concurring specially:
I
To understand the limits of our holding it is important that we isolate the conduct found illegal. The jury’s answer to interrogatory number one tells us that the conspiracy in unreasonable restraint found in number three did not include “agreements on boundary lines so as to divide the geographic areas for which these applicants would seek cable television franchises.” On the evidence, reconciliation of the answers to interrogatories one and three requires the conclusion that the jury found that the city and the private defendants agreed that Affiliated’s application would not be considered — that the city would not consider an application from companies not approved by the original five applicants for franchises. The jury could thus have concluded that the principal purpose of the concerted activity was not to influence public officials or to further any proffered goal of the city other than that of blocking competitive access. Reconciliation of the jury’s answers leaves little room for any conclusion that the jury decided otherwise.
The point here is more than whether evidence supports the jury verdict. The relevant point is that the only conduct condemned today is an agreement between the city and private defendants to deny a competitor access to the process created by the city for the awarding of franchises. The majority opinion does not otherwise judge the legality of the process. The holding today is then relatively straightforward in its condemnation of a classic restraint and the antitrust rule for municipalities which emerges is a modest one indeed.
Equally, our decision should not be read to imply that a municipality must employ competitive bidding in the award of all contracts and franchises or the procurement of all goods and services. Such a conclusion would be inferable only if we were to hold that the public interest in competition must predominate over other legitimate municipal interests as it predominates over the private profit motive. Emphatically, we have not so held.
The municipal defendants have stated that they intended to favor minority businesses and locally-based businesses, but, even assuming that both of these are legitimate public purposes, neither policy explains the selection of the Gulf Coast consortium in preference to Affiliated. These defendants have also testified that they *1571hoped to avoid the burden of selecting between competing applicants for particular franchise areas, and only the Gulf Coast group presented a package proposal featuring total city coverage with no overlapping boundaries. Selecting from among competing applicants those companies most fit to provide cable service to the citizens of Houston was a paradigmatic governmental function, and it is difficult to conclude that the desire of the mayor and city council to escape making this determination was itself a legitimate municipal purpose.1 As the municipal defendants have thus failed to advance any public policy justifying their conduct, I conclude that the jury was warranted in concluding that their anticom-petitive actions merit the imposition of antitrust liability.
II
Isolating the restraint which we today condemn also places in perspective the limits of our rulings regarding First Amendment protections of petitions for redress, The Parker principle stunted the growth of Noerr-Penningtonuntil City of Lafayette and City of Boulder were decided. The lull reach of Noerr-Penmngton by necessi- , . „ -i f. -A , . j ty is now open for exploration. But today , x .i , , we do no exploring. In the present posture of this case there is no petition to government at issue. We do not face a successful request for governmental action with anti-competitive results where the participation of government was confined to that of deci-sionmaker. Instead, the condemned conduct included active participation by the city with citizens in the exclusion of a competitor. Resolution of the host of difficult issues traveling under the Noerr-Penning-ton rubric must await another day.
In sum, I concur with Judge Garza’s opinion and add this separate writing in parts I and II only to identify issues we do not decide today. I continue in part III to highlight an issue presented by the application of antitrust laws to municipalities and implicit in today’s decision,
III
The Supreme Court in City of Lafayette and QHy of Boulder left the inferior courts w¡th the exquisite task of fitting the antitrust laws to municipal government. The rule of reason is at the center of the uncer. ^ .
Basic antitrust principles teach that private citizens and corporations cannot weigh the public good against the competitive impact of their agreements.2 It is, for exam-pie, no answer to price-fixing charges that competitive letting of design work will cause inferior design. It is for government to weigh the public good against any anti-competitive impact. When the antitrust laws are then found to be applicable to municipalities, how we may balance the competitive impact of decisions by city government against the perception of the public good is uncertain.
Thfe tion ¡s d when cit n. ment aets ¡n ^ uni rok of ]oca] n. , , , , , ment, whatever be the issue when it acts as „ , , . a consumer of goods and services. Argu- . jn , * ably- whf tbe enters thf marketplace to c°mPete f°r the, custom °f others, or to Purchase wmdow_ cleaners for the City Hall windows, its activity is virtually mdistmguishable from private business. Where, however, the city acts as a regulator or governor of the sales and deliveries of goods and services to its constituents, it is engaged in a role dissimilar from that of private business.
