dissenting:
Today the majority holds that the so-called “nonstatutory labor exemption” totally immunizes employers from antitrust liability when they unilaterally impose industry-wide terms of employment, in restraint of competition in the labor market, so long as the employers have previously engaged in unsuccessful collective bargaining with their employees over those issues. In so holding, the majority decides that employees who exercise their statutory rights to bargain collectively automatically forfeit antitrust rights to which they otherwise would be entitled. Thus, employees must now choose between foregoing collective bargaining altogether, thereby retaining antitrust protection against employer restraints on the labor market; or engaging in collective bargaining at the risk of forfeiting all antitrust remedies if bargaining fails and the employers unilaterally foist unagreed-to industry-wide terms upon them.
The majority insists its ruling does no more than maintain a level playing field in employer-employee relations and carry out the congressional mandate favoring collective bargaining as the primary means of resolving labor disputes. I do not think so. The *1059reality is that today’s decision sharply tilts the playing field in employers’ favor, and because of that, will erode the vitality of collective bargaining itself. The rule announced today gives multiemployer groups both renewed incentives and unprecedented power to impose industry-wide terms of employment regardless of union consent and without fear of antitrust liability. Multiem-ployer groups will enjoy new freedom to harden bargaining positions, secure that if the employees do not submit at the bargaining table, the employers may impose their negotiating proposals after bargaining has irretrievably stalled. Employees in a weak bargaining position will likely opt in favor of clinging to antitrust protection as the less risky course of action; these employees will henceforth have powerful incentives not to engage in collective bargaining at all, since any collective bargaining opens the door to employer imposition of labor market restraints if bargaining fails. It could in extreme cases drive employees to decertify their unions, as the only guarantee against threats by multiemployer groups to unilaterally impose industry-wide wage caps and unacceptable working conditions.
All this suggests less, not more, collective bargaining and fewer, not more, successfully negotiated collective bargaining agreements. The majority decision thus poses a threat to the central purpose of our labor laws of promoting collective bargaining as the primary vehicle for ensuring labor peace. This result neither harmonizes labor law with antitrust law, nor comports with the congressional design of our statutory labor law regime.
I. APPLICABILITY OF ANTITRUST LAWS TO Restraints on the Labor Market
Absent special statutory or judge-made exemption, a multiemployer agreement unilaterally imposing uniform industry-wide terms of employment, and thereby restraining competition in the labor market, runs afoul of the antitrust laws.1 Concededly, employer-imposed restraints on the labor market are most prominent in professional sports. Employers in other fields generally favor open competition in the labor market, believing that, in the absence of chronic labor shortages, competition for jobs will generally hold down wages and produce higher quality and better motivated workers. Historically, restraints on competition in the labor market have originated in employees’ attempts to counter this downward pressure on wages through collective bargaining agreements fixing uniform wages and terms of employment. In professional sports, however, the situation is reversed. Because top-level athletic talent is scarce, competition tends to drive salaries up, at least for the top performers. Thus professional athletes have sought to maximize competition among employers for their unique athletic skills.2 Predictably, the owners have reacted with multiemployer efforts to restrain competition for professional athletes’ services.3 See, e.g., Flood v. Kuhn, 407 *1060U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972) (baseball “reserve clause”); Mackey v. NFL, 543 F.2d 606 (8th Cir.1976) (football “Rozelle rule” limiting player mobility); Smith v. Pro-Football, Inc., 420 F.Supp. 738 (D.D.C.1976) (football player draft), aff'd in part & rev’d in part, 593 F.2d 1173 (D.C.Cir.1978); McCourt v. California Sports, Inc., 600 F.2d 1193 (6th Cir.1979) (hockey reserve system); Bridgeman v. National Basketball Ass’n, 675 F.Supp. 960 (D.N.J.1987) (basketball draft, salary cap, and right of first refusal).
Nonetheless, it is important to remember that multiemployer labor market restraints are not entirely confined to professional sports, so that today’s majority rule has implications beyond the football gridiron. In Anderson v. Shipowners’ Ass’n, 272 U.S. 359, 47 S.Ct. 125, 71 L.Ed. 298 (1926), the Supreme Court held that an industry-wide agreement setting uniform terms and conditions of employment for seamen was subject to antitrust scrutiny. Lower courts have similarly recognized that the antitrust laws presumptively apply to employer-imposed restraints on labor markets. See, e.g., Ostrofe v. H.S. Crocker Co., Inc., 740 F.2d 739, 742-43 (9th Cir.1984) (multiemployer agreement not to hire “whistleblowers”); Hennessey v. NCAA, 564 F.2d 1136, 1147-51 (5th Cir.1977) (multicollege agreement to limit employment of athletic coaches); Newberger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1082 (2d Cir.1977) (employee noncompetition clauses), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Quinonez v. National Ass’n of Sec. Dealers, Inc., 540 F.2d 824, 827-28 (5th Cir.1976) (multiemployer blacklisting agreement); Nichols v. Spencer International Press, 371 F.2d 332, 334 (7th Cir.1967) (multiemployer “non-switching” agreement restricting mobility of employees); Cordova v. Bache & Co., 321 F.Supp. 600 (S.D.N.Y.1970) (multiemployer action to reduce compensation paid to securities brokers), later opinion sub nom. Jacobi v. Bache & Co., 377 F.Supp. 86 (S.D.N.Y.1974), aff'd, 520 F.2d 1231 (2d Cir.1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 784, 46 L.Ed.2d 642 (1976). See also Gardella v. Chandler, 172 F.2d 402, 408 (2d Cir.1949) (L. Hand, J.) (“[W]hatever other conduct the [antitrust] Acts may forbid, they certainly forbid all restraints of trade which were unlawful at commonlaw, and one of the oldest and best established of these is a contract which unreasonably forbids anyone to practice his calling.”).
