dissenting.
As this Court recognizes, “[t]he imposition of a duty is the conclusion of a rather complex analysis that considers the relationship of the parties, the nature of the risk — that is, its foreseeability and severity — and the impact the imposition of a duty would have on public policy.” Crawn v. Campo, 136 N.J. 494, 503, 643 *308A.2d 600 (1994) (quoting Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994)). I agree with the majority that the relationship of the parties and the severe nature of the risk mandate a finding that the American Association of Blood Banks (AABB) owes a duty to blood recipients. However, the dictates of public policy, specifically the quasi-governmental nature of AABB in regulating blood banks lead me to conclude that AABB had a duty to act in good faith and is protected from liability for mere negligence. I say this fully aware that “[a]nytime a court raises the standard of care that defines the legal duty that is owed for the safety of others, it implicitly immunizes a part of the conduct,” Crawn, supra, 136 N.J. at 502, 643 A.2d 600, but nevertheless conclude that public policy requires a grant of qualified immunity to AABB.
I
The decision to grant immunity to those working to promulgate governmental rules is based on a balancing of “myriad and weighty [factors] on both sides of the argument. Resolution of the issue involves a balancing of the citizen’s interest in having a remedy for a wrong suffered and society’s interest in attracting qualified persons to public office____” Centennial Land & Dev. Co. v. Township of Medford, 165 N.J.Super. 220, 227, 397 A.2d 1136 (Law Div.1979).
New Jersey and the federal government have both resolved those difficult policy questions, by statute, when a governmental official or agency is sued for actions such as those in this case. Mr. Snyder might have sued the United States, the State of New Jersey, or the individual officers responsible for negligently deciding not to implement surrogate testing, as the facts indicate that no governmental agency, including the United States Food and Drug Administration (FDA) and the New Jersey Department of Health (DOH), both of whom bore responsibility for regulating blood banks, ever recommended surrogate testing. However, absent any allegation of constitutional wrongdoing, such a case *309would have been dismissed because of a defense of absolute immunity.
The Federal Tort Claims Act prohibits state tort suits against the government and its officials based on “the exercise or performance or the failure to exercise or perform a discretionary function.” 28 U.S.C.A. § 2680(a); see also 28 U.S.C.A. § 2679(d)(2)(deeming all suits against officials to be suits against the United States and subject to all defenses available to the government). As the Supreme Court has explained, this rule prevents “judicial ‘secondguessing’ ” of governmental decisions “grounded in social, economic and political policy.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.3d 660, 674 (1984). Immunity is granted because of a concern that judges and juries will determine, with the benefit of hindsight, that a difficult policy decision that turned out to be wrong was negligently made.
To protect such governmental policy decisions, federal courts have dismissed lawsuits alleging negligent federal responses to new medical problems such as AIDS. For example, in C.R.S. by D.B.S. v. United States, 11 F.3d 791 (8th Cir.1993), a former soldier contracted AIDS during a blood transfusion at a military hospital in December 1983. The soldier sued, alleging that the military was negligent in adopting the AABB/FDA standards issued in March 1983 after the January 4, 1983, meeting. Id. at 794-95. The court determined that “the issue of what screening procedures to adopt is precisely the type of policy-bound decision that Congress intended to insulate from judicial scrutiny through the discretionary function exception,” and thus granted summary judgment for the government. Id. at 797; see also Lockett v. United States, 938 F.2d 630 (6th Cir.1991) (affirming dismissal of claim challenging EPA response to PCB contamination as negligent); Prescott v. United States, 858 F.Supp. 1461, 1468 (D.Nev. 1994) (dismissing suit alleging negligence by Atomic Energy Commission in setting level of authorized radiation exposure because the levels “were the product of extensive analysis ... and clearly *310involved the weighing and balancing of a number of social, economic and political considerations based on then available scientific and medical data”).
New Jersey has adopted a similar rule of absolute immunity. N.J.S.A 59:2-3 relieves public entities from liability for “an injury resulting from the exercise of judgment or discretion vested in the entity.” N.J.S.A 59:3-2 provides similar immunity to the governmental employee responsible for such decisions. The statutes provide “broad immunity for discretionary acts which has also been adopted ... [by] the federal government.” N.J.S.A 59:2-3, comment. This Court has interpreted the statute to protect “the exercise of judgment or discretion in making basic policy____ upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice.” Costa v. Josey, 83 N.J. 49, 59, 415 A.2d 337 (1980).
