(concurring in part and dissenting in part).
While agreeing with the results reached by my brethren on the equal protection, privileges and immunities and preemption questions, I respectfully disagree with their Commerce Clause analysis. I would neither uphold the 90-foot limitation nor vacate the district court’s decision on the 250-metric-ton rule.
The 90-Foot Rule
I am unable to conclude that the 90-foot rule burdens interstate commerce only “incidentally.” An array of evidence presented in the district court suggests the rule affirmatively discriminates in practical effect against out-of-state concerns.
As the majority points out, the vessel length limitation, as written, applies to Massachusetts and non-Massachusetts vessels, alike. However, there is persuasive evidence of its having a discriminatory effect on a particular class of out-of-state interests — squid freezer-trawlers such as plaintiffs’ Huntress I. It is undisputed that the rule effectively bars all freezer-trawlers from squid fishing in Massachusetts waters. David Pierce, a senior fisheries manager for the state, offered uncon-tradicted testimony that there are no squid freezer-trawlers less than ninety feet long in the region. Moreover, it appears that there are no Massachusetts freezer-trawlers of any size.19 To the extent the rule bars squid freezer-trawlers from Massachusetts waters, it manifestly discriminates against out-of-state interests.
Focusing on the beneficiaries of the 90-foot rule, rather than those burdened by it, likewise suggests discriminatory effect. Plaintiffs contend that the length limitation was enacted, in part, to protect Massachusetts’s shore-based squid processors from out-of-state competition. Since freezer-trawlers process their own catch, permitting such vessels to fish for squid will divert revenues from Massachusetts shore-based processors to out-of-state interests. Granted, not all shore-based squid processors are Massachusetts' operations. It appears that at least one Rhode Island processor currently benefits from the vessel length limitation. Uncontradicted testimony in the district court, however, suggests that three of the four largest shore-based processors are, indeed, Massachusetts outfits. Thus, while the 90-foot rule does not benefit Massachusetts interests exclusively, it appears to do so disproportionately.20
The district court’s conclusion of no discriminatory effect (and, to some extent, the majority’s as well) rests in part upon a determination that the rule would burden Massachusetts freezer-trawlers longer than ninety feet if there were any. When analyzing the practical effect of a regulation our focus ought to be on its actual as *797opposed to its theoretical impact. That there are no Massachusetts squid freezer-trawlers longer than ninety feet, nor, apparently, were there any at the time the regulation was promulgated, tends to highlight, rather than undercut, the discriminatory nature of the statute.
To be sure, the length limitation is neutral on its face; it does not single out non-Massachusetts freezer-trawlers for exclusion. Defendant produced a computer print-out suggesting that of the one hundred or so fishing boats longer than ninety feet licensed by the Massachusetts Division of Marine Fisheries, the majority are berthed in Massachusetts.21 On . close analysis, though, this evidence proves exceedingly slight. Testimony offered in conjunction with the print-out suggests that the Massachusetts boats supposedly affected by the rule generally fish off shore in federal rather than Massachusetts waters. Defendant’s star witness, David Pierce, explained that the printout (entitled “offshore lobster permits”) identifies vessels licensed by the state to catch lobsters “in offshore grounds” — in “federal,” as opposed to “inland,” waters.
I suspect the 90-foot limitation affects Massachusetts boats in name only.22 There was no testimony at trial concerning any Massachusetts vessel adversely affected by the rule.23 Nor has any Massachusetts concern joined plaintiffs in challenging it. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 473, 101 S.Ct. 715, 728, 66 L.Ed.2d 659 (1981).24 This silence is all the more deafening in light of the ruckus raised by Massachusetts fishermen in response to a proposed 6'5-foot ves-sél limitation.25 That this proposal was rejected in favor of the 90-foot one, with apparently no such hue and cry, casts further doubt as to the evenhandedness of the regulation.
In sum the record suggests: (1) the 90-foot rule adversely affects out-of-state interests; (2) it has no such impact on instate ones; and (3) it disproportionately benefits local interests. On such a record, to label the effect on interstate commerce “incidental” seems to me to create too wide an escape hatch from the. Commerce Clause. I would find affirmative discriminatory effect.26
*798This determination, of course, does not settle matters. “[0]nce a state law is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means.” Maine v. Taylor, 477 U.S. 181, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986) (quoting Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979)). The district court concluded that the 90-foot rule furthers a legitimate local purpose (squid conservation) and that “other conservation means would not impose a substantially lighter burden on interstate commerce.”
I take no issue with the first of the district court’s findings. Indeed, I agree wholeheartedly with it. The second, however, I find neither supported nor refuted by the record. (I therefore disagree with the majority’s affirmance of it supra, at 791.) There was a good deal of testimony in the district court concerning the ineffectiveness of certain alternatives to the 90-foot rule. Defendant explained the drawbacks of regulations limiting the horsepower, door-size, gear-type, net/mesh-size, and total catch of squid fishing vessels. There was also some discussion of the difficulty of enforcing night and regional closures of overfished grounds. Doubtless the district court was well within its discretion to credit this testimony. I, however, am aware of no evidence that Massachusetts’s conservationist goals could not be served as well by shortening the squid fishing season for all vessels.27 This option, deemed attractive and available by the district court in its ruling on the 250-metric-ton limitation, would appear no less so in the context of the 90-foot rule.
