644
Rehnquist, C. J., dissenting
much more closely attuned to our "have and exercise power" formulation in Patrick v. Burget than is the rule adopted by the Court today. The Court simply does not say just how active a State's regulators must be before the "active supervision" requirement will be satisfied. The only guidance it gives is that the inquiry should be one akin to causation in a negligence case; does the State play "a substantial role in determining the specifics of the economic policy." Ante, at 635. Any other formulation, we are told, will remove the active supervision requirement altogether as a practical matter.
I do not believe this to be the case.3 In the States at issue here, the particular conduct was approved by a state agency. The agency manifested this approval by raising no objection to a required rate filing by the entity subject to regulation. This is quite consistent with our statement that the active supervision requirement serves mainly an "evidentiary function" as "one way of ensuring that the actor is engaging in the challenged conduct pursuant to state policy." Hallie v. Eau Claire, 471 U. S. 34, 46 (1985).
The Court insists that its newly required "active supervision" will "increase the States' regulatory flexibility." Ante, at 636. But if private actors who participate, through a joint rate filing, in a State's "negative option" regulatory scheme may be liable for treble damages if they cannot prove that the State approved the specifics of a filing, the Court makes it highly unlikely that private actors will choose to participate in such a joint filing. This in turn lessens the States' regulatory flexibility, because as we have noted before, joint rate filings can improve the regulatory process by ensuring that the state agency has fewer filings to consider, allowing more resources to be expended on each filing.
3 The state regulatory programs in Midcal, supra, Patrick v. Burget, 486 U. S. 94 (1988), and 324 Liquor, supra, would all fail to provide immunity for lack of active supervision under the test adopted by the Court of Appeals.
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