(dissenting). In Boreali v Axelrod (71 NY2d 1 [1987]), we invalidated a regulation on indoor smoking promulgated by a state health agency on the ground that it was an exercise of legislative rather than regulatory authority, and was therefore a violation of the separation-of-powers doctrine. Today the Court again declares that a controversial regulation runs afoul of separation of powers. In so doing, the majority misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century. Neither Boreali nor any other doctrine in our jurisprudence compels this unhappy result. I respectfully dissent.
I.
During his third mayoral term, New York City Mayor Michael Bloomberg made the fight against obesity, especially among children, a top priority for his administration. The skills and powers of many New York City agencies were brought to bear, including the New York City Departments of Education, Transportation, Parks and City Planning. The most active agency, though, was the New York City Department of Health and Mental Hygiene (the Department), which initiated and *703worked on a host of public health programs aimed at improving the nutrition and physical fitness of New York City residents (see generally Reversing the Epidemic: New York City Obesity Task Force Plan to Prevent and Control Obesity [May 2012]).
In June 2012, the Department proposed a rule to the New York City Board of Health (hereafter, generally referred to as the Board) for inclusion in New York City’s Health Code. That rule, which the Board calls “the Portion Cap Rule” and petitioners, “the Soda Ban” (hereafter, generally referred to as the Rule), set a ceiling on the serving size of certain kinds of sugary drinks in food service establishments historically regulated by the Department (see NY City Health Code [24 RCNY] § 81.53). Other kinds of drinks and establishments were excepted from the regulation’s coverage (see id.).
In July 2012, the Board held a public hearing on the proposed rule and received voluminous public comments. After considering these comments, the Board voted unanimously to approve the Rule as proposed by the Department, and it was added to the Health Code in September 2012. Petitioners’ lawsuit followed one month later. They argued that the Board had acted beyond its delegated power in adopting the Rule, and asked the court to restrain the Board from enforcing the Rule on the ground it was ultra vires; to declare that the delegation of power to the Board in the New York City Charter (the City Charter) violated article IX, § 1 (a) of the New York State Constitution, which provides that every local government “shall have a legislative body elective by the people thereof,” to the extent that the City Charter authorized the Board to adopt the Rule; or to restrain the Board on the basis it had acted arbitrarily and capriciously in adopting the Rule.
As an initial matter, correct resolution of this appeal depends upon an accurate understanding of the source and extent of the Board’s authority. Petitioners take the position that the Board’s power is delegated by the New York City Council (the Council) under the City Charter. Similarly, Supreme Court examined the City Charter’s history to conclude that the Board has always been a city administrative body, chiefly concerned with infectious disease and harmful substances. The Appellate Division appears to have accepted this conclusion, chiding the Board for not declaring sugary drinks “inherently unhealthy” before regulating them (110 AD3d 1, 11 [2013]). And now the majority chimes in that the Board derives its authority “like that of any other administrative agency” from the City Charter, and faults *704the Board for presuming to analogize its unique powers to those of a legislative body (see majority op at 695).
But the history of the City’s approaches to the challenges of public health supports the Board’s portrayal of its authority. As the Board points out, whether those powers are “characterized as legislative or regulatory in nature” is somewhat beside the point because, in either event, its “authority is broad, and its special structure allows serious issues of public health to be addressed” expeditiously (emphasis added). As discussed in detail in this opinion, the Board’s powers to enact substantive rules and standards in the area of public health derive from state— not local — law. Thus, the Board is not required to stay its hand absent authorization from the Council to regulate sugary drinks. The only question on this appeal should be whether the Board, in adopting the Rule, acted reasonably within the bounds of its state-delegated powers.
II.
Historical Overview
The earliest public health regulations in New York City (the City) focused on the quarantine and inspection of ships attempting to call at the harbor. State statutes provided for this process in some detail, and empowered the governor or the mayor to give the green light to waiting vessels (see e.g. L 1784, ch 57; L 1794, ch 53). In 1796, the New York State Legislature shifted these powers to an appointed “health officer” and appointed “health commissioners,” and also directed physicians to begin reporting cases of infectious disease to these officials (see L 1796, ch 38). The legislature also provided that the mayor and the common council could make “bye-laws” for clearing and filling streets or lots, and for removing noxious or dangerous industries or businesses to protect the public health (see id.). In short order the power to make these “bye-laws” was moved by state statute to the appointed health officials (see L 1798, ch 65).
