Full opinion text
MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW HOEVELER, District Judge. INTRODUCTION This case involves a claim by plaintiff, NaBanco that defendant, VISA has violated the Sherman Antitrust Act, causing plaintiff damages. Defendant issues the VISA card, used by many as a method of payment for goods and services, in connection with the transfer of transaction paper from a merchant through its bank to the card issuing bank. VISA regulations call for payment of an interchange fee (“IRF”) if its exchange system is used. The interchange fee is set by the VISA Board of Directors. Plaintiff, among other things, asserts that the methods of setting and determining the interchange fee involves price fixing and are anti-competitive. Defendant asserts that the setting of the fee is reasonable, not only in method but in amount, and further that the VISA regulations encourage competition and are not in violation of the Act. The Court has determined that the plaintiff, NaBanco has failed to prove its case and that judgment shall be entered in favor of the defendant, VISA. The last 150 years have witnessed the evolution of several distinct methods of payment for goods and services. Just as we once moved from an economy which relied heavily on barter as a primary means of exchange to an economy based on cash, so we now find ourselves increasingly becoming a “cashless” society. Today it is not unusual to find major sectors of the buying public foresaking cash in favor of credit cards and, even more recently, debit cards. Unlike consumer currency purchases, however, these newer payment forms leave a residue of paper credits and debits which must somehow be cleared in order to complete a particular consumer transaction. Like any major economic transition, the movement from cash to cashless payment systems is not without growing pains. This case is itself evidence of the fact that social or economic change often leaves in its wake those who feel aggrieved by the process. National BanCard Corporation (“NaBanco”) brought this action against VISA U.S.A., Inc. and the members of the VISA Board of Directors (hereinafter referred to collectively as “VISA”) for alleged violations of Section 1 of the Sherman Act, 15 U.S.C. § 1. In its complaint NaBanco alleged a continuing combination and conspiracy by VISA to fix and maintain the price paid for bank credit card “interchange” transactions. For this claimed offense NaBanco sought damages in excess of three million dollars, trebling of damages, injunctive relief, attorneys’ fees, and costs. Jurisdiction of this court was invoked pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, and pursuant to 28 U.S.C. § 1337. The case was tried by the court without a jury. It began May 10,1982 and, to accommodate the pressing criminal docket of the Southern District of Florida, continued in segments of one or more weeks until its conclusion in January of 1984. The total trial time was in excess of nine weeks during which the court reviewed thousands of pages of exhibits and heard in person or by deposition dozens of witnesses, experts and otherwise. Based upon this record, and for the reasons enunciated below, the court finds that plaintiff NaBanco has failed to prove any of the alleged antitrust violations with which it has charged VISA. THE BANK CREDIT CARD INDUSTRY The issues raised in this case can best be defined and understood in the context of the bank credit card industry and its history- In the early 1800’s, the two principal means of commercial transactions payment devices were bank notes issued by state banks and drafts. These payment forms satisfied the needs of commerce at a time in history when consumers and merchants would usually reside and do business in the same geographical area. Accordingly, payment media rarely had to be sent beyond the local area. Bank notes, issued by the local bank or banks, circulated through the immediate region and were used to a far greater degree than currency is used today. In the larger local transaction, and also in the relatively infrequent long-distance transaction, the draft was the typical medium used. However, rapid technological changes in both transportation and communication in the mid-1800’s, heightened the need for a medium of exchange which was acceptable to diverse and unknown persons across the country and which could travel easily and cheaply. The check was increasingly employed to meet these needs. Despite the check’s utility, other payment devices arose to meet more specific consumer needs. About a century after the check gained common acceptance, the bank credit card was introduced. The chief antecedents of this card were the retail merchant’s “open book” account and the somewhat later-developed but more closely-analogous “travel and entertainment” cards. Unlike either of its two predecessors, however, the bank credit card has come to play a much more versatile role in the universe of payment systems. The bank credit card provides many of the same services as the personal check, but, in addition, provides retailers of goods and services an extra measure of protection from the risk of default. Incident to the system, and in most cases, the banks, not the retailers, are responsible for seeking payment from the retailers’ customers. As in the case of the check, the bank credit card system is principally a four-party payment arrangement. It involves: (1) cardholders who use bank credit cards to purchase goods and services; (2) merchants who accept bank credit cards in exchange for goods and services; (3) financial institutions (issuer banks) which issue cards to, and contract with, cardholders; and (4) financial institutions (merchant banks) which contract with merchants to accept the bank credit card and thereafter manage the bank credit card accounts of these merchant clients. A typical transaction can be most simply described as follows: Once a potential consumer has opened a bank credit card account with a particular issuing bank, he or she may use that bank credit card in lieu of cash to purchase goods and services from any merchant participating in that particular bank credit card system. The merchant, after a sale, then transmits the consumer/cardholder’s draft evidencing this transaction (referred to in the parlance of the industry as “paper”) to its merchant bank, this sum being immediately credited to the merchant’s account minus a small charge agreed upon earlier by contract (called the “merchant discount”). If the merchant bank happens to be the same bank which issued the card, the consumer/eardholder’s account in the bank will be processed “in-house” in what has been described as an “on-us” transaction. When the issuer bank differs from the merchant bank, the process becomes more complicated. First, the merchant bank sends the transactional paper to the issuer bank. The issuer bank then will either send the merchant bank the requisite sums due and owing from its cardholder, or will directly credit the merchant bank’s account at the issuer bank, if the merchant bank has such an account. In either case, the issuer bank is ultimately responsible for the sums due and owing from its