with whom MIKVA and HARRY T. EDWARDS, Circuit Judges, concur, dissenting from denial of rehearing en banc:
The split panel’s approval of the Attorney General’s decision to allow the Joint Operating Agreement (“JOA”) between the Detroit Free Press and the Detroit News turns on the reasonableness of a single prediction: that even in the absence of a JOA or any possibility thereof, the News will continue to price below costs, sustaining significant losses itself and driving the Free Press from Detroit. See Majority Opinion, 868 F.2d 1285, 1290, 1291, 1294-95. Although the Newspaper Preservation Act’s definition of a “failing newspaper” is ambiguous, Congress must have meant for the term to make economic sense; indeed it defined a failing newspaper as one “in probable danger of financial failure.” 15 U.S.C.A. § 1802(5) (emphasis added). Thus Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) requires at a minimum that the Attorney General’s prediction about future newspaper prices in Detroit be economically reasonable. I believe that the economic reasonableness of the Attorney General’s prediction, on which the full weight of his decision to allow the JOA rests, is suffi*1304ciently dubious to warrant en banc treatment.
His prediction about what would happen in the absence of a JOA makes no economic sense in light of the factual findings he himself accepted as true. Crucially, the Attorney General accepted the AU's basic finding that Detroit, the fifth-largest newspaper market in the country, can support two profitable newspapers if, in the words of Free Press management, “competitive pricing becomes rational and consistent with other markets around the country,” AU Report at 85, i.e., if these two competitors do not continue to engage in deliberately unprofitable pricing strategies with the predatory objective on the part of one paper to drive the other into failure so as to secure a JOA.1 The Attorney General, of course, could have substituted different factual findings about the ability of the Detroit market to support two newspapers but he did not.2 Thus, his conclusion that only one newspaper has a profitable future in Detroit, depends on the assumption that below-cost pricing is probable for the indefinite future, without the prospect of a JOA. But as to this critical finding the Attorney General (see also Majority Opinion at 1295) merely asserted that such pricing would not reflect “unsound business judgment” and that in response to such pricing “it would neither be counterintui-tive nor contradictory” for the Free Press to shut down. Surely it cannot be enough, even under the second prong of Chevron, for the Attorney General just to say that, and no more, in view of both the AU’s and the Antitrust Division’s strong disagreement with that prediction.
Classic economic principles and basic antitrust law run counter to any prediction that sophisticated firms will pursue below-cost pricing strategies over the long haul. See, e.g., McGee, Predatory Pricing Revisited, 23 J.L. & Econ. 289, 291-300 (1980); Bork, The Antitrust Paradox, 144-159 (1978); Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697, 697-704 (1975). (Newspaper giants like *1305Knight-Ridder and Gannett certainly qualify as sophisticated). Yet this is precisely the predicate on which the Attorney General had to build his case: that the News will, even if the JOA is denied, price below its costs with the deliberate and unabashed goal of strangling the Free Press; and that the News will incur heavy losses far into the future (the AU found that it would take at least seven to ten years to eliminate the Free Press in this fashion) on the ephemeral hope of monopoly profits at the end of the line, assuming, that is, that its monopoly status goes unchallenged by a new or revived rival seeking to share in the spoils.3
The Supreme Court has only recently reiterated that “predatory pricing schemes are rarely tried, and even more rarely successful,” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 589, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986) (holding summary judgment appropriate where evidence insufficient to overcome theoretical economic obstacles to predatory conspiracy), and that they are “impossible to maintain” successfully in the absence of any “reason to suppose that entry into the relevant market is especially difficult,” id. at 591 n. 15, 106 S.Ct. at 1359 n. 15; see also Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 121 n. 17, 107 S.Ct. 484, 495 n. 17, 93 L.Ed.2d 427 (1986).4 In view of this common wisdom, I believe the Attorney General’s economic prediction about the fate of the warring newspapers deserves a second look by an en banc court. Neither the Attorney General nor the panel provides any reasons why standard economic principles are not relevant to this case.
Nor do I see how a court can ignore the fact that the economic behavior on which the Attorney General’s grant of immunity rests comes perilously close if it does not actually constitute5 “a practice inimical to the purpose of the antitrust laws,” id. at 118, 107 S.Ct. at 493.6 The Newspaper Preservation Act authorizes the Attorney General to immunize from antitrust prosecution otherwise unlawful mergers between two newspapers. The Attorney General’s decision here extends that immunity beyond merger to sustained below-cost pricing aimed at reducing a healthy two newspaper market to a monopoly press. In the view of the Attorney General himself the aim of at least one of the newspapers was to cut prices so as to eliminate a rival newspaper, enduring huge losses in the bargain, but thereafter attaining a monopoly. The notion that Congress intended the Newspaper Preservation Act to condone such a result is a sufficiently startling one to require perusal by an en banc court. Legislative history suggests that Congress wanted to preserve as many “reportorially *1306independent and competitive” newspapers as possible, 15 U.S.C.A. § 1801 (congressional declaration of policy), but, recognizing that some markets in which two or more newspapers presently existed could support only one daily, sought to retain as much of the disappearing paper’s voice as possible. Where, however, two independent papers can compete legally and stay alive, condoning resort by one to pricing which on the record is hard to distinguish from illegal predatory pricing, in order to secure a monopoly protected by a JOA, will, ironically, make it even more probable that newspapers will disappear than if the Act had never been passed in the first place. Whether that kind of immunity “effectuate[s] the policy and purpose” of the Act, 15 U.S.C.A. § 1803(b), cf. 15 U.S.C.A. § 1803(c) (immunity not to extend to predatory acts of jointly operating newspapers), is an important enough issue to merit a full court press.7 For these reasons, I dissent from the decision to deny rehearing en banc.
