(Dissenting).
This case requires us to address the difficult doctrine of regulatory takings. I agree with much of the reasoning in Judge Torruella’s opinion. However, I believe that reasoning compels the conclusion that the Disclosure Act is not unconstitutional on its face. Accordingly, I respectfully dissent.
I. TAKINGS CLAUSE
The tobacco companies mount only a facial challenge to the Disclosure Act. See Phillip Morris, Inc. v. Reilly, 113 F.Supp.2d 129, 132 (D.Mass.2000) [hereinafter Phillip Morris III ]. Thus, they must show that the “mere enactment of the [Disclosure Act] constituted a taking.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 1476, 152 L.Ed.2d 517 (2002). The test is a stringent one, and the tobacco companies “ ‘face an uphill battle.’ ” Id. at 1477 (quoting Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987)). “A facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 77 (1st Cir.2001) (internal quotation marks omitted); see also Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (explaining that a facial takings challenge must show that the law in question “does not substantially advance a legitimate state interest no matter how it is applied” (internal quotation marks omitted)).
The tobacco companies have not met that burden here. As Judge Torruella’s opinion indicates, the constitutionality of any given disclosure under the Act depends on how much — and what sort of— ingredient information is made public. The question of what information will be publicized cannot be answered by reference to the terms of the Act and its implementing regulations, which indicate only that Massachusetts may disclose some of the information it receives. Thus, there is nothing unconstitutional about the Act itself. What matters is how it is applied in each individual case.
A.
Judge Torruella reasons that publication of the tobacco companies’ “entire ingredi*53ent lists” constitutes a taking under the ad hoc balancing test mandated by Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Although I do not believe we need to decide that question here, I agree that disclosure of the tobacco companies’ entire ingredient lists almost certainly would “go[ ] too far,” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922), and therefore would rise to the level of a taking. Such a disclosure would come at an enormous cost, as it would “completely destroy” the secrecy of the companies’ brand-specific formulas. On the other side of the equation, “it is not at all clear that protecting the overall integrity of the tobacco companies’ ingredient lists” — by publicizing only certain ingredients, for example — would “interfere with Massachusetts’ goal of promoting public health.” Accordingly, it seems reasonable to conclude, as Judge Torruella does, that disclosure of the tobacco companies’ entire ingredient lists would constitute a taking for which compensation is due.
Judge Torruella recognizes, however, that a more limited disclosure likely would not suffer from the same constitutional infirmities. Thus, he acknowledges that the tobacco companies “comply, without complaint, with regimes which require them to make confidential disclosures of brand-specific, ingredient information, see Tex. Health & Safety Code Ann. §§ 161.351-55, or which require public disclosures when specific ingredients are used, see Minn.Stat. § 461.17.” Judge Tor-ruella observes that ingredient-specific disclosure, such as that required under Minnesota law, not only adequately serves the state’s interest in protecting public health, but actually does so more effectively than the across-the-board disclosure permitted under the Disclosure Act.
Implicit in Judge Torruella’s opinion, therefore, is the view that the outcome of the Penn Central analysis depends on whether Massachusetts publicizes the tobacco companies’ entire ingredient lists, or whether it engages in a more limited disclosure. I agree. If Massachusetts were to disclose only certain harmful ingredients, the economic burden on the companies would be significantly reduced. Although the fact that brand X contains ingredient Y may be a secret, the tobacco companies do not allege that the disclosure of such limited information would permit their competitors to discover and recreate brand-specific formulas. They reserve that charge for a disclosure of their entire ingredient lists, organized by relative amount on a brand-by-brand basis.
Moreover, a more limited disclosure undeniably would serve the state’s goal of protecting public health. Under current law, the federal Department of Health and Human Services “can study and report to Congress on the health effects of tobacco additives, including information on specific ingredients which may pose a health risk to consumers.” However, neither the federal government nor — as of yet — most states, can inform consumers about the presence of harmful ingredients in specific brands. As Judge Torruella recognizes, Massachusetts has a “significant” interest in promoting the health of its citizens, and its desire to help consumers make informed choices about tobacco products is “laudable.” If Massachusetts were to pursue those ends by disclosing brand-specific information about certain harmful ingredients, I believe the force of the state’s interests would outweigh the costs to the tobacco companies in the balance of factors. See Keystone Bituminous Coal Ass’n, 480 U.S. at 488, 107 S.Ct. 1232. Nothing in Judge Torruella’s opinion suggests otherwise.
