On September 17, the DOJ announced its withdrawal from the 1995 Bank Merger Guidelines, stating the 2023 Merger Guidelines will be the only authoritative statement across all industries. This decision followed collaboration with the Fed, FDIC and OCC and was informed by public feedback, departmental experience and market developments. The 2023 Merger Guidelines include predefined market definitions and thresholds for Herfindahl-Hirschman Index (HHI) calculations to identify mergers with significant adverse effects on competition. The DOJ also announced the release of new commentary for the 2023 Merger Guidelines, which identify competition issues related to bank mergers and provide transparency on the DOJ’s merger review process.
The announcement also clarified that neither the 2023 Merger Guidelines nor the 2024 Banking Addendum to these Guidelines predetermine DOJ enforcement actions, and that enforcement decisions will be made on a case-by-case basis. The 2024 Banking Addendum to the 2023 Merger Guidelines highlights the DOJ’s approach to evaluating competition in bank mergers under the Clayton Act. The Addendum identifies relevant sections of the 2023 Merger Guidelines for analyzing competitive consequences in banking, such as geographic overlaps and product-specific competition.
