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/*We continue with the dissenting opinions in the Omni case. */
Justice Stevens, with whom Justice White and Justice Marshall
join, dissenting.

Section 1 of the Sherman Act provides in part: "Every contract,
combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with
foreign nations, is declared to be illegal." 15 U. S. C. MDRV 1
(emphasis added).  Although we have previously recognized that a
completely literal interpretation of the word "every" cannot have
been intended by Congress, {1} the Court today carries this
recognition to an extreme by deciding that agreements between
municipalities, or their officials, and private parties to use
the zoning power to confer exclusive privileges in a particular
line of commerce are beyond the reach of MDRV 1.  History,
tradition, and the facts of this case all demonstrate that the
Court's attempt to create a "better" and less inclusive Sherman
Act, cf. West Virginia University Hospitals, Inc. v.  Casey, ---
U. S. --- (1991) (slip op., at 17) is ill advised.

I

As a preface to a consideration of the "state action" and
socalled "Noerr-Pennington" exemptions to the Sherman Act, it is
appropriate to remind the Court that one of the classic common-
law examples of a prohibited contract in restraint of trade
involved an agreement between a public official and a private
party.  The public official -- the Queen of England -- had
granted one of her subjects a monopoly in the making,
importation, and sale of playing cards in order to generate
revenues for the crown.  A competitor challenged the grant in The
Case of Monopolies, 11 Co. Rep. 84, 77 Eng. Rep. 1260 (Q.B.
1602), and prevailed.  Chief Justice Popham explained on behalf
of the bench:

     "The Queen was . . . deceived in her grant; for the
     Queen . . . intended it to be for the weal public, and it
     will be employed for the private gain of the patentee, and
     for the prejudice of the weal public; moreover the Queen
     meant that the abuse should be taken away, which shall never
     be by this patent, but potius the abuse will be increased
     for the private benefit of the patentee, and therefore . . .
     this grant is void jure Regio." Id., at 87a; 77 Eng. Rep.,
     at 1264.

In the case before us today, respondent alleges that the city of
Columbia, South Carolina, has entered into a comparable agreement
to give respondent a monopoly in the sale of billboard
advertising.  After a three-week trial, a jury composed of
citizens of the vicinage found that, despite the city fathers'
denials, there was indeed such an agreement, presumably motivated
in part by past favors in the form of political advertising, in
part by friendship, and in part by the expectation of a
beneficial future relationship -- and in any case, not
exclusively by a concern for the general public interest. {2}

Today the Court acknowledges the anticompetitive consequences of
this and similar agreements but decides that they should be
exempted from the coverage of the Sherman Act because it fears
that enunciating a rule that allows the motivations of public
officials to be probed may mean that innocent municipal officials
may be harassed with baseless charges.  The holding evidences an
unfortunate lack of confidence in our judicial system and will
foster the evils the Sherman Act was designed to eradicate.

/* The idea being that a jury and then Judge behind that can
divine between the cases in which there is a form of "bribery"
and where there is just a decision between competing public
policy concerns. */

II

There is a distinction between economic regulation, on the one
hand, and regulation designed to protect the public health,
safety, and environment.  In antitrust parlance a "regulated
industry" is one in which decisions about prices and output are
made not by individual firms, but rather by a public body or a
collective process subject to governmental approval.  Economic
regulation of the motor carrier and airline industries was
imposed by the Federal Government in the 1930s; the
"deregulation" of those industries did not eliminate all the
other types of regulation that continue to protect our safety and
environmental concerns.

The antitrust laws reflect a basic national policy favoring free
markets over regulated markets. {3} In essence, the Sherman Act
prohibits private unsupervised regulation of the prices and
output of goods in the marketplace.  That prohibition is
inapplicable to specific industries which Congress has exempted
from the antitrust laws and subjected to regulatory supervision
over price and output decisions.  Moreover, the so-called "state
action" exemption from the Sherman Act reflects the Court's
understanding that Congress did not intend the statute to preempt
a State's economic regulation of commerce within its own borders.