*54B.
Thus, under Judge Torruella’s own reasoning, the Disclosure Act will effect an unconstitutional taking only if Massachusetts discloses the tobacco companies’ entire ingredient lists. It follows that, in order to hold that the Disclosure Act is unconstitutional on its face, we would have to conclude that it mandates such broad disclosure in every case, or at least a “large fraction” of them. Planned Parenthood v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). However, the Act does not require disclosure of the entire ingredient lists. It says only that Massachusetts “shall” make public certain “information” contained in those lists if the State Department of Health determines that publicizing “such information” could reduce risks to public health. Mass. Gen. Laws ch. 94, § 307B (2002).
Notwithstanding the express terms of the Act, Judge Torruella proceeds on the assumption that Massachusetts necessarily will disclose the tobacco companies’ entire ingredient lists. He justifies that assumption by reference to the district court’s opinion, stating that “[a] prior holding, which is not currently before us, decided that under [the Disclosure Act], Massachusetts will publish the tobacco companies’ ingredient lists.” The district court decided no such thing. To the contrary, the court explicitly acknowledged Massachusetts’s argument that “the DPH may determine that the public health will be served by disclosure of only some of the ingredients on a list, not a whole list.”27 Phillip Morris III, 113 F.Supp.2d at 139 n. 27. It held only that Massachusetts was bound to disclose some of the information in the tobacco companies’ ingredient lists.
Perhaps recognizing the limited nature of the district court’s holding, Judge Tor-ruella emphasizes that the Act “allows for” disclosure of the full ingredient lists. But the mere possibility of such broad disclosure is not enough to render the Act facially invalid. See Agins v. Tiburon, 447 U.S. 255, 259-60, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (rejecting, in the context of a facial challenge, the argument that the zoning ordinance at issue could be applied to prohibit all development, where the terms of the ordinance permitted appellants to construct up to five residences on their property); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“The fact that [a legislative act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.... ”). Rather, the fact that the Disclosure Act may result in a taking in certain circumstances — if Massachusetts decides to publish the tobacco companies’ *55entire ingredient lists, for example— means only that the companies might well succeed in as-applied challenges to the Act. See Tahoe-Sierra, 122 S.Ct. at 1485 (“[I]f petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn Central analysis.”); see also McGuire v. Reilly, 260 F.3d 36, 47 (1st Cir.1999) (“If, as the plaintiffs predict, experience shows that clinic staffers in fact are utilizing the exemption as a means either of proselytizing or of engaging in preferential pro-choice advocacy, the plaintiffs remain free to challenge the Act, as applied, in a concrete factual setting.”).
C.
Judge Torruella also suggests that the fact that Massachusetts has the right to publish the entire ingredient lists renders the Act facially invalid because the mere possibility of disclosure is enough to put the companies on “constructive notice that if they comply with the Disclosure Act, their trade secrets may not remain secret.” Since the Act makes clear that the state might disclose trade secret information, the argument goes, the companies cannot submit their information to the state and then later claim that any proposed public dissemination is unconstitutional. On that view, if the tobacco companies choose to run the risk of such public dissemination in order to continue doing business in the state, they “can hardly argue that [their] reasonable investment-backed expectations are disturbed when [Massachusetts] acts to ... disclose the data in a manner that was authorized by law at the time of submission.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1006-07, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984).
I do not think the choice is so stark. Unlike the regulatory scheme at issue in Monsanto, the Disclosure Act contains mechanisms by which the tobacco companies can protect their trade secrets from public dissemination even after submitting them to the state. If Massachusetts proposes to publicize any or all of the information contained in a tobacco company’s annual report, the company can stay disclosure by filing an as-applied challenge in a court of competent jurisdiction. See Mass. Regs.Code tit. 105, § 660.200(G) (1999). In the alternative' — -or in the event such a challenge fails — the company can withdraw its products from the Massachusetts market. See id. § 660.200(F).
