II 117th CONGRESS 1st Session S. 2882 IN THE SENATE OF THE UNITED STATES September 29, 2021 Ms. Warren introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To amend certain banking laws to establish requirements for bank mergers, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Bank Merger Review Modernization Act of 2021 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Compliance with Federal consumer financial laws. Sec. 3. Cost-benefit analysis for merger transactions. Sec. 4. Community Reinvestment Act performance. Sec. 5. Financial stability considerations for merger transactions. Sec. 6. Financial criteria for certain merger transactions. Sec. 7. Managerial criteria for certain merger transactions. Sec. 8. Competitive effects. Sec. 9. Transparency in merger review. Sec. 10. Financial stability exception. Sec. 11. Prior approval requirements. Sec. 12. Citizen standing. Sec. 13. Savings and loan holding company acquisitions and merger transactions. 2. Compliance with Federal consumer financial laws (a) Application for mergers or acquisitions (1) In general Not later than 180 days after the date of the enactment of this Act, the Director of the Bureau of Consumer Financial Protection shall establish procedures for a covered applicant to submit an application to directly or indirectly merge with, or directly or indirectly acquire, a person that offers or provides consumer financial products or services (as defined in section 1002 of the Consumer Financial Protection Act of 2010 ( 12 U.S.C. 5481(14) )). (2) Public comment The Director shall allow a period of at least 30 days for public comment on applications submitted under paragraph (1). (b) Prohibition It shall be unlawful for a covered applicant to directly or indirectly merge with, or directly or indirectly acquire, a person that offers or provides consumer financial products or services (as defined in section 1002 of the Consumer Financial Protection Act of 2010 ( 12 U.S.C. 5481(14) )) without the prior written approval of the Director. (c) Considerations In considering an application under subsection (a), the Director shall— (1) consider the records of the covered applicant and the person with respect to compliance with the Federal consumer financial laws; and (2) deny such application if the resulting institution would not have adequate systems in place to ensure compliance with the Federal consumer financial laws. (d) Covered applicant defined In this section, the term covered applicant means an insured depository institution (as defined in section 3 of the Federal Deposit Insurance Act ( 12 U.S.C. 1813 )) or a depository institution holding company (as defined in such section) with more than $10,000,000,000 in total assets. 3. Cost-benefit analysis for merger transactions (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ) is amended by adding at the end the following new paragraph: (14) Analysis of costs and benefits (A) In general The responsible agency shall not approve any proposed merger transaction under this subsection unless the responsible agency determines that the public benefits of the merger transaction outweigh the expected costs. (B) Evaluation In evaluating the expected costs of the proposed merger transaction under subparagraph (A), the responsible agency shall consider— (i) the probable effect of the proposed merger transaction on the cost and availability of financial products and services; (ii) the probable effect of branch closures on customers of each bank or savings association involved in the proposed merger transaction; (iii) the probable effect of the proposed merger transaction on relevant local economies, including employment losses relating to branch closures and impacts on job quality; and (iv) any other cost of the proposed merger transaction that the responsible agency considers pursuant to this subsection. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ) is amended by adding at the end the following new paragraph: (8) Analysis of costs and benefits (A) In general The Board may not approve an application under this section unless the Board determines that the public benefits of the proposed transaction outweigh the expected costs. (B) Evaluation In evaluating the expected costs of the proposed transaction under subparagraph (A), the Board shall consider— (i) the probable effect of the proposed transaction on the cost and availability of financial products and services; (ii) the probable effect of branch closures on customers of each company involved in the proposed transaction; (iii) the probable effect of the proposed transaction on relevant local economies, including employment losses relating to branch closures and impacts on job quality; and (iv) any other cost of the proposed transaction that the Board considers pursuant to this subsection. . (2) Other transactions or activities Section 4(j)(2) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(2) ) is amended by adding at the end the following new subparagraph: (D) Analysis of costs and benefits (i) In general The Board shall deny a notice filed pursuant to this subsection unless the Board determines that the public benefits of the proposed transaction or activity described in the notice outweigh the expected costs. (ii) Evaluation In evaluating the expected costs of the proposed transaction under subparagraph (A), the Board shall consider— (I) the probable effect of the proposed transaction or activity on the cost and availability of financial products and services; (II) the probable effect of branch closures on customers of each company involved in the proposed transaction or activity; (III) the probable effect of the proposed transaction or activity on relevant local economies, including employment losses relating to branch closures and impacts on job quality; and (IV) any other cost of the proposed transaction or activity that the Board considers pursuant to this paragraph. . 4. Community Reinvestment Act performance (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 3, is further amended by adding at the end the following new paragraphs: (15) Community Reinvestment Act performance The responsible agency shall not approve a proposed merger transaction under this section if the largest insured depository institution that is party to such transaction, based on a comparison of the average total risk-weighted assets controlled by each insured depository institution that is party to such transaction during the previous 12-month period, has received a rating lower than outstanding record of meeting community credit needs on— (A) two out of the three most recent written evaluations required under section 807 of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2906 ); or (B) if three such evaluations are not available, the most recent written evaluation required under such section. (16) Community benefits plan (A) In general In reviewing any application filed under this paragraph, the responsible agency shall require— (i) submission to the appropriate Federal financial supervisory agency of a community benefits plan; (ii) that the insured depository institution consult with community-based organizations and other community stakeholders in developing the community benefits plan; and (iii) a public hearing to be held if any insured depository institution involved in the transaction has received a substantial noncompliance in meeting community credit needs or needs to improve record of meeting community credit needs rating in any assessment area during the last examination of such institution conducted pursuant to the Community Reinvestment Act of 1977. (B) Definition For purposes of this paragraph, community benefits plan means a plan that provides measurable goals for future amounts of safe and sound loans, investments, services, and other financial products for low- and moderate-income communities and other distressed or underserved communities. