The DOJ's Antitrust Division requested feedback from the public regarding the 1995 Bank Merger Competitive Review Guidelines as to whether current bank merger review (i) is sufficient to prevent harmful mergers and (ii) accounts for the full range of competitive factors under the laws.

The DOJ plans to use the public commentary to determine whether and how it should revise the guidelines so that they reflect modern trends and current economic realities. In particular, the DOJ wants to ensure that the guidelines effectively guard against the accumulation of market power and that Americans have a choice among the financial institutions they use.

The DOJ initially requested public comment on these guidelines in September 2020, including asking whether the 1800/200 Herfindahl-Hirschman Index ("HHI") screen should be updated, and whether there should be a de minimis exception, and now seeks to build on the responses it received. Comments must be received by February 15, 2022.

Commentary

It's unclear whether this request for comment is being made now on the approach of the 180-day milestone from the President's Executive Order on Competition, or in response to the fight occurring amongst the FDIC Board of Directors. (That dispute resulted in a proposed FDIC request for information not being issued.)

The Executive Order generally calls for plans or reports from relevant agencies 180 days from its issuance in July. The Executive Order specifically includes the Bank Merger Act and the merger portions of the Bank Holding Company Act as part of that review. While the DOJ issued a similar request for comment at the end of 2020, by opening an additional comment period, it does allow the Biden administration's DOJ to review that input.

While it is unclear whether the DOJ request for comment is related to the FDIC Board of Directors, House Financial Committee Chairwoman Maxine Waters (D-CA) issued a statement strongly criticizing FDIC Chair Jelena McWilliams for blocking the issuance of a request for information by the FDIC.

Primary Sources

1. DOJ Press Release: Antitrust Division Seeks Additional Public Comments on Bank Merger Competitive Analysis

2. DOJ 1995 Bank Merger Competitive Review Guidelines

3. House Financial Services Committee Chair Maxine Waters Statement Opposing FDIC Chair McWilliams’ Attempt to Block Bank Merger Protections for Working Families