with whom CUMMINGS, Chief Judge, and HARLING-TON WOOD, Jr., Circuit Judge, join, dissenting.
I join enthusiastically in Judge Wood’s able dissent on the discovery branch of this case while, at the same time, I write separately in dissent principally on the plurality’s 1 res judicata holding.
We are presented here with a Sherman Act claim against what may for present purposes be characterized as a dominant national trade association.2 As Illinois Supreme Court Justice Seymour Simon, then of the Illinois Appellate Court, has said,
[Dr. Treister] seeks admission to a prestigious medical society, not to a social, religious, or fraternal organization like an Elks Club ... or the Order of the Eastern Star.... The Academy holds itself out as the sole legitimate organization of its kind in the profession, and is widely recognized as such. It is a monopoly; and it is affiliated with the A;M.A., itself a monopoly.... The Academy is more like a government than like a truly voluntary combination, and may justly be treated accordingly.
Treister v. American Academy of Ortho-paedic Surgeons, 78 Ill.App.3d 746, 759-67, 33 Ill.Dec. 501, 600, 602, 605, 396 N.E.2d 1225, 1234, 1236, 1239 (1979) (Simon, J., dissenting).
When a large national organization with a membership including the vast majority of . the board-certified orthopaedic surgeons of the country conducts its affairs, one may assume that its interests cover the gamut of economic, as well as medical, concerns of the membership.3 Whatever differences may otherwise exist, at least for antitrust purposes, the Academy seems comparable with other great national trade or professional associations such as the American Bar Association, the Cement Manufacturers Protective Association4 and the American Iron and Steel Institute.5
I wonder whether the majority would extend the solicitude which it feels for the secret files of the Academy if one. of these other trade associations were the. defendant. I see no reason why the principles announced here would not apply equally to such a case. I believe the Academy is more like the American Iron and Steel Institute — both organizations are comprised of the practitioners of a particular trade, business or profession (who are potential corn-*1174petitors) — than the Academy is like the National Association for the Advancement of Colored People. Yet the majority discusses NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), as if it had significant bearing on the case at bar. Supra, at 1159. The NAACP, like the John Birch Society, is an advocacy organization, having occupationally diverse members committed to the same (relatively controversial) ideas and causes. First amendment concerns with respect to such organizations are obvious. The members of the Academy, on the other hand, have in common, like other trade groups, their occupation, business or profession. Like other such groups, the Academy presumably promotes the betterment and serves the occupational interests of its members.
The majority cites no case which recognizes any “interest” under the first amendment, or its penumbra, in secret proceedings of trade or professional associations. At oral argument, counsel for defendants indicated that the same, secrecy interest belongs to all private organizations — including country clubs. I believe there are serious dangers in recognizing substantial rights to secrecy in organizations which bring together members of the same trade, occupation or profession, where no legal privilege exists. Cf. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir.1981) (per curiam). When people who make their living in the same way join together — however exalted their purposes — it is the height of naivete to suggest that their association is without economic significance. Certainly the antitrust laws have never indulged in any such unrealistic assumption. As Justice Simon has said:
The secrecy in which ... associations [like the Academy] have historically cloaked themselves is therefore little proof of its value for legitimate purposes, and is open to sustained abuse.... [T]he power of groups like the Academy is so great, so self-perpetuating, so little checked by private forces, and has such potential for abuse, that the balance of interests favors judicial oversight.
78 Ill.App.3d at 766, 33 Ill.Dec. at 605, 396 N.E.2d at 1239 (Simon, J., dissenting). In this connection I note that our recent decision in EEOC v. University of Notre Dame Du Lac; 715 F.2d 331, 340 (7th Cir.1983), involving the confidentiality of peer review documents, specifically recognized a qualified academic freedom privilege.6
The plurality, with Judge Flaum concurring, has, however, seen fit to dispose of this case not primarily on the basis of the right to secrecy but rather on grounds of res judicata. At least the plurality describes the grounds of its ruling as “res judicata,” although the application here is hardly recognizable in terms of the well accepted principles of that doctrine. The plurality concedes that, as Justice Potter Stewart noted in his dissent from the first panel opinion, Marrese v. American Academy of Orthopaedic Surgeons, 692 F.2d 1083, 1099 (7th Cir.1982) (Stewart, J. (Retired), dissenting), reh’g granted and vacated (1983), the overwhelming weight of authority is against it. See, e.g., Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 274 (7th Cir.1981), cert, denied, 455 U.S. 921,102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Hayes v. Solomon, 597 F.2d 958, 984 (5th Cir.1979), cert, denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Kurek v. Pleasure Driveway & Park District of Peoria, 583 F.2d 378, 379 (7th Cir.1978) (per curiam), cert, denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979); Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (2d Cir.1968). The plurality opinion is in fact an aggressive tour de force — going well beyond existing law — in the abdication of federal jurisdiction.
