(dissenting):
The decision in this case allows the State of New York to receive millions of federally granted dollars and then proceed to ignore the federal law granting them by reducing payments to thousands of welfare recipients already living at a bare subsistence level. This result follows from a restrictive interpretation of the *182district court’s jurisdiction and allowable discretion and of the meaning of the applicable federal statute. I respectfully but emphatically dissent.
Because of the differences in the opinions of my brothers, it is necessary to describe them precisely. As I understand it, they agree that the three-judge court properly dissolved itself. Judge Hays rules that the single judge thereafter had no jurisdiction; Chief Judge Lum-bard is of the view that the single judge had the power to decide the case, but agrees with Judge Hays that it was an abuse of discretion to do so. Finally, Judge Hays decides that section 131-a of the New York Social Services Law does not conflict with the 1967 amendment of the Social Security Act referred to as section 602(a) (23). Chief Judge Lum-bard does not deal with the merits, although he finds unpersuasive the interpretation of section 602(a) (23) contained in this dissenting opinion. I dissent from the holdings that the single judge lacked jurisdiction or abused it, and that section 131-a does not conflict with section 602(a) (23). Discussion of the propriety of dissolution of the three-judge court is deferred to point III below. I turn first to the question of the jurisdiction of Judge Weinstein to grant plaintiffs relief.
■ I. Jurisdiction of the single fudge.
On this aspect of the case, the issue is whether the United States District Court for the Eastern District of New York had jurisdiction to determine whether federal funds were about to be spent in a manner that would violate a federal statute. Thus stated, the question begs for resolution in a federal court, rather than in a state forum as appellants contend. Moreover, the formidable intricacies of three-judge court procedure should not be allowed to obscure this basic issue.
The district court judge originally convened a three-judge court on April 24, 1969, plaintiffs’ complaint having challenged section 131-a of the New York Social Services Law on two main grounds: first, denial of equal protection of the laws because residents of Nassau County would be discriminated against by new payment schedules below those for residents of New York City, and second, conflict with a federal statute, 42 U.S.C. § 602(a) (23). Thereafter, the three-judge court held a hearing. While the issues were before it, the New York State legislature adopted an amendment to section 131-a, which the three-judge court felt rendered the equal protection claim moot. Accordingly, that court dissolved itself on May 12, 1969, and remanded the matter back to the single judge. On May 15, Judge Weinstein issued his opinion and on May 16, his order from which appeal has been taken.
Judge Weinstein’s conclusion that he had jurisdiction was based upon two theories: that jurisdiction to decide the federal statutory claim was pendent to the federal constitutional claim and that jurisdiction also existed under 28 U.S.C. § 1331. He noted that there might also be independent jurisdiction over the federal statutory claim under 28 U.S.C. § 1343(3), but found it unnecessary to decide that question. I agree with the district court judge that pendent jurisdiction existed even though the federal constitutional claim of denial of equal protection had been eliminated from the ease. I reach this conclusion by either of two routes.
A. Assume that the jurisdiction exercised over the statutory claim was that of the three-judge court. In King v. Smith, 392 U.S. 309, 88 S.Ct. 2128 (1968), the Supreme Court made clear that when a federal constitutional claim and a federal statutory claim are joined together, the three-judge court has power to decide the latter. In fact, that is what the Supreme Court did, putting aside the constitutional issue. It is true that in footnote 3, the Court said (392 U.S. at 312, 88 S.Ct. at 2131):
We intimate no views as to whether and under what circumstances suits challenging state AFDC provisions only on the ground that they are inconsistent with the federal statute may be brought in federal courts. See gen*183erally Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84 (1967).