Admittedly, a few commentators have suggested that antitrust laws should not apply to restraints on labor markets. See, e.g., Archibald Cox, Labor and the Antitrust Laws — A Preliminary Analysis, 104 U.PaL.Rev. 252, 254-55 (1954); Milton Handler, Labor and Antitrust: A Bit of History, 40 Antitrust L.J. 233, 235 (1971); Theodore J. St. Antoine, Connell: Antitrust Law at the Expense of Labor Law, 62 Va.L.Rev. 603, 606 (1976). They argue that, despite the broad language of the antitrust statutes prohibiting every restraint on trade, the central purpose of the antitrust laws is not to promote competition per se, but to protect consumers from anti-competitive practices. See generally Robert Bork, The ANtitrust Paradox (1978). Thus if an anticompetitive restraint affects only input markets, e.g., labor, and not output markets, e.g., products, it should not be subject to antitrust scrutiny. See, e.g., Elinor R. Hoffmann, Labor and Antitrust Policy: Drawing a Line of Demarcation, 50 BROOKLYN L.Rev. 1 (1983) (tracing distinction between input and output markets to legislative history of Sherman Act).
It is, however, not possible to square this minority view with the development of our antitrust jurisprudence. See II Phillip Ar-eeda & Donald F. Turner, Antitrust Law ¶¶ 338b & 338c (1978) (employer agreements restricting the labor market are subject to antitrust liability); James M. Altman, Antitrust: A New Tool for Organized Labor?, 131 U.PaL.Rev. 127 (1982) (reviewing cases *1061and common law antecedents, concluding that employer restraints on labor markets are subject to antitrust laws). The Supreme Court has clearly held that antitrust laws apply not only to restraints on output markets, but to input markets as well, including both labor, Anderson, supra; Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), and input commodities, e.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 1006, 92 L.Ed. 1328 (1948) (sugar refiners’ agreement to fix input prices paid for sugar beets violates Sherman Act, which “does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers” but instead “is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated”). See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940) (Sherman Act prohibits any “combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity” and agreements to make “purchases [of inputs] at or under the market are one species of [unlawful] price-fixing”); American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946) (applying antitrust law to restraints on input market for tobacco as well as output market for tobacco products); Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905) (same, for livestock inputs and meat outputs). Cf. National Macaroni Mfr’s Ass’n v. Federal Trade Comm’n, 345 F.2d 421, 426 (7th Cir.1965) (purpose and effect of agreement to fix composition of macaroni product was to depress input price of semolina, thereby violating Sherman Act).
Economists too have long recognized that market inefficiencies created by anticompetitive restraints on input markets can be as destructive of a free market economy (and therefore ultimately damaging to consumers) as restraints on output markets. See, e.g., Roger D. Blair & Jeffrey L. Harrison, Monopsony 36-43 (1993); see also Mandeville Farms, 334 U.S. at 241-44, 68 S.Ct. at 1008-10 (describing how restraints on input market adversely affect output market). While antitrust prosecutions for restraints on input markets are relatively rare, this is explained by the fact that restraints on input markets arise only in the unusual circumstance of an effective monopsony — a single purchaser, or a group of purchasers acting in concert. And monopsony in turn arises only when the resource is uniquely valuable in its current use, so that even if the price is depressed by monopsony, sellers are unable to find alternative buyers. Riohard A. Posner & Frank H. Easterbrook, Antitrust 150 (1981) (monopsony can arise when “resources hav[e] substantially greater value in some uses than in others” so the “sole purchaser ... will ... be able to force the [seller] ... to accept a monopsony price”); Blair & Harrison, supra, at 43-44 (inelasticity of supply facilitates collusive monopsony). Thus, for example, in the Mandeville Island Farms case, the sugar refiners’ monopsonistic price-fixing scheme was effective because growers could not easily find other buyers or profitably switch to other crops when refiners conspired to fix the price of sugar beets. See 334 U.S. at 240-42, 68 S.Ct. at 1008-09. Nonetheless, according to the economists, there is a dead-weight loss associated with imposition of monopsony pricing restraints. Some producers will either produce less or cease production altogether, resulting in less-than-optimal output of the product or service, and over the long run higher consumer prices, reduced product quality, or substitution of less efficient alternative products. See, e.g., Herbert Hovenkamp, ECONOMICS and Federal Antitrust Law § 1.2, at 17-18 (1985); Blair & Harrison, supra, at 42-43, 72. So, even proceeding from the premise that antitrust laws aim only at protecting consumers, monopsonies fall under antitrust purview because monopsonistic practices will eventually adversely affect consumers.
Athletic prowess is, of course, a unique and highly specialized resource, of precisely the genre vulnerable to monopsony manipulation. With a few notable exceptions, athletes typically excel in a single sport, and their labor has greater market value in that sport than in any other profession. If team owners join together to suppress the price of athletic services through monopsony practices, most athletes will not be able to switch profitably to other lines of work. Thus, the labor mar*1062ket for professional athletes’ services is one of a very few areas where there is real potential for anticompetitive monopsonistic practices. Blair & HARRISON, supra, at 72. Economic theory tells us, however, that mon-opsony will diminish output over time. Because some talented athletes will switch to other sports or other professions, or decide not to enter the field, the overall quality of athletic performance in the sport will then decline, to the detriment of consumers. Thus, both legal precedent and economic theory instruct that — absent some special exemption — antitrust principles do and should apply to such monopsonistic practices. As the majority acknowledges, Maj. op. at 1055, professional athletes presumptively have antitrust protection against monopsonistic restraints on the market for their services,4 as long as they forego collective bargaining with their employers.
In sum, antitrust law has a significant role to play as an antidote to anticompetitive restraints on labor markets. That role should be ousted only as necessary to implement clear congressional directives.
II. The Statutory and Nonstatutory Exemptions
Our next inquiry is whether any special exemption — statutory or judge-made — applies to immunize labor market restraints from expected antitrust scrutiny. In resolving this question, we are informed by the familiar nostrum that “exemptions from the antitrust laws are to be narrowly construed,” Group Life & Health Insurance Co. v. Royal Drag Co., 440 U.S. 205, 231, 99 S.Ct. 1067, 1083, 59 L.Ed.2d 261 (1979). This principle applies equally to express and implied exemptions. Id. Implied exemptions to the “fundamental national policies embodied in the antitrust laws,” Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 733, 93 S.Ct. 1773, 1779, 36 L.Ed.2d 620 (1973), in particular, should be found “only if necessary to make the [conflicting statutory scheme] work, and even then only to the minimum extent necessary,” Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963).
