I respectfully dissent. Applying improper analysis, the majority incorrectly strikes down as violative of the federal commerce clause (U.S. Const., art. I, § 8, cl. 3) former Revenue and Taxation Code section 225 which provided a tax exemption for business inventory of foreign origin or destination transshipped through California.1 Although presently all business inventory is exempt from taxation (§ 219) and former section 225 has been repealed (Stats. 1984, ch. 678, § 10, p. 188), I write separately because today’s decision improperly precludes the Legislature from future use of this valid device to attract foreign commerce to California ports.
The commerce clause, investing in Congress the power “[t]o regulate commerce with foreign nations, and among the several States . . .” (U.S. Const., art. I, § 8, cl. 3) also acts, by its own force, as a limitation on state power. (Boston Stock Exchange v. State Tax Comm’n (1977) 429 U.S. 318, 328-329 [50 L.Ed.2d 514, 523-524, 97 S.Ct. 599].) This limitation applies to laws implicating both the foreign and interstate components of the commerce clause, but has never been read as an absolute ban on the states’ authority to enact legislation touching upon either the foreign or interstate commerce powers. (Ibid.; Cooley v. Board of Wardens (1852) 53 U.S. (12 How.) 299, 319 [13 L.Ed. 996, 1004].) As I will demonstrate, the statute at issue here, extending a business inventory exemption to importers and exporters transshipping through California while denying the exemption to interstate shippers, does not violate either of these implicit limitations on state power.
*17I. Foreign Commerce Clause
Conceding that nondiscriminatory ad valorem taxes on foreign business inventories would have no impact on the federal government’s foreign commerce power (ante, p. 13), the majority concludes that the section 225 exemption from this otherwise valid tax may actually offend that power, as it “may operate to nullify the curative effect of federally imposed tariffs.” (Ante, p. 14.) I submit that such speculation is not sufficient to strike down an otherwise valid exercise of state power.
In Japan Line, Ltd. v. County of Los Angeles (1979) 441 U.S. 434, 449-450, footnote 14 [60 L.Ed.2d 336, 348-349, 99 S.Ct. 1813], the high court reiterated the three main policies used in federal commerce clause analysis: “‘[T]he Federal Government must speak with one voice when regulating commercial relations with foreign governments . . .; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States . . . were prohibited from levying taxes on [goods in transit].’ ” The exemption provided by former section 225 does not conflict with any of these concerns.
In Container Corp. v. Franchise Tax Bd. (1983) 463 U.S. 159, 193-194 [77 L.Ed.2d 545, 571, 103 S.Ct. 2933], the Supreme Court amplified upon the first policy concern identified in Japan Line, inquiring whether the state legislation “impair[s] federal uniformity in an area where federal uniformity is essential” (Japan Line, supra, 441 U.S. at p. 448 [60 L.Ed.2d at p. 347]), preventing “the Federal Government from ‘speaking with one voice’ in international trade . . .” (id., at p. 453 [60 L.Ed.2d at p. 351]). The Container Corp. court stated that merely because a state tax has “foreign resonances,” it does not necessarily implicate foreign affairs; rather, violation of the “one voice” standard occurs if the state tax “either implicates foreign policy issues which must be left to the Federal Government or violates a clear federal directive.” (Container Corp., supra, 463 U.S. at p. 194 [77 L.Ed.2d at pp. 571-572], italics in original.)
Container Corp. concerned, in part, whether application of California’s “unitary business” principle to tax foreign subsidiaries violated the federal commerce clause. In concluding that the state’s tax did not violate the “one voice” standard, the court found that the state tax did not implicate foreign policy by creating a threat of economic retaliation by other nations. Although recognizing foreign policy issues other than economic retaliation could be implicated, the court noted that the absence of an amicus curiae brief by *18the Solicitor General raising such concerns, primarily the province of the executive branch and Congress, was some indication that no such other considerations were involved. (Id., at pp. 195-196 [77 L.Ed.2d at p. 571].)
