Modernizing Bank Merger Review

By Jeremy C. Kress, (University of Michigan)

Sixty years ago, Congress established a federal pre-approval regime for bank mergers to protect consumers from then-unprecedented consolidation in the banking sector. This process worked well for several decades, but it has since atrophied, producing numerous “too big to fail” banks.

This Article contends that regulators’ current approach to evaluating bank merger proposals is poorly suited for modern financial markets. Policymakers and scholars have traditionally focused on a single issue: whether a bank merger would reduce competition. Over the past two decades, however, changes in bank regulation and market structure — including the repeal of interstate banking restrictions and the emergence of nonbank financial service providers — have rendered bank antitrust analysis largely obsolete. As a result, regulators have rubber stamped recent bank mergers, despite evidence that such deals could harm consumers and destabilize financial markets. 

This Article asserts that contemporary bank merger analysis should instead emphasize statutory factors that regulators have long neglected: whether a proposed merger would increase systemic risks, enhance the public welfare, and strengthen the relevant institutions. This Article urges regulators to modernize their approach, and it proposes a novel framework to ensure that bank merger oversight safeguards the financial system. The proposals contained herein have far-reaching implications not only for bank regulation but also for the ongoing debate over merger policy in technology, agriculture, and other industries.

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