496
Souter, J., dissenting
culture that "any fruit or vegetable commodity group which actively supports the development of a promotion program by this means should be given an opportunity to do so." S. Rep. No. 92-295, p. 2 (1971). Nor do the proposed rule-makings for authorizing advertising programs in marketing orders carry findings that might explain why such programs might be needed for the specified commodities but not others; the announcements rely instead on a "consensus of the industry . . . that promotional activities . . . have been beneficial in increasing demand," 36 Fed. Reg. 8736 (1971) (plums); see also 41 Fed. Reg. 14376-14377 (1976) (peaches).10
Of course, when government goes no further than regulating the underlying economic activity, this sort of piecemeal legislation in answer to expressions of interest by affected parties is plainly permissible, short of something so arbitrary as to fail the rational basis test. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487-489 (1955). But when speech is at stake, the government fails to carry its burden of showing a substantial interest when it does nothing more than refer to a "consensus" within a limited interest group that wants the regulation. Instead, the erratic pattern of regulation itself places the reality of any public or governmental interest in question, and a correlation with nothing more than the priorities of particular interest groups gives no reassuring answer.11
10 A possible exception is the proposed rulemaking for nectarines, which refers to the relative unfamiliarity of the consuming public with nectar-ines, due in part to the fact that new varieties that could be marketed nationally had only recently been developed. See 31 Fed. Reg. 5635, 5636 (1966). This solitary finding does not cure the other defects of the statutory scheme, however.
11 This does not mean that taking the views of the industry into account in itself renders a program suspect. Both the AMAA and the more general authorization of compelled agricultural advertising programs recently enacted as part of the FAIR Act require orders implementing such programs to be approved by producers and/or handlers in periodic referenda. See 7 U. S. C. §§ 608c(8)(A), (B), (9)(B)(i), (16), (19); FAIR Act § 518, 110
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