Analyzing whether the tax violated a “clear federal directive,” termed “essentially a species of pre-emption analysis,” the court observed that the existing tax treaties did not address state taxing powers, the regulation of which Congress had debated but chosen not to regulate. (Id., at pp. 196197 [77 L.Ed.2d at pp. 573-574].) The court concluded the California tax was thus not “pre-empted by federal law or fatally inconsistent with federal policy.” (Id., at p. 197 [77 L.Ed.2d at p. 573], italics added.) The same conclusion should be reached regarding the exemption in the present case.
Primarily, the majority has failed to demonstrate how the tax exemption at issue affects any foreign policy. Clearly, the effect of this legislation would not offend our foreign trading partners. Rather, any equivalent “retaliation” by other nations, in the form of tax exemption for United States exports would be welcome. Additionally, we find the views of the Solicitor General as stated in Sears Roebuck and Co. v. County of Los Angeles et al. (1981) 449 U.S. 1119 [67 L.Ed.2d 106,101 S.Ct. 933], persuasive evidence that former section 225 has not implicated any other foreign policy matters. In Sears Roebuck and Co. v. County of Los Angeles et al., supra, 449 U.S. 1119, the Supreme Court reviewed a California Court of Appeal opinion finding former section 225 unconstitutional, and requested the Solicitor General to submit a brief on the matter. Responding to this request, the Solicitor General stated his view that the exemption did not violate the commerce clause. Though ultimately the Court of Appeal opinion was summarily affirmed by an equally divided court, the Solicitor General’s opinion remains significant to the extent that it serves as an indication that the Executive Branch itself did not perceive former section 225 as interfering with foreign policy. (See Container Corp., supra, 463 U.S. at pp. 195-196 [77 L.Ed.2d at pp. 572-573].)
Neither does the challenged exemption violate a clear federal directive. Unlike Japan Line, where the court cited the Customs Convention on Containers (441 U.S. at p. 452 [60 L.Ed.2d at p. 350]), a specific directive in conflict with the state’s taxing policy, the majority herein presents only the possibility that some hypothetical tariff may be impeded by the inventory exemption. Instead, like the situation in Container Corp., there is no indication either that by imposing a tariff, Congress has intended to occupy the field, precluding taxation or exemption, or that allowing the exemption would defeat the purposes of congressional action. Neither the Supreme Court nor Congress has ever required states to impose ad valorem taxes. Absent some concrete showing that the exemption is preempted by federal *19law, or “fatally inconsistent with federal policy,” I would hold that this seemingly harmless exemption does not impair federal uniformity, preventing the federal government from “speaking with one voice” in international trade.
The exemption also cannot be found to conflict with the other major federal commerce clause concerns. Obviously, providing an exemption does not divert import revenues to the states. Moreover, unlike a tax imposed by a seaboard state which could adversely affect inland states, leading to disharmony, this tax exemption would not lead to interstate rivalry.2 The tax exemption provided by former section 225 did not violate any of the policies forming the basis of the foreign commerce clause. Rather than impeding the flow of foreign commerce, this exemption, if anything, facilitated this channel of trade.
II. Interstate Commerce Clause
Former section 225’s exemption also may not be invalidated as interfering with interstate commerce. The majority applies the test of Complete Auto Transit, Inc. v. Brady (1977) 430 U.S. 274, 279 [51 L.Ed.2d 326, 331, 97 S.Ct. 1076], which is used to determine whether a state tax interferes with interstate commerce, to analyze whether this exemption unduly burdens interstate commerce. I submit that the application of Complete Auto in this wholly different context is erroneous.
The majority cites no case where Complete Auto is used to analyze whether a state tax exemption or credit violates the commerce clause. Moreover, the inappropriateness of applying Complete Auto in this context is further demonstrated when one attempts to apply the three parts of its four-part analysis which the majority does not discuss.3 For example, it seems absurd to say that a state’s choice not to impose a tax somehow violates the commerce clause unless the activity not taxed has a substantial nexus to that state. Likewise, it is difficult to imagine what commerce clause policy concerns are promoted by requiring that the exemption be “fairly apportioned” or “fairly related” to the services for which the state has chosen not to tax. *20(See ante, p. 15.) These various factors relate to the propriety of taxing the in-state activity, assuring that the taxes are properly exacted for the services rendered by the state; the test was not designed to determine whether it is proper to exempt such property from tax.