The contours of the state action exemption are relatively well-
defined in our cases.  Ever since our decision in Olsen v. Smith,
195 U. S. 332 (1904), which upheld a Texas statute fixing the
rates charged by pilots operating in the Port of Galveston, it
has been clear that a State's decision to displace competition
with economic regulation is not prohibited by the Sherman Act.
Parker v. Brown, 317 U. S. 341 (1943), the case most frequently
identified with the state action exemption, involved a decision
by California to substitute sales quotas and price control -- the
purest form of economic regulation -- for competition in the
market for California raisins.

In Olsen, the State itself had made the relevant pricing
decision.  In Parker, the regulation of the marketing of
California's 1940 crop of raisins was administered by state
officials.  Thus, when a state agency, or the State itself,
engages in economic regulation, the Sherman Act is inapplicable.
Hoover v. Ronwin, 466 U. S. 558, 568-569 (1984); Bates v.  State
Bar of Arizona, 433 U. S. 350, 360 (1977).

Underlying the Court's recognition of this state action exemption
has been respect for the fundamental principle of federalism.  As
we stated in Parker, 317 U. S., at 351, "In a dual system of
government in which, under the Constitution, the states are
sovereign, save only as Congress may constitutionally subtract
from their authority, an unexpressed purpose to nullify a state's
control over its officers and agents is not lightly to be
attributed to Congress."

However, this Court recognized long ago that the deference due
States within our federal system does not extend fully to conduct
undertaken by municipalities.  Rather, all sovereign authority
"within the geographical limits of the United States" resides
with "the Government of the United States, or [with] the States
of the Union.  There exist within the broad domain of sovereignty
but these two.  There may be cities, counties, and other
organized bodies with limited legislative functions, but they are
all derived from, or exist in, subordination to one or the other
of these." United States v. Kagama, 118 U. S. 375, 379 (1886).

Unlike States, municipalities do not constitute bedrocks within
our system of federalism.  And also unlike States, municipalities
are more apt to promote their narrow parochial interests "without
regard to extraterritorial impact and regional efficiency."
Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 404
(1978); see also The Federalist No.  10 (J. Madison) (describing
the greater tendency of smaller societies to promote oppressive
and narrow interests above the common good).  "If municipalities
were free to make economic choices counseled solely by their own
parochial interests and without regard to their anticompetitive
effects, a serious chink in the armor of antitrust protection
would be introduced at odds with the comprehensive national
policy Congress established." Lafayette v. Louisiana Power &
Light Co., 435 U. S., at 408.  Indeed, "[i]n light of the serious
economic dislocation which could result if cities were free to
place their own parochial interests above the Nation's economic
goals reflected in the antitrust laws, . . . we are especially
unwilling to presume that Congress intended to exclude
anticompetitive municipal action from their reach." Id., at 412-
413. {4}

/* Which is a quotation directly contrary to the majority's
point. The jury and court found that the cities action were not
even legal under South Carolina law, therefore, the preservation
of STATE rights is not advanced by the majority opinion. */

Nevertheless, insofar as municipalities may serve to implement
state policies, we have held that economic regulation
administered by a municipality may also be exempt from Sherman
Act coverage if it is enacted pursuant to a clearly articulated
and affirmatively expressed state directive "to replace
competition with regulation." Hoover, 466 U. S., at 569.
However, the mere fact that a municipality acts within its
delegated authority is not sufficient to exclude its
anticompetitive behavior from the reach of the Sherman Act.
"Acceptance of such a proposition -- that the general grant of
power to enact ordinances necessarily implies state authorization
to enact specific anticompetitive ordinances -- would wholly
eviscerate the concepts of `clear articulation and affirmative
expression' that our precedents require." Community
Communications Co. v. Boulder, 455 U.S. 40, 56 (1982).