. The AU found that the Detroit situation was not one of a “junior” newspaper valiantly trying to retain a foothold in the market, see Majority Opinion at 1289, and that the characteristic elements pushing one paper into a “downward spiral,” see Majority Opinion at 1291-1292 and 1295 n. 12, did not exist in Detroit. See In the Matter of Detroit Free Press, Recommended Decision 95-100 (Office of the Attorney General, No. 44-03-24-8, December 29, 1987) (“AU Report") (discussing relationship between scale economies, downward spiral and junior paper concerns); id. at 112-113 (finding relationship not to exist in Detroit). Judge Silberman in his concurrence in the denial of rehearing en banc suggests that it is sufficient that the newspapers expressed a belief in the junior newspaper problem even if there were no facts to show this was a rational belief; the full quote from the AU’s report is: "The strategies pursued by the Free Press and News — future domination and profitability at the cost of current profits — were perceived by management as economically rational given the history of the demise of junior papers which had entered the downward spiral. There is no convincing proof, however, that the economic conditions underlying this history — particularly the effects of scale economies — is applicable to these two large papers.” AU Report at 112-13 (emphasis added).
The AU explicitly found that "[t]he objectives of dominance and future profitability were pursued by both papers (and their parents) in the belief that failure too had its reward in the form of JOA approval” and that dominance was sought not by exploiting cost advantages but by cutting price below costs. Consequently, “as one might expect, Detroit cannot sustain two profitable papers when both are practically being given away." AU Report at 115.
. Judge Silberman in his concurrence (and in the majority opinion) appears to contest this basic factual finding. But the AU explicitly rejected the argument that there was evidence that Detroit is a natural monopoly. And the Attorney General stated: The Free Press “plainly does not face external market forces — such as rising costs, competition from other media outlets and the siphoning off of readers from the metropolitan region to the suburbs — that would portend almost certain failure. Nor ... do there exist marketplace declines in overall advertising and newspaper circulation in Detroit of the sort that traditionally propel a junior newspaper into the proverbial “downward spiral" that is fatal to survival." Attorney General's Decision and Order, No. 44-03-24-8 (August 8, 1988) at 8 (emphasis added). Moreover, Free Press management itself stated that "one of the prerequisites to returning to profitability — for both newspapers — is restoring rational pricing in the market,”; in 1983 it "projected from an economic model that under conditions of ‘normalized competition’ the Free Press would earn $1.5 million per year and the News $5 million.” AU Report at 85-86.
. Economists agree that predatory pricing is undertaken only if the predator expects competitors to shut down and no new entry into the market to occur. See, e.g., McGee, Bork, Areeda & Turner, supra. This analysis is of course crucially altered if a JOA is available, as the past behavior of these newspapers suggests. A JOA is precisely the type of guarantee that a potential monopolist needs to ensure that its rival will disappear for good. See Matsushita, infra, 475 U.S. at 591 n. 15 and n. 16, 106 S.Ct. at 1359 n. 15 and n. 16 (barriers to entry can secure future profits needed to recoup losses sustained in driving competitor from market permanently). It is not at all "inconsistent" to argue that it is possible that unprofitable price-cutting will occur when a JOA protects a future monopoly but that such behavior is unlikely if such protection will be denied.
. Indeed, then Assistant Attorney General Douglas H. Ginsburg and Solicitor General Fried arguing for the government as amicus curiae urged the Court in Cargill to find predatory pricing schemes so inherently unlikely that a per se rule was justified "denying competitors standing to challenge acquisitions on the basis of predatory pricing theories.” 479 U.S. at 121, 107 S.Ct. at 495.
. The AU observed that "predatory pricing” was "at least suggested]” by the record. “To illustrate, it was a close question as to whether the Free Press or News would be designated the ‘failing paper’ for purposes of filing the JOA application. Finding 43. But the News’s losses arose from such severe discounting that Gannett expressed concern over ‘the potential problem of illegal advertising contracts entered into by the News and their advertisers during their war for ad volume.' ” AU Report at 122-23 n. 303.
. Whether the Attorney General would seek to prosecute such behavior independently under the antitrust laws is a separate question, which need not be answered in construing the statute.
. Judge Silberman suggests that we cannot consider this consequence of the Attorney General’s decision because "it was not raised by appellants.” It was, however, raised by the appellants. Appellants stated in their brief that "as explained in.more detail in the amicus curiae brief of Little Rock Newspapers, Inc., [the Attorney General’s interpretation of the Act] would allow deep pocket newspaper owners to obtain a JOA almost at will ... [A] corporation such as Gannett or Knight-Ridder that could afford short-term losses, could simply purchase a competing newspaper, and launch a price war by reducing circulation and advertising prices, which would force its competitor to do the same." Brief for Appellants at 44. As the ami-cus brief explained further in its primary argument (certainly not limited to Little Rock) that “The Newspaper Preservation Act Should Not Be Construed To Encourage Predatory Conduct:" "[t]he Attorney General's approval of the JOA ... rewards potentially predatory conduct.” "The [interpretation] convert[s] the Newspaper Preservation Act from a vehicle for preserving journalistic competition where it would otherwise not exist into a vehicle to assist in eliminating competitive newspapers even where both newspapers otherwise could survive.... The danger evident from the Attorney General’s approval of the JOA here is that it endorses the anticompetitive-tactics used." Brief for Amicus Curiae Little Rock Newspapers at 7; id. at 13. "Such a result was clearly not intended by Congress.” Reply Brief of Appellants at 7 n. 3. It hardly implicates case or controversy or separation of powers to point out that cutting prices to sustain current losses with the objective of eliminating a rival and securing monopoly, "predatory conduct" as it was termed by Little Rock, is presumably illegal under the antitrust laws.