230 F.3d 276 (7th Cir. 2000)
ROY L. ENDSLEY III and STEPHEN GRAHAM,  Individually and on Behalf of Those Similarly  Situated, Plaintiffs-Appellants,v.CITY OF CHICAGO, Defendant-Appellee.
No. 99-2859
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 20, 2000Decided October 12, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.  No. 98 C 8094--William T. Hart, Judge.[Copyrighted Material Omitted]
Before Manion, Rovner, and Williams, Circuit Judges.
Williams, Circuit Judge.


1
Plaintiffs challenge the  City of Chicago's use of tolls collected on the  Chicago Skyway to pay for some of the City's non-  Skyway related transportation improvements. In  1995, the Skyway began producing revenue that  exceeded its operating expenses. Prior to that  time, the City used Skyway tolls exclusively to  operate and maintain the Skyway. In 1996, the  City decided to refinance outstanding Skyway debt  and raise additional revenues for non-Skyway  expenses through a new bond issue ("Series 1996  Bond Issue"). Plaintiffs seek to prevent use of  Skyway revenues to pay for non-Skyway expenses  and challenge the City's action on four separate  grounds (1) violation of federal transportation  statutes; (2) violation of antitrust laws; (3)  violation of the Constitution's dormant Commerce  Clause; and (4) violation of various state laws.  The district court dismissed plaintiffs'  complaint in its entirety for failure to state a  claim. Because we find that the City's use of  Skyway revenue for non-Skyway projects does not  amount to a constitutional violation of any sort,  we affirm.


2
* Roy Endsley and Stephen Graham are users of the  Chicago Skyway toll bridge, a 7.8 mile long high-  speed, limited access highway that joins the  Indiana Tollway with the rest of Interstate 90 at  the Illinois-Indiana border. The Skyway is one of  two Interstate routes that connect Chicago's Dan  Ryan Expressway (Interstate 90/94) to the Indiana  Tollway. The other is the Borman/Kingery/Bishop  Ford Expressway (Interstate 80/94). When the  Skyway was constructed in the late 1950s, it was  paid for with private funds raised from the sale  of revenue bonds in 1955 and 1957. Under the  terms of the sale, the bonds were to be repaid  solely from available Skyway toll revenues and  the City itself was not obligated to repay the  bonds.


3
The revenue raised by the Skyway tolls is  heavily dependent on traffic volume. When traffic  on the Skyway is heavy, more drivers pay the toll  and more revenue is generated. Conversely, when  traffic is low, the Skyway produces less revenue.  On several occasions prior to 1996 (fourteen  times), the City has raised the toll rates in  order to pay the Skyway's maintenance and  operating costs and to make the Skyway "a self-  sufficient enterprise."1 As a result, the  current toll rate schedule ($2.00 or 25.6 cents  per mile for most automobiles) is higher than the  rate for other highways in the area.


4
Over the last ten years, the Skyway has enjoyed  an increase in available funds. In 1991, the  Skyway received $14.2 million in federal funds.  In 1994, the City refunded the aggregate  principal of outstanding Skyway revenue bonds by  selling new ones. And in 1995, traffic volume on  the Skyway increased significantly such that net  revenues were projected to be $11.5 to $17.1  million annually through the year 2000. In 1996,  the City sold Skyway bonds again ("1996 Bond  Sale") and proceeds of the sale were sufficient  to repay the outstanding aggregate principal  amount of the 1994 bonds and the related  refinancing costs. The excess $52 million raised  was used to fund other City transportation  improvements. As with past bond sales, the 1996  bonds are to be repaid solely from revenues the  Skyway generates through tolls and concessions.  At no time prior to 1996 did the City use Skyway  revenue for purposes other than the maintenance  and operation of the Skyway.


5
Endsley and Graham brought a class action suit  against the City challenging its use of the $52  million raised by the 1996 Bond Sale for non-  Skyway improvements. The City filed a motion to  dismiss the action which the district judge  granted pursuant to Federal Rule of Civil  Procedure 12(b)(6). Endsley and Graham now  appeal. We review the district court's decision  to grant a motion to dismiss de novo. See Hentosh  v. Finch Univ. of Health Sciences, 167 F.3d 1170  (7th Cir. 1999).

