Financial Advisory

Is Your Contemplated Bank Merger Anti-Competitive

By: Jeffrey P. Marsico

Yesterday at the ABA’s virtual Conference for Community Bankers (CCB), Federal Reserve Governor Michelle Bowman gave a speech, My Perspective on Bank Regulation and Supervision. In that speech, she briefly commented on the FRB’s review of merger applications from an anti-trust standpoint. She said:

“Technological developments and financial market evolution are quickly escalating competition in the banking industry, and our approach to analyzing the competitive effects of mergers and acquisitions needs to keep pace. The Board’s framework for banking antitrust analysis hasn’t changed substantially over the past couple of decades. I believe we should consider revisions to that framework that would better reflect the competition that smaller banks face in an industry quickly being transformed by technology and non-bank financial companies. As part of this effort, we have engaged in conversations and received feedback from community banks about the Board’s competitive analysis framework and its impact on their business strategies and long-term growth plans. We are in the process of reviewing our approach, and we are specifically considering the unique market dynamics faced by small community banks in rural and underserved areas.”


The Fed’s FAQs on their approach in analyzing the competitive effects of a merger say the following:


On the initial evaluation of the competitive effects of a combination:

The competitive analysis of banking acquisitions begins with an initial screen based on market shares and market concentration for the local banking markets in which the parties to a transaction have overlapping operations. Market shares for a local banking market are based on the deposits of depository institutions in the market. The Herfindahl-Hirschman Index (HHI) is the usual measure of market concentration and is calculated as the sum of squared market shares in a local banking market. For these initial calculations, the deposits of all institutions with a commercial bank charter receive 100 percent weight and the deposits of all institutions with a thrift charter (i.e. savings banks and savings and loan institutions) receive 50 percent weight in computing market shares. This weighting indicates that the Fed doesn’t think thrifts offer a full retail banking suite of products and/or they are concerned about the anti-competitive effects for in-market commercial banking. Although readers know that many thrifts pursue business banking strategies. And to a lesser degree, credit unions. Which are not part of the HHI calculation.

The Board delegates merger approval to individual Reserve Banks unless, among other reasons (i) the merger or acquisition would raise the HHI by 200 points or more to a level of 1,800 or higher in any local banking market in which the parties to a transaction have overlapping operations, or (ii) the merger or acquisition would increase the post-transaction market share for the acquiring firm to more than 35%. If these are triggered, off to Washington the merger application goes.

On how the Fed defines geographic markets:

No hard and fast rule. Many geographic markets follow Metropolitan Statistical Area (MSA) definitions or rural county lines, but some markets comprise multiple MSAs/counties or parts of MSAs/ counties, reflecting that economic activity does not always track political boundaries. Up-to-date geographic market definitions are available at the St. Louis’ Fed CASSIDI database or from the relevant Reserve Bank. Banks can dispute the definition of a geographic market relevant to their application by proposing an alternative market definition and providing evidence supporting the alternative. Such evidence should focus on retail banking customers’ substitution behavior (emphasis mine) or on the economic integration of the relevant economic areas for the proposed geographic market definition.


This runs contrary to the deposit weighting of 100% for commercial banks and 50% for thrifts. Why discount thrifts, and not even count credit unions if the true concern is retail customers’ ability to substitute?

And what about branchless banks? This gets to the crux of Governor Bowman’s comments, in my opinion. Why do we not count virtual banks such as USAA, Discover, and Ally, or neo banks such as Chime (Stride Bank or The Bancorp Bank)?

What I would suggest to regulators in contemplating change is to have FDIC and NCUA insured financial institutions report deposits by geography, such as Zip code, and break it down further between business and consumer. Let that be the new Summary of Deposits from which the anti-competitive effects of a merger is calculated. If you continue to weight deposits by institution type, determine first what anti-competitive risk we are trying to mitigate. Are we concerned more about business banking than retail banking? Then perhaps business deposits get 100% weighted in the HHI calculation and retail deposits get something less than that. Or, alternatively, perhaps Americans value a bank with a physical presence in the market, and therefore financial institutions with a physical presence get 100% weighted versus something less for institutions with no in-market presence. But the bank/thrift weighting scheme currently in effect does not reflect reality.

So in terms of how competitive analysis is now performed, I agree with Governor Bowman’s comments. Change is coming. And welcome.

~ Jeff