concurring in part and concurring in the judgment:
“In cases where a classification burdens neither a suspect group nor a fundamental interest,” the Supreme Court recently reminded us, “ ‘courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.’ ” Gregory v. Ashcroft, — U.S. -, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991) (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979)). Although I concur in most of my colleagues’ opinion, I do not join section 11(B)(2), the section addressing petitioners’ equal protection challenge, because I think it shows too little reluctance to overturn complex economic legislation under the minimal rational-basis test.
To my colleagues, the FCC’s distinction between different types of SMATV systems — a distinction, I agree, that is required by the plain meaning of the Cable Act — “poses a serious constitutional problem.” Maj. op. at 379. It “may violate the minimal equal-protection test,” maj. op. at 986; indeed, the equal-protection claim is “apparently valid.” Maj. op. at 388. Although acknowledging that petitioners’ challenge must fail if the law rests on a “rational basis,” my colleagues see nothing “[o]n the record before us” to sustain the challenged distinction, maj. op. at 389, and are “unable to imagine any basis for the distinction,” maj. op. at 389, a point they repeat for emphasis, see maj. op. at 388 n. 18. My colleagues remand so that the FCC can provide a justification for the distinction, but their strong language might suggest that no justification will satisfy them.
Such a conclusion would, in ■ my view, mark a new and unfortunate turn in rational-basis review. The Constitution is a blueprint for a workable government, and “[w]e must remember,” as Justice Holmes wrote, “that the machinery of government would not work if it were not allowed a little play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482 (1931). When Congress and state legislatures confront complex problems, interest groups and experts push many different, frequently incompatible, solutions. The democratic process — politics, if you will — often denies legislatures the option of picking the theoretically correct outcome, leaving them to strive for the best possible outcome under the circumstances. Because the only alternative would be to discourage legislators from making even an attempt to address complicated social and economic problems, the Constitution wisely permits legislative bodies to piece together practical plans— “rough accommodations,” as the Supreme Court put it long ago, “illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 443, 57 L.Ed. 730 (1913). Undoubtedly, the political process sometimes gets it wrong, but the Constitution presumes that, as long as the groups involved have a fair chance to fight in the political arena, the democratic process will right itself. Legislatures may change flawed laws, or voters may even “throw the bums out.” The Constitution reserves judicial review for situations where one may suspect the democratic process. It forbids the judiciary from “sit[ting] as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976).
None of that is new, of course, and I doubt that my colleagues disagree with the background. But I think we should keep that background in mind as we engage in constitutional scrutiny under the rational-basis test. Under that test, legislatures may single out classes of people as long as the lines drawn are not “ ‘invidious or irrational.’ ” United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 176, 101 S.Ct. *391453, 460, 66 L.Ed.2d 368 (1980) (citation omitted). “A classification having some reasonable basis does not offend [equal protection principles] merely because it is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911) (quoted in more than two-dozen Supreme Court cases including, most recently, City of Dallas v. Stanglin, 490 U.S. 19, 26, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989)). Accordingly, the Supreme Court has struck down only a handful of statutes under the rational-basis test; even the Lochner Court rarely invoked equal protection principles to invalidate economic legislation. And almost every law declared unconstitutional under rational-basis review involved a class of people who, for one reason or another, faced obstacles to their participation in the political process that produced the challenged law — such as the mentally retarded, see City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); children of illegal aliens, see Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); or out-of-state companies challenging a state law that “discriminat[ed] against nonresident competitors,” Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 875 n. 5, 105 S.Ct. 1676, 1680 n. 5, 84 L.Ed.2d 751 (1985); see also Laurence H. Tribe, American Constitutional Law § 16-3 p. 1445 (2d ed. 1988) (“Th[e] sporadic move away from near-absolute deference to legislative judgments seems to be a judicial response to statutes creating distinctions among classes of residents based on factors the Court evidently regards as in some sense ‘suspect’ but appears unwilling to label as such.”).
Not only should economic legislation be upheld as long as the classifications drawn in the statute “are reasonable in light of its purpose,” McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964), but the justification for the legislation need not appear in the legislative or administrative record. As the Supreme Court has said:
Where ... there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,” because this Court has never insisted that a legislative body articulate its reasons for enacting a statute.
United States R.R. Retirement Bd., 449 U.S. at 179, 101 S.Ct. at 461 (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960)). My colleagues “assume without deciding” that minimal equal protection scrutiny requires only a “conceivable basis,” not an “articulated basis,” maj. op. at 987, but I think that question is settled. The Supreme Court stated last Term that, under the rational-basis test, a “statutory distinction does not violate the Equal Protection Clause ‘if any state of facts reasonably may be conceived to justify it.’ ” Sullivan v. Stroop, 496 U.S. 478, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) (quoting Bowen v. Gilliard, 483 U.S. 587, 601, 107 S.Ct. 3008, 3017, 97 L.Ed.2d 485 (1987) (emphasis added)). My colleagues are right to search the record for possible justifications, see maj. op. at 986, but to the extent their opinion implies that justifications in the record are necessary or have special significance in rational-basis review, I must disagree.