In our economic system, private business enterprises are presumed to respond predominately, if not exclusively, to the profit motive. By contrast, the concept of “profit” per se is alien to the purposes of a unit *1572of government. Consequently, the clash of interests necessitating an antitrust law— the private desire to reap extra-normal profits versus the public interest in free competition — will not appear in its traditional form when the accused antitrust conspirator is a governmental entity.
The underlying principle of the antitrust laws, starkly stated, is that when the private pursuit of profit conflicts with the public interest in competition, the public interest shall prevail. In turn, the traditional “rule of reason” states that a present constraint on competition may be justified only by an ultimately pro-competitive effect. Other societal benefits which may allegedly flow from an anticompetitive act are irrelevant because it is not the businessman’s prerogative to determine how those benefits may best be obtained. Rather, we presume that competition will ordinarily be attended by greater social benefits than any other market structure. It is then the prerogative of government alone to determine when the competitive process is inadequate to meet the needs or the best interests of society. In such cases, the government may pursue three related and often-overlapping courses: It may replace or restrict competition, for example by adopting a licensing procedure; it may supplement competition, for example by enacting product safety or anti-pollution laws; and it may substitute for competition, for example by regulating the price charged by a natural monopolist.
Though the majority has not addressed this issue directly, its opinion signifies amenability to the rationale that the “rule of reason” which applies when the accused is a governmental entity must differ from that encountered when the accused is a private business. This is so because the majority opinion ultimately rests on a duty of the city to justify the absence of competition in awarding franchises; political patronage is not justification. Under this rationale, public interests other than competition can be balanced against the interest in competition, because it is the particular prerogative of government to advance these other interests. Thus, for example, there was evidence in this case that the City of Houston planned to favor minority-owned businesses in awarding the cable franchises. Such a policy is anti-competitive in that it accords an advantage to certain businesses based on a non-economic criterion, but no antitrust liability should result if one decides that the advancing of public policy is “legitimate” and outweighs any adverse impact on competition.
The majority does not surface the problem, but, by analogy to other uses of private suits to implement social goals, such a rationale ought to be implemented by allocating to the party best equipped to make the proof the burden of going forward with the evidence. Thus, when a plaintiff has established a prima facie case of anticom-petitive conduct by a municipal defendant, the burden on the municipality would then be to articulate legitimate governmental interests advanced by its conduct which put at issue whether the gains reasonably expected to be achieved by its anticompetitive conduct justify the degree by which competition was reasonably expected to be diminished. The ultimate burden of persuasion that the restraint, so measured, was unreasonable, would be on the plaintiff.
Application of such a rule will not be easy. Critically, such a rule does not reconcile applicability of the federal antitrust laws to municipalities with those principles of federalism which counsel deference to the balancing of public interests performed by local units of government under authority delegated by the states. To the contrary, it would give to the courts the task of balancing a municipal objective against its anticompetitive effect. Reviewing the “reasonableness” of such restraint could travel against our commitment to federalism.
A rule of reason analysis that allows government purpose to be directly weighed against competitive impact seems antithetical to federalism. Yet, the premise of this concern is that decisions by municipal government reflect a species of governmental choice and that such review is an intrusion of the federal government into the affairs of local government. This pre*1573mise, however, fails to accept that in this sense the majority opinion in City of Boulder denied the sovereignty of municipal government (we are not a nation of city states). In doing so, the court sanctioned this intrusion into free decision-making in a manner not dissimilar to limitations placed upon private business.
Finally, not to weigh the purpose of the restraint and the presence of less anticom-petitive alternatives to achieving the purpose would render the rule of reason illusory, for its essence is balance. In sum, the weighty concerns about subjecting decisions of municipal government to traditional rule of reason measures were presumably considered and found insufficient to overcome the pro-competitive policies underlying the antitrust laws when the Supreme Court removed municipalities from the cover of Parker v. Brown. While in my view this is a treacherous path, as an inferior court we must accept that judgment and I read the majority opinion as doing so.
CLARK, Chief Judge, with whom REAV-LEY and E. GRADY JOLLY, Circuit Judges, join, dissenting in part.
