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

The Division welcomes public comments on any issue that interested stakeholders believe is relevant to the Division’s consideration of whether to revise the 1995 Banking Guidelines or its competitive analysis of bank mergers.

The Department of Justice previously invited comments from the public on the Banking Guidelines. The comments can be found on the Antitrust Division Banking Guidelines Review: Public Comments page. The deadline for submitting those comments was October 16, 2020. The public comment period is now closed.*

September 1, 2020

Press Release: Antitrust Division Seeks Public Comments On Updating Bank Merger Review Analysis 

The Division seeks specific public comments on the following topics and issues:

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?

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.

*The original version of this release stated the public comment period ended on October 1, 2020. The original 30 day comment period was extended to 45 days, the public comment period ended on October 16, 2020.


Updated October 28, 2020

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