(dissenting) :
The Village of Belle Terre, a community of 700 people, has enacted a “one-family” zoning ordinance similar to those in effect in thousands of communities throughout the Nation. Six unmarried students — three males and three females — at the State University of New York at Stony Brook, claiming that they constitute “one-family”, have leased a house in Belle Terre for the purpose of living there together. The Village says its one-family ordinance prohibits such a group living there. The students, in their civil rights action brought in the district court below, challenge the constitutionality of the ordinance. After a hearing in the district court, Judge Dooling, in a most thoughtful and perceptive opinion (E.D.N.Y. 1972), upheld the validity of the ordinance and denied a preliminary injunction against its enforcement. The majority in our Court today reverses the district court and strikes down the Village’s zoning ordinance on the ground that it violates the equal protection clause, of the United States Constitution. I disagree.
First, while I recognize that the Supreme Court appears to be casting aside the rigid old equal protection-new equal protection dichotomy, I believe that the majority in our Court incorrectly perceives the essence of the new standard *819being developed. Since our decision will have radiations far beyond the immediate controversy, I feel compelled to state my understanding of the Supreme Court’s latest equal protection decisions and the new standard of judicial review that they require.
Secondly, I disagree with the majority on the merits of the instant controversy. In my view since the Belle Terre zoning ordinance bears a significant relationship to the traditionally recognized zoning objectives asserted by appellees, it satisfies the new equal protection standard.
I.
In the century that has passed since the equal protection clause became part of our Constitution, two well-defined equal protection standards have been established: the “minimal scrutiny” standard and the “strict scrutiny” standard.
A good definition of the “minimal scrutiny” standard or test was articulated by Chief Justice Warren in McGowan v. Maryland, 366 U.S. 420, 425-26 (1961):
“[The equal protection clause] permits the States a wide scope of discretion in enacting laws which affect' some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective .... A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
This deferential test, also known as the “old equal protection”, was utilized most often where economic or social legislation was being challenged. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911).
The “strict scrutiny” test involved a more intense and interest-balancing review of legislative means and ends. It required that the governmental purpose for legislation be “compelling” and that the intrusion upon individual rights caused by a legislative classification be “necessary” to the effectuation of this “compelling” purpose. See Shapiro v. Thompson, 394 U.S. 618 (1969). This interventionist test, also known as the “new equal protection”, was applied where a classification provided for differential treatment on the basis of race, Loving v. Virginia, 388 U.S. 1 (1967), or where a neutral classification in fact adversely affected the fundamental rights of a disadvantaged group. See Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (voting rights); Griffin v. Illinois, 351 U.S. 12 (1956) (right to an effective criminal appeal); Shapiro v. Thompson, supra (right of interstate travel).
The majority here asserts that certain recent decisions of the Supreme Court1 indicate that a third standard of review —an equal protection standard of intermediate scrutiny — is in the process of evolution. This standard is described by the majority as “a more flexible and equitable approach, which permits consideration to be given to evidence of the nature of the unequal classification under attack, the nature of the rights adversely affected, and the governmental interest urged in support of it.” The test proposed by the majority is that “[i]f the classification, upon review of *820facts bearing upon the foregoing relevant factors, is shown to have a substantial relationship to a lawful objective and is not void for other reasons, such as overbreadth, it will be upheld.” The majority further states that under the new test courts are “asked to do what courts are historically suited to do — apply the law to factual contexts rather than accept one hypothetical legislative justification to the exclusion of others that represent the true rationale of the classification.” I believe that the intensity and focus of judicial review required by the decisions cited by the majority differs substantially from the intensity and focus of the test proposed by the majority and applied by the majority to the present controversy.
James v. Strange, 407 U.S. 128 (1972), a unanimous decision, probably is the best example of the Court’s new policy of judicial intervention without “strict scrutiny”. That decision held unconstitutional a Kansas statute for recoupment of legal defense fees expended for indigent defendants. What the Court found offensive about the statute was that a debtor in a recoupment action could not avail himself of a number of protective exemptions — including some restrictions on wage garnishment —afforded to other civil judgment debtors. It held that the distinction between these debtors and other civil judgment debtors with regard to the exemptions violated the equal protection clause because it was not based on “some rationality”.
In Jackson v. Indiana, 406 U.S. 715 (1972), the Court held that the state’s provisions for pretrial commitment of mentally incompetent criminal defendants violated the equal protection clause. A comparison of the commitment laws applicable to a criminal defendant with those governing commitment of persons not charged with offenses disclosed that criminal defendants were subject to more lenient commitment standards and to a more stringent release standard. Accepting as legitimate the proffered state objective in committing criminal defendants, the Court decided that the difference between commitment procedures was not supported by any rational basis related to this objective.
Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972), invalidated a statute which discriminated between legitimate children and dependent, unacknowledged legitimates in awarding workmen’s compensation benefits for the death of a common father. The Court held that the discrimination against illegitimates bore “no significant relationship to those recognized purposes of recovery which workmen’s compensation statutes commendably serve.” 406 U.S. at 175.
The two decisions chiefly relied upon by the majority here, Eisenstadt v. Baird, 405 U.S. 438 (1972), and Reed v. Reed, 404 U.S. 71 (1971), strike me as not truly illustrative of the intensity and focus of review associated with the evolving equal protection standard. In both Baird and Reed, the Court did specify that the test being applied was a means-scrutiny test: whether the means actually were rationally related to a valid public purpose. But the actual scrutiny engaged in by the Court in each case seems more intense than required under the means-scrutiny test as defined.
In Reed, the Court held unconstitutional an Idaho probate provision which gave men a mandatory preference over women when persons of the same priori-' ty class applied for appointment to administer a decedent’s estate. Chief Justice Burger found “some legitimacy” in the state’s proffered objective to simplify probate proceedings. Yet in testing the means solely as related to that aim the Court held that the sex classification was “arbitrary”. It seems clear that the means did contribute substantially to the state’s purpose, and that the rationality test was met. The more intense review engaged in by the Court, more characteristic of the strict scrutiny test than of the new rationality test, apparently reflected an unexpressed special suspicion of sex classifications.
*821In Baird, the Court struck down Massachusetts; ban on the distribution of contraceptives to unmarried persons. The Court reached this result, however, by scrutinizing the legislation far more vigorously than it would have under the means-scrutiny standard. It rejected, as appropriate measures of the rationality of the means, two of the purposes in fact asserted by the state. The only purpose it found credible was a ban on contraceptives as such. It then stated that a distinction between married and unmarried persons was not rationally related to this objective. The Court appears to have reached a judgment as to the legitimacy of the ends by measuring their value against the individual interests affected. Since the interests involved were closely related to those protected in Griswold v. Connecticut, 381 U.S. 479 (1965), the Court was justified in subjecting the statute to intense scrutiny.
The James, Jackson and Weber decisions clearly indicate that the Court is not content with the two-tier equal protection doctrine and they may well presage a new equal protection standard.2 Such standard would require modest intervention by a court to assure rationality of legislative means but without restricting legislative prerogatives regarding ends. Unlike the “strict scrutiny” test, the importance of the governmental interests apparently would not be weighed against the importance of the private interests impaired by the legislation. Courts would not defer to a broad range of imaginable legislative purposes, but if the ends proffered by the state were legitimate, and no right or value which has clear support in constitutional text and history were adversely affected, conflicting values would not be required to be weighed. The inquiry thus would be scrupulously focused on means rather than ends.
The majority here states that “the nature of the right affected” should in part determine the rationality of the means. This indicates that the more “valuable” the right affected, the more intense should be the scrutiny and the more rational must be the means to achieve the objective. I do not find any support for this principle in the Supreme Court cases. In each of the decisions, except Reed and Baird, the intensity of review was of the same degree although the interests affected were different. A “sliding scale” approach may be appropriate in some contexts, but it seems to me to be inappropriate here. A court should not be required to attempt the impossible task of first assessing the precise value of a right or interest3 and then increasing or decreasing the intensity of its scrutiny accordingly. This approach would confer upon a judge wide discretion to overturn state and local legislation based largely on his own estimate of the value of competing interests — a highly abstract and individualistic determination.
The recent Supreme Court decisions, in my view, require a judge to make only the narrow value judgments needed in evaluating means. A legislative classification must contribute substantially to the achievement of the state’s purpose. It must “rest on a ground of difference having a fair and substantial relation to the object of the legislation.” Reed v. Reed, supra, 404 U.S. at 76. This would indicate that grossly overinelusive or underinclusive classifications should not be readily tolerated. Nor *822should a reviewing court defer to imaginable facts that might justify the classification. But account should be taken of legislative realities and the need for legislative flexibility. In short, a legislature should be able to adopt any means that are reasonably effective in achieving a valid legislative end or ends.
II.
The Belle Terre ordinance clearly was not devised, nor has it been enforced, so as to discriminate against any group because of its racial, religious, or political characteristics. Reitman v. Mulkey, 387 U.S. 369 (1967). It does not operate to exclude the indigent from the Village. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2 Cir. 1968). Appellants have not shown infringement of a constitutional right to freedom of association, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), or a right of privacy. Griswold v. Connecticut, 381 U.S. 479 (1965). While appellants’ rights to live together under the same roof free from the intrusion of government-are said to be important, in my view such rights do not rise to the status of “fundamental interests”. In short, the “strict scrutiny” standards should not be applied to test the validity of the ordinance.
