Full opinion text
OPINION OF THE COURT SCIRICA, Circuit Judge. This appeal concerns constitutional and statutory challenges to the Beef Promotion and Research Act of 1985, 7 U.S.C. §§ 2901-11 (Supp. III, 1985). The Act requires cattle producers and importers to finance a national beef promotional campaign by paying, on each head of cattle sold, a one dollar assessment, which is eventually remitted to statutorily designated organizations composed of industry representatives. The constitutional questions are whether the Act contravenes: (1) the limits of congressional power enumerated in the Federal Constitution; (2) the Free Speech and Association clauses of the First Amendment; or (3) the Takings Clause or Equal Protection guarantee of the Due Process Clause of the Fifth Amendment. The statutory questions are whether the Act: (1) creates a civil cause of action in which the government may recover uncollected assessments from “collecting persons”; or (2) authorizes the government to impose late payment charges. The district court held that the Act violated no constitutional provision, and that the Act authorizes a private cause of action against “collecting persons” for both uncollected payments and late charges. We will affirm. I. BACKGROUND A. Statutory and Regulatory Scheme The Beef Promotion and Research Act, Pub.L. No. 99-198, Title XVI, § 1601, 99 Stat. 1597 (codified as amended at 7 U.S.C. §§ 2901-11), first passed in 1976 and later amended in 1985, was designed to strengthen the beef industry’s position in the marketplace through a coordinated program of promotion and research. 7 U.S.C. §§ 2901(b). This legislation was structured as a “self-help” measure that would enable the beef industry to employ its own resources and devise its own strategies to increase beef sales, while simultaneously avoiding the intrusiveness of government regulation and the cost of government “handouts.” See Report of Committee on Agriculture, Beef Research and Information Act, H.R.Rep. No. 452, 94th Cong., 1st Sess. 3 (1975). The Beef Promotion and Research Program receives no direct funding from the federal government, and in this regard resembles a number of recent congressional enactments designed to make various federal regulatory programs partially or entirely self-financing. See Skinner v. Mid-America Pipeline, — U.S. -, 109 S.Ct. 1726, 1729, 104 L.Ed.2d 250 (1989) (characterizing Section 7005 of Consolidated Omnibus Budget Act of 1985, codified at 42 U.S.C.App. § 1682a, which directs Secretary of Transportation to collect “pipeline safety user fees” to fund administrative costs, as one example of several self-financing measures). Currently in existence are seven other promotion and research programs for agricultural commodities, identical in most respects to the Beef Promotion Act. See 7 U.S.C. §§ 2101-18 (1982) (cotton); 7 U.S.C. §§ 2611-27 (1982) (potatoes); 7 U.S.C. §§ 2701-18 (1982) (eggs); 7 U.S.C. §§ 4501-13 (Supp. III 1985) (dairy products); 7 U.S.C. §§ 4601-12 (Supp. III 1985) (honey); 7 U.S.C. §§ 4801-19 (Supp. III 1985) (pork); 7 U.S.C. §§ 4901-16 (Supp. III 1985) (watermelon). The Beef Promotion Act directs the Secretary of Agriculture to promulgate a Beef Promotion and Research Order that establishes this self-help program and provides for its financing “through assessments on all cattle sold in the United States and on cattle, beef, and beef products imported into the United States.” 7 U.S.C. §§ 2901(b), 2903, 2904(8)(A)-(C). The Beef Promotion Act itself, however, establishes the rate of assessment at one dollar ($1.00) per head of cattle, which must be paid by cattle producers and importers. 7 U.S.C. § 2904(8)(C). The Act also specifies most of the other terms that the Order must contain, see 7 U.S.C. § 2904(1)-(11), but authorizes the “inclusion of all terms and conditions necessary to effectuate the provision of the order,” provided they are not inconsistent with the statute. 7 U.S.C. § 2904(12). After notice and opportunity for public comment, the Beef Promotion and Research Order became effective on July 18, 1986, 7 C.F.R. §§ 1260.101-.217 (Subpart A), while the rules and regulations for collection of assessments, 7 C.F.R. §§ 1260.301-.316 (Subpart B), and the Certification for the Cattlemen’s Beef Promotion and Research Board, 7 C.F.R. §§ 1260.500-.530 (Subpart C), became effective on October 1, 1986. The Secretary’s Order, as the Act mandates, provides for the establishment of a Cattlemen’s Beef Promotion and Research Board (“Cattlemen’s Board”), and a Beef Promotion Operating Committee (“Operating Committee”) to administer the Order under the supervision of the Secretary. The Beef Promotion Act and Order specify the manner in which the membership of the Cattlemen’s Board is to be selected. First, the Order divides the United States into forty-two units that correspond primarily to the States. 7 C.F.R. § 1260.141(a). Forty-one of those units represent cattle producers, and one unit represents importers. Id. The Order specifies the number of Cattlemen’s Board members allocated to each unit. Id. “Eligible organizations” representing each unit submit nominations to the Secretary for positions on the Cattlemen’s Board. 7 U.S.C. §§ 2904(1), 2905(a); 7 C.F.R. § 1260.143(a). “Eligible organizations” are those existing state cattle organizations certified by the Secretary as meeting criteria specified by the Beef Promotion Act and Order, criteria which include large membership, history of stability, and an “overriding purpose of promoting the economic welfare of cattle producers.” 7 U.S.C. § 2905(b); 7 C.F.R. § 1260.530. From these nominations, the Secretary appoints the members of the Board. 7 U.S.C. § 2904(1); 7 C.F.R. § 1260.141(b). Similarly, the Beef Promotion Act and Order details the selection procedure to fill the twenty positions available on the Operating Committee. The Cattlemen’s Board elects from its own ranks ten members to serve on the Committee. 7 U.S.C. § 2904(4)(A); 7 C.F.R. §§ 1260.161. The other ten Committee members are cattle producers who are representatives of the “Federation,” which includes as its members “qualified State beef councils.” 7 U.S.C. § 2904(4)(A). A “qualified State beef council” is a beef promotion entity that is authorized by state statute, or a beef promotion entity that receives voluntary assessments or contributions from cattle producers; in either case, that entity is not “qualified” unless certified by the Cattlemen’s Board. 7 C.F.R. § 1260.115. Federation representatives on the Committee consist of the Federation chairperson and vice-chairperson, and eight elected cattle producers who are members of the Federation Board of Directors, and are members or ex officio members of the Board of Directors of a Qualified State beef council. 7 C.F.R. § 1260.161(c). The Secretary must certify that the Federation representatives meet the above criteria and that they have sufficiently disclosed any contractual relationship between the Federation representative and the Committee or Board. 