cardholders, and thus, absent a breach of agreed procedure by the merchant or merchant bank, the issuing bank bears the risk of default by the cardholder. The process by which transactional paper is moved from the merchant bank to the issuer bank involves certain costs. In the system at issue here, the issuer bank withholds a small amount (called the “interchange fee”) from the monies due and owing the merchant bank to cover the costs of this processing. Even more simply stated, the merchant bank (if not the issuer of the card used in a sale) must process the paper generated by the sale to realize both the small profit hopefully provided in the merchant’s discount charge to the retailer and reimbursement for the sale amount credited to the account of the retail merchant. The paper then goes to the issuer bank which reimburses the merchant bank but only after the deduction of the interchange fee. This interchange fee is the subject of the dispute in this case. THE PARTIES The VISA System: Its History and Its Product One of the most successful three-party bank cards was the California-based Bank of America’s (“BA’s”) local prototype credit card program, the BankAmericard. This program expanded in 1960 to a statewide system to take advantage of the ever-increasing pool of people amenable to credit card use within the state. This expansion increased the base over which the costs of the system could be spread. Still, the nationwide expansion of its principal competitors’ operations (travel and entertainment cards) in conjunction with dramatic technological changes in data-processing and electronic communications soon led BA to develop its own national credit card program in 1966. The BA network was achieved by means of a franchise program which permitted BA-licensed local banks across the country to issue credit cards bearing the BankAmericard name. The licensee banks actually owned the credit cards they issued, and created their own receivables by signing up local merchants who would accept the card. Licensees were also encouraged to engage other non-issuer banks as their agents to expand the merchant base still further. With the advent of the BankAmericard licensing program came the concept of the interchange fee, referred to earlier as a means of paying for costs associated with transferring transactional paper. Included in the licensing agreement was a provision indicating the sum or “fee” licensees were entitled to receive when purchasing their cardholders’ paper in interchange. The agreement provided that the merchant-servicing licensee had to send to the card-issuing licensee either the actual merchant discount earned in each interchange transaction, or the merchant bank’s “average” merchant discount. (Emerson TR. at 54. 1/13/84); Russell TR. at 15. (1/16/84); Exh. 2007. Between 1966 and early 1970, many of the BA licensees grew in size and expertise and accordingly moved for the creation of a system which could more accurately reflect their individual interests and concerns, as well as address some of the more pressing problems facing the licensee system. (Larkin, TR. 232-33; (1/11/83). These concerns led to the formation of NBI, a for-profit, non-stock-membership corporation which was established in 1970. Along with the formation of NBI came a new conceptual model for the interchange fee. The new fee was adopted by the NBI Board of Directors in 1971, in response to serious problems of uncertainty and instability which the old fee system could not resolve since it was based upon each merchant bank’s interpretation of how much was due and owing to issuer banks. The new, uniform fee was based upon a cost-reimbursement methodology developed in conjunction with Arthur Anderson and Co., the national accounting firm, and was called the “Issuer's Reimbursement Fee” (hereinafter referred to as “IRF”). This fee or charge reflected the concept of calculated reimbursement. In 1977, NBI changed its name to VISA and exclusive rights to the name “BankAmericard” reverted to BA. To become a VISA member, of which there were approximately 13,400 in 1983, a financial institution must be eligible for federal deposit insurance. Upon proper application, any eligible institution can serve either as a proprietary member or as an agent of a proprietary member. There were 1866 proprietary members in 1983. Each can perform the function of issuing cards to cardholders and of signing merchants to participate in the VISA system. Proprietary members also elect VISA’S governing Board of Directors which makes the rules under which the system operates. Agent members, 11,537 strong in 1983, elect only to contract with merchants on behalf of proprietary members; they are not eligible to vote for Board members and therefore do not play as significant a role as proprietary members in determining VISA policy. It is important to understand that at all times material to the claims in this case, VISA did not require its participating members to interchange paper through the VISA system. Rather, members could elect to exchange transactional paper pursuant to separately negotiated agreements with other members without the imposition of an exchange fee by the VISA system. If, however, members choose instead to interchange their paper through VISA, the data on the paper will be sent in electronic form by the merchant bank (or its processing agent) through what is known as the VISA Base II computer system to the issuer bank (or its processing agent). It is only when members use BASE II to interchange their paper that interchange will be governed by the highly complex set of VISA Operating Regulations, which includes the IRF and other rules governing the conditions under which issuer banks are required to “purchase” transactional paper from merchant banks. NaBanco Plaintiff, NaBanco, formed under the name Southern Bankcard Corporation in 1974, is neither a proprietary nor an agent member of VISA. It is not eligible for VISA membership because it is not a financial institution eligible for federal deposit insurance. It participates in the VISA bank credit card business by contracting with various VISA members to serve as their processing agent, thereby obtaining access to the VISA Base II system. In its capacity as an agent for a VISA member, NaBanco typically performs activities similar to those performed by merchant banks, such as providing authorization services and services relating to the processing of merchant transactions. The majority of NaBanco’s business is with VISA members who have already negotiated and contracted with particular merchants. Bull TR. 670-72 (5/13/82). Na-Banco then provides its services pursuant to the contract it has with the VISA member, ordinarily electing not to be paid a transaction fee for such services but to receive instead most or all of the merchant discount revenues that merchants would otherwise remit to the VISA member. In return for these merchant discount receipts, NaBanco agrees to discharge the VISA member’s obligation to pay the IRF whenever sending data in interchange through VISA’S Base II system. Bull TR. 336 (5/11/82) Exh. 6. Nevertheless, under VISA’S rules, the VISA member continues to