Dissenting:
With its decision today, the majority holds private parties who make misrepresentations that pervasively influence the decision making process of public entities are entitled to immunity under both the state action immunity doctrine and the Noerr-Pennington immunity doctrine. The majority opinion conflicts with the teaching of this Court in an opinion issued less than four months ago, which held that under certain circumstances applicable here, material misrepresentations that affect the core of a litigant’s submissions to an administrative body are not entitled to Noerr-Pennington immunity. See Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir.1999).
I respectfully dissent for three reasons. First, I believe the misrepresentation exception to the Noerr-Pennington doctrine should be applied when intentional falsehoods pervade the entire state administrative proceeding leading to the denial of plaintiffs application for a certificate of need (“CON”). Second, the majority’s position that the misrepresentation exception has no place in the jurisprudence of this Circuit is not supported by case law. Finally, the majority relies on a Supreme Court decision that is not applicable to this case. As a consequence, the defendant should not be able to escape liability for its misrepresentations under either the state action or Noerr-Pennington immunity doctrines.
According to the majority opinion, the defendants are immune from antitrust liability for their conduct during the course of petitioning the Pennsylvania State Health Facility Hearing Board (“Board”) to deny plaintiffs application for a CON. The majority opinion finds City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991), supports the dismissal of plaintiffs claim. First, the majority finds that the District Court properly dismissed the boycott and misrepresentation claims under *165the Noerr-Pennington doctrine. The majority believes that Omni and Cheminor Drugs cast doubt on whether a misrepresentation exception to Noerr-Pennington immunity exists under any circumstances. Further, even if a misrepresentation exception exists, the majority asserts that the alleged misrepresentations were irrelevant because the Board denied the CON on grounds independent of the misrepresentations. The majority emphasizes that the decision makers were disinterested, conducted an independent investigation, and the process afforded opportunities for error correction. In summary, the majority has essentially found the denial of the CON was untainted by the alleged misrepresentations or boycott threats.
Second, the majority decision argues it was not the boycott or misrepresentation, but rather the denial of the CON that was the direct cause of the Surgical Center’s alleged injuries. The majority concludes denial of the CON was state action and the Hospital parties are therefore immunized from antitrust liability under state action immunity, arguing that “[ljiability for injuries caused by such state action is precluded even where it is alleged that a private party urging the action did so by ... wrongful conduct that may have affected the decision making process.” [Majority opinion at page 162]. Given the procedural posture of a motion to dismiss, I believe the majority’s conclusion is not only impermissible fact-finding, but also contrary to the Surgical Center’s entitlement to all favorable inferences and resolution of factual disputes in its favor.1
DISCUSSION
I. The Hospital Parties’ Actions
Armstrong Surgical Center asserts the Hospital parties conspired to subvert the establishment of its facility by announcing to the Board, which was reviewing the Surgical Center’s CON application, their intent to boycott the facility, and by submitting false and misleading information to the Board regarding the Hospital’s ASC. The purpose of the boycott and misrepresentations was to eliminate a potential new entrant whose competition would adversely affect all the defendants. The Hospital has a complete area monopoly in providing operating room services. The nineteen physicians who sent boycott letters performed nearly 90% of all surgery in the relevant geographic area. Thus, the Hospital parties’ actions targeted two criteria the Board considers in reviewing a CON application: (1) the need for the facility, and (2) its prospective economic viability.
The nineteen physicians in question sent letters to the Board, as it was considering the CON application, stating they would not use the plaintiffs ASC, but would only use the (fictional) ASC provided by the Hospital. The letters stated:
I do not intend to perform surgery at the proposed Armstrong Surgical Center. I intend to use the services of the Ambulatory Surgery Center at Armstrong County Memorial Hospital. The hospital’s Ambulatory Surgical Center provides the highest quality medical care at the most reasonable cost.
The letters go on to suggest that since the Hospital’s ASC is superior, the proposed ASC is unnecessary: “It duplicates services already being provided, and it is not cost effective.” All nineteen letters submitted to the Board were on the Hospital stationery, and contained the same language.
*166The Pennsylvania Department of Health (“Department”) disapproved plaintiffs CON application on November 23, 1993. The Board affirmed the Department’s decision on March 13, 1996. The Board relied on two grounds for affirming the denial of the CON: (1) the Board found the Hospital ASC made Armstrong’s ASC du-plicative and unnecessary, and (2) Armstrong’s ASC would not be economically viable because 90% of the staff physicians would not use it.
The Hospital misrepresented to the Board that its ASC was substantially built and would be ready for use in the near future. When the Hospital parties made their misrepresentations, they knew the Hospital had ceased construction of its outpatient facility months before the hearing, and that construction had not resumed. The fact that the Department learned that this representation was false before it denied the CON does not detract from the falsity of the representation. The Department and the Board learned construction on the Hospital ASC had been interrupted, but they did not know the Hospital had no intent to build or operate a Hospital ASC. In fact, the Board opinion demonstrates the opposite was true. Although the Board knew the Hospital was using the building as a storage facility, it was led to believe that the Hospital had not abandoned the project. Further, because it was not in its economic interest, the Hospital did not plan to resume construction if Armstrong’s CON application was denied. The Board’s decision relied on the misrepresentation that the Hospital ASC was or would be built and the threat of a boycott.
