Nov. 16--Brian Moynihan is facing a make-or-break moment tomorrow in his quest to become head of America's largest bank, as he and two other Boston-connected executives head to Washington for a congressional hearing on Bank of America's controversial takeover of Merrill Lynch.

Moynihan, a former top executive at FleetBoston Financial and now head of Bank of America's powerful retail unit, has been considered a top contender to replace Ken Lewis, the embattled chief executive of the Charlotte-based banking behemoth.

But Moynihan, 50, is now considered by some to be damaged goods due to his own ties, as a top executive at Bank of America, to the Merrill Lynch deal last year.

The House committee is expected to zero in on allegations that Bank of America misled shareholders about details of the Merrill deal and how the merger resulted in a multibillion-dollar government bailout.

The fact that Moynihan has only limited experience running Bank of America's retail unit is also considered a strike against him by some disgruntled investors who want an outsider to lead the bank after Lewis leaves.

Also complicating matters is that Moynihan allowed his law degree to lapse before last year's crucial negotiations leading up to Bank of America's takeover of Merrill Lynch.

So his appearance tomorrow before the House Committee on Oversight and Government Reform is critical to his chances of becoming the new boss at Bank of America.

"If he doesn't present himself well, it will destroy his chances," said Tony Plath, a finance professor at the University of North Carolina at Charlotte. "A lot is riding on this hearing. He has to really distinguish himself. He has to come across as CEO-like, capable of running (the company)."

Moynihan, who is well-known and respected in Boston circles, has a lot going for him -- most importantly the fact that three of six members of the bank's executive search committee are former FleetBoston directors. That fact also has Charlotte officials worried that the bank's headquarters will be shifted north, likely to New York, no matter who succeeds Lewis.

Charles "Chad" Gifford, former CEO of FleetBoston before it was sold five years ago to Bank of America, is reportedly a big Moynihan booster. Thomas May, chief executive of Nstar, and Thomas Ryan, head of R.I.-based CVS Caremark Corp., also know Moynihan personally.

But the trick is convincing the rest of the board and skeptical investors that Moynihan is up to the job.

Bank of America, which hopes to announce a successor to Lewis before Thanksgiving, reportedly is looking both inside and outside for other candidates, though Moynihan's name keeps popping up as a top choice.

Dick Bove, an analyst at Rochdale Securities, used to think Moynihan was the odds-on favorite to become the new boss. But now he's not so sure.

Bove said criticism of Moynihan is "toally unfair," including complaints that he allowed his law license to lapse last year, though Securities and Exchange Commission rules didn't require him to have an active one while working on the Merrill deal.

"But all these (criticisms) add up and work to Brian Moynihan's detriment," said Bove.

Jon Finger, head of Finger Interests Ltd., is a harsh critic of Bank of America's recent moves -- and he said Moynihan's involvement in the Merrill deal should disqualify him from becoming CEO. Finger's firm owns about one million shares of Bank of America.

But Plath said he's not counting Moynihan out, though he faces tough hurdles. "They (Moynihan's supporters) have to find a way to sell him to outside shareholders," he said.

Moynihan, Gifford, May and Ryan were not available for comment last week.

A spokesman for Bank of America would only say the institution is pressing ahead with its search for a Lewis' replacement.

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