Accordingly, we have held that the critical decision to
substitute economic regulation for competition is one that must
be made by the State.  That decision must be articulated with
sufficient clarity to identify the industry in which the State
intends that economic regulation shall replace competition.  The
terse statement of the reason why the municipality's actions in
Hallie v. Eau Claire, 471 U. S. 34 (1985), was exempt from the
Sherman Act illustrates the point: "They were taken pursuant to a
clearly articulated state policy to replace competition in the
provision of sewage services with regulation." Id., at 47. {5}

III

Today the Court adopts a significant enlargement of the state
action exemption.  The South Carolina statutes that confer zoning
authority on municipalities in the State do not articulate any
state policy to displace competition with economic regulation in
any line of commerce or in any specific industry.  As the Court
notes, the state statutes were expressly adopted to promote the
"`health, safety, morals or the general welfare of the
community,'" see ante, at 4-5, n. 3.  Like Colorado's grant of
"home rule" powers to the city of Boulder, they are simply
neutral on the question whether the municipality should displace
competition with economic regulation in any industry.  There is
not even an arguable basis for concluding that the State
authorized the city of Columbia to enter into exclusive
agreements with any person, or to use the zoning power to protect
favored citizens from competition. {6} Nevertheless, under the
guise of acting pursuant to a state legislative grant to regulate
health, safety, and welfare, the city of Columbia in this case
enacted an ordinance that amounted to economic regulation of the
billboard market; as the Court recognizes, the ordinance
"obviously benefited COA, which already had its billboards in
place . . . [and] severely hindered Omni's ability to compete."
Ante, at 2.

Concededly, it is often difficult to differentiate economic
regulation from municipal regulation of health, safety, and
welfare.  "Social and safety regulation have economic impacts,
and economic regulation has social and safety effects." D.
Hjelmfelt, Antitrust and Regulated Industries 3 (1985).  It is
nevertheless important to determine when purported general
welfare regulation in fact constitutes economic regulation by its
purpose and effect of displacing competition.  "An example of
economic regulation which is disguised by another stated purpose
is the limitation of advertising by lawyers for the stated
purpose of protecting the public from incompetent lawyers.  Also,
economic regulation posing as safety regulation is often
encountered in the health care industry." Id., at 3-4.

In this case, the jury found that the city's ordinance --
ostensibly one promoting health, safety, and welfare -- was in
fact enacted pursuant to an agreement between city officials and
a private party to restrict competition.  In my opinion such a
finding necessarily leads to the conclusion that the city's
ordinance was fundamentally a form of economic regulation of the
billboard market rather than a general welfare regulation having
incidental anticompetitive effects.  Because I believe our cases
have wisely held that the decision to embark upon economic
regulation is a nondelegable one that must expressly be made by
the State in the context of a specific industry in order to
qualify for state action immunity, see, e.  g., Olsen v. Smith,
195 U. S. 332 (1904) (Texas pilotage statutes expressly regulated
both entry and rates in the Port of Galveston); Parker v. Brown,
317 U. S. 341 (1943) (California statute expressly authorized the
raisin market regulatory program), I would hold that the city of
Columbia's economic regulation of the billboard market pursuant
to a general state grant of zoning power is not exempt from
antitrust scrutiny. {7}

Underlying the Court's reluctance to find the city of Columbia's
enactment of the billboard ordinance pursuant to a private
agreement to constitute unauthorized economic regulation is the
Court's fear that subjecting the motivations and effects of
municipal action to antitrust scrutiny will result in public
decisionmaking being "made subject to ex post facto judicial
assessment of `the public interest.' " Ante, at 11.  That fear,
in turn, rests on the assumption that "it is both inevitable and
desirable that public officials often agree to do what one or
another group of private citizens urges upon them." Ante, at 9.

