dissenting.
The Court today holds that a public utility company, pervasively regulated by a state utility com*615mission, may be held liable for treble damages under the Sherman Act for engaging in conduct which, under the requirements of its tariff, it is obligated to perform. I respectfully dissent from this unprecedented application of the federal antitrust laws, which will surely result in disruption of the operation of every state-regulated public utility company in the Nation and in the creation of “the prospect of massive treble damage liabilities” 1 payable ultimately by the companies’ customers.
The starting point in analyzing this case is Parker v. Brown, 317 U. S. 341. While Parker did not create the “so-called state-action exemption”2 from the federal antitrust laws,3 it is the case that is most frequently *616cited for the proposition that the “[Sherman] Act was intended to regulate private practices and not to prohibit a State from imposing a restraint as an act of government.” Goldfarb v. Virginia State Bar, 421 U. S. 773, 788. The plurality opinion would hold that that case decided only that “the sovereign State itself,” ante, at 591, could not be sued under the Sherman Act. This view of Parker, which would trivialize that case to the point of overruling it,4 flies in the face of the decisions of *617this Court that have interpreted or applied Parker’s, “state action” doctrine, and is unsupported by the sources on which the plurality relies.
As to those sources, I would have thought that except in rare instances an analysis of the positions taken by the parties in briefs submitted to this Court should play no role in interpreting its written opinions.5 A *618contrary rule would permit the “plain meaning” of our decisions to be qualified or even overridden by their “legislative history” — i. e., briefs submitted by the contending parties. The legislative history of congressional enactments is useful in discerning legislative intent, because that history emanates from the same source as the legislation itself and is thus directly probative of the intent of the draftsmen. The conflicting views presented in the adversary briefs and arguments submitted to this Court do not bear an analogous relationship to the Court’s final product.
But assuming, arguendo, that it is appropriate to look behind the language of Parker v. Brown, supra, I think it is apparent that the plurality has distorted the positions taken by the State of California and the United States as amici curiae. The question presented on reargument in Parker was “whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act . . . .” Ante, at 587 n. 16. This phrasing indicates that the precise issue on which the Court sought reargument was whether the California statute was pre-empted by the Sherman Act, not whether sovereign States were immune from suit under the Sherman Act.
The State of California and the Solicitor General certainly understood this to be the principal issue. As the plurality opinion correctly notes, the supplemental brief filed by the State of California in response to the question posed by this Court advanced three basic arguments. And as it further notes, this Court’s decision in Parker rested on the first of those arguments. But what the plurality fails to acknowledge is that California’s first argument was in principal part a straightforward conten*619tion that the Sherman Act was not intended to pre-empt state regulation of intrastate commerce.6
With respect to the amicus brief of the United States, *620the plurality opinion states that the “Solicitor General did not take issue with the appellants’ first argument.” Ante, at 588. Indeed, the plurality says, the Solicitor General “expressly disclaimed any argument that the State of California or its officials had violated federal law.” Ibid. In support of this assertion, the plurality opinion quotes the following language from p. 59 of the Solicitor General’s brief in Parker:
“ f[T]he question we face here is not whether California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute.’ ” Ante, at 589 n. 19.
This statement by the Solicitor General was indeed correct, because the question on which the Court had requested supplemental briefing was “whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act,” not “whether California or its officials have violated the Sherman Act. . . .” As the Solicitor General noted in the very next sentence, “[a] state law may be superseded as conflicting with a federal statute irrespective of whether its administrators are subject to prosecution for violation of the paramount federal enactment.” 7 The Solicitor General then pro*621ceeded to take strenuous issue with the principal contention advanced in the first part of the relevant section of California's brief — that the framers of the federal legislation had not intended to pre-empt state legislation like the California Agricultural Prorate Act.8
Thus, it is clear that the plurality has misread the positions taken by the State of California and the Solicitor General in Parker v. Brown. The question presented to the Court in Parker was whether the restraint on trade effected by the California statute was exempt *622from the operation of the Sherman Act. That was the question addressed by the Solicitor General and, in principal part, by the State of California. And it was the question resolved by this Court in its holding that “[t]he state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit.” 317 U. S., at 352.
The notion that Parker decided only that “action taken by state officials pursuant to express legislative command did not violate the Sherman Act,” ante, at 589, and that that “narrow holding . . . avoided any question about the applicability of the antitrust laws to private action” taken under command of state law, ante, at 590, is thus refuted by the very sources on which the plurality opinion relies. That narrow view of the Parker decision is also refuted by the subsequent cases in this Court that have interpreted and applied the Parker doctrine.
