On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit refused to stay a recent district court order striking down the Federal Trade Commission’s (FTC) expanded Hart–Scott–Rodino Act (HSR) premerger reporting form and related rules, which had been in use since February 2025.
As a result of the Fifth Circuit’s action, merging parties may now revert to submitting the HSR form used before February 10, 2025, which requires the parties to submit substantially less information and fewer documents about the contemplated transaction.
Merging parties may welcome the return to the old form, but the more burdensome rules could snap back into effect if the FTC pursues and prevails on its appeal of the merits of the district court’s decision. Alternatively, the FTC has also announced a process to craft a third version of the form, which could be more likely to survive legal scrutiny.
The ongoing dispute about the scope of the information that must be submitted with an HSR filing has no effect on (1) whether transactions must be reported under the HSR Act; or (2) the substantive factors the federal antitrust enforcement agencies analyze in evaluating the likely competitive effects of reported transactions.
How Did We Get Here?
A Final Rule establishing the 2025 form was unanimously approved by the FTC in October 2024, toward the end of the Biden Administration. By the FTC’s own estimates, submitting a notification on the 2025 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 that could be useful to the antitrust agencies evaluating the competitive impact of a proposed transaction.
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, alleging that the expanded HSR requirements were unnecessary, unlawful, and an abuse of administrative power. On February 12, 2026, the district court granted summary judgment in favor of the private plaintiffs, holding that the FTC exceeded its statutory authority and engaged in arbitrary and capricious rulemaking. The court also noted that the agency failed to demonstrate a rational relationship between the benefits and costs of the 2025 form, failed to consider less burdensome alternatives, and did not substantiate enforcement needs.
The FTC appealed the district court’s decision to the Fifth Circuit. While the appeals court had granted a short administrative stay, on March 19, 2026, it denied the FTC’s motion for a stay during the pendency of the FTC’s appeal, allowing the district court’s order to become effective immediately.
Implications for HSR Notifications
Which form to use? Is there a choice?
With the 2025 form off the books, the effective HSR rules governing the form of notification are the ones that were in force before the Final Rule was implemented, and these rules mandate the use of the old form. The old form has fewer requirements for the information and supporting documents parties must submit. For example, in contrast to the 2025 form, under the old form there is no need to:
- Collect and review transaction-related documents from a “supervisory deal team lead.”
- Track drafts of competition-related transaction documents reviewed by a single board member for submission with the filing.
- Identify and describe competing products and services (beyond reporting overlapping NAICS code revenues).
- Identify and report sales for top 10 customers of competing products and services, overall and by customer segment.
- Identify and provide information about supply relationships.
- Identify the acquiring company’s officers and directors who are also officers or directors of other entities operating in the same industry as the target.
Within hours of the Fifth Circuit order, the FTC issued guidance that for the time being it would accept filings under either the old form or the 2025 form. This flexibility appears to be an accommodation to merging parties that may have been preparing to file on the 2025 form in the coming days. The FTC has not said how long it will give parties the option to submit either form.
New rulemaking is expected soon
Just before the Fifth Circuit’s order, the FTC disclosed that it is planning to introduce another modified, more streamlined HSR form. A week before the Fifth Circuit’s denial of a stay, Jana Seidl, FTC Chair Andrew Ferguson’s attorney advisor for competition, confirmed publicly that a request for public comment on a new version of the HSR notification form and related rules “should be ready soon.” She explained that the new proposed rule will draw on the FTC’s 13-month experience with filings on the 2025 form to better balance the burden on filers and the benefit to the enforcement agencies of obtaining certain key information about the transaction at the earliest stage of review.
A pared-down version of the 2025 form would be consistent with Ferguson’s views. In voting to approve the Final Rule during the final year of President Biden’s administration as a minority commissioner, Ferguson indicated that he would have preferred a more tailored approach to the 2025 form. But he also recognized that the 2025 form was a “common-sense” fix because the old form did not provide the agencies sufficient insight into the corporate structure of the parties, relied on overbroad indicia of potential product overlaps, and lacked information about vertical relationships. This shortage of information, Ferguson suggested, actually slowed the agencies’ review of transactions during the initial HSR waiting period after a filing.
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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