7 U.S.C. § 2904(4)(A); 7 C.F.R. § 1260.161(c). Under the supervision of the Secretary, who must finally approve all budgets, plans, expenditures, and contracts for them to become effective, 7 U.S.C. §§ 2904(4)(C) & (6)(A), (B), the Operating Committee and the Cattlemen’s Board take the initiative in implementing the program. The Operating Committee has the responsibility for developing plans and projects of promotion and advertising, and of submitting to the Board, for its approval, budgets for the fiscal year. 7 U.S.C. § 2904(4)(A)-(C); 7 C.F.R. § 1260.168(b), (d), (e). The Operating Committee is also authorized to enter into contracts with established national nonprofit industry-governed organizations, including the Federation, to implement the Beef Promotion Act. 7 U.S.C. § 2904(6); 7 C.F.R. § 1260.168(f). The powers and duties of the Cattlemen’s Board, delineated by the Beef Promotion Act, include the power to: (A) administer the order; (B) make rules and regulations to effectuate the terms and provisions of the Order; (C) elect members to serve on the Operating Committee; and (D) approve or disapprove budgets submitted by the Committee. 7 U.S.C. § 2904(2)(A)-(D). Cattle producers and importers are required to pay an assessment of one dollar ($1.00) per head of cattle. 7 U.S.C. § 2904(8)(C); 7 C.F.R. § 1260.172(a)(1). In calculating the amount of assessment due, producers receive partial credit from the Cattlemen’s Board for contributions to a qualified State beef council. 7 U.S.C. § 2904(8)(A); 7 C.F.R. §§ 1260.172(a)(3). Each person making payment to a producer for cattle purchased is designated a “collecting person,” 7 C.F.R. § 1260.311(a), and is required to collect a per-head assessment and remit the assessments either to the qualified State beef council (which in turn remits the money to the Board), or if no such council exists in that State, directly to the Cattlemen’s Board. 7 U.S.C. § 2904(8)(A); 7 C.F.R. §§ 1260.172(a)(5), 1260.311(a), 1260.312(c). All “collecting persons” are obligated to maintain records of assessments collected and payments made pursuant to the Beef Promotion Act, and must make these records available to the Secretary for inspection. 7 U.S.C. 2904(11); 7 C.F.R. § 1260.202. The Order further requires collecting persons to report to the Board specific information for each calendar month at the time assessments are remitted. 7 C.F.R. § 1260.312(a)-(c). The Act does not provide for reimbursement for such expenditures. By regulation, collecting persons must remit assessments not later than the 15th day of the month following the month in which the assessments were collected. 7 C.F.R. §§ 1260.172(a), 1260.312(c). The Order also provides that any overdue assessments will be increased by 2% each month, beginning the date after the assessments were due. 7 C.F.R. § 1260.175. The Secretary is authorized to make investigations to uncover current, past, or future violation of the Beef Promotion Act and/or Order. 7 U.S.C. § 2909. Pursuant to this investigation, the Secretary has been given the power to administer oath and affirmation, to subpoena both witnesses and records, and to invoke the aid of the courts if the subpoenas are ignored. Id. In addition, the Act contains two specific enforcement mechanisms. The Secretary may, after an administrative hearing, issue an order to restrain or prevent a person from violating the Beef Order, and assess a civil penalty of up to $5,000 for a violation already committed. 7 U.S.C. 2908(a)(1) & (2). Alternatively, the Secretary may request that the Attorney General initiate a civil action to enforce, and to prevent and restrain a person from violating, any order or regulation promulgated by the Secretary under the Act. 7 U.S.C. § 2908(b) & (c). Within twenty-two months of the issuance of the Order, the Secretary was required to conduct a referendum among those persons who were producers and importers during the trial period. 7 U.S.C. § 2906(a). The Order would continue to operate only upon the approval by a majority of those participating in the referendum. Id. Prior to the referendum, any cattle producer who paid an assessment and who was not in favor of supporting the promotion and research program, could have demanded and received a full refund of the assessments paid. 7 U.S.C. § 2907; 7 C.F.R. §§ 1260.173, 1260.174. On May 10, 1988, the referendum was conducted and the Order was approved by 70% of those eligible to vote. Assessments, therefore, are now mandatory. B. Factual and Procedural History The facts are undisputed. The defendant-appellant L. Robert Frame, Sr. operates Vintage Sales Stables (“Vintage”), a cattle auction sales business in Lancaster County, Pennsylvania. Frame also raises cattle at his residence in Chester County, Pennsylvania. Consequently, under the Act, Frame qualifies as both a “collecting person” and a producer; he must collect the $1.00 per head of cattle assessments from the proceeds derived from the sale of cattle at his auction barn and pay the assessments on each head of cattle he sells as a producer. Since the effective date of the Beef Promotion Act, Frame has neither collected nor remitted the required assessments, nor filed the required reports, despite having received several warnings about his noncompliance from the Pennsylvania Beef Council, the Cattlemen’s Board, and the Department of Agriculture, Livestock and Seed Division. In November, 1986, the United States brought an action in the district court to recover money due from Vintage and Frame, as president of Vintage, for Frame’s failure to fulfill his obligations as a collecting person under the Beef Promotion Act and Order, i.e., to collect assessments on beef sold, remit those funds to the qualified State beef council, and maintain records of those collections. Frame did not dispute that he had failed to comply with the Beef Promotion Act. Instead, he asserted that the Beef Promotion Act is unconstitutional, and that the Act failed to confer upon the government the right to commence a civil action against collecting persons to recover uncollected assessments. Frame requested that the court enjoin the collection of assessments and the use of collected funds, and mandate the return of the funds not yet expended. After both parties moved for summary judgment, the district court granted the government’s motion for partial summary judgment on the issue of liability. United States v. Frame, 658 F.Supp. 1476 (E.D.Pa.1987). The court thereafter ordered defendant to file all reports required by the Act within a reasonable period and to provide the Secretary of Agriculture with such materials reasonably required to determine the amount of liability under the Act. After defendant complied with the court’s order, the government moved for summary judgment on the amount of liability. Defendant then renewed his motion for summary judgment, arguing that the Act did not authorize the government to recover uncollected assessments from defendant as a “collecting person,” or to impose late payment charges. The district court granted the government’s motion for summary judgment and entered judgment against defendant totalling $66,625.11 in uncollected assessments and late payment charges. This appeal followed. II. LACK OF CONGRESSIONAL AUTHORITY AND UNCONSTITUTIONAL DELEGATION Frame has maintained throughout this litigation that none of the enumerated powers in Article