In Eastern R. Conf. v. Noerr Motors, 365 U. S. 127, for instance, the Court held that no violation of the Sherman Act could be predicated on the attempt by private persons to influence the passage or enforcement of state laws regulating competition in the trucking industry.9 The Court took as its starting point the ruling in Parker v. Brown that “where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out.” 365 U. S., at 136. The Court *623viewed it as “equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly.” Ibid. A contrary ruling, the Court held, “would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade.” Id., at 137. Surely, if a rule permitting Sherman Act liability to arise from lobbying by private parties for state rules restricting competition would impair the power of state governments to impose restraints, then a fortiori a rule permitting Sherman Act liability to arise from private parties’ compliance with such rules would impair the exercise of the States’ power. But as the Court in Noerr correctly noted, the latter result was foreclosed by Parker’s, holding that “where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out.” 365 U. S., at 136.
Litigation testing the limits of the state-action exemption has focused on whether alleged anticompetitive conduct by private parties is indeed “the result of” state action. Thus, in Goldfarb v. Virginia State Bar, 421 U. S. 773, the question was whether price fixing practiced by the respondents was “required by the State acting as sovereign. Parker v. Brown, 317 U. S., at 350-352 ....” Id., at 790. The Court held that the “so-called state-action exemption,” id., at 788, did not protect the respondents because it “cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent. . . . Respondents’ arguments, at most, constitute the contention that their activities complemented the ob*624jective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is 'prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign." Id., at 790-791. The plurality’s view that Parker does not cover state-compelled private conduct flies in the face of this carefully drafted language in the Goldfarb opinion.
Parker, Noerr, and Goldfarb point unerringly to the proper disposition of this case. The regulatory process at issue has three principal stages. First, the utility company proposes a tariff. Second, the Michigan Public Service Commission investigates the proposed tariff and either approves it or rejects it. Third, if the tariff is approved, the utility company must, under command of state law, provide service in accord with its requirements until or unless the Commission approves a modification. The utility company thus engages in two distinct activities: It proposes a tariff and, if the tariff is approved, it obeys its terms. The first action cannot give rise to antitrust liability under Noerr and the second — compliance with the terms of the tariff under the command of state law — is immune from antitrust liability under Parker and Goldfarb.10
*625The plurality’s contrary view would effectively overrule not only Parker but the entire body of post-Parker case law in this area, including Noerr. With the Parker holding reduced to the trivial proposition that the Sherman Act was not intended to run directly against state officials or governmental entities, the Court would fashion a new two-part test for determining whether state utility regulation creates immunity from the federal antitrust law. The first part of the test would focus on whether subjecting state-regulated utilities to antitrust liability would be “unjust.” The second part of the test would look to whether the draftsmen of the Sherman Act intended to “superimpose” antitrust standards, and thus exposure to treble damages, on conduct compelled by state regulatory laws. The Chief Justice accedes to the new two-part test, at least where the State “purports, without any independent regulatory purpose, to control [a] utility’s activities in separate, competitive *626markets.” Ante, at 604. The new immunity test thus has the approval of a majority of the Court in instances where state-compelled anticompetitive practices are deemed “ancillary” to the State’s regulatory goals.11
With scarcely a backward glance at the Noerr case, the Court concludes that because the utility company’s “participation” in the decision to incorporate the lamp-exchange program into the tariff was “sufficiently significant,” there is nothing “unjust” in concluding that the company is required to conform its conduct to federal antitrust law “like comparable conduct by unregulated businesses . . . .” Ante, at 594. This attempt to distinguish between the exemptive force of mandatory state rules adopted at the behest of private parties and those adopted pursuant to the State’s unilateral decision is flatly inconsistent with the rationale of Noerr. There the Court pointedly rejected “[a] construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested” because such a construction “would . . . deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them.” 365 U. S., at 139.12
*627Today's holding will not only penalize the right to petition but may very well strike a crippling blow at state utility regulation. As the Court seems to acknowledge, such regulation is heavily dependent on the active participation of the regulated parties, who typically propose tariffs which are either adopted, rejected, or modified by utility commissions. But if a utility can escape the unpredictable consequences of the second arm of the Court’s new test, see infra, this page, only by playing possum— by exercising no “option” in the Court’s terminology, ante, at 594 — then it will surely be tempted to do just that, posing a serious threat to efficient and effective regulation.
The second arm of the Court’s new immunity test, which apparently comes into play only if the utility’s own activity does not exceed a vaguely defined threshold of “sufficient freedom of choice,” purports to be aimed at answering the basic question of whether “Congress intended to superimpose antitrust standards on conduct already being regulated” by state utility regulation laws. Ante, at 595. Yet analysis of the Court’s opinion reveals that the three factors to which the Court pays heed have little or nothing to do with discerning congressional intent. Rather, the second arm of the new test simply creates a vehicle for ad hoc judicial determinations of the substantive validity of state regulatory goals, which closely resembles the discarded doctrine of substantive due process. See Ferguson v. Skrupa, 372 U. S. 726.