In light of my conclusion of affirmative discriminatory effect, I would vacate and remand this branch of the case for further factfinding under Taylor. Specifically, I would ask the court to address the feasibility of replacing the 90-foot rule with a shortened squid fishing season.28
The 250-Metric-Ton Ceiling
The district court appears to have decided that the quantity limitation in plaintiffs' squid processing permit affirmatively discriminates against out of state interests, that it does not further either of the local purposes advanced by the state, and that there is an equally effective, non-discriminatory method of conserving squid stocks. Because I find these conclusions supported by the record I would affirm rather than vacate the district court’s decision.
Discriminatory Effect
It is undisputed that the 250-metric-ton ceiling on squid processing burdens out-of-state interests exclusively. Additional fact-finding, as the majority proposes, might disclose some number of non-Massachusetts shore-based processors that benefit, along with Massachusetts ones, from the cap on at-sea processing. The record, however, presently indicates that three of the four largest shore-based processors in the region are Massachusetts ones. It thus permits the inference that the limitation discriminates against out-of-state interests in favor of local ones.
Legitimate Local Purpose and Alternative Non-Discriminatory Means
The evidence linking the ceiling on at-sea processing to a conservationist purpose was less than compelling. Daniel McKier-nan, one of the state’s marine biologists, *799agreed unequivocally that the “primary purpose” of the limitation is “to protect the shore-based processors.” As for the argument that the 250-metric-ton rule is necessary to ensure that enough shore-based operations remain economically viable to process Massachusetts fish species other than squid, the district court found “no evidence” (beyond “unsupported opinion”) to substantiate it. That the court then deemed the record “insufficient” to make a finding on this point does not trigger a need for further factfinding. Under Taylor, defendant has the burden of proving local legitimate purpose. 477 U.S. at 138, 106 S.Ct. at 2447. I am persuaded he failed to do so.
Finally, even were I to find the court erred in rejecting the proffered local purposes, I would uphold its ultimate ruling since defendant has not proven the unavailability of non-discriminatory methods of conserving squid or saving Massachusetts’s fish processing industry. My review of the record discloses no reason why a shortened squid fishing season combined with a requirement that at-sea processors accept only pre-sorted catch would not work as well as the quantity quota.
. All agree there are no Massachusetts freezer trawlers longer than ninety feet. David Pierce’s testimony that there are no freezer-trawlers less than ninety feet long in the area thus suggests there are no Massachusetts freezer-trawlers. David Dowell, owner of Davrod Corporation, offered explicit testimony to this effect.
. The record contains no evidence of the rule’s impact on non-Massachusetts boats less than 90 feet long. The fact that both Massachusetts and non-Massachusetts fishing boats shorter than 90 feet may benefit from the rule, however, does not alter its net discriminatory effect on out-of-state interests. The same is true of defendant’s contention that the exception for purse seiners benefits more out-of-state than in-state boats.
. Defendant also submitted a list of fishing vessels world-wide published in 1986, indicating a number of boats in excess of 90 feet berthed in Massachusetts. Its incompleteness, however, bars any useful conclusion being drawn from it.
. There is some evidence for this proposition. In a 1985 intra-office memorandum outlining the pros and cons of the proposed 90-foot rule, defendant noted, in the rule’s favor, "that few vessels greater than 90 feet ... habitually fish Massachusetts waters.” David Pierce twice corroborated this statement before the district court.
. A Massachusetts fisherman called by plaintiffs testified that he had declined to purchase a 95 foot vessel in light of the limitation. This lonely, anecdotal suggestion of actual adverse effect, however, does not move me. Moreover, the relevant inquiry in this case, it seems to me, concerns not such lost opportunities, but, rather, the number of extant boats, both in- and out-of-state, actually barred from fishing in Massachusetts waters under the rule.
. There the Court upheld against a Commerce Clause attack a state regulation barring the sale of milk in Minnesota in non-reusable, non-returnable (i.e., plastic) containers. The Court found no evidence that Minnesota pulp and •paper firms Would gain and non-Minnesota firms lose, on balance, under the statute. In so concluding, it relied, in part, upon the fact that two of the dairies challenging the statute were in-state firms. "The existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse,” it reasoned. 449 U.S. at 473 n. 17, 101 S.Ct. at 728 n. 17. No such safeguard is present in this case.
. The record contains letters from Massachusetts owners of 65 to 70 foot fishing vessels to defendant objecting to the proposed 65-foot rule. There are no such letters concerning Massachusetts boats 90 feet or longer.
. I also wish to express my disagreement with the majority's view of Atlantic Prince v. Jorling, 710 F.Supp. 893 (E.D.N.Y.1989). I find that case indistinguishable in any meaningful way from the one before us. In Atlantic Prince, the court found New York’s 90-foot vessel length limitation to discriminate in practical effect against ouf-of-state interests. There, as here, the regulation was neutral on its face, but adversely affected out-of-state boats (“almost exclusively”). That there was also evidence of discriminatory *798intent in Atlantic Prince does not blunt the force of these similarities.
. Dr. David Murawski, a marine biologist employed by the National Marine Fisheries Service, offered uncontradicted testimony that restrictions upon “days fished” are among "[t]he most effective" and easily enforced conservationist measures. In response to petitioner’s query whether “area and seasonal [closures] ... are easier to monitor" than the 90-foot rule, Daniel McKiernan, a marine biologist for the state, could only state that it was "difficult to say....”
. I recommend further proceedings, rather than outright reversal because, as far as I can tell, the court has not yet analyzed the evidence of alternative non-discriminatory means through the prism of defendants burden of proof. See Taylor, 477 U.S. at 138, 106 S.Ct. at 2447.