The year-old expansion of the Hart-Scott-Rodino (HSR) premerger reporting requirements remains in question after a federal district court judge in Texas struck them down as illegal on February 12, 2026. The Fifth Circuit has since issued a temporary administrative stay, keeping the prior HSR requirements in place for at least one more week.
Although these rulings have created uncertainty about the exact requirements for the initial HSR filings in the near term, they do not affect which transactions must be reported or how the federal antitrust enforcement agencies analyze the likely competitive effects of reported transactions.
Background
The HSR Act requires parties engaged in transactions that are valued above $133.9 million and meet certain other criteria to notify the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) Antitrust Division of their proposed transactions and observe a statutorily mandated waiting period before closing. The law authorizes the FTC, with concurrence of the DOJ Antitrust Division, to determine the format and supporting materials for the premerger notifications.
The FTC promulgated the original HSR form in 1978 and has been refining it over the years, but it had never undertaken a comprehensive overhaul until the 2024 Final Rule, which expanded the HSR premerger reporting requirements and introduced a new filing form that became effective on February 10, 2025.
By the FTC’s own estimates, the new form required triple the amount of work from the filing parties, including in-depth information about their customers, ordinary-course documents, supply relationships, interlocking directorates, and other topics useful to the antitrust agencies in evaluating the competitive impact of a proposed transaction.
The Final Rule that the district court vacated was unanimously approved by the full five-member FTC on October 10, 2024, toward the end of the Biden Administration. Current FTC Chair Andrew Ferguson, serving at the time as one of the two minority Republican commissioners, issued a statement that characterized the Final Rule as a “lawful improvement over the status quo” and a “common-sense” fix for shortcomings in the old HSR notification form.
In January 2025, the U.S. Chamber of Commerce and other business groups sued the FTC in the Eastern District of Texas to block the rule but did not seek a preliminary injunction or a temporary restraining order to prevent the rule from taking effect. The Final Rule became effective on February 10, 2025, and merging parties have been submitting HSR notifications under the new rule since then.
Court Decisions
The private plaintiffs alleged that the FTC’s expanded HSR requirements were unnecessary, unlawful, and an abuse of administrative power. The plaintiffs and the FTC filed cross-motions for summary judgment.
On February 12, the district court granted summary judgment for the plaintiffs, finding that the FTC exceeded its statutory authority and engaged in arbitrary and capricious rulemaking. The court noted that the agency failed to demonstrate a rational relationship between the Final Rule’s benefits and costs, failed to consider less burdensome alternatives, and did not substantiate enforcement needs. The court also noted that the FTC did not identify any illegal merger that the prior HSR form had failed to prevent and criticized the agency for not explaining why it rejected less costly options such as voluntary submissions.
The FTC appealed the decision, and on February 19, the Fifth Circuit granted an administrative stay to consider the FTC’s motion for a stay pending appeal. The court directed briefing on the stay to be completed by February 26, and ordered that the district court’s ruling be stayed “until further order of our court.”
Implications for HSR Notifications
Uncertainty about filing requirements in the future
The Final Rule remains in effect at this point. Based on the briefing schedule the Fifth Circuit set out for the motion for a stay pending appeal, the administrative stay is expected to remain in place for at least another week. The court may then issue a stay pending appeal, which would further extend the time the current HSR form is in use. Appeals before the Fifth Circuit take approximately 10–12 months to resolve.
Parties contemplating reportable transactions with filings planned for early March or later will face uncertainty about what information and documents they may have to submit with their initial notifications. To ensure a timely filing of their notifications, merging parties may need to prepare multiple variants of their filings and/or anticipate delays in the transaction timetables.
Any discussion of the outcome of the appeal would be speculative, but both the FTC leadership’s support for the Final Rule and the FTC’s record at the Fifth Circuit are factors to consider. Although the Trump Administration and current FTC agency leadership have pursued an anti-regulatory agenda, the FTC has vigorously defended the Final Rule against the Chamber of Commerce lawsuit and appears confident that it could prevail on appeal.
The Fifth Circuit, however, is known for its stance against regulatory overreach and its criticism of other FTC rulemaking. Just over a year ago, it struck down the FTC’s Combating Auto Retail Scams Rule for, among other reasons, a failure to follow proper procedural requirements in the rulemaking process. More recently, the FTC decided to abandon the appeal of its Noncompete Rule before that circuit court (Ryan LLC v. FTC) and to pursue case-by-case enforcement instead.
If the Fifth Circuit leaves the district court’s judgment in place for the duration of the appeal, filers will have to revert to the form in use before the Final Rule went into effect. Since some requirements in that form are outdated, compiling the necessary information may take more time and resources than in the past.
New rulemaking may ensue if the Final Rule is overturned
If the Final Rule is set aside during the appeal or permanently struck down, there is a reasonable possibility that the FTC could try to revise the HSR form to suit its enforcement needs in an increasingly complex market environment, while performing the type of rulemaking analysis set out in the district court’s opinion. After a full year of filings under the current form, the agency may also be in a better position to demonstrate the benefit of obtaining certain information at the earliest stage of a merger review.
Separately, the current HSR notification form implemented a requirement from the Merger Filing Fee Modernization Act of 2022 (enacted as part of the Consolidated Appropriations Act, 2023) that parties disclose subsidies received from certain foreign nations. Since this is a congressional mandate, the FTC would need to promulgate an alternative rule to collect this information even if required to revert to the prior HSR notification form because of this litigation.
No substantive changes to the analysis of competitive effects
While the required information and supporting documentation required under the prior and current HSR forms differ, the information in the filing ultimately serves the same purpose: to assess whether a proposed transaction may substantially lessen competition. The principles and methodology for that analysis remain unchanged. Likewise, the statute itself, including its recently indexed thresholds and filing fees, the criteria and exemptions related to reporting obligations, and the federal antitrust agencies’ investigative process and tools all remain in place.
If you have any questions, or would like additional information, please contact one of the attorneys on our Antitrust team or one of the attorneys on our Mergers & Acquisitions team.
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