concurring in judgment.
I agree with the majority’s conclusion and thoughtful opinion that the district court’s order should be vacated, and that further discovery should be conducted. I write separately because in my opinion the majority makes a too premature decision to apply the strictures of City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), in a facial challenge to Chapter 17-500. As will be noted later, the factual matrix and the legislative standards in this case are, in many ways, remarkably different than those involved in Croson. While it is appropriate for the majority to inquire “into the substantive law on the constitutionality of minority set-asides” (Majority at 1266), I am not convinced that Croson is concentric with this case, and thus I write to make clear what I think are the significant differences.
In Croson, the Supreme Court set forth the strict scrutiny analysis applicable when a federal court is presented with a challenge to a race-based minority set-aside. Given the standard for summary judgment, I find problematic the fact that the majority might be implicitly assuming that strict scrutiny is applicable to Chapter 17-500. On its face, the ordinance does not assign government benefits according to an individual’s race, nor does it require the City to do so. A general policy that permits but does not require unconstitutional conduct is not facially unconstitutional. See, e.g., Cone Corp. v. Florida Dept. of Trans., 921 F.2d 1190, 1209 (11th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2238, 114 L.Ed.2d 479 (1991). I submit that a careful review of the record in this case demonstrates that there are issues of material fact in dispute concerning whether the Cro-son analysis should be applied to Chapter 17-500.
For present purposes, strict scrutiny only applies when the government grants a benefit or imposes a burden because of the race of the plaintiff. The majority’s semantic approach of placing the word “goals” in quotes and then changing the terminology to “set-aside requirements,” see Majority at 1264, is not an adequate analysis of the terms of the challenged ordinance. With all due respect, I submit that the present record cannot by itself support the application of Croson’s strict scrutiny analysis to this case. In the words of Justice O’Connor, “[t]his dispute regarding the appropriate standard of review may strike some as a lawyer’s quibble over words, but it is not. The standard of review establishes whether and when the Court and Constitution allow the Government to employ racial classifications.” Metro Broadcasting, Inc. v. F.C.C., — U.S. -, 110 S.Ct. 2997, 3033, 111 L.Ed.2d 445 (1990) (O’Connor, J., dissenting).
When presented with an equal protection challenge the first duty of the court is to determine what classifications have been created by the ordinance. Only after that issue is settled can the court determine the level of scrutiny appropriate to the classifications involved and proceed to the merits of the plaintiff’s case. See Attorney Gen*1269eral of New York v. Soto-Lopez, 476 U.S. 898, 906 n. 6, 106 S.Ct. 2817, 2470 n. 6, 90 L.Ed.2d 899 (1986); Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1079-80, 39 L.Ed.2d 306 (1974); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972). A court cannot merely assume that a suspect classification has been created. See San Antonio Independent School District, 411 U.S. at 19, 93 S.Ct. at 1289. This determination must be made in light of how the ordinance actually is implemented. In San Antonio Independent School District, both the majority and dissenters recognized that their task was “to ascertain whether, in fact, the ... system has been shown to discriminate ... and, if so, whether the resulting classification may be regarded as suspect.” 411 U.S. at 20, 93 S.Ct. at 1289-90; Id. at 94, 93 S.Ct. at 1328 (“It is, of course, essential to equal protection analysis to have a firm grasp upon the nature of the discrimination at issue.”) (Marshall, J., dissenting); see Long v. Saginaw, 911 F.2d 1192, 1198 n. 3 (6th Cir.1990); Cone Corp. v. Hillsborough County, 908 F.2d 908, 911 (11th Cir.), cert. denied — U.S. -, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990); Conlin v. Blanchard, 890 F.2d 811, 817 (6th Cir.1989); General Building Contractors Assn., Inc. v. Philadelphia, 762 F.Supp. 1195, 1205 (E.D.Pa.1991); cf. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 653, 107 S.Ct. 1442, 1463, 94 L.Ed.2d 615 (1987) (O’Connor, J., concurring in judgment) (concerning Title VII). The appropriate test is “but for”: But for the plaintiff’s race, or gender, would he have been disadvantaged by the challenged statute? See, e.g., Los Angeles, Dept. of Water & Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 1377, 55 L.Ed.2d 657 (1978).