The Court's assumption that an agreement between private parties
and public officials is an "inevitable" precondition for official
action, however, is simply wrong. {8} Indeed, I am persuaded that
such agreements are the exception rather than the rule, and that
they are, and should be, disfavored.  The mere fact that an
official body adopts a position that is advocated by a private
lobbyist is plainly not sufficient to establish an agreement to
do so.  See Fisher v. Berkeley, 475 U. S. 260, 266-267 (1986);
cf. Theatre Enterprises, Inc. v. Paramount Film Distributing
Corp., 346 U.S.    537, 541 (1954).  Nevertheless, in many
circumstances, it would seem reasonable to infer -- as the jury
did in this case -- that the official action is the product of an
agreement intended to elevate particular private interests over
the general good.

In this case, the city took two separate actions that protected
the local monopolist from threatened competition.  It first
declared a moratorium on any new billboard construction, despite
the city attorney's advice that the city had no power to do so.
When the moratorium was invalidated in state court litigation, it
was replaced with an apparently valid ordinance that clearly had
the effect of creating formidable barriers to entry in the
billboard market.  Throughout the city's decisionmaking process
in enacting the various ordinances, undisputed evidence
demonstrated that Columbia Outdoor Advertising had met with city
officials privately as well as publicly.  As the Court of Appeals
noted: "Implicit in the jury verdict was a finding that the city
was not acting pursuant to the direction or purposes of the South
Carolina statutes but conspired solely to further COA's
commercial purposes to the detriment of competition in the
billboard industry." 891 F. 2d 1127, 1133 (CA4 1989).

Judges who are closer to the trial process than we are do not
share the Court's fear that juries are not capable of recognizing
the difference between independent municipal action and action
taken for the sole purpose of carrying out an anticompetitive
agreement for the private party. {9} See, e. g., In re Japanese
Electronic Products Antitrust Litigation, 631 F.  2d 1069, 1079
(CA3 1980) ("The law presumes that a jury will find facts and
reach a verdict by rational means.  It does not contemplate
scientific precision but does contemplate a resolution of each
issue on the basis of a fair and reasonable assessment of the
evidence and a fair and reasonable application of the relevant
legal rules").  Indeed, the problems inherent in determining
whether the actions of municipal officials are the product of an
illegal agreement are substantially the same as those arising in
cases in which the actions of business executives are subjected
to antitrust scrutiny. {10}

The difficulty of proving whether an agreement motivated a course
of conduct should not in itself intimidate this Court into
exempting those illegal agreements that are proven by convincing
evidence.  Rather, the Court should, if it must, attempt to deal
with these problems of proof as it has in the past -- through
heightened evidentiary standards rather than through judicial
expansion of exemptions from the Sherman Act.  See, e. g.,
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.
S. 574 (1986) (allowing summary judgment where evidence of a
predatory pricing conspiracy in violation of the Sherman Act was
founded largely upon circumstantial evidence); Monsanto Co. v.
Spray-Rite Service Corp., 465 U.S. 752, 768 (1984) (holding that
a plaintiff in a vertical price-fixing case must produce evidence
which "tends to exclude the possibility of independent action").

Unfortunately, the Court's decision today converts what should be
nothing more than an anticompetitive agreement undertaken by a
municipality that enjoys no special status in our federalist
system into a lawful exercise of public decisionmaking.  Although
the Court correctly applies principles of federalism in refusing
to find a "conspiracy exception" to the Parker state action
doctrine when a State acts in a nonproprietary capacity, it errs
in extending the state action exemption to municipalities that
enter into private anticompetitive agreements under the guise of
acting pursuant to a general state grant of authority to regulate
health, safety, and welfare.  Unlike the previous limitations
this Court has imposed on Congress' sweeping mandate in MDRV 1,
which found support in our common-law traditions or our system of
federalism, see n. 1, supra, the Court's wholesale exemption of
municipal action from antitrust scrutiny amounts to little more
than a bold and disturbing act of judicial legislation which
dramatically curtails the statutory prohibition against "every"
contract in restraint of trade. {11}