The Court’s delineation of the second arm of the new test proceeds as follows. Apart from the “fairness” question, the Court states, there are “at least three reasons” why the light-bulb program should not enjoy Sherman Act immunity. Ante, at 595. “First,” the Court observes, “merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy *628inconsistent standards . . . .” Ibid. That is true enough as an abstract proposition, but the very question is whether the utility’s alleged “tie” of light-bulb sales to the provision of electric service is immune from antitrust liability, assuming it would constitute an antitrust violation in the absence of regulation.13 Second, the Court states, “even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subordinated to the State’s . . . .” Ibid. The Court goes on to amplify this rationale as follows:
“The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws. Therefore, *629assuming that there are situations in which the existence of state regulation should give rise to an implied exemption, the standards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation.
“The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory act work, 'and even then only to the minimum extent necessary.’
“The application of that standard to this case inexorably requires rejection of respondent’s claim.” Ante, at 596-598 (footnotes omitted).
The Court’s analysis rests on a mistaken premise. The “implied immunity” doctrine employed by this Court to reconcile the federal antitrust laws and federal regulatory statutes cannot, rationally, be put to the use for which the Court would employ it. That doctrine, a species of the basic rule that repeals by implication are disfavored, comes into play only when two arguably inconsistent federal statutes are involved. “ 'Implied repeal’ ” of federal antitrust laws by inconsistent state regulatory statutes is not only “ 'not favored,’ ” ante, at 597-598, n. 37, it is impossible. See U. S. Const., Art. VI, cl. 2.
A closer scrutiny of the Court’s holding reveals that its reference to the inapposite “implied repeal” doctrine is simply window dressing for a type of judicial review radically different from that engaged in by this Court in Gordon v. New York Stock Exchange, 422 U. S. 659, and United States v. Philadelphia National Bank, 374 U. S. 321. Those cases turned exclusively on issues of statutory construction and involved no judicial scrutiny of the abstract “necessity” or “centrality” of par*630ticular regulatory provisions. Instead, the federal regulatory statute was accepted as a given, as was the federal antitrust law. The Court’s interpretative effort was aimed at accommodating these arguably inconsistent bodies of law, not at second-guessing legislative judgments concerning the “necessity” for including particular provisions in the regulatory statute.
The Court’s approach here is qualitatively different. The State of Michigan, through its Public Service Commission, has decided that requiring Detroit Edison to provide “free” light bulbs as a term and condition of service is in the public interest. Yet the Court is prepared to set aside that policy determination: “The lamp-supply program is by no means . . . imperative in the continued effective functioning of Michigan’s regulation of the utilities industry.” Ante, at 597 n. 36 (emphasis added). Even “if the federal antitrust laws should be construed to outlaw respondent’s light-bulb-exchange program, there is no reason to believe that Michigan’s regulation of its electric utilities will no longer be able to junction ejjectively. Regardless of the outcome of this case, Michigan’s interest in regulating its utilities’ distribution of electricity will be almost entirely unimpaired.” Ante, at 598 (emphasis added).
The emphasized language in these passages shows that the Court is adopting an interpretation of the Sherman Act which will allow the federal judiciary to substitute its judgment for that of state legislatures and administrative agencies with respect to whether particular anticompetitive regulatory provisions are “ 'sufficiently central,’ ” ante, at 597 n. 37, to a judicial conception of the proper scope of state utility regulation. The content of those “ 'purposes,’ ” ibid., which the Court will suffer the States to promote derives presumably from the mandate of the Sherman Act. On this assumption — and no other is plausible — it becomes appar*631ent that the Court’s second reason for extending the Sherman Act to cover the light-bulb program, when divested of inapposite references to the federal implied repeal doctrine, is merely a restatement of the third rationale, which the Court phrases as follows: “[F]inally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs.” Ante, at 595. This statement raises at last the only legitimate question, which is whether Parker erred in holding that Congress, in enacting the Sherman Act, did not intend to vitiate state regulation of the sort at issue here by creating treble-damages exposure for activities performed in compliance therewith.
The Court’s rationale appears to be that the draftsmen of the Sherman Act intended to exempt state-regulated utilities from treble damages only to the extent those utilities are complying with state rules which narrowly reflect the “typiea[l] assumption] that the [utility] is a natural monopoly” and which regulate the utility’s “natural monopoly powers” as opposed to its “business activity in competitive areas of the economy.” Ante, at 595-596 (footnotes omitted). Furthermore, such regulation must be “ ‘sufficiently central’ ” to the regulation of natural monopoly powers if it is to shield the regulated party from antitrust liability. Ante, at 597 n. 37. This Delphic reading of the Sherman Act, which is unaided by any reference to the language or legislative history of that Act, is, of course, inconsistent with Parker v. Brown. Parker involved a state scheme aimed at artificially raising the market price of raisins. Raisin production is not a “natural monopoly.” If the limits of *632the state-action exemption from the Sherman Act are congruent with the boundaries of “natural monopoly” power, then Parker was wrongly decided.