II

6
On appeal, plaintiffs maintain that the City's  use of proceeds from the 1996 Bond Sale for non-  Skyway improvements violated various federal  transportation statutes, antitrust laws, and the  Commerce Clause of the Constitution. We consider  each challenge in turn.

A.  Federal Transportation Statutes

7
Plaintiffs contend that the City has violated  two federal transportation statutes, 23 U.S.C.  sec. 301 and 23 U.S.C. sec. 129(a)(3)2 which  when read together, regulate the entities  operating tollways and receiving federal funds.  Section 301 generally prohibits state and local  entities from charging tolls on highways that  receive federal funding. Section 129 creates an  exception to that rule, allowing operation of  tollroads only under certain conditions. Endsley  and Graham argue that the City's failure to meet  the conditions required under sec. 129 gives rise  to a private right of action. It is clear that  the City has not violated sec. 301. However,  plaintiffs insist that the City has violated sec.  129 and they try to liken the language of sec.  301, which at least one court has found does  create a private right of action,3 to that of  sec. 129(a)(3), which on its face does not. The  district court distinguished sec. 301 from sec.  129(a)(3) and rejected this approach. "If the  City has violated sec. 129, any violation may be  properly redressed by the Secretary of  Transportation. . . . There is no compelling  reason why private persons such as plaintiffs .  . . should have the right to seek federal court  action to aid in enforcement of this portion of  the statute." The district judge's analysis is  right on point. No express or implied private  right of action was created by sec. 129. Neither  a review of the language nor a consideration of  the statute's intended beneficiaries, its  legislative history, or the purpose of the  statutory scheme suggest that it was. See Cort v.  Ash, 422 U.S. 66, 78 (1975).


8
Nothing in the express language of the statute  suggests that sec. 129(a)(3) creates a private  right of action. Section 129 simply requires the  Transportation Secretary and the tollway  operating entity (here, the City) to enter into  an agreement which sets forth a list of  priorities for the spending of toll revenues by  entities receiving federal funding under the  statute. Under such an agreement, the City would  be required to use toll revenues first for debt  service, then for reasonable return on private  investment in the project, then for any  maintenance and operation costs. Therefore, the  City's use of funds for non-Tollway expenses  before fulfilling these other obligations would  violate the agreement between the City and the  Secretary of Transportation, not sec. 129.


9
Furthermore, a close review of the language,  structure, and history of sec. 129 suggests that  no implied private right of action exists either.  As we acknowledged in Mallett v. Wisconsin  Division of Vocational Rehabilitation, 130 F.3d  1245, 1248-49 (7th Cir. 1997), the Supreme Court  has retreated from the four-part test established  in Cort v. Ash, 422 U.S. 66, 78 (1975), to  determine whether an implied cause of action  exists under a statute.4 See also, Transamerica  Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,  15-16 (1979) ("[W]hat must ultimately be  determined is whether Congress intended to create  the private remedy asserted."). Instead of  applying the four-part test, we now focus  primarily on legislative intent. "Our inquiry is  whether Congress intended an implied right of  action . . . in light of the statute's language,  structure, and legislative history. If such  inferences of intent are not present, we must  conclude that the essential predicate for  implication of a private remedy does not exist."  Mallett, 130 F.3d at 1249 (internal citations  omitted).


10
As we noted above, neither the language nor the  structure of sec. 129 indicate that Congress  intended to create a private right of action. A  look at the legislative history suggests the  same. Section 129 was created to authorize  federal participation in, and funding for, the  creation and maintenance of highways that  facilitate travel among various states and  cities.5 It is by and large an appropriations  provision designed to "strengthen the highway and  transit components of a national intermodal  transportation" by contributing $153.5 billion in  federal funds. See H.R. Rep. 102-171, at 10  (1991), reprinted in 1991 U.S.S.C.A.N. 1526. It  is important to note that in enacting sec. 129,  one of Congress' goals was to give state and  local authorities more flexibility in spending  federal highway funds. "The Committee feels that  one of the most important things this legislation  can do is give state and local officials the  flexibility to make the crucial decisions on how  their funds should be used. [Under sec. 129,]  [t]hey will have the ability to choose the best  transportation solution without the artificial  constraints of funding categories." Id.