Courts have identified several policy concerns justifying the grant of absolute (rather than qualified) immunity to those governmental officials who make sensitive policy decisions. As the Supreme Court explained, the threat of lawsuits “would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434, 1441 (1959).
•The threat that liability will inhibit effective and vigorous government is the result of the governmental official’s position. The ordinary negligence rule is designed to encourage actors to act only when the benefits outweigh the costs. Ordinarily, the threat of liability will deter a person from acting if the costs outweigh the benefits because the actor will be forced to pay those costs in a lawsuit; if the benefits outweigh the costs, the actor will proceed knowing that it will not be held liable and will enjoy the benefits. As a result, the optimal outcome is achieved. Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 32-33 (1972). *311However, the theory of negligence breaks down with government employees:
The nub of the issue lies in the implicit imbalance in the incentives imposed on public officials if left wholly unprotected by any immunity doctrine. Let them make an incorrect decision and they will have to shoulder the enormous costs of liability. Let their decisions be correct and there will be enormous gains, which will be captured not by them, but by the public at large. Why, therefore, should a public official take all the risks for none of the gain?____ One way to restore the [proper] balance would be to pay public officials enormous sums to compensate them for the great liability risks____ The other way to restore the needed symmetry between official rewards and official burdens is to release the public official from liability, in whole or in part. In this way the system is brought into balance, since the official in question escapes capturing the full gain or bearing the full loss, albeit at the cost of individual redress for government wrongs.
[Richard A. Epstein, Cases and Materials on Torts 878-79 (5th Ed.1990) ]
A grant of immunity restores the balance and encourages efficient and appropriate government decisions.
Courts have identified several additional concerns, including a fear that lawsuits would deter public-spirited individuals from entering public service. See, e.g., Lister v. Board of Regents of Univ. of Wis. System, 72 Wis.2d 282, 240 N.W.2d 610, 621 (1976). That policy concern is particularly important in cases such as this one, when the government is required to determine important and difficult questions of public policy, and “courts, utilizing standard tort principles, are ill-equipped to interfere with them.” Costa, supra, 88 N.J. at 55, 415 A.2d 337.
II
While the State of New Jersey and the United States would be absolutely immune from suit in this case, the AABB, of course, is not a governmental agency but a private organization that has assumed certain governmental responsibilities. However, while specific statutes do not provide immunity to the AABB or other private volunteers, the “statutory immunities are reflective of public policy and may serve as a guide to the evolution of related common law immunities.” Crawn, supra, 136 N.J. at 504, 643 A.2d 600. Many of the same policy concerns that motivated the *312grant of immunity to public officials apply to the question of immunity for the AABB.
The AABB is an organization with thousands of members, including nearly all of the community blood banks in this country and several thousand doctors. It describes itself as seeking “to develop and recommend standards on the practice of blood banking, to help promote the public health, ... and to conduct numerous programs for communication and education among organization members and the public at-large.” Ante at 277, 676 A.2d at 1040. As the 1992 AABB Annual Report describes, AABB “members also join for representation,” and the Association conducts public relations campaigns and federal and state legislative lobbying. Most important to Mr. Snyder’s case, the AABB also acts as a regulatory body. As the majority explains, the AABB, through its volunteer committees, provides accreditation to member blood banks that comply with its standards.
All of the people who serve on the AABB’s numerous committees and perform those tasks are uncompensated volunteers from top academic and research institutions, and not high-paid executives concerned only with the bottom line. For example, Dr. Bove is a member of the faculty at Yale University and also serves as the Associate Director of Clinical Laboratories at Yale-New Haven Hospital. Dr. Harold Oberman, another of defendant’s witnesses, has edited the AABB’s publications on blood bank standards and is a professor of pathology and laboratory director at University of Michigan. Dr. Carol Bell, who served on several AABB committees and also appeared as a witness, is a clinical professor of pathology at University of Southern California and at University of California at Irvine, as well as Director of Laboratories at Brotman Medical Center in California.