*1175Since the plurality opinion seems to take us so far from the terra firma of solid precedent and facts of record, let us first turn to fundamentals. An old and honored formulation of the res judicata defense in barring a subsequent suit is that “a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies ....” Southern Pacific Ry. Co. v. United States, 168 U.S. 1, 48-9, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897). See also Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). The plurality opinion, however, does away with the requirements that there be identity of causes of action and that the first judgment be rendered by a court jurisdictionally competent to hear the claim which is later held to be barred.
This is judicial activism in the service of judicial abdication. We are told, in effect, that state and federal courts are busy, and it will save everyone’s time if the plaintiffs are refused the right to bring their Sherman Act claim in the only court which can hear it. It would surely save us even more time if the federal courts refused to hear all claims on the theory that the state courts could hear ones that are similar. With all respect, I am afraid we are simply refusing to do our job as federal judges in circumstances where the well-accepted rules plainly require us to do it.
In determining when to apply res judica-ta, the plurality opinion formulates a new “federal rule” that a federal court should give a prior state court judgment greater preclusive effect than would a state court. But the federal courts, in fact, are bound under the “full faith and credit” clause of the Constitution and 28 U.S.C. § 1738 to give the same res judicata effect to a prior state court judgment as would another court of that same state. In this situation, “more” is clearly not “better.” The plurality does concede that a federal antitrust claim could not arise in state court and that therefore the outcome of such a scenario could not specifically decide the case before us. Nonetheless, because the plurality continues to advocate a “federal rule” which would be more preclusive than state practice, it is appropriate for me to address the reasons why a state law test should govern.
The plurality’s new rule is contrary to section 1738 as well as to the purposes underlying “full faith and credit.” As Justice White has written,
[i]t has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken.
Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982). This is the Court’s understanding of Congress’ intent and the Kremer holding reflects the plain command of section 1738.7
The plurality, however, argues that section 1738 ought not prevent a federal court from giving a state judgment more effect in a federal suit than the courts of the state would give it in a state suit. A federal court does not undermine the authority of a state’s courts when it holds that a state judgment bars a federal suit.
Supra, at 1154 (emphasis in original) (citations omitted). Most of the authority cited by the plurality for this proposition does not specifically discuss this issue and predates the two recent Supreme Court decisions, Kremer and Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), which do address the issue. The plurality also cites Federal Deposit Insurance Corp. v. Eckhardt, 691 F.2d 245 (6th Cir.1982), which in fact holds that the preclusive effect of a prior judgment is determined by the law of the rendering forum (in that case, the state *1176of Ohio). The Sixth Circuit emphasized the new trend supporting this holding, in stating, “the emerging rule is that the preclu-sive effect of a valid judgment is to be determined by the law of the system which rendered the judgment.” Id, at 247. See also General Foods Corp. v. Massachusetts Department of Public Health, 648 F.2d 784 (1st Cir.1981). A perceptive commentator has recently endorsed this modern trend:
A different rule is emerging today, and an even stronger one will prevail in the future. It will read something like this:
A valid judgment rendered in any judicial system within the United States must be recognized by all other judicial systems within the United States, and the claims and issues precluded by that judgment, and the parties bound thereby, are determined by the law of the system which rendered the judgment.
Degnan, Federalized Res Judicata, 85 Yale L.J. 741, 773 (1976) (emphasis in original).
In addition to the recent authority contradicting the plurality’s proposed rule, there are important policy considerations which also militate against it. Deference to state courts is not the only value to be served by the res judicata doctrine. Even the commentator whom the plurality opinion cites approvingly recognizes that there are other values at stake when making a res judicata determination:
[T]his reading of section 1738 [to allow greater preclusive effect] might offend state policies limiting the res judicata effect of judgments, and there may be due process problems in giving a judgment greater effect than the court entering it intended ....
Currie, Res Judicata: the Neglected Defense, 45 U. Chi.L.Rev. 317, 327 (1978). The plurality has thus overlooked the policy interests of the rendering forum in predicting the preclusive effect of its own judgments. In addition, by rejecting the Illinois law of res judicata in the guise of improving upon it, the plurality has undermined the Illinois law to which it purports to defer.
