640
Scalia, J., concurring
not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. Fisher v. Berkeley, 475 U. S. 260 (1986) (private actors not liable without private action). And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor Corp. v. Duffy, 479 U. S. 335, 344, n. 6 (1987) (a statute specifying the margin between wholesale and retail prices may satisfy the active supervision requirement). In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust liability.
IV
In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring.
The Court's standard is in my view faithful to what our cases have said about "active supervision." On the other hand, I think The Chief Justice and Justice O'Connor are correct that this standard will be a fertile source of uncertainty and (hence) litigation, and will produce total aban-
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