The proper inquiry is whether the exemption statute, protecting only imports and exports, burdens the free flow of commerce among the several states. A recent United States Supreme Court case appears controlling. In Westinghouse Electric Corp. v. Tully (1984) 466 U.S. 388 [80 L.Ed.2d 388, 104 S.Ct. 1856], the State of New York, responding to federal tax legislation affecting “Domestic International Sales Corporations” (DISC), restructured its procedures for taxing distributions received by a parent corporation from its subsidiary. It also provided in part for a “partially offsetting tax credit,” applied to DISC income from export products “shipped from a regular place of business of the taxpayer within [New York].” (Id., at p. 393 [80 L.Ed.2d at p. 394].) The amount of the credit, applied to the parent corporation’s tax obligation for business activity conducted in New York, was dependent not only on the amount of goods the DISC shipped from New York, but also upon the percentage of the DISC’S shipping activity conducted in New York vis-a-vis other states.4 Parent corporations with identical business allocation percentages (the percentage of its total business activity conducted in New York), and identical New York DISC income were taxed differently depending upon the amount of DISC income derived from shipping activities in other states. (Id., at pp. 400-402, fn. 9 [80 L.Ed.2d at pp. 398-400].)
In analyzing whether “the method of allowing the credit is discriminatory in a manner that violates the Commerce Clause ...” (id., at p. 399 [80 L.Ed.2d at p. 398], italics added), the court focused on the fact that “not only does the New York tax scheme ‘provide a positive incentive for increased business activity in New York State’ ... it [also] penalizes increases in the DISC’S shipping activities in other States.” (Id., at pp. 400-401 [80L.Ed.2d at p. 398].) The court also reiterated the settled principles that “‘“[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States””’ (id., at p. 402 [80 L.Ed.2d at p. 400]), and that “‘[n]o State, consistent with the Commerce Clause, may “impose a tax which discriminates against interstate commerce ... by providing a *21direct commercial advantage to local business.’”” (Id., at p. 403 [80 L.Ed.2d at p. 400].)
Acknowledging that in each case the court must balance the national interest in free trade with the state’s interest in exercising its taxing powers (id., at p. 403), the court found the principles enunciated in Boston Stock Exchange, supra, and Maryland v. Louisiana (1981) 451 U.S. 725 [68 L.Ed.2d 576, 101 S.Ct. 2114], controlling.5 In both cases, the court struck down state statutes imposing greater economic burdens on similar activities occurring out-of-state than occurring in-state. The court concluded that the New York tax credit violated the commerce clause because it foreclose [d] tax-neutral decisions and. . . create[d]. . . an advantage’for firms operating in New York by placing ‘a discriminatory burden on commerce to its sister States.’ [Citation.]” (Westinghouse Electric, supra, 466 U.S. at p. 406 [80 L.Ed.2d at p. 402], italics added.)6
Nonetheless, the Westinghouse Electric court hastened to add that not all schemes to attract a particular segment of industry into a state are unconstitutional. The court stated: “We reiterate that it is not the provision of the credit that offends the Commerce Clause, but the fact that it is allowed on an impermissible basis, i.e., the percentage of a specific segment of the corporation’s business that is conducted in New York. As in Boston Stock Exchange, we do not ‘hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State.”’ (Id., at pp. 406-407, fn. 12 [80 L.Ed.2d at p. 403], italics added.)
The tax exemption granted by former section 225 to attract commerce to California ports was not grounded on an “impermissible basis.” There was *22no penalty imposed on activity conducted outside of California. Shippers not wishing to pay the inventory tax, levied as a quid pro quo for the services rendered by California, simply may have chosen to transship through another state. Unlike Boston Stock Exchange, Westinghouse Electric, and Maryland v. Louisiana, supra, no burden was imposed on interstate commerce by placing a penalty or disincentive on the choice to transact business in another state. Moreover, unlike the paradigm commerce clause case, local interests are not favored. (See Westinghouse Electric, supra, 466 U.S. at p. 403 [80 L.Ed.2d at p. 400].) The exemption is available regardless of the residency of the shipper or the place of manufacture of the goods, with the exception of those goods whose point of origin is California which do not qualify for the exemption because they are not being “transshipped” through California.