The significance of section 1738 and its interpretation in Kremer is that a federal court, in determining the res judicata effect of a prior state court judgment, should apply the criteria of the state’s res judicata law. It would be incorrect to limit the question strictly to the outcome of a federal antitrust claim in state court because, as the plurality concedes, such a suit would be dismissed for lack of jurisdiction. Kremer still dictates, however, that the appropriate issue is the application of the principles of Illinois res judicata law to the current case.8
*1177Illinois res judicata law thus requires that, in order to bar a subsequent claim which was not raised in the first suit, the first court must have had jurisdiction to hear the subsequent claim.
The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action. (People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851).
Rotogravure Serv. v. R.W. Borrowdale Co., 77 Ill.App.3d 518, 524, 32 Ill.Dec. 762, 767, 395 N.E.2d 1143,1148 (1978) (emphasis supplied).9 Apparently, no Illinois judge has questioned the jurisdictional competency rule; any departure from the rule has presumably been deemed so unfair and illogical as to require no discussion. Therefore, because the Illinois courts did not have jurisdiction to hear the plaintiffs’ Sherman Act antitrust claim, the prior Illinois suit cannot bar the subsequent federal suit.
Turning from state law, I shall now examine the plurality’s suggestion that the plaintiffs’ federal antitrust claim, as a matter of federal law, should be barred in federal court because they should have brought either a federal or a state antitrust claim in state court simultaneously with their common law claims.10 However, a federal antitrust claim brought in an Illinois court would certainly have been dismissed for lack of jurisdiction. The plurality laments the fact that federal courts have long asserted exclusive jurisdiction under the federal antitrust statutes. Blumenstock Bros. Advertising Agency v. Curtis Publishing Co., 252 U.S. 436, 440, 40 S.Ct. 385, 386, 64 L.Ed. 649 (1920); Kurek v. Pleasure Driveway & Park District, 583 F.2d 378 (7th Cir.1978). Ultimately, however, the plurality acknowledges that this court, even in the course of its more creative efforts at narrowing its own powers, must accept this rule as a given.11
*1178In his dissent from the first panel decision in this case, Justice Stewart observed that the federal common law of res judicata bars the relitigation of all those claims — but only those claims — which were or could have been brought in a prior litigation between the same parties arising from the same cause of action. As the Supreme Court said in Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981):
There is little to be added to the doctrine of res judicata as developed in the case law of this Court. A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Commissioner v. Sunnen, 333 U.S. 591, 597 [68 S.Ct. 715, 719, 92 L.Ed. 898] (1948); Cromwell v. County of Sac, 94 U.S. 351, 352-353 [24 L.Ed. 195] (1877).
Id. at 398, 101 S.Ct. at 2428.
. By definition, the “could have been raised” standard necessarily entails the jurisdictional competency of the court that decided the prior litigation to rule on the merits of any such possible other claims. Sherman Act claims are within the exclusive jurisdiction of the federal courts; they simply cannot be brought in the courts of Illinois.
The plurality also raises the possibility that the plaintiffs, unable to bring their federal claim in state court, should have brought a state antitrust claim. The plurality argues that the alleged near identity of such a state antitrust claim with a Sherman Act claim should bring into play the application of res judicata to the present federal claim. Never in recent times — with only one exception — has a federal court held a federal antitrust claim barred by the availability or actual prosecution of a state antitrust action.12
The plurality rejects the myriad precedents against a state action as a bar ostensibly because most of these decisions predate the Fourth Circuit’s departure from this *1179rule in Nash County Board of Education v. Biltmore Co., 640 F.2d 484 (4th Cir.1981). In the one decision subsequent to Nash, the Ninth Circuit declined to follow the Fourth Circuit decision since it was easily distinguishable. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 818 n. 1 (9th Cir.1982), cert, denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982). However, the Restatement (Second) of Judgments is explicit on the very problem presented in Nash and in the case before us.
A Co. brings an action against B Co. in a state court under a state antitrust law and loses on the merits. It then commences an action in a federal court upon the same facts, charging violations of the federal antitrust laws, of which the federal courts have exclusive jurisdiction. The second action is not barred.
Restatement (Second) Of Judgments §. 26(l)(c) comment e, illustration 2 (1982).13
In Nash, the single modern exception to the rule that a state action cannot bar a Sherman Act claim, the plaintiff school board attempted to bring a federal antitrust claim. This claim was held to be barred by res judicata because of an earlier state antitrust claim prosecuted by the state attorney general — a privy of the plaintiff. Very importantly for the equities of the matter, the earlier case had been settled with a consent decree accepted by all parties to the litigation. In holding that the federal suit was barred, the court also noted that the North Carolina antitrust statute was identical to the comparable federal statute except for the latter’s requirement of involvement in interstate commerce. 640 F.2d at 490.
