Antitrust Division Banking Guidelines Review: Public Comments Topics & Issues Guide

Public Comments Welcome

The Department of Justice’s Antitrust Division (“Division”) welcomed public comments on any issue that interested stakeholders believed was relevant to the Division’s consideration of whether to revise the 1995 Banking Guidelines or its competitive analysis of bank mergers. The deadline for submitting comments was February 15, 2022.

Find the public comments on the 2022 Antitrust Division Banking Guidelines Review: Public Comments page.

December 17, 2021

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

Scope of Division Review

  • Several prior commentators expressed support for broadening the factors considered by the Division when evaluating bank mergers.

    • To what extent should the Division’s competitive scrutiny of bank mergers apply standards, and incorporate factors, beyond those applicable to other industries solely under Section 7 of the Clayton Act?

    • In so doing, (1) what factors should the Division consider, (2) how should those factors be incorporated into the Division’s competitive review process, and (3) what additional remedies should the Division consider obtaining?

Data Submissions

  • What additional information and data should banks submit with their bank merger application to facilitate the competitive review?

  • The Division often considers the FDIC’s Summary of Deposits, and the Federal Financial Institutions Examination Council’s (“FFIEC”) Community Reinvestment Act data during the review of a bank merger application. Should the data submission requirements for these sources be updated—and in what way—to assist the competitive review of bank mergers? What additional information and data should the banking agencies collect on a routine basis to better analyze the competitive effects of bank mergers?

Updates

  • When seeking comments in September 2020, the Division asked interested parties to address whether and how it should include non-traditional banks in its competitive effects analysis. Commentary in response focused on the use of online banking services. We are also interested in whether and how internet-only banks (i.e. banks with no, or an extremely limited, physical branch network) factor into bank merger competitive review.

  • If you submitted a comment when the Division sought public comments in 2020, we would welcome additional submissions if updates to your prior comment are warranted.

Privacy and confidentiality: Written submissions and the identity of the submitter may be disclosed, reproduced, and distributed by publication and/or posting on the Department of Justice website, at the discretion of the Department of Justice. Information that is submitted in connection with this activity cannot be maintained as confidential by the Department of Justice. Written submissions should not include any information that the submitting person seeks to preserve as private or confidential.

Previous Public Comments

The Department of Justice previously invited comments from the public on the Banking Guidelines. The comments can be found on the 2020 Antitrust Division Banking Guidelines Review: Public Comments page. The deadline for submitting those comments was October 16, 2020. The Division sought specific public comments on the topics and issues listed below:

Guidance Generally

  • To what extent, if at all, is it useful to have banking-specific merger review guidance, beyond the 2010 Horizontal Merger Guidelines?

  • To what extent, if any, does the industry need greater clarity on how the Division applies the 2010 Horizontal Merger Guidelines in its investigations?

  • To what extent, if any, is it helpful to have joint guidance from the Antitrust Division and the banking agencies, i.e., the Federal Reserve Board of Governors (FRB), the Office of Comptroller of the Currency (OCC), and the Federal Deposit Insurance Corporation (FDIC)?

Herfindahl-Hirschman Index (HHI) Threshold

  • Should the screening thresholds in the 1995 Banking Guidelines be updated to reflect the HHI thresholds in the 2010 Horizontal Merger Guidelines? If so, please explain why with evidence, if available.

Relevant Product and Geographic Markets

  • Depending on the transaction, the Division generally reviews three separate product markets in banking matters: (1) retail banking products and services, (2) small business banking products and services, and (3) middle market banking products and services. Are there additional product markets that the Division should include in its analysis?

  • The 1995 Banking Guidelines specify that the Division screens bank merger applications using the FRB-defined geographic markets and/or at a county-level. Should there be other geographic market definitions used in the screening process? If so, what should they be and why?

  • Should the geographic markets for consumer and small business products and services still be considered local?

Rural versus Urban Markets

  • The dynamics of rural and urban markets can differ significantly. In what ways, if at all, should these distinctions affect the Division’s review?

  • Should the Division apply different screening criteria and HHI thresholds for urban vs rural markets? If so, how should the screening criteria and the thresholds differ?

  • The Division often considers farm credit lending as a mitigating factor. Is there a more appropriate way to measure the actual lending done by farm credit agencies in rural markets?

Non-Traditional Banks

  • Should the Division include non-traditional banks (e.g., online) in its competitive effects?

  • Does the Division give appropriate weight to online deposits?

  • Does the Division give appropriate weight to credit unions and thrifts?

  • Given that the geographic dispersion of deposits from online banks is not publicly available (by market or branch), suggest how these institutions can be incorporated into screening and competitive effects analysis.

De Minimis Exception

  • Should the Division implement an internal de minimis exception for very small transactions whereby the Division would automatically provide a report on the competitive factors of the transaction to the responsible banking agency but would not conduct an independent competitive effects analysis of these deals? If so, what would be an appropriate de minimis size of transaction?

Updated February 17, 2022

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