Banking mergers: The case to replace the 1995 banking merger guidelines—part I: A changed industry

Significant changes on the horizon in how the Department of Justice Antitrust Division evaluates mergers in the banking industry will materially affect the types of mergers that will be challenged and the advice attorneys give to their banking clients. The current set of banking-specific merger guidelines, published in 1995, have long fallen out of date, and are no longer consistent with economics best principles contained in the 2010 Horizontal Merger Guidelines. After recent merger reviews highlighted problems with the banking guidelines, the Division requested public comments on how it might revise its current approach to banking merger review analysis. In this first part of a two-part article, the author introduces the topic and comments on the guidance generally. The second part of this article, which will appear in an upcoming issue of The Banking Law Journal, will comment on the Herfindahl-Hirschman Index Threshold relevant product and geographic markets, rural versus urban markets, non-traditional banks, the de minimis exception, and offers conclusions.