The so-called statutory labor exemption is clearly inapplicable here. The “statutory exemption” is embraced in two enactments: sections 6 and 20 of the Clayton Act, 15 U.S.C. § 17 and 29 U.S.C. § 52, enacted in 1914, exempting unions from coverage of the Sherman Act and prohibiting the issuance of injunctions against specified labor activities; and sections 1 through 15 of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, enacted in 1932, barring federal courts from enjoining certain other specified union activities. “These statutes declare that labor unions are not combinations or conspiracies in restraint of trade, and exempt specific union activities, including secondary picketing and boycotts, from the operation of the antitrust laws.” Connell Constr. Co., Inc. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616, 621-22, 95 S.Ct. 1830, 1835, 44 L.Ed.2d 418 (1975). The statutory labor exemption thus shields unions and specified union activities. H.A. Artists & Assocs. v. Actors’ Equity Ass’n, 451 U.S. 704, 713-15, 101 S.Ct. 2102, 2108-09, 68 L.Ed.2d 558 (1981). Section 4(b) of the Norris-LaGuardia Act, however, does bar injunctions against “any person or persons participating in or interested in [a labor] dispute ... [b]ecoming or remaining a member of ... any employer organization_” 29 U.S.C. § 104(b) (emphasis added). Thus, the statutory exemption appears to immunize membership in a multiemployer bargaining unit. See California State Council of Carpenters v. Associated Gen’l Contractors, 648 F.2d 527, 544-45 (9th Cir.1980), rev’d on other grounds, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). But beyond bare membership, the Clayton and Norris-LaGuardia Acts do not identify any protected class of multiemployer conduct. This is in marked contrast to their detailed specifications of protected union and employee conduct. Id. at 534-36. The multiemployer conduct at issue in this case therefore falls beyond the narrow scope of any statutory labor exemption.
The only other possible source of exemption from the antitrust statutes is the non-*1063statutory labor exemption, a judicially-created doctrine that attempts to harmonize the potentially inconsistent requirements of labor law and antitrust law. “The nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions.” Connell, 421 U.S. at 622, 95 S.Ct. at 1835. Because the exercise of labor law rights and duties — generally encouraging collective action — may be inconsistent with prohibitions on concerted action of any kind under the antitrust laws, courts have carved out an implied exemption to antitrust coverage. Courts presume that Congress implicitly intended to exempt from antitrust scrutiny those concerted activities explicitly authorized by labor laws that are essential to collective bargaining. The prime example is the ordinary collective bargaining agreement. Although no statutory exemption shields such agreements from antitrust scrutiny, the collective bargaining scheme established by the national labor laws would be mortally undercut if collective bargaining agreements were subject to collateral attack under the antitrust laws as “combinations in restraint of trade.” See Local No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea Co., Inc., 381 U.S. 676, 689, 85 S.Ct. 1596, 1601-02, 14 L.Ed.2d 640 (1965) (Opinion of White, J.) (“Employers and unions are required to bargain about wages, hours, and working conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on these subjects.”); id. 381 U.S. at 711-12 (Opinion of Goldberg, J.) (“To tell the parties that they must bargain about a point but may be subject to antitrust penalties if they reach an agreement is to stultify the congressional scheme.”).
The few cases in which the Supreme Court has addressed the nonstatutory labor exemption involved employer-employee agreements which also had discernible anticompetitive effects on product output markets. See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (exemption does not apply to agreement to impose uniform industry-wide terms on employers not party to the agreement); Jewel Tea, 381 U.S. at 676 (exemption applies to agreement limiting marketing hours despite ancillary anticompetitive effect on product market, where restraint is tailored to protect direct interests of bargaining unit members); Connell, 421 U.S. at 635, 95 S.Ct. at 1841 (exemption does not apply to agreement barring subcontracting to nonunion subcontractors). As the majority accurately notes, several of these cases held the non-statutory exemption inapplicable when its primary purpose or effect was to restrain product output markets. Maj. op. at 1050-51. But nothing in these cases supports the majority’s reverse contention that antitrust law is totally unconcerned with labor markets once collective bargaining has been undertaken but failed to resolve the dispute. In truth, Supreme Court precedent is wholly inconclusive as to whether the nonstatutory labor exemption embraces anything like the unilateral employer-imposed labor market restraints at issue here. At best, the relevant Supreme Court cases establish only that there is a nonstatutory labor exemption, and that its umbrella protects at least some employer-employee agreements, while others, i.e., those whose primary purpose or effect is to restrain product output markets, are not immune.
Two sister circuits have recently adopted expanded interpretations of the nonstatutory labor exemption to cover post-impasse situations similar to the one here. See National Basketball Association v. Williams, 45 F.3d 684 (2d Cir.1995); Wood v. National Basketball Ass’n, 809 F.2d 954 (2d Cir.1987); Powell v. National Football League, 930 F.2d 1293 (8th Cir.1989), cert. denied, 498 U.S. 1040, 111 S.Ct. 711, 112 L.Ed.2d 700 (1991). But other courts have refused to extend it beyond employer-employee agreements. See e.g., McCourt, 600 F.2d at 1197-98; Bridgeman, 675 F.Supp. at 964-65; Smith, 420 F.Supp. at 741-42.
Precedent is of limited assistance, then, in deciding whether to extend the nonstatutory exemption doctrine to the situation at hand. Striking the appropriate balance requires us to go further and examine the underlying policies and principles of both labor law and antitrust law, effecting “a proper accommodation between the congressional policy favoring collective bargaining under the NLRA *1064and the congressional policy favoring free competition in business markets,” Connell, 421 U.S. at 622, 95 S.Ct. at 1835.
The majority presses a deceptively simple solution: whenever antitrust coverage potentially overlaps with activities authorized by labor law, and only the labor market is affected by the challenged restraint, antitrust law must give way. The majority’s is a bright-line rule, no mistake. Additionally, it keeps federal courts out of messy labor-management disputes. There is much to be said for the twin virtues of economy and elegance, but they may be purchased at too high a price — in this case the substantial interests of players and fans in guarding against uncontrolled labor market restraints. Over the long haul, the majority’s approach will not serve the interests of labor law by promoting collective bargaining. And it certainly will not comport with our judicial duty to carve out only the narrowest antitrust exemption compatible with the effective implementation of the labor laws.