There are at least four persuasive reasons for refusing to follow Nash. First, the Nash court used language apparently recognizing that the court hearing the first claim must have had jurisdiction to hear the second claim before res judicata could be applied. Nonetheless, in holding that the state antitrust claim barred the federal claim, the Nash court in effect eliminated this jurisdictional competency requirement from the res judicata formulation which the Supreme Court had once again made explicit in its 1981 decision, Federated Department Stores, supra. The Nash court thus misconstrued the Supreme Court’s res judi-cata formulation in Montana and Federated Department Stores and went on to base its analysis on the incorrect thesis that an exclusively federal action and a state court action could ever be the same “cause of action” and that the latter could thereby bar the former.
Second, the special and strong equities of Nash induced the Fourth Circuit to overlook overwhelming federal and other authority, as well as crucial and long-honored policies. Nash is a hard case that has made bad law. The plurality here fails to note that the first lawsuit in Nash had been terminated by a settlement and a consent decree involving the very antitrust allegations that formed the basis of the federal suit. This presented the strongest possible equitable case for claim preclusion against a subsequent federal treble damages antitrust action brought by a party in privity.14 The termination of the first lawsuit by a settlement and consent decree is the true rationale underlying the Nash decision, and Nash is, therefore, not in fact in conflict with the holding which I think appropriate here. In the case before us, Drs. Treister and Marrese never obtained a consent decree in their state common law actions. In fact, these plaintiffs never got their case beyond the pleading stage. Instead, the state court merely found (over Justice Simon’s persuasive dissent) that the doctors had failed to allege an essential element, economic necessity, of their common law claim.
*1180Third, there is in the case before us a lack of identity between the Illinois antitrust statute and the Sherman Act. The plurality here concedes that in Nash the state statute was a “mirror image” of the federal. Supra, at 1153. For one thing, the liability provisions of the Illinois statute (unlike that of North Carolina) are on their face different from the Sherman Act provisions. In addition, the federal statute grants treble damages to a successful plaintiff as a matter of right. The statute in Nash did the same. The Illinois statute, however, permits damages in a “rule of reason” case up to a treble amount only at the discretion of the trial court and when-the violation was willful. Ill.Rbv.Stat. ch. 38, § 60-7(2) (1981). Although not considered a significant distinction by the plurality,15 the availability and structure of monetary damages may make every difference in the world in a plaintiff’s decision to pursue a particular remedy. The Nash court itself relied on this factor to distinguish its decision from the long line of cases which hold that a federal antitrust claim is not barred by the availability of a state antitrust claim.
In this suit, however, under the state statute, modeled as it is after the federal statute and offering the same right to recover treble damages as the federal statute, there is not the ground for denying res judicata effect to the state court judgment stated in [Hayes v. Solomon, supra] and [Cream Top Creamery v. Dean Milk Co., supra, n. 12].
640 F.2d at 490.16
There is a delicate balance in res judicata doctrine between the undesirability of relit-igating the same claim and the desirability of having a chance to litigate a particular claim at least once. To ignore Nash’s reliance upon absolute identity of claims and to move on to mere similarity of claims is to lose all coherence and predictability in the law of res judicata, as well as to visit manifest injustice upon litigants.
Fourth, the Fourth Circuit in Nash did not even suggest that a prior state court action, as different from the subsequent exclusively federal action as were the prior state court actions here, could constitute the same “cause of action.” I should think a minimal concern for fairness here ought to prevent us from following the Nash approach. As the district court has said with respect to the present case:
Nash considers that a plaintiff who “choos[es] to file the state action on the same cause of action [has] voluntarily waived the benefit, if any, of a federal forum” (640 F.2d at 492) — and that simply does not apply here.
Marrese v. American Academy of Orthopaedic Surgeons, 524 F.Supp. 389, 394 (N.D. Ill.1981).
Although the plurality displays an impressive conceptual virtuosity in pursuing a sort of free-floating theory of res judicata, it goes well beyond any precedent or well-accepted explanation. The plurality rationalizes its position by invoking certain policy goals which it purports to further, yet it both overlooks other policies, which are at least as important, and subverts the very policies which it professes to advance.
The first and perhaps most crucial policy at issue here is the one underlying the *1181Sherman Antitrust Act. 15 U.S.C. §§ 1 et seq. The Sherman Act is our nation’s “comprehensive charter of economic liberty” and embodies, together with its judicial interpretations, the fundamental rules of competitive conduct in our national market economy. Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958).