11
The provision upon which plaintiffs rely, sec.  129(a)(3), regulates the manner in which the  entities operating federally funded tollways  spend the revenues raised by the tolls charged.  However, it does not operate to control state and  local government use of tollway revenues  completely. In fact, the legislative history  indicates that Congress sought to encourage  private investment in the nation's highways and  public investment in privately operated toll  roads such as the Skyway and give state and local  entities more freedom to raise and use revenues  as they see fit--just within certain limits.6  Although willing to permit these innovative  partnerships to form through the use of federal  funds on privately-owned toll roads, Congress  enacted sec. 129(a)(3) to strike a balance among  the private and public interests involved in the  operation of tollways like the Skyway. The  provision simply sets forth limitations on the  use of revenues for those highways that receive  funding from the U.S. Department of  Transportation under the statute. The existence  of these limitations do not lead us to the  conclusion, however, that Congress intended to  open the door to private enforcement of them.


12
As in other cases where the Supreme Court has  found no implied right of private action, sec.  129 contains no judicial, or even administrative,  remedy through which aggrieved persons can seek  redress. See Blessing v. Freestone, 520 U.S. 329,  348 (1997) (holding that a Social Security Act  provision contained no private remedy, either  judicial or administrative, through which  aggrieved persons could seek redress). Like many  statutes appropriating federal funds and  regulating the use of those funds, the only way  sec. 129 assures that the City will abide by the  statute's rules is through oversight by an  executive agency official, here the Secretary of  Transportation. Any violation of the provision's  mandates will be handled by the Secretary of  Transportation, not private citizens. It is as  Congress intended it to be. A strong presumption  exists against the creation of an implied private  right of action and where, as here, there is  nothing in the legislative history to suggest  that such a right was intended, we will not imply  a private right of action where none appears in  the statute. See Statland v. American Airlines,  Inc., 998 F.2d 539, 540 (7th Cir. 1993) (quoting  West Allis Mem'l Hosp., Inc. v. Bowen, 852 F.2d  251, 254 (7th Cir. 1988)).


13
Seeking to salvage their transportation statute  claims, plaintiffs also challenge the district  court's denial of their motion for leave to amend  the complaint. The district court correctly  denied this motion. For even if plaintiffs were  to bring the sec. 129 claims by way of 42 U.S.C.  sec. 1983, they would still lose. "Section 1983  is not available to enforce a violation of a  federal statute where Congress has foreclosed  enforcement in the enactment itself and 'where  the statute did not create enforceable rights,  privileges, or immunities within the meaning of  sec. 1983.'" Suter v. Artist M., 503 U.S. 347,  355-56 (1991), (citing Wright v. Roanoke  Redevelopment & Hous. Auth., 479 U.S. 418, 423  (1987)). As such, the district judge did not err  in denying plaintiffs' motion to amend.

B.  Section 2 of the Sherman Act

14
Plaintiffs next seek relief under sec. 2 of the  Sherman Act.7 The district court held that  plaintiffs failed to plead sufficient facts to  show the City possessed monopoly power as  required under the Act. Section 2 forbids not the  intentional pursuit of monopoly power but the  employment of unjustifiable means to gain that  power. See 3 P. Areeda & D. Turner, Antitrust Law  para. 626c, at 76 (1978). "The offense of  monopoly under sec. 2 of the Sherman Act has two  elements (1) the possession of monopoly power in  the relevant market and (2) the willful  acquisition or maintenance of that power as  distinguished from growth or development as a  consequence of a superior product, business  acumen, or historic accident." Eastman Kodak Co.  v. Image Technical Servs., 504 U.S. 451, 481  (1992) (citing United States v. Grinnell Corp.,  384 U.S. 563, 570-71 (1966)). In support of their  argument, plaintiffs assert that the Skyway is  the "only high-speed limited access route  connecting the Dan Ryan expressway in Chicago to  the Indiana Tollway." To satisfy the second  element, plaintiffs maintain that by charging an  arbitrary and unreasonable toll which brings in  revenue exceeding the cost of operating the  Skyway, the City is engaging in anti-competitive  conduct.