Nor do I agree that future as-applied challenges necessarily will fail because the tobacco companies’ right to protect the confidentiality of their trade secrets will dissolve the moment they submit those secrets to the state. Under the Act and its implementing regulations, a public disclosure is “authorized by law,” Monsanto, 467 U.S. at 1007, 104 S.Ct. 2862, only if the tobacco companies do not _ exercise their right to stay disclosure by filing a timely challenge in court. See Mass. Regs.Code tit. 105, § 660.200(G)(2). Indeed, the regulations state explicitly that Massachusetts “shall treat [the ingredient lists] as confidential unless and until ... a determination to release the information has been made in accordance with [the Disclosure Act] ... and no complaint has been filed in a court of competent jurisdiction challenging disclosure of the information on the grounds that disclosure would make available to 'the public a trade secret.” Id. Thus, Massachusetts’s ability to disclose the tobacco companies’ trade secrets is expressly conditioned on the companies’ right to resist any such disclosure through an as-applied challenge. It would border on the absurd to reject such a challenge on the ground that the tobacco companies had “implicitly consented” to the very disclo*56sure being resisted. Monsanto, 467 U.S. at 1021, 104 S.Ct. 2862 (O’Connor, J., concurring in part).
In sum, I disagree with Judge Torruel-la’s conclusion that the Disclosure Act is facially unconstitutional because it requires tobacco companies to submit their trade secrets to the ' state without any guarantees of confidentiality. The implementing regulations contain an unambiguous promise of confidentiality. Therefore, the initial act of submission to the state is not enough to destroy the value of the trade secrets. It is only when those secrets actually are made available to the public that the tobacco companies’ property interest dissolves. That, of course, brings us back to where we began: the relevant event for purposes of the Takings Clause is the actual (or imminent) disclosure of the tobacco companies’ trade secrets. As I explained above — and as Judge Torruella appears to recognize — the constitutionality of any given disclosure depends on how much, and what sort of, information Massachusetts proposes to make public. Accordingly, the Act is not unconstitutional in every application, and the tobacco companies’ facial challenge should fail.
II. DUE PROCESS
The tobacco companies also argue that the Disclosure Act denies them due process of law by permitting the state to destroy the value of their trade secrets without an adequate pre-deprivation hearing. I agree that the Disclosure Act authorizes the state to deprive the tobacco companies of a protected property interest in their trade secrets. However, I find no merit in the tobacco companies’ contention that the Act fails to meet the standards of the Due Process Clause.
As explained above, Massachusetts has enacted several regulations that contain important procedural safeguards. Under the regulations, Massachusetts must provide the tobacco companies sixty days’ written notice prior to publicizing any information in the ingredient lists. Mass. Regs.Code tit. 105, § 660.200(E). During that period, the tobacco companies may comment on Massachusetts’s decision to disseminate the information. Id. at § 660.200(A). Moreover, the tobacco companies may forestall any threatened disclosure by filing a lawsuit in a court of competent jurisdiction. Id. at § 660.200(G)(2).
Notwithstanding the unambiguous language of the regulations, the tobacco companies complain that the Act fails to “provide a meaningful opportunity for judicial review before valuable trade secrets con-cededly worth millions of dollars are disclosed and destroyed.” In a footnote, they add that the protections provided in § 660.200(G) — which delays any proposed disclosure until the completion of the sixty day notice period and/or any timely-filed lawsuit28 — are inadequate because “[t]he *57Act itself states that ingredient information ‘shall be’ a public record after the statutory determinations are made, and as such its production may be compelled by third parties regardless of the ‘pull back’ option.” That is plainly incorrect. Although reports submitted by the tobacco companies become public records by the terms of the Disclosure Act, that same Act states that “before any public disclosure,” the department must undertake certain procedures to ensure that the information being released to the public will not violate the Takings Clause. These procedures are described both in the statute and in the regulations enacted pursuant to it. The department must abide by these procedures in considering its own disclosure under the Disclosure Act or in responding to requests for information from third parties under the public records law, Mass. Gen. Laws, ch. 66, § 10(b).