III. Maintaining the Employeü-Employee Bauanoe
The majority insists its rule granting employers an antitrust exemption for terms unilaterally imposed after a bargaining impasse is required so that employers can engage in hard bargaining as permitted by the labor laws, and thereby “preserve the delicate balance of countervailing power,” Maj. op. at 1052, that is necessary to keep unions from gaining the upper hand. The majority rightly points out that the labor laws contemplate a system of countervailing economic pressure between employers and employees, under which both sides have incentives to bargain. See Julius G. Getman, The Protection of Economic Pressure by Section 7 of the NLRA, 115 U.Pa.L.Rev. 1195, 1196 (1967). But we must also be mindful that “a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management ... by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers.” American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316, 85 S.Ct. 955, 966, 13 L.Ed.2d 855 (1965) (emphasis added). Once Congress established this scheme, it contemplated that neither the courts nor the National Labor Relations Board would intervene on a case-by-case basis to adjust the parties’ relative bargaining power, but rather leave them to fight it out at the bargaining table. American Ship Bldg., 380 U.S. at 317-18, 85 S.Ct. at 966-67; NLRB v. Insurance Agents Int'l Union, 361 U.S. 477, 497-500, 80 S.Ct. 419, 431-33, 4 L.Ed.2d 454 (1960). Of course, Congress itself from time to time adjusts the balance, as it did in enacting the Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1957, further limiting union conduct. Insurance Agents, 361 U.S. at 500, 80 S.Ct. at 433.
In my view, the majority’s rule does much more than “preserve the delicate balance” in labor-management relations already established by labor law. It decisively tips the balance by giving employers important new rights, together with new incentives to harden their bargaining positions. Because employers can now unilaterally impose labor market restraints that heretofore might have exposed them to antitrust Lability,5 the majority’s rule provides new incentives to raise the stakes in bargaining in hope of winning industry-wide labor market restraints that might never before have been attempted. It also encourages employer groups to hang tough on their demands, since at impasse they may be able to impose any bargaining proposals the employees have rejected without fear of antitrust liability. The majority’s rule does not just protect hard bargaining; it positively encourages it. It makes impasse more likely and successful collective bargaining less likely.6
*1065On the employees’ side, the majority’s rule also creates new incentives, none of them helpful to the bargaining process. First, some employees — especially those in a weak bargaining position — are under pressure not to enter into collective bargaining at all, lest the existence of a bargaining relationship license unilateral employer imposition of anti-competitive terms. See Lee Goldman, The Labor Exemption to the Antitrust Laws as Applied to Employers’ Labor Marked Restraints in Sports and Non-sports Markets, 1989 Utah L.Rev. 617, 658-59 (describing disincentives to collective bargaining if unilaterally-imposed terms are exempt from antitrust coverage). Second, as the majority recognizes, Maj. op. at 1057, some employees will be encouraged to decertify their unions rather than risk unilateral multiemployer imposition of terms at impasse. See also Goldman, supra, at 658-59. Such a consequence is not mere speculation, but represents the actual upshot of the Eighth Circuit’s decision in Powell upholding a broad nonstatutory labor exemption like that of the majority here. Faced with anticompetitive industry-wide terms forced upon them without their consent, the players in Powell promptly responded by terminating union representation. See Powell v. National Football League, 764 F.Supp. 1351 (D.Minn.1991) (recognizing termination of nonstatutory labor exemption when NFL players voted to end union representation in response to Powell decision); The Five Smiths, Inc., et al. v. National Football League Players Ass’n, No. Civ. 3-90-177 (D.Minn., filed Mar. 30, 1990) (suit by NFL seeking judicial invalidation of players’ union decertification). New incentives for employees not to engage in collective bargaining — and the bizarre prospect of employers attempting to force employees to remain in a union so as to preserve the employers’ valuable antitrust exemption— run directly contrary to the overarching purpose of the labor laws to encourage bona fide collective bargaining.
The majority seems to suggest that because the labor laws mandate a process and not an agreement, Maj. op. at 1051, 1052, we should not be concerned if the rule ends up encouraging more nonagreements than agreements. I do not see how they can be right. “The basic theme of ... [the National Labor Relations] Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement.” H.K. Porter Co. v. NLRB, 397 U.S. 99, 103, 90 S.Ct. 821, 823, 25 L.Ed.2d 146 (1970). A rule that ousts antitrust law only to encourage fewer collective bargaining agreements seems contrary to the purposes of both the labor laws and the antitrust laws.
The majority’s rule also creates new as-symetries in bargaining relationships still in effect. Employers, now shielded from antitrust liability, can unilaterally impose terms restraining the labor market, while employees have no such capability because unions do not hold sufficient economic power to unilaterally force terms on unwilling employers. See Archibald Cox, The Duty to Bargain in Good Faith, 71 Hakv.L.Rev. 1401, 1424 (1958). Prior to today’s ruling, employers and employees could jointly agree to restraints on the labor market through collective bargaining agreements, and those restraints would be free from antitrust scrutiny. In that limited sense, employees had the right to bargain away (or waive) their antitrust protection, but always with the prospect of getting something in return. Employers could also acquire antitrust immunity for labor market restraints through the quid pro quo of collective bargaining. But today’s ruling “effectively gives the party benefitting *1066from a potentially anticompetitive restraint [i.e., employers] ... the benefit of the antitrust exemption without having to pay for it” through concessions at the bargaining table, Brief of the United States as Amicus Curiae Opposing Certiorari in NFL v. Powell (“Amicus br”), at 15. The symmetry, mutuality, and give-and-take that lie at the heart of the bargaining process are irretrievably lost.