In my view, respondents’ claim at bottom is really an equal protection attack. They are complaining in essence that the state’s differential treatment of import and export business inventories from that of domestic goods lacks a rational basis. Assuming respondents would have standing to raise this issue, an unlikely conclusion under the majority’s analysis (see ante, p. 6), I submit that former section 225 would be upheld against such a challenge because the distinction it draws ‘“is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy . . . .’” (Allied Stores of Ohio v. Bowers (1959) 358 U.S. 522, 527 [3 L.Ed.2d 480, 485, 79 S.Ct. 437] [upholding against an equal protection clause challenge an Ohio statute providing only nonresidents an exemption for merchandise held in storage, from a tax otherwise imposed on “[a]ll personal property located and used in business in the state”].)
One such reasonable policy consideration may be the greater threat of business flight from California posed by importers and exporters rather than by those dealing in interstate commerce, which justifies a greater incentive for the former group. (See Zee Toys, Inc. v. County of Los Angeles (1978) 85 Cal.App.3d 763, 776 [149 Cal.Rptr. 750].) In any event, the Legislature was not required to expressly state these policy considerations. The statute would not violate the equal protection clause “if any state of facts reasonably can be conceived that would sustain it. [Citations.]” (Allied Stores, supra, 358 U.S. at p. 528 [3 L.Ed.2d at p. 486].)
The exemption provided by former section 225 does not run contrary to the limitations on state power implicit in either the foreign or interstate components of the commerce clause. The exemption neither interferes with the federal government’s ability to speak with one voice when regulating commercial relations with foreign governments, nor does it burden the free flow of interstate commerce by imposing a penalty on business activity *23conducted outside of California. I would find the tax exemption constitutional and would reverse the trial court’s ruling denying plaintiff’s claim for a refund of the improperly levied inventory tax.
Appellant’s petition for a rehearing was denied August 28, 1986. Lucas, J., was of the opinion that the petition should be granted.
All further statutory references are to the Revenue and Taxation Code.
As the court noted in Japan Line, the concern of preserving harmony among the states requires essentially the same inquiry as whether a state tax interferes with interstate commerce (441 U.S. at p. 449, fn. 14 [60 L.Ed.2d at pp. 348-349]), a matter which we treat more fully post. (See post, pp. 19-21.)
In Complete Auto, the high court stated that a state tax may be sustained “against a Commerce Clause challenge when [1] the tax is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State.” (430 U.S. at p. 279 [51 L.Ed.2d at p. 331].) The majority discusses only the third prong.
Though computed according to a five-step formula (id., at pp. 393-394 [80 L.Ed.2d at pp. 394-395]), the amount of the credit was, in essence, dependent upon the DISC’S “export ratio.” In other words, the credit otherwise applied to the New York DISC revenues attributable to the parent was further multiplied by the quotient derived from dividing DISC’S New York gross receipts by the DISC’S total gross receipts.
In Maryland v. Louisiana, supra, the court struck down Louisiana’s “First-Use” tax statute, imposing a tax on natural gas brought into the state, while providing exemptions and credits to local users, as “unquestionably discriminating against interstate commerce in favor of local interests.” (Id., at p. 756 [68 L.Ed.2d at p. 602].) Likewise in Boston Stock Exchange, supra, the court found violative of the commerce clause a stock transfer tax reducing the tax burden on nonresidents engaged in in-state (but not out-of-state) sales of stock, and creating a maximum tax limit for all stock buyers for purchases made in-state (but not out-of-state). The court found the tax unconstitutional because it “discriminates between two types of interstate transactions in order to favor local commercial interests over out-of-state businesses . . .” (id., at p. 335 [50 L.Ed.2d at p. 528], italics added), concluding that a state may not build up its own commerce by burdening businesses in other states. (Ibid.)
Significantly, the court did not cite or apply Complete Auto in either Westinghouse Electric or Maryland v. Louisiana, supra.