However, that referred to a suit brought only on the statutory ground, a situation not present in that case or here. Indeed, in Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80-81, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960), the Court said that a properly convened three-judge court has jurisdiction “over all claims” raised against a state statute. The footnotes in that opinion at pp. 81-82, 80 S.Ct. at p. 574, make clear that the quoted phrase applies not just to claims based upon a federal statute but even to “local questions” arising under a state constitution and to “every question involved, whether of state or federal law.” Therefore, if the three-judge court in this case was properly convened, as it said it was, it had the power to decide the statutory claim. It chose not to do so on its theory that the constitutional claim had become moot, stating:
We need not consider the now academic question of whether the three-judge court might, in the exercise of its pendent jurisdiction, have decided the alleged statutory issue either before it considered the alleged constitutional issue or after it decided the constitutional issue against the plaintiffs. Cf. King v. Smith, 392 U.S. 309, 312 n. 3, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Under the circumstances of this case there is no reason for continuing the three-judge court.
Thus, it is not clear whether the court thought it could or could not exercise pendent jurisdiction, or whether it was deciding that no judge should exercise that jurisdiction or was leaving the question for the single judge. In any event, the matter was remanded back to the single judge “for such further proceedings as are appropriate.” Therefore, Judge Weinstein was left with the possibility that the pendent jurisdiction he said that he exercised was that of the three-judge court passed back to him. Cf. Landry v. Daley, 288 F.Supp. 194 (N.D.Ill.1968). If he was exercising that jurisdiction, then under the cases cited above his power to do so was clear, unless the mootness of the constitutional claim prevented him, an issue discussed further below.
B. Assume, however, that because the three-judge court has been dissolved the case must be considered on the theory that the pendent jurisdiction allegedly exercised was only that of the single judge district court. Both the constitutional and statutory claims were in the complaint as originally filed. Judge Wein-stein convened the three-judge court to consider both but pointed out that if it should subsequently be determined that a three-judge court was not required, “the single judge’s decision, as part of that three-judge court, would become the opinion of the Court.” When the complaint was filed, the federal constitutional claim of denial of equal protection of the laws was not frivolous and clearly fell within the jurisdictional language of 28 U.S.C. § 1343(3), since it sought to redress the deprivation, under color of a state law, of a right secured by the Constitution. The substantive statutory basis for the action was 42 U.S.C. § 1983. Insofar as the constitutional claim is concerned, the only reason for a three-judge court was that plaintiffs sought to enjoin the “enforcement, operation or execution” of a state statute. 28 U.S.C. § 2281. That did not change the jurisdictional basis; it was a concomitant of the relief sought. At the time the complaint was filed, Judge Weinstein had sufficient “jurisdiction” over the constitutional claim to grant a temporary restraining order, 28 U.S.C. § 2284(3), as indeed he did. It is unnecessary to speculate whether in appropriate circumstances the single judge could have, on-the basis of the constitutional claim, granted damages against defendant Wyman in an individual capacity1 or issued a declaratory judgment to plain*184tiffs if they had limited themselves to the two prayers for declaratory relief in the complaint instead of adding another for injunctive relief as well.2 In fact, plaintiffs took the position before Judge Weinstein that a three-judge court was not required because, inter alia, declaratory relief was sought. While Judge Weinstein thought that the request for injunctive relief made a three-judge court necessary, it is not accurate to say that he had no jurisdiction over' any aspect of the constitutional claim when the complaint was filed. If such jurisdiction did exist — and I believe that it did— a closely related statutory claim could also be decided by a single judge under the general principles of pendent jurisdiction, liberally construed in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966).3 Therefore, Judge Weinstein had pendent jurisdiction over the federal statutory claim at the time the case first came before him. It may even be — although it is not necessary to resolve that issue — that the judge could have acted upon plaintiffs’ suggestion that he decide the statutory issue first and convene the three-judge court later, if necessary. Cf. Kelly v. Illinois Bell Telephone Co., 325 F.2d 148 (7th Cir. 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F.2d 317 (6th Cir. 1958); but cf. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568 (1960). The judge declined that invitation not because he thought he lacked the power to so rule but because he felt that convening the three-judge court would avoid “costly” delay.
