Department of Justice Antitrust Division Calls for Comments on Guidelines for Competitive Review of Bank Mergers – Antitrust / Competition Law

United States: Justice Department’s Antitrust Division Seeks Comment on Guidelines for Competitive Review of Bank Mergers

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The Antitrust Division of the Department of Justice comments requested of the public regarding the 1995 competitive review guidelines for bank mergers as to whether the current review of bank mergers (i) is sufficient to prevent harmful mergers and (ii) takes into account all competitive factors under the laws.

The DOJ plans to use the public’s comments to determine whether to revise the guidelines and how they should reflect modern trends and current economic realities. In particular, the DOJ wants to ensure that the guidelines effectively protect against the build-up of market power and that Americans have a choice of which financial institutions they use.

The DOJ initially asked the public for 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.


It is not clear if this request for comment is being made now as the President’s executive’s 180-day milestone approaches. Competition order, or in response to the struggle that is taking place within the FDIC board of directors. (This dispute resulted in a non-issuance of an FDIC RFI proposal.)

The executive decree typically requests plans or reports from relevant agencies 180 days from its publication in July. The executive order specifically includes the Bank Merger Act and the merger parts of the Bank Holding Company Act as part of this review. While the DOJ issued a similar request for comment at the end of 2020, by opening an additional comment period, it allows the Biden administration’s DOJ to review this entry.

While it is not clear whether the DOJ’s request for comment relates to the FDIC board, House Finance Committee Chair Maxine Waters (D-CA) released a declaration sharply criticizing FDIC President Jelena McWilliams for blocking the issuance of a FDIC information request.

Primary sources

  1. Justice Department Press Release: Antitrust Division Seeks Additional Public Comments on Competitive Analysis of Bank Mergers
  2. DOJ 1995 Bank Merger Competitive Review Guidelines
  3. Statement by House of Representatives Financial Services Committee Chairman Maxine Waters opposing FDIC Chairman McWilliams’ attempt to block bank merger protections for working families

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