Full opinion text
OPINION AND ORDER BENSON, District Judge. Following a jury verdict in favor of the Plaintiff, a post-trial hearing was held Tuesday, December 22, 1992. The court heard argument on several motions, including: (1) Visa’s Motion for Judgment as a Matter of Law under Rule 50(b) of the Federal Rules of Civil Procedure; (2) Visa’s Motion for Entry of Judgment on its Clayton Act Counterclaim; and (3) Visa’s alternative Motion for New Trial or Conditional New Trial. Sears, as Plaintiff and Counterdefendant, was represented by William H. Pratt and Gary F. Bendinger. Visa, as Defendant and Counterclaimant, was represented by M. Laurence Popofsky, Stephen V. Bomse, Marie L. Fiala, Dale A. Kimball, and Clark Waddoups. Having considered the memoranda, submissions of the parties, and oral argument, the court enters this Opinion and Order. BACKGROUND The Plaintiff in this lawsuit is Mountain-West Financial, a wholly-owned subsidiary of Sears Consumer Financial Corporation and Dean Witter Financial Services Group, which are themselves wholly-owned subsidiaries of Sears, Roebuck and Co. The Defendant is Visa U.S.A., Inc. (“Visa”), a non-stock corporation owned by approximately 6000 banks and other financial institutions located throughout the United States. Visa’s history dates back to the late 1950s when Bank of America began issuing the BankAmericard to consumers through an organization of approximately 70 bank franchises. The BankAmericard was the predecessor to the current Visa charge card. A second charge card association, Interbank, was formed and competed directly with BankAmericard. Interbank is now known as MasterCard. Visa is a form of a joint venture governed by a board of directors which is comprised of bank executives selected from member banks. Visa divides the United States into twelve regions. Member banks in each region elect one director to the board. Large regions are represented by more than one director. In addition, one director is elected by the small banks to represent their interests. Furthermore, any member with more than ten percent of the total volume of outstanding Visa cards receives an automatic position on the Board. The Visa association itself does not issue charge cards. It provides services to its members, including general advertising and computer services. Visa cards are issued by the individual members. Each of the 6000 members is allowed to set its own terms, deciding what prices to charge and the number of cards to issue. When the Visa association was formed, its rules prevented members from also belonging to MasterCard. In 1974, a bank in Little Rock, Arkansas, sued for the right to issue both Visa cards and MasterCard cards. See Worthen Bank & Trust Co. v. National Bankamericard, Inc., 345 F.Supp. 1309 (E.D.Ark.1972), rev’d, 485 F.2d 119 (8th Cir. 1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974). In response, Visa sought advice from the United States Department of Justice to determine whether this prohibition could be considered an antitrust violation. The Justice Department responded by stating that, on the card-issuing level, such a “prohibition of dual affiliation appears unobjectionable.” (Def.’s Ex. 102, at 2). With respect to the enlistment of merchants willing to accept the Visa card, however, the Justice Department’s opinion was that the bar to dual membership could handicap efforts to create new bank credit card systems and might diminish competition. In other words, the Department of Justice found no problem with prohibiting a bank from issuing both Visa and MasterCard cards, but prohibiting dual affiliation by those banks responsible for signing merchants could pose an antitrust problem. As a result, the Department of Justice concluded that it could not promise that a civil action against Visa would not be initiated if Visa continued to refuse its members the right to issue MasterCard charge cards. In response, Visa withdrew its rule, settled the lawsuit, and allowed its members to also become members of the MasterCard association. Thereafter, most banks and other financial institutions in the United States became members of both Visa and MasterCard. Presently, most Visa members also issue MasterCard cards, a practice known as “duality.” Visa contended in this action that as a result of duality, competition between Visa and MasterCard diminished significantly. In 1982, Sears began investigating an entrance into the general purpose charge card market. Sears had discussions with Visa about the possibility of Sears’ issuing a nationwide Visa card. Sears organized a steering committee to recommend a strategy. The committee considered Sears’ becoming a member of Visa or MasterCard. The committee also considered developing a new general purpose charge card. In late 1984, Sears decided not to pursue issuing a Visa card at that time, but instead decided to launch its own proprietary card — the Discover Card. The Discover Card was introduced in Atlanta, Georgia, in late 1985, and was issued nationally in 1986. Visa perceived the Discover Card as a direct competitor and made numerous attempts to limit the Discover Card’s success. For example, Visa encouraged its member banks to deny the Discover Card access to Visa’s merchant card terminals. This strategy forced Sears to develop its own terminals and to offer them to merchants at competitive prices. Thereafter, Visa refused to allow its merchants to process Visa transactions on a Discover Card terminal. Despite Visa’s efforts, however, Discover continued to grow and prosper. In late 1988, Sears applied for membership in Visa through Greenwood Trust Co., a Delaware bank owned by Sears. Sears claims that its primary reason for applying for membership was in response to the competitive actions Visa had undertaken with respect to the Discover Card. In June, 1989, Visa’s Board of Directors held a meeting in Cannes, France. At the meeting, the Board considered and unanimously rejected Greenwood Trust’s application for membership. The Board also passed an amendment to its bylaws prohibiting Sears, or any other direct competitor, from becoming a Visa member. The following is an excerpt from the official minutes of the meeting of the Board, dated June 5-6, 1989: Greenwood Trust Company has made application for Principal membership in the corporation. Greenwood Trust Company is the issuer of Discover cards and has no intention of converting that program; rather, they intend to issue both Discover cards and Visa Cards. In order to preserve and enhance interbrand competition, and upon motion duly made, seconded and unanimously carried, it was RESOLVED, that Section 2.06 of the By-Laws be and are hereby amended by adding the following sentence at the end of that Section as follows: “Notwithstanding (a) above, if permitted by applicable law, the corporation shall not accept for membership any applicant which is issuing, directly or indirectly, Discover cards or American Express cards, or any other cards deemed competitive by the Board of Directors; an applicant shall be deemed to be issuing such cards if its parent, subsidiary or affiliate issues such cards.” (Pl.’s Ex. 715) In a letter advising Sears of the Board’s action, Visa General Counsel Bennett Katz stated: “[W]e believe that intersystem