with whom McMILLIAN, Circuit Judge, joins, dissenting.
I dissent from this court’s denial of rehearing en banc. This case is undoubtedly one of the more significant cases this court has confronted in several years. A 2-1 panel opinion now serves as an important precedent of newly-declared law in the accommodation of congressional policies favoring both free competition and collective bargaining. In all due respect, two judges of this court have impliedly overruled this court’s long-standing, well-recognized precedent in Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976). In doing so, the panel majority concedes its *1308own uncertainty as to when the antitrust exemption ends, and, in addition, needlessly treats the issue as ripe for resolution.1
En banc procedures should seldom be invoked. In recent years I have been critical of this court using en banc procedures to hear routine and insignificant issues. See, e.g., United States v. Arpan, 887 F.2d 873, 879 n. 2 (8th Cir.1989) (en bane) (Lay, C.J., dissenting) (issue of trial judge’s response to juror question). En banc procedures expend valuable judicial energies which should be used not to correct questionable panel decisions but only to decide decisions of the utmost importance or to resolve intra-circuit conflicts. See Western Pac. R.R. Corp. v. Western Pac. R.R., 345 U.S. 247, 260-62, 73 S.Ct. 656, 662-64, 97 L.Ed. 986 (1953). Here, not only is the issue significant, but the panel has impliedly overruled a long-standing decision of this court. Thus, in my judgment, this case is among the rare exceptions which should be reheard en banc.
This court’s Mackey decision, which I authored in 1976 and which then Chief Judge Floyd Gibson and Judge William Webster joined, declared “the policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's length bargaining.” Id. at 614 (emphasis added). Mackey is founded on the principles that an employer’s exemption owes its existence to union consent, and is aimed at preserving the integrity of the negotiating process. As stated by the Third Circuit in Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 847 n. 14 (3d Cir.1974):
We reject Scooper Dooper’s contention that the labor exemption is unavailable to employers. Such a proposition would undermine the vitality of the exemption by discouraging bargaining on the part of management. To preserve the integrity of the negotiating process, employers who bargain in good faith must be entitled to claim the antitrust exemption, (citation omitted)
The panel majority purports to apply Mack-ey, yet ignores these principles. The undeniable reality is that the panel opinion does not apply Mackey, it rejects it by destroying its carefully constructed limitations.
The panel majority notes that Mackey left open the question whether the exemption continues after a bona fide agreement formally terminates.2 However, the panel *1309then proceeds to extend the law based on a premise which completely ignores the rationale of Mackey. In the present case the collective bargaining agreement containing the exempted restraint has not only come to an end, but, under the panel majority’s erroneous assumption, the parties have unsuccessfully bargained over its continuance to the point of impasse. Clearly, at this point the restraint can no longer be considered “the product of bona fide arm’s-length negotiation.” Once impasse has been reached, after termination of an agreement, it is a complete nonsequitur to hold that continued restraints are protected as an accommodation of the good faith bargaining of the parties.
The panel decision destroys the very foundation of the limits we carefully constructed in Mackey. The panel majority reasons that, notwithstanding impasse, as long as the restraint was at one time contained within a terminated agreement it retains immunity as the “product” of collective bargaining. Surely this cannot be the law. If the exemption does not end at impasse, when does it end? The majority’s view does not accommodate labor policy, it instead offers an employer’s Shangri-la of everlasting immunity from the antitrust laws.
The holding in Mackey was focused on “the proper accommodation of the competing labor and antitrust interests * * 543 F.2d at 614. We based our analysis on the Supreme Court’s requirement that “a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions.” Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 622, 95 S.Ct. 1830, 1835, 44 L.Ed.2d 418 (1975) (emphasis added). Mackey did not rely solely on the existence of an agreement. Rather it turned on whether the restraints were obtained through the bona fide collective bargaining process. We held that the exemption was not available, notwithstanding the Rozelle Rule’s incorporation into earlier agreements,3 because the club owners had refused to bargain in good faith over the Rozell Rule. Mackey, 543 F.2d at 613, 616. Here there can be no question but that once the contract ended and an impasse in attempting to negotiate further restraints on player’s services was reached, the exemption no longer was effective because the bona fide bargaining process had ceased. Assuming impasse, both sides are free to act unilaterally.4 At this point, the restraint is no longer a product of collective bargaining; it is simply a unilateral rule imposed by management. To hold otherwise undermines basic, rudimentary labor policy and law.