The term “board of health” first appears in state statutes in 1811 (see L 1811, ch 175). Throughout the first half of the 19th century, the New York State Legislature passed detailed laws expanding the procedures and powers of this predecessor of the modern-day Board, including the regulation of certain products within city limits, such as animal hides and cotton (see e.g. L 1820, ch 229; L 1823, ch 71, § 39). In addition to specific directives, the *705legislature also included broad grants of power to regulate public health generally; for example, authorizing all existing boards of health “[t]o make regulations, in their discretion, concerning the place and mode of quarantine;. . . and all such other regulations as they shall think necessary and proper for the preservation of the public health” (L 1832, ch 333, § 5 [4]).
Then followed a brief period where public health regulation was entrusted to elected officials. In 1850, the legislature directed that the Board would consist not of appointees, but of the mayor and the members of the common council, who would sit as the Board and would assume all responsibilities previously entrusted to that body (see L 1850, ch 275). This experiment was short-lived: the legislature returned the Board’s composition to a group of appointed experts in 1866, this time to sit as the head of the newly-minted Metropolitan Sanitation District, which included the counties of New York, Kings, Westchester, and Richmond.
The enabling statute’s text leaves no doubt about the separate authority vested in the Board, stating that
“said board shall also possess . . . throughout said district, all the power and authority for the protection of life or health, or the care or preservation of health, or persons diseased or threatened therewith, conferred by any law or ordinance . . . upon the Mayor, Common Council, Board of Health, or the Health Officers . . . All the aforesaid powers are to be possessed and exercised as fully as if herein repeated and separately conferred upon said Board” (L 1866, ch 74, § 12).
The statute also explicitly empowered the Board to “enact such by-laws, rules and regulations as it may deem advisable, in harmony with the provisions and purposes of this act” (L 1866, ch 74, § 20). Although the Metropolitan Sanitation District itself was also short-lived — and ahead of its time — the fundamental structure established by the 1866 statutes has largely endured.
In 1870, the District was disbanded and its powers (at least in the City) were transferred wholesale to the new Department of Health, with, again, the Board at its core (see L 1870, ch 137, § 90; L 1870, ch 383, § 26). In 1873, the “by-laws, rules and regulations” mentioned in 1866 were given a formal title, the “Sanitary Code,” and the Board was, again, vested by the state legislature with the sole power to amend and modify these rules *706(see L 1873, ch 335, § 82). Throughout the remaining decades of the 19th century, the legislature repeatedly expanded and reaffirmed the Board’s powers and independence in the City (see e.g. L 1883, ch 430; L 1882, ch 410, § 278; L 1874, ch 636).
Consistent with the state legislature’s actions, we took an expansive view of the Board’s powers throughout this period. In Metropolitan Bd. of Health v Heister (37 NY 661 [1868]), we heard four consolidated cases in which the defendants argued that the Board was without power to pass ordinances regulating the driving and slaughtering of cattle within city limits, or to hold summary adjudications penalizing violations of these rules (id. at 665). The legislature had given no direction to the Board concerning livestock regulations in the 1866 statute, although it had supplied extensive instructions on other matters. Nevertheless, after an examination of statutory history, we concluded that
“[t]hese acts show that, from the earliest organization of the government, the absolute control over persons and property, so far as the public health was concerned, was vested in boards or officers, who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law, and that juries had never been used in this class of cases. The governor, the mayor, health officers under various names, were the persons intrusted with the execution of this important public function; and they were always empowered to act in a summary manner” (Heister at 670; see also Polinsky v People, 73 NY 65, 69-70 [1878] [“That the Legislature in the exercise of its constitutional authority may lawfully confer on boards of health the power to enact sanitary ordinances, having the force of law within the districts over which their jurisdiction extends, is not an open question. This power has been repeatedly recognized and affirmed”]).
