concurring in the judgment.
I agree with my colleagues that the decision of Congress not to grant Social Security benefits to individuals who have been found not guilty by reason of insanity, but to continue to grant such benefits to those who are committed civilly because of a psychiatric disability, survives an equal protection challenge under the prevailing standards.
This is a case about the distribution of Social Security benefits. Here, Congress has decided to draw a line in the distribution of those benefits that implicates neither a fundamental right nor a suspect class. Classifications of this sort are constitutionally infirm under the prevailing norms of our jurisprudence only when the classification is patently arbitrary because it lacks no rational justification. See Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). The appellants’ argument that the Supreme Court has created an “active” rational basis test that permits more searching scrutiny than that employed under Flem-ming is, in my view, a misreading of the *818Court’s cases. In the cases upon which the appellants rely, the Court determined, quite simply, that the classification at issue was irrational; it applied no sort of heightened scrutiny. Cf. Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Schweiker v. Wilson, [450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981)]. In neither case did we pui’port to apply a different standard of rational-basis review from that just described.”).
This case therefore can be decided on the basis of established principles of equal protection analysis. There is no reason to go beyond those well-settled principles and to suggest that Congress would have acted within constitutional bounds even if it had intended to punish insane individuals for their actions. Setting itself on a collision course with the analysis of our colleagues in the District of Columbia Circuit, see Wiley v. Bowen, 824 F.2d 1120 (D.C.Cir.1987), and, indeed, with the Supreme Court, see Flemming, 363 U.S. at 616-21, 80 S.Ct. 1367, my colleagues suggest that it would be perfectly appropriate, in the constitutional and moral sense, for Congress to demonstrate its disapproval of the acts of criminally insane individuals by depriving them of statutory entitlements to which they otherwise would be entitled. Our common law tradition accepts that those who engage in antisocial conduct take their chances with respect to the consequences of their conduct. The common law tradition often has punished those whose actions result in concrete damage more severely than those whose actions create the possibility of such damage. But sanctioning those who deliberately undertake activity which carries with it exposure to legal sanctions is different from sanctioning those who have no responsibility for their actions. Our common law heritage reflects no well-established ti*a-dition to support the proposition that it is morally or constitutionally acceptable to punish those who are not responsible for their actions.1 Indeed, before this court, the United States explicitly rejects any reliance on such a justification.2 We ought to heed this position of the Executive Branch.
Like the other courts of appeals that have considered the matter, we ought not “lightly attribute to the Congress as a whole the impermissible motives of a few of its members.” Wiley, 824 F.2d at 1122. Rather, we ought to place our affirmance of the district court squarely on the proposition that this restriction of eligibility for benefits is rationally related to the Congressional responsibility to protect the public fisc from unnecessary and imprudent expenditures. When viewed in these terms, the statute’s classification is certainly “rationally related to the legitimate goals set forth by Congress.” Smith v. Shalala, 5 F.3d 235, 240 (7th Cir.1993), cert. denied, 510 U.S. 1198, 114 S.Ct. 1309, 127 L.Ed.2d 660 (1994). The fact that the classification is underinclusive is, of course, not a constitutional concern when we are dealing with this level of judicial scrutiny. It is well established that the legislature may take one *819step at a time, addressing part of a subject while leaving identical problems beyond the scope of the statute. See McCann v. City of Chicago, 968 F.2d 635, 638 (7th Cir.), cert. denied, 506 U.S. 986, 113 S.Ct. 495, 121 L.Ed.2d 432 (1992). “A statute is presumed constitutional ... and ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’” Heller, 509 U.S. at 320, 113 S.Ct. 2637, quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).
On this basis, I would affirm the judgment of the district court.
. The Supreme Court has not said that a state must make the insanity defense available. See Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). Nor has it said, however, that mental illness may be treated as an irrelevancy in the imposition of criminal sanctions. Cf. Foucha v. Louisiana, 504 U.S. 71, 89, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (O’Connor, J., concurring) ("If a State concludes that the mental illness is best considered in the context of criminal sentencing, the holding of this case erects no bar to implementing that judgment.”); see also Utah v. Herrera, 895 P.2d 359, 366-67 (Utah 1995) (holding that federal constitutional standards are not violated by the abolition of the insanity defense as long as the defendant is afforded the defense of demonstrating that he lacked the requisite mens rea because of mental illness); State of Montana v. Cowan, 260 Mont. 510, 861 P.2d 884, 889 (1993) (same), cert. denied, 511 U.S. 1005, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1994); State of Idaho v. Searcy, 118 Idaho 632, 798 P.2d 914, 917 (1990) (holding that the defense of insanity is not required by the federal constitution but noting that Idaho, by allowing evidence of mental illness to negate the required mens rea, “continues to recognize the basic common law premise that only responsible defendants may be convicted”). Even so-called absolute liability offenses require the intent to perform the actions upon which liability can be predicated. .
. Brief of the United States, p. 18.