FTC Emergency Appeal Keeps New HSR Requirements in Place (at Least for Now)

Summary — The Fifth Circuit has paused a federal district court decision that struck down the FTC’s 2025 Premerger Notification requirements, allowing them to remain in effect while the appeal moves forward. On an expedited basis, the Court will consider whether the FTC exceeded its rulemaking authority when the agency significantly expanded the amount of information required from merging parties in their Hart-Scott-Rodino submissions.

On February 19, 2026, the United States Court of Appeals for the Fifth Circuit granted emergency relief to the Federal Trade Commission (FTC), staying an Eastern District of Texas decision on February 12, 2026, that held that the 2025 revisions to the Hart-Scott-Rodino Act Premerger Notification requirements were an unlawful exercise of the FTC’s rulemaking authority. The Court of Appeals also set an expedited briefing schedule for the FTC’s appeal. As a result of the Fifth Circuit’s ruling, the 2025 Premerger Notification requirements will remain in effect pending a decision on the issue by the Fifth Circuit.

Background on the HSR Act

Since 1976, pursuant to the Hart-Scott-Rodino Act, merging parties seeking to consummate transactions over a certain size have been required to obtain approval from the Department of Justice (DOJ) and FTC prior to closing their deals. To gain approval, for almost 50 years the parties were required to submit a relatively simple form that provided the regulators with some basic information about the parties and the deal. This filing initiates the review process.

The New HSR Form

However, in late 2024, the HSR form was significantly modified by the Federal Trade Commission. Separate forms were created for the “Acquiring Entity” and the “Acquired Entity,” and each of these forms significantly increased the information required to be submitted by the merging parties with their initial filing. For example, merging parties must provide 20 additional categories of information, including narrative descriptions of the transaction rationale and overlap between the parties. Despite protests from numerous entities about the increased burden of the new requirements (including the U.S. Chamber of Commerce)—and the FTC’s acknowledgement that the new forms would likely triple the amount of time required to complete them—the new rule was adopted by the FTC and went into effect on February 10, 2025.

The Challenge to the Form

Upon approval of the new form by the FTC, the Chamber of Commerce immediately commenced a lawsuit challenging the FTC’s actions in the Eastern District of Texas. Last week, that challenge proved successful. Judge Jeremy D. Kernodle vacated the FTC’s new rule, stating that it was not “necessary and appropriate” as required by the Administrative Procedure Act (APA), but rather “arbitrary and capricious.” In reaching this conclusion, Judge Kernodle stated that “the FTC’s vague and conclusory assertions about preventing illegal mergers does not justify the significant costs of the Final Rule’s new form—costs to be borne by thousands of annual HSR filers.” In short, because the Court found that the FTC had failed to demonstrate that the rule’s benefits to U.S. antitrust enforcement outweighed the costs pushed onto corporate filers, the Court held that the new rule was not a permissible exercise of the FTC’s discretion under the APA.

Next Steps

Until the Fifth Circuit issues a ruling on its expedited review, merging companies should remain compliant with the new Premerger Notification forms and submit the additional information required under the FTC’s 2025 HSR Rule.