remain legally liable to VISA for payment of the interchange fee on all such transactions. In a minority of cases, NaBanco, on behalf of VISA members, negotiates directly with merchants regarding merchant discount rates and other terms of the services to be provided to them. In this capacity, NaBanco competes with nearly all of the VISA members, and testimony both from merchants and from VISA members indicates that NaBanco is one of the leading contenders for the business of major retailers nationwide. THE NATURE OF THIS ACTION Among other bases for plaintiffs charges of antitrust violations by defendant, plaintiff contends that the interchange fee requirement (when processing through BASE II) diminishes its ability to compete for merchant business on an equal basis with VISA member banks which do both issuing and merchant business. The “on-us” transaction (where the card issuing bank and the merchant contracting bank are the same) does not present the need for interbank exchange. Thus, says NaBanco, these proprietary members of VISA — who have cooperated in mandating the interchange fee in non “on-us” transactions, have curtailed its ability to compete. “On-us” transactions occur with the greatest frequency in the immediate geographic vicinity of a VISA member bank (especially where that member is a large card issuer) since it is in this area that a local merchant is most likely to have an account with the same bank as an area resident/cardholder. NaBanco argues that in order to compete effectively with VISA member banks, it has had to develop relationships with merchants outside its immediate geographic market and find retailers with sufficient locations, or a broad enough customer base, so that the effects of “on-us” transactions are eliminated or at least minimized. Bull TR. 249 (5/11/82). NaBanco also claimed it has found it necessary to sign up merchants in the United States who cater to tourists whose cards have been issued outside the United States. Alternatively, NaBanco argued it has had to establish agency relationships with banks outside the United States since the interchange fee charged on international transactions has traditionally been less than that charged for domestic exchanges. Bull TR. 275-277 (5/11/82). Nonetheless, NaBanco has claimed it can cite numerous examples of its inability to compete with VISA member banks for merchant contracts due to the competitive advantage these banks enjoy from “on us” transactions. Given the fact that both “onus” and IRF transactions involve many of the same types of processing costs whether they occur “in-house” or not, NaBanco has questioned the intent of VISA in setting particular IRF levels. Specifically, NaBanco has contended that IRF is not cost-related and, therefore, is either unnecessary or set intentionally high so as to discourage competitors such as NaBanco. In the NaBanco scenario, individual merchant banks compete with it to sign up and serve merchants but unfairly so when they are also in the position of issuer banks because in this latter sense they act like a group of competitors who have conspired to sell goods to one another (actually to themselves) at a lower rate than the one offered NaBanco as a non-issuer bank thus affecting the price at which NaBanco can offer its merchants services. Since NaBanco believes that individual issuer and merchant banks can and should negotiate with one another over the price to be paid for transactional paper, VISA member banks, says NaBanco, are nothing more than a group of competitors whose setting of IRF is akin to horizontal price-fixing for transactional paper and, therefore, such conduct is absolutely proscribed by Section 1 of the Sherman Act. In terms of remedies, NaBanco has asked that this court enjoin VISA from setting IRF at any level other than “par” (zero) so that financial institutions with large numbers of “on-us” transactions will have no competitive edge over entities like NaBanco which have few or none. Essentially, NaBanco has asked the court to “fix” its own price for IRF but in accordance with terms NaBanco considers fair. Alternatively, NaBanco has asked the court to enjoin VISA from setting any particular IRF, thus permitting each merchant bank (or NaBanco) to establish individually-negotiated “IRFs” with issuer banks. In addition, NaBanco has sought over three million dollars in damages, trebled, to compensate it for the several years during which it paid IRF to its alleged detriment. STANDING TO SUE Before reaching any of NaBanco’s antitrust arguments, it is necessary to address defendant VISA’S argument that NaBanco lacks standing under the antitrust laws to bring its action. Since NaBanco brought this action seeking both damages and injunctive relief, and since the standards for standing differ as to each, two separate but related standing analyses follow. Standing to Bring The Treble Damages Claim Under Section 4 of the Clayton Act, “any person ... injured in his business or property by reason of anything forbidden in the antitrust laws” may recover treble damages plus costs and attorney’s fees. 15 U.S.C. § 15. The Supreme Court has stated that § 4 on its face contains little in the way of restrictive language, but has read the “by reason of” language cited above as encompassing several separate and analytically distinct elements, each implying that the statute is not as broad as its words suggest. Neither courts nor parties to antitrust actions have been scrupulous in their attempts to keep the various restrictions on a plaintiff’s right to a treble damage action separate and distinct. All seem to agree that a plaintiff must initially establish the existence of a causal connection between defendant’s antitrust violation and plaintiff’s injury. McClure v. Undersea Indus., Inc., 671 F.2d 1287, 1289 (11th Cir.1982), cert, denied, 460 U.S. 1037, 103 S.Ct. 1427, 75 L.Ed.2d 788 (1983) (“The term ‘fact of damage’ refers to causation and simply means ‘that the antitrust violation cause injury to the antitrust plaintiff.’ ” (quoting Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 317 (5th Cir.1978).)). Once the causal connection between plaintiff’s injury and defendant’s act is shown, however, the courts begin to differ about what additional elements a plaintiff must prove in order to successfully bring a treble damage action. The cases suggest there are at least two, perhaps three, additional requirements for standing to maintain a treble damage action. The first of these requirements takes many forms, as most courts vacillate between the two alternative techniques of (a) measuring the directness of the injury complained about and (b) asking whether the plaintiff falls within the target area of the violation. The second requirement, which some courts do not distinguish from the standing requirement, is that an antitrust plaintiff must prove he has suffered “antitrust injury,” as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); i.e., injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. Finally, some plaintiffs must also address the issue of defensive and offensive use of “pass-on” damages, considered by the Supreme Court in Hanover Shoe v. United Shoe Mach. Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) and Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). For the most part, courts deal with this last issue in conjunction with their discussions of the standing argument, perhaps because of a dearth of Supreme Court opinions delineating the standing requirement; however, it is important to note that neither Hanover Shoe nor Illinois Brick are “standing” cases per se. Therefore, to the extent the policies these cases promote are relevant to a discussion of a plaintiff’s right to bring a treble damage action and are not addressed in a court’s discussion of a plaintiff’s “standing” to bring such an action, they must be separately considered. Tests for Standing Lower federal courts have adopted various tests for antitrust “standing” to preclude suits by plaintiffs considered too remote from the alleged violation to be entitled to recover damages. Some cases have applied a “direct injury” test of standing which focuses on the relationship between the plaintiff and the alleged antitrust violator. Repp v. F.E.L. Publications, Ltd., 688 F.2d 441, 444-45 (7th Cir.1982); Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1149 (6th Cir.1975); In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 127 (9th Cir.1973), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Generally, a plaintiff separated from the violator by one or more intermediate tiers of victims lacks standing under the direct injury test because, by analogy to tort law, the injury received is too remote to be fairly characterized as proximately resulting from the defendant’s antitrust violation. Today, no circuit continues to apply a strict “direct injury” test. Instead, courts borrow from the language of that analysis, as well as from that of Hanover Shoe and Illinois Brick, to discourage or dismiss suits brought by plaintiffs whose injuries result from chains of events too speculative to justify treble damages. In essence, this is the position taken by VISA in arguing that NaBanco is not a “direct purchaser” of IRF and is therefore not eligible to recover overcharging damages. Only the merchant banks with which NaBanco contracts or, alternatively, the merchants themselves, are direct enough purchasers of IRF to be eligible to sue under Section 4 according to VISA. There is some support for VISA’S position in cases which have held, based in part on the policies underlying Illinois Brick, that a plaintiff who purchased from a non-conspiring competitor of horizontal price-fixing defendants may not recover damages on the theory that the company from which it purchased charged an artificially inflated price under the “umbrella” of the defendant’s price-fixing conspiracy. Mid-West Paper Prods., 596 F.2d 573, 587; In re Folding Carton Antitrust Litigation, 88 F.R.D. 211, 219-20 (N.D.Ill.1980); In re Petroleum Prods. Antitrust Litigation, 497 F.Supp. 218, 227-228 (C.D.Cal.1980), affd on other grounds, 691 F.2d 1335 (9th Cir.1982); Liang v. Hunt, 477 F.Supp. 891, 896-97 (N.D.Ill.1979); cf In re Petroleum Prods. Antitrust Litigation, 691 F.2d 1335, 1341 (9th Cir.1982) (Illinois Brick bars umbrella claim in the context of a multi-tiered distribution chain). The other test popular among courts and, as NaBanco is quick to point out, routinely employed in this Circuit, focuses on the nature of the antitrust violation and the plaintiffs relationship to the area of the economy claimed to have been injured by the defendant’s conduct. Const. Aggregate Transport v. Florida Rock Ind., 710 F.2d 752 (11th Cir.1983); Litton Sys., Inc. v. American Tel. & Tel. Co., 700 F.2d 785, 821 (2d Cir.1983); Aurora Enters., Inc. v. National Broadcasting Co., 688 F.2d 689, 692-93 (9th Cir.1982); In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 433, 435-36 (5th Cir.1982); Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 12-15 (1st Cir.1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980); see also Cleary v. Chalk, 488 F.2d 1315, 1319 n. 17 (D.C.Cir.1973), cert. denied, 416 U.S. 938, 94 S.Ct. 1940, 40 L.Ed.2d 289 (1974) (citing decisions under the target area standard without expressly adopting that test). Called the “target area” test, it requires the plaintiff to establish that he was “within that section of the economy ... endangered by a break-down of competitive conditions in a particular industry” and that the illegal practices were aimed at him. Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1131 (5th Cir.1975). See also Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347 (5th Cir.1976); see also Southern Concrete Co. v. United States Steel Corp., 535 F.2d 313 (5th Cir.1976); Buckley Towers Condominium, Inc. v. Buchwald, 533 F.2d 934 (5th Cir.1976). Unfortunately, courts which have used a target area analysis to determine antitrust standing have never agreed on the general requirements of the test, sometimes resulting in apparently inconsistent conclusions. This situation led the Court in Yoder Bros., supra, 1360, to comment: “A test focusing on the sector of the economy is more stated than applied.” Similar kinds of problems in applying the “direct injury” test have led the Third Circuit, as well, (and to some extent the Eighth Circuit; Paschall v. Kansas City Star Corp., 605 F.2d 403, 409-10 (8th Cir.1979)) to reject both tests in favor of a case-by-ease approach called the “factual matrix” test. Cromar Co. v. Nuclear Materials & Equipment Corp., 543 F.2d 501 (3d Cir.1976). The Sixth Circuit has adopted for antitrust matters the test employed for determining standing in administrative law cases, i.e. requiring the plaintiff to show that its affected interests arguably are within the “zone of interests” protected by the antitrust statutes. Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1148 (6th Cir.1975); see also Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1234 (6th Cir.1981), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981). At the heart of the Third Circuit’s “factual matrix” test is a recognition of the reason for the existence of different Section 4 requirements; i.e., the multifaceted problem of determining when a person is sufficiently “injured in his business or property by reason of anything forbidden in the antitrust laws” so as to be eligible to sue for treble damages. Thus, the Mid-West Paper Prods, court concluded that only together do the separate Section 4 requirements “constitute the judicial gloss upon the words of § 4 by which the courts have patrolled the portals to a treble damage action.” Mid-West Paper Prods., supra, 582. Citing the observation of the Supreme Court in Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), that underlying the precepts that guard access to Section 4 is the recognition that the treble damage action represents a congressional determination that the antitrust laws be enforced in large measure by “private attorneys general” who are encouraged to sue by the prospect of recovering three times their actual damages, the Third Circuit went on to say: Accordingly, whether the issue is the definition of injury in § 4, or the use of pass-on theories, or the proper scope of the standing doctrine, the line drawing