The consolidation of various municipalities into the New York City we know today began in 1897 with passage of the first Greater New York City Charter (see L 1897, ch 378). That charter established a statutory framework for the Board that is notably similar to both the reforms of 1866 and the current City Charter. It provided for a department of health, with a board of appointed officers as its head (see 1897 City Charter § 1167); it *707then specified the powers and duties of each, first in broad terms, stating as follows:
“All the authority, duty and powers heretofore conferred or enjoined upon the health departments, boards of health, health and sanitary officers ... in any of the territory now within or hereafter to become a part of The City of New York . . . are hereby conferred upon and vested in and enjoined upon, and shall hereafter be exclusively exercised in The City of New York by the department of health, and board of health, created by this act” (1897 City Charter § 1168).1
As the preceding discussion demonstrates, by the dawn of the 20th century, the legislature and the courts had long understood that these consolidated powers were broad in scope, and— importantly for this appeal — that the Board could act independently within its mandate from the legislature. Further reinforcing this interpretation is the language enabling the Board to create, amend and enforce the Sanitary Code; specifically,
“[s]aid board of health is hereby authorized and empowered, from time to time, to add to or to alter, amend or annul any part of the said sanitary code . . . The board of health may embrace therein all matters and subjects to which, and so far as, the power and authority of said department of health extends, not limiting their application to the subject of health only” (1897 City Charter § 1172).
This language continued through decades of consolidations and amendments of the City Charter, renaming of departments and renumbering of charter provisions (see e.g. 1901 City Charter §§ 1168, 1172; 1938 City Charter §§ 556, 558 [b], [c], [f]; 1961 City Charter §§ 556, 558 [b], [c], [f]).
Our interpretation of these provisions remained constant. We repeatedly affirmed the broad nature of the powers vested in and duties conferred upon the Board by the New York State Legislature (see e.g. People v Blanchard, 288 NY 145, 147 [1942] [The Sanitary Code (now the Health Code) may, therefore, “be taken to be a body of administrative provisions sanctioned by a *708time-honored exception to the principle that there is to be no transfer of the authority of the Legislature”]; Matter of Bakers Mut. Ins. Co. of N.Y. [Department of Health of City of N.Y.], 301 NY 21, 27 [1950] [the legislature has specified that “(t)he Sanitary Code of the City of New York (now the Health Code) is to have within that city the force and effect of State law”]; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234, 237 n 1 [1975] [“(T)he Board of Health has been recognized by the Legislature as the sole legislative authority in the field of health regulation in the City of New York ” (emphasis added)]). As the Board points out in its briefing here, we have often characterized its powers as “legislative” (see e.g. Grossman v Baumgartner, 17 NY2d 345, 351 [1966] [“The deduction is clear from section 558 of the City Charter — which empowers the Board of Health to legislate in the field of health generally, including the control of communicable diseases . . . that the Legislature intended the Board of Health to be the sole legislative authority within the City of New York in the field of health regulations as long as those regulations were not inconsistent with or contrary to State laws dealing with the same subject matter” (emphases added)]), and “well-nigh plenary” (see People ex rel. Knoblauch v Warden, 216 NY 154, 162 [1915]; see also Paduano v City of New York, 45 Misc 2d 718, 721 [Sup Ct, NY County 1965], affd on op below 24 AD2d 437 [1st Dept 1965], affd 17 NY2d 875 [1966], cert denied 385 US 1026 [1967] [lower court cited to and quoted from the Report of the 1936 New York City Charter Revision Commission (at 38), which stated that “(b)y its power to adopt a sanitary code the Board has plenary powers of legislation” (emphasis added)]).
Petitioners’ Contentions
This review of statutes and cases puts paid to petitioners’ key contentions. First, Supreme Court’s interpretation of the Board’s power was much too narrow. It is true that the statutes empowering the Board have listed specific areas of responsibility, particularly with regard to communicable diseases, as they do today. But the most historically consistent reading of this fact is that the legislature has entrusted the Board to act with a great deal of discretion, while also ensuring that it will address specified areas of concern, and has provided procedures for doing so. That the residents of New York City no longer count typhoid and dysentery among their chief health concerns is a sign that those scourges have been conquered, not a ground for *709preventing the Board from turning its attention to contemporary public health threats.
Second, petitioners insist that the expansive language that our opinions have used to describe the Board’s power was “stray” or “imprecise”; the majority dismisses our depiction of the Board’s powers in Grossman and Schulman as mere “passing references” (majority op at 695). But it is impossible to wish away the large body of case law in which we have repeatedly described the source of the Board’s delegated authority (the New York State Legislature) and its extent (as broad as it needs to be to protect public health). While it may sound odd in the context of modern-day administrative law to call an agency’s authority “legislative,” the Board’s authority is quite clearly at least “nearly legislative.” Our many statements to this effect simply recognized what the state legislature has expressed through nearly two centuries of consistent statutes.