I of the United States Constitution confer upon Congress the authority to establish the sort of program instituted by the Beef Promotion Act. Following oral argument, we directed the parties to submit supplemental briefs discussing Congress’ authority to delegate to the members of industry: (1) the prerogative, through a referendum, to decide whether to put the program into effect; and (2) the responsibility for the collection of assessments and the decision as to precisely how the funds will be spent. We will address these issues in turn. A. The Commerce Power The parties now agree that in enacting the Beef Promotion Act, Congress presumed that it was exercising its power under the Commerce Clause. The Act’s finding that “beef and beef products move in interstate and foreign commerce,” or “directly burden or affect interstate commerce of beef and beef products,” 7 U.S.C. § 2901(a), reflects this intent. The question before us, therefore, is whether this Act is a valid regulation under the commerce clause. In finding for the government, the district court held that the promotion of beef represents a valid exercise of Congress’ “broad” power to “stimulate” interstate commerce. 658 F.Supp. at 1482. We agree. It is well settled that Congress will have validly exercised its power to regulate interstate commerce if the activity being regulated affects commerce, and if there is a rational connection between the regulatory means selected and the asserted ends. See Katzenback v. McClung, 379 U.S. 294, 301, 303-04, 85 S.Ct. 377, 383-84, 13 L.Ed.2d 290 (1964); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981). Furthermore, a reviewing court need only inquire whether there is a rational basis for the finding that the regulated activity affects interstate commerce. Hodel, 452 U.S. at 276, 101 S.Ct. at 2360. Similarly, it is now indisputable that the power to regulate interstate commerce includes the power to promote interstate commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964) (upholding congressional decision to “promote” interstate commerce by eradicating discriminatory practices that “obstruct” channels of commerce). “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions therein.” Wickard v. Filburn, 317 U.S. 111, 128, 63 S.Ct. 82, 91, 87 L.Ed. 122 (1942). Defendant does not challenge the rationality of the congressional finding that beef moves through interstate commerce and has a substantial effect on interstate commerce. Instead, defendant disputes that the Act is “regulatory” at all. He asserts that Congress has “created a trade association which is designed to benefit private industry,” which “exceeds any grant of regulatory power to Congress.” We disagree. Congress established the Beef Promotion and Research Program to “strengthen and expand” the nation’s beef markets. A regulation of commerce includes a congressional attempt to bolster the public image of a product in order to increase consumer demand. In the past, Congress has permissibly regulated commerce by influencing the supply side of agricultural markets by using devices such as production quotas, see Wickard v. Filburn, 317 U.S. at 128, 63 S.Ct. at 90 (Congress may have properly considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices), low-interest loans to producers, see 7 U.S.C. § 1447, and subsidies dictated by the federal government, see United States v. Rock Royal Co-Op., 307 U.S. 533, 554-55, 59 S.Ct. 993, 1004-05, 83 L.Ed. 1446 (1939) (Order No. 27 of Agricultural Marketing Agreement Act of 1937 permissibly required milk “handlers” to pay into producer settlement fund difference between minimum price and “uniform price” so that producers in all areas receive uniform price). Congress has, in addition, “stabilized” interstate commerce using direct price controls. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393-94, 60 S.Ct. 907, 912-13, 84 L.Ed. 1263 (1940). Congress has also stimulated the demand side of agricultural markets by creating demand in the form of direct government purchases. See 7 U.S.C. § 1447 (Supp. I 1983) (authorizing Secretary of Agriculture to purchase from producers agricultural commodities not in excess of 90% of the parity price). In enacting the Beef Promotion Act, Congress has chosen to “promote” and “stimulate” the demand side of the market indirectly, by influencing consumer attitudes towards beef. That this is an “indirect” rather than a “direct” form of regulation does not, by itself, render it invalid. The distinction between “indirect” and “direct” regulations of commerce, once at the core of commerce clause analysis, see, e.g., Carter v. Carter Coal, 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936) (legislation regulating maximum wages and minimum hours in coal mines invalid as it regulates production, which has only an “indirect” effect on commerce), has long been discredited, see Wickard v. Filburn, 317 U.S. at 128, 63 S.Ct. at 90. As part of its power to regulate interstate commerce, Congress may also regulate “activities” affecting commerce. See Katzenbach v. McClung, 379 U.S. at 301, 303-04, 85 S.Ct. at 382, 383-84. Accord Hodel v. Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360. In urging that the Beef Promotion Act is unconstitutional, defendant claims that no “activity” is being regulated. We disagree. Implicit in Frame’s argument is the fallacy that Congress must particularize the activity being regulated. Not only has Frame failed to cite a case where courts have invalidated an act of Congress because of its failure to specify the “activity” being regulated, the case law suggests that such specification is unnecessary. In upholding Title II of the Civil Rights Act of 1964, the Supreme Court characterized the “activity” being regulated as “interstate travel,” “public accommodations,” and “discriminatory practices,” thus implicitly suggesting that Congress need not identify with particularity the “activity” being regulated. See Heart of Atlanta Motel, 379 U.S. at 251-53, 85 S.Ct. at 354-55. Likewise, we decline to invalidate an otherwise lawful exercise of the commerce power on the basis Congress has not specified whether it is regulating the “activity” of “consumer beef purchases,” “interstate beef sales,” or “national beef markets.” Each activity is related, and is validly regulated by Congress. Our only remaining inquiry is whether there is a rational connection between the regulatory means selected and the asserted ends. See Hodel v. Virginia Surface Mining, 452 U.S. at 276, 101 S.Ct. at 2360; see also Heart of Atlanta Motel, 379 U.S. at 261, 85 S.Ct. at 359 (“How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of Congress.”). To stimulate the demand for beef, the lack of which Congress has determined is harming the beef industry, Congress has chosen from its arsenal of regulatory means promotion and advertising, research, consumer information and industry information. These endeavors are rationally related to the maintenance and expansion of the nation’s beef markets. Consequently, we hold that the Beef Promotion Act is a valid exercise of congressional power to regulate interstate commerce. B. Validity of Referendum Provision The Beef Promotion