15
As a preliminary matter, plaintiffs argue that  the district judge erred in taking up the  question of market power on a motion to dismiss.  He did not. We acknowledge that frequently,  questions of whether the defendant possessed the  requisite market power to establish a monopoly  are addressed in a motion for summary judgment or  trial. See State of Ill. v. Panhandle E. Pipe  Line Co. Med. Ctr., 935 F.2d 1469, 1472 (7th Cir.  1991); Nelson v. Monroe Reg'l Med. Ctr., 925 F.2d  1555, 1557 (7th Cir. 1990). However, where  plaintiffs fail to identify any facts from which  the court can "infer that defendants had  sufficient market power to have been able to  create a monopoly," their sec. 2 claim may be  properly dismissed. Hennessy Indus. Inc. v. FMC  Corp., 779 F.2d 402, 405 (7th Cir. 1985). See  also, BCB Anesthesia Care v. Passavant Mem'l Area  Hosp. Ass'n, 36 F.3d 664, 668 (7th Cir. 1994)  (affirming dismissal of a Sherman Act claim on a  motion to dismiss, noting, "sometimes the  conclusion follows a motion to dismiss; more  often the decision is one of summary judgment,  but often it appears that the record relied upon  [in rejecting plaintiff's antitrust claim] is the  absence of facts indicating special circumstances  raising antitrust concerns").


16
Here, plaintiffs' complaint does not contain  facts allowing an inference that the City has  monopoly power. It is true that Leatherman v.  Tarrant County, 507 U.S. 163 (1993), bars the  district court from applying a heightened  pleading standard in antitrust cases. See MCM  Partners v. Andrews-Bartlett & Assocs., 62 F.3d  967, 976 (7th Cir. 1995). However, to survive a  motion to dismiss, plaintiffs still must set  forth facts sufficient to create an inference  that defendant had enough market power to create  a monopoly. See Hennessy, 779 F.2d at 405. The  facts do not suggest that the City has monopoly  power in the relevant market (high-speed limited  access routes connecting Chicago to Indiana). At  least two alternate routes, the  Borman/Kingery/Bishop Ford Expressway and the  Tri-State Tollway, "compete" with the Skyway.  While the Skyway may be the more desirable route,  it is not the only high-speed roadway between  Chicago and the Indiana Tollway. If the Skyway  tolls become too high, drivers will take one of  the alternate routes. The availability of these  very viable options for a high-speed access route  linking Chicago to Indiana indicates that the  City does not have monopoly power over the  relevant market.


17
Even if it could be said that the City  possessed monopoly power, plaintiffs have not  presented sufficient facts to meet the second  requirement under sec. 2, anti-competitive  behavior or abuse of market power. The mere  existence of the power to control prices or  exclude competition is not unlawful unless it is  coupled with intent. See United States v.  Griffith, 334 U.S. 100, 107 (1948), disapproved  on other grounds by Copperweld Corp. v.  Independence Tube Corp., 467 U.S. 752 (1984). By  intent, we do not mean intent to obtain a  monopoly or to capture an ongoing increase in  market share. This of course is the aim of every  business endeavor. Under sec. 2, intent to obtain  a monopoly is unlawful only where an entity seeks  to maintain or achieve monopoly power by anti-  competitive means. As such, the Sherman Act does  not prohibit an entity possessing market power  from simply raising prices in order to increase  revenues. For a sec. 2 violation, more is needed.  See U.S. Steel Corp. v. Fortner Enters., Inc.,  429 U.S. 610, 612 (1977).