A blood bank in New Jersey cannot operate without licenses from both the FDA and the DOH. Ante at 276, 676 A.2d at 1040. Many states have opted to forego regulation and defer entirely to the AABB in establishing standards, but New Jersey only partially defers to the AABB as a blood-bank regulatory body. In 1984, *313under DOH regulations, DOH required blood banks to meet both the FDA and AABB standards pertaining to medical histories and physical examinations of donors. N.J.AC. 8:8-5.2 (May 21, 1984). At that time the AABB standards were more stringent than those of the FDA. When renewing blood-bank licenses, DOH accepted AABB inspection reports in lieu of making its own inspections. N.JAC. 8:8-1.4(b) (May 21, 1984). DOH also accepted AABB’s standards for obtaining medical histories and conducting physical examinations of donors. N.JAC. 8:8-5.2 (May 21,1984). “Thus, if a blood bank failed the annual AABB inspection on the taking of medical histories, that bank could lose its license to operate in New Jersey.” Ante at 297, 676 A.2d at 1050.
Moreover, DOH continues to rely on AABB. In its regulations DOH presently requires blood banks to conform to FDA or AABB standards, “whichever is more stringent,” in quality control, N.JAC. 8:8-4.1(b)(4), donor examination policies, N.JAC. 8:8-6.2, and preparation of blood, N.JAC. 8:8-7.1. AABB standards are, and historically have been, stricter than FDA rules. Thus, New Jersey has delegated part of its regulatory responsibility to AABB. As the majority explains, “at least in New Jersey in 1984, AABB was not a mere advisory body. It exercised control of its member banks, including BCBC.” Ante at 297, 676 A.2d at 1050.
The United States, through the FDA further regulates those blood banks that transfer their products across state borders. See 42 U.S.CA § 262(a). Unlike DOH, the FDA has not officially delegated any power to AABB. However, I agree with plaintiffs conclusion that AABB was involved in the federal decision-making process and helped formulate the federal response to AIDS in 1983-84. AABB representatives participated in the January 4, 1983 meeting and in the FDA Task Force that rejected surrogate testing in March 1984. Indeed, plaintiffs witnesses, including Dr. Engerman and Dr. Marcus Conánt, testified that AABB caused the federal response that rejected surrogate testing and direct screening in favor of indirect screening and educational efforts. As the majority correctly concludes, “the AABB was a major *314player in both state and federal government in setting blood policy in the 1980s.” Ante at 297, 676 A.2d at 1050. AABB’s actions here were directly intertwined with, and to a large extent constituted, governmental regulation.
Ill
When a private organization performs a quasi-govemmental task that the state would otherwise have to perform, public policy requires a grant of immunity. Otherwise, the private organization “might well refuse” to perform the task at all, thereby “inereasfing] the load on the strained resources” of the state. Sherman v. Four County Counseling Ctr., 987 F.2d 397, 406 (7th Cir.1993). See also Warner v. Grand County, 57 F.3d 962, 967 (10th Cir.1995)(“If [private parties] are not permitted to raise the shield of qualified immunity, they might reject requests to aid state officials in performing government functions.”). As it does for public officials, immunity alleviates the fear and expense of litigation, the diversion of personal energy from pressing public issues, and the deterrence of qualified private parties from serving the public interest. See Sherman, supra, 987 F.2d at 406; Corey v. New York Stock Exch., 691 F.2d 1205, 1211 (6th Cir.1982); cf. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396, 408 (1982). Granting immunity to non-profit associations who have assumed some governmental duties will ensure that, undaunted by the prospect of litigation expense and potential damage awards, they will continue to perform the essential public service that they alone are well-positioned to undertake: the good-faith development of industry standards to protect the public health and safety.
Many courts have recognized that those policy concerns do apply to private parties acting in a governmental capacity and have therefore extended immunity to them. In Berends v. City of Atlantic City, 263 N.J.Super. 66, 621 A.2d 972 (App.Div.1993), an airplane crashed while attempting to land at an Atlantic City airport that was operated by Pan Am Management Systems, Inc. *315(Pan Am). Plaintiffs theory was that the city’s decision to close down one of the two runways had led to a dangerous condition that caused the crash. The court dismissed the claim against the city because “the city enjoyed immunity under N.J.S.A. 59:2-3a,” since the decision was a high-level policy judgment. Id. at 81, 621 A.2d 972. The court also dismissed the claim against Pan Am:
Pan Am engaged in and made a significant contribution to the process which, as we have held, shields the city from liability. It would be anomalous to punish Pan Am for postponing the reopening of runway 4-22 when the postponement resulted from its participation in a thoughtful and professional multiagency evaluation process upon which the city’s immunity is founded.