But the legislative history of the Sherman Act shows conclusively that Parker was correctly decided. The floor debates and the House Report on the proposed legislation clearly reveal, as at least one commentator has noted, that “Congress fully understood the narrow scope given to the commerce clause” in 1890.14 This understanding is, in many ways, of historic interest only, because subsequent decisions of this Court have “permitted the reach of the Sherman Act to expand along with expanding notions of congressional power.”15 But the narrow view taken by the Members of Congress in 1890 remains relevant for the limited purpose of assessing their intention regarding the interaction of the Sherman Act and state economic regulation.
The legislative history reveals very clearly that Congress’ perception of the limitations of its power under the Commerce Clause was coupled with an intent not to intrude upon the authority of the several States to regulate “domestic” commerce. As the House Report stated:
“It will be observed that the provisions of the bill are carefully confined to such subjects of legislation as are clearly within the legislative authority of Congress.
“No attempt is made to invade the legislative au*633thority of the several States or even to occupy doubtful grounds. No system of laws can be devised by Congress alone which would effectually protect the people of the United States against the evils and oppression of trusts and monopolies. Congress has no authority to deal, generally, with the subject within the States, and the States have no authority to legislate in respect of commerce between the several States or with foreign nations.
“It follows, therefore, that the legislative authority of Congress and that of the several States must be exerted to secure the suppression of restraints upon trade and monopolies. Whatever legislation Congress may enact on this subject, within the limits of its authority, will prove of little value unless the States shall supplement it by such auxiliary and proper legislation as may be within their legislative authority.” 16
Similarly, the floor debates on the proposed legislation reveal an intent to “g[o] as far as the Constitution permits Congress to go,” 17 in the words of Senator Sherman, conjoined with an intent not to “interfere with” state-law efforts to “prevent and control combinations within the limit of the State.” 18 Far from demonstrating an intent to pre-empt state laws aimed at preventing or controlling combinations or monopolies, the legislative debates show that Congress’ goal was to supplement such state efforts, themselves restricted to the geographic boundaries of the several States. As Senator Sherman stated: “Each State can deal with a combination within the State, but only the General Government can deal *634with combinations reaching not only the several States, but the commercial world. This bill does not include combinations within a State . . . .”19 Indeed a preexisting body of state law forbidding combinations in restraint of trade provided the model for the federal Act. As Senator Sherman stated with respect to the proposed legislation: “It declares that certain contracts are against public policy, null and void. It does not announce a new principle of law, but applies old and well-recognized principles of the common law to the complicated jurisdiction of our State and Federal Government. Similar contracts in any State in the Union are now, by common or statute law, null and void.” 20
It is noteworthy that the body of state jurisprudence which formed the model for the Sherman Act coexisted with state laws permitting regulated industries to operate under governmental control in the public interest. Indeed, state regulatory laws long antedated the passage of the Sherman Act and had, prior to its passage, been upheld by this Court against constitutional attack.21 Such laws were an integral part of state efforts to regu*635late competition to which. Congress turned for guidance in barring restraints of interstate commerce, and it is clear that those laws were left undisturbed by the passage of the Sherman Act in 1890. For, as congressional spokesmen expressly stated, there was no intent to “interfere with" state laws regulating domestic commerce or “invade the legislative authority of the several States....”
As previously noted, the intent of the draftsmen of the Sherman Act not to intrude on the sovereignty of the States was coupled with a full and precise understanding of the narrow scope of congressional power under the Commerce Clause, as it was then interpreted by decisions of this Court. Subsequent decisions of the Court, however, have permitted the “jurisdictional" reach of the Sherman Act to expand along with an expanding view of the commerce power of Congress. See Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743 n. 2, and cases cited therein. These decisions, based on a determination that Congress intended to exercise all the power it possessed when it enacted the Sherman Act,22 have in effect allowed the Congress of 1890 the retroactive benefit of an enlarged judicial conception of the commerce power.23
It was this retroactive expansion of the jurisdictional reach of the Sherman Act that was in large part responsible for the advent of the Parker doctrine. Parker involved a program regulating the production of raisins *636within the State of Cahfornia. Under the original understanding of the draftsmen of the Sherman Act, such in-state production, like in-state manufacturing, would not have been subject to the regulatory power of Congress under the Commerce Clause and thus not within the “jurisdictional” reach of the Sherman Act. See United States v. E. C. Knight Co., 156 U. S. 1. If the state of the law had remained static, the Parker problem would rarely, if ever, have arisen. As stated in Northern Securities Co. v. United States, 193 U. S. 197, the operative premise would have been that the “Anti-Trust Act . . . prescribe [d] ... a rule for interstate and international commerce, (not for domestic commerce,)” id., at 337. The relevant question would have been whether the anticompetitive conduct required or permitted by the state statute was in restraint of domestic or interstate commerce. If the former, the conduct would have been beyond the reach of the Sherman Act; if the latter, the conduct would probably have violated the Sherman Act, regardless of contrary state law, on the theory that “[n]o State can, by . . . any . . . mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or . . . to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce.” Id., at 345-346.