The majority believes that the new rationality test should be applied to zoning ordinances such as the Belle Terre ordinance. To me, it is not clear, however, that the Supreme Court is prepared to apply this invigorated rational basis for review to traditional “hands-off” areas of legislative activity. And I have my doubts that we should do so under our own steam. During this last term, the Supreme Court continued its reluctance to explore the welfare area when it found minimal rationality after examining legislation which discriminated in the allocation of welfare funds. Jefferson v. Hackmen, 406 U.S. 535 (1972); Richardson v. Belcher, 404 U.S. 78 (1971). See also Dandridge v. Williams, 397 U.S. 471 (1970). In the past, zoning has been another area which the Court traditionally has declined to explore. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). I therefore am more disinclined than is the majority to apply an intensified means-scrutiny test to this uncharted area of the law.
For discussion purposes, however, I shall assume arguendo that the new standard of review should be applied to the Belle Terre ordinance.
The Village of Belle Terre asserts that the primary purpose of its zoning ordinance is to maintain the one-family residential character of the Village for the welfare of its residents. The majority holds that this is not a valid zoning objective and, further, that the ordinance is not a rational means of achieving that objective. While I find it unnecessary to decide this difficult issue, because the ordinance is rationally related to other well-accepted zoning objectives, the majority’s treatment of the subject deserves some discussion.
I believe that under the circumstances here the maintenance of the traditional family character of the Village arguably is a legitimate objective. It may be doubtful whether a local government in preplanning the development of a community could set aside an area solely for single-family dwellings with “family” defined as persons related by consanguinity or legal affinity, or as not more than two unrelated persons. But that is not the case here. The Belle Terre ordinance apparently was enacted for the purpose of zoning for a particular neighborhood character in a community that had always been of that character. The development decision was made over a period of time by the families moving into the Village. The zoning ordinance therefore merely reinforced the sum of many individual choices. See Mandelker, Managing Our Urban Environment 707 (2d ed. 1971).
It is significant also that appellants have available to them similar housing in nearby areas. In assessing the legitimacy of a use limitation upon a particular area, a court should not ignore a rel*823evant, larger pattern of development. As Judge Dooling stated below:
“The safeguard against mistaking the effect of a particular ordinance is to see it in its total setting, recognizing that its effect, and, therefore, its validity, may be influenced by the way in which neighboring communities are zoned.”
If the zoning ordinance of a small community is viewed from this broader perspective, its maintenance of a particular neighborhood character may not be seen as an expression of a parochial and exelusionist attitude, but instead as the proper use of the general welfare power to establish one segment of a beneficial larger scheme. A look at the entire Brookhaven area, which provides for varying uses and activities, indicates that Belle Terre’s ordinance was a proper exercise of the general welfare power.
Certainly the ordinance is rationally related to this objective. The Village reasonably determined that two unrelated persons living in the same household would not substantially change the character of the neighborhood. Whether the limit should have been three or four unrelated persons, is a matter on which the Village is entitled to some flexibility. The limitation clearly contributes to the objective of preserving a family neighborhood.
In addition to the objective of preserving the traditional family character of the neighborhood, the Village has specified several other purposes of the ordinance: (1) to control population density; (2) to avoid escalation of rental rates; and (3) to prevent parking, traffic and noise problems. These purposes • admittedly are not the primary purposes of the ordinance, but I believe that our inquiry should not be limited to its primary purposes. Subsidiary purposes also may support the rationality of a means.
Judge Dooling observed that the ordinance “might well be all but impossible to justify if it had to be strictly justified by its service of such familiar zoning objectives” as those noted above. He did not decide whether the ordinance bore a significant relationship to these objectives. In my view, the ordinance is rationally related to each of these ends. I am reinforced in this view by the decision in Palo Alto Tenants Union v. Morgan, 321 F.Supp. 908 (N.D.Cal.1970), which upheld a zoning ordinance almost identical to the Belle Terre ordinance.4
The ordinance here involved obviously provides some controls over density by limiting the number of unrelated persons who may live in a single dwelling. It is argued, however, that the restriction is arbitrary because no corresponding limit is placed on the number of related persons living in a single dwelling. But traditional families do tend to be self-limiting, as the average size of a Belle Terre family (3 persons) demonstrates. Moreover, the Village has an interest in preserving the integrity of the biological or legal family and any *824discrimination against a large family-might run afoul of the Constitution. Cf. Griswold v. Connecticut, swpra. In short, while the ordinance is not perfectly efficient, it is highly effective,' given the realities of the situation. While there may be other, and perhaps more effective, means of curbing population density, the Village should be permitted to select any means that substantially further the legislative purpose. The ordinance in question clearly does so. The majority’s observation that other methods of density control are available which are less intrusive upon appellants’ rights strikes me as reminiscent of the “strict scrutiny” test which in my view is inapplicable here.
