It's ironic that in an election year when Democrats have swept to power promising a stronger regulatory hand across financial services, in a year when the reality of too-big-to-fail and systemic risk has been felt keenly, that the law capping national retail deposits at 10 percent is likely to be overturned, allowing the nation's big banks to grow even bigger through M&A. The Independent Community Bankers of America, for one, is not happy and CEO Camden Fine is lobbying to have Congress lower the cap to five percent; he and others argue that the dangers of concentrating power in a few national banks has been made plain and overturning the cap is foolhardy.

But the ICBA faces long odds. The fast moving events of the last few months have altered the on-the-ground reality and made the rule effectively dead, just as the Travelers/Citicorp merger forced Congress to overturn Glass-Steagall, which had for decades separated commercial banks and investment banks. By late October three banks had surpassed the 10 percent barrier after buying weak competitors. Bank of American held the top spot with 11.31 percent market share, Wells Fargo had 11.18 percent, and JPMorgan Chase had 10.2 percent, according to SNL Financial. That brings the top three banks' marketshare to 32.69 percent, compared to a year ago, when the top three banks, BofA, JPMorgan Chase and Wachovia, held just under 23 percent.

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