Armstrong’s ASC would not be economically viable because the nineteen physicians who performed nearly all surgeries in the area would not use the new facility if completed because they would use the Hospital ASC. The Board noted the effect of the boycott letters sent by the physicians in explaining its denial of Armstrong’s CON application:
[T]he most damaging evidence is that the number of physicians who might have been expected to support the facility decreased significantly after the Applicant had submitted its projections .... The nineteen physicians who opposed the project in writing are responsible for approximately 90 percent of all surgery performed at the Hospital and each is on the Hospital’s staff.
In other words, after the application was submitted (and for whatever reason) support for the facility eroded among physicians who either had supported it initially or were being counted upon for their eventual participation. Because the Applicant would therefore have to generate much of its volume from outside the service area or from patients who reside in the service area but currently “migrate” to other locales for ambulatory surgery, we seriously doubt that the volume projections made for the facility can be achieved.
Board Op. at 47-48 (citations and footnote omitted).
With these facts in mind, I turn to the majority conclusion that the Hospital parties have immunity for the injuries resulting from their misrepresentations.
II. Applicability of the Noerr-Pennington Doctrine
The Hospital parties contend the Noerr-Pennington immunity doctrine applies because their announced intentions not to perform operations at Armstrong’s ASC facility and statements regarding the existence of the Hospital ASC came in the context of supplying information to state agencies. In general, the Noerr-Pennington doctrine immunizes concerted efforts to restrain or monopolize trade when petitioning the government. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); see Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc. (“PRE”), 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). *167The purpose or motive in petitioning government officials is irrelevant; the fact that the sole purpose might be to destroy a competitor does not undermine the protection afforded by the immunity. Noerr, 365 U.S. at 139, 81 S.Ct. 523. This is true even if “some direct injury” is an “incidental effect” of legitimate petitioning activity, regardless of whether the petitioner is aware of the infliction of such injury. Id. at 143-144, 81 S.Ct. 523.2
If the physicians had simply expressed their opposition to the proposed facility without intentionally misleading administrative decision makers about their intent to use the uncompleted Hospital ASC, the Noerr-Pennington doctrine would protect their statements. Similarly, if the Hospital had not informed the administrative decision makers it was going to build and operate a Hospital ASC, or if it had informed the decision makers it originally intended to build and operate a Hospital ASC but had concluded it would no longer do so, Noerr-Pennington immunity would be available to them. However, as set forth above and in the majority opinion, that is not what occurred.
A. Courts Have Distinguished Between Misrepresentations Made In The Political Context As Opposed to the Administrative or Adjudicative Context
The majority’s reliance on City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991), for the proposition that there is no misrepresentation exception to Noerr-Pennington immunity is misplaced. In Omni, one defendant sought to persuade the city of Columbia to create zoning ordinances, which had a detrimental effect on the plaintiff, who was a competitor of that defendant. The Supreme Court held that the defendant was not liable for antitrust violations for statements made to the city. 499 U.S. at 382, 111 S.Ct. 1344. Omni reaffirmed that deliberate misrepresentations in the legislative arena, “reprehensible as [they are], can be of no consequence so far as the Sherman Act is concerned.” Id. at 384, 111 S.Ct. 1344. The majority’s reliance oh Omni is not persuasive because here, the setting is an adjudicatory arena, not a lobbying or legislative one as in Omni.
The majority cites Omni for the proposition that there is no misrepresentation exception. PRE, which was decided two years after Omni, suggests that the issue of whether there is a misrepresentation exception to Noerr-Pennington remains an open question. 508 U.S. at 61 n. 6, 113 S.Ct. 1920. While PRE cited California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 512-13, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), with approval, the Supreme Court in PRE declined to decide whether Noerr permits antitrust liability for a litigant’s fraud or other misrepresentations. 508 U.S. at 61 n. 6, 113 S.Ct. 1920.
The Supreme Court has stated, not once, but twice, that “[m]isrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process.” California Motor Transp., 404 U.S. at 513, 92 S.Ct. 609. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), stated that unethical and deceptive practices in “less political arenas,” such as administrative or adjudicatory settings, could violate antitrust laws. Thus, the Supreme Court has broadly hinted Noerr-Pennington immuni*168ty is not intended to shield petitioning activities that do not further, but rather distort, the decision-making process in the non-legislative context.
Several Circuit Courts of Appeal also have distinguished between the level of immunity afforded to misrepresentations made in different forums. In Potters Medical Center v. City Hospital Ass’n, 800 F.2d 568, 571 (6th Cir.1986), the plaintiff alleged that the defendant hospital’s certificate of need application contained materially false statements about the plaintiff. The court stated that “the knowing and willful submission of false facts to a government agency falls within the sham exception to the Noerr-Pennington doctrine.” Id. at 580. The Fifth Circuit in Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1296-98 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972), held that Noerr did not protect, inter alia, the filing of false production forecasts with a state regulatory commission. The court stated that the Noerr-Pennington doctrine seeks to protect attempts to influence policies and held that “the abuse of the administrative process here alleged does not justify antitrust immunity.” Id. at 1298.