It is not difficult to see ... that a congressional intent that the Sherman Act reach as. far as the Constitution permits would embrace virtually any economic act in our infinitely interconnected national economy .... Ours is a unitary national economy. With a few exceptions for contrary state and federal law, ... the Sherman Act commands a competitive regime for which state borders are irrelevant .... [T]he economy is a seamless web in which everything affects everything. What may appear to be relatively local will, in fact, ultimately affect similar or related goods or services moving into or out of a market.
1 P. Areeda and D. Turner, Antitrust Law 229 (1978). If the national economy is a “seamless web,” the possible bias of state courts toward local industries and toward local trade customs makes it undesirable that they administer the Sherman Act. In addition, a uniform interpretation of the antitrust laws in the context of uniform rules of federal practice and of discovery is necessary to a consistent and predictable application of national policy toward competition. 18 C. Wright, A. Miller, E. Cooper, Federal Practice And Procedure § 4470, at 676 (1981) (citations omitted).
Federal judges are relied upon to achieve uniform and expert interpretation of the law in a way that cannot be achieved by Supreme Court review of state decisions. Federal procedure is relied upon to achieve accurate resolution of disputed factual matters, with particular emphasis on the availability of jury trial and searching discovery.
The plurality suggests that the reason for exclusive federal jurisdiction must be “a judgment that only federal judges can decide antitrust cases intelligently .... ” But the plurality’s protestations of respect for the mental prowess of state judges are beside the point and prove too much. If the intelligence of state judges were the only limitation on the abdication of federal jurisdiction, all federal claims could be tried in state court and the federal courts could go out of business.
Allowing the different state courts to adjudicate federal antitrust issues would tend to result in 50 different interpretations of the antitrust statutes.17 Such a state of affairs is inconsistent with the goal of a national regime of competition. Without uniform enforcement in the federal courts, a corporation selling in a national market could, for example, find its prices deemed predatory in one state and not in another. The gain which the plurality may perceive in judicial economy (which is entirely speculative) could be lost many times over through a loss of uniformity and certainty in the application of the antitrust laws, as well as through a need to relitigate the legitimacy of the same practice several times in different state courts.
Second, an important policy goal which the plurality ascribes to Federated Department Stores and Nash —the lightening and efficient handling of the judicial caseload— is not furthered by the plurality decision here. In fact, the plurality decision may produce a result directly opposite to its professed intentions. Under the views of res judicata espoused both by the plurality and by Judge Flaum, plaintiffs with both state and federal claims will be compelled to file claims in both courts at the same time; *1182furthermore, the cautious plaintiff will be inclined to file all state claims as pendent to a federal claim — the strategy which the plurality recommends. Not only will this require federal district courts to adjudicate many state claims and thus further burden the federal system, but it will specifically require federal judges to decide numerous questions of state law.18 This result is surely not consistent with the plurality’s presumed concern for deference to state courts. In sum, this approach will backfire by moving litigation into federal court, by strengthening the federal role in state matters and by doing nothing to diminish the overall volume of litigation.
Again, as we have noted, this is distinctly not a question of relative intelligence of state and federal judges, but it may be a question of relative expertise. Just as federal judges may have greater experience in the adjudication of federal antitrust claims, so state judges develop more extensive experience in thé law of their own state. From this standpoint, there would be no practical advantage in trying Sherman Act claims in state court or state common law claims in federal court. Further, plaintiffs should have the right to choose their forum, particularly when issues of relative expertise are at stake, without their choice being arbitrarily dictated under a rigid doctrine of federal abstention. As Justice Stewart wrote in his dissent to the first panel opinion:
[t]his. expansion of the doctrine of res judicata contradicts the principle, fundamental to our legal system, that parties, not judges, choose the forum in which to resolve their differences and frame the claims advanced in their pleadings.
692 F.2d at 1100.
The plurality approach ignores the possibility that the plaintiff has identified one claim which' he believes to be easier to prove than the others. Here the plaintiffs brought a common law claim in state court, which certainly seems plausible to me but which bears no relation to the antitrust laws. Plaintiffs pursued this course in the expectation, I presume, that they would have an opportunity to bring the federal antitrust claim at some other time, if that proved necessary. I do not see how requiring them to bring the federal claim at the outset — or risk losing it — conserves the resources of the federal court.