The tobacco companies argue that the regulatory amendments setting forth the “pull-back” option, § 660.200(G)(2), will not preclude a third party from compelling inspection under the public records law because the regulations contravene the terms of the Disclosure Act. That is not so. “An administrative agency has jurisdiction to establish regulations that bear a rational relation to the statutory purpose.” Globe News. Co. v. Beacon Hill Architectural Comm., 421 Mass. 670, 659 N.E.2d 710, 717 (1996). Although the Disclosure Act contemplates the possibility that information submitted by the companies may be disclosed to the public, it also contains provisions intended to protect the state from engaging in unconstitutional activity. The statute requires the department to “request the advice of the attorney general” on whether the intended disclosure “would constitute an unconstitutional taking of property.” Mass. Gen. Laws ch. 94 § 307B. The “pull-back” regulations provide an extra layer of protection by allowing the tobacco companies to seek a judicial determination of the same question before there is any disclosure. The Legislature’s intent in addressing the takings issue is apparent — at no point should the department engage in any action that would violate the Takings Clause. Instead of contradicting the statute, as the companies argue, the regulations actually serve the unmistakable intent of the Legislature.29
Therefore, it simply is not true that, notwithstanding the regulations, “third parties” will be able to compel disclosure of the tobacco companies’ trade secrets under Massachusetts’s public records stat*58ute. As the Commonwealth argued in its briefs, “the Disclosure Act actually limits the pre-existing reach of the public records law, by providing that tobacco ingredients can be made public only if the Act’s conditions are met.” Thus, the tobacco companies will have an opportunity for “meaningful judicial review” prior to any threatened deprivation. Their due process challenge fails on its own terms.
For the foregoing reasons, I respectfully dissent.
. Although the district court did not question the accuracy of that argument, it rejected Massachusetts’s claim that the possibility of partial disclosure rendered the tobacco companies’ takings claims unripe. See Phillip Morris III, 133 F.Supp.2d at 139 n. 27. I agree that those claims are ripe for review. Indeed, the Supreme Court has explained that a facial challenge such as this one typically is ripe "the moment the challenged regulation or ordinance is passed.” Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). Accordingly, I agree that the tobacco companies’ facial challenge is properly before us. As I explain in the text, however, I think that challenge fails on the merits. See Yee, 503 U.S. at 534, 112 S.Ct. 1522 (concluding that facial, but not as-applied, takings challenge was ripe, and rejecting it on the merits); Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 295-97, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (same); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (same); see also Kines v. Day, 754 F.2d 28, 29-31 (1st Cir.1985) (same, with respect to facial and as-applied challenges under the First Amendment (citing similar cases)).
. The regulations state, in pertinent part:
(G) The Department shall treat information submitted pursuant to 105 CMR 660.101 as confidential unless and until:
(2) a determination to release the information is made in accordance with 105 CMR 660.200(A) through (E), the 60 day period referred to in 105 CMR 660.200(E) has elapsed, and no complaint has been filed in a court of competent jurisdiction challenging disclosure of the information on the grounds that disclosure would make available to the public a trade secret; [or] (3) disclosure of the information is authorized by judicial decision and the time for appeal in a court of competent jurisdiction has passed;
(H) In the event that a manufacturer files a complaint in a court of competent jurisdiction within the 60 day notice period specified in 105 CMR 660.200(E), challenging a proposed disclosure of information by the *57Department on the grounds that disclosure would make available to the public a trade secret, the Department shall not disclose any of the information in question unless and until:
(1) the parties agree in writing to disclosure; or
(2) the court renders a decision authorizing disclosure; and
(3) the time has passed for filing an appeal of the decision in a court of competent jurisdiction.
Mass. Regs.Code tit. 105, § 660.200.
. Although the Disclosure Act explicitly states that the annual reports submitted by the tobacco companies pursuant to the Act are public records, the additional provisions of the Act and the supplemental regulations barring disclosure until there is compliance with certain procedures produces a result that is comparable to the result contemplated by Mass. Gen. Laws ch. 4, § 7, cl. 26(a) of the public records law. Under that subsection, materials or data “specifically or by necessary implication exempted from disclosure by statute” will not be considered public records, and therefore, are not open to inspection by the public. See Ottaway News. Inc. v. Appeals Court, 372 Mass. 539, 362 N.E.2d 1189, 1193-94 (1977) (exempting from the definition of "public records” bank examination reports collected pursuant to a statute providing for their confidentiality).