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 3, is further amended by adding at the end the following new paragraphs: (9) Community Reinvestment Act performance The Board shall deny an application under this section if either the lead insured depository institution of the applicant or the insured depository institution that would be the lead insured depository institution of the resulting company following consummation of the proposed transaction has received a rating lower than outstanding record of meeting community credit needs on— (A) two out of the three most recent written evaluations required under section 807 of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2906 ); or (B) if three such evaluations are not available, the most recent written evaluation required under such section. (10) Community benefits plan (A) In general In reviewing any application filed under this paragraph, the Board shall require— (i) submission to the appropriate Federal financial supervisory agency of a community benefits plan; (ii) that the company consult with community-based organizations and other community stakeholders in developing the community benefits plan; and (iii) a public hearing to be held if any bank that would be controlled by the resulting company has received a substantial noncompliance in meeting community credit needs or needs to improve record of meeting community credit needs rating in any assessment area during the last examination of such institution conducted pursuant to the Community Reinvestment Act of 1977. (B) Definition For purposes of this paragraph, community benefits plan means a plan that provides measurable goals for future amounts of safe and sound loans, investments, services, and other financial products for low- and moderate-income communities and other distressed or underserved communities. . (2) Other transactions or activities Section 4(j)(2) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(2) ), as amended by section 3, is further amended by adding at the end the following new subparagraphs: (E) Community Reinvestment Act performance The Board shall deny a notice filed pursuant to this subsection if the lead insured depository institution of the applicant or the insured depository institution that would be the lead insured depository institution of the resulting company following consummation of the proposed transaction or activity has received a rating lower than outstanding record of meeting community credit needs on— (i) two out of the three most recent written evaluations required under section 807 of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2906 ); or (ii) if three such evaluations are not available, the most recent written evaluation required under such section. (F) Community benefits plan (i) In general In reviewing any application filed under this paragraph, the Board shall require— (I) submission to the appropriate Federal financial supervisory agency of a community benefits plan; (II) that the company consult with community-based organizations and other community stakeholders in developing the community benefits plan; and (III) a public hearing to be held if any bank that would be controlled by the resulting company has received a substantial noncompliance in meeting community credit needs or needs to improve record of meeting community credit needs rating in any assessment area during the last examination of such institution conducted pursuant to the Community Reinvestment Act of 1977. (ii) Definition For purposes of this paragraph, community benefits plan means a plan that provides measurable goals for future amounts of safe and sound loans, investments, services, and other financial products for low- and moderate-income communities and other distressed or underserved communities. . (c) Community reinvestment act amendment Section 804 of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2903 ) is amended by adding at the end the following new subsection: (e) Community benefits plan In assessing and taking into account, under subsection (a), the record of a financial institution, the appropriate Federal financial supervisory agency shall consider as a factor the financial institution’s record of compliance with any community benefits plan pursuant to section 3(c)(10) or 4(j)(2)(F) of the Bank Holding Company Act of 1956 or section 18(c)(16) of the Federal Deposit Insurance Act, as applicable. . (d) Fair lending assessment Section 807(b)(1) of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2906(b)(1) ) is amended— (1) in subparagraph (A)— (A) in clause (ii), by striking and at the end; (B) by redesignating clause (iii) as clause (iv); and (C) by inserting after clause (ii) the following new clause: (iii) contain statistical analyses of the institution’s fair lending performance using data reported under the Home Mortgage Disclosure Act; and ; and (2) in subparagraph (B), by striking clauses (i) and (ii) and inserting clauses (i), (ii), and (iii) . 5. Financial stability considerations for merger transactions (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 4, is further amended— (1) in paragraph (5)— (A) in subparagraph (A), by striking or at the end; (B) in subparagraph (B), by striking the period at the end and inserting , or ; and (C) by inserting after subparagraph (B) the following new subparagraph: (C) any proposed merger transaction for which the resulting insured depository institution would receive a score greater than 25 on the assessment described in paragraph (17)(B). ; and (2) by adding at the end the following new paragraph: (17) Financial stability In considering the risk to the stability of the United States banking or financial system under paragraph (5), the responsible agency shall— (A) take into account— (i) the insured depository institutions or bank holding companies that might acquire the applicant insured depository institution if the resulting insured depository institution were to fail after consummation of the proposed merger; and (ii) whether such an acquisition would result in greater or more concentrated risks to the stability of the United States banking or financial system; and (B) use the assessment methodology developed by the Basel Committee on Banking Supervision for assessing global systemically important banks. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c)(7) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c)(7) ), as amended by section 4, is further amended— (A) by striking In every case, and inserting the following: (A) In general In every case, ; and (B) by adding at the end the following new subparagraphs: (B) Considerations The Board shall not approve an application under this section for which the resulting company would receive a score greater than 25 on the assessment described in subparagraph (C)(ii). (C) Financial stability In considering the risk to the stability of the United States banking or financial system, the Board shall— (i) take into account— (I) the insured depository institutions or bank holding companies that might acquire the resulting company if it were to fail after consummation of the proposed transaction; and (II) whether such an acquisition would result in greater or more concentrated risks to the stability of the United States banking or financial system; and (ii) use the assessment methodology developed by the Basel Committee on Banking Supervision for assessing global systemically important banks. . (2) Proposed transactions or activities Section 4(j)(2) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(2) ), as amended by section 4, is further amended by adding at the end the following new subparagraphs: (G) Considerations The Board shall deny a notice filed pursuant to this subsection if the resulting company would receive a score greater than 25 on the assessment described in subparagraph (H)(ii). (H) Assessment of financial stability In considering the risk to the stability of the United States banking or financial system, the Board shall— (i) take into account— (I) the insured depository institutions or bank holding companies that might acquire the applicant bank holding company if the resulting company were to fail after consummation of the proposed proposal; and (II) whether such an acquisition would result in greater or more concentrated risks to the stability of the United States banking or financial system; and (ii) use the assessment methodology developed by the Basel Committee on Banking Supervision for assessing global systemically important banks. . 6. Financial criteria for certain merger transactions (a) Stress tests (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 5, is further amended by adding at the end the following new paragraphs: (11) Stress tests (A) In general If a resulting company will have total consolidated assets greater than or equal to $100,000,000,000, the Board shall evaluate the pro forma balance sheet of the resulting company to assess whether such resulting company would have the capital, on a total consolidated basis, necessary to absorb losses as a result of adverse economic conditions. (B) Considerations The Board shall not approve an application under this section unless the resulting company would remain at least adequately capitalized in severely adverse economic conditions under the evaluation described in subparagraph (A). . (2) Proposed transactions or activities Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ), as amended by section 5, is further amended by adding at the end the following new paragraphs: (8) Stress tests (A) In general If a resulting company will have total consolidated assets greater than or equal to $100,000,000,000, the Board shall evaluate the pro forma balance sheet of the resulting company to determine whether such resulting company would have the capital, on a total consolidated basis, necessary to absorb losses as a result of adverse economic conditions. (B) Considerations The Board shall deny a notice submitted pursuant to this subsection if the resulting company would not remain at least adequately capitalized in severely adverse economic conditions under the evaluation described in subparagraph (A). . (b) Well capitalized thresholds (1) Definition of well capitalized for interstate bank mergers Section 44(g) of the Federal Deposit Insurance Act ( 12 U.S.C. 1831u(g) ) is amended by adding at the end the following new paragraph: (12) Well capitalized The term well capitalized means, with respect to an insured depository institution with total consolidated assets of $10,000,000,000 or more, that such institution exceeds the required minimum level for each relevant capital measure to be considered adequately capitalized (as determined under section 38) by at least 50 percent of such minimum. . (2) Bank holding companies Section 2(o)(B)(ii) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1841(o)(B)(ii) ) is amended to read as follows: (ii) Well capitalized A bank holding company is well capitalized if— (I) with respect to a company that has total consolidated assets of $10,000,000,000 or more, it exceeds the required minimum level for each relevant capital measure (as determined by the Board) by at least 50 percent of such minimum; and (II) with respect to a company that has total consolidated assets of less than $10,000,000,000, it meets the required capital levels for well capitalized bank holding companies established by the Board. . 7. Managerial criteria for certain merger transactions (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by sections 3(a), 4(a), and 5(a) of this Act, is amended by adding at the end the following: (18) (A) In this paragraph, the term covered transaction means a merger transaction in which the resulting company would have more than $100,000,000,000 in total assets. (B) An application for approval of a covered transaction shall include the name of each individual who will serve on the board of directors or serve as a senior executive officer of the resulting company. (C) The responsible agency shall make a written evaluation of the competence, experience, character, and integrity of each individual described in subparagraph (B). (D) The responsible agency shall not approve a covered transaction if the responsible agency determines that the competence, experience, character, or integrity of any individual described in subparagraph (B) indicates that it would not be in the best interests of the depositors of the depository institution or in the best interests of the public to permit the individual to be employed by, or associated with, the resulting company. (E) The responsible agency shall make any written evaluation described in subparagraph (C) publicly available after the date on which the responsible agency approves or denies a covered transaction. . (b) Bank holding companies (1) Acquisition of bank shares or assets Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by sections 3(b)(1), 4(b)(1), and 6(a)(1) of this Act, is amended by adding at the end the following: (12) Covered transactions (A) Definition In this paragraph, the term covered transaction means an acquisition, merger, or consolidation under this section in which the resulting company would have more than $100,000,000,000 in total assets. (B) Listing of members of the board of directors and senior executive officers (i) In general An application for approval of a covered transaction shall include the name of each individual who will serve on the board of directors or serve as a senior executive officer of the resulting company. (ii) Written evaluation The Board shall make a written evaluation of the competence, experience, character, and integrity of each individual described in clause (i). (iii) Best interests The Board shall not approve a covered transaction if the Board determines that the competence, experience, character, or integrity of any individual described in clause (i) indicates that it would not be in the best interests of the shareholders of