The crucial question on either theory A or B is whether the elimination thereafter of the constitutional claim as moot necessarily divested the district court of jurisdiction it already had. In United Mine Workers v. Gibbs, supra, the Court did say, 383 U.S. at 726, 86 S.Ct. at 1139:
Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
But the Court spoke there in the context of a federal against a state claim. The point here is that the alternative claim to which pendent jurisdiction attached was not a state claim at all, but a claim based upon a federal statute. Moreover, the dismissal of the constitutional claim here did not occur “before trial” but after Judge Weinstein and the three-judge court had spent days in taking evidence and hearing argument on the motion for an injunction. Indeed, Judge Weinstein issued a preliminary injunction only three days after dissolution of the three-judge court and without any further hearing. Moreover, appellants concede that, in effect, at that point a full trial had been held.4 Certainly there have *185been instances where pendent jurisdiction has been allowed to continue even though the basic federal jurisdictional claim has been denied, see, e. g., Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); United Mine Workers v. Meadow Creek Coal Co., 263 F.2d 52, 59-60 (6th Cir.), cert. denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038 (1959); Travers v. Patton, supra, 261 F.Supp. 110, at 116; cf. Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965), or mooted. Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963).
The reasons Judge Weinstein gave for retention of jurisdiction were as follows:
The pendent claim does not involve state law alone, but poses crucial and important questions of federal statutory law. It vitally affects a national program designated to protect the fundamental rights of children to the sustenance and stable family life which will enable them to develop into full members of our society capable of exercising their rights and responsibilities under the United States Constitution and it involves the expenditure of billions of dollars of federal monies. The courts in the federal system are in at least as good a position as state courts to adjudicate this question of federal law. Nor can this be described as a petty or unimportant controversy of the kind Congress sought to exclude from the federal courts.
*****
A speedy determination of this litigation is highly desirable. From the point of view of the plaintiffs, an unnecessary reduction of their benefits may reduce their income below subsistence level, causing grievous harm. From the state’s vantage point, an unnecessary extension of any temporary restraining order preventing institution of the new reduced benefits would, according to the testimony of a Deputy Commissioner in the State Department of Social Services, result in a loss to the state of up to ten million dollars a month. Dismissal, under the abstention doctrine, would require plaintiffs to commence a new suit in the state courts. Resulting loss of time would make it impossible to decide the issues before administrative arrangements must be made to implement the new state statute by its effective date ■ — July 1, 1969.
Furthermore, the parties have already presented substantial testimony, affidavits and briefs to the Court. The expenditure of time by the litigants and the Court would be, to a large extent, wasted were all these materials to be offered anew in a state court.
These were compelling considerations. Whether pendent jurisdiction exists depends in part upon the same reasons which justify its exercise. On these facts, jurisdiction was justified by the saving of judicial time once the case had gone as far as it had, by concern for fairness to the litigants, and by the appropriateness of having a federal court decide the issue whether congressional conditions to receipt of federal funds are met. See Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 664-71 (1968). It should also be noted that a three-judge court in Texas, faced with a similar issue, has apparently just ruled for plaintiffs in that action on the basis of the same federal statute involved here, while also denying various federal constitutional claims. Jefferson v. Hackney, 304 F.Supp. 1332 (N.D.Texas, July 1, 1969) (opinion to follow judgment).
Various other arguments regarding the exercise of discretion by the district court remain to be answered. The contention is made that the pendency of an administrative proceeding by the Secretary of Health, Education and Welfare made the district court action “premature” or inappropriate. That “proceeding” was apparently pending in April, *186and we are not favored with any indication of HEW action other than its request to New York State for further information. The delays inherent in HEW review and the difficulty of obtaining effective exercise by HEW of any sanction were obvious in King v. Smith, 392 U.S. 309, 326 n. 23, 88 S.Ct. 2128 (1968), in which the Court professed no qualms over deciding the issue of construction of the Social Security Act then before it, although HEW had not acted definitively. Cf. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Note, Federal Judicial Review of State Welfare Practices, 67 Colum.L.Rev. 84, 91-92 (1967). In view of the overpowering justification for Judge Weinstein’s exercise of discretion to decide the statutory issue, I would not regard the speculative possibility of HEW action as a ground for reversal. If plaintiffs are correct on the merits, as I believe them to be, they will continue to suffer severe and possibly irreparable injury for an indeterminate length of time while HEW studies the problem and negotiates with the state. At the very least, therefore, even under the point of view of the majority, the court should exercise its jurisdiction to the extent of enjoining the operation of the New York statute pending completion of HEW proceedings.
