The second problem is that the approach taken in the regulation in pursuit of consistency was one that essentially contemplated an inquiry into the intent of the bankers making trades to determine, for example, whether the trades were legitimate market making.
The agencies knew this approach would be complicated when we adopted it, but it seemed the best way to achieve consistency, at least over time. I think the hope was that, as the application of the rule and understanding of the metrics resulting from it evolved, it would become easier to use objective data to infer subjective intent. This hasn’t happened, though.