Under the majority’s rule it is clear that a multiemployer agreement setting industry-wide uniform terms of employment in a single industry — precisely what was prohibited in Anderson v. Shipowners’Ass’n —would be exempt from antitrust scrutiny, provided the employers first proposed the scheme in collective bargaining and implemented it after impasse. Until today, the shipowners could immunize those industry-wide terms from antitrust scrutiny only through a collective bargaining agreement; after today, the shipowners need give nothing up in order to get around the antitrust roadblock. Rather than being in a position to demand a quid pro quo for their assent to the employers’ proposed terms, the employees must now either strike or make concessions to prevent the employers from doing what the antitrust laws would have previously deterred them from doing. The employers thus enter collective bargaining in a stronger position, and the employees enter in a commensurately weaker position. Although strong unions may still be able to successfully fend off employers’ unilateral imposition of terms, even the strongest unions are left in a weaker bargaining position after today’s ruling. See Goldman, supra, at 661.
In the end, the wide open field given employers by so broad an exemption from antitrust laws cannot be justified by any rationale based on the requirements of collective bargaining.
IV. “TERMS” Versus “Tactics”
The majority’s analysis goes astray, I believe, by relying on a too-facile equation of terms of employment that restrain the labor market and are unilaterally imposed by employers at impasse, with “bargaining tactics,” “hard bargaining,” and the “economic weapons” used by each side in jockeying for position at the bargaining table. Unilaterally-imposed terms are not mere bargaining tactics. See Goldman, supra, at 682-83 (distinguishing bargaining “tactics” from unilaterally-imposed “terms” and urging nonstatutory exemption for “tactics” but not for “terms”); Leonard L. Scheinholtz & Kenneth C. Kettering, Exemption Under the Antitrust Laws for Joint Employer Activity, 21 Duquesne L.Rev. 347, 354 (1983) (distinguishing multiemployer bargaining “tactics” from “terms”). It is true, of course, that “the use of economic pressure by the parties to a labor dispute is ... part and parcel of the process of collective bargaining,” Insurance Agents’, 361 U.S. at 495, 80 S.Ct. at 430, and the Supreme Court itself has suggested that post-impasse unilateral imposition of terms may qualify as an economic pressure tactic, see American Ship Bldg., 380 U.S. at 316, 85 S.Ct. at 966 (dicta). Still, the statutory structure of the National Labor Relations Act and the logic of collective bargaining suggest that an employer’s right to unilaterally impose terms after impasse is best understood not as a “bargaining tactic” but as part of the employer’s residual right to continue operating as dictated by business necessity once her statutory duty to bargain has been exhausted, see NLRB v. Tex-Tan, Inc., 318 F.2d 472, 480-81 & n. 20 (5th Cir.1963). Prior to enactment of the NLRA (and even today outside the collective bargaining context), employers remained free to unilaterally impose new terms of employment at any time; but those unilaterally-imposed terms were subject to antitrust scrutiny. The NLRA, however, restricts an employer’s freedom to unilaterally impose terms. The employer’s central duty under § 8(a)(5) of the NLRA is to bargain in good faith over mandatory subjects of bargaining. See Milton Handler & William C. Zifchak, Collective Bargaining and the Antitrust Laws: The Emasculation of the Labor Exemption, 81 ColumL.Rev. 459, 500 (1981). To give substance to that obligation, § 8(a)(5) has been interpreted to prohibit an employer from unilaterally imposing at impasse new terms not previously submitted to collective bargaining and rejected by the union, for to do so “is necessarily inconsistent with a sincere desire to conclude a[ ] [collective bargaining] agreement,” NLRB v. Katz, 369 U.S. 736, 745, 82 S.Ct. 1107, 1112, 8 L.Ed.2d 230 (1962). *1067Moreover, because unilateral imposition of new terms during bargaining “tends to subvert the union’s position as the representative of the employees,” Insurance Agents’, 361 U.S. at 485, 80 S.Ct. at 425, the employer must observe the status quo while bargaining continues. But after impasse, the employer is free to unilaterally impose terms reasonably encompassed in bargaining proposals already rejected by the union, Katz, 369 U.S. at 745, 82 S.Ct. at 1112, because at that point the employer has exhausted its statutory duty to bargain, Taft Broadcasting, 163 N.L.R.B. 475, 478 (1967), (“[A]fter bargaining to impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals”) (emphasis added), petition for review denied sub. nom. American Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C.Cir.1968) (“AFTRA ”); AFTRA 395 F.2d at 628; NLRB v. McClatchey Newspapers, Inc., 964 F.2d 1153, 1157 (D.C.Cir.1992) (at impasse, “the duty to bargain is at least temporarily suspended, and the parties, typically the employer, may enact any change in a mandatory subject [of bargaining] reasonably contained within its final proposal”).
Why then is it necessary, or even helpful in advancing the collective bargaining process, to grant additional antitrust immunity to terms unilaterally imposed by the employer as part of his residual right to conduct his business, after he has been relieved of his statutory duty to bargain? I should think that the antitrust interest in unilaterally-imposed industry-wide terms remains as great after impasse, when the employer’s duty to bargain over those terms has ceased under the labor laws, as at any other time. Congress could, of course, assign some new, significant labor law role to an employer’s right to unilaterally impose terms at impasse, such that the terms must be immune from antitrust scrutiny. But the majority can point to nothing in the statute or in its legislative history to support any such intention. See Amicus br. at 13. (“The text of the NLRA does not mention the antitrust laws, and the legislative history demonstrates no intent to restrict the preexisting rights of workers as the price of participation in a collective bargaining relationship_”). In short, there is simply no fundamental conflict between the well-established interest of the antitrust laws in preventing employers from unilaterally imposing restraints on the labor market through anticompetitive terms, and the interest of the labor laws in promoting collective bargaining.
Despite the majority’s rhetoric, terms of employment unilaterally imposed at impasse bear little resemblance to “bargaining tactics,” even extreme ones like strikes and lockouts.7 Unlike terms of employment, *1068strikes and lockouts have instrumental value only within the bargaining context, as tools to put pressure on the other bargaining party to reach an agreement. Strikes and lockouts make sense only as long as hope exists that an agreement may be reached. Unilaterally-imposed terms, however, go well beyond that purpose. Although occasionally displaying ancillary “tactical” significance, unilaterally-imposed terms are inescapably nontactical in nature — they are simply the way the employer decides to run his business in the absence of any bargaining agreement. They are not bargaining tactics but the end-product of an unsuccessful bargaining process, addressed not to the other bargaining party (the union) but imposed upon the employees because the employer believes they represent good business judgment. Unilaterally-imposed terms, then, are a substitute for an agreement, not a means of reaching one.