IV

Just as I am convinced that municipal "lawmaking that has been
infected by selfishly motivated agreement with private
interests," ante, at 17, is not authorized by a grant of zoning
authority, and therefore not within the state action exemption,
so am I persuaded that a private party's agreement with selfishly
motivated public officials is sufficient to remove the antitrust
immunity that protects private lobbying under Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127
(1961), and Mine Workers v. Pennington, 381 U. S. 657 (1965).
Although I agree that the "sham" exception to the Noerr-
Pennington rule exempting lobbying activities from the antitrust
laws does not apply to the private petitioner's conduct in this
case for the reasons stated by the Court in Part III of its
opinion, I am satisfied that the evidence in the record is
sufficient to support the jury's finding that a conspiracy
existed between the private party and the municipal officials in
this case so as to remove the private petitioner's conduct from
the scope of NoerrPennington antitrust immunity.  Accordingly, I
would affirm the judgment of the Court of Appeals as to both the
city of Columbia and Columbia Outdoor Advertising.

I respectfully dissent.


----------------------------------------------------------------
Note 1:

Construing the statute in the light of the common law concerning
contracts in restraint of trade, we have concluded that only
unreasonable restraints are prohibited.

"One problem presented by the language of MDRV 1 of the Sherman
Act is that it cannot mean what it says.  The statute says that
`every' contract that restrains trade is unlawful.  But, as Mr.
Justice Brandeis perceptively noted, restraint is the very
essence of every contract; read literally, MDRV 1 would outlaw
the entire body of private contract law.  Yet it is that body of
law that establishes the enforceability of commercial agreements
and enables competitive markets -- indeed, a competitive economy
-- to function effectively.

"Congress, however, did not intend the text of the Sherman Act to
delineate the full meaning of the statute or its application in
concrete situations.  The legislative history makes it perfectly
clear that it expected the courts to give shape to the statute's
broad mandate by drawing on common-law tradition.  The Rule of
Reason, with its origins in common-law precedents long antedating
the Sherman Act, has served that purpose. . . .  [The Rule of
Reason] focuses directly on the challenged restraint's impact on
competitive conditions." National Society of Professional
Engineers v. United States, 435 U. S. 679, 687-688 (1978)
(footnotes omitted).

We have also confined the Sherman Act's mandate by holding that
the independent actions of the sovereign States and their
officials are not covered by the language of the Act.  Parker v.
Brown, 317 U. S. 341 (1943).

Note 2:

The jury returned its verdict pursuant to the following
instructions given by the District Court:

"So if by the evidence you find that that person involved in this
case procured and brought about the passage of ordinances solely
for the purpose of hindering, delaying or otherwise interfering
with the access of the Plaintiff to the marketing area involved
in this case . . . and thereby conspired, then, of course, their
conduct would not be excused under the antitrust laws.

"So once again an entity may engage in . . . legitimate
lobbying . . .  to procure legislati[on] even if the motive
behind the lobbying is anti competitive.

"If you find Defendants conspired together with the intent to
foreclose the Plaintiff from meaningful access to a legitimate
decision making process with regard to the ordinances in
question, then your verdict would be for the Plaintiff on that
issue." App. 81.

Note 3:

"The Sherman Act reflects a legislative judgment that ultimately
competition will produce not only lower prices, but also better
goods and services.  `The heart of our national economic policy
long has been faith in the value of competition.' Standard Oil
Co. v. FTC, 340 U. S. 231, 248.  The assumption that competition
is the best method of allocating resources in a free market
recognizes that all elements of a bargain -- quality, service,
safety, and durability -- and not just the immediate cost, are
favorably affected by the free opportunity to select among
alternative offers.  Even assuming occasional exceptions to the
presumed consequences of competition, the statutory policy
precludes inquiry into the question whether competition is good
or bad." National Society of Professional Engineers, 435 U. S.,
at 695.