But the law did not remain static. As one commentator has put it: “By 1942, when Parker v. Brown was decided, the interpretation and scope of the commerce clause had changed substantially. With the development of the 'affection doctrine’ purely intrastate events” — like state-mandated anticompetitive arrangements with respect to in-state agricultural production or in-state provision of utility services — “could be regulated *637under the commerce clause if these events had the requisite impact on interstate commerce.” 24 This development created a potential for serious conflict between state statutes regulating commerce which, in 1890, would have been considered “domestic” but which, in 1942, were viewed as falling within the jurisdictional reach of the Sherman Act. To have held that state statutes requiring anticompetitive arrangements with respect to such commerce were pre-empted by the Sherman Act would, in effect, have transformed a generous principle of judicial construction — namely the “retroactive” expansion of the jurisdictional reach of the Sherman Act to the limits of an expanded judicial conception of the commerce power — into a transgression of the clearly expressed congressional intent not to intrude on the regulatory authority of the States.
The “state action” doctrine of Parker v. Brown, as clarified by Goldfarb, represents the best possible accommodation of this limiting intent and the post-1890 judicial expansion of the jurisdictional reach of the Sherman Act. Parker’s basic holding — that the Sherman Act did not intend to displace restraints imposed by the State acting as sovereign — coincides with the expressed legislative goal not to “invade the legislative authority of the several States . . . Goldfarb clarified Parker by holding that private conduct, if it is to come within the state-action exemption, must be not merely “prompted” but “compelled” by state action. Thus refined, the doctrine performs the salutary function of isolating those areas of state regulation where the State’s sovereign interest is, by the State’s own judgment, at its strongest, and limits the exemption to those areas.25
*638Beyond this the Court cannot go without disregarding the purpose of the Sherman Act not to disrupt state regulatory laws.26 Congress, of course, can alter its *639original intent and expand or contract the categories of state law which may permissibly impose restraints on competition. For example, in 1937 Congress passed the Miller-Tydings Act which attached a proviso to § 1 of the Sherman Act permitting resale price maintenance contracts where such contracts were permitted by applicable state law. This proviso was interpreted in Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, not to permit a State to enforce a law providing that all retailers within a State were bound by a resale price maintenance contract executed by any one retailer in the State. As the Court today notes, Parker — and the legislative judgment embodied in the 1890 version of the Sherman Act — would, standing alone, have seemed to immunize the state scheme. Ante, at 593. But Congress was thought to have struck a new balance in 1937 with respect to a specific category of state-imposed restraints. Accordingly, the Court in Schwegmann determined congressional intent concerning the permissible limits of state restraints with respect to resale price maintenance by reference to the later, and more specific, expression of congressional purpose.27
*640There has been no analogous alteration of the original intent regarding the area of state regulation at issue here. Indeed, to the extent subsequent congressional action is probative at all, it shows a continuing intent to defer to the regulatory authority of the States over the terms and conditions of in-state electric utility service. Thus, § 201 (a) of the Federal Power Act, 16 U. S. C. § 824 (a), provides in relevant part that “Federal regulation . . . [is] to extend only to those matters which are not subject to regulation by the States.”
The Court’s opinion simply ignores the clear evidence of congressional intent and substitutes its own policy judgment about the desirability of disregarding any facet of state economic regulation that it thinks unwise or of no great importance. In adopting this freewheeling approach to the language of the Sherman Act the Court creates a statutory simulacrum of the substantive due process doctrine I thought had been put to rest long ago. See Ferguson v. Skrupa, 372 U. S. 726.28 For the Court’s approach contemplates the selective interdiction of those anticompetitive state regulatory measures that are deemed not “central” to the limited range of regulatory goals considered “imperative” by the federal judiciary.
Henceforth, a state-regulated public utility company must at its peril successfully divine which of its countless and interrelated tariff provisions a federal court will ultimately consider “central” or “imperative.” If it guesses wrong, it may be subjected to treble damages as a penalty for its compliance with state law.
Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N. Y. U. L. Rev. 693, 728 (1974).
Goldfarb v. Virginia State Bar, 421 U. S. 773, 788.
The progenitor of that doctrine in this Court was Olsen v. Smith, 195 U. S. 332, a decision relied on by Parker to support the *616proposition that when a State, acting as sovereign, imposes a restraint on commerce, that restraint does not violate the Sherman Act. Parker v. Brown, 317 U. S., at 352. Olsen involved a challenge to the validity of a Texas law fixing the charges of pilots operating in the port of Galveston and prohibiting all but duly commissioned pilots from engaging in the pilotage business. The Court rejected the argument that the Texas pilotage statutes were “repugnant ... to the laws of Congress forbidding combinations in restraint of trade or commerce,” 195 U. S., at 339:
“The contention that because the commissioned pilots have a monopoly of the business, and by combination among themselves exclude all others from rendering pilotage services, is also but a denial of the authority of the State to regulate, since if the State has the power to regulate, and in so doing to appoint and commission, those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the State are alone allowed to perform the duties devolving upon them by law. When the propositions just referred to are considered in their ultimate aspect they amount simply to the contention, not that the Texas laws are void for want of power, but that they are unwise. If an analysis of those laws justified such conclusion — which we do not at all imply is the case— the remedy is in Congress, in whom the ultimate authority on the subject is vested, and cannot be judicially afforded by denying the power of the State to exercise its authority over a subject concerning which it has plenary power until Congress has seen fit to act in the premises.” Id., at 344^345.
If Parker v. Brown, supra, could be circumvented by the simple expedient of suing the private party against whom the State’s “anti-competitive” command runs, then that holding would become an *617empty formalism, standing for little more than the proposition that Porter Brown sued the wrong parties.
Mr. Justice Blackmun in a separate opinion today states that he sees “no reason to disapprove the holding of Parker” ante, at 613 n. 5, but then proceeds to do precisely that. The holding in Parker was that “[t]he state in adopting and enforcing the prorate program . . . imposed [a] restraint as an act of government which the Sherman Act did not undertake to prohibit.” 317 U. S., at 352. Mr. Justice Blackmun’s position is that the Sherman Act does prohibit all state-imposed restraints which do not satisfy the Sherman Act’s “rule of reason” — a view quite different from the holding in Parker. The fact that the result in Parker could have been reached by a different route — by a holding, for instance, that the prorate restraint was “reasonable” within the meaning of the Sherman Act or was impliedly exempted by the Agricultural Marketing Agreement Act of 1937 — is simply irrelevant.
I am puzzled by Mr. Justice Blackmun’s willingness to emasculate Parker, which the Court indicated to have continued vitality just this Term. See Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U. S. 748, 770. It seems to me that such a step is inconsistent not only with the legislative history of the Sherman Act but also with well-settled principles of stare decisis applicable to this Court’s construction of federal statutes. See Edelman v. Jordan, 415 U. S. 651, 671 n. 14. If those principles preclude the reconsideration of an antitrust exemption which is in every sense an “aberration” and an “anomaly,” Flood v. Kuhn, 407 U. S. 258, 282, then a fortiori they preclude the re-examination of an exemption that coincides with a clear expression of congressional intent.
A different approach is, of course, called for in interpreting this Court’s summary dispositions of appeals. See generally Hicks v. Miranda, 422 U. S. 332, 345 n. 14; Port Authority Bondholders *618Protective Comm. v. Port of New York Authority, 387 F. 2d 259, 262 (CA2).
California’s argument began with a statement of the principle that the Federal Government and the States — “sister sovereignties,” Supplemental Brief for Appellants 35 in Parker v. Brown, O. T. 1942, No. 46 — are each “supreme” when legislating “within their respective spheres.” “The subject of Federal power is still ‘commerce,’ — not all commerce, but commerce with foreign nations and among the several states.” Id., at 35-37. Incorporating by explicit reference its preceding argument with respect to whether the Federal Agricultural Adjustment Act of 1938 pre-empted the California statute, id., at 38, and proceeding from the premise that the subject matter of the California law was intrastate commerce within the jurisdiction of the State, California contended that “it should never be held that Congress intends to supersede or suspend the exercise of the police powers of the States unless its purpose to effect that result is clearly manifested.” Ibid. California added that “[s]uch an intent should be even more clear and express when it serves not only to suspend the police powers, but to subject the sovereignty of the State to the inhibition and penalties of Congressional action.” Id., at 38-39.
