Department of Justice Antitrust Division Seeks Public Commentary on the Future of Financial Institutions

The Department of Justice’s Antitrust Division announced today that it is seeking additional public comments until Feb. 15, 2022, on whether and how the division should revise the 1995 Bank Merger Competitive Review Guidelines (Banking Guidelines). 

The division will use additional comments to ensure that the Banking Guidelines reflect current economic realities and empirical learning, ensure Americans have choices among financial institutions, and guard against the accumulation of market power. 

The division’s continued focus on the Banking Guidelines is part of an ongoing effort by the federal agencies responsible for banking regulation and supervision.

“The Antitrust Division shares with its federal partners an interest in ensuring bank mergers do not harm competition and the competitive process,” said Assistant Attorney General Jonathan Kanter of the Antitrust Division. 

“I commend Director Chopra for his leadership in this area, and look forward to reviewing updated comments as the division undertakes this important review. I am grateful to those stakeholders who participated in the public comment process so far, and I invite them and any other interested parties to remain engaged in it.”

On Sept. 1, 2020, the division issued a press release seeking comments on whether and how the Banking Guidelines should be revised. 

The call for public comment included six specific questions, including whether any new guidance should be bank-specific, whether any new bank merger guidance should be jointly issued, whether the 1800/200 Herfindahl-Hirschman Index (HHI) screen should be updated, and whether there should be a de minimis exception. 

Building on the responses, the updated call for comment focuses on whether bank merger review is currently sufficient to prevent harmful mergers and whether it accounts for the full range of competitive factors appropriate under the laws.

As part of its ongoing review, the division invites interested persons, including banks, other financial institutions, small businesses, small and local banks, laborers and workers, and other industry stakeholders, to provide information or comments relevant to whether the division should revise the Banking Guidelines or change the way it analyzes bank mergers to reflect modern trends in financial services and banking competition.

In particular, the division seeks public comments on the issues found in the Antitrust Division Banking Guidelines Review - Public Comments Topics & Issues Guide. 

The division has and will continue to consult with the Federal Reserve, the Office of the Comptroller of Currency and the Federal Deposit Insurance Corporation, and will review and consider public comments before deciding on the most appropriate course of action.

Comments on the Banking Guidelines can be emailed to ATR.BankMergers@usdoj.gov and must be received no later than Feb. 15, 2022.

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