Nor do I agree with the suggestion that the action of the district court was improper because it in effect ordered the state to appropriate additional funds. The district court’s holding merely establishes that New York must meet the federal conditions requisite to participation in the federal program or cease its participation. Such a ruling is neither improper nor unprecedented. Thus, a number of courts have recently determined that state máximums on the amount of aid to AFDC families were invalid as violating the equal protection clause or the Social Security Act or both. In at least two of these eases the courts took pains to point out that they were not affirmatively ordering the respective states to appropriate additional funds but only holding that if the states had appropriated insufficient funds to meet the total need they could not “correct the imbalance” by applying the invalid maximums. Dews v. Henry, 297 F.Supp. 587, 592 (D.Ariz.1969); Williams v. Dandridge, 297 F.Supp. 450, 459 (D.Md.1968); cf. Westberry v. Fisher, 297 F.Supp. 1109, 1116 (D.Maine 1969). The majority opinion distinguishes King v. Smith, supra, because it “did not have the effect of requiring the state legislature to appropriate additional funds.” It is true that the Court there emphasized the latitude of a state in setting “its own standard of need and * * * level of benefits,” 392 U.S. at 318, 88 S.Ct. at 2134, but the effect of section 602(a) (23) was not involved in that case. Moreover, I do not believe that either King v. Smith or Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), which deals with residency requirements, would have been decided differently even if it had been assumed — and the assumption seems logical — that the rulings would increase the expense to. a state. In the latter decision, the Court noted that “appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot be an independent ground for an invidious classification." Id. 89 S.Ct. at 1330 (footnote omitted). In any event, were it necessary, we could follow the example of the three-judge court judgment in Jefferson v. Hackney, discussed above, which stayed the injunction of the invalid Texas statute for 60 days in order to give the state an opportunity to implement a plan conforming to the requirements of the federal statute. While it may be likely that New York would in fact decide to appropriate additional funds rather than to take some other course of action, that probability is not equivalent to the judicial usurpation of state legislative functions.
Finally, the point is made that a single judge somehow abuses his discretion by enjoining a state statute on the ground that it conflicts with a federal statute. If all that is meant is that it would have been better for three judges rather than *187one to have ruled on the statutory claim in this case, I agree. The three-judge court had that claim before it and should have decided it rather than dissolving. See point III below. However, if the point is that the single judge in granting injunctive relief thereafter abused his discretion merely because he was a single judge, I disagree. Congress has made the decision not to require three judges when the claim for injunctive relief is based on a federal statute rather than on the Constitution. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed. 2d 194 (1965). Whatever may be the merits of a contrary point of view — see Currie, The Three-Judge Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 55-64 (1964)—the change should now come from Congress.
Thus, I conclude that Judge Weinstein had pendent jurisdiction over the statutory claim whether that jurisdiction be of the three-judge court or a single judge court. Jurisdiction was not lost because the constitutional claim became moot. The judge did not abuse his discretion by deciding the statutory claim on the merits. On this theory, it is not necessary to decide whether, as appellees contend, there would be jurisdiction under 28 U.S.C. § 1343(3) or (4) over a case brought on the statutory claim alone. See Note, Federal Judicial Review of State Welfare Practices, 67 Colum.L.Rev. 84, 111-15 (1967). Finally, it is equally unnecessary to decide whether Judge Weinstein was correct in holding that there was jurisdiction under 28 U.S.C. § 1331.
Under the rulings of my brothers, the procedural labyrinth of the three-judge court has swallowed up a substantial claim that thousands of AFDC recipients in New York State will be greatly harmed by the violation of a federal statute. The United States District Court for the Eastern District of New York originally had jurisdiction over that claim. Thereafter, the three-judge court was properly convened, according to its own statement, and continued to have that jurisdiction. That court never denied that it could exercise such jurisdiction and did not reject it. Yet, the jurisdiction which both the single judge court and then the three-judge court had has now somehow magically disappeared or is inappropriate for exercise. I dissent from this grudging assessment of the jurisdiction and discretion of the district court.