Turning to more recent history, petitioners argue that the significant amendments to the home rule regime enacted in 1964 have somehow altered the Board’s fundamental authority. In particular, they point out that under these statutes, local legislatures can pass laws relating to the “safety, health and well-being of persons” within their jurisdiction (see Municipal Home Rule Law § 10 [1] [ii] [a] [12]), and that this local power is not explicitly restricted (see Municipal Home Rule Law § 11 [preempting local laws relating to certain topics such as education and labor]). But the Municipal Home Rule Law’s savings clauses explicitly preserve the power of any existing “board, body or officer,” and continue the force and effectiveness of any existing laws “until lawfully repealed, amended, modified or superseded” (Municipal Home Rule Law §§ 50 [3]; 56 [1]).
Finally, petitioners contend that reforms to the Charter in 1989 stripped the Board of independent authority, even in its traditional realm; the majority seems to agree (see majority op at 694 n 1). The 1989 revisions to the Charter eliminated the former Board of Estimate from city governance and established the City Administrative Procedure Act. Petitioners theorize that because these revisions put such emphasis on the principle that the Council is the City’s sole legislative authority, the Board perforce operates under a delegation from the Council. This, of course, is an argument by implication, as it does not — because it cannot — rely on any express statement of law.
The 1989 revisions were concerned with the particular problems presented by the former Board of Estimate, and a lack *710of minority representation in the Council (see Final Rep of NY City Charter Revision Commn, Jan. 1989 — Nov. 1989 at 1 [1990] [hereinafter Revision Report])- The Board of Estimate was a body composed of the mayor, the city comptroller, the council president and the five borough presidents, and had been a part of city governance since at least the turn of the century (see 1897 City Charter § 226). By 1989 the Board of Estimate was responsible for the budget, land use, franchising and city agency contracting, giving it extensive power, particularly at the expense of the Council (Revision Report at 7). This was especially vexing for the City’s substantial minority populations, which struggled to send representatives to the top positions that made up this powerful body (see id. at 8). In 1981, residents and voters in Brooklyn brought a lawsuit challenging the Board of Estimate as unconstitutional. They were ultimately successful in the United States Supreme Court, which struck down the charter provision constituting the Board of Estimate as a violation of the Fourteenth Amendment (see Board of Estimate of City of New York v Morris, 489 US 688, 690 [1989]).
Accordingly, the Charter Revision Commission focused its attention on whether to retain the Board of Estimate, and how to increase representation in city government. In the end, it recommended the dissolution of the Board of Estimate, an increase in Council districts from 35 to 51, and a reapportionment of the various powers the former body had once wielded (see generally Revision Report). Nowhere in this report, or in any of the amendments to the Charter approved by voter referendum in 1988, is there any reference to the Board or the Department. No doubt it is true, as petitioners and their supporting amici curiae assert, that the 1989 revisions wrought important changes in city governance. But in light of the Board’s very clear history, it cannot be true that unrelated reforms to the Charter silently switched the Board’s source of delegated powers from the state legislature to the Council.
In sum, review of the Board’s history can lead to only one conclusion: its authority to regulate the public health in the City is delegated by the New York State Legislature, and its regulations have the force and effect of state law. The delegation granted by the state is and always has been very broad. Of course, nothing prevents the Council from passing public health legislation if it sees fit to do so. But in light of the Board’s independent authority, delegated to it by the legislature, it is of no legal consequence that the Council has not affirmatively authorized Rule 81.53, or the regulation of sugary drinks in general.
*711And until controversy erupted over the Rule, the Board’s independent authority in the sphere of public health was well understood. For example, on December 5, 2006 the Board adopted a rule banning the use of all but tiny amounts of artificial trans fat in restaurant cooking in the City, effective January 10, 2007 (see NY City Health Code [24 RCNY] § 81.08). The Council some months later adopted a local law, effective July 1, 2007, amending the City’s Administrative Code to add provisions consistent with the Board’s trans fat rule (Administrative Code of City of NY § 17-192). In short, rule 81.08 was effective in January 2007, although the Council had not authorized the regulation of trans fats at the time.
The majority essentially argues that it cannot be true that the Board may act independently of the Council in the area of public health because, otherwise, what would happen if “the Board . . . pass[ed] a health Taw’ that directly conflicted with a local law of the City Council”? (Majority op at 695.) The answer is simple: if a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board’s action trumps the Council’s.2 While my colleagues in the majority may be troubled by this state of affairs, it is not their proper role to change it. The elected state legislature granted the Board the powers that it exercises. If the electorate of the City of New York desires to divest the Board of authority to act independently of the Council in matters of public health, the appropriate and democratic response is amendment of the City Charter.
