dissenting.
There are two constitutional provisions that, in my view, require the Secretary to award unpaid SSI benefits to the elderly mental patients confined at Trenton Psychiatric Hospital whose benefits were terminated because of the refusal of the Joint Committee on Accreditation of Hospitals to *90accredit that institution.1 First, I believe that the statutory and regulatory scheme under which the JCAH, a private body, terminated these benefits amounted to an unconstitutional delegation of legislative and adjudicatory power to a private body. Second, I believe that the statutory and regulatory scheme violates the due process clause of the fifth amendment. It irrationally denies SSI benefits to those helpless souls, confined through no fault of their own in psychiatric hospitals deemed inadequate, while awarding benefits to those similarly situated, but confined in “better” hospitals; moreover, the denial of SSI benefits to these incarcerated mental patients places little, if any, pressure on their guardians to improve conditions. For these reasons, the asserted basis for the statutory and regulatory scheme does not rise to even the minimal level of rationality required by the Constitution. Cf. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). I treat these issues in turn.
I.
When we heard this case in January, the delegation issue was of significant importance, both practically and doetrinally. In the interim, however, the statutes in question have been amended — -perhaps because of the constitutional concerns I identify today — to eliminate JCAH certification as a condition for receipt of various social security benefits by mental patients. See Deficit Reduction Act of 1984, Pub.L. No. 98-369 § 2340 (July 18, 1984).2 I thus keep my dissenting remarks on this point reasonably brief.
Under the statute in effect at the time benefits at issue here were terminated, the JCAH was not accountable to either the government or the individuals most affected by its decisions. It might “define” a “psychiatric hospital” however it chose, and might use whatever procedures it wished in developing that definition. Nothing required the members of the JCAH (or those to whom it in turn delegated responsibility) to listen to opposing viewpoints, and the JCAH regulations were not subject to judicial or administrative review to uncover substantive or procedural shortcomings. The JCAH’s freedom to apply its regulations to individual hospitals was also unfettered; the JCAH was not required to use any specific procedures in its evaluation of individual hospitals, nor was there any provision for administrative or judicial review of those “adjudicatory” procedures.
The majority makes a valiant effort to interpret the statutes under attack here in order to save them. It says that because any hospital denied JCAH certification could seek accreditation through simultaneous “distinct part” surveys, legislative and adjudicatory authority was not unconstitutionally delegated to a private body.3 The majority’s understanding of the provisions for “distinct part” surveys, which is critical to the majority’s disposition of the delegation claim, is that the Secretary can correct adjudicatory errors in the JCAH’s application of its own regulations to a particular hospital, and can also correct problems with the JCAH’s rules themselves. As the majority phrases it, the Secretary’s regulations in evaluating an institution to *91determine whether it is a psychiatric hospital need not even be “in moderate compliance with the JCAH’s definition of adequacy.” Majority opinion, at 88. The problem with this analysis is that the plain words of the statute that allow for distinct part certification require that “such distinct part meets requirements equivalent to [those required for JCAH] accreditation.” 42 U.S.C. § 1395x(f) (1982) (emphasis added). In my view, however, “equivalent” means equivalent; it does not, as the majority seems to suppose, mean whatever the Secretary wishes it to mean, or generally refer to things that are quite dissimilar.4
The clear import of the statutory language is that psychiatric hospitals may be accredited through a “distinct part survey” conducted by the Secretary of HHS according to regulations that are the “equivalent” of JCAH regulations, but that Congress intended to protect hospitals from only erroneous or (perhaps) proeedurally defective applications of the regulations. Congress did not provide any remedy for problems with the substantive regulations or the procedures by which they were adopted.5 It is this failure, which the majority fails to recognize, that concerns me. I thus turn to the merits of the delegation claim.