that necessarily takes place is informed by an inquiry into what posture best effectuates the dual purposes of the treble damage remedy, namely, compensating victims of antitrust violations for their injuries and deterring violators by depriving them threefold of “the fruits of their illegality,” while at the same time furthering the overriding goal of the antitrust laws — preserving competition. Mid-West Paper Prods. at 583 (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 262, 92 S.Ct. 885, 891, 31 L.Ed.2d 184 (1972)). Aside from these basic objectives of antitrust enforcement, “... additional concerns must be addressed in determining whether antitrust goals would be furthered by adopting a particular position. Among such concerns are whether a duplicative or ruinous recovery will result and whether resolution of the claim will unduly complicate the trial by necessitating the pursuing of complex and conjectural economic lines of causation and effect.” (citations omitted). This court could certainly do worse than to adopt these principles as its own in deciding whether or not NaBanco has standing to bring its treble damage action. This is not to say this court adopts the “factual matrix” test used by the Third Circuit. Neither, however, does the court feel bound by the dictates of the target area test as NaBanco urges. The Eleventh Circuit in Construction Aggregate Transport (supra) may have been correct in characterizing the Supreme Court’s decision in Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) as implicitly sanctioning continued, flexible use of the target area test. The two recent Supreme Court decisions which have even addressed the standing issue, Blue Shield and Associated Gen. Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), while never going so far as to adopt any particular test, have acknowledged their existence as tools to be employed by courts to determine standing, as such tests are useful. Nevertheless, the Associated Gen. Contractors case, following on the heels of Blue Shield, seems to have gone further than Blue Shield in not only refusing to adopt any of the particular tests used by various circuit courts but in actually delineating the skeleton of a new standing test for treble damage actions. The Supreme Court observed, in reference to different standing tests, that “these labels may lead to contradictory and inconsistent results.” Associated Gen. Contractors, supra. Likening the task of federal judges to articulate a precise test to determine antitrust standing in treble damage actions to the struggle of common-law judges to announce a precise definition of the concept of “proximate cause,” the Supreme Court emphasized the virtual impossibility of announcing a “black-letter rule that will dictate the result in every case,” in light of the infinite variety of claims that can arise in the antitrust context. Id., 459 U.S. at 537, 103 S.Ct. at 908, 74 L.Ed.2d at 737. Instead, the Supreme Court suggested that courts “analyze each situation in light of the factors set forth” in its analysis of the plaintiff’s standing position in the case before it. Id. 103 S.Ct. at 908 n. 33. In light of its opinion in Associated Gen. Contractors, the Supreme Court vacated and remanded two appeals court decisions for further consideration, and, following that lead, several courts have concluded that the Associated Gen. Contractors opinion requires rejection of standing tests previously adopted by the courts of appeals. See Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983); see also Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290 (6th Cir.1983); Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958 (3rd Cir.1983); Indium Corp. of Am. v. Semi-Alloys, Inc., 566 F.Supp. 1344 (N.D.N.Y.1983); Chelson v. Oregonian Publishing Co., 715 F.2d 1368 (9th Cir.1983). The Eleventh Circuit in Construction Aggreg. (supra) while citing the Supreme Court’s Associated Gen. Contractors decision, did not expressly consider the effect of that decision on the continued validity of the target area analysis. Thus, the scope of Construction Aggreg. as it relates to this question limits its application to the facts of this case. Associated General Contractors, supra, at 908 n. 33. Whether or not Associated General Contractors truly represents a new standard for antitrust “standing,” or is rather a purely semantical argument, this court adopts its language as the most thorough pronouncement of the Supreme Court to date on the standing issue in treble damage actions. At its core, Associated General Contractors admonishes us “to evaluate the plaintiff’s harm, the alleged wrongdoing by the defendants, and the relationship between them” in the context of common-law damages litigation in 1890. 459 U.S. 519, 535, 103 S.Ct. 897, 907, 74 L.Ed.2d 723, 736. As guideposts for this evaluation the Court pointed to “previously decided cases [which] identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances.” 459 U.S. at 537, 103 S.Ct. at 908, 74 L.Ed.2d at 737. In light of the facts before it the Supreme Court found at least two factors favoring judicial recognition of the plaintiff’s antitrust claim: (1) a causal connection and (2) intent to harm, although as to this latter factor the Supreme Court reiterated its Blue Shield holding that “[t]he availability of the § 4 remedy to some person who claims its benefit is not a question of the specific intent of the conspirators.” 459 U.S. 537, 103 S.Ct. 908, 74 L.Ed.2d 738 (quoting Blue Shield, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149.) Factors favoring the defendants and which the Supreme Court concluded were controlling in Associated Gen. Contractors included: (1) “the nature of the plaintiff’s alleged injury,” (citing Brunswick v. Pueblo Bowl-O-Mat) 459 U.S. 538, 103 S.Ct. 908, 74 L.Ed.2d 738 and (2) “the directness or indirectness of their asserted injury.” 459 U.S. 540, 103 S.Ct. 910, 73 L.Ed.2d 739. As to the issue of “directness” the Supreme Court first identified the chain of causation then highlighted the importance of finding an “identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement ... [and therefore] diminish the justification for allowing a more remote party to perform the office of private attorney general.” (459 U.S. p. 542, 103 S.Ct. p. 911, 74 L.Ed.2d p. 741). As part of its discussion of the “directness or indirectness” of the plaintiffs harm, the Supreme Court also raised its concerns about highly speculative damage claims, saying: “The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within practically manageable ' limits. These cases have stressed the importance of avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other.” 