III.
Boreali
Much of the debate in this case has focused on our decision in Boreali. This opinion is viewed as having an outsized impact on New York law, in no small part because it suggests that we are one of the few jurisdictions with a “strong” non-delegation doctrine, at least in the eyes of some commentators (see e.g. Borchers & Markell, New York State Administrative Procedure and Practice § 5.3 at 143-145 [2d ed 26 West’s NY Prac Series 1998]; David Super, Against Flexibility, 96 Cornell L Rev 1375, 1387 n 32 [2011]; Gary Greco, Standards or Safeguards: A Survey of *712the Delegation Doctrine in the States, 8 Admin LJ Am U 567, 581 [1994]). Several academic amici curiae have urged the Court to disavow Boreali, arguing that it puts a stranglehold on reasonable agency rulemaking. This should not be necessary, although it is important to understand Boreali properly, and to avoid applying its reasoning too rigidly.
First, the lower courts and the parties have approached the four “coalescing circumstances” that persuaded us in Boreali that the State Public Health Council had gone too far as though they are four prongs of a hard-and-fast test. They have marched through these four “Boreali factors,” run the facts of this appeal through each one, checked “pass” or “fail,” and tabulated the total. This is not what the decision mandates. While we referred to these four factors in some later cases (see Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169-170 [1993]; Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 346 [1991]), we have never treated them as requirements, and, indeed, we have generally not addressed them at all in separation-of-powers analyses (see e.g. Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 864 [2003]; Bourquin v Cuomo, 85 NY2d 781, 787 [1995]; Matter of Campagna v Shaffer, 73 NY2d 237, 243 [1989]). And in those cases where we have discussed the four Boreali factors, we have not hesitated to set aside certain of them as irrelevant in the context of the delegation then under review (see Rent Stabilization Assn., 83 NY2d at 170 [disregarding legislature’s failure to act on a particular policy issue]; Health Facilities Assn., 77 NY2d at 348 n 2 [same]).
The proper approach in any separation-of-powers analysis is therefore flexible and case-specific, addressing each agency or executive action in light of the relevant legislative delegation it invokes (see Bourquin, 85 NY2d at 784-785; Clark v Cuomo, 66 NY2d 185, 189 [1985]; Matter of Levine v Whalen, 39 NY2d 510, 515 [1976]). Boreali represents a situation where a particular agency had taken a particular action that, in view of its particular delegation, “usurped the Legislature’s prerogative” (Boreali, 71 NY2d at 11).
That is not the case here. The legislature has directed the Board to oversee and protect the public health of the City of New York by enacting rules in the Health Code. Those rules extend to all responsibilities within the competence of the Department, including “the preservation of human life,” “the care, promotion and protection of health,” the “control of *713communicable and chronic diseases and conditions hazardous to life and health,” and “supervision] and regulation of] the food and drug supply of the city and other businesses and activities affecting public health in the city [to] ensure that such businesses and activities are conducted in a manner consistent with the public interest” (City Charter § 556 [a] [1]; [c] [2], [9]). This delegation is no less specific than the one we approved in Matter of Levine v Whalen (39 NY2d 510 [1976]), which permitted agency action under a statute whose declaration of purpose stated that
“[i]n order to provide for the protection and promotion of the health of the inhabitants of the state, pursuant to section three of article seventeen of the constitution, the department of health shall have the central, comprehensive responsibility for the development and administration of the state’s policy with respect to hospital and related services” (id. at 516).
Here, the Board identified a complicated threat to the health of city residents with many interrelated causes; i.e., obesity. As part of a wide-ranging effort to combat this threat, the Board focused on certain kinds of drinks sold in establishments over which the Department had sure jurisdiction. The Board considered several options for addressing the problem, and chose one after open public debate, calibrated to the severity of the threat and its most serious manifestations, and cognizant of the limits of its enforcement power and the feasibility of compliance. There can be little doubt that this was within the Board’s statutory delegation.