The ordinance also is rationally related to the avoidance of rent inflation. Large groups of unrelated persons typically have several independent sources of income while the traditional family usually has only one basic source of income. Large groups therefore are willing and able to pay a higher rent than could a family. Thus, the whole rent structure of Belle Terre may well be affected by opening the area to large, unrelated living groups. Single families who rent may be forced to move out of the area when their landlord increases the rent to a level he knows large unrelated groups can and will pay. Perhaps rent controls would have been a better solution, as the majority suggests; but the rationality test does not demand that the means employed be the best means available. The restriction on the number of unrelated persons who may live in a single dwelling bears a significant relationship to rent control.
Finally, the ordinance is related to the prevention of traffic, parking, and noise problems. These problems occur when one-family homes become occupied by large groups of unrelated persons. There are likely to be more people and more motor vehicles.
The majority holds that the ordinance is not rationally related to these objectives for three basic reasons: (1) there was no evidence presented that groups of unrelated persons are always different from traditional families with respect to these problems; (2) there were more effective methods available to the Village to solve these problems; and (3) there were methods at least equally effective available to the Village which would have been less intrusive upon appellants’ rights.
The Village need not establish that there always is a difference between unrelated groups and families with respect to these problems. It is enough that such differences usually exist. I believe that the Village has established that fact. Moreover, since the majority applies a new standard which requires proof by the Village of rationality, and the Village apparently did not anticipate such a standard, at the very least it seems to me that a remand should be ordered to allow the Village an opportunity to prove these matters.
The fact that the means selected by the Village may not have been the most-efficient or the least intrusive of those available is legally immaterial under the means-scrutiny test. If the means selected contributes substantially to the end, the equal protection clause has not been violated. It is not our function to engage in such intense review of legislation unless the classification is suspect or a fundamental interest is adversely affected.
I would affirm the judgment of the district court.
ON DENIAL OF REHEARING EN BANC
A poll of the judges in regular active service having been taken at the request of such a judge as to whether this action should be reheard en banc and there being no majority in favor thereof, it is
Ordered that rehearing en banc is denied. Chief Judge FRIENDLY and Circuit Judges HAYS, MULLIGAN and TIMBERS dissent.
. The majority relies primarily upon five decisions to support its formulation of a new rationality standard: James v. Strange, 407 U.S. 128 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Reed v. Reed, 404 U.S. 71 (1971). Additional decisions might be cited to indicate that the Court recently may have been developing a third standard of review: Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972); Humphrey v. Cady, 405 U.S. 504 (1972). See generally Gunther, The Supreme Court 1971 Term, Foreword, In Search of Evolving Doctrine on a Changing Court: A Model for A New Equal Protection, 86 Harv.L.Rev. 1 (1972).
. Four decisions rendered by the Court last term indicate that it is not yet ready to abandon the “old equal protection” standard. Jefferson v. Hackney, 406 U.S. 435 (1972); Lindsey v. Normet, 405 U.S. 56 (1972); Schill v. Knebel, 404 U.S. 357 (1971); Richardson v. Belcher, 404 U.S. 78 (1971).
. The difficulty in judging the relative value of an interest is illustrated by the Court’s hesitancy in expanding the list of “fundamental interests”. See, e. g., Lindsey v. Normet, 405 U.S. 56 (1972) (refusal to find housing a fundamental interest). Indeed, the Court’s use of the new means-scrutiny test may be viewed as a technique to avoid the troublesome value judgments required to identify new fundamental interests.
. In Palo Alto, the court upheld a zoning law which maintained a “single family residential” neighborhood. “Single family” was defined as persons related by blood or law, or a group not exceeding four persons living as a single housekeeping-unit. The law was challenged by a group of more than four unrelated persons on the ground that it violated their rights of association and privacy. Applying the restrained “minimal scrutiny” test, the court held that the classification was rationally related to control of population density, avoidance of rent inflation, and prevention of parking, traffic, and noise problems.
The cases relied upon by appellant, City of Des Plaines v. Trottner, 34 Ill. 2d 432, 216 N.E.2d 116 (1966), and Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 281 A.2d 513 (N.J.Super.1971), are not persuasive. In City of Des Plaines, the court never reached the equal protection issue because it decided that the zoning law was ultra vires. In Kirsch Holding Co., the ordinance was declared unconstitutional after the court found that its objective was to prevent obnoxious behavior by persons renting during a particular season. The court held that the ordinance limiting the area to “families” was not rationally related to this objective.