Act provision calling for an industry referendum following a period in which the promotional order was in effect, 7 U.S.C. § 2906(a), is almost identical to other referendum provisions that have been approved by the Supreme Court. As the Court held in Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 386, 83 L.Ed. 441 (1939), an industry referendum “does not involve any delegation of legislative authority.” In upholding the statute at issue in Currin, which provided that restrictions upon the marketing of tobacco were to become effective only upon a favorable vote by two-thirds of the growers, the Court explained that Congress ... [had] exercise[d] its legislative authority in making the regulation and in prescribing the conditions of its application. The required favorable vote upon the referendum was one of those provisions. Id. at 16, 59 S.Ct. at 387. Accord Wickard v. Filburn, 317 U.S. at 117-18, 63 S.Ct. at 85-86 (upheld validity of referendum of wheat farmers conducted pursuant to Agricultural Adjustment Act of 1938); United States v. Rock Royal Co-op., 307 U.S. at 577, 59 S.Ct. at 1014 (upheld referendum provision of Agricultural Marketing Agreement Act). See also Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943) (reasoning that law which became effective only on a majority vote of producers was exercise of legislative power by the state, not by producers). Accordingly, we hold that the referendum provision here, exercised pursuant to Congress’ commerce power, is a valid condition upon the application of the Beef Promotion Act and not an unlawful delegation of power. C. Assessment Collection and Spending Proposals by Cattlemen’s Board It is plain that the Beef Act does not unlawfully delegate legislative authority to the Secretary. “So long as Congress provides an administrative agency with standards guiding its action such that a court could ascertain whether the will of Congress had been obeyed, no delegation of legislative power has occurred.” Skinner v. Mid-America Pipeline, — U.S. -, 109 S.Ct. 1726, 1731, 104 L.Ed.2d 250 (citing Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). In the Beef Promotion Act, Congress has done more than provide standards for the administration of the Act; it has set forth with unusual specificity the terms of the Act’s implementation. Most importantly, Congress itself has set the amount of assessments at $1.00 per head of cattle, 7 U.S.C. § 2904(8)(C). Similarly, Congress has provided detailed procedures for determining the membership of the Cattlemen’s Board and the Operating Committee. See 7 U.S.C. § 2904(4)(A). In sum, under the Beef Promotion Act, Congress has delegated to the Secretary far less discretion than the Supreme Court has previously sanctioned in applying the non-delegation doctrine. See Skinner v. Mid-America Pipeline, 109 S.Ct. at 1731 (citing Lichter v. United States, 334 U.S. 742, 778-86, 68 S.Ct. 1294, 1313-17, 92 L.Ed. 1694 (1948)) (upholding delegation of authority to War Department to recover “excessive profits” earned on military contracts); Yakus v. United States, 321 U.S. 414, 420, 426-27, 64 S.Ct. 660, 665, 668-69, 88 L.Ed. 834 (1944) (upholding delegation of authority to the Price Administrator to fix prices of commodities that “will be generally fair and equitable and will effectuate the purposes” of the congressional enactment); FCC v. Hope Natural Gas Co., 320 U.S. 591, 600-01, 64 S.Ct. 281, 286-87, 88 L.Ed. 333 (1944) (upholding delegation to Federal Power Commission to determine “just and reasonable” rates)). Nor has Congress unlawfully delegated its legislative authority to members of the beef industry merely because the Cattlemen’s Board is authorized to collect assessments and to take the initiative in planning how those funds will be spent. In Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, the Supreme Court upheld a provision of the Bituminous Coal Act of 1937 that assigned a similar function to members of the coal industry. Under that Act, coal producers were organized under the Bituminous Coal Code and authorized to fix minimum prices for code members in accordance with stated standards. Id. at 388, 60 S.Ct. at 910. The prices set by the Code became effective upon approval or modification of the National Bituminous Coal Commission, the government agency charged with administering the Act. Id. In upholding the Act against the challenge that Congress had unlawfully delegated legislative authority to members of the coal industry, the Court stated: The members of the code function subor-dinately to the Commission. [The Commission] not the code authorities, determines the prices. And it has authority and surveillance over the activities of these authorities. Since law-making is not entrusted to the industry, this statutory scheme is unquestionably valid. Id. at 399, 60 S.Ct. at 915. Applying this standard to the Beef Promotion Act, we find that the amount of government oversight of the program is considerable, and conclude that no lawmaking authority has been entrusted to the members of the beef industry. Both the Act and the Order render the actions of the Cattlemen’s Board subject to the Secretary’s pervasive surveillance and authority. Board members are appointed by the Secretary, 7 U.S.C. § 2904(1); 7 C.F.R. § 1260.141(b), while members of both the Board and the Operating Committee may be removed “if the Secretary determines that the person’s continued service would be detrimental to the purposes of the Act.” 7 C.F.R. § 1260.212. The Board, as well as the Operating Committee, must give the Secretary notice of its meetings “in order that the Secretary or his representative may attend such meetings.” 7 C.F.R. §§ 1260.150(m), 1260.169(h). In addition, the Board and the Committee are required to prepare an annual report to be made public, 7 C.F.R. §§ 1260.150(k), 1260.169(g), and the Board is required to submit to the Secretary for each fiscal period an audit of its activities, 7 C.F.R. § 1260.150(l). Furthermore, all budgets, plans or projects approved by the Board become effective only upon final approval by the Secretary. 7 U.S.C. § 2904(4)(C). Similarly, no contracts for the implementation of any plans may be entered into without the Secretary’s approval. 7 U.S.C. §§ 2904(6)(A) & (B); 7 C.F.R. §§ 1260.150(f) & (g), 1260.