(concurring in part and dissenting in part). While I agree fully with the majority’s disposition of the standing issue, I respectfully dissent from its holding that respondent New York State Department of Health (DOH) violated NY Constitution, article IV, § 8 in its use of the “50% rule”. This ruling, in my view, too broadly construes the constitutional requirement of filing an administrative rule or regulation, misreads the judicial precedent applying it, and will, I fear, create uncertainty in the field of administrative law where agencies announce or evolve guidelines to aid in making ad hoc decisions in performing their adjudicative function rather than their quasi-legislative, rule-making role.
A fair reading of the DOH decision of January 11, 1985, the sole determination under review, clearly shows that the 50% rule was néithér the sole nor the determinative basis for the finding of public heed for the proposed abortion clinic facilities of iriterveiior, Upper Hudson Planned Parenthood, Inc. (Planned Parenthood). First, the decision expressly eschewed application dr even the existence of a “regulatory formula” to determine need. Second, various other factors were considered and weighed in deciding that a need exists; namely, (1) the policy (reflected in the State’s formal health and medical facility plans) in favor of development of alternatives to institutional health care, (2) a projected needs analysis based upon current use ratios showing an over-all deficit in abortion services by 1990, (3) a trend, particularly in Albany County, of steadily increasing out-migration of county residents to seek abortion services in other localities, (4) a ratio of such out-migration to total abortions obtained by Albany County residents which was at least twice as high and as much as 25 times higher than that found in other major upstate population centers, (5) a ratio of the incidence of in-hospital to total abortion services from 5 to 9 times greater than that found in other upstate population centers, and (6) the special characteristics of Planned Parenthood’s proposed abortion services, including greater confidentiality, continuity of *147postabortion care, contraceptive education and more affordable fees. DOH’s decision also included an analysis supporting its conclusion that the current trend of decreasing incidence of abortions performed in Albany County and the existence of other out-of-hospital providers, principally private physicians, do not demonstrate the absence of need for Planned Parenthood’s proposed program, these being the two factors principally relied upon by opponents of the application.
Most, if not all, of the foregoing matters considered by DOH fall within the factors set forth in the regulations concerning its certificate of need review procedures (10 NYCRR 709.1). Thus, even if DOH may have found “particularly relevant” to its need determination that less than 50% of all abortion procedures in the subject area were performed out-of-hospital, the standard was not used as a “legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future” (People v Cull, 10 NY2d 123, 126 [emphasis supplied]). Nor was it a “preset, rigid numerical policy * * * which foredoomed” the result without reference to the facts and merits of the application (Matter of Sturman v Ingraham, 52 AD2d 882, 885). It is only in such instances, i.e., where a fixed, general principle is applied by the administrative agency without regard to other facts and circumstances relevant to the underlying statutory regulatory scheme, that the agency can be said to have invoked its quasi-legislative, rule-making authority and, hence, to have become obliged to file the rule or regulation with the Secretary of State and apply it only prospectively. This was precisely the situation in each of the cases relied upon by Special Term and petitioners herein. A group of those cases involved Medicaid reimbursement disallowance of various, actually incurred nursing home expenses, based solely on a firm, unqualified policy adopted by the agency (Matter of Cabrini Med. Center v Axelrod, 105 AD2d 569, 570; Matter of Aurelia Osborn Fox Mem. Hosp. v Axelrod, 103 AD2d 509, 510-511; Long Is. Coll. Hosp. v Whalen, 68 AD2d 274, 276). In other cases, the agency disapproved new nursing home facility construction purely by a mechanical application of a numerical formula for calculating the need for additional nursing home beds in any given county (Matter of Fairfield Nursing Home v Whalen, 64 AD2d 802; Matter ofSturman v Ingraham, supra). In each of the remaining cases cited (People v Cull, supra; Hartman v Whalen, 75 AD2d 963), the administrator similarly adopted and applied a rigid, unvariable standard or procedure completely conclusive of the rights and remedies of the affected party.
*148Neither these decisions nor the State Constitution’s regulation-filing requirement (NY Const, art IV, § 8) were intended to overturn the general principle of administrative law that an agency is free to evolve standards, if consistent with the statutory framework, on a case-by-case basis and to apply them to the individual proceeding at hand. “And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency” (Securities Commn. v Chenery Corp., 332 US 194, 203). The Supreme Court, in National Labor Relations Bd. v Bell Aerospace Co. (416 US 267, 294) and National Labor Relations Bd. v Wyman-Gordon Co. (394 US 759, 765-766), expanded on its Chenery ruling in upholding an administrator’s right to formulate, announce and apply policy guidelines in the course of adjudicating individual cases without going through the Federal Administrative Procedure Act’s rule-making procedures (5 USC § 551 [4]; § 553) comparable to our State constitutional provision (see also, Davis, Administrative Law, at 186 [1982 Supp]). New York case law, up to now, has not been inconsistent with these general principles of administrative law in ruling that an administrative agency does not violate the regulation-filing requirement by “establishing a guideline for a case-by-case analysis of the facts” (Long Is. Coll. Hosp. v Whalen, 68 AD2d 274, 276, supra; see also, Matter of Organization to Assure Servs, for Exceptional Students o Ambach, 56 NY2d 518).
Since, in its January 11, 1985 decision, DOH employed the 50% rule as nothing more than a nonconclusive, nonbinding guideline to be weighed along with other factors on the public need issue in adjudicating individual cases, there was no need to file it as a regulation.
Finally, the majority apparently concludes that the additional factors, other than the 50% rule, upon which DOH based its finding of public need, would have been sufficient to support that determination. With this I agree, since the decision shows a weighing of factual data and balancing of competing factors within the sole province of the administrative agency. Since the additional rationale for finding public neéd was both sufficient and expressly made part of DOH’s decision, upholding that determination would not violate Matter of Parkmed Assoc, v New York State Tax Commn. (60 NY2d 935), wherein the Court of Appeals disapproved this court’s confirmance of an administrative ruling on a ground never invoked by the agency.
For all of the foregoing reasons, I vote to reverse the judgment of Special Term, confirm the determination of public need and dismiss the petition.
*149Mahoney, P. J., Casey and Weiss, JJ., concur; Levine, J., concurs in part and dissents in part in an opinion.
Judgment modified, on the law, without costs, by deleting the last decretal paragraph thereof, and, as so modified, affirmed.