Against a rational-basis challenge, I think the Cable Act comes to us bearing a very strong presumption of constitutionality, a presumption that can be sustained by justifications in or out of the record. The Cable Act is a large and complex piece of socioeconomic legislation, an effort to establish a comprehensive regulatory scheme for the cable industry, a product of public hearings, private negotiations, and compromise. SMATV operators, the petitioners in this suit, participated actively in the process and, in fact, did quite well. With only one exception — the one at issue here: SMATV systems that interconnect multiple, separately owned buildings with physical wiring on private property — SMATV facilities are excluded from Cable Act requirements. My colleagues appear to think that the challenged provision of the Cable *392Act is unlikely to survive minimal equal-protection review (though I’m not sure how they can suggest that the challenged provision is absurd for purposes of constitutional analysis after holding that the FCC’s reading of the provision is not absurd for purposes of statutory analysis, see maj. op. at 980-81). I do not share my colleagues’ doubts. Perhaps rough, the distinctions in the statute strike me nevertheless as entirely reasonable in light of the Cable Act’s purposes.
As I read section 11(B)(2), my colleagues are troubled by two distinctions in the law. The first is between what my colleagues call “external, quasi-private” SMATV (subject, under the challenged provision, to Cable Act requirements) and “internal” SMATV (not subject, under the challenged provision, to Cable Act requirements). That distinction seems to me a reasonable way to promote the development of nonphysical video delivery systems. Under the statute, a SMATV facility serving multiple, separately owned buildings is covered by the Cable Act if the broadcast signal is transmitted to the buildings through cable or other physical wiring, and exempt from the Cable Act if the broadcast signal is transmitted through the air via radio waves. (The latter system is the one my colleagues’ term “internal” and, although I am happy to borrow the useful shorthand, I think it is worth noting that an “internal” system does serve multiple buildings.) The effect of the rule, as both petitioners and the FCC say, is to create an incentive for SMATV operators to switch from physical wiring to radio transmission so that they are exempt from regulation under the Act. But that, I think, is entirely consistent with Congressional and FCC policy of promoting “new technologies that offer substantial public benefits.” National Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1197 (D.C.Cir.1984). In fact, the FCC chose to preempt local regulation of some SMATV systems in part to advance “the federal interest in ‘the unfettered development of interstate transmission of satellite signals.’ ” New York State Comm’n on Cable Television v. FCC, 749 F.2d 804, 808 (D.C.Cir.1984). That same federal interest, it seems to me, justifies the statutory distinction here. I am not at all persuaded that a classification that encourages SMATV operators to use radio-wave technology instead of cable wiring violates equal protection principles.
My colleagues also seem to be concerned about the distinction between “external, quasi-private" SMATV (subject, again, to Cable Act requirements) and “wholly private” SMATV (not subject to Cable Act requirements). I think that distinction is reasonable in light of the Cable Act’s purpose of promoting consumer, or viewer, interests. Under the statute, a SMATV system on private property is covered by the Cable Act if it serves multiple buildings that are not commonly owned, managed or controlled, and not covered by the Act if it serves buildings that are commonly owned, managed or controlled. In adopting the Cable Act, Congress could have taken the reasonable position that a SMATV system serving multiple buildings not under common ownership is similar to a traditional cable system and likely to give rise to similar problems from the perspective of the viewer. Congress could have reasoned, meanwhile, that a SMATV facility serving buildings under common ownership is likely to be smaller, and the ability of residents to influence ownership likely to be greater, so that the costs of regulation could outweigh the benefits. Similarly, in adopting the SMATV provision, Congress could have concluded that regulation of facilities serving multiply owned buildings is a reasonable way to enhance the diversity of broadcast information, while SMATV systems serving buildings commonly owned are, again, likely to be smaller and not in need of regulation. The challenged classifications, in sum, pose line-drawing problems. “[A]nd the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” United States R.R. Retirement Bd., 449 U.S. at 179, 101 S.Ct. at 461.
Because my colleagues mention only the public rights-of-way rationale for the Cable Act, I should note that the consumer-inter*393est and diversity-of-information rationales plainly appear on the face of the Act (along with four other stated objectives): the law is intended to “establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community”, 47 U.S.C. § 521(2) (emphasis added); and it is intended to “assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public.” 47 U.S.C. § 521(4). (The Act is also intended to serve the broad purpose of “establishpng] a national policy concerning cable communications.” 47 U.S.C. § 521(1).) The Cable Act provides for the regulation by franchising authorities, under certain circumstances, of cable systems’ rates, services, facilities and equipment. 47 U.S.C. §§ 543-544. And it contains provisions designed to encourage diversity of information distribution, such as those authorizing franchising authorities to require that cable operators set aside a portion of their channels for public, educational and governmental access channels, 47 U.S.C. § 531, and for other programmers, 47 U.S.C. § 532.
In light of the requirements the Cable Act imposes, the Cable Definition Rule might raise First Amendment questions and it might pose problems under “fundamental rights” equal-protection scrutiny— questions, I agree with my colleagues, we need not now decide. But I think the statute does not pose serious constitutional problems under rational-basis review. The classifications in the cable definition provision, as I’ve suggested, are reasonable in light of the Cable Act’s purposes. In fact, given the variety and scope of the statute’s purposes, I am confident the FCC will suggest justifications I have not mentioned.
I do not, finally, disagree with my colleagues’ decision to remand the case to the FCC so that it can provide justifications for the classifications in the statute. This is a complicated area, and the expert agency is certainly better equipped than the court to put the classifications in context. Unfortunately, when the FCC defended the Cable Definition Rule before us, it provided no explanations for the distinctions in the law. It chose not to reply to petitioners’ constitutional arguments, resting on its response that the challenges were not ripe. The Commission should have done more, and my colleagues are right to demand more. I only hope that my colleagues’ dicta about the merits of petitioners’ rational-basis claim reflect frustration with the FCC rather than a new approach to rational-basis review.