competition should be preserved and enhanced; membership by Greenwood Trust Co. would have the opposite effect.” (Pl.’s Ex. 715). Sears contested Visa’s rejection of its application. Sears’ officers met with Visa board members in an attempt to resolve the situation, but Visa refused to change its position. Sears threatened antitrust litigation, but took no legal action at that time. On May 25, 1990, Sears purchased the assets of a small, defunct Utah savings and loan association known as MountainWest Savings & Loan (“MountainWest Savings”). The purchase was made through the Resolution Trust Corporation (“RTC”), which had become the receiver of MountainWest Savings after its failure. Sears merged the assets of MountainWest Savings into those of Basin Loans, a Utah Industrial Loan Company, and renamed the new entity SCFC ILC, Inc., doing business in Sandy, Utah, as “MountainWest Financial.” One of the assets of MountainWest Savings that Sears acquired from the RTC was MountainWest Savings’ membership in the Visa association. MountainWest Savings had become a Visa member in 1982 and had issued approximately 5800 Visa charge cards to its account holders. Notwithstanding Visa Bylaw 2.06, Sears attempted to use MountainWest Financial’s Visa membership to launch a special low-interest, Sears-owned Visa card called “Prime Option.” Under the Prime Option program, Sears intended to issue millions of Visa cards nationwide. Sears initially requested a printing of 1.5 million Prime Option Visa cards. Upon learning, rather belatedly, of Sears’ involvement with MountainWest Financial, Visa refused to grant permission for the initial printing of the Prime Option Visa cards based on Bylaw 2.06’s prohibition of Sears’ membership in Visa. In response to Visa’s refusal to approve MountainWest Financial’s request, Sears filed a five-count Complaint against Visa in the Federal District Court for the District of Utah, on January 17, 1991. Counts I and II raise claims under Section 1 of the Sherman Act, 15 U.S.C. § 1; Counts III and IV raise claims under the Utah Antitrust Act, Utah Code Ann. §§ 76-10-911 to — 926; and Count V raises a claim under the Utah Unfair Practices Act, Utah Code Ann. §§ 13-5-1 to -18. Included in Sears’ prayer for relief was a request for a permanent injunction. Shortly after the complaint was filed, Sears moved for a preliminary injunction seeking to compel Visa to allow the launch of the Prime Option Visa card program. Sears’ motion was granted by the court. 763 F.Supp. 1094 (D.Utah 1991). The court found that MountainWest Savings’ Visa membership had never been terminated, and that Sears was “entitled to enjoy all of the rights and privileges of membership, including the right to launch the ‘Prime Option’ program.” Id. at 1098-99. The court further found that issuance of the preliminary injunction would not alter the status quo and that the other requirements necessary for a preliminary injunction had been met. Id. at 1100. Visa appealed the district court’s ruling to the United States Court of Appeals for the Tenth Circuit. On June 18, 1991, the Tenth Circuit reversed the holding of the district court, finding that the preliminary injunction would in fact alter the status quo and that Sears, under such circumstances, had not met the heavy burden required for a preliminary injunction. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1102 (10th Cir. 1991). The ease was remanded to the district court for further proceedings. On March 25,1991, Visa filed an Answer to the Complaint which included a Counterclaim against Sears. Count I of the Counterclaim raises a claim of Trademark Infringement under the Lanham Act, 15 U.S.C. § 1114; Count II alleges a violation of Section 7 of the Clayton Act, 15 U.S.C. § 18; Count III alleges fraud; Count IV raises a claim for unfair trade practices under California law; and Count V raises, in the alternative, a claim for breach of contract. The parties then resumed discovery in preparation for trial. Another twist was added to this litigation, however, when on December 19, 1991, President Bush signed into law a statute dealing with RTC-transferred institutions. The statute amended the Home Owners’ Loan Act, 12 U.S.C. § 1441a, by adding a new subsection, (q), as follows: Continuation of obligation to provide services No person obligated to provide services to an insured depository institution at the time the Resolution Trust Corporation is appointed conservator or receiver for the institution shall fail to provide those services to any person to whom the right to receive those services was transferred by the Resolution Trust Corporation after August 9, 1989, unless the refusal is based on the transferee’s failure to comply with any material term or condition of the original obligation. This subsection does not limit any authority of the Resolution Trust Corporation as conservator or receiver under section 11(e) of the Federal Deposit Insurance Act. Federal Deposit Insurance Corporation Improvement Act of 1991 § 471, Pub.L.No. 102-242, 105 Stat. 2385 (“Section 471”). Pursuant to this section, persons under contract to provide services to a federal deposit institution prior to its takeover by the RTC are required to continue to provide those services after transfer by the RTC to a new owner— so long as the new owner complies with all of the terms and conditions of the original contract. In response to the enactment of this statute, Sears amended its Complaint, alleging that Visa’s refusal to issue the credit cards sought by Sears constituted a violation of Section 471. Sears moved for summary judgment on that basis. On February 18, 1992, the court denied the motion, finding that Bylaw 2.06’s prohibition of affiliation with Sears was a material condition of the original agreement between Visa and MountainWest Savings. 784 F.Supp. 822, 834 (D.Utah 1992). Because MountainWest Savings was bound by the bylaw, the restriction was also effective as to MountainWest Financial, pursuant to the terms of Section 471. Id. On July 30, 1992, the court heard oral argument on various additional motions filed by the parties. These motions included: 1) Visa’s Motion for Summary Judgment on Sears’ Sherman Act Claim; 2) Sears’ Motion for Summary Judgment on Visa’s Clayton Act Counterclaim; 3) Sears’ Motion for Summary Judgment on Visa’s Non-antitrust Counterclaims; and 4) Sears’ Motion to Bifurcate the trials of the antitrust and non-antitrust claims. The court denied all notions for summary judgment, finding genuine issues of material fact which required a determination by the trier-of-fact at trial. The court, however, granted Sears’ motion to bifurcate the trial. 