459 U.S. 543-544, 103 S.Ct. 911-912, 74 L.Ed.2d 741-42. Turning now to the case at hand, the court first points out that a plaintiff’s “standing to sue” is a preliminary matter to be evaluated in this circuit upon the pleadings alone. Const. Aggregate Transport at 763; Yoder Bros, at 1359 (standing to sue is a preliminary matter to be evaluated upon the allegations of the complaint). NaBanco’s. allegations that it has been unable to compete against VISA member banks for merchant contracts due to the competitive advantage these banks enjoy from “on-us” transactions seem sufficient on their face to suggest a harm causally related to VISA’S setting of an IRF. VISA’S argument that NaBanco’s own conduct severs the chain of causation because it has had realistic alternatives available to it to avoid paying IRF misses the mark. The antitrust laws do not require a potential plaintiff to take extraordinary measures to avoid anticompetitive activity; in fact, this is one of the things the antitrust laws are designed to prevent. Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 1054, 12 L.Ed.2d 98 (1964); Columbia Broadcasting System, Inc., v. ASCAP, 562 F.2d 130, 136 (2d Cir.1977), rev’d on other grounds, 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979). Further, the court finds that, under any characterization of antitrust standing currently urged upon us, NaBanco is a technically proper party to bring suit for treble damages. Using the methodology developed by the Supreme Court in Associated Gen Contractors, the court does not find that plaintiff has alleged or proved any specific intent on the part of VISA to harm NaBanco or those who stand in Na-Banco’s shoes but neither is such intent a necessary prerequisite to Section 4 standing. Plaintiff’s alleged injuries are of the type Congress sought to remedy in providing a private remedy for violations of the antitrust laws. This is not a case, like Brunswick, in which plaintiff argues that the anticompetitive behavior by defendant (here, the setting of IRF) led to loss of profits due to increased competition in the market. Rather, NaBanco complains that it has been unable to compete effectively with some VISA merchant banks due to price-fixing by VISA. NaBanco not only argues the potential for current competitive losses, but argues that innovative technological changes are being discouraged by VISA’S anticompetitive activities. To the extent that such changes also present the possibility for increased competition in the future, NaBanco seems to have more than sufficiently met the requirement of Section 4 standing to bring its challenge to VISA’S Interchange Fee Arrangement. Finally, the court does not find that Na-Banco’s alleged harm is either too remote or indirect to prohibit it from bringing its treble damage action. In this case, the “chain of causation” between plaintiff’s claimed injury and the alleged restraint promoted by VISA seems “direct” enough to sustain plaintiff’s standing. To argue, as VISA does, that the more appropriate plaintiffs are the merchant banks because they alone are in privity with VISA is to ignore the economic reality. While it is true that VISA merchant banks remain ultimately responsible for IRF, they are not primarily liable for its payment in all cases. Primary liability also lies with NaBanco as the merchant banks’s functional equivalent in those cases in which VISA merchant banks (in contract with NaBanco) choose not to process transactional paper generated by VISA card purchases. In this way NaBanco aids the smooth functioning of the VISA system, a role which VISA should be reluctant to attentuate inasmuch as some of its participating merchant banks evidently do not find it cost-effective to perform the processing function themselves. Further NaBanco points to significant technological changes which it has made to accommodate changes in VISA’S processing methodology. Bull TR. 593 (5/12/82) P.Ex. 1172; D.Ex. 1180. Insofar as these are changes which have not had to be made by VISA merchant banks which use NaBanco or NaBanco-like institutions to process transactional paper, VISA member banks are hardly in a position to say that they are more directly affected by the setting of IRF than NaBanco. Similarly, VISA’S argument that Illinois Brick outlaws treble damages for “functional equivalents” is misplaced. Associated Gen. Contractors demonstrates that, to the extent that Illinois Brick is relevant to antitrust standing, it is so in how the policies identified and promoted by that decision relate to the standing issues presented in this case. The Illinois Brick Court was primarily concerned with problems of dual recovery and the possibility of having to calculate the variable incidence of harm experienced by different antitrust victims where offensive use of pass-on damages was alleged. Arguably, these are problems which also arise in the context of this case. For instance, it is possible, as VISA points out, that some of the merchant banks with which NaBanco contracts actually absorb some of the costs and economic consequences associated with IRF in their individual contracts with NaBanco. This would, of course, cause problems for the court in calculating the extent of damage borne by NaBanco versus that borne by the merchant banks with which NaBanco contracts. But identifying the merchant banks as the more appropriate plaintiffs to bring this action does not eliminate our problems regarding the calculation of damages. In fact, it compounds them. At least when NaBanco pays IRF we can assume, even if not with complete accuracy, that it bears the full economic cost of that payment without having to examine its individual contracts with merchant banks. It becomes harder for us to make that assumption in the case of merchant banks which use NaBanco since these banks do not pay IRF directly but only by virtue of whatever amount their contracts with Na-Banco suggest they pay. We have similar problems with VISA’S alternative argument that merchants, not merchant banks, are more appropriate plaintiffs than Na-Banco to bring this suit. If what VISA is really arguing is the defense of pass-on damages, the court notes that this defense is only applicable where there is an existing “cost-plus” contract or its functional equivalent; i.e., a contract in which the impact of the illegal overcharge is determined in advance of the actual overcharge without reference to the interactions of supply and demand and other market forces. Hanover Shoe, 392 U.S. at 494, 88 S.Ct. at 2232 (supra); In Re Plywood Antitrust Litigation, 655 F.2d 627 (5th Cir.1981). An argument that NaBanco’s contracts were really cost plus or a legal equivalent is, at least, superficially persuasive. However, NaBanco’s response to what it perceived to be the IRF problem was varied and thus, presents a set of facts in which the “cost plus” assertion appears wanting. Further, VISA’S standing agreement suffers from a consideration of the second of the dual concerns of the Illinois Brick Court, the impairment of anti-trust enforcement by a reduced incentive to sue. In Illinois Brick and Hanover Shoe the Supreme Court voiced this particular argument in terms of the diffusion of benefits to each plaintiff when potential recoveries had to be divided among a large group of plaintiffs down the line of economic causation, saying: “Added to the uncertainty of how much of an overcharge could be established at trial would be the uncertainty of how that overcharge would be apportioned among the various plaintiffs.” Illinois Brick 431 U.S. at 745, 97 S.Ct. at 2074. By allowing enforcement only by those who actually pay IRF, we limit the pool