The plurality’s position today seems to be that because the State of California placed particular emphasis on the fact that the proscriptions of the Sherman Act, if applicable, would run directly against the State, California’s argument in the first part of its brief was simply and solely that “Congress never intended to subject a sovereign State to the provisions of the Sherman Act ...” Ante, at 588. Yet, as the preceding quotations show, California’s argument in the first part of its brief dovetailed two interrelated themes: First, that state regulation of intrastate commerce was not pre-empted by the Sherman Act and, second, that the framers of the Sherman Act did not intend its proscriptions to run directly against the sovereign States. It was" the first of these themes that California deemed primary. Near the close of the first part of California’s brief appeared the following passage:
“To hold the State within the prohibition of the Sherman Act in the present instance would result in prohibiting it from exercising its otherwise valid police powers. This Court has repeatedly and emphatically stated that ‘it should never be held that Congress *620intends to supersede or by its legislation suspend the exercise of the police powers of the State, even when it may do so, unless its purpose to effect that result is clearly manifested.’ ” Supplemental Brief for Appellants 47-48 in Parker v. Brown, O. T. 1942, No. 46 (footnote omitted).
This distinction was properly drawn, as is apparent from decisions in the labor law context. A State or political subdivision thereof is not normally subject to the prohibitions of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. See, e. g., NLRB v. Natural Gas Utility Dist., 402 U. S. 600. But it certainly does not follow that sovereign enactments of the State may not be deemed pre-empted by the federal legislation. San *621Diego Unions v. Garmon, 359 U. S. 236; Garner v. Teamsters, 346 U. S. 485.
The Solicitor General began his analysis with the following statement:
“A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation.” Brief for United States as Amicus Curiae 63 in Parker v. Brown, O. T. 1942, No. 46.
He then acknowledged that “[i]t seems clear that Congress, when it enacted the statute, did not intend to deprive the states of their normal ‘police’ powers over business and industry. . . . For example, in the field of public utilities, a state can undoubtedly regulate rates without running afoul of the Sherman Act notwithstanding the fact that the rate regulation may embrace interstate commerce.” Id., at 63-64 (footnotes and citations omitted). But, the Solicitor General continued, “[although Congress plainly did not regard local laws in these fields as incompatible with the Sherman Act, we believe that the same cannot be said when the state statute is designed directly to control the competitive aspects of an industry in a manner which will have more than local effect.” Id., at 64r-65. This was the critical portion of the Solicitor General’s argument, which sought to draw a delicate distinction between acceptable police power legislation, such as public utility regulation, and pre-empted police power legislation, such as that designed explicitly to suppress competition affecting interstate commerce.
The only exception is where the attempt to influence state regulation is a “sham” aimed at “harass [ing] and deter [ring] . . . competitors from having 'free and unlimited access’ to the agencies and courts . . . .” California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 515.
The Court’s reliance on Jackson v. Metropolitan Edison Co., 419 U. S. 345, is misplaced. There the Court held that a utility’s discontinuance of service to a customer for nonpayment of bills was not “state action” sufficient to trigger the protections of the Due Process Clause of the Fourteenth Amendment. The petitioner had argued that because the State Public Utility Commission had approved that practice as a part of the respondent’s general tariff, the termination was “state action” for Fourteenth Amp.nrlTnp.nt purposes. Id., at 354. The Court disagreed, holding as follows:
“The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state regulatory *625scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body. Approval by a state utility commission of such a request from a regulated utility, where the Commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the Commission into 'state action.’ At most, the Commission’s failure to overturn this practice amounted to no more than a determination that a Pennsylvania utility was authorized to employ such a practice if it so desired. Respondent’s exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so 'state action’ for purposes of the Fourteenth Amendment.” Id., at 357 (footnote omitted).
This constitutional holding has no bearing on whether a utility’s action in compliance with a tariff which it proposed is exempt from Sherman Act liability. The latter is a question of legislative intent, not constitutional law, and must be answered on the basis of a separate line of authority — namely, decisions such as Parker and Noerr which have construed the Sherman Act.
1 disagree with The Chief Justice’s conclusion that Michigan’s policy is “neutral” with respect to whether a utility should have a lamp-exchange program. See n. 26, infra. Moreover, I think it is apparent that insistence on statutory articulation of a state “purpose” to regulate activities performed incident to the provision of a “natural monopoly” service will lead to serious interference with state regulation. See ibid.
As the Court noted in Noerr, the scheme at issue in Parker required popular initiative. 365 U. S., at 137-138, n. 17. And as it further noted, Parker itself expressly rejected the argument that the necessity for private initiative affected the “program’s validity under the Sherman Act . . . .” Id., at 137.