Other cases have held the Noerr-Pennington doctrine does not immunize misrepresentations made in the administrative or adjudicative context. See, e.g., Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 124 (3d Cir.1999) (holding that material misrepresentations in an adjudicative arena are not protected by Noerr-Pennington immunity); Whelan v. Abell, 48 F.3d 1247, 1255 (D.C.Cir.1995) (finding that if sham claim involves administrative agencies, then Noerr does not protect “petitions based on known falsehoods”); St. Joseph’s Hosp., Inc. v. Hospital Corp. of Am., 795 F.2d 948, 955, reh’g denied en banc, 801 F.2d 404 (11th Cir.1986), see infra; Ottensmeyer v. Chesapeake & Potomac Tel. Co., 756 F.2d 986, 994 (4th Cir.1985) (suggesting that knowing submission of false information to police — communications which “do not constitute the type of ‘political activity’ protected by the Noerr-Pennington doctrine” — would fall within the sham exception); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir.1982) (stating that Noerr does not immunize false information given to an administrative or adjudicatory body), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983); Israel v. Baxter Labs., Inc., 466 F.2d 272, 278 (D.C.Cir.1972) (“No actions [efforts to deceive the. Food and Drug Administration] which impair the fair and impartial functioning of an administrative agency should be able to hide behind the cloak of an antitrust exemption.”).
The rationale for limiting immunity for private actors’ efforts to mislead adjudicatory or administrative officials is that these entities, as compared to legislative bodies, rely on information supplied by the parties to a greater extent than legislative bodies. Allied Tube, 486 U.S. at 499-500, 108 S.Ct. 1931. The Ninth Circuit in Clipper Exxpress, 690 F.2d at 1261, explained:
There is an emphasis on debate in the political sphere, which could accommodate false statements and reveal their falsity. In the adjudicatory sphere, however, information supplied by the parties is relied on as accurate for decision making and dispute resolving. The supplying of fraudulent information thus threatens the fair and impartial functioning of these agencies and does not deserve immunity from the antitrust laws.
The majority recognizes the decision by the Department to deny the CON involved an individualized application of established criteria. However, it attempts to reconcile the difference between the adjudicative context and legislative context by arguing that the Department’s decision to deny the certificate of need was “essential to the execution of the sovereign’s regulatory policy” regarding health care facilities. [Majority opinion at page 163]. This dis*169tinction is unpersuasive. Although the government agency’s decision on the certificate of need application could be viewed as essential to regulating health care facilities, St. Joseph’s Hospital, 795 F.2d at 955, and Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1063 (9th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1031, 143 L.Ed.2d 40 (1999), both held that misrepresentations in this context do not have Noerr immunity. Every adjudicative decision could be viewed as essential to a sovereign’s regulatory policy and thus, the majority would nullify the distinction the Supreme Court and other appellate courts have made between misrepresentations made in the legislative context as opposed to the administrative or adjudicative context.
The majority appears to argue that the process employed by the Department could uncover misrepresentations because the Department conducted its own investigation. However, in Cheminor, the governmental bodies — the Department of Commerce (“DOC”) and the International Trade Commission (“ITC”) — also conducted their own investigation, but another panel of this Court still held material misrepresentations that affect the core of the defendant’s petition will preclude Noerr-Pennington immunity. 168 F.3d at 121, 124 (stating that the “DOC and ITC make final determinations after they have conducted their own investigations ... and after they have heard further arguments from the parties involved”); see Clipper Exxpress, 690 F.2d at 1261-62 (stating that submitting false information in an adjudicatory proceeding can be the basis for antitrust liability even if the agency was not misled by the information). The majority’s view, carried to its logical extreme, would allow the more skillful liar to avoid antitrust liability so long as the decision maker conducts its own investigation.
Moreover, it is not clear the Department conducted an independent investigation. Rather, the Department relied on the Hospital defendants to give truthful information so that it could make a fully informed decision. The majority’s opinion recognizes the Board was misled because the Board “made a credibility determination” “that the project. ha[d] not been abandoned.” [Majority opinion at page 163]. However, the majority refuses to acknowledge that the Board opinion demonstrates that the denial of the CON was based on the false belief, nurtured by the Hospital defendants, that the Hospital would build its ASC.
B. Similar Cases Have Held That Misrepresentations Relating to a CON Application Do Not Enjoy Noerr Immunity
The facts in St. Joseph’s Hospital closely parallel those alleged by the plaintiff. The defendant, Memorial Medical Center (“MMC”), was the sole provider of cardiac surgery services in the relevant market area. 795 F.2d at 952. It opposed St. Joseph’s CON application, claiming it already had the capacity to perform more heart procedures in the region than required, thus making its competitor’s services unnecessary. Id. The Board relied upon this information in denying St. Joseph’s request for a CON. Id. St. Joseph’s sued, asserting MMC provided false information to the Board. Id. at 953. The court found that the misrepresentations were not made in the political arena and held that parties furnishing false information to a government agency passing on specific certificate applications are not entitled to Noerr-Pennington petitioning immunity. The court held:
When a governmental agency such as [the State Health Planning Agency] is passing on specific certificate applications it is acting judicially. Misrepresentations under these circumstances do no not enjoy Noerr immunity.