the bank holding company or in the best interests of the public to permit the individual to be employed by, or associated with, the resulting company. (iv) Publicly available The Board shall make any written evaluation described in clause (ii) publicly available after the date on which the Board approves or denies a covered transaction. . (2) Interests in nonbanking organizations Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ), as amended by section 6(a)(2) of this Act, is amended by adding at the end the following: (9) Covered transactions (A) Definition In this paragraph, the term covered transaction means a transaction under this subsection in which the resulting company would have more than $100,000,000,000 in total assets. (B) Listing of members of the board of directors and senior executive officers (i) In general Notice for approval of a covered transaction shall include the name of each individual who will serve on the board of directors or serve as a senior executive officer of the resulting company. (ii) Written evaluation The Board shall make a written evaluation of the competence, experience, character, and integrity of each individual described in clause (i). (iii) Best interests The Board shall deny a proposed covered transaction if the Board determines that the competence, experience, character, or integrity of any individual described in clause (i) indicates that it would not be in the best interests of the shareholders of the bank holding company or in the best interests of the public to permit the individual to be employed by, or associated with, the resulting company. (iv) Publicly available The Board shall make any written evaluation described in clause (ii) publicly available after the date on which the Board approves or denies a covered transaction. . 8. Competitive effects (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 7, is further amended by adding at the end the following new paragraph: (19) Competitive effects (A) Product markets In every case, the responsible agency shall consider the competitive effects of the proposed transaction on the market for— (i) the cluster of commercial banking products and services, as described in United States v. Philadelphia National Bank, 374 U.S. 321 (1963); (ii) commercial deposits; (iii) loans to small businesses, using data reported under the Community Reinvestment Act of 1977 for loans to small businesses with less than $1,000,000 in gross annual revenue, and any other data the responsible agency deems appropriate to collect for this purpose; (iv) home mortgage loans, using data reported under the Home Mortgage Disclosure Act of 1975 for first-lien mortgage loans for single family homes, and any other data the responsible agency deems appropriate to collect for this purpose; and (v) any other financial product that comprises a substantial portion of the activities of each bank or savings association involved in the proposed merger transaction, as determined by the responsible agency. (B) Geographic markets The responsible agency shall consider the competitive effects of the proposed transaction on the product markets identified in subparagraph (A) with respect to each of the following geographic markets as defined by the United States Census Bureau: (i) Each State in which the resulting company would operate. (ii) Each core-based statistical area in which the resulting company would operate. (iii) Each county in which the resulting company would operate. (iv) Any other geographic area the responsible agency deems appropriate. (C) Herfindahl-hirschman index threshold for heightened scrutiny (i) In general When evaluating the competitive effects of the proposed transaction, the responsible agency shall apply higher scrutiny to any markets in which the transaction would result in a Herfindahl-Hirschman Index over 1800 and an increase of more than 200. (ii) Rule of construction Nothing in clause (i) may be construed as limiting the authority of the responsible agency to apply higher scrutiny to any markets in which the transaction would result in an Herfindahl-Hirschman Index under 1800 or an increase of less than 200. (D) Additional considerations When evaluating the competitive effects of the proposed transaction, the responsible agency shall consider the extent to which— (i) the resulting institution could receive a too big to fail subsidy; (ii) the proposed transaction could create or intensify conflicts of interest; (iii) the proposed transaction could diminish product quality, including consumer privacy and access to branch offices; (iv) the proposed transaction could lead to the exploitation of consumers’ data; (v) the proposed transaction could impair the resilience of the United States or global financial systems; (vi) common ownership of firms in the relevant markets could impair competition; (vii) the proposed transaction could impact wages and working standards in the relevant markets; (viii) the proposed transaction could create or amplify existing climate and environmental risks; and (ix) any other factors that the responsible agency deems appropriate could impair competition. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 7, is further amended by adding at the end the following new paragraph: (13) Competitive effects (A) Product markets In every case, the Board shall consider the competitive effects of the proposed transaction on the market for— (i) the cluster of commercial banking products and services, as described in United States v. Philadelphia National Bank, 374 U.S. 321 (1963); (ii) commercial deposits; (iii) loans to small businesses, using data reported under the Community Reinvestment Act of 1977 for loans to small businesses with less than $1,000,000 in gross annual revenue, and any other data the Board deems appropriate to collect for this purpose; (iv) home mortgage loans, using data reported under the Home Mortgage Disclosure Act of 1975 for first-lien mortgage loans for single family homes, and any other data the Board deems appropriate to collect for this purpose; and (v) any other financial product that comprises a substantial portion of the activities of each bank or savings association involved in the proposed merger transaction, as determined by the Board. (B) Geographic markets The Board shall consider the competitive effects of the proposed transaction on the product markets identified in subparagraph (A) with respect to each of the following geographic markets: (i) Each State in which the resulting company would operate. (ii) Each core-based statistical area in which the resulting company would operate. (iii) Each county in which the resulting company would operate. (iv) Any other geographic area the Board deems appropriate. (C) Herfindahl-hirschman index threshold for heightened scrutiny (i) In general When evaluating the competitive effects of the proposed transaction, the responsible agency shall apply higher scrutiny to any markets in which the transaction would result in a Herfindahl-Hirschman Index over 1800 and an increase of more than 200. (ii) Rule of construction Nothing in clause (i) may be construed as limiting the authority of the responsible agency to apply higher scrutiny to any markets in which the transaction would result in an Herfindahl-Hirschman Index under 1800 or an