[Id. at 83, 621 A.2d 972.]
Similarly, it would be anomalous to punish the AABB for its actions since its decisions resulted from its participation in a process on which the government’s immunity is founded.
The majority attempts to distinguish Berends in several ways, but none are persuasive. First, the majority asserts that “Pan Am’s claim of governmental immunity relates back to the contract with Atlantic City____ Unlike Pan Am, the AABB did not act pursuant to a contract with any governmental agency.” Ante at 298, 676 A.2d at 1051. However, the panel in Berends explicitly refused to base its decision upon Pan Am’s contract with Atlantic City, since the contract had not been placed into evidence. Berends, supra, 263 N.J.Super. at 82, 621 A.2d 972.
The majority also claims that “Pan Am operated the airport under strict federal and state regulation,” whereas the blood-banking industry was governed by “more lenient” government regulations. Ante at 298, 676 A.2d at 1051. Of course, “state and federal regulations apply to ... the blood-banking industry.” Id. at 276, 676 A.2d at 1039. The majority suggests that Pan Am was granted immunity because, in this Court’s view, airport regulations are better than blood-banking regulations. This assertion, without a shred of proof, lends added credence to the legislative concern that the judiciary should not “seeondguess” policy decisions because courts “are ill-equipped to interfere” with such decisions. Costa, supra, 83 N.J. at 55, 415 A.2d 337.
*316Finally, the majority argues that the decision-making process in Berends was different in that it involved a multi-agency decision-making process including public hearings and participation. Ante at 298, 676 A.2d at 1051. That is a curious claim, since the AABB’s opposition to core testing was first made known at a meeting attended by members of the CDC, FDA, National Institutes of Health, AABB, American Red Cross, Council for Community Blood Banks, National Hemophilia Foundation, National Gay Task Force, New York Health Department, San Francisco Health Department, and other organizations. See Ante at 284, 676 A.2d at 1048. Thus, the meeting was attended by government regulators, blood bankers, and private organizations representing the interest of those blood recipients most concerned about a safe blood supply, those with hemophilia. In fact, the decision-making process here was quite similar to that in Berends, and the AABB, like Pan Am, should be granted immunity as a result of its participation in the multi-agency decision-making process from which the government’s immunity is derived.
The Seventh Circuit’s decision in Sherman also supports a finding of qualified immunity for the AABB.
In Sherman, supra, 987 F.2d at 405-06, the court conferred immunity on a private hospital that was sued for its actions in treating a patient. In treating the patient, the hospital was “fulfilling a public duty” to care for a patient who would otherwise have been treated by a public hospital. Id. at 406. Had the public hospital performed the same services, it “would be protected by qualified immunity,” and the court therefore reasoned that the private hospital should be similarly protected to encourage private assistance to the government. Id. at 405. Similarly, since New Jersey and the FDA would be entitled to immunity for a decision not to conduct surrogate testing, the AABB should also be given immunity for making a decision that would otherwise have been made by DOH and FDA.