Id. at 955. Accordingly, the court reversed the district court’s decision granting the defendant’s motion to dismiss. Id. at 957.
*170The Ninth Circuit, like the Eleventh Circuit in St. Joseph’s Hospital, also held Noerr-Pennington immunity does not protect a party’s intentional misrepresentations in similar circumstances. Kottle v. Northwest Kidney Centers, 146 F.3d 1056 (9th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1031, 143 L.Ed.2d 40 (1999). As in this case, the district court in Kottle granted the defendant’s motion to dismiss. Id. at 1058-59. The Kottle court also examined allegedly false information relating to a CON application. Id. at 1058. The court stated that if misrepresentations made by a defendant were of such magnitude that the “entire CON proceeding was deprived of its legitimacy,” then the sham exception to Noerr-Pennington immunity would apply. Id. at 1063.
The misrepresentations in Kottle were made in an administrative or adjudicatory arena because the Department of Health, the decision maker, conducted public hearings, accepted written and oral arguments, permitted representation by counsel, issued written findings, and its decision was appealable. Id. at 1062. In this case, the Department also conducted public hearings, accepted evidence and argument from interested parties, made findings, and its decision was appealable. Since the court in Kottle found that the misrepresentations were not made in the political or lobbying context, the court applied a different standard than the one set forth in Omni. Id. (stating that “intentional misrepresentation to government officials” is treated differently “outside of the political realm”). The court found, however, that the plaintiffs complaint fell short of invoking the sham exception because the plaintiffs vague allegations of misrepresentation were insufficient to overcome the defendant’s Noerr-Pennington immunity. Id. at 1064. The court could not ascertain “what representations [the defendant] made, or to whom; with whom [the defendant] conspired ... or what other testimony the Department may have had that could have influenced its decision to deny [plaintiff’s CON application.” Id. In contrast, the plaintiffs complaint in this case details the alleged misrepresentations made by the defendants, and the Board decision demonstrates that such material misrepresentations influenced its decision, as well as that of the Commonwealth Court. See infra.
C. The Defendants’ Actions Nullify Their Noerr-Pennington Immunity
Our recent decision in Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir.1999), does not support the majority’s position. In Cheminor, the defendant Ethyl Corporation complained to the ITC and the DOC that plaintiff Cheminor was dumping and selling ibuprofen at less than fair value. Id. at 120. Cheminor brought antitrust claims in which it alleged that Ethyl’s statements to the ITC were baseless, made in bad faith, contained false statements, and were brought only for anti-competitive reasons. Id. The issue decided by this Court was whether alleged misrepresentations by Ethyl vitiated its Noerr-Pennington immunity. The Court in Cheminor found the alleged misrepresentations were neither material, nor affected the core of the defendant’s petition because the misrepresentations relating to the defendant’s profitability were “only a small proportion of the numerous factors the ITC must consider when making a determination of material injury.” Id. at 126. Therefore, we affirmed the decision to grant summary judgment in favor of Ethyl because Cheminor did not satisfy the first step of PRE’s sham exception to the Noerr-Pennington doctrine. Id. at 127.
Cheminor held material misrepresentations that “infect the core” of the defendant’s claim and the government’s resulting actions are not entitled to Noerr-Pennington immunity under the “objectively baseless” prong of PRE. Id. at 123. Cheminor requires evaluation of misrepresentations in determining whether a de*171fendant is entitled to Noerr-Pennington immunity. The majority relies on the following language in Cheminor to assert Cheminor stands for the proposition that this Circuit has held the misrepresentation exception is not part of its jurisprudence.
We decline to carve out a new exception to the broad immunity that Noerr-Pennington provides. Rather, we will determine whether [defendant]^ petition was objectively baseless under the Supreme Court’s test in PRE, without regard to those facts that [plaintiff] alleges [defendant] misrepresented.
Id. There are three answers to the majority position. First, it ignores the immediately succeeding sentence in the opinion:
If the alleged misrepresented facts do not infect the core of Ethyl’s claim and the government’s resulting actions, then the petition had an objective basis and will receive Noerr-Pennington immunity under the first step of PRE.
Id. I read this language as meaning that prior to determining whether the “petition had an objective basis” the Court must determine “[i]f the alleged misrepresented facts do ... infect the core of Ethyl’s claim.” Id. If they do, the misrepresentation exception applies and there can be no “objective basis” for the defendant’s position. If, on the other hand, the misrepresentation exception is not applicable, the defendant’s petition could well have an objective basis.'