increase of less than 200. (D) Additional considerations When evaluating the competitive effects of the proposed transaction, the responsible agency shall consider the extent to which— (i) the resulting institution could receive a too big to fail subsidy; (ii) the proposed transaction could create or intensify conflicts of interest; (iii) the proposed transaction could diminish product quality, including consumer privacy and access to branch offices; (iv) the proposed transaction could lead to the exploitation of consumers’ data; (v) the proposed transaction could impair the resilience of the United States or global financial systems; (vi) common ownership of firms in the relevant markets could impair competition; (vii) the proposed transaction could impact wages and working standards in the relevant markets; (viii) the proposed transaction could create or amplify existing climate and environmental risks; and (ix) any other factors that the responsible agency deems appropriate could impair competition. . (2) Proposed transactions or activities Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ) as amended by section 7, is further amended is amended by adding at the end the following new paragraph: (10) Competitive effects (A) Product markets In every case, the Board shall consider the competitive effects of the proposed transaction on the market for— (i) commercial deposits; (ii) loans to small businesses, using data reported under the Community Reinvestment Act of 1977 for loans to small businesses with less than $1,000,000 in gross annual revenue, and any other data the Board deems appropriate to collect for this purpose; (iii) home mortgage loans, using data reported under the Home Mortgage Disclosure Act of 1975 for first-lien mortgage loans for single family homes, and any other data the Board deems appropriate to collect for this purpose; and (iv) any other financial product that comprises a substantial portion of the activities of each bank or savings association involved in the proposed merger transaction, as determined by the Board. (B) Geographic markets The Board shall consider the competitive effects of the proposed transaction on the product markets identified in subparagraph (A) with respect to each of the following geographic markets: (i) Each State in which the resulting company would operate. (ii) Each core-based statistical area in which the resulting company would operate. (iii) Each county in which the resulting company would operate. (iv) Any other geographic area the Board deems appropriate. (C) Herfindahl-hirschman index threshold for heightened scrutiny (i) In general When evaluating the competitive effects of the proposed transaction, the responsible agency shall apply higher scrutiny to any markets in which the transaction would result in a Herfindahl-Hirschman Index over 1800 and an increase of more than 200. (ii) Rule of construction Nothing in clause (i) may be construed as limiting the authority of the responsible agency to apply higher scrutiny to any markets in which the transaction would result in an Herfindahl-Hirschman Index under 1800 or an increase of less than 200. (D) Additional considerations When evaluating the competitive effects of the proposed transaction, the responsible agency shall consider the extent to which— (i) the resulting institution could receive a too big to fail subsidy; (ii) the proposed transaction could create or intensify conflicts of interest; (iii) the proposed transaction could diminish product quality, including consumer privacy and access to branch offices; (iv) the proposed transaction could lead to the exploitation of consumers’ data; (v) the proposed transaction could impair the resilience of the United States or global financial systems; (vi) common ownership of firms in the relevant markets could impair competition; (vii) the proposed transaction could impact wages and working standards in the relevant markets; (viii) the proposed transaction could create or amplify existing climate and environmental risks; and (ix) any other factors that the responsible agency deems appropriate could impair competition. . 9. Transparency in merger review (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 8, is further amended by adding at the end the following new paragraph: (20) Transparency (A) In general In any application under this section— (i) an insured depository institution shall— (I) disclose whether any persons employed by, representing, or acting on behalf of the depository institution have had verbal or written communications with the responsible agency, a Federal reserve bank, or any other Federal regulatory agency regarding the proposed merger transaction; and (II) identify the dates and the names of individuals involved in, and the content of, all communications described in subclause (I); and (ii) the chief executive officer and chief legal officer of an insured depository institution shall certify that no persons employed by, representing, or acting on behalf of the depository institution asked for or received assurances from the responsible agency, a Federal reserve bank, or any other Federal regulatory agency that the proposed merger transaction would be approved of that there would be no barriers to such approval. (B) Updates An insured depository institution shall update the disclosure and certification described in subparagraph (A) as needed within 2 business days of any communication that occurs before the responsible agency makes a final decision on a proposed merger transaction. (C) Publication The responsible agency shall publish on the website of such agency the disclosure, certification, and any updates required under this paragraph within 1 business day of receipt. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 8, is further amended by adding at the end the following new paragraph: (14) Transparency (A) In general In any application under this section— (i) a bank holding company shall— (I) disclose whether any persons employed by, representing, or acting on behalf of the bank holding company have had verbal or written communications with the Board, a Federal reserve bank, or any other Federal regulatory agency regarding the proposal; and (II) identify the dates and the names of individuals involved in, and the content of, all communications described in subclause (I); and (ii) the chief executive officer and chief legal officer of a bank holding company shall certify that no persons employed by, representing, or acting on behalf of the bank holding company asked for or received assurances from the Board, a Federal reserve bank, or any other Federal regulatory agency that the proposal would be approved of that there would be no barriers to such approval. (B) Updates A bank holding company shall update the disclosure and certification described in subparagraph (A) as needed within 2 business days of any communication that occurs before the Board makes a final decision on a proposal. (C) Publication The Board shall publish on the website of the Board the disclosure, certification, and any updates required under this paragraph within 1 business day of receipt. . (2) Proposed transactions or activities Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ) as amended by section 8, is further amended by adding at the end