DOJ’s New “expedited Consideration” Merger Review Framework: Potential Benefits And Concerns

On July 23, 2026, the Antitrust Division of the U.S. Department of Justice (DOJ) announced that it was resuming “targeted” Second Request investigations and published a new Model Timing Agreement (MTA). The MTA offers merging parties an optional “Expedited Consideration” process based on an initial “Priority Production” of documents and information. As seen from a recently announced termination of a DOJ investigation, DOJ intends for the Expedited Consideration process to result in shorter and more focused reviews. The devil will be in the details: Accepting the terms of the MTA may reduce parties’ costs and permit a swifter resolution of merger investigations. However, where timing agreement negotiations drag out or when DOJ’s concerns are not resolved by the Expedited Consideration, the parties may end up worse off, having lost compliance time and surrendered leverage. 

Background

Under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act), parties to certain mergers and acquisitions must notify DOJ and the Federal Trade Commission (FTC; together with DOJ, the Agencies) and cannot consummate their transaction until the waiting period under the HSR Act has expired or been terminated. If either of the reviewing Agencies has serious competition concerns about the transaction, it may issue a Second Request for additional documents, information, and data. The parties may not close until they substantially comply with the Second Request and a second waiting period expires or is terminated. Second Requests historically affect only about 2% to 3% of reported HSR transactions, but responding can require extensive document and data production, depositions, and negotiations with the staff of the Agencies, often over many months.

How Expedited Consideration works

Should parties that receive Second Requests opt for Expedited Consideration, DOJ will agree to structure its review to prioritize information and documents that relate to issues that it decides are potentially determinative. The prioritized information and documents (the Priority Production) are identified in an attachment to the MTA, and while the Expedited Consideration process remains underway, the parties are expected to furnish only the Priority Production materials. 

Before production begins, each party must explain how it searched for and collected the materials, and productions must be made on a rolling basis. DOJ will offer a meeting with the Antitrust Division’s Front Office within 21 days of completion of the Priority Production. Within 14 days after that meeting (and therefore within 35 days after completion of the Priority Production), DOJ will state whether it intends to close the investigation based on its review of the Priority Production, narrow the Second Requests, or require full compliance with the Second Requests. 

In the event that DOJ requires full compliance with the Second Request, the parties agree in the MTA that:

• the period during which the parties may not close their transaction, and in which DOJ can bring a preemptive lawsuit challenging the transaction, will be 60 days—instead of the usual 30—after the parties certify substantial compliance with the Second Requests, although the parties may close earlier if permitted by DOJ;
• the parties will provide DOJ with fourteen  days’ written notice before consummating the proposed acquisition unless they have DOJ’s written concurrence to close within a shorter period;
• if DOJ challenges the transaction, it will not be required to obtain preliminary injunctive relief; and 
• the parties will not close the transaction until the 10th day after a judgment is entered that does not prohibit consummation of the transaction.

Potential benefits 

The process could offer time and cost savings when the competitive issues are confined to specific business segments or operations or can be addressed through a circumscribed set of documents and data. There is a substantial benefit in getting to a Front Office meeting early in the process, irrespective of whether the process ends with the expedited review. The Priority Production could enable DOJ to close its investigation earlier than it otherwise might or narrow its remaining informational requests.

Potential concerns

The MTA sets no fixed limits on custodians, requests, or data demands. DOJ may have a very different idea than the parties as to what constitutes a limited number of custodians or a limited amount of data or information. Moreover, though the MTA has certain prescribed timelines, it also features various hidden potential sources for delay that could result in a process that is somewhat less expedited than advertised. For example, reaching agreement with DOJ on a custodian list, even a truncated one, can take weeks. And before DOJ will agree to a set of priority data specifications under the MTA, the parties must provide a response to Specification 1(f), which seeks a list of all relevant databases. Gathering this information is often highly burdensome and can take months. 

Nor does Expedited Consideration guarantee any outcome, since DOJ may ultimately require full compliance with the Second Requests. Given this and most parties’ desire to close their deals as soon as possible, parties may decide they must continue ordinary Second Request work while preparing the Priority Production and awaiting DOJ’s decision. They could therefore bear the costs of both tracks without actually shortening the investigation (in fact, it could end up taking longer than if they had opted to comply with the full Second Request from the outset). The 60-day post-compliance period may offset earlier savings, and the litigation provisions require parties to surrender leverage and an opportunity for speedy judicial review that they otherwise might retain by forcing DOJ to seek emergency relief. Planning is further complicated because the FTC has not adopted the MTA, and the reviewing Agency may not be known when the HSR filing is made.

Conclusion 

DOJ has been signaling to the business community an intention to conduct merger review on an expedited basis. On August 19, 2026, the Agency cleared a proposed merger between Seismic Software, Inc., and Highspot Inc., both providers of sales enablement software platforms to businesses. In announcing its decision to clear the transaction, the Agency reported that the parties had entered into a timing agreement that prioritized the production of evidence and that the decision to close the investigation was made after a targeted review of key competitive questions.

Whether this model will work for the parties in other transactional settings is a question that will require consideration on a case-by-case basis. Parties will need to assess whether their transaction is suited to the Expedited Consideration process or whether proceeding directly toward full compliance offers a more predictable path.

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