II. Legality of section 131-a,.
Since Judge Hays not only holds that the district court lacked jurisdiction to determine the substantive issues raised in the case before us, but also expresses his views on the merits, I will set forth my reasons for dissenting on that issue as well. This requires an analysis of the interaction of the federal statute, section 602(a) (23), and the New York statute, section 131-a.
Basic to analysis of the fundamental clash between the two statutes is an understanding of how the program of Federal Aid to Families with Dependent Children (AFDC) operates. The AFDC program is over 30 years old and no state is required to participate in it. But all do and receive payments from the federal government in varying amounts on a matching fund basis. Thus, in New York, 50 per cent of all funds paid to “needy dependent children and the parents or relatives with whom they are living,” 42 U.S.C. § 601, is provided by the federal government. Clearly, then, there is an overwhelming federal interest in the administration of the AFDC program in New York, since the state and the federal government pay for it equally.5 While administration of the AFDC program is left to the individual states, each state’s plan for payments must be approved by the federal government and must meet the requirements of the Social Security Act, 42 U.S.C. § 602.
To take advantage of federal AFDC payments, each state must set forth a *188standard of need and provide a level of benefits based upon this standard. 45 C.F.R. § 233.20(a) (2) (i), 34 Fed.Reg. 1394 (1969). The standard of need is determined by adding together the cost of those items deemed necessary for subsistence. As might be expected, both the standard of need and the benefits actually paid vary in content and amount. As to the former, judgments vary in the several states as to what items are necessary for subsistence and what they cost. As to the latter, some states pay 100 per cent of what is defined as the standard of need,6 while others pay an amount which is less than the standard of need, either by fixing benefits at a percentage of that standard, or by imposing a flat maximum on the amount of benefits to a family. New York has paid 100 per cent of the standard of need, as it defines it, and still purports to follow that course.
It is against this background that we must assess the effect of congressional enactment in 1967 of section 602(a) (23), which requires of each state’s AFDC plan that it:
provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.
The critical flaw in appellants’ arguments is that they unavoidably require accepting the proposition that in enacting section 602(a) (23) Congress was engaging in a virtually meaningless exercise of ineffectual verbiage. Simply stated, under the proffered interpretation of this legislation, if at some time between January 2, 1968, the date the section became law, and July 1, 1969, a state has complied with the statute’s direction that
the amount used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs * * * and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted
the state has at once fully satisfied the congressional requirement and is thereafter free promptly to nullify the adjustment and reduce its AFDC payments back to their original levels or, as in the case of New York State, to substantially lower levels. This hypothesis, inherent in appellants’ position, makes a mockery of congressional purpose.
It may be useful to summarize just what the State of New York has done. In August 1968, the Department of Social Services, pursuant to its usual practice, adjusted its standard of need to reflect the rise in the cost of living as determined by a survey it had previously conducted. Even if this initial increase was sufficient “to reflect fully” cost of living changes, however, any attempt at compliance with section 602(a) (23) was vitiated by the passage thereafter of section 131-a of the New York Social Services Law. That section not only wipes out the modest increases of August 1968, but effects additional and very substantial reductions in welfare benefits to the great majority of AFDC recipients. First, the amounts of the regular, recurring payments to families of specific sizes for their fundamental needs are no longer related to the actual age of the oldest child in each family but are standardized sums based on a mean age of the oldest child in all recipient families of that size, an adjustment which results in sharp reductions in regular grants to many families with older children. In addition, “flat grants” to cover major expenditures for clothing and home furnishings are substantially abolished and almost all previously existing “special grants” to cover extraordinary individual needs such as med-*189ieally-dictated special diets, maternity expenses, homemaker services, and the like are eliminated.