Courts have granted immunity to private parties for their good-faith performance of quasi-govemmental tasks in a wide range of *317contexts, in recognition of the applicability of the same public policies requiring governmental immunity. See, e.g., Warner, supra, 57 F.3d at 964-67 (conferring immunity from § 1983 suits on private actor who performed strip search at officer’s direction); Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d 882 (2d Cir.) (granting absolute immunity for all quasi-judicial actions to arbitrators who heard ease pursuant to contractual arbitration clause), cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990); Kwoun v. Southeast Mo. Professional Standards Review Org., 811 F.2d 401, 407-09 (8th Cir.1987)(conferring tort and § 1983 immunity on private medical peer review group that conducted quasiprosecutorial medical performance review), cert. denied, 486 U.S. 1022, 108 S.Ct. 1994, 100 L.Ed.2d 226 (1988); Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579 (9th Cir.1987) (granting immunity to appraisers who performed quasi-judicial acts); Austin Mun. Sec., Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 757 F.2d 676, 689-92 (5th Cir.1985)(eonferring § 1983 immunity on private securities association for its “quasi-governmental” regulation of securities market); Bushman v. Seiler, 755 F.2d 653 (8th Cir.1985) (conferring tort immunity on employee of Medicare carrier); Corey, supra, 691 F.2d at 1208-11 (conferring immunity on private arbitrators performing quasi-judicial duties.); Lundgren v. Freeman, 307 F.2d 104, 118 (9th Cir.1962) (conferring immunity on architect acting as arbitrator pursuant to contract because policy of judicial immunity “extends to private persons acting [as arbitrators] in a quasi-judicial capacity within jurisdiction established by private agreement.”); Citrano v. Allen Correctional Ctr., 891 F.Supp. 312, 317 (W.D.La.1995)(conferring immunity on private contractor operating a prison since “they are the functional equivalent of state prison employees, and as such, the same rationales underlying the grant of qualified immunity to state prison officials have equal application to them.”); Weissman v. Hassett, 47 B.R. 462 (S.D.N.Y.1985) (granting tort immunity for bankruptcy trustee in certain instances); Lythgoe v. Guinn, 884 P.2d 1085, 1087 (Alaska 1994)(conferring tort immunity on court-appointed psychologists, in accord with “virtual uniformity” of other decisions, since threat *318of liability would deter their acceptance of court appointments); Craviolini v. Scholer & Fuller Assoc. Architects, 89 Ariz. 24, 357 P.2d 611 (1960) (recognizing tort immunity for private arbitrators); Latt v. Superior Ct., 212 Cal.Rptr. 380 (Ct.App.1985)(conferring tort immunity on court-appointed corporate director because “[i]t is patently unfair to burden a court’s delegate ... with civil liability for judicial acts performed for which a judge exercising the same functions could not be civilly liable.”), review granted, 215 Cal.Rptr. 851, 701 P.2d 1169 (1985), review vacated, 223 Cal.Rptr. 266, 713 P.2d 1196 (1986); Rubenstein v. Otterbourg, 78 Misc.2d 376, 357 N.Y.S.2d 62, 63-64 (N.Y.City Civ.Ct.1973)(conferring immunity on arbitrator association because “[t]hey perform with respect to arbitrator’s functions similar to those performed by the Judicial Conference, the Administrative Board and the Appellate Division with respect to judges.”); City of Durham v. Reidsville Engineering Co., 255 N.C. 98, 120 S.E.2d 564, 567 (1961)(conferring immunity on engineer who approved payments during construction because engineer acts in quasi-judicial capacity)-
This case provides another context in which the Court should grant immunity to a private actor performing governmental duties. The majority seeks to distinguish those eases by noting that “[i]n each case in which a court has recognized a private entity’s claim of immunity, the entity had performed quasi-govemmental functions pursuant to a governmental grant of authority,” ante at 296, 676 A.2d at 1050, while “the AABB acted without the benefits of governmental authority.” Ante at 296, 676 A.2d at 1050.
However, that claim is unpersuasive and wrong for two reasons. First, the AABB acted under the benefit of authorizing DOH regulations promulgated in 1984 and continues to operate under current DOH regulations. Supra at 277, 676 A.2d at 1040. N.J.S.A 26:2A-7 requires that DOH establish rules and regulations governing blood bank procedures. Pursuant to this delegation of legislative power, “DOH incorporated into its regulations *319AABB standards.” Ante at 299, 676 A.2d at 1051. Similarly, “FDA regulations allowed blood banks to rely on AABB standards as long as they are consistent with, and at least as stringent as, FDA regulations.” Ibid. The majority seeks to have it both ways: finding a duty of care and liability because of the governmental authority delegated to the AABB, but then denying immunity because of a perceived lack of governmental authority. In fact, the FDA and DOH delegated power to the AABB, and AABB’s exercise of this power should also be accorded immunity.
Secondly, as many courts have recognized, “immunity does not depend upon the source of the decision-making power but rather upon the nature of that power.” Corey, supra, 691 F.2d at 1211; accord Citrano, supra, 891 F.Supp. at 318. The decision to grant immunity is based on a desire to protect and to encourage certain types of decisionmaking processes. It is not grounded on the existence of a legislative grant of power. The military was relieved from liability for transmission-related AIDS in C.R.S. by D.B.S., supra, not because there was a specific legislative grant of authority to the military to decide blood policy, but because the decision was a “policy-bound decision” for which judicial review is inappropriate. 11 F.3d at 797. That concern extends to any such decision, whether made pursuant to a specific grant of authority or not. Similarly, the Supreme Court’s concern in Barr, supra, that liability would inhibit vigorous and appropriate decisionmaking processes does not depend on the existence of a grant of governmental authority.