Second, the majority has not explained why, if the Cheminor court held there was no misrepresentation exception to the Noerr-Pennington doctrine, it formulated a test for the misrepresentation exception and then painstakingly applied the test analyzing whether the misrepresented facts affected “the core of Ethyl’s claim and the government’s resulting action .... ” Id. Third, the court in Cheminor relied on a district court case, Music Center S.N.C. Di Luciano Pisoni & C. v. Prestini Musical Instruments Corp., 874 F.Supp. 543, 549 (E.D.N.Y.1995). The specific language cited with approval by Cheminor reads:
[A] determination [of objective basis] requires consideration, inter alia, of ... the nature of the particular allegations of the petition or actions before the administrative agency claimed to be fraudulent or improper, and whether these claimed misrepresentations or improper actions would have been significant to the ultimate outcome or continuation of the proceeding.
Cheminor, 168 F.3d at 124 (citing Music Center, 874 F.Supp. at 549) (emphasis added). If there were any doubts regarding the court’s reliance on Music Center and its approval of the misrepresentation exception to Noerr-Pennington immunity, the Cheminor court set them to rest:
If the government’s action was not dependent upon the misrepresented information, the misrepresented information was not material and did not go to the core of Ethyl’s petition. In sum, a material misrepresentation that affects the very core of a litigant’s ... case will preclude Noerr-Pennington immunity, but not every misrepresentation is material to the question of rvhether a petition such as Ethyl’s had an objective basis.
Id. at 124 (second emphasis added and footnote omitted). I am simply unable to accept the majority’s reading of Cheminor.
Further, the test set forth in Cheminor is applicable here because the alleged misrepresentations in Cheminor were made in the adjudicative context. Omni is not applicable because the alleged misrepresentations in that case were made in a legislative context. In a factually similar case, the 11th Circuit found that “[w]hen a government agency ... is passing on specific certificate [of need] applications it is acting judicially.” St. Joseph’s Hospital, 795 F.2d at 955. Misrepresentations made under these circumstances do not enjoy Noerr immunity. Id.
*172There is a final troubling aspect of the majority’s opinion. Assuming this dissent’s position is correct that Cheminor recognizes a misrepresentation exception as part of this Circuit’s jurisprudence and that the majority holds there is no misrepresentation exception to the Noerr-Pen-nington immunity doctrine, the majority has done something it cannot do. Under Rule 9.1 of the Internal Operating Procedures of this Court, “no subsequent panel overrules the holding in a published opinion of a previous panel.”
1. The Defendants’ Alleged Misrepresentations Were Material And Infected The Core Of The Defendants’ Statements To The Department
The legitimacy of the Board’s decision is in question because it relied upon materially false information and was influenced by threats of an illegal boycott. As stated previously, at this stage of the litigation, the plaintiff is entitled to all favorable inferences and resolution of factual disputes in its favor. Therefore, the court must examine whether Armstrong Surgical is entitled, at a minimum, to an inference that the misrepresentations were not only material, but also affected the core of the defendant’s claims.
The majority concluded the Board would have denied the CON application regardless of whether the Hospital ASC would be completed. However, the Board’s opinion clearly shows that it premised the denial of the CON upon the Hospital’s misrepresentation that it would complete and operate a Hospital ASC. In successive Findings of Fact the Board found:
25. The Hospital has partially completed construction of a building on its premises that would house a dedicated outpatient surgical facility.
26. Upon completion of the Hospital’s outpatient surgical facility, three of its existing operating rooms would be moved into the new building.
27. The proposed ambulatory surgery center and the one which has been partially constructed by the Hospital would serve the same population and would provide essentially the same surgical services.
28.The Applicant’s proposed ambulatory surgery center would needlessly duplicate existing facilities and health care services in Armstrong County.
Board Op. at 6 (citations omitted). Taken in context the phrase “needlessly duplicate existing facilities,” supra, can only mean that Armstrong’s proposed ASC would duplicate the proposed Hospital ASC. In addition, the letters from the 19 physicians stated that the proposed facility duplicated the services already being provided. As previously rehearsed, the Hospital parties knew there was no commitment or intent to complete a functioning Hospital ASC.
Not only the Findings of Fact, but also the Board opinion make clear that the Board, relying upon the misrepresentations of the Hospital parties, premised its denial of the CON and its entire discussion of need projection upon there being no need for two ASCs — the Hospital’s ASC and Armstrong’s ASC:
Although outpatient surgery at the Hospital is now performed in the same operating room as inpatient surgery, the Hospital has partially9 completed construction of a building on its premises to house a dedicated outpatient surgery facility. Upon completing construction, the Hospital would move three existing operating rooms into the new building.
With regard to the population to be served and the surgical services to be offered, there would be little difference between the Applicant’s ambulatory surgical center and the one that the Hospital has partially completed, except that the Applicant’s project would raise the number of operating rooms in Armstrong County above the limit set by the SHP. We conclude that approval of the instant CON application would result in needless duplication of existing facilities and health care services.
*173We believe that the factors set forth above, in themselves, are sufficient to support a finding that the Applicant has failed to establish need for the proposed facility by the population to be served....
9.Apparently, after construction of the building and some of the interior walls had been completed, staff physicians at the Hospital began to question whether a separate outpatient facility was necessary. Although the building is currently being used as a storage facility, there was credible evidence that the project has not been abandoned.