The rationale underlying the panel decision appears to be that a union should not be entitled to invoke the antitrust laws to gain something it could not win at the bargaining table. This overlooks the fact that the restraint involved is clearly beneficial to management, and is illegal unless otherwise exempt. The panel majority fails to comprehend that it was not the union that failed to win a concession, but the employer who gained victory in the first instance by obtaining the antitrust exemption through union consent.
The only labor policy of which I am aware that is accommodated by exempting the laws protective of free competition is bona fide collective bargaining. Yet, this court’s unprecedented decision leads to the ineluctable result of union decertification in order to invoke rights to which the players *1310are clearly entitled under the antitrust laws. See Powell, see p. 1304 (Heaney, J., dissenting). The plain and simple truth of the matter is that the union should not be compelled, short of self-destruction, to accept illegal restraints it deems undesirable. Union decertification is hardly a worthy goal to pursue in balancing labor policy with the antitrust laws.
The panel decision, left undisturbed by the failure of the en banc court to rehear the case today, not only fails to adhere to our precedent in Mackey, but substantially amends the antitrust laws. In doing so, it ignores the Supreme Court’s admonition that “exemptions from antitrust laws are to be narrowly construed.” Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231, 99 S.Ct. 1067, 1083, 59 L.Ed.2d 261 (1979). For these reasons, I would grant petitioner’s suggestion for rehearing en banc, and would vote to overturn the panel opinion.
. I base my views regarding the panel majority’s misinterpretation of Mackey only upon the majority’s apparent but wrongful assumption that impasse between the union and the owners has been reached.
I agree with Judge Heaney that the district court should not have found impasse on the single issue of the free agency rule. See Powell v. National Football League, see p. 1304 (Hea-ney, J., dissenting). The parties are still negotiating over other terms of the contract. Impasse on overall negotiations of the contract has not been reached by the parties and therefore summary judgment is not ripe at this time. The parties may yet settle all their disputes in one agreement. The finding of impasse, prematurely acquiesced in by the panel majority, overlooks the fact that in 1976 the owners argued a "quid pro quo” existed for the adoption of the Rozelle Rule in the fact that the players received increased pension rights and the right to negotiate their own contracts. See Mackey, 543 F.2d at 616. Such an argument illustrates that labor negotiations involve a give and take on many varied issues. It is impractical to reach sound legal decisions on a bifurcated bargaining subject when other subjects which are inherently intertwined are still pending negotiation.
The panel majority seemingly agrees that no impasse has been reached. See Powell, panel op. p. 1302 n. 8. If the panel majority had stopped there, I would have no disagreement. The suit could be dismissed on the ground that bargaining on all subjects, including the free agency rule, continues. But the panel majority goes on and rules, in an unprecedented decision, that the exemption continues beyond a hypothetical impasse. Thus, the panel majority opinion is pure dicta.
. In Mackey, we did not need to decide whether the effect of an agreement might extend beyond its formal expiration date for purposes of the labor exemption. Mackey, 543 F.2d at 616 n. 18. We expressly acknowledged the issue, however, in recognition of conflicting statutory obligations that might arise given cases requiring an employer to adhere to contract terms after the contract's formal expiration date while the parties continue their bargaining for a new contract. See, e.g., Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir.1970). This duty to maintain the status quo, however, ends at the point impasse is reached. At that point, the slate is essentially wiped clean, and the employer is free to unilat*1309erally implement proposals which the union may have strongly opposed at the bargaining table.
. The earlier agreements in Mackey containing the restraints even contained a "zipper” clause which read: "[T]his Agreement represents a complete and final understanding on all bar-gainable subjects of negotiation among the parties during the term of this Agreement * * *.” 543 F.2d 613.
. This is true of course as long as the unilateral action adheres to recognized legal restraints governing the parties' conduct. One such legal restraint would certainly be the antitrust laws.