801 F.Supp. 517, 528-29 (D.Utah 1992). The initial trial would concern only the liability aspects of the antitrust claims. The damages portion of the antitrust claims, as well as all non-antitrust claims, would be tried at a later date, if necessary. Id. Trial began on October 13, 1992. Sears’ Sherman Act claim was presented to an eleven-person jury, while, at the same time, Visa’s Clayton Act claim was tried to the court. With respect to Sears’ Sherman Act claim, the dispute focused on whether the restraint of trade imposed by Bylaw 2.06 is “unreasonable.” Sears asserted that the restraint is unreasonable because it substantially harms competition in the relevant market. For purposes of this lawsuit, it was agreed by both parties that the relevant market is the general purpose charge card market in the United States. At the time of trial, the issuers of general purpose charge cards in the United States were the Visa and MasterCard associations, American Express, Citibank (Diners Club and Carte Blanche), and Sears (the Discover Card). Visa was estimated to possess 45.6% of the nationwide general purpose charge card market; MasterCard, 26.4%; American Express, 20.5%; Discover Card, 5.5%; and Diners Club, 2.0%. Competition among these five brands is known as interbrand or “intersystem” competition. Competition among association members, such as Visa members, is known as intrabrand or “intrasystem” competition. Sears argued at trial that Bylaw 2.06 hinders competition by excluding Sears’ planned Prime Option Visa card from being offered in the market. Sears asserted that the Prime Option Visa card would be a low-cost, highly competitive addition to the Visa system. Bylaw 2.06, it was argued, harms consumers because it prevents them from gaining access to the card, thereby hindering intrasystem competition within the Visa system. At the time of trial, this exclusion only applied to two entities — Sears and American Express. In the estimation of Visa’s Board of Directors, no other entity was issuing a “competitive” card in the relevant market. Sears also asserted that Bylaw 2.06 harms competition by discouraging the creation and development of other proprietary cards. Bylaw 2.06, it was argued, punishes those who may seek to offer a successful, competitive proprietary card, such as the Discover Card. Because of the bylaw, non-Visa members who develop a successful proprietary card would be prohibited from joining the Visa system and current Visa members would be expelled from the system if they developed such a card. In response to Sears’ arguments, Visa asserted that Bylaw 2.06 is not unreasonable. Visa maintained that the bylaw is beneficial, rather than harmful, to competition. It asserted that the exclusion of Sears from the Visa association preserves intersystem competition because Discover Card is one of the few successful intersystem competitors with Visa in the relevant market. Allowing Sears to join the Visa system would arguably weaken intersystem competition between Visa and Discover. Thus, Visa submitted, Bylaw 2.06 actually enhances competition in the relevant market. Furthermore, Visa argued that any harmful effects of Sears’ exclusion are insubstantial. Because Visa does not set restrictions on the price or output of Visa cards issued by its member banks, it was argued that the present intrasystem competition is vigorous and the exclusion of Sears cannot possibly have a substantial, negative impact on competition in the relevant market. Following a three and one-half week trial, and two days of deliberation, the jury returned a verdict pursuant to special interrogatories, as follows: QUESTION NO. 1: Has Sears proved, by a preponderance of the evidence, that Visa’s Bylaw 2.06 has a substantially harmful effect on competition in the relevant market? Yes JX_. No _. QUESTION NO. 2: Has Sears proved, by a preponderance of the evidence, that the harmful effect substantially outweighs any beneficial effect on competition in the relevant market? Yes _X_. No. _. QUESTION NO. 3: Has Sears proved, by a preponderance of the evidence, that it was injured by Visa’s Bylaw 2.06? Yes _X_. No Following trial, the parties filed the post-trial motions presently pending before the court. After hearing oral argument, the court took the motions under advisement. The court now rules on Visa’s Rule 50(b) Motion for Judgment as a Matter of Law on Sears’ Sherman Act claim, Visa’s Rule 50(b) Motion for Judgment as a Matter of Law on its Clayton Act Counterclaim, and alternatively, Visa’s Rule 59 Motion for a New Trial. DISCUSSION I. VISA’S RULE 50(b) MOTION— THE SHERMAN ACT Visa argues that Sears’ Sherman Act claim must fail as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. Visa raises two general arguments. First, Visa argues that Sears’ claim is legally insufficient and should never have gone to the jury. This argument is based on general economic principles, including notions of private property and the preservation of efficiency-enhancing joint ventures. Next, Visa argues that the facts of this case are so lacking that no reasonable jury could have ruled in Sears’ favor. For organizational purposes, the court will refer to the former as Visa’s “legal argument” and to the latter as Visa’s “factual argument,” recognizing, of course, the essentially legal nature of each argument under Rule 50(b), as well as the considerable overlap of the factors that pertain to both arguments. A. Visa’s “Legal Argument” Visa’s legal argument has been presented several times to the court. The argument has evolved and changed somewhat over time, having been articulated slightly differently each time it has been presented. In each instance, however, the central theme of Visa’s legal argument has remained the same: that under the circumstances of this ease, the restraint imposed by Bylaw 2.06 cannot violate the antitrust laws. Visa contends that when a joint venture such as Visa does nothing more than refuse to share its property with a successful competitor such as Sears, there can be no violation of Section 1 of the Sherman Act. 1. Legal Structure of the Sherman Act Before addressing the details of Visa’s legal argument, it is helpful to examine Section 1 of the Sherman Act and the legal requirements necessary to establish a violation of that section. Section 1 provides: 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.A. § 1 (Supp.1992). The plain language of the section appears to prohibit all restraints of trade. However, courts determined early on that the section was not intended to be applied so broadly, finding that “restraint is the very essence of every contract,” and “read literally, § 1 would outlaw the entire body of private contract law.” National Soc’y of Professional Eng’rs v. United States, 435 U.S. 679, 687-88, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637 (1978); see also Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918). As a result, it has been clearly established that a restraint of trade does not violate Section 1 unless it is found to be “unreasonable.” A restraint of trade is unreasonable if it substantially harms competition in the relevant market to the extent that the harmful effects substantially outweigh any beneficial effects. This process of determining whether a restraint is unreasonable is known as the “Rule of Reason.” See Standard Oil Co. v. United States, 221 U.S. 1, 67, 31 S.Ct. 502, 518, 55 L.Ed. 619 (1911); Board of Trade, 246 U.S. at 238-39, 38 S.Ct. at 243-44; Professional Engineers, 435 U.S. at 687-§8, 98 S.Ct. at 1363; Reazin v. Blue Cross & Blue Shield, 899 F.2d 951, 960 (10th Cir.), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990). a. The Rule of Reason “[T]he inquiry mandated by the Rule of Reason is whether the challenged agreement is one that promotes competition or one that suppresses competition.” Professional Engineers, 435 U.S. at 691, 98 