concurring in part and dissenting in part.
In my view we should uphold the “deeming” practice involved in this appeal, and the basis of my disagreement with the majority’s approach on this point is set forth below.
“Deeming” is the use of a formula to make a determination of the income available to support an institutionalized spouse, or, as defined by the district court, the “imputing of income on the basis of an arbitrary formula, without regard to the amount actually available to the institutionalized spouse . . .” Gray Panthers v. Secretary, Department of Health, Education and Welfare, 461 F.Supp. 319, 321 (D.D.C.1978). As with any formula the approach may result in hardship in cases where it imperfectly reflects the financial condition of the married couple involved. At the same time, “deeming” is a rational and necessary method of making a determination of available support and assessing financial responsibility in a program like Medicaid which involves hundreds of thousands of people, millions of dollars, Herweg v. Ray, 619 F.2d 1265, (8th Cir. 1980); Norman v. St. Clair, 610 F.2d 1228, 1242-3 (5th Cir. 1980), and allocates limited resources. Dandridge v. Williams, 397 U.S. 471, 478-79, 90 S.Ct. 1153, 1158, 25 L.Ed.2d 491 (1969). See also Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
My disagreement with the majority opinion centers upon its failure to accord unequivocal approval to “deeming” as prescribed in the regulations of the agency. While the majority opinion approves the “deeming” regulations conceptually, they are nevertheless remanded to the Secretary for reconsideration in light of a series of ambiguous factors delineated in the majority’s opinion. Majority Op. at 184-185. This court should resolve this case as it is presented; a remand is not necessary for the resolution of the issues involved in this appeal.
I
The majority should recognize that the scope of our review is severely circumscribed. The Secretary’s regulations should be set aside only if they are “arbitrary, capricious, an abuse ,of discretion, or otherwise not in accordance with law.” 5 U.S.C. §§ 706(2)(A), (C). See Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977). The majority opinion acknowledges that both “SSI States” and “209(b) States” 1 are governed by the same requirement, i. e., that only “available” income be considered in determining eligibility for Medicaid benefits. However, in the SSI States, income is deemed by statute to accrue to an institutionalized spouse for a period of six months. 42 U.S.C. § 1382c(b). The Secretary identifies this provision as authority for “deeming” in 209(b) States. The majority deals with this proposal by stating that
“[i]t is enough to say that there is no required federal statutory ‘deeming’ in the 209(b) jurisdictions which are the subject of this case, and that there is no justification for extending the anti-fraud six-month limitation on the general policy beyond its statutory confines.”
Majority Op. at 184 (footnote omitted).
One additional factor is useful in identifying the extreme nature of the Gray Pan*188ther’s attack. At oral argument the following colloquy occurred:
Judge MacKinnon: “They’re not going back; they’re staying with them [the standards in effect in 1972].
* * * * * *
Mr. DeFord [counsel for the Gray Panthers]: “Well, my only point is whatever the standards in 1972, if they were impermissible at that time a state should not be allowed to go back to them.”
Judge MacKinnon: “What are you talking about, go back to them?”
Mr. DeFord: “Well, a state should not be able to maintain them, then. If they were impermissible in 1972 under the statute as set out in 1965, then the states should not be able to use the 209(b) option to maintain any invalid attribution of income.”
Judge MacKinnon: “Well, then your point is they’re all invalid. The deeming is all invalid.”
Mr. DeFord: “That’s correct your Hon- or . . .”.
Later, the court and counsel turned to the question of what effect invalidating the deeming regulations would have administratively:
Judge MacKinnon: “Go through determination, you mean go to hearing?
Mr. DeFord: “The normal welfare procedure, your Honor, by which a state determines what the income and expenses of the individual are. It is a fairly common procedure.”
Judge Wright: “You mean, there would have to be a fact hearing in every case?”
Mr. DeFord: “I’m not talking about a hearing, your Honor. I’m simply talking about the state welfare officials sitting down with the non-institutionalized spouse figuring out what the expenses and income of that individual are.”