In many areas, the courts have historically allowed private bodies to exercise authority which could be characterized as amounting to a deprivation of a property or liberty interest. See generally, Note, The State Courts and Delegation of Public Authority to Private Groups, 67 Harv.L. Rev. 1398, 1399 (1954). Family law provides a familiar example. ■ See Parham v. J.R., 442 U.S. 584, 602-03, 99 S.Ct. 2493, 2504-05, 61 L.Ed.2d 101 (1979); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). And it is also true that, even in areas traditionally thought of as belonging in the realm of public rather than private decision-making, courts have tolerated broad delegation of law-making power to private bodies. See Todd & Co., Inc. v. SEC, 557 F.2d 1008 (3d Cir.1977). There comes a point, however, where concerns about the fairness of decision-making that affects the interests of individuals in public benefits must outweigh the need for uncanalized exercises of “expertise.”6 Absent exigent circumstances not present here, courts should not permit Congress to delegate to private bodies, that are not required by statute to listen to affected parties in making their regulations, and whose regulations are not subject to review under the Administrative Procedure Act or any other federal or state statute, the right to take actions in areas of traditional public law that seriously affect individuals’ rights, especially those of perhaps the most powerless group in this nation: the elderly handicapped. In my opinion, the delegation of authority in this case to the JCAH reached that impermissible point.7
*92II.
I would also direct the Secretary to award back benefits to the elderly patients confined at Trenton Psychiatric Hospital on grounds that the statutory scheme under which their benefits were terminated — a scheme that can most charitably be described as labyrinthine (but more accurately as a tragic accident, cf. Sckweiker v. Wilson, 450 U.S. 221, at 244, 101 S.Ct. 1074, at 1087, 67 L.Ed.2d 186 (1981) (Powell, J., dissenting)) — is so irrational as to violate the due process clause of the fifth amendment in both its “substantive” and “equal protection” components.
I agree with the majority that, either under a substantive due process approach or under an equal protection approach, the statutes in question must be upheld if there is a rational basis and that, “[gjiven the intricate judgments which are always a part of allocating public expenditures, a finding that such an allocation is irrational must be made only in the most unusual circumstances.” Majority Opinion at 86. Unlike the majority, however, I have great trouble in finding even a scintilla of rationality in providing comfort benefits to inmates of psychiatric hospitals found to meet appropriate standards, but to deny those benefits to inmates in psychiatric hospitals found substandard. Cf. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The majority characterizes this legislation as “perhaps harsh.” In my view, the legislation is extraordinarily harsh. The absence of economic resources needed to participate in the market leaves these confined patients wholly in the control of their institutional keepers. According to testimony adduced before the district court, the comfort allowances were used, among other things, to save for occasional visits home that otherwise would not have been possible. As Judge Feinberg observed in Koe v. Califano, 573 F.2d 761, 763 n. 5 (2d Cir.1978), “SSI payments make possible the purchase of items essential to any human existence transcending bare subsistence. The loss of such payments imposes a readily understandable burden; less obvious but perhaps no less significant are the uncertainty and feelings of rejection inflicted by the continuous threat of deprivation on those who have so little and are mentally ill.” There is considerable evidence in this record that supports Judge Feinberg’s comments as to the psychologically detrimental effect of cutting off these benefits. Cf. Vecchione v. Wohlgemuth, 377 F.Supp. 1361, 1367-68 (1974).
The majority appears to justify the statutes in question on grounds that, because psychiatric hospitals have had a history of abuse and neglect, their accreditation must be undertaken carefully. While I cannot quarrel with this generalization, I believe it misses the point. The issue is not simply the propriety of special standards for certification of psychiatric hospitals; the issue is the propriety of the consequences imposed by Congress on those incarcerated in psychiatric hospitals that are found to be substandard. It is only when dealing with the equal protection issue that the majority faces up to this more difficult aspect of the case before us.
Unfortunately, the justifications provided by the majority make little sense. According to the majority, Congress could rationally believe that federal revenues should not “bankroll local efforts” or supplant the “state’s traditional obligation to provide for the ‘comfort’ of its patients” when “it has been determined that [the state’s] efforts are either misguided or insufficient,” or that the State would not make effective use *93of the funds thus freed. As presented, however, this justification is fatally incomplete. In the effort to complete its justification, therefore, the majority suggests two theories. First, Congress could “assume” that deprived patients at the unaccredited hospitals would attempt to transfer to other institutions. Second, the patients might pressure the state either to replace the lost benefits or to better adapt its substandard institutions to the demands of the JCAH.