-168(e) & (f). Therefore, we hold that the Beef Promotion Act does not constitute an unlawful delegation of legislative authority. In essence, the Cattlemen’s Board and the Operating Committee serve an advisory function, and in the case of collection of assessments, a ministerial one. Congress itself has set the amount of the assessments, while ultimately, it is the Secretary who decides how the funds will be spent. III. THE FIRST AMENDMENT Relying primarily on Abood v. Detroit Bd. of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), Frame argues that the Beef Promotion Act violates his rights of free association and free speech under the First Amendment. More specifically, Frame asserts that his associational rights are violated because: The [Beef Promotion Board] is engaging in a nationwide media campaign designed to increase the national consumption of beef, and beef products. The Appellants have no desire to participate in this program, disagree with its message and methods, and want no part of any association, express or implied[,] with this government created trade association. Similarly, Frame asserts that the Act breaches his constitutional right to refrain from speaking, because it compels him to participate administratively and financially in the promotion of a cause (an advertising campaign “to strengthen and preserve the position of beef and beef products in the marketplace”) and a message (the consumption of beef is “desirable, healthy, nutritious”) with which he disagrees. The district court determined that defendant’s first amendment rights had been neither burdened nor violated. The court reasoned that the speech authorized and funded by the Act was “government speech,” which does not coerce the private individual to endorse an ideological position, but merely communicates the viewpoint of the federal government. 658 F.Supp. at 1482. The government, the court concluded, is “using defendants’ money to erect its own billboard.” Id. The district court noted the policy considerations supporting its decision: Many citizens may disagree with the government’s position on controversial issues. The first amendment stands ready to protect their right to voice their disagreement. However, it would indeed be a strange result to invoke the same amendment to limit the right of the government to express its views by requiring that the government allow any individual who disagrees with government speech to opt out of his obligation to contribute to the cost. Id. Similarly, the district court reasoned that the First Amendment confers upon citizens no “right to refuse to ‘associate’ with a government program.” Accordingly, the court held the Act “required [Frame] to ‘associate’ with the Beef Promotion Program no more than any taxpayer is required to associate with armed forces advertisements, Social Security, or the Voice of America.” Id. A. Free Speech and Association and “Government Speech” While the First Amendment on its face protects neither the right of association, nor the right to refrain from speech or association, our jurisprudence has plainly established such rights. The Supreme Court has declared that the right of an individual to engage in activities protected by the First Amendment — speech, assembly, petition for redress of grievances and the exercise of religion — encompasses the corresponding right to “associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 618, 622, 104 S.Ct. 3244, 3250, 3252, 82 L.Ed.2d 462 (1984) (state statute banning gender discrimination in public clubs implicated members associational rights). This right of “freedom of expressive association,” see id. at 618, 104 S.Ct. at 3250, has been held to “presuppose a right not to associate.” Id. at 623, 104 S.Ct. at 3252. In a parallel line of cases, the Supreme Court has held that the First Amendment encompasses a constitutional right to “refrain from speaking.” Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (state may not require dissenting citizen to bear state slogan, “Live Free or Die,” on automobile license-plate). The seminal case announcing this right was West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), in which the Court held that school children with religious objections to the flag saluting ceremony have the constitutional right to be free from “compulsion ... to declare a belief.” Id. at 633, 63 S.Ct. at 1183. Compelled contributions to private groups engaging in first amendment activities have been held to implicate these two aspects of first amendment liberty. In Abood v. Detroit Bd. of Education, 431 U.S. 209, 97 S.Ct. 1782, the Supreme Court recognized that state laws authorizing unions and management to enter into “agency shop” agreements, which require that every employee, as a condition of employment, pay the union a service charge equal in amount to union dues, impinge upon the employee’s right to be free from both compelled affirmation of belief and from compelled association for expressive purposes. Id. at 222, 97 S.Ct. at 1792 (reaffirming prior decisions that agency shop agreements themselves justified by compelling state interests in industrial harmony). Thereafter, in Galda v. Rutgers, 772 F.2d 1060, 1066 (3d Cir.1985) (Galda II), cert. denied, 475 U.S. 1065, 106 S.Ct. 1375, 89 L.Ed.2d 602 (1986), this court held that a state university’s funding mechanism which required every student to contribute to an independent, outside, non-profit corporation that engages in research, lobbying, and litigation for social change, violated the first amendment rights of dissenting students, as those rights were articulated in Abood. See also Galda v. Bloustein, 686 F.2d 159, 163 (3d Cir.) (1982) (Galda I) (without compelling state interest, refund mechanism alone failed to remedy constitutional impingement). As an initial matter, we note that “freedom of association,” while protecting the rights of citizens to engage in “expressive” or “intimate” association, does not protect every form of association. See City of Dallas v. Stanglin, — U.S. -, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) (activity of dance hall patrons, as “social association,” not encompassed in constitutional associational rights). Therefore, we find that the aspect of the Beef Promotion Act which imposes the assessments for research purposes qualifies as neither “expressive” nor “intimate” association, and therefore does not implicate Frame’s first amendment rights. The government maintains that citizens do not have the right to refuse to support financially government programs with which they disagree, even if that program involves expressive association. In addition to advocating the rationale adopted by the district court, the government also relies on a footnote in Justice Powell’s concurrence in Abood, which cautioned that “[cjompelled support of a private association is fundamentally different from compelled support of government.” 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13 (Powell, J., concurring). Accordingly, the government views the Cattlemen’s Board and the Operating Committee as government entities, stressing that they were created pursuant to a federal statute and are closely supervised by the Secretary. Justice Powell wrote in Abood: Compelled support of private association is fundamentally different from compelled support of government. Clearly, a local school board does not need to demonstrate a compelling state interest every time it spends a taxpayer’s money in ways the taxpayer finds abhorrent. But the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected speech in this context. Abood, 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13. We find merit in this argument. Citizens’ tax dollars purchase a considerable amount of “government speech.” Not only does the government speak on behalf of its citizens when it airs advertisements warning of the dangers of cigarette smoking or drug use, praising a career in the armed services, or offering methods for AIDS prevention, each time the President of the United States meets with a foreign dignitary, or state department officials