Of the two relevant provisions in the ordinance, the first adopts goals for City contracting. It was this section of the ordinance upon which the district court based its conclusion that Chapter 17-500 creates suspect classifications. On the summary judgment record, the district court concluded that these goals were being implemented as set-asides, and that therefore strict scrutiny was warranted. Although it is unclear, it is apparently this section of the Ordinance that the majority relies upon to justify its application of Croson to Chapter 17-500. However, because this provision merely sets goals and requires no action on the part of the City, this provision does not create any rights on the part of minority owned firms or any responsibilities owed those firms by the City. This provision, on its face, therefore, does not trigger strict scrutiny, in contrast to the Richmond Plan considered in Cro-son.
Of equal importance is the fact that when ruling upon a facial challenge to a statute, a court must consider any limiting construction a state or municipality has placed on a law, including any administrative interpretation and implementation of that law. See Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661 (1989); Hoffman Estates v. Flipside, 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982); Hotel & Restaurant Employees & Bartenders Int’l Union v. Read, 832 F.2d 263, 268 (3d Cir.1987); Trade Waste Management Assoc. v. Hughey, 780 F.2d 221, 236 n. 6 (3d Cir.1985). As this court noted in Hohe v. Casey, 868 F.2d 69, 71 n. 2 (3d Cir.1989): “it is the procedures followed ... which are at issue, since ‘the courts will not invalidate a statute on its face simply because it may be applied unconstitutionally, but only if it cannot be applied consistently with the Constitution.’ ” (quoting Robinson v. New Jersey, 806 F.2d 442, 446 (3d Cir.1986), cert. denied 481 U.S. 1070, 107 S.Ct. 2463, 95 L.Ed.2d 872 (1987)).
The cornerstone of the Contractors’ argument is that the 15%, 10%, and 2% figures constitute the operative section because they allegedly set a rigid quota, or even floor, for the participation rate of the groups to which they apply. The Contractors conclude that because only minorities, women, and handicapped individuals are listed as qualifying for a percentage, this quota is race, sex, and handicapped based. *1270However, as the parties made clear at oral argument, there is a material issue of fact in dispute over which section is the so-called “operative” section of the ordinance.
At oral argument before this court, the City contended that “the goals do not require participation at these levels, they are goals for measuring the success of the Affirmative Action Program. They don’t require that there be fifteen percent minorities or ten percent female.... they are really goals for measuring the program.” Transcript of Oral Argument 15-16. The City’s argument is supported by testimony given at council hearings when the handicapped goals were being discussed. At issue was whether the five percent goal for contracts awarded to the handicapped would, in practice, be a goal or a quota. As the discussion reveals, the Procurement Office did not oppose the five percent goal in the ordinance because it would function as a goal, just as the percentages for Minority Business Enterprises (“MBEs”) and Female Business Enterprises (“FBEs”) did. Mr. Curtis Jones, from the Minority Business Enterprise Council, asked whether the handicapped provisions “fall under the same provisions within 17-500 which allow for a waiver process, which allow for us to adjust and amend on a contract-by-contract basis. Is that true?” He then described the system used for MBEs and FBEs: “If we have that system as a part of this goal, then we can make adjustments based on a fair review to see if there was a good-faith effort made by prime contractors to achieve the goals. So if we are talking about using the same mechanics that we do to administer for minorities and females....” The answer was yes.
Jones then responded “then I’m comfortable with what we call a goal. It’s not a quota; it’s a goal.” IYB at 755-57 (emphasis added). The conclusion that the Disadvantaged Business Enterprise (“DBE”) percentages were acting as goals and not quotas was also borne out by a statement of Councilperson Specter: “And we may not be able to reach that goal the first year, as we did not with minorities and women. But every year we come closer and closer to those goals.” IVB at 750. In addition, there was specific evidence that the percentage used to gauge the participation of women does in fact work as a goal, not a quota: “Let’s look at the female category for our program for example. We set a goal of ten percent for female entrepreneurs as an addition to the minority component. What we found was that that was very difficult to achieve. We’ve come in in about the neighborhood of a little better than eight percent overall.” IVB at 760.
Under the standard for summary judgment, these colloquies create an inference that the City did not apply the ordinance inflexibly, and in fact distinguished the DBE goals from a quota system. This record creates a triable issue of fact over whether the percentages create a quota system or merely goals in Philadelphia. If the percentages do not fix any amount of the work to be allocated, then no right of the Contractors is infringed.
Indeed, in Croson, the issues of goals and flexibility were of paramount importance.
The Richmond Plan denied certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. To whatever racial group these citizens belong, their “personal rights” ... are implicated by a rigid rule erecting race as the sole criterion in an aspect of public decisionmaking.