Third, I think we should consider seriously the ramifications of the kind of freewheeling res judicata analysis employed by the plurality. In considering whether the liability and damages standards are the same under the Illinois antitrust statutes as under the federal antitrust statutes, the plurality says:
The question should be answered not in gross but with reference to the specific provisions of the state and federal statutes, read in light of the specific allegations of the complaint. If, applied to the particular case, the state and federal standards are the same, it should not matter that applied to some other case they might be different.
Supra, at 1155.
The plurality then conducts a quite speculative analysis of the plaintiffs’ claims under the state statute and their claims under the federal statute. The plurality tracks possible outcomes with respect to liability under both, as well as the respective remedies available under the state and federal statutory schemes. At last, the plurality concludes that the standards of liability would have been the same in a state suit as in a federal suit and that plaintiffs were probably not much interested in the more generous damages provisions of the federal scheme. Supra, at n. 15.
This sort of speculation (or second-guessing) about the plaintiffs and their thoughts and intentions is so conjectural as to resemble more a flight of fancy than an exploration of fact. It would be manifestly impractical for us to guess in every case, for example, whether or not the plaintiffs “re*1183ally” needed or “really” sought damages as a basis for determining whether their state action should preclude their federal action. This is surely not the path .to certainty in the law, and lack of certainty is a major contributor to unnecessary lawsuits. Nor should we retroactively dictate a party’s litigation strategy by determining when and in what court he should have brought his claims.
Fourth and finally, there is a basic problem of fairness in the approach advocated by the plurality. The plurality may have concluded in advance of trial (and even of discovery) that the defendant is a wholly innocent vehicle of professional enlightenment, while the plaintiffs are vengeful malcontents seeking to harass their betters. On this basis, the plurality thinks it appropriate to construct a new law of res judica-ta to employ the plaintiffs’ abortive invocation of state law as a barrier to entry into the federal courts. Dr. Treister has alleged that he was blackballed because he had testified for plaintiffs in medical malpractice suits. If true, this is a claim that federal courts should presumably hear; see Williams v. St. Joseph Hospital, 629 F.2d 448 (7th Cir.1980) (allegation that doctors conspired to refuse to treat patients who instigated malpractice suits stated a cause of action under the federal antitrust statutes). We, of course, will never know whether Dr. Treister’s allegation is even partly substantiated. Discovery has been blocked in both state court and federal court, and, if Dr. Treister or Dr. Marrese has any just claims, they will be heard by no one.
The plurality is concerned about the possible hardship to those who vetoed the plaintiffs’ membership applications (or their informants) if the plaintiffs should identify them and subsequently take their depositions. Nothing is said about the hardship to Drs. Marrese and Treister of being excluded without stated reason from this powerful association of orthopaedic surgeons, which bears a coveted seal of approval. Harassment by discovery is to be deplored but not more so than arbitrary and unjust denial of access to the federal courts.
I therefore respectfully dissent.
. The opinion authored by Judge Posner is a majority opinion on the validity of the discovery order but a plurality opinion with respect to the res judicata issue. Therefore, as the context requires, I shall variously refer to this opinion as the majority or plurality opinion.
. See note 5 infra.
. In 1976, the Academy entered into a consent decree with the Federal Trade Commission, prohibiting the Academy’s further compilation or publication of “relative value scales” for pricing its members’ services. (R. 86, pp. 2-3 and Reference Exhibit). The FTC apparently contended that this activity of the Academy constituted a form of price-fixing. 88 F.T.C. 968 (1976).
. See generally Cement Manufacturers Protective Association v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925).
. The majority quarrels with my characterization of the Academy as a “trade association.” As noted infra, it is 'certainly one, prima facie, since the membership is defined by the occupation of the members — orthopaedic surgery. What it is exactly cannot be known at this early stage of the proceedings. I do not question the Academy’s commitment to superior medical care, professional enlightenment and education.
. At oral argument, counsel for the defendants expressly disclaimed any function of professional self-regulation (like peer review) for the Academy. Yet Justice Simon has said that “[t]he Academy functions largely as an informal accrediting body .... [T]he main advantage of membership appears to be the credential, the Academy’s endorsement, relied on by others.” 78 Ill.App.3d at 765, 396 N.E.2d at 1238 (Simon, J., dissenting).
. See also Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (§ 1738 requires “all federal courts to give pre-elusive effect to state court judgments whenever the courts of the state from which the judgments emerged would do so ... ”).
