Ohio v. Amex, Supply Chain Fairness, and the Inadequacy of Antitrust's Consumer Welfare Standard

The Supreme Court’s decision in Ohio v. American Express last week demonstrates the inadequacy of antitrust’s consumer welfare standard, which limits enforcers to challenging only anticompetitive behavior that harms consumers. Under that standard, the Court could not condemn Amex’s blatantly anticompetitive limits on the ability of merchants to encourage consumers to use less expensive credit cards because the limits sapped the bargaining power of one level of the supply chain (merchants) in their negotiations with another (a credit card company), but did not obviously harm consumers. What antitrust needs is a standard that protects the bargaining power of Americans from anticompetitive practices used against them in each of the roles Americans occupy in their economic lives, not just the role of consumer.