The FTC/DOJ Take Another Swing at a New HSR Premerger Reporting Form

Summary — The FTC and DOJ have launched a joint public inquiry into the effectiveness of the Hart-Scott-Rodino (HSR) premerger notification process, which may lead to a revised filing form. The move follows ongoing litigation challenging the 2025 updated HSR form and reflects concerns over increased filing burdens and regulatory clarity. Comments are due May 26, 2026.

The Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) (together with the FTC the “Agencies”) have launched a joint public inquiry seeking comments on the effectiveness of the Hart-Scott-Rodino Act (HSR) Premerger Notification requirements. The inquiry is expected to be a prelude to the issuance of a new HSR form by the Agencies later this year. It comes as a response to a recent court ruling that, at least on an interim basis, has invalidated the 2025 HSR Notification form (“Updated Form”). Comments may be submitted to the Agencies until May 26, 2026, at 11:59 p.m. EDT.

Background

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 requires parties to mergers valued above a certain size (currently $133.9M) to obtain the Agencies' approval before closing their transactions. For nearly fifty years, parties submitted a relatively simple form that provided regulators with basic information to assess potential anticompetitive effects of a contemplated merger. 

In late 2024, however, the Agencies significantly modified the premerger notification form to require substantially more information from filers. The Updated Form added twenty categories of information that merging parties must provide to the Agencies, increasing the time, labor, and financial costs associated with filing. Although the FTC acknowledged that the Updated Form would likely triple the amount of time required to complete a filing, the FTC adopted the rule and the Updated Form went into effect on February 10, 2025.  

The Challenge to the Form

After the FTC approved the Updated Form, the Chamber of Commerce filed suit against the FTC in the U.S. District Court for the Eastern District of Texas. In Chamber of Commerce of the United States of America v. FTC, the district court vacated the Updated Form, stating that it was not “necessary and appropriate” as required by the Administrative Procedure Act (APA) but rather “arbitrary and capricious.” Judge Jeremy D. 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.” For this reason, the Court held that the new rule pursuant to which the new form was promulgated was not a permissible exercise of the FTC’s discretion under the APA. 

On March 19, 2026, a panel of the U.S. Court of Appeals for the Fifth Circuit denied the FTC’s motion for a stay of the Eastern District of Texas ruling pending appeal. In response, the Agencies announced that filers would have the option to file under either form while the appeal proceeds and, as noted above, announced that they were taking public comments about the HSR process. 

To date, the Fifth Circuit has not issued a ruling on the merits of the appeal, nor has it indicated when such a ruling will likely be issued. Given the delay, and the likelihood that the request for comments will lead to another new form, the Fifth Circuit’s ruling may prove to be largely inconsequential, regardless of the ruling.

Request for Public Comment

The Agencies' request for public comments focuses on several of the issues addressed in the Eastern District of Texas ruling. For example, they request input from the public about whether the burdens of completing the Updated Form outweigh the utility of the information provided to the Agencies, particularly for routine or low-risk transactions. By providing the public with an opportunity to be heard on this issue, and to thereafter make any adjustments to a new form that might be appropriate, the Agencies undoubtedly intend to try to ensure that any new form will pass muster under the Administrative Procedures Act. To that end, the Notice also seeks comments from the public regarding whether additional modifications to the HSR process may be warranted based upon a host of other issues, including the rise in non-traditional transaction structures, transactions involving the Department of Defense, single-family housing acquisitions, and sovereign wealth funds. 

Next Steps

Interested parties may submit comments through May 26, 2026, at the website regulations.gov. As noted above, it is likely that, after reviewing these comments, the Agencies will introduce a new HSR form, and not wait for a ruling from the Fifth Circuit on the validity of the 2025 form.