Contrary to the majority’s contention, Maj. op. at 1053-54, the Supreme Court has repeatedly recognized this fundamental distinction between terms of employment — “the end result of bargaining” — and the “bargaining process” itself, Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 752, 105 S.Ct. 2380, 2395, 85 L.Ed.2d 728 (1985). In the analogous context of implied preemption by the NLRA of state laws setting minimum labor standards, the Court has held that statutes setting substantive limits on terms of employment — including terms unilaterally imposed at impasse — do not impermissibly intrude on an employers’ “lawful ‘tools of economic self-help’ available to be utilized as a tactic in collective bargaining,” Maj. op. at 1054. Earlier cases had established that state laws interfering with the exercise of self-help “economic weapons” in a labor dispute were preempted by federal labor law because they would “frustrate effective implementation of the [National Labor Relations] Act’s processes,” Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 148, 96 S.Ct. 2548, 2557, 49 L.Ed.2d 396 (1976) (quotation and citation omitted); see also Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986) (citing cases). In Metropolitan Life, employers advanced the argument — similar to the majority’s conclusion here — that this implied preemption also extended to state laws establishing minimum terms of employment, on the theory that the NLRA allows employers and unions to settle terms through free exercise of the “self-help weapon[s]” that form the “balance of power between labor and management expressed in our national labor policy.” Id. 471 U.S. at 750-51, 105 S.Ct. at 2394-95 (citation and quotation omitted). The Court roundly rejected the employers’ contention that “Congress’ ultimate concern in the NLRA was in leaving the parties free to reach agreement about contract terms.” Id. at 752, 105 S.Ct. at 2395. Despite the “surface plausibility to appellants’ argument” that statutory minimum terms interfere with the bargaining process, id., the Court said that “[t]he evil Congress was addressing [in enacting the NLRA] ... was entirely unrelated to local or federal regulation establishing minimum terms of employment,” and there is “[n]o incompatibility” between the purpose of NLRA to “restore the equality of bargaining power,” and “state or federal legislation that imposes minimal substantive requirements on contract terms_” Id. at 754, 105 S.Ct. at 2396 (emphasis added).
In a subsequent case, Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), the Court held that a state statute setting minimum terms in the absence of a collective bargaining agreement was not preempted by the NLRA. In Fort *1069Halifax, a Maine statute provided that employers and employees could alter severance pay terms from the statutory minimum through collective bargaining agreements; but once bargaining reached impasse, the statutory minimum terms applied. Employers again complained that the statute interfered with the collective bargaining process (including presumably their right to impose terms unilaterally at impasse), but the Court held that the statute “does not impermissibly intrude upon the collective bargaining process.” 8 Id. at 23, 107 S.Ct. at 2223. As the Court explained:
Both employers and employees come to the bargaining table with rights ... that form a “backdrop” for their negotiations (citation omitted). Absent a collective-bargaining agreement, for instance, state common law generally permits the employer to run the workplace as it wishes.... The parties may enter negotiations designed to alter this state of affairs, but, if impasse is reached, the employer may rely on preexisting state law to justify its authority to make employment decisions; that same state law defines the rights and duties of employees_ If impasse is reached, ... preexisting state law determines the right[s] of employees....
Id. at 21, 107 S.Ct. at 2222.
The principles of Metropolitan Life and Fort Halifax apply here. Federal antitrust law forms a “backdrop” against which collective bargaining takes place. The nonstatuto-ry labor exemption allows employers and employees to alter these standards through collective bargaining agreements; but at impasse, preexisting antitrust rights apply. Here, just as in Metropolitan Life and Fort Halifax, the substantive limitations placed on terms of employment do not impair the collective bargaining process, even though they may limit employers’ ability to impose the terms of their choice unilaterally at impasse.
In some cases, we are told, impasse “ ‘is eventually broken, either through a change of mind or the application of economic force,’ ” and impasse “may be ‘brought about intentionally by one or both parties as a device to further, rather than destroy, the bargaining process.’ ” Bonanno Linen, 454 U.S. at 412, 102 S.Ct. at 725 (quoting Charles D. Bonanno Linen Serv., Inc., 243 N.L.R.B. 1093, 1093-94). But even if unilateral imposition of terms at impasse may sometimes have tactical significance, the majority’s rule sweeps much too broadly, immunizing unilaterally-imposed terms whether or not they are used as a bargaining tactic; whether or not they break an impasse or otherwise promote further bargaining; and regardless of how identical terms, imposed for identical reasons, would fare under the antitrust laws in the absence of failed collective bargaining.
The present case offers a striking illustration of how employers may now execute an end run around the antitrust laws. Here, there is no indication that the employers’ unilateral imposition of a fixed salary of $1,000 per week on rookie and first-year developmental squad players was a “tactic” or “economic weapon” aimed at bringing an intransigent union back to the bargaining table. The employers frankly admitted they wanted a $1,000 fixed salary for developmental squad players to save money, and because they could not enforce existing prohibitions against “stashing” players on the injured reserve list. Thus their primary purpose for unilaterally imposing the fixed salary had nothing to do with tactical advantages in the bargaining process or pressuring the union to resume bargaining. They basically thought the new terms were a better way to run their business. The purpose, effect, and content of their unilaterally-imposed terms would have been the same had there been no union in the picture at all.
V. Striking the BALANCE Between AntitRüst and Labor Law
The majority suggests that without the rule adopted today, employees will rely on *1070antitrust litigation to secure gains they could not win at the bargaining table but were unwilling to strike over. Maj. op. at 1052-53. That argument is a nonstarter.
