The opinion
SIMPSON, Circuit Judge
(concurring in part and dissenting in part):
I concur fully in the majority’s af-firmance of the district court’s treatment of the claim asserted for the older child of Mrs. Beaty, Franklin: reversal of the Secretary’s determination that “reliable, probative and substantial evidence of record” did not establish the existence of support payments for Franklin’s benefit by Bryant prior to the onset of Bryant’s disability in 1961.
But I respectfully dissent from the remaining portion of the opinion which sustains Mrs. Beaty’s cross-appeal and reverses the district court’s approval of the Secretary’s denial of benefits to the younger son, Tracy, born in 1966, five years subsequent to the onset of Bryant’s disability in 1961.
I would hold that the discrepancy in treatment between h(2) and h(3) 1 post-disability illegitimate children is rationally related to achieving legitimate Congressional goals, and that by passing this rational basis test the statutory scheme meets constitutional standards of equal protection under the Fifth Amendment Due Process Clause. Richardson v. Belcher, 1971, 404 U.S. 78, 81 , 92 S.Ct. 254, 257 , 30 L.Ed.2d 231, 235 ; Dan-dridge v. Williams, 1970, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 . We deal here with a federal statute which does not directly involve the Fourteenth Amendment’s Equal Protection Clause but it is clear that a classification which meets the Dmdridge equal protection test is necessarily consistent with the due process requirement of the Fifth Amendment. Richardson v. Belcher, supra; Shapiro v. Thompson, 1969, 394 U.S. 618, 641-642 , 89 S.Ct. 1322, 1335 , 22 L.Ed.2d 600, 619 ; Bolling v. Sharpe, 1954, 347 U.S. 497, 499 , 74 S.Ct. 693, 694 , 98 L.Ed. 884 .
In upholding the constitutionality of Title 42, U.S.C. § 416 (h)(3)(B), I would follow the majority opinion of the three-judge statutory court in Jimenez et al. v. Richardson, 1973, N.D.Ill., 353 F.Supp. 1356 rather than follow Judge Fairchild’s dissent as the-majority does. See also Watts v. Veneman, D.C.Cir. 1973, 476 F.2d 529 and its holding in a similar context:
“The entire thrust of the Social Security laws relevant to dependents is to provide benefits to those who were most likely to have relied upon the deceased for their support. In light of this overriding purpose, it is well-established that Social Security benefits are not accrued property rights. One’s ability to receive benefits is not dependent solely upon the biological relationship between the decedent and his children, but also upon the probability that the children were dependent for support upon the deceased.
Congress in enacting the Social Security laws made various judgments about the probability that children are dependent. For example, it seems more logical that illegitimates would be dependent upon their father if he has recognized them, or if in fact he is contributing to their support. The incorporation of a state’s intestacy laws for purposes of determining eli *310 gibility is in furtherance of this scheme. If an illegitimate child may not inherit, then the child’s support following the father’s death is less likely to be dependent upon what was received upon the deceased’s death than if the child could receive property following the wage earner’s demise.
It must be remembered that the Social Security laws do not exclude all il-legitimates from eligibility for payments. In this case, for example, the children of decedent Jones were and are fully eligible for support. Rather, the laws are reasonably designed to disqualify a class of illegitimates who are less likely, as a class, to possess the requisite biological or legal relationship to or economic dependency on the wage earner.” (Footnotes omitted)
. For simplicity I adopt the majority opinion's shorthand nomenclature.