18
The City's decision to raise the cost of Skyway  tolls and raise additional revenue for other  transportation projects is not, in and of itself,  anti-competitive. To the contrary, we have  recognized that "[v]irtually all business  behavior is designed to enable firms to raise  their prices above the level that would exist in  a perfectly competitive market." Panhandle E.  Pipe Line, 935 F.2d at 1481. In fact, we have  noted that when an entity raises prices,  competition is enhanced and therefore, in some  cases, anti-trust claims are precluded. See O.K.  Sand & Gravel, Inc. v. Martin Marietta  Technologies, Inc., 36 F.3d 565, 573 (7th Cir.  1994) (citations omitted). While a consumer may  suffer anti-trust injury when higher prices  result from some unlawful monopolistic conduct,  in this case, plaintiffs have not identified such  conduct.8 Plaintiffs plead facts showing the  City using anti-competitive behavior neither in  their alleged attempt to gain monopoly power  (such as forming a conspiracy or an unlawful  combination), nor in their alleged attempt to  maintain it (such as tying Skyway use to another  product).9 They cite only the higher Skyway  tolls, or the "overcharge" as they label the  increased tolls, as evidence of unlawful anti-  competitive behavior. Plaintiffs have failed to  identify any facts which point to the City's  alleged anti-competitive use of its power to  control the price of the Skyway tolls. Therefore,  we conclude that the district court did not err  in dismissing plaintiffs' antitrust claim.10

C.  Commerce Clause

19
Finally, plaintiffs assert that because the  Skyway financing scheme and the tolls charged are  not apportioned to the use or cost of operating  the Skyway, the City has unreasonably burdened  interstate commerce and violated the  Constitution's dormant Commerce Clause. The  Commerce Clause is an affirmative grant of power  to Congress. U.S. Const. art. I, sec. 8, cl. 3.  Where Congress has not exercised its powers under  the Commerce Clause, states generally are free to  legislate over that area unless or until Congress  decides to take action. The Supreme Court has  read the Commerce Clause to create not only  affirmative powers to legislate, but also a  negative implication that limits state action as  well. See Hughes v. Oklahoma, 441 U.S. 322, 326  (1979); Southern Pac. Co. v. Arizona, 325 U.S.  761, 769 (1945); Gibbons v. Ogden, U.S. (9.  Wheat) 1, 199-200 (1824). As a result, the  dormant Commerce Clause is invoked to scrutinize  state regulations that burden interstate  commerce, even in the absence of conflicting  congressional legislation.


20
Under dormant Commerce Clause precedent, "a levy  is reasonable . . . if it (1) is based on some  fair approximation of use of the facilities, (2)  is not excessive in relation to the benefits  conferred, and (3) does not discriminate against  interstate commerce." Northwest Airlines, Inc. v.  County of Kent, Mich., 510 U.S. 355, 369 (1993).  Rather than argue that its Skyway tolls meet this  test, in its defense the City asserts that since  it acts as a proprietary enterprise in its  operation of the Skyway, its decision to raise  the Skyway tolls and use revenue for non-Skyway  expenses is protected by the market participant  doctrine. The market participant doctrine  "differentiates between a State's acting in its  distinctive governmental capacity, and a State's  acting in the more general capacity of a market  participant; only the former is subject to the  limitations of the negative Commerce Clause." New  Energy Co. of Ind. v. Limbach, 486 U.S. 269, 277  (1988).


21
Therefore, the question before us is whether in  operating the Skyway, the City was acting as a  participant or regulator of the local highway  system. Here, plaintiffs sealed their own fate by  including in their complaint the following "Since its inception, the City has operated the  Skyway as a proprietary enterprise, and not in  its governmental capacity." We have long held  that a plaintiff may plead himself out of court  by including factual allegations which, if true,  show that his legal rights were not invaded. See  Stewart v. RCA Corp., 790 F.2d 624, 632 (7th Cir.  1986), American Nurses' Ass'n v. Illinois, 783  F.2d 716, 724 (7th Cir. 1986). In affirmatively  stating that the City runs the Skyway as a  proprietary enterprise, plaintiffs fatally injure  their Commerce Clause claim.


22
Even if plaintiffs had not plead themselves out  of court, the facts suggest that the City was  indeed a market participant. "The  market-participant doctrine permits a State to  influence a discrete, identifiable class of  economic activity in which it is a major  participant." South-Central Timber Dev. v.  Wunnicke, 467 U.S. 82, 97 (1984) (internal  citations omitted). Courts have recognized the  operation of private toll roads as legitimate  economic activity. See Overstreet v. North Shore  Corp., 318 U.S. 125, 127 (1943); Lane  Construction Corp. v. Highlands Ins. Co., et al.,  207 F.3d 718, 720 (4th Cir. 2000). The City sold  revenue bonds to pay for construction of the  Skyway and funds Skyway maintenance and operation  by charging drivers a toll. As owner and operator  of the property, the City offers drivers access  to the Skyway in exchange for a fee. At times,  when the Skyway was not raising sufficient  revenue, the City would fund debt service and  maintenance costs. These facts suggest that the  City was acting as a property owner, using its  property to raise money, not as a regulator.