the following new paragraph: (11) Transparency (A) In general In any notice under this section— (i) a bank holding company shall— (I) disclose whether any persons employed by, representing, or acting on behalf of the bank holding company have had verbal or written communications with the Board, a Federal reserve bank, or any other Federal regulatory agency regarding the proposal; and (II) identify the dates and the names of individuals involved in, and the content of, all communications described in subclause (I); and (ii) the chief executive officer and chief legal officer of a bank holding company shall certify that no persons employed by, representing, or acting on behalf of the bank holding company asked for or received assurances from the Board, a Federal reserve bank, or any other Federal regulatory agency that the proposal would be approved of that there would be no barriers to such approval. (B) Updates A bank holding company shall update the disclosure and certification described in subparagraph (A) as needed within 2 business days of any communication that occurs before the Board makes a final decision on a proposal. (C) Publication The Board shall publish on the website of the Board the disclosure, certification, and any updates required under this paragraph within 1 business day of receipt. . 10. Financial stability exception (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 9, is further amended by adding at the end the following new paragraph: (21) FSOC determination Notwithstanding paragraphs (5)(c), (14), (15), (16), and (17) of this subsection, if the Financial Stability Oversight Council determines by a 2⁄3 vote that a proposed merger transaction under this subsection is necessary to preserve the stability of the United States banking or financial system, the responsible agency may approve such transaction. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 9, is further amended by adding at the end the following new paragraph: (15) F SOC determination Notwithstanding paragraphs (7)(B), (8), (9), (10), and (11) of this subsection, if the Financial Stability Oversight Council determines by a 2⁄3 vote that a proposed acquisition, merger, or consolidation under this subsection is necessary to preserve the stability of the United States banking or financial system, the Board may approve such acquisition, merger, or consolidation. . (2) Proposed transactions or activities Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ), as amended by section 8, is amended by adding at the end the following new paragraph: (12) F SOC determination Notwithstanding paragraphs (2)(D), (2)(E), (2)(F), (2)(G), and (8) of this subsection, if the Financial Stability Oversight Council determines by a 2⁄3 vote that a proposed transaction or activity under this subsection is necessary to preserve the stability of the United States banking or financial system, the Board may approve such transaction or activity. . 11. Prior approval requirements (a) Nonbanking transactions or activities (1) Bank Holding Company Act of 1956 (A) In general Section 4(k)(6) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(k)(6) is amended by striking subparagraph (B) and inserting the following: (B) Approval required (i) In general A financial holding company may not commence any activity, or acquire any company, pursuant to paragraph (4) or any regulation prescribed or order issued under paragraph (5) without prior approval of the Board. (ii) Notice procedures The procedures set forth in subsection (j)(1) shall apply to a notice pursuant to clause (i). (iii) Standards for review The standards provided in subsection (j)(2) shall apply to a notice pursuant to clause (i). (iv) Hart-scott-rodino filing requirement Solely for purposes of section 7A(c)(8) of the Clayton Act ( 15 U.S.C. 18a(c)(8) ), the transactions subject to the requirements of this paragraph shall be treated as if the approval of the Board is not required. . (B) Technical and conforming amendments Section 4(j) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j) ) is amended by striking paragraphs (3) through (7). (2) Financial Stability Act of 2010 Section 163 of the Financial Stability Act of 2010 ( 12 U.S.C. 5363 ) is amended by striking subsection (b) and inserting the following: (b) Acquisition of nonbank companies (1) Prior notice A nonbank financial company supervised by the Board of Governors shall not acquire direct or indirect ownership or control of any voting shares of any company (other than an insured depository institution) that is engaged in activities described in section 4(k) of the Bank Holding Company Act of 1956 without providing written notice to the Board of Governors in advance of the transaction. (2) Notice procedures The notice procedures set forth in section 4(j)(1) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(1) ) shall apply to an acquisition of any company (other than an insured depository institution) by a nonbank financial company supervised by the Board of Governors, as described in paragraph (1), including any company engaged in activities described in section 4(k) of that Act. (3) Standards for review The standards provided in section 4(j)(2) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(2) ) shall apply to an acquisition of any company (other than insured depository institution) by a nonbank financial company supervised by the Board of Governors, as described in paragraph (1). (4) Hart-scott-rodino filing requirement Solely for purposes of section 7A(c)(8) of the Clayton Act ( 15 U.S.C. 18a(c)(8) ), the transactions subject to the requirements of paragraph (1) shall be treated as if Board of Governors approval is not required. . (b) International acquisitions by U.S. banking organizations (1) Specific consent required A direct or indirect investment by a U.S. banking organization in a foreign organization shall require the specific consent of the Board of Governors of the Federal Reserve System. (2) Regulations Not later than 180 days after the date of enactment of this Act, the Board of Governors of the Federal Reserve System shall issue regulations implementing paragraph (1). 12. Citizen standing (a) Insured depository institutions Section 18(c) of the Federal Deposit Insurance Act ( 12 U.S.C. 1828(c) ), as amended by section 10, is further amended by adding at the end the following new paragraph: (22) Citizen standing (A) In general Not later than 10 days after the approval of a merger transaction by the responsible agency under this subsection or the denial of a request for reconsideration of an application for a merger transaction, an individual may file a civil action in the appropriate United States district court to review such approval, regardless of whether the individual submitted a comment or otherwise participated in the application process for approval of the merger transaction. (B) Consideration In any such action, the court shall review de novo the issues presented, consider the matter on an expedited basis, and issue a decision within 30 days. (C) Costs An individual who files a civil action under this paragraph may not be required to pay the costs of the responsible agency or any party to the merger transaction that is the subject of the civil action. (D) Effect on merger transaction The proposed