of potential plaintiffs. Thus, the concern for reducing the effects of treble damage suits brought by indirect purchasers with a smaller stake in the outcome is alleviated. Illinois Brick at 724, 97 S.Ct. at 2064. Even more importantly, however, we assure ourselves of a potential plaintiff at the very least. NaBanco does fall prey to some of the same conflicts of interest which beset many VISA member banks which both issue cards and serve merchants, raising questions about its ability to pursue vigorously any cause of action against VISA; however, in arguing that only merchant banks have standing to sue it, VISA essentially invites its members to sue themselves for antitrust violations from which they in fact may benefit. While the possibility of suit by VISA member banks does exist, it is also more reasonable to conclude that member banks will attempt to ameliorate any problems they have with the IRF via their more direct access to the VISA Board of Directors. This opportunity is less available to NaBanco as a VISA non-member. Injunctive Relief Aside from seeking treble damages, Na-Banco asks the court to enjoin VISA from continuing to conspire to fix prices. This request is based on § 16 of the Clayton Act, 15 U.S.C. § 26, which states in relevant part: Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity.... Given the fact the court has already recognized NaBanco's standing under § 4 of the Clayton Act, an elaborate discussion of NaBanco’s standing under § 16 is unnecessary. Most “courts take a less constrained view of standing in suits involving injunctive relief than in those demanding treble damages ____” Jeffrey v. Southwestern Bell, supra, at 1132. Even indirect purchasers can maintain actions for injunctive relief. In re Beef Indus. Antitrust Litigation, 600 F.2d 1148, 1167 (5th Cir.1979), cert. denied, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980). This is because “the policy considerations underlying the pass-on rule are not implicated in claims for injunctive relief.” Id. Neither the risk of exposure to multiple liability or the difficulty in tracing the allocation of the overcharging among different levels of purchasers is related to the issue whether a party should be entitled to sue for injunctive relief. Nor does the position taken in Illinois Brick that effective enforcement of the antitrust laws requires that only direct purchasers be permitted to sue for treble damages have validity in the context of § 16. To achieve standing under § 16 then, all NaBanco must prove is that it is threatened with loss or injury cognizable in equity proximately resulting from the antitrust violation. Mid-West Paper Products at 591. Some courts have interpreted this proximate cause standard as one “no more rigorous than the general rule of standing.” Tugboat, Inc. v. Mobil Towing Co., 534 F.2d 1172, 1174 (5th Cir.1976). Even if this were not the case, and the line drawing for proximate causation was necessarily to be drawn somewhere between the general rule of standing and standing for treble damage actions, that need not concern us here. This is not a case involving facts making it necessary to “measure the outer range of standing to sue under § 16. Mid-West Paper Products at 593. NaBanco is not like “potential plaintiffs ... who may only be remotely affected by the ripples caused by the conspirators’ tampering with the supply and demand curve.” Id. Na-Banco contends “... that under all circumstances prevalent in the real economic world, money is passing from [its] hands into the pockets of [VISA member banks] as a result of [IRF]____” Mid-West Paper Products at 593. In order to participate in the system, NaBanco must pay IRF or it cannot access issuer banks to complete payment transactions. These facts seem sufficient in light of the policies behind § 16 to give NaBanco standing. PER SE VERSUS RULE OF REASON Section 1 of the Sherman Act reads in pertinent part as follows: § 1 Trusts, etc. in restraint of trade illegal; penalty Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. 15 U.S.C. § 1 In enacting Section 1, Congress condemned in broad language concerted conduct which restrains trade. With such guidance as might be found in the common law cases, it left to the courts the scope and meaning of this mandate. As has been the case with Section 16 of the Clayton Act, the very breadth of the condemnation unavoidably gives rise to ambiguity, leading courts long ago to conclude that Congress could not have literally meant to ban every contract which in any sense restrains trade. As Justice Brandéis pointed out in Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918): [T]he legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. Id. at 238, 38 S.Ct. at 244. In the years since the adoption of the Sherman Act in 1890, a number of competing views have been put forward as to its meaning. Stated simply, however, the governing law has been that the Sherman Act bans all concerted arrangements which are adopted for the purpose of reducing competition, or which, regardless of purpose, have a significant tendency to reduce competition. However, arrangements which are adopted for and tend to achieve other legitimate purposes do not fall within the condemnation of the Act merely because of some incidental and inconsequential restraining effect on competition. This general position has been reached, not directly, but through two subsidiary rules, the per se doctrine and the rule of reason, which taken together tend to condemn arrangements which have the purpose or effect of significantly restraining competition and to validate those which do not. The per se rule forecloses any analysis of the purpose of a restraint or the nature, extent and degree of its market effect, thus avoiding “the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable.” Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Thus the per se rule is generally limited to those categories of restraints for which no elaborate study of an industry is needed to establish that their nature and effect is “plainly” or “manifestly” anticompetitive. Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979); Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 646, 100 S.Ct. 1925, 1927, 64 L.Ed.2d 580 (1980); National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). To be manifestly anticompetitive, agreements or practices must have a “pernicious effect on competition and lack ... any redeeming virtue.” Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (quoted in Sylvania, 433 U.S. at 58, 97 S.Ct. at 2561). The classic definition of the rule of reason was enunciated in Standard Oil, supra, if asserted in its embryonic form in United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897). As construed in Standard Oil, Section 1 of the Sherman Act was an “all-embracing enumeration to make sure that no form of contract or combination” by which undue restraint was achieved “could escape condemnation.” 