Indeed, there was no legislative grant of power in many of the cases where courts have recognized quasi-goveramental immunity. Thus, in Craviolini, supra, the court recognized quasi-judicial immunity, “bestowed by public policy,” for architects who arbitrate disputes pursuant to private construction contracts, even though there was no grant of power from the government. 357 P.2d at 613. Similarly, the Ninth Circuit has held that the public policy in favor of judicial immunity, granted to “prevent fear of suit from influencing their decisions,” should extend to private *320persons acting in a quasi-judicial capacity pursuant to “private agreement.” Lundgren, supra, 307 F.2d at 117, 118. See also Austern, supra, 898 F.2d at 886 (granting immunity to arbitrators appointed pursuant to private contract because of the “functional comparability” to judges). Those courts have all recognized what the Court today does not: immunity for quasi-govemmental activity does not depend on the source of power but rather upon the nature of the decision-ihaking process.
IV
Courts have ordinarily granted the same immunity to private groups conducting quasi-governmental activity as that accorded to government employees performing similar functions. For example, in Berends, supra, Pan Am was given the same level of immunity granted to Atlantic City. That result has been justified because the public policy behind the grant of immunity is so similar in both the public and private context. As a result, those cases might dictate a grant of absolute immunity to AABB “upon proof that discretion was actually exercised” at the level of basic policy, and that AABB “weighed the competing policy considerations” in reaching its decision. Costa, supra, 83 N.J. at 59, 415 A.2d 337. However, I conclude that there are public policy interests requiring that AABB should receive only qualified immunity for its performance of discretionary functions, protecting it from liability “providing what [it] do[es] is done in good faith.” Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N.J. 124, 142, 155 A.2d 536 (1959) (quoting Johnson v. Marsh, 82 N.J.L. 4, 85 A 761 (Sup.Ct.1912)). See also Bombace v. City of Newark, 125 N.J 361, 374, 593 A.2d 335 (1991) (defining good-faith immunity as protecting defendant from liability when, objectively or subjectively, defendant acted in good faith); Restatement (Second) of Torts § 895D, cmt. e (1977).
Qualified immunity is “the best attainable accommodation of competing values,” Harlow, supra, 457 U.S. at 814, 102 S.Ct. at 2737, 73 L.Ed.2d at 408, because it simultaneously preserves both *321the incentive of private associations to continue developing industry rules and the right of injured parties to seek relief in extreme cases where malice or bad faith can be demonstrated. Unlike governmental officials, the threat of electoral removal is not a deterrent, because AABB’s constituency is blood banks and doctors, not those harmed by HIV-tainted blood. Cf. Lister, supra, 240 N.W.2d at 621. Moreover, AABB acts not only as a public-interested regulator but also as a lobbyist for the blood bank industry, and it is therefore motivated by the industry’s interests as well as the public good. Thus, unlike a government employee, AABB enjoys some of the benefits of its decisions.
As a result, complete immunity might encourage AABB to make negligent decisions because it would bear none of the costs and enjoy some of the benefits of its decisions. Liability for negligence, without any immunity (the Court’s standard), might also deter effective decisions — because most of the benefits of an AABB decision are enjoyed by the public, AABB might hesitate from taking some appropriate actions if its own benefit would not be as great as the overall cost, even if the overall benefit exceeds that cost. Cf. Epstein, supra, at 878-79; Lundgren, supra, 307 F.2d at 118 (granting qualified immunity to architect who arbitrated disputes between an owner and contractor, court rejected absolute immunity accorded to judges because architect, unlike judges, had some self-interest in the outcome). Qualified immunity allows AABB to make proper decisions, relieved of some liability, but imposes a sufficient check against decisions that are clearly wrong and motivated by profit.
The majority professes concern for the difficulties faced by AABB and other similarly-situated groups, recognizing that the development of tests “often follows an indistinct path fraught with uncertainty, debate, trial and error, and even failure” and claims that the Court is not just penalizing AABB for taking a wrong position. Ante at 304, 676 A.2d at 1053. However, by defining a duty of ordinary care, the majority is doing exactly what it seeks to avoid: allowing liability when, in the face of uncertain evidence, *322AABB, together with all the government regulatory agencies, made a decision that subsequent developments proved wrong. We grant immunity to the government in such situations because we recognize the difficulty of decisions in this area. The majority’s failure also to grant immunity to AABB ensures that non-governmental agencies will be increasingly unwilling to participate in the regulatory process and assist the government in policy formulation at a time when government and the public increasingly rely on such organizations to develop industry standards.
