(dissenting). The majority declares unconstitutional the public disclosure provisions of sec. 107.15. It holds that the disclosure provisions constitute a taking of property without just compensation.1 It then holds that they deprive Noranda of property without due process of law because there is no rational relationship between the disclosure provisions and a legitimate government interest.2 I dissent from both of these conclusions.
I acknowledge that the information subject to disclosure in this case3 can be classified as property, and I agree with the majority that the question of what constitutes taking is a problem of considerable difficulty which “the decisions of the Supreme Court have not made . . . less difficult.” Supra, p. 624.4 Although the test for *631assessing when a taking has occurred can not be stated as a set formula, the United States Supreme Court has concluded that a court deciding whether a particular state action constitutes a taking must, as the majority recognizes, engage in “essentially ad hoc, factual inquiries.” Supra, p. 628. These factual inquiries are made within the context of determining “whether the interference with [the] property is of such a magnitude that ‘there must he an exercise of eminent domain and compensation to sustain [it] [sic].’ Pennsylvania Coal Co. v. Mahon, 260 U.S. [393], at 413 [1922].” Penn. Central Transp. Co. v. New York City, 438 U.S. 104, 136 (1978). In making its inquiries, the court must focus both on the “character of the action and on the nature and extent of the interference with rights in the parcel as a whole. . . .” Penn. Central Transp. Co. v. Neto York City, 438 U.S. 104, 130-31 (1978). The test then is essentially a balancing test dependent on the facts of the particular case, necessarily requiring a “careful assessment of the impact of the regulation” on the property in question, id. at 136, and designed to produce a fair and equitable distribution of the burdens and benefits of enforcing a government policy. Id. at 123, 133. P. 624.
This court has discussed this balancing test in similar terms. In Just v. Marinette County, 56 Wis. 2d 7, 15, 201 N.W.2d 761 (1972), we said that the distinction between a permissible regulation and an unconstitutional taking is not a “bright line,” but turns on the degree of damage that the property owner suffers because of the regulation; “[t]he loss caused the individual must be weighed to determine if it is more than he [or she] should bear.”
The circuit court’s 48-page decision and the extensive record consisting of several boxes of transcripts and exhibits from the seven-day trial of this case reveal that the parties and the circuit court recognized that resolu*632tion of the constitutional issue depends upon an empirical demonstration that the statute’s impact on the property is so great that it constitutes a taking. See Hurst, Dealing with Statutes 81-86, 95-98 (1982).
The circuit court found that the intrinsic value of the core sample extends indefinitely; that the period of exploration may legitimately be longer than thirteen and one-half years; that the value of the information to the company acquiring it could dissipate upon the disclosure of the information to competitors; that although the disclosure of the information reduces its value to the exploration company, it does not entirely eliminate its value to them; and that even after disclosure, the information will still be more valuable to the company that originally produced it than to the competitor.
The majority, without close analysis of the facts, concludes that the facts show that the statutory confidentiality periods “are not adequate to ensure that the explorer retains the benefits which result from the confidentiality of the information,” supra, p. 628, implying that disclosure totally destroys the value of the property because it is like a “permanent physical occupation of property, which the U.S. Supreme Court has held is always compensable.” Supra, p. 629. I am not convinced. Disclosure after the period of confidentiality may diminish the value of property but diminution in value does not necessarily constitute a taking.
The majority also holds that the disclosure provisions are unconstitutional because they are not a valid police power regulation. I agree with the majority that “to be a valid exercise of the state’s police power, a statute must have a reasonable and rational relationship to the furtherance of a proper legislative purpose.” Even Noranda concedes that the statute has a proper legislative purpose and that “ [i] t cannot be seriously contested that the statute does serve some state interests. . . .” Noranda’s only contention is that the statute “does not substantially *633advance that purpose and in fact impedes such purposes.” Petitioner’s brief, p. 15.
The majority, following Noranda’s arguments, implicitly evaluates the statute to determine how well the legislature has met its goals. This court, however, has rejected this approach, stating that the court does “not sit as judges of the merits of the controversy. . . . Courts are not concerned with the overall merits or wisdom of statutes.” Chicago & N.W.R. Co. v. La Follette, 27 Wis. 2d 505, 521, 135 N.W.2d 269 (1965).
The principle controlling judicial review under the rational basis test is that the court determine whether there may be facts which the legislature could have deemed to exist and which would form a reasonable basis upon which the statute may constitutionally rest. Sometimes the facts are such that the court may take j udicial notice of them. Where economic regulation is involved, it may be necessary for the facts to be presented to the trial court in an evidentiary hearing. Chicago & N.W.R. Co. v. La Follette, 27 Wis. 2d 505, 523-24, 135 N.W.2d 269 (1965) ; Hurst, Dealing with Statutes 95-98 (1982).
I am not persuaded, beyond a reasonable doubt,5 that the disclosure provisions of this statute violate due process. I would affirm the decision of the court of appeals.
I am authorized to state that Justice Nathan S. Heffernan joins in this dissent.
The fifth amendment of the United States Constitution (made applicable to the state by the fourteenth amendment) and art. I, sec. 13, of the Wisconsin constitution guarantee that private property shall not “be taken for public use without just compensation.”
Fourteenth amendment of the United States Constitution and art. I, sec. 1, of the Wisconsin constitution.
My understanding is that the core sample and the noninterpre-tive lithologic log excluding mention of metalliferous minerals together constitute the property “taken.”
For an interesting discussion of constitutional constraints upon the federal government’s disclosure of business information under the freedom of information act, see Connelly, Secrets and *631Smohescreens: A Legal and Economic Analysis of Government Disclosures of Business Data, 1981 Wis. L. Rev. 207, 240-59.
The general rule applicable to judicial review of a police power statute is that there is a presumption of constitutionality and the burden is on the challenger to prove unconstitutionality beyond a reasonable doubt. It is not clear that the same presumption and burden should apply to a challenge under the taking provisions of the constitutions. See Hurst, Dealing with Statutes 87-106 (1982).