concurring.
I concur. I write separately, however, to express some doubt about the majority’s conclusion regarding the plaintiffs’ claims under the Sherman Act.
The Supreme Court observed in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), that “[t]he Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action direct*236ed by a state.” Id. at 351, 63 S.Ct. 307. Therefore, “antitrust laws do not forbid the state from adopting policies that permit anticompetitive conduct by regulated private parties.” Cine 42nd St. Theater Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1042 (2d Cir.1986). While the Sherman Act preempts a state from “authorizing [private parties] to violate it, or ... declaring that their action is lawful,” Parker, 317 U.S. at 351, 63 S.Ct. 307, the Supreme Court has emphasized that “with the possible market participant exception, any action that qualifies as state action is ipso facto exempt from the operation of the antitrust laws,” City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (internal quotation marks and ellipsis omitted; emphasis in original).1
Where, as here, the alleged anticompeti-tive harm is achieved at least in part by the acts of private parties, a reviewing court must assure itself that the anticom-petitive scheme is indeed that of the State itself. The court must “determine whether [the] anticompetitive conduct engaged in by private parties should be deemed state action and thus shielded from the antitrust laws.” Patrick v. Burget, 486 U.S. 94, 100, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988). The Supreme Court has therefore created “two standards for [such] antitrust immunity under Parker .... First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the State itself.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980).
The first Midcal prong requires only that the state offer a “clear articulation of a state policy to authorize anticompetitive conduct,” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 40, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985).2
That part of the test seems easily met here, or at least seems as though it would be capable of proof before the district court on remand. In A.D. Bedell Wholesale Co. v. Philip Morris Inc., 263 F.3d 239 (3d Cir.2001), the Third Circuit concluded, after a discussion of the issue, that “it is evident the Multistate Settlement Agreement was backed by clearly articulated state policy.” Id at 260 (footnote omitted). I generally agree with the Third Circuit on this point.
The “clear articulation” standard is not strict. The Supreme Court, in the course of reviewing a state statute delegating the state’s authority to allow anticompetitive conduct to municipalities, noted that it has “rejected the contention that this requirement can be met only if the delegating statute explicitly permits the displacement of competition, see [Town of Hallie, 471 U.S. at 41-42, 105 S.Ct. 1713]. It is enough ... if suppression of competition is the ‘foreseeable result’ of what the statute authorizes, id., at 42, 105 S.Ct. 1713.” *237City of Columbia, 499 U.S. at 372-73, 111 S.Ct. 1344.
[T]he Supreme Court [has] made clear that the first prong of the Midcal test is not as demanding as the Court’s statement of it in Midcal suggests. It does not, for example, require a private party to show “ ‘a specific, detailed legislative authorization’ for its challenged conduct.” [S. Motor Carriers Rate Conf., Inc. v. United States, 471 U.S. 48, 64, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985)] (quoting Lafayette v. La. Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978)). Rather, “[a]s long as the State as sovereign clearly intends to displace competition in a particular field with a regulatory structure, the first prong of the Midcal test is satisfied.” Motor Carriers, 471 U.S. at 64, 105 S.Ct. 1721.
Elec. Inspectors, Inc. v. Vill. of East Hills, 320 F.3d 110, 124 (2d Cir.2003) (last brackets in original).
I see no reason not to apply this formulation to the case before us. And it seems to me that, thereunder, the “clear articulation” prong of the Midcal test can be or has been met inasmuch as the foreseeable — and likely foreseen — result of the challenged Contraband Statutes, combined with the operation of the associated statutes and the MSA, is the suppression of competition.
The second, “active supervision,” prong of Midcal is the problem. The Third Circuit has pointed out that the MSA calls for active State supervision of the implementation of the MSA in the ordinary sense of the words “active supervision”:
The States actively and continually monitor the implementation of portions of the Multistate Settlement Agreement. After requiring a state court consent decree, the Multistate Settlement Agreement also mandates state courts to maintain continuing jurisdiction over enforcement of disputes between the States and the tobacco companies. Under the Multistate Settlement Agreement, the state courts may order compliance in the form of an Enforcement Order. If a State Attorney General believes a manufacturer has failed to comply with an Enforcement Order, it may seek an order for civil contempt or monetary sanction to force compliance. Furthermore, for a period of seven years after settlement, the Attorney General of a Settling State may inspect all non-privileged records of the tobacco companies, and will have access to interview directors, officers and employees upon reasonable belief of a violation of the Multistate Settlement Agreement. The Multistate Settlement Agreement also establishes a $50 million fund to assist the States in enforcing the Multi-state Settlement Agreement. This fund is to be used
to supplement the States’
(1) enforcement and implementation of the terms of [the Multistate Settlement Agreement] and consent decrees, and
(2) investigation and litigation of potential violations of laws with respect to Tobacco Products.