Nor is there any legal problem with the method the Board has chosen to protect the health of city residents; i.e., a rule that seeks to influence consumer choices by making some choices marginally less convenient than others. The Appellate Division admonishes the Board for crafting this type of rule without an explicit directive to do so, and appears to conclude that the Board would have acted properly if only it had completely banned all sugary drinks within the City’s borders. This is certainly not what Boreali commands, and neither is it good practice for administrative rulemaking. Safeguarding public health is a vast and complex responsibility, and any agency entrusted with this obligation must carefully consider what types of rules will best address its many disparate aspects.
*714The Majority’s Boreali Analysis
The majority’s Boreali analysis raises two questions. First, having rejected the Board’s argument that its authority and delegated powers are conferred by the state legislature, not the Council, why is Boreali even relevant? After all, the basis for the separation-of-powers approach enunciated in Boreali is article III, § 1 of the New York State Constitution, specifying that “[t]he legislative power of this state shall be vested in the senate and assembly” (Boreali, 71 NY2d at 9). Simply put, this constitutional provision, by its very terms, does not apply to local governments.
The majority cites Under 21, Catholic Home Bur. for Dependent Children v City of New York (65 NY2d 344 [1985]). In Under 21 — a case decided three years before Boreali — we held that Mayor Koch lacked authority to issue an executive order proscribing discrimination by city contractors on a ground not covered by any legislative enactment of the Council. But we recognized in Under 21 that “the pattern of government established for New York City by the City Charter is not identical to that of . . . the State of New York” (id. at 356); and, as illustrated earlier, this is certainly true: the Board’s powers are delegated by the state legislature, not its local legislative body, the Council. To my knowledge, before today we have never applied the Boreali separation-of-powers doctrine outside the context of state legislative delegations to state agencies under the state constitution. By extending Boreali to local governments by virtue of article IX, § 1 (a) of the constitution, the majority takes a big step without pausing to consider the consequences.
Second, the majority seemingly advocates a flexible approach to the four “coalescing circumstances” set out in Boreali (majority op at 696-697), in particular, acknowledging that “Boreali should not be interpreted to prohibit an agency from attempting to balance costs and benefits” (id. at 697-698). But then the majority instructs that a Boreali analysis should focus on distinguishing between policy ends and regulatory means, claiming that
“[b]y restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal *715autonomy with respect to the choices of New York City residents concerning what they consume. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends” (id. at 698 [emphasis added]).
I agree that this sort of balancing “necessarily implie[s] a relative valuing of’ or making trade-offs between health and economic and other considerations and impacts. But then, that is how an agency carries out a cost-benefit analysis when deciding if and what sort of regulatory action to take. And what is inherently wrong with a regulation that seeks to “promote a healthy diet without significantly affecting the beverage industry”? Aren’t regulatory agencies supposed to take into account and reduce insofar as practicable any deleterious side effects of their rules on affected entities?3
There is no obvious reason why “economic consequences,” “tax implications for small business owners” and “personal autonomy” are “ends.” One could just as easily define the “ends” (as the Board did) to mean the protection of public health from risks associated with overconsumption of sugary drinks. Economic consequences, the effects on small business owners and personal autonomy are simply the kinds of factors the Board properly took into account when weighing the costs and benefits of different ways to achieve its public health “ends.”
*716In a similar vein, the majority goes on to add that
“[significantly, the Portion Cap Rule also evidenced a policy choice relating to the question of the extent to which government may legitimately influence citizens’ decision-making. In deciding to use an indirect method — making it inconvenient, but not impossible, to purchase more than 16 fluid ounces of a sugary beverage while dining at a food service establishment — the [Board] rejected alternative approaches, ranging from instruction (i.e. health warnings on large containers or near vending machines) to outright prohibition. This preference for an indirect means of achieving compliance with goals of healthier intake of sugary beverages was itself a policy choice, relating to the degree of autonomy a government permits its citizens to exercise and the ways in which it might seek to modify their behavior indirectly” (id. at 698).
But why is an “indirect means” of achieving an end (healthier intake) a forbidden policy choice? Making the healthier choice the simpler choice is one way to reduce overconsumption of sugary drinks, a category of products that has repeatedly been linked to weight gain, obesity and a variety of diseases. And the Board chose this means over other possible approaches as a way to tailor its regulations so as to impose the least burden on society — i.e., as the result of run-of-the-mine cost-benefit analysis.