V
Admittedly, the decision reached by AABB and the government health agencies appears negligent with the perspective of 20/20 hindsight. We know now that the AIDS virus is transmitted by blood and that people, like Mr. Snyder, were unfortunately infected through transfusions. In 1996, concerns about a diminished blood supply and public hysteria pale in the face of a blood recipient tragically infected with the AIDS virus. However, the participants in the vigorous public debate in 1983-84 about the utility of core testing did not have such a clear view of the future. Opponents of the core test expressed several concerns about core testing: (1) the test would exclude a half-million blood donors who did not have-HIV, causing blood shortages and panic as hundreds of thousands of people who had engaged in no high-risk activity would fear that they had contracted HIV; (2) the test would screen out members of 'certain Asian ethnic groups, because many had been exposed to hepatitis, even though almost none were HIV-positive; (3) members of high-risk groups would come and give blood under the impression that they could then find out whether they had HIV; because the core test was not perfect, this would result in increased contamination of the blood supply. (When the ELISA test was introduced, the government set up alternative testing sites specifically to avoid that problem).
It is important to emphasize that every governmental agency agreed with AABB in refusing to use surrogate testing. Dr. *323Conant, one of plaintiffs experts, testified that surrogate testing was not required by any state or federal agency, or by any other country in the world. At the federal level, the FDA never recommended core testing — in March 1984, its Blood Products Advisory Committee recommended that “such testing was inappropriate.” Even though Dr. Francis’s Task Force inside the Center for Disease Control (CDC) urged the use of surrogate testing, CDC itself never made such a recommendation. Indeed, the U.S. Assistant Secretary for Health, Dr. Edward Brandt, stated in a letter dated June 15,1983, that
[T]he test for antibody to hepatitis B core antigen (anti-core) had, as you pointed out, been proposed as a screen for possible AIDS carriers____ 1 believe there is now a general consensus by experts in this area that anti-core is unsatisfactory as a screening test for AIDS carriers.
[ (emphasis added) ]
Dr. Donald Louria, a professor at University of Medicine and Dentistry of New Jersey, explained that no government agencies required the use of surrogate tests because, by 1984, no article in a peer-review journal had yet appeared arguing in favor of core testing. In fact, the few published studies had found that the core test would not be effective and would be unsound public policy. (Dr. Spira’s data had not been approved for publication in a peer-review journal, and many scientists were skeptical of his conclusions).
Policy experts were required to balance those risks to the public with the advantages of testing. In 1983-84, all of the policy-making agencies decided against core testing because they determined, as a matter of policy, that the potential benefits to the public from core testing did not outweigh the costs to the public. That is just the “type of policy-bound decision” that the federal and state governments “intended to insulate from judicial scrutiny through the discretionary function exception.” C.R.S. by D.B.S. v. United States, supra, 11 F.3d at 797.
VI
I agree with the majority that AABB is not entitled to charitable immunity. I also agree that AABB does have a duty to *324recipients of blood products. I respectfully dissent, however, from the majority’s finding that ordinary negligence is the appropriate standard of care to measure AABB’s conduct. Because of AABB’s quasi-governmental nature in regulating blood banks, AABB should be entitled to qualified immunity.
AABB’s decision to adopt educational efforts and indirect donor screening instead of surrogate testing was “the exercise of judgment or discretion in making basic policy.” Costa, supra, 83 N.J. at 59, 415 A.2d 337. If AABB can establish that, when “faced with alternative approaches, [it] weighed the competing policy considerations and made a conscious choice,” ibid., then it should be entitled to qualified immunity, and Mr. Snyder would need to prove bad faith or malice to recover. I would therefore reverse the judgment of Appellate Division and remand the matter to the Law Division for a new trial to consider whether AABB acted in bad faith or with malice in refusing to implement the surrogate test.
For affirmance — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O’HERN, STEIN and COLEMAN — 6.
For reversal & remandment — Justice GARIBALDI — 1.