A.D. Bedell Wholesale Co., 263 F.3d at 261 (citations to MSA omitted). In the case before us, there similarly seems to be active State supervision, in that sense, of the Contraband Statutes, the MSA, and the other associated statutes. Indeed, the Contraband Statutes themselves may be viewed as an effort closely tied to the active supervision of the MSA, its associated State statutes, and the resulting potentially anticompetitive conduct.
But, as the Third Circuit has also noted, id. at 260, the Supreme Court has said that “[t]he active supervision prong of the Midcal test requires that state officials *238have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy.” Patrick, 486 U.S. at 101, 108 S.Ct. 1658 (emphasis added). The Third Circuit has applied that principle to a situation virtually indistinguishable from the one in the present case, concluding that, in the absence of state supervision of particular anticompetitive acts, the “active supervision” standard had not been met. AD. Bedell Wholesale Co., 263 F.3d at 261. I agree with the majority that the district court was wrong to grant Rule 12(b)(6) dismissal on the Sherman Act claims because we cannot conclude at the pleading stage that the “active supervision” part of the Midcal test has been met. “Absent such a program of supervision, there is no realistic assurance that a private party’s anticompetitive conduct promotes state policy, rather than merely the party’s individual interests.” Patrick, 486 U.S. at 101, 108 S.Ct. 1658. Because there is no such program of supervision reflected in what is before us, the Parker doctrine does not immunize the conduct of the defendants, at least not at this stage of the proceedings.
The State appears to have entered into the MSA and enacted the Escrow and Contraband Statutes as part of a comprehensive effort, inter alia, to settle its massive legal claims against the tobacco companies, to protect the substantial revenue promised by that settlement, and in the process, to protect State citizens (perhaps in part by driving up the price of cigarettes dramatically and erecting barriers to the success of discount cigarette importers). It is arguable that even without the particularized review called for by the Supreme Court, under the circumstances pleaded in this case, we can be confident that the scheme does not serve “merely the [tobacco companies’] individual interests,” id.; that the “the state ... has created the machinery for establishing” the MSA and its related statutes, Parker, 317 U.S. at 352, 63 S.Ct. 307, in such a way as to “effectively ... ma[k]e [the anticom-petitive] conduct its own,” Patrick, 486 U.S. at 106, 108 S.Ct. 1658. But the Supreme Court’s requirement of “active supervision” in the sense in which it uses that term seems to me to foreclose a conclusion at this stage of the proceedings that the plaintiffs’ Sherman Act claims are barred by Parker.
In any event, this action is being returned to the district court for further proceedings. During the course of those proceedings, the State may be able to satisfy both Midcal factors as a matter of fact.
Finally, I note the majority’s comment that “the State offers no reason why it used methods suppressing competition rather than a flat tax to achieve the same result,” ante at 230, and that, “at this stage in the proceeding and given the allegations of the complaint, the goals of serving public health and enhancing revenue conflict. That is to say, the fewer cigarettes sold, the less threat to public health, but also the less revenue raised by the State, and vice versa,” id. While the majority may have identified puzzling aspects of the MSA and its accompanying statutes and the political and economic considerations that led to them, I am not convinced that these observations are relevant to our inquiry. Nothing in Parker, Midcal, or their progeny suggests to me that Parker immunity turns on whether a federal court understands or approves of the regulatory measures the state chooses or that the State is required to justify its decision to select a less competitive course of action in place of a more competitive one. I do not know why the State did not employ a flat tax instead of the scheme that it adopted, but I doubt that it matters to us so long as we are assured that the State’s program is *239sufficiently articulated and supervised to be immune under the Parker doctrine.
. Parker does not permit a state to "becom[e] a participant in a private agreement ... for restraint of trade,” id. at 351-52, 63 S.Ct. 307, but the Supreme Court has made clear that this exception applies only when the state acts as a "commercial participant in a given market,” not when it acts in its "regulatory capacity,” City of Columbia, 499 U.S. at 374-75, 111 S.Ct. 1344.
. Unlike the majority, I doubt that this test has "an ancillary purpose” of "reveal[ing] the State’s purposes in agreeing to, and enforcing, the MSA's market-share provisions.” Ante at 227. The Supreme Court has made it clear, I think, that the first prong simply "requires authority to suppress competition.” City of Columbia, 499 U.S. at 372, 111 S.Ct. 1344; see also 324 Liquor Corp. v. Duffy, 479 U.S. 335, 343-44, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987); Town of Hallie, 471 U.S. at 40-42, 105 S.Ct. 1713.