Yesterday, the Supreme Court ruled that credit card provider American Express' long-standing policy of including anti-"steering" clauses in its contracts with merchants was not anti-competitive.
Steering is the practice whereby merchants discourage customers from paying with comparably high-cost cards like Amex and to use Visa or Mastercard instead. Importantly, anti-steering agreements do not limit merchants' ability to favor debit cards or cash in their dealings with customers. The majority opinion, drafted by Justice Clarence Thomas, argues that there was no evidence of consumer harm in the form of higher prices or reduced output as a result of Amex' anti-steering requirements.
The Court notes that the credit-card market is a market for transaction services and is two-sided, involving two distinct and interdependent sets of customers: merchants (who sell goods and pay fees to credit-card providers) and buyers (who use credit cards to pay for merchants' goods).
Two-sided markets require a somewhat more sophisticated analysis in antitrust cases because of the interdependence of each side. For example, in a one-sided market, increasing merchant fees might be regarded as evidence of an abuse of monopoly power. In a two-sided market, such a fee increase can in fact be pro-competitive if it leads credit-card providers to offer better service to the other side of the market (buyers) thus increasing their purchases from merchants.
The peculiarities of two-sided markets have been noted by a long line of economists, including the 2014 Nobel Prize laureate Jean Tirole. His analysis, among others, was cited by Justice Thomas in his opinion.
Indeed, the evidence suggests that competition in the credit-card market is thriving. Take-up of cards has boomed since the 1970s. There is an endless variety of offerings among the various providers, with different (or no) annual charges, a diverse menu of rewards programs, and of course a range of interest rates on outstanding balances. In March, Amex in fact announced that it would cut its merchant fees to better compete with lower-cost providers. Since 2004, Amex fees have dropped by 10 percent.
However, even allowing that anti-steering agreements are not anti-competitive, could it be true nonetheless that anti-steering agreements hurt particular groups of consumers? Brookings' Aaron Klein thinks so. In a piece published in the wake of yesterday's ruling, he argues that "[the U.S.] payment system […] rewards the wealthy while penalizing the poor" and "functions as a hidden method of increasing income inequality."
Klein's argument is that anti-steering agreements lead merchants to increase prices. But because only Amex cardholders secure the countervailing benefits – in the form of rewards programs and an increased ability to use their cards in daily purchases – and because Amex cardholder incomes tend to be higher than average, there is a regressive impact on lower-income households. They get the higher prices induced by Amex fees but cannot share in the benefits.
Leave aside for a moment that anti-steering agreements, as Justice Thomas observed, only apply to credit cards and not to other forms of payment, which means that merchants can in fact price-discriminate by setting minimum purchase thresholds and surcharges for using credit cards (as many do). Even ignoring this possibility, which Klein leaves unacknowledged, his claim of regressivity is not as straightforward as might at first be apparent, for several reasons.
1. Merchants' decision to sign anti-steering agreements is voluntary.
Merchants do not forcibly sign anti-steering agreements with Amex. They only do so if they believe it is in their benefit to accept Amex cardholders, which is a function, first, of the fees charged by Amex compared to other card networks, and, second, of the share of purchases paid for with Amex cards which would not happen if the merchants refused to take Amex.
The emphasis is important because many cardholders multi-home, meaning that they hold Visa or Mastercard as well as Amex for instances in which one might not be accepted. My dry cleaner does not take Amex but that has not yet deprived her of my custom.
Thus, merchants will only agree to the anti-steering conditions if the income earned from Amex purchases which could not otherwise be earned exceeds the cost of higher Amex fees. Many merchants will find accepting Amex worthwhile, but some will not. Indeed, there are still many outlets where all credit cards but Amex (and possibly Discover) are accepted.
In a competitive market with many providers and low switching and search costs (all of which broadly characterize most American retail markets), merchants will ask for the same price, adjusted for convenience factors such as the acceptance of Amex cards. Those who buy at Amex-positive outlets will pay a premium for it, while those who forgo the opportunity to buy with Amex can opt for other providers, who – other things being equal – will offer lower prices.
2. Amex cardholders and non-cardholders are different people, buying different things.
As Klein's piece notes, lower-income households tend to have fewer credit card options, if any, than higher-income households. But to infer that the worse-off are therefore subsidizing the better-off because all pay the same price, but only cardholders get the rewards, is one simplification too many.
Households with different incomes differ not only in their likelihood of holding an Amex card, but also in the kinds of stores they patronize and the kinds of products they buy. This means that merchants have some means to make Amex cardholders internalize the price externality they would otherwise impose on non-cardholders, by passing on the Amex fees mainly, or exclusively, to those products that Amex cardholders buy.
Any pass-through will be crude because there is always overlap between the products bought by each of the two groups, but the homogeneous price increase for all customers posited by Klein is unlikely to reflect merchants' reaction in practice.
3. There may be progressive redistribution among Amex cardholders.
Klein objects to the supposedly regressive impact of anti-steering agreements on those who do not hold Amex cards. But the existence of Amex rewards programs made possible by the anti-steering rules may be progressive, that is, it may redistribute benefits from higher-income to lower-income cardholders.
To see how this can be the case, consider that Amex cards tend to come with a "welcome bonus" involving, usually, a disproportionate amount of rewards (air miles, or gas points, or something else) for the first $1,000 spent on the card. These rewards are presumably as costly for Amex to give as any other rewards, so that the welcome gift must be subsidized from Amex' ongoing business. The more households spend on their card above and beyond the first $1,000, the more they are subsidizing other cardholders. Furthermore, because card expenditure is broadly correlated with income, it is plausible that higher-income cardholders subsidize lower-income cardholders, for whom the first $1,000 are a bigger share of lifetime card expenditure.
This redistribution would offset the regressivity of steering restrictions on other buyers, to the extent there is any.
4. Innovation depends on a share of initial customers' paying higher prices.
Innovations are always costlier at first. F.A. Hayek noted in The Constitution of Liberty that, without intending it, the rich who can afford new innovations help to make them progressively more accessible by encouraging investment and competition in the provision of the innovative good or service. From the personal computer to the smartphone to the transatlantic passenger flight, modern life is rich with examples of such gradual expansion in people's access to new goods and services.
Credit cards are no exception. Justice Thomas noted that, since the 1950s when credit cards were first introduced, merchant fees have dropped by more than half. Because of the network effects characteristic of two-sided markets, every decrease in fees has likely disproportionately increased the amount of merchants accepting cards and the number of cardholders. The result is higher welfare for all and more widely shared affluence.
But this virtuous cycle depends on the ability of competitors to offer different price and quality options to prospective customers. Amex' business model of higher merchant fees in exchange for more generous rewards programs is one form that such competition can take.
Klein concludes his piece by noting that financial technology can resolve the "inefficiencies of the current payment system [which] cry out for new financial technological solutions." In this he is doubtless correct, if the history of financial innovation is anything to go by. Yet, to blame American Express for the remaining imperfections in the payment system would not just be wrong — it would be counterproductive.