merger transaction that is the subject of a civil action under this paragraph may not be consummated until the court issues a final decision in such action. . (b) Bank holding companies (1) Proposed acquisitions, mergers, or consolidations Section 3(c) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1842(c) ), as amended by section 10, is further amended by adding at the end the following new paragraph: (16) Citizen standing (A) In general Not later than 10 days after the approval of an application under this section by the Board, or the denial of a request for reconsideration of such an application by the Board, an individual may file a civil action in the appropriate United States district court to review such approval, regardless of whether the individual submitted a comment or otherwise participated in the application process. (B) Consideration In any such action, the court shall review de novo the issues presented, consider the matter on an expedited basis, and issue a decision within 30 days. (C) Costs An individual who files a civil action under this paragraph may not be required to pay the costs of the Board or any party to the application that is the subject of the civil action. (D) Effect on application The proposed acquisition, merger, or consolidation that is the subject of a civil action under this paragraph may not be consummated until the court issues a final decision in such action. . (2) Other transactions or activities Section 4(j)(2) of the Bank Holding Company Act of 1956 ( 12 U.S.C. 1843(j)(2) ), as amended by section 5, is further amended by adding at the end the following new subparagraph: (I) Citizen standing (i) In general Not later than 10 days after the approval of a notice under this subsection by the Board, or the denial of a request for reconsideration of such notice by the Board, an individual may file a civil action in the appropriate United States district court to review such approval, regardless of whether the individual submitted a comment or otherwise participated in the notice process. (ii) Consideration In any such action, the court shall review de novo the issues presented, consider the matter on an expedited basis, and issue a decision within 30 days. (iii) Costs An individual who files a civil action under this subparagraph may not be required to pay the costs of the Board or any party to the notice that is the subject of the civil action. (iv) Effect on notice The proposed transaction or activity that is the subject of a civil action under this subparagraph may not be commenced or consummated until the court issues a final decision in such action. . 13. Savings and loan holding company acquisitions and merger transactions (a) Section 10(e) of the Home Owners’ Loan Act ( 12 U.S.C. 1467a(e) ) is amended by adding at the end the following: (8) Additional considerations (A) Analysis of costs and benefits (i) In general The Board may not approve an application under this section unless the Board determines that the public benefits of the proposed transaction outweigh the expected costs. (ii) Evaluation In evaluating the expected costs of the proposed transaction under subparagraph (A), the Board shall consider— (I) the probable effect of the proposed transaction on the cost and availability of financial products and services; (II) the probable effect of branch closures on customers of each company involved in the proposed transaction; (III) the probable effect of the proposed transaction on relevant local economies, including employment losses relating to branch closures and impacts on job quality; and (IV) any other cost of the proposed transaction that the Board considers pursuant to this subsection. (B) Community reinvestment act performance The Board shall deny an application under this section if either the lead insured depository institution of the applicant or the insured depository institution that would be the lead insured depository institution of the resulting company following consummation of the proposed transaction has received a rating lower than outstanding record of meeting community credit needs on— (i) two out of the three most recent written evaluations required under section 807 of the Community Reinvestment Act of 1977 ( 12 U.S.C. 2906 ); or (ii) if three such evaluations are not available, the most recent written evaluation required under such section. (C) Community benefits plan (i) In general In reviewing any application filed under this paragraph, the Board shall require— (I) submission to the appropriate Federal financial supervisory agency of a community benefits plan; (II) that the company consult with community-based organizations and other community stakeholders in developing the community benefits plan; and (III) a public hearing to be held if any bank that would be controlled by the resulting company has received a substantial noncompliance in meeting community credit needs or needs to improve record of meeting community credit needs rating in any assessment area during the last examination of such institution conducted pursuant to the Community Reinvestment Act of 1977. (ii) Definition For purposes of this paragraph, community benefits plan means a plan that provides measurable goals for future amounts of safe and sound loans, investments, services, and other financial products for low- and moderate-income communities and other distressed or underserved communities. (D) Financial stability (i) In general In every case, the Board shall take into consideration the extent to which a proposed acquisition, merger, or consolidation would result in greater or more concentrated risks to the stability of the United States banking or financial system. (ii) In considering the risk to the stability of the United States banking or financial system, the Board shall take into account— (I) the insured depository institutions or bank holding companies that might acquire the resulting company if it were to fail after consummation of the proposed transaction; and (II) whether such an acquisition would result in greater or more concentrated risks to the stability of the United States banking or financial system. (E) Financial criteria (i) Well capitalized requirement The Board shall not approve any proposed acquisition, merger, or consolidation unless the company is well capitalized and would remain well capitalized upon consummation of the proposed transaction. (ii) Definition A company is well capitalized if— (I) with respect to a company that has total consolidated assets of $10,000,000,000 or more, it exceeds the required minimum level for each relevant capital measure (as determined by the Board) by at least 50 percent of such minimum; and (II) with respect to a company that has total consolidated assets of less than $10,000,000,000, it meets the required capital levels for well capitalized savings and loan holding companies established by the Board. (iii) Stress tests (I) In general If a resulting company will have total consolidated assets greater than or equal to $100,000,000,000, the Board shall evaluate the pro forma balance sheet of the resulting company to determine whether such resulting company would have the capital, on a total consolidated basis, necessary to absorb losses as a result of adverse economic conditions. (II) Considerations The