488 U.S. at 493, 109 S.Ct. at 721 (emphasis added). The Court also noted that the Richmond Plan employed a “rigid racial quota,” id. at 499, 109 S.Ct. at 724, and that the effect of the plan was to “apportion[] public contracting opportunities on the basis of race.” Id. at 505, 109 S.Ct. at 727. The Court noted that in the public contracting milieu, “it is difficult to see the need for a rigid numerical quota.” Id. at 508, 109 S.Ct. at 728 (emphasis added). In the present case, there is a material issue of disputed fact concerning whether a quota has been created, and a concomitant disputed issue over whether Croson is applicable.
*1271I also note that even if the goals do parcel out contracts on the basis of disadvantage status, there is a material issue of disputed fact over whether the classification “disadvantaged status” triggers heightened scrutiny. There is a disputed issue of material fact over whether, under the definition of disadvantaged, “only minorities, women, and handicapped can ever be granted preferred status.” I App. at 270. The City introduced an affidavit from the Executive Director of the MBEC that stated: “Any disadvantaged member of Plaintiff organizations ... who are disadvantaged are eligible for certification as a DBE without regard to their race, gender or physical capability. The MBEC considers economic and social factors in addition to race and gender in determining whether an applicant should be certified as a DBE.” II App. at 286 (emphasis added). Giving the City the benefit of reasonable inferences, as we must on a motion for summary judgment, the record reveals that the intent of the council was to conduct an “investigation regarding the financial background of applicants to ensure that they are both socially disadvantaged and economically disadvantaged in terms of their history.” IVB App. at 536-37. As discussed above, the City has introduced un-controverted evidence, by affidavit, that this is actually how the chapter is administered. See also II App. at 364 (statement of Blackwell, not considered by the district court, that the ordinance was not intended to, and does not apply to, MBEs or FBEs that are not disadvantaged). The language of the ordinance supports this interpretation, and there is no evidence in the record to the contrary. In short, even assuming that the goals do in fact allocate city contracts, a conclusion this record does not dictate, if the City is correct in its assertion that the classifications merely distinguish individuals along economic and social lines, the ordinance should only be reviewed under the traditional rational basis test. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
We are obligated to view the record in the light most favorable to the City. See Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1423 (3d Cir.1991) (in banc). The majority’s implicit assumption that the Cro-son strict scrutiny analysis applies to the Ordinance constitutes a resolution of disputed facts that goes right to the heart of whether strict scrutiny is warranted in this case. See Ohio v. Akron Center for Reproductive Health, — U.S. -, 110 S.Ct. 2972, 2980-81, 111 L.Ed.2d 405 (1990); see also id. 110 S.Ct. at 2981 (“The Court of Appeals should not have invalidated the ... statute on a facial challenge based upon a worst-case analysis_”). The state of the record below should leave us uncertain of the applicability of Croson to Chapter 17-500. I would hold that summary judgment on the question of the standard applicable to the goals section of Chapter 17-500 was inappropriate based on the record below.
The second relevant section provides that if a city agency appears unable to meet the goals, “the MBEC may request that the agency furnish to it a compliance plan.... ” If the MBEC concludes that the compliance plan is insufficient, “the MBEC may recommend that the agency revise its plan.... Such recommended revisions may include” the sheltered market. (II App. at 317 (emphasis added).) This provision, the sheltered market provision, is the only section of the ordinance that, on its face, has the potential for parceling out city contracts on the basis of race, gender, or handicap status, and for therefore triggering heightened scrutiny. In order for the City to defeat a facial challenge to the Ordinance, it needs “merely to identify a possible” valid application of the challenged statute. Baltimore & Ohio R.R. Co. v. Oberly, 837 F.2d 108, 116 (3d Cir.1988). Chapter 17-500, however, can be applied in a manner that does not trigger heightened scrutiny, i.e., whenever the sheltered market is not used.
However, I do not believe that issue must be reached; under no set of circumstances is the City compelled to use the sheltered market. On its face, the ordinance contemplates many applications without resort to the use of a sheltered market, does not require the use of a shel*1272tered market, and permits the use of the sheltered market only on a case by case basis. Obviously, the use of the sheltered market should be subject to heightened scrutiny, but because the ordinance permits the use of the sheltered market only on a case by case basis, such a challenge must come as an as applied, not a facial, challenge. The majority overlooks the dictates of United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), and Hoffman Estates v. Flipside, 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982), that a statute may only be invalidated on its face if it is incapable of any valid application. Thus, summary judgment in favor of the Contractors should not have been granted on this record.