dissenting:
The majority finds that immunity from the federal antitrust laws may be, and here is, implicit in a statute, the National Health Planning and Resources Development Act of 1974 (hereafter NHPRDA), 42 U.S.C. §§ 300k et seq., amended by 42 U.S.C. § 300k-2. Upon this basis the majority upholds the district court. I find that a grant of antitrust immunity may not be inferred from the NHPRDA absent an express provision therefor. Since the NHPRDA contains no such provision, I cannot agree with the majority.
The district court found as an alternative basis for its grant of summary judgment that the defendants were immunized from liability by the state action doctrine, as expressed in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The majority did not reach this issue; neither do I.
My reasons for dissenting are, briefly: Implied repeals in the antitrust field have been strongly disfavored for over forty years, ever since United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). This is not to say that no implied repeal may ever be found; the Supreme Court has recognized that “there are some activities that must, by implication, be immune from antitrust attack if HSA’s and state agencies are to exercise their authorized powers,” National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, 452 U.S. at 393 n. 18, 101 S.Ct. at 2424 n. 18. However, for immunity from federal antitrust laws to be implied by a statute, there must be a “plain repugnancy” between the requirements of the statute and those of the antitrust laws, United States v. Philadelphia National Bank, 374 U.S. at 351, 83 S.Ct. at 1734, and even then, the antitrust laws may be repealed only to the “minimum extent necessary” to obviate the clear repugnancy, Silver v. New York Stock Exchange, 373 U.S. at 357, 83 S.Ct. at 1257.
As a general rule, the Supreme Court has recognized a statute as repealing the antitrust laws by implication only where the statute provided ongoing government supervision as a substitute for antitrust scrutiny. Cf., United States v. Philadelphia National Bank, 374 U.S. at 351-52, 83 S.Ct. at *691734-35.. (no ongoing supervision-, so no exemption), with Gordon v. New York Stock Exchange, 422 U.S. at 689-90 n. 14, 95 S.Ct. at 2614-15 n. 14, (SEC had ongoing supervision, so exemption found).
The NHPRDA, as implemented by North Carolina’s enabling legislation,1 does give the state agency, the HSA, the power to scrutinize certain acquisitions and expenditures through “certificate of need” (hereafter CON) review. In exercising such power, the state agency provides for public comment and a hearing, and it requires that, in its decision, the agency must support its conclusions by appropriate findings of fact. The agency’s decisions-are subject to judicial review. In its consideration of an acquisition or addition, the' agency is expected to approve only allocations to provide services “for which competition does not or will not appropriately allocate supply.” 2 For those health services “for which competition appropriately allocates supply, ... states should give priority ... to actions which would strengthen the effect of competition on the supply of such services.”3 To this extent only is competition considered. Specifically, there is no consideration by the state agency of costs and charges after acquisition,4 although the federal statute authorizes such review.5 In short, for the reasons stated, North Carolina’s CON statute leaves entities like appellant PIA entirely free to indulge in such post-acquisition activities as price-fixing— activities which Congress intended to curb through the federal antitrust laws.
Just what the result can be is illustrated strikingly by what has occurred here. The acquiring hospital expects, after acquisition, to raise rates at the acquired institution. It is obvious from this review of both the NHPRDA and the state act that CON review is not incompatible with federal antitrust law, nor is the NHPRDA so comprehensive a statute that it obviates the need for antitrust scrutiny. Here, then, there is no clear repugnancy.
The majority reaches its contrary decision after drawing what I view to be an unwarranted inference that the legislative history of the NHPRDA shows Congressional intent to provide antitrust exemption, and after a consideration of only two cases.
The two cases relied upon by the majority are National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City and Gordon v. New York Stock Exchange. The former involves precisely the question of whether the NHPRDA implicitly repealed the antitrust laws for actions arising under it; the latter, whether the Securities Exchange Act of 1934 had repealed the antitrust laws by implication, for fixed rates required by the New York Stock Exchange. Thus on the facts alone,- National Gerimedical would seem to be a precedent with more authority in this case. Nonetheless, the majority found Gordon controlling, apparently only because the Gordon court had found an implied repeal of the antitrust laws essential to make the statute in question, the 1934 Securities Exchange Act, work — whereas the National Gerimedical court had rejected the claim of implied immunity because the facts of the case showed no “plain repugnancy” between the NHPRDA and federal antitrust laws.
Admittedly, in National Gerimedical the state had implemented no CON requirement. Plaintiff hospital, whose failure to obtain CON approval was the basis for Blue Cross’s refusal to grant it participant status, had thus been under no obligation to obtain such approval. When plaintiff hospital alleged that Blue Cross was violating the antitrust laws by refusing to grant the hospital participant status, Blue Cross responded by claiming antitrust immunity under the NHPRDA. The court did state, 452 U.S. at 393 n. 18, 101 S.Ct. at 2424 n. 18, that its holding was not to preclude other *70allegations of antitrust immunity. It also said that a “crucial” factor, id. at 390, 101 S.Ct. at 2422, in its holding was the absence of regulatory (CON) review of Blue Cross’s decision. However, the court said neither that its decision would have been different if there had been mandatory CON review, nor that the absence of CON review was the only, or even the pivotal, reason for its decision.
Appellant PIA’s argument, in light of the above discussion, does not seem to me to be sustainable on the ground of either precedent or legislative history. Congress’s finding that competition is an inadequate safeguard against abuses in the health care industry was based upon the inefficacy of competition in keeping down medical costs. Removing the possibility of antitrust scrutiny would simply exacerbate that problem, by allowing unchecked rate-setting. Congress has shown its grave concern over the spiralling costs of health care. The federal antitrust laws are a weapon created by Congress to prevent unfair competition and monopoly from aggravating the problem of high costs for the consumer. Congress cannot have intended to immunize from antitrust scrutiny the post-acquisition activities of health care providers, simply because the acquisitions themselves must pass CON review. CON review, the NHPRDA, and the federal antitrust laws may not have identical, overlapping goals, but they do have the consistent goal of insuring that health care costs are not unnecessarily and artificially inflated. State regulation of acquisitions and expenditures in areas not responsive to competition alone is not, as the majority seems to contend, irreconcilable with protecting competition where it does exist within the industry. There is no need to suppress the federal antitrust laws in order to make fully effective the NHPRDA and North Carolina’s CON review statute. Indeed, there is no justification for finding such an implied repeal. I believe that PIA’s acquisition of Highland may claim no immunity from federal antitrust scrutiny. I dissent.
. N.C.Gen.Stat. §§ 31-175 et seq. (1981).
. 42 U.S.C. § 300k-2(b)(2).
. 42 U.S.C. § 300k-2(b)(3).
. N.C.Gen.Stat. § 131-177.
. 42 U.S.C. § 300m-5(a).