Board shall deny a notice submitted pursuant to this subsection if the resulting company would not remain at least adequately capitalized in severely adverse economic conditions under the evaluation described in subparagraph (A). (F) Managerial criteria (i) Well managed requirement The Board shall not approve any proposed acquisition, merger, or consolidation unless the company is well managed and would remain well managed upon consummation of the proposed transaction. (ii) Covered transactions (I) Definition In this paragraph, the term covered transaction means an acquisition, merger, or consolidation under this section in which the resulting company would have more than $100,000,000,000 in total assets. (G) Listing of members of the board of directors and senior executive officers (i) In general An application for approval of a covered transaction shall include the name of each individual who will serve on the board of directors or serve as a senior executive officer of the resulting company. (ii) Written evaluation The Board shall make a written evaluation of the competence, experience, character, and integrity of each individual described in clause (i). (iii) Best interests The Board shall not approve a covered transaction if the Board determines that the competence, experience, character, or integrity of any individual described in clause (i) indicates that it would not be in the best interests of the shareholders of the bank holding company or in the best interests of the public to permit the individual to be employed by, or associated with, the resulting company. (iv) Publicly available The Board shall make any written evaluation described in clause (ii) publicly available after the date on which the Board approves or denies a covered transaction. (H) Competitive effects (i) Product markets In every case, the Board shall consider the competitive effects of the proposed transaction on the market for— (I) savings association deposits; (II) loans to small businesses, using data reported under the Community Reinvestment Act of 1977 for loans to small businesses with less than $1,000,000 in gross annual revenue, and any other data the Board deems appropriate to collect for this purpose; (III) home mortgage loans, using data reported under the Home Mortgage Disclosure Act of 1975 for first-lien mortgage loans for single family homes, and any other data the Board deems appropriate to collect for this purpose; and (IV) any other financial product that comprises a substantial portion of the activities of each bank or savings association involved in the proposed merger transaction, as determined by the Board. (ii) Geographic markets The Board shall consider the competitive effects of the proposed transaction on the product markets identified in clause (i) with respect to each of the following geographic markets: (I) Each State in which the resulting company would operate. (II) Each core-based statistical area in which the resulting company would operate. (III) Each county in which the resulting company would operate. (IV) Any other geographic area the Board deems appropriate. (I) Herfindahl-hirschman index threshold for heightened scrutiny (i) In general When evaluating the competitive effects of the proposed transaction, the Board shall apply higher scrutiny to any markets in which the transaction would result in a Herfindahl-Hirschman Index over 1800 and an increase of more than 200. (ii) Rule of construction Nothing in clause (i) may be construed as limiting the authority of the Board to apply higher scrutiny to any markets in which the transaction would result in an Herfindahl-Hirschman Index under 1800 or an increase of less than 200. (J) Additional considerations When evaluating the competitive effects of the proposed transaction, the Board shall consider the extent to which— (i) the resulting institution could receive a too big to fail subsidy; (ii) the proposed transaction could create or intensify conflicts of interest; (iii) the proposed transaction could diminish product quality, including consumer privacy and access to branch offices; (iv) the proposed transaction could lead to the exploitation of consumers’ data; (v) the proposed transaction could impair the resilience of the United States or global financial systems; (vi) common ownership of firms in the relevant markets could impair competition; (vii) the proposed transaction could impact wages and working standards in the relevant markets; (viii) the proposed transaction could create or amplify existing climate and environmental risks; and (ix) any other factors that the Board deems appropriate could impair competition. (9) Transparency (A) In general In any application under this section— (i) a company shall— (I) disclose whether any persons employed by, representing, or acting on behalf of the company have had verbal or written communications with the Board, a Federal reserve bank, or any other Federal regulatory agency regarding the proposal; and (II) identify the dates and the names of individuals involved in, and the content of, all communications in described in subclause (I); and (ii) the chief executive officer and chief legal officer of a company shall certify that no persons employed by, representing, or acting on behalf of the company asked for or received assurances from the Board, a Federal reserve bank, or any other Federal regulatory agency that the proposal would be approved of that there would be no barriers to such approval. (B) Updates A company shall update the disclosure and certification described in subparagraph (A) as needed within 2 business days of any communication that occurs before the Board makes a final decision on a proposal. (C) Publication The Board shall publish on the website of the Board the disclosure, certification, and any updates required under this paragraph within 1 business day of receipt. (10) Financial stability exception Notwithstanding paragraphs (8)(A), (8)(B), (8)(C), and (8)(E)(iii) of this subsection, if the Financial Stability Oversight Council determines by a 2/3 vote that a proposed acquisition, merger, or consolidation under this subsection is necessary to preserve the stability of the United States banking or financial system, the Board may approve such acquisition, merger, or consolidation. (11) Citizen standing (A) In general Not later than 10 days after the approval of an application under this section by the Board, or the denial of a request for reconsideration of such an application by the Board, an individual may file a civil action in the appropriate United States district court to review such approval, regardless of whether the individual submitted a comment or otherwise participated in the application process. (B) Consideration In any such action, the court shall review de novo the issues presented, consider the matter on an expedited basis, and issue a decision within 30 days. (C) Costs An individual who files a civil action under this paragraph may not be required to pay the costs of the Board or any party to the application that is the subject of the civil action. (D) Effect on application The proposed acquisition, merger, or consolidation that is the subject of a civil action under this paragraph may not be consummated until the court issues a final decision in such action. .