Both of the alternatives by the majority in its effort to save its thesis are less than fully persuasive. To take the easier target first, the notion that elderly confined psychiatric patients might pressure the state is just unrealistic. Moreover, Congress did not need to “assume” that patients would be able to transfer to other hospitals. Congress could have taken steps to encourage states to allow transfers or could have terminated benefits to patients confined at substandard psychiatric hospitals only where transfers were allowed.8 Given the low level of scrutiny applicable to the statutes in question here, however, perhaps the majority is right in permitting Congress to make this assumption. My point is simply that we ought not be so quick or so enthusiastic in embracing invented justifications of such suspect character.
The more telling flaw with the majority’s analysis, however, is the injustice which results from depriving the wards (the patients) of benefits because their guardians (the substandard institution) are incompetent. As the Supreme Court recognized in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), it is seldom rational to visit the sins of the parents upon their child. The majority again seeks to evade the problems implicit in this case and the learning of Plyler v. Doe by arguing that deprivation of the comfort benefits is not “punishment,” because the money freed will presumably help others. But nothing in Plyler turned on the “punitive” nature of the deprivations involved. Moreover, there was simply no argument in Plyler that the deprivation of an education to the children of illegal aliens was any less a deprivation or “punishment” because Texas could use the money for other public programs.
Indeed, perhaps the only rational basis for such a system is the belief that the termination will spur the parent or guardian to improve itself so that the child or ward will be aided. While such a belief may have a rational basis in some instances, it strains credulity here. If the state does not care enough about its psychiatric patients to provide them with an adequate facility, why would it seek to improve itself when the federal government terminated certain benefits to the patients? The procedure is as irrational as a program that would cut off a child’s subsidized lunches because its parents abused and neglected the child. And the majority’s suggestion that New Jersey will supply the deprived comfort money seems most unrealistic. Cf Schweiker v. Wilson, 450 U.S. at 246, 101 S.Ct. at 1089 (Powell, J., dissenting).
In downplaying the problems I have identified, the majority relies heavily on the approach of Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). I concede that Schweiker does not require much in the way of rationality for the government to allocate funds, but it does not, in my view, necessitate or justify the result reached by the majority in this case. Schweiker dealt with the group not involved in this ease, confined mental patients 18 to 64 years of age, and upheld that portion of the regulatory scheme at issue here that deprived that group of comfort money on the basis of age and residence in a public mental institution not receiving Medicaid funds for their care. *94The majority of the Court took that view that, in this area of low level scrutiny and the predominant interest and responsibility of the state in providing for the mentally ill, there was no reason to subject the congressional judgment as to the expenditure of federal funds to constitutional restraint.9 But Schweiker was a 5 to 4 decision, with a powerful dissent by Justice Powell, and I do not believe that the court would extend its result in a case where the problems recognized in the 1982 Plyler decision are added to those considered in Schweiker.
In his Schweiker dissent, Justice Powell observed:
But, it is argued, Congress rationally could make the judgment that the States should bear the responsibility for any comfort allowance, because they already have the responsibility for providing treatment and minimal care. There is no logical link, however, between these two responsibilities. See U.S. Dept, of Agriculture v. Murry, supra. Residence in a public mental hospital is rationally related to whether the Congress should pay for the patient’s treatment. Legion v. Richardson, 354 F.Supp. 456 (SDNY), summarily aff’d sub nom. Legion v. Weinberger, 414 U.S. 1058 [94 S.Ct. 564, 38 L.Ed.2d 465] (1973). The judgment whether the Federal Government should subsidize care for the mentally ill in large public institutions involves difficult questions of medical and economic policy. Supra [, 450 U.S. at 241-42, 101 S.Ct.] at 1086. But residence in a public mental institution, as opposed to residence in a state medical hospital or a private mental hospital, bears no relation to any policy of the SSI program.. The monthly $25 allowance pays for small personal expenses, beyond the minimal care and treatment provided by Medicaid or “other programs.” H.R.Rep. No. 96-451, pt. 1, p. 153 (1979). If SSI pays a cash benefit relating to personal needs other than maintenance and medical care, it is irrelevant whether the State or the Federal Government is paying for the maintenance and medical care; the patients’ need remains the same, the likelihood that the policies of SSI will be fulfilled remains the same.