First, the majority’s rule applies whether or not the employees strike. Second, denying employers antitrust exemption for unilaterally-imposed terms does not place any new offensive plays in the employees’ playbook. Rather, it affords them a defense against unilateral employer actions that offend antitrust principles. Preserving antitrust protection does not guarantee unions a win at impasse because multiemployer bargaining units still have many other options.9 They can maintain the status quo, and employ economic pressure tactics such as joint lockouts, Buffalo Linen, 353 U.S. at 97, 77 S.Ct. at 648, or hiring temporary replacements for strikers, NLRB v. Brown, 380 U.S. 278, 284, 85 S.Ct. 980, 984, 13 L.Ed.2d 839 (1965). A multiemployer group can be disbanded (by mutual consent with the union) upon the failure of bargaining, and each employer can resume bargaining separately. Although generally not free to unilaterally withdraw from the multiemployer bargaining unit absent “unusual circumstances,” individual employers are still free to negotiate interim agreements with the union, Bonanno Linen, 454 U.S. at 413, 102 S.Ct. at 725. Finally, even if the multiemployer group does proceed to unilaterally impose anticompetitive terms, thereby courting an antitrust lawsuit, the outcome of that litigation is far from a foregone conclusion under a rule-of-reason balancing. Under any of these scenarios, employees will be hard-pressed to gain any easy victory. Indeed, the range of choices left to employers without post-impasse antitrust immunity more closely tracks the “delicate balance” of the collective bargaining process as we now know it, than any wholesale exemption such as that announced by the majority today.
For all these reasons, I would hold ultimately, in accord with the district court, that terms of employment unilaterally imposed by employers after impasse are not exempt from antitrust scrutiny under the nonstatuto-ry labor exemption.10 Under our rule, the symmetry and mutuality of the bargaining process are preserved. Either side may propose and bargain for terms restraining the labor market, but can win those restraints only at the bargaining table by making concessions and securing agreement from the opposing side. Incentives to bargain remain. But at the point of impasse — when an agreement is no longer in sight or even being sought — immunity from antitrust liability for terms employers unilaterally impose should terminate. Extending antitrust immunity undercuts the substantial interests of antitrust law in protecting the freedom of the labor market, and serves no ascertainable purpose within the collective bargaining framework.
This outcome, I believe, accomplishes a superior balancing of the competing interests of antitrust and labor policy. Rather than casting out antitrust principles whenever any aspect of labor law enters the scene, it preserves antitrust protection alongside the collective bargaining process in situations where they do not fundamentally conflict. Cf. Silver v. New York Stock Exchange, 373 U.S. at 357, 83 S.Ct. at 1257 (“the proper approach [to resolving conflict between antitrust laws and a competing statutory scheme] ... is an analysis which reconciles the operation of both statutory schemes with one another rather than holding one completely ousted”). And it better comports with our duty to construe implied antitrust exemptions narrowly; the majority’s global interpretation of the nonstatutory exemption goes far beyond what is necessary to make the collective bargaining process work. Cf. id. Finally, be*1071cause it preserves the symmetry, mutuality, and balance of the collective bargaining process as crafted by Congress over the past 60 years, it more faithfully follows the design of our labor laws as well.
With time running out in a bitterly fought scoreless tie, this court would allow the owners an unearned critical fifth down.
I respectfully dissent.
Before: EDWARDS, Chief Judge, and WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS and TATEL, Circuit Judges.ORDER
June 12, 1995
PER CURIAM.Appellees’ Suggestion For Rehearing In Bane and the brief of the United States in support thereof have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular, active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is
ORDERED, by the Court in banc, that the suggestion is denied.
TATEL, Circuit Judge:This case presents antitrust and labor issues of national significance. The issues have been fully engaged and developed by the majority and dissenting opinions. Supreme Court review is essential to the resolution of these issues. See Sup. Ct. R. 10.1(c).
WALD, Circuit Judge:I would grant the petition for rehearing in banc for the reasons set out in my panel dissent. I believe further that the case involves a significant issue of statutory accommodation between two premier pieces of legislation incorporating our national policies on labor relations and competition and as such merits final resolution by the Supreme Court.
. The majority characterizes the players' position as an ill-begotten effort to “import” and "inject” antitrust principles into collective bargaining. Majority opinion ("Maj. op.”) at 1050, 1052. This of course turns the question inside-out. Historically and logically, antitrust comes first; the antitrust statutes antedate our labor laws and are of general applicability, applying to labor markets unless some statutory or judge-made exemption creates an exception. The question before us then, is whether we should now extend a judicially-created exemption from antitrust coverage for collective bargaining agreements into the previously uncharted territory of post-collective bargaining imposition of the employers’ terms. Thus we might better ask to what extent we must "import” and "inject” labor law practices beyond the collective bargaining context into antitrust laws that would otherwise apply.
. Ironically, athletes have sought to achieve employer competition through the same collective bargaining processes that other employees use to restrain labor market competition. Players' unions typically bargain for such mobility-enhancing and competition-maximizing measures as “free agency” and the elimination of reserve clauses, salary caps and player drafts. Simultaneously, however, players' unions have embraced more traditional union demands such as league-wide minimum salaries and standardized pension plans. See Ethan Lock, The Scope of the Labor Exemption in Professional Sports, 1989 Duke L.J. 339, 341 n. 12.
.I express no opinion as to whether these labor market restraints actually violate the antitrust laws. In most cases, a rule of reason analysis will decide, see Smith v. Pro Football Inc., 593 F.2d 1173, 1182-83 (D.C.Cir.1978), requiring a fact-specific judgment as to whether the procompetitive benefits, if any, of the labor market restraint outweigh its anticompetitive costs. In the present case, appellants colorably argued below *1060that the wage restraint imposed on rookie and first-year nonroster players was necessary to enhance on-field “competitive balance” among teams, thereby making NFL football a more attractive and economically competitive entertainment product. Cf. NCAA v. Board of Regents, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). The district court may have erred in ruling such alleged procompetitive benefits "irrelevant” and granting summary judgment to the players on the question of antitrust liability. Although the majority does not reach the question, I would be inclined to remand for further proceedings on the question of antitrust liability under rule of reason analysis.
. Baseball is an exception for historical reasons. See Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972).