The Court seems to indicate at one point that it would be improper to “superimpose” antitrust liability on state regulatory schemes aimed at suppressing competition and raising prices. See ante, at 595 (“Unquestionably there are examples of economic regulation in which the very purpose of the government control is to avoid the consequences of unrestrained competition. Agricultural marketing programs, such as that involved in Parker, were of that character”). But some state regulation, the Court continues, aims not at suppressing competition, but rather at duplicating the effects of competition — i. e., keeping prices down. With respect to state regulation of the latter type, the state scheme will not afford an exemption to the extent the regulated party is engaged in “business activity in competitive areas of the economy.” Ante, at 596 (footnote omitted).
This rationale will not bear its own weight. If compliance with a state program aimed at suppressing competition in nonmonopoly industries — i. e., raisin production — cannot give rise to Sherman Act liability, then surely compliance with a state program aimed at controlling the terms and conditions of service performed incident to the provision of a “natural monopoly” product cannot give rise to treble damages.
Slater, Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 Nw. U. L. Rev. 71, 84 (1974). See, e. g., 20 Cong. Rec. 1169 (1889) (remarks of Sen. Reagan); id., at 1458 (remarks of Sen. George); 21 Cong. Rec. 2467 (1890) (remarks of Sen. Hiscock); id., at 2469-2470 (remarks of Sen. Reagan) ; id., at 2566 (remarks of Sen. Stewart); id., at 2567 (remarks of Sen. Hoar); id., at 2600 (remarks of Sen. George).
Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743 n. 2.
H. R. Rep. No. 1707, 51st Cong., 1st Sess., 1 (1890) (emphasis added).
20 Cong. Ree. 1167 (1889).
21 Cong. Rec.2456 (1890) (emphasis added).
Id., at 2460.
Id., at 2456.
See Munn v. Illinois, 94 U. S. 113, 125 (“Under [the police] powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property”).
E. g., United States v. Frankfort Distilleries, 324 U. S. 293, 298; United States v. Underwriters Assn., 322 U. S. 533, 558; Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 435. See also United States v. American Bldg. Maint. Industries, 422 U. S. 271, 278; Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 194-195.
See Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 743 n. 2; Gulf Oil Corp. v. Copp Paving Co., supra, at 201-202; Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219, 229-235.
Slater, supra, n. 14, at 85.
Mr. Justice Blackmun expresses the view that the Court answered, the question of “what was to be the result if the expanding *638ambit of the Sherman Act should bring it into conflict with inconsistent state law” in Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, and that the answer it gave was that any state regulatory statute “inconsistent” with the judicially expanded Sherman Act jyas pre-empted. Ante, at 606. But the opinion in Schweg-mann — which did not purport to modify or overrule Parker — is most plausibly read as resting on a post-1890 expression of congressional intent, the Miller-Tydings Act. See infra, at 639. Even assuming, however, that Schwegmann conflicted with Parker, then surely the most significant aspect of that conflict is that Congress did not allow it to persist, as Schwegmann was soon legislatively overruled by the enactment of the McGuire bill, 66 Stat. 632, 15 U. S. C. §§ 45 (a) (2)-(5).
The Court states at one point that the omission of a “direct reference to light bulbs” in the statute creating the Michigan Public Service Commission indicates that the State’s policy is “neutral on the question whether a utility should, or should not, have such a program.” Ante, at 584, 585. This statement seems to suggest that the Court considers the specificity with which a state legislature deals with particular regulatory matters to be relevant in determining whether agency action respecting such matters represents a sovereign choice, entitled to deference under the Sherman Act.
This suggestion overlooks the fact that Michigan’s policy, far from being “neutral,” is, as announced in Mich. Comp. Laws §460.6 (1970), to vest an expert agency “with complete power and jurisdiction to regulate all public utilities in the state . . . .” That agency is “vested with power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service and all other matters pertaining to the formation, operation or direction of such public utilities. It is further granted the power and jurisdiction to hear and pass upon all matters pertaining to or necessary or incident to such regulation of all public utilities, including electric light and power companies . . . .” Ibid, (emphasis added).
If a state legislature can ensure antitrust exemption only by eschewing such broad delegation of regulatory authority and incorporating regulatory details into statutory law, then there is a very great risk that the State will be prevented from regulating *639effectively. Eor as this Court has repeatedly observed in another context, “[delegation . . . has long been recognized as necessary in order that the exertion of legislative power does not become a futility. . . . [T]he effectiveness of both the legislative and administrative processes would become endangered if [the legislature] were under the . . . compulsion of filling in the details beyond the liberal prescription [of requiring the making of ‘just and reasonable’ rates and regulating in the ‘public interest’] here. Then the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues.” Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 398.
The decision in Schwegmann rested primarily on a detailed analysis of the legislative history of the Miller-Tydings Act. 341 U. S., at 390-395.
See Verkuil, State Action, Due Process and Antitrust: Refections on Parker v. Brown, 75 Col. L. Rev. 328 (1975).