450 U.S. at 246-47, 101 S.Ct. at 1089. When one adds to these powerful considerations the facts that the patients in this case are unable to transfer or effectively to pressure the institutions to upgrade their care; that the deprivations involved are solely based on the shortcomings of the institutions, thus raising Plyler v. Doe problems; and that the “rationale” suggested to uphold the scheme is not apparent from the actions of Congress but rather is an ex post construction of government attorneys, I do not believe that the Schweiker rationale should be extended to this case. In short, the statutory scheme is too irrational to be upheld under the fifth amendment.
I respectfully dissent.
. I agree with the majority that the claim of the under 21-year old plaintiffs is now moot.
. Under the new law, in order to be a "psychiatric hospital," an institution must meet the more objective requirements of 42 U.S.C. § 1395x(f)(l)-(4), except (apparently) if, pursuant to the revised 42 U.S.C. § 1395bb(a) the "Secretary finds that accreditation of an entity by ... any rational accreditation body provides reasonable assurance that any or all of the conditions of ... [42 U.S.C. § 1395x(f) ] are met, he may, to the extent he deems it appropriate, treat such entity as meeting the condition or conditions with respect to which he made such finding.” Thus, JCAH accreditation of Trenton Psychiatric Hospital might render that institution a "psychiatric hospital,” but a refusal to accredit would not appear to have the preclusive effect that it did prior to enactment of the Deficit Reduction Act of 1984.
. Incidentally, it appears that the distinct part survey route to accreditation of an entire institution has never been attempted, and its utility or even availability seems more theoretical than real.
. Indeed, an appropriate plaintiff might be able to challenge under the Administrative Procedure Act any regulations defining a "psychiatric hospital" that were not "the equivalent" of JCAH regulations.
. The concern is the same whether or not the JCAH itself decided to allow broad participation in its rule-making procedures, which it apparently did not, and which was the subject of the plaintiffs' justifiable complaint. While broad participation might eliminate some concerns, it was not required by Congress. For a critical account of JCAH accreditation procedures, see "TPH Accreditation: Paperwork Outweighs Therapy,” Trenton Times, July 2, 1984, at 1.
. It is, of course, true that, if the private body goes too far beyond the pale or behaves improperly in the exercise of its delegated authority, Congress can — just as it has done here — withdraw the delegation. This theory would allow all delegations, as consistent with a theory of a government responsible to the people, because the people’s representatives retain ultimate control. The problems with the theory are also obvious.
. To reach the conclusion that the statutory scheme is an unconstitutional delegation, I must, of course, deny defendant’s cross-appeal from the failure of the district court to grant summary judgment because of the patients’ alleged lack of standing to bring this suit. Defendants argue that TPH would not have qualified as a psychiatric hospital under the relevant statutes even if the JCAH had accredited it. Assuming arguendo that this argument has theoretical validity, see Doherty v. Rutgers School of Law, 651 F.2d 893 (3d Cir. 1981), disputed issues of material fact remain. Summary judgment would thus have been inappropriate. Defendants also argue based on Simon v. Eastern Ken*92tucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), that, because TPH’s participation in the programs involved here is voluntary, JCAH accreditation might not ameliorate the injury claimed by the patients. I would reject this argument. Simon does not hold that the plaintiffs must prove to a certainty that the relief sought will cure the ill complained of. Rather, for constitutional standing to be absent, the likelihood of redress must be "remote” or "purely speculative.” Defendants finally argue that the plaintiffs have not been injured because other entities are responsible for assuring plaintiffs' welfare and because these entities do not thereby acquire any claim against the plaintiffs. Disputed issues of fact remain on this claim; summary judgment would thus be inappropriate.
. I note that the record suggests that the plaintiffs here could not transfer to other institutions. Congress could have conditioned the receipt of any aid to the state on the ability of the patients to transfer. Arguably, of course, the proposed solution might only exacerbate the problem. Patients in states with poor hospitals that refused to transfer patients out of those hospitals and who would thus be arguably even worse off would be denied aid whereas patients in states that “only" temporarily deprived their patients of adequate care would receive benefits. All of this simply points out the larger problem of making a patient's receipt of aid dependent on the quality of the institution in which he or she is confined. See injra.
. This case, of course, deals with the group entitled to the funds under the statute that denied benefits to the plaintiffs in Schweiker.