23
Plaintiffs contend that while the City may be  acting as a market participant, at the same time,  by levying a toll on the Skyway, it is acting (in  a hybrid role) as a market regulator. Courts  interpreting the Commerce Clause have long  struggled to draw the line between that which is  considered a government function or regulatory  activity and that which is considered proprietary  activity. See Garcia v. San Antonio Metropolitan  Transit Auth. 469 U.S. 528, 545 (1985) ("the goal  of identifying 'uniquely' governmental functions,  for example, has been rejected by the Court . .  . in part because the notion of a 'uniquely'  governmental function is unmanageable."); Nat'l  League of Cities v. Usery, 426 U.S. 833, 851  (1976) (attempting to define the scope of  governmental functions protected from federal  regulation under the Commerce Clause), overruled  by Garcia, 469 U.S. at 557; New York v. United  States, 326 U.S. 572, 584 (1946) (concluding that  the distinction between 'governmental' and  'proprietary' functions was 'untenable' and that  it had to be abandoned). However, in determining  whether the market participant doctrine applies,  we have remained loyal to this cumbersome, yet  necessary dichotomy. E. & E. Hauling v. Forest  Preserve Dist. of DuPage County, Ill., 821 F.2d  433, 438 (7th Cir. 1987) (finding that the Forest  Preserve acted as regulator not a market  participant); W.C.W. Window Co. v. Bernardi, 730  F.2d 486, 494 (7th Cir. 1984) (citing White v.  Mass. Council of Construction Employers, Inc.,  460 U.S. 204 (1983)). Where, as here, the facts  and circumstances suggest that a government  entity is acting as a market participant rather  than a market regulator, the doctrine will apply  and that entity will not be subjected to the  limitations provided by the dormant Commerce  Clause.


24
A government entity is acting as a market  regulator when it enacts rules that "whether by  statute, regulation, or contract, . . . have a  substantial regulatory effect outside of that  particular market." South-Central Timber, 467  U.S. at 97. In support of their position,  plaintiffs cite the Fifth Circuit case, New  Orleans S.S. Ass'n v. Flaquemines Port, Harbor  and Terminal Dist., 874 F.2d 1018 (5th Cir. 1989)  (holding that a New Orleans port could charge  ships traveling the Mississippi River a  reasonable port fee for emergency response  services without violating the Commerce Clause).  This case actually offers support for the City's  market participant argument. The court explained  that the Port acts as a market participant when  it "offers a service and receives payments tied  to the costs of providing the service, just as  would a private business. This fee-for-service  approach is not a regulation, as, for example,  would be a rule requiring every ship to provide  its own fire fighting and rescue equipment." Id.  at 1021. While the court noted that the Port was  also acting in its capacity as government  regulator of health and safety by using the money  for emergency response services, the  circumstances here are distinguishable. Nothing  about the City's efforts to raise revenue by  charging a Skyway toll suggests that it is acting  as a regulator rather than a market  participant.11


25
Overall, the facts suggest that the City is  protected by the market participant doctrine. As  such, the district judge correctly dismissed  plaintiffs' Commerce Clause claims.

III

26
For the reasons set forth above, we AFFIRM.



Notes:


1
 Oftentimes, the toll rates were increased  pursuant to a federal court order which came out  of a lawsuit brought by bondholders against the  City.


2
 29 U.S.C. sec. 301 reads, "Except as provided in  section 129 of this title with respect to certain  toll bridges and toll tunnels, all highways  constructed under the provisions of this title  shall be free from tolls of all kinds."
29 U.S.C. sec. 129(a)(3) reads
Before the Secretary may permit  Federal participation under this  subsection in construction of a highway, bridge,  or tunnel located in a State, the public  authority (including the State transportation  department) having jurisdiction over the highway,  bridge, or tunnel must enter into an agreement  with the Secretary which provides that all toll  revenues received from operation of the toll  facility will be used first for debt service, for  reasonable return on investment of any private  person financing the project, and for the costs  necessary for the proper operation and  maintenance of the toll facility, including  reconstruction, resurfacing, restoration, and  rehabilitation. If the State certifies annually  that the tolled facility is being adequately  maintained, the State may use any toll revenues  in excess of amounts required under the preceding  sentence for any purpose for which Federal funds  may be obligated by a State under this title.