S.Ct. at 1365. This determination is generally made by the trier-of-fact. “[T]he factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Id. at 691 n. 17, 98 S.Ct. at 1365 n. 17. The fact-finder must examine “a variety of actual market factors” in making this determination. Smith Mach. Co. v. Hesston Corp., 878 F.2d 1290, 1298 (10th Cir.1989), cert. denied, 493 U.S. 1073, 110 S.Ct. 1119, 107 L.Ed.2d 1026 (1990). This includes an analysis of the restraint imposed — the nature and history of the restraint, and whether the restraint affects price, output, or product quality. The fact-finder may also examine the relevant market — the structure of the market, the parties’ positions in the market, and the nature of the market before and after the restraint was imposed. Board of Trade, 246 U.S. at 238-39, 38 S.Ct. at 243-44. Furthermore, a Rule of Reason analysis may include an examination of the party’s purpose in imposing the restraint. Visa correctly observes that not all Section 1 cases must be submitted to a jury. A complete Rule of Reason inquiry often requires a protracted and complicated examination of the relevant facts. As a result, courts have developed presumptions, or “screens,” as Visa calls them in its briefs, to filter out those cases which do not require full Rule of Reason analysis by the fact-finder at trial, but rather, may be decided as a matter of law. b. Per Se Illegality The first presumption developed by the courts is the rule of per se illegality. “Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination. of the challenged conduct.” NCAA v. Board of Regents of the Univ. of Okla., 468 U.S. 85, 103-04, 104 S.Ct. 2948, 2961, 82 L.Ed.2d 70 (1984). Certain activities are so facially pernicious that they are declared presumptively unreasonable by the court. Agreements and practices which are “plainly anticompetitive,” Professional Engineers, 435 U.S. at 692, 98 S.Ct. at 1365, and which are lacking in “any redeeming virtue,” Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), are presumed to be illegal without conducting a detailed Rule of Reason analysis. Price fixing and bid rigging are examples of these types of activities. The United States Supreme Court has explained the benefits of the per se analysis approach: This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids 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 — an inquiry so often wholly fruitless when undertak•en. Northern Pacific, 356 U.S. at 5, 78 S.Ct. at 518. Courts, however, are hesitant to find alleged restraints of trade illegal per se. The anticompetitive effect must be relatively certain. See United States v. Topeo Assocs., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972) (“It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.”). Even when the per se presumption appears to be proper, the presumption will not be applied if the restraint could possibly have legitimate, beneficial effects or if the restraint is such that it is necessary for the product to exist at all. Regardless whether a restraint is subjected to a full Rule of Reason analysis or a presumption, the “essential inquiry” is the same — whether the restraint substantially harms competition in the relevant market. NCAA, 468 U.S. at 104, 104 S.Ct. at 2961. “[T]here is often no bright line separating per se from Rule of Reason analysis.” Id. at 104 n. 26, 104 S.Ct. at 2962 n. 26. e. Legal “Screens” for Nonviolations At the opposite end of the spectrum from per se illegality, courts will sometimes find a restraint “reasonable,” or perhaps more accurately, “not unreasonable” as a matter of law. This occurs when no reasonable fact-finder could find the restraint to be unreasonable, and therefore submitting it to the jury for a complete Rule of Reason analysis would not be of value. Based on current precedent, there appear to be two general types of cases in this category. The first situation arises when it can be shown that the defendant does not possess market power. “Market power is the ability to raise prices above those that would be charged in a competitive market.” NCAA, 468 U.S. at 109 n. 38, 104 S.Ct. at 2964 n. 38. The plaintiff bears the burden of proving that the defendant possessed and exercised market power. “To demonstrate ‘market power,’ a plaintiff may show evidence of either ‘power to control prices’ or ‘the power to exclude competition.’” Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216, 1225-26 n. 3 (10th Cir.1986), cert. denied, 486 U.S. 1005, 108 S.Ct. 1728, 100 L.Ed.2d 192 (1988) (emphasis in original). A restraint is not unreasonable under the antitrust laws unless it substantially harms competition. When a defendant lacks market power, it lacks the ability to substantially harm competition. Consequently, when the evidence clearly demonstrates an absence of market power, no reasonable jury could find the restraint to be unreasonable. Under such circumstances, a court may declare the restraint not unreasonable as a matter of law and dismiss the claim without submitting it to a jury. Capital Imaging Assocs. v. Mohawk Valley Medical Assocs., 791 F.Supp. 956, 966-67 (N.D.N.Y.1992); see Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 482 (3d Cir.), cert. denied, — U.S. —, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992); Rebel Oil Co. v. Atlantic Richfield Co., 808 F.Supp. 1464, 1466 (D.Nev. 1992). The second type of circumstance in which a restraint was found to be “not unreasonable” as a matter of law was recognized in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 597, 106 S.Ct. 1348, 1361, 89 L.Ed.2d 538 (1986). There, the Court found that when a plaintiffs theory of violation does not “make economic sense,” dismissal is appropriate. See also Eastman Kodak Co. v. Image Technical Servs., — U.S. —, —, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992). The central focus of Visa’s legal argument is that the court should apply a shorthand presumption or screen to dismiss Sears’ claim without submitting it to a jury. Visa argues that such a dismissal is warranted under the market power and economic sense screens. In addition, Visa proposes that the court adopt a new screen, based upon economic principles, to declare Bylaw 2.06 not unreasonable as a matter of law. The court will now evaluate Visa’s position under these three screens. 