221 U.S. 1, 58-60, 31 S.Ct. 502, 515-516, 55 L.Ed. 619. The function of “reason” in the analysis is to discriminate between restraints which are “undue” and those which are not. In Professional Engineers the Supreme Court indicated that, contrary to its name and the suggestion of Mr. Justice White in United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897), the rule of reason “does not open the field of inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason.” Professional Engineers, 435 U.S. at 688, 98 S.Ct. at 1363. Instead, the basic inquiry is limited to whether the restraint in question “is one that promotes competition or one that suppresses competition.” Id. at 691, 98 S.Ct. at 1365. The opinion stressed that such an inquiry “is confined to a consideration of impact on competitive conditions” and that the function of the court is “to form a judgment about the competitive significance of the restraint.” Id. at 690, 692, 98 S.Ct. at 1364-1365. Because the inquiry is limited to determining the “market impact” on competition, defenses “based on the assumption that competition itself is unreasonable” or upon considerations unrelated to the effect of the restraint on competition are irrelevant. Id. at 696, 98 S.Ct. at 1368. NaBanco’s Per Se Argument At least twice before this court has considered and rejected NaBanco’s argument that the action of the VISA Board of Director’s in establishing and setting a fixed fee for interchange transactions is a “per se” violation of 15 U.S.C. § 1. Despite this court’s previous rulings on the matter, NaBaneo has pressed the argument that the relevant market in this case is the market consisting of the five major general purpose credit cards. NaBaneo argues further that the proper analytical framework within which to analyze whether VISA’S activities have any competitive impact is one which consists of three separate and distinct “markets”: one for card-issuing services; the second for merchant-servicing banks; the third for “IRF-like” interchange services. The card-issuing market consists of banks and other institutions which offer consumers various credit card services having a multiplicity of characteristics. Included among these characteristics are credit options and other money management capabilities, varying degrees of card recognition and/or acceptance rates, different convenience qualities, etc. The traits associated with the market for merchant banks are two-fold, including what NaBaneo calls a “factoring service” and an “account carrying” or “clearinghouse” service. By “factoring service”, NaBaneo means the initial contract by which a merchant bank or a “NaBanco-like” institution agrees to “purchase” merchant receivable items created by consumer bank credit card use; NaBaneo uses the second two terms to identify the mechanics of processing claims and paying accounts. Each of these separate and distinct markets are national in scope according to Na-Banco [Bull TR. 640-41 5/12/82], the competitors in the card-issuing market allegedly including not only VISA and Mastercard but also the traditional T & E cards (American Express, Carte Blanche, Diner’s Club), certain debit cards, and bank ATM cards. NaBanco’s description of the competitive actors in the merchant-servicing market includes those banks which act as merchant-servicing banks, as well as other entities such as NaBaneo which provide the same kinds of general services to merchants, with varying degrees of emphasis, facilities, and expertise. As mentioned earlier, NaBaneo has taken the position that merchant banks are selling receivables to issuer banks, and the issuer banks, through the control of the VISA Board of Directors, are directly fixing the discounted price of those sales by means of the Base II exchange fee imposed on those members which elect to use Base II. The Facial Unreasonableness Test Alternatively, NaBaneo argues that should the court determine the IRF is not per se illegal the test the court should apply in determining IRF’s legality under the antitrust laws is the “facial unreasonableness test.” This test, first enunciated in United States v. Realty Multi-List, Inc., 629 F.2d 1351 (5th Cir.1980) is actually a two-part test which, unlike either the per se or rule of reason tests, shifts the burden of proof from the plaintiff to the defendant; i.e., once the plaintiff has sustained its burden of proving that a defendant’s activities are a “significant restriction” affecting competition and that the defendant has significant market power, the burden then shifts to the defendant to show that the particular practice in question is “justified by the competitive needs” of the defendant and also both “reasonably necessary to the accomplishment of the [defendant’s] legitimate goals” as well as narrowly tailored to that end. Id. at 1370. VISA’S Answer to NaBanco’s Per Se Argument NaBanco buttresses its per se argument by pointing to a long line of cases, beginning with United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927), in which price fixing, as a concerted activity among competitors, is treated as a “naked” price constraint. (See also Trans-Missouri Freight Ass’n, supra, 17 S.Ct. 568.) This is true whether the price “fixed” is the ultimate price of a good or service or simply a component of the ultimate price. Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 645, 100 S.Ct. 1925, 1926, 64 L.Ed.2d 580 (1980). Further, a price-fixing agreement that establishes maximum prices is considered to be as illegal as one establishing minimum prices. Arizona v. Maricopa County Medical Society, 457 U.S. 332, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982); see also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951). This jurisprudence of per se price fixing validity exists because, for the most part, it has been difficult for courts to conceive of any example in which consequent enhancement of competition arises in the context of price fixing or, even if such enhancement occurred, that it could be so great as to render the restraint insignificant in accordance with the dictates of the rule of reason. Lawrence Sullivan Antitrust, W. Publishing Co., St. Paul, Minn. (1977) p. 196. Almost all the cases upon which NaBanco relies, however, display three unifying characteristics: (1) the practices examined were related to the market in such a way that if they were to have any effect at all it would be on price formation, (2) the practices lacked any significant degree of integration of functions among the competitors, and (3) the arrangements were not ones which helped to make or improve a market by facilitating trading, exchanging information, standardizing product or the like. Since price formation was affected, if there was any consequence at all, it is entirely fair and functionally accurate for courts to treat arrangements like these as naked restraints. VISA, however, has successfully opposed NaBanco’s arguments in prior proceedings in this case on the grounds that NaBanco’s per se price fixing theory is simply inapposite to the economically complex practices at issue in this case. While acknowledging high levels of vigorous competition at both the card-issuing and merchant-servicing ends of its bank credit card system, VISA challenges NaBanco’s “tri-market theory.” First it contends that “issuer” banks and “merchant” banks are not two separately competing sets of VISA membe