With all due respect to my colleagues, their proposed ends-means test is virtually inscrutable and surely unworkable. It harks back to long discredited formalistic approaches to administrative law, which were seemingly objective but instead served as camouflage for enforcement of judicial preferences. In this case, a majority of the Court just does not believe it to be a good idea for the Board to mandate the portion size of sugary drinks, apparently on the theory that the Council should be the sole arbiter of “the choices of New York City residents concerning what they consume” (majority op at 698), at least in those situations where the choices are not immediately life-threatening. I can appreciate this vison of the world as a philosophical matter, but I see no legal basis for it here.
IV
Because the Portion Cap Rule does not suffer from any non-delegation or separation-of-powers infirmity, the proper stan*717dard for our review is whether the regulation is “so lacking in reason for its promulgation that it is essentially arbitrary” (see Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004], quoting Matter of Bernstein v Toia, 43 NY2d 437, 448 [1977]). The Rule easily passes this test.
Following the submission of public comments on Rule 81.53, the Department responded to the many concerns raised with a 13-page memorandum explaining in detail why sugary drinks were targeted, and why some drinks and establishments were excluded. The memorandum cites peer-reviewed academic research and the findings of other public health bodies. The Board debated the issues presented and responses, and placed its deliberations in the public record of its meetings. Dr. Thomas Farley, the Commissioner of the Department and a certified pediatrician with 30 years of clinical and research experience, has submitted in the record of this case an affidavit explaining in great detail the reasons for creating the Rule and for giving it the particular form that it has taken. Fourteen public health and medical associations have supplied amicus curiae briefs to this Court with further citations and arguments supporting the Board’s proffered explanations.
Petitioners and their supporting amici curiae, as well as Supreme Court, have countered the extensive documentation supporting the Board’s reasoning with arguments that the Rule is rife with loopholes and will never achieve its goal of reducing obesity. But a rule is not irrational because there are reasons to disagree with or ways to improve it, or because it does not completely solve the targeted problem (see Matter of Unimax Corp. v Tax Appeals Trib. of State of N.Y., 79 NY2d 139, 144 [1992]). Given the exhaustive record in this case, it is clear that the Rule is not “lacking in reason for its promulgation.” If it is ineffective, that will become clear enough in time, and the Board can correct course in light of new information. But this is no basis for the courts to strike the regulation down.
V.
What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one. Indeed, petitioners constantly stress just how unpopular the Portion Cap Rule is. But if that is so, eliminating, limiting, or preventing it via political processes should present little obstacle. *718Importantly, that is the appropriate way for expressing disagreement and seeking redress. Boreali should not be an escape hatch for those who are unhappy with a regulation, and are unable or unwilling to address it with available means.
To sum up, if the People of the City or State of New York are uncomfortable with the expansive powers first bestowed by the New York State Legislature on the New York City Board of Health over 150 years ago, they have every right and ability to call on their elected representatives to effect change. This Court, however, does not. And there is no question that the Portion Cap Rule falls comfortably within the broad delegation granted to the Board by the legislature. The majority fails to advance any persuasive argument why the judiciary should step into the middle of a debate over public health policy and prohibit the Board from implementing a measure designed to reduce chronic health risks associated with sugary beverages just because the Council has not chosen to act in this area.
Judges Graffeo, Smith and Abdus-Salaam concur with Judge Pigott; Judge Abdus-Salaam in a concurring opinion; Judge Read dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs; Judge Rivera taking no part.Order affirmed, with costs.
. As a point of comparison, note the language empowering the Commissioner of Health in the City of Brooklyn’s 1888 Charter: “Said health commissioner shall have power to act in a legislative capacity in regard to all matters pertaining to public health” (L 1888, ch 583, tit XII, § 2).
. The same would be true, of course, if a direct conflict existed between a local law in the area of public health and some action taken by the state legislature or the New York State Department of Health. Preemption is not a novel concept.
. Cost-benefit analysis has long been a staple of state and federal regulatory processes (see e.g. State Administrative Procedure Act § 202-a [1] [“In developing a rule, an agency shall, to the extent consistent with the objectives of applicable statutes, consider utilizing approaches which are designed to avoid undue deleterious economic effects or overly burdensome impacts of the rule upon persons” (emphasis added)]; Executive Order [Obama] No. 13563 of 2011 § 1 [b] [76 Fed Reg 3821 (2011)] [instructing agencies to “propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs,” “tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives,” and “select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits”]; Executive Order [Clinton] No. 12866 of 1993 § 1 [a], [b] [5] [58 Fed Reg 51735 (1993)] [“In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives,” and “design . . . regulations in the most cost-effective manner to achieve the regulatory objective”]).