2. The Market Power Screen Visa claims the court should find no Sherman Act violation because, as a matter of law, Bylaw 2.06 was not an exercise of market power. Visa submits that because the bylaw does not restrict competition or control the price or output of Visa cards within the Visa system, it cannot be an exercise of market power. The court finds, however, that the market power screen is not applicable in this case. The market power screen is based on the existence rather than the exercise of market power. If the relevant facts clearly demonstrate an absence of market power, the court may dismiss the case. If the court determines, however, that there is sufficient evidence from which a reasonable fact-finder could find the existence of market power, the case must be submitted to the jury. The jury then determines factually whether the defendant possessed market power, and, if so, whether the defendant exercised market power to unreasonably restrain trade. At trial, Sears presented sufficient evidence of Visa’s market power to allow this case to proceed to the jury. The evidence showed that Visa members control 45.6% of the relevant market through the Visa system. This fact alone suggests the existence of market power. The evidence also showed that Visa members, through their membership in the MasterCard association, control an additional 24.6% of the market—for a total of 72%. Sears’ expert witness, Professor James Kearl, testified that this position in the relevant market gives Visa members the ability to collectively exercise market power. Accordingly, the court finds there ■was sufficient evidence of Visa’s market power to support a submission to the jury regarding the possession and exercise of that power. S. The Economic Sense Screen Visa next argues that Sears’ theory oí a Sherman Act violation makes no economic sense. This argument is based on the United States Supreme Court’s rulings in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and Eastman Kodak Co. v. Image Technical Services, Inc., — U.S. -, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), in which the Court recognized that a case may be dismissed when the plaintiffs theory regarding the defendant’s alleged restraint of trade makes no economic sense. Under this theory, Visa claims, the court should apply a similar “screen” to find that Bylaw 2.06 is not unreasonable as a matter of law. Visa bases this argument on the inherent economic benefits of a joint venture, and the claim that a joint venture’s exercise of its property rights cannot substantially harm competition. Specifically, Visa emphasizes that Bylaw 2.06 does not restrict competition as to price or output. Competition among the 6000 members is said to be vigorous, and therefore the exclusion of one additional competitor cannot harm competition. Visa argues that any challenge to such conduct is economically unsound. Visa’s reliance on the concept of no economic sense used in Matsushita and recognized in Eastman Kodak is misplaced in the present case. In both Matsushita and Eastman Kodak, the focus of the economic sense inquiry centered on whether the alleged restraint of trade was economically detrimental to the defendant. If the alleged restraint were significantly detrimental, the plaintiffs argument could be said to make no economic sense and dismissal could be appropriate. For example, in Matsushita, American television manufacturers alleged that Japanese manufacturers, over a twenty-year period, had illegally conspired to drive American firms from the market. 475 U.S. at 577, 106 S.Ct. at 1351. This conspiracy allegedly focused on a “scheme to raise, fix and maintain artificially high prices for television receivers sold by [the defendants] in Japan and, at the same time, to fix and maintain low prices for television receivers exported to and sold in the United States.” Id. at 578, 106 S.Ct. at 1351 (emphasis in original). The Court found that a conspiracy to depress prices in the American market to drive out American competitors was implausible because it required the conspirators to incur substantial losses to recover uncertain gains. Id. at 590, 106 S.Ct. at 1357. As such, the Court found the allegation made no economic sense because “as presumably rational businesses, [defendants] had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for [defendants] with no corresponding gains.” Id. at 595, 106 S.Ct. at 1360. The Court concluded that if the defendants had “no rational economic motive to conspire, and if their conduct [was] consistent with other, equally plausible explanations, the conduct [would] not give rise to an inference of conspiracy,” and summary judgment was appropriate. Id. at 596-97, 106 S.Ct. at 1361. Using the Matsushita case as a foundation, the concept of “no economic sense” was also used as a defense in Eastman Kodak. There, defendant Eastman Kodak, a manufacturer of photocopiers and related equipment, instituted a policy of selling parts only to those who had purchased Kodak equipment, and those who used Kodak service or did their own repairs. — U.S. at —, 112 S.Ct. at 2076-77. After several independent service companies were forced out of business, a group brought suit alleging that Kodak “had unlawfully tied the sale of service for Kodak machines to the sale of parts.” Id., — U.S. at-, 112 S.Ct. at 2078. In response, Kodak argued that it made no economic sense for Kodak to raise “its parts or service prices above competitive levels” because potential customers would simply stop buying Kodak equipment. Id., — U.S. at —, 112 S.Ct. at 2084. On this basis, Kodak argued that the Court, as a matter of law, should accept a “basic economic reality” that competition in the equipment market would prevent market power in the parts and service areas. Id. The Court rejected this argument, finding that it was possible for Kodak to lose equipment sales and still not suffer economic detriment. Id., — U.S. at-, 112 S.Ct. at 2084-88. “The sales of even a monopolist are reduced when it sells goods at a monopoly price, but the higher price more than compensates for the loss in sales.” Id., — U.S. at-, 112 S.Ct. at 2084. As a result, the Court concluded that the plaintiffs argument made sufficient “economic sense” to avoid dismissal. Id., — U.S. at-, 112 S.Ct. at 2088. In the instant case, Visa argues, in effect, that Sears’ antitrust allegation against Visa makes no economic sense. However, unlike the defendants in Matsushita and Eastman Kodak, Visa does not base this argument on any claim that Bylaw 2.06, as interpreted by Sears, is economically detrimental to Visa members. Rather, Visa claims that Sears’ argument should be dismissed as a matter of law because joint ventures have inherent economic benefits. The court finds that Visa’s argument is not consistent with the economic sense screen described by the Supreme Court. Even if Visa’s argument of no economic sense were based on claims of economic detriment to Visa, there was sufficient evidence presented by Sears to rebut the claim and warrant a submission of the issue to the jury. Sears alleged that Bylaw 2.06 was designed to economically benefit Visa members by excluding Prime Option Visa, a potentially large-scale, low-cost competitor in the general purpose charge card market. This exclusion, Sears argued, restricts competition within the Visa system, thereby allowing current members to keep prices artificially high. In evaluating Sears’ theory of anticompetitive effects, the court does not find Sears’ claims to be economically implausible or senseless. Despite the fact that competition within the Visa system is said to be vigorous, there is evidence to support a reasonable jury finding that Bylaw 2.06’s exclusion of Sears from the Visa system harms competition. 