3
 In Clallam County v. Washington, the Ninth  Circuit held that sec. 301 provides the predicate  right giving rise to a sec. 1983 action, because  while Congress neither created nor prohibited an  express remedy under Title 23, sec. 301  (mandating toll-free bridges) was intended to aid  bridge users, by providing free access across  waterways. Therefore, the plaintiffs were members  of a class granted enforceable rights. 849 F.2d  424, 429 (9th Cir. 1988).


4
 Under Cort, to determine if Congress intended to  create a private right of action, the court would  consider 1) whether the plaintiff is a member of  the class for whose benefit the statute was  enacted; 2) whether there is any indication of  legislative intent to create or deny such a  remedy; 3) whether an implied remedy is  consistent with the underlying purposes of the  statutory scheme; and 4) whether the cause of  action is one traditionally relegated to the  states so that it would be inappropriate to infer  a federal remedy. Cort, 422 U.S. at 78.


5
 Generally, the Intermodal Surface Transportation  Efficiency Act of 1991 Pub. L. 102-240, 105 Stat.  1914, was established "to develop a national  intermodal surface transportation system, to  authorize funds for construction of highways, for  highway safety programs, and for mass transit  programs, and for other purposes." (codified as  amended at 23 U.S.C. sec. 129 (2000)).  /6 "The public-private partnership is important and  should be encouraged. From the Federal  perspective, one of the ways to approach  infrastructure improvement would be to ease  unnecessary Federal constraints preventing the  mixing of Federal dollars with private funds on  projects." Id. at 27.


6
 "'The Public-private partnership is important and should be encouraged.  From the Federal perspective, one of the ways to approach infrastructure improvement would be to ease unnecessary Federal constraints preventing the mixing of Federal dollars with private funds on projects." Id. at 13, 1991 U.S.C.C.A.N. at 1539.


7
 15 U.S.C. sec. 2 provides in pertinent part,  "Every person who shall monopolize, or attempt to  monopolize, or combine or conspire with any other  person or persons, to monopolize any part of the  trade or commerce among the several States, or  with foreign nations, shall be deemed guilty of  a felony. . . ." Originally, plaintiffs sought  relief pursuant to sec. 1 of the Sherman Act as  well. However, as they fail to raise any argument  concerning sec. 1 in their briefs, we will  address their sec. 2 claim only.


8
 See O.K. Sand & Gravel, 36 F.3d at 573 ("if . .  . [plaintiff] were arguing that it was injured as  a consumer, higher prices in output due to an  unlawful combination would be the 'type' of  injury the antitrust laws intend to prevent").


9
 On appeal, plaintiffs rely solely on their  assertion that the City abused its market power  by raising the Skyway tolls and using revenues  for non-Tollway expenses. They do not revisit  their argument that the City has engaged in an  unlawful tying arrangement by conditioning access  to the Skyway on payment of money to fund non-  Skyway transportation improvements. Even if they  did, a review of the law and common sense  suggests that this argument also fails. "A tying  arrangement cannot exist unless two separate  product markets have been linked." Jefferson  Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 20-  21 (1984). Drivers who pay Skyway tolls are not  purchasing a separate product that is somehow  linked to the Skyway. The non-Skyway  transportation improvements involve streets and  roads throughout the city that drivers use for  free.


10
 As we have found that plaintiffs cannot meet the  requirements to show a sec. 2 Sherman Act  violation, we need not reach the City's state  action immunity defense.


11
 Even though it considered the Port's activity a  hybrid of market regulation and participation,  the court in New Orleans Steamship, affirmed the  district court's dismissal of plaintiffs' claims.  The Fifth Circuit held that charging ships for  access to certain services was permissible under  the Commerce Clause. New Orleans Steamship, 874  F.2d at 1022.


