GAO Interchange Study Option 4: Allowing Merchants and Issuers to Directly Negotiate Interchange Fees

This option involves granting antitrust waivers to allow merchants and issuers to negotiate Interchange rates. Collective bargaining by commercial groups, such as groups of merchants or businesses, can violate U.S. antitrust laws, an exemption from those laws would be necessary to facilitate such a process.

Valid concerns exist that such negotiations could harm small merchants and small issuers, which do not have as much leverage as larger participants and, in some cases, lack the resources to participate in bargaining sessions. It would be difficult to ensure that small issuers and small merchants benefited from collective negotiations. Small merchant would find it difficult to participate in such negotiations because of limited resources.

A significant legal barrier to implementing such negotiations is the need to obtain antitrust waivers. There are concerns about removing antitrust exemptions that are designed to protect consumers from anticompetitive practices. Department of Justice officials have expressed their historical opposition to efforts to create exemptions to antitrust laws, stating that these exemptions should be used only in the rare instances in which a public policy objective compellingly outweighed free-market values.

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