4 Visa’s Proposed Screen Regardless of, and in addition to, the applicability of the two previously-mentioned screens of market power and economic sense, Visa argues the court should recognize a new “screen” applicable to the facts here. Visa’s argument rests upon two general economic principles. First, Visa stresses the importance of protecting private property in a capitalistic market. It asserts that a party should not be required to deal with its competitor or share its property absent unusual circumstances. Imposing a duty to deal, it is argued, harms consumers by destroying incentives and innovation. Second, Visa argues that efficiency-enhancing joint ventures such as the Visa association should be entitled to special treatment under Section 1 of the Sherman Act. Such joint ventures, Visa argues, are beneficial to competition and consumers. The threat of antitrust litigation, however, discourages the creation of such ventures. Accordingly, Visa contends, they should be entitled to special treatment. These two economic principles, Visa argues, are so compelling that they warrant special protection from antitrust scrutiny. Specifically, Visa asserts that when a joint venture refuses to deal with a competitor, it should not be subject to Section l’s Rule of Reason examination unless the excluded competitor meets a heightened standard— showing that it is unable to compete without the withheld property. When a competitor is able to compete successfully on its own, it is argued, there can be no antitrust violation from refusing to deal with that competitor. Visa would require that the excluded competitor show that it is unable to compete without access to the joint venture’s property. In other words, the property must be an “essential facility” necessary for the success of the excluded competitor. A competitor challenging its exclusion from a joint venture, Visa argues, is not entitled to a Rule of Reason trial — absent a showing of essential facilities. When such a showing is not made, the court should dismiss the challenge without submitting it to a jury. Based on this analysis, Visa seeks “a ‘screen’ based on economic learning which justifies a legal rule limiting the circumstances in which a duty to deal will be imposed by the antitrust laws[.]” Visa’s Nov. 24, 1992, Memorandum in Support of Motion for Judgment under Rule 50(b), at 12. Visa would have the court employ such a screen to declare Bylaw 2.06 “not unreasonable” as a matter of law. The court will now analyze Visa’s economic principles to determine whether, under the antitrust laws, they are sufficient to impose a heightened burden on the plaintiff. The court will then examine Visa’s proposed essential facilities standard, to determine when, if ever, such a showing is required as a matter of law. a. Private Property: The Right to Refuse to Deal Visa’s first economic principle is based on the premise that the right to deal, or to refuse to deal, with whomever one pleases is subject to special protection from antitrust scrutiny. Visa argues that Bylaw 2.06 is nothing more than a refusal to share its property. The bylaw is merely an agreement among Visa members to exercise their right to refuse to deal with a non-member competitor. This type of agreement, it is argued, does not raise traditional Section 1 concerns and should not be subject to complete Section 1 scrutiny. Visa submits that there is an important distinction between the types of agreements made among the members of a joint venture. On the one hand, there are those agreements which restrict competition by and among members of the joint venture. Such agreements place limits on competition within the system and may result in serious restraints of trade. These types of agreements include price fixing, output limitations, and geographic restrictions. On the other hand, there are those agreements which preserve competition between and among members of the joint venture. For example, when members of a joint venture act as a single unit to refuse to deal with a non-member eompetitor, Visa argues, intrasystem competition is not adversely affected. Visa asserts that the difference between these types of agreements is crucial. A limit on intrasystem competition is likely to result in a serious restraint of trade, whereas a refusal to deal will not have the same effect. Visa argues that the former is properly suspect under the antitrust laws, while the latter does not raise the same concerns. Visa stresses that because of the fundamental difference between the two types of agreements, it would be inappropriate to subject them to the same antitrust standard. An agreement to limit competition among venture members, Visa argues, is properly subject to full Rule of Reason scrutiny, while a refusal to deal with a non-member competitor is not. Such a refusal, it is argued, should not be limited by Section 1. Visa contends that the right to refuse to deal with a competitor is important because it protects private property. Protection of that right from strict antitrust scrutiny is essential to the preservation of incentives in the market. Forcing entities to share their property with competitors, it is argued, is harmful to competition in the long run. If firms know they may be forced to share new products and innovations with their competitors, they will be less likely to undertake the effort and the risk required for the development of new products. Rather, the incentive would be to wait for competitors to create new products, and then enter the market by usurping the competitors’ innovations. Compulsory sharing of private property discourages innovation and the creation of new products. Because imposing a duty to deal would “negate incentives in our capitalist society,” Visa argues that its right to deal with whomever it chooses should be upheld and respected by the antitrust laws. Visa’s Nov. 24, 1992, Mem., at 14. Visa concedes that the right is not absolute. In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601, 105 S.Ct. 2847, 2856, 86 L.Ed.2d 467 (1985), the United States Supreme Court stated: “The high value that we have placed on the right to refuse to deal with other firms does not mean that the right is unqualified.” The Court recognized that although there is a general right to deal, or to refuse to deal, with whomever one pleases, that right is restricted by the antitrust laws. Visa’s position, however, is that the right is restricted only in limited circumstances— when the defendant possesses monopoly power, or when the property is an essential facility for competition in the market. Absent these limited and unusual circumstances, Visa argues, the right to refuse to deal should remain unqualified. Neither of these circumstances is applicable to the present case: Visa does not possess monopoly power, and membership in Visa is not an essential facility for Sears’ success in the relevant market. Therefore, Visa argues, a duty to deal may not be imposed and Sears’ claim should be dismissed. Visa stresses that Aspen is based on Section 2, rather than Section 1, of the Sherman Act. Section 2 requires that a defendant possess and exercise monopoly power in the relevant market. See Bright v. Moss Ambulance Serv., 824 F.2d 819, 823 (10th Cir.1987) (“The elements of monopolization under Section 2 are ‘the possession of monopoly power in the relevant market’ and ‘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.’ ” (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966))). Monopoly power is not a requirement under Section 1. In Aspen, a ski resort sued a competitor for violating the monopolization prohibitions of Section 2 of the Sherman Act. 472 U.S. at 595,105 S.Ct. at 2853. The Court upheld the jury’s verdict, finding that the antitrust laws imposed on the defendant a duty to deal with its competitor. Id. at 611, 105 S.Ct. at 2861. Visa argues that the duty to deal was imposed only because the defendant possessed monopoly power under Section 2. In a Section 1 case, Visa asserts, a duty to deal will not be imposed absent unusual circumstances equivalent to monopoly power. Again, Visa argues that imposing a duty to deal is harmful to consumers and competition. It stresses that imposing such a duty will negate incentives for investment, innovation, and product-creation. To protect such incentives, Visa argues, “[a] duty to share or deal must be imposed only under very limited conditions — conditions captured in the notions of essentiality or market power of such a degree that it is tantamount to monopoly or deprivation of an input necessary to effective competition.” Visa’s Nov. 24, 1992, Mem., at 21. Visa’s argument raises legitimate economic policy issues. Visa’s legal argument fails, however, because it is not supported by the law — it is contradicted by the language of Section 1 of the Sherman Act and all case law interpreting the Act. The law does not recognize an antitrust exemption for a joint venture’s refusal to deal. Such refusals are not insulated from the Rule of Reason examination. All combined activities, whether contracts, conspiracies or combinations, which restrain trade — even simple refusals to deal — are subject to the reasonableness inquiry. Economic concerns cannot change the legal structure of the antitrust laws. Nothing in the Sherman Act itself or in the case law suggests that a refusal to deal by a joint venture such as Visa is limited to Section 2 restrictions, or that such a refusal is entitled to a special protective “screen” from Section 1 scrutiny. The Supreme Court addressed this issue in the Aspen case. The Court did not limit the qualification of the right to deal to Section 2 eases. Rather, the Court noted that the right is also qualified by Section 1, stating that “[ujnder § 1 of the Sherman Act, a business ‘generally has a right to deal, or refuse to deal, with whomever it likes, so long as it does so independently.’ ” 472 U.S. at 601 n. 27, 105 S.Ct. at 2856 n. 27 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984) (emphasis added)). A firm’s right to refuse to deal is unqualified only if it does so independently; a firm which acts in concert with other firms is subject to full Section 1 antitrust scrutiny. Visa’s argument concerning the economic benefits of a joint venture’s refusal to deal, as opposed to other joint venture restraints, is not entirely irrelevant to the Section 1 inquiry. In some circumstances, the distinction between the two types of restraints may be important. For example, the distinction may be relevant in the court’s determination whether to apply the per se illegality presumption. An agreement to limit competition by or among members of the joint venture is more likely to harm competition than is a simple refusal to deal with a competitor. Therefore, intrasystem restraints such as price-fixing or output limitations, are usually struck down as illegal per se, whereas simple refusals to deal are more likely to be governed by a complete standard Rule of Reason analysis. See Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 619 (9th Cir. 1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980); Fount-Wip, Inc. v. Reddi-Wip, Inc., 568 F.2d 1296, 1300 (9th Cir.1978). Visa’s argument is also relevant to the fact-finder. Under the Rule of Reason, the jury may consider all evidence of harmful and beneficial effects. Economic arguments concerning the preservation of private property incentives may be, and in this case certainly were, presented to the jury as evidence of beneficial effects. Thus, both the court and the jury may consider the economic implications of a refusal to deal. This argument, however, does not alter the legal standard. All restraints imposed by joint action, whether simple refusals to deal or restrictions on competition among the members, are governed by Section l’s Rule of Reason analysis. What Visa gains from its legal argument is an escape from a finding that Bylaw 2.06 is per se illegal, not the opposite result of some form of per se non-illegality. This notion is illustrated in several cases. For example, in Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), the Supreme Court struck down a joint venture’s refusal to deal as a violation of Section 1 of the Sherman Act based on a Rule of Reason analysis. There, the Court was called upon to consider whether certain bylaws of the Associated Press, a joint venture, constituted an unreasonable restraint of trade. The bylaws “granted AP members powers to impose restrictive conditions upon admission to membership of non-member competitors.” 326 U.S. at 6, 65 S.Ct. at 1418. Thus, similar to the present case, the bylaws allowed members to refuse membership to existing competitors. The restriction constituted a refusal to share property with a competitor. The Court determined that the restraint was unreasonable under Section' 1. The Court rejected the defendant’s plea for special treatment based on notions of private property. It stated: It has been argued that the restrictive ByLaws should be treated as beyond the prohibitions of the Sherman Act, since the owner of the property can choose his assodates and can, as to that which he has produced by his own enterprise and sagacity, efforts or ingenuity, decide for himself whether and to whom to sell or not to sell. While it is true in a very general sense that one can dispose of his property as he pleases, he cannot “go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.”; ... The Sherman Act was specifically intended to prohibit independent businesses from becoming “associates” in a common plan which is bound to reduce their competitor’s opportunity to buy or sell the things in which the groups compete. Victory of a member of such a combination over its business rivals achieved by such collective means cannot consistently with the Sherman Act or with practical, everyday knowledge be attributed to individual “enterprise and sagacity”; such hampering of business rivals can only be attributed to that which really makes it possible — the collective power of an unlawful combination. That the object of sale is the creation or product of a man’s ingenuity does not alter this principle. Associated Press, 326 U.S. at 14-15, 65 S.Ct. at 1422 (emphasis in original) (citation omitted). The Court did not apply a special “screen” to the refusal to deal, nor did it require a heightened showing of monopoly power or the existence of “essential facilities.” Rather, the Court used the Rule of Reason to find the restraint unreasonable. This case makes it clear that notions of private property and protection of incentives to create are not entitled to special protection from the antitrust laws. Although such notions are important policy considerations and may be important to the factual Rule of Reason inquiry, they may not be used to avoid antitrust scrutiny. Reazin v. Blue Cross & Blue Shield, 899 F.2d 951 (10th Cir.), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990), is also instructive on this issue. There, an insurance company, Blue