The FTC and DOJ Seek Public Comments on Potential Changes to HSR Premerger Notification Process

In February 2026, a federal district court struck down a rule that went into effect in February 2025[1] expanding the scope of information required to be reported on the Hart-Scott-Rodino Act Premerger Notification Form.[2] As explained in our earlier note,[3] on March 19, 2026, the Fifth Circuit denied the Federal Trade Commission’s request for a stay of the district court’s order pending appeal.[4] As a result, the FTC is now accepting HSR filings made using the HSR form that was in place before the February 2025 rule changes, but is also accepting HSR filings made pursuant to the newer HSR form by filers who choose voluntarily to do so.[5]

On March 25, 2026, the FTC and the Antitrust Division of the U.S. Department of Justice (the “Agencies”) jointly announced that they are “considering engaging in a new rulemaking process” to make “necessary updates” to the HSR premerger notification process, “informed by lessons learned from experience with the Updated Form.”[6] In the announcement, the FTC stated that it “continues to believe that the prior, nearly 50-year-old form is insufficient to review modern mergers and acquisitions.”[7] To identify areas for future improvements to the HSR form and instructions, the Agencies are requesting public comment on the implementation and effects of the 2025 HSR rule changes and whether those changes achieved their purpose of enabling faster and more efficient review of premerger notifications without imposing undue burdens on filers.

In the request for information accompanying the Agencies’ announcement, the Agencies enumerated several areas in which additional modifications to the HSR form and associated regulations may be warranted “based on developments affecting the HSR review process that have emerged over the past year.”[8] These areas include the following:

• Involvement of Foreign Governments and Other Foreign Persons: The Agencies signaled that they are considering requiring filers to disclose the submission of any filings with the Committee on Foreign Investment in the United States (“CFIUS”) relating to the transaction, and to provide additional information regarding the involvement of sovereign wealth funds in the transaction and the sovereigns with which they are affiliated.
• Transactions Involving Suppliers to the Department of War: The 2025 updates to the HSR form required filers to provide information about their contracts with the U.S. military and intelligence agencies that relate to products and services where there is an overlap between the parties to the transaction. To “facilitate closer and more efficient coordination between the Agencies and DOW, and to ensure a competitive defense supply chain,” the Agencies are now considering whether to require information regarding contracts with and sales to the United States, regardless of any overlap between the transaction counterparties.[9]
• The Scope of the HSR Exemption for Acquisitions Made Solely for the Purpose of Investment: An exemption to HSR reporting requirements allows the acquisition of up to 10% of the outstanding voting securities of an issuer without making an HSR filing, if the acquisition is made “solely for the purpose of investment.”[10] The Agencies stated that business may benefit from additional guidance on when this exemption applies, and are considering making explicit that the exemption does not apply “when the acquiror uses its ownership of voting securities to influence a corporation’s competitive decision-making, including the corporation’s policies that may affect prices, quality, or output.”[11]
• Reporting for Non-Traditional Transaction Structures: The Agencies observed that they “have seen an uptick in business transactions that parties are not reporting to the Agencies under the HSR Act, yet which have the practical effect of eliminating a market participant.”[12] These include “acquihires” and “reverse acquihires,” and certain transactions involving non-exclusive intellectual property licenses. The Agencies also noted that the purchase of convertible securities—which generally is not subject to HSR Act reporting—allows the parties to consummate a transaction that effectively eliminates a competitor from the market. The Agencies are seeking comment on whether changes to the HSR form and regulations are appropriate to require reporting for these and other “novel transaction forms.”[13]
• HSR Reporting for Proposed Structural Remedies: In transactions that may lessen competition, the Agencies sometimes work with the parties to a transaction to negotiate remedies that would reduce anticompetitive effects, such as the divestiture of certain assets to be held by the proposed buyer. Stating that remedies proposed in the middle of a Second Request process or after commencement of litigation deny the Agencies the opportunity to evaluate the competitive effects of the restructured transaction, the Agencies are exploring whether these remedy proposals should be subject to a separate or supplemental HSR reporting process.
• Single-Family Housing Acquisitions: Referring to President Trump’s recent executive order directing the heads of the Agencies to “review substantial acquisitions, including series of acquisitions, by large institutional investors of single-family homes in local single-family housing markets for anti-competitive effects,”[14] the Agencies announced that they are considering whether changes to the HSR regulations relating to such acquisitions are appropriate.

In addition to the potential new modifications listed above, the Agencies have asked the public to comment on aspects of the newer—but now vacated—HSR Form for potential areas of improvement and refinement. The Agencies have requested public comments to be received by May 26, 2026. Sullivan & Cromwell will continue to alert clients of any further developments affecting HSR filings.