The district judge concluded that the actual impact of these changes was “substantial.” For example, he found that the new law was “a subterfuge to enact drastic cuts in both the standard of need and level of payment”; that in New York City the net effect of the law will result in increases in assistance to 245 families and decreases to approximately 173,900 families; and that “the decrease in total AFDC payments under the New York State program is no less than $75,000,-000” annually. On the evidence before the district court, these findings were justified and were surely not “clearly erroneous.” Indeed, my brothers do not challenge them. While appellants originally took the position before us that there was no real reduction in the standard of need, no amount of linguistic acrobatics or technical rationalizations can disguise the glaring fact that the state is critically reducing AFDC standard of need and payments. The crucial question is whether doing so violates a congressional directive contained in section 602(a) (23).
Before consideration of that issue it is helpful again to focus on the basic concepts here involved. There are a number of hypothetical ways for a state to affect welfare payments. It can raise or reduce its standard of need, concluding that a greater or lesser sum is sufficient for subsistence. Whether it pays as benefits 100 per cent, or some lesser percentage, of that standard of need, a change in the standard changes the actual payments. A state can also keep its standard of need constant, but change the percentage of that standard which it will pay. Or a state can leave both its standard of need and level of benefits intact in theory, but impose a flat dollar maximum on the amount going to any one family or adjust the amount of an existing maximum. Section 602(a) (23) refers to changes in “amounts used * * to determine * * * needs” or in “máximums * * * on the amount of aid paid”; it does not specifically refer to a change in the percentage of the standard of need that a state pays.
I come now to the question of what section 602(a) (23) was designed to accomplish. The language clearly calls for an increase in standards of need and in dollar máximums to take account of an increase in the cost óf living of which Congress, like the rest of us, was clearly aware. Ordinarily, an increase in either would cause an increase in money benefits paid out by the state. However, this effect could immediately be negated by any of the devices described above, i. e., by then reducing the standard of need after having increased it, or by reducing the percentage of benefits paid, or by reducing dollar máximums. New York has utilized the first technique and appellants would attribute to Congress the intention of requiring an increase in the standard of need but not caring whether it is thereafter promptly reduced. Even the brief of the United States Department of Health, Education and Welfare, relied on in footnote 6 of the opinion of Judge Hays, appears to balk at such outright nullification of section 602(a) (23).7 Appellants’ position *190attributes to Congress an intention to appear as though it were accomplishing a result which it knew was not being achieved. I am reluctant to presume that to be the case. The language of section 602(a) (23) means something, it certainly calls for an increase in standard of need, thereby suggesting an increase in benefits, and I do not see why it also simultaneously suggests its own nullification. The legislative history relied on by Judge Hays is inconclusive. It shows that the administration bill originally sought a greater increase in benefits (a requirement that all states pay 100 per cent of need) and an annual cost of living adjustment. That something less emerged does not prove that nothing at all was done; if anything, it tends to show the reverse. Appellants argue that Congress could not have enacted even a temporary “floor” on benefits with so little discussion. But undoubtedly such instances have occurred before. While of some weight, the absence of discussion can hardly be controlling. In his opinion granting the preliminary injunction Judge Weinstein painstakingly outlined the progress of section 602(a) (23) through Congress in reaching his determination as to the congressional purpose behind it. He noted that the inadequacy of present welfare payments throughout the states was repeatedly stressed as the motivation for the proposed legislation, and that although additional provisions originally proposed with the section were dropped, the wording of the basic requirements of section 602(a) (23), and presumably the purpose behind it, emerged virtually unchanged.8
Section 602(a) (23) is now the subject of litigation in a number of courts. Prior to this case, the only other federal judge who has undertaken an analysis of the section concluded that it prevented a cut in benefits. In Lampton v. Bonin, 299 F.Supp. 336 (E.D.La.1969), a three-judge court was convened to determine the validity of a ten per cent reduction in AFDC grants by the Louisiana Department of Welfare, which plaintiff recipients attacked on a number of grounds, among them that the reduction violated section 602(a) (23). In a decision rendered in April 1969, two of the three judges held that the question was premature, since the state had until July 1, 1969 to comply with the statute. 299 F.Supp. at 349. In a lengthy dissent, Cassibry, J., did reach the merits of the issue, and concluded that the section prohibited any reducton in benefits even before July 1.