Board Op. at 14 (citations omitted). It is noteworthy that the three Commonwealth Court judges, conducting judicial review, were of the belief that the Hospital ASC would be completed:
The hospital has partially completed construction of a building on its premises that would house a dedicated outpatient surgical facility. Upon completion of the hospital’s outpatient surgical facility, three of its existing operating rooms would be moved into the new building.
The proposed ambulatory surgery center and the one which has been partially constructed by the hospital would serve the same population and would provide essentially the same surgical services. Armstrong’s proposed ambulatory surgery center would needlessly duplicate existing facilities and health care services in Armstrong county.
Commonwealth Court Op. p. 5. At the very least four judges — three Commonwealth judges and this judge — read the Board opinion as indicating that the Department believed the Hospital ASC would be completed.
The presence or absence of a Hospital ASC was significant. A CON is granted if a proposed health care expenditure will meet medical needs of the target population in an effective and cost efficient manner. See Pa. Stat. Ann. tit. 35 § 448.707. There is no question that an ASC was more cost efficient than the continued use of the six hospital operating rooms. The Hospital’s own accountant documented projected average cost savings of $400 per case if an ASC were used relative to the current Hospital operating rooms.
The issue before the Board was whether there would be overcapacity of ASCs if a CON were issued to Armstrong. Because the misrepresentations led the Board to believe there would be a Hospital ASC, it never reached the issue of delivering effective and cost efficient medical services under the scenario in which there was no Hospital ASC. There is simply no way for the District Court or this Court to determine whether the Board would have granted the CON had it known the true facts. With the Court having to accept all well-pleaded facts as true and resolve them in the light most favorable to the nonmovant, see Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998), the plaintiff is surely entitled to the reasonable inference that the Board predicated its decision, in major part, on the belief that a Hospital ASC would be completed. Therefore, I would hold the alleged misrepresentations deprive the Hospital parties of Noerr-Pennington immunity because their misrepresentations were material and infected the very essence or core of the administrative proceeding and consequent denial of the CON by the Board and affirmance of the Board’s decision by the Commonwealth Court. Where as here, the misrepresentations caused the Board and Commonwealth Court to make their determinations based upon the existence of a fictional Hospital ASC, the administrative proceeding and Commonwealth Court review have been deprived of their legitimacy.
2. Noerr-Pennington Immunity Does Not Protect Threats of an Illegal Boycott
While an issue of first impression, the question of whether Noerr-Pennington *174petitioning immunity protects threats of an illegal boycott must also be answered in the negative. The Supreme Court has stated, “[tjhere are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations.” California Motor Transp., 404 U.S. at 513, 92 S.Ct. 609. If the Supreme Court would not immunize misrepresentations in the judicial or administrative context, it surely would not immunize threats of illegal activity when they corrupt the administrative adjudication process. Where a threat of illegal activity plays such a strong role in the administrative decision-making process and forms part of the basis for an administrative decision, it is impossible to say that the process has not been corrupted. Denying Noerr-Pennington immunity to those who provide false information to the government in its deliberative decision-making process can only improve the information flowing to the government.
Attention is now turned to whether the Hospital parties are protected by state action immunity as urged by the majority.
III. Applicability of State Action Immunity
The majority opinion also dismisses Armstrong’s complaint on the theory that the Hospital defendants’ actions are immunized under the Parker state action immunity doctrine. See Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The state action immunity doctrine has two related aspects. First, as elaborated in Parker, state action immunity protects parties who engage in otherwise actionable antitrust conduct, pursuant to, and in reliance upon, state action. Second, state action immunity applies when the antitrust injury complained of arises directly from state action, as distinguished from the private action alleged in the complaint before us. Noerr, 365 U.S. at 136, 81 S.Ct. 523. In this case, neither aspect of state action immunity is applicable.3
It is clear the actions complained of were not pursuant to, or in reliance upon, state action. Indeed, reliance upon the state action of denial of the CON to immunize unlawful anti-competitive conduct which occurred prior to and caused the denial of the CON presents severe conceptual difficulties. The only state action was denial of the CON. The Hospital parties engaged in no alleged unlawful anticom-petitive behavior follotoing the denial of the CON. Rather, the misrepresentations combined with the expressed intent to engage in a boycott all occurred before the Board’s denial of the CON. With this state of affairs, it is difficult to understand how the misrepresentations coupled with the stated intent to boycott are somehow immunized by the CON, where the alleged wrongful activity itself was directed to and resulted in the denial of the CON. Furthermore, even assuming these conceptual difficulties are not insurmountable, there is no indication the Hospital parties relied upon the denial of the CON in carrying out the alleged unlawful anticompetitive behaviors, or were authorized by the state to do so. Indeed, the Parker court expressly noted that “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” 317 U.S. *175at 351, 63 S.Ct. 307. Therefore, the “authorization” aspect of state action immunity is not applicable to the facts of this case.
