing-focuses-cryptocurrency-markets&start=4957 )
Referring to your point >Regulators and courts distill to the underlying economic reality, which in the case of ICOs, always have a profit expectation. Irrelevant to utility vs speculative value.

"1) Some profit expectation can tolerated without the asset being classified as a security if (a) it's combined with other motivations like use (e.g. buying a fancy townhouse in NYC); or if (b) profitability largely beyond the control of the seller (e.g. selling gold). also...

you can separate pre-sale agreements from the actual tokens/coins that result once network is running. The agreement could be an investment contract per Howey but the delivered tokens can be the fruits of the agreement (not the agreement itself).

He believes the howey test is a test for an "investment contract" not for the potentially desirable things delivered as promised in a contract.

-dwgscale