Congress necessarily intended to maintain at least the status quo by setting a floor below which ADC payments could not be reduced, which is certainly the level of ADC payments on January 2, 1968, the base figure from which the increases required by section 402(a) (23) [section 602(a) (23)] are to be determined. Though this prohibition on reductions is not expressly stated in the statute, it is necessarily implied, for any other conclusion is “plainly at variance with the policy of the legislation as a whole.”
* * * * * *
ADC payments in all states are predicated upon the need standard; if this standard is increased, as section 402 (a) (23) requires, the budgetary deficit must also increase accordingly. In those states paying the budgetary deficit in full, as well as in those states that pay only a percentage of the budgetary deficit (or the standard of need), section 402(a) (23) necessarily requires increased ADC grants correspondent to the increase in the standard of need, for a percentage maximum (100 percent or less) kept constant automatically translates increased need into an increased payment. Similarly, in those states imposing an arbitrary dollar maximum on the size of the assistance grant, section 402(a) (23), by requiring that the máximums imposed be adjusted in accordance with the change in the cost of living, insures increased grants for *191all recipients. Regardless of which system of computing ADC payments the state follows, section 402(a) (23) is therefore designed to effectuate increased ADC recipient grants. The language of the statute could not be any clearer. 299 F.Supp. at 348.9
More recently, a three-judge court in Texas considered the issue whether a cut in AFDC benefits violated section 602(a) (23). Although the opinion of the court has not yet issued, its judgment has; the latter indicates that the court unanimously concluded that a reduction in benefits violates the federal statute. Jefferson v. Hackney, 304 F.Supp. 1332 (N.D.Texas, July 1, 1969).10
In both cases, the statutory issues were whether Congress intended by section 602(a) (23) to put at least some floor under welfare payments, and whether the state statute ran counter to that intention. In neither instance did the state legislation reduce a standard of need; rather, the mechanism used to lower benefits was primarily a reduction in the percentage of payment applicable to that standard.11 Even though that legislative device is not mentioned at all in section 602(a) (23), both Judge Cassibry and apparently the Texas court felt that the federal statute prevented indirect as well as direct evasions of congressional intent. In this case, the action of the State of New York is in even sharper conflict with section 602(a) (23) because, according to the trier of fact, New York has done the one thing that the section is undeniably designed to prevent; i. e., the State has directly reduced the standard of need despite the admonition of the section to adjust that standard “to reflect fully changes in living costs.” Indeed, New York has reduced the standard — and therefore the benefits paid — to a level below the standard in effect for most recipients before any cost of living adjustment.
I do not suggest that the meaning and effect of section 602(a) (23) are unmistakably clear. But, on balance, I think that its language and the legislative history relied on by Judge Wein-stein show that Congress intended AFDC payments throughout the country to be increased somewhat to reflect the rise in the cost of living and that the levels of payments so adjusted were to remain stationary at least pending further congressional action. That this intention was far from unreasonable is sufficiently demonstrated by the fact, supported by ample evidence on the record below, that even in New York State, which has one of the highest levels of AFDC benefits in the United States, AFDC recipients live at or below a bare subsistence level. Accordingly, I conclude that since New York has not complied with section 602(a) (23) properly read, the injunction was justified.
III. Dissolution of the three-judge court.
The last issue concerns the appeal from dissolution of the three-judge court. I think that there is a very substantial question as to whether the court *192was correct in holding that the amendment to section 131-a rendered plaintiffs’ constitutional claim either “moot” or “unripe.” Plaintiffs very persuasively argue that the only effect of the amendment was to grant purely discretionary administrative power to increase the level of Nassau County payments and that the mere possibility that such discretion might be exercised to cure an allegedly prohibited discrimination is far from sufficient to void the constitutional issue. Nor is it at all clear that the subsequent increase of the Nassau County payment schedules retrospectively corroborates the dissolution of the three-judge court, since plaintiffs assert —and defendants do not deny — that the increase still fails to bring Nassau County levels of payment up to those in New York City. Cf. the recent convening of a three-judge court in Rothstein v. Wy-man, No. 69 Civ. 2763 (S.D.N.Y., July 7, 1969).