Note 4:

In Owen v. City of Independence, 445 U. S. 622 (1980), this Court
recognized that "notwithstanding [42 U. S. C.] MDRV 1983's
expansive language and absence of any express incorporation of
common-law immunities, we have, on several occasions, found that
a tradition of immunity was so firmly rooted in the common law
and was supported by such strong policy reasons that `Congress
would have specifically so provided had it wished to abolish the
doctrine.' Pierson v. Ray, 386 U. S. 547, 555 (1967)." Id., at
637.  Nevertheless, the Court refused to find a firmly
established immunity enjoyed by municipal corporations at common
law for the torts of their agents.  "Where the immunity claimed
by the defendant was well established at common law at the time
[42 U. S. C.] MDRV 1983 was enacted, and where its rationale was
compatible with the purposes of the Civil Rights Act, we have
construed the statute to incorporate that immunity.  But there is
no tradition of immunity for municipal corporations, and neither
history nor policy supports a construction of MDRV 1983 that
would justify" according them such immunity.  Id., at 638.  See
also Will v.  Michigan Dept. of State Police, 491 U. S. 58, 70
(1989) ("States are protected by the Eleventh Amendment while
municipalities are not . . .").

Note 5:

Contrary to the Court's reading of Hallie, our opinion in that
case emphasized the industry-specific character of the Wisconsin
legislation in explaining why the delegation satisfied the `clear
articulation' requirement.  At issue in Hallie was the town's
independent decision to refuse to provide sewage treatment
services to nearby towns -- a decision that had been expressly
authorized by the Wisconsin legislation.  471 U.  S., at 41.  We
wrote:

"Applying the analysis of Lafayette v. Louisiana Power & Light
Co., 435 U.S.    389 (1978), it is sufficient that the statutes
authorized the City to provide sewage services and also to
determine the areas to be served." Id., at 42.

"Nor do we agree with the Towns' contention that the statutes at
issue here are neutral on state policy.  The Towns' attempt to
liken the Wisconsin statutes to the Home Rule Amendment involved
in Boulder, arguing that the Wisconsin statutes are neutral
because they leave the City free to pursue either anticompetitive
conduct or free-market competition in the field of sewage
services.  The analogy to the Home Rule Amendment involved in
Boulder is inapposite.  That Amendment to the Colorado
Constitution allocated only the most general authority to
municipalities to govern local affairs.  We held that it was
neutral and did not satisfy the `clear articulation' component of
the state action test.  The Amendment simply did not address the
regulation of cable television.  Under home rule the municipality
was to be free to decide every aspect of policy relating to cable
television, as well as policy relating to any other field of
regulation of local concern.  Here, in contrast, the State has
specifically authorized Wisconsin cities to provide sewage
services and has delegated to the cities the express authority to
take action that foreseeably will result in anticompetitive
effects.  No reasonable argument can be made that these statutes
are neutral in the same way that Colorado's Home Rule Amendment
was." Id., at 43.

We rejected the argument that the delegation was insufficient
because it did not expressly mention the foreseeable
anticompetitive consequences of the city of Eau Claire's conduct,
but we surely did not hold that the mere fact that incidental
anticompetitive consequences are foreseeable is sufficient to
immunize otherwise unauthorized restrictive agreements between
cities and private parties.

Note 6:

The authority to regulate the " `location, height, bulk, number
of stories and size of buildings and other structures,' " see
ante, at 5, n. 3 (citation omitted), may of course have an
indirect effect on the total output in the billboard industry,
see ante, at 7, n. 4, as well as on a number of other industries,
but the Court surely misreads our cases when it implies that a
general grant of zoning power represents a clearly articulated
decision to authorize municipalities to enter into agreements to
displace competition in every industry that is affected by zoning
regulation.