enter into arms control negotiations, the government is engaging in expressive activities on behalf of everyone. Indeed, citizens of a country with a representative form of government have agreed to elect individuals to official posts who will, and must, speak and act on behalf of the entire population, including on behalf of those who disagree with all or some of the government’s programs. The district court and the government have set forth sound reasons for concluding that the expressive activities financed by the Beef Promotion Act constitute “government speech.” The Cattlemen’s Board and the Operating Committee, the argument goes, are merely instrumentalities created to enable the Secretary of Agriculture to communicate his message that beef is good. As we have previously noted, the connection between these entities and the Secretary is a close one. The Board and Committee members serve at the pleasure of the Secretary of Agriculture: Cattlemen’s Board members are appointed by the Secretary, 7 U.S.C. § 2904(1); 7 C.F.R. § 1260.141(b), while members of both the Board and the Operating Committee may be removed “if the Secretary determines that the person’s continued service would be detrimental to the purposes of the Act,” 7 C.F.R. § 1260.212. Moreover, the Secretary makes the final decisions on all projects funded under the Act. All budgets, plans or projects approved by the Board become effective only upon final approval by the Secretary, 7 U.S.C. § 2904(4)(C), and no contracts for the implementation of any plans may be entered into without the Secretary’s approval, 7 U.S.C. §§ 2904(6)(A) & (B); 7 C.F.R. §§ 1260.150(f) & (g), 1260.168(e) & (f). Thus, when the Board or Committee “speaks,” they do so on behalf of the Secretary of Agriculture and the government of the United States. Nevertheless, though we find the issue a close one, the underlying rationale of the right to be free from compelled speech or association leads us to conclude that the compelled expressive activities mandated by the Beef Promotion Act are not properly characterized as “government speech.” Justice Powell’s Abood concurrence sought to ensure that “a local school board need not demonstrate a compelling state interest every time it spends a taxpayer’s money in ways the taxpayer finds abhorrent.” 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13. This attempt to cabin the Abood decision echoed prior sentiments that recognition of a broad right against compelled association and belief might obstruct normal governmental functions. In Wooley v. Maynard, for example, the Court determined that coerced bearing of the state slogan on one’s car violated freedom of belief, but apparently acquiesced to the dissent’s observation that the state was free to tax all citizens for erection and maintenance of billboards bearing state motto “Live Free or Die,” see id., 430 U.S. at 721, 97 S.Ct. at 1438 (Rehnquist, J., dissenting). See also Lathrop v. Donohue, 367 U.S. 820, 860, 81 S.Ct. 1826, 1847, 6 L.Ed.2d 1191 (1961) (Harlan, J., concurring) (analogizing invalidity of lawyer’s first amendment challenge to state integrated bar association to taxpayer’s objection to use of tax funds for school textbooks or instruction that the taxpayer finds intellectually repulsive). These situations, we believe, are distinguishable from the case now before us. Both the right to be free from compelled expressive association and the right to be free from compelled affirmation of belief presuppose a coerced nexus between the individual and the specific expressive activity. When the government allocates money from the general tax fund to controversial projects or expressive activities, the nexus between the message and the individual is attenuated. See Wooley v. Maynard, 430 U.S. at 721, 97 S.Ct. at 1438 (Rehnquist, J., dissenting). In contrast, where the government requires a publicly identified group to contribute to a fund earmarked for the dissemination of a particular message associated with that group, the government has directly focused its coercive power for expressive purposes. Cf. Galda I, 686 F.2d at 165 (distinguishing standard “student activity fee” from PIRG funding system, as PIRG fee is segregated from other charges on students’ bill and provides support for only one organization). This sort of funding scheme, with its close nexus between the individual and the message funded, more closely resembles the Abood situation, where the unions, as exclusive bargaining agents, served as the locutors for a distinguishable segment of the population, i.e., the employees, or the Wooley case, where the state “requirefd] an individual to participate in the dissemination of an ideological message by displaying it on his property in a manner and for the express purpose that it be observed and read by the public,” 430 U.S. at 713, 97 S.Ct. at 1434, regardless of whether the state-issued license plates constituted “government speech.” Furthermore, Justice Powell’s justification for distinguishing compelled support of government from support of a private association does not fit comfortably with a “self-help” measure like the Beef Promotion Act. According to Justice Powell, the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. 431 U.S. at 259 n. 13, 97 S.Ct. at 1811-12 n. 13. The Cattlemen’s Board seems to be an entity “representative of one segment of the population, with certain common interests.” Members of the Cattlemen’s Board and the Operating Committee, though appointed by the Secretary, are not government officials, but rather, individuals from the private sector. The pool of nominees from which the Secretary selects Board members, moreover, are determined by private beef industry organizations from the various states. Furthermore, the State organizations eligible to participate in Board nominations are those that “have a history of stability and permanency,” and whose “primary or overriding purpose is to promote the economic welfare of cattle producers.” 7 U.S.C. § 2905(b)(3) & (4). Therefore, we believe that although the Secretary’s extensive supervision passes muster under the non-delegation doctrine, it does not transform this self-help program for the beef industry into “government speech.” B. Constitutionality of these Incursions on First Amendment Rights A determination that the Beef Promotion Act assessments implicate Frame’s first amendment rights does not, however, end our inquiry. The rights of free speech and association are not absolute. Thus, we must next identify the proper standard for evaluating whether the statute, though affecting. Frame’s first amendment rights, nevertheless passes constitutional muster. Frames concedes that the compelled speech at issue here qualifies as “commercial speech,” which the Supreme Court has held receives a lesser degree of first amendment protection than “non-commercial speech.” See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985). In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Supreme Court set forth this less protective standard for evaluating constitutionality of commercial speech regulation, holding that the Constitution requires only that (1) the state “assert a substantial government