The second aspect of state action immunity doctrine “immunizes” antitrust injuries directly caused by state action. It is this second aspect upon which the majority opinion rests, arguing that liability for injuries caused by such state action is precluded even where it is alleged that a private party urging the action did do by unlawful conduct.
The defendants’ actions are not protected by state action immunity for two reasons. First, at least some of the injuries of which Armstrong complains were not the direct result of the only state action alleged — the denial of the CON. Second, a misrepresentation exception to state action immunity must apply under the circumstances presented by this case.
The majority finds the plaintiff failed to allege that its injuries were caused by the hospital parties’ alleged economic boycott and misrepresentations. Rather, the majority asserts the alleged injuries were either directly related to the denial of the CON, or the consequences thereof. Even accepting arguendo that state action immunity applies to this case, some of the injuries alleged by Armstrong are not the direct result of state action, but of the alleged misrepresentations and conspiracy to boycott. After reciting throughout its complaint the boycott and misrepresentations, the Surgical Center lists the following damages:
(1) Denial of the CON required to establish and operate [its ambulatory surgery center].
(2) Denial of [its] ability to establish and operate [the proposed facility].
(3) Delay in securing the required CON, if ultimately granted, for the establishment and operation of the [ambulatory surgery center].
(4) Increased costs, legal and otherwise, in pursuing Plaintiffs application for a CON.
(5) Complete loss of the value of the CON, or a reduction in its value when and if ultimately granted.
(6) Complete loss of the value of Plaintiffs [facility], or reduction of its value when and if permitted to be operated.
(7) Complete loss of, or reduction in, the income and cash flow which Plaintiff would have received from operation of the [center].
(8) Other related losses.
Because of the threatened boycott, damage claims 5, 6 and 7 would have occurred even if Armstrong had received the coveted CON. The boycott of plaintiffs surgical center by physicians who perform 90% of surgical procedures in the relevant geographic market surely would serve to reduce the value of the plaintiffs facility, either by the loss of business or the increase in costs associated with attracting personnel to the facility. An agreement to exclude the plaintiff from the relevant market by an economic boycott and misrepresentations to the Board may result in antitrust injury. See, e.g., Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 877 (3d Cir.1995) (finding complaint adequately alleged antitrust injury where plaintiff alleged that defendants unreasonably restricted his ability to practice medicine in the relevant market and thus reduced competition). Therefore, I cannot agree with the majority’s conclusion that damage claims 5, 6 and 7 stemmed from denial of the CON.
The misrepresentation exception to Noerr-Pennington immunity should also apply to state action immunity in the adjudicatory or administrative context. Where misrepresentations and/or threats of illegal activity subvert the entire decision making process, the direct cause of the injury is not the state action, but rather the misrepresentations or threats which made a decision based on accurate information impossible. See Woods Exploration & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1295 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, *17630 L.Ed.2d 736 (1972); see also Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 176, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965) (holding that procurement of patent by fraud on the United States Patent Office is actionable under the Sherman Act, notwithstanding intervening state action of granting the patent).
In the legislative arena, it is difficult to say that any particular action, no matter how inappropriate, results in a particular legislation which causes injury. However, in the administrative and judicial arenas, where agencies and courts write reasoned opinions and make decisions based on information supplied by the parties, they must depend on the parties to provide accurate information.4 As stated above, the Supreme Court has noted different standards apply to conduct in administrative or adjudicatory processes. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); see supra, Part II.A. The misrepresentations here, at the very least, largely influenced and very probably dictated the outcome of the administrative process. Under that circumstance, it is the misrepresentations, not the state action, which caused the alleged injuries and dictated the Board’s decision to deny the CON.5
Because Parker and Noerr are complementary expressions of one principle of antitrust law, a misrepresentation exception to Parker immunity is necessary to effectuate the misrepresentation exception to Noerr-Pennington immunity. Without an exception for those misrepresentations which have a pervasive influence on administrative and adjudicative decisions, only those defendants who most effectively subvert the state’s process — the ones whose improper behavior results in favorable results for them from the state’s administrative and adjudicatory processes — would be immune under state action immunity. This would not only be a perverse result, but would entirely vitiate the misrepresentation exception to Noerr-Pennington immunity.
This case is similar to Woods. In Woods, the defendants, partial owners of a natural gas field, intentionally gave false information about their production forecasts to the Texas Railroad Commission. 438 F.2d at 1295. The Commission used that information to determine allowable production. Id. The court rejected “the facile conclusion that action by any public official automatically confers exemption.” Id. at 1294 (citations omitted). The court held that state action immunity was not applicable because the misrepresentations dictated the outcome: “defendants’ conduct here can in no way be said to have become merged with the action of the state since the Commission neither was the real decision maker nor would have intended its order to be based on false facts.” Id. at 1295. Thus, the injury was not directly *177caused by state action, but by the misrepresentations: Similarly in the instant case, the Board relied on the Hospital parties’ statements of subjective intent in making its decision.