These colloquies illustrate several important points. First, Gray Panthers is attacking the concept of “deeming”, not just its application to Medicaid programs in the 209(b) States. Second, Gray Panthers would substitute an individual hearing in every case for “deeming.” The extreme nature of these arguments also provides a basis for their rebuttal. The purpose of “deeming” is not only to mitigate fraud, a ubiquitous and monstrously costly problem in the administration of any assistance program, but also to facilitate the administration of the program itself, thereby reducing the percentage of resources devoted to the administration of programs, and increasing the percentage which can be actually distributed to program beneficiaries. See Brown v. Stanton, 617 F.2d 1224 at 1230 (January 30, 1980) (Pell, J., concurring in part, and dissenting in part). While counsel for Gray Panthers did not advocate a full dress adversary hearing but an individualized, in-person determination of expenses and income for each couple affected by this program, the fact remains that such a proposal is a limited hearing, albeit termed an informal one and would involve practically all the detriments of a hearing. In administering Social Security benefits, Congress has often elected to use “simple criteria”. The Supreme Court has observed that “[gjeneral rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases. Weinberger v. Salfi, 422 U.S. 749, 776 [95 S.Ct. 2457, 2472, 45 L.Ed.2d 522, 1975].” Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977). Nothing in the statute suggests that Congress intended to deny the states recourse to similar efficiencies. Nothing in the statute suggests that Congress intended to burden participating states with the layers of administrative structure.
The approach taken by the majority falls well short of that advocated by the Gray Panthers. But the soft direction provided by the court will not provide meaningful guidance for the Secretary to reevaluate her regulations. Indeed, the groundwork has already been laid for a second appeal to measure compliance by the Secretary against the somewhat indefinite benchmarks provided by the majority. We could *189avoid this recurring review without distorting the statutory scheme by affirming the Secretary’s' regulations.
II
The only villain here is the level of need which has not been adjusted to reflect skyrocketing costs of living. However well-intentioned, the court cannot through a remand to the Secretary affect the inflationary pressures which are particularly burdensome to people on fixed incomes. In a concise concurrence in Kollett v. Harris, 619 F.2d 134 (1st Cir. 1980), upholding “deeming” from a parent to a disabled child in determining the amount of cash assistance payments under a Supplemental Security Income program, 42 U.S.C. 1381 et seq., Judge Aldrich aptly addressed the issue of “deeming”:
As one who participated in Boucher v. Minter, D.Mass., 1972, 349 F.Supp. 1240, from which plaintiffs would derive much support, I feel I should recite that I am entirely comfortable with its present rejection. The enormous enterprise which social insurance has become would fall of its own weight if practical, rule of thumb guidelines could not be established to avoid piece by piece scrutiny of every case. The Supreme Court having forcefully recognized that this is permissible even though occasional hardship is inevitable, Weinberger v. Salfi, 1975, 422 U.S. 749 [95 S.Ct. 2457, 45 L.Ed.2d 522] the principle applies that there must be some reason in fact, or logic, before the agency’s judgmental expertise is overruled. On the point here in issue the agency’s experience is obviously considerable. I cannot think that it abused its discretion in choosing this rule rather than some other.
Id. at 146-147.
Ill
Because in my opinion there is nothing to suggest that the Secretary’s action in promulgating the regulations allowing the use of “deeming” in 209(b) States is arbitrary or capricious, the limit of our scope of review, I respectfully dissent from that part of the court’s opinion which holds to the contrary.
. States participating in the Medicaid program fall into two categories: those which determine eligibility under the Supplemental Security Income program (“SSI”) Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (1976) and those states which have elected a more restrictive eligibility criteria, an option authorized by Section 209(b) of the 1972 Amendments to the Social Security Act, Pub.L.No.92-603, 86 Stat. 1484 codified at 42 U.S.C. § 1396a(f). in shorthand fashion, the states exercising this option are referred to as “209(b) States” and the others as “SSI States.”