interest”; (2) “the regulatory technique be in proportion to that interest”; and (3) the incursion on commercial speech be “designed carefully to achieve the State’s goal.” Id. at 564, 100 S.Ct. at 2350. Frame also claims, however, that compelled contributions to the Beef Promotion Program implicate his right to be free from compelled association, a claim we have already held to be supported by the Abood decision. See Abood, 431 U.S. at 222, 97 S.Ct. at 1792. As we read the Supreme Court’s decision in Roberts v. Unites States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, Frame’s assertion of a free association claim triggers a higher standard of scrutiny than employed in cases involving only regulation of commercial speech. In Roberts, the Supreme Court held that government interference with associational rights must be justified by “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Id. at 623, 104 S.Ct. at 3252. In so holding, the majority declined to require an association to establish as a threshold matter that its expressive activities are primarily “noncommercial,” and thus deserving of the full protection of the First Amendment. See Id. at 633-35, 104 S.Ct. at 3257-59 (O’Connor, J. concurring) (maintaining that regulation of commercial association incurs a less exacting standard of review). Accordingly, we will sustain the constitutionality of the Beef Promotion Act only if the government can demonstrate that the Act was adopted to serve compelling state interests, that are ideologically neutral, and that cannot be achieved through means significantly less restrictive of free speech or associational freedoms. See Roberts, 468 U.S. at 623, 104 S.Ct. at 3252; Wooley v. Maynard, 430 U.S. at 715-16, 97 S.Ct. at 1435-36; Galda I, 686 F.2d at 166-67. While the government’s burden is a heavy one, see Galda II, 772 F.2d at 1066, we conclude that the importance of the governmental interest justifies the slight incursion on Frame’s associational and free speech rights. 1. The Government’s Interest Frame’s characterization of the government interest here as “the interest in advertising beef,” virtually concedes the importance of the interest cast by Congress: preventing further decay of an already deteriorating beef industry. That the interest advanced by the Beef Promotion Act is primarily economic does not diminish its importance. For example, the establishment of industrial harmony — although an “economic” interest — is sufficiently important to justify significant intrusions on the employees rights to associate. See Ellis v. Brotherhood of Ry. Clerks, 466 U.S. 435, 455-56, 104 S.Ct. at 1883, 1895-96, 80 L.Ed.2d 428 (1984). In this case, the national interest in maintaining and expanding beef markets proves similarly compelling. Widespread losses and severe drops in the value of inventory have driven many cattlemen to bankruptcy, as well as to the abandonment of ranching altogether. See Committee Report, Beef Research and Information Act, H.R.Rep. No. 452, 94th Cong., 1st Sess. 2-3 (1975). A continuation of this trend would endanger not only the country’s meat supply, but the entire economy. See id. at 3; 121 Cong.Rec. H31439 (1975) (remarks of Rep. Santini); H.R.Rep. No. 271, 99th Cong., 1st Sess. 2 (1985), reprinted in 1985 U.S.Code Cong. & Admin.News 1103, 1111. The Act also furthers important non-economic interests. Maintenance of the beef industry ensures preservation of the American cattlemen’s traditional way of life. 121 Cong.Rec. H31436 (1975) (statement of Rep. Rails-back). The vehicle for funding the Beef Promotion Act, i.e., mandatory assessments to the Cattlemen’s Board, plays an integral role in advancing both the economic and non-economic goals of the Act. Prior to the passage of the Beef Promotion Act in 1976, there had existed a Beef Promotion Board funded by voluntary contributions. In contrast, the Beef Promotion Act mandates assessments, presumably to prevent “free-riders” from receiving the benefits of the promotion and research program without sharing the cost. See 121 Cong.Rec. 31,448 (1976) (statement of Sen. Steiger) (proposed that contributions remain voluntary, but received no support). See also 121 Cong.Rec. 31,448 (statement of Rep. Poage) (consumers do not contribute to programs’ cost and therefore are not entitled to representation on Cattlemen’s Board). The Cattlemen’s Board and Operating Committee prove similarly crucial to the scheme. When the Beef Promotion Act was originally passed in 1976, its supporters emphasized that the Act is a “self-help program — which will cost the Government nothing.” 121 Cong. Rec. 38,114 (statement of Sen. Talmadge). See also 121 Cong. Rec. 31,439 (legislation not “calling for a subsidy from Uncle Sam”) (statement of Rep. Skubitz). In fact, while the bill originally required the government to bear the costs of the referendum if the program fails in referendum, see H.R.Rep. No. 452, 94th Cong., 1st Sess. 4 (1975), it was amended in committee so that the Cattlemen’s Board would reimburse the Secretary for the cost of the referendum even if the producers ultimately voted to reject the program. 121 Cong. Rec. at 31,445 (1975). When the Beef Research and Information Act was revised and strengthened in 1985 to its present form, this beef promotion program was incorporated into the larger Food Security Act of 1985, 7 U.S.C. §§ 1281 et seq. (Supp. III. 1985), which aimed to protect the farm and livestock industry in “the face of the national deficit, which requires the tightest possible constraint on federal spending.” H.R.Rep. No. 271, 99th Cong., 1st Sess. 2 (1985), reprinted in 1985 U.S.Code Cong. & Admin. News 1103, 1113. In addition to these economic concerns, Congress intentionally structured this legislation as a “self-help” measure so as to ensure the support, and respect the integrity, of the independent American cattlemen. See, e.g., 121 Cong. Rec. 38,116 (only “self-help” legislation proper for industry not traditionally recipient of government subsidies) (statement of Sen. Hansen); 121 Cong. Rec. 31,439 (“In keeping with their true free enterprise nature, cattlemen are asking only for enabling legislation”) (statement of Rep. San-tini); 121 Cong.Rec. 31,448 (1975) (statement of Sen. Baucus) (Montana ranchers historically unwilling to accept government handouts or interference). 2. Ideological Neutrality The purpose underlying the Beef Promotion Act is ideologically neutral. The federal government seeks to bolster the image of beef solely to increase sales; it harbors no intent to “prescribe orthodoxy” or “communicate an official view,” see e.g., Wooley v. Maynard, 430 U.S. at 716-17, 97 S.Ct. at 1436-37 (state required that license plates bear state motto to “promote appreciation of history, individualism, and state pride”); West Virginia Bd. of Education v. Barnette, 319 U.S. at 624-25, 63 S.Ct. at 1179 (compulsory flag salute sought to engender “national unity”). 3. Degree of Infringement on First Amendment Rights As we have noted, in Abood v. Detroit Bd. of Education, the Supreme Court acknowledged that agency shop agreements significantly infringe upon associational rights: An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role of exclusive representative. His moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective-bargaining agreement proscribing racial discrimination. 