Note 7:

A number of Courts of Appeals have held that a municipality which
exercises its zoning power to further a private agreement to
restrain trade is not entitled to state action immunity.  See, e.
g., Westborough Mall, Inc. v. Cape Girardeau, 693 F. 2d 733, 746
(CA8 1982) ("Even if zoning in general can be characterized as
`state action,' . . . a conspiracy to thwart normal zoning
procedures and to directly injure the plaintiffs by illegally
depriving them of their property is not in furtherance of any
clearly articulated state policy"); Whitworth v. Perkins, 559 F.
2d 378, 379 (CA5 1977) ("The mere presence of the zoning
ordinance does not necessarily insulate the defendants from
antitrust liability where, as here, the plaintiff asserts that
the enactment of the ordinance was itself a part of the alleged
conspiracy to restrain trade").

Note 8:

No such agreement was involved in Hallie v. Eau Claire, 471 U. S.
34 (1985).  In that case the plaintiffs challenged independent
action -- the determination of the service area of the city's
sewage system -- that had been expressly authorized by Wisconsin
legislation.  The absence of any such agreement provided the
basis for our decision in Fisher v. Berkeley, 475 U. S. 260, 266-
267 (1986) ("[t]he distinction between unilateral and concerted
action is critical here . . . [t]hus, if the Berkeley Ordinance
stabilizes rents without this element of concerted action, the
program it establishes cannot run afoul of MDRV 1").

Note 9:

The instructions in this case, fairly read, told the jury that
the plaintiff should not prevail unless the ordinance was enacted
for the sole purpose of interfering with access to the market.
See supra, at 3, n. 2.  Thus, this case is an example of one of
the "polar extremes," see ante, at 9, n. 5, that juries -- as
well as Solomon -- can readily identify.  The mixed motive cases
that concern the Court should present no problem if juries are
given instructions comparable to those given below.  When the
Court describes my position as assuming that municipal action
that was not prompted "exclusively by a concern for the general
public interest" is enough to create antitrust liability, ibid.,
it simply ignores the requirement that the plaintiff must prove
that the municipal action is the product of an anticompetitive
agreement with private parties.  Contrary to our square holding
in Fisher v. Berkeley, 475 U. S. 260 (1986), today the Court
seems to assume that municipal action which is not entirely
immune from antitrust scrutiny will automatically violate the
antitrust laws.

Note 10:

"There are many obstacles to discovering conspiracies, but the
most frequent difficulties are three.  First, price-fixers and
similar miscreants seldom admit their conspiracy or agree in the
open.  Often, we can infer the agreement only from their
behavior.  Second, behavior can sometimes be coordinated without
any communication or other observable and reprehensible behavior.
Third, the causal connection between an observable, controllable
act -- such as a solicitation or meeting -- and subsequent
parallel action may be obscure." 6 P. Areeda, Antitrust Law MDRV
1400, at 3-4 (1986).

See also Turner, The Definition of Agreement under the Sherman
Act:  Conscious Parallelism and Refusals to Deal, 75 Harv. L.
Rev. 655 (1962) (discussing difficulties of condemning parallel
anticompetitive action absent explicit agreement among the
parties).

Note 11:

As the Court previously has noted:

"In 1972, there were 62,437 different units of local government
in this country.  Of this number 23,885 were special districts
which had a defined goal or goals for the provision of one or
several services, while the remaining 38,552 represented the
number of counties, municipalities, and townships, most of which
have broad authority for general governance subject to
limitations in one way or another imposed by the State.  These
units may, and do, participate in and affect the economic life of
this Nation in a great number and variety of ways.  When these
bodies act as owners and providers of services, they are fully
capable of aggrandizing other economic units with which they
interrelate, with the potential of serious distortion of the
rational and efficient allocation of resources, and the
efficiency of free markets which the regime of competition
embodied in the antitrust laws is thought to engender." Lafayette
v. Louisiana Power & Light Co., 435 U. S. 389, 407-408 (1978)
(footnotes omitted).