Moreover, my view is that the three-judge court should have decided the statutory question which concededly remained in the case before it. All of the reasons referred to in Part I of this opinion for the exercise of pendent jurisdiction by Judge Weinstein alone applied to the three-judge court. In addition, dissolution of the court allowed the argument to be made — and to be accepted— that the jurisdiction of the three-judge court had disappeared. It would have been quicker, simpler and more appropriate to the kind of pressing issues before that court if it had exercised its power to the fullest.
If I thought that the dissolution of the three-judge court completely divested Judge Weinstein of all jurisdiction then I would regard the decision to dissolve as an abuse of discretion and would dissent on that ground too. However, as Part I, supra, indicates, I do not attach that consequence to dissolution and, accordingly, need not go that far.
. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Kletschka v. Driver, 411 F.2d 436 (2d Cir., April 22, 1969).
. That the state statute could be held unconstitutional in a declaratory ruling by the single judge seems settled. See ALI Study of the Division of Jurisdiction Between State and Federal Courts 245 (Tent.Draft No. 6, 1968), recommending that such a declaratory judgment require a three-judge court but noting:
[T]he requirement is here extended to cases seeking only a declaratory judgment, a remedy which was unknown in 1910. Three judges are not now needed in such a case. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154-155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Flemming v. Nestor, 363 U.S. 603, 606-607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
And see Currie, The Three-Judge Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 13-20 (1964).
. The basic and pendent claims “must derive from a common nucleus of operative fact,” 383 U.S. at 725, 86 S.Ct. at 1138, clearly present in this case, e. g., the level of benefits before and after section 131-a and the relationship between benefits and need. The court has power to hear all of the claims if plaintiffs “would ordinarily be expected to try them all in one judicial proceeding,” id., assuredly the case here.
. See Appellants’ Application for a Stay of Further Proceedings in the District Court, June 13, 1969, at 2:
*185The extraordinarily broad nature of the preliminary injunction in this case and the opinion of the Court below which supported it is such that every real issue in the c¿se had been decided by the District Court and is presently before this Court.
. Actually, tlie state’s direct monetary interest is even smaller, as local govern-xnents provide a substantial portion of the non-federal funds.
. In determining the amount of aid to be paid to a particular individual or family the state may, of course, take into consideration other income or resources of the recipient. See 42 U.S.C. § 602(a)(7), (8).
. Thus, the brief notes:
If a State last priced its assistance standard several years ago, and now is simplifying its standard as well as repricing it, question may arise whether the content of the new standard is equivalent to that of the old, and whether the elimination of items or the combination of items in the standard results in a contraction in the content of the standard that offsets in whole or in part the adjustment of prices to reflect changes in living cost. The second sentence of the regulation seeks to foreclose this possibility and to assure that the repricing will apply to at least the same scope of items as the previous pricing before January 2, 1968.
•j* sk *|c
To adjust máximums on the one hand and to reduce them on the other would be an outright nullification of, and failure to comply with, the requirements of section 402(a) (23) [section 602(a)(23)], and would not constitute compliance with that section.
. See Rosado v. Wyman, 304 F.Supp. 1356, 1376, 1377 (E.D.N.Y.1969). See also note 9, infra.
. The dissenting opinion also carefully analyzed the legislative history of section 602 (a) (23) and concluded, as did Judge Weinstein, that though not voluminous the history of the section clearly evinced a Congressional intent that state AFDC payments be increased. 299 F.Supp. at 348.
. See also Williams v. Dandridge, 297 F.Supp. 450, 464 (D.Md., 1968), where the three-judge court noted in dictum:
As it shows on its face, § 213(b) [section 602(a) (23)] was designed to increase benefits to keep pace with increased living costs.
. Apparently both Louisiana and Texas formerly paid on a basis of 100% of their standards of need,' subject to dollar maximums on the amount of aid to any family. After increasing its standards to comply with section 602(a) (23), Texas evidently reduced its percentage payment to 50%; Louisiana merely cut all grants by 10%, including those grants based on dollar maximums. See Lampton v. Bonin, supra, 299 F.Supp. at 348, 354 & n. 16.