431 U.S. at 222, 97 S.Ct. at 1792. Nevertheless, the Abood Court reaffirmed the decision in Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), and International Ass’n. of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), that “agency shop” or “union shop” agreements were constitutional insofar as the money was spent for collective bargaining, as the incursion had been sufficiently justified by the governmental interest in promoting industrial peace. Abood, 431 U.S. at 222, 224, 225, 97 S.Ct. at 1792, 1793, 1794. This was not true, however, as to expenditures unrelated to “the cause which justified bringing the group together.” Id. at 223, 97 S.Ct. at 1793. Accordingly, the Abood Court held that dissenters may not be forced to contribute to political candidates and express political views unrelated to the union’s duties as exclusive bargaining representative. Id. at 223-34, 97 S.Ct. at 1793-94. In comparison with the broad constitutional incursions arising from agency and union shop agreements and countenanced in Hanson, Street, and Abood, the Beef Promotion Act’s interference with first amendment rights appears slight. The Cattlemen’s Board is authorized only to develop a campaign to promote the product that the defendant himself has chosen to market. Thus, the Cattlemen’s Board is authorized only to engage in commercial speech on behalf of beef producers. Unlike the union, the Board will not engage in activities that necessarily implicate a broad range of ideological, moral, religious, economic, and political interests, such as negotiation of wage increases, medical benefits, and limitations on the right to strike. Furthermore, in Ellis v. Brotherhood of Ry. Clerks, 466 U.S. 435, 104 S.Ct. 1883, the Court explicitly recognized that spending for non-political purposes burdens first amendment rights less significantly than does spending for other purposes. In that case, the Supreme Court rejected a challenge by employees to the use of union funds for social activities, finding that compulsory contributions for these purposes do not implicate any greater infringement on first amendment rights than the permissible contributions already required for collective bargaining. Id. at 455-57, 104 S.Ct. at 1895-97. We find it significant that the Beef Promotion Act expressly prohibits spending for political activity. 7 U.S.C. § 2904(10) (“The order shall prohibit any funds collected by the Board under the order from being used in any manner for the purpose of influencing governmental action or policy, with the exception of recommending amendments to the order.”). This prohibition on political expenditures avoids what the Court has identified as what would be a significant incursion on Frame’s constitutional rights, while ensuring that the extent of the interference here is no more than necessary to further the government’s interest. Nor have defendant’s specific objections to the promotional activities authorized by the Beef Promotion Act persuaded us that the Act significantly burdens his first amendment rights. The Abood Court declared that “the individual cannot withdraw his support merely because he disagrees with the group’s strategy.” 431 U.S. at 223, 97 S.Ct. at 1793 (quoting Machinists v. Street, 367 U.S. at 778, 81 S.Ct. at 1805) (Douglas, J., concurring). In Abood, the employees asserted that the agency-shop clause forced them to contribute to “a number and variety of activities and programs which are economic, political, professional, scientific, and religious in nature of which Plaintiffs do not approve....” 431 U.S. at 213, 97 S.Ct. at 1788. Similarly, the plaintiffs in Galda expressly protested the coerced support of “ideological” activities. Galda I, 686 F.2d at 163. In contrast, Frame has vaguely claimed that the Cattlemen’s Board “promotes a specific point of view, i.e., that the consumption of beef is desirable, healthy, nutritious”, and he disagrees with the Board’s “message and methods.” Frame has failed to characterize his objection to the advertisements in a manner that would allow a reviewing court to reasonably infer a dispute over anything more than mere strategy. See Abood, 431 U.S. at 223, 97 S.Ct. at 1793. In conclusion, although we find that the Beef Promotion Act implicates the first amendment rights of those obligated to participate, we hold that the government has enacted this legislation in furtherance of an ideologically neutral compelling state interest, and has drafted the Act in a way that infringes on the contributors’ rights no more than necessary to achieve the stated goal. IV. THE FIFTH AMENDMENT The Fifth Amendment forms the basis of two separate challenges by Frame to the constitutionality of the Beef Promotion Act. First, Frame claims that the Act unlawfully discriminates against producers in violation of the equal protection guarantee of the Fifth Amendment’s Due Process Clause. Second, defendant claims that the Beef Promotion Act constitutes a “taking” of private property without a public purpose or just compensation. A. The Equal Protection Guarantee The Fifth Amendment contains an implicit equal protection component that prohibits the federal government from discriminating between individuals or groups. See Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976) (citing Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954)). Unless the statute creates a suspect classification or impinges upon a constitutionally protected right, however, it need only be shown that the differential treatment bears “some rational relationship to a legitimate state purpose.” City of Dallas v. Stanglin, — U.S. -, 109 S.Ct. 1591, 1594, 104 L.Ed.2d 18 (1989). Rational-basis scrutiny is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” Id. Frame argues to this court that the Beef Promotion Act assessments are “taken only from him, as beef producer, while the benefits of the advertising campaign inure to all those participating in the beef industry, such as packers, sellers, processors, transporters, and the like.” In his answer and counterclaim, Frame complains only that the financial burdens of this Act are imposed in an arbitrary manner. In his brief, Frame concedes that “no fundamental right is herein involved,” and therefore concludes that “the appropriate review is the rational or reasonable basis test.” Accordingly, Frame argues that the Act “unreasonably” and “arbitrarily” discriminates against him in violation of the due process clause of the equal protection component of the due process clause of the Fifth Amendment. Having held that the Beef Promotion Act did not interfere with Frame’s first amendment rights because it finances government speech as opposed to coercing private speech, the district court viewed the Act as an economic regulation distributing economic burdens. Thus, the court determined that the government had demonstrated a “rational basis” for Congress’ choice to levy the assessment only against beef producers and importers. 658 F.Supp. at 1481. The court suggested several possible rational bases for Congress’ dec