. Plaintiffs argue that an Illinois court would not bar a second suit based on the Illinois antitrust laws because Illinois courts employ a different test (based on similarity of evidence) to determine identity of causes of action. See Village of Northbrook v. County of Cook, 88 Ill.App.3d 745, 750, 43 Ill.Dec. 792, 796, 410 N.E.2d 925, 929 (1980); Olson v. Olson, 114 Ill.App.3d 28, 69 Ill.Dec. 769, 772, 448 N.E.2d 229, 232 (1983); Hilti, Inc. v. Griffith, 68 Ill. App.3d 528, 532-33, 24 Ill.Dec. 859, 861, 386 N.E.2d 63, 65 (1978); Rotogravure Serv. v. R.W. Borrowdale Co., 77 Ill.App.3d 518, 525, 32 Ill.Dec. 762, 767, 395 N.E.2d 1143, 1148 (1978); Treister Supplemental Brief at 10-18. I do not believe it is necessary here to consider the outcome under this similarity of evidence theory of such a suit in state court because this determination is not necessary to the conclusion that plaintiffs’ federal antitrust claim should not be barred in federal court. I note in passing, however, that in the decision cited by the plurality, Federal Deposit Insurance Corp. v. Eckhardt, 691 F.2d 245 (6th Cir.1982), the Ohio res judicata law applied by the Sixth Circuit involves a test which is close to that suggested by the plaintiffs as appropriate in Illinois: the existence of “a single or two distinct causes of action for res judicata purposes [is determined by] ‘[w]hether different proofs are required to sustain the two actions Id. at 248 (quoting Norwood v. McDonald, 142 Ohio St. 299, 311, 52 N.E.2d 67, 73 (1943)).
Further, if plaintiffs had appended a state antitrust claim to their federal antitrust claim brought in federal court, the federal court would evaluate the federal claim under the plurality’s new federal rule, while it would have to evaluate the state claim under Illinois res judicata law in accordance with the Rules of Decision Act, 28 U.S.C. § 1652, and the Erie doctrine. Vestal, Res Judicata/Preclusion by Judgment: The Law Applied in Federal Court, 66 Mich.L.Rev. 1723, 1728-31 (1968). This analysis could then lead to the anomalous result that the federal claim was precluded by the state court judgment but the state claim was not.
. See also Schmitt v. Woods, 73 Ill.App.3d 498, 499, 29 Ill.Dec. 498, 499, 392 N.E.2d 55, 56 (1979); Hilti, Inc. v. Griffith, 68 Ill.App.3d 528, 532, 24 Ill.Dec. 859, 861, 386 N.E.2d 63, 65 (1978); Kahler v. Don E. Williams Co., 59 Ill. App.3d 716, 718, 16 Ill.Dec. 927, 929, 375 N.E.2d 1034, 1036 (1978); and National Tea Co. v. Confection Specialties, Inc., 48 Ill.App.3d 650, 654, 362 N.E.2d 1150, 1153 (1977).
. The plurality says that the plaintiffs “waited till they had lost their state law suits and only then ... did they bring suit.” Supra, at 1152. This is certainly not true of Dr. Marrese, whose state court action was not dismissed until approximately one year after the filing of the federal action. Marrese’s Petition for Rehearing at 7. In the case of either plaintiff, however, it is unclear what aspect of judicial economy or fairness to the defendant would have been served by requiring even the simultaneous filing of both actions in state and federal courts.
. The plurality opinion refers to the preclusive effect of a prior state court adjudication of an antitrust defense, supra, at 1153, in arguing that this court should adopt the same rules for an antitrust claim. Yet, in the decision which the plurality cites, Lyons v. Westinghouse Electric Corp., 222 F.2d 184 (2d Cir.1955), Judge Learned Hand refused to grant preclusive effect to a state court adjudication of such a defense. Judge Hand wrote:
the grant to the district courts of exclusive jurisdiction over the action for treble damages should be taken to imply an immunity of their decisions from any prejudgment elsewhere; at least on occasions, like those at bar, where the putative estoppel includes the whole nexus of facts that makes up the wrong.
Id. at 189. The Lyons decision is usually taken to stand for a principle precisely opposite to that for which the plurality cites it, namely, “that state court determination of a federal antitrust defense in a contract action could not become binding in federal antitrust litigation.” 18 C. Wright, A. Miller, E. Cooper, Federal Practice And Procedure § 4470, at 683 n. 23 (1981). See also RX Data Corp. v. Department of Social Services, 684 F.2d 192, 196-98 (2d Cir.1982) (court declined to apply either res judicata or collateral estoppel when there was insufficient identity of issues, partly because state court could not have heard claim for copyright infringement).