Cross, conspired with two hospitals to injure a third hospital which was affiliated with a competitor. Blue Cross terminated its contract with the third hospital and structured its contract with the other two so as to increase the costs of the third hospital. Id. at 954-55. The agreement was challenged as an unreasonable restraint of trade under Section 1. The restraint was submitted to a jury for determination under the Rule of Reason. The jury found a violation of Section 1. Id. at 955. On appeal, the Tenth Circuit upheld the jury’s findings. Id. at 972. The defendant’s conduct in Reazin is comparable, although not completely analogous, to Visa’s conduct in the present case. Like Visa, Blue Cross’s conspiracy constituted an exercise of the right to deal and to refuse to deal. No special standards were applied to the restraint despite the fact that the plaintiff hospital was a viable, thriving competitor. The restraint was struck down because it was found to substantially harm competition. Although Reazin involved a vertical restraint of trade, the case supports the proposition that a restraint imposed by a simple refusal to deal is not subject to special treatment, but rather is to be judged by the same standard as all other Section 1 restraints. Visa’s legal argument must fail for another reason as well — it is not applicable to the facts of this case. Even if the court were to grant special legal deference to a simple refusal to deal, Bylaw 2.06 would not qualify for such special treatment. The court finds, contrary to Visa’s position, that Bylaw 2.06 is more than a simple refusal to deal. Rather, as Sears argues, Bylaw 2.06 may also be a restriction on intersystem competition in the general purpose charge card market because it prohibits current Visa members from developing their own proprietary cards. It is undisputed that Visa intended the restrictions of Bylaw 2.06 to apply to current Visa members as well as non-members. Because of the bylaw, current Visa members who develop successful, competitive proprietary cards are subject to expulsion from the Visa system. Sears argues that this imposes a substantial disincentive for Visa members to develop competing proprietary cards. As such, Visa is not simply refusing to share its property with competitors, it is limiting the way in which its own members may compete within the general purpose charge card market. Such a restriction might be likened to a scheme to fix prices, or to limit output to geographical areas. It is an agreement by multiple entities to limit the way in which they compete with each other. It is true that Visa members compete as to price and output of Visa cards within the system. However, Bylaw 2.06 arguably prohibits, or at least substantially hinders, potential intersystem competition by Visa members who may wish to issue their own proprietary cards. The disincentive aspect of Bylaw 2.06 is somewhat analogous to the restraint discussed in North American Soccer League v. National Football League, 670 F.2d 1249 (2d Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 499, 74 L.Ed.2d 639 (1982). There, the National Football League, a joint venture comprised of professional football teams, enacted a rule forbidding its members from obtaining or retaining ownership of any other professional sports team in any other league. Id. at 1250. The rule, while allowing for intrasystem competition within the league, restricted the ability of league members to engage in intersystem competition in the relevant market. The restraint was struck down as a violation of Section 1, pursuant to the Rule of Reason. Id. at 1261. In conclusion, Visa’s arguments concerning private property and the right of refusal to deal must fail for two reasons: A joint venture’s private property rights are not subject to special legal treatment under the antitrust laws, and Bylaw 2.06 is not a simple refusal to deal. Thus, although it could be argued that Bylaw 2.06 is subject to the per se illegality presumption, the court has found the presumption is not proper in this case. Visa has presented substantial evidence and argument as to the beneficial aspects of Bylaw 2.06. Accordingly, the reasonableness of the bylaw should be determined by the jury under the Rule of Reason. Sears has apparently conceded this point. It has not argued for a per se illegality declaration by the court. Rather, it agrees with the court's decision to submit the claim to the juty. b. Joint Ventures Under the Antitrust Laws The next principle of Visa’s legal argument goes to the manner in which joint ventures are treated under the antitrust laws. Visa argues that because of the beneficial aspects of joint ventures, they should be given deferential treatment. Visa first emphasizes the economic benefits of a joint venture. A “true” joint venture, it is argued, is one in which single firms join together to create products. The combining of efforts gives the joint venture sufficient size and power to accomplish tasks which could not be accomplished by a single firm individually. Thus, it is argued, joint ventures are beneficial to consumers. Visa also stresses that joint ventures are economically preferable to outright mergers. Members of a joint venture retain their individual identities, and are free to compete between and among themselves. A merger, on the other hand, results in a large, single entity which has no real competition within itself. Thus, a joint venture retains many aspects of competition, whereas an outright merger eliminates all intrasystem competition. Based on this analysis, Visa submits that “the antitrust laws give joint ventures more, not less, leeway than independent entities in their conduct.” Visa’s Oct 26, 1992, Memorandum in Support of Motion for Judgment under Rule 50, at 11 (emphasis in original) (citing Broadcast Music, Inc. v. Columbia Broadcasting Sys., 441 U.S. 1, 23, 99 S.Ct. 1551, 1564, 60 L.Ed.2d 1 (1979)). Visa asserts that holding joint ventures subject to strong antitrust scrutiny is harmful to consumers. Applying a strict standard to joint ventures, it is argued, discourages the incentive to create joint ventures. This disincentive leaves potentially beneficial projects to be undertaken (if undertaken at all) by smaller, less-efficient single firms, or results in outright mergers which eliminate all competition between the merging firms. See Visa’s Nov. 24, 1992, Mem., at 19 n. 16. Visa asserts that the Visa joint venture is a true, product-creating joint venture in which “its members have come together to create a new product, through risk and innovation, that none of its members could have created individually.” Id. at 11. Visa’s formation as a joint venture, it is argued, has therefore been beneficial to consumers. As such, the activities of the joint venture should receive greater leeway under the antitrust laws. Visa’s argument on this point raises legitimate policy considerations. It sounds logical and well-reasoned. It suffers, however, from one flaw — it is entirely inconsistent with the law. “The theory that a combination of actors can gain exemption from § 1 of the Sherman Act by acting as a ‘joint venture’ has repeatedly been rejected by the Supreme Court.” North Am. Soccer League v. National Football League, 670 F.2d 1249, 125