This case came to be reheard en banc because the panel held that the City of Houston, its mayor and a cable franchise applicant committed a per se violation of Section 1 of the Sherman Act. The en banc court abandons that position. Although the reasoning it substitutes lacks the sweep of the prior error, it remains just as wrong in reversing the district court’s judgment in favor of Gulf Coast.
Initially, the majority fails to make the critical determination of relevant market. It compounds this legal error by choosing its own path through the facts to arrive at a result which ignores the contrary initial fact finding of the jury and the trial judge’s fact reconciliation of the jury’s two inconsistent findings. The result is to saddle a bidder for a municipal franchise with an erroneous 6.3 million dollar award for actions that are no more an antitrust offense than would be an agreement to establish separate churches in different parts of town.
Relevant Market — The majority acknowledges that the city started this unfortunate affair when it made a political decision to let multiple franchises for cable TV coverage in Houston. What the majority then promptly ignores is that this final decision established the relevant market for each competitor as, not the city of Houston, but each discrete segment of the city that any competitor for a franchise wanted to designate. This elemental truth negates every anticompetitive conclusion the majority draws. When the proper concept of relevant market is put with the jury finding that there was no conspiracy in restraint of trade in the agreements which drew the proposed boundary lines, every doubt that this is not an antitrust case disappears. Affiliated Capital could have competed in any one or more of the relevant markets designated by any applicant in the defendant group. Affiliated Capital could have competed in yet different markets by forming its own group and dividing territories differently. When it belatedly demanded a choice piece of Gulf Coast’s territory, the rebuff was neither conspiratorial nor anticompetitive.
Inconsistent Special Verdicts — The jury determined that the boundary line agreement to divide geographic areas between franchise applicants was not part of a conspiracy in unreasonable restraint of trade. This finding is a lion in the street for the majority’s fact conclusions on causation. This jury fact finding was not a casual aside. The plaintiff insisted this was a major fact issue in the case. The court’s instructions as well as its interrogatories made it so. How does the majority harmonize this critical, well supported finding which the trial judge who heard and saw the witnesses found controlling? It recasts the jury’s first special verdict — which found the boundary agreements were not part of a conspiracy in unreasonable restraint of trade — as a finding that multiple franchises were preferable to one.
The majority’s forced reconciliation of the jury’s answers to interrogatories 1 and 3 is no reconciliation at all. It merely substitutes this court’s finding for that of *1574the jury. The only reasoned path to resolution of the ease through reconciliation of the jury’s otherwise inconsistent answers is that followed by the trial court — to grant judgment for the defendants on the basis of no causation.
Alternatively, conceding for the sake of argument that there could be some basis for finding causation of damage to plaintiff in a conspiratorial refusal by Gulf Coast to remake a valid boundary agreement, the decision of this court should be that the jury’s answers to interrogatories were internally inconsistent and that a new trial is required. Guidry v. Kem M’fg Co., 598 F.2d 402 (5th Cir.1979); Wright and Miller Federal Practice and Procedure Civil § 2510. But the majority enters its own verdict on inconsistent findings remade at the appellate level. This is wrong.
Lack of Antitrust Injury — Still more wrong is the court’s approval of the use of the Sherman Act in this dispute to wound one who competed on the city’s terms and reward a summer soldier who did not. The antitrust laws were not intended to restore losses caused by business mistakes or free market forces. Affiliated Capital, for reasons of its own, did not seek a cable TV franchise until others interested had legally agreed on market areas. That default is the sole proximate cause of its failure to get a franchise.
I concur in the result reached in Part VI of the majority opinion as to the mayor’s qualified immunity. I also agree with the view expressed in Judge Higginbotham’s concurring opinion that the majority’s decision should not be read as a ruling that cities must use competitive bidding to award contracts and franchises. Such a ruling would drastically impede the development of a law of municipal antitrust liability which accords proper deference to municipal decision-making.
I respectfully dissent from the partial reversal of the judgment.
. Regardless, the jury could have inferred from the evidence that the city and the defendant applicants agreed that no other applicant would be considered without their permission. It is difficult to defend action as being that of city government, with all the weight such ought to carry, when the decisionmaking is placed in the hands of private potential competitors.
. Given the procedural posture of this case, the parties do not attack the jury instruction regarding rule of reason. Regardless, how the rule is actually applied gives it meaning apart from its traditional phrasing,