The plurality also relies on Justice Holmes’ decision in Becher v. Contorne Laboratories, Inc., 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1929), as authority for granting preclusive effect to a prior state court proceeding. In Becher, the federal suit involved a claim of patent infringement, while the prior state decision related to a breach of contract claim. Holmes held that the plaintiff was estopped to relitigate the state court’s findings of fact, even though *1178these facts might be dispositive of the patent claim. Exclusive federal jurisdiction over patents did not prevent the state court from determining facts relevant to the dispute before it:
A fact is not prevented from being proved in [a state] case in which it is material, by the suggestion that if it is true an important patent is void — and ... we can see no ground for giving less effect to proof of such a fact than to any other.
Id. at 391-92, 49 S.Ct. at 357.
It is clear that the holding in Becher was limited to the preclusive effect of findings of fact. As the Sixth Circuit, in Cream Top Creamery v. Dean Milk Co., 383 F.2d 358 (6th Cir. 1967), explained the Becher holding:
Thus- if the first suit is brought in a State Court, this will not mean necessarily that facts there proven can be contested subsequently in a Federal Court action, notwithstanding the exclusive jurisdiction of the Federal Court. However, the doctrine of collateral estoppel is not applicable in the instant case where there were no findings of fact and no adjudication of the case on its merits in the State Court action.
Id. at 362-63.
As the court in Cream Top Creamery stated, so in our case — there have been no findings of fact in the state court: The plurality concedes that the decision in Lyons is restricted to the preclusive effect of prior determinations of facts. Nonetheless, the plurality continues to rely heavily on.the holdings in Lyons and Becher to support its argument that nonfactual issues should be precluded in the present case. Yet Lyons even refers to the distinction between individual facts and a group of operative facts involving the application of law. See also Abramson v. Pennwood Investment Corp., 392 F.2d at 762 (complaint based on Securities Exchange Act § 10(b) and Rule 10b-5 not barred under res judicata by prior state court action based on claim of breach of fiduciary duty although plaintiff would be estopped to reliti-gate facts determined in prior proceeding). In the case before us, there have simply been no findings of fact to estop the plaintiffs in federal court, and the plurality’s citations are not on point.
. At least five circuits including this one have expressly adopted the rule that the availability of a state claim does not bar a federal suit based on a federal statute over which the federal courts have exclusive jurisdiction. See Hayes v. Solomon, 597 F.2d 958, 984 (5th Cir. 1979); Kurek v. Pleasure Driveway & Park District of Peoria, 583 F.2d 378, 397 (7th Cir. 1978); clark v. Watchie, 513 F.2d 994, 997 (9th Cir. 1975), cert, denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975); Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (2d Cir.1968); Cream Top Creamery v. Dean Milk Company, Inc., 383 F.2d 358, 362-63 (6th Cir. 1967).
. The Restatement is therefore squarely against the innovations of the plurality and of Judge Flaum in concurrence.
. “[S]ettlement of state court litigation has been held to defeat a subsequent federal action if the settlement was intended to apply to claims in exclusive federal jurisdiction as well as other claims.” 18 C. Wright, A. Miller, E. Cooper, Federal Practice And Procedure § 4470, at 688 (1981). Accord Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (2d Cir. 1968).
. The plurality writes, supra, at 1156, that “it is doubtful that [the plaintiffs] had any objective in bringing this suit other than to get themselves admitted to membership” and that therefore, presumably, they did not really expect to receive any monetary damages. Yet the plaintiffs did seek mandatory treble damages in their federal antitrust claim, and this relief is one which in the state courts is purely discretionary. The plurality’s speculation as to why the plaintiffs chose to pursue the litigation strategy they did is beside the point, especially when we have the uncontroverted fact of their request for treble damages before us now.
. See also Turf Paradise. Inc. v. Arizona Downs, 670 F.2d 813, 818 n. 1 (9th Cir.1982) (the Ninth Circuit, in distinguishing Nash, stated that Nash does not apply when the antitrust statutes of two jurisdictions are not the same); Hayes v. Solomon, 597 F.2d at 984 (prior litigation in state court for breach of a lease does not bar subsequent federal antitrust suit primarily because the state court “could not provide the relief sought in the second forum, federal antitrust damages”).
. One need only consult the state annotations to the Uniform Commercial Code, which, with slight variations, has been enacted in identical form in virtually every state. There are, of course, different interpretations in the different states. This situation may be acceptable and perhaps desirable in the context of commercial litigation under state law and is the best that can be hoped for where there is no controlling federal statute. Here, of course, there is a strongly controlling federal statute and policy.
. An alternative, of course, is that federal courts might decline, in their discretion, to hear the state claim under United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). This would certainly not economize judicial resources.