The majority believes that Woods is distinguishable from the present case because the Texas Railroad Commission “was wholly dependent on the antitrust defendants for the factual information on which it predicated its allocation of production from a given field.” [Majority opinion at 164 n. 8]. The court in Woods stated that the Railroad Commission had “no opportunity for meaningful supervision or verification” of the defendants’ statements and therefore, the Commission “must rely on the truthfulness of the gas producers.” Id. at 1295. I do not find Woods to be so different from this case. Here, the Department and Board had no way of ascertaining whether the Hospital truly intended to complete its ASC. The Department and the Board were reasonable in relying on the defendants’ statements, which clearly implied that the Hospital ASC would be completed and utilized. Further, the court in Woods did not require that the government entity be “wholly” dependent on the information provided by a defendant in order to deny state action immunity-
CONCLUSION
For the reasons stated above I would hold state action immunity does not protect the defendants’ actions. I also conclude there is a misrepresentation exception to Noerr-Pennington immunity and that it applies in this case. My view that material misrepresentations can vitiate Noerr-Pennington immunity is supported by Cheminor, 168 F.3d at 124, and the case law of other circuits, specifically the Fifth, Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1298 (5th Cir.1971), Sixth, Potters Medical Center v. City Hospital Ass’n, 800 F.2d 568, 580 (6th Cir.1986), Ninth, Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1060 (9th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1031, 143 L.Ed.2d 40 (1999), Eleventh, St. Joseph’s Hospital v. Hospital Corp. of America, 795 F.2d 948, 955 (11th Cir.1986), and District of Columbia, Whelan v. Abell, 48 F.3d 1247, 1254-55 (D.C.Cir.1995). See also Cheminor, 168 F.3d at 131 (Sloviter, J., dissenting) (citing Whelan and Kottle for the proposition that PRE preserves a fraud exception to antitrust immunity).
The misrepresentations were material as there is an overpowering inference that in denying the CON the Board accepted the Hospital parties’ misrepresentation that the Hospital would complete construction and operate a Hospital ASC. These same misrepresentations caused the Board and Commonwealth Court to pass upon the question of whether there was a need for two ASCs. Specifically, the misrepresentations deprived the Board from passing upon the CON application based upon the true facts — six hospital rooms vis-a-vis the grant of Armstrong’s application for a CON, with concomitant cost savings of $400 per case, thereby meeting the statutory goal of meeting medical needs in an effective and cost efficient manner. We do not know, of course, whether the Board would have granted or denied the CON application had its proceeding not been so pervasively infected by the misrepresentations and threat of boycott.
I respectfully and regrettably dissent for all of the reasons set forth above. While respecting my colleagues differing views, I cannot agree with them. I regret the majority result for two reasons. First, the majority opinion, in light of Cheminor, has provided little, if any, guidance to the bar, future litigants or the public. Second, to the extent the majority result provides guidance, it signals that it is .willing to immunize clear antitrust violations if they can be disguised, however disingenuously, as petitioning activities without regard to whether they are legitimate, and without *178distinguishing the arena in which they are made.
. In ruling on a motion to dismiss, the court must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff. Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). In addition, the court may consider allegations contained in the complaint, exhibits attached to the complaint, and matters of public record. See City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (1998); Steinhardt Group, Inc. v. Citicorp, 126 F.3d 144, 145 (3d Cir.1997). Accordingly, this dissent, like the majority, considers both the Board's decision and the Commonwealth Court decision.
. The Court in Noerr stated:
It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injuiy renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns.
. The staff physicians defendants eschewed reliance upon Parker state action immunity, stating in the catch line of their argument, “Plaintiff’s Attempt to Reframe this Appeal in Terms of State Action Immunity is Misguided....” Individual Appellee's Br. at 20. Further, the Hospital dropped all reference to state action immunity on appeal. Appellee's counsel made a deliberate, reasoned choice not to rely on the theory, going so far as to state that “the correctness of the District Court’s decision ... is not accurately analyzed under state action immunity.” Individual Appellee’s Br. at 22. Thus, this is not a circumstance where a litigant's counsel overlooked a theory. While this Court is not limited by positions advanced by the litigants, caution is warranted where capable counsel expressly disavow reliance on a defense. The majority nonetheless has relied upon a stale action defense explicitly and impliedly discarded by the defendants.
. It is for this reason that reliance by the majority on Sandy River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1142 (1st Cir.), cert. denied, 510 U.S. 818, 114 S.Ct. 70, 126 L.Ed.2d 39 (1993), is misplaced. That case involved a decision by a legislature to change the law in the face of a boycott. It is impossible to say that the boycott dictated the outcome of the legislature’s decision.
. The majority’s reliance on Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir.), cert. denied, - U.S. -, 118 S.Ct. 264, 139 L.Ed.2d 191 (1997), also is misplaced. There, an unaccredited law school alleged the American Bar Association engaged in anticompeti-tive conduct because graduates from unaccredited schools could not sit for most state bar examinations. This Court concluded the source of the injury was the action of each of those states because "every state retains the final authority to set all the bar admission rules." Id. at 1035. That case is distinguishable from the instant case for two reasons. First, the state action in that case was non-adjudicative in nature. Second, and more importantly, the plaintiff made no allegation that the ABA knowingly made misrepresentations which were central to each state’s actions.