. The applicability of antitrust law to unilaterally-imposed terms of employment was not a settled question prior to today’s decision. But since antitrust coverage presumptively applies to labor markets absent a special exemption, and no exemption clearly applied before today, it is fair to say that until now employers at least had to contemplate the risk of antitrust liability if they unilaterally imposed industry-wide terms of employment.
. A related concern is that some employers may be emboldened to go beyond hard bargaining and engage in “surface bargaining,” merely "going through the motions of negotiating,” K-Mart Corp. v. NLRB, 626 F.2d 704, 706 (9th Cir.1980), in order to position themselves to unilaterally impose industry-wide labor market restraints when the bargaining fails. Surface bargaining is *1065a form of bad-faith bargaining which "is often difficult to detect,” Seattle-First Nat. Bank v. NLRB, 638 F.2d 1221, 1227 n. 9 (9th Cir.1981), because, as we noted in NLRB v. Cauthorne, 691 F.2d 1023, 1026 n. 5 (D.C.Cir.1982), the duty to bargain in good faith does not prohibit an “employer's adamant insistence on pro-management terms,” and “neither side is required to agree to a proposal or make concessions.” Thus it will often be difficult to distinguish bad faith from mere good-faith "adamant insistence” on favorable terms. But whether or not some employers bargain in bad faith, the majority's rule clearly shifts the terms of employers' calculations: entering bargaining confident of their ability to circumvent the constraints of the antitrust laws either through employees' capitulation or through post-impasse unilateral imposition of terms may not be bad faith, but merely a reasonable calculation as to the likely outcome of the negotiation process.
. Although the question is not directly at issue in this case, I share the majority's view that if the collective bargaining process is to work without undue interference from antitrust law, multiem-ployer "bargaining tactics” must fall within the scope of the nonstatutory labor exemption. See Maj. op. at 1056-57. Although multiemployer bargaining is not expressly authorized by the National Labor Relations Act, neither is it prohibited, and the fact that multiemployer bargaining predates the Act strongly suggests that it was contemplated as part of the collective bargaining process. NLRB v. Truck Drivers Union Local 449, 353 U.S. 87, 94-95, 77 S.Ct. 643, 646-47, 1 L.Ed.2d 676 (1957) ("Buffalo Linen ”); see also Williams, 45 F.3d at 688. Multiemployer bargaining strengthens the bargaining process not only by facilitating bargaining on the employers' side, Buffalo Linen, 353 U.S. at 94-95, 77 S.Ct. at 646-647, and allowing employers to counter "whipsaw” tactics by unions, Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404, 409-10 & n. 3, 102 S.Ct. 720, 723-24 & n. 3, 70 L.Ed.2d 656 (1982), but it also makes available joint benefit programs and frees unions from the burden of negotiating separately with many small employers. Id. Thus the statutory scheme of the NLRA may well require that employers be exempt from antitrust liability for basic bargaining tactics such as joining multiemployer bargaining units; developing joint bargaining positions; jointly proposing and negotiating for those positions; and for joint actions, such as lockouts, aimed at pressuring the union in hopes of securing an agreement. Cf. Jewel Tea, 381 U.S. at 713, 85 S.Ct. at 1616 (Opinion of Goldberg, J.) (suggesting multiemployer bargaining must be exempt from antitrust laws); Volkswagenwerk v. Federal Maritime Comm’n, 390 U.S. 261, 287 n. 5, 88 S.Ct. 929, 943 n. 5, 19 L.Ed.2d 1090 (1968) (Harlan, J., concurring) (it is "obvious that the employers are not violating the antitrust laws either when they confer about wage policy preparatory to bargaining or when they sign an agreement”). See also Goldman, supra, at 674-76 (urging nonstatutory labor exemption for *1068multiemployer bargaining tactics, but not for unilaterally-imposed terms). Indeed, there is broad precedent holding multiemployer tactical actions directed at the union within a collective bargaining framework exempt from antitrust scrutiny. See, e.g., Amalgamated Meat Cutters & Butchers Workmen, Local No. 576 v. Wetterau Foods, Inc., 597 F.2d 133 (8th Cir.1979) (agreement to supply temporary replacement workers to struck employer); Prepmore Apparel, Inc. v. Amalgamated Clothing Workers of Amer., 431 F.2d 1004, 1007 (5th Cir.1970) (alleged conspiracy to refuse to deal with union), cert. dismissed, 404 U.S. 801, 92 S.Ct. 21, 30 L.Ed.2d 34 (1971); Newspaper Drivers & Handlers’ Local No. 372 v. NLRB, 404 F.2d 1159 (6th Cir.1968) (mutual lockout agreement), cert. denied, 395 U.S. 923, 89 S.Ct. 1775, 23 L.Ed.2d 240 (1969); Kennedy v. Long Island R. Co., 319 F.2d 366, 372-73 (2d Cir.) (multiemployer strike insur-*1069anee pact), cert. denied, 375 U.S. 830, 84 S.Ct. 75, 11 L.Ed.2d 61 (1963).
. Fort Halifax thus contradicts the majority's contention, Maj. op. at 1054, that this case is controlled by dicta in American Ship Building, 380 U.S. at 316, 85 S.Ct. at 966, naming unilateral imposition of terms among the employers' "tools of economic self-help.” Even if we are bound by the American Ship Building dicta, Fort Halifax — decided later — rejects the implication the majority would draw, that any independent statutory limitation on the terms an employer may impose at impasse impermissibly interferes with the employer's exercise of self-help tools.
. In that sense, this case is distinguishable from Williams, where employees mounted an antitrust challenge to employers’ maintenance of the status quo after expiration of a collective bargaining agreement. There, the employers’ labor law duty to maintain the status quo squarely conflicted with their alleged antitrust duty not to maintain the status quo. Rather than deciding the case on that narrow issue, however, the Williams court announced a broad ouster of antitrust law, similar to the majority’s here.
. In reaching this conclusion, I do not find it necessary to reach some closely-related questions that have arisen in other cases. The most important of these is when, if at all, the nonstatutory *1071labor exemption, attaching to a collective bargaining agreement ends — at expiration of the collective bargaining agreement, at impasse, or at some other post-impasse point. Since the employees never agreed to the labor market restraints at issue here in the first place, no such questions arise in this case.